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            IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                     Fifth Circuit
                                 _____________________                      FILED
                                                                         January 14, 2013
                                     No. 12-31218
                                 _____________________                     Lyle W. Cayce
                                                                                Clerk

M. C. MOORE, as father and next friend to minors Joyce Marie Moore, Jerry
Moore, and Thelma Louise Moore; HENRY SMITH, as father and next friend
to minors Bennie Smith, Charles Edward Smith, Shirley Ann Smith, and
Earline Smith,

                     Plaintiffs - Appellees

       v.

TANGIPAHOA PARISH SCHOOL BOARD, a corporation,

                     Defendant - Appellee

       v.

LOUISIANA BOARD OF ELEMENTARY AND SECONDARY EDUCATION;
LOUISIANA DEPARTMENT OF EDUCATION; JOHN WHITE,

                     Movants - Appellants
                          __________________________

                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                           U.S.D.C. No. 2:65-CV-15556
                           __________________________

Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-31218

      In a longstanding pending desegregation case, the district court enjoined
certain non-party state actors (Appellants here) from implementing a recently
passed statute with respect to the defendant parish school board.            The
Appellants filed an emergency motion seeking to stay a portion of a preliminary
injunction pending appeal. On December 14, 2012, we granted a temporary stay
pending further order of this court. We note that this matter comes before us as
a motions panel only on the question of whether a stay pending appeal should
be granted. The motion was filed as an emergency motion, with limited time for
briefing and consideration. Under the posture of the case as presented to us, we
are addressing only the question of whether the district court’s injunction order
should be stayed pending consideration of all arguments raised by the parties
– jurisdictional and otherwise – following full briefing and, if appropriate, oral
argument. In assessing whether to grant a stay, we necessarily must examine
the merits of the parties’ arguments. But, given the procedural posture of this
case, we emphasize that we do not intend to bind the ultimate merits panel
which will consider the matter following full appellate process. Additionally, we
determine that a full exposition of the law in this area is unnecessary and
inappropriate at this stage, so we will endeavor to be brief in our reasoning. For
the reasons stated below, we now GRANT the Appellants’ motion and STAY the
district court’s order pending appeal.
     I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
      The desegregation plaintiffs and the Tangipahoa Parish School Board (“the
Board”) (collectively, “the Petitioners”) filed motions for the issuance of writs
pursuant to the All Writs Act, 28 U.S.C. § 1651(a), seeking injunctions against
the further implementation of certain provisions of Acts 1 and 2 of the 2012
Regular Session of the Louisiana Legislature (“Act 1” and “Act 2”) based on their
alleged interference with a court-ordered consent decree.        The underlying
consent decree arose from a 1965 federal desegregation suit, Moore v.

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                                  No. 12-31218

Tangipahoa Parish School Board, in which the district court issued an order
establishing certain student assignment and facilities requirements aimed at
assisting the Board in achieving unitary school system status.
      The most relevant portion of the newly enacted law is the Student
Scholarships for Educational Excellence Act, LA. REV. STAT. ANN. §§
17:4011–:4025, implemented through Act 2. This Act creates a school-voucher
or scholarship program (“the Program”) that allows students in Tangipahoa
Parish (“the Parish”) to attend alternative public or private educational
institutions in lieu of attending their assigned underperforming public school in
the Parish. See LA. REV. STAT. ANN. §§ 17:4013, :4018. When students elect to
participate in the Program, Minimum Foundation Program (“MFP”) funds,
which are state funds intended for public education, are diverted from the
student’s assigned public school in the Parish to the alternative public or private
institution where the student is educated. See id. § 17:4016. At present, fifty of
the approximately 20,000 students in the Parish are participating in the
Program. The Petitioners allege that compliance with the court-ordered consent
decree requires them to receive full MFP funding and that the Program’s
diversion of MFP funds frustrates their ability to implement the provisions of
the decree.
      On October 22, 2012, the district court ordered John White, Louisiana
Superintendent of Education (“Superintendent White”), the Louisiana
Department of Education (“the Department”), and the Louisiana Board of
Elementary and Secondary Education (“BESE”) (collectively, “the State”), “to
show cause . . . as to why a preliminary injunction should not be entered . . .
enjoining and prohibiting . . . further implementation of [the Program in the
Parish].” The district court also ordered the State to show “why a mandatory
preliminary injunction should not be entered . . . directing [the State] to



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                                       No. 12-31218

immediately commence full MFP funding to the [Board] for each student on a
scholarship pursuant to the [Program].”
       The State responded and during the November 26, 2012, hearing the
district court issued a preliminary injunction.1 As instructed by the court, the
Petitioners and the State submitted proposed orders consistent with the court’s
oral reasons. On November 28, 2012, the district court entered the Petitioners’
proposed order thereby enjoining the Program in the Parish.
       The next day, the court denied the State’s request for a stay of the
preliminary injunction pending appeal. The State timely moved this court to
stay a portion of the preliminary injunction. See FED. R. APP. P. 8(a)(1)(C).
       At the same time that the federal district court injunction process was
ongoing, a lawsuit challenging the constitutionality of the Program was pending
in a Louisiana state trial court. That case examines the validity of the Program
under the Louisiana state constitution. See La. Fed’n of Teachers v. Louisiana,
No. 612,733, slip op. at 2 (19th La. Dist. Nov. 30, 2012). The state trial court
found that the Program violates the state constitution by diverting public funds
from the state’s public schools to private entities. See id. This ruling may be
directly appealed to the Louisiana Supreme Court and, as discussed below, could
render this federal action moot.
                            II. STANDARD OF REVIEW
       We review a district court’s denial of a stay pending appeal for abuse of
discretion. See Wildmon v. Berwick Universal Pictures, 983 F.2d 21, 23 (5th Cir.
1992); see also Beverly v. United States, 468 F.2d 732, 740 n.13 (5th Cir. 1972)


       1
        The district court enjoined the Student Scholarships for Educational Excellence Act,
LA. REV. STAT. ANN. §§ 17:4011–:4025, the Course Choice Program, LA. REV. STAT. ANN. §§
17:4002.1–:4002.6, and certain provisions of Act 1, which focus on teacher tenure and
accountability. Because the State requests a stay of the injunction only as it pertains to the
Program administered pursuant to the Student Scholarships for Educational Excellence Act,
we do not consider whether the injunction should be stayed as to these other provisions.

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                                      No. 12-31218

(“[T]he accepted standard for review of such a stay is whether or not the trial
court abused its sound discretion in denying the stay.”).                The factors for
evaluating the appropriateness of a stay pending appeal are well-established:
“(1) whether the stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will substantially injure the other
parties interested in the proceeding; and (4) where the public interest lies.”
Hilton v. Braunskill, 481 U.S. 770, 776 (1987); see also Nken v. Holder, 556 U.S.
418, 426 (2009).
       “The first two factors of the traditional standard are the most critical.”
Nken, 556 U.S. at 434. As the movant for a stay pending appeal, the State
carries the burden to satisfy the four factors, see Ruiz v. Estelle, 666 F.2d 854,
856 (5th Cir. 1982), and it is not entitled to the stay as a matter of right. See
Nken, 556 U.S. at 433.
                                  III. DISCUSSION
       We conclude that the State has met its burden of establishing that the
district court abused its discretion in denying the stay of the preliminary
injunction.2
       A. Likelihood of Success on the Merits
       The State must make “a strong showing that [it] is likely to succeed on the
merits.” Hilton, 481 U.S. at 776. In assessing this standard, “the movant need
not always show a ‘probability’ of success on the merits.” Ruiz v. Estelle, 650
F.2d 555, 565 (5th Cir. 1981) (citation omitted). “[I]nstead, the [State] need only
present a substantial case on the merits when a serious legal question is


       2
        As discussed above, this appeal presents an emergency motion to stay, which is being
decided on an abbreviated briefing schedule and within a limited time. We apply only the
standard governing whether a stay of the preliminary injunction should be granted.
Accordingly, nothing in our opinion should be read as an intent to bind the merits panel
determining whether the district court appropriately issued the injunction.

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                                   No. 12-31218

involved and show that the balance of the equities weighs heavily in favor of
granting the stay.” Id.; see also Nken, 556 U.S. at 434 (noting that the movant
must show “[m]ore than a mere possibility of relief”).             The State has
demonstrated that it is likely to succeed in establishing that the district court
improperly issued the preliminary injunction based on several grounds
including: (1) the district court’s lack of jurisdiction under the Eleventh
Amendment; (2) the Pullman abstention doctrine; and (3) the lack of evidence
establishing authority for the court to act pursuant to the All Writs Act.
      1. Lack of Jurisdiction Based on Eleventh Amendment Immunity
      The State has a strong likelihood of prevailing on its claim that the district
court did not have jurisdiction to issue the preliminary injunction because its
exercise of authority violated the State’s Eleventh Amendment sovereign
immunity. Absent a waiver of immunity by a state or through a federal statute,
the Eleventh Amendment protects states from suit in federal court regardless
of whether the suit seeks damages or injunctive relief. Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984); see also Quern v. Jordan, 440
U.S. 332, 337 (1979) (noting that this immunity guards a state from “a suit in
federal court by private parties seeking to impose a liability which must be paid
from public funds.”). “This bar remains in effect when State officials are sued
for damages in their official capacity” because “a judgment against a public
servant in his official capacity imposes liability on the entity that he represents.”
Kentucky v. Graham, 473 U.S. 159, 169 (1985) (internal quotation marks and
citations omitted); see also Edelman v. Jordan, 415 U.S. 651, 663 (1974) (“It is
also well established that even though a State is not named a party to the action,
the suit may nonetheless be barred by the Eleventh Amendment.”).
      The principle of state sovereign immunity also prohibits subdivisions of a
state from seeking relief against state defendants in federal court. Harris v.
Angelina Cnty., Tex., 31 F.3d 331, 339 (5th Cir. 1994). Indeed, “we can think of

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                                   No. 12-31218

few greater intrusions on state sovereignty than requiring a state to respond, in
federal court, to a claim for contribution brought by one of its own
[subdivisions].” Id. at 340 (citation omitted); see also Stanley v. Darlington Cnty.
Sch. Dist., 84 F.3d 707, 716 (4th Cir. 1996) (“It would be an unfathomable
intrusion into a state’s affairs—and a violation of the most basic notions of
federalism—for a federal court to determine the allocation of a state’s financial
resources. The legislative debate over such allocation is uniquely an exercise of
state sovereignty.”). In general, then, federal courts do not interfere in a state’s
disputes with its own political subdivisions.
      Here, Petitioners seek injunctive relief against two state agencies, the
Department and BESE. Further, there is no claim that Superintendent White
has violated federal law or acted outside of his official capacity, and the State is
not a party to the consent decree. Accordingly, there is a significant likelihood
that the State can show the preliminary injunction offends Eleventh
Amendment immunity because an injunction against the Department, BESE,
or Superintendent White is effectively an injunction against the State.
      The Petitioners’ statements in their briefing to the district court reveal the
true nature of their complaint.       Specifically, the Board seeks to avoid “a
reduction in MFP funding” because “[t]he school board is in need of funding now”
and it “can ill afford to have the state reduce its share of MFP funding.” These
statements show that the Board does not seek an injunction to prevent violations
of federal law, but instead seeks such relief in order to prevent the
implementation of the state legislature’s decisions concerning education funding,
a quintessentially state issue. They also show that the essence of the relief
sought is not injunctive but rather monetary – enjoining the State from “failing
to pay” is little less than telling the State to pay.
      In addition to requiring the State to address legislative decisions about
state funding in federal court, the district court thus required the State to

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                                  No. 12-31218

respond to what is essentially a contribution claim by one of its own
subdivisions. Such disputes concerning the allocation of the state’s financial
resources fall within the purview of a state’s sovereign power, and requiring a
state to answer a claim for contribution – however disguised – from one of its
own subdivisions violates its Eleventh Amendment immunity. See Harris, 31
F.3d at 340; see also Kelley v. Metro. Cnty. Bd. of Educ. of Nashville & Davidson
Cnty., Tenn., 836 F.2d 986, 998 (6th Cir. 1987) (federal courts should not
“adjudicate an internal dispute [concerning funding for a desegregation order]
between a local governmental entity and the very state that created it.”).
Indeed, a school district cannot recover funds expended in compliance with a
desegregation order when the state is not a party to the desegregation order. See
United States v. Tex. Educ. Agency, 790 F.2d 1262, 1264-65 (5th Cir. 1986). Such
attempts to recover funding from a state ostensibly to comply with a
desegregation order to which it is not a party “smacks of an attempted end-run
around the [state] legislature’s allocation of state funds.” Id. at 1265.
      The   district   court   justified       the   issuance   of   the   preliminary
injunction—which essentially serves as an award of monetary relief against the
State’s treasury—by noting that the Supreme Court “has curbed [the limitation
proscribing an award of money damages] in the case of a federal court giving
prospective injunctive relief against a state officer even though compliance with
the injunction will cost the state money in the future.” A district court is not
free to interfere in state spending decisions simply because raising and lowering
funding levels may have some incidental impact on a federal decree. The
injunction here is not aimed at preventing direct interference with a court-
ordered consent decree, but instead bars state officials from implementing a
state’s program and funding decisions because of their attenuated connection to
a consent decree. Unlike the cases relied on by the district court, this matter
does not involve a party seeking a state official’s compliance with federal law

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                                       No. 12-31218

that will indirectly cost the state more money. See, e.g., Quern, 440 U.S. at 336,
349 (federal court has jurisdiction to order state officials to send notification to
class plaintiffs of the availability of an administrative remedy to recover public
benefits); Edelman, 415 U.S. at 668 (finding a federal court cannot require the
“payment of state funds, not as a necessary consequence of compliance in the
future with a substantive federal-question determination”). Furthermore the
district court’s reliance on Milliken v. Bradley is misplaced because, unlike here,
the state in Milliken was a party to the original desegregation order and was
found to be partially responsible for the segregation. 433 U.S. 267, 269, 289-90
(1977) (finding that federal court has jurisdiction to allocate costs between state
and local officials when ordering a school desegregation plan).
       Put another way, the gravamen of Petitioners’ claims is an attempt to
avoid decreases in education funding. Masking it as a concern about compliance
with the district court’s desegregation order does not change the fundamental
nature of the injunction as one directly affecting a state’s sovereign decision-
making about state spending. This approach, then, conflicts with the State’s
sovereign immunity by requiring it to answer what is essentially a claim for
contribution from one of its subdivisions in federal court. Accordingly, the State
has a strong likelihood of success in showing that the district court’s issuance of
the preliminary injunction violated the State’s Eleventh Amendment sovereign
immunity.3
              2. Pullman Abstention


       3
           The extent of the Board’s argument concerning this issue on appeal lies in its
assertion that the injunction does not run afoul of the Eleventh Amendment to the extent that
it enjoins “John White in his official capacity.” The Board does not cite any authority for this
conclusion. The fact that Superintendent White is enjoined in his official capacity does not
cure the potential affront to Eleventh Amendment immunity in this matter. See Kentucky v.
Graham, 473 U.S. 159, 169 (1985); see also Kelley, 836 F.2d at 989 (“The applicability of the
bar of sovereign immunity simply is not affected by the circumstance that the nominal
defendant is an individual state official . . . .” (citation omitted)).

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                                       No. 12-31218

       “[T]he Supreme Court [has] ‘instructed federal courts that the principles
of equity, comity, and federalism in certain circumstances counsel abstention in
deference to ongoing state proceedings.’” See Wightman v. Tex. Supreme Court,
84 F.3d 188, 189 (5th Cir. 1996) (quoting Fieger v. Thomas, 74 F.3d 740, 743 (6th
Cir. 1996)). Based on the application of this principle in Railroad Commission
v. Pullman Co., 312 U.S. 496 (1941), the State is likely to prevail in its claim
that the district court should not have exercised jurisdiction in light of the
pending state-court action challenging the validity of the Program under
Louisiana’s constitution.4
       A federal court should generally abstain from exercising jurisdiction in a
matter when an unsettled area of state law has an effect on the outcome of a
federal constitutional claim or would render a decision on the federal issue
unnecessary. Pullman, 312 U.S. at 496; see, e.g., Askew v. Hargrave, 401 U.S.
476, 478 (1971) (explaining that when the outcome of a case in state court could
remove the need to decide a federal issue a federal court should stay the
proceeding until the state court has rendered judgment). Although “abstention
[i]s applicable only in narrowly limited special circumstances,” the doctrine
should be applied when “[a] state court decision . . . could conceivably avoid any
decision [of the federal question] and would avoid any possible irritant in the
federal-state relationship.” Reetz v. Bozanich, 397 U.S. 82, 86-87 (1970) (internal
quotation marks and citation omitted); Word of Faith World Outreach Ctr.
Church, Inc. v. Morales, 986 F.2d 962, 967 (5th Cir. 1993) (citation omitted)
(“Pullman abstention . . . is addressed to the inappropriateness of federal court

       4
         Because we conclude that Pullman abstention is appropriate, we need not address the
abstention doctrine applied in Younger v. Harris, 401 U.S. 37 (1971). Younger abstention
applies when: “(1) the dispute . . . involve[s] an ongoing state judicial proceeding, (2) an
important state interest in the subject matter of the proceeding [is] implicated, and (3) the
state proceedings . . . afford an adequate opportunity to raise constitutional challenges.” Tex.
Ass’n of Bus. v. Earle, 388 F.3d 515, 519 (5th Cir. 2004) (internal quotation marks and citation
omitted).

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                                  No. 12-31218

resolution of difficult or unsettled questions of state law and the undesirability
of reaching constitutional questions that might be mooted by the application of
state law.”). This doctrine “[i]s based on ‘the avoidance of needless friction’
between federal pronouncements and state policies.” Reetz, 397 U.S. at 87
(quoting Pullman, 312 U.S. at 500).
      This matter presents the very conflict that Pullman abstention seeks to
avoid—i.e., “‘needless friction’ between [a] federal pronouncement[] and state
policies”—as it involves a federal court enjoining a state’s legislatively-
determined funding decisions prior to allowing the state to consider whether
such decisions comport with its own constitution. See id. The State thus has
shown a strong likelihood of succeeding on the merits of its claim that Pullman
abstention applies because the resolution of an unsettled area of state
law—whether the Program’s transfer of public-education funds to non-public
schools offends Louisiana’s state constitution—could obviate the need to consider
the federal issue of whether the Program renders the Petitioners unable to
comply with the court-ordered consent decree. See Nationwide Mut. Ins. Co. v.
Unauthorized Practice of Law Comm., 283 F.3d 650, 653 (5th Cir. 2002). Such
a result is certainly possible in light of a recent decision by a Louisiana district
court holding that the Program violates the state constitution. See La. Fed’n of
Teachers, No. 612,733, slip op. at 2.
      In sum, the Petitioners’ claims that the Program interferes with the
consent decree are “‘entangled in a skein of state law that must be untangled
before the federal case can proceed[.]’” See Harris Cnty. Comm’rs Court v.
Moore, 420 U.S. 77, 88 (1975) (quoting McNeese v. Bd. of Educ., 373 U.S. 668,
674 (1963)). Accordingly, the State has a strong likelihood of establishing that
the district court erred in exercising jurisdiction in light of the Pullman
abstention doctrine.



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                                  No. 12-31218

            3. Lack of Evidence Establishing Authority to Act Pursuant to the
               All Writs Act
      Examining the proceedings in the district court prior to issuance of the
injunction, we are further persuaded of the State’s likelihood of success on the
merits based on the district court’s lack of authority to act pursuant to the All
Writs Act, which serves as the district court’s self-proclaimed basis for
jurisdiction. The All Writs Act provides “power [to] a federal court to issue such
commands . . . as may be necessary or appropriate to effectuate and prevent the
frustration of orders it has previously issued in its exercise of jurisdiction
otherwise obtained.” United States v. N.Y. Tel. Co., 434 U.S. 159, 172 (1977); see
also 28 U.S.C. § 1651(a). As the district court appropriately recognized, this
power may be applied to individuals or entities that were not parties in the
underlying litigation when their conduct frustrates the court’s order. See N.Y.
Tel., 434 U.S. at 174 (citation omitted). “This authority, though, ‘is firmly
circumscribed, its scope depend[s] on the nature of the case before the court and
the legitimacy of the ends sought to be achieved through the exercise of the
power.’” Netsphere, Inc. v. Baron, No. 10-11202, 2012 WL 6583058, at *6 (5th
Cir. Dec. 18, 2012) (quoting ITT Cmty. Dev. Corp. v. Barton, 569 F.2d 1351,
1358-59 (5th Cir. 1978)).
      Three elements must be satisfied for a district court to act pursuant to this
statute, and the burden of establishing them in the district court is on the
Petitioners. See Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004).
First, “the party seeking issuance of the writ [must] have no other adequate
means to attain the relief he desires.” Id. (alteration in original) (citation and
internal quotation marks omitted).       When alternative means of relief are
available, the court should not issue a writ. See, e.g., Pa. Bureau of Corr. v. U.S.
Marshals Serv., 474 U.S. 34, 43 (1985) (finding the use of the All Writs Act to
compel transportation of prisoners was inappropriate because “[a]lthough that


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                                  No. 12-31218

Act empowers federal courts to fashion extraordinary remedies when the need
arises, it does not authorize them to issue ad hoc writs whenever compliance
with statutory procedures appears inconvenient or less appropriate.”). Here, the
Petitioners have alternative means of relief apart from reliance on a writ. In
addition to seeking relief from the state legislature in the form of additional
funding or repeal of the Program, the Petitioners may avail themselves of relief
in state court. In fact, proceedings in the state court already suggest that
alternative relief would be available in light of a recent decision from a state
district court holding that the Program’s disbursement of education funds to
private institutions violates Louisiana’s state constitution. See La. Fed’n of
Teachers, No. 612,733, slip op. at 2.
      Second, the party seeking the writ must meet its “burden of showing that
[its] right to issuance of the writ is clear and indisputable.” Cheney, 542 U.S. at
381 (citation and internal quotation marks omitted). The State has a strong
argument that the Petitioners have not established their “clear and
indisputable” right to the writ.     Generally, a writ is appropriate when it
addresses a direct affront to a district court’s order. See, e.g., United States v.
Hall, 472 F.2d 261, 262-64 (5th Cir. 1972) (finding an injunction under the All
Writs Act proper in the desegregation context to prevent a member of a militant
group from intentionally violating a court order denying his entry into a high
school campus).
      Petitioners contend that the Board faces a large, general budget shortfall
and that any decrease in funding due to students electing to attend schools other
than their assigned public school will adversely affect its “ability to implement”
the requirements of the consent decree. In the district court, Petitioners had the
burden to provide evidence to support their contentions. Instead, the Board
presented general financial data and budgets that provide a general and
superficial overview of the school’s funding mechanism, as well as a few specific

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                                        No. 12-31218

budget needs that are unrelated to schools affected by the Program.5 The Board
further relies on affidavits from administrators at two of the private schools
participating in the Program to suggest that these schools intend to expand,
which in turn will adversely affect the Board’s ability to implement the consent
decree. This evidence—based merely on general financial information and
speculation that the Program will eventually expand to a point that causes them
harm—fails to demonstrate immediate irreparable harm warranting relief.6 See
Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985)
(“Speculative injury is not sufficient; there must be more than an unfounded fear
on the part of the applicant.” (citation omitted)). The “evidence” was nothing
more than a generalized concern that an already cash-strapped school board
would find itself with fewer resources.              No specifics about the particular
decreases and the particular impact was provided to the district court.
       Third, assuming the petition meets the first two requirements, a court
should exercise discretion before issuing a writ to ensure it “is appropriate under
the circumstances.” Cheney, 542 U.S. at 381 (citation omitted). The All Writs
Act does not grant blanket authority to enjoin state conduct in matters related
to a state’s funding of its subdivisions. Instead, the authority under the All
Writs Act “is to be used sparingly and only in the most critical and exigent


       5
           For instance, in its Reply Memorandum and Listing of Supporting Documentation
filed in the district court on November 19, 2012, the Board included an exhibit discussing the
projected costs to improve the Kentwood High School facility. Kentwood High School,
however, is not one of the “assigned schools” or “last attending school” for any of the fifty
students participating in the Program.
       6
         Indeed, the little evidence presented is to the contrary. Prior to filing its Motion for
Issuance of Writs, the Board requested a modification of the consent decree to authorize
approximately $1.4 million of improvements to five schools, none of which are the “assigned
school” or the “last attending school” of the fifty students enrolled in the Program. This
modification of the consent decree is significant because it suggests that while the Board
claims it cannot sustain the loss of MFP funding associated with the Program, the Board’s
budget still allows it to modify the consent to decree in order to receive authorization to
allocate additional money to schools unaffected by the Program.

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                                        No. 12-31218

circumstances.” Wisc. Right to Life, Inc. v. Fed. Election Comm’n, 542 U.S. 1305,
1306 (2004) (citation and internal quotation marks omitted).
       The State has made a strong showing that it is likely to succeed on the
merits of the argument that the district court’s reliance on the All Writs Act was
not appropriate based on the circumstances. Petitioners’ arguments during the
November 26 district court hearing suggest nothing more than that the Program
frustrates the consent decree by interfering with their calculations based on
projections in school growth and student attendance. It is difficult to imagine,
however, that the Program, which affects less than one quarter of one percent
of the Parish’s students, will have a substantial enough effect on the Board’s
calculations to warrant the “extraordinary remedies” provided by the All Writs
Act.
       The Board’s rationale leads to the conclusion that whenever a state
legislature’s actions result in an indirect reduction in education funding a
federal court can enjoin the implementation of the funding decision so long as
the party seeking the writ merely shows that it is in need of funding or that a
change in funding could limit its financial resources. Such a broad use of
authority is not compatible with the Supreme Court’s admonition that the All
Writs Act is an extraordinary form of relief.7


       B. Irreparable Harm


       7
          The district court also purported to act pursuant to its inherent powers. The cases
relied upon by the district court in the exercise of this power, however, involved the
enforcement of consent decrees against parties who agreed to be bound by the decrees. See
e.g., Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 435-36 (2004) (enforcing consent decree
against state officials who were parties to the original decree); United States v. City of Miami,
Fla., 664 F.2d 435, 436 (5th Cir. 1981) (limiting the effect of a consent decree on a party who
did not agree to the decree). Accordingly, even if the Board presented adequate evidence that
the Program conflicted with the consent decree, the All Writs Act—and not the court’s
inherent power—would serve as the proper source of authority to protect a consent decree from
the actions of a non-party to the decree.

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                                   No. 12-31218

      The irreparable injury to the State caused by the preliminary injunction
weighs in favor of a stay pending appeal. See Hilton, 481 U.S. at 776. As the
State points out, the immediate implementation of the injunction will cause
irreparable harm to the fifty students participating in the Program because the
failure to make timely scholarship payments to the students’ schools would
result in the children having to relocate during the school year. This result
would frustrate the State’s program thereby causing harm to it and the students
that the State seeks to serve. The injunction causes further direct irreparable
harm against the State as it deprives the State of the opportunity to implement
its own legislature’s decisions concerning education funding and forces it to
answer for claims in federal court that are likely barred by Eleventh
Amendment immunity.
      C. Substantial Injury to Petitioners and Public Interest
      The factors discussed above—a substantial likelihood of success on the
merits and the irreparable harm to the State—are the most important. Nken,
556 U.S. at 434. The final two factors—the potential for substantial injury to the
Petitioners and the public interest—are less significant in our analysis. We
recognize that the Board may face an injury if it is unable to comply with the
consent decree, which could affect its ability to become a unitary school system.
The evidence presented in the district court, however, belies the claim of injury
to the Petitioners, at least at this point.
      Finally, the public interest factor leans in favor of the State. Enjoining a
State from implementing its own law while an appeal is pending before a federal
court invokes significant concerns related to principles of federalism and comity.
These concerns are especially significant here where the State is enjoined from
implementing its education funding due to an appeal of a federal court action
involving claims for which the State is likely entitled to Eleventh Amendment
immunity.

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                               No. 12-31218

                            IV. CONCLUSION
     For the reasons discussed above, we GRANT the Appellants’ motion to
STAY a portion of the preliminary injunction pending appeal.




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                                  No. 12-31218

DENNIS, Circuit Judge, dissenting:
      In the motion before us, the movant state officials, the Louisiana Board of
Elementary and Secondary Education (“BESE”), the Louisiana Department of
Education, and John White, State Superintendent of Education (collectively, “the
State Officials”), have requested and are clearly entitled to have this court
reverse the district court’s judgment and direct that court to abstain from
further proceedings pending a potentially dispositive decision by the Louisiana
Supreme Court in accordance with Railroad Commission v. Pullman Co., 312
U.S. 496 (1941).     The majority recognizes that the criteria for Pullman
abstention have been satisfied but nevertheless refuses to refrain from
continuing this federal litigation, to reverse the district court’s judgment, and to
order federal-court abstention in this case. I emphatically disagree. A state trial
court has declared the school-voucher law unconstitutional under the Louisiana
State Constitution, that decision has been appealed directly to the Louisiana
Supreme Court, and the state’s highest court will resolve that state
constitutional issue soon.    Accordingly, because the parties, and even the
majority, agree that a Louisiana Supreme Court affirmance of the state trial
court’s judgment will moot this federal litigation entirely, I respectfully dissent
from the majority’s refusal to reverse the district court’s judgment and order it
to abide by Pullman abstention. There is no good reason for the continuation of
this (potentially unnecessary) federal litigation at this time. We are qualified
and able to make a decision regarding Pullman, we unanimously agree that the
criteria for that abstention have been satisfied, and the rationale underlying
that doctrine—reducing friction between the federal and state judiciaries when
important questions of state law are involved—calls strongly for the doctrine’s
invocation here.
      Aside from the majority’s unfortunate decision to continue this federal
litigation even though it concedes that Pullman abstention should be ordered,

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                                  No. 12-31218

I also disagree strongly with the majority’s erroneous reasoning in granting a
stay of the district court’s judgment pending appeal.         First, the majority
incorrectly assumes that the doctrines of Pullman abstention and Eleventh
Amendment sovereign immunity from federal suit may be invoked—not to
terminate or halt this litigation—to enhance the State Officials’ likelihood of
success on the merits in the stay-pending-appeal analysis. This assumption is
plainly wrong. Those independent doctrines may be used to end or suspend a
federal suit but not to enhance its likelihood of success on the merits on appeal
for stay purposes. Second, the majority not only abuses process by refusing to
invoke Pullman immediately but also incorrectly decides that the State Officials
will be able to invoke Eleventh Amendment immunity from federal suit before
the merits panel in this appeal. As the State Officials concede in their motion,
however, the State of Louisiana is not a party of record or otherwise involved in
the underlying litigation. Rather, in this case, the district court, enforcing its
forty-five-year-old consent decree and desegregation order against the
Tangipahoa Parish School Board, prospectively enjoined the State Officials from
executing and applying a state law so as to violate the federal constitution by
frustrating, interfering with, and threatening to dismantle the desegregation
order, based on the Fourteenth Amendment and Brown v. Board of Education,
that requires and establishes terms and conditions for the conversion of the
parish public-school system from a racially discriminatory dual system to a
constitutionally unitary system. It is well settled that prospective injunctive
relief against state officers, as opposed to the state per se, which bars them from
violations of the federal constitution or laws, does not contravene state sovereign
immunity from federal court suits. See, e.g., Milliken v. Bradley, 433 U.S. 267,
289-90 (1977); Ex parte Young, 209 U.S. 123 (1908). Third, the majority errs in
its conclusion that the district court misused the All Writs Act to issue the
preliminary injunction against the State Officials. Finally, a correct application

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                                  No. 12-31218

of the factors to be considered for a stay pending appeal under Nken v. Holder,
556 U.S. 418, 434 (2009), shows clearly that the State Officials are not entitled
to a stay of the district court’s judgment pending appeal, even if the majority
erroneously refuses to order federal-court abstention under Pullman.
                                BACKGROUND
      In 1967, the Court of Appeals for the Fifth Circuit, then engaged in
overseeing the desegregation of numerous school districts in the South, laid
down the following requirement in an en banc decision: “[t]he defendants shall
provide remedial education programs which permit students attending or who
have previously attended segregated schools to overcome past inadequacies in
their education.” United States v. Jefferson Cnty. Bd. of Educ., 380 F.2d 385, 394
(5th Cir. 1967) (en banc). That same year, the District Court for the Eastern
District of Louisiana, in Moore v. Tangipahoa Parish School Board, adopted a
school-desegregation    consent   decree     finding   that   system    to   be   an
unconstitutional racially dual system and required the school board to convert
it to a unitary non-racially discriminatory system. See 290 F. Supp. 96, 96 (E.D.
La. 1968) (citing Brown and Jefferson County). On March 4, 2010, following a
series of earlier modifications, the district court, pursuant to the consent decree
and after hearings and discussions with interested parties, issued an order (Rec.
Doc. No. 876) establishing a desegregation order, under which the Tangipahoa
Parish School Board, when it reached full compliance, would achieve unitary
school-system status and obviate the need for further judicial supervision. To
this end, the consent decree and order detailed numerous obligations with which
the school board must comply, including: the construction of new schools and the
enhancement of existing facilities; the creation of new magnet programs; new
teacher assignments, certifications, and training; reporting and monitoring
requirements to ensure compliance with the court’s order, and the design and
implementation of a parish-wide school taxing district for the issuance of debt

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                                  No. 12-31218

to finance capital improvements. Furthermore, the district court’s order detailed
a student-assignment plan predicated on the ordered expenditures detailed
above and expressly assumed receipt of MFP funding to satisfy the obligations
imposed. See Doc. 876.
      Subsequently, the Louisiana Legislature enacted Acts 1 and 2 of the 2012
Regular Session establishing a school-voucher program authorizing the
disbursement of public funds, diverted from Minimum Foundation Program
(“MFP”) funding, to enable eligible schoolchildren to leave Tangipahoa Parish
public schools to attend private, or non-public, schools of their choice. See LA.
REV. STAT. § 17:4016. The MFP is a fund of public money dedicated to public
primary and secondary school education and determined by collaboration
between the legislature and the BESE. It is then distributed according to a
formula also derived from that collaboration to each of the sixty-nine public
school systems in the state. Importantly, the provisions of the Louisiana State
Constitution do not authorize the legislature to unilaterally alter the dedication
or the distribution formula. See LA. CONST. art. VIII, § 13(B); La. Fed’n of
Teachers v. Louisiana, No.612,733, Slip Op. at 22-34 (19th. Dist. Nov. 30, 2012).
      MFP funding, in conjunction with the operation of Act 2, is a zero-sum
exercise such that MFP money, intended for public-school use, diverted for use
by non-public schools deprives public-school districts such as Tangipahoa of the
use of such funds. Currently, during the first year of the voucher program, fifty
children in Tangipahoa Parish receive school-voucher funds and attend non-
public schools. However, this number will surely grow as non-public schools
expand and new non-public schools are opened. In particular, the district court
observed that thirty-two of Tangipahoa’s public schools—representing a
“considerable” number of students in the district—currently receive “C,” “D,” or
“F” grades, entitling students at those schools to receive a voucher enabling
them to attend school elsewhere. Reimbursement for such vouchers comes from

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                                  No. 12-31218

MFP funding the public schools would otherwise receive and, furthermore,
corresponds with private-school tuition, which a private school is free to increase
should it so desire. Doc. 1066, at 13 n.2. Thus, the district court determined
that Act 2 threatens to undermine the Tangipahoa Parish desegregation consent
decree and the unitary school system plan of conversion by interfering with the
court-mandated obligations laid out in the 2010 consent decree.
      On September 24, 2012, the desegregation plaintiffs and the Tangipahoa
Parish School Board filed a “Motion for Issuance of Writs Pursuant to the All
Writs Act” (Doc. 1021, Exhibit “D”) to enjoin the State Officials’ implementation
of section 17:4016 of the Louisiana Revised Statutes, which provides for a local-
share allocation in the calculation of funding to city and parish school systems
for students in Tangipahoa Parish attending non-public schools under the
school-voucher program. The Tangipahoa Parish School Board claims that the
school voucher program’s diversion of enrollment and public funding to non-
public schools impedes the Board’s “ability to implement” the requirements of
the consent decree (Doc. 876) in the areas of student assignment and facilities.
      On October 22, 2012, the district court issued an “Order and Reasons”
(Doc. 1066, Exhibit “E”) compelling the State Officials to appear before the court
on October 30, 2012 and “show cause, if any they can, as to why a preliminary
injunction should not be entered herein restraining, enjoining and prohibiting
the State Officials’ further implementation of LA. R.S. § 17:4016 that otherwise
would off-set the Tangipahoa Parish School District’s local contribution against
Minimum Foundation Program Funding to be allocated” to Tangipahoa and why
a mandatory preliminary injunction should not enter ordering the State Officials
to immediately commence funding to Tangipahoa if the voucher-funds recipient-
students return to public schools.
      Following argument at a hearing on November 26, 2012, the district court
orally denied the State Officials’ motions, granted a preliminary injunction, and

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                                  No. 12-31218

instructed the parties to submit proposed orders consistent with the court’s oral
reasons. On November 28, 2012, the district court entered the Order proposed
by the desegregation parties (Doc. 1063, Exhibit “B”) thus broadly enjoining the
School Officials from implementing the school-voucher program in Tangipahoa
Parish.
      The following day, November 29, 2012, the district court issued an Order
(Doc. 1065, Exhibit “C”) denying the State Officials’ request for a stay pending
appeal in part because “state law, not imposed by the preliminary injunction,
provides an available option for reallocating agency resources. See LA. R.S.
24:653(F).” On November 30, 2012, the district court issued an “Order and
Written Reasons” (Doc. 1066, Exhibit “E”) denying the State Officials’ “Motion
To Set Aside the Granting of the Two All Writs Motions” (Plaintiffs’ Doc. 1031;
Defendants’ Doc. 1021).
      The State Officials, in accordance with Rule 8 of the Federal Rules of
Appellate Procedure, moved this court to stay a portion of the preliminary
injunction rendered November 28, 2012. Considering the time-sensitive issues
raised herein, we granted a temporary stay pending further order of this court
to allow us time to consider the parties’ motions and arguments and to act upon
them effectively and expeditiously.
                                 DISCUSSION
               A. Pullman Abstention Should Be Ordered
      As this court has noted, “Pullman abstention[] . . . is addressed to . . . the
undesirability of reaching constitutional questions that might be mooted by the
application of state law.” Word of Faith World Outreach Ctr. Church, Inc. v.
Morales, 986 F.2d 962, 967 (5th Cir. 1993). For instance, “[w]here there is an
action pending in state court that will likely resolve the state-law questions
underlying the federal claim, [the Supreme Court has] regularly ordered
abstention.” Harris Cnty. Comm’rs. Court v. Moore, 420 U.S. 77, 83 (1975)

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                                  No. 12-31218

(collecting cases).   Further, “when the state-law questions have concerned
matters peculiarly within the province of the local courts, [the Court has]
inclined toward abstention.” Id. at 83-84 (citations omitted). In this regard,
      [a]mong the cases that call most insistently for abstention are those
      in which the federal constitutional challenge turns on a state
      statute, the meaning of which is unclear under state law. If the
      state courts would be likely to construe the statute in a fashion that
      would avoid the need for a federal constitutional ruling . . . , the
      argument for abstention is strong.
Id. at 84. Thus, when there is a “substantial uncertainty as to the meaning of
state law” and “a reasonable possibility that the state court’s clarification of
state law might obviate the need for a federal constitutional ruling,” the district
court must abstain from adjudicating the federal constitutional claim. Erwin
Chemerinsky, FEDERAL JURISDICTION § 12.2, at 818 (6th ed. 2012).               This
proposition is mirrored in our precedent, under which, if a decision on the state
law issue would make adjudication of the federal constitutional challenge
unnecessary, the district court must abstain. See Nationwide Mut. Ins. Co. v.
Unauthorized Practice of Law Comm., 283 F.3d 650, 653 (5th Cir. 2002). As
described in more detail below, Pullman abstention is clearly and immediately
warranted in this case. Indeed, the majority agrees that Pullman abstention is
called for but treats it as an optional, malleable doctrine that it may delay and
merge with its determination of whether the appeal is likely to succeed under
the Nken four-factor test. This is grievous, compounded error. Because of the
nature of the Pullman doctrine, it applies only to decide when federal courts
should abstain or refrain from further adjudication of a claim because its
resolution may be mooted by a state-court decision and not, as the majority
misuses it, to predict whether a defense on the merits will be successful on
appeal under Nken.       Pullman abstention is designed to stop potentially




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                                         No. 12-31218

unnecessary federal litigation in its tracks and therefore should have nothing to
do with perpetuating federal litigation on appeal.
                                              1.
      In the case before us, the criteria warranting Pullman abstention plainly
have been met. First, a state trial court in Baton Rouge has declared Act 2
invalid under the Louisiana State Constitution as an unauthorized reassignment
of students and diversion of MFP funds away from public schools and into non-
public schools,1 and that decision is now pending on direct appeal to the
Louisiana Supreme Court.2 The State Officials, as well as the majority, agree
that if the state supreme court affirms the trial court’s decision, this federal
litigation will be moot, because in the absence of the 2012 state law there will be
no diversion of public funds for private tuition or reassignment of students to
non-public schools. Given that the parties challenging Act 2’s constitutionality
prevailed in the state trial court, there is sufficient uncertainty as to the
meaning of state law (namely, whether Act 2 comports with the commands of the
Louisiana State Constitution). Especially noteworthy in this regard is that the
state court ruled Act 2 unconstitutional on the basis of a unique provision of the
Louisiana State Constitution—one without analog in the U.S. Constitution
—providing that funds dedicated jointly by the legislature and the BESE under
the MFP formula for Louisiana’s public-schools systems must be directed to
public parish and city school boards that administer those systems and may not
be diverted unilaterally by the legislature to non-public schools. See La. Fed’n
of Teachers v. Louisiana, No. 612,733, Slip Op. at 22-34 (19th Dist. Nov. 30,
2012); see also LA. CONST. art. VIII, § 13(B)-(C). As stated in a noted treatise,


      1
        See Lauren McGaughy, Jindal Voucher Overhaul Unconstitutionally Diverts Public
Funds to Private Schools, Judge Rules, THE TIMES-PICAYUNE, Nov. 30, 2012,
http://www.nola.com/politics/index.ssf/2012/11/jindal_voucher_overhaul_uncons.html.
      2
          See LA. CONST. art. 5, § 5(D)(1).

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                                       No. 12-31218

“abstention is justified if there is a unique state constitutional provision and a
state court interpretation of it could make a federal constitutional decision
unnecessary.” Chemerinsky, supra, § 12.2, at 822; see also Reetz v. Bozanich,
397 U.S. 82 (1970) (abstention appropriate due to unclear meaning of unique
fishing-rights provision of state constitution).
       Second, adjudication of the pending state-court challenge to the
constitutionality of Act 2 could render moot the need to address the petitioners’
federal constitutional challenge involving Act 2, which is predicated on the
district court’s desegregation order under Brown v. Board of Education, 347 U.S.
483 (1954), and United States v. Jefferson County, 380 F.2d 385 (1967) (en banc),
and the parties so agreed at the November 26, 2012 hearing.3 This is because
if the state court rules Act 2 unconstitutional on the basis of the Louisiana State
Constitution, the petitioners’ claimed threatened harm—the State Officials’
defunding of the Tangipahoa Parish school system, their authorizing
reassignment of parish students to non-public schools, and their payment of such
schools’ tuition with MFP money pursuant to Act 2, and the resulting
impediment to the school district’s ability, for lack of funds, to comply with the
district court’s desegregation order—will vanish, thus obviating the need to rule
on the petitioners’ federal constitutional challenge. For these reasons, I believe
that Pullman abstention should be applied here; accordingly, the district court’s
judgment should be immediately reversed and the case remanded with
instruction for the district court to abstain under Pullman. See Harris Cnty.,
420 U.S. at 89 n.14 (“Ordinarily the proper course in ordering ‘Pullman



       3
        That the desegregation order was entered in a desegregation case premised on Brown
and its progeny demonstrates the constitutional dimensions of the ruling requested by the
petitioners. See Freeman v. Pitts, 503 U.S. 467, 491 (1992) (describing “those provisions of the
law and the Constitution” as “predicate for judicial intervention” by way of a consent decree)
(emphasis added).

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                                         No. 12-31218

abstention’ is to remand with instructions to retain jurisdiction but to stay the
federal suit pending determination of the state-law questions in state court.”).4
                                                2.
       Although the majority concedes that the criteria for Pullman abstention
have been met, it wrongly refuses to apply it immediately and continues this
litigation by misusing the doctrine to assist in granting the State Officials a stay
of the district court’s judgment pending appeal. This is double error because
Pullman abstention should be ordered immediately when it appears that federal
litigation may be an unnecessary entanglement and interference with state law;
and the Pullman abstention criteria do not relate to the merits of the district
court’s injunction. Rather, Pullman is an independent doctrine, predicated on
federalism, the avoidance of unnecessary federal constitutional rulings through
abstention, and the value of allowing state courts to resolve sensitive and unique
state issues first, before proceeding with federal litigation. On this basis,
Pullman requires analysis independent from that conducted under Nken to
decide whether to stay the district court judgment while the federal litigation
continues on appeal.
       Second, despite acknowledging that Pullman should apply, the majority
erroneously concludes that the appeal may continue and that the State Officials’
motion for a stay pending appeal should be granted. See Slip Op. at 16. The
Supreme Court has instructed that when Pullman abstention is called for, the
proper course is to remand with instruction to retain jurisdiction but stay the
federal suit pending determination of the state-law question in state court. See
Harris Cnty., 420 U.S. at 89 n.14; Morales, 986 F.2d at 968-70 (reversing and
remanding for further proceedings consistent with the court’s instruction to


       4
         The exception to the rule, not at issue here, is where the state “has ruled[] . . . that
it cannot grant declaratory relief under state law if a federal court retains jurisdiction over the
federal claim.” Id.

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                                  No. 12-31218

abstain under Pullman). Once it is determined that the Pullman doctrine is
applicable, we lack any discretion to proceed otherwise.
      Third, in connection with Pullman abstention we should certify the
question regarding Act 2’s constitutionality under the Louisiana State
Constitution to the Louisiana Supreme Court. Certification is appropriate
because, even though the issue has already been appealed to the state high court
our certification of it may expedite resolution of this potentially dispositive
question and will serve the goals of abstention and avoidance by obviating the
need to rule on the petitioners’ federal constitutional challenge. As the Court
wrote in Arizonans for Official English v. Arizona, “Pullman abstention [has]
proved protracted and expensive in practice, for it entail[s] a full round of
litigation in the state court system before any resumption of proceedings in
federal court.” 520 U.S. 43, 76 (1997); see also Chemerinsky, supra, § 12.3, at
840 (noting that the procedure, followed under Pullman and requiring parties
to litigate state-law claims in state court first, “commonly takes many years and
imposed substantially increased costs on litigants”). “Certification procedure,
in contrast, allows a federal court faced with a novel state-law question to put
the question directly to the State’s highest court, reducing the delay, cutting the
cost, and increasing the assurance of gaining an authoritative response.”
Arizonans, 520 U.S. at 76; see also Lehman Bros. v. Schein, 416 U.S. 386, 391
(1974) (noting that certification saves “time, energy, and resources and helps
build a cooperative judicial federalism”); Chemerinsky, supra, § 12.3, at 841
(“Certification greatly simplifies the abstention procedure and therefore reduces
the delays and increased costs usually accompanying abstention.”). Certification
will expedite resolution of this case while serving important goals of our nation’s
federalism. And in particular, time is of the essence when educating children.




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                                 No. 12-31218

         B. The State Officials Are Not Entitled to Sovereign
      Immunity from Suit in Federal Court To Enjoin Them from
     Thwarting and Interfering with a Valid Desegregation Order
      Contrary to the majority’s decision, the Eleventh Amendment does not bar
the district court’s enforcement of the federal consent decree and desegregation
order by enjoining the State Officials from frustrating, interfering with, or
threatening to dismantle those federal orders by executing a state law that
sharply conflicts with the federal decrees by authorizing, inter alia,
reassignment of public school students to non-public schools and the increasing
diversion of state MFP funds away from the parish’s public-school system to pay
for transfer students’ non-public school tuition.
      As the Supreme Court held in Frew v. Hawkins, a case such as this
“involves the intersection of two areas of federal law: the reach of the Eleventh
Amendment and the rules governing consent decrees.” 540 U.S. 431, 437 (2004).
As the Supreme Court explained:
      The Eleventh Amendment confirms the sovereign status of the
      States by shielding them from suits by individuals absent their
      consent. To ensure the enforcement of federal law, however, the
      Eleventh Amendment permits suits for prospective injunctive relief
      against state officials acting in violation of federal law. This
      standard allows courts to order prospective relief as well as
      measures ancillary to appropriate prospective relief. Federal courts
      may not award retrospective relief, for instance, money damages or
      its equivalent, if the State invokes its immunity.
Id. (citations omitted).   This case is not a suit for money damages or its
equivalent against the State, but rather a suit for an injunction requiring the
State Officials to conform their conduct to federal constitutional law as
interpreted by Brown and its progeny and as set forth in the desegregation
consent decree entered in this case in 1965 and updated by succeeding
desegregation orders, the most recent being the 2012 desegregation order.




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                                  No. 12-31218

       “Consent decrees have elements of both contracts and judicial decrees.”
Id. Thus, “[a] consent decree ‘embodies an agreement of the parties’ and is also
‘an agreement that the parties desire and expect will be reflected in, and be
enforceable as, a judicial decree that is subject to the rules generally applicable
to other judgments and decrees.’” Id. And “[c]onsent decrees entered in federal
court must be directed to protecting federal interests.” Id. In Firefighters v.
Cleveland, the Court “observed that a federal consent decree must spring from,
and serve to resolve, a dispute within the court's subject-matter jurisdiction;
must come within the general scope of the case made by the pleadings; and must
further the objectives of the law upon which the complaint was based.” Id.
(citing 478 U.S. 501, 525 (1986)).
      Here, the State Officials do not contend that the terms of the consent
decree or desegregation order were impermissible under Brown and Jefferson
County. Nor do they contend that the consent decree failed to comply with
Firefighters. Rather, the officials challenge only the district court’s means of
enforcement of the decree and order, not their validity or entry.
      The state officials rely heavily on the Supreme Court’s decision in
Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984), and the
Eleventh Circuit’s decision in DeKalb County School District v. Schrenko, 109
F.3d 680 (11th Cir. 1997). Pennhurst and DeKalb County, which relies primarily
on Pennhurst, however, are distinguishable. In those cases, the courts found the
rationale of Ex parte Young inapplicable to suits brought against state officials
alleging violations of state-law. 465 U.S. at 106; 109 F.3d at 688. Jurisdiction
was thus improper because “[a] federal court’s grant of relief against state
officials on the basis of state-law, whether prospective or retroactive, does not
vindicate the supreme authority of federal law.” Pennhurst, 465 U.S. at 106.
Here, by contrast, the law to be enforced is not state law but federal law,
embodied in a federal consent decree and desegregation order that was entered

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                                   No. 12-31218

to implement the Fourteenth Amendment of the U.S. Constitution as interpreted
by Brown and its progeny. This is the federal law which the State Officials have
been enjoined from frustrating or threatening to dismantle.
      Therefore, this case is governed by the Supreme Court’s decision in Ex
parte Young and its progeny in which the Court has striven to harmonize the
principles of state sovereign immunity with the effective supremacy of rights and
powers secured elsewhere in the Constitution. When a suit is brought only
against state officials, as in the present case, a question arises as to whether that
suit is a suit against the State itself. Pennhurst, 465 U.S. at 101. “Although
prior decisions of [the Supreme] Court have not been entirely consistent on this
issue, certain principles are well established.” Id. For instance, the Eleventh
Amendment bars a suit against state officials when “the state is the real,
substantial party in interest.” Ford Motor Co. v. Dep’t of Treasury, 323 U.S. 459,
464 (1945). “The general rule is that a suit is against the sovereign if ‘the
judgment sought would expend itself on the public treasury or domain, or
interfere with the public administration,’ or if the effect of the judgment would
be ‘to restrain the Government from acting, or to compel it to act.’” Dugan v.
Rank, 372 U.S. 609, 620 (1963) (citations omitted). However,
       [t]he Court has recognized an important exception to this general
       rule: a suit challenging the constitutionality of a state official's
       action is not one against the State. This was the holding in Ex parte
       Young, . . . in which a federal court enjoined the Attorney General
       of the State of Minnesota from bringing suit to enforce a state
       statute that allegedly violated the Fourteenth Amendment. This
       Court held that the Eleventh Amendment did not prohibit issuance
       of this injunction.      The theory of the case was that an
       unconstitutional enactment is “void” and therefore does not “impart
       to [the officer] any immunity from responsibility to the supreme
       authority of the United States.” Since the State could not authorize
       the action, the officer was “stripped of his official or representative
       character and [was] subjected to the consequences of his official
       conduct.


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Pennhurst, 465 U.S. at 102 (citation omitted). Further,
          [w]hile the rule permitting suits alleging conduct contrary to “the
          supreme authority of the United States” has survived, the theory of
          Young has not been provided an expansive interpretation. Thus, in
          Edelman v. Jordan, . . . the Court emphasized that the Eleventh
          Amendment bars some forms of injunctive relief against state
          officials for violation of federal law. In particular, Edelman held
          that when a plaintiff sues a state official alleging a violation of
          federal law, the federal court may award an injunction that governs
          the official's future conduct, but not one that awards retroactive
          monetary relief. Under the theory of Young, such a suit would not
          be one against the State since the federal-law allegation would strip
          the state officer of his official authority.
Id. at 102-03. Thus, prospective injunctive relief against a state officer does not
amount to retroactive relief that would be barred by the Eleventh Amendment.
See id.

      Applying the foregoing principles, it is clear that the district court’s
injunction of the State Officials’ future unconstitutional conduct that would
contravene federal law by frustrating and threatening defeat of the federal
consent decree and desegregation order, based on federal constitutional law, is
not a suit or an injunction against the state. Nor does the district court’s
injunction violate the Eleventh Amendment by granting retroactive relief against
the state or any state official or by ordering the payment of any compensation for
past wrongs by the state or its officers.

      The majority does not disagree with the principles enunciated by the
Supreme Court in Ex parte Young and its progeny as set forth above. Instead,
the majority totally mischaracterizes the district court’s injunction by incorrectly
stating that it is “an award of monetary relief against the State’s treasury,” Slip
Op. at 8; that it requires the State “to answer what is essentially a claim for
contribution from one of its subdivisions in federal court,” Slip Op. at 9; and that




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                                   No. 12-31218

“this matter does not involve a party seeking a state official’s compliance with
federal law that will indirectly cost the state more money,” Slip Op. at 8.

      A fair and accurate reading of the record demonstrates that the district
court’s injunction merely requires the State Officials to conform their prospective
conduct to federal law as stated in the desegregation consent decree and orders;
and that it does not order the state to contribute anything from its treasury or,
for that matter, to do anything at all. Indeed, because the state has not been
made a party, the injunction applies only against the State Officials and orders
that their “implementation of [Act 2] of the 2012 Regular Session of the Louisiana
Legislature be enjoined in accordance with this Court’s previous order,” in which
the district court stated that its injunction would apply to restrain them
prospectively from frustrating the court’s implementation of the desegregation
consent decree and orders.

      The majority’s implicit argument that Superintendent White may not be
enjoined under Ex parte Young because there is no claim that he has violated
federal law or acted outside of his official capacity is without merit. The
Louisiana State Constitution places general duties on him and the members of
the BESE to administer Act 2 of the Regular Session of the 2012 Legislature. See
LA. CONST. art. 8, §§ 2, 13. Act 2 itself more specifically places a duty on them to
take actions that would violate federal law by frustrating the district court’s
implementation of its desegregation consent decree and orders. Under Ex parte
Young, in making an officer of the state a defendant in a suit to enjoin the
unconstitutional enforcement of a state law, the officer must have some
connection with the enforcement of the act. “The fact that the state officer, by
virtue of his office, has some connection with the enforcement of the act, is the
important and material fact, and whether it arises out of the general law, or is
specially created by the act itself, is not material so long as it exists.” Ex parte


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                                    No. 12-31218

Young, 209 U.S. at 157; see also K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010)
(citing this passage from Young).

      Finally, the cases the majority cites in support of its assertion that this is
a suit against the state in violation of the Eleventh Amendment are inapposite
because they are cases in which a suit essentially sought retroactive relief, or
monetary compensation, against the state itself, and not prospective injunctive
relief against a state official. As the Supreme Court has stated:

       [The Young] doctrine has existed alongside our sovereign-immunity
       jurisprudence for more than a century, accepted as necessary to
       “permit the federal courts to vindicate federal rights.” It rests on
       the premise—less delicately called a “fiction[]”—that when a federal
       court commands a state official to do nothing more than refrain from
       violating federal law, he is not the State for sovereign-immunity
       purposes.
Va. Office for Protection & Advocacy v. Stewart, 131 S.Ct. 1632, 1638 (2011). In
the present case, that is all the district court has done, viz., command the State
Officials to refrain from violating federal law embodied in the desegregation
consent decree and orders. Accordingly, the district court had jurisdiction to
issue the injunction, and the Eleventh Amendment presented no bar.
         C. The State Officials Have Failed To Make a Strong
      Showing of a Likelihood of Success on the Merits Regarding
         the District Court’s Application of the All Writs Act
      The All Writs Act, 28 U.S.C. § 1651(a), empowers “a federal court to issue
such commands . . . as may be necessary or appropriate to effectuate and prevent
the frustration of orders it has previously issued in its exercise of jurisdiction.
otherwise obtained.” United States v. N.Y. Tel. Co., 434 U.S. 159, 172 (1977).
Under the Act, a district court may issue a writ binding persons or entities that
were not parties to the underlying litigation if their conduct frustrates the court’s
order. See id. at 174. As the Supreme Court has stated, “three conditions must
be satisfied before [the writ] may issue”:


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                                     No. 12-31218

       First, “the party seeking issuance of the writ [must] have no other
       adequate means to attain the relief he desires,” a condition designed
       to ensure that the writ will not be used as a substitute for the
       regular appeals process. Second, the petitioner must satisfy “the
       burden of showing that [his] right to issuance of the writ is clear and
       indisputable.” Third, even if the first two prerequisites have been
       met, the issuing court, in the exercise of its discretion, must be
       satisfied that the writ is appropriate under the circumstances.
Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380-81 (2004) (internal
quotation marks and citations omitted). Although the majority asserts that the
district court lacked authority under the Act, this is incorrect.
      Given the framework advanced by the majority, the State Officials bear the
burden of demonstrating a strong showing of a likelihood of success on the merits
that one or more of the conditions outlined in Cheney is missing. See Slip Op. at
4-5, 11-15; see also Nken, 556 U.S. at 434. The State Officials have not met this
burden. Instead, their only argument regarding the All Writs Act is that the Act
“cannot serve as an independent basis for jurisdiction.” See Texas v. Real Parties
in Interest, 259 F.3d 387, 392 (5th Cir. 2001).5 However, no one disputes that the
district court already possessed an independent basis for the exercise of
jurisdiction: namely, the decades-old desegregation suit out of which the 2010
consent decree arose and is still under the district court’s supervision. Thus, the
State Officials’ argument misses the mark and, moreover, does not constitute a
strong showing of a likelihood of success on the merits as required by Nken.
      Given the State Officials’ terse All Writs Act analysis, the majority has
seen fit to supply the State Officials’ argument for them. Not only is this
inappropriate under Nken, but the majority’s arguments are also incorrect. First,
the majority asserts that the petitioners possess adequate means of relief apart


       5
         The State Officials also assert that the Act may not be “used to circumvent or
supersede the constitutional limitations of the Eleventh Amendment.” See In re Baldwin-
United Corp., 770 F.2d 328, 340 (2d Cir. 1985). Given that the Eleventh Amendment does not
bar the present suit, this observation is beside the point.

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                                   No. 12-31218

from the All Writs Act. Slip Op. at 12. The meager options the majority suggests
are twofold: (1) entreat the State Legislature to either provide greater funding or
repeal Act 2; or (2) rely on the pending state-court proceeding addressing the
constitutionality of Act 2 under the Louisiana State Constitution.          See id.
However, and as the district court observed in its November 30 order, the
pending state-court proceeding does not address compliance with the 2010
consent decree nor how Act 2 will affect Tangipahoa’s ability to achieve unitary
status; that issue would be beyond the scope of that proceeding. Although
resolution of the pending state-court suit may moot the need for further federal
litigation, this factor is addressed to Pullman abstention, see supra, not the first
factor for invocation of the All Writs Act, which asks whether recourse to the
state-court litigation will enable the petitioners to assert their claim that the
State Officials’ administration of Act 2 frustrates and defeats the school board’s
compliance with the 2010 consent decree. Moreover, given that the state trial
court declined to enjoin the voucher program, timely access to relief is not
available to petitioners. See Stephanie Simon, Louisiana Voucher Program Ruled
Unconstitutional,         The     Huffington       Post,     Nov.    30,    2012,
http://www.huffingtonpost.com/2012/11/30/judge-rules-louisiana-sch_n_222096
2.html. Regarding whether the petitioners should be required to lobby the
legislature, relief from that body not only is speculative but also ignores that,
absent the injunctive relief requested, the petitioners’ ability to comply with the
consent decree will be undermined and severely frustrated.
      Second, the majority contends that the petitioners have not shown that
their right to the writ is “clear and indisputable” because they allegedly rely on
speculation and general financial information to show the harm that Act 2
creates. See Slip Op. at 12. The district court noted that the applicability of the
All Writs Act in this very context (namely, allowing a federal court to enforce its
consent decrees) is well established.        Moreover, the majority’s argument

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                                   No. 12-31218

impermissibly shifts the burden from the State Officials requesting a stay to the
petitioners who have successfully convinced the district court that application of
the All Writs Act is warranted. The district court is in a better position, having
supervised the underlying desegregation suit for decades and overseen countless
hours of careful negotiations between the parties, to judge what will and will not
affect Tangipahoa’s compliance with the consent decree. See Tasby v. Black Coal.
To Maximize Educ., 771 F.2d 849, 855 (5th Cir. 1985) (reasoning that “great
deference is given to the district courts” in reviewing desegregation orders
because “the district courts are best situated to understand the particular
problems and needs of the districts in which they sit” and “their proximity to local
conditions” enables them to “best perform this judicial appraisal”) (internal
quotation marks omitted) (citing Brown v. Bd. of Educ., 349 U.S. 294, 299 (1955)
(Brown II)); cf. Spallone v. United States, 493 U.S. 265, 281 (1990) (Brennan, J.,
dissenting) (referring to the district court’s “intimate contact” with and “special
insight” into the facts of the case and criticizing the Court for its “ex post
rationalization” from its “detached vantage point” for disturbing the district
court’s calculated judgment of what would “most likely . . . work quickly and least
disruptively” in the case); see also Newby v. Enron Corp., 338 F.3d 467, 476 (5th
Cir. 2003) (reviewing issuance of a writ pursuant to the All Writs Act for abuse
of discretion).   The majority’s analysis, then, robs the district court of the
deference we are required to pay to the court’s determination that Act 2 is a
threat to compliance with the federal constitutionally required consent decree
and unitary system conversion plan. See Tasby, 771 F.2d at 855 .
      Third, the majority reasons that issuance of the writ was not appropriate
under the circumstances because only one-quarter of one percent of
schoolchildren in the parish are affected, at this point in time in the first year of
the voucher program. Again, this pays little fealty to the considered wisdom and
common sense of the district court’s judgment and, moreover, ignores the

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                                    No. 12-31218

determination that the number of schoolchildren participating in the voucher
program, thereby abandoning the public schools in Tangipahoa and depriving
them of much-needed funding, undoubtedly will increase in future. For the
foregoing reasons, I do not believe the State Officials have satisfied their burden
of making a strong showing of a likelihood of success on the merits regarding the
district court’s utilization of the All Writs Act.
           D. The State Officials Have Failed To Satisfy Their
           Burden of Demonstrating All Four Nken Factors To
                     Justify a Stay Pending Appeal
      The State Officials bear the burden of satisfying all four Nken factors in
order to warrant a stay pending appeal. See 556 U.S. at 434. Despite this, the
State Officials have satisfied none.
      First, the State Officials have failed to make a strong showing of a
likelihood of success on the merits. Even assuming that analysis under the
Eleventh Amendment and Pullman doctrine is appropriately subsumed under
Nken’s first factor—a contention with which I take great issue given the
jurisdiction-sapping nature of affirmative answers under either doctrine—the
State Officials’ arguments based on the Eleventh Amendment, Pullman, and the
All Writs Act fail to demonstrate a strong showing of a likelihood of success on
the merits. Thus, the State Officials must make a strong showing in some other
fashion.
      In this regard, the State Officials bear the burden of strongly showing that
the district court abused its discretion in granting a preliminary injunction to
halt Act 2’s interference with the consent decree in Tangipahoa. See Planned
Parenthood Ass’n of Hidalgo Cnty. Tex., Inc. v. Suehs, 692 F.3d 343, 348 (5th Cir.
2012). This is a high bar, one that calls for greater deference to the findings and
conclusions of the district court than if we as a panel were to conduct a de
novo review of the issues presented in this appeal. See id.; Tasby, 771 F.2d 849,
855. The district court determined, based in part on the testimony, discussions,

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                                     No. 12-31218

and evidence it considered in formulating its consent decree and unitary-school-
system plan, that the operation of Act 2 in Tangipahoa would undermine or
unduly impede the school board’s ability to comply with the consent decree and
the goal of achieving unitary status. Thus, the State Officials are obliged to make
a strong showing that the diversion of MFP funding away from the public-school
system and into non-public schools via the use of vouchers by schoolchildren
opting out of the former to attend the latter, would not interfere with or
undermine the district court’s carefully crafted consent decree and unitary school
system plan, which was based on projections measuring public-school enrollment
and the corresponding allocation of MFP funds to Tangipahoa by the State. I
particularly note that the State Officials introduced no evidence to show that Act
2’s unilateral diversion of MFP funds and enrollment from public schools to non-
public schools would not interfere with and undermine the district court’s consent
decree and unitary public school system plan for Tangipahoa public schools.
They did not show—nor, I question, could they—that the diversion of MFP
funding from Tangipahoa would not affect the meticulous requirements imposed
on the school system, including the construction of new facilities, the
improvement of old ones, new teacher-training requirements, school programs,
and student assignments.          Instead, the State Officials simply argued that
Tangipahoa received slightly more MFP funds for the 2012-2013 school year than
it received for the 2011-2012 school year. This argument did not take into
account the added burdens imposed upon the Tangipahoa public system by the
district court’s consent decree and unitary plan in the next and succeeding years.
Because of a lack of evidence and failure to acknowledge that growth in profits
without accounting for added debt does not guarantee financial health, the State
Officials have failed to satisfy their burden of making a strong showing of
likelihood of success in reversing the district court’s findings and judgment with
respect to Nken’s first factor.

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                                   No. 12-31218

      Second, the State Officials have failed to make out an irreparable injury as
required by Nken’s second factor. Our temporary stay of the injunction on
December 14, 2012 permitted the payment of the fifty children’s vouchers on
December 17, 2012 and the continued implementation of Act 2 in Tangipahoa.
This undercuts the majority’s contention that the fifty participating
schoolchildren would have to relocate absent timely payments during the school
year. See Slip Op. at 15. Further, even under the injunction’s terms, the loss of
vouchers by the fifty schoolchildren currently enrolled in the voucher program in
Tangipahoa neither substantially nor irreparably would have injured the voucher
program or the affected children. The schoolchildren would have remained
entitled to free public education by the Tangipahoa school district and Act 2
would have been temporarily stopped only as to fifty students in one public-school
district out of sixty-nine statewide. Therefore, even if we had not issued our
temporary stay of the injunction, no irreparable injury would have befallen the
state or the fifty children due to the district court’s judgment.
      Regarding the third and fourth Nken factors—whether the stay will
substantially harm the petitioners and a determination of where the public
interest lies—the State Officials have also failed to satisfy Nken’s commands. In
particular, the State Officials rely solely on their assertion that the school board
in fact received more funding this year than it did last year. But, as mentioned
previously, the State Officials’ argument fails to take into account the burdens
the school system will be obligated to discharge in the future; essentially, the
State Officials are reading only one side of Tangipahoa’s profit-and-loss
statement. Showing that neither the public interest in public education nor the
Tangipahoa public school system, within the context of the consent decree and
unitary plan, will be harmed by the Act 2 voucher program requires a much more
complex analysis. The additional burdens on the Tangipahoa public school



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                                    No. 12-31218

system by the consent decree and unitary school system plan, as well as other
factors such as demographics and inflation, would have to be taken into account.
      The majority’s attempt to minimize the harm that will befall petitioners if
they are unable to comply with consent decree, as well as their assertion that
Nken’s last two factors are “less significant” ignores that State Officials’ burden
in satisfying all four factors. See Nken, 556 U.S. at 434; Slip Op. at 15-16.
Additionally, the district court observed that the expansion of non-public schools
in and around the parish concomitant with the enactment of Act 2, as well as the
likely increase in the number of students availing themselves of vouchers, would
further destabilize the carefully crafted consent decree. Doc. No. 1066, at 12-13.
Under the third Nken factor, it is up to the State Officials to demonstrate that the
petitioners will not be substantially harmed. See id. It is not the role of the
majority, conceding that Act 2 interferes with the school board’s ability to comply
with the consent decree, see Slip Op. at 16, to assert that Act 2 does not interfere
with Tangipahoa’s compliance enough. All this leads to the conclusion that the
State Officials have failed to carry their burden with respect to Nken’s third and
fourth factors. Based on this and foregoing, the State Officials have failed to
carry their burden and thus demonstrate that a stay is warranted based on an
application of the Nken factors.
                                   CONCLUSION
      For the foregoing reasons, I respectfully dissent from the majority’s refusal
to grant the State Officials’ request to order Pullman abstention in this case by
reversing the district court’s judgment and remanding the case to it for federal-
court abstention; from the majority’s improper use of the doctrines of sovereign
immunity and Pullman abstention in its Nken analysis; from its determination
that sovereign immunity bars the district court’s injunction issued to restrain the
State Officials from doing nothing more than violating federal law embodied in
the district court’s desegregation consent decree and orders; and from its

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                                  No. 12-31218

erroneous determination that the State Officials satisfied their burden with
respect to all four factors under Nken.




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