                                          PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ____________

                      No. 16-1662
                     ____________

            RONALD EDWARD GILLETTE,
                             Appellant

                            v.

       ACTING WARDEN DIANE PROSPER;
JULIUS WILSON, in his capacity as the Director of Prisons;
        TERRITORY OF VIRGIN ISLANDS;
ATTORNEY GENERAL UNITED STATES OF AMERICA
                  ____________

                    On Appeal from the
            District Court of the Virgin Islands
                 (D.C. No. 1-14-cv-00110)
        District Judge: Honorable Wilma A. Lewis
                      ____________

             Argued December 12, 2016
   Before: CHAGARES, JORDAN, and HARDIMAN,
                  Circuit Judges.

                  (Filed: June 2, 2017)
Joseph A. DiRuzzo, III (Argued)
Jeffrey J. Molinaro
Fuerst Ittleman David & Joseph, PL
1001 Brickell Bay Drive, 32nd Floor
Miami, FL 33131
       Counsel for Plaintiff-Appellant

Kimberly L. Salisbury (Argued)
Office of Attorney General of Virgin Islands
Department of Justice
34-38 Kronprindsens Gade
GERS Complex, 2nd Floor
St. Thomas, VI 00802
       Counsel for Defendants-Appellees
                       ____________

                  OPINION OF THE COURT
                      ____________

HARDIMAN, Circuit Judge.

        Appellant Ronald Gillette is an inmate at Golden Grove
Correctional Facility on St. Croix, U.S. Virgin Islands. Gillette
filed suit in the District Court for the Virgin Islands alleging
various constitutional and statutory claims. Most significant to
this appeal, Gillette moved the District Court to convene a three-
judge court under the Prison Litigation Reform Act. The District
Court denied Gillette’s motion, finding that he had not satisfied
the prerequisites for convening a three-judge court. Before the
District Court could adjudicate the merits of Gillette’s claims, he
filed this appeal. Because the District Court’s order denying
Gillette’s motion for a three-judge court is neither a final order




                                2
nor subject to any exception to the final judgment rule, we will
dismiss Gillette’s appeal for lack of jurisdiction.

                                I

                                A

        Gillette filed his initial complaint in December 2014 and
amended it in March 2015. The amended complaint alleges
claims under: (1) 42 U.S.C. § 1983; (2) Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971); (3) Section 504 of the Rehabilitation Act; and (4) the
Americans with Disabilities Act (ADA). Gillette claims “he is
being subjected to cruel and unusual punishment due to the
failure to provide constitutionally mandated medical and mental
health treatment, and for being subject to the deplorable
conditions of Golden Grove, which also violates the ADA.”
Gillette v. Prosper, 2016 WL 912195, at *1 (D.V.I. Mar. 4,
2016) (quoting Amended Compl. ¶ 3).

        The amended complaint asserts that Appellees denied
Gillette adequate medical care, failed to protect inmates,
provided inadequate training or supervision of prison staff,
failed to protect Gillette from suicidal action, and violated the
ADA and Rehabilitation Act. Gillette sought from the District
Court an order: (1) declaring that the conditions at Golden
Grove violate the Eighth Amendment, the Virgin Islands Bill of
Rights (48 U.S.C. § 1561), and the ADA; (2) awarding Gillette
compensatory damages for the alleged violations of his
constitutional and statutory rights; and (3) granting injunctive
relief discharging Gillette from detention or, in the alternative,
transferring him to another facility that comports with the Eighth
Amendment, the Virgin Islands Bill of Rights, and the ADA.




                                3
        The District Court acknowledged that Gillette’s “claims
regarding denial of adequate medical care, failure to protect
from suicidal action, and violations of the ADA and
Rehabilitation Act . . . are particularized in that” they involve
allegations specific to Gillette “(e.g., [Gillette] has a brain cyst,
a history of suicidal ideation, and ‘heat-sensitive disabilities’).”
Gillette, 2016 WL 912195, at *1. Nevertheless, the District
Court found that Gillette’s remaining claims—“failure to protect
from attack” and “inadequate training or supervision”—“are
inextricably intertwined with the [ongoing] litigation between
the United States and the Virgin Islands regarding the conditions
of Golden Grove.” Id.; see United States v. Territory of Virgin
Islands, No. 86-265 (D.V.I.) (the Golden Grove Litigation).

       In the Golden Grove Litigation, initiated in 1986, the
United States sued “the Government of the Virgin Islands
pursuant to the Civil Rights of Institutionalized Persons Act
(‘CRIPA’), 42 U.S.C. § 1997, alleging that the inmates at
Golden Grove were being deprived of their constitutional rights
under the Eighth Amendment.” Gillette, 2016 WL 912195, at
*1. The parties promptly entered into a consent decree in which
the Virgin Islands agreed to try to remedy the conditions at
Golden Grove. After the consent decree was entered, the parties
continued to litigate the conditions at the prison. “The District
Court entered several additional orders when the conditions at
Golden Grove failed to improve according to plan, including a
1990 Plan of Compliance, a 2003 Stipulated Agreement, a 2007
Remedial Order, and three additional orders in December 2009,
February 2010, and December 2010.” United States v. Territory
of Virgin Islands, 748 F.3d 514, 517 (3d Cir. 2014). In May
2013, the District Court approved a settlement agreement in the
Golden Grove Litigation, which called for extensive systemic
changes in the areas of “safety and supervision,” “medical and



                                 4
mental health care,” “fire and life safety,” and “environmental
health” and safety. Id. at 518–19 (describing 2013 Order). In
June 2013, the Court also appointed a Monitor, who “lends
expertise to the reform effort and provides quarterly reports on
Golden Grove’s compliance with the [2013 Order].” Gillette,
2016 WL 912195, at *1.

       Many of Gillette’s allegations in this case track closely
those raised in the Golden Grove Litigation and the 2013 Order.
His claims “are also similar to the claims he raised when he
attempted to intervene in the Golden Grove Litigation.” Id. at
*2. In that case, he “argued that he should be permitted to
intervene because, as a prisoner of Golden Grove, he has a
cognizable interest in . . . the Golden Grove Litigation.” Id. The
District Court denied Gillette’s motion, and we affirmed. We
explained that Gillette’s interests were adequately represented
by the United States because, “as an inmate of Golden Grove,
[he was] the ‘exact constituent’ the United States [was]
attempting to protect.” Virgin Islands, 748 F.3d at 523. We also
noted the “substantial overlap between [Gillette’s] interests and
those of the United States.” Id. at 521.

                                 B

        Soon after filing his amended complaint in this case,
Gillette filed a motion asking the District Court to convene a
three-judge panel pursuant to the Prison Litigation Reform Act
(PLRA), 18 U.S.C. § 3626. Therein, Gillette claimed that “his
requested relief to be released from Golden Grove or transferred
to another facility constitutes a ‘prisoner release order’ under the
PLRA, which can only be issued by a three-judge court.”
Gillette, 2016 WL 912195, at *2. The PLRA defines a “prisoner
release order” as “any order, including a temporary restraining




                                 5
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 prison.”
18 U.S.C. § 3626(g)(4). For purposes of deciding Gillette’s
motion, the District Court assumed, without deciding, that
Gillette’s “request for a transfer or release . . . falls within the
statutory definition of a ‘prisoner release order.’” Gillette, 2016
WL 912195, at *3 n.4.

         A prisoner release order “shall be entered only by a
three-judge court in accordance with [28 U.S.C. § 2284].” 18
U.S.C. § 3626(a)(3)(B). To convene a three-judge court, the
party seeking a prisoner release order must file “materials
sufficient to demonstrate” that two prerequisites have been
satisfied. Id. § 3626(a)(3)(C). First, he must show that “a court
has previously entered an order for less intrusive relief that has
failed to remedy the deprivation of the Federal right sought to be
remedied through the prisoner release order.” Id.
§ 3626(a)(3)(A)(i). Second, he must demonstrate that “the
defendant has had a reasonable amount of time to comply with
the previous court orders.” Id. § 3626(a)(3)(A)(ii).

        The District Court found that Gillette had failed to meet
these two prerequisites. Regarding Counts 1–5 (denial of
adequate medical care), Counts 16–20 (failure to protect from
suicidal action), and Counts 21 and 22 (violations of the ADA
and Rehabilitation Act), the Court found that Gillette did not
satisfy the first prerequisite. Specifically, it found that Gillette
failed to show that a prior “order for less intrusive relief . . . has
failed to remedy the deprivation.” Gillette, 2016 WL 912195, at
*4. Gillette argued that the previous court orders entered in the
Golden Grove Litigation were meant to remedy the same
deprivations that he raised in this case. The District Court



                                  6
disagreed, finding that the 2013 Order in the Golden Grove
Litigation encompassed “broad, systemic improvements at
Golden Grove” and not Gillette’s particularized claims. Id.

        The District Court also found that Gillette’s claims for
failure to protect from attack (Counts 6–10) and inadequate
training (Counts 11–15) did not meet the second prerequisite for
convening a three-judge court. As an initial matter, the Court
found that, “unlike [Gillette’s] allegations of his particular
medical needs and vulnerability to suicide, these [claims]
included virtually no facts specific to [Gillette].” Id. at *5.
Instead, the Court found that these claims concerned “the
general policies and conditions of Golden Grove” and thus fell
“within the scope of the 2013 Order.” Id. The District Court also
found “that the 2013 Order constitute[d] an order for less
intrusive relief that has failed to remedy the deprivation of
Federal rights that [Gillette’s] prisoner release order seeks to
remedy.” Id. Thus, although these claims satisfied the first
requirement for convening a three-judge court, they failed to
satisfy the second requirement because “the defendants have not
had a reasonable amount of time to comply with the 2013
Order.” Id. Gillette filed this timely appeal.

                                II

        The District Court had jurisdiction under 28 U.S.C.
§ 1331. Appellees challenge our jurisdiction, arguing that the
order appealed from is not final under 28 U.S.C. § 1291 and
does not fall within any exception to the final judgment rule.
Appellees are correct. As we shall explain, the District Court’s
order neither ends the litigation nor prevents Gillette from taking
an appeal after final judgment. Accordingly, we lack
jurisdiction.




                                7
        A final decision is one that “ends the litigation on the
merits and leaves nothing for the court to do but execute the
judgment.” Harris v. Kellogg Brown & Root Servs., Inc., 618
F.3d 398, 400 (3d Cir. 2010) (quoting Catlin v. United States,
324 U.S. 229, 233 (1945)). The purpose of § 1291 is to “prohibit
piecemeal review and dispose of what is, for all practical
purposes, a single controversy in one appeal.” Verzilli v. Flexon,
Inc., 295 F.3d 421, 424 (3d Cir. 2002).

                                III

                                A

       Gillette argues that the denial of his motion to convene a
three-judge court precludes him from securing his release or
transfer from Golden Grove, and thus “effectively, and
improperly, terminated the litigation below.” Gillette Br. 5. This
overstates the effect of the denial of the motion. Contrary to
Gillette’s claim, the District Court neither ruled on the merits
nor dismissed any of his claims. Therefore, Gillette’s litigation
can proceed in the District Court after we dismiss this appeal.

       Moreover, should Gillette prevail on the merits, the
District Court can order relief to remedy the constitutional
violations. While the District Court cannot enter a “prisoner
release order” because such an order may be entered only by a
three-judge court, 18 U.S.C. § 3626(a)(3)(B), the District Court
can fashion other equitable relief short of a release order. See 18
U.S.C. § 3626(a)(1)(A) (authorizing relief “necessary to correct”
ongoing constitutional violation found by the district court).
“Under the PLRA, courts retain their authority to adjudicate
constitutional challenges and grant equitable relief to remedy




                                8
constitutional violations.” Imprisoned Citizens Union v. Ridge,
169 F.3d 178, 188 (3d Cir. 1999).

       In support of our jurisdiction, Gillette relies on several
cases where appellate courts reviewed district court orders
denying the formation of a three-judge court. Unlike this case,
however, the orders appealed from in those cases did effectively
end the litigation. See, e.g., Idlewild Bon Voyage Liquor Corp. v.
Epstein, 370 U.S. 713, 715 n.2 (1962) (noting that appellate
court properly rejected jurisdictional challenge where appellant
“was effectively out of court” (citation omitted)); Hartmann v.
Scott, 488 F.2d 1215, 1220 (8th Cir. 1973) (concluding that
absence of a final judgment did not preclude review of the three-
judge court issue because dismissal of the state defendants
terminated the litigation “[f]or all practical purposes”). By
contrast, Gillette’s claims are still pending before the District
Court and the litigation will proceed after we dismiss the appeal.
Thus, contrary to Gillette’s argument, the order denying a three-
judge court does not result in “practical finality.” Gillette Br. 8.

        The absence of practical finality in Gillette’s case is
demonstrated by a similar case in which our sister court
dismissed a prisoner’s appeal from the denial of a three-judge
court for lack of jurisdiction. Jensen v. Dole, 677 F.2d 678, 679
(8th Cir. 1982). As the Eighth Circuit explained: “The district
court made no ruling respecting Jensen’s claim for declaratory
relief, nor does the order purport to be a dismissal of the entire
action. . . . The district court’s denial of Jensen’s request for a
three-judge court is thus not immediately appealable.” Id. at 680
(citation omitted)). Likewise here, Gillette’s claims are still
pending before the District Court. Accordingly, the order
denying Gillette’s motion is not a final judgment under § 1291.




                                 9
                                  B

        Gillette’s first fallback position is that the collateral order
doctrine of Cohen v. Beneficial Industrial Loan Corp., vests us
with jurisdiction. In that case, the Supreme Court recognized
that there are some issues “too important to be denied review
and too independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicated.”
337 U.S. 541, 546 (1949). An interim decision is appealable if
it: “(1) conclusively determines the disputed question,
(2) resolves an important issue completely separate from the
merits of the action, and (3) is effectively unreviewable on
appeal from a final judgment.” Sell v. United States, 539 U.S.
166, 176 (2003) (alterations, internal quotation marks, and
citations omitted). “[A] failure to meet any one of the three
factors renders the doctrine inapplicable as a basis for appeal, no
matter how compelling the other factors may be.” In re
Pressman-Gutman Co., 459 F.3d 383, 396 (3d Cir. 2006)
(citation omitted).

        Here, neither the second nor the third factor of the Cohen
test is met. While the issues raised in Gillette’s motion are




                                  10
important,1 they are not completely separate from the merits of
the underlying action. In fact, the merits of this appeal and the
merits of Gillette’s underlying case are closely related, as they
both concern alleged constitutional violations and seek Gillette’s
release or transfer from Golden Grove. Moreover, the District
Court’s order is not “effectively unreviewable on appeal from a

       1
         Appellees curiously argue that since Gillette will remain
incarcerated even after this appeal, this case lacks “that hallmark
ingredient that courts usually look for when determining
whether a case is ‘important.’” Appellees Br. 8. Given the nature
of the constitutional violations alleged by Gillette and
established by the Golden Grove Litigation, the issues in this
case are certainly important. See, e.g., Sell, 539 U.S. at 176
(concluding that defendant’s right to avoid forced medication is
important). Over the past 30 years, Appellees have struggled
and, it appears, often failed to maintain a prison that comports
with the basic requirements of the Eighth Amendment. See
United States v. Territory of Virgin Islands, 884 F. Supp. 2d
399, 404–06 (D.V.I. 2012) (providing a detailed account of
Golden Grove litigation since 1986, describing Appellees’
failure to comply with several court orders and consent decrees,
and noting Appellees’ “continued inability” to remedy prison
conditions). Indeed, according to the most recent compliance
report, Appellees have failed to obtain “Substantial
Compliance” in 98% of categories in which they are required to
make progress. Court-Appointed Independent Monitor’s 14th
Compliance Assessment Report at 8–9, United States v.
Territory of Virgin Islands, No. 86-265 (D.V.I. Apr. 30, 2017),
ECF No. 1052 (evaluating compliance pursuant to court order
(ECF No. 304)).




                                11
final judgment.” Sell, 539 U.S. at 176 (citation omitted). To be
unreviewable, “an order must be such that review postponed
will, in effect, be review denied.” Martin v. Brown, 63 F.3d
1252, 1261 (3d Cir. 1995) (citation omitted). Here, any errors in
the District Court’s analysis of the PLRA’s three-judge court
provision remain subject to review through the normal appellate
process.

                                C

        Gillette also contends that appellate review is appropriate
under the Gillespie doctrine, which permits appellate review in a
limited number of cases after weighing “the inconvenience and
costs of piecemeal review on the one hand and the danger of
denying justice by delay on the other.” Gillespie v. U.S. Steel
Corp., 379 U.S. 148, 152–53 (1964) (citation omitted). We have
yet to apply this doctrine, but several of our sister courts have
considered it. See, e.g., Mallory v. Eyrich, 922 F.2d 1273, 1279
(6th Cir. 1991) (finding Rule 60(b) order setting aside judgment
in voting rights case immediately appealable under both § 1291
and the Gillespie doctrine); In re Exennium, Inc., 715 F.2d 1401,
1403 (9th Cir. 1983) (finding bankruptcy order appealable under
Gillespie doctrine because ruling would “advance, and not
impede, the bankruptcy proceedings”). Nevertheless, the
Supreme Court has cautioned against extending Gillespie. “If
Gillespie were extended beyond the unique facts of that case,
§ 1291 would be stripped of all significance.” Coopers &
Lybrand v. Livesay, 437 U.S. 463, 477 n.30 (1978).

       In any event, resolution of this appeal is not
“fundamental to the further conduct of the case,” as is required
by Gillespie. 379 U.S. at 154. As we noted already, the District
Court’s order did not decide the merits of the underlying action,




                                12
and the case will proceed as it would even if this appeal had not
been filed. Gillette insists that “absent the formation of a three-
judge court, this case will be litigated before a single judge who
does not have power to issue a legally enforceable order or
judgment.” Gillette Br. 12. Once again, this is an overstatement.
Although Gillette is correct that the District Court is powerless
to enter a prisoner release order, it retains a panoply of other
powers, both legal and equitable, in its adjudication of Gillette’s
claims.

                                D

        Next, Gillette argues that the District Court’s order is
immediately appealable because it constituted the refusal of an
injunction under 28 U.S.C. § 1292(a)(1). He contends that, “[b]y
denying Gillette’s request for a prisoner release order, the
District Court refused to grant Gillette his requested injunction.”
Gillette Br. 13. This is factually inaccurate. The District Court
did not deny an injunction; it denied a motion to convene a
three-judge court. Moreover, the denial of Gillette’s motion does
not impair the District Court from granting equitable relief in the
future.

       To the extent that Gillette contends the District Court’s
order had the practical effect of denying his injunction, this
argument also fails. While an order that has the “practical effect
of refusing an injunction” can be appealable under § 1292(a)(1),
an interlocutory appeal lies only if the District Court’s order has
“serious, perhaps irreparable, consequence[s], and . . . the order
can be effectually challenged only by immediate appeal.”
Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981) (internal
quotation marks omitted). While the denial of a three-judge
court at this stage of the litigation is serious, it is not




                                13
irreversible. The District Court’s order can be challenged later
on appeal from a final judgment.

                                 E

        Finally, Gillette argues that, even if appellate jurisdiction
is lacking under §§ 1291 and 1292, we should issue a writ of
mandamus compelling the District Court to convene a three-
judge court because it committed a clear error of law.
“Mandamus provides a drastic remedy that a court should grant
only in extraordinary circumstances in response to an act
amounting to a judicial usurpation of power.” In re Diet Drugs
Prods. Liab. Litig., 418 F.3d 372, 378 (3d Cir. 2005) (internal
quotation marks and citation omitted). It is only appropriate
when: (1) the petitioner has “no other adequate means to attain
the relief” sought; (2) the “right to the issuance of the writ is
clear and indisputable;” and (3) “the issuing court . . . [is]
satisfied” in the exercise of its discretion that mandamus “is
appropriate under the circumstances.” Id. at 378–79 (citation
omitted).

        “The first prerequisite—that the petitioner have no other
adequate means to attain the relief sought—emanates from the
final judgment rule: mandamus must not be used as a mere
substitute for appeal.” Id. at 379 (internal quotation marks and
citation omitted). Because Gillette can appeal the District
Court’s decision regarding the three-judge court after final
judgment, the extraordinary writ of mandamus is not warranted
here.




                                 14
                         *      *       *

        The District Court’s order is not final under § 1291. Nor
is it appealable under the collateral order doctrine, the Gillespie
doctrine, or as an interlocutory order under § 1292(a)(1).
Accordingly, we will dismiss this appeal for lack of jurisdiction.




                                15
