912 F.3d 486

CALLAHAN, Circuit Judge, concurring in part and dissenting in part:
I concur in the majority's conclusion as to subject matter and appellate jurisdiction for the three appeals. I also concur in the majority's conclusion that the district court erred in interpreting the subclass to include all close custody inmates not otherwise participating in a prison jobs program (Part VI of the majority opinion). However, I cannot agree with the majority's disposition of the staffing appeal and the outside providers appeal (Parts IV and V, respectively). I would affirm the district court's February 3, 2017 staffing order and reverse the district court's November 10, 2016 outside providers order.
I.
The district court's role in this case is purely to interpret and enforce the terms of the Stipulation. Although the Stipulation authorizes the district court to remedy non-compliance, at the bargaining table, the parties removed one particular "tool," as the district court put it, from the court's "remedial toolbox." The Stipulation expressly prohibits the court from "order[ing] Defendants to ... hire a specific number or type of staff unless Defendants propose to do so as part of a plan to remedy a failure to comply with any provision of this Stipulation." The majority concludes that although the Stipulation prevents the district court from ordering Defendants to hire a specific number of staff, the court may order Defendants to increase staffing in general. I cannot agree. Instead, I agree with the district court's interpretation of the Stipulation that the court may not do indirectly what the Stipulation prohibits it from doing directly.
The majority states that a general staffing order would preserve Defendants' discretion to determine the exact number and type of staff to hire. But, assuming the court has the power to issue a general staffing order, the court presumably would not (and, arguably, could not) approve a proposed staffing plan unless it were to deem the plan adequate. Certainly, a vague statement by Defendants that they would "increase" staffing in some undisclosed way would not be deemed adequate. Rather, the adequacy of a general staffing order could not be determined without considering the number and type of staff. Additionally, under the majority's rationale, if Defendants' compliance were to remain unsatisfactory after an increase in staff, nothing would prevent the court from again deeming staffing inadequate and again ordering a "general" staffing increase. This process could continue until the court finally deems staffing adequate. Perhaps other than being much more costly, such a protracted process-whereby the court effectively tells Defendants to "keep trying" over-and-over until they have sufficiently increased staffing-bears no meaningful difference from directly ordering Defendants to hire a specific number of staff.
I agree with the district court that an order to develop a plan to increase staffing in general is the "functional equivalent" of an order requiring a specific number and type of staff, which the Stipulation prohibits. I would thus affirm the district court's February 3, 2017 order.
II.
I cannot agree with the majority's decision to affirm the outside providers order. The majority rejects Defendants' argument that the order effectively requires 100 percent compliance, contrary to the 80 percent benchmark provided in the Stipulation. But the majority's interpretation of the order conflicts with Judge Duncan's own interpretation of his order. At the November 9, 2016 hearing where Judge Duncan announced his intention to order Defendants to use outside providers, he stated that he was requiring 100 percent compliance. Likewise, in his order denying Defendants' Rule 60(b) motion, Judge Duncan characterized the outside providers order as "requir[ing] Defendants to pursue 100% compliance." I would defer to Judge Duncan's own interpretation of his order and agree with Defendants that such a ruling erroneously modifies the Stipulation.
Its issuance of the outside providers order one day after orally announcing the intended decision also prevented the district court from adequately taking into account the security risks created by ordering Defendants to transport hundreds of inmates on a daily basis to outside medical facilities. In my view, the majority is too quick to dismiss this concern.
I would thus reverse the district court's November 10, 2017 outside providers order.
III.
For the foregoing reasons, I would affirm the staffing order and reverse the outside providers order. I otherwise concur in the majority's opinion.
Defendants and the majority note that the district court asked Defendants to present evidence that the close custody inmates were subject to "substantially different" conditions than the maximum custody inmates. Defendants and the majority contend that this impermissibly expanded the subclass. We need not reach this issue. As discussed infra , the district court concluded that Defendants did not present sufficient evidence that close custody inmates were offered more than 14 hours of out-of-cell time each week-thereby placing them within the subclass definition agreed to by Defendants. The district court did not need to find that close custody inmates were subject to "substantially similar conditions" as maximum custody inmates; it found that they were subject to the same conditions.

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