RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0231p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

PEOPLE FIRST OF TENNESSEE, on behalf of all

its members,

Intervenors-Appellees,

PARENT-GUARDIAN ASSOCIATIONS OF

ARLINGTON DEVELOPMENTAL CENTER,

Intervenor,

v.

STATE OF TENNESSEE; PHIL BREDESEN, in his

official capacity as Governor of the State of

Tennessee; VIRGINIA BETTS, in her official

capacity as Commissioner of the Department

of Mental Health and Developmental

Disabilities; M.D. GOETZ, JR., in his official

capacity as Commissioner of the Tennessee

Department of Finance and Administration;

NINA STAPLES, in her official capacity as

Chief Officer of the Arlington Developmental

Center,

Defendants-Appellants.

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No. 09-5474

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 92-02062—Bernice B. Donald, District Judge.

Argued: April 20, 2010

Decided and Filed: August 4, 2010 

Before: BOGGS, SUHRHEINRICH, and ROGERS, Circuit Judges.

1
No. 09-5474 United States v. State of Tenn., et al. Page 2

_________________

COUNSEL

ARGUED: Michael W. Kirk, COOPER & KIRK, PLLC, Washington, D.C., for Appellants.

Judith A. Gran, PUBLIC INTEREST LAW CENTER OF PHILADELPHIA, Philadelphia,

Pennsylvania, Lisa J. Stark, UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellees. ON BRIEF: Michael W. Kirk, Charles J. Cooper, Derek L. Shaffer,

Brian S. Koukoutchos, COOPER & KIRK, PLLC, Washington, D.C., Dianne S. Ducus,

OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for

Appellants. Judith A. Gran, PUBLIC INTEREST LAW CENTER OF PHILADELPHIA,

Philadelphia, Pennsylvania, Mark L. Gross, Sarah E. Harrington, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., Earle J. Schwarz, LAW OFFICE,

Memphis, Tennessee, for Appellees. 

_________________

OPINION

_________________

SUHRHEINRICH, Circuit Judge. The State of Tennessee (“State”) appeals the

district court’s denial of its motion under Federal Rule of Civil Procedure Rule 60(b)(5).

The sole issue on appeal is whether the district court abused its discretion when it refused

to vacate all outstanding court orders and consent decrees granting injunctive relief

(“injunctive relief”). This injunctive relief arises from the district court’s original 1993

ruling that the State was violating the substantive due process rights of mentally retarded

(“MR”) residents at Arlington Development Center (“ADC”), a state-operated home for MR

individuals. The State argues that this injunctive relief, which has remained in place for over

a decade, should be lifted because a significant change in law has occurred since the original

judgment. The United States Department of Justice Civil Rights Division (“United States”)

and People First of Tennessee (“People First”), a certified class of MR adults that benefits

from the injunctive relief, oppose the State’s request. For the reasons set forth below, we

AFFIRM. 

I. Background

The United States brought this suit against the State and some of its officials in

January 1992, pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C.

§ 1997. The complaint alleged, among other things, that the State failed to ensure that ADC
No. 09-5474 United States v. State of Tenn., et al. Page 3

residents received adequate medical care, were free from neglect and abuse, and were not

subject to undue bodily restraint. In support of its complaint, the United States argued that

the State was violating the substantive due process rights of the MR residents at ADC, as

established by the Supreme Court in Youngberg v. Romeo, 457 U.S. 307 (1982). In

Youngberg, the mother of an involuntarily institutionalized MR man held at a state-run

institution brought suit against the state on her son’s behalf. Id. at 310. She contended that

the state owed her son substantive due process rights under the Fourteenth Amendment

because of his involuntary confinement. Id. The Court agreed and stated that when an

individual is involuntarily institutionalized through state legal proceedings, he has a

substantive due process right to adequate food, shelter, clothing, and medical care, as well

as reasonable safety, freedom from unnecessary bodily restraint, and reasonable habilitation

(“Youngberg rights”). Id. at 324. The United States argued that sufficient state action

existed at ADC to trigger these Youngberg rights. The United States noted that the State

ultimately decided to accept an MR individual into its care, ADC was a state-run facility,

Tennessee law limited the circumstances under which a resident could be discharged from

the facility, and the State controlled “virtually every aspect of the . . . lives” of ADC

residents once admitted. 

In March 1992, the State moved to dismiss the complaint. The State argued that the

Supreme Court’s decision in DeShaney v. Winnebago County Department of Social Services,

489 U.S. 189 (1989), stood for the proposition that the State did not owe Youngberg rights

to ADC residents. In DeShaney, the mother of a boy who was rendered profoundly retarded

by his father’s beatings brought suit on the boy’s behalf against social workers and other

local officials who knew that he was at risk of injury by his father but did nothing. Id. at

191. Even though the boy was not in state custody at the time of his abuse, he claimed that

the government officials’ failure to affirmatively act to protect him from his father deprived

him of his Due Process Clause right to liberty. Id. The Court disagreed and held that

Youngberg rights did not exist in this circumstance. Id. at 201. It reasoned:

In the substantive due process analysis, it is the State’s affirmative act of

restraining the individual’s freedom to act on his own behalf–through

incarceration, institutionalization, or other similar restraint of personal

liberty–which is the deprivation of liberty triggering the protections of the
No. 09-5474 United States v. State of Tenn., et al. Page 4

Due Process Clause, not its failure to act to protect his liberty interests

against harms inflicted by other means.

Id. at 200. In reaching this conclusion, the Court limited its holding in Youngberg to “stand

only for the proposition that when the State takes a person into its custody and holds him

there against his will, the Constitution imposes upon it a corresponding duty to assume some

responsibility for his safety and general well-being.” Id. at 199-200. 

The State argued that, in accordance with DeShaney, Youngberg did not apply

because residents were not at ADC due to affirmative acts by the State. It reasoned that,

“with rare exception,” parents or other legal representatives placed residents at ADC.

Similarly, the State maintained that it did not engage in state action to involuntarily keep

ADC residents at the facility because these same parents or other legal representatives could

remove a resident at any time. 

The district court denied the State’s motion to dismiss in August 1992. United States

v. Tennessee, 798 F. Supp. 483 (W.D. Tenn. 1992). The district court discussed Youngberg

and DeShaney in detail and determined that “under certain circumstances the state has a duty

to provide services and care to institutionalized individuals[,]” such as when “a person is

institutionalized–and wholly dependent on the State.” Id. at 486. Despite the fact that

parents or other legal guardians voluntarily placed most ADC residents into the State’s care,

the court determined that the United States had alleged enough state action at ADC to

implicate Youngberg rights. Id. at 487. It noted that the State had accepted ADC residents

into its care and thus accepted responsibility for their needs. Id. The district court

emphasized Tenn. Code Ann. § 33-5-103, which mandated that, once admitted to ADC, a

resident was under the “exclusive care, custody and control of the commissioner and

superintendent.” Id. The district court further noted Tenn. Code Ann. § 33-5-101(b), which

suggested that the superintendent had discretion to deny a resident’s discharge request. Id.

at 487 n.8. Lastly, the court underscored that state actors controlled every aspect of

residents’ daily life, including treatment, care, and movement in and out of ADC. Id. at 487.

In May 1993, Tennessee repealed Tenn. Code Ann. § 33-5-103 and amended its laws

to make clear that the superintendent was required to discharge any individual within twelve

hours upon request; however, a person lacking capacity still needed a parent or other legal
No. 09-5474 United States v. State of Tenn., et al. Page 5

guardian to make this request. See Tenn. Code Ann. § 33-5-303. In July 1993, the State

filed a second motion to dismiss based upon, among other things, these changes to Tennessee

law. Nevertheless, after a four-week bench trial on the merits that began in August 1993,

the district court issued an oral opinion in November 1993, held the State liable for violating

ADC residents’ Youngberg rights, and ordered the State, in cooperation with the United

States, to submit a plan to remedy the constitutional violations at ADC. The court issued

Supplemental Findings of Fact in February 1994, where it more specifically identified which

conditions at ADC violated residents’ Youngberg rights. These conditions included, inter

alia, substandard training of staff, deficient supervision of residents who posed dangers to

themselves and others, inadequate medical care and related health services, inadequate

habilitation and psychological services, and improper feeding practices. The court found

that these failures had led to thousands of injuries over the years. 

 In August 1994, the parties submitted a comprehensive stipulated remedial order

to address the concerns raised in the district court’s opinion. The remedial order included

more than one hundred requirements that pertained to how the State would operate ADC in

a constitutionally acceptable manner and a schedule for meeting these new requirements.

The order included a plan to reduce the population of ADC by transitioning some current

residents to arranged community living, an agreement to cease new admissions at ADC

without court approval, a guarantee to provide some community-based services to former

ADC residents, and new staffing and services requirements. The order also stated that a

court-appointed monitor would oversee the State’s compliance with the remedial plan. In

September 1994, the district court approved the remedial order. The district court entered

judgment in favor of the United States in August 1995. The State did not appeal this

judgment.

During this time period, another case with similar allegations proceeded against the

State. People First filed that suit in December 1991 and, in January 1993, the Parent

Guardian Association of Arlington Development Center (“PGA”) intervened. In September

1995, the district court extended its liability finding and remedial order in this case to that

parallel case. The district court also permitted People First and PGA to intervene in this

case. Furthermore, the district court approved a plaintiff class in this case defined as

individuals who had resided, were residing, or were at risk of residing at ADC, and it
No. 09-5474 United States v. State of Tenn., et al. Page 6

1

PGA did not file briefs in this appeal and is now called the West Tennessee Parent Guardian

Association. 

appointed People First as class representative. PGA appealed the district court’s class

certification decision, and the Sixth Circuit affirmed the creation of this plaintiff class and

the district court’s designation of People First as class representative. People First of Tenn.

v. Arlington Developmental Ctr., 145 F.3d 1332 (table), 1998 WL 246146, at *3 (6th Cir.

1998) (per curiam). 

Also in 1995, the district court held the State in contempt for failure to comply with

the remedial order. In the ensuing years, litigation between the parties has resulted in

multiple findings of contempt, additional plans of corrections, settlement agreements, and

consent orders. The injunctive relief has endured throughout this time. In its current form,

the injunctive relief oversees benefits for a plaintiff class that encompasses approximately

1,200 individuals, most of which do not live at ADC. The injunctive relief guarantees class

members comprehensive daily care in matters such as health, safety, and nutrition. It

mandates funding for programs such as a state-provided healthcare program, a housing

subsidy, a transportation subsidy, dental benefits, vision benefits, and advocacy services.

A court-appointed monitor continues to oversee the injunctive relief. The State maintains

that the injunctive relief causes it to spend around $30,000,000 a year more than it would if

it treated the class members like other similarly situated MR persons in Tennessee.

In September 2008, the State filed this Rule 60(b)(5) motion and asked the district

court to vacate the injunctive relief and dismiss the case. In support of its motion, the State

argued that continuing the injunctive relief was inequitable because of changes in law that

now made clear that the MR residents at ADC were not entitled to Youngberg rights because

these residents resided voluntarily in the State’s care. The State noted that, since 1993,

Tennessee had amended its laws to guarantee discharge from a state-operated institution

upon request. It further pointed to this court’s unpublished decision in Higgs v. Latham, 946

F.2d 895 (table), 1991 WL 216464 (6th Cir. 1991) (per curiam), and decisions from our

sister circuits that it argued supported its argument. The United States, People First, and

PGA opposed this motion.1
No. 09-5474 United States v. State of Tenn., et al. Page 7

The district court held that the State had failed to establish the existence of a

significant change in law and denied the motion. United States v. Tennessee, No. 92-

2062, at 11 (W.D. Tenn. Feb. 18, 2009). The court acknowledged that, in some other

circuits, the determination of whether an individual is entitled to Youngberg rights

depends upon the method of the MR adult’s confinement. Id. at *6-7. Nevertheless, it

determined that ADC residents remained involuntarily committed because, although

Tennessee had amended its laws to guarantee discharge at the request of a resident with

capacity, the MR residents at ADC still depended upon the request of a parent or other

legal representative to be discharged. Id. at *7-8. In support of this conclusion, the court

cited Doe v. Austin, 848 F.2d 1386, 1392 (6th Cir. 1988), to hold that the law of this

circuit remained that MR residents of state-run facilities are involuntarily committed into

the state’s care as a matter of law when another person instigated the commitment on

behalf of the MR individual. Id. at *8. The court also rejected the State’s contention

that this court’s unpublished decision in Higgs, which predated the original judgment in

this case, could satisfy the requirement of showing a significant change in law simply

because, according to the State, this circuit’s rules regarding unpublished opinions had

changed since the 1992 refusal to dismiss the complaint. Id. at *9-10. Lastly, the district

court held that the injunctive relief should remain in force even if ADC residents

voluntarily resided in state custody because they still retained certain substantive due

process rights, such as freedom from undue restraint and physical abuse, that justified

continuing the injunctive relief. Id. at *10. The State appeals.

II. Legal Standard

Federal Rule of Civil Procedure 60(b)(5) allows a court to grant relief from a

final judgment when “applying it prospectively is no longer equitable.” Fed. R. Civ. P.

60(b)(5). We review a denial of a Rule 60(b)(5) motion for abuse of discretion. Brown

v. Tenn. Dep’t of Fin. & Admin., 561 F.3d 542, 545 (6th Cir. 2009). “A court abuses its

discretion when it commits a clear error of judgment, such as applying the incorrect legal

standard, misapplying the correct legal standard, or relying upon clearly erroneous

findings of fact.” In re Ferro Corp. Derivative Litig., 511 F.3d 611, 623 (6th Cir. 2008).
No. 09-5474 United States v. State of Tenn., et al. Page 8

The Supreme Court has noted that “[i]t is true that the trial court has discretion, but the

exercise of discretion cannot be permitted to stand if we find it rests upon a legal

principle that can no longer be sustained.” Agostini v. Felton, 521 U.S. 203, 238 (1997).

The Supreme Court recently addressed how courts should approach Rule

60(b)(5) motions in the context of institutional reform litigation in Horne v. Flores, 129

S. Ct. 2579 (2009). The Court noted that federal encroachment upon states’ rights is

more likely to occur in institutional reform litigation and determined that “courts must

take a ‘flexible approach’ to Rule 60(b)(5) motions addressing such decrees.” Id. at

2594 (quoting Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 381 (1992)).

Specifically, the Horne Court directed courts not to focus on a party’s failure to appeal

when considering a motion under Rule 60(b)(5) in institutional reform litigation. Id. at

2596. Instead, courts must conduct 

the type of Rule 60(b)(5) inquiry prescribed in Rufo. This inquiry makes

no reference to the presence or absence of a timely appeal. It takes the

original judgment as a given and asks only whether “a significant change

either in factual conditions or in law” renders continued enforcement of

the judgment “detrimental to the public interest.”

Id. at 2596-97 (quoting Rufo, 502 U.S. at 384); see generally Sweeton v. Brown, 27 F.3d

1162, 1166-67 (6th Cir. 1994) (en banc) (“Neither the doctrines of res judicata or waiver

nor a proper respect for previously entered judgments requires that old injunctions

remain in effect when the old law on which they were based has changed.”). 

Accordingly, despite the State’s failure to appeal the original judgment entered

by the district court, we now employ a Rufo analysis. We take the original judgment as

a given, and, because the State does not argue that a subsequent change in factual

conditions has occurred, we determine whether a significant change in law has occurred

since the original judgment. The State bears the “initial burden” of showing a significant

change in law because it is the “party seeking modification.” Rufo, 502 U.S. at 384; see

also Brown, 561 F.3d at 546 (noting some subsequent changes in decisional law and

stating that “the remaining question is whether Tennessee has carried its burden of

proof”). To meet this burden, the State must put forward “new court decisions or
No. 09-5474 United States v. State of Tenn., et al. Page 9

statutes that make legal what once had been illegal.” Associated Builders & Contractors

v. Mich. Dep’t of Labor & Econ. Growth, 543 F.3d 275, 278 (6th Cir. 2008). Generally,

for a new court decision to make legal what was once illegal, it must be a subsequent

published decision of the Sixth Circuit or a decision from the United States Supreme

Court. See, e.g., Doe v. Briley, 562 F.3d 777, 784 (6th Cir. 2009) (affirming district

court’s order vacating injunctive relief where the constitutional claim upon which the

initial decree was based was “utterly indistinguishable from the claim rejected [by the

Supreme Court]” in an intervening case), and Brown, 561 F.3d at 548 (6th Cir. 2009)

(applying Rufo and citing an intervening published Sixth Circuit decision to vacate the

relevant part of a settlement). 

The State employs several arguments in an attempt to convince this court that a

significant change in law has occurred. We consider each argument in turn.

III. Analysis

Many of the State’s arguments focus on the Supreme Court’s decision in

DeShaney and its progeny—just as the State’s arguments did in its March 1992 motion

to dismiss. We begin by noting that DeShaney, decided in 1989 and discussed and

distinguished at length in the district court’s August 1992 ruling on the motion to

dismiss, is not a “new court decision[].” Associated Builders, 543 F.3d at 278. As a

result, DeShaney cannot satisfy the State’s initial burden under Rufo. 

For the same reason, our unpublished opinion in Higgs does not help the State.

In Higgs, a mentally ill patient, admitted into a state-run mental hospital and

subsequently sexually assaulted by another patient, unsuccessfully sued the state for

violating her substantive due process rights. Higgs, 1991 WL 216464, at *1. Applying

DeShaney, we held that the state did not owe the patient Youngberg rights because she

voluntarily entered and resided in the state’s care. Id. at *3. We reasoned that “there

was no affirmative act by the hospital to deprive her of liberty, and therefore no

triggering of the state’s constitutional duty to protect those it renders helpless by

confinement.” Id. at *4 (internal quotation marks omitted). As with DeShaney, we do

not need to determine whether Higgs could be interpreted to support the State’s
No. 09-5474 United States v. State of Tenn., et al. Page 10

argument because it was decided in 1991, prior to the district court’s oral ruling on

liability in November 1993.

Moreover, Higgs is an unpublished opinion that does not bind this court in the

way that a published opinion does. United States ex rel. Bledsoe v. Cmty. Health Sys.,

Inc., 501 F.3d 493, 507 (6th Cir. 2007) (citing United States v. Ennenga, 263 F.3d 499,

504 (6th Cir. 2001)). And we are not convinced by the State’s argument that Higgs can

now be considered new law because, according to the State, unpublished decisions are

more persuasive now than they were in August 1992 or November 1993. The fact that

unpublished opinions may be cited, where before their citation was restricted, did not

make them any more binding than they were before.

The amendments to Tennessee’s laws subsequent to the August 1992 ruling on

the motion to dismiss also cannot satisfy the State’s initial burden. To meet its burden,

the State must put forward “new . . . statutes.” Id. Yet these amendments became law

in May 1993, after the district court’s August 1992 ruling but before the district court’s

November 1993 ruling on liability. The State even filed a second motion to dismiss in

July 1993, prior to the court’s November 1993 ruling, that focused in part on these

changes in law. 

Additionally, these changes to Tennessee’s statutes did not “make legal what

once had been illegal.” Id. Section 33-5-303, the statute the state cites in favor of its

argument, guarantees discharge upon request within twelve hours. But, a person who

lacks capacity still must depend on a parent or other legal guardian to make this request.

Accordingly, these changes are only relevant here if there has been a change in law

regarding whether MR adults involuntarily reside in a state’s care when they are

incapable of competently choosing to stay or leave but have been voluntarily placed and

kept in the state’s care by a parent or other legal representative. However, this court’s

decision in Austin makes clear that the case law on this issue has not changed.

In Austin, the plaintiffs, a certified class of MR persons, sued the State of

Kentucky to enjoin the commitment of MR persons to state-owned residential treatment

centers without a hearing. Austin, 848 F.2d at 1388. Kentucky argued that the plaintiffs
No. 09-5474 United States v. State of Tenn., et al. Page 11

2

The district court did not cite Austin in its August 1992 ruling, but the district court’s reasoning

in that ruling was nevertheless consistent with Austin’s holding. 

lacked standing because their commitment into the facility was voluntary. Id. at 1391-

92. Specifically, Kentucky had established a process where an MR adult could be

admitted into state custody “voluntarily” if a parent or guardian initiated the

commitment. Id. at 1392. This court rejected the notion that commitment could be

considered voluntary in this circumstance: “By legislative fiat, the Commonwealth has

deemed admissions initiated by a parent or guardian to be voluntary, with no regard for

the actual wishes of the committed person.” Id. This court continued:

[T]he notion that the continuing confinement of the class members is

voluntary notwithstanding the possible involuntariness of their initial

confinement is, at best, an illusion. Indeed, the practice of relying upon

some affirmative act on the part of profoundly and severely retarded

persons to signal their will to escape confinement, coupled with the

presence of a parent or guardian who may have played a pivotal role in

institutionalizing the admittee in the first instance, creates a quite

palpable danger that the adult child will be lost in the shuffle. We

decline to adopt a measure of voluntariness for the commitment of adults

that favors form over substance. Therefore, we agree with the district

court that the commitment of mentally retarded adults by the

Commonwealth upon application by a parent or guardian is to be

considered involuntary.

Id. (internal quotation marks and citations omitted). 

The thrust behind the district court’s August 1992 ruling arguably was, consistent

with Austin, that the State owed Youngberg rights to ADC residents because of the

degree of State involvement in the daily life of its MR residents and these individuals’

inability to manifest a desire to enter into or leave the State’s care.2

 See United States

v. Tennessee, 798 F. Supp. at 486-87. The fact that the modifications to the statutes after

the 1992 motion to dismiss ruling did not compel the district court to modify its prior

ruling further supports this conclusion. The changes to Tennessee’s statutes did nothing

to address these core concerns. As a result, these changes do not satisfy the State’s

initial burden, even if we ignore the fact that the changes preceded the imposition of the

original judgment. 
No. 09-5474 United States v. State of Tenn., et al. Page 12

The State argues that the original judgment is no longer good law in the wake of

DeShaney and its progeny, which the State maintains has been significantly clarified

over time. Specifically, the State maintains that a circuit split existed in the early 1990s

regarding whether states owed Youngberg rights to residents that resided voluntarily in

their care. But, the State argues that these circuits have now reached a consensus that

states do not owe Youngberg rights to MR residents who have been voluntarily placed

into state care by a parent or other legal representative. It further asserts that every

published circuit court decision to consider this matter post-DeShaney has determined

that involuntary confinement is required to implicate residents’ Youngberg rights. See,

e.g., Brooks v. Giuliani, 84 F.3d 1454 (2d Cir. 1996) (applying DeShaney and holding

that “the State Defendants had no duty under the Due Process Clause to provide

professionally adequate care” because the plaintiffs, eighteen MR individuals, were

voluntarily in the state’s care.) 

In making this claim, however, the State misconstrues the relevant question

before this court. Our Rufo analysis is limited to whether the State can meet its initial

burden of pointing to “new court decisions or statutes that make legal what once had

been illegal.” Associated Builders, 543 F.3d at 278. Although the parties dispute the

holding and relevance of each of these cases, they all agree that these cases are not

rulings of the Supreme Court or the Sixth Circuit. In fact, a published decision of this

circuit has recently stated that the Sixth Circuit has not weighed in on this purported

circuit split: “At this time, we do not need to decide whether the State owes the same

affirmative constitutional duties of care and protection to its voluntarily admitted

residents as it owes to its involuntarily committed residents under Youngberg.” Lanman

v. Hinson, 529 F.3d 673, 681 n.1 (6th Cir. 2008). Likewise, the Supreme Court has not

squarely addressed this issue. Therefore, although these cases from other circuits could

potentially be persuasive if this case were before us in another context, they cannot,

either individually or collectively, satisfy the State’s initial burden. 

We now turn to the State’s contention that Jackson v. Schultz, 429 F.3d 586 (6th

Cir. 2005), satisfies its initial burden. This argument presents a closer question than the
No. 09-5474 United States v. State of Tenn., et al. Page 13

ones already considered because Jackson is a published Sixth Circuit opinion that was

issued several years after the district court’s original judgment. Unfortunately for the

State, however, Jackson did not “make legal what once had been illegal.” Associated

Builders, 543 F.3d at 278. 

In Jackson, the mother of a deceased man alleged that government-employed

EMTs had violated the decedent’s substantive due process rights when they placed him

into an ambulance and watched him die without providing medical care. Jackson, 429

F.3d at 588. Accepting the allegations in the complaint, the district court held that the

EMTs had violated the “decedent’s clearly established constitutional right to receive

competent medical care while in custody.” Id. This court disagreed:

The district court improperly held that moving an unconscious

patient into an ambulance is custody. This court’s precedent has made

clear that DeShaney’s concept of custody does not extend this far. This

court has never held that one merely placed in an ambulance is in

custody. The proper custody inquiry is whether the EMTs engaged in a

restraint of personal liberty similar to the restraints mentioned in

DeShaney. . . . The restraints of personal liberty mentioned in DeShaney

all require some state action that applies force (or the threat of force) and

show of authority made with the intent of acquiring physical control.

Id. at 590 (internal citations and quotation marks omitted). The court continued:

There is no allegation that the EMTs restrained or handcuffed the

decedent. There is no allegation that the decedent was not free to leave

the ambulance or be removed from the ambulance. Decedent’s liberty

was “constrained” by his incapacity, and his incapacity was in no way

caused by the defendants.

Id. at 591. The court concluded that “no set of facts consistent with the allegations

shows that the EMTs did anything to restrain the decedent’s liberty. Thus, no set of facts

consistent with the allegations supports a finding that the EMTs took decedent into

custody.” Id. 

We begin our analysis of Jackson by acknowledging that there are some

similarities that favor the State’s argument. For example, the Jackson court emphasized

that the defendants did not cause the deceased’s incapacity, or his unconsciousness, and,
No. 09-5474 United States v. State of Tenn., et al. Page 14

here, there are no allegations that the State caused the incapacity of the ADC residents,

or their intellectual disabilities. Further, the man in Jackson was unconscious until his

death, and, although he was free to leave whenever he chose, he could not choose to

enter or leave the ambulance because of his incapacity. Similarly, although ADC

residents are free to leave if they have capacity, most lack capacity and thus are reliant

on another person to decide whether they will enter or leave the state’s care. 

However, there is a significant disparity in the amount of state control in each

case. In Jackson, the man was “merely placed in an ambulance.” Id. at 590. By

contrast, ADC residents are subject to significant state involvement in almost every facet

of their daily life—including their food, transportation, shelter, medical care, and

protection—and they generally remain in the State’s care for years. The comprehensive

level of state involvement in this case renders Jackson inapplicable. Also, the Jackson

court’s use of DeShaney does not somehow incorporate DeShaney and its progeny—and

specifically the cases from our sister circuits that the State claims satisfy its initial

burden—into the binding case law of this circuit. Because Jackson is not a significant

change in law under Rufo, Jackson cannot open the door for other cases to be considered,

especially when we have already determined that these other cases are not significant

changes in law.

The State’s argument that this case, i.e., the Rule 60(b)(5) motion currently

before the court, can qualify as the significant change in law under Rufo also fails. The

only case law that the State provides to support this assertion is Agostini. In Agostini, the

Supreme Court employed the Rufo standard in an Establishment Clause case and

overturned an injunction that it had upheld ten years prior “in light of a bona fide,

significant change in subsequent law.” Agostini, 521 U.S. at 239. Contrary to the

State’s assertions otherwise, the Rule 60(b)(5) motion itself was not the significant

change in law in Agostini. Instead, the Court noted that “more recent cases ha[d]

undermined the assumptions upon which” the Court had relied when it first considered

the case. Id. at 222. In fact, the majority in Agostini expressly rejected the argument

now being made by the State. The Court made clear that “it was Zobrest [v. Catalina
No. 09-5474 United States v. State of Tenn., et al. Page 15

Foothills Sch. Dist., 509 U.S. 1, 7 (1993)]–and not this litigation–that created ‘fresh

law.’” Id. at 225. The State’s interpretation of Agostini conflicts with the plain language

of that opinion, and we decline to adopt it. 

Lastly, Horne has not altered the standard for assessing Rule 60(b)(5) motions

so that a subsequent change in fact or law is no longer needed in institutional reform

litigation. The Court in Horne explicitly rejected this idea:

This does not mean, as the dissent misleadingly suggests, that we

are faulting the Court of Appeals for declining to decide whether the

District Court’s original order was correct in the first place. On the

contrary . . . our criticism is that the Court of Appeals did not engage in

the changed-circumstances inquiry prescribed by Rufo.

Horne, 129 S. Ct. at 2596 n.5 (internal citations omitted). Accordingly, we have

properly limited our analysis to the traditional Rufo standard.

After considering each of the State’s arguments, it is clear that the district court

did not abuse its discretion when it dismissed the State’s Rule 60(b)(5) motion. The

State has not put forward a single case or statute that could qualify as the significant

change in law required to satisfy its initial burden under Rufo. In light of this failure, the

district court did not abuse its discretion when it refused to revisit the original judgment.

Because our ruling on this issue is dispositive, we decline to address the district court’s

alternative conclusion that, even if residents are at ADC voluntarily, the injunctive relief

should remain. Just like the district court, we also decline to address whether the State’s

motion was untimely because we do not need to resolve this issue to reach our holding.

IV. Conclusion

For the foregoing reasons, we AFFIRM.