Morales Feliciano,et v. John A. Rullan

United States Court of Appeals
For the First Circuit

No. 04-1300

CARLOS MORALES FELICIANO ET AL.,

Plaintiffs, Appellees,

v.

JOHN A. RULLÁN, SECRETARY OF THE PUERTO RICO
DEPARTMENT OF HEALTH, ET AL.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Pérez-Giménez, U.S. District Judge]

Before

Selya, Lynch and Lipez,

Circuit Judges.

Carlos A. Del Valle Cruz, with whom Anabelle Rodríguez,
Secretary of Justice, Eileen Landrón Guardiola, Eduardo A. Vera
Ramírez, and Landrón & Vera, LLP, were on brief, for appellant.
Carlos V. García Gutiérrez, with whom Alejandra Bird López,
Manuel A. Rodríguez Banchs, Ricardo Alfonso García, and Civil
Action and Education Corporation were on brief, for appellees.

August 6, 2004
 SELYA, Circuit Judge. Like the legendary Phoenix, this

class action litigation involving prison conditions in Puerto Rico

is seemingly incapable of eternal rest. The iteration now before

us focuses on prospective injunctive relief ordered by the district

court in 1998 (the centerpiece of which is the proposed

privatization of medical and mental health care throughout the

correctional system). Despite his predecessor's enthusiastic

assent to that arrangement, the Commonwealth's Secretary of Health

(the Secretary), acting in his official capacity, sought five years

later to vacate or terminate the consent decree embodying that

relief.1 Following an evidentiary hearing, the district court

rejected that initiative. Morales Feliciano v. Calderón Serra, 300

F. Supp. 2d 321 (D.P.R. 2004) (Morales IV). The Secretary now

attacks this decision on several fronts. He asserts, inter alia,

that the court acted ultra vires; that the court's 1998 order was

void ab initio for failure to meet the requirements of section 802

of the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134,

110 Stat. 1321-66, § 802 (1996), codified at 18 U.S.C. § 3626; and

that in all events, the order should be terminated because the

district court's supportive factfinding was clearly erroneous and

infected by errors of law. As a fallback, he argues that the

district court bungled the evidentiary hearing and that, at a bare

1
We note that a new administration, representing a different
political party, took office following the general election held in
November of 2000.

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minimum, the matter should be remanded for reconsideration.

Finding these importunings unpersuasive, we affirm the decision

below.

I. BACKGROUND

Given the long and tortuous history of this litigation —

two years ago, we acknowledged that "the lore of this case is

Byzantine," Morales Feliciano v. Rullán, 303 F.3d 1, 3 (1st Cir.

2002) (Morales III) — we confine our introductory comments to those

events that are most directly germane to this appeal. The shelves

of any well-stocked law library will satisfy the appetites of

readers who hunger for more exegetic detail. See, e.g., Morales

III, 303 F.3d 1; Morales Feliciano v. Parole Bd., 887 F.2d 1 (1st

Cir. 1989); Morales IV, 300 F. Supp. 2d 321; Morales Feliciano v.

Rosselló Gonzalez, 124 F. Supp. 2d 774 (D.P.R. 2000); Morales

Feliciano v. Rosselló Gonzalez, 13 F. Supp. 2d 151 (D.P.R. 1998)

(Morales II); Morales Feliciano v. Hernandez Colon, 775 F. Supp.

487 (D.P.R. 1991); Morales Feliciano v. Hernandez Colon, 775 F.

Supp. 477 (D.P.R. 1991); Morales Feliciano v. Hernandez Colon, 771

F. Supp. 11 (D.P.R. 1991); Morales Feliciano v. Hernandez Colon,

754 F. Supp. 942 (D.P.R. 1991); Morales Feliciano v. Hernandez

Colon, 704 F. Supp. 16 (D.P.R. 1988); Morales Feliciano v.

Hernandez Colon, 697 F. Supp. 51 (D.P.R. 1988); Morales Feliciano

v. Hernandez Colon, 672 F. Supp. 627 (D.P.R. 1987); Morales

Feliciano v. Hernandez Colon, 697 F. Supp. 26 (D.P.R. 1986);

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Morales Feliciano v. Romero Barcelo, 672 F. Supp. 591 (D.P.R.

1986); Morales Feliciano v. Romero Barcelo, 605 F. Supp. 967

(D.P.R. 1985); Morales Feliciano v. Romero Barcelo, 497 F. Supp. 14

(D.P.R. 1979) (Morales I).

In the 1970s, a group of prison inmates initiated a class

action alleging "dire shortcomings in virtually every aspect of

prisoner confinement" in the Puerto Rican correctional system.

Morales III, 303 F.3d at 3. The district court found the

plaintiffs likely to succeed on the merits and issued preliminary

injunctive relief. Morales I, 497 F. Supp. at 39-41. The

defendants made little progress and the district court, in March of

1986, appointed a monitor. See Morales III, 303 F.3d at 3; Morales

Feliciano v. Romero Barcelo, 672 F. Supp. at 621. The court

charged the monitor with studying various elements of the

correctional system and recommending remedial action. With the

monitor's assistance, the court became more proactive and issued a

torrent of orders, including temporary restrainers and contempt

citations. The court thereafter imposed multimillion dollar fines

for the most egregious failures to comply with its directives.

In 1990, the court ordered the implementation of medical

and mental health care plans recommended by the monitor. These

plans transferred the primary responsibility for medical and mental

health care in the correctional system from the Administrator of

Corrections (the AOC) to the Secretary. The plans also required

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that the Secretary employ for a minimum of three years a chief

health care coordinator (the CHCC) who would bear responsibility

for easing the transition and coordinating compliance.

Over time, prison conditions improved. In 1996, the

district court entered a partial final judgment that settled

several disputed issues and urged attempts at consensus-based

compliance efforts as to other issues. Despite improvements in

many areas, the delivery of medical and mental health care lagged

behind.

In April of 1997, a court-appointed expert found the

existing health care programs incapable of meeting constitutional

standards and suggested, as an alternative, the appointment of a

receiver. The parties (who, over a quarter of a century, have

agreed on little else) unanimously opposed this recommendation.

They suggested instead the formation of a private non-profit

corporation to provide medical and mental health services to the

inmate population. On September 26, 1997, the parties drafted,

executed, and filed a stipulation embodying this consensus. Under

the terms of the stipulation, a non-profit corporation was to be

formed. The corporation would be structured to provide health care

services, consistent with the 1990 plan, to all individuals held in

institutions operated by the AOC. The stipulation pledged the

parties' full cooperation, required the Secretary and the AOC to

lay the groundwork for a transition, and offered to subject the

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process of privatization to the supervision of the district court.

Finally, the stipulation memorialized the parties' agreement to

engage in further discussions concerning the role and authority of

the CHCC.

The district court endorsed the stipulation and, thus,

assumed ownership of the privatization plan that had been conceived

by the parties. See Morales III, 303 F.3d at 3-4; see also Morales

II, 13 F. Supp. 2d at 212-14 (justifying the adoption of the

privatization remedy by elaborating on the grave constitutional

deficiencies that continued to haunt the existing programs). The

order, as it pertains to this appeal, has retained its original

substance. The non-profit entity, known as the Correctional Health

Services Corporation (the CHSC), has been formed.

The parties and the district court envisioned the CHSC as

a key piece of the privatization machinery. Withal, the CHSC was

intended as a transitional device rather than as the exclusive

provider of inmate health care services in perpetuity. The parties

expected that within a few years of its full implementation, the

CHSC would compete with private health care providers for contracts

to furnish health care services to those persons held in the AOC's

custody. This expectation remains in force.

The CHSC has a checkered history. Originally, the

parties hoped that it would begin to function as early as July 1,

1998, and become fully operational as a provider of health care to

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the inmate population by the end of that year. That prediction

proved wildly optimistic. Although the district court, using

accrued fines, has made substantial funding available to the CHSC

— as of the date of the district court's decision, roughly

$55,000,000 had been spent on the privatization solution — this

monetary infusion has not yet brought the project to fruition.

While the CHSC has made substantial progress toward reaching its

stated goals, the pace has been much slower than anticipated. To

this point, the CHSC has developed an administrative

infrastructure, fashioned an impressive set of substantive

programs, and constructed needed facilities. As a result, it has

begun contributing to the management of payroll, staff assignments,

inventory, purchasing, billing, and financing. The CHSC's

achievements in formulating substantive programs include the

creation of an electronic database for health records, patient

tracking, and the keeping of appointments; the design of a

telemedicine program to enable remote diagnosis and treatment of

psychiatric illnesses; and the training of personnel to maximize

the efficacy of these (and other) programs. The CHSC also has

improved the quality of the facilities and equipment dedicated to

the provision of inmate health care. In the same vein, it has

purchased and installed computers at most of the institutions

operated by the AOC. Last — but far from least — it is in the

process of developing a new acute care hospital.

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 Without in any way minimizing either the value or extent

of these accomplishments, it is evident that the CHSC has lagged

far behind the timetable that its proponents originally envisioned.

Part of the reason is that court supervision has made the process

cumbersome (for example, lengthy periods of time have been consumed

in the submission and approval of budget proposals). Other

factors, such as snail's-pace negotiations with outside

contractors, false starts, and resistance to change, have

contributed to the delay. Though this lag time may have been

unavoidable, the fact remains that, to this date, not a single

patient has been treated by the CHSC.

On October 1, 2003, the Secretary, emphasizing this

protracted period of delay and the mounting costs of completing the

necessary infrastructure, filed a motion under the PLRA to vacate

or terminate the privatization component of the extant consent

decree. The plaintiffs cross-moved to modify the medical and

mental health plans by terminating sections of the decree that

assigned the primary responsibility for inmate health care to the

Secretary. See Morales IV, 300 F. Supp. 2d at 342-43. The cross-

motion went unopposed and the district court granted it. Id. at

343.

Following an evidentiary hearing on the main motion, the

court found that pervasive and persistent constitutional violations

continued to shackle the delivery of health care in Puerto Rico's

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correctional system. Id. at 323-31. The court also found that the

contemplated relief — privatization — satisfied the requirements of

the PLRA. Id. at 331-38. Accordingly, the court upheld the

challenged portion of the consent decree and directed the AOC to

meet with the plaintiff class and submit a further plan for

achieving constitutional compliance. Id. at 344-45. The Secretary

now appeals.2

II. APPELLATE JURISDICTION

We start by clarifying the extent of our jurisdiction.

It is beyond serious question that we have jurisdiction over the

main elements of this appeal. See 28 U.S.C. § 1292(a)(1)

(conferring jurisdiction over interlocutory orders refusing to

terminate injunctions). The Secretary, however, has also attempted

to raise a tangential issue. With regard to that issue, appellate

jurisdiction is more problematic.

The circumstances are as follows. As part of its ruling

below, the district court ordered the AOC to "meet [with the

plaintiff class] and file with the Court within forty-five (45)

days . . . a plan on how the [AOC] will assume his legal

responsibility to provide health care to inmates." Morales IV, 300

F. Supp. 2d at 345. The Secretary asserts that this order, ex

proprio vigore, violates the PLRA and contravenes Supreme Court

2
The AOC has not appealed, and the district court's ukase has
not been stayed. We are advised that meetings between the AOC and
the plaintiffs are proceeding apace.

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precedent regarding limitations on the power of federal courts to

enforce state law against state officers. Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 117 (1984) ("[A] federal suit

against state officials on the basis of state law contravenes the

Eleventh Amendment when . . . the relief sought and ordered has an

impact directly on the State itself."). We cannot reach the merits

of these claims for we have no jurisdiction over them.

This result is largely dictated by the rationale of our

decision in a prior phase of this seemingly endless litigation. In

Morales III, we ruled that an order that "was within the lower

court's reserved power to establish procedures for compliance with

the court's earlier decrees" was not immediately appealable. 303

F.3d at 10. That reasoning is apposite here. A necessary

correlate of the lower court's duty to supervise the ongoing

process of privatization is the power to issue subsidiary orders in

aid of that objective. We thus have no jurisdiction to entertain

an interlocutory appeal from this portion of the court's decision

(or even to consider the plaintiffs' contention that the Secretary

lacks standing to register such a protest).3

3
With only isthmian exceptions, the courts of appeals are
prohibited from exercising pendent appellate jurisdiction. See
Swint v. Chambers County Comm'n, 514 U.S. 35, 49-51 (1995); Limone
v. Condon, 372 F.3d 39, 51-52 (1st Cir. 2004). The Secretary
offers no developed argumentation on this point and, as matters
stand, we believe that this case is not a credible candidate for
the exercise of pendent appellate jurisdiction.

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III. THE MERITS

We proceed to examine the remainder of the Secretary's

asseverational array. He has loosed a scattershot attack. Only

four of his claims are worthy of extended discussion, namely, (i)

that the lower court lacked general equitable power to grant a

privatization remedy; (ii) that the PLRA mandates vacation of the

1998 order as void ab initio; (iii) that, after almost five years

of wheel-spinning, the PLRA now mandates termination of the

prospective relief; and (iv) that the court repeatedly erred in the

course of the evidentiary hearing.4 We address these issues (some

of which have subparts) sequentially.

A. General Equitable Powers.

The Secretary's first broadside need not detain us. He

posits that the relief ordered here is an invalid exercise of

4
The Secretary makes a fifth argument: that the relief
ordered by the district court requires Puerto Rican officials to
act in contravention of local law. The district court refused to
address this argument on the ground that the Secretary did not
sufficiently specify the nature of the alleged violations. That
ruling is supportable, and it precludes reliance on the argument
here. See Teamsters Union v. Superline Transp. Co., 953 F.2d 17,
21 (1st Cir. 1991) (holding that arguments not squarely raised in
the trial court cannot be advanced on appeal). In all events, the
Secretary's appellate presentation suffers from the same lack of
specificity; he alleges the violations in the most general terms
and does not inform us of where in the record we might find any
evidence of them. This lack of developed appellate argumentation
constitutes an independently sufficient basis for deeming the
argument abandoned. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990) ("It is not enough merely to mention a possible
argument in the most skeletal way, leaving the court to do
counsel's work, create the ossature for the argument, and put flesh
on its bones.").

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federal equitable power. Because this argument presents a purely

legal issue, it engenders de novo review. See Sunshine Dev., Inc.

v. FDIC, 33 F.3d 106, 111 (1st Cir. 1994).

At the outset, we note that this argument quite likely is

by the boards. The Secretary's predecessor in office stipulated to

the privatization remedy, and there is no claim that he lacked

authority to do so. Normally, that would constitute a waiver,

which would prevent the Secretary from making this argument

altogether.

Even if the Secretary is not bound by his predecessor's

acquiescence — a matter on which we take no view — the Secretary

did not present this argument to the district court and attempts to

raise it for the first time on appeal. "It is a bedrock rule that

when a party has not presented an argument to the district court,

[he] may not unveil it in the court of appeals." United States v.

Slade, 980 F.2d 27, 30 (1st Cir. 1992). At the least, then, the

argument is forfeited.

We nonetheless inquire briefly into the merits, as

forfeited arguments (unlike waived arguments) ordinarily warrant

review for plain error. Gómez v. Rivera Rodríguez, 344 F.3d 103,

118 (1st Cir. 2003). That type of review "entails four showings:

(1) that an error occurred (2) which was clear or obvious and which

not only (3) affected the [appellant's] substantial rights, but

also (4) seriously impaired the fairness, integrity, or public

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reputation of judicial proceedings." United States v. Duarte, 246

F.3d 56, 60 (1st Cir. 2001).

The Secretary concedes that injunctions — like this one

— that have been issued pursuant to 42 U.S.C. § 1983 are limited

only by the court's inherent equitable powers. See, e.g., Giles v.

Harris, 189 U.S. 475, 486 (1903) (Holmes, J.). He insists,

however, that a federal court's equitable powers are restricted to

the remedies that were available in equity in 1789 (at the time of

the passage of the First Judiciary Act). This proposition is a

correct statement of the law, see Grupo Mexicano de Desarrollo v.

Alliance Bond Fund, Inc., 527 U.S. 308, 318-19 (1999), but the

Secretary's application of it fails plain error review.

Specifically, the Secretary characterizes privatization

as "a fairly recent endeavor" and claims, therefore, that there is

no reasonable basis for holding that court-imposed privatization of

duties ordinarily ascribed to the government is within the district

court's armamentarium. Appellant's Br. at 29. If this crabbed

view reflected the state of the law, equitable remedies would be

frozen in time and new remedial applications could never be

developed to meet contemporary needs. The view, however, is

fundamentally at odds with the core principle that equity must

evolve over time "in order to meet the requirements of every case,

and to satisfy the needs of a progressive social condition in which

new primary rights and duties are constantly arising and new kinds

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of wrongs are constantly committed." Union Pac. Ry. Co. v.

Chicago, Rock Island & Pac. Ry. Co., 163 U.S. 564, 601 (1896).

Consistent with this principle, the Supreme Court has

made clear that the inquiry into the availability of equitable

relief in a particular case focuses upon whether the general manner

of relief sought was available at equity in 1789. See Grupo

Mexicano, 527 U.S. at 322. This inquiry is informed by a

recognition that equity is flexible and that the boundaries of

permissible relief are broad. Id. Thus, the relevant question is

not whether a specific application of relief was available in 1789,

but, rather, whether that general type of relief was available.

In this case, the answer to that question is affirmative.

At bottom, the endorsed anodyne — privatization — calls for relief

in the nature of a mandatory injunction, and injunctive relief is

a classic equitable remedy. Great-West Life & Annuity Ins. Co. v.

Knudson, 534 U.S. 204, 211 n.1 (2002); Mertens v. Hewitt Assocs.,

508 U.S. 248, 256 (1993); Griggs v. E.I. Dupont de Nemours & Co.,

237 F.3d 371, 384 (4th Cir. 2001). A survey of contemporary

applications of this rule supports this conclusion. Courts

consistently have upheld relief in equity notwithstanding the fact

that the particular remedial application was not available in 1789.

School busing orders exemplify this point. See, e.g., Swann v.

Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 30 (1971); Morgan

v. Kerrigan, 530 F.2d 401, 414-15 (1st Cir. 1976). If the

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Secretary's argument were sound, all such orders would be beyond

the equitable power of a federal court.

The short of it is that a federal district court, faced

with pervasive and persistent constitutional violations, has not

only the power but also the duty to render a decree that will,

insofar as is possible, return matters to a constitutionally

acceptable level. While the privatization remedy constitutes

extraordinary relief and can be justified in only the most

exceptional circumstances, the nature of the remedy is no different

than that of a garden-variety mandatory injunction. Seen in this

light, we conclude that the district court did not commit plain

error in determining that it had the authority to approve and

implement a privatization remedy jointly proposed by the parties.

B. Compliance with the PLRA.

In 1996, Congress enacted the PLRA, partially in an

effort to curb the involvement of the federal judiciary in day-to-

day prison management. See 141 Cong. Rec. 13,319 (1995) (statement

of Sen. Abraham); id. at 14,418 (statement of Sen. Hatch). This

ambient intent must guide our interpretation of the statutory text.

See Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 655 (1st

Cir. 1997).

The PLRA establishes standards for the entry and

termination of all prospective relief in civil actions challenging

prison conditions. See Miller v. French, 530 U.S. 327, 333 (2000).

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The term "prospective relief" encompasses "all relief other than

compensatory monetary damages." 18 U.S.C. § 3626(g)(7). The

statute requires that prospective relief "shall extend no further

than necessary to correct the violation of the Federal right of a

particular plaintiff or plaintiffs." Id. § 3626(a)(1). It further

provides that a federal 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

necessary to correct the violation of the Federal right." Id. A

party is entitled to immediate termination of any relief that has

been granted in the absence of findings as to these criteria. Id.

§ 3626(b)(2). Conversely, however, prospective relief "shall not

terminate if the court makes written findings based on the record

that prospective relief [meets the above requirements]." Id. §

3626(b)(3).

This statutory backdrop provides the setting for the

Secretary's next challenge to the propriety of the privatization

order. This challenge has three foci, each spawned by the PLRA.

We deal with them in order.

1. Validity of the 1998 Order. The Secretary first

argues that, when originally entered in 1998, the order approving

privatization did not meet the PLRA's requirements and, thus, "must

be set aside without further consideration." Appellant's Br. at

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31. Because the district court did not make the findings

specifically required by the PLRA coincident with the entry of its

1998 order, the Secretary's thesis runs, the order was void ab

initio.5

The Secretary's thesis hinges on the premise that when

prospective relief does not meet the PLRA's requirements at the

moment of issuance, the decree is void without reference to the

statutory termination procedure. On this premise, the termination

procedure applies only to (i) prospective relief entered before the

effective date of the PLRA and (ii) prospective relief entered

after that date which is accompanied by the requisite narrowness-

need-intrusiveness findings. Prospective relief entered after the

PLRA's effective date but unaccompanied by narrowness-need-

intrusiveness findings is simply void.

There is no textual support for the Secretary's position.

He relies on the mandatory language of 18 U.S.C. § 3626(a), which

states that "[t]he court shall not grant or approve any prospective

5
Although we assume arguendo the correctness of the
Secretary's assessment of what transpired in 1998, we note that the
district court made a series of contemporaneous written findings,
which may well have satisfied the narrowness-need-intrusiveness
requirements. See Morales II, 13 F. Supp. 2d at 212 (holding that
privatization "is necessary to protect the members of the plaintiff
class from cruel and unusual punishment through constitutionally
unacceptable health care services," that the remedy "extends no
further than is necessary to correct the violation of the Federal
rights of members of the plaintiff class," that "such relief is
narrowly drawn," and that there "is no less intrusive means to
correct the violation of plaintiffs' Federal rights").

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relief" in the absence of specific findings. But this subsection

sets forth the standard district courts must follow when

determining whether prospective relief not yet ordered is permitted

by the PLRA. Gilmore v. California, 220 F.3d 987, 999 (9th Cir.

2000) ("If prospective relief has already been granted by a court,

§ 3626(b) controls."). Here, however, privatization constitutes

the status quo (and the Secretary advanced no PLRA-based argument

at the time that privatization was originally approved).

The only authority cited by the Secretary — Rouse — does

not support his point of view. He asserts that Rouse drew a

distinction between orders issued prior to the enactment of the

PLRA and those issued subsequent thereto. That is incorrect.

Rouse drew a distinction between "existing federal court orders"

and those "not yet obtained." 129 F.3d at 654. That distinction

contradicts the position that the Secretary advocates in this

appeal.

Accordingly, we hold that the procedure limned in 18

U.S.C. § 3626(b) applies to any existing prospective relief,

regardless of when that relief was first ordered. See Miller, 530

U.S. at 333 (stating that section 3626(b) applies to "existing

injunctions"); Harvey v. Schoen, 245 F.3d 718, 720 (9th Cir. 2001)

(holding that prospective relief made "in the absence of the

required findings" is immediately terminable "regardless of when

ordered"); see also Rouse, 129 F.3d at 654 (suggesting that the

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termination procedures set forth in section 3626(b) apply to all

existing federal court orders).

Since privatization is required by a preexisting court

order, the situation is controlled by subsection (b), not

subsection (a). See Rouse, 129 F.3d at 654. That makes a

significant difference. Nothing in subsection (b) or in its

legislative history speaks of vacating consent decrees but only of

terminating them. That linguistic shift has practical

consequences. "While terminating a consent decree strips it of

future potency, the decree's past puissance is preserved . . . ."

Id. at 662.

That gets the grease from the goose. Although 18 U.S.C.

§ 3626(b) entitles a defendant to termination of existing

prospective relief ordered in the absence of the requisite

findings, that proviso excepts cases in which the court supportably

finds that the particular form of prospective relief remains at the

time of the challenge narrowly tailored, necessary, and relatively

unintrusive. See id.; see also Guajardo v. Tex. Dep't of Crim.

Justice, 363 F.3d 392, 394 (5th Cir. 2004) (per curiam). There is

no time limitation present in section 3626(b)(2), nor does its

language suggest that it reaches only those orders issued prior to

the PLRA's effective date.

To cinch matters, section 3626(b) provides that any order

made in the absence of the required findings is subject to

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"immediate termination." This word choice is significant. See

Rouse, 129 F.3d at 662. The verb "terminate" means "to put an end

to" or "to end." Black's Law Dictionary 1482 (7th ed., 1999). If

Congress had intended that orders issued in the absence of the

required findings be void ab initio, it would almost certainly have

chosen a phrase such as "void."

To sum up, the PLRA grants the Secretary a right to move

for the termination of prospective relief. The PLRA does not,

however, confer any right to argue, five years after the fact, that

an order should be deemed void ab initio for lack of

contemporaneous findings. Therefore, this aspect of the

Secretary's challenge founders.

2. The Constitutional Violations. Upon a motion to

terminate prospective injunctive relief under the PLRA, a court may

continue the relief only if it supportably finds that there are

ongoing constitutional violations. 18 U.S.C. § 3626(b). The

district court purposed to make such findings in this instance.

See Morales IV, 300 F. Supp. 2d at 323-31, 342. The Secretary

counters that the record does not show infirmities sufficient to

justify ongoing relief and that the district court's contrary

findings are clearly erroneous.

An inquiry into whether current prison conditions

constitute an ongoing violation of a federal right "comprises a

mixed question of fact and law, the answer to which we review along

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a degree-of-deference continuum, ranging from plenary review for

law-dominated questions to clear-error review for fact-dominated

questions." Rouse, 129 F.3d at 661. Here, the question is fact-

intensive — the Secretary frontally challenges the lower court's

factfinding — so our standard of review is deferential. See id.;

see also Dedham Water Co. v. Cumberland Farms Dairy, Inc., 972 F.2d

453, 457 (1st Cir. 1992) (admonishing that appellate courts should

respect the trial court's findings of fact unless convinced, after

a careful review of the record, that a mistake has been made). If

there are two permissible views of the evidence, the factfinder's

choice between them must be respected. See Fed. Refin. Co. v.

Klock, 352 F.3d 16, 29 (1st Cir. 2003). The lower court's factual

findings easily pass muster under this deferential standard.

We have painstakingly reviewed the record and examined

the numerous findings of fact, mindful that a trial court generally

is considered the most informed interpreter of its own prior

rulings and findings. See Rouse, 129 F.3d at 661. In this

instance, the court was very careful to update the record and to

consider the ways in which conditions had changed since its

original endorsement of the privatization concept. See Morales IV,

300 F. Supp. 2d at 323-31. The court painted a compelling, record-

rooted picture of how and in what respects health care for inmates

in Puerto Rican prisons remains constitutionally deficient. See

-21-
id. On this grim record, it is simply implausible to suggest that

these findings are clearly erroneous.

The district court characterized the denial of medical

and mental health services as "massive and systematic." Id. at

324. That characterization seems apt. No useful purpose would be

served by rehearsing the court's findings in minute detail. We

offer instead a few of the more glaring examples. As of 2003, one-

fourth of all inmates who requested sick call did not get it; only

55% of all ambulatory care appointments actually took place; only

49% of specialist consultations deemed necessary for serious

conditions were arranged; as a rule, medically prescribed diets for

inmates were habitually ignored; only 31.3% of inmates who had been

diagnosed HIV-positive were receiving treatment; and inmate

mortality rates were rising. See id. at 323-31. These are but the

tip of a particularly unattractive iceberg. Despite the CHSC's

efforts, physical facilities for inmate health care remain

inadequate and there is an acute shortage of psychiatric expertise.

See id. at 326-27, 331. Basic health care is critical to

maintaining a decent quality of life, and Puerto Rico's

correctional system is not delivering a constitutionally acceptable

level of health care to its captive population.

We acknowledge that in the course of making these

findings, the district court largely disregarded the testimony of

the Secretary's expert witness as lacking in credibility. Although

-22-
the Secretary complains bitterly about this rejection, it is

hornbook law that matters of credibility are ordinarily for the

court of first instance, not for the appellate court. Laurent v.

Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004). Unless the record

mandates a contrary finding — and this record most assuredly does

not — the court of appeals ought not disturb a trial court's

credibility determination. See Anthony v. Sundlun, 952 F.2d 603,

606 (1st Cir. 1991); see also 9A Charles Alan Wright & Arthur R.

Miller, Federal Practice & Procedure § 2586 (2d ed. 1994)

(collecting cases). Here, moreover, there is much to commend the

district court's assessment of the witness's dubious credibility

(for example, the witness provided haphazard and inconsistent

testimony and, on cross-examination, withdrew or corrected a myriad

of statements).

The Secretary accurately observes that some noteworthy

advances have been made in the delivery of health care to inmates.

He overlooks, however, that notwithstanding these improvements, the

district court found substantial deficiencies attendant to

virtually every aspect of the inmate health care system. Morales

IV, 300 F. Supp. 2d at 324. However laudable the advances may be,

the district court's supportable finding that constitutional

violations persist suffices to satisfy the requirements of the PLRA

and to justify a comprehensive injunctive decree.

-23-
 To say more on this subject would be supererogatory. We

hold, without serious question, that the district court's findings

and conclusions about the incidence of continuing constitutional

violations are adequately anchored in the record.

3. The Narrowness-Need-Intrusiveness Findings. The PLRA

mandates "the termination of extant consent decrees altogether

unless the district court makes the specific findings that are

necessary to keep a particular decree alive." Rouse, 129 F.3d at

655. In addition to ongoing constitutional violations, this

compendium includes a finding that the ordered relief satisfies the

statutory narrowness-need-intrusiveness criteria. See 18 U.S.C. §

3626(b). The district court made such findings here. See Morales

IV, 300 F. Supp. 2d at 342. The Secretary argues that the facts of

this case, as found, require termination of the decree because the

chosen remedy — privatization — does not meet the narrowness, need,

and intrusiveness requirements delineated in the PLRA.

Congress plainly intended the PLRA to operate as a

mechanism that would decrease federal judicial involvement in

prison administration. See Rouse, 129 F.3d at 655. Congress left

room, however, for needed injunctive relief. The Secretary's

insistence that Congress did not want courts involved in prison

administration begs the real question — which is whether a

particular set of facts, measured under the statutorily specified

criteria, warrants continued judicial involvement. We think that

-24-
this is a close call in the case at hand, but for the time being,

we find supportable the district court's conclusions regarding

narrowness, need, and lack of intrusiveness.

The narrowness-need-intrusiveness criteria are, to some

extent, self-explicating. The devil is in the details attendant to

their application. The application of those criteria is case-

specific and must be undertaken in light of both the magnitude of

existing constitutional violations and the available remedial

alternatives.6 See, e.g., Clement v. Cal. Dep't of Corrections,

364 F.3d 1148, 1153 (9th Cir. 2004). The constitutional violations

here are substantial in both scope and degree. They have defied

correction for more than two decades. The district court has tried

more conventional measures, but found them wanting. It has

afforded the Commonwealth ample opportunity to bring preexisting

mechanisms up to speed or otherwise to correct the phalanx of

problems. It has witnessed the Commonwealth's continued inability

to cure the constitutional infirmities plaguing the delivery of

health care in the correctional system. This record of abject

failure matters in the narrowness-need-intrusiveness inquiry. See

6
We reject out of hand the Secretary's argument that an order
to privatize is a per se violation of the narrowness requirement of
the PLRA. The narrowness of a remedy necessarily involves a close
examination of a particular set of facts and a determination
concerning what steps are reasonable to cure the ongoing
constitutional violations. Because this will necessarily be
influenced by a variety of factors, we are wary of adopting
ironclad rules.

-25-
Benjamin v. Fraser, 343 F.3d 35, 49 (2d Cir. 2003) (upholding

narrowness-need-intrusiveness findings "in light of the district

court's finding that the [defendant's] compliance with its remedial

responsibilities has been consistently incomplete and inadequate").

The need for continued prospective injunctive relief is

patent. The lower court has been dealing with the deficiencies of

Puerto Rico's correctional system since 1979, and we acknowledge

that the sheer passage of so much time counsels restraint in

ordering further extensions of prospective injunctive relief. See,

e.g., Spangler v. Pasadena City Bd. of Educ., 611 F.2d 1239, 1241

(9th Cir. 1979). However, the correctional system is sprawling,

the problems with which the court has had to grapple are massive,

the Commonwealth's acceptance of the need for reforms has ranged

from inconsistent to grudging (witness the current state of affairs

in which the AOC embraces privatization as the Secretary seeks to

dismantle it), and progress has been correspondingly slow. Insofar

as health care is concerned, the level of improvement still falls

well short of bringing serious violations into constitutional

compliance. Morales IV, 300 F. Supp. 2d at 323-31. In some

respects, backsliding has occurred. See id. at 324. In light of

these facts, we have no difficulty affirming the district court's

finding that a need for ongoing injunctive relief exists.

We next consider the district court's findings regarding

narrow tailoring and lack of intrusiveness. In 2003, the district

-26-
court was keenly aware of its duty to ensure that prospective

remediation complies with the PLRA's requirements. See Morales IV,

300 F. Supp. 2d at 331. It was, however, faced with a

constitutional crisis and only three proposed solutions: turning

back the health care clock to reinstate the system that had failed

miserably for two decades, placing the system into receivership, or

persisting with the plan for privatization (which the parties had

conceived and to which they originally had agreed). The status quo

ante alternative had proven to be ineffective, and, thus, was

undesirable. No one favored the receivership alternative. That

left privatization. Against this mise-ên-scéne, we cannot say that

the lower court's choice of that alternative was unreasonable.

The Secretary nonetheless argues that privatization is

much broader than necessary to forfend against cruel and unusual

treatment of inmates. If this were the district court's first

attempt at remediation, we quite likely would agree. But the

district court has attempted narrower, less intrusive alternatives

— and those alternatives have failed to restore the constitutional

balance. For this reason, a more innovative remedy is justifiable.

The increased intrusiveness and broader scope of the privatization

remedy is a direct response to the unique need created by the

Commonwealth's own failure — for more than twenty years — to

correct serious constitutional inadequacies. Drastic times call

for drastic measures.

-27-
 The Secretary has one final shot in his sling. He

laments that privatization is far behind schedule and has

accomplished very little to date. Nevertheless, a great deal of

time, effort, and money has been spent in constructing facilities,

procuring equipment, creating programs, and building a more

responsive infrastructure. Perhaps more important, the CHSC has

developed a functional information technology system. Knowledge is

power, and that platform seems reasonably likely to contribute

measurably to the long-term success of the prison health care

system. It provides a means of maintaining accurate records and

thus creating accountability. See, e.g., Carol Gentry, Health-Care

Firms Face Costly Change, Wall St. J., Jan. 3, 2000, at A3 ("By

speeding up the transmission and improving the accuracy of

information, health plans should be able to do a better job of

monitoring the quality of care."); Laura Landro, Health Care Goes

Digital: Doctors and Hospitals Find They Can't Stay Offline Any

Longer, Wall St. J., June 10, 2002, at R6 ("There is a clear

linkage now between technology and better patient outcomes."). The

district court has cultivated this tree patiently and at great

expense, and it would be rash for us to insist that it be uprooted

just when it shows promise of bearing fruit.

The Secretary's related complaint — that the

ineffectiveness of privatization to date defeats the finding of

narrowness — is unpersuasive for two reasons. First, a

-28-
determination of narrowness requires a court to decide whether

ordered relief is tailored to rectify existing constitutional

violations. See Cason v. Seckinger, 231 F.3d 777, 784 (11th Cir.

2000) ("The court must make new findings about whether the relief

currently complies with the need-narrowness-intrusiveness

requirements, given the nature of the current violations."); see

also Castillo v. Cameron County, 238 F.3d 339, 354 (5th Cir. 2001).

Whether a remedy is capable of successfully ameliorating

constitutional violations has no necessary correlation with whether

it is narrowly drawn. Narrow relief can be completely ineffectual.

See Morales II, 13 F. Supp. 2d at 157-58 (noting the failure of

limited injunctive orders to bring the Puerto Rican correctional

system into constitutional compliance). That the privatization

concept has been slow to come to fruition does nothing to prove

that the order is overly broad (or overly intrusive, for that

matter).

Second, we think that the PLRA is too blunt an instrument

for addressing this concern. As said, the PLRA limits courts to

terminating prospective relief. Not every unforseen difficulty in

implementing injunctive decrees necessitates the total abandonment

of a remedy. It is true that the CHSC has lagged far behind the

original schedule and that the corporation has, to date, not

accomplished its ultimate goals. It is also true that an

ineffective remedy is a cause for concern. In light of the

-29-
substantial progress that has been made, however, the mere fact

that privatization is behind schedule does not convince us that it

fails the narrowness-need-intrusiveness test.7

We are well aware that federal oversight of Puerto Rico's

correctional system cannot — and should not — last forever. We

strongly urge both the district court and the litigants to move the

privatization process forward with all practicable speed. For now,

however, we conclude, based on the record evidence and the factual

findings of the district court, that the privatization order meets

the PLRA's requirements. The privatization solution has not yet

been put into practice and common sense dictates that it be given

a fair chance to work. The order appealed from provides that

chance.

C. The Evidentiary Hearing.

The Secretary's fallback position is that the district

court committed reversible error in its manner of conducting the

evidentiary hearing on the motion to terminate prospective relief.

This contention has four branches. All of them are acarpous.

1. Burden of Proof. The Secretary first suggests that

the district court impermissibly shifted the burden of proof. This

suggestion derives primarily from the court's decision to order the

7
It may well be that modification, or some other more limited
adjustment, is appropriate to address such concerns, see Fed. R.
Civ. P. 60(b)(5) — but that issue is not before us.

-30-
proof by directing the Secretary (rather than the inmate class) to

come forward, at the start of the hearing, with his evidence.

It is axiomatic that district courts enjoy wide latitude

in matters concerning the ordering of proof and the presentation of

evidence. See, e.g., United States v. Holmquist, 36 F.3d 154, 163

(1st Cir. 1994); Elgabri v. Lekas, 964 F.2d 1255, 1260 (1st Cir.

1992); see also Fed. R. Evid. 611(a). We review a trial court's

determinations concerning the mode and order of proof for abuse of

discretion. Nat'l R.R. Pass. Corp. v. Certain Temporary Easements,

357 F.3d 36, 42 (1st Cir. 2004). We will reverse only if a

determination has unfairly prejudiced the complaining party. Id.

The decision to require the Secretary to present his

proof first was not an abuse of discretion. In arriving at its

decision on the motion to terminate, the court was free to rely on

any aspect of the record that tended to shed light on whether

constitutional violations persisted. See Laaman v. Warden, N.H.

State Prison, 238 F.3d 14, 17-18 (1st Cir. 2001) (noting that the

court's familiarity with the record and its receipt of periodic

reports may afford it "comprehensive knowledge of whether a prison

is, or is not, continuing to violate the consent decree"). At the

beginning of the hearing, the court had before it a full

evidentiary record, developed over many years, together with a

cache of periodic reports as to progress under the consent decree.

This plethoric evidence was sufficient, if unrebutted, to support

-31-
a finding that constitutional violations endured. With this in

mind, it was sensible for the court to invite the Secretary to

offer evidence to the contrary.

To be sure, a trial court's authority to regulate the

order of proof does not include the power to shift the burden of

proof. Brown Daltas & Assocs., Inc. v. Gen. Accid. Ins. Co., 48

F.3d 30, 37 (1st Cir. 1995) (reversing a judgment because the trial

court erroneously shifted the burden of proof); see also 9 J.

Wigmore, Evidence § 2489 (J. Chadbourn ed. 1981). But that is not

what happened here: the court's election to hear the Secretary's

evidence first in no way betokened reallocation of the burden of

proof. In its subsequent review of the evidence, the court said

nothing that indicated any misunderstanding as to where the burden

of proof rested. Rather, it supportably determined that the facts

presented by the Secretary lacked sufficient probative force to

blunt the thrust of the accumulated evidence of record. Morales

IV, 300 F. Supp. 2d at 339-40 (relying on the Secretary's own

evidence to find continuing constitutional violations). In short,

the contention that the lower court impermissibly shifted the

burden of proof has no footing in the record.

2. The Agreement Between the Parties. The Secretary

next maintains that the district court erred by relying on the

existence of a "private agreement" (by private agreement, he means

the stipulation that was signed in 1997 by, inter alios, his

-32-
predecessor in office). Specifically, the Secretary asserts that

the fact that there was an agreement between the parties should

have had no bearing on the continuing viability of the subsequent

order approving privatization (entered in 1998). This assertion

overlooks that the so-called private agreement was embodied in a

stipulation presented to and adopted by the district court. Upon

its adoption, the private agreement became a judicially enforceable

consent decree. Frew ex rel. Frew v. Hawkins, 124 S. Ct. 899, 903

(2004) ("A consent decree embodies an agreement of the parties and

is also an agreement that the parties desire and expect will be

reflected in, and be enforceable as, a judicial decree that is

subject to the rules generally applicable to other judgments and

decrees." (internal quotation marks omitted)); In re Pearson, 990

F.2d 653, 658 (1st Cir. 1993) (similar).

This is significant because the Secretary's argument

blurs the crucial distinction, for PLRA purposes, between private

side agreements and consent decrees. The latter may serve as a

vehicle for prospective relief under the PLRA; the former may not.

See 18 U.S.C. § 3626(a); see also id. § 3626(c)(1).

In all events, the lower court did not rely impermissibly

on the parties' original agreement. Although the court noted the

existence of that agreement and scolded the Secretary for trying to

renege on it, the holding in Morales IV was in no way premised

either on an estoppel or on the fact that the parties previously

-33-
had agreed to explore a privatization alternative. For these

reasons, the Secretary's argument fails.

3. The Exclusion of Evidence. The Secretary also

contends that the district court erred in refusing to allow him to

introduce evidence as to the narrowness-need-intrusiveness

criteria. On this point, as is so often true in litigation,

context is decisive.

After the Secretary had presented his evidence as to the

existence vel non of continuing constitutional violations, the

district court asked him to summarize the evidence that he planned

to adduce on the narrowness-need-intrusiveness criteria. The

Secretary proceeded to make an offer of proof. Having heard the

proffer, the court determined that nothing in it bore directly upon

the narrowness of, need for, or potential intrusiveness of the

privatization remedy. Consequently, the court rejected the

Secretary's offer of proof on relevancy grounds.

We descry no error. In many instances, relevancy boils

down to a judgment call. See generally Fed. R. Evid. 401 (deeming

evidence relevant if it has "any tendency to make the existence of

any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the

evidence"). Accordingly, district courts enjoy wide latitude in

determining the relevancy vel non of evidence. Laaman, 238 F.3d at

18-19; United States v. Tierney, 760 F.2d 382, 387 (1st Cir. 1985).

-34-
In this instance, the district court concluded that the offer of

proof had no bearing on the appropriateness of the remedy under the

PLRA's narrowness-need-intrusiveness criteria. Morales IV, 300 F.

Supp. 2d at 337-38. Having reviewed the offer of proof, we find

that this ruling was within the realm of the district court's

discretion. We explain briefly.

By way of his offer of proof, the Secretary proposed to

introduce evidence designed to show the ineffectiveness of the

remedy. He began the proffer by alleging generally that the non-

profit corporation was not a viable remedy because it had not yet

treated a single patient. The district court asked for

elaboration, and the Secretary expressed a desire to take discovery

on the matter. Morales IV, 300 F. Supp. 2d at 337. When the court

refused that untimely request, the only details proffered by the

Secretary tended to show that the CHSC was not complying with

either the district court orders or Puerto Rico laws, and that it

was not ready to begin treating patients. Id. at 338. This is a

distinct line of inquiry. See Hadix v. Johnson, 228 F.3d 662, 673

(6th Cir. 2000) (explaining that inquiries into compliance and

inquiries into necessity under the PLRA are separate and distinct).

As the district court sagely noted, compliance was not at issue in

the evidentiary hearing. Morales IV, 300 F. Supp. 2d at 338.

We — like the district court — do not see how the

Secretary's offer of proof informs a determination of whether the

-35-
privatization remedy is a narrowly tailored, relatively unintrusive

response to the serious constitutional violations that the district

court found still existed. We note, moreover, that the Secretary

has not explained the connection. We thus cannot fault the

district court either for the rejection of the offer of proof or

for its consequent exclusion of the proffered evidence.

4. Rule 52(c). Finally, the Secretary assigns error to

the district court's use of Fed. R. Civ. P. 52(c) as an

adjudicative tool. See Morales IV, 300 F. Supp. 2d at 344. Rule

52(c) provides a court conducting a bench trial with a means for

issuing a judgment on partial findings. The rule is designed for

use when "a party has been fully heard on an issue and the court

finds against the party on that issue." Fed. R. Civ. P. 52(c).

The district court invoked that procedure here. The

Secretary asseverates that this was not permissible on the facts of

this case. We reject this asseveration.

To be frank, we find the Secretary's argument difficult

to fathom. The text of the rule is clear. When a party has

finished presenting evidence and that evidence is deemed by the

trier insufficient to sustain the party's position, the court need

not waste time, but, rather, may call a halt to the proceedings and

enter judgment accordingly. See Fed. R. Civ. P. 52 advisory

committee note ("Subdivision (c) . . . authorizes the court to enter

judgment at any time that it can appropriately make a dispositive

-36-
finding of fact on the evidence."); see also Atl. Track & Turnout

Co. v. Perini Corp., 989 F.2d 541 (1st Cir. 1993). The fact that

the inmate class had the burden of proof did not place Rule 52(c)

off limits. A judgment under Rule 52(c) can be entered for or

against either a plaintiff or a defendant, regardless of the

allocation of the burden of proof. See Bursztajn v. United States,

367 F.3d 485, 488 (5th Cir. 2004); Fed. Refin. Co., 352 F.3d at 26;

see also 9A Wright & Miller, supra § 2573.1.

Here, the Secretary had advanced his proof and the

district court supportably concluded that the Secretary's evidence

could not withstand the probative force of the historical record.

In other words, even after taking the Secretary's case into account,

the court determined that the plaintiffs had sustained their burden

of showing pervasive and persistent constitutional violations.

Morales IV, 300 F. Supp. 2d at 340-42. The court also supportably

determined that the privatization remedy satisfied the narrowness-

need-intrusiveness criteria, and that the Secretary's offer of proof

did not include any relevant evidence to the contrary. Based on

these findings, the district court appropriately entered judgment

pursuant to Rule 52(c). That the court made a series of credibility

calls in reaching these conclusions in no way detracts from the

legitimacy of its approach. See Wright & Miller, supra § 2573.1,

at 497-99 (noting that the court's task under Rule 52(c) is to weigh

the evidence, without drawing any special inferences in the

-37-
nonmovant's favor, resolve any conflicts in the evidence, and

"decide for itself where the preponderance lies").

IV. CONCLUSION

We are sensitive both to Congress's manifest desire to

limit federal judicial oversight of state correctional systems and

to the length of time that Puerto Rico's prisons have been under

federal hegemony. These concerns impel us to counsel the parties

and the district court to move forward as swiftly as possible to

cross the threshold of constitutional adequacy so that federal

judicial involvement may cease. For now, however, we accept the

well-documented judgment of the district court — a court intimately

acquainted with the details of this litigation and the intricacies

of the Puerto Rican correctional system — that inmate health care

remains constitutionally unacceptable and that the privatization

remedy holds promise for bringing inmate health care into compliance

with constitutionally mandated standards.8 Consequently, we reject

the Secretary's current effort to vacate or terminate the existing

consent decree.

We add a few words of caution. There are now significant

financial reserves (in the form of accumulated fines) available for

improvements in health care delivery, and the AOC seems willing to

8
Should the circumstances change, or a substantial interval
pass without significant progress, the Secretary is, of course,
free to ask the lower court to reexamine these findings and
reconsider the advisability of the ordered relief.

-38-
work for change. We urge the district court to move toward

extricating itself from the toils of this litigation as soon as it

can do so without defaulting on its responsibilities under the

Constitution.

We need go no further. For the foregoing reasons, we

affirm the district court's denial of the Secretary's motion to

vacate or terminate the pertinent portions of the existing consent

decree. We take no view of the district court's procedural order,

see supra Part II, as we lack jurisdiction to review that order on

this interlocutory appeal.

Affirmed. Costs shall be taxed in favor of the

plaintiffs.

-39-