No. 98-2042
In the Supreme Court of the United States
JAMES BENJAMIN, ET AL., PETITIONERS
v.
BERNARD KERIK, COMMISSIONER, NEW YORK CITY
DEPARTMENT OF CORRECTION, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney
General
BARBARA L. HERWIG
ROBERT M. LOEB
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the immediate termination provision of the Prison Litigation Reform
Act of 1995, 18 U.S.C. 3626(b) (Supp. III 1997), violates separation-of-powers
principles, deprives petitioners of vested property rights without due process
of law, or denies petitioners the equal protection of the laws.
In the Supreme Court of the United States
No. 98-2042
JAMES BENJAMIN, ET AL., PETITIONERS
v.
BERNARD KERIK, COMMISSIONER, NEW YORK CITY
DEPARTMENT OF CORRECTION, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The en banc opinion of the court of appeals (Pet. App. 1a-98a) is reported
at 172 F.3d 144. The panel opinion of the court of appeals (Pet. App. 101a-139a)
is reported at 124 F.3d 162. The opinion of the district court (Pet. App.
140a-184a) is reported at 935 F. Supp. 332.
JURISDICTION
The judgment of the court of appeals was entered on March 23, 1999. The
petition for a writ of certiorari was filed on June 21, 1999. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. In the mid-1970s, pre-trial detainees in the New York City jails brought
seven class actions challenging the constitutionality of their conditions
of confinement. Pet. App. 7a. The seven class actions were resolved through
consent decrees entered in 1978 and 1979. Id. at 6a-7a.
In 1996, the Prison Litigation Reform Act of 1995 (PLRA), Pub. L. No. 104-134,
Tit. VIII, §§ 801-810, 110 Stat. 1321-66 to 1321-77, became effective.
Under the PLRA, prospective relief in prison conditions cases "shall
extend no further than necessary to correct the violation of the 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
that does not conform to that standard. It specifies that "[i]n any
civil action with respect to prison conditions, a defendant or intervener
shall be entitled to the immediate termination of any prospective relief
if the relief was approved or granted in the absence of a finding by the
court that the relief is narrowly drawn, extends no further than necessary
to correct the violation of the Federal right, and is the least intrusive
means necessary to correct the violation of the Federal right." 18
U.S.C. 3626(b)(2) (Supp. III 1997). Relief may nonetheless be continued
if the court makes written findings based on the record that "prospective
relief remains necessary to [remedy] a current and ongoing violation of
the Federal right, extends no further than necessary to correct the violation
of the Federal right, and that the prospective relief is narrowly drawn
and the least intrusive means to correct the violation." Department
of Justice Appropriations Act, 1998, Pub. L. No. 105-119, Tit. I, §
123(a)(2), 111 Stat. 2470, amending 18 U.S.C. 3626(b)(3) (Supp. II 1996).
A party may seek termination of prospective relief under Section 3626(b)
even if the relief "was originally granted or approved before * * *
the date of the [PLRA's] enactment." PLRA, § 802(b)(1), 110 Stat.
1321-70 (18 U.S.C. 3626 note (Supp. III 1997)).*
After the PLRA became effective, the New York City Department of Corrections
and its Commissioner moved to terminate the consent decrees, on the ground
that they had been entered without the findings required by the PLRA. Pet.
App. 10a. Petitioners opposed the motion to terminate, contending that the
PLRA's termination provisions violate Article III and deny due process and
equal protection of the laws. Ibid. Petitioners also requested an opportunity
to show that the relief in the decrees remains necessary to remedy a constitutional
violation. Ibid. The United States intervened to defend the constitutionality
of the PLRA. Id. at 11a. The district court rejected petitioners' constitutional
arguments and vacated the consent decrees. Id. 140a-184a. The court also
denied petitioners' request for an opportunity to show that the relief in
the decrees remains necessary to remedy a constitutional violation. Id.
at 12a.
2. A panel of the court of appeals affirmed in part and reversed in part.
Pet. App. 101a-139a. The panel interpreted the PLRA to prevent federal enforcement
of consent decrees that do not conform to its standards, but not to require
termination of the decrees themselves. The panel therefore concluded that,
"while the defendants may be entitled to immediate termination of prospective
relief from the federal courts, there is nothing to prevent the plaintiffs
from seeking the enforcement of the Consent Decrees in state courts."
Id. at 103a. The court believed that its interpretation of the PLRA was
necessary to avoid serious constitutional questions. Id. at 116a, 121a-122a,
125a.
3. On rehearing en banc, the court of appeals affirmed the district court's
decision insofar as it upheld the constitutionality of the immediate termination
provision, and reversed the district court's decision insofar as it vacated
the consent decrees. Pet. App. 1a-98a. Disagreeing with the panel, the en
banc court first held that the PLRA mandates termination of consent decrees
that do not conform to the PLRA's standards, not just the termination of
federal court enforcement. Id. at 21a-23a. The court therefore concluded
that, once such relief is terminated, it may not be enforced in state court.
Id. at 23a-25a. The court held, however, that the district court erred in
"vacating" the decrees. The court explained that "[t]he Act
states that such decrees are to be 'terminat[ed]'; it does not speak of
vacatur or use the term 'vacate.'" Id. at 28a.
The court rejected petitioners' contention that Section 3626(b) violates
Article III by requiring the reopening of a final judgment. Pet. App. 30a-33a.
The court explained that, under Plaut v. Spendthrift Farm, Inc., 514 U.S.
211 (1995), and Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S.
(18 How.) 421 (1856), "Congress lacks the authority to alter a finally
rendered judgment ordering the payment of money. On the other hand, to the
extent that a court's final judgment consists of an injunction, Congress
may require alteration or termination of its future effect if the law on
which the injunction was predicated has been changed." Pet. App. 33a.
The court held that the PLRA is constitutional under those standards. The
court reasoned that: "By statute Congress has altered the courts' remedial
powers so that, in this class of cases, injunctions may not be issued if
they are not constitutionally mandated. Congress may accordingly require
the termination of the executory portions of injunctions that exceed the
courts' present remedial powers." Ibid.
The court next rejected petitioners' due process claim, reasoning that petitioners
do not have a constitutionally protected property interest in the continuation
of the prospective relief in the decrees. Pet. App. 38a-39a. The court also
rejected petitioners' equal protection claim, explaining that Section 3626(b)
is rationally related to the legitimate goal "of limiting the grant
or continuation of prospective relief in this context to no more than what
is found necessary to remedy the violation of a federal right." Id.
at 41a. The court held, however, that the district court had erred in failing
to give petitioners an opportunity to present evidence to show that there
is a current and ongoing violation of a federal right. Id. at 43a. The court
therefore remanded for further proceedings on that issue. Ibid.
Judge Jacobs (joined by Chief Judge Winter, and Judges Kearse, Walker, McLaughlin,
Cabranes, and Parker) filed a concurring opinion explaining why he believed
it was appropriate for the court to address the question whether a terminated
decree is enforceable in state court. Pet. App. 45a-46a. Judge Leval (joined
by Judge Oakes, and joined in part by Judge Calabresi), concurred in part.
He argued that the question whether a terminated decree can be enforced
in state court is not properly before the court and that the en banc court's
resolution of that issue is dicta. Id. at 47a- 54a. Judge Calabresi, the
author of the panel decision, concurred in the result. He adhered to his
view that the PLRA does not require termination of the decree itself and
that the decree can therefore be enforced in state court. Id. at 55a-98a.
ARGUMENT
The court of appeals correctly held that the PLRA's immediate termination
provision is constitutional. The seven other circuits that have addressed
the question have reached the same conclusion. See Berwanger v. Cottey,
178 F.3d 834 (7th Cir. 1999); Nichols v. Hopper, 173 F.3d 820 (11th Cir.
1999); Imprisoned Citizens Union v. Ridge, 169 F.3d 178 (3d Cir. 1999);
Hadix v. Johnson, 133 F.3d 940 (6th Cir.), cert. denied, 118 S. Ct. 2368
(1998); Inmates of Suffolk County 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).
This Court has denied petitions for review in five of those cases, and there
is no reason for a different outcome here. The petition for a writ of certiorari
should therefore be denied.
1. a. Petitioners err in contending (Pet. 17-20) that Section 3626(b) violates
the separation-of-powers principles set forth in Plaut v. Spendthrift Farm,
Inc., 514 U.S. 211 (1995). In Plaut, the Court held that Congress may not
require federal courts to reopen final judgments dismissing claims for monetary
relief. Id. at 218-219. Plaut did not suggest, however, that Congress is
precluded from providing for the termination of prospective relief to the
extent that such relief fails to conform to new legal standards. To the
contrary, the Court reaffirmed its earlier decision in Pennsylvania v. Wheeling
& Belmont Bridge Co., 59 U.S. (18 How.) 421 (1856), which it characterized
as upholding Congress's power to "alter[] the prospective effect of
injunctions entered by Article III courts." Plaut, 514 U.S. at 232.
The critical difference is that, while a final judgment on a claim for monetary
relief represents "the last word of the judicial department with regard
to a particular case or controversy," id. at 227, an injunction is
always subject to modification or termination in light of a "significant
change either in factual conditions or in law," Rufo v. Inmates of
Suffolk County Jail, 502 U.S. 367, 384 (1992). Thus, as the courts of appeals
have uniformly concluded, Congress may not require courts to reopen final
judgments on claims for monetary relief, but Congress may require the modification
of prospective relief in accordance with a change in the applicable law.
See, e.g., Hadix, 133 F.3d at 942-943; Dougan, 129 F.3d at 1426; Gavin,
122 F.3d at 1085-1088; Plyler, 100 F.3d at 371-372.
As the courts of appeals have further concluded, Section 3626(b) falls on
the constitutional side of that line. E.g., Hadix, 133 F.3d at 943; Dougan,
129 F.3d at 1426-1427; Gavin, 122 F.3d at 1085-1088; Plyler, 100 F.3d at
372. Section 3626(b) applies only to "prospective relief." 18
U.S.C. 3626(b) (Supp. III 1997). It also requires a court to terminate such
relief only when the relief does not conform to Congress's new legal standard
for awarding equitable relief in prison conditions cases involving consent
decrees. Although courts could previously enter a consent decree that provided
for relief greater than that required by federal law, Rufo, 502 U.S. at
389, the PLRA alters judicial remedial authority in consent decree cases
by providing that relief entered pursuant to a consent decree may "extend
no further than necessary to correct the violation of the Federal right."
18 U.S.C. 3626(a)(1)(A) (Supp. III 1997). Consistent with Plaut and Wheeling
& Belmont Bridge, Congress had authority to provide that existing consent
decrees should be modified so that the prospective relief in those decrees
conforms to Congress's new remedial standard.
Petitioners contend (Pet. 13) that Wheeling & Belmont Bridge is distinguishable,
because in that case "Congress had simply altered the substantive legal
rights that the injunction enforced-legal rights that, unlike the constitutional
rights asserted in the instant cases, were entirely within Congress's power."
That suggested distinction is unpersuasive. Although Congress lacks power
to modify constitutional rights, Congress had the authority to alter the
applicable remedial law in cases alleging violation of constitutional rights
by limiting the authority of courts to award relief to that which is necessary
to remedy a violation of federal law. See Yakus v. United States, 321 U.S.
414, 441-442 & n.8 (1944) (upholding Congress's authority to restrict
the remedial authority of courts and noting numerous instances in which
Congress has exercised such authority). Having made that change in remedial
law, Congress also had the authority under Plaut and Wheeling & Belmont
Bridge, to provide that previously issued injunctions may remain in effect
only if they comply with that new remedial standard. As Judge Selya explained
in Inmates of Suffolk County Jail v. Rouse, "[t]he relevant underlying
law in this case * * * relates to the district court's authority to issue
and maintain prospective relief absent a violation of a federal right, and
the PLRA has truncated that authority." 129 F.3d at 657. If a consent
decree fails to meet the PLRA standards, termination of the decree in response
to the PLRA, "therefore, merely effectuates Congress's decision to
divest district courts of the ability to construct or perpetuate prospective
relief when no violation of a federal right exists." Ibid.; see also
Plyler, 100 F.3d at 372 ("The Inmates fail to understand that the applicable
law is not the Eighth Amendment, but rather is the authority of the district
court to award relief greater than that required by federal law.").
b. Petitioners also err in contending (Pet. Supp. Br. 2) that the Ninth
Circuit's recent en banc decision in Taylor v. United States, No. 97-16069,
1999 WL 402748 (June 18, 1999), suggests that review should be granted in
this case. In Taylor, the Ninth Circuit held that the case before it was
moot. It therefore did not resolve the question whether the PLRA's termination
provision violates Article III. 1999 WL 402748, at *1 ; id. at *9 (Tashima,
J., concurring in part).
Petitioners seek to rely (Pet. Supp. Br. 3-5) on Judge Rymer's view that
the PLRA could not be applied constitutionally to the judgment at issue
in that case. But Judge Rymer spoke for only five of the eleven judges on
the en banc court on that issue. 1999 WL 402748, at *6-*9. One judge did
not reach the issue, id. at *9 (Tashima, J., concurring in part), and five
judges disagreed with Judge Rymer's constitutional analysis, id. at *17-*22
(Wardlaw, J., joined by Thompson, Kleinfeld, Silverman, and Graber, JJ.,
dissenting).
In any event, Judge Rymer perceived a constitutional difficulty with the
PLRA only as applied to cases in which a judgment has been fully executed
and is not subject to further supervision. 1999 WL 402748, at *9. Judge
Rymer distinguished the circuit decisions upholding the PLRA's immediate
termination provision on the ground that they all involved consent decrees
that were subject to continuing judicial supervision. Id. at *8. Since the
consent decrees in this case are subject to continuing judicial supervision,
Judge Rymer's opinion provides no support for petitioners' constitutional
challenge here.
2. Petitioners also contend (Pet. 20-24) that the immediate termination
provision deprives them of vested property rights in violation of the Due
Process Clause. Prospective orders, however, are always subject to possible
modification or termination, and that principle is fully applicable to consent
decrees. Rufo, 502 U.S. at 378. Thus, as the court of appeals concluded
(Pet. App. 38a-39a), petitioners had no vested property interest protected
by the Due Process Clause in the prospective relief embodied in the consent
decrees. See Landgraf v. USI Film Prods., 511 U.S. 244, 273-274 (1994) (plaintiffs
do not have a vested right in an injunctive decree); see also Inmates of
Suffolk County Jail, 129 F.3d at 658; Dougan, 129 F.3d at 1426-1427; Gavin,
122 F.3d at 1090-1091; Plyler, 100 F.3d at 374-375.
3. Petitioners' contention (Pet. 24-27) that Section 3626(b) denies them
equal protection of the laws is also without merit. Because Section 3626(b)
does not interfere with a fundamental right or employ a suspect classification,
it is subject to "rational basis" review. Heller v. Doe, 509 U.S.
312, 320 (1993). Section 3626(b) easily satisfies that standard. As the
court of appeals explained, "[t]he objective of limiting the grant
or continuation of prospective relief in this context to no more than what
is found necessary to remedy the violation of a federal right is unquestionably
a legitimate one." Pet. App. 41a; see also Inmates of Suffolk County
Jail, 129 F.3d at 660; Dougan, 129 F.3d at 1427; Gavin, 122 F.3d at 1090;
Plyler, 100 F.3d at 374.
Petitioners' reliance (Pet. 24-26) on Romer v. Evans, 517 U.S. 620, 632-633
(1996), and City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432,
447-450 (1985), is misplaced. In those cases, the Court held that the legislation
at issue did not bear a rational relationship to any legitimate government
objective but instead could only be understood as being based on irrational
prejudice against the group adversely affected. Ibid. Because the PLRA is
rationally related to a legitimate government objective and is not based
on animus against inmates, Romer and City of Cleburne are inapposite here.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney
General
BARBARA L. HERWIG
ROBERT M. LOEB
Attorneys
AUGUST 1999
* Under 18 U.S.C. 3626(b)(1) (Supp. III 1997), all decrees, including those
entered with the necessary findings, are also subject to periodic review
to determine whether they remain necessary to remedy a constitutional violation.
Section 3626(b)(1) provides for such review two years after the entry of
relief, one year after a denial of a motion to terminate, and, in the case
of pre-PLRA decrees, two years after the date of enactment. In April 1998,
all pre-PLRA decrees became subject to periodic review.