     Case: 12-31218   Document: 00512541962     Page: 1   Date Filed: 02/24/2014




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

                                                                      FILED
                                                                February 24, 2014
                                 No. 12-31218
                                                                    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.

LOUISIANA BOARD OF ELEMENTARY AND SECONDARY EDUCATION;
LOUISIANA DEPARTMENT OF EDUCATION; JOHN WHITE,

                                           Movants – Appellants




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


Before OWEN, SOUTHWICK, and GRAVES, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      The Louisiana Board of Elementary and Secondary Education, the
Louisiana Department of Education, and John White, Superintendent of
Education, appeal the grant of an injunction prohibiting them from
implementing Act 1 and Act 2 of the 2012 Regular Session of the Louisiana
Legislature. Finding all issues related to Act 2 moot and a lack of jurisdiction
to enjoin Act 1, we VACATE the injunction and REMAND for dismissal of all
issues related to Acts 1 & 2.
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                                      No. 12-31218
                FACTUAL AND PROCEDURAL BACKGROUND
       This appeal is from recent decisions by the district court in a lawsuit filed
against the Tangipahoa Parish School Board in 1965. In 2010, the district
court entered a Consent Decree which required various actions and defined
various responsibilities of the School Board. In 2012, the plaintiffs filed an
action against the School Board, the Louisiana Board of Elementary and
Secondary Education (“BESE”), the Louisiana Department of Education, and
John White, Superintendent of Education, 1 pursuant to the All Writs Act. See
28 U.S.C. § 1651.           The action sought an injunction prohibiting the
implementation of two acts passed in the 2012 Regular Session of the
Louisiana Legislature on the basis that implementation of the acts would
violate the Consent Decree.          Act 1 of the 2012 legislature adjusted the
standards for evaluating and discharging ineffective teachers. Act 2 permitted
Minimum Foundation Program (“MFP”) funds 2 to be allocated to individual
students as vouchers to attend private schools or pay for supplemental courses
from various other education providers.
       Act 1 vests authority for school staffing decisions primarily with school
superintendents and principals. It also permits an “ineffectiveness” criterion
to be used as the sole basis for discharging teachers. Before Act 1, discharging
a teacher required substantial documentation of “poor performance,
incompetence or willful neglect of duty.” See LA. REV. STAT. 17:443(D). Act 1



       1  We refer to the BESE, Louisiana Department of Education, and Superintendent of
Education John White as the “state defendants” to distinguish them from the School Board,
which, while the nominal defendant in the desegregation case, was pursuing interests
adverse to the state with respect to Acts 1 & 2 prior to Louisiana Federation of Teachers v.
State of Louisiana, 118 So. 3d 1033, 1050-56 (La. 2013).
        2 The Minimum Foundation Program is a creation of the Louisiana Constitution. It

created the BESE and charges it with determining the amount of funds needed to provide a
minimum level of education to Louisiana’s children and allocating the funds among the
state’s school districts. See LA. CONST. ART. VIII, §13(B).
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                                 No. 12-31218
relieves superintendents of these stricter requirements by permitting a finding
of ineffectiveness alone to be a basis for a finding of “poor performance,
incompetence, or willful neglect of duty.” See LA. REV. STAT. 17:443(D); see also
LA. REV. STAT. 17:3881 (setting forth the criteria for effectiveness
determinations). Nonetheless, Act 1 contains a provision explicitly directing
all public schools to carry out their obligations under that Act in accordance
with existing desegregation orders. See LA. REV. STAT. 17:81(A)(5).
      The 2010 Consent Decree includes provisions designed to increase the
percentage of black teachers in the Tangipahoa Parish school district. The
Consent Decree sets forth specific procedures the School Board is to implement
in its hiring process, such that it will be more likely to hire black teachers to
fill open teaching positions. The Consent Decree does not include a set of
procedures for evaluation of black teachers’ performance, nor does it make any
special rules for discharge of black teachers. The Consent Decree also provides
for the construction of new schools, the implementation of various new
programs, and new student-school assignments based upon the new
construction and programs. The plaintiffs allege Act 1 interferes with the
Consent Decree by allowing subjective evaluations of teachers that might
frustrate the Consent Decree’s provisions for increasing the proportion of black
teachers in Tangipahoa Parish.
      Act 2 creates a school voucher program which diverts MFP funds from
the school districts to individual children so they can use the funds to attend a
private school or take courses not offered in their public schools from other
independent course providers. Thus, each dollar that accompanies a child to a
new school or is used to pay for an additional course is deducted from the
budget of the school district the student departed. The School Board agreed
with plaintiffs that Act 2 interfered with its compliance with the Consent
Decree.
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                                 No. 12-31218
      In October 2012, the district court issued writs requiring the state
defendants to show cause why a preliminary injunction should not be entered
to stop the implementation of the voucher mechanisms in Act 2 that permit
students to use public funds to attend private schools. Later, the plaintiffs
expanded their request for relief to include enjoining payments of public funds
to the entities providing additional courses and the Act 1 teacher evaluation
provisions. The district court held a hearing on November 26, 2012 regarding
whether Act 1 and Act 2 should be enjoined. At the conclusion of the hearing,
the district court orally granted an injunction. The state defendants
unsuccessfully moved the district court for a stay pending appeal, and a
written order enjoining the Acts was entered on November 28. The district
court based the injunction on the All Writs Act and the court’s inherent
authority to protect its own orders. Meanwhile, on November 30, a state trial
court held Act 2 unconstitutional under the Louisiana Constitution. This
Court granted a stay pending appeal on December 14, 2012.
      On May 7, 2013, the Louisiana Supreme Court affirmed the state trial
court, holding Act 2 unconstitutional under the Louisiana Constitution. The
court held that Article VIII, § 13(B) of the Louisiana Constitution forbade Act
2’s diversion of funds from the school districts to educational entities other
than the public schools. See Louisiana Fed’n of Teachers, 118 So. 3d at 1055.
      The School Board soon moved for its dismissal from this appeal on the
grounds that the state supreme court’s decision mooted all issues pertaining to
the School Board and the implementation of Act 2. This Court granted that
motion on July 19, 2013, concluding that all issues affecting the School Board
were moot. Before us now is the question of whether all issues pertaining to
Act 2 are moot as to all defendants and whether or not the district court abused
its discretion by enjoining the implementation of Act 1.


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                                 No. 12-31218
                                 DISCUSSION
      A district court’s grant of an injunction is reviewed for abuse of
discretion, with findings of fact reviewed for clear error and conclusions of law
supporting the injunction reviewed de novo. Affiliated Prof’l Home Health Care
Agency v. Shalala, 164 F.3d 282, 284-85 (5th Cir. 1999). The question of
whether state defendants are entitled to sovereign immunity is likewise
reviewed de novo. Hale v. King, 642 F.3d 492, 497 (5th Cir. 2011).


      A. Are All Issues Pertaining to Act 2 Moot?
      We start our review by analyzing whether the plaintiffs’ claims with
respect to Act 2 are moot following the Louisiana Supreme Court’s decision in
Louisiana Federation of Teachers. We find instructive a decision involving
whether a city was legally permitted to charge a company various fees. AT&T
Commc’n of Sw., Inc. v. City of Austin, 235 F.3d 241, 244 (5th Cir. 2000). By
the time of our review of a district court’s ruling, the city had repealed the
ordinance requiring the fees and had waived any right to collect past-due fees.
Id. We held the question of whether the city was legally permitted to charge
these fees was moot, since the city no longer had any claim to the fees and the
company was no longer obligated to pay them.
      The plaintiffs’ claims with regard to Act 2 rest upon the diversion of
funds from the public school system to private schools or other non-public
educational organizations. The essence of this claim was that the diverted
funds could not be used to pay for various projects contemplated by the Consent
Decree, and therefore impaired the ability of the School Board to comply. This
impairment, in turn, would harm the students of the school district by
depriving them of the benefits to which they were entitled under the Consent
Decree.


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      The Louisiana Supreme Court has now invalidated this provision of Act
2, holding that the state constitution required all MFP funds to be allocated to
public schools and not be diverted elsewhere. Louisiana Fed’n of Teachers, 118
So. 3d at 1055. Consequently, the School Board and plaintiffs no longer face
the threat of losing those funds.      Whatever impairment or injury to the
plaintiffs might have arisen from diversion of MFP funds from the school
district cannot now occur.
      As there is no longer any threat to the Consent Decree or the students in
Tangipahoa Parish from the diversion of MFP funds, all issues pertaining to
Act 2 are moot. “Where an appeal is dismissed by reason of mootness, the
appellate court is to vacate the decision below and direct that it be dismissed
for mootness, so that it will spawn no legal consequences.” Lebus for and on
Behalf of N.L.R.B. v. Seafarers’ Int’l Union of N. Am., Atlantic, Gulf, Lakes and
Inland Waters Dist., AFL-CIO, 398 F.2d 281, 283 (5th Cir. 1968). The district
court shall dismiss all issues pertaining to Act 2 as moot.


      B. Did the District Court have Jurisdiction to Enjoin the State
         Defendants?

      The Eleventh Amendment codified the sovereign immunity of the several
states.   Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267 (1997).
Federal courts are without jurisdiction over suits against a state, a state
agency, or a state official in his official capacity unless that state has waived
its sovereign immunity or Congress has clearly abrogated it. Id.; Seminole
Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996). Despite this bar, a federal court
may enjoin a state official in his official capacity from taking future actions in
furtherance of a state law that offends federal law or the federal Constitution.
See Coeur d’Alene Tribe of Idaho, 521 U.S. at 269 (citing Ex Parte Young, 209
U.S. 123 (1908)). Only state officials, not state agencies, may be enjoined.
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                                  No. 12-31218
Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146
(1993). Whether state defendants are entitled to sovereign immunity is a
question of law, reviewed de novo on appeal. See King, 642 F.3d at 497.
      The plaintiffs sought an injunction against the BESE and the Louisiana
Department of Education. The state defendants argue that as to the two
agencies, this suit is substantially a suit against the state itself. We agree.
The Young exception “has no application in suits against the States and their
agencies, which are barred regardless of the relief sought.” See Metcalf & Eddy,
506 U.S. at 146. (emphasis added). Two of the state defendants, the BESE and
the Department of Education, are not individual officers, but rather agencies
of the state. We conclude the district court abused its discretion by exercising
jurisdiction over the two state agency defendants, which enjoy sovereign
immunity against such exercises of jurisdiction.
      White is the Superintendent of Education for the State of Louisiana.
Plaintiffs sued to enjoin him from implementing and enforcing Act 1 because
the Act’s provisions are “contrary [to] the remedial nature” of the Consent
Decree with respect to employment of black teachers.           Plaintiffs further
contend that the new termination framework is “subjective” and therefore
“open[s] the door to restoration of the standard less subjectivity that impacted
on the presence of black teachers” in Tangipahoa Parish. These claims are
apparently based on allegations of discrimination credited by the district court
during the course of the desegregation proceedings in the parish. Nonetheless,
no party has presented any evidence that White has yet taken any action
pursuant to Act 1 that has violated federal law, nor that his implementation of
Act 1 will result in a direct violation of federal law. See Coeur d’Alene Tribe of
Idaho, 521 U.S. at 269.     The district court did not make factual findings
regarding any present or future implementation efforts, but merely concluded
that the teacher discharge provisions might frustrate the Consent Decree’s
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                                  No. 12-31218
stated goal of increasing the number and proportion of black teachers. It is
true that a federal court may enjoin a state official in his official capacity from
taking future actions in furtherance of a state law that offends federal law or
the federal Constitution. Id. (citing Ex Parte Young, 209 U.S. 123). Far from
presenting evidence of a potential violation of the federal constitution or law,
though, the plaintiffs have not even shown that anything White has done or
may validly do under Act 1 creates a tangible conflict with the Consent Decree
in light of Act 1’s plain statement that it shall be implemented in compliance
with all desegregation orders.
      Since the BESE and the Louisiana Department of Education are
agencies and suing them is the same as suing the State of Louisiana itself, we
conclude the district court lacked jurisdiction to enter an injunction against
the two state agency defendants. See Metcalf & Eddy, 506 U.S. at 146. White
cannot be enjoined without some showing that Act 1 is causing or will cause
him to violate federal law and that the prospective relief is necessary to prevent
such a violation. See Young, 209 U.S. at 159-60. Since the state defendants
enjoy sovereign immunity, and the Young exception is inapplicable, we
conclude the district court abused its discretion by entering the injunction
barring the implementation of Act 1.
      The injunction is VACATED and this case REMANDED for dismissal of
all claims.




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