                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-4-2001

Holland v. New Jersey Dept. Corrections
Precedential or Non-Precedential:

Docket 00-1801, 00-2356, 00-2357




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Recommended Citation
"Holland v. New Jersey Dept. Corrections" (2001). 2001 Decisions. Paper 67.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/67


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Filed April 4, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 00-1801, 00-2356 and 00-2357

WALTER HOLLAND; OVESTON COX; TERR Y JACOBS;
BRIAN TAYLOR; WALTER WILLIAMS; MILDEO RAGHU;
J. JAMES ROBERSON, LUTHER GREGG; WILHELMINA
SHERROD; LILLI SMITHERMAN, as Administratrix of the
Estate of Richard Smitherman, on behalf of themselves
and all other persons similarly situated

v.

NEW JERSEY DEPARTMENT OF CORRECTIONS, THE;
**JACK TERHUNE; WILLIAM PLANTIER; SCOTT FAUNCE;
GEORGE BLASKEWICZ; JOHN SWAL; JAMES WILLIAMS;
FRANK BUDD; DAVID WIANECKI; LOUIS HELMKIN;
ARTHUR FINGERMAN; WAYNE SCHUL TZ; RONALD
ENSANA; THOMAS MORAN; MICHAEL VIGGIANO; PAUL
SCHUSTER; GREGORY DAUKSHAUS, LAWRENCE
CARPENTER; PATRICK ARVONIO; AL OR TIZ; JOSEPH
BUTLER; ROBERT MILLER; HERBERT BOWLBY;
MICHAEL DEVINE; DOMINICK CONTE; BARRY P ARKS;
RAYMOND CONOVER; DAVID TILBURY; ANTHONY
PORTO; ROBERT STEPHENS; JAMES LUTZ; FREDERICK
VALUSEK; CAROLYN ABBOA-OFFEI; L YDELL SHEERER;
CHRISTOPHER NORELLI; GEORGE KENNYBROOK;
individually and in their capacities as employees and
agents of the New Jersey Department of Corrections;
STATE LAW ENFORCEMENT CONFERENCE OF THE NEW
JERSEY STATE POLICEMEN'S BENEVOLENT
ASSOCIATION; NEW JERSEY LAW ENFORCEMENT
SUPERVISORS ASSOCIATION, PRIMARY LEVEL
SUPERVISORY LAW ENFORCEMENT UNIT; NEW JERSEY
SUPERIOR OFFICER'S LAW ENFORCEMENT
ASSOCIATION; CAPTAINS UNIT; INTERNAL AFF AIRS
INVESTIGATORS ASSOCIATION, INTERNAL AFF AIRS
INVESTIGATORS UNIT, as necessary parties pursuant to
Fed. R. Civ. Pro. 19(a)

(D.C. No. 93-cv-01683)

JAMES LUTZ

v.

LUTHER GREGG

(D.C. No. 94-cv-02391)

USA,
Plaintiff

LILLI SMITHERMAN, in her Capacity as Executrix of the
Estate of RICHARD SMITHERMAN; WALTER HOLLAND;
OVESTON COX; BRIAN TAYLOR; TERRY JACOBS;
WALTER WILLIAMS

Intervenor-Plaintiffs

v.

STATE OF NEW JERSEY; NEW JERSEY DEP ARTMENT
OF CORRECTIONS; **JACK TERHUNE, in his Official
Capacity as Commissioner of the New Jersey Department
of Corrections; STATE LAW ENFORCEMENT
CONFERENCE OF THE NEW JERSEY STATE
POLICEMEN'S BENEVOLENT ASSOCIATION; NEW
JERSEY LAW ENFORCEMENT SUPERVISORS
ASSOCIATION, PRIMARY LEVEL SUPERVISORY LAW
ENFORCEMENT UNIT; NEW JERSEY SUPERIOR
OFFICERS LAW ENFORCEMENT ASSOCIATION,
SUPERIOR OFFICERS LAW ENFORCEMENT UNIT; NEW
JERSEY SUPERIOR OFFICERS LAW ENFORCEMENT
ASSOCIATION, CAPTAIN UNIT; INTERNAL AFF AIRS
INVESTIGATORS ASSOCIATION, INTERNAL AFF AIRS
INVESTIGATORS UNIT

(D.C. No. 94-cv-03087)

                               2
USA,
Plaintiff

LENA HASKINS, on behalf of herself and all other persons
similarly situated,
Intervenor-Plaintiffs

v.

NEW JERSEY DEPARTMENT OF CORECTIONS, THE,
Defendant

**JACK TERHUNE; JOSEPH GLOVER, individually
and in their capacity as employees of the New Jersey
Department of Corrections,
Intervenor-Defendants

(D.C. No. 94-cv-04724)

*State of New Jersey; New Jersey
Department of Corrections;
**Jack Terhune, Appellants in No. 00-1801

*(Pursuant to F.R.A.P. 12(a))
**(Substituted Pursuant to Rule 43(c)(2))

United States of America, Appellant in No. 00-2356

Walter Holland, Oveston Cox, Terry Jacobs, Brian Taylor,
Walter Williams, Mildeo Raghu, James Roberson, Luther
Gregg, Wilhelmina Sherrod, and Lilli Smitherman, as
Administratrix of the Estate of Richard Smitherman, on
behalf of themselves and all others similarly situated, and
Lena Haskins, on behalf of herself and all other persons
similarly situated, Appellants in No. 00-2357

On Appeal From the United States District Court
For the District of New Jersey
District Judge: Honorable Joel A. Pisano

Argued: December 1, 2000

Before: BECKER, Chief Judge, RENDELL and
MAGILL,* Circuit Judges.
_________________________________________________________________

* Honorable Frank J. Magill, United States Cir cuit Judge for the Eighth
Circuit, sitting by designation.

                               3
(Filed: April 4, 2001)

        JOHN J. FARMER, JR., ESQUIRE
        ATTORNEY GENERAL OF NEW
         JERSEY
        MICHAEL J. HAAS, ESQUIRE
        ASSISTANT ATTORNEY GENERAL
        JAMES D. HARRIS, ESQUIRE
         (ARGUED)
        TODD J. SCHWARTZ, ESQUIRE
        DEPUTY ATTORNEYS GENERAL
        Office of Attorney General of
         the State of New Jersey
        R.J. Hughes Justice Complex
        P.O. Box 112
        Trenton, NJ 08625

        Counsel for State of New Jersey,
        New Jersey Department of
        Corrections, and Jack Terhune, as
        Appellants/Cross-Appellees

        MIRIAM F. CLARK, ESQUIRE
         (ARGUED)
        LEWIS M. STEEL, ESQUIRE
        RACHEL S. LEVITAN, ESQUIRE
        Steel, Bellman, Ritz & Clark, P.C.
        225 Broadway, Suite 2501
        New York, NY 10007

        Counsel for Holland and Haskins
        Classes as Appellees/Cross-
        Appellants

                               4
        BILL LANN LEE, ESQUIRE
        ASSISTANT ATTORNEY GENERAL
        DENNIS J. DIMSEY, ESQUIRE
        SETH M. GALANTER, ESQUIRE
         (ARGUED)
        MARIE K. McELDERRY, ESQUIRE
        United States Department of Justice
        P.O. Box 66078
        Washington, DC 20035-6078

        Counsel for the United States as
        Appellee/Cross-Appellant

OPINION OF THE COURT

BECKER, Chief Judge.

Several employees of the New Jersey Department of
Corrections (NJDOC) filed suit in the District Court for the
District of New Jersey, alleging employment discrimination
and harassment on the basis of race and gender at NJDOC
facilities. The United States Department of Justice (DOJ)
also instituted a discrimination and harassment lawsuit
against NJDOC, and this case was consolidated with the
employees' action to form the present lawsuit. After
extensive discovery followed by vigorous negotiations, the
parties, assisted by a court-appointed mediator , drafted a
proposed Consent Decree aimed at r ectifying the
complained-of conditions. On May 10, 1996, the District
Court gave final approval to and implemented the Decree,
which provided that it would be in effect for four years from
the date it was implemented, and that the District Court
was authorized to take "such action as may be necessary or
appropriate to effectuate the purposes of this Decree."

In May 2000, motivated by certain problems with
implementation, the District Court extended the Decr ee by
ten months. The court rested its conclusion that it had the
power to extend the Consent Decree on two bases. First, it
opined that language in the Decree granted it this power.
Second, the court reasoned that it possessed inherent
power to enforce compliance with the pr ovisions of consent

                               5
decrees that it approved, and to modify such decrees in
response to changed circumstances. NJDOC contests the
ten-month extension of the Decree, arguing that the
District Court did not have the power to extend the Decree
under its terms, and that the court failed to make adequate
findings to support its use of its inherent compliance
enforcement or modification powers to extend the Decree.

The issue of whether the Decree itself gave the District
Court the power to extend it requires us to address the
proper standard of review of a district court's interpretation
of a consent decree that it has approved and implemented.
Several of our sister circuits have adopted"deferential de
novo" as the standard of review for this situation, and the
plaintiffs encourage us to do likewise. W e have difficulty
understanding what the oxymoronic standar d of
"deferential de novo" could mean, and r eject this approach
in favor of straightforward de novo review. Interpreting the
Decree de novo, we conclude that the language of the
Decree does not itself confer power on the District Court to
extend it.

On the other hand, it is settled that a court does have
inherent power to enforce a consent decr ee in response to
a party's non-compliance, and to modify a decr ee in
response to changed conditions. See, e.g. , Spallone v.
United States, 493 U.S. 265, 276 (1990) (stating that courts
have inherent power to enforce compliance with their
consent decrees); United States v. United Shoe Mach. Corp.,
391 U.S. 244, 248 (1968) (noting that courts have inherent
power to modify a consent decree upon an appr opriate
showing). Furthermore, a court has br oad equitable power
to fashion a remedy in its exercise of its compliance
enforcement and modification powers when a consent
decree is aimed at remedying discrimination, as is the
Consent Decree in the case at bar. See Spallone, 493 U.S.
at 276 (stating that a court can exercise "broad equitable
powers" when enforcing compliance with a decree aimed at
remedying past discrimination); Rufo v. Inmates of Suffolk
County Jail, 502 U.S. 367, 381 n.6 (1992) (r ecognizing that
a court's modification power "is long-established, broad,
and flexible") (internal quotes and citation omitted).

                               6
It is also clear that this broad remedial power can be
used to extend the effective time period of a consent decree.
See Chrysler Corp. v. United States, 316 U.S. 556 (1942)
(consent decree extended via exercise of modification
power); United States v. Local 359, United Seafood Workers,
55 F.3d 64 (2d Cir. 1995) (parts of consent decree extended
via exercise of compliance enforcement power). However, a
court must make specific findings that support its use of
these inherent powers. See Hughes v. United States, 342
U.S. 353, 357-58 (1952) (hearing and findings of fact are
required for exercise of modification power); Harris v. City
of Philadelphia, 137 F.3d 209, 214 (3d Cir. 1998) (specific
findings needed for exercise of compliance power).

We conclude that the District Court did not make
adequate factual findings to support its exer cise of either
the compliance enforcement or the modification power. The
court neither identified sufficient incidents of non-
compliance by NJDOC that would justify an extension of
the entire Decree, nor did it specify the changed conditions
that would justify the modification of the ending date of the
Decree. We therefore will vacate the District Court's Order
and remand for specific factual findings by the District
Court, and for the District Court to extend only those parts
of the Decree whose extension is warranted by those
specific findings.1
_________________________________________________________________

1. The plaintiffs have cross-appealed, contending that the District Court
abused its discretion by extending the Decr ee only for ten months
instead of the two years requested by plaintif fs, and that the court
abused its discretion by denying their r equest for re-argument on their
motion to hold NJDOC in contempt. We will summarily affirm the
District Court's Order denying the plaintif fs' motion for re-argument
because we are satisfied that the court did not abuse its discretion in
denying it. The plaintiffs' argument that the District should have
extended the Decree for two years rather than ten months fails for the
same reason that we will vacate the ten month Decree extension: the
District Court did not make sufficient factualfindings to support an
extension of the entire Decree.

                               7
I. Facts and Procedural History

A.

In June 1991, Richard Smitherman, an African-American
employee of NJDOC, filed a complaint with the Equal
Employment Opportunity Commission (EEOC), alleging that
white officers, supervisors, and managers at NJDOC had
subjected him and other black employees to constant racial
remarks and slurs. Pursuant to Title VII of the Civil Rights
Act of 1964, 42 U.S.C. S 2000e et seq., the EEOC
investigated these allegations and found reasonable cause
to believe that they were true. The EEOC then r eferred the
complaint to the DOJ. In late 1993, the DOJ infor med the
State of New Jersey that it had concluded that NJDOC had
engaged in a pattern of discrimination against black
employees. After the DOJ was unsuccessful in its attempts
to get NJDOC to respond voluntarily to the pr oblem, the
DOJ filed a complaint in the District Court for the District
of New Jersey in June 1994, alleging a patter n or practice
of race discrimination and harassment.2 The DOJ filed a
separate complaint against NJDOC in September 1994
alleging that NJDOC had engaged in gender discrimination
as well.

In April 1993, six NJDOC employees (including
Smitherman) filed their own suit in the district court,
alleging racial discrimination, harassment, and r etaliation
against those who complained of discrimination and
harassment at one NJDOC facility; this complaint was later
amended to include gender discrimination claims, and
other NJDOC employees joined the action as plaintif fs.3 In
_________________________________________________________________

2. There are many defendants to this action, including the State of New
Jersey. For brevity's sake, we will simply r efer to NJDOC when
discussing the defendants, since NJDOC is the main defendant.

3. The amended complaint included class allegations, and defined the
class as all NJDOC employees who complained of racial discrimination
and harassment against African Americans at NJDOC, and all NJDOC
employes who complained of sex discrimination and harassment against
women at NJDOC. The Consent Decree was enter ed into before the
District Court decided whether to certify the class. Because the Consent
Decree and various court documents refer to counsel for the individual
plaintiffs as "class counsel," we will do likewise in this opinion.

                                  8
September 1994, all of the discrimination actions against
NJDOC were consolidated in the District of New Jersey.4
The parties then engaged in discovery and began a 16-
month period of negotiations. These negotiations
culminated in a settlement agreement, which included over
$5 million in damages for the class members as well as a
Consent Decree. The Decree was preliminarily approved by
the District Court in February 1996, and finally approved
and entered by the court on May 10, 1996.

B.

The Consent Decree included broad pr ohibitions against
discrimination and retaliation against African-American
and female employees and specific penalties for those
engaging in such conduct. The Decree also pr ovided for a
comprehensive overhaul of NJDOC's method of handling
employee complaints of discrimination and retaliation,
special training for NJDOC employees, reporting
requirements regarding discrimination complaints and
discipline, and implementation of a dispute r esolution
mechanism. The terms of the Decree pr ovided that it would
be in effect for four years from the date it was implemented
(May 10, 1996); it also provided that the District Court was
authorized to take "such action as may be necessary or
appropriate to effectuate the purposes of this Decree."

While NJDOC and the other defendants admitted no
liability as part of the settlement, the District Court stated
in its opinion and order approving the settlement
agreement that "the plaintiffs' risk of establishing liability in
this case does not appear to be great." Mor eover, the court
noted that "[t]hroughout the negotiations, the defendant
State of New Jersey has recognized the pervasive pattern of
discrimination that has characterized the NJDOC during
the relevant class period. . . . [T]he State of New Jersey
supports the Consent Decree as the best way to eradicate
_________________________________________________________________

4. With the consent of the parties, this case was referred to then-
Magistrate Judge Joel A. Pisano, who retained jurisdiction over the
proceedings after being appointed to the District Court. We will refer to
all of Judge Pisano's orders and the pr oceedings before him as those of
the District Court.

                               9
the Department of Corrections' chronic history of
discrimination."

In contrast, the parties paint very differ ent pictures of the
four years that the Decree was in place. Class counsel and
the DOJ describe numerous violations of the Decree by the
NJDOC, spanning the entire four years. NJDOC does not
mention those violations; indeed, it discusses only one area
in which it admits that it was substantially non-compliant
with the Decree: the speed with which it completed its
investigations of employee discrimination complaints, which
is addressed in P 15 of the Decree. Paragraph 15 provides:

        The EED [Equal Employment Division of NJDOC] shall
        complete investigations and issue findings on
        complaints of employment discrimination within forty-
        five (45) days of receipt of complaints. If, under
        exceptional circumstances, a finding cannot be issued
        in this time period, class counsel and the United States
        shall be notified promptly in writing and given an
        explanation of the reasons therefor .

After NJDOC was consistently unable to meet the 45-day
requirement, the parties agreed in August 1997 to extend
this 45-day period to 60 days. Even after this extension,
NJDOC was still unable to meet the requir ements of P 15
until March 2000, two months before the original ending
date of the Decree.

Several times over the original four year ter m of the
Decree, the plaintiffs asked the District Court to hold
NJDOC in contempt for its "extensive and serious violations
which undermined the Decree's objectives." Class Pl's Br. at
3. In their last request for contempt sanctions (on
September 23, 1999), the plaintiffs also r equested that the
District Court extend the Decree another two years. The
District Court ruled on this request on May 10, 2000, when
it declined to hold NJDOC in contempt but extended the
Decree for ten months.

NJDOC's argument is based on the premise that the
District Court extended the entire Decr ee based solely on:
(1) NJDOC's delay in complying with P 15 of the Decree;
and (2) a naked claim (made by class counsel) of

                               10
discriminatory discipline.5 In contrast, the plaintiffs argue
that the District Court extended the Decree not only on
these bases but also on a long history of NJDOC's non-
compliance with "virtually every Decree pr ovision." Class
Pl.'s Br. at 8. More specifically, the plaintiffs contend that,
in addition to its non-compliance with P 15, NJDOC was
also in substantial non-compliance with the Decr ee when
it: (i) delayed for about four months before posting the
Decree in all NJDOC facilities, in violation ofP 65; (ii)
delayed for more than three years the training and
education of NJDOC employees on racial and gender
discrimination and the implementation of the new internal
complaint mechanisms, in violation of P 25; (iii) delayed the
training for investigators in the Equal Employment
Division, in violation of P 7; (iv) failed to conduct sufficiently
thorough and proper investigations of internal
discrimination complaints, in violation of various Decree
provisions; and (v) failed to provide the DOJ and class
counsel with information to which they wer e entitled under
the terms of the Decree, in violation ofPP 32-35.
Furthermore, the plaintiffs ar gue that the District Court
found that the evidence of discriminatory discipline that the
plaintiffs presented was sufficient to make out a prima facie
case of discriminatory discipline, thus providing a further
basis for the court to retain jurisdiction over this case.

C.

On May 8, 2000, the District Court held a hearing in
which it announced that it was going to issue an or der
extending the decree. At that time it articulated various
findings intended to support the order . On May 10, 2000,
the Court entered an order extending the Decree "in its
entirety, pending further order, through March 1, 2001."
On June 9, 2000, NJDOC appealed to this Court and
applied to the District Court for a stay of the Or der. On
June 22, the plaintiffs moved for furtherfindings in
_________________________________________________________________

5. The discriminatory discipline claim was that NJDOC supervisors
meted out discipline in a discriminatory fashion, punishing African-
American employees more severely than white employees for the same or
similar infractions.

                               11
support of the Order, and moved for r econsideration of their
contempt motion and their motion for a two-year extension
of the Decree, both of which the May 10 Or der had denied.
The District Court held a hearing on these motions on July
7, 2000, and denied them in an Order accompanied by a
Memorandum Opinion dated July 25, 2000. Befor e us are
NJDOC's appeal of the May 10 Order, as well as the
plaintiffs' cross-appeals of the May 10 and July 25 Orders.6

Notwithstanding the timely appeals to this Court, the
District Court's docket entries reflect that the plaintiffs
have filed with the District Court further r equests for relief
under the extended Decree, including a r equest to hold
NJDOC in contempt for its actions during the ten-month
extended period. The District Court, however , has declined
to rule on these requests, because it concluded that this
appeal divested it of jurisdiction over the r equests.7
_________________________________________________________________

6. The District Court had jurisdiction over this case pursuant to 28
U.S.C. SS 1331 & 1345, and 42 U.S.C. S 2000e-5(f)(3). We have
jurisdiction over NJDOC's appeal and plaintif fs' cross-appeals pursuant
to 28 U.S.C. S 1292(a)(1).

7. Even though the March 1, 2001, ending date of the Decree extension
has already passed as of the date of the filing of this opinion, this
appeal
is not moot for two reasons. First, the plaintiffs' cross-appeal--asking
us
to hold that the District Court abused its discr etion by not holding
NJDOC in contempt and by extending the Decree for only ten months
rather than the two years plaintiffs asked for--is clearly not moot
because these claims are not affected by the March 1 extension end
date, and, because our analysis of whether the District Court abused its
discretion by not extending the Decree for two years involves the same
issues as our analysis of NJDOC's appeal, see infra note 18, our
discussion of these issues in the context of NJDOC's appeal is not moot
either. Second, NJDOC's appeal is not moot because of the "collateral
consequences" exception to the mootness doctrine. More specifically, "a
case is not moot, even if the [appellant's] primary injury is resolved, so
long as the [appellant] continues to suf fer some harm that a favorable
court decision would remedy." Erwin Chemerinsky, Federal Jurisdiction
S 2.5.2, at 130 (2d ed. 1994). In the case at bar, the District Court has
delayed, pending the outcome of this appeal, its r esponse to plaintiffs'
motion to hold NJDOC in contempt for NJDOC's alleged non-compliance
during the ten-month Decree extension period. This possibility of being
held in contempt "casts what may well be a substantial adverse effect on
the interests of the petitioning part[y]." Super Tire Engineering Co. v.

                               12
In order to determine what findings the District Court
used as a basis for extending the Decree, we examine all of
the documents arising from these hearings and Orders (i.e.,
the May 10 and July 25 Orders themselves, the
Memorandum Opinion that accompanied the July 25
Order, and the transcripts of the May 8 and July 7
hearings). In the May 10 Order, the District Court gave a
short explanation of its reasons and purposes for extending
the Decree. The court stated that the purposes of the
extension were to:

        (1) allow class counsel and the United States to
        continue to monitor the performance of the State in
        meeting its obligations under the consent decr ee; (2)
        permit the Court to have the benefit of further
        submissions and time in order to determine how long
        the consent decree ought to remain open; (3) and
        permit the State to demonstrate its intention,
        willingness, and ability to perform its obligations under
        the consent decree.

The reasons the District Court gave for extending the
Decree were that "until approximately the first quarter of
2000 the State was not in substantial compliance with the
consent decree, principally in connection with its obligation
to issue timely decisions regarding discrimination
complaints [i.e., P 15]; . . . and it further appearing that
class counsel have raised a claim of discriminatory
discipline."

NJDOC argues that it is clear from the wording of the
May 10 Order that the District Court extended the Decree
_________________________________________________________________

McCorkle, 416 U.S. 115, 122 (1974). The District Court has also delayed,
pending the outcome of this appeal, its decision whether to extend the
Decree beyond the ten-month extension. Because we will remand this
case to the District Court for more specific factual findings that may
include, for example, findings of NJDOC's non-compliance with the
Decree between May 10, 2000 and March 1, 2001, the District Court
may decide that a further extension of the Decr ee is warranted, which
would have an "adverse effect on the inter ests" of NJDOC. Id. Thus, this
appeal is also not moot under the rule set forth in Super Tire. See also
Union Nat'l Bank of Pittsburgh v. Interstate Commerce Comm'n, 569 F.2d
742, 746-47 (3d Cir. 1977).

                               13
solely on the basis of its past non-compliance withP 15,
along with a conclusory claim of discriminatory discipline.
Much of NJDOC's argument rests on its contention that
these two points are not a sufficient basis for extending the
entire Decree another 10 months.

The District Court presented more explanation of its
reasons for extending the Decree at the May 8 and July 7
hearings. The plaintiffs argue that the record from these
hearings shows that the District Court based the extension
on NJDOC's sum total non-compliance with the Decr ee over
the four years it had been in place. While this non-
compliance was "principally" in connection with NJDOC's
failure to meet its P 15 obligations, the plaintiffs contend
that it also includes the other incidents of non-compliance
outlined at the end of Section I.B. supra, namely that
NJDOC delayed employee training and education, delayed
posting the Consent Decree, perfor med inadequate
investigations of discrimination complaints, and failed to
provide the DOJ and class counsel with r equested
information.

The plaintiffs support their position by noting that at the
May 8 hearing the District Court referr ed to "a number of
other specific complaints" by class counsel and individual
class members, in addition to NJDOC's P 15 non-
compliance. The plaintiffs also point to portions of the July
7 hearing where the court, in response to NJDOC's claim
that it was improper to extend the Decr ee based solely on
non-compliance with P 15, detailed other pr oblems that had
arisen with NJDOC's performance under the Decree aside
from P 15 issues. These incidents, which the court stated
are "matters of public record in connection with this case,"
were described by the District Court at the July 7 hearing
as "an issue and a complaint about the qualifications of
investigators and the training that had been given to
investigators," an "issue" regar ding "the training and
education of all employees, . . . an issue raised as to the
racially offensive cartoon at Northern State Prison, . . . a
dispute raised as to the communications that Class
Counsel said they were entitled to," and"another issue . . .
which had to do with whether some complaints of criminal
conduct" were improperly referr ed within NJDOC. After
laying out these "issues," the court stated the following:

                               14
        I go through all of this for the purpose of
        demonstrating that I believe that I had justifiable
        motivations in extending the entire Decr ee, and not
        simply one portion of it. That, in fact, ther e had been
        enough of a record made on issues other than the
        timing of the EED decisions, which justify the Court in
        seeing to it that all parts of the Consent Decr ee remain
        in force for a period of time. . . . I found there to be
        enough problems with other parts of the Decr ee than
        paragraph 15, to justify extending it in its entir ety.

After the court made this explanation, counsel for NJDOC
asked the court whether the above was a new holding as of
July 7 or a clarification of a previous holding. The court
replied it was both.

In the Memorandum Opinion that accompanied its July
25 Order, the court denied the plaintif fs' motion for further
specific factual findings supporting the Decr ee extension,
explaining this denial by stating that "to the extent that the
Court found it necessary to reach the factual issues
specified by plaintiff in this motion, the Court has done so
and such findings can be found in the transcripts of several
hearings held over the past year."

As noted above, the District Court also based the Decree
extension on the plaintiffs' allegation of discriminatory
discipline by NJDOC (i.e., that NJDOC meted out discipline
to its employees in a discriminatory fashion). The court,
however, did not make a finding or conclude that NJDOC
engaged in discriminatory discipline, but instead stated the
following regarding the discriminatory discipline claim at
the May 8 hearing:

        I further find that class counsel have raised a claim of
        discriminatory discipline of corrections officers
        following the analysis of rubric of the Hazelwood case
        and others which justifies and in fact, it doesn't justify,
        it requires the court to continue to exer cise jurisdiction
        over the case in order to adjudicate any legitimate
        claim of discriminatory discipline. The fact of the
        matter is that the court has not yet adjudicated this
        issue. . . . I feel that the court must not only exercise
        jurisdiction over the continuation of the dispute but

                                15
        also entertain further proceedings. . . . I don't know
        how this discriminatory discipline claim is going to play
        out, but I do need under the--on the strength of the
        record that I have, I do need to exer cise, continue to
        exercise jurisdiction over the dispute.

NJDOC contends that the District Court never made any
real findings on this issue, and that the plaintiffs have
merely raised an allegation, which is not an adequate basis
for extending the Decree. The DOJ counters that the above-
quoted section is a finding that the evidence of
discriminatory discipline was sufficient to make out a prima
facie case and thus to shift the burden to the defendants to
produce countering evidence under the rule in Hazelwood
School District v. United States, 433 U.S. 299, 307-08
(1977).

II. Discussion

The District Court rested its conclusion that it had the
power to extend the Consent Decree on two bases: (1)
language in the Decree itself; and (2) its inherent power,
either to enforce compliance with the pr ovisions of its
consent decree or to modify a consent decr ee in response to
changed circumstances. NJDOC argues that the Decree
language did not give the District Court the power to extend
the Decree. NJDOC also contends that a court's inherent
power to enforce compliance with a consent decr ee only
extends to the particular provisions that the court found
were violated, so that the District Court could only extend
P 15 of the Decree, as that was the only provision for which
the court specifically found NJDOC to be non-compliant.
Finally, NJDOC asserts that the District Court made no
findings of changed circumstances that wer e sufficient to
support a modification of the Decree. Although the plaintiffs
contend that NJDOC's non-compliance was such a changed
circumstance, NJDOC rejoins that a court's compliance
enforcing power, not its modification power, is the proper
means for addressing a party's non-compliance. NJDOC
further argues that, even if a party's non-compliance is a
changed circumstance warranting modification, the only
non-compliance by NJDOC that the District found was non-
compliance with P 15, which was not a sufficiently

                               16
significant change in circumstances to warrant
modification.

A. Did the Language of the Decree Give the District
Court the Power to Extend the Decree?

A consent decree is a hybrid of a contract and a court
order. A decree embodies the agr eement of the parties and
as such is in some respects contractual in nature; however,
a decree is also in the form of a judicial order that the
parties expect will be subject to the rules generally
applicable to other judgments and orders. See Rufo v.
Inmates of Suffolk County Jail, 502 U.S. 367, 378 (1992).

1. Standard of Review

We first address a threshold question concerning the
proper standard for our review of the District Court's
construction and interpretation of the Consent Decree.
Because of the hybrid contractual/court order status of a
consent decree, there is some confusion in the courts (and
disagreement among the parties) as to what standard of
review we should apply here. NJDOC states that our review
is simply plenary, and cites to a Seventh Cir cuit case for
support: United States v. Board of Education of Chicago,
717 F.2d 378, 382 (7th Cir. 1983) ("[T]he interpretation of
consent decree provisions, like the interpretation of
contract provisions, is a matter of law and subject to
plenary review on appeal."). As the DOJ points out,
however, immediately after stating that the standard of
review is plenary, Board of Education of Chicago then states
that "[t]he district court's views on interpr etation, however,
are entitled to deference." Id.

Numerous other cases also take this seemingly
contradictory "plenary, but deferential" approach to the
review of a district court's interpretation or construction of
a consent decree. See, e.g., Sault Ste. Marie Tribe of
Chippawa Indians v. Engler, 146 F.3d 367, 371-72 (6th Cir.
1998) (holding that "deferential de novo" is the proper
standard of review for a district court's interpretation its a
consent decree); Goluba v. School Dist. of Ripon, 45 F.3d
1035, 1037-38 & n.5 (7th Cir. 1995) (applying deferential
de novo review to district court's interpr etation of a consent

                               17
decree, and noting further that abuse of discr etion review is
appropriate where "the judge oversaw the consent decree
for an extended period of time and the decree is particularly
complex or intricate"); Officers for Justice v. Civil Serv.
Comm'n, 934 F.2d 1092, 1094 (9th Cir . 1991) (applying
deferential de novo review); Ber ger v. Heckler, 771 F.2d
1556, 1576 n.32 (2d Cir. 1985) (applying deferential de
novo because "few persons are in a better position to
understand the meaning of a consent decree than the
district judge who oversaw and approved it").

This Court, in contrast, has held many times that a
district court's construction and interpretation of a consent
decree is subject to straightforward plenary or de novo
review. See United States v. New Jersey, 194 F.3d 426, 430
(3d Cir. 1999) ("Whether extrinsic evidence is required to
interpret a consent decree is itself a question of law subject
to plenary review."); Harris v. Philadelphia, 137 F.3d 209,
212 (3d Cir. 1998) ("Since consent decr ees have the
attributes of contracts voluntarily undertaken, we exercise
plenary review over a district court's construction of a
consent decree."); Washington Hosp. v. White, 889 F.2d
1294, 1299 (3d Cir. 1989) (stating that the construction of
a court-ordered stipulation, which was"functionally
equivalent to a consent order or consent decr ee, . . . is a
matter of law over which we exercise plenary r eview");
Thermice Corp. v. Viston Corp., 832 F .2d 248, 252 (3d Cir.
1987) (stating that the question of whether extrinsic
evidence is necessary for the interpretation of a consent
decree is a question of law subject to plenary review); Fox
v. United States Dept. of Housing, 680 F .2d 315, 319-20 (3d
Cir. 1982) (same).8
_________________________________________________________________

8. Against this phalanx of authority, ther e is one Third Circuit case
that
can possibly be read as implicitly adopting the deferential de novo
standard for review of a district court's interpretation of a consent
decree. In Halderman v. Pennhurst State School & Hospital, 901 F.2d 311
(3d Cir. 1990), the panel at one point notes that it has plenary review
over the construction of a settlement agreement that is in the manner of
a consent decree, but then states later that, because the district court
had "extensive experience" with the case and the final settlement
agreement between the parties, the district court's conclusions about the
meaning of the agreement's jurisdictional pr ovisions should be given

                               18
We also think that the Third Cir cuit position is the more
reasonable one, because the concept of "deferential de
novo" (or "deferential plenary") r eview seems to be an
oxymoron. Black's Law Dictionary defines"de novo" as
"[a]new, afresh, a second time," and defines "plenary" as
"[f]ull, entire, complete, absolute, per fect, unqualified."
Black's Law Dictionary 392, 1038 (5th ed. 1979). These are,
of course, familiar notions to appellate judges, the sinews of
our everyday work. It strains imagination to conceive how
our review could be both "anew, complete, absolute and
unqualified," while at the very same time defer ential to the
District Court's interpretation. Review that gives deference
to the decision that is under review is simply not absolute
and unqualified review. The courts that apply"deferential
de novo" do not explain how they amalgamate these two
seemingly incompatible standards.9 We decline to follow
_________________________________________________________________

"some deference." Id. at 319 n.11, 320. Halderman cites no Third Circuit
case as support for its decision to give defer ence to the district
court's
construction of the consent decree, but instead cites the Ninth Circuit
case of Keith v. Volpe, 784 F .2d 1457 (9th Cir. 1986).

We read Halderman's statement about deference as a function of the
unique character and long history of the Pennhurst litigation and a nod
to the stewardship, and memorable imprint on that litigation, of the
extraordinary District Judge who handled it, the late Raymond J.
Broderick. See, e.g., 446 F. Supp. 1295 (E.D. Pa. 1977); 533 F. Supp.
661 (E.D. Pa. 1982); 567 F. Supp. 1504 (E.D. Pa. 1983); 610 F. Supp.
1221 (E.D. Pa. 1985), 784 F. Supp 215 (E.D. Pa. 1992). We do not think
that the panel intended to contravene established Third Circuit case law.
See supra at 21-22. However, to the extent that Halderman is read to be
inconsistent with earlier case law, the earlier case law providing for
straightforward plenary review contr ols. See O. Hommel Co. v. Ferro
Corp., 659 F.2d 340, 354 (3d Cir. 1981) (stating that, according to Third
Circuit Internal Operating Procedur es, one panel cannot overrule a prior
panel precedent, and giving effect to the earlier of two inconsistent
Third
Circuit opinions).

9. The panel in Sault Ste. Marie Tribe of Chippawa Indians v. Engler, 146
F.3d 367 (6th Cir. 1998), recognized the self-contradictory nature of
"deferential de novo" and interpr eted it to mean that the district
court's
interpretation should be used as an additional tool for contract
interpretation. See id. at 371. Of course, this kind of review would be
neither deferential nor de novo: since the district court's interpretation

                               19
these other courts and instead adhere to the long tradition
in this Circuit of reviewing a district court's interpretation
of a consent decree de novo.

2. Whether the Language of the Consent Decr ee Gave
        the District Court the Power to Extend the Decr ee

As noted above, the District Court at the July 7 hearing
explained how it interpreted the language of the Consent
Decree as giving the court the power to extend the Decree.
The sections that the court used in its analysis pr ovide:

        General Injunctive Relief

         3. The State defendants and their employees,
        consistent with their obligations under curr ent law,
        shall not engage in any act or practice that has the
        purpose or effect of unlawfully discriminating against
        any employee in the NJDOC in any term or condition
        of employment because of such employee's race (black)
        or sex (female), including, but not limited to, cr eating,
        maintaining, supporting or condoning a racially or
        sexually hostile work environment.

         * * * *

         59. . . . . Any dispute within the scope of this Decree
        which, in the reasonable opinion of counsel, cannot be
        effectively resolved through the pr ocedures set forth in
        this Decree, may be brought to the attention of Judge
        Pisano, provided that prior thereto counsel have
        conferred and have engaged in good faith ef forts to
        resolve it.

         * * * *

        Jurisdiction of the Court

         63. This Court shall retain jurisdiction of the matters
        covered by this Decree for a period of four (4) years
_________________________________________________________________

would merely be one more interpretive tool among many, the
interpretation would not be accorded deference, but the review would not
be de novo either, because it would accommodate the interpretation of
the lower court in some fashion. Thus, Sault Ste. Marie's "deferential de
novo" review is simply a misleading name for some level of review
between deferential and de novo--in r eality, a hodgepodge standard.

                                20
        from the date of entry of this Decree for such action as
        may be necessary or appropriate to effectuate the
        purposes of this Decree. The provisions of this Decree
        shall be in effect for a period of four (4) years from the
        date of entry of this Decree, at which time all
        obligations under this Decree shall end.

         64. Any party may seek to modify the pr ocedures
        enumerated in this Decree, provided that the proposed
        modifications effectuate the purposes of this Decree.10

The court began its analysis by noting that P 3 of the
Decree, entitled "General Injunctive Relief," broadly
prohibits NJDOC from engaging in any unlawful racial or
gender employment discrimination; the court interpr eted
this section as meaning that one of the purposes of the
Decree was to empower the court to provide broad
injunctive relief in response to any discriminatory activity
by NJDOC, thus giving the court the power to extend the
Decree if necessary to prevent discrimination by NJDOC.
The District Court observed that P 63 of the Decree gives
the court jurisdiction over matters covered by the Decree
for four years, and that P 59 provides that disputes that
cannot be resolved by the parties on their own can be
brought to the District Court for resolution. The court then
concluded that

        I find in order to effectuate the purposes of this Decree,
        that I needed to extend it for a period of time, and the
        order extending the Decree was made within the four
        years of its initial term of existence. So, Ifind that
        there is language in the Decree itself, if a Court were to
        consider this as a matter of contract interpr etation or
        enforcement of a settlement agreement, to more than
        justify the Court's extension.

In sum, the District Court concluded that the first sentence
of P 63 and the whole of P 64 gave it the power to extend
the Decree in order to effectuate the substance of P 3 or
resolve a dispute under the guidelines of P 59, as long as
the court ordered such an extension within the four year
period of jurisdiction provided by P 63.
_________________________________________________________________

10. All the parties understand the term"Any party" here to include the
District Court.

                               21
NJDOC responds that the language of the Decr ee,
specifically the second sentence of P 63 ("the previous shall
be in effect for a period of four years . . . at which time all
obligations under this Decree shall end"), clearly and
unambiguously establishes that both the District Court's
jurisdiction and NJDOC's obligations under the Decree end
four years after the Decree is entered, i.e., May 10, 2000. It
submits that, because there is no provision in the rest of
the Decree that specifically allows the District Court to
extend its jurisdiction, the court lacked such power under
the express terms of the Decree. NJDOC argues further
that P 64 reserved to the court only a limited right "to
modify the procedures enumerated in the Decree", and that
no power to modify non-procedural aspects was given to the
court; in its view, the length of time of the Decr ee is clearly
a non-procedural element of the Decree. Therefore, NJDOC
contends, its obligations under the Decree ter minated on
May 10, 2000, and the Decree did not expr essly grant the
District Court any power to modify this provision.11
_________________________________________________________________

11. NJDOC also argues that, if we conclude that P 63 is ambiguous
regarding whether the District Court has the power to modify the Decree
by extending it, extrinsic evidence from the negotiations over the
language of the Decree supports NJDOC's r eading. During these
negotiations, the DOJ originally proposed afive year period for the
Decree, with the following proviso: "This period may be extended by the
order of this Court for good cause shown." NJDOC countered with the
following: "The provisions of this decr ee shall be in effect for a period
of
two years from the date of the entry of this decree, at which time all
obligations under this decree shall end." NJDOC contends, quite
forcefully, that, because the Decree asfinally agreed upon did not
contain the extension for good cause language, we should conclude that
the parties intended to omit the court's power to extend for good cause
from the Decree.

Class counsel counters that the "good cause" language may have been
omitted because it was redundant, not because the parties decided to
omit this power from the Decree. W e find this argument lacking in merit.
No other part of the Decree clearly gives the District Court power to
extend the Decree for good cause, and it seems quite unlikely that
parties would strike out clear language because it was redundant of
other, unclear language. Class counsel contends that the parties may
have considered the language redundant of the District Court's inherent
equitable power to modify a decree. If that was the case, however, the

                               22
Class counsel and the DOJ reply with thr ee arguments.
First, they assert that we should apply "defer ential de novo"
review to the District Court's interpretation of the Consent
Decree; we have already explained above why we reject this
contention. Second, the plaintiffs contend that the first
sentence of P 63, which provides that the District Court has
jurisdiction to take "such action as may be necessary or
appropriate to effectuate the purposes of this Decree," was
broad enough to empower the court to extend the Decree in
response to violations and delays in implementing the
provisions of the Decree that threatened to undermine
attainment of the Decree's purposes. The District Court's
summary of the Decree's purposes is set forth in the margin.12

Third, plaintiffs rely on P 64, which provides that the
District Court may "modify the procedur es enumerated in
this Decree, provided that the proposed modifications
effectuate the purposes of this Decree." Plaintiffs submit
that the extension of the Decree is not a modification of the
parties' substantive duties under the Decree, but is simply
a modification of the amount of time that they ar e subject
to these duties. The plaintiffs add that four previous
modifications of time limits under the Decr ee have been
effected under the procedural modification provision in
P 64, and thus urge that this pr ovision gives the District
_________________________________________________________________

court extended the Decree based on this equitable power rather than
upon an express Decree provision; we address this basis for the Decree
extension in Section II.B. infra. At all events, while NJDOC has the
better
part of this argument, and its extrinsic evidence provides some support
for its interpretation of the Decree, we need not resort to this extrinsic
evidence, because we conclude that the Decree's express terms do not
give the District Court the power to extend the Decr ee.

12. The District Court summarized the purposes of the Consent Decree
in its May 10, 1996, Order and opinion appr oving the Decree:

         [T]o completely overhaul the NJDOC's current practices in handling
         complaints of racial and sexual discrimination and any resultant
         retaliation; to ensure that supervisors and employees who
         discriminate, harass, or retaliate against complainants receive
         appropriate discipline; and to alleviate the hostile work
environment
         that is alleged to pervade the NJDOC by providing extensive
training
         for all supervisors and employees.

                                23
Court the power to extend the time limit of the Decr ee
itself.

We are not persuaded by the plaintif fs' arguments. The
clear language of P 63 states that the Decr ee ends after four
years. The plaintiffs' arguments, considered together, at
most show that the first sentence of P 63 and P 64 may
imply that the District Court has the power to extend the
Decree under the Decree's terms. However, the clear
language of the second sentence of P 63, explicitly limiting
the Decree time period to four years while not providing any
express means for the District Court to extend this time
period, see supra note 11, trumps this possible implication
of the first sentence of P 63 and P 64.

A court should interpret a consent decr ee as written and
should not impose terms when the parties did not agree to
those terms. See Halderman v. Pennhurst State Sch. &
Hosp., 901 F.2d 311, 319 (3d Cir. 1990). Interpreting the
Decree as expressly giving the District Court the power to
extend the Decree beyond its four year ter m flies in the face
of the clear language of P 63. Further more, we are
convinced that the extension of the Decree beyond its four
year term, rather than being a mere pr ocedural
modification covered by P 64, ef fects a modification of
NJDOC's substantive duties under the Decree, for the
amount of time that NJDOC is subject to the Decr ee
provisions is a substantive element of the Decr ee. We thus
defer to the clear language of P 63 and hold that the
language of the Decree cannot be used to justify the
District Court's extension.

B. Did the District Court Properly Extend the Decree via
an Exercise of its Own Inherent Equitable Powers?

1.

The District Court also based the Decree extension on: (1)
its inherent power to enforce compliance with its consent
decrees; and (2) its inherent power to modify consent
decrees. We review a district court's orders to enforce
compliance with or to modify a consent decree for abuse of
discretion. See EEOC v. Local 580, 925 F.2d 588, 594-95

                                24
(2d Cir. 1991); Delaware V alley Citizens' Council for Clean
Air v. Pennsylvania, 674 F.2d 976, 978 (3d Cir. 1982).
However, the District Court's conclusions about the scope
of its inherent powers is a question of law that is reviewed
de novo. See Daniel S. v. Scranton Sch. Dist. , 230 F.3d 90,
97 (3d Cir. 2000) (stating that questions of law are reviewed
de novo).

As we noted at the outset, there is no doubt that the
District Court possesses these two powers. See Spallone v.
United States, 493 U.S. 265, 276 (1990) ("[C]ourts have
inherent power to enforce compliance with their lawful
orders . . . .") (internal quotations and citation omitted);
United States v. United Shoe Mach. Corp., 391 U.S. 244,
248-49 (1968) (holding that a court can modify a consent
decree "upon an appropriate showing" of "the specific facts
and circumstances" in the particular case); Delaware Valley
Citizens' Council for Clean Air, 674 F.2d at 980 (stating that
a provision in a consent decree that gave the court the
power to modify the decree "is merely declaratory of a
district court's inherent power to modify a consent decree,
even over the objection of one of the parties"). Because the
District Court seems to have concluded that it had the
power to extend the Decree as an exercise of either its
compliance enforcement or modification power , we begin
our analysis by considering the extent of these two powers.13
_________________________________________________________________

13. We note that previous cases have not expressly bifurcated the
doctrine between the modification and compliance enforcement powers
in the manner that we do here. Rather, the cases have addressed either
just the modification power or just the compliance enforcement power,
and thus had no occasion for an overview. We are satisfied, however,
that an examination of the relevant case law supports our approach, as
there are distinct bodies of jurisprudence and different standards
associated with the compliance enforcement and modification powers.
Compare Spallone v. United States, 493 U.S. 265 (1990), and Shillitani v.
United States, 384 U.S. 364 (1966) (addr essing courts' compliance
enforcement power) with Rufo v. Inmates of Suffolk County Jail, 502 U.S.
367 (1992), and United States v. United Shoe Mach. Corp., 391 U.S. 244
(1968) (addressing courts' modification power). Furthermore, we believe
that clearly differentiating between the modification and compliance
enforcement powers would serve to clarify the law and facilitate district
courts' proper exercise of these powers.

                               25
It is well-settled that a court has broad equitable power
to fashion a remedy while modifying a consent decree, and
has similarly broad equitable power when enfor cing
compliance with a decree if the decree is aimed at
remedying discrimination, as is the Consent Decree in the
case at bar. See Rufo v. Inmates of Suf folk County Jail, 502
U.S. 367, 381 & n.6 (1992) (recognizing that a court's
modification power "is long-established, br oad, and
flexible," and that a court should apply "aflexible
modification standard in institutional r eform litigation")
(internal quotes and citation omitted); Spallone, 493 U.S. at
276 ("When a district court's [compliance enforcement]
order is necessary to remedy past discrimination, the court
has an additional basis for the exercise of br oad equitable
powers.").

Furthermore, the broad remedial power contained within
the modification and compliance enforcement powers can
be used to extend a consent decree.14 See Chrysler Corp. v.
_________________________________________________________________

14. In certain places in its brief, NJDOC seems to argue that a court can
exercise the compliance enforcement power only via its contempt power,
and that because the District Court never held NJDOC in contempt, its
use of the compliance power was illegitimate. This argument is
unavailing for several reasons. First, in support of its claim NJDOC
quotes the following sentence from Spallone , 493 U.S. at 276: "[C]ourts
have inherent power to enforce compliance with their lawful orders
through civil contempt." Of course, this sentence does not state that
courts can enforce compliance only thr ough civil contempt, but that they
can enforce compliance via contempt. Furthermore, NJDOC omits the
sentence that immediately follows the above quote fr om Spallone: "When
a district court's order is necessary to r emedy past discrimination, the
court has an additional basis for the exercise of broad equitable powers,"
id., which implies that a court has expansive powers that go beyond its
contempt power when it is remedying past discrimination, as is the
situation in the case before us. Second, ther e is case law that directly
and clearly contradicts NJDOC's claim that a court can exercise its
compliance enforcement power only via its contempt power. In Berger v.
Heckler, 771 F.2d 1556 (2d Cir. 1985), the Second Circuit stated that
"[e]nsuring compliance with a prior or der is an equitable goal which a
court is empowered to pursue even absent afinding of contempt." Id. at
1569 (citing Alexander v. Hill, 707 F .2d 780, 783 (4th Cir. 1983))
(emphasis added); see also Halderman v. Pennhurst State Sch. & Hosp.,
901 F.2d 311, 316 & n.5 (3d Cir. 1990) (affirming the district court's

                               26
United States, 316 U.S. 556 (1942) (affir ming the extension
of a consent decree via the district court's exercise of its
modification power);15 United States v. Local 359, United
Seafood Workers, 55 F.3d 64, 69 (2d Cir. 1995) (holding
that "it was well within the district court's inherent power"
to extend parts of a consent judgment decree as an exercise
of the court's compliance enforcement power). However,
because a court's compliance enforcement power is "not
unlimited," Spallone, 493 U.S. at 276, a court may use its
compliance enforcement power to extend one or more
provisions of a decree only if such compliance enforcement
is essential to remedy the violation and thus provide the
parties with the relief originally bargained for in the consent
order. As the Second Circuit noted in Local 359, "[u]ntil
parties to such an instrument have fulfilled their express
obligations, the court has continuing authority and
discretion--pursuant to its independent, juridical interests
--to ensure compliance." 55 F.3d at 69 (quoting EEOC v.
Local 580, 925 F.2d 588, 593 (2d Cir. 1991)).

A court must abide by similar standards when using its
modification power to extend a decree. In their arguments
on the modification standard, the plaintif fs cite cases from
the Sixth Circuit which seem to adopt a br oader standard
than we think is supported by the Supreme Court
jurisprudence on this issue. In Heath v. De Cour cy, 888
F.2d 1105 (6th Cir. 1989), the court stated that "[t]o modify
[institutional reform] consent decr ees, the court need only
_________________________________________________________________

extension of the term of certain parts of a court-approved settlement
agreement because of non-compliance by defendant; the district court
considered holding defendant in contempt but opted not to). Finally, the
District Court was quite clear that it could have held NJDOC in
contempt for its non-compliance, but it chose not to out of respect for
NJDOC's difficult mission.

15. Although Chrysler involved a consent decree that explicitly gave the
district court jurisdiction to modify the decr ee, the Supreme Court has
held that provisions in a consent decree that give a court the power to
modify the decree are merely declaratory of a district court's inherent
modification power. See United States v. Swift & Co., 286 U.S. 106, 114
(1932); see also Delaware Valley Citizens' Council for Clean Air v.
Pennsylvania, 674 F.2d 976, 980 (3d Cir . 1982).

                               27
identify a defect or deficiency in its original decree which
impedes achieving its goal. . . . A modification will be
upheld if it furthers the original purpose of the decree in a
more efficient way . . . ." Id. at 1110; see also Vanguards of
Cleveland v. City of Cleveland, 23 F.3d 1013, 1018 (6th Cir.
1994) (quoting above language from Heath ). We do not
think, however, that a district court has the power to
modify a decree upon identifying merely a"defect or
deficiency" in the decree or a "mor e efficient way" of
furthering the decree's purpose. We conclude instead that a
district court may modify a consent decree (in response to
a request from a plaintiff) only upon making a finding that
conditions have changed so that the "basic purpose of the
original consent decree" has been "thwart[ed]," Chrysler,
316 U.S. at 562, meaning that "time and experience have
demonstrated" that "the decree has failed to accomplish
th[e] result" that it was "specifically designed to achieve,"
United Shoe, 391 U.S. at 249.16 Merely identifying a more
efficient way of carrying out a decree does not justify a
district court modifying that decree.

Courts have extended a decree or parts of a decree when
a change in circumstances thwarted the basic purpose and
intent of the decree, see Chrysler, 316 U.S. at 562-64,
_________________________________________________________________

16. NJDOC argues that the more r estrictive standard from Rufo v.
Inmates of Suffolk County Jail, 502 U.S. 367 (1992), should be used to
determine whether this Decree can be modified. In Rufo, the Supreme
Court held 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," and a change in factual conditions usually must
"make compliance with the decree substantially more onerous" and must
be unanticipated by the party seeking modification. See id. at 384-85.
Rufo, however, set the standard for cases in which the defendant seeks
to have a decree modified, while in the case at bar it is the plaintiffs
seeking modification. The Supreme Court has set a more rigorous
standard for defendants seeking modification because defendants
usually seek modification "not to achieve the purposes of the provisions
of the decree, but to escape their impact." United States v. United Shoe
Mach. Corp. 391 U.S. 244, 249 (1968); see also United States v. Local
560, 974 F.2d 315, 331-32 & n.9 (3d Cir . 1992) (noting that the United
Shoe standard applies when a plaintif f is seeking modification of a
decree, while Rufo's more restrictive standard applies when a defendant
is seeking modification).

                               28
when there had been "pervasive violations" of the decree by
one party, see Local 359, 55 F.3d at 69, and when one
party was in substantial non-compliance with the decree,
see Halderman v. Pennhurst State Sch. & Hosp. , 901 F.2d
311, 316 (3d Cir. 1990); Pennsylvania v. Local Union 542,
807 F.2d 330 (3d Cir. 1986).

2.

Even if a court has the power to modify or enfor ce
compliance with a consent decree, it must support its
issuance of such an order with specific findings of fact. See
Hughes v. United States, 342 U.S. 353, 357-58 (1952)
(holding that an adequate hearing and findings of fact are
required for exercise of modification power); Harris v. City
of Philadelphia, 137 F.3d 209, 213-14 (3d Cir. 1998)
(holding that the district court's expansion of a consent
decree could not be interpreted as a pr oper exercise of the
court's compliance enforcement power because nofinding
had been made of the party's lack of compliance);
Pennsylvania v. Local Union 542, 807 F.2d 330, 332, 335,
338-39 (3d Cir. 1986) (upholding district court's two-year
extension of a consent decree because district court's clear
and detailed factual findings showed that the party's non-
compliance frustrated the purposes of the decr ee).

The determination of whether the District Court
appropriately exercised its modification or compliance
enforcement power in extending the Decr ee in this case
turns on whether the District Court corr ectly conceived the
limits of its authority and made adequate legal conclusions
and factual findings to support its exercise of one of these
powers. More specifically, the key issue is whether the
District Court clearly specified a proper legal basis for its
extension of the Decree, and then either made adequate
findings of non-compliance by NJDOC to justify extending
the entire Decree for ten months, or made adequate
findings of changed circumstances to justify modifying the
Decree by extending it.

The District Court vacillated over whether it was using
the compliance enforcement or the modification power to
extend the Decree; the court seems to have (implicitly)

                               29
concluded that it was justified in using either power, or
perhaps some combination of the two. See Tr. of July 7,
2000 hearing at 29-32. We conclude that the District
Court's findings of fact were insufficient to justify its use of
either the modification or the compliance enfor cement
powers. The only finding that the District Court made with
any specificity was the finding in the May 10 Or der that
NJDOC was not in substantial compliance with P 15 of the
Consent Decree: "[U]ntil approximately the first quarter of
2000 the State [of New Jersey] was not in substantial
compliance with the consent decree, principally in
connection with its obligation to issue timely decisions
regarding discrimination complaints." Beyond this finding,
the District Court merely noted certain "issues,"
"problems," and "disputes" that had arisen between the
parties during the course of the four year Decr ee, and
reasoned that there was "enough of a r ecord made on
issues other than the timing of the EED decisions" to justify
the extension of the entire Decree.

The District Court did not make any specific findings of
fact regarding these "issues" in the May 10 and July 25
Orders or at the May 8 and July 7 hearings. The court
declined to make such findings even after the plaintiffs,
realizing that the court's factual findings were likely
insufficient to support the extension of the entir e Decree,
moved the court for specific findings of non-compliance by
NJDOC following the issuance of the May 10 Or der.
Instead, in an exercise of inchoate incorporation by
reference in its July 25 Memorandum, the District Court
pointed to "the transcripts of several hearings held over the
past year" as sufficient factual findings to support its
extension of the Decree. The District Court also noted that
the plaintiffs had "raised a claim of discriminatory
discipline" by NJDOC, and concluded that this too required
it to extend the Decree. Significantly, however, the court did
not find that NJDOC had engaged in discriminatory
discipline, but only observed that the plaintif fs had claimed
that NJDOC had done so.

These "findings"--oblique references to unspecified
sections of hearing transcripts compiled over the course of
a year, and taking notice of an allegation made by the

                               30
plaintiffs--are not sufficient to support the District Court's
extension of the entire Decree as an exer cise of either its
compliance enforcement or its modification power. First, an
unadjudicated allegation by one party is not a pr oper basis
for extending a consent decree. Second, the court's
references to problems with the Decr ee (other than with
P 15) that arose in hearings "held over the past year" are
random and unspecific, and would requir e us to rummage
through the record to determine exactly what these findings
are. But a Court of Appeals should not be r equired to scour
the District Court's records and transcripts, without
specific guidance, in order to construct specific findings of
fact that support the District Court's Order; rather, the
District Court should make specific findings in the first
place to facilitate proper appellate review. See Mayo v.
Lakeland Highlands Canning Co., 309 U.S. 310, 317 (1940);
Bradley v. Pittsburgh Bd. of Educ., 910 F .2d 1172, 1178 (3d
Cir. 1990).

Thus, the District Court's extension of the Decr ee cannot
be justified as a proper exercise of the court's modification
power under the rule set out in Chrysler Corp. v. United
States, 316 U.S. 556, 562 (1942), and United States v.
United Shoe Machinery Corp., 391 U.S. 244, 249 (1968),
because the court did not make a finding of changed
circumstances that thwarted the basic purpose behind the
Decree such that the Decree failed to accomplish its
designed result. Furthermore, the extension of the entire
Decree cannot be justified as a valid exer cise of the court's
compliance enforcement power, because the court's very
limited findings did not show that extending the whole
Decree was necessary to remedy the violation and thus
provide the parties with what they originally bargained for.

There may have been various breaches of the Consent
Decree by NJDOC that would support the extension of
other sections or even the entire Decree, but we are not in
a position to discern that from the r ecord before us. The
District Court is intimately familiar with the cir cumstances
surrounding the Consent Decree as well as the actions of
the parties with respect to their compliance with that
Decree, and it is therefore for that court to make specific
findings in these areas if it decides to extend the Decree.

                               31
See EEOC v. Local 580, 925 F.2d 588, 594-95 (2d Cir.
1991) (upholding district court's orders enfor cing
compliance with a consent decree because district court
recounted in detail relevant portions of the history of the
litigation, thereby establishing a specific factual record of
the party's non-compliance with the decree). Because the
District Court failed to make such specific findings, we
must vacate its order extending the Decr ee and remand the
case to that court for such further findings of fact.

As we noted earlier, the District Court did make a specific
finding that NJDOC was in substantial non-compliance
with P 15 of the Decree. This finding would be sufficient to
support an extension of that section of the Decr ee, along
with any other section that is necessary for r emedying this
non-compliance with P 15, but this extension would have to
be limited to only those sections. Cf. Halder man v.
Pennhurst State Sch. & Hosp., 901 F.2d 311 (3d Cir. 1990)
(affirming district court's extension of certain specific
provisions of a consent decree beyond the original deadline
for these provisions contained within the decr ee in order to
remedy the defendants' non-compliance after district court
made specific findings that the defendants wer e not in
substantial compliance with these decree sections); United
States v. Local 359, United Seafood Workers , 55 F.3d 64 (2d
Cir. 1995) (affirming the district court's extension of a
specific aspect of a consent decree--the term of an
administrator appointed under the terms of the decree--
because that extension was necessary to ensur e compliance
by a non-compliant party). Although the District Court's
"interest in protecting the integrity of such a decree justifies
any reasonable action taken by the court to secure
compliance," Local 359, 55 F.3d at 69 (internal quotations
and citations omitted), the court's extension of the entire
Decree based on NJDOC's non-compliance with only one
minor part of it would not be reasonable, especially in light
of the Supreme Court's admonition that a court's
compliance enforcement power is "not unlimited." Spallone
v. United States, 493 U.S. 265, 276 (1990).

On remand, the District Court should be clear as to
which inherent power--compliance enfor cement or
modification--it is using as the basis for extending the

                               32
Decree. From what we can glean from the District Court's
incomplete findings, the facts of this case seem to fit more
closely with an exercise of the court's compliance
enforcement power, as the extension of the Decree here
seems most accurately described as an order r emedying a
party's non-compliance rather than a modification in
response to changed circumstances.

The plaintiffs counter that NJDOC's non-compliance is a
"change in circumstances" from those in place when the
Decree was entered into, and the court's exercise of its
modification power was justified because this non-
compliance thwarted the "basic purpose" of the Decree and
the Decree has thereby "failed to accomplish" its intended
result. See Chrysler Corp. v. United States , 316 U.S. 556,
562 (1942); United States v. United Shoe Mach. Corp., 391
U.S. 244, 249 (1968); see also Akers v. Ohio Dep't of Liquor
Control, 902 F.2d 477 (6th Cir . 1990) (holding that it was
an abuse of discretion for the district court to refuse to
modify a consent decree by extending it when the parties
originally intended to provide for four years of reports on
compliance with the decree and the district court's nearly
four-year stay of the decree's reporting requirement
thwarted this basic purpose). We think, however, that the
plaintiffs' approach would in effect lead to the modification
power swallowing the compliance enforcement power--every
act of non-compliance would also be a changed
circumstance, potentially justifying modification. This
approach was rejected by the Seventh Cir cuit in South v.
Rowe, 759 F.2d 610 (7th Cir. 1985), where the court held
that a party's violation of a consent decree did not
constitute an extraordinary or unforeseeable changed
circumstance, so modification of the decr ee was not
appropriate in response to such non-compliance. See id. at
614. Because there are distinct bodies of jurisprudence and
different standards associated with the compliance
enforcement and modification powers, we believe that a
district court should relegate these powers to their
respective spheres. See supra note 13. That is, a district
court should use its compliance enforcement power when a
party to a decree violates the decree, and use its
modification power when circumstances surr ounding the

                               33
decree (other than the parties' actions) ar e sufficiently
changed.17

If the District Court decides on remand to use its
compliance enforcement power to extend the Decr ee, the
court must make specific findings regar ding the exact
Decree sections with which NJDOC failed to comply, and
must determine which sections of the Decr ee must be
extended to remedy this non-compliance and thus provide
the parties with the relief that was originally bargained for
in the Decree. See Halderman, 901 F.2d at 316, 321-25;
Local 359, 55 F.3d at 69. On the other hand, if the court
decides to use its modification power to extend the decree,
it must make specific findings on how changed
circumstances (which would not include NJDOC's non-
compliance simpliciter) have stymied the objectives the
parties intended to achieve with the Decree. See Chrysler,
316 U.S. at 562; United Shoe, 391 U.S. at 249. Specifically,
the court should apply the standard for plaintiff-requested
decree modification that, as we noted earlier , is set forth in
Chrysler and United Shoe: a court can modify a consent
decree "in adaption to changed circumstances" if "time and
_________________________________________________________________

17. There is a Third Circuit case that seems at first glance to have
implicitly accepted the use of the modification power to remedy a party's
non-compliance. In Pennsylvania v. Local Union 542, 807 F.2d 330 (3d
Cir. 1986), we affirmed the district court's modification of an injunctive
decree (which extended the decree for two years) even though the district
court modified the decree because of defendant's non-compliance.
However, the issue of whether it was pr oper to modify the decree in
response to non-compliance was not befor e us in Local Union 542, as we
expressly noted that the non-compliant party did not challenge the
district court's power to modify the decree. See id. at 334.

In a sense, our distinguishing of the modification and compliance
enforcement powers is arguably a mer e exercise in semantics, as a
court's use of its compliance enforcement power to extend a consent
decree seems on its face to be a modification of the decree's terms. But
because of the different standards and bodies of jurisprudence
associated with these two powers, we think it is important to keep these
powers distinct. There are situations in which the application of these
different standards would lead to different outcomes (e.g., a court's
order
may meet the standard for a proper exer cise of the court's modification
power but not meet the standard for the compliance enforcement power),
so jurisprudential concerns mandate the separation of these powers.

                                34
experience have demonstrated" that "the decr ee has failed
to accomplish" its objectives. United Shoe , 391 U.S. at 248-
49; see also Pennsylvania v. Local Union 542, 807 F.2d 330,
334 (3d Cir. 1986) (citing United Shoe as the applicable
standard for district court's modification of consent decree
when the plaintiff seeks to have decree modified because
the decree has not achieved the intended r esult).

Furthermore, if the District Court uses its modification
power to extend the Decree, then the court should tailor the
modification to account for the changed cir cumstances and
to achieve the original Decree objectives. See United Shoe,
391 U.S. at 252 ("[T]he District Court should modify the
decree so as to achieve the requir ed result . . . ."); United
States v. Local 560, 974 F.2d 315, 333 (3d Cir. 1992)
(holding that district court should modify decr ee to the
extent that such a modification "is necessary to accomplish
the remedy sought by the original equitable decree"); see
also Rufo v. Inmates of Suffolk County Jail , 502 U.S. 367,
391 (1992) (holding that, if a decree modification is found
to be warranted, the district court should then make sure
that the modification is "tailored to r esolve the problems
created by the change in circumstances").

In sum, the District Court must make specificfindings to
support its extension of the Consent Decree, and it must
tailor this extension to fit with these findings. Given the
record before us, we believe that an extension in this case
would likely involve an exercise of the District Court's
compliance enforcement power, but of course the court
must itself decide which of the two powers is implicated by
the specific findings it will make.18
_________________________________________________________________

18. The plaintiffs' cross-appeal can be dealt with summarily. First, class
counsel argues that the District Court's denial of the plaintiffs' motion
to
hold NJDOC in contempt was based on an error of law and unsupported
factual assumptions. "Our review of the denial of a contempt motion is
for abuse of discretion by the district court. Reversal is appropriate
only
where the denial is based on an error of law or a finding of fact that is
clearly erroneous." Roe v. Operation Rescue, 54 F.3d 133, 137 (3d Cir.
1995) (internal quotations omitted). Class counsel's argument here is
based on an offhand comment that the District Court made in an oral
argument hearing on a contempt motion that is not the one at issue in
this appeal; we find this argument to be completely without merit.

                               35
Conclusion

For the foregoing reasons, the District Court's May 10,
2000 Order extending the entire Consent Decree will be
vacated, and the District Court's July 25, 2000 Or der
denying the plaintiffs' motion for re-ar gument on their
motion for contempt and denying the plaintif f 's motion to
extend the Decree for two years will be affir med. The case
will be remanded to the District Court for further
proceedings consistent with this opinion. Parties to bear
their own costs.

The mandate shall issue forthwith.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

_________________________________________________________________

The plaintiffs' second argument on cr oss-appeal is that the District
Court erred when it only extended the Consent Decree for ten months,
rather than for the two years that the plaintif fs asked for. We review a
district court's decision to modify or to refuse to modify a consent
decree
for abuse of discretion. See Delawar e Valley Citizens' Council for Clean
Air v. Pennsylvania, 674 F.2d 976, 978 (3d Cir. 1982). The plaintiffs
contend that NJDOC's "pervasive pattern of delayed compliance and
downright non-compliance with the Decree" called for a two year
extension of the Decree, so that the court's ten month extension was an
abuse of discretion. This claim fails because we concluded above that the
District Court did not make sufficient factualfindings of NJDOC's non-
compliance to extend any part of the Decree besides P 15. Because the
District Court's factual findings did not support the extension of the
entire Decree for ten months, the court could not have abused its
discretion by failing to extend the Decr ee for an even longer period of
time.

                               36
