No. 99-582
In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER
v.
RICHARD A. FRENCH, ET AL.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
SETH P. WAXMAN
Solicitor General
Counsel of Record
BILL LANN LEE
Acting Assistant Attorney
General
BARBARA D. UNDERWOOD
Deputy Solicitor General
IRVING L. GORNSTEIN
Assistant to the Solicitor
General
MARK L. GROSS
MARIE K. MCELDERRY
Attorneys
Department of Justice
Washington, D.C. 20530
(202) 514-2217
QUESTIONS PRESENTED
Under the automatic stay provision of the Prison Litigation Reform Act of
1995 (PLRA), 18 U.S.C. 3626(e) (Supp. III 1997), the filing of a motion
to terminate prospective relief shall operate as a stay during the period
beginning 30 days after the filing of the motion and ending on the date
the court rules on the motion. A court may postpone the effective date of
the automatic stay for not more than 60 days for good cause, and any order
staying, suspending, delaying, or barring the operation of the automatic
stay (other than a postponement for not more than 60 days) is appealable
under 28 U.S.C. 1292(a)(1). The questions presented are:
1. Whether a district court has authority to suspend the automatic stay
under traditional equitable standards.
2. Whether the automatic stay provision violates constitutional separation-of-powers
principles.
PARTIES TO THE PROCEEDING
The petitioner is the United States.
The private respondents are Richard A. French, Morris E. Dozier, Martin
W. Bradberry, Henry C. Jennings.
The state respondents are Charles B. Miller, Superintendent of the Pendleton
Correctional Facility, Edward I. Cohn, Commissioner, Indiana Department
of Correction, and Herbert Newkirk, Regional Director, Indiana Department
of Correction.
In the Supreme Court of the United States
No. 99-582
UNITED STATES OF AMERICA, PETITIONER
v.
RICHARD A. FRENCH, ET AL.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of the United States, petitions for a writ
of certiorari to review the judgment of the United States Court of Appeals
for the Seventh Circuit in this case.
OPINION BELOW
The opinion of the court of appeals (App., infra, 1a-23a) is reported at
178 F.3d 437.
JURISDICTION
The judgment of the court of appeals was entered on May 6, 1999. On July
29, 1999, Justice Stevens extended the time within which to file a petition
for a writ of certiorari to and including September 3, 1999, and on August
23, 1999, Justice Stevens further extended the time for filing a petition
to and including October 3, 1999 (a Sunday). The jurisdiction of this Court
is invoked under 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
The relevant statutory provisions are reproduced in the appendix to this
petition. App., infra, 40a-43a.
STATEMENT
1. In 1996, Congress enacted the Prison Litigation Reform Act of 1995 (PLRA),
Pub. L. No. 104-134, Tit. VIII, §§ 801-810, 110 Stat. 1321-66
to 1321-77. The PLRA sets forth standards for the entry and termination
of prospective relief in civil actions challenging conditions at prison
facilities. Under the PLRA, prospective relief in prison conditions cases
"shall extend no further than necessary to correct the violation of
the Federal right of a particular plaintiff or plaintiffs." 18 U.S.C.
3626(a)(1)(A) (Supp. III 1997).
The PLRA provides for the "immediate termination" of relief that
does not conform to that new statutory standard. 18 U.S.C. 3626(b)(2). It
specifies that, "[i]n any civil action with respect to prison conditions,
a defendant or intervener shall be entitled to the immediate termination
of any prospective relief if the relief was approved or granted in the absence
of a finding by the court that the relief is narrowly drawn, extends no
further than necessary to correct the violation of the Federal right, and
is the least intrusive means necessary to correct the violation of the Federal
right." 18 U.S.C. 3626(b)(2) (Supp. III 1997). That statutory mandate
is subject to an important qualification. "Prospective relief shall
not terminate if the court makes written findings based on the record that
prospective relief remains necessary to correct a current and ongoing violation
of the Federal right, extends no further than necessary to correct the violation
of the Federal right, and that the prospective relief is narrowly drawn
and the least intrusive means to correct the violation." 18 U.S.C.
3626(b)(3) (Supp. III 1997). A party may seek immediate termination even
if the relief "was originally granted or approved before * * * the
date of the [PLRA's enactment]." § 802(b), 110 Stat. 1321-70 (18
U.S.C. 3626 note 1996 Amendment).1
The PLRA establishes special procedures that govern motions for immediate
termination. A court is required to "promptly rule" on a motion
for immediate termination. 18 U.S.C. 3626(e)(1) (Supp. III 1997). When a
court fails to issue a prompt ruling, mandamus "shall lie" as
a remedy. Ibid. In addition, under the automatic stay provision, at issue
here, the filing of a motion for immediate termination "shall operate
as a stay during the period * * * beginning on the 30th day after such motion
is filed * * * and * * * ending on the date the court enters a final order
ruling on the motion." 18 U.S.C. 3626(e)(2) (Supp. III 1997). A court
may "postpone the effective date of an automatic stay * * * for not
more than 60 days for good cause," but no postponement is permissible
"because of general congestion of the court's calendar." 18 U.S.C.
3626(e)(3) (Supp. III 1997). Any order "staying, suspending, delaying,
or barring the operation of the automatic stay" (other than an order
postponing the automatic stay under the 60 day postponement provision) is
subject to appellate review. Such an order "shall be treated as an
order refusing to dissolve or modify an injunction and shall be appealable
pursuant to section 1292(a)(1) of title 28." 18 U.S.C. 3626(e)(4) (Supp.
III 1997).2
2. In 1975, a class of inmates at the Pendleton Correctional Facility (respondents)
filed suit against several Indiana prison officials (the State), alleging
that the conditions at the facility violated state and federal law. After
a trial, the district court found violations of state and federal law and
entered a remedial order designed to correct those violations. French v.
Owens, 538 F. Supp. 910 (S.D. Ind. 1982), aff'd in part, vacated in part,
777 F.2d 1250 (7th Cir. 1985), cert. denied, 479 U.S. 817 (1986). While
an appeal from that judgment was pending, this Court held in Pennhurst State
School and Hospital v. Halderman, 465 U.S. 89 (1984), that the Eleventh
Amendment deprives federal courts of jurisdiction to issue prospective relief
against state officers based on state law. The Seventh Circuit remanded
the case to the district court for reconsideration in light of Pennhurst.
See 777 F.2d at 1251.
On remand, the district court found that most of the state law violations
also violated federal law. 777 F.2d at 1251. The district court also issued
an amended remedial order that took into account improvements that had been
made at the facility. Ibid. The Seventh Circuit affirmed in part and vacated
in part. Id. at 1250. It upheld the provisions of the district court's order
addressing overcrowding, double celling, improper use of mechanical restraints,
inadequate medical care, unsanitary kitchen services, and insufficient staffing;
it vacated the provisions addressing exercise and recreation, fire and safety,
and protective custody. Id. at 1258. The parties resolved the remaining
issues through joint stipulations.
3. In 1997, the State filed a motion under the PLRA for immediate termination
of the district court's remedial orders. App., infra, 5a-6a. Respondents
filed a motion for a preliminary injunction to suspend the operation of
the automatic stay. Id. at 6a. The district court granted respondents' motion,
finding that the automatic stay provision "is clearly unconstitutional,"
that respondents "[were] likely to succeed on the merits of their challenge
to the automatic stay," and that the State "would not be harmed
by the entry of a preliminary injunction." Id. at 36a-37a. The State
appealed the order suspending the automatic stay, and the United States
intervened in the appeal, pursuant to 28 U.S.C. 2403(a), to defend the constitutionality
of the automatic stay provision. The United States argued that the automatic
stay provision does not deprive a court of authority to suspend the automatic
stay in accordance with traditional equitable standards and that, when so
construed, the automatic stay provision does not violate constitutional
separation-of-powers principles.
4. The court of appeals affirmed the district court's order. App., infra,
1a-23a. The court of appeals interpreted the automatic stay as a legislative
command that a stay of prospective relief occur no later than 90 days after
the filing of a motion for termination. Id. at 9a-12a. The court expressly
rejected the view of the United States and of the Sixth Circuit in Hadix
v. Johnson, 144 F.3d 925 (1998), that a court has inherent authority to
suspend the automatic stay in accordance with traditional equitable standards.
Ibid. The court noted that the statutory text provides that the filing of
a motion for termination "shall" operate as a stay and that the
stay would be "automatic." App., infra, 12a. The court also observed
that the text of the automatic stay provision "specifie[s] not only
a clear starting point, but also the ending point for the stay." Ibid.
The court concluded that "[e]ven though we do not lightly assume that
Congress meant to restrict the equitable powers of the federal courts, we
find it impossible to read this language as doing anything less than that."
Ibid.
The court then ruled that the automatic stay provision "violates the
separation of powers principle because it is a direct legislative suspension
of a court order." App., infra, 18a. The court noted that in Plaut
v. Spendthrift Farm, Inc., 514 U.S. 211, 218-219 (1995), this Court stated
that Article III "gives the Federal Judiciary the power, not merely
to rule on cases, but to decide them, subject to review only by superior
courts in the Article III hierarchy." App., infra, 19a. The court of
appeals concluded that the automatic stay provision violates that principle
because it "places the power to review judicial decisions outside of
the judiciary: it is a self-executing legislative determination that a specific
decree of a federal court * * * must be set aside at least for a period
of time, no matter what the equities, no matter what the urgency of keeping
it in place." Ibid.
The court of appeals also concluded that the automatic stay provision violates
the separation-of-powers principle established in United States v. Klein,
80 U.S. (13 Wall.) 128 (1871). App., infra, 19a-20a. The court characterized
Klein as holding that "Congress does not have the power to impose a
rule of decision for pending judicial cases, apart from its power to change
the underlying applicable law." Id. at 20a. The court concluded that
the automatic stay provision "falls comfortably within the rule of
Klein," because it mandates that prospective relief must be terminated
during the pendency of the case. Ibid.
Because its reasoning was "sufficiently at odds" with the reasoning
of the Sixth Circuit in Hadix, the panel circulated its opinion to the full
court for the purpose of determining whether the case should be reheard
en banc. App., infra, 23a n.3. A majority of the judges in regular active
service did not vote to hear the case en banc. Ibid.
Judge Easterbrook (joined by Chief Judge Posner and Judge Manion) dissented
from the denial of rehearing en banc. App., infra, 23a-35a. The dissenters
agreed with the panel that a district court does not have authority to suspend
the automatic stay under traditional equitable standards. Id. at 23a. The
dissenters concluded, however, that the automatic stay provision, as so
construed, does not violate separation-of-powers principles.
The dissenters disagreed with the panel's conclusion that the automatic
stay provision unconstitutionally interferes with a court's ability to adjudicate
a case. App., infra, 26a-30a. In their view, the automatic stay provision
simply "goads" courts to rule promptly on the merits of a motion
for termination, id. at 28a, and the Constitution does not give courts an
immunity from deadlines, id. at 28a-29a. The dissenters also disagreed with
the majority's conclusion that the automatic stay provision violates the
rule in Klein. They reasoned that the automatic stay provision does not
mandate a rule of decision without a change in the underlying law, but simply
stays prospective relief until the court determines whether that relief
complies with the new standard set forth in the immediate termination provision.
Id. at 30a-31a. The dissenters asserted that the panel's decision threatens
the constitutionality of numerous federal statutes, including the automatic
stay in bankruptcy, 11 U.S.C. 362(a)(2), and the Speedy Trial Act of 1974,
18 U.S.C. 3161, 3162(a)(2). App., infra, 31a- 35a.
The State has filed a petition for a writ of certiorari to review the court
of appeals' judgment. Duckworth v. French, No. 99-224. The State does not
challenge the court of appeals' construction of the automatic stay provision.
Its petition presents the question whether the automatic stay provision
as construed by the court of appeals "violates separation-of-powers
principles by legislatively specifying a rule of decision or legislatively
annulling a judgment." Pet. i.
REASONS FOR GRANTING THE PETITION
The court of appeals has held that the automatic stay provision of the PLRA
violates constitutional separation-of-powers principles. That holding invalidates
a provision of a recent Act of Congress. The court's constitutional ruling
is premised on the court's interpretation of the automatic stay provision
as not permitting a district court to suspend the automatic stay based on
traditional equitable standards. That interpretation of the automatic stay
provision conflicts with the decision of the Sixth Circuit in Hadix v. Johnson,
144 F.3d 925 (1998), and of the Fifth Circuit in Ruiz v. Johnson, 178 F.3d
385 (1999). Both circuits have held that a court has inherent authority
to suspend the automatic stay based on traditional equitable standards and
have upheld the constitutionality of the automatic stay provision on that
basis.
The court of appeals' construction of the automatic stay provision is incorrect.
The automatic stay provision does not deprive a court of authority to suspend
the automatic stay under traditional equitable standards. Thus, when a party
opposing an immediate termination motion can establish that a stay of the
court's outstanding decree will cause irreparable injury and that the immediate
termination motion is likely to be defeated on the merits, a court has discretion
to suspend the automatic stay. When the automatic stay provision is so construed,
it avoids the serious constitutional question that would be presented if
the provision were interpreted as not permitting a district court to suspend
the automatic stay when justified under traditional equitable standards.
Review of the court of appeals' decision is therefore warranted.
1. The court of appeals in this case held that the automatic stay provision
in the PLRA violates constitutional separation-of-powers principles. The
court specifically stated that the automatic stay provision "represents
an unconstitutional legislative encroachment into the powers reserved to
the judiciary." App., infra, 18a; see also id. at 19a (automatic stay
"amounts to an unconstitutional intrusion on the power of the courts
to adjudicate cases"); id. at 20a (automatic stay "exceeds the
power of the legislative branch"). That invalidation of a provision
of a recent Act of Congress warrants this Court's review. See United States
v. Gainey, 380 U.S. 63, 65 (1965) (certiorari granted "to review the
exercise of the grave power of annulling an Act of Congress").
2. The premise of the court of appeals' constitutional ruling is that the
automatic stay provision does not permit a court to suspend the automatic
stay in accordance with traditional equitable standards. In the court of
appeals' view, the automatic stay provision "is a self-executing legislative
determination that a specific decree of a federal court * * * must be set
aside at least for a period of time, no matter what the equities, no matter
what the urgency of keeping it in place." App., infra, 19a.
That interpretation of the automatic stay provision conflicts with the Sixth
Circuit's decision in Hadix and the Fifth Circuit's decision in Ruiz. In
Hadix, the Sixth Circuit held that "courts retain the power to suspend
the automatic stay in accordance with general equitable standards,"
144 F.3d at 937. Specifically, the court held that a court may suspend the
automatic stay when "the traditional standard governing the issuance
of a preliminary injunction in equity" is satisfied. Id. at 945. Similarly,
in Ruiz, the Fifth Circuit held that, "[u]nder our reading of §
3626(e), the district court * * * retains its authority to suspend the (e)(2)
stay." 178 F.3d at 395.
The court of appeals in this case acknowledged that its interpretation of
the automatic stay provision conflicted with the interpretation adopted
by the Sixth Circuit in Hadix. App., infra, 12a ("Although we have
the highest regard for our Sixth Circuit colleagues and the concerns that
motivated them to adopt the Justice Department's view of (e)(2), we cannot
agree that the language of that subpart can be pushed this far.").
In Ruiz, the Fifth Circuit also noted the conflict, observing that the Sixth
Circuit in Hadix and the court below had "reached opposite results
with respect to statutory interpretation." 178 F.3d at 393. The Fifth
Circuit then adopted the Sixth Circuit's interpretation and rejected the
interpretation adopted by the court below. Id. at 394-395. There is therefore
a clear conflict in the circuits on the question whether the automatic stay
provision permits a court to suspend the automatic stay in accordance with
traditional equitable standards.
The conflict between the decision below and the decisions in Hadix and Ruiz
is not only one of statutory construction. The difference between the circuits
on the question whether a court may suspend the automatic stay in accordance
with traditional equitable standards led the circuits to reach different
conclusions about the constitutionality of the automatic stay provision.
While the court below invalidated the automatic stay provision, the Fifth
and Sixth Circuits upheld its constitutionality. Ruiz, 178 F.3d at 395 ("Under
our reading," the automatic stay provision "is therefore constitutional");
Hadix, 144 F.3d at 937 ("Given [our] construction, the amended automatic
stay provision is constitutional."). The consequence is that the automatic
stay provision is fully effective in the Fifth and Sixth Circuits, but wholly
ineffective in the Seventh Circuit. Thus, in the Fifth and Sixth Circuits,
if the district court does not postpone the automatic stay for good cause
within 30 days of the filing of a motion for termination, or suspend the
automatic stay in accordance with traditional equitable standards within
90 days of the filing of the motion, the automatic stay will take effect.
In contrast, in the Seventh Circuit, the automatic stay can never take effect.
That conflict in the circuits warrants resolution by this Court.
3. The court of appeals' interpretation of the automatic stay provision
is incorrect. Federal district courts have always enjoyed inherent authority
to issue interim equitable relief to preserve the status quo until a case
that is pending before them is resolved. 11A Charles Alan Wright et al.,
Federal Practice and Procedure § 2943, at 79 (1995). To obtain such
relief, a person must ordinarily demonstrate that a change in the status
quo would cause him irreparable injury and that he is likely to succeed
on the merits of the litigation. See Doran v. Salem Inn, Inc., 422 U.S.
922, 931 (1975). In deciding whether to grant such relief, the court also
weighs the harm to others and the public interest. Ibid; Yakus v. United
States, 321 U.S. 414, 440 (1944). The court of appeals interpreted the automatic
stay provision to completely strip a federal court of its inherent authority
to issue such interim relief. Thus, under the court of appeals' interpretation,
even when the party opposing the immediate termination motion can show that
a stay of the relief in the decree would cause him irreparable injury and
that he is likely to defeat the immediate termination motion, the court
would have no authority to suspend the automatic stay.
This Court has held, however, that, "[a]bsent the clearest command
to the contrary from Congress, federal courts retain their equitable power
to issue injunctions in suits over which they have jurisdiction," Califano
v. Yamasaki, 442 U.S. 682, 705 (1979), and that "[u]nless a statute
in so many words, or by a necessary and inescapable inference, restricts
the court's jurisdiction in equity, the full scope of that jurisdiction
is to be recognized and applied." Porter v. Warner Holding Co., 328
U.S. 395, 398 (1946); see also Hecht Co. v. Bowles, 321 U.S. 321, 330 (1944)
(when "Congress desire[s] to make * * * an abrupt departure from traditional
equity practice," it makes "its desire plain"). Those holdings
are controlling here. The automatic stay provision does not clearly foreclose
a court from preserving the status quo by suspending the automatic stay
in accordance with traditional equitable standards. Instead, when read in
conjunction with other related provisions of the Act, the automatic stay
provision is most naturally read as permitting the exercise of that authority.
The court of appeals therefore erred in failing to interpret the automatic
stay provision to permit a court to suspend the automatic stay when justified
under traditional equitable standards.
a. The automatic stay provision states that the filing of a motion for immediate
termination "shall operate as a stay during the period-* * * beginning
on the 30th day after such motion is filed * * * and * * * ending on the
date the court enters a final order ruling on the motion." 18 U.S.C.
3626(e)(2) (Supp. III 1997). Particularly when read against the background
principle that federal courts retain their inherent equitable authority
absent the clearest command to the contrary, the text of the automatic stay
provision does not deprive a court of authority to suspend the automatic
stay when justified by traditional equitable standards. Instead, it simply
describes how the statute is to operate in the absence of judicial intervention.
The court of appeals concluded that, because the language of the automatic
stay provision states that the automatic stay "shall" take effect,
and specifies when the stay begins and ends, it necessarily precludes an
exercise of traditional equitable authority. App., infra, 12a. Those features
of the statute, however, are perfectly consistent with the view that the
statute establishes what will happen in the absence of judicial intervention;
they do not demonstrate that Congress intended to take the extraordinary
step of eliminating a court's inherent authority to preserve the status
quo under traditional equitable standards.
b. The structure of the Act further supports the conclusion that Congress
did not intend to strip a federal court of its inherent authority to issue
interim relief when justified under traditional equitable standards. The
very next provision of the Act (the postponement provision) specifies that
"[t]he court may postpone the effective date of an automatic stay *
* * for not more than 60 days for good cause," which does not include
"general congestion of the court's calendar." 18 U.S.C. 3626(e)(3)
(Supp. III 1997). If Congress had intended for the automatic stay provision
to block judicial intervention, and not just to establish the regime that
would exist in the absence of judicial intervention, the postponement provision
would likely have been introduced by a phrase such as "notwithstanding
Section 3626(e)(2)." The absence of such introductory language confirms
that the automatic stay provision only addresses what will occur in the
absence of judicial intervention and that it does not affect judicial authority
to suspend the automatic stay in accordance with traditional equitable standards.
The postponement provision does directly affect judicial authority. It not
only authorizes a court to postpone the effective date of the automatic
stay for 60 days for good cause; it necessarily implies that a court may
not postpone the automatic stay under a good cause standard for more than
60 days. The absence of judicial authority to postpone the automatic stay
under a statutory good cause standard, however, does not imply that a court
lacks authority to suspend the automatic stay under traditional equitable
standards.
The reason is that, under the statutory good cause standard, any legitimate
reason for postponing a hearing on the immediate termination motion, other
than general docket congestion, could justify a postponement of up to 60
days. 18 U.S.C. 3626(e)(3) (Supp. III 1997). Thus, a counsel's scheduling
conflict, the unavailability of a witness, a general need for discovery,
or a court's involvement in another pressing matter could all serve as a
basis for a statutory postponement order. In contrast, in order to obtain
a suspension of the automatic stay under traditional equitable standards,
a party would ordinarily have to demonstrate that a stay of the court's
orders would cause him irreparable injury and that he is likely to defeat
the immediate termination motion. Doran, 422 U.S. at 931. Congress's unwillingness
to permit a postponement of the automatic stay under a generous good cause
standard for more than 60 days plainly does not imply that Congress has
foreclosed a court from suspending the automatic stay when justified under
the far more demanding standards for obtaining interim equitable relief.
To the contrary, the fact that Congress has limited judicial authority in
one respect implies that the court remains free to exercise the traditional
authority that has not been restricted.
c. It is also significant that Congress has provided a mechanism for appellate
review of orders "staying, suspending, delaying, or barring the operation
of the automatic stay" (other than an order postponing the automatic
stay under the 60 day postponement provision). 18 U.S.C. 3626(e)(4) (Supp.
III 1997). Such orders "shall be treated as an order refusing to dissolve
or modify an injunction and shall be appealable pursuant to section 1292(a)(1)
of title 28." Ibid. As the Sixth Circuit concluded in Hadix, 144 F.3d
at 938, a provision for appellate review of orders suspending the automatic
stay implies that district courts have authority to issue such orders. See
also Ruiz, 178 F.3d at 394.
The court of appeals attempted to explain the provision for appellate review
as a mechanism for ensuring prompt reversal of all orders suspending the
automatic stay. 178 F.3d at 443. If that were Congress's intent, however,
it would have provided for appellate correction through mandamus, which
is the mechanism that has traditionally been used "to confine an inferior
court to a lawful exercise of its prescribed jurisdiction or to compel it
to exercise its authority when it is its duty to do so." Roche v. Evaporated
Milk Ass'n, 319 U.S. 21, 26 (1943). Indeed, Congress manifested its awareness
of the distinction in the statute at issue here. At the same time that Congress
provided for appeal of an order suspending the automatic stay, it also provided
for review by mandamus of a court's failure to perform its duty to issue
a prompt ruling on a motion for termination. 18 U.S.C. 3626(e)(1) (Supp.
III 1997). Thus, Congress manifested its recognition that an order suspending
the automatic stay is within the authority of a district court, and must
be reviewed on appeal for conformity with traditional equitable standards.
d. Interpreting the automatic stay provision to permit a district court
to suspend the automatic stay based on traditional equitable standards is
further supported by the principle that a statute should be construed to
avoid a serious constitutional question, when such a construction is fairly
possible. Jones v. United States, 119 S. Ct. 1215, 1222 (1999); United States
v. X- Citement Video, Inc., 513 U.S. 64, 78 (1994). In Plaut v. Spendthrift
Farm, Inc., 514 U.S. 211, 219 (1995), the Court held that Congress lacks
authority under the Constitution retroactively to command a federal court
to reopen a final judgment for monetary relief. The Court explained that
Article III "gives the Federal judiciary the power, not merely to rule
on cases, but to decide them, subject to review only by superior courts
in the Article III hierarchy." Id. at 218-219. In the course of the
opinion, the Court also quoted Judge Iredell's statement in Hayburn's Case,
2 U.S. (2 Dall.) 409, 413 (1792), that "no decision of any court of
the United States can, under any circumstances, * * * be liable to a revision,
or even suspension, by the legislature itself, in whom no judicial power
of any kind appears to be vested." 514 U.S. at 226.
If the automatic stay provision were interpreted as a "self-executing
legislative determination that a specific decree of a federal court * *
* must be set aside at least for a period of time, no matter what the equities,
no matter what the urgency of keeping it in place," (App., infra, 19a),
a serious question would be raised concerning whether the automatic stay
provision violates the separation-of-powers principles recognized in Plaut.
In contrast, as the Fifth and Sixth Circuits have held, Ruiz, 178 F.3d at
395; Hadix, 144 F.3d at 937, and as the court of appeals in this case acknowledged,
App., infra, 17a n.2, if the automatic stay provision is interpreted to
permit a court to suspend the automatic stay in accordance with traditional
equitable standards, no serious separation-of-powers question is presented.
Since the automatic stay provision can fairly be interpreted to permit a
court to suspend the automatic stay in accordance with traditional equitable
standards, the court of appeals erred in failing to adopt that interpretation.3
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
BILL LANN LEE
Acting Assistant Attorney
General
BARBARA D. UNDERWOOD
Deputy Solicitor General
IRVING L. GORNSTEIN
Assistant to the Solicitor
General
MARK L. GROSS
MARIE K. MCELDERRY
Attorneys
OCTOBER 1999
1 Under 18 U.S.C. 3626(b)(1) (Supp. III 1997), all decrees, including those
entered with the necessary findings, are also subject to periodic review
to determine whether they remain necessary to remedy a constitutional violation.
Section 3626(b)(1) provides for such review two years after the entry of
relief, one year after a denial of a motion to terminate, and, in the case
of pre-PLRA decrees, two years after the date of enactment. In April 1998,
all pre-PLRA decrees became subject to periodic review.
2 As originally enacted, the automatic stay provision specified that "[a]ny
prospective relief subject to a pending motion shall be automatically stayed,"
beginning on the 30th day after the filing of a motion for termination and
ending on the date the court rules on the motion. § 802, 110 Stat.
1321-68. The 1997 amendments to the PLRA revised the automatic stay provision
so that it now specifies that "[a]ny motion to modify or terminate
prospective relief * * * shall operate as a stay," beginning on the
30th day after the filing of a motion for termination and ending on the
date the court rules on the motion. Pub. L. No. 104-134, § 802, 110
Stat. 1321-68 (18 U.S.C. 3626(e)(1)-(2) (Supp. III 1997)). The 1997 amendments
also added: (1) the provision authorizing mandamus when a court fails to
rule promptly on a motion for termination, 18 U.S.C. 3626(e)(1) (Supp. III
1997); (2) the provision authorizing a court to postpone the automatic stay
for 60 days for good cause, 18 U.S.C. 3626(e)(3) (Supp. III 1997); and (3)
the provision authorizing an appeal from an order staying the automatic
stay, 18 U.S.C. 3626(e)(4) (Supp. III 1997). Congress specified that the
amendments "shall take effect upon the date of the enactment of this
Act [Nov. 26, 1997] and shall apply to pending cases." Pub. L. No.
105-119, § 123(b), 111 Stat. 2471 (18 U.S.C. 3626 note).
3 This case does not raise any question concerning the constitutionality
of the immediate termination provision. As the courts of appeals have uniformly
concluded, that provision falls comfortably within Congress's authority
under Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.)
421 (1855), to affect prospective relief through a change in the applicable
law. See Berwanger v. Cottey, 178 F.3d 834 (7th Cir. 1999); Nichols v. Hopper,
173 F.3d 820 (11th Cir. 1999); Benjamin v. Jacobson, 172 F.3d 144 (2d Cir.
1999) (en banc), petition for cert. pending, No. 98-2042; Imprisoned Citizens
Union v. Ridge, 169 F.3d 178 (3d Cir. 1999); Hadix v. Johnson, 133 F.3d
940 (6th Cir.), cert. denied, 118 S. Ct. 2368 (1998); Inmates of Suffolk
County Jail v. Rouse, 129 F.3d 649 (1st Cir. 1997), cert. denied, 118 S.
Ct. 2366 (1998); Dougan v. Singletary, 129 F.3d 1424 (11th Cir. 1997), cert.
denied, 118 S. Ct. 2375 (1998); Gavin v. Branstad, 122 F.3d 1081 (8th Cir.
1997), cert. denied, 118 S. Ct. 2374 (1998); Plyler v. Moore, 100 F.3d 365
(4th Cir. 1996), cert. denied, 520 U.S. 1277 (1997).
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 97-3075
RICHARD A. FRENCH, ET AL., PLAINTIFFS-APPELLEES
v.
JACK R. DUCKWORTH, ET AL., DEFENDANTS-APPELLANTS,
AND
UNITED STATES OF AMERICA, INTERVENOR-APPELLANT
Appeal from the United States District Court
for the Southern District of Indiana
Indianapolis Division
No. IP 75-677-C-S. Hugh Dillin, Judge
[Argued April 6, 1998.
Decided May 6, 1999.*]
Before: FLAUM, ROVNER, and DIANE P. WOOD, Circuit Judges.
DIANE P. WOOD, Circuit Judge.
This case began almost three decades ago when inmates at what is now the
Pendleton Correctional Facility in Indiana filed a class action against
the state claiming that certain conditions at the prison violated their
constitutional rights. They obtained some of the relief they sought in an
injunction that was affirmed by this court in French v. Owens, 777 F.2d
1250, 1258 (7th Cir. 1985), and the prison has operated under that injunction,
as modified from time to time, ever since. The present action arose when
the State of Indiana decided to take advantage of the 1996 Prison Litigation
Reform Act ("PLRA") and petition to terminate the injunction.
The merits of that effort, however, are not before us at this time. Instead,
we must decide whether the so-called "automatic stay" provision
of the PLRA, codified at 18 U.S.C. § 3626(e)(2), applies, and if it
does, whether it is constitutional.
I
A
In order to place this case in context, we begin with a brief description
of the PLRA as it affects injunctions addressing prison conditions. The
part of the statute with which we are concerned addresses the subject of
"[a]ppropriate remedies with respect to prison conditions." 18
U.S.C. § 3626. Subpart (a)(1) provides that a federal court must limit
prospective relief with respect to prison conditions in a variety of ways:
The court shall not grant or approve any prospective relief unless the court
finds that such relief is narrowly drawn, extends no further than necessary
to correct the violation of the Federal right, and is the least intrusive
means necessary to correct the violation of the Federal right.
18 U.S.C. § 3626(a)(1).
Recognizing that many institutions are already operating under existing
injunctions, the statute also provides a way for the prison authorities
to bring their federally imposed obligations into line with the limitations
of § 3626(a)(1). Part (b) sets out a road map for the termination of
prospective relief that has either outlived its usefulness, or that violates
the (a)(1) conditions. Under the authority of § 3626(b)(1), prospective
relief is terminable upon motion of any party or intervener within two years
after the court granted the relief (or two years after the date of enactment
of the PLRA), or one year after the court denied a request to terminate
relief. Subpart (b)(2), which has come to be known as the "immediate
termination" provision of the statute, establishes the defendant's
or intervener's right to relief. Because this is the basis for the state's
petition, we set it out in its entirety:
(2) Immediate termination of prospective relief.- In any civil action with
respect to prison conditions, a defendant or intervener shall be entitled
to the immediate termination of any prospective relief if the relief was
approved or granted in the absence of a finding by the court that the relief
is narrowly drawn, extends no further than necessary to correct the violation
of the Federal right, and is the least intrusive means necessary to correct
the violation of the Federal right.
18 U.S.C. § 3626(b)(2). Hard on the heels of this provision is another
that sets forth an exception to the entitlement to "immediate"
termination:
(3) Limitation.-Prospective relief shall not terminate if the court makes
written findings based on the record that prospective relief remains necessary
to correct a current and ongoing violation of the Federal right, extends
no further than necessary to correct the violation of the Federal right,
and that the prospective relief is narrowly drawn and the least intrusive
means to correct the violation.
18 U.S.C. § 3626(b)(3). Part (c) of the PLRA addresses settlements,
basically saying that a court may not enter a settlement in the form of
a consent decree unless the settlement conforms to the statutory limitations,
but that the parties are free to conclude any private settlement agreement
they wish, as long as that agreement is not directly enforceable by the
court (other than by reinstatement of the case). Part (d) makes clear that
the PLRA's limitations do not apply to relief entered by a state court based
solely upon claims arising under state law.
Finally (for our purposes) is the automatic stay provision, part (e). It
begins innocuously enough in subpart (e)(1), by calling for the court to
rule promptly on any motion to modify or terminate prospective relief. The
problems arise with subpart (e)(2), which provides as follows:
(2) Automatic stay.-Any motion to modify or terminate prospective relief
made under subsection (b) shall operate as a stay during the period-
(A)(i) beginning on the 30th day after such motion is filed, in the case
of a motion made under paragraph (1) or (2) of subsection (b); or
(ii) beginning on the 180th day after such motion is filed in the case of
a motion made under any other law; and
(B) ending on the date the court enters a final order ruling on the motion.
* * * * *
18 U.S.C. § 3626(e)(2). Since 1997, it has been possible for the court
to order a modest extension of time before the automatic stay goes into
effect, if the court takes advantage of subpart (e)(3):
(3) Postponement of automatic stay.-The court may postpone the effective
date of an automatic stay specified in subsection (e)(2)(A) for not more
than 60 days for good cause. No postponement shall be permissible because
of general congestion of the court's calendar.
18 U.S.C. § 3626(e)(3). See Pub. L. No. 105-119, § 123, 11 Stat.
2440, 2470 (1997) (adding this language). Finally, under subpart (e)(4)
the statute expressly provides that an order "staying, suspending,
delaying, or barring the operation of the automatic stay described in paragraph
(2)" other than the orders authorized by (e)(3) may be appealed pursuant
to 28 U.S.C. § 1292(a)(1).
B
With that background in mind, we now turn to what happened in this case.
On June 5, 1997, Warden Jack R. Duckworth of the Pendleton Correctional
Facility, along with Indiana officials Bruce Lemmon and Edward L. Conn (to
whom we refer collectively as the state), filed a Motion To Terminate Decree,
relying on § 3626(b)(1)(A) and (b)(2). In response, on June 30, 1997,
the prisoner class ("the prisoners") filed a Motion for a Temporary
Restraining Order or Preliminary Injunction, in which they asked the court
to stay the automatic stay provision of § 3626(e)(2), which they described
in paragraph 2 of their motion. They also filed a memorandum in support
of the motion, in which they addressed the four standards that normally
govern the issuance of a preliminary injunction: (a) likelihood of success
on their argument that the automatic stay provision of § 3626(e)(2)
would be found unconstitutional; (b) irreparable harm to the prisoners if
the "automatic termination" took effect; (c) lack of harm to the
defendants if the "automatic termination" was stayed; and (d)
the public interest. The prisoners' memorandum concluded with a request
that "the Court should enter a temporary restraining order or a preliminary
injunction staying the operation of the automatic termination provision
of the PLRA." On the same day, the prisoners also filed a separate
Response to Defendants' Motion to Terminate Decree, in which they set forth
their position that the termination provisions of §§ 3626(b)(2)
and (b)(3) are unconstitutional.
On July 3, 1997, the district court granted the temporary restraining order
the prisoners had requested and scheduled a hearing on July 10 for fuller
consideration of the preliminary injunction motion. On July 11, following
the hearing, the district court entered an order converting the TRO into
a preliminary injunction. The state has now appealed from that July 11 order.
Our review of the district court's actions is complicated by the fact that
the court's orders granting the TRO and preliminary injunction can be read
as confusing the § 3626(e)(2) automatic stay provision with the §
3626(b)(2) immediate termination provision. (This confusion seems to have
originated with the parties themselves. We note that although the prisoners
sought to stay the "automatic termination" provision, there is
no such thing in the PLRA. There is one section providing for immediate
termination, and another requiring an automatic stay.) Even though the prisoners
had not asked for a TRO against the (b)(2) immediate termination provision,
the July 3 order recites that it "enjoin[s] and prohibit[s] the automatic
termination [sic] provision of the Prison Litigation Reform Act from taking
effect." Further, the July 11 order explains that the court was converting
the TRO into a preliminary injunction "for the principal reason that
the Court believes that 18 U.S.C. § 3626(b)(2) is clearly unconstitutional
as found by other courts." The July 11 order concludes that "[a]ccordingly,
there shall be no stay of prospective relief in this matter."
Although we considered remanding this case to the district court to find
out what it really meant, in the end we concluded that such a step was unnecessary.
A review of the entire record (including the transcript of the July 10 hearing)
convinces us that the district court intended to enjoin the (e)(2) automatic
stay provision, not the (b)(2) immediate termination provision. True, the
orders referred to the "automatic termination" provision and to
18 U.S.C. § 3626(b)(2). Several points convince us, however, that the
district court simply cited the wrong statutory section, a mistake to which
we need not attach any significance unless it affects the substantial rights
of the parties, see Fed. R. Civ. P. 61. First, the motion before the court
and the arguments presented at the hearing on the preliminary injunction
addressed only the automatic stay of (e)(2), not the immediate termination
required by (b)(2). There was a fair amount of discussion of (b)(2) at the
hearing, but this was in the context of the likelihood that the prisoners
could defeat the state's underlying petition for immediate termination.
Second, the record shows that proceedings have continued in the district
court on the question whether the decree should be terminated pursuant to
§ 3626(b)(2), suggesting that the lower court is of the view that it
did not finally resolve the termination issue. Finally, and most important,
the last paragraph of the court's injunction sets forth in plain English
what it was doing. Stripped of citations, the only thing that paragraph
does is to refuse to permit a stay of prospective relief to go into effect.
In substance, this means the injunction addresses the (e)(2) problem, not
the (b)(2) problem.
Even though the question of the constitutionality of (b)(2) is not before
this panel, it is presented in Berwanger v. Cottey, 178 F.3d 834 (7th Cir.
1999), which this court has also decided today. In Berwanger, we join the
overwhelming majority of our sister circuits and hold that § 3626(b)(2)
may be applied to existing consent decrees. See, e.g., Imprisoned Citizens
Union v. Ridge, 169 F.3d 178 (3d Cir. 1999); Tyler v. Murphy, 135 F.3d 594
(8th Cir. 1998); Hadix v. Johnson, 133 F.3d 940 (6th Cir. 1998); Dougan
v. Singletary, 129 F.3d 1424 (11th Cir. 1997); Inmates of Suffolk County
Jail v. Rouse, 129 F.3d 649 (1st Cir. 1997); Benjamin v. Jacobson, 172 F.3d
144 (2d Cir. 1997) (en banc); Gavin v. Branstad, 122 F.3d 1081 (8th Cir.
1997); Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996). Cf. Taylor v. United
States, 143 F.3d 1178 (9th Cir. 1998) (finding § 3626(b)(2) unconstitutional),
opinion withdrawn and en banc rehearing granted, 158 F.3d 1059 (9th Cir.
1998).
II
That leaves the question whether the district court was empowered to enjoin
the operation of § 3626(e)(2)'s automatic stay, and if it was not,
whether that subsection is constitutional. Bearing in mind that we should
try to avoid constitutional questions if we can, we address the question
of statutory interpretation first.
The only other court of appeals to have considered the scope and constitutionality
of (e)(2) is the Sixth Circuit, in its opinion in Hadix v. Johnson, 144
F.3d 925 (6th Cir. 1998). That court concluded that if (e)(2) were read
to mean what it apparently says-that is, as a legislative command that a
stay of prospective relief occurs as a matter of law no later than 90 days
after the state's petition is filed, and that this legislative stay continues
in effect until the findings required by (b)(3) have been made-then it would
be "an unconstitutional incursion by Congress into the powers reserved
for the Judiciary." Id. at 937. In order to avoid a finding of unconstitutionality,
the court chose to adopt the position that the Justice Department had urged
and concluded that the courts "retain the power to suspend the automatic
stay in accordance with general equitable principles." Id. By that,
the Sixth Circuit meant that the automatic stay of (e)(2) could itself be
stayed by a court using the traditional standards for issuing a preliminary
injunction. Id. at 945.
While the decisions of the district courts do not create binding precedents
(particularly not those within the Sixth Circuit, which are now bound by
Hadix), it is nevertheless noteworthy that a number of judges have agreed
with the Sixth Circuit that subpart (e)(2) is unconstitutional if it is
a legislative stay, but they have not agreed that the statute can be saved
by a narrowing interpretation. See United States v. Michigan, 989 F. Supp.
853 (W.D. Mich. 1996); Glover v. Johnson, 957 F. Supp. 110 (E.D. Mich. 1997);
Hadix v. Johnson, 933 F. Supp. 1362 (W.D. Mich. 1996) (Enslen, C.J.); Hadix
v. Johnson, 933 F. Supp. 1360 (E.D. Mich. 1996) (Feikens, J.). The question
is one of first impression in this circuit, and we have benefitted from
the careful consideration that our colleagues on the federal bench have
devoted to it.
We are well aware of the rule requiring courts to construe statutes consistently
with the Constitution, if the language will bear any such construction.
Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades
Council, 485 U.S. 568, 575, 108 S. Ct. 1392, 99 L.Ed.2d 645 (1988), citing
Hooper v. California, 155 U.S. 648, 657, 15 S. Ct. 207, 39 L.Ed. 297 (1895);
N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S. 490, 500, 99 S. Ct. 1313,
59 L.Ed.2d 533 (1979). But the qualification that the language must be able
to bear the constitutional interpretation is an important one. Courts cannot
redraft statutes so that they read the way Congress might have written them,
or should have written them. Instead, we must taken the laws as they are
given to us and work with them.
As was the case before the Sixth Circuit, three different views of (e)(2)
have been urged on us: the prisoners argue that it is unconstitutional on
several grounds; the state defends its constitutionality as a mere regulation
of procedure; and the United States is of the view that (e)(2) would be
an unconstitutional violation of either the separation of powers doctrine
or the prohibition against legislative suspension of a particular judgment
if (e)(2) really required automatic stays. The United States argues, however,
that the automatic stay provision should be read to instruct a court reviewing
prospective relief that the court should-but is not required to-stay the
relief, an interpretation that avoids the constitutional flaws.
Before we delve too far into these points, we must decide which reading
of subpart (e)(2) is correct: that of the prisoners and the state, on the
one hand, or that of the United States, on the other. If we agree with the
Sixth Circuit that the (e)(2) stay is discretionary in the final analysis,
then there would be no need to explore the constitutional issues further.
The statute would be reduced to something that placed the burden of moving
for a stay or preliminary injunction on the prisoners rather than the state,
but once the issue was before the court the normal equitable considerations
would determine whether existing decree provisions remained in place pending
a decision on a termination petition, or if they should be modified.1 Subpart
(e)(4) of the statute would in addition make it clear that appellate review
under 28 U.S.C. § 1292(a)(1) was available no matter what the court
called its order "staying, suspending, delaying, or barring the operation
of the automatic stay described in paragraph (2). . . ."
Although we have the highest regard for our Sixth Circuit colleagues and
the concerns that motivated them to adopt the Justice Department's view
of (e)(2), we cannot agree that the language of that subpart can be pushed
this far. First, Congress used unequivocal words when it drafted (e)(2).
A motion to modify or terminate prospective relief made under part (b) shall
operate as a stay. Congress specified that the stay would be automatic.
Finally, it specified not only a clear starting point, but also the ending
point for the stay. Even though we do not lightly assume that Congress meant
to restrict the equitable powers of the federal courts, we find it impossible
to read this language as doing anything less than that.
Recognizing that it was hard to find internal support for its reading within
(e)(2) alone, the Sixth Circuit relied in part on the fact that (e)(4) makes
orders staying or otherwise barring the automatic stay automatically appealable.
Hadix, 144 F.3d at 936. Why would Congress have included this in the statute,
they reasoned, if it did not anticipate that courts would continue to have
the power to issue equitable relief against the stay? In our view, there
is an answer to that question. The drafters of the PLRA realized that they
were skating close to the line in (e)(2), and they wanted to ensure that
the issue that is now before us could be resolved in an interlocutory appeal.
The fact that a district court's effort to stay the (e)(2) stay can be appealed
says nothing about what an appellate court must do once it has the case.
Congress undoubtedly hoped that the appellate courts would reject these
district court efforts and enforce the regime that (e)(2) sets up. That,
however, is possible only if (e)(2) as we believe it must be read is constitutional,
and so we now turn to that question.
The state (which as we said agrees with our reading of the statute) has
defended (e)(2) as nothing more than the establishment of a procedure that
assures prompt review of prospective injunctive relief in prison litigation.
All the prisoners need do, the state asserts, is to come forward with evidence
before the 30th day (or the 90th day, if the court grants an extension of
time) showing that conditions at the prison require continuation of some
or all of the prospective injunctive relief. In other words, the prisoners
must make a complete showing on the merits of the termination petition,
the state must complete its rebuttal of that showing, and the court must
make its ruling, all within the 90-day period. The state analogizes (e)(2)
to the 10-day limit on TROs found in Fed. R. Civ. P. 65(b), to the five-day
limit on TROs under the Norris-LaGuardia Act, 29 U.S.C. § 107, and
to the automatic stay in bankruptcy cases, 11 U.S.C. § 362.
There are important differences, however, between the automatic stay of
(e)(2) and the statutes on which the state relies. Both the 10-day limit
on TROs found in Rule 65(b) and the analogous limit in the Norris-LaGuardia
Act respond to the particular problems of ex parte proceedings. Nothing
in those laws purports to restrict the power of the district court to enter
a preliminary injunction that preserves the status quo beyond the period
of time allowed. The automatic stay in bankruptcy also does not help the
state's case- indeed, if anything it undermines it. This is because the
automatic stay of § 362, which is triggered by the filing of a petition
in bankruptcy, see 11 U.S.C. § 362(a), has the effect of preserving
the court's equitable powers over the entirety of the bankruptcy estate,
not superseding or undermining them. In essence, it freezes everything external
to the bankruptcy proceeding, including private transactions and state court
litigation, and it has the effect of requiring other federal court proceedings
to take a back seat to the federal bankruptcy court. Furthermore, litigants
routinely petition the bankruptcy court to modify the stay, and there is
no hint that Congress did not want the court to exercise that power (as
there is with the PLRA). Allocations of power within the federal court system
are a common feature of procedural legislation, and principles of federal
supremacy account for the effect that the automatic stay has on state court
proceedings.
The automatic stay of (e)(2), in contrast, operates directly on the internal
adjudication of a case in federal court. It strips from the court the authority
to decide whether the status quo (defined by the earlier decree the court
entered that required prospective relief) should be continued or modified
pending the court's decision on the immediate termination petition. It does
so in a way that leaves the power to continue the decree entirely in the
hands of the party that files the motion for termination. This is so because
the automatic stay must take effect no later than the 90th day after the
petition is filed unless the court has issued a final order on the termination
motion. Yet the state need only drag its feet or confront genuine difficulty
in responding to requests for information that is relevant to the question
whether the decree continues to be necessary, as defined by (b)(2) and (b)(3),
in order to win its stay. Given the complexity of much prison litigation,
we would be reluctant to try to address the problem of delay through satellite
litigation over whether the state was "really" acting in bad faith
or not, and imposing adverse fact-findings on a state that was trying to
manipulate the process so that it won an automatic stay. We are also concerned
that such an approach would once again read too much into the statute. Section
3626 constrains the authority of the district courts to impose and sustain
prospective relief. It says nothing about conscripting states into this
process, and we see nothing in the overall tenor of § 3626 that would
justify superimposing on it a rule that a state risks the denial of its
motion for termination on the merits if it does not (or cannot) comply with
the (e)(2) time limits.
We do not suggest that Congress cannot prescribe rules of practice and procedure
for the federal courts, and, contrary to the dissent's dire predictions,
nothing in this opinion in any way threatens the ordinary time limits that
pervade both federal procedural rules and statutes. First, it is plain that
Congress has the power to prescribe procedural rules. See Hanna v. Plumer,
380 U.S. 460, 472, 85 S. Ct. 1136, 14 L.Ed.2d 8 (1965); Sibbach v. Wilson
& Co., 312 U.S. 1, 9, 61 S. Ct. 422, 85 L.Ed. 479 (1941). Many time
limits are subject to adjustment, and thus are irrelevant for present purposes.
Some both define the jurisdiction of a court and establish when a judgment
is final, such as the time for filing an appeal from a final judgment, Fed.
R. App. P. 4(a), (b), or the time within which a motion to correct a sentence
must be filed, Fed. R. Crim. P. 35(c). But that is not what (e)(2) does,
and it is important to appreciate just how unusual a provision it is. As
the Sixth Circuit also recognized, temporal strictures upon substantive
judicial decision making are scarce. Hadix, 144 F.3d at 943-44 n.15. Where
such rules and statutes tie a judicial outcome to a time restriction, the
court usually retains discretion to override the restriction for good cause.
Id. For example, the Speedy Trial Act sets forth time limits for criminal
trials, including a requirement that if the Act's deadlines are violated,
the charges must be dismissed. See 18 U.S.C. § 3161; see also United
States v. Brainer, 691 F.2d 691, 695-99 (4th Cir. 1982) (upholding the Speedy
Trial Act against a challenge that the Act violates the doctrine of separation
of powers). Unlike § 3626(e)(2), however, the Act contains a long list
of exceptions, see 18 U.S.C. § 3161(h), including a broad provision
that authorizes judges to exclude from the time calculations "any period
of delay" upon "finding[ ] that the ends of justice served by
taking such action outweigh the best interest of the public and the defendant
in a speedy trial." 18 U.S.C. § 3161(h)(8)(A). See also Fed. R.
Civ. P. 60(b) (authorizing courts "upon such terms as are just"
to relieve a party from a final judgment, including a judgment for prospective
relief).
Similarly, the Antiterrorism and Effective Death Penalty Act ("AEDPA")
states that "[t]he Court of Appeals shall grant or deny the authorization
to file a second or successive application [for a writ of habeas corpus]
not later than 30 days after the filing of the motion." 28 U.S.C. §
2244(b)(3)(D). For many of the same reasons that animate us today, however,
the courts of appeals have ruled that this time limit may be modified if
the court finds it necessary. See, e.g., In re Siggers, 132 F.3d 333, 336
(6th Cir. 1997) (reading the language of § 2244(b)(3) as "hortatory
or advisory rather than mandatory," in order to avoid constitutional
difficulties); Galtieri v. United States, 128 F.3d 33, 36-37 (2d Cir. 1997)
(ruling that § 2244(b)(3) must be applied "flexibly," and
concluding that the courts should not forego "reasoned adjudication"
in the small number of cases that cannot be resolved within 30 days): In
re Vial, 115 F.3d 1192, 1194 n.3 (4th Cir. 1997) (noting that the court
exceeded the 30-day limit but concluding that the importance of the issue
justified the delay). As we noted earlier, this is precisely the kind of
flexibility that we believe is foreclosed to the courts under the language
of § 3626(e)(2).2
The fact that Congress can impose time limits on executive agencies is of
little assistance here. Unlike temporal limitations on judicial decision
making, such constraints on agency action are prevalent throughout administrative
law. See, e.g., 7 U.S.C. § 2a(iv)(II) (setting a 30-day time limit
for Security and Exchange Commission's review of a board of trade's application
for designation as a contract market). Where agencies are involved, the
judgments subject to legislative encroachment were not rendered by Article
III courts but by entities that the Constitution places under the control
of Congress. The distinction between those two situations motivated the
Court's ruling in Paramino Lumber Co. v. Marshall, 309 U.S. 370, 60 S. Ct.
600, 84 L.Ed. 814 (1940), cited with approval in Plaut v. Spendthrift Farm,
Inc., 514 U.S. 211, 232, 115 S. Ct. 1447, 131 L.Ed.2d 328 (1995), where
it upheld a private bill that reopened an administrative order, noting that
the order was not an adjudication and therefore the legislative act did
not constitute "an excursion of Congress into the judicial function"
or "affect[] judicial judgments." 309 U.S. at 381 & n. 15,
60 S. Ct. 600. Last, we think there is an important difference between legislation
that affects prospective relief, and legislation that prevents the court
from preserving the status quo in whole or in part during the pendency of
a suit. The former is permissible, as Plaut observed, but the latter touches
upon the heart of the adjudicative process and as such is reserved for the
Judicial Branch of government-a point on which we now elaborate.
The prisoners have urged that (e)(2) violates Article III and the separation
of powers principle, as well as the due process clause, and thus that it
must be declared unconstitutional. Such a finding would not have any effect
on the remainder of the PLRA, because Congress included an express severability
clause in the statute. See Pub. L. No. 104-134, Title I, § 101(a),
Apr. 26, 1996, 110 Stat. 1321-77, renumbered Title I, Pub.L. No. 104-140,
§ 1(a), May 2, 1996, 110 Stat. 1327. We conclude, as did our colleagues
in the Sixth Circuit when they analyzed the statute according to the reading
we have adopted, that (e)(2) violates the separation of powers principle
because it is a direct legislative suspension of a court order. See Hadix,
144 F.3d at 939. Because we believe that (e)(2) represents an unconstitutional
legislative encroachment into the powers reserved to the judiciary, we do
not need to reach the prisoners' due process arguments.
Under the Supreme Court's decision in Plaut, we know that Congress cannot
vest review of the decisions of Article III courts in officials of the executive
branch. See 514 U.S. at 218, 115 S. Ct. 1447, citing Hayburn's Case, 2 U.S.
(2 Dall.) 408, 1 L.Ed. 436 (1792), and Chicago & Southern Air Lines,
Inc. v. Waterman S.S. Corp., 333 U.S. 103, 68 S. Ct. 431, 92 L.Ed. 568 (1948).
The Sixth Circuit found, and we agree, that there is no principle under
which the legislative branch should enjoy a privilege of reviewing particular
decisions of Article III courts that the executive branch does not have.
See Hadix, 144 F.3d at 940. As the Supreme Court explained in Plaut, "the
Framers crafted [Article III] . . . with an expressed understanding that
it gives the Federal Judiciary the power, not merely to rule on cases, but
to decide them, subject to review only by superior courts in the Article
III hierarchy." 514 U.S. at 218-19, 115 S. Ct. 1447. Yet (e)(2) places
the power to review judicial decisions outside of the judiciary: it is a
self-executing legislative determination that a specific decree of a federal
court-here the decree addressing conditions at Pendleton- must be set aside
at least for a period of time, no matter what the equities, no matter what
the urgency of keeping it in place. This amounts to an unconstitutional
intrusion on the power of the courts to adjudicate cases.
Unlike the Sixth Circuit, we also find that (e)(2) violates the principle
articulated in United States v. Klein, 80 U.S. (13 Wall.) 128, 20 L.Ed.
519 (1871). In Klein, Congress passed a statute providing that individuals
whose property was seized during the Civil War could recover the property
by showing that they had not offered "aid or comfort" to the enemy
during the war. Klein, 80 U.S. at 131. The Supreme Court subsequently held
that a presidential pardon was a sufficient showing that an individual was
not a Confederate sympathizer. Reacting to this decision, Congress adopted
legislation that required the court to consider a presidential pardon as
conclusive evidence of the person's disloyalty to the United States and
to dismiss appeals in cases seeking to recover the property of such persons.
The Klein Court struck down this law, holding that Congress does not have
the power to impose a rule of decision for pending judicial cases, apart
from its power to change the underlying applicable law.
Applying Klein to 18 U.S.C. § 3626(e)(2), the Sixth Circuit focused
on the broader remedial provisions of the PLRA and found that the automatic
stay did not mandate a rule of decision. Hadix, 144 F.3d at 940. The PLRA
simply confined the relief that may be ordered in a prison conditions case
to measures strictly designed to address violations of federal law. Id.
But, as we have been emphasizing, (e)(2) does not directly implicate the
final decision on the merits of the (b)(2) termination motion. Instead,
it addresses what should happen during the pendency of the case. For that
time period, the statute does mandate a particular rule of decision: the
prospective relief must be terminated. In our view, this falls comfortably
within the rule of Klein, and as such, it exceeds the power of the legislative
branch.
Our determination that the automatic stay provision is not enforceable does
not mean that courts should not try to conform their conduct to it. Indeed,
the contrary is true: we hold that the district courts must conform their
actions to the time limits in § 3626(e)(2) unless compelling reasons
for setting them aside can be articulated. On an interlocutory appeal under
§ 3626(e)(4), this court has the power to require either prompt action
or a stay of prospective relief by finding that a recalcitrant judge has
abused her discretion. In passing the PLRA, Congress sought to quell the
perceived tendency of federal courts to micro-manage state prisons by limiting
the availability of consent decrees and other judicially-imposed prospective
relief. See H.R. Rep. No. 21, 104th Cong., 1st Sess. 9 (1995) (noting that
federal courts have "used these consent decrees to intrude into a state
criminal justice system and seriously undermine the ability of the local
justice system to dispense any true justice"). The PLRA accomplishes
this goal, in part, by "includ[ing] provisions that will guard against
court-ordered [remedies] dragging on and on, with nothing but the whims
of federal judges sustaining them." H.R. Rep. No. 21, at 8.
It may be, however, that in some cases the courts will not be able to carry
out their adjudicative function in a responsible way within the time limits
imposed by (e)(2). See Hadix, 144 F.3d at 944. Given the command of the
PLRA to tailor relief to the least restrictive alternative, and to take
every step to ensure that an injunction does not stray beyond the requirements
of federal law, the district courts will have a complex task on their hands.
Some decrees under review will have been the result of years of litigation,
and in considering whether termination is proper under § 3626(b)(2),
or whether newly tailored relief should continue under § 3626(b)(3),
the court may need not only to review a massive record, but also to take
new evidence. In many other cases, like this one, the decree will be the
result of a settlement between the parties and the record may be far too
scant to make the required determinations. See generally Rufo v. Inmates
of Suffolk County Jail, 502 U.S. 367, 378, 112 S. Ct. 748, 116 L.Ed.2d 867
(1992) (holding that a Fed. R. Civ. P. 60(b) motion may be used to seek
modification of a consent decree). The court will have the obligation to
supplement the record so that its final orders comply with the statute,
and both sides will have the right to present argument on this point. Even
though Congress has the power to regulate the jurisdiction of the inferior
federal courts, Keene Corp. v. United States, 508 U.S. 200, 207, 113 S.
Ct. 2035, 124 L.Ed.2d 118 (1993), citing Finley v. United States, 490 U.S.
545, 548, 109 S. Ct. 2003, 104 L.Ed.2d 593 (1989), under Klein it cannot
take away the power of the court in a particular case to preserve the status
quo while it ponders these weighty questions.
This conclusion makes it unnecessary for us to reach the alternate constitutional
grounds on which the prisoners have relied. We emphasize again that our
ruling is a narrow one. It does not prevent the state from asking that the
prospective relief be stayed while an immediate termination motion is pending.
Furthermore, in Berwanger this court has upheld the constitutionality of
the heart of this part of the PLRA, which is the (b)(2) right to immediate
termination. Here, we hold only that 18 U.S.C. § 3626(e)(2) is unconstitutional
insofar as it is a legislatively commanded, self-executing stay of an existing
court order that requires remedies in a prison conditions case. The district
judge did not abuse his discretion at the time he issued his order refusing
to stay prospective relief in this case, while he considered the state's
petition for immediate termination of the decree governing the Pendleton
Correctional Facility.3 On the understanding that the PLRA requires the
district court to take every possible measure to expedite its final ruling
on the state's motion, and if need be to reconsider the propriety of an
interim stay, the order of the district court is AFFIRMED.
* This opinion is being issued in typescript. A printed copy will follow.
1 Most of the statutes cited by the dissent operate in precisely this fashion.
See post at 451-53. Thus, for example, a party who wishes to be exempted
from the automatic stay in bankruptcy need only petition the bankruptcy
court for relief, and that court can lift the stay. Similarly, the Speedy
Trial Act contains numerous safeguards that allow a district court to modify
the time limits when good cause exists to do so. If these statutes offer
good analogies to § 3626(e)(2), then logically the dissent should agree
with the position of the Sixth Circuit: the automatic stay of (e)(2) goes
into effect, but the district court is free to annul the stay on traditional
equitable grounds. As the Sixth Circuit held, under that reading there plainly
would be no constitutional flaw in the structure of the system.
2 At least one of the other examples cited by the dissent has been construed
the same way, namely, the statute governing appeals by persons incarcerated
for contempt of a grand jury, 28 U.S.C. § 1826(b), see In the Matter
of a Witness Before the Special October 1981 Grand Jury, 722 F.2d 349, 353
(7th Cir. 1983).
3 Although the Sixth Circuit and this panel have arrived at the same ultimate
conclusion-namely, that the district courts retain the power notwithstanding
§ 3626(e)(2) either to stay prospective relief pending adjudication
of a § 3626(b)(2) motion or to refuse a stay-the reasoning underlying
our respective decisions is sufficiently at odds that we have circulated
this opinion to the full court under Circuit Rule 40(e). A majority of the
judges in regular active service did not wish to hear this case en banc.
Chief Judge Posner and Circuit Judges Easterbrook and Manion voted to rehear
en banc.
EASTERBROOK, Circuit Judge, with whom POSNER, Chief judge, and MANION, Circuit
Judge, join, dissenting from the denial of re hearing en banc.
The panel
holds an Act of Congress unconstitutional-and not some musty statute overtaken
by a change of constitutional doctrine, but the flywheel of recent legislation.
Moreover, the panel's approach is not supported by either the text of the
Constitution or any doctrine developed by the Supreme Court, and if the
panel is right then many other important statutes and rules are unconstitutional.
I agree with the panel that § 3626(e)(2) cannot bear the reading given
it by Hadix v. Johnson, 144 F.3d 925 (6th Cir. 1998). Congress set a deadline;
Hadix turns it into mush. The creation of a conflict is justified. But we
should not then use constitutional grounds to knock § 3626(e)(2) out
of commission. Judge Norris's separate opinion in Hadix, 144 F.3d at 950-52,
rightly concludes that this statute is within Congress' power.
The Prison Litigation Reform Act substantially changes the criteria that
permit a federal court to take over the management of a prison. Congress
directed courts to apply the new criteria to existing decrees as well as
to future ones. That change properly may be applied to ongoing relief. So
we hold today in Berwanger v. Cottey, following the lead of many other courts.
See Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649 (1st Cir. 1997);
Benjamin v. Jacobson, 172 F.3d 144 (2d Cir. 1999) (en banc); Imprisoned
Citizens Union v. Ridge, 169 F.3d 178 (3d Cir. 1999); Plyler v. Moore, 100
F.3d 365 (4th Cir. 1996); Hadix v. Johnson, 133 F.3d 940 (6th Cir. 1998);
Gavin v. Branstad, 122 F.3d 1081 (8th Cir. 1997); Dougan v. Singletary,
129 F.3d 1424 (11th Cir. 1997). The only contrary appellate decision, Taylor
v. United States, 143 F.3d 1178 (9th Cir. 1998), has been withdrawn on the
grant of rehearing en banc, 158 F.3d 1059 (9th Cir. 1998).
Many judges are reluctant to undo their own handiwork and may share the
view of the district judge in Pasadena City Board of Education v. Spangler,
427 U.S. 424, 433, 96 S. Ct. 2697, 49 L.Ed.2d 599 (1976), that relief should
continue for the judge's lifetime. Congress therefore designed a mechanism
to ensure the application of the new rules to the stock of existing decrees-
and to facilitate reexamination even of post-PLRA orders, so that state
and local governments may regain control of their institutions once an injunction
has achieved its purpose of correcting violations of federal law. See, e.g.,
Missouri v. Jenkins, 515 U.S. 70, 102, 115 S. Ct. 2038, 132 L.Ed.2d 63 (1995);
People Who Care v. Rockford Board of Education, 171 F.3d 1083, 1090-91 (7th
Cir. 1999).
Once a year has passed since the last time the judge addressed the subject
(or two years since the decree's entry or the PLRA's enactment) any party
may file a motion to terminate relief. 18 U.S.C. § 3626(b)(1). The
decree then must be terminated, § 3626(b)(2), unless the judge determines
"that prospective relief remains necessary to correct a current and
ongoing violation of the Federal right, extends no further than necessary
to correct the violation of the Federal right, and that the prospective
relief is narrowly drawn and the least intrusive means to correct the violation."
18 U.S.C. § 3626(b)(3). Deadlines are essential lest these rules prove
nugatory, so § 3626(e)(1) requires the court to decide "promptly",
and § 3626(e)(2) quantifies "prompt" as within 30 days, with
a possible extension to 90 under § 3626(e)(3). Subsection (e)(2) calls
for a stay rather than termination of the decree. Like the automatic stay
in bankruptcy law, 11 U.S.C. § 362, subsection (e)(2) does not cancel
any judicial decision; it simply stays its effectiveness until the judge
renders a decision on the merits. Subsection (e)(2) thus gives the judge
a reason to rule promptly. Our case shows the need for such an incentive.
Having declared subsection (e)(2) to be unconstitutional, the district judge
proceeded to ignore subsection (e)(1). Defendants sought termination of
the decree by a motion in June 1997. Almost two years have passed, but the
district judge has yet to take a single step toward acting on this request-and
the last word of the panel's opinion is "affirmed." A process
that is supposed to be rapid drags on with no end in sight.
According to the panel, subsection (e)(2) is unconstitutional because it
"operates directly on the internal adjudication of a case in federal
court." Maj. op. 444. This is not an accurate description of the statute.
Although subsection (e)(1) tells courts how to behave ("promptly rule"),
subsection (e)(2) does not. Like the automatic stay in bankruptcy, this
statute tells the parties whether they can take advantage of a judgment;
it does not tell judges when, how, or what to do, but specifies what happens
if the judge does not act. If 30 days pass without action, prospective relief
is automatically stayed. The judge can devote his time to the criminal docket
or whatever he deems more pressing than prison-reform litigation. But even
if we understand § 3626(e)(2) as affecting the court's allocation of
time (which it will do indirectly; that's its point), why is this a constitutional
problem?
Article III establishes three safeguards of judicial independence: tenure
of office, protection against financial penalties, and the rule (an implication
of establishing a "judicial Power") that final judgments must
be carried out. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 115 S.
Ct. 1447, 131 L.Ed.2d 328 (1995). An automatic stay following 30 days of
judicial inaction does not undermine any of these. The judge is 100% in
charge. Stays do not conflict with tenure, salary protection, or respect
for judgments. Bankruptcy practice shows this; often the principal reason
for filing is to suspend the effectiveness of a judgment (such as a judgment
of foreclosure and sale) pending further decision. Consider, too, Fed. R.
Civ. P. 65(b), which limits a temporary restraining order to 10 days (with
a single extension to 20). Just as subsection (e)(2) causes an injunction
to lapse unless the judge makes findings within 30 (or 90) days, so Rule
65(b) causes an injunction to lapse unless the judge makes findings within
10 (or 20) days. No one thinks that Rule 65(b) is an unconstitutional intrusion
on the way judges manage their business; instead it protects defendants
against unwarranted judicial interference. Just so with § 3626(e)(2):
It ensures that state and local governments are not burdened by federal
control of their institutions for longer than is necessary.
My colleagues on the panel treat Rule 65(b) as justified by the need to
limit ex parte orders, and this is indeed good support for the rule-but
support that is unrelated to Article III. It mixes up distinct issues to
distinguish Rule 65(b) from § 3626(e)(2) by pointing to the rights
of litigants. If Congress should provide that injunctions in prison litigation
expire five minutes after the court receives a motion, this would indeed
be unconstitutional, but not because of anything in Article III. The problem
with my hypothetical statute would be the due process clause, which entitles
litigants to a meaningful opportunity to be heard before a final decision.
Section 3626(e)(2) is not problematic under the due process clause. A stay
is not a final decision (it is more like a TRO, which may issue ex parte),
and 30 days is adequate for the litigants to be heard (just as the 20-day
window under Rule 65 affords time for a hearing). The panel's concern about
defendants who drag their heels in an effort to prevent the judge from reaching
a decision (maj. op. 444) has nothing to do with Article III and the court's
internal operations, and everything to do with the due process rights of
the litigants. The possibility of foot-dragging under § 3626(e)(2)
is less serious than under Rule 65(b), for a defendant's barricade of the
plaintiff's access to information would be "good cause" to postpone
the automatic stay until 90 days under subsection (e)(3), and this extra
time makes the tactic less likely to succeed than when the defendant need
stall for only 20 days. Courts can foil delaying maneuvers by imposing sanctions
on parties that fail to cooperate in discovery, see Fed. R. Civ .P. 37,
and by drawing adverse inferences about missing evidence. The inference
then could support a finding under § 3626(b)(3). None of this, however,
has anything to do with Article III or the separation of powers.
Someone who thinks that the PLRA is an intrusion on the powers of the judiciary
should point not to § 3626(e)(2), which just goads judges to get a
move on, but to § 3626(b)(2), which calls for the "immediate termination"
of injunctive relief on motion of a party. Yet we hold in Berwanger-and
the panel in French agrees, maj. op. 441-that subsection (b)(2) is constitutional,
for Congress may require courts to revisit prospective relief when it changes
generally applicable rules of law. See Robertson v. Seattle Audubon Society,
503 U.S. 429, 112 S. Ct. 1407, 118 L.Ed.2d 73 (1992); Rufo v. Inmates of
Suffolk County Jail, 502 U.S. 367, 112 S. Ct. 748, 116 L.Ed.2d 867 (1992);
System Federation No. 91 v. Wright, 364 U.S. 642, 81 S. Ct. 368, 5 L.Ed.2d
349 (1961). The PLRA creates new substantive requirements, and the legislature
may require all ongoing relief-whether based on pre-PLRA or post-PLRA decrees-to
conform. If subsection (b)(2) is constitutional, then Congress must be entitled
to require its effective implementation, which is all subsection (e)(2)
does.
Federal judges have no constitutional power to frustrate through delay the
implementation of valid legislation. I am not aware of any decision by the
Supreme Court holding, or even suggesting, that statutes requiring judges
to adjudicate with dispatch pose constitutional problems. Many laws, of
unquestioned validity, require the President and his subordinates to meet
deadlines for action; the Judicial Branch has no more freedom from time
pressure than does the Executive Branch. If the separation of powers protects
judges from time limits, it protects the President too. The panel is unwilling
to extend any such protection to the President; hundreds if not thousands
of laws would be swept away. But as a matter of constitutional language
and structure, the Judicial and Executive Branches are identically situated
with respect to deadlines that affect the sequence in which they handle
business.
If there is a constitutionally based right of independence in the administration
of judicial business, it invalidates 28 U.S.C. §§ 144 and 455,
which prescribe judicial conduct much more directly than does § 3626(e)(2).
Until 1911, when § 144 was enacted, rules of disqualification were
based on the common law. A formal Code of Conduct for United States Judges
was first adopted in 1973. Not until 1974 was there any requirement that
federal judges refrain from sitting when their impartiality might reasonably
be questioned. 28 U.S.C. § 455(a). Thoroughgoing application of the
panel's approach would annul these statutes and return all ethical standards
to judicial hands. But if a legislature has the constitutional authority
to strip judges of the power to render decisions at all (and this is what
§ 144 and § 455 do), it has the authority to tell judges to devote
priority attention to cases that the legislature deems vital. Statutes specifying
procedures for adjudication have been with us since the beginning of the
republic (see Act of Sept. 24, 1789, ch. 20, 1 Stat. 73, 83; Act of Sept.
29, 1789, ch. 21, 1 Stat. 93), something one cannot say about statutory
ethics rules. But if the process of adjudication really is independent of
legislative control, all procedural rules predating the Rules Enabling Act
of 1936-and all statutes overriding rules promulgated by judges under that
law-must be unconstitutional too.
Interference with judges' allocation of time is only one of the panel's
objections to § 3626(e)(2). The other rests on United States v. Klein,
80 U.S. (13 Wall.) 128, 20 L.Ed. 519 (1871), which the panel reads as establishing
the principle that "Congress does not have the power to impose a rule
of decision for pending judicial cases, apart from its power to change the
underlying applicable law." Maj. op. 446. Whether Klein stands for
this proposition is an interesting question, see Seattle Audubon Society,
503 U.S. at 441, 112 S. Ct. 1407, but not one we need consider. Subsection
(e)(2) does not establish any "rule of decision for pending judicial
cases"; the rule of decision comes from § 3626(b)(3), a statute
that assuredly makes a "change [in] the underlying applicable law."
Many judgments governing prison conditions are based on the parties' consent,
which may be unrelated to the requirements of federal law. See Firefighters
Local 93 v. City of Cleveland, 478 U.S. 501, 522, 106 S.Ct. 3063, 92 L.Ed.2d
405 (1986): "it is the agreement of the parties, rather than the force
of the law upon which the complaint was originally based, that creates the
obligations embodied in a consent decree." Some decrees depend on a
mixture of state and federal obligations. But after § 3626(b)(3) prospective
relief is limited strictly to enforcing the requirements of federal law,
and the relief must be the minimum necessary to vindicate the federal right.
That is a substantial change. All § 3626(e)(2) does is stay a decree's
effectiveness until the court completes the task of applying the new rule
of law. An automatic stay pending final decision no more violates the principle
of Klein than does the automatic stay in bankruptcy law, or the automatic
termination of a TRO under Rule 65(b). Section 3626(e)(2) requires courts
to depart from the approach they take when revisiting other decrees, but
"Congress may intervene and guide or control the exercise of the courts'
discretion". Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.
Ct. 1798, 72 L.Ed.2d 91 (1982) (emphasis added).
If § 3626(e)(2) is unconstitutional, then a long list of statutes is
in jeopardy. I have mentioned a few-the automatic stay in bankruptcy, rules
for judicial disqualification, Fed. R. Civ. P. 65(b)-but there are more.
Here are some members of the endangered species.
1. The Bankruptcy Code provides for an automatic stay of all legal claims,
including the enforcement of judgments, 11 U.S.C. § 362(a)(2), against
the debtor. The stay lasts until a judge comes to a conclusion about the
subject, just as with § 3626(e)(2). But while, under § 3626(e)(2),
the judge has 30 or 90 days to act before the stay takes effect, under §
362 the judge has zero days. So if § 3626(e)(2) violates Article III
by giving the judge too little time-and Klein, by staying a judgment without
an intervening change of substantive law-then § 362 is worse on both
counts. (Section 362 also is like § 3626(e)(2) because it does not
require the judge to act; it just deprives a litigant of a judgment's benefits
until the judge does act.) One can't logically distinguish § 362 by
saying that Congress has special powers over bankruptcy or that the automatic
stay helps to coordinate the handling of claims. The bankruptcy power is
no different from § 5 of the 14th Amendment, which undergirds §
3626. Legislative powers are pertinent to the question whether Congress
may alter private rights; they are not pertinent to the question whether
Article III contains a judicial immunity from time limits, or prevents judgments
from being subject to stay. Buckley v. Valeo, 424 U.S. 1, 132-37, 96 S.
Ct. 612, 46 L.Ed.2d 659 (1976), and its successors reject any argument that
Congress' "special competence" over such- and-such a subject enables
it to enact a law that violates the separation of powers. That a statute
is a sensible way to deal with a problem does not save it against a separation-of-powers
challenge. See INS v. Chadha, 462 U.S. 919, 944, 103 S. Ct. 2764, 77 L.Ed.2d
317 (1983); Bowsher v. Synar, 478 U.S. 714, 722, 736 106 S. Ct. 3181, 92
L.Ed.2d 583 (1986).
2. The Speedy Trial Act requires the court to try the defendant within 70
days or dismiss the indictment. 18 U.S.C. §§ 3161, 3162(a)(2).
This statute, like § 3626(e)(2), does not require the court to act,
but establishes the consequence of delay. Although courts can grant extensions
of the 70-day period, this can't matter to the constitutional analysis.
My colleagues' objection to § 3626(e)(2) is not that the time is too
short-a claim that could not be reconciled with Rule 65(b)-but that it establishes
a deadline. Any other deadline would be equally offensive to the separation
of powers. When the fourth circuit sustained the Speedy Trial Act against
an attack based on Article III, it rejected the interpretation of Klein
that our panel embraces. United States v. Brainer, 691 F.2d 691, 695-96
(4th Cir. 1982).
3. Appeals by persons incarcerated for contempt of a grand jury must be
decided within 30 days. 28 U.S.C. § 1826(b). This statute operates
directly on the judge rather than on the litigants.
4. The court of appeals must grant or deny, within 30 days, an application
for leave to commence a second or successive collateral attack. 28 U.S.C.
§§ 2244(b)(3)(D).
5. Chapter 154 of the Judicial Code (added by the AEDPA) sets multiple time
limits in capital cases. 28 U.S.C. § 2266(b). These are binding rather
than hortatory. Section 2266(b)(4)(B) says that a state may "enforce"
these limits by mandamus, and that the court of appeals "shall act
on the petition for a writ of mandamus not later than 30 days after the
filing of the petition."
6. Pretrial detention following arrest can't exceed 10 days unless the court
makes specified findings. 18 U.S.C. § 3142(d). This is almost completely
parallel to § 3626(e)(2)-and it won't do to distinguish the two by
saying that § 3142(d) protects the right of suspects to liberty. That
would be irrelevant to the independence of the judiciary under Article III,
the fulcrum of the panel's opinion, and is at all events no distinction:
§ 3626(e)(2) protects the rights of states to be free from unwarranted
injunctions of indefinite duration.
7. The criminal rules contain many time limits: Rule 35(c) caps at 7 days
the time to correct an error in a sentence (note that this is an outer limit
for judicial action, not for a party to make a motion); Rule 29(c) gives
a judge only 7 days to entertain (or extend the time to make) a motion for
acquittal, and this time can't be further extended. Carlisle v. United States,
517 U.S. 416, 116 S. Ct. 1460, 134 L.Ed.2d 613 (1996). See also Rules 33
and 34-more time limits that apply to judges, not just counsel. Rule 45(b)
forbids the enlargement of time specified by "Rules 29, 33, 34 and
35, except to the extent and under the conditions stated in them."
The district judge in Carlisle treated the 7-day time limit for action in
Rule 29(c) as advisory; the Supreme Court disagreed; but if our panel is
right, then Carlisle is not only wrong but also unconstitutional, for if
the judge fails to act within 7 days defendants may lose valuable rights
(and in Carlisle did lose a valuable right-an acquittal!).
8. Former Fed. R. Crim. P. 35 set a limit of 120 days for action on motions
to reduce sentence, and strict enforcement of this limit was endorsed by
United States v. Addonizio, 442 U.S. 178, 99 S. Ct. 2235, 60 L.Ed.2d 805
(1979). In United States v. Kimberlin, 776 F.2d 1344 (7th Cir. 1985), and
Gaertner v. United States, 763 F.2d 787 (7th Cir. 1985), we held that this
time limit was "jurisdictional" and thus prevailed even when the
prisoner's motion was timely and only the judge's delay deprived the defendant
of an opportunity for a lower sentence. If the panel is right, then Addonizio,
Kimberlin, and Gaertner are not only wrong but also unconstitutional.
9. After a defendant is found not guilty by reason of insanity, the judge
must hold within 40 days a hearing to determine whether the person is still
insane and therefore subject to continuing commitment. 18 U.S.C. §
4243(c).
10. Fed. R. Civ. P. 65(b) sets 10-and-20 day limits for temporary restraining
orders. The Norris-LaGuardia Act, 29 U.S.C. § 107, has a 5-day limit.
These time limits force the judiciary to hold hearings and make prompt decisions,
else orders expire, in the same way as does § 3626(e)(2).
My colleagues' response is that these time limits either have escape hatches
despite their absolute language-a response at war with the panel's conclusion
that § 3626(e)(2) does not permit departure on equitable grounds, and
with the Supreme Court's approach to time limits in Carlisle and Addonizio-or
are unconstitutional themselves. Either way, the scope of the panel's decision
is breathtaking. As a practical matter, all of these statutes are gutted.
They go by the boards not because of either the Constitution's text or any
controlling decision of the Supreme Court, but because the panel has invented
a right of the judicial branch to freedom from deadlines. If this does not
meet the standard for en banc review, I don't know what does.
APPENDIX B
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS
DIVISION
No. IP 75-677-C
RICHARD A. FRENCH, ET AL., PLAINTIFFS
v.
JACK DUCKWORTH, ET AL., DEFENDANTS
[Filed: July 11, 1997]
ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
On June 30, 1997, Plaintiffs filed their Motion for a Temporary Restraining
Order or a Preliminary Injunction to Stay the Automatic Termination Provision
of the Prison Litigation Reform Act. At 2:30 p.m., on July 3, 1997, the
Court granted Plaintiffs a Temporary Restraining Order. On July 10, 1997,
the Court held a hearing on Plaintiffs' request for preliminary injunction.
For the reasons stated in the Court's order of July 3, 1997, the Plaintiffs'
motion and presentation at the hearing, and for the principal reason that
the Court believes that 18 U.S.C. § 3626(b)(2) is clearly unconstitutional
as found by other courts, and for that reason that Plaintiffs are likely
to succeed on the merits and Defendants would not be harmed by the entry
of the preliminary injunction, the Temporary Restraining Order of July 3,
1997, is now converted to a preliminary injunction.
Accordingly, there shall be no stay of prospective relief in this matter
and the parties shall continue to comply with this Court's prior orders
and judgments until further order of the Court.
So Ordered.
/s/ S. HUGH DILLIN 7-11-97
S. HUGH DILLIN, Judge
APPENDIX C
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION
No. IP 75-677-C
RICHARD A. FRENCH, ET AL., PLAINTIFFS
vs.
JACK DUCKWORTH, ET AL., DEFENDANTS
[Filed: July 3, 1997]
TEMPORARY RESTRAINING ORDER
This matter came before the Court on consideration of the plaintiffs' motion
for a temporary restraining order and a preliminary injunction and brief
in support of motion for a temporary restraining order and a preliminary
injunction.
Whereupon the Court, having considered the matter and being duly advised
in the premises, now finds that a Temporary Restraining Order should, and
does issue pursuant to 18 U.S.C. § 1345.
The irreparable harm necessary is established in light of the statutory
basis for the issuance of a temporary restraining order under the showing
made by the plaintiffs.
THEREFORE, at 2:00 p.m., on this 3rd day of July, 1997, this Court issues
a Temporary Restraining Order enjoining and prohibiting the automatic termination
provision of the Prison Litigation Reform Act from taking effect.
This Temporary Restraining Order will expire at 2:00 p.m., on the 13th day
of July, 1997 and a hearing on the motion for preliminary injunction is
set for the 10th day of July, 1997 at 10:30 a.m., in Room 243 of the United
States Courthouse, 46 East Ohio Street, Indianapolis, Indiana.
IT IS SO ORDERED.
/s/ S. HUGH DILLIN 7-3-97
S. HUGH DILLIN, Judge
Copies to:
Hamid R. Kashani
Suite 600
445 North Pennsylvania Street
Indianapolis, Indiana, 46204-1806
Kenneth J. Falk
Indiana Civil Liberties Union
1031 East Washington Street
Indianapolis, Indiana, 46202-3952
David A. Arthur
Office of the Indiana Attorney General
Fifth Floor
Indiana Government Center South
402 West Washington Street
Indianapolis, Indiana, 46204-2770
APPENDIX D
18 U.S.C. 3626 provides in relevant part:
Appropriate remedies with respect to prison conditions
(a) REQUIREMENTS FOR RELIEF.-
(1) PROSPECTIVE RELIEF.-(A) Prospective relief in any civil action with
respect to prison conditions shall extend no further than necessary to correct
the violation of the Federal right of a particular plaintiff or plaintiffs.
The court shall not grant or approve any prospective relief unless the court
finds that such relief is narrowly drawn, extends no further than necessary
to correct the violation of the Federal right, and is the least intrusive
means necessary to correct the violation of the Federal right. The court
shall give substantial weight to any adverse impact on public safety or
the operation of a criminal justice system caused by the relief.
* * * * *
(2) PRELIMINARY INJUNCTIVE RELIEF.-In any civil action with respect to prison
conditions, to the extent otherwise authorized by law, the court may enter
a temporary restraining order or an order for preliminary injunctive relief.
Preliminary injunctive relief must be narrowly drawn, extend no further
than necessary to correct the harm the court finds requires preliminary
relief, and be the least intrusive means necessary to correct that harm.
The court shall give substantial weight to any adverse impact on public
safety or the operation of a criminal justice system caused by the preliminary
relief and shall respect the principles of comity set out in paragraph (1)(B)
in tailoring any preliminary relief. Preliminary injunctive relief shall
automatically expire on the date that is 90 days after its entry, unless
the court makes the findings required under subsection (a)(1) for the entry
of prospective relief and makes the order final before the expiration of
the 90-day period.
* * * * *
(b) TERMINATION OF RELIEF.-
(1) TERMINATION OF PROSPECTIVE RELIEF.-(A) In any civil action with respect
to prison conditions in which prospective relief is ordered, such relief
shall be terminable upon the motion of any party or intervener-
(i) 2 years after the date the court granted or approved the prospective
relief;
(ii) 1 year after the date the court has entered an order denying termination
of prospective relief under this paragraph; or
(iii) in the case of an order issued on or before the date of enactment
of the Prison Litigation Reform Act, 2 years after such date of enactment.
(B) Nothing in this section shall prevent the parties from agreeing to terminate
or modify relief before the relief is terminated under subparagraph (A).
(2) IMMEDIATE TERMINATION OF PROSPECTIVE RELIEF.-In any civil action with
respect to prison conditions, a defendant or intervener shall be entitled
to the immediate termination of any prospective relief if the relief was
approved or granted in the absence of a finding by the court that the relief
is narrowly drawn, extends no further than necessary to correct the violation
of the Federal right, and is the least intrusive means necessary to correct
the violation of the Federal right.
(3) LIMITATION.-Prospective relief shall not terminate if the court makes
written findings based on the record that prospective relief remains necessary
to correct a current and ongoing violation of the Federal right, extends
no further than necessary to correct the violation of the Federal right,
and that the prospective relief is narrowly drawn and the least intrusive
means to correct the violation.
(4) TERMINATION OR MODIFICATION OF RELIEF.- Nothing in this section shall
prevent any party or intervener from seeking modification or termination
before the relief is terminable under paragraph (1) or (2), to the extent
that modification or termination would otherwise be legally permissible.
* * * * *
(c) SETTLEMENTS.-
(1) CONSENT DECREES.-In any civil action with respect to prison conditions,
the court shall not enter or approve a consent decree unless it complies
with the limitations on relief set forth in subsection (a).
(2) PRIVATE SETTLEMENT AGREEMENTS.-(A) Nothing in this section shall preclude
parties from entering into a private settlement agreement that does not
comply with the limitations on relief set forth in subsection (a), if the
terms of that agreement are not subject to court enforcement other than
the reinstatement of the civil proceeding that the agreement settled.
(B) Nothing in this section shall preclude any party claiming that a private
settlement agreement has been breached from seeking in State court any remedy
available under State law.
(d) STATE LAW REMEDIES.-The limitations on remedies in this section shall
not apply to relief entered by a State court based solely upon claims arising
under State law.
(e) PROCEDURE FOR MOTIONS AFFECTING PROSPECTIVE RELIEF.-
(1) GENERALLY.-The court shall promptly rule on any motion to modify or
terminate prospective relief in a civil action with respect to prison conditions.
Mandamus shall lie to remedy any failure to issue a prompt ruling on such
a motion.
(2) AUTOMATIC STAY.-Any motion to modify or terminate prospective relief
made under subsection (b) shall operate as a stay during the period-
(A)(i) beginning on the 30th day after such motion is filed, in the case
of a motion made under paragraph (1) or (2) of subsection (b); or
(ii) beginning on the 180th day after such motion is filed, in the case
of a motion made under any other law; and
(B) ending on the date the court enters a final order ruling on the motion.
(3) POSTPONEMENT OF AUTOMATIC STAY.-The court may postpone the effective
date of an automatic stay specified in subsection (e)(2)(A) for not more
than 60 days for good cause. No postponement shall be permissible because
of general congestion of the court's calendar.
(4) ORDER BLOCKING THE AUTOMATIC STAY.-Any order staying, suspending, delaying,
or barring the operation of the automatic stay described in paragraph (2)
(other than an order to postpone the effective date of the automatic stay
under paragraph (3)) shall be treated as an order refusing to dissolve or
modify an injunction and shall be appealable pursuant to section 1292(a)(1)
of title 28, United States Code, regardless of how the order is styled or
whether the order is termed a preliminary or a final ruling.
* * * * *
(g) DEFINITIONS.-As used in this section-
(1) the term "consent decree" means any relief entered by the
court that is based in whole or in part upon the consent or acquiescence
of the parties but does not include private settlements;
(2) the term "civil action with respect to prison conditions"
means any civil proceeding arising under Federal law with respect to the
conditions of confinement or the effects of actions by government officials
on the lives of persons confined in prison, but does not include habeas
corpus proceedings challenging the fact or duration of confinement in prison;
(3) the term "prisoner" means any person subject to incarceration,
detention, or admission to any facility who is accused of, convicted of,
sentenced for, or adjudicated delinquent for, violations of criminal law
or the terms and conditions of parole, probation, pretrial release, or diversionary
program;
* * * * *
(5) the term "prison" means any Federal, State, or local facility
that incarcerates or detains juveniles or adults accused of, convicted of,
sentenced for, or adjudicated delinquent for, violations of criminal law;
(6) the term "private settlement agreement" means an agreement
entered into among the parties that is not subject to judicial enforcement
other than the reinstatement of the civil proceeding that the agreement
settled;
(7) the term "prospective relief" means all relief other than
compensatory monetary damages;
* * * * *
(9) the term "relief" means all relief in any form that may be
granted or approved by the court, and includes consent decrees but does
not include private settlement agreements.
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