Petition for Writ of Certiorari — Patrick Morrisey, Governor of West Virginia, et al., Petitioners v. Jonathan R., Minor, by Next Friend, Sarah Dixon, et al.

Supreme Court briefSep 2, 2026

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Text

No. ______

In the Supreme Court of the United States

PATRICK MORRISEY, ET AL.,

Petitioners,

JONATHAN R., MINOR,

BY NEXT FRIEND SARAH DIXON, ET AL.,

Respondents.

——————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

JOHN B. MCCUSKEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

HOLLY J. WILSON

Principal Deputy

Solicitor General

CALEB B. DAVID

Deputy Solicitor General

MATTHEW K. NIU

Bolton Caldwell Fellow

Counsel for Petitioners

QUESTIONS PRESENTED

Respondents asked a federal court to remake West

Virginia’s foster-care system. Their forty-seven all-ornothing demands encompassed every part of that system:

caseload ceilings and hiring qualifications for

caseworkers; timetables for evaluations, case plans, and

permanency plans; a placement-matching process and

foster-home recruitment plan; target rates for

maltreatment, placement stability, and permanency; an

outside entity to run placements; and a monitor above it

all.

Similarly broad suits are pending across the

country—by one count, in thirty-four States.

After certifying two classes covering every child now

or ever in the State’s custody, the district court dismissed

the suit for lack of standing. It held it could not redress

Respondents’ claims without exercising a power it did not

have: the power to take total control of the state system.

A divided Fourth Circuit reversed, announcing that a

court “not only holds the power, but a duty, to implement,

oversee, and administer reform of state institutions”—

even when it becomes “a manager or policy planner.” It

also refused to review the certification order, holding that

Federal Rule of Civil Procedure 23(f) barred review even

though the order had merged into the final judgment.

The questions presented are:

1. Is a claim redressable when the only relief said to be

effective requires a federal court to become the

“manager or policy planner” of a state agency?

2. When a class-certification order merges into a final

judgment, does Federal Rule of Civil Procedure 23(f)

nonetheless bar an appellate court from reviewing that

order on a cross-appeal from the judgment?

PARTIES TO THE PROCEEDING

Petitioners who were defendants in the district court

and defendants-appellees in the court of appeals are

Patrick Morrisey, in his official capacity as the Governor

of West Virginia; Alex J. Mayer, in his official capacity as

the Secretary of the West Virginia Department of Human

Services; Cammie Chapman, in her official capacity as

Deputy Secretary of the Department of Health and

Human Resources; Lori Bragg, in her official capacity as

Interim Commissioner of the Bureau for Social Services;

and the West Virginia Department of Human Services.

Respondents who were plaintiffs in the district court

and appellants in the court of appeals are, individually,

and on behalf of all others similarly situated, Jonathan R.,

minor, by next friend, Sarah Dixon; Anastasia M., minor,

by next friend, Cheryl Ord; Serena S., minor, by next

friend, Sarah Dixon; Theo S., minor, by next friend, L.

Scott Briscoe; Garrett M., minor, by next friend, L. Scott

Briscoe; Gretchen C., minor, by next friend, Cathy L.

Greiner; Dennis R., minor, by next friend, Debbie Stone;

Chris K., Calvin K., and Carolina K., minors, by next

friend, Katherine Huffman; Karter W., minor, by next

friend, L. Scott Briscoe; and Ace L., minor, by next friend,

Isabelle Santillion.

III

STATEMENT OF RELATED PROCEEDINGS

Jonathan R. v. Justice, No. 3:19-cv-00710 (S.D.W.

Va.), memorandum opinion and order granting

defendants’ motion to dismiss issued July 28, 2021;

Jonathan R. v. Justice, No. 21-1868 (4th Cir.), opinion

reversing and remanding for further proceedings issued

July 20, 2022.

Justice v. Jonathan R., No. 22-240 (S. Ct.), order

denying petition for writ of certiorari issued October 11,

2022.

Jonathan R. v. Justice, No. 3:19-cv-00710 (S.D.W.

Va.), memorandum opinion and order on plaintiffs’

renewed motion for class certification and appointment of

class counsel issued August 17, 2023;

Jonathan R. v. Morrisey, No. 3:19-cv-00710 (S.D.W.

Va.), memorandum opinion and order dismissing case

issued February 28, 2025; and

Jonathan R. v. Morrisey, No. 25-1232 (4th Cir.),

opinion reversing and remanding for further proceedings

issued June 4, 2026.

TABLE OF CONTENTS

Introduction .......................................................................... 1

Opinions Below ..................................................................... 2

Jurisdiction............................................................................ 3

Constitutional And Statutory Provisions Involved .......... 3

Statement .............................................................................. 3

Institutional Reform Litigation

Generally................................................................. 3

This Institutional Reform Case............................ 6

The Fourth Circuit’s Mandates:

Round One .............................................................. 8

The Fourth Circuit’s Mandates:

Round Two.............................................................. 9

Reasons For Granting The Petition ................................. 12

The Article III Question Warrants Review ............. 12

Courts lack the equitable power to take

over state programs............................................. 13

The Fourth Circuit distorted the

judiciary’s constitutional role ............................. 19

The Court should answer the question

now......................................................................... 23

II. The Class Certification Question Warrants

Review .......................................................................... 27

The Fourth Circuit ignored the merger

rule......................................................................... 28

The decision deepens a circuit split over

class-certification review ..................................... 32

Conclusion ........................................................................... 34

TABLE OF APPENDICES

Appendix A — Court of appeals opinion

(as amended June 8, 2026) ...................... 1a

Appendix B — District court opinion

(February 28, 2025) ............................... 61a

Appendix C — Court of appeals judgment ................... 85a

(June 4, 2026)

Appendix D — Relevant statutes and rules

28 U.S.C. § 1291...................................... 89a

FED. R. CIV. P. 23 .................................. 90a

FED. R. APP. P. 3 .................................. 101a

TABLE OF AUTHORITIES

Page(s)

Cases

Alden v. Maine,

527 U.S. 706 (1999) ....................................................... 16

Allen v. Wright,

468 U.S. 737 (1984) ....................................................... 17

Art Midwest Inc. v. Atl. Ltd. P’ship XII,

742 F.3d 206 (5th Cir. 2014) ......................................... 29

Bank of Montreal v. Signet Bank,

193 F.3d 818 (4th Cir. 1999) ......................................... 31

Bd. of Educ. of Okla. City Pub. Schs. v.

Dowell,

498 U.S. 237 (1991) ....................................................... 26

Bell v. Wolfish,

441 U.S. 520 (1979) ................................................. 18, 19

Blake v. City of Los Angeles,

595 F.2d 1367 (9th Cir. 1979) ....................................... 32

Block v. Rutherford,

468 U.S. 576 (1984) ....................................................... 18

Bond v. United States,

564 U.S. 211 (2011) ......................................................... 1

Branch v. Smith,

538 U.S. 254 (2003) ....................................................... 28

Brown v. Plata,

563 U.S. 493 (2011) .................... 15, 18, 19, 20, 23, 24, 25

California v. Texas,

593 U.S. 659 (2021) ....................................................... 22

VII

City of Los Angeles v. Lyons,

461 U.S. 95 (1983) ......................................................... 18

Clark v. Sweeney,

607 U.S. 7 (2025) ........................................................... 30

Cobbledick v. United States,

309 U.S. 323 (1940) ....................................................... 28

Cohens v. Virginia,

19 U.S. (6 Wheat) 264 (1821) ....................................... 30

Coopers & Lybrand v. Livesay,

437 U.S. 463 (1978) ....................................................... 29

Council 31, Am. Fed’n of State, Cnty. &

Mun. Emps. v. Ward,

978 F.2d 373 (7th Cir. 1992) ......................................... 33

Faust v. B.K.,

589 U.S. 1275 (2020) ..................................................... 27

FDA v. All. for Hippocratic Med.,

602 U.S. 367 (2024) ................................................. 20, 22

Fink v. Nat’l Sav. & Tr. Co.,

772 F.2d 951, 953 (D.C. Cir. 1985) .............................. 33

Freeman v. Pitts,

503 U.S. 467 (1992) ....................................................... 26

Frew v. Hawkins,

540 U.S. 431 (2004) ....................................................... 18

Geo Grp., Inc. v. Menocal,

607 U.S. 438 (2026) ....................................................... 28

Greenlaw v. United States,

554 U.S. 237 (2008) ....................................................... 29

Haaland v. Brackeen,

599 U.S. 255 (2023) ................................................. 13, 27

VIII

Hartman v. Duffey,

19 F.3d 1459 (D.C. Cir. 1994) ................................ 33, 34

Heath v. De Courcy,

888 F.2d 1105 (6th Cir. 1989) ......................................... 3

Henry v. Hulett,

969 F.3d 769 (7th Cir. 2020) ......................................... 34

Horne v. Flores,

557 U.S. 433 (2009) ....................................................... 23

Hutto v. Finney,

437 U.S. 678 (1978) ....................................................... 20

Int’l Union, United Mine Workers of Am.

v. Bagwell,

512 U.S. 821 (1994) ................................................. 15, 21

Jonathan R. v. Justice,

344 F.R.D. 294 (S.D.W. Va. 2023) ................................. 9

Jonathan R. v. Justice,

41 F.4th 316 (4th Cir. 2022) ................................. 6, 8, 22

Jonathan R. v. Justice,

No. 3:19-CV-00710, 2021 WL 3195020

(S.D.W. Va. July 28, 2021) ............................................. 8

Juliana v. United States,

947 F.3d 1159 (9th Cir. 2020) ....................................... 14

Klawonn v. Bd. of Dirs. for the Motion

Picture Indus. Pension Plans,

No. 25-2874, 2026 WL 2364541

(9th Cir. Aug. 14, 2026) ................................................ 32

Landor v. La. Dep’t of Corr. & Pub. Safety,

146 S. Ct. 1931 (2026) ..................................................... 2

Lewis v. Casey,

518 U.S. 343 (1996) ....................................................... 19

M.D. by Stukenberg v. Abbott,

119 F.4th 373 (5th Cir. 2024) ......................................... 2

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ........................................ 21

Margolin v. Nat’l Ass’n of Immigr.

Judges,

146 S. Ct. 1285 (2026) ................................................... 30

Maryland v. USDA,

151 F.4th 197 (4th Cir. 2025) ....................................... 22

Milan Express Co. v. W. Surety Co.,

886 F.2d 783 (6th Cir. 1989) ......................................... 33

Milliken v. Bradley,

433 U.S. 267 (1977) ................................................. 18, 20

Missouri v. Jenkins,

515 U.S. 70 (1995) ................... 4, 5, 12, 13, 14, 15, 16, 18,

23, 24, 25, 26

Money Store, Inc. v. Harriscorp Fin., Inc.,

885 F.2d 369 (7th Cir. 1989) ........................................... 5

N.Y. State Ass’n for Retarded Child. Inc. v.

Carey,

706 F.2d 956 (2d Cir. 1983) ............................................ 3

New York v. United States,

505 U.S. 144 (1992) ......................................................... 1

Nw. Ind. Tel. Co., Inc. v. FCC,

872 F.2d 465 (D.C. Cir. 1989) ...................................... 30

O’Shea v. Littleton,

414 U.S. 488 (1974) ....................................................... 19

Pers. Adm’r of Mass. v. Feeney,

442 U.S. 256 (1979) ....................................................... 21

Quackenbush v. Allstate Ins. Co.,

517 U.S. 706 (1996) ................................................. 28, 29

Rizzo v. Goode,

423 U.S. 362 (1976) ....................................................... 20

Sault Ste. Marie Tribe v. Michigan,

146 S. Ct. 1486 (2026) ................................................... 27

Seven Cnty. Infrastructure Coal. v. Eagle

Cnty.,

605 U.S. 168 (2025) ....................................................... 25

Shannon v. Gen. Elec. Co.,

186 F.3d 186 (2d Cir. 1999) .......................................... 28

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) ....................................................... 13

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) ......................................................... 22

Swann v. Charlotte-Mecklenburg Bd. of

Educ.,

402 U.S. 1 (1971) ........................................................... 26

TransUnion v. Ramirez,

594 U.S. 413 (2021) ....................................................... 21

Trump v. CASA, Inc.,

606 U.S. 831 (2025) ..................................2, 14, 19, 20, 27

United States v. Juvenile Male,

564 U.S. 932 (2011) ....................................................... 22

United States v. L.A. Tucker Truck Lines,

Inc.,

344 U.S. 33 (1952) ......................................................... 20

United States v. Texas,

599 U.S. 670 (2023) ................................12, 13, 14, 17, 18

Vizcaino v. U.S. Dist. Ct. for W. Dist. of

Wash.,

173 F.3d 713 (9th Cir. 1999) ......................................... 32

Whole Woman’s Health v. Jackson,

595 U.S. 30 (2021) ................................................... 18, 21

Younger v. Harris,

401 U.S. 37 (1971) ........................................................... 8

Statutes

28 U.S.C. § 1254 .................................................................... 3

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

Rules

FED. R. APP. P. 3........................................................... 28, 30

FED. R. CIV. P. 23 ....................................2, 11, 29, 31, 33, 34

SUP. CT. R. 10 ...................................................................... 12

Other Authorities

Abram Chayes,

The Role of The Judge in Public Law

Litigation,

89 HARV. L. REV. 1281 (1976) ........................................ 3

Allen Siegler,

Federal Judge Withdraws From West

Virginia Foster Care Lawsuit After

Involving Lawmakers In Settlement

Talks, MOUNTAIN STATE SPOTLIGHT

(Apr. 3, 2023),

https://perma.cc/5PBQ-BR2M ...................................... 9

XII

Class Action Compl.,

Keira M. v. Quin,

No. 3:25-cv-00566 (M.D. Tenn.),

ECF No. 1 ..................................................................... 27

Clerk’s Order,

Jonathan R. v. Justice,

No. 3:19-cv-00710

(S.D.W. Va. Apr. 3, 2023), ECF No. 311 ...................... 9

THE COMPLETE ANTI–FEDERALIST

(H. Storing ed. 1981) .................................................... 16

Decision and Order,

Mary B. v. Dompeling,

No. 3:22-cv-00129

(D. Alaska Mar. 31, 2026), ECF No. 461 .................... 26

Donald L. Horowitz,

Decreeing Organizational Change:

Judicial Supervision of Public

Institutions,

1983 DUKE L.J. 1265 (1983) ......................................... 14

THE FEDERALIST NO. 47 ................................................... 17

THE FEDERALIST NO. 78 ............................................. 16, 17

THE FEDERALIST NO. 80 ................................................... 16

H. MCCLINTOCK,

HANDBOOK OF THE PRINCIPLES OF

EQUITY (2d ed. 1948) .................................................... 15

Jason Parkin,

Aging Injunctions and the Legacy of

Institutional Reform Litigation,

70 VAND. L. REV. 167 (2017) .......................................... 5

XIII

John Choon Yoo,

Who Measures the Chancellor’s Foot?:

The Inherent Remedial Authority of

Federal Courts,

84 CALIF. L. REV. 1121 (1996) ..................3, 5, 14, 15, 16

Mark Tushnet,

Interpreting Constitutions

Comparatively: Some Cautionary

Notes, with Reference to Affirmative

Action,

36 CONN. L. REV. 649 (2004).......................................... 5

Nina Bernstein,

Despite 20-Year Effort, City Can’t Fix

System, NEWSDAY, July 13, 1993.................................. 5

Note,

Implementation Problems in

Institutional Reform Litigation,

91 HARV. L. REV. 428 (1977) .......................................... 5

Order,

Jonathan R. v. Justice,

No. 3:19-cv-00710

(S.D.W. Va. Apr. 3, 2023), ECF No. 310 ...................... 9

Order,

Jonathan R. v. Justice,

No. 3:19-cv-00710

(S.D.W. Va. Jan. 13, 2023),

2023 WL 184960 .............................................................. 9

Our Mission,

A BETTER CHILDHOOD,

https://perma.cc/2GWH-NMX5

(last visited Aug. 31, 2026) ............................................. 6

XIV

OWEN M. FISS & DOUG RENDLEMAN,

INJUNCTIONS (2d ed. 1984) ............................................ 4

Owen M. Fiss,

The New Procedure, in THE

CONSTITUTION AND THE REGULATION

OF SOCIETY (Gary C. Bryner & Dennis

L. Thompson eds., 1988) ................................................ 4

PAPERS OF THOMAS JEFFERSON

(J. Boyd ed., 1954) ........................................................ 16

Paul J. Mishkin,

Federal Courts as State Reformers,

35 WASH. & LEE L. REV. 949 (1978) ............................. 4

Pet. for Cert.,

Faust v. B.K.,

589 U.S. 1275 (2020) (No. 19-765) ............................... 27

Pet. for Cert.,

Sault Ste. Marie Tribe v. Michigan,

146 S. Ct. 1486 (2026) (No. 25-165) ............................. 27

ROSS SANDLER & DAVID SCHOENBROD,

DEMOCRACY BY DECREE: WHAT

HAPPENS WHEN COURTS RUN

GOVERNMENT (2003) .................................... 4, 24, 25, 26

SUMMARY OF CHILD WELFARE CLASS

ACTION LITIGATION,

CASEY FAM. PROGRAMS (Apr. 15, 2026),

https://perma.cc/H7LH-EFX3 ............................... 5, 26

W. BLACKSTONE,

COMMENTARIES ON THE LAWS OF

ENGLAND (1768) ........................................................... 15

WRIGHT & MILLER’S FEDERAL PRACTICE

PROCEDURE (3d ed. 2026) ............................................ 31

INTRODUCTION

Whatever else can be said about the decision below, its

conception of federal power does not lack confidence. It

claims “judicial authority” to “direct the use of state

funds” and “enact expansive reforms.” App.13a. It

embraces a “vision of the federal judge as a ‘manager’ of

institutional reform” of state agencies. App.18a. It

proclaims that “[t]he federal judiciary not only holds the

power, but a duty, to implement, oversee, and administer

reform of state institutions that violate the federal rights

of citizens.” App.20a. And it dismisses the State’s

contrary views as mere “public policy concerns.” App.27a.

Yet these confidently stated principles defy the

separation of powers. Respondents asked a federal

district court “to take over the [West Virginia] foster care

system during and until it is reformed to their

satisfaction.” App.63a. Their forty-seven demands would

have forced that court to “assume the responsibilities of

those who were elected to lead,” sweepingly restructuring

the state system from top to bottom. App.62a. And

though the district court appropriately declined, the

Fourth Circuit insisted that the district court could

“fashion a comprehensive decree incorporating any and all

of these requests.” App.27a. A federal trial court can now

assume control over the state executive branch’s acts of

administration, the state legislative branch’s acts of

appropriation, and the state judicial branch’s acts of

supervision—all in one decree.

“The positions occupied by state officials appear

nowhere on the Federal Government’s most detailed

organizational chart”—the Constitution. New York v.

United States, 505 U.S. 144, 188 (1992). Our system is

meant to “ensure that States function as political entities

in their own right.” Bond v. United States, 564 U.S. 211,

221 (2011). The Fourth Circuit’s conception of federal

judicial power would erase those distinctions, offending

“principles of state sovereignty and a federal government

of limited and enumerated regulatory powers” on the way

to rewriting standing’s requirement of redressability.

Landor v. La. Dep’t of Corr. & Pub. Safety, 146 S. Ct. 1931,

1947 (2026).

Were that not enough, the divided lower court also

refused to consider whether “Rule 23’s procedural

protections” were respected. Trump v. CASA, Inc., 606

U.S. 831, 849 (2025) (cleaned up). Those requirements

might have at least narrowed the case from the otherwise

total takeover that Respondents’ broad claims, sweeping

remedies, and class-wide treatment promised. But the

district court instead certified classes encompassing all

present and future foster-care children in West Virginia

in a class-certification order plagued with problems. See

App.56a-60a (Rushing, J., dissenting in part). Yet the

majority insisted that it could not even take an earnest

look at these problems until some later day.

At least outside the Fourth Circuit, it is “a general rule

of law [that] federal judges are not allowed to become

permanent de facto superintendents of major state

agencies.” M.D. by Stukenberg v. Abbott, 119 F.4th 373,

395 (5th Cir. 2024). The Court should grant the petition to

ensure that this general rule—and Rule 23, for that

matter—remains the law in the Fourth Circuit, too.

OPINIONS BELOW

The Fourth Circuit’s opinion (App.1a-60a) is reported

at 178 F.4th 139. The district court’s opinion (App.61a84a) is reported at 768 F.Supp.3d 756.

JURISDICTION

The Fourth Circuit entered judgment on June 4, 2026.

See App.85a. Petitioners timely filed this petition for

certiorari on September 2, 2026.

This Court has

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

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The relevant statutory provisions and rules appear at

App.89a-104a.

STATEMENT

Institutional Reform Litigation Generally.

Plaintiffs in institutional reform litigation aim to

transform the structure, policies, or practices of public

institutions through aggressive court mandates and

judicial oversight. See John Choon Yoo, Who Measures

the Chancellor’s Foot?: The Inherent Remedial Authority

of Federal Courts, 84 CALIF. L. REV. 1121, 1124-25 (1996).

Unlike traditional lawsuits that resolve discrete disputes

between specific parties, these lawsuits “reach beyond the

parties involved directly in the suit” with the goal of

forcing the “sound and efficient operation of [the public’s]

institutions.” Heath v. De Courcy, 888 F.2d 1105, 1109

(6th Cir. 1989); see also Abram Chayes, The Role of The

Judge in Public Law Litigation, 89 HARV. L. REV. 1281,

1302 (1976). The bottom-line objective is to force political

change, see id., even if achieving it forces courts to

“accommodat[e] … a wider constellation of interests than

is represented in the adversarial setting of the

courtroom,” N.Y. State Ass’n for Retarded Child. Inc. v.

Carey, 706 F.2d 956, 969 (2d Cir. 1983) (Friendly, J.).

Cases follow a template. “Reform-minded attorneys

identify a program that needs change,” they “construct a

legal theory that some constitutional or statutory

requirement has been violated,” and they “file a lawsuit.”

ROSS SANDLER & DAVID SCHOENBROD, DEMOCRACY BY

DECREE: WHAT HAPPENS WHEN COURTS RUN

GOVERNMENT 3 (2003). The suit seeks to produce what

has come to be known as a “structural injunction,” or,

when it follows a settlement (as it most often does), a

“consent decree.” Id. at 4.

A “structural injunction” is “the most visible and

perhaps the most ambitious exercise of judicial power”;

supporters think it can be used “to reconstruct the world.”

OWEN M. FISS & DOUG RENDLEMAN, INJUNCTIONS iv (2d

ed. 1984).

Through it, “[t]he judge directs the

reconstruction of an ongoing bureaucratic organization.”

Owen M. Fiss, The New Procedure, in THE CONSTITUTION

AND THE REGULATION OF SOCIETY 129 (Gary C. Bryner &

Dennis L. Thompson eds., 1988). A federal judge,

unelected and unaccountable to any electorate, thus

becomes “a roving commission to do good.” Paul J.

Mishkin, Federal Courts as State Reformers, 35 WASH. &

LEE L. REV. 949, 960, 971 (1978). And the judiciary has

applied this powerful device to all manner of local

institutions: prisons, mental hospitals, police forces,

schools, child welfare systems, public housing, and more.

See Missouri v. Jenkins, 515 U.S. 70, 126 (1995) (Thomas,

J., concurring).

While ambitious, institutional reform litigation often

falls short. See SANDLER & SCHOENBROD, supra, at

150-51 (discussing how even proponents recognize

shortcomings and have turned away from institutional

reform litigation). Courts are powerful in declaring

rights, but they are less equipped to manage large-scale

bureaucracies. See Yoo, supra, at 1137-38. They don’t

have the relevant experience, “possess only imperfect

tools for communicating their decrees,” have “few

resources for guaranteeing compliance,” and lack

“resources for marshaling political and public support.”

Id.; see generally Note, Implementation Problems in

Institutional Reform Litigation, 91 HARV. L. REV. 428,

429-32 (1977). Altogether, the “command-and-control”

methods courts have available “are not good ones for

developing complex programs for bureaucracies that face

ever-changing political and social environments, and that

have their own bureaucratic characteristics.” Mark

Tushnet, Interpreting Constitutions Comparatively:

Some Cautionary Notes, with Reference to Affirmative

Action, 36 CONN. L. REV. 649, 654 (2004). Unsurprisingly,

then, these cases tend to be protracted and costly. See

Jason Parkin, Aging Injunctions and the Legacy of

Institutional Reform Litigation, 70 VAND. L. REV. 167,

171-72 (2017). And the payoff is small. Near the end of

one decades-long case, one of the lawyers now

representing Respondents conceded that she didn’t even

“know what [they] really accomplished.” Nina Bernstein,

Despite 20-Year Effort, City Can’t Fix System, NEWSDAY,

July 13, 1993.

Today, parties continue to employ these lawsuits “in

the[ir] rush to enlist the courts in the cause of social

reform”—including in the foster-care context. Money

Store, Inc. v. Harriscorp Fin., Inc., 885 F.2d 369, 376 (7th

Cir. 1989) (Posner, J., concurring). At least thirty-four

states have been sued over their foster-care systems

alone, with the average case dragging on eleven years.

SUMMARY OF CHILD WELFARE CLASS ACTION

LITIGATION, CASEY FAM. PROGRAMS (Apr. 15, 2026),

https://perma.cc/H7LH-EFX3 (last modified June 22,

2026).

This Institutional Reform Case.

This petition involves one such lawsuit. In September

2019, a self-described “watchdog organization that

compels change through the power of the courts” filed this

action on Respondents’ behalf. Our Mission, A BETTER

CHILDHOOD, https://perma.cc/2GWH-NMX5 (last visited

Aug. 31, 2026). Respondents—twelve children then in the

custody of West Virginia’s Department of Human

Services—sued the Governor, the Department, and

several other state officials in a class action complaint

asking to restructure the foster-care system. See

generally C.A.App.148-252.

The Complaint labels West Virginia’s program a

top-to-bottom “failure[].” C.A.App.153. Respondents

allege that the supervising agency is “chronic[ally]”

overburdened,

understaffed,

mismanaged,

and

underfinanced. C.A.App.150-53. Pairing these claims

with alleged “systemic” issues, they maintain that the

State’s “actions and inactions” put them at a “risk of

harm.” E.g., C.A.App.159-161. And because of these

problems, they claim that Respondents have “violated

their constitutional rights in six different ways under the

Substantive Due Process Clause” and statutes like the

Americans with Disabilities Act and Rehabilitation Act of

1973. App.66a; see also App.57a.

Respondents “insist [these issues] can only be

remedied through systematic, structural change” made up

of forty-seven indivisible demands. Jonathan R. v. Justice

(“Jonathan R. I”), 41 F.4th 316, 323 (4th Cir. 2022); see

also C.A.App.246-51. Respondents have termed these

remedies “holistic,” C.A. Oral Arg. 7:41-7:48, and claimed

that they are necessary to address the “innumerable

things” that led to the singular risk of harm that

Respondents sought to rectify, id. 29:11-29:13.

To name a few, Respondents demand:

1. An outside entity to run foster-care placements,

including mandatory plan-development timetables;

2. A “complete and thorough” needs evaluation

(including disability needs) for every child within

30 days of entering care;

3. An “adequate and individualized” case plan—

including reunification and permanency plans—

within 60 days of entering care;

4. A plan to recruit more foster and adoptive homes

on a mandatory timeline;

5. Caseload limits of 10-12 families and 12-15 children

per worker, and a tracking system to monitor those

caseloads;

6. Extra hiring qualifications (e.g., social work

degree);

7. Specific, timebound caseworker recruitment,

retention, training, and tracking requirements and

processes;

8. A new placement “matching process”;

9. Specific numerical limits on maltreatment,

placement-stability, and permanency rates; and

10. A court-appointed monitor to oversee progress.

C.A.App.246-51;

see

also

C.A.App.1416-1444

(Respondents’ interrogatory responses further expanding

the demands).

Respondents also proposed multiple sprawling

classes, including: (1) a general class for “all children who

are now, or will be, in the custody of” the Department of

Human Services, and (2) a subclass consisting of “children

who have or will have physical, intellectual, cognitive, or

mental health disabilities.” C.A.App.153, 157-58.

The Fourth Circuit’s Mandates: Round One.

Recognizing that Respondents’ broad requests would

require the federal court to dictate state judicial

proceedings involving abuse-and-neglect matters,

Petitioners moved to dismiss. Jonathan R. I, 41 F.4th at

323-24. The district court granted the motion on mootness

(in that the plaintiffs had exited the foster-care system)

and Younger abstention grounds. Id. at 324 (citing

Younger v. Harris, 401 U.S. 37 (1971)). It observed how

“[r]emoving discretion from West Virginia’s state

courts”—which oversee abuse-and-neglect cases—“and

implementing federal court review over these decisions

[would be] highly problematic.” Jonathan R. v. Justice,

No. 3:19-CV-00710, 2021 WL 3195020, at *13 (S.D.W. Va.

July 28, 2021).

The Fourth Circuit reversed. Jonathan R. I, 41 F.4th

at 328. Relevant here, it reasoned that a federal forum

was preferable because it thought state courts were

reluctant to order “deep structural changes.” Id. at 338.

The Fourth Circuit was not content to “[r]eform[] foster

care case-by-case.” Id. at 336. Instead, it paved the way

for “Plaintiffs [to] assert wide-reaching, intertwined, and

‘systemic’ failures that cannot be remedied through

piecemeal orders.” Id. “[F]ederal reform of systemic

deficiencies in the [state] executive branch” was needed.

Id. at 339.

On remand, the district court partially granted

Petitioners’ motion to dismiss, leaving intact the due

process claim for the general class and the ADA and

Rehabilitation Act claims for the ADA subclass. Order,

Jonathan R. v. Justice, No. 3:19-cv-00710 (S.D.W. Va. Jan.

13, 2023), 2023 WL 184960, at *9, *13, *17.

But more problems soon developed. For one, the

original district court judge recused. Order, Jonathan R.

v. Justice, No. 3:19-cv-00710 (S.D.W. Va. Apr. 3, 2023),

ECF No. 310. That judge explained that he had

“conducted extensive and intensive settlement discussions

between the parties.” Id. at 1. Recognizing that any

remedy would require governmental policymaking, the

judge had also engaged directly with the West Virginia

Legislature to try to resolve Respondents’ expansive

claims. See Allen Siegler, Federal Judge Withdraws

From West Virginia Foster Care Lawsuit After Involving

Lawmakers In Settlement Talks, MOUNTAIN STATE

SPOTLIGHT (Apr. 3, 2023), https://perma.cc/5PBQ-BR2M.

The case was reassigned to a new judge, who then

partially

granted

Respondents’

renewed

class

certification motion. Clerk’s Order, Jonathan R. v.

Justice, No. 3:19-cv-00710 (S.D.W. Va. Apr. 3, 2023), ECF

No. 311; Jonathan R. v. Justice, 344 F.R.D. 294, 313-14

(S.D.W. Va. 2023). The district court certified the general

class and one ADA subclass. 344 F.R.D. at 313-14. Even

so, the district court warned that it “remain[ed] skeptical

of any relief requiring it to assume control of a state

agency and direct how that agency manages its program

and allocates its funds.” Id. at 301 n.1.

The Fourth Circuit’s Mandates: Round

Two.

The warning proved prescient. In February 2025,

after summary judgment motions were fully briefed, the

district court dismissed the action for lack of Article III

standing. App.61a-84a.

The Constitution, the court explained, does not “confer

on federal judges some amorphous power to supervise the

operations of government and reimagine them from the

ground up.” App.65a (cleaned up) (quoting Whole

Woman’s Health v. Jackson, 595 U.S. 30, 40 (2021)). “That

is the role of the executive and the legislature.” App.62a.

Respondents’ requested structural injunction—by

requiring the court to “take over the foster care system

during and until it is reformed to [Respondents’]

satisfaction”—transgressed those limits. App.63a. So the

court could not redress Respondents’ alleged injuries.

App.66a.

Respondents sought “judicially crafted policies that

would, in effect, place West Virginia’s foster care system

under indefinite federal control.” App.64a. An injunction

would direct “agency hiring, budget allocations, and

caseworker caseloads.” App.64a; see also App.70a. The

requested monitor, too, would “operate[] her own

bureaucracy to replace the state agency for the length of

the litigation.” App.72a. Practical experience showed that

such “[i]ntervention inexcusably exhausts judicial

resources, usurps state and local authority, and creates

disputes that polarize the judiciary.” App.77a. At bottom,

“[t]he voluminous record in this case show[ed] that West

Virginia’s foster care system is a complex administrative

system that properly relies on the executive, legislative,

and judicial branches of state government.” App.82a.

“The relief requested” would push these actors aside by

“requir[ing] th[e] court to create state policy.” App.82a.

Respondents appealed the dismissal and Petitioners

conditionally cross-appealed the class-certification order.

App.11a. The Fourth Circuit reversed again. App.7a.

First, the Fourth Circuit empowered the district court

to serve as the State’s “manager or policy planner,”

equipped to oversee Respondents’ large-scale federal

intervention. App.18a (cleaned up). It concluded that “the

federal judiciary not only holds the power, but a duty, to

implement, oversee, and administer reform of state

institutions that violate the federal rights of citizens.”

App.20a. This “comprehensive policy reform” could be

targeted at all manner of “state administration.” App.21a.

The court sought support in rather recent judicial

practices. App.14a. Since the 1950s, courts across the

country had purportedly managed failing state

institutions by way of structural injunction. App.14a-16a.

Modern prevalence—not founding-era history—thus

justified total judicial takeovers.

Perhaps sensing the expansiveness of its view, the

panel then identified three “guardrails” that it thought

would “guarantee” lower courts won’t exceed their Article

III power. App.24a-25a. The court stressed how district

courts should (1) limit remedies to the scope of the

violation, (2) consider state and local interests in crafting

a remedy, and (3) not let injunctions live on forever.

App.24a-26a. In other words, the court thought the

district court could clean up Petitioners’ Article III

concerns on the back end of a lawsuit—even though

standing is a front-end concern.

Second, even though class certification is a “central”

issue for “broad-sweeping policy reforms,” a majority

declined to entertain Petitioners’ conditional cross-appeal.

App.56a (Rushing, J., dissenting in part). According to the

majority, the reversal on standing “effectively” made the

class certification “interlocutory and thus unreviewable”

considering “the time restrictions governing such appeals

in Federal Rule of Civil Procedure 23(f).” App.41a

(majority op.). The majority thus set aside, “mid-opinion,”

“significant questions about whether [Respondents’]

contentions are actually common to every member of

these broadly defined classes.” App.58a (Rushing, J.,

dissenting in part).

Concurring in part of the judgment and dissenting

from the rest, Judge Rushing explained why the court

could have and should have evaluated the

class-certification decision: the class-certification order

had merged into the judgment. App.51a. But she also

reflected on how “two different district court judges in this

case now have expressed concerns about their authority to

interfere with state institutions as radically as

[Respondents] demand.” App.48a. “[T]he judges’ sense

that they were being asked to stray beyond their

purview,” she stressed, “was legitimate.” App.48a.

REASONS FOR GRANTING THE PETITION

The Article III Question Warrants Review.

By giving the district court the power to overtake a

vast state institution, the Fourth Circuit “transform[ed]

the least dangerous branch into the most dangerous one.”

Jenkins, 515 U.S. at 132 (Thomas, J., concurring). In that

way, it “has so far departed from the accepted and usual

course of judicial proceedings” that it warrants this

Court’s involvement. SUP. CT. R. 10(a). This Court should

intervene to return the judiciary in its appropriate role

and preserve federal courts’ credibility.

“The

Constitution affords federal courts considerable power,

but it does not establish government by lawsuit.” United

States v. Texas, 599 U.S. 670, 704 (2023) (Gorsuch, J.,

concurring) (cleaned up).

Courts lack the equitable power to take over

state programs.

Article III standing restrains courts’ power on the

“front end” of every lawsuit. Texas, 599 U.S. at 703-04

(Gorsuch, J., concurring). It is “built on a single basic

idea—the idea of separation of powers”—and “prevent[s]

the judicial process from being used to usurp the powers

of the political branches.” Id. at 675-76 (cleaned up). It

serves to protect federalism, too. “[W]hat the federal

courts cannot do at the federal level they cannot do against

the States; in either case, Article III courts are

constrained by the inherent constitutional limitations on

their powers.” Jenkins, 515 U.S. at 133 (Thomas, J.,

concurring) (cleaned up). Standing thus requires a

plaintiff to “clearly allege facts demonstrating” three

familiar elements: that she has “(1) suffered an injury in

fact, (2) that is fairly traceable to the challenged conduct

of the defendant, and (3) that is likely to be redressed by

a favorable judicial decision.” Spokeo, Inc. v. Robins, 578

U.S. 330, 338 (2016) (cleaned up). This petition concerns

the last.

“Redressability requires that the court be able to

afford relief through the exercise of its power.” Haaland

v. Brackeen, 599 U.S. 255, 294 (2023) (cleaned up). Where

a federal court is powerless to redress an injury, the

plaintiff lacks standing. Texas, 599 U.S. at 677-78; see also

id. at 704 (Gorsuch, J., concurring). So, embedded in the

redressability analysis is a threshold question: does the

court even have the power to remedy the alleged injury?

See, e.g., id. at 676-78.

Respondents look to enlist federal courts’ equitable

power. To be sure, courts have equitable power to enter

injunctions against state agencies—just not structural

injunctions that require courts to run state governments

top-to-bottom. The Supreme Court developed structural

injunctions in the 1950s and 1960s in response to a

constitutional crisis. Yoo, supra, at 1130; accord App.14a.

It “surrounded its discussion with the aura of tradition”—

grounding the structural injunction in “traditional

attributes of equity power,” recognizing that “equitable

principles” must guide lower courts. Yoo, supra, at 1131,

1161 (cleaned up).

Yet those “equitable principles” have limits defined by

history. CASA, 606 U.S. at 846-47; Texas, 599 U.S. at 676.

While “flexible,” “equitable authority is not freewheeling.”

CASA, 606 U.S. at 841. A federal court’s ability to

entertain suits “in equity” goes only so far as “equitable

remedies traditionally accorded by courts of equity at our

country’s inception.” Id. (cleaned up). Without a

“founding-era” “historical pedigree,” a remedy “falls

outside the bounds of a federal court’s equitable

authority.” Id. at 847.

A full-scale judicial takeover of a state agency and

program is “at odds with the history and tradition of the

equity power and the Framers’ design.” Jenkins, 515 U.S.

at 126 (Thomas, J., concurring). In fact, “the role of the

courts in the supervision of public institutions is very

largely the product of recent remedial innovation.”

Donald L. Horowitz, Decreeing Organizational Change:

Judicial Supervision of Public Institutions, 1983 DUKE

L.J. 1265, 1269 (1983). As one lower court has put it,

history shows “it is beyond the power of an Article III

court to order, design, supervise, or implement … [a]

requested remedial plan … [that] would necessarily

require a host of complex policy decisions entrusted, for

better or worse, to the wisdom and discretion of the

executive and legislative branches.” Juliana v. United

States, 947 F.3d 1159, 1171 (9th Cir. 2020).

1. At the founding, English equity courts had severely

limited power. An outgrowth of the Crown, the equity

courts entertained only “recognized categories of cases,”

and “each of these specific actions … called for a specific

equitable remedy.” Jenkins, 515 U.S. at 127 (Thomas, J.,

concurring). Blackstone—the primary authority for the

American colonists in defining equity—“described the

English courts of equity as carefully restrained by

precedents and rules.” Yoo, supra, at 1152. He warned

that expansive equitable remedies would threaten the rule

of law and result in arbitrary government. Jenkins, 515

U.S. at 127-28 (Thomas, J., concurring) (citing 3 W.

BLACKSTONE, COMMENTARIES ON THE LAWS OF

ENGLAND 436 (1768)).

Too, an all-encompassing structural injunction looks

“radically different from the injunctions traditionally

issued by courts of equity.” Brown v. Plata, 563 U.S. 493,

554 (2011) (Scalia, J., dissenting). Those injunctions

“usually required ‘a single simple act.’” Int’l Union,

United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 841

(1994) (Scalia, J., concurring) (quoting H. MCCLINTOCK,

HANDBOOK OF THE PRINCIPLES OF EQUITY § 15 (2d ed.

1948)). In fact, the court of chancery held a “historical

prejudice” “against rendering decrees which called for

more than a single affirmative act.” Id. (cleaned up). And

after a party complied with an order, “the court did not

engage in any ongoing supervision of the litigant’s

conduct, nor did its order continue to regulate his

behavior.” Id.

2. Against this backdrop, “the Framers approached

equity with suspicion.” Jenkins, 515 U.S. at 128 (Thomas,

J., concurring). Thomas Jefferson pointedly described the

driving concern: “Relieve the judges from the rigour of

text law, and permit them, with pretorian discretion, to

wander into it[s] equity, and the whole legal system

becomes incertain.” 9 PAPERS OF THOMAS JEFFERSON 71

(J. Boyd ed., 1954).

This suspicion permeated the ratification debates.

Anti-Federalists sharply criticized the Constitution’s

grant of judicial power to “Cases, in Law and Equity.”

Yoo, supra, at 1155-1161. They feared that judges might

have unfettered discretion to decide cases on feeling, not

fact—a fear that the equity power might “be used, as it

sometimes is now, in structural reform cases.” Id. at

1155-56; see Jenkins, 515 U.S. at 128-129 (citing 2 THE

COMPLETE ANTI–FEDERALIST 322 (H. Storing ed. 1981)).

The Federalists agreed and moved to reassure them:

equity would be restricted by “rules and precedents” “[t]o

avoid … arbitrary discretion.” THE FEDERALIST NO. 78,

at 471 (Alexander Hamilton) (Clinton Rossiter ed., 1961);

see also id. NO. 80, at 479-80 (Alexander Hamilton); Yoo,

supra, at 1157-58. And Hamilton “described Article III

‘equity’ as a jurisdiction over certain types of cases rather

than as a broad remedial power.” Jenkins, 515 U.S. at 130

(Thomas, J., concurring).

So the Constitution was “sold” with a very narrow

understanding of equitable power. See Jenkins, 515 U.S.

at 126 (Thomas, J., concurring); see also Alden v. Maine,

527 U.S. 706, 715-24 (1999).

The idea of a sweeping structural injunction would

have been deeply offensive to that principle.

Comprehensive structural injunctions push the judiciary

outside of the Founders’ understanding of courts’ rightful

lane. Hamilton perceived the judiciary to be “the least

dangerous” branch precisely because it could not do what

the executive and legislative branches could. THE

FEDERALIST NO. 78, at 465-66 (Alexander Hamilton). It

“has no influence over either the sword or the purse[,] no

direction either of the strength or of the wealth of the

society, and can take no active resolution whatever.” Id.

Unlike the executive and legislative branches, the

judiciary has “merely judgment” to wield and “must

ultimately depend upon the aid of the executive arm even

for the efficacy of its judgments.” Id. And James Madison

understood the stakes: “Were the power of judging joined

with the legislative, the life and liberty of the subject

would be exposed to arbitrary control, for the judge would

then be the legislator. Were it joined to the executive

power, the judge might behave with all the violence of an

oppressor.” THE FEDERALIST NO. 47, at 303 (James

Madison) (quoting Montesquieu). Thus, “substantial

separation of powers barriers [exist] to a suit seeking an

injunction to reform administrative procedures.” Allen v.

Wright, 468 U.S. 737, 766 (1984).

3. Additionally, the Court has “no precedent for a

lawsuit like this.” Texas, 599 U.S. at 686. Courts have

used injunctions to compel specific, discrete tasks, like

providing a law library for prisoners or implementing a

specific level of staffing in a state-run health facility. At

the same time, the Court has steadily limited the scope of

structural injunctions, with an eye toward federalism and

separation of powers. See Parkin, supra, at 185-86 (noting

that modern precedent embodies a deep skepticism of

institutional reform litigation). And the Court has never

endorsed the idea that a comprehensive, full-takeover

structural injunction is an available equitable remedy at

all.

Such an injunction is contrary to what this Court has

said about the judiciary’s “properly limited” role in “our

constitutional system.” Texas, 599 U.S. at 675-76. As the

district court recognized, federal judges don’t possess

“some amorphous power to supervise the operations of

government” and “reimagine” them “from the ground up.”

Whole Woman’s Health, 595 U.S. at 40 (cleaned up).

“There simply are certain things that courts, in order to

remain courts, cannot and should not do.” Jenkins, 515

U.S. at 132 (Thomas, J., concurring). And “run[ning]”

programs that fall within the heartland of state authority

is one of them. Plata, 563 U.S. at 565 (Alito, J., dissenting).

After all, “the judicial power is the power to decide cases

for parties, not questions for everyone.” Texas, 599 U.S.

at 694 (Gorsuch, J., concurring) (cleaned up).

This Court’s restraints on scope are consistent with

that idea. The Court has emphasized “the very limited

role that courts should play in the administration of [state]

facilities,” Block v. Rutherford, 468 U.S. 576, 584 (1984),

and directed lower courts to “take into account the

interests of state and local authorities in managing their

own affairs, consistent with the Constitution,” Milliken v.

Bradley (“Milliken II”), 433 U.S. 267, 280-81 (1977); see

also City of Los Angeles v. Lyons, 461 U.S. 95, 112 (1983).

It has also cautioned that judges must resist the natural

“tendency to believe that their individual solutions to often

intractable problems are better and more workable than

those of the persons who are actually charged with and

trained in the running of the particular institution under

examination.” Bell v. Wolfish, 441 U.S. 520, 562 (1979).

“[P]rinciples of federalism require that state officials with

front-line responsibility for administering [a] program be

given latitude and substantial discretion.” Frew v.

Hawkins, 540 U.S. 431, 442 (2004).

And though the Court has sometimes tolerated

intrusive structural injunctions, it has never endorsed one

that seizes every facet of a state program like the one here.

See Bell, 441 U.S. at 562 (warning federal courts against

becoming “enmeshed in the minutiae of [agency]

operations”). The injunction in Plata—this Court’s most

recent institutional reform case—didn’t go that far. Plata,

563 U.S. at 509-10, 530-34. The injunction there ordered

one thing: reduce prison populations within two years. Id.

It left the State “substantial flexibility” and discretion on

how to achieve that goal. Id. at 532-33.

***

History and precedent both reflect a healthy realism

that “judges … are human.” Bell, 441 U.S. at 562. As

humans, they’ll naturally believe that they can fix

seemingly imperfect state programs. Id. Yet that

“temptation” is precisely what prompted the Founders to

station Article III at the door, and this Court—time and

again—to turn courts back when they overstayed their

welcome. Lewis v. Casey, 518 U.S. 343, 388 (1996)

(Thomas, J., concurring).

The Fourth Circuit distorted the judiciary’s

constitutional role.

The Fourth Circuit “succumb[ed]” to that “great”

“temptation.” Lewis, 518 U.S. at 388 (Thomas, J.). It

overlooked history and tradition, and it misinterpreted

this Court’s precedent. In the Fourth Circuit’s view, not

only can courts commandeer state government, but

indeed they must. App.7a, 20a. And in doing so, they

should act less like a judge and more “like a manager or

policy planner.” App.18a (cleaned up); contra O’Shea v.

Littleton, 414 U.S. 488, 501 (1974) (rejecting an injunction

that would compel “continuous supervision by the federal

court over the conduct of the [state entity] petitioners”).

Applying a methodology the Court rejected just last

term, CASA, 606 U.S. at 845-46, the Fourth Circuit

started in the recent past—skipping over any inquiry into

founding-era history. Had the Court started from the

beginning, it may have seen the error of its ways. But it

instead picked up in 1955, when structural injunctions

were born. App.14a. Because it didn’t consider all the

relevant history, App.14a-16a, it had no baseline to know

the difference between a practice with a founding-era

pedigree and one without.

The Fourth Circuit compounded the problem by

mistaking prevalence for precedent. See App.15a-17a.

Courts do not gain a power by exercising it often—

especially when it comes to jurisdictional limits like

standing. United States v. L.A. Tucker Truck Lines, Inc.,

344 U.S. 33, 38 (1952). And equitable power isn’t

measured by how many courts have exercised it—it’s

measured by history. CASA, 606 U.S. at 846-47.

The Fourth Circuit’s approach also inverts Supreme

Court precedent. The Court has upheld structural

injunctions precisely because lower courts abstained from

acting as managers, leaving ample discretion to state

officials on implementation. E.g., Plata, 563 U.S. at 531-33

(finding injunction gave State “substantial flexibility” on

how to comply); Hutto v. Finney, 437 U.S. 678, 688 (1978)

(recognizing 30-day limit for compliance “present[ed]

little danger of interference with prison administration”);

Milliken II, 433 U.S. at 291 (noting that the district court’s

order did not attempt a restructuring). Plata—the panel’s

primary authority—proves the point. Plata, 563 U.S. at

531-33. An order that sets an outcome and leaves the

State to decide how to reach it is an exercise of judicial

power. In contrast, when a court “injected itself by

injunctive decree into the internal disciplinary affairs of

[a] state agency,” that court “departed” from the

“principles” governing equitable relief. Rizzo v. Goode,

423 U.S. 362, 380 (1976).

The

Fourth

Circuit’s

“guardrails”—tailoring,

sensitivity, and modifiability—are also no help, as they go

to degree, not kind. They come from cases that only

considered scope of an assumedly available remedy, and

they calibrate on the back end of a case how much control

is proportionate to the violation found. In other words,

they go to a different question from the one this case

presents—that is, whether taking complete control is an

equitable remedy a federal court may exercise at all.

History answers the relevant question by looking to the

kind of order sought, not its size relative to the underlying

violation. A court of equity’s traditional “prejudice …

against rendering decrees which called for more than a

single affirmative act,” Bagwell, 512 U.S. at 841 (Scalia, J.,

concurring) (cleaned up), does not soften just because the

affirmative acts are proportionate to the harm.

And in listing its three “guardrails,” the panel ignored

the ones that truly matter: the separation of powers and

federalism principles embedded in Article III. Article III

provides the threshold constraints that ask whether

power exists before any court decides how carefully to

wield it. Courts don’t make law or policy, or execute

either. See Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256,

272 (1979); Marbury v. Madison, 5 U.S. (1 Cranch) 137,

170 (1803). Just as they don’t control other branches of

the federal government, TransUnion v. Ramirez, 594

U.S. 413, 423-24 (2021), federal courts don’t run state

governments, Whole Woman’s Health, 595 U.S. at 40.

The panel also did not solve any of its problems when

it tried to tie its decision to Respondents’ request for

declaratory relief. App.30a-32a. All roads still lead back

to the troublesome injunctive relief, as the majority

speculated that a declaratory judgment would—at best—

prompt some unidentified suit that would in turn help

Respondents secure their injunctive relief in some

unspecified way. App.31a. Yet as Judge Rushing noted,

“a judgment’s ‘possible, indirect benefit in a future

lawsuit’ does not preserve standing.” App.47a n.18

(Rushing, J., dissenting in part) (quoting United States v.

Juvenile Male, 564 U.S. 932, 937 (2011) (per curiam)).

“[P]sychic satisfaction is not an acceptable Article III

remedy,” Steel Co. v. Citizens for a Better Env’t, 523 U.S.

83, 107 (1998), and a declaration that operates only by

prompting an unidentified future suit against unidentified

parties is nothing more than that. And anyway, “a

declaratory judgment … is the very kind of relief that

cannot alone supply jurisdiction otherwise absent.”

California v. Texas, 593 U.S. 659, 673 (2021). Even more

when the ultimate relief Respondents seek would require

the involvement of non-parties—most obviously, the

Legislature and its power to appropriate—who would not

even be bound by any eventual judgment. Id.

Nor can Respondents save their claims by pointing to

some lesser injunction. Respondents have never sought

partial relief or styled their requests as providing a menu

of mere options. They have insisted, repeatedly and by

design, that their injury is a single indivisible “risk of

harm” produced by “innumerable things” and curable

only through “systematic, structural change.” Jonathan

R. I, 41 F.4th at 323; C.A. Oral Arg. 29:11-29:13; App.29a.

Courts take a plaintiff’s theory of injury as he pleads it—

and the injury must “be redressed by the requested

judicial relief.” FDA v. All. for Hippocratic Med., 602 U.S.

367, 380 (2024) (emphasis added). Having defined their

injury as one that they say only a wholesale takeover can

cure, Respondents cannot now disclaim the takeover to

preserve their standing. Even the Fourth Circuit once

recognized as much. See Maryland v. USDA, 151 F.4th

197, 211 (4th Cir. 2025) (“[T]he broad remedy here

presents a redressability problem—not because that is

what the district court ordered, but because that was the

relief that plaintiffs requested in their complaint.”).

So the panel’s “unambiguous legal reality,” App.20a,

lacks history, tradition, precedent, and principle. That is

the kind of unmoored expansion of judicial power—in

contravention of this Court’s precedents—that this

Court’s review exists to address.

The Court should answer the question now.

Total takeovers worsen the practical problems with

institutional reform litigation—problems that members of

this Court have flagged for decades. These cases are

growing more frequent and more invasive. The time to

address them is now.

1. Structural injunctions that give courts total control

“ignore[] bedrock limitations on the power of Article III

judges, and take[] federal courts wildly beyond their

institutional capacity.” Plata, 563 U.S. at 550 (Scalia, J.,

dissenting).

They “turn[] judges into long-term

administrators of complex social institutions”—making

them “indistinguishable from the role ordinarily played by

executive officials.” Id. at 555. They “constrain[]”

“democratically-elected officials” “in their ability to fulfill

their duties,” and similarly “deprive future officials of

their designated legislative and executive powers.” Horne

v. Flores, 557 U.S. 433, 449 (2009) (emphasis added)

(cleaned up). And they invite “judges to indulge policy

preferences.”

Plata, 563 U.S. at 558 (Scalia, J.,

dissenting).

They do all this without institutional

competence or effective tools for enforcement. Id.;

Jenkins, 515 U.S. at 132 (Thomas, J., concurring). The net

result is a severe “detract[ion] from the independence and

dignity of the federal courts.” Jenkins, 515 U.S. at 133

(Thomas, J., concurring).

Had the district court issued the injunction here, it

would have become an Article III Department of Human

Services official. Plata, 563 U.S. at 555-58 (Scalia, J.,

dissenting). The court would have to, among other things,

oversee (1) foster placements for 6,118 foster children, (2)

the day-to-day work of and training requirements for

caseworkers and supervisors, (3) the contents of policies

and procedures, (4) the administration of therapeutic

services, (5) foster home recruitment efforts across the

State, and (6) hiring of personnel. These duties would

require the court to continuously engage with budgetary

decisions, social services operations, and administrative

priorities—all of which are entrusted to state officials.

The judge would become entwined with local politics,

bureaucratic limitations, and shifting resource constraints

for years and possibly decades. State officials would have

no real room to exercise their discretion.

An injunction would also hinder, not help, ongoing

efforts to improve West Virginia’s foster-care system by

usurping control. It would impose a shadow bureaucracy,

vesting lawyers with veto power over state policy. And if

the plaintiffs determine the State’s efforts aren’t good

enough, the Department would be forced to start anew or

face a contempt sanction. Court intervention would “sap[]

the power and responsibility” of Department officials “by

limiting what they can do and by telling them what they

must do.” SANDLER & SCHOENBROD, supra, at 144.

With the court’s new responsibilities would come

intractable problems that it is ill-suited to solve. The

district court is no expert in foster care, childhood trauma

and development, the delivery of social services,

bureaucratic

management

structures,

training

procedures, foster home recruitment, or state budgets.

“Three years of law school and familiarity with pertinent

Supreme Court precedents give no insight whatsoever

into the management of social institutions.” Plata, 563

U.S. at 558 (Scalia, J., dissenting).

The district court also faces structural limitations that

handicap its capacity to implement the plaintiffs’

requested relief. Reforming West Virginia’s foster-care

system requires the opinion and expertise of many, not

just the parties here. Yet our adversarial system only lets

the litigants speak. When it comes to enforcement, the

court has only one option—a contempt proceeding—which

is too blunt a punishment to achieve a finely tuned fostercare system.

Perhaps most troubling, an injunction would disrupt

State officials’ political accountability. West Virginia’s

“voters [will] lose the ability to communicate with

government” and to make their voices heard—to vote out

incompetent leaders and reelect effective ones. SANDLER

& SCHOENBROD, supra, at 157. Unelected outsiders, not

local voters and their duly elected representatives, will

decide what happens to West Virginia’s foster children.

See id. at 159. And in this way, an injunction, “which is

justified by opening up government to those who have

been disenfranchised,” will “disenfranchis[e] others.” Id.

at 158. But “[t]he political process”—not the courtroom—

is “the appropriate forum in which to air policy

disagreements.” Seven Cnty. Infrastructure Coal. v.

Eagle Cnty., 605 U.S. 168, 192 (2025).

2. This case isn’t an anomaly, either. Comprehensive

structural injunctions of this kind are proliferating and

expanding. Remember how this all started: institutionalreform decrees in the desegregation cases arose from

officials’ open defiance of a constitutional command this

Court had itself pronounced, with remedial tools the Court

described as extraordinary and triggered only by a school

authority’s default. Swann v. Charlotte-Mecklenburg Bd.

of Educ., 402 U.S. 1, 16 (1971). The Court has since said

that those powers were a departure to be wound down, not

a template to be extended. Bd. of Educ. of Okla. City Pub.

Schs. v. Dowell, 498 U.S. 237, 247-48 (1991); Freeman v.

Pitts, 503 U.S. 467, 489 (1992); Jenkins, 515 U.S. at 88-89.

But what began as extraordinary, isolated interventions in

the 1950s has metastasized into a standing feature of state

governance. CASEY FAM. PROGRAMS, supra. Today,

dozens of states operate parts of their child welfare

systems under continuing federal control, with no end in

sight for many.

Since the 1980s, at least thirty-four states have faced a

child welfare reform action, a case brought by or on behalf

of children in foster care seeking comprehensive system

reform. CASEY FAM. PROGRAMS, supra. Ten have been

defendants in multiple lawsuits. Id. At least thirty-four

lawsuits remain active in twenty-six states. Id.; Decision

and Order, Mary B. v. Dompeling, No. 3:22-cv-00129 (D.

Alaska Mar. 31, 2026), ECF No. 461 (entering judgment

for the State after trial). Of the active cases, thirteen cases

remain pending resolution and twenty-one have an active

consent decree or structural injunction in place. CASEY

FAM. PROGRAMS, supra. Only eleven jurisdictions have

successfully exited court oversight in the last ten years.

Id. On average, these cases last eleven years—longer

than the time most children spend in foster care. Id. And

these types of structural injunctions aren’t effective. See

generally SANDLER & SCHOENBROD, supra, at 150-153

(discussing debate on success of institutional reform

decrees). Respondents’ counsel recently sued the State of

Tennessee claiming its foster-care system was “just as

bad, if not worse,” than before sixteen years of judicial

management. Class Action Compl. at ¶¶ 3-8, Keira M. v.

Quin, No. 3:25-cv-00566 (M.D. Tenn.), ECF No. 1.

3. With child-welfare class actions increasing (and

producing little in the way of results), it’s “easy to see

why” “on multiple occasions, and across administrations,”

parties have asked the Court “to consider the propriety

of” such an expansive equitable remedy. CASA, 606 U.S.

at 840; see, e.g., Pet. for Cert. at 2-3, Faust v. B.K., 589

U.S. 1275 (2020) (No. 19-765); Pet. for Cert. at 3, Sault Ste.

Marie Tribe v. Michigan, 146 S. Ct. 1486 (2026) (No.

25-165). But none of those prior petitions have had such a

clean vehicle.

Here, for the first time, the Court has two

comprehensive opinions—going in opposite directions—

confronting the antecedent question of Article III power,

not merely the scope of an injunction. And as with

universal injunctions, pervasiveness has only sharpened

the stakes: “[a]s the number” of these takeovers “has

increased, so too has the importance of the issue.” CASA,

606 U.S. at 840. This Court should take the opportunity

and speak now.

II.

The Class Certification Question Warrants

Review.

Beyond the Article III problem, the Fourth Circuit

also deepened a split over when and how appellate courts

can review class-certification decisions. And it took a

position that will needlessly send cases shuttling back and

forth between appellate courts and district courts. The

Court should grant the petition to confirm that conditional

cross-appeals from class certification can and should be

heard when circuit courts reverse a final judgment.

The Fourth Circuit ignored the merger rule.

1. Federal law usually allows a party to appeal from

only a final judgment. See 28 U.S.C. § 1291. “The general

rule is that a party is entitled to a single appeal, to be

deferred until final judgment has been entered, in which

claims of district court error at any stage of the litigation

may be ventilated.” Quackenbush v. Allstate Ins. Co., 517

U.S. 706, 712 (1996) (cleaned up). “[B]y preventing

piecemeal appeals,” the rule “promotes the efficient

administration of justice and preserves the proper balance

between trial and appellate courts.” Geo Grp., Inc. v.

Menocal, 607 U.S. 438, 444 (2026) (cleaned up). It

“avoid[s] the obstruction to just claims that would come

from permitting the harassment and cost of a succession

of separate appeals.” Cobbledick v. United States, 309

U.S. 323, 325 (1940).

The merger rule makes the final-judgment principle

possible. Once the “district court enters a final judgment

in a case, interlocutory orders rendered in the case

typically merge with the judgment for purposes of

appellate review.” Shannon v. Gen. Elec. Co., 186 F.3d

186, 192 (2d Cir. 1999) (Sotomayor, J.). So “[d]esignation

of the final judgment confers appellate jurisdiction over

prior interlocutory orders that merge into the final

judgment.” FED. R. APP. P. 3 advisory committee’s note

to 2021 amendment. The Federal Rules expressly adopt

this concept, explaining that the “notice of appeal

encompasses all orders that … merge into the designated

judgment or appealable order.” FED. R. APP. P. 3.

The merger rule applies seamlessly when the winner

takes all—but conditional cross-appeals allow it to work in

other circumstances, too. See Branch v. Smith, 538 U.S.

254, 261 (2003). Often, a prevailing party suffers an early

defeat by interlocutory order—like the class-certification

here, Coopers & Lybrand v. Livesay, 437 U.S. 463, 476

(1978)—that might still warrant review if the prevailing

party suddenly becomes the losing one on appeal. Using

a cross-appeal can “justify a remedy in favor of an

appellee.” Greenlaw v. United States, 554 U.S. 237, 24445 (2008). So where a party won the war—but lost a

battle—he makes the cross-appeal “conditional” on

reversal of the judgment.

Beyond conditional cross-appeals or appeals from a

final-judgment loss, class actions have another avenue of

review: Federal Rule of Civil Procedure 23(f). That rule

affords litigants a special opportunity to appeal class

certification questions before any final judgment. See

FED. R. CIV. P. 23(f); FED. R. CIV. P. 23 advisory

committee’s note to 1998 amendment.

Under the

provision, a party may “petition” for “permission to

appeal” within 14 days of any certification or

decertification decision. FED. R. CIV. P. 23(f). The court

of appeals then applies its “unfettered discretion” to

decide whether to hear the appeal, applying “any

consideration” it “finds persuasive.” FED. R. CIV. P. 23

advisory committee’s note to 1998 amendment.

2. Petitioners did not take Rule 23(f)’s optional

shortcut, but they brought a conditional cross-appeal of

the class-certification order when they obtained final

judgment in their favor. That choice was consistent with

the merger and cross-appeal rules. Taking up all the

issues at once provides for efficient “ventilat[ion]” of all

“district court error[s]” in one go. Quackenbush, 517 U.S.

at 712 (cleaned up). Indeed, some courts require parties

to file conditional cross-appeals to avoid waiver on

remand. Art Midwest Inc. v. Atl. Ltd. P’ship XII, 742 F.3d

206, 211-12 (5th Cir. 2014) (collecting cases). “This

widely-accepted rule furthers the important value of

procedural efficiency.” Nw. Ind. Tel. Co., Inc. v. FCC, 872

F.2d 465, 470 (D.C. Cir. 1989) (cleaned up). In contrast,

decoupling these decisions produces the piecemeal

appellate practice Congress intended to avoid.

The majority showed no concern for the procedural

efficiency of the cross-appeal. It instead held that reversal

required it to unmerge the class-certification decision

from the final judgment—leaving appellate review for

another day. Petitioners must now proceed—absent this

Court’s review—to a class-wide trial in the face of

“extensive problems with the district court’s [certification]

order.” App.56a (Rushing, J., dissenting in part). This

outcome “turns [courts’ usual] approach to conditional

cross-appeals on its head,” App.51a, creating delay and

waste from a rule expressly designed to avoid both. And

the majority’s choice to take this approach all on its own,

without any suggestion from either party, is still more

reason to reverse. See Margolin v. Nat’l Ass’n of Immigr.

Judges, 146 S. Ct. 1285, 1288 (2026) (summarily reversing

“the Fourth Circuit for violating this party-presentation

principle”); Clark v. Sweeney, 607 U.S. 7, 8 (2025) (same).

What’s more, the majority’s decision ignores how

appeals after final judgment are taken as a matter of right.

Rule 3—titled “Appeal as of Right—How Taken”—does

not distinguish between a direct appeal and a

cross-appeal. See generally FED. R. APP. P. 3. Both start

the same way—by filing a notice of appeal with the district

clerk. FED. R. APP. P. 3(a)(1). Because “[t]he notice of

appeal encompasses all orders that … merge into the

designated judgment,” FED. R. APP. P. 3(c)(4),

cross-appeals—conditional or not—are taken as a matter

of right. And courts have “no more right to decline the

exercise of jurisdiction which is given, than to usurp that

which is not given.” Cohens v. Virginia, 19 U.S. (6 Wheat)

264, 404 (1821). These principles explain why the Fourth

Circuit has previously said that it “must consider …

conditional cross-appeals.” Bank of Montreal v. Signet

Bank, 193 F.3d 818, 826 (4th Cir. 1999) (emphasis added).

While the majority invoked Rule 23(f), its decision

conflicts with that rule, too. Rule 23(f) was adopted to

“expan[d]”—not displace—“opportunities to appeal”

class-certification decisions. FED. R. CIV. P. 23(f) advisory

committee’s note to 1998 amendment. It was necessary

because “[a]n order denying certification may confront the

plaintiff with a situation in which … an individual claim …

is far smaller than the costs of litigation.” Id. On the other

hand, “[a]n order granting certification … may force a

defendant to settle rather than incur the costs of

defending a class action and run the risk of potentially

ruinous liability.”

Id.

Weighty class-certification

decisions thus dictate how—and if—a claim is litigated.

Nothing in Rule 23(f) bars appellate courts from

reviewing

conditional

cross-appeals

challenging

class-certification orders.

“Final-judgment appeals

remain available to review a grant or denial of class

certification on appeal from a final judgment that disposes

of the entire action, merging in the judgment in the way

that many other interlocutory orders merge in a final

judgment.”

15B WRIGHT & MILLER’S FEDERAL

PRACTICE & PROCEDURE § 3914.19 (3d ed. 2026). If

anything, the Rule’s appellate review expansion suggests

courts should be more eager to take up merged

class-certification orders when properly presented in a

conditional cross-appeal. Rule 23(f) is discretionary

review, earlier on, on a faster schedule. Thus, reading it

to displace review of a final judgment guts the procedural

efficiency the Rules promote.

The decision deepens a circuit split over

class-certification review.

The majority below isn’t alone, but its decision

crystallizes a split. The majority leaned on decisions from

the Ninth and Sixth Circuits. It ignored the Seventh and

D.C. Circuits, which went the other way.

Start with the mistaken side of the split: the Ninth and

Sixth Circuits.

The majority here principally relied on the Ninth

Circuit’s decision in Blake v. City of Los Angeles, 595 F.2d

1367 (9th Cir. 1979). There, the Ninth Circuit decided it

wouldn’t be “appropriate … to decide appellees’

cross-appeal challenging the class certification order”

because it “remand[ed] the case for further proceedings”

and “the class certification order may be modified.” Id. at

1386. Even Blake might take a less extreme approach

than the Fourth Circuit did. Indeed, in some intra-circuit

inconsistency, later cases have hinted that the court might

have discretion to review certification on a cross-appeal in

the right circumstances. See, e.g., Klawonn v. Bd. of Dirs.

for the Motion Picture Indus. Pension Plans, No. 252874, 2026 WL 2364541, at *1 (9th Cir. Aug. 14, 2026)

(considering

conditional

cross-appeal

class

certification); Vizcaino v. U.S. Dist. Ct. for W. Dist. of

Wash., 173 F.3d 713, 717-18 (9th Cir.), amended by 184

F.3d 1070 (9th Cir. 1999) (explaining that the proper

method to challenge class certification when a defendant

prevails on the merits is to conditionally cross-appeal).

But Blake’s rule is a break from the merger doctrine all

the same.

The Sixth Circuit has adopted a nondiscretionary

version of the rule: reversal unmerges interlocutory

orders from the final judgment in every case. In Milan

Express Company v. Western Surety Company, the court

reasoned that, because it “reverse[d] the judgment of the

district court dismissing plaintiffs’ case …, there [was] no

longer a final judgment to support [its] review of

interlocutory orders, even though such a judgment existed

at the outset of the appeal.” 886 F.2d 783, 785 n.1 (6th Cir.

1989) (cleaned up). So, the court concluded that its

“reversal of the judgment below prevent[ed it] from

reviewing the district courts’ denial of class certification.”

Id.

In contrast, the D.C. and Seventh Circuits will decide

appeals of merged class-certification orders.

In Fink v. National Savings and Trust Company, the

D.C. Circuit reversed a summary judgment order. 772

F.2d 951, 953 (D.C. Cir. 1985). Without raising any doubts

from the decision’s interlocutory nature, the court

proceeded to review and remand the district court’s denial

of class certification. Id. at 960-61; see also Hartman v.

Duffey, 19 F.3d 1459, 1466 (D.C. Cir. 1994) (“[T]he fact

that the USIA was the prevailing party on the merits …

would not have precluded it from challenging class

certification on conditional cross-appeal.”).

The Seventh Circuit likewise reversed a summary

judgment order and then resolved a conditional

cross-appeal from an order certifying a class. Council 31,

Am. Fed’n of State, Cnty. & Mun. Emps. v. Ward, 978

F.2d 373, 380 (7th Cir. 1992). The court concluded that its

reversal made the cross-appellant “adversely affected by

the district court’s order[] certifying the class,” thereby

“invigorating the cross-appeal and supporting [the

court’s] jurisdiction.” Id. And after Rule 23(f)’s adoption,

the Seventh Circuit stayed the course. The court has

acknowledged that an appellee can still “challenge the

district court’s class certification decision” through a

cross-appeal following reversal. Henry v. Hulett, 969 F.3d

769, 787 (7th Cir. 2020).

The D.C. and Seventh Circuits have it right: classcertification decisions merge into final judgments, and a

court of appeals must consider them when properly

presented. As the D.C. Circuit explained, “the traditional

values militating against piecemeal appeals [are] not …

served by declining to review the class certification back

at the beginning.” Hartman, 19 F.3d at 1467. Rule 23(f)

changes nothing. It is permissive, addressed to a window

before any judgment, and says nothing about review after

one. Yet the decision below reads that discretionary

shortcut as a bar—and in doing so sends a certified class

of every child who will ever enter West Virginia’s custody

to a potential class-wide trial. This Court should grant

review, resolve the conflict, and foreclose that outcome.

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted.

JOHN B. MCCUSKEY

Attorney General

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

mwilliams@wvago.gov

(304) 558-2021

HOLLY J. WILSON

Principal Deputy

Solicitor General

CALEB B. DAVID

Deputy Solicitor General

MATTHEW K. NIU

Bolton Caldwell Fellow

Counsel for Petitioners

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.