Appendix — Benjamin v. Kerik

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[CORRECTED COPY}

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 1996

(Argued en banc: February 25, 1998

Decided: March 23, 1999)

Docket No. 96-7957

JAMES BENJAMIN et al.,

Plaintiffs-Appellants,

—V—

MICHAEL JACOBSON, Commissioner of the Department

of Correction of the City of New York, et al.,

Defendants-Appellees.

Before:

WINTER, Chief Judge, and OAKES, KEARSE, WALKER,

MCLAUGHLIN, JACOBS, LEVAL, CALABRESI,

CABRANES, and PARKER, Circuit Judges.

2a

Rehearing en banc of an appeal from an order of the

United States District Court for the Southern District of

New York, Harold Baer, Jr., Judge, upholding constitu-

tionality of immediate termination provision of Prison

Litigation Reform Act of 1995, 18 U.S.C. § 3626(b)(2)

(Supp. II 1996), and vacating consent decrees. See 935

F. Supp. 332 (1996).

Affirmed as to constitutionality, reversed as to vacatur

of consent decrees, and remanded for further proceed-

ings to determine whether any forward-looking provi-

sions of the consent decrees should be continued.

Judge Jacobs concurs in the majority opinion, and

files a separate opinion joined by Chief Judge Winter

and Judges Kearse, Walker, McLaughlin, Cabranes, and

Parker.

Judge Leval concurs in all but Part II.A. of the major-

ity opinion, and files a separate opinion joined by Judge

Oakes and joined in part by Judge Calabresi.

Judge Calabresi concurs in the result, and files a sep-

arate opinion.

JOHN BOSTON, New York, New York (Daniel

L. Greenberg, Sarah Kerr, Dori A. Lewis,

Marta Nelson, The Legal Aid Society,

Prisoners’ Rights Project, New York,

New York, on the brief), for Plaintiffs-

Appellants.

LORNA B. GOODMAN, Assistant Corporation

Counsel, New York, New York (Jeffrey

D. Friedlander, Acting Corporation Coun-

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sel of the City of New York, June R.

Buch, Laura A. Chamberlain, Florence A.

Hutner, Assistant Corporation Counsel,

on the brief), for Defendants-Appellees.

SARA L. SHUDOFSKY, Assistant United

States Attorney, New York, New York

(Mary Jo White, United States Attorney

for the Southern District of New York,

New York, New York, Frank W. Hunger,

Assistant Attorney General, Robert M.

Loeb, Attorney, Civil Division, Depart-

ment of Justice, Washington, D.C.,

James L. Cott, Assistant United States

Attorney, New York, New York, on the

brief), for Intervenor United States of

America.

DENNIS C. VACCO, Attorney General of the

State of New York, Albany, New York

(Peter H. Schiff, Deputy Solicitor Gen-

eral, Martin A. Hotvet, Assistant Attor-

ney General, Albany, New York; Bill

Pryor, Attorney General, State of

Alabama, Montgomery, Alabama; Grant

Woods, Attorney General, State of Ari-

zona, Phoenix, Arizona; Richard Blu-

menthal, Attorney General, State of

Connecticut, Hartford, Connecticut; M.

Jane Brady, Attorney General, State of

Delaware, Wilmington, Delaware;

Robert A. Butterworth, Attorney Gen-

eral, State of Florida, Tallahassee,

. Florida; Thurbert E. Baker, Attorney

General, State of Georgia, Atlanta,

Georgia; Gus F. Diaz, Acting Attorney

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General, Territory of Guam, Agana,

Guam; Margery S. Bronster, Attorney

General, State of Hawaii, Honolulu,

Hawaii; James E. Ryan, Attorney Gen-

eral, State of Illinois, Chicago, Illinois;

Thomas J. Miller, Attorney General,

State of Iowa, Des Moines, Iowa; Carla

J. Stovall, Attorney General, State of

Kansas, Topeka, Kansas; Richard P.

Ieyoub, Attorney General, State of

Louisiana, Baton Rouge, Louisiana; J.

Joseph Curran, Jr., Attorney General,

State of Maryland, Baltimore, Maryland;

Scott Harshbarger, Attorney General,

Commonwealth of Massachusetts,

Boston, Massachusetts; Frank J. Kelley,

Attorney General, State of Michigan,

Lansing, Michigan; Mike Moore, Attor-

ney General, State of Mississippi, Jack-

son, Mississippi; Joseph P. Mazurek,

Attorney General, State of Montana,

Helena, Montana; Don Stenberg, Attor-

ney General, State of Nebraska, Lincoln,

Nebraska; Frankie Sue Del Papa, Attor-

ney General, State of Nevada, Carson

City, Nevada; Philip T. McLaughlin,

Attorney General, State of New Hamp-

shire, Concord, New Hampshire; Tom

Udall, Attorney General, State of New

Mexico, Santa Fe, New Mexico; Beity

D. Montgomery, Attorney General, State

of Ohio, Columbus, Ohio; D. Michael

Fisher, Attorney General, Common-

wealth of Pennsylvania, Harrisburg,

Pennsylvania; Jeffrey B. Pine, Attorney

Sa

General, State of Rhode Island, Provi-

dence, Rhode Island; Jan Graham, Attor-

ney General, State of Utah, Salt Lake

City, Utah; Mark F. Earley, Attorney

General, Commonwealth of Virginia,

Richmond, Virginia; and James E.

Doyle, Attorney General, State of Wis-

consin, Madison, Wisconsin, of counsel),

filed a brief for Amici Curiae States of

New York, Alabama, Arizona, Connecti-

cut, Delaware,~ Florida, Georgia,

Hawaii, Illinois, lowa, Kansas,

Louisiana, Maryland, Michigan, Mis-

sissippi, Montana, Nebraska, Nevada,

New Hampshire, New Mexico, Ohio,

Rhode Island, Utah, and Wisconsin, the

Commonwealths of Massachusetts,

Pennsylvania, and Virginia, and the Ter-

ritory of Guam, in support of Defen-

dants-Appellees.

KEARSE, Circuit Judge, with whom Chief Judge

WINTER, and Judges WALKER, MCLAUGHLIN, JACOBS,

CABRANES, and PARKER join, and with whom Judges

OAKES and LEVAL join except for Part II.A.:

Plaintiffs James Benjamin et al., who are pretrial

detainees, appealed from an order of the United States

District Court for the Southern District of New York,

Harold Baer, Jr., Judge, entered pursuant to the Prison

Litigation Reform Act of 1995 (“PLRA” or the “Act’”),

Pub L. No. 104-134, 110 Stat. 1321-66 §§ 801-810

(1996), codified at 18 U.S.C. § 3626 (Supp. II 1996); see

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also 18 U.S.C.A. §§ 3626(b)(3), (e)(2), (e)(3) (West

Supp. 1998), vacating certain consent decrees entered in

1978 and 1979 (the “Consent Decrees” or the “Decrees’”’)

in actions brought by classes of pretrial detainees against

defendant officials of the City of New York (collectively

the “City”) to challenge the conditions of confinement of

persons held in City institutions awaiting trial or other

disposition of criminal charges. The district court

rejected plaintiffs’ challenges to the constitutionality of

the PLRA’s provision requiring the termination of con-

sent decrees not meeting criteria set by the Act, vacated

the Consent Decrees, and dissolved the injunctions that

had been entered pursuant to the Decrees. See Benjamin

v. Jacobson, 935 F. Supp. 332 (1996) (“Benjamin I’). A

unanimous panel of this Court upheld the district court’s

rejection of the constitutional challenges but reversed

the vacatur of the Decrees, ruling that the Act does not

call for the termination of consent decrees not meeting

the requirements of the Act, but merely limits the power

of federal courts to enforce those decrees and leaves the

decrees intact and enforceable in state courts. See Ben-

jamin v. Jacobson, 124 F.3d 162 (1997) (“Benjamin IT’).

On en banc reconsideration, we conclude that the PLRA

requires the termination of consent decrees that do not

meet the criteria established by the Act; that that pro-

vision does not violate the constitutional principle of

separation of powers or infringe the due process, equal

protection, and other constitutional rights invoked by

plaintiffs; and that plaintiffs should be afforded an

opportunity to show that, under the Act’s criteria, the

continuation of prospective relief is warranted. We

therefore vacate the decision of the panel; we affirm in

part and reverse in part the order of the district court and

remand for further proceedings.

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I. BACKGROUND

This action comprises seven related class actions

brought during the mid-1970s by pretrial detainees in

certain New York City jails, alleging that conditions of

their confinement violated their constitutional rights. See

Benjamin v. Malcolm, 75 Civ. 3073 (S.D.N.Y.) (Rikers

Island House of Detention for Men, now called the

James A. Thomas Center); Forts v. Malcolm, 76 Civ. 101

(S.D.N.Y.) (Rikers Island Correctional Institution for

Women, now called the Rose M. Singer Center);

Ambrose v. Malcolm, 76 Civ. 190 (S.D.N.Y.) (Bronx

House of Detention for Men); Maldonado v. Ciuros, 76

Civ. 2854 (S.D.N.Y.) (Rikers Island Adolescent Recep-

tion and Detention Center); Detainees of the Brooklyn

House of Detention for Men v. Malcolm, 79 Civ. 4913

(E.D.N.Y.); Detainees of the Queens House of Detention

for Men v. Malcolm, 79 Civ. 4914 (E.D.N.Y.); Rosenthal

v. Malcolm, 74 Civ. 4854 (S.D.N.Y.) (Rikers Island

Adult Mental Health Unit). The Consent Decrees were

designed “to ensure that prison conditions became and

remained safe and humane.” Benjamin I, 935 F. Supp. at

337. The Decrees, inter alia,

ensure that detainee mail and property are handled

properly, and that procedures in concert with con-

stitutional protections are followed during detainee

cell and body searches. On an institutional level, the

Consent Decrees seek to maintain the physical plant

of the jails in a condition safe for human habitation.

They mandate that attention be given to vermin and

insect control, sanitation, maintenance and refuse

removal. Other provisions govern food services to

the detainees and ensure that the detainees are ade-

quately fed while in custody, with food that is pre-

pared and served in a sanitary environment.

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Id. As noted in Benjamin II, “[t]hese decrees have gen-

erated a judicially administered structure comprising

over ninety related court orders and extending to more

than thirty discrete areas of prison administration.” 124

F.3d at 165.

A. The PLRA and the Proceedings in the District Court

Effective April 26, 1996, Congress enacted the PLRA

which, inter alia, provides that in civil actions arising

under federal law challenging conditions in prisons

(including pretrial detention facilities) “prospective

relief” may not be granted in the absence of certain find-

ings:

[p]rospective relief in any civil action with respect

to prison conditions shall extend no further than

necessary to correct the violation of the Federal

right of a particular plaintiff or plaintiffs. The court

shall not grant or approve any prospective relief

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. The court shall give substantial

weight to any adverse impact on public safety or the

operation of a criminal justice system caused by the

relief.

18 U.S.C. § 3626(a)(1)(A). With respect to judgments

entered prior to the effective date of the PLRA, the Act

provides for the termination of prospective relief that

was ordered without the court having made these find-

ings as to need, narrowness, and intrusiveness:

IMMEDIATE TERMINATION OF PROSPECTIVE

RELIEF.—In any civil action with respect to prison

Oe ee ee ee

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conditions, a defendant or intervener shall be enti-

tled to the immediate termination of any prospective

relief if the relief was approved or granted in the

absence of a finding by the court that the relief is

narrowly drawn, extends no further than necessary

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

the least intrusive means necessary to correct the

violation of the Federal right.

Id. § 3626(b)(2) (“termination provision”). However, the

Act provides that even if the need-narrowness-intru-

siveness findings had not been made in connection with

the entry of the decree, the prospective relief is not to be

terminated

if the court makes written findings based on the

record that prospective relief remains necessary to

correct a current and ongoing viviation of the Fed-

eral right, extends no further than necessary to cor-

rect the violation of the Federal right, and that the

prospective relief is narrowly drawn and the least

intrusive means to correct the violation.

18 U.S.C.A. § 3626(b)(3) (West Supp. 1998), as

amended and made applicable to all pending cases, see

Pub. L. No. 105-119, § 123(a)(2) & (b), 111 Stat. 2440,

2470 (Nov. 26, 1997) (changing “current or ongoing” to

“current and ongoing”).

In the Act, “the term ‘prospective relief’ ” is defined

to “mean J all relief other than compensatory monetary

damages,” 18 U.S.C. § 3626(g)(7), and “ ‘relief’ means

all relief in any form that may be granted or approved by

the court, and includes consent decrees but does not

include private settlement agreements,” id. § 3626(g)(9).

The term “private settlement agreement” is defined to

“mean[ ] an agreement entered into among the parties

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that is not subject to judicial enforcement other than the

reinstatement of the civil proceeding that the agreement

settled,” id. § 3626(g)(6); the term “consent decree” is

defined to “mean|[ ] any relief entered by the court that is

based in whole or in part upon the consent or acquies-

cence of the parties but does not include private settle-

ment agreements,” id. § 3626(g)(1).

Shortly after the PLRA’s effective date, the City

moved fcr the immediate termination of the Consent

Decrees and related orders on the ground that the

Decrees had been entered without the need-narrowness-

intrusiveness findings required by the PLRA. Plaintiffs

conceded that no such findings had been made and that

the requisite findings would not be supported by the

record in its present state; but they challenged the con-

stitutionality of the Act as applied to existing consent

decrees, arguing principally that it violates the consti-

tutional principle of separation of powers and denies

them equal protection and due process. In support of

their separation of powers contention, plaintiffs argued

that the Act requires the reopening of final judgments

and thereby exceeds Congress’s power as elucidated in

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

(“Plaut”), and impermissibly prescribes a rule of deci-

sion without changing the underlying substantive law,

contrary to the principle established in United States v.

Klein, 80 U.S. (13 Wall.) 128 (1872). They also argued

that the Act impermissibly deprives the federal courts of

their Article III power to remedy violations of consti-

tutional rights. Plaintiffs requested an opportunity, if the

court rejected their constitutional arguments, to create a

factual record as to the current conditions in City deten-

tion facilities in order to permit the court to make the

findings required by 18 U.S.C.A. § 3626(b)(3) (West

lla

Supp. 1998) for the continuation of the injunctive relief

granted by the Consent Decrees. The United States inter-

vened in the action in order to defend the constitution-

ality of the Act. See 28 U.S.C. § 2403(a).

In Benjamin I, the district court upheld the constitu-

tionality of the Act’s termination provision and granted

the City’s motion. See 935 F. Supp. at 358. The court

reasoned that the Act does not violate the principle bar-

ring Congress from reopening final judgments because

a consent decree calling for continued compliance with

prescribed standards is not a final judgment in the same

sense in which a judgment for monetary relief would be

final:

Where the suit is an action at law for damages and

the judgment has become final for res judicata pur-

poses, the judgment is no longer subject to con-

gressional enactments. See Plaut, [514 U-S. at

225-26]. Where the judgment imposes an executory

decree, though, and the court retains supervisory

jurisdiction, the judgment’s prospective effects are

not final for separation-of-powers purposes.

Benjamin I, 935 F. Supp. at 345. The district court

viewed “the Consent Decrees [as] executory judgments

with prospective effects,” and noted that they “impose[d]

injunctive relief over which this Court has retained

Supervisory jurisdiction.” Jd. at 347. The court con-

cluded that the Decrees were subject to alteration by

Congress without infringing the principle announced by

Plaut.

The district court also found no violation of the prin-

ciple enunciated in United States v. Klein. It reasoned

that “while Congress did not amend the substantive law

with respect to permissible prison conditions,” it also did

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not prescribe a substantive rule of decision but merely

“change[d] the law governing the district court’s reme-

dial powers.” Benjamin I, 935 F. Supp. at 350. The court

also rejected the suggestion that the PLRA prevented the

courts from effectively remedying violations of consti-

tutional rights. It observed that the Act allows the courts,

on the condition that they make the requisite findings as

to relief, to “continue to define the scope of prisoners’

constitutional rights, review the factual record, apply the

judicially determined constitutional standards to the

facts as they are found in the record and determine what

relief is necessary to remedy the constitutional viola-

tions.” Jd. at 351.

The district court rejected plaintiffs’ due process argu-

ments, reasoning that because the Consent Decrees were

not “final” with respect to future conditions, plaintiffs

had no vested rights in their continued enforcement. See

id. at 356. The court rejected the equal protection argu-

ments, noting that prisoners are not a suspect class and

Stating, inter alia, that the Act was “supported by plau-

sible legitimate government interests and the means cho-

sen to advance these goals are rationally designed.” Jd.

at 354.

The court also denied plaintiffs’ request for an oppor-

tunity to present evidence as to the need for continuation

of the prospective relief provided for in the Decrees. It

stated that “[t]he statute provides for ‘immediate ter-

mination’ and based on the current record before the

Court, the defendants are entitled to vacatur of the Con-

sent Decrees.” Jd. at 357. The court entered an order

Stating that “the Consent Decrees in these cases are

VACATED pursuant to 18 U.S.C. § 3626(b)(2).” 935 F.

Supp. at 358.

13a

Plaintiffs promptly asked the court to, inter alia,

rescind its vacatur of the Consent Decrees pending a

hearing as to the existence of continuing violations.

They argued that because of the course, complexity, and

time-pressures of the litigation, they had not had an

opportunity to present such evidence. In the alternative,

plaintiffs asked the court to certify questions of the Act’s

interpretation and constitutionality for an immediate

appeal and to stay its ruling pending appeal. The court

denied the motions for rescission and a hearing but

granted the motion for a stay until such time as a stay

pending appeal could be sought from this Court.

Plaintiffs promptly appealed, and this Court granted

motions for an expedited appeal and a stay.

B. The Panel Decision

Plaintiffs pursued their constitutional challenges to the

PLRA on appeal. In Benjamin II, the panel unanimously

affirmed the district court’s rejection of the constitu-

tional challenges to the termination provision, albeit on

different reasoning, and it reversed the vacatur of the

Consent Decrees. The panel based its conclusions on its

view that the Act does not require the termination of con-

sent decrees entered without the mandated need-narrow-

ness-intrusiveness findings; rather the panel concluded

that the Act merely prohibits federal courts from enforc-

ing such decrees and leaves parties free to seek enforce-

ment of the consent decrees in state courts.

The panel began by noting that the PLRA had been

enacted in part to answer the criticism that federal courts

had overstepped their authority in the context of prison

litigation. After quoting § 3626(b)(2)’s provision for “the

immediate termination of any prospective relief if the

relief was approved or granted in the absence of” the

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specified need-narrowness-intrusiveness findings, the

panel stated as follows:

This language can be read in either one of two

ways, each of which, if constitutionally valid, would

respond to the criticisms that led to the PLRA. The

first interpretation would limit the jurisdiction of

federal courts so that these courts could not in the

future enforce past consent decrees, except insofar

as the decrees were found to be tailored to a federal

right. The second would render null and void all

past federally approved prison consent decrees

unless these decrees met the requirement of being

narrowly tailored to a federal right.

The correct reading of the section turns on the

meaning of the words “termination of prospective

relief.” If “prospective relief” includes the past

Decrees themselves, then these are terminated and

annulled under the law. If, instead, “termination of

prospective relief” means that no future relief—that

is neither future enforcement nor articulation—is

available in federal courts under past Decrees, then

the Decrees remain valid, but no longer subject to

federal jurisdiction.

At a glance, the second interpretation seems plau-

sible. The statute defines “prospective relief” as “all

relief other than compensatory monetary damages.”

18 U.S.C. § 3626(g)(7). It also states that “the term

‘relief’ means all relief in any form that may

be granted or approved by the court, and includes

consent decrees but does not include private

settlement agreements.” 18 U.S.C. § 3626(g)(9)

(emphasis added). One could, therefore, maintain

that “prospective relief” includes the Decrees

because (1) “prospective relief” includes all relief

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except damages, (2) “relief” includes “consent

decrees,” and (3) consent decrees are not damages.

But, in fact, such a reading has significant lin-

guistic problems. Taken literally, it would imply

that the word “relief,” without more, includes

within it “private settlement agreements.” Yet it

would be a remarkable twisting of language to

describe a contract or an agreement as a form of

relief. We simply do not talk that way. The ordinary

way of talking and writing is to speak of relief

available under or pursuant to a private settlement

agreement. Since it is clear that private settlement

agreements are not a form of relief, why does the

definition expressly exclude them? Under the cir-

cumstances, it makes more sense to read the defi-

nitional phrase as saying “the term ‘relief’ means all

relief in any form that may be granted or approved

by the court, and includes [all relief granted pur-

suant to] consent decrees but does not include

[relief granted pursuant to] private settlement agree-

ments.” While one can define anything to mean

anything, courts should be reluctant to read a defi-

nitional sentence to mean something that makes

another part of the same sentence meaningless or

completely superfluous.

124 F.3d at 166-67 (emphases and brackets in original).

The panel found that its second hypothesized interpre-

tation (i.e., that the Act requires annulment of past

federal consent decrees not narrowly tailored to the vin-

dication of a federal right) created serious separation of

powers problems, for “[uJnder the second interpretation,

the termination provision will strip the plaintiffs of all of

the protections they negotiated into the Consent Decrees

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except for those narrowly tailored to federal rights.” /d.

at 168.

Instead, reasoning that “federal consent decrees are

not only federal court judgments but also, and sepa-

rately, contracts arising under state law,” the panel

adopted its first interpretation (i.e., that the PLRA sim-

ply eliminates the federal courts’ enforcement jurisdic-

tion), concluding that the “underlying contract, in its

time made into a judgment, is left untouched.” /d. at

178. The panel concluded that the PLRA “simply

force[s] the plaintiffs to seek redress for the non-federal

aspects of the Decrees in state court as opposed to fed-

eral court.” Jd. at 168.

The panel also concluded that in light of its interpre-

tation that the Act “does not annul the underlying

Decrees, but, instead, only changes the forum in which

they can be enforced,” id. at 174, plaintiffs’ constitutional

challenges should be rejected. See, e.g., id. at 170, 173,

174, 176-77 (separation of powers); id. at 176 (due pro-

cess); id. at 177 n.18 (due process and equal protection).

In sum, the panel concluded that “the non-federal

aspects of the Consent Decrees are hereafter not to be

enforced by the federal courts,” but that the plaintiffs

“should be able to get all the relief from state courts,

including specific performance, that had previously been

available to them federally under the Consent Decrees.”

Id. at 178. “[W]hile the defendants may be entitled to

immediate termination of prospective relief from the fed-

eral courts, there is nothing to prevent the plaintiffs

from seeking the enforcement of the Consent Decrees in

state courts.” Id. at 165 (emphases in original). In light

of its conclusion that prospective relief entered without

the required need-narrowness-intrusiveness findings

need not be terminated, and that the Act merely requires

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that enforcement of that relief be sought in state court,

the panel reversed the district court’s vacatur of these

Consent Decrees and ruled that plaintiffs are entitled, at

their option, to have an evidentiary hearing in the dis-

trict court on their allegations of current and ongoing

violations of federal rights or to “seek enforcement of

the Decrees in their entirety in state court.” Jd. at 180.

C. Rehearing En Banc

The City petitioned for rehearing, with a suggestion

for rehearing en banc, arguing principally that the panel

had misinterpreted the PLRA, and in doing so had “viti-

ate[d] the redress that Congress sought to provide to

overburdened states and municipalities by transforming

a statute intended to protect defendants from extra-con-

stitutional burdens into one that ensures the perpetuation

of those burdens via the state courts.” (City Petition for

Rehearing at 3.) In December 1997, we agreed to rehear

the appeal en banc.

On rehearing, plaintiffs contend principally (1) that

Benjamin II’s construction of the PLRA as terminating

only the Decrees’ enforceability in federal, not state,

court, was correct, and (2) that this Court should

nonetheless conclude that the Act’s termination provi-

sion violates Article III of the Constitution and the prin-

ciple of separation of powers, and that application of the

termination provision to the Decrees denies them due

process and equal protection. They also urge, if the Act’s

termination provision is upheld, that they be given a

meaningful opportunity to present evidence to the dis-

trict court that the Decrees should be continued.

The City disagrees with Benjamin II’s interpretation of

the PLRA. It argues that the district court’s decision

upholding the constitutionality of the PLRA and vacat-

18a

ing the Decrees was correct, and it urges that the order

of the district court be affirmed. The State of New York

has filed a brief on behalf of itself and numerous other

States as amici curiae, supporting the position of the

City. The United States, as intervenor, has filed a brief

arguing that the Act is not unconstitutional, that the

panel opinion in Benjamin II should be reversed to the

extent that it does not uphold the PLRA as written, and

that the matter should be remanded to the district court

for further proceedings to determine the need for con-

tinuation of the future relief ordered in the Decrees.

For the reasons that follow, we conclude that the Act

provides for the termination, though not the annulment,

of consent decrees that do not meet the need-narrowness-

intrusiveness criteria established by the Act; that plain-

tiffs’ constitutional challenges to the termination pro-

vision were properly rejected; and that plaintiffs were

entitled to an opportunity to show, in accordance with

the Act, that any or all of the prospective relief ordered

by the Decrees should be continued. We therefore vacate

the panel decision, affirm the district court’s rejection of

plaintiffs’ constitutional challenges, reverse the district

court’s vacatur of the Consent Decrees, and remand for

further proceedings.

Il. INTERPRETATION OF THE PLRA

A. The Scope of the PLRA’s Termination Provisions

The PLRA sets limitations on, inter alia, the power

of the courts to continue certain forward-looking relief

in civil actions challenging conditions in prisons or pre-

trial detention facilities. It provides, in pertinent part, as

follows:

19a

(b) TERMINATION OF RELIEF. —

(2) IMMEDIATE TERMINATION OF PROSPEC-

TIVE RELIEF.—In any civil action with respect to

prison conditions, a defendant or intervener shall be

entitled to the immediate termination of any

prospective relief if the relief was approved or

granted in the absence of a finding by the court that

the relief is narrowly drawn, extends no further than

necessary to correct the violation of the Federal

right, and is the least intrusive means necessary to

correct the violation of the Federal right.

(3) LIMITATION.—Prospective relief shall not

terminate if the court makes written findings based

on the record that prospective relief remains nec-

essary to correct a current and ongoing violation of

the Federal 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.

(c) SETTLEMENTS .—

(1) CONSENT DECREES.—In any civil action

with respect to prison conditions, the court shall not

enter or approve a consent decree unless it complies

with the limitations on relief set forth in subsection

(a).

(2) PRIVATE SETTLEMENT AGREEMENTS.—

(A) Nothing in this section shall preclude parties

from entering into a private settlement agreement

that does not comply with the limitations on relief

set forth in subsection (a), if the terms of that agree-

20a

ment are not subject to court enforcement other than

the reinstatement of the civil proceeding that the

agreement settled.

(B) Nothing in this section shall preclude any

party claiming that a private settlement agreement

has been breached from seeking in State court any

remedy available under State law.

18 U.S.C. §§ 3626(b)(2), (c); 18 U.S.C.A. § 3626(b)(3)

(West Supp. 1998).

The most pertinent terms used in these provisions are

defined in the Act as follows:

(1) the term “consent decree” means any relief

entered by the court that is based in whole or in part

upon the consent or acquiescence of the parties but

does not include private settlements;

(5) the term “prison” means any Federal, State, or

local facility that incarcerates or detains juveniles or

adults accused of, convicted of, sentenced for, or

adjudicated delinquent for, violations of criminal

law;

(6) the term “private settlement agreement”

means an agreement entered into among the parties

that is not subject to judicial enforcement other than

the reinstatement of the civil proceeding that the

agreement settled;

(7) the term “prospective relief” means all relief

other than compensatory monetary damages;

(9) the term “relief” means all relief in any form

that may be granted or approved by the court, and

ns

2la

includes consent decrees but does not include pri-

vate settlement agreements.

18 U.S.C. §§ 3626(g)(1), (5), (6), (7), (9).

In interpreting a Congressional enactment, we gener-

ally assume that the ordinary meaning of language used

in the statute accurately expresses Congress’s purpose,

unless the statute contains a contrary indication. See,

e.g., FMC Corp. v. Holliday, 498 U.S. 52, 57 (1990). If

the statute includes an explicit Statutory definition, we

accord that definition controlling weight, see, e.g.,

Meese v. Keene, 481 U.S. 465, 484 (1987), even if it

varies from common usage, see, e.g., Western Union

Telegraph Co. v. Lenroot, 323 U.S. 490, 502 (1945).

The PLRA’s termination provision affects only

“prospective relief.” In order to determine whether that

provision is meant to be applied to consent decrees,

therefore, we look to the Act’s explicit definition of

prospective relief and, as necessary, to the definitions of

the terms to which that definition refers. The definition

of “prospective relief” does not refer in haec verba to

consent decrees but states simply that prospective relief

is any “relief” other than compensatory monetary dam-

ages. The definition of relief, however, expressly

“includes consent decrees.” 18 U.S.C. § 3626(g)(9). This

inclusion is reinforced by the definition of the term

“consent decree” itself, which “means [consensual court-

ordered] relief.” Jd. § 3626(g)(1). These definitions make

it doubly plain that a consent decree, to the extent that it

awards a remedy other than compensatory monetary

damages, constitutes prospective relief within the mean-

ing of the Act. We thus conclude that the termination

Provision applies to consent decrees.

22a

The Benjamin I] panel reached the opposite conclu-

sion principally because the definition of “relief” also

expressly excludes “private settlement agreements,” an

exclusion the panel found superfluous because one does

not ordinarily characterize an agreement as relief. We

Share the panel’s view that this is not a natural charac-

terization; nor do we think it entirely natural to charac-

terize a consent decree itself, as contrasted with the

decretal provisions it contains, as relief. The awkward-

ness in this instance does not, however, obscure

Congress’s intent. In defining relief to exclude private

settlement agreements (i.e., agreements that are not sub-

ject to court enforcement other than the reinstatement of

the civil proceeding that the agreement settled),

Congress simply excluded those agreements from the

governmental obligations that must be based on need-

narrowness-intrusiveness findings, and hence preserved

them from termination.

Congress may, of course, choose to formulate its

enactments in any of a number of ways. It might, for

example, state in haec verba that “A, B, C, and D are

prohibited.” Or it might state simply that “X is prohib-

ited,” and define “X” to mean “A, B, C, or D.” The

scope of both statutory prohibitions would be the same.

Congress’s selection of the definitional structure for the

PLRA, stating that the court must terminate “prospective

relief” not supported or supportable by need-narrowness-

intrusiveness findings, and defining prospective relief to

include consent decrees but to exclude private settlement

agreements, is the equivalent of a provision stating that

the court is to terminate consent decrees as to which

need-narrowness-intrusiveness findings have not been

and cannot be made, but it is not to terminate private set-

tlement agreements even if such findings could not be

ss —

23a

made. We think it clear from the Statutory terms distin-

guishing between consent decrees and private settlement

agreements that Congress intended to free governments

from judicial constraints not based on need-narrowness-

intrusiveness findings, but not to relieve them of their

private contractual obligations—however broad—that

are not judicially ordered.

We do not see any basis for inferring that Congress

meant federal consent decrees that are not based on

need-narrowness-intrusiveness findings to remain in

effect and amenable to enforcement in state courts. It

seems implausible that Congress meant to forbid a fed-

eral court to enforce these federal judgments but to

allow them to be enforceable in a state court. and the

language of the Act is contrary to any suggestion that a

decree not supported by the mandated findings is to be

allowed to remain in effect. Although the word “termi-

nation” is not defined in the Act, its ordinary meaning is

the antithesis of continuation.

We also note our disagreement with the Benjamin II

panel’s view that federal consent decrees not supported

by the mandated findings remain enforceable in state

courts on the theory that settlement agreements are both

private agreements and consent decrees. An agreement

leading to a consent decree is normally conditional, set-

ting out actions and forbearances to which the defendant

agrees and stating that the settlement is conditioned on

being so-ordered by the court. See, e.g., Benjamin vy.

Malcolm, 75 Civ. 3073 (S.D.N.Y. Nov. 29, 1978) (Stip-

ulation for Entry of Partial Final Judgment at 1 (“IT IS

HEREBY STIPULATED by and between the undersigned

attorneys for the plaintiffs and the defendants herein,

and subject to approval by the Court” (emphasis

added))). A plaintiff willing to settle constitutional

24a

claims by way of a consent decree seeks the assurance

that, if the defendant fails to fulfill its agreed obliga-

tions, those obligations will be enforceable through the

court’s exercise of its contempt power. We are not aware

of any practice whereby the plaintiffs, especially in insti-

tutional litigation involving constitutional claims for

injunctive relief, agree to a consent decree and also

agree—either in the same document or in a separate doc-

ument—to give up their claims unconditionally in

exchange for undertakings by the defendants that would

not be enforceable except through the commencement of

a new lawsuit for breach of contract.

Where the parties have made an agreement to settle

conditional on approval by the federal court, there is no

enforceable agreement if the condition fails. The parties

may of course enter into an agreement that is not con-

ditioned on such approval, but that would be a different

agreement from an accord envisioning a consent decree.

The court’s approval of any judgment, whether litigated

or consensual, is of course subject to change if the con-

ditions underlying the judgment change. See, e.g., Sys-

tem Federation No. 91, Railway Employes’ Department,

AFL-CIO v. Wright, 364 U.S. 642, 647 (1961) (“System

Federation”) (“court will not continue to exercise its

powers [ Junder [a consent decree] when a change in law

or facts has made inequitable what was once equitable”);

Fed. R. Civ. P. 60(b)(5) (“court may relieve a party .

from a final judgment ... {on a showing that]

. it is no longer equitable that the judgment should

have prospective application”).* And if the federal

a So far as we are aware, none of the consent decrees at issue in the

present cases contains any concessions of federal rights by class rep-

resentatives for the prisoners. If there were such concessions, the district

court would have the power to relieve the parties if such concessions

became inequitable.

ee a a ee ne

se

25a

court, though having once approved, withdraws its

approval and terminates prospective relief, the condition

upon which the parties agreed to bind themselves will]

have failed. In such circumstances, we see no basis, con-

sistent with fundamental principles of contract law or

with the Supremacy Clause of the Constitution, on which

a state court would have the power to reinstate obliga-

tions Originally imposed in the federal consent decree

but terminated by the federal court.

Nor, given the Act’s definitions, does it appear that

Congress thought federal consent decrees would simul-

taneously be private settlement agreements. A consent

decree is defined as relief “entered by the court,” 18

U.S.C. § 3626(g)(1), and it is well established that a fed-

eral court ordinarily has the power to enforce its own

orders and judgments, see, e.g., Peacock v. Thomas, 516

U.S. 349, 356-57 (1996); Shillitani v. United States. 384

U.S. 364, 370 (1966). A private settlement agreement, in

contrast, is defined as relief that is “not subject to judi-

cial enforcement.” 18 U.S.C. § 3626(g)(6). Given these

definitions, it appears that Congress sought to make the

Act's concepts of consent decrees and private settlement

agreements mutually exclusive.

We note also that the Act, in contrasting the treatment

to be given to private settlement agreements, specifies

that those agreements are enforceabie “in State court.”

Id. § 3626(c)(2)(B). The absence of any similar state-

ment indicating state-court enforceability of federal con-

sent decrees reinforces our view that Congress meant the

Act to require the termination of consent decrees that are

not supportable by need-narrowness-intrusiveness find-

ings and not simply to make such decrees unenforceable

by federal courts but enforceable by state courts. Cer-

tainly given the goal of relieving governmental entities

26a -

of judicially ordered burdens that “extend. . . further

than necessary” to remedy a federal violation, id.

§ 3626(a)(1)(A), it would seem anomalous for Congress

simply to transfer judicial enforcement of unnecessary

relief from one forum to another.

In sum, the Act explicitly requires the “immediate ter-

mination of any prospective relief” that was approved or

granted in the absence of the specified need-narrowness-

intrusiveness findings. Jd. § 3626(b)(2). Since prospec-

tive relief, under the set of definitions provided in the

Act, includes a consent decree to the extent that the

decree does not award compensatory monetary damages,

we think it clear from the statute itself that, if those find-

ings were not made in connection with the entry of the

decree, see id., and if the court does not proceed to make

the requisite findings that prospective relief remains nec-

essary to correct a current and ongoing violation of a

federal right, see 18 U.S.C.A. § 3626(b)(3) (West Supp.

1998), the Act requires the termination of such a consent

decree.

Although we view the language of the Act as suffi-

ciently clear not to require resort to legislative history

for explanation, see, e.g., Blum v. Stenson, 465 U.S. 886,

896 (1984) (in resolving question of Congress’s intent,

“we look first to the statutory language and then to the

legislative history if the statutory language is unclear’),

we note that the history of the Act confirms our inter-

pretation that the Act calls for the termination of consent

decrees that lack the requisite need-narrowness-intru-

siveness foundation. A Congressional conference report

describing the termination provision of a predecessor

bill that was virtually identical to the termination pro-

vision that was eventually included in the PLRA stated

that “/p/Jrior consent decrees are made terminable upon

27a

the motion of either party, and can be continued only if

the court finds that the imposed relief is necessary to

correct the violation of the federal right.” H.R. Conf.

Rep. No. 104-378, at 166 (1995) (emphasis added). Sim-

ilarly, an earlier predecessor bill, H.R. 667, 104th Cong.

(1995), would have required the immediate termination

of any prospective relief and defined “relief” to include

consent decrees. The House of Representatives Judiciary

Committee Report on H.R. 667 stated that the termina-

tion provision “allows a jurisdiction that is already sub-

ject to an existing federal consent decree that was

entered with no finding of any constitutional violation.

to move to terminate that decree.” H.R. Rep. No. 104-

21, at 26 (1995) (“House Report”) (emphasis added).

The House Report also explained that the relevant sec-

tion would

limit[ ] the remedial scheme a court may order or

approve to the least intrusive remedy. . . . [and

would] reasonably and permissibly limit[ ] the use

of court-enforced consent decrees to resolve prison

conditions suits, while freely allowing the use of

private settlement agreements.

Id. at 24-25.

In sum, we agree with the conclusions of the First Cir-

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

649 (Ist Cir. 1997), cert. denied, 118 S. Ct. 2366 (1998),

that although the definition of consent decrees as “relief”

“contradicts conventional” usage, the Act, when “[r]ead

literally, . . . requires termination of the consent decree

itself,” id. at 654, and that the language of the Act, read

literally, accurately reflects the intent of Congress.

Accordingly, we reject the Benjamin I panel’s view that

the Act does not require that consent decrees unsup-

28a

portable by need-narrowness-intrusiveness findings be

terminated.

B. The Meaning of “Termination”

We also, however, reject the view of the district court

that, if a consent decree was entered without the requi-

site need-narrowness-intrusiveness findings, the Act

requires that the decree be vacated. The Act states that

such decrees are to be “terminat[ed]”; it does not speak

of vacatur or use the term “vacate.” There is a poten-

tially significant difference between the terms, and we

see no basis for assuming that Congress thought the two

interchangeable. As the First Circuit observed,

Nothing in the PLRA or its legislative history

speaks of vacating consent decrees. Congress chose

to use the verb “terminate” and to eschew the verb

“vacate.” The distinction between these two words

is clear: “terminate” means “to put an end to” or “to

end,” Black’s Law Dictionary at 1471 [(6th ed.

1990)], whereas “vacate” means “to annul” or “to

render. . . void,” id. at 1548.

In the present context, this distinction may well

possess practical significance. . . . While termi-

nating a consent decree strips it of future potency,

the decree’s past puissance is preserved and certain

of its collateral effects may endure. Vacating a con-

sent decree, however, wipes the slate clean, not only

rendering the decree sterile for future purposes, but

also eviscerating any collateral effects and, indeed,

casting a shadow on past actions taken under the

decree’s imprimatur. . . . [NJothing in the PLRA

even hints that consent decrees must be vacated

when prospective relief is terminated .

29a

Inmates of Suffolk County Jail v. Rouse, 129 F.3d at 662.

We likewise see no indication in the Act itself or in its

legislative history that Congress meant past consent

decrees to be annulled and Stripped of all past signifi-

cance or collateral effect. Accordingly, we conclude that

the Act requires only that consent decrees not support-

able by need-narrowness-intrusiveness findings be ter-

minated, not vacated.

il. THE CONSTITUTIONAL CHALLENGES

Plaintiffs contend that when the Act is read to require

termination of consent decrees, it is unconstitutional in

several respects. They contend principally that the ter-

mination provision violates the separation of powers

principle of the Constitution by requiring the courts to

reopen final judgments and violates Article III by strip-

ping the courts of their power and duty to fashion ade-

quate remedies in constitutional cases. We note that

plaintiffs have not, in this en banc rehearing, renewed

their contention that the termination provision violates

the principle enunciated in United States y. Klein;

accordingly, that contention is no longer before this

Court. Plaintiffs also argue that the application of the

Act’s termination provision to the Decrees would violate

their rights to due process and equal protection. We

reject all of their contentions.

A. Separation of Powers

The Constitutional principle of separation of powers

protects each of the three Branches of the federal gov-

ernment from encroachment by either of the other

Branches. Article III of the Constitution “establishes

a ‘judicial department’ with the ‘province and duty .

30a

to say what the law is’ in particular cases and contro-

versies.” Plaut, 514 U.S. at 218 (quoting Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). The sep-

aration of powers “serves both to protect the role of the

independent judiciary within the constitutional scheme

of tripartite government, . . . and to safeguard litigants’

right to have claims decided before judges who are free

from potential domination by other branches of gov-

ernment.” Commodity Futures Trading Commission v.

Schor, 478 U.S. 833, 848 (1986) (internal quotation

marks omitted).

In Plaut, the Supreme Court established that one facet

of the separation of powers principle prevents Congress

from requiring the courts to reopen final judgments. At

issue in Plaut was a then-recently-enacted statutory pro-

vision dealing with statutes of limitations in civil actions

brought to enforce the federal securities laws. The Plaut

plaintiffs had previously commenced a federal securities

fraud action seeking money damages; when commenced,

their action was timely under the then-applicable statute

of limitations. While their suit was pending, however,

the Supreme Court in Lampf, Pleva, Lipkind, Prupis &

Petigrow v. Gilbertson, 501 U.S. 350, 364 (1991), ruled

that such actions were subject to a shorter limitations

period. Under that ruling, the Plaut plaintiffs’ claims

were dismissed as time-barred; the plaintiffs did not

appeal, and the judgment dismissing their case became

final. Thereafter, Congress passed a statute purporting to

reinstate actions that had been dismissed under Lampf

but that would haye been timely had the prior limitations

period been applied.

The Court ruled that because the dismissal of the

Plaut plaintiffs’ action had become final before the new

legislation went into effect, Congress had “exceeded its

ES a a tas NT late tl AS ale i anh, apatvilie nda ll: —

a ee ee

3la

authority by requiring the federal courts to exercise [t]he

judicial Power. . . in a manner repugnant to the text,

structure and traditions of Article III.” Plaut, 514 U.S.

at 217-18 (internal quotation marks omitted). The Court

Stated that 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 hierar-

chy—with an understanding, in short, that “a judg-

ment conclusively resolves the case” because “a

‘judicial Power’ is one to render dispositive judg-

ments.” Easterbrook, Presidential Review, 40 Case

W.Res.L.Rev. 905, 926 (1990). By retroactively

commanding the federal courts to reopen final judg-

ments, Congress . . . violate[s] this fundamental

principle.

Plaut, 514 U.S. at 218-19.

Having achieved finality, . . . a judicial decision

becomes the last word of the judicial department

with regard to a particular case or controversy, and

Congress may not declare by retroactive legislation

that the law applicable to that very case was some-

thing other than what the courts said it was.

Id. at 227 (emphasis in Original).

“Finality,” however, may be defined differently for

different purposes, and the Plaut Court distinguished the

judgment at issue before it, which dismissed a complaint

seeking money damages, from other types of judgments.

Making particular reference to the decision in Pennsyl-

vania v. Wheeling and Belmont Bridge Co., 59 U.S. (18

How.) 421 (1856) (“Wheeling Bridge IT’), see also

Pennsylvania vy. Wheeling and Belmont Bridge Co., 54

U.S. (13 How.) 518 (1852) (“Wheeling Bridge I’), the

32a

Plaut Court noted that a separation of powers contention

had been rejected to the extent that challenged legisla-

tion had “altered the prospective effect of injunctions,”

514 U.S. at 232. In Wheeling Bridge J, the Supreme

Court had ruled that a bridge across the Ohio River was

so low as to obstruct navigation, in violation of then-

existing federal law, and the Court entered an injunction

ordering the bridge elevated or abated. See Wheeling

Bridge 1, 54 U.S. at 521, 626. Thereafter, Congress

enacted a statute declaring the bridge a lawful structure,

designating it a post-road for carriage of the mails, and

authorizing the bridge’s owner to maintain the bridge at

its then-present height. Subsequently, after the bridge

had been destroyed by a storm, Pennsylvania sought to

enjoin reconstruction of the bridge at the same height,

arguing that the statute legalizing the bridge was uncon-

stitutional because it “ha[d] the effect and operation to

annul the judgment of the court already entered, or the

rights determined thereby.” Wheeling Bridge 1], 59 U.S.

at 431.

The Wheeling Bridge II Court noted that had its prior

judgment been a judgment for money damages, Penn-

sylvania’s contention would have had merit (and indeed

did have merit insofar as the prior judgment had awarded

costs), for the judgment would have been final within

the meaning of the separation of powers principle and

could not have been altered by an Act of Congress. See

id. (“if the remedy in this case had been an action at law,

and a judgment rendered in favor of the plaintiff for

damages, the right to these would have passed beyond

the reach of the power of congress.”). However, to the

extent that Wheeling Bridge I granted forward-looking

injunctive relief, the Wheeling Bridge II] Court ruled that

the judgment was “executory” rather than final, and thus

its enforcement could be prevented by Congress:

33a

[T}hat part of the decree, directing the abatement of

the obstruction, is executory, a continuing decree,

which requires not only the removal of the bridge,

but enjoins the defendants against any reconstruc-

tion or continuance. Now, whether it is a future

existing or continuing obstruction depends upon the

question whether or not it interferes with the right

of navigation. If, in the mean time. since the decree,

this right has been modified by the competent

authority, so that the bridge is no longer an unlaw-

ful obstruction, it is quite plain the decree of the

court cannot be enforced.

Wheeling Bridge 11,59 U.S. at 431-32.

The Plaut Court observed that cases such as Wheeling

Bridge II “distinguish themselves” from Plaut, 514 U.S.

at 232, which involved only requests for monetary relief.

The Plaut Court stated that nothing in its holding called

intO question the principle established in Wheeling

Bridge 11, that legislation does not violate the separation

of powers by “alter[ing] the prospective effect of injunc-

tions.” Plaut, 514 U.S. at 232. We understand the param-

eters drawn by Plaut and Wheeling Bridge II to be as

follows: Under the separation of powers, Congress lacks

the authority to alter a finally rendered judgment order-

ing the payment of money. On the other hand, to the

extent that a court’s final judgment consists of an injunc-

tion, Congress may require alteration or termination of

its future effect if the law on which the injunction was

predicated has been changed. Those conditions are Sat-

isfied here. By statute Congress has altered the courts’

remedial powers so that, in this class of cases, injunc-

tions may not be issued if they are not constitutionally

mandated. Congress may accordingly require the ter-

mination of the executory portions of injunctions that

exceed the courts’ present remedial powers.

34a

The proposition that a court has the authority to alter

the prospective effect of an injunction in light of

changes in the law or the circumstances is, of course,

well established. See, e.g., System Federation, 364 U.S.

at 646-47; United States v. Swift & Co., 286 U.S. 106,

114-15 (1932) (“Swift”); Chrysler Corp. v. United States,

316 U.S. 556, 562 (1942); Wheeling Bridge 11, 59 U.S. at

431-32. “The source of the power to modify is of course

the fact that an injunction often requires continuing

supervision by the issuing court and always a continuing

willingness to apply its powers and processes on behalf

of the party who obtained that equitable relief.”

System Federation, 364 U.S. at 647. Further, that author-

ity extends to injunctions entered on consent of the par-

ties. “[T]he power of a court of equity to modify an

injunction in adaptation to changed conditions,” even

though the injunction “was entered by consent,” is

“inherent in the jurisdiction of the chancery. A contin-

uing decree of injunction directed to events to come

is subject always to adaptation as events may shape the

need.” Swift, 286 U.S. at 114. See also Agostini v.

Felton, 117 S. Ct. 1997, 2006 (1997) (“A court errs

when it refuses to modify an injunction or consent

decree in light of [statutory or decisional law]

changes.”); Rufo v. Inmates of Suffolk County Jail, 502

U.S. 367, 391 (1992) (consent decree may be reopened

“to the extent that equity requires”); System Federation,

364 U.S. at 651; Western Union Telegraph Co. v. Inter-

national Brotherhood of Electrical Workers, 133 F.2d

955, 957 (7th Cir. 1943) (“though a decree may be final

as it relates to an appeal. . . , yet, where the proceed-

ings are of a continuing nature, it is not final, . . . and

the injunction will be vacated. . . where the law has

been changed”).

35a

In System Federation, for example, a consent decree

enjoined a railroad and several unions from discrimi-

nating against the railroad’s nonunion employees

because of their nonunion status. At the time the decree

was entered, a federal statute made such discrimination

unlawful. Six years later, however, Congress amended

the statute to allow collective bargaining agreements

permitting an employer to require union membership as

a condition of employment, and the unions asked the dis-

trict court to modify the decree to make it clear that the

injunction against such conditions was thenceforth to

“have no prospective application.” System Federation,

364 U.S. at 645 (internal quotation marks omitted). The

district court “acknowledged its authority to modify the

consent decree but declined to do so, primarily out of

regard for the fact that the unions. . . had consented

. . . [to] an undertaking which the District Court con-

sidered was not unlawful either before or after the .

amendments.” /d. The court of appeals affirmed, but the

Supreme Court reversed. Refusing “to recede from” the

“principles of the Wheeling Bridge case,” 364 U.S. at

650, the System Federation Court noted that when the

underlying law governing the conduct of the parties has

been altered, the court has the power to dissolve the

injunction, even “though it was entered by consent,’ ” id.

at 647 (quoting Swift, 286 U.S. at 114), in order to avoid

“render[ing] protection in no way authorized by the

needs of safeguarding statutory rights,” System Feder-

ation, 364 U.S. at 648.

Given the inherent power of the courts to modify or

terminate forward-looking injunctive provisions in light

of changes in law or circumstances, and given the dis-

tinction drawn by the Plaut Court between monetary

judgments and judgments granting prospective injunc-

36a

tive relief, we conclude that plaintiffs’ separation of

powers challenge to the PLRA’s termination provision

must be rejected. Section 3626(b)(2) does not require the

termination of any relief other than prospective relief,

and the definition of prospective relief expressly

excludes compensatory monetary damages. Thus, the

PLRA does not seek retroactively to revise past adjudi-

cations by the Judicial Branch that had become “final”

within the meaning of Plaut.

Most of our sister Circuits that have considered this

question have also reached the conclusion we reach here

today. See, e.g., Hadix v. Johnson, 133 F.3d 940, 942-43

(6th Cir.) (per curiam), cert. denied, 118 S. Ct. 2368

(1998); Dougan v. Singletary, 129 F.3d 1424, 1426 (11th

Cir. 1997) (per curiam), cert. denied, 118 S. Ct. 2375

(1998); Inmates of Suffolk County Jail v. Rouse, 129 F.3d

at 656-57; Gavin v. Branstad, 122 F.3d 1081, 1089 (8th

Cir. 1997), cert. denied, 118 S. Ct. 2374 (1998); Plyler

v. Moore, 100 F.3d 365, 371-72 (4th Cir. 1996), cert.

denied, 117 S. Ct. 2460 (1997). The only contrary court

of appeals opinion of which we are aware, issued by a

panel of the Ninth Circuit, was withdrawn by that court

in connection with its granting of rehearing en banc. See

Taylor v. United States, 143 F.3d 1178 (9th Cir.), petition

for rehearing granted, and panel opinion withdrawn,

158 F.3d 1059 (9th Cir. 1998) (en banc).

For the reasons discussed above, we share the majority

view that the Act’s requirement for the termination of

prospective relief, where that relief is not and cannot be

supported by need-narrowness-intrusiveness findings, does

not violate the finality** principle of separation of powers.

** As indicated earlier, we do not address the limitation on Congres-

sional power to prescribe a rule of decision, enunciated in United States

v. Klein, since plaintiffs have not argued that issue to the en banc court

37a

B. Interference With Article II] Power

Nor is there merit in plaintiffs’ contention that the

PLRA’s provision for termination of consent decrees

strips the courts of their Article II] power and duty to

remedy constitutional wrongs, for the Act neither alters

the scope of substantive rights nor limits the type of

relief that may be ordered if that relief is necessary to

redress violations of those rights. Rather, the Act forbids

forward-looking relief in excess of what the court finds

is necessary. Congress's power to limit the remedial

authority of the federal courts, which is grounded in its

power to “ordain and establish” inferior federal courts.

U.S. Const. Art. III, § 1, is well established. See, €.2.,

Hanna v. Plumer, 380 U.S. 460, 472-73 (1965): Sibbach

v. Wilson & Co., 312 U.S: 1, 9 (1941). Congress may, for

example, establish substantive and procedural! prereq-

uisites to the granting of specific types of relief, see,

e.g., Lauf v. E.G. Shinner & Co.. 303 U.S. 323, 329-30

(1938) (certain statutorily-specified findings required

before court may issue injunction in labor dispute); or

give one court exclusive jurisdiction to enjoin the oper-

ation of a particular statutory scheme, see Lockerty v

Phillips, 319 U.S. 182, 187-88 (1943); or bar all federal

courts from enjoining the collection of state taxes so

long as adequate remedies are available in state court.

see California v. Grace Brethren Church, 457 U.S. 393.

407-08, 411 (1982). See also Yakus v. United States. 321

U.S. 414, 442 n.8 (1944) (listing “other instances in

which Congress has regulated and restricted the power

of the federal courts to grant injunctions”).

In the PLRA, Congress has neither defined nor altered

the federal rights that may be vindicated in prisoner lit-

igation. Nor has it forbidden the court, if it finds a vio-

lation of federal right, to order or enforce such relief as

38a

the court finds is needed to remedy the violation of that

right. The Act's termination provision simply forbids the

continuation of prospective relief that exceeds what is

needed to remedy a continuing violation of the federal

right. Existing consent decrees may have ordered, with-

out adjudication of the merits of the plaintiffs’ claims or

without adjudication of the appropriate scope of the rem-

edy for a proven federal violation, more relief than was

needed to remedy the violations. The Act's elimination

of the parties’ ability to obtain judicial enforcement of

the forward-looking provisions of a judgment obtained

without such adjudications neither affects the court's

power “ ‘to say what the law is’ in particular cases and

controversies,” Plaut, 514 U.S. at 218-(quoting Marbury

v. Madison, 5 U.S. (1 Cranch) at 177), nor infringes “lit-

igants’ right to have claims decided before judges who

are free from potential domination by other branches of

government,” Commodity Futures Trading Commission

v. Schor, 478 U.S. at 848 (internal quotation marks omit-

ted). The court remains authorized to adjudicate the con-

troversies before it and to order such relief as is

necessary to remedy the federal violations it finds estab-

lished. We conclude that the Act does not represent an

abrogation of Article III power.

C. Due Process and Equal Protection

Plaintiffs’ remaining constitutional contentions do not

require extended discussion. Their principal due process

contention is that the termination provision deprives

them of vested contractual rights. As discussed in Part

III.A. above, however, the provisions of a consent decree

that order prospective relief remain subject to modifi-

cation or alteration for changes in law or circumstances.

Such right as a litigant may have to prospective relief is

thus neither final nor “vested” in the constitutional sense.

—— J

39a

Further, as the System Federation Court noted, a court

considering whether modification of a consent decree is

warranted is not bound by principles of contract:

“We reject the argument. . . that a decree entered

upon consent is to be treated as a contract and not as

a judicial act... . [I])n truth what was then

adjudged was not a contract as to any one. The con-

sent is to be read as directed toward events as they

then were. It was not an abandonment of the right to

exact revision in the future, if revision should

become necessary in adaptation to events to be.”

364 U.S. at 651 (quoting Swift, 286 U.S. at 114-15). The

System Federation Court stated that “[t}he parties can-

not, by giving each other consideration, purchase from a

court of equity a continuing injunction.” 364 U-S. at

651.

We conclude that plaintiffs’ due process contentions

were properly rejected. Accord Dougan vy. Singletary,

129 F.3d at 1426-27 (“a decree, unlike a money judg-

ment, is subject to later adaptation to changing condi-

tions. Legislative modification of the law governing the

decree thus does not impermissibly divest the inmates of

any vested rights”); Inmates of Suffolk County Jail vy.

Rouse, 129 F.3d at 658 (“modifiable decrees cannot

create vested rights”); Gavin v. Branstad, 122 F.3d at

1091 (“a judgment that is not final for purposes of

the separation of powers is also not final for purposes

of due process”).

Plaintiffs’ equal protection argument is principally

that the PLRA burdens the right of access to courts and

thus warrants “strict serwtiny.” The right of access to

courts is indeed fundamenral, see, e.g., Lewis v. Casey,

518 U.S. 323, 350-51 (1996); Bounds v. Smith, 430 U.S.

40a

817, 821-23 (1977); Wolff v. McDonnell, 418 U.S. 539,

578-80 (1974), but the termination provision does not

impair that right. As discussed in Part III.B. above, noth-

ing in the Act alters plaintiffs’ federal rights or prevents

the court from granting such relief as is necessary to

remedy violations of those rights. Plaintiffs remain free

to seek an adjudication that their federal rights are being

violated and to secure the relief necessary to remedy

such federal violations as they establish. Further, under

the Act, existing provisions for prospective relief

designed to remedy violations of those rights are not to

be terminated where the need-narrowness-intrusiveness

findings can be made with respect to the continuation of

such relief. See 18 U.S.C.A. § 3626(b)(3) (West Supp.

1998). Thus, plaintiffs’ fundamental right of access to

the courts is not burdened. Accord Inmates of Suffolk

County Jail v. Rouse, 129 F.3d at 660 (“[u]nder the

PLRA, the courthouse doors remain open and the with-

drawal of prospective relief—above and beyond what is

necessary to correct the violation of federally protected

rights—does not diminish the right of access”); Gavin v.

Branstad, 122 F.3d at 1090 (“[t]he right to enforce a

consent decree that goes beyond the bounds of consti-

tutional necessity is not equivalent to the right to bring

constitutional grievances to the attention of the courts”);

Plyler v. Moore, 100 F.3d at 373 (“[s]Jimply put, the

Inmates have confused the right of access to the courts

with the scope of the available substantive relief”).

Since no fundamental right is burdened, and prisoners

are not a suspect class, strict scrutiny of the Act is not

warranted. Plaintiffs’ equal protection claim must thus

be rejected “if there is any reasonably conceivable state

of facts that could provide a rational basis for the clas-

sification.” Heller v. Doe, 509 U.S. 312, 320 (1993)

4la

(internal quotation marks ovnitted). Under this standard,

the burden is on the person challenging the legislation

“to negative every conceivable basis which might sup-

port it, . . . whether or not the basis has a foundation in

the record.” /d. at 320-21 (internal quotation marks

omitted). Plaintiffs fall far short of meeting their burden.

The terms and legislative history of the Act make it clear

that, in the unique context~of litigation challenging

prison conditions, see generally Thornburgh v. Abbott,

490 U.S. 401, 407-08 (1989); Turner v. Safley, 482 U.S.

78, 89 (1987), Congress adopted the remedial and ter-

mination provisions in order to promote, inter alia, prin-

ciples of federalism and judicial restraint. The objective

of limiting the grant or continuation of prospective relief

in this context to no more than what is found necessary

to remedy the violation of a federal right is unques-

tionably a legitimate one. Accord Inmates of Suffolk

County Jail v. Rouse, 129 F.3d at 660; Dougan v. Sin-

gletary, 129 F.3d at 1427; Gavin v. Branstad, 122 F.3d at

1090; Plyler v. Moore, 100 F.3d at 374.

IV. PROCEEDINGS ON REMAND

As indicated in Part II above, we have concluded that

the Act requires the termination of consent decrees pro-

viding for prospective relief entered without the requi-

site need-narrowness-intrusiveness findings, but that it

does not require the annulment or vacatur of those

decrees. Accordingly, we reverse so much of the order of

the district court as vacated the Decrees at issue here.

Further, as noted in Part I.A. above, the Act contains

a “LIMITATION” on the immediate termination require-

ment, which provides that

42a

[p]Jrospective relief shall not terminate if the court

makes written findings based on the record that

prospective relief remains necessary to correct a

current and ongoing violation of the Federal right,

extends no further than necessary to correct the vio-

lation of the Federal right, and that the prospective

relief is narrowly drawn and the least intrusive

means to correct the violation.

18 U.S.C.A. § 3626(b)(3) (West Supp. 1998) (emphasis

added). Although § 3626(b)(2) uses the phrase “imme-

diate termination” of prospective relief where there have

been no need-narrowness-intrusiveness findings (empha-

sis added), at least two aspects of that subsection, read

in conjunction with the “LIMITATION” subsection that

follows it, persuade us that the word “immediate” was

not intended to mean without any time intervening

between motion and termination.

First, although the termination provision presupposes

the absence of need-narrowness-intrusiveness findings,

the “LIMITATION” subsection provides that prospective

relief “shall not terminate” if the court makes the req-

uisite written need-narrowness-intrusiveness findings;

presumably such written findings cannot be made instan-

taneously upon the motion by a defendant for termina-

tion of a decree. Hence, Congress must have intended

that there be some interval during which the requisite

findings could be made. Second, the findings envisioned

by the “LIMITATION” subsection must be “based on the

record” and must state that prospective relief is “nec-

essary to correct a current and ongoing violation of the

Federal right.” Evidence presented at a prior time, how-

ever, could not show a violation that is “current and

ongoing.” Hence, the “record” referred to cannot mean

the prior record but must mean a record reflecting con-

43a

ditions as of the time termination is sought. In sum, we

interpret §§ 3626(b)(2) and (3), read together, to mean

that, when the plaintiffs so request in response to a

defendant’s motion for termination, the district court

must allow the plaintiffs an Opportunity to show current

and ongoing violations of their federal rights.

In the present case, plaintiffs asked the district court

to allow them an Opportunity to present evidence of such

current and ongoing violations and of the need for con-

tinuation of the prospective relief provided in the

Decrees. We conclude that plaintiffs should have been

given that opportunity. Accordingly, we remand for fur-

ther proceedings.

The Act provides that a motion for immediate termi-

nation of prospective relief pursuant to § 3626(b)(2)

Operates to stay such relief beginning on the 30th day

after such a motion, see 18 U.S.C.A. § 3626(e)(2) (West

Supp. 1998). The Act also allows the district court to

postpone the automatic stay for 60 additional days for

good cause other than general calendar congestion. /d.

§ 3626(e)(3). Since the district court here did not allow

plaintiffs to make a record with respect to the need for a

continuation of prospective relief, we instruct that the

30-day period prior to the commencement of the auto-

matic stay is to be deemed to begin on the day following

the issuance of our mandate herein.

Plaintiffs have also argued that the above 30- and 60-

day periods are insufficient to give them a meaningful

Opportunity to make a record as to the need for contin-

uation of prospective relief and hence constitute a denial

of due process. We regard any challenge at this time to

the constitutionality of the automatic Stay provision as

premature, and we decline to address it on this appeal.

44a

Plaintiffs have also requested that this Court extend

the stays we have previously entered during the pen-

dency of this appeal, in order to keep the Consent

Decrees in place until the proceedings on remand have

been completed. In light of our reversal of the district

court’s order vacating the Decrees, we regard our prior

stays as moot, and we decline to extend them further.

Our current stay will be vacated upon the issuance of the

mandate.

CONCLUSION

We have considered all of plaintiffs’ arguments that

are properly before us on this en banc rehearing and,

except as indicated above, have found them to be with-

out merit. We conclude (a) that the PLRA permissibly

provides for the termination of forward-looking provi-

sions of consent decrees in the absence of the need-nar-

rowness-intrusiveness findings required by the Act, but

does not provide for vacatur of those decrees; and (b)

that plaintiffs should have been given an opportunity to

present evidence showing the need for continuation of

prospective relief.

The opinion of the panel is vacated. The current stay

granted by this Court is terminated. The order of the dis-

trict court is affirmed insofar as it upheld the constitu-

tionality of § 3626(b)(2), and is reversed insofar is it

vacated the Consent Decrees, and the matter is remanded

for further proceedings not inconsistent with this opinion.

45a

JACOBS, Circuit Judge (with whom WINTER, Chief Judge,

and KEARSE, WALKER, MCLAUGHLIN, CABRANES, and

PARKER, Circuit Judges, join), concurring:

I write separately to respond to Judge Leval’s con-

curring opinion, which (i) addresses the passage in the

Court's in banc opinion that explains why consent

decrees are not contracts subject to state-court enforce-

ment (Majority Opinion at 8493-8495), and (ii) charac-

terizes that passage as unjustified dictum. For the

following reason, I think that the passage is needed and

useful.

In testing the constitutionality of the PLRA’s “termi-

nation of prospective relief” provision (18 U.S.C.

§ 3626(b)), the Panel opinion intimated that the provi-

sion might fail if it were read to require the termination

of the consent decrees. See Benjamin I], 124 F.3d 162.

176-77 (2d Cir. 1997). The Panel opinion avoided that

risk by reading the provision solely as a limit on the

power of federal courts to enforce the consent decrees,

and by holding therefore that the consent decrees are not

terminated (or vacated) and may be enforceable as con-

tracts in the state courts. Jd. The Panel opinion justified

its course on the perfectly sound principle that courts

should avoid making unnecessary constitutional pro-

nouncements if a reasonable interpretation of the statute

would obviate the constitutional difficulties. See Lo

Duca v. United States, 93 F.3d 1100, 1110 (2d Cir. 1996)

(“[W]e are instructed to construe federal statutes to

avoid constitutional infirmity. . . .”). Only by invok-

ing this doctrine did the Panel opinion avoid reaching

certain of plaintiffs’ separation of powers, due process,

and equal protection arguments. Benjamin II, 124 F.3d at

176-77, 177 n.18.

46a

The Court's in banc opinion reaches and decides the

questions that the Panel avoided. See Majority Opinion

at 8494 (“We do not see any basis for inferring that

Congress meant federal consent decrees that are not

based on need-narrowness-intrusiveness findings to

remain in effect and amenable to enforcement in state

courts.”). Therefore, it becomes a natural and integral

part of the in banc Court’s analysis to say why we are

reaching tough constitutional issues that we should avoid

if we can, that is, why the detour taken by the Panel

opinion is foreclosed. To do that, the Court’s in banc

opinion demonstrates that the consent decrees are not in

the nature of contracts that remain subject to enforce-

ment and administration in the state courts.

Judge Leval’s concurring opinion argues that because

the Court's in banc opinion vacates the Panel opinion,

there is no need to address the reason given by the Panel

for avoiding the tough constitutional question. I dis-

agree. The Panel opinion is vacated, not annihilated.

Because we vacate it, we should say why, and explain

our course, including why we reach questions that might

be avoided if the consent decrees were contractual in

charactér. The resulting passage in the Court’s in banc

opinion is not a core holding, but neither is it dictum, let

alone dictum that is “advisory” and “gratuitous.” See

Leval Concurring Opinion at 8517, 8521.

47a

LEVAL, Circuit Judge (with whom Judge Oakes concurs,

and Judge Calabresi concurs as to Part II) concurring in

part:

With one reservation outlined below, | join in the

majority's opinion.

I. In civil actions relating to prison conditions

(“prison litigation”), the Prison Litigation Reform Act

(“PLRA”) grants the defendant the right to immediate

termination of the prospective effect of injunctions to the

extent their mandates do not meet the statute’s need-nar-

rowness-intrusiveness test. See 18 U.S.C. § 3626(b)(2).

The plaintiffs contend that a congressional enactment

requiring such termination undoes the judgment of a fed-

eral court and thereby violates the Constitution’s sepa-

ration of powers.

Although Congress has indeed required the alteration

of a federal court’s judgment, it has done so in a per-

missible manner. In § 3626(a), Congress limits the power

of the courts to grant prospective relief in prison

litigation to circumstances that satisfy the need-nar-

rowness-intrusiveness test. Subsection (c)(1) further

provides that a “court shall not enter or approve a con-

sent decree” unless the decree satisfies the same test.

Under subsection (b)(2), previously-entered consent

decrees are terminable if they do not meet the need-

narrowness-intrusiveness test. Because subsection

(c)(1)’s limitation on the courts’ remedial powers and

subsection (b)(2)’s provision for termination turn on the

identical test, courts today would lack the power to enter

the consent decrees that are terminable. All Congress has

done in § 3626(b)(2), then, is to bar the courts from con-

tinuing to enforce previously entered injunctions of the

kind they now lack the power to command.

48a

As I understand it, the Supreme Court’s opinion in

Pennsylvania v. Wheeling & Belmont Bridge Co., 59

U.S. 421 (1855) (“Wheeling Bridge II”), holds that a

congressional interference with a federal court’s judg-

ment in such circumstances does not infringe the sepa-

ration of powers. In an earlier case, Pennsylvania v.

Wheeling & Belmont Bridge Co., 54 U.S. 518, 578

(1855) (“Wheeling Bridge I’), the Supreme Court had

ordered a bridge raised or removed because it was a pub-

lic nuisance that impeded navigation. Congress, how-

ever, then passed legislation designating the bridge a

post-road. See Wheeling Bridge II, 59 U.S. at 429.

Because, as a matter of law, a congressionally-desig-

nated post-road could not be adjudged a public nuisance,

the Court was no longer empowered to order the abate-

ment it had mandated in Wheeling Bridge I. The

Supreme Court thus ruled in Wheeling Bridge II that

Congress could lawfully require termination of the

prospective effect of the eariier injunction. See Wheel-

ing Bridge II, 59 U.S. at 431-32, 436.

I understand Wheeling Bridge II to support the propo-

sition that, where a federal court’s injunction has ongo-

ing, prospective effect, and Congress modifies the law

upon which it was predicated so that the court is no

longer empowered to issue such an order, Congress may

give the defendant the right to the termination of the

injunction. In this case, Congress has done just that.

I join in the portion of the majority opinion that so

rules, as well as in its rejection of the plaintiffs’ con-

tentions that § 3626(b)(2) violates constitutional prin-

ciples of equal protection and due process.

II. I do not join in Part IIA of the majority’s opinion.

The panel opinion had expressed views that, once the

consent decrees were terminated, the plaintiffs would

-_

49a

continue to have contract rights arising from the settle-

ment agreements that underlay the consent decrees, and

that the plaintiffs might enforce those contract rights in

state courts. The in banc majority opinion disagrees. It

asserts first that the settlement agreements underlying

the consent decrees cannot stand as enforceable con-

tracts once the consent decrees are vacated; it then adds

that, in any event, the PLRA does not tolerate the sur-

vival of such contract rights.

I express neither agreement nor disagreement with

these views. In my view, those issues are simply not

before us. The issues on which the parties have sought

our ruling are whether § 3626(b)(2) requires termination

of consent decrees that do not comply with the need-nar-

rowness-intrusiveness test, and whether such termination

comports with the Constitution. We answer each of those

questions in the affirmative.

But neither we nor the district court have been asked

to adjudicate whether, after the termination of the con-

sent decrees, prisoners may bring contract actions in

State courts predicated on the settlement agreements that

underlie the consent decrees. The majority’s views on

that question play no role whatsoever in supporting the

conclusions it reaches on the issues that are before us.

The proposition that plaintiffs would be barred, after the

termination of the consent decrees, from enforcing con-

tract rights is not part of the reasoning that leads us to

conclude the decrees must be terminated. The entire dis-

cussion is dictum. These are advisory views that have no

legal force.

I assume, the majority has included the discussion

because of its strong disagreement with the contrary

views stated in the panel’s opinion. But we have vacated

the panel’s opinion and have substituted the opinion of

50a

the in banc court. The panel opinion no longer stands as

an opinion of the Second Circuit. If a majority of the

court feels a need to make clear that it does not endorse

the views expressed in the panel opinion, it could simply

say so. I do not understand why disagreement with a

vacated panel opinion justifies our undertaking to adju-

dicate an issue not presented in this litigation.

I do not mean to imply that the discussion should nec-

essarily be omitted because it is advisory. I recognize

that in well-chosen instances, advisory discussion in a

court opinion can serve a useful purpose. My greater

concern is that the majority seems to present the dis-

cussion as a holding. A reader of the majority opinion,

who did not take care to compare this discussion with

the relief granted, might easily conclude that the Second

Circuit has adjudicated this question. We have done no

such thing, and in fact have no power to do so in a case

that does not put that question before us.

To avoid confusion as to the state of the law, courts

have an obligation when they indulge in advisory dis-

cussion to identify it as such. A court’s holding, includ-

ing the reasoning underlying it, has the force of law.

Within the sphere of that court’s authority, the public

and subservient courts are legally bound. to follow

its ruling. On the other hand, dictum—even when uttered

by the highest court in the land—has no legal force.

A court’s power to make law derives solely from

its obligation to decide cases, and extends no further

than the reasoning that underlies the judgment. See

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821)

(Marshall, C.J.) (“It is a maxim, not to be disregarded,

that general expressions, in every opinion, are to be

taken in connection with the case in which those expres-

sions are used. If they go beyond the case, they may be

Sla

respected, but ought not to control the judgment in a

subsequent suit when the very point is presented for

decision.”).' Thus, while dictum may help observers to

predict how the law may develop if and when the court

eventually rules on a question, it does not have the force

of law. No one is legally obligated to follow it.

If litigants or courts come to consider in the future

whether state law contract rights survive tHe termination

of the consent decrees under the PLRA’s § 3636(b)(2),

they should recognize that the Second Circuit has not

adjudicated that question. It has merely expressed advi-

sory views that may or may not be found persuasive.?

* * *

The Supreme Court recognized that its power to “say what the law is”

extends solely to properly presented cases and controversies as early as

1793. Responding to a written request from Secretary of State Thomas

Jefferson on behalf of President Washington seeking advice on legal

questions arising from trei ies between the United States and France, the

Justices wrote President Washington a letter Stating in part that “[t}he

lines of separation drawn by the Constitution between the three depart-

ments of the government—their being in certain respects checks upon

each other—and our being judges of a court in the last resort—are con-

siderations which afford strong arguments against the propriety of our

extrajudicially deciding the questions alluded to.” Letter from the Jus-

tices to George Washington (Aug. 8, 1793), reprinted in Hart & Wech-

sler's The Federal Courts and the Federal System 93 (Richard H. Fallon

et al. eds., 4th ed. 1996).

2 See Imprisoned Citizens Union v. Prasse, 1999 U.S. App. Lexis 2944,

at *31-32 (3d Cir. February 25, 1999) (“If the Inmates have valid con-

tractual claims that survive termination {of consent decrees under the

PLRA], such claims are based solely upon. . . Pennsylvania law, and

are not affected by the PLRA. 18 U.S.C. § 3626(d) (“The limitations on

remedies in this section shal} not apply to relief entered by a State court

based solely upon claims arising under State law.”). The Inmates are

therefore free to pursue relief in the Pennsylvania courts. It is not our

Province to speak to the validity of any claims arising under Pennsy|-

vania law, or to award relief therefor. ”) (internal quotation marks, cita-

tions, and brackets omitted).

52a

In response to this opinion, Judge Jacobs, joined by a

majority of the court, asserts that the majority’s rejection

of the survival of contract rights “is not a core holding,

but neither is it dictum, let alone dictum that is ‘advi-

sory’ and ‘gratuitous.’ ” He asserts that the passage is

“needed and useful.” (Judge Jacobs stops short of ever

directly asserting that the discussion is a “holding.” Per-

haps that omission is intentional.)

I think it reasonable for Judge Jacobs to insist that the

discussion is “useful.” The discussion expresses my col-

leagues’ disagreement with the panel on an issue that is

likely to arise. The publication of such a debate may

well be useful. When the question arises in litigation, the

judges charged with deciding whether the PLRA toler-

ates or forbids the survival of contract rights may well

benefit from the airing of the views of the Second Cir-

cuit’s judges. My main concern, as stated above, is not

with my colleagues’ expression of their views, but with

presentation in a manner that makes it appear to be a

holding, having the force of law.

Judge Jacobs seems to argue that the majority’s inter-

pretation of the PLRA as forbidding, rather than toler-

ating, the survival of contract rights is not merely

advisory. His argument is ingenious and requires careful

attention.

He tacitly concedes that the court is not granting relief

that depends on a finding that the PLRA forbids the

survival of contract rights. Nonetheless, he argues as

follows:

1. We consider and uphold the constitutionality of the

Statute on the assumption that it forbids the survival of

contract rights.

53a

2. We do this in the face of a prudential principle that

counsels against adjudicating constitutional problems if

they can be reasonably avoided.

3. Under this principle we cannot justify resolving the

constitutional question in step | if the PLRA can plau-

sibly be interpreted to allow for the survival of contract

rights (as that interpretation would obviate the consti-

tutional inquiry).

4. We therefore consider whether the PLRA may rea-

sonably be construed to tolerate the survival of contract

rights and conclude that it may not.

5. Ergo, Judge Jacobs concludes, our decision that

contract rights do not survive the termination of the con-

sent decrees is not merely advisory, albeit not a “core

holding.”

Judge Jacobs’s explanation flows elegantly from step

| to step 5. The principal problem is that Step | is gra-

tuitous.? We have no occasion to consider the question

whether the PLRA passes constitutional muster if con-

Strued to extinguish contract rights. No one has asked us

to rule on whether contract rights survive the termination

of the decrees. And our decision requiring the termina-

tion of the decrees, the issue we are required to adjudi-

cate, would be the same regardless whether the PLRA

tolerates or forbids the survival of contract rights fol-

lowing the termination.

3 In addition, the principle on which Judge Jacobs relies in step 2 coun-

sels avoidance of constitutional issues only when they present serious

problems. See Almendarez-Torres v. United States, ___ U.S.__, 118 S.

Ct. 1219, 1228 (1998). The majority opinion finds no serious consitu-

tional problem in upholding the statute on the assumption that it bars sur-

viva! of contract rights.

54a

Judge Jacobs offers a second reason why the discus-

sion is not advisory, which is that “[t]he Panel opinion is

vacated, not annihilated.” In other words, people can

still read it, and be influenced by its ideas. If we dis-

agree with it we should say so and explain why we have

vacated it.

Once again, the majority’s desire to disavow the views

asserted in the panel’s opinion may well justify the dis-

cussion, but that does not make it a holding. Whether a

discussion is holding or dictum depends on its rela-

tionship to the relief the court renders, not on its rela-

tionship to the pronouncements of other judges in the

prior history of the case. Until we are asked to rule on

the survival of contract rights, our views of those com-

peting interpretations of the PLRA are advisory.

Even if the majority were to insist explicitly that the

passage is not a dictum, but a holding, that would not

make it so. That is because a court’s power to make law

derives solely from its obligation to decide the disputes

before it. As Judge Friendly explained in United States

v. Rubin, 609 F.2d 51, 69 (2d Cir. 1979) (Friendly, J.

concurring), “A judge’s power to bind is limited to

the issue that is before him; he cannot transmute dictum

into decision by waving a wand and uttering the word

‘hold.’ ”

I join in the adjudicatory portion of the majority’s

opinion, but not in Part ITA.

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CALABRESI, Circuit Judge, concurring in the result:

The court today does violence to two fundamental—

and conservative—principles of our Constitution: Sep-

aration of Powers and Federalism. It does the first to no

purpose whatsoever; it does the second needlessly, by

reaching out to express views on an issue that is not yet

before us. It is led to these results by an understandable

desire to follow what it believes to be the will of

Congress. But in so doing, the court attributes to the leg-

islature views that Congress is most unlikely to have

even considered, let alone held.!

This case raises principally two questions. The first is

whether Congress, by the language it used in the PLRA,

sought directly to terminate preexisting court-ordered

consent decrees,’ or whether, instead, Congress used its

paramount powers merely to alter the underlying law and

left it up to the courts to exercise their traditional role of

applying those changes. This question may seem for-

malistic, since the courts, responding to the congres-

sional action, would in the case before us be inexorably

led either to terminate the decrees or to bar future relief

' Concededly, all the other courts of appeals that have confronted the

legislation before us today have reached similar—or, in the case of a

panel of the Ninth Circuit, which held the statute unconstitutional,

equally unfortunate— results. See, e.g., Imprisoned Citizens Union v.

Ridge, ___ F.3d __., 1999 WL 93802, at *4-*8 (3d Cir. Feb. 25, 1999);

Taylor v. United States, 143 F.3d 1178 (9th Cir. 1998), petition for

rehearing granted, and panel opinion withdrawn, 158 F.3d 1059 (9th Cir.

1998) (en banc); Hadix v. Johnson, 133 F.3d 940 (6th Cir. 1998), cert.

denied, __ U.S. __, 118 S. Ct. 2368 (1998); Dougan v. Singletary, 129

F.3d 1424 (11th Cir. 1997) (per curiam), cert. denied, ___ U/S.

___, 118 S. Ct. 2375 (1998); Inmates of Suffolk County Jail v. Rouse, 129

F.3d 649 (1st Cir. 1997), cert. denied, __ U.S. __, 118 S. Ct. 2366

(1998): Gavin v. Branstad, 122 F.3d 1081 (8th Cir. 1997), cert. denied,

—__ U.S. __, 118 S. Ct. 2374 (1998); Plyler v. Moore, 100 F.3d 365, 372

(4th Cir. 1996). On this point, see A Cautionary Note, infra Part III.

Except in certain limited circumstances. See ante at 36-38.

56a

under them, thereby reaching precisely the same result

whichever reading is given to the congressional lan-

guage. In fact, however, it entails issues of the most fun-

damental sort concerning the Separation of Powers.

The second question asks to what extent Congress

intended by the PLRA to limit the ability of prisoners to

enter into contracts, enforceable in state courts, by which

the prisoners obtain benefits in exchange for the waiver

of possible federal claims. The answer to this latter ques-

tion is entirely independent of the answer given to the

first question. For, regardless of whether the PLRA

directly terminated (or indeed vacated) federal court

judgments or merely led courts not to give these consent

decrees future effect, it would still remain uncertain

whether the PLRA permitted state courts to find in exis-

tence and to enforce, under state contract law, agreements

arrived at by the parties contemporaneously with the fed-

eral court consent decrees. I respectfully believe that the

court today answers both of these questions incorrectly.

Because the answers to these questions do not affect the

outcome in the case before us, and because, as to some of

the subsidiary issues in the case, I agree with the major-

ity’s reasoning as well as its conclusion, I concur in the

court’s result,? while strenuously, though respectfully,

dissenting from most of its reasoning.

I. DOES THE PLRA DIRECTLY TERMINATE THE

CONSENT DECREES?

A. The Language of the PLRA and Legislative Intent

The relevant provision of the PLRA, 18 U.S.C.

§ 3626(b)(2), reads:

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any civil action with respect to prison conditions, a

defendant or intervener shall be entitled to the imme-

diate termination of any prospective relief if the relief

was approved or granted in the absence of a finding

by the court that the relief is narrowly drawn, extends

no further than necessary to correct 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.A. § 3626(b)(2) (West Supp. 1998).

On its face, this language does not terminate the con-

sent decrees or any other court judgments. It does no

more than prohibit prospective relief under the prior

judgments. And, as both the panel opinion and the in

banc majority concluded, such termination of prospec-

tive relief in federal courts is clearly constitutional. The

in banc majority also holds that this language bars state

courts from granting prospective relief under the consent

decrees and that it does so constitutionally.

On this latter point, the panel had held the opposite.

Despite some legislative history to the contrary, the

panel concluded that the PLRA terminated federal court

jurisdiction but left state courts free to enforce the

decrees.* The question is a close one, and I am not fully

convinced by the majority, but it is sufficiently in doubt

that I am not inclined to dissent on the issue. Moreover,

I agree completely that, if the PLRA limits state as well

as federal courts from granting prospective relief under

the decrees, it does so constitutionally.

Were this all there was to this section of the PLRA,

the in banc court and I would not diverge on the first of

the two issues before us. Our disagreement stems from

4 See Benjamin v. Jacobson, 124 F.3d 162, 168, 174 (2d Cir. 1997).

58a

the way in which the majority of the court interprets the

definitional section that applies to this part of the PLRA.

That section reads as follows:

(1) the term “consent decree” means any relief

entered by the court that is based in whole or in part

upon the consent or acquiescence of the parties but

does not include private settlements;

(5) the term “prison” means any Federal, State, or

local facility that incarcerates or detains juveniles or

adults accused of, convicted of, sentenced for, or

adjudicated delinquent for, violations of criminal law;

(6) the term “private settlement agreement”

means an agreement entered into among the parties

that is not subject to judicial enforcement other than

the reinstatement of the civil proceeding that the

agreement settled;

(7) the term “prospective relief” means all relief

other than compensatory monetary damages;

(9) the term “relief” means all relief in any form

that may be granted or approved by the court, and

includes consent decrees but does not include pri-

vate settlement agreements.

18 U.S.C. § 3626(g).

The majority takes this definitional section to mean

that the federal court judgments—the consent decrees

themselves—are part of the relief that the PLRA directly

terminates. It concedes that such a reading, albeit literal,

is not natural. See ante at 20. And, after correctly sug-

gesting that Congress has a right to define one thing to

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mean something different from what it normally means,

the court looks to the legislative history of the PLRA to

conclude that Congress has, in effect, done just that. See

ante at 26-27. In this respect, the court agrees with the

First Circuit’s decision in Inmates of Suffolk County Jail

v. Rouse, 129 F.3d 649 (1st Cir. 1997), cert. denied,

__ U.S. __, 118 S. Ct. 2366 (1998), which, afier finding

the same reading of § 3626(g) to be unlikely, neverthe-

less, on the basis of legislative history, deemed it to be

what Congress intended. See id. at 654.5

5

The panel opinion, in contrast, argued that reading the PLRA’s def-

inition of “prospective relief” found in § 3626(g)(7) (which the PLRA

orders to be “immediate[ly] terminat[ed]”) to include consent decrees

“has significant linguistic problems.” Benjamin, 124 F.3d at 167. This

was because decrees or settlement agreements are not forms of relief

akin to injunctions or damages. Relief, instead, is generally understood

to be made available under or pursuant to a consent decree or settlement

agreement. Thus, although one could read the PLRA’s definition of

“prospective relief” (which includes “all relief other than compensatory

monetary damages,” 18 U.S.C. § 3626(g)(7), and “means all relief in any

form that may be granted or approved by the court, and includes consent

decrees but does not include private settlement agreements,” id.

§ 3626(g)(9)), to encompass consent decrees, the panel instead read the

termination of prospective relief ordered under § 3626(b)(2) as leaving

the decrees intact, but removing federal jurisdiction to order any future

relief under those decrees. See Benjamin, 124 F.3d at 167.

The panel did so because adopting the first reading would require

viewing private settlement agreements as a type of relief. And that, the

panel said, made no sense because private settlement agreements are

simply not a form of relief. Therefore, the panel argued, one should

“read the definitional phrase as saying ‘the term “relief” means all relief

in any form that may be granted or approved by the court, and includes

[all relief granted pursuant to} consent decrees but does not include

{relief granted pursuant to] private settlement agreements.’ ” Jd. (alter-

ation in original). I continue to believe that this reading of the provision

is the correct one.

To put it another way, while Congress can, for example, direct us to

treat bananas as if they were apples, when Congress, in a definitional

section, seems to say that bananas are apples, we should ask whether that

is really what Congress meant or whether, instead, it merely intended to

bring about the same result (identical treatment for both types of fruit)

without requiring such an abuse of words.

60a

The problem with such a reading—apart from its admit-

ted linguistic awkwardness—is that there is no reason to

suppose that Congress intended it. The legislative history

cited by the majority (and by the First Circuit) surely

shows that Congress meant, and vehemently so, not to

have such consent decrees enforced by federal courts

except as strictly necessary to protect federal constitu-

tional rights. See H.R. Conf. Rep. No. 104-378, at 166

(1995); H.R. Rep. No. 104-21, at 24-26 (1995). Less

clearly, the same legislative history can be read—as the in

banc majority does—to indicate that Congress, having

barred prisoners from obtaining federal relief under the

decrees, wished to prevent them from going into state

court and getting the same decrees enforced there. See,

e.g., H.R. Rep. No. 104-21, at 25 (noting that the provi-

sion will “insure[ ] that inmates will not simply run from

the federal courthouse to the state courthouse to bring the

same suits and to demand the same burdensome and

unnecessary relief that the federal courts have irrespon-

sibly imposed on local judicial systems”). But there is

nothing in what the majority (and the First Circuit) cites,

or in what I have been able to find, that indicates that

Congress meant to infringe on an existing judgment of the

courts, rather than merely to change the underlying law,

so that the courts would reach the same ultimate result by

modifying the effect of their own prior rulings. In other

words, there is nothing in the legislative history that in

any way suggests that Congress cared a jot or tittle about

whether relief under the decrees was to be precluded as a

result of court adherence to the PLRA, or whether the

prior court judgments—that is, the decrees themselves—

were to be terminated directly by congressional fiat.®

6 And here, the fact that the in banc majority reads the PLRA to bar

prospective relief in state as well as federal courts becomes crucial. As

the panel read the PLRA, the decrees—if they survived—could be

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The difference between the two, though seemingly of

no interest to Congress—which wanted certain results

and was understandably unconcerned with process—is

fundamental to a sound doctrine of Separation of Pow-

ers and hence to the constitutionality of the PLRA. As

the majority reads the PLRA, Congress would for the

first time in our constitutional history have validly com-

manded the alteration or termination of a court judg-

ment. Giving the statutory language its more natural

meaning would instead read the law to do no more than

what Congress (with the courts’ approval) has frequently

done in the past. See, e.g., Pennsylvania v. Wheeling &

Belmont Bridge Co., 59 U.S. (18 How.) 421, 431-32

(1856) (“Wheeling Bridge II’). And this still would

achieve precisely the same results in terms of the pris-

oners before us and of their rights under these decrees.

I believe the court reaches its radical conclusion because

it fails to appreciate the appropriately formalistic nature

of the Separation of Powers doctrine.

B. Good Fences Make Good Neighbors’

The Sovereign cannot, either as a result of contracts

and consent decrees into which it has entered, or as a

enforced in state courts. Hence, under the panel’s reading, the termi-

nation vel non of the decrees themselves directly affected results. It is for

that reason that the panel said that the difference between termination of

the decrees and termination of future relief under them was not simply

formal. See Benjamin, 124 F.3d at 168. As the in banc court reads the

PLRA, instead, future relief is barred in any court. That being so, the

result is identical whether the decrees are terminated or whether courts

are precluded from giving future relief under them.

7 See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 240 (1995) (quot-

ing Robert Frost, Mending Wall, in The New Oxford Book of American

Verse 395-96 (Richard Ellmann ed., 1976)). Of course, Justice Breyer,

who wrote separately in Plaut, was correct to point out that the poet was

making a different point. See Plaut, 514 U.S. at 245 (Breyer, J., con-

curring in the judgment) (quoting Frost in turn: “Before I built a wall I'd

62a

result of court judgments, be precluded from governing

in the public interest to the full extent of its powers.

Thus, a contract by which the government agrees not to

go to war for a certain number of years in exchange for

an agreement by a manufacturer to produce pruning

hooks instead of spears cannot keep the Sovereign from

initiating hostilities, and neither can a consent decree

between the manufacturer and the Sovereign (entered

into, let us say, in settlement of an antitrust action in the

spear industry). Similarly, a consent decree (or a con-

tract, for that matter) by which a state agrees to furnish

cigarettes to prisoners if they are willing to drop an

action against the state cannot keep the government

(either state or national) from passing laws prohibiting

the distribution of cigarettes. The fact that in all such

cases no court would thereafter be able to enforce the

preexisting contract or the prior court judgment (embod-

ied in a consent decree) is of no significance and does

not, under the Separation of Powers doctrine, limit the

capacity of the state validly to enact such laws.®

In the same way, the existence of court judgments that

have some future consequences—orders that damages be

paid, or that a nuisance or a continuing trespass be

enjoined, for example—in no way precludes the

Sovereign from altering laws governing legal tender or

ask to know/What I was walling in or walling out.”). But regardless of

whether Justice Breyer is correct as a literary critic, Justice Scalia’s point

is well-taken—the Framers had a keen appreciation of the importance of

drawing sharp distinctions (building high walls, as it were) between the

domains of the respective branches of our federal government.

8 See Guido Calabresi, Retroactivity: Paramount Powers and Con-

tractual Changes, 71 Yale L.J. 1191, 1202-03 (1962) (collecting cases,

and noting that, even when a government is a party to a contract and

alters that contract to its financial benefit, the government is not barred

from doing so, as long as it demonstrates that the change was also passed

in part for the general welfare).

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nuisance or trespass so i the courts will be led to

ignore or to alter their earlier rulings and thereby, in

effect, to nullify their prior judgments. This is so with

respect to judgments that have predominantly present

effects. Thus, a court would necessarily and properly

amend a decree ordering that damages be paid in gold so

as not to violate a subsequent statute prohibiting the pri-

vate transfer of gold. This is also so, and more likely to

happen, when a judgment (like a consent decree or an

injunction) has important future effects.

The difference between the two situations is simply

that, in the latter case, the probability that the legislature

will intervene—and render the prior judgment, contract,

or consent decree effectively unenforceable by the

courts—is much greater than in the former. In both

cases, however, the point is the same. The Sovereign

being Sovereign cannot be kept from passing laws, and

thereby furthering its view of the public interest, merely

because a contract, consent decree, or judgment of any

sort exists and would be negatively affected or rendered

unenforceable as a result of such legislation. The legis-

lature, in all such cases, acts on its side of the constitu-

tional fence. And its good neighbor—the judiciary—

responds accordingly on its own terrain.

That is the meaning of System Federation No. 91 v.

Wright, 364 U.S. 642 (1961), in which the Supreme

Court required the “ ‘court of equity to modify an

injunction in adaptation to changed conditions.’ ” Jd. at

647 (quoting United States v. Swift & Co., 286 U.S. 106,

114 (1932)). In System Federation, the existing consent

decree forbade party railroads and unions from dis-

criminating against nonunion laborers. See id. at 644. A

subsequent congressional amendment to the Railway

Labor Act permitted, in certain circumstances, contracts

64a

requiring union labor. See id. As a result, the Supreme

Court found that the district court had abused its dis-

cretion when it refused to modify the consent decree. See

id. at 650-53; see also Swift & Co., 286 U.S. at 114 (“A

continuing decree of injunction directed to events to

come is subject always to adaptation as events may

shape the need.”).

It is also the meaning of Wheeling Bridge II. In Penn-

sylvania v. Wheeling and Belmont Bridge Co., 54 U.S.

(13 How.) 518 (1852) (“Wheeling Bridge I’), the Court

had found that a bridge over the Ohio River was a pub-

lic nuisance because its height obstructed the free nav-

igation of the river and thus contravened regulations of

Congress issued pursuant to the Commerce Power. See

id. at 626. A subsequent enactment by Congress had

declared the bridge to be a post-road—and therefore not

subject to nuisance law—and found that, at its proposed

height, the bridge did not interfere with any public rights

of free navigation. See Wheeling Bridge II, 59 U.S. (18

How.) at 426. Accordingly, in Wheeling Bridge II (which

came back to the Court when the prior victors sought a

contempt order against the bridge company), the Court

recognized the change in the underlying law (and

“rights”) and therefore determined that the injunctive

decree could no longer be enforced by the courts. See id.

at 431-32.9

9 Subsequent Supreme Court cases have repeatedly interpreted Wheel-

ing Bridge II as being premised on this rule. See, e.g., United States v.

Chandler-Dunbar Water Power Co., 229 U.S. 53, 70 (1913) (citing

Wheeling Bridge II for the proposition that “[i}t is for Congress to decide

what is and what is not an obstruction to navigation”); Gibson v. United

States, 166 U.S. 269, 272 (1897) (noting that in Wheeling Bridge II, “it

was ruled that the power of congress to regulate commerce incluves the

regulation of intercourse and navigation, and consequently the power to

determine what shall or shall not be deemed, in the judgment of law, an

obstruction of navigation”); see also United States v. Klein, 80 U.S. (13

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The language that the Court used in Wheeling Bridge

I] is instructive:

[T]hat part of the decree, directing the abatement of

the obstruction, is executory, a continuing decree,

which requires not only the removal of the bridge,

but enjoins the defendants against any reconstruc-

tion or continuance. Now, whether it is a future

existing or continuing obstruction depends upon the

question whether or not it interferes with the right

of navigation. If, in the meantime, since the decree,

this right has been modified by the competent

authority, so that the bridge is no longer an unlaw-

ful obstruction, it is quite plain the decree of the

court cannot be enforced. There is no longer any

interference with the enjoyment of the public right

inconsistent with law, no more than there would be

where the plaintiff himself had consented to it, after

the rendition of the decree.

Wheeling Bridge II, 59 U.S. (18 How.) at 431-32.

In these cases, and many others, see, e.g., Agostini v.

Felton, __ U.S. __, 117 S. Ct. 1997, 2018 (1997) (order-

ing the district court to vacate “a continuing injunction

entered some years ago in light of a bona fide, signifi-

cant change in subsequent law”); Rufo v. Inmates of Suf-

folk County Jail, 502 U.S. 367, 388 (1992) (“A consent

decree must of course be modified if, as it later turns

out, one or more of the obligations placed upon the par-

Wall.) 128, 146-47 (1871) (“[In Wheeling Bridge IT] the court was left

to apply its ordinary rules to the new circumstances created by the act.

In the case before us no new circumstances have been created by leg-

islation.” (emphasis added)); cf. Robertson v. Seattle Audubon Soc’y, 503

U.S. 429, 438 (1992) (concluding that a revised environmental statute,

which mentioned specifically two pending federal cases, did not violate

the Separation of Powers because it “compelled changes in law, not find-

ings or results under old law”).

66a

ties has become impermissible under federal law.”), the

legislative and executive branches acted, within their

powers, to alter the law, and the courts inevitably and

properly adjusted their prior decrees to make the judg-

ments conform to the law as it had come to be. Jn none

of these cases, however, did the political branches them-

selves attempt to modify a court judgment. And in none

of them did they order a court to do so. The fact that

these branches undoubtedly wished to bring about the

result achieved, and that they enacted the law with the

expectation that the courts would inexorably be led to

alter their prior rulings, in no way undermined the valid-

ity of what the political branches did. . . on their side

of the constitutional line.

When, instead, the legislature has sought on its own to

modify a court decree, when it has ordered the alteration

or reopening of a final judgment, the Supreme Court has

expressly barred it from doing so. That is precisely what

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

told us is forbidden by the doctrine of Separation of

Powers. As the Court stated in Plaut, “We know of no

previous instance in which Congress has enacted retroac-

tive legislation requiring an Article III court to set aside

a final judgment, and for good reason. The Constitu-

tion’s separation of legislative and judicial powers

denies it the authority to do so.” 514 U.S. at 240; see

also Hayburn’s Case, 2 U.S. (2 Dall.) 408, 411 (1792)

(opinion of Wilson and Blair, JJ., and Peters, D.J.) (not- -

ing that Congress cannot interfere with the judicial

determination that a claimant has a right in the future to

receive a pension); id. at 413 (opinion of Iredell, J., and

Sitgreaves, D.J.) (same).!°

10 The majority emphasizes that it is not deciding the application of

United States v. Klein, 80 U.S. (13 Wall.) 128 (1871), to this case, not-

ing that plaintiffs chose not to pursue the Klein argument, which they

67a

The distinction is simple and directly germane to the

case before us. If the PLRA constitutionally deprives the

federal (and state) courts of jurisdiction to enforce con-

sent decrees of the sort before us, then the courts

affected will necessarily refuse to give future effect to

these decrees. If instead the PLRA seeks directly to

order the same courts to alter, modify, or terminate the

decrees themselves, then it attempts to do exactly what

has never been permitted. For then it grants the legisla-

tive and the executive branches naked power over the

courts and their holdings. Such a grant impermissibly

crosses the fence and trespasses on the judicial terrain.

In upholding this unprecedented infringement, the in

banc court (like the other circuits that have read the

PLRA directly to terminate the consent decrees) relies

on dicta in Plaut. The Court in Plaut, upholding the

made to the panel, before the in banc court. Accordingly, the question

remains open. I believe that interpreting the PLRA provisions before us

to mean what the majority reads them to mean renders the provisions

violative of both Plaut and Klein. In Klein, the Supreme Court held that

the Separation of Powers doctrine is violated when Congress prescribes _

a rule of decision for courts to follow without permitting courts to exer-

cise their judicial powers independently. See id. at 146-47. The PLRA,

on the majority’s reading, not only reopens final judgments by directing

federal courts to cancel existing decrees, it also appears to dictate the

rule of decision for a distinct group of Article III cases in violation of

Klein.

What is deeply troubling, however, is that, although the majority today

purports to leave the Klein question open, by interpreting the PLRA in

the manner that it has, it precludes a future panel of this Court (faced

with another challenge to the PLRA in which a Klein argument is pur-

sued) from interpreting the PLRA in a manner that would avoid the

grave constitutional difficulties under Klein that inhere in the majority’s

interpretation. Such a future panel will therefore be forced to address the

Klein issues head on—and might perhaps be led to strike down the

PLRA provisions that would clearly survive on the Benjamin panel’s

reading of the law. The statute would then fall—irony of ironies—as a

result of the majority’s desire to apply a non-existent congressional

intent in the case before us.

68a

strictest form of Separation of Powers, differentiated

Wheeling Bridge II from the case then before it. It stated

that Wheeling Bridge II distinguished itself, since it

involved legislation that only “altered the prospective

relief of injunctions,” rather than a current judgment.

Plaut, 514 U.S. at 232. I believe that the majority mis-

reads this statement when it says that legislatures may

directly terminate judgments so long as they have only

future effects.

It is hard to see why it should make any difference—

for the doctrine of Separation of Powers—whether the

judgment of the judicial branch that is legislatively

interfered with is one that has prospective effect or one

that does not. In both instances, the other branches

directly invade judicial territory. Nor is such a distinc-

tion needed, or even useful, in explaining Wheeling

Bridge II. The difference, as previously noted, between

present and future effects can be crucial when the leg-

islative and executive branches have not sought to alter

a judgment but have instead promulgated a law that

alters the legal rules on which the judgment was based.

In such cases—for example, Wheeling Bridge I]—it is

clearly to be expected that a court will modify a judg-

ment’s prospective effect. And, since there are no imped-

iments to its doing so, that judicial modification is

inevitable. See, e.g., System Fed’n, 364 U.S. at 647

(requiring such a change); Swift & Co., 286 U.S. at 114

(same). Conversely, it is rare that the courts have the

authority to alter a judgment that has no future conse-

quences. See, e.g., Agostini, 117 S. Ct. at 2018 (“Inter-

vening developments in the law by themselves rarely

constitute the extraordinary circumstances required for

relief under Rule 60(b)(6). . . .”). But when they do,

the rule of Wheeling Bridge II would apply to these

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judgments as well. See Pioneer Investment Servs. Co. v.

Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 393-

94 (1993) (citing with approval Klapprott v. United

States, 335 U.S. 601, 613-14 (1949) (opinion of Black,

J.) (permitting a judgment that had become final four

years earlier to be reopened under Rule 60(b) in the

interest of justice)); Matarese v. reFevre, 801 F.2d 98,

106 (2d Cir. 1986) (“A postjudgment change in the law

having retroactive application may, in special circum-

stances, constitute an extraordinary circumstance war-

ranting vacation of a judgment.” (emphasis added)).

All of these are totally different from the situation that

occurred in Plaut (and not in Wheeling Bridge IJ). In

Plaut, the legislative and executive branches purported

to modify a judgment on their own. As such, they man-

ifestly interfered with the judicial branch, and endan-

gered the Separation of Powers. That, moreover, would

have been so even if the judgment they abused impli-

cated future instead of present effects. For then too,

Congress and the President, by directly altering an order

of the court, would have impermissibly invaded the judi-

cial terrain. And that is precisely what Plaut says they

may not do.!!

11 Professors Tushnet and Yackle argue similarly:

Plaut’s analysis suggests that Wheeling Bridge cannot stand for the

broad proposition that Congress may alter any injunction what-

soever. That broad proposition would mean that the fundamental

separation-of-powers principle articulated in Plaut does not apply

to injunctive actions at all. But nothing in the Court’s statement of

the principle suggests why congressional interference with actions

at law is more problematic than congressional interference with

equitable remedies.

The Court in Plaut indicated the way out. . . Federal Rule of

Civil Procedure 60(b), which authorizes the federal courts to

relieve parties from a final judgment for specified reasons. . .

(footnote continued)

70a

The majority today seeks to blur the distinction by

holding explicitly what most of the other circuits have

held at least implicitly: that Congress may only directly

affect an existing injunctive decree if the legislature both

has the power to alter the underlying substantive law and

has actually exercised that power in the statute at issue.

See ante at 33. This express limitation is highly desir-

able in that it precludes Congress from seeking to mod-

ify prior judgments both in areas as to which it has no

underlying constitutional authority (for example, diver-

sity cases), and also in areas where it has the authority,

but has not consciously chosen to exercise it. The major-

ity’s limitation, however, in no way cures the funda-

mental Separation of Powers defect. It remains the fact

that, under the majority’s ruling, the legislature is, for

the first time in our history, permitted directly to order

courts to modify their final judgments. And the court

fails to explain why such a direct infringement is more

acceptable when dealing with judgments that have long-

term future effects (like injunctions) than it is as to judg-

[and] reflects and confirms the courts’ own inherent and discre-

tionary power.

The Court’s emphasis on judicial discretion, which might be

understood in this context as an essential attribute of the judicial

power protected by Plaut’s separation-of-powers holding, explains

the limits of Wheeling Bridge’s holding. In Wheeling Bridge the

interstate commerce clause gave Congress the power to declare that

the bridge did not interfere with interstate commerce.

Mark Tushnet & Larry Yackle, Symbolic Statutes and Real Laws: The

Pathologies of the Antiterrorism and Effective Death Penalty Act and the

Prison Litigation Reform Act, 47 Duke L.J. 1, 61-62 (1997) (footnotes

and internal quotation marks omitted).

As Alexander Hamilton wrote in the Federalist Papers, “[the] legis-

lature without exceeding its province cannot reverse a determination

once made, in a particular case; though it may prescribe a new rule for

future cases.” The Federalist No. 81, at 484 (Alexander Hamilton) (Clin-

ton Rossiter, ed., 1961) (emphasis added).

Tla

ments the effects of which are more proximate (like

restitution or damages).

The majority’s approach, moreover, highlights the

manifest absurdity of ascribing to Congress the intent to

affect directly the decrees in this case. The majority’s

holding means that in order to command direct termi-

nation of the decrees, Congress must have changed the

underlying law so as to render the decrees unenforce-

able. But once it has done so—and we all agree that it

has—the Supreme Court’s jurisprudence, as set forth in

cases like System Federation, 364 U.S. 642 (1961), and

Swift & Co., 286 U.S. 106 (1932), makes clear that

lower courts are themselves obligated to comply with the

altered underlying law and to cease to enforce the

decrees. Why on earth then would Congress intend to do

more and seek to void the decrees directly when the

same result would occur anyway? And why should we

read the legislature’s admittedly awkward language to do

this when such a reading has radical consequences for

the traditional division between courts and legislatures?

Indeed, the fact that the majority relies upon System

Federation and Swift & Co. to make its point, see ante at

33-34, drives home the fact that holding that Congress

terminated the decrees themselves (rather than that it

altered the underlying law) does not affect the practical

result in this case. It merely allows Congress gratu-

itously to undermine the doctrine of the Separation of

Powers and invade what is traditionally the province of

the judiciary.

C. The Formal Structure of Separation of Powers

Doctrine

The distinction between altering the law underlying a

judgment—thus leading the courts to modify a judg-

72a

ment—and altering the judgment itself may seem a for-

malistic one. But that is not a valid criticism.!? As Jus-

tice Scalia, the author of the majority opinion in Plaut,

wrote in another context, “Of all the criticisms leveled

against textualism, the most mindless is that it is ‘for-

malistic.’ The answer to that is, of course it’s formalis-

tic! The rule of law is about form... . Long live

formalism. It is what makes a government a government

of laws and not of men.” Antonin Scalia, Common-Law

Courts in a Civil Law System: The Role of United States

Federal Courts in Interpreting the Constitution and

Laws, in A Matter of Interpretation: Federal Courts and

the Law, at 3, 25 (Amy Gutmann ed., 1997) (emphasis in

original). His statement applies equally here.'3

The Separation of Powers doctrine, Plaut tells us, is

a “structural safeguard rather than a remedy to be

applied only when a specific harm, or risk of specific

12 Though the majority’s approach and mine have the same effect on

prisoners’ rights in the case before us, the difference between us may not

be totally formal. The majority’s position may permit the legislature to

order the precise response that the courts must make as a result-of an

alteration in the underlying law. Thus, the majority seems to countenance

a legislative order that a decree be vacated, when in fact termination of

the judgment would equally well comport with the changed law. In the

instant case, the issue is of no practical significance, but it might well be

in other situations. It is possible that the majority’s holding means to be

more limited still and that its decision allows Congress to order a spe-

cific change in a judgment only when that change is the sole way of

adapting the judgment to the altered underlying law. If that is so, the

absurdity of ascribing such an intent to Congress becomes even clearer,

for then under System Federation, the courts are bound to make the iden-

tical change on their own.

13 This, of course, is not to suggest that the Separation of Powers doc-

trine is only about formalisms. Separation of Powers notions may well

make some results unconstitutional no matter how they are obtained.

Thus, Congress presumably could not require Article III judges regularly

to take on prosecutorial functions, regardless of whether it did so directly

or indirectly.

LR MGR EIN Gt

73a

harm, can be identified.” Plaut, 514 U.S. at 239. And the

doctrine is a “prophylactic device, establishing high

walls and clear distinctions because low walls and vague

distinctions will not be judicially defensible in the heat

of interbranch conflict.” Jd.

It is no accident, therefore, that what some may label

as “formalisms” are a mainstay of the Court’s Separation

of Powers and Federalism decisions. The Court’s recent

decision in Printz v. United States, __ U.S. __, 117 S. Ct.

2365 (1997), reiterated this point:

Much of the Constitution is concerned with setting

forth the form of our government, and the courts

have traditionally invalidated measures deviating

from that form. The result may appear “formalistic”

in a given case to partisans of the measure at issue

. . But the Constitution protects us from our

own best intentions: It divides power among

sovereigns and among branches of government pre-

cisely so that we may resist. . . temptation. . .

Id. at 2383 (quoting New York v. United States, 505 U.S.

144, 187 (1992)) (internal quotation marks omitted).

In other words, when great structural boundaries are at

stake, the Court has repeatedly made clear that how

something is done (i.e., whether a judgment is directly

altered or whether the underlying law is changed in such

a way as to lead the courts to modify their judgments)

can be at least as important as the result that is

achieved. '4

14 Nowhere is this exemplified more dramatically than in the Court’s

Eleventh Amendment jurisprudence. See, e.g., Osborne v. Bank of United

States, 22 U.S. (9 Wheat.) 738, 857 (1824) (positing the critical dis-

tinction between suing a state eo nomine or its officers for Eleventh

Amendment purposes: “it is the party named in the record”). A person

suing a state in federal court, therefore, must sue its officers as opposed

74a

In the context of the Separation of Powers, it is the

formal independence of the courts that is safeguarded by

an absolute rule—never before infringed—that says that

court judgments are not to be touched by the legislative

and executive branches. The basic power to legislate

(and to enforce that legislation) in the public interest is

not undercut by this formal rule (that is, the power to

achieve a result in terms of prisoners’ rights is unal-

tered), but the dignity of the courts gua courts is pro-

tected by it.!5

to the state itself—even though the result is the same. Similarly, one who

wishes to sue a state officer for money damages in federal court must

label the suit as against the officer in his or her individual capacity; oth-

erwise the claim is barred by the Eleventh Amendment. See, e.g., Edel-

man v. Jordan, 415 U.S. 651, 678 (1974) (holding that the Eleventh

Amendment bars claims for retroactive damages that run against the

state treasury). Thus, the Eleventh Amendment protects the formal

Sovereignty of the state by rules that in most cases do not alter results.

15 The same approach has been consistently applied by the Supreme

Court in other areas to preserve the delicate balance among the branches

of government as well as between our federal and state governments.

See, e.g., City of Boerne v. Flores, __ U.S. __, 117 S. Ct. 2157, 2164

(1997) (striking down the Religious Freedom and Restoration Act, not-

ing that “[Congress] has been given the power ‘to enforce,’ not the

power to determine what constitutes a constitutional violation”); Printz,

__ U.S. _., 117 S. Ct. at 2378 (striking down portions of the Brady Act,

which imposed certain regulatory obligations on state law enforcement

officials, based in part on the fact that the law would effect a dimin-

ishment of the executive branch’s power to administer the laws); New

York, 505 U.S. at 187-88 (holding a federal hazardous waste law impos-

ing obligations on states unconstitutional for compelling states “to enact

or administer a federal regulatory program”); Gregory v. Ashcroft, 501

U.S. 452, 470 (1991) (requiring a clear statement by Congress demon-

strating its intent that the Age Discrimination in Employment Act apply

to state judges); Bowsher v. Synar, 478 U.S. 714, 726 (1986) (“Congress

cannot reserve for itself the power of removal of an officer charged with

the execution of the laws except by impeachment.”); INS v. Chadha, 462

U.S. 919, 958-59 (1983) (striking down a single-house legislative veto

of executive decisions respecting the suspension of alien deportation

orders); id. at 964 (Powell, J., concurring in the judgment) (finding that

the exercise of the legislative veto with respect to six individuals was

“clearly adjudicatory”). In Printz, the Court posited that the “separation

75a

D. What the PLRA Intended To Do

Thus, if we were to conclude that Congress intended

by the PLRA directly to terminate the consent decrees,

and thereby on its own to modify judgments, we would

have to face the question of whether such a radical step

was constitutionally permitted despite its patent infringe-

ment of the line that divides the courts from the other

branches. But, as we have seen (as the in banc majority

itself admits, and as the panel argued at length), the lan-

guage of the statute requires no such interpretation. See

ante at 24-26; Benjamin, 124 F.3d at 167. Is that reading

nonetheless mandated by the legislative history of the

PLRA? I think not.

Let me be clear that I am not, in this respect, simply

relying, as did the panel, on the mass of cases that sug-

gest (properly) that statutory language should be read to

avoid serious constitutional difficulties,'® though those

cases would certainly be enough to justify my reading.

In the case before us, the argument against the existence

of a congressional intent to terminate the consent

decrees finds a far simpler grounding. If—as I believe

of the two spheres is one of the Constitution’s structural protections of lib-

erty.” 117 S. Ct. at 2378. And it declared that the separation and inde-

pendence of the branches provide a commensurate and equally important

structural protection. See id. (citing Gregory v. Ashcroft, 501 U.S. 452, 458

(1991); The Federalist No. 51, at 323 (James Madison) (Clinton Rossiter

ed., 1961); The Federalist No. 28, at 180-81 (Alexander Hamilton)).

16 See, e.g., DeBartolo v. Florida Gulf Coast Bldg. & Constr. Trades

Council, 485 U.S. 568, 575 (1988); Crowell v. Benson, 285 U.S. 22, 62

(1932); cf. Almendarez-Torres v. United States, U.S. __, 118 S. Ct.

1219, 1228 (1998) (“[T]hose who invoke the doctrine must believe that

the alternative is a serious likelihood that the statute will be held uncon-

stitutional. Only then will the doctrine serve its basic democratic func-

tion of maintaining a set of statutes that reflect, rather than distort, the

policy choices that elected representatives have made. For similar rea-

sons, the statute must be genuinely susceptible to two constructions after,

and not before, its complexities are unraveled. . . .”).

76a

can be demonstrated—everything that Congress sought

to achieve by this part of the PLRA is as well accom-

plished by terminating the future effects of the decrees

as by destroying the judgments themselves, it is ill-

advised to suppose that Congress, by its ambiguous lan-

guage, meant to do something that raises such severe

Separation of Powers problems.

Before one assumes that, regardless of results,

Congress intended to be so radical, one must, I suggest,

have some direct indication that the legislature wanted

specifically to infringe on the dignity of the courts, and

to do so despite the formal requirements of the Separa-

tion of Powers doctrine. One must, in other words, have

a clear sign that it did not merely wish to achieve certain

ends with respect to prisoner litigation. Yet, neither the

in banc court, the First Circuit, nor any other court that

has dealt with these provisions of the PLRA has cited

anything that Congress might have tried to accomplish by

this part of the PLRA that is not obtained precisely to the

same degree regardless of whether the decrees are them-

selves terminated or, instead, the federal and state courts

are denied jurisdiction to give the decrees future effect.

The in banc majority argues at length that Congress

meant to get the federal courts out of the business of

running jails, and it cites any number of congressional

statements to that effect. I agree. But whether the con-

sent decrees before us are terminated (or, for that matter,

vacated) makes no difference whatsoever in this regard,

so long as it is the case that federal courts are denied

jurisdiction to give future effect to the decrees. And that

is precisely what will occur under my alternate reading

of the statute.’

17 This, of course, is only true in either instance where the need-nar-

rowness-intrusiveness standard is not met. See 18 U.S.C. § 3626(b)(3).

77a

The majority states that Congress sought to preclude

state courts—as well as federal ones—from giving

future effect to the decrees. It therefore interprets the

PLRA as preventing a prisoner (barred from getting

enforcement of the consent agreement in federal court)

from going to state court and getting the decree enforced

there. See ante at 22. But, once again, the posited con-

gressional aim is as readily accomplished by giving the

Statutory language its natural meaning so that the PLRA

(by limiting the jurisdiction of state as well as federal

courts) terminates future relief under the decrees as it is

by ending the decrees themselves.

There remains the question of whether Congress

intended to prohibit state contract suits designed to vin-

dicate prisoner claims that might also be recognized in

the decrees. And that question, which is the second issue

as to which I disagree with the majority, is a complicated

one about which I will have more to_say anon. For pur-

poses of the issue that I am currently addressing, how-

ever, the question can be dealt with quickly. The survival

of state law contractual rights vel non is unaffected by

whether the decrees themselves are terminated or

whether, instead, future relief under the decrees is for-

bidden in both state and federal courts. The issue of

whether private state contractual rights perdure remains

the same on the reading that would end the decrees

themselves and on the reading that would not directly

touch the judgments but would bar federal and state

courts from granting future relief under them.!®

18

It is not, moreover, harder to say that such rights are abrogated if the

decrees themselves are left untouched and only their future effects are

affected than it is to say that they do not survive if the decrees are

deemed terminated. See infra Part II.B.

78a

It follows that it makes no sense to assume that

Congress intended under the PLRA to do something

never before done. Since everything it wished to achieve

is as fully accomplished by less radical methods, courts

should not just hesitate, they should be bound to refrain,

from giving the congressional language an awkward

(though not impossible) reading, which, having no pur-

pose, constitutes a gratuitous contravention of the bound-

aries established by the Separation of Powers doctrine.

E. Are the Limitations Imposed by the PLRA on State

and Federal Court Jurisdiction Constitutional?

Before I turn to the second issue in this case—the sur-

vival of state law contractual rights under the PLRA—I

must briefly address the question of whether Congress

can constitutionally do what I read the PLRA as doing,

namely limit severely the jurisdiction of both federal and

State courts so as to bar most prospective relief under the

consent decrees involved in the case before us. If

Congress can so restrict the courts’ jurisdiction, then—

as I have just argued—the same results are achieved

under my reading of the statute as under that of the in

banc majority. If not—if the only way Congress can con-

trol the actions of state or federal courts is by terminat-

ing the decrees themselves—then my argument that

Congress could not have intended the radical step of

directly altering a court judgment would be seriously

undercut. Fortunately, there can be no doubt that the

restrictions on both federal and state court jurisdictions

that I believe the PLRA mandates are constitutionally

valid.

Whatever may be the outer boundaries of Congress’s

power to restrict the jurisdiction of the lower federal

79a

courts,!® there is no question that the power of such

courts can be limited to cases involving federal rights.

See Lockerty v. Phillips, 319 U.S. 182, 187 (1943); Lauf

v. E.G. Shinner & Co., 303 U.S. 323, 330 (1938). The

PLRA affects only cases in which there is no finding that

the “relief is. . . necessary to correct the current and

ongoing violation of the Federal right” by “the least

intrusive means” possible. 18 U.S.C. § 3626(b)(3).

Hence the validity of such a restriction of jurisdiction

cannot be seriously questioned. See ante at 36-38; Ben-

jamin, 124 F.3d at 169-70.

The issue is only slightly more complicated with

respect to state courts. What, one might ask, is the con-

stitutional basis for a federal limitation on the jurisdic-

tion of state courts? The answer is that the PLRA

prohibits state courts from giving effect to relief only

when that relief is embodied in consent decrees that

were entered into in settlement of suits claiming federal

rights. Because the suits that culminated in the federal

court decrees involved such “national” rights, Congress

both directly and under the Necessary and Proper Clause

can bar state courts from giving future relief under them.

The original claims that gave rise to the decrees were

federal ones, and Congress, which has authority over

such claims, surely can restrict any court from giving

19 See, e.g., Lockerty v. Phillips, 319 U.S. 182, 187 (1943) (“{NJothing

in the Constitution. . . requires Congress to confer equity jurisdiction

on any particular inferior federal court.”); Lauf v. E.G. Shinner & Co.,

303 U.S. 323, 330 (1938) (upholding the provision of the Norris-

LaGuardia Act limiting the ability of the federal courts to grant injunc-

tive relief, and noting that “(t}here can be no question of the power of

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

of the United States”). But see Henry M. Hart, Jr., The Power of

Congress to Limit the Jurisdiction of Federal Courts: An Exercise in

Dialectic, 66 Harv. L. Rev. 1362, 1397 (1953) (positing constitutional

limits on Congress’ control of federal court jurisdiction).

80a

future relief in exchange for their relinquishment. The

question is, therefore, not one of federal power—the

power is there. It is one of whether Congress intended to

use that power. And the majority holds that Congress did

indeed intend such a limitation.?°

I conclude, therefore, that everything that Congress,

by its language and by its intent as expressed in the leg-

islative history of the PLRA, wished to accomplish can

be constitutionally effectuated without reading the

statute to order a direct infringement of court judg-

ments.?! Since the statute in no sense requires such a

20 While the panel disagreed, I do not think that the majority is clearly

wrong is its holding. The words of the statute barring future relief under

the decrees are not expressly limited to federal courts. And there is some

legislative history indicating that Congress foresaw the possibility of

attempts to obtain future relief under the decrees in state courts and

wished to forbid it. See supra Part 1.A. Together these are enough to

make plausible the conclusion that future relief based on the decrees was

meant to be made unavailable in either set of courts.

21 Since the majority interprets the PLRA as directly requiring the ter-

mination of the decrees at issue while I read the statute as doing no more

than changing the underlying law so as to bar prospective relief under

the decrees, it may seem strange that I concur in the court’s holding “ter-

minat[ing] (the) forward-looking provisions of [the] consent decrees.”

Ante at 45. But, in fact, even under my reading of the PLRA, the court’s

result remains appropriate.

In System Federation, the Supreme Court instructed the lower courts

to respond to legislative changes in underlying laws by opening and

amending judgments that were still in their control. It follows that after

the PLRA has, on my interpretation, prohibited future enforcement of the

consent decrees before us, the courts are bound to react to that change.

They may in principle do so in one of at least three ways. First, they may

decide to do nothing and, leaving the decrees in place, decline to enforce

their forward-looking provisions. Second, they may do what the district

court and various other circuits have done and conclude that the best

judicial reaction to the prohibition on future enforcement is to vacate the

decrees themselves. (The fact that the statute does not mention vacatur

no more precludes that reaction than did the fact that the statute at play

in Wheeling Bridge I] never mentioned the previous injunction keep the

Wheeling Bridge Court from dissolving that injunction.) Third, they may

8la

reading, and since such a reading can properly be viewed

as “awkward” and “not natural,” it seems to me extraor-

dinarily misguided so to interpret the Act. In doing this,

the in banc majority (and the other circuits that have

done the same) permits the constitutional walls between

the judiciary and the other branches of government to be

breached—and does so for no reason. A panel of the

Ninth Circuit gave the same reading in order to strike the

statute down.”? It is hard to know which approach is

more damaging to the genuine will of the Congress and

to our constitutional structure.

II. DO PRIVATE STATE CONTRACT CAUSES OF

ACTION SURVIVE THE PLRA?

The second issue that divides me from the in banc

majority is whether a state court can (after passage of

the PLRA) determine that the prisoners_before us, at the

same time that they entered into consent decrees, also

reached a meeting of minds with the entities that they

decide that the most appropriate response to the new law is for the courts

themselves to order the forward-looking provisions of the decrees ter-

minated.

The effect on prisoners’ rights of all three of these reactions is essen-

tially the same, but the third solution strikes me as the most appropriate

response. The statute expressly authorizes the parties to go to court and

seek termination of such forward-looking provisions. See 18 U.S.C.

§ 3626(b)(2). And there seems to me to be no reason why the courts

should not grant precisely this relief. Accordingly, my reading of the

PLRA justifies a court order “terminat[ing) [the] forward-looking pro-

visions of [the] consent decrees.” The majority believes that the statute

itself commanded termination. The effect being the same, I concur in the

court’s result.

22 See Taylor v. United States, 143 F.3d 1178, 1184 (9th Cir. 1998). The

Ninth Circuit has withdrawn the panel opinion in Taylor, and has reheard

the case en banc. See Taylor v. United States, 158 F.3d 1059 (9th Cir.

1998) (en banc) (withdrawing panel opinion and granting rehearing en

banc). :

82a

had sued and that this meeting of the minds constituted

a contract that, in the normal course of things, could be

enforced in state courts. The question is properly divided

into three parts: (1) Can parties to a consent decree be

said under state law to have, independently of that

decree, entered into a valid contract—at least in some

circumstances? (2) If such a contract would—in some

instances—be valid under state law, does the PLRA pro-

hibit its enforcement in state courts? (3) What, if any,

restrictions would a finding that valid state contracts

existed place on future actions by state legislators with

respect to such contracts?

I contend that the in banc majority’s answer to the

first question is probably wrong and, more important,

improperly attempts to decide a question that is purely

one of state law, thereby offending the most fundamen-

tal principles of Federalism. The answer to the second

question is more complicated. Congress surely has the

constitutional authority to prohibit the enforcement of

otherwise valid state contracts when such contracts are

entered into in circumstances like those before us. But,

on the language and history of the PLRA, it is unlikely

that Congress intended to prohibit such state law con-

tracts. More fundamentally, since the issue is not before

us in the current case, we cannot and should not decide

it.23 The answer to the third question is that very few

23 The majority’s opinion, in this respect, is entirely advisory and is not

needed for its holding. Nor can its foray be justified under the guise of

correcting analogous dicta in the panel opinion. In the first place, the

panel’s discussion of the possible survival of state law claims was not

dicta. It was made necessary by the panel’s conclusion that, without the

possibility that such state claims might survive, the PLRA might well be

unconstitutional on various grounds. See, e.g., Benjamin, 124 F.3d at

176. The majority rejects these constitutional claims without hesitation.

That, it has a perfect right to do. But once it has done so, any further dis-

cussion of possible state law actions becomes totally unnecessary. See

Almendarez-Torres v. United States, __ U.S. __, 118 S. Ct. 1219, 1228

83a

restrictions would impede state legislatures from modi-

fying such contracts.

A. Can Parties to a Consent Decree Enter into a

Separate and Potentially Valid State Law Private

Contract?

The question of whether the parties, at the same time

that they concluded the consent decrees, also achieved a

meeting of minds such that a state might deem a state

law contract to have been established, is—by defini-

tion—a State law issue. It is a totally different question

from whether a federal consent decree can itself be

enforced in state courts. By conflating the two issues,

the court permits itself to cast doubt on whether such a

requisite meeting of the minds can exist. But that is not

for a federal court to say. What New York deems a valid

contract is for New York to decide. And for federal

courts to instruct New York on what does or does not

constitute a proper meeting of the minds under New

York law is as grievous a crossing of the boundaries

imposed by Federalism” as the direct legislative alter-

ation of a court judgment is of the boundaries imposed

by the Separation of Powers.

Moreover, it would not be surprising if New York

determined that at least some of the many consent

decrees whose future effects the PLRA seeks to termi-

nate did in fact give rise to state law contractual rights.

(1998). The most that might be justified, to avoid any lingering confu-

sion arising from the panel’s analysis, would be a statement to the effect

that “since the in banc court finds the statute to be constitutional regard-

less of the existence of possible state law claims, it expresses no opin-

ion on the matter and should not be read as agreeing with the panel’s

analysis of such claims.” See infra notes 26, 28.

24 Cf. Gregory v. Ashcroft, 501 U.S. 452, 464 (1991) (requiring a clear

statement from Congress before a federal statute will be read to apply to

state officials).

84a

In this respect, it is important to realize that the consent

decrees that may be affected by the PLRA are many and

highly varied in New York alone. A few—like the ones

in the case before us—have generated a huge cavalcade

of judicial administration and contain terms that were

the result of continuous evolution and articulation over

many years.*> Many others simply settled a claim by giv-

ing the prisoner claimants a particular future benefit, and

have lain judicially dormant ever since. To make a one-

size-fits-all abstract judgment with respect to such dif-

fering agreements, as the majority appears to do, seems

wrong to me. And it would be wrong even if the major-

ity had the authority to do it.”

In the end, though, the essential point remains the

same. For federal courts to tell states what they may, or

should, or might consider to be contractually enforceable

25 The panel opinion noted, for example, that the decrees in the instant

case

have generated a judicially administered structure comprising over

ninety related court orders and extending to more than thirty dis-

crete areas of prison administration. The areas include the handling

of detainees’ mail and property, cell and body searches, mainte-

nance of the physical plant, food service, and health and sanitary

issues. . . . In 1982, pursuant to the agreement of the parties, a

court monitoring agency called the Office of Compliance Con-

sultants (“OCC”) was created. The OCC has monitored compliance

with the Consent Decrees since that time.

Benjamin, 124 F.3d at 165.

26‘ The Third Circuit has recently reached the same conclusion in Impris-

oned Citizens Union v. Ridge, __ F.3d ___, 1999 WL 93802, at *1 (3d Cir.

Feb. 25, 1999):

If the Inmates have valid contractual claims that survive termina-

tion, such claims are “based solely upon. . . [Pennsylvania] law”.

. . . The Inmates are therefore free to pursue relief in the Penn-

sylvania courts. It is not our province to speak to the validity of any

“claims arising under [Pennsylvania] law,” or to award relief there-

for.

Id. at *11.

Ming SNA tc SE HSE Be

85a

rights is simply not proper. The in banc court’s opinion

seems to do this, and I can only conclude that in its

understandable eagerness to make clear that the consent

decrees themselves are not enforceable in state courts, it

went beyond what it can appropriately decide without

perhaps intending to do so.?? Moreover, since we cannot

rule on what is outside our authority to determine, I

believe that the statements by the in banc court with

respect to the existence of such state law contracts, nec-

essarily, have no legal effect.

B. Does the PLRA Constitutionally Ban the State

Courts’ Enforcement of Contracts That Would

Otherwise Be Valid Under State Law?

Holding that state law must decide whether a contract

(enforceable in state courts) could have been created by

the same circumstances that gave rise to the consent

decrees, however, does not resolve the issue before us.

27 The panel opinion, in noting that some of these decrees might con-

stitute state law contracts that could be enforced in state courts, observed

that a federal question would arise if state courts discriminated against

those contracts embodied in federal consent decrees, or those that were

entered into in exchange for the giving up of federal claims. See Ben-

jamin, 124 F.3d at 178-79 & n.23. That is surely correct, cf. Howlett v.

Rose, 496 U.S. 356, 367-72 (1990) (holding that state courts’ refusal to

entertain a § 1983 claim against a school district when state courts enter-

tained similar state-law actions against state defendants violated the

Supremacy Clause), but can be misunderstood. The point that the panel

sought to make was not that state courts were bound to find valid state

contracts embodied in the consent decrees. Far from it. All the panel said

was that a state that held certain agreements to be valid state contracts

could not discriminate against identical meetings of the minds and refuse

to enforce them, simply because they were entered into in exchange for

federal claims. State law can and must determine what it deems to be

valid contracts and can do so fully and without the kind of interference

that I suggest is implicit in the in banc court’s opinion. What state law

cannot do, without raising significant federal questions, is to refuse to

enforce on* of two or more otherwise valid contracts simply because that

contract involves federal rights.

86a

We must also ask—even if the conduct of the parties

gave rise to a state law contract—whether that agree-

ment was made unenforceable by the PLRA. And this

question itself divides into three parts: (1) whether fed-

eral law can constitutionally bar enforcement of other-

wise valid state law contracts like the ones before us, (2)

whether it did so through the PLRA, and (3) whether this

question is properly before us.

The answer to the first question is an easy yes. For the

same reasons that federal law can bar state courts from

giving future effect to these consent decrees, it can also

bar enforcement in state courts of contracts that have

arisen, if at all, in circumstances like those involved in

the instant case. The contracts that state law might deem

to have been made are all agreements for which the

alleged consideration was the giving up of federal claims

(and usually federal constitutional claims). There can be

no doubt that Congres

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