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M. D. v. Abbott

United States Court of Appeals, Fifth Circuit

July 8, 2019

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

          Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.


         This 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.


         This 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.

         Based 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 one. Id.

         After 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.


         Whether 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).

         At the same time, the grant of a permanent injunction is reviewed for an abuse of discretion. Stukenberg I, 907 F.3d at 248.


         The 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.


         In its 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.

         In 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 initially." Id.

         Such is 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 identified problem.

         In 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 unlicensed placements.


         In 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.[1] Id.

         Despite 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.

         In 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.

         While 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.

         With 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.

         The face-to-face provision is vacated as being inconsistent with Stukenberg I.


         The 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 proposal[s]."

         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.

         We 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.[2] 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").


         Next, 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 system.[3]

         The 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.

         We treat the State's request as a quasi-motion for reconsideration on this issue.[4] 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 record-keeping.

         Accordingly, 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 goal.


         Invoking 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.


         Next up 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.

         On the 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.

         As the State's procedural argument is unavailing, we now turn to its substantive objections, which concern the remote access and third-party data.[5]

         First, 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.

         Second, 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.


         Finally, 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." (quotation omitted)).


         As an administrative matter, Plaintiffs would like the stay lifted in full. We decline to do so, and the stay will remain ...

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