Amicus Curiae Brief — Miller v. French

FILED

feb 3 Qo © Py 6 an

Nos. 99-224, 99-532 |

In the Supreme Court of the United States

JACK DUCKWORTH, SUPERINTENDENT OF THE PENDLETON

CORRECTIONAL FACILITY, ET AL., Petitioners,

Vv.

RICHARD A. FRENCH, ET AL., Respondents.

UNITED STATES OF AMERICA, Petitioner,

V.

RICHARD A. FRENCH, ET AL., Respondents.

ON CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF AMICI CURIAE OF

WASHINGTON LEGAL FOUNDATION;

UNITED STATES SENATOR SPENCER ABRAHAM;

UNITED STATES REPRESENTATIVE TOM DeLAY;

AND ALLIED EDUCATIONAL FOUNDATION

IN SUPPORT OF PETITIONERS

PAUL D ‘MENT DANIEL J. POPEO

Counsel of Record R. SHAWN GUNNARSON

JEFFREY S. BUCHOLTZ WASHINGTON LEGAL FOUNDATION

KING & SPALDING 2009 Massachusetts Ave., N.W.

1730 Pennsylvania Ave.,N.W. Washington, D.C. 20036

Washington, D.C. 20006-4706 (202) 588-0302

(202) 737-0500

LEE LIBERMAN OTIS

SENATE JUDICIARY COMMITTEE

323 Dirksen Senate Office Bldg.

Washington, D.C. 20510

February 3, 2000 (202) 224-6098

to

QUESTIONS PRESENTED

1. Whether the automatic stay provision of the

suspend the automatic stay under traditional

Prison Litigation Reform Act, 18 U.S.C. §

equitable standards.

or legislatively annulling a judgment.

2. Whether a district court has the authority

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QUESTIONS PRESENTED

TABLE OF AUTHORITIES

Il.

ITI.

TABLE OF CONTENTS

THE PRISON LITIGATION REFORM

ACT AND THE AUTOMATIC STAY

A.

Congress Enacted the Prison

Litigation Reform Act to

Restore Control of State Prisons

a

The Operation of tlie PLRA’s

Remedial Requirements ......................

SECTION 3626(e) MUST BE READ

ACCORDING TO ITS PLAIN MEANING

A.

The Plain Language of the Auto-

matic Stay Makes Clear That It

Precludes any Equitable Discretion

to Override the Stay ...............ccccccccceeee

The Justice Department’s Canons

of Construction Do Not Justify

Ignoring the Plain Language of

the Automatic Stay .............cccccccccceeees

THE AUTOMATIC STAY DOES NOT

VIOLATE THE SEPARATION OF

POWERS

A.

Separation of Powers Principles

Do Not Prevent Congress From .

SOO EEE EEE EERE EEE EEE HEE O RED

iv

Placing Legislative Limits on the

Federal Courts’ Equitable Powers .......... 14

B. Nothing in This Court’s Precedents

Suggests that the Automatic Stay

Provision Violates Separation of

PE CED cerectenesntirerrenieneteseemenecens 16

C. Nothing in the Penumbra of

Article III Suggests that the

Automatic Stay Provision Violates

the Separation of Powers .........:cccccccccceeees 22

1. The Self-Executing Nature

of the Automatic Stay Does

Not Violate the Separation

ee 23

2. Federal Law Features Other

Self-Executing Provisions

with Far More Demanding

. 0 ff ee ee 25

D. The Automatic Stay Does Not

Violate the Separation of Powers

Simply Because it Makes it More

Difficult for Federal Courts to

Supervise State and Local Prisons ......... 29

GS | crcsssesesnssesmstenenssmnepeeeseteimmnantinnnmeninniastien 30

Vv

TABLE OF AUTHORITIES

Page

Cases:

Aptheker v. Secretary of State, 378 U.S. 500

TEED cnscansnensnmisensesemmatdedentietsnemenemensemenamnsmmasmnanteies 11

BellSouth Corp. v. F.C.C., 162 F.3d 678 (D.C.

GE, TIED cxpssenteienhemscanneinnmnneiannscnmmeion 24

Califano v. Yamasaki, 442 U.S. 682 (1979) ..........c...0002 12

California v. Grace Brethren Church, 457 U.S.

Ge GED commen 15

Caminetti v. United States, 242 U.S. 470 (1917) .......... 10

Celotex Corp. v. Oil, Chemical and Atomic

’ Workers Int’l Union, 516 F.2d 242 (3d Cir.

ee ee ETE 26

Commodity Futures Trading Comm’n v. Schor,

Gee Ge Ge GED eeeemeneeee 11

Hadix v. Johnson, 144 F.3d 925 (6th Cir. 1998) ........... 11

Imprisoned Citizens Union v. Ridge, 169 F.3d

BG , SE ccrneenerucetceneniecnnienememenen 16

In re Dist. No. 1-Pacific Coast Dist., Marine

Engineers’ Beneficial Ass’n, 723 F.2d 70

CD.C. Cit. 16GB) .nccccccccccccesceee soteneaipien 26

Inmates of Suffolk County Jail v. Rouse, 129

F.3d 649 (1" Cir. 1997) ........ 19

Landgraf v. USI Film Prods., 511 U.S. 244

| ee a .. 18-19

Lauf v. E.G. Shinner & Co., 303 U.S. 323

SEIIED cocsennsacsuiuenptaneenisinatepansiregnteuipeampeminemeenaneententn 15

Missouri v. “Jenkins, S1S U.S. 70 (1905) ..........cc-ceeses0ee 16

Mistretta v. United States, 488 U.S. 361 (1989) ...... 14-15

Pennsylvania v. Wheeling & Belmont Bridge

Co., 54 U.S. 518 (1851) - 17

Pennsylvania v. Wheeling & Belmont Bridge

Co., 59 U.S. 421 (1855) passim

Plaut v. Spendthrift Farm, Inc., 514 US. 211

(1995) -. passim

Reno v. American-Arab Anti-Discrimination

Committee, 119 S. Ct. 936 (1999) .........cccccccecrerereeeees 15

Robertson v. Seattle Audubon Soc., 503 U.S.

“429 (1992) 21

vi

Rufo v. Inmates of Suffolk County Jail, 502

Se GD CED crrscenceceunsnesimenee 19

SBC Commun., Inc. v. F.C.C., 154 F.3d 226

(5 Cir. 1998) pusnennesibinmampiaetenemntiiamuapeemmemmememnees 24

System Federation No. 91, Ry. Empl. Dept. v.

Ce, Saree We GSEs GD crreseseneeeeeeeen 19

Toledo, P. & W. R.R. v. Brotherhood of R.R.

Trainmen, Enterprise Lodge No. 27, 132

ee Se Gr Gs eiereteteticnteerinictermetccntinnionn 26

Turner v. Safley, 482 U.S. 78 (1987) ........ccececceseesereeseeeenes 16

United States ex rel. Attorney General v.

Delaware & Hudson Co., 213 U.S. 366

ERED cccnmeseccequansemmtnnsensennsepensuanbintataamnsnennessnemmnenmeemanennnenin 11

United States v. Klein, 80 U.S. 128 (1871) ............. passim

United States v. Ron Pair Enterprises, Inc.,

GD We Se GD eenenenenennnmmenteene 10

Walberg v. Israel, 766 F.2d 1071 (7 Cir.) ......cccccceseceeeee 16

Constitutional Provisions, Statutes, and Rules:

Seer nee 5, 7

Te 13

RO ae eae 5, 8

ren 5

ea 5, 10

I 6, 9

I a Oe i eriaiierliniienineatllatiaieaiis 6, 9

0 RE rene 12

I Is Se I ional inalienable 8

BD I, Oe I csccssreninisiteecrtnnetiaatiarebbanntattniiuadeniitintions 6

Sy I tiie sinks nee niinttincinianinaiitinetinnanteaaiiidiias 15

5: a TT 25-26

Ss its GE ti GED cccnecnescciecteneemnineestennesstinienmmenes 25-26, 28

Pub. L . No. 96-458, 94 Stat. 2035 (1980) ....................... 15

Pub. L. No. 104-104, Tit. VI, § 601(a), 110 Stat.

rE 20, 23

Pub. L. No. 104-134, § 802(b\3), 110 Stat. 1321

(1996) .... maassenguemmummmteenenamens 1

U.S. Constitution, Article I, § 8 Cl. 9 ..cccccccccccccccccceeeeeeees 15

U.S. Constitution, Article III - passim

Other Materials:

WARREN, THE SUPREME COURT IN UNITED

STATES HISTORY (1926) ........:.cecseceseeerseeeeees

Prison Reform: Enhancing the Effective-

ness of Incarceration: Hearing on S. 3,

S. 38, S. 400, S. 866, S. 930, and H.R.

667 Before the Senate Judiciary Comm.,

104th Cong. (July 27, 1995) ......-.ccceeeveee

THE FEDERALIST (Jacob E. Cooke ed., 1961)

INTEREST OF AMICI CURIAE

The Washington Legal Foundation (WLF) is a

nonprofit public interest law and policy center based

in Washington, D.C., with supporters in all 50 States.’

WLF regularly appears in legal proceedings before

federal and state courts to defend and promote free

enterprise and individual rights. WLF has appeared

before this Court in cases involving prison litigation

and the separation of powers See, e.g., Lewis v.

Casey, 116 S. Ct. 2174 (1996); Plaut v. Spendthrift

Farm, 514 U.S. 211 (1995).

The Congressional amici signing this brief include

Members from both houses who are still in Congress

and were leading sponsors of the relevant provisions

of the Prison Litigation Reform Act or its predecessor

legislation. They also include leading proponents

of the 1997 amendments to that legislation.

The Allied Educational Foundation (AEF) is a

nonprofit charitable and educational foundation based

in Englewood, New Jersey. Founded in 1964, AEF

is dedicated to promoting education in diverse areas

of study, such as law and public policy, and has

appeared as amicus curiae in this Court on several

occasions.

Amici submit this brief in support of Petitioners

and with the consent of all parties. Letters of consent

have been filed with the Clerk of the Court.

SUMMARY OF ARGUMENT

In 1996 Congress enacted the Prison Litigation

Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat.

1321, 1366-77 (1996). The PLRA established a

comprehensive system governing prospective relief

1 No counsel for a party authored this brief in whole or in part,

and no person or entity, other than amici curiae and their counsel

made a monetary contribution to the preparation and submission

of this brief.

2

affecting prison conditions. Before a court may issue

such an order, the PLRA requires it to find that a

federal right has been violated and that the order

is narrowly tailored to remedy that violation. To

ensure that state and local prisons do not labor under

orders that failed to meet these requirements,

Congress included a number of procedural devices,

including the automatic stay provision at issue here.

The automatic stay attempts to ensure that courts

will measure decrees against the new, more

demanding tests of the PLRA within 90 days of the

filing of a motion to terminate. If the court does so,

the automatic stay never comes into play. However,

if the court takes longer than 90 days, the automatic

stay lives up to its name—the court cannot extend

the decree without making the findings required by

the PLRA.

Despite the clear import of the automatic stay,

the Justice Department urges this Court to accept

a so-called saving construction. Under the

Department’s proposed construction, courts retain

equitable discretion to continue a decree even after

90 days. This interpretation is at war with the plain

text of the statute. Nonetheless, the Department

suggests that the canons of construction that direct

courts to avoid constitutional questions and

restrictions on their equitable powers support its

interpretation. But no canon licenses a court to

rewrite a statute to deny a plain congressional intent

to modify the courts’ injunctive powers.

Perhaps the best reason to reject the Department’s

“saving construction” is that the automatic stay does

not need saving. It is perfectly constitutional as

written. Neither of the precedents relied on by the

court below is to the contrary. While Plaut v.

Spendthrift Farm, Inc., 514 U.S. 211 (1995), forbids

Congress from reopening final judgments at law, it

3

reaffirmed Congress’ power to change the law

prospectively to alter the force of existing injunctions.

That is all the PLRA does. Plaut also clarified that

United States v. Klein, 80 U.S. 128 (1871), is not

implicated when Congress changes.the underlying

law. The PLRA not only changed the underlying law,

but ensures that orders affecting state and local

prisons reflect that change.

Nothing in the Constitution, this Court’s

precedents, or anything concealed in the penumbra

of Article III casts doubt on the automatic stay. To

the contrary, the automatic stay operates in the same

fashion as other unquestioned provisions of federal

law. None of this is to deny that the PLRA dnd the

automatic stay make it less convenient for federal

courts to issue injunctions governing state and local

prisons. However, Congress determined that federal

court supervision of state and local prisons raised

tensions that justified these special procedures.

Nothing in Article III or the separation of powers

prevents Congress from making that judgment.

ARGUMENT

I. THE PRISON LITIGATION REFORM ACT

AND THE AUTOMATIC STAY

A. Congress Enacted the Prison Litigation

Reform Act to Restore Control of State

Prisons to State Authorities

Congress enacted the PLRA to address a startling

development. By October 1994, prison systems in

39 States, including 300 of the Nation’s largest jails,

operated under some form of federal court order.

See Prison Reform: Enhancing the Effectiveness of

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

4

S. 930, and H.R. 667 Before the Senate Judiciary

Committee, 104 Cong. 84-85 (July 27, 1995).

Congress concluded that this extraordinary

development violated precepts of federalism,

separation of powers, and common sense. First, these

federal orders govern state and local facilities whose

function is to incarcerate criminals who have

committed state and local crimes. Their operation

lies at the heart of the States’ police powers. Second,

under our Constitution, the political branches decide

how to administer prisons. Continuing judicial

oversight of the details of prison administration takes

judges far afield from their core Article III

responsibilities. Finally, experience demonstrates that

transferring management responsibility for state and

local prisons to federal courts is not only

constitutionally problematic; it is unwise. For

example, in Philadelphia, a prison population cap

imposed by one federal district judge led to the

wholesale release of up to 600 criminal defendants

a week who, in an 18-month period, committed nearly

10,000 new crimes. Id. at 46-53 (Testimony of Lynne

Abraham).

Congress responded by enacting section 802 of

the PLRA, Pub. L. No. 104-134, 110 Stat. 1321, 1366-68

(codified as 18 U.S.C. § 3626). Its sponsors sought

to get federal courts out of the business of managing

state and local prisons and to restore state and local

control over these prisons, within the limits of federal

law.

B. The Operation of the PLRA’s Remedial

Requirements

The PLRA establishes a comprehensive scheme

governing prospective relief affecting prison

conditions. It changes the law concerning the

+)

prerequisites for granting prospective relief, the scope

of permissible relief, the presumptive permissible

duration of that relief, and the requirements for

maintaining prospective relief beyond that

presumptive time period. It also establishes new

procedures to implement these requirements.

The PLRA changes the governing law for granting

prospective relief affecting prison conditions. To grant

such relief, a court must find that the relief is

necessary to correct a violation of the federal rights

of specific prisoners. 18 U.S.C. § 3626(a)(1). In

addition, any relief granted must be narrowly tailored

to correct the violation and give due regard to the

public safety.

If a court initially grants prospective relief without

making these findings, a party may move to terminate

that relief immediately. Id. at § 3626(b)(2). The court

must grant that motion unless it determines that the

relief is necessary to correct a current and ongoing

violation of federal law, is narrowly tailored to remedy

that violation, and gives due regard to public safety.

Id. at § 3626(b)(3).

In addition, to prevent an order supported by the

requisite findings from turning into a permanent

transfer of authority over prison operations to a

federal court, the PLRA allows a party to move to

end or modify prospective relief after two years. Id.

at § 3626(b)(1). The court must grant that motion

unless it makes the requisite findings—that the relief

remains necessary to correct a current and ongoing

violation of a federal right, is narrowly tailored, and

gives due regard to the public safety. Id. at §

3626(b)(3).

The PLRA also establishes three new procedural

rules governing these motions to terminate prospective

relief. First, § 3626(e) requires that the court rule

promptly on a motion to terminate. A 1997

6

amendment added an express provision that if the

court does not do so, mandamus lies to compel a

ruling. Id. at § 3626(e)(1).

Second, § 3626(e) includes the automatic stay

provision at issue here. The automatic stay provides

that if the court does not rule within 30 days on a

motion to terminate authorized by §§ 3626(b)(1) or

(2), the motion will operate as a stay of the decree

beginning 30 days after the motion is filed. Id. at

§ 3626(e)(2). The 1997 amendments added a provision

permitting a court to postpone the beginning date

of this stay for no more than 60 days beyond the

initial 30 days for good cause. Id. at § 3626(e)(3).

The stay ends as soon as the court rules on the

motion to terminate. Id. at § 3626(e)(2).

As its name suggests, the stay does not wipe out

the underlying order. The district court retains the

power to lift the stay and preserve the underlying

order simply by ruling on the motion. Id. Indeed,

if the automatic stay provision has its desired effect

and the court rules promptly on the motion to

terminate, then the stay never comes into effect.

Finally, § 3626(e)(4) contains a special provision

governing the appealability of orders blocking the

automatic stay. As recounted in the BRIEF OF AMICI

CURIAE THE ASSOCIATION OF STATE CORRECTIONAL

ADMINISTRATORS AND THE CITY OF NEW YORK, shortly

after the PLRA’s enactment, several district courts

enjoined the automatic stay from taking effect on

the ground that it was unconstitutional, and the courts

of appeals would not entertain appeals from these

orders. To avoid any uncertainty, Congress amended

the PLRA in 1997 to make such orders immediately

appealable.

The PLRA also clarifies that preliminary

injunctions and TROs remain available. Id. at

§ 3626(aX(2). To obtain one, a party need not prove

7

the “violation of a federal right,” but rather, simply

show “harm ... requir{ing] preliminary injunctive

relief.” Id. Under this section, preliminary injunctive

relief should be narrowly tailored to remedy the harm

and courts should give substantial weight to public

safety and principles of comity. Finally, the PLRA

provides that such a preliminary injunction

automatically expires 90 days after entry, unless,

within that time, the court makes the findings

required for final prospective relief under § 3626(a)(1).

II. SECTION 3626(e) MUST BE READ ACCORD-

ING TO ITS PLAIN MEANING :

A. The Plain Language of the Automatic

Stay Makes Clear That It Precludes any

Equitable Discretion to Override the

Stay

The automatic stay provision limits the equitable

discretion of federal courts to maintain the effect of

a prospective order without testing it against the

substantive provisions of the PLRA. If a court does

not rule on a motion to terminate an order within

90 days, the automatic stay provision makes clear

that the court lacks any discretion to keep the order

in effect. Remarkably, however, the Justice

Department maintains that the automatic stay

provision does no such thing. In the Department’s

view, “the text of the automatic stay provision does

not deprive a court of authority to suspend the

automatic stay when justified by traditional equitable

standards. Instead, it simply describes how the

statute is to operate in the absence of judicial

intervention.” U.S. Pet. at 13-14.

8

The Justice Department’s proposed construction

flies in the face of the statute’s text. The full text

of the automatic stay reads as follows:

(2) Automatic stay. —Any motion to modify or

terminate prospective relief made under

subsection (b) shall operate as a stay during

the period—

(A)(1) beginning on the 30" day after [a

motion filed under §§ 3626(b)(1) or (b)(2)]

is filed; ... and

(B) ending on the date the court enters a

final order ruling on the motion.

There is nothing ambiguous about this provision.

First, the text directs that any (b)(1) or (b)(2) motion

shall (not “may”) operate as a stay. It then

establishes a specific beginning point for the stay—30

days after the filing of the motion (unless the court

rules on the underlying motion by that time)—and

a specific ending point—the date on which the court

rules on the underlying motion. Id. On their face,

these provisions leave no room for a freestanding

judicial order “staying the stay.”

If this were not enough, a separate provision

specifies one, and only one, method for delaying the

stay: The court may enter a one-time postponement

of the stay’s effective date for “not more than 60

days” upon a showing of good cause. § 3626(e)(3).

If Congress had meant to add the phrase “or for such

longer period as the court deems necessary,” it would

have. But it did not.’

2 The Justice Department’s contention that the automatic st \y

provision “simply describes how the statute is to operate in the

absence of judicial intervention,” U.S. Pet. at 13-14, relies on the

premise that the statute does not address what happens in the case

(continued...)

Indeed, it is unthinkable that Congress would have

added that language, because it would undermine

the whole point of the automatic stay. It is likewise

unthinkable that Congress would have given federal

courts equitable discretion without specifying the

standard to be applied, as the PLRA does everywhere

else it authorizes courts to enter injunctive relief.

Nonetheless, the Justice Department asks this Court

to accept both of these unthinkable propositions.

Every other provision of subsection 3626(e)

reinforces the plain meaning of the automatic stay.

First, as a matter of context, Congress begins this

subsection with a provision, § 3626(e)(1), that

straightforwardly expresses its intent to end

unnecessary federal supervision of state prisons and

to do so quickly: “The court shall promptly rule on

any motion to modify or terminate prospective relief

in a civil action with respect to prison conditions.

Mandamus shall lie to remedy any failure to issue

a prompt ruling on such a motion.”

In addition, in adding subsection (e)(4), Congress

responded to decisions blocking the automatic stay

as unconstitutional. Congress made clear that such

orders were appealable “regardless of how the order

is styled or whether the order is termed a preliminary

or a fimal ruling.” This provision reflects Congress’

overriaing interest in ensuring that courts promptly

implement the terms of the PLRA—including the time

limits of the automatic stay. The provision is

inconsistent with the Department’s contention that

2 (..continued)

of judicial intervention, so courts can fill in the gap with their

equitable discretion. But that is wrong. The statute expressly

addresses what happens in the case of judicial intervention—the

stay can be extended one time for not more than sixty days upon

a showing of good cause.

10

those time limits are mere default rules applicable

only in the absence of “judicial intervention.”

As with all disputes over statutory interpretation,

the inquiry here correctly “begins where all such

inquiries must begin: wit'. ‘Ye language of the statute

itself.” United States v. Run Pair Enterprises, Inc.,

489 U.S. 235, 241 (1989) (citation omitted). “In this

case it is also where the inquiry should end, for

where, as here, the statute’s language is plain, ‘the

sole function of the courts is to enforce it according

to its terms.’” Id. (quoting Caminetti v. United States,

242 U.S. 470, 485 (1917)). The Justice Department’s

construction must be rejected because it is at war

with the statutory text.

B. The Justice Department’s Canons of

Construction Do Not Justify Ignoring the

Plain Language of the Automatic Stay

Presumably recognizing the weakness of its

proposed interpretation, the Justice Department falls

back on two canons of construction. First, the

Department justifies its rather remarkable

interpretation of § 3626(e) based on “the principle that

a statute should be construed to avoid a serious

constitutional question, when such a construction is

fairly possible.” U.S. Pet. at 17. The Department

argues that the Court should employ this principle

to avoid a “serious separation-of-powers question,”

because, in its view, “the automatic stay can be fairly

interpreted to permit a court to suspend the automatic

stay in accordance with traditional equitable

standards.” Id. at 18 (footnote omitted).

We entirely disagree. The Justice Department

would convert a provision designed to ensure prompt

judicial consideration of motions to terminate into

a provision further empowering courts to continue

an

11

existing orders indefinitely. The only thing

automatically stayed under the Department’s

interpretation is Congress’ intent.

To be sure, this Court avoids constitutional

questions when it fairly can. “{[WJhere a statute is

susceptible of two constructions, by one of which

grave and doubtful constitutional questions arise and

by the other of which such questions are avoided,

our duty is to adopt the latter.” United States ex rel.

Attorney General v. Delaware & Hudson Co., 213 U.S.

366, 408 (1909). However, even this venerable

principle has its limits. “‘Although this Court will

often strain to construe legislation so as to save it

against constitutional attack, it must not and will not

carry this to the point of perverting the purpose of

a statute . . .’ or judicially rewriting it.” Commodity

Futures Trading Comm’n v. Schor, 478 U.S. 833, 841

(1986) (quoting Aptheker v. Secretary of State, 378 U.S.

500, 515 (1964)).

The Department’s interpretation reads the

automatic stay out of the statute and turns § 3626(e)

into “a blank sheet of paper.” Plaut v. Spendthrift

Farm, Inc., 514 U.S. 211, 216 (1995). Under its

proffered construction, district courts would be bound

by no fixed deadline in considering a motion for

termination or modification of prospective relief, so

long as they “judicially intervened.” Although the

Department’s position was accepted by the Sixth

Circuit in Hadix v. Johnson, 144 F.3d 925 (6" Cir.

1998), Judge Easterbrook’s dismissal of it is as

accurate as it is concise: “Congress set a deadline;

Hadizx turns it into mush.” U.S. Pet. App. at 23a

(Easterbrook, J., dissenting). Rules of constitutional

avoidance do not permit courts to turn statutes into

“mush.”

The Department fares no better with its fallback

rule of construction. It invokes a separate canon of

12

construction, which suggests that “‘[aJbsent the

clearest command to the contrary from Congress,

federal courts retain their equitable power to issue

injunctions in suits over which they have

jurisdiction.” Id. at 13 (quoting Califano v. Yamasaki,

442 U.S. 682, 705 (1979)). The problem with this

argument is that Congress expressed its intent in

clear and unequivocal words. The whole point of the

PLRA, in general, and the automatic stay provision,

in particular, is to rein in the equitable power of the

federal courts in an area of traditional state concern.

A canon designed to avoid unintentional displacement

of equitable authority has no place in interpreting

this statute. Applying this canon to the PLRA and

the automatic stay would be worse than unnuanced;

it would flout the will of Congress.

Perhaps the most startling feature of the Justice

Department’s proposed “saving” construction is that

it ignores other aspects of the PLRA that ameliorate

any perceived constitutional difficulty with the

automatic stay. Nothing in the automatic stay

prevents a district court from entering a new

preliminary injunction to prevent irreparable injury

caused by a stay of the preexisting decree. The PLRA

does limit all preliminary injunctions affecting prison

conditions to 90 days. Nonetheless, this residual

authority to issue preliminary injunctions allows a

court to preserve the essence of an existing decree

for up to 180 days following the filing of a motion

for termination or modification.’

3 Section 3626(e\(2AXi), in effect, gives the court 30 days.

Subsection (e)(3) allows the court to postpone the automatic stay

for an additional 60 days on a showing of good cause for any reason

other than “general congestion of the court’s calendar.” And

subsection (a)(2) allows the court to enter a preliminary injunction,

which is effective for an additional 90 days, bringing the total to

180 days from the date a motion for termination or modification

(continued...)

LOPE. LOLOL LI a

13

In light of the variety of deadlines under which

federal officials regularly operate, 180 days surely

constitutes a reasonable period in which to issue

findings regarding a motion for termination or

modification, even in the large and complex cases

that typify prison reform litigation. See U.S. Pet. App.

at 29a-30a (Easterbrook, J., dissenting). However,

unlike the Justice Department’s construction, this

understanding of the PLRA furthers Congress’

objective of ensuring that prospective injunctive relief

is issued only pursuant to the standards of the PLRA.

Unlike the loose equitable standard preferred by the

Department, see U.S. Pet. at 12, the PLRA explicitly

ensures that a court will grant a preliminary

injunction only when it can make the findings

required by the PLRA. § 3626(a)\(2). These constraints

ensure that a court has tools available to avoid

injustice without evading the PLRA.*‘

III. THE AUTOMATIC STAY DOES NOT VIOLATE

THE SEPARATION OF POWERS

The plain text of the automatic stay provision

requires federal courts to test the validity of

° (...continued)

is filed.

. An example may illustrate the key difference between the

Department’s construction of the statute and its operation as

written. Suppose a long-standing consent decree has two provisions,

one narrowly tailored to remedy an ongoing constitutional violation

and the other guaranteeing a hot pot in every cell. If the existing

decree is subject to the automatic stay, a prisoner would have little

difficulty obtaining a preliminary injunction addressing the ongoing

constitutional violation, but not one continuing the hot pot

guarantee. This result complies with the intent underlying the

PLRA. By contrast, applying general equitable principles, a court

might well override the automatic stay and continue the consent

decree without differentiating between the two provisions.

14

injunctive relief affecting prison conditions against

the substantive law of the PLRA. As demonstrated,

the Justice Department’s proposed construction

eviscerates the statute’s plain meaning and should

be rejected on that basis alone. However, this Court

also should reject the Department’s “saving”

construction for the simple reason that the automatic

stay does not need saving. The automatic stay

involves a straightforward exercise of Congress’

undoubted authority to legislate prospectively even

though existing prospective decrees may be

overturned as a result. Far from violating the

separation of powers, the automatic stay promotes

both the separation of powers and federalism by

ensuring that federal courts oversee state and local

prisons only where necessary.

A. Separation of Powers Principles Do Not

Prevent Congress From Placing Legislative

Limits on the Federal Courts’ Equitable

Powers

The “separation of powers” provides a useful

shorthand for the variety of constitutional principles

and legal doctrines that address the division of power

among the three branches of the federal government.

However, the “separation of powers” is not a complete

description of the system created by the founders.

James Madison rejected the notion that the three

“departments ought to have no partial agency in, or

no controul over the acts of each other.” 1HE

FEDERALIST No. 47 at 325-26 (Jacob E. Cooke ed.,

1961). As this Court has observed, the genius of the

government the founders designed “lies not in a

hermetic division among the branches, but in a

carefully crafted system of checked and balanced

power within each branch.” Mistretta v. United States,

15

488 U.S. 361, 381 (1989). The events of last year,

during which the Chief Justice presided over the

Senate sitting as a court in the impeachment trial

of the President prosecuted by managers from the

House of Representatives, illustrates the truth of this

observation.

While the Constitution prevents one branch from

exercising power that belongs to another, it does not

prevent a branch from exercising its authority in a

way that affects the other branches. Article I

authorizes Congress to “constitute tribunals inferior

to the Supreme Court.” Art. I, § 8 cl. 9. Congress

can hardly exercise that authority without having a

profound impact on the courts. Moreover, the

Constitution vests Congress with the power to “make

all laws necessary and proper for carrying into

execution” not only its own enumerated powers, but

also “all other powers vested by this Constitution in

the government of the United States, or in any

Department or Officer thereof.” Art. I, § 8 cl. 18.

Accordingly, Congress unquestionably can, and

frequently does, exercise power over Article III courts

not only by setting or changing the substantive law,

but also by imposing procedural rules and

jurisdictional limits, and even by prescribing standards

of discipline and disqualification for Article III

judges.* All these interactions between Congress and

“ See, eg., Reno v. American-Arab Anti-Discrimination

Committee, 119 S. Ct. 936, 945-47 (1999); Lauf v. E.G. Shinner &

Co., 303 U.S. 323, 330 (1938) (“There can be no question of the power

of Congress thus to define and limit the jurisdiction of the inferior

courts of the United States.”); California v. Grace Brethren Church,

457 U.S. 393, 408 (1982); Judicial Councils Reform and Judicial

Conduct and Disability Act of 1980, P.L. 96-458, 94 Stat. 2035 (1980)

(codified in various sections of Title 28 U.S.C.). Congress’ authority

to require disqualification of Article III judges for the mere

appearance of bias, see 28 U.S.C. § 455, is undoubted, even though

(continued...)

16

the courts are a manifestation, not a violation, of the

Constitution’s system of separation of powers.

Accordingly, there is nothing inherently suspect

about the PLRA or the automatic stay. To be sure,

the PLRA changes the law prospectively and

accordingly alters the prospective effect of existing

orders, like the one at issue here. It further requires

courts to revisit injunctions periodically to prevent

state and local prisons from laboring under orders

that do not comply with the PLRA. The automatic

stay provision, moreover, helps to ensure that courts

consider the continuing validity of such orders

promptly. However, all this is perfectly consistent

with the constitutional structure designed by the

founders. Indeed, by helping extract the courts from

the business of unnecessarily managing prisons—“‘a

task that has been committed to the responsibility

of [the legislative and executive] branches’”’—the

PLRA “is not merely consistent with separation-of-

powers principles; it furthers those principles.”

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

(3d Cir. 1999) (quoting Turner v. Safley, 482 U.S. 78,

84-85 (1987)); see also Missouri v. Jenkins, 515 U.S.

70, 134-35 (1995) (Thomas, J., concurring).

B. Nothing in This Court’s Precedents

Suggests that the PLRA’s Automatic Stay

Provision Violates Separation of Powers

Principles

The automatic stay provision fully complies with

this Court’s precedents. This Court addressed the

limits of Congress’ power to legislate concerning final

. (...continued)

the Constitution requires disqualification only for actual bias, see,

e.g., Walberg v. Israel, 766 F.2d 1071, 1076-77 (7 Cir.), cert. denied,

474 U.S. 1013 (1985).

.

eA SEN Ts LT ART AS

ee

ee ie tse

17

judgments and pending litigation in Plaut v.

Spendthrift Farm, Inc., 514 U.S. 211 (1995), and United

States v. Klein, 80 U.S. 128 (1871). The automatic

stay provision avoids running afoul of the principles

this Court laid down in Plaut and Klein.

The automatic stay provision does not implicate

Plaut for the straightforward reason that the

automatic stay does not attempt to overturn any final

judgment at law, but rather places temporary limits

on prospective relief. Plaut places final judgments

beyond congressional control, but does not limit

Congress’ power to alter the prospective effect of

injunctive relief. Plaut explicitly recognized this

distinction, finding that congressional efforts to limit

injunctive relief and cases upholding those

congressional actions, such as Pennsylvania uv.

Wheeling & Belmont Bridge Co., 59 U.S. 421 (1855),

“distinguish themselves.” 514 U.S. at 232. The Court

emphasized that “nothing in our holding today calls

them into question.” Id.

A contrary view—one that would impose limits

on Congress’ ability to affect prospective relief—

would require overruling this Court’s decision in

Wheeling Bridge, not to mention invalidating key

provisions of the Telecommunications Act of 1996.

Wheeling Bridge rejected a challenge to an Act of

Congress that negated an injunction entered by this

Court in an earlier phase of the litigation. In its first

Wheeling Bridge case, this Court declar2d the bridge

over the Ohio River between Wheeling and Zane’s

Island to be an obstruction, and ordered the bridge

to be elevated or removed. See 54 U.S. 518 (1851).

In response, Congress enacted a statute declaring the

bridge to be a lawful construction in its existing

elevation. Despite Pennsylvania’s argument “that

the act of congress cannot have the effect and

operation to annul the judgment of the court already

18

rendered,” 59 U.S. at 431, the Court upheld the

statute. The Court expressly distinguished the case

of a final judgment in an action for damages. Id.

As to prospective relief, however, the Court held that:

“If, in the mean time, since the decree, this right has

been modified by the competent authority, so that

the bridge is no longer an unlawful obstruction, it

is quite plain the decree of the court cannot be

enforced.” 59 U.S. at 431-32.°

The distinction recognized in Plaut and Wheeling

Bridge between laws seeking to alter final judgments

at law and laws seeking to alter prospective injunctive

relief is neither formalistic nor arbitrary. The

distinction reflects the Article III concerns that

animated this Court’s decision in Plaut, and is firmly

rooted in the primarily prospective nature of

legislative power and the primarily retrospective

nature of judicial power. See, e.g., Landgraf v. USI

’ Nor can Wheeling Bridge be dismissed as an obscure case

without broad implications for the separation of powers. The case

generated substantial interest at the time as both a conflict between

Congress and the courts and as part of the federal government’s

struggle to assert its authority over interstate commerce. See 2

WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 233-36

(1926). One journal at the time caytured the importance of the

issues in the original case, which led to the Court’s order that the

obstruction be removed: “Few cases ever excited greater interest

or seemed to affect more extensively the internal commerce of the

country than this celebrated controversy.” Western L. J., IX (Sept.

1852), quoted in 2 WARREN, at 235. Another paper explained the

controversy over Congress’ reinstatement of the bridge: “This is

the first instance in the whole history of the Government where

Congress ever interposed or attempted to arrest a decree of the

Supreme Court.” New York Tribune (Feb. 19, 1856), quoted in 2

WARREN, at 236. That paper initially warned that “[t]he precedent

may lead hereafter to serious embarrassments between the judicial

and legislative departments,” id., but later conceded that the

question had been settled “in conformity with the progressive spirit

of the times.” New York Tribune (April 23, 1856), quoted in 2

WARREN, at 236.

19

Film Prods., 511 U.S. 244, 265-67 (1994). A final

judgment at law (such as an award of damages)

reflects the court’s determination of the law and facts

at a specific point in time. As the Court held in

Plaut, a legislative decision that notwithstanding that

judgment, the court should now reopen the case,

cannot be understood as anything other than a

legislative determination that the court was wrong

as to the law or the facts at the specific time of the

decision. See Plaut, 514 U.S. at 227-28. That amounts

to a congressional effort either to exercise judicial

review or to impose a different judgment, both of

which clearly usurp the judicial power to decide cases.

That is not so where Congress seeks to have a

different law applied to decide the future scope and

duration of an injunction. To be justified, continuing

injunctive relief requires the court to be correct as

to the law and facts not just at the time of the initial

judgment but at all future points in time. See, e.g.,

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

656-57 (1* Cir. 1997) (“The legitimacy of prospective

equitable relief rests upon the presumed persistence

of the conditions that originally justified the relief.”),

cert. denied, 118 S. Ct. 2366, reh’g denied, 119 S. Ct.

14 (1998). No court ever purports to make a final

determination as to the future state of the law and

facts. Accordingly, Congress does not question the

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

388 (1992) (“A consent decree must of course be modified if, as it

later turns out, one or more of the obligations [it imposes] has

become impermissible under federal law.”); System Federation No.

91, Ry. Empl. Dept. v. Wright, 364 U.S. 642, 647 (1961) (“There is

also no dispute but that a sound judicial discretion may call for

modification of the terms of an injunctive decree if the circum-

stances, whether of law or fact, obtaining at the time of its issuance

have changed, or new ones have since arisen.”); id. at 652 (“The

parties have no power to require of the court continuing enforce-

ment of rights the statute no longer gives.”).

20

initial determination of law and facts (let alone violate

any principle of separation of powers) by chansing

the law and thereby altering the prospective effect

of an injunction.

Wheeling Bridge applied this logic and held that

even though the legislation at issue targeted and

overturned a single injunction, Congress did not

intrude on the courts’ Article III powers. Plaut

reaffirmed that even such a narrowly targeted law

is constitutionally valid.

In sum, the Court in Wheeling Bridge upheld an

Act of Congress that displaced an injunction issued

by this Court, even though the legislation addressed

that bridge and only that bridge. The automatic stay

provision, by contrast, does not single out one existing

decree and does not overturn any decree, but rather

imposes temporary limits on prospective relief.

Invalidating the automatic stay provision would

require overruling Wheeling Bridge. Indeed, such

a ruling also would doom the provisions of the

Telecommunications Act of 1996 that expressly

terminated the prospective effect of the AT&T, GTE

and McCew injunctions.’ However, there is no need

to overrule Wheeling Bridge or cast doubt on the

Telecommunications Act. This Court’s precedents

make clear that Congress does not run afoul of the

separation of powers by changing the law and altering

the prospective effect of injunctive relief.

No aspect of the automatic stay provision runs

afoul of this Court’s decision in United States v. Klein,

® See Pub. L. No. 104-104, Tit. VI, § 601(a), 110 Stat. 143 (1996)

(“Any conduct or activity that was, before the date of enactment

of this Act, subject to any restriction or obligation imposed by the

AT&T [or GTE or McCaw) Consent Decree{s]} shall, on and after

such date, be subject to the restrictions and obligations imposed

{by the 1996 Act) and shall not be subject to the restrictions and

the obligations imposed by such Consent Decree{s].”).

21

80 U.S. 128 (1871). Although there has been some-

doubt as to the exact contours of the holding in Klein,

that issue need not trouble the Court here. As this

Court explained in Plaut: “Whatever the precise

scope of Klein, however, later decisions have made

clear that its prohibition does not take hold when

Congress ‘amend(s] applicable law.’” 514 U.S. at 218

(quoting Robertson v. Seattle Audubon Soc., 503 U.S.

429, 441 (1992)). Klein poses no obstacle here because

the PLRA clearly “amends applicable law.” Indeed,

the raison d’etre of the automatic stay is to ensure

that decrees affecting prison conditions—including

pre-existing decrees—reflect the changes in the law

that the PLRA worked. It is no coincidence that the

Seventh Circuit’s analysis discovering a Klein

problem, see U.S. Pet. App. at 20a, omitted any

reference to this critical passage from Plaut.

This passage underscores the critical but narrow

limitation Klein places on Congress. The statute at

issue in Klein reflected Congress’ concern that the

President was abusing the pardon power by granting

clemency and restoring property to individuals who

had provided material aid to the Confederacy.

Congress lacked any power to place direct legislative

limits on the President’s exercise of the pardon.

Accordingly, Congress attempted to achieve its goal

indirectly by barring the introduction of the fact of

pardons in litigation concerning property rights. The

Court had little difficulty invalidating this

congressional attempt to circumvent limitations on

its ability to address the pardon power through

legislation. The Court would not permit Congress

to provide the rule of decision (by limiting the

introduction of critical evidence) where Congress could

not provide the rule of law through legislation. But

nothing in Klein purports to limit Congress’ ability

to affect pending cases where Congress has the

22

authority to, and does in fact, change the law.

Indeed, Klein distinguished Wheeling Bridge on this

very ground. See 80 U.S. at 146-47. That is what

this Court recognized in Plaut and that is all that

the PLRA and the automatic stay accomplish.

The automatic stay provision is clearly

constitutional under these principles. The automatic

stay affects only the prospective effect of injunctions,

and so falls clearly on the constitutional side of the

Plaut-Wheeling Bridge divide. Moreover, the PLRA

clearly changed the underlying law concerning the

entry of injunctive relief affecting prison conditions,

rendering Klein inapposite.

C. Nothing in the Penumbra of Article III

Suggests that the Automatic Stay Provision

Violates the Separation of Powers

The automatic stay provision complies with this

Court’s precedents. Nonetheless, the court below

found that the automatic stay violated principles never

articulated by this Court. This Court should reject

this effort to impose restrictions on Congress not

required by the Constitution and its system of

separation of powers.

In particular, the court below found the automatic

stay unconstitutional because it amounted to “a self-

executing legislative determination that a specific

decree of a federal court .. must be set aside at least

for a period of time, no matter what the equities, no

matter what the urgency of keeping it in place.” U.S.

Pet. App. at 19a. This principle has no support in

the Constitution or this Court’s cases. Indeed, if the

“self-executing” nature of the stay dooms it, then

other commonly-accepted provisions of federal law

are doomed as well.

23

1. The Self-Executing Nature of the

Automatic Stay Does Not Violate the

Separation of Powers

The self-executing character of the automatic stay

does not transform it from a permissible regulation

of procedure into a forbidden legislative suspension

of a judgment. Plaut and Wheeling Bridge make clear

that Congress does not violate the separation of

powers by changing the law with the intent and effect

of altering the validity of prospective relief. Congress

can hardly run afoul of such principles if it connects

the dots and makes the relationship between the

change in the law and the effect on injunctions clear.

That is all Congress did here. Congress changed the

law, acknowledged that the change would affect

pending injunctions, established procedures to ensure

timely resolution of the continuing validity of

prospective relief entered under the prior law, and

set time lines limiting the effectiveness of decrees

not reassessed under the new law. By making explicit

that the change in the law affects pending injunctions

and giving courts an opportunity to keep them in

effect if they are justified under the new legal

standard, Congress does not somehow transform

normal prospective legislation into a separation of

powers violation.’®

’ Congress’ termination of the prospective effect of the consent

decrees then in effect against AT&T, GTE, and McCaw even more

explicitly foreclosed the possibility that the decrees could have

continuing effect. See Pub. L. No. 104-104, Tit. VI, § 601(a), 110 Stat.

143 (1996) (“Any conduct or activity that was, before the date of

enactment of this Act, subject to any restriction or obligation

imposed by the [decrees] shall, on and after such date, be subject

to the restrictions and obligations imposed [by the 1996 Act) and

shall not be subject to the restrictions and the obligations imposed

by such Consent Decree[s].”) (ermphasis added). Congress could have

(continued...)

24

Instead of enacting the PLRA, Congress could have

followed the model of the law upheld in Wheeling

Bridge and simply declared prison operations not

found to have violated a federal right to be lawful.

Alternatively, Congress could have followed the model

of the Telecommunications Act and changed the law

and declared that state and local prisons “shall not

be subject to the restrictions and obligations imposed

by” decrees not entered in accordance with the new

laws. Either of these laws would be much closer to

“a self-executing legislative determination that a

specific decree of a federal court .. must be set aside”

than either the PLRA’s limitations on prospective

relief as a whole or the automatic stay in particular.

Instead of providing the court with 30 or 90 days to

reassess the injunction and keep it in place if

justified, these laws would immediately free a prison

system from some or all of the prior decree’s

requirements without any judicial intervention.

Rather than enacting laws of this sort, Congress

took the much more moderate approach of directing

the courts to apply the new standards. It reinforced

this directive with the automatic stay, but only after

the courts have had a reasonable time to rule. Since

these other truly self-executing forms of the PLRA

would not run afoul of Plaut, the much less self-

executing version Congress actually enacted, including

the automatic stay, does not do so either.

’ (...continued)

simply set out the new standards of the 1996 Act and left it to the

courts to sort out the effect on existing consent decrees. The Courts

of Appeals have had little difficulty concluding that, even though

Congress instead chose to make its mandate clear by “connecting

the dots,” it did not thereby violate the separation of powers. See

BellSouth Corp. v. F.C.C., 162 F.3d 678, 692-93 (D.C. Cir. 1998), cert.

denied, 119 S.Ct. 1495 (1999); SBC Commun., Inc. v. F.C.C., 154 F.3d

226, 245-46 (5 Cir. 1998), cert. denied, 119 S.Ct. 889 (1999).

25

In sum, nothing in this Court’s precedents limits

Congress’ ability to alter the prospective effect of

pending injunctions when it simultaneously changes

the law prospectively. To the contrary, this Court

has recognized that this authority over pending

injunctions is a necessary corollary of Congress’

extensive power to legislate prospectively. Indeed,

this Court has upheld this congressional power in

circumstances that raised a far greater appearance

of congressional meddling in the province of the

judiciary. In Wheeling Bridge, this Court upheld

Congress’ effort to target a single injunction of this

Court (not a lower court) and supersede it not with

a new general standard, but with a legislative

declaration limited to a single bridge. The PLRA,

by contrast, changes the legal standard for granting

injunctive relief in a whole class of cases without

directing the outcome of any case. The PLRA raises

far less difficulty under general principles than

Wheeling Bridge and complies fully with the limits

this Court laid down in Plaut and Klein.

2. Federal Law Features Other Self-

Executing Provisions with Far More

Demanding Time Limits

If (contrary to fact) the automatic stay violated

the separation of powers because it is in some sense

“self-executing,” then other accepted provisions of

federal law likewise would violate the Constitution.

In particular, the self-executing time limits on TROs

imposed by Fed. R. Civ. P. 65(b) and the Norris-

LaGuardia Act, 29 U.S.C. § 107, place much more

stringent time limits on prospective relief. Like the

automatic stay, they suspend operation of a judicial

order if additional findings are not made in a

specified period of time.

26

Rule 65(b) allows a court to grant a TRO ex parte

under certain circumstances. Under the rule,

however, if the court takes no further action, the

order expires in ten days. The court may extend the

TRO, but only once, and only for an additional ten

days. After that, if it wishes to maintain the effect

of the order, it must enter a preliminary injunction,

which requires the court to apply different, more

demanding standards.

The Norris-LaGuardia Act’s TRO provision operates

the same way, but with an even more stringent time

limit: five days with no extensions available. After

five days, as with ordinary TROs, the court’s only

option is a preliminary injunction.” The Act also

places special limits on preliminary injunctions in

labor disputes. A court may not impose such relief

until it has held a hearing, heard witness testimony

in open court, and made detailed findings of fact.

See 29 U.S.C. § 107(a)-(e).

The PLRA’s automatic stay operates in similar

fashion, although it provides courts with more time

to act. Indeed, the specific problems the court of

appeals assigned to the PLRA’s automatic stay seem

more likely to arise as a result of time limits on

TROs. The court expressed concern that a defendant

who wishes to obtain the benefit of an automatic stay

need only stall discovery requests for 30 to 90 days

10 In a 1942 decision not cited by the court below, the Seventh

Circuit stated in dictum and without citation to authority that a

district court may extend a TRO beyond the five-day limit set by

§ 107. Toledo, P. & W. R.R. v. Brotherhood of Railroad Trainmen,

Enterprise Lodge No. 27, 132 F.2d 265, 267 (7 Cir. 1942), rev’d on

other grounds, 321 U.S. 50 (1944). This unsupported dictum has

not been followed, and modern cases adhere to the plain terms of

§ 107. See, e.g., In re Dist. No. 1-Pacific Coast Dist., Marine

Engineers’ Beneficial Ass’n, 723 F.2d 70, 75 & n.3 (D.C. Cir. 1983);

Celotex Corp. v. Oil, Chemical and Atomic Workers Int’l Union, 516

F.2d 242, 248 (3d Cir. 1975).

27

after making its motion to terminate. However,

shorter time limits on TROs create an even greater

risk. Nonetheless, this prospect troubles courts not

at all because they have ample tools to deal with

recalcitrant defendants. Nothing in the PLRA limits

these tools.

The court of appeals expressed a related concern

that a court might need more than 30 or even 90 days

to resolve all the questions relevant to a motion to

terminate." This also fails to distinguish the TRO

provisions. Undoubtedly, many issues relevant to

the question whether to grant a preliminary injunction

are difficult and time-consuming. Although a court

might well desire more than the five- to 20-day life

span of a TRO, it must make a determination within

the deadlines.”

1) The relative adequacy of five, 20, 30, 90, or 180 days seems

like a more appropriate consideration for a Due Process analysis

than for a separation of powers inquiry. See U.S. Pet. App. at 27a-

28a (Easterbrook, J., dissenting). It may be that a five-day deadline

is justified in the context of a TRO, but not for an automatic stay

because the burdens on the party enjoined vary depending on the

thoroughness of the initial proceeding imposing the injunction.

But such balancing has no place in separation of powers analysis.

Moreover, if five days is not sufficient, the result should be the

same in state or federal court. At the extremes—requiring a stay

absent a finding made in fifteen minutes or providing that

judgments at law do not become final for twenty years— time limits

may implicate the separation of powers, although even these

extreme hypotheticals may be best analyzed under the Due Process

Clauses. But absent such extreme hypotheticals, time limits

properly belong in the due process calculus (which provides an

antidote against absurd results), not in the separation of powers

= Indeed, in the context of prison litigation, the question

whether to grant preliminary injunctive relief in the first instance

likely will prove more complex and time-consuming than the

question whether to retain a previously granted injunction, with

which the court generally will be familiar. Nonetheless, Rule 65

(continued...)

The time pressures governing labor dispute TROs

are even more demanding, and section 107 requires

the court to make specific findings before imposing

a preliminary injunction, just as the PLRA requires

specific findings in order to issue or maintain a prison

conditions decree. There is no reason to believe that

the inquiry demanded by the Norris-LaGuardia Act

is any easier for the court to conduct than the one

mandated by the PLRA. Nonetheless, the PLRA gives

the court 1800% of the time afforded by the Norris-

LaGuardia Act. Judicial experience demonstrates that

courts can meet the deadlines imposed by Rule 65(b)

and the Norris-LaGuardia Act. Time will prove that

the PLRA’s burdens are substantially less onerous.

They certainly are no less constitutional.

The court of appeals argued that the TRO

provisions differ from the PLRA’s automatic stay in

two respects: 1) the TRO provisions respond to the

particular problems of ex parte proceedings; and 2)

district courts retain the ability to enter a preliminary

injunction that preserves the status quo beyond the

time allowed by the TROs. Both arguments miss the

mark. The court’s first point is not true as to the

Norris-LaGuardia Act’s time limit, and the second

point betrays a misunderstanding of the PLRA.

First, section 107’s time limit applies to all labor-

dispute TROs, not only those entered ex parte.

Second, the PLRA’s automatic stay no more prevents

the court from entering a preliminary injunction

imposing effectively the same relief as the suspended

decree than Rule 65 or the Norris-LaGuardia Act

prevents the court from entering a preliminary

injunction imposing the same relief as the TRO. As

epee ge: t the liminary injunction

gives the court just 20 days to gran pre u .

while the PLRA provides a 90-day window to decide whether the

retain the injunction.

noted earlier, nothing in the automatic stay provision

prevents a court from entering a preliminary

injunction to address a violation that is also subject

to a stayed decree. To the contrary, the PLRA

practically invites this course of action.

D. The Automatic Stay Does Not Violate the

Separation of Powers Simply Because it

Makes it More Difficult for Federal Courts

to Supervise State and Local Prisons

In the end, there is nothing in Article III or the

separation of powers that prohibits Congress from

changing the law in ways that require the termination

of existing decrees or from requiring the courts to

address the ramifications of that change promptly.

Likewise, nothing prevents Congress from asking the

courts to ensure that injunctive relief remains justified

after the passage of time. If there are any limits on

the extent to which Congress may accomplish these

objectives, the PLRA does not violate them. Unlike

the provision upheld in Wheeling Bridge, the PLRA

affects an entire class of orders. Unlike the five-day

time limit of the Norris-Laguardia Act, the PLRA gives

courts 90 days to consider a motion to terminate.

This is not to say that the PLRA makes it

convenient for federal courts to enter injunctive orders

governing state and local prisons. To do so, the court

must go out of its way to ensure that the order is

narrowly tailored to address an actual violation of

federal law. The court must then give priority in its

docket over time to ensuring that the injunction

remains fully justified. This is as Congress intended,

and as it should be. Federal court supervision of state

and local prisons puts unique strains on our system

of federalism. The role of federal courts in overseeing

these institutions is properly limited. The PLRA

30

balances the benefits of federal court intervention

to protect federal rights with the costs of federal

intervention in an area of traditional state concern.

Nothing in Article III or the separation of powers

prevents Congress from striking that balance.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

Paul D. Clement Daniel J. Popeo

Counsel of Record R. Shawn Gunnarson

Jeffrey S. Bucholtz Washington Legal Foundation

King & Spalding 2009 Massachusetts Ave., N.W.

1730 Penn. Ave., N.W. Washington, D.C. 20036

Washington, D.C. 20006 (202) 588-0302

(202) 737-0500

Lee Liberman Otis

Senate Judiciary Committee

323 Dirksen Senate Office Bldg

Washington, D.C. 20510

(202) 224-6098

Counsel for Amici Curiae

C/

February 3, 2000