Full opinion text
OPINION AND ORDER DENYING DEFENDANTS’ MOTION TO VACATE OR MODIFY POPULATION REDUCTION ORDER On January 7, 2013, defendants filed a Motion to Vacate or Modify Population Reduction Order. Defs.’ Mot. to Vacate or Modify Population Reduction Order (ECF No. 2506/4280) (“Three-Judge Motion”). Defendants contend that a significant and unanticipated change in facts renders inequitable our June 30, 2011 Population Reduction Order (amended as of January 29, 2013) (“Order”). They request a complete vacatur of our Order under Federal Rule of Civil Procedure 60(b)(5). On January 29, 2013, this Court stayed consideration of the Three-Judge Motion. This Court now lifts that stay and DENIES defendants’ Three-Judge Motion. On February 12, 2013, plaintiffs filed a cross-motion requesting this Court to order defendants to develop institution-specific population caps. Pis.’ Opp’n to Three-Judge Mot. and Cross-Mot. for Additional Relief (ECF No. 2528/4331) (“Pis.’ Opp’n” and/or “Cross-Mot.”). This Court DENIES plaintiffs’ Cross-Motion. Defendants must immediately take all steps necessary to comply with this Court’s June 30, 2011 Order, as amended by its January 29, 2013 Order, requiring defendants to reduce overall prison population to 137.5% design capacity by December 31, 2013. We issue a separate order to that effect concurrently herewith. 1. PROCEDURAL HISTORY Given the lengthy history of this case, a brief (or not-so-brief) synopsis is in order. Defendants seek vacatur of a population reduction order that this Court issued in order to provide remedial relief for Eighth Amendment violations found in two independent legal proceedings. Aug. 4, 2009 Op. & Order, 922 F.Supp.2d 882, 919, 2009 WL 2430820 (ECF No. 2197/3641). The first, Coleman v. Brown, began in 1990 and concerns California’s failure to provide constitutionally adequate mental health care to its mentally ill prison population. The second, Plata v. Brown, began in 2001 and concerns the state’s failure to provide constitutionally adequate medical health care to its prison population. In both cases, the district courts found constitutional violations and ordered injunctive relief. As time passed, however, it became clear that no relief could be effective in either case absent a reduction in the prison population. Congress restricted the ability of federal courts to enter a population reduction order in the Prison Litigation Reform Act of 1996 (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (codified in relevant parts at 18 U.S.C. § 3626); Aug. 4, 2009 Op. & Order, 922 F.Supp.2d at 917-18, (ECF No. 2197/3641) (explaining why a population reduction order is a “prisoner release order,” as defined by the PLRA, 18 U.S.C. § 3626(g)(4)). Such relief can be provided only by a specially convened three-judge court after it has made specific findings. 18 U.S.C. § 3626(a). In 2006, the plaintiffs in Coleman and Plata independently filed motions to convene a three-judge court to enter a population reduction order. Both courts granted plaintiffs’ motions and recommended that the cases be assigned to the same three-judge court “[f]or purposes of judicial economy and avoiding the risk of inconsistent judgments.” July 23, 2007 Order in Plata, 2007 WL 2122657, at *6; July 23, 2007 Order in Coleman, 2007 WL 2122636, at *8; see also Brown v. Plata, — U.S. -, 131 S.Ct. 1910, 1922, 179 L.Ed.2d 969 (2011) (“Because the two cases are interrelated, their limited consolidation for this purpose has a certain utility in avoiding conflicting decrees and aiding judicial consideration and enforcement.”). The Chief Judge of the United States Court of Appeals for the Ninth Circuit agreed and, on July 26, 2007, convened the instant three-judge district court pursuant to 28 U.S.C. § 2284. A. This Court’s August 2009 Opinion & Order In August 2009, after a fourteen-day trial, this Court issued an Opinion & Order designed to remedy the ongoing constitutional violations with respect to both medical and mental health care in the California prison system. The order directed defendants, including the Governor, then Arnold Schwarzenegger, and the Secretary of the California Department of Rehabilitation and Corrections (“CDCR”), then Matthew Cate, to reduce the institutional prison population to 137.5% design capacity within two years. This Court made extensive findings, as set forth in our 184-page opinion. We repeat here only those findings that are necessary or relevant to the determination of the motions pending before us. First, based on the testimony of seven expert witnesses (including Jeffrey Beard ), the defendants’ own admissions, and the extensive data on prison crowding in the record, this Court found that “crowding is the primary cause of the violation of a Federal right.” 18 U.S.C. § 3626(a)(3)(E)(i). Indeed, we devoted approximately 25% of our Opinion — 46 out of 184 pages — to demonstrating how “crowding creates numerous barriers to the provision of medical and mental health care that result in the constitutional violations .... ” Aug. 4, 2009 Op. & Order, 922 F.Supp.2d at 921, (ECF No. 2197/3641); see id. at 920-51. Two barriers were particularly important. First, a lack of treatment space “prevent[ed] inmates from receiving the care they require.” Id. at 921. Second, “[crowding also rendered] the state incapable of maintaining an adequate staff.” Id. In short, because California had too many prisoners, it lacked the staff and space to provide constitutionally adequate medical health care and mental health care. Second, after finding that “no other relief will remedy the violation of the Federal right,” 18 U.S.C. § 3626(a)(3)(E)®), Aug. 4, 2009 Op. & Order, 922 F.Supp.2d at 918, (ECF No. 2197/3641), this Court faced the challenging question of designing an order that was “narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and [was] the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A). In this context, this meant determining the population level at which defendants could begin to provide constitutionally adequate medical and mental health care. It was a predictive judgment that, as we acknowledged, was “not an exact science.” Aug. 4, 2009 Op. & Order, 922 F.Supp.2d at 965, (ECF No. 2197/3641) (quoting plaintiffs’ expert, Dr. Craig Haney). Accordingly, this Court considered the testimony of various experts. Many of these experts believed that a prison population at 100% design capacity was required. Plaintiffs’ experts, however, sought a population cap at 130% design capacity, believing that constitutional care could be provided at that population level. Defendants, meanwhile, suggested that if ordered, a population cap at 145% design capacity was the most acceptable, citing a single analysis by the Corrections Independent Review Panel in 2004. The Panel’s analysis, however, suffered from a “potentially fatal flaw,” id. at 968, in that it failed to account for the ability to provide medical and mental health care. As this was the critical question, this Court found that “the Panel’s 145% estimate clearly exceeds the maximum level at which the state could provide constitutionally adequate medical and mental health care in its prisons.” Id. at 968. Evaluating the expert evidence in light oi the caution demanded by the PLRA, this Court decided to impose a population cap of 137.5% design capacity. Id. at 967. Third, this Court gave “substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” 18 U.S.C. § 3626(a)(1)(A). In fact, we devoted 10 days out of the 14-day trial to the issue of public safety; we also devoted approximately 25% of our Opinion — 49 out of 184 pages — to it. We concluded that the evidence clearly established that “the state could comply with our population reduction order without a significant adverse impact upon public safety or the criminal justice system’s operation.” Aug. 4, 2009 Op. & Order, 922 F.Supp.2d at 969, (ECF No. 2197/3641). Specifically, we identified a variety of measures to reduce prison population: (1) early release through the expansion of good time credits; (2) diversion of technical parole violators; (3) diversion of low-risk offenders with short sentences; (4) expansion of evidence-based rehabilitative programming in prisons or communities; and (5) sentencing reform and other potential population reduction measures. Id. at 974-87. After evaluating the testimony and evidence — including the fact that many of the identified measures had been successfully implemented in other jurisdictions without any meaningful harm — we found that all of these measures could be implemented without adversely affecting public safety or the operation of the criminal justice system. Id. at 987-1002. Indeed, given the criminogenic nature of overcrowded prisons, id. at 971-74, substantial evidence supported the conclusion “that a less crowded prison system would in fact benefit public safety and the proper operation of the criminal justice system.” Id. at 1001. Finally, but perhaps most important, expert testimony— specifically the report of the Expert Panel on Adult Offender Recidivism Reduction Programming — supported the conclusion that these measures could, if implemented in combination, sufficiently reduce prison population to within the range necessary to comply with a 137.5% population cap. Id. at 1001-02. This Court did not, however, order defendants to adopt any one of these measures. This Court role’s was merely to determine that defendants could comply with the population reduction order. The question of how to do so was properly left to defendants. Defendants timely appealed to the Supreme Court. B. The Supreme Court’s June 2011 Opinion In June 2011, the Supreme Court affirmed this Court’s order in full. Again, we repeat here only those portions of the Supreme Court opinion that are relevant to the motions pending before us. First, with respect to the question of whether overcrowding was the primary cause of ongoing constitutional violations, the Supreme Court noted with approval the extensive evidence presented in our Opinion & Order — specifically, the high rates of vacancy for medical professions, the lack of physical space, and the testimony from experts who testified that crowding was the primary cause of the failure to provide constitutionally adequate medical and mental health care. Plata, 131 S.Ct. at 1932-34. In light of this evidence, the Supreme Court deferred to this Court’s factual determination that overcrowding was the primary cause of ongoing constitutional violations. Id. at 1932 (“With respect to the three-judge court’s factual findings, this Court’s review is necessarily deferential. It is not this Court’s place to ‘duplicate the role’ of the trial court. The ultimate issue of primary cause presents a mixed question of law and fact; but there, too, ‘the mix weighs heavily on the fact side.’ Because the ‘district court is better positioned ... to decide the issue,’ our review of the three-judge court’s primary cause determination is deferential.” (internal citations omitted)). Second, with respect to this Court’s determination that a prison population of 137.5% design capacity was necessary in order to begin to solve the ongoing constitutional violations, the Supreme Court was even more solicitous. The Supreme Court began its discussion by stating: Establishing the population at which the State could begin to provide constitutionally adequate medical and mental health care, and the appropriate time frame within which to achieve the necessary reduction, requires a degree of judgment. The inquiry involves uncertain predictions regarding the effects of population reductions, as well as difficult determinations regarding the capacity of prison officials to provide adequate care at various population levels. Courts have substantial flexibility when making these judgments. “Once invoked, ‘the scope of a district court’s equitable powers ... is broad, for breadth and flexh bility are inherent in equitable remedies.’ ” Hutto [v. Finney, 437 U.S. 678, 687, n. 9, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978) ] (quoting Milliken v. Bradley, 433 U.S. 267, 281, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977), in turn quoting Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 15, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971)). Id. at 1944. The Supreme Court described the evidence before us, much of which supported “an even more drastic remedy,” id. at 1945, i.e., a population cap lower than 137.5% design capacity: Because our Court had closely considered all the. evidence, the Supreme Court affirmed our determination that 137.5% was the correct figure, stating that “[tjhere are also no scientific tools available to determine the precise population reduction necessary to remedy a constitutional violation of this sort. The three-judge court made the most precise determination it could in light of the record before it.” Id. Third, the Supreme Court recognized that this Court had extensively considered the question of public safety. Id. at 1941 (“The court devoted nearly 10 days of trial to the issue of public safety, and it gave the question extensive attention in its opinion.”). . It expressly noted the evidence cited in our Opinion & Order that other jurisdictions had reduced prison population without adversely affecting public safety. Id. at 1942-43. It also listed the measures identified in our Opinion & Order as “various available methods of reducing overcrowding [that] would have little or no impact • on public safety.” Id. at 1943. Specifically, the Supreme Court stated that “[expansion of .goodAime credits would allow the State to give early release to only those prisoners who pose the least risk of reoffending.” Id. Again, the Supreme Court deferred to our Court’s factual determination, especially as our finding was informed by many experts who “testified on the basis of empirical evidence and extensive experience in the field of prison administration.” Id. at. 1942. Throughout its opinion, the Supreme Court expressly and repeatedly noted the flexibility of our order, which did not “limit[] the State’s authority to run its prisons.” Id. at 1941. By adopting a population percentage (not a strict number of prisoners to release), our order permits defendants to “choose whether to increase the prisons’ capacity through construction or reduce the population.” Id. at 1941; see also id. at 1937-38 (explaining that defendants can also comply through “new construction” and “out-of-state transfers”). Additionally, by identifying various measures by which defendants could reduce the prison population, our order “took account of public safety concerns by giving the State substantial flexibility to select among these and other means of reducing overcrowding.” Id. at 1943. Furthermore, our order, by not selecting particular classes of prisoners to be released, “g[ave] the State substantial flexibility to determine who should be released.” Id. at 1940. Finally, because our order is systemwide, “it affords the State flexibility to accommodate differences between institutions.” Id. at 1940-41. The Supreme Court stated — even more directly than our Court did — that if defendants fail to take advantage of the flexibility that our order permits, they will be required to release some prisoners: The order leaves the choice of means to reduce overcrowding to the discretion of state officials. But absent compliance through new construction, out-of-state transfers, or other means — or modification of the order upon a further showing by the State — the State will be required to release some number of prisoners before their full sentences have been served. Id. at 1923. In such an instance, this Court is empowered to order defendants to develop a plan for the release of prisoners who pose the lowest risk for public safety: The three-judge court, in its discretion, may also consider whether it is appropriate to order the State to begin without delay to develop a system to identify prisoners who are unlikely to reoffend or who might otherwise be candidates for early release. Even with an extension of time to construct new facilities and implement other reforms, it may become necessary to release prisoners to comply with the court’s order. To do so safely, the State should devise systems to select those prisoners least likely to jeopardize public safety. An extension of time may provide the State a greater opportunity to refine and elaborate those systems. Id. at 1947. In short, our order — and the Supreme Court’s affirmance of our order — left the question of how to comply in the discretion of defendants, but not the question of whether to comply. In the final section of its opinion, the Supreme Court discussed the possibility of defendants seeking modification of our order. The Supreme Court was specifically addressing defendants’ challenge to the portion of this Court’s order requiring them to achieve a prison population of 137.5% design capacity within two years. Id. at 1945. The Supreme Court affirmed this aspect of our order principally because defendants had not requested — either at trial or on appeal — an extension of the two-year timeline. Id. at 1945 (“At trial and closing argument before the three-judge court, the State did not argue that reductions should occur over a longer period of time.”); id. at 1946 (“Notably, the State has not asked this Court to extend the 2-year deadline at this time.”). The Supreme Court also noted that, because our order was stayed pending appeal, defendants effectively will have had four years in which to comply. Id. at 1946 (“The 2-year deadline, however, will not begin to run until this Court issues its judgment. When that happens, the State will have already had over two years to begin complying with the order of the three-judge court.”). Immediately after affirming this Court’s two-year timeline, the Supreme Court discussed the possibility of modification: The three-judge court, however, retains the authority, and the responsibility, to make further amendments to the existing order or any modified decree it may enter as warranted by the exercise of its sound discretion. “The power of a court of equity to modify a decree of injunctive relief is long-established, broad, and flexible.” New York State Assn. for Retarded Children, Inc. v. Carey, 706 F.2d 956, 967 (C.A.2 1983) (Friendly, J.). A court that invokes equity’s power to remedy a constitutional violation by an injunction mandating systemic changes to an institution has the continuing duty and responsibility to assess the efficacy and consequences of its order. Id., at 969-971. Experience may teach the necessity for modification or amendment of an earlier decree. To that end, the three-judge court must remain open to a showing or demonstration by either party that the injunction should be altered to ensure that the rights and interests of the parties are given all due and necessary protection. Id. at 1946. If defendants believe that a change has occurred “regarding the time in which a reduction in the prison population can be achieved consistent with public safety,” “[a]n extension of time may allow the State to consider changing political, economic, and other circumstances and to take advantage of opportunities for more effective remedies that arise as the Special Master, the Receiver, the prison system, and the three-judge court itself evaluate the progress being made to correct unconstitutional conditions.” Id.; see also id. at 1947 (“An extension of time may provide the State a greater opportunity to refíne and elaborate those [systems to select those prisoners least likely to jeopardize public safety].”). Public safety was not the only rationale mentioned by the Supreme Court as a basis for modification. The Supreme Court also stated: If significant progress is made toward remedying the underlying constitutional violations, that progress may demonstrate that further population reductions are not necessary or are less urgent than previously believed. Were the State to make this showing, the three-judge court in the exercise of its discretion could consider whether it is appropriate to extend or modify this timeline. Id. at 1947 (emphasis added). The Supreme Court concluded by reminding this Court that, if defendants request modification, we “should give any such requests serious consideration.” Id. C. Three-Judge Court Proceedings since June 2011 Having been affirmed, our Court issued an order setting the following schedule by which defendants must reduce the prison population to 137.5% design capacity within two years: Defendants must reduce the population of California’s thirty-three adult prisons as follows: a. To no more than 167% of design capacity by December 27, 2011. b. To no more than 155% of design capacity by June 27, 2012. c. To no more than 147% of design capacity by December 27, 2012. d. To no more than 137.5% of design capacity by June 27, 2013. June 30, 2011 Order Requiring Interim Reports at 1-2 (ECF No. 2374/4032). Defendants were also ordered to file detailed reports at the end of each of the six-month intervals, advising this Court whether they were able to achieve the required population reduction and, if not, why this was the case and what measures they have taken or propose to take to remedy the failure. Id. at 2. Defendants were also ordered to file monthly reports with “a discussion on whether defendants expect to meet the next six-month benchmark and, if not, what further actions are contemplated and the specific persons responsible for executing those actions.” Id. at 3. Defendants informed this Court that they would accomplish the population reduction primarily through Assembly Bill 109, often referred to as “Realignment.” Defs.’ Resp. to Jan. 12, 2010 Court Order (ECF No. 2365/4016). Realignment would shift responsibility for criminals who commit “non-serious, non-violent, and nonregisterable sex crimes” from the state prison system to county jails. This would apply both to incarceration and parole supervision and revocation, and to current and future inmates convicted of such crimes. Defs.’ Resp. to June 30, 2011 Court Order (ECF No. 2387/4043). Realignment came into effect in October 2011, and its immediate effects were highly productive, as thousands of inmates either serving prison terms or parole revocation terms for “non-serious, non-violent, and non-registerable sex crimes” were shifted to county jails. Defendants were thus able to comply with the first benchmark, albeit shortly after the deadline. Defs.’ Jan. 6, 2012 Status Report (ECF No. 2411/4141). It also appeared that Defendants would easily meet the second benchmark and would likely meet the third benchmark. Id. It soon became equally apparent, however, that Realignment was not sufficient on its own to achieve the 137.5% benchmark by June 2013 or to meet the ultimate population cap at any time thereafter, in the absence of additional actions by defendants. In February 2012, plaintiffs filed a motion requesting this Court to order defendants to demonstrate how they intended to meet the 137.5% figure by June 2013. Pis.’ Mot. for an Order Requiring Defs. to Demonstrate How They Will Achieve the Required Population Reduction by June 2013 (ECF No. 2420/4152). Plaintiffs argued that, based on CDCR’s own population projections (as of Fall 2011), defendants would not achieve a prison population of 137.5% by June 2013. Id. at 2-3. Defendants responded that, because the Fall 2011 projections predated the implementation of Realignment, they were not reliable. Defs.’ Opp’n to Pis.’ Mot. for Increased Reporting in Excess of the Court’s June 30, 2011 Order at 2-3 (ECF No. 2423/4162). They stated that the forthcoming Spring 2012 population projections would give a more accurate indication of whether defendants would meet the 137.5% figure by June 2013. Id. at 4. This Court accepted defendants’ representations and denied plaintiffs’ motion without prejudice to the filing of a new motion after CDCR published the Spring 2012 population projections. Mar. 22, 2012 Order Denying Pis.’ Feb. 7, 2012 Mot. (ECF No. 2428/4169). In May 2012, plaintiffs renewed their objection. Pis.’ Renewed Mot. for an Order Requiring Defs. to Demonstrate How They Will Achieve the Required Population Reduction by June 2013 (ECF No. 2435/4180). Plaintiffs correctly observed that, despite defendants’ assurances that the Fall 2011 projections were outdated and unreliable, the Spring 2012 population projections were not substantively different. Id. at 3-4. Plaintiffs also pointed to a new public report issued in the intervening months, titled “The Future of California Corrections” (known as “The Blueprint”), in which defendants stated that they would not meet the 137.5% figure by June 2013 and announced their intention to seek modification of this Court’s Order. See CDCR, The Future of California Corrections: A Blueprint to Save Billions of Dollars, End Federal Court Oversight, and Improve the Prison System, Apr. 2012 (“CDCR Blueprint”). Based on this evidenee, plaintiffs repeated their request that this Court order defendants to demonstrate how. they would comply with this Court’s June 30, 2011 Order. Pis.’ Renewed Mot. for an Order Requiring Defs. to Demonstrate How They Will Achieve the Required Population Reduction by June 2013 at 5-6 (ECF No. 2435/4180). They further contended that defendants’ delaying tactics and “failure to take reasonable steps to avert a violation of this Court’s Order would amount to contempt of court.” Id. at 6. Defendants’ responsive filing confirmed their intent to seek modification of the Court’s Order from 137.5% design capacity to 145% design capacity. Defs.’ Opp’n to Pis.’ Renewed Mot. for an Order Requiring Defs. to Demonstrate How They Will Achieve the Required Population Reduction by June 2013 at 2 (ECF No. 2442/4191). Defendants also stated that they did not believe it was appropriate for them to demonstrate how they will achieve 137.5% if they intended to seek modification of that requirement. Id. at 7-8. Defendants responded to the contempt allegation by stating that there is “no doctrine of ‘anticipatory contempt.’ ” Id. at 7 (quoting United States v. Bryan, 339 U.S. 323, 341, 70 S.Ct. 724, 94 L.Ed. 884 (1950)). This Court ordered supplemental briefing on defendants’ anticipated motion to modify. June 7, 2012 Order Requiring Further Briefing (ECF No. 2445/4193); Aug. 3, 2012 2d Order Requiring Further Briefing (ECF No. 2460/4220). We asked defendants to identify the legal basis for the intended modification, to set forth the factual basis' for their modification request, and to answer additional factual questions. Aug. 3, 2012 .Order at 3-4 (ECF No. 2460/4220). Additionally, because defendants had suggested that they were not currently on track to reduce prison population to 137.5% design capacity, this Court asked the following: [I]f the Court ordered defendants “to begin without delay to develop a system to identify prisoners who are unlikely to reoffend or who might otherwise be candidates for early release,” Plata, 131 S.Ct. at 1947, by what date would they be able to do so and, if implemented, how long would it take before the prison population could be reduced to 137.5%? By what other means could the prison population be reduced to 137.5% by June 27, 2013? Alternatively, what is the earliest time after that date that defendants contend they could comply with that deadline? Id. at 4. This Court further stated that, until such time as this Court declares otherwise, “defendants shall take all steps necessary to comply with the Court’s June 30, 2011 order, including the requirement that the prison population be reduced to 137.5% by June 27, 2013.” Id. Defendants’ responsive briefing identified Federal Rule of Civil Procedure 60(b)(5) as the legal basis for their intended modification request. Defs.’ Resp. to Aug. 3, 2012 2d Order Requiring Further Briefing at 1-3 (ECF No. 2463/4226).. As their factual basis, defendants stated that they would seek to prove that Eighth Amendment compliance could be achieved with a prison population higher than 137.5% design capacity. Id. at 6 (“Defendants’ motion will demonstrate that a population density of 145% does not prohibit Defendants from providing constitutionally adequate care.”). Defendants defiantly refused to answer the final question as to when they would be able to comply with our June 30, 2011 Order, contending that our inquiry — in which we quoted the Supreme Court opinion — was not authorized by the Supreme Court and that it was not necessary to respond because they believed our Order should be dissolved. Id. at 11-12. Defendants did appear to state, however, that, if the motion to modify were to be denied, they could comply with a six-month extension. Id. at 12 (“If the Court for some reason disagrees and insists that the final benchmark cannot be modified, Defendants’ only method of achieving the 137.5% target, without the early release of prisoners or further legislative action to shorten prison time, would be to maintain the out-of-state program. If the Court were to order that the current out-of-state capaeity .be maintained and waived the associated state laws, the prison population should reach 137.5% by December 31, 2013.”). Defendants offered no explanation, however, why they could not release low-risk prisoners early or obtain any necessary legislative action for other measures identified in our June 2011 Order. Plaintiffs again asked this Court to find defendants in contempt, because defendants refused to answer a material question we asked of them and because “Defendants have all but stated that they have no intention of complying with this part of the Court’s Orders.” Pis.’ Request for Disc. & Order .to Show Cause Re: Contempt at 1 (ECF No. 2467/4230). In September 2012, this Court ruled on the pending motions. Sept. 7, 2012 Order Granting in Part & Denying in Part Pis.’ May 9 and Aug. 22, 2012 Mots. (ECF No. 2473/4235), 2012 WL 3930635. We stated that the question whether Eighth Amendment compliance could be achieved with a prison population higher than 137.5% design capacity “has already been litigated and decided by this Court and affirmed by the Supreme .Court, and this Court is not inclined to permit relitigation of the proper population cap at this time.” Id. at 2-3. Accordingly this Court stated that ■ we were “not inclined to entertain a motion to modify the 137.5% population cap based on the factual circumstances identified by defendants.” Id. at 2. This Court further stated that we will, “however, entertain a motion to extend the deadline for compliance with the June 30, 2011 order.”■■ Id. at 3. We also ordered defendants to answer the question to which they had failed to respond, id. at 3, and we further asked whether “the Governor has the authority ... under the existing emergency proclamation concerning prison overcrowding” to implement the methods identified "in our prior opinion for reducing the prison population to 137.5% design capacity. Id. at 3-4 Defendants filed a response in which they answered the aforementioned questions. Specifically, they stated that they would need six months to develop a program for releasing low-risk offenders. Defs.’ Resp. to Sept. 7, 2012 Order at 5 (ECF No. 2479/4243). Additionally, they contended that the available options to achieve 137.5% prison population were limited, partly because they had implemented many of the methods identified in our pri- or opinion through Realignment and partly because the remaining methods— sentencing reform and further expansion of good time credits — required legislative approval. Id. at 3-5; see also id. at 4-5 (“[I]t appears unlikely that the existing emergency proclamation confers the Governor with unilateral authority to implement expansion of good time credits or sentencing reform.”). Nevertheless, defendants advised us that they could comply with a six-month extension, largely by maintaining the out-of-state program. Id. at 6 (“Based on the Spring 2012 population projections, by increasing capacity "when the California Health Care Facility in Stockton opens and maintaining the out-of-state program, the prison population will reach 137.5% by December 31, 2013.”). Plaintiffs filed a response in which they contended that compliance was far easier than defendants suggested. Pis.’ Resp. to Defs.’ Resp. to Sept. 7, 2012 Order (ECF No. 2481/4247). According to plaintiffs, it would not take six months “to identify low risk prisoners and develop a good-time credit program.” Id. at 3. Plaintiffs contended that defendants already had risk instruments by which they could identify low risk prisoners for release and that implementing a good time credit program was quite straightforward. Id. Moreover, plaintiffs noted that defendants “made no effort to seek the needed legislation” on good time credits or sentencing reform. Id. at 2. Nevertheless, it appeared, from the parties’ filings, that resolution was not far off. Even defendants acknowledged that they could comply by December 2013. The parties disagreed, but perhaps not irreconcilably, over whether defendants could comply by the original date for compliance, June 2013. Accordingly, in October 2012, this Court ordered both parties to meet and confer, to develop, and to submit (preferably jointly) “plans to achieve the required population reduction to 137.5% design capacity by (a) June 27, 2013, and (b) December 27, 2013.” Oct. 11, 2012 Order to Develop Plans to Achieve Required Prison Population Reduction at 1 (ECF No. 2485/4251). We asked the parties to include in their plans a discussion of “all of the alternatives that this Court, affirmed by the Supreme Court, found could be implemented without an adverse impact on public safety or the operation of the criminal justice system.” Id. at 1-2. We asked how compliance could be achieved if defendants returned out-of-state prisoners. Id. at 2. We further inquired whether any of these alternatives required the waiving of state law or whether they could be achieved by the Governor under his emergency powers. Id. (“Defendants shall identify in their filing, whether joint or separate, which, if any, state laws would have to be waived for the provisions proposed jointly or by either party. Defendants shall also specify which of these laws may be waived by the Governor and which, if any, it contends that this Court is without authority to waive. Defendants shall provide justifications for their assertions, and plaintiffs may state their objections to defendants’ contentions.”). Finally, we informed the parties “that the Honorable Peter Siggins remains available to assist the parties during the meet-and-confer process.” Id. at 3. The plans were due on January 7, 2013. In mid-November 2012, defendants advised this Court that they would miss the third benchmark, i.e., they would not achieve a prison population of 147% by December 2012. Accordingly, they sought modification of our June 30, 2011 Order by extending the 147% and the 137.5% requirement by six months each. Defs.’ Nov. 2012 Status Report & Mot. to Modify June 30, 2011 Order (ECF No. 2494/4259). Plaintiffs opposed the modification, stating that “Defendants’ defiant position is only the latest in a long string of filings in which they announce that they will maintain the prison population above the court-ordered cap.” Pis.’ Opp’n to Mot. to Modify & Order to Show Cause Re: Contempt at 1 (ECF No. 2497/4264). Plaintiffs again requested this Court to issue an order to show cause regarding contempt. Id. at 1-3. This Court, being more interested in the January 7 filings, denied most of both parties’ requests. Dec. 6, 2012 Order Denying Defs.’ Mot. for Six-Month Extension & Pis.’ Mot. for Order to Show Cause Re: Contempt (ECF No. 2499/4269). With regard to defendants’ request for a six-month extension of the 137.5% benchmark, we denied the request as premature because the issue was to be addressed in the January 7 filings. Id. at 2. With regard to defendants’ request for a six-month extension of the 147% benchmark, we granted defendants’ request to be relieved of their obligation to file a report. As we stated: While the Court is concerned that defendants have not done everything in their power to achieve the 147% benchmark, the Court is more interested at this time in the additional steps that defendants will take to achieve the final 137.5% benchmark. Id. We then denied plaintiffs’ contempt motion as premature. Id. In concluding, we stated: Defendants correctly observe that substantial progress has been made as a result of this Court’s orders and the Supreme Court’s affirmance of the population reduction order. However, much work remains to be done, and defendants must take further steps to achieve full compliance. The Court expects the parties’ proposed plans to provide a specific means for doing so, while providing all the specific information called for in this Order as well as in the October 11, 2012 Order, including without limitation paragraph four of the October Order [in which we inquired whether any of the population reduction measures could be achieved by the Governor under his emergency powers]. Id. at 2-3. On January 7, 2013, both parties filed plans to meet the 137.5% population cap. Defendants’ plan suggested that, although compliance by June 2013 would require the outright release of thousands of prisoners, compliance by December 2013 would require virtually no release of prisoners. Defs.’ Resp. to Oct. 11, 2012 Order (ECF No. 2511/4284). Plaintiffs disputed this and contended that defendants could easily comply by June 2013. Pis.’ Statement in Resp. to Oct. 11, 2012 Order Re: Population Reduction (ECF No. 2509/4283). Defendants further contended that virtually every measure identified in their plans required the waiver of state laws, some of which — they asserted — this Court was without power to waive. Furthermore, despite our explicit reminder that defendants were obligated to advise this Court which, if any, of the potential measures could be implemented under the Governor’s emergency powers, defendants made no answer, although they had previously stated that the current out-of-state prisoner placement program was the only method of meeting the 137.5% goal “without the early release of prisoners or further legislative action to shorten prison time.” Defs.’ Resp. to Aug. 3, 2012 2d Order Requiring Further Briefing at 12 (ECF No. 2463/4226). The Governor had the authority to continue the out-of-state program under his then-existing emergency powers. Instead of answering our question, the Governor terminated his emergency powers, arrogating unto himself the authority to declare, notwithstanding the orders of this Court, that the crisis in the prisons was resolved. Gov. Edmund G. Brown Jr., A Proclamation by the Governor of the State of California, Jan. 8, 2013 (“[P]rison crowding no longer poses safety risks to prison staff or inmates, nor does it inhibit the delivery of timely and effective health care services to inmates.”) (“Gov. Brown, Jan. 8, 2013 Proclamation”). Equally significant for our purposes, defendants also filed on January 7, 2013, motions to terminate the ongoing proceedings. In this Court, defendants filed the Three-Judge Motion, which did not seek modification of the Order to 145% or renew their request to extend the deadline by six months. Rather, defendants requested complete vacatur of our Order. Id at 3. In the Coleman court, defendants also filed a motion to terminate all injunctive relief in that case. Mot. to Terminate & to Vacate J. & Orders (Coleman ECF No. 4275). Notably, defendants did not file a similar motion in the Plata court. This Court ordered supplemental briefing and amended our June 2011 Order. Jan. 29, 2013 Order Re: Three-Judge Mot. (ECF No. 2527/4317). Defendants were ordered to advise the Court whether they intended to file a motion to terminate in Plata. Id at 1-2. In the meantime, this Court stayed consideration of the Three-Judge Motion. Id at 2. Plaintiffs, who had failed to respond to the Three-Judge Motion, were ordered to file a response and provide good cause for their failure to do so by the applicable deadline. Id Finally, defendants — who had stated in their January status report that, despite not being in compliance with this Court’s order, they would take no further action to comply with it, Defs.’ Jan. 2013 Status Report at 1 (ECF No. 2518/4292) (“Based on the evidence submitted in support of the State’s motions, further population reductions are not needed.... ”) — were specifically ordered once again to comply with their continuing obligation to follow this Court’s Order. Jan. 29, 2013 Order at 2 (ECF No. 2527/4317) (“Neither defendants’ filings of the papers filed thus far nor any motions, declarations, affidavits, or other papers filed subsequently shall serve as a justification for their failure to file and report or take any other actions required by this Court’s Order.”). This Court then granted defendants a six-month extension so that they could more easily comply with this Court’s Order. Id at 2-3. In both of defendants’ subsequent status reports, however, they have repeated verbatim the statement from their January status report that they would not make any further attempts to comply with the Order. Defs.’ Feb. 2013 Status Report at 1 (ECF No. 2538/4342) (“Based on the evidence submitted in support of the State’s motions, further population reductions are not needed.... ”); Defs.’ March 2013 Status Report at 1 (ECF No. 2569/4402) (same). Despite our specific reminders, at no point over the past several months have defendants indicated any willingness to comply, or made any attempt to comply, with the orders of this Court. In fact, they have blatantly defied them. On February 12, 2013, plaintiffs filed a response to the Three-Judge Motion and requested additional relief, which we discuss in greater detail below. Pis.’ Opp’n & Cross-Mot. (ECF No. 2528/4331). On the same day, defendants filed a response to our January 29, 2013 order, requesting this Court to lift the stay. Defs.’ Resp. to Jan 29, 2013 Order (ECF No. 2529/4332) (“Defs.’ Resp.”). On February 14, 2013, plaintiffs filed a motion opposing defendants’ request to lift the stay. Pis.’ Opp’n to Defs.’ Mot. to Lift Stay (ECF No. 2535/4338). On February 19, 2013, defendants filed a reply, in which they moved to strike various portions of plaintiffs’ February 12, 2013 response and plaintiffs’ February 14, 2013 opposition. Defs.’ Reply Br. in Supp. of Three-Judge Mot. (ECF No. 2543/4345) (“Defs.’ Reply”). On February 26, 2013, plaintiffs filed a reply. Pis.’ Reply Br. in Supp. of Counter-Mot. (ECF No. 2551/4355). On March 11, 2013, plaintiffs filed a request for leave to file a supplemental brief in opposition to defendants’ Three-Judge Motion and in support of their Cross-Motion. Pis.’ Supp. Br. Re: Mot. to Vacate or Modify (ECF No. 2562/4373). On March 18, 2013, defendants filed a response opposing this request. Defs.’ Opp’n to Pis.’ Supp. Br. Re: Mot. to Vacate or Modify (ECF No. 2573/4415). On March 20, 2013, plaintiffs requested that some of their filings in the Coleman termination proceedings be included as part of the record in this Court. Req. for Pis.’ Coleman Filings to Be Deemed & Considered as Supp. Pleadings in Opp’n to Defs.’ Three-Judge Mot. & in Supp. of Pis.’ Counter-Mot. (ECF No. 2577/4426). Defendants filed an opposition to this request. Defs.’ Opp’n to Pis.’ Req. (ECF No. 2588/4533). The pending matters before this Court are as follows: • Defendants’ Three-Judge Motion, filed on January 7, 2013; • Order to Show Cause against Plaintiffs, filed on January 29, 2013; • Defendants’ Request to Lift Stay, filed on February 12, 2013; • Plaintiffs’ Cross-Motion, filed on February 12, 2013; • Defendants’ Motion to Strike Plaintiffs’ Opposition to Defendants’ Request to Lift Stay, filed on February 19, 2013; • Defendants’ Motions to Strike Portions of Plaintiffs’ Opposition to Three-Judge Motion, filed on February 19, 2013; • Plaintiffs’ Request for Leave to File a Supplemental Brief in Opposition to Defendants Three-Judge Motion and in support of their Counter-Motion, filed on March 11, 2013; and • Plaintiffs’ Request for Coleman Filings to Supplement their Opposition to Defendants’ Three-Judge Motion and in support of their Counter-Motion, filed on March 20, 2013. We decide each of these matters in this Opinion, but withhold for now any order that may be warranted by defendants’ contumacious conduct. II. PRELIMINARY MATTERS Defendants’ Three-Judge Motion and plaintiffs’ Cross-Motion are critical to the outcome of this litigation and we give special consideration to each below. Before doing so, this Court addresses the other pending matters. For the reasons discussed below, this Court first DISCHARGES the order to show cause against plaintiffs. Second, this Court GRANTS defendants’ request to lift the stay on consideration of the Three-Judge Motion. Accordingly, this Court VACATES as moot defendants’ motion to strike plaintiffs’ opposition to defendants’ request to lift the stay and DENIES both of plaintiffs’ requests to supplement their opposition to defendants’ Three-Judge Motion and in support of their Cross-Motion. Third, this Court DENIES defendants’ motions to strike portions of Plaintiffs’ Opposition. A. Order to Show Cause On January 29, 2013, this Court ordered plaintiffs to show cause for their failure to file a timely reply to the Three-Judge Motion. Jan. 29, 2013 Order at 2 (ECF No. 2527/4317). Under our April 25, 2008 Order, plaintiffs were required to file a reply by January 21, 2013 but failed to do so. On February 12, 2013, plaintiffs explained their failure as follows: Plaintiffs incorrectly relied on this Court’s October 10, 2007 Order (Plata Dkt. No. 880) regarding briefing schedules, which [cites to Local Rule 78-230, stating that the court will issue an order establishing a briefing schedule after a motion has been filed]. Plaintiffs neglected to note that the order had been superseded by this Court April 25, 2008 Order. Plaintiffs regret the inconvenience to this Court and to defendants. Pis.’ Opp’n at 27-28 (ECF No. 2528/4331). Defendants respond that this excuse is insufficient, and that we should deem the Three-Judge Motion unopposed and submitted. Defs.’ Reply at 1 n. 1 (ECF No. 2543/4345). Reviewing the matter, this Court elects not to exercise its discretion to find plaintiffs in contempt and DISCHARGES the January 29, 2013 order to show cause. Plaintiffs are reminded, however, to follow this Court’s deadlines in the future. B. Lifting the Stay and Related Matters On January 29, 2013, this Court issued an order staying consideration of the Three-Judge Motion. As we stated in that order, “one of defendants’ principal contentions in the Three-Judge Motion is that there are no ongoing systemwide constitutional violations in medical and mental health care.” Jan. 29, 2013 Order at 1 (ECF No. 2527/4317). Defendants made that same argument with respect to mental health care in the motion to terminate in Coleman. However, defendants had not made the same argument with respect to medical health care in Plata. As we stated in that order, “[i]t would be a waste of judicial resources for this Court to begin to determine any issue until it is made aware of defendants’ filing plans regarding the constitutional question [in Plata.]” Id. at 2. This Court ordered defendants to advise us whether they intended to file a motion to terminate in Plata and, if so, when. Accordingly, we stayed our consideration of the Three-Judge Motion pending an answer as to defendants’ intentions regarding the constitutional question in Plata. On February 12, 2013, defendants requested that this Court lift the stay on the Three-Judge Motion. Defs.’ Resp. at 1 (ECF No. 2529/4332). Specifically, defendants modified their Three-Judge Motion such that it is no longer based on the constitutional question but solely on the claim that “the greatly reduced prison population is [no longer] the primary barrier prohibiting the State from providing constitutionally adequate medical and mental health care.” Id. at 4. Defendants also contend that they have provided sufficient evidence in the Three-Judge Motion to prevail on this claim. Id. at 1 (“It is unnecessary for the State to bring a motion to terminate Plata for this Court to decide the pending motion because more than enough evidence has already been presented.”); id. at 5 (“[T]he State must show — as it has in the motion to vacate— that the greatly reduced current population levels do not prevent the State from providing constitutionally adequate medical and mental health care.”); see generally Defs.’ Reply' at 2-10 (ECF No. 2543/4345) (contending that Defendants have “carried their burden” in the “motion to vacate and accompanying evidence”). In short, defendants assert that, regardless of the state of the health care that is currently being provided, the primary cause of any failure to provide better care is no longer overcrowding. Thus, defendants urge this Court not to delay our adjudication of the Three-Judge Motion and, on the record before us, to vacate the Population Reduction Order of June 30, 2011. Defs.’ Resp. at 4, 6 (ECF No. 2529/4332); Defs.’ Reply at 18-19 (ECF No. 2543/4345) (opposing plaintiffs’ request for discovery as “futile” and urging this Court not to delay). Plaintiffs filed an opposition to lifting the stay on February 14, 2013, Pis.’ Opp’n to Defs.’ Mot. to Lift Stay (ECF No. 2535/4338), and defendants moved to strike this filing on February 19, 2013. Defs.’ Reply at 18-19 (ECF No. 2543/4345). Additionally, defendants have opposed both attempts by plaintiffs to supplement their briefing. Pis.’ Supp. Br. Re: Mot. to Vacate or Modify (ECF No. 2562/4873); Defs.’ Opp’n to Pis.’ Supp. Br. Re: Mot. to Vacate or Modify (ECF No. 2573/4415); Req. for Pis.’ Coleman Filings to Be Deemed and Considered as Supp. Pleadings in Opp’n to Defs.’ Three-Judge Mot. & in Supp. of Pis.’ Counter-Mot. (ECF No. 2577/4426); Defs.’ Opp’n to Pis.’ Req. (ECF No. 2588/4533). This Court agrees with defendants with regard to the procedural status of these matters. Defendants have modified the Three-Judge Motion such that it is based not on the constitutional question but solely on the crowding question. The substantive effect of this modification is discussed infra. The procedural effect is to provide a sufficient basis for lifting the stay of the Three-Judge Motion. This Court therefore GRANTS defendants’ request to lift this Court’s stay of our consideration of the Three-Judge Motion. Accordingly, this Court VACATES as moot defendants’ motion to strike plaintiffs’ opposition to lifting the stay. Additionally, because the burden of proof in justifying vacatur lies with defendants and because defendants have repeatedly contended that they have met that burden based on the evidence filed in conjunction with the Three-Judge Motion, this Court finds that there is no need for discovery. Any pending discovery requests are therefore dismissed, and this Court DENIES both of plaintiffs’ requests to supplement their briefing. C. Motions To Strike Defendants also move to strike two portions of Plaintiffs’ Opposition to the Three-Judge Motion. The first is the section of Plaintiffs’ Opposition relying on the declaration by Steven Fama, who describes recent reports that defendants had filed with the Receiver in which defendants explain the need for further improvements to treatment space in the California prison system. Pis.’ Opp’n at 12-14 (ECF No. 2528/4331); Exs. B to I to Fama Deck in Supp. of Pis.’ Opp’n (ECF No. 2528-2/4331-2). Defendants move to strike this evidence as “inadmissible hearsay and irrelevant.” Defs.’ Reply at 2, 5 n. 2 (ECF No. 2543/4345). The second is the section of Plaintiffs’ Opposition in which plaintiffs argue that the declarations of Robert Barton and Jeffrey Beard are entitled to little weight. Pis.’ Opp’n at 17-18 (ECF No. 2528/4331). Defendants moved to strike these arguments as “scurrilous attacks ... which are unsupported by any evidence.” Defs.’ Reply at 2, 6-7 (ECF No. 2543/4345). Defendants’ motions border on the frivolous. With regard to evidence in the Fama declaration, these reports consist of defendants’ requests for additional funding to increase healthcare infrastructure. Any suggestion that these reports — which demonstrate that defendants themselves represented to other agencies that there is insufficient treatment space in the California prison system — are “irrelevant” to assessing the Three-Judge Motion is clearly meritless. Nor is their admissibility controversial. To begin, defendants relegated this argument to a mere footnote and failed to provide any legal analysis in support of their contention regarding hearsay. It is thereby waived. See Hilao v. Estate of Marcos, 103 F.3d 767, 778 n. 4 (9th Cir. 1996) (“The summary mention of an issue in a footnote, without reasoning in support of the appellant’s argument, is insufficient to raise the issue on appeal.”). Moreover, these CDCR records would appear to fall under an exception to the rule against hearsay — either as the admission of a party opponent under Federal Rule of Evidence 801(d)(2) or as a public record under Federal Rule of Evidence 803(8). Finally, any attempt to exclude such evidence from this Court’s consideration is meaningless in the context of this case. Defendants have already provided these reports to the Receiver. Because the Receiver is an arm of the Court, not only is this Court entitled to consider such evidence, it is prudent for us to do so. With regard to the Barton and Beard declarations, plaintiffs have presented reasoned arguments why some of the statements in these declarations go beyond the expertise and the information available to Barton and Beard — and therefore why this Court should give little weight to those statements. These arguments require no evidence, just logic. We thus find unpersuasive defendants’ contention that these arguments must be struck because they “present no competent evidence to rebut the factual statements in those declarations.” Defs.’ Reply at 7 (ECF No. 2543/4345). Plaintiffs make arguments with which defendants may disagree, but there is simply no legal basis for striking any portion of Plaintiffs’ Opposition. This Court therefore DENIES defendants’ motions to strike, and defendants are advised not to again unnecessarily complicate an already complex case of the utmost public interest with arguments that are patently of little merit. Such arguments serve no purpose other than to consume the Court’s time and further delay the ultimate resolution of the legitimate issues raised by the parties. III. DEFENDANTS’ THREE-JUDGE MOTION This Court now turns to defendants’ Three-Judge Motion. In that motion, defendants move, under Federal Rule of Civil Procedure 60(b)(5), for vacatur of our Order. They contend that, due to “the greatly reduced prison population,” overcrowding is no longer “the primary barrier prohibiting the State from providing constitutionally adequate medical and mental health care.” Defs.’ Resp. at 4 (ECF No. 2529/4332); see also Defs.’ Reply at 11 (ECF No. 2543/4345). Moreover, Defendants contend that this Court can rely solely on the evidence filed in conjunction with the Three-Judge Motion. Defs.’ Resp. at 1, 5 (ECF No. 2529/4332); see generally Defs.’ Reply (ECF No. 2543/4345). Having reviewed the relevant evidence in support of the Three-Judge Motion, this Court DENIES that motion for the reasons discussed below. A. Legal Standard The legal basis that defendants rely on for their Three-Judge Motion is Federal Rule of Civil Procedure 60(b)(5). Three-Judge Mot. at 5-6 (ECF No. 2506/4280). In relevant part, Rule 60(b)(5) permits a party to be relieved from a final judgment or order if “applying it prospectively is no longer equitable.” Fed. R.Civ.P. 60(b)(5). In Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992), the Supreme Court set forth a two-pronged inquiry for Rule 60(b)(5) motions. First, as a threshold matter, the party seeking modification “bears the burden of establishing that a significant change in circumstances warrants revision of the decree.” Id. at 383, 112 S.Ct. 748. Second, “[i]f the moving party meets this standard, the court should consider whether the proposed modification is suitably tailored to the changed circumstances.” Id. “The party seeking relief bears the burden of establishing that changed circumstances warrant relief, but once a party carries this burden, a court abuses its discretion ‘when it refuses to modify an injunction or consent decree in light of such changes.’ ” Horne v. Flores, 557 U.S. 433, 447, 129 S.Ct. 2579, 174 L.Ed.2d 406 (2009) (quoting Agostini v. Felton, 521 U.S. 203, 215, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997)) (other internal citations omitted). In meeting the threshold inquiry, the moving party “may not ... challenge the legal conclusions on which a prior judgment or order rests.” Id. Rather, it must.point to “a significant change either in factual conditions or in law” that renders continued enforcement of a final judgment inequitable. Id. (quoting Rufo, 502 U.S. at 384, 112 S.Ct. 748). For a change in law, the moving party must generally' demonstrate that “the statutory or decisional law has changed to make legal what the decree was designed to prevent.” Rufo, 502 U.S. at 388, 112 S.Ct. 748. For a change in facts, the moving party must demonstrate (1) that “changed factual conditions make compliance with the decree substantially more onerous”; (2) that “a decree proves to be unworkable because of unforeseen obstacles”; or (3) that “enforcement of the decree without modification would be detrimental to the public interest.” Id. at 384, 112 S.Ct. 748. A moving party alleging a “significant change in facts” faces an additional burden. Ordinarily, the party may not rely on “events that actually were anticipated at the time it entered into a decree.” Id. at 385, 112 S.Ct. 748. Indeed, in Rufo, the Supreme Court remanded for the district court to “consider whether the [changed circumstance] was foreseen by petitioners.” Id.; see also id. at 385-87, 112 S.Ct. 748 (explaining why, under the facts of the case, it was unlikely that petitioners anticipated the changed circumstances). Similarly, in Agostini v. Felton, the Supreme Court rejected a claim of changed factual circumstances based on the “exorbitant costs of complying,” because both parties were “aware that additional, costs would be incurred” due to the court’s judgment. 521 U.S. at 215-16, 117 S.Ct. 1997. “That these predictions of additional costs turned out to be accurate does not constitute a change in factual conditions warranting relief under Rule 60(b)(5).” Id. at 216, 117 S.Ct. 1997. In short, the moving party must demonstrate a significant and unanticipated change in facts. The touchstone of Rule 60(b)(5) analysis is that “a district court should exercise flexibility in considering requests for modification of an institutional reform consent decree.” Rufo, 502 U.S. at 383, 112 S.Ct. 748. “A flexible approach allows courts to ensure that ‘responsibility for discharging the State’s obligations is returned promptly to the State and its officials’ when the circumstances warrant.” Horne, 557 U.S. at 450, 129 S.Ct. 2579 (quoting Frew v. Hawkins, 540 U.S. 431, 442, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004)). However, “it does not follow that a modification will be warranted in all circumstances. Rule 60(b)(5) provides that a party may