Marciano Plata v. Edmund Brown, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARCIANO PLATA; OTIS SHAW; RAY No. 13-15466

STODERD; JOSEPH LONG; LESLIE

RHOADES; GILBERT AVILES; PAUL D.C. No.

DECASAS; STEVEN BAUTISTA; 3:01-cv-01351-

RAYMOND JOHNS; ELIJAH J. TEH

SANDOVAL; GARY ALAN SMITH;

CLIFFORD MYELLE; DONDI VAN

HORN, OPINION

Plaintiffs-Appellees,

MEDICAL DEVELOPMENT

INTERNATIONAL,

Petitioner-Appellee,

v.

EDMUND G. BROWN, JR., Governor

of the State of California; JEFFREY

A. BEARD, Dr., Secretary of the

California Department of

Corrections and Rehabilitation; ANA

J. MATOSANTOS, Director of the

Department of Finance,

Defendants-Appellants,

J. CLARK KELSO,

Receiver-Appellee.

2 PLATA V. BROWN

Appeal from the United States District Court

for the Northern District of California

Thelton E. Henderson, Senior District Judge, Presiding

Argued and Submitted

September 11, 2013—San Francisco, California

Filed May 28, 2014

Before: Mary M. Schroeder and Jay S. Bybee, Circuit

Judges, and Ralph R. Beistline, Chief District Judge.*

Opinion by Judge Schroeder;

Dissent by Judge Bybee

SUMMARY**

Prisoner Civil Rights

The panel construed an appeal, filed by California

Governor Jerry Brown and state officials, as a petition for

writ of mandamus and so construed, denied the petition in an

ongoing prison class action concerning the provision of health

care in California prisons.

*

The Honorable Ralph R. Beistline, Chief United States District Judge

for the District of Alaska, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

PLATA V. BROWN 3

California prisons have been operating under a

receivership since 2006 to comply with consent decrees

aimed at curing egregious constitutional violations. After the

State indicated that it would seek to terminate injunctive

relief under the decrees, the district court ordered the State to

disclose its expert witnesses and their reports 120 days before

moving to terminate. The State contends that the district

court’s order impermissibly delayed its ability to move to

terminate under the Prison Litigation Reform Act and also

impermissibly delayed the automatic stay that would follow

after thirty days elapsed without a district court decision on

the termination motion. See 18 U.S.C. § 3626(b)(1), (e)(2).

The panel determined that because the district court’s

order was interlocutory and procedural in nature, and did not

resolve any issue on the merits, the panel lacked appellate

jurisdiction over the matter. The panel construed the appeal

as a petition for writ of mandamus and considered the issues

under the factors set forth in Bauman v. United States District

Court, 557 F.2d 650, 654–55 (9th Cir. 1977).

The panel held that district court’s order was a sensible

scheduling order designed to provide the court and plaintiffs

with adequate notice of the evidence the State intended to rely

upon in a motion to terminate. The order established a

schedule for expert disclosures that was consistent with the

State’s own time line, and it did not affect the operation of the

Prison Litigation Reform Act’s automatic stay. Because the

panel upheld the district court’s order as consistent with the

provisions of the Prison Litigation Reform Act, it did not

reach plaintiffs’ claim that without the notice provisions of

the order, the automatic stay provision violated due process.

4 PLATA V. BROWN

Dissenting, Judge Bybee stated that the purpose and effect

of the district court’s order was to delay the operation of the

Prison Litigation Act’s automatic stay. Judge Bybee stated

that the order was flatly inconsistent with the Prison

Litigation Act both in text and in spirit.

COUNSEL

Kamala D. Harris, Attorney General of California, Jonathan

L. Wolff, Senior Assistant Attorney General, Thomas S.

Patterson, Supervising Deputy Attorney General, Jose A.

Zelidon-Zepeda (argued), Deputy Attorney General, San

Francisco, California, for Defendants-Appellants.

Donald Specter, Rebekah Evenson, Kelly Knapp (argued),

Prison Law Office, Berkeley, California, for Plaintiffs-

Appellees.

OPINION

SCHROEDER, Circuit Judge:

We deal with still another phase of litigation aimed at

curing egregious constitutional violations in the operation of

the California prison system. The Supreme Court in 2011

said the violations “remain uncorrected” after having

“persisted for years.” Brown v. Plata, 131 S. Ct. 1910, 1922

(2011). The Court there affirmed a three-judge district court

order releasing prisoners in accordance with the strictures of

the Prison Litigation Reform Act (“PLRA”).

PLATA V. BROWN 5

California prisons have been operating under a

receivership since 2006 to comply with consent decrees. This

appeal involves provisions of the PLRA relating to the

termination of such decrees. Congress, concerned by what it

viewed as unnecessary delays in bringing prison litigation to

an end, provided that prison litigation defendants could move

to terminate injunctive relief after two years, and that the

injunction order would be subject to an automatic stay if the

district court took more than thirty days to decide the motion.

18 U.S.C. § 3626(b)(1)(A)(i), (e)(2).

After the Supreme Court affirmed the three-judge court

decision concerning the release orders in this case, the three-

judge court in early 2013 asked the State when it intended to

file a motion to terminate. The district court had appointed

experts to evaluate the prisons’ progress and had established

a schedule for reporting.

The State, anxious to end the entire litigation, responded

to the three-judge court in February 2013 that it hoped to be

able to file a motion to terminate the injunctive relief within

a few months. Plaintiffs indicated their need to file an

informed response to any such motion, so the district court

granted Plaintiffs’ motion to reopen discovery. The court

ordered the State to disclose its expert witnesses and their

reports at least 120 days before it filed a motion to terminate

relief. This would provide Plaintiffs and the court with the

ability to understand and evaluate the basis for the motion.

The State filed a notice of appeal seeking our court’s

review of that order. The State contends that the order

violates the PLRA by delaying its ability to move for

termination and thus delaying the automatic stay that would

follow after thirty days elapsed without a district court

6 PLATA V. BROWN

decision on the motion. See 18 U.S.C. § 3626(b)(1), (e)(2).

It is apparent from the record, however, that the order is a

scheduling order to coordinate the filing of a termination

motion with discovery disclosures. It was crafted to fit the

State’s own time line for seeking termination. While the

PLRA authorizes the filing of a termination motion after two

years, the State has not yet filed or attempted to file a motion

to terminate. It is the nature of the litigation, not the district

court’s order, that prevented the State from filing a motion

earlier.

It follows that the district court’s order does not affect the

availability of the automatic stay, since it would only be

triggered thirty days after the filing of the motion, and then

only if the district court failed to reach a decision within that

time period. The district court has violated no statutory time

limits.

The appropriateness of the order in this case becomes

apparent with an understanding of the background of the

PLRA and the historic complexity of this litigation. A time

line of this litigation is attached as Appendix A.

With respect to appellate jurisdiction, we conclude that

the order itself is not appealable, but the issues are

sufficiently significant to warrant review by mandamus. We

ultimately deny relief.

STATUTORY BACKGROUND

Congress enacted the PLRA in order to expedite prison

litigation and place control over prisons back into the hands

of state and local officials. See 141 Cong. Rec. S14418 (daily

ed. Sept. 27, 1995) (statement of Sen. Hatch); 141 Cong. Rec.

PLATA V. BROWN 7

S14317 (daily ed. Sept. 26, 1995) (statement of Sen.

Abraham). To address what Congress perceived as judicial

micro-management of the nation’s prisons, see Gilmore v.

California, 220 F.3d 987, 996–97 (9th Cir. 2000), the PLRA

established standards for the entry, enforcement, and

termination of remedial relief in prison litigation, Miller v.

French, 530 U.S. 327, 331 (2000).

Under the PLRA, a defendant in prison litigation may

move to terminate any prospective relief two years after the

date the court approved the relief. 18 U.S.C.

§ 3626(b)(1)(A)(i). The court must “promptly rule” on a

motion to terminate, and mandamus shall lie where the court

fails to do so. Id. § 3626(e)(1). In addition, a motion

pursuant to the PLRA to terminate prospective relief operates

as an automatic stay of the relief, beginning thirty days after

the motion is filed and ending on the date the court rules on

the motion. Id. § 3626(e)(2). The automatic stay may be

postponed for up to sixty days for good cause, which does not

include congestion of the court’s calendar. Id. § 3626(e)(3).

PROCEDURAL BACKGROUND

In 2001, Plaintiffs filed this class action lawsuit on behalf

of California prisoners alleging that defects in the prison

healthcare system violated the Eighth Amendment and the

Americans with Disabilities Act. Plata v. Schwarzenegger,

603 F.3d 1088, 1091 (9th Cir. 2010). Early in the litigation,

the parties entered into two consent decrees. The first, in

2002, required the State to implement various remedial

measures to ensure the provision of constitutionally adequate

healthcare in California prisons. Id. When little progress had

been made by 2004, the parties entered into an additional

consent decree designed to ensure the competency of medical

8 PLATA V. BROWN

staff and establish appropriate procedures for identifying and

treating high-risk patients. Id.

When no prison had successfully implemented these

remedial measures by 2005, the district court issued an order

to show cause as to why the State should not be held in

contempt and why the court should not appoint a receiver to

manage prison healthcare. Id. The court found that the State

had “repeatedly delayed [its] progress and ultimately failed to

achieve even a semblance of compliance” with the consent

decrees. In early 2006, the court appointed a receiver. Id. at

1092.

In 2007, the district court granted Plaintiffs’ motion to

convene a three-judge court to address whether a prisoner

release order was warranted. Brown v. Plata, 131 S. Ct. at

1922; see also 18 U.S.C. § 3626(a)(3) (PLRA provisions

governing prisoner release orders). The three-judge court

issued a prisoner release order after making the requisite

findings under the PLRA, and the Supreme Court affirmed

that order in 2011. Brown v. Plata, 131 S. Ct. at 1923.

In early 2012, the district court ordered the parties to meet

and confer regarding post-receivership planning. Several

months later, the district court entered an order setting forth

a receivership transition plan, which included a requirement

that court-appointed experts evaluate the state of medical care

at each prison.

On January 29, 2013, the three-judge court directed the

State to answer whether it intended to file a motion to

terminate prospective relief in Plata and, if so, when it

intended to file such a motion. Several weeks earlier, the

State had moved to terminate prospective relief in Coleman

PLATA V. BROWN 9

v. Brown, a related class action concerning mental healthcare

in California prisons. The State had not indicated whether it

would file a similar motion in Plata.

In its response filed February 12, 2013, the State

represented that it would move to terminate relief if the court-

appointed experts “fail to conduct an appropriate or timely

evaluation of the prison medical care system,” and that it

would be ready to do so “in a few months.” Concerned that

they would not have sufficient time to prepare a response to

the State’s motion before the PLRA’s automatic stay took

effect, Plaintiffs filed an emergency motion to reopen

discovery, and the court granted it.

The district court then entered the order on review here.

The court found that it would be “fundamentally unfair” to

allow the State an unlimited amount of time to prepare its

motion to terminate, while providing Plaintiffs only the

limited time allowed by the PLRA’s automatic stay provision

to prepare an adequate opposition. Citing the complexity of

the case, the need for detailed factual inquiry to determine

whether the case should be terminated, the restrictions of the

PLRA’s automatic stay provision, and the requirements of

Federal Rules of Civil Procedure 26(a)(2)(A)–(C), the court

ordered the State to disclose its supporting witnesses and

reports at least 120 days prior to filing a termination motion.

The State filed a notice of appeal from the district court’s

order, arguing that it impermissibly extended both the time

when defendants may move to terminate prospective relief

under the PLRA and the time at which the PLRA’s automatic

stay would take effect. Plaintiffs question whether this court

has jurisdiction to review the district court’s order.

10 PLATA V. BROWN

APPELLATE JURISDICTION

There is a threshold issue of jurisdiction, for Plaintiffs

point out that the district court’s order is interlocutory,

procedural in nature, and does not resolve any issue on the

merits. They correctly contend that we lack appellate

jurisdiction under 28 U.S.C. § 1291 dealing with appeals

from final judgments, or under the principal avenues for

appeal from interlocutory orders that decide the merits of

claims or issues. See Fed. R. Civ. P. 54(b); Cohen v.

Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).

The State offers four grounds for appellate jurisdiction,

none of which are sufficient. The State first argues that the

district court’s order is appealable as a post-judgment order.

We have held that an order entered after the underlying

dispute has been settled is appealable because it does not

implicate the concern with avoiding piecemeal appellate

review that underlies the final judgment rule. United States

v. State of Washington, 761 F.2d 1404, 1406 (9th Cir. 1985);

see also Armstrong v. Schwarzenegger, 622 F.3d 1058, 1064

(9th Cir. 2010); United States v. One 1986 Ford Pickup,

56 F.3d 1181, 1184–85 (9th Cir. 1995). Review of the order

here, however, does raise the problem of piecemeal review,

because this particular litigation has been in the post-

judgment, remedial phase since the entry of the first consent

decree in 2002. Such consent decrees operate as final

judgments. Jeff D. v. Kempthorne, 365 F.3d 844, 850 (9th

Cir. 2004) (“[C]onsent decrees are considered final judgments

. . . .”). The district court has since 2002 entered a number of

orders designed to facilitate the State’s compliance with the

consent decrees and help draw this case to a close. If this

order were immediately appealable as a post-judgment order,

then every scheduling order setting the framework for further

PLATA V. BROWN 11

proceedings in this case might also be immediately

appealable. We therefore agree with the observation of the

Seventh Circuit that each case management order

implementing a consent decree cannot readily be considered

a final post-judgment order for purposes of appeal. United

States v. Accra Pac, Inc., 173 F.3d 630, 632 (7th Cir. 1999).

The State also argues that the district court’s order is

appealable under the collateral order doctrine. This doctrine

provides that some rulings that do not end the litigation will

be deemed final because they are “too important to be denied

review” and too independent of the merits of the case to

require deferral of review. Cohen, 337 U.S. at 546; see also

Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009).

To warrant review under the collateral order doctrine, the

order must “(1) conclusively determine the disputed question,

(2) resolve an important issue completely separate from the

merits of the action, and (3) be effectively unreviewable on

appeal from a final judgment.” Will v. Hallock, 546 U.S. 345,

349 (2006) (citations omitted) (internal quotation marks

omitted).

Plaintiffs point out that because the order is essentially a

scheduling order, it does not conclusively determine or

resolve any issue. Moreover, the State’s argument regarding

the collateral order doctrine suffers from the same problem as

its argument with respect to post-judgment orders. The

collateral order doctrine is a “narrow exception” that “should

stay that way and never be allowed to swallow the general

rule that a party is entitled to a single appeal . . . .” Digital

Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868

(1994) (internal citation omitted); see also Mohawk Indus.,

Inc., 558 U.S. at 106. Applying the collateral order doctrine

here would open the door to piecemeal review of a large class

12 PLATA V. BROWN

of post-judgment case management orders designed to

facilitate the close of litigation. See Truckstop.net, LLC v.

Sprint Corp., 547 F.3d 1065, 1068 (9th Cir. 2008) (“[W]hen

a court identifies an order as an appealable, collateral one, it

determines the appealability of all such orders.” (citation

omitted)). The order, therefore, is not appealable under the

collateral order doctrine.

The State’s final arguments regarding jurisdiction arise

from the PLRA itself. The PLRA provides that “[a]ny order

staying, suspending, delaying, or barring the operation of the

automatic stay . . . shall be treated as an order refusing to

dissolve or modify an injunction and shall be appealable

pursuant to [28 U.S.C. §] 1292(a)(1) . . . .” 18 U.S.C.

§ 3626(e)(4). It also provides that the district court must

promptly rule on any motion to terminate prospective relief,

and that mandamus shall lie where the court fails to do so. Id.

§ 3626(e)(1). These PLRA provisions do not apply because

the district court has not failed to rule on any motion to

terminate. There has been none, so the district court’s order

does not delay the operation of an automatic stay that would

be triggered only after such a motion is filed.

Lack of jurisdiction over an appeal does not necessarily

foreclose review by this court if the issues raised are

significant enough to warrant review by mandamus. See, e.g.,

Perry v. Schwarzenegger, 591 F.3d 1147, 1157 (9th Cir.

2009) (holding that mandamus is appropriate to review a

discovery order that raises novel and important questions);

Medhekar v. United States District Court, 99 F.3d 325, 327

(9th Cir. 1996) (noting that mandamus is an especially

appropriate vehicle for review where the court is confronted

with an issue of first impression). We may construe an

appeal of an otherwise non-appealable order as a petition for

PLATA V. BROWN 13

writ of mandamus and consider the issues presented under the

factors set forth in Bauman v. United States District Court,

557 F.2d 650, 654–55 (9th Cir. 1977). Miller v. Gammie,

333 F.3d 889, 895 (9th Cir. 2003) (en banc); see also Special

Invs. Inc. v. Aero Air Inc., 360 F.3d 989, 993 (9th Cir. 2004);

Cordoza v. Pac. States Steel Corp., 320 F.3d 989, 998 (9th

Cir. 2003).

“Mandamus is an extraordinary remedy that may be

obtained only 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.” Miller, 335 F.3d at 895

(citation omitted) (internal quotation marks omitted). This

court reviews the district court’s order for clear error and

grants the writ only where the district court has usurped its

power or clearly abused its discretion. Id. (citation omitted).

Under the five factors set forth in Bauman, we consider:

(1) whether the petitioner has no other means,

such as direct appeal, to obtain the desired

relief; (2) whether the petitioner will be

damaged or prejudiced in any way not

correctable on appeal; (3) whether the district

court’s order is clearly erroneous as a matter

of law; (4) whether the district court’s order is

an oft-repeated error or manifests a persistent

disregard of the federal rules; and (5) whether

the district court’s order raises new and

important problems or issues of first

impression.

Perry, 591 F.3d at 1156 (citing Bauman, 557 F.2d at 654–55).

14 PLATA V. BROWN

Because the absence of the third factor—clear error by the

district court—is dispositive, Cordoza, 320 F.3d at 998; see

also Perry, 591 F.3d at 1156, we first address whether the

district court clearly erred in requiring the State to disclose its

experts and their reports 120 days prior to filing a motion to

terminate prospective relief. The State maintains the order

conflicts with the PLRA’s provisions authorizing a

termination motion after two years and that it interferes with

what the State seemingly views as a statutory right to a stay.

The court’s order was not entered in a vacuum, however, and

must be assessed in the context of the history of this

litigation.

THE DISTRICT COURT DID NOT CLEARLY ERR

IN ISSUING THE ORDER THAT REQUIRES

DISCLOSURE AND NOTICE

The district court’s order was entered after twelve years

of litigation and with an eye toward bringing it to a close.

The district court had appointed experts to evaluate the state

of medical care at the prisons, and the State had retained its

own experts. The district court’s order requires the State to

provide the court and Plaintiffs with copies of its experts’

reports at least 120 days before the State moves to terminate

relief.

The PLRA itself, of course, provides that a defendant may

move to terminate injunctive relief under a consent decree

when two years have elapsed since its imposition. 18 U.S.C.

§ 3626(b)(1)(A)(i). The cases interpreting the statute make

this clear. As the Seventh Circuit explained, “What

subsection (b)(1) does is identify a class of cases that are

eligible for termination: that is, cases in which a district court

must entertain motions to terminate prospective relief. If two

PLATA V. BROWN 15

years have elapsed since the decree was entered . . . then any

party is entitled to file a motion seeking termination.”

Berwanger v. Cottey, 178 F.3d 834, 838 (7th Cir. 1999); see

also Gilmore, 220 F.3d at 999 (“Thus, any prospective relief

becomes terminable, at the latest, two years after its

imposition.”); Cason v. Seckinger, 231 F.3d 777, 780 (11th

Cir. 2000) (“Section 3626(b)(1)(A) establishes specified time

frames under which prospective relief is terminable upon

motion of a party.”).

The State in this case did not file a motion to terminate

after two years. As a practical matter, the State in this

particular case could not have moved to terminate after two

years. At that point, medical care at the prisons had not come

close to constitutional standards. In 2005—more than two

years after the entry of the first consent decree—the district

court found that “the California prison medical care system

[was] broken beyond repair,” resulting in an “unconscionable

degree of suffering and death.” A motion to terminate would

likely have been futile.

The State has not indicated that it is ready to file a

termination motion now. It nevertheless contends that the

district court’s order violates the PLRA by requiring the State

to provide notice to the court and Plaintiffs before it files such

a motion.

The PLRA does not mandate the filing of motions to

terminate at any particular time. The district court in this

case took no action that prevented the State from filing a

motion. The State had never tried to file one and does not

represent it is in a position to file one now.

16 PLATA V. BROWN

The State apparently takes the view that the statute is

violated because, if the State wanted to file a motion

immediately, it would not be permitted to do so because of

the court’s order. The State’s own representations, however,

reflect that it is not ready to file a termination motion. In

response to the January 2013 order of the three-judge court

directing the State to answer whether it intended to file a

motion to terminate, the State indicated that it would be

prepared to bring such a motion “in a few months.”

The district court’s order was thus premised on the State’s

own representations as to when it might file a motion. The

order is therefore not based on an interpretation of the statute,

but upon the circumstances of this case. The State indicated

that it would need several months to prepare a motion to

terminate; the practical effect of the court’s order is to require

the State, while it is preparing its motion, to disclose the

experts’ reports upon which the motion will rely.

The district court’s order does not preclude a request for

modification of its terms; none has been made. The order is

intended to provide the court and parties adequate notice of

the evidence and the arguments supporting or opposing

termination.

Moreover, nothing in the text of the PLRA prevents the

district court from setting a schedule for expert disclosures.

The district court’s order is consistent with its broad authority

to manage complex litigation. See Fed. R. Civ. P. 16; United

States v. W.R. Grace, 526 F.3d 499, 509 (9th Cir. 2008)

(noting that the court may issue case management orders

designed to allow the parties to engage in appropriate

discovery and adequately prepare their arguments). It may be

for this reason the State’s argument is couched in terms of a

PLATA V. BROWN 17

violation of the PLRA, rather than an improper exercise of

the court’s case management authority. In any event, we

cannot fault the district court for wanting the parties to be

informed and prepared when the State seeks to terminate

relief.

Indeed, the Federal Rules of Civil Procedure require

pretrial notice of the expert witnesses and reports to be relied

upon. See Fed. R. Civ. P. 26(a)(2)(A)–(E). The dissent

prefers to characterize the order as an artificial notice

requirement imposed to create delay in this particular case,

but it actually is an order for expert disclosures pursuant to

the Federal Rules of Civil Procedure.

The relief ordered in this case is complex and has affected

thirty-three different institutions for nearly twelve years. See

Brown v. Plata, 131 S. Ct. at 1939 (noting the “long history

of failed remedial orders” in the case). Providing Plaintiffs

with notice that the State intends to file a motion to terminate

will allow both the State and Plaintiffs to have an adequate

record on which the district court may decide the merits of

the motion. With the benefit of informed briefing from both

parties, the district court will be able to make a timely ruling

on a motion to terminate, as the PLRA contemplates. See

18 U.S.C. § 3626(e)(1).

It appears that the State’s more practical concern is with

obtaining the automatic stay that the PLRA mandates if the

district court does not rule on the motion to terminate within

thirty days. See id. § 3626(e)(2). The legislative history of

the PLRA indicates that Congress was concerned about

district courts taking too much time to decide termination

motions and thus extending the life of decrees well beyond

the filing of defendants’ motions to terminate them. H.R.

18 PLATA V. BROWN

Rep. No. 104-21, at 26 (1995) (“By providing that the

prospective relief that is subject to the motion will be stayed

if the motion is not decided promptly, judges will be

motivated to decide the motions and avoid having the stay

automatically take effect.”); see also 143 Cong. Rec. S12269

(daily ed. Nov. 9, 1997) (statement of Sen. Abraham) (noting

that the purpose of the automatic stay provision is to

“discourage delay” in ruling on motions to terminate). The

automatic stay was thus not intended to reward the defendant

filing a termination motion, but to provide an incentive for

the district court to act promptly when such a motion is filed.

The State asserts that the court’s order violates the statute

by delaying the operation of the stay. Yet pursuant to the

statute, the stay is triggered only by the district court’s failing

to decide a termination motion within thirty days. If no

motion has been filed, there can have been no decisional

delay triggering the stay.

The words of the statute expressly limit the judge’s time

to decide a motion to terminate. 18 U.S.C. § 3626(e)(2).

They do not repeal the Rules of Civil Procedure that authorize

discovery and require disclosure. They do not endorse

sandbagging.

The district court’s order is consistent with the Supreme

Court’s decision in Miller v. French, 530 U.S. 327. There the

Court held that the PLRA prohibits district courts from

exercising their equitable authority to suspend the operation

of the automatic stay. Id. at 338. The order here does not

affect the operation of the automatic stay. Any possible stay

of relief is conditioned on two events that have not yet

occurred: the filing of a motion to terminate, and the district

court’s failure to rule on that motion within the time allowed.

PLATA V. BROWN 19

The State cannot file a motion to terminate until at least some

of the experts’ reports on the State’s compliance are in. The

district court’s order does nothing more than coordinate the

filing of a termination motion with the discovery each side

wanted. It embodies the fundamental principle the Supreme

Court laid down more than 60 years ago: “Mutual knowledge

of all the relevant facts gathered by both parties is essential to

proper litigation.” Hickman v. Taylor, 329 U.S. 495, 507

(1947).

The order thus also furthers the purpose of the automatic

stay provision by ensuring that the district court has the

information it needs to rule quickly on a motion to terminate.

On the basis of the record before this court, there is no reason

to hold the district court’s order has prejudiced the State in

any way.

CONCLUSION

The district court’s order is a sensible scheduling order

designed to provide the court and Plaintiffs with adequate

notice of the evidence the State intends to rely upon in a

motion to terminate. The order establishes a schedule for

expert disclosures that is consistent with the State’s own time

line, and it does not affect the operation of the automatic stay.

There was no clear error in the district court’s issuance of the

order.

Because we uphold the district court’s order as consistent

with the provisions of the statute, we need not reach

Plaintiffs’ claim that without the notice provisions of the

order, the automatic stay provision violates due process.

20 PLATA V. BROWN

The State’s appeal is construed as a Petition for Writ of

Mandamus. So construed, the petition is DENIED.

PLATA V. BROWN 21

APPENDIX A

DATE EVENT

April 5, 2001 Plaintiffs file their Complaint.

June 13, 2002 District court approves the parties’

stipulation and order for injunctive

relief.

September 17, 2004 District court approves the parties’

stipulation and order regarding the

quality of patient care and staffing.

May 10, 2005 District court orders the State to show

cause why it should not be held in

contempt for failing to comply with

prior orders and why the court should

not appoint a receiver to manage the

prison health care system.

October 3, 2005 District court issues its findings of fact

and conclusions of law regarding the

order to show cause. District court

states that it will hold the contempt

citation in abeyance and establish a

receivership to remedy constitutional

violations.

22 PLATA V. BROWN

February 14, 2006 District court appoints a receiver and

suspends the authority of the Secretary

of the California Department of

Corrections and Rehabilitation.

November 13, 2006 Plaintiffs move to convene a three-

judge court to address whether

prison overcrowding violates their

constitutional rights.

July 23, 2007 District court grants Plaintiffs’ motion

to convene a three-judge court.

July 26, 2007 Ninth Circuit designates a three-judge

court.

January 28, 2009 State moves to replace the receiver

with a special master and to terminate

the receiver’s plan regarding

construction of additional prisons.

March 24, 2009 District Court denies the State’s

motion to replace the receiver with a

special master and to terminate the

receiver’s plan regarding construction

of additional prisons.

August 4, 2009 Three-judge court orders reduction of

the prison population.

April 30, 2010 Ninth Circuit affirms the district

court’s denial of the State’s motion to

replace the receiver with a special

master and to terminate the receiver’s

PLATA V. BROWN 23

plan regarding construction of

additional prisons.

May 23, 2011 Supreme Court affirms the order of

the three-judge court requiring

reduction of the prison population.

September 5, 2012 District court issues an order setting

forth a plan to transition from the

receiver to a special master and to

begin expert evaluations of

California’s prisons.

January 29, 2013 Three-judge court directs the State to

answer whether it intends to file a

termination motion.

February 12, 2013 State represents in its response and

objections to the January 29, 2013

order of the three-judge court that if

court-appointed experts “fail to

conduct an appropriate or timely

evaluation of the prison medical care

system,” the state will file a

termination motion “in a few months.”

February 14, 2013 Plaintiffs move to reopen discovery.

February 19, 2013 District court grants Plaintiffs’ motion

to reopen discovery.

February 21, 2013 District court orders a schedule for

expert disclosures should the state opt

to file a termination motion.

24 PLATA V. BROWN

March 11, 2013 State appeals the district court’s

February 21, 2013 order.

BYBEE, Circuit Judge, dissenting:

This case arises out of serious constitutional violations

throughout California’s prison system. Brown v. Plata, 131

S. Ct. 1910 (2011). The complexity of the case

notwithstanding, the sole issue before our panel is nominally

procedural. The Prison Litigation Reform Act (“PLRA”)

provides that “[t]he court shall promptly rule on any motion

to modify or terminate prospective relief in a civil action with

respect to prison conditions.” 18 U.S.C. § 3626(e)(1). If the

district court has not “promptly rule[d]”before the 30th day

after the filing of such a motion, the district court’s injunction

is automatically stayed. Id. § 3626(e)(2). For good cause, the

district court may postpone the effective day of the automatic

stay, up to 60 days. Id. § 3626(e)(3). The question presented

here is: May the district court avoid the statute’s strict

timetable by requiring the State to give 120 days’ notice

before it files a motion to terminate? To ask the question is to

answer it. The answer is plainly “no.”

I respectfully dissent.

I

“[O]ne of the purposes of the [PLRA] was to restrict

severely the intrusion of the judiciary into the operation of

prisons.” Plata v. Schwarzenegger, 603 F.3d 1088, 1095 (9th

Cir. 2010). For this reason, the PLRA provides that

prospective relief “shall extend no further than necessary to

PLATA V. BROWN 25

correct the violation of the Federal right of a particular

plaintiff or plaintiffs.” 18 U.S.C. § 3626(a)(1)(A).

Accordingly, a district court may not grant prospective relief

with respect to prison conditions “unless the court finds that

such relief is narrowly drawn, extends no further than

necessary to correct the violation of the Federal right, and is

the least intrusive means necessary to correct the violation of

the Federal right.” Id.; see also id. § 3626(b)(2).

In addition, the PLRA provides standards and timetables

by which prospective relief may be terminated. There are two

relevant provisions here. First, § 3626(b)(1) sets dates by

which prospective relief becomes terminable:

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

[PLRA], 2 years after such date of

enactment.

Id. (emphasis added). As the verb “shall” indicates, this

statutory timetable is mandatory. See Alabama v. Bozeman,

533 U.S. 146, 153 (2001) (“The word ‘shall’ is ordinarily the

26 PLATA V. BROWN

language of command.” (internal quotation marks and citation

omitted)); Our Children’s Earth Found. v. EPA, 527 F.3d

842, 847 (9th Cir. 2008) (“When Congress specifies an

obligation and uses the word ‘shall,’ this denomination

usually connotes a mandatory command.”). “Thus, any

prospective relief becomes terminable, at the latest, two years

after its imposition.” Gilmore v. California, 220 F.3d 987,

999 (9th Cir. 2000).

Second, the PLRA accelerates rulings on motions for

termination. Specifically, the PLRA provides that district

courts “shall promptly rule” on such motions and authorizes

mandamus relief for failure to do so. 18 U.S.C. § 3626(e)(1).

What is more, injunctive relief is automatically stayed 30

days after the filing of a motion to terminate, subject only to

a 60-day postponement for “good cause.” Id. § 3626(e)(2),

(3). This automatic stay provision acts as an enforcement

mechanism on district courts to ensure prompt rulings on

motions for termination.1 Finally, the PLRA contains an

immediate appeal provision. Section 3626(e)(4) states that

“[a]ny order staying, suspending, delaying, or barring the

operation of the automatic stay” imposed by § 3626(e)(2)

“shall be appealable” pursuant to 28 U.S.C. § 1292(a)(1).

II

1

The automatic stay does not permanently dissolve the injunction.

Instead, it stays the injunction “during a fixed period of time, i.e., from 30

(or 90) days after the motion is filed until the court enters a final order

ruling on the motion.” Miller v. French, 530 U.S. 327, 337 (2000). As

soon as the district court makes written findings based on the record that

prospective relief remains necessary, extends no further than necessary,

and is narrowly drawn, the automatic stay is lifted. 18 U.S.C.

§ 3626(b)(3).

PLATA V. BROWN 27

On February 12, 2013, the State represented to the district

court that it was considering filing a motion to terminate. In

response, plaintiffs requested that discovery be reopened to

allow them to investigate current conditions in California’s

prison system in anticipation of the State’s motion to

terminate prospective relief. The district court granted

plaintiffs’ request and ordered the State to disclose its expert

witnesses and their reports at least 120 days before it filed a

motion to terminate. In the district court’s view, it would be

fundamentally unfair to give the State unlimited time to

prepare its motion to terminate while allowing plaintiffs only

the time allowed by the PLRA’s automatic stay to prepare

their opposition in such a complex case. The State promptly

sought relief from this court.

The district court’s order violates the plain and

unambiguous command of the PLRA that all prospective

relief orders “become[] terminable, at the latest, two years

after [their] imposition.” Gilmore, 220 F.3d at 999; see also

Berwanger v. Cottey, 178 F.3d 834, 838 (7th Cir. 1999)

(“What subsection (b)(1) does is identify a class of cases that

are eligible for termination: that is, cases in which a district

court must entertain motions to terminate prospective

relief.”). Congress did not carve out any exceptions to this

mandate, not even for complex cases involving large prison

systems. The State therefore had the right to move for

termination at any point 2 years after relief was entered.

18 U.S.C. § 3626(b)(1)(i). More than a decade after relief was

first entered, however, the district court stripped the State of

its right to move for termination and, contrary to the express

provisions of the statute, imposed an additional 120-day

waiting period in the name of fairness.

28 PLATA V. BROWN

Furthermore, the district court’s concerns regarding the

expedited timetable for the termination of prospective relief

cannot justify a departure from the statute’s clear mandate.

The PLRA imposes an automatic stay on injunctive relief 30

days after the filing of a motion to terminate to ensure that

district courts rule promptly on such motions. 18 U.S.C.

§ 3626(e)(2). For good cause, however, the district court may

postpone the effective date of the automatic stay for up to an

additional 60 days. Id. § 3626(e)(3). Good cause presumably

exists in unusually complex cases like this one. Accordingly,

there is no reason to go beyond the statute in search of

fairness. Congress has already weighed the competing

interests and has struck what it believes to be the appropriate

balance.

The purpose and effect of the district court’s order is to

delay the operation of the automatic stay. See Id.

§ 3626(e)(2), (3), (4). As the Supreme Court has explained,

however, “[v]iewing the automatic stay provision in the

context of § 3626 as a whole [ ] confirms that Congress

intended to prohibit federal courts from exercising their

equitable authority to suspend operation of the automatic

stay.” Miller, 530 U.S. at 338. Thus, the order is flatly

inconsistent with the PLRA, both text and spirit.

III

The majority rationalizes the district court’s order by

arguing that it is “consistent with [the district court’s] broad

authority to manage complex litigation.” Maj. Op. at 16. In

fact, the majority says, the order is based not “on an

interpretation of the statute, but [rather on] the circumstances

of this case.” Maj. Op. at 16.

PLATA V. BROWN 29

The Supreme Court addressed this argument in Miller v.

French. There, two circuits had ruled that federal courts, “in

the exercise of their traditional equitable authority, [could]

enjoin operation of the PLRA’s automatic stay provision.”

530 U.S. at 336. The Court rejected these rulings:

To allow courts to exercise their equitable

discretion to prevent the stay from

“operating” during this statutorily prescribed

period would be to contradict § 3626(e)(2)’s

plain terms. It would mean that the motion to

terminate merely may operate as a stay,

despite the statute’s command that it “shall”

have such effect. . . .

Viewing the automatic stay provision in

the context of § 3626 as a whole [ ] confirms

that Congress intended to prohibit federal

courts from exercising their equitable

authority to suspend operation of the

automatic stay.

Id. at 338. Significantly, the Court observed that “curbing the

equitable discretion of district courts was one of the PLRA’s

principal objectives.” Id. at 339. Where a statutory scheme

makes it clear that a court “has no authority to create

equitable exceptions to jurisdictional requirements,” the “use

of the ‘unique circumstances’ doctrine is illegitimate.”

Bowles v. Russell, 551 U.S. 205, 214 (2007).

Next, the majority asserts that “nothing in the text of the

PLRA prevents the district court from setting a schedule for

expert disclosures.” Maj. Op. at 16. I agree that the PLRA

does not expressly forbid district courts from setting

30 PLATA V. BROWN

discovery schedules, but the point is irrelevant. By

compelling district courts to adhere to a strict timetable, the

PLRA forbids them from adopting a rule or procedure or

schedule inconsistent with its statutory mandate.2 We expect

district courts to exercise their authority and judgment to

manage complex litigation, but they must do so within the

PLRA’s parameters.3 Just because district courts have broad

discretion to manage cases does not mean that they may

exercise that discretion in derogation of the United States

Code or the Federal Rules of Civil Procedure. Indeed, the

essence of an abuse of discretion is for the district court to

exercise its discretion in the face of a contrary rule of law.

See Koon v. United States, 518 U.S. 81, 100 (1996) (“A

district court by definition abuses its discretion when it makes

an error of law.”); Abdullah v. U.S. Sec. Assocs., Inc., 731

F.3d 952, 956 (9th Cir. 2013) (“[A]n error of law is a per se

abuse of discrection.”).

In addition, the majority emphasizes that the State did not

file a motion to terminate 2 years after relief was entered, that

a motion filed at that time likely would have been futile, and

2

The majority also states that the Federal Rules of Civil Procedure

require pretrial disclosure of expert witnesses and reports. Maj. Op. at 17.

I agree with that statement but fail to see its significance in this case. Yes,

Federal Rule of Civil Procedure 26(a)(2) requires expert disclosures, but

it does not mandate their timing here. There is no conflict between Rule

26(a)(2) and the PLRA. Rule 26(a)(2) cannot possibly justify the district

court’s variance from the PLRA’s mandatory timetable.

3

In this case, for example, the district court was free to set a schedule

for expert disclosures during the 2-year period after the consent decree

was entered. Now that the 2-year period has passed, however, the PLRA

prevents the district court from setting a schedule for expert disclosures if

that schedule prevents the State from filing its motion at the time of its

choosing. 18 U.S.C. § 3626(b)(1).

PLATA V. BROWN 31

that the State is not ready to file its motion even now. Maj.

Op. at 15. This line of reasoning loses sight of the issue

before us. We are not reviewing the timing or merit of the

State’s motion at this juncture; we are reviewing the district

court’s order that the State give 120 days’ notice before it

files any motion to terminate. In my view, the likely futility

of filing a motion years ago and the readiness of the State to

file today are irrelevant to the question of whether the district

court’s order violated the PLRA. And on that issue, the

analysis is clear: the PLRA does not allow district courts to

extend the mandatory timetable for the filing of motions to

terminate prospective relief, as did the district court’s order

here.

Finally, the majority contends that the State has not

triggered the automatic stay provision’s 30-day clock because

it has not yet filed a motion to terminate prospective relief.

Maj Op. at 18. That is correct as far as it goes, but blaming

the State for failing to trigger the 30-day clock ignores the

fact that the district court has intervened to delay the

triggering event itself. The federal courts cannot circumvent

congressional intent so easily. Thus, although I agree with the

majority that the 30-day clock is not yet ticking, I nonetheless

would conclude that the district court’s order delays the

operation of the automatic stay.4 Were it not so, a district

4

Accordingly, unlike the majority, I would review this appeal under

18 U.S.C. § 3626(e)(4) (“Any order . . . delaying . . . the operation of the

automatic stay . . . 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.”), rather than as an exercise of our mandamus jurisdiction under

the All Writs Statute, 28 U.S.C. § 1651. Maj. Op. at 12–14; see 18 U.S.C.

§ 3626(e)(1) (authorizing an action in mandamus).

32 PLATA V. BROWN

court could simply prohibit all motions to terminate and

evade the operation of the automatic stay entirely.5

IV

As courts of law, we are frequently called upon to enforce

timetables prescribed by statute or rule. Sometimes these are

jurisdictional. See, e.g., Bowles, 551 U.S. at 208–15

(enforcing 28 U.S.C. § 2107’s deadline for filing an appeal

even though the petitioner had filed his notice within the

extended period granted by the district court). Sometimes

they are not. See, e.g., United States v. Luk, 859 F.2d 667, 669

n.2 (9th Cir. 1988) (denying as untimely a motion for limited

remand). We do not hesitate, notwithstanding our concerns

with separation of powers or federalism, to enforce statutory

deadlines against the executive branch or against state

entities. See, e.g., Citizens for Responsibility & Ethics in

Wash. v. FEC, 711 F.3d 180, 190 (D.C. Cir. 2013) (enforcing

against the FEC a 20-day deadline for making and

communicating a “determination” in response to a FOIA

request); Withrow v. Concannon, 942 F.2d 1385, 1387 (9th

Cir. 1991) (holding that state agency must strictly comply

with federal regulations requiring administrative action

within 90 days from the date a hearing is requested).

And, although less common, Congress sometimes has

imposed strict deadlines on us as well. See, e.g., 28 U.S.C.

§ 1453(c)(2), (3) (requiring the courts of appeals to “complete

5

Plaintiffs argue that the district court’s order is necessary to protect

their due process right to an opportunity to fully and adequately prepare

a response to the State’s motion to terminate. The majority has not

addressed the issue. It seems like a stretch. See Gilmore, 220 F.3d at 1008

(“No circuit court has found the PLRA to violate due process.”).

PLATA V. BROWN 33

all action on [review of a remand order under CAFA],

including rendering judgment, not later than 60 days after the

date on which such appeal was filed” unless “all parties to the

proceeding agree to such extension, for any period of time”

or “such extension is for good cause shown and in the

interests of justice, for a period not to exceed 10 days”). We

don’t like it, but we have nevertheless self-enforced such

deadlines, even when we have been tempted to extend the

deadline because of “circumstances.” See Lewis v. Verizon

Commc’ns, Inc., 627 F.3d 395, 398 (9th Cir. 2010) (“[A]n

appeal must be decided within 60 days after it is filed.

28 U.S.C. § 1453(c)(2). Hence, we are required to decide this

appeal no later than November 22, 2010, 60 days after the

petition for appeal was granted.”); Lowdermilk v. U.S. Bank

Nat’l Ass’n, 479 F.3d 994, 996–97 (9th Cir. 2007) (granting

ourselves the 10-day extension for “good cause,” but noting

that one of the parties refused to grant the court any further

extension), overruled on other grounds by Standard Fire Ins.

Co. v. Knowles, 133 S. Ct. 1345, 1350 (2013).

Sometimes we have exercised our discretion to extend

statutory or regulatory deadlines when we have felt that

tolling or some other equitable principle has demanded it.

See, e.g., Wong v. Beebe, 732 F.3d 1030, 1033 (9th Cir. 2013)

(en banc) (holding that equitable tolling of the statute of

limitations is available in FTCA actions); Avagyan v. Holder,

646 F.3d 672, 679 (9th Cir. 2011) (finding that petitioner may

obtain equitable tolling during periods when he is prevented

from filing a motion to reopen removal proceedings “because

of a deception, fraud, or error, as long as petitioner acts with

due diligence” (internal quotation marks and citation

omitted)); Bills v. Clark, 628 F.3d 1092, 1099–1100 (9th Cir.

2010) (articulating a two-part test to determine whether a

mental impairment amounts to an “extraordinary

34 PLATA V. BROWN

circumstance” warranting equitable tolling under AEDPA).

But there is no room in this statute for an equitable argument.

Congress has made it plain that the State may file its motion

to terminate after 2 years, that the district court “shall

promptly rule” on the State’s motion, and that the State’s

motion “shall operate” as an automatic stay after 30 days

until the district court enters its final order ruling on the

motion. 18 U.S.C. § 3626(e)(1). Congress’s decision to

impose such strict deadlines may well affect the substantive

arguments that counsel will be able to make in defense of the

injunction, but that is a consequence of Congress’s choices

and is not avoidable by the exercise of our discretion.

V

Absent statutory interference, district courts have broad

discretion in managing their cases. But here, the PLRA

decrees that all prospective relief orders become terminable,

at the latest, 2 years after their imposition. Not 2 years and 1

day, and certainly not 2 years and 120 days, as required by

the district court’s order and upheld by the majority today. I

respectfully dissent.