Petition for Writ of Certiorari — M. D., By Next Friend, Sarah R. Stukenberg, et al., Petitioners v. Greg Abbott, Governor of Texas, et al.
Supreme Court briefMay 12, 2025
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No. 24In the
Supreme Court of the United States
M. D., BY NEXT FRIEND
SARAH R. STUKENBERG, et al.,
Petitioners,
v.
GREG ABBOTT, IN HIS OFFICIAL CAPACITY AS
GOVERNOR OF THE STATE OF TEXAS, et al.,
Respondents.
On Petition for a Writ of Certiorari to the
United States Court of A ppeals for the Fifth Circuit
PETITION FOR A WRIT OF CERTIORARI
AND APPENDIX VOLUME I (Pages 1a-374a)
Samantha Bartosz
Stephen Dixon
Children’s Rights
88 Pine Street, Suite 800
New York, New York 10005
Marcia Robinson Lowry
David Baloche
Laura Welikson
A Better Childhood, Inc.
355 Lexington Avenue,
16th Floor
New York, New York 10017
379648
R. Paul Yetter
Counsel of Record
Christian J. Ward
A ndrew T. Ingram
Yetter Coleman LLP
811 Main Street, Suite 4100
Houston, Texas 77002
(713) 632-8000
pyetter@yettercoleman.com
Attorneys for Petitioners
A
(800) 274-3321 • (800) 359-6859
i
QUESTIONS PRESENTED
1. Whether civil contempt sanctions imposed
through proceedings that undisputedly
comported with civil due process may be
affirmed even if the contempt order
seemingly also imposed punitive sanctions.
2. Whether
the
defense
of
“substantial
compliance”
involves
more
than
a
mathematical inquiry and instead requires
alleged civil contemnors to show they took
“all reasonable steps” to comply with the
clear intent of pertinent court orders.
3. Whether a court of appeals should consider
whether opinions expressed by a district
judge were properly formed during the course
of litigation and should give significant
weight to the resulting waste and duplication
of judicial effort before taking the
extraordinary step of removing a diligent
district judge from a complex case.
ii
PARTIES TO THE PROCEEDINGS
M. D., by next friend Sarah R. Stukenberg; D. I.,
by next friend Nancy G. Pofahl; Z. H., by next friend
Carla B. Morrison; S. A., by next friend Javier Solis;
A. M., by next friend Jennifer Talley; J. S., by next
friend Anna J. Ricker; K. E., as next friend John W.
Cliff, Jr.; M. R., as next friend Bobbie M. Young; J.
R., as next friend Bobbie M. Young; H. V., by next
friend Anna J. Ricker; P. O., as next friend Anna J.
Ricker; L. H., as next friend Estela C. Vasquez; C.
H., by next friend Estela C. Vasquez; S. R., as next
friend Bobbie M. Young; S. S., as next friend Estela
C. Vasquez; A. R., as next friend Tom McKenzie,
individually and on behalf of all others similarly
situated are plaintiffs in the district court, the
appellees in the court of appeals, and the petitioners
here.
Greg Abbott, in his official capacity as Governor
of the State of Texas; Cecile Erwin Young, in her
official capacity as Executive Commissioner of the
Health and Human Services Commission of the
State of Texas; Stephanie Muth, in her official
capacity as Commissioner of Texas Department of
Family and Protective Services are defendants in
the district court, the appellants in the court of
appeals, and the respondents here.
iii
RELATED PROCEEDINGS
M.D. v. Abbott, No. 2:11-CV-84, U.S. District
Court for the Southern District of Texas, Corpus
Christi Division, judgment entered January 19, 2018.
M.D. ex rel. Stukenberg v. Perry, No. 11-40789,
U.S. Court of Appeals for the Fifth Circuit, judgment
entered March 23, 2012.
M.D. v. Perry, No. 11-90028, U.S. Court of
Appeals for the Fifth Circuit, order entered July 19,
2011.
M.D. ex rel. Stukenberg v. Perry, No. 13-90045,
U.S. Court of Appeals for the Fifth Circuit,
unpublished opinion order entered November 19,
2013.
M.D. v. Abbott, No. 16-40023, U.S. Court of
Appeals for the Fifth Circuit, order entered April 5,
2016.
In re Abbott, No. 16-40482, U.S. Court of
Appeals for the Fifth Circuit, opinion order entered
July 7, 2016.
M.D. by Stukenberg v. Abbott, No. 18-40057, U.S.
Court of Appeals for the Fifth Circuit, judgment
entered July 8, 2019.
M.D. by Stukenberg v. Abbott, No. 19-41015, U.S.
Court of Appeals for the Fifth Circuit, opinion and
judgment entered October 16, 2020.
iv
M.D. by Stukenberg v. Abbott, No. 24-40248, U.S.
Court of Appeals for the Fifth Circuit, opinion and
judgment entered October 11, 2024, rehearing en
banc denied February 11, 2025.
v
TABLE OF CONTENTS
Questions Presented ................................................... i
Parties to the Proceedings ......................................... ii
Related Proceedings .................................................. iii
Table of Authorities ................................................. vii
Petition for Writ of Certiorari ................................... 1
Opinions Below .......................................................... 1
Jurisdiction ................................................................ 1
Constitutional Provision and Statute
Involved................................................................. 1
Statement of the Case ............................................... 3
Reasons for Granting the Petition .......................... 15
I. The Court Should Ensure Uniformity in
How Courts Enforce Injunctions Through
Civil Contempt and Assess “Substantial
Compliance.” ....................................................... 16
A. The Court Should Provide Guidance
for Distinguishing Civil from Criminal
Contempt. ...................................................... 18
B. The Court Should Clarify That Civil
and Criminal Portions of “Mixed”
Contempt Orders Are Separable. ................. 24
C. The Court Should Define “Substantial
Compliance,” Which Is Not Just a
Math Formula. .............................................. 28
vi
II. The Court Should Ensure Uniformity
in How Circuits Handle
Reassignment, Which Should Remain
Rare and Exceptional. ................................... 34
A. Most Circuits Consider Waste and
Duplication; Some Do Not. ...................... 35
B. The Court Should Confirm That
Liteky Governs Impartiality
Analysis for Reassignment. ..................... 40
Conclusion........................................................... 42
Appendix to the Petition
Opinion of the United States Court of
Appeals for the Fifth Circuit (Oct.
11, 2024) ....................................................... App.1a
Order of the United States District
Court for the Southern District of
Texas (Apr. 15, 2024) ............................... App.48a
Order of the United States Court of
Appeals for the Fifth Circuit
Denying Petition for Rehearing En
Banc and Dissenting Opinion of
Judge Stephen A. Higginson (Feb.
11, 2025) ................................................... App.796a
vii
TABLE OF AUTHORITIES
Page(s)
CASES
Aldape v. Lambert,
34 F.3d 619 (8th Cir. 1994) ................................ 30
Bd. of Comm’rs of Leavenworth Cnty. v.
Sellew,
99 U.S. 624 (1878) .............................................. 30
Bd. of Ed. v. York,
429 F.2d 66 (10th Cir. 1970) .............................. 30
Candelario Del Moral v. UBS Fin.
Servs. Inc. of P.R.,
699 F.3d 93 (1st Cir. 2012) ........................... 36, 40
City of Cleburne, Tex. v. Cleburne
Living Ctr.,
473 U.S. 432 (1985) ............................................ 31
Cobell v. Kempthorne,
455 F.3d 317 (D.C. Cir. 2006)................. 39, 40, 41
Coleman v. Newsom,
131 F.4th 948 (9th Cir. 2025) ........... 31, 32, 33, 34
De Simone v. VSL Pharms., Inc.,
36 F.4th 518 (4th Cir. 2022) ............................... 32
Disability Rights Mont., Inc. v. Batista,
930 F.3d 1090 (9th Cir. 2019) ............................ 36
viii
Donovan v. Mazzola,
761 F.2d 1411 (9th Cir. 1985) ............................ 30
F.J. Hanshaw Enters., Inc. v. Emerald
River Dev., Inc.,
244 F.3d 1128 (9th Cir. 2001) ............................ 27
F.T.C. v. Kuykendall,
371 F.3d 745 (10th Cir. 2004) ................ 23, 29, 30
F.T.C. v. Lane Labs-USA, Inc.,
624 F.3d 575 (3d Cir. 2010) ................................ 32
F.T.C. v. Trudeau,
579 F.3d 754 (7th Cir. 2009) .............................. 22
FDIC v. LeGrand,
43 F.3d 163 (5th Cir. 1995) .......................... 24, 26
Fortin v. Comm’r of Dep’t of Mass. Pub.
Welfare,
692 F.2d 790 (1st Cir. 1982) ............................... 31
FTC v. Nat’l Urological Grp., Inc.,
786 F. App’x 947 (11th Cir. 2019) ...................... 30
Gascho v. Glob. Fitness Holdings, LLC,
875 F.3d 795 (6th Cir. 2017) .............................. 30
Glover v. Johnson,
934 F.2d 703 (6th Cir. 1991) .............................. 33
Gompers v. Bucks Stove & Range Co.,
221 U.S. 418 (1911) ............................................ 18
ix
Haines v. Ligget Grp., Inc.,
975 F.2d 81 (3d Cir. 1992) ............................ 36, 37
Hutto v. Finney,
437 U.S. 678 (1978) ...................................... 28, 37
In re Abbott,
667 F. App’x 473 (5th Cir. 2016) .......................... 6
In re DaimlerChrysler Corp.,
294 F.3d 697 (5th Cir. 2002) .............................. 37
In re Kellogg Brown & Root, Inc.,
796 F.3d 137 (D.C. Cir. 2015)............................. 37
In re Kensington Int’l Ltd.,
368 F.3d 289 (3d Cir. 2004) ................................ 37
In re Merchants’ Stock & Grain Co.,
223 U.S. 639 (1912) ............................................ 26
In re Sealed Case,
77 F.4th 815 (D.C. Cir. 2023), cert.
denied sub nom. X Corp. v. United
States, 145 S. Ct. 159 (2024) .............................. 32
In re Stewart,
571 F.2d 958 (5th Cir. 1978) .............................. 27
Int’l Union, United Mine Workers of
Am. v. Bagwell,
512 U.S. 821 (1994) .........12, 19, 20, 21, 22, 23, 27
Johnson v. Sawyer,
120 F.3d 1307 (5th Cir. 1997) ................ 13, 37, 39
x
Joseph A. by Wolfe v. N.M. Dep’t of
Human Servs.,
69 F.3d 1081 (10th Cir. 1995) ............................ 31
Lamar Fin. Corp. v. Adams,
918 F.2d 564 (5th Cir. 1990) .............................. 25
Lamb v. Cramer,
285 U.S. 217 (1932) ............................................ 21
Lewis v. Casey,
518 U.S. 343 (1996) .............................................. 6
Liteky v. United States,
510 U.S. 540 (1994) .....................13, 34, 40, 41, 42
M. D. by Stukenberg v. Abbott,
907 F.3d 237 (5th Cir. 2018)
(Stukenberg I) ..................5, 6, 7, 10, 15, 28, 39, 41
M.D. by Stukenberg v. Abbott,
119 F.4th 373 (5th Cir. 2024) ............................... 1
M.D. ex rel. Stukenberg v. Abbott,
509 F.Supp.3d 683 (S.D. Tex. 2020)..................... 8
M.D. ex rel. Stukenberg v. Abbott,
929 F.3d 272 (5th Cir. 2019)
(Stukenberg II) .......................................... 7, 15, 41
M.D. ex rel. Stukenberg v. Abbott,
977 F.3d 479 (5th Cir. 2020)
(Stukenberg III) .......................................... 7, 8, 42
M.D. v. Abbott,
132 F.4th 770 (5th Cir. 2025) ............................... 1
xi
M.D. v. Abbott,
152 F.Supp.3d 684 (S.D. Tex. 2015)..................... 6
M.D. v. Abbott,
418 F.Supp.3d 169 (S.D. Tex. 2019)................... 42
M.D. v. Perry,
294 F.R.D. 7 (S.D. Tex. 2013) ............................... 6
McComb v. Jacksonville Paper Co.,
336 U.S. 187 (1949) ...................................... 16, 17
N.Y. State Nat’l Org. for Women v.
Terry,
159 F.3d 86 (2d Cir. 1998) .................................. 27
Nat’l Org. for Women v. Operation
Rescue,
37 F.3d 646 (D.C. Cir. 1994)............................... 27
Nye v. United States,
313 U.S. 33 (1941) .................................. 25, 26, 27
Penfield Co. of Cal. v. Sec. & Exch.
Comm’n,
330 U.S. 585 (1947) ................................ 21, 25, 26
Phone Directories Co. v. Clark,
209 F. App’x 808 (10th Cir. 2006) ...................... 32
Potter v. D.C.,
126 F.4th 720 (D.C. Cir. 2025) ..................... 17, 28
Revitalizing Auto Cmtys. Env’t
Response Tr. v. Nat’l Grid USA,
92 F.4th 415 (2d Cir. 2024) ................................ 36
xii
Rouser v. White,
825 F.3d 1076 (9th Cir. 2016) ............................ 31
Shillitani v. United States,
384 U.S. 364 (1966) .......................... 16, 18, 21, 26
Sierra Club v. Van Antwerp,
526 F.3d 1353 (11th Cir. 2008) .......................... 38
Sovereign Mil. Hospitaller Ord. of Saint
John of Jerusalem of Rhodes & of
Malta v. Fla. Priory of Knights
Hospitallers of Sovereign Ord. of
Saint John of Jerusalem, Knights of
Malta, Ecumenical Ord.,
702 F.3d 1279 (11th Cir. 2012) .......................... 38
Spallone v. United States,
493 U.S. 265 (1990) ................................ 15, 17, 28
Stukenberg v. Abbott,
730 F. Supp. 3d 354 (S.D. Tex. 2024)................... 1
Turner v. Rogers,
564 U.S. 431 (2011) ............................................ 18
U.S. Steel Corp. v. United Mine
Workers,
534 F.2d 1063 (3d Cir. 1976) .............................. 30
Union Tool Co. v. Wilson,
259 U.S. 107 (1922) .........17, 18, 20, 21, 25, 26, 28
United States v. Fleischman,
339 U.S. 349 (1950) ............................................ 29
xiii
United States v. Hess,
106 F.4th 1011 (10th Cir. 2024) ......................... 36
United States v. Johnson,
659 F.2d 415 (4th Cir. 1981) .................. 27, 38, 39
United States v. Lyon,
588 F.2d 581 (8th Cir. 1978) .............................. 36
United States v. Martinovich,
810 F.3d 232 (4th Cir. 2016) .............................. 36
United States v. Microsoft Corp.,
56 F.3d 1448 (D.C. Cir. 1995)............................. 37
United States v. Robin,
553 F.2d 8 (2d Cir. 1977) .................. 35, 36, 37, 38
United States v. Shaygan,
652 F.3d 1297 (11th Cir. 2011) .......................... 36
United States v. Thomas-Mathews,
81 F.4th 530 (6th Cir. 2023) ............................... 36
Vieth v. Jubelirer,
541 U.S. 267 (2004) ............................................ 32
CONSTITUTIONAL PROVISION & STATUTES
U.S. Const. amend. XIV §1 ........................................ 1
28 U.S.C. §1254(1) ..................................................... 1
28 U.S.C. §1331 .......................................................... 6
42 U.S.C. §1983 ...................................................... 2, 6
xiv
OTHER AUTHORITY
James A. Worth, Note, Destigmatizing
the Reassignment Power, 17 Geo. J.
Legal Ethics 565 (2004) ...................................... 35
PETITION FOR WRIT OF CERTIORARI
Petitioners, a certified class comprising foster
children
in
the
permanent
managing
conservatorship of the State of Texas, respectfully
petition for a writ of certiorari to review the
judgment of the United States Court of Appeals for
the Fifth Circuit in No. 24-40248.
OPINIONS BELOW
The Fifth Circuit’s opinion is published at 119
F.4th 373. App.1a-47a. Its denial of rehearing en
banc and Judge Higginson’s dissent are published at
132 F.4th 770.
App.796a-807a.
The district
court’s order is published at 730 F.Supp.3d 354.
App.48a-795a.
JURISDICTION
The Fifth Circuit’s judgment was entered
October 11, 2024. The court denied petitioners’
timely petition for rehearing en banc on February
11, 2025. This Court has jurisdiction under 28
U.S.C. §1254(1).
CONSTITUTIONAL PROVISION AND STATUTE
INVOLVED
U.S. Const. amend. XIV §1 provides in relevant
part:
No State shall make or enforce any law
which shall abridge the privileges or
immunities of citizens of the United
States; nor shall any State deprive any
person of life, liberty, or property,
without due process of law.
2
42 U.S.C. §1983 provides in relevant part:
Every person who, under color of any
statute, ordinance, regulation, custom,
or usage, of any State or Territory or
the District of Columbia, subjects, or
causes to be subjected, any citizen of
the United States or other person
within the jurisdiction thereof to the
deprivation of any rights, privileges, or
immunities secured by the Constitution
and laws, shall be liable to the party
injured in an action at law, suit in
equity, or other proper proceeding for
redress.
3
STATEMENT OF THE CASE
Dissenting from denial of rehearing en banc,
Judge Higginson summed up the effect of his court’s
decision:
[T]oday, we turn away the children
protected by [constitutional] guarantees
and shut the doors of this court. On
the other side, with them, is Supreme
Court precedent and our own case law
and the familiarity built by a fellow
inferior court judge over many long
years. On the other side is abuse and
neglect, put out of sight of the law once
more.
App.807a.
This appeal stems from longstanding efforts to
reform Texas’s unsafe foster care system. The Fifth
Circuit reversed the underlying contempt order,
imminently threatening the safety of disabled foster
children.
And it removed the long-presiding
district judge, causing further delay in fixing the
broken system and long-term risk to thousands more
children.
Petitioners are a certified plaintiff class
comprising all foster children in Texas’s permanent
managing conservatorship (PMC). In 2011, they
sued Texas officials—the Governor and the
Commissioners of the Health and Human Services
Commission (HHSC) and Department of Family
Protective Services (DFPS).
The Fifth Circuit
previously affirmed defendants’ liability for violating
the children’s constitutional right to reasonable
4
safety and, in 2019, affirmed a comprehensive
permanent injunction mandating specified reforms.
Since, plaintiffs have sought to enforce compliance,
including, when necessary, through civil contempt.
DFPS was once part of HHSC, but the two are
now separate agencies. Because, as of trial, DFPS
was
within
HHSC
and
conducted
all
abuse-and-neglect investigations, remedial orders
relating to such investigations reference “DFPS” but
also bind HHSC. See App.21a-22a. DFPS remains
responsible for abuse-and-neglect investigations
involving most PMC children. But HHSC is now
solely responsible for investigations involving
certain disabled PMC children.
In its
investigations involving disabled children, HHSC
follows different policies and practices than DFPS
uses and has not implemented reforms DFPS has.
See App.5a, 21a-22a, 494a-495a.
The underlying contempt order concerns HHSC’s
admitted failure to protect disabled foster children
from abuse and neglect. On appeal, the State also
requested the case be reassigned from the district
judge who had presided for 13 years. The Fifth
Circuit reversed the contempt order, viewing the
affected disabled children as “just a drop in the”
systemwide “bucket.” App.22a. And it removed
the judge, finding her concern for all children in the
“bucket” excessive.
As to contempt, the Fifth Circuit excused
HHSC’s noncompliance with orders requiring
prompt
and
effective
abuse-and-neglect
investigations and held the district court lacked
power to compel compliance even by coercive,
5
prospective civil sanctions. As to reassignment, the
court seized on oral remarks by the judge—reflecting,
at most, opinions developed through long experience
with this litigation—and discounted the waste,
duplication, and delay from changing judges.
The panel’s analysis as to both issues conflicts
with precedent of this Court, the Fifth Circuit itself,
and other circuits. It demonstrates the need for
this Court to speak clearly about how courts should
enforce compliance with valid injunctions and how
circuits should approach the grave question whether
to remove a district judge.
“Forgotten Children”
For decades, Texas’s thousands of foster
children were “shuttled throughout a system where
rape, abuse, psychotropic medication and instability
[were] the norm.” M. D. by Stukenberg v. Abbott, 907
F.3d 237, 289 (5th Cir. 2018) (Stukenberg I)
(Higginbotham, J., concurring) (quoting district
court verdict).
As the Fifth Circuit initially
recognized in affirming the district court’s core
liability findings, it was “painfully obvious” that
policies and practices—including “high error rates in
abuse investigations and inadequate enforcement
policies”—placed children at “substantial risk” of
physical and emotional injury or death. Id. at 267.
Long before the children asked federal courts
to protect them, Texas leaders saw the lamentable
state of the system.
In 1996, Governor Bush
convened a committee that found a caseworker
shortage.
Id. at 293.
Eight years later, the
Comptroller issued a report, Forgotten Children, still
6
finding understaffing and rampant sexual abuse.
Id.
In 2011, a putative class of PMC foster
children sued under 42 U.S.C. §1983 seeking
injunctive relief. The Southern District of Texas
case was assigned to Judge Janis Graham Jack.
That court has jurisdiction under 28 U.S.C. §1331.
Judge Jack certified a general class and
subclasses. M.D. v. Perry, 294 F.R.D. 7 (S.D. Tex.
2013). After a two-week bench trial in 2014, the
“conscientious” Judge Jack held Texas was
deliberately indifferent to known and obvious safety
risks,
violating
the
children’s
Fourteenth
Amendment
substantive-due-process
rights.
Stukenberg I, 907 F.3d at 246; M.D. v. Abbott, 152
F.Supp.3d 684 (S.D. Tex. 2015).
Judge Jack gave Texas “the first opportunity
to correct its own errors.” Stukenberg I, 907 F.3d at
272 (cleaned up) (quoting Lewis v. Casey, 518 U.S.
343, 362 (1996)). She set forth detailed reform
goals and appointed special masters to help craft
reforms. In re Abbott, 667 F. App’x 473, 473-74 (5th
Cir. 2016) (denying mandamus to vacate masters’
appointment).
The masters intensively studied Texas’s
system and made findings and recommendations.
Stukenberg I, 907 F.3d at 247.
Judge Jack
intended and hoped for a collaborative process. Id.
at 261-62. But Texas “repeatedly refused to work
with the court-appointed Special Masters in creating
corrective policies and largely ignored the district
court’s orders that it implement policies and
procedures to minimize the risk of harm to the PMC
7
class.” Id. at 272. In this context, Judge Jack, in
2018, entered final judgment granting a permanent
injunction comprising numerous specific remedial
orders and appointed monitors. Id. at 247.
In Stukenberg I, the Fifth Circuit affirmed
defendants’ constitutional liability for violations
involving caseworker caseloads and inadequate
monitoring and oversight. Stukenberg I, 907 F.3d.
at 273-81. It noted Judge Jack “was entitled to
worry about the State’s motivation to self-correct
and was justified in doubting that it would achieve
compliance independently.”
Id. at 272.
On
remand, the district court issued a modified
injunction. The State again appealed. M.D. ex rel.
Stukenberg v. Abbott, 929 F.3d 272, 275 (5th Cir.
2019) (Stukenberg II).
In Stukenberg II, the Fifth Circuit affirmed
most post-remand remedial orders. See 929 F.3d at
281.
Although rejecting select orders, it
acknowledged Judge Jack’s “faithful[] adher[ence] to
Stukenberg I” and “well-intentioned attempt to fix”
problems. Id. at 277-80. The affirmed orders
became effective upon the July 2019 mandate. Id. at
280-81.
Prior Contempt Orders
The State was first held in civil contempt for
violating requirements for 24-hour supervision in
facilities housing more than six children. M.D. ex
rel. Stukenberg v. Abbott, 977 F.3d 479, 482 (5th Cir.
2020) (Stukenberg III). It was ordered to pay daily
fines of $50,000 for seven days, $100,000 thereafter,
until it certified compliance.
Id.
Defendants
appealed a provision of the order requiring approval
8
before moving children, but not the contempt finding
or sanctions. See Stukenberg III, 977 F.3d at 482.
In Stukenberg III, the Fifth Circuit reversed
the challenged provision as inconsistent with
Stukenberg II’s mandate, but did “not question the
good faith of the district judge.” Id. at 482-83.
Remanding, it reiterated Stukenberg II’s mandate
for the district court to implement the affirmed
permanent injunction. Id. at 483.
In December 2020, Judge Jack held DFPS in
civil contempt for violating several remedial orders,
including ones relating to abuse-and-neglect
investigations, preventing sexual abuse, and
caseworker caseloads, and warned sanctions would
issue absent compliance within 30 days. M.D. ex
rel. Stukenberg v. Abbott, 509 F.Supp.3d 683, 893
(S.D. Tex. 2020).
The judge also held HHSC in civil contempt
for inadequate licensing and enforcement actions
involving facilities with histories of abuse and
neglect, warning failure to certify compliance within
15 days would result in $75,000 daily fines until
HHSC certified compliance. Id. at 894. She later
extended the compliance deadline. See ROA.122,
ROA.59889-90. Although not perfect, the State
made “great strides in compliance.” ROA.59889-90.
Defendants understood these to be civil
contempt orders intended to coerce compliance.
The 2024 Contempt Order
The contempt order now at issue is against
only HHSC, the agency solely responsible for abuseand-neglect investigations involving a population of
9
developmentally disabled foster children. HHSC
systemically failed to conduct timely and effective
investigations, leaving several such children in
potentially dangerous settings for periods exceeding
a year and all at risk of harm.
HHSC is responsible for investigating abuse
and neglect of foster children in Medicaid’s Home
and Community-Based Services (HCS) program.
App.493a. In recent years, the relevant population
has numbered from 70-100 disabled children.
App.494a n.205. Although a fraction of the PMC
class, these children are among the most vulnerable.
They “have various documented developmental and
intellectual disabilities, and the full IQ score of the
children identified in Monitors’ reports range from
40–71.” App.500a. They “receive around-the-clock
residential assistance from staff employed by the
HCS program provider, who help” them “perform
various essential tasks of daily living.” App.493a494a.
In 2023, the court-appointed monitors
reviewed
recent
HHSC
investigations
and
documented
pervasive
noncompliance
with
requirements for timely, effective investigations
accounting for child safety. E.g., App.500a-513a,
518a-654a.
For example, Child C, a disabled,
nonverbal girl, suffered several events of abuse,
including credibly alleged sexual abuse, being
tasered, and receiving a broken jaw.
HHSC
conducted 12 noncompliant investigations, most
taking 16-19 months. See App.518a-577a.
Defendants largely never disputed facts in the
monitor reports. See App.513a, 609a-610a, 628a-
10
630a.
At the hearing, defendants offered no
evidence contradicting them, and the responsible
HHSC executive confirmed them.
ROA.62728,
63726-27, 62828-29, 62835-39, 62841-44, 62852;
App.663a.
HHSC’s conduct implicated provisions of the
permanent injunction designated Remedial Orders 3
and 10. App.54a-56a. Order 3 requires that all
abuse-and-neglect investigations comport with the
injunction’s time requirements and be “conducted
taking into account at all times the child’s safety
needs.”
App.54a-55a.
Order 10 requires that
high-priority investigations be completed within 30
days unless extended for documented “good cause.”
App.56a. Stukenberg I expressly validated both
orders. 907 F.3d at 276-77.
Orders 3 and 10 do not distinguish between
investigations involving the general PMC population
and those involving disabled children. Nor do they
permit disparate treatment of the latter group. See
App.54a-56a.
Yet,
compared
to
DFPS
investigations, HHSC “investigations do not use the
same parameters.” App.494a-495a.
HHSC’s deficiencies were pervasive. HHSC
investigations routinely take over a year, often
without documented extensions, violating Order 10.
See, e.g., App.499a-502a.
Delays and defects
endanger children, including by leaving them in
dangerous settings with perpetrators who escape
detection, violating Order 3. E.g., ROA.47533-52.
Based on monitor reports, documentary
evidence, and live testimony in a three-day hearing,
the district court found the HHSC Commissioner in
11
contempt for HHSC’s systemic violations of Orders 3
and 10. App.484a-688a. To coerce compliance, the
April 15, 2024 contempt order imposed daily
sanctions of $50,000 per remedial order until HHSC
certifies that investigations closed since December 4,
2023 (when the hearing started) or still open “are
substantially compliant” with Order 3 and 10
respectively. App.686a-688a. The order defined
“substantial compliance” as taking “all reasonable
steps within [one’s] power” to ensure compliance.
App.76a-79a.
The order was narrow. The district court
refrained from holding defendants in contempt as to
other serious issues raised. App.81a-82a. Instead,
its order discussed “areas of continuing concern,”
which the judge hoped would “help guide the
defendants to implement remedial orders based on
the injunctive relief and keep these children free
from an unreasonable risk of serious harm.”
App.81a-484a.
Fifth Circuit Opinion
The State appealed and also requested that
the case be reassigned. The panel reversed the
contempt order and granted reassignment.
“A criminal contempt”
The court held the sanctions against HHSC
were criminal, not civil, in nature. App.7a. It
reasoned they were at least partially retrospective,
because they reached pending and recently closed
investigations, and that this partial retrospectivity
rendered the entire order punitive and criminal.
App.9a-10a, 15a-16a.
It “buttressed” that
12
conclusion by reference to factors addressed in
International Union, United Mine Workers of
America v. Bagwell, 512 U.S. 821 (1994). App.11a13a, 15a-16a. Based on its holding that the order
was criminal, the court additionally held it violated
sovereign immunity. App.17a-19a.
“Just a drop in the bucket”
The court also ruled HHSC could not be held
in contempt regardless because it proved
“substantial compliance.” App.23a. The court’s
primary reasoning was that, although HHSC and
DFPS are now separate and only HHSC is
responsible for the relevant investigations involving
disabled children, both agencies’ performance should
be considered in aggregate. App.22a-23a. DFPS
conducts thousands of investigations involving the
general PMC population, and the monitors found
higher recent compliance by DFPS. See id. The
court
declared
dozens
of
botched
HHSC
investigations involving disabled children “are all
just a drop in the bucket of systemwide
investigations.” Id.
“Judge must be removed”
The court also ordered reassignment to a
different judge. App.47a. It acknowledged that
the Fifth Circuit uses two different tests to decide on
reassignment. App.24a. It purported to apply
both to reach the same result. App.24a-25a.
The first test looks at three factors, including
not only the appearance of partiality but also
judicial efficiency. App.24a. The second considers
only partiality or its appearance. App.24a-25a.
13
The court principally based its ruling on
selected oral statements made by the presiding
judge after years of supervising the complicated
remedial phase of this litigation, in which the State’s
liability for violating children’s constitutional rights
was already established. See App.25a-44a. In
assessing those remarks, the court did not apply
Liteky v. United States, 510 U.S. 540, 550-51 (1994)
(judges generally not “recusable for bias” because of
opinions properly acquired in litigation unless
predisposition is “extreme”). See App.25a-44a.
The court purported to weigh “any ‘gain in
preserving the appearance of fairness’ against any
‘waste and duplication.’” App.44a (quoting Johnson
v. Sawyer, 120 F.3d 1307, 1333, 1335 (5th Cir.
1997)).
But, despite recognizing Judge Jack’s
intimate familiarity with the proceedings and the
system and “the complexity of the case,” it
deprecated that concern. See App.44a-45a.
Dissent from Rehearing En Banc
Plaintiffs petitioned for rehearing en banc,
which the court denied by a nine-to-five vote.
App.797a-798a.
Judge Higginson authored a
dissent from denial, joined by three others. Id.
Judge Higginson disagreed that contempt
sanctions are “retroactive” (and therefore criminal)
simply because “predicated on events in the past.”
App.799a. The district court was attempting to
coerce future compliance by looking at ongoing
noncompliance, not to punish past noncompliance.
App.800a.
14
He further faulted the panel for holding that
even civil aspects of the sanctions were void for lack
of criminal process. App.800a-802a.
Judge Higginson also criticized the panel for
using a purely mathematical standard to hold the
State substantially complied. App.803a-804a. The
panel never offered a “manageable standard” but
instead relied on decontextualized numbers. See id.
Rather than remand for reevaluation of compliance
under a correct legal standard, the panel discounted
the district court’s detailed opinion and summarily
found substantial compliance. App.804a.
Also, the ruling removing Judge Jack
warranted reconsideration. App.805a. The panel
failed to accord proper weight to her accumulated
expertise and experience; judges’ human tendency to
form opinions during proceedings; the chancellor’s
traditional role in protecting the helpless; and the
fact that allegedly intemperate remarks arose “in
yearslong dialogue with counsel” while working to
implement the permanent injunction. App.805a807a.
Judge Higginson was “particularly untroubled
by Judge Jack’s diligent attention to the interests of
the children in the Texas foster care system.”
App.806a.
15
REASONS FOR GRANTING THE PETITION
The Fifth Circuit already affirmed the State’s
liability for violating children’s constitutional rights
and validated Orders 3 and 10. Stukenberg II, 929
F.3d at 276-81; Stukenberg I, 907 F.3d at 272, 27677, 287-88; cf. Spallone v. United States, 493 U.S.
265, 273-74 (1990) (in review of contempt sanctions,
there was “no question about” city’s liability for
racial discrimination or district court’s remedial
order when both had been affirmed). The State
never sought this Court’s review.
Also established is that HHSC failed to comply
with Order 3 or Order 10 or both in each
investigation on which the contempt finding was
based. The State never disputed the fact of HHSC’s
own noncompliance, and the court of appeals never
questioned it. See, e.g., App.22a-23a.
Thus, as to contempt, this case presents “purely
legal” issues. App.6a. Those questions include
whether, given its own undisputed noncompliance,
HHSC can rely on co-defendant DFPS’s better
compliance and whether the district court’s
contempt finding supports civil sanctions.
The
Fifth Circuit resolved those questions in ways that
conflict with precedent of this Court and of other
circuits and that hobble courts’ ability to enforce
compliance with injunctions, especially in similar
cases.
Also, the Court should bring uniformity and
objectivity to how the circuits decide whether to
reassign cases. While fragile children remain at
risk in an incompletely reformed system, the Fifth
Circuit has, as Judge Higginson’s dissent explains,
16
removed “a district court judge who is deeply
familiar with the parties and their conduct and with
the substantial public interests at stake.”
App.807a.
Reassignment should be extraordinary and rare,
not a workaday offensive weapon for disgruntled
litigants. Circuit courts making such decisions
should apply consistent standards when evaluating
alleged bias and, especially in cases like this, give
sufficient weight to waste, duplication, and delay
caused by changing judges.
I.
THE COURT SHOULD ENSURE UNIFORMITY IN
HOW COURTS ENFORCE INJUNCTIONS THROUGH
CIVIL CONTEMPT AND ASSESS “SUBSTANTIAL
COMPLIANCE.”
To absolve HHSC of flagrantly violating
injunctive orders intended to keep children safe, the
Fifth Circuit ignored and distorted its own and this
Court’s precedent on contempt. This Court should
ensure uniformity, consistency, and effectiveness in
how courts enforce valid injunctive decrees through
civil contempt proceedings and evaluate a
defendant’s “substantial compliance.”
Federal “courts have inherent power to enforce
compliance with their lawful orders through civil
contempt.” Shillitani v. United States, 384 U.S.
364, 370 (1966).
Indeed, private parties are
entitled to civil-contempt judgments necessary to
vindicate their rights. “Civil as distinguished from
criminal contempt is a sanction to enforce
compliance with an order of the court or to
compensate for losses or damages sustained by
reason of noncompliance.” McComb v. Jacksonville
17
Paper Co., 336 U.S. 187, 191 (1949). Accordingly,
“the grant or withholding of remedial relief is not
wholly discretionary with the judge.” Id.; see also
Union Tool Co. v. Wilson, 259 U.S. 107, 111-12
(1922) (in determining “whether an injunction has
been violated and, if so, whether compensation shall
be made to the injured party, there may be occasion
for the exercise of judicial discretion; but the order to
be entered in such a proceeding is not exclusively or
necessarily a discretionary one”). In civil contempt
cases, “legal discretion . . . does not extend to a
refusal to apply well-settled principles of law to a
conceded state of facts.” Union Tool, 259 U.S. at
112.
The D.C. Circuit recently reiterated these
principles: “Because civil contempt vindicates the
rights of private parties, . . . district courts do not
have discretion to overlook a proven violation,
absent a recognized defense.” Potter v. D.C., 126
F.4th 720, 724 & n.1 (D.C. Cir. 2025) (collecting
cases).
By contrast, the Fifth Circuit’s decision turns
these principles on their head. On the “conceded
state of facts” regarding HHSC’s noncompliance, the
district court found contempt of the affirmed
injunction and granted plaintiffs’ requested
remedy—sanctions intended to coerce HHSC to
protect disabled children going forward.
Cf.
Spallone, 493 U.S. at 273-74, 276-77 (when
constitutional liability and remedial order had been
affirmed and city, by consent judgment, committed
to enact legislation, district court did not abuse
discretion by sanctioning city for its failure). In
reversing, the Fifth Circuit effectively held the
18
district court had no discretion to grant coercive,
civil remedies that vindicate rights of the affected
disabled-child population. Cf. Union Tool, 259 U.S.
at 114 (“District Court was not justified in purging”
contempt when, on conceded facts, injunction was
violated (emphasis added)).
Each of the Fifth Circuit’s three analytical steps
(1) conflicts with precedent of this Court and other
circuits; (2) undermines courts’ ability to enforce
decrees; and (3) deprives vulnerable populations,
like these children, of needed protections.
First, the court concluded the contempt order
was criminal, despite its obvious coercive purpose.
Second, misconstruing a procedural rule as
substantive, it compounded that error by holding the
sanctions could not simply be modified to excise
criminal components. Third, it held, regardless, the
disabled class members have no recourse against
HHSC, the agency responsible for investigations
involving them, because they are too few compared
to the systemwide population—“just a drop in the
bucket.” App.22a.
A. The Court Should Provide Guidance for
Distinguishing Civil from Criminal
Contempt.
“Civil contempt differs from criminal contempt
in that it seeks only to coerce the defendant to do
what a court had previously ordered him to do.”
Turner v. Rogers, 564 U.S. 431, 441-42 (2011)
(cleaned up). That is what the contempt order here
sought, as indicated by “its character and purpose.”
Gompers v. Bucks Stove & Range Co., 221 U.S. 418,
441-42 (1911); see also, e.g., Shillitani, 384 U.S. at
19
369. The district court attempted to compel HHSC
to better protect disabled children by “a per diem
fine imposed for each day [the] contemnor fail[ed] to
comply with an affirmative court order.” Bagwell,
512 U.S. at 829.
Bagwell—three decades ago—is the last time
this Court addressed in depth the distinction
between civil and criminal contempt. Bagwell was
“a case . . . extreme on its facts.” Id. at 840 (Scalia,
J., concurring).
This case presents a more
frequently arising scenario, in institutional-reform
litigation and other cases of similar scope: a district
court
enforcing
long-term
compliance
with
permanent, affirmative injunctive orders.
The Fifth Circuit’s conclusion that the contempt
order was entirely criminal demonstrates the need
for the Court to revisit the civil-criminal
distinction—now in a context more likely to recur.
Bagwell involved $52 million in fixed fines
against a union for various past conduct by
individual members during a since-settled strike.
Id. at 823-24, 837. Having settled with the union,
the affected mining companies disclaimed any
interest in the fines, which the state trial court
decreed payable to the public. Id. at 825. On
those unique facts, it is unsurprising this Court held
the non-purgeable, fixed fines for completed conduct
a punitive, criminal sanction. See id. at 839-40
(Scalia, J., concurring) (observing that the Court’s
“cases have employed a variety of not easily
reconcilable tests for differentiating between civil
and criminal contempts” and, on Bagwell’s
20
“extreme” facts, all tests “would yield the same
result”).
This case is far different. For one, the relevant
facts about HHSC’s conduct are undisputed. No
“elaborate . . . factfinding,” id. at 833-34, was
required, only applying “well-settled principles of
law to a conceded state of facts,” Union Tool, 259
U.S. at 112.
For another, the district court imposed
prospective daily fines that cease accumulating once
HHSC establishes substantial compliance in current
investigations.
Such fines are paradigmatic
coercive sanctions. E.g., Bagwell, 512 U.S. at 829
(“A close analogy to coercive imprisonment is a per
diem fine imposed for each day a contemnor fails to
comply with an affirmative court order.”). As Judge
Higginson explains, “the point of the order was for
HHSC to rectify its failures of transparency by
certifying to the court that any deficiencies that
could be remedied had been addressed.” App.801a.
Central to the Fifth Circuit’s holding that the
sanctions were criminal was its view that they
punished for past conduct because suspending them
required HHSC to certify substantial compliance for
closed and pending investigations.
App.9a-10a.
The panel reasoned the order punished unfixable
past failures. Id.
But, as Judge Higginson notes, this is “a matter
of interpretation.” App.801a. The district court
defined “substantial compliance” as taking all
available “reasonable steps” within one’s power.
App.76a-79a. Thus,
21
Had HHSC certified to the district
court that investigations closed prior to
the order were not in substantial
compliance and could not be effectively
reopened to remedy their defects, it is
far from clear that the district court’s
order would have imposed fines upon
HHSC in perpetuity for a failure of
compliance that could never be
cured. . . . If it was felt that the district
court’s phrasing needed clarification,
the order could have simply been
modified for that purpose.
App.801a.
Because plaintiffs requested and the district
court intended coercive relief, the Fifth Circuit
should have construed the order as contemplating
civil sanctions. See, e.g., Shillitani, 384 U.S. 369;
Penfield Co. of Cal. v. Sec. & Exch. Comm’n, 330
U.S. 585, 590 (1947); Lamb v. Cramer, 285 U.S. 217,
220 (1932). Bagwell did not displace historical
tests for “differentiating between civil and criminal
contempts,” 512 U.S. at 839-40 (Scalia, J.,
concurring), like a sanction’s “character and
purpose” or whether it includes fines that “exert a
constant coercive pressure,” id. at 827-30.
Nonetheless, the Fifth Circuit felt two factors
discussed in outlier Bagwell “buttressed” its
conclusion that the order was criminal—the
involvement of out-of-court violations and “a
‘complex’ injunction.” App.11a.
The first factor was inapposite here, given the
“conceded state of facts.” Union Tool, 259 U.S. at
22
112.
Bagwell gives no indication the union
conceded the alleged “72 violations of the
injunction.” 512 U.S. at 824. But the Fifth Circuit
appeared to believe Bagwell makes the legal effect of
the conceded facts about HHSC’s conduct a jury
question. See App.12a.
Similarly, “complexity” has, at most, only
limited relevance.
Although the permanent
injunction as a whole may be considered complex,
this case concerns two specific remedial orders, each
affirmed as validly precise and imposing a few
discrete obligations.
If complexity is at all relevant, the inquiry
should be restricted to Orders 3 and 10. The Fifth
Circuit instead invoked the “wide-ranging scope of
[all of the] remedial orders that have reorganized
the entire foster-care system in Texas.” App.13a.
Bagwell considered “the entire decree” at issue only
because the Bagwell contempt order actually
implicated that entire decree. 512 U.S. 835-36.
Other circuits applying Bagwell recognize
that, when contempt proceedings involve only part
of a broader injunction, only that part is relevant to
complexity. For example, F.T.C. v. Trudeau, 579
F.3d 754 (7th Cir. 2009), rejected arguments that a
29-page consent order was “complex,” triggering
“heightened protections” under Bagwell, when “the
portion at issue here was just 14 words” and “not
overly onerous.” Id. at 776. Similarly, the en banc
Tenth Circuit, reviewing $39 million in sanctions for
“‘many instances’ of conduct violating five specific
paragraphs of” a 24-paragraph injunction governing
telemarketing, focused on the five relevant
23
paragraphs. F.T.C. v. Kuykendall, 371 F.3d 745,
748-52, 754, 756-57, 760 (10th Cir. 2004) (en banc).
Thus, the Fifth Circuit’s approach is not
supported by Bagwell itself and conflicts with how
other circuits apply Bagwell. If it becomes the rule,
it will hamper courts’ ability to enforce compliance
in institutional-reform cases and similar litigation.
Necessarily, comprehensive decrees in such cases
are complex and unwieldy to follow or enforce as
wholes. This is the very reason for granulating
such decrees into discrete remedial orders stating
precise obligations, as in this case’s permanent
injunction.
If
Bagwell
requires
procedures
like
independent prosecutors and jury trials before
coercive fines can be imposed, even when contempt
allegations implicate only discrete injunctive
provisions and facts are undisputed, long-term
enforcement
of
comprehensive
decrees
is
unworkable.
And vulnerable citizens—like the
disabled children here and thousands of remaining
Texas foster children—will lose vital protections.
The Court should instruct the courts that
Bagwell—a factually “extreme” case, 512 U.S. at 840
(Scalia, J., concurring)—does not dictate such
results. In this more typical contempt case, the
Court should confirm district courts’ ability to
ensure long-term compliance with comprehensive
decrees through civil contempt.
24
B. The Court Should Clarify That Civil
and Criminal Portions of “Mixed”
Contempt Orders Are Separable.
“[E]ven if the sanctions were criminal as applied
to past conduct, it takes an additional and unsteady
step to infer that the sanctions were thereby also
criminal as applied to HHSC’s future compliance.”
App.801a (Higginson, J., dissenting). The Fifth
Circuit panel took that step. Having concluded the
contempt order was at least partially punitive, it
compounded that error by further concluding that,
for this reason, it was entirely criminal and thus
invalid.
As Judge Higginson put it, “One explanation for
[the panel’s] missteps is that the panel opinion
thought it was proper to treat the contempt
sanctions at issue as a unified punitive and thus
retrospective whole.”
App.800a.
It did so by
misapplying this Court’s longstanding precedent
concerning procedural appealability of contempt
orders.
The Fifth Circuit’s jurisprudence now
conflicts with this Court’s and that of other circuits
when reviewing contempt orders containing “a true
mixture of both criminal and civil relief.” FDIC v.
LeGrand, 43 F.3d 163, 169-70 (5th Cir. 1995).
Under the panel’s view that the contempt order
penalized pre-order conduct, the remedy was to
affirm the civil-contempt finding and modify the
sanctions to ensure they were prospective only.
“Trimming any reference to the past from the order
could have been accomplished by taking out the days
from December 4 to April 15. That would have
settled any doubts on this score.”
App.803a
25
(Higginson, J., dissenting). A prior Fifth Circuit
case was directly on point: in Lamar Financial Corp.
v. Adams, 918 F.2d 564 (5th Cir. 1990), the court
reviewed daily fines that began accruing before the
contempt hearing and held the pre-hearing “portion”
improperly punitive but the post-hearing portion
permissibly coercive and civil.
Id. at 566-67.
Lamar accords with this Court’s precedent. See,
e.g., Penfield, 330 U.S. at 587-89, 591-95 (affirming
substituting coercive imprisonment for improper
punitive fine).
Here, the panel should have followed Lamar,
“treating the civil and criminal parts of the single
sanction at issue as severable.”
App.803a
(Higginson, J., dissenting). Instead, it concluded
“that the April 15 Order is at least partially
intended to punish Defendants’ ‘completed acts of
disobedience,’ . . . renders the [entire] sanction
criminal.” App.10a.
The panel misapplied the procedural rule that,
when a contempt order is partially remedial and
partially punitive, “the criminal feature of the order
is dominant and fixes its character for purposes of
review.” Nye v. United States, 313 U.S. 33, 42-43
(1941) (quoting Union Tool, 259 U.S. at 110).
“According substantive weight to this procedural
detail, the panel opinion reasoned that any
punishment for past noncompliance made the entire
contempt order criminal in nature and thus
rendered it void for lack of due process.” App.802a
(Higginson, J., dissenting). “[T]hat analysis was
incorrect and so was the conclusion.” Id.
26
The language the panel misapplied originated in
In re Merchants’ Stock & Grain Co., 223 U.S. 639
(1912), which held there was appellate writ-of-error
jurisdiction to review fines that were partially
compensatory and partially punitive. Id. at 640,
642. Union Tool, 259 U.S. at 110-11, 114, also
“treated the reviewability rule as procedural, and on
the merits sustained the ‘remedial, as distinguished
from punitive’ portion of the contempt sanction.”
App.802a (Higginson, J., dissenting) (internal
citations omitted).
Penfield expressly says this rule is procedural.
“Where a judgment of contempt is embodied in a
single order which contains an admixture of
criminal and civil elements, the criminal aspect of
the order fixes its character for purposes of
procedure on review.” 330 U.S. at 591 (emphasis
added). Penfield affirmed modifying a contempt
judgment to impose coercive civil imprisonment
rather than a punitive unconditional fine. Id. at
587-89, 591-95.
Nye likewise invoked the rule in considering a
procedural
question—whether
criminal
rules
governed what was not “a case of civil contempt.”
313 U.S. 41-42.
None of those cases holds that “admixture of
criminal and civil elements,” Penfield, 330 U.S. at
591, substantively renders a contempt order entirely
criminal. All illustrate that civil aspects of “mixed”
orders may be affirmed independently of criminal
aspects. See LeGrand, 43 F.3d at 169-70 (Fifth
Circuit previously recognizing this); see also
Shillitani,
384
U.S.
at
365
(conditional
27
imprisonment for refusal to testify to grand jury is
civil sanction but must end when jury’s term
expires).
The panel based its substantive use of the
procedural rule on a footnote in a prior Fifth Circuit
case stating that, in Nye, this Court “said that a
contempt proceeding is considered civil only when
the punishment is wholly remedial.” In re Stewart,
571 F.2d 958, 964 n.4 (5th Cir. 1978). Stewart, like
Bagwell, was extreme—a judge had a juror’s work
supervisor arrested, detained, prosecuted, and
punitively fined, without evidence he treated the
juror adversely. Id. at 961-65 & n.4. Stewart’s
mischaracterization of Nye was imprecise dicta.
Nearly five decades later, the panel seized on it to
thrust the Fifth Circuit’s contempt jurisprudence
into conflict with this Court’s and that of other
circuits.
Other circuits routinely distinguish criminal and
civil components of mixed contempt orders. E.g., F.J.
Hanshaw Enters., Inc. v. Emerald River Dev., Inc.,
244 F.3d 1128, 1145 (9th Cir. 2001) (vacating
criminal fine, affirming compensatory payment);
N.Y. State Nat’l Org. for Women v. Terry, 159 F.3d
86, 94 (2d Cir. 1998) (affirming modified contempt
order with purge provision); Nat’l Org. for Women v.
Operation Rescue, 37 F.3d 646, 662 (D.C. Cir. 1994)
(affirming daily and compensatory fines and
remanding other sanctions). The Fourth Circuit
may be on the Fifth Circuit’s side of the split. See
United States v. Johnson, 659 F.2d 415, 419 & n.3
(4th Cir. 1981) (discussing Union Tool and
appearing to apply procedural rule substantively to
28
hold arguably partially conditional prison sentence
entirely punitive).
Proceedings here undisputedly satisfied civil due
process.
The affected children are entitled to
coercive remedies to vindicate their adjudicated
“right to ‘personal security and reasonably safe
living conditions.’” Stukenberg I, 907 F.3d at 24850; see Spallone, 493 U.S. at 273-74, 276-77; Union
Tool, 259 U.S. at 114; Potter, 126 F.4th at 724 & n.1.
The Court should make clear that civil and
criminal aspects of mixed contempt orders can be
separated and hold that, on this record, civil
sanctions were valid.
***
The Fifth Circuit’s further holding that the fines
violated state sovereign immunity depends entirely
on its erroneous holding that they were purely and
unchangeably punitive and criminal.
App.17a
(“Determining whether a contempt fine is punitive
dictates whether it violates state sovereign
immunity.”).
Reversing the criminal-contempt
holding thus also disposes of the sovereignimmunity holding. See Hutto v. Finney, 437 U.S.
678, 690-91 (1978) (injunctions against state officers
“may be enforced” through conditional civilcontempt fines).
C. The Court Should Define “Substantial
Compliance,” Which Is Not Just a Math
Formula.
This Court should also address what constitutes
“substantial compliance” with injunctions sufficient
to avoid a civil-contempt judgment. The Fifth
29
Circuit’s holding on this issue conflicts with how
other circuits evaluate substantial compliance.
And it leaves the rights of small but especially
vulnerable groups, like the disabled children at
issue, unprotected.
The Fifth Circuit could have stopped at its
(erroneous) holding that the entire contempt order
was invalid for lack of criminal process. But it also
held—alternatively—that the State proved a
“substantial compliance” defense.
The court made several analytical missteps, two
primary among them: First, although HHSC is a
separate agency, the only agency responsible for the
relevant investigations, and the only defendant held
in contempt, the court credited it with co-defendant
DFPS’s better compliance. Second, having lumped
HHSC investigations involving disabled children
with thousands of DFPS investigations involving
other children, it concluded the defective HHSC
investigations were mathematically insignificant—
“all just a drop in the bucket of systemwide
investigations.” App.21a-23a.
“It is axiomatic that each defendant is entitled to
‘an individualized determination of his interests.’”
Kuykendall, 371 F.3d at 758.
And, when
“compliance with lawful orders requires joint action
by a responsible body of which [one] is a member, he
necessarily assumes an individual responsibility to
act, within the limits of his power to do so, to bring
about compliance with the order.” United States v.
Fleischman, 339 U.S. 349, 356-57 (1950).
Otherwise, co-defendants with joint responsibilities
could circumvent lawful orders. See id. “If the
30
members” of a government body “fail to obey,” a
court order “those guilty of disobedience may, if
necessary, be punished for the contempt.” Bd. of
Comm’rs of Leavenworth Cnty. v. Sellew, 99 U.S.
624, 627 (1878). Courts should “take care that only
those who are actually guilty of disobedience are
made to suffer for the wrong that is done.” Id.
In failing to differentiate between contemnor
HHSC and co-defendant DFPS, the Fifth Circuit
split with other circuits, which routinely conduct
individualized analysis of whether given defendants
committed contempt. In Kuykendall, for example,
the Tenth Circuit reviewed contempt findings
against multiple defendants, reversing them as to
those not shown to be responsible for contemptuous
conduct. 371 F.3d at 759-63; see also, e.g., FTC v.
Nat’l Urological Grp., Inc., 786 F. App’x 947, 960
(11th Cir. 2019); Gascho v. Glob. Fitness Holdings,
LLC, 875 F.3d 795, 803 (6th Cir. 2017); Aldape v.
Lambert, 34 F.3d 619, 623 (8th Cir. 1994); Donovan
v. Mazzola, 761 F.2d 1411, 1418-19 (9th Cir. 1985);
U.S. Steel Corp. v. United Mine Workers, 534 F.2d
1063, 1077 (3d Cir. 1976); Bd. of Ed. v. York, 429
F.2d 66, 70 (10th Cir. 1970).
Even more troubling, the Fifth Circuit used its
unjustifiable grouping of co-defendants to excuse
HHSC
for
its
own
egregious,
conceded
noncompliance—endangering
disabled
children
under HHSC’s watch. The district court found
HHSC in contempt based primarily on a compliance
rate of only 45% among 69 recent HHSC
investigations.
App.500a-501a.
Doing its own
fact-finding, the panel compared those to three
groupings of about 4,000 DFPS investigations,
31
among which the monitors found 73%-95%
compliance, and declared HHSC’s noncompliance
mathematically insignificant. App.22a-23a. But,
as Judge Higginson put it, “I doubt that relegating
disabled children, who are most at risk of abuse and
neglect in the foster system, to a separate and
inferior system of investigations pencils out to
substantial compliance under even the most
austerely mathematical of standards.” App.804a.
Even were it appropriate to aggregate HHSC’s
investigations
with
DFPS’s,
determining
“substantial compliance” with equitable decrees
cannot be reduced to simple math.
This is
especially
so
when
affected
litigants—like
developmentally disabled children—have special
need of protection. Cf. City of Cleburne, Tex. v.
Cleburne Living Ctr., 473 U.S. 432, 444 (1985) (“a
civilized and decent society expects and approves”
governmental measures accounting for the
developmentally disabled’s needs).
Multiple circuits agree that “‘substantial
compliance’ is not susceptible of a mathematically
precise definition.” Joseph A. by Wolfe v. N.M.
Dep’t of Human Servs., 69 F.3d 1081, 1085 (10th Cir.
1995); accord Coleman v. Newsom, 131 F.4th 948,
958 (9th Cir. 2025); Rouser v. White, 825 F.3d 1076,
1082 (9th Cir. 2016); Fortin v. Comm’r of Dep’t of
Mass. Pub. Welfare, 692 F.2d 790, 795 (1st Cir.
1982). The Fifth Circuit’s “drop in the bucket”
approach conflicts with substantial-compliance
analysis applied elsewhere.
As the district court observed, the Fifth Circuit
has not “given a definitive definition of ‘substantial
32
compliance.’”
App.76a.
That remains true
following its decision here. Although the opinion’s
analysis boils down to simple math, “[a]t no point”
does it “set forth any ‘judicially manageable
standard’ indicating that compliance, in whatever
way measured, was substantial.”
App.804a
(internal citation omitted) (quoting Vieth v.
Jubelirer, 541 U.S. 267, 291 (2004) (opinion of
Scalia, J.)).
In contrast, at least five circuits define
substantial compliance in terms of taking “all
reasonable steps.”
The Ninth Circuit recently
explained:
This defense is available to an alleged
contemnor that has “taken ‘all
reasonable steps’ to comply” with
applicable court orders, resulting in
merely “technical or inadvertant [sic]
violations” of those orders. In other
words, the substantial compliance
defense excuses an alleged contemnor
who, despite not achieving total
compliance, has achieved near-total
compliance through the exhaustion of
all reasonable efforts.
Coleman, 131 F.4th at 956 (internal citations
omitted); accord, e.g., In re Sealed Case, 77 F.4th
815, 834-35 (D.C. Cir. 2023), cert. denied sub nom. X
Corp. v. United States, 145 S. Ct. 159 (2024); De
Simone v. VSL Pharms., Inc., 36 F.4th 518, 529 (4th
Cir. 2022); F.T.C. v. Lane Labs-USA, Inc., 624 F.3d
575, 590-91 (3d Cir. 2010); Phone Directories Co. v.
33
Clark, 209 F. App’x 808, 815-16 (10th Cir. 2006);
Glover v. Johnson, 934 F.2d 703, 708 (6th Cir. 1991).
Had the Fifth Circuit applied that standard, the
outcome would have been different.
Even
considering performance on a systemwide basis, the
unrebutted deficiencies among investigations
handled by HHSC bar the State from showing it
took all reasonable steps to comply as to all
investigations.
Indeed, DFPS’s better compliance is among the
most damning evidence against systemwide
“substantial” compliance. If the State knows how
to and does take all reasonable steps for thousands
of other investigations, why can it not do so for
HHSC investigations involving disabled children?
Subjecting disabled children “to a separate and
inferior system of investigations,” App.804a, does
not result in merely “technical or inadvertent,” e.g.,
Coleman, 131 F.4th at 956-59, violations. The
State’s deliberate choice to treat this especially
vulnerable group differently resulted in actual
violations—and actual harm to disabled children.
The Ninth Circuit’s recent Coleman decision
illustrates the difference between the “all reasonable
steps” standard applied by a plurality of circuits and
the Fifth Circuit’s simple math formula. Coleman
affirmed findings that California failed to prove
substantial compliance regarding mental-health
staffing in prisons. 131 F.4th at 952-53, 956-59. It
achieved
adequate
staffing as
to certain
professionals but had excessive vacancy rates for
others. Id. at 959. California’s noncompliance
“was not only not technical in nature but ‘serious
34
and consequential’ in effect” because
“directly impacts patient outcomes.” Id.
staffing
By contrast, the Fifth Circuit gave no heed to
whether Texas took steps to make HHSC
investigations compliant, or to the serious
consequences of noncompliance.
Convicted
criminals in circuits requiring “all reasonable steps”
enjoy more protection for their mental health than
the Fifth Circuit affords disabled foster children for
their physical safety.
The Court should grant review and hold that
“substantial
compliance”
means
taking
all
reasonable steps to comply.
The substantialcompliance standard should also account for the
seriousness of the consequences of noncompliance
and whether violations were merely technical or
inadvertent. It should not be reduced to simple
arithmetic.
II. THE COURT SHOULD ENSURE UNIFORMITY IN
HOW CIRCUITS HANDLE REASSIGNMENT, WHICH
SHOULD REMAIN RARE AND EXCEPTIONAL.
The Court should also instruct the circuits on
“the exceedingly high threshold for removing an
Article III colleague.” App.807a (Higginson, J.,
dissenting).
Courts considering reassignment
should significantly weight the waste and
duplication it entails, especially in high-stakes cases
where delay endangers the rights and safety of
vulnerable litigants. And they should apply this
Court’s analysis regarding alleged bias in Liteky, a
recusal case, in the reassignment context.
35
At defendants’ behest, the Fifth Circuit
reassigned this case from the district judge who
diligently shepherded it for 13 years. In doing so,
the court overweighted and decontextualized a
sampling of allegedly intemperate remarks while
giving scant weight to the inevitable waste,
duplication, and delay—a factor most circuits give
substantial weight. As Judge Higginson worried, it
concluded “that Judge Jack is not suited to preside
over this case for precisely the reasons that she is
suited to preside over this case.” App.807a.
Reassignment should continue to be rare and
exceptional. A lax and subjective standard, like the
Fifth Circuit applies, encourages and rewards
judge-shopping by disgruntled litigants.
A. Most Circuits Consider
Duplication; Some Do Not.
Waste
and
The circuits disagree about how to decide
whether to reassign. A minority stop at considering
impartiality and its appearance. Most balance that
consideration with additional factors, including
judicial efficiency. See James A. Worth, Note,
Destigmatizing the Reassignment Power, 17 Geo. J.
Legal Ethics 565, 581-88 (2004) (analyzing circuit
split).
The majority use a three-factor test named for
leading decision United States v. Robin, 553 F.2d 8
(2d Cir. 1977) (en banc). In Robin, the Second
Circuit considered three factors:
(1) whether the original judge would
reasonably be expected upon remand to
have substantial difficulty in putting
36
out of his or her mind previouslyexpressed views or findings determined
to be erroneous or based on evidence
that must be rejected,
(2) whether reassignment is advisable
to preserve the appearance of justice,
and
(3) whether reassignment would entail
waste and duplication out of proportion
to any gain in preserving the
appearance of fairness.
553 F.2d at 10; accord Revitalizing Auto Cmtys.
Env’t Response Tr. v. Nat’l Grid USA, 92 F.4th 415,
449-50 (2d Cir. 2024).
The First, Fourth, Sixth, Ninth, Tenth, and
Eleventh Circuits also utilize those three factors.
Candelario Del Moral v. UBS Fin. Servs. Inc. of
P.R., 699 F.3d 93, 107 (1st Cir. 2012); United States
v. Martinovich, 810 F.3d 232, 245 (4th Cir. 2016);
United States v. Thomas-Mathews, 81 F.4th 530, 547
(6th Cir. 2023); Disability Rights Mont., Inc. v.
Batista, 930 F.3d 1090, 1100 (9th Cir. 2019); United
States v. Hess, 106 F.4th 1011, 1039 (10th Cir.
2024); United States v. Shaygan, 652 F.3d 1297,
1318 (11th Cir. 2011); see also United States v. Lyon,
588 F.2d 581, 583 (8th Cir. 1978) (commending
Robin).
In the minority, the Third and D.C. Circuit do
not consider waste and duplication. Their sole
focus is impartiality and its appearance.
The
leading Third Circuit case is Haines v. Ligget Group,
37
Inc., 975 F.2d 81 (3d Cir. 1992). That court’s
“polestar is impartiality and the appearance of
impartiality.” Id. at 98 (cleaned up); accord In re
Kensington Int’l Ltd., 368 F.3d 289, 301 (3d Cir.
2004).
The D.C. Circuit likewise applies the
impartiality-only test, merely asking whether “the
facts might reasonably cause an objective observer
to question the judge’s impartiality.” United States
v. Microsoft Corp., 56 F.3d 1448, 1463 (D.C. Cir.
1995) (cleaned up); accord In re Kellogg Brown &
Root, Inc., 796 F.3d 137, 151 (D.C. Cir. 2015).
Robin’s first and second factors arguably overlap
and may even merge to constitute the impartiality
factor solely considered under the minority test.
But Robin’s third factor is distinct—at least absent
actual partiality, it demands that “appearance”
concerns be sufficiently strong to override actual
harm to the judicial system and litigants.
The Fifth Circuit has long straddled this split,
checking both the Robin and the minority
impartiality-only tests in opinions.
E.g., In re
DaimlerChrysler Corp., 294 F.3d 697, 700 (5th Cir.
2002); Johnson, 120 F.3d at 1333.
Here, it
continued straddling.
App.24a-25a.
However,
while the court recited the three Robin factors, it did
not properly weigh the waste, duplication, and delay
from replacing a judge in lengthy, complex
institutional-reform litigation. App.44a-45a.
If a judge’s experience and acquired expertise
should count most in any type of case, it is that
involving reform of complex agencies. See Hutto,
437 U.S. at 688 (in prison-reform case, “exercise of
discretion” was “entitled to special deference because
38
of the trial judge’s years of experience with the
problem at hand and his recognition of the limits on
a federal court’s authority in a case of this kind”).
The panel recognized Judge Jack “is intimately
familiar with the course of proceedings” and “the
scope of the demands placed upon state agencies
that are responsible for a $2 billion budget, over
29,000 children, and 100,000 facilities.” App.44a.
Yet it concluded the waste-and-duplication factor
made no difference. App.44a-45a.
But, if the results of the Robin and the minority
impartiality-only tests are ever to diverge, this is the
type of litigation in which they should. See, e.g.,
Sovereign Mil. Hospitaller Ord. of Saint John of
Jerusalem of Rhodes & of Malta v. Fla. Priory of
Knights Hospitallers of Sovereign Ord. of Saint John
of Jerusalem, Knights of Malta, Ecumenical Ord.,
702 F.3d 1279, 1297 (11th Cir. 2012) (denying
reassignment in “fact-intensive” case despite judge’s
“wholly inappropriate” remarks); Sierra Club v. Van
Antwerp, 526 F.3d 1353, 1364 n.9 (11th Cir. 2008)
(denying reassignment given “massive record”).
The Fifth Circuit reasoned the obvious weight of
the waste-and-duplication factor was not decisive
because it had ordered reassignment in complex,
long-running litigation before. See App.44a-45a
(“On the other hand, this court has not previously
hesitated, when necessary, to remove a judge from
extended litigation.”). It cites two examples (one
from another circuit), but neither justifies
discounting the waste here. See id.
The court cites Johnson, which described that
litigation as a decade-long “hotly contested,
39
extremely emotional case.” 120 F.3d at 1333. But
Johnson was lilliputian compared with this case,
being one man’s suit over wrongful disclosure of tax
returns. Id. at 1309.
The court next cites the D.C. Circuit’s opinion in
Cobell.
While Cobell, involving systemic
mishandling of Indian trust property by the Interior
Department, was more comparable to this case, that
court did not consider waste and inefficiency. See
455 F.3d at 332-35. This is understandable as that
circuit follows the minority impartiality-only test.
Moreover, Cobell is an extreme, highly
distinguishable example of when the waste-andduplication factor should make no difference.
Unlike here, the Cobell record was replete with
evidence of actual bias—especially the judge’s
blistering written opinion gratuitously discussing
topics like “cultural genocide” and accusing Interior
of racism, “dirty tricks,” “outright villainy,” and the
like. Id. at 331-34. Additionally, that invective
“follow[ed] an unbroken string of” eight “reversed
district court orders.” Id. at 334.
Here, the waste-and-duplication factor should be
given special weight.
Given repercussions for
thousands of children during formative years,
consequences of delay are especially severe. Each
passing month that Texas’s system remains
noncompliant, children are at risk of aging out more
damaged than when they entered. See Stukenberg
I, 907 F.3d at 246, 255-56. Some may not live to
age out at all.
To ensure consistency, fairness for litigants, and
judicial efficiency, the Court should require the
40
circuits to appropriately weigh the waste-andduplication factor, especially in cases like this.
B. The Court Should Confirm That Liteky
Governs Impartiality Analysis for
Reassignment.
The Court should also require uniformity in how
circuits approach judicial bias allegations by
clarifying that Liteky applies in the reassignment
context.
Liteky involved recusal. Liteky explains that,
when a “judge who presides at a trial” becomes
ill-disposed to the defendant, “the judge is not
thereby recusable for bias or prejudice, since his
knowledge and the opinion it produced were
properly and necessarily acquired in the course of
the proceedings, and are indeed sometimes (as in a
bench trial) necessary to completion of the judge’s
task.”
510 U.S. at 550-51.
Although a
predisposition that “springs from the facts adduced
or the events occurring at trial” may constitute
disqualifying bias when “so extreme as to display
clear inability to render fair judgment.” Id. at 551.
Some courts expressly apply Liteky to
reassignment. Cobell aptly applied it to conclude
the district judge there displayed disqualifying bias.
455 F.3d at 331-35; see also, e.g., Candelario Del
Moral, 699 F.3d at 106 (applying Liteky, denying
reassignment, and noting “we do not expect trial
judges to act like unemotional cyborgs of sci-fi
fame”); cf. App.805a (Higginson, J., dissenting) (“We
typically allow district court judges to make
statements that reflect familiarity with the
litigation.” (citing Liteky)).
41
Here, the Fifth Circuit did not apply Liteky in
assessing remarks allegedly indicating partiality.
See 25a-44a (citing Liteky only for proposition that
rulings rarely constitute bias). It did not consider
whether the remarks—mostly plucked from recent
transcripts—reflected
opinions
appropriately
developed in Judge Jack’s long experience with this
litigation. See id.; cf. Stukenberg I, 907 F.3d at 237
(noting, in 2018, “The district court was entitled to
worry about the State’s motivation to self-correct
and was justified in doubting that it would achieve
compliance independently.”). Nor did it consider
that “here, we are dealing with administration of
managerial devices at the remedies stage, not
prejudgment of a case that has just been filed on the
docket.” App.805a-806a (Higginson, J., dissenting).
Had the court properly applied Liteky, it should
not have found any disqualifying appearance of
impartiality. The record here is nowhere close to
that in Cobell. While the Cobell court considered
primarily the district judge’s extensive written
invective, much having “nothing to do with the issue
pending in the district court,” 455 F.3d at 332-34,
the panel here seized on decontextualized, scattered
oral remarks, App.25a-44a.
Additionally, the D.C. Circuit had unequivocally
reversed the Cobell judge’s rulings eight times in a
row.
455 F.3d at 330-31, 334-35.
Here, on
balance, Judge Jack has been affirmed more than
reversed, especially on this case’s major issues.
Stukenberg I and II affirmed her core liability
findings and most of her post-remand remedial
orders. Stukenberg I, 907 F.3d at 272, 287-88; see
Stukenberg II, 929 F.3d at 281. And defendants did
42
not even bother appealing multiple contempt
findings prior to those at issue here. Even in
Stukenberg III, the State challenged only one
provision of a contempt order, not underlying
contempt findings or sanctions. Compare M.D. v.
Abbott, 418 F.Supp.3d 169, 172-81,184 (S.D. Tex.
2019), with Stukenberg III, 977 F.3d at 482.
***
Had the Fifth Circuit properly applied Liteky or
properly weighted the waste and duplication caused
by reassignment, unnecessary delay in making
Texas’s system safe for thousands of children would
be avoided. The Court should direct the circuits to
consistently apply those factors in cases like this one
when considering the extraordinary step of removing
a diligent district judge.
CONCLUSION
For these reasons, petitioners request that the
Court grant the petition.
43
Respectfully submitted,
R. Paul Yetter
Counsel of Record
Christian J. Ward
Andrew T. Ingram
YETTER COLEMAN LLP
811 Main Street
Suite 4100
Houston, Texas 77002
(713) 632-8000
pyetter@yettercoleman.com
Samantha Bartosz
Stephen Dixon
CHILDREN’S RIGHTS
88 Pine Street
New York, New York 10005
Marcia Robinson Lowry
David Baloche
Laura Welikson
A BETTER CHILDHOOD, INC.
355 Lexington Avenue Floor 16
New York, New York 10017
Attorneys for Petitioners
APPENDIX
i
TABLE OF APPENDICES
Page
APPENDIX A — Opinion of the United States
Cou r t of Appea ls for the Fi f th Ci rcu it
(Oct. 11, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
APPENDIX B — Order of the United States
District Court for the Southern District of
Texas (Apr. 15, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . 48a
APPENDIX C — Order of the United States
Cou r t of Appeals for the Fi fth Ci rcuit
Denying Petition for Rehearing En Banc
and Dissenting Opinion of Judge Stephen A.
Higginson (Feb. 11, 2025) . . . . . . . . . . . . . . . . . . . . 769a
1a
Appendix
APPENDIX A — Opinion
of the A
United States Court of
Appeals for the Fifth Circuit (Oct. 11, 2024)
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 24-40248
M. D., BY NEXT FRIEND SARAH R.
STUKENBERG; D. I., BY NEXT FRIEND NANCY
G. POFAHL; Z. H., BY NEXT FRIEND CARLA B.
MORRISON; S. A., BY NEXT FRIEND JAVIER
SOLIS; A. M., BY NEXT FRIEND JENNIFER
TALLEY; J. S., BY NEXT FRIEND ANNA J.
RICKER; K. E., AS NEXT FRIEND JOHN W.
CLIFF, JR.; M. R., AS NEXT FRIEND BOBBIE
M. YOUNG; J. R., AS NEXT FRIEND BOBBIE
M. YOUNG; H. V., BY NEXT FRIEND ANNA
J. RICKER; P. O., AS NEXT FRIEND ANNA J.
RICKER; L. H., AS NEXT FRIEND ESTELA C.
VASQUEZ; C. H., BY NEXT FRIEND ESTELA
C. VASQUEZ; S. R., AS NEXT FRIEND BOBBIE
M. YOUNG; S. S., AS NEXT FRIEND ESTELA
C. VASQUEZ; A. R., AS NEXT FRIEND TOM
MCKENZIE, INDIVIDUALLY AND ON BEHALF
OF ALL OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellees,
versus
2a
Appendix A
GREG ABBOTT, IN HIS OFFICIAL CAPACITY
AS GOVERNOR OF THE STATE OF TEXAS;
CECILE ERWIN YOUNG, IN HER OFFICIAL
CAPACITY AS EXECUTIVE COMMISSIONER
OF THE HEALTH AND HUMAN SERVICES
COMMISSION OF THE STATE OF TEXAS;
STEPHANIE MUTH, IN HER OFFICIAL
CAPACITY AS COMMISSIONER OF
TEXAS DEPARTMENT OF FAMILY
AND PROTECTIVE SERVICES,
Defendants-Appellants.
Filed October 11, 2024
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:11-CV-84
Before Jones, Clement, and Wilson, Circuit Judges.
Edith H. Jones, Circuit Judge:
In their fourth appeal from court orders that awarded
permanent injunctive relief designed to overhaul the
Texas foster care system, the state defendants challenge
a contempt order and $100,000 per day ongoing fines. The
state raises numerous defenses against the sanctions,
including that the order constituted criminal contempt
lacking constitutional safeguards and that the fines violate
the Eleventh Amendment. The Defendants contend that
the state is in substantial compliance with the remedial
3a
Appendix A
decree. Finally, because of the judge’s intemperate conduct
on the bench, they seek her removal and reassignment of
the case to another district judge on remand. We VACATE
the contempt order, hold that the state has substantially
complied with Remedial Orders 3 and 10, and REMOVE
the district judge.
BACKGROUND
The underlying facts of this case are thoroughly
explained elsewhere. See M. D. by Stukenberg v. Abbott
(Stukenberg I), 907 F.3d 237, 243-47 (5th Cir. 2018).
Plaintiffs are a class of minor children who challenged the
constitutionality of the Texas foster care system under
the Due Process Clause of the Fourteenth Amendment.
Id. at 246. They filed suit in 2011. Id. After a bench trial,
the district court found in favor of Plaintiffs in 2015 and
awarded “expansive” injunctive relief. Id. at 271. For
reasons that need not be detailed, this court invalidated or
modified numerous aspects of the district court’s remedy
as not “narrowly tailor[ed].” See id. at 272 (quoting Daniels
Health Scis., L.L.C. v. Vascular Health Scis., L.L.C.,
710 F.3d 579, 586 (5th Cir. 2013)). In so doing, this court
emphasized that it was not suggesting that the district
court “took . . . lightly” the “intrusion” imposed on the
state by its “sweeping permanent injunction.” Id. at 271
& n.43. The case was remanded to the district court
to modify the remedial decree in light of the appellate
opinion. Id. at 288.
On remand, the district court modified the decree, but
that modification was appealed and reversed in part by
4a
Appendix A
this court. See M. D. by Stukenberg v. Abbott (Stukenberg
II), 929 F.3d 272, 275 (5th Cir. 2019). The district court’s
modified injunction was reversed because it “reinserted”
a provision similar to one rejected in Stukenberg I
and because it added three other provisions that were
overbroad or unjustified. Id. at 277-78, 280. In no uncertain
terms, the Stukenberg II court remanded the case “to
the district court to begin implementing, without further
changes, the modified injunction with the alterations we
have made.” Id. at 281.
But the district court further changed the injunction
on remand, resulting in another appeal. See M. D. by
Stukenberg v. Abbott (Stukenberg III), 977 F.3d 479 (5th
Cir. 2020). While this court did “not question the good faith
of the district judge” at that time, we reversed because
the court “ignore[d]” the mandate of Stukenberg II. Id.
at 482-83. This court again remanded, with the same
instruction to implement the modified injunction “without
further changes.” Id. at 483.
The district court has not further officially modified
the terms of the injunction since Stukenberg III. This
appeal instead involves a 427-page order issued by the
district court on April 15, 2024. The order found one of
the state defendants, Cecile Erwin Young, “in her official
capacity as Executive Commissioner of the Health and
Human Services Commission of the State of Texas,” in
contempt of Remedial Orders 3 and 10 of the injunction.
The district court imposed a $50,000 daily fine for each
order until the Health and Human Services Commission
(“HHSC”) leadership certifies that it is substantially
5a
Appendix A
compliant with the orders. The fines therefore total
$100,000 per day.
Remedial Order 3 requires the Department of Family
and Protective Services (“DFPS”) to “ensure that reported
allegations of child abuse and neglect involving children
in the [Permanent Managing Conservatorship (“PMC”)]
class are investigated; commenced and completed on
time consistent with the Court’s Order; and conducted
taking into account at all times the child’s safety needs.”
Remedial Order 10 requires, in relevant part, that the
DFPS “[w]ithin 60 days . . . complete Priority One and
Priority Two child abuse and neglect investigations
that involve children in the PMC class within 30 days of
intake.” Order 10 permits extensions of the deadline for
“good cause” when documented in the investigative record.
While the orders refer only to DFPS, the parties do not
dispute that they also apply to HHSC because certain
DFPS functions were transferred to HHSC in 2020 as
part of an agency-wide reorganization. Together, these
Orders essentially require Defendants to investigate
child abuse and neglect allegations in a timely manner
that accounts for the child’s safety.
The district court held Commissioner Young in
contempt because Provider Investigations (“PI”), a unit
within HHSC, failed to comply with these two Orders in
its handling of thirty-eight abuse and neglect allegations,
which involved 13 children. In an order dated April 15,
2024, the district court ordered Commissioner Young, in
relevant part, “to pay $50,000 per day until HHSC agency
leadership certifies that all [Provider Investigations
6a
Appendix A
(“PI”)] involving at least one PMC child closed from
December 4, 2023 until the date of the State’s certification,
are substantially compliant with the Remedial Order 3.”
Another $50,000 per day fine was imposed “until HHSC
agency leadership certifies that all open PI investigations
involving at least one PMC child are substantially
compliant with Remedial Order 10.” This court stayed the
contempt order on May 20, 2024. M. D. by Stukenberg v.
Abbott (Stay Order), No. 24-40248, 2024 U.S. App. LEXIS
12463, 2024 WL 2309123 (5th Cir. May 20, 2024).
STANDARD OF REVIEW
This court reviews the district court’s order for abuse
of discretion, but a “district court by definition abuses
its discretion when it makes an error of law.” Koon v.
United States, 518 U.S. 81, 100, 116 S. Ct. 2035, 2047, 135
L. Ed. 2d 392 (1996); see also Martin v. Trinity Indust.
Inc., 959 F.2d 45, 46 (5th Cir. 1992). The issues here are
purely legal.
DISCUSSION
Defendants contend on appeal that the district
court imposed a criminal contempt sanction without due
process and ordered retrospective fines in violation of
state sovereign immunity. Further, they assert that they
have established “substantial compliance” with Remedial
Orders 3 and 10. These dispositive issues are addressed
first, followed by Defendants’ request to remove the
district judge and reassign the case.
7a
Appendix A
A. Type of Contempt
When granting the state’s motion for a stay pending
appeal, we concluded that the state was likely to prevail
on the merits of their contention that the district court’s
contempt order is in fact a criminal contempt. Stay Order,
2024 U.S. App. LEXIS 12463, 2024 WL 2309123, at *3. As
such, the contempt order was issued devoid of procedural
protections including trial by jury, and the fines were
intended to punish rather than compensate the movants.
Having now studied the parties’ briefs on appeal, we are
convinced of that conclusion. Here, it suffices to repeat a
portion of the opinion approving a stay pending appeal,
followed by comments on the parties’ brief additional
arguments.
There are two types of contempt—criminal
and civil. See Int’l Union, United Mine Workers
of Am. v. Bagwell, 512 U.S. 821, 826-27, 114
S. Ct. 2552, 2556-57, 129 L. Ed. 2d 642 (1994).
“Criminal contempt is a crime in the ordinary
sense, and criminal penalties may not be
imposed on someone who has not been afforded
the protections that the Constitution requires
of such criminal proceedings.” Id. at 826, 114
S. Ct. at 2556 (citations and quotation marks
omitted). “In contrast, civil contempt sanctions
. . . may be imposed in an ordinary civil
proceeding upon notice and an opportunity to
be heard.” Id. at 827, 114 S. Ct. at 2557. For civil
contempt sanctions, “[n]either a jury trial nor
proof beyond a reasonable doubt is required.”
8a
Appendix A
Id. The contempt power of courts, as Bagwell
explained, is rooted in concepts of necessity and
arbitrariness. Necessity requires that courts
be able to enforce their judgments and orders;
arbitrariness in imposing sanctions is a threat
endemic to those who hold power that must be
confined. Id. at 831-34, 114 S. Ct. at 2559-61.
Where a contempt order is deemed criminal,
arbitrariness is cabined by the requirements
of a criminal proceeding. Id. at 834, 114 S. Ct.
at 2561.
Whether a contempt order is civil or
criminal turns on the “character and purpose”
of the sanction involved. Gompers v. Bucks
Stove & Range Co., 221 U.S. 418, 441, 31 S. Ct.
492, 498, 55 L. Ed. 797 (1911). When, as here,
the sanction at issue is a non-compensatory
fine, 5 the sanction is civil if it is “remedial” and
affords the Defendants the ability “to purge
the contempt . . . by committing an affirmative
act,” but criminal if it is “punitive” and
5. As the name suggests, a compensatory fine “compensate[s]
the complainant for losses sustained” because of the contemnor’s
conduct and must be “based upon evidence of the complainant’s
actual loss.” United States v. United Mine Workers of Am., 330
U.S. 258, 303, 67 S. Ct. 677, 701, 91 L. Ed. 884 (1947). The contempt
sanction at issue here is clearly non-compensatory, as the district
court made no “attempt to calibrate the fines to damages caused
by [Defendants’] contumacious activities” nor does the April 15
Order “indicate that the fines were to compensate the complainant
for losses sustained.” Bagwell, 512 U.S. at 834, 114 S. Ct. at 2561
(quotation marks omitted). The parties do not argue otherwise.
9a
Appendix A
“imposed retrospectively for a completed act of
disobedience, such that the [Defendants] cannot
avoid or abbreviate the [punishment] through
later compliance.” Bagwell, 512 U.S. at 828-29,
114 S. Ct. at 2558 (citation and quotation marks
omitted). Critically, “a contempt [sanction] is
considered civil only when the punishment is
wholly remedial.” In re Stewart, 571 F.2d 958,
964 n.4 (5th Cir. 1978) (emphasis added). “When
the punishment is partly remedial and partly
punitive, ‘the criminal feature of the order is
dominant and fixes its character for purposes
of review.’” Id. (quoting Nye v. United States,
313 U.S. 33, 42, 61 S. Ct. 810, 813, 85 L. Ed.
1172 (1941)).
T he Pl a i nt i f f s’ a r g u ment t h at t he
Defendants can purge the contempt entirely
simply by certifying substantial compliance
falls short because much of the April 15 Order
squarely focuses on whether the Defendants’
past conduct was in compliance with the
Remedial Orders 3 and 10. The April 15 Order
requires the Defendants to pay $100,000 per
day until they certify that certain investigations
“closed from December 4, 2023 until the date
of the State’s certification, are substantially
compliant with the Remedial Order 3” and
that other “open” investigations” comply
with Remedial Order 10. The Defendants can
do nothing to render any already-untimely
investigations timely. The court’s order,
10a
Appendix A
after all, specifies investigations that were
closed months before April 15 and “open”
investigations that may have become untimely
vis-à-vis Remedial Order 10 before April 15.
Moreover, the Defendants cannot complete open
investigations or correct past investigations
that failed to adequately consider the safety of
children overnight, but that is exactly what the
court’s order requires by imposing per diem
fines that begin immediately. This leaves the
Defendants no realistic opportunity to purge
the contempt, and reveals that the April 15
Order is at least partially intended to punish
Defendants’ “completed acts of disobedience,”
which renders the sanction criminal.6
6. “[T]he imposition only of serious criminal contempt fines
triggers the right to jury trial” and, therefore, “[p]etty contempt
. . . may be tried without a jury.” Bagwell, 512 U.S. at 837 n.5, 114
S. Ct. at 2562 n.5. But in Bagwell, the Court did “not answer . . .
the difficult question where the line between petty and serious
contempt fines should be drawn” because the $52 million fine
imposed in that case “unquestionably [was] a serious contempt
sanction.” Id. Were the fines to accrue unabated between April
15 and the June 26 compliance hearing, the Defendants would be
on the hook for $7.2 million. Our sister circuits have held that far
lesser fines require a district court to afford the protections used
in the criminal process. See Jake’s, Ltd. v. City of Coates, 356 F.3d
896, 902-04 (8th Cir. 2004) ($68,000, based on a $1,000-per-day
penalty); Mackler Prods., Inc. v. Cohen, 146 F.3d 126, 128-30 (2d
Cir. 1998) ($10,000); see also In re John Richards Homes Bldg.
Co., 552 F. App’x 401, 416 (6th Cir. 2013) (“We need not decide at
this juncture what defines a ‘serious’ noncompensatory award
of punitive damages because the $2.8 million awarded below is
serious under any definition.”). For these reasons, the fine imposed
in the April 15 Order appears to rise to the level of “serious,” such
that the Defendants are entitled to a jury trial.
11a
Appendix A
This conclusion is buttressed by the fact that
the challenged violations of the remedial orders
occurred out-of-court and involved a “complex”
injunction. As Bagwell stated, “[c]ontempts
involving out-of-court disobedience to complex
injunctions often require elaborate and reliable
factfinding” and, therefore, certain “criminal
procedural protections” are required “to
protect the due process rights of parties and
prevent the arbitrary exercise of judicial
power.” 512 U.S. at 833-34, 114 S. Ct. at 2560-61.
The Plaintiffs insist that the April 15 Order
does not involve a “complex” injunction because
Defendants were sanctioned for violating only
two of the sixty remedial orders. The Plaintiffs’
argument misses the forest for the trees. It
overlooks that the district court’s injunction
contained more than sixty remedial orders. In
characterizing an “injunction that prescribes a
detailed code of conduct,” it is more appropriate
to assess the entire injunction as opposed to
taking a piecemeal approach. See id. at 835-36,
114 S. Ct. at 2561 (“In a case like this involving
an injunction that prescribes a detailed code of
conduct, it is more appropriate to identify the
character of the entire decree.”).
But even if we were to circumscribe our
assessment of the injunction to Remedial
Orders 3 and 10, we would still conclude that
the injunction is complex. These remedial
12a
Appendix A
orders require an agency, which as of 2018
was “responsible for roughly 29,000 children,” 7
to conduct investigations of child abuse and
neglect in a timely manner while “taking into
account at all times the child’s safety needs.”
That is no small task, as demonstrated by the
fact that the order explaining the Defendants’
noncompliance with these remedial orders
is voluminous. And even considering just the
two Remedial Orders at issue, the Defendants
conducted thousands of investigations during
the period covered by the court’s hearing,
and the monitors found noncompliance in just
over three dozen instances, involving about 13
children. We do not minimize the Defendants’
shortcomings in these matters, but violations
committed by the Defendants on a very small
scale in relation to the magnitude of the
institution, the prescriptive orders, and the
overall numbers of children can be better put
in perspective by a jury.
If further analysis were needed, the
contrast between the contempt order in
this case and that in Bagwell, which the
Supreme Court unanimously held criminal, is
instructive. The “complex” labor injunction in
that case prohibited the union, inter alia, from
obstructing ingress and egress to the mining
company facilities, throwing objects at and
7. Stukenberg I, 907 F.3d at 243.
13a
Appendix A
physically threatening company employees,
placing “jackrocks” on roads to damage
vehicles, and exceeding certain numbers of
picketers. Id. at 823, 114 S. Ct. at 2555. This
doesn’t seem very “complex” when placed
against the wide-ranging scope of remedial
orders that have reorganized the entire fostercare system in Texas to the tune of the state’s
expenditure of over $100 million in compliance
costs to date (plus over $55 million to monitors).
In Bagwell, the Court paid little heed to
the trial court’s attempt to characterize its
schedule of fines as “prospective” only, and the
Court noted the “elusive distinctions” between
civil and criminal contempt fines. Id. at 830, 836,
114 S. Ct. at 2559, 2561-62. Here, regardless of
the district court’s characterization, it is almost
impossible to escape the conclusion that the
fines imposed by the April 15 Order are at least
partially retrospective in nature.
Id. at *2-4.
In their brief to this court, the Plaintiffs additionally
assert that the contempt order is civil, not criminal,
because its goal is to coerce the state to abide by the
court’s remedial decree going forward. Accordingly,
the fines may be “suspended” when the defendant
“substantially complies” with Remedial Orders 3 and 10.
Plaintiffs contend that “substantial compliance” means
merely “taking all reasonable means” to comply with
14a
Appendix A
the orders covering investigations involving a PMC child
within 60 days.
There are several problems with this optimistic
reading of the contempt order. First, although the district
court defined “substantial compliance” to refer to “all
reasonable steps” in an early definitional section of its
427-page order, the contempt order does not specifically
cross-reference that definition and, in fact, supersedes
it. See M. D. by Stukenberg v. Abbott (Contempt Order),
No. 2:11-CV-00084, 730 F. Supp. 3d 354, 2024 U.S. Dist.
LEXIS 93794, 2024 WL 2317348, at *12 (S.D. Tex. April
15, 2024). The court requires a “complete submission” by
the state concerning substantial compliance with Remedial
Order 3 and the list “of all PI investigations involving at
least one PMC child closed between December 4, 2023
and the date of the State’s certification.” 2024 U.S. Dist.
LEXIS 93794, [WL] at *228 (emphases added). The court
also requires a detailed list of all open PI investigations
involving at least one PMC child to fulfill Remedial Order
10, the 30-day investigation order, which must be produced
to the court Monitors, and also a “complete submission of
the foregoing [verification] by the State.” Id. (emphases
added).
Second, in addition to its bureaucratic formulation
of substantial compliance with each remedial order, the
court warns that its Monitors “will conduct a case record
review of the cases identified [for Remedial Order 3]” and
“will review the State’s [Remedial Order 10] submission
and report their findings to the Court.” Id. Only under
these circumstances will the court “suspend” the fines.
15a
Appendix A
Further, in a footnote the court advises, “[t]his in no way
waives the Court’s retention of jurisdiction for a period
of three years after full compliance as certified by the
Monitors.” 2024 U.S. Dist. LEXIS 93794, [WL] at *228
n.305. This language, all told, looks more like conditions
of “supervised release” for parolees than adjudication of
substantial compliance.
Third, “suspension” of fines is not the same as
“erasure” or “removal” or “cancellation.” Suspension
connotes temporary or conditional relief from the fines,
without cancelling them. If that is what the court meant,
then the state has no assurance that the fines will not be
revived when the court espies some additional default in
the state’s obeying the two remedial orders or complying
precisely with its dictated contempt order compliance
conditions.
Not only are the terms of the contempt order at
odds with a rational path to substantial compliance, but
the Plaintiffs’ own conception of substantial compliance
is entirely hypothetical. Plaintiffs assert that the state
can substantially comply by documenting good cause for
extending PI investigations that were already out of date
when the court issued its April 15 order and by quickly
finishing its delayed investigations. But, as just noted, the
court ordered substantially more than those basic tasks,
and ultimate “suspension” of the fines seems to lie in the
court’s subjective notion of compliance.
The Plaintiffs alternately contend that even if the
district court’s order represents criminal contempt, this
16a
Appendix A
court should affirm its findings and remand for a nonretrospective, compensatory remedy appropriate to civil
contempt. Their theory is based largely on the state’s
failure to challenge the factfindings of noncompliance.
This argument, however, misses the point of the cases.
In a criminal contempt proceeding, the state would have
been entitled to a jury trial and conviction by proof beyond
a reasonable doubt. See Bagwell, 512 U.S. at 826-34, 114
S. Ct. at 2556-61. As earlier explained, the trappings
of criminal procedure are constitutionally required to
protect a party from judicial arbitrariness. Consequently,
this court’s practice has been to reverse invalid contempt
orders. See, e.g., In re Stewart, 647 F.3d at 558; Crowe v.
Smith, 151 F.3d 217, 240-41 (5th Cir. 1998).1 In addition
to this adverse precedent, further doubt is cast on any
potential remand by the state’s argument that the court’s
findings were legally deficient because they were based
on violative actions not readily inferable from the terms
of Remedial Orders 3 and 10. A party may only be held
liable for contempt of a court order’s specific, “express or
clearly inferrable obligation[s].” See Hornbeck Offshore
Servs., L.L.C. v. Salazar, 713 F.3d 787, 793 (5th Cir.
2013). Remand would not cure an inherent legal error
by the district court. And even more potently, the state
compellingly defends its substantial compliance with these
Remedial Orders. In sum, we may not treat this criminal
contempt order and sanctions as quasi-civil and amenable
to remand.
1. Plaintiffs’ reference to Lamar Financial Corp. v. Adams
is inapposite because this court reversed one invalid criminal
contempt sanction in that case while affirming a valid civil
contempt sanction. 918 F.2d 564, 567-68 (5th Cir. 1990).
17a
Appendix A
B. State Sovereign Immunity
The contempt fines are also unconstitutional in
violation of state sovereign immunity. “[W]hen a plaintiff
sues a state official alleging a violation of federal law,
the federal court may award an injunction that governs
the official’s future conduct, but not one that awards
retroactive monetary relief.” Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 102-03, 104 S. Ct. 900,
909, 79 L. Ed. 2d 67 (1984) (citing Edelman v. Jordan, 415
U.S. 651, 666-67, 94 S. Ct. 1347, 1357-58, 39 L. Ed. 2d 662
(1974)). Determining whether a contempt fine is punitive
dictates whether it violates state sovereign immunity.
Both analyses collapse around the question of whether the
punishment’s purpose is retrospective or instead aimed
at coercing a change in future conduct.
The Court explicitly permitted the imprisonment of
a state official for civil contempt in Ex parte Young, 209
U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908). There, the
lower court ordered that a state attorney general “should
stand committed to the custody of the marshal until” he
obeyed an earlier court order. Id. at 126, 28 S. Ct. at 443.
That is a civil contempt sanction because it was coercive,
aimed at changing the official’s conduct and allowing him
an opportunity “to purge the contempt . . . by committing
an affirmative act.” Bagwell, 512 U.S. at 828, 114 S. Ct. at
2558. The Court has repeatedly aligned its state sovereign
immunity jurisprudence around this distinction. See, e.g.,
Milliken v. Bradley, 433 U.S. 267, 290, 97 S. Ct. 2749,
2762, 53 L. Ed. 2d 745 (1977) (“We therefore hold that
such prospective relief is not barred by the Eleventh
18a
Appendix A
Amendment.”); Quern v. Jordan, 440 U.S. 332, 337, 99
S. Ct. 1139, 1143, 59 L. Ed. 2d 358 (1979) (“The distinction
between that relief permissible under the doctrine of
Ex Parte Young and that found barred in Edelman was
the difference between prospective relief on one hand
and retrospective relief on the other.”); see also Hutto
v. Finney, 437 U.S. 678, 690-92 & n.17, 98 S. Ct. 2565,
2573-74, 57 L. Ed. 2d 522 & n.17 (1978). Criminal contempt
sanctions like those at issue here punish the state’s past
malfeasance in violation of the Eleventh Amendment.
The federalism concerns do not end there. In the
contempt order, the district court “direct[ed] the Clerk
of the Court to segregate and preserve all funds paid
in accordance with this Order for the benefit and use of
PMC foster care children, to be determined by future
order of the Court.” 2024 U.S. Dist. LEXIS 93794, 2024
WL 2317348, at *228. Relatedly, because Plaintiffs’
attorneys are representing their clients pro bono, they
have given control of the attorney’s fees they would have
received to the district court, to be placed in trust for the
children. This use of the attorney’s fees and contempt
fines is reminiscent of the invocation of cy pres in the
class action settlement context, in which district judges
distributed leftover settlement funds to charities whose
purpose purportedly related to the original lawsuit. See,
e.g., Wilson v. Sw. Airlines, Inc., 880 F.2d 807 (5th Cir.
1989). These arrangements raise constitutional concerns
because they “transform[] ‘the judicial process from a
bilateral private rights adjudicatory model into a trilateral
process.’” Klier v. Elf Atochem N. Am., Inc., 658 F.3d
468, 481 (5th Cir. 2011) (Jones, C.J., concurring) (quoting
19a
Appendix A
Martin H. Redish et al., Cy Pres Relief and the Modern
Class Action: A Normative and Empirical Analysis, 62
Fla. L. Rev. 617, 641 (2010)). Federalism concerns are
also heightened here, where a federal district court is
obtaining these funds not from the surplus of a class action
settlement fund, but rather from the attorney’s fees and
contempt fines it chooses to excise from the state. As in
Klier, “these questions are neither briefed nor presented
for review here,” but they warrant this aside considering
their exacerbation of the state sovereign immunity and
Due Process violations of the district court’s contempt
fines. See id. (Jones, C.J., concurring).
C. Substantial Compliance
If Plaintiffs had succeeded in showing contempt, 2 the
burden would shift to Defendants to show “substantial
compliance” with the Remedial Orders. Substantial
compliance is an absolute defense to civil contempt.
United States v. Barnett, 346 F.2d 99, 100 (5th Cir. 1965).
The court also considers good faith, or lack thereof.
See Whitfield v. Pennington, 832 F.2d 909, 914-15 (5th
Cir. 1987) (describing a party’s characterizations of its
2. The state also contends that the court’s findings on
contempt were not supported by “clear and convincing evidence”
and that the terms of Remedial Orders 3 and 10 are too vague
to support the district court’s findings. We need not parse every
detail of the evidence in evaluating those other arguments in
support of reversal because this court holds that the district
court imposed a criminal contempt sanction without the requisite
criminal procedural protections and in violation of state sovereign
immunity.
20a
Appendix A
compliance attempts as “misleading”); see also Anderson
v. Sch. Bd. of Madison Cnty., 517 F.3d 292, 297 (5th Cir.
2008) (relying on “good faith” efforts to comply “to the
extent practicable” in reviewing a district court’s grant
of complete relief from an order under a more stringent
standard). The state endeavored in good faith to comply
with the court’s orders. For example, it spent over a
hundred million dollars, overhauled internal policies,
and lobbied for additional assistance from the Texas
legislature.
The district court’s contempt order never found
bad faith. Whether compliance was done in good faith
or bad faith is relevant to whether it was substantial. 3
As the district court recognized, the “reasonableness
of the alleged contemnor’s attempts to comply” is the
“touchstone” of a substantial compliance defense.
Contempt Order, 2024 U.S. Dist. LEXIS 93794, 2024
WL 2317348, at *12-13 (collecting cases). And whether
compliance was reasonable and substantial turns at least
in part on whether Defendants were acting in good faith or
bad faith. Defendants’ good faith bolsters their substantial
compliance defense.
If possible, comparing the extent of a party’s
compliance with the extent of its noncompliance is
persuasive. U.S. Steel Corp. v. United Mine Workers of
3. Plaintiffs claim that Defendants did not sufficiently brief
a good faith defense to have it considered on appeal. Good faith,
however, is not a specific “defense” to contempt but is among the
factors a court may consider in regard to substantial compliance.
That point is not waived.
21a
Appendix A
Am., Dist. 20, 598 F.2d 363, 368 (5th Cir. 1979) (holding
that after a district court ordered a union to notify its
striking workers of a court order, the union’s failure to
attempt to notify three quarters of those workers made
compliance not substantial). That approach works well
in this case because whether compliance was substantial
turns in large part on how many subject investigations
were compliant and how many were not.
The parties dispute whether this court should
consider HHSC’s noncompliance by itself, or compare
it with DFPS’s compliance. Plaintiffs argue for the
former approach because the district court only found
noncompliance in PI investigations for which HHSC
is exclusively responsible. From that vantage point,
Plaintiffs observe, the monitors found that “55%” of
investigations conducted by HHSC in a four-month period
concerning PMC children were deficient, and “of those,
100% involved violations of Remedial Order 3, and 82%
involved violations of Remedial Order 10.”4 Plaintiffs’
perspective ignores the text of the Remedial Orders and
the history of these agencies. Both orders cover more
than just PI investigations, and both orders referenced
only DFPS by name. That is because DFPS handled PI
investigations initially, but the responsibility for handling
them was moved to HHSC in 2020, five years after the
district court first enjoined the state defendants.
Under the remedial orders themselves and the
original agency structure, a substantial compliance
4. The monitors reviewed 69 investigations done during that
period in 2023 in depth.
22a
Appendix A
analysis must compare the overall compliance of DFPS
with overall noncompliance, as the statewide agency was
responsible for all child abuse and neglect investigations
under the remedial decree. Limiting the comparison
at this juncture to HHSC alone, when the agency’s
restructuring was accomplished to improve the policies
and practices condemned by the district court, would
be tantamount to punishment. “[E]quity looks beyond
superficial distinctions such as these.” Freedom From
Religion Found., Inc. v. Abbott, 58 F.4th 824, 837 (5th
Cir. 2023). Rather, it “looks to the substance and not
merely to the form.” Young v. Higbee Co., 324 U.S. 204,
209, 65 S. Ct. 594, 597, 89 L. Ed. 890 (1945). And it
would be inappropriate under the text of the orders to
examine substantial compliance only with respect to the
PI investigations when the orders are comprehensive of
the plaintiff class.
Together, DFPS and HHSC conduct thousands
of investigations that are subject to Orders 3 and 10.
The district court’s contempt order focused on 64 PI
investigations with dispositions of “Unconfirmed” or
“Inconclusive” between January 1, 2023, and April
30, 2023, plus five earlier PI investigations concerning
related conduct involving the same PMC children. The
monitors disagreed with the disposition of 38 of those 69
investigations, but that disagreement does not even include
the 37 other investigations in the reviewed time period in
which allegations were confirmed. Regardless, these are
all just a drop in the bucket of systemwide investigations
subject to Orders 3 and 10. Of the 954 investigations closed
in a period spanning 2021 and 2022 that the monitors
23a
Appendix A
reviewed for Order 3 compliance, the monitors agreed
with the disposition of 95% of the investigations.
Moreover, in reviewing over 1,500 investigations
opened during a mostly overlapping 2021 through 2022
period, the monitors found 73% compliance with Order
10. In a 2022 through 2023 period, the monitors reviewed
over 1,600 investigations and found 84% compliance. There
was significant improvement from 2019, when the monitors
found that only 21% of relevant investigations complied
with Order 10. And these results assume that the monitors
did not overestimate noncompliance if some documentation
was unclear. The district court therefore erred in not
finding that Defendants substantially complied with
Orders 3 and 10.
E. Reassignment
The final issue in this appeal is Defendants’ request
that this case be reassigned to a different district judge
on remand. See 28 U.S.C. §§ 455, 2106. Reassignment “is
an extraordinary power and should rarely be invoked.”
United States v. Winters, 174 F.3d 478, 487 (5th Cir. 1999).
We have carefully considered the record and the applicable
law before concluding that this case must be reassigned
to another judge. As this court originally found, the state
of Texas had seriously neglected the management of its
foster care system, resulting in constitutional violations
against vulnerable children that this court affirmed.
Nearly a decade has passed since the district court entered
its first judgment ordering remedial relief. The state has
been under constant, intrusive, and costly surveillance by
24a
Appendix A
a team of monitors and the district court ever since. The
state asserts, without contradiction, that it has spent $150
million attempting to comply with the court’s remedial
decrees and another $60 million on the monitors. But
not only has the district court clearly indicated an intent
to continue oversight well into the future, but as will be
seen, this contempt order seems a harbinger of even more
drastic district court micromanagement. Against this
background we have had to decide the difficult issue of
removal.
This court “has not decided which of two tests should
be used to decide whether to reassign a case.” Id. Under a
more formal approach, this court considers three factors:
(1) “whether the original judge would reasonably be
expected upon remand to have substantial difficulty” in
putting aside her previously expressed but inappropriate
views, (2) “whether reassignment is advisable to preserve
the appearance of justice,” and (3) “whether reassignment
would entail waste and duplication out of proportion to any
gain in preserving the appearance of fairness.” Johnson
v. Sawyer, 120 F.3d 1307, 1333 (5th Cir. 1997) (citations
omitted).
This court also asks the more straightforward
question “whether the judge’s role might reasonably
cause an objective observer to question [the judge’s]
impartiality.” Miller v. Sam Houston St. Univ., 986 F.3d
880, 893 (5th Cir. 2021) (alteration in original) (citations
and quotations omitted). This means that reassignment
can be appropriate “not just when actual bias or prejudice
exists.” Johnson, 120 F.3d at 1333. Because “the second
25a
Appendix A
factor of the first test is virtually identical” to this simpler
approach, the “result of each test has always been the
same.” United States v. Khan, 997 F.3d 242, 249 n.4 (5th
Cir. 2021). This court analyzes the two tests together
because of this “redundancy.” Id.
Beginning with the first factor, a judge might
“reasonably be expected upon remand to have substantial
difficulty” putting aside previously expressed but
inappropriate views when there has been a repeated
failure to follow the mandate of an appellate court. See
In re DaimlerChrysler Corp., 294 F.3d 697, 700 (5th Cir.
2002) (quoting Simon v. City of Clute, 825 F.2d 940, 943-44
(5th Cir. 1987)). Doing so can make “clear that [the judge]
is fixed in his view” of a case. Khan, 997 F.3d at 249. But
“‘judicial rulings alone almost never constitute a valid
basis’ for finding bias or partiality.” Test Masters Educ.
Servs., Inc. v. Singh, 428 F.3d 559, 581 (5th Cir. 2005)
(quoting Liteky v. United States, 510 U.S. 540, 555, 114
S. Ct. 1147, 1157, 127 L. Ed. 2d 474 (1994)). As discussed
at the outset, this is this court’s fourth review of this case.
In Stukenberg II and Stukenberg III, this court reversed
the district court following the district judge’s apparent
disregard for this court’s instructions. 929 F.3d at 276;
977 F.3d at 482. This court described the district judge as
“well-intentioned” and as acting in “good faith” in each of
those cases, respectively. 929 F.3d at 278; 977 F.3d 483.
Although bad faith would be highly indicative of a need
to reassign this case, good faith is no safe harbor. In re
DaimlerChrysler Corp., 294 F.3d at 701 (“[N]otwithstanding
all good faith efforts on the part of the district court, it
26a
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would be exceedingly difficult for the district court to
regain some impartiality in this case.”). And the district
judge’s statements since Stukenberg III strongly suggest
that she has become “fixed in [her] view.” Khan, 997 F.3d
at 249. For example, the Stukenberg II court invalidated
as overbroad the district court’s requirement that state
create an integrated computer system. 929 F.3d at 279.
But at a later hearing, the district judge remarked: “I
know the Fifth Circuit prohibited me from talking about
a new computer system, but I’m going to talk about it
anyway. . . .” At the contempt hearing underlying this
appeal, the district judge again raised this matter:
We’ve asked over and over again. I even asked
[Defendants] if you could find somebody—
if somebody in the community could find
somebody to do—even though the Fifth Circuit
and I—and I respect their wisdom on this. The
Fifth Circuit overruled or vacated the order to
do a unified computer system. There may be
somebody out there that could donate the money
to do that for the sake of the children. And I
asked for a response . . . if somebody could find
that, could you-all respond if you would accept
it. No response.
And even after Stukenberg III, which firmly ordered
the judge not to further modify the remedial decree, she
imposed extraneous orders on the state to (a) provide
information about children’s Covid vaccine refusals; (b)
expand children’s mental health care services; and (c)
27a
Appendix A
produce documents not relevant to the Remedial Orders
under threat of contempt for noncompliance.
Our comprehensive review of the district judge’s
conduct throughout the three-day contempt hearing
in December 2023 that brought this issue to fruition
repeatedly exhibits a highly antagonistic demeanor
toward the Defendants. The district court, to begin
with, urged and instigated the Plaintiffs for several
months to seek contempt. During the hearing, the judge
repeatedly questioned the Defendants’ unwillingness to
exceed the requirements of the remedial decree: “I told
the State that this is not anything to do with the Court,
but they have resources in these monitors . . . that they
can use. . . . Nothing. Nothing.” And toward the end of
the hearing: “[I]t doesn’t hurt to go over and above, not
just the minimum standards, but over and above.” And
relatively soon thereafter: “I’m thankful to the public
attention that the press has shown this. Sometimes it’s
just very important to call this out to the public, and that’s
the organ to do that.” The court’s interest in whether
the state’s actions exceeded the scope of its remedial
injunctive orders suggests the court has a “substantial
difficulty” moving past the previously invalidated,
overbroad remedial orders.
The district judge also showed signs of being dug-in
on her interpretation of the remedial decree during the
contempt hearing:
THE COURT: “And you do realize that to get
off monitoring you have to completely, fully
28a
Appendix A
comply. It’s not substantial compliance. Did you
know that?”
COUNSEL: “Your Honor, our view is that the
Fifth Circuit has held a substantial compliance
with court orders—”
THE COURT: “Let me explain to you one
more time. This order that was affirmed said
full compliance. . . . You-all tried to appeal
that and could not do it. 5 Did you know that?
Were you aware of that history? . . . And that
Fifth Circuit, as Ms. Ho knows her husband6
issued very clearly that we cannot go outside
the mandate.”
The district judge continued this line of commentary about
appellate review in this case:
And I know y’all are waiting for me—and Ms.
Ho—and I don’t know why, waiting for me to
issue some order that you think you can take
immediately up to the Fifth Circuit and get rid
of heightened monitoring or get rid of this or
get rid of that. . . . I know you have children,
Ms. Ho, and you care about them, too, like I
5. This court declined to reach the issue in Stukenberg II
because the state waived it. 929 F.3d 272, 281 (5th Cir. 2019).
6. Defense counsel’s husband is a judge of this court,
who authored Stukenberg III before his wife was retained by
Defendants.
29a
Appendix A
care about these children. So please, please,
let’s work together.
Later in the contempt hearing, amid further arguments
by counsel about the interpretation of Remedial Order 3
in particular, the judge stated:
This is the problem we have. You got it? [Counsel
are] trying to parse out—and it’s the most
incredible thing instead of just saying, ‘We’ve
got some problems. We need to fix them,’ we’ve
got to parse out this—ridiculous, ridiculous
things. And it’s so difficult to have—over the
years the State has a shifting sands of positions
on how to address these things, depending on
new counsel, ex-counsel, new commissioners.
And it’s almost impossible to follow, and
nothing good comes of it for the children, and
it’s incredibly frustrating.
See Johnson, 120 F.3d at 1335 (reassigning after the
judge, among other things, touted that he had the “job and
responsibility of determining what the rule of law is and
how to interpret it,” said there was “no basis” for witnesses
to tell him otherwise, and chastised the witnesses with
marked sarcasm).
These statements not only speak to the first factor, but
they also raise serious questions concerning the second
factor, “the appearance of justice.” Johnson, 120 F.3d at
1333. A “high degree of antagonism” can be cause for
reassignment under this factor, but it requires “more
30a
Appendix A
than intemperate remarks.” Johnson, 120 F.3d at 1335
(first quote); United States v. Stanford, 883 F.3d 500,
516 (5th Cir. 2018) (second quote). A lengthy exchange
highlighting these concerns occurred at the beginning
of the contempt hearing, when the district judge asked
numerous questions about Defendants’ objections to the
accuracy of the monitors’ findings.7 Defendants claimed
they “were not noticed that these objections would be ruled
on” at the hearing, to which the district judge replied:
“Listen, it doesn’t matter that you weren’t noticed.”
The judge’s mode of questioning about these
objections is inappropriate. See Johnson, 120 F.3d at
1334 (reassigning in part because although “the district
judge was justifiably concerned about truthfulness by
the witnesses. . . . we question the extent, and manner by
which, he pressed that concern”). Close to the beginning
of this discussion, early on the first day of the contempt
hearing, the district judge stated: “I’m disappointed . . .
that the Defendants are not actually reading the report
and checking before they file these kind of objections.”
This accusation came before counsel had an opportunity
to explain those objections at the hearing. The court’s
aversion to Defendants’ objections grew clearer as the
discussion turned to the monitors’ classification of a
7. The objections discussed during this part of the contempt
hearing included the monitors’ classification of certain foster care
facilities as adult or non-adult facilities, the monitors’ findings
in individual complaints of misconduct, the monitors’ use of a
supposedly state-provided seven-to-one caseworker-to-supervisor
ratio in their reports, and the total number of closed cases that
the monitors reviewed in composing their reports.
31a
Appendix A
certain facility: “And then you-all actually had the nerve
to object that that was not an adult foster care facility?”
The judge later remarked on the same subject: “I don’t
want to waste everybody’s time with addressing these
ridiculous, spurious objections. . . . You have my class
of children rooming with adult foster care people. And
that’s the bottom line.” And to another objection, the court
commented: “[T]his is stunning. Look at this one.”
The judge’s reaction to one objection about the
appropriate scope for evaluating Defendants’ substantial
compliance defense is particularly notable, as that is one
ground on which this court now reverses: “Oh, no, I’m
not going to pay any attention to that. That’s like—that’s
like those little kids don’t matter because it’s—they’ve
substantially complied, because most investigations in
DFPS and most investigations elsewhere are just fine.” See
Latiolais v. Cravins, 574 F. App’x 429, 437 (5th Cir. 2014)
(reassigning because “it would be exceedingly difficult for
[the judge] to put aside the views he expressed about the
evidence against [Defendant] that we deem substantial.
For example . . . he expressed the intemperate view:
‘There is no way on God’s green earth that there has been
any testimony that should hold [Defendant] into this case.
There was none. It was—it is not there. It’s not there. It’s
clearly not there. I heard no evidence whatsoever.’”).
Along with these comments about the objections,
the district judge accused Defense counsel of Rule 11
violations: “You know what the Rule 11 requirements
are. . . . [T]hat may be a subject for another hearing.”
The judge continued: “So perhaps you did not properly
32a
Appendix A
when you signed your name to this objection to [sic] make
inquiries or read the prior records or the prior Monitors’
reports. I think you get where we’re going now, [counsel].
Is it sinking in? Slowly?”
On this topic and others, the district judge often
criticized the State’s litigation strategy and corresponding
expenses. For example:
Prior objections from the state were really
spelling, name—name corrections, typos. Now
we’re talking about substantive objections to
actually information provided to the Monitors
word for word by the State. And that, of course,
runs up billable hours for your firm, incredible
scores of hours for the Monitors to rebut these
many times spurious objections, all money that
could go to the children.
The judge later returned to the subject of billable hours:
“I’m just saying that this is such a waste of time for your
billable hours, for the Monitors’ billable time. And I get
paid no matter what. It’s no waste of time. I’m here for
you-all, all day, all night, whatever.” And again, still in the
context of these objections:
And let me say something else while I’m
jumping on you. . . . But at some point I have to
step in and say let’s not do this. We don’t need
to argue about every single thing, especially
unnecessarily taking away money from the
kids. And I know that’s not your point, that
33a
Appendix A
you didn’t do this for that. You’re representing
your client. But may I ask if we could have an
attitude shift on this of more cooperative for
the sake of the children?
The court continued to discuss the objections for some time
following this call for peace. At the end of the contempt
hearing, after the judge commented to the Defendants
that “it doesn’t hurt to go over and above” the orders in
the remedial decree, the judge remarked:
The Children’s attorneys have been fantastic
and given it their all. And I thank the State’s
attorneys too. I’m just sorry we’re having a
contempt motion and having these hearings. I
just wish that instead of paying for all of this,
all the time, the people of Texas could help
us—help you-all understand that this is an
important, very important subject. . . .
Money again came up in one witness examination:
WITNESS: “They’ve got money. They are
spending it instead trying to do everything to
not follow your orders.”
THE COURT: “I’m aware. . . . [T]hey’re trying
to do workarounds of my orders. . . .”
See Johnson, 120 F.3d at 1335-36 (reassigning after the
judge, among other things, said that he was “concerned
about how we spend our money in this United States of
34a
Appendix A
America” and that “the tax payers should not be paying 10$15 [sic] million out because it doesn’t cost [the government]
anything to come down here to try this case.”).
In an earlier status conference, the judge even mixed
the state’s performance of the remedial decree with an
extraneous federal program. There, the judge brought
up the Family and First Preservation Services Act, 42
U.S.C. §§ 670-679, and specifically its grant of federal
funds to state programs that meet the relevant criteria to
be “qualified residential treatment programs.” Id. § 672.
The judge remarked:
But here is what I understand, that you-all have
no intention of bringing any of those RTCs,
Residential Treatment Center, treatment
programs, into compliance with that 2018 Act.
So you have notified the State, the Legislature,
that you have an expected loss of 17.4 million in
federal support in fiscal year ‘22, another 25.6
million in fiscal year ‘23. Now that’s giving up
a whole lot of money for these children, while
still complaining, I might add, as an aside
of the Monitors’ fees, as well as it makes me
wonder what on earth I could fine you by way of
sanctions if you have not complied . . . if you can
throw away some $40 million without a by [your]
leave, because you can’t bring these RTCs
up to—what looks to me like pretty minimal
requirements to get this money.
And in another pre-contempt hearing status conference,
when discussing apparent issues with certain electronic
35a
Appendix A
medical databases, the judge stated: “I mean, I’ve got
to give the Plaintiffs—at least [Counsel], a bunch more
money.”8
Returning to the contempt hearing, when it began
in earnest the district judge’s remarks continued in
a vein that failed to demonstrate disinterestedness
and evenhandedness. Defendants opted not to call any
witnesses as experts, to which the judge remarked: “I
think you need lots of experts, but that’s only my opinion.”
When swearing in one group of witnesses, the district
judge asked: “Have you-all heard from Commissioner
Young? How is she doing?” One witness replied: “Haven’t
heard from her.” The judge then stated: “Nobody cares.”
This appears to reference the subject of an earlier
status conference. There, the district judge ordered the
HHSC commissioner to appear for a hearing two days
after emergency surgery, even though her doctor provided
her with a note saying that she should refrain from work.
The judge described this as a “high school test note” and
opined on what the recovery time should be. In the end, the
judge did not order the Commissioner’s attendance, but
described that absence as “obstructive,” “maddening,” and
“disappointing.” She also suggested that Defense counsel
wanted an order forcing the Commissioner to attend so
that Defendants could seek mandamus relief from this
court. See In re DaimlerChrysler Corp., 294 F.3d at 700-01
8. As is noted supra, by “giving the Plaintiffs money,” the
court is determining that what would otherwise be counsel fees
pursuant to 28 U.S.C. 1988 is being directed to a fund “for the
children” at the court’s disposal.
36a
Appendix A
& n.1 (reassigning after the district judge demonstrated
“hostility” in responding to mandamus proceedings he
called “baseless”).
Before the first witness examination at the contempt
hearing, Defense counsel objected on the ground that
DFPS Commissioner Muth should be excused because,
as a potential witness, she should not be present for other
witness testimony under Federal Rule of Evidence 615.
When the district judge maintained that the Commissioner
was to remain in attendance, Defense counsel began
asking if the district judge was overruling the objection.
Not content simply to overrule the objection, the district
judge’s response in cutting off Defense counsel is notable:
“Don’t go there, counsel. You’re just annoying me. And
that is bad form. And I’m about to hold you in [in-court]
contempt. . . . So you are very close, [counsel], to be held in
contempt yourself. Do you want that on your malpractice
insurance?” The judge continued: “Now, when I give an
order, I don’t want you arguing with it again. Is that
clear?”
Soon thereafter, the court mentioned the medical
reason for which Commissioner Young’s presence at the
hearing was excused, to which Defense counsel objected
because it was a public hearing. The judge replied: “Yes,
it is. And don’t object to my comment, sir. And stand when
you address the Court. . . . And do not—do not argue with
my orders again. We’ve already been through this. . . . And,
yes, I know this is a public hearing, sir. You don’t need to
call that to my attention. And you-all are getting off to a
very bad start here.”
37a
Appendix A
The judge made several other remarks during the
examination of witness that imply bias. In response to
a Defense objection to a direct examination question
that counsel said was “vague . . . and compound and
mischaracterizes what the actual document is,” the judge
responded: “I don’t understand your objection, so I’m
going to overrule it . . . your objection is compounding
and confusing.” After another Defense objection, the
judge said: “Counsel, I interrupted you before and told
you to sit down. I shouldn’t have done that. If you want to
clarify something, go ahead. It’s just hard to listen. It’s
hard to listen to what [the witness] has to say.” At the end
of this witness’s direct examination, the court discussed
the logistics surrounding whether the witness would be
needed on another day of the hearing. After concluding
that the witness should stay in town, the judge asked:
“Well, are you in a better hotel than the kids are in? That’s
all I want to know.”
A nother such exchange arose during a direct
examination on the subject of contractor quality and the
State’s choice of contractor:
WITNESS: “[T]he oversight we provide is
around, again, making sure that [Contractor’s]
services are covered and delivered. We don’t
necessarily—”
THE COURT: “Not delivered well. You don’t
care if they’re delivered well. You don’t have
anything to do with that?”
38a
Appendix A
WITNESS: “Your Honor, I—”
THE COURT: “That’s an easy one.”
And later:
THE COURT: “[T]he state contracts with these
people that are not doing their job, and they
still keep contracting with them, and they don’t
get their tests done. They’re measuring it. The
State is measuring it. A lot of good that does.
Does anybody have an answer? What is the
answer to this, except for [Contractor] is going
to continue to try to work with you?”
WITNESS: “Your Honor, I’m sorry. Would you
repeat the question? I want to be responsive.”
THE COURT: “I don’t know if there’s a
question. It was more of an irritable rant. . . .”
See Johnson, 120 F.3d at 1334 (reassigning after the judge,
among other things, asked potential witnesses during voir
dire: “Now, how many of you have a bone to pick, other
than me, with the Internal Revenue Service?”). And when
that same witness explained that it was his “understanding
that [Contractor] in Texas is outperforming other states
with a single statewide Managed Care Organization for
foster care,” the judge dismissed it: “Well, I don’t really
care about other states. We’re talking about this state.”
Why that testimony is irrelevant is unclear.
39a
Appendix A
The judge displayed similar emotion during crossexamination of the same witness:
We just had one of the world’s experts on
this in here talking about how important
[Texas Psychotropic Medication Utilization
Parameters were] for the safety of the children,
and yet you who work for the Department
cannot say this is a number one safety concern
for psychotropic drugs. . . . And that is really
chilling to me. . . . Sorry. We’re going to take a
break, because I’m getting distressed and it’s
not fair to this witness.
After the court took a recess to alleviate her distress,
however, the judge stopped asking questions of the witness
alongside Plaintiffs’ counsel, and opted instead to insert
accusatory commentary:
PLA INTIFFS’ COUNSEL: “ The Texas
Psychotropic Medication Utilization Parameters
are in place today to help ensure child safety,
are they not?”
THE COURT: “He’s not going to say it. He’s
been coached not to talk about child safety in
this hearing—”
COUNSEL: “Your Honor—”
THE COURT: “—as ever y one of thei r
witnesses has to date.”
COUNSEL: “Let’s hear him deny it.”
40a
Appendix A
Plaintiffs’ counsel repeated the question, but when the
witness attempted to answer, the judge stated: “Here
we go.” At the end of that line of questioning, the judge
remarked: “You got that one down.” When the witness
later asked a clarifying question of Plaintiffs’ counsel,
the judge stated: “Now, isn’t that sad?” See Johnson,
120 F.3d at 1335 (reassigning after a judge, among other
things, stated: “It seems to me the problem is one of
disingenuousness on the part of witnesses getting up
here and saying they don’t know anything. They’re lying
through their teeth. That’s all that means.”).
During another witness’s testimony, the judge
remarked: “I don’t know how the State sleeps at night with
this. I really don’t.” Following Defense cross-examination
of that witness, when counsel said, “No further questions
from this witness,” the judge replied: “I would hope not.
Thank you.”
Caustic remarks like these are not limited to the
contempt hearing. At a post-contempt hearing status
conference, the judge stated: “Commissioner Young,
Commissioner Muth, there are people in your departments
. . . that have a higher concern about these children than
either of you do, evidently.” Soon thereafter, after a series
of questions about the veracity of certain state records, she
asked: “[Commissioner Muth], have you no shame that you
can seriously sit here under oath with your cohort there
. . . ?” Following objection by Defense counsel, the judge
stated: “I don’t know how you all sleep nights. [Counsel],
do you want to add your two cents here? Oh, I’m sorry,
not two cents, the 1,000-some-odd dollars’ worth.” On
41a
Appendix A
another occasion, Defense counsel apparently failed to
bring printed copies of certain documents that the court
requested to a post-contempt hearing status conference.
In response, the court quickly brought up the prospect of
in-court contempt, threatening Defendants themselves:
“Commissioner Muth, Commissioner Young, have you ever
seen the inside of a jail cell?” See Gomez v. St. Jude Med.
Daig Div. Inc., 442 F.3d 919, 938 (5th Cir. 2006) (“[T]he
question is whether the court is biased against a party, not
whether the court is annoyed with the party’s counsel.”).
A little later, and again mentioning Defense counsel’s
fees, the court mused about the prospect with Plaintiffs’
counsel, who joined in the crude jest at the Defendants’
expense:
THE COURT: “I’m just thinking of the
the [sic] punishment for the contumacious
behavior. I should sentence [Counsel] and
[DFPS Commissioner] Muth and [HHSC
Commissioner] Young to one of these CWOP
(phonetic) houses, maybe one of the one of the
[sic] cheap motels, where they can live off of
McDonald’s.”
COUNSEL: “They wouldn’t have to stay there,
Your Honor. They could just leave whenever
they wanted. They could just leave whenever
they wanted. They could just come and go since
that’s true security in these houses.”
42a
Appendix A
THE COURT: “That’s true. That’s true, or
they might be subject to the tasering or the
handcuffs.”
COUNSEL: “Yes, they could. They certainly—”
THE COURT: “Or the pulling of the arrests.”
COUNSEL: “They certainly wouldn’t stay
there for any meals.”
THE COURT: “And, you know, but I hate
though to send anybody from Gibson Dunn at
$1300 an hour to one of the CWOP locations and
charge that up to the State.”
The judge concluded: “These are our children. These are
our children.” See Ruiz v. Estelle, 679 F.2d 1115, 1129 (5th
Cir. 1982) (“The trial judge must not become personally
embroiled in the proceedings. He must not assume the role
of prosecutor or defender.” (quotations omitted)).
In addition to other grounds for contempt, the
district judge is carrying forward Plaintiffs’ request for
receivership, but she expressed interest in the thoughts
of one of Plaintiffs’ expert witnesses on the matter during
the contempt hearing:
DEFENSE COUNSEL: “[H]ave you ever
discussed with anyone . . . the possibility of a
receivership in the State of Texas over the child
welfare system?”
43a
Appendix A
THE COURT: “Do you want to ask her if she’s
got an opinion?”
COUNSEL: “No, Your Honor.”
THE COURT: “I bet we’ll get one. I like this
lady.”
COUNSEL: “I’m aware.”
THE COURT: “I liked her from the trial.”
This is not the only time the judge telegraphed her
interests or leanings on certain matters in this case. In
early 2023, the judge began encouraging Plaintiffs to file
the instant contempt motion: “I told you-all that at the last
hearing, that I was prepared to hear a contempt motion,
and I never got one. . . . I can’t write it for you. . . . I can
just tell you that I’m prepared. . . . I was prepared today
to hear one, and none showed up.” Once Plaintiffs filed
their motion, the court encouraged adding to it to cover
more remedial orders: “Let me tell you how this is going
to go. I’m going to ask [Plaintiffs’ counsel] to modify his
contempt motion.” At the same conference in which the
judge encouraged modification, she also stated: “I need
to tell you all, I don’t see how you ever are going to get
off monitoring with this attitude. I don’t know how you’re
going to ever turn the corner.”
After the contempt hearing, Defendants filed a Rule
60(b)(5) motion for relief from judgment that remains
pending, but the district judge remarked later about
44a
Appendix A
Defendants’ “hubris” and stated that filing the motion
was “unbelievable.” After Plaintiffs’ counsel expressed
that he found the motion “maddening,” the judge noted:
“Well, clearly it’s affecting me.” See In re DaimlerChrysler
Corp., 294 F.3d at 701 & n.1 (reassigning because of a
judge’s demonstrated “hostility,” including a sarcastic
attack on the defendants). In that same conference, the
district judge mentioned that she was “going to start
charging [Defendants] per incident in the next contempt
hearing—per incident,” rather than per order.
The above excerpts show that the judge exhibits
a sustained pattern, over the course of months and
numerous hearings, of disrespect for the Defendants and
their counsel, but no such attitude toward the Plaintiffs’
counsel. The judge’s demeanor exhibits a “high degree of
antagonism,” calling into doubt at least “the appearance
of fairness” for the state Defendants. Johnson, 120 F.3d
at 1333, 1335.
The third factor relevant to a reassignment request
requires evaluating the effects of reassignment on judicial
efficiency, as this court weighs any “gain in preserving
the appearance of fairness” against any “waste and
duplication.” Johnson, 120 F.3d at 1333. In a decade-old
case, with a remedial decree covering over sixty dictates,
this is a difficult task. Undoubtedly, the judge is intimately
familiar with the course of proceedings and the scope
of the demands placed upon state agencies that are
responsible for a $2 billion budget, over 29,000 children,
and 100,000 facilities. We do not lightly transfer oversight
of the court’s remedial decree to another federal judge
given the complexity of the case.
45a
Appendix A
On the other hand, this court has not previously
hesitated, when necessary, to remove a judge from
extended litigation. See id. (removing judge from a
“hotly contested, extremely emotional case that had been
pending for more than ten years”); Cobell v. Kempthorne,
455 F.3d 317, 319, 372 U.S. App. D.C. 232 (D.C. Cir. 2006)
(removing judge from institutional reform case pending
nearly a decade). Several facts compel bringing this case
before a more disinterested tribunal. First, that the
district judge has become too personally involved in the
proceedings seems evident from the episodes recounted
above.
Second, it is necessary to reconsider the continued
adversarial nature of this proceeding. Here, the judge
indicated the strong possibility, arising from over 200
pages’ discussion in the 427-page order that resulted in this
appeal, that there will be further contempt orders or that
the foster care system will be placed in receivership. In
the December 2023 hearing, in addition to taking evidence
about the investigation of abuse and neglect allegations
involving PMC children under Remedial Orders 3 and
10, the court considered (a) continuing safety concerns in
DFPS and HHSC, (b) the use of psychotropic medicines,
(c) “the CWOP [Children without placement] crisis,” (d)
apprising PMC children of ways to report abuse and
neglect, and (e) the inadequacy of PMC children’s medical
and educational records. These areas of inquiry pertained
to Remedial Orders 4, 7, 8, 20, 25, 26, 27, 29, 31, 35, A3,
A4, A6, and the Order Regarding Workload Studies. The
state counters in brief that it has fully complied with a
number of Remedial Orders, and with Remedial Orders 3
46a
Appendix A
and 10 by inter alia hiring and better training more staff,
and implementing policies to hold providers accountable
for poor care. The state intends to continue improving the
foster care system in good faith, as exhibited by significant
remedial efforts in the past several years.
We take no position on issues that have not yet
matured into appealable orders. However, as a general
rule of law federal judges are not allowed to become
permanent de facto superintendents of major state
agencies. Horne v. Flores, 557 U.S. 433, 453, 129 S. Ct.
2579, 2597, 174 L. Ed. 2d 406 (2009) (“[T]he longer an
injunction or consent decree stays in place, the greater
the risk that it will improperly interfere with a State’s
democratic processes.”); United States v. Mississippi,
82 F.4th 387, 400 (5th Cir. 2023) (“Micromanagement,
enforced upon threat of contempt, does not reflect the
principles of comity” in prison context.). Nor, under the
federalist structure created by the Constitution, is it
appropriate for federal court intervention to thwart the
state’s self-management, where the state is taking strides
to eliminate the abuses that led to the original decree.
Horne, 557 U.S. at 448, 129 S. Ct. at 2593-94 (“Federalism
concerns are heightened” where “a federal court decree
has the effect of dictating state . . . budget priorities.”).
Nor are federal judges even suited, by training or
temperament, to manage institutions, personnel, or
the provision of vital state services, even if counselled
by monitors. In this case particularly, the integrity of
oversight may have been further put at risk by the trial
court’s creation of a “fund,” based on plaintiffs’ attorneys’
foregoing their court-approved fees, that the court may
47a
Appendix A
evidently disburse at its discretion. Federal judges should
not be personally allocating resources from the state’s
taxpayers for purposes not directly tied to and controlled
by the state itself in order to abide by a court decree.
As this court has explained, “when a judge’s actions
stand at odds with these basic notions [of fairness and
impartiality], we must act or suffer the loss of public
confidence in our judicial system.” Miller, 986 F.3d at 883
(5th Cir. 2021). The district judge must be removed.
CONCLUSION
For these reasons, we REVERSE the order of
contempt, and further direct the Chief Judge of the
Southern District of Texas to REASSIGN this case to
another judge on remand.
48a
Appendix
APPENDIX B — Order
of the B
United States District
Court for the Southern District of Texas
(Apr. 15, 2024)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
CIVIL ACTION NO. 2:11-CV-00084
M.D. BNF STUKENBERG, et al.,
Plaintiffs,
v.
GREG ABBOTT, et al.,
Defendants.
Filed April 15, 2024
ORDER1
[TABLE INTENTIONALLY OMITTED]
Came on to be heard Plaintiffs’ Third Amended
Motion to Show Cause Why Defendants Should Not Be
Held in Contempt (D.E. 1427) and Defendants’ Response
1. The Court is aware that this Order is of extraordinary
length due to the fact intensive nature of these findings and the
Court’s opinion that the stories of these children need to be told.
49a
Appendix B
to Plaintiffs’ Third Amended Motion for Order to Show
Cause Why Defendants Should Not Be Held in Contempt
(D.E. 1429).
I. INTRODUCTION
More than a decade has passed since Plaintiffs
first brought to the Court’s attention the numerous
deficiencies in the Texas foster care system that were
violating the right of children in the Permanent Managing
Conservatorship (“PMC”) of the State of Texas to be free
from an unreasonable risk of harm, under the Fourteenth
Amendment to the United States Constitution. (See D.E.
1.) Plaintiffs alleged that by the time they filed their
Complaint on March 29, 2011, Defendants had already
“long been aware of these and other deficiencies of the
Texas foster care system, yet ha[d] failed to effectively
address them.” (Id. at 3 ¶ 10.) In the twelve years that
followed, this case proceeded to trial; the Court held
that PMC children face an unconstitutional risk of harm
in the State’s custody; the Court and its Special Masters
underwent two years of work to fashion appropriate orders
to remedy the State’s constitutional violations (“Remedial
Orders”); the Fifth Circuit heard multiple appeals of
those Remedial Orders; and this Court twice found that
Defendants were in contempt of those Remedial Orders,
as modified by the Fifth Circuit. As part of its remedy
of the State’s constitutional violations, the Court also
ordered the appointment of Monitors who would review
information from Defendants to assess their compliance
with the Remedial Orders.
50a
Appendix B
In June 2023, Plaintiffs moved for an order to show
cause why Defendants should not be held in contempt and
a partial receivership imposed. Plaintiffs stated “the State
continues to defy orders issued by the Court and affirmed
by the Fifth Circuit,” thus “threatening the safety and
wellbeing of innocent children.” (D.E. 1376 at 1.)
On December 4, 5, and 6, 2023, the Court held a
Contempt Hearing with the following: Defendant GREG
ABBOTT, in his official capacity as Governor of the State
of Texas; Defendant CECILE ERWIN YOUNG, in her
official capacity as Executive Commissioner of the Health
and Human Services Commission (“HHSC”) of the State
of Texas; and Defendant STEPHANIE MUTH, in her
official capacity as Commissioner of the Department of
Family and Protective Services (“DFPS”) of the State
of Texas.
II. JURISDICTION
Plaintiffs’ Motion to Show Cause seeks to hold
Defendants in contempt of this Court’s orders regarding
remedies for a class action brought under 42 U.S.C. § 1983,
in which the Court held, and the Fifth Circuit affirmed,
that Defendants-officials of the State of Texas-violated the
substantive due process rights of a class of foster children
in Texas State custody under the Fourteenth Amendment
to the United States Constitution. The Court has subject
matter jurisdiction over this case pursuant to 28 U.S.C.
§ 1331.
51a
Appendix B
Furthermore, “[t]he power to punish for contempt is
an inherent power of the federal courts and . . . it includes
the power to punish violations of their own orders.” In
re Bradley, 588 F.3d 254, 264 (5th Cir. 2009); see also
Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 450,
31 S.Ct. 492, 55 L.Ed. 797 (1911) (“[T]he power of courts
to punish for contempt[] is a necessary and integral part
of the independence of the judiciary, and is absolutely
essential to the performance of the duties imposed on
them by law.”).
III. PROCEDURAL HISTORY
A. Procedural history prior to the present motion
The prior procedural history of this case is more
thoroughly described in previous orders. (See D.E. 368
at 4-5 (December 17, 2015 Memorandum Opinion and
Verdict); D.E. 546 at 1 (Special Masters’ Implementation
Plan); D.E. 559 at 2-4 (January 19, 2018 Final Order));
M.D. ex rel. Stukenberg v. Abbott (Stukenberg I), 907 F.3d
237, 243 (5th Cir. 2018); (D.E. 606 at 1 (November 20, 2018
Order)); M.D. ex rel. Stukenberg v. Abbott (Stukenberg II),
929 F.3d 272, 275 (5th Cir. 2019); (D.E. 725 at 2 (November
7, 2019 Contempt Order); D.E. 1017 at 9-11 (December 18,
2020 Contempt Order)); M.D. ex rel. Stukenberg v. Abbott
(Stukenberg III), 977 F.3d 479, 481-482 (5th Cir. 2020).
B. Prior contempt proceedings
As noted above, this is the third time the Court has
considered whether Defendants are in contempt of its
orders.
52a
Appendix B
1.
The November 2019 contempt order
On October 18, 2019, following the Fifth Circuit’s
Mandate in Stukenberg II, Plaintiffs moved for an order
to show cause why Defendants should not be held in
contempt for, inter alia, “[f]ailure to comply with the
Order requiring defendants to provide 24-hour awakenight supervision in all placements housing more than
six children” 2 (D.E. 695 at 2); a hearing was held on
November 5, 2019 (see D.E. 697). Following the hearing,
the Court held Defendants in civil contempt for failure
to follow Remedial Order A7, which requires Defendants
to provide 24-hour awake-night supervision in facilities
housing more than six children where PMC children are
placed. (D.E. 725 at 1, 18-20.)
2.
The December 2020 contempt order
On July 2, 2020, Plaintiffs again moved the Court
for an order to show cause why Defendants should not
be held in contempt. (See D.E. 901 (“2020 Contempt
Motion”).) Plaintiffs alleged that Defendants had failed
to implement sixteen of the forty-six affirmed Remedial
Orders—specifically, Remedial Orders 2, 3, 5, 7, 10, 22,
2. Plaintiffs also moved for an order to show cause why
Defendants should not be held in contempt for “[f]ailure to comply
with the Order requiring defendants within 60 days after issuance
of the Fifth Circuit’s Mandate to provide detailed proposals for
the required workload studies as to conservatorship caseworkers
and [Residential Child Care Licensing] investigators.” (D.E. 695
at 2.) The Court did not hold Defendants in contempt of this order.
(See D.E. 725 at 23.)
53a
Appendix B
24, 25, 26, 27, 28, 29, 30, 31, 37, and B5. 3 (Id. at 4-17; see
also D.E. 1017 at 14-15.)
The 2020 Contempt Motion was heard on September
3 and 4, 2020. (See D.E. 990 (Tr. of Sept. 3, 2020); D.E.
991 (Tr. of Sept. 4, 2020).) The Court found Defendants in
contempt of Remedial Orders 2, 3, 5, 7, 10, 22, 25, 26, 27,
29, 31, 37, and B5, and did not find Defendants in contempt
of Remedial Orders 24, 38, or 30. (D.E. 1017 at 326.)
C. The present Contempt Motion
Plaintiffs first moved for an order to show cause on
June 20, 2023. (D.E. 1376 (Plaintiffs’ Motion to Show Cause
Why Defendants Should Not Be Held in Contempt).) In
the months that followed, Plaintiffs amended and revised
the motion several times. (See D.E. 1404 (Plaintiffs’
Amended Motion to Show Cause Why Defendants Should
Not Be Held in Contempt); D.E. 1419 (Plaintiffs’ Second
Amended Motion to Show Cause Why Defendants Should
Not Be Held in Contempt and for receivership); D.E. 1420
(Plaintiffs’ Corrected Second Amended Motion to Show
Cause Why Defendants Should Not Be Held in Contempt
and for receivership).)
3. The 2020 Contempt Motion also requested an order to
show cause as to Remedial Order 20. (D.E. 901 at 17-18.) But
before the 2020 Contempt Motion was heard, Defendants filed an
unopposed motion requesting that they be given until January 1,
2021 to implement Remedial Order 20. (See D.E. 942 (filed Aug.
13, 2020); D.E. 942-1.) The Court granted the motion (D.E. 950),
so Defendants’ compliance with Remedial Order 20 was not at
issue at the hearing on the 2020 Contempt Motion.
54a
Appendix B
On November 1, 2023, Plaintiffs filed their Third
Amended Motion to Show Cause Why Defendants Should
Not Be Held in Contempt and for receivership (“Plaintiffs’
Motion” or “Contempt Motion”). (D.E. 1427.) Defendants
filed responses to Plaintiffs’ amended motion and third
amended motion. (D.E. 1408 (responding to D.E. 1404);
D.E. 1429 (responding to D.E. 1427).)
As noted above, on December 4-6, 2023, the Court
held a hearing on Plaintiffs’ Motion (the “Contempt
Hearing”). (See D.E. 1427 (Order to Show Cause); D.E.
1487 (Tr. of Dec. 4, 2023); D.E. 1488 (Tr. of Dec. 5, 2023);
D.E. 1489 (Tr. of Dec. 6, 2023).) The Court is carrying the
receivership motion forward and it was not considered at
the Contempt Hearing.
The following remedial orders were the subject of the
Contempt Motion (see D.E. 1427 at 9-54):
Remedial Order 3, which provides:
DFPS shall ensure that reported allegations of
child abuse and neglect involving children in the
PMC class are investigated; commenced and
completed on time consistent with the Court’s
Order; and conducted taking into account at
all times the child’s safety needs. The Monitors
shall periodically review the statewide system
for appropriately receiving, screening, and
investigating reports of abuse and neglect
involving children in the PMC class to ensure
the investigations of all reports are commenced
55a
Appendix B
and completed on time consistent with this
Order and conducted taking into account at all
times the child’s safety needs.
(D.E. 606 at 2 ¶ 3.)
Remedial Order 4, which provides:
Within 60 days, DFPS shall ensure that all
caseworkers and caregivers are trained to
recognize and report sexual abuse, including
child-on-child sexual abuse.
(Id. at 2 ¶ 4.)
Remedial Order 7, which provides:
Within 60 days and ongoing thereafter, DFPS
shall, in accordance with DFPS policies and
administrative rules, complete required initial
face-to-face contact with the alleged child
victim(s) in Priority One child abuse and neglect
investigations involving PMC children as soon
as possible but no later than 24 hours after
intake.
(Id. at 3 ¶ 7.)
Remedial Order 8, which provides:
Within 60 days and ongoing thereafter, DFPS
shall, in accordance with DFPS policies and
56a
Appendix B
administrative rules, complete required initial
face-to-face contact with the alleged child
victim(s) in Priority Two child abuse and
neglect investigations involving PMC children
as soon as possible but no later than 72 hours
after intake.
(Id. at 3 ¶ 8.)
Remedial Order 10, which provides:
Within 60 days, DFPS shall, in accordance
with DFPS policies and administrative rules,
complete Priority One and Priority T wo
child abuse and neglect investigations that
involve children in the PMC class within 30
days of intake, unless an extension has been
approved for good cause and documented in
the investigative record. If an investigation has
been extended more than once, all extensions
for good cause must be documented in the
investigative record.
(Id. at 3 ¶ 10.)
Remedial Order 20, which provides:
Within 120 days, RCCL, and/or any successor
entity charged with inspections of child care
placements, will identify, track and address
concerns at facilities that show a pattern of
contract or policy violations. Such facilities
57a
Appendix B
must be subject to heightened monitoring by
DFPS and any successor entity charged with
inspections of child care placements and subject
to more frequent inspections, corrective actions
and, as appropriate, other remedial actions
under DFPS’ enforcement framework.
(Id. at 4-5 ¶ 20.)
Remedial Order 25, which provides:
Effective immediately, all of a child’s caregivers
must be apprised of confirmed allegations at
each present and subsequent placement.
(Id. at 5 ¶ 25.)
Remedial Order 26, which provides:
Effective immediately, if a child has been
sexually abused by an adult or another youth,
DFPS must ensure all information about sexual
abuse is reflected in the child’s placement
summary form, and common application for
placement.
(Id. at 5 ¶ 26.)
Remedial Order 27, which provides:
Effective immediately, all of the child’s
caregivers must be apprised of confirmed
58a
Appendix B
allegations of sexual abuse of the child at each
present and subsequent placement.
(Id. at 5 ¶ 27.)
Remedial Order 29, which provides:
Effective immediately, if sexually aggressive
behavior is identified from a child, DFPS shall
also ensure the information is reflected in the
child’s placement summary form, and common
application for placement.
(Id. at 6 ¶ 29.)
Remedial Order 31, which provides:
Effective immediately, all of the child’s
caregivers must be apprised at each present
and subsequent placement of conf irmed
allegations of sexual abuse involving the PMC
child as the aggressor.
(Id. at 6 ¶ 31.)
Remedial Order 35, which provides:
Effective immediately, DFPS shall track
caseloads on a child-only basis, as ordered
by the Court in December 2015. Effective
immediately, DFPS shall report to the Monitors,
on a quarterly basis, caseloads for all staff,
59a
Appendix B
including supervisors, who provide primary
case management services to children in the
PMC class, whether employed by a public or
private entity, and whether full-time or parttime. Data reports shall show all staff who
provide case management services to children
in the PMC class and their caseloads. In
addition, DFPS’s reporting shall include the
number and percent of staff with caseloads
within, below and over the DFPS established
guideline, by office, by county, by agency (if
private) and statewide. Reports will include the
identification number and location of individual
staff and the number of PMC children and,
if any, TMC children to whom they provide
case management. Caseloads for staff, as
defined above, who spend part-time in caseload
carrying functions and part-time in other
functions must be reported accordingly.
(Id. at 7 ¶ 35.)
Remedial Order A3, which provides:
Within 150 days of the Court’s Order, DFPS
shall establish internal caseload standards
based on the findings of the DFPS workload
study, and subject to the Court’s approval. The
caseload standards that DFPS will establish
shall ensure a flexible method of distributing
caseloads that takes into account the following
non-exhaustive criteria: the complexity of the
60a
Appendix B
cases; travel distances; language barriers; and
the experience of the caseworker. In the policy
established by DFPS, caseloads for staff shall
be prorated for those who are less than fulltime. Additionally, caseloads for staff who spend
part-time in the work described by the caseload
standard and part-time in other functions shall
be prorated accordingly.
(Id. at 9 ¶ 3
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