Amicus Curiae Brief — Miller v. French

SUPERINTENDENT OF THE PENDLETON

CORRECTIONAL FACcItirty et al.,

vy. Petitioners,

RICHARD A. FRENCH et al.,

Respondents.

UNITED STATES OF AMERICA,

y. Petitioner,

RICHARD A. FRENCH et al.,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF THE NATIONAL GOVERNORS’

ASSOCIATION, NATIONAL LEAGUE OF CITIES,

COUNCIL OF STATE GOVERNMENTS, U.S.

CONFERENCE OF MAYORS, NATIONAL

ASSOCIATION OF COUNTIES, INTERNATIONAL

MUNICIPAL LAWYERS ASSOCIATION, AND

INTERNATIONAL CITY/COUNTY MANAGEMENT

ASSOCIATION AS AMICI CURIAE SUPPORTING

PETITIONERS SUPERINTENDENT OF THE

PENDLETON CORRECTIONAL FACILITY ET AL.

RICHARD RUDA *

Chief Counsel

JAMES I. CROWLEY

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

Suite 345

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae

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QUESTIONS PRESENTED

1. Whether a district court retains equitable authority

to suspend the automatic stay provision of the Prison Liti-

gation Reform Act.

2. Whether the automatic stay provision of the Prison

Litigation Reform Act violates separation of powers prin-

ciples.

(i)

TABLE OF CONTENTS

| Page

QUESTIONS PRESENTED _ i

TABLE OF AUTHORITIES iv

INTEREST OF THE AMICI CURIAE ............. —ae “&

| SUMMARY OF ARGUMENT .............. 2

| ARGUMENT ........... a 5

PLRA’S AUTOMATIC STAY PROVISION, COR-

RECTLY CONSTRUED BY THE COURT OF

APPEALS, DOES NOT VIOLATE SEPARATION

OF POWERS PRINCIPLES ..... pematgntnnssmeseusntesescts 5

A. PLRA’s Automatic Stay Provision Precludes A

Federal Court From Invoking Traditional Equi-

table Standards To Maintain In Effect An

Existing Decree Which Is Unsupported By The

Necessary Findings ......................... 9

B. The Automatic Stay Provision Does Not Violate

Separation Of Powers Principles ...................... 19

ES a 29

(iii)

iv

TABLE OF AUTHORITIES

Cases Page

Adair v. United States, 208 U.S. 161 (1908) ......... 28

Agostini v. Felton, 117 S.Ct. 1997 (1997) —........... 27-28

Anderson v. Yungkau, 329 U.S. 482 (1947) ..2, 3, 12, 12-18

Andrus v. Glover Consir. Co., 446 U.S. 608

(1980) nie 13

Bankers Life & Cas. Co. v. Holland, 346 U.S. 379

ee 16

Bell v. Wolfish, 441 U.S. 520 (1979) _. - 5

Board of Ed. of Oklahoma City v . Dowell, 498

U.S. 237 (1991) 7, 26

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

Carson v. American Brands, Inc., 450 U.S. 79

| 15-16

Coppage v. Kansas, 236 U.S. 1 (1915) ............... 23

Cary v. Curtis, 44 U.S. (3 How.) 236 (1845)... 20

Dayton Bd. of Ed. v. Brinkman, 433 U.S. 406

(1977) .. - 7

Dougan v. Singletary, 129 F.3d 1424 “(11th Cir.

PS ee Soe he 14

Escoe v. Zerbst, 295 U.S. 490 (1985) 12

Ex parte Fahey, 322 U.S. 258 (1947) 16

Ex parte Young, 209 U.S. 123 (1908) —......0......... 21

Gavin v. Branstad, 122 F.3d 1081 (8th Cir. 1997) .. 14

Hadiz v. Johnson, 144 F.3d 926 (6th Cir. 1998)... 9, 15

Hadiz v. Johnson, 933 F. Supp. 1360 (E.D. Mich.

1996) .. 15

Hadiz v. Johnson, 933 F. Supp. 1362 (W.D. Mich.

1996) 15

Hecht Co. v. Bowles, 321 U.S. 321 (1944) .. 10

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

649 (ist Cir. 1997) . 14

Kline v. Burke Const. Co., 260 U.S. 226 (1922) ..20-21, 23

Lauf v. E.G. Shinner & Co., 303 U.S. 323 (1938) ..3, 20, 23

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

Livingston v. Story, 34 U.S. (9 Pet.) 632 (1835)... 10

Lockerty v. Phillips, 319 U.S. 182 (1943) ............ .. 20, 21

Milliken v. Bradley, 418 U.S. 717 (1974) ............4, 7, 8, 26

Milliken v. Bradley, 483 U.S. 267 (1977) —............. 7, 26

v

TABLE OF AUTHORITIES—Continued

Page

Missouri v. Jenkins, 515 U.S. 70 (1995) ................. 7

Pennsylvania v. Wheeling & Belmont Bridge Co.,

59 U.S. (18 How.) 421 (1855) 200 27

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

EEE eS a Se ee A, 19, 25, 27

Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996)... 14

Porter v. Warner Holding Co., 327 U.S. 395

ae - 10

Procunier v. Martinez, 416 U. Ss. 396 (1974) a 5

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

(1992) 27

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

ERR ed 28

Ruiz v. Estelle, 666 F.2d 854 (5th Cir. 1982) ........ 6

Ruiz v. Johnson, 178 F.3d 385 (5th Cir. 1999)... 9, 15

Sibbach v. Wilson, 312 U.S. 1 (1941) —..............0..... 10

Smith v. Stevens, 77 U.S. (10 Wall.) 321 (1870).. 13

Swann v. Charlotte-Mecklenburg Bd. of Ed., 402

U.S. 1 (1974) 7

Toussaint v. McCarthy, 597 F. pol 1388 (N.D.

ree sila 6

Turner v. Safley, 482 U.S. 78 (1987) . 1

Truaz v. Corrigan, 257 U.S. 312 (1912) -............... 23

United States v. Duell, 172 U.S. 576 (1899) ......... 16

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

(1871) 4,19

United States v. Smith, 499 US. 160 (1991) ........ 13

United States v. Swift & Co., 286 U.S. 106 (1932).. 28

Virginian Ry. Co. v. System Federation, 300 U.S.

515 (1937) 22

Whitehouse v. Illinois Cent. R.R. Co., 349 U.S. 366

Oe 16

Will v. United States, 889 U.S. 90 (1967) an 16

Yakus v. United States, 321 US. 414 (1944)........ passim

Constitutional Provisions & Statutes

Act of Mar. 2, 1973, § 5, 1 Stat. 335 —........................ 21

Emergency Price Control Act of 1942, 56 Stat. 23.. 21

Fed. R. Civ. P. 37 18

vi

TABLE OF AUTHORITIES—Continued

Page

RR rr eae eee 24

Prison Litigation Reform Act of 1995, Pub. L. No.

104-134, 110 Stat. 1821-26—1321-77 (1996)...... 1,7

Pub. L. No. 104-134, Title I, §101(a), 110 Stat.

I Ee se eee a 14

BETTE reece 8

18 U.S.C. § 3626 (a) (2) ........................... 17

RE LSAT OC 8

I es I ici tls 8

RR ee 8, 13, 17, 25

ETT SI ee RT 1

LO ee 8-9

fae passim

18 U.S.C. § 3626 (e) (2) (B) 2... ..ececccceceeeeeeeeeeeeeeees 17, 25, 27

Be Ce ID bccicerniinnintetentrianiaiisisill passim

PR SS eee passim

18 U.S.C. § 3626(f) (1) ~..............0...-.0. =“ . #

28 U.S.C. § 1292(a) (1) 9, 15-16

28 U.S.C. § 1841 21

28 U.S.C. § 1342 ............. ; 21

RS eee 21

EES eres ae 8, 21,24

SEE Te ea 4, 23, 24

U.S. Const. art. ITI, § 1 8, 20, 23-24, 24

Other Authorities

The American Heritage Dictionary of the English

ID Ge cctibicertncinctetsniiniasstiiaidiiiiinntians 12

Black’s Law Dictionary (6th ed. 1990) ................ .2,11-12

141 Cong. Rec. 814413 (daily ed. Sept. 27, 1995) .... 7

141 Cong. Rec. 814414 (daily ed. Sept. 27, 1995) .... 6

141 Cong. Rec. $14418 (daily ed. Sept. 27, 1995) _... 7

141 Cong. Rec. 814626 (daily ed. Sept. 29, 1995) _... 14

143 Cong. Rec. $12269 (daily ed. Nov. 9, 1997) ....... 14-15

Richard H. Fallon et al., Hart and Wechsler’s The

Federal Courts And The Federal System (4th

ed. 1996) ... i ... 21,23

H.R. Rep. No. 104-21 (1995) 7, 14, 25, 26

Moore’s Federal Practice (1999) 11,18

vil

TABLE OF AUTHORITIES—Continued

Editorial, Criminal Oversight, Wall St. J., June

19, 1996 96 EROS HOS - CO

David Schoenbrod & Ross Sandler, Rule of Law:

In New York City, the Jails Still Belong to the

Judges, Wall St. J., Sept. 10, 1997 —.....................

Webster's New Collegiate Dictionary (1975) ..........

Charles A. Wright & Arthur Miller, Federal Prac-

tice & Procedure (1982) . -

INTEREST OF THE AMICI CURIAE

Amici are organizations whose members include state,

county, and municipal governments and officials through-

out the United States.1 Amici have a compelling interest

in legal issues that affect state and local governments.

The administration of state prisons and local jails is a

complex and difficult undertaking. Notwithstanding the

Court’s admonition that the lower federal courts are not

to become “the primary arbiters of what constitutes the

best solution to every administrative problem,” Turner v.

Safley, 482 U.S. 78, 89 (1987), federal courts have is-

sued broad structural decrees which exceed constitutional

norms and continue in effect long after officials have reme-

died any constitutional violations. See, e.g., Lewis v.

Casey, 518 U.S. 343 (1996).

Congress enacted the Prison Litigation Reform Act of

1995 (PLRA), Pub. L. No. 104-134, 110 Stat. 1321-

66-1321-77 (1996), to prevent protracted federal court

interference with state prison administration. The provi-

sion at issue here, the automatic stay, is an essential part

of PLRA as it directs a district court to rule on termina-

tion and modification motions within a reasonable time.

See 18 U.S.C. § 3626(e). The United States’ view that

a federal court retains inherent equitable authority to stay

the automatic stay finds no support in the statute’s lan-

guage and would nullify its purpose. And the court of

appeals’ view that the provision violates separation of

powers principles is contradicted by the text of Article

III and two centuries of congressional control over the

jurisdiction of the lower federal courts.

1 Pursuant to Rule 37.3 of the Rules of this Court, the parties

have consented to the filing of this brief amicus curiae. Their

letters of consent have been filed with the Clerk of the Court.

Pursuant to Rule 37.6, amici state that this brief was not authored

in whole or in part by counsel for a party, and no person or entity,

other than amici or their members, made a monetary contribution

to the preparation or submission of this brief.

2

Because of the importance of these issues to amici and

their members, this brief is submitted to assist the Court

in its resolution of the case.

SUMMARY OF ARGUMENT

A. The court of appeals correctly construed PLRA’s

automatic stay provision as “constrain[ing] the authority

of the district courts to impose and sustain prospective

relief.” Pet. App. 25a.2 The statute’s text, structure, and

legislative history provide conclusive evidence that Con-

gress intended to foreclose a federal court’s ability to stay

the operation of the automatic stay beyond a 60-day post-

ponement. Under PLRA federal courts cannot maintain

an injunctive order in effect in the absence of written

findings which establish the legal basis for continuing the

decree.

The text of § 3626(e)(2) states that “[a]ny motion to

modify or terminate prospective relief . . . shall operate as

a stay during the period . . . beginning on the 30th day

after such motion is filed . . . and . . . ending on the date

the court enters a final order ruling on the motion.” 18

U.S.C. § 3626(e)(2) (emphasis added). It is apparent

that Congress intended the term “shall” to be given its

meaning in common usage. “In common or ordinary par-

lance, and in its ordinary signification, the term ‘shall’ is

a word of command, and one which has always or which

must be given a compulsory meaning; as denoting obliga-

tion.” Black’s Law Dictionary 1375 (6th ed. 1990). See

also Anderson v. Yungkau, 329 U.S. 482, 485 (1947).

The fact that Congress characterized the stay as “auto-

matic,” 18 U.S.C. §§ 3626(e)(2). (3), (4), reinforces

the conclusion that the stay is mandatory.

2 All references to “Pet. App.” in this brief are to the appendix

to the petition for certiorari filed by the Superintendent of the

Pendleton Correctional Facility et al. (No. 99-224).

The mandatory nature of the stay is also confirmed by

the structure of the PLRA. Elsewhere in subsection (e),

Congress expressly provided that a “court may postpone

the effective date of [the] automatic stay . . . for not more

than 60 days for good cause.” Id. § 3626(e)(3). This

express grant of limited discretion counsels against im-

plying any greater exemption from the mandatory opera-

tion of the automatic stay and also demonstrates Congress’

awareness, when enacting the PLRA, of the difference

between “shall” and “may.” See Anderson, 329 U.S. at

485.

Contrary to the views of the United States, Congress’

authorization of an interlocutory appeal of orders staying

the stay, see id. § 3626(e)(4), does not “impl[y] that dis-

trict courts have authority to issue such orders.” U.S.

Pet. 16. As originally enacted, PLRA contained no pro-

vision for interlocutory review. The provision was added

in response to several lower court decisions holding the

automatic stay unconstitutional, to ensure that such deci-

sions would be immediately appealable notwithstanding

their interlocutory nature.

B. The automatic stay provision does not violate sepa-

ration of powers principles. The Constitution expressly

gives Congress the authority to regulate the equitable

jurisdiction of the lower federal courts. See U.S. Const.

art. III, § 1. “There can be no question of the power of

Congress . . . to define and limit the jurisdiction of the

inferior courts of the United States.” Lauf v. E. G.

Shinner & Co., Inc., 303 U.S. 323, 330 (1938).

Congress has exercised its power to limit the equity

jurisdiction of the lower federal courts in a number of

ways. It has prohibited the ccurts from exercising equi-

table jurisdiction over entire categories of cases. See 28

U.S.C. § 2283 (Anti-Injunction Act). It has limited the

authority of the federal district courts to issue interlocu-

4

tory injunctions. See Yakus v. United States, 321 US.

414 (1944). Finally, Congress can impose time limits

on the issuance of equitable decrees and require federal

courts to make findings as a prerequisite to the issuance

of an injunction, as it did in the Norris-LaGuardia Act.

See 29 U.S.C. § 107.

Nor does the automatic stay provision violate the Con-

stitution because, as the court of appeals put it, Article

III “ ‘gives the Federal Judiciary the power, not merely to

rule on cases, but to decide them, subject to review only

by superior courts in the Article III hierarchy.’” Pet.

App. 29a (citation omitted). The automatic stay provi-

sion does not intrude on the power of federal courts to

decide a case. Indeed, the whole point of § 3626(e) (2)

is to encourage the court to decide the case.

That sub-section (e) directs that an order be suspended

in the absence of the required findings within 90 days—

subject to later reimposition if those findings are made—

does not render it an “unconstitutional intrusion on the

power of the courts to adjudicate cases.” Pet. App. 29a.

The “federal remedial power may be exercised ‘only on

the basis of a constitutional violation.’” Milliken v. Brad-

ley, 418 U.S. 717, 738 (1974) (citation omitted). Con-

gress, like the courts, is empowered to weigh the equities

and conclude that the continuance of iriunctions that are

unsupported by the constitutionally required findings is

contrary to the public interest. Requiring suspension of a

decree when a court fails to make the constitutionally re-

quired findings is not a “usurpation of judicial functions”

in violation of Article III. Yakus, 321 U.S. at 442.

Nor does the automatic stay unconstitutionally prescribe

a rule of decision in a pending case in violation of United

States v. Klein, 80 U.S. (13 Wall.) 128 (1871). “What-

ever the precise scope of Klein, . . . its prohibition does

not take hold when Congress amend[s] applicable law.”

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218 (1995)

5

(citation and internal quotation omitted). Indeed, it is

well established that when Congress changes the appli-

cable law, a court of equity errs when it refuses to modify

a continuing injunction. If amending the substantive law

applicable to a continuing injunction does not violate the

separation of powers, Congress surely can adopt pro-

cedures to protect the rights of parties who are entitled

to the benefit of the new law. Because administrators and

the public would otherwise have no adequate remedy

where a federal court continues an invalid injunction,

Article III, Section 1, empowers Congress to protect the

public interest by requiring a federal court either to rule

or stay the decree.

ARGUMENT

PLRA’S AUTOMATIC STAY PROVISION, CORRECTLY

CONSTRUED BY THE COURT OF APPEALS, DOES

NOT VIOLATE SEPARATION OF POWERS PRIN-

CIPLES

As the Court recognized more than twenty years ago,

courts have, in the name of the Constitution, be-

come increasingly enmeshed in the minutiae of prison

operations. Judges, . . . no less than others in our

society, have a natural tendency to believe that their

individual solutions to often intractable problems are

better and more workable than those of the persons

who are actually charged with and trained in the run-

ning of the particular institution under examination.

Bell v. Wolfish, 441 U.S. 520, 562 (1979). See also

Procunier v. Martinez, 416 U.S. 396, 405 (1974) (“[T]he

problems of prisons in America are complex and intracta-

ble, and . . . are not readily susceptible of resolution by

decree. . . . [C]ourts are ill equipped to deal with the

increasingly urgent problems of prison administration and

reform.”); Lewis v. Casey, 518 U.S. 343, 362 (1996).

Notwithstanding the Court’s admonitions in Bell and

Procunier, some federal courts have continued to assert

6

broad authority to micromanage the operations of state

and local prisons and jails. See Lewis, 518 U.S. at 346-

48, 355 n.5 (discussing district court order); Ruiz v.

Estelle, 666 F.2d 854, 862-73 (Sth Cir. 1982) (reprint-

ing district court’s injunction against Texas Department of

Corrections); Toussaint v. McCarthy, 597 F. Supp. 1388,

1422-26 (N.D. Cal. 1984) (injunction applicable to Cali-

fornia’s Folsum & San Quentin prisons). In some in-

stances, federal courts have ordered relief which has re-

sulted in serious harm to the: public. See 141 Cong. Rec.

S 14414 (daily ed. Sept. 27, 1995) (statement of Sen.

Dole) (in Philadelphia, “a court-ordered prison cap has

put thousands of violent criminals back on the city’s

streets” and “turn[ed] the town into a major drug smug-

gling port”) (internal quotation and citation omitted).‘

And several federal courts have ordered broad, far-

reaching injunctive relief, disregarding the limitations on

the equitable powers of federal courts established by this

Court’s jurisprudence. See, e.g., Lewis, 518 U.S. at 347-

48; 357-60.

3 See also David Schoenbrod & Ross Sandler, Rule of Law: In

New York City, the Jails Still Belong to the Judges, Wall St. J.,

Sept. 10, 1997, at A23, available in 1997 WL-WSJ 14165674 (de-

scribing court order governing New York City’s jails as “a hodge-

podge of serious remedies mixed with the wishes of those at the

negotiating table: Only licensed barbers are allowed to cut hair,

coffee already sugared may never be served at meals. Boraxo

should be used to clean showers, the court-appointed jail monitor

must be given a city car within one grade of the prison commis-

sioner’s”’).

4 According to the Wall Street Journal, Prof. John Dilulio found

that “67% of those released [because of the Philadelphia order]

failed to appear for trial.” Editorial, Criminal Oversight, Wall

St. J., June 19, 1996, at A18, available in 1996 WL-WSJ 3106141.

In one 18-month period, “9,732 arrestees out on the streets because

[of the order] were arrested on second charges, including 79

murders, 90 rapes, 701 burglaries, 959 robberies, 1,118 assaults,

2,215 drug offenses and 2,748 thefts.” Id.

7

It is axiomatic that “[a] federal remedial power may be

exercised ‘only on the basis of a constitutional violation’

and, ‘[a]s with any equity case, the nature of the viola-

tion determines the scope of the remedy.’” Milliken v.

Bradley, 418 U.S. 717, 738 (1974) (quoting Swann v.

Charlotte-Mecklenburg Bd. of Ed., 402 US. 1, 16

(1971)). Accord Lewis, 518 U.S. at 357 (quoting Mis-

souri v. Jenkins, 515 U.S. 70, 88, 89 (1995)). The

Court has further explained that in cases involving state

institutions, injunctive relief “must take into account the

interests of state and local authorities in managing their

own affairs, consistent with the Constitution.” Missouri

v. Jenkins, 515 U.S. at 98 (quoting Milliken v. Bradley,

433 U.S. 267, 281 (1977)). A corollary of these princi-

ples is that injunctive relief “should be no broader and

last no longer than necessary to remedy the discrete con-

stitutional violation.” Lewis, 518 U.S. at 393 (Thomas,

J., concurring); see also Dayton Bd. of Ed. v. Brinkman,

433 U.S. 406, 420 (1977) (“Once a constitutional viola-

tion is found, a federal court is required to tailor ‘the

scope of the remedy’ to fit ‘the nature and extent of the

constitutional violation.’”) (quoting Swann, 418 U.S. at

744); cf. Board of Ed. of Oklahoma City v. Dowell,

498 U.S. 237, 247 (1991) (“federal supervision of local

school systems was intended as a temporary measure to

remedy past discrimination”).

To “help restore balance to prison conditions litigation

and . . . ensure that Federal court orders are limited to

remedying actual violations of prisoners’ rights,” 141

Cong. Rec. S 14418 (daily ed. Sept. 27, 1995) (state-

ment of Sen. Hatch), Congress enacted the Prison Litiga-

tion Reform Act of 1995 (PLRA). Pub. L. No. 104-134,

110 Stat. 1321-66 to 1321-77 (1996). See H.R. Rep.

No. 104-21, at 8, 23-26 (1995); 141 Cong. Rec. S 14413

(daily ed. Sept. 27, 1995). PLRA prohibits a federal

court from ordering injunctive relief in prison condition

cases “unless the court finds that such relief is narrowly

drawn, extends no further than necessary to correct the

violation of the Federal right, and is the least intrusive

means necessary to correct the violation of the Federal

right.” 18 U.S.C. § 3626(a)(1).

PLRA also provides for the re-examination of existing

decrees by providing for their termination, at certain

intervais, “upon the motion of any party or intervener.”

Id. § 3626(b)(1). Under Section 3626(b)(2), “a de-

fendant . . . shall be entitled to the immediate termina-

tion of any prospective relief if the relief was approved

or granted in the absence of a finding by the court that

the relief is narrowly drawn, extends no further than

necessary to correct the violation of the Federal right, and

is the least intrusive means necessary to correct the viola-

tion of the Federal right.”

The statute provides, however, that “[p]rospective relief

shall not terminate if the court makes written findings

based on the record that prospective relief remains neces-

sary to correct a current and ongoing violation of the Fed-

eral right, extends no further than necessary to correct the

violation of the Federal right, and that the prospective

relief is narrowly drawn and the least intrusive means to

correct the violation.” Id. § 3626(b)(3). PLRA thus

preserves the authority of the federal courts to continue

an injunction when necessary to remedy actual violations

of federal rights. Moreover, the standard which PLRA

prescribes for ordering or continuing iniunctive relief does

no more than codify the standards which this Court has

articulated in its cases. See, e.g., Lewis, 518 U.S. at 357;

Milliken, 418 U.S. at 717.

PLRA further enacted a procedure for ruling on termi-

nation and modification motions. First, Congress in-

structed that a federal court “shall promptly rule on any

motion to modify or terminate prospective relief” in a

prison condition case and that “[m]andamus shall lie to

remedy any failure to issue a prompt ruling on such a

motion.” 18 U.S.C. §3626(e)(1). Second, Congress

provided that “[a]ny motion to modify or terminate pro-

spective relief made under [§ 3626(b)] shall operate as

a stay during the period . . . beginning on the 30th day

after such motion is filed ... and... ending on the

date the court enters a final order ruling on the motion.”

Id. § 3626(e)(2). Congress authorized a court to “post-

pone the effective date of an automatic stay . . . for not

more than 60 days for good cause,” but excluded “general

congestion of the court’s calendar” as a “permissible” cause.

Id. § 3626(e)(3). Finally, Congress provided for inter-

locutory review under 28 U.S.C. § 1292(a)(1) of “[aJny

order staying, suspending, delaying, or barring the opera-

tion of the automatic stay.” 18 U.S.C. § 3626(e)(4).

A. PLRA’s Automatic Stay Provision Precludes A

Federa! Court From Invoking Traditional Equitable

Standards To Maintain In Effect An Existing Decree

Which Is Unsupported By The Necessary Findings

The court of appeals correctly construed PLRA’s auto-

matic stay provision as “constrain[ing] the authority of

the district courts to impose and sustain prospective re-

lief.” Pet. App. 25a. The United States and the Fifth

and Sixth Circuits are simply wrong in interpreting the

statute as not displacing the authority of the federal courts

“to suspend the automatic stay based on traditional equita-

ble standards.” U.S. Pet. 9 (citing Ruiz v. Johnson, 178

F.3d 385 (5th Cir. 1999) and Hadix v. Johnson, 144

F.3d 925 (6th Cir. 1998)). Moreover, the United States’

reading is not supported by “the principle that a statute

should be construed to avoid a serious constitutional ques-

tion, when such a construction is fairly possible.” /d. at

17 (citations omitted). The text and structure of PLRA

make inescapable the conclusion that Congress int

10

that a decree which is not supported by the proper findings

be suspended after ninety days, subject to the court's

power to reimpose it upon making the required findings.

The United States’ view that federal courts can nonethe-

less stay the automatic stay would subvert Congress’

carefully crafted scheme. And as explained in part B

below, PLRA’s automatic stay provision is constitutional.

The Court has long recognized that the power of

Congress to ordain and establish courts subordinate to the

Supreme Court “carries with it the power to prescribe

and regulate [the] modes of proceedings in such courts.”

Livingston v. Story, 43 US. (9 Pet.) 632, 656 (1835).

More recently the Court has observed that “Congress has

undoubted power to regulate the practice and procedure

of the federal courts.” Sibbach v. Wilson, 312 U.S. 1,

655, 9 (1941). This power necessarily includes the au-

thority to prescribe procedures that the federal courts

must follow in exercising their equitable powers.

To be sure, the Court has explained that “the compre-

hensiveness of [the] equitable jurisdiction is not to be

denied or limited in the absence of a clear and valid legis-

lative command.” Porter v. Warner Holding Co., 327

U.S. 395, 398 (1946); see also Hecht Co. v. Bowles, 321

U.S. 321, 329 (1944). The Court has further stated

that “[u]nless a statute in so many words, or by a neces-

sary and inescapable inference, restricts the court’s juris-

diction in equity, the full scope of that jurisdiction is to

be recognized and applied.” Porter, 327 US. at 398;

see also Hecht Co., 321 U.S. at 330 (“a major depar-

ture” from traditional equity practice “should [not] be

lightly implied”); Brown v. Swann, 35 U.S. (10 Pet.)

497, 503 (1836) (“The great principles of equity should

not be yielded to light inferences, or doubtful construc-

tion.”).

—

status quo beyond the ninety-day period in the absence

of written findings which establish the legal basis for con-

tinuing the decree. “Courts have no power to presume

and remediate harm that has not been established.”

Lewis, 518 U.S. at 360 n.7. And while federal courts

enjoy “inherent authority to issue interim equitable relief

to preserve the status quo” while a case is pending, U.S.

Pet. 12, courts can abuse this power. Cf. Moore’s Fed-

eral Practice 4 65.02 & n.6 (1999) (Fed. R. Civ. P. 65

was adopted to “guard{] against abuse of the injunction

remedy”). It is fully within the authority of Congress

That is exactly what Congress did here. The text of

Section 3626(e)(2) states that “{aJny motion to modify

or terminate prospective relief . . . shall operate as a stay

during the period . . . beginning on the 30th day after

such motion is filed . . . and ending on the date the court

enters a final order ruling on the motion.” 18 U.S.C.

§ 3626(e)(2) (emphasis added). The United States’

contention that this provision “is most naturally read as

permitting” the district court to “preserv{e] the status quo

by suspending the automatic stay,” U.S. Pet. 13, is ir-

reconcilable with the statute.

It is apparent that Congress intended the term “shall” to

be given its meaning in common usage. “In common or

ordinary parlance, and its ordinary signification, the term

‘shall’ is a word of command, and one which has always or

which must be given a compulsory meaning; as denoting

obligation. The word in ordinary usage means ‘must’ and

12

is inconsistent with a concept of discretion.” Black's Law

Dictionary 1375 (6th ed. 1990). See also Anderson v.

Yungkau, 329 U.S. 482, 485 (1947) (quoting Escoe v.

Zerbst, 295 U.S. 490, 493 (1935) (“The word ‘shall’ is

ordinarily ‘{t]he language of command.’”)); Webster's

New Collegiate Dictionary 1064 (1975) (“used in laws,

regulations, or directives to express what is mandatory”);

The American Heritage Dictionary Of The English Lan-

guage 1189 (1979) (“Compulsion, with the force of

must, in statutes”).

Two additional textual indications confirm that sub-

section (e)(2)’s use of the term “shall” does not mean

“may.” First, Congress characterized the stay as “auto-

matic.” See 18 U.S.C. §§ 3626(e)(2), (3), (4). In

common usage, that term expresses Congress’ intent that

the stay be issued as a matter of course and is not discre-

tionary. See The American Heritage Dictionary, at 89-

90 (defining “automatic” as “fa]cting or operating in a

manner essentially independent of external influence or

control”); Webster's New Collegiate Dictionary, at 76

(defining “automatic” as “largely or wholly involuntary”

or “mechanical” ).

Second, Congress provided that a “court may postpone

the effective date of the stay . . . for not more than 60 days

for good cause.” Id. § 3626(e)(3). This limited grant

of discretion excludes construing the statute to allow a

court to further postpone the stay for two reasons. As a

textual matter, it demonstrates that Congress was fully

cognizant of the distinction between the terms “shall” and

“may.” Because Congress used both terms in the same

subsection, each term should be construed in accordance

with its commonly accepted meaning.® See Anderson,

5 While “[t]he court may postpone the effective date of the auto-

matic stay .. . for good cause[,] [n]o postponement shall be per-

13

329 US. at 485 (“{W]Jhen the same Rule uses both ‘may’

and ‘shall,’ the normal inference is that each is used in its

usual sense—the one act being permissive, the other

mandatory.”).

Most significantly, as a limited grant of discretion, sub-

section (e)(3) counsels against implying any greater

exemption from the mandatory operation of the stay. As

the Court has recognized, where Congress grants author-

ity to do a thing a certain way, it implicitly prohibits the

doing of the thing in any other way. See Smith v. Stevens,

77 U.S. (10 Wall.) 321 (1870); United States v. Smith,

499 U.S. 160, 167 (1991) (quoting Andrus v. Glover

Constr. Co., 446 U.S. 608, 616-17 (1980) (“Where Con-

gress explicitly enumerates certain exceptions to a general

prohibition, additional exceptions are not to be implied,

in theabsence of a contrary legislative intent.”) ).

Furthermore, the “good cause” that justifies postpone-

ment of the stay, 18 U.S.C. § 3626(e) (3), is inclusive of

the equitable considerations which the United States con-

tends allow a court to suspend the automatic stay. See

U.S. Pet 15. A showing that one is likely to suffer

irreparable harm and to defeat a termination motion dem-

onstrates “good cause.” A court that has been presented

with such a showing should be able to make the findings

required to deny a termination motion within the ninety-

day period, see 18 U.S.C. § 3626(b)(3), as the court is

authorized to appoint a special master “to conduct hear-

ings on the record and prepare proposed findings of fact.”

Id. § 3626(f)(1).

missible because of general congestion of the court’s calendar.”

18 U.S.C. § 3626(e)(3). Subsection (e)(3) further demonstrates

that Congress was fully aware of the distinction between the terms

“shall” and “may” and intended each term to be given its meaning

in common parlance.

14

That Congress authorized an interlocutory appeal of

“faJny order staying, suspending, delaying, or barring the

operation of the automatic stay,” 18 U.S.C. § 3626(e)(4),

does not “impl[y] that district courts have authority to

issue such orders.” U.S. Pet. 16. Congress enacted PLRA

in response to numerous instances of federal judicial over-

reaching. See House Report No. 104-21, at 25-27; 141

Cong. Rec. S 14626 (daily ed., Sept. 29, 1995) (State-

ments of Sens. Dole & Hatch). Given this record, Con-

gress could reasonably anticipate that PLRA’s reforms

would be resisted by federal judges who would seek to

circumvent the operation of the automatic stay either by

declaring it unconstitutional® or by asserting—as the

United States does—that the statute does not limit their

equitable authority.

Indeed, as originally enacted, Section 3626(e) contained

no provision for interlocutory review. See Pub. L. 104-

134, Title I, § 101(a), 110 Stat. 1321-66. As Senator

Abraham, who shepherded the 1997 amendment which

added subsection 3626(e) (4), explained:

Courts have also been avoiding the automatic

stay by saying that it is impossible to comply with

because it sets up an impossible timetable and that

it is therefore unconstitutional. The Department of

Justice meanwhile has contended that the stay is not

really automatic at all, although no court has ac-

cepted that view.

¢ Administrators’ attempts to invoke PLRA were greeted by

numerous challenges on various constitutional grounds. See, e.g.,

Dougan v. Singletary, 129 F.3d 1424, 1425-27 (11th Cir. 1997);

Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 655-61

(ist Cir. 1997); Gavin v. Branstad, 122 F.3d 1081, 1084 (8th Cir.

1997) ; Plyler v. Moore, 100 F.3d 365, 368 (4th Cir. 1996). It was

_ thus forseeable that the automatic stay amendment would likewise

be subjected to challenges.

15

143 Cong. Rec. S 12269 (daily ed., Nov. 9, 1997).7

Thus, subsection (e)(4) does not “impl[y] that district

courts have authority to issue” orders suspending the auto-

matic stay. U.S. Pet. 16. Rather, subsection 3626(e) (4)

was enacted to ensure that decisions of cou:ts which had

invalidated the stay would be immediately appealable not-

withstanding their interlocutory nature.

Furthermore, the United States mischaracterizes the

history of PLRA when it states that “{a]t the same time

that Congress provided for appeal of an order suspending

the automatic stay, it also provided for review by man-

damus of a court’s failure to perform the duty to issue a

prompt ruling on a motion for termination.” U.S. Pet.

16. PLRA, however, originally contained no provision for

appellate review other than by mandamus. Subsection

(e)(4) was added to ensure that orders circumventing the

Stay would be treated as immediately appealable. Indeed,

one month before subsection (e)(4) was proposed, the

Fifth Circuit in Ruiz v. Johnson refused to review the dis-

trict court’s holding that the automatic stay provision was

unconstitutional. See 178 F.3d at 388. Congress thus

enacted the provision in direct response to decisions such

as Ruiz.* Subsection (e)(4) therefore does not reflect

7 The district court in Ruiz v. Johnson had invalidated the auto-

matic stay provision as violative of separation of powers principles

sometime in late 1996 or early 1997. See Ruiz v. Johnson, 178 F.3d

$85, 388 (5th Cir. 1999). Moreover, in Hadiz v. Johnson, the

federal courts for both the Eastern and Western Districts of Michi-

gan had invalidated the automatic stay as violative of separation

of powers principles and the Due Process Clause of the Fifth

Amendment. See Hadiz v. Johnson, 144 F.8d 925, 932 (6th Cir.

1998) (citing Hadiz v. Johnson, 933 F. Supp. 1360 (E.D. Mich.

1996); Hadiz v. Johnson, 933 F. Supp. 1862 (W.D. Mich. 1996)).

8 Given the limitations on interlocutory appeals under 28 U.S.C.

§ 1292(a)(1), a stay of the stay was likely not properly appealable

without explicit Congressional authorization. While a stay might

well be viewed as having “the practical effect” of continuing an

16

Congress’ “recognition that an order suspending the auto-

matic stay is within the authority of a district court,” U.S.

Pet. 16-17, or imply that district courts have authority to

invoke general equitable principles to stay the stay be-

yond the ninety-day time period.®

injunction, Carson v. American Brands, Inc., 450 U.S. 79, 83

(1981), it is unlikely that prison officials could convince federal

courts that the order, which in practical effect results in requiring

officials to maintain the status quo, would have the “ ‘serious, per-

haps irreparable, consequence,’ that is a prerequisite to appeal-

ability under § 1292(a)(1).” Jd. at 85.

®The United States asserts that “[t]he court of appeals at-

tempted to explain the provision for appellate review as a mechanism

for ensuring prompt reversal of all orders suspending the auto-

matic stay,” to suggest that “[i]f that were Congress’s intent. . .

it would have provided for appellate correction through mandamus.”

U.S. Pet. 16. Contrary to the suggestion of the United States, the

court of appeals viewed the interlocutory appeal provision as pro-

viding a mechanism for prompt resolution of the constitutionality

of the automatic stay. As the court explained, “(t]he drafters of

the PLRA realized that they were skating close to the line in

(e)(2), and they wanted to ensure that the issue that is now before

us could be resolved in an interlocutory appeal.” Pet. App. 23a. As

explained above, this view is amply supported by the history of

§ (e)(4), which demonstrates that it was enacted in response to

several decisions holding § (e)(2) unconstitutional.

The United States’ contention that Congress would have pro-

vided for mandamus as the method to “ensur[e] prompt reversal of

all orders suspending the automatic stay,” U.S. Pet. 16, is irreconcil-

able with the nature of mandamus. Mandamus is an extraordinary

remedy and “should be resorted to only where appeal is a clearly

inadequate remedy.” Ex parte Fahey, 332 U.S. 258, 259-60 (1947).

“(T]he party seeking mandamus has ‘the burden of showing that its

right to issuance of the writ is “clear and indisputable.”’” Will v.

United States, 389 U.S. 90, 96 (1967) (quoting Bankers Life &

Cas. Co. v. Holland, 346 U.S. 379, 384 (1953) (quoting United

States v. Duell, 172 U.S. 576, 582 (1899))). Furthermore, “man-

damus is governed by equitable considerations and is to be granted

only in the exercise of sound discretion.” Whitehouse v. Illinois

Cent. R.R. Co., 349 U.S. 366, 373 (1955). Providing a remedy of

mandamus to review orders staying the stay would thus lead to the

same problems Congress sought to rectify in enacting PLRA.

17

In sum, under Congress’ carefully crafted scheme a

federal court can continue in force an existing decree for

up to ninety days without making any further findings;

it can renew the decree by making the findings which are

constitutionally required to support it. Adopting the

United States’ construction of the automatic stay provi-

sion would result in the paradox that preliminary injunc-

tive relief awarded subsequent to PLRA’s enactment

“shall automatically expire . . . 90 days after its entry”

absent a court’s making the required findings, 18 U.S.C.

§ 3626(a)(2), but a pre-existing decree could continue

indefinitely without findings2® This makes little sense

given that a district court will, in most cases, already have

substantial knowledge of the circumstances which led to

an existing decree and have less need for additional time

to make the findings necessary to support the denial of a

termination motion. See 18 U.S.C. § 3626(b)(3). That

section 3626(f)(1) authorizes the court to appoint a

special master “to conduct hearings on the record and

prepare proposed findings of fact” demonstrates that Con-

gress meant what it said—that if the court does not make

the required findings within the ninety-day period. the-

decree must be suspended.“ Indeed, motions for prelim-

inary injunctive relief are frequently consolidated with

accelerated trials on the merits. Charles A. Wright &

10 Adopting the United States’ position would likely lead to simi-

lar attempts to circumvent the plain meaning of section 3626

(a)(2)’s command that “[p]reliminary injunctive relief shall auto-

matically expire on the date that is 90 days after its entry, unless

the court makes the findings required under subsection (a) (1).”

11 The automatic stay operates only until “the court enters a final

order ruling on the motion.” 18 U.S.C. § 3626(e)(2)(B). Where

the unconstitutional conditions which prompted a decree no longer

exist, there is no justification for requiring officials to continue to

comply with its terms. Where conditions still violate the Constitu-

tion, the court will deny the motion to terminate the decree.

18

Arthur Miller, Federal Practice & Procedure § 2950, at

233 (1982).

It is likewise hard to see what purpose is served by al-

lowing federal courts to stay the stay even if such an

order is subject to traditional equitable standards. While

the prisoners would have to show “a substantial likelihood

of ultimate success on the merits,” Moore’s Federal Prac-

tice, § 65.22[1], at 65-52, there will still be many cases

in which the State prevails after a trial. The State will,

however, be unable to obtain redress for the harm it suf-

fers where an injunction is maintained even after the

violations have been corrected.

Moreover, where violations of federal law have not

been remedied, the prisoners are not required to wait

until the State files a termination motion to seek addi-

tional relief. Prisoners retain the right to secure com-

pliance with a valid decree at all times and to bring to

the court’s attention new violations of federal law. There

is thus no need for courts to stay the stay. Allowing

courts to do so would remove the incentive for prompt

decisionmaking which the statute creates.

This case amply demonstrates why Congress meant

what it said. Here, the State moved for termination in

June 1997. Today, nearly three years later, the district

court still has not ruled on the State’s motion. See Pet.

App. 36a. Adopting the United States’ reading would

thus serve neither the interests of the State nor of the

prisoners. In short, it would render the statute preca-

tory much as the panel below ultimately did. See Pet.

12 Nor do federal courts need the authority to stay the stay to

protect prisoners against stalling tactics. As Judge Easterbrook

explained, “Courts can foil delaying maneuvers by imposing sanc-

tions on parties that fail to cooperate in discovery, see Fed. R. Civ.

P. 37, and by drawing adverse inferences about missing evidence.

The inference then could support a finding under § 3626(b)(3).”

Pet. App. 38a.

19

App. 30a. The Court should reject this reading, which

flies in the face of Section 3626’s clear and unambiguous

text.

B. The Automatic Stay Provision Does Not Violate Sepa-

ration Of Powers Principles

While the court of appeals correctly construed section

3626(e), it erred in holding that the automatic stay pro-

vision violates separation of powers principles. In the

court of appeals’ view, subsection (e) violates these prin-

ciples for two reasons. First, “{i]t strips from the court

the authority to decide whether the status quo . . . should

be continued or modified pending the court’s decision on

the immediate termination petition.” Pet. App. 25a. Ac-

cording to the court, “ ‘the Framers crafted [Article III]

. with an expressed understanding that it gives the

Federal Judiciary the power, not merely to rule on cases,

but to decide them, subject to review only by superior

courts in the Article III hierarchy.”” Id. at 29a (quoting

Plaut v. Spendthrift Farm Inc., 514 U.S. 211, 218-19

(1995)). In the court of appeals’ view, “(e)(2) places

the power to review judicial decisions outside of the judi-

ciary: it is a self-executing legislative determination that

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

at least for a period of time, no matter what the urgency

of keeping it in place.” Id. According to the court below,

“{tjhis amounts to an unconstitutional intrusion on the

power of the courts to adjudicate cases.” I/d.

Second, the court of appeals reasoned “that (e)(2) vio-

lates the principle articulated in United States v. Klein,

80 U.S. (13 Wall.) 128 (1871).” Id. In the court’s

view, the automatic stay unconstitutionally prescribes a

rule of decision in a pending case because for the period

during which the termination motion is pending, “the

statute does mandate a particular rule of decision: the

prospective relief must be terminated.” Jd. at 30. Ae-

20

cording to the court, “this falls comfortably within the

rule of Klein, and as such, it exceeds the power of the

legislative branch.” Id.

Neither of these rationales are persuasive. The separa-

tion of powers does not render Congress powerless to re-

spond if district judges exceed their equitable jurisdiction.

To the contrary, the Constitution expressly gives Con-

gress the authority to regulate the equitable jurisdiction

of the lower federal courts. As Article III, Section 1,

states: “The judicial Power of the United States, shall

be vested in one supreme Court, and in such inferior

Courts as the Congress may from time to time ordain

and establish.”

“There can be no question of the power of Congress

. . . to define and limit the jurisdiction of the inferior

courts of the United States.” Lauf v. E.G. Shinner &

Co., 303 U.S. 323, 330 (1938). The Court has thus

recognized that “{t]he Congressional power to ordain and

establish inferior courts includes the power ‘of investing

them with jurisdiction either limited, concurrent, or ex-

clusive, and of withholding jurisdiction from them in the

exact degrees and character which to Congress may seem

proper for the public good.’” Lockerty v. Phillips, 319

U.S. 182, 187 (1943) (quoting Cary v. Curtis, 44 US.

(3 How.) 236, 245 (1845)). The Court has further

explained that:

Only the jurisdiction of the Supreme Court is de-

rived directly from the Constitution. Every other

court created by the general government derives its

jurisdiction wholly from the authority of Congress.

That body may give, withhold or restrict such juris-

diction at its discretion, provided it be not extended

beyond the boundaries fixed by the Constitution.

The Constitution simply gives to the inferior courts

the capacity to take jurisdiction in the enumerated

21

eases, but it requires an act of Congress to confer

it. And the jurisdiction having been conferred may,

at the will of Congress, be taken away in whole or

in part....

Kline v. Burke Const. Co., 260 U.S. 226, 234 (1922)

(citations omitted).

Congress has exercised its power to restrict the exer-

cise of the equity jurisdiction in various ways. First, it

can prohibit the federal courts from exercising equitable

powers over entire categories of cases, as it did in the

Anti-Injunction Act, enacted in 1793. See Act of Mar. 2,

1793, §5, 1 Stat. 335 (now codified at 28 U.S.C.

§ 2283) (limiting federal courts’ authority to enjoin state

court proceedings). See also 28 U.S.C. § 1342 (Johnson

Act) (limiting federal district court authority to enjoin

State public utility rate orders); 28 U.S.C. § 1341 (Tax

Injunction Act) (limiting federal district court authority

to enjoin the collection of state taxes).

Second, Congress can exercise its constitutional power

to limit the authority of federal district courts to issue

interlocutory injunctions. See Richard H. Fallon et al.,

Hart and Wechsler’s The Federal Courts And The Fed-

eral System 1212 (4th ed. 1996) (discussing enactment

of since-repealed 28 U.S.C. § 2281, which created three-

judge district courts in response to “the particular abuses

of ex parte restraining orders and interlocutory injunc-

tions” in the aftermath of Ex Parte Young, 209 U.S. 123

(1908)).

In the Emergency Price Control Act of 1942, 56 Stat.

23, Congress “vest[ed] jurisdiction to grant equitable re-

lief exclusively in the Emergency Court [of Appeals] and

in” this Court, removing from all other courts equitable

authority to stay or enjoin the administrator’s regulations.

Lockerty, 319 U.S. at 186-87. The Act also prohibited

22

all interlocutory injunctive relief. See Yakus v. United

States, 321 U.S. 414, 428 (1944).

Yakus rejected a challenge to the latter prohibition.

The Court noted that “jiJhe award of an interlocutory

injunction by courts of equity has never been regarded as

strictly a matter of right, even though irreparable iniury

may otherwise result to the plaintiff.” Jd. at 440. The

Court further observed that “where an injunction is asked

which will adversely affect a public interest for whose

impairment, even temporarily, an injunction bond cannot

compensate, the court may in the public interest withhold

relief until a final determination of the rights of the par-

ties, though the postponement may be burdensome to the

plaintiff.” Id. According to the Court, “StJhis is but

another application of the principle . . . that ‘Courts of

equity may, and frequently do, go much further both to

give and withhold relief in furtherance of the public in-

terest than they are accustomed to go when only private

interests are involved.’ ” Id. at 441 (quoting Virg‘nian Ry.

Co. v. System iederation, 300 U.S. 515, 552 (1937)).

Yakus further makes plain that prohibiting interlocu-

tory injunctive relief is fully within Congress’ “power to

define the jurisdiction of inferior federal courts,” id. at

443, and that Congress does not violate separation of

powers principles in doing so.

In so doing [Congress] has done only what a court

of equity could have done, in the exercise of its dis-

cretion to protect the public interest. What the

courts do Congress can do as the guardian of the

public interest of the nation in time of war. The

legislative formulation of what would otherwise be

a rule of judicial discretion is not . . . a usurpation

of judicial functions.

Id. at 441-42,

23

Finally, Congress can impose time limits on the issu-

ance of an equitable decree and require a federal court

to make findings as a prerequisite to entering an injunc-

tion, as it did in the Norris-LaGuardia Act. See Lauf,

303 U.S. at 329-30. Under that act, a district court can

issue a temporary restraining order which “shall be ef-

fective for no longer than five days and shall become void

at the expiration of said five days.” 29 U.S.C. § 107.

Furthermore, “[nJo court of the United States shall have

jurisdiction to issue a temporary or permanent injunction

in any case involving or growing out of a labor dispute

... except after findings of fact by the court” as specified

in the statute.? Jd.

In Lauf, the Court reversed an injunction which the

district court had granted “in the absence of findings

which the Norris-LaGuardia Act makes prerequisites to

the exercise of jurisdiction.” Id. at 329 (footnote omitted).

Observing that “[t]here can be no question of the power

of Congress thus to define and limit the jurisdiction of

the inferior courts of the United States,” the Court held

that “[t)he District Court made none of the required find-

ings save as to irreparable injury and lack of remedy at

law. It follows that in issuing the injunction it exceeded

its jurisdiction.” Jd. at 330 (citing Kline, 260 U.S. at

233, 234).

As the foregoing demonstrates, for more than two cen-

turies it has been the accepted understanding that Article

13 The Norris-LaGuardia Act was enacted to prohibit federal

courts from issuing injunctive relief enforcing “yellow-dog” con-

tracts. As Hart & Wechsler explains, “[a]t the time of [its] adop-

tion, Truaz v. Corrigan, 257 U.S. 312 (1921), had found state legis-

lation similarly limiting employers’ remedies to be unconstitu-

tional.” Federal Courts, at 363. The Court had previously “found

a due process right to condition employment on an undertaking not

to join a labor union or on non-mémbership.” /d. at 364 (citing

Coppage v. Kansas, 236 U.S. 1 (1915); Adair v. United States,

208 U.S. 161 (1908)).

24

III, Section 1, grants Congress broad power to limit the

equitable jurisdiction of the lower federal courts. Con-

trary to the views of the court of appeals, sub-section

(e)(2) cannot violate Article III as “an unconstitutional

intrusion on the power of the courts to adjudicate cases,”

Pet. App. 29a, when text and history demonstrate that

Article III, § 1, commits to Congress the power to regu-

late the lower federal courts’ exercise of their equitable

authority. And whether or not there are any other limits

on Congress’ power in this regard, PLRA’s automatic

stay provision is an unexceptionable exercise of this

power.

Sub-section (e)(2) does not totally divest the federal

courts of equity jurisdiction over prison condition cases

although Congress clearly can do so. Cf. 28 U.S.C.

§ 2283. Nor does it deny a federal court the power to

maintain the status quo following the State’s filing of a

termination motion, even though Congress clearly has the

power to prohibit interlocutory relief. See Yakus, 321

U.S. at 441-42. Rather, the automatic stay allows a court

to award the functional equivalent of interlocutory relief,

subject to a temporal limitation. Sub-section (e)(2)’s

grant of authority to a court to postpone the stay is ana-

logous to the time limitations on equitable relief imposed

on the federal courts in the Norris-LaGuardia Act, 29

U.S.C. § 107 (limiting TRO to five days), and the Fed-

eral Rules of Civil Procedure, see Fed. R. Civ. P. 65

(limiting TRO to ten days and one extension), which as

a practical matter require the court to conduct a hearing

and make findings in order to impose further equitable

relief through an injunction.

The court of appeals dismissed these time limits as

“respond[ing] to the particular problems of ex parte pro-

ceedings.” Pet. App. 24a. But that is beside the point.

These rules demonstrate that Congress can impose time

25

limits on interim relief. Given that a total prohibition of

interlocutory injunctive relief by Congress is not “a

usurpation of judicial functions,” Yakus, 321 U.S. at 442,

neither is a time limit on a court's ability to preserve the

Status quo.'*

No more persuasive is the court of appeals’ contention

that sub-section (e)(2) violates the structural independ-

ence of the judiciary because Article III “ ‘gives the Fed-

eral Judiciary the power, not merely to rule on cases, but

to decide them, subject to review only by superior courts

in the Article III hierarchy.”” Pet. App. 29a (quoting

Plaut, 514 U.S. at 218-19). The automatic stay provi-

sion does not, however, intrude on the power of the fed-

eral courts to decide a case. Indeed, the whole point of

sub-section (¢)(2) is to encourage the court to decide

the case as the stay “end[s] on the date the court enters

a final order ruling on the motion.”™ 18 U.S.C.

§ 3626(e)(2)(B). If conditions warrant continuing the

injunction, the court must make the constitutionally re-

quired findings. See id. § 3626(b)(3).

That sub-section (e) directs the suspension of an exist-

ing decree where the judge has not rule in the allotted

14 The court of appeals also stated that congressionally imposed

time limits on executive agencies are “of little assistance” because

“Cw ]here agencies are involved, the judgments . .. were not rendered

by Article III courts but by entities that the Constitution places

under the control of Congress.” Pet. App. 27a. As explained above,

the view implicit in this suggestion—that the federal courts are

beyond the control of Congress—is refuted by the text of Article

III and two centuries of congressional regulation of their jurisdic-

tion and procedure.

15 As the House Report explained:

under current law, there is little that the parties can do to

require or even encourage the judge to rule on their request.

By providing that the prospective relief that is subject to the

motion will be stayed if the motion is not decided promptly,

judges will be motivated to decide the motions and avoid hav-

ing the stay automatically take effect.

House Report at 26 (footnote omitted).

26

time does not render it an “unconstitutional intrusion on

the power of courts to adjudicate cases.” Pet. App. 29a.

This argument ignores the settled principle that injunctive

relief “should be no broader and last no longer than nec-

essary to remedy the discrete constitutional violation.”

Lewis, 518 U.S. at 393 (Thomas, J., concurring). The

“federal remedial power may be exercised ‘only on the

basis of a constitutional violation.’” Milliken, 418 US.

at 738 (quoting Swann, 402 U.S. at 16). The require-

ment of a current constitutional violation is an “inherent

limitation upon federal judicial authority.” Ok/ahoma

City Bd. of Ed., 498 U.S. at 247 (quoting Milliken, 433

U.S. at 282). Just as “federal-court decrees exceed appro-

priate limits if they are aimed at eliminating a condition

that does not violate the Constitution,” id. (quoting 433

U.S. at 282), so too do decrees which remain in effect

once the State has remedied a constitutional violation.

Having found that state and local officials “are often

handcuffed in their efforts to modify or terminate unnec-

essary and burdensome consent decrees . . . by judge[s]

who stonewall and simply refuse, for many months or

even years, to issue a ruling on a request for modification

or termination,” House Report at 26, Congress “has done

only what a court of equity could have done, in the exer-

cise of its discretion to protect the public interest.” Yakus,

321 U.S. at 441-42. Congress could rightfully conclude

that prison officials will act in good faith in seeking to

terminate or modify existing decrees. Indeed, prison offi-

cials have little to gain and much to lose (such as dam-

aged credibility and attorneys’ fees) if they move to

terminate when conditions continue to violate the Con-

stitution.®

16 It is erroneous to characterize the automatic stay as “a legis-

latively commanded, self-executing stay of an existing court order.”

Pet. App. 32a. See also id. at 29a; U.S. Pet. 17. Sub-section (e) (2)

does not, by itself, stay all existing decrees in prison condition

~«

27

“(Wyhere an injunction is asked which will adversely

affect a public interest for whose impairment, even tem-

porarily, an injunction bond cannot compensate, the court

may in the public interest withhold relief until a final

determination of the rights of the parties, though the post-

ponement may be burdensome to the plaintiff.” Jd. at

440. Congress, as much as the courts, can weigh the

equities and conclvde that the continuance of injunc-

tions which are unsupported by new findings causes undue

harm to the public interest which outweighs the interest

of prisoners. Requiring suspension of a decree when a

court fails to make the constitutionally required findings

is not a “usurpation of judicial functions” in violation of

Article III. Id. at 442.

As for the court of appeals’ other rationale, Klein is

simply inapposite. “Whatever the precise scope of Klein,

. . its prohibition does not take hold when Congress

‘amend[s] applicable law.’” Plaut, 514 U.S. at 218

(quoting Robertson v. Seattle Audubon Soc., 503 US.

429, 441 (1992)). Indeed, it is well established that

when Congress changes the applicable law, a court of

equity cannot enforce “a continuing decree” but must give

the new law effect. Pennsylvania v. Wheeling & Belmont

Bridge Co., 59 U.S. (18 How.) 421, 437 (1855). See

also Agostini v. Felton, 117 S.Ct. 1997, 2006 (1997)

(“A court errs when it refuses to modify an injunction or

cases. Rather, it stays an existing decree only where a party has

moved to modify or terminate. See 18 U.S.C. § 3626(e)(2). Fur-

thermore, a court retains power to prevent the stay from going into

effect either by postponing its effective date, see id. § 3626(e)(3),

or by “enter[ing] a final order ruling on the motion.” Jd. § 3626

(e)(2)(B). A court thus retains power to decide the case under

the applicable substantive law.

Nor is § (e)(2) directed at any “specific decree.” See Pet. App.

29a (describing § (e)(2) as “a self-executing determination that a

specific decree of a federal court—here the decree addressing condi-

tions at Pendleton—must be set aside’’).

28

consent decree in light of [significant] changes” in the

law); Rufo v. Inmates of Suffolk County Jail, 502 US.

367, 388 (1992) (“A consent decree must of course be

modified if, as it later turns out, one or more of the obli-

gations placed upon the parties has become impermissible

under federal law.”). Indeed, “[a] continuing decree of

injunction directed to events to come is subject always to

adaptation as events may shape the need.” United States

v. Swift & Co., 286 U.S. 106, 114 (1932).

If amending the substantive law applicable to a con-

tinuing injunction or consent decree does not violate the

separation of powers, Congress surely can adopt proce-

dures to protect the rights of parties who are entitled to

the benefit of the new law. To conclude otherwise would

allow the courts to frustrate the purpose of the under-

lying substantive law. The automatic stay provision mani-

fests Congress’ recognition that continued enforcement of

structural decrees which impose obligations that exceed

constitutional requirements places an undue burden on

prison administrators and has potentially harmful conse-

quences for public safety. Because administrators and

the public would otherwise have no adequate remedy

where a federal court continues an invalid injunction,

Article III, Section 1, empowers Congress to protect the

public interest by requiring a federal court to either rule

or stay the decree.

29

CONCLUSION

The judgment of the court of appeals should be re-

versed.

February 3, 2000

Respectfully submitted,

RICHARD RUDA *

Chief Counsel

JAMES I. CROWLEY

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

Suite 345

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae