     Case: 15-40229   Document: 00513745166     Page: 1   Date Filed: 11/03/2016




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

                                                                     FILED
                                                                November 3, 2016
                                 No. 15-40229
                                                                  Lyle W. Cayce
                                                                       Clerk
CARLA FREW; CHARLOTTE GARVIN, as next friend of her minor children
Johnny Martinez, Brooklyn Garvin and BreAnna Garvin; CLASS
MEMBERS; NICOLE CARROLL, Class Representative; MARIA AYALA, as
next friend of her minor children, Christopher Arizola, Leonard Jimenez, and
Joseph Veliz; MARY JANE GARZA, as next friend of her minor children,
Hilary Garza and Sarah Renea Garza,

             Plaintiffs - Appellants

v.

M.D. KYLE JANEK; M.D. DAVID L. LAKEY,

             Defendants - Appellees




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


Before HIGGINBOTHAM, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:
      The Parties’ Petitions for Panel Rehearing are DENIED and no member
of this panel nor judge in regular active service on the court having requested
that the court be polled on Rehearing En Banc, (FED R. APP. P. and 5TH CIR.
R. 35), Appellees’ Petition for Rehearing En Banc is also DENIED.
      On remand, the district court may consider the vacated portions of its
order under either prong 1 of Rule 60(b)(5) (the judgment has been satisfied,
     Case: 15-40229       Document: 00513745166          Page: 2     Date Filed: 11/03/2016


                                       No. 15-40229

released, or discharged), prong 3 of Rule 60(b)(5) (applying it prospectively is
no longer equitable), or both. 1 We were unable to determine whether the able
district court’s decision under prong 1 or prong 3 of Rule 60(b)(5) would have
been the same with the “shortage” metric that this Court found controlled.
Given the considerable flexibility accorded state implementation of its policies
with attendant protected deference, the Supreme Court in Horne left to courts
under Rule 60(b)(5), and district courts in the first instance, to make that call.
The deference in turn due to the presiding district court judge reflects its
greater appreciation of the consent decree in operation and, nuances aside, its
ability to decide if the decree has lived its life—leaving attending, ongoing
societal ills to the political processes of today.
       As for Appellees’ argument as it relates to prong 1 that they do not have
the information to analyze the second part of the panel opinion’s “shortage”
metric (average client load of the relevant class of provider), we disagree. Like
the parties in Frew v. Gilbert 2 and Frew v. Hawkins, 3 the parties here may use
witnesses, and/or develop other methods for retrieving the necessary
information, should the district court find the inquiry necessary.
       The other arguments raised by the parties in their petitions for panel
rehearing are unpersuasive.




       1  See Horne v. Flores, 557 U.S. 433, 454 (2009) (“Use of the disjunctive ‘or’ [in Rule
60(b)(5)] makes it clear that each of the provision’s three grounds for relief is independently
sufficient and therefore that relief may be warranted even if petitioners have not ‘satisfied’
the original order.”).
        2 109 F. Supp. 2d 579, 604 (E.D. Tex. 2000), vacated sub nom. Frazar v. Gilbert, 300

F.3d 530 (5th Cir. 2002), rev’d sub nom. Frew ex rel. Frew v. Hawkins, 540 U.S. 431 (2004).
        3 401 F. Supp. 2d 619, 656–57 (E.D. Tex. 2005), aff'd sub nom. Frazar v. Ladd, 457

F.3d 432 (5th Cir. 2006).
                                              2
