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

                                                                          FILED
                                                                       June 15, 2016
                                      No. 15-30652
                                                                       Lyle W. Cayce
                                                                            Clerk
LUTHER SCOTT, JR., for himself and all other persons similarly situated;
LOUISIANA STATE CONFERENCE OF THE NAACP, for themselves and
all other persons similarly situated,

               Plaintiffs - Appellees

v.

TOM SCHEDLER, in his official capacity as the Louisiana Secretary of State,

               Defendant - Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:11-CV-926


Before BENAVIDES, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       This appeal concerns the specificity required of injunctions.                   Tom
Schedler, in his capacity as the Louisiana Secretary of State, appeals the
imposition of an amended permanent injunction that requires him to
“maintain in force” his “policies, procedures, and directives” related to the
coordination and enforcement of the National Voter Registration Act (“NVRA”


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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or “the Act”), 52 U.S.C. § 20501 et seq., in Louisiana. Schedler argues that the
injunction fails to satisfy the specificity requirements of Federal Rule of Civil
Procedure 65(d) and is insufficiently tailored to address the injury the plaintiff
has established. Because we agree with Schedler that the injunction at issue
is insufficiently specific, we VACATE the injunction and REMAND to the
district court to set out in greater detail the acts being restrained or required.
                                              I.
      Plaintiffs Roy Ferrand, 1 Luther Scott, and the Louisiana State
Conference of the NAACP (“NAACP”) filed the underlying complaint in this
case in April 2011, naming as defendants the Louisiana Secretary of State, the
Secretary of the Louisiana Department of Children & Family Services
(“DCFS”), and the Secretary of the Louisiana Department of Health &
Hospitals (“DHH”), all in their official capacities. The plaintiffs alleged that
the Secretaries of DCFS and DHH had violated Section 7 of the NVRA by
failing to offer voter registration services to all people who applied for,
renewed, or changed their addresses in connection with public assistance
benefits and that defendant Tom Schedler, the Louisiana Secretary of State,
had violated the NVRA by failing to coordinate the state’s responsibilities
under the Act. The NAACP and Schedler are the only parties to this appeal.
      After a bench trial, the district court issued its findings of fact and
conclusions of law, holding that the Secretary of DCFS, the Secretary of DHH,
and Schedler had violated the NVRA in various ways. As to Schedler, the
district court found that he had provided inconsistent and inaccurate training
to agencies such as DHH and DCFS, and that other than providing training
and publishing materials, Schedler had not engaged in measures to ensure
public assistance offices were complying with their NVRA responsibilities.


      1   Plaintiff Roy Ferrand later voluntarily withdrew from the suit.
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Further, and contrary to Schedler’s arguments, the district court determined
that Schedler was responsible for actively enforcing the NVRA and
coordinating that enforcement in Louisiana. The district court noted that the
defendants had made substantial strides toward complying with the NVRA
since the lawsuit’s inception, but also entered a permanent injunction against
Schedler and the Secretaries of DCFS and DHH. The district court enjoined
Schedler 2 as follows:
      That the Secretary of State is directed to maintain in force and
      effect his or her policies, procedures, and directives, as revised,
      relative to the implementation of the National Voter Registration
      Act with respect [to] coordination of the National Voter
      Registration Act within Louisiana. As to any program for which
      the Secretary has not achieved substantial compliance with the
      provisions of the National Voter Registration Act, 42 U.S.C.
      § 1973gg, et. seq.,[3] the Secretary is directed to implement such
      policies, procedures, and directives as to each program no later
      than March 15, 2013, and certify such compliance to this Court.
As directed, Schedler certified to the district court his compliance with the
permanent injunction in March 2013. Schedler certified, inter alia, that he
had adopted specific emergency rules for voter registration at designated
agencies, revised the form given to public assistance clients, prepared an
instruction manual for mandatory voter registration agencies that provide
public assistance, prepared a presentation for trainings at registration
agencies, selected a Secretary of State NVRA Coordinator, and initiated the
required procedures for final adoption of the emergency rules.




      2  The injunction’s application to the Secretary of DCFS and the Secretary of DHH is
not relevant to this appeal, as the Secretaries of DCFS and DHH have not challenged the
injunction.
      3  The NVRA, previously codified under 42 U.S.C. § 1973gg, et seq., has been
transferred to 52 U.S.C. § 20501, et seq.
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                                   No. 15-30652
      Schedler appealed the district court’s partial grant of summary
judgment in favor of the plaintiffs and the imposition of the permanent
injunction. A panel of this court decided the appeal in November 2014. Scott
v. Schedler, 771 F.3d 831 (5th Cir. 2014). First, the panel held that plaintiff
Luther Scott was not entitled to any relief because he had failed to satisfy the
NVRA’s notice requirement. Id. at 836. Second, the panel held that the
NAACP had standing to challenge Schedler’s enforcement of the NVRA only
as to in-person transactions. Id. at 837. Third, the panel affirmed the district
court’s conclusion that Schedler was required to coordinate and enforce
Louisiana’s compliance with the NVRA. Id. at 839. In so holding, the panel
rejected Schedler’s argument that his responsibilities were limited to the one-
time implementation of the NVRA and instead affirmed the district court’s
holding that Schedler was responsible for actively enforcing the NVRA. Id. at
838-39.   Last, the panel held that the NVRA does not require benefits
applicants to be given voter registration forms if they leave blank a
“declination form” that asks whether they wish to register to vote. Id. at 841.
The panel thus vacated in part and affirmed in part the injunction as to
Schedler, and remanded the case to the district court to modify the injunction
in accordance with the panel opinion. Id. at 841-42. The panel explicitly did
“not consider Schedler’s arguments regarding . . . the breadth of the district
court’s injunction.” Id. at 841.
      On remand, after submissions from both sides and oral argument, the
district court entered the Amended Permanent Injunction.           The amended
injunction states, “[t]he Fifth Circuit held that this Court lacked jurisdiction
to consider Plaintiffs’ challenge related to remote transactions and that the
Court’s decision regarding the effect of checking neither box on the declination
form was incorrect. The Court’s Injunction was affirmed in all other respects.”
The Amended Permanent Injunction further states that as “previously held,
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                                  No. 15-30652
and the Fifth Circuit affirmed, Schedler has violated certain requirements of
the [NVRA], specifically including his obligation to coordinate and to enforce
[NVRA] compliance for relevant agencies and offices in Louisiana.”
Accordingly, the district court ordered:
      That, in accord with the Fifth Circuit Opinion issue[d] in this
      matter, the Secretary of State is directed to maintain in force and
      effect his or her policies, procedures, and directives, as revised,
      relative to the implementation of the [NVRA] with respect [to]
      coordination of the [NVRA] within Louisiana.
Schedler timely appealed the district court’s imposition of the Amended
Permanent Injunction.
                                       II.
      As a general matter, we “review the trial court’s granting or denial of [a]
permanent injunction for abuse of discretion.” Peaches Entm’t Corp. v. Entm’t
Repertoire Assocs., 62 F.3d 690, 693 (5th Cir. 1995). The review of a permanent
injunction is segmented, such that “we will review the district court’s findings
of fact under the clearly erroneous standard, and the conclusions of law under
the de novo standard.” Id. Where, as here, “the district court’s decision turns
on the application of statutes or procedural rules, our review of that
interpretation is de novo.” United States v. Holy Land Found. for Relief & Dev.,
493 F.3d 469, 472 (5th Cir. 2007); see also Signtech USA, Ltd. v. Vutek, Inc.,
174 F.3d 1352, 1356 (Fed. Cir. 1999) (“[W]hether the terms of the injunction
fulfill the mandates of FED. R. CIV. P. 65(d) is a question of law that this court
reviews de novo.”).
                                       III.
      The only issues on appeal are whether the district court’s Amended
Permanent Injunction is (1) sufficiently specific to give notice of its terms and
(2) tailored to remedy the established violations.         Federal Rule of Civil
Procedure 65(d)(1) contains three requirements: an order granting an

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injunction must “(A) state the reasons why it issued; (B) state its terms
specifically; and (C) describe in reasonable detail—and not by referring to the
complaint or other document—the act or acts restrained or required.” Schedler
challenges the injunction’s compliance with subparts (B) and (C).
      As have many defendants challenging injunctions, Schedler argues that
the instant injunction is both vague and overbroad. See, e.g., Doe v. Veneman,
380 F.3d 807, 813 (5th Cir. 2004) (analyzing challenge to injunction as vague
and overbroad); Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 50-52 (2d Cir.
1996) (same). “Analytically, the broadness of an injunction refers to the range
of proscribed activity, while vagueness refers [to] the particularity with which
the proscribed activity is described.” U.S. Steel Corp. v. United Mine Workers
of Am., 519 F.2d 1236, 1246 n.19 (5th Cir. 1975). “‘Vagueness’ is a question of
notice, i.e., procedural due process, and ‘broadness’ is a matter of substantive
law.” Id. Thus, an injunction is overly vague if it fails to satisfy the specificity
requirements set out in Rule 65(d)(1), and it is overbroad if it is not “narrowly
tailor[ed] . . . to remedy the specific action which gives rise to the order” as
determined by the substantive law at issue. Veneman, 380 F.3d at 818.
      As explained above, to comply with Rule 65(d) “[t]he district court’s order
granting the injunction must ‘state its terms specifically’ and ‘describe in
reasonable detail’ the conduct restrained or required.” Daniels Health Scis.,
L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d 579, 586 (5th Cir. 2013)
(quoting FED. R. CIV. P. 65(d)). The drafting standard has been described as
“that an ordinary person reading the court’s order should be able to ascertain
from the document itself exactly what conduct is proscribed.” U.S. Steel Corp.,
519 F.2d at 1246 n.20 (quoting WRIGHT & MILLER, FEDERAL PRACTICE &
PROCEDURE § 2955 at 536-37 (1973)). “The rule embodies the elementary due
process requirement of notice.” Id. at 1246. The Supreme Court has repeatedly
emphasized that “the specificity provisions of Rule 65(d) are no mere technical
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                                   No. 15-30652
requirements.” Schmidt v. Lessard, 414 U.S. 473, 476 (1974). “The Rule was
designed to prevent uncertainty and confusion on the part of those faced with
injunctive orders, and to avoid the possible founding of a contempt citation on
a decree too vague to be understood.” Id.
      Schedler argues that the Amended Permanent Injunction is too vague to
be understood because he “is not aware of any policies, procedures or directives
maintained by the office of the Secretary of State, particularly any ‘as revised’
that the court might refer to in its order.”          The NAACP responds that
Schedler’s alleged ignorance is undermined by the fact that Schedler expressly
certified his compliance with the terms of the original injunction, which, like
the Amended Permanent Injunction, required Schedler to “maintain in force
and effect his . . . policies, procedures, and directives, as revised, relative to the
implementation of the [NVRA] with respect [to] coordination of the [NVRA]
within Louisiana.” In his certification, Schedler listed a number of specific
policies, procedures, and directives intended to coordinate and enforce the
NVRA. The NAACP acknowledges, however, that Schedler is not estopped
from arguing in a subsequent appeal that he does not understand the Amended
Permanent Injunction. Schedler maintains that his certification of compliance
merely reflected a good-faith effort to comply with the original injunction but
did not waive the specificity requirements set out in Rule 65(d).
      Particularly useful to our analysis of the Amended Permanent
Injunction’s specificity is the Ninth Circuit’s decision in Thomas v. County of
Los Angeles, 978 F.2d 504 (9th Cir. 1992), as amended (Feb. 12, 1993). There,
a class of predominately black and Hispanic residents of Lynwood, California,
brought a § 1983 suit alleging that deputy sheriffs at the Lynwood station of
the Los Angeles County Sherriff’s Department had been targeting minorities
for excessive force and illegal searches. Id. at 505-06. The district court issued
an injunction ordering the Los Angeles Sheriff’s Department to, among other
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things, “[f]ollow the Department’s own stated policies and guidelines regarding
the use of force and procedures for conducting searches.” Id. at 506. In
addition to reversing the injunction as unsupported by adequate findings of
fact, the Ninth Circuit held that the injunction failed to satisfy Rule 65(d)
because it did not define the “department policies and guidelines for conducting
searches and for the use of force” that the Department was ordered to follow.
Id. at 509.    Thus, the Ninth Circuit concluded that a reference to the
Department’s own policies and guidelines for searches and use of force was
overly vague, even though one might expect a sheriff’s department to be
familiar with its own policies on these matters. See id.
      The injunction at issue here is analogous to that in Thomas, as it simply
directs Schedler to maintain in force and effect his policies, procedures, and
directives for implementation of the NVRA with respect to coordination of the
NVRA. That is, the injunction refers generally to the defendant’s policies
without defining what those policies are or how they can be identified. See id.
Schedler vigorously contests the suggestion that he can be expected to know
what “policies, procedures, and directives, as revised,” the injunction
references, and the fact that the referenced policies are Schedler’s own does
not suffice to satisfy Rule 65(d). See id.; see also U.S. Steel Corp., 519 F.2d at
1246-47 (holding that injunction violated Rule 65(d) in spite of incorporating
the parties’ own contract language). An injunction should not contain broad
generalities. See Peregrine Myanmar, 89 F.3d at 50, 52-53 (vacating as vague
a catch-all paragraph of an injunction requiring the appellant to “take all other
reasonably needful actions to facilitate” a general result).       Moreover, an
injunction must describe in reasonable detail the acts restrained or required
“not by referring to . . . [any] other document.” FED. R. CIV. P. 65(d)(1)(C).
Here, the district court simply ordered Schedler to maintain in place certain
undefined policies, procedures, and directives.         Because the Amended
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Permanent Injunction fails to define the “policies, procedures, and directives”
it requires Schedler to maintain in force and effect, the injunction lacks the
specificity required by Rule 65(d). See Thomas, 978 F.2d at 509; U.S. Steel
Corp., 519 F.2d at 1246-47.
      We are sensitive, of course, to the district court’s difficult position. The
district court cannot be expected to act as an executive or legislative agent of
the state, dictating with intricate precision the policies the state should adopt
in order to fulfill its statutory obligations. See Meyer v. Brown & Root Constr.
Co., 661 F.2d 369, 373 (5th Cir. 1981) (“The specificity requirement is not
unwieldy . . . . An injunction must simply be framed so that those enjoined will
know what conduct the court has prohibited.”).          The district court also,
however, may not issue an injunction that references other documents or is
written in terms too vague to be readily understood. See FED. R. CIV. P.
65(d)(1); Veneman, 380 F.3d at 819-20 (reversing as vague a portion of an
injunction that prevented the government defendants from disclosing
“personal information” but left to the defendants the task of determining what
combination of information would amount to “personal information”).
      Our opinion in Gulf King Shrimp Co. v. Wirtz, 407 F.2d 508 (5th Cir.
1969), offers a helpful comparison. There, a district court found an employer
had violated child labor laws and issued an injunction against further
infractions. Id. at 511. The district court ordered that the employer “shall not
fail to make, keep and preserve records of its employees and of the wages, hours
or other conditions and practices of employment maintained by it, as
prescribed by the Regulations of the Administrator . . .” and “shall not,
contrary to Sections 12 and 15(a)(4) of the [Fair Labor Standards] Act, employ
any oppressive child labor (as defined in Section 3(l) of the Act) in interstate
commerce or in the production of goods for interstate commerce.” Id. at 517
n.10. On appeal, we held that the injunction complied with the specificity
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requirements of Rule 65(d).       Gulf King Shrimp, 407 F.2d at 517.          We
emphasized that although the injunction specifically referenced the Fair Labor
Standards Act, it did “not engraft the statute in gross” or “rely on the statute
for clarification of what [was] otherwise unclear in the decree itself.” Id. “It
merely supplement[ed] specific instructions in the decree with the statutory
authority from which the right to issue such instructions derive[d].” Id. The
same cannot be said of the Amended Permanent Injunction here.                 The
Amended Permanent Injunction runs afoul of Rule 65(d)(1) not because it
references the NVRA, but because it fails to “describe in reasonable detail—
and not by referring to the complaint or other document—the act or acts
restrained or required.” See id. It refers to Schedler’s “policies, procedures,
and directives” regarding the NVRA not for context but for content.           Put
simply, the injunction lacks the requisite specificity and detail because it does
not clearly define the policies, procedures, and directives that it orders
Schedler to maintain in force.
      We conclude that the Amended Permanent Injunction’s terms are overly
vague and remand for clarification; we thus do not have occasion to opine on
whether the injunction is also overbroad. We merely remind the district court
that its injunction may not encompass more conduct than was requested or
exceed the legal basis of the lawsuit. See Veneman, 380 F.3d at 819. As a
result, the district court must make plain that the injunction’s scope is limited
to Schedler’s enforcement of the NVRA as to in-person transactions. See Scott,
771 F.3d at 837. We also decline Schedler’s invitation to modify the injunction
ourselves. The district court is well-versed in the intricacies of this lawsuit
and has not previously been tasked with modifying the injunction for
specificity or breadth. Accordingly, we will remand this case to the district
court for modification of the injunction in the first instance.


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                                No. 15-30652
                                     IV.
      For the reasons detailed above, we hold that the Amended Permanent
Injunction as written does not satisfy the specificity requirements outlined in
Federal Rule of Civil Procedure 65(d). We therefore VACATE the Amended
Permanent Injunction and REMAND this case to the district for modification
of the Amended Permanent Injunction in accordance with this opinion.




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