Foster Children Plaintiffs' Reply

Case: 16-40482
Document: 00513475829
Page: 1
Date Filed: 04/21/2016
No. 16-40482
In the
United States Court of Appeals
for the Fifth Circuit
IN RE GREG ABBOTT, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF
TEXAS, CHRIS TRAYLOR, IN HIS OFFICIAL CAPACITY AS EXECUTIVE COMMISSIONER
OF THE HEALTH AND HUMAN SERVICES COMMISSION OF THE STATE OF TEXAS; JOHN
J. SPECIA, JR., IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE DEPARTMENT OF
FAMILY AND PROTECTIVE SERVICES OF THE STATE OF TEXAS,
PETITIONERS
On Petition for Writ of Mandamus to the United States District Court
for the Southern District of Texas, No. 2:11-CV-00084,
The Hon. Janis Graham Jack, Presiding
RESPONSE TO PETITION FOR WRIT OF MANDAMUS
Sara Bartosz
CHILDRENS RIGHTS
330 Seventh Avenue, Fourth Floor
New York, New York 10001
Marcia Robinson Lowry
A BETTER CHILDHOOD, INC.
1095 Hardscrabble Road
Chappaqua, New York 10514
Reagan W. Simpson
R. Paul Yetter
Dori Kornfeld Goldman
Lonny Hoffman
Christian J. Ward
YETTER COLEMAN LLP
909 Fannin, Suite 3600
Houston, Texas 77010
Barry F. McNeil
David A. Dodds
HAYNES AND BOONE, LLP
2323 Victory Avenue, Suite 700
Dallas, Texas 75219
Attorneys for Respondents
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CERTIFICATE OF INTERESTED PERSONS

No. 16-40482
IN RE GREG ABBOTT, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF
TEXAS, CHRIS TRAYLOR, IN HIS OFFICIAL CAPACITY AS EXECUTIVE COMMISSIONER
OF THE HEALTH AND HUMAN SERVICES COMMISSION OF THE STATE OF TEXAS; JOHN
J. SPECIA, JR., IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE DEPARTMENT OF
FAMILY AND PROTECTIVE SERVICES OF THE STATE OF TEXAS,
PETITIONERS
The undersigned counsel of record certifies the following listed persons have
an interest in the outcome of this case. These representations are made in order that
the judges of this court may evaluate their possible recusal or disqualification:
1.
Respondents are represented in the Fifth Circuit by:

Plaintiffs
Plaintiffs Counsel
M.D., by next friend

Sarah R. Stukenberg;
Reagan W. Simpson
R. Paul Yetter
Lonny Hoffman
Christian J. Ward
YETTER COLEMAN LLP
D. I., by next friend

Nancy G. Pofahl;
Z. H., by next friend
Carla B. Morrison;
S. A., by next friend
Javier Solis;
A. M., by next friend
Jennifer Talley;
Barry F. McNeil
David A. Dodds
Dallas, Texas 75219
J. S., by next friend

Anna J. Ricker;
Sara Bartosz
Christina W. Remlin
CHILDRENS RIGHTS
330 Seventh Avenue
K. E., by next friend

John W. Cliff, Jr.;
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Plaintiffs
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Plaintiffs Counsel
D. P., by next friend

Karen J. Langsley;

T. C., by next friend

Paul Swacina
Additional counsel that represented Respondents in the district court are:

Plaintiffs
Plaintiffs Counsel
M.D., by next friend

Sarah R. Stukenberg;
Christina W. Remlin
Aaron Finch
Joshua Rosenthal
Adam Dembrow
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
D. I., by next friend

Nancy G. Pofahl;
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;
Christopher D. Porter
YETTER COLEMAN LLP
K. E., by next friend

John W. Cliff, Jr.;
Richard Thaddeus Behrens

HAYNES BOONE LLP
D. P., by next friend

Karen J. Langsley;
T. C., by next friend
Paul Swacina
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2.
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Petitioners are represented in the Fifth Circuit by:

Defendants
Defendants Counsel
Greg G. Abbott, in his official

capacity as Governor of the State
of Texas;
Ken Paxton
Charles E. Roy
Scott A. Keller
Joseph D. Hughes
Phillip A. Lionberger
Thomas A. Albright
OFFICE OF THE ATTORNEY
GENERAL
Chris Traylor, in his official

capacity as Executive
Commissioner of the Health and
Human Services Commission of
the State of Texas;
John J. Specia, Jr., in his official
capacity as Commissioner of the
Dept of Family and Protective
Services of the State of Texas
Additional counsel that represented Petitioners in the district court are:

Defendants
Defendants Counsel
Greg G. Abbott, in his official

capacity as Governor of the State
of Texas;
Angela V. Colmenero
Andrew B. Stephens
Marc Rietvelt
OFFICE OF THE ATTORNEY
GENERAL
Chris Traylor, in his official

capacity as Executive
Commissioner of the Health and
Human Services Commission of
the State of Texas;
John J. Specia, Jr., in his official
capacity as Commissioner of the
Dept of Family and Protective
Services of the State of Texas
/s/Reagan W. Simpson
Reagan W. Simpson
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TABLE OF CONTENTS
Certificate of Interested Persons ............................................................................... ii
Table of Authorities ................................................................................................ vii
Introduction ................................................................................................................1
Statement of Facts ......................................................................................................1
Argument....................................................................................................................6
I.
THE DISTRICT COURT COMMITTED NO ERROR, AND CERTAINLY

DID NOT CLEARLY ABUSE ITS DISCRETION, IN APPOINTING THE
SPECIAL MASTERS. .........................................................................................6
A.
B.
II.
Appointing Masters To Assist In Planning, Developing, And

Implementing Court-Ordered Reforms Is Proper Under Rule 53
And A Courts Inherent Judicial Authority. ..........................................6
1.
Case law reflects the longstanding practice of using

masters in situations similar to those in this case. ......................6
2.
This Court has approved appointment of masters to assist

in planning and implementing post-trial remedial orders. ........10
3.
Appointment of masters at the remedial stage is

particularly appropriate when remedies involve
polycentric problems not as easily or effectively
resolved through the traditional adjudicative process. .............12
4.
The special masters are to aid the court in evaluating and

implementing remedies, not to make liability decisions. .........15
The Order Does Not Direct The Special Masters To Apply

The Wrong (Or Any) Constitutional Standard. ...................................20
DEFENDANTS HAVE A FULLY ADEQUATE ALTERNATIVE REMEDY

ON APPEAL, AFTER FINAL JUDGMENT IS ENTERED BY THE
DISTRICT COURT. ..........................................................................................23
A.
The Masters Appointment Is Limited, Not Open-Ended. ..............24

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B.
Defendants Fragmented Process Argument Is A Red

Herring.................................................................................................24
C.
Having To Pay For Special Masters Does Not Demonstrate

Inadequacy Of Alternative Remedies. ................................................25
III. EVEN IF THE OTHER PREREQUISITES WERE SATISFIED, MANDAMUS

IS NOT APPROPRIATE UNDER THE CIRCUMSTANCES..................................27
Conclusion & Prayer ................................................................................................30
Certificate of Compliance ........................................................................................32
Certificate of Service ...............................................................................................33
Exhibits:
1. Plaintiffs Submission of Special Master Candidates
2. Appellants Opposed Motion to Stay Injunction Pending Appeal
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TABLE OF AUTHORITIES
Page(s)
Cases
Alberti v. Klevenhagen,
790 F.2d 1220 (5th Cir. 1986) ............................................................................ 23
Alexander S. v. Boyd,
113 F.3d 1373 (4th Cir. 1997) .............................................................................. 9
Amos v. Bd. of Sch. Dirs. of City of Milwaukee,
408 F.Supp. 765 (E.D. Wis. 1976) ..................................................................... 12
Bogard v. Wright,
159 F.3d 1060 (7th Cir. 1998) .............................................................................. 9
Brown v. Plata,
563 U.S. 493, 131 S. Ct. 1910 (2011).........................................................8, 9, 30
Camp v. Gregory,
67 F.3d 1286 (7th Cir. 1995) .............................................................................. 23
Connor B. ex rel. Vigurs v. Patrick,
272 F.R.D. 288 (D. Mass. 2011)......................................................................... 23
Costello v. Wainwright,
387 F.Supp. 324 (M.D. Fla. 1973), affd, 489 F.2d 1311 (5th Cir.
1974) ...............................................................................................................9, 11
D.G. ex rel. Strickland v. Yarbrough,
278 F.R.D. 635 (N.D. Okla. 2011) ..................................................................... 23
DeShaney v. Winnebago Dept of Soc. Servs.,
489 U.S. 189 (1989) ............................................................................................ 22
Doe v. Taylor Indep. Sch. Dist.,
975 F.2d 137 (5th Cir. 1992) rehg granted and opinion vacated on
other grounds, 987 F.2d 231 (5th Cir. 1993) and on rehg, 15 F.3d
443 (5th Cir. 1994) ............................................................................................. 22
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Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys,

675 F.3d 849 (5th Cir. 2012) ............................................................................. 22
Gary W. v. Louisiana,
601 F.2d 240 (5th Cir. 1979) ........................................................................10, 11
Griffith v. Johnston,
899 F.2d 1427 (5th Cir. 1990) ............................................................................ 22
Halderman v. Pennhurst State Sch. & Hosp.,
446 F.Supp. 1295 (E.D. Pa. 1977) ...................................................................... 11
Halderman v. Pennhurst State Sch. & Hosp.,
612 F.2d 84 (3d Cir. 1979) (en banc), revd on other grounds, 451
U.S. 1 (1981) .............................................................................................9, 10, 12
Hart v. Cmty. Sch. Bd. of Brooklyn, N.Y. Sch. Dist. No. 21,
383 F.Supp. 699 (E.D.N.Y. 1974) ................................................................13, 14
In re Holocaust Victim Assets Litig.,
424 F.3d 132 (2d Cir. 2005) ................................................................................. 9
In re Pearson,
990 F.2d 653 (1st Cir. 1993) ................................................................................. 9
In re Peterson,
253 U.S. 300 (1920) .......................................................................................... 6, 7
Johnson v. Collins,
58 F.Supp.2d 890 (N.D. Ill. 1999), vacated on other grounds, 5
Fed. Appx 479 (7th Cir. 2001) .......................................................................... 23
K.H. ex rel. Murphy v. Morgan,
914 F.2d 846 (7th Cir. 1990) .............................................................................. 23
Kenny A. Winn v. Perdue,
No. 1:02-cv-1686-MHS, 2004 WL 5503780 (N.D. Ga. Dec. 13,
2004) ................................................................................................................... 23
La Buy v. Howes Leather Co.,
352 U.S. 249 (1957) ........................................................................................6, 19
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Labor/Community Strategy Ctr. v. Los Angeles County Metro.

Transp., Auth.,
263 F.3d 1041 (9th Cir. 2001), cert. denied, 535 U.S. 951 (2002) ...................... 9
LaShawn A. v. Dixon,
762 F.Supp. 959 (1991) ...................................................................................... 23
LaShawn A. by Moore v. Kelly,
990 F.2d 1319 (D.C. Cir. 1993) .......................................................................... 23
Local 28 of Sheet Metal Workers Intl Assn v EEOC,
478 U.S. 421 (1986) .............................................................................................. 7
Montcalm Publg Corp. v. Commonwealth of Virginia,
199 F.3d 168 (4th Cir. 1999) ................................................................................ 9
Moore v. Leflore County Bd. of Election Commrs,
361 F.Supp. 609 (N.D. Miss. 1973), affd, 502 F.2d 621 (5th Cir.
1974) ................................................................................................................... 11
New York State Assn for Retarded Children Inc. v. Carey,
706 F.2d 956 (2d Cir. 1983) .........................................................................13, 14
Penn. Assn for Retarded Children v. Comm. of Pa.,
334 F.Supp. 1257 (E.D. Pa. 1971) ...................................................................... 12
Planned Parenthood of Greater Tex. Surg. Health Servs. v. Abbott,
734 F.3d 406 (5th Cir. 2013) ................................................................................ 4
R.G. v. Koller,
415 F.Supp.2d 1129 (D. Haw. 2006) .................................................................. 23
Reed v. Rhodes,
549 F.2d 1050 (6th Cir. 1976) ............................................................................ 25
Rufo v. Inmates of Suffolk County Jail,
502 U.S. 367 (1992) ............................................................................................ 16
Ruiz v. Estelle,
679 F.2d 1115 (5th Cir. 1982), amended in part, vacated in part,
688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042 (1983) ................7, 10
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Ruiz v. Lynaugh,
811 F.2d 856 (5th Cir. 1987) .............................................................................. 16
Sierra Club v. Clifford,
257 F.3d 444 (5th Cir. 2001) ..................................................................19, 20, 24
Thomas S. v. Flaherty,
902 F.2d 250 (4th Cir. 1990) ................................................................................ 9
United States v. State of Conn.,
931 F.Supp. 974 (D. Conn. 1996) ....................................................................... 16
United States v. Suquamish Indian Tribe,
901 F.2d 772 (9th Cir. 1990) ................................................................................ 9
Wyatt v. Aderholt,
503 F.2d 1305 (5th Cir. 1974) ............................................................................ 23
Youngberg v. Romeo,
457 U.S. 307 (1982) ............................................................................................ 23
Rules
FED. R. CIV. P. 53 ..............................................................................................passim
FED. R. CIV. P. 53(a)(1)(C) ................................................................................13, 15
Other Authorities
APPOINTING SPECIAL MASTERS & OTHER JUD. ADJUNCTS: A
HANDBOOK FOR JUDGES & LAWYERS 5 (2d. ed. 2009), available at
http://www.fjc.gov/public/pdf.nsf/lookup/ACAM2009.pdf/$file/A
CAM2009.pdf (last visited April 13, 2016) ......................................................... 8
Letter of J. Hughes, April 7, 2016, #00513456484 ................................................. 25
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INTRODUCTION
Issuance of the writ of mandamus is permissible only in the clearest and
most compelling of cases, and defendants have not come close to satisfying their
daunting burden to justify its issuance in this case. They have failed to show that
their right to issuance of the writ is clear and indisputable, and that they have no
other adequate means to obtain review of the district courts appointment order.
Even if they had satisfied these two first hurdles, defendants have not shown that
issuance of the writ would be appropriate under the circumstances.
STATEMENT OF FACTS
This case is brought on behalf of 12,000 children in the permanent managing
conservatorship (PMC) of Texas. Plaintiffs introduced extensive evidentiary proof
that defendants substantially depart from professional judgment and remain
deliberately indifferent to the needs of children entrusted to the States care, that
longstanding structural defects expose PMC children to harm and substantial risk
of harm, and that injunctive relief is needed to remedy the violation of foster
childrens constitutional rights. In an exhaustively detailed Opinion and Verdict
issued on December 17, 2015 (Opinion), the district court found that plaintiffs
successfully established liability as to most of their claims and that injunctive relief
is warranted. See Pet.Ex.5.
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The district court further announced its intention to craft an injunction, to be

issued as a final order, that will require defendants to establish and implement
policies and procedures to ensure that Texass PMC foster children are free from
an unreasonable risk of harm. Id. at 245, 248. Recognizing that it would be
impractical for the Court to craft and oversee each necessary change, the district
court announced that as a more effective and flexible alternative, the Court will
appoint an independent Special Master to help craft the reforms and oversee their
implementation. Id. a 245-46. The Special Master is to operate in close
coordination with this Court, which retains jurisdiction to issue orders as necessary
to remedy the constitutional violations described in this Opinion. Id. at 246.
The Opinion spells out detail-oriented, managerial tasks that the master is to
perform, beginning with the development of a recommended implementation plan,
to be presented to the court within 180 days. Id. In developing that plan, the master
would have access to all relevant information, records, personnel, and reports
and must provide all parties a full opportunity to consult and be involved with the
development. Id.
The court gave specific direction as to what the recommended plan shall
include, such as interim dates, final implementation dates, specific steps and
tasks necessary to achieve full implementation and to meet the interim and final
2
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implementation dates, and the like. Id. at 246-47. It laid out a comprehensive set
of goals that it had determined an implementation plan should achieve, including
some very specific objectives such as those dealing with a foster childs access to
speak privately with DFPS staffers or updating the photographs of children in their
case files. Id. at 248-54. The masters task would be to recommend specific,
workable solutions for achieving those goals. Id. at 246. The district court made
clear that the masters recommendations will be reviewed de novo as the court will
make final determinations regarding all aspects of its final injunctive order, and
only after hear[ing] the parties objections to the proposed Implementation Plan
will the court decide which, if any, provisions to accept. Id. at 247.
As its only specific injunctive order, the Opinion directed defendants to
immediately stop placing PMC foster children in unsafe placements, which
include foster group homes that lack 24-hour awake-night supervision. Id. at 245.
Nevertheless, defendants attempted an interlocutory appeal of all aspects of the
Opinion, including the special master appointment, and sought to stay all further
proceedings. Pet.Ex.6 at 2-4. In denying the stay, this Court rejected defendants
argument based on supposed irreparable harm resulting from being ordered to pay
for the special masters work, explaining that [f]inancial harm . . . is outweighed
by the harm to the class members and public interest if we stay the case. Id. at 5.
3
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As the Court concluded, the public interest supports allowing the special master to
proceed. Because the safety and rights of vulnerable children are at stake, and the
immediate injunctive relief ordered is concentrated on a single, narrow mandate,
the Planned Parenthood [of Greater Tex. Surg. Health Servs. v. Abbott, 734 F.3d
406 (5th Cir. 2013)] factors weigh in favor of denying a stay. Id.
The parties were unable to agree on special master candidates and submitted
competing proposals, which the district court considered at a hearing on March 21,
2016. The court selected two persons who, both individually and collectively,
bring tremendous experience to bear. One of the special masters, Kevin Ryan, has
unique qualifications for this role, having managed public agency reform both as
Commissioner of New Jerseys child welfare agency during implementation of a
federal consent decree and as a court-appointed monitor in other states
implementing child welfare reforms under federal court oversight. Ex.1 at 1-2,
Ex.A.
The other special master, Professor Francis McGovern, is equally
impressive, with extensive experience as a court-appointed special master in

countless ground-breaking cases, including many involving institutional reform. Id.
at 3, Ex.B.
Notably, at this hearing one of defendants proposed candidates, John
Stephen, testified about the states foster care system. He is founder and managing
4
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partner of The Stephen Group, a management consulting team, and has led projects
in several states, including Texas, where he remains actively involved with
assessing the states foster care system. Pet.Ex.8 at Ex.A. DFPS has paid his group
over $2.1 million in connection with its work in Texas. Pet.Ex.7 at 18-19. His
testimony is instructive, including the following:
Upon reading the Opinion, he felt a sense of agreement with what the Court
had found based on the evidence she had in this trial. . . . Because there is lots
of issues that need to be fixed today in our States foster care system,
especially for PMC children. Id. at 69-70.
He agreed that [c]hildren are hurt every day by systemic problems, and
[t]hats why you need an urgency to fix things, explaining that a child welfare
agency handling any child should make sure you ensure their safety,
permanency, and wellbeing. Id. at 84-85.
If he were the only person voting, he would say lets start fixing all of these
real life systemic [] issues today. Id. at 85.
The district court denied defendants motion to revoke the appointment or,
in the alternative, stay the proceedings. Pet.Ex.11. Defendants have petitioned this
Court for a writ and requested a stay to halt the remedial process in its tracks.
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ARGUMENT
I.
THE DISTRICT COURT COMMITTED NO ERROR, AND CERTAINLY DID NOT

CLEARLY ABUSE ITS DISCRETION, IN APPOINTING THE SPECIAL MASTERS.
A.
Appointing Masters To Assist In Planning, Developing, And

Implementing Court-Ordered Reforms Is Proper Under Rule 53
And A Courts Inherent Judicial Authority.
In appointing the special masters, the district court exercised a traditional

and commonly-exercised authority under Federal Rule of Civil Procedure 53 and
pursuant to its inherent judicial authority. In particular, masters have been
appointed post-trial to plan, recommend, organize, and supervise implementation
of court orders, especially remedial orders requiring institutional reform to achieve
constitutional compliance. The district courts appointment order falls squarely
within Rule 53 and the well-established case law authority.
1.
Case law reflects the longstanding practice of using masters

in situations similar to those in this case.
More than half a century ago, the Supreme Court addressed the judicial
authority to make reference to special masters. La Buy v. Howes Leather Co., 352
U.S. 249 (1957), in which the Court was interpreting the original version of Rule
53, acknowledged a district judges authority to appoint a master, describing the
masters proper function as to aid judges in the performance of specific judicial
duties, as they may arise in the progress of a cause, quoting an even older
decision. Id. at 256 (quoting In re Peterson, 253 U.S. 300, 312 (1920)).
6
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Over time, the Court broadened its approval of when a master properly may
be appointed. See Local 28 of Sheet Metal Workers Intl Assn v EEOC, 478 U.S.
421 (1986) (approving appointment of a judicial adjunct with broad responsibility
for supervising compliance with the district courts remedial orders). In later years,
the case law in the lower courts spelled out more clearly the many roles to which
masters could be assigned under Rule 53. Courts also recognized that district
courts possess inherent authority to appoint masters.1
In 2003, several important amendments to Rule 53 were promulgated, and
the scope of the district courts authority to appoint special masters was expanded.
See Rule 53, Advisory Committee Notes (2003). 2 While special masters are
regularly appointed for both pretrial and trial matters under the 2003 version of
Rule 53, perhaps the primary justification for appointing masters, and the ground
See Ruiz v. Estelle, 679 F.2d 1115, 1161 n. 240 (5th Cir. 1982), amended in part, vacated in
part, 688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042 (1983) ([R]ule 53 does not
terminate or modify the district courts inherent equitable power to appoint a person, whatever be
his title, to assist it in administering a remedy.); In re Peterson, 253 U.S. 300, 312 (1920)
(courts have inherent power to provide themselves with appropriate instruments required for the
performance of their duties. This power includes authority to appoint persons unconnected with
the court to aid judges in the performance of specific judicial duties, as they may arise in the
progress of a cause.) (citation omitted).
2
In other ways, the amendments tightened Rule 53, such as by eliminating the appointment of
trial masters in jury trials, except with consent of the parties. Also new were requirements that
the order of reference address compensation, conflicts of interest, and ex parte communications.
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on which masters have been most commonly approved, is at the post-trial stage.3 In
particular, appointment of masters is routinely recognized as appropriate at the
post-trial stage to plan, organize, direct, and supervise implementation of a court
order, especially a remedial order to reform a state institution. A good example is
Brown v. Plata, 563 U.S. 493, 131 S. Ct. 1910 (2011), where the Court, in
upholding the district courts order requiring California to reduce its prison
population to remedy constitutional violations from overcrowding, described the
district courts appointment of a remedial special master. The district court had
given the master responsibility to oversee development and implementation of a
remedial plan. Id. at 1926 (citation omitted). In fact, the special master (along
with a receiver that had been appointed in a related case) had recommended that, in
addition to ordering a reduction in the prison population, the district court should
order staff training, facilities improvement, and procedural reforms. Id. The district
court later appointed a receiver to oversee the defendants compliance with the
courts order. Id. at 1929.4
3
See APPOINTING SPECIAL MASTERS & OTHER JUD. ADJUNCTS: A HANDBOOK FOR JUDGES &
LAWYERS 5 (2d. ed. 2009), available at http://www.fjc.gov/public/pdf.nsf/lookup/ACAM2009.
pdf/$file/ACAM2009.pdf (last visited April 13, 2016) (In civil cases, masters are often
appointed to monitor compliance with structural injunctions, especially those involving
employment or other organizational change, those involving facilities assisting the disabled, or
those requiring reform in government agencies.).
4
While the decision in Brown did not address the propriety of the masters appointment by
the district court (the state was not challenging the appointment in its appeal), the Court noted its
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Many other cases have approved appointment of a remedial masterfar too

many to catalogue all of them here; but even citation to a few suffices to
demonstrate that the district courts appointment order is a paradigmatic example
of the kind of appointment routinely made in institutional reform cases.5
approval of the appointment and of the masters work. See, e.g., id. at 1930 (noting that the
previous order requirement of the Prison Litigation Reform Act was satisfied by appointment
of a Special Master in the Coleman litigation); id. at 1939 (noting that the masters and
receivers reports are persuasive evidence that, absent a reduction in overcrowding, any remedy
might prove unattainable and would at the very least require vast expenditures of resources by
the State); id. at 1940 (finding that the master and receiver have filed numerous reports
detailing systemwide deficiencies in medical and mental health care and affirming district
courts remedial orders to address the deficiencies found to exist).
5
See, e.g., Costello v. Wainwright, 387 F.Supp. 324 (M.D. Fla. 1973), affd, 489 F.2d 1311 (5th
Cir. 1974) (remedial master appointed in prison reform case to aid the Court in evaluating the
quality of medical services and general health care available to the class plaintiffs, inmates
committed to the custody of the Florida Division of Corrections and in evaluating what if any,
improvements should be made); In re Holocaust Victim Assets Litig., 424 F.3d 132 (2d Cir.
2005) (in case in which master appointed to propose a plan of allocation and distribution of
settlement funds from Holocaust reparations case, appellate court affirmed district courts order
adopting masters recommendations); Labor/Community Strategy Ctr. v. Los Angeles County
Metro. Transp., Auth., 263 F.3d 1041 (9th Cir. 2001), cert. denied, 535 U.S. 951 (2002)
(masters appointment upheld to resolve disputes, including deciding on competing remedial
proposals from the parties in a civil rights lawsuit between a group of bus passengers and the Los
Angeles County Metropolitan Transportation Authority); Bogard v. Wright, 159 F.3d 1060, 1062
(7th Cir. 1998) (in case involving treatment at state mental hospitals, where decree called for
extensive injunctive relief, finding, inter alia, no basis to issue mandamus in case in which
master charged with monitoring and assisting with the progress of the defendants in complying
with the decree); Alexander S. v. Boyd, 113 F.3d 1373, 1378 (4th Cir. 1997) (master to
oversee states implementation of court-ordered improvements in conditions at juvenile
detention facilities), abrogation on other grounds recognized by Montcalm Publg Corp. v.
Commonwealth of Virginia, 199 F.3d 168, 172 (4th Cir. 1999); In re Pearson, 990 F.2d 653 (1st
Cir. 1993) (upholding masters appointment to assist district court in implementing and
overseeing injunctive relief ordered in case against a state institution, the Massachusetts
Treatment Center for Sexually Dangerous Persons); Thomas S. v. Flaherty, 902 F.2d 250, 255-56
(4th Cir. 1990) (master to oversee decree requiring reforms at state psychiatric hospital); United
States v. Suquamish Indian Tribe, 901 F.2d 772 (9th Cir. 1990) (upholding masters appointment
to assist district court in resolving dispute over nature and extent of treaty Indian fishing rights);
Halderman v. Pennhurst State Sch. & Hosp., 612 F.2d 84, 111 (3d Cir. 1979) (en banc), revd on
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This Court has approved appointment of masters to assist

in planning and implementing post-trial remedial orders.
This Court has approved the use of special masters to assist with planning
and organizing implementation of a courts remedial order in a case involving
reform of a state institution. See Ruiz v. Estelle, 679 F.2d 1115, 1161 (The power
of a federal court to appoint an agent to supervise the implementation of its decrees
has long been established.). Ruiz recognized that the size of a government
institution subject to a remedial decree as a factor justifying appointment of a
special master to assist in planning and organizing the remedial order. Id. at 116061 n.238 (noting that the sheer size of the Texas prison system could be found to
pose special difficulties in implementing a remedial decree).
Even before Ruiz, this Court had recognized a district judges authority to
appoint a special master in a remedial role in an institutional reform case. In Gary
W. v. Louisiana, 601 F.2d 240 (5th Cir. 1979), a master was appointed to supervise
multi-year implementation of a court order affecting care of special needs children,
including those in foster care. The special masters functions . . . [were] clearly
spelled out. He [was] to make reports and recommendations to the District Court.
other grounds, 451 U.S. 1 (1981) (approving district courts appointment of master to plan,
organize, direct, supervise and monitor the implementation of the Courts remedial order
pertaining to a state institution for the mentally retarded).
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Each party then has the right to object to these recommendations and be accorded
hearings on objections. Id. at 245. This is, of course, the process used here.6
Approving that appointment, this Court noted that the decision to refer the
case to a master is not extraordinary and that a masters appointment has been
approved in many cases involving similar facts or problems. Id. at 240, 244-45.
(citing cases). For example, the Court pointed to Costello v. Wainwright, 387
F.Supp. 324 (M.D. Fla. 1973), affd 489 F.2d 1311 (5th Cir. 1974), where the
district court had observed that the purpose of appointing a master was
to aid the Court in evaluating the quality of medical services and
general health care available to the class plaintiffs, inmates committed
to the custody of the Florida Division of Corrections and in evaluating
what if any, improvements should be made. Because this area of study
is highly technical and involves medical knowledge beyond the
expertise of the Court, the assistance of an expert special master who
possesses the requisite medical capabilities is necessary.
387 F.Supp. at 325; see also Moore v. Leflore County Bd. of Election Commrs,
361 F.Supp. 609 (N.D. Miss. 1973), affd, 502 F.2d 621 (5th Cir. 1974) (noting
special master appointed to formulate an acceptable redistricting plan).
Similarly, in Halderman v. Pennhurst State Sch. & Hosp., 446 F.Supp. 1295 (E.D.
Pa. 1977), also cited in Gary W., the district court appointed a master to plan,
organize, direct, supervise and monitor the implementation of a remedial order
6
Indeed, the special master appointment in Gary W. delegated functions like fact finding and
conducting hearings, 601 F.2d at 245, which the appointment here does not.
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pertaining to a state institution for the mentally retarded. Halderman v. Pennhurst

State Sch. & Hosp., 612 F.2d 84, 111 (3d Cir. 1979) (en banc), revd on other
grounds, 451 U.S. 1 (1981) (upholding district courts order and noting [w]ere we
to preclude the trial court from resorting to a master, we would help make selffulfilling the frequently made prophecy that courts are institutionally incapable of
remedying wholesale violations of legally protected rights); see also Amos v. Bd.
of Sch. Dirs. of City of Milwaukee, 408 F.Supp. 765 (E.D. Wis. 1976) (district
court ordered that school system be integrated and master be appointed to make
recommendations to the court with respect to the question of an appropriate
remedy); Penn. Assn for Retarded Children v. Comm. of Pa., 334 F.Supp. 1257,
1268-69 (E.D. Pa. 1971) (noting that Special Master shall be appointed to oversee
the identification by defendants of all mentally retarded children who have been
denied an education and the formulation and implementation by defendants of a
plan to provide a free, public program of education and training to all mentally
retarded children as soon as possible).
3.
Appointment of masters at the remedial stage is

particularly
appropriate
when
remedies
involve
polycentric problems not as easily or effectively resolved
through the traditional adjudicative process.
Courts have found it to be especially appropriate to appoint a special master

at the remedial stage when the remedy involves, as one court once put it, a
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polycentric problem that cannot easily be resolved through a traditional courtroombound adjudicative process. Hart v. Cmty. Sch. Bd. of Brooklyn, N.Y. Sch. Dist.
No. 21, 383 F.Supp. 699, 767 (E.D.N.Y. 1974). Post-2003, this justification for
engaging special masters draws direct support from the amended rule, which
specifically recognizes that a court may appoint a master to address pretrial and
posttrial matters that cannot be effectively and timely addressed by the court.
FED. R. CIV. P. 53(a)(1)(C).
In Hart, the first federal class action school desegregation case in New York,
the constitutional difficulties the court faced required consideration of a multitude
of choices affecting allocation of educational, housing and other resources. 383
F.Supp. at 766. Consequently, it concluded that it could only make informed
choices if it appointed a master to assist in developing a plan to remedy the
segregation. Id. at 762. In particular, a skilled master, with expertise in
government housing laws and in educational administration was needed to engage
in informal consultations and to weigh complex alternatives using a managerial
decision-making process. Id. at 766-67. The role, the court concluded, is crucial
if a just and workable remedy is to be devised. Id. at 767. In New York State Assn
for Retarded Children Inc. v. Carey, 706 F.2d 956 (2d Cir. 1983), the Second
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Circuit approved Hart and relied on Gary W. Id. at 962-63 (affirming appointment
of special master for reform of state institutions for the mentally retarded)
In this case, the district court similarly faces a polycentric problem and will
confront a multitude of choices in how to develop, implement, and administer its
remedial orders. And, just as in Hart, making the right choices will require a deep
dive into the details of the states foster care system, work which will require
extensive conversations with DFPS personnel and in-depth inquiries into
departmental practices. The district court realized that this work was necessary
before tailored remedial orders could be entered, but that it was not as well situated
to undertake these tasks and that it could not order remedial relief as effectively
and as timely without the aid of the special masters.
Moreover, just as Hart appointed a master with special expertise, here the
district court appointed two individuals with extensive background experience for
the role they have been asked to play. Mr. Ryans experience with child welfare
reform is unparalleled, from having served as New Jerseys Commissioner for
child welfare during implementation of a federal consent decree, and from having
worked as a court-appointed monitor in several other states implementing child
welfare reforms under federal court oversight. Professor McGovern is one of the
countrys foremost special masters, having been appointed to the role in countless
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cases nationwide, including numerous institutional reform cases. Together, these

two leading experts bring relevant experience and impressive credentials to their
assignment; their appointment will aid the court to effectively and timely develop
and implement remedial orders in this case. FED. R. CIV. P. 53(a)(1)(C).
4.
The special masters are to aid the court in evaluating and

implementing remedies, not to make liability decisions.
Beyond their general indictment of the district courts decision to appoint

masters, defendants also specifically object that the court delegated to the special
masters the duty to make liability determinations. The objection is without merit.
The primary focus of this objection is the recommendations the masters are
to make pertaining to caseloads and the General Class. The Opinion assigns the
special masters managerial and detail-oriented tasks to complete and on which to
rely in making recommendations with regard to caseloads, which the district court
plans to review and consider in crafting remedial relief. For example, the court
ordered that DFPS must track caseworker caseloads on a child-only basis. Pet.Ex.5
at 250. The court found that defendants do not count child-only caseloads, a failure
so fundamental it makes Texas unique among U.S. child welfare systems. Pet.Ex.5
at 162 (DFPSs way of counting caseloads is unique to Texas. Defendants and
Plaintiffs experts could barely understand the stage-counting approach, let alone
explain it to the Court.). As an example of the detail-oriented tasks given to the
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masters, the court has directed them to consider and make recommendations
regarding many specifics relevant to implementing the tracking order, such as
whether full-time caseworkers should be categorized separately from part-time
caseworkers, and whether tracking should be done by region or on a county-bycounty basis. Id. at 250.
At this granular level, the tasks assigned to the special masters will require
expertise and hands-on evaluation, including formal and informal communications
with DFPS personnel and in-depth inquiries into department practices. This kind of
detailed fact-gathering and investigatory practice does not fit neatly into the
traditional courtroom-bound adjudicative process. Indeed, consider the alternative:
if the court had decided to do all of this work itself, the likely outcome would have
been more evidentiary hearings, which, in turn, would further attenuate the
proceedings, delaying even longer entry of a final judgment. Given the findings
regarding the serious and immediate risks that these children face, the district
courts decision to appoint special masters so that it could more effectively and
promptly decide upon and enter remedial relief deserves considerable deference.7
7
Ruiz v. Lynaugh, 811 F.2d 856, 861 (5th Cir. 1987) (discussing deference due district court in
institutional reform cases because it is intimately involved in the often complex process of institutional
reformation and has the personal knowledge, experience, and insight necessary to evaluate the parties
intentions, performances, and capabilities); United States v. State of Conn., 931 F.Supp. 974, 984 (D.
Conn. 1996) (An appellate court will not disturb a district courts decision to appoint a special master,
unless a clear abuse of judicial power is shown.); see also Rufo v. Inmates of Suffolk County Jail, 502
U.S. 367, 393-94 (1992) (OConnor, J., concurring) (deference owed to district court is greater when
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Nor are defendants right to suggest that the district court has improperly
delegated judicial responsibility to the special masters with regard to caseloads.
The court has already concluded that existing caseloads violate PMC childrens
substantive due process rights. Pet.Ex.5 at 186. It cited numerous grounds to
support its conclusion that excessive caseloads mean all children in the General
Class face an unreasonable risk of harm. These findings including the following:
National professional child welfare accreditation standards recommend
maximum caseloads of up to 15 children, id. at 25-26, 163-64, 199, and
Plaintiffs expert Dr. Viola Miller, who has been the top official or a consultant
for child welfare agencies in several states, testified that any load above 20 is
dangerous. Id. at 44-45, 162-64, 199.
Even with the incomplete data that defendants maintain on caseloads, the court
was able to find that DFPSs caseloads far outpace professional standards.
Id. at 199. More than half of all PMC children (53%) have caseworkers with
caseloads of over 20 children. PX2159 at 1; see also Pet.Ex.5 at 164, 193.
The court found that the actual ratio of children-to-caseworkers is almost
certainly even worse than these previous figures indicate. Critically, DFPS
caseload numbers cannot be trusted, as they include fictive workers who are
not actually even people and secondary workers that never interact with
children. Pet.Ex.5 at 54-55, 162, 164-65, 171-76.
The court cited extensive evidence of how overburdened caseworkers are,
independent of the data on the ratio of caseworkers-to-children. Id. at 164-68.
This evidence included that Texas caseworkers spend just 26% of their time
with children, a finding that even the DFPS Commissioner calls disturbing.
Id. at 167. Even defendants own expert testified that this 26% figure is clear
court has been involved with litigation concerning large, public institutional reform over a number of
years, noting that [d]etermining what is equitable is necessarily a task that entails substantial discretion,
particularly in a case like this one, where the District Court must make complex decisions requiring the
sensitive balancing of a host of factors).
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evidence that the agency is doing more compliance than care, which is a
barrier that is qualitatively reducing the CPS caseworkers ability to keep
children safe. Id. at 167.
The court found that, whatever the exact ratio of children-to-caseworkers,
[u]nmanageable caseloads are the main reason that CVS caseworkers leave,
citing a survey in which 70% of caseworkers listed Workload as the first or
second reason why they resigned. Id. At 177.
Relatedly, the court found that the annual turnover rate for caseworkers was
26.7%. Defense witnesses admitted that high caseloads lead to high worker
turnover, further exacerbating high caseloads. Id. at 176. This high turnover
rate means that one out of every 11 CVS caseworker positions is vacant, id. at
177; DX 119 at 19, and even when vacancies are filled, it takes two years for
a caseworker to fully be up to speed. Pet.Ex.5 at 177.
Defense witnesses admitted that this high turnover rate causes delayed
investigations, a lack of continuity in providing services to families and
children, a lack of consistent timely visits by caseworkers to children in state
custody, and many additional financial costs that Texas must bear because it has
to recruit and train many more workers. Accordingly, the court found that in
this fluid systemin which children are being shuttled constantly from one
caseworker to anotherall children in the General Class are subject to an
unreasonable risk of harm. Id. at 178. With such high turnover, the district
court found that children who exited care in 2008 and spent at least three years
in the permanent managing conservatorship of the State had an average of 6.39
caseworkers. Id. at 179, 191-92.
To top it off, DFPS has ignored decades of reports that universally cite the
danger of overburdened caseworkers. Pet.Ex.5 at 186-89, 196; see also id. at
32-34.
The district court did not ask the masters to revisit any liability finding, and
their ultimate recommendations will not alter the determination that existing
caseloads are excessive.
Instead, their only responsibility is to recommend
effective ways to address the pervasive problems that the court has identified.
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In addition to their assignments for the General Class, the masters have been
given specific assignments as to the subclasses, such as offering recommendations
for improving the quality of investigations of licensing violations, as well as of
abuse allegations while children are in the states care. Once again, the work
delegated to the special masters is detail-driven, managerial work: How to address
the agencys documented unwillingness to institute corrective actions against child
care facilities found to have been in violation of DFPS rules? Id. at 251. How to
track child-on-child abuse in a way that makes the information easy to retrieve and
accessible? Id. at 252. How DFPSs internal auditing unit can better ensure that
investigations are being conducted appropriately when deficiencies have been
identified? Id. at 250. Far from any delegation of a core judicial function, these
inquiries look into the details that the district court realizes must be accounted for
in coming up with a remedial order to address defendants constitutional
violations.
The appointment order in this case stands in stark contrast to cases like La
Buy and Sierra Club. In La Buy, the district court referred antitrust cases to a
master before liability was determined, citing as its justification for referral that the
cases were complex and would take too much time to try. 352 U.S. at 252-54. In
Sierra Club v. Clifford, this Court similarly rejected the justifications for
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appointing a special master, which included the length of time the case had been
pending and the voluminous filings of technical documents that concerned
compliance with governmental regulations. 257 F.3d 444, 446 (5th Cir. 2001).
Also like La Buy, the special master in Sierra Club was charged with deciding
basic liability issues (and those decisions had to be accepted by the district judge
unless they were clearly erroneous). Id. at 448.
In contrast, this matter has gone to trial, and the district court has rendered
its lengthy decision on the merits. The courts reference to special masters is to aid
it in the evaluation, determination, and implementation of particular remedies, not
to make factual liability determinations, a critical distinction that Sierra Club
specifically flagged. See id. (noting that most of the cases cited by appellees in
Sierra Club in support of the reference to the special master concerned the
evaluation and implementation of particular remedies, not the determination of
basic liability issues and that it may be plausible to refer matters concerning
remedies once liability is determined, but whether such references are valid will
always turn on their compliance with Rule 53(b)).
B.
The Order Does Not Direct The Special Masters To Apply The
Wrong (Or Any) Constitutional Standard.
Defendants assertion that the district court direct[ed] the special masters to
apply an incorrect constitutional standard, Pet. at 11, is unavailing on multiple
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levels. To begin with, as noted above, the court did not task the masters with
applying any legal standard at all, but only to develop recommendations for
implementing the goals outlined in the Opinion, which the court will review before
ordering remedial relief. The court thus properly reserved to itself the core judicial
function of applying the constitutional standard it has articulated to remedies
recommended by the special masters.
Defendants mischaracterization of the masters role is another attempt to
obtain premature appellate review of the merits of the district courts interlocutory
liability determination. Because the mandamus petition concerns only the order
appointing the special masters, which does not direct the masters to make any legal
determinations, issues regarding the legal standard that the district court is in the
midst of applying are irrelevant to the mandamus proceeding. Only after the
district court applies the constitutional standard in reviewing and deciding whether
to adopt any of the masters recommendations, and enters its final order, will these
issues be ripe for appellate review. Defendants may take an appeal then, and it will
be the province of the appeal Panel to review de novo whether the district court
applied the correct constitutional standard and to determine whether the liability
and remedy determinations satisfy the standard that Panel finds should be applied.
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In any event, plaintiffs have discussed the relevant authorities on the

applicable constitutional standard in much greater depth in prior filings in the
district court, but for now it may suffice to note that defendants cannot show that
the district court erred in articulating the constitutional standard, much less to the
extreme degree necessary to justify the extraordinary remedy of mandamus. This
Court has recognized foster children in the States custody as one of the strictly
enumerated situations in which the State assumes a duty of care sufficient to
create a special relationship. Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex
rel. Keys, 675 F.3d 849, 856, 859 (5th Cir. 2012); accord Griffith v. Johnston, 899
F.2d 1427, 1439 (5th Cir. 1990); see also Doe v. Taylor Indep. Sch. Dist., 975 F.2d
137, 146 (5th Cir. 1992), rehg granted and opinion vacated on other grounds, 987
F.2d 231 (5th Cir. 1993), and on rehg, 15 F.3d 443 (5th Cir. 1994). Long ago, the
Supreme Court explained that when a child is taken into state custody, the situation
might be sufficiently analogous to incarceration or institutionalization to give rise
to an affirmative duty to protect. DeShaney v. Winnebago Dept of Soc. Servs.,
489 U.S. 189, 201 n.9 (1989). Yet defendants urge a constitutional standard under
which foster children would enjoy less protection from harm than numerous
courtsincluding the Supreme Court and this Courthave recognized must be
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accorded to mentally ill or disabled adults and convicted felons.8 In line with such
precedent, courts have found specifically in the foster care context that childrens
substantive due process rights were violated by conditions similar to those the
district court confronted here.9
II.
DEFENDANTS HAVE A FULLY ADEQUATE ALTERNATIVE REMEDY ON

APPEAL, AFTER FINAL JUDGMENT IS ENTERED BY THE DISTRICT COURT.
Mandamus is also not warranted because defendants have a fully adequate
alternative remedy to an extraordinary writ that is neither illusory nor ineffectual.

Nor are defendants at risk of harm that outweighs the constitutional interests at
stake.
Defendants assertions about the anticipated administrative costs are
speculative and overstated. And they ignore both that the district court has thus far
approved only a limited number of personnel working for a limited period of time
See, e.g., Youngberg v. Romeo, 457 U.S. 307, 315-17 (1982) (If it is cruel and unusual
punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to
confine the involuntarily committedwho may not be punished at allin unsafe conditions.);
Alberti v. Klevenhagen, 790 F.2d 1220, 1226 (5th Cir. 1986) (The pattern of violence in the
Harris County jails, coupled with such inadequate supervision, creates a constant threat to the
inmates safety.); Wyatt v. Aderholt, 503 F.2d 1305, 1308-10 (5th Cir. 1974) (affirming district
court ruling that state mental institutions failure to employ qualified staff in numbers
sufficient to administer adequate treatment violated the due process rights of class members).
E.g., D.G. ex rel. Strickland v. Yarbrough, 278 F.R.D. 635, 638 (N.D. Okla. 2011); Connor B.
ex rel. Vigurs v. Patrick, 272 F.R.D. 288, 295 (D. Mass. 2011); Camp v. Gregory, 67 F.3d 1286,
1294-95 (7th Cir. 1995); K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990); R.G.
v. Koller, 415 F.Supp.2d 1129, 1156 (D. Haw. 2006); Kenny A. v. Perdue, No. 1:02-cv-1686MHS, 2004 WL 5503780, at *4 (N.D. Ga. Dec. 13, 2004); Johnson v. Collins, 58 F.Supp.2d 890,
904 (N.D. Ill. 1999), vacated on other grounds, 5 Fed. Appx 479 (7th Cir. 2001); LaShawn A. v.
Dixon, 762 F.Supp. 959, 996 (1991), affd and remanded on other grounds sub nom., LaShawn
A. by Moore v. Kelly, 990 F.2d 1319 (D.C. Cir. 1993).
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and that this Court has already declared that such costs are outweighed by the harm
to the class of foster children from halting the reform process.
A.
The Masters Appointment Is Limited, Not Open-Ended.
One of the first assertions defendants make is that they have no adequate
remedy by appeal because the district courts reference to the special masters is
open-ended. Pet. at 17. This simply is not correct. While the courts order
contemplates that the masters will continue beyond the implementation phase, the
March 21, 2016 appointment order directed that they begin work promptly on
April 1 and complete their investigation and issue recommendations in six months.
Moreover, nothing about this order precludes review of the final order the district
court will enter after taking the masters recommendations into account. See
Sierra Club, 257 F.3d at 448 ([S]uch order, as in this action, may be reviewed on
appeal.). In short, the appointment that is at issue in the current mandamus
proceeding has an inherent time limit. The implementation phase of the masters
appointment will commence only after the district court has entered a final order,
which defendants will be entitled to challenge on appeal in the ordinary course.
B.
Defendants Fragmented Process Argument Is A Red Herring.
Defendants assert that they have no other remedy because they are being
subjected to a fragmented judicial process. Pet. at 16. Whatever the merits of
their complaint, it is a red herring as it has nothing to do specifically with the
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courts appointment of the masters. After all, if the court elected to undertake the
tasks it assigned to the masters, as defendants say it should have, the fragmented
process about which they complain would be exactly the same.
C.
Having To Pay For Special Masters Does Not Demonstrate

Inadequacy Of Alternative Remedies.
Finally, defendants say that they have no alternative adequate remedy

because the financial burden of the special masters is great and cannot be recouped
later if they win on appeal, repeating the arguments they made in their stay motion.
Once again, they are wrong to argue that the appointment order should be nullified
because it requires that they bear the costs. Indeed, this Courts prior rejection of
their identical argument in the context of deciding whether the stay the 24-hour
supervision order of group homes seems dispositive of the question:
Financial harm, though, is outweighed by the harm to the class
members and public interest if we stay the case. A stay would allow
the State to continue to make apparently dangerous placements in
foster group homes that lack 24-hour supervision. We agree with
other circuits that where the value of the constitutional rights to be
protected far outweigh[] administrative costs that might be incurred in
formulating a remedy, the lower court proceedings . . . should
continue. See Reed v. Rhodes, 549 F.2d 1050, 1052 (6th Cir. 1976)
(considering a stay in school desegregation case).
Pet.Ex.6 at 5.
Moreover, defendants assertion that the costs will exceed $2
million, Letter of J. Hughes, April 7, 2016, #00513456484, is at this point only

speculative and, as importantly, fails to give due weight to the district courts
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commitment to keeping costs under control. As reflected in defendants own letter

and its attachments, thus far the district court has approved, in addition to the work
of the special masters themselves, work by only four peopleand only for the
months of April and May 2016. Id. at 1, Exs. A, B. Additionally, defendants
mathematical estimates are built by piling assumption upon assumption: they
[a]ssum[e] a 160-hour work month to concoct an assumed figure for monthly
salary costs, and then assume that the court will extend its approval of the four
assistants to work beyond May 2016 and for the following four months. Id. at 2.
But the district court has reserved judgment about approving any staffing beyond
May until after the special masters submit a work plan, with associated staffing
needs to the court. Id. at Exs. A, B.
In any event, DFPS previously voluntarily paid The Stephen Groupthe
consulting firm run by defendants special master nomineeover $2.1 million for
a study and implementation work similar to that contemplated for the special
masters. Pet.Ex.7 at 18-19. The Stephen Groups work addressed fewer issues
than the district courts remedial order will address, and the courts liability
findings reflect that such efforts have not remedied the systems constitutional
violations. See Pet.Ex.5 at 242. But the fact that the $2.1 million voluntarily paid
to The Stephen Group exceeds defendants speculation about the cost of the special
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master process shows that even they regard such costs as reasonable for addressing
the complex systemic problems that the district court has determined exist in
Texass foster care system.
Ultimately, however, the critical point may simply be this: in the long haul,
the cost of paying special masters will be far outweighed by what will be saved
including the long term financial savings that the state will reapwhen some of
the most fragile segments of society, abused and neglected children who have been
taken from their homes and placed into the states care, through no fault of their
own, are no longer subject to constitutionally unacceptable risks of harm.
III.
EVEN IF THE OTHER PREREQUISITES WERE SATISFIED, MANDAMUS IS

NOT APPROPRIATE UNDER THE CIRCUMSTANCES.
The principal argument defendants advance to support their assertion that
issuance of the writ would be appropriate under the circumstances is that the
district courts order raises federalism concerns. Pet. at 22. But in making this
argument they act as if they had not previously made this exact argument in their
motion to stay the district courts orderand as if this Court had not declined to
grant the stay they sought. A side-by-side comparison of the argument made in
their mandamus petition and in their stay motion helps illustrate that there is
nothing new here that defendants did not already say before:
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Defendants Mandamus Petition
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Defendants Motion to Stay Injunction

(attached hereto as Exhibit 2)
The courts injunction raises serious
Lastly, a writ of mandamus would be
federalism concerns because it attempts
appropriate under these circumstances
to wrest control of the Texas foster-care
because the case raises federalism
system from the States elected
concerns. This lawsuit attempts to put
Texass PMC under the indeterminately representatives, executive officers, and
judges. Ex.2 at 1.
continuous control of a federal judge,
instead of the States elected
representatives and executive officers
where it belongs. Pet. at 22.
This Court should vacate the
Defendants are being forced to
subsidize this federal takeover without injunction and end this misguided
federal takeover of Texass foster-care
first having an opportunity to contest
the findings and conclusions underlying system. Ex.2 at 1.
the putative injunctive relief only
amplifies the federalism concerns. Pet.
at 22.
Finally, in addressing DFPSs efforts
The court dismissed Transformation
to reduce turnover, the district court
because it saw no evidence that the
reform, which was only initiated a few completely discounted CPS
Transformation.. . . But it is
weeks before trial, was working. Pet.
unreasonable to expect that a major
at 23.
reform will produce discernible results
after mere weeks, and it is improper to
disregard reform efforts just because
they were initiated after suit seeking
injunctive relief was filed. Ex.2 at 1011.
The court is simply substituting its
The district courts injunction is also
policy preferences for those of state
objectionable because it inappropriately
leaders and socialwelfare
employs a special master, for an
professionals. Pet. at 24.
indefinite time period and at the States
expense, to recommend blueprints for
rebuilding the foster-care system to
serve the district courts policy
preferences. Ex.2 at 1.
The district courts award of injunctive The district courts award of injunctive
28
Case: 16-40482
Document: 00513475829
relief and appointment of a special

master encroach upon terrain that is
rightfully the province of the State.
Pet. at 24.
Page: 39
relief and appointment of a special

master encroach upon terrain that is
rightfully the province of the
legislature. Ex.2 at 20.
Not only are their arguments a rehash of their prior ones, but defendants also
ignore that there is nothing about the courts appointment of the special masters
that uniquely triggers the concerns they raise. If the court had decided to do the
work itself that it assigned to the masters, defendants concerns about federalism
would be just as strident. Defendants fail to show that appointment of the special
mastersthe sole basis on which their petition for mandamus is basedwarrants
issuance of the writ.
Other than paying for the masters time, there are no consequences that will
result by allowing the appointment order to stand. Defendants will not be required
to make any substantive changes as a result of the masters efforts over the next
six months.
No changes whatsoever will be required until the district court
concludes its de novo review of the masters recommendations and enters its final
judgmentat which point defendants will be able to seek an appeal.
In any event, while courts certainly must be sensitive to the states interest in
managing its own affairs, the law is clear that the judicial responsibility to remedy
29
Case: 16-40482
Document: 00513475829
Page: 40
constitutional violations cannot be ignored. As the Supreme Court recently put it

in Brown v. Plata, 131 S. Ct 1910, 1928-29 (2011):
A prison that deprives prisoners of basic sustenance, including
adequate medical care, is incompatible with the concept of human
dignity and has no place in civilized society. If government fails to
fulfill this obligation, the courts have a responsibility to remedy the
resulting Eighth Amendment violation. Courts must be sensitive to the
States interest in punishment, deterrence, and rehabilitation, as well
as the need for deference to experienced and expert prison
administrators faced with the difficult and dangerous task of housing
large numbers of convicted criminals. Courts nevertheless must not
shrink from their obligation to enforce the constitutional rights of all
persons, including prisoners. Courts may not allow constitutional
violations to continue simply because a remedy would involve
intrusion into the realm of prison administration.
Here, the rights at stake are those not of prisoners but of innocent children. Even
Defendants own special master nominee rightly acknowledged those stakes.
Children are hurt every day by systemic problems, John Stephen emphasized at
the hearing to select a special master, and [t]hats why you need an urgency to fix
things. Pet.Ex.7 at 84-85.
CONCLUSION & PRAYER
For these reasons, respondents request that the Court deny the petition for a
writ of mandamus, deny the request for a stay, and grant respondents all other
relief to which they are justly entitled.
30
Case: 16-40482
Document: 00513475829
April 21, 2016

Sara Bartosz
CHILDRENS RIGHTS
330 Seventh Avenue, Fourth Floor
(212) 683-2210
(212) 683-4015 (Fax)
(844) 422-2425
Page: 41
Respectfully submitted,
/s/ Reagan W. Simpson
Reagan W. Simpson
R. Paul Yetter
Lonny Hoffman
Christian J. Ward
YETTER COLEMAN LLP
(713) 632-8000
(713) 632-8002 (Fax)
Barry F. McNeil
David Dodds
Dallas, Texas 75219
(214) 651-5000
(214) 200-0535 (Fax)
Attorneys for Appellees
31
Case: 16-40482
Document: 00513475829
Page: 42
CERTIFICATE OF COMPLIANCE
1.
This document complies with the type-volume limitations of Federal
Rule of Appellate Procedure 27(d)(2) because this brief contains 30 pages,

excluding the parts of the motion exempted by Federal Rule of Appellate
Procedure 27(d)(2).
2.
This brief complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of

Appellate Procedure 32(a)(6) because this brief has been prepared in a
proportionally spaced typeface using Microsoft Office Word 2010 in 14-Point
Times New Roman font.
Date: April 21, 2016

Reagan W. Simpson
32
Case: 16-40482
Document: 00513475829
Page: 43
CERTIFICATE OF SERVICE
I certify that this response was filed with the Court via the courts electronic
filing system, on April 21, 2016, and an electronic copy of this document was
served on all counsel of record, as listed below, via the Courts electronic filing
system on the same date:
Ken Paxton
Charles E. Roy
Scott A. Keller
Joseph D. Hughes
Phillip A. Lionberger
Thomas A. Albright
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC-059)
Austin, Texas 78711-2548
Reagan W. Simpson
33

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Case: 16-40482

Date Filed: 04/21/2016

Attorneys for Respondents

Date Filed: 04/21/2016

CERTIFICATE OF INTERESTED PERSONS

Respondents are represented in the Fifth Circuit by:

M.D., by next friend

D. I., by next friend

J. S., by next friend

K. E., by next friend

Date Filed: 04/21/2016

D. P., by next friend

Marcia Robinson Lowry

T. C., by next friend

Additional counsel that represented Respondents in the district court are:

M.D., by next friend

D. I., by next friend

K. E., by next friend

Richard Thaddeus Behrens

D. P., by next friend

Date Filed: 04/21/2016

Petitioners are represented in the Fifth Circuit by:

Greg G. Abbott, in his official

Chris Traylor, in his official

Additional counsel that represented Petitioners in the district court are:

Greg G. Abbott, in his official

Chris Traylor, in his official

Date Filed: 04/21/2016

THE DISTRICT COURT COMMITTED NO ERROR, AND CERTAINLY

Appointing Masters To Assist In Planning, Developing, And

Case law reflects the longstanding practice of using

This Court has approved appointment of masters to assist

Appointment of masters at the remedial stage is

The special masters are to aid the court in evaluating and

The Order Does Not Direct The Special Masters To Apply

DEFENDANTS HAVE A FULLY ADEQUATE ALTERNATIVE REMEDY

The Masters Appointment Is Limited, Not Open-Ended. ..............24

Date Filed: 04/21/2016

Defendants Fragmented Process Argument Is A Red

Having To Pay For Special Masters Does Not Demonstrate

III. EVEN IF THE OTHER PREREQUISITES WERE SATISFIED, MANDAMUS

Date Filed: 04/21/2016

Date Filed: 04/21/2016

Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys,

Date Filed: 04/21/2016

Labor/Community Strategy Ctr. v. Los Angeles County Metro.

Date Filed: 04/21/2016

Date Filed: 04/21/2016

Date Filed: 04/21/2016

The district court further announced its intention to craft an injunction, to be

Date Filed: 04/21/2016

Date Filed: 04/21/2016

The other special master, Professor Francis McGovern, is equally

impressive, with extensive experience as a court-appointed special master in

Date Filed: 04/21/2016

Date Filed: 04/21/2016

THE DISTRICT COURT COMMITTED NO ERROR, AND CERTAINLY DID NOT

Appointing Masters To Assist In Planning, Developing, And

In appointing the special masters, the district court exercised a traditional

Case law reflects the longstanding practice of using masters

Date Filed: 04/21/2016

Date Filed: 04/21/2016

Date Filed: 04/21/2016