Oless BRUMFIELD; et al, Plaintiffs v. LOUISIANA STATE BOARD OF EDUCATION, Defendant-Appellee v. Mitzi Dillon; Titus Dillon; Michael Lemane; Lakisha Fuselier; Mary Edler; Louisiana Black Alliance for Educational Options, Movants-Appellants. United States of America, Intervenor-Appellee
No. 14-31010.
United States Court of Appeals, Fifth Circuit.
Nov. 10, 2015.
806 F.3d 289
III.
Under Appellants’ version of the facts, there was nothing that Quamaine Mason or indeed anyone in the area matching his description could do to escape Quamaine‘s fate. He was dead as soon as police were called. He complied with all orders until he was attacked by a dog and police officer who shot him seven times at point-blank range. We have the responsibility of providing arresting officers all guidance in the use of deadly force that we can, as these cases are often close and difficult—and when these cases are close and difficult, we clothe the officers with post-hoc immunity. This attack of man and dog is far from that genre. We ought not decide this case—that decision belongs to a jury. Avoiding a trial is an important component of qualified immunity, but denial of qualified immunity does not deny Officer Faul his immunity defense from liability. It only concludes that he must be judged by a jury of his peers.30 Appellants should not have go through the time and expense of another interlocutory appeal to get this Court to recognize as much. I cannot join this newly minted form of abstention, and I respectfully dissent.
James David “Buddy” Caldwell, Office of the Attorney General for the State of Louisiana, Baton Rouge, LA, for Defendant-Appellee.
Before JONES, SMITH, and COSTA, Circuit Judges.
EDITH H. JONES, Circuit Judge:
The Department of Justice (“DOJ“) filed a motion for further relief in this 40-year-old case in order to gain oversight and some level of control over Louisiana‘s school voucher program. The program provides dynamic educational opportunities in the form of scholarships for thousands of students—85% of whom were African American in 2013—to attend better public and private schools. The district court granted the DOJ‘s motion for further relief and thus mandated annual reporting requirements for Louisiana‘s school voucher program. Concerned by this interference with the voucher program, parents of African-American students and the Louisiana Black Alliance for Educational Options (“Appellants“) moved to vacate the district court‘s order under
I
Given that the Department of Justice challenged Louisiana‘s voucher program through a forty-year-old lawsuit, it is not surprising that this case has a lengthy and complicated history.
A
Before 1969, Louisiana operated “dual racially segregated systems of pupil assignment.” Brumfield v. Dodd, 405 F.Supp. 338, 342 (E.D.La.1975). Any African-American students attending formerly all-white schools “did so under the exercise of ‘freedom of choice’ options,” rather than any non-discriminatory assignment practice. Id. Between 1969 and 1970, almost all school boards were ordered by various federal district courts to begin assigning students on a race-neutral basis. Id. A significant increase in private school attendance coincided with these court orders. Id. The Louisiana State Board of Education (now the Louisiana Department of Education) was empowered by the state legislature to assist these private schools by providing textbooks, classroom materials, and transportation. Id.
In 1971, a group of African-American families commenced this Brumfield lawsuit in federal court, and the United States intervened in the lawsuit shortly after the filing. Id. at 340. In 1975, a three-judge district court panel held that Louisiana‘s practice of subsidizing racially discriminatory private schools violated the Equal Protection Clause of the Fourteenth Amendment. Id. at 348. In an order attached to the findings of fact and conclusions of law, the three-judge panel ordered the state to take four actions:
- Cease “distributing or otherwise making available textbooks, library books, transportation, school supplies, equipment, and any other type of assistance,
or funds for such assistance, to any racially discriminatory private school or to any racially segregated private school;” - Implement a process for private schools to be certified as non-discriminatory and thus be eligible for assistance from the state;
- Create an accounting of all assistance provided to racially discriminatory private schools since 1968; and
- Repossess all textbooks and classroom materials that had been given to discriminatory private schools.
The court retained continuing jurisdiction with regard to the issues in the order.
The state operated under the 1975 injunction for a decade before the United States and Louisiana agreed in 1985 to refine through a consent decree the certification process for assistance-eligible private schools. The consent decree required the state to provide the DOJ with copies of all initial certification applications and all annual compliance reports until 1988, copies of all complaints of racial discrimination by private schools applying for certification for as long as the consent decree exists, and a list by category of all the funds provided to each private school for as long as the consent decree exists. This certification regime has come to be known as Brumfield certification.
B
In 2012, the Louisiana legislature passed the Student Scholarships for Educational Excellence Act.
In 2012-2013, Louisiana received more than 10,000 applications and awarded 4,900 scholarships. More than 90% of the recipients were minorities. The following year, the state awarded roughly 6,800 scholarships, 85% of which went to African-Americans.
C
The DOJ‘s scrutiny of the voucher program began with a July 20, 2012 letter requesting information from the Louisiana Department of Education. In the letter, the DOJ stated that it wanted to review
Rather than file a new lawsuit, the DOJ moved to compel discovery under this case in order to get the information it sought about the voucher program. The magistrate judge granted the motion to compel discovery, but specified that the information could only be used in the present case and only by the Civil Rights Division of the DOJ.
The DOJ subsequently moved under
In August 2013, the DOJ filed a motion for further relief. The DOJ requested an order pursuant to the 1985 consent decree enjoining Louisiana from awarding any school vouchers to students who currently attend public school districts subject to ongoing desegregation orders. Up to this point, however, the orders in this case
A telephone conference was held on September 18, 2013, to discuss the DOJ‘s pending motion for further relief. Following the conference, the district court entered an order setting a hearing in November and requiring the parties to brief two issues:
(1) Does the desegregation order issued in Brumfield v. Dodd, 405 F.Supp. 338 (E.D.La.1975) apply to the State of Louisiana‘s Student Scholarships for Educational Excellence Program (“Voucher Program“) so as to require the State to obtain authorization from the Court prior to implementation? (2) If the desegregation order applies to the Program, is there any need to amend existing orders to ensure a process of review of the Voucher Program or similar ones in the future?
The court also required Louisiana‘s briefing to include “an analysis of the voucher awards for the 2013-2014 school year respecting impact on school desegregation in each school district presently under a federal desegregation order.”
Louisiana hired an expert to produce reports on the voucher program‘s impact for the 2012-2013 and 2013-2014 school years. The expert, Christine Rossell, is a professor of political science at Boston University who has 26 years’ experience designing and analyzing school desegregation plans. For both school years facing scrutiny, she found that the program “had no negative effect on school desegregation in the 34 school districts under a desegregation court order.” The DOJ has produced no evidence to the contrary.
Five days after the September 18 order, the DOJ filed a supplement to its original motion for further relief. Without withdrawing its original motion for a permanent injunction to stop the program, the DOJ rephrased its goals as seeking an annual process that would allow the federal government to review Louisiana‘s voucher awards in perpetuity.
On November 22, 2013, the district court held a hearing on the two questions it posed in the September 18 order: (1) do the orders in the Brumfield case apply to the voucher program, thus requiring court approval of the program; and (2) is there a need to amend the orders? At the hearing, the DOJ conceded that it had no objections to the existing Brumfield certification process for private schools and that Louisiana had complied with that certification process and the consent decree. The DOJ disclaimed that Louisiana had been funding discriminatory private schools. Instead, the DOJ explained, its ongoing goal is “to determine whether or not assignments to those [private] schools are impeding desegregation in public schools that those [voucher] students might have been assigned to.” To meet that goal, the DOJ requested a second certification process essentially to pre-approve voucher awards. Rather than replace it, the proposed process would run parallel to the existing Brumfield certification process for private schools receiving aid.
The district court issued an oral ruling at the November hearing, ultimately deciding that it had jurisdiction and that some modification to the existing thirty-year-old order would be necessary. The district court explained its ruling on jurisdiction in two sentences. First, the court stated that the voucher program fell under the existing orders because “this Court has an obligation, as well as all parties on both sides have an obligation, to take reasonable steps in the process whereby the voucher program is not being used to promote segregation; and, in that regards [sic], the Constitution mandates it, this case mandates it, so it does apply.” The court added: “If the voucher system is being used to assign children to segregated school systems in the private arena, that‘s in violation of the consent decree and the injunctions here.” The court so reasoned in spite of the fact that the DOJ had already conceded that there had been no Brumfield consent decree violation here, and that the private schools themselves are not “segregated.” The court then assumed that resolving the jurisdictional issue also resolved whether a modification was proper. Once the court had ruled that a modification would be forthcoming, it required both parties to submit proposals.
On April 8, 2014, the district court entered an order creating a process for continuing federal oversight of the voucher program to operate alongside the existing private school certification process. Beyond the word “order,” the April Order contains no label or helpful phrases to indicate whether it is a modification to the 1975 order, a modification to the 1985 consent decree, or an entirely new injunction. The document is written in a similar format and structure to the previous orders: the district court lays out a series of annu-
D
On September 30, 2013, after the DOJ filed a motion for further relief, the parents of African-American students and the Louisiana Black Alliance for Educational Option—appellants here—filed a motion to intervene as of right, which the DOJ opposed.
Because of the district court‘s erroneous denial of their motion for intervention, the intervenors were unable to participate in important court proceedings. Consequently, they lost the right to participate in the November hearing that determined whether the court had jurisdiction and whether the prior case orders needed to be modified. The intervenors were also unable to participate in the oversight plan suggestion process.
The intervenors finally joined as parties a few days after the district court entered the April 8, 2014 order creating a new oversight process for the voucher program. The intervenors could not directly appeal the order created while they were excluded as parties, but they moved to vacate the order by arguing that the judgment was either void under
The Intervenors have appealed the denial of their motion to vacate the April 8 order that established an ongoing oversight process for the voucher program.
II
This court‘s review of intervenor‘s
Unlike the
III
The DOJ initially contends that this court lacks appellate jurisdiction because the oversight regime created by the district court is only a “discovery order” that did not continue, modify, or refuse to dissolve an injunction.3
Even if an order is not a final judgment within the meaning of
Because the district court did not carefully label or describe the April 8 order, there is some confusion as to whether it is a modification of the 1975 injunction or the 1985 consent decree, or an entirely new injunction. The document is labeled as an “ORDER,” and the paragraph that precedes the monitoring regime states only
The content of the April Order makes clear that it is not for discovery. The 1975 and 1985 certification processes also mandate a sharing of information, but all parties accept that the Brumfield certification regime is an injunction. The April Order creates a new and different certification regime for the voucher program that will be repeated annually and indefinitely. Because this oversight process is exactly the relief sought by the DOJ‘s motion for further relief, it is unlikely to lead to further judicial proceedings as would be expected of a discovery order. This process is not, as the government contends, like a pretrial information swap that is limited in scope and duration. The new oversight regime requires the state to engage in a costly activity: compiling a long list of information pertaining to thousands of applicants and thousands of students as they continue to benefit from the voucher program. This is a burdensome, costly, and endless process.
The DOJ‘s previous actions also make clear that it never viewed its motion for further relief as no more than a discovery order. After this case lay dormant for decades, the DOJ revived it with a motion to compel discovery, which the magistrate judge granted. After the DOJ received interrogatory responses through the discovery request, the DOJ filed a motion for further relief, not a second discovery motion, asking the court to enjoin the program. Before the November hearing on the motion for further relief, the district court ordered the parties to prepare briefing on whether there was “any need to amend existing orders.” (emphasis added). During the November 2013 hearing, the DOJ stated that it wanted to review and approve potential voucher awards in each application cycle before the state made final awards. Referring to that arrangement, the DOJ explained, “that‘s the modification to the process [the prior consent decree and injunction] that we‘re looking for.” It is disingenuous for the DOJ now to argue that the motion for further relief was a request for a discovery order and the oversight regime is only for discovery.
Additionally, the district court repeatedly referred to the forthcoming relief as a modification to the existing orders. During the November hearing, the district court asked the parties how “a modification of the decree” would work. After determining he had jurisdiction over the DOJ‘s motion for further relief, the court ordered the parties to submit proposed “modifications to the consent decree....” Thus, the court and the parties treated the April Order not as discovery, but a further injunction.
Since the April Order was an injunction, the denial of the motion to vacate the April Order amounts to a refusal to dissolve an injunction under
IV
Turning to the merits of the appeal,
We conclude that the April Order is void for lack of subject matter jurisdiction because the voucher program is outside the scope of the district court‘s continuing jurisdiction in this case. Jurisdiction in an ongoing institutional reform case “only goes so far as the correction of the constitutional infirmity.” United States v. Texas, 158 F.3d 299, 311 (5th Cir.1998). The original 1975 decision held that the state violated the Equal Protection Clause by providing public aid to discriminatory and segregated private schools. Brumfield v. Dodd, 405 F.Supp. 338, 348 (E.D.La.1975). In the 1975 order, the district court retained continuing jurisdiction for the remedial purpose laid out in the order, which was to prevent future state aid to discriminatory private schools. For three reasons, the April 8 Order goes beyond correcting—and indeed has nothing to do with—the violation originally litigated in this case. First, the voucher program‘s potential impact on desegregation orders for public schools in separate federal desegregation cases is distinct from eliminating public funding for discriminatory private schools. Second, the voucher program aid is for students rather than private schools. Finally, even if the voucher program aids private schools, it is not being given to discriminatory private schools. The district court‘s order exceeded the constitutional infirmity on which this case was predicated and is therefore void.
A
The district court did not provide a detailed explanation for its ruling on the issue of its jurisdiction. At the November 2013 hearing, the district court orally held that “the voucher program would still be under the ambit” of the original orders in this case. The court only provided a few sentences of explanation. In part, the court explained that “this Court has an obligation, as well as all parties on both sides have an obligation, to take reasonable steps in the process whereby the voucher program is not being used to promote segregation; and, in that regards [sic], the Constitution mandates it, this case mandates it, so it does apply.”4
When the court denied the Intervenors’
B
The correct analysis of the scope of the court‘s continuing jurisdiction begins by identifying the constitutional infirmity addressed by this case in 1975. United States v. Texas, 158 F.3d at 311. The original 1975 decision ruled that “[b]ecause [the Louisiana statutes governing school funds] are implemented by defendants so as to allow substantial state assistance to racially segregated private schools, the statutes run afoul of the equal protection clause.” Brumfield, 405 F.Supp. at 348. Based on this holding, the court enjoined further state aid to discriminatory private schools and created the Brumfield certification process to ensure that only non-discriminatory private schools were eligible for state aid. The 1975 order and 1985 consent decree require information about the private schools; those orders do not concern public school districts, the desegregation of which the DOJ and federal courts continue to monitor in separate cases. See, e.g., Moore v. Tangipahoa Parish Sch. Bd., 507 Fed.Appx. 389, 390 (5th Cir.2013). The Brumfield orders also do not prevent aid to non-discriminatory private schools. Consequently, any order issued under the district court‘s continuing jurisdiction over this case had to be related to correcting the constitutional violation of providing state aid to racially discriminatory private schools.
The DOJ‘s concern that the voucher program may affect desegregation in public schools covered by other court orders is simply unrelated to the constitutional infirmity that was litigated and decided in this case. The DOJ has not alleged that the state has violated the 1975 order or the consent decree, that the state has found a way to comply with the 1975 order or the consent decree while still giving aid to discriminatory private schools, or that providing vouchers to students promotes discriminatory policies in private schools. The only evidence before the trial court shows that there have been no negative effects on the desegregation of Louisiana‘s public schools. Instead, the DOJ contends that the state‘s voucher program might potentially frustrate the desegregation of public school districts in other pending cases. The DOJ admits that this position amounts to a fishing expedition. Its concession, moreover, that Louisiana public school desegregation has not been adversely affected by the voucher program essentially acknowledges the legal and factual disconnection of the Brumfield case from the parish cases.
The state‘s voucher program is also outside the scope of this case because it provides aid to students rather than to private schools. First, the voucher program allows students to state their preference for public or private schools on their applications. It is then the students’ choice to accept the state scholarship so no money is given to a school, public or private, without the approval of the students’ families. Second, the scholarship pays for the individual student‘s education; it does not aid private school operations. That is made clear by the fact that the scholarship is
Although it involved the Establishment Clause, Zobrest v. Catalina Foothills School Dist., 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993), considered an almost identical issue: whether a statute that provided sign language interpreters for deaf students in religious schools amounted to unconstitutional aid for religious private schools. Id. at 12-13. The Court recognized that the effect of the statute was not to subsidize private school functions but to assist disabled children. Id. at 12. Similarly, the Louisiana program is not designed to aid existing private schools. The money follows the child, whether to public or private school. If the child chooses to remain at his or her current public school, no money is given to the alternative voucher program school. This program is hardly analogous to the public in-kind aid rendered to private schools in the 1970s, which subsidized the schools. Brumfield, 405 F.Supp. at 347. The current Louisiana voucher program is best characterized as aid to poor children rather than aid to private schools. Therefore, it is outside the jurisdiction of this case.
Finally, even if the vouchers constituted aid to private schools, the district court did not have jurisdiction over the program, because the aid did not go to discriminatory private schools. Aid to racially non-discriminatory private schools is not subject to the court orders in this case. Because the DOJ has conceded that the Brumfield certification process is working properly and that all the private schools participating in the voucher program are Brumfield certified, the April Order concerning the voucher program is not correcting the constitutional infirmity—aid to racially discriminatory private schools—because the infirmity is not even alleged to exist. On this basis as well, the April Order exceeds the continuing jurisdiction of the district court.
C
Our colleague takes issue with this decision for two reasons.5 His thoughtful dissent merits a reply.
Initially, the issue of Intervenors’ standing to appeal is, for good reason, no longer challenged by the government or briefed by the parties. Although jurisdictional, the Intervenors’ presence on appeal is settled by the law of the case and the scope of the district court‘s order. In Brumfield I, this court rejected the government‘s characterization of its “data request” as anything other than a step on the road to enjoining the voucher program unless and until the state receives “authorization from the court prior to implementation.” 749 F.3d at 342. Whether the government succeeds in its ultimate goal is not the point. Citing numerous prior cases, the court explained that the Intervenors’ interests are indeed affected by ongoing district court proceedings, and, “[t]he parents challenge the very premise that the Scholarship Program is subject to any such proceedings.” Id. at 343.6 The court also
With more plausibility, the dissent contends that in allowing relief for “void” judgments,
Although the term ‘void’ describes a result, rather than the conditions that render a judgment unenforceable, it suffices to say that a void judgment is one so affected by a fundamental infirmity that the infirmity may be raised even after the judgment becomes final.... The list of such infirmities is exceedingly short, otherwise,
Rule 60(b)(4) ‘s exception to finality would swallow the rule.
The Court decided, however, that Espinosa presented no opportunity to review lower courts’ assertions, construing
The dissent relies on various cases, not one of which is remotely similar to the instant case factually, temporally, or legal-
First, the lower courts were held to lack “remedial” jurisdiction in these school desegregation cases because no underlying constitutional violation had been found which was related to or necessitated the particular remedy. Without any predicate finding of a constitutional violation, the courts “lack power” to implement orders concerning a state‘s educational programs. Courts no more have power to invoke remedies against public bodies without liability judgments than they do to adjudicate controversies not fitting within under federal jurisdictional standards.8
Second, the lack of remedial power is compounded in this case because no federal constitutional violation has been alleged, litigated or adjudicated concerning Louisiana‘s voucher program. As we have noted, the DOJ concedes it cannot even allege such a violation, and the only record evidence, including that cited by the dissent, points in favor of the program‘s constitutionality. At least in United States v. Texas and other desegregation decisions of the Supreme Court and this court, prior litigation had proven that public entities ran segregated public schools; desegregation orders were tailored to remedy the vestiges of segregation; and the courts’
Treating these cases narrowly, the dissent contends that “the existence of federal question jurisdiction in this section 1983 case that was filed more than four decades ago should end our inquiry.” But what DOJ is doing here is not “this section 1983 case” from forty years ago, nor is this dispute even related to the forty-year-old case. The original lawsuit here concerned the state‘s subsidy to racially discriminatory private schools; public schools were in no way involved nor did they participate. The court ordered the state to cease such funding and certify the private schools as non-discriminatory in order to obtain state aid. This remedy was tailored to the precise violations found and, again, had nothing to do with desegregation of the public schools. There is no dispute that the state has complied in good faith over the past decades.
Now, however, the DOJ seeks to “re-open” this dormant case in order to (a) conduct an ongoing inquisition about the voucher program; (b) acquire reams of data from the state about both the public schools and thousands of private individuals who have signed up for the program; (c) ascertain the racial impact of the program on public schools in many parishes that are subject to separate court cases and desegregation decrees; and (d) maybe, someday assert that the new voucher program unconstitutionally affects the public schools.9 (It bears mention that DOJ agrees that the Brumfield certification process isn‘t related to and has nothing to do with the voucher program.)
A hypothetical explains why the court‘s order in this case is void for lack of jurisdiction. Suppose a consent decree were formulated to enjoin a state from failing to provide adequate prisoner medical care required by the Eighth Amendment. The state complies with the decree in good faith. Decades later, a party tries to “re-open” the case, asserting that the state is now violating the Eighth Amendment by allowing rats to run wild in the prisons. No one would doubt that the federal court must dismiss the motion because it lacks jurisdiction to decide matters unrelated to the scope of the original decree. If the court had no power to decide a new controversy through the medium of an old, unrelated decree, surely it has no power to order the state, under the guise of the original decree and without any new finding of illegal activity, to begin massive reporting on rat populations and control throughout the prison system. The DOJ here is chasing rats.
The court‘s order, imposing a vast and intrusive reporting regime on the State without any finding of unconstitutional conduct related to the Brumfield litigation, much less the filing of a proper lawsuit, “was so affected by fundamental infirmity” that the infirmity was properly raised after judgment, Espinosa, 559 U.S. at 270, and the court acted without jurisdiction and “in a manner inconsistent with due process of law.” Williams, 728 F.2d at 735.
CONCLUSION
DOJ‘s attempt to shoehorn its regulation of the voucher program into an entirely
The district court did not have jurisdiction over the subject matter of the DOJ‘s motion for further relief, which was outside the continuing jurisdiction of the 1975 order and the 1985 consent decree. Therefore, the April Order is void and the denial of the
For the foregoing reasons, the April 2014 order of the district court is REVERSED, the injunctive requirements for “further relief” are DISSOLVED, and the case is remanded with instructions to DISMISS the Motion for Further Relief.
GREGG COSTA, Circuit Judge, dissenting:
Louisiana, with post-Katrina New Orleans leading the way, has become an important, and early studies show successful,1 laboratory for education reform. One of those reforms provides scholarships to low-income students to enable them to attend better schools, the type of schools that most lawyers take for granted that their children will attend. Whether those students will continue to receive those “dynamic educational opportunities” (Maj. Op. at 291) is not at issue in this appeal. The ruling that the Intervenors challenge did not prevent the students from receiving scholarships for the 2014-15 school year or the current one. What the district court did was order that the State of Louisiana turn over demographic information about enrollment to the Department of Justice, which wants to determine if the voucher program will have a negative effect on schools subject to desegregation plans. For two reasons, that is not a decision that we should review given the procedural posture in which this appeal arises.
First, I have significant doubts that the Intervenors have standing to bring this appeal. This Court‘s earlier decision recognizing that the Intervenors have an interest in the case warranting intervention does not automatically establish that they have suffered a sufficient injury from the limited order being appealed to confer standing at this stage. See Diamond v. Charles, 476 U.S. 54, 68, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986) (“Diamond‘s status as an intervenor below, whether permissive or as of right, does not confer standing sufficient to keep the case alive in the absence of the State on this Appeal.“); see also Rohm & Hass Texas, Inc. v. Ortiz Bros. Insulation, Inc., 32 F.3d 205, 208 & n. 12 (5th Cir.1994) (“Merely because a party appears in the district court proceedings does not mean that the party automatically has standing to appeal the judgment rendered by that court.“). Certainly the Intervenors would have standing to appeal a decision invalidating the voucher program. That would implicate the substantial injury of losing an educational opportunity for one‘s child, which was the basis for allowing the intervention. Brumfield v. Dodd, 749 F.3d 339, 343-345 (5th Cir.2014). But the district court has not taken that step. At this point, it has deprived the students of nothing nor required them or their parents to do anything. Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (“The regulations under challenge here neither require nor forbid any action on the part of respondents.... [W]hen the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.‘“) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 562, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Only the State of Louisiana, which has not appealed, is under an obligation to produce the data. A third-party typically does not have standing to challenge an order requiring another party to produce information when no confidential data concerning the third party is at issue. There is no contention that is the case here. So the case for standing rests on a long chain of events that perhaps might lead one day to a ruling that would result in the injury of losing the scholarships: 1) the data would have to provide some arguable basis for concluding that the scholarship program is increasing segregation; 2) the Department of Justice (which by this point would likely be part of a different Administration) would have to seek to enjoin the scholarship program based on this data; 3) the district court would have to grant the motion. On its face, this many conditions entails a high degree of speculation. But the fact that the available data indicates that 85% of the scholarships in 2013 went to African-American students (Maj. Op. at 291) means it is extremely unlikely—indeed almost unfathomable—that release of the full data would ever lead to enjoining the voucher program on the ground that it is resegregating Louisiana schools. If nothing else, that court action is not “certainly impending.” Clapper v. Amnesty Int‘l USA, 133 S.Ct. 1138, 1150 (2013).
Admittedly, however, the line between imminent and speculative injuries can be a fuzzy one. See Summers, 555 U.S. at 505 n. 2 (“[I]mminence is concededly a somewhat elastic concept.“). More definite are the limitations on our ability to provide relief from a “void” judgment pursuant to
“Jurisdiction” is a term that can mean different things, usually related to a court‘s power or authority to do something. See United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (noting that a prior Supreme Court decision had relied on an “elastic conception of jurisdiction” different from the more limited notion of subject matter jurisdiction); see also BLACK‘S LAW DICTIONARY (10th ed.2014), 981-83 (listing four definitions for “jurisdiction” and over three pages of definitions for particular types of jurisdiction). But as the Supreme Court has recently explained, only a “certain type of jurisdictional error” justifies the “rare” act of
Callon Petroleum was a case brought in federal court to recover on a bond. By the time the court entered judgment in favor of the plaintiff, a state court delinquency proceeding for the defendant had commenced, which resulted in entry of an order that it was later argued prevented the federal court from entering judgment. The federal court‘s diversity jurisdiction was enough to defeat the
Just as the existence of diversity jurisdiction in Callon Petroleum was enough to defeat the
Subject matter jurisdiction and power are separate prerequisites to the court‘s capacity to act. Subject matter jurisdiction is the court‘s authority to entertain an action between the parties before it. Power under section 105 is the scope and forms of relief the court may order in an action in which it has jurisdiction.
Id. at 751 (quoting In re Am. Hardwoods, Inc., 885 F.2d 621, 624 (9th Cir.1989)).
United States v. Texas, 158 F.3d 299, 311 (5th Cir.1998), and the similar cases on which the majority opinion relies to establish that the problems it identifies with the court order are jurisdictional ones that implicate
It is not the purpose of
Rule 60(b) or the inherent powers of chancery to allow the modification of a consent decree merely because it reaches a result which could not have been forced on the parties through litigation.... The fact that a consent decree exceeds the law by prohibiting lawful conduct, or by granting an unauthorized remedy, does not render it void. Such efforts may be grounds for reversal on appeal of the judgment, but they are not grounds for collateral attack.
Safeway Stores, 611 F.2d at 799-800 (internal citations omitted).
The Supreme Court‘s recent
Espinosa also explains why it is important to preserve the limited meaning of a “void judgment“:
Although the term ‘void’ describes a result, rather than the conditions that render a judgment unenforceable, it suffices to say that a void judgment is one so affected by a fundamental infirmity that the infirmity may be raised even after the judgment becomes final. The list of such infirmities is exceedingly short; otherwise,
Rule 60(b)(4) ‘s exception to finality would swallow the rule.
Id. at 270.8 That interest in finality, along with the interest in restraint, is particularly strong here. The
The majority opinion‘s “rats” hypothetical undoubtedly describes an extreme abuse of judicial authority. But courts act outside the scope of their authority all the time, sometimes outrageously so but more often as a result of the difficulty and variety of the issues we face. It would likewise be a flagrant violation of the law for a court to award a $100 million punitive damages award against a municipality in a section 1983 case. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981) (holding that section 1983 does not permit an award of punitive damages against a municipality). Because of the blatant error, such an award would be readily correctable in the normal appellate posture. A punitive damages award exceeding the court‘s remedial power would not, however, mean that the court lacked subject matter jurisdiction. See Gil Ramirez Grp., L.L.C. v. Houston Indep. Sch. Dist., 786 F.3d 400, 408, 413 (5th Cir.2015) (affirming a dismissal pursuant to
The majority opinion may well be correct that the Department of Justice should have litigated this issue in the numerous school desegregation cases still pending in Louisiana federal courts rather than this one that focused on state aid to segregation academies. And the statistics showing that 85% of the scholarship recipients are African-American indicate that not just its litigation strategy, but also its concern about the potential effect of the voucher program on desegregation may have proven misguided. But vigilance about retrenchment in the area of school desegregation is not. See Marguerite L. Spencer and Rebecca Reno, The Benefits of Racial and Economic Integration in Our Education System: Why This Matters for Our Democracy, Kirwan Institute for the Study of Race and Ethnicity, The Ohio State University (Feb. 2009) at 13 (“The number of nearly all-minority schools (defined as a school where fewer than 5% of the students are white) doubled between 1993-2006.... In 2005-2006, 56% of Hispanic students attended a school in which at least half of the student population was Hispanic, and nearly 50% of black students attended a majority black school.“). For the years of blood, sweat, and tears that went into the efforts to achieve desegregation didn‘t just help us finally realize the promise of the Fourteenth Amendment. That work also resulted in integrated schools—albeit too few and too short-lived—that provided substantial gains for minority students. See, e.g., id. at 13 (“[D]esegregation has been positively linked to increases in black student achievement levels, generating gains on average of .57 of a grade year at the kindergarten level, and on average of .3 of a grade year in student performance at the elementary/secondary school level.... Some argue that since most school reforms have little or no effect on improving students’ outcomes, the modest impact that desegregation has on student achievement relative to these other reforms is substantial.“); Rucker C. Johnson, Long-Run Impacts of School Desegregation & School
In light of the standing and