Jackson Ex Rel. Jackson v. Los Lunas Community Program

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS January 23, 2018

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

WALTER STEPHEN JACKSON, by his
parents and next friends, Walter and Helen
Jackson; STEVE NUNEZ, by his guardian
and next friend, ARC of New Mexico;
MARY KATHERINE NOWAK, by her
next friend, James W. Ellis, Esquire;
RICHARD STANFIELD, by his father and
next friend, The Reverend Clyde Stanfield;
BETTY YOUNG, by her next friend, Mary
Dudley, Ph.D.; KELLY VAN CUREN, by
her parents and next friends, Ted and Sallie
Van Curen, on behalf of themselves and all
others similarly situated,

Plaintiffs - Appellees, No. 16-2172

and

ARC OF NEW MEXICO; AVA PEETS,

Plaintiffs Intervenors - Appellees,

v.

LOS LUNAS COMMUNITY PROGRAM;
NEW MEXICO DEPARTMENT OF
HEALTH; LYNN GALLAGHER, in her
official capacity as Secretary of the New
Mexico Department of Health; JILL
MARSHALL, in her official capacity as
Administrator for the Los Lunas
Community Program; NEW MEXICO
HUMAN SERVICES DEPARTMENT;
BRENT EARNEST, in his official capacity
as Secretary of the New Mexico Human
Services Department; NEW MEXICO
PUBLIC EDUCATION DEPARTMENT;
JOE D. CORDOVA, in his official
capacity as Director of the New Mexico
Vocational Rehabilitation Division,

Defendants - Appellants.
_________________________________

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:87-CV-00839-JAP-KBM)
_________________________________

Jerry A. Walz (James J. Grubel appeared with him on the briefs), Walz and Associates,
P.C., Albuquerque, New Mexico, for Defendants - Appellants.

Steven J. Schwartz, Center for Public Representation, Northampton, Massachusetts
(Cathy Costanzo, Center for Public Representation, Northampton, Massachusetts; Peter
Cubra, Albuquerque, New Mexico; Philip Davis, Albuquerque, New Mexico; Ann Sims,
Los Lunas, New Mexico; Tim Gardner and Nancy Koenigsberg, Disability Rights New
Mexico, Albuquerque, New Mexico, appeared with him on the briefs), for Plaintiffs -
Appellees.
_________________________________

Before MATHESON, McKAY, and McHUGH, Circuit Judges.
_________________________________

McHUGH, Circuit Judge.
_________________________________

This civil rights class action lawsuit was filed thirty years ago to challenge

various aspects of the institutionalization of developmentally disabled individuals at

two state-supported facilities in New Mexico. After a lengthy trial in 1990, the

district court ruled that Defendants—the two institutions and the individuals charged

with their operation—were violating class members’ federal constitutional and

statutory rights. The district court ordered the parties to develop a plan to cure the

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violations, and the plan was implemented over the ensuing years through several

consent decrees and other court-approved agreements (collectively, consent decrees).

Although the two institutions closed in the 1990s, the district court has continued to

monitor whether Defendants are in compliance with the obligations set forth in those

consent decrees (decree obligations). And in the twenty-five years since the court’s

initial ruling, the parties have agreed to, and the court has approved, numerous

additional decree obligations of varying specificity with which Defendants must

comply before the court will discontinue its oversight. As of the district court’s most

recent order, Defendants had yet to fulfill over 300 decree obligations.

In August 2015, Defendants moved under Federal Rule of Civil Procedure

60(b)(5) to vacate all consent decrees and to terminate the court’s oversight, arguing

that changed factual circumstances warrant the requested relief. The district court

denied the motion in June 2016. Defendants appealed. We vacate the 2016 Order and

remand for the district court to decide whether Defendants are currently violating

class members’ federal constitutional or statutory rights and to reassess the equity of

continuing federal oversight with the benefit of that determination.

I. BACKGROUND

To provide context for this dispute, we begin with an overview of the

procedural history of this multi-decade litigation. We then examine the district

court’s ruling on Defendants’ Rule 60(b)(5) motion under the governing legal

standard.

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 A. Litigation History

In July 1987, twenty-one developmentally disabled individuals brought this

class action lawsuit on behalf of themselves and others similarly situated. In their

complaint, Plaintiffs challenged the conditions of institutionalization at Fort Stanton

Hospital and Training School (Fort Stanton) and Los Lunas Hospital and Training

School (Los Lunas), both of which were state-supported institutions for the

developmentally disabled in New Mexico. Jackson v. Fort Stanton Hosp. & Training

Sch. (Jackson II), 964 F.2d 980, 985 (10th Cir. 1992). Plaintiffs sought to correct the

federal constitutional and statutory deficiencies of the conditions at Fort Stanton and

Los Lunas. Id. They also requested relief permitting developmentally disabled

persons residing at the institutions to live in integrated family-like settings within the

community. Id.

In June 1988, the district court allowed more than 125 parents and guardians

of residents at Fort Stanton and Los Lunas to intervene. Id. Like Plaintiffs,

Intervenors sought to bring the conditions at the two institutions into compliance

with federal constitutional and statutory law. Id. But Intervenors opposed Plaintiffs’

efforts to require mandatory transfer of the institutions’ residents to community-

based facilities. Id.

In June 1989, the district court certified a class of “all persons who at that time

resided at [Fort Stanton] or [Los Lunas], all persons who would become residents of

the institutions during the pendency of the action, and all persons who had been

transferred from these two institutions to other facilities funded by [D]efendants.” Id.

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1. The 1990 Order

After a prolonged trial, the district court issued, on December 28, 1990, an

extensive Memorandum Opinion and Order (1990 Order). Jackson v. Fort Stanton

Hosp. & Training Sch. (Jackson I), 757 F. Supp. 1243 (D.N.M. 1990), rev’d in part,

964 F.2d 980 (10th Cir. 1992). In the 1990 Order, the court “made detailed findings

of fact regarding almost every aspect of the conditions” at the two institutions,

Jackson II, 964 F.2d at 986, and determined that the conditions were statutorily and

constitutionally deficient in eighteen areas, Jackson I, 757 F. Supp. at 1315–16.1 The

court concluded that Defendants were discriminating against class members in

violation of § 504 of the Rehabilitation Act of 1973 by failing to provide adequate

accommodations for severely handicapped residents capable of residing in a

community setting, while simultaneously serving less severely handicapped

individuals in the community. See id. at 1297–99; see also 29 U.S.C. § 794. And the

court ruled that Defendants were violating class members’ substantive due process

rights under the Fourteenth Amendment and Youngberg v. Romeo, 457 U.S. 307

(1982). See Jackson I, 757 F. Supp. at 1305–13. Specifically, the court ruled that

1
The eighteen areas of deficiencies are: (1) individual program plans; (2)
medical records; (3) discharge plans; (4) data collection; (5) qualified mental
retardation professional services; (6) behavior management; (7) use of physical
restraints; (8) prevention of abuse of residents; (9) reduction of accidents and injuries
to residents; (10) reports of abuse, accidents, and injuries; (11) staff supervision; (12)
preservice training of staff; (13) in-service training of staff; (14) sufficiency of
professional staff; (15) adaptive equipment; (16) functional and chronologically age
appropriate programming; (17) coordination between residential areas and training
program areas; and (18) inadequate space in training program areas. Jackson v. Fort
Stanton Hosp. & Training Sch., 757 F. Supp. 1243, 1316–17 (D.N.M. 1990).

5
Defendants were violating due process by failing to provide residents of the two

institutions with minimally adequate medical care; by failing “to provide reasonable

conditions of safety for the residents”; by physically restraining residents as a result

of understaffing; by failing to provide “minimally adequate training” to the residents;

and by failing to implement recommendations by interdisciplinary treatment teams

(Teams)—consisting of qualified professionals—that certain of these residents should

be placed in community settings. Id. at 1306–07, 1312.2

The district court ordered the parties to work together in good faith “to

formulate by agreement a plan to correct” the eighteen areas of deficiencies at the

two institutions. Id. at 1315. The court required the parties to formulate a “detailed

written policy to be adopted by and followed at each institution,” to designate

persons responsible at each institution for implementing the correction plans, to

describe the “strategies to be adopted by each institution” in order to ensure

successful implementation of the correction plans, and to develop a “detailed

timetable establishing deadlines by which specific components of the correction plan

2
The district court further concluded that Defendants violated class members’
substantive due process rights by “considering the present availability of community
services when determining whether to recommend the residents for community
placement.” Jackson v. Fort Stanton Hosp. & Training Sch. (Jackson II), 964 F.2d
980, 986 (10th Cir. 1992). Accordingly, the district court permanently enjoined
Defendants “from permitting [Teams] to take into account the availability or lack of
availability of community services in reaching a recommendation as to whether a
resident should be served in the community.” Id. On appeal, we reversed this portion
of the 1990 Order, holding that the district court erred in ruling that due process
required Defendants be enjoined from permitting Teams to consider the availability
of community services when making treatment decisions. Id. at 992.

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for each deficiency will be achieved.” Id. at 1316. The court also set September 10,

1991, as the deadline for “complete correction of all deficiencies.” Id. And the court

required the parties to describe the “[m]eans of assuring continued compliance with

appropriate standards after correction of the deficiencies has been achieved.” Id.

The court further ordered Defendants to prepare, by March 1, 1991, “a written

plan of transfer to an appropriate community setting for each resident whose [Team]

has recommended placement in a community setting.” Id. at 1317. The court urged

Plaintiffs to confer in good faith with Defendants to resolve any concerns Plaintiffs

may have with the proposed plans and to amend the plans accordingly. Id. at 1316–

17. The court also afforded Plaintiffs the opportunity to “file with the court and serve

on [D]efendants a statement of any remaining objections they may have to, and their

proposals for amending, any particular plan.” Id.

Over the next several years, the district court entered various remedial orders

and continued to oversee enforcement of those orders.3 See Jackson v. Los Lunas Ctr.

(Jackson III), No. CIV 87-839-JAP/KBM, 2016 WL 9777237, at *2 (D.N.M. June 14,

2016).

3
In late 1993, Plaintiffs moved to amend their complaint by interlineation to
assert a claim under the Americans with Disabilities Act (ADA). Plaintiffs’ proposed
claim asserted that Defendants violated the ADA by excluding class members with
disabilities from certain public programs and places of public accommodation and
service and by segregating class members from their communities by congregating
them in Fort Stanton and Los Lunas. In early 1994, the court granted Plaintiffs’
motion.
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2. The 1994 Stipulation Concerning Fort Stanton

In 1994, New Mexico elected to close Fort Stanton by 1995 and to transfer all

of the residents at the institution to community-based services. In April 1994, the

parties filed a joint motion under Rule 60(b) and Rufo v. Inmates of Suffolk County

Jail, 502 U.S. 367 (1992), to modify portions of the district court’s 1990 Order, and

to terminate the 1990 Order’s requirements as to Fort Stanton upon closure of that

facility.

The district court found the parties’ joint motion “well-taken” and determined

that “the proposed modification is consistent with the rights of the classmembers.”

JA Vol. 3 at 582. As a result, the court relieved Defendants from making further

improvements to Fort Stanton. In doing so, the court stated, “[i]n the event that all

classmembers have been transferred from Fort Stanton to appropriate settings by

July 31, 1995, this Order and all portions of the [1990 Order] concerning corrections

of deficiencies . . . at Fort Stanton will hereby be terminated.” Id. at 584.

3. The 1997 Joint Stipulation on Disengagement (JSD) and Plan of Action

In October 1997, the parties presented the court with the JSD, a Plan of

Action, and a joint motion requesting the court’s approval of the JSD. According to

the parties’ stipulation, the JSD “does not seek a remedy for past violations of

Plaintiffs’ constitutional and statutory rights.” JA Vol. 7 at 1403. It is instead

designed to prevent future harm by ensuring that “Plaintiffs’ rights are not violated in

the community settings.” Id. at 1394. To that end, the JSD “defines the further

actions and requirements” that Defendants had to complete, “and the services,

8
supports, and benefits” that Defendants had to provide to class members, in order for

Defendants to comply with their obligations under the court’s existing orders. JA

Vol. 4 at 622.

The JSD acknowledges Defendants’ “substantial efforts to develop a non-

discriminatory service system for persons with developmental disabilities and to

provide appropriate community living arrangements and supports to classmembers.”

Id. at 620. And it states Defendants had made “efforts to reasonably accommodate

the residents of Fort Stanton and Los Lunas in community settings.” Id. at 621. As a

result of those efforts, Fort Stanton closed in March 1995 when all its residents had

transitioned to community settings, and Los Lunas closed in July 1997 when its last

resident transitioned to the community.

The JSD also includes a process for judicial disengagement of Defendants’

decree obligations. And it identifies the “Continued Improvement of Community

Services” as an area subject to disengagement. The Continuous Improvement

obligations address “a quality improvement approach that requires Defendants to

achieve a certain score on an annual audit.” Jackson III, 2016 WL 9777237, at *2

(internal quotation marks omitted). In the order denying Defendants’ Rule 60(b)(5)

motion that is the subject of this appeal, the district court recognized that Defendants

have achieved disengagement from fifty-six of the seventy Continuous Improvement

obligations. Id.

The parties identified additional obligations in the Plan of Action, which

Defendant Department of Health developed “to [e]nhance the Community Service

9
System” for persons with developmental disabilities. JA Vol. 4 at 629. The Plan of

Action contains “a narrative, desired outcomes, and specific activities for thirteen

components of the community service system.”4 Id. Those thirteen components are

contained in the Plan of Action’s thirteen attached appendices. Two more appendices

were later added by consent of the parties.

After holding a fairness hearing, the district court issued, in December 1997,

an order approving the JSD and the Plan of Action. The court noted the JSD “does

not call for immediate dismissal of this lawsuit,” but instead “contemplates continued

judicial oversight that could extend well into the next [millennium].” Id. at 801. The

court further observed that the JSD “states the parties’ intention to fulfill most of the

activities described in the Plan of Action by December 31, 1998, but makes an

exception for certain requirements that may not be met until December 31, 2000.” Id.

4. The 2005 Stipulation to Resolve Motion for Noncompliance (Appendix A)

In May 2004, Plaintiffs moved for an order to show cause and for further

remedial relief to require Defendants to comply with the court’s December 1997

order approving the JSD and the Plan of Action. In June 2004, Plaintiffs moved for

an Order to Reengage Effective Case Management, Desired Outcome A, Under the

Plan of Action.

4
The thirteen components are (1) quality enhancement, (2) community
incident management system, (3) training, (4) management information systems, (5)
individual service planning, (6) case management, (7) behavioral services, (8) crisis
response, (9) sexuality, (10) supported employment, (11) assistive technology, (12)
medical services, and (13) regional offices.
10
 In May 2005, the parties filed a Joint Stipulation on Agreed Actions to Comply

with Joint Stipulation of Disengagement and Plan of Action and to Resolve Pending

Motions to Show Cause and to Re-engage (2005 Stipulation). Attached to the 2005

Stipulation is “Appendix A[:] Agreed Actions to Address Contempt Motions”

(Appendix A). JA Vol. 10 at 1903. The 2005 Stipulation states that it “is intended to

obligate Defendants to take certain actions outside the Plan of Action as more

specifically outlined in Appendix A.” Id. at 1898. “[T]he actions identified in

Appendix A are intended to facilitate compliance with the JSD, to promote

completion of . . . Audit Recommendations, to further address Case Management

even though Plan of Action Desired Outcomes related to Case Management have

been previously disengaged by an order of the Court and to address certain aspects of

Vocational Rehabilitation.” Id. at 1898–99. The 2005 Stipulation clarifies that it is

not intended to change or modify the terms of the JSD, which remain in effect. And it

further states that Defendants “agree to implement all of the actions identified and

listed in Appendix A,” and that the parties agree some of the Appendix A actions

supplanted or modified activities listed in the Plan of Action. Id. at 1899.

Appendix A imposes 107 specific obligations on Defendants. Some of the

obligations are identified as “complete,” while many obligations were scheduled to

be completed by May 2006 or in 2007. Although those deadlines were not met,

Defendants represent that one third of the activities in Appendix A have been

disengaged. Jackson III, 2016 WL 9777237, at *4.

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 The district court issued an order adopting the parties’ stipulation the same day

the parties submitted it.

5. The 2012 Order

In mid-July 2010, Plaintiffs filed another Motion for Further Remedial Relief

to Remedy Noncompliance. After full briefing, the district court denied the motion

without prejudice so Plaintiffs could refile after an evidentiary hearing scheduled for

June 2011.

On April 26, 2011—the day before the pretrial conference for the evidentiary

hearing—Defendants filed a Rule 60(b)(5) motion to terminate all remaining orders

and to conclude the court’s oversight. Defendants maintained that they have made

more than a reasonable effort to comply with the court’s orders, that they have

substantially complied with all existing orders, and that changed factual conditions

make continuing compliance substantially more onerous. The court held the motion

in abeyance and suspended briefing on it until the completion of the evidentiary

hearing, which occurred from June 13 to June 17, 2011. Jackson III, 2016 WL

9777237, at *4. The court later terminated the pending Rule 60(b)(5) motion without

deciding its merits. Id. at *4 n.12.

In November 2011, after the evidentiary hearing, Plaintiffs filed a Renewed

Motion for Further Remedial Relief to Remedy Noncompliance. Plaintiffs argued that

Defendants had failed to comply with the JSD, the Plan of Action, Appendix A, the

Rehabilitation Act, and the ADA (collectively, decrees). Plaintiffs also asked the

court to appoint a Jackson Compliance Administrator (Compliance Administrator) to

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oversee and ensure Defendants’ compliance. In October 2012, the district court

issued a 206-page, Findings of Fact and Conclusions of Law (2012 Order). The court

praised Defendants’ “innovations and progress,” but determined that Defendants

were still in substantial noncompliance with the decree obligations. JA Vol. 25 at

5303. Indeed, the court identified instances of noncompliance in the areas of health,

safety, and supported employment.

Based on the evidence before it, however, the court stated it “is unable to

conclude that Defendants have violated the Rehabilitation Act and ADA.” The court

explained:

To start with, the Court could not conclude that Defendants have
discriminated against severely disabled class members with respect to
the provision of health care services. In fact, the Court commends
Defendants for accommodating those severely disabled class members
who live in rural New Mexico by providing them meaningful access to
health care services . . . and for developing more and better health care
services directed to severely disabled persons. There is, however, a
question as to whether Defendants violated the Rehabilitation Act and
ADA by intentionally denying severely disabled class members
supported employment services equivalent to those received by less
severely disabled persons. Unfortunately, that question of disparate
treatment cannot be analyzed at this time, but must be further briefed.
On the other hand, the Court was unable to find a violation of the
Rehabilitation Act and ADA when severely disabled class members
choose to participate in segregated, congregate day services while less
severely disabled persons more often chose to engage in supported
employment.

Id. at 5304–05.

The court also noted that Defendants “are close to substantially complying

with [their] obligations,” and suggested that “the parties reconsider the descriptions

of the more broadly stated obligations and restate them in language that makes the

13
obligations achievable.” Id. at 5303–04. After all, “many of the obligations are

described in language that is more aspirational in nature than operational.” Id. at

5304. Finally, the court granted Plaintiffs’ request to appoint a Compliance

Administrator, who could “prod Defendants into final substantial compliance.”5 Id. at

5305.

6. The 2015 Revised Table IV

After the district court issued its 2012 Order, the parties were to develop a

consolidated remedial plan in the areas of health, safety, and supported employment

to address the identified violations. See Jackson III, 2016 WL 9777237, at *6. The

parties, counsel, the Compliance Administrator, and the court then worked together

for over two years before finalizing a consolidated plan. Id.

In June 2015, the parties jointly filed the 2015 Revised Table IV—which is a

final list of objectives in the areas of health, safety, and supported employment—

along with evaluative components (or disengagement criteria) and projected

completion dates for each objective. In November 2015, the parties jointly filed a

Stipulated Agreement on Disengagement Process for Revised Table IV. Under the

5
After the court issued its 2012 Order, Plaintiffs moved to modify the 2012
Order with respect to their claims under the Rehabilitation Act and the ADA.
Plaintiffs asked the court to delete its findings and conclusions “on all discrimination
claims regarding severity of disability and segregation,” to strike those portions of
their November 2011 Renewed Motion for Remedial Relief to Remedy
Noncompliance based on the Rehabilitation Act and the ADA, and to vacate the
pertinent sections from its 2012 Order. JA Vol. 25 at 5308–09. The court denied the
motion to modify, but, on its own initiative, granted Plaintiffs leave to file a motion
seeking relief on their disparate treatment claim. Plaintiffs never filed a motion
seeking relief on that claim.
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agreed-upon disengagement process, Defendants would submit a request for

disengagement of a specific decree objective to the Compliance Administrator, who

would then make a written “determination” on whether the disengagement criteria

had been met. If the Compliance Administrator did not agree that the criteria had

been met, then Defendants could withdraw their request for a determination or pursue

a disengagement motion with the court.

The court noted that, as of May 2016, the Compliance Administrator had

issued approximately three determinations on Defendants’ requests, with roughly 197

decree obligations remaining for which the Compliance Administrator had not issued

preliminary determinations. Jackson III, 2016 WL 9777237, at *7 n.20. The court

also stated Revised Table IV did not replace or modify existing decree obligations

that were not the subject of Plaintiffs’ Renewed Noncompliance Motion and the

court’s 2012 Order. Id. at *8. Thus, Defendants must demonstrate substantial

compliance with the earlier outstanding decree obligations, in addition to those listed

in Revised Table IV. Id. The court estimated that, between the JSD, the Plan of

Action, Appendix A, and Revised Table IV, Defendants must still show substantial

compliance with approximately 307 decree obligations. Id. at *9.

B. District Court’s Denial of Defendants’ Rule 60(b)(5) Motion

In August 2015, Defendants filed their current motion under Rule 60(b)(5),

arguing that factual circumstances have changed to the extent that the district court

should vacate all remaining orders and conclude its oversight entirely. Defendants

identified four changed factual circumstances they claim warrant vacatur of all

15
pertinent decrees and termination of the case. First, Defendants argued that their

decree obligations have increased in number and complexity to the point they will

never be able to satisfy the “labyrinth of obligations” that are ever-changing, ever-

increasing, and not subject to objective measurement. Jackson III, 2016 WL

9777237, at *11.

Second, Defendants argued that some of their obligations are now outdated:

1) the JSD provisions about community practice improvements at [Los
Lunas], which are no longer relevant as that institution closed in 1997;
2) the JSD formulate for disengagement of the Continuous Improvement
outcomes, which is “convoluted,” “confusing,” and “unworkable”;
3) the JSD Continuous Improvement obligations that “are no longer
programmatically sound and are no longer the desire” of [class
members],” and that are not relevant to the present-day needs of [class
members]; 4) the 1997 Plan of Action obligations that have been
“morphed into new requirements” under Revised Table IV and that are
“long detached from remedying the original constitutional issues”; and
5) Appendix A obligations that consist of vague and aspirational
language, making disengagement impossible.

Id. at *12 (citations omitted).

Third, while conceding they have not substantially complied with all their

decree obligations, Defendants maintained they have remedied all constitutional

violations. Id. They argued they have thus attained the “objects” of the consent

decrees, and they have corrected all eighteen areas of deficiencies the district court

identified in its 1990 Order. Id. at 12–13. And if more is required, they insisted, this

case will remain a never-ending process of continuing quality control. Id. at 12.

Fourth, Defendants argued that the increased litigation costs inhibit New

Mexico’s ability to fund other important programs. Id. at *12–13. For instance, New

16
Mexico has spent more than $50 million related to this litigation in the last eight

years. Id. at *12. And, as of 2009, the average yearly cost to provide services to class

members had risen from $67,290.00 to $135,535.00 per class member, while New

Mexico’s $32,992.00 per capita income was the ninth lowest in the United States. Id.

at *13.

Based on these four changed circumstances, Defendants contended that notions

of federalism supported their request for relief. Indeed, they argued that federalism

concerns are heightened here because the consent decrees have the effect of dictating

state and local budget priorities and improperly depriving state officials of their

designated legislative and executive powers. Id. at *13.

In an order issued in June 2016, the court ruled that Defendants had not met

their burden to show the existence of a significant change in fact warranting vacatur

of all pertinent orders and termination of the case. First, the court stated that “while

Defendants’ obligations are onerous,” Defendants never identified when these

asserted changed factual circumstances occurred; indeed, “[s]ome of the complained

about developments have been happening for years.” Id. at *14.

Next, the court concluded that Defendants have not shown that the objects of

the pertinent decrees have been attained. While the court recognized that the decrees

were designed to restore class members to the position they would have occupied

absent violations of federal law, the court stated that the “more specific ‘essential

purposes’” of those decrees “are to provide class members with adequate health care,

a reasonably safe environment, and supported employment opportunities.” Id.

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(quoting 2012 Order at 33). And based on Defendants’ concessions that they have not

substantially complied with all the decree obligations, the court concluded that

Defendants “have not fulfilled the essential purposes of the pertinent decrees.” Id.

Further, the court found Defendants’ assertion that they long ago remedied all

constitutional violations to be “somewhat misleading.” Id. at *14–15. The court

explained that the decree obligations in the JSD, the Plan of Action, and Appendix A

“all flowed from [its] original findings of [federal] violations in 1990.” Id. at *15.

And it noted that Revised Table IV was developed in response to the 2012 findings of

approximately 100 decree violations. Id. The court stated that it “correlated its

specific findings of violations in 2012 with enumerated requirements in the JSD, Plan

of Action, and Appendix A.” Id. “Stated differently, the October 2012 violations

evolved from compliance issues concerning obligations that first appeared in the

JSD, Plan of Action, and Appendix A that Defendants had not yet satisfied.” Id.

The court also took issue with Defendants’ characterization of the 2012 Order

as finding no ongoing violations of federal law. The court clarified that it had made

no findings in its 2012 Order on continuing violations of federal law. Id. Although

Plaintiffs had argued that Defendants violated the Rehabilitation Act and the ADA,

the court ruled then that “there was not sufficient evidence of discrimination under”

either Act. Id. But the court explained that it was not asked, and thus made no

findings on, whether Defendants otherwise continued to violate class members’

constitutional rights. Id. With respect to the 2016 motion to terminate oversight, the

district court likewise did not resolve the question of current compliance with federal

18
law, stating it “is not in the position to assess, and, therefore, cannot conclude that

Defendants are no longer violating constitutional or federal law.” Id. at *16. But

“[b]ecause all of [the] outstanding obligations grew out of the Court’s 1990 Order

and/or the related 2012 findings of violations,” the district court concluded that

“Defendants have not convinced the Court that they have satisfied the essential

purposes of the JSD, Plan of Action, Appendix A, and Revised Table IV.” Id. at 16.

The court then rejected Defendants’ claim that principles of federalism

dictated the termination of oversight. The court acknowledged that the Supreme

Court, in Horne v. Flores, 557 U.S. 433 (2009), stated that federalism concerns are

heightened when a consent decree has the effect of dictating state budget allocations.

Id. And it conceded that “increasing fees and costs associated with this litigation are

detrimental to the State’s interest.” Id. But the court reasoned that “first and

foremost,” the Horne Court asked if the State had fulfilled its obligations under

federal law and achieved the objectives of the pertinent order. Id. The district court

answered that question in the negative, stating: “Unlike Horne, Defendants have not

shown that they have fulfilled their outstanding obligations, ‘by other means.’” Id. at

*17 (quoting Horne, 557 U.S. at 439).

Ultimately, the court concluded that Defendants “have not come close to

showing that vacatur of all of the orders and decrees is suitably tailored to the

proposed changed circumstances.” Id. Nor have Defendants “demonstrated that a

durable remedy is in place sufficient to justify vacatur of all of the Court’s orders.”

Id. at *18. In other words, Defendants had not shown “that it is unlikely that the

19
prohibited conditions or actions will recur.” Id. (quoting LaShawn A. ex rel. Moore v.

Fenty, 701 F. Supp. 2d 84, 111 (D.D.C. 2010), aff’d sub nom. LaShawn A. ex rel.

Moore v. Gray, 412 F. App’x 315 (D.C. Cir. 2011)). The court therefore denied the

motion.

II. ANALYSIS

On appeal, Defendants assert that the district court abused its discretion when

it denied their Rule 60(b)(5) motion. Defendants contend significant changes in

factual circumstances warrant termination of all consent decrees and of the court’s

oversight. Specifically, they claim that compliance with the decrees has become

substantially more onerous, the decrees have become unworkable due to unforeseen

obstacles, and continued enforcement of the decrees would be detrimental to the

public interest. They also argue that the district court misapplied Horne by requiring

them to show attainment of specific essential purposes identified by the district court

rather than compliance with federal law.

A. Appellate Jurisdiction

Before addressing the merits, we must first resolve the parties’ dispute about

whether the district court’s June 2016 order is a final, appealable order under 28

U.S.C. § 1291. We have appellate jurisdiction over “final decisions of the district

courts of the United States.” 28 U.S.C. § 1291. “A ‘final decision’ is ordinarily one

that ‘ends the litigation on the merits and leaves nothing for the court to do but

execute the judgment.’” Hayes Fam. Tr. v. State Farm Fire & Cas. Co., 845 F.3d

997, 1003 (10th Cir. 2017) (quoting Catlin v. United States, 324 U.S. 229, 233

20
(1945)); see also D&H Marketers, Inc. v. Freedom Oil & Gas, Inc., 744 F.2d 1443,

1444 (10th Cir. 1984) (en banc) (stating that § 1291 “has consistently been held to

require the termination of all matters as to all parties and causes of action before an

appeal may be taken”). “[P]ut differently,” a final decision is “one by which the

district court ‘disassociates itself from a case.’” McClendon v. City of Albuquerque,

630 F.3d 1288, 1292 (10th Cir. 2011) (quoting Swint v. Chambers Cty. Comm’n, 514

U.S. 35, 42 (1995)). Although “a final judgment is the paradigmatic ‘final decision’

appealable under § 1291,” not “every case with a final judgment in it is appealable.”

Id. Instead, “every post-judgment decision must be assessed on its own terms to

determine whether it is a final decision amenable to appeal.” Id. at 1293.

As relevant here, “[t]he general rules governing our review of a district court’s

order granting or denying a Rule 60(b) motion are fairly well settled.” Stubblefield v.

Windsor Capital Grp., 74 F.3d 990, 993 (10th Cir. 1996). “We have jurisdiction

under 28 U.S.C. § 1291 to reach the merits of an appeal from a denial of a Rule 60(b)

motion, provided the ruling or judgment the Rule 60(b) motion challenged was a final

decision of the district court.” Id. (internal quotation marks omitted); see also

McClendon, 630 F.3d at 1294 (recognizing that a district court’s denial of a Rule

60(b) motion “usually qualif[ies] as [a] final decision[] for purposes of § 1291

because [it] usually signal[s] that the district court’s business is done, that it has

disassociated itself from the case, [and] that we may act without stepping on the

district court’s toes”).

21
 Here, Defendants moved under Rule 60(b) to vacate all pertinent orders—the

JSD, the Plan of Action, Appendix A, and Revised Table IV—and to terminate this

case. The parties and district court agree that the pertinent orders are consent decrees.

See Jackson III, 2016 WL 9777237, at *9. And all agree that consent decrees are, in

effect, final decisions within the meaning of Rule 60(b). See Johnson v. Lodge #93 of

Fraternal Order of Police, 393 F.3d 1096, 1101 (10th Cir. 2004) (“A consent decree

is a negotiated agreement that is entered as a judgment of the court. Consent decrees

. . . have characteristics both of contracts and of final judgments on the merits.”

(internal quotation marks omitted)); see also V.T.A., Inc. v. Airco, Inc., 597 F.2d 220,

224 (10th Cir. 1979) (noting that when “the underlying judgment was by consent [it]

has the same force and effect for [Rule] 60(b) purposes as a judgment rendered on the

merits following trial”). Because the pertinent orders are consent decrees that are

final orders under Rule 60(b), it necessarily follows that the district court’s June 2016

order denying relief under Rule 60(b)(5) from those consent decrees is also final and

appealable under § 1291. See Jeff D. v. Kempthorne, 365 F.3d 844, 850 (9th Cir.

2004) (“Because consent decrees are considered final judgments we have jurisdiction

to review the claims raised in the motion to vacate the consent decrees pursuant to 28

U.S.C. § 1291.” (citation omitted)).

Plaintiffs disagree. Relying on McClendon, they argue the district court’s June

2016 order is not a final, appealable order because it signals that more litigation is on

the way. Plaintiffs believe future litigation will occur when they inevitably file

another motion for remedial relief to remedy Defendants’ noncompliance with the

22
consent decrees. In other words, the June 2016 Order is not final because the district

court will continue to monitor Defendants’ compliance with its prior consent decrees

(i.e., the JSD, the Plan of Action, Appendix A, and Revised Table IV).

But under McClendon, that the district court may have to continue to oversee

Defendants’ compliance with the consent decrees is not enough to strip the June 2016

order of its status as a final decision. Instead, the relevant inquiry is whether the June

2016 order will result in more litigation on the merits in the district court. See

McClendon, 630 F.3d at 1292–94. If the June 2016 order “ensures litigation on the

merits will continue in the district court,” then it is not final under § 1291. Id. at

1293. But if it does not, and it is otherwise a denial of a Rule 60(b) motion

challenging a final decision of the district court, then it is a final decision under

§ 1291. See id. at 1293–94; Jeff D., 365 F.3d at 850.

Under this formulation, the June 2016 order is a final, appealable decision.

First, the June 2016 order does not signal that more litigation on the merits is on the

way. In fact, the 1990 order, which followed a lengthy trial, resolved the merits of the

litigation, and the district court retained jurisdiction only to oversee implementation

of the ensuing consent decrees. Second, as discussed above, the 2016 order denied a

Rule 60(b) motion challenging several final decisions of the district court.

To be sure, the June 2016 order does not result in the district court dissociating

itself from the case. Much the opposite, it means the district court will, as it has since

it issued the 1990 Order, continue to oversee Defendants’ compliance with the

pertinent consent decrees. But this fact alone does not deprive us of jurisdiction.

23
After all, each decree was a final, appealable decision under § 1291, even though the

district court continued to oversee each decree’s implementation. See Johnson, 393

F.3d at 1101; V.T.A., 597 F.2d at 224. If the district court’s continued oversight

would not have divested us of appellate jurisdiction then, it should not do so now.

In sum, the finality test asks whether the ruling challenged in the denied Rule

60(b) motion was “a final decision of the district court.” Stubblefield, 74 F.3d at 993.

Here, that test is met. The June 2016 order is a final, appealable order and, thus, we

have appellate jurisdiction under § 1291.

B. The Rule 60(b)(5) Motion

We now turn to Defendants’ argument that termination of all pertinent orders

and of this case is appropriate due to significant changes in factual circumstances.

Our analysis proceeds in three parts. First, we discuss the relevant standard of

review. Second, we outline the law governing Rule 60(b)(5) motions in institutional

reform litigation. Third, we apply that standard to the facts of this case.

1. Standard of Review

We review a district court’s denial of a Rule 60(b) motion for an abuse of

discretion. Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000). In

the Rule 60(b) context, we review the district court’s ruling only “to determine if a

definite, clear or unmistakable error occurred below.” Zurich N. Am. v. Matrix Serv.,

Inc. 426 F.3d 1281, 1289 (10th Cir. 2005) (internal quotation marks omitted). “A

reviewing court may reverse only if it finds a complete absence of a reasonable basis

and is certain that the decision is wrong.” Id. (internal quotation marks omitted). “A

24
clear example of an abuse of discretion exists where the trial court fails to consider

the applicable legal standard or the facts upon which the exercise of its discretionary

judgment is based.” Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997). An

appeal from the denial of a Rule 60(b) motion raises for our review only the district

court’s order denying the motion, and not the underlying judgment itself. Servants of

Paraclete, 204 F.3d at 1009.

2. Legal Standard

A Rule 60(b) motion for relief from judgment is an extraordinary remedy and

may be granted only in exceptional circumstances. Id.; see V.T.A., Inc., 597 F.2d at

223 n.7 (10th Cir. 1979). The motion may not be used as a substitute for direct

appeal. See Servants of Paraclete, 204 F.3d at 1009.

Rule 60(b)(5) permits relief from a judgment or order if “[1] the judgment has

been satisfied, released, or discharged; [2] it is based on an earlier judgment that has

been reversed or vacated; or [3] applying it prospectively is no longer equitable.”

Fed. R. Civ. P. 60(b)(5) (emphasis added). Use of the disjunctive “or” demonstrates

“that each of the provision’s three grounds for relief is independently sufficient and

therefore that relief may be warranted even if [a movant has] not ‘satisfied’ the

original order.” Horne v. Flores, 557 U.S. 433, 454 (2009). Defendants seek relief on

the ground that ongoing enforcement of the pertinent decrees is no longer equitable.

We now turn to a discussion of the limits of federal involvement in

institutional reform litigation and of the two leading Supreme Court cases addressing

25
the no-longer-equitable basis for Rule 60(b)(5) relief: Rufo v. Inmates of Suffolk

County Jail, 502 U.S. 367 (1992), and Horne v. Flores, 557 U.S. 433 (2009).

a. Consent Decrees Generally

A consent decree “entered in federal court must be directed to protecting

federal interests.” Frew v. Hawkins, 540 U.S. 431, 437 (2004). The consent decree

“must spring from, and serve to resolve, a dispute within the court’s subject-matter

jurisdiction.” Id. (citing Firefighters v. Cleveland, 478 U.S. 501, 525 (1986)).

Equity requires a federal court fashioning and implementing a consent decree

to focus on three factors. See Milliken v. Bradley, 433 U.S. 267, 280 (1977). First, a

federal consent decree must “be remedial in nature” and thus “designed as nearly as

possible to restore the victims of [illegal] conduct to the position they would have

occupied in the absence of such conduct.” Id. at 280 (internal quotation marks

omitted).

Second, the nature and scope of the remedy provided by a federal consent

decree depends on the nature and scope of the federal-law violation. Id. at 280, 282.

This means a “federal-court decree[] must directly address and relate to the [federal-

law] violation itself.” Id. at 282. And it must be “tailored to cure the condition that

offends” federal law. Id. (internal quotation marks omitted). But a decree exceeds

appropriate limits if it is “aimed at eliminating a condition that does not violate

[federal law] or does not flow from such a violation.” Id.

Third, federal courts “must take into account the interests of state and local

authorities in managing their own affairs,” consistent with the demands of federal

26
law. Id. at 280–81. Indeed, principles of federalism require that federal courts give

“significant weight to the views of government officials,” and that “state officials

with front-line responsibility for administering [a state program] be given latitude

and substantial discretion.” Frew, 540 U.S. at 442 (internal quotation marks omitted).

Importantly, federal consent decrees are temporary solutions that may be kept

in place only as long as necessary to cure an unlawful condition. See Missouri v.

Jenkins, 515 U.S. 70, 88-89 (1995). The Supreme Court has cautioned that federal

courts should not continue their “oversight of state programs for long periods of time

. . . absent an ongoing violation of federal law.” Frew, 540 U.S. at 441. Thus, a

“federal court must exercise its equitable powers to ensure that when the objects of

the decree have been attained, responsibility for discharging the State’s obligations is

returned promptly to the State and its officials.” Id. at 442. Keeping a consent decree

in place any longer than necessary to assure compliance with federal law risks

violating principles of federalism and “improperly depriv[ing] future officials of their

designated legislative and executive powers.” Id. at 441; see also John B v. Emkes,

710 F.3d 394, 398 (6th Cir. 2013) (stating that a consent decree “may remain in force

only as long as it continues to remedy a violation of federal law”); United States v.

Washington, 573 F.3d 701, 710 (9th Cir. 2009) (“The [Supreme] Court has repeatedly

reminded us that institutional reform injunctions were meant to be temporary

solutions, not permanent interventions, and could be kept in place only so long as the

violation continued.”).

27
 b. Rufo v. Inmates of Suffolk County Jail

In Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 372 (1992), pretrial

detainees held at a county jail in Massachusetts sued the county, state, and related

entities, claiming they were being held under unconstitutional conditions. The district

court ruled that conditions at the jail were constitutionally deficient; thus, the district

court enjoined the state defendants from, among other things, housing two or more

inmates in a single cell. Id. at 372–73. When conditions at the jail did not improve,

the district court ordered the state defendants to renovate another existing facility to

serve as a substitute detention center. Id. at 373–74. The First Circuit affirmed and

ordered that the jail be closed unless the state defendants timely presented a plan to

create a constitutionally adequate facility for the pretrial detainees. Id. at 374.

Days before the deadline to present a plan for a new facility, the state

defendants submitted a plan to create a substitute facility with only single-occupancy

cells, and the district court entered a consent decree obligating the state defendants to

construct a facility containing 309 single occupancy rooms. Id. at 374–75. When the

inmate population outpaced population projections, the parties moved the district

court to modify the decree to provide a facility with an increased number of cells. Id.

at 375–76. The district court granted the modification on the condition that “single-

cell occupancy is maintained” under the new plan for the facility. Id. at 376.

The state defendants again moved to modify the consent decree, this time to

allow for double bunking of male detainees in roughly one-third of the cells in the

new jail. Id. The state defendants attributed the need for a second modification to a

28
further increase in the population of pretrial detainees. Id. The state defendants

argued that the continued increase in the pretrial detainee population—a change in

fact—coupled with a change in law regarding the constitutionality of double bunking

pretrial detainees, see Bell v. Wolfish, 441 U.S. 520 (1979), supported the requested

modification. Rufo, 502 U.S. at 376. The district court denied the motion, in part,

because the state defendants failed to make a “clear showing of [a] grievous wrong

evoked by new and unforeseen conditions.” Id. at 377 (quoting United States v. Swift

& Co., 286 U.S. 106, 119 (1932)). The district court explained that modification

would violate a primary purpose of the decree—to provide for a separate cell for each

detainee—although it never decided whether double celling would be

unconstitutional. Id. at 377. The First Circuit affirmed. Id.

The Supreme Court granted certiorari and remanded so the lower courts could

apply the proper standard to modification requests under Rule 60(b)(5). See id. at

393. The Court began by emphasizing the need for flexibility when considering a

motion for modification of a consent decree in institutional reform litigation. Id. at

380–83. After all, consent decrees in such cases “often remain in place for extended

periods of time, [meaning] the likelihood of significant changes occurring during the

life of the decree is increased.” Id. at 380. The Court further explained that the

experience of the Courts of Appeals “demonstrated that a flexible approach is often

essential to achieving the goals of reform litigation,” as the Courts of Appeals

observed that consent decrees frequently “reach beyond the parties involved directly

29
in the suit and impact [] the public’s right to the sound and efficient operation of its

institutions.” Id. at 381 (internal quotation marks omitted).

The Court then outlined what a movant must show when seeking modification

of a consent decree under Rule 60(b)(5). The party seeking modification of a consent

decree bears the burden of showing that “a significant change either in factual

conditions or in law” warrants revision of the decree. Id. at 384. Changed factual

circumstances may warrant modification of a consent decree when the changed

circumstances “make compliance with the decree substantially more onerous,” when

“a decree proves to be unworkable because of unforeseen obstacles,” or when

“enforcement of the decree without modification would be detrimental to the public

interest.” Id. at 384. A party need not show that a change in fact was both unforeseen

and unforeseeable. Id. at 385.

Conversely, a court should deny a party’s request for a modification under

Rule 60(b)(5) if the party merely establishes that “it is no longer convenient [for the

moving party] to live with the terms of a consent decree.” Id. at 383. Furthermore, a

modification should be denied “where a party relies upon events that actually were

anticipated at the time it entered into a decree.” Id. at 385. The Court explained:

If it is clear that a party anticipated changing conditions that would
make performance of the decree more onerous but nevertheless agreed
to the decree, that party would have to satisfy a heavy burden to
convince a court that it agreed to the decree in good faith, made a
reasonable effort to comply with the decree, and should be relieved of
the undertaking under Rule 60(b).

Id.

30
 If a party meets its burden of establishing a change in fact that warrants

modification of a consent decree, the district court should examine “whether the

proposed modification is suitably tailored to the changed circumstance.” Id. at 391.

This analysis focuses on whether the proposed modification “is tailored to resolve the

problems created by the change in circumstances.” Id. In performing this analysis, a

court must bear in mind that the public interest and principles of federalism require a

federal court to defer to state or local government officials and to consider a state or

local government’s financial constraints. Id. at 392. But a modification “must not

create or perpetuate a constitutional violation.” Id. at 391. Additionally, in accord

with the requirement that a modification be tailored to the change in circumstances,

the existence of a change in circumstances often will not justify a modification to the

consent decree that lowers the terms of the consent decree to “the constitutional

floor.” Id. In this sense, a court modifying a consent decree may “do no more” to the

consent decree than is warranted by the change in circumstances and “should not

‘turn aside to inquire whether some of the provisions of the decree . . . could have

been opposed with success if the defendants had offered opposition.’” Id. at 391-92

(quoting United States v. Swift & Co., 286 U.S. 106, 116-17 (1932)). Thus, even

where a change in circumstances occurs, the plaintiff will retain those benefits

secured under the consent decree that are not impugned by the change in

circumstances. See id.

The Court then instructed the district court on remand to first consider whether

the purported change in factual circumstances—the upsurge in the pretrial detainee

31
population—was foreseen by the state defendants. Id. at 385. But the Court also

advised that the district court erred by concluding that modification was

inappropriate simply because it would not provide for a separate cell for each

detainee. The Court explained:

Even if the decree is construed as an undertaking by [the state
defendants] to provide single cells for pretrial detainees, to relieve
[them] from that promise based on changed conditions does not
necessarily violate the basic purpose of the decree. That purpose was to
provide a remedy for what had been found, based on a variety of factors,
including double celling, to be unconstitutional conditions obtaining in
the [jail]. If modification of one term of a consent decree defeats the
purpose of the decree, obviously modification would be all but
impossible. That cannot be the rule. The District Court was thus in error
in holding that . . . modification of the single cell requirement was
necessarily forbidden.

Id. at 387.

c. Horne v. Flores

In Horne v. Flores, 557 U.S. 433, 439 (2009), the Supreme Court was again

tasked with determining whether the lower courts applied the correct standard in

denying a Rule 60(b)(5) motion. There, a class of English Language-Learner (ELL)

students and their parents in Arizona sued the state for violating the Equal

Educational Opportunities Act of 1974 (EEOA), which requires a state “to take

appropriate action to overcome language barriers that impede equal participation by

its students in its instructional programs.” Id. at 438–39. After a trial, the district

court concluded that “defendants were violating the EEOA because the amount of

funding the State allocated for the special needs of ELL students (ELL incremental

32
funding) was arbitrary and not related to the actual funding needed to cover the costs

of ELL instruction.” Id. at 441.

Over the next several years, the district court entered various additional orders

and injunctions aimed at improving the state’s ELL incremental funding. Id. For

instance, the court ordered the state to “prepare a cost study to establish the proper

appropriation to effectively implement ELL programs.” Id. (internal quotation marks

omitted). And it later required the state to, within ninety days of the order’s issuance,

“appropriately and constitutionally fund the state’s ELL programs taking into account

the [court’s] previous orders.” Id. After the state failed to comply with these orders,

the district court held the state in contempt and imposed a fine for every day until the

state came into compliance. Id. at 442.

After accruing over $20 million in fines, the state legislature passed HB 2064,

a bill that was designed “to implement a permanent funding solution to the problems

identified” by the district court. Id. The Governor allowed HB 2064 to become law

without her signature, and the state presented it to the district court for approval. Id.

at 443. Because the Governor did not approve of HB 2064’s funding provisions, two

members of the state legislature intervened to support the bill. Id. Intervenors then

moved to “purge” the district court’s contempt order in light of HB 2064 and, in the

alternative, for relief under Rule 60(b)(5) based on changed circumstances. Id. The

district court denied the Rule 60(b)(5) motion because HB 2064 “did not establish a

funding system that rationally relates funding available to the actual costs of all

elements of ELL instruction.” Id. at 444 (internal quotation marks omitted). The

33
Ninth Circuit affirmed, stating that “relief would be appropriate only if petitioners

had shown either that there are no longer incremental costs associated with ELL

programs in Arizona or that Arizona had altered its funding model.” Id. at 445

(internal quotation marks omitted).

The Supreme Court reversed. The Court first reiterated that a party may move

to modify or vacate an order under Rule 60(b)(5) if “‘a significant change either in

factual conditions or in law’ renders continued enforcement ‘detrimental to the public

interest.’” Id. at 447 (quoting Rufo, 502 U.S. at 384). “[O]nce a party carries this

burden, a court abuses its discretion when it refuses to modify an injunction or

consent decree in light of such changes.” Id. at 447–49 (internal quotation marks

omitted).

The Court then stressed that Rule 60(b)(5) serves an important function in

institutional reform litigation for three reasons. Id. First, injunctions and consent

decrees in such cases often remain in place for many years, “and the passage of time

frequently brings about changed circumstances” (e.g., “changes in the nature of the

underlying problem” and “new policy insights”) “that warrant reexamination of the

original judgment.” Id. at 448. Second, injunctions and decrees in reform cases tend

to “raise sensitive federalism concerns” because such cases often “involve[] areas of

core state responsibility.” Id. And those federalism concerns “are heightened when

. . . a federal court decree has the effect of dictating state or local budget priorities.”

Id.

34
 Recognizing that states have limited resources, the Court expressed sensitivity

toward the fact that “[w]hen a federal court orders that money be appropriated for

one program, the effect is often to take funds away from other important programs.”

Id. Third, seemingly endless injunctions and decrees in these types of cases

commonly “bind state and local officials to the policy preferences of their

predecessors and may thereby ‘improperly deprive future officials of their designated

legislative and executive powers.’” Id. at 449 (quoting Frew, 540 U.S. at 441).

Successor officials may bring new insights and solutions to ongoing “problems of

allocating revenues and resources,” but overbroad or outdated decrees may inhibit

their ability to respond to those problems and fulfill their duties as democratically-

elected officials. Id. In sum, a long-lasting and unmodified consent decree not only

raises serious federalism concerns but it may also restrain the opportunities for the

class protected by the decree because an overbroad and unyielding decree limits

financial resources available to governments for the implementation of new

innovations and policies that may serve the needs of the protected class better than

the requirements embodied in the decree.

For the foregoing reasons, courts must take a flexible approach to motions

under Rule 60(b)(5) where the moving party seeks relief from a long-lasting decree.

Id. at 450. This flexible approach “seeks to return control to state and local officials

as soon as a violation of federal law has been remedied.” Id. at 451. To that end,

courts must be wary “that ‘federal-court decrees exceed appropriate limits if they are

aimed at eliminating a condition that does not violate federal law or does not flow

35
from such a violation.’” Id. at 450 (quoting Milliken, 433 U.S. at 282). “‘If a federal

consent decree is not limited to reasonable and necessary implementations of federal

law,’ it may ‘improperly deprive future officials of their designated legislative and

executive powers.’” Id. (quoting Frew, 540 U.S. at 441).

Accordingly, “a critical question in [the] Rule 60(b)(5) inquiry is whether the

objective of the [challenged decree] has been achieved.” Id. (citing Frew, 540 U.S. at

442). “If a durable remedy has been implemented, continued enforcement of the

order is not only unnecessary, but improper.” Id. (citing Milliken, 433 U.S. at 282).

Applying these standards, the Court in Horne concluded that the Ninth Circuit

erred in two ways. First, instead of applying a flexible approach, the Ninth Circuit

“used a heightened standard that paid insufficient attention to federalism concerns.”

Id. at 451. Based on the federalism concerns, application of a flexible approach was

“critical.” Id. at 452. The Court instructed that application of the flexible approach

requires that “‘[w]hen the objects of the decree have been attained’—namely, when

[compliance with federal law] has been achieved—‘responsibility for discharging the

State’s obligations must be returned to the State and its officials.’” Id. (quoting Frew,

540 U.S. at 442).

Second, the Court held that instead of “inquiring broadly into whether changed

conditions in [the schools] provided evidence of an ELL program that complied with

the EEOA,” id. at 451, the Ninth Circuit performed an inquiry that was “too narrow,”

“focus[ing] almost exclusively on the sufficiency of incremental funding,” id. at 452.

But the narrow inquiry—focusing on whether a prior judgment has been satisfied—

36
addresses only one of the bases for relief under Rule 60(b)(5) and fails to consider

whether relief is warranted because “applying [a judgment] prospectively is no longer

equitable.” Id. at 454. For purposes of the equity basis for modification, the Ninth

Circuit’s narrow inquiry also overlooked the possibility that specific items in an

initial decree may, with the passage of time and changing circumstances, no longer

be the only way, or even the best way, to attain the objects of the decree and assure

compliance with federal law. See id. at 447–48, 451–54.

To determine whether relief was proper under the equity basis for

modification, the Ninth Circuit “needed to ascertain whether ongoing enforcement of

the original order was supported by an ongoing violation of federal law.” Id. at 454

(citing Milliken, 433 U.S. at 282); see also id. at 468 (repeating that a proper Rule

60(b)(5) inquiry should ask whether the school district “is now providing equal

educational opportunities to ELL students”).

The Court explained that while the Ninth Circuit focused on ELL incremental

funding, “funding is simply a means [of complying with the EEOA], not the end

(here, the EEOA).” Id. at 454–55. By requiring the state “to demonstrate ‘appropriate

action’ [mandated by the EEOA] through a particular funding mechanism, the Court

of Appeals improperly substituted its own educational and budgetary policy

judgments for those of the state and local officials to whom such decisions are

properly entrusted.” Id. at 455. Stated otherwise, the Ninth Circuit should have

“consider[ed] the broader question whether, as a result of important changes during

37
the intervening years, the State was fulfilling its obligation under the EEOA by other

means.” Id. at 439.

The Court then remanded for the district court to make “up-to-date” findings

and to consider whether four changed circumstances advanced by the defendants

warranted releasing the state from the earlier judgment. See id. at 469–70.

d. Applicability of Horne & Tension between Horne and Rufo

As opposed to the present case that features a Rule 60(b)(5) motion seeking a

modification of a consent decree, Horne involved a Rule 60(b)(5) motion seeking a

modification of a court-issued injunction, as well as additional orders crafted by the

district court. See id. at 441. Lower courts have reached different conclusions

regarding the force of Horne in the context of a Rule 60(b)(5) motion seeking

modification of a consent decree. See Burt v. Cty. of Contra Costa, 2014 WL 253010,

at *18–19 (N.D. Cal. Jan. 22, 2014) (discussing opposing conclusions by district

courts that have analyzed extent of Horne’s applicability to consent decrees); see also

Evans v. Fenty, 701 F. Supp. 2d 126, 165–67, 170–71 (D.D.C. 2010) (questioning

applicability of Horne to modification of consent decree and relying primarily on

inquiry established in Rufo and Frew when evaluating propriety of enforcement

beyond minimum requirements of federal law). The Sixth Circuit, however, did not

express any hesitation regarding applying Horne to a Rule 60(b)(5) motion seeking

modification of a consent decree. See John B., 710 F.3d at 411–14. In fact, the Sixth

Circuit, in John B., concluded that where a defendant subject to a consent decree in

institutional reform litigation has implemented a durable remedy to cure the federal

38
violation underlying the decree, Horne’s admonition that continued enforcement of

the decree is “improper” controls and requires vacatur of the consent decree. Id. at

411–13.

Three considerations compel us to join the Sixth Circuit’s apparent conclusion

that Horne fully applies to a Rule 60(b)(5) motion seeking modification of a consent

decree. First, while the parties may form the essential terms of a consent decree, as

we noted earlier when discussing our jurisdiction over this appeal, a district court’s

order approving the consent decree is tantamount to a final judgment on the merits.

See supra 22 (citing Johnson, 393 F.3d 1096, 1101 (10th Cir. 2004)).

Second, when discussing the proper inquiries for evaluating a Rule 60(b)(5)

motion in institutional reform litigation, Horne uses “consent decree” or “decree”

interchangeably with injunction and court order even though Horne involved

requested modifications to an injunction and several court orders but did not involve

a consent decree. See Horne, 557 U.S. at 448–50. From this, we glean that the Court

considers a consent decree and an injunctive order equivalent for purposes of

evaluating a Rule 60(b)(5) motion for modification. And had the Court intended to

limit Horne to institutional reform litigation involving only injunctions and court

crafted orders, it could have easily done so explicitly. The Court, however, did not so

limit its holding, and the plain language of Horne supports the conclusion that the

decision applies with equal force to all institutional reform cases, including those

cases featuring consent decrees.

39
 Third, the same federalism concerns at the heart of Horne are present in

institutional reform cases featuring consent decrees. Admittedly, the acquiescence of

state or local governmental officials to the terms of a consent decree might diminish

federalism concerns at the inception of the decree. But where, as here, a consent

decree remains in effect for decades, enforcement of the decree necessarily interjects

a federal court into local affairs and binds local governmental officials who were not

parties to the consent decree. The federal court, thereby, effectively limits the

democratic process by restricting the array of resources available to the governmental

officials for the enactment of other policies.

Applying Horne to Rule 60(b)(5) motions for modifications to consent decrees

does not come without complication. Notably, an apparent tension exists between

Horne and Rufo with respect to the appropriate course of action where a party

seeking modification has brought itself into compliance with federal law but has not

substantially complied with the specific terms of the consent decree or court order.

Compare Horne, 557 U.S. at 450 (“If a durable remedy [addressing the federal law

violation] has been implemented, continued enforcement of the order is not only

unnecessary, but improper.”), with Rufo, 502 U.S. at 391 (“A proposed modification

should not strive to rewrite a consent decree so that it conforms to the constitutional

floor.”).

To the extent Rufo and Horne differ as to the appropriate course of action

when a party seeks a Rule 60(b)(5) modification to an order in an institutional reform

case, two considerations cause us to follow the course outlined in Horne when the

40
significant change advanced as the basis for Rule 60(b)(5) modification is the

defendant’s alleged ongoing compliance with federal law. First, Rufo involved a

proposed modification to a plan that, if faithfully implemented over time, would

eventually cure the federal law violation. See id. at 376 (describing requested

modification at issue as allowing for some double bunking in new facility yet to be

completed or opened). As such, unlike in Horne where the defendants alleged that

they had remedied the federal law violation, the defendants in Rufo had not yet

remedied the issues with overcrowding and neglect in maintaining the jail that gave

rise to the litigation. And, where the Rufo defendants had not remedied the issues

giving rise to the litigation, it naturally follows that the Rufo defendants, unlike the

Horne defendants, were not in a position to establish the implementation of a durable

remedy. Further, nothing in Rufo suggests that the proposed modification would

equate with, or for that matter exceed, the constitutional floor. Thus, while Rufo is

undoubtedly informative on many issues surrounding the Rule 60(b)(5) standard for

modifying a consent decree, its statement about not striving to modify a consent

decree to the constitutional floor is not germane to its decision.

Second, Horne represents the Court’s most recent proclamation regarding the

standard for obtaining a modification to an order in institutional reform litigation.

And, as noted by scholars, Horne is the latest ruling in a trend of decisions that lower

the threshold for defendants to obtain a modification to, or the dissolution of, orders

in long-lasting institutional reform cases. Jason Parkin, Aging Injunctions & the

Legacy of Institutional Reform Litigation, 70 Vand. L. Rev. 167, 193–94 & n.136

41
(2017) (citing Catherine Y. Kim, Changed Circumstances: The Federal Rules of Civil

Procedure and the Future of Institutional Reform Litigation After Horne v. Flores, 46

U.C. Davis L. Rev. 1435, 1466 (2013), and Mark Kelley, Note, Saving 60(b)(5): The

Future of Institutional Reform Litigation, 125 Yale L.J. 272, 307 (2015)).

As we read Horne, if a party seeking modification to a consent decree

demonstrates a significant change in circumstances, the district court must take a

flexible approach and consider whether the moving party has implemented a durable

remedy to cure the federal law violation underlying the institutional reform litigation.

See John B., 710 F.3d at 412 (“In applying this flexible approach, we must answer

two questions: first whether the state has achieved compliance with the federal-law

provisions whose violation the decree sought to remedy; and second, whether the

State would continue that compliance in the absence of continued judicial

supervision.”); see also Petties ex rel. Martin v. District of Columbia, 662 F.3d 564,

569, 571 (D.C. Cir. 2011) (applying Horne’s statement that district court “ought to

have ‘applied a flexible standard that seeks to return control to state and local

officials as soon as a violation of federal law has been remedied’” to context of

requested modification to preliminary injunction (quoting Horne, 557 U.S. at 450–

51)). The district court, by way of its role in overseeing the institutional reform

litigation for many years, is in the best position to evaluate both whether a party has

complied with federal law and, if so, whether the party is committed to ongoing

compliance with federal law in the absence of oversight by the federal court. See

Petties, 662 F.3d at 571 (recognizing that district court’s management of litigation

42
“for many years” places district court in position to assess likelihood of compliance

with federal law absent oversight). Likewise, the district court is also in the best

position to assess whether the litigation has taken on a life of its own and now

advances a purpose removed from remedying the initial violation(s) or whether

continued oversight remains necessary to ensure compliance with federal law.

Finally, we note that when applying the flexible approach and evaluating

whether a moving party implemented a durable remedy, a district court must consider

the totality of the moving party’s efforts to demonstrate sustained compliance with

federal law. In this respect, there is not a single path, such as the adoption of new

legislation, by which a party can demonstrate the implementation of a durable

remedy. See id., 662 F.3d at 569–71 (remanding for determination of whether

adoption of new internal policies, coupled with improved record of compliance with

federal law, satisfied durable remedy requirement). Several of the desegregation

cases, although arguably not directly on point, highlight the broad inquiry a district

court must undertake when determining a party’s commitment to abiding by federal

law. Specifically, factors that a district court may consider include the party’s

commitment to compliance, the duration of the party’s compliance with federal law,

and whether or not the effects of the violation of federal law persist. See Freeman v.

Pitts, 503 U.S. 467, 490 (1992) (holding that the district court may relinquish

desegregation control in incremental stages, and stating that: “one of the prerequisites

to relinquishment of control in whole or in part is that a school district has

demonstrated its commitment to a course of action that gives full respect to the equal

43
protection guarantees of the Constitution”); id. at 491 (listing relevant factors in

determining whether partial withdrawal of federal desegregation oversight is

appropriate as including whether the school district has demonstrated “its good-faith

commitment to the whole of the court’s decree and to those provisions of the law and

the Constitution that were the predicate for the judicial intervention in the first

instance”); Bd. of Educ. of Oklahoma City Pub. Sch. v, Dowell, 498 U.S. 237, 249–50

(1991) (stating that “[t]he district court should address itself to whether the Board

had complied in good faith with the desegregation decree since it was entered, and

whether the vestiges of past discrimination had been eliminated to the extent

practicable” while also considering the lengthy period of time during which the

Board complied with the federal court’s oversight).

e. Summary

From the foregoing discussion of Rufo, Horne, and other institutional reform

litigation cases, several principles emerge that are critical to our analysis of whether

Defendants are entitled to relief under Rule 60(b)(5).

First, a motion for relief from a consent decree based on an assertion that

“applying it prospectively is no longer equitable” demands a different focus than a

motion based on an assertion that “the judgment has been satisfied, released or

discharged.” See Fed. R. Civ. P. 60(b)(5); Horne, 557 U.S. at 454. With respect to the

latter ground for relief, it is appropriate for a court to focus on whether the movant

has satisfied each obligation set forth in the consent decree. But where, as here, the

movant contends that changed circumstances have rendered further enforcement of

44
the consent decree no longer equitable, the inquiry is whether the movant has shown

(a) that a significant change in factual circumstances or in law warrants revision of

the decree, and (b) that the requested modification is suitably tailored to the changed

circumstance. Rufo, 502 U.S. at 383–84, 391. A movant may establish that changed

factual circumstances warrant modification when (i) the changed circumstances

“make compliance with the decree substantially more onerous,” (ii) a “decree proves

to be unworkable because of unforeseen obstacles,” or (iii) “enforcement of the

decree without modification would be detrimental to the public interest.” Id. at 384.

It is an abuse of discretion for a district court to deny a motion for modification

where the moving party meets this burden. Horne, 557 U.S. at 447.

Second, a flexible approach to evaluating the equities of such a motion is

crucial where, as in this case, institutional reform is sought. Horne, 557 U.S. at 450;

Rufo, 502 U.S. at 380–81. Consent decrees in reform cases often remain in effect for

extended periods, thereby increasing the prospect that a significant change in factual

circumstances will occur. Horne, 557 U.S. at 447–48; Rufo, 502 U.S. at 380. Consent

decrees also tend to restrict state and local officials’ ability to implement new ideas

to old problems. Horne, 557 U.S. at 449; Rufo, 502 U.S. at 381. And they raise

sensitive federalism concerns that are heightened when a decree effectively dictates

state or local budget priorities. Horne, 557 U.S. at 448.

Third, when a party seeks termination or vacatur of a consent decree based on

the inequity of continued oversight, a court must determine not only whether changed

circumstances exist, but also whether the “objective” of the decree—that is, whether

45
compliance with federal law—has been attained. See id. at 450 (noting that “a critical

question in [the] Rule 60(b)(5) inquiry is whether the objective of the District Court’s

[initial] order—i.e., satisfaction of the EEOA’s ‘appropriate action’ standard—has

been achieved” (emphasis added) (citing Frew, 540 U.S. at 442)); id. at 454

(concluding that the Ninth Circuit “needed to ascertain whether ongoing enforcement

of the original order was supported by an ongoing violation of federal law” (emphasis

added) (citing Milliken, 433 U.S. at 282)); id. at 468 (reiterating that the Ninth

Circuit should have asked whether the school district was meeting the EEOA’s

“appropriate action” requirement); see also Milliken, 433 U.S. at 282 (explaining that

a decree must be “tailored to cure the condition that offends” federal law and seek to

restore victims of unlawful conduct to the position they would have occupied absent

the unlawful conduct (internal quotation marks omitted)); John B., 710 F.3d at 411

(stating that a court considering a Rule 60(b)(5) motion “must determine whether

‘ongoing enforcement of the original order [is] supported by an ongoing violation of

federal law’” (alteration in original) (emphasis added) (quoting Horne, 557 U.S. at

454)); Washington, 573 F.3d at 710 (interpreting Horne and Rufo as requiring a court

to “consider whether the purpose of the decree” has been achieved). So where the

basis of the Rule 60(b)(5) motion is that continued enforcement of the decree is no

longer equitable, instead of inquiring narrowly whether the specific obligations of a

consent decree have been attained, the court must broadly inquire whether the party

obligated by the decree is at that time in compliance with federal law. Horne, 557

U.S. at 451–52; see also id. at 439 (stating that the lower courts needed to ask the

46
broader question whether the state “was fulfilling its obligation under the EEOA by

other means”). And once compliance with federal law has been attained, a court must

return control over the program to the state and its officials, provided a durable

remedy is in place. See id. at 452 (“‘When the objects of the decree have been

attained’—namely, when EEOA compliance has been achieved—‘responsibility for

discharging the State’s obligations [must be] returned promptly to the State and its

officials.’” (alteration in original) (quoting Frew, 540 U.S. at 442)); see also Frew,

540 U.S. at 442 (“The federal court must exercise its equitable powers to ensure that

when the objects of the decree have been attained, responsibility for discharging the

State’s obligations is returned promptly to the State and its officials.” (emphasis

added)); Washington, 573 F.3d at 709 (“The Constitution does not establish the

district courts as permanent administrative agencies.”).

Last, the existence of a durable remedy may warrant disengagement of judicial

oversight. The Horne Court’s single reference to a durable remedy states:

[A] critical question in this Rule 60(b)(5) inquiry is whether the
objective of the District Court’s [initial] order—i.e., satisfaction of the
EEOA’s “appropriate action” standard—has been achieved. See [Frew,]
540 U.S. at 442. If a durable remedy has been implemented, continued
enforcement of the order is not only unnecessary, but improper. See
Milliken, [433 U.S.] at 282.

Horne, 557 U.S. at 450. From the latter sentence, it is fair to conclude that if a

durable remedy is in place, then the movant has attained the more-general objects of

the decree—i.e., compliance with federal law. We interpret the Court’s reference to a

“durable remedy” as recognition that fleeting federal compliance is insufficient to

47
warrant relief. Thus, a district court, in assessing whether further oversight is

equitable, may and should consider the totality of defendants’ efforts to comply with

federal law and defendants’ commitment to remaining in compliance with federal

law. Such is the approach adopted by two of our sister circuits subsequent to Horne.

See supra 41-43 (discussing application of Horne’s durable remedy language in John

B., 710 F.3d 391 and Petties, 662 F.3d 564).

And like our sister circuits, we do not read the language in Horne too

restrictively with respect to what may constitute a durable remedy. The Court has

admonished against taking language from its opinions out of context and giving it

“talismanic quality.” Rufo, 502 U.S. at 380. Recall that, in Rufo, the district court

denied modification of the consent decree because the state defendants had failed to

meet the “clear showing of grievous wrong” evoked by the Court in United States v.

Swift & Co., 286 U.S. 106 (1932). Rufo, 502 U.S. at 377. The Court acknowledged

that the “grievous wrong” language used in Swift, if “[r]ead out of context,”

“suggests a ‘hardening’ of the traditional flexible standard for modification of

consent decrees.” Id. at 379. It explained, however, that such a reading would be

inconsistent with Rule 60(b)(5): “That Rule, in providing that, on such terms as are

just, a party may be relieved from a final judgment or decree where it is no longer

equitable that the judgment have prospective application, permits a less stringent,

more flexible standard.” Id. at 380. A similarly cautious reading of the “durable

remedy” language in Horne is appropriate here.

48
 When a Rule 60(b)(5) movant has established both the absence of an ongoing

violation of federal law and a future commitment to remain in compliance with

federal law, federalism concerns should inform a court’s flexible determination as to

how a consent decree will be modified. Rule 60(b)(5) dictates as much. See Rufo, 502

U.S. at 380. Accordingly, there is no one way for a movant to show that its federal

compliance is more than fleeting. For example, a movant may establish its

commitment to future compliance through the adoption of a durable remedy—such as

a statute designed to cure the specific federal violation. See Horne, 557 U.S. at 450.

A movant may also establish its commitment to future compliance through a record

of sustained good-faith efforts to remedy federal violations and, to the extent

possible, eliminate the vestiges of the federal violation. See Freeman, 503 U.S. at

490, 498; Dowell, 498 U.S. at 248–49. Ultimately, the district court’s wealth of

experience overseeing the litigation should inform its assessment of whether the

Defendants are now in compliance with federal law, and whether they are committed

to remaining in compliance.6

In summation, if Defendants here can show they are no longer violating the

class members’ federal rights, and the district court has reason to believe Defendants’

compliance with federal law is durable, then “continued enforcement of the District

Court’s original order[s] is inequitable within the meaning of Rule 60(b)(5), and

relief is warranted.” Horne, 557 U.S. at 470; see also John B., 710 F.3d at 413;

6
Here, the district court has been involved with this case for three decades. It
has personal knowledge of the efforts by the Defendants to meet their obligations and
the complexity involved in setting compliance measures.
49
Petties, 662 F.3d at 570-71. To require more under those circumstances would raise

serious federalism concerns. It also would conflict with the Supreme Court’s

admonition that a federal consent decree should do no more than remedy a condition

that violates federal law. Milliken, 433 U.S. at 282. Once the offending condition has

been cured, the Court has instructed that responsibility over the state program must

be returned promptly to the state and its officials. Frew, 540 U.S. at 442; see also

Horne, 557 U.S. at 450–51 (stating the flexible standard under Rule 60(b)(5) “seeks

to return control to state and local officials as soon as a violation of federal law has

been remedied”). And in weighing the equities, the district court should avoid

imposing an inflexible standard that risks depriving future officials of their

legislative and executive powers. See Horne, 557 U.S. at 449. After all, such

inflexibility is unnecessary to protect the federal interests at the heart of the

institutional reform litigation. If the state again violates federal law, victims may file

a new lawsuit to bring the state back into compliance. Elected officials may also be

held accountable to the citizenry through the political process. For all of these

reasons, we conclude that Defendants may satisfy the durability required by Horne in

a number of ways, including: by taking specific, long-term actions aimed at curing

the federal violations, by making good faith efforts to obtain compliance, or by

operating in conformity with federal law for a reasonable period of time.

3. Application

Since this case’s inception, the district court has expended considerable effort

and displayed exceptional skill resolving the numerous issues that have arisen.

50
Despite this fine stewardship, two aspects of the ruling on Defendants’ Rule 60(b)(5)

motion require us to vacate the June 2016 order and to remand for further

proceedings in the district court.

First, the district court’s determination that there are no changed circumstances

appears to be inconsistent with its factual findings. Defendants maintain that changed

factual circumstances warrant relief, including that (a) their obligations have

increased in number and complexity to the point the obligations have become

substantially onerous, (b) they remedied the constitutional violations giving rise to

this litigation and are in compliance with federal law, and (c) increased costs to

litigate this case and to provide services to class members have inhibited the State’s

ability to fund other important programs such that continued enforcement of the

decree is contrary to the public interest.

Although the district court concluded that Defendants “have not presented

sufficient changed circumstances . . . to warrant the requested relief,” Jackson III,

2016 WL 9777237, at *17, the court seemingly endorsed Defendants’ argument that

their “task ha[d] become incomprehensible, if not insurmountable,” and recognized

that their outstanding obligations “are onerous,” id. at *14.7 The court also

7
Defendants may have anticipated at the time they entered into the pertinent
decrees that the number and complexity of obligations would substantially increase.
After all, their obligations did not become onerous as a result of changed factual
circumstances occurring after they entered into the decrees—it was the act of
entering into the decrees itself that multiplied their obligations. On remand, if the
district court finds that Defendants anticipated that their obligations would
substantially increase in number and complexity, Defendants would have to “satisfy a
heavy burden to convince [the] court that [they] agreed to the decree[s] in good faith,
51
acknowledged that the “increasing fees and costs associated with this litigation are

detrimental to the State’s interest,” that “more than 25 years of orders and

stipulations have restricted the State’s ability to make basic decisions concerning its

budget,” and that “it is doubtful that the outlay of over 5 million dollars of attorney’s

fees and costs every year is directly assisting” class members. Id. at *16. Indeed, the

district court noted that Defendants have spent more than $50 million related to this

litigation in the last decade, id. at *12, and that, as of 2009, the average yearly costs

to provide services to class members had risen from $67,290.00 to $135,535.000 per

class member, while the State’s $32,992.00 per capita income was the ninth lowest in

the nation, id. at *13.

Despite accepting these facts advanced by Defendants, the district court

concluded, without adequate explanation, that the facts did not amount to a

significant change in circumstances. But the district court’s conclusion that the

obligations on the Defendants are “onerous” suggests Defendants established a

significant change in circumstances under Rufo’s first two prongs for showing a

change in facts warranting modification—that “changed factual conditions make

compliance with the decree substantially more onerous” and that “a decree proves to

be unworkable because of unforeseen obstacles.” See Rufo, 502 U.S. at 384.

Similarly, the district court’s findings concerning the increased fees and costs, and

how they have restricted the State’s ability to make decisions about its budget,

made a reasonable effort to comply with the decree[s], and should be relieved of the
undertaking under Rule 60(b).” Rufo, 502 U.S. at 385.
52
suggest that continued enforcement of the decrees is detrimental to the public

interest. See Horne, 557 U.S. at 447 (explaining that Rule 60(b)(5) “provides a means

by which a party can ask a court to . . . vacate a judgment or order if a significant

change either in factual conditions or in law renders continued enforcement

detrimental to the public interest” (internal quotation marks omitted)); id. at 448 (“A

structural reform decree eviscerates a State’s discretionary authority over its own

program and budgets and forces state officials to reallocate state resources and

funds[.]” (quoting Missouri v. Jenkins, 515 U.S. 70, 131 (1995) (Thomas, J.,

concurring))); id. at 454 (recognizing that a decree is detrimental to the public

interest when it risks “improperly interfer[ing] with a State’s democratic process”);

id. at 459 (concluding that the district court’s imposition of heavy fines on the state

“unquestionably imposed important restrictions on the legislature’s ability to set

budget priorities”); Small v. Hunt, 98 F.3d 789, 796 (4th Cir. 1996) (stating in a Rule

60(b)(5) case that the public “has an interest in how its tax dollars are spent”). We

remand for further explanation of why these facts do not constitute a significant

change in circumstances.8

8
To be sure, the district court questioned the timing of the changes relative to
the Defendants’ pending, August 25, 2015, Rule 60(b)(5) motion. This explanation,
however, may not justify rejecting the conclusion that a significant change in
circumstances occurred where (1) Defendants filed a Rule 60(b)(5) motion in 2011
that the district court terminated without ruling on the merits of the motion and (2)
the district court made no reference to the requirement in Fed. R. Civ. P. 60(c)(1) that
a Rule 60(b) motion be “made within a reasonable time.” Of course, on remand, the
district court is free to perform a Rule 60(c)(1) timeliness analysis and conclude that,
even in light of the 2011 Rule 60(b)(5) motion, Defendants did not seek relief
“within a reasonable time” of the change in circumstances upon which they rely.
53
 Second, federalism concerns are heightened here because the decrees and the

court’s continued oversight have “the effect of dictating state . . . budget priorities.”

Horne, 557 U.S. at 448. Despite acknowledging the federalism concerns at play,

including the lengthy duration of federal oversight and the budgetary constraints

resulting from continued federal oversight, the district court did not apply the flexible

approach called for by Horne. Under the flexible approach, the district court needed

to inquire whether “the objects of the decree[s] have been attained.” Id. at 452

(internal quotation marks omitted). The court purported to engage in this analysis,

stating that the objects—or “essential purposes”—of the pertinent decrees “are to

provide class members with adequate health care, a reasonably safe environment, and

supported employment opportunities.” Jackson III, 2016 WL 9777237, at *14. The

court then noted that these “more specific” essential purposes are encompassed in the

obligations provided in the pertinent decrees. Id. And because Defendants conceded

they have not substantially complied with many of those decree obligations, the court

determined that Defendants “have not fulfilled the essential purposes of the pertinent

decrees.” Id.

Like the Ninth Circuit’s analysis in Horne, the district court’s analysis on this

point was too narrow, focusing almost entirely on whether defendants had fulfilled

the numerous, detailed obligations provided in the consent decrees. But because

Defendants move on the ground that continued enforcement of the consent decrees is

no longer equitable, the district court should have “ascertain[ed] whether ongoing

enforcement of the [decrees] was supported by an ongoing violation of federal law,”

54
see Horne, 557 U.S. at 454—here, whether Defendants are violating class members’

rights under the substantive due process component of the Fourteenth Amendment

and under the Rehabilitation Act. The court explicitly declined to make this

determination, stating it “is not in the position to assess, and, therefore, cannot

conclude that Defendants are no longer violating constitutional or federal law.”

Jackson III, 2016 WL 9777237, at *16. In declining to make this finding, the district

court failed to perform an inquiry that we, in accord with both the Sixth Circuit and

the D.C. Circuit, conclude that Horne requires. See Ohlander, 114 F.3d at 1537 (“A

clear example of an abuse of discretion exists where the trial court fails to consider

the applicable legal standard[.]”).9

The district court appears to have focused on whether Defendants substantially

complied with the decree obligations, as well as an overly narrow view of the objects

of the consent decree. Substantial compliance with all the obligations in the pertinent

decrees would likely place New Mexico in compliance with federal law. But the

obligations are merely a means of accomplishing that goal, not the end. See Horne,

557 U.S. at 454–55. On remand, the court should consider the broader question of

whether the State is meeting the requirements of the Fourteenth Amendment and the

Rehabilitation Act by means other than those stated in the consent decrees. See id. at

439. To be sure, the court concluded that “Defendants have not shown that they have

fulfilled their outstanding obligations, ‘by other means.’” Jackson III, 2016 WL

9
The burden of showing compliance with federal law is, of course, on the
Defendants.

55
9777237, at *17 (quoting Horne, 557 U.S. at 439). But the court seemingly focused

on whether Defendants have fulfilled their decree obligations by other means, instead

of focusing on the broader question of whether Defendants have fulfilled their

federal-law obligations to class members by means other than those provided in the

decrees.10 Such an inquiry is critical not only to determining whether Defendants are

in current compliance with federal law, but also to analyzing whether their

compliance is durable. In other words, an inquiry into whether Defendants are

currently in compliance with federal law is a necessary predicate to any inquiry into

whether that compliance is more than merely fleeting. Unless the court properly

focuses its inquiry on compliance with federal law, it cannot analyze whether any

remedy adopted by the state will be effective to maintain such compliance. In turn,

without analyzing whether Defendants are in compliance with federal law and, if so,

whether they are likely to maintain compliance with federal law absent continued

oversight, the district court was not in a proper analytical position to determine

whether Defendants’ proposed modification of terminating the consent decrees was

properly tailored to any significant change in circumstances. Thus, after first deciding

10
The district court also justified its ruling based on its finding that the
obligations set forth in the JSD, the Plan of Action, and Appendix A “all flowed from
[its] original findings of violations in 1990.” Jackson III, 2016 WL 9777237, at *15.
Accepting this finding as true, all it shows is those decrees do not exceed appropriate
limits of a federal-court decree. See Horne, 557 U.S. at 450 (stating that “federal-
court decrees exceed appropriate limits if they are aimed at eliminating a condition
that does not violate [federal law] or does not flow from such a violation” (quoting
Milliken v. Bradley, 433 U.S. 267, 282 (1977))). But even a decree that is within
appropriate bounds may be vacated where changed circumstances make prospective
enforcement of the decree no longer equitable and where the movant has attained
compliance with federal law.
56
whether New Mexico is now in compliance with federal law, the district court should

assess whether that compliance is durable, or whether the proposed modification is

not properly tailored to any change in circumstances because equity weighs in favor

of further federal oversight to assure the protection of the class members’ federal

rights.

In sum, due to the public interests and federalism concerns, continued

enforcement of the consent decrees is warranted only to the extent Defendants are in

current violation of federal law or have reached only fleeting compliance. We remand

so the district court can make up-to-date findings and determine whether Defendants

are currently violating class members’ rights under the Fourteenth Amendment and

the Rehabilitation Act. On remand, the district court should conduct the necessary

proceedings to develop a record that would allow it to make this determination. If the

court then concludes Defendants are not violating class members’ rights under

federal law, the court should assess the durability of that compliance. In the event

that Defendants have implemented a durable remedy, the court should next address

whether vacatur of all pertinent orders and termination of this case is appropriate.

III. CONCLUSION

We VACATE the district court’s June 2016 Order and REMAND so the court can

make appropriate findings and conclusions and then reassess the equities under Rule

60(b) with the benefit of those findings and conclusions.

57