M. D., by next friend Sarah R. Stukenberg; Z. H., by next friend Carla B. Morrison; S. A., by next friend Javier Solis; A. M., by next friend Jennifer Talley; J. S., by next friend Anna J. Ricker; H. V., by next friend Anna J. Ricker; L. H., by next friend Estela C. Vasquez; C. H., by next friend Estela C. Vasquez; A. R., by next friend Tom McKenzie, individually and on behalf of all other similarly situated, Plaintiffs - Appellees
GREG ABBOTT, in his official capacity as Governor of the State of Texas; COURTNEY PHILLIPS, in her official capacity as Executive Commissioner of the Health and Human Services Commission of Texas; HENRY WHITMAN, JR., in his official capacity as Commissioner of the Department of Family and Protective Services of the State of Texas, Defendants - Appellants
Appeals from the United States District Court for the
Southern District of Texas
HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
BROWN CLEMENT, CIRCUIT JUDGE
case returns to us after a limited remand. After our opinion
in M.D. by Stukenberg v. Abbott (Stukenberg
I), 907 F.3d 237 (5th Cir. 2018), the district court was
tasked with modifying its injunction remedying certain
constitutional deficiencies in Texas's foster-care
system. The State now asks us to vacate many of the modified
injunction's provisions. For the following reasons, the
modified injunction is affirmed in part, affirmed with
modification in part, and vacated in part.
case's underlying facts are thoroughly laid out in
Stukenberg I, 907 F.3d at 243-47. In short, this
case is about the constitutionality of Texas's
foster-care system. Plaintiffs are a certified class of minor
children in the permanent management conservatorship (PMC) of
the Department of Family Protective Services (DFPS). We
previously found that DFPS's policies violated
Plaintiffs' substantive-due-process rights in two ways:
(1) by maintaining overburdened caseworkers who are
responsible for the children in the PMC; and (2) by failing
to adequately monitor and oversee the children in the
licensed foster care (LFC) subclass. Id. at 256-68.
But we reversed the district court's other two liability
findings. Id. at 268-70. We did not believe that
DFPS's placement array or the foster group homes-in and
of themselves- created a constitutionally cognizable harm to
the children. Id.
on these findings, we evaluated the district court's
extensive injunction, which mandated dozens of specific
remedial measures. Id. at 271- 87. We noted that an
injunction must be narrowly tailored to cure the specific
constitutional violations at issue and must not go beyond
what is "minimally required" to bring the State
into constitutional compliance. Id. at 272. With
this standard in mind, we validated and invalidated many of
the injunction's specific provisions. Id. at
271-87. We concluded by remanding the case to modify the
permanent injunction "consistent with this
opinion." Id. at 288. The remand was a limited
Stukenberg I issued, the district court promptly
requested briefing on how to comply with Stukenberg
I. And in November 2018, the district court issued the
modified injunction. The State now appeals, unhappy with the
district court's revisions.
a modified injunction comports with a remand order is
reviewed de novo. See Ball v. LeBlanc, 881 F.3d 346,
350-51 (5th Cir. 2018). The district court must
"implement both the letter and the spirit of the
appellate court's mandate and . . . not disregard the
explicit directives of that court." United States v.
Lee, 358 F.3d 315, 321 (5th Cir. 2004). It cannot reopen
issues expressly or implicitly decided by the appellate
court. Gene & Gene, LLC v. BioPay, LLC, 624 F.3d
698, 702 (5th Cir. 2010).
same time, the grant of a permanent injunction is reviewed
for an abuse of discretion. Stukenberg I, 907 F.3d
State argues that many of the modified injunction's
provisions are improper, either because they are inconsistent
with Stukenberg I, are outside the scope of the
limited remand, or are substantively problematic. The
specific provisions at issue are: (1) the 24-hour-supervision
provisions; (2) the face-to-face-meeting provision; (3) the
workload-study provisions; (4) the integrated-computer-system
provisions; (5) the missing-medical-records provision; (6)
the Monitor provisions; and (7) the termination provisions.
We take them in that order.
2015 liability opinion, the district court prohibited the
State from placing children in "foster group homes that
lack 24-hour awake-night supervision." We did not
disturb that ruling in Stukenberg I. On remand, the
district court expanded the supervision requirement to apply
to all PMC placements housing more than six children. The
State urges that this expansion improperly exceeds the scope
of the limited remand.
making this argument, the State misconstrues ODonnell v.
Goodhart (ODonnell II), where this court considered
whether a modified injunction dealing with Texas's bail
system complied with the mandate rule. 900 F.3d 220 (5th Cir.
2018). In a previous case, we had vacated the original
preliminary injunction over the bail system and remanded so
that the district court could "craft a revised
injunction-one that is narrowly tailored to cure the
constitutional deficiencies the district court properly
identified." ODonnell v. Harris Cty. (ODonnell
I), 892 F.3d 147, 166-67 (5th Cir. 2018). In
ODonnell II, this court found that a particular
provision fell "outside the confines of [the] narrow
remand" because it addressed a problem not
"originally identified" by the district court. 900
F.3d at 225. This court continued: "Remand is not the
time to bring new issues that could have been raised
not the case here. In Stukenberg I, we recognized
that the 24-hour-supervision requirement had remedied the
"most egregious" problem with the foster group
homes: a "lack of adequate supervision." 907 F.3d
237, 270. The district court's original injunction
addressed that violation, albeit in an overbroad manner.
Indeed, we invalidated the original provision prohibiting
"any family-like placement that houses more than six
children" because we failed to see why-absent the
supervision problems-the conditions in the foster group homes
unconstitutionally amplified the risk of harm to the
children. Id. at 270, 282. In contrast, rather than
outright banning placements housing more than six children,
the modified injunction simply requires 24-hour-supervision.
In doing so, it hews more closely to the violation identified
in Stukenberg I: the lack of proper supervision.
Thus, this case is unlike ODonnell II, as the
district court has not attempted to rectify a newly
addition to its primary argument, the State also notes that
the modified injunction's 24-hour-supervision requirement
would apply not only to LFC placements but also to unlicensed
placements, such as kinship placements in which a child is
placed with a relative. This would be problematic. Plaintiffs
do not object to modifying the requirement to clarify that it
applies only to LFC placements. So we do exactly that. The
24-hour-supervision requirement is affirmed with the
modification that it applies only to LFC placements, not
Stukenberg I, we invalidated many
"caseload-specific injunction provisions." 907 F.3d
at 274. We did so because they "exceed[ed] what [was]
required to achieve constitutional compliance or [did] not
directly address the problems giving rise to the caseload
management violation." Id. Among the provisions
struck down for these reasons was one prohibiting DFPS from
using I-See-You (ISY) workers. Id.
our elimination of this provision, the district court
reinserted a similar one in the modified injunction. The
injunction now requires that all monthly face-to-face
meetings with the PMC children be conducted by primary
caseworkers, not ISY workers. The State argues that the new
provision is a reincarnation of the invalidated one banning
the use of ISY workers. While nominally allowing ISY workers
to exist, the new face-to-face provision eliminates their
primary responsibility. Thus, the State argues that it is
inconsistent with Stukenberg I.
response, Plaintiffs exclaim that the face-to-face provision
is one of the modified injunction's most important. On
their account, it "directly addresses the fundamental
problems with the State's existing practices with regard
to secondary caseworkers." They then spill much ink
pointing out the deficiencies of ISY workers when it comes to
conducting face-to-face visits with the PMC children and the
virtues of requiring primary caseworkers (who have more
training and experience) to conduct all face-to-face visits.
Plaintiffs are correct that the State's use of ISY
workers has many problems, their argument fails to
acknowledge that we did not find those problems
constitutionally suspect in Stukenberg I. We
discussed the insufficiency of ISY workers solely to show
that DFPS's use of them did not show a reasonable effort
to alleviate the substantial risks associated with
overburdened primary caseworkers. 907 F.3d at 262-63. It was
the crushing workload on primary caseworkers-not ISY
workers' face-to-face visits-that we held violated
Plaintiffs' substantive-due-process rights. Id.
at 264-65. And it is in relation to that violation that the
district court was supposed to revise the injunction.
this violation in mind, the modified injunction's
face-to-face provision cannot stand. Imposing on primary
caseworkers the additional duty of conducting all
face-to-face visits no more "directly address[es] the
problems giving rise to the caseload management
violation" than does the invalidated provision
eliminating ISY workers. Id. at 274. In fact, it
would likely increase their workload. It appears that this
provision was the district court's well-intentioned
attempt to fix the problems with ISY workers'
face-to-face visits. But eliminating those problems was not
what the district court was charged with doing on remand.
face-to-face provision is vacated as being inconsistent with
first time around, we struck down the caseload caps on
primary caseworkers and the Residential Child Care Licensing
(RCCL) investigators, but we also made clear that DFPS should
"determine how many cases, on average, caseworkers"
and RCCL investigators can safely manage and should then
establish internal guidelines for caseload ranges.
Stukenberg I, 907 F.3d at 274, 279. On remand, the
district court implemented this recommendation by ordering
DFPS to conduct workload studies as to both types of workers.
Yet it did not leave the studies' planning and execution
solely in the hands of DFPS. Instead, it stated that
"DFPS, in consultation with and under supervision of the
Monitors, shall propose [workload studies]" at which
point the court would "convene a hearing to review the
State contends that by requiring the workload studies to be
done under the Monitors' and the court's supervision,
the district court deviated from Stukenberg I's
instructions. The Stukenberg I opinion makes clear,
the State says, that DFPS should be able to determine-all on
its own-how many cases, on average, caseworkers and RCCL
investigators can safely carry.
reject the State's argument. The district court
undoubtedly has the equitable power to oversee compliance
with its own injunction. The supervision requirement over the
workload studies simply makes explicit that implicit power.
We do not read Stukenberg I as forbidding the court
from exercising control and supervision over the workload
studies-especially when the State has a history of conducting
them inadequately. See 907 F.3d at 261. Moreover,
despite the supervision and input from the Monitors and the
district court, DFPS will still be involved in designing and
conducting the workload studies, and reaching conclusions
from them. All this is to say, the district court's
supervision requirement is faithful to the spirit of
Stukenberg I and does not do clear violence to its
letter. See Lee, 358 F.3d at 321 (noting
that the district court must "implement both the letter
and the spirit of the appellate court's mandate").
we turn to the integrated-computer-system requirement. We
previously upheld the original injunction's provision
demanding the creation of an "integrated computer
system" containing the PMC children's "complete
records, including but not limited to a complete migration of
all medical, dental, educational, placement recommendations,
court records, mental health and caseworker records."
Stukenberg I, 907 F.3d at 282-83. The district court
reincorporated this provision into the modified injunction
and also included a provision giving all relevant personnel
access to the complete records in the integrated computer
State does not deny that the district court faithfully
adhered to Stukenberg I by reincorporating these
provisions. Nor could it. Rather, it seeks to reargue on the
merits that the integrated-computer-system requirement should
be invalidated because it is unprecedented, tremendously
expensive, and maybe even impossible to accomplish.
treat the State's request as a quasi-motion for
reconsideration on this issue. And after careful review, we see
that our initial decision upholding the integrated computer
system was erroneous. It is inconsistent with the broader
remedial principles we laid out in Stukenberg I. The
multimillion-dollar computer-system overhaul-while maybe a
best practice-goes well beyond what is minimally required to
remedy the caseload and oversight violations. Indeed, we find
it (just like the caseload cap) to be "too blunt a
remedy for a complex problem." 907 F.3d at 274. An
integrated computer system, which at most two other States
use, cannot represent the constitutional floor for
we now invalidate the integrated-computer-system requirement
and the accompanying access provision. The goal is a
constitutionally effective foster-care program, not a
specific kind of computer system used to help achieve that
our expressed validation of the integrated computer system,
the district court ordered DFPS on remand "to address
and remediate missing and nonexistent medical and mental
health care records." According to the district court, a
comprehensive computer system "would not be effective
for preventing an unreasonable risk of serious harm if
medical records were missing or nonexistent." Because we
have invalidated the integrated computer system, there is no
longer a justification for this provision. Therefore, it is
vacated as well.
are the Monitor provisions. The original injunction contained
13 provisions appointing and listing the Monitors'
duties. We did not address those provisions in Stukenberg
I. The modified injunction includes those 13 original
provisions plus 3 new ones. The new provisions (1) give the
Monitors remote access to the electronic systems DFPS uses to
store data about the PMC children, (2) compel DFPS to
"supply the Monitors [with] raw data relevant to the
2015-2016 workstudy conducted by DFPS" and all the
available data "relevant to all previous third-party
studies," and (3) command the State to pay the Monitors.
The State lodges both procedural and substantive attacks
against these provisions.
procedural side, the State argues that the limited remand is
not the time to impose new requirements that could have been
included in the original permanent injunction. For support,
the State again draws on ODonnell II. But once more
it is distinguishable. The problematic injunctive provision
in ODonnell II was substantive. It attempted to
remedy a constitutional deficiency the original injunction
did not identify. 900 F.3d 220 at 225. The Monitor
provisions, on the other hand, are administrative. They do
not attempt to solve a new constitutional puzzle originally
left unaddressed by the district court; they simply represent
the district court's revised attempt to ensure that the
State fixes the constitutional problems it identified (and we
affirmed) in the original injunction.
State's procedural argument is unavailing, we now turn to
its substantive objections, which concern the remote access
and third-party data.
the State argues that the new provision providing the
"Monitors, their staff[, ] and consultants with
unrestricted, routine and ongoing remote access" to
DFPS's electronic systems is a serious confidentiality
risk and could result in the inadvertent alteration or
destruction of vital records. The State is primarily
concerned with giving such unrestricted access to the staff
and consultants without requiring them to keep the
information confidential. As the State correctly points out,
they may not be qualified to handle such sensitive
information. The district court's failure to address
these legitimate confidentiality concerns was an abuse of
discretion. So while we affirm the remote-access provision,
we modify the injunction to require that any of the
Monitors' staff and consultants who have unrestricted,
remote access to DFPS's systems be qualified to handle
the information (including screening for criminal history),
be taught how to use the systems, and be given
confidentiality agreements to sign.
the State argues that requiring DFPS to turn over "all
available raw data relevant to all previous third-party
studies" is overly burdensome, wasteful, and has no
conceivable benefit. Plaintiffs do not contest this point in
their brief. And we agree that requiring the State to turn
over this data was an abuse of discretion. The district court
made no findings justifying such an expensive and
time-consuming production. Nor did it state what the purpose
of doing so would be. We vacate the injunctive provision
dealing with the previous third-party studies. This vacatur
does not apply to the data relevant to the 2015-2016
workstudy to which the State has no objection.
the State objects to the modified injunction's
termination provisions. These same provisions were in the
original injunction, yet we heard nothing from the State
about them in the original appeal. The State cannot now
challenge these provisions. It is too late for that. The
State's arguments are waived. See Med. Ctr. Pharmacy
v Holder, 634 F.3d 830, 834 (5th Cir. 2011) ("The
waiver doctrine bars consideration of an issue that a party
could have raised in an earlier appeal in the case."
administrative matter, Plaintiffs would like the stay lifted
in full. We decline to do so, and the stay will remain ...