IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-21118
DAVID R. RUIZ; ET AL.,
Plaintiffs-Appellees,
UNITED STATES OF AMERICA,
Intervenor-Plaintiff-Appellee,
versus
WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL
DIVISION; ALLEN B. POLUNSKY; ELLEN J. HALBERT;
CAROLE S. YOUNG; JOSHUA W. ALLEN; R.H. DUNCAN;
JOHN R. WARD; JOHN DAVID FRANZ; NANCY PATTON;
CAROL S. VANCE,
Defendants-Appellants.
* * * * * * * * * ** * * * * * * * * * * *
consolidated with
No. 97-20068
IN RE: WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION;
ALLEN B. POLUNSKY; ELLEN J. HALBERT; CAROLE S.
YOUNG; JOSHUA W. ALLEN; R.H. DUNCAN; JOHN R. WARD;
JOHN DAVID FRANZ; NANCY PATTON; CAROL S. VANCE,
Petitioners.
Appeal from the United States District Court for the
Southern District of Texas
(H-78-CV-787)
August 6, 1997
____________________
On Petition for Writ of Mandamus to the United States District
Court for the Southern District of Texas
(H-78-CV-787)
_____________________
Before GARWOOD, BENAVIDES and STEWART, Circuit Judges.*
PER CURIAM:
We are now presented with yet another episode in the long-
pending Texas prison class action litigation, which began some
twenty-five years ago.
Procedural History
Following a trial that began in October 1978 and ended in
September 1979, the district court in December 1980 issued a
lengthy memorandum opinion finding conditions of confinement in the
Texas prison system to be in violation of the United States
Constitution. Subsequently, in May 1981 the district court issued
a declaratory judgment and injunction on issues not disposed of by
a consent decree that had been entered in the interim, and
appointed a special master to monitor implementation of relief. We
generally affirmed the findings of constitutional violations but
*
Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2
narrowed the scope of the relief ordered. See Ruiz v. Estelle, 503
F.Supp. 1265 (S.D. Tex. 1980), rev’d in part, Ruiz v. Estelle, 679
F.2d 1115 (5th Cir. 1982), modified in part, 688 F.2d 266 (5th Cir.
1982), cert. denied, 103 S.Ct. 1438 (1983). In July 1985, the
district court approved a modification of the decree reflected in
a “Crowding Stipulation” entered into between the parties, which
was “a comprehensive management scheme that seeks to reduce the
crowded conditions of all Texas penitentiaries.” Ruiz v. Lynaugh,
811 F.2d 856, 857 (5th Cir. 1987). In September 1986, the
defendants moved the district court to modify the Crowding
Stipulation to allow some increase of the prison system allowable
capacity without new construction; in October 1986, the district
court denied this request and precluded consideration of certain
beds in calculating capacity; the defendants appealed, and in
February 1987 we affirmed. Ruiz v. Lynaugh, supra.
In March 1990, the district court ordered the parties to begin
negotiations to bring about a comprehensive final order in the
case, including timetables for termination of the court’s
jurisdiction. In January 1991, defendants moved to terminate all
existing orders, and in March 1992 defendants filed a comprehensive
memorandum supporting their motion, plaintiffs filed an opposition
thereto, and the parties engaged in discovery. In July 1992, the
United States, which had intervened as a plaintiff in 1974, filed
a memorandum in support of defendants’ motion, urging the court “to
3
dissolve all injunctive orders in this case and terminate
jurisdiction,” asserting that in the past decade there had been
“dramatic improvements of conditions throughout” the prison system,
that “there can be no serious claim that Texas is not currently in
compliance with the Constitution,” and that defendants “have
substantially complied with the court’s orders in this case.” Also
in July 1992, the class plaintiffs and the defendants agreed on a
proposed final judgment, which they jointly submitted to the court
in August 1992. In this proposed judgment, the defendants withdrew
their earlier motion to terminate the court’s jurisdiction.
Pursuant to order of the court, the class members were given
notice. On October 26, 1992, the United States notified the court
that it did not object to the proposed final judgment. Later that
month, an evidentiary hearing was held on the proposed final
judgment.
On December 11, 1992, the district court entered a lengthy
memorandum opinion, making extensive findings and approving the
proposed final judgment. A separate order approving the judgment
was entered the same day.
As subsequently characterized by the district court (in its
May 31, 1996, order), the December 11, 1992, final judgment
“vacated and replaced numerous detailed orders and compliance
plans. It resulted in complete relief from judgment and
termination of the court’s jurisdiction in nine substantive areas
and continuing permanent injunctive orders on eight substantive
4
issues.” Neither the December 11, 1992, memorandum opinion nor the
final judgment of the same date make any express finding of present
or ongoing constitutional violations, and the injunctive relief
granted thereby imposes at least certain requirements or
restrictions that are not constitutionally mandated (e.g., the
December 11, 1992, memorandum recognizes that the provision of the
final judgment of the same date requiring defendants “to maintain
a contact visiting program in perpetuity” is not constitutionally
required, citing Block v. Rutherford, 104 S.Ct. 3227 (1984). While
neither the December 1992 memorandum nor the final judgment
expressly finds that there were no extant or ongoing constitutional
violations, the memorandum quotes and apparently credits1 testimony
of state officials suggestive of constitutional compliance, and it
also states that:
“TDCJ-ID has remade itself into a professionally operated
agency whose goals are to achieve the highest standards
of correctional excellence.
Equally important, the measures taken by TDCJ-ID
officials to meet their constitutional obligations have
been memorialized and institutionalized in numerous
internal rules and regulations that have replaced this
court’s orders as the agency’s ‘road map’ to success.
The court is satisfied that the defendants not only will
maintain and implement these rules and regulations, but
also will continue to strive to improve on them and their
implementation despite the absence in many areas of
detailed court orders.
1
In a footnote to the memorandum the court indicates that its
references to evidence “indicate . . . that the court finds the
evidence credible and is using it as a source for the substantive
findings.”
5
The parties have caused remarkable and palpable
changes to occur within TDCJ-ID, and for that the court
is grateful.”
The memorandum likewise observes that the record before the
court permitted it “to be fully informed on all relevant matters as
it evaluates the proposed final judgment.”2 Finally, as the
memorandum notes, the final judgment provides for class counsel and
the Special Master to be relieved of their duties June 1, 1993, and
“[u]ntil that date, the Special Master will continue to assist the
parties in resolving compliance issues.”
On March 25, 1996, defendants filed a motion to vacate the
December 11, 1992, final judgment “pursuant to Fed. R. Civ. P.
60(b)(5).” The motion alleges in relevant part:
“The Defendants currently operate a constitutional prison
system and the State has taken substantial steps to
ensure its continuing commitment to such an operation,
moving beyond the bare requirements with strong
legislation to provide for future compliance with the
Constitution in the various aspects of prison management.
The state acknowledges that no practical effect
would be felt by the vacating of the Final Judgment:
Texas prisons would operate without the Final Judgment as
they operate today. This motion is not predicated upon
the state’s present desire or intent to alter any aspect
of prison administration. Indeed, we can fathom no
prison policy or practice which the state would desire to
employ which is in any way impeded by the Final
Judgment.”
. . . .
Defendants’ compliance with the Final Judgment, the
2
However, the record before us does not include that of any
hearing or hearings leading to the December 11, 1992, memorandum
and final judgment.
6
public’s interest and the State of Texas’ desire to
exercise autonomy over its institutions, mandate that any
remaining vestiges of court involvement——however
passive——with the prison system, now be vacated. In the
face of the commitment of the defendants, the State and
its agencies, and the legislature to continuing a
constitutional prison system, the defendants submit that
the time to vacate the final judgment is now at hand.”
On April 26, 1996, the Prison Litigation Reform Act (PLRA) was
signed into law by President Clinton, and its relevant provisions
are now codified as 18 U.S.C. § 3626. Pub. L. 104-134, Title VIII,
Sec. 802(a), 110 Stat. 1321-66.3 Some of the relevant provisions
of this legislation are noted below.
On May 31, 1996, the district court entered an order
respecting the defendants’ March 25 motion.4 This order states
that the December 1992 final judgment “resulted in complete relief
3
Section 802(b) of Pub. L. 104-134 provides:
“(b) APPLICATION OF AMENDMENT.——
(1) IN GENERAL.——Section 3626 of title 18, United
States Code, as amended by this section, shall apply with
respect to all prospective relief whether such relief was
originally granted or approved before, on, or after the
date of the enactment of this title.
(2) TECHNICAL AMENDMENT.——Subsections (b) and (d) of
section 20409 of the Violent Crime Control and Law
Enforcement Act of 1994 are repealed.”
4
On May 21, 1996, Texas State Representative Culberson and
Texas State Senator Brown (who have moved to intervene in the
present proceedings in this Court)filed a motion to intervene as
defendants in the district court and a proposed motion to vacate
the December 1992 final judgment pursuant to the PLRA. On June 20,
1996, plaintiffs and defendants filed separate oppositions to the
Culberson and Brown motion to intervene. On July 5, 1996,
Culberson and Brown filed a reply brief in support of their motion
to intervene. So far as the record discloses, the motion to
intervene has not been ruled on by the district court.
7
from judgment and termination of the court’s jurisdiction in nine
substantive areas and continuing permanent injunctive orders on
eight substantive issues,” and (somewhat mysteriously) that the
defendants’ motion “puts in issue not only the eight substantive
areas as to which the Final Judgment entered permanent injunctions
but also the constitutionality of the entire operation of the Texas
prison system.” The order goes on to appoint as attorney for the
plaintiff class the same attorney who had been representing the
class in connection with defendants’ January 1991 motion and
thereafter and until June 1993, and it orders that plaintiffs’
counsel and defendants’ counsel
“shall meet and confer within forty-five days from the
entry of this order and attempt to (1) narrow the issues
in dispute, (2) establish a joint discovery plan, (3)
discuss what role, if any, the Special Master in this
cause could play in the efficient development of a
factual record, and (4) propose to the court an agreed-
upon schedule for a hearing on defendants’ motion.
Within sixty days of the entry of this order the parties
shall report to the court on the results of this
meeting.”
On June 20, 1996, plaintiffs filed their opposition to
defendants’ March 25, 1996, motion to vacate. This opposition
primarily asserts that the allegations in defendants’ motion to not
entitle them to any relief——i.e., even if the prison system is and
has been since the December 1992 final judgment operated in all
respects constitutionally and in accordance with that judgment,
defendants are not entitled to have the judgment vacated or
modified, largely because such compliance was contemplated by the
8
agreed judgment. The opposition then goes on to assert “Plaintiffs
deny defendants’ factual assertions that current conditions meet
constitutional requirements in all respects and will put defendants
to their proof on their allegations.” However, the opposition
fails to allege any specific asserted violation or even general
type or character of violation, either current or existing at any
time on or after (or within a year before) December 1992; nor does
it allege in any fashion that any sort of constitutional
violations, current or extant at or after (or within a year before)
December 1992, are (or were) widespread or systemic; nor does it
allege any current or past violation of the December 1992 final
judgment.
On August 8, 1996, defendants filed a report as called for by
the court’s May 31 order. The report advised that plaintiffs’
counsel and the Department of Justice had toured one prison unit,
that tours of additional units, including tours by medical experts,
were to be made in the near future, that defendants had produced
documents to plaintiffs’ counsel, who had not yet completed review
of them, that the parties would notify the court as soon as an
agreement was reached on what issues were in dispute and on a
discovery plan, and that “[o]nce the parties determine what
additional discovery is necessary, they will report to the district
court on an agreed hearing date.”
The next relevant filing contained in the record before us
occurred on September 6, 1996, when defendants filed their
9
Supplemental Motion To Vacate Final Judgment. This motion
commences as follows:
“Defendants, by and through Attorney General Dan
Morales, file their supplemental motion to vacate the
final judgment. Defendants have previously moved this
court to vacate the final judgment in this matter
pursuant to Fed. R. Civ. P. 60(b)(5). Defendants now
move, in the alternative, to vacate the final judgment
pursuant to 18 U.S.C. § 3626(b)(2), as amended by the
Prison Litigation Reform Act, Title VIII of P.L. 104-134,
signed into law by President Clinton on April 26, 1996.”
The motion asserts that because the December 1992 final judgment
does not contain the findings specified in section 3626(b)(2), it
should be immediately terminated.5
5
Section 3626(b) provides:
“(b) Termination of relief——
(1) Termination of prospective relief.——(A) In any
civil action with respect to prison conditions in which
prospective relief is ordered, such relief shall be
terminable upon the motion of any party or intervener——
(i) 2 years after the date the court granted or
approved the prospective relief;
(ii) 1 year after the date the court has entered an
order denying termination of prospective relief under
this paragraph; or
(iii) in the case of an order issued on or before
the date of enactment of the Prison Litigation Reform
Act, 2 years after such date of enactment.
(B) Nothing in this section shall prevent the
parties from agreeing to terminate or modify relief
before the relief is terminated under subparagraph (A).
(2) Immediate termination of prospective relief.——In
any civil action with respect to prison conditions, a
defendant or intervener shall be entitled to the
immediate termination of any prospective relief if the
relief was approved or granted in the absence of a
finding by the court that the relief is narrowly drawn,
extends no further than necessary to correct the
violation of the Federal right, and is the least
intrusive means necessary to correct the violation of the
10
On September 23, 1996, plaintiffs filed their opposition to
Federal right.
(3) Limitation.——Prospective relief shall not
terminate if the court makes written findings based on
the record that prospective relief remains necessary to
correct a current or 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.
(4) Termination or modification of relief.——Nothing
in this section shall prevent any party or intervener
from seeking modification or termination before the
relief is terminable under paragraph (1) or (2), to the
extent that modification or termination would otherwise
be legally permissible.”
Section 3626(g)(1), (6), (7) and (9) provide, respectively:
“(1) the term ‘consent decree’ means any relief
entered by the court that is based in whole or in part
upon the consent or acquiescence of the parties but does
not include private settlements;
(2) . . .;
(3) . . .;
(4) . . .;
(5) . . .;
(6) the term ‘private settlement agreement’ means an
agreement entered into among the parties that is not
subject to judicial enforcement other than the
reinstatement of the civil proceeding that the agreement
settled;
(7) the term ‘prospective relief’ means all relief
other than compensatory monetary damages;
(8) . . .;
(9) the term ‘relief’ means all relief in any form
that may be granted or approved by the court, and
includes consent decrees but does not include private
settlement agreements.”
11
defendants’ September 6, 1996, motion. This pleading asserts that
“the PLRA should not be applied retroactively to invalidate the
Final Judgment, entered before the PLRA became law,” that “in
substance and effect” the December 1992 memorandum and judgment
made the findings required by the PLRA, that an evidentiary showing
and factual findings were required to resolve both defendants’
March 25, 1996, motion and their September 6, 1996, motion, that
defendants waived or were estopped to invoke the “automatic stay”
provisions of the PLRA, 3626(e)(2),6 that such stay provisions are
inapplicable or, if applicable, are unconstitutional, and that the
PLRA is unconstitutional if it invalidates or terminates the
December 1992 final judgment. Plaintiffs’ opposition does not
assert, either generally or in any particular, that the prison
conditions or operations are now, or have ever been since December
6
Section 3626(e) provides,
“(e) Procedure for motions affecting prospective
relief.——
(1) Generally.——The court shall promptly rule on any
motion to modify or terminate prospective relief in a
civil action with respect to prison conditions.
(2) Automatic stay.——Any prospective relief subject
to a pending motion shall be automatically stayed during
the period——
(A)(i) beginning on the 30th day after such motion
is filed, in the case of 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 of a motion made under any other law;
and
(B) ending on the date the court enters a final
order ruling on the motion.”
12
1992 (or since December 1991), unconstitutional or in violation of
the December 1992 final judgment.
Also on September 23, 1996, the district court signed an
order, entered September 25, 1996, providing as follows:
“The Court has reviewed defendants’ Supplemental
Motion to Vacate Final Judgment, filed September 6, 1996,
under the Prison Litigation Reform Act (‘PLRA’), and
plaintiffs’ response thereto. The Court also takes note
of defendants’ Motion to Vacate Final Judgment filed
March 25, 1996, pursuant to Fed. R. Civ. P. 60(b), and
the parties’ Report to the Court filed August 8, 1996,
contemplating the development of a factual record and an
evidentiary hearing.
It is impossible for the Court to resolve
defendants’ motions within the 30-day period specified in
18 U.S.C. sec. 3626(e)(2)(A)(i), or the 180-day period in
subsection (A)(ii). The Court believes that the status
quo should be preserved pending the resolution of
defendants’ motions, and finds that the PLRA ‘automatic
stay’ provisions violate the Separation of Powers and due
process of law, substantially for the reasons discussed
in Hadix v. Johnson, No. 80-CV-73581, 1996 U.S. Dist.
LEWIS 9864 (E.D. Mich. July 5, 1996), and Gavin v. Ray,
No. 4-78-CV-70062 (S.D. Iowa, Sept. 18, 1996).
Accordingly, the Court will proceed to give due
consideration to both of defendants’ motions when the
parties are ready for a hearing on them. In the
meantime, the Final Judgment remains in full force and
effect.”7
7
On September 25, 1996, the United States filed its response
to defendants’ September 6, 1996, supplemental motion to vacate (so
far are we can ascertain the United States never responded to
defendants’ March 25, 1996, motion under Rule 60(b)). This
response commenced by stating:
“The United States was not a party to the Final
Judgment entered by this Court in 1992. Consequently,
the United States takes no position on whether this Court
should vacate the Final Judgment. The United States does
have some continued concern over issues of medical and
mental health care in the Texas prison system, based on
13
On October 24, 1996, defendants filed a notice of appeal from
the district court’s September 23, 1996, order. That appeal was
docketed as our No. 96-21118.8 On the same day, defendants filed
in the district court a motion to stay the district court’s
September 23 order pending the appeal of that order. This motion
asserts that by the September 23 order
“the Court denied the relief mandated by the PLRA, i.e.
the immediate termination of judgment in the absence of
language in that judgment indicating 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
numerous complaints we have received in the last few
years. The United States has not yet had an opportunity
to substantiate these complaints and is in discussions
with the State of Texas to gain access to the facilities
accordingly. Nevertheless, given the longstanding nature
of this litigation, the United States intends to pursue
those concerns separately pursuant to its authority under
the Civil Rights for Institutionalized Persons Act
(‘CRIPA’), 42 U.S.C. § 1997 et seq., and, if necessary,
issue a new notice of investigation specifically tailored
to investigate those medical and mental health issues.”
The pleading goes on to assert that section 3626(e)(2) is
constitutional, provided it is construed, as it accordingly should
be, not to be “self-executing” or to operate to “preclude a court’s
deliberative process.”
8
On November 25, 1996, the United States also filed a notice
of appeal from the district court’s order dated September 23, 1996.
On December 23, 1996, the United States moved to dismiss its said
appeal; this motion was unopposed, and this Court dismissed the
appeal of the United States on December 23, 1996. In its brief in
this Court, the United States labels itself as only an appellee
(and a respondent to defendants’ petition for mandamus), and in its
brief requests as relief only that the district court’s September
23, 1996, “judgment . . . refusing to give effect to the automatic
stay provision pending decision on the State’s motion for immediate
termination be affirmed” and that the defendants’ petition for writ
of mandamus be denied.
14
of the Federal right.’ 18 U.S.C. § 3626(b)(2).”
The motion also argues that defendants are likely to prevail on
appeal on their claim that the district court’s failure to
immediately terminate the December 1992 judgment is contrary to
section 3626(b)(2). Further, the motion contends that the failure
to grant a stay will deprive defendants of an intended benefit of
the PLRA, namely “immediate termination of the judgment without the
delay and expense associated with discovery and a hearing.” This
is the only harm which it is alleged that defendants will suffer if
a stay is denied. The motion continues by asserting: “The Act
provides for immediate termination of the judgment. Based upon the
record currently before the Court, Defendants are entitled to have
the Final Judgment vacated.”
On November 14, 1996, the district court signed an order
denying defendants’ motion for stay pending appeal. The court
observed that defendants had not shown likely error in the court’s
conclusion that section 3626(e)(2) was unconstitutional, and
rejected defendants’ claim that they would be unduly “injured by
the delay and expense of discovery and a hearing on their motion to
vacate final judgment,” specifically noting that in their March 25
motion defendants asserted “‘no practical effect would be felt by
vacating the Final Judgment’” and that they “‘can fathom no prison
policy or practice which the state would desire to employ which is
in any way impeded by the Final Judgment.’” No notice of appeal
has been filed from this November 14 order.
15
Defendants thereafter filed in this Court a motion to stay
discovery (in the district court) pending resolution of their
appeal (our cause No. 96-21118) of the district court’s September
23, 1996, order. On December 31, 1996, a motions panel of this
Court denied the motion for stay, noting that it was doubtful the
September 23 order was appealable. The order of this Court was
“without prejudice to such rights, if any, as said appellants may
have to seek mandamus relief.” On approximately January 24, 1997,
defendants filed their petition for writ of mandamus herein, which
was assigned our cause No. 97-20068. On February 3, 1997, a
motions panel of this Court ordered that the mandamus (No. 97-
20068) be consolidated with the appeal (No. 96-21118). The
consolidated cases were orally argued before the instant panel on
June 3, 1997.
In the meantime, on February 24, 1997, Texas State
Representative John Culberson and Texas Senator J.E. Brown (see
note 4, supra) filed in this Court, in our cause No. 96-21118,
their motion for leave to intervene as “defendants” in the
proceedings before this Court, and their motion “for leave to file
motion to terminate federal jurisdiction over the Texas prison
system.” Plaintiffs, the United States, and the defendants have
each filed their oppositions to these motions.
Discussion
We conclude that the September 23, 1996, order of the district
16
court is not an appealable order, under either 28 U.S.C. § 1291 or
28 U.S.C. § 1292(a)(1). Plainly, the order of September 23, 1996,
does not dispose of the entire case, and hence does not meet the
normal requirements of section 1291.
Nor is that order one “refusing to dissolve or modify
injunctions” within section 1292(a)(1). The district court’s
September 23 order does not deny either of defendants’ motions to
terminate, but rather expressly states “the Court will proceed to
give due consideration to both of defendants’ motions [the Rule
60(b) motion filed March 25, 1996, and the “supplemental motion”
filed September 6, 1996] when the parties are ready for a hearing
on them.” We note that the September 6 motion was expressly made
“in the alternative” to the March 25 motion, which was never
withdrawn and was still pending before the court.9 In its May 31,
1996, order respecting the March 25, 1996, motion, the court had
expressly directed the parties to propose an agreed schedule for a
hearing. On August 8, 1996, defendants had reported to the court
that “they will report to the district court on an agreed hearing
date.” Defendants have never requested a hearing date. They have
not sought a ruling, as such, on either of their motions, they have
9
By letter dated July 8, 1997, over a month after this case
was orally argued and taken under submission by this panel,
defendants advised this Court that on July 3, 1997, they had filed
(or mailed for filing) in the district court a notice that they
were thereby “withdrawing without prejudice” their March 25, 1996,
motion under Rule 60(b). But that July 1997 action is not
effective to change the character of the district court’s 1996
orders.
17
simply asked that the court grant their September 6 motion to
terminate. Moreover, defendants do not claim that they face any
emergency; none of the representations in their March 25, 1996
motion that there was nothing they wanted to do, or even
contemplated doing, which would or might be prevented by the
December 1992 final judgment have been in any way, expressly or
impliedly, retracted. In these circumstances, the fact that the
district court’s September 23, 1996, order did not immediately
grant defendants’ September 6, 1996, motion, but rather merely
deferred ruling on it, does not constitute that order as one
“refusing to dissolve or modify” the December 1992 final judgment
(which we treat as an injunction for these purposes). See Overton
v. City of Austin, 748 F.2d 941, 949-952 (5th Cir. 1984). Of
course, should the district court deny, in whole or in part,
defendants’ motion to terminate, the defendants may then appeal
under section 1292(a)(1).
Defendants assert jurisdiction under the collateral order
doctrine allowing immediate section 1291 appeal of orders denying
defenses based on qualified (or absolute) immunity or Eleventh
Amendment immunity, and cite our decision in Helton v. Clements,
787 F.2d 1016 (5th Cir. 1986). However, this is not an immunity
case of any kind. The Supreme Court has refused to broadly read
the collateral order exception to the final judgment rule; and to
come within that exception it is not sufficient that appellants’
18
position, if sustained, would obviate the necessity for trial or
discovery. See, e.g., Swint v. Chambers County Commission, 115
S.Ct. 1203, 1208 (1995); Digital Equipment Corp. v. Desktop Direct,
Inc., 114 S.Ct. 1992, 1998-2000 (1994). And, defendants’ claim
here——namely, that section 3626(b)(2) entitles them to termination
of the December 1992 final judgment——is not really “conceptually
distinct” from the underlying merits, but rather essentially
constitutes the merits. Cf. Helton at 1017 (“the claim of immunity
. . . is conceptually distinct from the merits of the plaintiff’s
claim that her rights have been violated,’” quoting Mitchell v.
Forsyth, 105 S.Ct. 2806, 2816 (1985)). We also note that
defendants have not filed a motion for summary judgment and have
not asked for a setting of either of their motions or for the court
to rule thereon one way or the other, but have simply asked for the
court to grant their supplemental motion. All the court has done
is to defer ruling on defendants’ two motions, and the only thing
before it is their two motions (now, apparently, their one motion;
see note 9, supra). We reject defendants’ attempt to invoke the
collateral order doctrine on the basis of an analogy to the
immunity cases.
The United States takes the position that the district court’s
September 23, 1996, order is appealable under the collateral order
doctrine because it is a final ruling, separate from the merits,
that the stay provisions of section 3626(e)(2) (see note 6, supra)
19
are unconstitutional. We reject this position, without ruling on
its facial merits, but because it misconceives the nature of
defendants’ appeal. The district court’s September 23, 1996, order
did two things: (1) it declared section 3626(e)(2)
unconstitutional; (2) it declined to immediately rule, one way or
the other, on either of defendants’ motions (the March 26, 1996,
Rule 60(b) motion and the September 6, 1996, supplemental motion
based on section 3626(b)(2)), stating “the Court will proceed to
give due consideration to both of defendants’ motions when the
parties are ready for a hearing on them.” It is this latter
portion of the district court’s order which the defendants attack
on appeal. Defendants never requested the district court to stay
its December 1992 final judgment pending a ruling on either of
their two motions to vacate the December 1992 final judgment.
Although after they gave their notice of appeal herein from the
September 23, 1996, order, the defendants did request the district
court to stay that 1996 order, they did not even then request a
stay of the December 1992 final judgment, and they have not
appealed the district court’s denial of that stay; moreover, their
complaint was that they would have to undergo burdensome discovery
and an evidentiary trial, a matter which would not be obviated had
the district court stayed its December 1992 judgment pending
resolution of defendants’ motions to vacate. Similarly, in this
Court defendants sought a stay of discovery pending their appeal of
20
the September 23, 1996, order. Finally, defendants’ briefing and
argument in this Court assert that they were entitled, under
section 3626(b)(2), to have their supplemental motion to vacate
granted with resultant immediate termination of the December 1992
judgment, not that they were entitled to a stay of the December
1992 judgment until the district court ruled on their motion or
motions to vacate.10 And, defendants’ brief in this Court concludes
by stating:
“The constitutionality of the automatic stay is not
relevant to the situation presented by this case. The
record clearly evidences no ongoing current
constitutional violation and, therefore, the district
court had no need to go further. The court was obliged
to terminate the Final Judgment.
CONCLUSION
Defendants pray that this Court reverse the Order of
the district court and render judgment terminating the
Final Judgment in this litigation.”11
The defendants’ appeal of the district court’s September 23,
1996, order seeks to review not the failure to stay the December
1992 final judgment pending ruling on the defendants’ motion or
motions to vacate that 1992 judgment, but rather the court’s
10
We note that section 3626(e)(2)(B) plainly contemplates that
a motion to vacate or terminate may be acted on——i.e. granted or
denied——after the stay called for by section 3626(e)(2)(A) has
commenced, and that the stay terminates when the court rules one
way or the other on the motion to vacate or terminate.
11
Likewise, in their petition for writ of mandamus, defendants
state: “The constitutionality of the automatic stay is not
relevant to the situation presented by this case.”
21
failure to immediately grant defendants’ September 6, 1992, motion
by permanently terminating the December 1992 judgment. However,
the district court has not denied defendants’ motion to vacate or
indicated that it will not rule upon same when the parties are
ready for a hearing. Under the present circumstances, that aspect
of the September 23, 1996, order challenged on appeal is not an
appealable order.
The appeal in No. 96-21118 is dismissed for want of an
appealable order.
We turn now to the mandamus. As with the appeal, the mandamus
does not seek to require the district court to stay (or recognize
that section 3626(e)(2) stays) the December 1992 judgment pending
its ruling on the motion or motions to vacate, but rather seeks to
require the district court to grant the September 6 motion to
vacate and permanently terminate the prospective relief ordered by
the December 1992 judgment under section 3626(b)(2).12 The mandamus
also requests that we stay all discovery and hearings in the
district court pending our resolution of defendants’ appeal.13
12
See note 11, supra.
13
The petition for mandamus describes the relief sought thereby
and the issue presented as follows:
“A. THE RELIEF SOUGHT
Petitioners request this Court to enter an order
requiring the district court to:
1. vacate its Order of September 25, 1996 and
immediately terminate the prospective relief of the Final
22
We decline to issue a writ of mandamus at this time.
Defendants’ claims for mandamus relief are entirely grounded
on the proposition that by virtue of the provisions of section
3626(b)(2) they are “entitled to the immediate termination of any
prospective relief” provided by the December 1992 judgment because
that “relief was approved or granted in the absence of a finding by
the court,” in either the December 1992 judgment itself or the
December 1992 memorandum approving it, “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.” Id. As to at least
some of the prospective relief ordered by the December 1992
judgment, it appears clear that the standards of section 3626(b)(2)
are not met so that if section 3626(b)(2) stood alone it would
purport to entitle defendants to immediate termination of at least
some of the prospective relief ordered by the December 1992
Judgment in light of the fact that it is not accompanied
by the requisite finding of § 3626(b)(2); or,
alternatively, to
2. vacate the district court’s Order of November
20, 1996 and stay all discovery and hearings pending
resolution of the Petitioners’ appeal.
B. ISSUES PRESENTED
Whether the district court has any discretion to
refuse the mandatory duty under the PLRA, to immediately
terminate a continuing decree in a prison reform lawsuit,
and instead implement discovery and hold an evidentiary
hearing.”
23
judgment; indeed, it is arguable that this is true as to all the
prospective relief granted in the December 1992 judgment. However,
as the plaintiffs and the United States point out, section
3626(b)(2) does not stand alone; rather, it is immediately followed
by section 3626(b)(3), which provides:
“(3) Limitation.——Prospective relief shall not
terminate if the court makes written findings based on
the record that prospective relief remains necessary to
correct a current or 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.”
Defendants do not seriously contend that, if the district
court appropriately makes, on a proper basis, all the findings
referenced in section 3626(b)(3), that termination——even though
otherwise called for by section 3626(b)(2)——is nevertheless
required. Rather, defendants’ contention is that to come within
the section 3626(b)(3) “limitation,” the findings called for by
section 3626(b)(3) must be entirely “based on the record” as it
existed when the order granting prospective relief was
entered——here, December 1992——or, at most, also as it existed when
the motion to vacate or terminate under section 3626(b)(2) was
filed. We note, initially, that we do not have before us any such
record. We do not have the record of the evidentiary hearing in
October 1992 that led to the December 1992 judgment. Moreover, the
docket entries from January 1993 through August 1996 occupy a stack
almost half-an-inch thick of letter-size pages in the record, and
24
the record before us includes only the tiniest fraction of the
documents thus listed (we realize many——perhaps all——of these
documents may well be immaterial). Defendants do not explain how
we can direct the district court to terminate the prospective
relief of the December 1992 judgment even if we were to accept
defendants’ interpretation of “based on the record” as used in
section 3626(b)(3). Moreover, it is by no means clear that
defendants’ interpretation of section 3626(b)(3)’s “based on the
record” is correct. A strong argument to the contrary can be made,
namely: that section 3626(b)(3) contemplates that the findings
referenced therein could be made in respect to prospective relief
ordered several years previously——as in this case——and that the
court could find that such relief “remains” necessary to correct “a
current or ongoing” violation, all of which indicates that present
conditions (respecting the particular subject matter as to which
prospective relief was previously ordered) are what is ultimately
determinative for purposes of section 3626(b)(3); and if present
conditions are determinative, then that suggests that the court in
determining whether to make the section 3626(b)(3) findings is not
restricted to a record made years previously. Similarly, it is
clearly arguable that even if the record made years ago when the
prospective relief was ordered would have then supported the
findings called for by section 3626(b)(2)——albeit there were no such
findings then made one way or the other on the section 3626(b)(2)
25
factors——nevertheless termination should now be ordered if the facts
as now shown to the district court do not show that now such
“relief remains necessary to correct a current or ongoing
violation”; if the four-year-old order——though warranted when made,
no longer “remains necessary” or there is now no longer any
“current or ongoing violation,” then section 3626(b)(3) should not
block termination of relief.
Like their arguments that they are entitled to have us now
order the district court to immediately terminate relief,
defendants’ arguments about discovery are premised entirely on the
theory that “based on the record” in section 3626(b)(3) refers to
no more than the record already existing when the motion to vacate
is filed. That, however, is not clear and indisputable. Moreover,
defendants ask only for a stay of discovery pending our ruling on
their appeal, which we have now dismissed. We note that defendants
have not sought to prevent any particular discovery, but only a
blanket ban on any and all discovery.14
Defendants as petitioners for mandamus bear the burden of
showing “that their right to issuance of the writ is ‘clear and
indisputable.’” Ozee v. American Council on Gift Annuities, Inc.,
14
And, we again note that defendants have not asked us to order
the district court to stay the December 1992 judgment under section
3226(e)(2). The validity of section 3626(e)(2) is irrelevant both
to the discovery issue and to the issue of the proper construction
of “based on the record” in section 3626(b)(3), as defendants have
recognized (see note 11, supra, and accompanying text).
26
110 F.3d 1082, 1093 (5th Cir. 1997) (quoting Mallard v. United
States District Court, 109 S.Ct. 1814, 1822 (1989)). This they
have not done.15 Moreover, issuance of mandamus is discretionary
with this Court, and as a matter of discretion we decline to now
issue the requested writ in the present circumstances. See Kerr v.
United States District Court, 96 S.Ct. 2119, 2124 (1976); Overton
at 958.
Our action herein must not be misunderstood.
We are well aware that section 3626(e)(1) provides that the
district court “shall promptly rule on” any motion to modify or
terminate prospective relief in a prison conditions case (emphasis
added). And, we assume that the district court will comply with
this unchallenged and important directive.16 Indeed, defendants do
15
While arguably the “clear and indisputable” right to relief
standard might be relaxed in the context of an issue of law where
the failure to do so would likely cause the mandamus petitioner
severe harm (or there are other compelling circumstances), this is
not such a case. Here, the defendants have never retracted their
assertion that there is nothing they desire to do, or are
considering doing, respecting the prison system that the December
1992 judgment would preclude; moreover, they have (until at least
a month after this case was under submission following oral
argument to the panel) kept their Rule 60(b) motion pending; also
they have done little, if anything, to press for a ruling on either
of their motions, apart from asserting to the district court (and
this Court) that it should rule on their PLRA motion without
considering anything not of record when the motion was filed.
16
Plaintiffs’ contentions that the PLRA is unconstitutional as
applied to consent judgments entered before its effective date, or
that by its terms it does not apply to such judgments, or that in
such an instance it does not authorize termination prior to April
26, 1998, are all essentially questions of law which should present
no obstacle to a prompt ruling on defendants’ September 6, 1996,
27
not contend that the district has not done so (except insofar as
they contend that any reference to or discovery respecting facts
not memorialized in the record when their September 6, 1996 motion
was filed is a failure to rule promptly). There would seem to be
little reason for extended delay. The district court below is
familiar with the case, of course. The lawyers are also presumably
familiar with the case, not only from the 1992 hearing but also
from the discovery prior thereto and from discovery since June
1996. There is——or was——a record (albeit not now before us) on the
basis of which the district court issued its December 1992
memorandum and judgment. Relevantly updating that to the present
with respect to the “eight substantive issues” as to which the
December 1992 judgment issued “continuing permanent injunctive
orders” should not be overly burdensome or time consuming. We note
that so far as the record before us discloses, plaintiffs have not
even alleged that there is any current or ongoing constitutional
violation in the prison system. We emphasize, moreover, that
ruling on defendants’ September 6, 1996, motion should not entail
a general overall examination of the prison system, but should
simply be focused on those continuing injunctive orders (concerning
the “eight substantive issues”) contained in the December 1992
judgment. Ruling on the motion is not an occasion to examine other
motion, which is based entirely on the PLRA (and which is now the
only motion to vacate pending before the district court).
28
areas of prison conditions or practices, neither the “nine
substantive areas” as to which the December 1992 judgment “resulted
in complete relief from judgment and termination of the court’s
jurisdiction” nor areas not dealt with one way or the other in the
December 1992 judgment. Further, it must be remembered that the
limitation on termination provided by section 3626(b)(3) is
restricted to instances where the district court makes affirmative
findings, adequately based on the record, as stated in section
3626(b)(3). Finally, as we recently noted in Johnson v. Rodriguez,
110 F.3d 299, 312 (5th Cir. 1997), “‘systemwide injunctive relief
may not be predicated on individual misconduct that “is not part of
a pattern of persistent and deliberate official policy”’” (quoting
Ruiz v. Estelle, 679 F.2d 1115, 1154 (5th Cir. 1982), modified in
part, 688 F.2d 266 (5th Cir. 1982), cert. denied, 103 S.Ct. 1438
(1983)). See also Lewis v. Casey, 116 S.Ct. 2174, 2183-84 (1996).
Our denial of the instant mandamus is without prejudice to
whatever rights defendants may have to seek such relief should the
district court fail to rule promptly on defendants’ September 6,
1996, motion to vacate.
We now turn to the motion of Representative Culberson and
Senator Brown to intervene in the proceedings before this Court.
We deny the motion. Neither Culberson nor Brown is or was a party
to this case, and intervention on appeal is inappropriate under the
circumstances here, particularly as they have pending in the
29
district court a motion to intervene which the district court has
not ruled on (and neither complains of that failure to rule nor
seeks from us any order requiring the district court to rule). If
the district court denies that motion, they may appeal the denial
of their motion. We note in passing that it is at best doubtful
that either Representative Culberson or Senator Brown is that sort
of “state or local official or unit of government” to whom or which
section 3626(a)(3)(F) grants a right to intervene. Because we have
denied their motion to intervene in the proceedings before this
Court, we likewise deny the motion of Representative Culberson and
Senator Brown to file in this Court their motion to terminate
federal jurisdiction over the Texas prison system. We likewise
deny all other motions of Representative Culberson and Senator
Brown that are pending in this Court and have not previously been
ruled on by this Court or a judge hereof.
Conclusion
We dismiss the appeal of defendants because the district
court’s September 23, 1996, order failing to immediately rule on
their September 6, 1996, motion to vacate the December 1992
judgment is not a final, appealable order under section 1291, or
the collateral order rule, and does not constitute an order
appealable under section 1292(a)(1).
We deny defendants’ petition for writ of mandamus.
We deny the motion of Texas Representative Culberson and Texas
30
Senator Brown to intervene, and likewise deny all other pending and
previously unruled-on motions of said putative intervenors.
APPEAL DISMISSED; MANDAMUS DENIED;
MOTION TO INTERVENE and RELATED MOTIONS DENIED
31