# Opposition Brief — Benjamin v. Kerik

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 824

## Text

| 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.

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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.

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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

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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.

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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.

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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.

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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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0470%3A3. Public record. Not legal advice.