Professional Documents
Culture Documents
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No. 16-___
Scott A. Keller
Solicitor General
Jeffrey C. Mateer
First Assistant Attorney General
Joseph D. Hughes
Philip A. Lionberger
Assistant Solicitors General
Thomas A. Albright
Assistant Attorney General
Counsel for Petitioners
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No. 16-___
In re: Greg Abbott, et al.
Petitioners Counsel
Greg Abbott,
Ken Paxton
in his official Capacity as Governor of the Jeffrey C. Mateer
State of Texas
Scott A. Keller
Joseph D. Hughes
Chris Traylor,
Philip A. Lionberger
in his official capacity as Executive
Thomas A. Albright
Commissioner of the Health and Human Angela V. Colmenero
Services Commission of the State of
Andrew B. Stephens
Texas
Marc Rietvelt
Office of the Attorney General
John J. Specia, Jr.,
in his official capacity as Commissioner of
the Department of Family and Protective
Services of the State of Texas
Respondent
The Honorable Janis Graham Jack
United States District Court for the
Southern District of Texas, Corpus
Christi Division
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Respondents
M.D., by next friend
Sarah R. Stukenberg
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Respondents Counsel
Sara Bartosz
Christina W. Remlin
Aaron Finch
Joshua Rosenthal
Adam Denebrow
Adriana Teresa Luciano
Christina Wilson
Elizabeth Pitman
Ira Lustbader
Jessica Polansky
Melissa Cohen
Patrick Almonrode
Rachel Brodin Nili
Sarah T. Russo
Stephen Dixon
William Kapell
CHILDRENS RIGHTS
Reagan W. Simpson
R. Paul Yetter
Dori Kornfeld Goldman
Lonny Hoffman
Christian J. Ward
Christopher D. Porter
Yetter Coleman LLP
Barry F. McNeil
David A. Dodds
Richard T. Behrens
Haynes Boone LLP
/s/ Philip A. Lionberger
Philip A. Lionberger
Attorney for Petitioners
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Table of Contents
Page
Certificate of Interested Persons ..............................................................................i
Table of Authorities ............................................................................................... iv
Statement of Relief Sought ..................................................................................... 1
Introduction ............................................................................................................ 1
Issues Presented .....................................................................................................2
Statement of Facts ..................................................................................................2
Reasons Why the Writ Should Issue .......................................................................6
I. The District Court Clearly Abused Its Discretion by Referring
This Case to Special Masters. ....................................................................6
A. The Appointment Order Does Not Comply with FRCP 53. ................6
B. The Appointment Order Directs the Special Masters to
Apply the Wrong Constitutional Standard. ....................................... 11
II. Defendants Have No Adequate Remedy by Appeal. ................................ 14
III. Issuance of the Writ Is Appropriate in the Extraordinary
Circumstances Here. ...............................................................................20
Conclusion ............................................................................................................ 25
Certificate of Service............................................................................................. 26
Exhibits
1. Plaintiffs original Complaint
2. Order (June 2, 2011)
3. Plaintiffs Memorandum of Law in Support of Motion for Class Certification
4. Docket Sheet
5. Memorandum Opinion and Verdict (Dec. 17, 2015)
6. Stay Order (Mar. 21, 2016)
7. Transcript of Hearing Re: Special Master (Mar. 21, 2016)
8. Defendants Submission of Special Master Candidates
9. Opposed Motion to Revoke Reference to Special Masters, and in the
Alternative, Motion for Certification under [28] U.S.C. 1292(b) and Stay
of Enforcement Pending Appeal
10. Appointment Order (Mar. 21, 2016)
11. Order Re: Motion to Revoke (Mar. 29, 2016)
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12.
13.
14.
15.
16.
17.
18.
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21.
22.
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37.
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Transcript Excerpt
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TSG Report: Assessment Findings
TSG Report: Recommendations
Report to Sunset Advisory Commission
Transformation Weekly Update
CPS Transformation Work Plan
CPS Transformation Goals and Priorities
CPS Transformation Status Report
Transcript Excerpt
Transcript Excerpt
Transcript Excerpt
Transcript Excerpt
Letter to Judge Jack from Special Master Kevin Ryan
Special Master Team List
Table of Authorities
Page(s)
Cases
Arthur Murray, Inc. v. Oliver, 364 F.2d 28 (8th Cir. 1966) ..................................... 16
Cheney v. U.S. Dist. Ct., 542 U.S. 367 (2004) ........................................................ 21
City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 (2d Cir. 2011) ............ 10
Collins v. City of Harker Heights, 503 U.S. 115 (1992)............................................. 12
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Other Authorities
U.S. Dist. & Bankr. Ct., S. Dist. of Texas, History & Statistics,
http://www.txs.uscourts.gov/history-statistics
(last visited Mar. 31, 2016) .............................................................................. 10
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Introduction
The district court has abused its discretion, and violated Federal Rule of
Civil Procedure (FRCP) 53, by delegating to special masters its duties of
drawing constitutional lines and crafting appropriate injunctive relief. The
district court has unique knowledge of the facts and legal issues in this case,
which it has been presiding over for the past five years, and its Appointment
Order identifies no extraordinary circumstances that warrant reference to
special masters. Moreover, by forcing Defendants to subsidize the drafting of
the injunction that it will ultimately adopt, the district court is making
Defendants pay dearly for the privilege of appealing the findings and
conclusions underlying that injunction. In effect, the court has imposed a nonconsensual consent decree. Mandamus relief is accordingly warranted.
Petitioners dispute the correctness of the district courts findings and conclusions of
constitutional violations, and this original proceeding is being brought without prejudice to
their right to appeal those findings at an appropriate time.
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Issues Presented
1.
Statement of Facts
Plaintiffs in the underlying civil action are nine children (Named
Plaintiffs) in the custody of Texass Permanent Managing Conservatorship
(PMC), i.e., long-term foster care. Ex.1, at 1, 5-30. Acting through their
next friends, Ex.1, at 31-33, Named Plaintiffs filed a class-action lawsuit under
42 U.S.C. 1983 against Defendants in their official capacities, Ex.1, at 33-34,
seeking declaratory and injunctive relief to redress alleged class-wide injuries
caused by violations of the substantive component of the Fourteenth
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Amendments Due Process Clause, among other things, which allegedly stem
from systemic deficiencies in Defendants administration of the PMC. Ex.1,
at 79-83. The district court certified a class of [a]ll children who are now and
all those who will be in the [PMC] of the Texas Department of Family and
Protective Services [DFPS]. Ex.2, at 34. This Court granted Defendants
petition for permission to appeal, vacated the district courts classcertification order, and remanded for further proceedings. M.D. ex rel.
Stukenberg v. Perry (M.D. I), 675 F.3d 832, 849 (5th Cir. 2012).
On remand, Named Plaintiffs filed a second Motion for Class
Certification. Ex.3. After a hearing, the district court certified a general class
and two subclasses (Plaintiffs). M.D. ex rel. Stukenberg v. Perry (M.D. II),
294 F.R.D. 7, 67 (S.D. Tex. 2013).2 Defendants sought permission to appeal
the class-certification order, but the Court dismissed the petition as untimely.
M.D. ex rel. Stukenberg v. Perry (M.D. III), 547 F. Appx 543, 544 (5th Cir.
2013) (per curiam).
A bench trial was held over ten days in December 2014. Ex.4, at 58-59. In
December 2015, the district court issued its 255-page Memorandum Opinion
and Verdict (Opinion). Ex.5. In sum, the court found that DFPSs policies
and practices concerning the PMC violated Plaintiffs substantive due process
rights, entitling them to injunctive relief. Ex.5, at 242-45.
The district court initially certified three subclasses, but later decertified one of
them. Ex.5, at 156.
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Germane to the issues in this petition, the court also stated that,
[b]ecause of the complexity and breadth of reforms that are required to bring
DFPS in compliance with the Constitution, it would appoint a State-funded
special master to help craft the reforms and oversee their implementation.
Ex.5, at 245. After setting a schedule for selecting the special master, the
courts Opinion describes a process that tasks the special master with the
creation of an Implementation Plan, subject to court oversight and
approval. Ex. 5, at 246-48. The Opinion also lists numerous policy preferences
as goals to guide the Implementation Plan. Ex.5, at 248-54. Defendants
filed an interlocutory appeal and moved to stay the injunction, including the
masters appointment, and this Court denied the motion on March 21, 2016.
Ex.6, at 2.
That same day, over Defendants objections, Ex.7, at 8-9, 202-08; see also
Ex.8, at 2; Ex.9, the district court signed an order appointing two special
masters pursuant to [FRCP] 53 and the [c]ourts inherent powers. Ex.10,
at 1. The Appointment Order describes the special masters duties and
terms in 30 numbered paragraphs, Ex.10, at 1-8, and directs that [t]he role
of the Special Masters is to effectuate the Courts Memorandum Opinion and
Verdict of the Court by formulating, monitoring, and creating an
Implementation Plan in conjunction with the Court so as to administer the
Memorandum Opinion by bringing the State into compliance with
constitutional standards of care. Ex.10, at 1-2. The Appointment Order also
reiterates the courts earlier findings that: the post-judgment matters in this
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case cannot be addressed effectively and timely by the Court; [t]he issues
in this case are especially sophisticated, wide-ranging, and protracted,
involving complicated facts and administrative problems in crafting and
implementing the injunction, which will be difficult to evaluate, quantify, and
administer; [r]esolution of these issues will require highly specialized and
technical knowledge; and [a] Special Master who is an expert in a field
relevant to foster care systems is better suited to craft, monitor, and
implement the necessary reforms. Ex.10, at 1.
Petitioners must pay each special master $345 per hour plus reasonable
expenses. Ex.10, at 6. The special masters must submit an Implementation
Plan to reform Texass foster care system within 180 days of the
Appointment Order, after which time the court will hold a hearing regarding
the plan. Ex.10, at 2. The special masters are also to supervise DFPSs reforms
by submitting progress reports every 180 days after the hearing, Ex.10, at 4,
and will serve until the court deems their services no longer necessary,
Ex.10, at 8.
Defendants filed a Motion to Revoke the Reference to Special Masters or
for Certification and Stay in the Alternative. Ex.9. The district court denied
the motion and refused to certify the order for interlocutory appeal pursuant
to 28 U.S.C. 1292(b) or stay the proceedings. Ex.11.
This petition for writ of mandamus ensued.
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nor the expertise to craft an injunction.3 This case has been on Judge Jacks
docket since 2011, the year in which she assumed senior status. In the five
years since then, she has written dozens of orders spanning many pages,
including two class certification orders totaling 142 pages and a 255-page
opinion on the merits. She read every single thing thats been filed in the
case, including every single exhibit admitted at trial, Ex.12, at 14, 17-18.
That it took the court a full year to issue its Opinion shows that Judge Jack
spent considerable time and effort thinking about the constitutional issues
concerning the PMC and the form and substance of injunctive relief to rectify
the purported violations. Ex.5, at 155-254. Her familiarity with the
litigation means that much timeand millions of taxpayer dollars
would be saved by having the district court finish the job of crafting a complete
(and appealable) injunction. La Buy, 352 U.S. at 252.
Judge Jack already was personally familiar with Texass foster-care
system from her 13 years representing foster-care children as an attorney ad
litem. Ex.13, at 12, ll. 5-8. That experience, together with presiding over
several years of pre-trial proceedings in this case, allowed her to effectively
serve as a witness numerous times at trial. Ex.14. The notion that the author
of the 255-page Opinion awarding systemic reform of the foster-care system
To have certified an injunctive class, the district court must have determined that
there is an injunction that remedies the class injury. Fed. R. Civ. P. 23(b)(2). The
Opinion, however, is silent both on what injunctive relief complies with Rule 23(b)(2) and
on what injunctive relief is necessary to cure the constitutional violations the court has
found.
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relief are unquestionably within the province of the district court. In deferring
its remedial jurisdiction to special masters, the district court has
impermissibly bypassed the difficult questions of what the minimum
constitutional requirements are and how to comply with them. Such
sweeping delegations of power to the Special Master are improper. See City
of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 145 (2d Cir. 2011)
(vacating injunction that required defendants to adopt those practices that
in the opinion of the Special Master serve to prevent in whole or in part the
illegal sale of firearms).
For example, Plaintiffs primary complaint with respect to the general
class of all PMC children is that conservatorship caseworkers have excessive
caseloads. But the district court expressly declined to determine the point at
which caseloads become constitutionally excessive. Ex.5, at 164.4 Instead, it
delegated that crucial legal determination to the special masters. Ex.5, at 164,
251. Thus, this is a case in which the parties rights and duties will be
determined, not merely enforced, by the special master. United States v.
Microsoft Corp., 147 F.3d 935, 954 (D.C. Cir. 1998). By charging the special
masters with the core judicial function of drawing constitutional lines, the
district court has used them to displace the court in contravention of FRCP
53. La Buy, 352 U.S. at 256.
The district court likely declined to make that determination because Plaintiffs caseload expert testified only as to best practices for caseloads and could not support Plaintiffs preference for a constitutional threshold of 25 children per caseworker. Ex.21.
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special masters devise will be impermissibly overbroad. Their effortsat tremendous expense to Texas taxpayerswill be useless in crafting an appropriate remedy because they will be based on an improper legal standard.
For example, the district court declared that frequent placement moves
can represent a violation of class members Fourteenth Amendment rights in
and of themselves. M.D. II, 294 F.R.D. at 53 (emphasis added). But placement
moves are often necessary to address a childs changing service needs, as the
expert testimony established and the district court acknowledged. Ex.20, at
156, ll. 24-25 ([T]o keep a child in a placement when they need something
else is a negative.); Ex.21, at 156, ll. 16-17, 22-23. (observing that children
that have significant issues act out in very strange ways, and sometimes [a
placement is] just not going to fit). The purported right to remain in a
particular placement indefinitely does not comport with Hernandez and is not
the constitutional standard in this Circuit.
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that end, the court referred this case to special masters to craft, monitor, and
implement the necessary reforms. Ex.10, at 1.
Although the Appointment Order is neither a final judgment subject to an
ordinary appeal nor an appealable interlocutory order under 28 U.S.C.
1292(a), an aggrieved party may seek review of an order of reference by
permissive interlocutory appeal under 28 U.S.C. 1292(b), or by writ of
mandamus. See Clifford, 257 F.3d at 448 (holding that party is not required to
seek review of an order of reference by an interlocutory appeal under
1292(b) or a writ of mandamus but, rather, may seek review in an ordinary
appeal after final judgment); see also La Buy, 352 U.S. at 256 (holding that the
court of appeals was justified in finding the orders of reference were an abuse
of power under FRCP 53(b)). The district court denied Defendants motion
to certify the Appointment Order for a permissive interlocutory appeal under
28 U.S.C. 1292(b). Ex.11. The courts ruling has thus foreclosed the
interlocutory-appeal avenue and left mandamus as Defendants only option
for seeking immediate review.
This Court has determined that a writ of mandamus may issue to correct
a reference to a special master under FRCP 53(b) where there is no showing
that some exceptional condition requires it and the reference is so
palpably improper that the rules have been practically nullified. In re
Watkins, 271 F.2d 771, 773 (5th Cir. 1959) (quoting La Buy, 352 U.S. at 252
n.4, 256-58); accord Microsoft Corp., 147 F.3d at 956 (finding case devoid of
anything exceptional within the meaning of Rule 53(b) and granting
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responding
to
the
special
masters
wide-ranging
investigations.
Without an interlocutory appeal or a mandamus, Defendants will have to
wait to avail themselves of the remedy of appeal from the final judgment to
challenge the reference to the special masters. And because Defendants
cannot recoup any fees they pay the special masters, paying the special
masters to craft an appealable final judgment would be a steep price for the
opportunity to prove that the masters never should have been appointed. See
Watkins, 271 F.2d at 775 (The remedy of an appeal from the final judgment
would scarcely be adequate, and if successful in overturning an adverse
judgment flowing from the reference, would, at the price of a third trial,
demonstrate, as presently contended, that only one was permitted.). Once
the masters have done (and been paid for) their work, there is little to be gained
by appealing their appointment. Waiting for a successful ordinary appeal is
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Cheney v. U.S. Dist. Ct., 542 U.S. 367, 381 (2004)). Here, the improper
delegation of judicial tasks, together with concerns about the integrity of the
proceedings and federalism, justify issuance of the writ.
First, the writ will rectify the Appointment Orders improper delegation
of judicial tasks and provide needed guidance on an issue of great importance
beyond just this case. Rule 53(a) provides that non-jury cases shall be referred
to a special master only upon a showing that some exceptional condition
requires it. As shown above in part I, the Appointment Order is directed to
crafting an injunction that draws constitutional lines, a task that is
quintessentially judicial in nature. The Appointment Order therefore
effectively nullifies Rule 53 and denies Defendants the right to a full trial
before an Article III court. This Court has held that, under circumstances
where a delegation of judicial tasks is contrary to Rule 53, a writ of mandamus
is appropriate to effectively secure that right. See Watkins, 271 F.2d at 775.
Second, mandamus relief is also justified by the circumstances of this
case, which call into question the integrity of the proceedings. When a case is
solidly within the realm of an Article III courts duties of rendering an
effective injunction, it is inappropriate to refer that case based on the dubious
assumption that a special master will be a more effective and flexible
alternative to the court in crafting appropriate injunctive relief. Ex.5, at 245.
A special master whose experience and training lie in the area of social work is
not more familiar than a federal judge with the quintessential judicial task of
crafting injunctive relief to remedy alleged constitutional violations. Thus, it
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cannot be assumed that the special master will do a more effective job than a
judge would, particularly in light of the special masters unfamiliarity with and
lack of expertise on constitutional doctrine. And the notion that flexibility is
more desirable than close adherence to legal norms when constitutional rights
and duties are at issue is spurious. Assigning a special master the task of telling
the court what the Defendants constitutional obligations under the injunction
should be undermines the integrity of judicial decision-making.
Lastly, a writ of mandamus would be appropriate under these
circumstances because the case raises federalism concerns. This lawsuit
attempts to put Texass PMC under the indeterminately continuous control
of a federal judge, instead of the States elected representatives and executive
officers where it belongs. That Defendants are being forced to subsidize this
federal takeover without first having an opportunity to contest the findings
and conclusions underlying the putative injunctive relief only amplifies the
federalism concerns.
Besides the weighty concern of the district court abdicating its judicial
duty to craft the injunctive relief here, there is an equally weighty concern that
the work of the special masters will interfere with and perhaps annul the
extensive reform effort that has recently been undertaken at great expense to
Texas taxpayers. In 2014, DFPS engaged The Stephen Group (TSG), a
highly respected child-welfare consulting firm, to create a blueprint on
where to go in making improvements to the States foster-care system.
Ex.22; Ex.23; Ex.5, at 24. TSG was given unfettered access to [the] agency
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and a very open charge to review the agencys operations, Ex.23, and it
made an elaborate and voluminous operational review (917 pages in total) that
provided numerous recommendations for improvements, in many of the very
same areas of concern that the district court identified. Ex.22; Ex.24; Ex.25;
Ex.26; Ex.5, at 24. DFPS responded to TSGs review by initiating the
Transformation program, taking a phased approach to implementation of
TSGs recommendations. Ex.5, at 35; Exs.27, 28, 29, 30, 31.
Transformation should be given a chance to succeed, notwithstanding the
district courts skepticism of it. Ex.5, at 195-96. The court dismissed
Transformation because it saw no evidence that the reform, which was only
initiated a few weeks before trial, was working. Ex.5, at 196. The court further
stated that it would not place blind faith in DFPS in light of its failure to
reduce caseworker caseloads, and because the court found that
Transformation did not match up with Plaintiffs preferred solutions. Ex.5, at
196. This reasoning fails.
Defendants showed that Transformation builds upon but is different from
past reform efforts and has already started to improve the foster-care system,
Exs.32, 33, 34, 35, but the court simply chose to ignore that substantial
evidence. Nor should Transformation be disregarded simply because it does
not comport with Plaintiffs preferred policies. To the contrary, DFPS
professionals and government officials believe that TSGs recommendations
and Transformation is the best approach, and federal-court control may well
be antagonistic to the vast experience of the social-welfare professionals. Or
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Conclusion
The Court should grant mandamus relief and direct the district court to
vacate its Appointment Order and craft appropriate injunctive relief. In
addition, while a determination of this petition is pending, the Court should
stay any special-master proceedings arising from the Appointment Order.
Respectfully submitted.
Ken Paxton
Attorney General of Texas
Scott A. Keller
Solicitor General
Jeffrey C. Mateer
First Assistant Attorney General
JOSEPH D. HUGHES
Assistant Solicitor General
Philip A. Lionberger
/s/ Philip A. Lionberger
Assistant Solicitor General
Counsel for Petitioners
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Certificate of Service
On March 31, 2016, this petition was served via CM/ECF on all registered
counsel and transmitted to the Clerk of the Court. On the same date, a paper
copy of this petition was sent to the Honorable Janis Jack, Senior Judge,
United States Courthouse, 1133 N. Shoreline Blvd., Corpus Christi, Texas
78401, via Federal Express. Counsel further certifies that: (1) any required
privacy redactions have been made in compliance with Fifth Circuit Rule
25.2.13; (2) the electronic submission is an exact copy of the paper document
in compliance with Fifth Circuit Rule 25.2.1; and (3) the document has been
scanned with the most recent version of Symantec Endpoint Protection and is
free of viruses.
/s/ Philip A. Lionberger
Philip A. Lionberger
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