     Case: 16-30025     Document: 00513785724   Page: 1   Date Filed: 12/06/2016




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

                                                                    FILED
                                 No. 16-30025                  December 6, 2016
                                                                 Lyle W. Cayce
                                                                      Clerk
M. C. MOORE. as father and next friend to minors Joyce Marie Moore, Jerry
Moore, and Thelma Louise Moore,

            Plaintiff
v.

TANGIPAHOA PARISH SCHOOL BOARD, a corporation,

             Defendant - Appellant

v.

DONALD C. MASSEY, Court Appointed Compliance Officer, Tangipahoa
Parish School Board,

             Movant - Appellee




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


Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:
      In this decades-old school desegregation case, Defendant Tangipahoa
Parish School Board (the Board) appeals the district court’s order doubling the
compensation of Donald Massey, the part-time Court Compliance Officer
(CCO) tasked with monitoring the integration efforts of the Tangipahoa Parish
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                                 No. 16-30025
School System. Massey, in addition to arguing that we should affirm on the
merits, has also moved to dismiss the appeal alleging that we lack jurisdiction.
We conclude that we have jurisdiction and affirm.
                                       I
      This desegregation case was filed in 1965. In 1967, the district court
entered a comprehensive order establishing certain student assignment and
facilities requirements aimed at assisting the school district in achieving
unitary school system status. Since then the district court has exercised its
jurisdiction over this matter and has issued numerous additional orders aimed
at reaching this goal. As relevant here, in 2008, the district court created the
current CCO position, a part-time monitor tasked with ensuring that the
parties comply with the court’s orders. As set forth by the district court, the
CCO
      shall review and assure that the school district implements the
      provisions of this Order, collaboratively work with and provide
      assistance to the Chief Desegregation Implementation Officer,
      offer suggestions to the school district as to possible methods or
      procedures which might be implemented to further enhance
      desegregation aims, and prepare an annual report to the parties
      and the court as to the progress of the school district’s
      implementation of each of the provisions of this Order.
The district court appointed Massey to this position in August 2014; at the time
the position’s monthly salary was $4,000.
      In 2015, Massey asked the Board for a raise but the Board denied his
request.   Massey then filed a motion with the district court seeking
compensation at an hourly rate. The Board and the plaintiffs jointly opposed
the motion. The district court granted the motion, but rather than imposing
an hourly rate as Massey had requested, the court increased his monthly
salary to $8,000 per month. The Board appealed.



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                                         II
       We must first address whether we have jurisdiction to hear this appeal.
The Board argues that jurisdiction lies pursuant to 28 U.S.C. § 1292(a)(1) or
alternatively under the collateral order doctrine. Because we conclude that we
have jurisdiction under § 1292(a)(1), we decline to consider whether we would
also have jurisdiction under the collateral order doctrine.
       Typically, appellate jurisdiction is limited to “final decisions of the
district courts.” 28 U.S.C. § 1291. That is, decisions “by which a district court
disassociates itself from a case.” Swint v. Chambers County Comm’n, 514 U.S.
35, 42 (1995). But under 28 U.S.C. § 1292(a)(1), we also have jurisdiction over
appeals from “[i]nterlocutory orders of the district courts . . . granting,
continuing, modifying, refusing or dissolving injunctions.” “A district court
‘grant[s]’ an injunction when an action it takes is ‘directed to a party,
enforceable by contempt, and designed to accord or protect some or all of the
substantive relief sought in the complaint in more than a temporary fashion.’”
In re Deepwater Horizon, 793 F.3d 479, 491 (5th Cir. 2015) (quoting Police Ass’n
of New Orleans Through Cannatella v. City of New Orleans, 100 F.3d 1159,
1166 (5th Cir. 1996)) (alteration in original); see also Integrity Collision Ctr. v.
City of Fulshear, 837 F.3d 581, 586 (5th Cir. 2016) (order directing city to
including towing company on the non-consent tow list was an injunction
subject to enforcement by the district court and thus appealable under Section
1292(a)(1)). “A district court ‘modif[ies]’ an injunction when it ‘changes the
obligations imposed by the injunction.’” In re Deepwater Horizon, 793 F.3d at
491 (quoting CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE
AND   PROCEDURE § 3924.2 (3d ed. 2014)) (alteration in original). “This court
takes a practical view of what constitutes a modification, ‘look[ing] beyond the
terms used by the parties and the district court to the substance of the action.’”


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                                         No. 16-30025
Id. (quoting In re Seabulk Offshore Ltd., 158 F.3d 897, 899 (5th Cir. 1998))
(alteration in original).
       In the school desegregation context, the courts of appeals routinely
exercise appellate jurisdiction under § 1292(a)(1) over orders like the one at
issue in this case. “[E]quitable decrees that impose a continuing supervisory
function on the court commonly . . . contemplate the subsequent issuance of
specific implementing injunctions” and “[e]ach such injunction is appealable
regardless of finality.” People Who Care v. Rockford Bd. of Educ., Sch. Dist.
No. 205, 171 F.3d 1083, 1086 (7th Cir. 1999). In People Who Care, a case
challenging a budget order entered by a magistrate judge for the purpose of
funding school integration, the Seventh Circuit observed that the initial
desegregation decree was essentially “an injunction generator” allowing the
district court to exercise its ongoing supervisory function to ensure the school
district achieved and maintained unitary status.                  Id. This is analogous to
what is happening in this case. The initial decree issued by the district court
in 1967 was “an injunction generator,” and the district court’s order that the
Board increase Massey’s salary is a subsequent injunction that flows directly
from that original order, and is thus “appealable regardless of finality.” See id.
We thus conclude that this court has jurisdiction. 1


       1  We note that there is tension among our precedents interpreting and applying
§ 1292(a)(1). Although this court takes a “practical view” as to what constitutes a
modification of an injunction, we have also said that when an order is not expressly an
injunction or a modification of an injunction but has the “practical effect” thereof, the order
must have “serious, potentially irreparable consequences” in order for jurisdiction to lie. See,
e.g., Sherri A.D. v. Kirby, 975 F.2d 193, 203 & n.14 (5th Cir. 1992) (“orders which explicitly
grant or deny injunctive relief are immediately appealable as of right,” but “orders
which . . . have the practical effect of denying an injunction, but do not do so in explicit terms,
are immediately appealable if the order threatens ‘serious, perhaps irreparable
consequences’ and can be effectively challenged only by an immediate appeal”). Deepwater
Horizon, however, suggests that an appellant must always show “serious, perhaps
irreparable consequences” to confer jurisdiction under § 1292(a). 793 F.3d at 492. But see
Brumfield v. La. State Bd. of Educ., 806 F.3d 289, 297 (5th Cir. 2015) (interpreting an order
as an injunction even though it did not explicitly state it was for injunctive relief, but not
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                                       No. 16-30025
                                             III
       With respect to the merits, the Board argues that the district court
abused its discretion by increasing Massey’s salary from $4,000 per month to
$8,000 per month. The Board also argues that the district court erred in
referring to the CCO position as a “special master” under Federal Rule of Civil
Procedure 53 and that even if it did not err in that regard, the district court
based its decision on unreliable and irrelevant information.
       We review the district court’s determination of Massey’s salary for an
abuse of discretion. See Samnorwood Indep. Sch. Dist. v. Tex. Educ. Agency,
533 F.3d 258, 267 (5th Cir. 2008) (citing Swann v. Charlotte–Mecklenburg Bd.
of Educ., 402 U.S. 1 (1971)). “A district court abuses its discretion if it bases
its decision on an erroneous view of the law or on a clearly erroneous
assessment of the evidence.” United States v. Texas, 601 F.3d 354, 362 (5th
Cir. 2010) (quoting Ross v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005))
(internal quotation marks omitted).
       The fact that the district court referred to Massey as a special master is
a distinction without a difference. Although the CCO position was created
pursuant to the court’s inherent authority in fashioning equitable remedies,
see Ex parte Peterson, 253 U.S. 300, 312 (1920), the Board points to no authority
to support its argument that the court’s inherent power differs in any
meaningful way from its authority pursuant to Rule 53 to appoint special
masters, see Ruiz v. Estelle, 679 F.2d 1115, 1161 n.240 (5th Cir. 1982) (“Beyond
the provisions of [Rule 53] for appointing and making references to Masters, a
Federal District Court has the inherent power to supply itself with this
instrument for the administration of justice when deemed by it essential.”


discussing the consequences before determining that the court had jurisdiction). Because
jurisdiction would be proper under any of these interpretations of § 1292(a)(1), we decline to
resolve these tensions.
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                                  No. 16-30025
(quoting Schwimmer v. United States, 232 F.2d 855, 865 (8th Cir. 1956))
(internal quotation marks and citations omitted)), amended in part, vacated in
part, 688 F.2d 266 (5th Cir. 1982).            Therefore, the district court’s
characterization of Massey as a special master was not an abuse of discretion.
       Nor did the district court abuse its discretion by relying on Rule 53 in
calculating the increase in Massey’s salary.     Under Rule 53(g)(1), “the court
may set a new basis and terms [for the master’s compensation] after giving
notice and opportunity to be heard.” The fixing of fees and costs for a special
master rests within the court’s discretion. Gary W. v. State of La., 601 F.2d
240, 245 (5th Cir. 1979). After giving both sides an opportunity to brief this
issue, the district court issued its order raising Massey’s salary.
       The district court applied the “Hart formula,” derived from Hart v.
Community School Board of Brooklyn, New York School District. No. 21, 383
F. Supp. 699 (E.D.N.Y. 1974), in determining Massey’s compensation. In Hart,
the court concluded that “a reasonable fee would be based upon about half that
obtainable by private attorneys in commercial matters.” Id. at 767; see also
United States v. Yonkers Bd. of Educ., 108 F.R.D. 199, 202 (S.D.N.Y. 1985)
(noting that courts have emphasized the public nature of such work in setting
reasonable fees well below those charged in commercial legal matters).
Applying this as a baseline, the court determined that $140 per hour was an
appropriate hourly rate for the CCO position. The court then multiplied this
number by the average number of hours that Massey worked per month as
CCO.
       The Board does not dispute that the hourly rate the court calculated was
reasonable; rather the Board argues that the district court erred in accepting
that Massey worked seventy hours per month on average in performing his
duties as a CCO. First, the Board argues that the district court erred in relying
on a summary that Massey provided in calculating his salary. The Board
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                                 No. 16-30025
argues that this summary only included the total number of hours worked and
descriptions of the tasks performed, but was not itemized and did not include
time entries. The Board offers no authority, nor have we found any, that
supports its argument that Massey was required to extensively document his
activities, or that he had to provide specific documentation in order to receive
a salary increase. We therefore conclude the court did not abuse its discretion
in relying on the information that Massey provided in calculating his salary.
      Second, the Board argues that the district court improperly credited
Massey with time spent working as a CCO when many of the tasks that Massey
reported to have performed were outside the scope of his duties and
responsibilities as a CCO. Such reported activities included organizing and
moderating “community meetings” to discuss bullying and forming a blue
ribbon panel to discuss issues concerning “at-risk kids” in the school district.
The Board argues that these issues are beyond the scope of the district court’s
desegregation orders and therefore the district court should not have counted
those activities when calculating Massey’s compensation as CCO.
      We cannot say that the district court’s decision was an abuse of
discretion.   School integration is an enormously complex enterprise that
requires consideration of an enormous number of factors. Cf. Swann, 402 U.S.
at 27 n.10 (“There is no universal answer to complex problems of
desegregation; there is obviously no one plan that will do the job in every
case.”). Efforts to achieve unitary status are bound to have a far reaching
impact and unpredictable consequences across the school district. In this case,
the district court has issued orders related to student discipline and special
education programs.      The Board’s interpretation of the CCO’s role in
overseeing the district’s integration efforts is far too narrow.    The CCO’s
responsibilities—which include “offer[ing] suggestions to the school district as
to possible methods or procedures which might be implemented to further
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                                No. 16-30025
enhance desegregation aims”—are broadly defined and therefore it is
reasonable to allow him some flexibility in how he carries out his duties. The
district court has exercised its oversight over this case for many years and is
well-versed with regard to the details and progress of the integration efforts
and the role that the CCO plays. We therefore find that the district court did
not abuse its discretion when it took Massey’s reported activities into
consideration when it calculated his new salary.
                                      IV
      For the foregoing reasons, the district court’s decision is AFFIRMED.




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