On a Third Go-Around, Fifth Circuit Puts Down Its Chancellor’s Foot

In M.D. v. Abbott, No. 19-41015 (5th Cir. Oct. 16, 2020), the Fifth Circuit – while recognizing “the good faith of the district judge in this case” – wrests control over a statewide injunction of Texas’s foster-care system.

“Plaintiffs are a certified class of minor children in the permanent managing conservatorship (PMC) of the Texas Department of Family Protective Services. About ten years ago, they brought a series of § 1983 claims alleging that the Texas foster-care system violated their substantive due process right ‘to be free from an unreasonable risk of harm.’ M.D. ex rel. Stukenberg v. Abbott (‘Stukenberg I’), 907 F.3d 237, 243 (5th Cir. 2018).” The Fifth Circuit affirmed in part, but required modifications to the scope of the injunction.

On remand, the “district court … made additional modifications to the injunction. The state appealed again.” On the second appeal, the Fifth Circuit directted the district court to “begin implementing, without further changes, the modified injunction with the alterations we have made.” M.D. ex rel. Stukenberg v. Abbott (“Stukenberg II”), 929 F.3d 272, 281 (5th Cir. 2019). “Notwithstanding our specific instruction not to make ‘further changes’ to the injunction, the district court did just that” anyway. “The district court expanded the injunction again—this time enjoining the state “from moving any PMC child from their current . . . placement as a result of enforcement of the Court’s requirement for 24-hour awake-night supervision unless application is made to the Court . . . prior to [the] proposed discharge.”

In its third appearance before the Fifth Circuit, the panel has had enough. “It is black-letter law that a district court must comply with a mandate issued by an appellate court.” Plaintiff invoked the equitable doctrine that the district court has “the continuing duty and responsibility to assess the efficacy and consequences of its order.” But the Fifth Circuit isn’t having it, holding that “[t]o elevate general equitable principles over the mandate rule is to challenge the very principle of appellate review—including any number of other doctrines inherent in our judicial hierarchy, such as vertical stare decisis.”

The panel observes that “judges disagree on occasion over the proper exercise of equitable powers, just as judges disagree on occasion over the proper interpretation of statutes. When that happens, appellate courts must make the final decision—and once the decision is made, it must be followed. And that, of course, is the whole purpose of the mandate rule.”

The panel also rejects plaintiffs’ alternative argument that the modifications to the injunction were a legitimate “administrative measure” to assure the efficacy of the order. This too, the Fifth Circuit holds, does not warrant a departure from the mandate rule. “If it is necessary to modify an injunction in the face of a mandate that forbids all further changes, the solution is not for the district court to update the injunction on its own—but for the parties to litigate the matter to the extent our procedures permit ….  [I]f that seems like strong medicine, the lesson is for appellate courts to draft their mandates carefully, not for district courts to ignore established rules of appellate procedure.”

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