     Case: 14-31010   Document: 00513266028     Page: 1   Date Filed: 11/10/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 14-31010                   United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
OLESS BRUMFIELD; ET AL,                                        November 10, 2015
                                                                  Lyle W. Cayce
                        Plaintiffs                                     Clerk

UNITED STATES OF AMERICA,

                        Intervenor - Appellee

v.

LOUISIANA STATE BOARD OF EDUCATION,

                        Defendant - Appellee

v.

MITZI DILLON; TITUS DILLON; MICHAEL LEMANE; LAKISHA
FUSELIER; MARY EDLER; LOUISIANA BLACK ALLIANCE FOR
EDUCATIONAL OPTIONS,

                        Movants - Appellants


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


Before JONES, SMITH, and COSTA, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      The Department of Justice (“DOJ”) filed a motion for further relief in this
40-year-old case in order to gain oversight and some level of control over
Louisiana’s school voucher program.         The program provides dynamic
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educational opportunities in the form of scholarships for thousands of
students—85% of whom were African American in 2013—to attend better
public and private schools. The district court granted the DOJ’s motion for
further relief and thus mandated annual reporting requirements for
Louisiana’s school voucher program. Concerned by this interference with the
voucher program, parents of African-American students and the Louisiana
Black Alliance for Educational Options (“Appellants”) moved to vacate the
district court’s order under Federal Rules of Civil Procedure 59(e), 60(b)(4), and
60(b)(5).   The district court denied the motion.      We hold that the order
concerning the voucher program is beyond the scope of the district court’s
continuing jurisdiction in this case and is therefore void for lack of subject
matter jurisdiction. The district court should have granted the Rule 60(b)(4)
motion. The order is reversed and the injunction is therefore dissolved.
                                        I
      Given that the Department of Justice challenged Louisiana’s voucher
program through a forty-year-old lawsuit, it is not surprising that this case has
a lengthy and complicated history.
                                        A
      Before 1969, Louisiana operated “dual racially segregated systems of
pupil assignment.” Brumfield v. Dodd, 405 F. Supp. 338, 342 (E.D. La. 1975).
Any African-American students attending formerly all-white schools “did so
under the exercise of ‘freedom of choice’ options,” rather than any non-
discriminatory assignment practice. Id. Between 1969 and 1970, almost all
school boards were ordered by various federal district courts to begin assigning
students on a race-neutral basis. Id. A significant increase in private school
attendance coincided with these court orders. Id. The Louisiana State Board
of Education (now the Louisiana Department of Education) was empowered by


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the state legislature to assist these private schools by providing textbooks,
classroom materials, and transportation. Id.
         In 1971, a group of African-American families commenced this Brumfield
lawsuit in federal court, and the United States intervened in the lawsuit
shortly after the filing. Id. at 340. In 1975, a three-judge district court panel
held that Louisiana’s practice of subsidizing racially discriminatory private
schools violated the Equal Protection Clause of the Fourteenth Amendment.
Id. at 348. In an order attached to the findings of fact and conclusions of law,
the three-judge panel ordered the state to take four actions:
         • Cease “distributing or otherwise making available textbooks,
           library books, transportation, school supplies, equipment, and
           any other type of assistance, or funds for such assistance, to any
           racially discriminatory private school or to any racially
           segregated private school;”

         • Implement a process for private schools to be certified as non-
           discriminatory and thus be eligible for assistance from the
           state;

         • Create an accounting of all assistance provided to racially
           discriminatory private schools since 1968; and

         • Repossess all textbooks and classroom materials that had been
           given to discriminatory private schools.

The court retained continuing jurisdiction with regard to the issues in the
order.
         The state operated under the 1975 injunction for a decade before the
United States and Louisiana agreed in 1985 to refine through a consent decree
the certification process for assistance-eligible private schools. The consent
decree required the state to provide the DOJ with copies of all initial
certification applications and all annual compliance reports until 1988, copies
of all complaints of racial discrimination by private schools applying for

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certification for as long as the consent decree exists, and a list by category of
all the funds provided to each private school for as long as the consent decree
exists.   This certification regime has come to be known as Brumfield
certification.
                                         B
      In 2012, the Louisiana legislature passed the Student Scholarships for
Educational Excellence Act. La. Rev. Stat. Ann §§ 17:4011–4025. The voucher
program provides scholarships to attend public and Brumfield-certified private
schools for students whose family income is below 250 percent of the federal
poverty line and who are entering kindergarten or previously attended a school
receiving a grade of “C” or lower, with preference for students in “D” and “F”
schools. Id. at § 17:4013. Applicants to the program list their top five schools
in order of preference. The eligible applications are submitted to a third-party
vendor, OneApp, that runs a lottery algorithm on the applicant pool. If the
highest ranked school on an applicant’s list has available seats, the applicant
will be awarded a scholarship to that school. If there are fewer seats than
applicants to a particular school, the lottery algorithm optimally matches the
students with schools, taking into account their preferences.          Results are
adjusted based on a few statutory preferences, such as having a sibling in a
particular school. Id. at § 17:4015(3)(b). Applicants are then informed of their
award and given an opportunity to accept or reject it. This lottery process is
performed three times a year. The amount of the scholarship is capped at the
average per-pupil spending for the public school district in which the applicant
currently resides. Id. at § 17:4016(A). If the applicant is offered a slot to attend
a private school, and that private school’s tuition is less than the per-pupil
spending of the applicant’s current school, then the amount of the scholarship
will be reduced to the amount of the private school tuition. Id.


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      In 2012–2013, Louisiana received more than 10,000 applications and
awarded 4,900 scholarships. More than 90% of the recipients were minorities.
The following year, the state awarded roughly 6,800 scholarships, 85% of which
went to African-Americans.
                                      C
      The DOJ’s scrutiny of the voucher program began with a July 20, 2012
letter requesting information from the Louisiana Department of Education. In
the letter, the DOJ stated that it wanted to review the possible impact of the
voucher program on “Brumfield-approved schools participating in the
program, as well as the possible impact on the public schools and/or public
school systems” operating under court orders in other cases. To that end, the
DOJ requested not only information and documents related to the mechanics
of the program but also the name, address, grades, race, and public school
history of every student receiving vouchers and every student who had been
offered but declined a voucher. Louisiana responded by answering some of the
questions, but maintained that the “additional [unanswered] questions appear
to be unrelated to Brumfield v. Dodd approval.”
      Rather than file a new lawsuit, the DOJ moved to compel discovery
under this case in order to get the information it sought about the voucher
program. The magistrate judge granted the motion to compel discovery, but
specified that the information could only be used in the present case and only
by the Civil Rights Division of the DOJ.
      The DOJ subsequently moved under Federal Rule of Civil Procedure
59(e) to alter the magistrate judge’s order to allow the requested information
to be shared within the DOJ and to be used in the various separate school




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desegregation cases still pending in many Louisiana parishes. 1 The magistrate
judge granted the motion to amend.
      In August 2013, the DOJ filed a motion for further relief. The DOJ
requested an order pursuant to the 1985 consent decree enjoining Louisiana
from awarding any school vouchers to students who currently attend public
school districts subject to ongoing desegregation orders. Up to this point,
however, the orders in this case dealt only with the proper steps required for
the state to provide money and assistance to non-discriminatory private
schools. The Brumfield case never involved any desegregation issues in public
schools. The DOJ alleged no violation of the consent decree or any other
constitutional violation relating to the funding of private schools in this case.
Instead, the DOJ argued that a further injunction was needed in this case
because the state had failed to “seek the approval of the appropriate federal
court prior to awarding the vouchers to students” attending public schools that
remained subject to desegregation orders in other cases.
      A telephone conference was held on September 18, 2013, to discuss the
DOJ’s pending motion for further relief. Following the conference, the district
court entered an order setting a hearing in November and requiring the parties
to brief two issues:
            (1) Does the desegregation order issued in Brumfield v.
      Dodd, 405 F. Supp. 338 (E.D. La. 1975) apply to the State of
      Louisiana’s Student Scholarships for Educational Excellence
      Program (“Voucher Program”) so as to require the State to obtain
      authorization from the Court prior to implementation? (2) If the
      desegregation order applies to the Program, is there any need to
      amend existing orders to ensure a process of review of the Voucher
      Program or similar ones in the future?




      1 Many, or most, of such cases originated in the 1960s and 1970s, but they have never
been dismissed.
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The court also required Louisiana’s briefing to include “an analysis of the
voucher awards for the 2013–2014 school year respecting impact on school
desegregation in each school district presently under a federal desegregation
order.”
      Louisiana hired an expert to produce reports on the voucher program’s
impact for the 2012–2013 and 2013–2014 school years. The expert, Christine
Rossell, is a professor of political science at Boston University who has 26
years’ experience designing and analyzing school desegregation plans. For
both school years facing scrutiny, she found that the program “had no negative
effect on school desegregation in the 34 school districts under a desegregation
court order.” The DOJ has produced no evidence to the contrary.
      Five days after the September 18 order, the DOJ filed a supplement to
its original motion for further relief. Without withdrawing its original motion
for a permanent injunction to stop the program, the DOJ rephrased its goals
as seeking an annual process that would allow the federal government to
review Louisiana’s voucher awards in perpetuity.
      On November 22, 2013, the district court held a hearing on the two
questions it posed in the September 18 order: (1) do the orders in the Brumfield
case apply to the voucher program, thus requiring court approval of the
program; and (2) is there a need to amend the orders? At the hearing, the DOJ
conceded that it had no objections to the existing Brumfield certification
process for private schools and that Louisiana had complied with that
certification process and the consent decree.      The DOJ disclaimed that
Louisiana had been funding discriminatory private schools. Instead, the DOJ
explained, its ongoing goal is “to determine whether or not assignments to
those [private] schools are impeding desegregation in public schools that those
[voucher] students might have been assigned to.” To meet that goal, the DOJ
requested a second certification process essentially to pre-approve voucher
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awards. Rather than replace it, the proposed process would run parallel to the
existing Brumfield certification process for private schools receiving aid.
      The district court issued an oral ruling at the November hearing,
ultimately deciding that it had jurisdiction and that some modification to the
existing thirty-year-old order would be necessary. The district court explained
its ruling on jurisdiction in two sentences. First, the court stated that the
voucher program fell under the existing orders because “this Court has an
obligation, as well as all parties on both sides have an obligation, to take
reasonable steps in the process whereby the voucher program is not being used
to promote segregation; and, in that regards [sic], the Constitution mandates
it, this case mandates it, so it does apply.” The court added: “If the voucher
system is being used to assign children to segregated school systems in the
private arena, that’s in violation of the consent decree and the injunctions
here.” The court so reasoned in spite of the fact that the DOJ had already
conceded that there had been no Brumfield consent decree violation here, and
that the private schools themselves are not “segregated.”       The court then
assumed that resolving the jurisdictional issue also resolved whether a
modification was proper. Once the court had ruled that a modification would
be forthcoming, it required both parties to submit proposals.
      On April 8, 2014, the district court entered an order creating a process
for continuing federal oversight of the voucher program to operate alongside
the existing private school certification process. Beyond the word “order,” the
April Order contains no label or helpful phrases to indicate whether it is a
modification to the 1975 order, a modification to the 1985 consent decree, or an
entirely new injunction. The document is written in a similar format and
structure to the previous orders: the district court lays out a series of annual
deadlines for each step of the voucher award process.           First, the order
establishes that the outlined process will apply to “the 2014-2015 school year,
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and for all future years….” The process requires Louisiana to report racial
data for each public school in the state, as well as state test scores for each
public school. For every applicant to the voucher program, Louisiana must
provide the DOJ with the following information: name, ID number, address,
zoned school district, previous public school, grade level, race, whether the
current school is participating in the scholarship program, the applicant’s
school preference list, whether the student was deemed eligible to participate
in the program, reasons for ineligibility, reasons for preferences in award of
scholarship, and the name of the school for which Louisiana plans to offer a
scholarship. The applicant information must be provided to the DOJ for review
ten days before the third-party vendor, OneApp, plans on notifying the
applicants of their awards to allow for what the DOJ envisioned as a give-and
take-process for voucher awards. Finally, the order makes clear that any
information provided under the orders of this case may be used in any of the
school desegregation cases in Louisiana and may be shared with other
employees of the DOJ beyond those of the Civil Rights Division.
                                      D
      On September 30, 2013, after the DOJ filed a motion for further relief,
the parents of African-American students and the Louisiana Black Alliance for
Educational Option—appellants here—filed a motion to intervene as of right,
which the DOJ opposed. Fed. R. Civ. P. 24(a). The district court denied the
motion for intervention, asserting that the intervenors lacked an interest in
the litigation.   The intervenors appealed the denial to this court, which
reversed the district court on April 10, 2014. Brumfield v. Dodd (Brumfield I),
749 F.3d 339 (5th Cir. 2014). This court did not find credible the DOJ’s claim
that the supplement to its motion for further relief abandoned its pursuit of a
permanent injunction, because the supplement still argued that the state could
not operate the voucher program until the court approves it.       Id. at 342.
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Additionally, this court recognized that even though the DOJ claimed no
interest in halting the program, a modification of the 1985 decree requiring
Louisiana to get court approval meant that “the [federal] government will have
the ability to attempt to adjust some element of the scholarship program—
either by changing which students receive the aid or by changing the schools
in which they are placed—if not to urge that the program be killed entirely.”
Id. at 343. This court held that the parents’ interests met the requirements
for intervention. Id.
      Because of the district court’s erroneous denial of their motion for
intervention, the intervenors were unable to participate in important court
proceedings. Consequently, they lost the right to participate in the November
hearing that determined whether the court had jurisdiction and whether the
prior case orders needed to be modified. The intervenors were also unable to
participate in the oversight plan suggestion process.
      The intervenors finally joined as parties a few days after the district
court entered the April 8, 2014 order creating a new oversight process for the
voucher program. The intervenors could not directly appeal the order created
while they were excluded as parties, but they moved to vacate the order by
arguing that the judgment was either void under Rule 60(b)(4) for lack of
jurisdiction or should be vacated under Rule 60(b)(5) due to changed
circumstances. Additionally, the intervenors moved to alter or amend the
judgment under Rule 59(e). The motions were denied. The district court stated
that it had adequately addressed its jurisdiction in the November oral ruling
and did not elaborate further. As for the 60(b)(5) motion, the district court held
that the cited law was not helpful to intervenors, because the cases were
distinguishable from and preceded the April 8 order. The 59(e) motion was
rejected as duplicative of the arguments presented under Rule 60(b).


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       The Intervenors have appealed the denial of their motion to vacate the
April 8 order that established an ongoing oversight process for the voucher
program.
                                              II
       This court’s review of intervenor’s Rule 60(b)(4) motion is de novo.
Jackson v. FIE Corp., 302 F.3d 515, 521–22 (5th Cir. 2002). The rule states
that a “court may relieve a party or its legal representative from a final
judgment, order, or proceeding for the following reasons: . . . (4) if the judgment
is void.” Fed. R. Civ. P. 60(b)(4) “Rule 60(b)(4) motions leave no margin for
consideration of the district court’s discretion as the judgments themselves are
by definition either legal nullities or not.” Carter v. Fenner, 136 F.3d 1000,
1005 (5th Cir. 1998).
       Unlike the 60(b)(4) motion, Rule 60(b)(5) and Rule 59(e) motions “are
directed to the sound discretion of the district court, and its denial of relief
upon such motion will be set aside on appeal only for abuse of that discretion.”
Seven Elves v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981). 2
                                              III
       The DOJ initially contends that this court lacks appellate jurisdiction
because the oversight regime created by the district court is only a “discovery
order” that did not continue, modify, or refuse to dissolve an injunction. 3
28 U.S.C. § 1292(a)(1). We disagree. The oversight regime is clearly not a mere



       2 Because we decide this case by applying Rule 60(b)(4), we express no view on the
applicability of Rule 59(e) or 60(b)(5). Obviously, however, had the district court awaited this
court's decision on intervention in Brumfield I, this would be a direct appeal rather than one
requesting post-judgment relief.

       3 Alternatively, the DOJ argues that even if the oversight regime prescribes an
injunction, the denial of a motion to vacate the injunction is still not appealable under
28 U.S.C. § 1292(a)(1) because the injunction pertained only to the pending proceedings and
was a step in the normal pretrial process.
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discovery order, and the DOJ’s position is completely at odds with the facts of
the proceedings in the district court. Because the April 8, 2014 order is an
injunction, the district court’s denial of the 60(b)(4) motion amounts to a
refusal to dissolve an injunction, making the denial appealable under this
court’s precedent.
      Even if an order is not a final judgment within the meaning of 28 U.S.C.
§ 1291, the court of appeals has jurisdiction under 28 U.S.C. § 1292(a)(1),
which “gives this Court jurisdiction over interlocutory orders ‘granting,
continuing, modifying, refusing, or dissolving injunctions.’” Shanks v. City of
Dallas, Tex., 752 F.2d 1092, 1095 (5th Cir. 1985).
      Because the district court did not carefully label or describe the April 8
order, there is some confusion as to whether it is a modification of the 1975
injunction or the 1985 consent decree, or an entirely new injunction. The
document is labeled as an “ORDER,” and the paragraph that precedes the
monitoring    regime    states   only   that   the   court   has   reviewed    the
recommendations submitted by both parties. The DOJ seizes on the district
court’s thumbnail introduction to argue that the April Order governs no more
than discovery because it relates to the sharing of information.
      The content of the April Order makes clear that it is not for discovery.
The 1975 and 1985 certification processes also mandate a sharing of
information, but all parties accept that the Brumfield certification regime is
an injunction. The April Order creates a new and different certification regime
for the voucher program that will be repeated annually and indefinitely.
Because this oversight process is exactly the relief sought by the DOJ’s motion
for further relief, it is unlikely to lead to further judicial proceedings as would
be expected of a discovery order.       This process is not, as the government
contends, like a pretrial information swap that is limited in scope and duration.
The new oversight regime requires the state to engage in a costly activity:
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compiling a long list of information pertaining to thousands of applicants and
thousands of students as they continue to benefit from the voucher program.
This is a burdensome, costly, and endless process.
      The DOJ’s previous actions also make clear that it never viewed its
motion for further relief as no more than a discovery order. After this case lay
dormant for decades, the DOJ revived it with a motion to compel discovery,
which the magistrate judge granted. After the DOJ received interrogatory
responses through the discovery request, the DOJ filed a motion for further
relief, not a second discovery motion, asking the court to enjoin the program.
Before the November hearing on the motion for further relief, the district court
ordered the parties to prepare briefing on whether there was “any need to
amend existing orders.”     (emphasis added).     During the November 2013
hearing, the DOJ stated that it wanted to review and approve potential
voucher awards in each application cycle before the state made final awards.
Referring to that arrangement, the DOJ explained, “that’s the modification to
the process [the prior consent decree and injunction] that we’re looking for.” It
is disingenuous for the DOJ now to argue that the motion for further relief was
a request for a discovery order and the oversight regime is only for discovery.
      Additionally, the district court repeatedly referred to the forthcoming
relief as a modification to the existing orders. During the November hearing,
the district court asked the parties how “a modification of the decree” would
work. After determining he had jurisdiction over the DOJ’s motion for further
relief, the court ordered the parties to submit proposed “modifications to the
consent decree . . . .” Thus, the court and the parties treated the April Order
not as discovery, but a further injunction.
      Since the April Order was an injunction, the denial of the motion to
vacate the April Order amounts to a refusal to dissolve an injunction under
28 U.S.C. § 1292(a)(1). This court addressed a similar scenario in Kerwit Med.
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Prods., Inc. v. N. & H. Instruments, Inc., 616 F.2d 833, 835–36 (5th Cir. 1980).
In Kerwit, a 1971 consent judgment resulted in an injunction against the
appellants. Id. at 835. In 1978, the appellants moved unsuccessfully under
Rule 60(b)(4) to vacate the judgment. Id. Appellees argued that denial of the
Rule 60(b) motion was premature because the court had not completely
disposed of the litigation. Id. This court, however, recognized that a denial of
a Rule 60(b) motion under such circumstances effectively “continue[s] or
refuse[s] to dissolve an injunction.” Id. at 836. Therefore, the denial itself was
appealable under 28 U.S.C. § 1292(a)(1). Id. As in Kerwit, the denial of the
intervenors’ motion to vacate here “refused to dissolve an injunction,” and the
court’s order is appealable.
                                        IV
      Turning to the merits of the appeal, Rule 60(b)(4) states that a “court
may relieve a party or its legal representative from a final judgment, order, or
proceeding for the following reasons: . . . (4) if the judgment is void.” Fed. R.
Civ. P. 60(b)(4). An order “is void only if the court that rendered it lacked
jurisdiction of the subject matter, or of the parties, or it acted in a manner
inconsistent with due process of law.” Williams v. New Orleans Pub. Serv.,
Inc., 728 F.2d 730, 735 (5th Cir. 1984). Other errors in an underlying order
will not afford grounds for relief under the narrow ambit of Rule 60(b)(4) as
they would if the order itself had been directly appealed. Carter v. Fenner,
136 F.3d 1000, 1005 (5th Cir. 1998).
      We conclude that the April Order is void for lack of subject matter
jurisdiction because the voucher program is outside the scope of the district
court’s continuing jurisdiction in this case.       Jurisdiction in an ongoing
institutional reform case “only goes so far as the correction of the constitutional
infirmity.” United States v. Texas, 158 F.3d 299, 311 (5th Cir. 1998). The
original 1975 decision held that the state violated the Equal Protection Clause
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                                       No. 14-31010
by providing public aid to discriminatory and segregated private schools.
Brumfield v. Dodd, 405 F. Supp. 338, 348 (E.D. La. 1975). In the 1975 order,
the district court retained continuing jurisdiction for the remedial purpose laid
out in the order, which was to prevent future state aid to discriminatory
private schools. For three reasons, the April 8 Order goes beyond correcting—
and indeed has nothing to do with—the violation originally litigated in this
case. First, the voucher program’s potential impact on desegregation orders
for public schools in separate federal desegregation cases is distinct from
eliminating public funding for discriminatory private schools. Second, the
voucher program aid is for students rather than private schools. Finally, even
if the voucher program aids private schools, it is not being given to
discriminatory private schools.            The district court’s order exceeded the
constitutional infirmity on which this case was predicated and is therefore
void.
                                              A
        The district court did not provide a detailed explanation for its ruling on
the issue of its jurisdiction. At the November 2013 hearing, the district court
orally held that “the voucher program would still be under the ambit” of the
original orders in this case.         The court only provided a few sentences of
explanation. In part, the court explained that “this Court has an obligation, as
well as all parties on both sides have an obligation, to take reasonable steps in
the process whereby the voucher program is not being used to promote
segregation; and, in that regards [sic], the Constitution mandates it, this case
mandates it, so it does apply.” 4          When the court denied the Intervenors’


        4The district court gave some indication as to how it viewed the scope of the present
case by asking the DOJ whether it was better to monitor the impact of the desegregation
orders in the parish cases “in this overall case; or is it more effective to do it in the
individualized case?” This reveals a misunderstanding of the issue in this case. The present
case is not the “overall” statewide version of the parish desegregation cases. The parish cases
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                                       No. 14-31010
Rule 60(b)(4) motion, it did not respond to their lack of jurisdiction argument
except to state that jurisdiction was “addressed at the November 22
hearing . . . .”
                                             B
       The correct analysis of the scope of the court’s continuing jurisdiction
begins by identifying the constitutional infirmity addressed by this case in
1975. United States v. Texas, 158 F.3d at 311. The original 1975 decision ruled
that “[b]ecause [the Louisiana statutes governing school funds] are
implemented by defendants so as to allow substantial state assistance to
racially segregated private schools, the statutes run afoul of the equal
protection clause.” Brumfield, 405 F. Supp. at 348. Based on this holding, the
court enjoined further state aid to discriminatory private schools and created
the Brumfield certification process to ensure that only non-discriminatory
private schools were eligible for state aid. The 1975 order and 1985 consent
decree require information about the private schools; those orders do not
concern public school districts, the desegregation of which the DOJ and federal
courts continue to monitor in separate cases. See, e.g., Moore v. Tangipahoa
Parish Sch. Bd., 507 F. App’x 389, 390 (5th Cir. 2013). The Brumfield orders
also do not prevent aid to non-discriminatory private schools. Consequently,
any order issued under the district court’s continuing jurisdiction over this case
had to be related to correcting the constitutional violation of providing state
aid to racially discriminatory private schools.




resulted in public schools desegregation orders; this case is not a desegregation case at all,
but solely dealt with ending unconstitutional funding of private schools.
       The court later added: “If the voucher system is being used to assign children to
segregated school systems in the private arena, that’s in violation of the consent decree and
the injunctions here.” This is factually incorrect. The DOJ has neither alleged that the
program assigned children to segregated schools nor that the consent decree had been
violated.
                                             16
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                                  No. 14-31010
      The DOJ’s concern that the voucher program may affect desegregation
in public schools covered by other court orders is simply unrelated to the
constitutional infirmity that was litigated and decided in this case. The DOJ
has not alleged that the state has violated the 1975 order or the consent decree,
that the state has found a way to comply with the 1975 order or the consent
decree while still giving aid to discriminatory private schools, or that providing
vouchers to students promotes discriminatory policies in private schools. The
only evidence before the trial court shows that there have been no negative
effects on the desegregation of Louisiana’s public schools. Instead, the DOJ
contends that the state’s voucher program might potentially frustrate the
desegregation of public school districts in other pending cases.        The DOJ
admits that this position amounts to a fishing expedition. Its concession,
moreover, that Louisiana public school desegregation has not been adversely
affected by the voucher program essentially acknowledges the legal and factual
disconnection of the Brumfield case from the parish cases.
      The state’s voucher program is also outside the scope of this case because
it provides aid to students rather than to private schools. First, the voucher
program allows students to state their preference for public or private schools
on their applications.   It is then the students’ choice to accept the state
scholarship so no money is given to a school, public or private, without the
approval of the students’ families.     Second, the scholarship pays for the
individual student’s education; it does not aid private school operations. That
is made clear by the fact that the scholarship is capped at the amount the state
would have spent on the child had the child attended a local public school. La.
Rev. Stat. § 17:4016. The scholarship covers the marginal cost of educating an
additional child.
      Although it involved the Establishment Clause, Zobrest v. Catalina
Foothills School Dist., 509 U.S. 1, 113 S. Ct. 2462 (1993), considered an almost
                                       17
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                                  No. 14-31010
identical issue: whether a statute that provided sign language interpreters for
deaf students in religious schools amounted to unconstitutional aid for
religious private schools. Id. at 12–13. The Court recognized that the effect of
the statute was not to subsidize private school functions but to assist disabled
children. Id. at 12. Similarly, the Louisiana program is not designed to aid
existing private schools. The money follows the child, whether to public or
private school. If the child chooses to remain at his or her current public school,
no money is given to the alternative voucher program school. This program is
hardly analogous to the public in-kind aid rendered to private schools in the
1970s, which subsidized the schools. Brumfield, 405 F. Supp. at 347. The
current Louisiana voucher program is best characterized as aid to poor
children rather than aid to private schools.        Therefore, it is outside the
jurisdiction of this case.
      Finally, even if the vouchers constituted aid to private schools, the
district court did not have jurisdiction over the program, because the aid did
not go to discriminatory private schools.     Aid to racially non-discriminatory
private schools is not subject to the court orders in this case. Because the DOJ
has conceded that the Brumfield certification process is working properly and
that all the private schools participating in the voucher program are Brumfield
certified, the April Order concerning the voucher program is not correcting the
constitutional infirmity—aid to racially discriminatory private schools—
because the infirmity is not even alleged to exist. On this basis as well, the
April Order exceeds the continuing jurisdiction of the district court.




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                                       No. 14-31010
                                             C.
       Our colleague takes issue with this decision for two reasons. 5                   His
thoughtful dissent merits a reply.
       Initially, the issue of Intervenors’ standing to appeal is, for good reason,
no longer challenged by the government or briefed by the parties. Although
jurisdictional, the Intervenors’ presence on appeal is settled by the law of the
case and the scope of the district court’s order. In Brumfield I, this court
rejected the government’s characterization of its “data request” as anything
other than a step on the road to enjoining the voucher program unless and
until the state receives “authorization from the court prior to implementation.”
749 F.3d at 342. Whether the government succeeds in its ultimate goal is not
the point.      Citing numerous prior cases, the court explained that the
Intervenors’ interests are indeed affected by ongoing district court proceedings,
and, “[t]he parents challenge the very premise that the Scholarship Program
is subject to any such proceedings.” Id. at 343. 6 The court also thoroughly



       5  The dissent also engages in editorial commentary about, on one hand, the
educational success of Louisiana’s school voucher program and on the other hand, the need
for continuing vigilance over public school desegregation. As these expressions of opinion are
irrelevant and the materials cited are far afield of the dissent, we do not respond.

       6To reiterate, DOJ has never withdrawn its motion to modify the 1985 consent decree.
This court responded:
       To be sure, the United States is claiming that, at the moment, it has no
       intention of halting the voucher program or depriving anyone of an existing
       scholarship. Yet, if a modification of the decree requiring court approval means
       anything, it signifies that the government will have the ability to attempt to
       adjust some element of the Scholarship Program—either by changing which
       students receive the aid or changing the schools in which they are placed—if
       not to urge that the program be killed entirely. The possibility is therefore real
       that if the parents are not able adequately to protect their interests, some
       students who otherwise would get vouchers might not get them or might not
       get to select a particular school they otherwise would choose. The parents need
       not wait to see whether that ultimately happens; they have already described
       an interest justifying intervention.
Brumfield I, 749 F.3d at 343-44.
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                                  No. 14-31010
explained why the Intervenors need only prove that their interests “may” be
impaired or impeded by the pending proceedings, not that they will be harmed.
Id. at 344.    “It would indeed be a questionable rule that would require
prospective intervenors to wait on the sidelines until after a court has already
decided enough issues contrary to their interests. The very purpose of
intervention is to allow interested parties to air their views so that a court may
consider them before making potentially adverse decisions.” Id. at 345. An
even more perverse rule would deny these Intervenors’ right to appeal now,
when they were erroneously prevented by the district court from airing their
views before it ruled against their interests as described in Brumfield I.
Finally, the district court order directly affects the Intervenors insofar as it
(1) requires the state to disclose to the federal government personal
information about each student who applied for a voucher, (2) affords DOJ a
pre-voucher award review of this information, and (3) compels yearly updated
disclosures.
      With more plausibility, the dissent contends that in allowing relief for
“void” judgments, Rule 60(b)(4) is limited to cases where the lower court lacked
jurisdiction of the subject matter or the parties. Short of such circumstances,
the dissent asserts, Rule 60(b)(4) relief is unavailing to the Intervenors. We
cordially disagree. This court’s case law is more nuanced. Williams, 728 F.2d
at 735, held that a judgment is void under Rule 60(b)(4) only if the court lacked
jurisdiction of the subject matter, or of the parties, “or it acted in a manner
inconsistent with due process of law.” In any event, the Supreme Court’s most
recent pronouncement concerning this rule did not mention these criteria.
United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270, 130 S. Ct. 1367,
1377 (2010). Instead, the Court stated:
      Although the term ‘void’ describes a result, rather than the
      conditions that render a judgment unenforceable, it suffices to say

                                       20
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                                      No. 14-31010
        that a void judgment is one so affected by a fundamental infirmity
        that the infirmity may be raised even after the judgment becomes
        final . . . . The list of such infirmities is exceedingly short,
        otherwise, Rule 60(b)(4)'s exception to finality would swallow the
        rule.
Id.
        The Court decided, however, that Espinosa presented no opportunity to
review lower courts’ assertions, construing Rule 60(b)(4), that a judgment is
void because of a jurisdictional defect only in the exceptional case “in which the
court that rendered judgment lacked even an ‘arguable basis’ for jurisdiction.”
Id. The Supreme Court, in sum, has not definitively interpreted this rule.
        The dissent relies on various cases, not one of which is remotely similar
to the instant case factually, temporally, or legally, 7 while it attempts to
distinguish the apposite precedent from this court and the Supreme Court. In
United States v. Texas, supra, this court applied the Supreme Court’s decisions
that have systematically confined federal courts’ desegregation jurisdiction to
remedial orders that do not exceed “the correction of the constitutional
infirmity.” 158 F.3d at 311. This court reiterated that, “[a]bsent any showing
that school authorities ‘have in some manner caused unconstitutional
segregation,’ the district court lacks any power to enjoin a change in school
boundaries.”     Id. at 309 (citing Pasadena City Bd. of Educ. v. Spangler,
427 U.S. 424, 434, 96 S. Ct. 2697, 2704 (1976) (quoting Swann v. City of
Charlotte-Mecklenburg, 402 U.S. 1, 28, 91 S. Ct. 1267, 1282 (1971))).
According to the dissent, these cases concern “remedies” rather than the courts’
absence of “subject matter jurisdiction.” Consequently, the courts could abuse



        7Turner Const. Co. v. United States, 645 F.3d 1377 (Fed. Cir. 2011) (bid protest
concerning government contract award); Callon Petroleum Co. v. Frontier Ins. Co.,
351 F.3d 204 (5th Cir. 2003) (performance on surety bond); In re Zale Corp., 62 F.3d 746 (5th
Cir. 1995) (applicability of settlement agreement to third parties to bankruptcy
reorganization); EEOC v. Safeway Stores, Inc., 611 F.2d 795 (10th Cir. 1979) (calculation of
seniority for employees in company bound by a consent decree).
                                             21
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                                         No. 14-31010
their “remedial” jurisdiction but they would not have lacked power to act.
There are two responses to this argument.
       First, the lower courts were held to lack “remedial” jurisdiction in these
school desegregation cases because no underlying constitutional violation had
been found which was related to or necessitated the particular remedy.
Without any predicate finding of a constitutional violation, the courts “lack
power” to implement orders concerning a state’s educational programs. Courts
no more have power to invoke remedies against public bodies without liability
judgments than they do to adjudicate controversies not fitting within under
federal jurisdictional standards. 8
       Second, the lack of remedial power is compounded in this case because
no federal constitutional violation has been alleged, litigated or adjudicated
concerning Louisiana’s voucher program. As we have noted, the DOJ concedes
it cannot even allege such a violation, and the only record evidence, including
that cited by the dissent, points in favor of the program’s constitutionality. At
least in United States v. Texas and other desegregation decisions of the
Supreme Court and this court, prior litigation had proven that public entities
ran segregated public schools; desegregation orders were tailored to remedy
the vestiges of segregation; and the courts’ subsequent orders pertained (even


       8   A string of cases in this circuit has followed the Supreme Court’s desegregation
rulings and reversed unauthorized orders that were claimed to spring from an old state-wide
Texas desegregation decree. See Samnorwood I.S.D. v. Texas Educ. Agency, 533 F.3d 258
(5th Cir. 2008) (court lacked authority to enforce desegregation decree against districts that
had never been sued); United States v. Texas (Hearne), 457 F.3d 472, 484 (5th Cir. 2006)
(court lacked authority under decree to prohibit student transfers without showing of
district's unconstitutional behavior); United States v. State of Texas (Goodrich), 158 F.3d 299,
309 (5th Cir. 1998) (court could not prevent detachment and annexation by school district
without showing that authorities caused segregation); United States v. Texas, 680 F.2d 356,
372 (5th Cir. 1982) (bilingual education mandate could not be imposed under statewide
decree without a finding of liability). The limit of federal courts’ remedial jurisdiction is plain
under these rulings. At what point does the imposition of novel “remedial orders” pursuant
to increasingly antique desegregation consent decrees, without predicate liability findings,
become not merely unauthorized, but abusive of federal courts’ power?
                                               22
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                                       No. 14-31010
if tenuously, given the passage of time) to the already-found violations. (Still,
the law confirms that additional “remedies” were beyond the courts’ power.)
       Treating these cases narrowly, the dissent contends that “the existence
of federal question jurisdiction in this section 1983 case that was filed more
than four decades ago should end our inquiry.” But what DOJ is doing here is
not “this section 1983 case” from forty years ago, nor is this dispute even
related to the forty-year-old case. The original lawsuit here concerned the
state’s subsidy to racially discriminatory private schools; public schools were
in no way involved nor did they participate. The court ordered the state to
cease such funding and certify the private schools as non-discriminatory in
order to obtain state aid. This remedy was tailored to the precise violations
found and, again, had nothing to do with desegregation of the public schools.
There is no dispute that the state has complied in good faith over the past
decades.
       Now, however, the DOJ seeks to “reopen” this dormant case in order to
(a) conduct an ongoing inquisition about the voucher program; (b) acquire
reams of data from the state about both the public schools and thousands of
private individuals who have signed up for the program; (c) ascertain the racial
impact of the program on public schools in many parishes that are subject to
separate court cases and desegregation decrees; and (d) maybe, someday assert
that the new voucher program unconstitutionally affects the public schools. 9
(It bears mention that DOJ agrees that the Brumfield certification process isn’t
related to and has nothing to do with the voucher program.)




       9The dissent acknowledges the fundamental difference between the voucher dispute
and the original case: “What the district court did was order that the State of Louisiana turn
over demographic information about the enrollment to the Department of Justice, which
wants to determine if the voucher program will have a negative effect on schools subject to
desegregation plans.”
                                             23
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                                 No. 14-31010
      A hypothetical explains why the court’s order in this case is void for lack
of jurisdiction. Suppose a consent decree were formulated to enjoin a state
from failing to provide adequate prisoner medical care required by the Eighth
Amendment. The state complies with the decree in good faith. Decades later,
a party tries to “reopen” the case, asserting that the state is now violating the
Eighth Amendment by allowing rats to run wild in the prisons. No one would
doubt that the federal court must dismiss the motion because it lacks
jurisdiction to decide matters unrelated to the scope of the original decree. If
the court had no power to decide a new controversy through the medium of an
old, unrelated decree, surely it has no power to order the state, under the guise
of the original decree and without any new finding of illegal activity, to begin
massive reporting on rat populations and control throughout the prison
system. The DOJ here is chasing rats.
      The court’s order, imposing a vast and intrusive reporting regime on the
State without any finding of unconstitutional conduct related to the Brumfield
litigation, much less the filing of a proper lawsuit, “was so affected by
fundamental infirmity” that the infirmity was properly raised after judgment,
Espinosa, 559 U.S. at 570, 130 S. Ct. at 1377, and the court acted without
jurisdiction and “in a manner inconsistent with due process of law.” Williams,
728 F.2d at 735.
                                   CONCLUSION
      DOJ’s attempt to shoehorn its regulation of the voucher program into an
entirely unrelated forty-year-old case represents more than ineffective
lawyering. Despite the district court’s contrary conclusion, it seems plain that
DOJ’s expressed concern—how the voucher program affects statewide public
schools racially—has nothing to do with the narrow issues considered in the
Brumfield litigation. DOJ’s bold strategy, if upheld, would circumvent the
ordinary litigation process in two ways. The reports it seeks do not fall under
                                       24
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                                   No. 14-31010
the auspices of discovery permitted by the Federal Rules of Civil Procedure,
which authorize the compelled production of information only after a complaint
alleges violations of law. Here, there was no complaint, hence no basis for DOJ
to intrude into the affairs of Louisiana and its disadvantaged student
population. American discovery follows the common law adversary process,
not the civil law’s inquisitorial process, yet DOJ seeks to be the inquisitor.
Even more disturbing, DOJ’s motion, as explained in the November 2013
hearing, essentially foretells its attempt—through pre-award “back and forth”
with the state on every single voucher—to regulate the program without any
legal judgment against the state. This court may not speculate why DOJ chose
to avoid the path of litigation to prove a violation and thereafter enforce a
remedy against the state and its school children. What is clear is that DOJ
chose an unauthorized means to accomplish the same result.
      The district court did not have jurisdiction over the subject matter of the
DOJ’s motion for further relief, which was outside the continuing jurisdiction
of the 1975 order and the 1985 consent decree. Therefore, the April Order is
void and the denial of the 60(b)(4) motion is reversed.
      For the foregoing reasons, the April 2014 order of the district court is
REVERSED,       the   injunctive    requirements     for     “further   relief”   are
DISSOLVED, and the case is remanded with instructions to DISMISS the
Motion for Further Relief.




                                       25
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                                  No. 14-31010


GREGG COSTA, Circuit Judge, dissenting:
      Louisiana, with post-Katrina New Orleans leading the way, has become
an important, and early studies show successful, 1 laboratory for education
reform. One of those reforms provides scholarships to low-income students to
enable them to attend better schools, the type of schools that most lawyers take
for granted that their children will attend.       Whether those students will
continue to receive those “dynamic educational opportunities” (Maj. Op. at 1–
2) is not at issue in this appeal. The ruling that the Intervenors challenge did
not prevent the students from receiving scholarships for the 2014–15 school
year or the current one. What the district court did was order that the State
of Louisiana turn over demographic information about enrollment to the
Department of Justice, which wants to determine if the voucher program will
have a negative effect on schools subject to desegregation plans. For two
reasons, that is not a decision that we should review given the procedural
posture in which this appeal arises.
      First, I have significant doubts that the Intervenors have standing to
bring this appeal.      This Court’s earlier decision recognizing that the
Intervenors have an interest in the case warranting intervention does not
automatically establish that they have suffered a sufficient injury from the
limited order being appealed to confer standing at this stage. See Diamond v.
Charles, 476 U.S. 54, 68 (1986) (“Diamond’s status as an intervenor below,
whether permissive or as or right, does not confer standing sufficient to keep
the case alive in the absence of the State on this Appeal.”); see also Rohm &
Hass Texas, Inc. v. Ortiz Bros. Insulation, Inc., 32 F.3d 205, 208 & n.12 (5th



      1  Douglas N. Harris, Good News for New Orleans: Early Evidence Shows Reforms
Lifting Student Achievement, 15 EDUCATION NEXT 8 (Fall 2015).
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                                   No. 14-31010


Cir. 1994) (“Merely because a party appears in the district court proceedings
does not mean that the party automatically has standing to appeal the
judgment rendered by that court.”). Certainly the Intervenors would have
standing to appeal a decision invalidating the voucher program. That would
implicate the substantial injury of losing an educational opportunity for one’s
child, which was the basis for allowing the intervention. Brumfield v. Dodd,
749 F.3d 339, 343–345 (5th Cir. 2014). But the district court has not taken
that step. At this point, it has deprived the students of nothing nor required
them or their parents to do anything. Summers v. Earth Island Inst., 555 U.S.
488, 493 (2009) (“The regulations under challenge here neither require nor
forbid any action on the part of respondents. . . . ‘[W]hen the plaintiff is not
himself the object of the government action or inaction he challenges, standing
is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.’”)
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992)). Only the
State of Louisiana, which has not appealed, is under an obligation to produce
the data. A third-party typically does not have standing to challenge an order
requiring another party to produce information when no confidential data
concerning the third party is at issue. There is no contention that is the case
here. So the case for standing rests on a long chain of events that perhaps
might lead one day to a ruling that would result in the injury of losing the
scholarships: 1) the data would have to provide some arguable basis for
concluding that the scholarship program is increasing segregation; 2) the
Department of Justice (which by this point would likely be part of a different
Administration) would have to seek to enjoin the scholarship program based
on this data; 3) the district court would have to grant the motion. On its face,
this many conditions entails a high degree of speculation. But the fact that the
available data indicates that 85% of the scholarships in 2013 went to African-
American students (Maj. Op. at 2) means it is extremely unlikely—indeed
                                     27
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                                       No. 14-31010


almost unfathomable—that release of the full data would ever lead to enjoining
the voucher program on the ground that it is resegregating Louisiana schools.
If nothing else, that court action is not “certainly impending.” Clapper v.
Amnesty Int’l USA, 133 S.Ct. 1138, 1150 (2013).
       Admittedly, however, the line between imminent and speculative
injuries can be a fuzzy one. See Summers, 555 U.S. at 565 n.2 (“[I[mminence
is concededly a somewhat elastic concept.”). More definite are the limitations
on our ability to provide relief from a “void” judgment pursuant to Federal Rule
of Civil Procedure 60(b)(4), which is the mechanism through which the
Intervenors sought to vacate the order requiring the State to share the
information. There are only “two circumstances in which a judgment may be
set aside under Rule 60(b)(4): 1) if the initial court lacked subject matter or
personal jurisdiction; and 2) if the district court acted in a manner inconsistent
with due process of law.” Callon Petroleum Co. v. Frontier Ins. Co., 351 F.3d
204, 208 (5th Cir. 2003). The majority opinion tries to fit the district court’s
ruling as fitting into the first category of jurisdictional defects. 2 But because a
court’s issuance of an injunction that exceeds its equitable powers does not
undermine the court’s subject matter jurisdiction, Rule 60(b)(4) is the second
bar to reaching the merits of this appeal.
       “Jurisdiction” is a term that can mean different things, usually related
to a court’s power or authority to do something. See United States v. Cotton,
535 U.S. 625, 630 (2002) (noting that a prior Supreme Court decision had relied
on an “elastic conception of jurisdiction” different from the more limited notion
of subject matter jurisdiction); see also BLACK’S LAW DICTIONARY (10th ed.



       2 The opinion does include a couple references to a lack of due process. Maj. Op. at 24.
The district court only issued its challenged order after providing the State with “notice [and]
an opportunity to be heard.” United States Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271
(2010) (describing the Rule 60(b)(4) due process standard).
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                                       No. 14-31010


2014), 981–83 (listing four definitions for “jurisdiction” and over three pages of
definitions for particular types of jurisdiction). But as the Supreme Court has
recently explained, only a “certain type of jurisdictional error” justifies the
“rare” act of Rule 60(b)(4) postjudgment relief. United Student Aid Funds, Inc.
v. Espinosa, 559 U.S. 260, 268 (2010). As already mentioned, both in this
circuit and others, those types of jurisdictional error are limited to when a court
“lacked jurisdiction of the subject matter, or of the parties.” 3 11 Charles Alan
Wright & Arthur Miller, FEDERAL PRACTICE AND PROCEDURE § 2862 (3d ed.);
see also 12 James Wm. Moore, MOORE’S FEDERAL PRACTICE § 60.44[1][a] (“A
judgment is valid whenever the court that renders it has jurisdiction over the
subject matter and the parties.            In other words, a judgment is void, and
therefore subject to relief under Rule 60(b)(4), ‘only in the rare instance where
a judgment is premised either on a certain type of jurisdictional error or on a
violation of due process that deprives a party of notice or the opportunity to be
heard.’”) (internal citation omitted). 4 We thus have recognized that even when
a court lacked authority, or one might colloquially say “jurisdiction,” to take a
certain action, Rule 60(b)(4) is not an avenue for relief.
       Callon Petroleum was a case brought in federal court to recover on a
bond. By the time the court entered judgment in favor of the plaintiff, a state


       3  And even when subject matter jurisdiction is at issue, “[o]nly when the jurisdictional
error is ‘egregious’ will courts treat the judgment as void.” Callon Petroleum, 351 F.3d at 208
(quoting United States v. Tittjung, 235 F.3d 330, 335 (7th Cir.2000)).
        4 Whether the “jurisdictional” errors subject to Rule 60(b)(4) correction are limited to
those involving defects in subject matter or personal jurisdiction appears to be the crux of the
panel’s disagreement. On this point, the majority opinion is correct that Espinosa did not
specifically refer to subject matter or personal jurisdiction when mentioning the “type of
jurisdictional error” correctable under Rule 60(b)(4). Notably, however, it cited with approval
these sections of the two leading federal procedure treatises that characterize those two types
of jurisdiction as the only ones that warrant Rule 60(b)(4) relief. Espinosa, 559 U.S. at 269.
More importantly, the lack of a more direct Supreme Court holding on this question is of no
moment when our own case law recognizes the limitation. See Callon Petroleum, 351 F.3d at
208.
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                                  No. 14-31010


court delinquency proceeding for the defendant had commenced, which
resulted in entry of an order that it was later argued prevented the federal
court from entering judgment. The federal court’s diversity jurisdiction was
enough to defeat the Rule 60(b)(4) motion even though we noted that Burford
abstention was probably appropriate given the state insolvency proceeding.
Callon Petroleum, 351 F.3d at 208–09.
      Just as the existence of diversity jurisdiction in Callon Petroleum was
enough to defeat the Rule 60(b)(4) motion, the existence of federal question
jurisdiction in this section 1983 case that was filed more than four decades ago
should end our inquiry. That is true even if the court here, as the majority
opinion concludes, went beyond its equitable powers in ordering the state to
produce the data. Courts in areas of the law ranging from bankruptcy to the
Tucker Act have long recognized that a court’s exceeding the scope of its
equitable powers does not mean it lacked subject matter jurisdiction. See, e.g.,
Gordon v. Washington, 295 U.S. 30, 36 (1935) (“Since the court had power to
act, it is necessary to consider the various objections urged to the decree only
in so far as they are addressed to the propriety of its action as a court of equity.
These objections were not foreclosed by the determination that the court had
jurisdiction”); Turner Const. Co. v. United States, 645 F.3d 1377, 1388 (Fed.
Cir. 2011) (finding an order that the Army reinstate a contract did not raise a
jurisdictional question because, while the appellant “frames this challenge as
a jurisdictional argument, it is actually a challenge of the scope of the Court of
Federal Claims’ equitable powers” and these “concepts are distinct”).           We
recognized as much in In re Zale Corp., 62 F.3d 746 (5th Cir. 1995), when we
offered the following explanation for why we first had to decide a difficult
question of subject matter jurisdiction “[b]efore we address[ed] whether the
bankruptcy court properly exercised § 105 power to issue the injunction”:


                                           30
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                                        No. 14-31010


       Subject matter jurisdiction and power are separate prerequisites to the
       court's capacity to act. Subject matter jurisdiction is the court's authority
       to entertain an action between the parties before it. Power under section
       105 is the scope and forms of relief the court may order in an action in
       which it has jurisdiction.

Id. at 751 (quoting In re Am. Hardwoods, Inc., 885 F.2d 621, 624 (9th Cir.
1989)).
       United States v. Texas, 158 F.3d 299, 311 (5th Cir. 1998), and the similar
cases on which the majority opinion relies to establish that the problems it
identifies with the court order are jurisdictional ones that implicate Rule
60(b)(4), is consistent with the line Zale draws. It says that “federal remedial
jurisdiction goes only so far as the correction of the constitutional infirmity.” 5
Id. at 311 (emphasis added). That statement relied on authority like Missouri
v. Jenkins 6 and Milliken v. Bradley, 7 which are taught in law school courses on
Remedies, but that say nothing about subject matter jurisdiction and thus are
not mentioned in Federal Courts.                Compare Douglas Laycock, MODERN
AMERICAN REMEDIES (2d ed. 1994) at 284–93, 300–309 (discussing Jenkins,
Milliken, and other cases addressing the scope of equitable power), with
Charles Alan Wright and John B. Oakley, FEDERAL COURTS: CASES AND
MATERIALS (10th ed. 1999) (not mentioning these cases). Indeed, the majority
opinion cites no case ever granting Rule 60(b)(4) relief based on a court’s
exceeding its equitable power. Nor any case finding more generally that an




       5  Further proof that United States v. Texas did not involve a problem of subject matter
jurisdiction (a term not mentioned in the opinion) is that we reversed the order rather than
vacated it. See U.S. v. Texas, 158 F.3d at 312. The latter is the proper resolution when
subject matter jurisdiction is lacking. See, e.g., Howery v. Allstate Ins. Co., 243 F.3d 912, 921
(5th Cir. 2001) (vacating and remanding with instructions to dismiss due to lack of subject
matter jurisdiction).
        6 491 U.S. 274 (1989).
        7 433 U.S. 267 (1977).

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overly broad injunction (or absence of authority to award some other remedy)
goes to a court’s subject matter jurisdiction.
      This absence of authority is telling and should be dispositive. If any
doubt remains, however, other situations in which courts have rejected Rule
60(b)(4) motions further demonstrate the inapplicability of the rule in this case.
The Tenth Circuit twice refused to grant Rule 60(b)(4) relief to vacate consent
decrees that may have been unlawful, concluding that those legal errors did
not undermine the court’s subject matter jurisdiction. Equal Employment
Opportunity Com’n v. Safeway Stores, Inc., 611 F.2d 795, 799–800 (10th Cir.
1979) (refusing to find consent decree void under Rule 60(b)(4) even though the
“grant of enhanced seniority rights to all post-decree transferees rather than
to all employees or to minority transferees only does not fulfill any legitimate
purpose of Title VII”) V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 226 (10th Cir.
1979) (“Even if the parties’ consent decree does technically run afoul of federal
patent law principles, the problem would be one of relief from an erroneous
judgment, not a void one. The district court had requisite jurisdiction over the
parties and over the subject matter.”). Safeway Stores explained the reasoning
this way:
      It is not the purpose of Rule 60(b) or the inherent powers of chancery to
      allow the modification of a consent decree merely because it reaches a
      result which could not have been forced on the parties through litigation.
      . . . The fact that a consent decree exceeds the law by prohibiting lawful
      conduct, or by granting an unauthorized remedy, does not render it void.
      Such efforts may be grounds for reversal on appeal of the judgment, but
      they are not grounds for collateral attack.

Safeway Stores, 611 F.2d at 799–800 (internal citations omitted).
      The Supreme Court’s recent Rule 60(b)(4) case, with bankruptcy again
being the subject matter, provides the final illustration of just how narrow the
Rule is. The Court explained that Rule 60(b)(4) relief was not warranted

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because the Bankruptcy Code “requirement that a bankruptcy court find
undue hardship before discharging a student loan debt is a precondition to
obtaining a discharge order, not a limitation on the bankruptcy court's
jurisdiction.”    Espinosa, 559 U.S. at 272. The relief the bankruptcy court
ordered—discharge of the student loan without a hardship finding—was thus
unlawful, but that did not render the judgment void. The same is true here,
even if the majority opinion is correct that the relief ordered by the district
court was unlawful.
       Espinosa also explains why it is important to preserve the limited
meaning of a “void judgment”:
       Although the term ‘void’ describes a result, rather than the conditions
       that render a judgment unenforceable, it suffices to say that a void
       judgment is one so affected by a fundamental infirmity that the infirmity
       may be raised even after the judgment becomes final. The list of such
       infirmities is exceedingly short; otherwise, Rule 60(b)(4)’s exception to
       finality would swallow the rule.

Id. at 270. 8 That interest in finality, along with the interest in restraint, is
particularly strong here. The students are receiving the scholarships, the
Department of Justice was getting the data it wanted, and the State did not
see the need to appeal with its program intact.
       The majority opinion’s “rats” hypothetical undoubtedly describes an
extreme abuse of judicial authority. But courts act outside the scope of their
authority all the time, sometimes outrageously so but more often as a result of
the difficulty and variety of the issues we face. It would likewise be a flagrant
violation of the law for a court to award a $100 million punitive damages award



       8 Expanding the reach of Rule 60(b)(4) makes even less sense in the context of an
injunction because Rule 60(b)(5) provides a mechanism for relief when an injunction in a
long-running institutional reform case like this one “is no longer equitable.” Fed. R. Civ. P.
60.
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against a municipality in a section 1983 case. See City of Newport v. Fact
Concerts, Inc., 453 U.S. 247 (1981) (holding that section 1983 does not permit
an award of punitive damages against a municipality). Because of the blatant
error, such an award would be readily correctable in the normal appellate
posture. A punitive damages award exceeding the court’s remedial power
would not, however, mean that the court lacked subject matter jurisdiction.
See Gil Ramirez Grp., L.L.C. v. Houston Indep. Sch. Dist., 786 F.3d 400, 408,
413 (5th Cir. 2015) (affirming a dismissal pursuant to Rule 12(b)(6) for failure
to state a claim, rather than pursuant to 12(b)(1) for lack of subject matter
jurisdiction, of a RICO claim seeking treble damages in light of City of
Newport). The same would be true for the rat court’s abuse of its remedial
power. That error, like all others including the unauthorized desegregation
orders the majority opinion cites, is correctable on direct appeal. But it is not
among the errors that can be asserted under the “rare” 60(b)(4) procedure.
Espinosa, 559 U.S. at 271.
      The majority opinion may well be correct that the Department of Justice
should have litigated this issue in the numerous school desegregation cases
still pending in Louisiana federal courts rather than this one that focused on
state aid to segregation academies. And the statistics showing that 85% of the
scholarship recipients are African-American indicate that not just its litigation
strategy, but also its concern about the potential effect of the voucher program
on desegregation may have proven misguided.                But vigilance about
retrenchment in the area of school desegregation is not. See Marguerite L.
Spencer and Rebecca Reno, The Benefits of Racial and Economic Integration
in Our Education System: Why This Matters for Our Democracy, Kirwan
Institute for the Study of Race and Ethnicity, The Ohio State University (Feb.
2009) at 13 (“The number of nearly all-minority schools (defined as a school
where fewer than 5% of the students are white) doubled between 1993–2006.
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… In 2005–2006, 56% of Hispanic students attended a school in which at least
half of the student population was Hispanic, and nearly 50% of black students
attended a majority black school.”). For the years of blood, sweat, and tears
that went into the efforts to achieve desegregation didn’t just help us finally
realize the promise of the Fourteenth Amendment. That work also resulted in
integrated schools—albeit too few and too short-lived—that provided
substantial gains for minority students. See, e.g., id. at 13 (“[D]esegregation
has been positively linked to increases in black student achievement levels,
generating gains on average of .57 of a grade year at the kindergarten level,
and on average of .3 of a grade year in student performance at the
elementary/secondary school level. . . . Some argue that since most school
reforms have little or no effect on improving students’ outcomes, the modest
impact that desegregation has on student achievement relative to these other
reforms is substantial.”); Rucker C. Johnson, Long-Run Impacts of School
Desegregation & School Quality on Adult Attainments, National Bureau of
Economic Research Working Paper 16664 (Jan. 2011) 35 (study of over 8,000
people born between 1945 and 1968, tracked through 2011, which concluded
that “school desegregation significantly increased educational attainment
among blacks exposed to desegregation during their school-age years, with
impacts found on the likelihood of graduating from high school, completed
years of schooling, attending college, graduating with a 4-year college degree,
and college quality”).
      In light of the standing and Rule 60(b)(4) obstacles to our review,
however, I would leave to another day—a day that is very unlikely to ever
arrive—the issues concerning the scope of the district court’s equitable power
to address concerns about desegregation in this proceeding.



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