State petition for writ of mandamus

No. 16-___

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; and

John J. Specia, Jr., in his official capacity as Commissioner of the Department of Family and Protective Services of the State of Texas

On Petition for Writ of Mandamus to the United States District Court

for the Southern District of Texas, Corpus Christi Division Case No. 2:11-CV-00084

PETITION FOR WRIT OF MANDAMUS

Ken Paxton Attorney General of Texas Jeffrey C. Mateer First Assistant Attorney General Office of the Attorney General P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1700 Fax: (512) 474-2697

Scott A. Keller Solicitor General Joseph D. Hughes Philip A. Lionberger Assistant Solicitors General Thomas A. Albright Assistant Attorney General

Counsel for Petitioners

Case: 16-40482 Document: 00513448795 Page: 1 Date Filed: 04/01/2016

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No. 16-___

In re: Greg Abbott, et al.

Certificate of Interested Persons

Pursuant to Fifth Circuit Rule 21, the undersigned counsel of record certifies that the following listed persons and entities, as described in the fourth sentence of Fifth Circuit Rule 28.2.1, have an interest in the outcome of this case. These representations are made so that the judges of this Court may evaluate possible disqualification or recusal.

Petitioners Petitioners’ Counsel 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

Ken Paxton Jeffrey C. Mateer Scott A. Keller Joseph D. Hughes Philip A. Lionberger Thomas A. Albright Angela V. Colmenero Andrew B. Stephens Marc Rietvelt Office of the Attorney General

Respondent

The Honorable Janis Graham Jack United States District Court for the Southern District of Texas, Corpus Christi Division


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Respondents Respondents’ Counsel M.D., by next friend Sarah R. Stukenberg

D.I., by next friend Nancy G. Pofahl

Z.H., by next friend Carla B. Morrison

S.A., by next friend Javier E. Solis

A.M., by next friend Jennifer Talley

J.S., by next friend Anna J. Ricker

K.E., by next friend John W. Cliff, Jr.

D.P., by next friend Karen J. Langsley

T.C., by next friend Paul Swacina

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 CHILDREN’S RIGHTS Marcia Robinson Lowry A Better Childhood, Inc. 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. Transcript Excerpt 13. Transcript Excerpt 14. Transcript Excerpt 15. Transcript Excerpt 16. Transcript Excerpt 17. Transcript Excerpt 18. Transcript Excerpt 19. Transcript Excerpt 20. Transcript Excerpt 21. Transcript Excerpt 22. Transcript Excerpt 23. Transcript Excerpt 24. Transcript Excerpt 25. TSG Report: Assessment Findings 26. TSG Report: Recommendations 27. Report to Sunset Advisory Commission 28. Transformation Weekly Update 29. CPS Transformation Work Plan 30. CPS Transformation Goals and Priorities 31. CPS Transformation Status Report 32. Transcript Excerpt 33. Transcript Excerpt 34. Transcript Excerpt 35. Transcript Excerpt 36. Letter to Judge Jack from Special Master Kevin Ryan 37. 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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Ex parte Peterson, 253 U.S. 300 (1920) .................................................................... 6

Griffith v. Johnston, 899 F.2d 1427 (5th Cir. 1990) ................................................ 12

Hall v. Smith, 497 F. App’x 366 (5th Cir. 2012) (per curiam) ................................ 11

Hernandez v. Texas Department of Protective and Regulatory Services, 380 F.3d 872 (5th Cir. 2004) ................................................................................. 11

Horne v. Flores, 557 U.S. 433 (2009) ..................................................................... 24

In re Volkswagen of Am. Inc., 545 F.3d 304 (5th Cir. 2008) (en banc)........... 16, 20, 21

In re Watkins, 271 F.2d 771 (5th Cir. 1959) ................................................. 15, 19, 21

K.H. ex rel. Murphy v. Morgan, 914 F.2d 846 (7th Cir. 1990) .................................. 12

La Buy v. Howes Leather Co., 352 U.S. 249 (1957) ........................................... passim

Liptak v. United States, 748 F.2d 1254 (8th Cir. 1984) (per curiam) ......................... 7

M.D. ex rel. Stukenberg v. Perry, 294 F.R.D. 7 (S.D. Tex. 2013) ......................... 3, 14

M.D. ex rel. Stukenberg v. Perry, 547 F. App’x 543 (5th Cir. 2013) (per curiam) ...................................................................................................... 3

M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832 (5th Cir. 2012) .................................. 3

Marisol A. ex rel. Forbes v. Giuliani, 929 F. Supp. 662 (S.D.N.Y. 1996) .................. 12

Prudential Ins. Co. of Am. v. U.S. Gypsum Co., 991 F.2d 1080 (3d Cir. 1993) ......... 20

R. G. v. Koller, 415 F. Supp. 2d 1129 (D. Haw. 2006) ............................................ 12

Sierra Club v. Clifford, 257 F.3d 444 (5th Cir. 2001) .................................... 7, 15, 20

United States v. Microsoft Corp., 147 F.3d 935 (D.C. Cir. 1998) ........................ 10, 16

Statutes and Rules

28 U.S.C. § 1292(a) .............................................................................................. 17

28 U.S.C. § 1292(b) ....................................................................................... passim

42 U.S.C. § 1983 ..................................................................................................... 3

Fed. R. Civ. P. 23(b)(2) ...................................................................................... 9

Fed. R. Civ. P. 53 ......................................................................................... 1, 12

Fed. R. Civ. P. 53(a)(1)(C) .................................................................. 2, 6, 10, 11

Fed. R. Civ. P. 53(b) ................................................................................... 17, 18


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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


Statement of Relief Sought

Greg Abbott et al., petitioners herein and defendants below (collectively,

“Defendants”), seek mandamus relief directing the district court to vacate its

Appointment Order of March 21, 2016, which refers this case to special

masters to devise plans for ameliorating alleged constitutional violations in the

State’s foster-care system.1 The writ should direct the district court to craft

appropriate injunctive relief. Defendants further request that the Court stay

any special-master proceedings pending the disposition of this petition.

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 non-

consensual consent decree. Mandamus relief is accordingly warranted.

1 Petitioners dispute the correctness of the district court’s 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. FRCP 53(a)(1)(C) allows a district court to refer to a special master certain post-trial matters that “cannot be effectively and timely addressed by an available district judge or magistrate judge of the district.” The district court’s Appointment Order delegates to special masters the task of crafting injunctive relief to address alleged constitutional violations in the State’s foster-care system. Does the Appointment Order represent a clear abuse of discretion?

2. The district court denied Defendants’ application for a permissive interlocutory appeal of the Appointment Order under 28 U.S.C. § 1292(b). Moreover, waiting to overturn the Appointment Order on appeal from the final injunction would exact a high price in terms of time, resources, and money. Do Defendants have an adequate remedy by appeal?

3. In addition to the requirements of a clear abuse of discretion and no adequate remedy by appeal, the issuance of a writ of mandamus must be appropriate under the circumstances. In this case, the Appointment Order raises significant concerns regarding the delegation of judicial tasks, the integrity of the proceedings, and federalism. Is the issuance of a writ of mandamus appropriate under the circumstances of this case?

Statement of Facts

Plaintiffs in the underlying civil action are nine children (“Named

Plaintiffs”) in the custody of Texas’s 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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Amendment’s 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 court’s class-

certification 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. App’x 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 DFPS’s policies

and practices concerning the PMC violated Plaintiffs’ substantive due process

rights, entitling them to injunctive relief. Ex.5, at 242-45.

2 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

court’s 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

master’s 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]ourt’s 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 Court’s 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 court’s 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 Texas’s 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 DFPS’s 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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Reasons Why the Writ Should Issue

I. The District Court Clearly Abused Its Discretion by Referring This Case to Special Masters.

A. The Appointment Order Does Not Comply with FRCP 53.

The district court issued the Appointment Order under FRCP

53(a)(1)(C), which allows a judge to refer to a special master only those post-

trial matters that “cannot be effectively and timely addressed by an available

district judge or magistrate judge of the district.” The Appointment Order

does not satisfy this requirement, and thus the court’s referral of the case to

special masters is a clear abuse of discretion warranting mandamus relief. See

La Buy v. Howes Leather Co., 352 U.S. 249, 259 (1957).

In La Buy, the Supreme Court warned that “[t]he use of masters is ‘to aid

judges in the performance of specific judicial duties’ . . . and not to displace

the court.” Id. at 256 (quoting Ex parte Peterson, 253 U.S. 300, 312 (1920)). In

referring two consolidated antitrust cases to a special master, the district court

had cited its congested docket, the extensive amount of time required to try

the cases, and the complex factual and legal issues presented. Id. at 259. The

Supreme Court affirmed the court of appeals’ exercise of mandamus power

vacating the referral, holding that those circumstances did not constitute an

exceptional condition justifying a reference under Rule 53. Id. at 259-60. The

Court recognized that if congestion and complexity were sufficient bases to

refer a case to a special master, non-consensual references would become “the

rule rather than the exception.” Id. at 259. Moreover, the district court’s


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significant involvement in various pretrial matters undermined the reference.

See id. at 252 (noting that “much time would have been saved at the trial had

[the district judge] heard the case because of his familiarity with the

litigation”).

In Sierra Club v. Clifford, this Court followed La Buy in observing that a

“reference to a master shall be the exception and not the rule” and may “be

made only upon a showing that some exceptional condition requires it.” 257

F.3d 444, 446 (5th Cir. 2001); see Liptak v. United States, 748 F.2d 1254, 1257

(8th Cir. 1984) (per curiam) (noting that La Buy has been “widely interpreted

as sharply limiting the use of nonconsensual reference”). In Clifford, the

Court rejected the use of a special master to adjudicate dispositive motions in

a complex administrative dispute, noting that “voluminous filings containing

highly technical documents and declarations” are “pretty much the norm for

modern federal litigation.” 257 F.3d at 447. The Court observed that many

federal cases involve compliance with governmental regulations, and stated

that “the [district] court’s unfamiliarity with the subject matter can hardly

excuse the court’s obligation to carry out its judicial function.” Id.

As in La Buy and Clifford, the reference to special masters in this case was

a clear abuse of discretion. The length, detail, and comprehensiveness of the

district court’s Opinion finding constitutional violations in DFPS’s

administration of the PMC belie the notion that the court has neither the time


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nor the expertise to craft an injunction.3 This case has been on Judge Jack’s

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 that’s 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 time”—and 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 Texas’s 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

3 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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lacks sufficient knowledge to render appropriate injunctive relief is simply

untenable. Cf. La Buy, 352 U.S. at 256 (noting that the district court’s

“knowledge of the cases at the time of the references, together with his long

experience in the antitrust field, points to the conclusion that he could dispose

of the litigation with greater dispatch and less effort than anyone else”).

Nor has there been any showing that no other district or magistrate judge

in the Southern District is “available,” as FRCP 53 requires. Fed. R. Civ.

P. 53(a)(1)(C). The district is currently served by 26 district judges and 15

magistrate judges. See U.S. Dist. & Bankr. Ct., S. Dist. of Texas, History &

Statistics, http://www.txs.uscourts.gov/history-statistics (last visited Mar.

31, 2016). The district court’s finding that the matters referred to the special

masters “cannot be addressed effectively and timely by the Court,” Ex.10, at 1

(emphasis added), fails to address whether any of the 40 other judges in the

Southern District are available. Cf. La Buy, 352 U.S. at 257 (approvingly

discussing use of special master in complex patent cases where “the prolonged

illness of the regular judge” limited his availability and “no other judge was

available to try the cases”).

The Appointment Order is also defective because it is not limited to

“pretrial and posttrial matters,” such as enforcing a court-determined

injunction. Fed. R. Civ. P. 53(a)(1)(C). Rather, it delegates to the special

masters the core judicial tasks of drawing constitutional lines and crafting

injunctive relief around them. Applying constitutional standards to facts that

have already been established at trial and determining appropriate injunctive


10

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.

4 The district court likely declined to make that determination because Plaintiffs’ case-

load expert testified only as to “best practices” for caseloads and could not support Plain-tiffs’ preference for a constitutional threshold of 25 children per caseworker. Ex.21.


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B. The Appointment Order Directs the Special Masters to Apply the Wrong Constitutional Standard.

The district court also clearly abused its discretion by directing the special

masters to apply an incorrect constitutional standard. The Appointment

Order specifically directs the special masters to “formulat[e], monitor[ ], and

creat[e] an Implementation Plan in conjunction with the Court so as to . . .

bring[ ] the State into compliance with constitutional standards of care.” Ex.10, at

1-2 (emphasis added). According to the district court, “foster children have a

Fourteenth Amendment substantive due process right to be free from an

unreasonable risk of harm.” Ex.5, at 17. Thus, the constitutional standard that

the special masters are to apply is ameliorating unreasonable risk of harm in

the PMC.

That standard, however, is inconsistent with the constitutional standard

that this Court has previously announced. In Hernandez v. Texas Department

of Protective and Regulatory Services, the Court held that children in foster care

have a “right to personal security and reasonably safe living conditions.” 380

F.3d 872, 880 (5th Cir. 2004); see also Hall v. Smith, 497 F. App’x 366, 377

(5th Cir. 2012) (per curiam). That standard is clear, direct, and readily

understandable. The limited constitutional right described in Hernandez does

not extend beyond bodily integrity and a reasonably safe environment. See

Hernandez, 380 F.3d at 881 (discussing “the risk of severe physical abuse to a

foster child’s bodily integrity”) (emphasis added).


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The district court acknowledged the “personal security and reasonably

safe living conditions” standard from Hernandez, but it reframed the standard

as “the right to be free from an unreasonable risk of harm.” Ex.5, at 15. That

is a substantive revision of the Hernandez standard, not merely a paraphrasing

of it. The district court’s expansion of the relevant constitutional right ignores

this Court’s admonition to “resist the temptation to augment the substantive

reach of the Fourteenth Amendment,” Griffith v. Johnston, 899 F.2d 1427,

1435 (5th Cir. 1990), and the Supreme Court’s reluctance “to expand the

concept of substantive due process” into “unchartered area[s]” that are

“open-ended,” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992).

Reframing the constitutional right allowed the district court to look

beyond Hernandez’s straightforward and limited articulation to other

jurisdictions’ more expansive formulations of what freedom from an

unreasonable risk of harm entails. The court looked to the Hawaii district

court in R. G. v. Koller, 415 F. Supp. 2d 1129, 1156 (D. Haw. 2006), to append

a broad right to “protection from psychological . . . abuse”; to the New York

district court in Marisol A. ex rel. Forbes v. Giuliani, 929 F. Supp. 662

(S.D.N.Y. 1996), to add a “substantive due process right to be free from

unreasonable and unnecessary intrusions into their emotional well-being”;

and to the Seventh Circuit’s decision in K.H. ex rel. Murphy v. Morgan, 914

F.2d 846, 851 (7th Cir. 1990), to include a protean constitutional obligation

“to take steps to prevent children in state institutions from deteriorating


13

physically or psychologically.” Ex.5, at 16. These purported rights exceed the

right articulated in Hernandez.

Plaintiffs’ experts included emotional insecurity, along with other “poor

outcomes,” among the risk of harms that all PMC children allegedly face. One

expert defined “harm” to include “sexual, emotional, psychological, mental,

sociological harm.” Ex.16, at 75, ll. 18-19. Another similarly defined “harm”

as “emotional, physical, social, developmental hurt, injury.” Ex.17, at 45, ll.

15-16. The district court’s insistence that “[t]here is no difference between

harm in general and harm to personal security and reasonably safe living

conditions,” Ex.5, at 17, represents the kind of open-ended expansion of

substantive due-process rights that this Court and the Supreme Court have

prohibited.

The constitutional obligation to ensure “personal security and reasonably

safe living conditions” does not make DFPS strictly liable for the psychologi-

cal well-being and emotional development of every child in foster care. As the

district court acknowledged, most foster children “are already damaged when

they come into the system,” Ex.18, at 155, ll. 21-22, and some “are so damaged

that nothing good can be done,” Ex.19, at 156, ll. 4-5. Yet the district court’s

expansion of “harm” means that the special masters are being tasked with

enacting vast structural reforms that extend far beyond the standard articu-

lated in Hernandez. Thus, any remedies in the Implementation Plan that the


14

special masters devise will be impermissibly overbroad. Their efforts—at tre-

mendous expense to Texas taxpayers—will be useless in crafting an appropri-

ate 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 child’s 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.

II. Defendants Have No Adequate Remedy by Appeal.

The district court’s Opinion grants Plaintiffs very limited injunctive relief

on one issue pertaining to a single subclass. Ex.5, at 245; see Ex.6, at 3-4

(discussing narrow interpretation). But the bulk of the district court’s

contemplated injunctive relief, which the court has delegated to the special

masters to formulate, has not yet been finalized into an appealable order. That

injunctive relief is therefore interlocutory. Ex.5, at 246; Ex.10, at 8. To finalize

the injunction, the court still has “to issue orders as necessary to remedy the

constitutional violations described in [the] Opinion.” Ex.5, at 246. Towards


15

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 court’s 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


16

mandamus to vacate the reference to a special master); Arthur Murray, Inc. v.

Oliver, 364 F.2d 28, 35 (8th Cir. 1966) (holding that, except as to the auditing

of plaintiff’s books and records, the reference to a special master was so

inappropriate as to warrant mandamus relief). As shown above in section I,

the Appointment Order referring this case to special masters does not satisfy

the exceptional-condition standard of La Buy and warrants mandamus relief.

If Defendants must submit to the inappropriate reference to the special

masters, when no exceptional condition justifies the non-consensual

reference, the reference will have nullified their right to a full trial before a

constitutional court. The Appointment Order follows a fragmented process of

(1) preliminary trial to determine liability and the propriety of injunctive relief,

(2) reference to special masters to craft a remedial Implementation Plan that

draws constitutional lines, and (3) adoption of the Implementation Plan into a

final judgment. The harm of being denied a full trial on both liability and

remedy by an Article III judge—the inconvenience and expense of submitting

to an intrusive special-master process—will already have been done by the

time the fragmented process is completed and can be ordinarily appealed, and

the prejudice suffered cannot be undone. See In re Volkswagen of Am. Inc., 545

F.3d 304, 319 (5th Cir. 2008) (en banc).

The special masters’ role in formulating, monitoring, and creating an

Implementation Plan is extensive and includes sweeping investigative powers

and access to any of Defendants’ information, records, personnel, and reports

that the masters might deem “helpful,” subject only to assertions of privilege,


17

other “limitations on disclosure,” or the FRCP. Ex.10, at 3. The court has

allowed the special masters to “have unlimited communications with the

parties and their staff in aid of [the Appointment] Order’s goals.” Ex.10, at 5

(emphasis added). They may also “require additional reports or studies from

the parties at any time.” Ex.10, at 5 (emphases added).

The special masters’ exercise of their duties are guided by the broad goals

listed in the court’s Opinion, Ex.10, at 3, which include, for example, such

open-ended directives as “DFPS shall improve its programs and outreach for

children who will age out of foster care so that more children take advantage

of these programs,” Ex.5, at 249, and “[t]he Special Master shall recommend

any provision beyond the Court’s Goals that are deemed necessary to cure the

State’s constitutional violations outlined in this Opinion,” Ex.5, at 250. See

also Ex.5, at 251 (“The Special Master shall recommend other provisions

deemed necessary to ensure that primary CVS caseworkers are able to protect

foster children from an unreasonable risk of harm.”); Ex.5, at 252 (“The

Special Master shall recommend other provisions deemed necessary to ensure

that RCCL protects foster children from an unreasonable risk of harm.”);

Ex.5, at 254 (“The Special Master shall recommend other provisions deemed

necessary to ensure that DFPS’s placement array no longer causes an

unreasonable risk of harm to foster children.”).

The special masters’ term of appointment is similarly open-ended. The

court has ordered that “[t]he Special Masters shall serve until the Court

determines, upon Defendants’ application, that the Special Masters are no


18

longer necessary.” Ex.10, at 8. The special masters must commence their

duties no later than April 1, 2016. Ex.10, at 2. Their Implementation Plan is

due 180 days from the date of the Appointment Order (March 21, 2016), and

a hearing is to be held on that plan 210 days from the date of the Appointment

Order. Ex.10, at 2. If the court finds any parts of the plan lacking, it may ask

the special masters to recommend additional provisions “at a later date.”

Ex.10, at 3.

And their duties do not end with the formulation of the Implementation

plan. After the Implementation Plan hearing, the special masters may monitor

for an indefinite period Defendants’ efforts at effecting the Implementation

Plan. The court directs them to submit a report every 180 days concerning the

Defendants’ progress. Ex.10, at 4. There is no end date specified for the

monitoring function. Further, the masters’ monitoring reports may

recommend additional measures to enforce the Opinion and any subsequent

orders of the court. Ex.10, at 4-5.

The special masters’ compensation is also far-reaching. The court has set

their hourly rate at $345, plus reasonable expenses. Ex.10, at 6. Assuming both

masters work a 40-hour work week, that adds up to over $110,000 per

month—before expenses or the cost of assistants. One of the special masters

has sought judicial approval add a dozen “team members,” six of whose billing

rates exceed $300 per hour, to assist the special masters. Ex.36-37. Moreover,

the special masters may apply for additional expenses if they “reasonably find

that additional services are required,” and they may apply to increase their


19

compensation. Ex.10, at 7. Given the open-ended nature of their appointment,

it is fair to say that the Appointment Order will force DFPS to pay millions of

dollars to transform the district court’s vague injunction to “immediately stop

placing PMC foster children in unsafe placements,” Ex.5, at 245, into a

specific and appealable injunction—a task the court should perform.

Moreover, it is highly unlikely that Defendants will be able to recoup any costs

or fees paid to the special masters if the reference to the special masters is

overturned following a successful appeal of the final judgment. Nor will

Defendants recover the cost of the time wasted by their employees and

representatives 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


20

thus an inadequate remedy to the district court’s improper Appointment

Order.

The district court’s denial of Defendants’ request for certification of an

interlocutory appeal under 28 U.S.C. § 1292(b), precluding that potential

avenue for appellate review, further supports the conclusion that Defendants

have no adequate remedy by appeal. See Prudential Ins. Co. of Am. v. U.S.

Gypsum Co., 991 F.2d 1080, 1083 n.4 (3d Cir. 1993) (noting preference that

petitioner first seek a § 1292(b) application before filing a petition for a writ of

mandamus); see also Volkswagen, 545 F.3d at 319 (finding no adequate remedy

by appeal and noting that “interlocutory review of transfer orders under 28

U.S.C. § 1292(b) is unavailable”); Clifford, 257 F.3d at 448 (stating that an

aggrieved party may seek review of an order of reference by an interlocutory

appeal under § 1292(b) or by a writ of mandamus). Without mandamus relief,

the erroneous and abusive Appointment Order will lead to a wasteful and

costly use of resources. Because an appeal after a final judgment is inadequate,

and because a § 1292(b) interlocutory appeal has been foreclosed by the

district court, mandamus is appropriate here.

III. Issuance of the Writ Is Appropriate in the Extraordinary Circumstances Here.

The final requirement for the issuance of mandamus is met in this case.

As this Court observed, “even if the first two prerequisites have been met, the

issuing court, in the exercise of its discretion, must be satisfied that the writ is

appropriate under the circumstances.” Volkswagen, 545 F.3d at 311 (quoting


21

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 Order’s 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 court’s 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


22

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 Texas’s PMC under the indeterminately continuous control

of a federal judge, instead of the State’s 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 State’s foster-care system.

Ex.22; Ex.23; Ex.5, at 24. TSG was given “unfettered access to [the] agency”


23

and “a very open charge” to review the agency’s 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 TSG’s review by initiating the

Transformation program, taking a phased approach to implementation of

TSG’s recommendations. Ex.5, at 35; Exs.27, 28, 29, 30, 31.

Transformation should be given a chance to succeed, notwithstanding the

district court’s 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 TSG’s 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


24

it may needlessly duplicate the extensive recommendations by those

professionals, some of which have already been implemented but are now in

danger of not being given a chance to work. Simply put, the special masters’

involvement needlessly complicates an already complex social-welfare arena

by adding another voice in the chorus of voices demanding change or reform,

which is unhelpful, undeserved, and unwanted.

The court is simply substituting its policy preferences for those of state

leaders and social-welfare professionals. The district court’s award of

injunctive relief and appointment of a special master encroach upon terrain

that is rightfully the province of the State. See Horne v. Flores, 557 U.S. 433,

448 (2009) (“[I]nstitutional reform injunctions often raise sensitive

federalism concerns. Such litigation commonly involves areas of core state

responsibility . . . .”). Such federalism concerns further support the issuance

of a writ of mandamus in this case.


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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.

Ken Paxton Attorney General of Texas Jeffrey C. Mateer First Assistant Attorney General Office of the Attorney General P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1700 Fax: (512) 474-2697

Respectfully submitted. Scott A. Keller Solicitor 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


State petition for writ of mandamus

Documents

Transcript of State petition for writ of mandamus