D., et al v. Abbott, et al

United States Court of Appeals
for the Fifth Circuit

No. 19-41015

M. D., by next friend Sarah R. Stukenberg; Z. H., by next friend
Carla B. Morrison; S. A., by next friend Javier Solis; A. M., by
next friend Jennifer Talley; J. S., by next friend Anna J. Ricker;
H. V., by next friend Anna J. Ricker; L. H., by next friend Estela
C. Vasquez; C. H., by next friend Estela C. Vasquez; A. R., by
next friend Tom McKenzie, individually and on behalf of
all other similarly situated,

Plaintiffs—Appellees,

versus

Greg Abbott, in his official capacity as Governor of
the State of Texas; Courtney Phillips, in her official
capacity as Executive Commissioner of the Health and
Human Services Commission of Texas; Jaime Masters, in
her official capacity as Commissioner of the
Department of Family and Protective Services of the
State of Texas,

Defendants—Appellants.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:11-CV-84

United States Court of Appeals
Fifth Circuit
FILED
October 16, 2020

Lyle W. Cayce
Clerk
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Before Barksdale, Elrod, and Ho, Circuit Judges.*
James C. Ho, Circuit Judge:
District courts do not have discretion to ignore mandates issued by
this court. A previous panel of this court ordered the district court to begin
implementing the permanent injunction in this case “without further
changes.” The district court made further changes anyway. We reverse and
remand.
* * *
Plaintiffs are a certified class of minor children in the permanent
managing conservatorship (PMC) of the Texas Department of Family
Protective Services. About ten years ago, they brought a series of § 1983
claims alleging that the Texas foster-care system violated their substantive
due process right “to be free from an unreasonable risk of harm.” M.D. ex
rel. Stukenberg v. Abbott (“Stukenberg I”), 907 F.3d 237, 243 (5th Cir. 2018).
The district court agreed and issued a wide-ranging permanent injunction
imposing “sweeping changes” on the Texas foster-care system. Id. The
state appealed.
This court agreed with some of the district court’s constitutional
holdings, but vacated and remanded the injunction to the district court for
“modification consistent with this opinion.” Id. at 287–88. The district
court accordingly made additional modifications to the injunction. The state
appealed again.
Once again, this court agreed with some of the district court’s
changes, but disagreed with others. M.D. ex rel. Stukenberg v. Abbott
(“Stukenberg II”), 929 F.3d 272, 275 (5th Cir. 2019). This time, however,
we instructed the district court to “begin implementing, without further

*
Judge Barksdale concurs only in the judgment.
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changes, the modified injunction with the alterations we have made.” Id. at
281.
Notwithstanding our specific instruction not to make “further
changes” to the injunction, the district court did just that.
In Stukenberg II, we approved an injunction requiring all licensed
PMC residences housing more than six children to provide 24-hour
“awake-night” supervision—that is, at least one supervising adult awake at
all times. Id. at 276–77. The rationale for this requirement is simple: The
more unrelated foster children living in the same home at the same time, the
greater the risk of harm. Not surprisingly, then, the injunction did not limit
the state’s ability to move PMC children from overcrowded homes into less
crowded homes.
On remand, however, the district court expanded the injunction
again—this time enjoining the state “from moving any PMC child from their
current . . . placement as a result of enforcement of the Court’s requirement
for 24-hour awake-night supervision unless application is made to the Court
. . . prior to [the] proposed discharge.”
This modification demonstrably constitutes a “further change” to the
injunction. Before the modification, the state could move PMC children
from larger homes to smaller homes at its discretion, without violating the
injunction. After the modification, the state could no longer move PMC
children “without permission” from the district court.
It is black-letter law that a district court must comply with a mandate
issued by an appellate court. See, e.g., Gen. Universal Sys., Inc. v. HAL, Inc.,
500 F.3d 444, 453 (5th Cir. 2007) (“The mandate rule requires a district
court on remand to effect our mandate and to do nothing else.”). We have
underscored that the mandate rule is “essential to the orderly administration
of justice” because it brings finality to disputes. United States v. Pineiro, 470
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F.3d 200, 205 (5th Cir. 2006). The rule is “aimed at preventing obstinate
litigants from repeatedly reasserting the same arguments and at discouraging
opportunistic litigants from appealing repeatedly in the hope of acquiring a
more favorable appellate panel.” Id.
Plaintiffs claim that the district court did not violate the mandate rule
because a court “invok[ing] equity’s power to remedy a constitutional
violation by an injunction mandating systemic changes to an institution”
generally has “the continuing duty and responsibility to assess the efficacy
and consequences of its order.” Brown v. Plata, 563 U.S. 493, 542 (2011). As
Plaintiffs point out, we recited this general principle in Stukenberg II, stating
that “[a] district court undoubtedly has the equitable power to oversee
compliance with its own injunction.” 929 F.3d at 278. “[E]quitable decrees
that impose a continuing supervisory function on the court commonly . . .
contemplate the subsequent issuance of specific implementing injunctions.”
Moore v. Tangipahoa Parish Sch. Bd., 843 F.3d 198, 200 (5th Cir. 2016)
(alterations in original) (citation omitted).
But judges disagree on occasion over the proper exercise of equitable
powers, just as judges disagree on occasion over the proper interpretation of
statutes. When that happens, appellate courts must make the final
decision—and once the decision is made, it must be followed. And that, of
course, is the whole purpose of the mandate rule: “A district court on
remand . . . may not disregard the explicit directives of [the appellate] court.”
Perez v. Stephens, 784 F.3d 276, 280 (5th Cir. 2015) (quotations omitted).
To elevate general equitable principles over the mandate rule is to
challenge the very principle of appellate review—including any number of
other doctrines inherent in our judicial hierarchy, such as vertical stare decisis.
We do not question the good faith of the district judge in this case. But make
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no mistake: Accepting Plaintiffs’ approach would replace judicial hierarchy
with judicial anarchy.
Plaintiffs alternatively contend that the modification was a necessary
“administrative measure” to prevent Defendants from “evad[ing] the
24-hour supervision requirement by shuffling PMC children around on the
fly” “so that a given facility remains below the seven-child threshold at a
given moment.” Put another way, Plaintiffs disagree that our prior mandate
adequately protects them from harm. But a district court cannot ignore the
terms of a mandate it disagrees with any more than we can ignore the words
of a federal statute that we disagree with.
If it is necessary to modify an injunction in the face of a mandate that
forbids all further changes, the solution is not for the district court to update
the injunction on its own—but for the parties to litigate the matter to the
extent our procedures permit. See, e.g., Deutsche Bank Nat’l Trust Co. v.
Burke, 902 F.3d 548, 551 (5th Cir. 2018) (“[W]e will only reexamine issues
of law addressed by a prior panel opinion in a subsequent appeal of the same
case if (i) the evidence on a subsequent trial was substantially different,
(ii) controlling authority has since made a contrary decision on the law
applicable to such issues, or (iii) the decision was clearly erroneous and would
work a manifest injustice.”) (quotations omitted). Relief of this kind may be
“rarely” granted, to be sure. Id. But if that seems like strong medicine, the
lesson is for appellate courts to draft their mandates carefully, not for district
courts to ignore established rules of appellate procedure.
* * *
We repeat what we said in Stukenberg II. “The case is remanded to
the district court to begin implementing, without further changes, the
modified injunction with the alterations we have made.” 929 F.3d at 281.
We reverse and remand.
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