Amicus Curiae Brief — Miller v. French

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Nos. 99-224, 99-582 FILED

ee are

In The

Supreme Court of the United Gtabiiak

S

CHARLES B. MILLER, SUPERINTENDENT OF THE

PENDLETON CORRECTIONAL FACILITY, et al.,

Petitioner,

—

versus

RICHARD A. FRENCH, et al.,

Respondents.

UNITED STATES,

Petitioner,

versus

RICHARD A. FRENCH, et al.,

Respondents.

+

On Writ Of Certiorari To The

United States Court Of Appeals

For The Seventh Circuit

S

BRIEF OF LAW PROFESSORS ERWIN

CHEMERINSKY, MICHAEL C. DORE,

BARRY FRIEDMAN, JAMES LIEBMAN,

GENE R. NICHOL, JR., AND MARCY STRAUSS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

RICHARD A. FRENCH, et al.

¢

ERWIN CHEMERINSKY

Counsel of Record

UNIVERSITY OF SOUTHERN CALIFORNIA

Law SCHOOL

699 Exposition Blvd.

Los Angeles, CA 90089-0071

(213) 740-2539

Attorney for Amici Curiae

BEST AVAILABLE COPY samen

QUESTION PRESENTED

The explicit language of section (e) of the Prison

Litigation Reform Act, 18 U.S.C. §3626(e), compels a fed-

eral trial court which is confronted with a motion to

terminate prospective relief in a civil action with respect

to prison conditions to rule on the motion within a thirty

(30) day period which can, for good cause other than

calendar congestion, be extended for an additional sixty

(60) day period. If the trial court fails to timely rule upon

the motion, then the motion is temporarily granted in

that all prospective relief is suspended pending final

resolution by the trial court. Amici curiae present this

Question as appropriate for resolving this case and

encompassed by the grant of certiorari:

Whether 18 U.S.C. §3626(e) is unconstitutional as

violating separation of powers because it retroactively

suspends final federal court judgments imposed as

remedies for constitutional violations.

TABLE OF CONTENTS

Page

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i ct escee edhe ene bosee veccesdeteces 5

THE AUTOMATIC STAY PROVISION OF THE

PRISON LITIGATION REFORM ACT IS UNCON-

STITUTIONAL BECAUSE IT RETROACTIVELY

SUSPENDS A FINAL JUDGMENT OF A FEDERAL

COURT IMPOSED AS A REMEDY FOR CONSTI!

pe a Be | PPPTITITT ETE TeTTTiiiire 5

A. A Federal Statute Cannot Retroactively Suspend

a Final Judgment or Compel a Federal Court to

Do So, Particularly a Judgment Entered as a

Remedy for Constitutional Violations .......... 5

B. The Automatic Stay Provision of the Prison Liti-

gation Reform Act, §3626(e)(2), Is a Federal Law

that Retroactively Suspends a Final Court Judg-

ment Remedying Constitutional Violations ..... 10

C. The Automatic Stay Provision of the Prison Liti-

gation Reform Act, §3626(e)(2), Is Unconstitu-

a ss oc eceeecs 16

TABLE OF AUTHORITIES

Page

Cases

C. & S. Air Lines v. Waterman Corp., 333 U.S. 103

GREE cc esavceccencsescccocescvcssosesessesesececes 6

Commodity Futures Trading Comm'n v. Schor, 478

ee Ge CPD cccccccccceccceseccecccosccecseseees 5

Cooper v. Aaron, 358 U.S. 1 (1958) ......... 6c cece 10

French v. Duckworth, 178 F.3d 437 (7th Cir. 1999),

cert. granted, 120 S.Ct. 578 (1999). ....... 6.0... eee 13

French v. Owens, 777 F.2d 1250 (7th Cir. 1985)..... 4, 12

Hadix v. Johnson, 144 F.3d 925 (6th Cir. 1998)........ 13

Hayburn’s Case, 2 U.S. (2 Dall.) 408 (1792)....... passim

Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilb-

GEE, TEE WB. TES CRGGED cc cccccccccccccccescccces 7

Landgraf v. USI Films Products, 511 U.S. 244 (1994) .... 12

Lauf v. E.G. Shiner & Co., 303 U.S. 323 (1938)........ 15

Northern Pipeline Constr. Co. v. Marathon Pipe Line

Cain GED UE. FD (IGE ccc cccccccccccccccscccccccs 16

Pennsylvania v. Wheeling & Belmont Bridge Co., 59

U.S. (18 How.) 421 (1855)... 2.6... ccc eee eee ee ees 14

Pennsylvania v. Wheeling & Belmont Bridge Co., 54

U.S. (13 How.) 518 (1852)............6555. 4, 9, 14, 15

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

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

SUPE Saceccecesdcccecccceceoanetaébeesecesessoses 9

iv

TABLE OF AUTHORITIES - Continued

DD evens sudecudesakeeakdneteladid pekans 12

United States v. Klein, 80 U.S. (13 Wall.) 128 (1872) . . passim

United States v. Padelford, 76 U.S. (9 Wall.) 531

GREED occ veccvesenccccessecesscesenusonseseossseees 8

STATUTES

SP Gee Ss vnc ccncccescoscscensucsacescuees passim

BP Geen TOF cececcvcesdscasanssesaceseseuenecdabes 17

OTHER AUTHORITIES

Ira Bloom, Prisons, Prisoners, and Pine Forests: Con-

gress Breaches the Wall Separating Legislative from

Judicial Power, 40 Ariz. L. Rev. 389 (1998)......... 19

Henry Hart, The Power of Congress to Limit Jurisdic-

tion of Federal Courts: An Exercise in Dialectic, 66

¥ SF RRR ER ay Rae alar ae 10

Laurence H. Tribe, American Constitutional Law (3d

GS Goku cddccdetecuanwassadaseksdide meee 9

INTERESTS OF AMICI CURIAE!

Amici curiae are law professors who specialize in the

fields of Constitutional Law and Federal Courts and write

this brief out of the hope that their expertise might be

helpful to the Court.

Erwin Chemerinsky is the Sydney M. Irmas Pro-

fessor of Public Interest Law, Legal Ethics, and Political

Science, at the University of Southern California. He has

authored treatises on both constitutional law and federal

courts and many articles in these fields.

Michael C. Dorf is a Professor of Law and Vice Dean

at Columbia University School of Law. Professor Dorf has

co-authored a book on constitutional law and has written

many articles concerning constitutional law and federal

court jurisdiction.

Barry Friedman is a Professor of Law at Vanderbilt

University Law School and a Visiting Professor of Law at

New York University School of Law. He is the author of

many articles on constitutional law and federal court

jurisdiction.

James Liebman is the Simon H. Rifkind Professor at

Columbia University School of Law. He is the author of

Habeas Corpus: Practice and Procedure, a treatise on habeas

1 Letters of consent to the filing of this brief have been

lodged with the Clerk of the Court pursuant to Rule 37.3.

Pursuant to Rule 37.6, counsel for amici state that no counsel for

a party authored this brief in whole or in part and that no

person, other than amici or its counsel, made a monetary

contribution to the preparation and submission of this brief.

corpus, and many articles on aspects of constitutional law

and federal court jurisdiction.

Gene R. Nichol, Jr. is the Dean of the University of

North Carolina School of Law and the William Rand

Kenan, Jr. Professor of Law. He has written extensively on

constitutional law and federal jurisdiction.

Marcy Strauss is a Professor of Law at Loyola Law

School in Los Angeles, California. She is the author of

many articles on constitutional law and federal court

jurisdiction.

¢

SUMMARY OF ARGUMENT

This case is about one of the most important and

basic principles of separation of powers: Congress cannot

direct how a federal court rules in a specific case and

especially cannot retroactively suspend a federal court's

judgment. See, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S.

211 (1995); United States v. Klein, 80 U.S. (13 Wall.) 128

(1872); Hayburn’s Case, 2 U.S. (2 Dall.) 408 (1792).

Section 3626(e)(2) of the Prison Litigation Reform

Act, 18 U.S.C. §3626, et seq., does exactly this. The Act

authorizes government defendants in prison condition

cases to move for termination of prospective court orders

and allows a federal court to continue the injunctive relief

only by making specific findings as to the need for such

relief. Section (e)(2) provides that a federal court must

decide upon a defendant's motion within 30 days or the

existing final judgment of the court is automatically

stayed. The law allows a federal court to extend the time

period by no more than 60 days, but provides that “[n]o

postponement shall be permissible because of “general

congestion of the court’s calendar.” 18 U.S.C. §3626(e)(3).

Therefore, if the federal court does not rule within

the 30, or at most 90, day period, the law requires the

court, at least temporarily, to grant the government's

motion to end the injunction. This Court long has ruled

that it violates separation of powers for Congress to

command that a federal court rule in favor of a particular

litigant. See, e.g., United States v. Klein, 80 U.S. (13 Wall.)

128 (1872).

Indeed, §3626(e)(2) is particularly pernicious from a

constitutional perspective because it retroactively sus-

pends final judgments of federal courts imposed as

remedies for constitutional violations. A simple syllogism

explains the unconstitutionality of §3626(e)(2):

MAJOR PREMISE: A federal statute is uncon-

stitutional if it retroactively suspends a final

judgment or compels a federal court to do so.

MINOR PREMISE: Section 3626(e)(2) is a federal

statute that retroactively suspends a final judg-

ment or compels a federal court to do so.

CONCLUSION: Section 3626(e)(2) is unconstitu-

tional.

The major premise of this syllogism has been estab-

lished and followed since the earliest days of the nation.

In Hayburn’s Case, 2 U.S. (2 Dall.) 408 (1792), Justice

Iredell declared that no federal court judgment is “liable

to a revision, or even suspension, by the legislature

itself.” 2 U.S. (2 Dall.) at 412. Plaut v. Spendthrift Farm,

Inc., 514 U.S. 211 (1995), reaffirmed this principle.

The minor premise of the syllogism also is clearly

correct: §3626(e)(2) orders the suspension of final judg-

ments of federal courts. Section 3626(e)(2) commands that

federal courts grant defendants’ motions to end injunc-

tions against them if there is not a ruling on the motions

within 30, or at the greatest 90 days. Under Klein, Con-

gress cannot issue such a directive to federal courts to

decide motions in a particular way. Moreover, in this

case, the effect of §3626(e)(2) is to retroactively suspend a

final judgment of a federal court. A federal district court

issued a permanent injunction concerning the Pendleton

Correctional Facility to remedy constitutional violations.

See French v. Owens, 777 F.2d 1250, 1258 (7th Cir. 1985).

Subsequently, the Prison Litigation Reform Act was

enacted. An injunction in place before the Act is lifted ©

solely by virtue of the statute.

The conclusion thus follows: §3626(e)(2) is uncon-

stitutional. Congress cannot direct that federal courts

decide cases in favor of the government, or any party,

and Congress certainly cannot order the suspension of

final federal court judgments. Congress, of course, under

some circumstances may set time limits for court action,

but never can these limits be enforced by Congress sus-

pending final judgments of federal courts. In cases

involving prospective relief under federal statutes, Con-

gress can change the underlying substantive law and

thereby cause courts to reconsider injunctions based on

the prior law. Pennsylvania v. Wheeling & Belmont Bridge

Co., 59 U.S. (18 How.) 421 (1855). But no case decided by

this Court ever has approved Congress suspending fed-

eral court orders imposed as remedies in constitutional

cases. According Congress such authority would dramati-

cally undermine the judicial power as all court orders

remedying constitutional violations could be suspended

or ended by legislative action.

+

ARGUMENT

THE AUTOMATIC STAY PROVISION OF THE

PRISON LITIGATION REFORM ACT IS UNCON-

STITUTIONAL BECAUSE IT RETROACTIVELY SUS-

PENDS A FINAL JUDGMENT OF A FEDERAL COURT

IMPOSED AS A REMEDY FOR CONSTITUTIONAL

VIOLATIONS

A. A Federal Statute Cannot Retroactively Sus-

pend a Final Judgment or Compel a Federal

Court to Do So, Particularly a Judgment

Entered as a Remedy for Constitutional Viola-

tions

Amici curiae submit this brief to urge this Court to

affirm a basic and essential principle of separation of

powers: Congress cannot retroactively overturn a final

judgment of a federal court, either by legislatively order-

ing it suspended or by compelling a federal court to stay

its prior judgment. This is a principle that has been

recognized since the earliest days of the nation and it is

crucial “both to protect the role of the independent judici-

ary within the constitutional scheme of tripartite govern-

ment, .. . and to safeguard litigants’ right to have claims

decided by judges who are free from potential domina-

tion by other branches of government.” Commodity

Futures Trading Comm'n v. Schor, 478 U.S. 833, 848 (1986)

(citations and internal quotation marks omitted).

Thus it long has been firmly established that federal

legislation cannot overturn or even suspend a final judg-

ment of a federal court. In Hayburn’s Case, 2 U.S. (2 Dall.)

408 (1792), Justice Iredell declared: “[No] decision of any

court of the United States can, under any circumstance, in

our opinion, agreeable to the constitution, be liable to a

revision, Or even suspension, by the legislature itself, in

whom no judicial power of any kind appears to be

vested.” 2 U.S. (2 Dall.) at 412.

In Hayburn’s Case, the Justices declared unconstitu-

tional a federal law that allowed the Secretary of War to

revise federal court determinations of the amount of ben-

efits owed to Revolutionary War veterans. Although the

Supreme Court never explicitly ruled the statute uncon-

stitutional, five of the six Supreme Court justices, while

serving as Circuit Court judges, found the law invalid.

The justices explained that the law was unconstitutional

because it meant that judicial orders could be “revised

and controuled by the legislature, and by an officer ir the

executive department. Such revision and controul we

deemed radically inconsistent with the independence of

that judicial power which is vested in the courts.” Id. at

411. Accord C. & S. Air Lines v. Waterman Corp., 333 U.S.

103, 113 (1948) (“Judgments within the powers vested in

courts by [Article III] may not lawfully be revised, over-

turned or refused faith and credit by another Department

of Government.”)

More recently, this Court emphatically reaffirmed the

principle that it is unconstitutional for federal legislation

to retroactively overturn final judicial orders. In Plaut v.

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

applied the principle of Hayburn’s Case to find unconstitu-

tional a federal statute that overturned a Supreme Court

decision dismissing certain cases. In 1991, the Court ruled

that actions brought under the securities laws, speci-

fically §10(b) and Rule 10(b)(5) had to be brought within

one year of discovering the facts giving rise to the viola-

tion and within three years of the violation. Lampf, Pleva,

Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350

(1991). Congress then amended the law to allow cases to

go forward that were filed before this decision if they

could have been brought under the prior law.

In Plaut, this Court declared the new statute uncon-

stitutional as violating separation of powers. Although

the Court acknowledged that Hayburn’s Case was distin-

guishable, the Court found Hayburn's underlying princi-

ple of finality applicable. Justice Scalia writing for the

Court said that the Constitution “gives the Federal Judici-

ary the power, not merely to rule on cases, but to decide

them.” 514 U.S. at 244. The Court concluded that the

“judicial power is one to render dispositive judgments,”

and therefore the federal law “effects a clear violation of

separation-of-powers.” Id. at 219, 225.

In Plaut this Court unequivocally held that Congress

by statute cannot act retroactively to overturn or suspend

an existing final court judgment. Justice Scalia, writing

for the Court, stated: “Having achieved finality, however,

a judicial decision becomes the last word of the judicial

department with regard to a particular case or contro-

versy, and Congress may not declare by retroactive legis-

lation that the law applicable to that very case was

something other than what the court said it was.” Id. at

227 (emphasis in original).

Just as Congress cannot by legislation overturn a

final judicial judgment, nor can it order that a federal

court suspend or lift its own judgment. Indeed, in United

States v. Klein, 80 U.S. (13 Wall.) 128 (1872), this Court

held that Congress cannot mandate how federal courts

act in particular cases. In 1863, Congress adopted a stat-

ute providing that individuals whose property was seized

during the Civil War could recover the property, or com-

pensation for it, upon proof that they had not offered aid

or comfort to the enemy during the war. The Supreme

Court subsequently held that a presidential pardon ful-

filled the statutory requirement of demonstrating that an

individual was not a supporter of the rebellion. United

States v. Padelford, 76 U.S. (9 Wall.) 531 (1869).

In response to this decision and frequent pardons

issued by the president, Congress quickly adopted a stat-

ute providing that a pardon was inadmissible as evidence

in a claim for return of seized property. Moreover, the

statute provided that a pardon, without an express dis-

claimer of guilt, was proof that the person aided the

rebellion and would deny the federal courts jurisdiction

over the claims. The statute declared that upon “proof of

such pardon .. . the jurisdiction of the court in the case

shall cease, and the court shall forthwith dismiss the suit

of such claimant.” 92 Stat. 2076.

The Supreme Court held that the statute was uncon-

stitutional. While acknowledging Congress’ power to cre-

ate exceptions and regulations to the Court’s appellate

jurisdiction, the Supreme Court said that Congress cannot

direct the results in particular cases. The Court stated:

“What is this but to prescribe a rule for the

decision of a cause in a particular way?.... Can

we do so without allowing one party to the

controversy to decide it in its own favor? Can

we do so without allowing that the legislature

may prescribe rules of decision to the judicial

department in the cases pending before it?.. . .

We think not. . . . We must think that Congress

has inadvertently passed the limit which sepa-

rates the legislative power from the judicial

power.” 80 U.S. at 146-47.

Thus, Klein stands for the basic proposition that Congress

cannot dictate the results in specific cases.

Together, decisions such as Hayburn’s Case, Plaut, and

Klein establish a fundamental and essential principle of

separation of powers: Congress cannot directly overturn

or suspend final federal court judgments or order that

federal courts take such an action. Professor Tribe clearly

explained this separation of powers principle: “Congress

can be said to usurp the judicial function and violate the

separation of powers if it undertakes to resolve an art. III

case or controversy with a party-specific legislative

decree imposing restrictions of its own.” Laurence H.

Tribe, American Constitutional Law 285 n.86 (3d ed. 2000).

Congress certainly may change the substantive statu-

tory law to be applied in future cases. Robertson v. Seattle

Audubon Society, 503 U.S. 429 (1992). In cases involving

injunctions under federal statutes, Congress can alter the

underlying law and thereby cause reconsideration of the

prospective relief. Pennsylvania v. Wheeling & Belmont

Bridge Co., 59 U.S. (18 How.) 421 (1855) (discussed more

fully below in section B); Plaut v. Spendthrift Farm, Inc.,

514 U.S. at 232. But what Congress never may do is

10

retroactively overturn or suspend a final judicial judg-

ment or order federal courts to do this. Nor may Con-

gress direct a federal court to decide a case in a particular

manner.

To accord such authority to Congress would be to

alter dramatically the federal balance of power. For

instance, in Cooper v. Aaron, 358 U.S. 1 (1958), this Court

affirmed a federal court’s desegregation order, an injunc-

tion similar in character and type to the remedy imposed

in this case. It is unthinkable that Congress, by statute,

could have suspended the federal court’s injunction or

ordered the district court to lift it, even for a short period

of time. Such legislation would strike at the very core of

the federal judicial power. See Henry Hart, The Power of

Congress to Limit Jurisdiction of Federal Courts: An Exercise

in Dialectic, 66 Harv. L. Rev. 1362, 1402 (1953) (Congress

cannot act in a manner that will destroy the essential

function of the federal courts in the constitutional sys-

tem).

B. The Automatic Stay Provision of the Prison

Litigation Reform Act, §3626(e)(2), Is a Federal

Law that Retroactively Suspends a Final Court

Judgment Remedying Constitutional Violations

The Prison Litigation Reform Act provides for the

termination of prospective court orders concerning

prison conditions two years after their entry, upon

motion from the defendant, unless a federal court deter-

mines that the “prospective relief remains necessary to

correct a current and ongoing violation of the federal

right.” 18 U.S.C. §3626(b)(2). The sole issue before the

11

Court in this case is the constitutionality of §3626(e)(2)

which provides that a federal court must decide upon a

defendant’s motion within 30 days or the existing final

judgment of the court is automatically stayed. The law

allows a federal court to extend the time period by no

more than 60 days, but provides that “[n]o postponement

shall be permissible because of general congestion of the

court’s calendar.” 18 U.S.C. §3626(e)(3).

Section (e)(2) compels that the court rule in favor of

the government and lift the injunction if it cannot meet

the requirements of §3626 within 30, or at most 90, days.

This is Congress directing a result for a particular party,

at least temporarily, in constitutional litigation. This is

exactly what Klein forbids. It obviously would be uncon-

stitutional under Klein for Congress to enact a law requir-

ing that federal courts decide all motions for summary

judgment in civil rights cases within 90 days and mandat-

ing that if a court fails to do so it must rule in favor of the

government. This is what §3626(e)(2) does in compelling

the court to grant relief to the government by lifting the

injunction against it if the court does not act within the

30/90 day period.

Moreover, and constitutionally even worse, §(e)(3)

does this retroactively, ordering that the federal court

rule in favor of the government by suspending an exis-

ting injunction. In applying the separation of powers

principle described above to the automatic stay provision

in §3626(e)(2), this Court should ask three questions: 1) Is

there a final judgment of a federal court? 2) Is the federal

statute being applied retroactively? 3) Does the federal

statute suspend a final judgment of a federal court or

order a federal court to do this? If the answer to all three

12

questions is affirmative, the law is clearly unconstitu-

tional under Hayburn’s Case, Plaut, and Klein.

All three of these factors unquestionably are present

here. First, there is no doubt in this case that the federal

district court entered a final judgment concerning the

Pendleton Correctional Facility and that the injunction

was affirmed by the United States Court of Appeals for

the Seventh Circuit. French v. Owens, 777 F.2d 1250, 1258

(7th Cir. 1985). It, of course, is firmly established that

such court orders are final judgments of federal courts.

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

(1992). Rufo is explicit that the ability of a court of equity

to reconsider injunctive relief does not lessen its status as

a final judgment. Id. at 391. In fact, all federal court

judgments in civil cases are potentially subject to recon-

sideration pursuant to Federal Rule of Civil Procedure

60(b), but they nonetheless, of course, are regarded as

final judgments.

Second, nor is there question that §3626(e)(2) is being

applied retroactively in this case. The federal court order

and judgment concerning the Pendleton Correctional

Facility were entered before the Prison Litigation Reform

Act was enacted in 1996. This is not Congress attempting

to regulate the content and terms of future injunctions to

be issued by the federal courts. Rather, this is a federal

law that applies retroactively to judgments entered before

its adoption. See Landgraf v. USI Films Products, 511 U.S.

244, 270 (1994) (retroactive legislation is that which

“attaches new legal consequences to events completed

before its enactment.”)

oe

13

Third, §3626(e)(2) suspends a federal court judgment

if a federal court does not act within 30 days of a defen-

dant’s motion, a time period which can be extended by

no more than 60 days. There are only two possible ways

to characterize §3626(e)(2): either it is a federal law that

directly suspends final judgments if a court does not act

within the time limits or it is a federal law that com-

mands federai courts to issue a stay of their prior judg-

ments if the court does not act within the 30/90 day time

periods. Either characterization is a federal law that effec-

tively suspends a final federal court judgment and thus

violates separation of powers.

The final judgment of the federal court in this case is

operative and in effect until the federal law, §3626(e)(2),

mandates its suspension. Hayburn’s case expressly

declares that Congress cannot mandate “suspension” of a

federal court order. 2 U.S. (2 Dall.) at 412. Plaut and Klein

are clear that Congress cannot order courts to do this. For

this reason, the Sixth Circuit properly found that requir-

ing a federal court to comply with the automatic stay

provision in §3626(e)(2) violates separation of powers

because it is “direct legislative suspension of orders of

article III courts.” Hadix v. Johnson, 144 F.3d 925, 941 (6th

Cir. 1998). Similarly, the Court of Appeals in this litiga-

tion correctly reasoned that “(e)(2) violates the separation

of powers principle because it is a direct legislative sus-

pension of a court order.” French v. Duckworth, 178 F.3d

437, 446 (7th Cir. 1999), cert. granted, 120 S.Ct. 578 (1999).

The State of Indiana argues that §3626(e)(2) “neither

legislatively suspends court orders nor mandates a rule

of decision.” Brief of Petitioners Charles B. Miller, et al.,

(“Pet.Br.”) at 18. The State argues that section (e)(2) is

14

simply a procedural device that operates prospectively.

This argument, however, ignores the purpose and effect

of section (e)(2): valid final orders of the court, entered as

a remedy to constitutional violations, will be suspended

solely because of the mandate of the federal statute. This

is exactly what Plaut forbids.

The cases relied upon by the State of Indiana, and

amici curiae in support of the State, are distinguishable

because none involved Congress retroactively suspend-

ing a final court judgment that had been imposed as a

remedy for constitutional violations. For example, Penn-

sylvania v. Wheeling & Belmont Bridge Co., did not involve

a federal law that retroactively suspended a federal court

decision. In fact, that decision expressed the separation of

powers principle that is at stake in this case. The Court

declared: “[I]t is urged, that the act of Congress cannot

have the effect and operation to annul the judgment of

this court already rendered, or the rights determined

thereby. . . . This, as a general proposition, is certainly not

to be denied, especially as it respects adjudication upon

the private rights of parties. When they have passed into

judgment the right becomes absolute, and it is the duty of

the court to enforce it.” 59 U.S. (18 How.) at 431.

Wheeling Bridge involved a court order requiring that

a bridge be raised or removed because it was a hazard to

navigation and a public nuisance in its existing condition.

Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13

How.) 518 (1852). Congress subsequently amended the

law to legalize the bridge. The Court then upheld this as

constitutional based on Congress’ authority to alter the

substantive law that was the basis for the injunction.

ee —_—

15

Wheeling Bridge thus stands for the simple proposi-

tion that where Congress has the authority to alter the

underlying substantive law relied upon for prospective

relief, a court has the authority to reconsider its earlier

order in light of the change in the law. This is what Plaut

was referring to when it cited Wheeling Bridge as allowing

Congress to alter “the prospective effect of injunctions

entered by Art. III courts.” 514 U.S. at 232. In this case,

however, the underlying substantive law is the Constitu-

tion, obviously not subject to change by Congress. More-

over, Wheeling Bridge did not involve Congress mandating

the suspension of any federal court order.

Similarly, the other examples relied upon by the State

and amici involved situations where Congress prospec-

tively modified federal court authority in statutory cases.

For instance, the State invokes Lauf v. E.G. Shiner & Co.,

303 U.S. 323 (1938), which upheld a federal law that

required specific federal court findings before the court

may issue an injunction in labor cases. Pet.Br. at 20-21.

However, this federal law concerned federal court power

in enforcing federal statutory rights. The law also was

prospective in its application and suspended no final

judgments. Here, though, §3626(e)(2) applies retroac-

tively upon court orders in constitutional cases.

The distinction between Congress’ authority to regu-

late prospectively in statutory cases and Congress’ power

to act retroactively in constitutional cases is crucial.

Where Congress creates the right and provides the rem-

edy, Congress has broad latitude to prescribe the terms

and scope of the relief in future cases. But where the

Constitution creates the right and a federal court has

entered a final judgment, Congress does not have the

16

authority to suspend it. This Court has recognized the

difference between constitutional and statutory rights rel-

ative to Congress’ power, such as in stating: “[T]here is a

critical difference between rights created by federal stat-

ute and rights recognized by the Constitution. . . . [SJuch

a distinction seems to us to be necessary in light of the

delicate accommodations required by the principle of

separation of powers reflected in Article III.” Northern

Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50,

83-84 (1982).

Simply put, §3626(e)(2) automatically suspends final

judgments of federal courts in constitutional cases if a

federal court does not act within 30/90 days of the defen-

dant’s motion. No case relied upon by Petitioners

involved a federal law retroactively suspending a final

judgment of a federal court in a constitutional case. See

Plaut v. Spendthrift Farm Inc., 514 U.S. at 240 (“We know of

no previous instance in which Congress has enacted ret-

roactive legislation requiring an Article III court to set

aside a final judgment, and for good reason. The Consti-

tution’s separation of legislative and judicial powers

denies it the authority to do so.”)

C. The Automatic Stay Provision of the Prison

Litigation Reform Act, §3626(e)(2), Is Uncon-

stitutional

Section 3626(e)(2) means that the federal court’s

judgment in this case must be suspended by the federal

district court if 1! does not act within 30/90 days of the

defendant’s motion. A federal law that orders the suspen-

sion of a court order is unconstitutional, for the reasons

17

explained above, and thus amici urge this Court to affirm

the Seventh Circuit. Congress is compelling federal courts

to rule in favor of the government, and lift injunctions

against them, if the courts cannot meet the time limits.

Under cases such as Klein, Congress violates separation of

powers when it directs the judiciary to decide cases in a

particular way.

The State argues that Congress frequently sets time

limits for court actions and §3626(e)(2) is no different.

The State, for example, points to the time limits on tem-

porary restraining orders in Federal Rule of Civil Pro-

cedure 65(b), which provides that a federal court’s

temporary restraining order automatically expires after

10 days, with one possible 10-day extension, if the court

has not held a hearing with notice. Pet.Br. at 20. The State

also points to the Norris-Laguardia Act, 29 U.S.C. §107,

which provides that a temporary restraining order in a

labor dispute “shall be effective for no longer than five

days and shall become void at the expiration of said five

days.” Judge Easterbrook, in his dissent from the denial

of a rehearing en banc, provided a long list of statutes

that impose time limits on federal court judges. 178 F.3d

at 451-453 (Easterbrook, J., dissenting).

No one denies that Congress can impose time limits

on federal courts in some circumstances. However, what

Congress cannot do is enforce the time limits by ordering

the suspension of final court judgments. None of the

other time limits mentioned by the State or described by

Judge Easterbrook involved Congress retroactively manda-

ting the stay of a federal court’s final order and judg-

ment. There may be many types of time limits that can be

imposed, and even many ways of enforcing the limits,

18

but one thing that Congress clearly cannot do without

violating separation of powers is compel suspension of a

final federal cov~ judgment.

Nor may Congress use time limits to direct results for

particular parties as it has done here. A simple example is

illustrative. It can be assumed that Congress has the

constitutional authority to create a Term of the Supreme

Court and that it could require that the Court decide all

cases on its docket by June 30 of each year. However, it

surely would be unconstitutional if the federal law said

that all cases not decided by June 30 must be decided in

favor of the government. Yet, that is exactly what

§3626(e)(2) does: it imposes a time limit and requires that

any case not resolved within it be decided in favor of the

government by suspending the prior final judgment.

Moreover, whatever authority Congress has to set the

terms and conditions of future injunctions, Congress can-

not retroactively impose new requirements that have the

effect of overturning final court orders. As this Court

explained in Plaut: “It is no indication whatever of the

invalidity of the constitutional rule which we announce,

that it produces unhappy consequences when a legisla-

ture lacks foresight, and acts belatedly to remedy a defi-

ciency in the law.” 514 U.S. at 237.

Congress almost certainly could not have adopted a

constitutional law that required federal courts to vacate

every final judicial order concerning prison conditions

two years after entry. This would be exactly what is

forbidden by cases such as Hayburn’s Case, Plaut, and

Klein. Yet, the 30/90 days time period specified in section

(e)(2) has virtually the same effect. As one commentator

19

explained concerning the provision: “Congress has

reopened ‘final decisions’ by retroactive changes to the

rules of decision, and virtually compelled a decision

favorable to the governmental entity involved through

the short time permitted for the judge to make the

required findings necessary to support continuation of a

consent decree.” Ira Bloom, Prisons, Prisoners, and Pine

Forests: Congress Breaches the Wall Separating Legislative

from Judicial Power, 40 Ariz. L. Rev. 389, 410 (1998).

Indeed, as the Seventh Circuit noted, a government

defendant, simply by delaying during the 30/90 day

period can succeed in forcing the district court to sus-

pend its earlier judgment. The Seventh Circuit observed:

“Yet the state need only drag its feet or confront genuine

difficulty in responding to requests for information that is

relevant to the question whether the decree continues to

be necessary, as defined by (b)(2) and (b)(3), in order to

win its stay. . . . Section 3626 constrains the authority of

the district courts to impose and sustain prospective

relief.” 178 F.3d at 444.

Thus, the practical effect of §3626(e)(2) is to order

federal courts to rule in favor of defendants, at least on

their motions to stay final court orders concerning prison

conditions. This is exactly what cases such as Plaut and

Klein forbid Congress from doing. To accord Congress

this authority here in prisoner litigation, would mean that

Congress could order the lifting of judicial orders in any

cases, ranging from business litigation to school deseg-

regation cases. It would give Congress unprecedented

ability to not only specify time limits, but to enforce them

by directing results and by lifting final judicial judg-

ments.

20

In Hayburn's Case, in the earliest days of American

history, Supreme Court declared that “revision and con-

troul” of judgments by Article III courts is “radically

inconsistent with the independence of that judicial power

which is vested in the courts.” 2 U.S. (2 Dall.) at 413

(opinion of Iredell, J.). Almost 200 years later, in Plaut,

this Court said that “the doctrine of separation of powers

is a structural safeguard rather than a remedy to be ap; ied

only when specific harm, or risk of specific harm, can be

identified. In its major features (of which the conclusive-

ness of judicial judgments is assuredly one) it is a pro-

phylactic device, establishing high walls and clear

distinctions.” 514 U.S. at 239. The Court found the federal

law in Plaut “unconstitutional to the extent that it

requires federal courts to reopen final judgments entered

before its enactment.” Id. at 240.

Amici curiae urge the Court to reaffirm these princi-

ples and to find §3626(e)(2) unconstitutional precisely

because it requires federal courts to reopen final judg-

ments - and indeed to suspend those judgments -

entered before its enactment.

S

pa or

21

CONCLUSION

For these reasons, the Court should affirm the judg- -

ment of the Seventh Circuit holding §3626(e)(2) of the

Prison Litigation Reform Act unconstitutional.

Respectfully submitted,

ERWIN CHEMERINSKY

UNIversiTy OF SOUTHERN

CauiroRNIA Law SCHOOL

699 Exposition Blvd.

Los Angeles, CA 90089-0071

(213) 740-2539

Attorney for Amici Curiae