Case: 15-31119   Document: 00514085584     Page: 1   Date Filed: 07/24/2017




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

                                                                           FILED
                                                                        July 24, 2017
                                 No. 15-31119
                                                                        Lyle W. Cayce
                                                                             Clerk
M. C. MOORE, as father and next friend to minors Joyce Marie Moore, Jerry
Moore, and Thelma Louise Moore; HENRY SMITH, as father and next friend
to minors Bennie Smith, Charles Edward Smith, Shirley Ann Smith, and
Earline Smith,

             Plaintiffs - Appellees

v.

TANGIPAHOA PARISH SCHOOL BOARD, a corporation,

             Defendant - Appellant




                Appeals from the United States District Court
                    for the Eastern District of Louisiana


Before JOLLY, BARKSDALE, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      In 1965, Plaintiffs sued Tangipahoa Parish School Board, seeking
desegregation of the school district.       Since then, numerous remedial
injunctions have been issued in pursuit of the ultimate goal: full unitary status
and dismissal of the case. In 2008, the district court granted the parties’ joint
motion to create the position of Chief Desegregation Implementation Officer.
The terms of the injunction do not require the district court to approve the
School Board’s candidate for the job.        Nevertheless, the School Board
previously submitted some candidates for consideration. The district court
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rejected the School Board’s latest proposed candidate, approving instead the
candidate supported by Plaintiffs and the Court Compliance Officer. The
School Board appealed the district court’s original order and the denial of the
Rule 60(b) motion for relief from judgment. We AFFIRM.


               FACTUAL AND PROCEDURAL BACKGROUND
      Plaintiffs sued Tangipahoa Parish School Board in 1965, claiming equal-
protection violations under 42 U.S.C. § 1983 that stemmed from systematic
segregation. The district court first issued an injunction in 1967 but has since
issued several remedial injunctions with the goal of achieving the school
district’s full unitary status.
      In 2008, the parties jointly moved the district court to create the position
of Chief Desegregation Implementation Officer (“CDIO”). According to the
School Board, the purpose of the position is “to further the ability of the Board
to efficiently and proactively meet its desegregation obligations.” The CDIO is
thus responsible for “coordinat[ing] and oversee[ing] all aspects of the
implementation of the court’s orders[.]” The CDIO reports directly to the
school superintendent and the Court Compliance Officer (“CCO”), who works
independently of the school district to ensure compliance with the court’s
orders and to coordinate and monitor the parties’ actions. The CDIO position
is not intended to detract from the CCO’s responsibilities. Instead, the CDIO
works beneath the CCO to “make ongoing reports and provide all information
as requested[.]” According to the original injunction, a candidate must possess
a master’s or doctorate degree with emphasis on organizational leadership to
be considered for the CDIO position.        The CDIO serves a term of twelve
consecutive months as a “full-time, year round” employee.
      The parties attached a list of the CDIO’s duties and responsibilities to
their joint motion. It provides the CDIO is intended to supervise “[p]ersonnel
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below the level of Superintendent and Assistant Superintendent involved in
implementation     of   [the]   Consent       Judgment.”     The   CDIO’s     listed
responsibilities are numerous and include coordinating academic transfers,
community-involvement programs, and drop-out-prevention programs.
      No court order defines the CDIO selection-and-approval process. Nor
does any court order require the district court to approve the School Board’s
recommended candidate for CDIO. Nevertheless, the School Board has sought
approval for some prior appointees.
      In July 2015, then-CDIO Lionel Jackson announced his intention to
remain on sick leave until his retirement in December 2015. For two months,
the School Board assigned the CDIO’s duties to appropriate staff members
while searching for a new CDIO. In his annual report filed with the district
court, the CCO recommended Andrew Jackson for the CDIO position. Jackson
is a local minister who holds a bachelor’s degree in criminal justice and
formerly served as principal of a local residential facility for juvenile
delinquents. The School Board considered Jackson, but it ultimately named
Lawrence Thompson as acting CDIO. Thompson holds a master’s degree, has
served as a principal in the district, and had served as the district’s Chief
Welfare and Attendance Officer until he retired in 2010.
      In August 2015, the School Board filed two motions in the district court,
seeking (1) approval of Thompson as CDIO, and (2) elimination of the CDIO
position, or, alternatively, revision of the CDIO job description. Plaintiffs
opposed Thompson’s appointment, asserting that Jackson would be a better
choice because he is an unbiased outsider who “has the backing of the Black
community” and the CCO. The district court denied the opposed motions and
appointed Jackson. The School Board timely noticed its interlocutory appeal.
      After the original appeal was docketed, the School Board filed a motion
for indicative ruling in the district court under Federal Rule of Civil Procedure
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62.1, arguing the court should reconsider its decision because Jackson has
various conflicts of interest that render him unsuitable to serve as CDIO.
Among other things, the School Board discovered that Jackson was once
married to the daughter of a named Plaintiff and had a child with her before
their divorce in 1975.      The Plaintiffs opposed the motion on procedural
grounds.      The district court granted the motion, holding that the new
allegations regarding Jackson’s familial ties to the Plaintiffs merited
reconsideration of the order appointing Jackson as CDIO. Under Federal Rule
of Appellate Procedure 12.1(a), this court was given notice of the district court’s
order.
         Responding to that notice, we remanded the case “for the limited purpose
of allowing the district court to rule on the matter identified in its indicative
order.” We also instructed the district court to “make additional findings to
explain its appointment of Mr. Jackson instead of Mr. Thompson.” On remand,
the district court styled its order as responding to a Rule 60(b) motion for relief
from judgment. It held that none of the alleged conflicts of interest were
sufficient to justify overturning its prior order appointing Jackson as CDIO. It
further justified its selection of Jackson by noting his work experience,
community involvement, and personal reputation. The School Board then
amended its notice of appeal to encompass both the original order appointing
Jackson and the district court’s order on the Rule 60(b) motion.


                                  DISCUSSION
         The School Board originally appealed the district court’s appointment
order, which we review for an abuse of discretion because it was a modification
of an injunction. See Moses v. Washington Par. Sch. Bd., 

, 327
(5th Cir. 2004). The School Board also appeals the district court’s denial of a
Rule 60(b) motion for relief from judgment. We review such denials for an
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abuse of discretion also. Diaz v. Stephens, 

, 374 (5th Cir. 2013).
It is not enough that granting the motion may have been permissible; instead,
denial of relief “must have been so unwarranted as to constitute an abuse of
discretion.” 

district court’s ruling is entitled to deference,”
questions of law underlying its decision are reviewed de novo. Frew v. Janek,

, 719 (5th Cir. 2016).
       We address the contentions in two parts. First, we discuss the original
appeal concerning the district court’s modification of the injunction through
the appointment of Jackson as CDIO. Second, we address the district court’s
denial of the Rule 60(b) motion for relief from judgment.
       As a threshold matter, we note the Plaintiffs as appellees failed to file an
initial appellate brief or a letter brief in response to the district court’s
supplemental order. Under Federal Rule of Appellate Procedure 31, “[t]he
appellee must serve and file a brief within 30 days after the appellant’s brief
is served.” Subsection (c) provides that any “appellee who fails to file a brief
will not be heard at oral argument unless the court grants permission[.]” We
agree with a nonprecedential opinion that the rule nonetheless permits
affirmance when appellees fail to file a brief. See SPSL Opobo Liberia, Inc. v.
Marine Worldwide Servs., Inc., 454 F. App’x 303, 305 (5th Cir. 2011).


 I.    Modification of the Injunction
       The School Board initially brought an interlocutory appeal from what it
claims was a modification of an injunction. If the order merely interpreted the
injunction, we have no jurisdiction. In re Seabulk Offshore, Ltd., 

,
899 (5th Cir. 1998). There is jurisdiction, though, when the district court
modifies an existing injunction. See 28 U.S.C. § 1292(a)(1).
       To decide the nature of this order, “[w]e look beyond the terms used by
the parties and the district court to the substance of the action.” Seabulk, 158
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F.3d at 899.    A district court interprets an injunction by enforcing the
injunction according to its terms or establishing “procedures for enforcement
without changing the command of the injunction.” In re Deepwater Horizon,

, 491 (5th Cir. 2015). Modification, on the other hand, requires
that the injunction be altered by the court in some way. 

court explicitly denied the School Board’s motion to modify
the CDIO’s job description. The substance of the action was a modification, as
it appointed a candidate who was not qualified under the injunction. The
injunction required the CDIO to possess a master’s or doctorate degree.
Jackson only possessed a bachelor’s degree. Further, the district court rejected
the School Board’s recommended appointee in favor of another candidate even
though the original order creating the CDIO position is silent about the court’s
role in the selection and approval of the person. Thus, the district court’s
actions were modifications of the terms of the injunction. That means we have
jurisdiction. See 

.
      In its original appeal, the School Board argued that the district court
abused its discretion by (1) modifying the academic qualifications for the CDIO;
(2) modifying the selection-and-approval procedure for the CDIO; and (3)
relying on the Plaintiffs’ and the CCO’s recommendation in appointing Jackson
as CDIO. The third argument collapses into the first two because it merely
supports the contentions about how the district court abused its discretion in
departing from the terms of the injunction. Academic qualifications and the
process for selection and approval are thus our focus.
      Federal courts have broad equitable powers to fashion remedial
measures designed to eliminate school segregation. Milliken v. Bradley, 

, 279–80 (1977). The district court may “adjust remedies in a feasible
and practical way to eliminate the conditions or redress the injuries caused by
unlawful action.” Freeman v. Pitts, 

, 487 (1992). If injunctive
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relief is “to be enforced with fairness and precision,” it must be flexible. 

judicial discretion may call for the modification of the
terms of an injunctive decree if the circumstances, whether of law or fact,
obtaining at the time of its issuance have changed, or new ones have since
arisen.” Pasadena City Bd. of Educ. v. Spangler, 

, 437 (1976). A
school district, though, is “entitled to a rather precise statement of its
obligations under a desegregation decree.” Board of Educ. of Oklahoma City
Pub. Schs. v. Dowell, 

, 246 (1991).
      We look first at the modification of the CDIO’s academic qualifications.
The terms of the injunction, proposed by joint motion of the parties in 2008,
required a CDIO candidate to possess a master’s or doctorate degree with
emphasis on organizational leadership. All of the previous CDIOs satisfied the
academic-qualifications requirement. Similarly, the School Board’s candidate,
Lawrence Thompson, holds a master’s degree and is a former educator and
administrator in the district. These qualifications are necessary, the School
Board asserts, because “the CDIO is required to perform a broad spectrum of
duties involving multiple academic disciplines and institutional procedures,
the knowledge of which is particularly acquired via the requisite academic
degree as well as lengthy educational experience.” In contrast, Jackson “holds
no [degree] in education or in educational administration.”
      The district court rejected the academically qualified candidate in favor
of Jackson. On remand, following its grant of the School Board’s motion for
indicative ruling, the district court offered additional explanation for its
decision. First, Jackson was the preferred candidate of the Plaintiffs and the
CCO, while Thompson “did not have the support of the African American
community.” Second, Jackson was not a former school-system employee, which
brings “a level of independence and impartiality” to the CDIO position that
might better serve the school district’s ultimate purpose. Jackson is also a
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leader in a local church and a well-respected member of the community.
Finally, he proved his administrative ability during “sixteen years managing
an organization dedicated to helping at-risk youth.” This summary seems to
mean the district court found Jackson to be more qualified than Thompson
even without the requisite degree.
      There are several principles pertinent to our analysis. First, consent
decrees are contractual in nature, so parties may fairly expect such orders to
be enforced as both a contract and a judicial decree. Frew ex rel. Frew v.
Hawkins, 

, 437 (2004). As a judicial decree, such injunctions are
“subject to the rules generally applicable to other judgments and decrees,” 

see 

Further, individuals and entities subject
to injunctions must have fair notice of the terms of the injunction and any
modifications that take place. See W. Water Mgmt., Inc. v. Brown, 

,
109 (5th Cir. 1994); Alabama Nursing Home Ass’n v. Harris, 

,
387–88 (5th Cir. 1980). Upon proper notice, the district court may modify the
terms of an injunction sua sponte. W. 

.
      Despite the fact that the parties jointly agreed to the initial terms, the
court utilized its flexible authority to modify the decree when faced with
changed circumstances. See 

. Although Thompson
satisfied the stated requirements for the CDIO position, the district court
found that Jackson was more qualified through life experience and community
involvement. The parties were on notice of a possible modification at least
through the CCO’s earlier annual report suggesting the court name Jackson.
The School Board was not “unprepared” to defend its selection of Thompson.
See W. 

. Modification of the academic-qualifications
requirement was not an abuse of discretion.
      The School Board next argues that the district court improperly modified
the process for selecting and approving a CDIO. The record reveals, though,
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that there had been prior referral of final approval of a CDIO to the court. For
example, the School Board sought the court’s approval when the first CDIO
was replaced, then failed to do so for the CDIO immediately thereafter. Since
the position was created in 2008, the School Board sought court approval for
three out of four candidates.
       The same principles articulated earlier apply here. The district court
had the authority to modify the terms of the injunction when faced with
changed circumstances. See 

. As previously noted,
the district court found Jackson to be more qualified than Thompson and
rejected the School Board’s recommendation. Further, the School Board was
clearly on notice of the district court’s prior involvement, having approached
the court for approval of a CDIO candidate at least three times. See W. 

. The district court did not abuse its discretion in modifying the
selection-and-approval process.


II.       Denial of Rule 60(b) Motion for Relief from Judgment
          In its Rule 60(b) motion for relief from judgment, the School Board
argued that Jackson has several conflicts of interest rendering him unfit to
serve as CDIO. The first was that Jackson had been married to “Catherine
Moore (the alleged daughter of M.C. Moore and sister of named class
representative Joyce Marie Moore), with whom he has one child.” The second
was due to evidence the School Board obtained “of a certificate of marriage
between one Jessie Jackson, Jr. (allegedly a relation to Andrew Jackson) and
Joyce Marie Moore (the daughter of M.C. Moore and on whose behalf he filed
suit).”     Finally, the School Board claims Jackson is involved with a local
Ministerial Alliance, which may inhibit the impartial exercise of judgment.
          In response, Plaintiffs admit that Jackson was married to Catherine
Moore from 1969 to 1975. Plaintiffs also acknowledge that Jackson and Moore
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have a daughter together who is related to the plaintiffs. Regardless, they
contend the School Board has not shown from these facts that any conflict of
interest “would interfere with Mr. Jackson fairly performing his duties as a
CDIO.” As to the other claimed disqualifying relationship, Plaintiffs argue
that even if someone named Jessie Jackson once married Joyce Marie Moore,
the School Board offered no evidence to show that he and the CDIO Jackson
are related.
      The district court found that Jackson’s familial ties were insufficient to
warrant reversal of its earlier appointment order.           It acknowledged the
existence of the marriage relationship between Andrew Jackson and Catherine
Moore but determined the relationship created neither an actual conflict nor
the appearance of impropriety.         It further noted the lack of evidence
establishing a relationship between Andrew and Jessie Jackson. “Without
evidence that these two individuals are actually related,” it held, “this Court
cannot find that there is a relationship that could reasonably implicate a
conflict of interest.”
      A district court does not abuse its discretion by making a decision after
the parties present little or no evidence of a particular fact. See, e.g., Shaffer
v. Williams, 

, 1033–34 (5th Cir. 1986). At most, there is an
admission that Andrew Jackson and Catherine Moore were once married and
had a child together who is related to the named Plaintiffs. The marriage was
in the distant past, and the School Board did not show an actual conflict arising
from Jackson’s daughter. The district court did not rule based on “an erroneous
view of the law or on a clearly erroneous assessment of the evidence.” See
Cooter & Gell v. Hartmarx Corp., 

, 405 (1990).
      As to Jackson’s affiliation with the Ministerial Alliance, the district court
concluded this argument could not be reconsidered at this point. The district
court understood that the issue had been addressed when the School Board
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first moved for approval of Lawrence Thompson as CDIO. It appears, though,
that Jackson’s affiliation with the Ministerial Alliance was not raised as an
issue at that time. The memorandum in support of that motion contained no
reference to the Ministerial Alliance, and Jackson is only mentioned in a brief
footnote. The argument is a new one.
      According to a newspaper article the School Board offered as an exhibit,
the Ministerial Alliance is an interdenominational organization “with the goal
of raising all people of th[e] area politically, economically and socially.”
Jackson is the vice president of the Alliance and also serves as “the pastor of a
major congregation in Tangipahoa Parish[.]” In his capacity as vice president
of the Alliance, Jackson has revealed his intent to “emphasize political
involvement.” In its supplemental brief, the School Board identified this as a
conflict of interest because Jackson allegedly “revealed that he was acting on
behalf of [the Alliance] regarding the desegregation case — the same
desegregation case for which he was appointed to serve as CDIO and act on
behalf of the Board.” The School Board introduced into evidence an email
showing that Jackson had at least twice acted in his capacity as vice president
of the Ministerial Alliance to conduct meetings and engage in correspondence
regarding the School Board’s desegregation plan.
      As with the alleged marital conflicts, the School Board has failed to
produce evidence establishing how the Ministerial Alliance affiliation has
previously or might potentially generate a conflict. We conclude Jackson’s role
with the Ministerial Alliance does not justify holding the district court abused
its discretion in appointing Jackson as CDIO.
      AFFIRMED.




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