Opposition Brief — Inmates of the Suffolk County Jail v. Rouse

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IN THE apR 6 1998

SUPREME COURT OF THE UNITED STATES

“@FBICE OF THE CLERK

October Term, 1997 rT

NO. 97-1278

INMATES OF THE SUFFOLK COUNTY JAIL, et al.,

Petitioners,

vs.

RICHARD J. ROUSE, SHERIFF OF SUFFOLK COUNTY, et

al.

Respondents.

On Petition for a Wnt of Certiorari to the

United States Court of Appeals

For the First Circuit

RESPONDENT’S BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

John D. Hanify

Counsel of Record

Robyn J. Bartlett

Owen P. Kane

HANIFY & KING

Professional Corporation

One Federal Street

Boston, MA 02110

(617) 423-0400

Counsel for Respondent

cS ca ati

TABLE OF CONTENTS

PAGE

CRRA Sa UEe FEO BED ce conccscienccscncnsnsesensnaces ili

FA FARs RE bosiecsnccccsiancsscnvncssacniens iv

COUNTERSTATEMENT OF THE CASE................ 1

ee NHI iéncteusevinsnendneinntannconnine 2

The Prison Litigation Reform Act .................. 5

TD PURORTIIES BOIOW ooo 0ksciccscssscncssccceccssnes 7

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

I. The Decision of the First Circuit Court of

Appeals is not in Conflict

with Decisions in other Circuits. ................. 8

II. The PLRA Presents No Constitutional

Difficulties under

Separation of Powers or Due

SE III, Sencdercsstacsessakeninnvassseves 9

A. The PLRA's Provisions for Termination

of Relief Do Not

Violate the Principle of Separation of

AER ARP REESE UTNE BA MTS EP OO 9

1. A Consent Decree is Not

PE FI fo ciccctsciticesesecsais 10

2. The PLRA's Requirement that the

Court Issue Findings

Does Not Strip the Courts of their

Inherent Power and

Duty to Enforce Effective Remedies

in Constitutional Cases. ................. 14

3. The Termination of Relief Provision

Does Not Prescribe a Rule of

IO sco ainissackninnnnlectaatiiianemsieeeasl 16

B. The Application of the PLRA's

Termination of Relief

Provision Does Not Implicate the Due

Process Clause

By Impairing Any Existing Contract. .... 18

Ca iccciek sctieinninccessqnecteisimeinempmanaie 20

Questions Presented

Whether this Court should decline to review the issues in this

case as there appears to be no disagreement among the circuits.

Whether Section 3626(b)(2) of the Prison Litigation Reform

Act presents any constitutional difficulties under separation of

powers or due process principles.

ill

- TABLE OF AUTHORITIES

CASES PAGE

Benjamin v. Jacobson,

935 F. Supp. 332 (S.D.N.Y. 1996) ............. 8,9, 14, 17

Chicago & Southern Air Lines, Inc. v.

Waterman S.S. Corp.,

Re TAs Ee RE as dcwanie hensaktcncdasdpsoaediennink 11

Class v. Norton,

ane ae Be Ge GE 0 re xddcicdkccbankcdckcinin 13

Daylo v. Administrator of Veterans' Affairs,

ek Ee ce as SE vc did cn scien weadidiesicsdcacce 13

Dougan v. Singletary,

Ree ee Be OE Oe Ms RF Bk bene saccnesdvndaiesencsieks 8

Gavin v. Branstad,

Rae ee Ae I RED iicdvaccancinacdeawauwicieen: 8

Hadix v. Johnson,

947 F. Supp. 1100 (E.D. Mich. 1996)............c.cecesss. 8

Hanna v. Plumer,

DE BE EE uihiditcnncdehhccecicdasw ccbicibliesonns tous 10

Inmates of Suffolk County Jail v. Eisenstadt,

SOS FDU Gre GE). BER TG on con scvcisccccnsascencss 2

Inmates of Suffolk County Jail v. Rufo,

844 F. Supp. 31 (D. Mass. 1994) ............ccccccccccccees 5

‘is

James v. Lash,

965 F. Supp. 1190

UNC i 14, 18, 20

Jensen v. County of Lake,

Te Be SE CRs MN, TOE D ci cenicicinesdiccvexesecs 14

Gilbertson,

Pe GE IE cid dice cigudagduikbanednecuksdoccenceken 11

Lauf v. E.G. Shinner & Co.,

Pe els Seni cacaccucsaek caabobsieieeucaassasecdson 10

Layne & Bowler Corp. v. Western Well Works,

Se AN snk bins anacaveksannanysacoieaivastiaes 9

Lewis v. Casey,

Ren es ee OF CI kiccshnta nceurobobnduianieeantondsen 15

McLendon v. Continental Can Co.,

Se ee OEE a Civ hexcssudebedéaccivaravecscsdeus 15

Milliken v. Bradley,

a NE MDT F Bea isvcdcvkinsnsdcccssdacascavsusenawnccie 15

Topeka & Santa Fe R.R. Co.,

Pe EE BEE i nbn cn bes heavesdceassuscncecdesoneses 19, 20

NLRB Pittsburgh S.S. Co.,

SO i 8

Pennsylvania v. Wheeling & Belmont Bridge Co.,

FP hs CE EMF GEE CEI) venenccccccccaccenencs S 22. 13

Pension Benefit Guaranty Corp. v. R. A. Gray Co.,

MRE BP FOE CU IID ovina cate ccc cancevebries eke ee 19

Plaut v. Spendthrift,

Rt ._- | REDS CORI eR ees 9, 10, 12

Plyler v. Moore,

pee cae ee ee 8, 14, 18

Robertson v. Seattle Audubon Soc'y,

I UT UIT hdd vccideasincbhcecikoeseeihsctues es 17

Rufo v. Inmates of the Suffolk County Jail,

PE OT CRM sicko kivi'c saitckssdicic oaslcunsiabn 12, 43

Ruiz v. Estelle,

ee Ws BEE Ce CD, BOUND once oveccan cs. ecnkc cs 15

Seminole Tribe of Florida v. Florida,

US Ee Ae BSC ase ee aa ne mC 16

Swann v. Charlotte-Mecklenburg Board of Education,

ee bee Oe eo 5 | SUREMENTS 7D tare ae Oa RE 15

System Federation No. 91, Railway Employees'

Department,

AFL-CIO v. Wright, 364 U.S. 642 (1961)................ 13

Toussaint v. McCarthy,

Fn Fe WE, FOGG) ois nccccsnicccncesecsacdodia 15

United States v. Klein,

Oe eats Ue I RTE 9,17

Vii

United States v. Swift & Co.,

Be Fh ie SE ED vi wid nddinecsckiiedibmecsceriessasaiunk 13

CONSTITUTIONAL PROVISIONS

Fae I Ms Bc eg MO ci Sea Cesivastietnaicndeaesouen 10

Sree SR. ORE TER, Gk BAe sch acs in peintescrcdspsacivessanns 10

BOR FOI CORI soos ceiinin secs seckasdacsadsiscctanntt passim

STATUTES

See Sean Oe EOE cabadeucacaidisdesincapaaincinnatiens 6, passim

OTHER AUTHORITIES

H.R. Rep. No. 21, 104th Cong., Ist Sess. 7 (1995) ..... 6

Department of Justice Appropriations Act,

Ss Bs Tak BO AOR ED, Nekannccavcicvancidaehevierkine 16

Vill

COUNTERSTATEMENT OF THE CASE

The Consent Decree at the center of the present dispute has

had a long and contentious history. Entered into by the parties to

this action in 1979, the Consent Decree remained in effect until

terminated by Order of the First Circuit Court of Appeals on

November 7, 1997, pursuant to the Prison Litigation Reform Act of

1996 (the “PLRA”). The decree remained in effect despite

numerous changes in conditions including, most notably, the

construction of a new, state-of-the-art Suffolk County Jail. The

long history of this case illustrates the condition which Congress

sought to remedy by enacting the PLRA.

This action was initiated in the United States District Court

for the District of Massachusetts in 1971, on behalf of the inmates

of the Suffolk County Jail. At that time, the Suffolk County Jail

was located on Charles Street in the City of Boston and was known

as the "Charles Street Jail." By 1971, the Charles Street Jail was an

out-of-date, unfit facility. On June 20, 1973, the District Court

determined that the then existing conditions at the Charles Street

Jail were unconstitutional and permanently enjoined the Sheriff

from, inter alia, “housing at the Charles Street Jail after November

30, 1973, in a cell with another inmate, any inmate who is awaiting

trial." Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp.

676 (D. Mass. 1973).

The Consent Decree

In 1979, in order to comply with the Court's June 20, 1973

Order, the parties entered into a consent decree (the "Consent

Decree") providing for the construction of a new high-rise jail

adjacent to the Charles Street Jail.

The parties to the Consent Decree explicitly recognized the

prospect of changing conditions and the continuing need to adapt to

conform to current circumstances. The site for the jail was moved

from Charles Street to Nashua Street and changed from a high-rise

to a modern and spacious seven-story structure. The Nashua Street

Jail was completed in May, 1990, at a cost of $54 million. It is one

of the most modern penal facilities in the country, providing more

amenities to inmates than most other state and county facilities.

The Nashua Street Jail includes a variety of functionally distinct

spaces to meet the special needs of inmates. There are 453 cells

and each cell is approximately 70 square feet with 40 square feet of

available floor space. This amount of floor space exceeds the

et aa ee Nm tal et Na i a A or

Ant Mie en OG ag

wren. na - la

a ee he el

_— NS eee eee

American Correctional Association's standard of 35 square feet.

Each housing unit contains two tiers of sixteen to nineteen cells, a

large “day room" where meals are served and detainees may spend

their out-of-cell time, a separate "quiet" or "multi-purpose" room,

counseling, noncontact visiting and attorney-client rooms, a washer

and dryer for personal laundry, a kitchenette for serving meals

prepared in the central kitchen, two televisions, exercise

equipment, telephones for use by detainees and access to an

outdoor recreation deck voor with the adjoining housing unit on

the same floor.

The Nashua Street Jail also offers a contact visiting area,

chapel, general library, classroom space for use by inmates,

access to legal materials and a large central gymnasium complete

with exercise equipment. Because of the modern, expanded

facilities of the new Nashua Street Jail, visiting hours are

permitted seven days a week, including holidays. All areas of the

jail are climate-controlled.

From the very first day the new Nashua Street Jail was

opened, in order to comply with the single bunking provision of

the Consent Decree respecting the old Charles Street Jail, the

Sheriff was required to hold Suffolk County pretrial detainees in

correctional facilities outside of Suffolk County. Every night,

dozens of inmates were transferred to other facilities where they

were double-bunked in conditions vastly inferior to those at the

new Nashua Street Jail. In fact, these other facilities often

exceeded their design capacity by as much as 200%.

A result of this federal court intervention, older and already

overcrowded facilities in seven other counties were required to

house a disproportionately higher number of inmates than the new

Nashua Street Jail. Moreover, the Sheriff was forced to divert

scarce financial and human resources to the transportation of

detainees to facilities outside of Suffolk County each night.

On August 9, 1993, the Sheriff filed a Supplemental

Memorandum in which he proposed double bunking in 161 cells in

the new facility. Without subsidiary findings, the District Court

found that the Sheriff's proposal was not "an appropriately tailored

modification,” but found, also without explanation, that a

modification permitting double-bunking in 100 cells would not

impair the integrity of the Consent Decree. In so doing, the District

Court acknowledged that "[a] federal court . . . should be loathe to

i ee es Oe ea

0 eek

beet ARs ech En Rien ae tee HM

become entangled in the intricacies of administrative and

institutional decisions.” Inmates of Suffolk n il v. Rufo,

844 F. Supp. 31, 37 (D. Mass. 1994).

On June 14, 1994, the District Court entered a Final Order

which allowed a modification of the Consent Decree to permit 100

cells to be double-bunked. The Court explicitly found that such a

modification "would be adequately tailored to fit the changed

circumstances without reducing the consent decree to or below the

constitutional floor." The Court did not identify the “constitutional

floor" or explain the logic of any limitation of the number of

double-bunked cells in the new facility.

The Nashua Street Jail has received certification from the

Massachusetts State Building Code Appeals Board to hold 653

inmates. However, as a result of the June 14, 1994 District Court's

Order, the Jail's capacity was reduced to 553 inmates.

The Prison Litigation Reform Act

On April 26, 1996, President Clinton signed into law the

Prison Litigation Reform Act (the "PLRA"). The PLRA is

intended to "provid{e] reasonable limits on the remedies available

in" lawsuits concerning prison conditions. See H.R. Rep. No. 21,

104th Cong., Ist Sess. 7 (1995).

Section 802 of the Act establishes standards for the entry

and termination of prospective relief in civil actions concerning

conditions in prisons, jails, and juvenile detention facilities. With

regard to the entry of prospective relief, Section 3626(a)(1)(A)

provides:

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 petitioners. 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 mght. 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.

Section 3626(b)(2) provides for the immediate termination of any

prospective relief that was entered without the findings required by

Section 3626(a)(1):

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

ee Oe eee

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

nght. |

A court may decline to terminate prospective relief only if

it has found that "prospective relief remains necessary to correct a

current or ongoing violation of the Federal right." 18 U.S.C. §

3626(b)(3). No such finding has ever been made in this case.

The Proceedings Below

Pursuant to Section 3626(b)(2) of the PLRA, the Sheriff

moved the District Court to terminate all prospective relief on the

ground that the District Court had theretofore never made the

required findings to sustain such relief with regard to the new

Nashua Street Jail. In ruling on the Sheriff's motion, the Court

acknowledged that it had "not made and does not now make the

findings required under § 3626(a)(1) or (b)(2) to keep in force

prospective relief, as petitioners have urged."

The District Court terminated the prospective relief

imposed by the Consent Decree insofar as it may be characterized

as a Court Order. Because the Court purported to preserve elements

of the Consent Decree, at least for "contract" purposes, the Court

determined that it did not have to address the constitutionality of

the PLRA's termination provision. All parties appealed the

decision.

The First Circuit modified the judgment to require that the

decree itself, and not simply the prospective relief imposed by the

decree, be terminated. The Court held that the PLRA was

constitutional in all respects and remanded the case to the District

Court for entry of the modified judgment.

REASONS FOR DENYING THE WRIT

I. The Decision Of The First Circuit Court Of Appeals Is

Not In Conflict With Decisions In Other Circuits.

The Petitioners acknowledge that the constitutionality of

the PLRA has been upheld by no fewer than six separate Circuit

Courts.’ It can hardly be said, therefore, that the First Circuit’s

decision below creates a “real and embarrassing conflict of opinion

and authority between the circuit courts of appeal” justifying

review on certioran. NLRB Pittsburgh S.S. Co., 340 U.S. 498, 502

' See Hadix v. Johnson, Nos. 96-2463, 96-2582, 1998 U.S. App. Lexis 387 (6* Cir.

1998), Dougan v. Singletary, 129 F.3d 1424 (11" Cir. 1997), Benjamin v, Jacobson,

124 F.3d 162 (2d Cir. 1997), reh’g en banc granted, 124 F.3d 162 (2d Cir. 1997},

Gavin v. Branstad, 122 F.3d 1081 (8* Cir. 1997); Plyler v. Moore, 100 F.3d 365 (4*

Cir. 1996) cert denied, _U.S.__, 117 S.Ct.2460 (1997).

(1951)(quoting Layne & Bowler Corp. v. Western Well Works,

261 U.S. 387, 393 (1923)).”

The issues of federal law involved in this case have been

settled by historic decisions of this Court confirmed by more recent

precedent. See, e.g. Pennsylvania v. Wheeling & Belmont Bndge

Co., 59 U.S. (18 How.) 421 (1856); Plaut v. Spendthrift Farms, 115

S.Ct. 1147 (1995). The First Circuit’s decision in this case simply

applies the law as expressed in those cases.

Il. The PLRA Presents No Constitutional Difficulties under

Separation of Powers or Due Process Principles.

A. The PLRA's Provisions for Termination Do Not

Violate the Principle of Separation of Powers.

The separation of powers doctrine prohibits Congress from

itself assuming the role assigned by the Constitution to the Judicial

Branch. Congress may not decide cases. United States v. Klein,

80 U.S. (13 Wall.) 128 (1871). It is the role of Congress, however,

to create and structure the inferior courts, and to establish the

confines of the jurisdiction of those courts. See U.S. Const. art. I, §

2 The Second Circuit has found the PLRA to be constitutional but originally

concluded that the residual of any consent decree may be enforced in state court.

Benjamin v. Jacobson, 124 F.3d 162,180 (2d Cir. 1997). The Circuit Court has

recently ordered en banc reconsideration of the matter.

8, cl. 9; art. III, §§ 1-2; see also Lauf v. E.G. Shinner & Co., 303

U.S. 323, 330 (1938) ("[t}here can be no question of the power of

Congress thus to define and limit the jurisdiction of the inferior

courts of the United States"). Congress not only establishes the

substantive federal law to be applied by the courts, it has the

constitutional authority to establish the procedural and evidentiary

rules which apply in proceedings before the federal courts. "[T]he

constitutional provision for a federal court system (augmented by

the Necessary and Proper Clause) carries with it congressional

power to make rules governing the practice and pleading in those

courts." Hanna v. Plumer, 380 U.S. 460, 472 (1965).

1. A Consent Decree is Not a Final Judgment.

The petitioners argue that the First Circuit erred in not

holding that Section 3626(b)(2) of the PLRA is unconstitutional

because it mandates the reopening of a "final judgment" by

requiring district courts to terminate consent decrees that were

approved before the passage of the PLRA. In support, the

petitioners rely on Plaut v. Spendthnft, 115 S. Ct. 1447 (1995).

In Plaut, this Court considered legislation that retroactively

allowed petitioners in certain specific securities fraud suits to

revive actions that had been previously dismissed as a result of a

statute of limitations rule first announced and applied by the

Supreme Court in Lampf, Pleva, Lipkind, Prupis & Petigrow v.

iIbertson, 501 U.S. 350 (1991). The Court in Plaut held that this

legislation represented an attempt by Congress to "set aside the

final judgment of an Article III court by retroactive legislation,"

115 S. Ct, at 1458, and thus violated separation of powers

principles. The Court explained that "[j]udgments within the

powers vested in courts by the Judiciary Article of the Constitution

may not lawfully be revised, overturned or refused faith and credit

by another Department of Government." Id. at 1456, quoting

Chicago & Southern Air Lines, Inc, v. Waterman S.S. Corp., 333

U.S. 103, 113 (1948).

Sections 3626(b)(2) and (b)(3) of the PLRA do not violate

the principle announced in Plaut. Plaut involved lawsuits for

monetary damages. In that context, the Court stated that “[hJaving

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 something

other than what the courts said it was." Plaut, 115 S. Ct. at 1457. ;

Indeed, the Court in Plaut explained that its ruling was

distinguishable frora decisions approving statutes “that altered the

prospective effect of injunctions entered by Article III courts."’ Id. |

at 1459 (citing Pennsylvania v. Wheeling & Belmont Bridge Co.,

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

The basis for this distinction rests in the longstanding

principles applicable to injunctive relief. Injunctions, in contrast to

——— oe ee ee ee *

monetary judgments, have always been susceptible to modification

as a result of changes in law or fact. Pennsylvania v. Wheeling &

Belmont Bridge Co., 59 U.S. (18 How.) 421 (1855); Rufo v.

Inmates of the Suffolk County Jail, 502 U.S. 367, 384 (1992). In

Wheeling & Belmont, this Court explained the dichotomy between

the finality of judgments for monetary damages and judgments

providing prospective relief. The Court explained:

[I}f 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 . . . . But that part of

>The Court noted that “[a}part from the statute we review today, we know of no

instance in which Congress has attempted to set aside the final judgment of an

Article III court by retroactive legislation.” Plaut v. Spendthrift Farm, Inc., 115 S.

Ct. at 1458.

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 reconstruction or continuance. . . . If... this

right has been modified by the competent authority, so

that the bridge is no longer an unlawful obstruction, it is

quite plain that the decree of the court cannot be

enforced.

Pennsylvania vy. Wheeling & Belmont Bridge Co., 59 US. (18

How.) 421,431-432. See also United States v. Swift & Co., 286

U.S. 106 (1932); System Federation No. 91, Railway Employees’

Department, AFL-CIO v. Wright, 364 U.S. 642 (1961) (Court held

that statutory amendment permitting union shop agreements

required modification of a prior consent decree); Plaut, 115 S.Ct. at

1459 (legislation may affect "the prospective effects of injunctions

entered by Article III courts"), Rufo v. Inmates of the Suffolk

County Jail, 502 U.S. 367, 393 (1992) (holding consent decree may

be modified based on significant changes in facts or law); Class v.

Norton, 507 F.2d 1058, 1061 (2d Cir. 1974) (holding that Wheeling

created a "doctrine of judicial deference to legislative revision of a

statute upon which a prospective court order is based"); Daylo v.

Administrator of Veterans’ Affairs, 501 F.2d 811, 817 (D.C. Cir.

1974) (judgment's prospective effects are not final for separation of

power purposes).

Indeed, the several courts addressing this issue have

similarly held that the PLRA does not offend separation of powers

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

Lash, 965 F. Supp. 1190, (N.D. Ind., May 15, 1997); Jensen _v.

County of Lake, 958 F. Supp. 397 (N.D. Ind. 1997); Benjamin v.

Jacobson, 935 F. Supp. 332 (S.D.N-Y. 1996).

a The PLRA's Requirement that the Court Issue

Findings Does Not Deprive the Courts of their Inherent

Power and Duty to Enforce Effective Remedies in

Constitutional Cases.

The petitioners contend that the PLRA violates the

separation of powers doctrine by depriving the federal courts of

their essential powers to enter equitable relief to remedy

constitutional violations in a prison setting. The PLRA does no

such thing. The PLRA merely requires that any prospective relief

be accompanied by particularized findings that such relief is

necessary to remedy an existing violation of a federal constitutional

right, thus ensuring that continuing orders comport with current

remedial! standards as articulated by the courts. Milliken v. Bradley,

433 U.S. 267, 280 (1977) (The "remedy must therefore be related

to 'the condition alleged to offend the constitution.""); Swann y.

Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16 (1971)

—T ee ee ee

("[T]he nature of the violation determines the scope of the

remedy"); see also McLendon v. Continental Can Co., 908 F.2d

1171, 1182 (3d Cir. 1990) ("In granting injunctive relief, the court's

remedy should be no broader than necessary to provide full relief

to the aggrieved plaintiff"); Ruiz v. Estelle, 679 F.2d 1115, 1145

(Sth Cir. 1982) ("Reparative injunctive relief must be targeted at

elimination of the unconstitutional conditions . . . Therefore, a

court can order only relief sufficient to correct the violation

found"), vac'd in part on other grounds, 688 F.2d 266 (1982), cert.

denied., 460 U.S. 1042 (1983); Toussaint v. McCarthy, 801 F.2d

1080, 1087 (9th Cir. 1986) ("our goal is to cure only constitutional

violations"), cert. denied, 481 U.S. 1069 (1987).

This Court has held that in a prison setting the remedy

must be tailored to specific constitutional violations. See Lewis Vv.

(Casey, 116 S. Ct. 2174, 2183 (1996) ("[t]}he remedy [imposed]

must of course be limited to the inadequacy that produced the

injury-in-fact that the plaintiff has established."). Id.

The PLRA codifies the standards governing the imposition of

injunctive relief by requiring express findings in accordance with

those standards.* The PLRA in no way prevents an inmate from

asserting a constitutional violation. Nor does it deprive a court

from hearing such a claim or affording an appropriate remedy for

any proven violation. In fact, the PLRA expressly requires that

prospective relief be continued if it "remains necessary to correct a

current or ongoing violation of the Federal right . . . " and is

narrowly drawn to remedy that violation. 18 U.S.C. § 3626(b)(3).°

3. The Termination of Relief Provision Does Not

Prescribe a Rule of Decision.

Finally, the petitioners contend that the PLRA

impermissibly prescribes unreasonable outcome-determinative

requirements for prison cases without changing the underlying law,

relying on United States v. Klein, 80 U.S. 128, 146 (1871) for

support.

“The imposition of such a procedural mechanism is clearly within Congress's

power to designate alternative mechanisms for the remediation of constitutional

violations. Cf. Seminole Tribe of Florida v. Florida, 116 S.Ct. 1114, 1132-1134

(1996) (Ex parte Young nonstatutory review precluded where Congress established

a statutory scheme for review under the Indian Gaming Regulatory Act).

> ‘The statute was recently amended to read “current and ongoing violation.”

Department of Justice Appropriations Act, 1998, Pub. L. No. 105-119, §123 (aX2),

111 Stat. 2440, 2470 (1997).

"Klein has been interpreted to hold that Congress may not

prescribe a rule of decision for the courts to follow without any

independent exercise of their judicial powers." Benjamin v.

Jacobson, 935 F. Supp. 332, 349 (S.D.N.Y. 1996). Rather, "[t]o

affect the outcome of a pending case, Congress must amend the

applicable law." Id.; Plaut, 115 S.Ct. at 1452 (citation omitted)

("Whatever the precise scope of Klein, . . . later decisions have

made clear that its prohibition does not take hold when Congress

amend[s] applicable law"); see also Robertson v. Seattle Audubon

Soc'y, 503 U.S. 429, 441 (1992) (declining to decide whether an

act of Congress was unconstitutional under Klein because the act

amended applicable law).

Here, contrary to petitioners’ contention, Congress has merely

articulated new remedial standards; it has not imposed an arbitrary

outcome or “rule of decision" for the application of pre-existing

law. As the Fourth Circuit explained, “Congress . . . has

unquestionably amended the law applicable to this case." Plyler v.

Moore, 100 F.3d 365, 372 (4th Cir. 1996). Since the PLRA

“compel[s] changes in law, not findings or results under old law,”

Seattle Audubon, 503 U.S. at 438, it does not violate the

separation-of-powers principles established in Klein.

B. The Application of the PLRA's Termination of Relief

Provision Does Not Implicate the Due Process Clause

By Impairing Any Existing Contract.

The petitioners contend that the PLRA's termination

provision would unconstitutionally impair their “contract” with

the defendants. No such contract exists. The Court’s inherent

power to modify or alter a consent decree makes a consent decree

fundamentally different from a private contract.

Even if the Consent Decree could be equated with a

private contract, the petitioners argument would still fail. A

claim that federal legislation impairs existing contracts falls under

the due process clause of the Fifth Amendment. Pension Benefit

Guaranty Corp. v. R. A. Gray Co., 467 U.S. 717, 733 (1984).

"The Fifth Amendment is not a complete bar to legislation that

may impair private contracts.” James v. Lash, 965 F. Supp.1190

(N.D. Ind., May 15, 1997). The challenging party must

demonstrate, "first, that the statute alters contractual rights,” and

if so, that the impairment is of “constitutional dimension.”

R.R. Co., 470 U.S. 451, 472 (1985). The challenging party must

then “overcome a presumption of constitutionality and ‘establish

that the legislature has acted in an arbitrary and irrational way.'"

Id., quoting Pension Benefit Guaranty Corp., 467 U.S. at 729.

However, “where a private contract is impaired by a federal

statute, judicial scrutiny is ‘quite minimal.'" James v. Lash, 965

F. Supp. 1190 (N.D. Ind., May 15, 1997), quoting National R.R.

Passenger Corp., 470 U.S. at 472.

The Sheriff is required to provide constitutional conditions

at the Nashua Street Jail. This obligation is independent of any

Consent Decree. Accordingly, because the petitioners always

possess the right to seek a remedy for any unconstitutional

condition, any alleged contractual impairment of their nghts under

the Consent Decree could never rise to the level “of constitutional

Santa Fe RR. Co., 470 U.S. 451, 472 (1985); see also James v.

Lash, 965 F. Supp.1190 (N.D. Ind., 1997).

Conclusion

For the reasons stated herein, the petition for a writ of certiorari

should be denied.

Respectfully submitted,