Amicus Curiae Brief — Miller v. French

Court, U.s.

Feb 3 Qovo BILED

3) RB 3 ar

No. 99-224 Oreo me cic |

Inu the

Suprenwe Court of the United States

CHARLES B. MILLER, SUPERINTENDENT OF THE

PENDLETON CORRECTIONAL FACILITY, ef al.,

Petitioners,

v.

RICHARD A. FRENCH, ef al.

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

AMICUS CURIAE BRIEF OF TEXAS, ALABAMA, ALASKA, ARKANSAS,

CALIFORNIA, DELAWARE, DISTRICT OF COLUMBIA, FLORIDA, ILLINOIS,

KANSAS, MARYLAND, MICHIGAN, MISSISSIPPI, MISSOURI, MONTANA,

NEBRASKA, NEVADA, NEW HAMPSHIRE, NEW JERSEY, OHIO,

OKLAHOMA, PENNSYLVANIA, SOUTH CAROLINA, SOUTH DAKOTA,

TENNESSEE, UTAH, WASHINGTON, AND WYOMING

IN SUPPORT OF PETITIONERS

JOHN CORNYN CHARLES K. ELDRED

Attorney General of Texas Assistant Attorney General

ANDY TAYLOR

First Assistant Atty General P.O. Box 12548

SHANE PHELPS Austin, Texas 78711-2548

Deputy Attorney General [Tel.] (512) 936-1700

GREGORY S. COLEMAN* [Fax] (512) 474-2697

Solicitor General

* Counsel of Record

ADDITIONAL COUNSEL

BILL PRYOR

Attorney General of

Alabama

BRUCE M. BOTELHO

Attorney General of Alaska

ROBERT A. RUSSELL, JR.

Attorney General of

Arkansas

BILL LOCKYER

Attorney General of

California

M. JANE BRADY

Attorney General of

Delaware

ROBERT RIGSBY

Acting Corporation

Counsel, District of

Columbia

ROBERT A. BUTTERWORTH —

Attorney General of Florida

JAMES E. RYAN

Attorney General of Illinois

CARLA J. STOVALL

Attorney General of Kansas

J. JOSEPH CURRAN, JR.

Attorney General of

Maryland

JENNIFER M. GRANHOLM

Attorney General of

Michigan

MIKE MOORE

Attorney General of

Mississippi

JEREMIAH W. (JAY) NIXON

Attorney General of

Missouri

JOSEPH P. MAZUREK

Attorney General of

Montana

DON STENBERG

Attorney General of

Nebraska

FRANKIE SUE DEL PAPA

Attorney General of Nevada

PHILIP T. MCLAUGHLIN

Attorney General of New

Hampshire

JOHN J. FARMER, JR.

Attorney General of New

Jersey

BETTY D. MONTGOMERY

Attorney General of Ohio

W.A. DREW EDMONDSON

Attorney General of

Oklahoma

D. MICHAEL FISHER

Attorney General of

Pennsylvania

CHARLIE CONDON

Attorney General of South

Carolina

MARK BARNETT

Attorney General of South

Dakota

PAUL G. SUMMERS

Attorney General and

Reporter of Tennessee

JAN GRAHAM

Attorney General of Utah

CHRISTINE O. GREGOIRE

Attorney General of

Washington

GAY WOODHOUSE

Attorney General of

Wyoming

TABLE OF CONTENTS

ENS Oe iii

es cence wnling de eebnce see digccess iv

eee hee swauccscenness l

Summary of the Argument ...................0005- l

CPC CU SUR bedebeddeecccccecececececs 3

1. District Courts Do Not Have Inherent Equitable

- Powers to Stay a Congressionally Imposed Automatic

Stay of Prospective Relief. ..... 2.0.2... ccc ceees 7

Il. The Automatic Stay Provision Does Not Violate

separation Of Powers. .... 2... 6. ccc cece cece: 14

eis tees se ha wn cdbeccceceessecsucs 23

iV

TABLE OF AUTHORITIES

CASES:

Benjamin v. Jacobson, 172 F.3d 144 (74 Cir. (en banc),

cert. denied sub nom. Benjamin v. Kerik, 120 S. Ct.

i ee er oa ee re 15

Board of Educ. v. Dowell, 498 U.S. 237 (1991) ........ 3

Brown v. Swann, 35 U.S. (10 Pet.) 497 (1836) ......... 8

Cagle v. Hutto, 177 F.3d 253 (CA4 1999) ........... 15

Califano v. Yamasaki, 442 U.S. 682 (1979) ........... 8

Chambers v. NASCO, Inc., 501 U.S. 32 (1991) ........ 7

Cinerama, Inc. v. Sweet Music, S.A., 482 F.2d 66 (CA2

DEUS oc ckncedicushbecercentnaee¥acddanaree 19

Crowell v. Benson, 285 U.S. 22 (1932)... ........... 1]

Dougan v. Singletary, 129 F.3d 1424 (CA11 1997), cert.

Goeied, 106 S. Ca, ZS7e COE 6 cdccccccceccoses 16

Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430 (1992) .. 3

French v. Duckworth, 178 F.3d 437 (CA7

oo Pre passim

Gavin v. Branstad, 122 F.3d 1081 (CA8 1997), cert.

denied, 118 S. Ct. 2374 (1998) ............... 3, 16

Hadix v. Johnson, 133 F.3d 940 (CA6), cert. denied sub

nom. Hadix v. McGinnis, 118 S. Ct. 2368

en er ee ae ore ee 13, 16

Hadix v. Johnson, 144 F.3d 925 (CA6 1998) .... 9, 10, 12

Hadix v. Johnson, 933 F Supp. 1360 (E.D. Mich. 1996) 12

Hadix v. Johnson, 933 F Supp. 1362 (W.D. Mich. 1996) 12

Hebert v. Exxon Corp., 953 F.2d 936, 938 (CAS 1992) . 19

Imprisoned Citizens Union v. Ridge, 169 F.3d 178 (CA3

DOSED 0 ck cecivicwand¥e &heennduebuneaean 15-16

Vv

Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649

Ss CE tntbe debuks kuetan ation 4%n Cease 16

In re Guthrie, 733 F.2d 634 (CA4 1984) ............ 19

Kalb v. Feuerstein, 308 U.S. 433 (1940) ............ 19

Lauf v. Shinner, 303 U.S. 323 (1938) ................ 7

Lewis v. Casey, 518 U.S. 343 (1996) .............. 5.6

Lowe v. SEC, 472 U.S. 181 (1985) ................. 11

Milliken v. Bradley, 433 U.S. 267 (1977) ............ 15

New York v. United States, 505 U.S. 144 (1992) ....... 4

Nichols v. Hopper, 173 F.3d 820 (CA11 1999) ....... 15

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. |

SEE Sédccudddnse obbunndeudedusaneddencens 10

Pennsylvania v. Wheeling and Belmont Bridge Co., 59

Ses CED SENSES CUGEED 6 cece ccvcecccccccccs 17

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211

DEE ocd nvicenunes chanbeesentacdédneséses 17

Plyler v. Moore, 100 F.3d 365 (CA4 1996) ..... 4, 14, 16

Porter v. Warner Holding Co., 328 U.S. 395 (1946) .... 8

Preiser v. Rodriguez, 411 U.S. 475

Dt cthoadet kd kins ceeds bed busine tek 5

Procunier v. Martinez, 416 U.S. 396 (1974), overruled on

other grounds, Thornburgh v. Abbott, 490 U.S. 401

DE Suduh ctiétducst doused cbteetéaneone 1,3

Robertson v. Seattle Audubon Society, 503 U.S. 429

a a eS ee 17

Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367

SE bith dvhanekh kein 6 Whe kresnwenk s «os 15

Ruiz v. Johnson, 178 F.3d 385 (CAS 1999) ........ 9-10

Stefanelli v. Minard, 342 U.S.117 (1951) ............ 8

Taylor v. United States, 143 F.3d 1178 (CA9), reh'g

granted and opinion withdrawn, 158 F.3d 1059(CA9

vi

1999) (en banc), on reh'g, 181 F.3d 1017 (CA9

BOPP) Cem OGRE) ow cc cccccccccccccccepeccccccs 16

Toucey v. New York Life Ins. Co., 314 U.S. 118

SEGUE o cccctocceweshoseeteduvesdedesesedtes 7

United States v. Bramer, 691 F.2d 691 (CA4 1982) .... 20

United States v. Klein, 80 U.S. (13 Wall.) 128

GREED vccvcecesdnccdserudsasencsese snes 16, 17

United States v. Lopez, 514 U.S. 549 (1995) .......... 4

Yu Cong Eng'g v. Trinidad, 271 U.S. 500 (1927) ..... 1]

STATUTES: .

SR GE ED ib oc cwcvecsatsccccudestevsesceces 18

Ll eh re rrrerrr rrr rrr Ty 20

BULB. BORED ccccccccccccccccvesccesvcss 20

SO UL ED cecccncccvccccccecsscecses passim

SR ULB. GD ks ccccccvccdcsccncccvecsas passim

BUBL. SEATED oc cccccccecccescecesccesces 12

PGB. BH cc cvccvccccsccvveescsevcccess 20

y Lf | Lh EOP TTTOTTTTT TILT Tt 19

28 U.S.C. §2244(b)(3)(D) .. 2.6... ee eee ee ee ee 20

Judiciary Act of 1793, §5, 1 Stat. 335 ................ 7

RULES:

— Fhe 8S Sirti eee 19

PUR BG. Fe Gee v.veccesocccccccsecesvss 7, 19-20

OTHER AUTHORITIES:

141 CONG. REC. H14,106 (daily ed. Dec. 6, 1995) ...... 4

141 CONG. REC. $14, 418 (daily ed. Sept. 27, 1995) .... 4

143 CONG. REC. $12,268 (daily ed. Nov. 9, 1997) ...... 4

143 CONG. REC. $12,269 (daily ed. Nov. 9,

FEUD vccccccvccccneatecouaunetie maebe 6, 13,17

Vii

DOUGLAS LAYCOCK, MODERN AMERICAN REMEDIES 307

PC data deweie Sb SoU) bod ol se 22

H.R. REP. No. 21, 104th Cong., Ist Sess.

EE 6 oe bh ed dvdiddbdebebasweudes bivesa. 4.6

John Choon Yoo, Who Measures the Chancellor's Foot?

The Inherent Remedial Authority of Federal Courts.

84 CALIF. L. REV. 1121 (1996)

Prison Reform: Enhancing the Effectiveness of

Incarceration: Hearings on S. 3, S. 38, S. 400, S. 866,

S. 930, and H.R. 667 Before the Committee on the

Judiciary, 104th Cong., Ist Sess. 2 (1996) ........ 3

INTEREST OF AMICI CURIAE

Amici curiae Texas, et al., urge the Court to reverse the

judgment of the Seventh Circuit. The Court has long

recognized that the problems facing prisons and jails “are

complex and intractable” and “require expertise.

comprehensive planning, and the commitment of resources,

all of which are peculiarly within the province of” state

corrections professionals.’ The states have a strong interest in

retaining—or in many cases, regaining—control over their

own penal institutions in the absence of a clear constitutional

violation.

SUMMARY OF THE ARGUMENT

Congress passed the Prison Litigation Reform Act in

response to its perception that some federal district courts had

too long been overseeing state and local penal institutions

without clear evidence that federal control was necessary to

remedy ongoing constitutional violations. Even when the

original intrusion was justified by evidence of constitutional

violations, the remedial orders sometimes remained in place

more than two decades later—partly because the states and

their prison systems were hesitant to move for

termination—and long after the conditions that precipitated

the case ceased to exist. The PLRA reflects Congress’s

“growing frustration with the courts’ inability to control their

1. Procunier v. Martinez, 416 U.S. 396, 405 (1974), overruled

on other grounds, Thornburgh v. Abbott, 490 U.S. 401 (1989).

2

own remedial discretion in a principled manner.” It attempts

to balance federal judicial encroachments with the principles

of federalism by setting substantive requirements for new and

continued federal judicial relief against state prisons and jails.

The PLRA encourages state and local governments (and a

variety of prospective intervenors) to move to terminate any

existing relief that does not meet the substantive standards of

the PLRA. If a court fails to rule on a motion to terminate

within 30 (or, with good cause, 90) days, all pending

prospective relief is automatically stayed until the court rules

on the motion.

Congress believed that some courts could delay

implementation of the substantive requirements of the PLRA,

and Congress enacted the automatic stay provision to

encourage courts to rule quickly on termination motions. The

language of the PLRA was not intended to and does not leave

courts equitable authority to “stay the stay.” Congress has the

power to modify courts’ inherent equitable authority, and the

language of the statute cannot reasonably be construed to

permit district courts to disregard the stay.

Nor does the automatic stay violate separation of powers.

It is a valid congressional enactment that properly limits the

equitable powers of federal courts, and the Seventh Circuit

erred in ruling to the contrary.

2. John Choon Yoo, Who Measures the Chancellor's Foot? The

Inherent Remedial Authority of Federal Courts, 84 CALIF. L. REV. 1121,

1175 (1996).

3

ARGUMENT

When Congress passed the PLRA in 1996, it intended the

new statute, 18 U.S.C. §3626, to govern prison-conditions

litigation. The PLRA reflects “Congress’ desire to get the

federal courts out of the business of administering prisons,

except where court action is necessary to remedy actual

violations of prisoners’ constitutional rights,” Gavin v.

Branstad, 122 F.3d 1081, 1090 (CA8 1997), and echoes the

Supreme Court’s admonition that institutional consent decrees

“are not intended to operate in perpetuity.” Board of Educ.

v. Dowell, 498 U.S. 237, 248 (1991). When a state has

remedied the constitutional violations that the court order

identifies, the district court has a categorical obligation to

return control of the institution to the state officials

responsible for its operation. Freeman v. Pitts, 503 U.S. 467,

491 (1992); see Dowell, 498 U.S. at 248. “Courts are ill

equipped to deal with the increasingly urgent problems of

prison administration and reform.” Procunier, 416 U.S. at

405. The legislative history of the PLRA forcefully

demonstrates that Congress was seriously concerned about

perceived abuses stemming from continued federal court

control of state prisons.’

3. See Prison Reform: Enhancing the Effectiveness of

Incarceration: Hearings on S. 3, S. 38, S. 400, S. 866, S. 930, and H.R.

667 Before the Committee on the Judiciary, \04th Cong., Ist Sess. 2

(1996) (statement of Sen. Hatch) (“Our prison system today is plagued

by several interrelated problems—the inappropriate utilization by Federal

courts of population caps and intrusive micromanagement on State and

local prisons .. . .”); id. at 11 (statement of Sen. Hutchison) (“My

purpose in appearing today is to impress on the committee the

seriousness of the problem of Federal court takeovers and to describe the

4

Congress enacted the PLRA to protect the states’ Tenth

Amendment and Guarantee Clause sovereignty. See 143

CONG. REC. $12,268 (daily ed. Nov. 9, 1997) (statement of

Sen. Abraham) (“The Prison Litigation Reform Act was

specifically designed to protect the Tenth Amendment powers

of the sovereign states, to enforce the Guarantee Clause, and

to preserve and strengthen key structural elements of the

United States Constitution such as separation of powers,

judicial review, and federalism.”); see also United States v.

Lopez, 514 U.S. 549, 574-76 (1995) (Kennedy, J.,

concurring); New York v. United States, 505 U.S. 144, 156-59

(1992). District courts too often had entered injunctive relief

against state prison systems and facilities without specific

findings of a violation of federal law and frequently continued

that injunctive relief long after the state brought its practices

into compliance. Congress rightly believed that many district

courts were not properly observing the limits on their

equitable authority imposed by principles of federalism and

separation of powers. See Plyler v. Moore, 100 F.3d 365, 374

(CA4 1996) (“Congress has a legitimate interest in preserving

State sovereignty by protecting states from overzealous

supervision by the federal courts in the area of prison

conditions litigation.”).

tremendous costs, financial and societal, that the courts’ actions are

imposing on our States.”); see also H.R. REP. NO. 21, 104th Cong., Ist

Sess. 9 (1995); id. at 24 n.1; 141 CONG. REC. H14,106 (daily ed. Dec. 6,

1995) (statement of Rep. Canady); 141 CONG. REC. $14,418 (daily ed.

Sept. 27, 1995) (statement of Sen. Hatch).

5

“Principles of federalism and separation of powers

impose stringent limitations on the equitable power of

federal courts. When these principles are accorded

their proper respect, Article III cannot be understood

to authorize the Federal Judiciary to take control of

core state institutions like prisons, schools, and

hospitals, and assume responsibility for making the

_ difficult policy judgments that state officials are both

constitutionally entitled and uniquely qualified to

make.” Lewis v. Casey, 518 U.S. 343, 385 (1996)

(Thomas, J., concurring).

Congress intended the PLRA to require the district courts to

better observe those limitations.

The PLRA preserves a district court’s ability to impose or

retain narrowly tailored remedies necessary to correct current

and ongoing violations of inmates’ constitutional rights, but

simultaneously limits a court’s ability to impose or retain

remedies that are not necessary and narrowly tailored to

correct constitutional violations. | Congress’s careful

protection of state sovereignty in the PLRA is consistent with

the Supreme Court’s own caution in the prison conditions

context:

“(W]e have been vigilant in opposing sweeping

remedial decrees in the context of prison

administration. ‘It is difficult to imagine an activity

in which a State has a stronger interest, or one that is

more intricately bound up with state laws,

regulations, and procedures, than the administration

of its prisons.’ Preiser v. Rodriguez, 411 U.S. 475,

491-92 [] (1973). In this area, perhaps more than any

6

other, we have been faithful to the principles of

federalism and separation of powers that limit the

Federal Judiciary’s exercise of its equitable powers in

all instances.” Lewis, 518 U.S. at 386 (Thomas, J.,

concurring).

The PLRA automatic stay is an integral part of Congress’s

design to limit federal court intrusions into state sovereignty

to those necessary to remedy constitutional violations. The

automatic stay does not affect the substantive standards

district courts are to apply under the PLRA, but it was clearly

intended to encourage the courts to “promptly rule” on

termination motions by declaring that failure to do so will

result in atemporary stay of any continuing prospective relief.

See 143 CONG. REC. $12,269 (daily ed. Nov. 9, 1997)

(statement of Sen. Abraham) (stating that Congress intended

the automatic stay “to discourage delay”); H.R. REP. No. 21,

104th Cong., Ist Sess. 26 (1995) (stating that with the

automatic stay “judges will be motivated to decide the

motions [to terminate] and avoid having the stay

automatically take effect”). That legislative goal is both

laudatory and constitutionally permissible. Because §3626(e)

works only a temporary stay of the existing relief and does not

directly and permanently terminate the relief without

reference to appropriate legal standards, it does not violate the

separation-of-powers doctrine.

,

7

I. District Courts Do Not HAVE’ INHERENT

EQUITABLE POWERS TO STAY A CONGRESSIONALLY

IMPOSED AUTOMATIC STAY OF PROSPECTIVE RELIEF.

The federal courts have inherent equitable powers, but the

exercise of those inherent powers can be limited by statute.”

The power of courts to issue injunctions, the most

fundamental of equitable powers, is limited by FED. R. CIv. P.

65(b) and other laws.” Congress has the power and authority

to modify the courts’ equitable powers, and that power is an

essential part of the checks and balances that are the very core

of separation of powers.

Courts’ equitable powers are particularly subject to

congressional control and modification when they have the

potential to interfere with principles of federalism in our

system of dual government. “As part of the delicate

adjustments required by our federalism, Congress has

rigorously controlled the ‘inferior courts’ in their relation to

the courts of the states. . .. We must be scrupulous in our

regard for the limits within which Congress has confined the

authority of its own creation.” Toucey v. New York Life Ins.

4. Chambers v. NASCO, Inc., 501 U.S. 32, 47 (1991).

5. See, e.g., Lauf v. Shinner, 303 U.S. 323, 327 (1938) (holding

that the district court erred by granting an injunction in the absence of

findings made prerequisite to jurisdiction by Norris-La Guardia Act);

Judiciary Act of 1793, §5, 1 Stat. 335 (“nor shall a writ of injunction be

granted (by any court of the United States) to stay proceedings in any

court of a state”). The PLRA was “[flormulated as a contraction of the

federal courts’ equity jurisdiction” and is not an “isolated instance of

withholding from the federal courts equity powers possessed by Anglo-

American courts.” Toucey v. New York Life Ins. Co., 314 U.S. 118, 130

n.2, 147-48 (1941).

8

Co., 314 U.S. 118, 147-48 (1941). “The special delicacy of

the adjustment to be preserved between federal equitable

power and State administration of its own law has been an

historic concern of congressional enactment.” Stefanelli v.

Minard, 342 U.S. 117, 120 (1951). Although some courts,

including the Fiith and Sixth Circuits in this context, have

insisted that Congress may limit the courts’ equitable powers

only by a clear legislative command,’ amici are doubtful that

Congress has any greater burden of clarity in this area than in

any other area in which it legislates.

In any event, the PLRA’s automatic stay in §3626(e) is an

exceptionally clear legislative command, and its language

makes clear that Congress intended the stay to be mandatory

and not subject to an equitable stay by a district court. The

unambiguous language of the statute declares that a motion to

terminate “shall operate as a stay” of all prospective relief

thirty days after the motion to terminate is filed until the court

rules on the motion. If there was any doubt about Congress’s

intent in using the word “shall,” the 1997 amendments further

clarified that the automatic stay was not intended to be

discretionary. In November 1997, §3626(e)(3) was amended

6. Califano v. Yamasaki, 442 U.S. 682, 705 (1979); Porter v.

Warner Holding Co., 328 U.S. 395, 398 (1946) (“Moreover, the

comprehensiveness of this equitable jurisdiction is not to be denied or

limited in the absence of a clear and valid legislative command. Unless

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. ‘The great principles of

equity, securing complete justice, should not be yielded to light

inferences, or doubtful construction.” (citing Brown v. Swann, 35 U.S.

(10 Pet.) 497, 503 (1836)).

_—_—

9

to allow a one-time, sixty-day delay of the automatic stay. If

Congress believed that courts already had authority to stay the

stay, it would not have thought it necessary to respond to

concerns that 30 days was not enough time to rule on motions

to terminate, and it certainly would not have expressly

provided a 60-day statutory stay of the stay. There was no

need for the amendments if courts could already stay the

automatic stay. As the Seventh Circuit summarized: “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.” French v. Duckworth, 178 F.3d 437, 443 (CA7 1999).

The Seventh Circuit split with the Fifth Circuit and the

Sixth Circuit on the issue of whether district courts “retain”

inherent equitable power to “stay the stay.” The three

majority opinions and the dissenting opinions from the Sixth

and Seventh Circuits illustrate the three approaches courts

have taken to the automatic stay provision.

The first approach was taken by the Sixth Circuit in Hadix

v. Johnson, 144 F.3d 925 (CA6 1998), and adopted by the

Fifth Circuit in Ruiz v. Johnson, 178 F.3d 385 (CAS 1999).

Hadix asserted that Congress may modify the courts’ inherent

equitable powers only by clear command and that ambiguous

statutes should be interpreted in a manner consistent with the

Constitution if possible. Hadix incorrectly held that the

automatic stay does not clearly modify inherent equitable

powers and that courts “retained” equitable power to stay the

automatic stay. Hadix, 144 F.3d at 944-46. The Sixth Circuit

further justified its decision by declaring that the automatic

Stay provision, if read literally, would unconstitutionally

violate separation of powers in the absence of a court’s

10

inherent power to stay the automatic stay. /d. at 942-44. The

Fifth Circuit in Ruiz similarly interpreted the automatic stay

to permit a court to stay the stay, but did not address whether

the automatic stay provision would be constitutional as

written. Ruiz, 178 F.3d at 396.

The second approach, represented by the majority in this

case, is that the PLRA does not allow courts any discretion to

stay the automatic stay and that the PLRA therefore violates

the Constitution. French, 178 F.3d at 443. The French

majority ruled that Congress had clearly modified the lower

courts’ inherent equitable powers and taken away any ability

to “stay the stay,” thus violating separation of powers.

French, 178 F.3d at 443-44.

The third (and correct) approach—trepresented by Judge

Norris, concurring and dissenting in Hadix, and by Judges

Easterbrook, Posner, and Manion, dissenting from the denial

of rehearing en banc in French, is similar to the second in that

both view the PLRA as not leaving courts any inherent power

to “stay the stay,” but it recognizes that the automatic stay,

even as literally construed, does not violate separation of

powers. Hadix, 144 F.3d at 950 (Norris, J., concurring and

dissenting); French, 178 F.3d at 448 (Easterbrook, Posner,

and Manion, JJ., dissenting from denial of rehearing en banc).

Without focusing on the text that Congress actually

enacted, the Fifth and Sixth Circuits improperly attempted to

avoid the separation of powers question by suggesting that

they were duty-bound to adopt an interpretation of the

automatic stay that did not raise a constitutional question. See

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1,30 (1937)

(“As between two possible interpretations of a statute, by one

of which it would be unconstitutional and by the other valid,

[a court’s] plain duty is to adopt that which will save the

act.”). However, a court’s duty to avoid constitutional

questions is not unlimited, and “a court may not exercise

legislative functions to save the law from conflict with

constitutional limitation.”’ Courts must construe statutes

consistent with the Constitution, if the language will bear that

construction, but “[c]ourts cannot redraft statutes so that they

read the way Congress might have written them, or should

have written them.” French, 178 F.3d at 442. Because the

PLRA’s automatic stay cannot reasonably be read as a

permissive stay, a court may not misconstrue the statute

simply to avoid a constitutional question.

The Fifth and Sixth Circuits also erroneously relied on

§3626(e)(4), which makes orders staying or otherwise barring

the automatic stay automatically appealable. The fact that

Congress ensured that such orders would be appealable does

not suggest that Congress wanted courts to stay or bar the

automatic stay. To the contrary, that Congress permitted an

appeal only from orders interfering with the automatic

stay—and not from the automatic stay itself—strongly

suggests that the appeal provision was intended to discourage

orders blocking the automatic stay.

7. Lowe v. SEC, 472 U.S. 181, 212 (1985) (White, J.,

concurring) (citing Yu Cong Eng'g v. Trinidad, 271 U.S. 500, 518

(1927)); see also Crowell v. Benson, 285 U.S. 22, 76-77 (1932)

(Brandeis, J., dissenting) (“The court may not, in order to avoid holding

a statute unconstitutional, engraft upon it an exception or other

provision. ... Neither may it do so to avoid having to resolve a

constitutional doubt.”).

12

Section 3626(e)(4) cannot support an inherent power

rationale because the courts’ reliance on the addition of (e)(4)

as part of the 1997 amendments presupposes that the

“inherent” power did not exist before November 1997 and,

therefore, was not inherent at all. There is a simpler and more

logical explanation for (e)(4). Prior to the 1997 amendments,

if a district court'were to issue a temporary restraining order

or other injunction that prevented the automatic stay provision

from going into effect, as happened initially in French, the

prison system could challenge the district court’s ruling

through an interlocutory appeal, pursuant to 28 U.S.C.

§1292(aX(1). But if the district court instead held the

automatic stay unconstitutional, as later happened in French,

Hadix, and Ruiz, a prison system would not be able to

challenge that ruling by interlocutory appeal.’

By November 1997, the district courts in Hadix, French,

and Ruiz had all issued unappealable orders holding the

automatic stay provision unconstitutional.’ By enacting

8. In Hadix, for example, prior to the November 1997

amendment, the prisoner class argued on appeal that the district court’s

orders holding the automatic stay unconstitutional were not appealable

interlocutory orders and that the Sixth Circuit therefore lacked

jurisdiction to hear the prison system’s appeal of the district court’s order

finding the automatic stay provision unconstitutional. Hadix, 144 F.3d at

936.

9. French, 178 F.3d at 440-41; Hadix v. Johnson, 933 F Supp.

1360 (E.D. Mich. 1996); Hadix v. Johnson, 933 F.Supp. 1362 (W.D.

Mich. 1996) (demonstrating that orders finding the automatic stay

provision unconstitutional were signed on July 11, 1997; July 5, 1996;

and July 3, 1996 respectively). The district court in Ruiz signed an order

on September 25, 1996, declaring the automatic stay provision

13

(e)(4), Congress intended only to permit an immediate appeal

of the kinds of orders that courts were already entering.

Contrary to Hadix’s suggestion that Congress enacted (e)(4)

in an effort to allow courts to stay the stay, Congress in fact

enacted it for exactly the opposite purpose." It is ironic that

Congress’s effort to provide a means to appeal erroneous

district court orders invalidating the automatic stay has been

construed as essentially legitimizing those orders.

Nor is there significance in the distinction between

§3626(e)(1)’s provision for mandamus review of a district

court’s refusal to rule promptly on a motion to terminate and

§3626(e)(4)’s provision for interlocutory appeal of a district

court’s blocking of the automatic stay. There is nothing to

appeal when a court refuses to rule promptly on a motion, and

only mandamus can be used to challenge a court’s refusal to

rule. Properly construed, (e)(1) and (e)(4) work in tandem to

provide appellate relief for anticipated district court errors that

would delay the resolution of PLRA motions to terminate.

The PLRA’s automatic stay cannot fairly be read to allow

district courts to stay the stay and the Fifth and Sixth Circuits

erred in ruling otherwise. The text and structure of §3626(e)

clearly express Congress’s intent to impose an automatic stay

not subject to equitable delay. Allowing courts to stay the

stay undermines congressional intent to require courts to rule

unconstitutional.

10. See 143 CONG. REC. $12,269 (daily ed. Nov. 9, 1997)

(statement of Sen. Abraham) (“The amendments also clarify that the stay

is in fact automatic by expressly modeling it on the bankruptcy automatic

stay, and they state explicitly that any order blocking the automatic stay

is appealable, thereby securing review of the district court’s action.”).

14

promptly on whether their orders governing state prison

systems meet the valid requirements of the PLRA.

Il. THE AUTOMATIC STAY PROVISION DOES NOT VIOLATE

SEPARATION OF POWERS.

The PLRA’s automatic stay is a procedural mechanism,

designed to encourage district courts to promptly address the

merits of PLRA termination motions, that does not violate the

separation of powers doctrine. The PLRA generally

authorizes defendants in prison conditions lawsuits to obtain

“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 a 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). The district court may

refuse to terminate jurisdiction only if it makes written

findings that the relief meets those standards. §3626(b)(3).

In other words, to better balance federalism and separation of

powers concerns, Congress removed the district courts’

equitable powers to order injunctive relief beyond that

necessary and narrowly tailored to remedy constitutional

violations."'

The Court had previously held that a district court could,

with a state’s consent, order relief broader than what was

necessary and narrowly tailored to correct a constitutional

11. See Plyler v. Moore, 100 F.3d 365, 374 (CA4 1996)

(“Congress has a legitimate interest in preserving state sovereignty by

protecting states from overzealous supervision by the federal courts in

the area of prison conditions litigation.”).

15

violation. Rufo v. Inmates of Suffolk County Jail, 502 U.S.

367, 389 (1992). But the PLRA modifies the Court's decision

in Rufo by declaring that district courts may no longer gram

or maintain broader relief—even if the state consents, as Rufv

had permitted. Since the PLRA’s enactment, whether

consensual or not,

“federal-court decrees must directly address and

relate to the constitutional violation itself. Because of

this inherent limitation upon federal judicial

authority, federal-court decrees exceed appropriate

limits if they are aimed at eliminating a condition that

does not violate the Constitution or does not flow

from such a violation, or if they are imposed upon

governmental units that were neither involved in nor

affected by the constitutional violation.” Milliken v.

Bradley, 433 U.S. 267, 281-82 (1977).

By that limitation, the PLRA’s termination provisions

restrict the district courts’ equitable authority to issue or

continue injunctions that go beyond the (b)(3) restrictions.

See Imprisoned Citizens Union .v. Ridge, 169 F.3d 178, 185

(CA3 1999). Although relatively few courts have dealt with

separation-of-powers challenges to the automatic stay, the

termination provisions have been attacked numerous times as

an unconstitutional violation of the principle of separation of

powers, but every circuit to expressly consider the

constitutionality of the PLRA’s termination provisions has

upheld them.’

12. See Cagle v. Hutto, 177 F.3d 253, 256 (CA4 1999); Nichols

v. Hopper, 173 F.3d 820, 821-25 (CA11 1999); Benjamin v. Jacobson,

16

The analysis of those courts is instructive and should be

dispositive of the separation-of-powers challenge in this case.

If there is no separation-of-powers violation in the statutory

command that a district court lacks discretion to retain—and

must terminate—prospective relief that does not satisfy (b)(3),

as numerous courts have held, then a related provision that

merely stays the effect of that prospective relief temporarily

while the district court decides whether it must terminate the

relief should not pose any separation-of-powers difficulty.

The Seventh Circuit erroneously ruled that the automatic

stay provision contravenes United States v. Klein, 80 U.S. (13

Wall.) 128 (1872), which held that Congress violates

separation of powers when it prescribes a rule of decision to

courts in pending cases. The automatic stay does not

prescribe any ruling at all—it only stays prospective relief

until the district court rules on the merits of the PLRA

172 F.3d 144, 149-50 (CA2) (en banc), cert. denied sub nom., Benjamin

v. Kerik, 120 S.Ct. 72 (1999); Ridge, 169 F.3d at 182-83; Hadix v.

Johnson, \133 F.3d 940, 943-45 (CA6), cert. denied sub nom., Hadix v.

McGinnis, 118 S.Ct. 2368 (1998); Dougan v. Singletary, 129 F.3d 1424,

1426-27 (CAI11 1997), cert. denied, 118 S.Ct. 2375 (1998); Inmates of

Suffolk County Jail v. Rouse, 129 F.3d 649 (CA1 1997), cert. denied, 118

S.Ct. 2366 (1998); Gavin v. Branstad, 122 F.3d 1081, 1087 (CA8 1997),

cert. denied, 118 S.Ct. 2374 (1998); Plyler v. Moore, 100 F.3d 365, 371

(CA4 1996), cert. denied, 117 S.Ct. 2460 (1997). Although a panel of

the Ninth Circuit initially struck down §3626(b), Taylor v. United States,

143 F.3d 1178 (CA9), reh'g granted and opinion withdrawn, 158 F.3d

1059 (CA9 1999) (en banc), the en banc court held that the judgment in

question had no prospective effects and that the §3626(b) motion to

terminate was therefore moot. Taylor v. United States, 181 F.3d 1017,

1017 (CA9 1999) (en banc).

17

termination motion.'? As noted, §3626(b), not §3626(e).

establishes the substantive standards district courts must apply

in determining whether to terminate prospective relief, and

those standards have been repeatedly upheld against

constitutional challenge. Section 3626(e) merely encourages

district courts to rule promptly on termination motions

and—to enforce that legislatively established

deadline—provides that continuing prospective relief will be

temporarily stayed until the court rules on the termination

motion.

Klein does not even apply when Congress amends

applicable law, as it did with the PLRA. Plaut v. Spendthrift

Farm, Inc., 514 U.S. 211, 218 (1995). It has long been clear

that Congress may change the law underlying equitable relief,

even if the change is specifically targeted and limited in

applicability to a particular injunction, and even if the change

necessarily results in the lifting of the injunction. See

Robertson v. Seattle Audubon Soc’y, 503 U.S. 429, 437

(1992); Pennsylvania v. Wheeling & Belmont Bridge Co., 59

U.S. (18 How.) 421, 431-32 (1855). Legislation that “alter[s]

the prospective effect of injunctions entered by Article III

courts” does not violate separation of powers. Plaut, 514 U.S.

at 232. If a permanent alteration of the prospective effect of

an injunction does not implicate separation of powers, then

13. See 143 CONG. REC. $12,269 (daily ed. Nov. 9, 1997)

(statement of Sen. Abraham) (“The argument that the court is being

forced to rule on anything on an unrealistic timetable is incorrect because

the automatic stay imposes no requirement that they rule. It only

provides that if they do not rule there is no order in effect until they do

so.”).

18

neither should the temporary alteration caused by the

automatic stay.

This Court has never held or even suggested that a

temporary stay of prospective injunctive relief could violate

separation of powers principles.'* The PLRA’s automatic stay

provision shares many common characteristics with well-

known and accepted automatic stay procedures that have

never been thought to be unconstitutional. For instance, if the

PLRA’s automatic stay is unconstitutional, then the

Bankruptcy Code’s automatic stay, 1 1 U.S.C. §362, must also

be unconstitutional. The bankruptcy stay provides, in part,

that the mere filing of a bankruptcy petition “operates as a

stay, applicable to all entities, of . . . the enforcement, against

the debtor or property of the estate, of a judgment obtained

before the commencement of the case.” Consequently, a

defendant with numerous “final judgments” against it can

obtain an automatic stay of those judgments simply by filing

a bankruptcy petition.

Unlike the PLRA automatic stay, which is not immediate

and only takes effect if the district court delays its own

decision, the bankruptcy automatic stay is effective

immediately and depends on neither action nor inaction by the

district court. Moreover, unlike the PLRA stay, which the

district court can lift by making the findings required by

§3626(b), the court that enters a judgment subject to the

bankruptcy automatic stay is powerless to enforce that

14. Amici believe the Congress could easily have limited directly

the duration of any injunctive relief imposed in prison conditions cases

and that the temporary stay Congress actually enacted easily passes

constitutional review.

19

judgment until the bankruptcy court acts to lift the stay. The

bankruptcy stay is more far-reaching and onerous than the

PLRA’s automatic stay, yet the Court upheld the

constitutionality of the bankruptcy stay long ago, Kalb v.

Feuerstein, 308 U.S. 433, 438-39 (1940), and no one thinks

that it violates separation of powers.

Another example of a valid automatic stay is FED. R. CIV.

P. 62,'° which entitles a party appealing a valid final money

judgment to an automatic stay of the judgment upon posting

a supersedeas bond.'® A judgment debtor’s right to secure the

automatic stay of Rule 62 is absolute and nondiscretionary.

Even if the district court has entered a valid final judgment,

the judgment debtor may secure an automatic stay of that

judgment merely by filing an adequate bond with the clerk.

Like a bankruptcy stay, a Rule 62 stay is effective

immediately. Both stays are stricter than the PLRA’s

automatic stay. All three are constitutional.

There are numerous other statutory deadlines that require

a court to act by a certain time. Rule 65(b) limits a temporary

restraining order to 10 days (with a single extension allowed

for another ten days). As Judge Easterbrook pointed out:

15. Although Rule 62 is a rule of civil procedure and not a

statute, it still has the force of law because it was promulgated under the

authority of the Rules Enabling Act, 28 U.S.C. §2072. Inre Guthrie, 733

F.2d 634, 637 (CA4 1984).

16. Hebert v. Exxon Corp., 953 F.2d 936, 938 (CAS 1992);

Cinerama, Inc. v. Sweet Music, S.A., 482 F.2d 66, 68 (CA2 1973).

20

“Just as [§3626(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.”

French, 178 F.2d 437, 449 (Easterbrook, J.,

dissenting from denial of rehearing en banc).

Judge Easterbrook described other deadlines that do not

violate separation of powers. The Speedy Trial Act requires

a court to try defendants within 70 days or dismiss the

indictment.'’ Appeals by persons incarcerated for contempt

17. 18 U.S.C. §§3161, 3162(aX(2). The Fourth Circuit upheld

the constitutionality of this statute against a separation of powers

argument. United States v. Bramer, 691 F.2d 691, 695-96 (CA4 1982)

(“Klein is nevertheless inapposite, since the Speedy Trial Act lays down

no ‘rules of decision,’ but only rules of practice and procedure. Many

cases have upheld the power of Congress to prescribe rules of practice

and procedure for the federal courts. As a matter of facial

constitutionality, we see no difference between the time constraints and

dismissal sanction of the Speedy Trial Act and the host of other

procedural requirements of unquestioned validity by which Congress

regulates the courts of its creation—such measures as the Federal Rules

of Civil Procedure, the Federal Rules of Criminal Procedure, the Federal

Rules of Appellate Procedure, the Federal Rules of Evidence, and statutes

prescribing who may sue and where and for what (citations omitted).”).

21

of a grand jury must be decided within 30 days.'* A court of

appeals must grant or deny, within 30 days, an application for

to leave to commence a second or successive collateral

attack.'” Judge Easterbrook addressed numerous other time

deadlines in criminal cases.”°

The real objection to the automatic stay provision is that

it gives a court only 30 (or 90) days to rule on a motion to

terminate before the stay takes effect. But that is not a

separation of powers concern. Even if Congress had directly

required the district courts to rule on termination motions

within a certain time period, that would not implicate the

separation of powers doctrine. The PLRA automatic stay

leaves the judicial decision in the hands of the judiciary and

does not require a specific result in any given case. Even if

the stay takes effect, the court retains the ability to terminate

the stay simply by ruling on the motion to terminate.

The PLRA automatic stay is Congress’s attempt to force

reluctant district courts to apply the PLRA. It is especially

ironic when those very courts hold that the attempt violates

separation of powers. As one commentator put it,

“Separation of powers was designed to restrain bad

men and excessively zealous good men; the bench

surely has some of each. Isn’t there potential for

abuse when one life-tenured judge tries to run an

entire prison system, housing authority, or school

18. 28 U.S.C. §1826(b).

19. 28 U.S.C. §2244(b\(3)(D).

20. French, 178 F.3d at 452-53 (Easterbrook, J., dissenting from

denial of rehearing en banc).

22

district? . . . Are appellate review, the pressure of

public opinion, and the theoretical threat of

impeachment sufficient safeguards?” DOUGLAS

LAYCOCK, MODERN AMERICAN REMEDIES 307 (2d

ed. 1994).

The automatic stay is constitutional. The Court should

reverse the judgment of the Seventh Circuit. The Court

should reaffirm Congress’s role in protecting the principles of

separation of powers and federalism that are threatened in all

institutional reform cases with seemingly permanent, minutely

detailed control of state institutions by the federal courts.

®

23

CONCLUSION

For these reasons, the Court should reverse the judgment

of the Seventh Circuit holding that the PLRA’s automatic stay

provision violates separation of powers.

Respectfully submitted,

JOHN CORNYN

Attorney General of Texas

ANDY TAYLOR

First Assistant Attorney General

SHANE PHELPS

Deputy Attorney General

For Criminal Justice

GREGORY S. COLEMAN

Solicitor General

Counsel of Record

CHARLES K. ELDRED

Assistant Attorney General

Office of the Attorney General

P.O. Box 12548

Austin, Texas 78711-2548

(512) 936-1700