                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   chapter   in   a   saga   involving

Defendants-Appellants, the Governor of Louisiana and the Secretary
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   conditions       at    Angola   and

decentralize 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 state 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   population    limits     throughout   the    state.        This

     1
         Williams v.     Edwards, 547 F.2d 1206 (5th Cir. 1977).

                                       2
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 record 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 threat of violations of
     the Eighth Amendment, then this Court shall have the
     right 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 terminating the

Consent Decree at this time.”3   In January 1988, the district court

    2
      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 some 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
extended the 1983 Order again, stating that “[w]hile the Court

believes   the   Court’s   orders   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 rules).               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:



acquiesced 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
     The Consent Decree and other judgments previously entered
     in this case are hereby extended indefinitely . . . This
     order is retroactive to November 1, 1989 . . . It is
     clear that the State of Louisiana and the other parties
     to this litigation were fully aware of the Court’s intent
     to extend 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
     under 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 court

     6
       The Consent Decree was conditionally modified with respect
to the following institutions: Wade Correctional 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
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 because of the need to
              expand the number of prisoners held at 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     expert    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 conclusion

     7
       The Department characterizes this as a status conference.
The “conference” was held in court and on the record with the

                                       6
thereof, 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 Louisiana

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    response,   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 petition 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.   WHAT ARE WE DEALING WITH?



Secretary, all wardens, and other Department personnel present.
Both parties were represented by counsel.

                                      7
      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 “sunset” 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   careful

negotiation         has   produced   agreement     on   [its]    precise     terms."9

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

settlement as a judicial consent decree ending the lawsuit, the

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


        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 factual reason the “sunset” clause in particular is
invalid. Instead, they advance a sweeping contractual argument
that because the 1983 Order was not signed 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 particular would also be invalid. This cannot be the
result the inmates seek.
            9
         Local No. 93, Int'l Ass'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); see 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
of whether the inmates signed the document, the facts remain that

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

the 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 “when” 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    jurisdiction       to    enter   the   1995

Reinstatement Order, breathing life into what it viewed as a

deceased decree.    We conclude otherwise.          The Department may not

now assert issues which have long expired.


                                      9
      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 memorializing 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

matter ends there except for the court’s inherent and continuing

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 decree may be judicially modified, over a party's

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

articulates the long-term objective to be accomplished.11                     The It

cannot be gainsaid that the district court expressly reserved the

     11
      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 to 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
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 standards as those governing modifications of judgments, as

set   forth     in   Federal     Rule    of   Civil   Procedure   60(b).13

Additionally, when the modification relates to the vindication of

a constitutional right, the modification must be "suitably tailored

to the changed circumstance."14          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 revisit

      12
           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.
       15
         Ruiz v. Lynaugh, 811 F.2d 856, 860 (5th Cir. 1987)(per
curiam)(citing Neely v. City of Grenada, 799 F.2d 203, 207 (5th
Cir. 1986)).

                                        11
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 deemed to retain the power to modify that decree.17

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

discretion    to   interpret   and   modify   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 new




     16
        Id. (citing Systems Federation No. 91 v. Wright, 364 U.S.
642, 650 (1961); Roberts v. St. Regis Paper Co., 653 F.2d 166, 172
(5th Cir. 1981)). See also 11A Wright & Miller, Federal Practice
and Procedure § 2961 (1995).
    17
       Id. (citing United States v. Swift & Co., 286 U.S. 106, 114
(1932)).
    18
       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 without ever
occasionally pausing to question whether changing circumstances
have rendered the decree unnecessary, outmoded, or even harmful to
the public interest."); In 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 been doing has been
turned through changing circumstances into an instrument of
wrong.").

                                     12
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 circumstances 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 Order.          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      case   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 the


    19
       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
court appointed expert.          Concerned about a potential crisis in the

Louisiana prison system, the district court had instructed 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   Modification      orders    and      conducting    a     full

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

both the Department 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 an


                                         14
opportunity to be heard cannot be questioned, and its due process

rights were not violated.

D.      PRISON LITIGATION REFORM ACT   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   governing   a

district court’s grant of prospective relief in prison reform

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

        The court shall not grant or approve any prospective
        relief unless the court finds that such relief is
        narrowly drawn, extends no further than necessary to
        correct the violation of the 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    necessary    to   avoid

constitutional violations from occurring in those institutions.

       21
      18 U.S.C. § 3626(a)(1). The limitations codified in the Act
do not depart from pre-existing law of this circuit. See, e.g.,
Alberti v. Klevenhagen, 790 F.2d 1220, 1227 (5th Cir. 1986); Ruiz
v. Estelle, 679 F.2d 115 (5th Cir. 1982).

                                            15
The district court has fashioned no prospective relief and the

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

the 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.




                                 16
