Miller v. French - Oral Argument

Argument of Jon Laramore

Chief Justice Rehnquist: We'll hear argument first this morning in No. 99-224, Charles Miller v. Richard French, consolidated with 99-582, United States v. Richard French.

Mr. Laramore.

Mr. Laramore: Mr. Chief Justice, and may it please the Court:

The case addresses the automatic stay provision of the Prison Litigation Reform Act.

The full text of the United States Code section may be found at page 1 of the appendix to our certiorari petition.

The automatic stay is designed to effectuate other provisions of the PLRA...

Chief Justice Rehnquist: Mr. Laramore, let me ask you one procedural question.

The State's motion to terminate this injunction was filed in 1997?

Mr. Laramore: Yes, Your Honor.

Chief Justice Rehnquist: And in your brief you say it's set for hearing on the merits in June of 2000.

Is there any explanation for the 3-year delay in that?

Mr. Laramore: The case... there was no action on the motion to vacate during the entire time the appeal pended in the Seventh Circuit, and once the appeal was concluded in the Seventh Circuit, the district court judge...

Chief Justice Rehnquist: But it would seem the appeal would have nothing to do with going ahead with the motion itself.

Mr. Laramore: Well, we don't disagree with that.

The district court, though, did not set a hearing on the motion...

Chief Justice Rehnquist: For 3 years.

Mr. Laramore: until after the appeal was... was completed.

That hearing date was then... the initial hearing was set... the hearing was initially set for last December, and it's now been extended until June of this year.

Justice Ginsburg: Did you request...

Justice Breyer: Why didn't you ask for mandamus?

Mr. Laramore: Our... our appeal was pending at that point in... on the merits of the automatic stay issue, and we chose not to go the mandamus route given how procedurally complex that would have made the case at that point.

Justice Ginsburg: Mr. Laramore, did you ask the district court to proceed during the pendency of the appeal to the Seventh Circuit?

Mr. Laramore: We did not formally make that request of the district court.

Justice Ginsburg: You didn't ask the district court.

You truly have no basis for going to mandamus a court to do something that you didn't ask it to do.

Mr. Laramore: Well, that's right, and we... it was our understanding that the district court... without it having made a formal request, that the district court wanted to wait until the appeal was concluded.

Justice Scalia: Well, I suppose you had no interest in having the case mooted, did you?

Mr. Laramore: Well, we are interested in...

Justice Scalia: Which would have been the situation I suppose if the district court had proceeded...

Mr. Laramore: That would have perhaps mooted this case...

Justice Scalia: and... and had given you what you wanted.

Mr. Laramore: That would have perhaps mooted this automatic stay issue, although perhaps not under the doctrine of capability of repetition but evading review.

At any rate, the automatic stay is designed to give district courts incentives to move quickly on motions to terminate injunctions in prison cases.

The Seventh Circuit invalidated the automatic stay, found it violating... found it to violate separation of powers concepts.

But the automatic stay is constitutional for several reasons.

First, the automatic stay does not affect the underlying judgment.

It merely addresses in a temporary way district courts' prospective equitable power, and it only does so after the district court already has had 90 days to act on the motion to vacate or the motion to terminate.

Justice Ginsburg: Mr. Laramore, I didn't... I know that's your argument, but I didn't follow it entirely because it seems to me if you suspend the decree and it doesn't become operative again until all the findings that have been made... all the findings required by the new act had been made, how is that different from just starting fresh and making those findings?

It seems to me to say suspended is kind of a euphemism for terminated because you don't get it back again unless you establish what you would have to establish to get a decree under the new law in the first place.

Mr. Laramore: It is correct that the injunction only continues if the district court finds that it's necessary to correct an ongoing constitutional violation.

So, you're correct in that sense.

And... and the point I'm making is a... a formalistic point in a sense that it's... that the judgment is not... that the automatic stay does not act directly on the judgment, but acts only on the district court's prospective equitable powers.

It does mean that the prisoners are not able to take advantage of the injunctive portion of any existing order during the period of the suspension.

Justice Scalia: What does the judgment say?

The judgment says that the State was in violation.

Right?

And the rest is remediation.

Mr. Laramore: Yes.

Justice Scalia: What it prescribes to remedy that violation is... is not... is not part of the judgment.

It's part of the remedy I assume.

Mr. Laramore: It is part of the remedy, yes.

Justice Stevens: But it's part of the judgment too.

That's what the judgment is.

It includes the injunction, doesn't it?

Mr. Laramore: Well, it certainly...

Justice Stevens: I never heard of this suggested distinction between remedy and judgment if the remedy is part of the judgment.

Mr. Laramore: And certainly this statute is aimed at dealing with the remedial portions of... of...

Justice Scalia: Yes, but... but you say... you say...

Mr. Laramore: however we describe it.

Justice Scalia: that the... you say that the... if you agree with that, then... then you must retract your assertion that... that Congress can, in fact, change the remedies that are available for the future.

In the case of... of an injunction that operates prospectively, your position is that Congress has the power to change the ability of the court to impose certain remedies in the future, so long as Congress does not violate the Constitution.

Mr. Laramore: Yes.

Justice Scalia: Well, if that's the case, then it can't be part of the judgment.

Mr. Laramore: I'm not sure that I precisely agree with what you said.

Congress can direct the judicial branch to reexamine the judgment itself and... and impose upon it new standards such as the standards that are in part (b) of this... of this portion of the Prison Litigation Reform Act.

What the automatic stay does doesn't direct the judicial branch to do anything.

It has... it causes the motion to vacate itself to act automatically as a stay of the injunctive portions of the judgment prospectively.

Chief Justice Rehnquist: I'm not... I'm not sure the term judgment is quite accurate here.

A judgment traditionally... it's... you get a money judgment from... from a common law court.

I think traditionally you get a decree from a court of equity, which... you know, that's more like the Rufo case...

Mr. Laramore: Yes.

Chief Justice Rehnquist: which came up from the First Circuit, rather than like the Plaut case which I think was a... a judgment.

Mr. Laramore: Yes, I think that's exactly right.

And... and...

Justice O'Connor: But just to explore this a little further, let's suppose the lawsuit was brought by the prisoners and it was determined by the court that the prison was putting six people in a single cell room that would properly hold only two and that it was a violation of the Constitution, making it cruel and unusual punishment, and further, that the prison was providing only 1,000 calories of food a day, whereas to sustain normal weight and life, 2,000 calories a day were required.

Now, let's just take that as an example.

Finding a constitutional violation and entering a decree that that must be remedied by reducing it to two people to a cell and increasing the food.

Now, you say that Congress can come in and automatically end that order for relief based on the motion by the State, that that's okay, that that does not invoke the concerns that the Court expressed in Plaut with interference with the judgment of a court in a decided case.

Mr. Laramore: Justice O'Connor, I... I think I would describe our position somewhat differently than that.

We say that it's appropriate for Congress to... to change the remedial law as it has done here and to require the courts to apply the changed remedial law to existing decrees.

And how that would apply in... in the case that you describe is that the State would make a motion and it would say, we no longer need to have this injunction that says we can only have two people in a cell and... and 2,000 calories...

Justice O'Connor: Well, you don't have to say anything.

You... all you have to do is file a motion under this PLRA and say, we file a motion to terminate the ongoing relief.

Right?

Mr. Laramore: Right.

Justice O'Connor: Okay.

Mr. Laramore: And that shifts the burden.

That's where the substantive change has occurred in this case.

Justice Kennedy: Well, in... in your answer to Justice O'Connor that... that you just gave explaining the authority of the Congress to, for want of a better term, modify the terms of the decree, I kept waiting for you to use the term prospective.

And you seemed almost careful not to do that.

I... I thought you were going to say that this is...

Mr. Laramore: No.

I certainly didn't avoid that on purpose.

Justice Kennedy: this is a prospective...

Mr. Laramore: Yes.

Justice Kennedy: operation of... of a statute.

It does not undo previously adjudicated rights in the sense that a money judgment would be...

Mr. Laramore: That's exactly right, Justice Kennedy.

And... and, of course, this is a prospective statute in that it applies to any decrees entered in the future as... and... and Congress has also set up the mechanism to apply the same standards to decrees that are already in existence...

Justice Scalia: But, Mr. Laramore, it seems to me that in order for you to prevail, you have to establish the initial proposition that constitutional issues aside, which Congress lets the court resolve during that 90-day period... constitutional issues aside, Congress has the power to eliminate a remedy that has been prospectively imposed by a court.

Let me pose a simple example that doesn't contain a constitutional problem.

Suppose Congress passes a law that says that Federal courts will not have authority to impose injunctions against competition in any cases under Federal statutes alleging violation of some... some business... business rights, that in the future, Federal courts will not have the power to enjoin competition.

All right?

Mr. Laramore: Yes.

Justice Scalia: And the statute specifically says, any injunctions already in effect, enjoining competition for the future, will be dissolved.

Is that law valid?

Mr. Laramore: Plainly I think the prospective portion of it applying to injunctions not yet issued is valid.

Justice Scalia: Oh, sure.

Mr. Laramore: And then the question I think becomes...

Justice Scalia: Come on.

Answer the hard question.

Mr. Laramore: a formalistic one whether... whether Congress may pass a law that says those injunctions are no longer valid as... as it did in the Telecommunications Act as to some of the existing injunctions, or whether it must do what it did in this case, which is to say, courts must evaluate those injunctions and apply the new standards to those injunctions but...

Justice Scalia: Well, I don't think it has the power to give the courts 90 days and say, if you don't do it in 90 days, they're no longer invalid unless it has the power to invalidate them.

Period.

That's... that's my... that's my point.

Mr. Laramore: Well...

Justice Scalia: And you're not willing to say that it has the power to invalidate them.

Mr. Laramore: It has the power to tell the... and again, this is... is perhaps too technical a way to express it.

But it has the power to tell the district courts that they can no longer enforce those injunctions, which may be the same as invalidating the injunctions.

Justice Ginsburg: You answered my question to say that it was, once it's suspended, apart from the label.

It's like starting the case all over again.

But to... to continue Justice Scalia's line of questioning, does the 30 days, extendable to 90 days, mean anything?

On your theory of the case, couldn't Congress have simply said, as of the day this new law goes into effect, all bets are off, any prison litigation has to start anew with a fresh complaint and meet the standards that we set in this new law?

Mr. Laramore: Yes, as a matter of separation of powers.

Justice Ginsburg: So, is there anything on... anything that's constitutionally required by giving the district court any time at all in your judgment?

Mr. Laramore: Well, Judge Easterbrook says in... in his dissent that there may be a due process element involved here, although I suggest that that is not such an issue here as long as there are other methods that prisoners can use outside of this injunctive...

Justice Ginsburg: Well, I...

Mr. Laramore: to vindicate their rights.

Justice Ginsburg: prison litigation where the finding has been made not just that there is a violation of the Eighth Amendment, but that there is a violation of the Eighth Amendment in this and that and the other particular...

Mr. Laramore: Yes.

Justice Ginsburg: as Justice O'Connor spelled out.

And a court has made that finding, that it violates the Eighth Amendment in these particulars and then Congress can say, never mind that.

During the interim, the decree is out of... out of force entirely.

That... there has been a finding of a constitutional violation...

Mr. Laramore: Yes.

Justice Ginsburg: specific ways.

I don't think that anyone has questioned, at least in this litigation, the (e)(1) of the statute that says, district courts, act promptly and if you don't act promptly, you can be mandamused by the court of appeals.

Mr. Laramore: Yes.

Justice Ginsburg: But to say no matter how complex the case is, you have 30 days or 90 days, I don't know of any legislation like that, do you?

Is there anything... any other statute like that that says...

Mr. Laramore: There's no other statute that we've found that acts in that way on an existing judgment.

Justice Ginsburg: Yes.

Mr. Laramore: There are, of course, other provisions with time limits that have consequences such as the Speedy Trial Act and pre-trial detention...

Justice Ginsburg: Yes, but the result of the Speedy Trial Act...

Mr. Laramore: Yes.

Justice Ginsburg: is the defendant can't be tried.

And here it's the prisoners get their judgment taken away from them.

Mr. Laramore: But I do want to highlight two portions of the statute that seem to be missing from the example that... that you've given and that Justice O'Connor maybe began.

Two things.

One is that this statute only applies at this point to injunctions that are quite old.

All of them must be now at least 4 years old because that's how old the act is.

So, we're talking about situations where there has already been a judgment in place for a lengthy period of time.

We would expect that either the prison has conformed its conduct to the Constitution at this point or the prisoners would be back in court seeking enforcement, seeking contempt and that sort of thing.

Justice Stevens: Yes, but that doesn't really answer Justice O'Connor's problem because if your reading is correct, after 30 days, they could put six people in each cell, even though they only had two during the 4-year period.

Mr. Laramore: Well, they could.

Justice Stevens: Isn't that right?

Mr. Laramore: There would be no injunction prohibiting it, but...

Justice Stevens: Well, that's my point.

So, they could do it.

Mr. Laramore: They could do it.

But, of course, then the prisoners at that point can use the provisions of 3626(b)(3) and get their permanent injunction back at that point.

They could also use the temporary injunction provisions of the statute.

Justice Stevens: Yes, but until they get that provision back, the State could legally say, we'll put the six people back in the shell... in the... in the cell until we get the litigation resolved.

Mr. Laramore: Yes, but let me point out one other...

Justice Stevens: They might not do it, but I'm just trying to think of the...

Mr. Laramore: But one... one other thing about that, Justice Stevens, is that the standard of conduct is set in that judgment and that standard of conduct remains because the automatic stay doesn't erase the judgment.

So, if... if the State went ahead and put six people in the cell, that... there would... there could be a damages action by those prisoners against prison officials in their individual capacities and qualified immunity would certainly not apply because the State has already said that six people in the cell is unconstitutional.

So... so, there's that incentive on the State as well.

Justice Ginsburg: But it hasn't... Mr. Laramore, under the new standard, they have... they said it's unconstitutional, but they haven't said it's the least... that the... the order is the least intrusive way to do... to take care of it.

Mr. Laramore: That's...

Justice Ginsburg: Maybe it's unconstitutional but attrition or something like that.

Mr. Laramore: Well, I... I understand the question, Justice Ginsburg, but I don't think that that... that those requirements for narrowness and least intrusiveness go to the substantive constitutional finding that six people in a cell is unconstitutional.

Justice Stevens: No, but the point would be that six people may... say they put three in.

Mr. Laramore: Yes.

Justice Stevens: And they would argue two was a broader remedy than necessary.

Three would have done it.

So, they go ahead and put three in, and then they... they... but they surely do that.

Mr. Laramore: Yes, they could do that.

Justice Stevens: And then fight about whether...

Mr. Laramore: And that could be the subject of later litigation, but... but that's...

Justice Scalia: Well, they couldn't do that.

I mean, they couldn't do that.

That would... if that was unconstitutional.

Mr. Laramore: Well, that's... that's right.

Justice Scalia: If it was unconstitutional, it would be unlawful, just as it would be unlawful if the injunction remained in effect to disobey the injunction.

You're really just talking about whether you're going to have two laws prohibiting this unlawful action or just one law prohibiting this unlawful action.

Mr. Laramore: Yes, and I answered Justice Stevens' question the way I did with the understanding that three in a cell had not been adjudicated...

Justice Stevens: Well, but there's an argument about it.

My point is the guards would have a... a good faith defense.

They thought three was okay.

Do you... you would have to litigate out whether or not it was unconstitutional before you'd know the answer.

Mr. Laramore: That's correct.

Justice Stevens: Yes.

Justice Souter: May I go back to your... your proposition that started this discussion, that somehow it's relevant that these decrees are at least 4 years old?

And for constitutional purposes, I don't know... 4 years old I guess.

For constitutional purposes, I don't know why that is relevant.

Don't we make the... don't we have to operate on the presumption that an order in equity, which is outstanding, is in fact an appropriate order until a contrary adjudication has been determined?

And isn't that presumption just as good for a 4-year order as a 4-month order?

Mr. Laramore: In passing these portions of the Prison Litigation Reform Act, Congress was addressing a problem that it perceived which was...

Justice Souter: Well, I... I don't want to be picky about your form.

I recognize that.

But what about the answer to my question?

Don't... don't we have a presumption of validity which is just as good for 4-year as for 4-month or 4-day orders?

Mr. Laramore: I think that the answer to that is that that's a question of substantive law that Congress could alter.

Congress could, for example...

Justice Souter: Congress could pass a statute, for example, saying all decrees of... of a court of otherwise competent jurisdiction are presumed to be invalid?

Mr. Laramore: Well...

Justice Souter: Unnecessary?

Could Congress do that?

Mr. Laramore: Congress I think could go so far as to say in a prospective manner that injunctions in prison cases, for example, would expire after a particular period of time...

Chief Justice Rehnquist: Thank you, Mr....

Mr. Laramore: unless the contrary showing was made.

Argument of Barbara D. Underwood

Chief Justice Rehnquist: Thank you, Mr. Laramore.

Ms. Underwood, we'll hear from you.

Mr. Underwood: Thank you, Mr. Chief Justice, and may it please the Court:

In light of the rule that it takes a clear statement to deprive a court of its traditional equitable powers, the PLRA's automatic stay, 3626(e)(2), does not remove a court's traditional equitable power to prevent irreparable harm while an action is pending.

When prison officials move under the PLRA to terminate prospective relief, the (e)(2) stay comes into effect in the ordinary case if the termination motion can't be resolved in 30 or, on extension, 90 days.

But nothing in the statute purports to strip a court of its power to grant extraordinary interim relief to either party if it finds the party is likely to succeed on the merits and will otherwise suffer irreparable harm, but it will take more than 90 days to decide the motion.

And construing the statute to take away that power, of course, would raise the serious constitutional question about the power of Congress to suspend a final judgment of an Article III court without giving the court any role in the process.

Several features of the statute support this interpretation.

First, the words, automatic stay and the motion shall operate as a stay, are commonly used to describe a default rule for the normal case, the rule that governs unless a court decides otherwise, not a rule that courts can't change.

There are other automatic stays in the law.

The bankruptcy stay was apparently the model for this.

Federal Rules of Civil Procedure establish an automatic 10-day stay of judgment in many cases, and as one Senator noticed in discussing this provision, it's common under State law for the State to get an automatic stay pending a government appeal.

Justice Scalia: But none of... none of these other examples that you allude to were enacted for the very purpose of inducing the court to which the stay applied to act quickly.

None of those examples had that purpose in mind, did they?

Mr. Underwood: That's...

Justice Scalia: I mean, the bankruptcy stay, for example.

The purpose of it isn't to hustle the... the courts that have litigation pending to... to get the litigation out of the way quickly.

Mr. Underwood: No.

I think that's right.

I'm simply pointing that the... to the fact that the use of the language, automatic stay, or the term, a motion shall operate a stay, is conventional legislative usage.

Justice O'Connor: Well, but I read the language in 3626(e)(2), any motion to modify or terminate prospective relief shall operate as a stay, as unambiguous.

And I read this whole thing as a clear indication by Congress that it wanted to do exactly what the State was arguing ought to be done.

Mr. Underwood: Well, to...

Justice O'Connor: And that's automatic.

Now, let's say we read it that way.

Is there a constitutional violation?

Mr. Underwood: Well, I think there is a... a serious constitutional question.

Justice O'Connor: You said that, but is there a violation if we read it as a clear intent by Congress to have it operate just the way the State says?

Mr. Underwood: Well, while we think it's difficult, on balance, as we've said in our... in our brief, we think that it can be constitutionally defended because it operates only on prospective relief and this Court's precedents permit a change in law to affect prospective relief even in what is otherwise a final decree, an injunctive decree, and because it doesn't...

Justice O'Connor: examples of... a congressional interference that would be upheld.

Mr. Underwood: Well, Wheeling Bridge is an... is the sort of the classic example of a case in which there was a final decree prohibiting... initially requiring the taking down of the bridge, and then it would have been... would... prohibited its... its rebuilding.

Justice Kennedy: Of course, there... there it was almost like a property right, a navigation servitude that the United States had the... could surrender at its will anyway.

Do you have another one?

Unidentified Justice: [Laughter]

Justice Kennedy: I... I looked and I thought Wheeling was the closest, but I think it's quite distinguishable.

Justice Scalia: It was a navigational servitude?

Mr. Underwood: I'm not sure I would call it a navigational servitude.

There... there had been a determination that the bridge obstructed commerce, interfered with interstate commerce, and Congress decided in fact it advanced commerce rather than interfering with it.

I'm not sure that it was a right of the United States.

I mean, I don't think this is like the... the Sioux Nation situation, for instance, in which the Government is actually giving up its own right.

It changed the regulatory regime about the relationship of bridges to navigation and...

Chief Justice Rehnquist: On behalf of private parties or nongovernment...

Mr. Underwood: The way it operated in... in that case on behalf of private parties.

And it was then appropriate for the injunction... for the... for the prospective relief to take account of the change in the law.

It's also the case, although this wouldn't be legislative, that... that the modification of the decree in Rufo was... meant to take... was appropriate to take account of... of changes in law and... and this Court's decision in Agostini reflected the appropriateness of modifying prospective relief to take account of changes in law.

Justice Ginsburg: Ms. Underwood, those were all cases where the court made the adjustment required by the new law, and that's what (e)(1) of this statute does.

It says, court, act promptly and if you don't, the court of appeals can look over your shoulder.

I... I asked Mr. Laramore was there any statute that says, court, no matter how complex the decision is, if you don't meet the 30 days, extendable to 90 days, then the winner becomes a loser.

I don't know any statute that operates that way, rather than saying to the court, act promptly but we're not going to turn the winner into a loser if you don't.

Mr. Underwood: Well, I don't know any statute that operates that way either, and that's why we think this is a difficult constitutional question.

There is no statute just like this.

Justice Scalia: Do you know... do you know... do you know any... any judicial injunctions just like this, that permanently control the operation of an entire agency of State government indefinitely?

Mr. Underwood: Well, they don't...

Justice Scalia: I mean, extraordinary... extraordinary problems may... may require extraordinary solutions.

I'm unfamiliar with any other injunction by courts that... that manage an entire department of State government.

Mr. Underwood: Well, I don't know that this manages an entire department of State government, and...

Justice Scalia: How many prisoners in the cell, how many... you know, what food they're to eat...

Mr. Underwood: And...

Justice Scalia: what access to libraries and so forth.

Mr. Underwood: And even before the PLRA, there was available a motion to modify under... under the Federal Rules of Civil Procedure.

This prescribes new standards and a new procedure for dealing with it, but the court... but... but it's not a new problem that injunctions may require modification to deal with changing circumstances.

Chief Justice Rehnquist: I... I would think Congress also could find here that many State agencies really were quite happy under... under these injunctions.

They could go to the judge and get their appropriation, rather than go to the legislature.

Unidentified Justice: [Laughter]

Chief Justice Rehnquist: So that Congress could treat it as a special case.

Mr. Underwood: Congress did treat it as a special case.

And the question is whether in doing so and taking the court out of the process, not only modifying the rules and modifying the... the remedy, but doing so without the intervention of a court, Congress has crossed a constitutional line.

There... there is no precedent that I know of for it, and that's... and we urge that the statute be construed not to do that not only because of the constitutional principle but also because this Court's precedents consistently say that courts should not be... that Congress should not be read to have taken away a court's equitable...

Chief Justice Rehnquist: What are those precedents...

Mr. Underwood: powers.

Well...

Chief Justice Rehnquist: I mean, just a couple of them perhaps.

Mr. Underwood: In Scripps-Howard, the Court... there was a statute that provided for stays pending appeal of certain FCC orders and not for others, and this Court held that the appellate court still had its traditional power to grant stays in the second class of cases, the class that the statute didn't authorize stays for.

And in Honig, a statute provided that during the dispute over the placement of a disabled child, the child shall remain in the then current placement during the proceedings.

This Court called it an automatic injunction, rather like the automatic stay in this statute.

And yet, the Court held that the district court still had its traditional equitable power to lift that automatic injunction and make its own determination about the equitable needs for interim relief while the matter was pending.

Justice Scalia: But those laws again, like the other stays you mentioned earlier... the purpose of them was... was... it was not directed against the anticipated lassitude of the... of the district judge, to whom you want to give this power to... to suspend the stay.

Mr. Underwood: Well, the Court has... the Congress has provided another mechanism for expediting review that was discussed earlier; that is to say, it specifically directed the district court to decide promptly and authorize mandamus for a failure to decide promptly.

I don't think that it follows from that that it also intended during what might be a short time or it might be a long time, but would be a time beyond the 90 days provided by the statute, that if it took longer than that to resolve the matter, that constitutionally... relief that had been ordered by a court for a constitutional violation and whose termination might cause irreparable injury... and we're talking now... if we're talking about standard equitable powers, we're also taking about a determination that at least the prisoners have a probability of success on the merits.

The court might not be prepared to find that there should be no termination, that the motion should continue, but it would have to find, for injunctive relief, that they had a probability of success on the merits and that lifting the... the existing decree would threaten irreparable harm.

It would make a judgment about the balance of harms, that in that case Congress intended essentially to cause irreparable injury.

Justice Scalia: Ms.... Ms. Laramore, may I ask you the question I... I asked... Ms. Underwood, may I ask you the question that I asked Mr. Laramore?

What if Congress passes a law saying that a particular category of injunctions, some of which are out there already, is no longer permissible and all outstanding injunctions which... which violate that provision are dissolved?

The example I gave was no injunctions against competition.

Mr. Underwood: Well, if you... and if you take out the question whether the Constitution...

Justice Scalia: Yes.

Mr. Underwood: might independently require that...

Justice Scalia: Yes.

Mr. Underwood: that injunction, I think Congress has the power to alter the law of remedies that is applicable.

Whether it has the power to simply declare those injunctions void, as distinguished from sending the matter back to a court for a court to determine whether its standard is met, is another question.

And...

Justice Scalia: Well, my question is it simply says, those injunctions shall no longer be effective.

It's not a matter of any standard being met.

This is no longer one of the powers we give courts for the future in this kind of case, and therefore, for the future in... in these cases, those injunctions are no longer effective.

Period.

Is there anything wrong with that?

Mr. Underwood: I think Congress could do that.

Justice Scalia: I think it could too.

Justice Breyer: Is... to go back a minute to your statutory argument.

Mr. Underwood: Yes.

Justice Breyer: I... I really wanted to hear the other side on this, but I might... I mean, the... the... you... you point out, I think correctly, that the operating language... it's the words, shall operate as a stay.

Those are identical to the words in the bankruptcy statute.

It says, operates as a stay.

And there's nothing in the statute, as you point out, that suggests it shouldn't operate like any other stay.

And there's lots that suggest it should.

But there is the problem of purpose, and in terms of purpose, I'd like to know the following.

I'm familiar with one prison decree in Puerto Rico.

That was 20 judicial opinions, 20 years, 10 institutions, health, mental health, overcrowding four or five times the... the proper number in a cell, et cetera, $ 70 million in fines, special masters, complicated beyond belief.

I don't believe it's conceivable that you could deal with something like that in 90 days.

Now, at the other extreme, there are ones you probably could.

You've looked into them.

Is my characterization of Puerto Rico correct, and if so, are there others that just couldn't be done in 90 days?

I mean, is... if that's a big problem, then I would think probably Congress didn't want to clear them up in 90 days, but just wanted to speed things up.

If it's not a big problem, it becomes more plausible that what they wanted to do was end everything in 90 days.

So, empirically what are we dealing with?

Are we dealing with a world where it's very unlikely Congress, which is not... which we assume... and it does normally do things that are reasonable... doesn't want to ask district judges to do the impossible?

Mr. Underwood: Well, I'd like to say two things in answer to that question.

One is that the... there are injunctions that are enormously complicated that could not possibly be totally resolved in 90 days, although it might be that parts of them could be.

There's... there's nothing to prevent courts from addressing a termination motion piecemeal or, indeed, from... to prevent the State from seeking to terminate a piece of the injunction, an aspect of it, the medical care part of it, or some other part of it.

But, yes, there is a... there are... there are numerous injunctions that have the kind of complexity that would make a 90-day resolution difficult.

The other thing I want to say about this notion that Congress... the statute might be interpreted as simply cutting everything off and requiring the prisoners to start again is that that's what Congress rejected.

An earlier draft of this statute would have done exactly that and... and there have been bills since then to do that, to say all injunctions will terminate in 2 years.

In fact...

Justice Ginsburg: Ms. Underwood, is... one... one part of your argument you say if for the interim you can meet the preliminary injunction type standards, irreparable harm, probability of success on the merits, then you can keep the stay in effect.

But one of the amici...

Mr. Underwood: Keep the decree in...

Justice Ginsburg: Yes.

One of the amici in this case said that this new legislation provides for a preliminary injunction.

And as I see that provision, the standards are identical to what you're urging is necessary to keep the decree in force, irreparable harm, probability of success on the merits.

And yet, in the new act that comes with a time limit.

A preliminary injunction can remain in force only 90 days.

So, tops you could have 180 days.

Mr. Underwood: Well, we think it's implausible that the (a)(2) preliminary injunction applies to termination motions for just the reasons that I was starting to say.

That is, originally this... this statute was in the form of a bill that said all injunctions terminate in 2 years.

There was not only an automatic stay, but there was an automatic termination, and everyone did have to start all over again with an application for new relief.

And that... there was serious criticism in hearings and so forth of that bill, and Congress amended it.

And the statute they enacted distinguished sharply between termination motions... between the termination process and the initial relief process.

And the termination process is now no longer just termination.

It's a decision whether to terminate or continue the injunction.

And that's in (v) and so forth of the statute.

And the (a) provision, which contains the preliminary injunction, applies to applications for new relief.

So...

Justice Scalia: Ms. Underwood, are we talking here about serious... serious problems?

I mean, don't you think that even when the injunction is dissolved after 90 days, the State would be very loathe to change anything set forth in the earlier injunction that it was not absolutely sure would comport with the new... with the new standard set forth in the new legislation?

It would still be unconstitutional and therefore unlawful to do anything that would violate the constitutional rights of the prisoners, wouldn't it?

Mr. Underwood: Yes, but there are differences of opinion about what is unconstitutional.

Justice Scalia: Exactly, but it will be... the State will be at risk with respect to that difference of opinion when there... when there is... there had been an injunction which is now dissolved.

Mr. Underwood: Well, I'm not sure it would be at risk with respect to liability.

But in any event, predicting what the State is likely to do in the interim I suppose is a part of ordinary equitable considerations.

I suppose if the State made some representations about what it was likely to do, that might make interim...

Justice Breyer: And if the Commonwealth has paid $ 68 million rather than comply, you think they suddenly will comply when there's no... when there's no decree in effect?

Mr. Underwood: I'm not suggesting any particular prediction about what various State officials would or would not do and suggesting, rather, that courts' traditional equitable powers, precisely designed to deal with the likelihood of irreparable injury in a particular case to a particular set of prisoners under a particular decree in a case with a particular history...

Justice Ginsburg: Ms. Underwood, on your Bankruptcy Code analogy, there are provisions that Congress made for modification of the stay.

And that seems to me is... is conspicuously absent here.

Automatic stay is used in both, but the Bankruptcy Act says the court can modify it, it can place conditions on it.

Mr. Underwood: Every other automatic stay can be lifted by a court.

This automatic stay contains, sometimes under expressed conditions, sometimes under just... just general equitable authority... this automatic stay does not contain a provision authorizing a court to lift it and it does not contain a provision prohibiting a Court from lifting it, and that's why we think...

Argument of Kenneth J. Falk

Chief Justice Rehnquist: Thank you, Ms. Underwood.

Mr. Falk, we'll hear from you.

Mr. Falk: Mr. Chief Justice, and may it please the Court:

In section 3626(e), as interpreted by the Seventh Circuit, Congress imposes an automatic stay on a final judgment which cannot in any way be modified.

This is a legislative suspension of a final judgment.

This does...

Justice Ginsburg: But you will... it's not a judgment at law.

It's an equity decree that is ongoing.

And surely, one characteristic of an equity decree of this kind is it is modifiable.

Mr. Falk: Of course, that is correct.

And... and Wheeling Bridge is, at least the initial case, that talked about that.

And in Wheeling Bridge, this Court's holding was that if Congress produces new substantive law which modifies the substantive law upon which the prospective relief is modified... is based, then the prospective relief can be modified.

But in this case, there is no new substantive law.

It is merely Congress saying at a point certain we are requiring that this stay be entered.

And really...

Justice Souter: May... may I interrupt you here?

Mr. Falk: Yes.

Justice Souter: What if the... the point that you referred to were not, we'll say, 90 days?

Let's assume it was 2 years.

Everything else is... is the same in the statute except there's a 2-year grace period following a... a request for termination.

Would you find a constitutional question here?

Mr. Falk: I think there would still be a question under Plaut because you would still be taking a final judgment at some point and saying... Congress stepping in and saying, we are modifying it.

However...

Justice Souter: You would also be giving what I think most of us would assume would be an adequate opportunity...

Mr. Falk: Exactly.

Justice Souter: to review the continuing necessity for even a very complicated decree.

Mr. Falk: Exactly.

Justice Souter: So, you could say in... in the 2-year example, that... that it was in fact operating simply as a rule for default of... of a perfectly appropriate judicial process.

Mr. Falk: Yes, and if you... and we view... we view the separation of powers as a functional test, is Congress invading the central prerogative of the courts.

If Congress gives a court an unreasonably short deadline, a deadline which in some cases cannot be met, then obviously that is an invasion because after that...

Justice Souter: No.

I was going to say, so it boils down to a question of time then.

Mr. Falk: Well, yes, it does, but it also boils down...

Justice Souter: It's a fact question.

And... and I think we all... I mean, Justice Breyer suggested I think a moment ago and we would... I imagine you would agree that there are going to be some decrees covered by the statute in which 90 days will be entirely adequate for the kind of review, and probably they're going to be some in... in which it would not be.

But it... it comes... it boils down to a question of time in each case, doesn't it?

Mr. Falk: Well, that's correct.

However, what the passage of time affects, what happens after the end of that period is Congress stepping in, without having any new law, without...

Justice Souter: True.

But in the 2-year example, assuming the court just fools around, we would not find it a... a... I take it you would not find it a separation of powers violation...

Mr. Falk: I think...

Justice Souter: if the court is simply inactive.

Mr. Falk: I think it will be much more problematic.

On the other hand, I also...

Justice Scalia: Why do you say more... you're talking about due process then, not separation of powers.

If... if the change in time is... is the crux for you, all you're talking about is whether... whether Congress has provided enough time for these people to have the court make the proper decision.

Mr. Falk: No, I don't think so.

And I don't think the change of time is relevant, as I said, under Plaut.

If Congress today...

Justice Scalia: Exactly, but that's not just what you told Justice Souter.

It seems to me you have to take the position... if you don't want us to treat this as a... as a due process, you have to take the position that even if it was 10 years, Congress simply has no power to terminate a judicial decree without a change, as you say, in the substantive law.

Mr. Falk: And I think... I think obviously the more time Congress gives, the less chance there is there are going to be problems and the more we're going to want to give Congress that limited ability to enter into...

Justice Scalia: You're going back again.

The less chance there will be due process problems, but the chance that there will be a... a separation of powers problem is still 100 percent...

Mr. Falk: There is...

Justice Scalia: assuming the situation arises.

Mr. Falk: That's correct.

There's a Plaut problem with the statute no matter how much time is given, but... but from a general...

Justice Souter: Well, if... if Congress... if... take the 2-year example again.

I think we would probably read the statute as... as including the following mandate from Congress to the judicial system.

It is now the law of remedies for a court sitting... Federal court sitting in equity, remedying constitutional violations, that there must be some kind of a current review mechanism so that decrees do not run on unnecessarily.

Anything unconstitutional about that per se?

Mr. Falk: No.

Justice Souter: Okay.

We're also assuming in the 2-year example that... that Congress, in... in changing the law of remedies, gives a court an adequate time to engage in the review.

We... we assume 2 years would give them time to review any decree.

Mr. Falk: Yes.

Justice Souter: So, I take it it would follow on... on your own argument that there would not be a separation of powers problem in that case.

Mr. Falk: Well, it depends what happens after the 2 years.

Justice Souter: At... at the end of the 2 years, Congress, in effect, is saying, if you, court, do not engage in a review for current necessity, which we're giving you plenty of time, 2 years, to do, then there will be a default rule.

It will be suspended until you get busy.

And do you... do you take the position that under those circumstances, 2 years, adequate time, change in law of remedies, the default rule would be a violation of separation of powers?

Mr. Falk: If it is applied retroactively to existing judgments, yes.

And I think we're back to Plaut.

The question there is can Congress reach in to a final judgment in the prospective equity sense without providing new law.

Chief Justice Rehnquist: But to simply carry over from Plaut, which was not an equitable decree, as I... to equitable decrees which have been traditionally revisable...

Mr. Falk: Yes.

Chief Justice Rehnquist: it seems to me is not an automatic step.

Mr. Falk: Well, they are revisable with new law.

And in fact, if... if we look at the historical...

Chief Justice Rehnquist: Well, I don't know that Wheeling Bridge is as clear as you say about the Congress having enacted a new law.

I... I think one can read it differently.

Mr. Falk: But... but still, if we look at Plaut, there was a concern of this Court's opinion in Plaut of what was happening at the time, both before and after the passage of the Constitution, with State legislatures sitting as super courts either directly reviewing judgments or passing legislation.

Some of those cases, at least as pointed out by the amicus in the... the Taylor amicus at page 5 of their brief, concerned cases in equity.

If there is an injunction...

Justice Scalia: Yes, but... but they didn't make distinctions between... between new legislation... new legislative action that involve what you call substantive law and new legislative action that alters the remedies available for courts.

Surely, those... that prohibition applied to both.

If you're dealing non-prospectively, certainly it's just as... just as bad to... to change the law, the substantive law, as it is to change the remedial law.

You have to let what... what's over the dam be over the dam.

But once you're into the prospective area, why should there be a distinction between a change in substantive law and a change in the remedies that the court is allowed to impose in the future?

I don't see the...

Mr. Falk: Because if Congress says to a court, you must suspend or even terminate this order, period, I don't think Congress is functioning as Congress.

Congress is functioning from a separation of powers standpoint in a judicial capacity.

Justice Scalia: But it can change the substantive law and say, you... you may not enforce this decree in the future because we're changing... we've decided we're going to change the law on you, that... that you... that was the basis for the decree?

Mr. Falk: Of course, it can and that's the function of Congress.

Justice Scalia: I don't see why you say of course for the one and not of course for... it's also the function of Congress... just as it is to enact substantive law, it is a function of Congress to enact laws prescribing the remedial powers of the courts within constitutional limits.

And that's... that's not... not the issue here, whether this is within the constitutional limits.

Mr. Falk: But...

Justice Scalia: Isn't that a fully legitimate legislative power of Congress?

Mr. Falk: But (e)(2) does not do anything.

It does not prescribe the remedial power of the court.

Justice Breyer: I thought it did.

I thought it did.

I thought that the... my understanding of this... and I'd like you to clarify...

Mr. Falk: Sure.

Justice Breyer: is that Congress introduced a new standard for all cases, and... or they thought it was new.

The standard would be that you can't go... you have to be narrowly tailored...

Mr. Falk: That's correct.

Justice Breyer: and you can't go beyond the... and it say that... you can't go beyond the Federal right that's infringed.

And... and it said, that applies to every new case that's ever going to be brought.

Mr. Falk: That's correct.

Justice Breyer: And it also applies to those in the old cases, but only in the future.

And now what we do is we have a 2-year period or a 10-month period or a 90-day period where, as we look at the prospective relief and bring it into conformity with the standard that's going to apply in the future for everybody.

Now, is that... is that how it works?

Mr. Falk: Well, that's how (b)(2) works, but that's not how (e)(2) works.

(e)(2) doesn't look to future standards.

(e)(2) says nothing about standards.

(e)(2) says no matter what you found, no matter what the court did, no matter how egregious...

Justice Breyer: Oh, yes.

Mr. Falk: the situation was...

Justice Breyer: So, but now... that's... that's the automatic stay, of course, which is the substance here, the issue.

But I was speaking in generally and in terms of the substance of the... in terms of the substance of the thing, how quickly you have to decide.

Is there any constitutional objection, do you think, if you were to interpret those words, shall operate as an automatic stay, like any other automatic stay and say that's subject to termination for good cause and with the burden shifted the other way, et cetera?

Mr. Falk: I'm sorry.

Is the question whether...

Justice Breyer: In other words, if you adopt the SG's interpretation of the words, shall operate as an automatic stay, then in your opinion is there still a constitutional problem?

Mr. Falk: No, but we do not feel that the statute is that pliable.

We think the intent of Congress is clear...

Justice Breyer: Why isn't it that pliable?

What they said... they used the same words as any other statute.

They have a set of appeals provisions that... that really don't make much sense unless you interpret it their way, and in addition, you have to assume an intent of Congress that they were asking at least some district judges to perform the impossible.

So... so, why... why wouldn't that be a perfectly reasonable interpretation of words that don't demand a contrary interpretation?

Mr. Falk: The purpose of the statute is to circumscribe the district court's discretion as greatly as possible.

Justice Breyer: Well, it's... well, is there anything in the legislative history that suggests that the SG's interpretation, which is consistent with the language, is not what Congress intended?

Mr. Falk: Well, the 1995 conference report discusses the fact that this was designed to make judges rule more promptly.

Now, that...

Justice Breyer: Well, more... absolutely.

This shifts the burden.

You have mandamus.

You couldn't delay 3 years.

You'd have to get this thing decided quickly, but you wouldn't be asking them to do what is impossible.

Mr. Falk: But the legislative history I believe... and there's not a... there's not a lot of legislative history, but the legislative history is replete with examples brought by prison officials and by representatives themselves of what they deem to be improper interference by courts.

Justice Breyer: Exactly.

And... and where that would be taking place, you would have an automatic stay.

It could be set aside only for cause.

You would have mandamus if the judge doesn't decide quickly, and you would have an immediate appeal.

All right.

So, we would cure that.

Mr. Falk: But again, given that... given that legislative history and given that the purpose of the statute in the larger sense is to circumscribe the discretion of these courts, which Congress clearly from the legislative history felt was running amuck in some sense, it would...

Justice Ginsburg: Mr. Falk, do you know in... in this connection whether there is an automatic stay provision like this one?

Justice Breyer said it's like any other provision for an automatic stay.

I... I brought out before that the Bankruptcy Code is quite explicit that Congress... that the... the court can modify on condition that automatic stay.

Is there another piece of legislation, just as automatic stay, where the court can say, yes, but we don't think so in this case?

Mr. Falk: I'm not aware of that, Your Honor.

And... and from a substantive standpoint, this is a unique situation, which I believe you pointed out, which is that the result of this automatic stay is to let the moving party basically win their case.

After... after 30 or 90 days, the State will get everything it is ultimately going to be asking for.

It's going to be getting a suspension which is, in effect, a termination of all that really... and that... that's the uniqueness.

Justice Scalia: What's wrong with that?

I mean, don't you think Congress could pass a statute... let's take an extreme one... saying no injunction shall issue for more than a year?

After a year, if... if the situation is... is not totally resolved, you go back to square one and have to bring another lawsuit and establish a violation all over again.

Mr. Falk: I do not think Congress could pass that law with regard to judgments that have already been entered.

I think that would be purely retroactive in the Plaut sense.

You'd be imposing a new ground of reopening that did not exist when the judgment went into effect.

Justice Scalia: Yes.

That... that would be your position.

Well, I... I don't agree with that.

Mr. Falk: And in light of that, we think this is a violation of the separation of powers under Plaut because Congress has commanded the reopening of a judgment in violation of the separation of powers.

Also from a separation of powers standpoint, as I indicated, this statute does invade the central prerogative of the court, the ability to rule and decide upon cases subject only to review by superior courts.

Justice O'Connor: Well, it really doesn't affect the determination of the violation, does it?

I mean, the determination...

Mr. Falk: No.

Justice O'Connor: by a court that there's been a constitutional violation is not affected.

Mr. Falk: No, but the court...

Justice O'Connor: What is affected if its upheld is the remedial power of the court, not the substantive holding of the violation.

It would place substantive limits on the remedies that can be employed.

Isn't that correct?

Mr. Falk: It would wipe out the remedy that had been ordered.

I mean, (e)(2) takes the judgment... and I believe the judgment includes the remedy... and it wipes out all... everything according to the definition of prospective relief.

Everything with the exception of damages is prospective relief.

So, all declarations as to past violations, all injunctions, any collateral matters... that is stayed.

Justice O'Connor: Unless the court determines that the relief meets the remedial standard adopted by Congress, that it is narrowly tailored and no greater than necessary, and so forth.

Mr. Falk: That's correct.

And then we're back to the fact that 90 days is admittedly inadequate time in some situations to do that.

So...

Chief Justice Rehnquist: Well, you're not suggesting, are you, Mr. Falk, that Congress can't make rules regarding the injunctive authority of... of courts?

Look at the Norris-LaGuardia Act.

Mr. Falk: No, we are not saying that at all, but if you look at Norris-LaGuardia and if you look at TROs, what you're dealing with there is Congress saying we're giving you 5 days, 10 days, whatever, after which you, court... the temporary order, the ex parte order, whatever goes away, but you, court, you can still function as a court.

You can enter a preliminary injunction.

You can do something.

Here not only is Congress saying to the courts, after 90 days, you... we... we step in.

We're going to make the decision, but...

Chief Justice Rehnquist: I... I thought you had said a moment earlier that Congress was just very, very limited in dealing with what you referred to as the central authority of... of the courts.

And I don't think that... that's correct.

I think you have to qualify that statement a good deal.

Mr. Falk: Well, but even in the context of Norris-LaGuardia or temporary restraining orders, Congress still gives the court the power to act as a court.

There are deadlines.

If they are...

Justice Ginsburg: Mr. Falk, I don't understand the analogy between the TRO and Norris-LaGuardia, these short-life orders.

I thought that those time limits were imposed by Congress not to squelch the courts, but to respect the rights of a defendant who has been slapped with an injunction and told to stop and in many cases on an ex parte basis.

So, I think it... it would be arguably a... more than arguably... a violation of due process if a court were given the power to stop a defendant from acting cold until the court gets around to adjudicating the merits.

Mr. Falk: Of course.

And the... the unique thing about (e)(2), if you look at the 10-day limit, for instance, a... on a TRO, under (e)(2) the analogy would be after 10 days the plaintiff would win and would not... and the court would not be able to stop that.

That's exactly what happens here.

After 90 days...

Justice Breyer: Yes.

Mr. Falk: I'm sorry.

Justice Breyer: Finish it.

Finish it.

Mr. Falk: I'm sorry.

After 90 days, the State wins and the court then cannot do anything to alter that fact until they have their final hearing.

Justice Scalia: Mr. Falk, I come back to your... your objection.

The telecommunications policy of the United States was largely directed by the... by the United States District Court for the District of Columbia for about 25 or 30 years under a consent decree entered into by AT&T.

Do you really think that Congress did not have the power to simply say, we do not want our national telecommunications policy directed by judicial... by judicial injunction for the future, and henceforward, this... this decree shall have no force and effect?

Mr. Falk: I think that would be a problem...

Justice Scalia: The only thing Congress could do in that situation was to amend the substantive telecommunications law?

Mr. Falk: To the extent... yes, to the extent that they were acting retroactively.

Justice Scalia: I think that's extraordinary.

Justice Breyer: Is... what do you say about the canon of... avoid a difficult constitutional question, interpret the statute?

Isn't it made for your argument?

That is to say, wouldn't you if you were a Congressman prefer an interpretation that gave you 98 percent of what you wanted rather than one that gave you 0 percent because it was perfect?

I mean, in other words, the 100 percent is struck down and they get nothing.

So, isn't that what that canon is there for?

Mr. Falk: I still think we have to operate within the intent of Congress, and the question is whether the language is explicit, which it's not, or whether there's inescapable inference that Congress intended to preclude this... the court having this power.

And I believe there is, as did the Seventh Circuit.

Justice Breyer: The one thing I should read to make sure there's that inescapable inference is the horror stories about judges out of control?

Is that the one that I should...

Mr. Falk: I believe if we put that in context, yes.

I think that would be...

Justice Breyer: Well, then we control them and that's the mandamus and so forth.

Mr. Falk: But again, Congress clearly felt that the courts were not... any of the courts, whether the district courts or the courts of appeals, were not controlling themselves, which is why we have such extreme limitations in the PLRA.

And for these reasons, we think the Seventh Circuit should be affirmed.

Chief Justice Rehnquist: Thank you, Mr. Falk.

The case is submitted.