IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-30835

HAYES WILLIAMS, ET AL

Plaintiffs-Appellees;

versus

EDWIN W. EDWARDS, GOVERNOR,

STATE OF LOUISIANA AND RICHARD

L. STADLER, SECRETARY, LOUISIANA

DEPARTMENT OF PUBLIC SAFETY AND

CORRECTIONS,

Defendants-Appellants.

Appeal from the United States District Court

For the Middle District Of Louisiana

June 19, 1996

Before POLITZ, Chief Judge, WIENER, and BARKSDALE, Circuit Judges:

WIENER, Circuit Judge:

This appeal is the latest chapte r in a saga involving

Defendants-Appellants, the Governor of Louisiana and the Secretary1 Williams v. Edwards , 547 F.2d 1206 (5th Cir. 1977).

2 for the Louisiana Department of Public Safety and Corrections

(Department), and Plaintiffs-Appellees, four Louisiana prison

inmates. This particular chapter begins with the Department’s

contending that a consent decree governing Louisiana prisons, which

was entered by the district court in 1983, terminated automatically

in 1989. As a result, the Department concludes, the district court

in 1995 lacked jurisdiction to modify that consent decree. For the

reasons assigned, we close this chapter by affirming the district

court’s 1995 modification order in all respects.

I

FACTS AND PROCEDURAL HISTORY

In the beginning (1971), four Louisiana inmates brought this

suit against the Department. The inmates sued under § 1983,

alleging, inter alia

, that the inmate housing conditions at Angola

violated the Eighth and Fourteenth Amendments. After a trial on

the merits in June 1975

, the district court entered injunctive

relief designed to improve the co nditions at Angola and

de centralize the Louisiana prison system. In February 1977, we

affirmed, but remanded the case for a determination of appropriate

inmate population limits and security staffing requirements both

for Angola and for other stat e prisons which had been built to

decentralize Angola. 1

This case then moved into its remedial phase. Following the

remand, the Department prepared a plan outlining proposed staffing

patterns and popu lation limits throughout the state. This2 We are forced to use both “1983 Order” and “Consent Decree.”

Despite a decade of calling the order entered by the district court

in 1983 a consent decree, there seems to be s ome disagreement in

this appeal whether that order is in fact a consent decree. Thus,

for the sake of clarity and objectivity, we refer to the “1983

Order” in our recitation and throughout the opinion, but are forced

periodically (because we quote the district court) to designate it

a “Consent Decree.”

3 Neither party contested this extension, even though it was

entered 25 days after the first termination date (November 1, 1986)

set forth in the “sunset” clause. Presumably, both parties

3 document, entitled “Stipulation and Consent Decree,” was signed by

various state officials and state prison officials, but was not

signed by the inmates themselves. In 1983, this document was

approved by the district court and entered in the r ecord in the

form of an order (1983 Order or Consent Decree). 2 Paragraph 5 of

the 1983 Order reads as follows:

[T]his Stipulation and Consent Decree may be modified as provided hereafter. Additionally, the Court retains

jurisdiction to modify the terms and conditions of this

Stipulation and Consent Decree upon motion of the parties

or upon its own motion.

The 1983 Order also contained a “sunset” clause purporting to

terminate the order on one of two specified future dates:

This Stipulation and Consent Decree shall be in effect as

of November 1, 1983, and shall remain in full force and

effect for a period of three years from November 1, 1983.

If the Court finds an imminent thre at of violations of

the Eighth Amendment, then this Court shall have the

r ight to extend the duration of this Stipulation and

Consent Decree for up to an additional three years.

On November 26, 1986, the district court issued an order

extending the 1983 Order because the “current crisis in Louisiana’s

state and parish jails prevents this court from term inating the

Consent Decree at this time.” 3 In January 1988, the district courtacquiesced in or consented to this initial extension.

4 At oral argument, Williams asserted that the Department had

acquiesced in the certification of the class, and the Department

did not dispute this statement.

5 As this case began in 1971, there are at present 212 volumes

of record and over 7,500 documents involved.

4 extended the 1983 Order again, stating that “[w]hile the Court

believes the Court’s orde rs remain in effect until actually

terminated by the Court, the Court will extend the order for an

additional year to avoid confusion and uncertainty.”

By 1989, conditions in Louisiana prisons had so deteriorated

that the district court declared a “state of emergency” and

appointed an expert to assist in resolving these problems. In

November 1989, neither the Department nor the inmates moved to

enforce the “sunset” clause or otherwise terminate this litigation.

To the contrary, from 1989 to 1993 the Department filed innumerable

requests for relief ( e.g., requests to modify population caps,

staffing patterns, program procedures, administrative remedy

procedures, and disciplinary rule s). Among other orders, on

January 28, 1991, the district court certified the case to proceed

as a class action. 4

In 1993, the district court informed the parties that it was

convinced that an agreement had been reached by all the parties to

extend the 1983 Order beyond 1989. Unable to locate an order

extending the 1983 Order beyond the November 1989 date, 5 the court

issued another order (‘93 Extension Order) which reads in pertinent

part:6 The Consent Decree was conditionally modified with respect

to the following institutions: Wade Correct ional Center, Allen

Correctional Center, Work Training Facility/North, Elayn Hunt

Correctional Center, Winn Correctional Center, Avoyelles

Correctional Center, Dixon Correctional Institute, Louisiana

Correctional Institute for Women, and Washington Correctional

Institute. Similar motions requesting the partial termination of

the consent decree were denied for Phelps Correctional Center and

Angola.

5 The Consent Decree and other judgments previously entered

in this case are hereby extended indefinitely

. . . This

o rder is retroactive to November 1, 1989

. . . It i s clear that the State of Louisiana and the other parties

to this litigation were fully aware of the Court’s intent

to exte nd the order because the State of Louisiana was

not in full compliance with the Court’s original order or

subsequent consent decrees.

The ‘93 Extension Order was not appealed. The Department continued

to seek periodic relief in the form of motions for modifications of

the 1983 Order.

Between 1992 and 1994, the Department filed eleven motions to

“partially terminate” the court’s supervision at institutions

covered by the 1983 Order. The district court granted nine and

denied two. 6 Essentially, each of these nine orders (Modification

Orders) modified the 1983 Order by setting a population cap for the

institution named in the particular Modification Order and by

relieving that institution of the other requirements under the 1983

Order. Each Modification Order ended with the following sentence:

[A]s long as this civil action remains pending, the

Court, the Plaintiffs or Defendants may move to modify or reimpose the previous orders of this Court if conditions

at [the institution] violate guaranties afforded inmates

und er the Eight Amendment of the United States

Constitution.

In short, each of the Modification Orders was conditional.

In February 1995 and again in March 1995, the district court7 The Department characterizes this as a status conferen ce.

The “confer ence” was held in court and on the record with the

6 issued an order requiring the Department to file a motion

identifying (1) each facility that was to be used to house state

inmates; (2) the number of beds available in the state prisons; and

(3) whether any additional beds could be made available. The

court’s expert was directed to conduct a similar inventory.

In May 1995, the district court issued the following findings

of fact: (1) State prisons were at or near capacity authorized by

the Consent Decree; (2) less that 1000 vacancies existed in all

local facilities; (3) a crisis existed with respect to housing the

Department’s inmates; (4) inmates were being released prematurely

due to lack of jail space; and (5) there was no plan to construct

additional bed space. Before concluding, the district court

specifically stated:

The Court also places all parties on notice of the

following, should such action be necessary:

* * * *

(5) it may be necessary to vacate orders which

previously removed certain state prisons from

the Court’s order becau se of the need to

expand the number of prisoners held a t those

prisons.

In June 1995, the Department submitted a supplemental response

which confirmed the district court’s preliminary findings of fact.

Additionally, the court’s ex pert issued a report which also

confirmed the district court’s preliminary findings of fact.

In July 1995, the district court and the parties met to

discuss these findings, responses, and reports. 7 At the conclusionSecretary, all wardens, and other Department p ersonnel present.

Both parties were represented by counsel.

7 the reof, the district court entered an order (‘95 Reinstatement

Order) referencing the expert report, the Department’s responses,

and other evidence concerning the inmate crisis in Lo uisiana

prisons. The ‘95 Reinstatement Order vacated each of the seven

Modification Orders:

It now appears to the Court that additional hearings are required to determine if additional inmates can be housed

in the various state prisons

. . . however, in order for

the Court to conduct hearings and determine if these

state prisons

. . . can hold additional inmates, the

warden of these prisons which were conditionally released

from the Court’s order and the prison itself need to be

included in the hearing which the Court will hold . . .

.

Thus, the district court reinstated the nine released institutions.

In re sponse, the Department then sought a Petition for

Mandamus, asking this court to vacate the ‘95 Reinstatement Order,

to which petition the plaintiffs filed an opposition. The district

court also filed with this court a formal response to the

Department’s mandamus pet ition because of what it labeled “the

serious misrepresentations and misleading statements set forth in

the [Department’s] petition and the glaring omissions of relevant

portions of the record . . . .” On July 24, 1995, we denied that

petition and the motion for rehearing en banc which followed. The

Department timely appealed the ‘95 Reinstatement Order.

II

DISCUSSION

A. W HAT A RE W E D EALING W ITH ?8 The inmates have this exactly backwards. What they should

be arguing is that the 1983 Order is valid in general, but for some

legal or fact ual reason the “sunset” clause in particular is

invalid. Instead, they advance a sweeping contractual argument

that because the 1983 Order was not sig ned by the inmates, the

“sunset” clause may not be enforced against them. This argument

would fly only if the absence of signatures somehow rendered the

1983 Order invalid in general, and thus, by extension, the “sunset”

clause in par ticular would also be invalid. This cannot be the

result the inmates seek.

9 Local No. 93, Int'l A ss'n of Firefighters v. City of

Cleveland , 478 U.S. 501, 522 (1986) (internal quotation omitted).

10 Ho v. Martin Marietta Corp. , 845 F.2d 545, 547 (5th

Cir.1988); s ee also 1B James WM. Moore et al., Moore's Federal

Practice ¶ 0.409[5], at III-151 (2d ed. 1993) ("The judgment is

not, like the settlement agreement out of which it arose, a mere

contract inter partes. The court is not properly a recorder of

contracts; it is an organ of government constituted to make

judicial decisions, and when it has rendered a consent judgment it

has made an adjudication." (emphasis added)).

8 Initially, we must establish the character of the 1983 Order

which, at least until now, has always been referred to and treated

as a consent decree. Although we are not sure why, we understand

that, at this very late date and for the first time, the inmates

are urging that the “suns et” clause is unenforceable because it

lacks their signatures. Essentially, this is a contractual

argument to the effect that without their signatures the “sunset”

clause is unenforceable. 8 We find this newfound identity crisis

meritless. The Supreme Court has described a consent decree as

" an agreement between the parties to a case after c areful

negotiation h a s produced agreement on [its] precise terms." 9

Moreover, we have noted that "[o]nce the district court enters the

settle ment as a judicial consent decree ending the lawsuit, the

settlement takes on the nature of a judgment." 10 Thus, irrespective9

of whether the inmates signed the document, the facts remain that

at the time of negotiation the inmates were represented by counsel,

t he Department of Justice intervened to assist in protecting the

inmates’ rights, and the district court entered the 1983 Order.

By all indications, the parties intended to settle the case.

The document, signed by John T. King, Secretary of the Department

of Correction, his attorney, and P. Raymond Lamonica, Executive

Counsel for and on behalf of Governor David C. Treen, was labeled

“Stipulation and Consent Decree.” The courts and the parties (at

least until recently) treated the 1983 Order as a consent decree,

a final judgment in which the district court retained jurisdiction

to issue interim orders necessary for relief and supervision until

such time and as the terms are complied with by the Department. We

are not persuaded that the parties and the courts have

misapprehended the nature of the 1983 Order. Accordingly, we hold

that the 1983 Order has had the full force and effect of a judicial

resolution of a dispute since it was entered by the district court.

B. The “Sunset” Clause

We turn now to the issues “if” and “whe n” the 1983 decree

terminated. The Department contends that on November 1, 1989 the

“sunset” clause was activated and, as a matter of law, terminated

the court’s jurisdiction. As a result, the Department concludes,

the district court lacked jurisdi ction to enter the 1995

Reinstatement Order, breathing life into what it view ed as a

deceased decree. We conclude otherwise. The Department may not

now assert issues which have long expired.1 1 See Walker v. U.S. Dept. Of Housing & Urban Development

, 912

F.2d 819 (5th Cir. 1990); See United States v. United Shoe

Machinery Corp.

, 391 U.S. 244, 249-50 (1968) (parties in antitrust

consent decree may petition court to exercise the reserved power of

modification in order t o remain faithful to decree's goal of

increased competition); United States v. Swift & Co.

, 286 U.S. 106,

114 (power of modification may be reserved).

10 In 1993, the district court stated, on the record, that it was

convinced that all the parties had agreed to extend the consent

decree beyond any “sunset” provision, but that the court had been

unable to locate the order memori alizing this extension. To

clarify what it found to be either a clerical error or an

administrative oversight, the court entered another order, the ‘93

Extension Order. That order expressly extended the “Consent

Decree”-- retroactively from November 1, 1989 and indefinitely into

the future. Neither party objected; neither party appealed. The

m atter ends there except for the court’s inherent and continu ing

jurisdiction to enforce its decree

-- essential to the court’s

constitutional function.

C. Modification of the 1983 Order

The Department nevertheless urges that the district court had

no authority to modify the 1983 Order by entering the ‘95

Reinstatement Order. The Department errs. For the reasons

assigned, we affirm the ‘95 Reinstatement Order.

1. The District Court Reserved the Right to Modify

A consent decr ee may be judicially modified, over a party's

objection, when the court has reserved the power to modify and

articulates the long-term objecti ve to be accomplished. 1 1 The It

cannot be gainsaid that the district court expressly reserved the12 502 U.S. 367 (1992)

13 Id. at 379-81. Rule 60(b) provides, in part:

On motion and upon such terms as are just, the court may

relieve a party or a party's legal representative from a final judgement, order, or proceeding for the following

reasons

... (5) the judgment has been satisfied,

released, or discharged, or a prior judgment upon which

it was based has been reversed or otherwise vacated, or

it is no longer equitable that the judgment should have

prospective application; or (6) any other reason

justifying relief from the operation of the judgment....

Fed.R.Civ.P. 60(b).

14 Rufo , 502 U.S. at 383; see also id. at 383 n. 7, 393-95.

1 5 Ruiz v. Lynaugh

, 811 F.2d 856, 860 (5 th Cir. 1987)(per

curiam)(citing Neely v. City of Grenada

, 799 F.2d 203, 207 (5th

Cir. 1986)).

11 power to modify sua sponte both the 1983 Order in general and each

of the Modification Orders in particular.

In Rufo v. Inmates of Suffolk County Jail

, 12 the Supreme Court

explained that modification of a consent decree is governed by the

same stan dards as those governing modifications of judgments, as

set forth in Federal Rule of Civil Procedure 60(b). 1 3

Additionally, when the modification relates to the vindication of

a constitutional right, the modification must be "suitably tailored

to the changed circumstance." 1 4 The decision to modify or not to

modify a consent decree lies within the discretion of the district

court. 15

Recent developments in Louisiana prisons have once again at

least raised the specter of Eighth Amendment violations. In light

of these apparent developments, on which we, perforce, express no

opinion, the district court exercised its reserved right to revisit1 6 Id. (citing Sys tems Federation No. 91 v. Wright , 364 U.S.

642, 650 (1961); R oberts v. St. Regis Paper Co.

, 653 F.2d 166, 172

(5th Cir. 1981)). See also 11A Wright & Miller, Federal Practice

and Procedure § 2961 (1995).

1 7 Id. (citing United States v. Swift & Co.

, 286 U.S. 106, 114

(1932)).

1 8 Alberti v. Klevenhagen

, 46 F.3d 1347, 1365 (5th Cir. 1995);

see also United States v. City of Miami

, 2 F.3d 1497, 1506 (11th

Cir. 1993)("[N]otwithstanding the parties silence or inertia, the

district court is not doomed to some Sisyphean fate, bound forever

to enforce and interpret a preexisting decree wit hout ever

occasionally pausing to question whether changing circumstances

have rendered the decree unnecessary, outmoded, or even harmful to

the public interest."); I n re Pearson

, 990 F.2d 653, 658 (1st Cir.

1993)("[A] court does not abdicate its power to revoke or modify

its mandate, if satisfied that what it has be en doing has been

turned through changing circumstances into an instrument of

wrong.").

12 the ‘93 Modification Orders. Neither the reservation of this right

nor the exercise thereof under these circumstances was an abuse of

discretion.

2. The Court’s Inherent Power To Modify

In addition, it is well settled that consent decrees once

entered remain dynamic. 16 When a court is using a consent decree

to supervise a case involving continually changing conditions, the

court is deem ed to retain the power to modify that decree. 1 7

Indeed, “there is little question that the district court has wide

discretion to interpret and modif y a forward-looking consent

decree” 18 such as the one at issue here. As the Supreme Court has

noted, "'sound judicial discretion may call for the modification of

the terms of an injunctive decree if the circumstances, whether law

or fact, obtaining at the time of its issuance have changed, or new1 9 Rufo

, 502 U.S. at 380 (quoting System Fed'n No. 91, Railway

Employees' Dep't v. Wright

, 364 U.S. 642, 647-48 (1961)). The

Court also noted that "[t]he experience of the district and circuit

courts in implementing and modifying such decrees has demonstrated

that a flexible approach is often essential to achieving the goals

of reform litigation." Rufo , 502 U.S. at 380.

20 Alberti , 46 F.3d at 1365-66.

13 ones have since arisen.'" 19 In like manner, the district court has

the discretion to modify a decree when the court is made aware that

the factual ci rcumstances or the law underlying that decree has

changed-- regardless of the parties' silence or inertia

. 20

When we advert to the facts of this case, we note that, as a

technical matter, the ‘95 Reinstatement Order is the vacature of a

prior modification to the 1983 Order. Rather than a modification

of the 1983 Order--the original agreement reached by the parties

and endorsed by the court--the ‘95 Reinstatement is a return to the

terms of the 1983 Ord er. As a result, on this appeal we do not

address whether the court’s changes may have gone beyond the intent

of the parties. Rather, the legal posture presented to us is a

return by the district court to the constraints originally

established by the parties and the court, a return motivated by the

apparent re-emergence of potentially unconstitutional conditions in

Louisiana prisons. The court did not err in doing so.

This ca se was brought initially to protest and remedy

unconstitutional housing conditions in Louisiana prisons. In 1995,

the district court found that conditions in Louisiana prisons

appeared to have returned to a constitutionally precarious state.

It did so after considering evidence from the parties and from the14

court appointed expert. Concerned about a potential crisis in the

Louisiana prison system, the district court had ins tructed the

parties and the court’s expert to investigate. When the responses

of the parties and the report of the expert reflected support for

the concerns of the court, it vacated the Modification Orders so

that a more detailed examination of the status of Louisiana prisons

could be accomplished. We conclude that the district court had the

authority to enter the ‘95 Reinstatement Order; and that, in doing

so, it did not err or abuse its discretion. For this reason also,

we affirm the ‘95 Reinstatement Order.

C. The Due Process Issue

Finally, the Department complains that the ‘95 Reinstatement

Order should be reversed because the Department was denied due

process. Specifically, the Department argues that the district

court (1) did nothing to suggest that it might vacate the

Modification Orders and (2) denied the Department an opportunity to

be heard on this issue. The record does not support these

contentions. In May 1995, the district court informed the

Department that the court was concerned about the bed space

situation in Louisiana prisons, and that the court was considering

vacating the ‘93 Modifi cation orders and conducting a full

investigation. The Department was put on notice. In addition,

both the Departme nt and the court’s own expert submitted reports

and responses on the relevant bed space conditions. After

discussing this evidence with the parties the district court

entered the ‘95 Reinstatement Order. That the Department had an2 1 18 U.S.C. § 3626(a)(1). The limitations codified in the Act

do not depa rt from pre-existing law of this circuit. S ee

, e.g.

, Alberti v. Klevenhagen , 790 F.2d 1220, 1227 (5th Cir. 1986); R uiz

v. Estelle , 679 F.2d 115 (5th Cir. 1982).

15 opportunity to be heard cannot be questioned, and its due process

rights were not violated.

D. P RISON L ITIGATION R EFORM A CT OF 1995

On April 26, 1996, three days before we heard arguments in

this case, the Prison Litigation Reform Act of 1995 (Act) became

law. As a result, we requested the parties to submit additional

briefing on the applicability of the Act to the instant appeal.

After reviewing the Act and the briefs of the parties, we conclude

that the Act does not affect the outcome of this appeal.

Essentially, the Act codifies the standards gove rning a

district court’s grant of prospective relief in prison reform

litigation. In pertinent part, the Act reads as follows:

The court sha ll not grant or approve any prospective

relief unless the court finds that such relief is

nar rowly drawn, extends no further than necessary to

correct the violation of th e Federal right, and is the

least intrusive means necessary to correct the violation

of the Federal right. 21

In other words, when a district court fashions prospective relief

in prison litigation, the relief must meet the standards set forth

in the Act. In this case, however, the district court has yet to

fashion any prospective relief. Instead, we understand the 1995

Order to have brought the nine previously released institutions

back within the court’s continuing jurisdiction so that it may

examine whether prospective relief is n ecessary to avoid

constitutional violations from occurring in those institutions.16

The district court has fashioned no prospective relief and the

provisions of the Act have ye t to be triggered in this case. In

t he future, however, if the district court should undertake this

examination and if it should find a violation of a “Federal right,”

then any remedy it might fashion must conform to the standards set

forth in the Act. But for now, the Act does not affect this case.

For the foregoing reasons, the ‘95 Reinstatement Order is, in

all respects, affirmed, and the matter is returned to the district

court for further proceedings consistent herewith.