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Case: 16-40482

Document: 00513448795

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Date Filed: 04/01/2016

No. 16-___

In the United States Court of Appeals


for the Fifth Circuit
In re Greg Abbott, in his official Capacity as Governor of the State of Texas;
Chris Traylor, in his official capacity as Executive Commissioner of the Health
and Human Services Commission of the State of Texas; and
John J. Specia, Jr., in his official capacity as Commissioner of the Department of
Family and Protective Services of the State of Texas
On Petition for Writ of Mandamus to the United States District Court
for the Southern District of Texas, Corpus Christi Division
Case No. 2:11-CV-00084
PETITION FOR WRIT OF MANDAMUS
Ken Paxton
Attorney General of Texas

Scott A. Keller
Solicitor General

Jeffrey C. Mateer
First Assistant Attorney General

Joseph D. Hughes
Philip A. Lionberger
Assistant Solicitors General

Office of the Attorney General


P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-1700
Fax: (512) 474-2697

Thomas A. Albright
Assistant Attorney General
Counsel for Petitioners

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No. 16-___
In re: Greg Abbott, et al.

Certificate of Interested Persons


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

Petitioners Counsel
Greg Abbott,
Ken Paxton
in his official Capacity as Governor of the Jeffrey C. Mateer
State of Texas
Scott A. Keller
Joseph D. Hughes
Chris Traylor,
Philip A. Lionberger
in his official capacity as Executive
Thomas A. Albright
Commissioner of the Health and Human Angela V. Colmenero
Services Commission of the State of
Andrew B. Stephens
Texas
Marc Rietvelt
Office of the Attorney General
John J. Specia, Jr.,
in his official capacity as Commissioner of
the Department of Family and Protective
Services of the State of Texas
Respondent
The Honorable Janis Graham Jack
United States District Court for the
Southern District of Texas, Corpus
Christi Division

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

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Respondents Counsel
Sara Bartosz
Christina W. Remlin
Aaron Finch
Joshua Rosenthal
Adam Denebrow
Adriana Teresa Luciano
Christina Wilson
Elizabeth Pitman
Ira Lustbader
Jessica Polansky
Melissa Cohen
Patrick Almonrode
Rachel Brodin Nili
Sarah T. Russo
Stephen Dixon
William Kapell
CHILDRENS RIGHTS

D.I., by next friend


Nancy G. Pofahl
Z.H., by next friend
Carla B. Morrison
S.A., by next friend
Javier E. Solis
A.M., by next friend
Jennifer Talley
J.S., by next friend
Anna J. Ricker
K.E., by next friend
John W. Cliff, Jr.
D.P., by next friend
Karen J. Langsley

Marcia Robinson Lowry


A Better Childhood, Inc.

T.C., by next friend


Paul Swacina

Reagan W. Simpson
R. Paul Yetter
Dori Kornfeld Goldman
Lonny Hoffman
Christian J. Ward
Christopher D. Porter
Yetter Coleman LLP
Barry F. McNeil
David A. Dodds
Richard T. Behrens
Haynes Boone LLP
/s/ Philip A. Lionberger
Philip A. Lionberger
Attorney for Petitioners
ii

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Table of Contents
Page
Certificate of Interested Persons ..............................................................................i
Table of Authorities ............................................................................................... iv
Statement of Relief Sought ..................................................................................... 1
Introduction ............................................................................................................ 1
Issues Presented .....................................................................................................2
Statement of Facts ..................................................................................................2
Reasons Why the Writ Should Issue .......................................................................6
I. The District Court Clearly Abused Its Discretion by Referring
This Case to Special Masters. ....................................................................6
A. The Appointment Order Does Not Comply with FRCP 53. ................6
B. The Appointment Order Directs the Special Masters to
Apply the Wrong Constitutional Standard. ....................................... 11
II. Defendants Have No Adequate Remedy by Appeal. ................................ 14
III. Issuance of the Writ Is Appropriate in the Extraordinary
Circumstances Here. ...............................................................................20
Conclusion ............................................................................................................ 25
Certificate of Service............................................................................................. 26
Exhibits
1. Plaintiffs original Complaint
2. Order (June 2, 2011)
3. Plaintiffs Memorandum of Law in Support of Motion for Class Certification
4. Docket Sheet
5. Memorandum Opinion and Verdict (Dec. 17, 2015)
6. Stay Order (Mar. 21, 2016)
7. Transcript of Hearing Re: Special Master (Mar. 21, 2016)
8. Defendants Submission of Special Master Candidates
9. Opposed Motion to Revoke Reference to Special Masters, and in the
Alternative, Motion for Certification under [28] U.S.C. 1292(b) and Stay
of Enforcement Pending Appeal
10. Appointment Order (Mar. 21, 2016)
11. Order Re: Motion to Revoke (Mar. 29, 2016)
iii

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12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.

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Transcript Excerpt
Transcript Excerpt
Transcript Excerpt
Transcript Excerpt
Transcript Excerpt
Transcript Excerpt
Transcript Excerpt
Transcript Excerpt
Transcript Excerpt
Transcript Excerpt
Transcript Excerpt
Transcript Excerpt
Transcript Excerpt
TSG Report: Assessment Findings
TSG Report: Recommendations
Report to Sunset Advisory Commission
Transformation Weekly Update
CPS Transformation Work Plan
CPS Transformation Goals and Priorities
CPS Transformation Status Report
Transcript Excerpt
Transcript Excerpt
Transcript Excerpt
Transcript Excerpt
Letter to Judge Jack from Special Master Kevin Ryan
Special Master Team List

Table of Authorities
Page(s)
Cases
Arthur Murray, Inc. v. Oliver, 364 F.2d 28 (8th Cir. 1966) ..................................... 16
Cheney v. U.S. Dist. Ct., 542 U.S. 367 (2004) ........................................................ 21
City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 (2d Cir. 2011) ............ 10
Collins v. City of Harker Heights, 503 U.S. 115 (1992)............................................. 12
iv

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Ex parte Peterson, 253 U.S. 300 (1920) .................................................................... 6


Griffith v. Johnston, 899 F.2d 1427 (5th Cir. 1990) ................................................ 12
Hall v. Smith, 497 F. Appx 366 (5th Cir. 2012) (per curiam) ................................ 11
Hernandez v. Texas Department of Protective and Regulatory Services, 380
F.3d 872 (5th Cir. 2004) ................................................................................. 11
Horne v. Flores, 557 U.S. 433 (2009) ..................................................................... 24
In re Volkswagen of Am. Inc., 545 F.3d 304 (5th Cir. 2008) (en banc)...........16, 20, 21
In re Watkins, 271 F.2d 771 (5th Cir. 1959) ................................................. 15, 19, 21
K.H. ex rel. Murphy v. Morgan, 914 F.2d 846 (7th Cir. 1990).................................. 12
La Buy v. Howes Leather Co., 352 U.S. 249 (1957)........................................... passim
Liptak v. United States, 748 F.2d 1254 (8th Cir. 1984) (per curiam).........................7
M.D. ex rel. Stukenberg v. Perry, 294 F.R.D. 7 (S.D. Tex. 2013) ......................... 3, 14
M.D. ex rel. Stukenberg v. Perry, 547 F. Appx 543 (5th Cir. 2013)
(per curiam) ......................................................................................................3
M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832 (5th Cir. 2012) ..................................3
Marisol A. ex rel. Forbes v. Giuliani, 929 F. Supp. 662 (S.D.N.Y. 1996) .................. 12
Prudential Ins. Co. of Am. v. U.S. Gypsum Co., 991 F.2d 1080 (3d Cir. 1993) ......... 20
R. G. v. Koller, 415 F. Supp. 2d 1129 (D. Haw. 2006) ............................................ 12
Sierra Club v. Clifford, 257 F.3d 444 (5th Cir. 2001) .................................... 7, 15, 20
United States v. Microsoft Corp., 147 F.3d 935 (D.C. Cir. 1998) ........................ 10, 16
Statutes and Rules
28 U.S.C. 1292(a) .............................................................................................. 17
28 U.S.C. 1292(b) ....................................................................................... passim
42 U.S.C. 1983 .....................................................................................................3
Fed. R. Civ. P. 23(b)(2)......................................................................................9
Fed. R. Civ. P. 53 ......................................................................................... 1, 12
Fed. R. Civ. P. 53(a)(1)(C) .................................................................. 2, 6, 10, 11
Fed. R. Civ. P. 53(b) ...................................................................................17, 18
v

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Other Authorities
U.S. Dist. & Bankr. Ct., S. Dist. of Texas, History & Statistics,
http://www.txs.uscourts.gov/history-statistics
(last visited Mar. 31, 2016) .............................................................................. 10

vi

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Statement of Relief Sought


Greg Abbott et al., petitioners herein and defendants below (collectively,
Defendants), seek mandamus relief directing the district court to vacate its
Appointment Order of March 21, 2016, which refers this case to special
masters to devise plans for ameliorating alleged constitutional violations in the
States foster-care system.1 The writ should direct the district court to craft
appropriate injunctive relief. Defendants further request that the Court stay
any special-master proceedings pending the disposition of this petition.

Introduction
The district court has abused its discretion, and violated Federal Rule of
Civil Procedure (FRCP) 53, by delegating to special masters its duties of
drawing constitutional lines and crafting appropriate injunctive relief. The
district court has unique knowledge of the facts and legal issues in this case,
which it has been presiding over for the past five years, and its Appointment
Order identifies no extraordinary circumstances that warrant reference to
special masters. Moreover, by forcing Defendants to subsidize the drafting of
the injunction that it will ultimately adopt, the district court is making
Defendants pay dearly for the privilege of appealing the findings and
conclusions underlying that injunction. In effect, the court has imposed a nonconsensual consent decree. Mandamus relief is accordingly warranted.

Petitioners dispute the correctness of the district courts findings and conclusions of
constitutional violations, and this original proceeding is being brought without prejudice to
their right to appeal those findings at an appropriate time.

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Issues Presented
1.

FRCP 53(a)(1)(C) allows a district court to refer to a special master


certain post-trial matters that cannot be effectively and timely
addressed by an available district judge or magistrate judge of the
district. The district courts Appointment Order delegates to
special masters the task of crafting injunctive relief to address alleged
constitutional violations in the States foster-care system. Does the
Appointment Order represent a clear abuse of discretion?

2. The district court denied Defendants application for a permissive


interlocutory appeal of the Appointment Order under 28 U.S.C.
1292(b). Moreover, waiting to overturn the Appointment Order on
appeal from the final injunction would exact a high price in terms of
time, resources, and money. Do Defendants have an adequate
remedy by appeal?
3. In addition to the requirements of a clear abuse of discretion and no
adequate remedy by appeal, the issuance of a writ of mandamus must
be appropriate under the circumstances. In this case, the
Appointment Order raises significant concerns regarding the
delegation of judicial tasks, the integrity of the proceedings, and
federalism. Is the issuance of a writ of mandamus appropriate under
the circumstances of this case?

Statement of Facts
Plaintiffs in the underlying civil action are nine children (Named
Plaintiffs) in the custody of Texass Permanent Managing Conservatorship
(PMC), i.e., long-term foster care. Ex.1, at 1, 5-30. Acting through their
next friends, Ex.1, at 31-33, Named Plaintiffs filed a class-action lawsuit under
42 U.S.C. 1983 against Defendants in their official capacities, Ex.1, at 33-34,
seeking declaratory and injunctive relief to redress alleged class-wide injuries
caused by violations of the substantive component of the Fourteenth

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Amendments Due Process Clause, among other things, which allegedly stem
from systemic deficiencies in Defendants administration of the PMC. Ex.1,
at 79-83. The district court certified a class of [a]ll children who are now and
all those who will be in the [PMC] of the Texas Department of Family and
Protective Services [DFPS]. Ex.2, at 34. This Court granted Defendants
petition for permission to appeal, vacated the district courts classcertification order, and remanded for further proceedings. M.D. ex rel.
Stukenberg v. Perry (M.D. I), 675 F.3d 832, 849 (5th Cir. 2012).
On remand, Named Plaintiffs filed a second Motion for Class
Certification. Ex.3. After a hearing, the district court certified a general class
and two subclasses (Plaintiffs). M.D. ex rel. Stukenberg v. Perry (M.D. II),
294 F.R.D. 7, 67 (S.D. Tex. 2013).2 Defendants sought permission to appeal
the class-certification order, but the Court dismissed the petition as untimely.
M.D. ex rel. Stukenberg v. Perry (M.D. III), 547 F. Appx 543, 544 (5th Cir.
2013) (per curiam).
A bench trial was held over ten days in December 2014. Ex.4, at 58-59. In
December 2015, the district court issued its 255-page Memorandum Opinion
and Verdict (Opinion). Ex.5. In sum, the court found that DFPSs policies
and practices concerning the PMC violated Plaintiffs substantive due process
rights, entitling them to injunctive relief. Ex.5, at 242-45.

The district court initially certified three subclasses, but later decertified one of
them. Ex.5, at 156.

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Germane to the issues in this petition, the court also stated that,
[b]ecause of the complexity and breadth of reforms that are required to bring
DFPS in compliance with the Constitution, it would appoint a State-funded
special master to help craft the reforms and oversee their implementation.
Ex.5, at 245. After setting a schedule for selecting the special master, the
courts Opinion describes a process that tasks the special master with the
creation of an Implementation Plan, subject to court oversight and
approval. Ex. 5, at 246-48. The Opinion also lists numerous policy preferences
as goals to guide the Implementation Plan. Ex.5, at 248-54. Defendants
filed an interlocutory appeal and moved to stay the injunction, including the
masters appointment, and this Court denied the motion on March 21, 2016.
Ex.6, at 2.
That same day, over Defendants objections, Ex.7, at 8-9, 202-08; see also
Ex.8, at 2; Ex.9, the district court signed an order appointing two special
masters pursuant to [FRCP] 53 and the [c]ourts inherent powers. Ex.10,
at 1. The Appointment Order describes the special masters duties and
terms in 30 numbered paragraphs, Ex.10, at 1-8, and directs that [t]he role
of the Special Masters is to effectuate the Courts Memorandum Opinion and
Verdict of the Court by formulating, monitoring, and creating an
Implementation Plan in conjunction with the Court so as to administer the
Memorandum Opinion by bringing the State into compliance with
constitutional standards of care. Ex.10, at 1-2. The Appointment Order also
reiterates the courts earlier findings that: the post-judgment matters in this
4

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case cannot be addressed effectively and timely by the Court; [t]he issues
in this case are especially sophisticated, wide-ranging, and protracted,
involving complicated facts and administrative problems in crafting and
implementing the injunction, which will be difficult to evaluate, quantify, and
administer; [r]esolution of these issues will require highly specialized and
technical knowledge; and [a] Special Master who is an expert in a field
relevant to foster care systems is better suited to craft, monitor, and
implement the necessary reforms. Ex.10, at 1.
Petitioners must pay each special master $345 per hour plus reasonable
expenses. Ex.10, at 6. The special masters must submit an Implementation
Plan to reform Texass foster care system within 180 days of the
Appointment Order, after which time the court will hold a hearing regarding
the plan. Ex.10, at 2. The special masters are also to supervise DFPSs reforms
by submitting progress reports every 180 days after the hearing, Ex.10, at 4,
and will serve until the court deems their services no longer necessary,
Ex.10, at 8.
Defendants filed a Motion to Revoke the Reference to Special Masters or
for Certification and Stay in the Alternative. Ex.9. The district court denied
the motion and refused to certify the order for interlocutory appeal pursuant
to 28 U.S.C. 1292(b) or stay the proceedings. Ex.11.
This petition for writ of mandamus ensued.

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Reasons Why the Writ Should Issue


I. The District Court Clearly Abused Its Discretion by Referring
This Case to Special Masters.
A. The Appointment Order Does Not Comply with FRCP 53.
The district court issued the Appointment Order under FRCP
53(a)(1)(C), which allows a judge to refer to a special master only those posttrial matters that cannot be effectively and timely addressed by an available
district judge or magistrate judge of the district. The Appointment Order
does not satisfy this requirement, and thus the courts referral of the case to
special masters is a clear abuse of discretion warranting mandamus relief. See
La Buy v. Howes Leather Co., 352 U.S. 249, 259 (1957).
In La Buy, the Supreme Court warned that [t]he use of masters is to aid
judges in the performance of specific judicial duties . . . and not to displace
the court. Id. at 256 (quoting Ex parte Peterson, 253 U.S. 300, 312 (1920)). In
referring two consolidated antitrust cases to a special master, the district court
had cited its congested docket, the extensive amount of time required to try
the cases, and the complex factual and legal issues presented. Id. at 259. The
Supreme Court affirmed the court of appeals exercise of mandamus power
vacating the referral, holding that those circumstances did not constitute an
exceptional condition justifying a reference under Rule 53. Id. at 259-60. The
Court recognized that if congestion and complexity were sufficient bases to
refer a case to a special master, non-consensual references would become the
rule rather than the exception. Id. at 259. Moreover, the district courts

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significant involvement in various pretrial matters undermined the reference.


See id. at 252 (noting that much time would have been saved at the trial had
[the district judge] heard the case because of his familiarity with the
litigation).
In Sierra Club v. Clifford, this Court followed La Buy in observing that a
reference to a master shall be the exception and not the rule and may be
made only upon a showing that some exceptional condition requires it. 257
F.3d 444, 446 (5th Cir. 2001); see Liptak v. United States, 748 F.2d 1254, 1257
(8th Cir. 1984) (per curiam) (noting that La Buy has been widely interpreted
as sharply limiting the use of nonconsensual reference). In Clifford, the
Court rejected the use of a special master to adjudicate dispositive motions in
a complex administrative dispute, noting that voluminous filings containing
highly technical documents and declarations are pretty much the norm for
modern federal litigation. 257 F.3d at 447. The Court observed that many
federal cases involve compliance with governmental regulations, and stated
that the [district] courts unfamiliarity with the subject matter can hardly
excuse the courts obligation to carry out its judicial function. Id.
As in La Buy and Clifford, the reference to special masters in this case was
a clear abuse of discretion. The length, detail, and comprehensiveness of the
district courts Opinion finding constitutional violations in DFPSs
administration of the PMC belie the notion that the court has neither the time

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nor the expertise to craft an injunction.3 This case has been on Judge Jacks
docket since 2011, the year in which she assumed senior status. In the five
years since then, she has written dozens of orders spanning many pages,
including two class certification orders totaling 142 pages and a 255-page
opinion on the merits. She read every single thing thats been filed in the
case, including every single exhibit admitted at trial, Ex.12, at 14, 17-18.
That it took the court a full year to issue its Opinion shows that Judge Jack
spent considerable time and effort thinking about the constitutional issues
concerning the PMC and the form and substance of injunctive relief to rectify
the purported violations. Ex.5, at 155-254. Her familiarity with the
litigation means that much timeand millions of taxpayer dollars
would be saved by having the district court finish the job of crafting a complete
(and appealable) injunction. La Buy, 352 U.S. at 252.
Judge Jack already was personally familiar with Texass foster-care
system from her 13 years representing foster-care children as an attorney ad
litem. Ex.13, at 12, ll. 5-8. That experience, together with presiding over
several years of pre-trial proceedings in this case, allowed her to effectively
serve as a witness numerous times at trial. Ex.14. The notion that the author
of the 255-page Opinion awarding systemic reform of the foster-care system

To have certified an injunctive class, the district court must have determined that
there is an injunction that remedies the class injury. Fed. R. Civ. P. 23(b)(2). The
Opinion, however, is silent both on what injunctive relief complies with Rule 23(b)(2) and
on what injunctive relief is necessary to cure the constitutional violations the court has
found.

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lacks sufficient knowledge to render appropriate injunctive relief is simply


untenable. Cf. La Buy, 352 U.S. at 256 (noting that the district courts
knowledge of the cases at the time of the references, together with his long
experience in the antitrust field, points to the conclusion that he could dispose
of the litigation with greater dispatch and less effort than anyone else).
Nor has there been any showing that no other district or magistrate judge
in the Southern District is available, as FRCP 53 requires. Fed. R. Civ.
P. 53(a)(1)(C). The district is currently served by 26 district judges and 15
magistrate judges. See U.S. Dist. & Bankr. Ct., S. Dist. of Texas, History &
Statistics, http://www.txs.uscourts.gov/history-statistics (last visited Mar.
31, 2016). The district courts finding that the matters referred to the special
masters cannot be addressed effectively and timely by the Court, Ex.10, at 1
(emphasis added), fails to address whether any of the 40 other judges in the
Southern District are available. Cf. La Buy, 352 U.S. at 257 (approvingly
discussing use of special master in complex patent cases where the prolonged
illness of the regular judge limited his availability and no other judge was
available to try the cases).
The Appointment Order is also defective because it is not limited to
pretrial and posttrial matters, such as enforcing a court-determined
injunction. Fed. R. Civ. P. 53(a)(1)(C). Rather, it delegates to the special
masters the core judicial tasks of drawing constitutional lines and crafting
injunctive relief around them. Applying constitutional standards to facts that
have already been established at trial and determining appropriate injunctive
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relief are unquestionably within the province of the district court. In deferring
its remedial jurisdiction to special masters, the district court has
impermissibly bypassed the difficult questions of what the minimum
constitutional requirements are and how to comply with them. Such
sweeping delegations of power to the Special Master are improper. See City
of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 145 (2d Cir. 2011)
(vacating injunction that required defendants to adopt those practices that
in the opinion of the Special Master serve to prevent in whole or in part the
illegal sale of firearms).
For example, Plaintiffs primary complaint with respect to the general
class of all PMC children is that conservatorship caseworkers have excessive
caseloads. But the district court expressly declined to determine the point at
which caseloads become constitutionally excessive. Ex.5, at 164.4 Instead, it
delegated that crucial legal determination to the special masters. Ex.5, at 164,
251. Thus, this is a case in which the parties rights and duties will be
determined, not merely enforced, by the special master. United States v.
Microsoft Corp., 147 F.3d 935, 954 (D.C. Cir. 1998). By charging the special
masters with the core judicial function of drawing constitutional lines, the
district court has used them to displace the court in contravention of FRCP
53. La Buy, 352 U.S. at 256.

The district court likely declined to make that determination because Plaintiffs caseload expert testified only as to best practices for caseloads and could not support Plaintiffs preference for a constitutional threshold of 25 children per caseworker. Ex.21.

10

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B. The Appointment Order Directs the Special Masters to


Apply the Wrong Constitutional Standard.
The district court also clearly abused its discretion by directing the special
masters to apply an incorrect constitutional standard. The Appointment
Order specifically directs the special masters to formulat[e], monitor[ ], and
creat[e] an Implementation Plan in conjunction with the Court so as to . . .
bring[ ] the State into compliance with constitutional standards of care. Ex.10, at
1-2 (emphasis added). According to the district court, foster children have a
Fourteenth Amendment substantive due process right to be free from an
unreasonable risk of harm. Ex.5, at 17. Thus, the constitutional standard that
the special masters are to apply is ameliorating unreasonable risk of harm in
the PMC.
That standard, however, is inconsistent with the constitutional standard
that this Court has previously announced. In Hernandez v. Texas Department
of Protective and Regulatory Services, the Court held that children in foster care
have a right to personal security and reasonably safe living conditions. 380
F.3d 872, 880 (5th Cir. 2004); see also Hall v. Smith, 497 F. Appx 366, 377
(5th Cir. 2012) (per curiam). That standard is clear, direct, and readily
understandable. The limited constitutional right described in Hernandez does
not extend beyond bodily integrity and a reasonably safe environment. See
Hernandez, 380 F.3d at 881 (discussing the risk of severe physical abuse to a
foster childs bodily integrity) (emphasis added).

11

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The district court acknowledged the personal security and reasonably


safe living conditions standard from Hernandez, but it reframed the standard
as the right to be free from an unreasonable risk of harm. Ex.5, at 15. That
is a substantive revision of the Hernandez standard, not merely a paraphrasing
of it. The district courts expansion of the relevant constitutional right ignores
this Courts admonition to resist the temptation to augment the substantive
reach of the Fourteenth Amendment, Griffith v. Johnston, 899 F.2d 1427,
1435 (5th Cir. 1990), and the Supreme Courts reluctance to expand the
concept of substantive due process into unchartered area[s] that are
open-ended, Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992).
Reframing the constitutional right allowed the district court to look
beyond Hernandezs straightforward and limited articulation to other
jurisdictions more expansive formulations of what freedom from an
unreasonable risk of harm entails. The court looked to the Hawaii district
court in R. G. v. Koller, 415 F. Supp. 2d 1129, 1156 (D. Haw. 2006), to append
a broad right to protection from psychological . . . abuse; to the New York
district court in Marisol A. ex rel. Forbes v. Giuliani, 929 F. Supp. 662
(S.D.N.Y. 1996), to add a substantive due process right to be free from
unreasonable and unnecessary intrusions into their emotional well-being;
and to the Seventh Circuits decision in K.H. ex rel. Murphy v. Morgan, 914
F.2d 846, 851 (7th Cir. 1990), to include a protean constitutional obligation
to take steps to prevent children in state institutions from deteriorating

12

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


right articulated in Hernandez.
Plaintiffs experts included emotional insecurity, along with other poor
outcomes, among the risk of harms that all PMC children allegedly face. One
expert defined harm to include sexual, emotional, psychological, mental,
sociological harm. Ex.16, at 75, ll. 18-19. Another similarly defined harm
as emotional, physical, social, developmental hurt, injury. Ex.17, at 45, ll.
15-16. The district courts insistence that [t]here is no difference between
harm in general and harm to personal security and reasonably safe living
conditions, Ex.5, at 17, represents the kind of open-ended expansion of
substantive due-process rights that this Court and the Supreme Court have
prohibited.
The constitutional obligation to ensure personal security and reasonably
safe living conditions does not make DFPS strictly liable for the psychological well-being and emotional development of every child in foster care. As the
district court acknowledged, most foster children are already damaged when
they come into the system, Ex.18, at 155, ll. 21-22, and some are so damaged
that nothing good can be done, Ex.19, at 156, ll. 4-5. Yet the district courts
expansion of harm means that the special masters are being tasked with
enacting vast structural reforms that extend far beyond the standard articulated in Hernandez. Thus, any remedies in the Implementation Plan that the

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special masters devise will be impermissibly overbroad. Their effortsat tremendous expense to Texas taxpayerswill be useless in crafting an appropriate remedy because they will be based on an improper legal standard.
For example, the district court declared that frequent placement moves
can represent a violation of class members Fourteenth Amendment rights in
and of themselves. M.D. II, 294 F.R.D. at 53 (emphasis added). But placement
moves are often necessary to address a childs changing service needs, as the
expert testimony established and the district court acknowledged. Ex.20, at
156, ll. 24-25 ([T]o keep a child in a placement when they need something
else is a negative.); Ex.21, at 156, ll. 16-17, 22-23. (observing that children
that have significant issues act out in very strange ways, and sometimes [a
placement is] just not going to fit). The purported right to remain in a
particular placement indefinitely does not comport with Hernandez and is not
the constitutional standard in this Circuit.

II. Defendants Have No Adequate Remedy by Appeal.


The district courts Opinion grants Plaintiffs very limited injunctive relief
on one issue pertaining to a single subclass. Ex.5, at 245; see Ex.6, at 3-4
(discussing narrow interpretation). But the bulk of the district courts
contemplated injunctive relief, which the court has delegated to the special
masters to formulate, has not yet been finalized into an appealable order. That
injunctive relief is therefore interlocutory. Ex.5, at 246; Ex.10, at 8. To finalize
the injunction, the court still has to issue orders as necessary to remedy the
constitutional violations described in [the] Opinion. Ex.5, at 246. Towards
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that end, the court referred this case to special masters to craft, monitor, and
implement the necessary reforms. Ex.10, at 1.
Although the Appointment Order is neither a final judgment subject to an
ordinary appeal nor an appealable interlocutory order under 28 U.S.C.
1292(a), an aggrieved party may seek review of an order of reference by
permissive interlocutory appeal under 28 U.S.C. 1292(b), or by writ of
mandamus. See Clifford, 257 F.3d at 448 (holding that party is not required to
seek review of an order of reference by an interlocutory appeal under
1292(b) or a writ of mandamus but, rather, may seek review in an ordinary
appeal after final judgment); see also La Buy, 352 U.S. at 256 (holding that the
court of appeals was justified in finding the orders of reference were an abuse
of power under FRCP 53(b)). The district court denied Defendants motion
to certify the Appointment Order for a permissive interlocutory appeal under
28 U.S.C. 1292(b). Ex.11. The courts ruling has thus foreclosed the
interlocutory-appeal avenue and left mandamus as Defendants only option
for seeking immediate review.
This Court has determined that a writ of mandamus may issue to correct
a reference to a special master under FRCP 53(b) where there is no showing
that some exceptional condition requires it and the reference is so
palpably improper that the rules have been practically nullified. In re
Watkins, 271 F.2d 771, 773 (5th Cir. 1959) (quoting La Buy, 352 U.S. at 252
n.4, 256-58); accord Microsoft Corp., 147 F.3d at 956 (finding case devoid of
anything exceptional within the meaning of Rule 53(b) and granting
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mandamus to vacate the reference to a special master); Arthur Murray, Inc. v.


Oliver, 364 F.2d 28, 35 (8th Cir. 1966) (holding that, except as to the auditing
of plaintiffs books and records, the reference to a special master was so
inappropriate as to warrant mandamus relief). As shown above in section I,
the Appointment Order referring this case to special masters does not satisfy
the exceptional-condition standard of La Buy and warrants mandamus relief.
If Defendants must submit to the inappropriate reference to the special
masters, when no exceptional condition justifies the non-consensual
reference, the reference will have nullified their right to a full trial before a
constitutional court. The Appointment Order follows a fragmented process of
(1) preliminary trial to determine liability and the propriety of injunctive relief,
(2) reference to special masters to craft a remedial Implementation Plan that
draws constitutional lines, and (3) adoption of the Implementation Plan into a
final judgment. The harm of being denied a full trial on both liability and
remedy by an Article III judgethe inconvenience and expense of submitting
to an intrusive special-master processwill already have been done by the
time the fragmented process is completed and can be ordinarily appealed, and
the prejudice suffered cannot be undone. See In re Volkswagen of Am. Inc., 545
F.3d 304, 319 (5th Cir. 2008) (en banc).
The special masters role in formulating, monitoring, and creating an
Implementation Plan is extensive and includes sweeping investigative powers
and access to any of Defendants information, records, personnel, and reports
that the masters might deem helpful, subject only to assertions of privilege,
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other limitations on disclosure, or the FRCP. Ex.10, at 3. The court has


allowed the special masters to have unlimited communications with the
parties and their staff in aid of [the Appointment] Orders goals. Ex.10, at 5
(emphasis added). They may also require additional reports or studies from
the parties at any time. Ex.10, at 5 (emphases added).
The special masters exercise of their duties are guided by the broad goals
listed in the courts Opinion, Ex.10, at 3, which include, for example, such
open-ended directives as DFPS shall improve its programs and outreach for
children who will age out of foster care so that more children take advantage
of these programs, Ex.5, at 249, and [t]he Special Master shall recommend
any provision beyond the Courts Goals that are deemed necessary to cure the
States constitutional violations outlined in this Opinion, Ex.5, at 250. See
also Ex.5, at 251 (The Special Master shall recommend other provisions
deemed necessary to ensure that primary CVS caseworkers are able to protect
foster children from an unreasonable risk of harm.); Ex.5, at 252 (The
Special Master shall recommend other provisions deemed necessary to ensure
that RCCL protects foster children from an unreasonable risk of harm.);
Ex.5, at 254 (The Special Master shall recommend other provisions deemed
necessary to ensure that DFPSs placement array no longer causes an
unreasonable risk of harm to foster children.).
The special masters term of appointment is similarly open-ended. The
court has ordered that [t]he Special Masters shall serve until the Court
determines, upon Defendants application, that the Special Masters are no
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longer necessary. Ex.10, at 8. The special masters must commence their


duties no later than April 1, 2016. Ex.10, at 2. Their Implementation Plan is
due 180 days from the date of the Appointment Order (March 21, 2016), and
a hearing is to be held on that plan 210 days from the date of the Appointment
Order. Ex.10, at 2. If the court finds any parts of the plan lacking, it may ask
the special masters to recommend additional provisions at a later date.
Ex.10, at 3.
And their duties do not end with the formulation of the Implementation
plan. After the Implementation Plan hearing, the special masters may monitor
for an indefinite period Defendants efforts at effecting the Implementation
Plan. The court directs them to submit a report every 180 days concerning the
Defendants progress. Ex.10, at 4. There is no end date specified for the
monitoring function. Further, the masters monitoring reports may
recommend additional measures to enforce the Opinion and any subsequent
orders of the court. Ex.10, at 4-5.
The special masters compensation is also far-reaching. The court has set
their hourly rate at $345, plus reasonable expenses. Ex.10, at 6. Assuming both
masters work a 40-hour work week, that adds up to over $110,000 per
monthbefore expenses or the cost of assistants. One of the special masters
has sought judicial approval add a dozen team members, six of whose billing
rates exceed $300 per hour, to assist the special masters. Ex.36-37. Moreover,
the special masters may apply for additional expenses if they reasonably find
that additional services are required, and they may apply to increase their
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compensation. Ex.10, at 7. Given the open-ended nature of their appointment,


it is fair to say that the Appointment Order will force DFPS to pay millions of
dollars to transform the district courts vague injunction to immediately stop
placing PMC foster children in unsafe placements, Ex.5, at 245, into a
specific and appealable injunctiona task the court should perform.
Moreover, it is highly unlikely that Defendants will be able to recoup any costs
or fees paid to the special masters if the reference to the special masters is
overturned following a successful appeal of the final judgment. Nor will
Defendants recover the cost of the time wasted by their employees and
representatives

responding

to

the

special

masters

wide-ranging

investigations.
Without an interlocutory appeal or a mandamus, Defendants will have to
wait to avail themselves of the remedy of appeal from the final judgment to
challenge the reference to the special masters. And because Defendants
cannot recoup any fees they pay the special masters, paying the special
masters to craft an appealable final judgment would be a steep price for the
opportunity to prove that the masters never should have been appointed. See
Watkins, 271 F.2d at 775 (The remedy of an appeal from the final judgment
would scarcely be adequate, and if successful in overturning an adverse
judgment flowing from the reference, would, at the price of a third trial,
demonstrate, as presently contended, that only one was permitted.). Once
the masters have done (and been paid for) their work, there is little to be gained
by appealing their appointment. Waiting for a successful ordinary appeal is
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thus an inadequate remedy to the district courts improper Appointment


Order.
The district courts denial of Defendants request for certification of an
interlocutory appeal under 28 U.S.C. 1292(b), precluding that potential
avenue for appellate review, further supports the conclusion that Defendants
have no adequate remedy by appeal. See Prudential Ins. Co. of Am. v. U.S.
Gypsum Co., 991 F.2d 1080, 1083 n.4 (3d Cir. 1993) (noting preference that
petitioner first seek a 1292(b) application before filing a petition for a writ of
mandamus); see also Volkswagen, 545 F.3d at 319 (finding no adequate remedy
by appeal and noting that interlocutory review of transfer orders under 28
U.S.C. 1292(b) is unavailable); Clifford, 257 F.3d at 448 (stating that an
aggrieved party may seek review of an order of reference by an interlocutory
appeal under 1292(b) or by a writ of mandamus). Without mandamus relief,
the erroneous and abusive Appointment Order will lead to a wasteful and
costly use of resources. Because an appeal after a final judgment is inadequate,
and because a 1292(b) interlocutory appeal has been foreclosed by the
district court, mandamus is appropriate here.

III. Issuance of the Writ Is Appropriate in the Extraordinary


Circumstances Here.
The final requirement for the issuance of mandamus is met in this case.
As this Court observed, even if the first two prerequisites have been met, the
issuing court, in the exercise of its discretion, must be satisfied that the writ is
appropriate under the circumstances. Volkswagen, 545 F.3d at 311 (quoting
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Cheney v. U.S. Dist. Ct., 542 U.S. 367, 381 (2004)). Here, the improper
delegation of judicial tasks, together with concerns about the integrity of the
proceedings and federalism, justify issuance of the writ.
First, the writ will rectify the Appointment Orders improper delegation
of judicial tasks and provide needed guidance on an issue of great importance
beyond just this case. Rule 53(a) provides that non-jury cases shall be referred
to a special master only upon a showing that some exceptional condition
requires it. As shown above in part I, the Appointment Order is directed to
crafting an injunction that draws constitutional lines, a task that is
quintessentially judicial in nature. The Appointment Order therefore
effectively nullifies Rule 53 and denies Defendants the right to a full trial
before an Article III court. This Court has held that, under circumstances
where a delegation of judicial tasks is contrary to Rule 53, a writ of mandamus
is appropriate to effectively secure that right. See Watkins, 271 F.2d at 775.
Second, mandamus relief is also justified by the circumstances of this
case, which call into question the integrity of the proceedings. When a case is
solidly within the realm of an Article III courts duties of rendering an
effective injunction, it is inappropriate to refer that case based on the dubious
assumption that a special master will be a more effective and flexible
alternative to the court in crafting appropriate injunctive relief. Ex.5, at 245.
A special master whose experience and training lie in the area of social work is
not more familiar than a federal judge with the quintessential judicial task of
crafting injunctive relief to remedy alleged constitutional violations. Thus, it
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cannot be assumed that the special master will do a more effective job than a
judge would, particularly in light of the special masters unfamiliarity with and
lack of expertise on constitutional doctrine. And the notion that flexibility is
more desirable than close adherence to legal norms when constitutional rights
and duties are at issue is spurious. Assigning a special master the task of telling
the court what the Defendants constitutional obligations under the injunction
should be undermines the integrity of judicial decision-making.
Lastly, a writ of mandamus would be appropriate under these
circumstances because the case raises federalism concerns. This lawsuit
attempts to put Texass PMC under the indeterminately continuous control
of a federal judge, instead of the States elected representatives and executive
officers where it belongs. That Defendants are being forced to subsidize this
federal takeover without first having an opportunity to contest the findings
and conclusions underlying the putative injunctive relief only amplifies the
federalism concerns.
Besides the weighty concern of the district court abdicating its judicial
duty to craft the injunctive relief here, there is an equally weighty concern that
the work of the special masters will interfere with and perhaps annul the
extensive reform effort that has recently been undertaken at great expense to
Texas taxpayers. In 2014, DFPS engaged The Stephen Group (TSG), a
highly respected child-welfare consulting firm, to create a blueprint on
where to go in making improvements to the States foster-care system.
Ex.22; Ex.23; Ex.5, at 24. TSG was given unfettered access to [the] agency
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and a very open charge to review the agencys operations, Ex.23, and it
made an elaborate and voluminous operational review (917 pages in total) that
provided numerous recommendations for improvements, in many of the very
same areas of concern that the district court identified. Ex.22; Ex.24; Ex.25;
Ex.26; Ex.5, at 24. DFPS responded to TSGs review by initiating the
Transformation program, taking a phased approach to implementation of
TSGs recommendations. Ex.5, at 35; Exs.27, 28, 29, 30, 31.
Transformation should be given a chance to succeed, notwithstanding the
district courts skepticism of it. Ex.5, at 195-96. The court dismissed
Transformation because it saw no evidence that the reform, which was only
initiated a few weeks before trial, was working. Ex.5, at 196. The court further
stated that it would not place blind faith in DFPS in light of its failure to
reduce caseworker caseloads, and because the court found that
Transformation did not match up with Plaintiffs preferred solutions. Ex.5, at
196. This reasoning fails.
Defendants showed that Transformation builds upon but is different from
past reform efforts and has already started to improve the foster-care system,
Exs.32, 33, 34, 35, but the court simply chose to ignore that substantial
evidence. Nor should Transformation be disregarded simply because it does
not comport with Plaintiffs preferred policies. To the contrary, DFPS
professionals and government officials believe that TSGs recommendations
and Transformation is the best approach, and federal-court control may well
be antagonistic to the vast experience of the social-welfare professionals. Or
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it may needlessly duplicate the extensive recommendations by those


professionals, some of which have already been implemented but are now in
danger of not being given a chance to work. Simply put, the special masters
involvement needlessly complicates an already complex social-welfare arena
by adding another voice in the chorus of voices demanding change or reform,
which is unhelpful, undeserved, and unwanted.
The court is simply substituting its policy preferences for those of state
leaders and social-welfare professionals. The district courts award of
injunctive relief and appointment of a special master encroach upon terrain
that is rightfully the province of the State. See Horne v. Flores, 557 U.S. 433,
448 (2009) ([I]nstitutional reform injunctions often raise sensitive
federalism concerns. Such litigation commonly involves areas of core state
responsibility . . . .). Such federalism concerns further support the issuance
of a writ of mandamus in this case.

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Conclusion
The Court should grant mandamus relief and direct the district court to
vacate its Appointment Order and craft appropriate injunctive relief. In
addition, while a determination of this petition is pending, the Court should
stay any special-master proceedings arising from the Appointment Order.
Respectfully submitted.
Ken Paxton
Attorney General of Texas

Scott A. Keller
Solicitor General

Jeffrey C. Mateer
First Assistant Attorney General

JOSEPH D. HUGHES
Assistant Solicitor General

Office of the Attorney General


P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: (512) 936-1700
Fax: (512) 474-2697

Philip A. Lionberger
/s/ Philip A. Lionberger
Assistant Solicitor General
Counsel for Petitioners

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Certificate of Service
On March 31, 2016, this petition was served via CM/ECF on all registered
counsel and transmitted to the Clerk of the Court. On the same date, a paper
copy of this petition was sent to the Honorable Janis Jack, Senior Judge,
United States Courthouse, 1133 N. Shoreline Blvd., Corpus Christi, Texas
78401, via Federal Express. Counsel further certifies that: (1) any required
privacy redactions have been made in compliance with Fifth Circuit Rule
25.2.13; (2) the electronic submission is an exact copy of the paper document
in compliance with Fifth Circuit Rule 25.2.1; and (3) the document has been
scanned with the most recent version of Symantec Endpoint Protection and is
free of viruses.
/s/ Philip A. Lionberger
Philip A. Lionberger

26