Full Opinion (html_with_citations)

Case: 23-30063    Document: 00516999676       Page: 1    Date Filed: 12/13/2023




          United States Court of Appeals
               for the Fifth Circuit
                                                                    United States Court of Appeals
                                                                             Fifth Circuit


                              ____________                                 FILED
                                                                   December 13, 2023
                               No. 23-30063                           Lyle W. Cayce
                              ____________                                 Clerk

   Vernon Smith, etc.,

                                                                    Plaintiff,

   United States of America,

                                               Intervenor Plaintiff—Appellee,

                                    versus

   School Board of Concordia Parish,

                                                        Defendant—Appellee,

                                    versus

   Delta Charter Group, Incorporated,

                                          Intervenor—Appellant.
                 ______________________________

                 Appeal from the United States District Court
                    for the Western District of Louisiana
                          USDC No. 1:65-CV-11577
                 ______________________________

   Before Wiener, Willett, and Douglas, Circuit Judges.
   Don R. Willett, Circuit Judge:
Case: 23-30063         Document: 00516999676              Page: 2       Date Filed: 12/13/2023




                                          No. 23-30063


           Delta Charter Group, Inc., operates a public charter school within
   Concordia Parish in Louisiana. In 2018, Delta, the Concordia Parish School
   Board, and the United States jointly moved for entry of a consent order
   requiring Delta to implement a race-based enrollment process, consistent
   with an ongoing desegregation plan in Concordia. Four years later, Delta
   moved to discontinue the use of race in the 2018 Consent Order, arguing that
   it was unconstitutional. The district court declined to modify the order under
   Federal Rule of Civil Procedure 60(b)(5). Delta appealed. Because Delta
   forfeited any argument that the district court abused its discretion, we
   AFFIRM.
                                                I
           This case begins in 1965, before two members of this panel were even
   born. In that year, plaintiffs—no longer active in this litigation—sued the
   Concordia Parish School Board for operating segregated schools in violation
   of the Fourteenth Amendment. The district court ultimately approved a
   desegregation plan. Some 50 years later, the Board has yet to achieve unitary
   status 1 and remains subject to the district court’s continued jurisdiction and
   supervision.
           In 2012, Delta Charter Group, Inc., intervened in the Board’s ongoing
   desegregation case for approval to operate a public charter school within
   Concordia Parish. 2 The district court entered a consent order in 2013 that

           _____________________
           1
            That is, the district court has yet to determine that the school district has
   (1) “complied in good faith with desegregation orders for a reasonable amount of time,”
   and (2) “has eliminated the vestiges of prior de jure segregation to the extent practicable.”
   Anderson v. Sch. Bd. of Madison Cnty.,
517 F.3d 292, 297
 (5th Cir. 2008).
           2
            Under Louisiana law, charter schools “shall . . . [b]e subject to any court-ordered
   desegregation plan in effect for the city or parish school system.” La. Rev. Stat.
   § 17:3991C(3). Although the statute does not state that charter schools such as Delta must
   intervene in an ongoing desegregation case, intervention has become the default. See, e.g.,




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                                          No. 23-30063


   authorized Delta to open its school and obligated it to, among other things,
   comply with the Board’s desegregation decree and not hinder the Board’s
   own compliance. 3
           About a year after Delta opened its doors, the Board alleged that Delta
   violated the 2013 Consent Order. The district court held a hearing in
   February 2017, following years of discovery and failed negotiations. Just three
   days before, Delta moved for relief from the race-based enrollment
   requirements in the 2013 Consent Order and, in the alternative, urged the
   district court to dismiss Concordia’s motion for relief. Delta argued in part
   that the 2013 Consent Order’s race-based policies were unconstitutional
   under the Supreme Court’s 2007 decision in Parents Involved in Community
   Schools v. Seattle School District No. 1.4 The district court declined to consider
   Delta’s eleventh-hour arguments, found that Delta had violated the Consent
   Order, and entered relief for the Board. Delta appealed, and we affirmed,
   making just one revision to the district court’s ordered relief. 5
           Delta, the Board, and the United States (a Plaintiff–Intervenor)
   meanwhile jointly moved for entry of a second consent order to adjust Delta’s
   enrollment process. The district court entered the proposed order in 2018.
   The 2018 Consent Order, still in effect, outlines an Enrollment Process by

           _____________________
   Cleveland v. Union Par. Sch. Bd.,
570 F. Supp. 2d 858, 866
 (W.D. La. 2008) (stating that
   the school “properly sought to intervene in this matter pursuant to Louisiana Revised
   Statute 17:3991C(3)”).
           3
            Delta is a Type 2 charter school under Louisiana law, which means that Delta can
   draw students from anywhere in Louisiana and is funded by the state. La. Rev. Stat.
   §§ 17:3973(2)(b)(ii), 17:3995(A)(1).
           4
551 U.S. 701
 (2007).
           5
            Smith v. Sch. Bd. of Concordia Par.,
906 F.3d 327, 336
 (5th Cir. 2018) (vacating the
   requirement that Delta obtain authorization before enrolling students from other parishes
   but otherwise affirming the district court’s order).




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                                          No. 23-30063


   which Delta must give “the highest enrollment preference . . . to black
   students” and adhere to other race-based enrollment rules.
           Four years later, Delta urged the district court to discontinue the race-
   based Enrollment Process, which it argued has always been unconstitutional
   under Parents Involved. The district court construed Delta’s motion as a
   request to modify the 2018 Consent Order under Rule 60(b)(5). It held that
   Delta did not carry its burden for modifying the 2018 Consent Order because
   Delta had not alleged any “change in factual or legal circumstances or
   [evidence] that the 2018 Consent Order is failing to achieve its intended
   result of effectively ensuring Delta’s operation of Delta Charter School does
   not undermine Concordia’s desegregation efforts.” “Delta’s reliance on a
   fifteen-year-old plurality opinion in [Parents Involved],” the district court
   explained, “certainly fails to rise to the kind of significant legal change the
   Supreme Court contemplated . . . .” In a footnote, the court rejected Delta’s
   constitutional argument on the merits. Delta appealed. 6
           Before Delta filed its reply brief, the Supreme Court decided Students
   for Fair Admissions, Inc. v. President & Fellows of Harvard College (“SFFA”). 7
   We requested supplemental briefing from the parties to determine what
   effect, if any, SFFA had on this case.




           _____________________
           6
             On May 6, 2022, Delta moved for dismissal from the ongoing desegregation case
   because (1) it was “not undermining the desegregation obligations of the Concordia Parish
   Schools,” (2) it “has complied with the Orders of th[e] [district] Court,” and (3) “the race-
   based lottery program is unconstitutional.” During a status conference with the district
   court, Delta agreed to file a different motion to narrow its requested relief to just one
   issue—the discontinuance of race in the admissions process. That narrower motion is the
   one at issue in this appeal. The district court denied as moot Delta’s motion to dismiss.
           7
600 U.S. 181
 (2023).




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                                            No. 23-30063


                                                  II
           District courts can modify or dissolve a consent decree under
   Rule 60(b)(5) if “applying [the decree] prospectively is no longer
   equitable.” 8 But the party seeking modification must show “a significant
   change either in factual conditions or in law.” 9 It’s enough, for example, that
   (1) “changed factual conditions make compliance with the decree
   substantially more onerous,” (2) the “decree proves to be unworkable
   because of unforeseen obstacles,” or (3) “enforcement of the decree without
   modification would be detrimental to the public interest.” 10 A party seeking
   modification based on a significant change in facts must also “show that those
   [factual] changes affect compliance with, or the workability or enforcement
   of, the final judgment, and . . . that those changes occurred despite [their]
   reasonable efforts to comply with the judgment.” 11 After the movant satisfies
   its burden, the district court must then “consider whether the proposed
   modification is suitably tailored to the changed circumstance” 12 and “take a
   flexible approach to [modification].” 13




           _____________________
           8
             Fed. R. Civ. P. 60(b)(5); see, e.g., Rufo v. Inmates of Suffolk Cnty. Jail,
502 U.S. 367, 383
 (1992); Frazar v. Ladd,
457 F.3d 432
, 435–41 (5th Cir. 2006).
           9
                Rufo,
502 U.S. at 384
.
           10
Id.
 at 384–85.
           11
                Cooper v. Noble,
33 F.3d 540, 544
 (1994).
           12
              League of United Latin Am. Citizens, Dist. 19 v. City of Boerne,
659 F.3d 421, 437
   (5th Cir. 2011) (quoting Rufo,
502 U.S. at 383
).
           13
Id.




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                                             No. 23-30063


           “We review a district court’s decision to grant or deny relief pursuant
   to Rule 60(b) for abuse of discretion.” 14 And we review de novo any
   underlying questions of law. 15
                                                  III
           We begin, and end, this appeal by considering whether Delta has even
   preserved any argument that the district court abused its discretion in
   denying relief under Rule 60(b)(5). “A party forfeits an argument . . . by
   failing to adequately brief the argument [in its opening brief] on appeal.” 16
   “To be adequate, a brief must address the district court’s analysis and
   explain how it erred.” 17 We have held that briefing was adequate, even if
   “sparse,” when it “include[d] the standard of review, discusse[d] applicable
   law, and explain[ed] how [the appellant] believe[d] the district court
   erred.” 18 By contrast, we have held that parties forfeited arguments by “not
   attempt[ing] to rebut” the district court’s conclusions 19 or by failing to cite




           _____________________
           14
                Frew v. Janek,
780 F.3d 320, 326
 (5th Cir. 2015).
           15
Id.
           16
             Rollins v. Home Depot USA,
8 F.4th 393, 397
 (5th Cir. 2021); see also Tex.
   Democratic Party v. Benkiser,
459 F.3d 582, 594
 (5th Cir. 2006) (“We need not consider this
   argument because the [party] effectively [forfeited] it by failing to raise it in its opening
   brief.”).
           17
                Guillot ex rel. T.A.G. v. Russell,
59 F.4th 743, 751
 (5th Cir. 2023) (citation
   omitted).
           18
                United States v. Teijeiro,
79 F.4th 387
, 394 n.1 (5th Cir. 2023).
           19
                Russell,
59 F.4th at 751
.




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                                                No. 23-30063


   the provisions at issue in the opening brief and “explain why the [district]
   court was wrong about what those provisions permit.” 20
           Delta did not heed these admonitions and settled briefing
   requirements. Its opening brief barely “address[ed] the district court’s
   analysis” and wholly neglected to “explain how it erred.” 21 Delta referenced
   Rule 60(b)(5) only once, made zero mention of the applicable abuse-of-
   discretion standard of review, and summarized the district court’s analysis in
   two short paragraphs—only to never discuss it again. 22 Delta merely repeated
   the same argument it raised below: that the 2018 Consent Order’s
   Enrollment Process has always been unconstitutional under Parents Involved.
   Nowhere did Delta explain how the district court erred in denying
   modification—that is, Delta failed to identify any facts or law raised to the
   district court that have changed significantly since 2018 and would thus
   justify relief. 23
           Consider Delta’s stark lack of briefing on the two primary bases for
   Rule 60(b)(5) relief: changed facts and changed law. Delta did not argue in its
   opening brief that the district court failed to account for significantly changed
   facts that justify modification. To the extent Delta argued changed facts in its
   reply or supplemental briefs or at oral argument, it’s still forfeited. 24 Delta


           _____________________
           20
                SEC v. Hallam,
42 F.4th 316
, 326–27 (5th Cir. 2022).
           21
                See Russell,
59 F.4th at 751
 (citation omitted).
           22
                See Teijeiro,
79 F.4th at 394
 n.1.
           23
                See Russell,
59 F.4th at 751
.
           24
             See Benkiser,
459 F.3d at 594
. Indeed, we think Delta likely couldn’t argue on
   appeal that the district court failed to account for changed facts because Delta did not
   mention a single changed fact in its motion before the district court. So even if we
   concluded that Delta adequately briefed a change-of-fact argument to us, Delta’s
   inadequate presentation to the district court could be an independent ground for forfeiture.




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                                               No. 23-30063


   likewise forfeited any argument that the district court abused its discretion
   by failing to consider a significant change in the law. Delta has staunchly
   maintained—before the district court and on appeal—that the 2018
   Enrollment Process is unconstitutional under the Supreme Court’s 2007
   decision in Parents Involved. Because Parents Involved was decided before
   Delta sought entry of the 2018 Consent Order, it’s not a “significant [legal]
   change[] occurring during the life of the decree” 25—and therefore can’t
   justify modification under Rufo. Nor did Delta argue in its reply or
   supplemental briefs or at oral argument that the Supreme Court’s
   intervening decision in SFFA effected a “significant change . . . in law.” 26
   Rather, counsel for Delta said plainly at oral argument that they are “not of
   the position that [SFFA] significantly changed the law” and that SFFA
   merely “clarifies” and adds “emphasis” to the law under Parents Involved.
   That SFFA “clarifies” and adds “emphasis” doesn’t show a “significant”
   change in the law—or any change, for that matter. 27 Delta has thus forfeited
   any argument that the district court abused its discretion in holding that there
   was no significant change in the law. 28
           There are a handful of related grounds for modification—but Delta
   has forfeited all of those, too. Delta does not argue that any party was
   mistaken as to the state of the law when it sought approval of the consent
           _____________________
   See Rollins,
8 F.4th at 397
 (“A party forfeits an argument by failing to raise it in the first
   instance in the district court . . . .”).
           25
                Rufo,
502 U.S. at 380
.
           26
             See
id. at 384
; Am. Int’l Specialty Lines Ins. Co. v. Res-Care Inc.,
529 F.3d 649
, 661
   n.28 (5th Cir. 2008) (noting that this court has considered arguments that the appellant
   “raised for the first time in a supplemental brief where there has been an intervening court
   decision”).
           27
                See Rufo,
502 U.S. at 384
.
           28
                See Rollins,
8 F.4th at 397
.




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                                         No. 23-30063


   decree in 2018. 29 Indeed, Delta raised a similar constitutional argument in
   2017 against the 2013 Consent Order and thus undeniably knew of the law
   that it now attempts to wield against its 2018 obligations. Delta likewise
   doesn’t argue that the “decree [is] not meeting its intended purpose” or that
   the “initial remedy ha[s] failed.” 30 Delta has thus forfeited any argument that
   the district court abused its discretion in failing to modify the 2018 Consent
   Order on these alternative grounds.
           Delta dismisses this forfeiture rule as “nothing more than technical
   sophistry,” urging us to review the constitutionality of the Enrollment
   Process without regard to the Rule 60(b)(5) standard. Our authority is not so
   freewheeling. Our rules governing forfeiture and standards of review are just
   that—rules—and they bind us and all parties alike. We cannot grant special
   absolutions, no matter our view of the underlying merits. 31 Overlooking
   Delta’s forfeiture would, in turn, require us to raise arguments on Delta’s
   behalf and carry Delta’s burden under Rufo. That is not our role.
                                              IV
           In its effort to elude the Rule 60(b)(5) standard entirely, Delta takes
   one more swing—and misses. Delta also forfeited its argument that the
   district court should have instead applied Rule 54(b). Delta didn’t include
   this argument in its “Statement of the Issue” or in the body of its opening

           _____________________
           29
             See Ibarra v. Tex. Emp. Comm’n,
823 F.2d 873, 879
 (5th Cir. 1987) (considering
   whether a party to the consent decree made a unilateral mistake, which the court said is “a
   ground for voiding a consent decree”).
           30
              League of United Latin Am. Citizens,
659 F.3d at 438
 (citing Police Ass’n of New
   Orleans ex rel. Cannatella v. New Orleans,
100 F.3d 1159, 1168
 (5th Cir. 1996) and United
   States v. United Shoe Mach. Corp.,
391 U.S. 244, 249, 252
 (1968)).
           31
            See Rollins,
8 F.4th at 398
 (“Courts should not selectively address forfeited
   arguments . . . .”).




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   brief—rather, Delta relegated it to a footnote. We have repeatedly cautioned
   that arguments appearing only in footnotes are “insufficiently addressed in
   the body of the brief” and are thus forfeited. 32 Delta’s Rule 54(b) argument
   meets this predictable fate.
                                                V
           We do not—indeed, cannot—offer any opinion on the underlying
   constitutional merits. Delta forfeited any available argument that the district
   court should have applied Rule 54(b) and that it abused its discretion in
   denying relief under Rule 60(b)(5). Accordingly, we AFFIRM.




           _____________________
           32
               See Arbuckle Mountain Ranch of Tex., Inc. v. Chesapeake Energy Corp.,
810 F.3d 335
, 339 n.4 (5th Cir. 2016) (“Arguments subordinated in a footnote are ‘insufficiently
   addressed in the body of the brief,’ and thus are [forfeited].” (citation omitted)); see also
   Quick Techs., Inc. v. Sage Grp. PLC,
313 F.3d 338
, 343 n.3 (5th Cir. 2002) (“[T]his argument
   is not listed in the ‘Statement of Issues Presented for Appeal,’ nor addressed in the body
   of the brief, thus it is deemed [forfeited].”); Bridas S.A.P.I.C. v. Gov’t of Turkm.,
345 F.3d 347
, 356 n.7 (5th Cir. 2003) (“Arguments that are insufficiently addressed in the body of
   the brief, however, are [forfeited].”).




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