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.

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

REPLY BRIEF FOR THE PETITIONER

SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217





In the Supreme Court of the United States

No. 99-582
UNITED STATES OF AMERICA, PETITIONER

v.

RICHARD A. FRENCH, ET AL.

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



REPLY BRIEF FOR THE PETITIONER





1. Respondents contend that review is unwarranted in this case. Respondentsacknowledge (Br. in Opp. 7-10), however, that the court of appeals squarelyheld that the automatic stay provision of the Prison Litigation Reform Actof 1995 (PLRA), 18 U.S.C. 3626(e) (Supp. IV 1998), is unconstitutional.This Court's review is warranted for that reason alone. See United Statesv. Gainey, 380 U.S. 63, 65 (1965).

2. Review is also warranted because there is a conflict in the circuitsconcerning the correct interpretation of the automatic stay provision. TheFifth and Sixth Circuits have held that the automatic stay provision doesnot divest a district court of authority to suspend the automatic stay whenthe party opposing an immediate termination motion can satisfy the traditionalstandards for obtaining interim equitable relief. Ruiz v. Johnson, 178 F.3d385, 395 (5th Cir. 1999); Hadix v. Johnson, 144 F.3d 925, 937, 945 (6thCir. 1998). In contrast, the court below held that the automatic stay provisionspecifies that, after the statutory postponement period ends, a decree "mustbe set aside at least for a period of time, no matter what the equities,no matter what the urgency of keeping it in place." Pet. App. 19a.
Respondents concede (Br. in Opp. 4-5) that the decision below conflictswith the decisions in Ruiz and Hadix. In their view, however, the conflictis only theoretical, because the decision below permits prison officialsto seek an interim stay of the decree pending resolution of an immediatetermination motion.
Under the Fifth and Sixth Circuits' decisions, however, if an immediatetermination motion is not resolved within 90 days, the statutory stay automaticallygoes into effect unless those opposing the immediate termination motioncan show that the automatic stay should be suspended under traditional equitablestandards. That means that, in order to avoid an automatic stay, those opposingthe stay must ordinarily show that an automatic stay of the existing remedialorder will cause them irreparable injury and that they are likely to defeatthe immediate termination motion. Doran v. Salem Inn, Inc., 422 U.S. 922,931 (1975). In contrast, under the decision below, if the immediate terminationmotion is not resolved within 90 days, the relief contained in a court-ordereddecree will remain in effect unless prison officials can establish a basisfor suspending the existing relief in the decree under traditional equitablestandards. In particular, in order to obtain a stay of the decree, prisonofficials would have to show that the decree is causing them irreparableinjury and that they are likely to prevail on the merits of their terminationmotion. Even then, a court may deny interim relief if it concludes thatother equitable factors justify leaving the decree in effect pending a resolutionof the motion. See Yakus v. United States, 321 U.S. 414, 440 (1944).
Because a party seeking interim equitable relief has the burden of makinga threshold showing of irreparable injury and probability of success, andbecause a court has discretion to deny interim relief even when such a showingis made, the question whether those seeking termination of a decree or thoseopposing it have the burden of demonstrating that interim equitable reliefis warranted can have significant practical consequences. Indeed, it isprecisely that difference that is reflected in the automatic stay provision.Absent the enactment of the automatic stay provision, prison officials wouldhave the burden of justifying interim equitable relief. The automatic stayprovision effectively shifts the burden to those opposing a terminationof relief to establish a basis for interim equitable relief. The conflictbetween the decision below and the decisions in Ruiz and Hadix thereforewarrants review.

3. Respondents also argue (Br. in Opp. 5-7) that the decision below doesnot impair the purposes of the automatic stay provision, because the courtbelow stated (Pet. App. 21a) that "district courts must conform theiractions to the time limits in § 3626(e)(2) unless compelling reasonsfor setting them aside can be articulated." That argument is unpersuasivefor two reasons.
First, the rule announced by the court below is quite different from theregime that Congress sought to impose. Under the court of appeals' rule,if the district court does not resolve the case within 90 days, the resultis to leave the decree in place at least for the duration of an appeal bystate officials, and until the case is resolved if the court articulatesa compelling reason for the delay. Under the statute, by contrast, the presumptiveresult of delay is for the statutory stay to take immediate effect; thedecree remains in place only if the court finds traditional equitable groundsfor suspending the stay.
Second, even assuming the court of appeals' rule is identical in substanceto the rule Congress sought to impose, the court below failed to provideany rationale for its holding that a court must comply with the statutorytime limit unless it has a compelling reason for setting it aside. If anAct of Congress is constitutional, a court must comply with its terms, regardlessof how strong the court's reasons are for setting them aside. If, on theother hand, a statute is unconstitutional, a court would not need any reason,much less a compelling reason, for failing to comply with its mandate. Thecourt of appeals therefore had no authority to declare the automatic stayprovision unconstitutional, and then direct lower courts to follow its mandateunless they have compelling reasons for setting it aside. See Reno v. ACLU,521 U.S. 844, 882-884 (1997) (after declaring a statute unconstitutional,a court may leave intact textually severable provisions and may impose alimiting construction when the statute is readily susceptible to such aconstruction, but it may not rewrite the law to conform to constitutionalrequirements).

4. Finally, respondents contend (Br. in Opp. 7-10) that the court of appealscorrectly held that, if the automatic stay provision strips federal courtsof authority to issue interim equitable relief, it is unconstitutional.The cases cited by petitioner demonstrate that, if the statute were interpretedto foreclose a court from suspending the automatic stay under traditionalequitable standards, it would raise a serious constitutional question. Butthat is simply another reason that the court of appeals should have interpretedthe statute not to foreclose a court from issuing such interim relief. Thecourt of appeals' failure to interpret the statute in a way that would haveavoided a serious constitutional question warrants this Court's review.
* * * * *
For the reasons discussed above as well as those set forth in our petition,the petition for a writ of certiorari should be granted.

SETH P. WAXMAN
Solicitor General

NOVEMBER 1999

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