Opposition Brief — Benjamin v. Kerik

| Bupreme Court, 280"

FILED

9 JUL 2> 1999

No. 98-1-02042

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

JAMES BENJAMIN, et al.,

Petitioners,

—- against -

BERNARD KERIK,

Commissioner, New York City Department

Correction, ef al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

MICHAEL D. HESS

Corporation Counsel

Attorney for Respondents

100 Church Street

New York, New York 10007

(212) 788-0999 or 1010

LEONARD J. KOERNER*

LORNA B. GOODMAN

JUNE R. BUCH

FLORENCE A. HUTNER

of Counsel

* Counsel of Record

COUNTER-QUESTIONS PRESENTED

Whether Congress has the power to alter the

prospective effect of continuing judicial

decrees?

Whether the termination of the Consent

Decrees under the Prison Litigation Reform

Act of 1996, 18 U.S.C. § 3626(b), violates

the rights to constitutional due process of

inmates who had been the beneficiaries of a

prospective injunctive consent decree?

Whether the termination of the Consent

Decrees under the Prison Litigation Reform

Act of 1996, 18 U.S.C. § 3626(b), violates

the rights to equal protection of the laws of

a group that is not a suspect class?

TABLE OF CONTENTS

COUNTER-QUESTIONS PRESENTED ......... i

TABLE OF CONTENES os vccvucnesvucsees ii

TABLE OF AUTHORITIES «ssc csecucveves iv

COUNTER-STATEMENT OF THE CASE ...... |

The Prison Litigation Reform Act of 1995 .. 1

Tee Consett DOCS. 5 ccc e ener wees 3

Conditions in the Jails as of 1996 ........ 5

ProceeGmgs BOW «<6 neva hens s eeees 7

REASONS FOR DENYING THE WRIT. ....... 8

I. THERE IS NO COMPELLING REASON

UNDER RULE 10 FOR REVIEW OF THE

DECISION BELOW. ........... 8

II. THE TERMINATION PROVISION OF

THE PLRA, 18 U.S.C. § 3626, HAS

CONSISTENTLY BEEN UPHELD AS

CONSITIUIFONAL ...ccseee0 10

A. Congress has the power to alter the

prospective effect of continuing

judicial decrees ......00:: 10

-ii-

B. Section 3626(b) is consistent with

petitioners’ due process and equal

protection rights ......... 17

a wue Process ....... 17

2 Equal Protection ..... 20

es 22

-lli-

TABLE OF AUTHORITIES

CASES

Agostini v. Felton,

521 U.S. 203, 117 S. Ct. 1997 2006 (1997) . 13

Benjamin v. Jacobson,

172 F.3d 144 (2d Cir. 1999)

a er ee ee ee ee passim

Benjamin v. Jacobson,

124 F.3d 162 (2d Cir. 1997) .....7.. 7, 20

Benjamin v. Jacobson,

935 F. Supp. 332 (S.D.N.Y. 1996) . 7, 18, 20

Benjamin v. Jacobson,

923 F. Supp. 517 (S.D.N.Y. 1996) ....... 5

Board of Education v. Dowell,

Ee | 5, 15

Denike v. Fauver,

3 F. Supp.2d 540 (D.N.J. 1998) ......... 14

Dougan v. Singletary,

129 F.3d 1424 (lith Cir. 1997) (per curiam),

cert. denied, U.S. _, 1188S. Ct. 2375

Cn x s6 keke ees eee eave ee 1, 9 ae

Freeman v. Pitts,

ee ek Se 4 wag ee Be wo oe 3. is

-iV-

Gavin v. Branstad,

122 F.3d 1081 (8th Cir. 1997), cert. denied,

__ U.S. _, 118 S. Ct. 2374 (1998) 1, 9, 20, 22

Hadix v. Johnson,

133 F.3d 940 (6th Cir. 1998),

cert. denied sub nom. Hadix v. McGinnis,

__ U.S. _, 118 S. Ct. 2368 (1998) .. 1,9, 22

Heller v. Doe,

ye Me i 2 re eee 20

Imprisoned Citizens Union v. Ridge,

169 F.3d 178 (3d Cir. 1999) .... 1,9, 14, 21

Inmates of Suffolk County Jail v. Rouse,

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

__ U.S. _, 118 S. Ct. 2366 (1998)1, 9, 20, 21-22

Lewis v. Casey,

Dae Use POD CED a hte en 1, 3, 4

Logan v. Zimmerman Brush Co.,

Be ot Sr 19

Martin v. Hadix,

67 U.S.L.W. 4500 (June 21, 1999) ...... 12

Newsweek, Inc. v. Florida Department of Revenue, -

we ee SE, 6 es See eeaee nes 19

Pennsylvania v. Wheeling and Belmont Bridge Co.,

59 U.S. (18 How.) 421 (1855) .... 11, 12, 13

Plaut v. Spendthrift Farms,

514 U.S. 211 (1995) ..... 10, 11, 12, 13, 14

Plyler v. Moore,

100 F.3d 365 (4th Cir. 1996), cert. denied,

Tae UB... FS7Tt Geeee 6 6 ec tw ecse y Oe

Romer v. Evans,

ee ef. ee ee 20

Rufo v. Inmates of Suffolk County Jail,

Se Ue DOU CRUD eh ec ee etree 12, 13

System Federation No. 91 v. Wright,

Soe Ue Gee Cee no ee vee ceuces 12, 18

Taylor v. United States,

143 F.3d 1178 (9th Cir.), superseded by

1999 U.S. App. Lexis 13405 (9th Cir.

PS Te G8 8 se cee eee 2, 9, 14

Thornburgh v. Abbott,

Gee Ue. Ga Geek erences 21

Tonya K. v. Board of Education,

847 F.2d 1243 (7th Cir. 1988) ......... 18

Turner v. Safley,

ee Ps oe 21

United States v. Klein,

80 U.S. (13 Wall.) 128 (1872) .......... 14

-Vi-

United States v. Swift,

Bee Wee WO CRD ov he ewe eeen 12, 13

Western Union Telegraph Co. v. International

Brotherhood of Electric Workers,

Eso Fae Soo (7 Ce. 1943) wc ces 13

STATUTES

oF ee | re ee passim

Um. 9 TPM. oe Siecle eter eeess 12

Rule 10, Rules of the Supreme Court

ek ee 8, 9, 10

Federal Rule of Civil Procedure 60(b)(5) ........ 15

OTHER AUTHORITY

Eisenberg, Congressional Authority to Restrict

Lower Federal Court Jurisdiction,

ee FR Ff 16

-Vii-

COUNTER-STATEMENT OF THE CASE

The Prison Litigation Reform Act of 1995

On April 26, 1996, Congress enacted the Prison

Litigation Reform Act of 1995' (the “PLRA”) to curtail

undue judicial management of local prisons in the absence

of any ongoing violation of inmates’ federal rights; to

prevent the expansion of consent decrees beyond federal

violations alleged in the complaint; and to reduce the

practical difficulties of modifying prison conditions decrees.

Section 3626 accords with this Court’s admonitions in Lewis

v. Casey, 518 U.S. 343, 116 S. Ct. 2174, 2183 (1996) --

controlling precedent that petitioners fail even to cite -- that

remedial relief in prison conditions cases “must of course

be limited to the inadequacy that produced . . . the injury-

in-fact” established by a plaintiff or plaintiffs, and that

systemwide relief is improper absent systemwide injury-in-

fact. Section 3626 has been upheld as constitutional by

seven Circuit Courts of Appeals and struck down by none,

and this Court has declined to review its constitutionality

five times.”

' Pub. L. No. 104-134, 110 Stat. 1321, §§ 801-810 (Apr. 26, 1996)

(§ 802 codified at 18 U.S.C. § 3626).

2 See Benjamin v. Jacobson, 172 F.3d 144 (2d Cir. 1999) (en banc),

petition for cert. filed June 21, 1999; Imprisoned Citizens Union v.

Ridge, 169 F.3d 178 (3d Cir. 1999); Hadix v. Johnson, 133 F.3d 940

(6th Cir. 1998), cert. denied sub nom. Hadix v. McGinnis, _ 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

(continued...)

Section 3626 defines the contours of prospective

relief that federal courts may order or approve in actions

brought to redress unlawful conditions in state -or local

prisons. Section 3626(a) limits prospective relief in a

prison conditions action to that which is both necessary and

narrowly tailored to correct current unconstitutional

conditions of confinement.? Under § 3626(b)(2), defendants

may move for immediate termination of all prospective

injunctive relief, “whether . . . granted or approved before,

on or after” enactment of the PLRA, on the basis that it

does not meet the need and narrow tailoring requirements

of § 3626(a). The PLRA also includes an express limitation

on the termination provision, mandating that prospective

relief “shall not terminate” if:

the court makes written findings based on the

record that prospective relief remains

2 (...continued)

S. Ct. 2374 (1998); Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996),

cert. denied, 520 U.S. 1277 (1997); see also Taylor v. United States,

143 F.3d 1178 (9th Cir.), opinion withdrawn, 158 F.3d 1059 (9th Cir.

1998), superseded by 1999 U.S. App. LEXIS 13405 (9th Cir. June 18,

1999) (constitutional challenges not reached because held to be moot).

> Specifically, 18 U.S.C. § 3626(a)(1) provides in pertinent part:

Prospective 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.

-2-

necessary 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.

18 U.S.C. § 3626(b)(3) (emphasis added).

The Consent Decrees

The consent decrees that have governed respondents

in this case for the past twenty years (the “Consent

Decrees”) are a prime example of the sort of “wildly . . .

intrusive” judicial decree that this Court decried in Lewis v.

Casey, 518 U.S. 343, 116 S. Ct. at 2185. Although the

Consent Decrees were initially formulated to remedy

conditions of confinement that were alleged but never

proven to exist twenty-four years ago, in Benjamin v.

Malcolm and other complaints subsequently consolidated

with it in 1975. See Joint Appendix on Appeal (“JA”) 134-

92, 309-25; Pet. at 7a. However, they have since

“generated a judicially administered structure comprising

over ninety related court orders, and extending to more than

thirty discrete areas of prison administration” regulated in

minute detail.’ Pet. at 8a. In that regard, the Consent

* At the time of the district court’s and panel’s decisions, this language

was “current or ongoing.” The language was subsequently clarified to

read “current and ongoing.” Pub. L. No. 105-119, 111 Stat. 2440

(November 27, 1997) at § 123(a)(2) (emphasis added).

* For example, the Consent Decrees require that “[nJeither coffee, tea

nor milk shall be pre-sweetened”; that menus “respond to the ethnic,

(continued...)

a.

Decrees closely resemble the order that this Court in Lewis

termed “the ne plus ultra of what our opinions have

lamented as a court’s ‘in the name of the Constitution,

becom[ing] . . . enmeshed in the minutiae of prison

operations.’” (quoting Bell v. Wolfish, 441 U.S. 520, 562

(1979)).

In many respects, the Consent Decrees go well

beyond present constitutional norms; for example, they

prohibit double-celling, mandate extensive access to both

legal materials and legal coordinators, require the

distribution of free newspapers, and mandate free local

telephone calls. In certain instances, the prospective relief

goes to issues or subject matters that were not even raised

in the complaint. Thus petitioners’ - references to

respondents’ alleged “noncompliance” within the past ten

years relate nearly exclusively to noncompliance with the

Consent Decrees, not with constitutional standards. In

addition, any changes in these provisions, whether major or

minor, must receive federal judicial approval, generally

obtained only after voluminous discovery and protracted

negotiation with plaintiffs’ counsel.°

5 (...continued)

religious and social needs and tastes of the detainee population”; that

certain areas of the jails be cleaned with a solution consisting of 1/4 cup

Boraxo to a gallon of water; and that mops be stored in a particular

manner.

6 For example, within the past four and a half years, in the interest of

reducing inmate-on-inmate violence, the Department was required to

undergo protracted processes involving multiple negotiating sessions

with plaintiffs’ counsel, motion practice, and extensive discovery,

simply to prohibit “gang-identifying” jewelry (JA274) and, later, to

(continued...)

A

Furthermore, contrary not only to the PLRA but also

to this Court’s jurisprudence, see Freeman v. Pitts, 503

U.S. 467, 491 (1992); Board of Educ. v. Dowell, 498 U.S.

237, 247-50 (1991), the Consent Decrees are enforceable in

perpetuity. The Disengagement Plan approved in 1987,

while providing for the temporary suspension of

enforcement of individual provisions of the Consent

Decrees, does not establish a “method for ending this

litigation”, as petitioners assert it does. Pet. at 6. On the

contrary, even after the Department has been officially

certified as fully complying with every provision of the

Consent Decrees, it requires the case to be transferred to

and to remain indefinitely on the District Court’s inactive

docket, from which petitioners will be entitled to revive it

at any time on a showing of noncompliance with any term

of the Consent Decrees, whether or not such alleged

noncompliance would constitute a constitutional violation

(JA210-11, 217, 242, 278). Respondents will also remain

obliged in perpetuity to perform regular, formal audits

establishing their compliance with the more than thirty

issues encompassed by the Consent Decrees (JA242, JA278)

and to obtain court approval of any changes in Consent

Decree provisions (JA213, 242, 278).

Conditions in the Jails as of 1996

Petitioners state that defendants “still had not

complied” with the Consent Decrees when the proceedings

below commenced in 1996. Pet. at 6. They cite two reports

® (...continued)

modify the delivery of law library services to the 350 inmates housed

in the Central Punitive Segregation Unit. See Benjamin v. Jacobson,

923 F. Supp. 517 (S.D.N.Y. 1996).

-5-

by the court-appointed monitor, the Office of Compliance

Consultants (“OCC”), one in early 1996 gf which they

claim “OCC reported non-compliance in°a number of

significant areas,” and another in mud-1996 citing

“continuing noncompliance” involving primarily physical

plant issues. In most of these areas, however, OCC’s

complaints were insignificant.’ In fact, the two 1996

reports, read together with the Department's responses,

demonstrate a high degree of compliance with the Consent

Decrees (JA250-57, 279-81).

Under both the PLRA and Lewis v. Casey,

moreover, the proper standard is compliance not with the

Consent Decrees, but with the Constitution. Since 1996,

the District Court has found that only a single instance of

noncompliance violated constitutional requirements. See

Opinion of the United States District Court for the Southern

District of New York Concerning Jail Fire Safety (Nov. 12,

1998), Pet. at 247a. And, with regard to that one instance,

the Court held that respondents’ pre-existing plans would

adequately remedy fire safety conditions at the few

correctional facilities at issue, and imposed no remedy other

than the completion of those plans and the institution of a

new procedure for responding to internal reports of fire

safety deficiencies. Pet. at 255a-258a.

’ For example, petitioners’ reference to reported noncompliance with

food service requirements, Pet. at 6, concerns such matters as the

failure of inmate food service workers to wear hair nets, aprons or

gloves on isolated occasions (JA350-55).

6-

Proceedings Below

Respondents moved in the District Court on May 24,

1996 for an order vacating the Consent Decrees pursuant to

§ 3626(b)(2) of the PLRA. In opposition, petitioners

challenged the constitutionality of the statute but did not

seek an opportunity under § 3626(b)(3) to establish the

existence of current or ongoing unconstitutional conditions

warranting the continuation of injunctive relief. Benjamin

v. Jacobson, 935 F. Supp. 332, 336-37, 343 (S.D.N.Y.

1996) (Benjamin I), Pet. at 142a, 156a (JA246). On July

23, 1996, the District Court granted respondents’ motion

and vacated the Consent Decrees in their entirety, rejecting

each of petitioners’ constitutional arguments. Petitioners

moved to alter or amend the order, or in the alternative for

a stay of the order pending appeal; only at the end of their

reply brief on that motion, in a footnote, did petitioners

seek an opportunity to make a showing pursuant to

§ 3626(b)(3) at some unspecified future time that there then

existed at the jails any current or ongoing unconstitutional

conditions of confinement. The District Court denied the

motion in all respects except as to the application for a stay,

which it granted pending an application to the Court of

Appeals for a stay pending appeal (JA92-93).

The Court of Appeals granted a stay pending appeal

and, on August 26, 1997, affirmed the District Court order

in part and reversed in part. Benjamin v. Jacobson, 124

F.3d 162 (2d Cir. 1997) (Benjamin II), Pet. at 101a. The

panel rejected all of petitioners’ constitutional arguments,

but construed § 3626 as providing for judicial termination

of only further federal court enforcement of consent

decrees; the decrees were not themselves to be terminated,

remaining in effect as contracts enforceable in state court.

x %

Pet. at 134a. The panel continued in effect the stay of the

District Court order, pending review by this Court.

On December 27, 1997, the Court of Appeals

granted respondents’ application for rehearing en banc. See

Pet. at 99a. On March 23, 1999, the en banc Court

affirmed the District Court’s decision upholding the

constitutionality of § 3626 and held that the statute provided

for termination of the Consent Decrees themselves, not just

of further federal court enforcement of the decrees.

However, the Court of Appeals reversed the District

Court’s order insofar as it directed the vacatur of the

Consent Decrees rather than their termination, and it

remanded the case to the District Court for further

proceedings pursuant to § 3626(b)(3). Benjamin v.

Jacobson, 172 F.3d 144 (2d Cir. 1999) (en banc) (Benjamin

III), Pet. at la. The Petition For A Writ Of Certiorari (the

“Petition”) was filed on June 21, 1999.

REASONS FOR DENYING THE WRIT

I. THERE IS NO COMPELLING REASON

UNDER RULE 10 FOR REVIEW OF THE

DECISION BELOW

Review on a writ of certiorari is a matter of this

Court’s discretion, and is granted only “for compelling

reasons”. Rule 10, Rules of the Supreme Court of the

United States (“Rule 10”). Petitioners set forth no

compelling reason for review of the decision below, and

indeed fail even to mention this Court’s standards for

granting petitions for certiorari as set out in Rule 10.

One reason that this Court might grant review by

certiorari would be the existence of a conflict among the

Circuits on “an important matter.” Rule 10(a). In this

case, there is no conflict at all among the seven Circuits

that have decided any of the constitutional issues of

separation of powers, due process, and equal protection that

are presented in the Petition. See Benjamin III, supra;

Imprisoned Citizens Union, 169 F.3d 178; Hadix, 133 F.3d

940; Dougan, 129 F.3d 1424; Inmates of Suffolk County

Jail, 129 F.3d 649; Gavin, 122 F.3d 1081; Plyler, 100

F.3d 365; cof. Taylor, 1999 U.S. App. LEXIS 13405

(constitutional challenges not reached because held to be

moot).* These decisions are all consistent with one another

in their analysis of the constitutional and statutory issues

presented.

Moreover, as noted above and discussed in Point II

below, the en banc decision of the Second Circuit is fully

consistent with the prior decisions of this Court. See Rule

® Petitioners’ Supplemental Brief (July 12, 1999) does not alter this

conclusion. Petitioners go to great lengths, even engaging in abstruse

analysis of the composition of various courts and panels, to persuade

this Court of the existence of a conflict among the Circuits. Their

conclusion, however, relies upon reading the tea leaves of dictum and

dissent, and ignores the holding of the en banc Ninth Circuit Court of

Appeals, which expressly declined to reach the issue of the

constitutionality of § 3626(b). At best, petitioners have anticipated a

future determination that does not accord with the unanimity of the

Circuits that have decided these constitutional issues to date. If and

when such a determination is made, the parties to that future action may

then petition this Court for a writ of certiorari. For now, Jaylor --

whether or not it reveals a split within the Ninth Circuit -- provides no

basis for granting certiorari in this case.

-

10(c).? This Court has denied all five petitions for

certiorari on these issues in the last two years. Just as those

decisions did not warrant review by this Court, neither does

the decision of the Second Circuit below. In short, there is

no compelling reason for this Court to grant petitioners the

writ.

II. THE TERMINATION PROVISION OF THE

PLRA, 18 U.S.C. § 3626, HAS CONSISTENTLY

BEEN UPHELD AS CONSTITUTIONAL

A. Congress has the power to alter the

prospective effect of continuing judicial

decrees

Petitioners reiterate their argument that the

termination provision of the PLRA violates constitutional

separation of powers principles by requiring federal courts

to reopen final judgments. This Court has already declined,

on five separate occasions, to review precisely this issue,

see cases cited supra at 1 n.2, and petitioners present no

new argument that would warrant this Court’s review of the

decision below. Instead, misreading Plaut v. Spendthrift

Farms, 514 U.S. 211 (1995), citing vacated and overruled

decisions, petitioners rely on nearly universally rejected

legal arguments and on rhetorical speculation about the

putative calamitous consequences of allowing the

termination provision of the PLRA, 18 U.S.C. § 3626, to

stand.

® Rule 10(c) identifies as a reason that this Court might grant a petition

for certiorari that a United States court of appeals “has decided an

important federal question in a way that conflicts with relevant decisions

of this Court.”

-10-

In Plaut, this Court struck down a statute that

purported to reopen final determinations of monetary

damages and, reaffirming the validity of long-standing

precedent, expressly excepted from its holding cases that,

like this one, involve prospective injunctive relief.'° Plaut,

514 U.S. at 232 (citing Pennsylvania v. Wheeling and

Belmont Bridge Co., 59 U.S. (18 How.) 421, 15 L.Ed. 435

(1855) (Wheeling Bridge II)); see also Benjamin III, 172

F.3d at 160-61 (interpreting Plaut). The Plaut Court thus

reendorsed the Wheeling Bridge II principle that “legislation

does not violate the separation of powers by ‘alter[ing] the

prospective effect of injunctions.’” Benjamin III, 172 F.3d

at 161 (quoting Plaut, 514 U.S. at 232).

As the court below summarized the applicable law:

Under the separation of powers [principles of

Plaut and Wheeling Bridge II, Congress

lacks the authority to alter a finally rendered

judgment ordering the payment of money.

On the other hand, to the extent that a

court’s final judgment consists of an

injunction, Congress may require alteration

or termination of its future effect if the law

on which the injunction was predicated has

been changed.

‘0 Plaut was a damage action under the Securities Act that invalidated

legislation specifically intended to reopen cases previously dismissed

under the statute of limitations. 514 U.S. 211.

ais

Id."

Under Plaut and Wheeling Bridge II, the application

of the PLRA to an existing consent decree is consistent with

separation of powers principles, as each Circuit that has

addressed the issue has determined. See cases cited supra

at 1n.2. A judgment with continuing, prospective effects,

although a “final judgment” in some senses, remains subject

to change in response to new legislation. Indeed, this Court

recently held that just such a judgment -- a court-ordered

stipulation regarding attorneys’ fees in an analogous prison

conditions class action -- must be altered by operation of

§ 803(d)(3) of the PLRA, 42 U.S.C. § 1997e(d)(3), enacted

after the entry of the judgment, which limits the hourly rate

at which attorneys’ fees may be awarded in prison

conditions cases. See Martin v. Hadix, 67 U.S.L.W. 4500

(June 21, 1999).

. The PLRA is an example of the sort of prospective

legislation applicable to injunctive decrees that this Court

has upheld at least since the time of Wheeling Bridge II.

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

388 (1992) (change in statutory law warrants modification

of decrees with ongoing effects); see also Benjamin III, 172

F.3d at 161 (citing, inter alia, System Federation No. 91 v.

Wright, 364 U.S. 642, 646-47 (1961); United States v. Swift

'' Petitioners’ suggestion that there is no principled distinction between

unpaid monetary damages and injunctive relief, Pet. at 17 n.17, is

disingenuous. In the former circumstance, the right at issue, together

with the remedy, have both been finally determined and adjudicated; all

that remains for the future is the execution of the already-determined

remedy. In the latter case, however, the contours of the remedy itself

are not finally determined.

-12-

& Co., 286 U.S. 106, 114-15 (1932); Wheeling Bridge II,

59 U.S. (18 How.) at 431-32). Such legislation is

applicable also when the injunctive relief is entered on

consent. See Swift, 286 U.S. at 114; Agostini v. Felton,

521 U.S. 203, _, 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.”)

(quoted in Benjamin III, 172 F.3d at 162). Contrary to

petitioners’ assertion, Pet. at 14-15 n.14, Swift and Agostini

are not irrelevant; rather, they reaffirm the distinction,

consistently upheld by this Court, between

restraints that give protection to rights fully

accrued upon facts so nearly permanent as to

be substantially impervious to change, and

those that involve the supervision of

changing conduct or conditions and are thus

provisional and tentative. . . .

Rufo, 502 U.S. at 379-80, quoting Swift, 286 U.S. at 114;

see also Western Union Telegraph Co. v. International

Brotherhood of Elec. Workers, 133 F.2d 955, 957 (7th Cir.

1943) (“though a decree may be final as it relates to an

appeal and all matters included or embodies [sic] in such a

step, yet, where the proceedings are of a continuing nature,

it is not final”).

Plaut protects the finality not of all judgments but

only of judgments at law that represent “the last word of

the judicial department with regard to a particular case or

controversy.” Plaut, 514 U.S. at 227. It is evident from

the number of modifications made over the last two decades

to the Consent Decrees in this case that such an executory

decree with prospective effect is hardly the court’s “last

Es

word”, even after the decree has become final for purposes

of appeal. In Plaut, the Supreme Court reaffirmed that

legislation that alters the law applicable to an executory

consent decree warrants revisiting that decree if the

legislation is enacted while the consent decree is still subject

to enforcement. /d., 514 U.S. at 232.

Petitioners cannot cite any authority to dispute the

constitutional validity of the PLRA, and their challenge

therefore relies on a combination of vacated and overruled

decisions, fallacious reasoning, and their own speculation

about the ramifications of upholding the statute. See, e.g.,

Pet. at 12-13 (citing Taylor v. United States, 143 F.3d 1178

(9th Cir.), opinion withdrawn, 158 F.3d 1059 (9th Cir.

1998), superseded by 1999 U.S. App. LEXIS 13405 (9th

Cir. June 18, 1999); Denike v. Fauver, 3 F. Supp.2d 540

(D.N.J. 1998), overruled by Imprisoned Citizens Union v.

Shapp, 169 F.3d 178 (3d Cir.)).

For example, contrary to petitioners’ assertions, the

PLRA does not require a court to set aside anything, in

contrast to the Securities Act amendments struck down in

Plaut, which required dismissals to be reopened. Cf. Pet.

at 9, 15. Rather, Section 3626(b)(3) provides that

prospective relief shall not terminate if the court “makes

2 Petitioners’ claim that the PLRA requires judicial revision of

injunctions, like the colonial legislatures that mandated new trials in

completed litigation, Pet. at 9, 15, not only misstates the effect of the

PLRA but also appears to be an attempt to revive an argument that

petitioners abandoned before the en banc hearing in Benjamin III,

namely, the assertion that the PLRA prescribes a rule of decision in

particular cases in violation of the rule of United States v. Klein, 80

U.S. (13 Wall.) 128 (1872). See Benjamin III, 172 F.3d at 159. This

assertion should be disregarded.

-14-

written findings based on the record that prospective relief

remains necessary to correct a current or ongoing violation

of the Federal right” and if the court makes the other

findings set forth in the statute. 18 U.S.C. § 3626.

Indeed, the termination provision of the PLRA is not even

triggered unless a defendant affirmatively moves to

terminate a decree, which would be counterproductive

unless the defendant believed in good faith that conditions

in its correctional facility were constitutional.

Nor does the PLRA create its own raison d’étre

merely by altering the law concerning the “reopening of

judgments”, as petitioners suggest. Pet. at 14. The PLRA

is not “a law overturning injunctions”, id.; rather, by its

passage Congress changed the law of remedies by imposing

the requirement of a finding of a constitutional violation in

order to warrant prospective injunctive relief in prison

litigation. Thus, defendants in prison litigation are no

longer limited to the relief afforded by Federal Rule of

Civil Procedure 60(b)(5) to seek modification of injunctive

decrees. When Congress established new standards for the

termination of injunctive relief in prison litigation under

§ 3626, it facilitated the appropriate revision or termination

of relief in conformity with Board of Education v. Dowell,

498 U.S. at 247-50, and Freeman v. Pitts, 503 U.S. at 491.

Petitioners’ reliance on Rule 60(b)(5) and on Dowell and

Freeman, see Pet. at 11-12, is therefore inapposite.

Finally, whether or not “scores of bills” were

introduced before the passage of the PLRA to nullify

“politically unpopular federal judicial action” in various

areas, Pet. at 18, the fact remains that no such bill was

enacted prior to the PLRA, and none has been enacted since

the PLRA was passed over three years ago, despite

«14.

petitioners’ vague unfounded assertion that “one can expect

further efforts to curtail the judiciary’s actions on behalf of

other unpopular constituencies and causes.” Jd. Indeed,

one of the two academic sources that petitioners cite to

support their assertion of imminent, legislatively induced

chaos in fact affirms Congress’s authority to adjust available

remedies, as long as it does not thereby prevent vindication

of a constitutional right. See Eisenberg, Congressional

Authority to Restrict Lower Federal Court Jurisdiction, 83

Yale L.J. 498, 527, 531 (1974); 18 U.S.C. § 3626(b)(3).”

As the PLRA expressly retains remedies for constitutional

violations, it meets this standard.

In summary, as the court below noted,

In the PLRA, Congress has neither defined

nor altered the federal rights that may be

vindicated in prisoner litigation. Nor has it

forbidden the court, if it finds a violation of

federal right, to order or enforce such relief

as 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... .

' “Congress . . . may enact any jurisdictional statute that does not

prevent vindication of a constitutional right "and, “[aJs long as the

federal rights involved in a case can be adequately vindicated in some

manner, Congress may adjust the available remedies with impunity.”

Eisenberg, supra.

-16-

era

RE RR

The Act’s elimination of the parties’ ability

to obtain judicial enforcement of the forward-

looking provisions of a judgment obtained

without such adjudication [of the merits of

plaintiffs’ claims or of the appropriate scope

of the remedy] 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 “litigants’

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.

Benjamin III, 172 F.3d at 163-64. The PLRA does not

violate Article III principles of separation of powers.

B. Section 3626(b) Is Consistent With

Petitioners’ Due Process And Equal

Protection Rights

“Plaintiffs’ remaining constitutional contentions

[regarding claimed due process and equal protection

violations] do not require extended discussion.” Benjamin

III, 172 F.3d at 164.

1. Due Process

It is established that, although a consent decree

borrows elements from both judgment and contract, “the

provisions of a consent decree that order prospective relief

remain subject to modification or alteration for changes in

«it.

law or circumstances.” Benjamin III, 172 F.3d at 164. As

this Court noted in System Federation, principles of contract

do not constrain a court’s consideration of the modification

of a consent decree:

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 consent 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, quoted in Benjamin III, 172 F.3d at 164

(emphasis added). As consent decrees do not create vested

rights, the PLRA does not deprive plaintiffs of any property

rights. This principle has been acknowledged by each

Circuit that has considered the issue. See cases cited at 1

n.2.

Plaintiffs rely on inapposite precedent. Tonya K. v.

Board of Educ., 847 F.2d 1243 (7th Cir. 1988), for

example, cited in Pet. at 21-22, is limited by its facts to

money judgments -- in that case, relating to attorneys’ fees -

- and does not apply to injunctive judgments with

prospective application. Such injunctive judgments, like the

Consent Decrees, do not have the finality required to

establish vested rights any more than they are final for

separation of powers purposes. See Benjamin I, 935 F.

Supp. at 356 (“The principle that parties have vested rights

in a court judgment is essentially the due process analog of

-18-

the separation-of-powers doctrine discussed in Plaut”)

(citing, inter alia, Tonya K., 847 F.2d at 1247).

Petitioners also miscite Newsweek, Inc. v. Florida

Dep’t of Revenue, 522 U.S. 442 (1998) (per curiam), cited

in Pet. at 23, in which this Court held that courts may not

deprive litigants of an apparently available statutory

remedy, in that case a post-payment tax refund. The PLRA

does not deprive plaintiffs of a remedy; rather, it requires

them to show a violation of a federal right that warrants a

remedy. This hardly constitutes deprivation of property

without due process. And Logan v. Zimmerman Brush Co.,

455 U.S. 422 (1982), cited in Pet. at 22-23, is a procedural

due process case that has nothing to do with vested rights

but instead concerns state-created procedural entitlements.

Unlike the implementation of the state claims handling

procedure struck down in Logan, the PLRA is not arbitrary;

it affects only prospective relief and not finally determined

rights; and, as previously noted, it mandates a procedure

for retaining remedies for constitutional violations.

-19-

2. Equal Protection

As petitioners concede, they are not members of a

protected class. As they also apparently concede, the

Statute does not burden a fundamental right,’ and strict

scrutiny therefore is not the appropriate level of review.

Pet. at 26. Nor do petitioners appear to argue that

§ 3626(b) fails the traditional rational basis test. See Heller

v. Doe, 509 U.S. 312, 320 (1993) (legislative classification

“must be upheld if there is any reasonably conceivable state

of facts that could provide a rational basis for the

Classification”). Rather, petitioners seek to invoke a

“heightened” level of rational basis review, based on

Congress’ claimed “attempt[] to burden a disfavored --

though not suspect -- class’s ability to employ the remedial

mechanisms of society to protect itself and its constitutional

rights.” Pet. at 26 (emphasis added). Petitioners rely on

Romer v. Evans, 517 U.S. 620 (1996), as support for the

application of this “heightened” level of scrutiny; on the

contrary, Romer applied traditional minimal scrutiny. Jd.

at 631-32. This purported analogy to Romer was expressly

rejected by the Panel and District Court below, Benjamin II,

124 F.3d at 175, Pet. at 127a; Benjamin I, 935 F. Supp. at

353-54, Pet. at 174a-176a, as well as by other Courts of

Appeal. See Inmates of Suffolk County Jail, 129 F.3d at

660-61; Gavin, 122 F.3d at 1090.

'* Petitioners do argue that “prisoners in this society” are unable to

vote. Pet. at 26. They do not claim that they themselves are unable to

vote, and there is nothing in the record below as to the right to vote of

either petitioners - who are pretrial detainees, not convicted prisoners -

- or the class of “prisoners in this society”, which includes convicted

felons whose right to vote may be affected as a consequence of their

convictions. The statement therefore should be disregarded.

-20-

Petitioners do not argue that the statute actually

burdens their ability to obtain a remedy for any claimed

violations of their constitutional rights. As the courts below

and in the other Circuits have all concluded, § 3626(b)

imposes no burden at all on prisoners’ ability to obtain and

enforce an appropriate remedy for the violation of their

constitutional rights: “Nothing in the Act alters plaintiffs’

federal rights or prevents the court from granting such relief

as is necessary to remedy violations of those rights.”

Benjamin III at 164-65; see also cases cited at 1 n.2."°

Rather, petitioners argue only that Congress should have

legislated more broadly and had no rational basis for

singling out prisoners’ conditions litigation. Pet. at 26-27.

However, as the Court below concluded, “(t]he

terms and legislative history of the Act make it clear that,

in the unique context of litigation challenging prison

conditions, ... Congress adopted the remedial and

termination provisions in order to promote, inter alia,

principles of federalism and judicial restraint.” Benjamin

III (citing Thornburgh v. Abbott, 490 U.S. 401, 407-08

(1989); Turner v. Safley, 482 U.S. 78, 89 (1987))

(emphasis added). The Court found “unquestionably .. .

legitimate” Congress’s 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.” Benjamin III, 172 F.3d at 165; accord,

Imprisoned Citizens Union, 169 F.3d at 189; Inmates of

'S. The Equal Protection challenge was not before the Court of Appeals

for the Sixth Circuit; however, that Court noted the decisions of the

First, Second, Eighth, and Eleventh Circuits and stated that, were that

challenge to the PLRA before it, “we would similarly reject it.” Hadix,

133 F.3d at 943 n.3.

-21-

Suffolk County Jail, 129 F.3d at 660; Dougan, 129 F.3d at

1427; Gavin, 122 F.3d at 1090; Plyler, 100 F.3d at 374.

Petitioners have submitted no authority to the

contrary, and have suggested no reason to overturn the

decision below on this ground.

CONCLUSION

THE PETITION FOR A WRIT OF

CERTIORARI SHOULD BE DENIED

Respectfully submitted,

MICHAEL D. HESS

Corporation Counsel

Attorney for Respondents

LEONARD J. KOERNER*

LORNA B. GOODMAN

JUNE R. BUCH

FLORENCE A. HUTNER

of Counsel

* Counsel of Record

2).