                    RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit Rule 206
                               File Name: 10a0231p.06

             UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                              _________________


                                                X
                            Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
                                                 -
                                                 -
PEOPLE FIRST OF TENNESSEE, on behalf of all -
                                                        No. 09-5474

                                                 ,
                                                  >
                        Intervenors-Appellees, -
its members,

                                                 -
                                                 -
                                                 -
PARENT-GUARDIAN ASSOCIATIONS OF
                                                 -
                                    Intervenor, -
ARLINGTON DEVELOPMENTAL CENTER,

                                                 -
                                                 -
                                                 -
            v.
                                                 -
STATE OF TENNESSEE; PHIL BREDESEN, in his -
                                                 -
                                                 -
official capacity as Governor of the State of
                                                 -
Tennessee; VIRGINIA BETTS, in her official
capacity as Commissioner of the Department       -
                                                 -
                                                 -
of Mental Health and Developmental

                                                 -
Disabilities; M.D. GOETZ, JR., in his official
                                                 -
capacity as Commissioner of the Tennessee
Department of Finance and Administration;        -
                                                 -
Chief Officer of the Arlington Developmental -
NINA STAPLES, in her official capacity as

                                                 -
                       Defendants-Appellants. N-
Center,


                   Appeal from the United States District Court
                for the Western District of Tennessee at Memphis.
                No. 92-02062—Bernice B. Donald, District Judge.
                              Argued: April 20, 2010
                       Decided and Filed: August 4, 2010
       Before: BOGGS, SUHRHEINRICH, and ROGERS, Circuit Judges.




                                         1
No. 09-5474         United States v. State of Tenn., et al.                           Page 2


                                   _________________

                                        COUNSEL
ARGUED: Michael W. Kirk, COOPER & KIRK, PLLC, Washington, D.C., for
Appellants. Judith A. Gran, REISMAN CAROLLA GRAN LLP, Haddonfield, New
Jersey, Lisa J. Stark, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellees. ON BRIEF: Michael W. Kirk, Charles J. Cooper, Derek L.
Shaffer, Brian S. Koukoutchos, COOPER & KIRK, PLLC, Washington, D.C., Dianne
S. Ducus, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville,
Tennessee, for Appellants. Judith A. Gran, REISMAN CAROLLA GRAN LLP,
Haddonfield, New Jersey, Mark L. Gross, Sarah E. Harrington, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., Earle J. Schwarz, LAW OFFICE,
Memphis, Tennessee, for Appellees.
                                   _________________

                                        OPINION
                                   _________________

        SUHRHEINRICH, Circuit Judge. The State of Tennessee (“State”) appeals the
district court’s denial of its motion under Federal Rule of Civil Procedure Rule 60(b)(5).
The sole issue on appeal is whether the district court abused its discretion when it
refused to vacate all outstanding court orders and consent decrees granting injunctive
relief (“injunctive relief”). This injunctive relief arises from the district court’s original
1993 ruling that the State was violating the substantive due process rights of mentally
retarded (“MR”) residents at Arlington Development Center (“ADC”), a state-operated
home for MR individuals. The State argues that this injunctive relief, which has
remained in place for over a decade, should be lifted because a significant change in law
has occurred since the original judgment. The United States Department of Justice Civil
Rights Division (“United States”) and People First of Tennessee (“People First”), a
certified class of MR adults that benefits from the injunctive relief, oppose the State’s
request. For the reasons set forth below, we AFFIRM.
No. 09-5474         United States v. State of Tenn., et al.                          Page 3


                                      I. Background

        The United States brought this suit against the State and some of its officials in
January 1992, pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C.
§ 1997. The complaint alleged, among other things, that the State failed to ensure that
ADC residents received adequate medical care, were free from neglect and abuse, and
were not subject to undue bodily restraint. In support of its complaint, the United States
argued that the State was violating the substantive due process rights of the MR residents
at ADC, as established by the Supreme Court in Youngberg v. Romeo, 457 U.S. 307
(1982). In Youngberg, the mother of an involuntarily institutionalized MR man held at
a state-run institution brought suit against the state on her son’s behalf. Id. at 310. She
contended that the state owed her son substantive due process rights under the
Fourteenth Amendment because of his involuntary confinement. Id. The Court agreed
and stated that when an individual is involuntarily institutionalized through state legal
proceedings, he has a substantive due process right to adequate food, shelter, clothing,
and medical care, as well as reasonable safety, freedom from unnecessary bodily
restraint, and reasonable habilitation (“Youngberg rights”). Id. at 324. The United
States argued that sufficient state action existed at ADC to trigger these Youngberg
rights. The United States noted that the State ultimately decided to accept an MR
individual into its care, ADC was a state-run facility, Tennessee law limited the
circumstances under which a resident could be discharged from the facility, and the State
controlled “virtually every aspect of the . . . lives” of ADC residents once admitted.

        In March 1992, the State moved to dismiss the complaint. The State argued that
the Supreme Court’s decision in DeShaney v. Winnebago County Department of Social
Services, 489 U.S. 189 (1989), stood for the proposition that the State did not owe
Youngberg rights to ADC residents. In DeShaney, the mother of a boy who was
rendered profoundly retarded by his father’s beatings brought suit on the boy’s behalf
against social workers and other local officials who knew that he was at risk of injury
by his father but did nothing. Id. at 191. Even though the boy was not in state custody
at the time of his abuse, he claimed that the government officials’ failure to affirmatively
No. 09-5474         United States v. State of Tenn., et al.                             Page 4


act to protect him from his father deprived him of his Due Process Clause right to liberty.
Id.   The Court disagreed and held that Youngberg rights did not exist in this
circumstance. Id. at 201. It reasoned:

        In the substantive due process analysis, it is the State’s affirmative act of
        restraining the individual’s freedom to act on his own behalf–through
        incarceration, institutionalization, or other similar restraint of personal
        liberty–which is the deprivation of liberty triggering the protections of
        the Due Process Clause, not its failure to act to protect his liberty
        interests against harms inflicted by other means.

Id. at 200. In reaching this conclusion, the Court limited its holding in Youngberg to
“stand only for the proposition that when the State takes a person into its custody and
holds him there against his will, the Constitution imposes upon it a corresponding duty
to assume some responsibility for his safety and general well-being.” Id. at 199-200.

        The State argued that, in accordance with DeShaney, Youngberg did not apply
because residents were not at ADC due to affirmative acts by the State. It reasoned that,
“with rare exception,” parents or other legal representatives placed residents at ADC.
Similarly, the State maintained that it did not engage in state action to involuntarily keep
ADC residents at the facility because these same parents or other legal representatives
could remove a resident at any time.

        The district court denied the State’s motion to dismiss in August 1992. United
States v. Tennessee, 798 F. Supp. 483 (W.D. Tenn. 1992). The district court discussed
Youngberg and DeShaney in detail and determined that “under certain circumstances the
state has a duty to provide services and care to institutionalized individuals[,]” such as
when “a person is institutionalized–and wholly dependent on the State.” Id. at 486.
Despite the fact that parents or other legal guardians voluntarily placed most ADC
residents into the State’s care, the court determined that the United States had alleged
enough state action at ADC to implicate Youngberg rights. Id. at 487. It noted that the
State had accepted ADC residents into its care and thus accepted responsibility for their
needs. Id. The district court emphasized Tenn. Code Ann. § 33-5-103, which mandated
that, once admitted to ADC, a resident was under the “exclusive care, custody and
No. 09-5474         United States v. State of Tenn., et al.                           Page 5


control of the commissioner and superintendent.” Id. The district court further noted
Tenn. Code Ann. § 33-5-101(b), which suggested that the superintendent had discretion
to deny a resident’s discharge request. Id. at 487 n.8. Lastly, the court underscored that
state actors controlled every aspect of residents’ daily life, including treatment, care, and
movement in and out of ADC. Id. at 487.

        In May 1993, Tennessee repealed Tenn. Code Ann. § 33-5-103 and amended its
laws to make clear that the superintendent was required to discharge any individual
within twelve hours upon request; however, a person lacking capacity still needed a
parent or other legal guardian to make this request. See Tenn. Code Ann. § 33-5-303.
In July 1993, the State filed a second motion to dismiss based upon, among other things,
these changes to Tennessee law. Nevertheless, after a four-week bench trial on the
merits that began in August 1993, the district court issued an oral opinion in November
1993, held the State liable for violating ADC residents’ Youngberg rights, and ordered
the State, in cooperation with the United States, to submit a plan to remedy the
constitutional violations at ADC. The court issued Supplemental Findings of Fact in
February 1994, where it more specifically identified which conditions at ADC violated
residents’ Youngberg rights. These conditions included, inter alia, substandard training
of staff, deficient supervision of residents who posed dangers to themselves and others,
inadequate medical care and related health services, inadequate habilitation and
psychological services, and improper feeding practices. The court found that these
failures had led to thousands of injuries over the years.

          In August 1994, the parties submitted a comprehensive stipulated remedial
order to address the concerns raised in the district court’s opinion. The remedial order
included more than one hundred requirements that pertained to how the State would
operate ADC in a constitutionally acceptable manner and a schedule for meeting these
new requirements. The order included a plan to reduce the population of ADC by
transitioning some current residents to arranged community living, an agreement to
cease new admissions at ADC without court approval, a guarantee to provide some
community-based services to former ADC residents, and new staffing and services
No. 09-5474         United States v. State of Tenn., et al.                           Page 6


requirements. The order also stated that a court-appointed monitor would oversee the
State’s compliance with the remedial plan. In September 1994, the district court
approved the remedial order. The district court entered judgment in favor of the United
States in August 1995. The State did not appeal this judgment.

        During this time period, another case with similar allegations proceeded against
the State. People First filed that suit in December 1991 and, in January 1993, the Parent
Guardian Association of Arlington Development Center (“PGA”) intervened. In
September 1995, the district court extended its liability finding and remedial order in this
case to that parallel case. The district court also permitted People First and PGA to
intervene in this case. Furthermore, the district court approved a plaintiff class in this
case defined as individuals who had resided, were residing, or were at risk of residing
at ADC, and it appointed People First as class representative. PGA appealed the district
court’s class certification decision, and the Sixth Circuit affirmed the creation of this
plaintiff class and the district court’s designation of People First as class representative.
People First of Tenn. v. Arlington Developmental Ctr., 145 F.3d 1332 (table), 1998 WL
246146, at *3 (6th Cir. 1998) (per curiam).

        Also in 1995, the district court held the State in contempt for failure to comply
with the remedial order. In the ensuing years, litigation between the parties has resulted
in multiple findings of contempt, additional plans of corrections, settlement agreements,
and consent orders. The injunctive relief has endured throughout this time. In its current
form, the injunctive relief oversees benefits for a plaintiff class that encompasses
approximately 1,200 individuals, most of which do not live at ADC. The injunctive
relief guarantees class members comprehensive daily care in matters such as health,
safety, and nutrition. It mandates funding for programs such as a state-provided
healthcare program, a housing subsidy, a transportation subsidy, dental benefits, vision
benefits, and advocacy services. A court-appointed monitor continues to oversee the
injunctive relief. The State maintains that the injunctive relief causes it to spend around
$30,000,000 a year more than it would if it treated the class members like other similarly
situated MR persons in Tennessee.
No. 09-5474           United States v. State of Tenn., et al.                                Page 7


        In September 2008, the State filed this Rule 60(b)(5) motion and asked the
district court to vacate the injunctive relief and dismiss the case. In support of its
motion, the State argued that continuing the injunctive relief was inequitable because of
changes in law that now made clear that the MR residents at ADC were not entitled to
Youngberg rights because these residents resided voluntarily in the State’s care. The
State noted that, since 1993, Tennessee had amended its laws to guarantee discharge
from a state-operated institution upon request. It further pointed to this court’s
unpublished decision in Higgs v. Latham, 946 F.2d 895 (table), 1991 WL 216464 (6th
Cir. 1991) (per curiam), and decisions from our sister circuits that it argued supported
its argument. The United States, People First, and PGA opposed this motion.1

        The district court held that the State had failed to establish the existence of a
significant change in law and denied the motion. United States v. Tennessee, No. 92-
2062, at 11 (W.D. Tenn. Feb. 18, 2009). The court acknowledged that, in some other
circuits, the determination of whether an individual is entitled to Youngberg rights
depends upon the method of the MR adult’s confinement. Id. at *6-7. Nevertheless, it
determined that ADC residents remained involuntarily committed because, although
Tennessee had amended its laws to guarantee discharge at the request of a resident with
capacity, the MR residents at ADC still depended upon the request of a parent or other
legal representative to be discharged. Id. at *7-8. In support of this conclusion, the court
cited Doe v. Austin, 848 F.2d 1386, 1392 (6th Cir. 1988), to hold that the law of this
circuit remained that MR residents of state-run facilities are involuntarily committed into
the state’s care as a matter of law when another person instigated the commitment on
behalf of the MR individual. Id. at *8. The court also rejected the State’s contention
that this court’s unpublished decision in Higgs, which predated the original judgment in
this case, could satisfy the requirement of showing a significant change in law simply
because, according to the State, this circuit’s rules regarding unpublished opinions had
changed since the 1992 refusal to dismiss the complaint. Id. at *9-10. Lastly, the district
court held that the injunctive relief should remain in force even if ADC residents

        1
          PGA did not file briefs in this appeal and is now called the West Tennessee Parent Guardian
Association.
No. 09-5474        United States v. State of Tenn., et al.                          Page 8


voluntarily resided in state custody because they still retained certain substantive due
process rights, such as freedom from undue restraint and physical abuse, that justified
continuing the injunctive relief. Id. at *10. The State appeals.

                                  II. Legal Standard

       Federal Rule of Civil Procedure 60(b)(5) allows a court to grant relief from a
final judgment when “applying it prospectively is no longer equitable.” Fed. R. Civ. P.
60(b)(5). We review a denial of a Rule 60(b)(5) motion for abuse of discretion. Brown
v. Tenn. Dep’t of Fin. & Admin., 561 F.3d 542, 545 (6th Cir. 2009). “A court abuses its
discretion when it commits a clear error of judgment, such as applying the incorrect legal
standard, misapplying the correct legal standard, or relying upon clearly erroneous
findings of fact.” In re Ferro Corp. Derivative Litig., 511 F.3d 611, 623 (6th Cir. 2008).
The Supreme Court has noted that “[i]t is true that the trial court has discretion, but the
exercise of discretion cannot be permitted to stand if we find it rests upon a legal
principle that can no longer be sustained.” Agostini v. Felton, 521 U.S. 203, 238 (1997).

       The Supreme Court recently addressed how courts should approach Rule
60(b)(5) motions in the context of institutional reform litigation in Horne v. Flores, 129
S. Ct. 2579 (2009). The Court noted that federal encroachment upon states’ rights is
more likely to occur in institutional reform litigation and determined that “courts must
take a ‘flexible approach’ to Rule 60(b)(5) motions addressing such decrees.” Id. at
2594 (quoting Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 381 (1992)).
Specifically, the Horne Court directed courts not to focus on a party’s failure to appeal
when considering a motion under Rule 60(b)(5) in institutional reform litigation. Id. at
2596. Instead, courts must conduct

       the type of Rule 60(b)(5) inquiry prescribed in Rufo. This inquiry makes
       no reference to the presence or absence of a timely appeal. It takes the
       original judgment as a given and asks only whether “a significant change
       either in factual conditions or in law” renders continued enforcement of
       the judgment “detrimental to the public interest.”
No. 09-5474        United States v. State of Tenn., et al.                         Page 9


Id. at 2596-97 (quoting Rufo, 502 U.S. at 384); see generally Sweeton v. Brown, 27 F.3d
1162, 1166-67 (6th Cir. 1994) (en banc) (“Neither the doctrines of res judicata or waiver
nor a proper respect for previously entered judgments requires that old injunctions
remain in effect when the old law on which they were based has changed.”).

       Accordingly, despite the State’s failure to appeal the original judgment entered
by the district court, we now employ a Rufo analysis. We take the original judgment as
a given, and, because the State does not argue that a subsequent change in factual
conditions has occurred, we determine whether a significant change in law has occurred
since the original judgment. The State bears the “initial burden” of showing a significant
change in law because it is the “party seeking modification.” Rufo, 502 U.S. at 384; see
also Brown, 561 F.3d at 546 (noting some subsequent changes in decisional law and
stating that “the remaining question is whether Tennessee has carried its burden of
proof”). To meet this burden, the State must put forward “new court decisions or
statutes that make legal what once had been illegal.” Associated Builders & Contractors
v. Mich. Dep’t of Labor & Econ. Growth, 543 F.3d 275, 278 (6th Cir. 2008). Generally,
for a new court decision to make legal what was once illegal, it must be a subsequent
published decision of the Sixth Circuit or a decision from the United States Supreme
Court. See, e.g., Doe v. Briley, 562 F.3d 777, 784 (6th Cir. 2009) (affirming district
court’s order vacating injunctive relief where the constitutional claim upon which the
initial decree was based was “utterly indistinguishable from the claim rejected [by the
Supreme Court]” in an intervening case), and Brown, 561 F.3d at 548 (6th Cir. 2009)
(applying Rufo and citing an intervening published Sixth Circuit decision to vacate the
relevant part of a settlement).

       The State employs several arguments in an attempt to convince this court that a
significant change in law has occurred. We consider each argument in turn.
No. 09-5474        United States v. State of Tenn., et al.                       Page 10


                                      III. Analysis

       Many of the State’s arguments focus on the Supreme Court’s decision in
DeShaney and its progeny—just as the State’s arguments did in its March 1992 motion
to dismiss. We begin by noting that DeShaney, decided in 1989 and discussed and
distinguished at length in the district court’s August 1992 ruling on the motion to
dismiss, is not a “new court decision[].” Associated Builders, 543 F.3d at 278. As a
result, DeShaney cannot satisfy the State’s initial burden under Rufo.

       For the same reason, our unpublished opinion in Higgs does not help the State.
In Higgs, a mentally ill patient, admitted into a state-run mental hospital and
subsequently sexually assaulted by another patient, unsuccessfully sued the state for
violating her substantive due process rights. Higgs, 1991 WL 216464, at *1. Applying
DeShaney, we held that the state did not owe the patient Youngberg rights because she
voluntarily entered and resided in the state’s care. Id. at *3. We reasoned that “there
was no affirmative act by the hospital to deprive her of liberty, and therefore no
triggering of the state’s constitutional duty to protect those it renders helpless by
confinement.” Id. at *4 (internal quotation marks omitted). As with DeShaney, we do
not need to determine whether Higgs could be interpreted to support the State’s
argument because it was decided in 1991, prior to the district court’s oral ruling on
liability in November 1993.

       Moreover, Higgs is an unpublished opinion that does not bind this court in the
way that a published opinion does. United States ex rel. Bledsoe v. Cmty. Health Sys.,
Inc., 501 F.3d 493, 507 (6th Cir. 2007) (citing United States v. Ennenga, 263 F.3d 499,
504 (6th Cir. 2001)). And we are not convinced by the State’s argument that Higgs can
now be considered new law because, according to the State, unpublished decisions are
more persuasive now than they were in August 1992 or November 1993. The fact that
unpublished opinions may be cited, where before their citation was restricted, did not
make them any more binding than they were before.

       The amendments to Tennessee’s laws subsequent to the August 1992 ruling on
the motion to dismiss also cannot satisfy the State’s initial burden. To meet its burden,
No. 09-5474        United States v. State of Tenn., et al.                        Page 11


the State must put forward “new . . . statutes.” Id. Yet these amendments became law
in May 1993, after the district court’s August 1992 ruling but before the district court’s
November 1993 ruling on liability. The State even filed a second motion to dismiss in
July 1993, prior to the court’s November 1993 ruling, that focused in part on these
changes in law.

       Additionally, these changes to Tennessee’s statutes did not “make legal what
once had been illegal.” Id. Section 33-5-303, the statute the state cites in favor of its
argument, guarantees discharge upon request within twelve hours. But, a person who
lacks capacity still must depend on a parent or other legal guardian to make this request.
Accordingly, these changes are only relevant here if there has been a change in law
regarding whether MR adults involuntarily reside in a state’s care when they are
incapable of competently choosing to stay or leave but have been voluntarily placed and
kept in the state’s care by a parent or other legal representative. However, this court’s
decision in Austin makes clear that the case law on this issue has not changed.

       In Austin, the plaintiffs, a certified class of MR persons, sued the State of
Kentucky to enjoin the commitment of MR persons to state-owned residential treatment
centers without a hearing. Austin, 848 F.2d at 1388. Kentucky argued that the plaintiffs
lacked standing because their commitment into the facility was voluntary. Id. at 1391-
92. Specifically, Kentucky had established a process where an MR adult could be
admitted into state custody “voluntarily” if a parent or guardian initiated the
commitment. Id. at 1392. This court rejected the notion that commitment could be
considered voluntary in this circumstance: “By legislative fiat, the Commonwealth has
deemed admissions initiated by a parent or guardian to be voluntary, with no regard for
the actual wishes of the committed person.” Id. This court continued:

       [T]he notion that the continuing confinement of the class members is
       voluntary notwithstanding the possible involuntariness of their initial
       confinement is, at best, an illusion. Indeed, the practice of relying upon
       some affirmative act on the part of profoundly and severely retarded
       persons to signal their will to escape confinement, coupled with the
       presence of a parent or guardian who may have played a pivotal role in
       institutionalizing the admittee in the first instance, creates a quite
No. 09-5474             United States v. State of Tenn., et al.                                       Page 12


         palpable danger that the adult child will be lost in the shuffle. We
         decline to adopt a measure of voluntariness for the commitment of adults
         that favors form over substance. Therefore, we agree with the district
         court that the commitment of mentally retarded adults by the
         Commonwealth upon application by a parent or guardian is to be
         considered involuntary.

Id. (internal quotation marks and citations omitted).

         The thrust behind the district court’s August 1992 ruling arguably was, consistent
with Austin, that the State owed Youngberg rights to ADC residents because of the
degree of State involvement in the daily life of its MR residents and these individuals’
inability to manifest a desire to enter into or leave the State’s care.2 See United States
v. Tennessee, 798 F. Supp. at 486-87. The fact that the modifications to the statutes after
the 1992 motion to dismiss ruling did not compel the district court to modify its prior
ruling further supports this conclusion. The changes to Tennessee’s statutes did nothing
to address these core concerns. As a result, these changes do not satisfy the State’s
initial burden, even if we ignore the fact that the changes preceded the imposition of the
original judgment.

         The State argues that the original judgment is no longer good law in the wake of
DeShaney and its progeny, which the State maintains has been significantly clarified
over time. Specifically, the State maintains that a circuit split existed in the early 1990s
regarding whether states owed Youngberg rights to residents that resided voluntarily in
their care. But, the State argues that these circuits have now reached a consensus that
states do not owe Youngberg rights to MR residents who have been voluntarily placed
into state care by a parent or other legal representative. It further asserts that every
published circuit court decision to consider this matter post-DeShaney has determined
that involuntary confinement is required to implicate residents’ Youngberg rights. See,
e.g., Brooks v. Giuliani, 84 F.3d 1454 (2d Cir. 1996) (applying DeShaney and holding
that “the State Defendants had no duty under the Due Process Clause to provide



         2
            The district court did not cite Austin in its August 1992 ruling, but the district court’s reasoning
in that ruling was nevertheless consistent with Austin’s holding.
No. 09-5474         United States v. State of Tenn., et al.                       Page 13


professionally adequate care” because the plaintiffs, eighteen MR individuals, were
voluntarily in the state’s care.)

        In making this claim, however, the State misconstrues the relevant question
before this court. Our Rufo analysis is limited to whether the State can meet its initial
burden of pointing to “new court decisions or statutes that make legal what once had
been illegal.” Associated Builders, 543 F.3d at 278. Although the parties dispute the
holding and relevance of each of these cases, they all agree that these cases are not
rulings of the Supreme Court or the Sixth Circuit. In fact, a published decision of this
circuit has recently stated that the Sixth Circuit has not weighed in on this purported
circuit split: “At this time, we do not need to decide whether the State owes the same
affirmative constitutional duties of care and protection to its voluntarily admitted
residents as it owes to its involuntarily committed residents under Youngberg.” Lanman
v. Hinson, 529 F.3d 673, 681 n.1 (6th Cir. 2008). Likewise, the Supreme Court has not
squarely addressed this issue. Therefore, although these cases from other circuits could
potentially be persuasive if this case were before us in another context, they cannot,
either individually or collectively, satisfy the State’s initial burden.

        We now turn to the State’s contention that Jackson v. Schultz, 429 F.3d 586 (6th
Cir. 2005), satisfies its initial burden. This argument presents a closer question than the
ones already considered because Jackson is a published Sixth Circuit opinion that was
issued several years after the district court’s original judgment. Unfortunately for the
State, however, Jackson did not “make legal what once had been illegal.” Associated
Builders, 543 F.3d at 278.

        In Jackson, the mother of a deceased man alleged that government-employed
EMTs had violated the decedent’s substantive due process rights when they placed him
into an ambulance and watched him die without providing medical care. Jackson, 429
F.3d at 588. Accepting the allegations in the complaint, the district court held that the
EMTs had violated the “decedent’s clearly established constitutional right to receive
competent medical care while in custody.” Id. This court disagreed:
No. 09-5474        United States v. State of Tenn., et al.                         Page 14


               The district court improperly held that moving an unconscious
       patient into an ambulance is custody. This court’s precedent has made
       clear that DeShaney’s concept of custody does not extend this far. This
       court has never held that one merely placed in an ambulance is in
       custody. The proper custody inquiry is whether the EMTs engaged in a
       restraint of personal liberty similar to the restraints mentioned in
       DeShaney. . . . The restraints of personal liberty mentioned in DeShaney
       all require some state action that applies force (or the threat of force) and
       show of authority made with the intent of acquiring physical control.

Id. at 590 (internal citations and quotation marks omitted). The court continued:

       There is no allegation that the EMTs restrained or handcuffed the
       decedent. There is no allegation that the decedent was not free to leave
       the ambulance or be removed from the ambulance. Decedent’s liberty
       was “constrained” by his incapacity, and his incapacity was in no way
       caused by the defendants.

Id. at 591. The court concluded that “no set of facts consistent with the allegations
shows that the EMTs did anything to restrain the decedent’s liberty. Thus, no set of facts
consistent with the allegations supports a finding that the EMTs took decedent into
custody.” Id.

       We begin our analysis of Jackson by acknowledging that there are some
similarities that favor the State’s argument. For example, the Jackson court emphasized
that the defendants did not cause the deceased’s incapacity, or his unconsciousness, and,
here, there are no allegations that the State caused the incapacity of the ADC residents,
or their intellectual disabilities. Further, the man in Jackson was unconscious until his
death, and, although he was free to leave whenever he chose, he could not choose to
enter or leave the ambulance because of his incapacity. Similarly, although ADC
residents are free to leave if they have capacity, most lack capacity and thus are reliant
on another person to decide whether they will enter or leave the state’s care.

       However, there is a significant disparity in the amount of state control in each
case. In Jackson, the man was “merely placed in an ambulance.” Id. at 590. By
contrast, ADC residents are subject to significant state involvement in almost every facet
of their daily life—including their food, transportation, shelter, medical care, and
No. 09-5474         United States v. State of Tenn., et al.                         Page 15


protection—and they generally remain in the State’s care for years. The comprehensive
level of state involvement in this case renders Jackson inapplicable. Also, the Jackson
court’s use of DeShaney does not somehow incorporate DeShaney and its progeny—and
specifically the cases from our sister circuits that the State claims satisfy its initial
burden—into the binding case law of this circuit. Because Jackson is not a significant
change in law under Rufo, Jackson cannot open the door for other cases to be considered,
especially when we have already determined that these other cases are not significant
changes in law.

        The State’s argument that this case, i.e., the Rule 60(b)(5) motion currently
before the court, can qualify as the significant change in law under Rufo also fails. The
only case law that the State provides to support this assertion is Agostini. In Agostini, the
Supreme Court employed the Rufo standard in an Establishment Clause case and
overturned an injunction that it had upheld ten years prior “in light of a bona fide,
significant change in subsequent law.” Agostini, 521 U.S. at 239. Contrary to the
State’s assertions otherwise, the Rule 60(b)(5) motion itself was not the significant
change in law in Agostini. Instead, the Court noted that “more recent cases ha[d]
undermined the assumptions upon which” the Court had relied when it first considered
the case. Id. at 222. In fact, the majority in Agostini expressly rejected the argument
now being made by the State. The Court made clear that “it was Zobrest [v. Catalina
Foothills Sch. Dist., 509 U.S. 1, 7 (1993)]–and not this litigation–that created ‘fresh
law.’” Id. at 225. The State’s interpretation of Agostini conflicts with the plain language
of that opinion, and we decline to adopt it.

        Lastly, Horne has not altered the standard for assessing Rule 60(b)(5) motions
so that a subsequent change in fact or law is no longer needed in institutional reform
litigation. The Court in Horne explicitly rejected this idea:

                This does not mean, as the dissent misleadingly suggests, that we
        are faulting the Court of Appeals for declining to decide whether the
        District Court’s original order was correct in the first place. On the
        contrary . . . our criticism is that the Court of Appeals did not engage in
        the changed-circumstances inquiry prescribed by Rufo.
No. 09-5474         United States v. State of Tenn., et al.                          Page 16


Horne, 129 S. Ct. at 2596 n.5 (internal citations omitted). Accordingly, we have
properly limited our analysis to the traditional Rufo standard.

        After considering each of the State’s arguments, it is clear that the district court
did not abuse its discretion when it dismissed the State’s Rule 60(b)(5) motion. The
State has not put forward a single case or statute that could qualify as the significant
change in law required to satisfy its initial burden under Rufo. In light of this failure, the
district court did not abuse its discretion when it refused to revisit the original judgment.
Because our ruling on this issue is dispositive, we decline to address the district court’s
alternative conclusion that, even if residents are at ADC voluntarily, the injunctive relief
should remain. Just like the district court, we also decline to address whether the State’s
motion was untimely because we do not need to resolve this issue to reach our holding.

                                     IV. Conclusion

        For the foregoing reasons, we AFFIRM.
