Taylor v. United States

181 F.3d 1017, 1999 WL 402748

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 4, 1998
• Docket: Nos. 97-16069, 97-16071
• Status: Published

Opinions

Opinion by Judge RYMER; Concurrence by Judge TASHIMA; Dissent by Judge WARDLAW; Dissent by Judge GRABER.

RYMER, Circuit Judge:

The en banc worthy issue in this case is whether.the “immediate termination” provision of the Prison Litigation Reform Act of 1995 (PLRA), 18 U.S.C. § 3626(b)(2), runs afoul of separation of powers principles. However, we do not need to reach this question because the motion that is before us — “to terminate the consent decree entered in this case on December 22, 1972” — is moot because the December 22, 1972 order (regardless of its label) was interlocutory and disappeared when the final judgment was entered October 19, 1973. We therefore do not have to, and so should not, resolve the constitutionality of the “immediate termination” provision at this time.

But if this is wrong and Arizona is somehow entitled to proceed, then the constitutionality of § 3626(b)(2) can only be decided in the context of the actual judgment that was entered in this action. That judgment could not be more final. It simply approves rules and restoration of individual good time credits that the parties agreed upon and that were basically in place; the judgment contains no ongoing, monitoring, reporting, enforcing, or oversight provisions. It does not look, walk or quack like an injunction. On several occasions the court explicitly disavowed any intention of trying prospectively to manage prison administration, and in its 1973 judgment the court did not retain jurisdiction for any purpose. Indeed, the judgment declares “ [t]hat all relief sought by plaintiff members of the class heretofore designated to which they are entitled is granted by this Judgment and that the class, collectively and individually, is entitled to no other relief under this action.” As such, the judgment ended this case. It cannot be that twenty-five years later, Congress may redefine “relief’ in such a way that it retroactively converts a judgment which on its face ends an action into one that grants “prospective relief’ such that it now must be reopened and terminated. Regardless of the constitutionality of applying § 3626(b)(2) to pre-PLRA consent decrees that do put injunctions in place to govern prisons prospectively, applying the “automatic termination” provision to the Taylor judgment subjects it to reopening conditions that did not exist when it was entered. There is no opinion of which we are aware that would say this is not an unconstitutional incursion on judicial power.

We accordingly affirm denial of the motion to terminate the December 22, 1972 consent decree on the ground that it was moot, but under no circumstances would we reverse on the merits as the dissent indicates we should.

I

In early 1972, two inmates at the Arizona State Prison in Florence, Arizona, Eddie W. Taylor and George Yanich, Jr. (collectively “Taylor”), petitioned the United States District Court for the District of Arizona for writs of habeas corpus under 28 U.S.C. § 2254 and for damages under 42 U.S.C. § 1983.¹ The two related cases were consolidated. In pertinent part, Taylor challenged on a class-wide basis Arizona’s inmate behavior and discipline rules and procedures, and deprivation of “two-for-one good behavior time” (Count Three).² Taylor took discovery and the court conducted evidentiary hearings on May 26 and November 10, 1972. In the middle of the first hearing (on Taylor’s motion for interlocutory relief pending trial), the parties stipulated that “[t]he disciplinary procedures of the prison leave something to be desired to comply with constitutional standards,” and agreed “to negotiate over proper disciplinary standards and procedures to the end of seeking agreement.”³ Settlement negotiations proceeded over the following months and, after additional briefing, the court held another hearing November 10 to discuss their progress. Approximately one month later, the parties lodged an agreement which the district court adopted in a Memorandum and Order filed December 22, 1972. Describing the background, the court observed:

These two class action cases were originally consolidated for trial and counsel was appointed to represent plaintiffs. Twice evidentiary hearings were commenced. Each time the hearings were adjourned prior to completion due to compromise, agreement or stipulation of counsel making further testimony unnecessary. Because of agreements of counsel which prevented a full trial of all issues, findings of fact and conclusions of law are not appropriate.

The court then said of the stipulation:

The following order is in the form stipulated to by counsel for both sides and approved by the Court to dispose of Count 3, the class action attacking the constitutionality of the prison’s disciplinary rules, regulations and conditions of special confinement. All the provisions of the following order were agreed upon by counsel for both sides in consultation with their named clients.... In view of the manner in which the case has arrived at this stage, the Court, at this time, indicates no opinion as to the constitutionality of the prior rules and regulations either as written or as applied.

The order outlined procedural and substantive rules for the administration of prison discipline that had been agreed upon by the parties; required the parties to prepare and submit revised rules within 90 days;⁴ allowed Taylor to present exceptions; indicated that the court would “adjudicate any appropriate issues, and will declare the resultant rules as generally suitable for use and application until changed”; and “retained] jurisdiction to review this procedure within six (6) months to determine that it is operating properly.” It also provided for review of disciplinary records that would result in an order adjusting good time credits that would be res judicata as to the rights of the parties.

Over the next few months the parties completed their negotiations as contemplated in the December 22 Order. On July 25, 1973, Arizona prison officials submitted their final draft of the “Prisoner Rules, Regulations and Discipline Program of the Arizona State Prison,” and Taylor simultaneously filed six objections to specific provisions of the proposed Rules. The court held a hearing on August 2,1973 to resolve Taylor’s objections, at the outset of which it observed, “the responsibility for drafting administrative rules is not on the Court. The Court’s only function is to review rules that have been drafted by the administration, to determine whether they meet minimum constitutional standards and whether they are applied constitutionally, that is, evenly and fairly to everybody.” On August 27, the court issued a Memorandum and Order denying all but one of Taylor’s objections (requiring a hearing prior to revocation of probation that may result in loss of accrued good-time credits). In so doing, it stated:

It is recognized that it is neither the duty nor the prerogative of this Court to dictate rules and regulations for the prison. The Court’s responsibility is only to insure that the disciplinary rules on their face and as applied provide minimal due process as required by the Constitution and that their provisions do not violate the constitutional prohibitions against cruel and unusual punishment. It is recognized that ... persons may differ in their opinions as to the desirability, propriety or effect of different procedures or different standards of punishment, but the test to be applied by the Court is that of minimum constitutional compliance.

The order approved the “Prisoner Rules, Regulations and Discipline Program of the Arizona State Prison” Final Draft with the exception noted. Counsel were ordered to prepare a proposed, amendment, and the court retained jurisdiction “as indicated in previous orders solely for consideration of objections, if any, to the appeals procedure as administered, for final settlement of two-for-one time restoration, and for consideration of the above-indicated amendment.”

The parties filed a stipulation October 19, 1973 reflecting agreed changes to the Final Draft as well as the one ordered change, and the “final settlement” of two-for-one time restoration. On the same day, judgment was entered in Taylor’s favor. The judgment recognizes that the “class herein includes all inmates who were and are serving sentences at the Arizona State Prison during the pendency of this action, as heretofore ordered by the Court and through the date of this judgment....” It approves the Prisoner Rules, Regulations and Discipline Program attached as an exhibit and incorporated by reference. It directs the Arizona State Prison to adjust immediately the respective inmate release dates in accordance with the settlement of two-for-one time restoration stipulated by the parties. And the judgment provides “[tjhat all relief sought by plaintiff members of the class heretofore designated to which they are entitled is granted by this Judgment and that the class, collectively and individually, is entitled to no other relief under this action.”

Taylor filed a “pro forma” motion for a new trial October 23, 1973 in order to give counsel an opportunity to inform the prisoners that a final judgment had been entered. It was denied November 6. No appeal was taken.

In November 1979, Arizona moved to modify the October 19,1973 judgment pursuant to Fed.R.Civ.P.' 60(b) to substitute new “Disciplinary Rules for the Arizona Department of Corrections” for the 1973 prison rules and regulations. The court found that the new rules “on their face [ ] meet minimal constitutional standards” and approved them. Arizona filed another motion pursuant to Rule 60(b)(5) on January 6, 1994, this time “for a modification of the consent decree entered in this matter in 1972” in order to permit the Prison System to adopt a new disciplinary system. This motion was summarily granted on February 24,1994; however, two members of the class acting pro se moved on January 18, 1995 to vacate' the February 24, 1994 order on the ground that they were not given notice of Arizona’s motion. Judge Copple, to whom the matter had originally been assigned, recused himself and it was reassigned to Judge Broom-field, who on March 21, 1997 vacated the February 24, 1994 order on due process grounds but stayed that order pending consideration of Arizona’s now-revived Rule 60(b)(5) motion.⁵

Meanwhile, on September 3, 1996 Arizona moved “to terminate the consent decree entered in this case on December 22, 1972, and modified by Order filed February 24, 1994, pursuant to Fed.R.Civ.P. 60(b) of Civil Procedure and 18 U.S.C. § 3626(b), the Prison Litigation Reform Act.”⁶ The district court denied the September 3, 1996 motion to terminate, and granted Taylor’s motion to declare § 3626(b)(2) of the PLRA unconstitutional. See Taylor v. Arizona, 972 F.Supp. 1239, 1249 (D.Ariz.1997). It is this ruling that Arizona (joined by the United States) appeals.

II

Arizona argues that the PLRA’s termination provision does not violate the separation of powers doctrine because, rather than retroactively reopening a final judgment, it merely establishes conditions for continuing prospective injunctive relief enforced against a state by a federal court. It maintains that the consent decree in this case is not “final” because it is subject to ongoing judicial monitoring and, when necessary, termination either by judicial or statutory authority. Because the decree is not final, Congress may restrict the prospective remedial jurisdiction of the federal courts.

Similarly, the United States points out that this case involves application of the PLRA’s termination provisions to prospective relief, not to a money judgment, and argues a “final” prospective order does not represent “the last word of the judicial department with regard to a particular case or controversy.” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 227, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995). Since a court always possesses the power to revisit continuing prospective orders in light of the evolving factual or legal landscape, and to modify or terminate the relief, it does not offend separation of powers principles to, require a court today, when deciding whether to continue, modify or terminate its prospective orders, to apply the, standards set forth under current federal law — the PLRA. Further, according to the government, Congress has authority under Article I to regulate and restrict the injunctive powers of the federal courts unfettered by common law standards established by the Supreme Court for considering a request to modify or terminate a consent decree, see Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992), and has properly exercised that power in the PLRA.

Taylor responds that a consent decree imposing prospective relief is a final judgment, see id. at 391, 112 S.Ct. 748; Congress may not subject final judgments to new reopening requirements, see Plaut, 514 U.S. at 234, 115 S.Ct. 1447; and the PLRA fails separation of powers analysis to the extent it goes beyond merely setting standards to apply to judgments rendered in the future, seeking instead to reopen judgments already final and to condition their viability on new standards. He disagrees with Arizona and the United States that Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421, 15 L.Ed. 435 (1855) (Wheeling Bridge II) controls,' since Congress has not altered the substantive law upon which the judgment in this case was based. In any event, Taylor contends, the fact that courts may reopen final judgments under the equitable standards in Rule 60(b) does not mean that Congress can impose a mandate to reopen for other reasons.

■ We see the issue somewhat differently from either party. They fix on the separation of powers impact of the PLRA on a “consent decree” supposedly entered December 22, 1972. However, the December 22, 1972 order is not the judgment. The judgment is what counts, and it neither refers to nor incorporates the December 22, 1972 order. Therefore, whether there is a separation of powers problem that we must confront and if so, the framework for its analysis, must start (and so far as we are concerned, also stop) with the October 19,1973 judgment.

A

There is no way to read the December 22, 1972 order as itself being a final order, independent of the judgment entered ten months later. On its face it contemplated further negotiations. While the court did retain jurisdiction, it did so only for six months and only for limited purposes while the parties continued to finalize their settlement.⁷ Although Arizona refers to this order as a “consent decree,” it doesn’t look like one to us. Rather, it appears to be a case management order (reflecting the parties’ stipulation) about how to proceed to dispose of Count Three. It summarizes agreements in principle about the new rules, sets deadlines for submitting revised rules,’ and establishes a process for making and resolving • objections. Regardless, even if the December 22, 1972 order were a “consent' decree,” the judgment does not mention it. The judgment does specifically incorporate by reference — and attaches as exhibits — -the Prisoner Rules, Regulations and Discipline Program, as well as the settlement of two-for-one time restoration and release dates for current inmates, but no other documents. Thus, the judgment itself leaves no doubt that the December 22, 1972 “consent decree” was not part of the relief that was granted. This makes sense, as the December 22, 1972 order was but a work in progress.

Arizona’s motion under the PLRA to terminate the “consent decree” entered December 22, 1972 is accordingly moot.⁸ There is no December 22, 1972 consent decree left to be terminated, for once judgment was entered, the December 22, 1972 interlocutory order (whatever its label) disappeared.⁹ It was automatically terminated by the judgment. This means that the district court had no live motion before it. For this reason we affirm denial of Arizona’s motion, albeit on different grounds from the district court’s.

We recognize that this may seem futile, as Arizona can simply file another motion to terminate relief granted in the judgment, or even urge that its present motion be so construed. We nevertheless decline to do so, for two reasons. First, the arguments have proceeded on the assumption that the court made prospective orders and retained jurisdiction — which it did in the December 22, 1972 order but which it did not do in the final judgment. These arguments are largely beside the point in light of the actual judgment that was entered October 19,1973. The second, related reason is the importance of avoiding a constitutional issue where possible. To uphold denial of Arizona’s motion on mootness grounds obviously serves this salutary purpose.¹⁰ In addition, the separation of powers issue is so serious in this particular case that the parties — and the decision with respect to it — must focus directly on the judgment. If this is done, the question becomes whether Congress may require a United States district court to reopen, reconsider and terminate a final judgment (which leaves nothing more for the district judge to do) under standards that were not in existence when the judgment was entered and became final.

B

Although reluctant to do so, we now turn to that question because the dissent has addressed a different one, and it cannot be correct- that the PLRA’s “immediate termination” provision may constitutionally be applied to the Taylor judgment. The judgment itself leaves no doubt that it left nothing more for the district court to do. Its terms could not be clearer: “[A]ll relief sought by plaintiff members of the class heretofore designated to which they are entitled is granted by this Judgment and [ ] the class, collectively and individually, is entitled to no other relief under this action.” Period.

The court did not retain jurisdiction, as it could have done. Nor does the judgment require Arizona to report on compliance, request permission to make changes, or return to court for any purpose, as it also could have done. Unlike cases where a consent decree does put an injunctive scheme in place and the court retains jurisdiction to enforce it, here the judgment explicitly granted all the relief to which Taylor was entitled. That relief does not include continuing jurisdiction. Indeed, so far as the record discloses, the rules were implemented and the credits were restored; the judgment, in short, was executed. The case is over.¹¹

It is beyond dispute that the separation of powers principle forbids Congress from reopening the final judgments of Article III courts. See Plaut, 514 U.S. at 240, 115 S.Ct. 1447. As the Court explained in Plant:

Article III establishes a “judicial department” with the “province and duty ... to say what the law is” in particular cases and controversies. The record of history shows that the Framers crafted this charter of the judicial department with an expressed understanding that it gives the Federal Judiciary the power, not merely to rule on cases, but to' decide them, subject to review only by superior courts in the article III hierarchy — with an understanding, in short, that “a judgment conclusively resolves the case” because “a ‘judicial Power’ is one to render dispositive judgments.”

Id. at 218-19, 115 S.Ct. 1447 (citations omitted). Inasmuch as “|j]udicial jurisdiction implies the power to hear and determine a cause,” United States v. O’Grady, 89 U.S. (22 Wall.) 641, 647, 22 L.Ed. 772 (1874), once court decisions achieve finality they “may not lawfully be revised, overturned or refused faith and credit by another Department of Government.” Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 92 L.Ed. 568 (1948). Congress violates this fundamental principle by retroactively commanding the federal courts to reopen final judgments, which is precisely what Congress will have done if the PLRA’s “immediate termination” provision is applied to the Taylor judgment.

In a nutshell, Congress may change the law and, in light of changes in the law or facts, a court may decide in its discretion to reopen and set aside a consent decree under Fed.R.Civ.P. 60(b), see Rufo, 502 U.S. at 383-84, 112 S.Ct. 748, or refuse to enforce an executory decree pursuant to its inherent power, see Wheeling Bridge II, 59 U.S. (18 How.) at 431-32, but Congress may not direct a court to do so with respect to a final judgment (whether or not based on consent) without running afoul of the separation of powers doctrine. See Plaut, 514 U.S. at 227, 234-35, 115 S.Ct. 1447.

Congress in fact changed the law in § 3626(a) so that “prospective relief’ with respect to prison conditions shall now extend no further than necessary to correct violation of a federal right and may not be granted at all unless the court finds that the relief is narrowly drawn, extends no further than necessary, and is the least intrusive means necessary to correct the violation.¹² Subsection (a) creates no problem in this case. Presumably under Rufo, a prison subject to injunctive relief could invite a court pursuant to Rule 60(b) to revisit a pre-PLRA consent decree on the basis of this change in law, and might prevail if it could show that continued enforcement was inequitable.¹³ However, § 3626(b)(2) mandates reopening and requires the immediate termination of “any prospective relief’ that was approved or granted in the absence of the findings set out in (a)(1), whether before or after the PLRA’s enactment, unless the court finds that the “prospective relief’ remains necessary to correct an ongoing violation and extends no further than necessary, is narrowly drawn, and is the least intrusive means.¹⁴ In addition, the Act defines “prospective relief’ as “all relief other than compensatory monetary damages.” 18 U.S.C. § 3626(g)(7). Thus, the combined effect of §§ 3626(b)(2) and (g)(7) is retroactively to make any judgment that does not award monetary damages “prospective relief’ subject to immediate termination. Obviously the Taylor judgment awards no money damages, but it also left nothing for the court to do in the future. It simply approved credits that were res judicata and rules that were already in place (except for a reasonable time for printing and distribution of the substantive rules). It awarded no prospective equitable relief. Therefore, if somehow applied in this case, this legislation would both subject a final judgment “to a reopening requirement which did not exist when the judgment was pronounced,” Plant, 514 U.S. at 234, 115 S.Ct. 1447, and direct reversal of a final determination of the Judicial Department. That Congress may not do. To our knowledge, no court has ever held otherwise.

In Wheeling Bridge II, the Court decided not to enforce an executory decree that directed removal of a bridge that had previously been found to constitute an obstruction to navigation, after Congress (which was the authority competent to say so) made the bridge a post-road and thus, by definition, not an unlawful obstruction. 59 U.S, at 430. The important thing about Wheeling Bridge II is that it was the Court that made this decision, exercising its discretion, not Congress that directed the court to reopen and terminate, applying newly enacted standards.

Other circuits that have considered the “immediate termination” provision of the PLRA and held it constitutional have done so in cases involving comprehensive consent decrees that subject prison administrators to ongoing court supervision and enforcement. See, e.g., Benjamin v. Jacobson, 172 F.3d 144, 149-50 (2d. Cir.1999) (en banc) (complex series of consent decrees which “generated a judicially administered structure comprising over ninety related court orders and extending to more than thirty discrete areas of prison administration”); Imprisoned Citizens Union v. Ridge, 169 F.3d 178, 182-82 (3d Cir.1999) (district court retained jurisdiction over decree that governs nearly every aspect of prison management); Hadix v. Johnson, 133 F.3d 940, 941-42 (6th Cir.), cert. denied sub nom. Hadix v. McGinnis, — U.S. -, 118 S.Ct. 2368, 141 L.Ed.2d 737 (1998) (consent decree addressed various aspects of prison life, including safety, sanitation, hygiene, and protection from harm that resulted in several remedial orders over the years); Dougan v. Single-tary, 129 F.3d 1424, 1425 (11th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 2375, 141 L.Ed.2d 743 (1998) (highly detailed remedial order entered after court found prison officials' in contempt for violating decree providing for exercise sessions); Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 653 (1st Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 2366, 141 L.Ed.2d 735 (1998) (1979 consent decree governed jail housing policies and inmate double-bunking under supervision of the court); Gavin v. Branstad, 122 F.3d 1081, 1083-84 (8th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 2374, 141 L.Ed.2d 741 (1998) (court retained jurisdiction to enforce terms of decree that contained detailed regulations governing a number of areas of prison life, and ordered compliance with supplemental agreements over which it also retained jurisdiction); Plyler v. Moore, 100 F.3d 365, 369 (4th Cir.1996), cert. denied, 520 U.S. 1277, 117 S.Ct. 2460, 138 L.Ed.2d 217 (1997) (consent decree contained measures to be taken to alleviate overcrowding and detailed provisions relating to health, services, educational programs, vocational training, food service, and visitation over which court retained jurisdiction “to ensure that the Decree and all plans incorporated herein are fully implemented”). Without expressing a view one way or the other on cases such as these, it is clear that application of the “immediate termination” provision to the Taylor judgment is altogether different.

In sum, borrowing from Plaut, we “know of no previous instance in which Congress has enacted retroactive legislation requiring an Article III court to set aside a final judgment, and for' good reason. The Constitution’s separation of legislative and judicial powers denies it the authority to do so.” Plaut, 514 U.S. at 240,115 S.Ct. 1447.

Ill

Because it is an act of Congress that is at stake on the one hand, but the integrity of a judgment and the independence of the judicial branch that is threatened on the other, we must be cautious in upholding, or overturning, the “immediate termination” provision of the PLRA. We do not have to decide the separation of powers question in this case, since Arizona’s motion to terminate the December 22,'1972 consent decree is moot and was therefore properly denied. However, inasmuch as the dissent would uphold § 3626(b)(2), we are also constrained to say we disagree that it can be constitutionally applied so as to require the district court to reopen and reconsider the Taylor judgment (which leaves nothing more for the district judge to do) under standards that were not in existence when the judgment was entered and became final.

AFFIRMED.

1 .Named as defendants were the State of Arizona; Walter G. Jacobs, Chairman of the Board of Pardons and Paroles; Allen Cook, Director of the Department of Corrections; Frank A. Eyman, Warden of the Arizona State Prison; A.G. Jiminez, a prison Guard Captain; and Solomon Madril and Pablo Lopez, two prison Correctional Officers.

2 . The named plaintiffs changed over time, but for convenience we shall refer to the class throughout as Taylor.

3 . This stipulation was read into the record during the May 26 hearing and subsequently memorialized in a June 2, 1972 Stipulation and Order. The parties also agreed to return Taylor to the general inmate population, restore his suspended two-for-one credits, and to sever Yanich's damages claim. Taylor and Yanich’s remaining damages claims and a claim (also pled as a class action) pertaining to prison living conditions, were disposed of in the court's December 22, 1972 order.

4 . This deadline was later extended to July 25, 1973.

5 . This motion remains in abeyance, as no further substantive activity has occurred in the district court since this appeal was taken from the March 21, 1997 order that also held the “immediate termination” provision of the PLRA unconstitutional. In the March 21, 1997 order, the district court gave Arizona thirty days to file “an amended petition to modify or terminate the consent decree under Rule 60(b)(5) or a notice of election not to file an amended petition.” The record reflects that Arizona filed a supplement to its 1994 motion, with additional authority, but has neither amended the petition to seek to terminate the decree nor filed an election.not to. The fact that this motion to modify is still pending, does not appear to moot or otherwise affect resolution of this appeal, having to do, as it does, with a motion to terminate under the P-LRA. However, as discussed in n.10, infra, a motion pursuant to Rule 60(b) to terminate the “consent decree” (if there were one that is still alive), or for relief from the judgment, might have the effect of making it unnecessary to reach the separation of powers issue posed in this case.

6 . On August 5, 1996 the Arizona Constitutional Defense Council (CDC) filed a motion in the name of the State of Arizona (as it was authorized by state law to do at the time) to terminate injunctive relief and dismiss the case. The Attorney General distanced himself ■ from these papers, and eventually the Arizona Supreme Court ruled that the statute empowering the CDC to pursue legal actions in the name of the state was unconstitutional. Before that decision was rendered, however, the district court allowed the CDC to participate as amicus curiae but rejected its position that even if the PLRA were unconstitutional, Arizona is entitled to a termination of the decree because it complied in good faith and there was no violation of a constitutional right. That ruling is not before us on appeal.

7 . In fact, the August 27, 1973 order effectively superseded the December 22, 1972 order, as the later order addressed proposed new rules submitted pursuant to the prior order. The court recognized a number of changes that had taken place within the Department of Corrections, reiterated that "it is neither the duty nor the prerogative of this Court to dictate rules and regulations for the prison,” and resolved disputes about a few of the proposed provisions. The court also retained jurisdiction "as indicated in previous orders” solely 'to consider objections to the appeal procedure as administered, final settlement of good time credits, and consideration of an amendment to the Final Draft rules. All of this occurred before final judgment was entered in October.

8 . The motion seeks to terminate the "consent decree entered in this case on December 22, 1972, and modified by Order filed February 24, 1994.” The February 24, 1994 order is the order that the district court vacated on due process grounds. However, this has no bearing on the viability of Arizona’s PLRA motion because the Prisoner Rules, Regulations and Discipline Program that were modified in 1979 and that Arizona sought to modify again in 1994 were approved in the judgment — not the December 22, 1972 order.

9 .Cf., e.g., Teamsters Joint Council No. 42 v. Int’l Brotherhood of Teamsters, 82 F.3d 303, 307 (9th Cir.1996) (judgment on the merits moots preliminary injunction); Securities & Exchange Comm'n v. Mount Vernon Mem’l Park, 664 F.2d 1358, 1361-62 (9th Cir.1982) (applying “long recognized” doctrine that the propriety of preliminary relief merges into a decision on the merits); Madison Square Garden Boxing, Inc. v. Shavers, 562 F.2d 141, 144 (2d Cir.1977) ("With the entry of the final judgment, the life of the preliminary injunction came to an end, and it no longer had a binding effect on any one.”).

10 . This would also afford the district court an opportunity on remand to consider whether a motion to terminate under § 3626(b)(2) should first be construed and considered as a motion under Rule 60(b). If the court were to find, for example, that the October 19, 1973 judgment had been discharged it could relieve Arizona of the final judgment pursuant to Rule 60(b)(5). Or if it were to find that the judgment was indeed a "consent decree with prospective application,” but that it would be inequitable to continue giving it prospective effect on account of a significant change in factual conditions or law, it could reopen and revise it under Rufo. Either way, the need to apply the PLRA’s "immediate termination” . provision might be averted.

11 . We disagree with the dissent's view that the district court had "continuing supervisory jurisdiction” or that Arizona availed itself of the court's "continuing supervisory jurisdiction” on several occasions. See Dissent at 6563-64,& n.7. The court did not have continuing supervisory jurisdiction because the October 19, 1973 judgment did not state that it was retaining jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381-82, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Nor did Arizona invoke the court's continuing supervisory jurisdiction in November 1979 or January 1994, but instead filed a routine motion to alter or amend judgment under Rule 60(b). That Arizona chose to ask the court's blessing on revisions to the rules by moving pursuant to Rule 60(b) to modify the judgment, and was successful, is immaterial to the point that it was a final judgment because changing the rules did not require court approval.

12 . 18 U.S.C. § 3626(a) (West Supp.1999), ti- ■ tied "Requirements for relief,” provides in relevant part:

(1) Prospective relief.'—

(A) Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary 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 tire Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.

13 . The Court made clear' in Rufo that even under Rule 60(b) "[a] proposed modification should not strive to rewrite a consent decree so that it conforms to the constitutional floor.” Rufo, 502 U.S. at 391, 112 S.Ct. 748. Thus, even if the Taylor judgment is a "consent decree” under the PLRA’s definition, the congressional directive to terminate it unless it is the minimum necessary to correct a violation goes well beyond the reopening possibilities that the parties could reasonably have expected in 1973. As such, the PLRA definition of a "consent decree” would itself be impermissibly applied retroactively if its effect were to make the Taylor judgment anything other than a final judgment “that may be reopened only to the extent that equity requires” pursuant to Rule 60(b) under Rufo. Id.; see also Stone v. City and County of San Francisco, 968 F.2d 850, 854 (9th Cir.1992) (a consent decree is a final judgment even if the district court retains jurisdiction over the case).

14 . 18 U.S.C. § 3626(b) (West Supp.1999) provides in pertinent part:

(2) Immediate termination of prospective relief. — In any civil action with respect to prison conditions, a defendant or interve-nor shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief 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.

(3) Limitation. — Prospective relief shall not terminate if the court makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation. (Emphasis added.)