
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1582                          WILLIAM LANGTON AND DAVID LEBLANC,                               Plaintiffs - Appellees,                                          v.                             WILLIAM HOGAN, JR., ET AL.,                               Defendants - Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                             and Keeton,* District Judge.                                          ______________                                _____________________               Robert  J. Munnelly,  Jr., Assistant Attorney  General, with               _________________________          whom Scott Harshbarger, Attorney General  of Massachusetts, Karen               _________________                                      _____          Laufer,  Assistant Attorney General, and Philip  W. Silva IV were          ______                                   ___________________          on brief for appellants.               Dennis J. Bannon for appellees.               ________________                                 ____________________                                  November 21, 1995                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    KEETON,  District   Judge.    This  is   an  appeal  by                    KEETON,  District   Judge.                             ________________          Defendants-Appellants from a 1995  Judgment of the district court          modifying,  on motion  of Defendants-Appellants,  but not  to the          full  extent they  requested, a  Permanent Injunction  ordered in          1984.  We  treat the 1995 Judgment  as in essence  a ruling on  a          motion for modification of a consent decree that did no more than          decide the issues before  the court, as the matter  was presented          by Defendants-Appellants.  Discerning no error of law, no clearly          erroneous finding of fact, and no abuse of discretion, we affirm.                     I.  Background Facts and Procedural History                     I.  Background Facts and Procedural History                    In  1979, the  Plaintiffs-Appellees,  two inmates  of a          Massachusetts  correctional institution,  filed  a  civil  action          under  42  U.S.C.     1983, claiming,  among  other  things, that          predecessors of  Defendants-Appellants in positions  of authority          in the institution and the state correctional system had violated          and were continuing to violate  constitutionally protected rights          of  the inmates  by intercepting  and monitoring  their telephone          calls,  including calls to their counsel as well as other private          calls,  and that  such interception  and monitoring  violated the          federal and state wiretapping statutes, 18 U.S.C.    2510 et seq.                                                                    __ ____          and Mass. Gen. L. ch. 272,    99 et seq.                                            __ ____                    For convenience, we will refer  to Plaintiffs-Appellees          as plaintiffs or by name, and Defendants-Appellants as defendants          or the Department of Correction.                    In  1984,  after  negotiations  of  the  parties,   and                                         -2-          consultations of counsel and the judge to whom the case had  been          randomly  assigned,   the  parties  entered  into   a  Settlement          Stipulation, dated  October 17,  1984, providing for  a Permanent          Injunction  in the form of an attached exhibit, and a Judgment of          Dismissal  in the form of another attached exhibit.  The district          court (Zobel, D.  J.) approved  the settlement and  made the  two          orders.  One  was the  Judgment of Dismissal,  reciting that,  in          view of the Settlement Stipulation,                     all of the claims  by both plaintiffs in this                    action  are  dismissed  with   prejudice  and                    without  costs  or  attorney's  fees  to  any                    party.          App. 000029.            The  other was a Permanent  Injunction in view  of the Settlement          Stipulation:                        1.      All  officers,   agents,  servants,                    employees and attorneys  of the Department of                    Correction  are  enjoined permanently,  under                    both 18 U.S.C.    2510 et  seq. and M.G.L. c.                                           ________                    272,      99   et  seq.,  from  intercepting,                                   ________                    endeavoring  to  intercept  or procuring  any                    other   person   to   intercept,   any   wire                    communication  by or  to  William Langton  or                    David LeBlanc, inmates within the  custody of                    the  Department,  without  a  specific  court                    order or legislative  authorization to do so,                    except  as  specifically  permitted by  these                    statutes, taken together,  as they have  been                    amended or  may be  amended and as  they have                    been construed in reported decisions that are                    binding in this Court  or in the state courts                    of Massachusetts.                      2.    This  Permanent  Injunction,  entered                    pursuant to the Settlement  Stipulation dated                    October 15, 1984, shall operate prospectively                    only.  It shall  not of its own  force affect                    the rights of inmates of the Department other                    than William Langton and David LeBlanc.                                         -3-          App. 000030-31.                    The  Department of Correction  apparently complied with          the Permanent  Injunction without  incident for almost  a decade,          until April  1994, when it promulgated  new regulations governing          telephone access and use by inmates, 103 C.M.R.    482.00 et seq.                                                                    __ ____          (hereinafter "the  Regulations").  These  Regulations, ostensibly          applicable  to all  inmates  in all  Department institutions  and          facilities, instituted  a system of routine  monitoring of inmate          telephone  calls by  the  Department of  Correction and  required          inmates  to  sign  a  form  consenting  to  having  their   calls          monitored,  or  be  deprived  of their  telephone  access.    The          Regulations also limited the number of telephone calls that could          be made by  inmates to  ten monitored calls  to non-lawyers,  and          five  non-monitored  calls  to  lawyers.   All  telephone  calls,          whether lawyer or non-lawyer, were required to be pre-approved.                    The Department  of Correction  sought to apply  the new          Regulations  to  plaintiffs.    Plaintiffs refused  to  sign  the          consent  forms and were denied  telephone access.   In June 1994,          plaintiffs  filed  a  Petition  for Contempt  alleging  that  the          Department of Correction  had prohibited plaintiffs  from placing          telephone calls unless they agreed to permit the recording of all          their telephone calls.   Defendants moved to dismiss the petition          for contempt, and plaintiffs filed an opposition to the motion to          dismiss.                      While   the  motion  to   dismiss  was  still  pending,          defendants filed,  in  January  1995,  a  Motion  to  Modify  the                                         -4-          Permanent Injunction                    to allow for the restrictions, monitoring and                    recording  of  plaintiffs'  telephone use  in                    accordance    with    the    Department    of                    Correction's  new telephone  regulations, 103                    CMR 482.00 et seq.                               _______          App. 000077.                    On February  21, 1995, Judge Zobel  signed a Memorandum          of Decision, the last paragraph of which is as follows:                      Defendants' motion to modify  the permanent                    injunction is allowed to the extent that  the                    Department    of    Correction   may    limit                    plaintiffs'  access  in  accordance with  the                    Regulations, 403 CMR    482.00 et seq.  It is                                                   _______                    denied  to the  extent that  defendants shall                    not  monitor plaintiffs'  calls and    482.10                    shall not apply to plaintiffs.  Counsel shall                    submit  a  form  of judgment  reflecting  the                    modification allowed.          App. 000103.                    Counsel having failed to agree upon a form of  judgment          reflecting the modification allowed, Judge Zobel, on May 3, 1995,          signed a Judgment as follows:                      After  hearing on the defendants' Motion to                    Modify  the  Permanent  injunction,   and  in                    accordance  with  the  Court's Memorandum  of                    Decision  dated  February  21,  1995,  it  is                    hereby ordered and adjudged:                      1.    The defendants  shall not  monitor or                    record the telephone calls of the plaintiffs,                    William Langton and David LeBlanc.                      2.   The  provisions of  403 CMR    482.10,                    shall not apply to the plaintiffs (except for                    call  detailing, which  shall  apply  to  the                    plaintiffs)  pending  further  order  of  the                    court upon application of the defendants.                      3.   Acceptance by each plaintiff  of a PIN                    and  use of  inmate  telephones shall  not be                    deemed  as  consent  to  the  conditions  and                                         -5-                    restrictions  placed  upon  inmate  telephone                    calls,    including   call    monitoring   or                    recording.                      4.  The  defendants shall notify by  letter                    each  non-attorney whose name  appears on the                    plaintiffs' lists  of preauthorized telephone                    numbers that the message  regarding recording                    and monitoring should be disregarded and that                    calls made by the  plaintiffs are not subject                    to monitoring and recording.                      5.  The plaintiffs  may request changes  in                    their preauthorized telephone numbers  at any                    time.        Such  changes   shall  be   made                    expeditiously by the defendants provided they                    are  in compliance  with the  restrictions on                    the total  number  of personal  and  attorney                    numbers  plaintiffs  are   allowed  to   call                    pursuant to 403 CMR  482 et seq.  If,  at any                                             _______                    time,   defendants  believe   plaintiffs  are                    abusing this arrangement,  they may  petition                    the court for further relief.                      6.     Defendants'  Motion  to  Modify  the                    Permanent Injunction is allowed to the extent                    that  the Department of  Correction may limit                    plaintiffs'  access  in  accordance with  the                    Regulations,  403 CMR    482.00  et seq.,  as                                                     _______                    amended, so  long as such  amendments do  not                    change the substance of this order.                      7.      Modification   of   the   Permanent                    Injunction   entered   by   this   court   on                    October 15,   1984   is   required  for   the                    Department of Correction to apply  new inmate                    telephone    access   regulations    to   the                    plaintiffs.          App. 000104-106.             II.  The 1984 Permanent Injunction and Judgment of Dismissal             II.  The 1984 Permanent Injunction and Judgment of Dismissal                    The 1984  Permanent Injunction  was not in  the classic          mold of  consent decrees, as two  orders were made rather  than a          single integrated consent decree.  The terms of these two orders,          however, were as  surely part of the  terms of the  settlement as                                         -6-          were  the   recitations  in  the  document   entitled  Settlement          Stipulation.  In this case,  we take account of the terms  of all          three  documents in construing each, and we conclude that they do          not support the interpretation urged upon the district court, and          here, as the primary contention of defendants.                    This is an appeal from the district court's ruling on a          motion  for  modification,  yet  defendants  have  not  presented          arguments  as to  why the  1995 Judgment  should be  modified, in          light of changes  in law or fact, to allow  the Regulations to be          applied to  the plaintiffs.  Defendants instead  contend that the          Regulations  should  be applied  to  the  plaintiffs because  the          Regulations do  not violate, and  never have  violated, the  1984          Permanent Injunction.     Defendants argue  that the federal  and          state wiretapping statutes, as  they interpret those statutes, do          not  prohibit  the  Regulations,   and  therefore  the  Permanent          Injunction does not prohibit the Regulations.                    Rather  than  argue  for  modification,  defendants, in          essence, argue  that the  Permanent Injunction  did no  more than          prohibit  them from  violating  law,  that  there was  never  any          adjudication   that  they   had  violated   any  constitutionally          protected  right of  plaintiffs, that  they yielded  nothing with          regard to any  reasonably disputable issue of law or mixed-legal-          factual  issue but merely  stipulated that they  would not commit          certain types of violations  of law in the future,  and therefore          that  when the district court in 1995 purportedly granted in part          but  not fully  their motion  for  modification of  the Permanent                                         -7-          Injunction, the  court was in effect enlarging  the injunction in          plaintiffs' favor  rather than granting limited  modifications in          defendants'  favor in  order  appropriately to  tailor relief  to          defendants'  showing, on the record  before the district court at          the time it made its  1995 ruling, of changes in law or fact that          warranted modification of the Permanent Injunction.                    We  conclude that the position of Defendants-Appellants          is flawed in several ways, as explained below.                    If the Permanent Injunction did  not in any way enlarge          the rights of plaintiffs beyond what they were under  defendants'          proposed  interpretation  of the  law,  then  defendants gave  up          nothing  in   settling  the  dispute.     This  is   an  unlikely          interpretation  and we do not accept it.   If it were correct, no          purpose  would be served by  the declaration in  paragraph 2 that          the Permanent Injunction "shall  not of its own force  affect the          rights of inmates  of the Department  other than William  Langton          and David LeBlanc."   Defendants' contention, in effect,  asks us          to hold  that both paragraph 1  and paragraph 2  were illusory --          stating nothing  beyond what was already forbidden  by law before          the Permanent Injunction was  entered.  This is not  a reasonable          interpretation.                       The   usually  understood   meaning  of   a  Settlement          Stipulation is that each party is agreeing to give up something -          - to yield  on one  or more reasonably  plausible contentions  of          law, or fact, or mixed-law-fact issues.  "[T]he agreement reached          normally embodies  a compromise;  in exchange for  the saving  of                                         -8-          cost  and elimination of risk, the parties each give up something          they  might have  won had  they proceeded  with the  litigation."          United States  v.  Armour, 402  U.S. 673,  at 681  (1971).   When          _____________      ______          making an agreement for  a consent decree, the parties  to a case          are agreeing  not to press any  of their disputes to  decision in          court.    The  parties forego  "their  right  to  litigate issues          involved  in the case and thus save themselves the time, expense,          and inevitable risk of litigation." Armour,  402 U.S. at 681.  We                                              ______          so interpret  the Settlement Stipulation  of the parties  to this          case.  The  parties' disputes thus  settled may include  disputes          about applicable  law, disputes  about facts, and  disputes about          mixed-legal-factual   issues,   including   disputes  about   the          materiality under rules  of law (as  finally determined in  court          proceedings at  trial  or on  appeal) of  particular disputes  of          fact.                    In  the   present  case,  it  was   clear,  before  the          Settlement  Stipulation, that disputes of fact had been raised by          the pleadings.  It might  reasonably be argued in support  of the          position now  advanced by  defendants, however, that  rather than          settling the merits of  these disputes the Settlement Stipulation          rendered   them  moot.    Without  so   deciding,  we  assume  in          defendants'  favor that  this is  so as  to any  strictly factual          disputes.                    As to the reasonably disputable issues of law or mixed-          legal-factual  disputes,  a  settlement  and  consent  decree  in          accordance  with   the  settlement  preclude   the  parties  from                                         -9-          reasserting  their contrasting  legal  arguments  on such  issues          without having  first shown cause  for vacating or  modifying the          consent  decree.  Whatever the law governing this case might have          been  just  before  the   parties  entered  into  the  Settlement          Stipulation,  the Permanent  Injunction  was a  lawfully  entered          order of  court.  The law  as between the parties to  the case is          what it  was agreed  to  be in  the  Permanent Injunction.    The          Supreme Court has stated:                    [T]he  scope  of  a consent  decree  must  be                    discerned within its four corners, and not by                    reference  to what might satisfy the purposes                    of  one of  the  parties to  it  ....   [T]he                    instrument   must  be  construed   as  it  is                    written,  and  not  as  it  might  have  been                    written  had  the  plaintiff [or  defendants]                    established his [or their] factual claims and                    legal theories in litigation.          Armour,  402 U.S., at  681-82.  Accord,  Firefighters Local Union          ______                          ______   ________________________          No. 1784  v. Stotts, 467 U.S.  561, 574 (1984).   The parties are          ________     ______          not free to argue their contrasting legal theories of the meaning          of the statutes  that underlie the Injunction, because  they gave          up the right to have that dispute resolved by the court.                               ____                    We  take account  of the fact  that Armour  was decided                                                        ______          long before Rufo v. Inmates of Suffolk County Jail, 502  U.S. 367                      ____    ______________________________          (1992), and that Armour's holdings must be read today, especially                           ______          as applied to an institutional consent decree like that before us          now, with sensitivity to any  modification of precedent that  the          decision in  Rufo has  effected.   As we note  in Part  IV below,                       ____          however,  this point bears  principally upon whether modification          of the Permanent  Injunction should  be made, not  upon what  the                                         -10-          Permanent Injunction  meant when  entered,  or meant  in 1994  or          1995, absent modification.                    We take account  also of unsettled questions  regarding          whether  Armour was modified by  United States v. ITT Continental                   ______                  _____________    _______________          Baking Co., 420 U.S. 223 (1975).  We conclude, however, that even          __________          if ITT  is read as  liberalizing to some degree  the standard for             ___          going  outside  the  text  of  a  consent  decree  to  assist  in          determining  its   meaning,  defendants  have  not   offered  any          persuasive reason  for going  outside the  text of  the Permanent          Injunction  in  this  case.    Even if  we  were  to  assume that          ambiguity  of the meaning of the text of the Permanent Injunction          warrants   our    consideration   of   extraneous    sources   of          clarification,  defendants'  position  is  not  aided.    Looking          outside  the text of  the Permanent  Injunction to  then existing          law,  rather than  clarifying  defendants'  position, muddles  it          further, because the  existing law  was uncertain and  yet to  be          determined (as explained in Part III below).  We see no reason to          permit defendants  to argue that genuine  disputes regarding what          the state and federal  statutes prohibited defendants from doing,          or  permitted them to do,  should be resolved  now in defendants'          favor  and   thereby  control   the  meaning  of   the  Permanent          Injunction.  Instead we hold that the Permanent Injunction (along          with  the associated  documents) settled  those underlying  legal          disputes.                    The way in which  a consent judgment or  consent decree          resolves,  between the parties, a  dispute over a  legal issue is                                         -11-          not a ruling  on the merits  of the legal  issue that either  (1)                        _____________          becomes precedent  applicable to any other  proceedings under the          law of  stare decisis or (2)  applies to others under  the law of                  _____________          claim preclusion or issue  preclusion.  See Martin v.  Wilks, 490                                                  ___ ______     _____          U.S. 755 (1989)(parties to litigation cannot enter into a consent          judgment  that will  preclude  a person  not  made a  party  from          bringing  a later  suit alleging  violation of  his or  her legal          rights).  The resolution of the legal dispute by consent judgment          is nonetheless binding  on the parties  to the case in  which the          consent judgment is  entered.  The parties to this case are bound          by  the  rules  of  law declared  in  the  Permanent  Injunction,          although no other parties are so bound.                    We state the point  more generally.  When a  dispute of          law  exists  between  parties  to a  case  and  they  agree  to a          settlement of that dispute and entry of a judgment with prejudice          based  on that  settlement, then  the terms  of that  judgment in          relation  to  that  legal  issue  are  subject  to  res  judicata          principles.   A judgment that is entered with prejudice under the          terms of a settlement, whether by stipulated dismissal, a consent          judgment,  or  a  confession  of  judgment,  is  not  subject  to          collateral attack by a party or  a person in privity, and it bars          a second  suit on  the same  claim or  cause of  action.   See 1B                                                                     ___ __          Moore's Federal Practice  .409[5] (2d ed. 1995).  Such a judgment          ________________________          has the  force of res judicata  until further order of  that or a          higher court  modifying that consent judgment.   This proposition          is supported  in a large  body of  precedent.  See,  e.g., In  re                                                         ___   ____  ______                                         -12-          Medomak v. Canning,  922 F.2d  895 (1st Cir.  1990) (generally  a          _______    _______          court-approved settlement  receives the same res  judicata effect          as a litigated judgment); accord, In Re Laing, 31 F.3d 1050 (10th                                    ______  ___________          Cir.  1994); Keith  v. Aldridge,  900 F.2d  736 (4th  Cir. 1990),                       _____     ________          cert.  denied,  498 U.S.  900 (1990);  Epic  Metal Corp.  v. H.H.          _____________                          _________________     ____          Robertson  Co., 870 F.2d 1574 (Fed. Cir. 1989), cert. denied, 493          ______________                                  ____________          U.S. 855 (1989); Kurzweg v. Marple, 841 F.2d 635 (5th Cir. 1988);                           _______    ______          Amalgamated Sugar Co.  v. NL  Industries, 825 F.2d  634 (2d  Cir.          _____________________     ______________          1987), cert. denied, 484 U.S. 992 (1987).                 ____________                                         -13-                       III.  Settling Disputable Issues of Law                       III.  Settling Disputable Issues of Law                    Defendants have  not called attention to  any "specific          court  order  or legislative  authorization" occurring  after the          entry  of the Permanent Injunction.   Defendants' position is not          salvaged by the language in the Permanent Injunction stating that          defendants  are enjoined  under the  state and federal  acts from          intercepting telephone calls,                     except  as  specifically  permitted by  these                    statutes, taken together,  as they have  been                    amended or  may be  amended and as  they have                    been construed in reported decisions that are                    binding in this Court  or in the state courts                    of Massachusetts.          The statutes  do not  "specifically permit" the  Regulations, and          the   meaning  of   the   statutory   provisions  for   permitted          interception  and  monitoring,  as  "amended" or  "construed"  in          "binding"  decisions, is  at  least reasonably  susceptible to  a          construction contrary to defendants' proposed interpretation.                      Defendants  contend that the Regulations do not violate          the  state or  federal  wiretapping statutes  for three  reasons.          Even now, reasonable arguments can  be advanced against, as  well          as for, each of defendants' contentions about the applicable law.                    First,  defendants argue that the Massachusetts Wiretap          Act, Mass.  Gen. L. ch. 272,    99 et seq., prohibits only secret                                             __ ____          "interception",  and  monitoring  under  the  Regulations  is not          secret  and  therefore  not   prohibited.    The  1984  Permanent          Injunction,  however,  prohibited  conduct that  would  amount to          "interception" under federal law, even if that conduct  would not          amount to "interception"  under state law.   The federal  wiretap                                         -14-          act, 18 U.S.C.    2510, et seq., does not make secrecy  decisive.                                  __ ____          That act, as of 1984, defined the term "intercept" as simply "the          aural   acquisition  of  the  contents  of   any  wire,  or  oral          communication through  the use of any  electronic, mechanical, or          other device."  18 U.S.C.   2510(4).  Monitoring and recording of          plaintiffs'   telephone   calls   under  the   Regulations   thus          constitutes "interception" under  the 1984 Permanent  Injunction,          despite its being performed openly and without secrecy.                    Second,  defendants  attempt  to  argue  that  the  new          Regulations do not violate  the 1984 Permanent Injunction because          the  definition of "interception"  within the federal wiretapping          act,  at 18  U.S.C.    2510(5),  expressly excludes  recording or          monitoring  performed  "by an  investigative  or law  enforcement          officer  in  the  ordinary  course of  his  duties."   Defendants          interpret  the statute  to  mean that  monitoring by  corrections          officials  under  the  Regulations   falls  within  the  excluded          category.   The defendants have not shown beyond genuine dispute,          however, that  in monitoring conversations  corrections officials          would be  acting as "investigative or  law enforcement officer[s]                               _____________         ___________          in  the ordinary  course  of [their]  duties."   Defendants  cite                  ________          several cases from other courts that  may be read as so  holding.          United States v.  Sabubu, 891  F.2d 1308, 1328  (7th Cir.  1989);          _____________     ______          United  States v. St.  Paul, 614 F.2d  115, 117 (6th  Cir. 1980);          ______________    _________          State v. Fornino, 539  A.2d 301, 308 (N.J.  Super. Ct. App.  Div.          _____    _______          1988).  We are, however,  aware of no reported decisions to  this          effect that are binding in  this court or in the state  courts of                                         -15-          Massachusetts.  In  Campiti v.  Walonis, 611 F.2d  387, 392  (1st                              _______     _______          Cir. 1979), the  First Circuit expressly reserved  decision as to          whether  monitoring  in  accordance  with an  established  prison          policy of which the prisoners were informed could qualify as part          of  the ordinary course of business of a law enforcement officer.          The  issue in this circuit was  in 1984, and still is, reasonably          debatable.                    Finally, defendants  argue the  new Regulations  do not          violate  the 1984  Permanent Injunction  because the  federal act          under 18  U.S.C.   2511(2)(c) permits monitoring  or recording by          "a person acting under color of law" where "one of the parties to          the communication has given  prior consent to such interception."          Defendants  contend  that  the  Regulations  meet  the  one-party          consent exception  of the  federal act because  inmates impliedly          consent to be monitored  when they use the telephone  after being          made  aware that  monitoring of  calls is  a condition  for being          allowed to use the  telephone.  Defendants have cited  cases from          other jurisdictions  holding that  execution of forms  by inmates          that  acknowledge their  understanding that  their calls  will be          monitored  constitutes consent  under  the federal  act, even  if          inmates  are  denied telephone  access if  they  do not  sign the          forms; and that  calls placed by  inmates despite express  notice          from  stickers  on  the  telephones  and  the  message  from  the          automated  operator  that   accompanies  every  call  constitutes          consent.   See United  States v. Horr,  963 F.2d  1124, 1126 (8th                     ___ ______________    ____          Cir.  1992); United States v. Amen, 831 F.2d 373, 378-79 (2d Cir.                       _____________    ____                                         -16-          1987); United States v.  Willoughby, 860 F.2d 15, 20-21  (2d Cir.                 _____________     __________          1988); United States v.  Paul, 614 F.2d 115, 117 (6th Cir. 1980);                 _____________     ____          United States v. Valencia, 711 F. Supp. 608, 611 (S.D.Fla. 1989);          _____________    ________          United States v. Green,  842 F. Supp. 68, 71-71  (W.D.N.Y. 1994).          _____________    _____          Defendants  also  argue  that  because  the  Regulations  require          positive  call  acceptance from  the  recipient  after hearing  a          recorded  message,   recipients  are  deemed  to  have  impliedly          consented.  Defendants, however, cite no cases to this effect.                    Once again, we are aware  of no reported decisions that          are  binding  in   this  court   or  in  the   state  courts   of          Massachusetts,  holding  that  this  type  of   prison  telephone          monitoring system  meets the  one-party consent exception  to the          federal  wiretapping  act   due  to  implied  consent.    It  may          reasonably  be argued that "implied consent" in this sense is not          a free and voluntary consent; it is instead no more than a choice          between  unattractive  options --  a  limited  choice imposed  on          plaintiffs by defendants.  The issue then becomes whether the law          allows  the defendants to impose this limitation of choice on the          defendants  and call their response  an implied consent.   At the          least, grounds exist for genuine dispute about whether defendants          are  authorized by  law  to  impose  such  a  limited  choice  on          plaintiffs    and   whether   "implied   consent"   under   these          circumstances  is "consent" as that  term is used  in the federal          act,  and  legally  effective  consent   under  the  Department's          regulations.   See Griggs-Ryan v.  Smith, 904 F.2d  112 (1st Cir.                         ___ ___________     _____          1990)  (holding  that  "implied  consent"  is  consent  in  fact,                                         -17-          inferred from  associated circumstances  indicating that  a party          knowingly agreed to surveillance).                    The issue of what  constitutes "implied consent" in the          prison context has not yet been directly addressed by this court,          and we do not decide it here.  It is sufficient to point out that          plaintiffs  in  this  case   have  not  consented,  impliedly  or          otherwise, to the monitoring scheme; plaintiffs instead brought a          contempt action under the  Permanent Injunction, an opposition to          defendants'  motion  to  dismiss  the  contempt  action,  and  an          opposition  to  defendants'   motion  for  modification  of   the          Permanent  Injunction.   We do not read Griggs-Ryan as supporting                                                  ___________          the  view  that an  inmate has  impliedly  consented to  the very          scheme  the  inmate has  challenged as  a  violation of  the 1984          Permanent Injunction.                      Defendants entered into  a Settlement Stipulation under          which each party gave up the right to have the dispute  as to the          meaning of the federal and state wiretapping statutes resolved by          a court.   The meaning of what was permitted  under the state and          federal  wiretapping  statutes   was  ambiguous  and   reasonably          debatable.  Defendants  have no  right to have  that dispute  now          decided  in  their  favor and  then  to  use  that resolution  to          interpret the terms of the Permanent Injunction.                    Of course,  this does  not mean defendants  are forever          barred  from moving that the court orders be vacated or modified.          Special  rules are applicable  to institutional  consent decrees,          but  they concern  grounds for  vacating  or modifying  a consent                                         -18-          decree,  rather  than  undermining  the  force  of  this  body of          precedent in relation to  the effect of the consent  decree until          vacated  or  modified.   We perceive  no  error in  Judge Zobel's          invoking for  guidance, in  her consideration of  the defendants'          motion for modification of the 1984 Permanent  Injunction in this          case,   the  body   of  precedent   applicable  to   motions  for          modification  of  a  consent  decree.   This  body  of  precedent          includes the case on which she relied especially, Rufo v. Inmates                                                            ____    _______          of Suffolk County Jail, 502 U.S. 367 (1992) (holding that a party          ______________________          seeking  modification of  a consent decree  may meet  its initial          burden  by  showing  a   significant  change  either  in  factual          conditions or in law).   Under the  guidance of Rufo, however,  a                                                          ____          court considering such a motion would be concerned with tailoring          modifications according to intervening changes in law (as well as          fact).   It would not be deciding the original dispute about what          would have been  a court's answer to the dispute  had the parties          not entered into their Settlement Stipulation.                         IV.  The Nature of the 1995 Judgment                         IV.  The Nature of the 1995 Judgment                    When these  legal principles  are applied here,  can it          reasonably be  said that the  1995 Judgment modified  the consent          decree in  plaintiffs' favor, as defendants  contend, rather than                 _____________________          only in defendants' favor though less substantially  so than they          requested?   We conclude that,  as properly construed  in the way          explained  below,  the  1995  Judgment  modified   the  Permanent          Injunction  only  in defendants'  favor.    It was  appropriately                                         -19-          tailored  to the only changes in law  or in fact disclosed on the          record  before  the  district  court  as  developed  after  ample          opportunity for defendants to  present both legal and evidentiary          support for their motion for modification.                    The  only changed  circumstances  shown on  the  record          before  the district court at the  time of its 1995 Judgment were          changes  of  fact  with  respect  to  technology  of  initiating,          detailing,  effecting,  monitoring,   and  recording   electronic          transmissions, including  telephone calls.   The only  changes of          law shown  were those effected when the  Department of Correction          adopted new regulations, published  in 403 CMR    482.10  et seq.                                                                    __ ____          Rather  than  attempting  to   show  that  the  district  court's          modifications, recited in the  1995 Judgment, were not reasonably          tailored  to those changes, defendants seek to show that the 1984          Permanent Injunction was  not in  any respect a  settlement of  a          disputed issue of law but instead preserved their unlimited right          to assert their view of the law and have that dispute decided now          in their favor.                    Defendants  ask  us  on  this appeal  to  resolve  that          original dispute about the law in their favor, and argue that the          district court should have done so instead of conceiving its duty          as one of considering whether intervening changes of law (as well          as fact) had occurred, and, if so, how to tailor modifications of          the consent decree accordingly.  We reject this contention.                    The  key modification of  the 1984 Permanent Injunction          that the 1995 judgment makes is explained:                                         -20-                    Modification  of   the  Permanent  Injunction                    entered by this court  on October 15, 1984 is                    required for the Department of  Correction to                    apply new inmate telephone access regulations                    to the plaintiffs.          The 1995 judgment adds,  for clarity, a statement of  some of the          terms that remain in effect.  These terms are not enlargements of          the terms  of the Permanent Injunction in plaintiffs' favor; they          simply  clarify  limits  on the  scope  of  the modifications  in          defendants' favor.                    The  1995 judgment  says  nothing,  either directly  or          impliedly,  about how  any  future motion  for modification  with          appropriate  showing  of  cause  and  request  for  appropriately          tailored relief should be heard and decided under  the principles          of  Rufo, 502  U.S. 367.   Nor  do we.   Instead,  we leave  such              ____          matters  for decision in  the future  only if  and when  they are          appropriately presented first in district court.                                    V.  Conclusion                                    V.  Conclusion                    For   the   foregoing  reasons   Defendants-Appellants'          arguments  fail.   The  1995 judgment  of  the district  court is          AFFIRMED.          ________                                         -21-                                                          "Dissent Follows"                                                          "Dissent Follows"                                         -22-                    BOUDIN,  Circuit Judge,  dissenting.   This case  turns                    BOUDIN,  Circuit Judge,  dissenting                             _____________   __________          centrally  on the interpretation of a provision of a 1984 consent          decree  settling a case that Langton  and LeBlanc brought against          Massachusetts  corrections officials.    The  majority's  opinion          contains  many  unexceptionable statements  of  law,  but on  the          pivotal issue--the  reading of a sentence of the 1984 decree--the          majority's  reading  simply  does  not  square  with  either  the          decree's  language or  its purpose.    Indeed, because  this case          involves the regulation of a state agency by federal judges under          an  elderly  consent  decree,  it  raises  issues  of  policy and          judicial  attitude that  go beyond  a mere  quarrel about  decree          language.                    1.   In 1979, Langton  and LeBlanc filed  a 1983 action          against the state prison authorities complaining of mistreatment.          The  complaint   alleged  that  using  corrections   officers  to          distribute  medication   violated  state  health  laws   and  the          Constitution; that the number of telephone calls permitted to the          plaintiffs was  too few and the time limit too short; and finally          that the prison had been monitoring telephone calls--one call  by          Langton to  an attorney  was specified--and that  such monitoring          violated 18 U.S.C.   2510 and Mass. Gen. Laws  ch. 272,   99, the          federal and state wire-tapping statutes.                    In  an   April  1983   decision,  the   district  court          considered  the  medication  and  limited-calls  issues  at  some          length,  and  it  concluded that  no  protected  rights had  been          violated and ordered summary  judgment for the defendants.   In a                                         -23-          brief discussion of the monitoring issue, the district court said          that "[n]on-consensual monitoring of  inmate calls may violate 18          U.S.C.    2510,"  citing  a then-recent  decision of  this court.          Although the  defendants  denied any  such monitoring,  Langton's          affidavit described  one  incident in  which  he thought  that  a          telephone call to his  lawyer had been monitored; the  court said          that the affidavits,  "if just barely,"  created a factual  issue          precluding summary judgment.                    In  October  1984  the  parties  entered  a  settlement          agreement  that dealt  with  several different  grievances.   The          proposed  remedies included  new regulations  permitting inmates'          access  to telephones for at least 15 minutes per day, furnishing          Langton  a three-drawer metal file cabinet and a stereo system in          his  cell,  and  arrangements  concerning  Langton's  use  of  an          electric typewriter  in the prison library.  Finally, the parties          agreed  to  the  entry  of  a  permanent  injunction  whose  main          paragraph read as follows:                         All   officers,    agents,   servants,                      employees and attorneys of the Department                      of  Correction are  enjoined permanently,                      under both 18 U.S.C.     2510 et seq. and                                                    __ ____                      M.G.L.   c.  272,    99   et  seq.,  from                                                __  ____                      intercepting,  endeavoring  to intercept,                      or   procuring   any   other  person   to                      intercept, any wire  communication by  or                      to  William  Langton  or  David  LeBlanc,                      inmates   within   the  custody   of  the                      Department,  without   a  specific  court                      order or legislative authorization  to do                      so, except as  specifically permitted  by                      these statutes, taken  together, as  they                      have  been amended or  may be amended and                      as  they have  been construed  or may  be                      construed in reported decisions  that are                      binding  in this  Court or  in the  state                                         -24-                      courts of Massachusetts.                    There has been no showing  that this provision aimed to          resolve any dispute between the parties as to what was or was not          unlawful.    Indeed,  the   settlement  agreement  said,  in  the          paragraph proposing the injunction just quoted, that  corrections          officers "specifically deny that any of them, or anyone acting in          concert  with any of them,  ever intercepted or  monitored any of          Langton's or  David LeBlanc's  wire communications by  any means,          lawful or  unlawful .  . .  ."  In  short, the  parties disagreed          about whether monitoring had occurred, and the matter was settled          by a forward-looking decree that  enjoined obedience to two cited          statutes.                     In  recent years,  prisons have encountered  a growing          number  of problems created  by inmate  telephone calls.1   These          problems  include the  use of  telephones to obtain  narcotics in          prisons, to promote  illegal drug  trading outside  of prison  as          well as other  criminal operations, commit fraud in  the purchase          of  merchandise  and  goods  for  prisoners,  and  to  carry  out          obstructions   of  justice   and   escape  plots.      Ultimately          Massachusetts followed a number of other prison systems including          the federal  prison system in  adopting a standardized  regime to          control and track inmate use of the telephone system.                    The new Massachusetts regime allows each inmate to list                                        ____________________          1  This  intervening history is  recounted in defense  affidavits          filed  in  the district  court incident  to  the latest  round of          litigation  and  the  description  was largely  accepted  by  the          district court.                                         -25-          up  to ten  family members  and  friends and  up to  five private          attorneys  or  law  firms,  in addition  to  three  automatically          authorized legal service organizations.  Each inmate can  place a          call only by using his or her personal identification number, and          the  technology restricts  the call  to one  of the  18 telephone          numbers authorized for that inmate.  To obtain such a PIN number,          the inmate completes a form that requires the inmate's consent to          various conditions, including call monitoring, call recording and          the retention  of various "details"  incident to the  call (e.g.,                                                                      ____          the  time  of the  call,  the  number  called).    But  calls  to          attorneys, law firms and the  legal service organizations are not                                                                        ___          subject to monitoring or recording.                    Langton and  LeBlanc refused  to  complete the  consent          forms, were denied telephone  access, and in June 1994  began the          contempt proceeding that prompted  the present appeal.  When  the          defendants  moved to dismiss the petition on the ground that they          had not violated the consent decree, the district judge indicated          that a  motion to  modify the  decree should be  filed.   Without          agreeing  that  it  was   necessary,  the  defendants  filed  the          suggested  motion.   Their  affidavits provide  reasons why  they          think  it impractical or dangerous to  except Langton and LeBlanc          from the regime that is now applied to all other prisoners.                    In  February  1995,  the   district  judge  entered  an          unpublished decision  which treated the issue before the court as          a motion for modification of the consent decree.  Fed. R. Civ. P.          60(b)(5), (6).  The court granted the government's motion in part                                         -26-          and denied it in part, ruling that the new regime  did respond to          new  technology  and real  threats  of  abuse, that  Langton  and          LeBlanc could be limited as to the number of telephone calls they          could  make, but that there was no  pattern of abuse by either of          them to justify the monitoring  of their calls.  The core  of the          court's injunctive  judgment  is  that  prison  officials  cannot          monitor or record calls made by these two plaintiffs.                    2.   The  broad  question  on  appeal  is  whether  the          monitoring and  recordation regime  violates the  consent decree.          The  district  court  evidently  assumed that  it  did--thus  its          suggestion that  the government file a  motion for modification--          but it never  addressed this issue in detail.   Yet if the regime          does not violate the consent decree, the contempt proceeding case          should have  been  dismissed and  the Rule  60(b) motion  mooted.          Langton  and LeBlanc  have never  moved to  modify the  decree to          enlarge their rights; and  prison officials, in moving  to modify          the  decree  in their  favor  (in  accordance  with the  district          court's suggestion), certainly were not abandoning  their bedrock          position that the new regime was  lawful under the decree and did          not require any decree modification.                    In  my view,  a  realistic reading  of the  1984 decree          provision is that it  effectively enjoined state prison officials          from violating the cited  provisions of federal or state  law and                                                                        ___          nothing  more.   True  the provision  was  clumsily worded:    it          _____________          juxtaposed  a  ban on  interception,  itself  a term  differently          defined under the two cited statutes, with an awkward but broadly                                         -27-          worded qualification, namely, that  interceptions are allowed "as          specifically permitted  by the statutes, taken  together, as they          may have  been amended or  may be amended  and as they  have been          construed  or may  be construed  in reported  decisions  that are          binding in this Court or the state courts of Massachusetts."                    The injunction  could and  probably should have  used a          much   simpler  formulation,   such  as   a  ban   on  "unlawful"          interceptions, but  everyone knows  that lawyers  often overwrite          legal documents.  There is no indication anywhere that the phrase          "specifically  permitted" means  anything more  than "permitted,"          the term  "specifically" being  the kind  of legal  flourish that          usually causes more trouble  than it solves.   In any event,  the          provision  itself describes  the defendants  as "enjoined  .  . .          under both 18 U.S.C.     2510 et seq. and M.G.L. c. 272,    99 et                                        __ ____                          __          seq." and nothing in  the provision suggests that the  injunction          ____          was intended to be broader than the statutes themselves.                    This   view   is   confirmed   by   the  "circumstances          surrounding  the  formation  of  the  consent  order"  which  are          properly considered in its interpretation.  United States v.  ITT                                                      _____________     ___          Continental  Baking Co.,  420 U.S.  223, 238  (1975).   The casus          _______________________                                     _____          belli,  it  must be  remembered, was  a  claim, denied  by prison          _____          officials, that  they  had  monitored an  inmate's  call  to  his          lawyer, something that no one would expect a court or legislature          to  authorize.   The prison  officials, who never  contended that          such a monitoring  of calls  to lawyers would  be lawful,  simply          denied  that they did any  monitoring.  The  parties then settled                                         -28-          the  case by having the  defendants enjoined to  obey federal and          state law on interception,  as it might be construed by courts or          amended by legislatures from time to time.                    The  panel majority expresses disbelief that plaintiffs          in a lawsuit would ever settle merely for a promise by defendants          to  obey the  law.   But in  fact such  provisions are  common in          decrees (SEC consent decrees  are a classic example) and,  in any          event, a promise simply to obey the law made perfectly good sense          in  this case.   The  settlement provided  Langton and  LeBlanc a          small  number  of specific  benefits  already described.    As to          telephone monitoring, the prison did not defend listening in on a          telephone  call between an inmate and his lawyer, but denied that          monitoring had occurred  or was routinely practiced.  Langton and          LeBlanc then settled for a general provision that made the prison          officials subject to contempt proceedings if they did violate the          law in the future.                    If the  decree  is  read  in  this  fashion,  then  the          contempt motion boils  down to the question  whether the prison's          new regime is lawful under the relevant statutes.  Nothing in the          decree's terms  prohibits monitoring or  recording as such.   The          decree uses the term "interception" which is a  statutory concept          freighted with exceptions, and the decree's ban is itself subject          to the broad "except as" clause already described.  Nor does  the          panel majority hold that the present regime is unlawful under the                         ____          federal and state statutes but only that reasonable arguments can          be made on both sides.                                         -29-                    The issue of the regime's lawfulness under the statutes          may  be debatable, but  it is doubtful  that it is  a close call.          Massachusetts has  adopted  a  widely  used model,  used  by  the          federal  prison system as well, see generally 28 C.F.R.   540.100                                          ___ _________          et seq.,  and practically all  the case  law cited in  the briefs          __ ____          tends  to support it.2  Given  the general wording of the federal          and  state statutes,  and  the strong  policy considerations  for          giving prison officials "appropriate deference  and flexibility,"          Sandin  v.  Conner, 115  S.  Ct. 2293,  2299  (1995), it  is very          ______      ______          unlikely that a regime like that of Massachusetts would be struck          down,  even if  there are  possible occasional  applications that          might raise hard questions.                    In any  event, once  it is  understood that the  decree          only  precludes  unlawful  interception, the  district  court has                           ________          provided no  basis for  entering a  judgment  against the  prison          officials  since that court did not find that the regime violated          federal or state law.   It is true that this general  question is          one of law that we might in theory resolve ourselves; but no such          theory has  been adequately  briefed  by the  plaintiffs, and  no          decision  of a  district  court  on  this  issue  has  ever  been          rendered.   The  proper solution  in this  case is to  vacate the                                        ____________________          2   E.g., United States  v. Horr, 963  F.2d 1124, 1126  (8th Cir.              ____  _____________     ____          1992);  United States v. Sababu, 891 F.2d 1308, 1326-30 (7th Cir.                  _____________    ______          1989); United States v.  Willoughby, 860 F.2d 15, 19-21  (2d Cir.                 _____________     __________          1988);  Martin v.  Tyson, 845  F.2d 1451,  1458 (7th  Cir. 1988);                  ______     _____          United  States  v. Amen,  831 F.2d  373,  378-80 (2d  Cir. 1987);          ______________     ____          United States v. Paul, 614 F.2d 115, 117  (6th Cir. 1980); United          _____________    ____                                      ______          States v. Green, 842  F. Supp. 68, 71-72 (W.D.N.Y.  1994); United          ______    _____                                            ______          States v. Valencia, 211  F. Supp. 608, 611 (S.D.  Fla. 1989); Lee          ______    ________                                            ___          v. Carlson, 645 F. Supp. 1430, 1438-39 (S.D.N.Y. 1986).             _______                                         -30-          district court's 1995 judgment and remand to give the  plaintiffs          the  opportunity to show that the present regime is unlawful, and          therefore in violation of the decree.          _________                    The  panel  majority's  contrary  construction  of  the          decree does not rest on an  attempt to grapple seriously with its          language and  background.  Rather, the  majority relies primarily          on several  rather general propositions:   that parties sometimes          do resolve  by consent  decree legal issues  that are  reasonably          debatable, that such resolutions have an operative effect through          the consent decree, and that parties are bound by the decree even          if  the  legal issues  should have  been  decided the  other way.          These notions might have some bearing if the prison officials had          agreed, with no exceptions, that "monitoring and recordation" are          prohibited.  But the defendants  did not make such a bargain,  so          the general propositions relied  on by the majority have  nothing          to do with this case.                    To sum  up,  the panel  majority  could decide  on  the          merits  whether the  new  Massachusetts regime  does violate  the          federal or  state statutes, and it would  be equally permissible,          and in my view more appropriate, to vacate the 1995  judgment, to          remand and to  allow the district court  to consider this  set of          issues  in the  first instance.   But what  is not  tenable is an          interpretation  of  the  1984  consent  decree,  without  serious          support  in either  its  phrasing or  its  context, that  enjoins          Massachusetts officials from doing  what (so far as we  know from          the precedents) they  lawfully can do under existing  federal and                                         -31-          state law.                    Courts have been widely  criticized in recent years for          excessively interfering with  state institutions such as  prisons          and, of  course, these charges  are often made  by those who  are          unaware  of the abusive  conditions that the  federal decrees are          invoked  to remedy.  But  it does behoove  federal judges--who do          not    have   political   responsibility   for   managing   these          institutions--to  consider   with  care  and  modesty   how  they          interpret  their  authority,  especially  in  construing  elderly          decrees as applied to entirely new sets of conditions.                                         -32-
