                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                REVISED AUGUST 9, 2006                                 July 20, 2006
        IN THE UNITED STATES COURT OF APPEALS
                                                                 Charles R. Fulbruge III
                   FOR THE FIFTH CIRCUIT                                 Clerk




                          No. 05-41798



JENEVA FRAZAR, ET AL.,

                                       Plaintiffs,

LINDA FREW, as next friend of her minor child, Carla Frew;
CHARLOTTE GARVIN, as next friend of her minor children,
Johnny Martinez, Brooklyn Garvin and BreAnna Garvin;
SHANNON GARCIA, as next friend of her minor children,
Andrew Garcia, Marisha Garcia, Stephen Sanchez and Allison
Sanchez; MARIA AYALA, as next friend of her minor children,
Christopher Arizola, Leonard Jimenez and Joseph Veliz; MARY
FISHER, as next friend of her minor child, Tyrone T. Edwards; MARY
JANE GARZA, as next friend of her minor children, Hilary Garza
and Sarah Renea Garza,

                                       Plaintiffs-Appellees,


                              versus

RICHARD LADD, ET AL.,

                                       Defendants,

DAVID BALLARD, Texas State Medicaid Director; ALBERT
HAWKINS, State Commissioner of Health and Human Services;

                                1
      DR. EDUARDO SANCHEZ, Commissioner of Health; BRIDGETT
      COOK, employee of Texas Department of Health in official capacity,

                                               Defendants-Appellants.



               Appeal from the United States District Court for
                        the Eastern District of Texas
      _________________________________________________________

Before REAVLEY, SMITH and DENNIS, Circuit Judges.

REAVLEY, Circuit Judge:

      This is the latest chapter in the suit to improve Texas administration of the

Medicaid program to afford health care to the certified class of indigent children.1

The state officials filed this motion to terminate or modify the consent decree

entered in 1996. The district court denied the motion and we affirm.

                                          I.

      Following remand from this court, defendants moved pursuant to Federal

Rule of Civil Procedure 60(b)(5) to terminate the entire consent decree or, in the



      1
         The history of reported decisions begins with the district court’s first
decision, Frew v. Gilbert, 109 F. Supp. 2d 579 (E.D. Tex. 2000) (Frew I), and
moves to our first panel decision, Frazar v. Gilbert, 300 F.3d 530 (5th Cir. 2000)
(Frazar I), the Supreme Court’s decision, Frew v. Hawkins, 540 U.S. 431, 124 S.
Ct. 899, 157 L.Ed.2d 855 (2004) (Frew II), and our decision on remand from the
Supreme Court, Frazar v. Hawkins, 376 F.3d 444 (5th Cir. 2004) (Frazar II).

                                          2
alternative, to dissolve the consent decree as to all urban areas of Texas.2

Defendants argued that they were in compliance with federal Medicaid law,

therefore rendering the consent decree unnecessary, and its enforcement inequitable.

Defendants argued that the ends of the consent decree had been met (i.e.,

compliance with the federal law), and it was no longer equitable that the judgment

should have prospective application. In the alternative, defendants argued that they

established compliance with federal law in all urban areas of Texas and, thus, the

objects of the consent decree had been attained, and it should have no prospective

application, with respect to urban areas.

      Plaintiffs argued that defendants were not entitled to Rule 60(b)(5) relief

because: (1) compliance with federal law alone was insufficient to warrant

dissolution of the consent decree; (2) defendants were not in compliance with

federal law; (3) defendants had never attempted to comply, in good faith, with

certain provisions of the consent decree; and (4) the objects of the consent decree

had not been attained.

      Following an eight-day evidentiary hearing on the Rule 60(b)(5) motion, and


      2
         Frew v. Hawkins, 401 F. Supp. 2d 619, 623 (E.D. Tex. 2005) (Frew III).
Defendants define “urban areas” as the counties served by the Medicaid managed
care organizations that have entered into the Standardized Contract for Services
with the Texas Health and Human Services Commission. Id. at 631 n.19.

                                            3
consideration of post-hearing briefs, the district court issued a decision denying

defendants’ Rule 60(b)(5) motion in its entirety. The district court applied the legal

standard articulated by the Supreme Court in Rufo v. Inmates of the Suffolk County

Jail, 502 U.S. 367, 112 S. Ct. 748, 116 L.Ed.2d 867 (1992) and by this court in

Cooper v. Noble, 33 F.3d 540 (5th Cir. 1994). The dispositive holding of the

district court was to reject defendants’ overriding contention that the recent opinion

of the Supreme Court in Frew II requires termination of judicial oversight when the

state complies with federal law, whatever the terms of the consent decree may be.

                                             II.

         We have jurisdiction3 and review the denial of a Rule 60(b) motion for an

abuse of discretion.4 A district court’s ruling on a Rule 60(b) motion is entitled to

deference.5 We review de novo, however, any questions of law underlying the

district court’s decision.6



         3
       Rufo, 502 U.S. at 391, 112 S. Ct. at 764 (“a consent decree is a final
judgment”).
         4
             Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 997 (5th Cir.
2001).
         5
             Cooper, 33 F.3d at 543.
         6
        Ran-Nan, Inc. v. Gen. Accident Ins. Co. of Am., 252 F.3d 738, 739 (5th
Cir. 2001).

                                             4
                                           A.

      Defendants contend that the district court applied the incorrect legal standard

for consent decree modification in institutional reform cases and argue that the

district court failed to follow the Supreme Court’s admonishments in Frew II

regarding federalism, separation of powers, democratic accountability, and

deference to those state officials responsible for administering public institutions and

programs. The contention is that instead of following Frew II, the district court

placed too much importance on the Rufo test for consent decree modification.

      In Rufo, the Court noted that the standard for modification of consent decrees,

now set forth in Federal Rule of Civil Procedure 60(b),7 is a “flexible” one8 and a

party seeking modification of a consent decree “bears the burden of establishing that

a significant change in circumstances warrants revision of the decree.”9 That



      7
          Rule 60(b) provides, in relevant part:

      On motion and upon such terms as are just, the court may relieve a party
      or a party's legal representative from a final judgment, order, or proceeding
      for the following reasons: . . . (5) the judgment has been satisfied, released,
      or discharged, or a prior judgment upon which it is based has been
      reversed or otherwise vacated, or it is no longer equitable that the
      judgment should have prospective application. . . .
      8
          Rufo, 502 U.S. at 393, 112 S. Ct. at 765.
      9
          Id. at 383, 112 S. Ct. at 760.

                                            5
burden may be met “by showing either a significant change either in factual

conditions or in law.”10 Once a moving party meets this standard, a district court

must consider “whether the proposed modification is suitably tailored to the

changed circumstance.”11

      We have had one occasion to apply the standard set forth in Rufo. In Cooper,

we upheld a magistrate judge’s denial of the defendants’ Rule 60(b) motion in a

pre-Prison Litigation Reform Act case applying the Rufo Rule 60(b) standard.12 We

explained:

      When significant changes in factual conditions make a consent judgment
      unworkable, make compliance substantially more onerous, or make
      enforcement detrimental to the public interest, a court has the discretion
      to modify the judgment. However, the Supreme Court [in Rufo] never
      suggested that changed factual circumstances in and of themselves were
      sufficient grounds for relief from a judgment. In fact, the Court insisted
      that the petitioning party must “ma[k]e a reasonable effort to comply with
      the decree.” Thus, even if we take as true all the alleged changes in
      factual conditions, the county officials are far from meeting their burden
      under Rufo. The county officials must also: (1) show that those changes
      affect compliance with, or the workability or enforcement of, the final
      judgment, and (2) show that those changes occurred despite the county
      officials' reasonable efforts to comply with the judgment.13


      10
           Id. at 384, 112 S. Ct. at 760.
      11
           Id. at 383, 112 S. Ct. at 760.
      12
           33 F.3d at 545.
      13
           Id. at 544 (internal citations omitted).

                                              6
      The most recent pronouncement from the Supreme Court on the modification

of decrees occurred in this case. In Frew II, while in addition to holding that the

Eleventh Amendment does not act as a bar to an enforcement action to a consent

decree the initial entry of which was consistent with Ex parte Young, 209 U.S. 123,

28 S. Ct. 441 (1908), the Court dedicated Section III of its opinion to state officials

warning that enforcement of consent decrees can undermine the sovereign interest

and accountability of state governments.14

      The Court acknowledged that:

      [i]f not limited to reasonable and necessary implementations of federal
      law, remedies outlined in consent decrees involving state officeholders
      may improperly deprive future officials of their designated legislative and
      executive powers. They may also lead to federal court oversight of state
      programs for long periods of time even absent an ongoing violation of
      federal law.15

In such circumstances, the Court stated, the States are not without remedy:

             When a suit under Ex parte Young requires a detailed order to
      ensure compliance with a decree for prospective relief, and the decree in
      effect mandates the State, through its named officials, to administer a
      significant federal program, principles of federalism require that state
      officials with front-line responsibility for administering the program be
      given latitude and substantial discretion.
             The federal court must exercise its equitable powers to ensure that

      14
           Frew II, 540 U.S. at 441-42, 124 S. Ct. at 905-06.
      15
           Id. at 441, 124 S. Ct. at 905.

                                            7
      when the objects of the decree have been attained, responsibility for
      discharging the State’s obligations is returned promptly to the State and
      its officials. As public servants, the officials of the State must be
      presumed to have a high degree of competence in deciding how best to
      discharge their governmental responsibilities. A State, in the ordinary
      course, depends upon successor officials, both appointed and elected, to
      bring new insights and solutions to problems of allocating revenues and
      resources. The basic obligations of federal law may remain the same, but
      the precise manner of their discharge may not. If the State establishes
      reason to modify the decree, the court should make the necessary
      changes; where it has not done so, however, the decree should be
      enforced according to its terms.16

The Court cited two cases as examples of the application of Rule 60(b) to consent

decrees in the context of institutional reform litigation: Rufo, 502 U.S. 367, 112 S.

Ct. 748 and Philadelphia Welfare Rights Organization. v. Shapp, 602 F.2d 1114

(3d Cir 1979).17

      16
           Id. at 442, 124 S. Ct. at 906.
      17
            Id. at 441, 124 S. Ct. at 906. In Shapp, a pre-Rufo case, the district court
granted the defendants’ motion to modify an institutional reform consent decree in
light of changed circumstances that were beyond the defendants’ control and were
not contemplated by the court or the parties when the decree was entered. 602 F.2d
at 1119–21. The consent decree at issue in Shapp was entered as a result of
litigation over Pennsylvania's EPSDT program, and the defendants were seeking to
modify or vacate the decree based on (1) the exemplary performance of
Pennsylvania's program, and (2) inability to comply, after a good faith effort, with
certain terms of the decree. The district court modified the decree in three respects
after finding that the defendants had made a good faith effort at compliance, but
circumstances beyond the defendants' control and not contemplated by the court or
parties “put achievement of the [provisions' requirements] beyond reach.” Id. at
1120-21.


                                            8
      Defendants contend that in light of the principles expressed in Frew II, the

Supreme Court altered the standard that courts employ to modify a consent decree

arising from institutional reform litigation, and that Frew II marks a shift away from

Rufo’s changed-circumstances approach. They contend that Frew II adopted a more

flexible approach, one which places considerable weight upon democratic

accountability and federalism concerns. According to defendants, this alleged new

standard annunciated by the Court in Frew II requires the district court to promptly

return the State’s program to state officials when the objects of the decree have been

attained, and to do so here because the object of the consent decree is compliance

with the Medicaid Early Screening, Diagnosis and Training Program (EPSDT) and

they are in compliance with the EPSDT. In essence, defendants argue that Frew II

requires the district court to promptly return the State’s program to state officials if

there are no ongoing violations of federal law.

      We reject defendants’ argument that Frew II ushers in a new standard for

consent decree modification. While the Court in Frew II did underscore the

federalism mandates in institutional reform litigation, it did not alter the standard for

modification of consent decrees. Instead, it directed lower courts to Rufo and Shapp

as examples of the proper application of Rule 60(b)(5) to modification of

institutional reform consent decrees, neither of which discusses mere compliance

                                            9
with federal law as a reason for modifying the decree. Further, Frew II did not

mention federal law compliance as a factor in the Rule 60(b)(5) analysis.

      As the district court aptly stated:

      Dissolution based on mere compliance with the minimum requirements of
      federal law is, additionally, inequitable, because it would permit perpetual
      re-litigation of the merits of Plaintiffs’ claims. In choosing to voluntarily
      enter into the Consent Decree, Defendants waived the opportunity to
      litigate the merits of the claims in Plaintiffs’ Third Amended Complaint
      in exchange for negotiating the terms of the Consent Decree and avoiding
      the time, expense, and inevitable risk of litigation. See Cooper, 33 F.3d
      at 545. Through their argument that compliance with federal law
      necessarily warrants relief under Rule 60(b)(5), however, Defendants are
      seemingly attempting to re-litigate the claims underlying the Consent
      Decree. If the basis for a meritorious Rule 60(b) motion is that the claims
      underlying the consent decree are not meritorious, then parties to consent
      decrees would be permitted to file periodic Rule 60(b) motions asserting
      compliance with federal law and, in effect, continually re-litigate the
      underlying claims until a court determines the defendants are in
      compliance with federal law and the decree is dissolved. The party filing
      the Rule 60(b) motion would potentially be able to eliminate consent
      decree obligations, even if there is no attempted compliance with its
      legally enforceable terms, no showing that conformity to federal law
      makes compliance with the consent decree substantially more onerous or
      unworkable, and no showing that the requested relief is sufficiently
      tailored to the changed factual circumstances. See Rufo, 502 U.S. at
      384-91, 112 S. Ct. 748; Cooper, 33 F.3d at 545. It follows that the
      parties opposing dissolution would not enjoy the benefits for which they
      bargained or the judicially enforceable obligations upon which they relied
      in entering into the consent decree; and the parties seeking dissolution
      would paradoxically be entitled to equitable relief despite their inequitable
      behavior. A Rule 60(b) motion is not a vehicle by which Defendants may
      disregard the voluntary obligations contained in the Consent Decree,
      allow time to pass, and then litigate the underlying claims in hopes of


                                            10
      never actually complying with [] its terms.18

      If the Court wished the law to be that consent decrees must be dissolved if

defendants comply with federal law, it would have expressly stated so. It did not.

A rule of law based on a single factor (compliance with federal law) is the opposite

of the Court’s requirement of equitable flexibility.19 We hold that the district court

properly determined that the applicable legal standard in this case came from Rufo

and Cooper.

      The district court recognized Frew II’s admonishment that “when the objects

of the decree have been attained, the responsibility for discharging the State’s




      18
           Frew III, 401 F. Supp. 2d at 636.
      19
          Defendants read Frew II as adopting a standard similar to the Prison
Litigation Reform Act (PLRA) standard for terminating consent decrees. See 18
U.S.C. §§ 3626(a)(1)(A), (b)(3), (c)(1). With the PLRA, Congress sought to curtail
federal courts’ long-term involvement in prison reform and halt federal courts from
providing more than the constitutional minimum necessary to remedy federal rights
violations. H.R. REP. NO. 104-21, at 24 n.2 (1995); see also H.R. REP. NO. 104-
378, at 166 (1995) (“[The PLRA] amends 18 U.S.C. § 3626 to require that prison
condition remedies do not go beyond the measures necessary to remedy federal
rights violations. . . .”). But no such language can be found in Frew II. Further, we
note that the House has introduced the Federal Consent Decree Fairness Act. H.R.
1229, 109th Cong. (1st Sess. 2005). This Act would require, among others, that
“the burden of proof shall be on the party who originally filed the civil action to
demonstrate that the continued enforcement of a consent decree is necessary to
uphold a Federal right.” Id. at § 3. We leave it for Congress or the Supreme Court
to change the standard.

                                          11
obligations [must be] returned promptly to the State and its officials.”20 Defendants

argued that the only legitimate object of the consent decree was to ensure

compliance with federal law regarding the administration of the EPSDT program.

The district court rejected this argument and held that the compliance with federal

law is not the sole object of the consent decree.21 The consent decree itself does not

reference mere compliance with federal law as its object. Rather, it speaks to the

broader goals of enhancing recipients’ access to health care and improving the use

of health care services by Texas EPSDT recipients.22 The decree implements the

Medicaid statute “in a highly detailed way, requiring the state officials to take some

steps that the statute does not specifically require.”23 The district court held that

“[t]o interpret the sole object of the Consent Decree to ensure compliance with

something less than that which is stated in the Consent Decree itself would be akin

to rewriting the Consent Decree to conform to the constitutional floor. Such action

is prohibited by the Supreme Court’s holding in Rufo.”24 To which we add that it is

      20
           540 U.S. at 442, 124 S. Ct. at 90.
      21
           Frew III, 401 F. Supp. 2d at 634-35.
      22
           Id.
      23
           Id. at 634-35 (quoting Frew II, 540 U.S. at 439, 124 S. Ct. 899).
      24
           Id. at 635. In Rufo, the Court stated:


                                            12
prohibited by the prior reversal of our holding in this case. Because the object of

the consent decree is not mere compliance with federal law, the objects of the

decree have not been attained.

                                          B.

      Defendants contend that if this court concludes that Frew II does not provide

the applicable standard for terminating a consent decree, the district court erred by

not applying the termination standard used by the Supreme Court in the school

desegregation cases: Missouri v. Jenkins, 515 U.S. 70, 115 S. Ct. 2038, 132

L.Ed.2d 63 (1995); Freeman v. Pitts, 503 U.S. 467, 112 S. Ct. 1430, 118 L.Ed.2d

108 (1992); and Board of Education of Oklahoma City Public Schools v. Dowell,




      A proposed modification should not strive to rewrite a consent decree so
      that it conforms to the constitutional floor. Once a court has determined
      that changed circumstances warrant a modification in a consent decree,
      the focus should be on whether the proposed modification is tailored to
      resolve the problems created by the change in circumstances. A court
      should do no more, for a consent decree is a final judgment that may be
      reopened only to the extent that equity requires. The court should not turn
      aside to inquire whether some of the provisions of the decree upon
      separate as distinguished from joint action could have been opposed with
      success if the defendants had offered opposition.

502 U.S. at 391-92, 112 S. Ct. at 764 (internal quotations, citations and brackets
omitted).

                                          13
498 U.S. 237, 111 S. Ct. 630, 112 L.Ed.2d 715 (1991).25

      In the context of deciding whether to modify or dissolve a desegregation

decree, the Court has directed district courts to consider the following factors:

      [1] whether there has been full and satisfactory compliance with the
      decree in those aspects of the system where supervision is to be
      withdrawn; [2] whether retention of judicial control is necessary or
      practicable to achieve compliance with the decree in other facets of the
      school system; and [3] whether the school district has demonstrated, to
      the public and to the parents and students of the once disfavored race, its
      good-faith commitment to the whole of the courts’ decree and to those
      provisions of the law and the Constitution that were the predicate for
      judicial intervention in the first instance.26

The ultimate inquiry is “‘whether the [constitutional violator] ha[s] complied in

good faith with the desegregation decree since it was entered, and whether the

vestiges of past discrimination ha[ve] been eliminated to the extent practicable.’”27

      The district court rejected the notion that Freeman stated the standard for

consent decree termination. Instead, the district court held that “[t]he applicable

standard in the Fifth Circuit for both types of relief [modification and termination] is


      25
          We note that the defendants did not make this argument in the district
court; rather, it was the plaintiffs who urged the district court to apply the
termination standard set forth in the school desegregation cases. Frew III, 401 F.
Supp. 2d at 632-33.
      26
           Freeman, 503 U.S. at 491, 112 S. Ct. at 1446.
      27
         Id. at 492, 112 S. Ct. at 1446 (quoting Dowell, 498 U.S. at 249-250, 111 S.
Ct. at 638).

                                           14
that announced in Rufo and applied in Cooper.”28 We need not pursue this question

because defendants did not attempt to show that they were complying with the

decree; rather, they argued that they were in compliance with federal law.29 But to

prevail under Freeman, defendants must prove “full and satisfactory compliance

with the decree.”30 They did not do so and their argument here is improvident.

                                           C.

      This record and the briefs make no showing that the district court abused its

discretion in holding that defendants showed no significant change in factual

circumstances to warrant terminating or modifying the consent decree.

      Defendants argue that under the Rufo standard and this court’s interpretation

of Rufo in Cooper, the evidence demonstrates sufficiently changed factual

circumstances warranting the decree’s dissolution, either in whole or in part.

However, defendants fail to articulate how the district court abused its discretion.

Instead, defendants only reiterate that they are in compliance with federal law.

      The district court went through each of the alleged changed factual



      28
           Frew III, 401 F. Supp. 2d at 632 (emphasis in original).
      29
        Id. (“Defendants do not argue that they are in substantial compliance with
the Consent Decree.”).
      30
           503 U.S. at 491, 112 S. Ct. at 1446.

                                           15
circumstances and held that defendants failed to meet their burden under Rufo to

prove significant changed factual circumstances with respect to: (1) medical

checkups;31 (2) the provision of dental services;32 (3) outreach;33 (4) case

management;34 and (5) all urban areas of Texas.35 Given that there were no

significant changed factual circumstances, the district court held that any remedy

that would dissolve the consent decree in its entirety or as to all urban areas of

Texas would be “grossly ill-tailored” to the facts as determined by the district

court.36

       Having reviewed the record and the district court’s detailed decision, we hold

that the district court did not abuse its discretion in holding that defendants failed to

show a significant change in factual circumstances to warrant terminating the

consent decree in its entirety or for urban areas only.

       The order of the district court denying defendants’ Rule 60(b)(5) motion is



       31
            Frew III, 401 F.Supp. 2d at 641-54.
       32
            Id. at 654-57.
       33
            Id. at 657-66
       34
            Id. at 666-67.
       35
            Id. at 667-81.
       36
            Id. at 683.

                                           16
affirmed.

AFFIRMED.




            17
