PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

WALTER STEPHEN JACKSON, by his 

parents and next friends, Walter and Helen 

Jackson; STEVE NUNEZ, by his guardian 

and next friend, ARC of New Mexico; 

MARY KATHERINE NOWAK, by her 

next friend, James W. Ellis, Esquire; 

RICHARD STANFIELD, by his father and 

next friend, The Reverend Clyde Stanfield; 

BETTY YOUNG, by her next friend, Mary 

Dudley, Ph.D.; KELLY VAN CUREN, by 

her parents and next friends, Ted and Sallie 

Van Curen, on behalf of themselves and all 

others similarly situated, 

 Plaintiffs - Appellees, 

and 

ARC OF NEW MEXICO; AVA PEETS, 

 Plaintiffs Intervenors - Appellees, 

v. 

LOS LUNAS COMMUNITY PROGRAM; 

NEW MEXICO DEPARTMENT OF 

HEALTH; LYNN GALLAGHER, in her 

official capacity as Secretary of the New 

Mexico Department of Health; JILL 

MARSHALL, in her official capacity as 

Administrator for the Los Lunas 

Community Program; NEW MEXICO 

HUMAN SERVICES DEPARTMENT; 

BRENT EARNEST, in his official capacity 

as Secretary of the New Mexico Human 

Services Department; NEW MEXICO 

No. 16-2172 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 23, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

PUBLIC EDUCATION DEPARTMENT; 

JOE D. CORDOVA, in his official 

capacity as Director of the New Mexico 

Vocational Rehabilitation Division, 

 Defendants - Appellants. 

_________________________________ 

Appeal from the United States District Court 

for the District of New Mexico 

(D.C. No. 1:87-CV-00839-JAP-KBM)

_________________________________ 

Jerry A. Walz (James J. Grubel appeared with him on the briefs), Walz and Associates, 

P.C., Albuquerque, New Mexico, for Defendants - Appellants. 

Steven J. Schwartz, Center for Public Representation, Northampton, Massachusetts 

(Cathy Costanzo, Center for Public Representation, Northampton, Massachusetts; Peter 

Cubra, Albuquerque, New Mexico; Philip Davis, Albuquerque, New Mexico; Ann Sims, 

Los Lunas, New Mexico; Tim Gardner and Nancy Koenigsberg, Disability Rights New 

Mexico, Albuquerque, New Mexico, appeared with him on the briefs), for Plaintiffs - 

Appellees. 

_________________________________ 

Before MATHESON, McKAY, and McHUGH, Circuit Judges. 

_________________________________ 

McHUGH, Circuit Judge. 

_________________________________ 

This civil rights class action lawsuit was filed thirty years ago to challenge 

various aspects of the institutionalization of developmentally disabled individuals at 

two state-supported facilities in New Mexico. After a lengthy trial in 1990, the 

district court ruled that Defendants—the two institutions and the individuals charged 

with their operation—were violating class members’ federal constitutional and 

statutory rights. The district court ordered the parties to develop a plan to cure the 
3 

violations, and the plan was implemented over the ensuing years through several 

consent decrees and other court-approved agreements (collectively, consent decrees). 

Although the two institutions closed in the 1990s, the district court has continued to 

monitor whether Defendants are in compliance with the obligations set forth in those 

consent decrees (decree obligations). And in the twenty-five years since the court’s 

initial ruling, the parties have agreed to, and the court has approved, numerous 

additional decree obligations of varying specificity with which Defendants must 

comply before the court will discontinue its oversight. As of the district court’s most 

recent order, Defendants had yet to fulfill over 300 decree obligations. 

In August 2015, Defendants moved under Federal Rule of Civil Procedure 

60(b)(5) to vacate all consent decrees and to terminate the court’s oversight, arguing 

that changed factual circumstances warrant the requested relief. The district court 

denied the motion in June 2016. Defendants appealed. We vacate the 2016 Order and 

remand for the district court to decide whether Defendants are currently violating 

class members’ federal constitutional or statutory rights and to reassess the equity of 

continuing federal oversight with the benefit of that determination. 

I. BACKGROUND 

To provide context for this dispute, we begin with an overview of the 

procedural history of this multi-decade litigation. We then examine the district 

court’s ruling on Defendants’ Rule 60(b)(5) motion under the governing legal 

standard. 
4 

A. Litigation History

In July 1987, twenty-one developmentally disabled individuals brought this 

class action lawsuit on behalf of themselves and others similarly situated. In their 

complaint, Plaintiffs challenged the conditions of institutionalization at Fort Stanton 

Hospital and Training School (Fort Stanton) and Los Lunas Hospital and Training 

School (Los Lunas), both of which were state-supported institutions for the 

developmentally disabled in New Mexico. Jackson v. Fort Stanton Hosp. & Training 

Sch. (Jackson II), 964 F.2d 980, 985 (10th Cir. 1992). Plaintiffs sought to correct the 

federal constitutional and statutory deficiencies of the conditions at Fort Stanton and 

Los Lunas. Id. They also requested relief permitting developmentally disabled 

persons residing at the institutions to live in integrated family-like settings within the 

community. Id. 

In June 1988, the district court allowed more than 125 parents and guardians 

of residents at Fort Stanton and Los Lunas to intervene. Id. Like Plaintiffs, 

Intervenors sought to bring the conditions at the two institutions into compliance 

with federal constitutional and statutory law. Id. But Intervenors opposed Plaintiffs’ 

efforts to require mandatory transfer of the institutions’ residents to communitybased facilities. Id.

In June 1989, the district court certified a class of “all persons who at that time 

resided at [Fort Stanton] or [Los Lunas], all persons who would become residents of 

the institutions during the pendency of the action, and all persons who had been 

transferred from these two institutions to other facilities funded by [D]efendants.” Id.
5 

1. The 1990 Order 

After a prolonged trial, the district court issued, on December 28, 1990, an 

extensive Memorandum Opinion and Order (1990 Order). Jackson v. Fort Stanton 

Hosp. & Training Sch. (Jackson I), 757 F. Supp. 1243 (D.N.M. 1990), rev’d in part, 

964 F.2d 980 (10th Cir. 1992). In the 1990 Order, the court “made detailed findings 

of fact regarding almost every aspect of the conditions” at the two institutions, 

Jackson II, 964 F.2d at 986, and determined that the conditions were statutorily and 

constitutionally deficient in eighteen areas, Jackson I, 757 F. Supp. at 1315–16.1

 The 

court concluded that Defendants were discriminating against class members in 

violation of § 504 of the Rehabilitation Act of 1973 by failing to provide adequate 

accommodations for severely handicapped residents capable of residing in a 

community setting, while simultaneously serving less severely handicapped 

individuals in the community. See id. at 1297–99; see also 29 U.S.C. § 794. And the 

court ruled that Defendants were violating class members’ substantive due process 

rights under the Fourteenth Amendment and Youngberg v. Romeo, 457 U.S. 307 

(1982). See Jackson I, 757 F. Supp. at 1305–13. Specifically, the court ruled that 

 1

 The eighteen areas of deficiencies are: (1) individual program plans; (2) 

medical records; (3) discharge plans; (4) data collection; (5) qualified mental 

retardation professional services; (6) behavior management; (7) use of physical 

restraints; (8) prevention of abuse of residents; (9) reduction of accidents and injuries 

to residents; (10) reports of abuse, accidents, and injuries; (11) staff supervision; (12) 

preservice training of staff; (13) in-service training of staff; (14) sufficiency of 

professional staff; (15) adaptive equipment; (16) functional and chronologically age 

appropriate programming; (17) coordination between residential areas and training 

program areas; and (18) inadequate space in training program areas. Jackson v. Fort 

Stanton Hosp. & Training Sch., 757 F. Supp. 1243, 1316–17 (D.N.M. 1990). 
6 

Defendants were violating due process by failing to provide residents of the two 

institutions with minimally adequate medical care; by failing “to provide reasonable 

conditions of safety for the residents”; by physically restraining residents as a result 

of understaffing; by failing to provide “minimally adequate training” to the residents; 

and by failing to implement recommendations by interdisciplinary treatment teams 

(Teams)—consisting of qualified professionals—that certain of these residents should 

be placed in community settings. Id. at 1306–07, 1312.2

The district court ordered the parties to work together in good faith “to 

formulate by agreement a plan to correct” the eighteen areas of deficiencies at the 

two institutions. Id. at 1315. The court required the parties to formulate a “detailed 

written policy to be adopted by and followed at each institution,” to designate 

persons responsible at each institution for implementing the correction plans, to 

describe the “strategies to be adopted by each institution” in order to ensure 

successful implementation of the correction plans, and to develop a “detailed 

timetable establishing deadlines by which specific components of the correction plan 

 2

 The district court further concluded that Defendants violated class members’ 

substantive due process rights by “considering the present availability of community 

services when determining whether to recommend the residents for community 

placement.” Jackson v. Fort Stanton Hosp. & Training Sch. (Jackson II), 964 F.2d 

980, 986 (10th Cir. 1992). Accordingly, the district court permanently enjoined 

Defendants “from permitting [Teams] to take into account the availability or lack of 

availability of community services in reaching a recommendation as to whether a 

resident should be served in the community.” Id. On appeal, we reversed this portion 

of the 1990 Order, holding that the district court erred in ruling that due process 

required Defendants be enjoined from permitting Teams to consider the availability 

of community services when making treatment decisions. Id. at 992. 
7 

for each deficiency will be achieved.” Id. at 1316. The court also set September 10, 

1991, as the deadline for “complete correction of all deficiencies.” Id. And the court 

required the parties to describe the “[m]eans of assuring continued compliance with 

appropriate standards after correction of the deficiencies has been achieved.” Id. 

The court further ordered Defendants to prepare, by March 1, 1991, “a written 

plan of transfer to an appropriate community setting for each resident whose [Team] 

has recommended placement in a community setting.” Id. at 1317. The court urged 

Plaintiffs to confer in good faith with Defendants to resolve any concerns Plaintiffs 

may have with the proposed plans and to amend the plans accordingly. Id. at 1316–

17. The court also afforded Plaintiffs the opportunity to “file with the court and serve 

on [D]efendants a statement of any remaining objections they may have to, and their 

proposals for amending, any particular plan.” Id.

Over the next several years, the district court entered various remedial orders 

and continued to oversee enforcement of those orders.3 See Jackson v. Los Lunas Ctr.

(Jackson III), No. CIV 87-839-JAP/KBM, 2016 WL 9777237, at *2 (D.N.M. June 14, 

2016). 

 3

 In late 1993, Plaintiffs moved to amend their complaint by interlineation to 

assert a claim under the Americans with Disabilities Act (ADA). Plaintiffs’ proposed 

claim asserted that Defendants violated the ADA by excluding class members with 

disabilities from certain public programs and places of public accommodation and 

service and by segregating class members from their communities by congregating 

them in Fort Stanton and Los Lunas. In early 1994, the court granted Plaintiffs’ 

motion. 
8 

2. The 1994 Stipulation Concerning Fort Stanton 

In 1994, New Mexico elected to close Fort Stanton by 1995 and to transfer all 

of the residents at the institution to community-based services. In April 1994, the 

parties filed a joint motion under Rule 60(b) and Rufo v. Inmates of Suffolk County 

Jail, 502 U.S. 367 (1992), to modify portions of the district court’s 1990 Order, and 

to terminate the 1990 Order’s requirements as to Fort Stanton upon closure of that 

facility. 

The district court found the parties’ joint motion “well-taken” and determined 

that “the proposed modification is consistent with the rights of the classmembers.” 

JA Vol. 3 at 582. As a result, the court relieved Defendants from making further 

improvements to Fort Stanton. In doing so, the court stated, “[i]n the event that all 

classmembers have been transferred from Fort Stanton to appropriate settings by 

July 31, 1995, this Order and all portions of the [1990 Order] concerning corrections 

of deficiencies . . . at Fort Stanton will hereby be terminated.” Id. at 584. 

3. The 1997 Joint Stipulation on Disengagement (JSD) and Plan of Action 

In October 1997, the parties presented the court with the JSD, a Plan of 

Action, and a joint motion requesting the court’s approval of the JSD. According to 

the parties’ stipulation, the JSD “does not seek a remedy for past violations of 

Plaintiffs’ constitutional and statutory rights.” JA Vol. 7 at 1403. It is instead 

designed to prevent future harm by ensuring that “Plaintiffs’ rights are not violated in 

the community settings.” Id. at 1394. To that end, the JSD “defines the further 

actions and requirements” that Defendants had to complete, “and the services, 
9 

supports, and benefits” that Defendants had to provide to class members, in order for 

Defendants to comply with their obligations under the court’s existing orders. JA 

Vol. 4 at 622. 

The JSD acknowledges Defendants’ “substantial efforts to develop a nondiscriminatory service system for persons with developmental disabilities and to 

provide appropriate community living arrangements and supports to classmembers.” 

Id. at 620. And it states Defendants had made “efforts to reasonably accommodate 

the residents of Fort Stanton and Los Lunas in community settings.” Id. at 621. As a 

result of those efforts, Fort Stanton closed in March 1995 when all its residents had 

transitioned to community settings, and Los Lunas closed in July 1997 when its last 

resident transitioned to the community. 

The JSD also includes a process for judicial disengagement of Defendants’ 

decree obligations. And it identifies the “Continued Improvement of Community 

Services” as an area subject to disengagement. The Continuous Improvement 

obligations address “a quality improvement approach that requires Defendants to 

achieve a certain score on an annual audit.” Jackson III, 2016 WL 9777237, at *2 

(internal quotation marks omitted). In the order denying Defendants’ Rule 60(b)(5) 

motion that is the subject of this appeal, the district court recognized that Defendants 

have achieved disengagement from fifty-six of the seventy Continuous Improvement 

obligations. Id. 

The parties identified additional obligations in the Plan of Action, which 

Defendant Department of Health developed “to [e]nhance the Community Service 
10 

System” for persons with developmental disabilities. JA Vol. 4 at 629. The Plan of 

Action contains “a narrative, desired outcomes, and specific activities for thirteen 

components of the community service system.”4 Id. Those thirteen components are 

contained in the Plan of Action’s thirteen attached appendices. Two more appendices 

were later added by consent of the parties. 

After holding a fairness hearing, the district court issued, in December 1997, 

an order approving the JSD and the Plan of Action. The court noted the JSD “does 

not call for immediate dismissal of this lawsuit,” but instead “contemplates continued 

judicial oversight that could extend well into the next [millennium].” Id. at 801. The 

court further observed that the JSD “states the parties’ intention to fulfill most of the 

activities described in the Plan of Action by December 31, 1998, but makes an 

exception for certain requirements that may not be met until December 31, 2000.” Id. 

4. The 2005 Stipulation to Resolve Motion for Noncompliance (Appendix A) 

In May 2004, Plaintiffs moved for an order to show cause and for further 

remedial relief to require Defendants to comply with the court’s December 1997 

order approving the JSD and the Plan of Action. In June 2004, Plaintiffs moved for 

an Order to Reengage Effective Case Management, Desired Outcome A, Under the 

Plan of Action. 

 4

 The thirteen components are (1) quality enhancement, (2) community 

incident management system, (3) training, (4) management information systems, (5) 

individual service planning, (6) case management, (7) behavioral services, (8) crisis 

response, (9) sexuality, (10) supported employment, (11) assistive technology, (12) 

medical services, and (13) regional offices. 
11 

In May 2005, the parties filed a Joint Stipulation on Agreed Actions to Comply 

with Joint Stipulation of Disengagement and Plan of Action and to Resolve Pending 

Motions to Show Cause and to Re-engage (2005 Stipulation). Attached to the 2005 

Stipulation is “Appendix A[:] Agreed Actions to Address Contempt Motions” 

(Appendix A). JA Vol. 10 at 1903. The 2005 Stipulation states that it “is intended to 

obligate Defendants to take certain actions outside the Plan of Action as more 

specifically outlined in Appendix A.” Id. at 1898. “[T]he actions identified in 

Appendix A are intended to facilitate compliance with the JSD, to promote 

completion of . . . Audit Recommendations, to further address Case Management 

even though Plan of Action Desired Outcomes related to Case Management have 

been previously disengaged by an order of the Court and to address certain aspects of 

Vocational Rehabilitation.” Id. at 1898–99. The 2005 Stipulation clarifies that it is 

not intended to change or modify the terms of the JSD, which remain in effect. And it 

further states that Defendants “agree to implement all of the actions identified and 

listed in Appendix A,” and that the parties agree some of the Appendix A actions 

supplanted or modified activities listed in the Plan of Action. Id. at 1899. 

Appendix A imposes 107 specific obligations on Defendants. Some of the 

obligations are identified as “complete,” while many obligations were scheduled to 

be completed by May 2006 or in 2007. Although those deadlines were not met, 

Defendants represent that one third of the activities in Appendix A have been 

disengaged. Jackson III, 2016 WL 9777237, at *4. 
12 

The district court issued an order adopting the parties’ stipulation the same day 

the parties submitted it. 

5. The 2012 Order 

In mid-July 2010, Plaintiffs filed another Motion for Further Remedial Relief 

to Remedy Noncompliance. After full briefing, the district court denied the motion 

without prejudice so Plaintiffs could refile after an evidentiary hearing scheduled for 

June 2011. 

On April 26, 2011—the day before the pretrial conference for the evidentiary 

hearing—Defendants filed a Rule 60(b)(5) motion to terminate all remaining orders 

and to conclude the court’s oversight. Defendants maintained that they have made 

more than a reasonable effort to comply with the court’s orders, that they have 

substantially complied with all existing orders, and that changed factual conditions 

make continuing compliance substantially more onerous. The court held the motion 

in abeyance and suspended briefing on it until the completion of the evidentiary 

hearing, which occurred from June 13 to June 17, 2011. Jackson III, 2016 WL 

9777237, at *4. The court later terminated the pending Rule 60(b)(5) motion without 

deciding its merits. Id. at *4 n.12. 

In November 2011, after the evidentiary hearing, Plaintiffs filed a Renewed 

Motion for Further Remedial Relief to Remedy Noncompliance. Plaintiffs argued that 

Defendants had failed to comply with the JSD, the Plan of Action, Appendix A, the 

Rehabilitation Act, and the ADA (collectively, decrees). Plaintiffs also asked the 

court to appoint a Jackson Compliance Administrator (Compliance Administrator) to 
13 

oversee and ensure Defendants’ compliance. In October 2012, the district court 

issued a 206-page, Findings of Fact and Conclusions of Law (2012 Order). The court 

praised Defendants’ “innovations and progress,” but determined that Defendants 

were still in substantial noncompliance with the decree obligations. JA Vol. 25 at 

5303. Indeed, the court identified instances of noncompliance in the areas of health, 

safety, and supported employment. 

Based on the evidence before it, however, the court stated it “is unable to 

conclude that Defendants have violated the Rehabilitation Act and ADA.” The court 

explained: 

To start with, the Court could not conclude that Defendants have 

discriminated against severely disabled class members with respect to 

the provision of health care services. In fact, the Court commends 

Defendants for accommodating those severely disabled class members 

who live in rural New Mexico by providing them meaningful access to 

health care services . . . and for developing more and better health care 

services directed to severely disabled persons. There is, however, a 

question as to whether Defendants violated the Rehabilitation Act and 

ADA by intentionally denying severely disabled class members 

supported employment services equivalent to those received by less 

severely disabled persons. Unfortunately, that question of disparate 

treatment cannot be analyzed at this time, but must be further briefed. 

On the other hand, the Court was unable to find a violation of the 

Rehabilitation Act and ADA when severely disabled class members 

choose to participate in segregated, congregate day services while less 

severely disabled persons more often chose to engage in supported 

employment. 

Id. at 5304–05. 

The court also noted that Defendants “are close to substantially complying 

with [their] obligations,” and suggested that “the parties reconsider the descriptions 

of the more broadly stated obligations and restate them in language that makes the 
14 

obligations achievable.” Id. at 5303–04. After all, “many of the obligations are 

described in language that is more aspirational in nature than operational.” Id. at 

5304. Finally, the court granted Plaintiffs’ request to appoint a Compliance 

Administrator, who could “prod Defendants into final substantial compliance.”5 Id. at 

5305. 

6. The 2015 Revised Table IV 

After the district court issued its 2012 Order, the parties were to develop a 

consolidated remedial plan in the areas of health, safety, and supported employment 

to address the identified violations. See Jackson III, 2016 WL 9777237, at *6. The 

parties, counsel, the Compliance Administrator, and the court then worked together 

for over two years before finalizing a consolidated plan. Id. 

 In June 2015, the parties jointly filed the 2015 Revised Table IV—which is a 

final list of objectives in the areas of health, safety, and supported employment—

along with evaluative components (or disengagement criteria) and projected 

completion dates for each objective. In November 2015, the parties jointly filed a 

Stipulated Agreement on Disengagement Process for Revised Table IV. Under the 

 5

 After the court issued its 2012 Order, Plaintiffs moved to modify the 2012 

Order with respect to their claims under the Rehabilitation Act and the ADA. 

Plaintiffs asked the court to delete its findings and conclusions “on all discrimination 

claims regarding severity of disability and segregation,” to strike those portions of 

their November 2011 Renewed Motion for Remedial Relief to Remedy 

Noncompliance based on the Rehabilitation Act and the ADA, and to vacate the 

pertinent sections from its 2012 Order. JA Vol. 25 at 5308–09. The court denied the 

motion to modify, but, on its own initiative, granted Plaintiffs leave to file a motion 

seeking relief on their disparate treatment claim. Plaintiffs never filed a motion 

seeking relief on that claim. 
15 

agreed-upon disengagement process, Defendants would submit a request for 

disengagement of a specific decree objective to the Compliance Administrator, who 

would then make a written “determination” on whether the disengagement criteria 

had been met. If the Compliance Administrator did not agree that the criteria had 

been met, then Defendants could withdraw their request for a determination or pursue 

a disengagement motion with the court. 

The court noted that, as of May 2016, the Compliance Administrator had 

issued approximately three determinations on Defendants’ requests, with roughly 197 

decree obligations remaining for which the Compliance Administrator had not issued 

preliminary determinations. Jackson III, 2016 WL 9777237, at *7 n.20. The court 

also stated Revised Table IV did not replace or modify existing decree obligations 

that were not the subject of Plaintiffs’ Renewed Noncompliance Motion and the 

court’s 2012 Order. Id. at *8. Thus, Defendants must demonstrate substantial 

compliance with the earlier outstanding decree obligations, in addition to those listed 

in Revised Table IV. Id. The court estimated that, between the JSD, the Plan of 

Action, Appendix A, and Revised Table IV, Defendants must still show substantial 

compliance with approximately 307 decree obligations. Id. at *9. 

B. District Court’s Denial of Defendants’ Rule 60(b)(5) Motion

In August 2015, Defendants filed their current motion under Rule 60(b)(5), 

arguing that factual circumstances have changed to the extent that the district court 

should vacate all remaining orders and conclude its oversight entirely. Defendants 

identified four changed factual circumstances they claim warrant vacatur of all 
16 

pertinent decrees and termination of the case. First, Defendants argued that their 

decree obligations have increased in number and complexity to the point they will 

never be able to satisfy the “labyrinth of obligations” that are ever-changing, everincreasing, and not subject to objective measurement. Jackson III, 2016 WL 

9777237, at *11. 

Second, Defendants argued that some of their obligations are now outdated: 

1) the JSD provisions about community practice improvements at [Los 

Lunas], which are no longer relevant as that institution closed in 1997; 

2) the JSD formulate for disengagement of the Continuous Improvement 

outcomes, which is “convoluted,” “confusing,” and “unworkable”; 

3) the JSD Continuous Improvement obligations that “are no longer 

programmatically sound and are no longer the desire” of [class 

members],” and that are not relevant to the present-day needs of [class 

members]; 4) the 1997 Plan of Action obligations that have been 

“morphed into new requirements” under Revised Table IV and that are 

“long detached from remedying the original constitutional issues”; and 

5) Appendix A obligations that consist of vague and aspirational 

language, making disengagement impossible. 

Id. at *12 (citations omitted). 

Third, while conceding they have not substantially complied with all their 

decree obligations, Defendants maintained they have remedied all constitutional 

violations. Id. They argued they have thus attained the “objects” of the consent 

decrees, and they have corrected all eighteen areas of deficiencies the district court 

identified in its 1990 Order. Id. at 12–13. And if more is required, they insisted, this 

case will remain a never-ending process of continuing quality control. Id. at 12. 

 Fourth, Defendants argued that the increased litigation costs inhibit New 

Mexico’s ability to fund other important programs. Id. at *12–13. For instance, New 
17 

Mexico has spent more than $50 million related to this litigation in the last eight 

years. Id. at *12. And, as of 2009, the average yearly cost to provide services to class 

members had risen from $67,290.00 to $135,535.00 per class member, while New 

Mexico’s $32,992.00 per capita income was the ninth lowest in the United States. Id.

at *13. 

 Based on these four changed circumstances, Defendants contended that notions 

of federalism supported their request for relief. Indeed, they argued that federalism 

concerns are heightened here because the consent decrees have the effect of dictating 

state and local budget priorities and improperly depriving state officials of their 

designated legislative and executive powers. Id. at *13. 

In an order issued in June 2016, the court ruled that Defendants had not met 

their burden to show the existence of a significant change in fact warranting vacatur 

of all pertinent orders and termination of the case. First, the court stated that “while 

Defendants’ obligations are onerous,” Defendants never identified when these 

asserted changed factual circumstances occurred; indeed, “[s]ome of the complained 

about developments have been happening for years.” Id. at *14. 

Next, the court concluded that Defendants have not shown that the objects of 

the pertinent decrees have been attained. While the court recognized that the decrees 

were designed to restore class members to the position they would have occupied 

absent violations of federal law, the court stated that the “more specific ‘essential 

purposes’” of those decrees “are to provide class members with adequate health care, 

a reasonably safe environment, and supported employment opportunities.” Id.
18 

(quoting 2012 Order at 33). And based on Defendants’ concessions that they have not 

substantially complied with all the decree obligations, the court concluded that 

Defendants “have not fulfilled the essential purposes of the pertinent decrees.” Id. 

Further, the court found Defendants’ assertion that they long ago remedied all 

constitutional violations to be “somewhat misleading.” Id. at *14–15. The court 

explained that the decree obligations in the JSD, the Plan of Action, and Appendix A 

“all flowed from [its] original findings of [federal] violations in 1990.” Id. at *15. 

And it noted that Revised Table IV was developed in response to the 2012 findings of 

approximately 100 decree violations. Id. The court stated that it “correlated its 

specific findings of violations in 2012 with enumerated requirements in the JSD, Plan 

of Action, and Appendix A.” Id. “Stated differently, the October 2012 violations 

evolved from compliance issues concerning obligations that first appeared in the 

JSD, Plan of Action, and Appendix A that Defendants had not yet satisfied.” Id.

The court also took issue with Defendants’ characterization of the 2012 Order 

as finding no ongoing violations of federal law. The court clarified that it had made 

no findings in its 2012 Order on continuing violations of federal law. Id. Although 

Plaintiffs had argued that Defendants violated the Rehabilitation Act and the ADA, 

the court ruled then that “there was not sufficient evidence of discrimination under” 

either Act. Id. But the court explained that it was not asked, and thus made no 

findings on, whether Defendants otherwise continued to violate class members’ 

constitutional rights. Id. With respect to the 2016 motion to terminate oversight, the 

district court likewise did not resolve the question of current compliance with federal 
19 

law, stating it “is not in the position to assess, and, therefore, cannot conclude that 

Defendants are no longer violating constitutional or federal law.” Id. at *16. But 

“[b]ecause all of [the] outstanding obligations grew out of the Court’s 1990 Order 

and/or the related 2012 findings of violations,” the district court concluded that 

“Defendants have not convinced the Court that they have satisfied the essential 

purposes of the JSD, Plan of Action, Appendix A, and Revised Table IV.” Id. at 16. 

The court then rejected Defendants’ claim that principles of federalism 

dictated the termination of oversight. The court acknowledged that the Supreme 

Court, in Horne v. Flores, 557 U.S. 433 (2009), stated that federalism concerns are 

heightened when a consent decree has the effect of dictating state budget allocations. 

Id. And it conceded that “increasing fees and costs associated with this litigation are 

detrimental to the State’s interest.” Id. But the court reasoned that “first and 

foremost,” the Horne Court asked if the State had fulfilled its obligations under 

federal law and achieved the objectives of the pertinent order. Id. The district court 

answered that question in the negative, stating: “Unlike Horne, Defendants have not 

shown that they have fulfilled their outstanding obligations, ‘by other means.’” Id. at 

*17 (quoting Horne, 557 U.S. at 439). 

Ultimately, the court concluded that Defendants “have not come close to 

showing that vacatur of all of the orders and decrees is suitably tailored to the 

proposed changed circumstances.” Id. Nor have Defendants “demonstrated that a 

durable remedy is in place sufficient to justify vacatur of all of the Court’s orders.” 

Id. at *18. In other words, Defendants had not shown “that it is unlikely that the 
20 

prohibited conditions or actions will recur.” Id. (quoting LaShawn A. ex rel. Moore v. 

Fenty, 701 F. Supp. 2d 84, 111 (D.D.C. 2010), aff’d sub nom. LaShawn A. ex rel. 

Moore v. Gray, 412 F. App’x 315 (D.C. Cir. 2011)). The court therefore denied the 

motion. 

II. ANALYSIS 

On appeal, Defendants assert that the district court abused its discretion when 

it denied their Rule 60(b)(5) motion. Defendants contend significant changes in 

factual circumstances warrant termination of all consent decrees and of the court’s 

oversight. Specifically, they claim that compliance with the decrees has become 

substantially more onerous, the decrees have become unworkable due to unforeseen 

obstacles, and continued enforcement of the decrees would be detrimental to the 

public interest. They also argue that the district court misapplied Horne by requiring 

them to show attainment of specific essential purposes identified by the district court 

rather than compliance with federal law. 

A. Appellate Jurisdiction

Before addressing the merits, we must first resolve the parties’ dispute about 

whether the district court’s June 2016 order is a final, appealable order under 28 

U.S.C. § 1291. We have appellate jurisdiction over “final decisions of the district 

courts of the United States.” 28 U.S.C. § 1291. “A ‘final decision’ is ordinarily one 

that ‘ends the litigation on the merits and leaves nothing for the court to do but 

execute the judgment.’” Hayes Fam. Tr. v. State Farm Fire & Cas. Co., 845 F.3d 

997, 1003 (10th Cir. 2017) (quoting Catlin v. United States, 324 U.S. 229, 233 
21 

(1945)); see also D&H Marketers, Inc. v. Freedom Oil & Gas, Inc., 744 F.2d 1443, 

1444 (10th Cir. 1984) (en banc) (stating that § 1291 “has consistently been held to 

require the termination of all matters as to all parties and causes of action before an 

appeal may be taken”). “[P]ut differently,” a final decision is “one by which the 

district court ‘disassociates itself from a case.’” McClendon v. City of Albuquerque, 

630 F.3d 1288, 1292 (10th Cir. 2011) (quoting Swint v. Chambers Cty. Comm’n, 514 

U.S. 35, 42 (1995)). Although “a final judgment is the paradigmatic ‘final decision’ 

appealable under § 1291,” not “every case with a final judgment in it is appealable.” 

Id. Instead, “every post-judgment decision must be assessed on its own terms to 

determine whether it is a final decision amenable to appeal.” Id. at 1293. 

As relevant here, “[t]he general rules governing our review of a district court’s 

order granting or denying a Rule 60(b) motion are fairly well settled.” Stubblefield v. 

Windsor Capital Grp., 74 F.3d 990, 993 (10th Cir. 1996). “We have jurisdiction 

under 28 U.S.C. § 1291 to reach the merits of an appeal from a denial of a Rule 60(b) 

motion, provided the ruling or judgment the Rule 60(b) motion challenged was a final 

decision of the district court.” Id. (internal quotation marks omitted); see also 

McClendon, 630 F.3d at 1294 (recognizing that a district court’s denial of a Rule 

60(b) motion “usually qualif[ies] as [a] final decision[] for purposes of § 1291 

because [it] usually signal[s] that the district court’s business is done, that it has 

disassociated itself from the case, [and] that we may act without stepping on the 

district court’s toes”). 
22 

Here, Defendants moved under Rule 60(b) to vacate all pertinent orders—the 

JSD, the Plan of Action, Appendix A, and Revised Table IV—and to terminate this 

case. The parties and district court agree that the pertinent orders are consent decrees. 

See Jackson III, 2016 WL 9777237, at *9. And all agree that consent decrees are, in 

effect, final decisions within the meaning of Rule 60(b). See Johnson v. Lodge #93 of 

Fraternal Order of Police, 393 F.3d 1096, 1101 (10th Cir. 2004) (“A consent decree 

is a negotiated agreement that is entered as a judgment of the court. Consent decrees 

. . . have characteristics both of contracts and of final judgments on the merits.” 

(internal quotation marks omitted)); see also V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 

224 (10th Cir. 1979) (noting that when “the underlying judgment was by consent [it] 

has the same force and effect for [Rule] 60(b) purposes as a judgment rendered on the 

merits following trial”). Because the pertinent orders are consent decrees that are 

final orders under Rule 60(b), it necessarily follows that the district court’s June 2016 

order denying relief under Rule 60(b)(5) from those consent decrees is also final and 

appealable under § 1291. See Jeff D. v. Kempthorne, 365 F.3d 844, 850 (9th Cir. 

2004) (“Because consent decrees are considered final judgments we have jurisdiction 

to review the claims raised in the motion to vacate the consent decrees pursuant to 28 

U.S.C. § 1291.” (citation omitted)). 

Plaintiffs disagree. Relying on McClendon, they argue the district court’s June 

2016 order is not a final, appealable order because it signals that more litigation is on 

the way. Plaintiffs believe future litigation will occur when they inevitably file 

another motion for remedial relief to remedy Defendants’ noncompliance with the 
23 

consent decrees. In other words, the June 2016 Order is not final because the district 

court will continue to monitor Defendants’ compliance with its prior consent decrees 

(i.e., the JSD, the Plan of Action, Appendix A, and Revised Table IV). 

But under McClendon, that the district court may have to continue to oversee 

Defendants’ compliance with the consent decrees is not enough to strip the June 2016 

order of its status as a final decision. Instead, the relevant inquiry is whether the June 

2016 order will result in more litigation on the merits in the district court. See 

McClendon, 630 F.3d at 1292–94. If the June 2016 order “ensures litigation on the 

merits will continue in the district court,” then it is not final under § 1291. Id. at 

1293. But if it does not, and it is otherwise a denial of a Rule 60(b) motion 

challenging a final decision of the district court, then it is a final decision under 

§ 1291. See id. at 1293–94; Jeff D., 365 F.3d at 850. 

Under this formulation, the June 2016 order is a final, appealable decision. 

First, the June 2016 order does not signal that more litigation on the merits is on the 

way. In fact, the 1990 order, which followed a lengthy trial, resolved the merits of the 

litigation, and the district court retained jurisdiction only to oversee implementation 

of the ensuing consent decrees. Second, as discussed above, the 2016 order denied a 

Rule 60(b) motion challenging several final decisions of the district court. 

To be sure, the June 2016 order does not result in the district court dissociating 

itself from the case. Much the opposite, it means the district court will, as it has since 

it issued the 1990 Order, continue to oversee Defendants’ compliance with the 

pertinent consent decrees. But this fact alone does not deprive us of jurisdiction. 
24 

After all, each decree was a final, appealable decision under § 1291, even though the 

district court continued to oversee each decree’s implementation. See Johnson, 393 

F.3d at 1101; V.T.A., 597 F.2d at 224. If the district court’s continued oversight 

would not have divested us of appellate jurisdiction then, it should not do so now. 

In sum, the finality test asks whether the ruling challenged in the denied Rule 

60(b) motion was “a final decision of the district court.” Stubblefield, 74 F.3d at 993. 

Here, that test is met. The June 2016 order is a final, appealable order and, thus, we 

have appellate jurisdiction under § 1291. 

B. The Rule 60(b)(5) Motion

We now turn to Defendants’ argument that termination of all pertinent orders 

and of this case is appropriate due to significant changes in factual circumstances. 

Our analysis proceeds in three parts. First, we discuss the relevant standard of 

review. Second, we outline the law governing Rule 60(b)(5) motions in institutional 

reform litigation. Third, we apply that standard to the facts of this case. 

1. Standard of Review 

We review a district court’s denial of a Rule 60(b) motion for an abuse of 

discretion. Servants of Paraclete v. Does, 204 F.3d 1005, 1009 (10th Cir. 2000). In 

the Rule 60(b) context, we review the district court’s ruling only “to determine if a 

definite, clear or unmistakable error occurred below.” Zurich N. Am. v. Matrix Serv., 

Inc. 426 F.3d 1281, 1289 (10th Cir. 2005) (internal quotation marks omitted). “A 

reviewing court may reverse only if it finds a complete absence of a reasonable basis 

and is certain that the decision is wrong.” Id. (internal quotation marks omitted). “A 
25 

clear example of an abuse of discretion exists where the trial court fails to consider 

the applicable legal standard or the facts upon which the exercise of its discretionary 

judgment is based.” Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997). An 

appeal from the denial of a Rule 60(b) motion raises for our review only the district 

court’s order denying the motion, and not the underlying judgment itself. Servants of 

Paraclete, 204 F.3d at 1009. 

2. Legal Standard 

A Rule 60(b) motion for relief from judgment is an extraordinary remedy and 

may be granted only in exceptional circumstances. Id.; see V.T.A., Inc., 597 F.2d at 

223 n.7 (10th Cir. 1979). The motion may not be used as a substitute for direct 

appeal. See Servants of Paraclete, 204 F.3d at 1009. 

Rule 60(b)(5) permits relief from a judgment or order if “[1] the judgment has 

been satisfied, released, or discharged; [2] it is based on an earlier judgment that has 

been reversed or vacated; or [3] applying it prospectively is no longer equitable.” 

Fed. R. Civ. P. 60(b)(5) (emphasis added). Use of the disjunctive “or” demonstrates 

“that each of the provision’s three grounds for relief is independently sufficient and 

therefore that relief may be warranted even if [a movant has] not ‘satisfied’ the 

original order.” Horne v. Flores, 557 U.S. 433, 454 (2009). Defendants seek relief on 

the ground that ongoing enforcement of the pertinent decrees is no longer equitable. 

We now turn to a discussion of the limits of federal involvement in 

institutional reform litigation and of the two leading Supreme Court cases addressing 
26 

the no-longer-equitable basis for Rule 60(b)(5) relief: Rufo v. Inmates of Suffolk 

County Jail, 502 U.S. 367 (1992), and Horne v. Flores, 557 U.S. 433 (2009). 

a. Consent Decrees Generally

A consent decree “entered in federal court must be directed to protecting 

federal interests.” Frew v. Hawkins, 540 U.S. 431, 437 (2004). The consent decree 

“must spring from, and serve to resolve, a dispute within the court’s subject-matter 

jurisdiction.” Id. (citing Firefighters v. Cleveland, 478 U.S. 501, 525 (1986)). 

Equity requires a federal court fashioning and implementing a consent decree 

to focus on three factors. See Milliken v. Bradley, 433 U.S. 267, 280 (1977). First, a 

federal consent decree must “be remedial in nature” and thus “designed as nearly as 

possible to restore the victims of [illegal] conduct to the position they would have 

occupied in the absence of such conduct.” Id. at 280 (internal quotation marks 

omitted). 

Second, the nature and scope of the remedy provided by a federal consent 

decree depends on the nature and scope of the federal-law violation. Id. at 280, 282. 

This means a “federal-court decree[] must directly address and relate to the [federallaw] violation itself.” Id. at 282. And it must be “tailored to cure the condition that 

offends” federal law. Id. (internal quotation marks omitted). But a decree exceeds 

appropriate limits if it is “aimed at eliminating a condition that does not violate 

[federal law] or does not flow from such a violation.” Id. 

Third, federal courts “must take into account the interests of state and local 

authorities in managing their own affairs,” consistent with the demands of federal 
27 

law. Id. at 280–81. Indeed, principles of federalism require that federal courts give 

“significant weight to the views of government officials,” and that “state officials 

with front-line responsibility for administering [a state program] be given latitude 

and substantial discretion.” Frew, 540 U.S. at 442 (internal quotation marks omitted). 

Importantly, federal consent decrees are temporary solutions that may be kept 

in place only as long as necessary to cure an unlawful condition. See Missouri v. 

Jenkins, 515 U.S. 70, 88-89 (1995). The Supreme Court has cautioned that federal 

courts should not continue their “oversight of state programs for long periods of time 

. . . absent an ongoing violation of federal law.” Frew, 540 U.S. at 441. Thus, a 

“federal court must exercise its equitable powers to ensure that when the objects of 

the decree have been attained, responsibility for discharging the State’s obligations is 

returned promptly to the State and its officials.” Id. at 442. Keeping a consent decree 

in place any longer than necessary to assure compliance with federal law risks 

violating principles of federalism and “improperly depriv[ing] future officials of their 

designated legislative and executive powers.” Id. at 441; see also John B v. Emkes, 

710 F.3d 394, 398 (6th Cir. 2013) (stating that a consent decree “may remain in force 

only as long as it continues to remedy a violation of federal law”); United States v. 

Washington, 573 F.3d 701, 710 (9th Cir. 2009) (“The [Supreme] Court has repeatedly 

reminded us that institutional reform injunctions were meant to be temporary 

solutions, not permanent interventions, and could be kept in place only so long as the 

violation continued.”). 
28 

b. Rufo v. Inmates of Suffolk County Jail

In Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 372 (1992), pretrial 

detainees held at a county jail in Massachusetts sued the county, state, and related 

entities, claiming they were being held under unconstitutional conditions. The district 

court ruled that conditions at the jail were constitutionally deficient; thus, the district 

court enjoined the state defendants from, among other things, housing two or more 

inmates in a single cell. Id. at 372–73. When conditions at the jail did not improve, 

the district court ordered the state defendants to renovate another existing facility to 

serve as a substitute detention center. Id. at 373–74. The First Circuit affirmed and 

ordered that the jail be closed unless the state defendants timely presented a plan to 

create a constitutionally adequate facility for the pretrial detainees. Id. at 374. 

Days before the deadline to present a plan for a new facility, the state 

defendants submitted a plan to create a substitute facility with only single-occupancy 

cells, and the district court entered a consent decree obligating the state defendants to 

construct a facility containing 309 single occupancy rooms. Id. at 374–75. When the 

inmate population outpaced population projections, the parties moved the district 

court to modify the decree to provide a facility with an increased number of cells. Id.

at 375–76. The district court granted the modification on the condition that “singlecell occupancy is maintained” under the new plan for the facility. Id. at 376. 

The state defendants again moved to modify the consent decree, this time to 

allow for double bunking of male detainees in roughly one-third of the cells in the 

new jail. Id. The state defendants attributed the need for a second modification to a 
29 

further increase in the population of pretrial detainees. Id. The state defendants 

argued that the continued increase in the pretrial detainee population—a change in 

fact—coupled with a change in law regarding the constitutionality of double bunking 

pretrial detainees, see Bell v. Wolfish, 441 U.S. 520 (1979), supported the requested 

modification. Rufo, 502 U.S. at 376. The district court denied the motion, in part, 

because the state defendants failed to make a “clear showing of [a] grievous wrong 

evoked by new and unforeseen conditions.” Id. at 377 (quoting United States v. Swift 

& Co., 286 U.S. 106, 119 (1932)). The district court explained that modification 

would violate a primary purpose of the decree—to provide for a separate cell for each 

detainee—although it never decided whether double celling would be 

unconstitutional. Id. at 377. The First Circuit affirmed. Id. 

The Supreme Court granted certiorari and remanded so the lower courts could 

apply the proper standard to modification requests under Rule 60(b)(5). See id. at 

393. The Court began by emphasizing the need for flexibility when considering a 

motion for modification of a consent decree in institutional reform litigation. Id. at 

380–83. After all, consent decrees in such cases “often remain in place for extended 

periods of time, [meaning] the likelihood of significant changes occurring during the 

life of the decree is increased.” Id. at 380. The Court further explained that the 

experience of the Courts of Appeals “demonstrated that a flexible approach is often 

essential to achieving the goals of reform litigation,” as the Courts of Appeals 

observed that consent decrees frequently “reach beyond the parties involved directly 
30 

in the suit and impact [] the public’s right to the sound and efficient operation of its 

institutions.” Id. at 381 (internal quotation marks omitted). 

The Court then outlined what a movant must show when seeking modification 

of a consent decree under Rule 60(b)(5). The party seeking modification of a consent 

decree bears the burden of showing that “a significant change either in factual 

conditions or in law” warrants revision of the decree. Id. at 384. Changed factual 

circumstances may warrant modification of a consent decree when the changed 

circumstances “make compliance with the decree substantially more onerous,” when 

“a decree proves to be unworkable because of unforeseen obstacles,” or when 

“enforcement of the decree without modification would be detrimental to the public 

interest.” Id. at 384. A party need not show that a change in fact was both unforeseen 

and unforeseeable. Id. at 385. 

Conversely, a court should deny a party’s request for a modification under 

Rule 60(b)(5) if the party merely establishes that “it is no longer convenient [for the 

moving party] to live with the terms of a consent decree.” Id. at 383. Furthermore, a 

modification should be denied “where a party relies upon events that actually were 

anticipated at the time it entered into a decree.” Id. at 385. The Court explained: 

If it is clear that a party anticipated changing conditions that would 

make performance of the decree more onerous but nevertheless agreed 

to the decree, that party would have to satisfy a heavy burden to 

convince a court that it agreed to the decree in good faith, made a 

reasonable effort to comply with the decree, and should be relieved of 

the undertaking under Rule 60(b). 

Id.
31 

 If a party meets its burden of establishing a change in fact that warrants 

modification of a consent decree, the district court should examine “whether the 

proposed modification is suitably tailored to the changed circumstance.” Id. at 391. 

This analysis focuses on whether the proposed modification “is tailored to resolve the 

problems created by the change in circumstances.” Id. In performing this analysis, a 

court must bear in mind that the public interest and principles of federalism require a 

federal court to defer to state or local government officials and to consider a state or 

local government’s financial constraints. Id. at 392. But a modification “must not 

create or perpetuate a constitutional violation.” Id. at 391. Additionally, in accord 

with the requirement that a modification be tailored to the change in circumstances, 

the existence of a change in circumstances often will not justify a modification to the 

consent decree that lowers the terms of the consent decree to “the constitutional 

floor.” Id. In this sense, a court modifying a consent decree may “do no more” to the 

consent decree than is warranted by the change in circumstances and “should not 

‘turn aside to inquire whether some of the provisions of the decree . . . could have 

been opposed with success if the defendants had offered opposition.’” Id. at 391-92 

(quoting United States v. Swift & Co., 286 U.S. 106, 116-17 (1932)). Thus, even 

where a change in circumstances occurs, the plaintiff will retain those benefits 

secured under the consent decree that are not impugned by the change in 

circumstances. See id.

The Court then instructed the district court on remand to first consider whether 

the purported change in factual circumstances—the upsurge in the pretrial detainee 
32 

population—was foreseen by the state defendants. Id. at 385. But the Court also 

advised that the district court erred by concluding that modification was 

inappropriate simply because it would not provide for a separate cell for each 

detainee. The Court explained: 

Even if the decree is construed as an undertaking by [the state 

defendants] to provide single cells for pretrial detainees, to relieve 

[them] from that promise based on changed conditions does not 

necessarily violate the basic purpose of the decree. That purpose was to 

provide a remedy for what had been found, based on a variety of factors, 

including double celling, to be unconstitutional conditions obtaining in 

the [jail]. If modification of one term of a consent decree defeats the 

purpose of the decree, obviously modification would be all but 

impossible. That cannot be the rule. The District Court was thus in error 

in holding that . . . modification of the single cell requirement was 

necessarily forbidden. 

Id. at 387. 

c. Horne v. Flores

In Horne v. Flores, 557 U.S. 433, 439 (2009), the Supreme Court was again 

tasked with determining whether the lower courts applied the correct standard in 

denying a Rule 60(b)(5) motion. There, a class of English Language-Learner (ELL) 

students and their parents in Arizona sued the state for violating the Equal 

Educational Opportunities Act of 1974 (EEOA), which requires a state “to take 

appropriate action to overcome language barriers that impede equal participation by 

its students in its instructional programs.” Id. at 438–39. After a trial, the district 

court concluded that “defendants were violating the EEOA because the amount of 

funding the State allocated for the special needs of ELL students (ELL incremental 
33 

funding) was arbitrary and not related to the actual funding needed to cover the costs 

of ELL instruction.” Id. at 441. 

Over the next several years, the district court entered various additional orders 

and injunctions aimed at improving the state’s ELL incremental funding. Id. For 

instance, the court ordered the state to “prepare a cost study to establish the proper 

appropriation to effectively implement ELL programs.” Id. (internal quotation marks 

omitted). And it later required the state to, within ninety days of the order’s issuance, 

“appropriately and constitutionally fund the state’s ELL programs taking into account 

the [court’s] previous orders.” Id. After the state failed to comply with these orders, 

the district court held the state in contempt and imposed a fine for every day until the 

state came into compliance. Id. at 442. 

After accruing over $20 million in fines, the state legislature passed HB 2064, 

a bill that was designed “to implement a permanent funding solution to the problems 

identified” by the district court. Id. The Governor allowed HB 2064 to become law 

without her signature, and the state presented it to the district court for approval. Id.

at 443. Because the Governor did not approve of HB 2064’s funding provisions, two 

members of the state legislature intervened to support the bill. Id. Intervenors then 

moved to “purge” the district court’s contempt order in light of HB 2064 and, in the 

alternative, for relief under Rule 60(b)(5) based on changed circumstances. Id. The 

district court denied the Rule 60(b)(5) motion because HB 2064 “did not establish a 

funding system that rationally relates funding available to the actual costs of all 

elements of ELL instruction.” Id. at 444 (internal quotation marks omitted). The 
34 

Ninth Circuit affirmed, stating that “relief would be appropriate only if petitioners 

had shown either that there are no longer incremental costs associated with ELL 

programs in Arizona or that Arizona had altered its funding model.” Id. at 445 

(internal quotation marks omitted). 

The Supreme Court reversed. The Court first reiterated that a party may move 

to modify or vacate an order under Rule 60(b)(5) if “‘a significant change either in 

factual conditions or in law’ renders continued enforcement ‘detrimental to the public 

interest.’” Id. at 447 (quoting Rufo, 502 U.S. at 384). “[O]nce a party carries this 

burden, a court abuses its discretion when it refuses to modify an injunction or 

consent decree in light of such changes.” Id. at 447–49 (internal quotation marks 

omitted). 

The Court then stressed that Rule 60(b)(5) serves an important function in 

institutional reform litigation for three reasons. Id. First, injunctions and consent 

decrees in such cases often remain in place for many years, “and the passage of time 

frequently brings about changed circumstances” (e.g., “changes in the nature of the 

underlying problem” and “new policy insights”) “that warrant reexamination of the 

original judgment.” Id. at 448. Second, injunctions and decrees in reform cases tend 

to “raise sensitive federalism concerns” because such cases often “involve[] areas of 

core state responsibility.” Id. And those federalism concerns “are heightened when 

. . . a federal court decree has the effect of dictating state or local budget priorities.” 

Id. 
35 

Recognizing that states have limited resources, the Court expressed sensitivity 

toward the fact that “[w]hen a federal court orders that money be appropriated for 

one program, the effect is often to take funds away from other important programs.” 

Id. Third, seemingly endless injunctions and decrees in these types of cases 

commonly “bind state and local officials to the policy preferences of their 

predecessors and may thereby ‘improperly deprive future officials of their designated 

legislative and executive powers.’” Id. at 449 (quoting Frew, 540 U.S. at 441). 

Successor officials may bring new insights and solutions to ongoing “problems of 

allocating revenues and resources,” but overbroad or outdated decrees may inhibit 

their ability to respond to those problems and fulfill their duties as democraticallyelected officials. Id. In sum, a long-lasting and unmodified consent decree not only 

raises serious federalism concerns but it may also restrain the opportunities for the 

class protected by the decree because an overbroad and unyielding decree limits 

financial resources available to governments for the implementation of new 

innovations and policies that may serve the needs of the protected class better than 

the requirements embodied in the decree. 

For the foregoing reasons, courts must take a flexible approach to motions 

under Rule 60(b)(5) where the moving party seeks relief from a long-lasting decree. 

Id. at 450. This flexible approach “seeks to return control to state and local officials 

as soon as a violation of federal law has been remedied.” Id. at 451. To that end, 

courts must be wary “that ‘federal-court decrees exceed appropriate limits if they are 

aimed at eliminating a condition that does not violate federal law or does not flow 
36 

from such a violation.’” Id. at 450 (quoting Milliken, 433 U.S. at 282). “‘If a federal 

consent decree is not limited to reasonable and necessary implementations of federal 

law,’ it may ‘improperly deprive future officials of their designated legislative and 

executive powers.’” Id. (quoting Frew, 540 U.S. at 441). 

Accordingly, “a critical question in [the] Rule 60(b)(5) inquiry is whether the 

objective of the [challenged decree] has been achieved.” Id. (citing Frew, 540 U.S. at 

442). “If a durable remedy has been implemented, continued enforcement of the 

order is not only unnecessary, but improper.” Id. (citing Milliken, 433 U.S. at 282). 

Applying these standards, the Court in Horne concluded that the Ninth Circuit 

erred in two ways. First, instead of applying a flexible approach, the Ninth Circuit 

“used a heightened standard that paid insufficient attention to federalism concerns.” 

Id. at 451. Based on the federalism concerns, application of a flexible approach was 

“critical.” Id. at 452. The Court instructed that application of the flexible approach 

requires that “‘[w]hen the objects of the decree have been attained’—namely, when 

[compliance with federal law] has been achieved—‘responsibility for discharging the 

State’s obligations must be returned to the State and its officials.’” Id. (quoting Frew, 

540 U.S. at 442). 

Second, the Court held that instead of “inquiring broadly into whether changed 

conditions in [the schools] provided evidence of an ELL program that complied with 

the EEOA,” id. at 451, the Ninth Circuit performed an inquiry that was “too narrow,” 

“focus[ing] almost exclusively on the sufficiency of incremental funding,” id. at 452. 

But the narrow inquiry—focusing on whether a prior judgment has been satisfied—
37 

addresses only one of the bases for relief under Rule 60(b)(5) and fails to consider 

whether relief is warranted because “applying [a judgment] prospectively is no longer 

equitable.” Id. at 454. For purposes of the equity basis for modification, the Ninth 

Circuit’s narrow inquiry also overlooked the possibility that specific items in an 

initial decree may, with the passage of time and changing circumstances, no longer 

be the only way, or even the best way, to attain the objects of the decree and assure 

compliance with federal law. See id. at 447–48, 451–54. 

To determine whether relief was proper under the equity basis for 

modification, the Ninth Circuit “needed to ascertain whether ongoing enforcement of 

the original order was supported by an ongoing violation of federal law.” Id. at 454 

(citing Milliken, 433 U.S. at 282); see also id. at 468 (repeating that a proper Rule 

60(b)(5) inquiry should ask whether the school district “is now providing equal 

educational opportunities to ELL students”). 

The Court explained that while the Ninth Circuit focused on ELL incremental 

funding, “funding is simply a means [of complying with the EEOA], not the end 

(here, the EEOA).” Id. at 454–55. By requiring the state “to demonstrate ‘appropriate 

action’ [mandated by the EEOA] through a particular funding mechanism, the Court 

of Appeals improperly substituted its own educational and budgetary policy 

judgments for those of the state and local officials to whom such decisions are 

properly entrusted.” Id. at 455. Stated otherwise, the Ninth Circuit should have 

“consider[ed] the broader question whether, as a result of important changes during 
38 

the intervening years, the State was fulfilling its obligation under the EEOA by other 

means.” Id. at 439. 

The Court then remanded for the district court to make “up-to-date” findings 

and to consider whether four changed circumstances advanced by the defendants 

warranted releasing the state from the earlier judgment. See id. at 469–70. 

d. Applicability of Horne & Tension between Horne and Rufo

As opposed to the present case that features a Rule 60(b)(5) motion seeking a 

modification of a consent decree, Horne involved a Rule 60(b)(5) motion seeking a 

modification of a court-issued injunction, as well as additional orders crafted by the 

district court. See id. at 441. Lower courts have reached different conclusions 

regarding the force of Horne in the context of a Rule 60(b)(5) motion seeking 

modification of a consent decree. See Burt v. Cty. of Contra Costa, 2014 WL 253010, 

at *18–19 (N.D. Cal. Jan. 22, 2014) (discussing opposing conclusions by district 

courts that have analyzed extent of Horne’s applicability to consent decrees); see also 

Evans v. Fenty, 701 F. Supp. 2d 126, 165–67, 170–71 (D.D.C. 2010) (questioning 

applicability of Horne to modification of consent decree and relying primarily on 

inquiry established in Rufo and Frew when evaluating propriety of enforcement 

beyond minimum requirements of federal law). The Sixth Circuit, however, did not 

express any hesitation regarding applying Horne to a Rule 60(b)(5) motion seeking 

modification of a consent decree. See John B., 710 F.3d at 411–14. In fact, the Sixth 

Circuit, in John B., concluded that where a defendant subject to a consent decree in 

institutional reform litigation has implemented a durable remedy to cure the federal 
39 

violation underlying the decree, Horne’s admonition that continued enforcement of 

the decree is “improper” controls and requires vacatur of the consent decree. Id. at 

411–13. 

Three considerations compel us to join the Sixth Circuit’s apparent conclusion 

that Horne fully applies to a Rule 60(b)(5) motion seeking modification of a consent 

decree. First, while the parties may form the essential terms of a consent decree, as 

we noted earlier when discussing our jurisdiction over this appeal, a district court’s 

order approving the consent decree is tantamount to a final judgment on the merits. 

See supra 22 (citing Johnson, 393 F.3d 1096, 1101 (10th Cir. 2004)). 

Second, when discussing the proper inquiries for evaluating a Rule 60(b)(5) 

motion in institutional reform litigation, Horne uses “consent decree” or “decree” 

interchangeably with injunction and court order even though Horne involved 

requested modifications to an injunction and several court orders but did not involve 

a consent decree. See Horne, 557 U.S. at 448–50. From this, we glean that the Court 

considers a consent decree and an injunctive order equivalent for purposes of 

evaluating a Rule 60(b)(5) motion for modification. And had the Court intended to 

limit Horne to institutional reform litigation involving only injunctions and court 

crafted orders, it could have easily done so explicitly. The Court, however, did not so 

limit its holding, and the plain language of Horne supports the conclusion that the 

decision applies with equal force to all institutional reform cases, including those 

cases featuring consent decrees. 
40 

Third, the same federalism concerns at the heart of Horne are present in 

institutional reform cases featuring consent decrees. Admittedly, the acquiescence of 

state or local governmental officials to the terms of a consent decree might diminish 

federalism concerns at the inception of the decree. But where, as here, a consent 

decree remains in effect for decades, enforcement of the decree necessarily interjects 

a federal court into local affairs and binds local governmental officials who were not 

parties to the consent decree. The federal court, thereby, effectively limits the 

democratic process by restricting the array of resources available to the governmental 

officials for the enactment of other policies. 

Applying Horne to Rule 60(b)(5) motions for modifications to consent decrees 

does not come without complication. Notably, an apparent tension exists between 

Horne and Rufo with respect to the appropriate course of action where a party 

seeking modification has brought itself into compliance with federal law but has not 

substantially complied with the specific terms of the consent decree or court order. 

Compare Horne, 557 U.S. at 450 (“If a durable remedy [addressing the federal law 

violation] has been implemented, continued enforcement of the order is not only 

unnecessary, but improper.”), with Rufo, 502 U.S. at 391 (“A proposed modification 

should not strive to rewrite a consent decree so that it conforms to the constitutional 

floor.”). 

To the extent Rufo and Horne differ as to the appropriate course of action 

when a party seeks a Rule 60(b)(5) modification to an order in an institutional reform 

case, two considerations cause us to follow the course outlined in Horne when the 
41 

significant change advanced as the basis for Rule 60(b)(5) modification is the 

defendant’s alleged ongoing compliance with federal law. First, Rufo involved a 

proposed modification to a plan that, if faithfully implemented over time, would 

eventually cure the federal law violation. See id. at 376 (describing requested 

modification at issue as allowing for some double bunking in new facility yet to be 

completed or opened). As such, unlike in Horne where the defendants alleged that 

they had remedied the federal law violation, the defendants in Rufo had not yet 

remedied the issues with overcrowding and neglect in maintaining the jail that gave 

rise to the litigation. And, where the Rufo defendants had not remedied the issues 

giving rise to the litigation, it naturally follows that the Rufo defendants, unlike the 

Horne defendants, were not in a position to establish the implementation of a durable 

remedy. Further, nothing in Rufo suggests that the proposed modification would 

equate with, or for that matter exceed, the constitutional floor. Thus, while Rufo is 

undoubtedly informative on many issues surrounding the Rule 60(b)(5) standard for 

modifying a consent decree, its statement about not striving to modify a consent 

decree to the constitutional floor is not germane to its decision. 

Second, Horne represents the Court’s most recent proclamation regarding the 

standard for obtaining a modification to an order in institutional reform litigation. 

And, as noted by scholars, Horne is the latest ruling in a trend of decisions that lower 

the threshold for defendants to obtain a modification to, or the dissolution of, orders 

in long-lasting institutional reform cases. Jason Parkin, Aging Injunctions & the 

Legacy of Institutional Reform Litigation, 70 Vand. L. Rev. 167, 193–94 & n.136 
42 

(2017) (citing Catherine Y. Kim, Changed Circumstances: The Federal Rules of Civil 

Procedure and the Future of Institutional Reform Litigation After Horne v. Flores, 46 

U.C. Davis L. Rev. 1435, 1466 (2013), and Mark Kelley, Note, Saving 60(b)(5): The 

Future of Institutional Reform Litigation, 125 Yale L.J. 272, 307 (2015)). 

As we read Horne, if a party seeking modification to a consent decree 

demonstrates a significant change in circumstances, the district court must take a 

flexible approach and consider whether the moving party has implemented a durable 

remedy to cure the federal law violation underlying the institutional reform litigation. 

See John B., 710 F.3d at 412 (“In applying this flexible approach, we must answer 

two questions: first whether the state has achieved compliance with the federal-law 

provisions whose violation the decree sought to remedy; and second, whether the 

State would continue that compliance in the absence of continued judicial 

supervision.”); see also Petties ex rel. Martin v. District of Columbia, 662 F.3d 564, 

569, 571 (D.C. Cir. 2011) (applying Horne’s statement that district court “ought to 

have ‘applied a flexible standard that seeks to return control to state and local 

officials as soon as a violation of federal law has been remedied’” to context of 

requested modification to preliminary injunction (quoting Horne, 557 U.S. at 450–

51)). The district court, by way of its role in overseeing the institutional reform 

litigation for many years, is in the best position to evaluate both whether a party has 

complied with federal law and, if so, whether the party is committed to ongoing 

compliance with federal law in the absence of oversight by the federal court. See 

Petties, 662 F.3d at 571 (recognizing that district court’s management of litigation 
43 

“for many years” places district court in position to assess likelihood of compliance 

with federal law absent oversight). Likewise, the district court is also in the best 

position to assess whether the litigation has taken on a life of its own and now 

advances a purpose removed from remedying the initial violation(s) or whether 

continued oversight remains necessary to ensure compliance with federal law. 

Finally, we note that when applying the flexible approach and evaluating 

whether a moving party implemented a durable remedy, a district court must consider 

the totality of the moving party’s efforts to demonstrate sustained compliance with 

federal law. In this respect, there is not a single path, such as the adoption of new 

legislation, by which a party can demonstrate the implementation of a durable 

remedy. See id., 662 F.3d at 569–71 (remanding for determination of whether 

adoption of new internal policies, coupled with improved record of compliance with 

federal law, satisfied durable remedy requirement). Several of the desegregation 

cases, although arguably not directly on point, highlight the broad inquiry a district 

court must undertake when determining a party’s commitment to abiding by federal 

law. Specifically, factors that a district court may consider include the party’s 

commitment to compliance, the duration of the party’s compliance with federal law, 

and whether or not the effects of the violation of federal law persist. See Freeman v. 

Pitts, 503 U.S. 467, 490 (1992) (holding that the district court may relinquish 

desegregation control in incremental stages, and stating that: “one of the prerequisites 

to relinquishment of control in whole or in part is that a school district has 

demonstrated its commitment to a course of action that gives full respect to the equal 
44 

protection guarantees of the Constitution”); id. at 491 (listing relevant factors in 

determining whether partial withdrawal of federal desegregation oversight is 

appropriate as including whether the school district has demonstrated “its good-faith 

commitment to the whole of the court’s decree and to those provisions of the law and 

the Constitution that were the predicate for the judicial intervention in the first 

instance”); Bd. of Educ. of Oklahoma City Pub. Sch. v, Dowell, 498 U.S. 237, 249–50 

(1991) (stating that “[t]he district court should address itself to whether the Board 

had complied in good faith with the desegregation decree since it was entered, and 

whether the vestiges of past discrimination had been eliminated to the extent 

practicable” while also considering the lengthy period of time during which the 

Board complied with the federal court’s oversight). 

e. Summary

From the foregoing discussion of Rufo, Horne, and other institutional reform 

litigation cases, several principles emerge that are critical to our analysis of whether 

Defendants are entitled to relief under Rule 60(b)(5). 

First, a motion for relief from a consent decree based on an assertion that 

“applying it prospectively is no longer equitable” demands a different focus than a 

motion based on an assertion that “the judgment has been satisfied, released or 

discharged.” See Fed. R. Civ. P. 60(b)(5); Horne, 557 U.S. at 454. With respect to the 

latter ground for relief, it is appropriate for a court to focus on whether the movant 

has satisfied each obligation set forth in the consent decree. But where, as here, the 

movant contends that changed circumstances have rendered further enforcement of 
45 

the consent decree no longer equitable, the inquiry is whether the movant has shown 

(a) that a significant change in factual circumstances or in law warrants revision of 

the decree, and (b) that the requested modification is suitably tailored to the changed 

circumstance. Rufo, 502 U.S. at 383–84, 391. A movant may establish that changed 

factual circumstances warrant modification when (i) the changed circumstances 

“make compliance with the decree substantially more onerous,” (ii) a “decree proves 

to be unworkable because of unforeseen obstacles,” or (iii) “enforcement of the 

decree without modification would be detrimental to the public interest.” Id. at 384. 

It is an abuse of discretion for a district court to deny a motion for modification 

where the moving party meets this burden. Horne, 557 U.S. at 447. 

 Second, a flexible approach to evaluating the equities of such a motion is 

crucial where, as in this case, institutional reform is sought. Horne, 557 U.S. at 450; 

Rufo, 502 U.S. at 380–81. Consent decrees in reform cases often remain in effect for 

extended periods, thereby increasing the prospect that a significant change in factual 

circumstances will occur. Horne, 557 U.S. at 447–48; Rufo, 502 U.S. at 380. Consent 

decrees also tend to restrict state and local officials’ ability to implement new ideas 

to old problems. Horne, 557 U.S. at 449; Rufo, 502 U.S. at 381. And they raise 

sensitive federalism concerns that are heightened when a decree effectively dictates 

state or local budget priorities. Horne, 557 U.S. at 448. 

 Third, when a party seeks termination or vacatur of a consent decree based on 

the inequity of continued oversight, a court must determine not only whether changed 

circumstances exist, but also whether the “objective” of the decree—that is, whether 
46 

compliance with federal law—has been attained. See id. at 450 (noting that “a critical

question in [the] Rule 60(b)(5) inquiry is whether the objective of the District Court’s 

[initial] order—i.e., satisfaction of the EEOA’s ‘appropriate action’ standard—has 

been achieved” (emphasis added) (citing Frew, 540 U.S. at 442)); id. at 454 

(concluding that the Ninth Circuit “needed to ascertain whether ongoing enforcement 

of the original order was supported by an ongoing violation of federal law” (emphasis 

added) (citing Milliken, 433 U.S. at 282)); id. at 468 (reiterating that the Ninth 

Circuit should have asked whether the school district was meeting the EEOA’s 

“appropriate action” requirement); see also Milliken, 433 U.S. at 282 (explaining that 

a decree must be “tailored to cure the condition that offends” federal law and seek to 

restore victims of unlawful conduct to the position they would have occupied absent 

the unlawful conduct (internal quotation marks omitted)); John B., 710 F.3d at 411 

(stating that a court considering a Rule 60(b)(5) motion “must determine whether 

‘ongoing enforcement of the original order [is] supported by an ongoing violation of 

federal law’” (alteration in original) (emphasis added) (quoting Horne, 557 U.S. at 

454)); Washington, 573 F.3d at 710 (interpreting Horne and Rufo as requiring a court 

to “consider whether the purpose of the decree” has been achieved). So where the 

basis of the Rule 60(b)(5) motion is that continued enforcement of the decree is no 

longer equitable, instead of inquiring narrowly whether the specific obligations of a 

consent decree have been attained, the court must broadly inquire whether the party 

obligated by the decree is at that time in compliance with federal law. Horne, 557 

U.S. at 451–52; see also id. at 439 (stating that the lower courts needed to ask the 
47 

broader question whether the state “was fulfilling its obligation under the EEOA by 

other means”). And once compliance with federal law has been attained, a court must 

return control over the program to the state and its officials, provided a durable 

remedy is in place. See id. at 452 (“‘When the objects of the decree have been 

attained’—namely, when EEOA compliance has been achieved—‘responsibility for 

discharging the State’s obligations [must be] returned promptly to the State and its 

officials.’” (alteration in original) (quoting Frew, 540 U.S. at 442)); see also Frew, 

540 U.S. at 442 (“The federal court must exercise its equitable powers to ensure that 

when the objects of the decree have been attained, responsibility for discharging the 

State’s obligations is returned promptly to the State and its officials.” (emphasis 

added)); Washington, 573 F.3d at 709 (“The Constitution does not establish the 

district courts as permanent administrative agencies.”). 

 Last, the existence of a durable remedy may warrant disengagement of judicial 

oversight. The Horne Court’s single reference to a durable remedy states: 

[A] critical question in this Rule 60(b)(5) inquiry is whether the 

objective of the District Court’s [initial] order—i.e., satisfaction of the 

EEOA’s “appropriate action” standard—has been achieved. See [Frew,] 

540 U.S. at 442. If a durable remedy has been implemented, continued 

enforcement of the order is not only unnecessary, but improper. See 

Milliken, [433 U.S.] at 282. 

Horne, 557 U.S. at 450. From the latter sentence, it is fair to conclude that if a 

durable remedy is in place, then the movant has attained the more-general objects of 

the decree—i.e., compliance with federal law. We interpret the Court’s reference to a 

“durable remedy” as recognition that fleeting federal compliance is insufficient to 
48 

warrant relief. Thus, a district court, in assessing whether further oversight is 

equitable, may and should consider the totality of defendants’ efforts to comply with 

federal law and defendants’ commitment to remaining in compliance with federal 

law. Such is the approach adopted by two of our sister circuits subsequent to Horne. 

See supra 41-43 (discussing application of Horne’s durable remedy language in John 

B., 710 F.3d 391 and Petties, 662 F.3d 564). 

And like our sister circuits, we do not read the language in Horne too 

restrictively with respect to what may constitute a durable remedy. The Court has 

admonished against taking language from its opinions out of context and giving it 

“talismanic quality.” Rufo, 502 U.S. at 380. Recall that, in Rufo, the district court 

denied modification of the consent decree because the state defendants had failed to 

meet the “clear showing of grievous wrong” evoked by the Court in United States v. 

Swift & Co., 286 U.S. 106 (1932). Rufo, 502 U.S. at 377. The Court acknowledged 

that the “grievous wrong” language used in Swift, if “[r]ead out of context,” 

“suggests a ‘hardening’ of the traditional flexible standard for modification of 

consent decrees.” Id. at 379. It explained, however, that such a reading would be 

inconsistent with Rule 60(b)(5): “That Rule, in providing that, on such terms as are 

just, a party may be relieved from a final judgment or decree where it is no longer 

equitable that the judgment have prospective application, permits a less stringent, 

more flexible standard.” Id. at 380. A similarly cautious reading of the “durable 

remedy” language in Horne is appropriate here. 
49 

When a Rule 60(b)(5) movant has established both the absence of an ongoing 

violation of federal law and a future commitment to remain in compliance with 

federal law, federalism concerns should inform a court’s flexible determination as to 

how a consent decree will be modified. Rule 60(b)(5) dictates as much. See Rufo, 502 

U.S. at 380. Accordingly, there is no one way for a movant to show that its federal 

compliance is more than fleeting. For example, a movant may establish its 

commitment to future compliance through the adoption of a durable remedy—such as 

a statute designed to cure the specific federal violation. See Horne, 557 U.S. at 450. 

A movant may also establish its commitment to future compliance through a record 

of sustained good-faith efforts to remedy federal violations and, to the extent 

possible, eliminate the vestiges of the federal violation. See Freeman, 503 U.S. at 

490, 498; Dowell, 498 U.S. at 248–49. Ultimately, the district court’s wealth of 

experience overseeing the litigation should inform its assessment of whether the 

Defendants are now in compliance with federal law, and whether they are committed 

to remaining in compliance.6

 In summation, if Defendants here can show they are no longer violating the 

class members’ federal rights, and the district court has reason to believe Defendants’ 

compliance with federal law is durable, then “continued enforcement of the District 

Court’s original order[s] is inequitable within the meaning of Rule 60(b)(5), and 

relief is warranted.” Horne, 557 U.S. at 470; see also John B., 710 F.3d at 413; 

 6

 Here, the district court has been involved with this case for three decades. It 

has personal knowledge of the efforts by the Defendants to meet their obligations and 

the complexity involved in setting compliance measures. 
50 

Petties, 662 F.3d at 570-71. To require more under those circumstances would raise 

serious federalism concerns. It also would conflict with the Supreme Court’s 

admonition that a federal consent decree should do no more than remedy a condition 

that violates federal law. Milliken, 433 U.S. at 282. Once the offending condition has 

been cured, the Court has instructed that responsibility over the state program must 

be returned promptly to the state and its officials. Frew, 540 U.S. at 442; see also 

Horne, 557 U.S. at 450–51 (stating the flexible standard under Rule 60(b)(5) “seeks 

to return control to state and local officials as soon as a violation of federal law has 

been remedied”). And in weighing the equities, the district court should avoid 

imposing an inflexible standard that risks depriving future officials of their 

legislative and executive powers. See Horne, 557 U.S. at 449. After all, such 

inflexibility is unnecessary to protect the federal interests at the heart of the 

institutional reform litigation. If the state again violates federal law, victims may file 

a new lawsuit to bring the state back into compliance. Elected officials may also be 

held accountable to the citizenry through the political process. For all of these 

reasons, we conclude that Defendants may satisfy the durability required by Horne in 

a number of ways, including: by taking specific, long-term actions aimed at curing 

the federal violations, by making good faith efforts to obtain compliance, or by 

operating in conformity with federal law for a reasonable period of time. 

3. Application 

Since this case’s inception, the district court has expended considerable effort 

and displayed exceptional skill resolving the numerous issues that have arisen. 
51 

Despite this fine stewardship, two aspects of the ruling on Defendants’ Rule 60(b)(5) 

motion require us to vacate the June 2016 order and to remand for further 

proceedings in the district court. 

First, the district court’s determination that there are no changed circumstances 

appears to be inconsistent with its factual findings. Defendants maintain that changed 

factual circumstances warrant relief, including that (a) their obligations have 

increased in number and complexity to the point the obligations have become 

substantially onerous, (b) they remedied the constitutional violations giving rise to 

this litigation and are in compliance with federal law, and (c) increased costs to 

litigate this case and to provide services to class members have inhibited the State’s 

ability to fund other important programs such that continued enforcement of the 

decree is contrary to the public interest. 

Although the district court concluded that Defendants “have not presented 

sufficient changed circumstances . . . to warrant the requested relief,” Jackson III, 

2016 WL 9777237, at *17, the court seemingly endorsed Defendants’ argument that 

their “task ha[d] become incomprehensible, if not insurmountable,” and recognized 

that their outstanding obligations “are onerous,” id. at *14.7

 The court also 

 7

 Defendants may have anticipated at the time they entered into the pertinent 

decrees that the number and complexity of obligations would substantially increase. 

After all, their obligations did not become onerous as a result of changed factual 

circumstances occurring after they entered into the decrees—it was the act of 

entering into the decrees itself that multiplied their obligations. On remand, if the 

district court finds that Defendants anticipated that their obligations would 

substantially increase in number and complexity, Defendants would have to “satisfy a 

heavy burden to convince [the] court that [they] agreed to the decree[s] in good faith, 
52 

acknowledged that the “increasing fees and costs associated with this litigation are 

detrimental to the State’s interest,” that “more than 25 years of orders and 

stipulations have restricted the State’s ability to make basic decisions concerning its 

budget,” and that “it is doubtful that the outlay of over 5 million dollars of attorney’s 

fees and costs every year is directly assisting” class members. Id. at *16. Indeed, the 

district court noted that Defendants have spent more than $50 million related to this 

litigation in the last decade, id. at *12, and that, as of 2009, the average yearly costs 

to provide services to class members had risen from $67,290.00 to $135,535.000 per 

class member, while the State’s $32,992.00 per capita income was the ninth lowest in 

the nation, id. at *13. 

Despite accepting these facts advanced by Defendants, the district court 

concluded, without adequate explanation, that the facts did not amount to a 

significant change in circumstances. But the district court’s conclusion that the 

obligations on the Defendants are “onerous” suggests Defendants established a 

significant change in circumstances under Rufo’s first two prongs for showing a 

change in facts warranting modification—that “changed factual conditions make 

compliance with the decree substantially more onerous” and that “a decree proves to 

be unworkable because of unforeseen obstacles.” See Rufo, 502 U.S. at 384. 

Similarly, the district court’s findings concerning the increased fees and costs, and 

how they have restricted the State’s ability to make decisions about its budget, 

 

made a reasonable effort to comply with the decree[s], and should be relieved of the 

undertaking under Rule 60(b).” Rufo, 502 U.S. at 385. 
53 

suggest that continued enforcement of the decrees is detrimental to the public 

interest. See Horne, 557 U.S. at 447 (explaining that Rule 60(b)(5) “provides a means 

by which a party can ask a court to . . . vacate a judgment or order if a significant 

change either in factual conditions or in law renders continued enforcement 

detrimental to the public interest” (internal quotation marks omitted)); id. at 448 (“A 

structural reform decree eviscerates a State’s discretionary authority over its own 

program and budgets and forces state officials to reallocate state resources and 

funds[.]” (quoting Missouri v. Jenkins, 515 U.S. 70, 131 (1995) (Thomas, J., 

concurring))); id. at 454 (recognizing that a decree is detrimental to the public 

interest when it risks “improperly interfer[ing] with a State’s democratic process”); 

id. at 459 (concluding that the district court’s imposition of heavy fines on the state 

“unquestionably imposed important restrictions on the legislature’s ability to set 

budget priorities”); Small v. Hunt, 98 F.3d 789, 796 (4th Cir. 1996) (stating in a Rule 

60(b)(5) case that the public “has an interest in how its tax dollars are spent”). We 

remand for further explanation of why these facts do not constitute a significant 

change in circumstances.8

 

 8

 To be sure, the district court questioned the timing of the changes relative to 

the Defendants’ pending, August 25, 2015, Rule 60(b)(5) motion. This explanation, 

however, may not justify rejecting the conclusion that a significant change in 

circumstances occurred where (1) Defendants filed a Rule 60(b)(5) motion in 2011 

that the district court terminated without ruling on the merits of the motion and (2) 

the district court made no reference to the requirement in Fed. R. Civ. P. 60(c)(1) that 

a Rule 60(b) motion be “made within a reasonable time.” Of course, on remand, the 

district court is free to perform a Rule 60(c)(1) timeliness analysis and conclude that, 

even in light of the 2011 Rule 60(b)(5) motion, Defendants did not seek relief 

“within a reasonable time” of the change in circumstances upon which they rely. 
54 

Second, federalism concerns are heightened here because the decrees and the 

court’s continued oversight have “the effect of dictating state . . . budget priorities.” 

Horne, 557 U.S. at 448. Despite acknowledging the federalism concerns at play, 

including the lengthy duration of federal oversight and the budgetary constraints 

resulting from continued federal oversight, the district court did not apply the flexible 

approach called for by Horne. Under the flexible approach, the district court needed 

to inquire whether “the objects of the decree[s] have been attained.” Id. at 452 

(internal quotation marks omitted). The court purported to engage in this analysis, 

stating that the objects—or “essential purposes”—of the pertinent decrees “are to 

provide class members with adequate health care, a reasonably safe environment, and 

supported employment opportunities.” Jackson III, 2016 WL 9777237, at *14. The 

court then noted that these “more specific” essential purposes are encompassed in the 

obligations provided in the pertinent decrees. Id. And because Defendants conceded 

they have not substantially complied with many of those decree obligations, the court 

determined that Defendants “have not fulfilled the essential purposes of the pertinent 

decrees.” Id.

Like the Ninth Circuit’s analysis in Horne, the district court’s analysis on this 

point was too narrow, focusing almost entirely on whether defendants had fulfilled 

the numerous, detailed obligations provided in the consent decrees. But because 

Defendants move on the ground that continued enforcement of the consent decrees is 

no longer equitable, the district court should have “ascertain[ed] whether ongoing 

enforcement of the [decrees] was supported by an ongoing violation of federal law,” 
55 

see Horne, 557 U.S. at 454—here, whether Defendants are violating class members’ 

rights under the substantive due process component of the Fourteenth Amendment 

and under the Rehabilitation Act. The court explicitly declined to make this 

determination, stating it “is not in the position to assess, and, therefore, cannot 

conclude that Defendants are no longer violating constitutional or federal law.” 

Jackson III, 2016 WL 9777237, at *16. In declining to make this finding, the district 

court failed to perform an inquiry that we, in accord with both the Sixth Circuit and 

the D.C. Circuit, conclude that Horne requires. See Ohlander, 114 F.3d at 1537 (“A 

clear example of an abuse of discretion exists where the trial court fails to consider 

the applicable legal standard[.]”).9

 

The district court appears to have focused on whether Defendants substantially 

complied with the decree obligations, as well as an overly narrow view of the objects 

of the consent decree. Substantial compliance with all the obligations in the pertinent 

decrees would likely place New Mexico in compliance with federal law. But the 

obligations are merely a means of accomplishing that goal, not the end. See Horne, 

557 U.S. at 454–55. On remand, the court should consider the broader question of 

whether the State is meeting the requirements of the Fourteenth Amendment and the 

Rehabilitation Act by means other than those stated in the consent decrees. See id. at 

439. To be sure, the court concluded that “Defendants have not shown that they have 

fulfilled their outstanding obligations, ‘by other means.’” Jackson III, 2016 WL 

 9

 The burden of showing compliance with federal law is, of course, on the 

Defendants. 
56 

9777237, at *17 (quoting Horne, 557 U.S. at 439). But the court seemingly focused 

on whether Defendants have fulfilled their decree obligations by other means, instead 

of focusing on the broader question of whether Defendants have fulfilled their 

federal-law obligations to class members by means other than those provided in the 

decrees.10 Such an inquiry is critical not only to determining whether Defendants are 

in current compliance with federal law, but also to analyzing whether their 

compliance is durable. In other words, an inquiry into whether Defendants are 

currently in compliance with federal law is a necessary predicate to any inquiry into 

whether that compliance is more than merely fleeting. Unless the court properly 

focuses its inquiry on compliance with federal law, it cannot analyze whether any 

remedy adopted by the state will be effective to maintain such compliance. In turn, 

without analyzing whether Defendants are in compliance with federal law and, if so, 

whether they are likely to maintain compliance with federal law absent continued 

oversight, the district court was not in a proper analytical position to determine 

whether Defendants’ proposed modification of terminating the consent decrees was 

properly tailored to any significant change in circumstances. Thus, after first deciding 

 10 The district court also justified its ruling based on its finding that the 

obligations set forth in the JSD, the Plan of Action, and Appendix A “all flowed from 

[its] original findings of violations in 1990.” Jackson III, 2016 WL 9777237, at *15. 

Accepting this finding as true, all it shows is those decrees do not exceed appropriate 

limits of a federal-court decree. See Horne, 557 U.S. at 450 (stating that “federalcourt decrees exceed appropriate limits if they are aimed at eliminating a condition 

that does not violate [federal law] or does not flow from such a violation” (quoting 

Milliken v. Bradley, 433 U.S. 267, 282 (1977))). But even a decree that is within 

appropriate bounds may be vacated where changed circumstances make prospective 

enforcement of the decree no longer equitable and where the movant has attained 

compliance with federal law. 
57 

whether New Mexico is now in compliance with federal law, the district court should 

assess whether that compliance is durable, or whether the proposed modification is 

not properly tailored to any change in circumstances because equity weighs in favor 

of further federal oversight to assure the protection of the class members’ federal 

rights. 

In sum, due to the public interests and federalism concerns, continued 

enforcement of the consent decrees is warranted only to the extent Defendants are in 

current violation of federal law or have reached only fleeting compliance. We remand 

so the district court can make up-to-date findings and determine whether Defendants 

are currently violating class members’ rights under the Fourteenth Amendment and 

the Rehabilitation Act. On remand, the district court should conduct the necessary 

proceedings to develop a record that would allow it to make this determination. If the 

court then concludes Defendants are not violating class members’ rights under 

federal law, the court should assess the durability of that compliance. In the event 

that Defendants have implemented a durable remedy, the court should next address 

whether vacatur of all pertinent orders and termination of this case is appropriate. 

III. CONCLUSION 

We VACATE the district court’s June 2016 Order and REMAND so the court can 

make appropriate findings and conclusions and then reassess the equities under Rule 

60(b) with the benefit of those findings and conclusions.