United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 11, 2021 Decided July 6, 2021
No. 20-5216
EDWARD BANKS, ET AL.,
APPELLEES
v.
QUINCY L. BOOTH, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF
THE DISTRICT OF COLUMBIA DEPT OF CORRECTIONS AND
LENNARD JOHNSON, IN HIS OFFICIAL CAPACITY AS WARDEN,
D.C. DEPT. CORRECTIONS,
APPELLANTS
Consolidated with 21-5033
Appeals from the United States District Court
for the District of Columbia
(No. 1:20-cv-00849)
Carl J. Schifferle, Deputy Solicitor General, Office of the
Attorney General for the District of Columbia, argued the cause
for appellants. With him on the briefs were Karl A. Racine,
Attorney General, Loren L. Alikhan, Solicitor General, and
Caroline S. Van Zile, Principal Deputy Solicitor General.
2
Steven Marcus argued the cause for appellees. With him
on the brief were Scott Michelman, Arthur B. Spitzer, Jonathan
W. Anderson, Jenna Cobb, Jonathan S. Meltzer, Jeremy S.
Kreisberg, Brendan B. Gants, and Rachel G. Miller-Ziegler.
David M. Shapiro was on the brief for amicus curiae the
Roderick and Solange MacArthur Justice Center in support of
appellees.
Before: HENDERSON and ROGERS, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: The Director and
Warden of the District of Columbia Department of Corrections
(collectively “Corrections”) appeal from the district court’s
order of a preliminary injunction requiring the Department of
Corrections to take certain actions to reduce the threat of
COVID-19 within its correctional facilities. Appellants
contend that under the governing provisions of the Prison
Litigation Reform Act, 18 U.S.C. § 3626(a)(2), the preliminary
injunction has expired, and the cases are now moot. Because
we agree that the preliminary injunction has expired,
challenges to the order imposing that injunction are moot and
we must dismiss the appeal.
I.
On March 11, 2020, the mayor of the District of Columbia
declared a public health emergency due to the COVID-19
pandemic. The Department of Corrections responded by
instituting policies intended to protect its employees and
inmates from the coronavirus.
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On March 30, pretrial and postconviction inmates at D.C.
correctional facilities filed a class action complaint and habeas
petition, seeking relief on behalf of all inmates in D.C.
facilities. The plaintiffs’ complaint asserted causes of action
under 28 U.S.C. § 2241 and 42 U.S.C. § 1983 for violations of
the Fifth and Eighth Amendments. Plaintiffs immediately
moved for a temporary restraining order, a preliminary
injunction, and for the district court to certify the class.
Before ruling on the motions for preliminary relief, the
district court appointed two amici to investigate and report on
the conditions at D.C. correctional facilities. Amici reported
that while suspected-positive inmates were appropriately
quarantined, quality-of-life in quarantine units was
substantially worse than for the general population. Moreover,
inmates had delays in receiving care, personal protective
equipment was scarce, social distancing was not enforced,
cleanliness varied by unit, and inmates lacked access to
confidential legal phone calls. Incorporating the amici’s report
in its findings of fact, the district court granted the plaintiffs’
motion for a temporary restraining order on April 19. The order
generally required Corrections to address the problems amici
identified. After granting the temporary restraining order, the
district court ordered amici to reevaluate the facilities to
determine compliance with its order and provide further
recommendations. Amici reported that Corrections had taken
several appropriate steps, but not all reasonable precautions, to
protect inmates. Although COVID cases in the correctional
facilities decreased following mid-April, significant problems
remained. For example, sanitation remained deficient and
social distancing remained imperfect.
Two months later, on June 18, 2020, the district court
granted plaintiffs’ motion for a preliminary injunction. The
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preliminary injunction ordered the defendants, inter alia, to
ensure inmates receive medical attention within 24 hours after
reporting of medical problems, to contract for COVID-19
cleaning services, ensure quarantine isolation units are
nonpunitive, and provide access to confidential legal calls.
Corrections immediately took steps to comply with the order.
One month later, Corrections filed a motion to vacate the
preliminary injunction due to changed circumstances under
Federal Rules of Civil Procedure 54(b), 59(e), and 60(b). In
response, the court asked amici once again to report on
conditions in D.C. jails. Amici reported substantial
improvement in Corrections’ COVID protocols, but also
imperfect compliance with the district court’s preliminary
injunction. Based on that report, the district court determined
that changed factual circumstances did not justify vacating the
injunction.
On appeal, Corrections argue that their appeal is moot
because the preliminary injunction expired after 90 days under
the Prison Litigation Reform Act. In the alternative, they
challenge the district court’s grant of a preliminary injunction
in the first instance and its failure to vacate the injunction based
on changed circumstances. Although appellants also argue that
the district court made distinct errors in the issuance of the
preliminary injunction, because appellants’ mootness
argument is dispositive, we need not address the other issues.
II.
The mootness argument tests the jurisdiction of the court.
Therefore, we must address this issue before even considering
any other. In addressing this issue, we must determine whether
the Prison Litigation Reform Act’s 90-day expiration period for
preliminary relief applies to the order under review. If it does,
this appeal is moot and we must order dismissal.
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The relevant provision of the Prison Litigation Reform Act
states:
In any civil action with respect to prison conditions, to the
extent otherwise authorized by law, the court may enter a
temporary restraining order or an order for preliminary
injunctive relief. Preliminary injunctive relief must be
narrowly drawn, extend no further than necessary to
correct the harm the court finds requires preliminary relief,
and be the least intrusive means necessary to correct that
harm. The court shall give substantial weight to any
adverse impact on public safety or the operation of a
criminal justice system caused by the preliminary relief
and shall respect the principles of comity set out in
paragraph (1)(B) in tailoring any preliminary relief.
Preliminary injunctive relief shall automatically expire on
the date that is 90 days after its entry, unless the court
makes the findings required under subsection (a)(1) for the
entry of prospective relief and makes the order final before
the expiration of the 90-day period.
18 U.S.C. § 3626(a)(2). More briefly put, if a judge enters a
preliminary injunction in a suit covered by this section, that
injunction will terminate on its 90th day unless the court has
rendered it permanent and made specific findings that the
restraint is narrowly drawn, extends no further than necessary
to correct the violation of federal right, and is the least intrusive
means necessary to correct that violation.
The statute defines the term “civil action with respect to
prison conditions” as “mean[ing] any civil proceeding arising
under Federal law with respect to the conditions of
confinement or the effects of actions by government officials
on the lives of persons confined in prison, but does not include
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habeas corpus proceedings challenging the fact or duration of
confinement in prison.” Id. § 3626(g)(2).
The statute further defines the term “prison” as “mean[ing]
any Federal, State, or local facility that incarcerates or detains
juveniles or adults accused of, convicted of, sentenced for, or
adjudicated delinquent for, violations of criminal law.” Id.
§ 3626(g)(5).
Appellants’ mootness argument is straightforward. The
statute covers civil actions addressing prison conditions. This
action is a civil action addressing conditions in District of
Columbia Department of Corrections facilities. The statute
requires the making of certain findings. Appellees concede that
the district court did not make the findings required under
section 3626(a)(1) or make the order final before 90 days after
the entry of the preliminary injunction. See Appellees’ Br. 13–
25.
There can be no serious argument that this statute does not
govern this case. This litigation is quintessentially the case to
which the statute applies. The statute describes a civil action
“with respect to prison conditions.” 18 U.S.C. § 3626(a)(2).
This case arises on a complaint that alleges claims based on
conditions in the District of Columbia prisons and nothing else.
The statute addresses a preliminary injunction affecting those
conditions, and we have before us a preliminary injunction
addressing those claims. While we hardly need precedent for
the proposition that this is a civil action addressing covered
conditions, we note that the Third, Fifth, and Eleventh Circuit
Courts of Appeals have considered the issue in passing and
summarily concluded or assumed that section 3626(a)(2)
applies to similar cases. See Hope v. Warden York Cty. Prison,
972 F.3d 310, 317–18 n.6 (3d Cir. 2020); Swain v. Junior, 961
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F.3d 1276, 1294 n.10 (11th Cir. 2020); Valentine v. Collier,
956 F.3d 797, 805–06 (5th Cir. 2020).
Plaintiff-appellees’ arguments to the contrary are based on
their having joined with the civil action a claim under habeas
corpus challenging the fact of their confinement. While the
allegations of the complaint may not be sufficient to support
the claim of habeas in any event, which we need not currently
decide, the joinder is hardly adequate to defeat the plain
meaning of the statute. We have frequently stated that Congress
says what it means and means what it says. In this statute
Congress clearly meant for preliminary injunctions in civil
actions respecting prison conditions to last no longer than 90
days. In this case the 90th day ended on September 16, 2020.
Congress meant this so strongly that it made out very specific
conditions under which the limitation to 90 days would not
apply. These conditions were the findings that everyone agrees
the district judge did not make. Appellees would have us hold
that after having gone to this trouble with specificity to state
exactly what it meant, Congress sub silentio created a further
exception to its clear meaning for any case in which creative
plaintiffs added a second claim. We can hardly accuse
Congress of such roundabout drafting. We have stated before
that Congress does not hide elephants in mouseholes. Am. Bar
Ass’n v. FTC, 430 F.3d 457, 467 (D.C. Cir. 2005) (quoting
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001)).
In this case, we are not going to hold that Congress enumerated
the mice and then unleashed an invisible elephant to trample
the field. Indeed, our precedent avoids sanctioning strategic
pleading used to evade the Prison Litigation Reform Act’s
requirements. See In re Smith, 114 F.3d 1247, 1250 (D.C. Cir.
1997) (“[I]t would defeat the purpose of the [Prison Litigation
Reform Act] if a prisoner could evade its requirements simply
by dressing up an ordinary civil action as a petition for
mandamus or prohibition or by joining it with a petition for
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habeas corpus.”); see also Blair-Bey v. Quick, 151 F.3d 1036,
1041–42 (D.C. Cir. 1998).
As we noted, the allegations attempting to allege habeas
may not be sufficient to clearly state a habeas corpus claim.
Habeas corpus tests the fact or duration of the confinement,
rather than conditions. Again, though, we need not decide
anything with reference to that claim. We only determine that
such a claim cannot change the nature of the actions to which
it is attached.
Therefore, we hold that appellants’ claim of mootness is
well taken, and we dismiss the appeals of the order imposing
the preliminary injunction and the order denying the motion to
vacate the injunction based on changed circumstances. We
will, however, remand the cases for any further proceedings
that may be necessary to determine the viability of any
remaining claims.
So ordered.