US Supreme Court Briefs

No. 99-582


In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

RICHARD A. FRENCH, ET AL.

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

SETH P. WAXMAN
Solicitor General
Counsel of Record
BILL LANN LEE
Acting Assistant Attorney
General
BARBARA D. UNDERWOOD
Deputy Solicitor General
IRVING L. GORNSTEIN
Assistant to the Solicitor
General
MARK L. GROSS
MARIE K. MCELDERRY
Attorneys
Department of Justice
Washington, D.C. 20530
(202) 514-2217



QUESTIONS PRESENTED

Under the automatic stay provision of the Prison Litigation Reform Act of1995 (PLRA), 18 U.S.C. 3626(e) (Supp. III 1997), the filing of a motionto terminate prospective relief shall operate as a stay during the periodbeginning 30 days after the filing of the motion and ending on the datethe court rules on the motion. A court may postpone the effective date ofthe automatic stay for not more than 60 days for good cause, and any orderstaying, suspending, delaying, or barring the operation of the automaticstay (other than a postponement for not more than 60 days) is appealableunder 28 U.S.C. 1292(a)(1). The questions presented are:

1. Whether a district court has authority to suspend the automatic stayunder traditional equitable standards.

2. Whether the automatic stay provision violates constitutional separation-of-powersprinciples.


PARTIES TO THE PROCEEDING

The petitioner is the United States.
The private respondents are Richard A. French, Morris E. Dozier, MartinW. Bradberry, Henry C. Jennings.
The state respondents are Charles B. Miller, Superintendent of the PendletonCorrectional Facility, Edward I. Cohn, Commissioner, Indiana Departmentof Correction, and Herbert Newkirk, Regional Director, Indiana Departmentof Correction.





In the Supreme Court of the United States

No. 99-582
UNITED STATES OF AMERICA, PETITIONER

v.

RICHARD A. FRENCH, ET AL.

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the United States, petitions for a writof certiorari to review the judgment of the United States Court of Appealsfor the Seventh Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App., infra, 1a-23a) is reported at178 F.3d 437.

JURISDICTION

The judgment of the court of appeals was entered on May 6, 1999. On July29, 1999, Justice Stevens extended the time within which to file a petitionfor a writ of certiorari to and including September 3, 1999, and on August23, 1999, Justice Stevens further extended the time for filing a petitionto and including October 3, 1999 (a Sunday). The jurisdiction of this Courtis invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant statutory provisions are reproduced in the appendix to thispetition. App., infra, 40a-43a.

STATEMENT

1. In 1996, Congress enacted the Prison Litigation Reform Act of 1995 (PLRA),Pub. L. No. 104-134, Tit. VIII, §§ 801-810, 110 Stat. 1321-66to 1321-77. The PLRA sets forth standards for the entry and terminationof prospective relief in civil actions challenging conditions at prisonfacilities. Under the PLRA, prospective relief in prison conditions cases"shall extend no further than necessary to correct the violation ofthe Federal right of a particular plaintiff or plaintiffs." 18 U.S.C.3626(a)(1)(A) (Supp. III 1997).
The PLRA provides for the "immediate termination" of relief thatdoes not conform to that new statutory standard. 18 U.S.C. 3626(b)(2). Itspecifies that, "[i]n any civil action with respect to prison conditions,a defendant or intervener shall be entitled to the immediate terminationof any prospective relief if the relief was approved or granted in the absenceof a finding by the court that the relief is narrowly drawn, extends nofurther than necessary to correct the violation of the Federal right, andis the least intrusive means necessary to correct the violation of the Federalright." 18 U.S.C. 3626(b)(2) (Supp. III 1997). That statutory mandateis subject to an important qualification. "Prospective relief shallnot terminate if the court makes written findings based on the record thatprospective relief remains necessary to correct a current and ongoing violationof the Federal right, extends no further than necessary to correct the violationof the Federal right, and that the prospective relief is narrowly drawnand the least intrusive means to correct the violation." 18 U.S.C.3626(b)(3) (Supp. III 1997). A party may seek immediate termination evenif the relief "was originally granted or approved before * * * thedate of the [PLRA's enactment]." § 802(b), 110 Stat. 1321-70 (18U.S.C. 3626 note 1996 Amendment).1
The PLRA establishes special procedures that govern motions for immediatetermination. A court is required to "promptly rule" on a motionfor immediate termination. 18 U.S.C. 3626(e)(1) (Supp. III 1997). When acourt fails to issue a prompt ruling, mandamus "shall lie" asa remedy. Ibid. In addition, under the automatic stay provision, at issuehere, the filing of a motion for immediate termination "shall operateas a stay during the period * * * beginning on the 30th day after such motionis filed * * * and * * * ending on the date the court enters a final orderruling on the motion." 18 U.S.C. 3626(e)(2) (Supp. III 1997). A courtmay "postpone the effective date of an automatic stay * * * for notmore than 60 days for good cause," but no postponement is permissible"because of general congestion of the court's calendar." 18 U.S.C.3626(e)(3) (Supp. III 1997). Any order "staying, suspending, delaying,or barring the operation of the automatic stay" (other than an orderpostponing the automatic stay under the 60 day postponement provision) issubject to appellate review. Such an order "shall be treated as anorder refusing to dissolve or modify an injunction and shall be appealablepursuant to section 1292(a)(1) of title 28." 18 U.S.C. 3626(e)(4) (Supp.III 1997).2

2. In 1975, a class of inmates at the Pendleton Correctional Facility (respondents)filed suit against several Indiana prison officials (the State), allegingthat the conditions at the facility violated state and federal law. Aftera trial, the district court found violations of state and federal law andentered a remedial order designed to correct those violations. French v.Owens, 538 F. Supp. 910 (S.D. Ind. 1982), aff'd in part, vacated in part,777 F.2d 1250 (7th Cir. 1985), cert. denied, 479 U.S. 817 (1986). Whilean appeal from that judgment was pending, this Court held in Pennhurst StateSchool and Hospital v. Halderman, 465 U.S. 89 (1984), that the EleventhAmendment deprives federal courts of jurisdiction to issue prospective reliefagainst state officers based on state law. The Seventh Circuit remandedthe case to the district court for reconsideration in light of Pennhurst.See 777 F.2d at 1251.
On remand, the district court found that most of the state law violationsalso violated federal law. 777 F.2d at 1251. The district court also issuedan amended remedial order that took into account improvements that had beenmade at the facility. Ibid. The Seventh Circuit affirmed in part and vacatedin part. Id. at 1250. It upheld the provisions of the district court's orderaddressing overcrowding, double celling, improper use of mechanical restraints,inadequate medical care, unsanitary kitchen services, and insufficient staffing;it vacated the provisions addressing exercise and recreation, fire and safety,and protective custody. Id. at 1258. The parties resolved the remainingissues through joint stipulations.

3. In 1997, the State filed a motion under the PLRA for immediate terminationof the district court's remedial orders. App., infra, 5a-6a. Respondentsfiled a motion for a preliminary injunction to suspend the operation ofthe automatic stay. Id. at 6a. The district court granted respondents' motion,finding that the automatic stay provision "is clearly unconstitutional,"that respondents "[were] likely to succeed on the merits of their challengeto the automatic stay," and that the State "would not be harmedby the entry of a preliminary injunction." Id. at 36a-37a. The Stateappealed the order suspending the automatic stay, and the United Statesintervened in the appeal, pursuant to 28 U.S.C. 2403(a), to defend the constitutionalityof the automatic stay provision. The United States argued that the automaticstay provision does not deprive a court of authority to suspend the automaticstay in accordance with traditional equitable standards and that, when soconstrued, the automatic stay provision does not violate constitutionalseparation-of-powers principles.

4. The court of appeals affirmed the district court's order. App., infra,1a-23a. The court of appeals interpreted the automatic stay as a legislativecommand that a stay of prospective relief occur no later than 90 days afterthe filing of a motion for termination. Id. at 9a-12a. The court expresslyrejected the view of the United States and of the Sixth Circuit in Hadixv. Johnson, 144 F.3d 925 (1998), that a court has inherent authority tosuspend the automatic stay in accordance with traditional equitable standards.Ibid. The court noted that the statutory text provides that the filing ofa motion for termination "shall" operate as a stay and that thestay would be "automatic." App., infra, 12a. The court also observedthat the text of the automatic stay provision "specifie[s] not onlya clear starting point, but also the ending point for the stay." Ibid.The court concluded that "[e]ven though we do not lightly assume thatCongress meant to restrict the equitable powers of the federal courts, wefind it impossible to read this language as doing anything less than that."Ibid.
The court then ruled that the automatic stay provision "violates theseparation of powers principle because it is a direct legislative suspensionof a court order." App., infra, 18a. The court noted that in Plautv. Spendthrift Farm, Inc., 514 U.S. 211, 218-219 (1995), this Court statedthat Article III "gives the Federal Judiciary the power, not merelyto rule on cases, but to decide them, subject to review only by superiorcourts in the Article III hierarchy." App., infra, 19a. The court ofappeals concluded that the automatic stay provision violates that principlebecause it "places the power to review judicial decisions outside ofthe judiciary: it is a self-executing legislative determination that a specificdecree of a federal court * * * must be set aside at least for a periodof time, no matter what the equities, no matter what the urgency of keepingit in place." Ibid.
The court of appeals also concluded that the automatic stay provision violatesthe separation-of-powers principle established in United States v. Klein,80 U.S. (13 Wall.) 128 (1871). App., infra, 19a-20a. The court characterizedKlein as holding that "Congress does not have the power to impose arule of decision for pending judicial cases, apart from its power to changethe underlying applicable law." Id. at 20a. The court concluded thatthe automatic stay provision "falls comfortably within the rule ofKlein," because it mandates that prospective relief must be terminatedduring the pendency of the case. Ibid.
Because its reasoning was "sufficiently at odds" with the reasoningof the Sixth Circuit in Hadix, the panel circulated its opinion to the fullcourt for the purpose of determining whether the case should be rehearden banc. App., infra, 23a n.3. A majority of the judges in regular activeservice did not vote to hear the case en banc. Ibid.
Judge Easterbrook (joined by Chief Judge Posner and Judge Manion) dissentedfrom the denial of rehearing en banc. App., infra, 23a-35a. The dissentersagreed with the panel that a district court does not have authority to suspendthe automatic stay under traditional equitable standards. Id. at 23a. Thedissenters concluded, however, that the automatic stay provision, as soconstrued, does not violate separation-of-powers principles.
The dissenters disagreed with the panel's conclusion that the automaticstay provision unconstitutionally interferes with a court's ability to adjudicatea case. App., infra, 26a-30a. In their view, the automatic stay provisionsimply "goads" courts to rule promptly on the merits of a motionfor termination, id. at 28a, and the Constitution does not give courts animmunity from deadlines, id. at 28a-29a. The dissenters also disagreed withthe majority's conclusion that the automatic stay provision violates therule in Klein. They reasoned that the automatic stay provision does notmandate a rule of decision without a change in the underlying law, but simplystays prospective relief until the court determines whether that reliefcomplies with the new standard set forth in the immediate termination provision.Id. at 30a-31a. The dissenters asserted that the panel's decision threatensthe constitutionality of numerous federal statutes, including the automaticstay in bankruptcy, 11 U.S.C. 362(a)(2), and the Speedy Trial Act of 1974,18 U.S.C. 3161, 3162(a)(2). App., infra, 31a- 35a.
The State has filed a petition for a writ of certiorari to review the courtof appeals' judgment. Duckworth v. French, No. 99-224. The State does notchallenge the court of appeals' construction of the automatic stay provision.Its petition presents the question whether the automatic stay provisionas construed by the court of appeals "violates separation-of-powersprinciples by legislatively specifying a rule of decision or legislativelyannulling a judgment." Pet. i.

REASONS FOR GRANTING THE PETITION

The court of appeals has held that the automatic stay provision of the PLRAviolates constitutional separation-of-powers principles. That holding invalidatesa provision of a recent Act of Congress. The court's constitutional rulingis premised on the court's interpretation of the automatic stay provisionas not permitting a district court to suspend the automatic stay based ontraditional equitable standards. That interpretation of the automatic stayprovision conflicts with the decision of the Sixth Circuit in Hadix v. Johnson,144 F.3d 925 (1998), and of the Fifth Circuit in Ruiz v. Johnson, 178 F.3d385 (1999). Both circuits have held that a court has inherent authorityto suspend the automatic stay based on traditional equitable standards andhave upheld the constitutionality of the automatic stay provision on thatbasis.
The court of appeals' construction of the automatic stay provision is incorrect.The automatic stay provision does not deprive a court of authority to suspendthe automatic stay under traditional equitable standards. Thus, when a partyopposing an immediate termination motion can establish that a stay of thecourt's outstanding decree will cause irreparable injury and that the immediatetermination motion is likely to be defeated on the merits, a court has discretionto suspend the automatic stay. When the automatic stay provision is so construed,it avoids the serious constitutional question that would be presented ifthe provision were interpreted as not permitting a district court to suspendthe automatic stay when justified under traditional equitable standards.Review of the court of appeals' decision is therefore warranted.

1. The court of appeals in this case held that the automatic stay provisionin the PLRA violates constitutional separation-of-powers principles. Thecourt specifically stated that the automatic stay provision "representsan unconstitutional legislative encroachment into the powers reserved tothe judiciary." App., infra, 18a; see also id. at 19a (automatic stay"amounts to an unconstitutional intrusion on the power of the courtsto adjudicate cases"); id. at 20a (automatic stay "exceeds thepower of the legislative branch"). That invalidation of a provisionof a recent Act of Congress warrants this Court's review. See United Statesv. Gainey, 380 U.S. 63, 65 (1965) (certiorari granted "to review theexercise of the grave power of annulling an Act of Congress").

2. The premise of the court of appeals' constitutional ruling is that theautomatic stay provision does not permit a court to suspend the automaticstay in accordance with traditional equitable standards. In the court ofappeals' view, the automatic stay provision "is a self-executing legislativedetermination that a specific decree of a federal court * * * must be setaside at least for a period of time, no matter what the equities, no matterwhat the urgency of keeping it in place." App., infra, 19a.
That interpretation of the automatic stay provision conflicts with the SixthCircuit's decision in Hadix and the Fifth Circuit's decision in Ruiz. InHadix, the Sixth Circuit held that "courts retain the power to suspendthe automatic stay in accordance with general equitable standards,"144 F.3d at 937. Specifically, the court held that a court may suspend theautomatic stay when "the traditional standard governing the issuanceof a preliminary injunction in equity" is satisfied. Id. at 945. Similarly,in Ruiz, the Fifth Circuit held that, "[u]nder our reading of §3626(e), the district court * * * retains its authority to suspend the (e)(2)stay." 178 F.3d at 395.
The court of appeals in this case acknowledged that its interpretation ofthe automatic stay provision conflicted with the interpretation adoptedby the Sixth Circuit in Hadix. App., infra, 12a ("Although we havethe highest regard for our Sixth Circuit colleagues and the concerns thatmotivated them to adopt the Justice Department's view of (e)(2), we cannotagree that the language of that subpart can be pushed this far.").In Ruiz, the Fifth Circuit also noted the conflict, observing that the SixthCircuit in Hadix and the court below had "reached opposite resultswith respect to statutory interpretation." 178 F.3d at 393. The FifthCircuit then adopted the Sixth Circuit's interpretation and rejected theinterpretation adopted by the court below. Id. at 394-395. There is thereforea clear conflict in the circuits on the question whether the automatic stayprovision permits a court to suspend the automatic stay in accordance withtraditional equitable standards.
The conflict between the decision below and the decisions in Hadix and Ruizis not only one of statutory construction. The difference between the circuitson the question whether a court may suspend the automatic stay in accordancewith traditional equitable standards led the circuits to reach differentconclusions about the constitutionality of the automatic stay provision.While the court below invalidated the automatic stay provision, the Fifthand Sixth Circuits upheld its constitutionality. Ruiz, 178 F.3d at 395 ("Underour reading," the automatic stay provision "is therefore constitutional");Hadix, 144 F.3d at 937 ("Given [our] construction, the amended automaticstay provision is constitutional."). The consequence is that the automaticstay provision is fully effective in the Fifth and Sixth Circuits, but whollyineffective in the Seventh Circuit. Thus, in the Fifth and Sixth Circuits,if the district court does not postpone the automatic stay for good causewithin 30 days of the filing of a motion for termination, or suspend theautomatic stay in accordance with traditional equitable standards within90 days of the filing of the motion, the automatic stay will take effect.In contrast, in the Seventh Circuit, the automatic stay can never take effect.That conflict in the circuits warrants resolution by this Court.

3. The court of appeals' interpretation of the automatic stay provisionis incorrect. Federal district courts have always enjoyed inherent authorityto issue interim equitable relief to preserve the status quo until a casethat is pending before them is resolved. 11A Charles Alan Wright et al.,Federal Practice and Procedure § 2943, at 79 (1995). To obtain suchrelief, a person must ordinarily demonstrate that a change in the statusquo would cause him irreparable injury and that he is likely to succeedon the merits of the litigation. See Doran v. Salem Inn, Inc., 422 U.S.922, 931 (1975). In deciding whether to grant such relief, the court alsoweighs the harm to others and the public interest. Ibid; Yakus v. UnitedStates, 321 U.S. 414, 440 (1944). The court of appeals interpreted the automaticstay provision to completely strip a federal court of its inherent authorityto issue such interim relief. Thus, under the court of appeals' interpretation,even when the party opposing the immediate termination motion can show thata stay of the relief in the decree would cause him irreparable injury andthat he is likely to defeat the immediate termination motion, the courtwould have no authority to suspend the automatic stay.
This Court has held, however, that, "[a]bsent the clearest commandto the contrary from Congress, federal courts retain their equitable powerto issue injunctions in suits over which they have jurisdiction," Califanov. Yamasaki, 442 U.S. 682, 705 (1979), and that "[u]nless a statutein so many words, or by a necessary and inescapable inference, restrictsthe court's jurisdiction in equity, the full scope of that jurisdictionis to be recognized and applied." Porter v. Warner Holding Co., 328U.S. 395, 398 (1946); see also Hecht Co. v. Bowles, 321 U.S. 321, 330 (1944)(when "Congress desire[s] to make * * * an abrupt departure from traditionalequity practice," it makes "its desire plain"). Those holdingsare controlling here. The automatic stay provision does not clearly foreclosea court from preserving the status quo by suspending the automatic stayin accordance with traditional equitable standards. Instead, when read inconjunction with other related provisions of the Act, the automatic stayprovision is most naturally read as permitting the exercise of that authority.The court of appeals therefore erred in failing to interpret the automaticstay provision to permit a court to suspend the automatic stay when justifiedunder traditional equitable standards.

a. The automatic stay provision states that the filing of a motion for immediatetermination "shall operate as a stay during the period-* * * beginningon the 30th day after such motion is filed * * * and * * * ending on thedate the court enters a final order ruling on the motion." 18 U.S.C.3626(e)(2) (Supp. III 1997). Particularly when read against the backgroundprinciple that federal courts retain their inherent equitable authorityabsent the clearest command to the contrary, the text of the automatic stayprovision does not deprive a court of authority to suspend the automaticstay when justified by traditional equitable standards. Instead, it simplydescribes how the statute is to operate in the absence of judicial intervention.
The court of appeals concluded that, because the language of the automaticstay provision states that the automatic stay "shall" take effect,and specifies when the stay begins and ends, it necessarily precludes anexercise of traditional equitable authority. App., infra, 12a. Those featuresof the statute, however, are perfectly consistent with the view that thestatute establishes what will happen in the absence of judicial intervention;they do not demonstrate that Congress intended to take the extraordinarystep of eliminating a court's inherent authority to preserve the statusquo under traditional equitable standards.

b. The structure of the Act further supports the conclusion that Congressdid not intend to strip a federal court of its inherent authority to issueinterim relief when justified under traditional equitable standards. Thevery next provision of the Act (the postponement provision) specifies that"[t]he court may postpone the effective date of an automatic stay ** * for not more than 60 days for good cause," which does not include"general congestion of the court's calendar." 18 U.S.C. 3626(e)(3)(Supp. III 1997). If Congress had intended for the automatic stay provisionto block judicial intervention, and not just to establish the regime thatwould exist in the absence of judicial intervention, the postponement provisionwould likely have been introduced by a phrase such as "notwithstandingSection 3626(e)(2)." The absence of such introductory language confirmsthat the automatic stay provision only addresses what will occur in theabsence of judicial intervention and that it does not affect judicial authorityto suspend the automatic stay in accordance with traditional equitable standards.
The postponement provision does directly affect judicial authority. It notonly authorizes a court to postpone the effective date of the automaticstay for 60 days for good cause; it necessarily implies that a court maynot postpone the automatic stay under a good cause standard for more than60 days. The absence of judicial authority to postpone the automatic stayunder a statutory good cause standard, however, does not imply that a courtlacks authority to suspend the automatic stay under traditional equitablestandards.
The reason is that, under the statutory good cause standard, any legitimatereason for postponing a hearing on the immediate termination motion, otherthan general docket congestion, could justify a postponement of up to 60days. 18 U.S.C. 3626(e)(3) (Supp. III 1997). Thus, a counsel's schedulingconflict, the unavailability of a witness, a general need for discovery,or a court's involvement in another pressing matter could all serve as abasis for a statutory postponement order. In contrast, in order to obtaina suspension of the automatic stay under traditional equitable standards,a party would ordinarily have to demonstrate that a stay of the court'sorders would cause him irreparable injury and that he is likely to defeatthe immediate termination motion. Doran, 422 U.S. at 931. Congress's unwillingnessto permit a postponement of the automatic stay under a generous good causestandard for more than 60 days plainly does not imply that Congress hasforeclosed a court from suspending the automatic stay when justified underthe far more demanding standards for obtaining interim equitable relief.To the contrary, the fact that Congress has limited judicial authority inone respect implies that the court remains free to exercise the traditionalauthority that has not been restricted.

c. It is also significant that Congress has provided a mechanism for appellatereview of orders "staying, suspending, delaying, or barring the operationof the automatic stay" (other than an order postponing the automaticstay under the 60 day postponement provision). 18 U.S.C. 3626(e)(4) (Supp.III 1997). Such orders "shall be treated as an order refusing to dissolveor modify an injunction and shall be appealable pursuant to section 1292(a)(1)of title 28." Ibid. As the Sixth Circuit concluded in Hadix, 144 F.3dat 938, a provision for appellate review of orders suspending the automaticstay implies that district courts have authority to issue such orders. Seealso Ruiz, 178 F.3d at 394.
The court of appeals attempted to explain the provision for appellate reviewas a mechanism for ensuring prompt reversal of all orders suspending theautomatic stay. 178 F.3d at 443. If that were Congress's intent, however,it would have provided for appellate correction through mandamus, whichis the mechanism that has traditionally been used "to confine an inferiorcourt to a lawful exercise of its prescribed jurisdiction or to compel itto exercise its authority when it is its duty to do so." Roche v. EvaporatedMilk Ass'n, 319 U.S. 21, 26 (1943). Indeed, Congress manifested its awarenessof the distinction in the statute at issue here. At the same time that Congressprovided for appeal of an order suspending the automatic stay, it also providedfor review by mandamus of a court's failure to perform its duty to issuea prompt ruling on a motion for termination. 18 U.S.C. 3626(e)(1) (Supp.III 1997). Thus, Congress manifested its recognition that an order suspendingthe automatic stay is within the authority of a district court, and mustbe reviewed on appeal for conformity with traditional equitable standards.

d. Interpreting the automatic stay provision to permit a district courtto suspend the automatic stay based on traditional equitable standards isfurther supported by the principle that a statute should be construed toavoid a serious constitutional question, when such a construction is fairlypossible. Jones v. United States, 119 S. Ct. 1215, 1222 (1999); United Statesv. X- Citement Video, Inc., 513 U.S. 64, 78 (1994). In Plaut v. SpendthriftFarm, Inc., 514 U.S. 211, 219 (1995), the Court held that Congress lacksauthority under the Constitution retroactively to command a federal courtto reopen a final judgment for monetary relief. The Court explained thatArticle III "gives the Federal judiciary the power, not merely to ruleon cases, but to decide them, subject to review only by superior courtsin the Article III hierarchy." Id. at 218-219. In the course of theopinion, the Court also quoted Judge Iredell's statement in Hayburn's Case,2 U.S. (2 Dall.) 409, 413 (1792), that "no decision of any court ofthe United States can, under any circumstances, * * * be liable to a revision,or even suspension, by the legislature itself, in whom no judicial powerof any kind appears to be vested." 514 U.S. at 226.
If the automatic stay provision were interpreted as a "self-executinglegislative determination that a specific decree of a federal court * ** must be set aside at least for a period of time, no matter what the equities,no matter what the urgency of keeping it in place," (App., infra, 19a),a serious question would be raised concerning whether the automatic stayprovision violates the separation-of-powers principles recognized in Plaut.In contrast, as the Fifth and Sixth Circuits have held, Ruiz, 178 F.3d at395; Hadix, 144 F.3d at 937, and as the court of appeals in this case acknowledged,App., infra, 17a n.2, if the automatic stay provision is interpreted topermit a court to suspend the automatic stay in accordance with traditionalequitable standards, no serious separation-of-powers question is presented.Since the automatic stay provision can fairly be interpreted to permit acourt to suspend the automatic stay in accordance with traditional equitablestandards, the court of appeals erred in failing to adopt that interpretation.3

CONCLUSION

The petition for a writ of certiorari should be granted.
Respectfully submitted.

SETH P. WAXMAN
Solicitor General
BILL LANN LEE
Acting Assistant Attorney
General
BARBARA D. UNDERWOOD
Deputy Solicitor General
IRVING L. GORNSTEIN
Assistant to the Solicitor
General
MARK L. GROSS
MARIE K. MCELDERRY
Attorneys

OCTOBER 1999


1 Under 18 U.S.C. 3626(b)(1) (Supp. III 1997), all decrees, including thoseentered with the necessary findings, are also subject to periodic reviewto determine whether they remain necessary to remedy a constitutional violation.Section 3626(b)(1) provides for such review two years after the entry ofrelief, one year after a denial of a motion to terminate, and, in the caseof pre-PLRA decrees, two years after the date of enactment. In April 1998,all pre-PLRA decrees became subject to periodic review.

2 As originally enacted, the automatic stay provision specified that "[a]nyprospective relief subject to a pending motion shall be automatically stayed,"beginning on the 30th day after the filing of a motion for termination andending on the date the court rules on the motion. § 802, 110 Stat.1321-68. The 1997 amendments to the PLRA revised the automatic stay provisionso that it now specifies that "[a]ny motion to modify or terminateprospective relief * * * shall operate as a stay," beginning on the30th day after the filing of a motion for termination and ending on thedate the court rules on the motion. Pub. L. No. 104-134, § 802, 110Stat. 1321-68 (18 U.S.C. 3626(e)(1)-(2) (Supp. III 1997)). The 1997 amendmentsalso added: (1) the provision authorizing mandamus when a court fails torule promptly on a motion for termination, 18 U.S.C. 3626(e)(1) (Supp. III1997); (2) the provision authorizing a court to postpone the automatic stayfor 60 days for good cause, 18 U.S.C. 3626(e)(3) (Supp. III 1997); and (3)the provision authorizing an appeal from an order staying the automaticstay, 18 U.S.C. 3626(e)(4) (Supp. III 1997). Congress specified that theamendments "shall take effect upon the date of the enactment of thisAct [Nov. 26, 1997] and shall apply to pending cases." Pub. L. No.105-119, § 123(b), 111 Stat. 2471 (18 U.S.C. 3626 note).

3 This case does not raise any question concerning the constitutionalityof the immediate termination provision. As the courts of appeals have uniformlyconcluded, that provision falls comfortably within Congress's authorityunder Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.)421 (1855), to affect prospective relief through a change in the applicablelaw. See Berwanger v. Cottey, 178 F.3d 834 (7th Cir. 1999); Nichols v. Hopper,173 F.3d 820 (11th Cir. 1999); Benjamin v. Jacobson, 172 F.3d 144 (2d Cir.1999) (en banc), petition for cert. pending, No. 98-2042; Imprisoned CitizensUnion v. Ridge, 169 F.3d 178 (3d Cir. 1999); Hadix v. Johnson, 133 F.3d940 (6th Cir.), cert. denied, 118 S. Ct. 2368 (1998); Inmates of SuffolkCounty Jail v. Rouse, 129 F.3d 649 (1st Cir. 1997), cert. denied, 118 S.Ct. 2366 (1998); Dougan v. Singletary, 129 F.3d 1424 (11th Cir. 1997), cert.denied, 118 S. Ct. 2375 (1998); Gavin v. Branstad, 122 F.3d 1081 (8th Cir.1997), cert. denied, 118 S. Ct. 2374 (1998); Plyler v. Moore, 100 F.3d 365(4th Cir. 1996), cert. denied, 520 U.S. 1277 (1997).

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

No. 97-3075
RICHARD A. FRENCH, ET AL., PLAINTIFFS-APPELLEES

v.

JACK R. DUCKWORTH, ET AL., DEFENDANTS-APPELLANTS,
AND
UNITED STATES OF AMERICA, INTERVENOR-APPELLANT

Appeal from the United States District Court
for the Southern District of Indiana
Indianapolis Division
No. IP 75-677-C-S. Hugh Dillin, Judge

[Argued April 6, 1998.
Decided May 6, 1999.*]

Before: FLAUM, ROVNER, and DIANE P. WOOD, Circuit Judges.
DIANE P. WOOD, Circuit Judge.
This case began almost three decades ago when inmates at what is now thePendleton Correctional Facility in Indiana filed a class action againstthe state claiming that certain conditions at the prison violated theirconstitutional rights. They obtained some of the relief they sought in aninjunction that was affirmed by this court in French v. Owens, 777 F.2d1250, 1258 (7th Cir. 1985), and the prison has operated under that injunction,as modified from time to time, ever since. The present action arose whenthe State of Indiana decided to take advantage of the 1996 Prison LitigationReform Act ("PLRA") and petition to terminate the injunction.The merits of that effort, however, are not before us at this time. Instead,we must decide whether the so-called "automatic stay" provisionof the PLRA, codified at 18 U.S.C. § 3626(e)(2), applies, and if itdoes, whether it is constitutional.
I
A
In order to place this case in context, we begin with a brief descriptionof the PLRA as it affects injunctions addressing prison conditions. Thepart of the statute with which we are concerned addresses the subject of"[a]ppropriate remedies with respect to prison conditions." 18U.S.C. § 3626. Subpart (a)(1) provides that a federal court must limitprospective relief with respect to prison conditions in a variety of ways:
The court shall not grant or approve any prospective relief unless the courtfinds that such relief is narrowly drawn, extends no further than necessaryto correct the violation of the Federal right, and is the least intrusivemeans necessary to correct the violation of the Federal right.
18 U.S.C. § 3626(a)(1).
Recognizing that many institutions are already operating under existinginjunctions, the statute also provides a way for the prison authoritiesto bring their federally imposed obligations into line with the limitationsof § 3626(a)(1). Part (b) sets out a road map for the termination ofprospective relief that has either outlived its usefulness, or that violatesthe (a)(1) conditions. Under the authority of § 3626(b)(1), prospectiverelief is terminable upon motion of any party or intervener within two yearsafter the court granted the relief (or two years after the date of enactmentof the PLRA), or one year after the court denied a request to terminaterelief. Subpart (b)(2), which has come to be known as the "immediatetermination" provision of the statute, establishes the defendant'sor intervener's right to relief. Because this is the basis for the state'spetition, we set it out in its entirety:
(2) Immediate termination of prospective relief.- In any civil action withrespect to prison conditions, a defendant or intervener shall be entitledto the immediate termination of any prospective relief if the relief wasapproved or granted in the absence of a finding by the court that the reliefis narrowly drawn, extends no further than necessary to correct the violationof the Federal right, and is the least intrusive means necessary to correctthe violation of the Federal right.
18 U.S.C. § 3626(b)(2). Hard on the heels of this provision is anotherthat sets forth an exception to the entitlement to "immediate"termination:
(3) Limitation.-Prospective relief shall not terminate if the court makeswritten findings based on the record that prospective relief remains necessaryto correct a current and ongoing violation of the Federal right, extendsno further than necessary to correct the violation of the Federal right,and that the prospective relief is narrowly drawn and the least intrusivemeans to correct the violation.
18 U.S.C. § 3626(b)(3). Part (c) of the PLRA addresses settlements,basically saying that a court may not enter a settlement in the form ofa consent decree unless the settlement conforms to the statutory limitations,but that the parties are free to conclude any private settlement agreementthey wish, as long as that agreement is not directly enforceable by thecourt (other than by reinstatement of the case). Part (d) makes clear thatthe PLRA's limitations do not apply to relief entered by a state court basedsolely upon claims arising under state law.
Finally (for our purposes) is the automatic stay provision, part (e). Itbegins innocuously enough in subpart (e)(1), by calling for the court torule promptly on any motion to modify or terminate prospective relief. Theproblems arise with subpart (e)(2), which provides as follows:
(2) Automatic stay.-Any motion to modify or terminate prospective reliefmade under subsection (b) shall operate as a stay during the period-
(A)(i) beginning on the 30th day after such motion is filed, in the caseof a motion made under paragraph (1) or (2) of subsection (b); or
(ii) beginning on the 180th day after such motion is filed in the case ofa motion made under any other law; and
(B) ending on the date the court enters a final order ruling on the motion.
* * * * *
18 U.S.C. § 3626(e)(2). Since 1997, it has been possible for the courtto order a modest extension of time before the automatic stay goes intoeffect, if the court takes advantage of subpart (e)(3):
(3) Postponement of automatic stay.-The court may postpone the effectivedate of an automatic stay specified in subsection (e)(2)(A) for not morethan 60 days for good cause. No postponement shall be permissible becauseof general congestion of the court's calendar.
18 U.S.C. § 3626(e)(3). See Pub. L. No. 105-119, § 123, 11 Stat.2440, 2470 (1997) (adding this language). Finally, under subpart (e)(4)the statute expressly provides that an order "staying, suspending,delaying, or barring the operation of the automatic stay described in paragraph(2)" other than the orders authorized by (e)(3) may be appealed pursuantto 28 U.S.C. § 1292(a)(1).
B
With that background in mind, we now turn to what happened in this case.On June 5, 1997, Warden Jack R. Duckworth of the Pendleton CorrectionalFacility, along with Indiana officials Bruce Lemmon and Edward L. Conn (towhom we refer collectively as the state), filed a Motion To Terminate Decree,relying on § 3626(b)(1)(A) and (b)(2). In response, on June 30, 1997,the prisoner class ("the prisoners") filed a Motion for a TemporaryRestraining Order or Preliminary Injunction, in which they asked the courtto stay the automatic stay provision of § 3626(e)(2), which they describedin paragraph 2 of their motion. They also filed a memorandum in supportof the motion, in which they addressed the four standards that normallygovern the issuance of a preliminary injunction: (a) likelihood of successon their argument that the automatic stay provision of § 3626(e)(2)would be found unconstitutional; (b) irreparable harm to the prisoners ifthe "automatic termination" took effect; (c) lack of harm to thedefendants if the "automatic termination" was stayed; and (d)the public interest. The prisoners' memorandum concluded with a requestthat "the Court should enter a temporary restraining order or a preliminaryinjunction staying the operation of the automatic termination provisionof the PLRA." On the same day, the prisoners also filed a separateResponse to Defendants' Motion to Terminate Decree, in which they set forththeir position that the termination provisions of §§ 3626(b)(2)and (b)(3) are unconstitutional.
On July 3, 1997, the district court granted the temporary restraining orderthe prisoners had requested and scheduled a hearing on July 10 for fullerconsideration of the preliminary injunction motion. On July 11, followingthe hearing, the district court entered an order converting the TRO intoa preliminary injunction. The state has now appealed from that July 11 order.
Our review of the district court's actions is complicated by the fact thatthe court's orders granting the TRO and preliminary injunction can be readas confusing the § 3626(e)(2) automatic stay provision with the §3626(b)(2) immediate termination provision. (This confusion seems to haveoriginated with the parties themselves. We note that although the prisonerssought to stay the "automatic termination" provision, there isno such thing in the PLRA. There is one section providing for immediatetermination, and another requiring an automatic stay.) Even though the prisonershad not asked for a TRO against the (b)(2) immediate termination provision,the July 3 order recites that it "enjoin[s] and prohibit[s] the automatictermination [sic] provision of the Prison Litigation Reform Act from takingeffect." Further, the July 11 order explains that the court was convertingthe TRO into a preliminary injunction "for the principal reason thatthe Court believes that 18 U.S.C. § 3626(b)(2) is clearly unconstitutionalas found by other courts." The July 11 order concludes that "[a]ccordingly,there shall be no stay of prospective relief in this matter."
Although we considered remanding this case to the district court to findout what it really meant, in the end we concluded that such a step was unnecessary.A review of the entire record (including the transcript of the July 10 hearing)convinces us that the district court intended to enjoin the (e)(2) automaticstay provision, not the (b)(2) immediate termination provision. True, theorders referred to the "automatic termination" provision and to18 U.S.C. § 3626(b)(2). Several points convince us, however, that thedistrict court simply cited the wrong statutory section, a mistake to whichwe need not attach any significance unless it affects the substantial rightsof the parties, see Fed. R. Civ. P. 61. First, the motion before the courtand the arguments presented at the hearing on the preliminary injunctionaddressed only the automatic stay of (e)(2), not the immediate terminationrequired by (b)(2). There was a fair amount of discussion of (b)(2) at thehearing, but this was in the context of the likelihood that the prisonerscould defeat the state's underlying petition for immediate termination.Second, the record shows that proceedings have continued in the districtcourt on the question whether the decree should be terminated pursuant to§ 3626(b)(2), suggesting that the lower court is of the view that itdid not finally resolve the termination issue. Finally, and most important,the last paragraph of the court's injunction sets forth in plain Englishwhat it was doing. Stripped of citations, the only thing that paragraphdoes is to refuse to permit a stay of prospective relief to go into effect.In substance, this means the injunction addresses the (e)(2) problem, notthe (b)(2) problem.
Even though the question of the constitutionality of (b)(2) is not beforethis panel, it is presented in Berwanger v. Cottey, 178 F.3d 834 (7th Cir.1999), which this court has also decided today. In Berwanger, we join theoverwhelming majority of our sister circuits and hold that § 3626(b)(2)may be applied to existing consent decrees. See, e.g., Imprisoned CitizensUnion v. Ridge, 169 F.3d 178 (3d Cir. 1999); Tyler v. Murphy, 135 F.3d 594(8th Cir. 1998); Hadix v. Johnson, 133 F.3d 940 (6th Cir. 1998); Douganv. Singletary, 129 F.3d 1424 (11th Cir. 1997); Inmates of Suffolk CountyJail v. Rouse, 129 F.3d 649 (1st Cir. 1997); Benjamin v. Jacobson, 172 F.3d144 (2d Cir. 1997) (en banc); Gavin v. Branstad, 122 F.3d 1081 (8th Cir.1997); Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996). Cf. Taylor v. UnitedStates, 143 F.3d 1178 (9th Cir. 1998) (finding § 3626(b)(2) unconstitutional),opinion withdrawn and en banc rehearing granted, 158 F.3d 1059 (9th Cir.1998).
II
That leaves the question whether the district court was empowered to enjointhe operation of § 3626(e)(2)'s automatic stay, and if it was not,whether that subsection is constitutional. Bearing in mind that we shouldtry to avoid constitutional questions if we can, we address the questionof statutory interpretation first.
The only other court of appeals to have considered the scope and constitutionalityof (e)(2) is the Sixth Circuit, in its opinion in Hadix v. Johnson, 144F.3d 925 (6th Cir. 1998). That court concluded that if (e)(2) were readto mean what it apparently says-that is, as a legislative command that astay of prospective relief occurs as a matter of law no later than 90 daysafter the state's petition is filed, and that this legislative stay continuesin effect until the findings required by (b)(3) have been made-then it wouldbe "an unconstitutional incursion by Congress into the powers reservedfor the Judiciary." Id. at 937. In order to avoid a finding of unconstitutionality,the court chose to adopt the position that the Justice Department had urgedand concluded that the courts "retain the power to suspend the automaticstay in accordance with general equitable principles." Id. By that,the Sixth Circuit meant that the automatic stay of (e)(2) could itself bestayed by a court using the traditional standards for issuing a preliminaryinjunction. Id. at 945.
While the decisions of the district courts do not create binding precedents(particularly not those within the Sixth Circuit, which are now bound byHadix), it is nevertheless noteworthy that a number of judges have agreedwith the Sixth Circuit that subpart (e)(2) is unconstitutional if it isa legislative stay, but they have not agreed that the statute can be savedby a narrowing interpretation. See United States v. Michigan, 989 F. Supp.853 (W.D. Mich. 1996); Glover v. Johnson, 957 F. Supp. 110 (E.D. Mich. 1997);Hadix v. Johnson, 933 F. Supp. 1362 (W.D. Mich. 1996) (Enslen, C.J.); Hadixv. Johnson, 933 F. Supp. 1360 (E.D. Mich. 1996) (Feikens, J.). The questionis one of first impression in this circuit, and we have benefitted fromthe careful consideration that our colleagues on the federal bench havedevoted to it.
We are well aware of the rule requiring courts to construe statutes consistentlywith the Constitution, if the language will bear any such construction.Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. TradesCouncil, 485 U.S. 568, 575, 108 S. Ct. 1392, 99 L.Ed.2d 645 (1988), citingHooper v. California, 155 U.S. 648, 657, 15 S. Ct. 207, 39 L.Ed. 297 (1895);N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S. 490, 500, 99 S. Ct. 1313,59 L.Ed.2d 533 (1979). But the qualification that the language must be ableto bear the constitutional interpretation is an important one. Courts cannotredraft statutes so that they read the way Congress might have written them,or should have written them. Instead, we must taken the laws as they aregiven to us and work with them.
As was the case before the Sixth Circuit, three different views of (e)(2)have been urged on us: the prisoners argue that it is unconstitutional onseveral grounds; the state defends its constitutionality as a mere regulationof procedure; and the United States is of the view that (e)(2) would bean unconstitutional violation of either the separation of powers doctrineor the prohibition against legislative suspension of a particular judgmentif (e)(2) really required automatic stays. The United States argues, however,that the automatic stay provision should be read to instruct a court reviewingprospective relief that the court should-but is not required to-stay therelief, an interpretation that avoids the constitutional flaws.
Before we delve too far into these points, we must decide which readingof subpart (e)(2) is correct: that of the prisoners and the state, on theone hand, or that of the United States, on the other. If we agree with theSixth Circuit that the (e)(2) stay is discretionary in the final analysis,then there would be no need to explore the constitutional issues further.The statute would be reduced to something that placed the burden of movingfor a stay or preliminary injunction on the prisoners rather than the state,but once the issue was before the court the normal equitable considerationswould determine whether existing decree provisions remained in place pendinga decision on a termination petition, or if they should be modified.1 Subpart(e)(4) of the statute would in addition make it clear that appellate reviewunder 28 U.S.C. § 1292(a)(1) was available no matter what the courtcalled its order "staying, suspending, delaying, or barring the operationof the automatic stay described in paragraph (2). . . ."
Although we have the highest regard for our Sixth Circuit colleagues andthe concerns that motivated them to adopt the Justice Department's viewof (e)(2), we cannot agree that the language of that subpart can be pushedthis far. First, Congress used unequivocal words when it drafted (e)(2).A motion to modify or terminate prospective relief made under part (b) shalloperate as a stay. Congress specified that the stay would be automatic.Finally, it specified not only a clear starting point, but also the endingpoint for the stay. Even though we do not lightly assume that Congress meantto restrict the equitable powers of the federal courts, we find it impossibleto read this language as doing anything less than that.
Recognizing that it was hard to find internal support for its reading within(e)(2) alone, the Sixth Circuit relied in part on the fact that (e)(4) makesorders staying or otherwise barring the automatic stay automatically appealable.Hadix, 144 F.3d at 936. Why would Congress have included this in the statute,they reasoned, if it did not anticipate that courts would continue to havethe power to issue equitable relief against the stay? In our view, thereis an answer to that question. The drafters of the PLRA realized that theywere skating close to the line in (e)(2), and they wanted to ensure thatthe issue that is now before us could be resolved in an interlocutory appeal.The fact that a district court's effort to stay the (e)(2) stay can be appealedsays nothing about what an appellate court must do once it has the case.Congress undoubtedly hoped that the appellate courts would reject thesedistrict court efforts and enforce the regime that (e)(2) sets up. That,however, is possible only if (e)(2) as we believe it must be read is constitutional,and so we now turn to that question.
The state (which as we said agrees with our reading of the statute) hasdefended (e)(2) as nothing more than the establishment of a procedure thatassures prompt review of prospective injunctive relief in prison litigation.All the prisoners need do, the state asserts, is to come forward with evidencebefore the 30th day (or the 90th day, if the court grants an extension oftime) showing that conditions at the prison require continuation of someor all of the prospective injunctive relief. In other words, the prisonersmust make a complete showing on the merits of the termination petition,the state must complete its rebuttal of that showing, and the court mustmake its ruling, all within the 90-day period. The state analogizes (e)(2)to the 10-day limit on TROs found in Fed. R. Civ. P. 65(b), to the five-daylimit on TROs under the Norris-LaGuardia Act, 29 U.S.C. § 107, andto the automatic stay in bankruptcy cases, 11 U.S.C. § 362.
There are important differences, however, between the automatic stay of(e)(2) and the statutes on which the state relies. Both the 10-day limiton TROs found in Rule 65(b) and the analogous limit in the Norris-LaGuardiaAct respond to the particular problems of ex parte proceedings. Nothingin those laws purports to restrict the power of the district court to entera preliminary injunction that preserves the status quo beyond the periodof time allowed. The automatic stay in bankruptcy also does not help thestate's case- indeed, if anything it undermines it. This is because theautomatic stay of § 362, which is triggered by the filing of a petitionin bankruptcy, see 11 U.S.C. § 362(a), has the effect of preservingthe court's equitable powers over the entirety of the bankruptcy estate,not superseding or undermining them. In essence, it freezes everything externalto the bankruptcy proceeding, including private transactions and state courtlitigation, and it has the effect of requiring other federal court proceedingsto take a back seat to the federal bankruptcy court. Furthermore, litigantsroutinely petition the bankruptcy court to modify the stay, and there isno hint that Congress did not want the court to exercise that power (asthere is with the PLRA). Allocations of power within the federal court systemare a common feature of procedural legislation, and principles of federalsupremacy account for the effect that the automatic stay has on state courtproceedings.
The automatic stay of (e)(2), in contrast, operates directly on the internaladjudication of a case in federal court. It strips from the court the authorityto decide whether the status quo (defined by the earlier decree the courtentered that required prospective relief) should be continued or modifiedpending the court's decision on the immediate termination petition. It doesso in a way that leaves the power to continue the decree entirely in thehands of the party that files the motion for termination. This is so becausethe automatic stay must take effect no later than the 90th day after thepetition is filed unless the court has issued a final order on the terminationmotion. Yet the state need only drag its feet or confront genuine difficultyin responding to requests for information that is relevant to the questionwhether the decree continues to be necessary, as defined by (b)(2) and (b)(3),in order to win its stay. Given the complexity of much prison litigation,we would be reluctant to try to address the problem of delay through satellitelitigation over whether the state was "really" acting in bad faithor not, and imposing adverse fact-findings on a state that was trying tomanipulate the process so that it won an automatic stay. We are also concernedthat such an approach would once again read too much into the statute. Section3626 constrains the authority of the district courts to impose and sustainprospective relief. It says nothing about conscripting states into thisprocess, and we see nothing in the overall tenor of § 3626 that wouldjustify superimposing on it a rule that a state risks the denial of itsmotion for termination on the merits if it does not (or cannot) comply withthe (e)(2) time limits.
We do not suggest that Congress cannot prescribe rules of practice and procedurefor the federal courts, and, contrary to the dissent's dire predictions,nothing in this opinion in any way threatens the ordinary time limits thatpervade both federal procedural rules and statutes. First, it is plain thatCongress has the power to prescribe procedural rules. See Hanna v. Plumer,380 U.S. 460, 472, 85 S. Ct. 1136, 14 L.Ed.2d 8 (1965); Sibbach v. Wilson& Co., 312 U.S. 1, 9, 61 S. Ct. 422, 85 L.Ed. 479 (1941). Many timelimits are subject to adjustment, and thus are irrelevant for present purposes.Some both define the jurisdiction of a court and establish when a judgmentis final, such as the time for filing an appeal from a final judgment, Fed.R. App. P. 4(a), (b), or the time within which a motion to correct a sentencemust be filed, Fed. R. Crim. P. 35(c). But that is not what (e)(2) does,and it is important to appreciate just how unusual a provision it is. Asthe Sixth Circuit also recognized, temporal strictures upon substantivejudicial decision making are scarce. Hadix, 144 F.3d at 943-44 n.15. Wheresuch rules and statutes tie a judicial outcome to a time restriction, thecourt usually retains discretion to override the restriction for good cause.Id. For example, the Speedy Trial Act sets forth time limits for criminaltrials, including a requirement that if the Act's deadlines are violated,the charges must be dismissed. See 18 U.S.C. § 3161; see also UnitedStates v. Brainer, 691 F.2d 691, 695-99 (4th Cir. 1982) (upholding the SpeedyTrial Act against a challenge that the Act violates the doctrine of separationof powers). Unlike § 3626(e)(2), however, the Act contains a long listof exceptions, see 18 U.S.C. § 3161(h), including a broad provisionthat authorizes judges to exclude from the time calculations "any periodof delay" upon "finding[ ] that the ends of justice served bytaking such action outweigh the best interest of the public and the defendantin a speedy trial." 18 U.S.C. § 3161(h)(8)(A). See also Fed. R.Civ. P. 60(b) (authorizing courts "upon such terms as are just"to relieve a party from a final judgment, including a judgment for prospectiverelief).
Similarly, the Antiterrorism and Effective Death Penalty Act ("AEDPA")states that "[t]he Court of Appeals shall grant or deny the authorizationto file a second or successive application [for a writ of habeas corpus]not later than 30 days after the filing of the motion." 28 U.S.C. §2244(b)(3)(D). For many of the same reasons that animate us today, however,the courts of appeals have ruled that this time limit may be modified ifthe court finds it necessary. See, e.g., In re Siggers, 132 F.3d 333, 336(6th Cir. 1997) (reading the language of § 2244(b)(3) as "hortatoryor advisory rather than mandatory," in order to avoid constitutionaldifficulties); Galtieri v. United States, 128 F.3d 33, 36-37 (2d Cir. 1997)(ruling that § 2244(b)(3) must be applied "flexibly," andconcluding that the courts should not forego "reasoned adjudication"in the small number of cases that cannot be resolved within 30 days): Inre Vial, 115 F.3d 1192, 1194 n.3 (4th Cir. 1997) (noting that the courtexceeded the 30-day limit but concluding that the importance of the issuejustified the delay). As we noted earlier, this is precisely the kind offlexibility that we believe is foreclosed to the courts under the languageof § 3626(e)(2).2
The fact that Congress can impose time limits on executive agencies is oflittle assistance here. Unlike temporal limitations on judicial decisionmaking, such constraints on agency action are prevalent throughout administrativelaw. See, e.g., 7 U.S.C. § 2a(iv)(II) (setting a 30-day time limitfor Security and Exchange Commission's review of a board of trade's applicationfor designation as a contract market). Where agencies are involved, thejudgments subject to legislative encroachment were not rendered by ArticleIII courts but by entities that the Constitution places under the controlof Congress. The distinction between those two situations motivated theCourt's ruling in Paramino Lumber Co. v. Marshall, 309 U.S. 370, 60 S. Ct.600, 84 L.Ed. 814 (1940), cited with approval in Plaut v. Spendthrift Farm,Inc., 514 U.S. 211, 232, 115 S. Ct. 1447, 131 L.Ed.2d 328 (1995), whereit upheld a private bill that reopened an administrative order, noting thatthe order was not an adjudication and therefore the legislative act didnot constitute "an excursion of Congress into the judicial function"or "affect[] judicial judgments." 309 U.S. at 381 & n. 15,60 S. Ct. 600. Last, we think there is an important difference between legislationthat affects prospective relief, and legislation that prevents the courtfrom preserving the status quo in whole or in part during the pendency ofa suit. The former is permissible, as Plaut observed, but the latter touchesupon the heart of the adjudicative process and as such is reserved for theJudicial Branch of government-a point on which we now elaborate.
The prisoners have urged that (e)(2) violates Article III and the separationof powers principle, as well as the due process clause, and thus that itmust be declared unconstitutional. Such a finding would not have any effecton the remainder of the PLRA, because Congress included an express severabilityclause in the statute. See Pub. L. No. 104-134, Title I, § 101(a),Apr. 26, 1996, 110 Stat. 1321-77, renumbered Title I, Pub.L. No. 104-140,§ 1(a), May 2, 1996, 110 Stat. 1327. We conclude, as did our colleaguesin the Sixth Circuit when they analyzed the statute according to the readingwe have adopted, that (e)(2) violates the separation of powers principlebecause it is a direct legislative suspension of a court order. See Hadix,144 F.3d at 939. Because we believe that (e)(2) represents an unconstitutionallegislative encroachment into the powers reserved to the judiciary, we donot need to reach the prisoners' due process arguments.
Under the Supreme Court's decision in Plaut, we know that Congress cannotvest review of the decisions of Article III courts in officials of the executivebranch. See 514 U.S. at 218, 115 S. Ct. 1447, citing Hayburn's Case, 2 U.S.(2 Dall.) 408, 1 L.Ed. 436 (1792), and Chicago & Southern Air Lines,Inc. v. Waterman S.S. Corp., 333 U.S. 103, 68 S. Ct. 431, 92 L.Ed. 568 (1948).The Sixth Circuit found, and we agree, that there is no principle underwhich the legislative branch should enjoy a privilege of reviewing particulardecisions of Article III courts that the executive branch does not have.See Hadix, 144 F.3d at 940. As the Supreme Court explained in Plaut, "theFramers crafted [Article III] . . . with an expressed understanding thatit gives the Federal Judiciary the power, not merely to rule on cases, butto decide them, subject to review only by superior courts in the ArticleIII hierarchy." 514 U.S. at 218-19, 115 S. Ct. 1447. Yet (e)(2) placesthe power to review judicial decisions outside of the judiciary: it is aself-executing legislative determination that a specific decree of a federalcourt-here the decree addressing conditions at Pendleton- must be set asideat least for a period of time, no matter what the equities, no matter whatthe urgency of keeping it in place. This amounts to an unconstitutionalintrusion on the power of the courts to adjudicate cases.
Unlike the Sixth Circuit, we also find that (e)(2) violates the principlearticulated in United States v. Klein, 80 U.S. (13 Wall.) 128, 20 L.Ed.519 (1871). In Klein, Congress passed a statute providing that individualswhose property was seized during the Civil War could recover the propertyby showing that they had not offered "aid or comfort" to the enemyduring the war. Klein, 80 U.S. at 131. The Supreme Court subsequently heldthat a presidential pardon was a sufficient showing that an individual wasnot a Confederate sympathizer. Reacting to this decision, Congress adoptedlegislation that required the court to consider a presidential pardon asconclusive evidence of the person's disloyalty to the United States andto dismiss appeals in cases seeking to recover the property of such persons.The Klein Court struck down this law, holding that Congress does not havethe power to impose a rule of decision for pending judicial cases, apartfrom its power to change the underlying applicable law.
Applying Klein to 18 U.S.C. § 3626(e)(2), the Sixth Circuit focusedon the broader remedial provisions of the PLRA and found that the automaticstay did not mandate a rule of decision. Hadix, 144 F.3d at 940. The PLRAsimply confined the relief that may be ordered in a prison conditions caseto measures strictly designed to address violations of federal law. Id.But, as we have been emphasizing, (e)(2) does not directly implicate thefinal decision on the merits of the (b)(2) termination motion. Instead,it addresses what should happen during the pendency of the case. For thattime period, the statute does mandate a particular rule of decision: theprospective relief must be terminated. In our view, this falls comfortablywithin the rule of Klein, and as such, it exceeds the power of the legislativebranch.
Our determination that the automatic stay provision is not enforceable doesnot mean that courts should not try to conform their conduct to it. Indeed,the contrary is true: we hold that the district courts must conform theiractions to the time limits in § 3626(e)(2) unless compelling reasonsfor setting them aside can be articulated. On an interlocutory appeal under§ 3626(e)(4), this court has the power to require either prompt actionor a stay of prospective relief by finding that a recalcitrant judge hasabused her discretion. In passing the PLRA, Congress sought to quell theperceived tendency of federal courts to micro-manage state prisons by limitingthe availability of consent decrees and other judicially-imposed prospectiverelief. See H.R. Rep. No. 21, 104th Cong., 1st Sess. 9 (1995) (noting thatfederal courts have "used these consent decrees to intrude into a statecriminal justice system and seriously undermine the ability of the localjustice system to dispense any true justice"). The PLRA accomplishesthis goal, in part, by "includ[ing] provisions that will guard againstcourt-ordered [remedies] dragging on and on, with nothing but the whimsof federal judges sustaining them." H.R. Rep. No. 21, at 8.
It may be, however, that in some cases the courts will not be able to carryout their adjudicative function in a responsible way within the time limitsimposed by (e)(2). See Hadix, 144 F.3d at 944. Given the command of thePLRA to tailor relief to the least restrictive alternative, and to takeevery step to ensure that an injunction does not stray beyond the requirementsof federal law, the district courts will have a complex task on their hands.Some decrees under review will have been the result of years of litigation,and in considering whether termination is proper under § 3626(b)(2),or whether newly tailored relief should continue under § 3626(b)(3),the court may need not only to review a massive record, but also to takenew evidence. In many other cases, like this one, the decree will be theresult of a settlement between the parties and the record may be far tooscant to make the required determinations. See generally Rufo v. Inmatesof Suffolk County Jail, 502 U.S. 367, 378, 112 S. Ct. 748, 116 L.Ed.2d 867(1992) (holding that a Fed. R. Civ. P. 60(b) motion may be used to seekmodification of a consent decree). The court will have the obligation tosupplement the record so that its final orders comply with the statute,and both sides will have the right to present argument on this point. Eventhough Congress has the power to regulate the jurisdiction of the inferiorfederal courts, Keene Corp. v. United States, 508 U.S. 200, 207, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993), citing Finley v. United States, 490 U.S.545, 548, 109 S. Ct. 2003, 104 L.Ed.2d 593 (1989), under Klein it cannottake away the power of the court in a particular case to preserve the statusquo while it ponders these weighty questions.
This conclusion makes it unnecessary for us to reach the alternate constitutionalgrounds on which the prisoners have relied. We emphasize again that ourruling is a narrow one. It does not prevent the state from asking that theprospective relief be stayed while an immediate termination motion is pending.Furthermore, in Berwanger this court has upheld the constitutionality ofthe heart of this part of the PLRA, which is the (b)(2) right to immediatetermination. Here, we hold only that 18 U.S.C. § 3626(e)(2) is unconstitutionalinsofar as it is a legislatively commanded, self-executing stay of an existingcourt order that requires remedies in a prison conditions case. The districtjudge did not abuse his discretion at the time he issued his order refusingto stay prospective relief in this case, while he considered the state'spetition for immediate termination of the decree governing the PendletonCorrectional Facility.3 On the understanding that the PLRA requires thedistrict court to take every possible measure to expedite its final rulingon the state's motion, and if need be to reconsider the propriety of aninterim stay, the order of the district court is AFFIRMED.



* This opinion is being issued in typescript. A printed copy will follow.

1 Most of the statutes cited by the dissent operate in precisely this fashion.See post at 451-53. Thus, for example, a party who wishes to be exemptedfrom the automatic stay in bankruptcy need only petition the bankruptcycourt for relief, and that court can lift the stay. Similarly, the SpeedyTrial Act contains numerous safeguards that allow a district court to modifythe time limits when good cause exists to do so. If these statutes offergood analogies to § 3626(e)(2), then logically the dissent should agreewith the position of the Sixth Circuit: the automatic stay of (e)(2) goesinto effect, but the district court is free to annul the stay on traditionalequitable grounds. As the Sixth Circuit held, under that reading there plainlywould be no constitutional flaw in the structure of the system.

2 At least one of the other examples cited by the dissent has been construedthe same way, namely, the statute governing appeals by persons incarceratedfor contempt of a grand jury, 28 U.S.C. § 1826(b), see In the Matterof a Witness Before the Special October 1981 Grand Jury, 722 F.2d 349, 353(7th Cir. 1983).

3 Although the Sixth Circuit and this panel have arrived at the same ultimateconclusion-namely, that the district courts retain the power notwithstanding§ 3626(e)(2) either to stay prospective relief pending adjudicationof a § 3626(b)(2) motion or to refuse a stay-the reasoning underlyingour respective decisions is sufficiently at odds that we have circulatedthis opinion to the full court under Circuit Rule 40(e). A majority of thejudges in regular active service did not wish to hear this case en banc.Chief Judge Posner and Circuit Judges Easterbrook and Manion voted to rehearen banc.


EASTERBROOK, Circuit Judge, with whom POSNER, Chief judge, and MANION, CircuitJudge, join, dissenting from the denial of re hearing en banc.
The panelholds an Act of Congress unconstitutional-and not some musty statute overtakenby a change of constitutional doctrine, but the flywheel of recent legislation.Moreover, the panel's approach is not supported by either the text of theConstitution or any doctrine developed by the Supreme Court, and if thepanel is right then many other important statutes and rules are unconstitutional.I agree with the panel that § 3626(e)(2) cannot bear the reading givenit by Hadix v. Johnson, 144 F.3d 925 (6th Cir. 1998). Congress set a deadline;Hadix turns it into mush. The creation of a conflict is justified. But weshould not then use constitutional grounds to knock § 3626(e)(2) outof commission. Judge Norris's separate opinion in Hadix, 144 F.3d at 950-52,rightly concludes that this statute is within Congress' power.
The Prison Litigation Reform Act substantially changes the criteria thatpermit a federal court to take over the management of a prison. Congressdirected courts to apply the new criteria to existing decrees as well asto future ones. That change properly may be applied to ongoing relief. Sowe hold today in Berwanger v. Cottey, following the lead of many other courts.See Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649 (1st Cir. 1997);Benjamin v. Jacobson, 172 F.3d 144 (2d Cir. 1999) (en banc); ImprisonedCitizens Union v. Ridge, 169 F.3d 178 (3d Cir. 1999); Plyler v. Moore, 100F.3d 365 (4th Cir. 1996); Hadix v. Johnson, 133 F.3d 940 (6th Cir. 1998);Gavin v. Branstad, 122 F.3d 1081 (8th Cir. 1997); Dougan v. Singletary,129 F.3d 1424 (11th Cir. 1997). The only contrary appellate decision, Taylorv. United States, 143 F.3d 1178 (9th Cir. 1998), has been withdrawn on thegrant of rehearing en banc, 158 F.3d 1059 (9th Cir. 1998).
Many judges are reluctant to undo their own handiwork and may share theview of the district judge in Pasadena City Board of Education v. Spangler,427 U.S. 424, 433, 96 S. Ct. 2697, 49 L.Ed.2d 599 (1976), that relief shouldcontinue for the judge's lifetime. Congress therefore designed a mechanismto ensure the application of the new rules to the stock of existing decrees-and to facilitate reexamination even of post-PLRA orders, so that stateand local governments may regain control of their institutions once an injunctionhas achieved its purpose of correcting violations of federal law. See, e.g.,Missouri v. Jenkins, 515 U.S. 70, 102, 115 S. Ct. 2038, 132 L.Ed.2d 63 (1995);People Who Care v. Rockford Board of Education, 171 F.3d 1083, 1090-91 (7thCir. 1999).
Once a year has passed since the last time the judge addressed the subject(or two years since the decree's entry or the PLRA's enactment) any partymay file a motion to terminate relief. 18 U.S.C. § 3626(b)(1). Thedecree then must be terminated, § 3626(b)(2), unless the judge determines"that prospective relief remains necessary to correct a current andongoing violation of the Federal right, extends no further than necessaryto correct the violation of the Federal right, and that the prospectiverelief is narrowly drawn and the least intrusive means to correct the violation."18 U.S.C. § 3626(b)(3). Deadlines are essential lest these rules provenugatory, so § 3626(e)(1) requires the court to decide "promptly",and § 3626(e)(2) quantifies "prompt" as within 30 days, witha possible extension to 90 under § 3626(e)(3). Subsection (e)(2) callsfor a stay rather than termination of the decree. Like the automatic stayin bankruptcy law, 11 U.S.C. § 362, subsection (e)(2) does not cancelany judicial decision; it simply stays its effectiveness until the judgerenders a decision on the merits. Subsection (e)(2) thus gives the judgea reason to rule promptly. Our case shows the need for such an incentive.Having declared subsection (e)(2) to be unconstitutional, the district judgeproceeded to ignore subsection (e)(1). Defendants sought termination ofthe decree by a motion in June 1997. Almost two years have passed, but thedistrict judge has yet to take a single step toward acting on this request-andthe last word of the panel's opinion is "affirmed." A processthat is supposed to be rapid drags on with no end in sight.
According to the panel, subsection (e)(2) is unconstitutional because it"operates directly on the internal adjudication of a case in federalcourt." Maj. op. 444. This is not an accurate description of the statute.Although subsection (e)(1) tells courts how to behave ("promptly rule"),subsection (e)(2) does not. Like the automatic stay in bankruptcy, thisstatute tells the parties whether they can take advantage of a judgment;it does not tell judges when, how, or what to do, but specifies what happensif the judge does not act. If 30 days pass without action, prospective reliefis automatically stayed. The judge can devote his time to the criminal docketor whatever he deems more pressing than prison-reform litigation. But evenif we understand § 3626(e)(2) as affecting the court's allocation oftime (which it will do indirectly; that's its point), why is this a constitutionalproblem?
Article III establishes three safeguards of judicial independence: tenureof office, protection against financial penalties, and the rule (an implicationof establishing a "judicial Power") that final judgments mustbe carried out. See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995). An automatic stay following 30 days ofjudicial inaction does not undermine any of these. The judge is 100% incharge. Stays do not conflict with tenure, salary protection, or respectfor judgments. Bankruptcy practice shows this; often the principal reasonfor filing is to suspend the effectiveness of a judgment (such as a judgmentof foreclosure and sale) pending further decision. Consider, too, Fed. R.Civ. P. 65(b), which limits a temporary restraining order to 10 days (witha single extension to 20). Just as subsection (e)(2) causes an injunctionto lapse unless the judge makes findings within 30 (or 90) days, so Rule65(b) causes an injunction to lapse unless the judge makes findings within10 (or 20) days. No one thinks that Rule 65(b) is an unconstitutional intrusionon the way judges manage their business; instead it protects defendantsagainst unwarranted judicial interference. Just so with § 3626(e)(2):It ensures that state and local governments are not burdened by federalcontrol of their institutions for longer than is necessary.
My colleagues on the panel treat Rule 65(b) as justified by the need tolimit ex parte orders, and this is indeed good support for the rule-butsupport that is unrelated to Article III. It mixes up distinct issues todistinguish Rule 65(b) from § 3626(e)(2) by pointing to the rightsof litigants. If Congress should provide that injunctions in prison litigationexpire five minutes after the court receives a motion, this would indeedbe unconstitutional, but not because of anything in Article III. The problemwith my hypothetical statute would be the due process clause, which entitleslitigants to a meaningful opportunity to be heard before a final decision.Section 3626(e)(2) is not problematic under the due process clause. A stayis not a final decision (it is more like a TRO, which may issue ex parte),and 30 days is adequate for the litigants to be heard (just as the 20-daywindow under Rule 65 affords time for a hearing). The panel's concern aboutdefendants who drag their heels in an effort to prevent the judge from reachinga decision (maj. op. 444) has nothing to do with Article III and the court'sinternal operations, and everything to do with the due process rights ofthe litigants. The possibility of foot-dragging under § 3626(e)(2)is less serious than under Rule 65(b), for a defendant's barricade of theplaintiff's access to information would be "good cause" to postponethe automatic stay until 90 days under subsection (e)(3), and this extratime makes the tactic less likely to succeed than when the defendant needstall for only 20 days. Courts can foil delaying maneuvers by imposing sanctionson parties that fail to cooperate in discovery, see Fed. R. Civ .P. 37,and by drawing adverse inferences about missing evidence. The inferencethen could support a finding under § 3626(b)(3). None of this, however,has anything to do with Article III or the separation of powers.
Someone who thinks that the PLRA is an intrusion on the powers of the judiciaryshould point not to § 3626(e)(2), which just goads judges to get amove on, but to § 3626(b)(2), which calls for the "immediate termination"of injunctive relief on motion of a party. Yet we hold in Berwanger-andthe panel in French agrees, maj. op. 441-that subsection (b)(2) is constitutional,for Congress may require courts to revisit prospective relief when it changesgenerally applicable rules of law. See Robertson v. Seattle Audubon Society,503 U.S. 429, 112 S. Ct. 1407, 118 L.Ed.2d 73 (1992); Rufo v. Inmates ofSuffolk County Jail, 502 U.S. 367, 112 S. Ct. 748, 116 L.Ed.2d 867 (1992);System Federation No. 91 v. Wright, 364 U.S. 642, 81 S. Ct. 368, 5 L.Ed.2d349 (1961). The PLRA creates new substantive requirements, and the legislaturemay require all ongoing relief-whether based on pre-PLRA or post-PLRA decrees-toconform. If subsection (b)(2) is constitutional, then Congress must be entitledto require its effective implementation, which is all subsection (e)(2)does.
Federal judges have no constitutional power to frustrate through delay theimplementation of valid legislation. I am not aware of any decision by theSupreme Court holding, or even suggesting, that statutes requiring judgesto adjudicate with dispatch pose constitutional problems. Many laws, ofunquestioned validity, require the President and his subordinates to meetdeadlines for action; the Judicial Branch has no more freedom from timepressure than does the Executive Branch. If the separation of powers protectsjudges from time limits, it protects the President too. The panel is unwillingto extend any such protection to the President; hundreds if not thousandsof laws would be swept away. But as a matter of constitutional languageand structure, the Judicial and Executive Branches are identically situatedwith respect to deadlines that affect the sequence in which they handlebusiness.
If there is a constitutionally based right of independence in the administrationof judicial business, it invalidates 28 U.S.C. §§ 144 and 455,which prescribe judicial conduct much more directly than does § 3626(e)(2).Until 1911, when § 144 was enacted, rules of disqualification werebased on the common law. A formal Code of Conduct for United States Judgeswas first adopted in 1973. Not until 1974 was there any requirement thatfederal judges refrain from sitting when their impartiality might reasonablybe questioned. 28 U.S.C. § 455(a). Thoroughgoing application of thepanel's approach would annul these statutes and return all ethical standardsto judicial hands. But if a legislature has the constitutional authorityto strip judges of the power to render decisions at all (and this is what§ 144 and § 455 do), it has the authority to tell judges to devotepriority attention to cases that the legislature deems vital. Statutes specifyingprocedures for adjudication have been with us since the beginning of therepublic (see Act of Sept. 24, 1789, ch. 20, 1 Stat. 73, 83; Act of Sept.29, 1789, ch. 21, 1 Stat. 93), something one cannot say about statutoryethics rules. But if the process of adjudication really is independent oflegislative control, all procedural rules predating the Rules Enabling Actof 1936-and all statutes overriding rules promulgated by judges under thatlaw-must be unconstitutional too.
Interference with judges' allocation of time is only one of the panel'sobjections to § 3626(e)(2). The other rests on United States v. Klein,80 U.S. (13 Wall.) 128, 20 L.Ed. 519 (1871), which the panel reads as establishingthe principle that "Congress does not have the power to impose a ruleof decision for pending judicial cases, apart from its power to change theunderlying applicable law." Maj. op. 446. Whether Klein stands forthis proposition is an interesting question, see Seattle Audubon Society,503 U.S. at 441, 112 S. Ct. 1407, but not one we need consider. Subsection(e)(2) does not establish any "rule of decision for pending judicialcases"; the rule of decision comes from § 3626(b)(3), a statutethat assuredly makes a "change [in] the underlying applicable law."Many judgments governing prison conditions are based on the parties' consent,which may be unrelated to the requirements of federal law. See FirefightersLocal 93 v. City of Cleveland, 478 U.S. 501, 522, 106 S.Ct. 3063, 92 L.Ed.2d405 (1986): "it is the agreement of the parties, rather than the forceof the law upon which the complaint was originally based, that creates theobligations embodied in a consent decree." Some decrees depend on amixture of state and federal obligations. But after § 3626(b)(3) prospectiverelief is limited strictly to enforcing the requirements of federal law,and the relief must be the minimum necessary to vindicate the federal right.That is a substantial change. All § 3626(e)(2) does is stay a decree'seffectiveness until the court completes the task of applying the new ruleof law. An automatic stay pending final decision no more violates the principleof Klein than does the automatic stay in bankruptcy law, or the automatictermination of a TRO under Rule 65(b). Section 3626(e)(2) requires courtsto depart from the approach they take when revisiting other decrees, but"Congress may intervene and guide or control the exercise of the courts'discretion". Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982) (emphasis added).
If § 3626(e)(2) is unconstitutional, then a long list of statutes isin jeopardy. I have mentioned a few-the automatic stay in bankruptcy, rulesfor judicial disqualification, Fed. R. Civ. P. 65(b)-but there are more.Here are some members of the endangered species.
1. The Bankruptcy Code provides for an automatic stay of all legal claims,including the enforcement of judgments, 11 U.S.C. § 362(a)(2), againstthe debtor. The stay lasts until a judge comes to a conclusion about thesubject, just as with § 3626(e)(2). But while, under § 3626(e)(2),the judge has 30 or 90 days to act before the stay takes effect, under §362 the judge has zero days. So if § 3626(e)(2) violates Article IIIby giving the judge too little time-and Klein, by staying a judgment withoutan intervening change of substantive law-then § 362 is worse on bothcounts. (Section 362 also is like § 3626(e)(2) because it does notrequire the judge to act; it just deprives a litigant of a judgment's benefitsuntil the judge does act.) One can't logically distinguish § 362 bysaying that Congress has special powers over bankruptcy or that the automaticstay helps to coordinate the handling of claims. The bankruptcy power isno different from § 5 of the 14th Amendment, which undergirds §3626. Legislative powers are pertinent to the question whether Congressmay alter private rights; they are not pertinent to the question whetherArticle III contains a judicial immunity from time limits, or prevents judgmentsfrom being subject to stay. Buckley v. Valeo, 424 U.S. 1, 132-37, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), and its successors reject any argument thatCongress' "special competence" over such- and-such a subject enablesit to enact a law that violates the separation of powers. That a statuteis a sensible way to deal with a problem does not save it against a separation-of-powerschallenge. See INS v. Chadha, 462 U.S. 919, 944, 103 S. Ct. 2764, 77 L.Ed.2d317 (1983); Bowsher v. Synar, 478 U.S. 714, 722, 736 106 S. Ct. 3181, 92L.Ed.2d 583 (1986).
2. The Speedy Trial Act requires the court to try the defendant within 70days or dismiss the indictment. 18 U.S.C. §§ 3161, 3162(a)(2).This statute, like § 3626(e)(2), does not require the court to act,but establishes the consequence of delay. Although courts can grant extensionsof the 70-day period, this can't matter to the constitutional analysis.My colleagues' objection to § 3626(e)(2) is not that the time is tooshort-a claim that could not be reconciled with Rule 65(b)-but that it establishesa deadline. Any other deadline would be equally offensive to the separationof powers. When the fourth circuit sustained the Speedy Trial Act againstan attack based on Article III, it rejected the interpretation of Kleinthat our panel embraces. United States v. Brainer, 691 F.2d 691, 695-96(4th Cir. 1982).
3. Appeals by persons incarcerated for contempt of a grand jury must bedecided within 30 days. 28 U.S.C. § 1826(b). This statute operatesdirectly on the judge rather than on the litigants.
4. The court of appeals must grant or deny, within 30 days, an applicationfor leave to commence a second or successive collateral attack. 28 U.S.C.§§ 2244(b)(3)(D).
5. Chapter 154 of the Judicial Code (added by the AEDPA) sets multiple timelimits in capital cases. 28 U.S.C. § 2266(b). These are binding ratherthan hortatory. Section 2266(b)(4)(B) says that a state may "enforce"these limits by mandamus, and that the court of appeals "shall acton the petition for a writ of mandamus not later than 30 days after thefiling of the petition."
6. Pretrial detention following arrest can't exceed 10 days unless the courtmakes specified findings. 18 U.S.C. § 3142(d). This is almost completelyparallel to § 3626(e)(2)-and it won't do to distinguish the two bysaying that § 3142(d) protects the right of suspects to liberty. Thatwould be irrelevant to the independence of the judiciary under Article III,the fulcrum of the panel's opinion, and is at all events no distinction:§ 3626(e)(2) protects the rights of states to be free from unwarrantedinjunctions of indefinite duration.
7. The criminal rules contain many time limits: Rule 35(c) caps at 7 daysthe time to correct an error in a sentence (note that this is an outer limitfor judicial action, not for a party to make a motion); Rule 29(c) givesa judge only 7 days to entertain (or extend the time to make) a motion foracquittal, and this time can't be further extended. Carlisle v. United States,517 U.S. 416, 116 S. Ct. 1460, 134 L.Ed.2d 613 (1996). See also Rules 33and 34-more time limits that apply to judges, not just counsel. Rule 45(b)forbids the enlargement of time specified by "Rules 29, 33, 34 and35, except to the extent and under the conditions stated in them."The district judge in Carlisle treated the 7-day time limit for action inRule 29(c) as advisory; the Supreme Court disagreed; but if our panel isright, then Carlisle is not only wrong but also unconstitutional, for ifthe judge fails to act within 7 days defendants may lose valuable rights(and in Carlisle did lose a valuable right-an acquittal!).
8. Former Fed. R. Crim. P. 35 set a limit of 120 days for action on motionsto reduce sentence, and strict enforcement of this limit was endorsed byUnited States v. Addonizio, 442 U.S. 178, 99 S. Ct. 2235, 60 L.Ed.2d 805(1979). In United States v. Kimberlin, 776 F.2d 1344 (7th Cir. 1985), andGaertner v. United States, 763 F.2d 787 (7th Cir. 1985), we held that thistime limit was "jurisdictional" and thus prevailed even when theprisoner's motion was timely and only the judge's delay deprived the defendantof an opportunity for a lower sentence. If the panel is right, then Addonizio,Kimberlin, and Gaertner are not only wrong but also unconstitutional.
9. After a defendant is found not guilty by reason of insanity, the judgemust hold within 40 days a hearing to determine whether the person is stillinsane and therefore subject to continuing commitment. 18 U.S.C. §4243(c).
10. Fed. R. Civ. P. 65(b) sets 10-and-20 day limits for temporary restrainingorders. The Norris-LaGuardia Act, 29 U.S.C. § 107, has a 5-day limit.These time limits force the judiciary to hold hearings and make prompt decisions,else orders expire, in the same way as does § 3626(e)(2).
My colleagues' response is that these time limits either have escape hatchesdespite their absolute language-a response at war with the panel's conclusionthat § 3626(e)(2) does not permit departure on equitable grounds, andwith the Supreme Court's approach to time limits in Carlisle and Addonizio-orare unconstitutional themselves. Either way, the scope of the panel's decisionis breathtaking. As a practical matter, all of these statutes are gutted.They go by the boards not because of either the Constitution's text or anycontrolling decision of the Supreme Court, but because the panel has inventeda right of the judicial branch to freedom from deadlines. If this does notmeet the standard for en banc review, I don't know what does.




APPENDIX B


UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA INDIANAPOLISDIVISION

No. IP 75-677-C
RICHARD A. FRENCH, ET AL., PLAINTIFFS

v.

JACK DUCKWORTH, ET AL., DEFENDANTS

[Filed: July 11, 1997]

ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

On June 30, 1997, Plaintiffs filed their Motion for a Temporary RestrainingOrder or a Preliminary Injunction to Stay the Automatic Termination Provisionof the Prison Litigation Reform Act. At 2:30 p.m., on July 3, 1997, theCourt granted Plaintiffs a Temporary Restraining Order. On July 10, 1997,the Court held a hearing on Plaintiffs' request for preliminary injunction.
For the reasons stated in the Court's order of July 3, 1997, the Plaintiffs'motion and presentation at the hearing, and for the principal reason thatthe Court believes that 18 U.S.C. § 3626(b)(2) is clearly unconstitutionalas found by other courts, and for that reason that Plaintiffs are likelyto succeed on the merits and Defendants would not be harmed by the entryof the preliminary injunction, the Temporary Restraining Order of July 3,1997, is now converted to a preliminary injunction.
Accordingly, there shall be no stay of prospective relief in this matterand the parties shall continue to comply with this Court's prior ordersand judgments until further order of the Court.
So Ordered.

/s/ S. HUGH DILLIN 7-11-97

S. HUGH DILLIN, Judge



APPENDIX C


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

No. IP 75-677-C
RICHARD A. FRENCH, ET AL., PLAINTIFFS

vs.

JACK DUCKWORTH, ET AL., DEFENDANTS

[Filed: July 3, 1997]

TEMPORARY RESTRAINING ORDER

This matter came before the Court on consideration of the plaintiffs' motionfor a temporary restraining order and a preliminary injunction and briefin support of motion for a temporary restraining order and a preliminaryinjunction.
Whereupon the Court, having considered the matter and being duly advisedin the premises, now finds that a Temporary Restraining Order should, anddoes issue pursuant to 18 U.S.C. § 1345.
The irreparable harm necessary is established in light of the statutorybasis for the issuance of a temporary restraining order under the showingmade by the plaintiffs.
THEREFORE, at 2:00 p.m., on this 3rd day of July, 1997, this Court issuesa Temporary Restraining Order enjoining and prohibiting the automatic terminationprovision of the Prison Litigation Reform Act from taking effect.
This Temporary Restraining Order will expire at 2:00 p.m., on the 13th dayof July, 1997 and a hearing on the motion for preliminary injunction isset for the 10th day of July, 1997 at 10:30 a.m., in Room 243 of the UnitedStates Courthouse, 46 East Ohio Street, Indianapolis, Indiana.
IT IS SO ORDERED.

/s/ S. HUGH DILLIN 7-3-97

S. HUGH DILLIN, Judge

Copies to:
Hamid R. Kashani
Suite 600
445 North Pennsylvania Street
Indianapolis, Indiana, 46204-1806
Kenneth J. Falk
Indiana Civil Liberties Union
1031 East Washington Street
Indianapolis, Indiana, 46202-3952
David A. Arthur
Office of the Indiana Attorney General
Fifth Floor
Indiana Government Center South
402 West Washington Street
Indianapolis, Indiana, 46204-2770



APPENDIX D

18 U.S.C. 3626 provides in relevant part:

Appropriate remedies with respect to prison conditions
(a) REQUIREMENTS FOR RELIEF.-
(1) PROSPECTIVE RELIEF.-(A) Prospective relief in any civil action withrespect to prison conditions shall extend no further than necessary to correctthe violation of the Federal right of a particular plaintiff or plaintiffs.The court shall not grant or approve any prospective relief unless the courtfinds that such relief is narrowly drawn, extends no further than necessaryto correct the violation of the Federal right, and is the least intrusivemeans necessary to correct the violation of the Federal right. The courtshall give substantial weight to any adverse impact on public safety orthe operation of a criminal justice system caused by the relief.
* * * * *
(2) PRELIMINARY INJUNCTIVE RELIEF.-In any civil action with respect to prisonconditions, to the extent otherwise authorized by law, the court may entera temporary restraining order or an order for preliminary injunctive relief.Preliminary injunctive relief must be narrowly drawn, extend no furtherthan necessary to correct the harm the court finds requires preliminaryrelief, and be the least intrusive means necessary to correct that harm.The court shall give substantial weight to any adverse impact on publicsafety or the operation of a criminal justice system caused by the preliminaryrelief and shall respect the principles of comity set out in paragraph (1)(B)in tailoring any preliminary relief. Preliminary injunctive relief shallautomatically expire on the date that is 90 days after its entry, unlessthe court makes the findings required under subsection (a)(1) for the entryof prospective relief and makes the order final before the expiration ofthe 90-day period.
* * * * *
(b) TERMINATION OF RELIEF.-
(1) TERMINATION OF PROSPECTIVE RELIEF.-(A) In any civil action with respectto prison conditions in which prospective relief is ordered, such reliefshall be terminable upon the motion of any party or intervener-
(i) 2 years after the date the court granted or approved the prospectiverelief;
(ii) 1 year after the date the court has entered an order denying terminationof prospective relief under this paragraph; or
(iii) in the case of an order issued on or before the date of enactmentof the Prison Litigation Reform Act, 2 years after such date of enactment.
(B) Nothing in this section shall prevent the parties from agreeing to terminateor modify relief before the relief is terminated under subparagraph (A).
(2) IMMEDIATE TERMINATION OF PROSPECTIVE RELIEF.-In any civil action withrespect to prison conditions, a defendant or intervener shall be entitledto the immediate termination of any prospective relief if the relief wasapproved or granted in the absence of a finding by the court that the reliefis narrowly drawn, extends no further than necessary to correct the violationof the Federal right, and is the least intrusive means necessary to correctthe violation of the Federal right.
(3) LIMITATION.-Prospective relief shall not terminate if the court makeswritten findings based on the record that prospective relief remains necessaryto correct a current and ongoing violation of the Federal right, extendsno further than necessary to correct the violation of the Federal right,and that the prospective relief is narrowly drawn and the least intrusivemeans to correct the violation.
(4) TERMINATION OR MODIFICATION OF RELIEF.- Nothing in this section shallprevent any party or intervener from seeking modification or terminationbefore the relief is terminable under paragraph (1) or (2), to the extentthat modification or termination would otherwise be legally permissible.
* * * * *
(c) SETTLEMENTS.-
(1) CONSENT DECREES.-In any civil action with respect to prison conditions,the court shall not enter or approve a consent decree unless it complieswith the limitations on relief set forth in subsection (a).
(2) PRIVATE SETTLEMENT AGREEMENTS.-(A) Nothing in this section shall precludeparties from entering into a private settlement agreement that does notcomply with the limitations on relief set forth in subsection (a), if theterms of that agreement are not subject to court enforcement other thanthe reinstatement of the civil proceeding that the agreement settled.
(B) Nothing in this section shall preclude any party claiming that a privatesettlement agreement has been breached from seeking in State court any remedyavailable under State law.
(d) STATE LAW REMEDIES.-The limitations on remedies in this section shallnot apply to relief entered by a State court based solely upon claims arisingunder State law.
(e) PROCEDURE FOR MOTIONS AFFECTING PROSPECTIVE RELIEF.-
(1) GENERALLY.-The court shall promptly rule on any motion to modify orterminate prospective relief in a civil action with respect to prison conditions.Mandamus shall lie to remedy any failure to issue a prompt ruling on sucha motion.
(2) AUTOMATIC STAY.-Any motion to modify or terminate prospective reliefmade under subsection (b) shall operate as a stay during the period-
(A)(i) beginning on the 30th day after such motion is filed, in the caseof a motion made under paragraph (1) or (2) of subsection (b); or
(ii) beginning on the 180th day after such motion is filed, in the caseof a motion made under any other law; and
(B) ending on the date the court enters a final order ruling on the motion.
(3) POSTPONEMENT OF AUTOMATIC STAY.-The court may postpone the effectivedate of an automatic stay specified in subsection (e)(2)(A) for not morethan 60 days for good cause. No postponement shall be permissible becauseof general congestion of the court's calendar.
(4) ORDER BLOCKING THE AUTOMATIC STAY.-Any order staying, suspending, delaying,or barring the operation of the automatic stay described in paragraph (2)(other than an order to postpone the effective date of the automatic stayunder paragraph (3)) shall be treated as an order refusing to dissolve ormodify an injunction and shall be appealable pursuant to section 1292(a)(1)of title 28, United States Code, regardless of how the order is styled orwhether the order is termed a preliminary or a final ruling.
* * * * *
(g) DEFINITIONS.-As used in this section-
(1) the term "consent decree" means any relief entered by thecourt that is based in whole or in part upon the consent or acquiescenceof the parties but does not include private settlements;
(2) the term "civil action with respect to prison conditions"means any civil proceeding arising under Federal law with respect to theconditions of confinement or the effects of actions by government officialson the lives of persons confined in prison, but does not include habeascorpus proceedings challenging the fact or duration of confinement in prison;
(3) the term "prisoner" means any person subject to incarceration,detention, or admission to any facility who is accused of, convicted of,sentenced for, or adjudicated delinquent for, violations of criminal lawor the terms and conditions of parole, probation, pretrial release, or diversionaryprogram;
* * * * *
(5) the term "prison" means any Federal, State, or local facilitythat incarcerates or detains juveniles or adults accused of, convicted of,sentenced for, or adjudicated delinquent for, violations of criminal law;
(6) the term "private settlement agreement" means an agreemententered into among the parties that is not subject to judicial enforcementother than the reinstatement of the civil proceeding that the agreementsettled;
(7) the term "prospective relief" means all relief other thancompensatory monetary damages;
* * * * *
(9) the term "relief" means all relief in any form that may begranted or approved by the court, and includes consent decrees but doesnot include private settlement agreements.

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