IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-50131

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, DISTRICT 19,

Plaintiff–Appellee

v.

CITY OF BOERNE; PATRICK R. HEATH, Mayor; R.L. BIEN, all in their

official capacities as members of the City Council for the City of Boerne,

Kendall County, Texas; DONALD L. GOURLEY, all in their official capacities

as members of the City Council for the City of Boerne, Kendall County, Texas;

ANN REISSIG, all in their official capacities as members of the City of

Boerne, Kendall County, Texas; BEN STAFFORD, all in their official

capacities as members of the City of Council for the City of Boerne, Kendall

County, Texas; RANDY BEDWELL, all in their official capacities as members

of the City Council for the City of Boerne, Kendall County, Texas,

Defendants–Appellees

v.

MICHAEL R. MORTON,

Intervenor–Appellant

Appeal from the United States District Court 

for the Western District of Texas

Before KING, BENAVIDES, and DENNIS, Circuit Judges.

KING, Circuit Judge:

United States Court of Appeals

Fifth Circuit

F I L E D

March 14, 2012

Lyle W. Cayce

Clerk

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This appeal requires us to decide whether the district court properly

granted a joint motion by the City of Boerne, Texas, and the League of United

Latin American Citizens, District 19, to modify temporarily a consent decree.

Because we conclude that the district court erred in approving the temporary

modification without following the procedures mandated by an earlier panel, we

vacate the district court’s order and remand for further proceedings. 

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1995, the City of Boerne, Texas, (the “City”) adopted a Home Rule

Charter (the “City Charter”), which provides, inter alia, for a City Council of five

members to be elected on an at-large, numbered-post basis. Under the City

Charter, elections are to be held once per year for two-year terms, with three

council members to be elected in one year and two council members plus the

mayor to be elected the next year. See City Charter §§ 3.02, 4.05(B).

Soon after the City Charter was adopted, the League of United Latin

American Citizens, District 19 (“LULAC”), filed suit against the City alleging

that the voting method adopted by the City Charter diluted minority voting

strength, in violation of Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. The

City and LULAC settled in December 1996, and the district court entered a

consent decree in accordance with the parties’ settlement(the “Consent Decree”).

Among other things, the Consent Decree provided that City Council members

would be elected on an at-large basis using cumulative voting, instead of a

numbered-post system, and that the City would seek preclearance of that system

from the Department of Justice (“DOJ”) under Section 5 of the Voting Rights

Act, 42 U.S.C. § 1973c. Subsequently, preclearance was obtained. The City

Charter, however, was not amended, and therefore continued to provide for atlarge, numbered-post voting. 

For several years, the City held elections in accordance with the Consent

Decree. One Hispanic member was elected to the City Council in 1997. She was

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reelected unopposed in 1999 and 2001. In 2003, the Hispanic Council member

faced an opposing candidate for the first time and was defeated. No other

Hispanic candidate has run for City Council since that time.

On December 2, 2009, the City Council held a special meeting to discuss

moving from at-large elections to single-member district elections. Michael R.

Morton (“Morton”), Intervenor–Appellant, opposed the change.The City Council

voted to file a joint motion with LULAC, asking the district court to enter a

modified Consent Decree providing for single-member district voting. The

Council also passed an ordinance establishing five single-member districts and

delineating their boundaries. Because the issue was not submitted to the voters,

as is required to amend the City Charter, the City Charter continued to provide

for at-large, numbered-post voting.

LULAC and the City subsequently sought to modify the Consent Decree

to provide for single-member district voting, stating that the “cumulative voting

system has failed to produce the results desired by either LULAC or the City,”

and the modification was sought “in hopes of producing the desired remedy with

respect to minority candidate and voter participation and voting strength.” The

City and LULAC did not provide any supporting evidence. On December 11,

2009, the district court approved the agreement (the “Modified Consent Decree”).

The order entering the Modified Consent Decree did not provide reasons for the

decision or include findings of fact or conclusions of law. Instead, the court

directed LULAC and the City to present a joint motion to dismiss the suit when

implementation of the single-member district system was complete.

On January 6, 2010, Morton filed a motion to intervene in the lawsuit,

contending that the Modified Consent Decree deprived him of his right under the

City Charter to vote for all of the City Council members through an at-large

election. The district court denied the motion, concluding that Morton lacked

standing. On that same day, the City submitted its single-member district plan

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to the DOJ for preclearance, which the DOJ subsequently granted. On the City

and LULAC’s joint motion, the district court dismissed the suit on April 19,

2010. Morton timely appealed the denial of his motion to intervene and the

dismissal of the suit. Meanwhile, the 2010 and 2011 City Council elections

proceeded under the single-member district plan established in the Modified

Consent Decree. 

On appeal, a panel of this court reversed the district court’s denial of

Morton’s motion to intervene, vacated the court’s order approving the Modified

Consent Decree, and remanded for further proceedings. League of United Latin

Am. Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 440 (5th Cir. 2011)

(“LULAC I”). The panel held that Morton had standing and the right to

intervene. Id. at 428-35. The panel also concluded that the district court had the 1

power to modify the Consent Decree, but it abused its discretion in doing so,

because the record “provided an insufficient basis for the district court to

determine that modification was warranted” pursuant to the two-factor test for

modification of consent decrees established in Rufo v. Inmates of Suffolk County

Jail, 502 U.S. 367 (1992). Id. at 437-38. Although the decision was rendered on

September 28, 2011, the mandate did not issue until December 29, 2011.

When the case returned to the district court in January 2012, the City and

LULAC filed a motion seeking modification of the Consent Decree to allow for

single-member district voting in the upcoming May 12, 2012 City Council

election. The City and LULAC sought only a temporary modification because

they concluded that it would not be possible to comply fully with the LULAC I

mandate before the election. On February 3, 2012, the court granted the motion

The panel recognized that Morton’s claim arose under state law. It stated, “Morton 1

does not claim to have suffered any violation of a voting right under the U.S. Constitution or

a federal statute such as the Voting Rights Act. Rather, his claim, which is sufficient to show

an injury in fact for Article III standing purposes, is that he has a voting right under the city

charter and this right has been abridged by the modified consent decree.” 659 F.3d at 428 n.4.

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for temporary modification and ordered that single-member districts be used for

the May election (the “Order”). Arguing that the Order was contrary to LULAC

I, Morton first sought a writ of mandamus, and subsequently filed a notice of

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appeal, along with an emergency motion to expedite the appeal and stay the

Order. We expedited the appeal, and now vacate the Order.

II. STANDARD OF REVIEW

Although we normally apply an abuse of discretion standard to a district

court’s modification of a consent decree, see Ruiz v. Lynaugh, 811 F.2d 856, 861

(5th Cir. 1987), “we review de novo whether the trial court faithfully and

accurately applied our instructions on remand.” Sobley v. S. Natural Gas Co.,

302 F.3d 325, 332 (5th Cir. 2002).

III. DISCUSSION

1. The District Court Failed to Comply with LULAC I

On appeal, Morton contends that the district court failed to comply with

the mandate of LULAC I, as the Order approves modification of the Consent

Decree without the required evidentiary showing. We agree.

The LULAC I panel discussed in detail the evidence and procedures

required before the district court could authorize modification of the Consent

Decree. While advocating a “flexible approach,” the panel relied upon the test for

modification of consent decrees developed by the Supreme Court in Rufo v.

Inmates of Suffolk County Jail, 502 U.S. 367, 378 (1992). The panel explained:

First, the party seeking modification must show that “a significant

change either in factual conditions or in law” that “make compliance

with the decree substantially more onerous [or] . . . unworkable

because of unforeseen obstacles[,] . . . or when enforcement of the

decree without modification would be detrimental to the public

interest.” Second, the court must then “consider whether the

Mandamus relief was denied by a panel of this court, which held that the temporary

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modification was a type of temporary injunction, appealable pursuant to 28 U.S.C.

§ 1292(a)(1). LULAC v. City of Boerne, No. 12-50111, slip op. at 2-3.

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proposed modification is suitably tailored to the changed

circumstance.”

LULAC I, 659 F.3d at 437 (quoting Rufo, 502 U.S. at 383-84).

The LULAC I panel concluded that the district court erred in granting the

modification request without first requiring the parties to satisfy the Rufo test.

Id. at 438-39. The panel explained that the “paucity of the record . . . provided

an insufficient basis for the district court to determine that modification was

warranted.” Id. at 438. Recognizing that the Consent Decree was intended to

alleviate vote dilution, the panel concluded that “LULAC and the city have not

shown that the original consent decree had failed to achieve its intended purpose

or that there has been any other significant change in circumstance.” Id. at 439.

The panel found that the evidence presented to the district court was insufficient

to demonstrate satisfaction of the first step of Rufo, because the parties failed to

“include additional facts in their joint motion to modify the consent decree, to file

a summary of facts relied upon in the motion, and to file supporting affidavits

and other pertinent documents.” Id. Furthermore, the district court could have 3

“request[ed] further submissions or . . . schedule[d] a conference or hearing on

the matters,” but it did not do so. Id. The panel therefore vacated the district

court’s order approving modification of the Consent Decree, and reversed its

dismissal of the action. The panel instructed that, on remand, “the district court

should permit supplemental filings and conduct proceedings, as necessary, to

develop a sufficient record in order to decide whether, consistent with this

opinion, modification of the consent decree is appropriate.” Id. at 439-40.

It is well established that “an inferior court has no power or authority to

deviate from the mandate issued by an appellate court.” Briggs v. Penn. R.R. Co.,

334 U.S. 304, 306 (1948). The mandate rule requires that a “district court follow

LULAC I did not reach the second step of the Rufo analysis. 659 F.3d at 439. 3

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both the letter and spirit of the mandate by taking into account the appeals

court’s opinion and circumstances it embraces.” UnitedStates v. Carales-Villalta,

617 F.3d 342, 344 (5th Cir. 2010) (citation and internal quotation marks

omitted). The district court’s proceedings upon remand, however, bore little

resemblance to those mandated by LULAC I. The district court did not, for

example, permit the parties to conduct discovery, or hold an evidentiary hearing

to receive competing expert and lay testimony, or even offer Morton a

substantial opportunity to rebut the evidence that the City and LULAC

presented. The court determined instead that it could order a temporary

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modification of the Consent Decree if the City and LULAC could demonstrate a

likelihood of success under the Rufo standard. Basing its decision primarily upon

a single affidavit and an otherwise underdeveloped record, the district court

found that the parties satisfied this standard. By approving a modification of the

Consent Decree without holding a hearing and demanding a more developed

factual record, the district court failed to follow the “letter and spirit” of the

LULAC I mandate. See Carales-Villalta, 617 F.3d at 344. 

Nor did the district court have the authority to approve a temporary

modification of the Consent Decree notwithstanding LULAC I. The court

believed it could do so because of the impending May 2012 election. On appeal,

the City and LULAC contend that the district court merely exercised its

“well-recognized equitable power to grant interim relief in the context of Voting

Rights Act challenges to election changes.” Although it is true that district courts

generally have broad authority to order interim equitable relief in voting rights

Before the district court, the City and LULAC submitted one affidavit from the 4

Administrative Services Director and Deputy City Secretary Linda Zartler, who attested to

voter confusion in at-large elections. They also submitted election results from 1996 to 2011,

minutes from various City Council meetings in which the modification was discussed,

correspondence with the DOJ regarding preclearance of the single-member district system,

and various newspaper articles on the proposed modification. Morton submitted no evidence.

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cases, this authority is constrained when acting pursuant to an appellate court’s 5

mandate. Indeed, the City and LULAC have not provided any authority that

would permit the district court to approve a temporary modification of the

Consent Decree while operating under the LULAC I mandate. Nor have we

found any such cases. Whatever authority the district court may have had to

order an interim or temporary modification of the Consent Decree prior to

LULAC I certainly disappeared after the mandate was issued. See, e.g., Gen.

Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444, 453 (5th Cir. 2007) (“‘The

mandate rule requires a district court on remand to effect our mandate and to

do nothing else.’”) (citation omitted). The district court was therefore not free to

grant the City and LULAC’s temporary modification request.

Although the district court had limited time to conduct the proceedings

required by LULAC I before the May 2012 election, it was not free to depart 6

from that mandate. If the parties believed that there was insufficient time in

which to comply with LULAC I, they could have sought to modify the mandate.7

See Mahan v. Howell, 410 U.S. 315, 332 (1973) (“Application of interim remedial 5

techniques in voting rights cases has largely been left to the district courts.”); see also Branch

v. Smith, 538 U.S. 254, 265 (2003); Lopez v. Monterey Cnty., Cal., 519 U.S. 9, 18 (1996);

Reynolds v. Sims, 377 U.S. 533, 585 (1964); Campos v. City of Houston, 968 F.2d 446, 450 (5th

Cir. 1992) (holding that district court “had the power to grant some form of interim relief” for

the Houston City Council elections, pending an unresolved Section 2 Voting Rights Act case

and in the absence of a Section 5 precleared redistricting plan).

As noted above, the mandate was not issued until December 29, 2011, and the district 6

court states that it did not receive the mandate until January 9, 2012. The pre-election filing

deadline for City Council candidates was set for February 4, 2012.

Fifth Circuit Rule 41.2 provides that “[o]nce issued a mandate will not be recalled 7

except to prevent injustice.” In accordance with that rule, “[o]n a number of occasions, this

court has recalled and modified its mandates.” Hall v. White, Getgey, Meyer Co., LPA, 465 F.3d

587, 593 (5th Cir. 2006) (footnote omitted). This court “has the innate power to recall and then

relax its mandate on a proper showing. The more orderly way is . . . for the party affected to

formally petition this Court to relax or modify its mandate to permit the trial court to take the

requested action.” Dickerson v. Cont’l Oil Co., 476 F.2d 635, 636 (5th Cir. 1973) (citation

omitted); see also Hall, 465 F.3d at 593 n.21 (citing Dickerson). A panel may recall and amend

a mandate if “the circumstances warrant deviation from the rehearing procedure and the

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They failed to do so, and therefore had no alternative but to abide by the

mandate’s instructions.

Because the district court did not comply with the mandate of LULAC I

and was without authority to order a temporary modification of the Consent

Decree, we conclude that the Order was erroneous. We therefore vacate the

Order and remand this case to the district court. On remand, we direct the

district court to fully comply with the LULAC I mandate, and issue a final

decision on the requested permanent modification of the Consent Decree no later

than May 31, 2012. It goes without saying that sooner would be better. Any

subsequent appeal or interim motions will be heard by this panel. 

2. Election Schedule

Texas law provides that general elections may be held on either the second

Saturday in May or the first Tuesday after the first Monday in November. TEX.

ELEC. CODE § 41.001(a). Although City Council elections are presently set for

May 12, 2012, it will not be possible for the district court to comply with the

LULAC I mandate and our mandate before that date. Therefore, at the

suggestion of the City and LULAC, we order that the election for City Council

be held on November 6, 2012, as provided by Section 41.001(a)(3) of the Texas

Election Code. On remand, the district court should consult with City election

officials to determine any changes to pre-election deadlines that may be

necessary in advance of the November 6, 2012 election. Upon motion by the City 8

equities of the case require recall and reformation of a mandate.” In re Incident Aboard the

D.B. Ocean King on Aug. 30, 1980, 877 F.2d 322, 327 (5th Cir. 1989) (footnote and internal

quotation marks omitted); id. (recognizing an appellate court’s power to “recall and amend a

mandate to prevent injustice”).

The parties have identified the following pre-election dates that will require alteration 8

for the November 6 election: (1) deadline for candidate filing, (2) date upon which candidates

draw for ballot position, (3) deadline for candidate withdrawal from the ballot, (4) deadline for

mailing of ballots to military and overseas voters, (5) date for public logic and accuracy testing

for early voting, (6) deadline for voters to apply for a ballot to vote by mail, and (7) date for

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and after any hearing that is advisable, the district court should exercise its

authority to order any necessary changes to those deadlines.

3. Other Relief

Morton seeks attorneys’ fees as a sanction for the City and LULAC’s

actions in this case, pursuant to our inherent authority or under 28 U.S.C.

§ 1927. Morton also requests that we reassign this case to a different district

judge in the Western District of Texas upon remand. 

We deny Morton’s request for attorneys’ fees. Such fees may be warranted

where we find conduct to be in bad faith, fraudulent, unreasonable, or otherwise

deserving of sanction. See Boland Marine & Mfg. Co. v. Rihner, 41 F.3d 997,

1005 (5th Cir. 1995) (“A court should invoke its inherent power to award

attorney’s fees only when it finds that ‘fraud has been practiced upon it, or that

the very temple of justice has been defiled.’”) (quoting Chambers v. NASCO, Inc.,

501 U.S. 32, 46 (1991)); Elliott v. Tilton, 64 F.3d 213, 217 (5th Cir. 1995); see also

28 U.S.C. § 1927 (stating that attorney’s fees are warranted where “[a]ny

attorney . . . so multiplies the proceedings in any case unreasonably and

vexatiously”). While we disagree with their legal arguments, we have no reason

to conclude that the City and LULAC have not litigated this matter in good

faith. Attorneys’ fees are therefore unwarranted.

We also deny Morton’s request for reassignment. Although we have the

authority to order reassignment, see Johnson v. Sawyer, 120 F.3d 1307, 1333

(5th Cir. 1997), we have emphasized that it is an “extraordinary power that is

rarely invoked.” In re DaimlerChrysler Corp., 294 F.3d 697, 701 (5th Cir. 2002)

(citation and internal quotation marks omitted). We have explained that

reassignment may be authorized where “the original judge would reasonably be

expected upon remand to have substantial difficulty in putting out of his or her

public logic and accuracy testing for election day voting.

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mind previously-expressed views or findings determined to be erroneous or

based on evidence that must be rejected,” or where “reassignment is advisable

to preserve the appearance of justice.” Id. at 700-01 (citation omitted). We have

also ordered reassignment where “the facts might reasonably cause an objective

observer to question [the judge’s] impartiality.” Id. at 701 (alteration in original)

(citation and internal quotation marks omitted). Neither standard is satisfied

here. Morton has not provided any evidence that might lead us to question the

district court’s impartiality; he points only to erroneous legal decisions. Morton

also contends that the district court has “at times expressed hostility” towards

him, but we find no evidence of such hostility.

IV. CONCLUSION

For the foregoing reasons, we VACATE the Order of the district court

entered February 3, 2012 and REMAND this case to the district court for further

proceedings consistent with LULAC I and with this opinion. We direct the

district court to issue a final decision on the requested permanent modification

of the Consent Decree no later than May 31, 2012. We also DENY Morton’s

request for attorneys’ fees, and DENY Morton’s request to reassign this case

upon remand.

We order that the City Council election shall be held on November 6, 2012,

pursuant to Section 41.001(a)(3) of the Texas Election Code, and direct the

district court to order any necessary modifications to pre-election deadlines.

Any subsequent appeal or interim motions will be heard by this panel. 

Morton’s Motion for Stay is DENIED AS MOOT.

The mandate shall issue forthwith.

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