IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-30131

M. C. MOORE, as father and next friend to minors Joyce Marie Moore, Jerry 

Moore, and Thelma Louise Moore; HENRY SMITH, as father and next friend 

to minors Bennie Smith, Charles Edward Smith, Shirley Ann Smith, and 

Earline Smith, 

 Plaintiffs - Appellants

v.

TANGIPAHOA PARISH SCHOOL BOARD, a corporation, 

 Defendant - Appellee

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:65-CV-15556

Before STEWART, Chief Judge, and SOUTHWICK and ENGELHARDT, 

Circuit Judges.

PER CURIAM:*

This appeal stems from a long-running desegregation case. In 1967, the 

district court issued an injunction prohibiting racial discrimination in the form 

of segregation in public schools in Tangipahoa Parish, and has exercised 

continuing supervision over the implementation of the Tangipahoa Parish 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 1, 2019

Lyle W. Cayce

Clerk

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School Board’s (“TPSB”) desegregation obligations.1 As part of the court’s 

initial injunctive ruling, the court ordered that the TPSB “make affirmative 

attempts to desegregate its public schools and make all good faith efforts to 

eradicate the vestiges of de jure segregation.” Moore v. Tangipahoa Parish Sch. 

Bd., No. 65-15556, 2008 WL 1930501, at *1 (E.D. La. Apr. 30, 2008). The 

Tangipahoa Parish School System has not yet achieved unitary status.

In January 2010, the district court issued an order modifying the 

desegregation plan with regard to the hiring procedures for all principal, 

supervisor, and administrator positions in the Tangipahoa Parish School 

System (“Order 866”). Upon considering criteria proposed by Plaintiffs and the 

TPSB, the court implemented Order 866, which provided certain hiring 

requirements in accordance with the parties’ diversity goal. 

The court ordered the hiring of qualified black applicants until the 40-60 

ratio is achieved. Order 866 specifically states that “the school system shall

hire or appoint a qualified Black [applicant] . . . to achieve a diversity goal of 

40 percent Black and 60 percent white in each category [of administrators].”

Order 866 requires all applicants to be screened by the Tangipahoa Parish 

School System Personnel Department to ensure they meet educational and 

certification requirements. Applicants deemed qualified are evaluated by an 

interview committee. The superintendent then recommends an applicant. 

Until the diversity goal is met, the procedure requires that if any of the 

qualified applicants are black, the black applicant should be recommended for 

the position. 

A court-appointed Court Compliance Officer (“CCO”) is responsible for 

ensuring compliance with the court’s desegregation orders, including Order 

866. The CCO receives a list of the name and race of each qualified applicant. 

 

1 See generally Moore v. Tangipahoa Parish Sch. Bd., 304 F. Supp. 244 (E.D. La. 1969).

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If the superintendent chooses not to recommend a black applicant because the 

committee believes there is a more qualified applicant of a different race, then 

the superintendent must submit written reasons to the CCO and the Chief 

Desegregation Implementation Officer (“CDIO”). The CCO must notify the 

superintendent if there are any objections from black applicants or the original 

plaintiffs regarding the position or if further investigation is needed regarding 

the hire for the position. 

In 2016, Kim Notariano, a white woman, applied to be the Tangipahoa 

Parish School System’s Director of Transportation—a position that is subject 

to Order 866’s hiring procedures. Notariano was not selected for the position 

(for the second time); rather, the interviewing committee and the 

superintendent recommended a black male applicant for the Director of 

Transportation position. On December 3, 2017, Notariano emailed a grievance 

to the CCO, requesting an emergency investigation.2 Notariano alleged that 

(1) the black male applicant was unqualified and that she was a more qualified 

applicant; and (2) that she was not selected for the position because the Board 

retaliated against her due to her prior complaints and/or discriminated against 

her on the basis of gender.3 The focus of Notariano’s grievance is TPSB’s 

alleged noncompliance with Order 866. 

On December 5, 2017, the CCO issued a recommendation regarding 

Notariano’s complaint. The CCO concluded that the TPSB acted in compliance 

with the hiring order. He noted that an interview committee, which included 

the CDIO, interviewed Notariano and other qualified applicants and 

 

2 According to the CCO, this was Notariano’s third complaint.

3 Notariano makes intermittent and unrelated complaints regarding the district’s

interim hiring practices. Class Counsel raised concerns about interim hiring and vacant staff 

positions, which was investigated by the CCO and discussed in the CCO’s March 26, 2018 

interim report. In response, the district court ordered the development of a framework to 

govern the Board’s future use of interim appointments.

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unanimously recommended a qualified black applicant to the superintendent. 

The superintendent recommended the same qualified black applicant to the 

TPSB Personnel Committee. Further, citing Moore v. Tangipahoa Parish Sch. 

Bd., 625 F.2d 33 (5th Cir. 1980) (“Moore II”), the CCO concluded that Notariano 

did not have standing to file a complaint of “lack of compliance by TPSB 

regarding any individual employment action involving her.” However, the CCO 

recognized that “to the extent that [Notariano’s] complaint is interpreted to 

raise systemic issues involving compliance with the hiring procedures” set 

forth in Order 866, he and the CDIO “remain engaged in an investigation of 

these and other issues.” 

On December 29, 2017, the original plaintiffs, representatives of the 

class of black students attending public schools in Tangipahoa Parish, filed an 

objection to the CCO’s recommendation in district court, reasserting 

Notariano’s allegations that the black applicant was not qualified, criticizing 

the applicant selection process, and claiming that the CCO misinterpreted the 

Moore II case. On January 2, 2018, plaintiffs filed a Motion for Evidentiary 

Hearing and Further Relief relative to the objection, including a request for an 

injunction to require the Board to hire Notariano. 

On January 9, 2018, the district court issued an order overruling 

plaintiffs’ objection and affirming the CCO’s recommendation. Applying de 

novo review, the district court agreed with the CCO’s conclusion that 

Notariano lacked standing because her allegations were based on retaliation 

of past complaints and gender discrimination—allegations that “do not involve 

the constitutional issues addressed by the Court’s [desegregation] staff hiring 

orders.” The district court dismissed plaintiffs’ motion for an evidentiary 

hearing as moot. Plaintiffs timely appealed.

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STANDARD OF REVIEW

“In desegregation cases, the objective is ‘to eliminate from the public 

schools all vestiges of state-imposed segregation.’” Cowan v. Cleveland Sch. 

Dist., 748 F.3d 233, 238 (5th Cir. 2014) (quoting Swann v. CharlotteMecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971)). A district court has the 

equitable power to fashion desegregation remedies consistent with the nature 

of the constitutional violation. See Samnorwood Ind. Sch. Dist. v. Tex. Educ. 

Agency, 533 F.3d 258, 267 (5th Cir. 2008). “We review the district court’s 

implementation of desegregation remedies for abuse of discretion.” Cowan, 748 

F.3d at 238 (citing Valley v. Rapides Parish Sch. Bd., 702 F.2d 1221, 1225 (5th 

Cir. 1983)). While conclusions of law are reviewed de novo, findings of fact are 

reviewed for clear error. Id. “[G]iven the unique factual circumstances present 

in school desegregation cases, the district court’s factual findings are entitled 

to great deference[,]. . . particularly [] when, as here, the district judge has 

supervised the case for many years.” Anderson v. Sch. Bd. of Madison Cnty., 

517 F.3d 292, 296 (5th Cir. 2008) (internal quotation marks and citation 

omitted). 

We review questions of standing de novo. Joffroin v. Tufaro, 606 F.3d 

235, 238 (5th Cir. 2010). Because standing is a threshold jurisdictional 

requirement, the party seeking to invoke federal jurisdiction has the burden of 

establishing standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 559–61 (1992). 

The question of standing “is whether the litigant is entitled to have the court 

decide the merits of the dispute,” which “involves both constitutional 

limitations on federal-court jurisdiction and prudential limitations on its 

exercise.” Warth v. Seldin, 422 U.S. 490, 498 (1975). The “irreducible 

constitutional minimum” of standing consists of three elements: (1) “the 

plaintiff must have suffered an injury in fact,” (2) that is “fairly traceable to 

the challenged action of the defendant,” and (3) that is likely to be redressed 

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by a favorable judicial decision. Lujan, 504 U.S. at 560–61. In addition to the 

constitutional requisites, prudential requirements may restrict standing. The 

alleged injury must be within the “zone of interests” protected by the 

constitutional guarantee invoked. Barlow v. Collins, 397 U.S. 159, 164 (1970). 

DISCUSSION

The district court properly applied de novo review to the CCO’s 

conclusion of law that Notariano lacked standing to bring a complaint under 

Order 866. Fed. R. Civ. P. 53(f)(4). Similarly relying on Moore II, 625 F.2d 33, 

the district court affirmed the CCO’s conclusion that Notariano lacked 

standing based on its reasoning that Notariano’s “complaint alleges that the 

school board is retaliating against her for past complaints and discriminating 

on the basis of gender.” The district court held that “[s]uch allegations do not 

create standing [in this desegregation case] because they do not involve the 

constitutional interests addressed by the Court’s staff hiring orders.” 

In Moore II, a prior decision in this case, we held that Elizabeth Moulds, 

a white female teacher in the Tangipahoa Parish School System, lacked 

standing to bring a Fed. R. Civ. P. 71 motion to enforce a court-ordered hiring 

procedure. 625 F.2d at 34–35. Like Moulds’ claim, the interest Notariano and 

Plaintiffs seek to vindicate is not within the zone of interests protected by 

desegregation Order 866—explicitly implemented to remedy segregation and 

to achieve the parties’ racial diversity goal. Because Notariano is a non-party 

who did not assert claims of racial discrimination as protected by Order 866, 

she lacks standing to enforce compliance with the district court’s remedial 

order. Moore II, 625 F.2d at 35; see also Reynolds v. Butts, 312 F.3d 1247, 1250 

(11th Cir. 2002).

Appellants’ allegations that Notariano was denied employment 

opportunities in retaliation for her membership with the NAACP and her 

public opposition of racial discrimination are unsubstantiated and do not 

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appear in Notariano’s original grievance.4 The focus of Notariano’s grievance 

is allegations of discrimination based on her gender and alleged retaliation for 

previously filing complaints when she was not promoted. As this court 

recognized in Moore II, 625 F.2d at 35 n.1, and as explicitly stated in Order 

866, the procedure set forth in Order 866 “in no way diminishes” or affects an 

individual applicant’s right to seek redress in separate litigation for any 

violations of her civil rights which may have occurred when she was denied 

promotion—a remedy Notariano is currently pursuing in district court in Civil 

Action No. 16-17832. See Notariano v. Tangipahoa Parish Sch. Bd., 266 F. 

Supp. 3d 919 (E.D. La. 2017). 

Procedurally distinguishable from Moore II, however, the original 

plaintiffs in the suit—rather than Notariano—filed the objection to the CCO’s 

recommendation in district court as well as the instant appeal. However, the 

underlying relief plaintiffs seek to address is based on Notariano’s claims, and 

is intended to benefit Notariano, a non-party. This does not cure the 

jurisdictional deficiency that Notariano’s interests are not within the zone of 

interests of the challenged order. 

Moreover, assuming arguendo that Notariano’s grievance was properly 

brought in this suit, there is no evidentiary support for Notariano’s claim that 

the TPSB’s selection of the Director of Transportation was not in compliance 

with Order 866. Further, neither Notariano or Plaintiffs have specifically 

articulated the qualifications they assert that the black applicant lacked. At 

best, Notariano’s grievance alleges that the black applicant had an engineering 

degree when the position required a business degree. However, in the same

 

4 See e.g., Finley v. Johnson, 243 F.3d 215, 219 n. 3 (5th Cir. 2001) (“We have held that 

issues raised for the first time in objections to the report of a magistrate judge are not 

properly before the district judge.”) (citing United States v. Armstrong, 951 F.2d 626, 630 (5th 

Cir. 1992)).

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email, she bewilderingly refers to the applicant as a “business major.” Again, 

without providing specific allegations, Notariano repeatedly refers to the black 

applicant as “unqualified” and states that the applicant does not possess the 

qualifications in the job description. 

To the contrary, the CCO found that the procedure required by Order 

866 was followed. The CCO concluded, “from the materials presented, it 

appears that TPSB has, thus far, acted in compliance with the applicable 

Order(s) central to Staff Hiring, to wit, the interview committee recommended 

to the Superintendent a qualified black applicant for the position of Director of 

Transportation; Superintendent Kolwe, in turn, recommended that applicant 

to TPSB.” Plaintiffs’ assertion that the TPSB Personnel Committee tabled 

consideration of the black applicant, questioning his qualifications, further 

evidences TPSB’s good faith compliance with the court’s Order 866. 

Order 866 supports the TPSB’s position, so long as the evidence shows 

racial diversity goals are not met. Plaintiffs do not allege that the 40-60 

diversity goal had been met at the time Notariano applied to be the Director of 

Transportation.

We also reject Plaintiffs’ challenge to the district court’s denial of an 

evidentiary hearing. Federal Rule of Civil Procedure 53 governs the district 

court’s review of the CCO’s recommendation. See Moore v. Tangipahoa Parish 

Sch. Bd., 843 F.3d 198, 202 (5th Cir. 2016). A court is not required to hold an 

evidentiary hearing prior to accepting the CCO’s recommendation, rather the 

court is only required to give the parties “an opportunity to be heard.” See Fed. 

R. Civ. P. 53(f)(1). Prior to making its ruling, the district court considered the 

Plaintiffs’ objection to the CCO’s recommendation as well as Plaintiffs’ motion 

for evidentiary hearing and further relief. Thus, it was not an abuse of 

discretion for the district court to deny an evidentiary hearing. 

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AFFIRMED.5

 

5 Appellee filed a motion to strike portions of Appellants’ reply brief. We deny that 

request as unnecessary in light of this opinion affirming the district court. 

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