Jackson Ex Rel. Jackson v. Los Lunas Community Program ( 2018 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS January 23, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
WALTER STEPHEN JACKSON, by his
parents and next friends, Walter and Helen
Jackson; STEVE NUNEZ, by his guardian
and next friend, ARC of New Mexico;
MARY KATHERINE NOWAK, by her
next friend, James W. Ellis, Esquire;
RICHARD STANFIELD, by his father and
next friend, The Reverend Clyde Stanfield;
BETTY YOUNG, by her next friend, Mary
Dudley, Ph.D.; KELLY VAN CUREN, by
her parents and next friends, Ted and Sallie
Van Curen, on behalf of themselves and all
others similarly situated,
Plaintiffs - Appellees, No. 16-2172
and
ARC OF NEW MEXICO; AVA PEETS,
Plaintiffs Intervenors - Appellees,
v.
LOS LUNAS COMMUNITY PROGRAM;
NEW MEXICO DEPARTMENT OF
HEALTH; LYNN GALLAGHER, in her
official capacity as Secretary of the New
Mexico Department of Health; JILL
MARSHALL, in her official capacity as
Administrator for the Los Lunas
Community Program; NEW MEXICO
HUMAN SERVICES DEPARTMENT;
BRENT EARNEST, in his official capacity
as Secretary of the New Mexico Human
Services Department; NEW MEXICO
PUBLIC EDUCATION DEPARTMENT;
JOE D. CORDOVA, in his official
capacity as Director of the New Mexico
Vocational Rehabilitation Division,
Defendants - Appellants.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:87-CV-00839-JAP-KBM)
_________________________________
Jerry A. Walz (James J. Grubel appeared with him on the briefs), Walz and Associates,
P.C., Albuquerque, New Mexico, for Defendants - Appellants.
Steven J. Schwartz, Center for Public Representation, Northampton, Massachusetts
(Cathy Costanzo, Center for Public Representation, Northampton, Massachusetts; Peter
Cubra, Albuquerque, New Mexico; Philip Davis, Albuquerque, New Mexico; Ann Sims,
Los Lunas, New Mexico; Tim Gardner and Nancy Koenigsberg, Disability Rights New
Mexico, Albuquerque, New Mexico, appeared with him on the briefs), for Plaintiffs -
Appellees.
_________________________________
Before MATHESON, McKAY, and McHUGH, Circuit Judges.
_________________________________
McHUGH, Circuit Judge.
_________________________________
This civil rights class action lawsuit was filed thirty years ago to challenge
various aspects of the institutionalization of developmentally disabled individuals at
two state-supported facilities in New Mexico. After a lengthy trial in 1990, the
district court ruled that Defendants—the two institutions and the individuals charged
with their operation—were violating class members’ federal constitutional and
statutory rights. The district court ordered the parties to develop a plan to cure the
2
violations, and the plan was implemented over the ensuing years through several
consent decrees and other court-approved agreements (collectively, consent decrees).
Although the two institutions closed in the 1990s, the district court has continued to
monitor whether Defendants are in compliance with the obligations set forth in those
consent decrees (decree obligations). And in the twenty-five years since the court’s
initial ruling, the parties have agreed to, and the court has approved, numerous
additional decree obligations of varying specificity with which Defendants must
comply before the court will discontinue its oversight. As of the district court’s most
recent order, Defendants had yet to fulfill over 300 decree obligations.
In August 2015, Defendants moved under Federal Rule of Civil Procedure
60(b)(5) to vacate all consent decrees and to terminate the court’s oversight, arguing
that changed factual circumstances warrant the requested relief. The district court
denied the motion in June 2016. Defendants appealed. We vacate the 2016 Order and
remand for the district court to decide whether Defendants are currently violating
class members’ federal constitutional or statutory rights and to reassess the equity of
continuing federal oversight with the benefit of that determination.
I. BACKGROUND
To provide context for this dispute, we begin with an overview of the
procedural history of this multi-decade litigation. We then examine the district
court’s ruling on Defendants’ Rule 60(b)(5) motion under the governing legal
standard.
3
A. Litigation History
In July 1987, twenty-one developmentally disabled individuals brought this
class action lawsuit on behalf of themselves and others similarly situated. In their
complaint, Plaintiffs challenged the conditions of institutionalization at Fort Stanton
Hospital and Training School (Fort Stanton) and Los Lunas Hospital and Training
School (Los Lunas), both of which were state-supported institutions for the
developmentally disabled in New Mexico. Jackson v. Fort Stanton Hosp. & Training
Sch. (Jackson II), 964 F.2d 980, 985 (10th Cir. 1992). Plaintiffs sought to correct the
federal constitutional and statutory deficiencies of the conditions at Fort Stanton and
Los Lunas. Id. They also requested relief permitting developmentally disabled
persons residing at the institutions to live in integrated family-like settings within the
community. Id.In June 1988, the district court allowed more than 125 parents and guardians
of residents at Fort Stanton and Los Lunas to intervene. Id. Like Plaintiffs,
Intervenors sought to bring the conditions at the two institutions into compliance
with federal constitutional and statutory law. Id. But Intervenors opposed Plaintiffs’
efforts to require mandatory transfer of the institutions’ residents to community-
based facilities. Id.In June 1989, the district court certified a class of “all persons who at that time
resided at [Fort Stanton] or [Los Lunas], all persons who would become residents of
the institutions during the pendency of the action, and all persons who had been
transferred from these two institutions to other facilities funded by [D]efendants.” Id.4
1. The 1990 Order
After a prolonged trial, the district court issued, on December 28, 1990, an
extensive Memorandum Opinion and Order (1990 Order). Jackson v. Fort Stanton
Hosp. & Training Sch. (Jackson I), 757 F. Supp. 1243 (D.N.M. 1990), rev’d in part,
964 F.2d 980 (10th Cir. 1992). In the 1990 Order, the court “made detailed findings
of fact regarding almost every aspect of the conditions” at the two institutions,
Jackson II, 964 F.2d at 986, and determined that the conditions were statutorily and
constitutionally deficient in eighteen areas, Jackson I, 757 F. Supp. at 1315–16.1 The
court concluded that Defendants were discriminating against class members in
violation of § 504 of the Rehabilitation Act of 1973 by failing to provide adequate
accommodations for severely handicapped residents capable of residing in a
community setting, while simultaneously serving less severely handicapped
individuals in the community. See id. at 1297–99; see also 29 U.S.C. § 794. And the
court ruled that Defendants were violating class members’ substantive due process
rights under the Fourteenth Amendment and Youngberg v. Romeo, 457 U.S. 307(1982). See Jackson I, 757 F. Supp. at 1305–13. Specifically, the court ruled that
1
The eighteen areas of deficiencies are: (1) individual program plans; (2)
medical records; (3) discharge plans; (4) data collection; (5) qualified mental
retardation professional services; (6) behavior management; (7) use of physical
restraints; (8) prevention of abuse of residents; (9) reduction of accidents and injuries
to residents; (10) reports of abuse, accidents, and injuries; (11) staff supervision; (12)
preservice training of staff; (13) in-service training of staff; (14) sufficiency of
professional staff; (15) adaptive equipment; (16) functional and chronologically age
appropriate programming; (17) coordination between residential areas and training
program areas; and (18) inadequate space in training program areas. Jackson v. Fort
Stanton Hosp. & Training Sch., 757 F. Supp. 1243, 1316–17 (D.N.M. 1990).
5
Defendants were violating due process by failing to provide residents of the two
institutions with minimally adequate medical care; by failing “to provide reasonable
conditions of safety for the residents”; by physically restraining residents as a result
of understaffing; by failing to provide “minimally adequate training” to the residents;
and by failing to implement recommendations by interdisciplinary treatment teams
(Teams)—consisting of qualified professionals—that certain of these residents should
be placed in community settings. Id. at 1306–07, 1312.2
The district court ordered the parties to work together in good faith “to
formulate by agreement a plan to correct” the eighteen areas of deficiencies at the
two institutions. Id. at 1315. The court required the parties to formulate a “detailed
written policy to be adopted by and followed at each institution,” to designate
persons responsible at each institution for implementing the correction plans, to
describe the “strategies to be adopted by each institution” in order to ensure
successful implementation of the correction plans, and to develop a “detailed
timetable establishing deadlines by which specific components of the correction plan
2
The district court further concluded that Defendants violated class members’
substantive due process rights by “considering the present availability of community
services when determining whether to recommend the residents for community
placement.” Jackson v. Fort Stanton Hosp. & Training Sch. (Jackson II), 964 F.2d
980, 986 (10th Cir. 1992). Accordingly, the district court permanently enjoined
Defendants “from permitting [Teams] to take into account the availability or lack of
availability of community services in reaching a recommendation as to whether a
resident should be served in the community.” Id. On appeal, we reversed this portion
of the 1990 Order, holding that the district court erred in ruling that due process
required Defendants be enjoined from permitting Teams to consider the availability
of community services when making treatment decisions. Id. at 992.
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for each deficiency will be achieved.” Id. at 1316. The court also set September 10,
1991, as the deadline for “complete correction of all deficiencies.” Id. And the court
required the parties to describe the “[m]eans of assuring continued compliance with
appropriate standards after correction of the deficiencies has been achieved.” Id.
The court further ordered Defendants to prepare, by March 1, 1991, “a written
plan of transfer to an appropriate community setting for each resident whose [Team]
has recommended placement in a community setting.” Id. at 1317. The court urged
Plaintiffs to confer in good faith with Defendants to resolve any concerns Plaintiffs
may have with the proposed plans and to amend the plans accordingly. Id. at 1316–
17. The court also afforded Plaintiffs the opportunity to “file with the court and serve
on [D]efendants a statement of any remaining objections they may have to, and their
proposals for amending, any particular plan.” Id.
Over the next several years, the district court entered various remedial orders
and continued to oversee enforcement of those orders.3 See Jackson v. Los Lunas Ctr.
(Jackson III), No. CIV 87-839-JAP/KBM, 2016 WL 9777237, at *2 (D.N.M. June 14,
2016).
3
In late 1993, Plaintiffs moved to amend their complaint by interlineation to
assert a claim under the Americans with Disabilities Act (ADA). Plaintiffs’ proposed
claim asserted that Defendants violated the ADA by excluding class members with
disabilities from certain public programs and places of public accommodation and
service and by segregating class members from their communities by congregating
them in Fort Stanton and Los Lunas. In early 1994, the court granted Plaintiffs’
motion.
7
2. The 1994 Stipulation Concerning Fort Stanton
In 1994, New Mexico elected to close Fort Stanton by 1995 and to transfer all
of the residents at the institution to community-based services. In April 1994, the
parties filed a joint motion under Rule 60(b) and Rufo v. Inmates of Suffolk County
Jail, 502 U.S. 367 (1992), to modify portions of the district court’s 1990 Order, and
to terminate the 1990 Order’s requirements as to Fort Stanton upon closure of that
facility.
The district court found the parties’ joint motion “well-taken” and determined
that “the proposed modification is consistent with the rights of the classmembers.”
JA Vol. 3 at 582. As a result, the court relieved Defendants from making further
improvements to Fort Stanton. In doing so, the court stated, “[i]n the event that all
classmembers have been transferred from Fort Stanton to appropriate settings by
July 31, 1995, this Order and all portions of the [1990 Order] concerning corrections
of deficiencies . . . at Fort Stanton will hereby be terminated.” Id. at 584.
3. The 1997 Joint Stipulation on Disengagement (JSD) and Plan of Action
In October 1997, the parties presented the court with the JSD, a Plan of
Action, and a joint motion requesting the court’s approval of the JSD. According to
the parties’ stipulation, the JSD “does not seek a remedy for past violations of
Plaintiffs’ constitutional and statutory rights.” JA Vol. 7 at 1403. It is instead
designed to prevent future harm by ensuring that “Plaintiffs’ rights are not violated in
the community settings.” Id. at 1394. To that end, the JSD “defines the further
actions and requirements” that Defendants had to complete, “and the services,
8
supports, and benefits” that Defendants had to provide to class members, in order for
Defendants to comply with their obligations under the court’s existing orders. JA
Vol. 4 at 622.
The JSD acknowledges Defendants’ “substantial efforts to develop a non-
discriminatory service system for persons with developmental disabilities and to
provide appropriate community living arrangements and supports to classmembers.”
Id. at 620. And it states Defendants had made “efforts to reasonably accommodate
the residents of Fort Stanton and Los Lunas in community settings.” Id. at 621. As a
result of those efforts, Fort Stanton closed in March 1995 when all its residents had
transitioned to community settings, and Los Lunas closed in July 1997 when its last
resident transitioned to the community.
The JSD also includes a process for judicial disengagement of Defendants’
decree obligations. And it identifies the “Continued Improvement of Community
Services” as an area subject to disengagement. The Continuous Improvement
obligations address “a quality improvement approach that requires Defendants to
achieve a certain score on an annual audit.” Jackson III, 2016 WL 9777237, at *2
(internal quotation marks omitted). In the order denying Defendants’ Rule 60(b)(5)
motion that is the subject of this appeal, the district court recognized that Defendants
have achieved disengagement from fifty-six of the seventy Continuous Improvement
obligations. Id.The parties identified additional obligations in the Plan of Action, which
Defendant Department of Health developed “to [e]nhance the Community Service
9
System” for persons with developmental disabilities. JA Vol. 4 at 629. The Plan of
Action contains “a narrative, desired outcomes, and specific activities for thirteen
components of the community service system.”4 Id. Those thirteen components are
contained in the Plan of Action’s thirteen attached appendices. Two more appendices
were later added by consent of the parties.
After holding a fairness hearing, the district court issued, in December 1997,
an order approving the JSD and the Plan of Action. The court noted the JSD “does
not call for immediate dismissal of this lawsuit,” but instead “contemplates continued
judicial oversight that could extend well into the next [millennium].” Id. at 801. The
court further observed that the JSD “states the parties’ intention to fulfill most of the
activities described in the Plan of Action by December 31, 1998, but makes an
exception for certain requirements that may not be met until December 31, 2000.” Id.
4. The 2005 Stipulation to Resolve Motion for Noncompliance (Appendix A)
In May 2004, Plaintiffs moved for an order to show cause and for further
remedial relief to require Defendants to comply with the court’s December 1997
order approving the JSD and the Plan of Action. In June 2004, Plaintiffs moved for
an Order to Reengage Effective Case Management, Desired Outcome A, Under the
Plan of Action.
4
The thirteen components are (1) quality enhancement, (2) community
incident management system, (3) training, (4) management information systems, (5)
individual service planning, (6) case management, (7) behavioral services, (8) crisis
response, (9) sexuality, (10) supported employment, (11) assistive technology, (12)
medical services, and (13) regional offices.
10
In May 2005, the parties filed a Joint Stipulation on Agreed Actions to Comply
with Joint Stipulation of Disengagement and Plan of Action and to Resolve Pending
Motions to Show Cause and to Re-engage (2005 Stipulation). Attached to the 2005
Stipulation is “Appendix A[:] Agreed Actions to Address Contempt Motions”
(Appendix A). JA Vol. 10 at 1903. The 2005 Stipulation states that it “is intended to
obligate Defendants to take certain actions outside the Plan of Action as more
specifically outlined in Appendix A.” Id. at 1898. “[T]he actions identified in
Appendix A are intended to facilitate compliance with the JSD, to promote
completion of . . . Audit Recommendations, to further address Case Management
even though Plan of Action Desired Outcomes related to Case Management have
been previously disengaged by an order of the Court and to address certain aspects of
Vocational Rehabilitation.” Id. at 1898–99. The 2005 Stipulation clarifies that it is
not intended to change or modify the terms of the JSD, which remain in effect. And it
further states that Defendants “agree to implement all of the actions identified and
listed in Appendix A,” and that the parties agree some of the Appendix A actions
supplanted or modified activities listed in the Plan of Action. Id. at 1899.
Appendix A imposes 107 specific obligations on Defendants. Some of the
obligations are identified as “complete,” while many obligations were scheduled to
be completed by May 2006 or in 2007. Although those deadlines were not met,
Defendants represent that one third of the activities in Appendix A have been
disengaged. Jackson III, 2016 WL 9777237, at *4.
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The district court issued an order adopting the parties’ stipulation the same day
the parties submitted it.
5. The 2012 Order
In mid-July 2010, Plaintiffs filed another Motion for Further Remedial Relief
to Remedy Noncompliance. After full briefing, the district court denied the motion
without prejudice so Plaintiffs could refile after an evidentiary hearing scheduled for
June 2011.
On April 26, 2011—the day before the pretrial conference for the evidentiary
hearing—Defendants filed a Rule 60(b)(5) motion to terminate all remaining orders
and to conclude the court’s oversight. Defendants maintained that they have made
more than a reasonable effort to comply with the court’s orders, that they have
substantially complied with all existing orders, and that changed factual conditions
make continuing compliance substantially more onerous. The court held the motion
in abeyance and suspended briefing on it until the completion of the evidentiary
hearing, which occurred from June 13 to June 17, 2011. Jackson III, 2016 WL
9777237, at *4. The court later terminated the pending Rule 60(b)(5) motion without
deciding its merits. Id. at *4 n.12.
In November 2011, after the evidentiary hearing, Plaintiffs filed a Renewed
Motion for Further Remedial Relief to Remedy Noncompliance. Plaintiffs argued that
Defendants had failed to comply with the JSD, the Plan of Action, Appendix A, the
Rehabilitation Act, and the ADA (collectively, decrees). Plaintiffs also asked the
court to appoint a Jackson Compliance Administrator (Compliance Administrator) to
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oversee and ensure Defendants’ compliance. In October 2012, the district court
issued a 206-page, Findings of Fact and Conclusions of Law (2012 Order). The court
praised Defendants’ “innovations and progress,” but determined that Defendants
were still in substantial noncompliance with the decree obligations. JA Vol. 25 at
5303. Indeed, the court identified instances of noncompliance in the areas of health,
safety, and supported employment.
Based on the evidence before it, however, the court stated it “is unable to
conclude that Defendants have violated the Rehabilitation Act and ADA.” The court
explained:
To start with, the Court could not conclude that Defendants have
discriminated against severely disabled class members with respect to
the provision of health care services. In fact, the Court commends
Defendants for accommodating those severely disabled class members
who live in rural New Mexico by providing them meaningful access to
health care services . . . and for developing more and better health care
services directed to severely disabled persons. There is, however, a
question as to whether Defendants violated the Rehabilitation Act and
ADA by intentionally denying severely disabled class members
supported employment services equivalent to those received by less
severely disabled persons. Unfortunately, that question of disparate
treatment cannot be analyzed at this time, but must be further briefed.
On the other hand, the Court was unable to find a violation of the
Rehabilitation Act and ADA when severely disabled class members
choose to participate in segregated, congregate day services while less
severely disabled persons more often chose to engage in supported
employment.
Id. at 5304–05.
The court also noted that Defendants “are close to substantially complying
with [their] obligations,” and suggested that “the parties reconsider the descriptions
of the more broadly stated obligations and restate them in language that makes the
13
obligations achievable.” Id. at 5303–04. After all, “many of the obligations are
described in language that is more aspirational in nature than operational.” Id. at
5304. Finally, the court granted Plaintiffs’ request to appoint a Compliance
Administrator, who could “prod Defendants into final substantial compliance.”5 Id. at
5305.
6. The 2015 Revised Table IV
After the district court issued its 2012 Order, the parties were to develop a
consolidated remedial plan in the areas of health, safety, and supported employment
to address the identified violations. See Jackson III, 2016 WL 9777237, at *6. The
parties, counsel, the Compliance Administrator, and the court then worked together
for over two years before finalizing a consolidated plan. Id.In June 2015, the parties jointly filed the 2015 Revised Table IV—which is a
final list of objectives in the areas of health, safety, and supported employment—
along with evaluative components (or disengagement criteria) and projected
completion dates for each objective. In November 2015, the parties jointly filed a
Stipulated Agreement on Disengagement Process for Revised Table IV. Under the
5
After the court issued its 2012 Order, Plaintiffs moved to modify the 2012
Order with respect to their claims under the Rehabilitation Act and the ADA.
Plaintiffs asked the court to delete its findings and conclusions “on all discrimination
claims regarding severity of disability and segregation,” to strike those portions of
their November 2011 Renewed Motion for Remedial Relief to Remedy
Noncompliance based on the Rehabilitation Act and the ADA, and to vacate the
pertinent sections from its 2012 Order. JA Vol. 25 at 5308–09. The court denied the
motion to modify, but, on its own initiative, granted Plaintiffs leave to file a motion
seeking relief on their disparate treatment claim. Plaintiffs never filed a motion
seeking relief on that claim.
14
agreed-upon disengagement process, Defendants would submit a request for
disengagement of a specific decree objective to the Compliance Administrator, who
would then make a written “determination” on whether the disengagement criteria
had been met. If the Compliance Administrator did not agree that the criteria had
been met, then Defendants could withdraw their request for a determination or pursue
a disengagement motion with the court.
The court noted that, as of May 2016, the Compliance Administrator had
issued approximately three determinations on Defendants’ requests, with roughly 197
decree obligations remaining for which the Compliance Administrator had not issued
preliminary determinations. Jackson III, 2016 WL 9777237, at *7 n.20. The court
also stated Revised Table IV did not replace or modify existing decree obligations
that were not the subject of Plaintiffs’ Renewed Noncompliance Motion and the
court’s 2012 Order. Id. at *8. Thus, Defendants must demonstrate substantial
compliance with the earlier outstanding decree obligations, in addition to those listed
in Revised Table IV. Id. The court estimated that, between the JSD, the Plan of
Action, Appendix A, and Revised Table IV, Defendants must still show substantial
compliance with approximately 307 decree obligations. Id. at *9.
B. District Court’s Denial of Defendants’ Rule 60(b)(5) Motion
In August 2015, Defendants filed their current motion under Rule 60(b)(5),
arguing that factual circumstances have changed to the extent that the district court
should vacate all remaining orders and conclude its oversight entirely. Defendants
identified four changed factual circumstances they claim warrant vacatur of all
15
pertinent decrees and termination of the case. First, Defendants argued that their
decree obligations have increased in number and complexity to the point they will
never be able to satisfy the “labyrinth of obligations” that are ever-changing, ever-
increasing, and not subject to objective measurement. Jackson III, 2016 WL
9777237, at *11.
Second, Defendants argued that some of their obligations are now outdated:
1) the JSD provisions about community practice improvements at [Los
Lunas], which are no longer relevant as that institution closed in 1997;
2) the JSD formulate for disengagement of the Continuous Improvement
outcomes, which is “convoluted,” “confusing,” and “unworkable”;
3) the JSD Continuous Improvement obligations that “are no longer
programmatically sound and are no longer the desire” of [class
members],” and that are not relevant to the present-day needs of [class
members]; 4) the 1997 Plan of Action obligations that have been
“morphed into new requirements” under Revised Table IV and that are
“long detached from remedying the original constitutional issues”; and
5) Appendix A obligations that consist of vague and aspirational
language, making disengagement impossible.
Id. at *12 (citations omitted).
Third, while conceding they have not substantially complied with all their
decree obligations, Defendants maintained they have remedied all constitutional
violations. Id. They argued they have thus attained the “objects” of the consent
decrees, and they have corrected all eighteen areas of deficiencies the district court
identified in its 1990 Order. Id. at 12–13. And if more is required, they insisted, this
case will remain a never-ending process of continuing quality control. Id. at 12.
Fourth, Defendants argued that the increased litigation costs inhibit New
Mexico’s ability to fund other important programs. Id. at *12–13. For instance, New
16
Mexico has spent more than $50 million related to this litigation in the last eight
years. Id. at *12. And, as of 2009, the average yearly cost to provide services to class
members had risen from $67,290.00 to $135,535.00 per class member, while New
Mexico’s $32,992.00 per capita income was the ninth lowest in the United States. Id.
at *13.
Based on these four changed circumstances, Defendants contended that notions
of federalism supported their request for relief. Indeed, they argued that federalism
concerns are heightened here because the consent decrees have the effect of dictating
state and local budget priorities and improperly depriving state officials of their
designated legislative and executive powers. Id. at *13.
In an order issued in June 2016, the court ruled that Defendants had not met
their burden to show the existence of a significant change in fact warranting vacatur
of all pertinent orders and termination of the case. First, the court stated that “while
Defendants’ obligations are onerous,” Defendants never identified when these
asserted changed factual circumstances occurred; indeed, “[s]ome of the complained
about developments have been happening for years.” Id. at *14.
Next, the court concluded that Defendants have not shown that the objects of
the pertinent decrees have been attained. While the court recognized that the decrees
were designed to restore class members to the position they would have occupied
absent violations of federal law, the court stated that the “more specific ‘essential
purposes’” of those decrees “are to provide class members with adequate health care,
a reasonably safe environment, and supported employment opportunities.” Id.
17(quoting 2012 Order at 33). And based on Defendants’ concessions that they have not
substantially complied with all the decree obligations, the court concluded that
Defendants “have not fulfilled the essential purposes of the pertinent decrees.” Id.Further, the court found Defendants’ assertion that they long ago remedied all
constitutional violations to be “somewhat misleading.” Id. at *14–15. The court
explained that the decree obligations in the JSD, the Plan of Action, and Appendix A
“all flowed from [its] original findings of [federal] violations in 1990.” Id. at *15.
And it noted that Revised Table IV was developed in response to the 2012 findings of
approximately 100 decree violations. Id. The court stated that it “correlated its
specific findings of violations in 2012 with enumerated requirements in the JSD, Plan
of Action, and Appendix A.” Id. “Stated differently, the October 2012 violations
evolved from compliance issues concerning obligations that first appeared in the
JSD, Plan of Action, and Appendix A that Defendants had not yet satisfied.” Id.The court also took issue with Defendants’ characterization of the 2012 Order
as finding no ongoing violations of federal law. The court clarified that it had made
no findings in its 2012 Order on continuing violations of federal law. Id. Although
Plaintiffs had argued that Defendants violated the Rehabilitation Act and the ADA,
the court ruled then that “there was not sufficient evidence of discrimination under”
either Act. Id. But the court explained that it was not asked, and thus made no
findings on, whether Defendants otherwise continued to violate class members’
constitutional rights. Id. With respect to the 2016 motion to terminate oversight, the
district court likewise did not resolve the question of current compliance with federal
18
law, stating it “is not in the position to assess, and, therefore, cannot conclude that
Defendants are no longer violating constitutional or federal law.” Id. at *16. But
“[b]ecause all of [the] outstanding obligations grew out of the Court’s 1990 Order
and/or the related 2012 findings of violations,” the district court concluded that
“Defendants have not convinced the Court that they have satisfied the essential
purposes of the JSD, Plan of Action, Appendix A, and Revised Table IV.” Id. at 16.
The court then rejected Defendants’ claim that principles of federalism
dictated the termination of oversight. The court acknowledged that the Supreme
Court, in Horne v. Flores, 557 U.S. 433 (2009), stated that federalism concerns are
heightened when a consent decree has the effect of dictating state budget allocations.
Id. And it conceded that “increasing fees and costs associated with this litigation are
detrimental to the State’s interest.” Id. But the court reasoned that “first and
foremost,” the Horne Court asked if the State had fulfilled its obligations under
federal law and achieved the objectives of the pertinent order. Id. The district court
answered that question in the negative, stating: “Unlike Horne, Defendants have not
shown that they have fulfilled their outstanding obligations, ‘by other means.’” Id. at
*17 (quoting Horne, 557 U.S. at 439).
Ultimately, the court concluded that Defendants “have not come close to
showing that vacatur of all of the orders and decrees is suitably tailored to the
proposed changed circumstances.” Id. Nor have Defendants “demonstrated that a
durable remedy is in place sufficient to justify vacatur of all of the Court’s orders.”
Id. at *18. In other words, Defendants had not shown “that it is unlikely that the
19
prohibited conditions or actions will recur.” Id. (quoting LaShawn A. ex rel. Moore v.
Fenty, 701 F. Supp. 2d 84, 111 (D.D.C. 2010), aff’d sub nom. LaShawn A. ex rel.
Moore v. Gray, 412 F. App’x 315 (D.C. Cir. 2011)). The court therefore denied the
motion.
II. ANALYSIS
On appeal, Defendants assert that the district court abused its discretion when
it denied their Rule 60(b)(5) motion. Defendants contend significant changes in
factual circumstances warrant termination of all consent decrees and of the court’s
oversight. Specifically, they claim that compliance with the decrees has become
substantially more onerous, the decrees have become unworkable due to unforeseen
obstacles, and continued enforcement of the decrees would be detrimental to the
public interest. They also argue that the district court misapplied Horne by requiring
them to show attainment of specific essential purposes identified by the district court
rather than compliance with federal law.
A. Appellate Jurisdiction
Before addressing the merits, we must first resolve the parties’ dispute about
whether the district court’s June 2016 order is a final, appealable order under 28
U.S.C. § 1291. We have appellate jurisdiction over “final decisions of the district
courts of the United States.” 28 U.S.C. § 1291. “A ‘final decision’ is ordinarily one
that ‘ends the litigation on the merits and leaves nothing for the court to do but
execute the judgment.’” Hayes Fam. Tr. v. State Farm Fire & Cas. Co., 845 F.3d
997, 1003 (10th Cir. 2017) (quoting Catlin v. United States, 324 U.S. 229, 233
20
(1945)); see also D&H Marketers, Inc. v. Freedom Oil & Gas, Inc., 744 F.2d 1443,
1444 (10th Cir. 1984) (en banc) (stating that § 1291 “has consistently been held to
require the termination of all matters as to all parties and causes of action before an
appeal may be taken”). “[P]ut differently,” a final decision is “one by which the
district court ‘disassociates itself from a case.’” McClendon v. City of Albuquerque,
630 F.3d 1288, 1292 (10th Cir. 2011) (quoting Swint v. Chambers Cty. Comm’n, 514
U.S. 35, 42 (1995)). Although “a final judgment is the paradigmatic ‘final decision’
appealable under § 1291,” not “every case with a final judgment in it is appealable.”
Id. Instead, “every post-judgment decision must be assessed on its own terms to
determine whether it is a final decision amenable to appeal.” Id. at 1293.
As relevant here, “[t]he general rules governing our review of a district court’s
order granting or denying a Rule 60(b) motion are fairly well settled.” Stubblefield v.
Windsor Capital Grp., 74 F.3d 990, 993 (10th Cir. 1996). “We have jurisdiction
under 28 U.S.C. § 1291 to reach the merits of an appeal from a denial of a Rule 60(b)
motion, provided the ruling or judgment the Rule 60(b) motion challenged was a final
decision of the district court.” Id. (internal quotation marks omitted); see also
McClendon, 630 F.3d at 1294 (recognizing that a district court’s denial of a Rule
60(b) motion “usually qualif[ies] as [a] final decision[] for purposes of § 1291
because [it] usually signal[s] that the district court’s business is done, that it has
disassociated itself from the case, [and] that we may act without stepping on the
district court’s toes”).
21
Here, Defendants moved under Rule 60(b) to vacate all pertinent orders—the
JSD, the Plan of Action, Appendix A, and Revised Table IV—and to terminate this
case. The parties and district court agree that the pertinent orders are consent decrees.
See Jackson III, 2016 WL 9777237, at *9. And all agree that consent decrees are, in
effect, final decisions within the meaning of Rule 60(b). See Johnson v. Lodge #93 of
Fraternal Order of Police, 393 F.3d 1096, 1101 (10th Cir. 2004) (“A consent decree
is a negotiated agreement that is entered as a judgment of the court. Consent decrees
. . . have characteristics both of contracts and of final judgments on the merits.”
(internal quotation marks omitted)); see also V.T.A., Inc. v. Airco, Inc., 597 F.2d 220,
224 (10th Cir. 1979) (noting that when “the underlying judgment was by consent [it]
has the same force and effect for [Rule] 60(b) purposes as a judgment rendered on the
merits following trial”). Because the pertinent orders are consent decrees that are
final orders under Rule 60(b), it necessarily follows that the district court’s June 2016
order denying relief under Rule 60(b)(5) from those consent decrees is also final and
appealable under § 1291. See Jeff D. v. Kempthorne, 365 F.3d 844, 850 (9th Cir.
2004) (“Because consent decrees are considered final judgments we have jurisdiction
to review the claims raised in the motion to vacate the consent decrees pursuant to 28
U.S.C. § 1291.” (citation omitted)).
Plaintiffs disagree. Relying on McClendon, they argue the district court’s June
2016 order is not a final, appealable order because it signals that more litigation is on
the way. Plaintiffs believe future litigation will occur when they inevitably file
another motion for remedial relief to remedy Defendants’ noncompliance with the
22
consent decrees. In other words, the June 2016 Order is not final because the district
court will continue to monitor Defendants’ compliance with its prior consent decrees
(i.e., the JSD, the Plan of Action, Appendix A, and Revised Table IV).
But under McClendon, that the district court may have to continue to oversee
Defendants’ compliance with the consent decrees is not enough to strip the June 2016
order of its status as a final decision. Instead, the relevant inquiry is whether the June
2016 order will result in more litigation on the merits in the district court. See
McClendon, 630 F.3d at 1292–94. If the June 2016 order “ensures litigation on the
merits will continue in the district court,” then it is not final under § 1291. Id. at
1293. But if it does not, and it is otherwise a denial of a Rule 60(b) motion
challenging a final decision of the district court, then it is a final decision under
§ 1291. See id. at 1293–94; Jeff D., 365 F.3d at 850.
Under this formulation, the June 2016 order is a final, appealable decision.
First, the June 2016 order does not signal that more litigation on the merits is on the
way. In fact, the 1990 order, which followed a lengthy trial, resolved the merits of the
litigation, and the district court retained jurisdiction only to oversee implementation
of the ensuing consent decrees. Second, as discussed above, the 2016 order denied a
Rule 60(b) motion challenging several final decisions of the district court.
To be sure, the June 2016 order does not result in the district court dissociating
itself from the case. Much the opposite, it means the district court will, as it has since
it issued the 1990 Order, continue to oversee Defendants’ compliance with the
pertinent consent decrees. But this fact alone does not deprive us of jurisdiction.
23
After all, each decree was a final, appealable decision under § 1291, even though the
district court continued to oversee each decree’s implementation. See Johnson, 393
F.3d at 1101; V.T.A., 597 F.2d at 224. If the district court’s continued oversight
would not have divested us of appellate jurisdiction then, it should not do so now.
In sum, the finality test asks whether the ruling challenged in the denied Rule
60(b) motion was “a final decision of the district court.” Stubblefield, 74 F.3d at 993.
Here, that test is met. The June 2016 order is a final, appealable order and, thus, we
have appellate jurisdiction under § 1291.
B. The Rule 60(b)(5) Motion
We now turn to Defendants’ argument that termination of all pertinent orders
and of this case is appropriate due to significant changes in factual circumstances.
Our analysis proceeds in three parts. First, we discuss the relevant standard of
review. Second, we outline the law governing Rule 60(b)(5) motions in institutional
reform litigation. Third, we apply that standard to the facts of this case.
1. Standard of Review
We review a district court’s denial of a Rule 60(b) motion for an abuse of
discretion. Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000). In
the Rule 60(b) context, we review the district court’s ruling only “to determine if a
definite, clear or unmistakable error occurred below.” Zurich N. Am. v. Matrix Serv.,
Inc. 426 F.3d 1281, 1289 (10th Cir. 2005) (internal quotation marks omitted). “A
reviewing court may reverse only if it finds a complete absence of a reasonable basis
and is certain that the decision is wrong.” Id. (internal quotation marks omitted). “A
24
clear example of an abuse of discretion exists where the trial court fails to consider
the applicable legal standard or the facts upon which the exercise of its discretionary
judgment is based.” Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997). An
appeal from the denial of a Rule 60(b) motion raises for our review only the district
court’s order denying the motion, and not the underlying judgment itself. Servants of
Paraclete, 204 F.3d at 1009.
2. Legal Standard
A Rule 60(b) motion for relief from judgment is an extraordinary remedy and
may be granted only in exceptional circumstances. Id.; see V.T.A., Inc., 597 F.2d at
223 n.7 (10th Cir. 1979). The motion may not be used as a substitute for direct
appeal. See Servants of Paraclete, 204 F.3d at 1009.
Rule 60(b)(5) permits relief from a judgment or order if “[1] the judgment has
been satisfied, released, or discharged; [2] it is based on an earlier judgment that has
been reversed or vacated; or [3] applying it prospectively is no longer equitable.”
Fed. R. Civ. P. 60(b)(5) (emphasis added). Use of the disjunctive “or” demonstrates
“that each of the provision’s three grounds for relief is independently sufficient and
therefore that relief may be warranted even if [a movant has] not ‘satisfied’ the
original order.” Horne v. Flores, 557 U.S. 433, 454 (2009). Defendants seek relief on
the ground that ongoing enforcement of the pertinent decrees is no longer equitable.
We now turn to a discussion of the limits of federal involvement in
institutional reform litigation and of the two leading Supreme Court cases addressing
25
the no-longer-equitable basis for Rule 60(b)(5) relief: Rufo v. Inmates of Suffolk
County Jail, 502 U.S. 367 (1992), and Horne v. Flores, 557 U.S. 433 (2009).
a. Consent Decrees Generally
A consent decree “entered in federal court must be directed to protecting
federal interests.” Frew v. Hawkins, 540 U.S. 431, 437 (2004). The consent decree
“must spring from, and serve to resolve, a dispute within the court’s subject-matter
jurisdiction.” Id. (citing Firefighters v. Cleveland, 478 U.S. 501, 525 (1986)).
Equity requires a federal court fashioning and implementing a consent decree
to focus on three factors. See Milliken v. Bradley, 433 U.S. 267, 280 (1977). First, a
federal consent decree must “be remedial in nature” and thus “designed as nearly as
possible to restore the victims of [illegal] conduct to the position they would have
occupied in the absence of such conduct.” Id. at 280 (internal quotation marks
omitted).
Second, the nature and scope of the remedy provided by a federal consent
decree depends on the nature and scope of the federal-law violation. Id. at 280, 282.
This means a “federal-court decree[] must directly address and relate to the [federal-
law] violation itself.” Id. at 282. And it must be “tailored to cure the condition that
offends” federal law. Id. (internal quotation marks omitted). But a decree exceeds
appropriate limits if it is “aimed at eliminating a condition that does not violate
[federal law] or does not flow from such a violation.” Id.Third, federal courts “must take into account the interests of state and local
authorities in managing their own affairs,” consistent with the demands of federal
26
law. Id. at 280–81. Indeed, principles of federalism require that federal courts give
“significant weight to the views of government officials,” and that “state officials
with front-line responsibility for administering [a state program] be given latitude
and substantial discretion.” Frew, 540 U.S. at 442 (internal quotation marks omitted).
Importantly, federal consent decrees are temporary solutions that may be kept
in place only as long as necessary to cure an unlawful condition. See Missouri v.
Jenkins, 515 U.S. 70, 88-89 (1995). The Supreme Court has cautioned that federal
courts should not continue their “oversight of state programs for long periods of time
. . . absent an ongoing violation of federal law.” Frew, 540 U.S. at 441. Thus, a
“federal court must exercise its equitable powers to ensure that when the objects of
the decree have been attained, responsibility for discharging the State’s obligations is
returned promptly to the State and its officials.” Id. at 442. Keeping a consent decree
in place any longer than necessary to assure compliance with federal law risks
violating principles of federalism and “improperly depriv[ing] future officials of their
designated legislative and executive powers.” Id. at 441; see also John B v. Emkes,
710 F.3d 394, 398 (6th Cir. 2013) (stating that a consent decree “may remain in force
only as long as it continues to remedy a violation of federal law”); United States v.
Washington, 573 F.3d 701, 710 (9th Cir. 2009) (“The [Supreme] Court has repeatedly
reminded us that institutional reform injunctions were meant to be temporary
solutions, not permanent interventions, and could be kept in place only so long as the
violation continued.”).
27
b. Rufo v. Inmates of Suffolk County Jail
In Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 372 (1992), pretrial
detainees held at a county jail in Massachusetts sued the county, state, and related
entities, claiming they were being held under unconstitutional conditions. The district
court ruled that conditions at the jail were constitutionally deficient; thus, the district
court enjoined the state defendants from, among other things, housing two or more
inmates in a single cell. Id. at 372–73. When conditions at the jail did not improve,
the district court ordered the state defendants to renovate another existing facility to
serve as a substitute detention center. Id. at 373–74. The First Circuit affirmed and
ordered that the jail be closed unless the state defendants timely presented a plan to
create a constitutionally adequate facility for the pretrial detainees. Id. at 374.
Days before the deadline to present a plan for a new facility, the state
defendants submitted a plan to create a substitute facility with only single-occupancy
cells, and the district court entered a consent decree obligating the state defendants to
construct a facility containing 309 single occupancy rooms. Id. at 374–75. When the
inmate population outpaced population projections, the parties moved the district
court to modify the decree to provide a facility with an increased number of cells. Id.at 375–76. The district court granted the modification on the condition that “single-
cell occupancy is maintained” under the new plan for the facility. Id. at 376.
The state defendants again moved to modify the consent decree, this time to
allow for double bunking of male detainees in roughly one-third of the cells in the
new jail. Id. The state defendants attributed the need for a second modification to a
28
further increase in the population of pretrial detainees. Id. The state defendants
argued that the continued increase in the pretrial detainee population—a change in
fact—coupled with a change in law regarding the constitutionality of double bunking
pretrial detainees, see Bell v. Wolfish, 441 U.S. 520 (1979), supported the requested
modification. Rufo, 502 U.S. at 376. The district court denied the motion, in part,
because the state defendants failed to make a “clear showing of [a] grievous wrong
evoked by new and unforeseen conditions.” Id. at 377 (quoting United States v. Swift
& Co., 286 U.S. 106, 119 (1932)). The district court explained that modification
would violate a primary purpose of the decree—to provide for a separate cell for each
detainee—although it never decided whether double celling would be
unconstitutional. Id. at 377. The First Circuit affirmed. Id.
The Supreme Court granted certiorari and remanded so the lower courts could
apply the proper standard to modification requests under Rule 60(b)(5). See id. at
393. The Court began by emphasizing the need for flexibility when considering a
motion for modification of a consent decree in institutional reform litigation. Id. at
380–83. After all, consent decrees in such cases “often remain in place for extended
periods of time, [meaning] the likelihood of significant changes occurring during the
life of the decree is increased.” Id. at 380. The Court further explained that the
experience of the Courts of Appeals “demonstrated that a flexible approach is often
essential to achieving the goals of reform litigation,” as the Courts of Appeals
observed that consent decrees frequently “reach beyond the parties involved directly
29
in the suit and impact [] the public’s right to the sound and efficient operation of its
institutions.” Id. at 381 (internal quotation marks omitted).
The Court then outlined what a movant must show when seeking modification
of a consent decree under Rule 60(b)(5). The party seeking modification of a consent
decree bears the burden of showing that “a significant change either in factual
conditions or in law” warrants revision of the decree. Id. at 384. Changed factual
circumstances may warrant modification of a consent decree when the changed
circumstances “make compliance with the decree substantially more onerous,” when
“a decree proves to be unworkable because of unforeseen obstacles,” or when
“enforcement of the decree without modification would be detrimental to the public
interest.” Id. at 384. A party need not show that a change in fact was both unforeseen
and unforeseeable. Id. at 385.
Conversely, a court should deny a party’s request for a modification under
Rule 60(b)(5) if the party merely establishes that “it is no longer convenient [for the
moving party] to live with the terms of a consent decree.” Id. at 383. Furthermore, a
modification should be denied “where a party relies upon events that actually were
anticipated at the time it entered into a decree.” Id. at 385. The Court explained:
If it is clear that a party anticipated changing conditions that would
make performance of the decree more onerous but nevertheless agreed
to the decree, that party would have to satisfy a heavy burden to
convince a court that it agreed to the decree in good faith, made a
reasonable effort to comply with the decree, and should be relieved of
the undertaking under Rule 60(b).
Id.
30
If a party meets its burden of establishing a change in fact that warrants
modification of a consent decree, the district court should examine “whether the
proposed modification is suitably tailored to the changed circumstance.” Id. at 391.
This analysis focuses on whether the proposed modification “is tailored to resolve the
problems created by the change in circumstances.” Id. In performing this analysis, a
court must bear in mind that the public interest and principles of federalism require a
federal court to defer to state or local government officials and to consider a state or
local government’s financial constraints. Id. at 392. But a modification “must not
create or perpetuate a constitutional violation.” Id. at 391. Additionally, in accord
with the requirement that a modification be tailored to the change in circumstances,
the existence of a change in circumstances often will not justify a modification to the
consent decree that lowers the terms of the consent decree to “the constitutional
floor.” Id. In this sense, a court modifying a consent decree may “do no more” to the
consent decree than is warranted by the change in circumstances and “should not
‘turn aside to inquire whether some of the provisions of the decree . . . could have
been opposed with success if the defendants had offered opposition.’” Id. at 391-92
(quoting United States v. Swift & Co., 286 U.S. 106, 116-17 (1932)). Thus, even
where a change in circumstances occurs, the plaintiff will retain those benefits
secured under the consent decree that are not impugned by the change in
circumstances. See id.The Court then instructed the district court on remand to first consider whether
the purported change in factual circumstances—the upsurge in the pretrial detainee
31
population—was foreseen by the state defendants. Id. at 385. But the Court also
advised that the district court erred by concluding that modification was
inappropriate simply because it would not provide for a separate cell for each
detainee. The Court explained:
Even if the decree is construed as an undertaking by [the state
defendants] to provide single cells for pretrial detainees, to relieve
[them] from that promise based on changed conditions does not
necessarily violate the basic purpose of the decree. That purpose was to
provide a remedy for what had been found, based on a variety of factors,
including double celling, to be unconstitutional conditions obtaining in
the [jail]. If modification of one term of a consent decree defeats the
purpose of the decree, obviously modification would be all but
impossible. That cannot be the rule. The District Court was thus in error
in holding that . . . modification of the single cell requirement was
necessarily forbidden.
Id. at 387.
c. Horne v. Flores
In Horne v. Flores, 557 U.S. 433, 439 (2009), the Supreme Court was again
tasked with determining whether the lower courts applied the correct standard in
denying a Rule 60(b)(5) motion. There, a class of English Language-Learner (ELL)
students and their parents in Arizona sued the state for violating the Equal
Educational Opportunities Act of 1974 (EEOA), which requires a state “to take
appropriate action to overcome language barriers that impede equal participation by
its students in its instructional programs.” Id. at 438–39. After a trial, the district
court concluded that “defendants were violating the EEOA because the amount of
funding the State allocated for the special needs of ELL students (ELL incremental
32
funding) was arbitrary and not related to the actual funding needed to cover the costs
of ELL instruction.” Id. at 441.
Over the next several years, the district court entered various additional orders
and injunctions aimed at improving the state’s ELL incremental funding. Id. For
instance, the court ordered the state to “prepare a cost study to establish the proper
appropriation to effectively implement ELL programs.” Id. (internal quotation marks
omitted). And it later required the state to, within ninety days of the order’s issuance,
“appropriately and constitutionally fund the state’s ELL programs taking into account
the [court’s] previous orders.” Id. After the state failed to comply with these orders,
the district court held the state in contempt and imposed a fine for every day until the
state came into compliance. Id. at 442.
After accruing over $20 million in fines, the state legislature passed HB 2064,
a bill that was designed “to implement a permanent funding solution to the problems
identified” by the district court. Id. The Governor allowed HB 2064 to become law
without her signature, and the state presented it to the district court for approval. Id.
at 443. Because the Governor did not approve of HB 2064’s funding provisions, two
members of the state legislature intervened to support the bill. Id. Intervenors then
moved to “purge” the district court’s contempt order in light of HB 2064 and, in the
alternative, for relief under Rule 60(b)(5) based on changed circumstances. Id. The
district court denied the Rule 60(b)(5) motion because HB 2064 “did not establish a
funding system that rationally relates funding available to the actual costs of all
elements of ELL instruction.” Id. at 444 (internal quotation marks omitted). The
33
Ninth Circuit affirmed, stating that “relief would be appropriate only if petitioners
had shown either that there are no longer incremental costs associated with ELL
programs in Arizona or that Arizona had altered its funding model.” Id. at 445(internal quotation marks omitted).
The Supreme Court reversed. The Court first reiterated that a party may move
to modify or vacate an order under Rule 60(b)(5) if “‘a significant change either in
factual conditions or in law’ renders continued enforcement ‘detrimental to the public
interest.’” Id. at 447 (quoting Rufo, 502 U.S. at 384). “[O]nce a party carries this
burden, a court abuses its discretion when it refuses to modify an injunction or
consent decree in light of such changes.” Id. at 447–49 (internal quotation marks
omitted).
The Court then stressed that Rule 60(b)(5) serves an important function in
institutional reform litigation for three reasons. Id. First, injunctions and consent
decrees in such cases often remain in place for many years, “and the passage of time
frequently brings about changed circumstances” (e.g., “changes in the nature of the
underlying problem” and “new policy insights”) “that warrant reexamination of the
original judgment.” Id. at 448. Second, injunctions and decrees in reform cases tend
to “raise sensitive federalism concerns” because such cases often “involve[] areas of
core state responsibility.” Id. And those federalism concerns “are heightened when
. . . a federal court decree has the effect of dictating state or local budget priorities.”
Id.34
Recognizing that states have limited resources, the Court expressed sensitivity
toward the fact that “[w]hen a federal court orders that money be appropriated for
one program, the effect is often to take funds away from other important programs.”
Id. Third, seemingly endless injunctions and decrees in these types of cases
commonly “bind state and local officials to the policy preferences of their
predecessors and may thereby ‘improperly deprive future officials of their designated
legislative and executive powers.’” Id. at 449 (quoting Frew, 540 U.S. at 441).
Successor officials may bring new insights and solutions to ongoing “problems of
allocating revenues and resources,” but overbroad or outdated decrees may inhibit
their ability to respond to those problems and fulfill their duties as democratically-
elected officials. Id. In sum, a long-lasting and unmodified consent decree not only
raises serious federalism concerns but it may also restrain the opportunities for the
class protected by the decree because an overbroad and unyielding decree limits
financial resources available to governments for the implementation of new
innovations and policies that may serve the needs of the protected class better than
the requirements embodied in the decree.
For the foregoing reasons, courts must take a flexible approach to motions
under Rule 60(b)(5) where the moving party seeks relief from a long-lasting decree.
Id. at 450. This flexible approach “seeks to return control to state and local officials
as soon as a violation of federal law has been remedied.” Id. at 451. To that end,
courts must be wary “that ‘federal-court decrees exceed appropriate limits if they are
aimed at eliminating a condition that does not violate federal law or does not flow
35
from such a violation.’” Id. at 450 (quoting Milliken, 433 U.S. at 282). “‘If a federal
consent decree is not limited to reasonable and necessary implementations of federal
law,’ it may ‘improperly deprive future officials of their designated legislative and
executive powers.’” Id. (quoting Frew, 540 U.S. at 441).
Accordingly, “a critical question in [the] Rule 60(b)(5) inquiry is whether the
objective of the [challenged decree] has been achieved.” Id. (citing Frew, 540 U.S. at
442). “If a durable remedy has been implemented, continued enforcement of the
order is not only unnecessary, but improper.” Id. (citing Milliken, 433 U.S. at 282).
Applying these standards, the Court in Horne concluded that the Ninth Circuit
erred in two ways. First, instead of applying a flexible approach, the Ninth Circuit
“used a heightened standard that paid insufficient attention to federalism concerns.”
Id. at 451. Based on the federalism concerns, application of a flexible approach was
“critical.” Id. at 452. The Court instructed that application of the flexible approach
requires that “‘[w]hen the objects of the decree have been attained’—namely, when
[compliance with federal law] has been achieved—‘responsibility for discharging the
State’s obligations must be returned to the State and its officials.’” Id. (quoting Frew,
540 U.S. at 442).
Second, the Court held that instead of “inquiring broadly into whether changed
conditions in [the schools] provided evidence of an ELL program that complied with
the EEOA,” id. at 451, the Ninth Circuit performed an inquiry that was “too narrow,”
“focus[ing] almost exclusively on the sufficiency of incremental funding,” id. at 452.
But the narrow inquiry—focusing on whether a prior judgment has been satisfied—
36
addresses only one of the bases for relief under Rule 60(b)(5) and fails to consider
whether relief is warranted because “applying [a judgment] prospectively is no longer
equitable.” Id. at 454. For purposes of the equity basis for modification, the Ninth
Circuit’s narrow inquiry also overlooked the possibility that specific items in an
initial decree may, with the passage of time and changing circumstances, no longer
be the only way, or even the best way, to attain the objects of the decree and assure
compliance with federal law. See id. at 447–48, 451–54.
To determine whether relief was proper under the equity basis for
modification, the Ninth Circuit “needed to ascertain whether ongoing enforcement of
the original order was supported by an ongoing violation of federal law.” Id. at 454
(citing Milliken, 433 U.S. at 282); see also id. at 468 (repeating that a proper Rule
60(b)(5) inquiry should ask whether the school district “is now providing equal
educational opportunities to ELL students”).
The Court explained that while the Ninth Circuit focused on ELL incremental
funding, “funding is simply a means [of complying with the EEOA], not the end
(here, the EEOA).” Id. at 454–55. By requiring the state “to demonstrate ‘appropriate
action’ [mandated by the EEOA] through a particular funding mechanism, the Court
of Appeals improperly substituted its own educational and budgetary policy
judgments for those of the state and local officials to whom such decisions are
properly entrusted.” Id. at 455. Stated otherwise, the Ninth Circuit should have
“consider[ed] the broader question whether, as a result of important changes during
37
the intervening years, the State was fulfilling its obligation under the EEOA by other
means.” Id. at 439.
The Court then remanded for the district court to make “up-to-date” findings
and to consider whether four changed circumstances advanced by the defendants
warranted releasing the state from the earlier judgment. See id. at 469–70.
d. Applicability of Horne & Tension between Horne and Rufo
As opposed to the present case that features a Rule 60(b)(5) motion seeking a
modification of a consent decree, Horne involved a Rule 60(b)(5) motion seeking a
modification of a court-issued injunction, as well as additional orders crafted by the
district court. See id. at 441. Lower courts have reached different conclusions
regarding the force of Horne in the context of a Rule 60(b)(5) motion seeking
modification of a consent decree. See Burt v. Cty. of Contra Costa, 2014 WL 253010,
at *18–19 (N.D. Cal. Jan. 22, 2014) (discussing opposing conclusions by district
courts that have analyzed extent of Horne’s applicability to consent decrees); see also
Evans v. Fenty, 701 F. Supp. 2d 126, 165–67, 170–71 (D.D.C. 2010) (questioning
applicability of Horne to modification of consent decree and relying primarily on
inquiry established in Rufo and Frew when evaluating propriety of enforcement
beyond minimum requirements of federal law). The Sixth Circuit, however, did not
express any hesitation regarding applying Horne to a Rule 60(b)(5) motion seeking
modification of a consent decree. See John B., 710 F.3d at 411–14. In fact, the Sixth
Circuit, in John B., concluded that where a defendant subject to a consent decree in
institutional reform litigation has implemented a durable remedy to cure the federal
38
violation underlying the decree, Horne’s admonition that continued enforcement of
the decree is “improper” controls and requires vacatur of the consent decree. Id. at
411–13.
Three considerations compel us to join the Sixth Circuit’s apparent conclusion
that Horne fully applies to a Rule 60(b)(5) motion seeking modification of a consent
decree. First, while the parties may form the essential terms of a consent decree, as
we noted earlier when discussing our jurisdiction over this appeal, a district court’s
order approving the consent decree is tantamount to a final judgment on the merits.
See supra 22 (citing Johnson, 393 F.3d 1096, 1101 (10th Cir. 2004)).
Second, when discussing the proper inquiries for evaluating a Rule 60(b)(5)
motion in institutional reform litigation, Horne uses “consent decree” or “decree”
interchangeably with injunction and court order even though Horne involved
requested modifications to an injunction and several court orders but did not involve
a consent decree. See Horne, 557 U.S. at 448–50. From this, we glean that the Court
considers a consent decree and an injunctive order equivalent for purposes of
evaluating a Rule 60(b)(5) motion for modification. And had the Court intended to
limit Horne to institutional reform litigation involving only injunctions and court
crafted orders, it could have easily done so explicitly. The Court, however, did not so
limit its holding, and the plain language of Horne supports the conclusion that the
decision applies with equal force to all institutional reform cases, including those
cases featuring consent decrees.
39
Third, the same federalism concerns at the heart of Horne are present in
institutional reform cases featuring consent decrees. Admittedly, the acquiescence of
state or local governmental officials to the terms of a consent decree might diminish
federalism concerns at the inception of the decree. But where, as here, a consent
decree remains in effect for decades, enforcement of the decree necessarily interjects
a federal court into local affairs and binds local governmental officials who were not
parties to the consent decree. The federal court, thereby, effectively limits the
democratic process by restricting the array of resources available to the governmental
officials for the enactment of other policies.
Applying Horne to Rule 60(b)(5) motions for modifications to consent decrees
does not come without complication. Notably, an apparent tension exists between
Horne and Rufo with respect to the appropriate course of action where a party
seeking modification has brought itself into compliance with federal law but has not
substantially complied with the specific terms of the consent decree or court order.
Compare Horne, 557 U.S. at 450 (“If a durable remedy [addressing the federal law
violation] has been implemented, continued enforcement of the order is not only
unnecessary, but improper.”), with Rufo, 502 U.S. at 391 (“A proposed modification
should not strive to rewrite a consent decree so that it conforms to the constitutional
floor.”).
To the extent Rufo and Horne differ as to the appropriate course of action
when a party seeks a Rule 60(b)(5) modification to an order in an institutional reform
case, two considerations cause us to follow the course outlined in Horne when the
40
significant change advanced as the basis for Rule 60(b)(5) modification is the
defendant’s alleged ongoing compliance with federal law. First, Rufo involved a
proposed modification to a plan that, if faithfully implemented over time, would
eventually cure the federal law violation. See id. at 376 (describing requested
modification at issue as allowing for some double bunking in new facility yet to be
completed or opened). As such, unlike in Horne where the defendants alleged that
they had remedied the federal law violation, the defendants in Rufo had not yet
remedied the issues with overcrowding and neglect in maintaining the jail that gave
rise to the litigation. And, where the Rufo defendants had not remedied the issues
giving rise to the litigation, it naturally follows that the Rufo defendants, unlike the
Horne defendants, were not in a position to establish the implementation of a durable
remedy. Further, nothing in Rufo suggests that the proposed modification would
equate with, or for that matter exceed, the constitutional floor. Thus, while Rufo is
undoubtedly informative on many issues surrounding the Rule 60(b)(5) standard for
modifying a consent decree, its statement about not striving to modify a consent
decree to the constitutional floor is not germane to its decision.
Second, Horne represents the Court’s most recent proclamation regarding the
standard for obtaining a modification to an order in institutional reform litigation.
And, as noted by scholars, Horne is the latest ruling in a trend of decisions that lower
the threshold for defendants to obtain a modification to, or the dissolution of, orders
in long-lasting institutional reform cases. Jason Parkin, Aging Injunctions & the
Legacy of Institutional Reform Litigation, 70 Vand. L. Rev. 167, 193–94 & n.136
41
(2017) (citing Catherine Y. Kim, Changed Circumstances: The Federal Rules of Civil
Procedure and the Future of Institutional Reform Litigation After Horne v. Flores, 46
U.C. Davis L. Rev. 1435, 1466 (2013), and Mark Kelley, Note, Saving 60(b)(5): The
Future of Institutional Reform Litigation, 125 Yale L.J. 272, 307 (2015)).
As we read Horne, if a party seeking modification to a consent decree
demonstrates a significant change in circumstances, the district court must take a
flexible approach and consider whether the moving party has implemented a durable
remedy to cure the federal law violation underlying the institutional reform litigation.
See John B., 710 F.3d at 412 (“In applying this flexible approach, we must answer
two questions: first whether the state has achieved compliance with the federal-law
provisions whose violation the decree sought to remedy; and second, whether the
State would continue that compliance in the absence of continued judicial
supervision.”); see also Petties ex rel. Martin v. District of Columbia, 662 F.3d 564,
569, 571 (D.C. Cir. 2011) (applying Horne’s statement that district court “ought to
have ‘applied a flexible standard that seeks to return control to state and local
officials as soon as a violation of federal law has been remedied’” to context of
requested modification to preliminary injunction (quoting Horne, 557 U.S. at 450–
51)). The district court, by way of its role in overseeing the institutional reform
litigation for many years, is in the best position to evaluate both whether a party has
complied with federal law and, if so, whether the party is committed to ongoing
compliance with federal law in the absence of oversight by the federal court. See
Petties, 662 F.3d at 571 (recognizing that district court’s management of litigation
42
“for many years” places district court in position to assess likelihood of compliance
with federal law absent oversight). Likewise, the district court is also in the best
position to assess whether the litigation has taken on a life of its own and now
advances a purpose removed from remedying the initial violation(s) or whether
continued oversight remains necessary to ensure compliance with federal law.
Finally, we note that when applying the flexible approach and evaluating
whether a moving party implemented a durable remedy, a district court must consider
the totality of the moving party’s efforts to demonstrate sustained compliance with
federal law. In this respect, there is not a single path, such as the adoption of new
legislation, by which a party can demonstrate the implementation of a durable
remedy. See id., 662 F.3d at 569–71 (remanding for determination of whether
adoption of new internal policies, coupled with improved record of compliance with
federal law, satisfied durable remedy requirement). Several of the desegregation
cases, although arguably not directly on point, highlight the broad inquiry a district
court must undertake when determining a party’s commitment to abiding by federal
law. Specifically, factors that a district court may consider include the party’s
commitment to compliance, the duration of the party’s compliance with federal law,
and whether or not the effects of the violation of federal law persist. See Freeman v.
Pitts, 503 U.S. 467, 490 (1992) (holding that the district court may relinquish
desegregation control in incremental stages, and stating that: “one of the prerequisites
to relinquishment of control in whole or in part is that a school district has
demonstrated its commitment to a course of action that gives full respect to the equal
43
protection guarantees of the Constitution”); id. at 491 (listing relevant factors in
determining whether partial withdrawal of federal desegregation oversight is
appropriate as including whether the school district has demonstrated “its good-faith
commitment to the whole of the court’s decree and to those provisions of the law and
the Constitution that were the predicate for the judicial intervention in the first
instance”); Bd. of Educ. of Oklahoma City Pub. Sch. v, Dowell, 498 U.S. 237, 249–50
(1991) (stating that “[t]he district court should address itself to whether the Board
had complied in good faith with the desegregation decree since it was entered, and
whether the vestiges of past discrimination had been eliminated to the extent
practicable” while also considering the lengthy period of time during which the
Board complied with the federal court’s oversight).
e. Summary
From the foregoing discussion of Rufo, Horne, and other institutional reform
litigation cases, several principles emerge that are critical to our analysis of whether
Defendants are entitled to relief under Rule 60(b)(5).
First, a motion for relief from a consent decree based on an assertion that
“applying it prospectively is no longer equitable” demands a different focus than a
motion based on an assertion that “the judgment has been satisfied, released or
discharged.” See Fed. R. Civ. P. 60(b)(5); Horne, 557 U.S. at 454. With respect to the
latter ground for relief, it is appropriate for a court to focus on whether the movant
has satisfied each obligation set forth in the consent decree. But where, as here, the
movant contends that changed circumstances have rendered further enforcement of
44
the consent decree no longer equitable, the inquiry is whether the movant has shown
(a) that a significant change in factual circumstances or in law warrants revision of
the decree, and (b) that the requested modification is suitably tailored to the changed
circumstance. Rufo, 502 U.S. at 383–84, 391. A movant may establish that changed
factual circumstances warrant modification when (i) the changed circumstances
“make compliance with the decree substantially more onerous,” (ii) a “decree proves
to be unworkable because of unforeseen obstacles,” or (iii) “enforcement of the
decree without modification would be detrimental to the public interest.” Id. at 384.
It is an abuse of discretion for a district court to deny a motion for modification
where the moving party meets this burden. Horne, 557 U.S. at 447.
Second, a flexible approach to evaluating the equities of such a motion is
crucial where, as in this case, institutional reform is sought. Horne, 557 U.S. at 450;
Rufo, 502 U.S. at 380–81. Consent decrees in reform cases often remain in effect for
extended periods, thereby increasing the prospect that a significant change in factual
circumstances will occur. Horne, 557 U.S. at 447–48; Rufo, 502 U.S. at 380. Consent
decrees also tend to restrict state and local officials’ ability to implement new ideas
to old problems. Horne, 557 U.S. at 449; Rufo, 502 U.S. at 381. And they raise
sensitive federalism concerns that are heightened when a decree effectively dictates
state or local budget priorities. Horne, 557 U.S. at 448.
Third, when a party seeks termination or vacatur of a consent decree based on
the inequity of continued oversight, a court must determine not only whether changed
circumstances exist, but also whether the “objective” of the decree—that is, whether
45
compliance with federal law—has been attained. See id. at 450 (noting that “a critical
question in [the] Rule 60(b)(5) inquiry is whether the objective of the District Court’s
[initial] order—i.e., satisfaction of the EEOA’s ‘appropriate action’ standard—has
been achieved” (emphasis added) (citing Frew, 540 U.S. at 442)); id. at 454(concluding that the Ninth Circuit “needed to ascertain whether ongoing enforcement
of the original order was supported by an ongoing violation of federal law” (emphasis
added) (citing Milliken, 433 U.S. at 282)); id. at 468 (reiterating that the Ninth
Circuit should have asked whether the school district was meeting the EEOA’s
“appropriate action” requirement); see also Milliken, 433 U.S. at 282 (explaining that
a decree must be “tailored to cure the condition that offends” federal law and seek to
restore victims of unlawful conduct to the position they would have occupied absent
the unlawful conduct (internal quotation marks omitted)); John B., 710 F.3d at 411
(stating that a court considering a Rule 60(b)(5) motion “must determine whether
‘ongoing enforcement of the original order [is] supported by an ongoing violation of
federal law’” (alteration in original) (emphasis added) (quoting Horne, 557 U.S. at
454)); Washington, 573 F.3d at 710 (interpreting Horne and Rufo as requiring a court
to “consider whether the purpose of the decree” has been achieved). So where the
basis of the Rule 60(b)(5) motion is that continued enforcement of the decree is no
longer equitable, instead of inquiring narrowly whether the specific obligations of a
consent decree have been attained, the court must broadly inquire whether the party
obligated by the decree is at that time in compliance with federal law. Horne, 557
U.S. at 451–52; see also id. at 439 (stating that the lower courts needed to ask the
46
broader question whether the state “was fulfilling its obligation under the EEOA by
other means”). And once compliance with federal law has been attained, a court must
return control over the program to the state and its officials, provided a durable
remedy is in place. See id. at 452 (“‘When the objects of the decree have been
attained’—namely, when EEOA compliance has been achieved—‘responsibility for
discharging the State’s obligations [must be] returned promptly to the State and its
officials.’” (alteration in original) (quoting Frew, 540 U.S. at 442)); see also Frew,
540 U.S. at 442 (“The federal court must exercise its equitable powers to ensure that
when the objects of the decree have been attained, responsibility for discharging the
State’s obligations is returned promptly to the State and its officials.” (emphasis
added)); Washington, 573 F.3d at 709 (“The Constitution does not establish the
district courts as permanent administrative agencies.”).
Last, the existence of a durable remedy may warrant disengagement of judicial
oversight. The Horne Court’s single reference to a durable remedy states:
[A] critical question in this Rule 60(b)(5) inquiry is whether the
objective of the District Court’s [initial] order—i.e., satisfaction of the
EEOA’s “appropriate action” standard—has been achieved. See [Frew,]
540 U.S. at 442. If a durable remedy has been implemented, continued
enforcement of the order is not only unnecessary, but improper. See
Milliken, [433 U.S.] at 282.
Horne, 557 U.S. at 450. From the latter sentence, it is fair to conclude that if a
durable remedy is in place, then the movant has attained the more-general objects of
the decree—i.e., compliance with federal law. We interpret the Court’s reference to a
“durable remedy” as recognition that fleeting federal compliance is insufficient to
47
warrant relief. Thus, a district court, in assessing whether further oversight is
equitable, may and should consider the totality of defendants’ efforts to comply with
federal law and defendants’ commitment to remaining in compliance with federal
law. Such is the approach adopted by two of our sister circuits subsequent to Horne.
See supra 41-43 (discussing application of Horne’s durable remedy language in John
B., 710 F.3d 391 and Petties, 662 F.3d 564).
And like our sister circuits, we do not read the language in Horne too
restrictively with respect to what may constitute a durable remedy. The Court has
admonished against taking language from its opinions out of context and giving it
“talismanic quality.” Rufo, 502 U.S. at 380. Recall that, in Rufo, the district court
denied modification of the consent decree because the state defendants had failed to
meet the “clear showing of grievous wrong” evoked by the Court in United States v.
Swift & Co., 286 U.S. 106 (1932). Rufo, 502 U.S. at 377. The Court acknowledged
that the “grievous wrong” language used in Swift, if “[r]ead out of context,”
“suggests a ‘hardening’ of the traditional flexible standard for modification of
consent decrees.” Id. at 379. It explained, however, that such a reading would be
inconsistent with Rule 60(b)(5): “That Rule, in providing that, on such terms as are
just, a party may be relieved from a final judgment or decree where it is no longer
equitable that the judgment have prospective application, permits a less stringent,
more flexible standard.” Id. at 380. A similarly cautious reading of the “durable
remedy” language in Horne is appropriate here.
48
When a Rule 60(b)(5) movant has established both the absence of an ongoing
violation of federal law and a future commitment to remain in compliance with
federal law, federalism concerns should inform a court’s flexible determination as to
how a consent decree will be modified. Rule 60(b)(5) dictates as much. See Rufo, 502
U.S. at 380. Accordingly, there is no one way for a movant to show that its federal
compliance is more than fleeting. For example, a movant may establish its
commitment to future compliance through the adoption of a durable remedy—such as
a statute designed to cure the specific federal violation. See Horne, 557 U.S. at 450.
A movant may also establish its commitment to future compliance through a record
of sustained good-faith efforts to remedy federal violations and, to the extent
possible, eliminate the vestiges of the federal violation. See Freeman, 503 U.S. at
490, 498; Dowell, 498 U.S. at 248–49. Ultimately, the district court’s wealth of
experience overseeing the litigation should inform its assessment of whether the
Defendants are now in compliance with federal law, and whether they are committed
to remaining in compliance.6
In summation, if Defendants here can show they are no longer violating the
class members’ federal rights, and the district court has reason to believe Defendants’
compliance with federal law is durable, then “continued enforcement of the District
Court’s original order[s] is inequitable within the meaning of Rule 60(b)(5), and
relief is warranted.” Horne, 557 U.S. at 470; see also John B., 710 F.3d at 413;
6
Here, the district court has been involved with this case for three decades. It
has personal knowledge of the efforts by the Defendants to meet their obligations and
the complexity involved in setting compliance measures.
49
Petties, 662 F.3d at 570-71. To require more under those circumstances would raise
serious federalism concerns. It also would conflict with the Supreme Court’s
admonition that a federal consent decree should do no more than remedy a condition
that violates federal law. Milliken, 433 U.S. at 282. Once the offending condition has
been cured, the Court has instructed that responsibility over the state program must
be returned promptly to the state and its officials. Frew, 540 U.S. at 442; see also
Horne, 557 U.S. at 450–51 (stating the flexible standard under Rule 60(b)(5) “seeks
to return control to state and local officials as soon as a violation of federal law has
been remedied”). And in weighing the equities, the district court should avoid
imposing an inflexible standard that risks depriving future officials of their
legislative and executive powers. See Horne, 557 U.S. at 449. After all, such
inflexibility is unnecessary to protect the federal interests at the heart of the
institutional reform litigation. If the state again violates federal law, victims may file
a new lawsuit to bring the state back into compliance. Elected officials may also be
held accountable to the citizenry through the political process. For all of these
reasons, we conclude that Defendants may satisfy the durability required by Horne in
a number of ways, including: by taking specific, long-term actions aimed at curing
the federal violations, by making good faith efforts to obtain compliance, or by
operating in conformity with federal law for a reasonable period of time.
3. Application
Since this case’s inception, the district court has expended considerable effort
and displayed exceptional skill resolving the numerous issues that have arisen.
50
Despite this fine stewardship, two aspects of the ruling on Defendants’ Rule 60(b)(5)
motion require us to vacate the June 2016 order and to remand for further
proceedings in the district court.
First, the district court’s determination that there are no changed circumstances
appears to be inconsistent with its factual findings. Defendants maintain that changed
factual circumstances warrant relief, including that (a) their obligations have
increased in number and complexity to the point the obligations have become
substantially onerous, (b) they remedied the constitutional violations giving rise to
this litigation and are in compliance with federal law, and (c) increased costs to
litigate this case and to provide services to class members have inhibited the State’s
ability to fund other important programs such that continued enforcement of the
decree is contrary to the public interest.
Although the district court concluded that Defendants “have not presented
sufficient changed circumstances . . . to warrant the requested relief,” Jackson III,
2016 WL 9777237, at *17, the court seemingly endorsed Defendants’ argument that
their “task ha[d] become incomprehensible, if not insurmountable,” and recognized
that their outstanding obligations “are onerous,” id. at *14.7 The court also
7
Defendants may have anticipated at the time they entered into the pertinent
decrees that the number and complexity of obligations would substantially increase.
After all, their obligations did not become onerous as a result of changed factual
circumstances occurring after they entered into the decrees—it was the act of
entering into the decrees itself that multiplied their obligations. On remand, if the
district court finds that Defendants anticipated that their obligations would
substantially increase in number and complexity, Defendants would have to “satisfy a
heavy burden to convince [the] court that [they] agreed to the decree[s] in good faith,
51
acknowledged that the “increasing fees and costs associated with this litigation are
detrimental to the State’s interest,” that “more than 25 years of orders and
stipulations have restricted the State’s ability to make basic decisions concerning its
budget,” and that “it is doubtful that the outlay of over 5 million dollars of attorney’s
fees and costs every year is directly assisting” class members. Id. at *16. Indeed, the
district court noted that Defendants have spent more than $50 million related to this
litigation in the last decade, id. at *12, and that, as of 2009, the average yearly costs
to provide services to class members had risen from $67,290.00 to $135,535.000 per
class member, while the State’s $32,992.00 per capita income was the ninth lowest in
the nation, id. at *13.
Despite accepting these facts advanced by Defendants, the district court
concluded, without adequate explanation, that the facts did not amount to a
significant change in circumstances. But the district court’s conclusion that the
obligations on the Defendants are “onerous” suggests Defendants established a
significant change in circumstances under Rufo’s first two prongs for showing a
change in facts warranting modification—that “changed factual conditions make
compliance with the decree substantially more onerous” and that “a decree proves to
be unworkable because of unforeseen obstacles.” See Rufo, 502 U.S. at 384.
Similarly, the district court’s findings concerning the increased fees and costs, and
how they have restricted the State’s ability to make decisions about its budget,
made a reasonable effort to comply with the decree[s], and should be relieved of the
undertaking under Rule 60(b).” Rufo, 502 U.S. at 385.
52
suggest that continued enforcement of the decrees is detrimental to the public
interest. See Horne, 557 U.S. at 447 (explaining that Rule 60(b)(5) “provides a means
by which a party can ask a court to . . . vacate a judgment or order if a significant
change either in factual conditions or in law renders continued enforcement
detrimental to the public interest” (internal quotation marks omitted)); id. at 448 (“A
structural reform decree eviscerates a State’s discretionary authority over its own
program and budgets and forces state officials to reallocate state resources and
funds[.]” (quoting Missouri v. Jenkins, 515 U.S. 70, 131 (1995) (Thomas, J.,
concurring))); id. at 454 (recognizing that a decree is detrimental to the public
interest when it risks “improperly interfer[ing] with a State’s democratic process”);
id. at 459 (concluding that the district court’s imposition of heavy fines on the state
“unquestionably imposed important restrictions on the legislature’s ability to set
budget priorities”); Small v. Hunt, 98 F.3d 789, 796 (4th Cir. 1996) (stating in a Rule
60(b)(5) case that the public “has an interest in how its tax dollars are spent”). We
remand for further explanation of why these facts do not constitute a significant
change in circumstances.8
8
To be sure, the district court questioned the timing of the changes relative to
the Defendants’ pending, August 25, 2015, Rule 60(b)(5) motion. This explanation,
however, may not justify rejecting the conclusion that a significant change in
circumstances occurred where (1) Defendants filed a Rule 60(b)(5) motion in 2011
that the district court terminated without ruling on the merits of the motion and (2)
the district court made no reference to the requirement in Fed. R. Civ. P. 60(c)(1) that
a Rule 60(b) motion be “made within a reasonable time.” Of course, on remand, the
district court is free to perform a Rule 60(c)(1) timeliness analysis and conclude that,
even in light of the 2011 Rule 60(b)(5) motion, Defendants did not seek relief
“within a reasonable time” of the change in circumstances upon which they rely.
53
Second, federalism concerns are heightened here because the decrees and the
court’s continued oversight have “the effect of dictating state . . . budget priorities.”
Horne, 557 U.S. at 448. Despite acknowledging the federalism concerns at play,
including the lengthy duration of federal oversight and the budgetary constraints
resulting from continued federal oversight, the district court did not apply the flexible
approach called for by Horne. Under the flexible approach, the district court needed
to inquire whether “the objects of the decree[s] have been attained.” Id. at 452(internal quotation marks omitted). The court purported to engage in this analysis,
stating that the objects—or “essential purposes”—of the pertinent decrees “are to
provide class members with adequate health care, a reasonably safe environment, and
supported employment opportunities.” Jackson III, 2016 WL 9777237, at *14. The
court then noted that these “more specific” essential purposes are encompassed in the
obligations provided in the pertinent decrees. Id. And because Defendants conceded
they have not substantially complied with many of those decree obligations, the court
determined that Defendants “have not fulfilled the essential purposes of the pertinent
decrees.” Id.Like the Ninth Circuit’s analysis in Horne, the district court’s analysis on this
point was too narrow, focusing almost entirely on whether defendants had fulfilled
the numerous, detailed obligations provided in the consent decrees. But because
Defendants move on the ground that continued enforcement of the consent decrees is
no longer equitable, the district court should have “ascertain[ed] whether ongoing
enforcement of the [decrees] was supported by an ongoing violation of federal law,”
54
see Horne, 557 U.S. at 454—here, whether Defendants are violating class members’
rights under the substantive due process component of the Fourteenth Amendment
and under the Rehabilitation Act. The court explicitly declined to make this
determination, stating it “is not in the position to assess, and, therefore, cannot
conclude that Defendants are no longer violating constitutional or federal law.”
Jackson III, 2016 WL 9777237, at *16. In declining to make this finding, the district
court failed to perform an inquiry that we, in accord with both the Sixth Circuit and
the D.C. Circuit, conclude that Horne requires. See Ohlander, 114 F.3d at 1537 (“A
clear example of an abuse of discretion exists where the trial court fails to consider
the applicable legal standard[.]”).9
The district court appears to have focused on whether Defendants substantially
complied with the decree obligations, as well as an overly narrow view of the objects
of the consent decree. Substantial compliance with all the obligations in the pertinent
decrees would likely place New Mexico in compliance with federal law. But the
obligations are merely a means of accomplishing that goal, not the end. See Horne,
557 U.S. at 454–55. On remand, the court should consider the broader question of
whether the State is meeting the requirements of the Fourteenth Amendment and the
Rehabilitation Act by means other than those stated in the consent decrees. See id. at
439. To be sure, the court concluded that “Defendants have not shown that they have
fulfilled their outstanding obligations, ‘by other means.’” Jackson III, 2016 WL
9The burden of showing compliance with federal law is, of course, on the
Defendants.
55
9777237, at *17 (quoting Horne, 557 U.S. at 439). But the court seemingly focused
on whether Defendants have fulfilled their decree obligations by other means, instead
of focusing on the broader question of whether Defendants have fulfilled their
federal-law obligations to class members by means other than those provided in the
decrees.10 Such an inquiry is critical not only to determining whether Defendants are
in current compliance with federal law, but also to analyzing whether their
compliance is durable. In other words, an inquiry into whether Defendants are
currently in compliance with federal law is a necessary predicate to any inquiry into
whether that compliance is more than merely fleeting. Unless the court properly
focuses its inquiry on compliance with federal law, it cannot analyze whether any
remedy adopted by the state will be effective to maintain such compliance. In turn,
without analyzing whether Defendants are in compliance with federal law and, if so,
whether they are likely to maintain compliance with federal law absent continued
oversight, the district court was not in a proper analytical position to determine
whether Defendants’ proposed modification of terminating the consent decrees was
properly tailored to any significant change in circumstances. Thus, after first deciding
10
The district court also justified its ruling based on its finding that the
obligations set forth in the JSD, the Plan of Action, and Appendix A “all flowed from
[its] original findings of violations in 1990.” Jackson III, 2016 WL 9777237, at *15.
Accepting this finding as true, all it shows is those decrees do not exceed appropriate
limits of a federal-court decree. See Horne, 557 U.S. at 450 (stating that “federal-
court decrees exceed appropriate limits if they are aimed at eliminating a condition
that does not violate [federal law] or does not flow from such a violation” (quoting
Milliken v. Bradley, 433 U.S. 267, 282 (1977))). But even a decree that is within
appropriate bounds may be vacated where changed circumstances make prospective
enforcement of the decree no longer equitable and where the movant has attained
compliance with federal law.
56
whether New Mexico is now in compliance with federal law, the district court should
assess whether that compliance is durable, or whether the proposed modification is
not properly tailored to any change in circumstances because equity weighs in favor
of further federal oversight to assure the protection of the class members’ federal
rights.
In sum, due to the public interests and federalism concerns, continued
enforcement of the consent decrees is warranted only to the extent Defendants are in
current violation of federal law or have reached only fleeting compliance. We remand
so the district court can make up-to-date findings and determine whether Defendants
are currently violating class members’ rights under the Fourteenth Amendment and
the Rehabilitation Act. On remand, the district court should conduct the necessary
proceedings to develop a record that would allow it to make this determination. If the
court then concludes Defendants are not violating class members’ rights under
federal law, the court should assess the durability of that compliance. In the event
that Defendants have implemented a durable remedy, the court should next address
whether vacatur of all pertinent orders and termination of this case is appropriate.
III. CONCLUSION
We VACATE the district court’s June 2016 Order and REMAND so the court can
make appropriate findings and conclusions and then reassess the equities under Rule
60(b) with the benefit of those findings and conclusions.
57