M.C. Moore v. Tangipahoa Parish School Boar

Case: 12-31218 Document: 00512111311 Page: 1 Date Filed: 01/14/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

_____________________ FILED

January 14, 2013

No. 12-31218

_____________________ Lyle W. Cayce

Clerk

M. C. MOORE, as father and next friend to minors Joyce Marie Moore, Jerry

Moore, and Thelma Louise Moore; HENRY SMITH, as father and next friend

to minors Bennie Smith, Charles Edward Smith, Shirley Ann Smith, and

Earline Smith,

Plaintiffs - Appellees

v.

TANGIPAHOA PARISH SCHOOL BOARD, a corporation,

Defendant - Appellee

v.

LOUISIANA BOARD OF ELEMENTARY AND SECONDARY EDUCATION;

LOUISIANA DEPARTMENT OF EDUCATION; JOHN WHITE,

Movants - Appellants

__________________________

Appeals from the United States District Court

for the Eastern District of Louisiana

U.S.D.C. No. 2:65-CV-15556

__________________________

Before JONES, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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In a longstanding pending desegregation case, the district court enjoined

certain non-party state actors (Appellants here) from implementing a recently

passed statute with respect to the defendant parish school board. The

Appellants filed an emergency motion seeking to stay a portion of a preliminary

injunction pending appeal. On December 14, 2012, we granted a temporary stay

pending further order of this court. We note that this matter comes before us as

a motions panel only on the question of whether a stay pending appeal should

be granted. The motion was filed as an emergency motion, with limited time for

briefing and consideration. Under the posture of the case as presented to us, we

are addressing only the question of whether the district court’s injunction order

should be stayed pending consideration of all arguments raised by the parties

– jurisdictional and otherwise – following full briefing and, if appropriate, oral

argument. In assessing whether to grant a stay, we necessarily must examine

the merits of the parties’ arguments. But, given the procedural posture of this

case, we emphasize that we do not intend to bind the ultimate merits panel

which will consider the matter following full appellate process. Additionally, we

determine that a full exposition of the law in this area is unnecessary and

inappropriate at this stage, so we will endeavor to be brief in our reasoning. For

the reasons stated below, we now GRANT the Appellants’ motion and STAY the

district court’s order pending appeal.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The desegregation plaintiffs and the Tangipahoa Parish School Board (“the

Board”) (collectively, “the Petitioners”) filed motions for the issuance of writs

pursuant to the All Writs Act, 28 U.S.C. § 1651(a), seeking injunctions against

the further implementation of certain provisions of Acts 1 and 2 of the 2012

Regular Session of the Louisiana Legislature (“Act 1” and “Act 2”) based on their

alleged interference with a court-ordered consent decree. The underlying

consent decree arose from a 1965 federal desegregation suit, Moore v.

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Tangipahoa Parish School Board, in which the district court issued an order

establishing certain student assignment and facilities requirements aimed at

assisting the Board in achieving unitary school system status.

The most relevant portion of the newly enacted law is the Student

Scholarships for Educational Excellence Act, LA. REV. STAT. ANN. §§

17:4011–:4025, implemented through Act 2. This Act creates a school-voucher

or scholarship program (“the Program”) that allows students in Tangipahoa

Parish (“the Parish”) to attend alternative public or private educational

institutions in lieu of attending their assigned underperforming public school in

the Parish. See LA. REV. STAT. ANN. §§ 17:4013, :4018. When students elect to

participate in the Program, Minimum Foundation Program (“MFP”) funds,

which are state funds intended for public education, are diverted from the

student’s assigned public school in the Parish to the alternative public or private

institution where the student is educated. See id. § 17:4016. At present, fifty of

the approximately 20,000 students in the Parish are participating in the

Program. The Petitioners allege that compliance with the court-ordered consent

decree requires them to receive full MFP funding and that the Program’s

diversion of MFP funds frustrates their ability to implement the provisions of

the decree.

On October 22, 2012, the district court ordered John White, Louisiana

Superintendent of Education (“Superintendent White”), the Louisiana

Department of Education (“the Department”), and the Louisiana Board of

Elementary and Secondary Education (“BESE”) (collectively, “the State”), “to

show cause . . . as to why a preliminary injunction should not be entered . . .

enjoining and prohibiting . . . further implementation of [the Program in the

Parish].” The district court also ordered the State to show “why a mandatory

preliminary injunction should not be entered . . . directing [the State] to

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immediately commence full MFP funding to the [Board] for each student on a

scholarship pursuant to the [Program].”

The State responded and during the November 26, 2012, hearing the

district court issued a preliminary injunction.1 As instructed by the court, the

Petitioners and the State submitted proposed orders consistent with the court’s

oral reasons. On November 28, 2012, the district court entered the Petitioners’

proposed order thereby enjoining the Program in the Parish.

The next day, the court denied the State’s request for a stay of the

preliminary injunction pending appeal. The State timely moved this court to

stay a portion of the preliminary injunction. See FED. R. APP. P. 8(a)(1)(C).

At the same time that the federal district court injunction process was

ongoing, a lawsuit challenging the constitutionality of the Program was pending

in a Louisiana state trial court. That case examines the validity of the Program

under the Louisiana state constitution. See La. Fed’n of Teachers v. Louisiana,

No. 612,733, slip op. at 2 (19th La. Dist. Nov. 30, 2012). The state trial court

found that the Program violates the state constitution by diverting public funds

from the state’s public schools to private entities. See id. This ruling may be

directly appealed to the Louisiana Supreme Court and, as discussed below, could

render this federal action moot.

II. STANDARD OF REVIEW

We review a district court’s denial of a stay pending appeal for abuse of

discretion. See Wildmon v. Berwick Universal Pictures, 983 F.2d 21, 23 (5th Cir.

1992); see also Beverly v. United States, 468 F.2d 732, 740 n.13 (5th Cir. 1972)

1

The district court enjoined the Student Scholarships for Educational Excellence Act,

LA. REV. STAT. ANN. §§ 17:4011–:4025, the Course Choice Program, LA. REV. STAT. ANN. §§

17:4002.1–:4002.6, and certain provisions of Act 1, which focus on teacher tenure and

accountability. Because the State requests a stay of the injunction only as it pertains to the

Program administered pursuant to the Student Scholarships for Educational Excellence Act,

we do not consider whether the injunction should be stayed as to these other provisions.

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(“[T]he accepted standard for review of such a stay is whether or not the trial

court abused its sound discretion in denying the stay.”). The factors for

evaluating the appropriateness of a stay pending appeal are well-established:

“(1) whether the stay applicant has made a strong showing that he is likely to

succeed on the merits; (2) whether the applicant will be irreparably injured

absent a stay; (3) whether issuance of the stay will substantially injure the other

parties interested in the proceeding; and (4) where the public interest lies.”

Hilton v. Braunskill, 481 U.S. 770, 776 (1987); see also Nken v. Holder, 556 U.S.

418, 426 (2009).

“The first two factors of the traditional standard are the most critical.”

Nken, 556 U.S. at 434. As the movant for a stay pending appeal, the State

carries the burden to satisfy the four factors, see Ruiz v. Estelle, 666 F.2d 854,

856 (5th Cir. 1982), and it is not entitled to the stay as a matter of right. See

Nken, 556 U.S. at 433.

III. DISCUSSION

We conclude that the State has met its burden of establishing that the

district court abused its discretion in denying the stay of the preliminary

injunction.2

A. Likelihood of Success on the Merits

The State must make “a strong showing that [it] is likely to succeed on the

merits.” Hilton, 481 U.S. at 776. In assessing this standard, “the movant need

not always show a ‘probability’ of success on the merits.” Ruiz v. Estelle, 650

F.2d 555, 565 (5th Cir. 1981) (citation omitted). “[I]nstead, the [State] need only

present a substantial case on the merits when a serious legal question is

2

As discussed above, this appeal presents an emergency motion to stay, which is being

decided on an abbreviated briefing schedule and within a limited time. We apply only the

standard governing whether a stay of the preliminary injunction should be granted.

Accordingly, nothing in our opinion should be read as an intent to bind the merits panel

determining whether the district court appropriately issued the injunction.

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involved and show that the balance of the equities weighs heavily in favor of

granting the stay.” Id.; see also Nken, 556 U.S. at 434 (noting that the movant

must show “[m]ore than a mere possibility of relief”). The State has

demonstrated that it is likely to succeed in establishing that the district court

improperly issued the preliminary injunction based on several grounds

including: (1) the district court’s lack of jurisdiction under the Eleventh

Amendment; (2) the Pullman abstention doctrine; and (3) the lack of evidence

establishing authority for the court to act pursuant to the All Writs Act.

1. Lack of Jurisdiction Based on Eleventh Amendment Immunity

The State has a strong likelihood of prevailing on its claim that the district

court did not have jurisdiction to issue the preliminary injunction because its

exercise of authority violated the State’s Eleventh Amendment sovereign

immunity. Absent a waiver of immunity by a state or through a federal statute,

the Eleventh Amendment protects states from suit in federal court regardless

of whether the suit seeks damages or injunctive relief. Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984); see also Quern v. Jordan, 440

U.S. 332, 337 (1979) (noting that this immunity guards a state from “a suit in

federal court by private parties seeking to impose a liability which must be paid

from public funds.”). “This bar remains in effect when State officials are sued

for damages in their official capacity” because “a judgment against a public

servant in his official capacity imposes liability on the entity that he represents.”

Kentucky v. Graham, 473 U.S. 159, 169 (1985) (internal quotation marks and

citations omitted); see also Edelman v. Jordan, 415 U.S. 651, 663 (1974) (“It is

also well established that even though a State is not named a party to the action,

the suit may nonetheless be barred by the Eleventh Amendment.”).

The principle of state sovereign immunity also prohibits subdivisions of a

state from seeking relief against state defendants in federal court. Harris v.

Angelina Cnty., Tex., 31 F.3d 331, 339 (5th Cir. 1994). Indeed, “we can think of

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few greater intrusions on state sovereignty than requiring a state to respond, in

federal court, to a claim for contribution brought by one of its own

[subdivisions].” Id. at 340 (citation omitted); see also Stanley v. Darlington Cnty.

Sch. Dist., 84 F.3d 707, 716 (4th Cir. 1996) (“It would be an unfathomable

intrusion into a state’s affairs—and a violation of the most basic notions of

federalism—for a federal court to determine the allocation of a state’s financial

resources. The legislative debate over such allocation is uniquely an exercise of

state sovereignty.”). In general, then, federal courts do not interfere in a state’s

disputes with its own political subdivisions.

Here, Petitioners seek injunctive relief against two state agencies, the

Department and BESE. Further, there is no claim that Superintendent White

has violated federal law or acted outside of his official capacity, and the State is

not a party to the consent decree. Accordingly, there is a significant likelihood

that the State can show the preliminary injunction offends Eleventh

Amendment immunity because an injunction against the Department, BESE,

or Superintendent White is effectively an injunction against the State.

The Petitioners’ statements in their briefing to the district court reveal the

true nature of their complaint. Specifically, the Board seeks to avoid “a

reduction in MFP funding” because “[t]he school board is in need of funding now”

and it “can ill afford to have the state reduce its share of MFP funding.” These

statements show that the Board does not seek an injunction to prevent violations

of federal law, but instead seeks such relief in order to prevent the

implementation of the state legislature’s decisions concerning education funding,

a quintessentially state issue. They also show that the essence of the relief

sought is not injunctive but rather monetary – enjoining the State from “failing

to pay” is little less than telling the State to pay.

In addition to requiring the State to address legislative decisions about

state funding in federal court, the district court thus required the State to

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respond to what is essentially a contribution claim by one of its own

subdivisions. Such disputes concerning the allocation of the state’s financial

resources fall within the purview of a state’s sovereign power, and requiring a

state to answer a claim for contribution – however disguised – from one of its

own subdivisions violates its Eleventh Amendment immunity. See Harris, 31

F.3d at 340; see also Kelley v. Metro. Cnty. Bd. of Educ. of Nashville & Davidson

Cnty., Tenn., 836 F.2d 986, 998 (6th Cir. 1987) (federal courts should not

“adjudicate an internal dispute [concerning funding for a desegregation order]

between a local governmental entity and the very state that created it.”).

Indeed, a school district cannot recover funds expended in compliance with a

desegregation order when the state is not a party to the desegregation order. See

United States v. Tex. Educ. Agency, 790 F.2d 1262, 1264-65 (5th Cir. 1986). Such

attempts to recover funding from a state ostensibly to comply with a

desegregation order to which it is not a party “smacks of an attempted end-run

around the [state] legislature’s allocation of state funds.” Id. at 1265.

The district court justified the issuance of the preliminary

injunction—which essentially serves as an award of monetary relief against the

State’s treasury—by noting that the Supreme Court “has curbed [the limitation

proscribing an award of money damages] in the case of a federal court giving

prospective injunctive relief against a state officer even though compliance with

the injunction will cost the state money in the future.” A district court is not

free to interfere in state spending decisions simply because raising and lowering

funding levels may have some incidental impact on a federal decree. The

injunction here is not aimed at preventing direct interference with a court-

ordered consent decree, but instead bars state officials from implementing a

state’s program and funding decisions because of their attenuated connection to

a consent decree. Unlike the cases relied on by the district court, this matter

does not involve a party seeking a state official’s compliance with federal law

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that will indirectly cost the state more money. See, e.g., Quern, 440 U.S. at 336,

349 (federal court has jurisdiction to order state officials to send notification to

class plaintiffs of the availability of an administrative remedy to recover public

benefits); Edelman, 415 U.S. at 668 (finding a federal court cannot require the

“payment of state funds, not as a necessary consequence of compliance in the

future with a substantive federal-question determination”). Furthermore the

district court’s reliance on Milliken v. Bradley is misplaced because, unlike here,

the state in Milliken was a party to the original desegregation order and was

found to be partially responsible for the segregation. 433 U.S. 267, 269, 289-90

(1977) (finding that federal court has jurisdiction to allocate costs between state

and local officials when ordering a school desegregation plan).

Put another way, the gravamen of Petitioners’ claims is an attempt to

avoid decreases in education funding. Masking it as a concern about compliance

with the district court’s desegregation order does not change the fundamental

nature of the injunction as one directly affecting a state’s sovereign decision-

making about state spending. This approach, then, conflicts with the State’s

sovereign immunity by requiring it to answer what is essentially a claim for

contribution from one of its subdivisions in federal court. Accordingly, the State

has a strong likelihood of success in showing that the district court’s issuance of

the preliminary injunction violated the State’s Eleventh Amendment sovereign

immunity.3

2. Pullman Abstention

3

The extent of the Board’s argument concerning this issue on appeal lies in its

assertion that the injunction does not run afoul of the Eleventh Amendment to the extent that

it enjoins “John White in his official capacity.” The Board does not cite any authority for this

conclusion. The fact that Superintendent White is enjoined in his official capacity does not

cure the potential affront to Eleventh Amendment immunity in this matter. See Kentucky v.

Graham, 473 U.S. 159, 169 (1985); see also Kelley, 836 F.2d at 989 (“The applicability of the

bar of sovereign immunity simply is not affected by the circumstance that the nominal

defendant is an individual state official . . . .” (citation omitted)).

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“[T]he Supreme Court [has] ‘instructed federal courts that the principles

of equity, comity, and federalism in certain circumstances counsel abstention in

deference to ongoing state proceedings.’” See Wightman v. Tex. Supreme Court,

84 F.3d 188, 189 (5th Cir. 1996) (quoting Fieger v. Thomas, 74 F.3d 740, 743 (6th

Cir. 1996)). Based on the application of this principle in Railroad Commission

v. Pullman Co., 312 U.S. 496 (1941), the State is likely to prevail in its claim

that the district court should not have exercised jurisdiction in light of the

pending state-court action challenging the validity of the Program under

Louisiana’s constitution.4

A federal court should generally abstain from exercising jurisdiction in a

matter when an unsettled area of state law has an effect on the outcome of a

federal constitutional claim or would render a decision on the federal issue

unnecessary. Pullman, 312 U.S. at 496; see, e.g., Askew v. Hargrave, 401 U.S.

476, 478 (1971) (explaining that when the outcome of a case in state court could

remove the need to decide a federal issue a federal court should stay the

proceeding until the state court has rendered judgment). Although “abstention

[i]s applicable only in narrowly limited special circumstances,” the doctrine

should be applied when “[a] state court decision . . . could conceivably avoid any

decision [of the federal question] and would avoid any possible irritant in the

federal-state relationship.” Reetz v. Bozanich, 397 U.S. 82, 86-87 (1970) (internal

quotation marks and citation omitted); Word of Faith World Outreach Ctr.

Church, Inc. v. Morales, 986 F.2d 962, 967 (5th Cir. 1993) (citation omitted)

(“Pullman abstention . . . is addressed to the inappropriateness of federal court

4

Because we conclude that Pullman abstention is appropriate, we need not address the

abstention doctrine applied in Younger v. Harris, 401 U.S. 37 (1971). Younger abstention

applies when: “(1) the dispute . . . involve[s] an ongoing state judicial proceeding, (2) an

important state interest in the subject matter of the proceeding [is] implicated, and (3) the

state proceedings . . . afford an adequate opportunity to raise constitutional challenges.” Tex.

Ass’n of Bus. v. Earle, 388 F.3d 515, 519 (5th Cir. 2004) (internal quotation marks and citation

omitted).

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resolution of difficult or unsettled questions of state law and the undesirability

of reaching constitutional questions that might be mooted by the application of

state law.”). This doctrine “[i]s based on ‘the avoidance of needless friction’

between federal pronouncements and state policies.” Reetz, 397 U.S. at 87

(quoting Pullman, 312 U.S. at 500).

This matter presents the very conflict that Pullman abstention seeks to

avoid—i.e., “‘needless friction’ between [a] federal pronouncement[] and state

policies”—as it involves a federal court enjoining a state’s legislatively-

determined funding decisions prior to allowing the state to consider whether

such decisions comport with its own constitution. See id. The State thus has

shown a strong likelihood of succeeding on the merits of its claim that Pullman

abstention applies because the resolution of an unsettled area of state

law—whether the Program’s transfer of public-education funds to non-public

schools offends Louisiana’s state constitution—could obviate the need to consider

the federal issue of whether the Program renders the Petitioners unable to

comply with the court-ordered consent decree. See Nationwide Mut. Ins. Co. v.

Unauthorized Practice of Law Comm., 283 F.3d 650, 653 (5th Cir. 2002). Such

a result is certainly possible in light of a recent decision by a Louisiana district

court holding that the Program violates the state constitution. See La. Fed’n of

Teachers, No. 612,733, slip op. at 2.

In sum, the Petitioners’ claims that the Program interferes with the

consent decree are “‘entangled in a skein of state law that must be untangled

before the federal case can proceed[.]’” See Harris Cnty. Comm’rs Court v.

Moore, 420 U.S. 77, 88 (1975) (quoting McNeese v. Bd. of Educ., 373 U.S. 668,

674 (1963)). Accordingly, the State has a strong likelihood of establishing that

the district court erred in exercising jurisdiction in light of the Pullman

abstention doctrine.

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3. Lack of Evidence Establishing Authority to Act Pursuant to the

All Writs Act

Examining the proceedings in the district court prior to issuance of the

injunction, we are further persuaded of the State’s likelihood of success on the

merits based on the district court’s lack of authority to act pursuant to the All

Writs Act, which serves as the district court’s self-proclaimed basis for

jurisdiction. The All Writs Act provides “power [to] a federal court to issue such

commands . . . as may be necessary or appropriate to effectuate and prevent the

frustration of orders it has previously issued in its exercise of jurisdiction

otherwise obtained.” United States v. N.Y. Tel. Co., 434 U.S. 159, 172 (1977); see

also 28 U.S.C. § 1651(a). As the district court appropriately recognized, this

power may be applied to individuals or entities that were not parties in the

underlying litigation when their conduct frustrates the court’s order. See N.Y.

Tel., 434 U.S. at 174 (citation omitted). “This authority, though, ‘is firmly

circumscribed, its scope depend[s] on the nature of the case before the court and

the legitimacy of the ends sought to be achieved through the exercise of the

power.’” Netsphere, Inc. v. Baron, No. 10-11202, 2012 WL 6583058, at *6 (5th

Cir. Dec. 18, 2012) (quoting ITT Cmty. Dev. Corp. v. Barton, 569 F.2d 1351,

1358-59 (5th Cir. 1978)).

Three elements must be satisfied for a district court to act pursuant to this

statute, and the burden of establishing them in the district court is on the

Petitioners. See Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004).

First, “the party seeking issuance of the writ [must] have no other adequate

means to attain the relief he desires.” Id. (alteration in original) (citation and

internal quotation marks omitted). When alternative means of relief are

available, the court should not issue a writ. See, e.g., Pa. Bureau of Corr. v. U.S.

Marshals Serv., 474 U.S. 34, 43 (1985) (finding the use of the All Writs Act to

compel transportation of prisoners was inappropriate because “[a]lthough that

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Act empowers federal courts to fashion extraordinary remedies when the need

arises, it does not authorize them to issue ad hoc writs whenever compliance

with statutory procedures appears inconvenient or less appropriate.”). Here, the

Petitioners have alternative means of relief apart from reliance on a writ. In

addition to seeking relief from the state legislature in the form of additional

funding or repeal of the Program, the Petitioners may avail themselves of relief

in state court. In fact, proceedings in the state court already suggest that

alternative relief would be available in light of a recent decision from a state

district court holding that the Program’s disbursement of education funds to

private institutions violates Louisiana’s state constitution. See La. Fed’n of

Teachers, No. 612,733, slip op. at 2.

Second, the party seeking the writ must meet its “burden of showing that

[its] right to issuance of the writ is clear and indisputable.” Cheney, 542 U.S. at

381 (citation and internal quotation marks omitted). The State has a strong

argument that the Petitioners have not established their “clear and

indisputable” right to the writ. Generally, a writ is appropriate when it

addresses a direct affront to a district court’s order. See, e.g., United States v.

Hall, 472 F.2d 261, 262-64 (5th Cir. 1972) (finding an injunction under the All

Writs Act proper in the desegregation context to prevent a member of a militant

group from intentionally violating a court order denying his entry into a high

school campus).

Petitioners contend that the Board faces a large, general budget shortfall

and that any decrease in funding due to students electing to attend schools other

than their assigned public school will adversely affect its “ability to implement”

the requirements of the consent decree. In the district court, Petitioners had the

burden to provide evidence to support their contentions. Instead, the Board

presented general financial data and budgets that provide a general and

superficial overview of the school’s funding mechanism, as well as a few specific

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budget needs that are unrelated to schools affected by the Program.5 The Board

further relies on affidavits from administrators at two of the private schools

participating in the Program to suggest that these schools intend to expand,

which in turn will adversely affect the Board’s ability to implement the consent

decree. This evidence—based merely on general financial information and

speculation that the Program will eventually expand to a point that causes them

harm—fails to demonstrate immediate irreparable harm warranting relief.6 See

Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985)

(“Speculative injury is not sufficient; there must be more than an unfounded fear

on the part of the applicant.” (citation omitted)). The “evidence” was nothing

more than a generalized concern that an already cash-strapped school board

would find itself with fewer resources. No specifics about the particular

decreases and the particular impact was provided to the district court.

Third, assuming the petition meets the first two requirements, a court

should exercise discretion before issuing a writ to ensure it “is appropriate under

the circumstances.” Cheney, 542 U.S. at 381 (citation omitted). The All Writs

Act does not grant blanket authority to enjoin state conduct in matters related

to a state’s funding of its subdivisions. Instead, the authority under the All

Writs Act “is to be used sparingly and only in the most critical and exigent

5

For instance, in its Reply Memorandum and Listing of Supporting Documentation

filed in the district court on November 19, 2012, the Board included an exhibit discussing the

projected costs to improve the Kentwood High School facility. Kentwood High School,

however, is not one of the “assigned schools” or “last attending school” for any of the fifty

students participating in the Program.

6

Indeed, the little evidence presented is to the contrary. Prior to filing its Motion for

Issuance of Writs, the Board requested a modification of the consent decree to authorize

approximately $1.4 million of improvements to five schools, none of which are the “assigned

school” or the “last attending school” of the fifty students enrolled in the Program. This

modification of the consent decree is significant because it suggests that while the Board

claims it cannot sustain the loss of MFP funding associated with the Program, the Board’s

budget still allows it to modify the consent to decree in order to receive authorization to

allocate additional money to schools unaffected by the Program.

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circumstances.” Wisc. Right to Life, Inc. v. Fed. Election Comm’n, 542 U.S. 1305,

1306 (2004) (citation and internal quotation marks omitted).

The State has made a strong showing that it is likely to succeed on the

merits of the argument that the district court’s reliance on the All Writs Act was

not appropriate based on the circumstances. Petitioners’ arguments during the

November 26 district court hearing suggest nothing more than that the Program

frustrates the consent decree by interfering with their calculations based on

projections in school growth and student attendance. It is difficult to imagine,

however, that the Program, which affects less than one quarter of one percent

of the Parish’s students, will have a substantial enough effect on the Board’s

calculations to warrant the “extraordinary remedies” provided by the All Writs

Act.

The Board’s rationale leads to the conclusion that whenever a state

legislature’s actions result in an indirect reduction in education funding a

federal court can enjoin the implementation of the funding decision so long as

the party seeking the writ merely shows that it is in need of funding or that a

change in funding could limit its financial resources. Such a broad use of

authority is not compatible with the Supreme Court’s admonition that the All

Writs Act is an extraordinary form of relief.7

B. Irreparable Harm

7

The district court also purported to act pursuant to its inherent powers. The cases

relied upon by the district court in the exercise of this power, however, involved the

enforcement of consent decrees against parties who agreed to be bound by the decrees. See

e.g., Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 435-36 (2004) (enforcing consent decree

against state officials who were parties to the original decree); United States v. City of Miami,

Fla., 664 F.2d 435, 436 (5th Cir. 1981) (limiting the effect of a consent decree on a party who

did not agree to the decree). Accordingly, even if the Board presented adequate evidence that

the Program conflicted with the consent decree, the All Writs Act—and not the court’s

inherent power—would serve as the proper source of authority to protect a consent decree from

the actions of a non-party to the decree.

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The irreparable injury to the State caused by the preliminary injunction

weighs in favor of a stay pending appeal. See Hilton, 481 U.S. at 776. As the

State points out, the immediate implementation of the injunction will cause

irreparable harm to the fifty students participating in the Program because the

failure to make timely scholarship payments to the students’ schools would

result in the children having to relocate during the school year. This result

would frustrate the State’s program thereby causing harm to it and the students

that the State seeks to serve. The injunction causes further direct irreparable

harm against the State as it deprives the State of the opportunity to implement

its own legislature’s decisions concerning education funding and forces it to

answer for claims in federal court that are likely barred by Eleventh

Amendment immunity.

C. Substantial Injury to Petitioners and Public Interest

The factors discussed above—a substantial likelihood of success on the

merits and the irreparable harm to the State—are the most important. Nken,

556 U.S. at 434. The final two factors—the potential for substantial injury to the

Petitioners and the public interest—are less significant in our analysis. We

recognize that the Board may face an injury if it is unable to comply with the

consent decree, which could affect its ability to become a unitary school system.

The evidence presented in the district court, however, belies the claim of injury

to the Petitioners, at least at this point.

Finally, the public interest factor leans in favor of the State. Enjoining a

State from implementing its own law while an appeal is pending before a federal

court invokes significant concerns related to principles of federalism and comity.

These concerns are especially significant here where the State is enjoined from

implementing its education funding due to an appeal of a federal court action

involving claims for which the State is likely entitled to Eleventh Amendment

immunity.

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IV. CONCLUSION

For the reasons discussed above, we GRANT the Appellants’ motion to

STAY a portion of the preliminary injunction pending appeal.

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DENNIS, Circuit Judge, dissenting:

In the motion before us, the movant state officials, the Louisiana Board of

Elementary and Secondary Education (“BESE”), the Louisiana Department of

Education, and John White, State Superintendent of Education (collectively, “the

State Officials”), have requested and are clearly entitled to have this court

reverse the district court’s judgment and direct that court to abstain from

further proceedings pending a potentially dispositive decision by the Louisiana

Supreme Court in accordance with Railroad Commission v. Pullman Co., 312

U.S. 496 (1941). The majority recognizes that the criteria for Pullman

abstention have been satisfied but nevertheless refuses to refrain from

continuing this federal litigation, to reverse the district court’s judgment, and to

order federal-court abstention in this case. I emphatically disagree. A state trial

court has declared the school-voucher law unconstitutional under the Louisiana

State Constitution, that decision has been appealed directly to the Louisiana

Supreme Court, and the state’s highest court will resolve that state

constitutional issue soon. Accordingly, because the parties, and even the

majority, agree that a Louisiana Supreme Court affirmance of the state trial

court’s judgment will moot this federal litigation entirely, I respectfully dissent

from the majority’s refusal to reverse the district court’s judgment and order it

to abide by Pullman abstention. There is no good reason for the continuation of

this (potentially unnecessary) federal litigation at this time. We are qualified

and able to make a decision regarding Pullman, we unanimously agree that the

criteria for that abstention have been satisfied, and the rationale underlying

that doctrine—reducing friction between the federal and state judiciaries when

important questions of state law are involved—calls strongly for the doctrine’s

invocation here.

Aside from the majority’s unfortunate decision to continue this federal

litigation even though it concedes that Pullman abstention should be ordered,

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I also disagree strongly with the majority’s erroneous reasoning in granting a

stay of the district court’s judgment pending appeal. First, the majority

incorrectly assumes that the doctrines of Pullman abstention and Eleventh

Amendment sovereign immunity from federal suit may be invoked—not to

terminate or halt this litigation—to enhance the State Officials’ likelihood of

success on the merits in the stay-pending-appeal analysis. This assumption is

plainly wrong. Those independent doctrines may be used to end or suspend a

federal suit but not to enhance its likelihood of success on the merits on appeal

for stay purposes. Second, the majority not only abuses process by refusing to

invoke Pullman immediately but also incorrectly decides that the State Officials

will be able to invoke Eleventh Amendment immunity from federal suit before

the merits panel in this appeal. As the State Officials concede in their motion,

however, the State of Louisiana is not a party of record or otherwise involved in

the underlying litigation. Rather, in this case, the district court, enforcing its

forty-five-year-old consent decree and desegregation order against the

Tangipahoa Parish School Board, prospectively enjoined the State Officials from

executing and applying a state law so as to violate the federal constitution by

frustrating, interfering with, and threatening to dismantle the desegregation

order, based on the Fourteenth Amendment and Brown v. Board of Education,

that requires and establishes terms and conditions for the conversion of the

parish public-school system from a racially discriminatory dual system to a

constitutionally unitary system. It is well settled that prospective injunctive

relief against state officers, as opposed to the state per se, which bars them from

violations of the federal constitution or laws, does not contravene state sovereign

immunity from federal court suits. See, e.g., Milliken v. Bradley, 433 U.S. 267,

289-90 (1977); Ex parte Young, 209 U.S. 123 (1908). Third, the majority errs in

its conclusion that the district court misused the All Writs Act to issue the

preliminary injunction against the State Officials. Finally, a correct application

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of the factors to be considered for a stay pending appeal under Nken v. Holder,

556 U.S. 418, 434 (2009), shows clearly that the State Officials are not entitled

to a stay of the district court’s judgment pending appeal, even if the majority

erroneously refuses to order federal-court abstention under Pullman.

BACKGROUND

In 1967, the Court of Appeals for the Fifth Circuit, then engaged in

overseeing the desegregation of numerous school districts in the South, laid

down the following requirement in an en banc decision: “[t]he defendants shall

provide remedial education programs which permit students attending or who

have previously attended segregated schools to overcome past inadequacies in

their education.” United States v. Jefferson Cnty. Bd. of Educ., 380 F.2d 385, 394

(5th Cir. 1967) (en banc). That same year, the District Court for the Eastern

District of Louisiana, in Moore v. Tangipahoa Parish School Board, adopted a

school-desegregation consent decree finding that system to be an

unconstitutional racially dual system and required the school board to convert

it to a unitary non-racially discriminatory system. See 290 F. Supp. 96, 96 (E.D.

La. 1968) (citing Brown and Jefferson County). On March 4, 2010, following a

series of earlier modifications, the district court, pursuant to the consent decree

and after hearings and discussions with interested parties, issued an order (Rec.

Doc. No. 876) establishing a desegregation order, under which the Tangipahoa

Parish School Board, when it reached full compliance, would achieve unitary

school-system status and obviate the need for further judicial supervision. To

this end, the consent decree and order detailed numerous obligations with which

the school board must comply, including: the construction of new schools and the

enhancement of existing facilities; the creation of new magnet programs; new

teacher assignments, certifications, and training; reporting and monitoring

requirements to ensure compliance with the court’s order, and the design and

implementation of a parish-wide school taxing district for the issuance of debt

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to finance capital improvements. Furthermore, the district court’s order detailed

a student-assignment plan predicated on the ordered expenditures detailed

above and expressly assumed receipt of MFP funding to satisfy the obligations

imposed. See Doc. 876.

Subsequently, the Louisiana Legislature enacted Acts 1 and 2 of the 2012

Regular Session establishing a school-voucher program authorizing the

disbursement of public funds, diverted from Minimum Foundation Program

(“MFP”) funding, to enable eligible schoolchildren to leave Tangipahoa Parish

public schools to attend private, or non-public, schools of their choice. See LA.

REV. STAT. § 17:4016. The MFP is a fund of public money dedicated to public

primary and secondary school education and determined by collaboration

between the legislature and the BESE. It is then distributed according to a

formula also derived from that collaboration to each of the sixty-nine public

school systems in the state. Importantly, the provisions of the Louisiana State

Constitution do not authorize the legislature to unilaterally alter the dedication

or the distribution formula. See LA. CONST. art. VIII, § 13(B); La. Fed’n of

Teachers v. Louisiana, No.612,733, Slip Op. at 22-34 (19th. Dist. Nov. 30, 2012).

MFP funding, in conjunction with the operation of Act 2, is a zero-sum

exercise such that MFP money, intended for public-school use, diverted for use

by non-public schools deprives public-school districts such as Tangipahoa of the

use of such funds. Currently, during the first year of the voucher program, fifty

children in Tangipahoa Parish receive school-voucher funds and attend non-

public schools. However, this number will surely grow as non-public schools

expand and new non-public schools are opened. In particular, the district court

observed that thirty-two of Tangipahoa’s public schools—representing a

“considerable” number of students in the district—currently receive “C,” “D,” or

“F” grades, entitling students at those schools to receive a voucher enabling

them to attend school elsewhere. Reimbursement for such vouchers comes from

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MFP funding the public schools would otherwise receive and, furthermore,

corresponds with private-school tuition, which a private school is free to increase

should it so desire. Doc. 1066, at 13 n.2. Thus, the district court determined

that Act 2 threatens to undermine the Tangipahoa Parish desegregation consent

decree and the unitary school system plan of conversion by interfering with the

court-mandated obligations laid out in the 2010 consent decree.

On September 24, 2012, the desegregation plaintiffs and the Tangipahoa

Parish School Board filed a “Motion for Issuance of Writs Pursuant to the All

Writs Act” (Doc. 1021, Exhibit “D”) to enjoin the State Officials’ implementation

of section 17:4016 of the Louisiana Revised Statutes, which provides for a local-

share allocation in the calculation of funding to city and parish school systems

for students in Tangipahoa Parish attending non-public schools under the

school-voucher program. The Tangipahoa Parish School Board claims that the

school voucher program’s diversion of enrollment and public funding to non-

public schools impedes the Board’s “ability to implement” the requirements of

the consent decree (Doc. 876) in the areas of student assignment and facilities.

On October 22, 2012, the district court issued an “Order and Reasons”

(Doc. 1066, Exhibit “E”) compelling the State Officials to appear before the court

on October 30, 2012 and “show cause, if any they can, as to why a preliminary

injunction should not be entered herein restraining, enjoining and prohibiting

the State Officials’ further implementation of LA. R.S. § 17:4016 that otherwise

would off-set the Tangipahoa Parish School District’s local contribution against

Minimum Foundation Program Funding to be allocated” to Tangipahoa and why

a mandatory preliminary injunction should not enter ordering the State Officials

to immediately commence funding to Tangipahoa if the voucher-funds recipient-

students return to public schools.

Following argument at a hearing on November 26, 2012, the district court

orally denied the State Officials’ motions, granted a preliminary injunction, and

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instructed the parties to submit proposed orders consistent with the court’s oral

reasons. On November 28, 2012, the district court entered the Order proposed

by the desegregation parties (Doc. 1063, Exhibit “B”) thus broadly enjoining the

School Officials from implementing the school-voucher program in Tangipahoa

Parish.

The following day, November 29, 2012, the district court issued an Order

(Doc. 1065, Exhibit “C”) denying the State Officials’ request for a stay pending

appeal in part because “state law, not imposed by the preliminary injunction,

provides an available option for reallocating agency resources. See LA. R.S.

24:653(F).” On November 30, 2012, the district court issued an “Order and

Written Reasons” (Doc. 1066, Exhibit “E”) denying the State Officials’ “Motion

To Set Aside the Granting of the Two All Writs Motions” (Plaintiffs’ Doc. 1031;

Defendants’ Doc. 1021).

The State Officials, in accordance with Rule 8 of the Federal Rules of

Appellate Procedure, moved this court to stay a portion of the preliminary

injunction rendered November 28, 2012. Considering the time-sensitive issues

raised herein, we granted a temporary stay pending further order of this court

to allow us time to consider the parties’ motions and arguments and to act upon

them effectively and expeditiously.

DISCUSSION

A. Pullman Abstention Should Be Ordered

As this court has noted, “Pullman abstention[] . . . is addressed to . . . the

undesirability of reaching constitutional questions that might be mooted by the

application of state law.” Word of Faith World Outreach Ctr. Church, Inc. v.

Morales, 986 F.2d 962, 967 (5th Cir. 1993). For instance, “[w]here there is an

action pending in state court that will likely resolve the state-law questions

underlying the federal claim, [the Supreme Court has] regularly ordered

abstention.” Harris Cnty. Comm’rs. Court v. Moore, 420 U.S. 77, 83 (1975)

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(collecting cases). Further, “when the state-law questions have concerned

matters peculiarly within the province of the local courts, [the Court has]

inclined toward abstention.” Id. at 83-84 (citations omitted). In this regard,

[a]mong the cases that call most insistently for abstention are those

in which the federal constitutional challenge turns on a state

statute, the meaning of which is unclear under state law. If the

state courts would be likely to construe the statute in a fashion that

would avoid the need for a federal constitutional ruling . . . , the

argument for abstention is strong.

Id. at 84. Thus, when there is a “substantial uncertainty as to the meaning of

state law” and “a reasonable possibility that the state court’s clarification of

state law might obviate the need for a federal constitutional ruling,” the district

court must abstain from adjudicating the federal constitutional claim. Erwin

Chemerinsky, FEDERAL JURISDICTION § 12.2, at 818 (6th ed. 2012). This

proposition is mirrored in our precedent, under which, if a decision on the state

law issue would make adjudication of the federal constitutional challenge

unnecessary, the district court must abstain. See Nationwide Mut. Ins. Co. v.

Unauthorized Practice of Law Comm., 283 F.3d 650, 653 (5th Cir. 2002). As

described in more detail below, Pullman abstention is clearly and immediately

warranted in this case. Indeed, the majority agrees that Pullman abstention is

called for but treats it as an optional, malleable doctrine that it may delay and

merge with its determination of whether the appeal is likely to succeed under

the Nken four-factor test. This is grievous, compounded error. Because of the

nature of the Pullman doctrine, it applies only to decide when federal courts

should abstain or refrain from further adjudication of a claim because its

resolution may be mooted by a state-court decision and not, as the majority

misuses it, to predict whether a defense on the merits will be successful on

appeal under Nken. Pullman abstention is designed to stop potentially

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unnecessary federal litigation in its tracks and therefore should have nothing to

do with perpetuating federal litigation on appeal.

1.

In the case before us, the criteria warranting Pullman abstention plainly

have been met. First, a state trial court in Baton Rouge has declared Act 2

invalid under the Louisiana State Constitution as an unauthorized reassignment

of students and diversion of MFP funds away from public schools and into non-

public schools,1 and that decision is now pending on direct appeal to the

Louisiana Supreme Court.2 The State Officials, as well as the majority, agree

that if the state supreme court affirms the trial court’s decision, this federal

litigation will be moot, because in the absence of the 2012 state law there will be

no diversion of public funds for private tuition or reassignment of students to

non-public schools. Given that the parties challenging Act 2’s constitutionality

prevailed in the state trial court, there is sufficient uncertainty as to the

meaning of state law (namely, whether Act 2 comports with the commands of the

Louisiana State Constitution). Especially noteworthy in this regard is that the

state court ruled Act 2 unconstitutional on the basis of a unique provision of the

Louisiana State Constitution—one without analog in the U.S. Constitution

—providing that funds dedicated jointly by the legislature and the BESE under

the MFP formula for Louisiana’s public-schools systems must be directed to

public parish and city school boards that administer those systems and may not

be diverted unilaterally by the legislature to non-public schools. See La. Fed’n

of Teachers v. Louisiana, No. 612,733, Slip Op. at 22-34 (19th Dist. Nov. 30,

2012); see also LA. CONST. art. VIII, § 13(B)-(C). As stated in a noted treatise,

1

See Lauren McGaughy, Jindal Voucher Overhaul Unconstitutionally Diverts Public

Funds to Private Schools, Judge Rules, THE TIMES-PICAYUNE, Nov. 30, 2012,

http://www.nola.com/politics/index.ssf/2012/11/jindal_voucher_overhaul_uncons.html.

2

See LA. CONST. art. 5, § 5(D)(1).

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“abstention is justified if there is a unique state constitutional provision and a

state court interpretation of it could make a federal constitutional decision

unnecessary.” Chemerinsky, supra, § 12.2, at 822; see also Reetz v. Bozanich,

397 U.S. 82 (1970) (abstention appropriate due to unclear meaning of unique

fishing-rights provision of state constitution).

Second, adjudication of the pending state-court challenge to the

constitutionality of Act 2 could render moot the need to address the petitioners’

federal constitutional challenge involving Act 2, which is predicated on the

district court’s desegregation order under Brown v. Board of Education, 347 U.S.

483 (1954), and United States v. Jefferson County, 380 F.2d 385 (1967) (en banc),

and the parties so agreed at the November 26, 2012 hearing.3 This is because

if the state court rules Act 2 unconstitutional on the basis of the Louisiana State

Constitution, the petitioners’ claimed threatened harm—the State Officials’

defunding of the Tangipahoa Parish school system, their authorizing

reassignment of parish students to non-public schools, and their payment of such

schools’ tuition with MFP money pursuant to Act 2, and the resulting

impediment to the school district’s ability, for lack of funds, to comply with the

district court’s desegregation order—will vanish, thus obviating the need to rule

on the petitioners’ federal constitutional challenge. For these reasons, I believe

that Pullman abstention should be applied here; accordingly, the district court’s

judgment should be immediately reversed and the case remanded with

instruction for the district court to abstain under Pullman. See Harris Cnty.,

420 U.S. at 89 n.14 (“Ordinarily the proper course in ordering ‘Pullman

3

That the desegregation order was entered in a desegregation case premised on Brown

and its progeny demonstrates the constitutional dimensions of the ruling requested by the

petitioners. See Freeman v. Pitts, 503 U.S. 467, 491 (1992) (describing “those provisions of the

law and the Constitution” as “predicate for judicial intervention” by way of a consent decree)

(emphasis added).

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abstention’ is to remand with instructions to retain jurisdiction but to stay the

federal suit pending determination of the state-law questions in state court.”).4

2.

Although the majority concedes that the criteria for Pullman abstention

have been met, it wrongly refuses to apply it immediately and continues this

litigation by misusing the doctrine to assist in granting the State Officials a stay

of the district court’s judgment pending appeal. This is double error because

Pullman abstention should be ordered immediately when it appears that federal

litigation may be an unnecessary entanglement and interference with state law;

and the Pullman abstention criteria do not relate to the merits of the district

court’s injunction. Rather, Pullman is an independent doctrine, predicated on

federalism, the avoidance of unnecessary federal constitutional rulings through

abstention, and the value of allowing state courts to resolve sensitive and unique

state issues first, before proceeding with federal litigation. On this basis,

Pullman requires analysis independent from that conducted under Nken to

decide whether to stay the district court judgment while the federal litigation

continues on appeal.

Second, despite acknowledging that Pullman should apply, the majority

erroneously concludes that the appeal may continue and that the State Officials’

motion for a stay pending appeal should be granted. See Slip Op. at 16. The

Supreme Court has instructed that when Pullman abstention is called for, the

proper course is to remand with instruction to retain jurisdiction but stay the

federal suit pending determination of the state-law question in state court. See

Harris Cnty., 420 U.S. at 89 n.14; Morales, 986 F.2d at 968-70 (reversing and

remanding for further proceedings consistent with the court’s instruction to

4

The exception to the rule, not at issue here, is where the state “has ruled[] . . . that

it cannot grant declaratory relief under state law if a federal court retains jurisdiction over the

federal claim.” Id.

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abstain under Pullman). Once it is determined that the Pullman doctrine is

applicable, we lack any discretion to proceed otherwise.

Third, in connection with Pullman abstention we should certify the

question regarding Act 2’s constitutionality under the Louisiana State

Constitution to the Louisiana Supreme Court. Certification is appropriate

because, even though the issue has already been appealed to the state high court

our certification of it may expedite resolution of this potentially dispositive

question and will serve the goals of abstention and avoidance by obviating the

need to rule on the petitioners’ federal constitutional challenge. As the Court

wrote in Arizonans for Official English v. Arizona, “Pullman abstention [has]

proved protracted and expensive in practice, for it entail[s] a full round of

litigation in the state court system before any resumption of proceedings in

federal court.” 520 U.S. 43, 76 (1997); see also Chemerinsky, supra, § 12.3, at

840 (noting that the procedure, followed under Pullman and requiring parties

to litigate state-law claims in state court first, “commonly takes many years and

imposed substantially increased costs on litigants”). “Certification procedure,

in contrast, allows a federal court faced with a novel state-law question to put

the question directly to the State’s highest court, reducing the delay, cutting the

cost, and increasing the assurance of gaining an authoritative response.”

Arizonans, 520 U.S. at 76; see also Lehman Bros. v. Schein, 416 U.S. 386, 391

(1974) (noting that certification saves “time, energy, and resources and helps

build a cooperative judicial federalism”); Chemerinsky, supra, § 12.3, at 841

(“Certification greatly simplifies the abstention procedure and therefore reduces

the delays and increased costs usually accompanying abstention.”). Certification

will expedite resolution of this case while serving important goals of our nation’s

federalism. And in particular, time is of the essence when educating children.

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B. The State Officials Are Not Entitled to Sovereign

Immunity from Suit in Federal Court To Enjoin Them from

Thwarting and Interfering with a Valid Desegregation Order

Contrary to the majority’s decision, the Eleventh Amendment does not bar

the district court’s enforcement of the federal consent decree and desegregation

order by enjoining the State Officials from frustrating, interfering with, or

threatening to dismantle those federal orders by executing a state law that

sharply conflicts with the federal decrees by authorizing, inter alia,

reassignment of public school students to non-public schools and the increasing

diversion of state MFP funds away from the parish’s public-school system to pay

for transfer students’ non-public school tuition.

As the Supreme Court held in Frew v. Hawkins, a case such as this

“involves the intersection of two areas of federal law: the reach of the Eleventh

Amendment and the rules governing consent decrees.” 540 U.S. 431, 437 (2004).

As the Supreme Court explained:

The Eleventh Amendment confirms the sovereign status of the

States by shielding them from suits by individuals absent their

consent. To ensure the enforcement of federal law, however, the

Eleventh Amendment permits suits for prospective injunctive relief

against state officials acting in violation of federal law. This

standard allows courts to order prospective relief as well as

measures ancillary to appropriate prospective relief. Federal courts

may not award retrospective relief, for instance, money damages or

its equivalent, if the State invokes its immunity.

Id. (citations omitted). This case is not a suit for money damages or its

equivalent against the State, but rather a suit for an injunction requiring the

State Officials to conform their conduct to federal constitutional law as

interpreted by Brown and its progeny and as set forth in the desegregation

consent decree entered in this case in 1965 and updated by succeeding

desegregation orders, the most recent being the 2012 desegregation order.

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“Consent decrees have elements of both contracts and judicial decrees.”

Id. Thus, “[a] consent decree ‘embodies an agreement of the parties’ and is also

‘an agreement that the parties desire and expect will be reflected in, and be

enforceable as, a judicial decree that is subject to the rules generally applicable

to other judgments and decrees.’” Id. And “[c]onsent decrees entered in federal

court must be directed to protecting federal interests.” Id. In Firefighters v.

Cleveland, the Court “observed that a federal consent decree must spring from,

and serve to resolve, a dispute within the court's subject-matter jurisdiction;

must come within the general scope of the case made by the pleadings; and must

further the objectives of the law upon which the complaint was based.” Id.

(citing 478 U.S. 501, 525 (1986)).

Here, the State Officials do not contend that the terms of the consent

decree or desegregation order were impermissible under Brown and Jefferson

County. Nor do they contend that the consent decree failed to comply with

Firefighters. Rather, the officials challenge only the district court’s means of

enforcement of the decree and order, not their validity or entry.

The state officials rely heavily on the Supreme Court’s decision in

Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984), and the

Eleventh Circuit’s decision in DeKalb County School District v. Schrenko, 109

F.3d 680 (11th Cir. 1997). Pennhurst and DeKalb County, which relies primarily

on Pennhurst, however, are distinguishable. In those cases, the courts found the

rationale of Ex parte Young inapplicable to suits brought against state officials

alleging violations of state-law. 465 U.S. at 106; 109 F.3d at 688. Jurisdiction

was thus improper because “[a] federal court’s grant of relief against state

officials on the basis of state-law, whether prospective or retroactive, does not

vindicate the supreme authority of federal law.” Pennhurst, 465 U.S. at 106.

Here, by contrast, the law to be enforced is not state law but federal law,

embodied in a federal consent decree and desegregation order that was entered

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to implement the Fourteenth Amendment of the U.S. Constitution as interpreted

by Brown and its progeny. This is the federal law which the State Officials have

been enjoined from frustrating or threatening to dismantle.

Therefore, this case is governed by the Supreme Court’s decision in Ex

parte Young and its progeny in which the Court has striven to harmonize the

principles of state sovereign immunity with the effective supremacy of rights and

powers secured elsewhere in the Constitution. When a suit is brought only

against state officials, as in the present case, a question arises as to whether that

suit is a suit against the State itself. Pennhurst, 465 U.S. at 101. “Although

prior decisions of [the Supreme] Court have not been entirely consistent on this

issue, certain principles are well established.” Id. For instance, the Eleventh

Amendment bars a suit against state officials when “the state is the real,

substantial party in interest.” Ford Motor Co. v. Dep’t of Treasury, 323 U.S. 459,

464 (1945). “The general rule is that a suit is against the sovereign if ‘the

judgment sought would expend itself on the public treasury or domain, or

interfere with the public administration,’ or if the effect of the judgment would

be ‘to restrain the Government from acting, or to compel it to act.’” Dugan v.

Rank, 372 U.S. 609, 620 (1963) (citations omitted). However,

[t]he Court has recognized an important exception to this general

rule: a suit challenging the constitutionality of a state official's

action is not one against the State. This was the holding in Ex parte

Young, . . . in which a federal court enjoined the Attorney General

of the State of Minnesota from bringing suit to enforce a state

statute that allegedly violated the Fourteenth Amendment. This

Court held that the Eleventh Amendment did not prohibit issuance

of this injunction. The theory of the case was that an

unconstitutional enactment is “void” and therefore does not “impart

to [the officer] any immunity from responsibility to the supreme

authority of the United States.” Since the State could not authorize

the action, the officer was “stripped of his official or representative

character and [was] subjected to the consequences of his official

conduct.

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Pennhurst, 465 U.S. at 102 (citation omitted). Further,

[w]hile the rule permitting suits alleging conduct contrary to “the

supreme authority of the United States” has survived, the theory of

Young has not been provided an expansive interpretation. Thus, in

Edelman v. Jordan, . . . the Court emphasized that the Eleventh

Amendment bars some forms of injunctive relief against state

officials for violation of federal law. In particular, Edelman held

that when a plaintiff sues a state official alleging a violation of

federal law, the federal court may award an injunction that governs

the official's future conduct, but not one that awards retroactive

monetary relief. Under the theory of Young, such a suit would not

be one against the State since the federal-law allegation would strip

the state officer of his official authority.

Id. at 102-03. Thus, prospective injunctive relief against a state officer does not

amount to retroactive relief that would be barred by the Eleventh Amendment.

See id.

Applying the foregoing principles, it is clear that the district court’s

injunction of the State Officials’ future unconstitutional conduct that would

contravene federal law by frustrating and threatening defeat of the federal

consent decree and desegregation order, based on federal constitutional law, is

not a suit or an injunction against the state. Nor does the district court’s

injunction violate the Eleventh Amendment by granting retroactive relief against

the state or any state official or by ordering the payment of any compensation for

past wrongs by the state or its officers.

The majority does not disagree with the principles enunciated by the

Supreme Court in Ex parte Young and its progeny as set forth above. Instead,

the majority totally mischaracterizes the district court’s injunction by incorrectly

stating that it is “an award of monetary relief against the State’s treasury,” Slip

Op. at 8; that it requires the State “to answer what is essentially a claim for

contribution from one of its subdivisions in federal court,” Slip Op. at 9; and that

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“this matter does not involve a party seeking a state official’s compliance with

federal law that will indirectly cost the state more money,” Slip Op. at 8.

A fair and accurate reading of the record demonstrates that the district

court’s injunction merely requires the State Officials to conform their prospective

conduct to federal law as stated in the desegregation consent decree and orders;

and that it does not order the state to contribute anything from its treasury or,

for that matter, to do anything at all. Indeed, because the state has not been

made a party, the injunction applies only against the State Officials and orders

that their “implementation of [Act 2] of the 2012 Regular Session of the Louisiana

Legislature be enjoined in accordance with this Court’s previous order,” in which

the district court stated that its injunction would apply to restrain them

prospectively from frustrating the court’s implementation of the desegregation

consent decree and orders.

The majority’s implicit argument that Superintendent White may not be

enjoined under Ex parte Young because there is no claim that he has violated

federal law or acted outside of his official capacity is without merit. The

Louisiana State Constitution places general duties on him and the members of

the BESE to administer Act 2 of the Regular Session of the 2012 Legislature. See

LA. CONST. art. 8, §§ 2, 13. Act 2 itself more specifically places a duty on them to

take actions that would violate federal law by frustrating the district court’s

implementation of its desegregation consent decree and orders. Under Ex parte

Young, in making an officer of the state a defendant in a suit to enjoin the

unconstitutional enforcement of a state law, the officer must have some

connection with the enforcement of the act. “The fact that the state officer, by

virtue of his office, has some connection with the enforcement of the act, is the

important and material fact, and whether it arises out of the general law, or is

specially created by the act itself, is not material so long as it exists.” Ex parte

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Young, 209 U.S. at 157; see also K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010)

(citing this passage from Young).

Finally, the cases the majority cites in support of its assertion that this is

a suit against the state in violation of the Eleventh Amendment are inapposite

because they are cases in which a suit essentially sought retroactive relief, or

monetary compensation, against the state itself, and not prospective injunctive

relief against a state official. As the Supreme Court has stated:

[The Young] doctrine has existed alongside our sovereign-immunity

jurisprudence for more than a century, accepted as necessary to

“permit the federal courts to vindicate federal rights.” It rests on

the premise—less delicately called a “fiction[]”—that when a federal

court commands a state official to do nothing more than refrain from

violating federal law, he is not the State for sovereign-immunity

purposes.

Va. Office for Protection & Advocacy v. Stewart, 131 S.Ct. 1632, 1638 (2011). In

the present case, that is all the district court has done, viz., command the State

Officials to refrain from violating federal law embodied in the desegregation

consent decree and orders. Accordingly, the district court had jurisdiction to

issue the injunction, and the Eleventh Amendment presented no bar.

C. The State Officials Have Failed To Make a Strong

Showing of a Likelihood of Success on the Merits Regarding

the District Court’s Application of the All Writs Act

The All Writs Act, 28 U.S.C. § 1651(a), empowers “a federal court to issue

such commands . . . as may be necessary or appropriate to effectuate and prevent

the frustration of orders it has previously issued in its exercise of jurisdiction.

otherwise obtained.” United States v. N.Y. Tel. Co., 434 U.S. 159, 172 (1977).

Under the Act, a district court may issue a writ binding persons or entities that

were not parties to the underlying litigation if their conduct frustrates the court’s

order. See id. at 174. As the Supreme Court has stated, “three conditions must

be satisfied before [the writ] may issue”:

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First, “the party seeking issuance of the writ [must] have no other

adequate means to attain the relief he desires,” a condition designed

to ensure that the writ will not be used as a substitute for the

regular appeals process. Second, the petitioner must satisfy “the

burden of showing that [his] right to issuance of the writ is clear and

indisputable.” Third, 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.

Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380-81 (2004) (internal

quotation marks and citations omitted). Although the majority asserts that the

district court lacked authority under the Act, this is incorrect.

Given the framework advanced by the majority, the State Officials bear the

burden of demonstrating a strong showing of a likelihood of success on the merits

that one or more of the conditions outlined in Cheney is missing. See Slip Op. at

4-5, 11-15; see also Nken, 556 U.S. at 434. The State Officials have not met this

burden. Instead, their only argument regarding the All Writs Act is that the Act

“cannot serve as an independent basis for jurisdiction.” See Texas v. Real Parties

in Interest, 259 F.3d 387, 392 (5th Cir. 2001).5 However, no one disputes that the

district court already possessed an independent basis for the exercise of

jurisdiction: namely, the decades-old desegregation suit out of which the 2010

consent decree arose and is still under the district court’s supervision. Thus, the

State Officials’ argument misses the mark and, moreover, does not constitute a

strong showing of a likelihood of success on the merits as required by Nken.

Given the State Officials’ terse All Writs Act analysis, the majority has

seen fit to supply the State Officials’ argument for them. Not only is this

inappropriate under Nken, but the majority’s arguments are also incorrect. First,

the majority asserts that the petitioners possess adequate means of relief apart

5

The State Officials also assert that the Act may not be “used to circumvent or

supersede the constitutional limitations of the Eleventh Amendment.” See In re Baldwin-

United Corp., 770 F.2d 328, 340 (2d Cir. 1985). Given that the Eleventh Amendment does not

bar the present suit, this observation is beside the point.

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from the All Writs Act. Slip Op. at 12. The meager options the majority suggests

are twofold: (1) entreat the State Legislature to either provide greater funding or

repeal Act 2; or (2) rely on the pending state-court proceeding addressing the

constitutionality of Act 2 under the Louisiana State Constitution. See id.

However, and as the district court observed in its November 30 order, the

pending state-court proceeding does not address compliance with the 2010

consent decree nor how Act 2 will affect Tangipahoa’s ability to achieve unitary

status; that issue would be beyond the scope of that proceeding. Although

resolution of the pending state-court suit may moot the need for further federal

litigation, this factor is addressed to Pullman abstention, see supra, not the first

factor for invocation of the All Writs Act, which asks whether recourse to the

state-court litigation will enable the petitioners to assert their claim that the

State Officials’ administration of Act 2 frustrates and defeats the school board’s

compliance with the 2010 consent decree. Moreover, given that the state trial

court declined to enjoin the voucher program, timely access to relief is not

available to petitioners. See Stephanie Simon, Louisiana Voucher Program Ruled

Unconstitutional, The Huffington Post, Nov. 30, 2012,

http://www.huffingtonpost.com/2012/11/30/judge-rules-louisiana-sch_n_222096

2.html. Regarding whether the petitioners should be required to lobby the

legislature, relief from that body not only is speculative but also ignores that,

absent the injunctive relief requested, the petitioners’ ability to comply with the

consent decree will be undermined and severely frustrated.

Second, the majority contends that the petitioners have not shown that

their right to the writ is “clear and indisputable” because they allegedly rely on

speculation and general financial information to show the harm that Act 2

creates. See Slip Op. at 12. The district court noted that the applicability of the

All Writs Act in this very context (namely, allowing a federal court to enforce its

consent decrees) is well established. Moreover, the majority’s argument

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impermissibly shifts the burden from the State Officials requesting a stay to the

petitioners who have successfully convinced the district court that application of

the All Writs Act is warranted. The district court is in a better position, having

supervised the underlying desegregation suit for decades and overseen countless

hours of careful negotiations between the parties, to judge what will and will not

affect Tangipahoa’s compliance with the consent decree. See Tasby v. Black Coal.

To Maximize Educ., 771 F.2d 849, 855 (5th Cir. 1985) (reasoning that “great

deference is given to the district courts” in reviewing desegregation orders

because “the district courts are best situated to understand the particular

problems and needs of the districts in which they sit” and “their proximity to local

conditions” enables them to “best perform this judicial appraisal”) (internal

quotation marks omitted) (citing Brown v. Bd. of Educ., 349 U.S. 294, 299 (1955)

(Brown II)); cf. Spallone v. United States, 493 U.S. 265, 281 (1990) (Brennan, J.,

dissenting) (referring to the district court’s “intimate contact” with and “special

insight” into the facts of the case and criticizing the Court for its “ex post

rationalization” from its “detached vantage point” for disturbing the district

court’s calculated judgment of what would “most likely . . . work quickly and least

disruptively” in the case); see also Newby v. Enron Corp., 338 F.3d 467, 476 (5th

Cir. 2003) (reviewing issuance of a writ pursuant to the All Writs Act for abuse

of discretion). The majority’s analysis, then, robs the district court of the

deference we are required to pay to the court’s determination that Act 2 is a

threat to compliance with the federal constitutionally required consent decree

and unitary system conversion plan. See Tasby, 771 F.2d at 855 .

Third, the majority reasons that issuance of the writ was not appropriate

under the circumstances because only one-quarter of one percent of

schoolchildren in the parish are affected, at this point in time in the first year of

the voucher program. Again, this pays little fealty to the considered wisdom and

common sense of the district court’s judgment and, moreover, ignores the

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determination that the number of schoolchildren participating in the voucher

program, thereby abandoning the public schools in Tangipahoa and depriving

them of much-needed funding, undoubtedly will increase in future. For the

foregoing reasons, I do not believe the State Officials have satisfied their burden

of making a strong showing of a likelihood of success on the merits regarding the

district court’s utilization of the All Writs Act.

D. The State Officials Have Failed To Satisfy Their

Burden of Demonstrating All Four Nken Factors To

Justify a Stay Pending Appeal

The State Officials bear the burden of satisfying all four Nken factors in

order to warrant a stay pending appeal. See 556 U.S. at 434. Despite this, the

State Officials have satisfied none.

First, the State Officials have failed to make a strong showing of a

likelihood of success on the merits. Even assuming that analysis under the

Eleventh Amendment and Pullman doctrine is appropriately subsumed under

Nken’s first factor—a contention with which I take great issue given the

jurisdiction-sapping nature of affirmative answers under either doctrine—the

State Officials’ arguments based on the Eleventh Amendment, Pullman, and the

All Writs Act fail to demonstrate a strong showing of a likelihood of success on

the merits. Thus, the State Officials must make a strong showing in some other

fashion.

In this regard, the State Officials bear the burden of strongly showing that

the district court abused its discretion in granting a preliminary injunction to

halt Act 2’s interference with the consent decree in Tangipahoa. See Planned

Parenthood Ass’n of Hidalgo Cnty. Tex., Inc. v. Suehs, 692 F.3d 343, 348 (5th Cir.

2012). This is a high bar, one that calls for greater deference to the findings and

conclusions of the district court than if we as a panel were to conduct a de

novo review of the issues presented in this appeal. See id.; Tasby, 771 F.2d 849,

855. The district court determined, based in part on the testimony, discussions,

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and evidence it considered in formulating its consent decree and unitary-school-

system plan, that the operation of Act 2 in Tangipahoa would undermine or

unduly impede the school board’s ability to comply with the consent decree and

the goal of achieving unitary status. Thus, the State Officials are obliged to make

a strong showing that the diversion of MFP funding away from the public-school

system and into non-public schools via the use of vouchers by schoolchildren

opting out of the former to attend the latter, would not interfere with or

undermine the district court’s carefully crafted consent decree and unitary school

system plan, which was based on projections measuring public-school enrollment

and the corresponding allocation of MFP funds to Tangipahoa by the State. I

particularly note that the State Officials introduced no evidence to show that Act

2’s unilateral diversion of MFP funds and enrollment from public schools to non-

public schools would not interfere with and undermine the district court’s consent

decree and unitary public school system plan for Tangipahoa public schools.

They did not show—nor, I question, could they—that the diversion of MFP

funding from Tangipahoa would not affect the meticulous requirements imposed

on the school system, including the construction of new facilities, the

improvement of old ones, new teacher-training requirements, school programs,

and student assignments. Instead, the State Officials simply argued that

Tangipahoa received slightly more MFP funds for the 2012-2013 school year than

it received for the 2011-2012 school year. This argument did not take into

account the added burdens imposed upon the Tangipahoa public system by the

district court’s consent decree and unitary plan in the next and succeeding years.

Because of a lack of evidence and failure to acknowledge that growth in profits

without accounting for added debt does not guarantee financial health, the State

Officials have failed to satisfy their burden of making a strong showing of

likelihood of success in reversing the district court’s findings and judgment with

respect to Nken’s first factor.

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Second, the State Officials have failed to make out an irreparable injury as

required by Nken’s second factor. Our temporary stay of the injunction on

December 14, 2012 permitted the payment of the fifty children’s vouchers on

December 17, 2012 and the continued implementation of Act 2 in Tangipahoa.

This undercuts the majority’s contention that the fifty participating

schoolchildren would have to relocate absent timely payments during the school

year. See Slip Op. at 15. Further, even under the injunction’s terms, the loss of

vouchers by the fifty schoolchildren currently enrolled in the voucher program in

Tangipahoa neither substantially nor irreparably would have injured the voucher

program or the affected children. The schoolchildren would have remained

entitled to free public education by the Tangipahoa school district and Act 2

would have been temporarily stopped only as to fifty students in one public-school

district out of sixty-nine statewide. Therefore, even if we had not issued our

temporary stay of the injunction, no irreparable injury would have befallen the

state or the fifty children due to the district court’s judgment.

Regarding the third and fourth Nken factors—whether the stay will

substantially harm the petitioners and a determination of where the public

interest lies—the State Officials have also failed to satisfy Nken’s commands. In

particular, the State Officials rely solely on their assertion that the school board

in fact received more funding this year than it did last year. But, as mentioned

previously, the State Officials’ argument fails to take into account the burdens

the school system will be obligated to discharge in the future; essentially, the

State Officials are reading only one side of Tangipahoa’s profit-and-loss

statement. Showing that neither the public interest in public education nor the

Tangipahoa public school system, within the context of the consent decree and

unitary plan, will be harmed by the Act 2 voucher program requires a much more

complex analysis. The additional burdens on the Tangipahoa public school

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system by the consent decree and unitary school system plan, as well as other

factors such as demographics and inflation, would have to be taken into account.

The majority’s attempt to minimize the harm that will befall petitioners if

they are unable to comply with consent decree, as well as their assertion that

Nken’s last two factors are “less significant” ignores that State Officials’ burden

in satisfying all four factors. See Nken, 556 U.S. at 434; Slip Op. at 15-16.

Additionally, the district court observed that the expansion of non-public schools

in and around the parish concomitant with the enactment of Act 2, as well as the

likely increase in the number of students availing themselves of vouchers, would

further destabilize the carefully crafted consent decree. Doc. No. 1066, at 12-13.

Under the third Nken factor, it is up to the State Officials to demonstrate that the

petitioners will not be substantially harmed. See id. It is not the role of the

majority, conceding that Act 2 interferes with the school board’s ability to comply

with the consent decree, see Slip Op. at 16, to assert that Act 2 does not interfere

with Tangipahoa’s compliance enough. All this leads to the conclusion that the

State Officials have failed to carry their burden with respect to Nken’s third and

fourth factors. Based on this and foregoing, the State Officials have failed to

carry their burden and thus demonstrate that a stay is warranted based on an

application of the Nken factors.

CONCLUSION

For the foregoing reasons, I respectfully dissent from the majority’s refusal

to grant the State Officials’ request to order Pullman abstention in this case by

reversing the district court’s judgment and remanding the case to it for federal-

court abstention; from the majority’s improper use of the doctrines of sovereign

immunity and Pullman abstention in its Nken analysis; from its determination

that sovereign immunity bars the district court’s injunction issued to restrain the

State Officials from doing nothing more than violating federal law embodied in

the district court’s desegregation consent decree and orders; and from its

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erroneous determination that the State Officials satisfied their burden with

respect to all four factors under Nken.

42