Case: 16-40482      Document: 00513583172         Page: 1    Date Filed: 07/07/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                              United States Court of Appeals
                                                       Fifth Circuit

                                                                                   FILED
                                                                                 July 7, 2016
                                      No. 16-40482                              Lyle W. Cayce
                                                                                     Clerk

In re: GREG ABBOTT, in his official capacity as Governor of the State of
Texas; CHRIS TRAYLOR, in his official capacity as Executive Commissioner
of the Health and Human Services Commission of the State of Texas formerly
known as Kyle Janek; JOHN J. SPECIA, JR., in his official capacity as
Commissioner of the Department of Family and Protective Services of the
State of Texas,

               Petitioners.




                         On Petition for Writ of Mandamus
                         to the Southern District of Texas
                               USDC No. 2:11-CV-84


Before DENNIS, OWEN, and COSTA, Circuit Judges.
PER CURIAM:*
       Nine foster children in the care of Texas’s Permanent Managing
Conservatorship filed a class-action lawsuit on behalf of all children in such
care against the named defendants, seeking declaratory and injunctive relief
to redress alleged class-wide injuries caused by violations of their substantive
due process rights under the Fourteenth Amendment. The district court held
that those rights had been violated. It issued an injunction with immediate
effect and also appointed special masters pursuant to Federal Rule of Civil


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                        No. 16-40482
Procedure 53 “to help craft the reforms and oversee their implementation,”
explaining that “[b]ecause of the complexity and breadth of reforms that are
required . . . it would be impractical for the Court to craft and oversee each
necessary change.” The district court set forth a detailed list of the goals of the
reforms, which comprised both specific directives to the State and descriptions
of recommendations to be provided by the special masters. The district court
denied the State’s motion to revoke the appointment of the special masters and
declined to certify an order for interlocutory appeal pursuant to 28 U.S.C.
§ 1292(b). The Fifth Circuit subsequently denied the State’s motion to stay the
injunction pending appeal.            The State now files a petition for a writ of
mandamus directing the district court to vacate the appointment of the special
masters and instead craft appropriate injunctive relief itself.
      Federal Rule of Civil Procedure 53(a)(1)(C) permits a court to appoint a
master to “address pretrial and posttrial matters that cannot be effectively and
timely addressed by an available district judge or magistrate judge of the
district.” Rule 53(b)(2)(A) requires that the order appointing a master state
“the master’s duties, including any investigation or enforcement duties, and
any limits on the master's authority.” Rule 53(f)(3) provides that “[t]he court
must decide de novo all objections to findings of fact made or recommended by
a master,” unless the parties stipulate with the court’s approval that the
findings will be reviewed for clear error or will be final. Rule 53(f)(4) states
that “[t]he court must decide de novo all objections to conclusions of law made
or recommended by a master.”
      “[A]n aggrieved party may seek review of an order of reference by an
interlocutory appeal [pursuant to] 28 U.S.C. § 1292(b), or a writ of
mandamus.” 1         “[T]hree conditions must be satisfied before [a writ of


      1   Sierra Club v. Clifford, 

, 448 (5th Cir. 2001).
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                                       No. 16-40482
mandamus] may issue. First, ‘the party seeking issuance of the writ [must]
have no other adequate means to attain the relief he desires’—a condition
designed to ensure that the writ will not be used as a substitute for the regular
appeals process. Second, the petitioner must satisfy ‘the burden of showing
that [his] right to issuance of the writ is ‘clear and indisputable.’ Third, even
if the first two prerequisites have been met, the issuing court, in the exercise
of its discretion, must be satisfied that the writ is appropriate under the
circumstances.” 2
       The writ of mandamus as a means of preventing a district court from
appointing a special master “‘is meant to be used only in the exceptional case
where there is clear abuse of discretion or usurpation of judicial power’ and
‘should be resorted to only in extreme cases’ where the reference to a Master is
‘so palpably improper’ that ‘the rules have been practically nullified.’” 3


       Because the petitioners here have failed to demonstrate that they have
a “clear and indisputable” entitlement to relief at this stage of the proceedings,
IT IS ORDERED that the petition for writ of mandamus is DENIED.


       IT IS FURTHER ORDERED that petitioners’ motion to stay any special-
master proceedings arising from the Appointment Order pending the
disposition of the petition is DENIED AS MOOT.




       2  Cheney v. U.S. Dist. Court, 

, 380-81 (2004) (third and fourth alterations
in original) (citations omitted).
        3 In re Watkins, 

, 773 (5th Cir. 1959) (quoting La Buy v. Howes Leather

Co., 352 U .S. 249, 256-258 (1956)).
                                              3