CARLA FREW CHARLOTTE GARVIN CLASS MEMBERS NICOLE CARROLL MARIA AYALA MARY JANE GARZA v. KYLE JANEK DAVID LAKEY (2016)

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, 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.

FOOTNOTES

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).

PER CURIAM: