Petition for Writ of Certiorari — Susan Hutson, Petitioner v. United States, et al.

Supreme Court briefMar 21, 2025

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No. 24-______

In the Supreme Court of the United States

SUSAN HUTSON,

Petitioner,

UNITED STATES OF AMERICA, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the

Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

JOSHUA S. FORCE

DAVID A. MARCELLO

CURTIS J. CASE

SHER GARNER CAHILL

RICHTER KLEIN &

HILBERT, L.L.C.

909 Poydras St., 28th Floor

New Orleans, LA 70112

JOHN S. WILLIAMS

YOLANDA MARTINSINGLETON

ORLEANS PARISH SHERIFF’S

OFFICE

2800 Perdido St.

New Orleans, LA 70119

March 21, 2025

ELIZABETH B. MURRILL

Attorney General

J. BENJAMIN AGUIÑAGA

Solicitor General

Counsel of Record

ZACHARY FAIRCLOTH

Principal Deputy

Solicitor General

KELSEY L. SMITH

Deputy Solicitor General

LOUISIANA DEPARTMENT OF

JUSTICE

1885 N. Third St.

Baton Rouge, LA 70802

(225) 506-3746

AguinagaB@ag.louisiana.gov

QUESTION PRESENTED

The Prison Litigation Reform Act of 1995 (PLRA)

establishes, among other things, “standards for the

entry and termination of prospective relief in civil actions challenging prison conditions.” Miller v. French,

530 U.S. 327, 331 (2000). Relevant here, “such relief

shall be terminable upon the motion of any party ... 2

years after the date the court granted or approved the

prospective relief.” 18 U.S.C. § 3626(b)(1)(A)(i). Upon

the timely filing of any such motion, “[t]he supervising

court may refuse to terminate jurisdiction only if it

makes [certain] written findings” specified by the

PLRA. Imprisoned Citizens Union v. Ridge, 169 F.3d

178, 182 (3d Cir. 1999) (Alito, J.) (citing § 3626(b)(3)).

The question presented is:

Whether a State or local official who moves to

terminate prospective relief under 18 U.S.C.

§ 3626(b)(1)(A) bears any affirmative burden

beyond demonstrating that the requisite

amount of time has passed.

PARTIES TO THE PROCEEDING

Petitioner is Susan Hutson. Petitioner was the defendant-appellant below.

Respondents are the United States of America (an

intervenor plaintiff-appellee below), as well as Kent

Anderson, Steven Dominick, Anthony Gioustavia,

Jimmie Jenkins, Greg Journee, Richard Lanford,

Leonard Lewis, Euell Sylvester, and Lashawn Jones

(all plaintiffs-appellees below).

Though not a respondent here, the City of New Orleans was a defendant-appellee below but took no position on the merits of Sheriff Hutson’s appeal.

iii

STATEMENT OF RELATED CASES

Anderson v. Hutson, No. 23-30633 (5th Cir.). Judgment entered Aug. 26, 2024; order denying petition for

rehearing en banc entered Jan. 28, 2025.

Jones v. Gusman, No. 12-859 (E.D. La.). Order entered Sept. 5, 2023.

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

PARTIES TO THE PROCEEDING ............................ ii

STATEMENT OF RELATED CASES .......................iii

TABLE OF AUTHORITIES ...................................... vii

PETITION FOR WRIT OF CERTIORARI ................. 1

OPINIONS BELOW .................................................... 5

JURISDICTION .......................................................... 5

STATUTORY PROVISIONS INVOLVED.................. 5

STATEMENT OF THE CASE .................................... 7

A. LEGAL BACKGROUND........................................... 7

B. PROCEDURAL BACKGROUND ................................ 8

REASONS FOR GRANTING THE PETITION ....... 15

I. THE COURTS OF APPEALS ARE DIVIDED ON THE

QUESTION PRESENTED. ....................................... 15

A. The Ninth Circuit Requires Movants to

Prove Not Only the Requisite Passage of

Time But Also That the Prospective

Relief Does Not Satisfy the § 3626 (b)(3)

Factors. ......................................................... 15

B. The First and Fifth Circuits, and

Numerous Courts Within Other Circuits,

Require Movants to Show Only the

Requisite Passage of Time, Recognizing

That Plaintiffs Bear the Burden to Prove

That the Prospective Relief Satisfies the

§ 3626 (b)(3) Factors. .................................... 19

C. The Decision Below Brings This Split

Within the Fifth Circuit Itself...................... 23

II. THE DECISION BELOW IS WRONG. ..................... 25

A. The PLRA’s Burden-Shifting Framework

Requires That a Movant Establish Only

the Requisite Passage of Time. .................... 25

B. The Ninth Circuit’s Side of the Circuit

Split Is Wrong. .............................................. 28

III. THE QUESTION PRESENTED IS “OBVIOUSLY

IMPORTANT.” .................................................... 30

IV. THIS CASE IS AN IDEAL VEHICLE. .................... 32

CONCLUSION .......................................................... 36

TABLE OF APPENDICES

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT, FILED JANUARY 28,

2025…………….…………….……………...…1a

APPENDIX B — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT, FILED AUGUST 26,

2024…………….………….……………..…..43a

APPENDIX C — ORDER & REASONS OF THE

UNITED STATES DISTRICT COURT,

EASTERN DISTRICT OF LOUISIANA

FILED SEPTEMBER 5, 2023.………..…..81a

APPENDIX D — ORDER OF THE UNITED

STATES DISTRICT COURT, EASTERN

DISTRICT OF LOUISIANA FILED JULY 19,

2023……....…………………………......…..107a

vii

TABLE OF AUTHORITIES

Cases

Anderson v. City of New Orleans,

38 F.4th 472 (5th Cir. 2022)................................... 10

Anderson v. Hutson,

No. 23-30633 (5th Cir.)........................................... iii

Balla v. Idaho Bd. of Corr.,

2019 WL 9831671 (D. Idaho Apr. 18, 2019) ......... 18,

26, 27

Balla v. Idaho,

29 F.4th 1019 (9th Cir. 2022)........................... 17, 18

Benjamin v. Shriro,

2009 WL 3464286 (S.D.N.Y. Oct. 26, 2009) .......... 22

Berwanger v. Cottey,

178 F.3d 834 (7th Cir. 1999) .................................... 8

Brown v. Collier,

929 F.3d 218 (5th Cir. 2019) .............................. 3, 21

Brown v. Plata,

563 U.S. 493 (2011) ................................................ 28

Busby v. Bonner,

2021 WL 4100290 (W.D. Tenn. Aug. 30, 2021) ..... 23

Cason v. Seckinger,

231 F.3d 777 (11th Cir. 2000) .................................. 8

Gilmore v. California,

220 F.3d 987 (9th Cir. 2000) ...... 3, 15, 16, 18, 28, 29

Graves v. Arpaio,

623 F.3d 1043 (9th Cir. 2010) ...................... 3, 16, 17

Guajardo v. Tex. Dep’t of Criminal Justice,

363 F.3d 392 (5th Cir. 2004) ........... 3, 14, 20, 21, 22,

23, 24, 26

viii

Hadix v. Johnson,

228 F.3d 662 (6th Cir. 2000) .................................... 8

Hedrick v. Grant,

648 F. App’x 715 (9th Cir. 2016) ........................ 3, 17

Imprisoned Citizens Union v. Ridge,

169 F.3d 178 (3d Cir. 1999)......................... i, 2, 8, 22

Imprisoned Citizens Union v. Shapp,

11 F. Supp. 2d 586 (E.D. Pa. 1998)........................ 21

Jones v. Gusman,

No. 12-859 (E.D. La.).............................................. iii

Laaman v. Warden, N.H. State Prison,

238 F.3d 14 (1st Cir. 2001)..................... 3, 19, 20, 22

Miller v. French,

530 U.S. 327 (2000) ............................. i, 7, 11, 27, 29

Parker v. Hooper,

128 F.4th 691 (5th Cir. 2025)................................. 31

Porter v. Clarke,

923 F.3d 348 (4th Cir. 2019) .................................... 8

Regan v. Cnty. of Salt Lake,

2006 WL 3613217 (D. Utah Dec. 11, 2006) ........... 22

Rufo v. Inmates of Suffolk Cty. Jail,

502 U.S. 367 (1992) .......................................... 15, 17

Ruiz v. United States,

243 F.3d 941 (5th Cir. 2001) .................................. 35

Skinner v. Lampert,

457 F. Supp. 2d 1269 (D. Wyo. 2006) .................... 22

United States v. Territory of the Virgin Islands,

884 F. Supp. 2d 399 (D.V.I. 2012).......................... 22

Valentine v. Collier,

993 F.3d 270 (5th Cir. 2021) ............................ 28, 36

Woodford v. Ngo,

548 U.S. 81 (2006) .................................................. 27

Statutes

18 U.S.C. § 3626 ............ i, 1, 2, 3, 4, 5, 7, 8, 10, 11, 13,

14, 15, 16, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29,

32, 33, 34, 35, 36

28 U.S.C. § 1254 .......................................................... 5

28 U.S.C. § 1291 ........................................................ 31

42 U.S.C. § 1983 .......................................................... 8

PETITION FOR WRIT OF CERTIORARI

The United States and its private-plaintiff partners “want[] to build a prison”—a $100+ million

prison—on New Orleanians’ dime. App.42a (Oldham,

J., dissenting from the denial of rehearing en banc)

(quoting App.64a (Smith, J., dissenting)). For over a

decade, the United States, a friendly (to the United

States) former Sheriff, and others have willed this construction project into existence. First through a consent decree, and then through a series of judicial orders mandating a new prison, come hell or high water.

Indeed, the district court’s most recent directives are

unequivocal:

[A]ny further delay in the construction of [the

prison] shall not be tolerated by the Court, and

any party’s failure to abide by this Court’s orders shall result in severe sanctions, including

consideration of whether that party is to be

held in contempt of court. App.82a.

But there is, as they say, “a new Sheriff in town”—

Petitioner Susan Hutson. App.44a. When she took office, she recognized the utter unlawfulness of what has

happened. To take the starkest example, in curtailing

federal courts’ ability to interfere with State and local

prisons, the Prison Litigation Reform Act (PLRA)

states that “[n]othing” within its provisions “shall be

construed to authorize the courts, in exercising their

remedial powers, to order the construction of prisons.”

§ 3626(a)(1)(C). Yet, Petitioner is under the gun to

build a prison that her predecessor agreed—and now

the courts are ordering her—to build.

Petitioner moved to terminate the orders mandating the prison construction. The PLRA’s termination

provisions state that orders granting prospective relief

“shall be terminable” upon the filing of any termination motion filed at least two years after the date they

were entered—a condition undisputedly satisfied

here. § 3626(b)(1)(A)(i). “After that, the burden shifts

to the parties opposing termination to provide sufficient evidence to support [certain] findings required

by” § 3626(b)(3). App.40a (Oldham, J.). As then-Judge

Alito put it, a district court “may refuse to terminate

jurisdiction only if it makes” those § 3626(b)(3) findings. Imprisoned Citizens Union v. Ridge, 169 F.3d

178, 182 (3d Cir. 1999); see § 3626(b)(3) (stating that

prospective relief “shall not terminate if the court

makes written findings based on the record that,”

among other things, “prospective relief remains necessary to correct a current and ongoing violation of the

Federal right” and “the prospective relief is narrowly

drawn”).

But the district court refused to terminate its orders—and the Fifth Circuit affirmed in a decision that

Judges Oldham and Smith described as “inscrutable,”

“jurisdictionally dysphoric,” “totally unhinged,” “incomprehensible,” and, ultimately, “tak[ing] a hatchet

to the [PLRA].” App.15a (Oldham, J.); App.64a (Smith,

J.); see App.3a (Ho, J., dissenting from denial of rehearing en banc) (recognizing that this is an “obviously important case”). As best Petitioner can understand that decision, it holds that Petitioner did not file

“a proper motion to terminate” because she “has not

argued that the relief is no longer necessary to correct

the existing constitutional violations.” App.59a, 61a

(citing § 3626(b)(3)). In other words, merely filing a

timely motion under § 3626(b)(1)(A) does not suffice;

Petitioner was additionally required to allege and

prove that the § 3626(b)(3) factors for continuing prospective relief are not satisfied.

That holding implicates a longstanding and entrenched circuit split regarding the burden-shifting

framework in the PLRA’s termination provisions. On

one side, the Ninth Circuit has long rejected the notion

that termination flows “automatically” from a movant’s timely filed motion; instead, “the burden is on

the movant to demonstrate” also that the § 3626(b)(3)

factors are not satisfied. Hedrick v. Grant, 648

F. App’x 715, 716 (9th Cir. 2016) (citing Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010) (per curiam);

Gilmore v. California, 220 F.3d 987, 1007–08 (9th Cir.

2000)) (emphasis added). On the other side, the First

and Fifth Circuits have long held that plaintiffs bear

the burden of preventing termination by proving up

the § 3626(b)(3) factors. See Laaman v. Warden, N.H.

State Prison, 238 F.3d 14, 20 (1st Cir. 2001); Brown v.

Collier, 929 F.3d 218, 228 (5th Cir. 2019) (citing

Guajardo v. Tex. Dep’t of Criminal Justice, 363 F.3d

392, 396 (5th Cir. 2004) (per curiam)). That is, a movant’s only burden is to “establish the requisite passage of time,” after which “the burden of proof then

shifts to the prisoners to demonstrate” the § 3626(b)(3)

factors. Guajardo, 363 F.3d at 395.

That split now exists within the Fifth Circuit itself.

Nearly half of its judges continue to adhere to the

Guajardo rule, while the majority below required Petitioner to demonstrate more than just the requisite

passage of time. See App.73a (Smith, J.) (“What must

Sheriff Hutson do to move for termination of relief?

Nothing but show the requisite passage of time—e.g.,

‘2 years after the date the court granted or approved

the prospective relief.’”); App.39a (Oldham, J.) (“[T]he

Sheriff’s only burden is to make her motion ‘2 years

after the date the court granted or approved the respective relief.’”).

The decision below (as well as the Ninth Circuit’s

view) is also profoundly wrong. Until the decision below, virtually no federal court agreed with the Ninth

Circuit’s view that the PLRA requires a movant to

demonstrate more than the requisite passage of time.

That is because § 3626(b) sets out a textbook burdenshifting framework: First, a movant must show that

the motion is timely; and, second, if the movant

demonstrates timeliness, the burden then shifts to the

plaintiff to prevent termination by proving up the

§ 3626(b)(3) factors. The movant bears no further burden. The statutory context confirms that straightforward reading given the PLRA’s presumption in favor

of termination of prospective relief—a presumption

that, logically, only a plaintiff has the burden to overcome. And that accords with the PLRA’s history: The

whole point of the PLRA was to curtail federal courts’

micro-management of prisons, which Petitioner’s

reading advances.

This issue is extraordinarily important on many

levels. The inter- and intra-circuit splits speak for

themselves. Resolving those splits is especially warranted because of their impact on two of the largest

federal courts of appeals where PLRA litigation is pervasive. In addition, the decision below is emblematic

of a growing trend to undercut the PLRA, which warrants special attention by this Court. And of course,

the millions of dollars of taxpayer money that is at

stake in this case—“sticker shock,” the Magistrate

Judge admitted, App.132a—is equally important.

Finally, this petition is a perfect vehicle to decide

the question presented. That question presents a clean

issue of statutory interpretation, completely devoid of

fact-bound questions. Moreover, that this issue arises

in a case where a federal court is directing the construction of a jail only underscores the appropriateness of taking this opportunity to protect and enforce

the PLRA.

OPINIONS BELOW

The Fifth Circuit’s opinion (App.43a–80a) is reported at 114 F.4th 408. The Fifth Circuit’s order

denying the petition for rehearing en banc and dissenting opinions are reproduced at App.1a–42a. The

district court’s opinion (App.81a–106a) is available at

2023 WL 11910564. The magistrate judge’s report and

recommendation is also not reported but is reproduced

at App.107a–179a.

JURISDICTION

The Fifth Circuit issued its decision on August 26,

2024, App.43a–80a, and denied the petition for rehearing en banc on January 28, 2025, App.1a–42a.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 3626(b) provides:

(1) Termination of Prospective Relief.

(A) In any civil action with respect to prison conditions in which prospective relief is ordered, such

relief shall be terminable upon the motion of any

party or intervener—

(i) 2 years after the date the court granted or approved the prospective relief;

(ii) 1 year after the date the court has entered an

order denying termination of prospective relief

under this paragraph; or

(iii) in the case of an order issued on or before the

date of enactment of the Prison Litigation Reform Act, 2 years after such date of enactment.

(B) Nothing in this section shall prevent the parties from agreeing to terminate or modify relief before the relief is terminated under subparagraph

(A).

(2) Immediate Termination of Prospective Relief.

In any civil action with respect to prison conditions, a defendant or intervener shall be entitled to

the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to

correct the violation of the Federal right, and is the

least intrusive means necessary to correct the violation of the Federal right.

(3) Limitation.

Prospective relief shall not terminate if the court

makes written findings based on the record that

prospective relief remains necessary to correct a

current and ongoing violation of the Federal right,

extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation.

STATEMENT OF THE CASE

A. Legal Background

“[T]he PLRA establishes standards for the entry

and termination of prospective relief in civil actions

challenging conditions at prison facilities.” Miller v.

French, 530 U.S. 327, 333 (2000). In particular, “a

court ‘shall not grant or approve any prospective relief

unless the court finds that such relief is narrowly

drawn, extends no further than necessary to correct

the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the

Federal right.’” Id. (quoting § 3626(a)(1)(A)). Moreover, “[n]othing” in the PLRA “shall be construed to authorize the courts, in exercising their remedial powers,

to order the construction of prisons[.]” § 3626(a)(1)(C).

The PLRA also expressly provides that “a defendant or intervenor is entitled to ‘immediate termination’” if prospective relief under an existing injunction

“does not satisfy these standards.” Miller, 530 U.S. at

331 (quoting § 3626(b)(2)). Specifically, such relief

“shall be terminable upon the motion of any party or

intervener ... 2 years after the date the court granted

or approved the prospective relief.” § 3626(b)(1)(A)(i).

A court “may refuse to terminate jurisdiction only if it

makes [certain] written findings”—that “‘prospective

relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further

than necessary to correct the violation of the Federal

right, and that the prospective relief is narrowly

drawn and the least intrusive means to correct the violation.’” Imprisoned Citizens Union, 169 F.3d at 182

(Alito, J.) (quoting § 3626(b)(3)). (These are commonly

known as the § 3626(b)(3) “factors,” “criteria,” or “findings.”)

The upshot of these termination provisions is clear

and well settled: “[I]n ruling on a motion for termination, the district court must determine whether prospective relief is justified according to § 3626(b)(3)’s

criteria; if the district court does not make the requisite findings, it must terminate the consent decree.”

Hadix v. Johnson, 228 F.3d 662, 670 (6th Cir. 2000)

(Moore, J.); Porter v. Clarke, 923 F.3d 348, 374 (4th

Cir. 2019) (Niemeyer, J., dissenting) (prospective relief shall be terminated on a party’s timely motion “unless” the district court makes the required findings);

Cason v. Seckinger, 231 F.3d 777, 781 (11th Cir. 2000)

(Carnes, J.) (on a party’s timely motion, “the relief is

terminable unless the limiting provisions of

§ 3626(b)(3) prohibit termination”); Berwanger v. Cottey, 178 F.3d 834, 838 (7th Cir. 1999) (Easterbrook, J.)

(a timely motion requires immediate termination “unless the judge makes the termination-avoiding findings specified in subsection (b)(3)”).

B. Procedural Background

1. In 2012, prisoners at the Orleans Parish Prison

(OPP) filed this 42 U.S.C. § 1983 lawsuit against thenSheriff Marlin Gusman of Orleans Parish and other

local officials, alleging “abusive and unconstitutional

conditions of confinement.” Dist.Ct.Doc. 1 at 1 ¶ 1.

Within the same year, the United States filed a complaint in intervention, claiming that Sheriff Gusman

was “engaging in a pattern or practice of violating the

constitutional rights of prisoners” at OPP.

Dist.Ct.Doc. 70 at 1 ¶ 1. In 2013, the district court entered a consent judgment at the behest of the United

States, the private plaintiffs, and Sheriff Gusman.

Dist.Ct.Doc. 465.

“In 2016, the parties implemented their consent

decree via an agreement that the district court entered

as a stipulated order (‘Stipulated Order’).” App.12a–

13a (Oldham, J.). “The Stipulated Order stated that

‘the City [of New Orleans], the Sheriff, and the Compliance Director shall develop and finalize a plan for ...

appropriate housing for prisoners with mental health

issues and medical needs.’” Id. at 13a (alteration in

original). Key here is that “[t]he Compliance Director’s

[subsequent] plan recommended construction of

‘Phase III,’ a new facility at the existing jail designed

to house detainees with mental-health needs.” Id.

In 2019, the district court entered two orders (the

2019 Orders) giving rise to the issues in this appeal.

First, in January 2019, “the district court ordered the

City ... to begin construction of the Phase III jail facility and related programming ‘as soon as possible.’” Id.;

accord App.91a. Second, in March 2019, “the district

court ordered the City to continue renovating the existing ‘temporary accommodations’ for the prison’s detainees with mental-health conditions during the construction of the Phase III jail facility, and it ordered

the City and Sheriff to continue the ‘programming’ aspect of Phase III.” App.13a (Oldham, J.); accord

App.91a. In addition, the district court “ordered the

City to provide monthly progress reports concerning

the construction of the Phase III jail facility.” App.13a

(Oldham, J.).

2. In 2020, the City of New Orleans filed a Rule

60(b) motion seeking, among other things, the “indefinite[] suspen[sion] [of] the programming, design, and

construction of a new Phase III jail facility.”

Dist.Ct.Doc. 1281-1 at 1. The district court denied that

motion, and the Fifth Circuit affirmed. Anderson v.

City of New Orleans, 38 F.4th 472 (5th Cir. 2022). Relevant here, the City asserted in its district court reply

brief that the PLRA, § 3626(a)(1)(C), “barred the court

from ordering the city to construct a new facility.” Id.

at 477. The Fifth Circuit declined to address the merits of that claim because Rule 60(b)(5) “requires a

change ‘in factual conditions or in law,’” and the court

held that “[t]he city’s PLRA issue [wa]s based on neither.” Id. at 479 (citation omitted). “Therefore, the

claim fails under Rule 60(b)(5); accordingly, we need

not consider whether it has been waived.” Id.

3. In May 2022, Petitioner took her oath as the new

Sheriff of Orleans Parish, having defeated Sheriff

Gusman in a 2021 election. One of Petitioner’s principal campaign pledges was to halt the unlawful Phase

III project. Once in office, she made good on that promise by filing a “Motion to Terminate All Orders Regarding Construction of the Phase III Jail,” including

the 2019 Orders. App.107a, 113a; see App.119a–20a

(Magistrate describing the 2019 Orders as “the essential orders regarding construction of Phase III”); see

also § 3626(b)(1)(A)(i) (“relief shall be terminable upon

the motion of any party ... 2 years after the date the

court granted or approved the prospective relief”). She

also advised the Magistrate Judge that she did not intend “to sign a Cooperative Endeavor Agreement

(‘CEA’) with the City for the construction of Phase III,

which agreement was due to be discussed on the Council’s agenda the next day.” App.108a. In response, the

Magistrate “ordered the parties to ‘file memoranda addressing whether the Court should issue an order embodying the terms of the CEA currently before the City

Council.’” Id.

A core piece of Petitioner’s termination motion is

that the Phase III mandate violates the PLRA, which

bars courts from directing the construction of prisons—either directly or indirectly. See § 3626(a)(1)(C);

see also § 3626(c)(2)(A). On this question, the Magistrate Judge vehemently disclaimed doing so. App.120a

(“[T]he Orders at issue did not direct the City to build

Phase III.”). Yet the Magistrate also went out of his

way to explain that, even if he had, “the PLRA does

not prohibit courts from ordering the construction of a

jail in the exercise of their equitable powers.”

App.122a. In the Magistrate Judge’s view, “[t]he plain

language of [§ 3626(a)(1)(C)] simply says that the

PLRA does not, in and of itself, authorize federal

courts to order prison construction; it does not say that

federal courts are prohibited from doing so or that the

PLRA somehow repealed the courts’ equitable powers

to remedy the violation of constitutional rights.”

App.123a; but see Miller, 530 U.S. at 339 (“curbing the

equitable discretion of district courts was one of the

PLRA’s principal objectives”).

In the end, the Magistrate Judge deemed Petitioner’s termination motion “not a serious motion.”

App.140a. The Magistrate conceded that Phase III

could be viewed as “bad politics and bad policy.”

App.141a. He also “fully underst[ood] the sticker

shock associated with” the $100+ million price tag.

App.132a. Yet he promised that “we will” have a

prison. App.142a. To that end, the Magistrate recommended the denial of Petitioner’s motion. App.144a.

Further, to override Petitioner, the Magistrate recommended that the district court enter “the attached ‘Order Setting Conditions of Construction’ ... as an order

of this Court, which conditions will be in force as

though they had been agreed to by the City and Sheriff

as a [CEA], for the duration of the project.” App.143a.

The Order Setting Conditions of Construction

reads: “The Court is issuing this Order in lieu of the

[CEA] that Sheriff Hutson has refused to sign in this

matter. It will be in effect just as if the parties had

signed it as an agreement.” App.146a. And the Order

sets out specific terms and conditions for requiring Petitioner to “collaboratively design and construct the

new Mental and Medical Health Services Facility commonly known as Phase III.” Id.

4. The district court largely followed suit. Like the

Magistrate, it vigorously denied ever ordering the construction of Phase III. E.g., App.90a (“[T]he Court did

not order the construction of the Phase III jail.”); accord App.94a. But, unlike the Magistrate, the district

court deemed unnecessary “a comprehensive discussion of whether the PLRA prohibits federal courts

from ordering the construction of prisons.” App.94a.

Instead—and especially relevant here—the district

court observed that “Sheriff Hutson has not argued

that the relief is no longer necessary to correct constitutional violations,” i.e., she has not argued and disproved the § 3626(b)(3) factors. App.88a. In addition,

the district court purported to make the § 3626(b)(3)

findings (mirrored in § 3626(a)(1)(A))—summarily

stating that “[t]he Court has already found that proceeding with Phase III is necessary to remedy a constitutional violation and there is no reason to think

that Phase III is no longer necessary.” App.103a (footnotes omitted). (There is no finding or reasoned explanation that ordering the construction of a $100+ million jail is the narrowest and least intrusive means of

remedying any alleged violation.)

The district court thus denied Petitioner’s termination motion and entered the Order Setting Conditions

of Construction. App.106a. The district court continued (id.):

Any further delay in the construction of Phase

III shall not be tolerated by the Court and any

party’s failure to abide by this Court’s orders

shall result in severe sanctions, including consideration of whether that party is to be held in

contempt of court.

5. Petitioner then appealed to the Fifth Circuit,

which resulted in the majority decision below. There

are voluminous writings in this case, engendered by

the majority’s “incomprehensible,” App.64a (Smith,

J.), and “inscrutable,” App.15a (Oldham, J.), opinion.

But for present purposes, the key aspect of the decision is that the majority confirmed that it has appellate jurisdiction over a district court’s denial of “a

proper motion to terminate under the PLRA.”

App.50a, 53a. A “proper” motion, by the majority’s telling, is one in which the movant seeks to satisfy the

§ 3626(b)(3) factors by “argu[ing] that the relief is no

longer necessary to correct the existing constitutional

violations.” App.61a. The majority deemed Petitioner’s motion improper, however, because she claims

only “that Section 3626(a)(1)(C) prohibits the existence of the 2019 Orders and Stipulated Order.” Id. The

majority then “dismiss[ed] this appeal,” App.63a, although it is anyone’s guess whether dismissal was for

lack of jurisdiction or on the merits, hence Judge Oldham’s characterization of the majority’s opinion as “jurisdictionally dysphoric,” App.15a.

Citing the Fifth Circuit’s Guajardo decision, Judge

Smith firmly dissented, emphasizing—as relevant

here—that Petitioner “need do nothing more” than

“show[] the requisite passage of time” (i.e., two years)

to seek termination. App.73a. “From that point onward, the PLRA shifts the burden to the parties opposing termination. It is their job—not Hutson’s—to provide sufficient proof to support the findings required

by § 3626(b)(3).” Id.

6. The Fifth Circuit denied en banc review in a 611 vote, with Judges Jones, Smith, Richman, Ho, Duncan, and Oldham voting in favor of en banc review.

Judge Oldham (joined by Judges Jones, Smith, and

Duncan) dissented, explaining—as Judge Smith

had—that the majority “incorrectly placed the burden

on the Sheriff to argue that the prospective ‘relief is no

longer necessary to correct the existing constitutional

violations.’” App.39a. “[T]he Sheriff’s only burden is to

make her motion ‘2 years after the date the court

granted or approved the prospective relief,’” and “[s]he

did that.” Id. at 39a–40a (citation omitted). “After

that, the burden shifts to the parties opposing termination to provide sufficient evidence to support the

findings required by the limitation clause in

§ 3626(b)(3).” Id. at 40a. Judge Ho filed a separate dissent underscoring “this obviously important case” and

“fully agree[ing] with [Judge Oldham’s] analysis.”

App.3a.

REASONS FOR GRANTING THE PETITION

I. THE COURTS OF APPEALS ARE DIVIDED ON THE

QUESTION PRESENTED.

A. The Ninth Circuit Requires Movants to

Prove Not Only the Requisite Passage of

Time But Also That the Prospective Relief

Does Not Satisfy the § 3626 (b)(3) Factors.

The Ninth Circuit’s entrenched view is that a movant who seeks to terminate prospective relief under

the PLRA bears the burden of proving that such relief

is no longer warranted—merely showing the requisite

passage of time is insufficient.

That view first appeared in Gilmore, where the

Ninth Circuit equated the PLRA’s termination provisions with Rule 60(b)(5). 220 F.3d at 1006–07. Specifically, the Ninth Circuit reasoned that, in the Rule

60(b)(5) context, “modification is warranted if there is

‘a significant change either in factual conditions or in

law.’” Id. at 1007 (quoting Rufo v. Inmates of Suffolk

Cty. Jail, 502 U.S. 367, 384 (1992)). And “the burden

of establishing such a change rests on the party seeking modification.” Id.

The Ninth Circuit acknowledged that, “[o]bviously,

the PLRA creates a more exacting standard for federal

courts to follow.” Id. But the Ninth Circuit refused to

relinquish a court’s “equitable discretion” in favor of “a

rule of decision.” Id. Instead, the Ninth Circuit

claimed that “nothing in the [PLRA’s] termination

provisions can be said to shift the burden of proof from

the party seeking to terminate the prospective relief.”

Id. The Ninth Circuit also argued that a district

court’s determination whether to keep prospective relief in place “requires real adjudication—the careful

application of law to fact—not the wooden ratification

of a legislatively prescribed conclusion.” Id. at 1008. It

thus falls to the movant to prove whether the prospective relief is “necessary to correct a current and ongoing violation, so long as the relief is tailored to the constitutional minimum.” Id. (citing § 3626(b)(3)).

This holding was dispositive in Gilmore. In particular, the Ninth Circuit criticized the district court for

“plac[ing] the burden on plaintiffs to establish a current and ongoing violation of a Federal right rather

than requiring the CDC, which had moved to terminate the decree, to prove its compliance with inmates’

access to the courts.” Id.; see id. (“We conclude that the

court erred in its allocation of the burden of proof ....”).

In Graves, the Ninth Circuit reiterated that,

“[w]hen a party moves to terminate prospective relief

under § 3626(b), the burden is on the movant to

demonstrate that there are no ongoing constitutional

violations, that the relief ordered exceeds what is necessary to correct an ongoing constitutional violation,

or both.” 623 F.3d at 1048. The Ninth Circuit reprised

Rufo’s statement that “a party seeking modification of

a consent decree bears the burden of establishing that

a significant change in circumstances warrants revision of the decree.” Id. (quoting Rufo, 502 U.S. at 383)

(alteration omitted). The Ninth Circuit rejected Sheriff Arpaio’s “argu[ment] that the district court erred by

placing the burden on him to demonstrate that the

§ 3626(b) requirements were met.” Id. And again, this

holding was dispositive. See id. at 1051 (“As the movant, the burden was on Sheriff Arpaio to demonstrate

that the relief ordered by the Amended Judgment

went beyond what is necessary to remedy the ongoing

constitutional violations at the Maricopa County

jails.”); id. at 1050 n.3 (“[T]he burden was on Sheriff

Arpaio, not the plaintiffs, to prove current jail conditions.”).

Similarly, in Hedrick, the Ninth Circuit recognized

that it was “bound by Graves’ and Gilmore’s direct

holding.” 648 F. App’x at 716 n.1. It thus specifically

rejected the argument “that termination should have

followed automatically” once the defendants established “that (b)(1) allowed them to move for termination because enough time had passed.” Id. at 716. “Rather,” the Ninth Circuit said, “Defendants still were

required to meet the burden described above”—i.e., “to

demonstrate that there are no ongoing constitutional

violations, that the relief ordered exceeds what is necessary to correct an ongoing constitutional violation,

or both.” Id. (quoting Graves, 623 F.3d at 1048).

Most recently, confronted with arguments that

“the burden framework established in Graves and Gilmore‘is wrong,’” the Ninth Circuit refused to change

its position. Balla v. Idaho, 29 F.4th 1019, 1028 (9th

Cir. 2022). The rule, the Ninth Circuit continued, is

that “[t]he movant must prove ... that the (b)(3) limitation does not apply.” Id. “We are bound by the law of

our circuit, and only an en banc court or the U.S. Supreme Court can overrule a prior panel decision.” Id.

So, the Ninth Circuit “continue[s] to follow” its current

position, which places “the burden of proof [on] the

party seeking to terminate the prospective relief.” Id.

(quoting Gilmore, 220 F.3d at 1007).

But this continued position has not escaped criticism from within the Ninth Circuit. The district court

in Balla criticized the Ninth Circuit for not “adopt[ing]

what this Court believes is the better view, the view

more in keeping with the language of § 3626(b).” Balla

v. Idaho Bd. of Corr., 2019 WL 9831671, at *3 n.2 (D.

Idaho Apr. 18, 2019). The court explained that the better view is that § 3626(b) “set[s] forth a burden-shifting framework.” Id. at *3. Specifically, “the defendants

have the burden—as the moving party—of proving

that two years have passed since the relevant date under § (b)(1).” Id. If they “satisfy that initial burden,

then the statutory ‘limitation’ [in § 3626(b)(3)] would

allow the court to refuse termination only if the plaintiffs can prove that the relief satisfies the need-narrowintrusiveness requirements.” Id. The district court thus

emphasized that, if it “were writing on a clean slate, it

would so hold.” Id. But the court recognized that its

hands were tied by Graves and Gilmore—and thus,

“[t]his Court must follow Ninth Circuit precedent.” Id.

B. The First and Fifth Circuits, and Numerous Courts Within Other Circuits, Require

Movants to Show Only the Requisite Passage of Time, Recognizing That Plaintiffs

Bear the Burden to Prove That the Prospective Relief Satisfies the § 3626 (b)(3)

Factors.

The First and Fifth Circuits, by contrast, emphatically reject the Ninth Circuit’s view. And that is echoed by courts in numerous other circuits, including the

Second, Third, and Tenth Circuits.

First Circuit. Start with the First Circuit’s decision in Laaman, which is the foundation of the various

judicial decisions on this side of the circuit split.

Laaman addressed the question whether, in adjudicating a PLRA motion to terminate, a district court

must “afford inmates who allege ‘current and ongoing’

violations of federal rights the opportunity to supplement the existing record.” 238 F.3d at 15. In answering yes (at least sometimes), the First Circuit repeatedly emphasized that plaintiffs bear the burden to prevent automatic termination upon the timely filing of a

motion to terminate.

It recognized first that “[t]he district court [] found

that ‘plaintiffs have failed to demonstrate that a basis

currently exists for finding that the decree extends no

further than necessary to correct the violation of the

Federal right, or that the decree is narrowly drawn

and the least intrusive means to correct any alleged

violations of the plaintiffs’ federal rights.’” Id. at 18

(internal quotation marks omitted). The First Circuit

then adopted that view as its own. It held that the district court should give the plaintiffs “the opportunity

to demonstrate ‘current and ongoing’ violations of constitutional rights that would prevent termination of

the Consent Decree pursuant to § 3626 (b)(3).” Id. at

20. But the First Circuit went out of its way to emphasize that “the burden remains on the plaintiffs to show

that such violations persist.” Id.

Fifth Circuit. Three years later, the Fifth Circuit

added its now-longstanding view agreeing with

Laaman. In Guajardo, the district court held that the

Texas Department of Criminal Justice “was entitled to

termination [of a consent decree], unless plaintiffs established that the relief remained necessary to correct

an ongoing violation.” 363 F.3d at 394. On appeal, the

plaintiffs advanced the Ninth Circuit’s view, complaining that “the district court erred by ... placing the

burden of proof on them to show ongoing violations rather than requiring TDCJ, the party seeking relief, to

demonstrate none.” Id. at 394–95. The Fifth Circuit

rejected that view, citing Laaman and other cases.

The Fifth Circuit explained (as the Balla district

court did) that the PLRA’s termination provisions establish a burden-shifting framework. At the first step,

the movant, “in seeking termination, must initially establish the requisite passage of time” under

§ 3626(b)(1)(A)—i.e., one or two years, depending on

the particular circumstances. Id. at 395. If the movant

meets that burden, “the burden of proof then shifts to

the prisoners to demonstrate ongoing violations and

that the relief is narrowly drawn” as required by

§ 3626(b)(3). Id.

The Fifth Circuit did not think this was a close

question: “[A] plain reading of the PLRA, including its

structure, imposes the burden on the prisoners.” Id. at

395–96. Specifically, § 3626(b)(3) “places a limitation

on the termination of prospective relief under a consent decree if the court makes the requisite written

findings based on the record; but the burden of proof

to support these findings is obviously on the party opposing termination.” Id. at 396. For that reason, the

Fifth Circuit concluded that this burden “was allocated correctly to plaintiffs.” Id.

After Guajardo, the Fifth Circuit has reaffirmed its

view that the PLRA places on plaintiffs the burden to

avoid termination upon the filing of a timely motion to

terminate. See Brown, 929 F.3d at 228 (“We have held

that ‘the burden of proof to support these findings is

obviously on the party opposing termination.’” (quoting Guajardo, 363 F.3d at 396)); see id. at 254 (King,

J., concurring in part and concurring in the judgment)

(stating that “[t]he inmates [] fail[ed] to meet their

burden under the [PLRA] to continue the Consent Decree”).

Other Courts. This view also extends into other

circuits as well. Although the Third Circuit itself has

not directly addressed the issue, Guajardo invokes

then-Judge Alito’s decision for the Third Circuit in Imprisoned Citizens. See Guajardo, 363 F.3d at 395. In

that case, the Pennsylvania federal district court expressly stated that “the burden imposed by the

PLRA[’s termination provisions]” is that “inmates

prove a ‘current and ongoing violation’ of a federal

right.” Imprisoned Citizens Union v. Shapp, 11

F. Supp. 2d 586, 604 (E.D. Pa. 1998); see also id. at 606

(“[T]he plaintiffs have not attempted to establish the

facts necessary to meet the standard which would permit the Court to deny defendants’ Motion to Terminate.”).

The Third Circuit affirmed, although not on that

basis. See Imprisoned Citizens, 169 F.3d 178. But the

Fifth Circuit nonetheless counted the district court decision (“aff’d sub nom.” by the Third Circuit) as reflecting the position “held by most courts.” Guajardo, 363

F.3d at 395. And at least one other district court in the

Third Circuit has taken the same route, flagging the

Imprisoned Citizens district court decision as “aff’d on

other grounds sub nom.” United States v. Territory of

the Virgin Islands, 884 F. Supp. 2d 399, 415 (D.V.I.

2012) (citing Imprisoned Citizens, Guajardo, and

Laaman to hold that “Plaintiff bears the burden of

proving the existence of a ‘current and ongoing violation of a Federal right’ under § 3626(b)(3)”).

Similarly, courts within the Second and Tenth Circuits routinely cite some combination of Guajardo,

Laaman, and related decisions to reach the same result. See Benjamin v. Shriro, 2009 WL 3464286, at *4

(S.D.N.Y. Oct. 26, 2009) (“This Court previously has

found that, upon a termination motion, the burden is

on the Plaintiffs to show that the relief meets this

test.” (citing Guajardo)); Skinner v. Lampert, 457

F. Supp. 2d 1269, 1276 (D. Wyo. 2006) (“The burden is

upon the Plaintiffs to prevent termination of the Remedial Plan.” (citing Laaman and Guajardo)); Regan

v. Cnty. of Salt Lake, 2006 WL 3613217, at *3 (D. Utah

Dec. 11, 2006) (“Plaintiffs, who have the burden to

demonstrate ongoing violations[,] have not shown a

current and ongoing violation of a federal right of detainees, and more significantly, have not even alleged

any facts which, if true, would amount to a current and

ongoing violation.” (citing Guajardo) (footnote omitted)).

C. The Decision Below Brings This Split

Within the Fifth Circuit Itself.

Until the decision below, it was widely acknowledged that “[a] circuit split exists”—between the

Ninth Circuit on one side and the First and Fifth Circuits on the other side—“as to which party bears the

burden of demonstrating that there are, or are not, ongoing constitutional violations and that the relief is

narrowly drawn.” Busby v. Bonner, 2021 WL 4100290,

at *2 (W.D. Tenn. Aug. 30, 2021). But the decision below directly rejects the Fifth Circuit’s earlier decision

in Guajardo, creating an intra-circuit split that the en

banc Fifth Circuit refused to address and that is emblematic of the broader circuit split.

1. As recounted above, Guajardo held that the

PLRA’s termination provisions establish a two-step,

burden-shifting framework: (a) The movant need only

“initially establish the requisite passage of time” (under § 3626(b)(1)(A)); and then (b) “the burden of proof

[] shifts to the prisoners to demonstrate ongoing violations and that the relief is narrowly drawn” (under

§ 3626(b)(3)). 363 F.3d at 395. Nearly half of the Fifth

Circuit judges currently maintain that view.

“What must Sheriff Hutson do to move for termination of relief,” asked Judge Smith. App.73a. “Nothing but show the requisite passage of time—e.g., ‘2

years after the date the court granted or approved the

prospective relief.’” Id. (citation omitted). And Petitioner “has done just that” because “[m]ore than two

years have elapsed since” the 2019 Orders. Id. “She

need do nothing more.” Id. For “[f]rom that point onward, the PLRA shifts the burden to the parties opposing termination. It is their job—not Hutson’s—to provide sufficient proof to support the findings required

by § 3626(b)(3).” Id.

Similarly, Judge Oldham (on behalf of himself and

Judges Jones, Smith, and Duncan) emphasized that

“the Sheriff’s only burden is to make her motion ‘2

years after the date the court granted or approved the

respective relief.’” App.39a (citations omitted). “She

did that,” he explained—and “[a]fter that, the burden

shifts to the parties opposing termination to provide

sufficient evidence to support the findings required by

the limitation clause in § 3626(b)(3).” Id. at 40a; accord App.3a (Ho, J.) (“fully agree[ing] with that analysis”).

2. The Guajardo view is now in limbo, however, because the other half of the Fifth Circuit has rejected it.

The decision below does not (and cannot) dispute that

Petitioner carried her burden of showing that the requisite amount of time (two years) passed before she

filed her motion to terminate the prospective relief requiring the construction of Phase III. The majority below should have recognized that this undisputed fact

“then shift[ed] to the prisoners” the burden of proof to

prevent termination. Guajardo, 363 F.3d at 395. But

instead, the majority faulted Petitioner for not filing

what, in the majority’s view, is “a proper motion to terminate under the PLRA.” App.53a. Petitioner’s supposed sin? Her central claim is that § 3626(a)(1)(C)

bars the district court’s “build the prison” mandate,

while the panel required her also to argue that the

mandate “is no longer necessary to correct the existing

constitutional violations” under § 3626(b)(3). App.61a.

And that reasoning turns both the PLRA and

Guajardo “upside down.” App.73a (Smith, J.).

3. The inter- and intra-circuit splits on this issue

are compounded by the fact that a majority of the Fifth

Circuit refused to resolve the issue in an en banc decision. As a result, the existing circuit split is 2-1, but

without any clue as to whether the Fifth Circuit remains with the First or now stands with the Ninth.

Whatever the answer, there is a clear and intractable

split both within and without the Fifth Circuit that requires this Court’s intervention.

II. THE DECISION BELOW IS WRONG.

A. The PLRA’s Burden-Shifting Framework

Requires That a Movant Establish Only

the Requisite Passage of Time.

On the merits, the majority below is just wrong.

Text. Start with the text. The PLRA states that,

“[i]n any civil action with respect to prison conditions

in which prospective relief is ordered, such relief shall

be terminable upon the motion of any party or intervener ... 2 years after the date the court granted or approved the prospective relief.” § 3626(b)(1)(A)(i). It

then adds a “[l]imitation”: “Prospective relief shall not

terminate if the court makes written findings based on

the record that prospective relief remains necessary to

correct a current and ongoing violation of the Federal

right, extends no further than necessary to correct the

violation of the Federal right, and that the prospective

relief is narrowly drawn and the least intrusive means

to correct the violation.” § 3626(b)(3).

Those two provisions establish a straightforward

two-step, “burden-shifting framework that is familiar

to lawmakers from other contexts.” Balla, 2019 WL

9831671, at *3. First, the movant, “in seeking termination,” bears the burden of “initially establish[ing]

the requisite passage of time”—i.e., two years since entry of the challenged relief. Guajardo, 363 F.3d at 395.

Second, if the movant carries that burden, “the burden

of proof then shifts to the prisoners to demonstrate ongoing violations and that the relief is narrowly

drawn.” Id. (citing § 3626(b)(3)). Put otherwise, “if the

[movant] satisf[ies] that initial burden, then the statutory ‘limitation’ on the [movant’s] right to termination would allow the court to refuse termination only

if the plaintiffs can prove that the relief satisfies the

need-narrowness-intrusiveness requirements.” Balla,

2019 WL 9831671, at *3.

The upshot is that a movant like Petitioner may

file a motion to terminate for any reason or no reason

at all. So long as they show (as Petitioner did) that two

years have passed since the district court entered the

relevant orders, the PLRA requires nothing more of

them—for, at that point, the ball is in the plaintiffs’

court to prevent termination. App.73a (Smith, J.);

App.39a (Oldham, J.).

Context. Surrounding features of the PLRA reinforce this interpretation. For example, § 3626(a)(2) requires preliminary injunctive relief to “automatically

expire” 90 days after it is entered “unless”—among

other things—“the court makes the findings required

under subsection (a)(1)” (which track the § 3626(b)(3)

factors). § 3626(a)(2). Similarly, § 3626(e)(2) enters an

“automatic” stay of prospective relief 30 days after the

filing of a motion to modify or terminate the prospective relief. Miller, 530 U.S. at 337. And, in fact, Congress provided for an immediate appeal where “courts

[] circumvent[] the PLRA’s plain commands” by trying

to sidestep “the mandatory stay.” Id. at 339–40 (citing

§ 3626(e)(4)).

In each of these examples, the statutory default is

firmly in favor of pausing and terminating prospective

relief. It is thus unsurprising that § 3626(b) is structured in precisely the same way—requiring termination upon a timely filed motion, unless the § 3626(b)(3)

factors are satisfied. Given that overall theme, therefore, it would make no sense to conclude that the movant bears the burden to avoid the statutory default.

It is the plaintiff who wishes to maintain the prospective relief—and, thus, it is the plaintiff who logically

bears the burden to prevent termination under the

PLRA. Once the movant has established that the motion is timely, therefore, the movant has no other

pleading or evidentiary burden under § 3626(b).

History. This interpretation likewise accords with

“the entire purpose of the PLRA.” Balla, 2019 WL

9831671, at *3. “The PLRA attempts to eliminate unwarranted federal-court interference with the administration of prisons[.]” Woodford v. Ngo, 548 U.S. 81,

93 (2006). After all, “[f]ederal judges are particularly

ill-equipped to manage state prisons: ‘Three years of

law school and familiarity with pertinent Supreme

Court precedents give no insight whatsoever into the

management of social institutions.’” Valentine v. Collier, 993 F.3d 270, 294 (5th Cir. 2021) (Oldham, J., concurring in the judgment) (quoting Brown v. Plata, 563

U.S. 493, 558 (2011) (Scalia, J., dissenting)).

Yet that is the upside-down world endorsed by the

Ninth Circuit and the majority below. By their telling,

State and local officials affirmatively must prove that

interference with State and local prison administration is unwarranted. That is backwards. The PLRA

says such interference is impermissible unless plaintiffs can meet the demanding standards for prospective relief. And only Petitioner’s view properly respects that statutory design: Upon the timely filing of

a termination motion, termination is automatic, unless plaintiffs carry their burden to prevent termination under § 3626(b)(3).

B. The Ninth Circuit’s Side of the Circuit

Split Is Wrong.

To the extent the majority decision below reflects

the Ninth Circuit’s own view, the Ninth Circuit is

wrong. First, the Ninth Circuit invoked Rule 60(b)(5)

and imported its burden framework into the PLRA.

Gilmore, 220 F.3d at 1007. Despite admitting that,

“[o]bviously, the PLRA creates a more exacting standard for federal courts to follow,” the Ninth Circuit concluded that—as in Rule 60(b)(5) cases—“the burden of

establishing such a change rests on the party seeking

modification.” Id.

The Ninth Circuit is wrong. For the reasons just

explained, the PLRA’s text, context, and history refute

the Ninth Circuit’s reading. But, more fundamentally,

the Ninth Circuit’s view renders the PLRA’s termination provisions superfluous; for defendants like Petitioner already had Rule 60(b)(5) in their toolbox. In

fact, and if anything, the Ninth Circuit’s view means

that the PLRA makes it harder for defendants to terminate prospective relief—because they must satisfy

not only Rule 60(b)(5)’s dictates but also the

§ 3626(b)(3) factors. That makes zero sense.

As Judge Smith explained, “[t]he PLRA expressly

provides that motions to terminate exist in addition to

‘otherwise ... legally permissible’ grounds for modification and termination.” App.71a n.7 (Smith, J.) (quoting § 3626(b)(4)). Conflating Rule 60(b)(5) and the

PLRA’s termination provisions—as the Ninth Circuit

has done—is thus misguided.

Second, in justifying its view, the Ninth Circuit

complained about giving up a district court’s “equitable discretion.” Gilmore, 220 F.3d at 1007. But “curbing the equitable discretion of district courts was one

of the PLRA’s principal objectives.” Miller, 530 U.S. at

339. The Ninth Circuit’s death grip on such discretion

thus betrays the mistake in that court’s approach to

the PLRA.

Finally, the Ninth Circuit worried that a district

court’s determination to keep prospective relief “requires real adjudication—the careful application of

law to fact—not the wooden ratification of a legislatively prescribed conclusion.” Gilmore, 220 F.3d at

1008. That may well be correct, assuming a plaintiff

actually attempts to prevent termination by proving

up the § 3626(b)(3) factors. But this point does not answer the question who bears the burden to supply the

relevant arguments and evidence in the first instance—and whether a movant bears any burden

other than establishing that the termination motion is

timely.

At bottom, the Ninth Circuit (as well as the majority below) is simply wrong in holding that a movant

must establish something more than the requisite passage of time to secure termination of the challenged

prospective relief.

III. THE QUESTION PRESENTED IS “OBVIOUSLY IMPORTANT.”

The issues presented by this case also are “obviously important.” App.3a (Ho, J.). There are at least

four overarching ways in which this is true.

First, as detailed above, supra Section I, the jurisprudence is a mess. It was a mess before the majority

decision below because of the circuit split. But it is

even messier now that the Fifth Circuit has dueling

decisions. This Court should thus intervene to correct

course both inside and outside the Fifth Circuit.

Second, the majority decision below “takes a

hatchet to the [PLRA].” App.64 (Smith, J.). If the

Court does not intervene, plaintiffs in the Fifth Circuit

(now, in addition to the Ninth Circuit) will cite the majority decision below in inappropriately foisting plaintiffs’ own PLRA burden onto States and localities,

which are statutorily entitled to automatic termination under the PLRA. And those who seek termination

in two of the largest federal courts of appeals where

PLRA litigation is especially pervasive will have no recourse.

Third, this issue is uniquely important because it

exemplifies a larger problem in the Fifth Circuit. The

decision below is one of two recent (and published)

PLRA decisions in which the Fifth Circuit has attempted to foreclose appellate review of PLRA problems. In Parker v. Hooper, 128 F.4th 691 (5th Cir.

2025) (per curiam), the Fifth Circuit refused (under either 28 U.S.C. § 1291 or § 1292(a)(1)) to allow Louisiana to appeal a final judgment that (a) “closed” decade-long litigation over conditions at the State’s largest prison, (b) ordered the plaintiffs to move for attorney’s fees as “prevailing parties,” and (c) ordered the

State to provide “special masters” immediate access to

the prison, prisoners, and records and pay for said

masters’ activities. See id. at 710 (Jones, J., dissenting) (“How preposterous. And unauthorized.”).

The Fifth Circuit has requested a response to the

State’s en banc petition in that case. But whether the

Fifth Circuit itself fixes the Parker problem or not, the

broader effort to undercut the PLRA is unmistakable.

The Court should thus take into account the potentially sweeping ramifications of this effort absent the

Court’s intervention.

Finally, the issue presented is, of course, important

to Petitioner herself and the New Orleanians whose

taxpayer dollars are on the line. Even the Magistrate

registered “sticker shock” in response to the Phase III

price tag, “above $100 million.” App.132a. With so

much money on the line, therefore, the core legal question in this case plainly warrants the Court’s review.

IV. THIS CASE IS AN IDEAL VEHICLE.

1. Finally, this case is an exceptional vehicle to decide the question presented. As recounted above, that

issue presents a clean question of statutory interpretation: Does the framework in § 3626(b) impose on a

movant seeking termination any affirmative burden

beyond showing the requisite passage of time? The answer to that question is not fact-bound in any way.

And if the Court answers “no” (as it should), then the

Court need only reverse the decision below on that basis alone and remand for further proceedings.

Reversal would require the majority below to ask

and answer—for the first time—whether the United

States and the private plaintiffs carried their burden

to prevent termination of the prospective relief requiring the construction of Phase III by satisfying the

§ 3626(b)(3) factors. The majority below never did so

because it required Petitioner to show more than the

requisite passage of time in filing her termination motion. By correcting that error, this Court’s reversal will

thus properly send the case back for a do-over under

the proper burden-shifting framework.

2. Petitioner notes that the majority below included approximately three to four statements at the

end of its opinion that appear intended to insulate the

opinion from this Court’s review. See App.61a–63a.

These faux alternative holdings (under a misapprehension of the PRLA’s burden-shifting framework, no

less) cannot keep the case out of this Court’s hands.

First, the panel stated (in one sentence) that the

denial of Petitioner’s termination motion was proper

because “the district court’s 2023 order includes the

PLRA findings that ‘prospective relief’ extends ‘no further than necessary to correct the violation of the Federal right’ in this case”—so no § 3626(b)(3) problem.

App.62a. Demonstrably wrong.

As Judges Smith and Oldham explained, the district court’s decision quite literally never identifies

any specific conditions that constitute a current and

ongoing violation of a federal right, let alone specifies

how the “build the prison” mandate is narrowly

drawn. App.75a–78a (Smith, J.); App.40a–41 (Oldham, J.). Judge Smith aptly summed up the problem:

“[T]he [district] court’s analysis leaves us with no idea

what the current violations are (if any), how any violations are addressed by the consent judgment’s conditions (if they are at all), or why those conditions are

the least intrusive means to remedy the violation.”

App.77a; see id. at 78a (“The PLRA does not allow the

district court to deny termination of relief merely by

speculating that ‘there is no reason to think that

Phase III is no longer necessary.’”). And this Court

does not need to take Judges Smith and Oldham’s

word for it; the district court’s failure to comply is

readily apparent on the face of its own decision. See

App.103a.

On remand, therefore, that defect will independently require the Fifth Circuit to reverse the denial of Petitioner’s termination motion. And if the

Court wishes, it may include one sentence in its decision stating that the Fifth Circuit should reconsider

the issue in the first instance.

Second, the majority stated that “[t]he district

court has also made abundantly clear that it did not

order the construction of a prison”—so no

§ 3626(a)(1)(C) problem. App.62a; see § 3626(a)(1)(C)

(“Nothing in this section shall be construed to authorize the courts, in exercising their remedial powers, to

order the construction of prisons[.]”). Again, with great

respect, the majority is not forthcoming.

However the Court conceives of what the district

court has done in this case, § 3626(b)(3)—through the

limitation set out in § 3626(a)(1)(C)—requires “the termination of current, ongoing prospective relief that orders the construction of prisons.” App.41a (Oldham,

J.); see App.79a (Smith, J.) (“Section 3626(b)(3) is constrained by § 3626(a)(1)(C), which applies to all parts

of § 3626.”). Put otherwise, a district court’s ordering

the construction of a jail “can never qualify as preliminary relief that, in the words of § 3626(a)(1)(C), ‘shall

not terminate’ under § 3626(b)(3).” App.79a (Smith,

J.). It thus would not matter “if the district court

makes more [§ 3626(b)(3)] findings on remand,” for it

has no authority to “continue[] enforcing prospective

relief relating to the construction of the Phase III facility.” App.79a–80a (Smith, J.).

Here, too, this defect will independently require

the Fifth Circuit to reverse the denial of Petitioner’s

termination motion. And if the Court wishes, it may

(but need not) add a sentence in its decision instructing the Fifth Circuit to reconsider the issue under the

proper burden-shifting framework.

Third, the majority stated that Petitioner’s motion

is “premature” because “Phase III is ‘in progress at

12.82% complete’ and the Sheriff and the City have

been slow to effectuate any stipulated remedy.”

App.63a. No. Judge Oldham described the majority as

“simply incoherent” on this point because Petitioner’s

motion

unquestionably

timely

under

§ 3626(b)(1)(A)—and nothing in the PLRA permits a

district court to decline to adjudicate a termination

motion simply because the movant has not effectuated

the prospective relief quickly enough (and the district

court did not even do so). App.37a (Oldham, J.).

3. Petitioner also notes that the majority’s handwringing about appellate jurisdiction is a red herring.

The majority expressly acknowledged—and in fact,

the private “Plaintiffs and the United States argue[d]”—that the Fifth Circuit had “jurisdiction over

the denial of [the] motion to terminate.” App.50a. The

majority limited its exercise of that jurisdiction, however, to reviewing what, in the majority’s view, is “a

proper motion to terminate under the PLRA”—i.e., the

precise question addressed in the issue presented.

App.53a; see App.67a (Smith, J.) (“Denials of motions

to terminate under the PLRA are treated as ‘refusal[s]

to dissolve an injunction.’ … That alone ends the jurisdictional dispute.” (quoting Ruiz v. United States, 243

F.3d 941, 945 (5th Cir. 2001) (first alteration in original))). Accordingly, this Court’s reversal on the issue

presented would confirm the Fifth Circuit’s jurisdiction to review and reverse the denial of Petitioner’s

termination motion. Cf. App.15a (Oldham, J.) (describing the majority’s decision as “jurisdictionally

dysphoric”); id. at 37a (“The panel’s chimerical holdings—part jurisdictional, part merits—are ... malformed hybrid monsters.”).

4. Finally, these remarkable facts offer the perfect

vehicle to address the question presented: In a post-

PLRA world, a federal district court is threatening a

local sheriff with “severe sanctions” and “contempt” if

she does not build a jail fast enough. App.82a. If that

sounds familiar, that is because these facts “harken[]

back to the institutional-reform litigation of yesteryear—back before the [PLRA], when federal supervision of state prisons was normal.” Valentine, 993 F.3d

at 291 (Oldham, J., concurring in the judgment). Indeed, that is why the PLRA expressly states that

“[n]othing” within its terms “shall be construed to authorize the courts, in exercising their remedial powers,

to order the construction of prisons[.]” § 3626(a)(1)(C).

What better vehicle to correct a misunderstanding

about the PLRA’s burden-shifting framework, therefore, than one that “takes a hatchet to the [PLRA].”

App.64a (Smith, J.).

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

JOSHUA S. FORCE

DAVID A. MARCELLO

CURTIS J. CASE

SHER GARNER CAHILL

RICHTER KLEIN &

HILBERT, L.L.C.

909 Poydras St.,

28th Floor

New Orleans, LA

70112

JOHN S. WILLIAMS

YOLANDA MARTINSINGLETON

ORLEANS PARISH SHERIFF’S OFFICE

2800 Perdido St.

New Orleans, LA

70119

ELIZABETH B. MURRILL

Attorney General

J. BENJAMIN AGUIÑAGA

Solicitor General

Counsel of Record

ZACHARY FAIRCLOTH

Principal Deputy

Solicitor General

KELSEY L. SMITH

Deputy Solicitor General

LOUISIANA DEPARTMENT OF

JUSTICE

1885 N. Third St.

Baton Rouge, LA 70802

(225) 506-3746

AguinagaB@ag.louisiana.gov

APPENDIX

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR T H E FI F T H CIRCU I T, FILED

JANUARY 28, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

A P P E N DI X B — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR T H E FI F T H CIRCU I T, FILED

AUGUST 26, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . 43a

APPENDIX C — ORDER & REASONS OF

THE UNITED STATES DISTRICT COURT,

EASTERN DISTRICT OF LOUISIANA,

FILED SEPTEMBER 5, 2023 . . . . . . . . . . . . . . . . 81a

A PPEN DI X D — OR DER OF T H E

UNITED STATES DISTRICT COURT

FOR T H E E A S T ER N DI ST RIC T OF

LOUISIANA, FILED JULY 19, 2023 . . . . . . . . . 107a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT, FILED JANUARY 28, 2025

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 23-30633

KENT ANDERSON; STEVEN DOMINICK;

ANTHONY GIOUSTAVIA; JIMMIE JENKINS;

GREG JOURNEE; RICHARD LANFORD;

LEONARD LEWIS; EUELL SYLVESTER;

LASHAWN JONES,

Plaintiffs-Appellees,

UNITED STATES OF AMERICA,

Intervenor Plaintiff-Appellee,

SUSAN HUTSON, SHERIFF, ORLEANS PARISH,

SUCCESSOR TO MARLIN N. GUSMAN,

Defendant/Third Party Plaintiff-Appellant,

CITY OF NEW ORLEANS,

Third Party Defendant-Appellee.

Appendix A

Filed January 28, 2025

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:12-CV-859

Before Smith, Wiener, and Douglas, Circuit Judges.

ON PETITION FOR REHEARING EN BANC

Before Smith, Wiener, and Douglas, Circuit Judges.

Per Curiam:

Treating the petition for rehearing en banc as a

petition for panel rehearing (5th Cir. R. 35 I.O.P.), the

petition for panel rehearing is DENIED. The petition for

rehearing en banc is DENIED because, at the request of

one of its members, the court was polled, and a majority

did not vote in favor of rehearing (Fed. R. A pp. P. 35 and

5th Cir. R. 35).

In the en banc poll, six judges voted in favor of

rehearing, Judges Jones, Smith, Richman, Ho, Duncan,

and Oldham, and eleven judges voted against rehearing,

Chief Judge Elrod, and Judges Stewart, Southwick,

Haynes, Graves, Higginson, Willett, Engelhardt, Wilson,

Douglas, and Ramirez.

Appendix A

James C. Ho, Circuit Judge, dissenting from denial of

rehearing en banc:

The panel majority dismissed this appeal for lack

of jurisdiction. See Anderson v. Hutson, 114 F.4th 408,

421 (5th Cir. 2024). I would reach the merits and reverse

the district court, and accordingly voted to rehear this

obviously important case en banc. To begin with, we have

jurisdiction under 28 U.S.C. § 1292(a)(1), because the

district court’s denial of the motion to terminate is an

appealable interlocutory order. See Ruiz v. United States,

243 F.3d 941, 945 (5th Cir. 2001); Abbott v. Perez, 585 U.S.

579, 594 (2018). And as to the merits, the decision of the

district court does not comply with the Prison Litigation

Reform Act. See 18 U.S.C. §§ 3626(a)(1)(C), (b)(3); Ruiz,

243 F.3d at 950. My dissenting colleagues detail the

substantive legal reasons why I reach these conclusions,

and I fully agree with that analysis.

Appendix A

A ndrew S. Oldham, Circuit Judge, joined by Jones,

Smith, and Duncan, Circuit Judges, dissenting from the

denial of rehearing en banc:

The Prison Litigation Reform Act prohibits federal

courts from ordering the construction of prisons or

enforcing consent decrees and settlement agreements that

provide for the construction of prisons. Such prospective

relief exceeds the remedial authority of federal courts. See

Miller v. French, 530 U.S. 327, 347 (2000). The district

court nevertheless ordered the New Orleans Parish

Sheriff and the City of New Orleans to build a prison

and then denied the Sheriff’s motion under the statute to

terminate that prospective relief.

Bizarrely, the panel in this case dismissed the Sheriff’s

appeal for lack of appellate jurisdiction. That dismissal

was egregiously wrong; defied landmark jurisdictional

precedents stretching from Hayburn’s Case to Steel Co.;

and “force[d] the political subdivision of a coordinate

sovereign to build a prison, in conformance with that

court’s specifications, under express threats of ‘severe

sanctions’ and ‘contempt of court’” in violation of federal

law. Anderson v. Hutson, 114 F.4th 408, 422 n.5 (5th Cir.

2024) (“Anderson II”) (Smith, J., dissenting). The en

banc court should have granted rehearing. I respectfully

dissent.

Appendix A

Before getting to the facts and procedural history

of this case, I explain (1) the nature of prospective relief

in consent decrees, (2) the limits Congress has placed on

federal courts’ remedial authority in prison litigation, and

(3) the appealability of motions to terminate prospective

relief in prison litigation.

In federal court, a consent decree is an agreement

by parties to waive their rights to litigate issues involved

in their case, typically embodying a compromise where

the defendant agrees to change its conduct under the

supervision of the district court. See United States v.

Armour & Co., 402 U.S. 673, 681 (1971). Despite “closely

resembl[ing] contracts,” consent decrees also “bear some

of the earmarks of judgments.” Int’l Ass’n of Firefighters,

AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 519

(1986). They are enforceable by a court and “subject to

the rules generally applicable to other judgments and

decrees.” Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S.

367, 378 (1992). Hence the Supreme Court’s comment

that consent decrees have a “hybrid nature.” Int’l Ass’n

of Firefighters, 478 U.S. 501 at 519.

Consent decrees must protect federal interests, and

they are generally limited to addressing the “general

scope of the case made by the pleadings,” and they must

Appendix A

“further the objectives of the law upon which the complaint

was based.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431,

437 (2004). Consent decrees between private parties

and States or political subdivisions have arisen in many

areas of federal law, and they often involve prospective

injunctive relief requiring States or political subdivisions

to correct ongoing violations of federal rights.1 Compliance

with prospective relief issued under a consent decree is

enforceable by contempt proceedings in the issuing court.

Int’l Ass’n of Firefighters, 478 U.S. at 523.

Although consent decrees are “enforceable in the

same way as court injunctions,” they do not require any

“determination by the court either that the party thus

bound had violated the law or that the relief thus granted

was legally warranted.” Michael W. McConnell, Why Hold

Elections? Using Consent Decrees to Insulate Policies

from Political Change, 1987 U. Chi. Legal F. 295, 296. And

the prospective relief ordered under a consent decree may

“sweep more broadly” than the relief a “court could have

awarded after a trial.” Smith v. Sch. Bd. of Concordia,

906 F.3d 327, 335 (5th Cir. 2018) (quoting Int’l Ass’n

of Firefighters, 478 U.S. at 525). 2 But that scope is not

1. For example, Frew involved States’ obligations under

Medicaid. Miller and Rufo involved prison conditions. International

Ass’n of Firefighters involved government hiring. And Board of

Education of Oklahoma City v. Dowell, 498 U.S. 237 (1991),

involved school desegregation.

2. I note that consent decrees and injunctions in institutional

reform litigation “often raise sensitive federalism concerns,” Horne

v. Flores, 557 U.S. 433, 448 (2009), which loom over this case. These

concerns have generated plentiful judicial criticism. See, e.g., ibid.;

Appendix A

unlimited. Because the court’s “remedial authority” over

the case “derives from the consent decree” itself, Smith,

906 F.3d at 334, the “scope of a consent decree” is limited

to its “four corners,” Armour & Co., 402 U.S. at 682.

Federal judges’ powers to govern States via consent

decrees are limited in other ways, too. In 1996, Congress

passed the Prison Litigation Reform Act (“PLRA”). Pub.

L. No. 104-134, 110 Stat. 1321 (codified at 18 U.S.C. § 3626).

Missouri v. Jenkins, 515 U.S. 70, 131 (1995) (Thomas, J., concurring)

(“A structural reform decree eviscerates a State’s discretionary

authority over its own program and budgets and forces state officials

to reallocate state resources and funds to the [court-ordered plan]

at the expense of other citizens, other government programs, and

other institutions not represented in court.”); Frew, 540 U.S. at 441

(“[R]emedies outlined in consent decrees involving state officeholders

may improperly deprive future officials of their designated legislative

and executive powers. They may also lead to federal-court oversight

of state programs for long periods of time even absent an ongoing

violation of federal law.”); Valentine v. Collier, 993 F.3d 270, 291 (5th

Cir. 2021) (Oldham, J., concurring) (“[F]ederal supervision of state

prisons . . . is unlawful” and “imposes grave federalism costs that

should be avoided not celebrated.”).

And powerful scholarly criticism too. McConnell, supra, at

297 (“To the extent that consent decrees insulate today’s policy

decisions from review and modification by tomorrow’s political

processes, they violate the democratic structure of government.”);

see also generally Michael T. Morley, Consent of the Governed or

Consent of the Government? The Problems with Consent Decrees

in Government-Defendant Cases, 16 U. Pa. J. Const. L. 637 (2014)

(arguing that consent decrees raise Article III and separation of

powers concerns).

Appendix A

It recognized that “[f]ederal judges are particularly

illequipped to manage state prisons.” Valentine v. Collier,

993 F.3d 270, 294 (5th Cir. 2021) (Oldham, J., concurring).

And it was designed to bring “prisoner litigation in the

federal courts . . . under control.” Woodford v. Ngo, 548

U.S. 81, 84 (2006).

The PLRA limits the remedial power of district courts

in prison litigation by restricting “courts’ authority to

issue and enforce prospective relief concerning prison

conditions.” Miller, 530 U.S. at 347. “The PLRA strongly

disfavors continuing relief through the federal courts;

indeed, its fundamental purpose was to extricate them

from managing state prisons.” Brown v. Collier, 929 F.3d

218, 228 (5th Cir. 2019) (quoting Guajardo v. Tex. Dep’t of

Crim. Just., 363 F.3d 392, 394 (5th Cir. 2004) (per curiam)).

The PLRA provides “standards for the entry

and termination of prospective relief in civil actions

challenging conditions at prison facilities.” Miller, 530

U.S. at 331. One of those standards is that a court “shall

not grant or approve any prospective relief unless the

court finds that such relief is narrowly drawn, extends

no further than necessary to correct the violation of the

Federal right, and is the least intrusive means necessary

to correct the violation of the Federal right.” Id. at 333

(quoting 18 U.S.C. § 3626(a)(1)(A)). That standard also

applies to existing injunctions. See ibid. (citing 18 U.S.C.

§ 3626(b)(2)).

The PLRA also specifies that “[n]othing in this section

shall be construed to authorize the courts, in exercising

Appendix A

their remedial powers, to order the construction of

prisons.” 18 U.S.C.A. § 3626(a)(1)(C). And it prohibits court

enforcement of consent decrees and private settlement

agreements that fail to “comply with the limitations set

forth in subsection (a),” id. § 3626(c)(1), (2), including

the prohibition against orders to construct new prisons

provided by § 3626(a)(1)(C). These limitations apply

irrespective of the validity of the prospective relief at the

time it was issued by a court. See Miller, 530 U.S. at 34748. Accordingly, the PLRA provides no way for a court to

order the construction of a prison, either directly or via

the enforcement of private agreements.

If prospective relief “d[id] not satisfy these standards”

when it was granted, “a defendant or intervenor is entitled

to ‘immediate termination’ of that relief.” Miller, 530 U.S.

at 331 (emphasis added) (quoting 18 U.S.C. § 3626(b)(2)).

In other words, the statute “prohibits the continuation

of prospective relief” that did not meet the statute’s

standards ab initio. Miller, 530 U.S. at 346. And “the

PLRA entitles a State to terminate” any prospective

relief concerning prison litigation still in place “after

two years.” Brown v. Plata, 563 U.S. 493, 515 (2011); see

also 18 U.S.C. § 3626(b)(1)(A)(i) (“In any civil action with

respect to prison conditions in which prospective relief is

ordered, such relief shall be terminable upon the motion

of any party or intervener 2 years after the date the court

granted or approved the prospective relief.” (cleaned up)).

The PLR A’s presumption against continuing

prospective relief is so strong that it expressly authorizes

mandamus actions to “remedy any failure to issue a prompt

10a

Appendix A

ruling on such a motion.” Id. § 3626(e)(1). And “[a]ny motion

to modify or terminate prospective relief” triggers an

“automatic stay” of the prospective relief starting 30 days

after the motion is filed. Id. § 3626(e)(2); see also Miller,

530 U.S. at 350 (upholding the constitutionality of the

automatic stay and noting that “Congress clearly intended

to make operation of the automatic stay mandatory”).

The movant’s right to terminate prospective relief

two years after it was granted is subject to the limitations

of § 3626(b)(3). That provision limits the termination of

such prospective relief when “the district court finds

that the relief ‘remains necessary to correct a current

and ongoing violation of the Federal right,’” Plata, 563

U.S. at 515 (emphasis added) (quoting 18 U.S.C. § 3626(b)

(3)), “extends no further than necessary to correct the

violation of the Federal right,” and “is narrowly drawn

and the least intrusive means to correct the violation,”

18 U.S.C. § 3626(b)(3). The district court’s findings must

be “written” and “based on the record.” Ibid. And “the

burden of proof to support these findings is obviously on

the party opposing termination,” Collier, 929 F.3d at 228

(quoting Guajardo, 363 F.3d at 396), not the movant.

Denials of motions to terminate prospective relief

under the PLRA are appealable as interlocutory orders

“refusing to dissolve . . . injunctions.” 28 U.S.C. § 1292(a)

(1). Long-settled precedent in our circuit so holds. See

Ruiz v. United States, 243 F.3d 941, 945 (5th Cir. 2001)

(“[T]his Court has jurisdiction over the appeal of both

11a

Appendix A

orders under 28 U.S.C. § 1292(a)(1) as refusals to dissolve

an injunction.”).

Congress has granted this court jurisdiction over

appeals from “[i]nterlocutory orders of the district courts

of the United States . . . granting, continuing, modifying,

refusing or dissolving injunctions, or refusing to dissolve

or modify injunctions.” 28 U.S.C. § 1292(a)(1). This statute

carves out an exception to the “general principle that

only final decisions of the federal district courts would be

reviewable on appeal.” Carson v. Am. Brands, Inc., 450

U.S. 79, 83 (1981) (citing 28 U.S.C. § 1291). Unlike other

interlocutory orders, orders concerning injunctions are

“immediately appealable as of right.” Ali v. Quarterman,

607 F.3d 1046, 1048 (5th Cir. 2010) (quotation omitted).

It does not matter whether the word “injunction”

appears on a district court’s order because “the label

attached to an order is not dispositive.” Abbott v. Perez,

585 U.S. 579, 594 (2018). If “an order has the ‘practical

effect’ of granting or denying an injunction, it should be

treated as such for purposes of appellate jurisdiction.”

Ibid. (quoting Carson, 450 U.S. at 83). In practice, a court

“grants an injunction when an action it takes is directed to

a party, enforceable by contempt, and designed to accord

or protect some or all of the substantive relief sought in

the complaint in more than a temporary fashion.” In re

Deepwater Horizon, 793 F.3d 479, 491 (5th Cir. 2015)

(quotation omitted).

None of this turns on an “individualized jurisdictional

inquiry.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100,

12a

Appendix A

107 (2009) (quoting Coopers & Lybrand v. Livesay, 437

U.S. 463, 473 (1978)). That means “[a]ppeal rights cannot

depend on the facts of a particular case.” Carroll v. United

States, 354 U.S. 394, 405 (1957). The appeals court is not

supposed to scrutinize individually every order that gets

appealed to it, looking for “particular injustice[s]” that

might be “averted” or whether the “litigation at hand”

might benefit from an appeal of that order. Mohawk

Indus., 558 U.S. at 605 (quoting Digital Equip. Corp. v.

Desktop Direct, Inc., 511 U.S. 863, 868 (1994)). Instead,

the inquiry focuses on “the entire category to which a

claim belongs.” Ibid.

This appeal arises out of longstanding constitutional

litigation about conditions at the Orleans Parish Prison

relating to detainees with mental-health needs. The

procedural history of this litigation is lengthy and complex,

stretching back to a consent decree entered in 2013. The

two panel opinions in this case provide the factual and

procedural background. See Anderson v. City of New

Orleans, 38 F.4th 472, 472-78 (5th Cir. 2022) (“Anderson

I”); Anderson II, 114 F.4th at 408-14. The instant appeal

involves the district court’s denial of a motion to terminate

prospective relief that requires New Orleans Parish

Sheriff Hutson (“the Sheriff”) to construct a new prison

facility. Anderson II, 114 F.4th at 412.

In 2016, the parties implemented their consent

decree via an agreement that the district court entered

13a

Appendix A

as a stipulated order (“Stipulated Order”). Ibid. The

Stipulated Order stated that “the City, the Sheriff, and the

Compliance Director shall develop and finalize a plan for

. . . appropriate housing for prisoners with mental health

issues and medical needs.” Id. at 413. The Compliance

Director’s plan recommended construction of “Phase

III,” a new facility at the existing jail designed to house

detainees with mental-health needs. Ibid.

In January 2019, the district court ordered the City of

New Orleans (the “City”) to begin the construction of the

Phase III jail facility and related programming “as soon

as possible.” ROA.13075. Then, in March 2019, the district

court ordered the City to continue renovating the existing

“temporary accommodations” for the prison’s detainees

with mental-health conditions during the construction

of the Phase III jail facility, and it ordered the City and

Sheriff to continue the “programming” aspect of Phase

III. ROA.13225. It also ordered the City to provide

monthly progress reports concerning the construction

of the Phase III jail facility. I refer to the January and

March orders as the “2019 Orders.”

In June 2020, the City moved under Federal Rule of

Civil Procedure 60(b)(5) for relief from the 2019 Orders,

arguing that “significant change[s] in the factual conditions

. . . render programming, design, and construction of the

Phase III jail facility unsustainable.” ROA.14102. It argued

that the prison provided “medical and mental healthcare

that is above the minimal constitutional standard”;

the “COVID-19 pandemic w[ould] cause a significant

budgetary shortfall for the City”; and “the decrease in the

14a

Appendix A

inmate population ma[de] the programming, design, and

construction of a new Phase III jail facility unnecessary.”

ROA.14104. The City also argued that § 3626(a)(1)(C) of

the PLRA prohibited the district court from ordering the

construction of Phase III.

The district court adopted the magistrate judge’s

report and recommendation to deny the City’s Rule 60(b)

(5) motion. The district court found that the City had

waived its PLRA argument and, in any event, that the

court had never ordered the construction of the Phase III

jail facility. Instead, the district court found that it had

merely enforced the City’s contractual obligation under

the Stipulated Order to build the Phase III jail facility.

The district court also held that the City failed to show

changed factual conditions. The City appealed.

In Anderson I, a panel of this court affirmed. 38 F.4th

at 481. That panel refused to rule on the City’s PLRA

argument because “Rule 60(b)(5) may not be used to

challenge the legal conclusions on which a prior judgment

or order rests.” Id. at 478 (quoting Horne v. Flores, 557

U.S. 433, 477 (2009)). In its view, the panel “lack[ed]

jurisdiction to review the substance of the January and

March 2019 orders” from which the City sought relief.

Ibid. Accordingly, the panel evaluated the City’s PLRA

argument only to the extent it constituted a change in

factual conditions or law per Rule 60(b)(5). Id. at 479.

Under that abuse-of-discretion review, the panel held that

the City’s PLRA claim failed. Ibid.

15a

Appendix A

Then, in June 2023, the Sheriff moved under the

PLRA, 18 U.S.C. § 3626(b), to “terminate all prospective

relief regarding the construction of the Phase III jail.”

ROA.19054. The Sheriff argued that the district court had

ordered “the parties to abide by their private agreement

to build” the Phase III jail facility, ROA.19055, which is

forbidden by the PLRA, see 18 U.S.C. § 3626(c)(2), (g)(6).

The district court adopted the magistrate judge’s

report and recommendation to deny the Sheriff ’s

motion to terminate. It also entered an “Order Setting

Conditions of Construction” for the Phase III jail facility,

which incorporated the terms of a previous, unsigned

Cooperative Endeavor Agreement (“CEA”) between the

City and The Sheriff. The Sheriff appealed.

A panel of this court dismissed the Sheriff’s appeal

for lack of appellate jurisdiction. Anderson II, 114 F.4th at

412, 418, 421. The panel’s opinion is sometimes inscrutable,

sometimes inconsistent, and jurisdictionally dysphoric.

As Judge Smith noted in his powerful dissenting opinion:

“[The majority] takes a hatchet to the [PLRA] and turns

a blind eye to binding circuit precedent. The result? An

opinion with reasoning that, at every turn, is fatally

compromised. Some parts are totally unhinged. And the

remainder is incomprehensible.” Id. at 421 (Smith, J.,

dissenting).

16a

Appendix A

Here, I do my best to explicate the panel’s reasoning

in service of criticizing it. There seem to be three holdings:

(1) the panel lacked appellate jurisdiction over the denial

of the motion to terminate to the extent it was really an

appeal of the 2019 Orders; (2) the motion to terminate

itself, to the extent it was a bona fide motion to terminate,

was inadequately pleaded and therefore destroyed

jurisdiction; and (3) even if the panel could reach the

merits, a motion to terminate was premature, somehow

also destroying jurisdiction.

The panel first explained why it had “jurisdiction to

review the denial of the . . . motion, but not the underlying

. . . orders.” Id. at 415 (majority opinion) (quoting Anderson

I, 38 F.4th at 477-78; citing Ruiz, 243 F.3d at 945).

The panel’s analysis proceeded as if the Sheriff had

attempted to appeal the 2019 Orders directly, rather

than the district court’s denial of her motion to terminate

prospective relief under the PLRA. Acknowledging

that the Sheriff “styled her motion as one to ‘terminate’

rather than vacate or reverse the Phase III orders,” the

panel claimed that the Sheriff “[wa]s directly attacking

the validity of the orders as being prohibited under the

PLRA.” Id. at 416. 3 The panel then accused the Sheriff of

3. The panel supports this point by analogy to Moody

National Bank v. GE Life & Annuity Assurance Co., 383 F.3d

249 (5th Cir. 2004). In that case, this court held that “a motion

to allocate costs” that was labeled as a Rule 59(e) motion should

be characterized as a Rule 54(d) motion instead. Id. at 251. This

17a

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“attempt[ing] to circumvent procedural history and rules

under the guise of a PLRA motion.” Id. at 418 n.13. Thus,

to the panel, the Sheriff’s “filing is a ‘motion to terminate’

in name only.” Id. at 419. 4 The panel held this destroyed

§ 1292(a)(1) jurisdiction for three reasons.

First, the panel construed the district court’s denial

of the Sheriff’s motion as an implementation of its prior

orders. See id. at 416. The panel reasoned that “a court has

not modified an injunction when it simply implements an

injunction according to its terms or designates procedures

for enforcement without changing the command of the

injunction.” Id. at 415 (quoting In re Deepwater Horizon,

court reasoned that “any post-judgment motion addressing costs

or attorney’s fees must be considered a collateral issue even when

costs or attorney’s fees are included in a final judgment.” Id. at

253. But without more, that logic does not extend to equate PLRA

motions to terminate prospective relief with direct appeals of

orders.

4. Why does the panel reach this conclusion, despite Ruiz’s

clear statement that a denial of a motion to terminate categorically

is, in substance, a refusal to dissolve an injunction that grounds

jurisdiction under § 1292(a)(1), which the panel cites? Because,

according to the panel, in Ruiz, the defendants moved to terminate

a consent decree; here, the Sheriff challenges the Stipulated Order

and 2019 Orders. See Anderson II, 114 F.4th at 419 n.14.

How is that a distinction with a difference? Beats me. In any

event, “we have not allowed district courts to ‘shield [their] orders

from appellate review’ by avoiding the label ‘injunction.’” Abbott,

585 U.S. at 595 (quoting Sampson v. Murray, 415 U.S. 61, 87

(1974)) (alteration in Abbott); see also Sampson, 415 U.S. at 87-88

(treating an order labeled as a TRO, which is not appealable under

§ 1292(a)(1), as a preliminary injunction, which is).

18a

Appendix A

793 F.3d at 491) (cleaned up). From that premise alone,

the panel concluded that the district court’s orders

“simply implement the consent decree without changing

the command of the injunction.” Id. at 416 (quoting In re

Deepwater Horizon, 793 F.3d at 491) (cleaned up).

Second, because § 1292(a)(1)’s exception to the finaljudgment rule is “narrow,” the panel reasoned, “a party

challenging an interlocutory order” on appeal must

also “show serious, perhaps irreparable, consequences”

arising from the order. Id. at 415 (quoting In re Deepwater

Horizon, 793 F.3d at 492) (cleaned up). Thus, the panel

concluded, even if the district court’s “observation”

(observation?) “was a modification of an injunction, or

refusal to dissolve an injunction,” the Sheriff had not met

her burden to establish “serious, perhaps irreparable,

consequences.” Id. at 416.

Third, the panel held that it was “bound” by Anderson

I under the law of the case doctrine or the rule of

orderliness. See id. at 416-17 & n.11 (citing Anderson I,

38 F.4th 472). (The panel was not sure which.) The panel

stated that Anderson I and Anderson II both “concern

the well-settled principles of post-judgment proceedings.”

Id. at 417. 5 The logic seems to be that because the

5. As best I can tell, the actual holding of Anderson I that

apparently controlled Anderson II was the workaday rule that an

appeal of a post-judgment motion such as one under Rule 60(b) is

“restricted to the questions properly raised by the postjudgment

motion” and does “not extend to revive lost opportunities to appeal

the underlying judgment.” Anderson II, 114 F.4th at 417 (quoting

15B C harles A lan Wright & A rthur R. M iller , F ederal

19a

Appendix A

Anderson I panel held that the appeal of an order denying

a changed-circumstances Rule 60(b)(5) motion for relief

from a judgment did not give it jurisdiction to review

the substance of the underlying judgment, it followed

that no post-judgment motion could ever give a future

Fifth Circuit panel jurisdiction to review the legality of

the ongoing prospective relief in this case. Further, the

panel concluded that Anderson I precluded the Sheriff’s

arguments that the 2019 Orders violated § 3626(a)(1)(C)

because Anderson I had held that the PLRA worked

no new change in the law, but that Anderson I did not

preclude the Sheriff’s new arguments about private

settlement agreements under § 3626(c)(2). Id. at 418.

Nevertheless, the panel declined to “reach those other”

issues because it lacked jurisdiction. Ibid.

For these three reasons, the panel concluded that it

“lack[ed] appellate jurisdiction over the substance of the

2019 Orders, and the PLRA is not a proper vehicle to

challenge them.” Ibid.

After concluding it lacked jurisdiction because the

district court’s injunction was not really an injunction,

the panel went on to evaluate the “procedural basis

for the district court’s denial of the Sheriff’s motion to

terminate.” Ibid. Analogizing to Anderson I’s Rule 60(b)

holding again, the panel again disclaimed jurisdiction over

P ractice & P rocedure § 3916 (2d ed. 1990); citing Bowles v.

Russell, 551 U.S. 205, 209 (2007)).

20a

Appendix A

the 2019 Orders (which no one argues are on appeal) but

concluded it could review “the procedural basis for the

district court’s denial of the Sheriff’s motion to terminate.”

Ibid.

The panel then held that the Sheriff’s motion to

terminate “fails procedurally” under PLRA § 3626(b)

because it did not show that prospective “relief is no

longer necessary to correct the existing constitutional

violations.” Id. at 420. Next, the panel mentioned that

the Stipulated Order provided that “the City, the Sheriff,

and the Compliance Director shall develop and finalize

a plan for . . . appropriate housing for prisoners with

mental health issues and medical needs,” which was

apparently “a finding of compliance with the limitations

set forth in § 3626(a).” Ibid. Plus, the district court’s

denial of the motion to terminate stated that “prospective

relief extends no further than necessary to correct the

violation of the Federal right in this case.” Ibid. (quotation

omitted). Finally, it reasoned that “nothing in Section

3626(b) supports” the argument that “Section 3626(a)(1)

The panel concluded the apparently jurisdictional

portion of its opinion by stating that “the district court

has not erred in denying the motion.” Ibid. Then the

panel further asserted hypothetical jurisdiction to

resolve the merits of an appeal that (it said) was beyond

its jurisdiction: “Even assuming arguendo that we

could reach the merits of the Sheriff’s claim,” the panel

21a

Appendix A

reasoned, “the lack of effort and time implementing Phase

III would undermine a motion for termination,” which it

thought “premature.” Ibid.

The panel was not forthcoming with an explanation

for how these maneuvers comported with Article III

limitations on its subject matter jurisdiction, which

require the court to dismiss as soon as it realizes it

lacks jurisdiction and forbid the court from exercising

hypothetical jurisdiction over the merits. See Ex parte

McCardle, 74 U.S. (7 Wall.) 506, 514 (1869); Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 101 (1998).

Neither of those bedrock legal principles troubled the

panel, however. The panel opined on the merits, but rather

than affirm the district court, it stated: “We therefore

DISMISS this appeal.” Anderson II, 114 F.4th at 421.

So much for explicating the panel’s opinion. In the

following parts, I (II) explain why the panel undoubtedly

had jurisdiction. Then I (III) show how the panel

improperly analyzed the merits under the heading of

jurisdiction. And I (IV) turn to the merits myself and

conclude that the motion to terminate prospective relief

should have been granted, as required by the PLRA.

The panel piles jurisdictional misconstruction on top

of misunderstanding on top of egregious legal mistake.

22a

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A mistake because ample precedent establishes that this

court has jurisdiction to hear the Sheriff’s appeal of the

denial of her motion to terminate. And egregious because

this court has a “virtually unflagging obligation . . . to

exercise the jurisdiction given” it. Colo. River Water

Conservation Dist. v. United States, 424 U.S. 800, 817

(1976); accord Cohens v. Virginia, 19 U.S. (6 Wheat.) 264,

404 (1821) (“It is most true that this Court will not take

jurisdiction if it should not: but it is equally true, that it

must take jurisdiction if it should.”).

I (A) show why this court had jurisdiction to review the

district court’s denial of the Sheriff’s motion to terminate

prospective relief under the PLRA. Then I (B) explain

why the panel’s arguments to the contrary were wrong.

This court has § 1292(a)(1) appellate jurisdiction over

the Sheriff’s appeal of the district court’s denial of her

motion to terminate prospective relief under the PLRA

because such denials are categorically appealable as

interlocutory orders “refusing to dissolve . . . injunctions.”

28 U.S.C. § 1292(a)(1).

Long-settled precedent in our circuit supports that

conclusion. See Ruiz, 243 F.3d at 945 (“[T]his Court

has jurisdiction over the appeal of both orders [denying

motions to terminate] under 28 U.S.C. § 1292(a)(1) as

refusals to dissolve an injunction.”); see also Brown,

929 F.3d at 254 (reversing a district court’s denial of a

motion to terminate prospective relief under the PLRA);

Guajardo, 363 F.3d at 398 (affirming a district court’s

23a

Appendix A

grant of a motion to terminate prospective relief under

the PLRA).

That makes sense. Denials of motions to terminate

prospective relief have the “practical effect” of granting

an injunction or refusing to dissolve an injunction,

Abbott, 585 U.S. at 594 (quotation omitted), because

they affirmatively authorize courts to continue issuing

prospective relief—and congressionally disfavored relief

at that. As Judge Smith’s dissent made exceedingly clear,

the “order denying the motion to terminate contains

all of the requisite features of an injunction”: It is an

in personam order directed at a party, the Sheriff; it

contemplates enforcement by means of contempt and

sanctions; and it “refuses to dissolve any part of the

consent judgment.” Anderson II, 114 F.4th at 422 (Smith,

J., dissenting); see also In re Deepwater Horizon, 793

F.3d at 491 (“A district court grants an injunction when

an action it takes is directed to a party, enforceable by

contempt, and designed to accord or protect some or all

of the substantive relief sought in the complaint in more

than a temporary fashion.” (cleaned up)).

It does not matter whether the word “injunction”

appeared in the district court’s denial of the motion to

terminate because “the label attached to an order is not

dispositive.” Abbott, 585 U.S. at 594. Thus, these denials

“should be treated as such for purposes of appellate

jurisdiction,” ibid., and Ruiz was right to so hold. Indeed,

that treatment should be—and has been—categorical, as

the Supreme Court has instructed. See Mohawk Indus.,

558 U.S. at 107.

24a

Appendix A

Put simply, denials of motions to terminate under the

PLRA fall within “a class of orders for which appellate

jurisdiction lies.” Anderson II, 114 F.4th at 422 (Smith, J.,

dissenting). The denial of the Sheriff’s motion is in that

class, so this court has appellate jurisdiction to review

it. QED.

I n st e a d , t he pa nel conduc t ed t he verb ot en

“individualized jurisdictional inquiry” rather than

focusing on “the entire category to which a claim belongs.”

Mohawk Indus., 558 U.S. at 107 (quotations omitted). The

panel carved out the Sheriff’s “particular motion from the

class of motions to which it belongs,” Anderson II, 114

F.4th at 422 (Smith, J., dissenting), by scrutinizing the

Sheriff’s motion for “particular injustices” that might be

“averted,” Mohawk Indus., 558 U.S. at 107 (cleaned up).

To accomplish this task, the panel concocted three

made-to-order reasons to dismiss the Sheriff’s appeal.

It (1) implausibly construed the district court’s denial of

the motion to terminate as a mere “implementation” of

the district court’s previous orders. It then (2) applied

the inapplicable “irreparable consequences” standard.

And finally it (3) misapplied the law of the case and rule of

orderliness doctrines. In doing all this, the panel ignored

this court’s plain holding in Ruiz.

The panel’s first maneuver was to construe the district

court’s denial of the Sheriff’s motion as an implementation

25a

Appendix A

of its prior orders rather than a modification. See

Anderson II, 114 F.4th at 416. That is, the district court’s

orders “simply implemented the consent decree without

changing the command of the injunction.” Ibid. (quoting

In re Deepwater Horizon, 793 F.3d at 491) (cleaned up).

It is difficult to imagine how this could be more

wrong.

For one, the denial of the motion to terminate is itself

a refusal to dissolve an injunction, immediately appealable

under its own name under 28 U.S.C. § 1292(a)(1). See Ruiz,

243 F.3d at 945.

Moreover, the Cooperative Endeavor Agreement

(“CEA”) modified the district court’s prior orders rather

than merely implementing them. Recall that in denying

the Sheriff’s motion, the district court also entered an

“Order Setting Conditions of Construction” for the Phrase

III jail facility. Those conditions incorporated the terms

of a previous, unsigned CEA between the City and the

Sheriff. The CEA purports to bind the Sheriff and the City

to new terms and obligations regarding the construction

of the Phase III facility. None of the CEA’s terms—which

specify precisely how the City must construct Phase III—

appeared in the district court’s prior orders.6

6. Not relevant to this appeal, but worth noting, is some of

the CEA’s highly questionable substance. The CEA requires that

“[a]ny party to this contract,” including “any subcontractors,”

“must take all necessary affirmative steps to assure that minority

businesses” and “women’s business enterprises . . . are used when

possible.” ROA.19347. “Affirmative steps must include,” among

26a

Appendix A

The CEA is not an implementation of the district

court’s prior orders: It is plainly a modification. Under

penalty of contempt and sanction, the construction

of Phase III must now—because of the court’s new

order—“proceed pursuant to the . . . terms of the CEA.”

ROA.19519. Those new injunctive obligations undoubtedly

modifed the substantive relief sought in the complaint. Cf.,

e.g., Integrity Collision Ctr. v. City of Fulshear, 837 F.3d

581, 586 (5th Cir. 2016) (holding that an order requiring

the city to include two companies on its call list for towing

impounded vehicles “provides substantive relief” and “is

therefore an injunction, appealable under Section 1292(a)

(1)”).

Put simply, prior to the district court’s order, actions

taken by the Sheriff and the City that were inconsistent

with the CEA were accorded no special status; after the

order, those actions became punishable by contempt and

sanctions. That is a modification “changing the command

of the injunction,” In re Deepwater Horizon, 793 F.3d at

491 (quotation omitted), not an implementation of it. Not

that any of this matters, because even if the district court

simply refused to change the injunction, that would be

appealable too.

others, “[a]ssuring that . . . minority businesses, and women’s

business enterprises are solicited whenever they are potential

sources.” ROA.19347-48. These provisions at a minimum offend

the maxim that “[d]istinctions between citizens solely because of

their ancestry are by their very nature odious to a free people

whose institutions are founded upon the doctrine of equality.”

Students for Fair Admissions, Inc. v. President & Fellows of

Harvard Coll., 600 U.S. 181, 208 (2023).

27a

Appendix A

The panel next conjured an inexplicable hurdle for the

Sheriff’s motion to be appealable: “a party challenging

an interlocutory order” on appeal must also “show

serious, perhaps irreparable, consequences” arising from

the order. Anderson II, 114 F.4th at 415 (quoting In re

Deepwater Horizon, 793 F.3d at 492) (cleaned up).

Again, no. The “serious, perhaps irreparable

consequences” language comes from Carson v. American

Brands, Inc., 450 U.S. 79 (1981). It helps an appellate

court evaluate jurisdiction under § 1292(a)(1) when it is not

clear whether a district court’s order “was the practical

equivalent of an order denying an injunction.” Abbott, 585

U.S. at 595 (citing Carson, 450 U.S. at 83-84). It is not

an independent bar to appealing a district court order;

indeed, it appears nowhere in the text of § 1292(a).

In any event, ample judicial precedent establishes

that this so-called “requirement” “does not apply to

orders specifically granting or denying injunctions.”

Atwood Turnkey Drilling, Inc. v. Petroleo Brasileiro,

S.A., 875 F.2d 1174, 1176 (5th Cir. 1989). Such orders “are

immediately appealable as of right; no additional finding of

immediate, irreparable injury is required.” Quarterman,

607 F.3d at 1048 (quoting Sherri A.D. v. Kirby, 975 F.2d

193, 203 (5th Cir. 1992)).

As Ruiz establishes, a denial of a motion to terminate

under § 3626(b)(2) of the PLRA is categorically a “refusal

to dissolve an injunction.” 243 F.3d at 945. No one could

28a

Appendix A

seriously contend that the district court’s denial of the

motion to terminate and its order enforcing the CEA did

not have the “practical effect” of granting an injunction

(or refusing to dissolve one). So the “serious, perhaps

irreparable consequence” test does not apply to the denial

of the Sheriff’s motion to terminate.

But even if that test did apply, it is easy to see the

serious and irreparable consequences of the district

court’s denial of the motion to terminate the prospective

relief from the 2019 Orders.

The consequences are serious. The City and Sheriff

will have to build and operate an entirely new jail facility,

per the district court’s minute specifications, under the

threat of “contempt of court” and “severe sanctions.”

ROA.19520. The Sheriff tells us that complying with this

order creates “the need to re-appropriate” upwards of

$110 million “from other municipal public works projects.”

Pet. for Reh’g En Banc at 8, Anderson v. Hutson, No.

23-30633 (5th Cir. Sept. 9, 2024). That is a “big deal.”

Anderson II, 114 F.4th at 422 n.5 (Smith, J., dissenting).

And those consequences are irreparable. What

remedy could provide the defendants relief other than

the dissolution of the injunction ordering them to build,

maintain, and operate the Phase III facility?

These consequences are nothing like those complained

of in the Deepwater Horizon case cited breathlessly by

the panel. See Anderson II, 114 F.4th at 416 (citing In re

Deepwater Horizon, 793 F.3d at 492). In that case, this

29a

Appendix A

court held that BP had not shown serious or irreparable

consequences in its challenge to a settlement agreement

where it wanted to claw back settlement funds that had

been awarded to fraudulent nonprofit organizations. See

In re Deepwater Horizon, 793 F.3d at 492. The court

reasoned that these consequences were “adequately

reparable through the multiple avenues BP ha[d] to pursue

awards obtained fraudulently” and recover monies. Ibid.

Indeed, the court noted, “an injury is irreparable” when

it “cannot be undone through monetary remedies.” Ibid.

(quoting Miss. Power & Light Co. v. United Gas Pipe

Line Co., 760 F.2d 618, 629 (5th Cir. 1985)). That is the

case here, where the injury is the ongoing prospective

relief requiring political subdivisions to construct a prison

facility in open defiance of the PLRA.

The panel’s third attempt to skirt jurisdiction also

fails. Implausibly, the panel held that it was bound by

Anderson I’s jurisdictional holding under the law of the

case doctrine or the rule of orderliness. See Anderson II,

114 F.4th at 416-17 (citing Anderson I, 38 F.4th 472).7

7. The panel seemed unsure about which doctrine to rely

on. It appeared to ground its arguments primarily in law of the

case doctrine, which the district court ruled on and the parties

briefed. See Anderson II, 114 F.4th at 416-417. But in a footnote,

the panel suggested it was also bound by the rule of orderliness.

See id. at 416 n.11. Ultimately, this confusion does not matter,

because no holding of Anderson I speaks to the issues underlying

this appeal—so neither doctrine applies.

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Appendix A

Given the amount of precedent from both the Supreme

Court and our court that the panel openly disregarded, in

addition to the amount of statutory text from Congress

that the panel openly contravened, it is difficult to take

seriously the idea that the panel decision was somehow a

jurisprudentially modest attempt to follow the law. And

in any event, neither the law of the case doctrine nor the

rule of orderliness supports, much less compels, Anderson

II’s holding that it lacked jurisdiction.

“The law of the case doctrine generally prevents

reexamination of issues of law or fact decided on appeal

either by the district court on remand or by the appellate

court itself on a subsequent appeal.” Id. at 416 (quoting

Bigford v. Taylor, 896 F.2d 972, 974 (5th Cir. 1990))

(cleaned up). And the rule of orderliness means that

“one panel of our court may not overturn another panel’s

decision, absent an intervening change in the law, such as

by a statutory amendment, or the Supreme Court, or our

en banc court.” Id. n.11 (quoting United States v. Traxler,

764 F.3d 486, 489 (5th Cir. 2014)).

But Anderson I rendered exactly zero holdings about

whether this court would have jurisdiction over future

appeals based on different motions in the case or whether

the prospective relief ordered by the district court violated

the PLRA. Anderson II involved no “reexamination

of issues of law” decided in Anderson I and finding

jurisdiction would not have “overturn[ed] another panel’s

decision,”8 especially not Anderson I.

8. Adding irony to injury, Anderson II quietly disregarded

Ruiz, 243 F.3d at 945.

31a

Appendix A

The Sheriff’s instant appeal for the denial of her

motion to terminate raised different challenges than the

City’s Rule 60(b) appeal in Anderson I. In Anderson I, the

City had moved in the district court under Rule 60(b)(5) for

relief from the 2019 Orders on a “changed circumstances”

theory. Anderson I, 38 F.4th at 478-79. Attached to that

motion was an argument that § 3626(a)(1)(C) of the PLRA

barred the district court from ordering the defendants to

build the Phase III jail facility, because that provision does

not authorize “the courts, in exercising their remedial

powers, to order the construction of prisons.” 18 U.S.C.

§ 3626(a)(1)(C). The Anderson I panel noted it lacked

jurisdiction over the 2019 Orders but held that the PLRA

claim failed under the Rule 60(b)(5) motion because there

was no change in factual conditions or law. Anderson I,

38 F.4th at 479. It certainly never purported to divest

future panels of the Fifth Circuit of jurisdiction over other

appeals in the case.

Strange, then, to invoke the law of the case doctrine

and our rule of orderliness. As the panel admits, the

Anderson I panel “declined to rule on the merits of the

City’s PLRA argument.” Anderson II, 114 F.4th at 417.

Nor does “the Sheriff make[] the same argument” now

that the City had made in Anderson I. Anderson II, 114

F.4th at 417. Although the district court and the United

States (as intervenor-plaintiff) maintained that the law

of the case doctrine precluded the Sheriff’s attempt to

“revive the City’s already-rejected argument that the

2019 Orders violated Section 3626(a)(1)(C) [of] the PLRA,”

even they (i.e., the district court and the United States)

“agreed that the law of the case doctrine d[id] not bar the

32a

Appendix A

Sheriff’s private settlement agreement argument” under

the banner of §§ 3626(c)(2) and (g)(6). Id. at 418.9

Turning baffling into bewildering, after admitting

all that, the panel declined to “reach the issue of private

settlement agreements” because it lacked jurisdiction

over the substance of the 2019 Orders. Ibid. Even if one

spots the panel that Anderson I foreclosed the Sheriff’s

§ 3626(a)(1)(C) arguments (which it did not), it is a blatant

non sequitur to conclude from that that the court lacked

jurisdiction over the non-foreclosed § 3626(c)(2) and (g)

(6) arguments.

Moreover, the Sheriff’s motion to terminate, on appeal

here, brought PLRA challenges under a completely

different procedural heading. Due in part to the district

court’s conclusion that it had not ordered the defendants to

build the Phase III jail facility, as prohibited by § 3626(a)

(1)(C) of the PLRA, but rather ordered them to abide by

their private agreement, the Sheriff brought her motion to

terminate under § 3626(c)(2) and (g)(6). Those provisions,

the Sheriff argued, forbid federal courts from enforcing

private settlement agreements to construct a prison and

limit remedies for breach to reinstatement of the case in

federal court and breach-of-settlement claims in state

court. The Sheriff did not bring this motion under Rule

60(b) for relief from a judgment. She brought it under

§ 3626(b) of the PLRA itself, which authorizes motions

for termination of prospective relief. See Anderson II,

114 F.4th at 419.

9. How, then, can the panel maintain that “the substance of

the motions are identical”? Anderson II, 114 F.4th at 418. I have

not a clue.

33a

Appendix A

That procedural difference matters. The panel cannot

ignore that difference by calling the Sheriff’s motion to

terminate one “in name only,” ibid., and acting as if it were

“attacking the validity of the [2019] orders,” id. at 416.

The Sheriff’s PLRA motion did not attack the validity of

the 2019 Orders as if it were a direct appeal. It asserted

limitations on the district court’s remedial authority to

continue maintaining the prospective relief then in place.

The Sheriff’s appeal to our court is over the denial of that

motion—itself a refusal to dissolve an injunction—not the

2019 Orders.

As Judge Smith made clear in dissent, “[a]n order

issuing prospective relief can be both (1) completely

valid and enforceable at the time it was ordered and (2)

subsequently terminable for providing relief beyond the

scope permitted by the PLRA.” Anderson II, 114 F.4th at

423 (Smith, J., dissenting) (quotation omitted). So again,

the procedural difference matters: The Sheriff’s motion

to terminate prospective relief under the PLRA is not

a rehash of the City’s Rule 60(b)(5) motion for changed

circumstances (interred by Anderson I), and it is not an

attack on the validity of the 2019 Orders when issued or

the 2013 consent decree. It is a motion to terminate the

relief currently in place.

So it is surely not the case that the Sheriff’s motion

to terminate is an “end run to effect an appeal outside

the specified time limits.” Id. at 417 (majority opinion)

(quoting Anderson I, 38 F.4th at 478). If that were true,

the Sheriff’s motion to terminate under the PLRA would

have been timely only if brought within 60 days of the

34a

Appendix A

district court’s 2019 Orders. See Fed. R. App. P. 4(a)(1)(B).

But the PLRA allows motions to terminate only one or two

years after the district court grants or denies termination

of prospective relief. See 18 U.S.C. § 3626(b)(1)(A)(i)-(iii).

On the panel’s read, then, defendants in prison litigation

could never bring motions to terminate prospective relief,

“thereby erasing PLRA motions to terminate from the

U.S. Code.” Anderson II, 114 F.4th at 424 (Smith, J.,

dissenting). Anderson I held no such thing.

III

The panel’s next set of blunders is even more confusing.

After finding that it lacked jurisdiction over the appeal of

the motion to terminate, the panel twice proceeded to the

merits anyway, but then purported to dismiss for lack of

jurisdiction rather than affirm the district court’s denial.

First, the panel concluded that the Sheriff’s motion

to terminate “fails procedurally” under § 3626(b) of the

PLRA because she did not argue that prospective “relief is

no longer necessary to correct the existing constitutional

violations.” Id. at 420. As a result of the Sheriff’s failure to

meet this supposed pleading burden, the panel dismissed

the Sheriff’s appeal of the denial of her motion, seemingly

for lack of jurisdiction (again).

Second, the panel made a failed attempt at an

advisory opinion on the merits. After two purportedly

jurisdictional holdings, the panel exercised hypothetical

jurisdiction. “Even assuming arguendo that we could

reach the merits of the Sheriff’s claim, the lack of effort

35a

Appendix A

and time implementing Phase III would undermine a

motion for termination.” Ibid. Reaching the merits,

the panel reasoned that the Phase III jail facility was

“12.82% complete and the Sheriff and City ha[d] been

slow to effectuate any stipulated remedy,” so “a motion

to terminate [was] at best premature.” Id. at 420-21

(quotation omitted). But then the panel concluded it

“lack[ed] jurisdiction to review” the motion’s denial. Id.

at 421.

These mystifying statements are wrong twice over:

They (A) sound in merits analysis, not in jurisdiction.

And (B) by proceeding to the merits after finding a lack

of jurisdiction, the panel violated fundamental dictates

of Article III.

First, the “procedural failure.” The panel opinion

was confused on its face about whether this holding was

jurisdictional or merits based. At the end of the section

discussing how the Sheriff’s motion “fails procedurally,”

the panel concluded that “the district court ha[d] not

erred in denying the motion.” Anderson II, 114 F.4th at

420. That sounds like affirmance on the merits to me.

But the decretal line ambiguously states: “We therefore

DISMISS this appeal.” Id. at 421. And other parts of the

opinion sound in jurisdictional defects as to the entire

case. See id. 420-21 (“[T]he record shows that a motion to

terminate is at best premature and we lack jurisdiction to

36a

Appendix A

review it.”); id. at 420 (“Even assuming arguendo that we

could reach the merits of the Sheriff’s claim . . . ”); id. at

412 (“We agree and DISMISS for lack of jurisdiction.”).

Despite that language, the panel’s reasoning sounds

in merits. The panel identified a burden (an improper one,

as I discuss below) to show “relief is no longer necessary

to correct the existing constitutional violations” and held

that the Sheriff failed to meet it. Id. at 410. When other

appellate courts have agreed, as the panel did, that “the

district court ha[d] not erred in denying the motion”

to terminate prospective relief, they have affirmed the

denial, not dismissed for lack of jurisdiction. For example,

when the Supreme Court upheld a court’s remedy of

mandating a lower prison population in California against

a challenge under § 3626 of the PLRA, it affirmed rather

than dismissed for lack of jurisdiction. See Brown v.

Plata, 563 U.S. 493, 545 (2011). But the panel provides

not a single reason why the Sheriff’s failure to meet a

pleading burden destroyed its appellate jurisdiction over

the denial of the motion.

Second, the supposed “prematurity” of the motion to

terminate.

The panel purported to “assum[e] arguendo” that it

could “reach the merits of the Sheriff’s claim.” Anderson

II, 114 F.4th at 420. Did it? It seemed like the panel did,

because it assessed the motion’s so-called “maturity”

under the merits heading. That would have made for an

interesting advisory opinion (given the panel had already

37a

Appendix A

dismissed for lack of jurisdiction twice over). But finding

the motion premature, the panel declined to affirm the

district court’s denial of the motion. Instead, it concluded

(again) that it lacked jurisdiction to review it, (again) for

no apparent reason and without citation to supporting

legal materials. Id. at 420-21. That is simply incoherent.

In any event, the statute literally says the opposite of

what the panel holds: “In any civil action with respect to

prison conditions in which prospective relief is ordered,

such relief shall be terminable upon the motion of any

party or intervener . . . 2 years after the date the court

granted or approved the prospective relief.” 18 U.S.C.

§ 3626(b)(1)(A)(i). The Sheriff’s 2023 motion to terminate

came more than two years after the 2019 Orders. It

was not “premature,” and block quotes from Brown v.

Plata, 563 U.S. 493 (2011), do not suggest otherwise. See

Anderson II, 114 F.4th at 420.

The panel’s chimerical holdings—part jurisdictional,

part merits—are not only malformed hybrid monsters.

See Homer, The Iliad 275 (A.T. Murray trans., 1924)

(“The raging Chimaera . . . [was] not of men, in the fore

part a lion, in the hinder a serpent, and in the midst a

goat, breathing forth in terrible wise the might of blazing

fire.”). Worse still, they also violate fundamental dictates

of Article III.

“Without jurisdiction the court cannot proceed at all

in any cause.” Ex parte McCardle, 74 U.S. (7 Wall.) 506,

38a

Appendix A

514 (1869). So once a court decides it lacks jurisdiction

over the case, “the only function remaining to the court

is that of announcing the fact and dismissing the cause.”

Ibid. In assuming jurisdiction and opining on the merits

anyway, a court engages in the repudiated practice of

“hypothetical jurisdiction,” which “produces nothing more

than a hypothetical judgment—which comes to the same

thing as an advisory opinion, disapproved by this Court

from the beginning.” Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 101 (1998) (citing Muskrat v. United

States, 219 U.S. 346, 362 (1911); Hayburn’s Case, 2 Dall.

409 (1792)). To issue such an opinion is “to act ultra vires.”

Id. at 102. Thus, as I have clarified before, a “jurisdictionless court cannot reach the merits.” Spivey v. Chitimacha

Tribe of La., 79 F.4th 444, 449 (5th Cir. 2023).

The panel violated these bedrock principles several

times over. First, the panel concluded it lacked statutory

appellate jurisdiction under § 1292(a)(1) to review the

denial of the motion to terminate. As I explained, that

was wrong; the court definitely had appellate jurisdiction.

But having decided it lacked jurisdiction, the panel should

have done nothing more than announced that fact and

dismissed, as Ex parte McCardle requires. Instead,

the panel went on to consider whether the motion “fails

procedurally” because the Sheriff did not meet a pleading

standard, and it concluded that the “district court ha[d]

not erred in denying the motion.” As discussed above, that

was a merits analysis, not a jurisdictional one. And as

discussed below, the panel placed the burden on the wrong

party anyway. So having just declared itself “jurisdictionless,” the panel should not have proceeded to the merits.

Spivey, 79 F.4th at 449.

39a

Appendix A

But even if one were to spot the panel that it lacked

jurisdiction to review the denial of the Sheriff’s motion

for two independent reasons, its holding that the motion

was premature is indefensible. It is an open and notorious

violation of the Supreme Court’s teaching in Steel Co. The

panel admitted that it was “assuming arguendo” it “could

reach the merits of the Sheriff’s claim” before ruling the

Sheriff’s motion to terminate was “premature.” That is

exactly the sort of “hypothetical jurisdiction” that Steel

Co. made clear is an “ultra vires” act. 523 U.S. at 102.

And it is no improvement to conclude, as if by magic, that

a failure on the merits yields a lack of jurisdiction. See

Anderson II, 114 F.4th at 420-21.

Despite the panel’s purported dismissal(s) for lack of

jurisdiction, the panel did reach the merits of the Sheriff’s

motion to terminate under the heading of “procedural

basis.” Anderson II, 114 F.4th at 418. Unfortunately, that

analysis was deficient top to bottom. Three of the panel’s

“patent error[s]” merit emphasis here. Id. at 424 (Smith,

J., dissenting).

First, the panel incorrectly placed the burden on the

Sheriff to argue that the prospective “relief is no longer

necessary to correct the existing constitutional violations.”

Id. at 420 (majority opinion). Because “prospective relief

. . . must be terminated on the motion of any party,”

Collier, 929 F.3d at 228, the Sheriff’s only burden is to

make her motion “2 years after the date the court granted

or approved the prospective relief,” 18 U.S.C. § 3626(b)

40a

Appendix A

(1)(A)(i). She did that. After that, the burden shifts to

the parties opposing termination to provide sufficient

evidence to support the findings required by the limitation

clause in § 3626(b)(3). See Collier, 929 F.3d at 228; see also

Guajardo, 363 F.3d at 396 (explaining that the burden of

proving the requisite § 3626(b)(3) findings “is obviously

on the party opposing termination”).

Second, the district court did not make the requisite

findings. “Prospective relief must be terminated unless

‘a court makes specific written findings regarding the

continuing necessity of [such] relief.’” Anderson II, 114

F.4th at 425 (Smith, J., dissenting) (quoting Ruiz, 243 F.3d

at 950) (alteration in Anderson II). These findings must be

“written” and “based on the record.” 18 U.S.C. § 3626(b)

(3). The court cannot “simply . . . state in conclusory fashion

that the requirements of the consent decrees satisfy” the

PLRA’s “criteria.” Anderson II, 114 F.4th at 425 (Smith,

J., dissenting) (quoting Castillo v. Cameron County, 238

F.3d 339, 354 (5th Cir. 2001)).

The magistrate judge’s report and recommendation

failed to conduct the analysis required by § 3626(b)(3)

beyond two “fleeting reference[s]” to previous findings. Id.

at 425. Even counting those references, the district court’s

analysis never “identifie[d] any specific conditions in the

[prison system] at the time termination was requested that

constituted a current and ongoing violation of a federal

right.” Id. at 426 (quotation omitted). It never mentioned

whether the Sheriff failed to comply with any of the terms

of the consent decree. Ibid. And it never showed that any

of the consent decree’s terms, “or the relief previously

41a

Appendix A

ordered by the court,” were “still needed to cure ongoing

constitutional violations.” Ibid.

Third , the PLRA requires termination of the

prospective relief ordered by the district court in its

2019 Orders and CEA order as a matter of law. See id. at

427. That is true even if the district court had made the

necessary findings required by § 3626(b)(3) of the PLRA.

Why? Section 3626(a)(1)(C) of the PLRA provides that

“[n]othing in this section shall be construed to authorize

the courts, in exercising their remedial powers, to order

the construction of prisons.” So § 3626(b)(3) cannot be

construed to stop the termination of current, ongoing

prospective relief that orders the construction of prisons.

As Judge Smith put it, “the court necessarily acts

ultra vires if it continues enforcing prospective relief

relating to the construction of the Phase III facility,”

Anderson II, 114 F.4th at 427 (Smith, J., dissenting),

because that order exceeds the district court’s “authority

to issue and enforce prospective relief,” Miller, 530 U.S.

at 347; see also Saahir v. Estelle, 47 F.3d 758, 762 (5th

Cir. 1995) (“Just as the scope of the consent decree does

not enlarge the court’s jurisdiction, the way the parties

agreed to implement the remedy contained in the consent

decree likewise cannot affect the jurisdictional bounds of

the federal courts.”).

Accordingly, the panel should have reached the merits

and reversed. The district court should have granted the

Sheriff’s motion for termination of prospective relief,

because “such relief shall be terminable upon the motion

42a

Appendix A

of any party” brought “2 years after the date the court

granted or approved the prospective relief,” 18 U.S.C.

§ 3626(b)(1)(i), unless the limitations of § 3626(b)(3) are

met. The Sheriff’s motion was procedurally valid, and the

limitations were not met. The panel instead erred coming

(in its erroneous finding of no jurisdiction) and going (in

its erroneous merits holding).

***

The panel “majority wants to build a prison,”

Anderson II, 114 F.4th at 421 (Smith, J., dissenting), in

direct contravention of the Prison Litigation Reform

Act. Along the way, the panel made a mess of our great

jurisdictional doctrines and flouted foundational Supreme

Court precedents. Regrettably, the en banc court today

grants the panel’s wish. I respectfully dissent.

43a

APPENDIX B — Appendix

OPINIONBOF THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT, FILED AUGUST 26, 2024

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 23-30633

KENT ANDERSON; STEVEN DOMINICK;

ANTHONY GIOUSTAVIA; JIMMIE JENKINS;

GREG JOURNEE; RICHARD LANFORD;

LEONARD LEWIS; EUELL SYLVESTER;

LASHAWN JONES,

Plaintiffs-Appellees,

UNITED STATES OF AMERICA,

Intervenor Plaintiff-Appellee,

SUSAN HUTSON, SHERIFF, ORLEANS PARISH,

SUCCESSOR TO MARLIN N. GUSMAN,

Defendant/Third Party Plaintiff-Appellant,

CITY OF NEW ORLEANS,

Third Party Defendant-Appellee.

44a

Appendix B

Filed August 26, 2024

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:12-CV-859

Before Smith, Wiener, and Douglas, Circuit Judges.

Dana M. Douglas, Circuit Judge:

This appeal stems from twelve years of litigation

against, inter alia, the Orleans Parish Sheriff’s Office

regarding constitutionally inadequate housing and medical

care for jail detainees at Orleans Parish Prison. In 2013,

the district court approved a consent decree proposed by

Plaintiffs, the United States, and former Sheriff Gusman.

The City and Sheriff also stipulated to developing the plan

for adequate housing and care. After years of stalemate,

a compliance director and the former Sheriff proposed a

plan to construct a mental health annex, known as Phase

III, at the existing jail. The former Sheriff was a driving

force behind that decision. But as temporary housing for

detainees became untenable, the district court ordered

the parties to proceed with their stipulations and Phase

III. No party appealed those orders. Now, there’s a new

Sheriff in town, and she has moved to terminate all

orders concerning Phase III. The district court denied

the motion. Plaintiffs class and the United States argue

chiefly that this court lacks jurisdiction to hear the appeal.

We agree and DISMISS for lack of jurisdiction.

45a

Appendix B

We previously described the facts in detail. See

Anderson v. City of New Orleans, 38 F.4th 472, 475-78

(5th Cir. 2022) (“Anderson I”). We do not repeat them

here. However, because the arguments are strikingly

similar, we begin with Anderson I. There, we considered

the City of New Orleans’s (“City”) motion for relief from

the orders on Phase III.

In 2016, after years of delay and disagreements about

implementation of the consent decree, the parties entered

a stipulated order which, at the parties’ request, the

district court entered as an order of the court (“Stipulated

Order”). As relevant here, the Stipulated Order provided

that “the City, the Sheriff, and the Compliance Director

shall develop and finalize a plan for . . . appropriate housing

for prisoners with mental health issues and medical

needs.”

A fter extensive consultation w ith the parties,

the Compliance Director submitted a Supplemental

Compliance Action Plan (“Plan”). The Plan recommended

the construction of a new treatment facility called “Phase

III” on existing Orleans Parish Sheriff’s Office property,

with eighty-nine beds to house detainees, an infirmary,

and treatment space for all detainees with certain medical

and mental-health needs. In 2017, Sheriff Gusman signed

the Plan, along with the Compliance Director. The City

indicated that the parties were “moving forward” with the

construction of Phase III and that “the project should be

completed within 24 to 40 months.”

46a

Appendix B

Two years later, in 2019, despite its earlier commitment

to the Stipulated Order, the City wanted to explore

alternatives to Phase III. The district court ordered the

City to comply with the Plan and direct the architect to

begin Phase III construction and programming “as soon as

possible” (“January 2019 Order”). Subsequently, the City

informed the district court that it was “actively working”

with Sheriff Gusman and the compliance director “to

program, design, and construct a Phase III project that

meets the requirements of the Consent Decree, and does so

in a cost-effective manner.” Accordingly, the court ordered

the City and Sheriff to “continue the programming phase

of Phase III,” to “work collaboratively to design and build

a facility that provides for the constitutional treatment of

[detainees with serious mental-health and medical needs]

without undue delay, expense[,] or waste,” and to provide

monthly progress reports to “advise the Court of the City’s

progress toward construction of Phase III” (“March 2019

Order”).1

After entry of the March 2019 Order, however, the City

unilaterally ordered the architect and project manager to

stop Phase III. The City filed a motion under Federal

Rule of Civil Procedure 60(b)(5), arguing that changed

circumstances warranted relief from the district court’s

January 2019 and March 2019 Orders (collectively “2019

Orders”). Specifically, the City argued that Section 3626(a)

1. To be clear, this appeal does not concern the consent decree

referenced by the dissent. The Sheriff ’s motion only addresses the

Stipulated Order and 2019 Orders, not the 2013 consent decree.

Thus, we consider whether we have jurisdiction over those orders

only.

47a

Appendix B

(1)(C) of the Prison Litigation Reform Act (“PLRA”)

prohibited the court from ordering the construction of a

new jail facility. The City also moved for a stay of those

orders. Following a two-week hearing, the magistrate

judge issued a report and recommendation, later adopted

by the district court, denying the City’s motions. The City

appealed.

In Anderson I, we affirmed the district court’s

decision. 2 As relevant here, we declined to rule on the

merits of the City’s PLRA argument, holding that,

because “Rule 60(b)(5) may not be used to challenge the

legal conclusions on which a prior judgment or order

rests,” the Court lacked jurisdiction over “the substance

of the January and March 2019 orders.” Anderson I, 38

F.4th at 478, 479. We explained that “Rule 60(b) simply

may not be used as an end run to effect an appeal outside

the specified time limits, otherwise those limits become

essentially meaningless.” Id. (citation omitted); see also

id. (“Rule 60(b)(5) may not be used to challenge the legal

conclusions on which a prior judgment or order rests.”

(quoting Horne v. Flores, 557 U.S. 433, 477, 129 S. Ct.

2579, 174 L. Ed. 2d 406 (2009))).

After Anderson I, Sheriff Hutson was automatically

substituted as a party under Federal Rule of Civil

2. The panel permitted Sheriff Hutson, who was inaugurated

as the new Sheriff of Orleans Parish in May 2022, to file an amicus

brief and participate in oral argument with respect to the City’s

appeal. Anderson I, 38 F.4th at 480.

48a

Appendix B

Procedure 25(d), replacing Sheriff Gusman. 3 Meanwhile,

the City entered a construction contract and began work

on Phase III. Sheriff Hutson, her counsel, and several

members of her Office’s staff were included in monthly

discussions regarding the ongoing construction of Phase

III.

Over a year after Sheriff Hutson was sworn into

office, however, she moved to “terminate all prospective

relief regarding the construction of the Phase III jail

pursuant to 18 U.S.C. § 3626(b).” The magistrate judge

recommended the denial of the Sheriff’s motion and the

entry of an order embodying the terms of the Cooperative

Endeavor Agreement (“CEA”), which was negotiated by

the parties and signed by the former Sheriff.4 In July

3. Rule 25(d) provides that “[a]n action does not abate when

a public officer who is a party in an official capacity dies, resigns,

or otherwise ceases to hold office while the action is pending. The

officer’s successor is automatically substituted as a party.”

4. To clarify, the terms of the CEA are not in dispute. Sheriff

Hutson did not object to any of its discrete provisions despite

having the opportunity to do so. Nonetheless, the dissent takes

issue with the CEA’s terms involving a federal contract clause.

Compare post at 2 n.1 (citing Students for Fair Admissions, Inc. v.

President & Fellows of Harvard Coll., 600 U.S. 181, 208, 143 S. Ct.

2141, 216 L. Ed. 2d 857 (2023)) with 2 C.F.R. § 200.321 (“The nonfederal entity must take all necessary affirmative steps to assure

that minority businesses, women’s business enterprises, and labor

surplus area firms are used when possible.”). Setting aside the

red herring, the record reflects that the order “embodying the

terms of the CEA would not be an order ‘authorizing’ a project.

Rather, it would ‘set out the various conditions under which the

project will be conducted and spell out the City’s and the Sheriff ’s

respective obligations during the project.’” After all, that is the

natural result of parties negotiating and signing an agreement.

49a

Appendix B

2023, the district court adopted that recommendation with

amendments unrelated to this appeal. In so doing, the

district court made findings pursuant to Section 3626(a)(1)

(A), (B) of the PLRA for at least the third time in this case.

The Sheriff appealed and twice moved to stay “all

orders regarding the construction of the Phase III jail.”

A panel of this court denied those motions. The Phase III

facility remains “in progress at 12.82% complete.”

II.

This case is déjà vu all over again. 5 Similar to the City,

Sheriff Hutson argues—under a different procedural

mechanism—that the PLRA bars the district court from

ordering the construction of Phase III. Anderson I, 38

F.4th at 478. As always, we have jurisdiction to determine

our own jurisdiction. Brown v. Pac. Life Ins. Co., 462 F.3d

384, 390 (5th Cir. 2006).

The Sheriff suggests two primary bases6 for appellate

jurisdiction over the 2019 Orders.7 First, the Sheriff

5. Springboards to Educ., Inc. v. Pharr-San Juan-Alamo

Indep. Sch. Dist., 33 F.4th 747, 748 (5th Cir. 2022) (footnote citation

omitted).

6. The Sheriff asserts a third basis for appellate jurisdiction:

federal question jurisdiction pursuant to 28 U.S.C. § 1331. As

Plaintiffs explain, Section 1331 speaks only to the “original

jurisdiction” of the “district courts,” not to our appellate authority.

See 28 U.S.C. § 1331.

7. Although the Sheriff has not specified the exact orders

on appeal, we assume the Sheriff challenges the 2019 Orders. To

50a

Appendix B

contends that we have jurisdiction over a court’s denial of

a motion to terminate pursuant to the PLRA. Second, the

Sheriff argues that we have jurisdiction over the refusal

to modify a consent decree. See 28 U.S.C. § 1292(a)(1).

In opposition, Plaintiffs and the United States argue

that we have jurisdiction over the denial of a motion to

terminate, but we lack jurisdiction over the substance

of the 2019 Orders and Stipulated Order. Moreover,

they contend that the Sheriff’s motion is not the proper

procedural mechanism for the relief sought. 8

We now turn to jurisdiction and the function and scope

of the Sheriff’s motion. As before, “we have jurisdiction to

review the denial of the . . . motion, but not the underlying

. . . orders.” Anderson I, 38 F.4th at 477-78; see Ruiz v.

United States, 243 F.3d 941, 945 (5th Cir. 2001).

the extent the Sheriff challenges additional orders, such as the

Stipulated Order, our analysis encompasses all.

8. Separately, Plaintiffs note that the Sheriff ’s and City’s

reliance on 28 U.S.C. § 1292(a)(1) undermines the Sheriff ’s

purported basis for termination: that the district court’s

enforcement of a “private settlement agreement” to build Phase

III violates the PLRA. To invoke § 1292(a)(1), however, there must

be a “consent decree” or “injunction” that the Sheriff ’s motion

sought to “modify.” § 1292(a)(1). Here, the Sheriff disavows the

existence of any consent decree regarding the Phase III facility.

Thus, the Sheriff ’s § 1292(a)(1) argument is a nonstarter.

51a

Appendix B

Section 1292(a)(1) confers jurisdiction over appeals

from “[i]nterlocutory orders . . . granting, continuing,

modifying, refusing or dissolving injunctions, or refusing

to dissolve or modify injunctions.” 28 U.S.C. § 1292(a)(1).

“Just as it has done with the collateral order doctrine, the

Court has ‘approached this statute somewhat gingerly lest

a floodgate be opened’ that permits immediate appeal over

too many nonfinal orders.” In re Deepwater Horizon, 793

F.3d 479, 491 (5th Cir. 2015) (quoting Switz. Cheese Ass’n,

Inc. v. E. Home’s Mkt., Inc., 385 U.S. 23, 24-25, 87 S. Ct.

193, 17 L. Ed. 2d 23 (1966)). “A district court ‘grants’ an

injunction when an action it takes is ‘directed to a party,

enforceable by contempt, and designed to accord or protect

some or all of the substantive relief sought in the complaint

in more than a temporary fashion.’” Id. at 491 (quoting

Police Ass’n of New Orleans Through Cannatella v. City of

New Orleans, 100 F.3d 1159, 1166 (5th Cir. 1996)). “On the

other hand, a court has not modified an injunction when it

‘simply implements an injunction according to its terms or

designates procedures for enforcement without changing

the command of the injunction.’” Id. “Interpretation,

then, is not modification. . . . [T]aking a practical view

of modification, [we] ‘look [] beyond the terms used by

the parties and the district court to the substance of the

action.’” Id. (quoting In re Seabulk Offshore Ltd., 158 F.3d

897, 899 (5th Cir. 1998)).

“In addition to showing that an order granted,

modified, refused, or dissolved an injunction, a party

challenging an interlocutory order must show ‘serious,

52a

Appendix B

perhaps irreparable, consequences,’ because the § 1292(a)

(1) ‘exception is a narrow one.’” In re Deepwater Horizon,

793 F.3d at 492 (quoting Gardner v. Westinghouse Broad.

Co., 437 U.S. 478, 480, 98 S. Ct. 2451, 57 L. Ed. 2d 364

(1978)).

For example, in In re Deepwater Horizon, we

dismissed the appeal for lack of jurisdiction regarding

an order interpreting part of a massive class-action

settlement.9 Id. at 492. There, defendants argued that an

order constituted an injunction or, alternatively, the court’s

subsequent denial of the motion for reconsideration was a

modification of the injunction. Id. We assumed arguendo

that the order was an injunction or modification but

explained that defendants failed to “‘show serious, perhaps

irreparable, consequence[s].’” Id. (quoting Gardner, 437

U.S. at 480). Thus, we concluded that defendants could not

invoke jurisdiction under Section 1292(a)(1). Id. at 492.

Like In re Deepwater Hor izon, the Sher iff ’s

jurisdictional argument fails under Section 1292(a)(1). As

the district court observed, “the Sheriff has styled her

motion as one to ‘terminate’ rather than vacate or reverse

the Phase III Orders. That turn of phrase does not change

the fact that she is directly attacking the validity of the

orders as being prohibited under the PLRA.” The Sheriff

has not shown that the district court refused to modify or

dissolve an injunction. Rather, the court’s orders “‘simply

implement[]’” the consent decree “‘without changing the

9. See 15B Charles A. Wright & A rthur R. Miller, Fed.

Prac. & Proc. Juris. § 3916 (2d ed.) (hereinafter “Wright &

Miller”).

53a

Appendix B

command of the injunction.’” In re Deepwater Horizon,

793 F.3d at 491 (quoting Switz. Cheese Ass’n Inc., 385

U.S. at 24-25). Accordingly, the court’s orders were an

interpretation of the stipulated relief. Id. To suggest

otherwise would open a “floodgate” of repetitive and

untimely appeals. Id.

To be clear, this does not mean that the parties are

prohibited from filing a proper motion to terminate under

the PLRA. But, as discussed in Part B, the Sheriff has not

done so. Even assuming arguendo that the district court’s

observation was a modification of an injunction, or refusal

to dissolve an injunction, the Sheriff has not pointed to

any ‘“serious, perhaps irreparable, consequence[s].’” In re

Deepwater Horizon, 793 F.3d at 492 (quoting Gardner, 437

U.S. at 480).10 However, there are well-documented risks

of inadequate housing and care for detainees at Orleans

Parish Prison. Anderson I, 38 F.4th at 475 (explaining that

the jail was still “not adequate for detainees with mentalhealth needs or who were suicidal”). Indeed, despite the

10. On this, the dissent misconstrues this opinion. Post at

3 n.5. First, the issue is that the Sheriff has not satisfied any

evidentiary burden. Second, it is false to suggest that the district

court ordered the construction of a prison. Anyone familiar

with this case can recall the factual and procedural history that

refutes any assertion that courts have ordered the construction

of a prison. Third, and to reiterate, the Sheriff does not challenge

the 2013 consent decree. Instead, she challenges the judicially

enforceable orders that came years later. That argument was

foreclosed in Anderson I. Finally, the dissent raises arguments

concerning “irreparable consequences” that the Sheriff herself

has not raised in the district court or on appeal. Thus, we do not

entertain them here.

54a

Appendix B

consent decree requiring the Sheriff’s Office to implement

systemic and durable reforms, the independent monitor

has reported that the jail “has regressed slightly” and

“the same deficiencies are likely to continue to be noted

time and time again.” Hence, the 2019 Orders and CEA

followed.

In addition, we are bound by Anderson I. The law

of the case doctrine “generally prevents reexamination

of issues of law or fact decided on appeal ‘either by the

district court on remand or by the appellate court itself

on a subsequent appeal.’”11 Bigford v. Taylor, 896 F.2d

972, 974 (5th Cir. 1990) (quoting Todd Shipyards Corp.

v. Auto Transp., S.A., 763 F.2d 745, 750 (5th Cir. 1985);

see Arizona v. California, 460 U.S. 605, 618, 103 S. Ct.

1382, 75 L. Ed. 2d 318 (1983)). However, “the issues need

not have been explicitly decided; the doctrine also applies

to those issues decided by ‘necessary implication.’” In

re AKD Invs., 79 F.4th 487, 491 (5th Cir. 2023) (quoting

Alpha/Omega Ins. Servs. v. Prudential Ins. Co. of Am.,

272 F.3d 276, 279 (5th Cir. 2001)).

11. In addition to the law of the case doctrine, we are bound

by the rule of orderliness: “It is a well-settled Fifth Circuit rule of

orderliness that one panel of our court may not overturn another

panel’s decision, absent an intervening change in the law, such as

by a statutory amendment, or the Supreme Court, or our en banc

court.” United States v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014)

(internal citations and quotation marks omitted). Thus, we cannot

ignore the well-settled principles that Anderson I applied to the

facts of this exact case.

55a

Appendix B

In Anderson I, the City moved to “suspend all orders

regarding the programming, design, and construction of a

new Phase III jail facility” because, inter alia, the PLRA

purportedly prohibits the construction of Phase III. The

magistrate judge conducted a two-week hearing on that

motion and recommended that the court deny the City’s

motion. It did so. Then, we affirmed the district court’s

decision. Although we declined to rule on the merits of

the City’s PLRA argument, we nonetheless concluded

that the City’s post-judgment motion under “Rule 60(b)

(5) may not be used to challenge the legal conclusions on

which a prior judgment or order rests,” and we lacked

jurisdiction over “the substance of the January and March

2019 orders.” Anderson I, 38 F.4th at 478, 479. “Rule 60(b)

simply may not be used as an end run to effect an appeal

outside the specified time limits, otherwise those limits

become essentially meaningless.” Id. (citation omitted).

Now, the Sheriff makes the same argument but with

different procedural mechanisms: motions to terminate

and stay all orders regarding the construction of Phase

III. We have already denied the motions to stay12 Phase

III, and we now address the motion to terminate.

Again, “we have jurisdiction to review the denial of the

. . . motion, but not the underlying . . . orders.” Anderson

I, 38 F.4th at 477-78. The Sheriff’s appeal is “restricted

to the questions properly raised by the post-judgment

motion” and it does “not extend to revive lost opportunities

12. See Men v. Holder, 556 U.S. 418, 434, 129 S. Ct. 1749, 173

L. Ed. 2d 550 (2009).

56a

Appendix B

to appeal the underlying judgment.” 15B Wright & Miller

§ 3916 (quoting Anderson I, 38 F.4th at 478); see Bowles v.

Russell, 551 U.S. 205, 209, 127 S. Ct. 2360, 168 L. Ed. 2d

96 (2007) (“This Court has long held that the taking of

an appeal within the prescribed time is mandatory and

jurisdictional” (internal citations and quotation marks

omitted)). Just as “a Rule 60(b) motion may not be used

as a substitute for a timely appeal from the judgment or

order from which the motion seeks relief,” a purported

motion to terminate under the PLRA cannot “be used as

an end run to effect an appeal outside the specified time

limits.” Id. at 478 (internal quotation and citation omitted).

The decision in Anderson I applies here “by ‘necessary

implication’” as both cases concern the well-settled

principles of post-judgment proceedings. In re AKD Invs.,

79 F.4th at 491 (quoting Alpha/Omega Ins. Servs., 272

F.3d at 279); see 15B Wright & Miller § 3916. Contrary

to the Sheriff’s suggestion, the law of the case does not

change based on the name of the motion “for that would

exalt nomenclature over substance.” Browder v. Dir.,

Dep’t of Corr. of Illinois, 434 U.S. 257, 272, 98 S. Ct. 556,

54 L. Ed. 2d 521 (1978) (Blackmun, J., concurring). This

is particularly true when the substance of the motions are

identical. The issue here and in Anderson I was whether

the PLRA prohibits the 2019 Orders and Stipulated Order.

Like Anderson I, “the timely notice of appeal in a civil case

is a jurisdictional requirement” and we cannot create an

exception for the Sheriff’s motion as that time has long

passed. Funk v. Stryker Corp., 631 F.3d 777, 781 (5th Cir.

2011). Accordingly, we lack appellate jurisdiction to review

the substance of the 2019 Orders and Stipulated Order.13

13. The dissent concedes that the Sheriff ’s motion seeks

relief from the 2019 Orders but nonetheless suggests that the

57a

Appendix B

The dissent argues that the law of the case doctrine

does not apply. In so doing, it mischaracterizes the position

of the United States and the orders of the district court.

Post at 4. In reviewing the court’s denial of the Sheriff’s

motion, we find that the Sheriff made the same postjudgment arguments as the City did in Anderson I. The

Sheriff later clarified that she is relying on a different

subsection of the PLRA. Accordingly, what the United

States and district court correctly explained is: “to the

extent that the Sheriff was attempting to revive the

City’s already-rejected argument that the 2019 Orders

violated Section 3626(a)(1)(C) the PLRA, such argument

was precluded under the law of the case doctrine.” Then,

the district court and the United States agreed that the

law of the case doctrine does not bar the Sheriff’s private

settlement agreement argument regarding Section 3626(c)

(2), (g)(6). The United States contends that the Sheriff’s

argument “nonetheless fails for other reasons.” Here,

we do not reach those other reasons because we lack

jurisdiction. Indeed, as the United States principally

argued, this court lacks appellate jurisdiction over the

substance of the 2019 Orders, and the PLRA is not a

proper vehicle to challenge them. Thus, because we lack

jurisdiction, we do not reach the issue of private settlement

agreements.

post-judgment rule addressed in Anderson I has no impact on

this appeal. Post at 7. But “[o]bviously, this well-established rule

is critical to this appeal.” Anderson I, 38 F.4th at 478. The fact

that the Sheriff attempts to circumvent procedural history and

rules under the guise of a PLRA motion does not mean we can

ignore Anderson I.

58a

Appendix B

Next, we address the procedural basis for the district

court’s denial of the Sheriff’s motion to terminate. Again,

in Anderson I we concluded that we may review the

district court’s denial of the City’s motion, but it would be

improper to review the 2019 Orders and Stipulated Order.

“Interpreting effective unreviewability to permit appeal

in this case would signify that each time [the Sheriff or

City] could show a handful of claims arguably impacted

by the district court’s interpretation of the [Stipulated]

Agreement, it could immediately appeal to this court.

The limited benefits of such unrestricted access to the

appellate court are outweighed by the attendant systemic

disruption and institutional cost.” See In re Deepwater

Horizon, 793 F.3d at 489 (citing Mohawk Indus., Inc. v.

Carpenter, 558 U.S. 100, 112, 130 S. Ct. 599, 175 L. Ed. 2d

458 (2009); Digital Equip. Corp. v. Desktop Direct, Inc.,

511 U.S. 863, 884, 114 S. Ct. 1992, 128 L. Ed. 2d 842 (1994)).

As a procedural matter, Plaintiffs and the United

States argue that the Sheriff has not presented a proper

basis for a motion to terminate under Section 3626(b) of

the PLRA. The district court agreed. The Sheriff argues

that the 2019 Orders and Stipulated Order impermissibly

enforce a private settlement agreement under the PLRA.

On the other hand, the City, which already made similar

arguments in Anderson I, states that “its legal challenges

to the Phase III facility have come to a definitive end . . .

and the City does not now espouse a position contrary to

the prior rulings of the magistrate, district or appellate

courts in this appeal.”

59a

Appendix B

To begin, simply naming a document “motion to

terminate” does not automatically establish a basis for

jurisdiction or relief. See, e.g., Moody Nat’l Bank of

Galveston v. GE Life & Annuity Assurance Co., 383 F.3d

249, 251 (5th Cir. 2004) (“As an initial matter, it is important

to make clear that the fact that GE labeled its motion as

a Rule 59(e) motion to alter or amend is immaterial; a

motion’s substance, and not its form, controls.”). Moreover,

it is true that a district court’s denial of a proper motion

to terminate relief under Section 3626(b)(1)(A) is subject

to appeal. But, as Plaintiffs argue, the Sheriff’s filing is

a “motion to terminate” in name only.14

Section 3626(b) establishes the parameters in a prison

conditions civil action for “termination of relief.” “Although

the PLRA entitles [a party] to terminate remedial orders

such as these after two years unless the district court finds

that the relief ‘remains necessary to correct a current and

ongoing violation of the Federal right,’ § 3626(b)(3), [the

Sheriff] has not attempted to obtain relief on this basis.”

Brown v. Plata, 563 U.S. 493, 515, 131 S. Ct. 1910, 179

L. Ed. 2d 969 (2011).

14. The dissent relies on Ruiz v. United States to argue

that the Sheriff ’s motion is a proper vehicle for challenging

the 2019 Orders and Stipulated Order. Post at 7. In Ruiz, the

defendants moved to terminate a consent decree and this court had

jurisdiction pursuant to § 1292(a)(1). Ruiz, 243 F.3d at 945. Here,

it bears repeating that the Sheriff has not moved to terminate the

consent decree. Rather, she challenges the Stipulated Order and

2019 Orders. Thus, Ruiz does not support the dissent’s contention

that we may review those orders.

60a

Appendix B

The Sheriff claims instead that the March 2019 Order

and “associated orders” violate the PLRA. See Moody

Nat’l Bank of Galveston, 383 F.3d at 251.15

The Supreme Court has made clear that Section

3626(b) acts as a mechanism for termination of prospective

relief when such relief is no longer necessary to correct

a violation of a federal right. Id. Our court has done the

same. For example, in Castillo v. Cameron County, 238

F.3d 339 (5th Cir. 2001), we explained that, in deciding

whether to grant a motion to terminate, a district

court should consider whether a “current and ongoing

violation” exists, based on “conditions in the jail at the

time termination is sought . . . to determine if there is

a violation of a federal right.” See also Ruiz, 243 F.3d

at 950-951; Brown v. Collier, 929 F.3d 218, 253 (5th Cir.

15. In addition, the Sheriff argues that she cannot be bound

by her predecessor’s prior decisions as to the Stipulated Order

and CEA. Specifically, she contends that even if the district court’s

orders are enforceable, they are not enforceable against her

because she was not a party to the stipulated agreement. Because

that argument is a procedural matter, we will briefly address it.

In actions against defendants in their official capacity, individual

office holders may come and go, but the defendant never changes

because the office, not the person occupying it, is the party. See

Fed. R. Civ. P. 25(d), 1961 Advisory Committee Note; see also,

e.g., Deauville Assoc, v. Murrell, 180 F.2d 275, 277 (5th Cir. 1950)

(explaining that even if a party has changed, such as in the case

of a transfer or assignment of rights under Federal Rule of Civil

Procedure 25(c), that “would not justify our disturbing all prior

orders and decrees entered in this controversy and unfavorable

to” the current party); In re Bernal, 207 F.3d 595, 599 (9th Cir.

2000). Therefore, the Sheriff fails to furnish any legal support for

this argument, and it is foreclosed.

61a

Appendix B

2019) (affirming district court’s termination of a consent

decree that was no longer “necessary to correct current

and ongoing violations” of federal law); Guajardo v. Texas

Dep’t of Crim. Just, 363 F.3d 392, 398 (5th Cir. 2004)

(per curiam) (same). Our sister circuits agree. See, e.g.,

Porter v. Clarke, 923 F.3d 348, 367 (4th Cir. 2019), as

amended (May 6, 2019) (“Congress’s use of ‘current and

ongoing’ in Section 3626(b)(3) demonstrates that it knew

how to “clear[ly] command” that courts may not use their

equitable authority in the case of a violation that is not

‘current and ongoing.’”).

In this case, Sheriff Hutson has not argued that

the relief is no longer necessary to correct the existing

constitutional violations. Rather, she alleges that Sectio

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