              IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                         _____________________

                              No. 98-20233
                         _____________________



DAVID R. RUIZ; ET AL.,

                                                 Plaintiffs-Appellees,

UNITED STATES OF AMERICA,

                                         Intervenor Plaintiff-Appellee

                                versus

GARY JOHNSON, Director, Texas Department of
Criminal Justice, Institutional Division;
ALLEN B. POLUNSKY; CAROLE S. YOUNG;
JOHN R. WARD; JOHN DAVID FRANZ; NANCY PATTON;
CAROL S. VANCE; PATRICIA DAY; ALFRED C.
MORAN; ALFRED M. STRINGFELLOW,

                                                 Defendants-Appellants.

*****************************************************************
                      _____________________

                              No. 98-20841
                         _____________________



DAVID R. RUIZ; ET AL.,

                                                 Plaintiffs-Appellees,

                                versus
UNITED STATES OF AMERICA,

                                               Intervenor Plaintiff-Appellant

                                       versus

GARY JOHNSON, ETC.; ET AL.,

                                                      Defendants.
_________________________________________________________________

      Appeals from the United States District Court for the
               Southern District of Texas, Houston
_________________________________________________________________
                          June 25, 1999

Before JOLLY, WIENER, and PARKER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

      This appeal arises from the efforts of Texas officials to

terminate the federal consent orders that have in substantial part

governed Texas prisons for almost twenty-five years.                       Today, we

have before us two separate issues: first, mootness--whether an

appeal of     a    district    court    order      holding    the   automatic    stay

provision of the Prison Reform Litigation Act (“PLRA”), 18 U.S.C.

§   3626(e)(2),     unconstitutional         has    been     rendered   moot     by   a

subsequent order of the district court addressing the merits of the

state’s claim and, second, whether the district court erred in

finding the automatic stay provision, § 3626(e), unconstitutional.

The PLRA, among other things, was designed by Congress to address

unduly burdensome injunctive judgments against prisons.                      The act

effectively       encourages    state    and       local     governments    to   seek

termination of such judgments.               When these cases come to the

district court, § 3626(e) requires the court, if it does not rule




                                         2
on a motion to terminate relief within thirty days, to issue an

automatic stay of all court orders granting relief related to

prison conditions.      In the case at hand, the district court ruled

that § 3626(e) is unconstitutional because such congressional

involvement in specific court orders violated the Separation of

Powers doctrine and the due process rights of the parties.                 Before

we issued an opinion with respect to an appeal of this ruling, the

district court ruled on the motion to terminate.               We conclude that

the district court’s subsequent ruling does not render the issue on

appeal moot.      Turning then to the merits of the appeal, we conclude

that the district court erred in its interpretation of the statute

and   that,    under    the    correct       interpretation,    §   3626(e)   is

constitutional.

                                         I

      This suit was originally brought in 1974 in the Southern

District of Texas by plaintiff-appellants, a class of inmates

confined in various institutions operated by the Texas Department

of Corrections (the “prisoners”), challenging the constitutionality

of the conditions of their confinement pursuant to 28 U.S.C.

§ 1983.    After the district court found that the prison conditions

violated    the    Eighth     and   Fourteenth     Amendments,      the   parties

submitted to the court a proposed final judgment that set forth the

relief the prisoners were to be granted with regard to such issues

as population limits, use of force, and the Prisoners’ access to

the courts. Although the district court through interim orders and




                                         3
consent decrees has exercised authority over Texas prisons for

almost twenty-five years, it was not until 1992 that the district

court entered an order approving the parties’ proposed final

judgment.

     In March 1996, the defendant-appellants--the Director of the

Department of Criminal Justice and members of the Texas Board of

Criminal Justice (“prison officials”)--filed a motion to vacate the

1992 Final Judgment pursuant to Fed. R. Civ. P. 60(b)(5).                  One

month later, the President signed into law the Prison Litigation

Reform Act (“PLRA” or the “Act”).              18 U.S.C. § 3626.       The Act

provides    that   a    district    court   should   not   grant    prospective

relief--defined        as   “all   relief   other   than   compensatory   money

damages,” 18 U.S.C. § 3626(g)(7)--in a prison litigation case

“unless the court finds that such relief is narrowly drawn, extends

no further than necessary to correct the violation of the Federal

right, and is the least intrusive means necessary to correct the

violation of the Federal right.”            18 U.S.C. § 3626(a)(1)(A).

     The Act similarly provides that a defendant is entitled to the

immediate termination of any prospective relief that was ordered

prior to the enactment of the PLRA “if the relief was approved or

granted in the absence of a finding by the court that the relief”

satisfies the PLRA’s new tripartite test, 18 U.S.C. § 3626(b)(2),

unless the court makes written findings based on the record that

prospective     relief       remains   necessary     and    meets   the   Act’s

requirements.      18 U.S.C. §3626(b)(3).




                                        4
     The   PLRA,   as    originally        enacted,    further   contained   an

automatic stay provision, which stated that “[a]ny prospective

relief subject to a pending motion [for termination] shall be

automatically stayed during the period . . . beginning on the 30th

day after such motion is filed . . . and ending on the date the

court enters a final order ruling on the motion.”                   18 U.S.C.

§ 3626(e)(2), superseded by Pub. L. No. 105-119 § 123(b).

     In September 1996, the defendants filed a supplemental motion

to vacate the 1992 Final Judgment, in which they argued that the

district   court   had    not   made       the   necessary    findings   under

§ 3626(b)(2) to sustain the prospective relief granted in the 1992

Final Judgment.1   The district court entered an order finding that

it was impossible for the court to resolve the defendants’ motions

within the 30-day period specified by § 3626(e), but that it would

not stay the 1992 Final Judgment because the PLRA’s automatic stay

provision was an unconstitutional violation of the Separation of

Powers doctrine and due process of law.               The district court also

stated in the order that it would not rule on the motions to

terminate until it had conducted an evidentiary hearing.

     The prisons officials appealed the district court’s refusal to

rule immediately on their motion to terminate relief, but did not

appeal the district court’s ruling regarding the constitutionality


    1
     The district court approved the 1992 Final Judgment under the
then proper standard, which is applicable to class actions
generally.




                                       5
of the PLRA’s then-existing automatic stay provision.   In February

1997, the Prison officials filed for a writ of mandamus to order

the district court to terminate the 1992 Final Judgment under

§ 3626(b)(2) without an evidentiary hearing, which was consolidated

with its appeal.   In August 1997, this court held that (1) it would

not review the district court’s constitutional holding; (2) the

remainder of the district court’s order was not appealable; and (3)

the prison officials were not entitled to the immediate termination

of the previously ordered prospective relief.    Ruiz v. Scott, 124

F.3d 191 (5th Cir. 1997).      The court did note, however, that,

consistent with the PLRA, the district court should rule promptly

on the officials’ termination motion.

     In September 1997, the defendants then filed in the district

court (1) a motion for a prompt ruling on their supplemental motion

to vacate; and (2) a motion for a ruling on the motion for stay,

asserting that the court’s earlier ruling was not made in response

to a request for a stay.       While the defendants’ motions were

pending, Congress amended the stay provision of the PLRA to read as

follows:

     Procedure for motions affecting prospective relief.

     (1) Generally. — The court shall promptly rule on any
     motion to modify or terminate prospective relief in a
     civil action with respect to prison conditions. Mandamus
     shall lie to remedy any failure to issue a prompt ruling
     on such a motion.

     (2) Automatic Stay. — Any motion to modify or terminate
     prospective relief made under subsection (b) shall
     operate as a stay during the period —




                                  6
           (A)(I) beginning on the 30th day after such
           motion is filed, in the case of a motion made
           under paragraph (1) or (2) of subsection (b);
           * * *; and
           (B) ending on the date the court enters a
           final order ruling on the motion.

     (3) Postponement of automatic stay. — The court may
     postpone the effective date of an automatic stay
     specified in subsection (e)(2)(A) for not more than 60
     days for good cause.        No postponement shall be
     permissible because of general congestion of the court’s
     calendar.

     (4) Order blocking the automatic stay. — Any order
     staying, suspending, delaying, or barring the operation
     of the automatic stay described in paragraph (2) (other
     than an order to postpone the effective date of the
     automatic stay under paragraph (3)) shall be treated as
     an order refusing to dissolve or modify an injunction and
     shall be appealable pursuant to section 1292(a)(1) of
     title 28, United States Code, regardless of how the order
     is styled or whether the order is termed a preliminary or
     a final ruling.

18 U.S.C. § 3626(e)(1-4).      Congress provided that the Amended Stay

Provision “shall take effect upon the date of the enactment of this

Act and shall apply to pending cases.”

     In January 1998, the district court ruled that, like the

original   stay   provision,   the   Amended   Stay   Provision   is   also

unconstitutional because it “would encroach upon the powers of the

judiciary, overturn a judgment of an Article III court, and deprive

parties of a vested property right without due process of law”

(“January Order”).    The district court further concluded that “the

automatic stay provision suspends valid judgments based on the mere

act of filing a motion” in violation of the holding of United

States v. Klein, 80 U.S. (13 Wall.) 128 (1871), that a legislative




                                     7
rule that mandates the outcome of a case encroaches upon the power

reserved for the judiciary.

     The United States, which had intervened as a plaintiff in

1974, filed a motion for reconsideration of the court’s January

Order, in which it advanced an interpretation of the Amended Stay

Provision that would avoid the district court’s constitutional

concerns and allow the district court to delay the stay under its

inherent equitable powers (as the government puts it, the district

court retains the equitable power to “stay the stay.”).          In June

1998, the court denied the government’s motion, rejecting its

proposed construction of the stay provision of the PLRA (“June

Order”).

     The prison officials then filed another petition for mandamus

to order the district court to rule immediately on the officials’

September 1996 termination motion.      In December 1998, this court

declined to order the district court to rule instanter, as the

district court had scheduled an evidentiary hearing for January 21,

1999.   The court, however, chastised the district court for having

delayed the process and ordered the court to rule on the prison

officials’   termination   motion   within   a   reasonable   time   after

beginning the evidentiary hearing and, in no event, later than

March 1, 1999.   In re Scott, 163 F.3d 282 (5th Cir. 1998).

     The prison officials timely appealed the district court’s

January Order (No. 98-20233).       The United States timely appealed

the district court’s June Order (No. 98-20841). The parties argued




                                    8
the case to this panel on February 2, 1999.               On March 1, 1999

(“March Order”), the district court issued an order denying the

prison officials’ motion for termination, finding that the PLRA’s

termination provisions were unconstitutional and that, even if they

were constitutional, the prisoners nevertheless would be entitled

to relief.

     Because the district court ruled on the underlying motion for

termination, any ruling by us on the automatic stay provision

arguably will have no effect on the outcome of the case.                    We

therefore requested supplemental briefing from the parties as to

whether the district court’s March 1999 order rendered the appeal

moot.

                                      II

     In     order   to   have   jurisdiction   under   Article   III   of   the

Constitution, we must have before us an actual case or controversy

at the time we issue our decision.         United States Parole Comm'n v.

Geraghty, 445 U.S. 388, 396 (1980) (noting that a case becomes moot

"'when the issues presented are no longer "live" or the parties

lack a legally cognizable interest in the outcome.'") (quoting

Powell v. McCormack, 395 U.S. 486, 496 (1969)).           In this case, all

of the parties agree that the March Order denying the motion for

termination prevents the appellants from obtaining any meaningful

remedy at this time2 with respect to the district court’s refusal

        2
       Because the parties will appeal the March Order, it is
possible that, if a subsequent panel reverses that order, the




                                       9
to apply the automatic stay.        The parties further agree that an

appeal of    the   March   Order   will   only    address   the   termination

provision, 18 U.S.C. § 3626(b), and will not address the automatic

stay provision, 18 U.S.C. § 3626(e).

     The    parties   disagree,    however,      over   whether   the   prison

officials retain a cognizable legal interest in the outcome of the

instant appeal. The prison officials argue that the controversy at

issue here--over the constitutionality of the stay provision--fits

into an exception to the mootness doctrine for actions that are

“capable of repetition yet evading review.”             Murphy v. Hunt, 455

U.S. 478, 482 (1982).       The prison officials argue that the case

falls into the exception and that we should rule on the appeal; in

addition, they argue that we should also rule on the constitutional

issue involved in the appeal of the March Order.              To accomplish

this objective, the prison officials have filed a motion seeking to

bifurcate its appeal of the March Order and consolidate it with the

current appeal.3

     The prisoners argue that this case does not fall into the

exception and that we should therefore dismiss the appeal.                 The

government argues that the case may fit into the exception, but


parties in this case could find themselves in essentially the same
posture as they were before the district court issued its March
Order. If, at that point, the district court refused to permit the
operation of the automatic stay under the PLRA, the parties could
be entitled to a remedy.
    3
     We hereby deny the prison officials’ motion to bifurcate and
consolidate.




                                     10
that we should hold the appeal in abeyance pending the appeal of

the March Order.    After consideration of the arguments presented,

we   hold   that   this   controversy   falls   into   the   category    of

controversies that are capable of repetition yet evading review.

      The exception is limited to a situation where “two elements

combine[]: (1) the challenged action [is] in its duration too short

to be fully litigated prior to its cessation or expiration, and (2)

there [is] a reasonable expectation that the same complaining party

would be subjected to the same action again.”                Weinstein v.

Bradford, 423 U.S. 147, 149 (1975).        We address each element in

turn.

                                    A

      Both the prison officials and the government seem to agree

that the action at issue here--the district court’s refusal to

apply the automatic stay provision--is in its duration too short to

be fully litigated prior to its cessation or expiration.                The

prison officials assert, and the government seems to agree, that a

district court can avoid the requirement of the automatic stay

provision by ruling that the provision is unconstitutional and then

ruling on the motion before we rule on the appeal.

      The prisoners disagree, arguing that it is not clear that the

prison officials could not have expedited their appeal in such a

way that the issue could have been resolved before the district

court ruled on the motion to terminate.     The prisoners point to the

prison officials’ alleged delay in appealing the district court’s




                                   11
action in this case as evidence that a prompt appeal could permit

resolution of the claim.

     We conclude that, because of the constitutional issue involved

and the time frame under which the district court must operate

under the PLRA, it is exceedingly unlikely that an appeal of a

district court order holding the automatic stay unconstitutional

would be resolved before the district court ruled on the underlying

motion to terminate.        At the outset, we note that this case is

unusual in that the events that render the appeal moot are uniquely

within the control of the federal judiciary.                 We are therefore

placed   in    the    awkward   position    of   having    to    adjudicate   the

consequences of our own actions.           An examination of the process by

which the PLRA operates nevertheless makes clear that when the

district      court    concludes   the     automatic      stay    provision    is

unconstitutional, that issue is unlikely to be resolved on appeal

before the district court determines the motion to terminate.

     Even without the automatic stay provision, the PLRA clearly

mandates the district court to resolve the motion to terminate as

expeditiously as possible.         We therefore feel it inappropriate to

instruct the district court to delay a ruling on the motion to

terminate absent compelling circumstances.             On the other hand, in

an instance where the district court rules the automatic stay

provision unconstitutional, we are confronted with an issue that

requires reflective and deliberative treatment.                 We are therefore

hesitant to assert that a subsequent panel can resolve the case




                                      12
without the benefit of oral argument.                However, even with an

expedited appeal, it could still take a few months to brief,

process, hear and decide the appeal.

     And, if the district court holds the stay provision to be

unconstitutional when the thirty-day period has expired, we would

expect a conscientious district court to rule on the underlying

motion   to   terminate    before      we     resolved   the    appeal    on     the

constitutionality of the stay provision.            Thus, the complained of

injury suffered by the prison officials--that the district court

does not apply the automatic stay--is too short in duration to be

resolved on appeal prior to its expiration.              We therefore conclude

that the first element of the “capable of repetition, yet evading

review” exception is met in this case.

                                        B

     With respect to the second element--whether a reasonable

expectation    exists    that    the   same    complaining      party    would   be

subjected     to   the    same    action       again--the      parties    diverge

considerably in their definitions of a “reasonable expectation.”

The prisoners focus on the prospect that, in this litigation, the

prison officials will again be entitled to an automatic stay and

conclude that it is unlikely.          We need not address this argument,

however, as the prison officials are likely to encounter the same

situation in other litigation.

     The prison officials intend to file termination motions under

the PLRA in two other cases, Castillo v. Cameron County, No.




                                       13
93-CV-260 (S.D. Tex., Brownsville Div.), and Devonish v. Hauck, No.

SA-73-CA-59 (W.D. Tex., San Antonio Div.). In addition, the prison

officials filed a termination motion in Guajardo v. McAdams, No.

H-71-570 (S.D. Tex., Houston Div.), in 1997 that is still pending.

In the light of these other cases, we hold that there is a

reasonable expectation that the complaining party in this case,

that is, the prison officials, will be subjected to the same action

again.

                                  C

     Although the relief requested by the prison officials may not

be likely to avail them in the current litigation, the prison

officials clearly retain a cognizable legal interest in this

appeal.   Under the PLRA, the prison officials are, by the terms of

the statute, entitled to the   operation of an automatic stay if the

district court has not ruled on the termination motion within

thirty days.   However, because an appeal of a district court order

holding the stay unconstitutional is unlikely to be resolved before

the district court rules on the termination motion, the prison

officials are likely to be deprived the benefit of such a stay

unless we address the issue now.       We therefore hold the appeal

before us not moot and turn to its merits.

                                 III

     We are confronted with appeals of two separate orders--the

January Order, holding the amended § 3626(e) unconstitutional, and

the June Order, refusing to reconsider the January Order in the




                                 14
light of the government’s proposed interpretation of § 3626(e).

Because we find the government’s argument persuasive and hold that

the district court’s June Order was erroneous, we do not address

the constitutionality of the amended PLRA as that statute has been

interpreted by the district court.

     The government argues that the Amended Stay Provision is

constitutional       because,    although   the   statute      provides     an

“automatic” stay, it does not explicitly displace the district

court’s inherent equitable powers to suspend the stay--as the

Government terms it, the inherent, equitable authority to “stay the

stay.”   Thus, as the Amended Stay Provision does not absolutely

mandate a particular judicial result, but instead permits the

district court an opportunity to assay the equities of the case, it

violates neither the Separation of Powers doctrine nor due process.

     The district court rejected this argument in its June Order.

To properly understand the district court’s reasoning, we turn

first to the language of 18 U.S.C. § 3626(e).        We then look to two

recent cases in other circuits that address this issue.               Finally,

we   explain   why    we   believe    the   government   has    the    better

interpretation.

                                      A

     It is necessary first to parse through the subsections of the

amended stay provisions.        The principal subsection instituting the

stay, 18 U.S.C. § 3626(e)(2), reads:




                                      15
     (2) Automatic Stay. — Any motion to modify or terminate
     prospective relief made under subsection (b) shall
     operate as a stay during the period —

          (A)(I) beginning on the 30th day after such
          motion is filed, in the case of a motion made
          under paragraph (1) or (2) of subsection (b);
          * * *; and
          (B) ending on the date the court enters a
          final order ruling on the motion.

This subsection makes the stay “automatic” and clearly defines when

it will take effect.      The subsection is silent, however, with

respect to whether the automatic stay, once it has taken effect, is

subject to the equitable principles traditionally available to a

federal court.4

     The remaining two subsection of 18 U.S.C. § 3626(e) address

actions by federal courts that can prevent the automatic stay from

taking effect.    Under 18 U.S.C. § 3626(e)(3), a district court may

postpone the automatic stay for an additional sixty days. Finally,

under 18 U.S.C. § 3626(e)(4), the parties may immediately appeal

any ruling that delays the stay other than a postponement:

     (4) Order blocking the automatic stay. — Any order
     staying, suspending, delaying, or barring the operation
     of the automatic stay described in paragraph (2) (other
     than an order to postpone the effective date of the
     automatic stay under paragraph (3)) shall be treated as
     an order refusing to dissolve or modify an injunction and
     shall be appealable pursuant to section 1292(a)(1) of
     title 28, United States Code, regardless of how the order
     is styled or whether the order is termed a preliminary or
     a final ruling.



    4
     For a description of these principles, see Hadix v. Johnson,
144 F.3d 925, 937 (6th Cir. 1998).




                                  16
We note that, while the statute permits interlocutory appeal of a

suspension of the (e)(2) stay, the statute is silent with respect

to the standard of review the circuit court should apply on the

appeal of such a decision.5

                                    B

     Reading   (e)(3)    and   (e)(4)    together,    the   district   court

concluded   that   the   amended   automatic   stay    provision   permits

postponement but prevents any action by the district court that

would otherwise bar the effect of the stay provision.          In the Fifth

Circuit, the interpretation of 18 U.S.C. § 3626(e) is an issue of

first impression. We note, however, that the Sixth and the Seventh

Circuits have addressed the issue, although the two circuits

reached opposite results with respect to statutory interpretation:

the Sixth Circuit, in Hadix v. Johnson, 144 F.3d 925 (6th Cir.

1998), upheld the government’s reading of the statute, i.e., that

the district court retained the equitable power to stay the stay;

while the Seventh Circuit, in French v. Duckworth, 1999 WL 288267

(7th Cir. 1999), upheld the prison officials’ reading that the

district court could only postpone the stay pursuant to (e)(3).

     The court in Hadix adopted the government’s interpretation

based on two separate rationales.        First, the court noted that it

was bound by the principle of statutory construction that a statute


      5
       We take this evidence as leaving broad discretion in the
Article III appellate court in reviewing the failure of the
district court to adhere to the automatic stay provision.




                                    17
will not limit “the equitable jurisdiction of federal courts absent

a clear command from Congress to the contrary.”         144 F.3d at 936.

Relying on § 3626(e)(4), the court concluded that, because that

subsection permits appeal of a delay or denial of the stay,

Congress must have intended to permit district courts, in some

circumstances, to deny or suspend the automatic stay.          Hadix notes

that, had Congress intended to bar the district court from denying

the stay, the traditional remedy would have been one of mandamus

rather than appeal.     Id.   The court then concluded that nothing in

either 18 U.S.C. § 3626(e) or its legislative history “compels a

departure from the courts’ inherent power to stay judicial orders

in order to achieve equity.”       Id. at 937-38.

     The second rationale advanced by the court in Hadix for

concluding that the statute’s silence effectively preserved the

district court’s equitable power to “stay the stay,”           is the rule

of statutory construction that “‘where an otherwise acceptable

construction   of   a   statute   would   raise   serious   constitutional

problems, the [courts]        will construe the statute to avoid such

problems unless such construction is plainly contrary to the intent

of Congress.’”      Id. at 937.      The court engaged in a lengthy

analysis of the constitutionality of 18 U.S.C. § 3626(e) and

concluded that, if interpreted to prevent a district court from

equitably suspending an automatic stay, it would amount to a

violation of the Separation of Powers doctrine.             Id. at 938-45.

Because such an interpretation would result in finding § 3626(e)




                                    18
unconstitutional,       the    court   adopted     the     government’s     proposed

interpretation instead.

      In French, the Seventh Circuit adopted the prison official’s

interpretation     of    §     3626(e),    i.e.,     that      the   provision     bars

suspension or delay of the stay except as provided for in (e)(3),

and    concluded        that     the      statute,        as    interpreted,        was

unconstitutional. The court characterized the decision in Hadix as

adopting   its     position      “[i]n     order     to     avoid    a   finding     of

unconstitutionality.”          French, 1999 WL 288267 at *4.              The court

noted that “the qualification that the [statutory] language must be

able to bear the constitutional interpretation [that the government

proposed] is an important one.            Courts cannot redraft statutes so

that they read the way Congress           might have written them, or should

have written them.”          Id. at *5.        Turning to the language of the

stay provision, the court stated that “Congress used unequivocal

words when it drafted (e)(2). . . . Congress specified that the

stay would be automatic.           Finally it specified not only a clear

starting point, but also the ending point for the stay.”                     Id.

      The court then addressed the reasoning in Hadix that the

(e)(4) remedy of appeal of an order barring the operation of the

stay, instead of mandamus, evinced an intent to permit suspension

of the stay:

      Why would Congress have included this in the statute,
      they reasoned, if it did not anticipate that courts would
      continue to have the power to issue equitable relief
      against them? In our view, there is an answer to this
      question. The drafters of the PLRA realized that they




                                          19
     were skating close to the line in (e)(2), and they wanted
     to ensure that the issue that is now before us could be
     resolved in an interlocutory appeal. The fact that a
     district court’s effort to stay the (e)(2) stay can be
     appealed says nothing about what an appellate court must
     do once it has the case.

We note that the district court in this case relied on the same

rationale when it addressed this argument in the June Order.

                                              C

     In deciding the case, we find the first rationale advanced in

Hadix to be dispositive.          As that court noted, nothing in either

the language of § 3626(e) or its statutory history indicates that

Congress intended to supersede the district court’s equitable power

to stay judicial orders.               We acknowledge that the terms in 18

U.S.C.   §    3626(e)(2),       such    as        the    word    “automatic”       and    the

description    of   the    duration      of       the    stay,    could     suggest      that

Congress     intended     the   stay     to       take    place       without    exception.

Furthermore, if read in a vacuum that excluded an understanding of

general legal principles, it could read as if the drafters of §

3626(e)(2) had no thought of the possibility of a court exercising

its equitable power to suspend the stay.                        We think this argument

fails, however, in the light of § 3626(e)(4), which expressly

addresses the possibility of a district court suspending the stay.

The district court’s and the French court’s explanation that

Congress      merely      intended       to        permit        an     appeal     of     the

constitutionality of the stay is certainly plausible.                                   It is

equally plausible, however, that Congress understood that there




                                          20
would be some cases in which a conscientious district court acting

in good faith would perceive that equity required that it suspend

the (e)(2) thirty-day stay and Congress therefore permitted the

district court to do so, subject to appellate review.

       Given our deference to the district court’s equitable powers,

we must select the latter interpretation.                   As the Supreme Court

stated in Porter v. Warner Holding Co.: “Unless a statute in so

many words, or by a necessary and inescapable inference, restricts

the    court's   jurisdiction      in   equity,      the    full   scope   of    that

jurisdiction     is   to    be   recognized     and     applied.      ‘The      great

principles of equity, securing complete justice, should not be

yielded to light inferences, or doubtful construction.’” 328 U.S.

395, 398 (1946) (quoting Brown v. Swann, 10 Pet. 497, 503 (1836)).

In the case at hand, we find neither words nor inference that

justify encroaching the district court’s equitable powers.

       Because we find the first rationale expressed in Hadix to be

persuasive standing alone, we do not address the constitutionality

of the automatic stay provision as interpreted by the prison

officials and the prisoners.            Although we recognize the rule of

statutory    construction        requiring     courts      to   construe   statutes

consistently with the Constitution, the application of that rule is

not necessary here.        As written, the statute simply does not state

with   sufficient     specificity       that   the    district     court   may    not

exercise its equitable power to stay judicial orders.                      There is




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therefore no violation of the Separation of Power doctrine or the

prisoners’ due process rights.

      As we noted previously, we have been given no statutory

guidance with respect to the standard of review for such an

appeal.6         However,       because     the      issue    before    us    is    the

constitutionality of the automatic stay provision, we do not decide

the   appropriate       standard       of   review    beyond    holding      that   the

appellate court may address the merits of a district court’s

decision to suspend an (e)(2) stay and noting the traditional

principles of equity should apply.

                                            IV

      We   sum    up.       In    this      case,     the    district    court      held

unconstitutional the automatic stay provision of the PLRA, as

originally enacted and as amended.                The district court later ruled

on the prison officials’ motion to terminate the consent decree,

denying    relief       under    the    statute       because   the     statute     was

unconstitutional.        We therefore first had to consider whether the

district court’s later ruling rendered the instant appeal moot. We

      6
     The district court and the French court seem to conclude that
our standard of review is solely one of constitutionality-- i.e.,
if 18 U.S.C. § 3626(e) is constitutional, the district court must
be reversed. The government, on the other hand, suggests that a
district court has the authority to stay the (e)(2) stay on
application by the plaintiffs in two limited circumstances: (1)
when, under traditional preliminary injunction factors, plaintiffs
have made a sufficient showing on the merits of the termination
motion; and (2) when it would be inequitable to require the
plaintiffs to make such a showing because circumstances beyond the
plaintiffs’ control make it impossible for plaintiffs to present
sufficient information about current prison conditions.




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find that it does not because the alleged injury incurred here--the

prison officials’ right to the operation of the automatic stay--is

capable of repetition yet evading review.

     Turning   to   the   constitutionality   of   the    automatic   stay

provision, we note that nowhere in the language of § 3626(e) is

there either a direct statement or the basis for an inference that

Congress intended to curtail the district courts’ equitable powers.

Under our reading of § 3626(e), the district court therefore

retains its discretion to suspend the (e)(2) stay and § 3626(e) is

therefore constitutional.       For that reason, we hold that the

district court erred in holding the provision unconstitutional.

     For the foregoing reasons, the order of the district court is

                                                         R E V E R S E D.




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