foster children plaintiffs' reply

No. 16-40482

In the United States Court of Appeals

for the Fifth Circuit

IN RE GREG ABBOTT, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF

TEXAS, CHRIS TRAYLOR, IN HIS OFFICIAL CAPACITY AS EXECUTIVE COMMISSIONER

OF THE HEALTH AND HUMAN SERVICES COMMISSION OF THE STATE OF TEXAS; JOHN

J. SPECIA, JR., IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE DEPARTMENT OF

FAMILY AND PROTECTIVE SERVICES OF THE STATE OF TEXAS,

PETITIONERS

On Petition for Writ of Mandamus to the United States District Court for the Southern District of Texas, No. 2:11-CV-00084,

The Hon. Janis Graham Jack, Presiding

RESPONSE TO PETITION FOR WRIT OF MANDAMUS

Sara Bartosz CHILDREN’S RIGHTS 330 Seventh Avenue, Fourth Floor New York, New York 10001 Marcia Robinson Lowry A BETTER CHILDHOOD, INC. 1095 Hardscrabble Road Chappaqua, New York 10514

Reagan W. Simpson R. Paul Yetter Dori Kornfeld Goldman Lonny Hoffman Christian J. Ward YETTER COLEMAN LLP 909 Fannin, Suite 3600 Houston, Texas 77010

Barry F. McNeil David A. Dodds HAYNES AND BOONE, LLP 2323 Victory Avenue, Suite 700 Dallas, Texas 75219

Attorneys for Respondents

Case: 16-40482 Document: 00513475829 Page: 1 Date Filed: 04/21/2016

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CERTIFICATE OF INTERESTED PERSONS

No. 16-40482

IN RE GREG ABBOTT, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF

TEXAS, CHRIS TRAYLOR, IN HIS OFFICIAL CAPACITY AS EXECUTIVE COMMISSIONER

OF THE HEALTH AND HUMAN SERVICES COMMISSION OF THE STATE OF TEXAS; JOHN

J. SPECIA, JR., IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE DEPARTMENT OF

FAMILY AND PROTECTIVE SERVICES OF THE STATE OF TEXAS,

PETITIONERS

The undersigned counsel of record certifies the following listed persons have

an interest in the outcome of this case. These representations are made in order that

the judges of this court may evaluate their possible recusal or disqualification:

1. Respondents are represented in the Fifth Circuit by:

Plaintiffs

Plaintiffs’ Counsel

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., by next friend John W. Cliff, Jr.;

Reagan W. Simpson R. Paul Yetter Dori Kornfeld Goldman Lonny Hoffman Christian J. Ward YETTER COLEMAN LLP 909 Fannin, Suite 3600 Houston, Texas 77010 Barry F. McNeil David A. Dodds HAYNES AND BOONE, LLP 2323 Victory Avenue, Suite 700 Dallas, Texas 75219 Sara Bartosz Christina W. Remlin CHILDREN’S RIGHTS 330 Seventh Avenue


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Plaintiffs


D. P., by next friend Karen J. Langsley; T. C., by next friend Paul Swacina

New York, New York 10001 Marcia Robinson Lowry A BETTER CHILDHOOD, INC. 1095 Hardscrabble Road Chappaqua, New York 10514

Additional counsel that represented Respondents in the district court are:

Plaintiffs


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., by next friend John W. Cliff, Jr.; D. P., by next friend Karen J. Langsley; T. C., by next friend Paul Swacina

Christina W. Remlin Aaron Finch Joshua Rosenthal Adam Dembrow Adriana Teresa Luciano Christina Wilson Elizabeth Pitman Ira Lustbader Jessica Polansky Melissa Cohen Patrick Almonrode Rachel Brodin Nili Sarah T. Russo Stephen Dixon William Kapell CHILDREN’S RIGHTS Christopher D. Porter YETTER COLEMAN LLP Richard Thaddeus Behrens HAYNES BOONE LLP


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2. Petitioners are represented in the Fifth Circuit by:

Defendants

Defendants’ Counsel

Greg G. Abbott, in his official capacity as Governor of the State of Texas; Chris Traylor, in his official capacity as Executive Commissioner of the Health and Human Services Commission of the State of Texas; John J. Specia, Jr., in his official capacity as Commissioner of the Dep’t of Family and Protective Services of the State of Texas

Ken Paxton Charles E. Roy Scott A. Keller Joseph D. Hughes Phillip A. Lionberger Thomas A. Albright OFFICE OF THE ATTORNEY

GENERAL

Additional counsel that represented Petitioners in the district court are:

Defendants

Defendants’ Counsel

Greg G. Abbott, in his official capacity as Governor of the State of Texas; Chris Traylor, in his official capacity as Executive Commissioner of the Health and Human Services Commission of the State of Texas; John J. Specia, Jr., in his official capacity as Commissioner of the Dep’t of Family and Protective Services of the State of Texas

Angela V. Colmenero Andrew B. Stephens Marc Rietvelt OFFICE OF THE ATTORNEY

GENERAL

/s/Reagan W. Simpson Reagan W. Simpson


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TABLE OF CONTENTS

Certificate of Interested Persons ............................................................................... ii

Table of Authorities ................................................................................................ vii

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

Statement of Facts ...................................................................................................... 1

Argument.................................................................................................................... 6

I. THE DISTRICT COURT COMMITTED NO ERROR, AND CERTAINLY

DID NOT CLEARLY ABUSE ITS DISCRETION, IN APPOINTING THE

SPECIAL MASTERS. ......................................................................................... 6

A. Appointing Masters To Assist In Planning, Developing, And Implementing Court-Ordered Reforms Is Proper Under Rule 53 And A Court’s Inherent Judicial Authority. .......................................... 6

1. Case law reflects the longstanding practice of using masters in situations similar to those in this case. ...................... 6

2. This Court has approved appointment of masters to assist in planning and implementing post-trial remedial orders. ........ 10

3. Appointment of masters at the remedial stage is particularly appropriate when remedies involve “polycentric problems” not as easily or effectively resolved through the traditional adjudicative process. ............. 12

4. The special masters are to aid the court in evaluating and implementing remedies, not to make liability decisions. ......... 15

B. The Order Does Not Direct The Special Masters To “Apply” The Wrong (Or Any) Constitutional Standard. ................................... 20

II. DEFENDANTS HAVE A FULLY ADEQUATE ALTERNATIVE REMEDY

ON APPEAL, AFTER FINAL JUDGMENT IS ENTERED BY THE

DISTRICT COURT. .......................................................................................... 23

A. The Masters’ Appointment Is Limited, Not “Open-Ended.” .............. 24


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B. Defendants’ “Fragmented” Process Argument Is A Red Herring. ................................................................................................ 24

C. Having To Pay For Special Masters Does Not Demonstrate Inadequacy Of Alternative Remedies. ................................................ 25

III. EVEN IF THE OTHER PREREQUISITES WERE SATISFIED, MANDAMUS

IS NOT APPROPRIATE UNDER THE CIRCUMSTANCES. ................................. 27

Conclusion & Prayer ................................................................................................ 30

Certificate of Compliance ........................................................................................ 32

Certificate of Service ............................................................................................... 33

Exhibits: 1. Plaintiffs’ Submission of Special Master Candidates 2. Appellants’ Opposed Motion to Stay Injunction Pending Appeal


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TABLE OF AUTHORITIES

Page(s)

Cases

Alberti v. Klevenhagen, 790 F.2d 1220 (5th Cir. 1986) ............................................................................ 23

Alexander S. v. Boyd, 113 F.3d 1373 (4th Cir. 1997) .............................................................................. 9

Amos v. Bd. of Sch. Dirs. of City of Milwaukee, 408 F.Supp. 765 (E.D. Wis. 1976) ..................................................................... 12

Bogard v. Wright, 159 F.3d 1060 (7th Cir. 1998) .............................................................................. 9

Brown v. Plata, 563 U.S. 493, 131 S. Ct. 1910 (2011) ......................................................... 8, 9, 30

Camp v. Gregory, 67 F.3d 1286 (7th Cir. 1995) .............................................................................. 23

Connor B. ex rel. Vigurs v. Patrick, 272 F.R.D. 288 (D. Mass. 2011) ......................................................................... 23

Costello v. Wainwright, 387 F.Supp. 324 (M.D. Fla. 1973), aff’d, 489 F.2d 1311 (5th Cir. 1974) ............................................................................................................... 9, 11

D.G. ex rel. Strickland v. Yarbrough, 278 F.R.D. 635 (N.D. Okla. 2011) ..................................................................... 23

DeShaney v. Winnebago Dep’t of Soc. Servs., 489 U.S. 189 (1989) ............................................................................................ 22

Doe v. Taylor Indep. Sch. Dist., 975 F.2d 137 (5th Cir. 1992) reh’g granted and opinion vacated on other grounds, 987 F.2d 231 (5th Cir. 1993) and on reh’g, 15 F.3d 443 (5th Cir. 1994) ............................................................................................. 22


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Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849 (5th Cir. 2012) ............................................................................. 22

Gary W. v. Louisiana, 601 F.2d 240 (5th Cir. 1979) ........................................................................ 10, 11

Griffith v. Johnston, 899 F.2d 1427 (5th Cir. 1990) ............................................................................ 22

Halderman v. Pennhurst State Sch. & Hosp., 446 F.Supp. 1295 (E.D. Pa. 1977) ...................................................................... 11

Halderman v. Pennhurst State Sch. & Hosp., 612 F.2d 84 (3d Cir. 1979) (en banc), rev’d on other grounds, 451 U.S. 1 (1981) ............................................................................................. 9, 10, 12

Hart v. Cmty. Sch. Bd. of Brooklyn, N.Y. Sch. Dist. No. 21, 383 F.Supp. 699 (E.D.N.Y. 1974) ................................................................ 13, 14

In re Holocaust Victim Assets Litig., 424 F.3d 132 (2d Cir. 2005) ................................................................................. 9

In re Pearson, 990 F.2d 653 (1st Cir. 1993) ................................................................................. 9

In re Peterson, 253 U.S. 300 (1920) .......................................................................................... 6, 7

Johnson v. Collins, 58 F.Supp.2d 890 (N.D. Ill. 1999), vacated on other grounds, 5 Fed. App’x 479 (7th Cir. 2001) .......................................................................... 23

K.H. ex rel. Murphy v. Morgan, 914 F.2d 846 (7th Cir. 1990) .............................................................................. 23

Kenny A. Winn v. Perdue, No. 1:02-cv-1686-MHS, 2004 WL 5503780 (N.D. Ga. Dec. 13, 2004) ................................................................................................................... 23

La Buy v. Howes Leather Co., 352 U.S. 249 (1957) ........................................................................................ 6, 19


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Labor/Community Strategy Ctr. v. Los Angeles County Metro. Transp., Auth., 263 F.3d 1041 (9th Cir. 2001), cert. denied, 535 U.S. 951 (2002) ...................... 9

LaShawn A. v. Dixon, 762 F.Supp. 959 (1991) ...................................................................................... 23

LaShawn A. by Moore v. Kelly, 990 F.2d 1319 (D.C. Cir. 1993) .......................................................................... 23

Local 28 of Sheet Metal Workers Int’l Ass’n v EEOC, 478 U.S. 421 (1986) .............................................................................................. 7

Montcalm Publ’g Corp. v. Commonwealth of Virginia, 199 F.3d 168 (4th Cir. 1999) ................................................................................ 9

Moore v. Leflore County Bd. of Election Comm’rs, 361 F.Supp. 609 (N.D. Miss. 1973), aff’d, 502 F.2d 621 (5th Cir. 1974) ................................................................................................................... 11

New York State Ass’n for Retarded Children Inc. v. Carey, 706 F.2d 956 (2d Cir. 1983) ......................................................................... 13, 14

Penn. Ass’n for Retarded Children v. Comm. of Pa., 334 F.Supp. 1257 (E.D. Pa. 1971) ...................................................................... 12

Planned Parenthood of Greater Tex. Surg. Health Servs. v. Abbott, 734 F.3d 406 (5th Cir. 2013) ................................................................................ 4

R.G. v. Koller, 415 F.Supp.2d 1129 (D. Haw. 2006) .................................................................. 23

Reed v. Rhodes, 549 F.2d 1050 (6th Cir. 1976) ............................................................................ 25

Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992) ............................................................................................ 16

Ruiz v. Estelle, 679 F.2d 1115 (5th Cir. 1982), amended in part, vacated in part, 688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042 (1983) ................ 7, 10


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Ruiz v. Lynaugh, 811 F.2d 856 (5th Cir. 1987) .............................................................................. 16

Sierra Club v. Clifford, 257 F.3d 444 (5th Cir. 2001) .................................................................. 19, 20, 24

Thomas S. v. Flaherty, 902 F.2d 250 (4th Cir. 1990) ................................................................................ 9

United States v. State of Conn., 931 F.Supp. 974 (D. Conn. 1996) ....................................................................... 16

United States v. Suquamish Indian Tribe, 901 F.2d 772 (9th Cir. 1990) ................................................................................ 9

Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974) ............................................................................ 23

Youngberg v. Romeo, 457 U.S. 307 (1982) ............................................................................................ 23

Rules

FED. R. CIV. P. 53 ..............................................................................................passim

FED. R. CIV. P. 53(a)(1)(C) ................................................................................ 13, 15

Other Authorities

APPOINTING SPECIAL MASTERS & OTHER JUD. ADJUNCTS: A

HANDBOOK FOR JUDGES & LAWYERS 5 (2d. ed. 2009), available at http://www.fjc.gov/public/pdf.nsf/lookup/ACAM2009.pdf/$file/ACAM2009.pdf (last visited April 13, 2016) ......................................................... 8

Letter of J. Hughes, April 7, 2016, #00513456484 ................................................. 25


1

INTRODUCTION

Issuance of the writ of mandamus is permissible only in the clearest and

most compelling of cases, and defendants have not come close to satisfying their

daunting burden to justify its issuance in this case. They have failed to show that

their right to issuance of the writ is clear and indisputable, and that they have no

other adequate means to obtain review of the district court’s appointment order.

Even if they had satisfied these two first hurdles, defendants have not shown that

issuance of the writ would be appropriate under the circumstances.

STATEMENT OF FACTS

This case is brought on behalf of 12,000 children in the permanent managing

conservatorship (PMC) of Texas. Plaintiffs introduced extensive evidentiary proof

that defendants substantially depart from professional judgment and remain

deliberately indifferent to the needs of children entrusted to the State’s care, that

longstanding structural defects expose PMC children to harm and substantial risk

of harm, and that injunctive relief is needed to remedy the violation of foster

children’s constitutional rights. In an exhaustively detailed Opinion and Verdict

issued on December 17, 2015 (Opinion), the district court found that plaintiffs

successfully established liability as to most of their claims and that injunctive relief

is warranted. See Pet.Ex.5.


2

The district court further announced its intention to craft an injunction, to be

issued as a final order, that will require defendants to “establish and implement

policies and procedures to ensure that Texas’s PMC foster children are free from

an unreasonable risk of harm.” Id. at 245, 248. Recognizing that “it would be

impractical for the Court to craft and oversee each necessary change,” the district

court announced that as “a more effective and flexible alternative, the Court will

appoint an independent Special Master to help craft the reforms and oversee their

implementation.” Id. a 245-46. The Special Master is to “operate in close

coordination with this Court, which retains jurisdiction to issue orders as necessary

to remedy the constitutional violations described in this Opinion.” Id. at 246.

The Opinion spells out detail-oriented, managerial tasks that the master is to

perform, beginning with the development of a recommended implementation plan,

to be presented to the court within 180 days. Id. In developing that plan, the master

would “have access to all relevant information, records, personnel, and reports”

and must provide all parties “a full opportunity to consult and be involved with the

development.” Id.

The court gave specific direction as to what the recommended plan “shall

include,” such as interim dates, final implementation dates, specific “steps and

tasks necessary to achieve full implementation and to meet the interim and final


3

implementation dates,” and the like. Id. at 246-47. It laid out a comprehensive set

of goals that it had determined an implementation plan should achieve, including

some very specific objectives such as those dealing with a foster child’s access to

speak privately with DFPS staffers or updating the photographs of children in their

case files. Id. at 248-54. The master’s task would be to recommend specific,

workable solutions for achieving those goals. Id. at 246. The district court made

clear that the master’s recommendations will be reviewed de novo as the court will

make final determinations regarding all aspects of its final injunctive order, and

only after “hear[ing] the parties’ objections to the proposed Implementation Plan”

will the court “decide which, if any, provisions to accept.” Id. at 247.

As its only specific injunctive order, the Opinion directed defendants to

“immediately stop placing PMC foster children in unsafe placements, which

include foster group homes that lack 24-hour awake-night supervision.” Id. at 245.

Nevertheless, defendants attempted an interlocutory appeal of all aspects of the

Opinion, including the special master appointment, and sought to stay all further

proceedings. Pet.Ex.6 at 2-4. In denying the stay, this Court rejected defendants’

argument based “on supposed irreparable harm resulting from being ordered to pay

for the special master’s work,” explaining that “[f]inancial harm . . . is outweighed

by the harm to the class members and public interest if we stay the case.” Id. at 5.


4

As the Court concluded, the public interest “supports allowing the special master to

proceed. Because the safety and rights of vulnerable children are at stake, and the

immediate injunctive relief ordered is concentrated on a single, narrow mandate,

the Planned Parenthood [of Greater Tex. Surg. Health Servs. v. Abbott, 734 F.3d

406 (5th Cir. 2013)] factors weigh in favor of denying a stay.” Id.

The parties were unable to agree on special master candidates and submitted

competing proposals, which the district court considered at a hearing on March 21,

2016. The court selected two persons who, both individually and collectively,

bring tremendous experience to bear. One of the special masters, Kevin Ryan, has

unique qualifications for this role, having managed public agency reform both as

Commissioner of New Jersey’s child welfare agency during implementation of a

federal consent decree and as a court-appointed monitor in other states

implementing child welfare reforms under federal court oversight. Ex.1 at 1-2,

Ex.A. The other special master, Professor Francis McGovern, is equally

impressive, with extensive experience as a court-appointed special master in

countless ground-breaking cases, including many involving institutional reform. Id.

at 3, Ex.B.

Notably, at this hearing one of defendants’ proposed candidates, John

Stephen, testified about the state’s foster care system. He is founder and managing


5

partner of The Stephen Group, a management consulting team, and has led projects

in several states, including Texas, where he remains actively involved with

assessing the state’s foster care system. Pet.Ex.8 at Ex.A. DFPS has paid his group

over $2.1 million in connection with its work in Texas. Pet.Ex.7 at 18-19. His

testimony is instructive, including the following:

Upon reading the Opinion, he “felt a sense of agreement with what the Court had found based on the evidence she had in this trial. . . . Because there is lots of issues that need to be fixed today in our State’s foster care system,” especially for PMC children. Id. at 69-70.

He agreed that “[c]hildren are hurt every day by systemic problems,” and “[t]hat’s why you need an urgency to fix things,” explaining that a child welfare agency “handling any child” should “make sure you ensure their safety, permanency, and wellbeing.” Id. at 84-85.

If he “were the only person voting,” he would “say let’s start fixing all of these real life systemic [] issues today.” Id. at 85.

The district court denied defendants’ motion to revoke the appointment or,

in the alternative, stay the proceedings. Pet.Ex.11. Defendants have petitioned this

Court for a writ and requested a stay to halt the remedial process in its tracks.


6

ARGUMENT

I. THE DISTRICT COURT COMMITTED NO ERROR, AND CERTAINLY DID NOT

CLEARLY ABUSE ITS DISCRETION, IN APPOINTING THE SPECIAL MASTERS.

A. Appointing Masters To Assist In Planning, Developing, And Implementing Court-Ordered Reforms Is Proper Under Rule 53 And A Court’s Inherent Judicial Authority.

In appointing the special masters, the district court exercised a traditional

and commonly-exercised authority under Federal Rule of Civil Procedure 53 and

pursuant to its inherent judicial authority. In particular, masters have been

appointed post-trial to plan, recommend, organize, and supervise implementation

of court orders, especially remedial orders requiring institutional reform to achieve

constitutional compliance. The district court’s appointment order falls squarely

within Rule 53 and the well-established case law authority.

1. Case law reflects the longstanding practice of using masters in situations similar to those in this case.

More than half a century ago, the Supreme Court addressed the judicial

authority to make reference to special masters. La Buy v. Howes Leather Co., 352

U.S. 249 (1957), in which the Court was interpreting the original version of Rule

53, acknowledged a district judge’s authority to appoint a master, describing the

master’s proper function as “to aid judges in the performance of specific judicial

duties, as they may arise in the progress of a cause,” quoting an even older

decision. Id. at 256 (quoting In re Peterson, 253 U.S. 300, 312 (1920)).


7

Over time, the Court broadened its approval of when a master properly may

be appointed. See Local 28 of Sheet Metal Workers Int’l Ass’n v EEOC, 478 U.S.

421 (1986) (approving appointment of a judicial adjunct with broad responsibility

for supervising compliance with the district court’s remedial orders). In later years,

the case law in the lower courts spelled out more clearly the many roles to which

masters could be assigned under Rule 53. Courts also recognized that district

courts possess inherent authority to appoint masters.1

In 2003, several important amendments to Rule 53 were promulgated, and

the scope of the district court’s authority to appoint special masters was expanded.

See Rule 53, Advisory Committee Notes (2003). 2 While special masters are

regularly appointed for both pretrial and trial matters under the 2003 version of

Rule 53, perhaps the primary justification for appointing masters, and the ground

1 See Ruiz v. Estelle, 679 F.2d 1115, 1161 n. 240 (5th Cir. 1982), amended in part, vacated in part, 688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042 (1983) (“[R]ule 53 does not terminate or modify the district court’s inherent equitable power to appoint a person, whatever be his title, to assist it in administering a remedy.”); In re Peterson, 253 U.S. 300, 312 (1920) (courts have “inherent power to provide themselves with appropriate instruments required for the performance of their duties. This power includes authority to appoint persons unconnected with the court to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause.”) (citation omitted).

2 In other ways, the amendments tightened Rule 53, such as by eliminating the appointment of trial masters in jury trials, except with consent of the parties. Also new were requirements that the order of reference address compensation, conflicts of interest, and ex parte communications.


8

on which masters have been most commonly approved, is at the post-trial stage.3 In

particular, appointment of masters is routinely recognized as appropriate at the

post-trial stage to plan, organize, direct, and supervise implementation of a court

order, especially a remedial order to reform a state institution. A good example is

Brown v. Plata, 563 U.S. 493, 131 S. Ct. 1910 (2011), where the Court, in

upholding the district court’s order requiring California to reduce its prison

population to remedy constitutional violations from overcrowding, described the

district court’s appointment of a remedial special master. The district court had

given the master responsibility “to oversee development and implementation of a

remedial plan.” Id. at 1926 (citation omitted). In fact, the special master (along

with a receiver that had been appointed in a related case) had recommended that, in

addition to ordering a reduction in the prison population, the district court should

order staff training, facilities improvement, and procedural reforms. Id. The district

court later appointed a receiver to oversee the defendants’ compliance with the

court’s order. Id. at 1929.4

3 See APPOINTING SPECIAL MASTERS & OTHER JUD. ADJUNCTS: A HANDBOOK FOR JUDGES &

LAWYERS 5 (2d. ed. 2009), available at http://www.fjc.gov/public/pdf.nsf/lookup/ACAM2009. pdf/$file/ACAM2009.pdf (last visited April 13, 2016) (“In civil cases, masters are often appointed to monitor compliance with structural injunctions, especially those involving employment or other organizational change, those involving facilities assisting the disabled, or those requiring reform in government agencies.”).

4 While the decision in Brown did not address the propriety of the master’s appointment by the district court (the state was not challenging the appointment in its appeal), the Court noted its


9

Many other cases have approved appointment of a remedial master—far too

many to catalogue all of them here; but even citation to a few suffices to

demonstrate that the district court’s appointment order is a paradigmatic example

of the kind of appointment routinely made in institutional reform cases.5

approval of the appointment and of the master’s work. See, e.g., id. at 1930 (noting that the “previous order requirement” of the Prison Litigation Reform Act “was satisfied by appointment of a Special Master” in the Coleman litigation); id. at 1939 (noting that the master’s and receiver’s reports “are persuasive evidence that, absent a reduction in overcrowding, any remedy might prove unattainable and would at the very least require vast expenditures of resources by the State”); id. at 1940 (finding that the master and receiver “have filed numerous reports detailing systemwide deficiencies in medical and mental health care” and affirming district court’s remedial orders to address the deficiencies found to exist). 5 See, e.g., Costello v. Wainwright, 387 F.Supp. 324 (M.D. Fla. 1973), aff’d, 489 F.2d 1311 (5th Cir. 1974) (remedial master appointed in prison reform case to “aid the Court in evaluating the quality of medical services and general health care available to the class plaintiffs, inmates committed to the custody of the Florida Division of Corrections and in evaluating what if any, improvements should be made”); In re Holocaust Victim Assets Litig., 424 F.3d 132 (2d Cir. 2005) (in case in which master appointed to propose a plan of allocation and distribution of settlement funds from Holocaust reparations case, appellate court affirmed district court’s order adopting master’s recommendations); Labor/Community Strategy Ctr. v. Los Angeles County Metro. Transp., Auth., 263 F.3d 1041 (9th Cir. 2001), cert. denied, 535 U.S. 951 (2002) (master’s appointment upheld to resolve disputes, including deciding on competing remedial proposals from the parties in a civil rights lawsuit between a group of bus passengers and the Los Angeles County Metropolitan Transportation Authority); Bogard v. Wright, 159 F.3d 1060, 1062 (7th Cir. 1998) (in case involving treatment at state mental hospitals, where decree called for extensive injunctive relief, finding, inter alia, no basis to issue mandamus in case in which master charged with monitoring and assisting “with the progress of the defendants in complying with the decree”); Alexander S. v. Boyd, 113 F.3d 1373, 1378 (4th Cir. 1997) (master to oversee state’s implementation of court-ordered improvements in conditions at juvenile detention facilities), abrogation on other grounds recognized by Montcalm Publ’g Corp. v. Commonwealth of Virginia, 199 F.3d 168, 172 (4th Cir. 1999); In re Pearson, 990 F.2d 653 (1st Cir. 1993) (upholding master’s appointment to assist district court in implementing and overseeing injunctive relief ordered in case against a state institution, the Massachusetts Treatment Center for Sexually Dangerous Persons); Thomas S. v. Flaherty, 902 F.2d 250, 255-56 (4th Cir. 1990) (master to oversee decree requiring reforms at state psychiatric hospital); United States v. Suquamish Indian Tribe, 901 F.2d 772 (9th Cir. 1990) (upholding master’s appointment to assist district court in resolving dispute over nature and extent of treaty Indian fishing rights); Halderman v. Pennhurst State Sch. & Hosp., 612 F.2d 84, 111 (3d Cir. 1979) (en banc), rev’d on


10

2. This Court has approved appointment of masters to assist in planning and implementing post-trial remedial orders.

This Court has approved the use of special masters to assist with planning

and organizing implementation of a court’s remedial order in a case involving

reform of a state institution. See Ruiz v. Estelle, 679 F.2d 1115, 1161 (“The power

of a federal court to appoint an agent to supervise the implementation of its decrees

has long been established.”). Ruiz recognized that the size of a government

institution subject to a remedial decree as a factor justifying appointment of a

special master to assist in planning and organizing the remedial order. Id. at 1160-

61 n.238 (noting that “the sheer size of the Texas prison system could be found to

pose special difficulties in implementing a remedial decree”).

Even before Ruiz, this Court had recognized a district judge’s authority to

appoint a special master in a remedial role in an institutional reform case. In Gary

W. v. Louisiana, 601 F.2d 240 (5th Cir. 1979), a master was appointed to supervise

multi-year implementation of a court order affecting care of special needs children,

including those in foster care. The special master’s “functions . . . [were] clearly

spelled out. He [was] to make reports and recommendations to the District Court.

other grounds, 451 U.S. 1 (1981) (approving district court’s appointment of master “to plan, organize, direct, supervise and monitor the implementation” of the Court’s remedial order pertaining to a state institution for the mentally retarded).


11

Each party then has the right to object to these recommendations and be accorded

hearings on objections.” Id. at 245. This is, of course, the process used here.6

Approving that appointment, this Court noted that the decision to refer the

case to a master “is not extraordinary” and that a master’s appointment has been

approved in “many cases involving similar facts or problems.” Id. at 240, 244-45.

(citing cases). For example, the Court pointed to Costello v. Wainwright, 387

F.Supp. 324 (M.D. Fla. 1973), aff’d 489 F.2d 1311 (5th Cir. 1974), where the

district court had observed that the purpose of appointing a master was

to aid the Court in evaluating the quality of medical services and general health care available to the class plaintiffs, inmates committed to the custody of the Florida Division of Corrections and in evaluating what if any, improvements should be made. Because this area of study is highly technical and involves medical knowledge beyond the expertise of the Court, the assistance of an expert special master who possesses the requisite medical capabilities is necessary.

387 F.Supp. at 325; see also Moore v. Leflore County Bd. of Election Comm’rs,

361 F.Supp. 609 (N.D. Miss. 1973), aff’d, 502 F.2d 621 (5th Cir. 1974) (noting

special master appointed “to formulate an acceptable redistricting plan”).

Similarly, in Halderman v. Pennhurst State Sch. & Hosp., 446 F.Supp. 1295 (E.D.

Pa. 1977), also cited in Gary W., the district court appointed a master “to plan,

organize, direct, supervise and monitor the implementation” of a remedial order

6 Indeed, the special master appointment in Gary W. delegated functions like fact finding and conducting hearings, 601 F.2d at 245, which the appointment here does not.


12

pertaining to a state institution for the mentally retarded. Halderman v. Pennhurst

State Sch. & Hosp., 612 F.2d 84, 111 (3d Cir. 1979) (en banc), rev’d on other

grounds, 451 U.S. 1 (1981) (upholding district court’s order and noting “[w]ere we

to preclude the trial court from resorting to a master, we would help make self-

fulfilling the frequently made prophecy that courts are institutionally incapable of

remedying wholesale violations of legally protected rights”); see also Amos v. Bd.

of Sch. Dirs. of City of Milwaukee, 408 F.Supp. 765 (E.D. Wis. 1976) (district

court ordered that school system be integrated and master “be appointed to make

recommendations to the court with respect to the question of an appropriate

remedy”); Penn. Ass’n for Retarded Children v. Comm. of Pa., 334 F.Supp. 1257,

1268-69 (E.D. Pa. 1971) (noting that “Special Master shall be appointed to oversee

the identification by defendants of all mentally retarded children who have been

denied an education and the formulation and implementation by defendants of a

plan to provide a free, public program of education and training to all mentally

retarded children as soon as possible”).

3. Appointment of masters at the remedial stage is particularly appropriate when remedies involve “polycentric problems” not as easily or effectively resolved through the traditional adjudicative process.

Courts have found it to be especially appropriate to appoint a special master

at the remedial stage when the remedy involves, as one court once put it, “a


13

polycentric problem that cannot easily be resolved through a traditional courtroom-

bound adjudicative process.” Hart v. Cmty. Sch. Bd. of Brooklyn, N.Y. Sch. Dist.

No. 21, 383 F.Supp. 699, 767 (E.D.N.Y. 1974). Post-2003, this justification for

engaging special masters draws direct support from the amended rule, which

specifically recognizes that a court may appoint a master to “address pretrial and

posttrial matters that cannot be effectively and timely addressed” by the court.

FED. R. CIV. P. 53(a)(1)(C).

In Hart, the first federal class action school desegregation case in New York,

the constitutional difficulties the court faced required consideration of “a multitude

of choices affecting allocation of educational, housing and other resources.” 383

F.Supp. at 766. Consequently, it concluded that it could only make informed

choices if it appointed a master to assist “in developing a plan” to remedy the

segregation. Id. at 762. In particular, a “skilled master, with expertise in

government housing laws and in educational administration” was needed to engage

in “informal consultations” and to weigh “complex alternatives using a managerial

decision-making process.” Id. at 766-67. The role, the court concluded, “is crucial

if a just and workable remedy is to be devised.” Id. at 767. In New York State Ass’n

for Retarded Children Inc. v. Carey, 706 F.2d 956 (2d Cir. 1983), the Second


14

Circuit approved Hart and relied on Gary W. Id. at 962-63 (affirming appointment

of special master for reform of state institutions for the mentally retarded)

In this case, the district court similarly faces a polycentric problem and will

confront a multitude of choices in how to develop, implement, and administer its

remedial orders. And, just as in Hart, making the right choices will require a deep

dive into the details of the state’s foster care system, work which will require

extensive conversations with DFPS personnel and in-depth inquiries into

departmental practices. The district court realized that this work was necessary

before tailored remedial orders could be entered, but that it was not as well situated

to undertake these tasks and that it could not order remedial relief as effectively

and as timely without the aid of the special masters.

Moreover, just as Hart appointed a master with special expertise, here the

district court appointed two individuals with extensive background experience for

the role they have been asked to play. Mr. Ryan’s experience with child welfare

reform is unparalleled, from having served as New Jersey’s Commissioner for

child welfare during implementation of a federal consent decree, and from having

worked as a court-appointed monitor in several other states implementing child

welfare reforms under federal court oversight. Professor McGovern is one of the

country’s foremost special masters, having been appointed to the role in countless


15

cases nationwide, including numerous institutional reform cases. Together, these

two leading experts bring relevant experience and impressive credentials to their

assignment; their appointment will aid the court to effectively and timely develop

and implement remedial orders in this case. FED. R. CIV. P. 53(a)(1)(C).

4. The special masters are to aid the court in evaluating and implementing remedies, not to make liability decisions.

Beyond their general indictment of the district court’s decision to appoint

masters, defendants also specifically object that the court delegated to the special

masters the duty to make liability determinations. The objection is without merit.

The primary focus of this objection is the recommendations the masters are

to make pertaining to caseloads and the General Class. The Opinion assigns the

special masters managerial and detail-oriented tasks to complete and on which to

rely in making recommendations with regard to caseloads, which the district court

plans to review and consider in crafting remedial relief. For example, the court

ordered that DFPS must track caseworker caseloads on a child-only basis. Pet.Ex.5

at 250. The court found that defendants do not count child-only caseloads, a failure

so fundamental it makes Texas unique among U.S. child welfare systems. Pet.Ex.5

at 162 (“DFPS’s way of counting caseloads is unique to Texas. Defendants’ and

Plaintiffs’ experts could barely understand the stage-counting approach, let alone

explain it to the Court.”). As an example of the detail-oriented tasks given to the


16

masters, the court has directed them to consider and make recommendations

regarding many specifics relevant to implementing the tracking order, such as

whether full-time caseworkers should be categorized separately from part-time

caseworkers, and whether tracking should be done by region or on a county-by-

county basis. Id. at 250.

At this granular level, the tasks assigned to the special masters will require

expertise and hands-on evaluation, including formal and informal communications

with DFPS personnel and in-depth inquiries into department practices. This kind of

detailed fact-gathering and investigatory practice does not fit neatly into the

traditional courtroom-bound adjudicative process. Indeed, consider the alternative:

if the court had decided to do all of this work itself, the likely outcome would have

been more evidentiary hearings, which, in turn, would further attenuate the

proceedings, delaying even longer entry of a final judgment. Given the findings

regarding the serious and immediate risks that these children face, the district

court’s decision to appoint special masters so that it could more effectively and

promptly decide upon and enter remedial relief deserves considerable deference.7

7 Ruiz v. Lynaugh, 811 F.2d 856, 861 (5th Cir. 1987) (discussing deference due district court in

institutional reform cases “because it is intimately involved in the often complex process of institutional reformation” and “has the personal knowledge, experience, and insight necessary to evaluate the parties’ intentions, performances, and capabilities”); United States v. State of Conn., 931 F.Supp. 974, 984 (D. Conn. 1996) (“An appellate court will not disturb a district court’s decision to appoint a special master, unless a clear abuse of judicial power is shown.”); see also Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 393-94 (1992) (O’Connor, J., concurring) (deference owed to district court is greater when


17

Nor are defendants right to suggest that the district court has improperly

delegated judicial responsibility to the special masters with regard to caseloads.

The court has already concluded that existing caseloads violate PMC children’s

substantive due process rights. Pet.Ex.5 at 186. It cited numerous grounds to

support its conclusion that excessive caseloads mean all children in the General

Class face an unreasonable risk of harm. These findings including the following:

National professional child welfare accreditation standards recommend maximum caseloads of up to 15 children, id. at 25-26, 163-64, 199, and Plaintiffs’ expert Dr. Viola Miller, who has been the top official or a consultant for child welfare agencies in several states, testified that any load above 20 is dangerous. Id. at 44-45, 162-64, 199.

Even with the incomplete data that defendants maintain on caseloads, the court was able to find that DFPS’s caseloads “far outpace” professional standards. Id. at 199. More than half of all PMC children (53%) have caseworkers with caseloads of over 20 children. PX2159 at 1; see also Pet.Ex.5 at 164, 193.

The court found that the actual ratio of children-to-caseworkers is almost certainly even worse than these previous figures indicate. Critically, DFPS caseload numbers cannot be trusted, as they include fictive workers who “are not actually even people” and secondary workers that never interact with children. Pet.Ex.5 at 54-55, 162, 164-65, 171-76.

The court cited extensive evidence of how overburdened caseworkers are, independent of the data on the ratio of caseworkers-to-children. Id. at 164-68. This evidence included that Texas caseworkers spend just 26% of their time with children, a finding that even the DFPS Commissioner calls “disturbing.” Id. at 167. Even defendants’ own expert testified that this 26% figure is “clear

court has been involved with litigation concerning large, public institutional reform over a number of years, noting that “[d]etermining what is ‘equitable’ is necessarily a task that entails substantial discretion, particularly in a case like this one, where the District Court must make complex decisions requiring the sensitive balancing of a host of factors”).


18

evidence that the agency is doing more compliance than care,” which is “a barrier that is qualitatively reducing the CPS caseworkers’ ability to keep children safe.” Id. at 167.

The court found that, whatever the exact ratio of children-to-caseworkers, “[u]nmanageable caseloads are the main reason that CVS caseworkers leave,” citing a survey in which 70% of caseworkers listed “Workload” as the first or second reason why they resigned. Id. At 177.

Relatedly, the court found that the annual turnover rate for caseworkers was 26.7%. Defense witnesses admitted that “high caseloads lead to high worker turnover, further exacerbating high caseloads.” Id. at 176. This high turnover rate means that one out of every 11 CVS caseworker positions is vacant, id. at 177; DX 119 at 19, and even when vacancies are filled, it takes “two years” for a caseworker “to fully be up to speed.” Pet.Ex.5 at 177.

Defense witnesses admitted that this high turnover rate causes delayed investigations, a lack of continuity in providing services to families and children, a lack of consistent timely visits by caseworkers to children in state custody, and many additional financial costs that Texas must bear because it has to recruit and train many more workers. Accordingly, the court found that in this fluid system—in which children are being shuttled constantly from one caseworker to another—all children in the General Class are subject to an unreasonable risk of harm. Id. at 178. With such high turnover, the district court found that children who exited care in 2008 and spent at least three years in the permanent managing conservatorship of the State had an average of 6.39 caseworkers. Id. at 179, 191-92.

To top it off, DFPS has “ignored decades of reports that universally cite the danger of overburdened caseworkers.” Pet.Ex.5 at 186-89, 196; see also id. at 32-34.

The district court did not ask the masters to revisit any liability finding, and

their ultimate recommendations will not alter the determination that existing

caseloads are excessive. Instead, their only responsibility is to recommend

effective ways to address the pervasive problems that the court has identified.


19

In addition to their assignments for the General Class, the masters have been

given specific assignments as to the subclasses, such as offering recommendations

for improving the quality of investigations of licensing violations, as well as of

abuse allegations while children are in the state’s care. Once again, the work

delegated to the special masters is detail-driven, managerial work: How to address

the agency’s documented unwillingness to institute corrective actions against child

care facilities found to have been in violation of DFPS rules? Id. at 251. How to

track child-on-child abuse in a way that makes the information easy to retrieve and

accessible? Id. at 252. How DFPS’s internal auditing unit can better ensure that

investigations are being conducted appropriately when deficiencies have been

identified? Id. at 250. Far from any delegation of a core judicial function, these

inquiries look into the details that the district court realizes must be accounted for

in coming up with a remedial order to address defendants’ constitutional

violations.

The appointment order in this case stands in stark contrast to cases like La

Buy and Sierra Club. In La Buy, the district court referred antitrust cases to a

master before liability was determined, citing as its justification for referral that the

cases were complex and would take too much time to try. 352 U.S. at 252-54. In

Sierra Club v. Clifford, this Court similarly rejected the justifications for


20

appointing a special master, which included the length of time the case had been

pending and the voluminous filings of technical documents that concerned

compliance with governmental regulations. 257 F.3d 444, 446 (5th Cir. 2001).

Also like La Buy, the special master in Sierra Club was charged with deciding

basic liability issues (and those decisions had to be accepted by the district judge

unless they were clearly erroneous). Id. at 448.

In contrast, this matter has gone to trial, and the district court has rendered

its lengthy decision on the merits. The court’s reference to special masters is to aid

it in the evaluation, determination, and implementation of particular remedies, not

to make factual liability determinations, a critical distinction that Sierra Club

specifically flagged. See id. (noting that most of the cases cited by appellees in

Sierra Club in support of the reference to the special master “concerned the

evaluation and implementation of particular remedies, not the determination of

basic liability issues” and that it “may be plausible to refer matters concerning

remedies once liability is determined, but whether such references are valid will

always turn on their compliance with Rule 53(b)”).

B. The Order Does Not Direct The Special Masters To “Apply” The Wrong (Or Any) Constitutional Standard.

Defendants’ assertion that the district court “direct[ed] the special masters to

apply an incorrect constitutional standard,” Pet. at 11, is unavailing on multiple


21

levels. To begin with, as noted above, the court did not task the masters with

“applying” any legal standard at all, but only to develop recommendations for

implementing the goals outlined in the Opinion, which the court will review before

ordering remedial relief. The court thus properly reserved to itself the core judicial

function of applying the constitutional standard it has articulated to remedies

recommended by the special masters.

Defendants’ mischaracterization of the masters’ role is another attempt to

obtain premature appellate review of the merits of the district court’s interlocutory

liability determination. Because the mandamus petition concerns only the order

appointing the special masters, which does not direct the masters to make any legal

determinations, issues regarding the legal standard that the district court is in the

midst of applying are irrelevant to the mandamus proceeding. Only after the

district court applies the constitutional standard in reviewing and deciding whether

to adopt any of the masters’ recommendations, and enters its final order, will these

issues be ripe for appellate review. Defendants may take an appeal then, and it will

be the province of the appeal Panel to review de novo whether the district court

applied the correct constitutional standard and to determine whether the liability

and remedy determinations satisfy the standard that Panel finds should be applied.


22

In any event, plaintiffs have discussed the relevant authorities on the

applicable constitutional standard in much greater depth in prior filings in the

district court, but for now it may suffice to note that defendants cannot show that

the district court erred in articulating the constitutional standard, much less to the

extreme degree necessary to justify the extraordinary remedy of mandamus. This

Court has recognized foster children in the State’s custody as one of the “strictly

enumerated” situations in which the State assumes a duty of care sufficient to

create a special relationship. Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex

rel. Keys, 675 F.3d 849, 856, 859 (5th Cir. 2012); accord Griffith v. Johnston, 899

F.2d 1427, 1439 (5th Cir. 1990); see also Doe v. Taylor Indep. Sch. Dist., 975 F.2d

137, 146 (5th Cir. 1992), reh’g granted and opinion vacated on other grounds, 987

F.2d 231 (5th Cir. 1993), and on reh’g, 15 F.3d 443 (5th Cir. 1994). Long ago, the

Supreme Court explained that when a child is taken into state custody, the situation

might be “sufficiently analogous to incarceration or institutionalization to give rise

to an affirmative duty to protect.” DeShaney v. Winnebago Dep’t of Soc. Servs.,

489 U.S. 189, 201 n.9 (1989). Yet defendants urge a constitutional standard under

which foster children would enjoy less protection from harm than numerous

courts—including the Supreme Court and this Court—have recognized must be


23

accorded to mentally ill or disabled adults and convicted felons.8 In line with such

precedent, courts have found specifically in the foster care context that children’s

substantive due process rights were violated by conditions similar to those the

district court confronted here.9

II. DEFENDANTS HAVE A FULLY ADEQUATE ALTERNATIVE REMEDY ON

APPEAL, AFTER FINAL JUDGMENT IS ENTERED BY THE DISTRICT COURT.

Mandamus is also not warranted because defendants have a fully adequate

alternative remedy to an extraordinary writ that is neither illusory nor ineffectual.

Nor are defendants at risk of harm that outweighs the constitutional interests at

stake. Defendants’ assertions about the anticipated administrative costs are

speculative and overstated. And they ignore both that the district court has thus far

approved only a limited number of personnel working for a limited period of time

8 See, e.g., Youngberg v. Romeo, 457 U.S. 307, 315-17 (1982) (“If it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed―who may not be punished at all―in unsafe conditions.”); Alberti v. Klevenhagen, 790 F.2d 1220, 1226 (5th Cir. 1986) (“The pattern of violence in the Harris County jails, coupled with such inadequate supervision, creates a constant threat to the inmates’ safety.”); Wyatt v. Aderholt, 503 F.2d 1305, 1308-10 (5th Cir. 1974) (affirming district court ruling that state mental institution’s failure to employ “qualified staff ‘in numbers sufficient to administer adequate treatment’” violated the due process rights of class members). 9 E.g., D.G. ex rel. Strickland v. Yarbrough, 278 F.R.D. 635, 638 (N.D. Okla. 2011); Connor B. ex rel. Vigurs v. Patrick, 272 F.R.D. 288, 295 (D. Mass. 2011); Camp v. Gregory, 67 F.3d 1286, 1294-95 (7th Cir. 1995); K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990); R.G. v. Koller, 415 F.Supp.2d 1129, 1156 (D. Haw. 2006); Kenny A. v. Perdue, No. 1:02-cv-1686-MHS, 2004 WL 5503780, at *4 (N.D. Ga. Dec. 13, 2004); Johnson v. Collins, 58 F.Supp.2d 890, 904 (N.D. Ill. 1999), vacated on other grounds, 5 Fed. App’x 479 (7th Cir. 2001); LaShawn A. v. Dixon, 762 F.Supp. 959, 996 (1991), aff’d and remanded on other grounds sub nom., LaShawn A. by Moore v. Kelly, 990 F.2d 1319 (D.C. Cir. 1993).


24

and that this Court has already declared that such costs are outweighed by the harm

to the class of foster children from halting the reform process.

A. The Masters’ Appointment Is Limited, Not “Open-Ended.”

One of the first assertions defendants make is that they have no adequate

remedy by appeal because the district court’s reference to the special masters is

“open-ended.” Pet. at 17. This simply is not correct. While the court’s order

contemplates that the masters will continue beyond the implementation phase, the

March 21, 2016 appointment order directed that they begin work promptly on

April 1 and complete their investigation and issue recommendations in six months.

Moreover, nothing about this order precludes review of the final order the district

court will enter after taking the masters’ recommendations into account. See

Sierra Club, 257 F.3d at 448 (“[S]uch order, as in this action, may be reviewed on

appeal.”). In short, the appointment that is at issue in the current mandamus

proceeding has an inherent time limit. The implementation phase of the masters’

appointment will commence only after the district court has entered a final order,

which defendants will be entitled to challenge on appeal in the ordinary course.

B. Defendants’ “Fragmented” Process Argument Is A Red Herring.

Defendants assert that they have no other remedy because they are being

subjected to a “fragmented” judicial process. Pet. at 16. Whatever the merits of

their complaint, it is a red herring as it has nothing to do specifically with the


25

court’s appointment of the masters. After all, if the court elected to undertake the

tasks it assigned to the masters, as defendants say it should have, the “fragmented”

process about which they complain would be exactly the same.

C. Having To Pay For Special Masters Does Not Demonstrate Inadequacy Of Alternative Remedies.

Finally, defendants say that they have no alternative adequate remedy

because the financial burden of the special masters is great and cannot be recouped

later if they win on appeal, repeating the arguments they made in their stay motion.

Once again, they are wrong to argue that the appointment order should be nullified

because it requires that they bear the costs. Indeed, this Court’s prior rejection of

their identical argument in the context of deciding whether the stay the 24-hour

supervision order of group homes seems dispositive of the question:

Financial harm, though, is outweighed by the harm to the class members and public interest if we stay the case. A stay would allow the State to continue to make apparently dangerous placements in foster group homes that lack 24-hour supervision. We agree with other circuits that “where the value of the constitutional rights to be protected far outweigh[] administrative costs that might be incurred in formulating a remedy, the lower court proceedings . . . should continue.” See Reed v. Rhodes, 549 F.2d 1050, 1052 (6th Cir. 1976) (considering a stay in school desegregation case).

Pet.Ex.6 at 5. Moreover, defendants’ assertion that the costs will exceed $2

million, Letter of J. Hughes, April 7, 2016, #00513456484, is at this point only

speculative and, as importantly, fails to give due weight to the district court’s


26

commitment to keeping costs under control. As reflected in defendants’ own letter

and its attachments, thus far the district court has approved, in addition to the work

of the special masters themselves, work by only four people—and only for the

months of April and May 2016. Id. at 1, Exs. A, B. Additionally, defendants’

mathematical estimates are built by piling assumption upon assumption: they

“[a]ssum[e] a 160-hour work month” to concoct an assumed figure for monthly

salary costs, and then assume that the court will extend its approval of the four

assistants to work beyond May 2016 and for the following four months. Id. at 2.

But the district court has reserved judgment about approving any staffing beyond

May until after the special masters submit “a work plan, with associated staffing

needs” to the court. Id. at Exs. A, B.

In any event, DFPS previously voluntarily paid The Stephen Group—the

consulting firm run by defendant’s special master nominee—over $2.1 million for

a study and implementation work similar to that contemplated for the special

masters. Pet.Ex.7 at 18-19. The Stephen Group’s work addressed fewer issues

than the district court’s remedial order will address, and the court’s liability

findings reflect that such efforts have not remedied the system’s constitutional

violations. See Pet.Ex.5 at 242. But the fact that the $2.1 million voluntarily paid

to The Stephen Group exceeds defendants’ speculation about the cost of the special


27

master process shows that even they regard such costs as reasonable for addressing

the complex systemic problems that the district court has determined exist in

Texas’s foster care system.

Ultimately, however, the critical point may simply be this: in the long haul,

the cost of paying special masters will be far outweighed by what will be saved—

including the long term financial savings that the state will reap—when some of

the most fragile segments of society, abused and neglected children who have been

taken from their homes and placed into the state’s care, through no fault of their

own, are no longer subject to constitutionally unacceptable risks of harm.

III. EVEN IF THE OTHER PREREQUISITES WERE SATISFIED, MANDAMUS IS

NOT APPROPRIATE UNDER THE CIRCUMSTANCES.

The principal argument defendants advance to support their assertion that

issuance of the writ would be appropriate under the circumstances is that the

district court’s order “raises federalism concerns.” Pet. at 22. But in making this

argument they act as if they had not previously made this exact argument in their

motion to stay the district court’s order—and as if this Court had not declined to

grant the stay they sought. A side-by-side comparison of the argument made in

their mandamus petition and in their stay motion helps illustrate that there is

nothing new here that defendants did not already say before:


28

Defendants’ Mandamus Petition Defendants’ Motion to Stay Injunction (attached hereto as Exhibit 2)

“Lastly, a writ of mandamus would be appropriate under these circumstances because the case raises federalism concerns. This lawsuit attempts to put Texas’s PMC under the indeterminately continuous control of a federal judge, instead of the State’s elected representatives and executive officers where it belongs.” Pet. at 22.

“The court’s injunction raises serious federalism concerns because it attempts to wrest control of the Texas foster-care system from the State’s elected representatives, executive officers, and judges.” Ex.2 at 1.

“Defendants are being forced to subsidize this federal takeover without first having an opportunity to contest the findings and conclusions underlying the putative injunctive relief only amplifies the federalism concerns.” Pet. at 22.

“This Court should vacate the injunction and end this misguided federal takeover of Texas’s foster-care system.” Ex.2 at 1.

“The court dismissed Transformation because it saw no evidence that the reform, which was only initiated a few weeks before trial, was working.” Pet. at 23.

“Finally, in addressing DFPS’s efforts to reduce turnover, the district court completely discounted ‘CPS Transformation.’. . . But it is unreasonable to expect that a major reform will produce discernible results after ‘mere weeks,’ and it is improper to disregard reform efforts just because they were initiated after suit seeking injunctive relief was filed.” Ex.2 at 10-11.

“The court is simply substituting its policy preferences for those of state leaders and social–welfare professionals.” Pet. at 24.

“The district court’s injunction is also objectionable because it inappropriately employs a special master, for an indefinite time period and at the State’s expense, to recommend blueprints for rebuilding the foster-care system to serve the district court’s policy preferences.” Ex.2 at 1.

“The district court’s award of injunctive “The district court’s award of injunctive


29

relief and appointment of a special master encroach upon terrain that is rightfully the province of the State.” Pet. at 24.

relief and appointment of a special master encroach upon terrain that is rightfully the province of the legislature.” Ex.2 at 20.

Not only are their arguments a rehash of their prior ones, but defendants also

ignore that there is nothing about the court’s appointment of the special masters

that uniquely triggers the concerns they raise. If the court had decided to do the

work itself that it assigned to the masters, defendants’ concerns about federalism

would be just as strident. Defendants fail to show that appointment of the special

masters—the sole basis on which their petition for mandamus is based—warrants

issuance of the writ.

Other than paying for the masters’ time, there are no consequences that will

result by allowing the appointment order to stand. Defendants will not be required

to make any substantive changes as a result of the masters’ efforts over the next

six months. No changes whatsoever will be required until the district court

concludes its de novo review of the masters’ recommendations and enters its final

judgment—at which point defendants will be able to seek an appeal.

In any event, while courts certainly must be sensitive to the state’s interest in

managing its own affairs, the law is clear that the judicial responsibility to remedy


30

constitutional violations cannot be ignored. As the Supreme Court recently put it

in Brown v. Plata, 131 S. Ct 1910, 1928-29 (2011):

A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society. If government fails to fulfill this obligation, the courts have a responsibility to remedy the resulting Eighth Amendment violation. Courts must be sensitive to the State’s interest in punishment, deterrence, and rehabilitation, as well as the need for deference to experienced and expert prison administrators faced with the difficult and dangerous task of housing large numbers of convicted criminals. Courts nevertheless must not shrink from their obligation to ‘enforce the constitutional rights of all “persons,” including prisoners.’ Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration.

Here, the rights at stake are those not of prisoners but of innocent children. Even

Defendants’ own special master nominee rightly acknowledged those stakes.

“Children are hurt every day by systemic problems,” John Stephen emphasized at

the hearing to select a special master, and “[t]hat’s why you need an urgency to fix

things.” Pet.Ex.7 at 84-85.

CONCLUSION & PRAYER

For these reasons, respondents request that the Court deny the petition for a

writ of mandamus, deny the request for a stay, and grant respondents all other

relief to which they are justly entitled.


31

April 21, 2016 Sara Bartosz CHILDREN’S RIGHTS 330 Seventh Avenue, Fourth Floor New York, New York 10001 (212) 683-2210 (212) 683-4015 (Fax) Marcia Robinson Lowry A BETTER CHILDHOOD, INC. 1095 Hardscrabble Road Chappaqua, New York 10514 (844) 422-2425

Respectfully submitted, /s/ Reagan W. Simpson Reagan W. Simpson R. Paul Yetter Dori Kornfeld Goldman Lonny Hoffman Christian J. Ward YETTER COLEMAN LLP 909 Fannin, Suite 3600 Houston, Texas 77010 (713) 632-8000 (713) 632-8002 (Fax) Barry F. McNeil David Dodds HAYNES AND BOONE, LLP 2323 Victory Avenue, Suite 700 Dallas, Texas 75219 (214) 651-5000 (214) 200-0535 (Fax) Attorneys for Appellees


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CERTIFICATE OF COMPLIANCE

1. This document complies with the type-volume limitations of Federal

Rule of Appellate Procedure 27(d)(2) because this brief contains 30 pages,

excluding the parts of the motion exempted by Federal Rule of Appellate

Procedure 27(d)(2).

2. This brief complies with the typeface requirements of Federal Rule of

Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of

Appellate Procedure 32(a)(6) because this brief has been prepared in a

proportionally spaced typeface using Microsoft® Office Word 2010 in 14-Point

Times New Roman font.

Date: April 21, 2016 /s/ Reagan W. Simpson Reagan W. Simpson


33

CERTIFICATE OF SERVICE

I certify that this response was filed with the Court via the court’s electronic

filing system, on April 21, 2016, and an electronic copy of this document was

served on all counsel of record, as listed below, via the Court’s electronic filing

system on the same date:

Ken Paxton Charles E. Roy Scott A. Keller Joseph D. Hughes Phillip A. Lionberger Thomas A. Albright OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC-059) Austin, Texas 78711-2548

/s/ Reagan W. Simpson Reagan W. Simpson


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