

                  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-
