81 F.3d 172
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Bobby BATTLE, et al., Plaintiffs--Appellants,v.Larry FIELDS, Director;  Dan Reynolds, Warden of OklahomaState Penitentiary;  Calvino S. Muse, Chairman of the Boardof Corrections;  Hugh Reed;  William Evans;  Phil Dessauer;Joe R. Manning, Jr.;  Gregory H. Hall;  and Daniel Bintz;All Members of the Oklahoma Board of Corrections, OklahomaBoard of Corrections, Defendants--Appellees.UNITED STATES of America, Plaintiff--Intervenor.BOBBY BATTLE, et al., Plaintiffs--Appellants,UNITED STATES of America, Plaintiff-Intervenor--Appellant,v.Larry FIELDS, Director;  Dan Reynolds, Warden of OklahomaState Penitentiary;  Calvino S. Muse, Chairman of the Boardof Corrections;  Hugh Reed;  William Evans;  Phil Dessauer;Joe R. Manning, Jr.;  Gregory H. Hall;  and Daniel Bintz;All Members of the Oklahoma Board of Corrections, OklahomaBoard of Corrections, Defendants--Appellees.
No. 95-7164.
United States Court of Appeals, Tenth Circuit.
March 29, 1996.

Before ANDERSON, TACHA, and EBEL, Circuit Judges.


1
ORDER AND JUDGMENT*


2
On October 28, 1994, the plaintiffs filed a motion to enforce certain injunctions previously entered in this case.   On November 17, 1994, the district court issued an order denying the motion, and sua sponte dissolving the injunctions and dismissing the case, except for the Fourteenth Amendment segregation issue originally remanded by this court in 1986.


3
We subsequently vacated the district court's order and remanded the case with instructions to conduct an evidentiary hearing on the plaintiffs' motion and on the issue of dissolution.   Battle v. Fields, No. 94-7175 (10th Cir.  June 27, 1995), Appellants' App.  Vol. III, Tab 18.   The defendants thereafter filed a motion to terminate the case.   The district court then directed the parties to present arguments in writing addressing the following question:  "[W]hy shouldn't all of the existing injunctions be dissolved as a matter of law in light of ... this Court's finding[ ] of compliance in 1983, and the Tenth Circuit affirming of that finding in 1986."   Appellants' App.  Vol. III, Tab 19, at 5-6.   After the parties briefed that issue, the district court determined that "[t]o resolve this legal issue, ... oral argument and an evidentiary hearing are unnecessary."   Battle v. Anderson, No. 72-095-C, slip op. at 1 (E.D.Okla. Nov. 15, 1995), Appellants' App.  Vol. III, Tab 26.   The court then proceeded to enter an order on November 15, 1995, readopting its previous conclusions and once again dissolving the injunctions and dismissing the case.   With respect to the matter of an evidentiary hearing, the court reasoned as follows:


4
If this court conducted further evidentiary hearings in accordance with the prior injunctions, the proceedings would necessarily require a retrial of the original case, based on present conditions, but using outdated standards.   It is inconceivable that such a hearing would be of any value, although it would indeed be time consuming and expensive.


5
....


6
If this court is required to conduct further evidentiary hearings, modification of the prior injunctions will be necessary to comport with existing caselaw....  [A]ny further evidentiary hearing without using present constitutional standards would be futile and encompass hours of unnecessary discovery and testimony.


7
Id. at 2-3.


8
At the plaintiffs' request, we stayed the district court's order pending appeal.   The plaintiffs and the United States, as plaintiff-intervenor, filed separate notices of appeal, which we have consolidated.


9
As a threshold matter, we reject the argument advanced by the defendants that, in substance, this case was concluded in 1983.   It is too late in the day in this litigation to dispute the existence and vitality of injunctions affecting the parties.   Indeed, the district court's November 17, 1994, and November 15, 1995, orders specifically address the dissolution of such injunctions.   Additionally, we have previously affirmed the district court's continuing jurisdiction over this litigation and have explicitly recognized the continuing viability of the injunctions entered by the court.  See Battle v. Anderson, 788 F.2d 1421, 1428 n. 5 (10th Cir.1986) ("[I]t is unmistak[a]bly clear that the orders and injunctions protecting the inmates against constitutional violations ... remain in full force and effect.");  Battle v. Anderson, 708 F.2d 1523, 1538-39 n. 4 (10th Cir.1983) ("If an injunction is to be effective, a court must retain continuing jurisdiction to enforce ... the terms of its orders.   The court cannot be divested of jurisdiction by temporary compliance with the injunction.")  (citations omitted), cert. dismissed, 465 U.S. 1014 (1984).   And, as already indicated, most recently we remanded the case to the district court with express directions to hold a hearing on the plaintiffs' enforcement motion and on the potential dissolution of the injunctions.   See Appellants' App.  Vol. III, Tab 18, at 2.


10
Regarding the procedural posture of the case, we respectfully disagree with the district court's conclusion that changed legal standards make an evidentiary hearing futile and unnecessary.   In a case like this the validity of the parties' allegations and the propriety of dissolving the injunctions and dismissing the case cannot be properly determined without an evidentiary hearing.  See Battle, 708 F.2d at 1539 (The district court " 'is the only court equipped to test evidentiary compliance and the only forum in which to raise any allegations of continuing deficiencies.' ")  (quoting Finney v. Arkansas Board of Correction, 505 F.2d 194, 215 (8th Cir.1974)).   To the extent changed legal standards apply, one of the major purposes of a factual presentation is to establish on a point by point basis how such standards do or do not affect the existing injunctions.   The resulting analysis and disposition by the court will be directed to a relevant factual record.   The evidence, together with the findings and conclusions of the district court, will then provide the record necessary for appellate review.   It is the absence of such a record that prompted our remand in the first place.


11
Accordingly, we again vacate the district court's order and remand this case for a full and fair evidentiary hearing on the plaintiffs' motion to enforce the injunctions and on the defendants' motion, filed since our last remand, to dissolve the injunctions and dismiss the case.  Cf. Battle v. Anderson, 594 F.2d 786, 789 (10th Cir.1979) (remanding for further evidentiary hearings on defendants' compliance with court's prior orders).   Obviously, that hearing will be limited to the issues raised by the parties' filings and cannot be used by the plaintiffs to expand the present case or, in effect, bring a new action.   We of course express no opinion on the merits of the parties' motions or any other matter pending before the district court in this case.


12
Finally, we reluctantly conclude that on remand this case must be assigned to a new judge.   The experienced district judge who has handled this case to date has done so with the utmost competence and professionalism.   There is no question that the judge has and would continue to treat the parties with scrupulous fairness.   However, the very basis for the court's order now on appeal is that an evidentiary hearing will be futile, and its conclusion is foregone.   The appearance, not the fact, of bias arising from this reasoning would color future proceedings.   The case may be reassigned on remand in accordance with the applicable local rules of the district court.


13
Accordingly, for the reasons stated above, the order of the district court is VACATED, and the case is REMANDED for further proceedings before a different judge.



*
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.   The court generally disfavors the citation of orders and judgments;  nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.  R. 36.3


