                               In the

     United States Court of Appeals
                 For the Seventh Circuit
                     ____________________

No. 10-2746
JIMMY DOE, et al., on behalf of a class of detainees,
                                              Plaintiffs-Appellees,

                                 v.

COOK COUNTY, ILLINOIS, and SUPERINTENDENT, COOK COUNTY
JUVENILE TEMPORARY DETENTION CENTER,
                                     Defendants-Appellees.
Appeal of:

   TEAMSTERS LOCAL UNION NO. 700,
                                                           Intervenor.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
           No. 99 C 3945 — James F. Holderman, Judge.
                     ____________________

   ARGUED FEBRUARY 17, 2011 — DECIDED AUGUST 17, 2015
                ____________________

   Before EASTERBROOK, RIPPLE, and TINDER, Circuit Judges.
   EASTERBROOK, Circuit Judge. This suit began in 1999, when
a group of detainees at the Cook County Juvenile Temporary
Detention Center, which houses juvenile suspects awaiting
2                                                 No. 10-2746

trial, contended that some personnel at the Center violated
the federal Constitution by abusing their charges. (Plaintiffs’
status as juveniles justifies the anonymity in the case title.)
Eight years into the suit, which has been certified as a class
action (so the fact that the representative plaintiffs are no
longer at the Center does not make the case moot), the dis-
trict court appointed Earl Dunlap as the Center’s “Transi-
tional Administrator.” We call Dunlap “the Administrator.”
     The court authorized the Administrator to run the Center
in compliance with all state and federal requirements. The
word “Transitional” in the Administrator’s title comes from
the fact that Illinois amended its law in 2007 to move man-
agement of the Center from the domain of the County’s po-
litical branches to the domain of the Circuit Court of Cook
County, in whose Chief Judge state law now vests authority.
55 ILCS 75/3(b) (allowing the Chief Judge to appoint and
remove an administrator to run the Center), 75/3(c) (giving
the Chief Judge direct control over the Center’s budget). The
Administrator was supposed to produce an orderly transi-
tion from the old regime to the new one.
    That took a good deal longer than expected. Section
75/3(b) became effective on January 1, 2008, and required the
Chief Judge to appoint a new head of the Center within 180
days, yet when this case was argued in 2011 the appointment
had yet to be made. We thought that the transition would
happen soon, and we deferred action in the belief that the
dispute might soon become moot. It turned out that the
Chief Judge waited until May 2015 to replace Dunlap: Leon-
ard Dixon was named as the Center’s new Superintendent
effective May 20, 2015, and Dunlap left his post as Adminis-
trator. But this has not resolved the controversy that led to
No. 10-2746                                                   3

this appeal. So it is time for us to act—past time, really, and
the litigants have our apologies for the delay.
    One reason why we thought it appropriate to set this ap-
peal aside for a while is that the original parties were and
remained content with the Administrator’s appointment and
actions. The plaintiffs are satisfied, Cook County is satisfied,
and the Chief Judge of the Circuit Court, though not a for-
mal party, indicated (through a supplemental submission
filed at our request) that he too is satisfied. But employees at
the Center are not satisfied. Their Union (Teamsters Local
700), which represents “direct-care employees” (called “Ju-
venile Detention Counselors” and “Recreation Workers”),
intervened in the district court and is the appellant.
    We postpone a recitation of this litigation’s origination,
settlement, reactivation, re-settlement, and further protests
by the class, which led the district judge to appoint the Ad-
ministrator as part of a third settlement. For now it is best to
explain what led the Union to intervene and appeal, and
how the district court dealt with the Union’s arguments.
    Following a study of the Center’s operations, the Admin-
istrator proposed in October 2009 to reorganize it into five
divisions, each staffed by personnel who in one position
serve the functions of guards, psychologists, and teachers,
and who would have training and educational credentials
superior to the staff then on hand. The Administrator pro-
posed to terminate the employment of the Center’s approx-
imately 225 direct-care employees and require any of them
who wanted to fill the new positions to apply on the same
basis as any outsider would do. The Administrator estimat-
ed that 180 of these 225 would be disqualified at the outset
by the requirement that the workers have bachelor’s degrees,
4                                                    No. 10-2746

and more would be ruled out by a test that all applicants
would be required to pass.
    The district court allowed the Union to intervene to op-
pose the Administrator’s plan. (The Union acts as agent of its
members, who are vitally interested, and has standing in a
representative capacity.) The Union argued that implementa-
tion of the plan would violate several Illinois statutes. Illinois
requires public employers to engage in collective bargaining
with unions, 5 ILCS 315/7, and it requires arbitration if an
employer of “security employees” cannot reach agreement
with their union, 5 ILCS 315/14. The Union contended that
the Administrator was proposing to violate state law by
overriding the bargaining and arbitration statutes, and to
violate the Due Process Clause by overriding the current col-
lective bargaining agreement. For simplicity we put this lat-
ter argument to one side; it is unnecessary to add a constitu-
tional gloss to state-law rights.
    The district court rejected the Union’s position and au-
thorized the Administrator to implement his plan. 2010 U.S.
Dist. LEXIS 63153 (N.D. Ill. June 23, 2010). Citing 5 ILCS
315/4, the judge wrote that collective-bargaining rights must
give way, as a matter of Illinois law, when necessary to effec-
tive management. See Central City Education Association v. Il-
linois Educational Labor Relations Board, 149 Ill. 2d 496 (1992).
The judge did not, however, find that overriding the right to
bargain was essential to solve any constitutional problem at
the Center. To the contrary, the judge conceded that “there
has been no judicial finding that ‘purging the [Center of in-
cumbent workers] is necessary to correct’” any ongoing con-
stitutional violation. 2010 U.S. Dist. LEXIS 63153 at *19. In-
deed, the judge conceded that there has not been a finding
No. 10-2746                                                  5

that any resident of the Center “currently face[s] an ‘ongoing
danger to health and safety [due to] unqualified staff
stay[ing] in their current positions’” (ibid.; emphasis and
brackets in original). Nonetheless, the judge wrote, the Ad-
ministrator had been appointed to clean up a mess, and “the
court finds that the [Administrator’s] need for speed and
flexibility” (id. at *20) trumps other considerations.
    Addressing the Union’s argument that the Administra-
tor’s hiring plan is blocked by 18 U.S.C. §3626, a part of the
Prison Litigation Reform Act (PLRA), given the absence of a
finding that the new plan is necessary to cure an ongoing
violation of federal law, the district court had two responses:
first, that Illinois law has not been violated, and second that
§3626 applies only to district judges and not to court-
appointed administrators. 2010 U.S. Dist. LEXIS 63153 at *27–
28. What the Administrator proposed to do, the court wrote,
is not the kind of “prospective relief” forbidden to a judge.
    The district court denied a motion for a stay, 2010 U.S.
Dist. LEXIS 117086 (N.D. Ill. Nov. 3, 2010), as did a motions
panel of this court, so by the time we heard oral argument
the new system was in place. The judge certified his order as
final under Fed. R. Civ. P. 54(b), see 2010 U.S. Dist. LEXIS
86192 (N.D. Ill. Aug. 23, 2010), a step that everyone has ap-
plauded given the difficulty of determining whether an or-
der such as that approving the Administrator’s plan is one
entering (or declining to modify) an “injunction” for the
purpose of an appeal under 28 U.S.C. §1292(a).
   The Union’s appeal rests largely on the PLRA. Here are
the pertinent parts of §3626:
6                                                             No. 10-2746

    (a) REQUIREMENTS FOR RELIEF.—
        (1) PROSPECTIVE RELIEF.—
              (A) Prospective relief in any civil action with respect to
              prison conditions shall extend no further than neces-
              sary to correct the violation of the Federal right of a
              particular plaintiff or plaintiffs. The court shall not
              grant or approve any prospective relief unless the
              court finds that such relief is narrowly drawn, extends
              no further than necessary to correct the violation of the
              Federal right, and is the least intrusive means neces-
              sary to correct the violation of the Federal right. The
              court shall give substantial weight to any adverse im-
              pact on public safety or the operation of a criminal jus-
              tice system caused by the relief.
              (B) The court shall not order any prospective relief that
              requires or permits a government official to exceed his
              or her authority under State or local law or otherwise
              violates State or local law, unless—
                  (i) Federal law requires such relief to be ordered in
                  violation of State or local law;
                  (ii) the relief is necessary to correct the violation of
                  a Federal right; and
                  (iii) no other relief will correct the violation of the
                  Federal right.
    …
    (c) SETTLEMENTS.—
        (1) CONSENT DECREES.—In any civil action with respect
        to prison conditions, the court shall not enter or approve a
        consent decree unless it complies with the limitations on re-
        lief set forth in subsection (a).
        (2) PRIVATE SETTLEMENT AGREEMENTS.—
              (A) Nothing in this section shall preclude parties from
              entering into a private settlement agreement that does
              not comply with the limitations on relief set forth in
No. 10-2746                                                            7

              subsection (a), if the terms of that agreement are not
              subject to court enforcement other than the reinstate-
              ment of the civil proceeding that the agreement set-
              tled.
   …
   (g) DEFINITIONS.—As used in this section—
       (1) the term “consent decree” means any relief entered by
       the court that is based in whole or in part upon the consent
       or acquiescence of the parties but does not include private
       settlements; …
       (6) the term “private settlement agreement” means an
       agreement entered into among the parties that is not subject
       to judicial enforcement other than the reinstatement of the
       civil proceeding that the agreement settled; …

The Union’s argument is simple. Section 3626(a)(1)(A) and
(B) forbids relief that violates state law and is not “neces-
sary” to solve a violation of federal law—and even then state
law may be overridden only if “no other relief will correct”
that violation. A private settlement agreement may do more,
see §3626(c)(2), but if an agreement is judicially enforcea-
ble—that is, if a violation means anything other than restart-
ing the litigation on the merits—the agreement must be
treated as a “consent decree,” and what a court cannot do by
final order in a contested case it also cannot do by the par-
ties’ consent (that’s the effect of combining §3626(c)(1) and
(2) with §3626(g)(1) and (6)).
    The district judge was unimpressed by this argument be-
cause, he said, it does not invariably violate Illinois law to
allow management to proceed without collective bargaining.
We grant the point but don’t see how state law authorizes
cutting this Union out of decisions about the Center’s staff-
ing.
8                                                     No. 10-2746

    The district court thought that bypassing bargaining (and
eliminating the arbitration that state law requires if the par-
ties can’t agree) would allow the Administrator to reorganize
the Center faster and more effectively. Yet every public em-
ployer could make that kind of argument, all of the time.
There has to be something more to bypass bargaining as a
matter of Illinois law; the delays and frustrations that nor-
mally accompany collective bargaining do not permit an
employer to dispense with the process, irksome as many
employers find it. Illinois courts, and its Labor Relations
Board, regularly reject arguments that a public employer’s
desire to change conditions of employment with dispatch
justifies disregard of bargaining and arbitration require-
ments. See, e.g., Chicago Park District v. Illinois Labor Relations
Board, 354 Ill. App. 3d 595 (2004); Village of Bensenville, 14
PERI ¶2042, 1998 IL LRB LEXIS 43 (I.L.R.B. 1998); Cook County
(Cermak Health Services), 3 PERI ¶3030, 1987 IL LRB LEXIS 78
(I.L.R.B. 1987).
    The “something more” required by Illinois law could in
principle be an ongoing violation of federal law, but the dis-
trict judge was commendably candid: he was not finding any
ongoing violation that the Administrator’s plan would fix
and, indeed, had never found any violation of federal law
(statutory or constitutional). (We’ll come back to the “never”
observation.) The judge found that giving speed and flexibil-
ity to the Administrator would be beneficial, but not that
federal law requires this, and not that every employer’s de-
sire for flexibility trumps bargaining requirements in Illinois.
It follows that Illinois law required collective bargaining and
held out the possibility of interest arbitration.
No. 10-2746                                                   9

    Even if we were to treat the parties’ agreement as giving
the Administrator the power to do what he did, employers
cannot “consent” to dispensing with employees’ rights. See
Kasper v. Board of Election Commissioners, 814 F.2d 332, rehear-
ing denied, 814 F.2d 345 (7th Cir. 1987) (parties can’t accom-
plish through a consent decree something they lack ability to
do by contract). And under §3626(a)(1)(B) the parties, like
the court, must respect state law unless federal law leaves no
other option.
    The district court’s second way around the PLRA was its
conclusion that the judge had not himself required any
change in the Center’s employment practices; all the court
had done was to approve the Administrator’s proposals.
There are several problems with that approach. First, the
Administrator was exercising the court’s authority. Without
the court’s imprimatur, the Administrator has no authority at
all. The court cannot give its appointee any greater power
than the judge himself possesses. If the judge is constrained
by §3626, so is the Administrator. Second, §3626(a) says ex-
actly this. It provides that a “court shall not grant or approve
any prospective relief unless the court finds that such relief
is narrowly drawn, extends no further than necessary to cor-
rect the violation of the Federal right, and is the least intru-
sive means necessary to correct the violation of the Federal
right.” (Emphasis added.) The court approved the Adminis-
trator’s directives, without making the statutory findings.
    Simple enforcement of a consent decree does not require
a new round of findings under §3626. See Jones-El v. Berge,
374 F.3d 541, 545 (7th Cir. 2004). But the Administrator’s de-
cision to fire all of the Center’s direct-care workers, and dis-
place state law, cannot be understood as simple enforcement
10                                                  No. 10-2746

of the order appointing the Administrator. That order, en-
tered in 2007, did not displace state labor law or authorize
any particular management practice. Not until 2010, when
the district court approved the Administrator’s proposal,
was state law superseded. (As we explain below, there was a
brief supersession in 2008, but the district court quickly re-
voked it.) The 2010 order therefore cannot be defended as
nothing but implementation of the 2007 order appointing the
Administrator.
    The dispute in Jones-El concerned an order to install air
conditioning to enforce an earlier decree that had directed
the prison to reduce the temperature in prisoners’ cells. The
prison objected to the new order, even though it also con-
ceded that air conditioning was the only way to comply with
an earlier order whose validity was unquestioned. In our
case, by contrast, firing all of the direct-care workers and hir-
ing replacements, all without regard to state law, was not the
only way to comply. The district judge did not find that the
Administrator’s proposed approach was necessary either to
respect the class’s rights or to manage the Center (as the 2007
order authorized the Administrator to do); the judge found
only that it was efficient. The difference between a step nec-
essarily entailed in implementing an earlier judicial order,
and a selection from among many potential ways of pro-
ceeding, was important to Jones-El and to our decision today.
    But if we accept the premise that in 2010 the district court
just enforced an older consent order, that moves things one
step backward, to the 2007 order appointing the Administra-
tor and setting out his tasks. And the district court did not
say that that order was compelled by any federal law. The
most one can say for the 2007 order is that the district judge
No. 10-2746                                                 11

recited that it complied with the PLRA. The judge did not,
however, make any of the findings that §3626 requires. A
bald declaration of compliance, without the findings re-
quired by statute, is ineffectual under §3626.
    In defending the judgment, the original parties have ar-
gued that the district judge didn’t need to make any findings
in 2010 because he had made them earlier. As we have ob-
served, the judge himself was not of that view. He stated ex-
pressly that he was not finding that there was any ongoing
violation of federal law that needed correction and was not
finding that the Administrator’s new employment proposal
was necessary to correct any earlier violation. 2010 U.S. Dist.
LEXIS 63153 at *19. But for the sake of completeness we take a
brief look at this litigation’s history, to see whether the
judge’s memory might have been deficient.
    The suit was filed in 1999, and the parties started negoti-
ating. The district court did not take any action on the merits
(though it did certify a class). Settlement was reached in
2002, and in December of that year the district court dis-
missed the suit, reserving jurisdiction to enforce the settle-
ment’s terms. (This reservation made the settlement a “con-
sent decree” as defined in §3626(g)(1), as opposed to a “pri-
vate settlement agreement” under §3626(g)(6).) In dismissing
the suit, the judge did not make any finding that the Center
had violated any detainee’s rights or that any of the settle-
ment’s terms was necessary to remedy a violation.
    Nor could either of these findings be inferred from the
act of approving (and promising to enforce) the settlement,
because the settlement papers themselves state that the
agreement is “the result of a compromise and settlement and
is not a determination of liability.” The settlement contained
12                                                 No. 10-2746

standard language denying liability. (For example: “Defend-
ants have denied and continue to deny the allegations con-
tained in Plaintiffs’ Complaint”.) In other words, the defend-
ants did not confess liability, and there was no finding of lia-
bility (or of the need for any given remedy) that the court
could adopt. What is more, the court could not have found
that a new employment arrangement at the Center was nec-
essary to resolve any violation, because the possibility of a
new arrangement was not raised until 2009.
    By late 2005 plaintiffs had grown dissatisfied with the
Center’s performance. They moved to reopen the case and
enforce the settlement. Before the court could act, the parties
reached an amended settlement and an implementation
plan. The two new agreements, like the original, lack a con-
fession of liability. Unlike the 2002 settlement, the 2006
agreements dealt with employment and training by provid-
ing that the Center must reassign any employee found to
have physically abused any detainee, until the employee re-
ceives additional training. The Administrator’s eventual
proposal is substantially different from this clause, because it
extends to all employees, whether or not any given employee
ever abused any detainee, and whether or not that employee
has received additional training.
   In May 2007 the plaintiffs returned to court, asking the
judge to put the Center into receivership and appoint some-
one to run it. By then the state legislature was considering
the bill that would move the Center’s management to the
Circuit Court of Cook County. This led to the idea for a
“Transitional Administrator” to bridge the gap, and with the
parties’ consent (a third settlement) the district court ap-
pointed Dunlap to that position—but without making any
No. 10-2746                                                  13

finding that in 2007 the Center was violating anyone’s feder-
al rights. Instead the judge found that the Center was violat-
ing the terms of the 2002 and 2006 settlements—which were
based on compromise rather than a finding by the court that
anyone’s federal rights had been or were being violated. The
order appointing the Administrator provides that he is “an
agent of this Court” (which is one of the reasons why we
concluded above that the Administrator’s acts are attributed
to the court for the purpose of §3626).
    In mid-2008 the Administrator reported that the Center
was understaffed and needed more than 175 additional em-
ployees quickly in order to improve detainees’ care. The dis-
trict court made a factual finding to that effect—which so far
as we can see is the only factual finding in the case—but did
not conclude that federal law requires additional employees.
The Administrator proposed to hire the new workers by con-
tracts that bypassed the Union and its collective bargaining
agreement. The district judge authorized this, entering an
order “suspend[ing] any and all laws … that require compli-
ance with any provision of the current Collective Bargaining
Agreement”. The judge did not find, however, that super-
seding state law was the least restrictive way to rectify a vio-
lation of federal law; the order did not reference §3626. The
Union protested, and the judge soon revoked the suspension
clause of his order. That put state labor laws back into effect.
The Union effectively promised not to complain about the
new hires, however, if the Administrator respected its mem-
bers’ rights.
   This brings us to October 2009, when the Administrator
proposed to abrogate all of the Union’s rights by firing its
members and hiring a wholly new staff without regard to
14                                                  No. 10-2746

state labor laws or the existing collective bargaining agree-
ment, a process that everyone understood would mean un-
employment for at least 180 of the Union’s members. And, as
we’ve explained, when approving this proposal in June 2010
the judge stated that he was not finding any existing viola-
tion of federal law and was not finding that the restaffing
plan was necessary to correct any violation. The judge de-
nied that the PLRA applied at all to the Administrator’s acts,
but he did not find in 2010 that it has been satisfied if it does
apply.
    The lack of factual findings in this case—both the lack of
findings about the existence of a violation and the absence of
findings about the necessity for a particular remedy to cure
any violation—contrasts with the elaborate findings the dis-
trict court made in Brown v. Plata, 131 S. Ct. 1910 (2011), the
Supreme Court’s only extended consideration of §3626(a)
and (b). The Justices divided five to four about whether even
184 pages of findings and analysis by a district court satis-
fied the statutory burden; the difference from this case could
not be more stark.
    It follows that the order approving the new staffing plan
must be reversed. The plan has been in effect for years, and
restoring the Union’s members to their old positions would
not be possible, because those positions are gone. But other
forms of relief, including financial compensation and prefer-
ential hiring for future openings, may be appropriate, and
we leave that subject to the district court on remand.
   Nothing in this opinion should be read to undermine the
original settlement in 2002 or the follow-up settlements in
2006. The Union has not questioned them (and would lack
standing to do so), and the original litigants remain satisfied.
No. 10-2746                                             15

As we mentioned earlier, the Chief Judge also is satisfied
with the provisions of the 2002 and 2006 settlements (which
the PLRA treats as consent decrees). And the Chief Judge’s
appointment of a new Superintendent for the Center moots
any prospective contest to the Administrator’s 2007 ap-
pointment. The only question we resolve is whether the 2010
order permitting the Administrator to bypass state employ-
ment law (a power not conferred in 2007) complied with
§3626, and we have held that it did not.
   The decision is reversed, and the case is remanded for
proceedings consistent with this opinion.
16                                                 No. 10-2746

    RIPPLE, Circuit Judge, dissenting. This is an important case
both to the parties and to the development of the law in this
circuit. Given the disposition reached by my colleagues, it is
also imperative that the matter be returned quickly to the
district court. That court issued a final order on May 15,
2015. Under its terms, the Transitional Administrator is
scheduled to report to the parties on the status of the
transition and on the compliance of the parties by August 17,
and the reservation of jurisdiction to enforce the consent
decree will terminate on September 16. The account of the
Office of the Transitional Administrator is scheduled for
closure on September 30, 2015. While I respectfully disagree
with my colleagues’ resolution of the matter, the need to get
this case back to the district court is an imperative that must
be paramount. I therefore am constrained to abbreviate my
own writing in order to ensure that the district court and the
parties are advised of this court’s decision immediately.


                              A.
    In my view, this case does not implicate directly the
content of the consent decree. As the district court noted
explicitly, the order before us is a simple direction enforcing
or implementing that consent decree and therefore is not
governed by the provisions of the PLRA ex proprio vigore.1 In
the course of enforcing or implementing a consent decree,
district courts must issue a variety of orders to address
particular situations that inevitably arise. In the consent
decree, the parties had recognized and agreed that the
personnel situation in the Center had to undergo significant

1   See R.589 at 17.
No. 10-2746                                                             17

change in order to ensure that the previous treatment of the
children came to a permanent end. The decree gives the
Transitional Administrator the responsibility, set out in
some detail in the decree, to achieve a cessation of the
current situation through the implementation of personnel
policy changes. The order appointing the Transitional
Administrator, which the district court quite properly
considered an integral part of the decree, specifically gives
the Transitional Administrator the authority “to establish
personnel policies; to create, abolish, or transfer positions;
and to hire, terminate, promote, transfer, and evaluate
management and staff of the JTDC.”2
    In the course of his work under the consent decree, the
Administrator       determined    that    certain   academic
qualifications were necessary for those employees in direct
and constant contact with the residents. The Union
challenged his authority to make these changes. The district
court had allowed the Union to intervene in the case for a
specific and limited purpose, which included objecting to the
                                           3
Transitional Administrator’s plan. After hearing from the

2   R.330 at 7, § 6(c).
3 The motion to intervene by the Union that ultimately was granted
concerned a prior emergency motion by the Transitional Administrator
to dispense with particular paragraphs in the bargaining agreement in
order to hire an outside contractor to handle certain discrete tasks in the
JTDC, which would require reassignment of current staff. The court
approved the emergency motion over the Union’s objection, later
amending it to the Union’s satisfaction. In its order granting the
emergency motion, the court required a report by the Transitional
Administrator “on the conditions and status of the issues raised” in the
emergency motion. R.415 at 4. In the second of such reports, the
Transitional Administrator included his proposed staffing plan. The
18                                                        No. 10-2746

parties and the Union, the district court held that the
Transitional Administrator’s solution was within his
authority and not in violation of state law. The court
pointedly noted that the court was not ordering the
implementation of the Transitional Administrator’s plan but
simply declaring that his action was within his authority
under the consent decree.
    The Supreme Court noted in Brown v. Plata, 131 S. Ct.
1910 (2011), that, once properly invoked, “the scope of a
district court’s equitable powers … is broad, for breadth and
flexibility are inherent in equitable remedies.” Id. at 1944
(alteration in original) (internal quotation marks omitted).
Our court has long recognized, moreover, a basic distinction
between the terms of a consent decree and the periodic
orders that interpret, enforce and implement its terms. See
Jones-El v. Berge, 374 F.3d 541, 545 (7th Cir. 2004). The
distinction is, to put it mildly, not a novel one, and certainly
one that we must assume that Congress understood in
crafting the present provisions of the PLRA. In the PLRA,
Congress mandated, as Supreme Court decisions already
had done, that the terms of a federal court judgment be
                                                                  4
aimed at a “condition that offends the Constitution.” The
statute’s concern is with whether the court’s judgment or
decree is aimed at a federal constitutional violation and
whether the court has chosen a means tailored to rectify that


court approved the report over the Union’s objection, resulting in the
present appeal.
4 Milliken v. Bradley, 418 U.S. 717, 738 (1974) (internal quotation marks
omitted); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16
(1971).
No. 10-2746                                                 19

violation once these parameters are set, as they were in this
case. Here, the Union brought no challenge against the
consent decree but merely challenged whether a certain
action fell within its scope and was otherwise permissible
under state and federal law.
    No doubt, the PLRA does require that a court give
substantial weight to public safety and adopt a remedial
device that is “narrowly drawn, extends no further than
necessary to correct the violation of the Federal right, and is
the least intrusive means necessary to correct the violation of
the Federal right,” see 18 U.S.C. § 3626(a)(1), but this
statutory admonition, a codification of well-established
principles     of   federal   equitable    jurisprudence     in
constitutional cases, must
       not be interpreted to place undue restrictions
       on the authority of federal courts to fashion
       practical remedies when confronted with
       complex     and    intractable  constitutional
       violations … .
       Courts should presume that Congress was
       sensitive to the real-world problems … [that]
       would remedy constitutional violations in the
       prisons and that Congress did not leave
       prisoners without a remedy for violations of
       their constitutional rights.
Brown, 131 S. Ct. at 1937.
   Here, the district court explicitly noted that the question
before it was a limited one: whether the Transitional
Administrator was authorized to take action under the
20                                                         No. 10-2746

                                                            5
consent decree and under state and federal laws. The court
answered these questions in the affirmative. Indeed, it did
not undertake to alter in any way the consent decree or to
vest additional authority in the Transitional Administrator.
It did not tell him that he had to implement his personnel
plan; it simply told him that he was empowered to do it.
   The district court in no way violated the PLRA in its
handling of the Union’s limited objection.


                                   B.
   My colleagues conclude their opinion by stating that it
should not be read to undermine the validity of the various


5  My colleagues find fault with the district court’s resolution of the
question of the Union’s right to bargain as a matter of state law. The
district court’s decision was based on its assessment of the limited
arguments put before it. That is, it had determined that state law
required application of a fact-specific balancing inquiry and stated that
the Union had “fail[ed] to address in practical terms the anticipated
benefits of bargaining.” R.589 at 11. The Transitional Administrator, on
the other hand, “ha[d] gone through great efforts to explain the
particular reasons for and policies underlying his decision … and how
these standards relate to his court-mandated mission.” Id. at 12. The
court noted that “it is undisputed that approximately half of the JTDC’s
current residents are housed in units structured on the old JTDC
‘system’—a system that was to be ‘restructured’ by court order.” Id.
(citation omitted). Only then, after stating that the Union had not shown
specific benefits of bargaining and that the countervailing interests were
great, did it conclude that “the benefits of bargaining do not outweigh
the burdens” and thus there was no state law right. Id. In my view, this
conclusion is not about the need for speed and flexibility as an
overriding justification, but about a failure of the Union to present the
court with sufficient alternate considerations to be balanced.
No. 10-2746                                                                 21

settlement documents entered in this case. On this point, we
are in agreement, and I write separately to emphasize that
the court’s searching review of the district court record
should not give the impression that we had undertaken to
examine earlier decrees, not the subject of this appeal, for
                                                             6
their separate compliance with the PLRA. There are
multiple reasons, including those mentioned by the majority,
that these questions were not presented in the present
appeal. First, the statute contains a specific way to challenge

6 Whether a consent decree involving prisons always requires, as a
prerequisite to the entry of a remedy, a judicial finding of an actual
constitutional violation even when the parties do not request such a finding is
a very difficult question, one that we ought to approach only in a case
where resolution is absolutely necessary and where the matter has been
briefed fully by the parties to the litigation. While a case can be made
that the PLRA requires such a judicial finding, see Deborah Decker,
Consent Decrees and the Prison Litigation Reform Act of 1995: Usurping
Judicial Power or Quelling Judicial Micro-Management?, 1997 Wisc. L. Rev.
1275, 1278; see also, e.g., Plyler v. Moore, 100 F.3d 365, 370 (4th Cir. 1996)
(deciding the question sub silentio in the context of a proceeding under 18
U.S.C. § 3626(b)(2)), the question becomes a great deal more difficult
when we remember that such a requirement would, as a practical matter,
make the whole idea of a consent decree superfluous. Consent decrees
are sought by defendants, especially state and local defendants, to permit
the implementation of a remedy without an admission or judicial finding
of liability, an admission or finding with dire collateral consequences for
state and municipal defendants. If, as the Supreme Court has
admonished in Brown v. Plata, 131 S. Ct. 1910 (2011), we ought to be
hesitant in interpreting the PLRA to attribute to Congress a motivation in
the PLRA to leave prisoners without a remedy for violations of rights
protected by the Constitution, we ought to be equally careful not to
attribute to that body the motivation to make illusory the one
mechanism by which both incarcerated individuals and local
governments can resolve such litigation relatively expeditiously and
inexpensively while maintaining a good deal of control in local hands.
22                                                               No. 10-2746

a non-conforming decree, 18 U.S.C. § 3626(b), but the parties
have never invoked that section and, to this day, see no
reason to challenge the district court’s determination that the
consent decree is in conformity with the statute. The Union,
whose intervention was limited to the question of whether
the Temporary Administrator’s personnel action was
consistent with the consent decree, has given the question
wide berth. Some of its filings in the district court raise the
matter, at least obliquely, but it never asked the court to hold
                                                           7
a hearing to consider squarely this question.
   Further, in any event, the district court explicitly said
that, with respect to the consent decree, the requirements of
the PLRA were met.8 Portions of my colleagues’ opinion
could be read as suggesting that the district court never
made findings sufficiently detailed to satisfy the statute.
However, the plain language of the statute does not require
any particular degree of detail and, here, no party has ever
disputed the objectives of the consent decree. Nor does any
party contend that the terms of the consent decree are not
designed precisely to deal with the problem. No doubt, if
there is a dispute on whether a condition offends the


7   The district court was clear on this point:
              Although the Union hints that the consent decrees …
              may no longer be necessary to correct any underlying
              constitutional violations, the Union does not go so far as
              to request an evidentiary hearing on this question, nor
              does the Union actually ask the court to terminate these
              orders pursuant to 18 U.S.C. § 3626(b).
R.589 at 17 (citations omitted).
8   See id.
No. 10-2746                                                  23

Constitution or whether the means to address it are
narrowly tailored, more specific findings would be required.
See Cason v. Seckinger, 231 F.3d 777, 784 (11th Cir. 2000). This
situation often arises on a motion to terminate or modify a
consent decree, a motion the Union never made. See 18
U.S.C. § 3626(b). Indeed, if termination is deemed proper
and the decree is continued, the district court must make
particularized findings. See 18 U.S.C. § 3626(b)(3); Ruiz v.
United States, 243 F.3d 941, 950–51 (5th Cir. 2001).
    With great respect for the contrary view of my
colleagues, I would affirm the judgment of the district court
and allow this litigation to come to a peaceful and successful
end.
