     Case: 18-30131      Document: 00514937912         Page: 1    Date Filed: 05/01/2019




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

                                                                                   FILED
                                                                                 May 1, 2019
                                      No. 18-30131
                                                                                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 - Appellants

v.

TANGIPAHOA PARISH SCHOOL BOARD, a corporation,

               Defendant - Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:65-CV-15556


Before STEWART, Chief Judge, and SOUTHWICK and ENGELHARDT,
Circuit Judges.

PER CURIAM:*
       This appeal stems from a long-running desegregation case. In 1967, the
district court issued an injunction prohibiting racial discrimination in the form
of segregation in public schools in Tangipahoa Parish, and has exercised
continuing supervision over the implementation of the Tangipahoa Parish



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-30131         Document: 00514937912         Page: 2    Date Filed: 05/01/2019



                                       No. 18-30131
School Board’s (“TPSB”) desegregation obligations. 1 As part of the court’s
initial injunctive ruling, the court ordered that the TPSB “make affirmative
attempts to desegregate its public schools and make all good faith efforts to
eradicate the vestiges of de jure segregation.” Moore v. Tangipahoa Parish Sch.
Bd., No. 65-15556, 2008 WL 1930501, at *1 (E.D. La. Apr. 30, 2008). The
Tangipahoa Parish School System has not yet achieved unitary status.
      In January 2010, the district court issued an order modifying the
desegregation plan with regard to the hiring procedures for all principal,
supervisor, and administrator positions in the Tangipahoa Parish School
System (“Order 866”). Upon considering criteria proposed by Plaintiffs and the
TPSB, the court implemented Order 866, which provided certain hiring
requirements in accordance with the parties’ diversity goal.
      The court ordered the hiring of qualified black applicants until the 40-60
ratio is achieved. Order 866 specifically states that “the school system shall
hire or appoint a qualified Black [applicant] . . . to achieve a diversity goal of
40 percent Black and 60 percent white in each category [of administrators].”
Order 866 requires all applicants to be screened by the Tangipahoa Parish
School System Personnel Department to ensure they meet educational and
certification requirements. Applicants deemed qualified are evaluated by an
interview committee. The superintendent then recommends an applicant.
Until the diversity goal is met, the procedure requires that if any of the
qualified applicants are black, the black applicant should be recommended for
the position.
      A court-appointed Court Compliance Officer (“CCO”) is responsible for
ensuring compliance with the court’s desegregation orders, including Order
866. The CCO receives a list of the name and race of each qualified applicant.


      1   See generally Moore v. Tangipahoa Parish Sch. Bd., 304 F. Supp. 244 (E.D. La. 1969).
                                               2
     Case: 18-30131       Document: 00514937912         Page: 3    Date Filed: 05/01/2019



                                      No. 18-30131
If the superintendent chooses not to recommend a black applicant because the
committee believes there is a more qualified applicant of a different race, then
the superintendent must submit written reasons to the CCO and the Chief
Desegregation Implementation Officer (“CDIO”). The CCO must notify the
superintendent if there are any objections from black applicants or the original
plaintiffs regarding the position or if further investigation is needed regarding
the hire for the position.
       In 2016, Kim Notariano, a white woman, applied to be the Tangipahoa
Parish School System’s Director of Transportation—a position that is subject
to Order 866’s hiring procedures. Notariano was not selected for the position
(for the second time); rather, the interviewing committee and the
superintendent recommended a black male applicant for the Director of
Transportation position. On December 3, 2017, Notariano emailed a grievance
to the CCO, requesting an emergency investigation. 2 Notariano alleged that
(1) the black male applicant was unqualified and that she was a more qualified
applicant; and (2) that she was not selected for the position because the Board
retaliated against her due to her prior complaints and/or discriminated against
her on the basis of gender. 3 The focus of Notariano’s grievance is TPSB’s
alleged noncompliance with Order 866.
       On December 5, 2017, the CCO issued a recommendation regarding
Notariano’s complaint. The CCO concluded that the TPSB acted in compliance
with the hiring order. He noted that an interview committee, which included
the CDIO, interviewed Notariano and other qualified applicants and



       2 According to the CCO, this was Notariano’s third complaint.
       3 Notariano makes intermittent and unrelated complaints regarding the district’s
interim hiring practices. Class Counsel raised concerns about interim hiring and vacant staff
positions, which was investigated by the CCO and discussed in the CCO’s March 26, 2018
interim report. In response, the district court ordered the development of a framework to
govern the Board’s future use of interim appointments.
                                             3
    Case: 18-30131    Document: 00514937912     Page: 4   Date Filed: 05/01/2019



                                 No. 18-30131
unanimously recommended a qualified black applicant to the superintendent.
The superintendent recommended the same qualified black applicant to the
TPSB Personnel Committee. Further, citing Moore v. Tangipahoa Parish Sch.
Bd., 625 F.2d 33 (5th Cir. 1980) (“Moore II”), the CCO concluded that Notariano
did not have standing to file a complaint of “lack of compliance by TPSB
regarding any individual employment action involving her.” However, the CCO
recognized that “to the extent that [Notariano’s] complaint is interpreted to
raise systemic issues involving compliance with the hiring procedures” set
forth in Order 866, he and the CDIO “remain engaged in an investigation of
these and other issues.”
      On December 29, 2017, the original plaintiffs, representatives of the
class of black students attending public schools in Tangipahoa Parish, filed an
objection to the CCO’s recommendation in district court, reasserting
Notariano’s allegations that the black applicant was not qualified, criticizing
the applicant selection process, and claiming that the CCO misinterpreted the
Moore II case. On January 2, 2018, plaintiffs filed a Motion for Evidentiary
Hearing and Further Relief relative to the objection, including a request for an
injunction to require the Board to hire Notariano.
      On January 9, 2018, the district court issued an order overruling
plaintiffs’ objection and affirming the CCO’s recommendation. Applying de
novo review, the district court agreed with the CCO’s conclusion that
Notariano lacked standing because her allegations were based on retaliation
of past complaints and gender discrimination—allegations that “do not involve
the constitutional issues addressed by the Court’s [desegregation] staff hiring
orders.” The district court dismissed plaintiffs’ motion for an evidentiary
hearing as moot. Plaintiffs timely appealed.




                                       4
    Case: 18-30131    Document: 00514937912     Page: 5   Date Filed: 05/01/2019



                                 No. 18-30131
                            STANDARD OF REVIEW
      “In desegregation cases, the objective is ‘to eliminate from the public
schools all vestiges of state-imposed segregation.’” Cowan v. Cleveland Sch.
Dist., 748 F.3d 233, 238 (5th Cir. 2014) (quoting Swann v. Charlotte-
Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971)). A district court has the
equitable power to fashion desegregation remedies consistent with the nature
of the constitutional violation. See Samnorwood Ind. Sch. Dist. v. Tex. Educ.
Agency, 533 F.3d 258, 267 (5th Cir. 2008). “We review the district court’s
implementation of desegregation remedies for abuse of discretion.” Cowan, 748
F.3d at 238 (citing Valley v. Rapides Parish Sch. Bd., 702 F.2d 1221, 1225 (5th
Cir. 1983)). While conclusions of law are reviewed de novo, findings of fact are
reviewed for clear error. Id. “[G]iven the unique factual circumstances present
in school desegregation cases, the district court’s factual findings are entitled
to great deference[,]. . . particularly [] when, as here, the district judge has
supervised the case for many years.” Anderson v. Sch. Bd. of Madison Cnty.,
517 F.3d 292, 296 (5th Cir. 2008) (internal quotation marks and citation
omitted).
      We review questions of standing de novo. Joffroin v. Tufaro, 606 F.3d
235, 238 (5th Cir. 2010). Because standing is a threshold jurisdictional
requirement, the party seeking to invoke federal jurisdiction has the burden of
establishing standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 559–61 (1992).
The question of standing “is whether the litigant is entitled to have the court
decide the merits of the dispute,” which “involves both constitutional
limitations on federal-court jurisdiction and prudential limitations on its
exercise.” Warth v. Seldin, 422 U.S. 490, 498 (1975). The “irreducible
constitutional minimum” of standing consists of three elements: (1) “the
plaintiff must have suffered an injury in fact,” (2) that is “fairly traceable to
the challenged action of the defendant,” and (3) that is likely to be redressed
                                       5
    Case: 18-30131    Document: 00514937912     Page: 6   Date Filed: 05/01/2019



                                 No. 18-30131
by a favorable judicial decision. Lujan, 504 U.S. at 560–61. In addition to the
constitutional requisites, prudential requirements may restrict standing. The
alleged injury must be within the “zone of interests” protected by the
constitutional guarantee invoked. Barlow v. Collins, 397 U.S. 159, 164 (1970).
                                 DISCUSSION
      The district court properly applied de novo review to the CCO’s
conclusion of law that Notariano lacked standing to bring a complaint under
Order 866. Fed. R. Civ. P. 53(f)(4). Similarly relying on Moore II, 625 F.2d 33,
the district court affirmed the CCO’s conclusion that Notariano lacked
standing based on its reasoning that Notariano’s “complaint alleges that the
school board is retaliating against her for past complaints and discriminating
on the basis of gender.” The district court held that “[s]uch allegations do not
create standing [in this desegregation case] because they do not involve the
constitutional interests addressed by the Court’s staff hiring orders.”
      In Moore II, a prior decision in this case, we held that Elizabeth Moulds,
a white female teacher in the Tangipahoa Parish School System, lacked
standing to bring a Fed. R. Civ. P. 71 motion to enforce a court-ordered hiring
procedure. 625 F.2d at 34–35. Like Moulds’ claim, the interest Notariano and
Plaintiffs seek to vindicate is not within the zone of interests protected by
desegregation Order 866—explicitly implemented to remedy segregation and
to achieve the parties’ racial diversity goal. Because Notariano is a non-party
who did not assert claims of racial discrimination as protected by Order 866,
she lacks standing to enforce compliance with the district court’s remedial
order. Moore II, 625 F.2d at 35; see also Reynolds v. Butts, 312 F.3d 1247, 1250
(11th Cir. 2002).
      Appellants’ allegations that Notariano was denied employment
opportunities in retaliation for her membership with the NAACP and her
public opposition of racial discrimination are unsubstantiated and do not
                                       6
     Case: 18-30131       Document: 00514937912          Page: 7     Date Filed: 05/01/2019



                                       No. 18-30131
appear in Notariano’s original grievance. 4 The focus of Notariano’s grievance
is allegations of discrimination based on her gender and alleged retaliation for
previously filing complaints when she was not promoted. As this court
recognized in Moore II, 625 F.2d at 35 n.1, and as explicitly stated in Order
866, the procedure set forth in Order 866 “in no way diminishes” or affects an
individual applicant’s right to seek redress in separate litigation for any
violations of her civil rights which may have occurred when she was denied
promotion—a remedy Notariano is currently pursuing in district court in Civil
Action No. 16-17832. See Notariano v. Tangipahoa Parish Sch. Bd., 266 F.
Supp. 3d 919 (E.D. La. 2017).
       Procedurally distinguishable from Moore II, however, the original
plaintiffs in the suit—rather than Notariano—filed the objection to the CCO’s
recommendation in district court as well as the instant appeal. However, the
underlying relief plaintiffs seek to address is based on Notariano’s claims, and
is intended to benefit Notariano, a non-party. This does not cure the
jurisdictional deficiency that Notariano’s interests are not within the zone of
interests of the challenged order.
       Moreover, assuming arguendo that Notariano’s grievance was properly
brought in this suit, there is no evidentiary support for Notariano’s claim that
the TPSB’s selection of the Director of Transportation was not in compliance
with Order 866. Further, neither Notariano or Plaintiffs have specifically
articulated the qualifications they assert that the black applicant lacked. At
best, Notariano’s grievance alleges that the black applicant had an engineering
degree when the position required a business degree. However, in the same


       4See e.g., Finley v. Johnson, 243 F.3d 215, 219 n. 3 (5th Cir. 2001) (“We have held that
issues raised for the first time in objections to the report of a magistrate judge are not
properly before the district judge.”) (citing United States v. Armstrong, 951 F.2d 626, 630 (5th
Cir. 1992)).

                                               7
    Case: 18-30131     Document: 00514937912     Page: 8   Date Filed: 05/01/2019



                                  No. 18-30131
email, she bewilderingly refers to the applicant as a “business major.” Again,
without providing specific allegations, Notariano repeatedly refers to the black
applicant as “unqualified” and states that the applicant does not possess the
qualifications in the job description.
      To the contrary, the CCO found that the procedure required by Order
866 was followed. The CCO concluded, “from the materials presented, it
appears that TPSB has, thus far, acted in compliance with the applicable
Order(s) central to Staff Hiring, to wit, the interview committee recommended
to the Superintendent a qualified black applicant for the position of Director of
Transportation; Superintendent Kolwe, in turn, recommended that applicant
to TPSB.” Plaintiffs’ assertion that the TPSB Personnel Committee tabled
consideration of the black applicant, questioning his qualifications, further
evidences TPSB’s good faith compliance with the court’s Order 866.
      Order 866 supports the TPSB’s position, so long as the evidence shows
racial diversity goals are not met. Plaintiffs do not allege that the 40-60
diversity goal had been met at the time Notariano applied to be the Director of
Transportation.
      We also reject Plaintiffs’ challenge to the district court’s denial of an
evidentiary hearing. Federal Rule of Civil Procedure 53 governs the district
court’s review of the CCO’s recommendation. See Moore v. Tangipahoa Parish
Sch. Bd., 843 F.3d 198, 202 (5th Cir. 2016). A court is not required to hold an
evidentiary hearing prior to accepting the CCO’s recommendation, rather the
court is only required to give the parties “an opportunity to be heard.” See Fed.
R. Civ. P. 53(f)(1). Prior to making its ruling, the district court considered the
Plaintiffs’ objection to the CCO’s recommendation as well as Plaintiffs’ motion
for evidentiary hearing and further relief. Thus, it was not an abuse of
discretion for the district court to deny an evidentiary hearing.


                                         8
     Case: 18-30131      Document: 00514937912        Page: 9     Date Filed: 05/01/2019



                                     No. 18-30131
       AFFIRMED. 5




       5Appellee filed a motion to strike portions of Appellants’ reply brief. We deny that
request as unnecessary in light of this opinion affirming the district court.
                                            9
