Ruiz v. Estelle

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 97-21003

DAVID R. RUIZ; ET AL.,

Plaintiffs-Appellees,

UNITED STATES OF AMERICA,

Intervenor Plaintiff-Appellee,

versus

W.J. ESTELLE; TEXAS BOARD OF CORRECTIONS,

Defendants-Appellees,

versus

REPRESENTATIVE JOHN CULBERSON; SENATOR J.E. BROWN,

Movants-Appellants.

Appeals from the United States District Court for the
Southern District of Texas

November 20, 1998

Before KING, GARWOOD and HIGGINBOTHAM, Circuit Judges.

GARWOOD, Circuit Judge:

This case involves the attempt by appellants, two Texas state

legislators, to intervene in the long pending suit concerning Texas

prison conditions, which began more than twenty-five years ago.

The district court denied appellants’ motion to intervene under
Fed. R. Civ. P., Rules 24(a)(1), 24(a)(2), and 24(b)(2).1 Because

we conclude that 18 U.S.C. § 3626(a)(3)(F) grants the appellants

“an unconditional right to intervene” in this case within the

meaning of Rule 24(a)(1), we reverse.

In 1972, class-action plaintiffs David Ruiz, et. al.

(plaintiffs), initiated litigation against the Texas prison

authorities, now the Texas Department of Criminal Justice-

Institutional Division (TDCJ), for constitutional violations in

Texas prisons. See generally Ruiz v. Estelle, 503 F.Supp. 1265

(S.D. Tex. 1980), rev’d in part, 679 F.2d 1115 (5th Cir. 1992),

modified in part, 688 F.2d 266 (5th Cir. 1982), cert. denied, 103

S.Ct. 1438 (1983). After a lengthy trial, the district court

ordered injunctive relief, and this Court largely affirmed. See

id. Thereafter, the district court assumed a supervisory role over

Texas prison conditions. See Ruiz v. Lynaugh, 811 F.2d 856 (5th

Cir. 1987).

1
“Rule 24. Intervention.
(a) Intervention of Right. Upon timely application,
anyone shall be permitted to intervene in an action: (1)
when a statute of the United States confers an
unconditional right to intervene; or (2) when the
application claims an interest relating to the property
or transaction which is the subject of the action and the
applicant is so situated that the disposition of the
action may as a practical matter impair or impede the
applicant’s ability to protect that interest, unless the
applicant’s interest is adequately represented by
existing parties.
(b) Permissive Intervention. Upon timely
application anyone may be permitted to intervene in an
action: (1) when a statute of the Untied States confers
a conditional right to intervene; or (2) when an
applicant’s claim or defense and the main action have a
common question of law or fact . . . .”

2
 In 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. See Ruiz v. Collins, Civil No. H-78-987-CA (S.D.

Tex. Dec. 11, 1992) (Memorandum Opinion Accompanying Order

Approving Final Judgment). After notice and evidentiary hearing,

the district court entered the parties’ agreed Final Judgment in

December 1992, which terminated the district court’s jurisdiction

in all but eight substantive areas. One of these eight areas was

prison population and crowding conditions.

In March 1996, the TDCJ moved to terminate the Final Judgment,

and accordingly end the district court’s supervision over Texas

prisons. On April 26, 1996, the Prison Litigation Reform Act

(PLRA), 18 U.S.C. § 3626, Pub. L. 104-134, Title VIII, Sec. 802(a),

110 Stat. 1321-66, was signed into law by President Clinton. On

May 21, 1996, appellants filed a motion to intervene in the

district court, and a proposed motion to vacate the December 1992

Final Judgment, pursuant to the PLRA. In June 1996, plaintiffs

filed an opposition to TDCJ’s motion to terminate, and plaintiffs

and TDCJ filed their respective oppositions to appellants’ motion

to intervene. On September 6, 1996, TDCJ filed a supplemental

motion to vacate the December 1992 judgment and terminate the

district court’s jurisdiction under the PLRA; later that month

plaintiffs filed an opposition to the motion. As of the time this

case was orally argued before us in October 1998, TDCJ’s motion to

terminate was still pending and had not been ruled on. On August

3
29, 1997, appellants filed a motion for expedited ruling on their

motion to intervene and on their therewith tendered motion to

terminate. By order signed November 21 and entered November 24,

1997, the district court denied appellants’ motion to intervene.

On November 26, 1997, President Clinton signed into law amendments

to the PLRA. Pub.L. 105-119, § 123(a), 111 Stat. 2470. On

December 4, 1997, appellants filed their motion to reconsider the

district court’s November 24, 1997, order denying their motion to

intervene, raising, inter alia, the November 1997 amendments to the

PLRA. Plaintiffs and TDCJ opposed the motion. Also on December 4,

appellants filed a protective notice of appeal from the November 24

order. On January 28, 1998, the district court denied appellants’

motion for reconsideration, and on January 29, 1998, appellants

filed an amended notice of appeal as to both the November 24 and

the January 28 orders.

The PLRA narrowly limits the relief which a federal court may

order in prisoner suits. See section 3626. It prohibits a federal

court from ordering any prospective relief “unless the court finds

that such relief is narrowly drawn, extends no further than

necessary to correct the violation of the Federal right, and is the

least intrusive means necessary . . . .” See section

3626(a)(1)(A). Moreover, the PLRA authorizes the termination of

existing prospective relief that does not comply with these limits.

See section 3626(b)(2).2 See also Plyler v. Moore, 100 F.3d 365,

2
Section 802(b)(i) of Pub. L. 104-134, 110 Stat. 1321-70,
provides:

4
369 (4th Cir. 1996) (“The PLRA also provides an avenue for states

to end their obligations under consent decrees providing for

greater prospective relief than that required by federal law.”).

The PLRA grants certain governmental officials the right to

intervene in relevant litigation.3 This intervention provision

forms the basis of the present appeal.

I. Whether the PLRA Applies

Appellants, Texas State Senator J.E. “Buster” Brown and Texas

State Representative John Culberson (appellants or ‘Brown and

Culberson’), seek to intervene in the termination action brought by

TDCJ.4 TDCJ, Brown, and Culberson seek the very same ultimate

“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.”
3
The PLRA as amended in November 1997 states, in pertinent
part:

“Any State or local official including a legislator or
unit of government whose jurisdiction or function
includes the appropriation of funds for the construction,
operation, or maintenance of prison facilities, or the
prosecution or custody of persons who may be released
from, or not admitted to, a prison as a result of a
prisoner release order shall have standing to oppose the
imposition or continuation in effect of such relief and
to seek termination of such relief, and shall have the
right to intervene in any proceeding relating to such
relief.” Section 3626(a)(3)(F)

The legislation affecting the November 1997 PLRA amendments
provides that “The amendments made by this Act shall take effect
upon the date of the enactment of this Act and shall apply to
pending cases.” Pub.L. 105-119, § 123(b), 111 Stat. 2471.
4
Both TDCJ and plaintiffs oppose the intervention. They are
sometimes herein referred to collectively as appellees.

5
relief, namely termination of the Final Judgment. However,

appellants contend that TDCJ is not adequately pursuing this goal.

Specifically, Brown and Culberson object to the TDCJ’s claimed

failure to assert alternative arguments for termination of the

Final Judgment, including arguments under the Tenth Amendment,

Eleventh Amendment, and Guarantee Clause of the United States

constitution.5

Brown and Culberson moved to intervene pursuant to Fed. R.

Civ. P. 24(a)(1) (“Upon timely application, anyone shall be

permitted to intervene in an action: (1) when a statute of the

United States confers an unconditional right to intervene”),

contending that the PLRA granted them an unconditional right to

intervene. The district court held that the PLRA’s intervention

provision applies neither to appellants nor to this case. Finding

error as to each of these grounds, we reverse.

A. Including A Legislator

At the time Brown and Culberson initially moved to intervene

in May 1996, the PLRA, 18 U.S.C. § 3626(a)(3)(F), granted a right

to intervene to:

5
Brown and Culberson wish to argue, inter alia, “that
perpetual federal jurisdiction over the Texas prison system: (1)
invades the core of sovereign authority reserved to the States by
the structure of the ‘compound republic’ of America as expressed by
the Tenth Amendment to the U. S. Constitution; (2) violates the
Guarantee Clause; (3) violates the Eleventh Amendment; (4) violates
principles of federalism and comity; . . . and/or (7) is null and
void because the 1992 Ruiz settlement agreement was a void contract
from its inception because its key terms and effects were
materially misrepresented.”

Our holding today in no way reflects a judgment about the
merits of these arguments.

6
 “[a]ny state or local official or unit of government
whose jurisdiction or function includes the appropriation
of funds for the construction, operation, or maintenance
of prison facilities, or the prosecution or custody of
persons who may be released from, or not admitted to, a
prison as a result of a prisoner release order . . . .”

In October 1996, while the motion to intervene was still

pending before the district court, TDCJ sought to appeal to this

Court the district court’s failure to promptly rule on TDCJ’s

referenced motions to terminate, and in February 1996 Brown and

Culberson filed with this Court a motion to intervene in that

appeal. We denied Brown and Culberson’s motion as inappropriate

because the district court had not yet ruled on Brown and

Culberson’s initial motion. See Ruiz v. Scott, No. 96-21118

(unpublished) (5th Cir. Aug. 6, 1997) (we also dismissed TDCJ’s

appeal). However, we then expressed the view that it was “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.” Id.6

Indeed, we made this remark in response to arguments made by TDCJ

and plaintiffs, which mirror the arguments appellees urge on the

present appeal.7

Following our lead, the district court held that Brown and

Culberson did not fall within the statute’s definition of “state or

6
This language was later withdrawn. See Ruiz v. Scott, 96-
2118 (5th Cir. Oct. 30, 1997) (order denying rehearing en banc).
7
In the prior appeal, TDCJ and plaintiffs were joined in
opposing Brown’s and Culberson’s attempted appellate intervention
by the United States, which has since dropped out of the
litigation.

7
local official.” See Ruiz v Scott, Civil No. H-78-987 (S.D. Tex,

Nov. 24, 1997). The district court determined that the qualifying

“jurisdiction or function” language of section 3626(a)(3)(F)

applies to “state and local official[s]” as well as to “unit[s] of

government.” The court held that Brown and Culberson do not have

the “jurisdiction or function” of appropriating funds. Only a

collective body and no individual legislator can have the

‘jurisdiction’ or ‘function’ of appropriating funds. Texas law

vests authority to appropriate funds with the legislative body as

a whole, not with individual legislators. Id. See also Vernon’s

Ann. Tex. Const. Art. 8 § 6 (1998) (“No money shall be drawn from

the Treasury but in pursuance of specific appropriations made by

law . . . .”). Therefore, the district court held that individual

legislators were not state officials of the kind covered by the

intervention provision.

Significantly, the district court found the absence of the

words “individual legislators” indicative of congressional intent.

“Of particular salience in this matter is the ease with
which the putative intervenors’ interpretation could have
been expressed, had the drafters clearly intended it.
This is not an instance of inadvertent ambiguity, nor is
it the case of a complex statute that resists
interpretation. Neither the standing provision, nor the
definitions section, makes any reference to ‘individual
legislators.’ By doing so, it signaled that mere status
as a legislator is unavailable . . . .” Id.

Thus, the district court determined that Congress’ failure to

include language explicitly granting intervention to individual

legislators foreclosed the possibility that the provision applied

to Brown and Culberson.

8
 Two days after entry of the district court’s order, Congress

amended the PLRA to include the very words the district court had

found lacking. See Public Law 105-119, 111 Stat. 2470, Sec. 123

(a)(1)(B)(ii)(I), November 26, 19978. The intervention provision

now reads, “Any state or local official including a legislator or

unit of government ...” 18 U.S.C. § 3626(a)(3)(F) (emphasis added).

Based on the new statutory language, Brown and Culberson moved

the district court to reconsider their motion to intervene.

Despite the clarified language, the district court ruled that the

intervention provision still did not encompass Brown and

Culberson.9 See Ruiz v. Scott, Civil No. H-78-987 (S.D. Tex. Jan.

28, 1997). The court determined that the “jurisdiction or

function” language still requires any legislator seeking to

intervene to have the authority to single-handedly appropriate

funds. The amended language, the court concluded, simply clarified

that individual legislators were not excluded per se.

We review the district court’s interpretation of the PLRA de

novo. See Spacek v. Maritime Assn., 134 F.3d 283. 288 (5th Cir.

1998).

“In interpreting a statute, our objective is to give effect to

the intent of Congress. As always, we begin with the language of

the statute itself.” Stiles v. GTE Southwest Incorporated, 128

8
The amendment was apparently made in response to this Court’s
earlier dicta regarding the intervention provision, and not in
response to the district court’s order.
9
Technically, this part of the district court’s order is dicta
since the court based its holding on the grounds that the
intervention provision did not apply in this case, discussed infra.

9
F.3d 904, 907 (5th Cir. 1997) (citation omitted).

We conclude that the statute clearly grants individual

legislators the right to intervene. As amended, the intervention

provision (section 3626(a)(3)(F)) reads:

“Any State or local official including a legislator or
unit of government whose jurisdiction or function
includes the appropriation of funds for the construction,
operation, or maintenance of prison facilities, or the
prosecution or custody of persons who may be released
from, or not admitted to, a prison as a result of a
prisoner release order shall have standing to oppose the
imposition or continuation in effect of such relief and
to seek termination of such relief, and shall have the
right to intervene in any proceeding relating to such
relief.”

It is perfectly clear that “appropriation of funds” requires

action of the legislature as a unit or whole. However, it is

equally clear that no such “appropriation of funds” can be made

without the action of individual legislators and that each

legislator, by virtue of that office, has the right, and it is a

part of his or her role as a legislator, to participate in the

legislature’s taking of that action. The question here, then, can

be more generally stated as follows: when a particular species of

action can be taken only by a multi-member governmental body as a

unit or whole, but the body cannot do so if its members do not

participate in the taking of the action and the members, as such,

have the right, and it is part of their role as members, to so

participate, can it fairly be said that a reference to officials or

governmental units whose “jurisdiction or function” includes (inter

alia) the taking of such particular action encompasses only the

bodies themselves to the exclusion of their individual members?

10
The answer, it seems to us, will depend on the context in which the

reference is made. Absent any contrary contextual indication, the

most natural reading of such a reference is that solely the body

itself is intended. But a slight change in context may point to a

broader intended reference which encompasses not only the body

itself but also its individual members. For example, although the

decision of cases before the Supreme Court is clearly made only by

the Court itself, nevertheless it is perfectly natural and

reasonable to speak of the jurisdiction or function of a Justice of

the Supreme Court as including deciding cases that come before the

Court. The context here compels a similar reading as to the

“jurisdiction or function” of “a legislator.”

The position of “a legislator” is one which in essence exists

and has a jurisdiction and function only as a member of a

legislative body or a given branch thereof, and hence the statutory

words “including a legislator” plainly indicate that for purposes

of determining what is within the “jurisdiction or function” of “a

legislator” it is proper to consider what is included within the

jurisdiction or function of the legislature itself. Moreover, to

come within section 3626(a)(3)(F) the putative intervenor must have

a “jurisdiction or function” which “includes” either “the

appropriation of funds” for prisons or “the prosecution or custody”

of persons who may be released from or not admitted to a prison as

a result of the order in question. However, the jurisdiction or

function of a legislator (or the legislature) plainly does not

include the “prosecution or custody” of criminally accused or

11
convicted persons. Hence, to hold that the jurisdiction or

function of “a legislator” also does not include “the appropriation

of funds” for prisons (although the jurisdiction or function of the

legislature itself plainly does include that) is to render totally

without meaning or significance the statutory words “including a

legislator.” Such a construction is contrary to the canon that

“[e]very word used in a statute is presumed to have a meaning, and,

if possible, every word must be accorded significance and effect.”

Argosy Limited v. Hennigan, 404 F.2d 14, 20 (5th Cir. 1968). See

also Crist v. Crist, 632 F.2d 1226, 1233 n.11 (5th Cir. 1980)

(courts must “give effect, whenever possible to all parts of a

statute and avoid an interpretation which makes a part redundant or

superfluous”). This canon has special force as to the words

“including a legislator” because they were added to the statute by

amendment and we presume “that when Congress amends a law the

amendment is made to effect some purpose.” Argosy Limited at 20.10

10
We note that appellants have also argued that section
3626(a)(3)(F) may be construed so that its “whose jurisdiction or
function includes” limiting language applies only to “unit of
government” and not to “[a]ny State or local official including a
legislator.” While such a construction has the virtue of honoring
Congress’ plain 1997 intent to include “a legislator” among the
class of those to whom section 3626(a)(3)(F) grants the right to
intervene, it is not necessary for that purpose, as the
construction we adopt in the text likewise does so. And, there are
at least two reasons for preferring the construction we adopt. To
begin with, it is and has always been unambiguously obvious that a
legislator is included within the class of persons described only
by the words “any State or local official,” and accordingly such a
construction would cause “including a legislator” to be “redundant
and superfluous” contrary to Crist and is also militated against by
the understanding that “‘[t]he word “includes” is usually a term of
enlargement. . . .” Argosy Limited at 20. This rationale is
particularly applicable since the words “including a legislator”
were added by amendment and we presume “the amendment is made to

12
 Were we not convinced by the statute’s plain language, even a

cursory glance at the amendment’s history would demand this

interpretation. The timing of the 1997 amendment, the House

Conference Report, and public commentary confirm Congress’

unambiguous intent: that the intervention provision applies to

individual legislators.

It appears that Congress amended the PLRA largely in response

to language in this Court’s August 6, 1997, opinion “doubting” that

Brown and Culberson satisfied the statutory intervention provision.

See, e.g., Kathy Walt, Judge rejects bid to end U.S. prison

control, THE HOUSTON CHRONICLE, Nov. 25, 1997 (“U.S. House Majority

Whip Rep. Tom DeLay, R-Sugar Land, quietly slipped that wording

into the bill, primarily as a result of the 5th Circuit ruling and

at Culberson’s and Brown’s behest”). The amendment’s sponsor

issued a press release calling that congressional intent to this

Court’s attention: “I wanted . . . the judges on the Fifth

Circuit to know, despite their misinterpretation of Congress’

original intent, legislators were meant to have the right to

intervene in prison lawsuits, and now that right is explicit. . .

effect some purpose.” Argosy Limited. Here, the obvious purpose
was to clarify what was previously doubtful, namely whether it was
proper to ascribe for purposes of section 3626(a)(3)(F) a
“jurisdiction or function” of a particular multi-member unit of
government——the legislature——to its constituent members, the
individual legislators. In the second place, a construction that
divorces the “whose jurisdiction or function includes” limitation
from the “any State or local official” category leads to the absurd
conclusion that Congress intended to grant the right to intervene
to any local official whatever, for example a public weigher,
regardless of the total lack of any possible potential effect on
that official’s duties or function of any order respecting a prison
or prisons.

13
. The amendments I sponsored . . . [make] it absolutely clear

that Judge Justice must immediately end his unjustifiable blockade

of the lawsuit filed in May, 1996 by . . . Buster Brown and . . .

John Culberson.” Presidential Signature Should End William Wayne

Justice’s “Reign of Error,” Press Release from the office of

Congressman Tom DeLay, November 20, 1997.

The press widely reported that Congress amended the PLRA in

response to this Court’s expression of doubt that the provision

applied to individual legislators. See, e.g., Kathy Walt, supra;

DeLay Amendment Limits Prison Consent Decrees, The Bulletin’s

Frontrunner, November 25, 1997 (no author); Michelle Mittelstadt,

Seeking to terminate a federal judge’s . . . ,11/20/97 Associated

Press Pol Serv., 1997 WL 2563977 (“DeLay’s actions are intended to

help two Republican state lawmakers who sought unsuccessfully to

intervene in the lawsuit.”).

Finally, the House Conference Report explicitly states

Congress’ intent to grant the right to intervene to individual

legislators. See H.R. Conf. Rep. 105-405 No. 405, 105th Cong., 1st

Sess. 1997, 1997 WL 712946 (Leg. Hist.) (characterizing amendments

as “technical and limited [changes] . . .to make clear that ‘state

or local official’ includes individual state legislators . . with

regard to who is entitled to intervene as a right . . . .”).11

11
The Report states: “The changes include replacing the word
‘permits’ with ‘requires’ to make clear that ‘state or local
official’ includes individual state legislators . . . .” See id.
The words “permits” and “requires” refer to section 3626(a)(1)(B)(i),
which was also amended by the same 1997 legislation. Pub.L. 105-119,
§ 123(a)(1)(A), 111 Stat. 2470. The referenced amendment to section
3626(a)(3)(F) appears in Pub. L. 105-119, § 123(a)(1)(B)(ii)(I), 111

14
 Beyond doubt, the November 1997 amendment to the PLRA grants

an unconditional right to intervene to individual legislators.

We recognize that granting individual legislators the right to

intervene raises constitutional questions——questions which we

subsequently address on the merits in part II of this opinion——and

that “[a] court must not interpret a statute in a way that raises

constitutional questions if a reasonable alternative construction

poses no such problems.” In re Clay, 35 F.3d 190, 196 (5th Cir.

1994). “But statutory construction may not be pressed ‘”to the

point of disingenuous evasion”’ [citations], and in avoiding

constitutional questions the Court may not embrace a construction

that ‘is plainly contrary to the intent of Congress.’ [citation].”

Communications Workers of America v. Beck, 108 S.Ct. 2641, 2657

(1988). Here we conclude that the intent of Congress is plain that

individual state legislators are among those to whom section

3626(a)(3)(F) grants the right to intervene where the legislative

jurisdiction or function includes appropriation of funds for the

construction, operation, or maintenance of prison facilities

subject to the challenged prisoner release order, the termination

of which the putative intervenors also seek. Here, it is evident

to us that the contrary conclusion would amount to disingenuous

evasion.

B. Prisoner Release Order

Stat. 2470. Section 3626(a)(3)(F) was also then amended in one other
respect, namely to correct an obvious wording error by substituting
“prison” for “program” so that what had been “program facilities” now
reads “prison facilities”; Pub.L. 105-119, § 123(a)(1)(B)(ii)(II), 111
Stat., 2470.

15
 Next, we must determine whether this case falls within the

class of cases to which the intervention provision applies. Again,

our review is de novo. See Spacek v. Maritime Assn., 134 F.3d 283.

288 (5th Cir. 1998).

Section 3626(a)(3)(F) refers to “a prisoner release order” and

then states that the described officials or governmental units

“shall have standing to oppose the imposition or continuation of

such relief, and shall have the right to intervene in any

proceeding relating to such relief.” Id. (emphasis added).

Appellees argue that this provision applies only to cases involving

prisoner release orders, and correspondingly, that this case does

not involve a prisoner release order. We find that the Final

Judgment is indeed a prisoner release order, and therefore that

this case falls within the class of cases to which section

3626(a)(3)(F) applies. We do not reach the question whether the

intervention provision applies to litigation not involving prisoner

release orders.

C. Order vs. Consent Decree

Under the PLRA, “the term ‘prisoner release order’ includes

any order, including a temporary restraining order or preliminary

injunctive relief, that has the purpose or effect of reducing or

limiting the prison population, or that directs the release from or

nonadmission of prisoners to a prison[.]” Section 3626(g)(4). The

district court held that the Final Judgment is not a prisoner

release order (PRO). We resolve first whether a consent decree

should be considered an “order” under the PLRA and, if so, then

16
whether the Final Judgment meets the statutory definition of PRO.

We begin by noting that section 3626(g)(4) states that a PLO

“includes any order” (emphasis added) having a certain purpose or

effect or which directs certain things. Plainly, if the purpose,

effect, or direction requirement is met, there is no other

restriction on the type of “order”——”any” order is “include[d].”

This indicates an intention that “order” as used in section

3626(g)(4) is to be read in a broad and widely encompassing sense.

We also observe that the Final Judgment constitutes or includes

what would normally be considered or described as an order or

orders of the court. The Final Judgment exists and has force and

effect only by virtue of the district court’s December 1992 “Order

Approving Proposed Judgment,” which states, inter alia, that it is

“ORDERED . . . that the proposed final judgment . . . shall be

implemented forthwith in all respects.” The Final Judgment itself

states that its various subparts contain “a condensed statement of

the specific injunctive relief ordered henceforth” (emphasis

added), and its various provisions repeatedly state that

“Defendants shall” do this or that or “Defendants shall not” do

something (emphasis added). The district court’s memorandum

opinion approving the Final Judgment notes that it outlines “the

continuing relief ordered” thereby (emphasis added) and states that

approval thereof is proper in part because “this case is at a point

at which a comprehensive final order is both logical and

appropriate” (emphasis added). In a May 31, 1996, order in this

case, the district court characterized the Final Judgment as

17
containing “continuing permanent injunctive orders” (emphasis

added) and also stated that “the Final Judgment entered permanent

injunctions.” Indeed, it is plain and not disputed by anyone that

the Final Judgment is or contains an injunction or injunctions.

Black’s Law Dictionary (6th ed. 1991) defines injunction as “A

court order prohibiting someone from doing some specified act or

commanding someone . . . .” Id. at 784 (emphasis added). In sum,

it cannot be doubted that in both ordinary and legal parlance the

Final Judgment is or contains an order or orders.

Moreover, it is undisputed that the district court’s December

1992 “Order” expressly “approved” the Final Judgment. The PLRA in

section 3626(b)(1) expressly uses the term “ordered” to encompass

the terms “granted or approved”; and in that sentence “approved”

necessarily refers to consent decrees and is there used

synonymously with “ordered.”12

The district court, however, concluded that the Final Judgment

was not an “order” within the meaning of section 3626(g)(4) because

it was a consent decree, relying on Local No. 93, Int’l Assoc. of

Firefighters, AFL-CIO v. City of Cleveland et al., 106 S.Ct. 3063

(1986). We disagree.

The Final Judgment is a consent decree. Black’s Law

12
“(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 intervenor--
(i) 2 years after the date the court
granted or approved the prospective relief . .
. .” § 3626(1)(b) (emphasis added).

18
Dictionary defines consent decree as “[a] judgment entered by

consent of the parties . . . .” Id. at 284. This definition

reveals consent decrees’ “hybrid nature” between judgment and

contract. See Firefighters, 106 S.Ct. at 3073-74. See also United

States v. ITT Continental Baking Co., 95 S.Ct. 926, 934 n.10 (1975)

(“Consent decrees and orders have attributes both of contracts and

of judicial decrees . . . .”), citing United States v. Swift & Co.,

52 S.Ct. 460 (1932). “The entry of a consent decree is more than

a matter of agreement among litigants. It is a ‘judicial act.’"

Lulac v. Clements, 999 F.2d 831, 845 (5th Cir. 1993), citing

United States v. Swift & Co., 52 S.Ct. 460, 462 (1932). Because

consent decrees contain elements both of contracts and judicial

orders, this Court must decide “whether, given their hybrid nature,

consent decrees implicate the concerns embodied in [the PLRA] in

such a way as to require treating them as ‘orders’ within the

meaning of that provision.” See Firefighters, 106 S.Ct. at 3073-

74.

The Supreme Court distinguished between judgments and consent

decrees for purposes of section 706(g) of Title VII, 42 U.S.C. §

2000e-5(g), in Firefighters. There, minority firemen sued the City

of Cleveland under Title VII, a union representing city firemen

intervened, and subsequently the plaintiffs and the defendant city

agreed to a consent decree over the union’s objections that the

decree provided for special minority promotion opportunities

without requiring each beneficiary to demonstrate he had been a

victim of discrimination. The union claimed that was contrary to

19
the last sentence of section 706(g).13 Before the Supreme Court was

the union’s appeal of the consent decree judgment on that basis

(neither the plaintiffs nor the city challenged the decree). The

Court assumed, arguendo, that section 706(g) would have precluded

the relief granted by the district court had it been ordered on the

basis of a contested case rather than as a consent decree. The

Court held, however, that section 706(g) did not of itself restrict

13
Section 706(g) of Title VII deals with the relief to be
ordered in Title VII lawsuits brought by the EEOC and/or by one or
more aggrieved persons. As it existed at the time of Firefighters,
section 706(g) consisted of the following single paragraph——the last
sentence of which was at issue there——viz:

“(g) If the court finds that the respondent has
intentionally engaged in or is intentionally engaging in
an unlawful employment practice charged in the complaint,
the court may enjoin the respondent from engaging in such
unlawful employment practice, and order such affirmative
action as may be appropriate, which may include, but is
not limited to, reinstatement or hiring of employees,
with or without back pay (payable by the employer,
employment agency, or labor organization, as the case may
be, responsible for the unlawful employment practice), or
any other equitable relief as the court deems
appropriate. Back pay liability shall not accrue from a
date more than two years prior to the filing of a charge
with the Commission. Interim earnings or amounts
earnable with reasonable diligence by the person or
persons discriminated against shall operate to reduce the
back pay otherwise allowable. No order of the court
shall require the admission or reinstatement of an
individual as a member of a union, or the hiring,
reinstatement, or promotion of an individual as an
employee, or the payment to him of any back pay, if such
individual was refused admission, suspended, or expelled,
or was refused employment or advancement or was suspended
or discharged for any reason other than discrimination on
account of race, color, religion, sex, or national origin
or in violation of section 704(a).” Pub.L. 92-261, § 4,
86 Stat. 103, 1972 U.S. Code Cong. and Adm. News 122 at
127-128 (emphasis added).

20
the relief which could be provided for in a consent decree.14

We note to begin with that Firefighters clearly cannot be read

to stand for any categorical or across-the-board proposition that

consent decrees must for all purposes, or in respect to all

statutory references to court orders or judgments, always be

treated differently from judgments or orders entered as the result

of contested litigation. To the contrary, that opinion states:

“. . . as we have previously recognized, consent decrees
‘have attributes both of contracts and of judicial
decrees,’ a dual character that has resulted in different
treatment for different purposes. [citation] The question
is not whether we can label a consent decree as a
‘contract’ or a ‘judgment,’ for we can do both. The
question is whether, given their hybrid nature, consent
decrees implicate the concerns embodied in § 706(g) in
such a way as to require treating them as ‘orders’ within
the meaning of that provision.

Because this Court’s cases do not treat consent
decrees as judicial decrees in all respects and for all
purposes, we think that the language of § 706(g) does not
so clearly include consent decrees as to preclude resort
to the voluminous legislative history of Title VII. The
issue is whether, when Congress used the phrase ‘[n]o
order of the court shall require’ in § 706(g), it
unmistakably intended to refer to consent decrees. . . .
We turn therefore to the legislative history, since the
language of § 706(g) does not clearly settle the matter.”

14
The Court also held that the decree, agreed to by plaintiffs
and the defendant city, was not stripped of its status as a consent
decree or rendered invalid merely by reason of the intervenor
union’s not having agreed to it, because “the consent decree
entered does not bind . . . [the union] to do or not to do
anything,” “imposes no legal duties or obligations on the Union at
all,” and “does not purport to resolve any claims the Union might
have under the Fourteenth Amendment, . . . under § 703 of Title VII
. . . or as a matter of contract.” Id. at 3079. “Indeed, despite
the efforts of the District Judge to persuade it to do so, the
Union failed to raise any substantive claims. Whether it is now
too late to raise such claims, or——if not——whether the Union’s
claims have merit are questions that must be presented in the first
instance to the District Court, which has retained jurisdiction to
hear such challenges.” Id.

21
 Id. at 3073-74.

In reviewing the legislative history, the Court observed that its

holding in Steelworkers v. Weber, 99 S.Ct. 2721 (1979), that Title

VII did not forbid reasonable private agreements seeking to

eradicate race discrimination by affording racial preferences to

individuals who had not been victims of discrimination “was largely

based upon the legislative history” of Title VII. Id. at 3074. In

the same vein, “[t]he legislative history pertaining specifically

to § 706(g) suggests . . . in fact, that a principal purpose of the

last sentence of § 706(g) was to protect managerial prerogatives of

employers and unions.” Id. The Court went on to stress that

“[t]here is no indication in the legislative history that the

availability of judicial enforcement of an obligation, rather than

the creation of the obligation itself, was the focus of

congressional concern” and that judicial enforceability of a

consent decree by contempt “does not implicate Congress’ concern

that the federal courts not impose unwanted obligations on

employers and unions any more than the decision to institute race-

conscious affirmative action in the first place; . . . .” Id. at

3076.

The exact opposite is true with respect to the PLRA. The PLRA

analog to section 706(g) of Title VII is section

3626(a)(1)(A),which, like section 706(g), sets forth limitations on

relief——”[p]rospective relief” in the case of section

22
3626(a)(1)(A)——which a court may afford.15 It is clear beyond

dispute that in the case of the PLRA——unlike section 706(g)——those

limitations are expressly made as fully applicable to consent

decrees as to judgments entered consequent on adversarial

litigation and without agreement. Thus, section 3626(a)(1)(A)

expressly limits not only the “prospective relief” which a court

may “grant,” but, unlike section 706(g), also that which it may

“approve.”16 Similarly, “prospective relief” is defined so that it

expressly “includes consent decrees.” See section 3626(g)(7) &

(9).17 If there were any doubt about the matter, it is completely

15
Section 3626(a)(1)(A) provides in relevant part:

“(1) Prospective relief.——(A) Prospective relief in
any civil action with respect to prison conditions shall
extend no further than necessary to correct the violation
of the Federal right of a particular plaintiff or
plaintiffs. The court shall not grant or approve any
prospective relief unless the court finds that such
relief is narrowly drawn, extends no further than
necessary to correct the violation of the Federal right,
and is the least intrusive means necessary to correct the
violation of the Federal right.” (Emphasis added).
16
Likewise, the parallel right to terminate prospective relief
not meeting the section 3626(a)(1)(A) standard is applicable to
relief “approved or granted.” Section 3626(b)(2) (emphasis added).
17
These sections provide:

“(7) the term ‘prospective relief’ means all relief
other than compensatory monetary damages;

. . . .

(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.” (Emphasis added).

Other relevant definitions in section 3626(g) include the
following:

23
removed by section 3626(c)(1) & (2)(A), viz:

“(1) Consent decrees.——In any civil action with
respect to prison conditions, the court shall not enter
or approve a consent decree unless it complies with the
limitations on relief set forth in subsection (a).
(2) Private settlement agreements.——(A) Nothing in
this section shall preclude parties from entering into a
private settlement agreement that does not comply with
the limitations on relief set forth in subsection (a), if
the terms of that agreement are not subject to court
enforcement other than the reinstatement of the civil
proceeding that the agreement settled.” (Emphasis
added).

In sum, it is wholly obvious that, unlike section 706(g) of

Title VII, the PLRA does expressly restrict the prospective relief

which may be afforded by a consent decree to the same extent and in

the same manner as it restricts the prospective relief which may be

afforded by a judgment entered pursuant to adversarial litigation

without agreement. Moreover, unlike Title VII, which does not

mention consent decrees, the PLRA does expressly reflect Congress’

concern to limit judicial enforcement of obligations that arise out

of the agreement of the parties embodied in a consent decree and

specifically reflects the intention to distinguish between private

settlement agreements which are subject to court enforcement and

those which are not (except by reinstatement of the thereby settled

“(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;

. . . .

(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;” (Emphasis added).

24
proceedings). And, contrary to the situation in respect to Title

VII and its section 706(g), the legislative history of the PLRA is

entirely consistent with and supportive of the intention to thus

limit the relief which can be afforded by a consent decree. As the

Fourth Circuit said in Plyler v. Moore, 100 F.3d 365, 370 (4th Cir.

1996), cert. denied, 117 S.Ct. 2460 (1997), citing the PLRA’s

legislative history, “Congress’s purpose in enacting the PLRA was

“to relieve states of the onerous burden of complying with consent

decrees that often reach far beyond the dictates of federal law.”18

To hold that the Final Judgment, because it is a consent

decree, is therefore not an “order” and hence cannot be a “prisoner

18
See, e.g., H.R. Rep. No. 21, 104th Congress 1st Sess. (1995),
which notes that the then proposed section 3626:

“. . . addresses the problem of federal court-imposed
prison population caps by limiting the remedies that can
be granted or enforced by a court in a prison conditions
suit alleging a violation of a federal right. Courts
hearing such suits have often approved and enforced
consent decrees giving expansive relief to the
complaining inmates. While both state courts and federal
courts have in some instances entered these unnecessarily
broad consent decrees, it is the federal courts that,
often with seemingly good intentions, used these consent
decrees to intrude into a state criminal justice system
and seriously undermine the ability of the local justice
system to dispense any true justice.

Population caps are a primary cause of ‘revolving
door justice.’ The statistics alone do not reflect the
incalculable losses to local communities caused by
criminals confident in their belief that the criminal
justice system is powerless to stop them. In
Philadelphia, over 100 persons have been murdered by
criminals set free by the prison population cap.” Id. at
11 (emphasis added).

This also reflects that a consent decree may be a prisoner release
order.

25
release order,” not only flies in the face of both the language of

the PLRA and the manifest intent of Congress, but likewise wrenches

Firefighters out of context and stands it on its head.

D. “Prisoner Release” Order

Next, the district court determined that even if the Final

Judgment is an order, it does not meet the PLRA’s definition of

“prisoner release” order. The PLRA states that prisoner release

order “includes any order, including a temporary restraining order

or preliminary injunctive relief, that has the purpose or effect of

reducing or limiting the prison population, or that directs the

release from or nonadmission of prisoners to a prison.” 18 U.S.C.

§ 3626(g)(4) (emphasis added).19 The court reasoned that because

the State of Texas is free to build more prisons, the Final

Judgment only regulates prison density and not prison population.

Therefore, the court held that the Final Judgment was not a

prisoner release order under 18 U.S.C. § 3626(g)(4). Again, we

disagree.

The Final Judgment contains population caps on the number of

prisoners allowed to be housed in specified groups of Texas prison

units. (“At the time of this Final Judgment, the maximum system

population of existing units, including [named units], and 20

trusty camps, is 51,067 . . . .”). Eleven individual prison units

19
Section 3626(g)(5) provides:

“(5) the term ‘prison’ means any Federal, State, or
local facility that incarcerates or detains juveniles or
adults accused of, convicted of, sentenced of, or
adjudicated delinquent for, violations of criminal law;”
(emphasis added).

26
are subject to specific population limits. (“Except as permitted

by paragraph XIII.D.2 or Exhibit B, defendants shall not permit the

population of the following individual units to exceed: Darrington

1610[;] Ferguson 2100[;] Wynne 2300[;] Beto I 3150[;] Clemens

894[;] Coffield 3150[;] Eastham 2153[;] Ellis I 1995[;] Ramsey II

893[;] Retrieve 809[;] Huntsville 1705.”). The Final Judgment

mandates reducing these limits if any existing housing portions

thereof are ever closed or converted to some other use. (“The

maximum population of any unit, and the maximum system population,

shall be reduced if any facility, including cellblocks,

dormitories, or any portion thereof is, for any reason, closed or

converted to any use other than the housing of prisoners.”).

Clearly these specific population limits and regulations have the

“purpose or effect of reducing or limiting the prison population”

and in substance “direct the . . . non-admission of prisoners to a

prison.” See 18 U.S.C. § 3626(g)(4). See also Tyler v. Murphy,

135 F.3d 594, 596 (8th Cir. 1998) (holding that twenty-person cap

on probation detainees in one particular prison was a prisoner

release order). The fact that the State of Texas is free to build

more prisons does not alter the fact that the Final Judgment

“limits” the prison population.

In fact, the provisions of the Final Judgment governing the

construction of new facilities closely limit and regulate the

population within such facilities as well. (“Defendants shall not

permit TDCJ-ID’s total prisoner population to exceed the maximum

system population established by paragraph XIII.B.1, as adjusted

27
pursuant to paragraph XIII.B.4 and by the addition of the maximum

population of facilities added pursuant to the terms of this

paragraph XIII.D.”); (“Defendants may increase unit and system

population by constructing permanent additions to or renovating

portions of future units and existing units other than [named

units]. No addition or renovation that is not substantially self-

contained like trusty camp shall be undertaken if its operation

would impair the provision of the services, facilities, and

conditions to the prisoners assigned to the unit to which the

addition or renovation is added.”).

The district court was apparently of the view that an order is

not a prisoner release order even though it has the purpose or

effect of limiting the number of persons that may be held as

prisoners in a then presently existing particular incarceration

facility, or even in all of the then presently existing

incarceration facilities of the jurisdiction in question, so long

as more prisoners can be incarcerated in the future in facilities

constructed or enlarged after the effective date of the order and

the order does not contain an absolute numerical limit on the

number of prisoners that can, in the future, be incarcerated in the

jurisdiction regardless of the capacity or characteristics of

prison facilities which may subsequently be created. In our view,

such a construction is entirely unwarranted. To begin with, it is

highly unlikely that there has ever been a court order limiting the

number of prisoners that may be incarcerated regardless of the

28
capacity or characteristics of the relevant prison or prisons,20 so

the district court’s construction would as a practical matter

render the PLRA’s provisions respecting prisoner release orders a

meaningless exercise in futility.

Moreover, the effect of the Final Judgment is to limit the

total number of prisoners incarcerated in the Texas prison system

to 51,067, at least unless and until additional incarceration

facilities are constructed. Although that limitation may not prove

permanent (because the order does not wholly prohibit construction

and use of new facilities), the fact that the limitation is not

permanent does not mean it is not a limitation. There is nothing

in section 3626(g)(4), defining prisoner release orders, which

suggests that that term is restricted to orders having the effect

of permanently — — as opposed to temporarily or

conditionally——”limiting the prison population.” Indeed, the

language of section 3626(g)(4) clearly reflects that temporary

limits are included, for section 3626(g)(4) specifically embraces

“a temporary restraining order or preliminary injunctive relief.”

The Final Judgment also expressly limits the population of various

particular prisons. “[T]he prison population” as used in section

3626(g)(4) is not restricted to the entire prison system of a

jurisdiction, but also includes individual prisons, which is

reflected by the definition of “prison” as “any Federal, State, or

local facility that incarcerates” (see note 19, supra) and by the

20
Nor are we aware of any constitutional provisions or laws or
court decisions which might even arguably tend to give rise to the
issuance of such an order.

29
fact that section 3626(g)(4) includes orders directing “non-

admission of prisoners to a prison” (emphasis added), which a

population limit on a given prison plainly does. Tyler v. Murphy,

supra.

The Final Judgment is clearly a prisoner release order within

the meaning of 18 U.S.C. § 3626(g)(4).

Because we find that the PLRA as amended grants intervention

as of right to individual legislators, and the Final Judgment here

at issue is a prisoner release order, we hold that the intervention

provision of the PLRA, section 3626(a)(3)(F), applies to this case.

E. Timeliness

Now we examine whether Brown and Culberson’s motion to

intervene was timely. See Fed. R. Civ. P. 24(a) (“Upon timely

application, anyone shall be permitted to intervene in an action

(1) when a statute of the United States confers an unconditional

right to intervene . . . .”) (emphasis added). Denials of

intervention as of right are generally reviewed de novo. See

Edwards v. City of Houston, 78 F.3d 983, 985 (5th Cir. 1996). To

the extent that the determination is based on a finding of

untimeliness, however, this Court reviews for abuse of discretion.

Id. at 1000.

In Sierra Club v. Espy, 18 F.3d 1202 (5th Cir. 1994), this

Court set forth four factors by which to evaluate the timeliness of

an intervention motion. They are: (1) the length of time

applicants knew or should have known of their interest in the case;

(2) prejudice to existing parties caused by applicants’ delay; (3)

30
prejudice to applicants if their motion is denied; and (4) any

unusual circumstances. Id. at 1205.

Based on these factors, the district court determined that

Brown and Culberson’s intervention motion was untimely. However,

because the district court held that section 3626(a)(3)(F) did not

apply to Brown and Culberson, the court’s timeliness determination

was based on factors relevant to Rule 24(a)(2). The district court

determined that appellants’ alleged interest in this case should

have been discovered long ago. This case began in the 1970s, and

other legislators testified at that time. Moreover, the consent

decree was entered in 1992, at which time both appellants were

members of the legislature. However, appellants did not raise any

objections to the consent decree until their motion to intervene,

three-and-a-half years later. Furthermore, the district court

determined that allowing appellants to intervene now would

prejudice the existing parties as it “would amount to a

relitigation of the original entry of a delicately-crafted consent

decree.” While the district court’s analysis arguably may have

provided an acceptable framework to deny appellants’ motions to

intervene under Fed. R. Civ. P 24(a)(2) (“interest intervention”)

or Fed. R. Civ. P. 24(b) (permissive intervention), it cannot

sustain the denial of Rule 24(a)(1) statutory intervention in light

of the PLRA.21

21
Because we hold that appellants were entitled to intervene
under Rule 24(a)(1), we need not determine whether the district
court erred in denying appellants’ motion to intervene under Rule
24(a)(2) and Rule 24(b)(2).

31
 The first factor this Court should examine in evaluating the

timeliness of an intervention motion is “[t]he length of time

during which the would-be intervenor actually knew or reasonably

should have known of its interest in the case before it petitioned

for leave to intervene . . . .” Sierra Club at 1205. The

timeliness of Brown and Culberson’s motion under section

3626(a)(3)(F) must be determined by reference to the passage of the

PLRA on April 26, 1996, and its November 1997 amendment. Brown and

Culberson initially moved to intervene in May 1996, less than one

month after the PLRA provided any statutory right to intervene;

and, within a few days after the November 1997 PLRA amendment which

added “including a legislator” to section 3626(a)(3)(F), appellants

on the basis thereof moved for reconsideration of the order denying

their motion to intervene. Clearly, these motions meet any

standard of timeliness approved by this Court. See, e.g., Edwards

v. City of Houston, 78 F.3d 983 (5th Cir. 1996) (finding

thirty-seven and forty-seven-day delays not unreasonable);

Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir. 1977).

Second, the “prejudice to existing parties” prong of the

Sierra Club test measures prejudice caused by the intervenors’

delay——not by the intervention itself. See Sierra Club at 1205

(“(2) the extent of the prejudice that the existing parties to the

litigation may suffer as a result of the would-be intervenor’s

failure to apply for intervention as soon as it knew or reasonably

should have known of its interest in the case”). As we have

already concluded that Brown and Culberson did not delay in seeking

32
intervention under section 3626(a)(3)(F), it is plain that Brown

and Culberson did not prejudice the existing parties by delay.

Finally, we note that the PLRA’s intervention provision explicitly

authorizes various officials and units of government to oppose the

continuation of preexisting prospective relief, exactly like that

in the present case. To now declare Brown and Culberson’s motion

untimely precisely because this litigation has persisted for

decades would frustrate the very purpose of the intervention grant.

Surely, this qualifies as an “unusual circumstance” militating in

favor of finding timeliness. See Sierra Club at 1205. For these

reasons, we hold that Brown and Culberson timely moved to intervene

in this case under the PLRA.

Intervention under Rule 24(a)(1) is “absolute and

unconditional.” See Brotherhood of Railroad Trainmen v. Baltimore

& O. R. Co. et. al., 67 S.Ct. 1387, 1393. (1947). Rule 24(a)(1)

“statutory intervenors” need not show inadequacy of representation

or that their interests may be impaired if not allowed to

intervene. Cf. Fed. R. Civ. P. 24(a)(2) (absent statutory grant,

intervention as of right requires showing of timeliness, interest

in the subject matter of the transaction, threat that interest may

be impaired if not permitted to intervene, and inadequacy of

representation by existing parties). Under Rule 24(a)(1),

intervenors need not even prove a “sufficient” interest relating to

the subject matter of the controversy, since Congress has already

declared that interest sufficient by granting the statutory right

to intervene. Indeed, “[o]nce it is clear that [the statute

33
applies], there is no room for the operation of a court’s

discretion.” See Brotherhood of Railroad Trainmen, 67 S.Ct. at

1393. Consequently, we hold that Brown and Culberson should have

been permitted to intervene under the PLRA.

II. Constitutionality of the PLRA’S “including a legislator”
Intervention Provision

Having determined that 18 U.S.C. § 3626(a)(3)(F) grants Brown

and Culberson an unconditional right to intervene in this case, we

turn to the final question of whether that statutory provision is

constitutional. Appellees argue that granting individual

legislators the right to intervene under the PLRA would violate

Article III of the Constitution because Article III requires

intervenors to have standing, which they argue Brown and Culberson

lack.

Article III, § 2 limits federal courts’ jurisdiction to

“cases” and “controversies.” See U.S. CONST. art. III, § 2; See

also, e.g., Raines v. Byrd, 117 S.Ct. 2312, 2317 (1997) (“Under

Article III, § 2 of the Constitution, the federal courts have

jurisdiction over this dispute . . . only if it is a ‘case’ or

‘controversy.’”). The case-or-controversy requirement “ensures the

presence of the ‘concrete adverseness which sharpens the

presentation of issues upon which the court so largely depends for

illumination of difficult constitutional questions.’” Diamond v.

Charles, 106 S.Ct. 1697, 1703 (1986), citing Baker v. Carr, 204, 82

S.Ct. 691, 703 (1962).

Standing is a judicially-developed doctrine designed to ensure

an Article III court is presented by parties before it with an

34
actual case or controversy.22 See, e.g., Raines, 117 S.Ct. at 2317

(“One element of the case-or-controversy requirement is that

appellees, based on their complaint, must establish that they have

standing to sue.”) (citation omitted); Lujan v. Defenders of

Wildlife, 112 S.Ct. 2130, 2136 (1992) (“[S]tanding is an essential

and unchanging part of the case-or-controversy requirement of

Article III,” citing Allen v. Wright, 104 S.Ct. 3315, 3324 (1984)).

To establish standing, a party must allege a “personal injury

fairly traceable to the defendant’s allegedly unlawful conduct and

likely to be redressed by the requested relief.” Allen v. Wright,

104 S.Ct. 3315, 3324 (1984). That injury must be “‘distinct and

palpable’ . . . and not ‘abstract’ or ‘conjectural’ or

‘hypothetical. . . .’” Id. (internal citations omitted). This

injury requirement ensures that courts will decide only actual

disputes and not abstract policy questions more properly decided by

coordinate branches of government. See, e.g., Allen v. Wright,

104 S.Ct. 3315, 3325 (1984) (“[T]he law of Art. III standing is

built on a single basic idea – the idea of separation of powers.”)

22
The standing doctrine has two components, the first imposing
constitutional limitations on federal courts’ jurisdiction,
discussed infra, and the second imposing prudential limitations on
the exercise of that jurisdiction. See, e.g., Warth v. Seldin, 95
S.Ct. 2197, 2210 (1975). Prudential standing limitations help
courts identify proper questions for judicial adjudication, and
further define the judiciary’s role in the separation of powers.
See id. However, where, as here, Congress has authorized a party’s
intervention into a case, prudential standing considerations are
significantly lessened. Cf. Raines v. Byrd, 117 S.Ct. 2312, 2318
n.3 (1997) (noting that Congress’ authorization of plaintiffs to
challenge law’s constitutionality eliminated prudential standing
considerations and lessened risk of conflict with legislative
branch).

35
(internal citations omitted). See also id., (“[Questions relevant

to] the standing inquiry must be answered by reference to the Art.

III notion that federal courts may exercise power only ‘in the last

resort, and as a necessity, . . . and only when . . . [i]t is

‘consistent with a system of separated powers and [the dispute is

one] traditionally thought to be capable of resolution through the

judicial process . . . .’”) (internal citations omitted).

Moreover, “standing also reflects a due regard for the autonomy of

those likely to be affected by a judicial decision.” Diamond at

1703. Additionally, standing requires courts to base decisions on

a concrete, actual set of facts, so that a court may appropriately

limit the precedential value of its decisions. See Valley Forge

Christian College v. Americans United for the Separation of Church

and State, 102 S.Ct. 752, 759 (1982).

It is doubtful that, if Brown and Culberson were the only

parties before the court seeking termination of (or other relief

respecting) the Final Judgment, they would have sufficient standing

so that the district court would be presented with an Article III

case or controversy. See Raines v. Byrd, 117 S.Ct. 2312 (1997)

(discussing legislative standing).23 We assume, arguendo only, that

23
In Raines v. Byrd, 117 S.Ct. 2312 (1997), the Supreme Court
held that individual Members of Congress lacked standing to
challenge the constitutionality of the line-item veto. Raines, 117
S.Ct. at 2314. In Raines, Members of Congress alleged that the
line-item veto diminished their congressional voting power, and
therefore caused an “injury” sufficient to create standing. See
id. at 2315-20. The Court characterized this as an “institutional
injury (the diminution of legislative power), which necessarily
damages all Members of Congress and both Houses of Congress
equally.” See id. at 2318. The Court found that the Members had
“alleged no injury to themselves as individuals[, and] the

36
appellants would not have such standing. However, we hold that

Article III does not require intervenors to independently possess

standing where the intervention is into a subsisting and continuing

Article III case or controversy and the ultimate relief sought by

the intervenors is also being sought by at least one subsisting

party with standing to do so.

Traditionally, standing was required only of parties seeking

to initiate a lawsuit. See Valley Forge Christian College v.

Americans United for Separation of Church & State, 102 S.Ct. 752,

758 (1982) (“[A]t an irreducible minimum, Art. III requires the

party who invokes the court’s authority to [show standing]”). In

recent years, however, some courts have required intervenors to

possess standing as well. See, e.g., Mausolf v. Babbit, 85 F.3d

1295, 1300 (8th Cir. 1996); United States v. 39.39 Acres of Land,

754 F.2d 855, 859 (7th Cir. 1985); Southern Christian Leadership

Conference v. Kelley, 747 F.2d 777 (D.C. Cir. 1984). Furthermore,

some courts have interpreted language in Diamond to suggest that

Article III may require intervenors to possess standing as a matter

of constitutional law. See Diamond, 106 S.Ct. at 1707 (“We need

not decide today whether a party seeking to intervene before a

District Court must satisfy not only the requirements of Rule

24(a)(2), but also the requirements of Art. III.”). We think that

institutional injury they allege is wholly abstract and widely
dispersed . . . .” See id. at 2322. Therefore, the Court held that
“these individual members of Congress do not have a sufficient
‘personal stake’ in this dispute and have not alleged a
sufficiently concrete injury to have established Article III
standing.” Id.

37
these courts misinterpret Diamond, and further offer little

justification for reading this new requirement into Article III.

In Diamond, the Supreme Court held that an intervenor could

not pursue an appeal in that Court, in the absence of the party on

whose side he had intervened, without independently possessing

standing. Id. at 1700-03. That case involved a challenge to the

constitutionality of an Illinois abortion law. Diamond intervened

in the district court to defend the statute, claiming an interest

as a pediatrician and as a parent of an unemancipated minor

daughter.24 Id. at 1701.

After the Court of Appeals struck down the law, Diamond wished

to appeal. Unfortunately, the State of Illinois, on whose side

Diamond had intervened, and the only party (other than Diamond) on

that side of the case, declined to appeal. Id. at 1703. The

State’s failure to appeal the ruling destroyed the presence of a

“case” or “controversy” before the Supreme Court. Id. at 1704.

“By not appealing the judgment below, the State indicated its

acceptance of that decision, and its lack of interest in defending

its own statute. The State’s general interest may be adverse to

the interests of appellees, but its failure to invoke our

jurisdiction leaves the Court without a “case” or “controversy”

between appellees and the State of Illinois.” Id.

Therefore, in order for Diamond to have appealed the decision,

he himself would have needed to satisfy Article III’s

24
It is unclear whether Diamond intervened under Rule 24(a)(2)
intervention as of right, or under Rule 24(b) permissive
intervention.

38
jurisdictional case-or-controversy requirement. Id. at 1706.

Diamond could not do this, because his status as a “doctor, a

father, and a protector of the unborn” did not create a sufficient

interest in the litigation to establish standing. Id. at 1705.

Diamond lacked standing; since Diamond was the only party pursuing

the appeal, the case-or-controversy requirement was unsatisfied.

Id. at 1708 (“Because [Diamond] lacks any judicially cognizable

interest in the Abortion Law, his appeal is dismissed for want of

jurisdiction.”).

The language in Diamond which has created confusion was

written in the context of interpreting the applicable intervention

rule. In distinguishing Rule 24(a)(2)’s interest requirement25 from

the standing doctrine’s interest requirement, the Supreme Court

noted the difficulty with which the Courts of Appeals have

differentiated the two “interests.”

“This Court has recognized that certain public concerns
may constitute an adequate ‘interest’ within the meaning
of Federal Rule of Civil Procedure 24(a)(2) . . . .
However, the precise relationship between the interest
required to satisfy the Rule and the interest required to
confer standing, has led to anomalous decisions in the
Courts of Appeals. We need not decide today whether a
party seeking to intervene before a District Court must
satisfy not only the requirements of Rule 24(a)(2), but
also the requirements of Art. III. To continue this suit
in the absence of Illinois, Diamond himself must satisfy
the requirements of Art. III. The interests Diamond
asserted before the District Court in seeking to
intervene plainly are insufficient to confer standing on
him to continue this suit now.” Diamond at 1707
(internal citations and footnote omitted).

25
Fed. R. Civ. P. 24(a)(2) requires an intervenor thereunder
to have an “interest relating to the property or transaction which
is the subject of the action.”

39
 As the Diamond Court noted, the Courts of Appeals disagree

whether Rule 24(a)(2) requires that a putative intervenor

thereunder possess standing. See Diamond at 1707, n.21, citing

United States v. 39.39 Acres of Land, 754 F.2d 855, 859 (7th Cir.

1985); Southern Christian Leadership Conference v. Kelley, 747 F.2d

777 (D.C. Cir. 1984); United States American Tel. & Tel. Co., 642

F.2d 1285 (D.C. Cir. 1980); Sagebush Rebellion, Inc. v. Watt, 713

F.2d 525 (9th Cir. 1983); Planned Parenthood of Minnesota, Inc. v.

Citizens for Community Action, 558 F.2d 861 (8th Cir. 1977).

Notably, these cases each struggled with defining Rule 24(a)(2)’s

interest requirement, and not Article III’s jurisdictional

requirements. To be sure, the “interest” required by Rule 24(a)(2)

has largely evaded a generally accepted precise definition. See

generally, 7C Wright, Miller, and Kane, Federal Practice and

Procedure: Civil 2d § 1908 (2d. ed. 1986) at 263 (“There is not as

yet any clear definition, either from the Supreme Court or from the

lower courts, of the nature of the ‘interest relating to the

property or transaction which is the subject of the action’ that is

required for intervention of right.”). The Diamond Court merely

recognized that some courts have equated the Rule’s interest

requirement with that of standing. See Diamond at 1707.

Of the cases cited in Diamond, only Kelly maintains that

Article III (and not just Rule 24(a)(2) & 24(b)(2)) requires

intervenors to possess standing. See Kelly, 747 F.2d at 778.

Unfortunately, the Kelly opinion merely assumes that Article III

requires intervenors to possess standing, and offers neither

40
precedent nor reasons to support this assertion.

Recently, a divided panel of the Eighth Circuit joined the

Kelly court in elevating the requirement that intervenors possess

standing to a constitutional, rather than a procedural, mandate.

See, e.g., Mausolf v. Babbit, 85 F.3d 1295, 1300 (8th Cir. 1996).

That panel majority held that the presence of intervenors lacking

Article III standing destroyed the court’s jurisdiction over the

case. See id. (“In our view, an Article III case or controversy,

once joined by intervenors who lack standing, is——put bluntly——no

longer an Article III case or controversy”). Judge Wollman

disagreed. Id. at 1304. The Mausolf majority required intervenors

to possess standing because intervenors seek to participate in

lawsuits and ask courts to decide the merits of their claims. See

Mausolf at 1300; accord, City of Cleveland v. Nuclear Regulatory

Commission (NRC), 17 F.3d 1515 (D.C. Cir. 1994), discussing Kelley,

747 F.2d 777. Also, some courts have required standing because

intervenors stand on “equal footing” with the original litigants in

an action. See NRC at 1517. See also People Who Care v. Rockford

Board of Education, 179 F.R.D. 551 (N.D. Ill. 1998) (same); Solid

Waste Agency of Northern Cook County (SWANCC) v. United States Army

Corps of Engineers, 101 F.3d 503, 507 (7th Cir. 1996) (“The

threatened injury would give him the minimal standing required by

Article III, which our court requires of any intervenor”).

We find the better reasoning in those cases which hold that

Article III does not require intervenors to possess standing. See,

e.g., Yniguez v. State of Arizona, 939 F.2d 727, 731 (9th Cir.

41
1991); Chiles v. Thornburgh, 865 F.2d 1197 (11th Cir. 1989);

United States Postal Service v. Brennan, 579 F.2d 188 (2d Cir.

1978). These cases recognize that the Article III standing

doctrine serves primarily to guarantee the existence of a “case” or

“controversy” appropriate for judicial determination, see Allen v.

Wright, 104 S.Ct. 3315, 3324 (1984), and hold that Article III does

not require each and every party in a case to have such standing.

See also, David L. Shapiro, Some Thoughts on Intervention Before

Courts, Agencies, and Arbitrators, 81 Harv. L. Rev. 721, 726 (1968)

(“Perhaps it should go without saying, but it must be understood

that there is a difference between the question whether one is a

proper plaintiff or defendant in an initial action and the question

whether one is entitled to intervene.”).

In Chiles, the Eleventh Circuit held that standing to initiate

a lawsuit was not required in order to intervene into a pending

suit. Id. at 1213. That court noted that the standing requirement

exists to ensure that a justiciable case or controversy exists

before the court. Id. at 1212. Rule 24, authorizing intervention,

presumes that a justiciable case or controversy already exists

before the court. See id; See also, 7C Wright, Miller, and Kane,

Federal Practice and Procedure: Civil 2d § 1917 (2d ed. 1986) at

457 (“Intervention presupposes the pendency of an action in a court

of competent jurisdiction . . . .”) (footnote omitted). Because a

court’s subject matter jurisdiction is necessarily established

before intervention, the Chiles Court held that a party seeking to

42
intervene need not possess standing. Id. at 1212-13.26 See also

Shapiro, supra (“When one seeks to intervene in an ongoing lawsuit,

these basic questions [whether the controversy is ripe for

adjudication, whether the proper parties are before the court, and

whether the interests are sufficient to invoke jurisdiction] have

presumably been resolved.”).

The Second, Sixth, and Ninth Circuit Courts of Appeals have

reached similar conclusions. See United States Postal Service v.

Brennan, 579 F.2d 188, 190 (2d Cir. 1978) (“The existence of a case

or controversy having been established as between the Postal

Service and the Brennans, there was no need to impose the standing

requirement upon the proposed intervenor.”); Associated Builders

& Contractors v. Perry, 16 F.3d 688, 690 (6th Cir. 1994) (“An

intervenor need not have the same standing necessary to initiate a

lawsuit in order to intervene in an existing district court suit

where the plaintiff has standing”, citing Trbovich v. United Mine

Workers, 92 S.Ct. 630, 635-36 (1972)); Yniguez v. State of

Arizona, 939 F.2d 727, 731 (9th Cir. 1991) (requiring Article III

standing only where intervenor sought to pursue appeal on his own).

26
The Eleventh Circuit held that while Article III does not
require intervenors to have standing, “[t]he standing cases . . .
are relevant to help define the type of interest that the
intervenor must assert [under Rule 24(a)(2)].” Chiles at 1213.
Like the Supreme Court in Diamond, we are not today presented with
the proper interpretation of Rule 24(a)(2). Our holding is simply
that Article III does not require intervenors to have standing as
a matter of constitutional law. Whether intervention under Rule
24(a)(2) requires such a showing, we do not today consider. As to
Rule 24(a)(2), see generally New Orleans Public Service v. United
Gas Pipe Line, 732 F.2d 452, 463-466 (5th Cir. ), cert. denied, 105
S.Ct. 434 (1984).

43
 Once a valid Article III case-or-controversy is present, the

court’s jurisdiction vests. The presence of additional parties,

although they alone could independently not satisfy Article III’s

requirements, does not of itself destroy jurisdiction already

established.27 Cf. Wichita R. & Light Co. v. Public Utilities

Commission of the State of Kansas, 43 S.Ct. 51, 54 (1922)

(“Jurisdiction once acquired on that ground [diversity of

citizenship] is not divested by a subsequent change in the

citizenship of the parties. . . . Much less is such jurisdiction

defeated by the intervention, by leave of the court, of a party

whose presence is not essential to a decision of the controversy

between the original parties.”).

Finally, appellees argue that even if standing is not required

of all intervenors, it should be required in this case because

Brown and Culberson advance arguments not raised by either

party——specifically, that the district court’s Final Judgment

violates the Tenth Amendment, the Eleventh Amendment, and the

27
Somewhat analogously, the presence of additional claims which
could not have been filed in federal court does not necessarily
divest a federal court of jurisdiction so long as the Article III
requirements remain intact. See 28 U.S.C. § 1367. When a federal
claim is removed to federal court, the addition of a state-law
claim, which would not independently be removable, does not deprive
a federal court of jurisdiction so long as “the relationship
between [the federal] claim and the state claim permits the
conclusion that the entire action before the court comprises but
one constitutional ‘case.’” See United Mine Workers v. Gibbs, 86
S.Ct. 1130, 1138 (1966). The Gibbs holding is now essentially
codified at 28 U.S.C. § 1367, (“the district courts shall have
supplemental jurisdiction over all other claims that are so related
to claims in the action within [the district court’s] original
jurisdiction that they form part of the same case or controversy
under Article III of the United States Constitution.”).

44
Guarantee Clause of the United States Constitution. Appellees

argue that Brown and Culberson need standing because they “seek to

invoke” the district court’s jurisdiction in order to decide the

merits of their claims. This use of the term “invoke” is

misplaced. The court’s jurisdiction in this case has already been

invoked by the original parties. At the very least, there has been

a case or controversy since TDCJ filed its motion to terminate and

plaintiffs their opposition, and there continues to be a case or

controversy.

Brown and Culberson seek the same ultimate relief as the TDCJ:

the termination of the Final Judgment. They merely seek that

relief based in part on different legal theories. This is not a

case where the intervenors seek alternative injunctive relief, or

to block a proposed settlement. Instead, Brown and Culberson seek

only to ask the district court to consider other possible legal

grounds for granting the relief TDCJ has already requested. Such

a request creates no jurisdictional obstacle for the court. Cf.

United States ex Rel Thompson v. Columbia/HCA Health Care Corp.,

125 F.3d 899 (5th Cir. 1997) (appeals court may uphold judgment on

any proper ground, even though ground was not relied upon by the

district court). But see Bethune Plaza, Inc. v. Lumpkin, 863 F.2d

525, 531 (7th Cir. 1988) (suggesting that standing may be required

in part because an intervenor acquires rights which may undermine

the original parties’ interests). Moreover, as the Court said in

Firefighters:

“It has never been supposed that one party——whether an
original party, a party that was joined later, or an

45
 intervenor——could preclude other parties from settling
their own disputes and thereby withdrawing from
litigation. Thus, while an intervenor is entitled to
present evidence and have its objections heard at the
hearings on whether to approve a consent decree, it does
not have power to block the decree merely by withholding
its consent.” Id., 106 S.Ct. at 3079 (emphasis added).28

28
The Court went on to note the obvious:

“Of course, parties who choose to resolve litigation
through settlement may not dispose of the claims of a
third party, and a fortiori may not impose duties or
obligations on a third party, without that party’s
agreement. A court’s approval of a consent decree
between some of the parties therefore cannot dispose of
the valid claims of nonconsenting intervenors; if
properly raised, these claims remain and may be litigated
by the intervenor.” Id.

Whether (or under what circumstances, if any), if TDCJ and
plaintiffs completely settled, appellants would have sufficient
standing for the district court to continue to be presented with an
Article III case or controversy is not an issue before us. Nothing
suggests that any settlement is in the offing. We also note that
under the PLRA the district court is precluded, inter alia, from
entering or approving any consent decree, or otherwise ordering or
granting any prospective relief, unless the limitations of section
3626(a) are met. See section 3626(c). Nor are we presented with
a situation in which the district court has ruled on the motion to
terminate, TDCJ does not appeal, and Brown and Culberson attempt
to. See Diamond.

In a letter submission tendered approximately a month after
this case was orally argued, plaintiffs (not joined by TDCJ) assert
for the first time in this Court that if the PLRA authorizes Brown
and Culberson to intervene it violates the Tenth Amendment and the
Guarantee Clause because, they argue, it constitutes the federal
government’s selecting who will speak for the state. But, Brown
and Culberson, by their intervention, do not (and they do not
purport to) speak for or represent the state or the TDCJ; they
speak for and represent only themselves in their respective
official positions as individual legislators. The other arguments
in this letter are addressed earlier in this footnote and in the
text. We also note that section 3626(a)(3)(F) speaks only to
intervention which seeks, as does that of appellants, “to oppose
the imposition or continuation” of court-ordered relief against a
state (or one of its entities or subdivisions) or “to terminate”
such relief; in other words, section 3626(a)(3)(F) intervention is
only to relieve a state of court orders which impose restrictions
or obligations on it.

46
 For the foregoing reasons, we reverse the district court’s

denial of Brown’s and Culberson’s motion to intervene and we remand

the case with instructions to forthwith grant Brown and Culberson

intervention.29

REVERSED and REMANDED with instructions

29
We order that the mandate issue forthwith. See Fed. R. App.
P. 40, 41. We are informed that the district court has set TDCJ’s
motion to terminate for hearing January 21, 1999. We further
observe that the motion to terminate has not been promptly ruled on
as required by section 3626(e)(1).

47