                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


MARCIANO PLATA; OTIS SHAW; RAY          No. 13-15466
STODERD; JOSEPH LONG; LESLIE
RHOADES; GILBERT AVILES; PAUL              D.C. No.
DECASAS; STEVEN BAUTISTA;               3:01-cv-01351-
RAYMOND JOHNS; ELIJAH J.                     TEH
SANDOVAL; GARY ALAN SMITH;
CLIFFORD MYELLE; DONDI VAN
HORN,                                     OPINION
              Plaintiffs-Appellees,

MEDICAL DEVELOPMENT
INTERNATIONAL,
               Petitioner-Appellee,

                  v.

EDMUND G. BROWN, JR., Governor
of the State of California; JEFFREY
A. BEARD, Dr., Secretary of the
California Department of
Corrections and Rehabilitation; ANA
J. MATOSANTOS, Director of the
Department of Finance,
               Defendants-Appellants,


J. CLARK KELSO,
                  Receiver-Appellee.
2                         PLATA V. BROWN

             Appeal from the United States District Court
                for the Northern District of California
        Thelton E. Henderson, Senior District Judge, Presiding

                      Argued and Submitted
           September 11, 2013—San Francisco, California

                         Filed May 28, 2014

        Before: Mary M. Schroeder and Jay S. Bybee, Circuit
        Judges, and Ralph R. Beistline, Chief District Judge.*

                    Opinion by Judge Schroeder;
                      Dissent by Judge Bybee


                           SUMMARY**


                       Prisoner Civil Rights

    The panel construed an appeal, filed by California
Governor Jerry Brown and state officials, as a petition for
writ of mandamus and so construed, denied the petition in an
ongoing prison class action concerning the provision of health
care in California prisons.




    *
   The Honorable Ralph R. Beistline, Chief United States District Judge
for the District of Alaska, sitting by designation.
  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      PLATA V. BROWN                           3

    California prisons have been operating under a
receivership since 2006 to comply with consent decrees
aimed at curing egregious constitutional violations. After the
State indicated that it would seek to terminate injunctive
relief under the decrees, the district court ordered the State to
disclose its expert witnesses and their reports 120 days before
moving to terminate. The State contends that the district
court’s order impermissibly delayed its ability to move to
terminate under the Prison Litigation Reform Act and also
impermissibly delayed the automatic stay that would follow
after thirty days elapsed without a district court decision on
the termination motion. See 18 U.S.C. § 3626(b)(1), (e)(2).

    The panel determined that because the district court’s
order was interlocutory and procedural in nature, and did not
resolve any issue on the merits, the panel lacked appellate
jurisdiction over the matter. The panel construed the appeal
as a petition for writ of mandamus and considered the issues
under the factors set forth in Bauman v. United States District
Court, 557 F.2d 650, 654–55 (9th Cir. 1977).

    The panel held that district court’s order was a sensible
scheduling order designed to provide the court and plaintiffs
with adequate notice of the evidence the State intended to rely
upon in a motion to terminate. The order established a
schedule for expert disclosures that was consistent with the
State’s own time line, and it did not affect the operation of the
Prison Litigation Reform Act’s automatic stay. Because the
panel upheld the district court’s order as consistent with the
provisions of the Prison Litigation Reform Act, it did not
reach plaintiffs’ claim that without the notice provisions of
the order, the automatic stay provision violated due process.
4                     PLATA V. BROWN

    Dissenting, Judge Bybee stated that the purpose and effect
of the district court’s order was to delay the operation of the
Prison Litigation Act’s automatic stay. Judge Bybee stated
that the order was flatly inconsistent with the Prison
Litigation Act both in text and in spirit.


                         COUNSEL

Kamala D. Harris, Attorney General of California, Jonathan
L. Wolff, Senior Assistant Attorney General, Thomas S.
Patterson, Supervising Deputy Attorney General, Jose A.
Zelidon-Zepeda (argued), Deputy Attorney General, San
Francisco, California, for Defendants-Appellants.

Donald Specter, Rebekah Evenson, Kelly Knapp (argued),
Prison Law Office, Berkeley, California, for Plaintiffs-
Appellees.


                         OPINION

SCHROEDER, Circuit Judge:

    We deal with still another phase of litigation aimed at
curing egregious constitutional violations in the operation of
the California prison system. The Supreme Court in 2011
said the violations “remain uncorrected” after having
“persisted for years.” Brown v. Plata, 131 S. Ct. 1910, 1922
(2011). The Court there affirmed a three-judge district court
order releasing prisoners in accordance with the strictures of
the Prison Litigation Reform Act (“PLRA”).
                      PLATA V. BROWN                         5

    California prisons have been operating under a
receivership since 2006 to comply with consent decrees. This
appeal involves provisions of the PLRA relating to the
termination of such decrees. Congress, concerned by what it
viewed as unnecessary delays in bringing prison litigation to
an end, provided that prison litigation defendants could move
to terminate injunctive relief after two years, and that the
injunction order would be subject to an automatic stay if the
district court took more than thirty days to decide the motion.
18 U.S.C. § 3626(b)(1)(A)(i), (e)(2).

     After the Supreme Court affirmed the three-judge court
decision concerning the release orders in this case, the three-
judge court in early 2013 asked the State when it intended to
file a motion to terminate. The district court had appointed
experts to evaluate the prisons’ progress and had established
a schedule for reporting.

    The State, anxious to end the entire litigation, responded
to the three-judge court in February 2013 that it hoped to be
able to file a motion to terminate the injunctive relief within
a few months. Plaintiffs indicated their need to file an
informed response to any such motion, so the district court
granted Plaintiffs’ motion to reopen discovery. The court
ordered the State to disclose its expert witnesses and their
reports at least 120 days before it filed a motion to terminate
relief. This would provide Plaintiffs and the court with the
ability to understand and evaluate the basis for the motion.

    The State filed a notice of appeal seeking our court’s
review of that order. The State contends that the order
violates the PLRA by delaying its ability to move for
termination and thus delaying the automatic stay that would
follow after thirty days elapsed without a district court
6                      PLATA V. BROWN

decision on the motion. See 18 U.S.C. § 3626(b)(1), (e)(2).
It is apparent from the record, however, that the order is a
scheduling order to coordinate the filing of a termination
motion with discovery disclosures. It was crafted to fit the
State’s own time line for seeking termination. While the
PLRA authorizes the filing of a termination motion after two
years, the State has not yet filed or attempted to file a motion
to terminate. It is the nature of the litigation, not the district
court’s order, that prevented the State from filing a motion
earlier.

    It follows that the district court’s order does not affect the
availability of the automatic stay, since it would only be
triggered thirty days after the filing of the motion, and then
only if the district court failed to reach a decision within that
time period. The district court has violated no statutory time
limits.

    The appropriateness of the order in this case becomes
apparent with an understanding of the background of the
PLRA and the historic complexity of this litigation. A time
line of this litigation is attached as Appendix A.

    With respect to appellate jurisdiction, we conclude that
the order itself is not appealable, but the issues are
sufficiently significant to warrant review by mandamus. We
ultimately deny relief.

              STATUTORY BACKGROUND

     Congress enacted the PLRA in order to expedite prison
litigation and place control over prisons back into the hands
of state and local officials. See 141 Cong. Rec. S14418 (daily
ed. Sept. 27, 1995) (statement of Sen. Hatch); 141 Cong. Rec.
                      PLATA V. BROWN                           7

S14317 (daily ed. Sept. 26, 1995) (statement of Sen.
Abraham). To address what Congress perceived as judicial
micro-management of the nation’s prisons, see Gilmore v.
California, 220 F.3d 987, 996–97 (9th Cir. 2000), the PLRA
established standards for the entry, enforcement, and
termination of remedial relief in prison litigation, Miller v.
French, 530 U.S. 327, 331 (2000).

    Under the PLRA, a defendant in prison litigation may
move to terminate any prospective relief two years after the
date the court approved the relief.                18 U.S.C.
§ 3626(b)(1)(A)(i). The court must “promptly rule” on a
motion to terminate, and mandamus shall lie where the court
fails to do so. Id. § 3626(e)(1). In addition, a motion
pursuant to the PLRA to terminate prospective relief operates
as an automatic stay of the relief, beginning thirty days after
the motion is filed and ending on the date the court rules on
the motion. Id. § 3626(e)(2). The automatic stay may be
postponed for up to sixty days for good cause, which does not
include congestion of the court’s calendar. Id. § 3626(e)(3).

            PROCEDURAL BACKGROUND

    In 2001, Plaintiffs filed this class action lawsuit on behalf
of California prisoners alleging that defects in the prison
healthcare system violated the Eighth Amendment and the
Americans with Disabilities Act. Plata v. Schwarzenegger,
603 F.3d 1088, 1091 (9th Cir. 2010). Early in the litigation,
the parties entered into two consent decrees. The first, in
2002, required the State to implement various remedial
measures to ensure the provision of constitutionally adequate
healthcare in California prisons. Id. When little progress had
been made by 2004, the parties entered into an additional
consent decree designed to ensure the competency of medical
8                     PLATA V. BROWN

staff and establish appropriate procedures for identifying and
treating high-risk patients. Id.

    When no prison had successfully implemented these
remedial measures by 2005, the district court issued an order
to show cause as to why the State should not be held in
contempt and why the court should not appoint a receiver to
manage prison healthcare. Id. The court found that the State
had “repeatedly delayed [its] progress and ultimately failed to
achieve even a semblance of compliance” with the consent
decrees. In early 2006, the court appointed a receiver. Id. at
1092.

    In 2007, the district court granted Plaintiffs’ motion to
convene a three-judge court to address whether a prisoner
release order was warranted. Brown v. Plata, 131 S. Ct. at
1922; see also 18 U.S.C. § 3626(a)(3) (PLRA provisions
governing prisoner release orders). The three-judge court
issued a prisoner release order after making the requisite
findings under the PLRA, and the Supreme Court affirmed
that order in 2011. Brown v. Plata, 131 S. Ct. at 1923.

    In early 2012, the district court ordered the parties to meet
and confer regarding post-receivership planning. Several
months later, the district court entered an order setting forth
a receivership transition plan, which included a requirement
that court-appointed experts evaluate the state of medical care
at each prison.

    On January 29, 2013, the three-judge court directed the
State to answer whether it intended to file a motion to
terminate prospective relief in Plata and, if so, when it
intended to file such a motion. Several weeks earlier, the
State had moved to terminate prospective relief in Coleman
                      PLATA V. BROWN                          9

v. Brown, a related class action concerning mental healthcare
in California prisons. The State had not indicated whether it
would file a similar motion in Plata.

    In its response filed February 12, 2013, the State
represented that it would move to terminate relief if the court-
appointed experts “fail to conduct an appropriate or timely
evaluation of the prison medical care system,” and that it
would be ready to do so “in a few months.” Concerned that
they would not have sufficient time to prepare a response to
the State’s motion before the PLRA’s automatic stay took
effect, Plaintiffs filed an emergency motion to reopen
discovery, and the court granted it.

    The district court then entered the order on review here.
The court found that it would be “fundamentally unfair” to
allow the State an unlimited amount of time to prepare its
motion to terminate, while providing Plaintiffs only the
limited time allowed by the PLRA’s automatic stay provision
to prepare an adequate opposition. Citing the complexity of
the case, the need for detailed factual inquiry to determine
whether the case should be terminated, the restrictions of the
PLRA’s automatic stay provision, and the requirements of
Federal Rules of Civil Procedure 26(a)(2)(A)–(C), the court
ordered the State to disclose its supporting witnesses and
reports at least 120 days prior to filing a termination motion.

    The State filed a notice of appeal from the district court’s
order, arguing that it impermissibly extended both the time
when defendants may move to terminate prospective relief
under the PLRA and the time at which the PLRA’s automatic
stay would take effect. Plaintiffs question whether this court
has jurisdiction to review the district court’s order.
10                    PLATA V. BROWN

             APPELLATE JURISDICTION

    There is a threshold issue of jurisdiction, for Plaintiffs
point out that the district court’s order is interlocutory,
procedural in nature, and does not resolve any issue on the
merits. They correctly contend that we lack appellate
jurisdiction under 28 U.S.C. § 1291 dealing with appeals
from final judgments, or under the principal avenues for
appeal from interlocutory orders that decide the merits of
claims or issues. See Fed. R. Civ. P. 54(b); Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).

      The State offers four grounds for appellate jurisdiction,
none of which are sufficient. The State first argues that the
district court’s order is appealable as a post-judgment order.
We have held that an order entered after the underlying
dispute has been settled is appealable because it does not
implicate the concern with avoiding piecemeal appellate
review that underlies the final judgment rule. United States
v. State of Washington, 761 F.2d 1404, 1406 (9th Cir. 1985);
see also Armstrong v. Schwarzenegger, 622 F.3d 1058, 1064
(9th Cir. 2010); United States v. One 1986 Ford Pickup,
56 F.3d 1181, 1184–85 (9th Cir. 1995). Review of the order
here, however, does raise the problem of piecemeal review,
because this particular litigation has been in the post-
judgment, remedial phase since the entry of the first consent
decree in 2002. Such consent decrees operate as final
judgments. Jeff D. v. Kempthorne, 365 F.3d 844, 850 (9th
Cir. 2004) (“[C]onsent decrees are considered final judgments
. . . .”). The district court has since 2002 entered a number of
orders designed to facilitate the State’s compliance with the
consent decrees and help draw this case to a close. If this
order were immediately appealable as a post-judgment order,
then every scheduling order setting the framework for further
                      PLATA V. BROWN                          11

proceedings in this case might also be immediately
appealable. We therefore agree with the observation of the
Seventh Circuit that each case management order
implementing a consent decree cannot readily be considered
a final post-judgment order for purposes of appeal. United
States v. Accra Pac, Inc., 173 F.3d 630, 632 (7th Cir. 1999).

    The State also argues that the district court’s order is
appealable under the collateral order doctrine. This doctrine
provides that some rulings that do not end the litigation will
be deemed final because they are “too important to be denied
review” and too independent of the merits of the case to
require deferral of review. Cohen, 337 U.S. at 546; see also
Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009).
To warrant review under the collateral order doctrine, the
order must “(1) conclusively determine the disputed question,
(2) resolve an important issue completely separate from the
merits of the action, and (3) be effectively unreviewable on
appeal from a final judgment.” Will v. Hallock, 546 U.S. 345,
349 (2006) (citations omitted) (internal quotation marks
omitted).

    Plaintiffs point out that because the order is essentially a
scheduling order, it does not conclusively determine or
resolve any issue. Moreover, the State’s argument regarding
the collateral order doctrine suffers from the same problem as
its argument with respect to post-judgment orders. The
collateral order doctrine is a “narrow exception” that “should
stay that way and never be allowed to swallow the general
rule that a party is entitled to a single appeal . . . .” Digital
Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868
(1994) (internal citation omitted); see also Mohawk Indus.,
Inc., 558 U.S. at 106. Applying the collateral order doctrine
here would open the door to piecemeal review of a large class
12                    PLATA V. BROWN

of post-judgment case management orders designed to
facilitate the close of litigation. See Truckstop.net, LLC v.
Sprint Corp., 547 F.3d 1065, 1068 (9th Cir. 2008) (“[W]hen
a court identifies an order as an appealable, collateral one, it
determines the appealability of all such orders.” (citation
omitted)). The order, therefore, is not appealable under the
collateral order doctrine.

    The State’s final arguments regarding jurisdiction arise
from the PLRA itself. The PLRA provides that “[a]ny order
staying, suspending, delaying, or barring the operation of the
automatic stay . . . shall be treated as an order refusing to
dissolve or modify an injunction and shall be appealable
pursuant to [28 U.S.C. §] 1292(a)(1) . . . .” 18 U.S.C.
§ 3626(e)(4). It also provides that the district court must
promptly rule on any motion to terminate prospective relief,
and that mandamus shall lie where the court fails to do so. Id.
§ 3626(e)(1). These PLRA provisions do not apply because
the district court has not failed to rule on any motion to
terminate. There has been none, so the district court’s order
does not delay the operation of an automatic stay that would
be triggered only after such a motion is filed.

    Lack of jurisdiction over an appeal does not necessarily
foreclose review by this court if the issues raised are
significant enough to warrant review by mandamus. See, e.g.,
Perry v. Schwarzenegger, 591 F.3d 1147, 1157 (9th Cir.
2009) (holding that mandamus is appropriate to review a
discovery order that raises novel and important questions);
Medhekar v. United States District Court, 99 F.3d 325, 327
(9th Cir. 1996) (noting that mandamus is an especially
appropriate vehicle for review where the court is confronted
with an issue of first impression). We may construe an
appeal of an otherwise non-appealable order as a petition for
                      PLATA V. BROWN                         13

writ of mandamus and consider the issues presented under the
factors set forth in Bauman v. United States District Court,
557 F.2d 650, 654–55 (9th Cir. 1977). Miller v. Gammie,
333 F.3d 889, 895 (9th Cir. 2003) (en banc); see also Special
Invs. Inc. v. Aero Air Inc., 360 F.3d 989, 993 (9th Cir. 2004);
Cordoza v. Pac. States Steel Corp., 320 F.3d 989, 998 (9th
Cir. 2003).

    “Mandamus is an extraordinary remedy that may be
obtained only to confine an inferior court to a lawful exercise
of its prescribed jurisdiction or to compel it to exercise its
authority when it is its duty to do so.” Miller, 335 F.3d at 895
(citation omitted) (internal quotation marks omitted). This
court reviews the district court’s order for clear error and
grants the writ only where the district court has usurped its
power or clearly abused its discretion. Id. (citation omitted).
Under the five factors set forth in Bauman, we consider:

       (1) whether the petitioner has no other means,
       such as direct appeal, to obtain the desired
       relief; (2) whether the petitioner will be
       damaged or prejudiced in any way not
       correctable on appeal; (3) whether the district
       court’s order is clearly erroneous as a matter
       of law; (4) whether the district court’s order is
       an oft-repeated error or manifests a persistent
       disregard of the federal rules; and (5) whether
       the district court’s order raises new and
       important problems or issues of first
       impression.

Perry, 591 F.3d at 1156 (citing Bauman, 557 F.2d at 654–55).
14                     PLATA V. BROWN

     Because the absence of the third factor—clear error by the
district court—is dispositive, Cordoza, 320 F.3d at 998; see
also Perry, 591 F.3d at 1156, we first address whether the
district court clearly erred in requiring the State to disclose its
experts and their reports 120 days prior to filing a motion to
terminate prospective relief. The State maintains the order
conflicts with the PLRA’s provisions authorizing a
termination motion after two years and that it interferes with
what the State seemingly views as a statutory right to a stay.
The court’s order was not entered in a vacuum, however, and
must be assessed in the context of the history of this
litigation.

 THE DISTRICT COURT DID NOT CLEARLY ERR
   IN ISSUING THE ORDER THAT REQUIRES
          DISCLOSURE AND NOTICE

    The district court’s order was entered after twelve years
of litigation and with an eye toward bringing it to a close.
The district court had appointed experts to evaluate the state
of medical care at the prisons, and the State had retained its
own experts. The district court’s order requires the State to
provide the court and Plaintiffs with copies of its experts’
reports at least 120 days before the State moves to terminate
relief.

    The PLRA itself, of course, provides that a defendant may
move to terminate injunctive relief under a consent decree
when two years have elapsed since its imposition. 18 U.S.C.
§ 3626(b)(1)(A)(i). The cases interpreting the statute make
this clear. As the Seventh Circuit explained, “What
subsection (b)(1) does is identify a class of cases that are
eligible for termination: that is, cases in which a district court
must entertain motions to terminate prospective relief. If two
                       PLATA V. BROWN                          15

years have elapsed since the decree was entered . . . then any
party is entitled to file a motion seeking termination.”
Berwanger v. Cottey, 178 F.3d 834, 838 (7th Cir. 1999); see
also Gilmore, 220 F.3d at 999 (“Thus, any prospective relief
becomes terminable, at the latest, two years after its
imposition.”); Cason v. Seckinger, 231 F.3d 777, 780 (11th
Cir. 2000) (“Section 3626(b)(1)(A) establishes specified time
frames under which prospective relief is terminable upon
motion of a party.”).

    The State in this case did not file a motion to terminate
after two years. As a practical matter, the State in this
particular case could not have moved to terminate after two
years. At that point, medical care at the prisons had not come
close to constitutional standards. In 2005—more than two
years after the entry of the first consent decree—the district
court found that “the California prison medical care system
[was] broken beyond repair,” resulting in an “unconscionable
degree of suffering and death.” A motion to terminate would
likely have been futile.

    The State has not indicated that it is ready to file a
termination motion now. It nevertheless contends that the
district court’s order violates the PLRA by requiring the State
to provide notice to the court and Plaintiffs before it files such
a motion.

    The PLRA does not mandate the filing of motions to
terminate at any particular time. The district court in this
case took no action that prevented the State from filing a
motion. The State had never tried to file one and does not
represent it is in a position to file one now.
16                     PLATA V. BROWN

    The State apparently takes the view that the statute is
violated because, if the State wanted to file a motion
immediately, it would not be permitted to do so because of
the court’s order. The State’s own representations, however,
reflect that it is not ready to file a termination motion. In
response to the January 2013 order of the three-judge court
directing the State to answer whether it intended to file a
motion to terminate, the State indicated that it would be
prepared to bring such a motion “in a few months.”

    The district court’s order was thus premised on the State’s
own representations as to when it might file a motion. The
order is therefore not based on an interpretation of the statute,
but upon the circumstances of this case. The State indicated
that it would need several months to prepare a motion to
terminate; the practical effect of the court’s order is to require
the State, while it is preparing its motion, to disclose the
experts’ reports upon which the motion will rely.

    The district court’s order does not preclude a request for
modification of its terms; none has been made. The order is
intended to provide the court and parties adequate notice of
the evidence and the arguments supporting or opposing
termination.

    Moreover, nothing in the text of the PLRA prevents the
district court from setting a schedule for expert disclosures.
The district court’s order is consistent with its broad authority
to manage complex litigation. See Fed. R. Civ. P. 16; United
States v. W.R. Grace, 526 F.3d 499, 509 (9th Cir. 2008)
(noting that the court may issue case management orders
designed to allow the parties to engage in appropriate
discovery and adequately prepare their arguments). It may be
for this reason the State’s argument is couched in terms of a
                      PLATA V. BROWN                         17

violation of the PLRA, rather than an improper exercise of
the court’s case management authority. In any event, we
cannot fault the district court for wanting the parties to be
informed and prepared when the State seeks to terminate
relief.

    Indeed, the Federal Rules of Civil Procedure require
pretrial notice of the expert witnesses and reports to be relied
upon. See Fed. R. Civ. P. 26(a)(2)(A)–(E). The dissent
prefers to characterize the order as an artificial notice
requirement imposed to create delay in this particular case,
but it actually is an order for expert disclosures pursuant to
the Federal Rules of Civil Procedure.

    The relief ordered in this case is complex and has affected
thirty-three different institutions for nearly twelve years. See
Brown v. Plata, 131 S. Ct. at 1939 (noting the “long history
of failed remedial orders” in the case). Providing Plaintiffs
with notice that the State intends to file a motion to terminate
will allow both the State and Plaintiffs to have an adequate
record on which the district court may decide the merits of
the motion. With the benefit of informed briefing from both
parties, the district court will be able to make a timely ruling
on a motion to terminate, as the PLRA contemplates. See
18 U.S.C. § 3626(e)(1).

    It appears that the State’s more practical concern is with
obtaining the automatic stay that the PLRA mandates if the
district court does not rule on the motion to terminate within
thirty days. See id. § 3626(e)(2). The legislative history of
the PLRA indicates that Congress was concerned about
district courts taking too much time to decide termination
motions and thus extending the life of decrees well beyond
the filing of defendants’ motions to terminate them. H.R.
18                     PLATA V. BROWN

Rep. No. 104-21, at 26 (1995) (“By providing that the
prospective relief that is subject to the motion will be stayed
if the motion is not decided promptly, judges will be
motivated to decide the motions and avoid having the stay
automatically take effect.”); see also 143 Cong. Rec. S12269
(daily ed. Nov. 9, 1997) (statement of Sen. Abraham) (noting
that the purpose of the automatic stay provision is to
“discourage delay” in ruling on motions to terminate). The
automatic stay was thus not intended to reward the defendant
filing a termination motion, but to provide an incentive for
the district court to act promptly when such a motion is filed.

    The State asserts that the court’s order violates the statute
by delaying the operation of the stay. Yet pursuant to the
statute, the stay is triggered only by the district court’s failing
to decide a termination motion within thirty days. If no
motion has been filed, there can have been no decisional
delay triggering the stay.

    The words of the statute expressly limit the judge’s time
to decide a motion to terminate. 18 U.S.C. § 3626(e)(2).
They do not repeal the Rules of Civil Procedure that authorize
discovery and require disclosure. They do not endorse
sandbagging.

    The district court’s order is consistent with the Supreme
Court’s decision in Miller v. French, 530 U.S. 327. There the
Court held that the PLRA prohibits district courts from
exercising their equitable authority to suspend the operation
of the automatic stay. Id. at 338. The order here does not
affect the operation of the automatic stay. Any possible stay
of relief is conditioned on two events that have not yet
occurred: the filing of a motion to terminate, and the district
court’s failure to rule on that motion within the time allowed.
                       PLATA V. BROWN                          19

The State cannot file a motion to terminate until at least some
of the experts’ reports on the State’s compliance are in. The
district court’s order does nothing more than coordinate the
filing of a termination motion with the discovery each side
wanted. It embodies the fundamental principle the Supreme
Court laid down more than 60 years ago: “Mutual knowledge
of all the relevant facts gathered by both parties is essential to
proper litigation.” Hickman v. Taylor, 329 U.S. 495, 507
(1947).

    The order thus also furthers the purpose of the automatic
stay provision by ensuring that the district court has the
information it needs to rule quickly on a motion to terminate.
On the basis of the record before this court, there is no reason
to hold the district court’s order has prejudiced the State in
any way.

                       CONCLUSION

    The district court’s order is a sensible scheduling order
designed to provide the court and Plaintiffs with adequate
notice of the evidence the State intends to rely upon in a
motion to terminate. The order establishes a schedule for
expert disclosures that is consistent with the State’s own time
line, and it does not affect the operation of the automatic stay.
There was no clear error in the district court’s issuance of the
order.

    Because we uphold the district court’s order as consistent
with the provisions of the statute, we need not reach
Plaintiffs’ claim that without the notice provisions of the
order, the automatic stay provision violates due process.
20                  PLATA V. BROWN

  The State’s appeal is construed as a Petition for Writ of
Mandamus. So construed, the petition is DENIED.
                   PLATA V. BROWN                         21

                    APPENDIX A

DATE                EVENT

April 5, 2001       Plaintiffs file their Complaint.



June 13, 2002       District court approves the parties’
                    stipulation and order for injunctive
                    relief.



September 17, 2004 District court approves the parties’
                   stipulation and order regarding the
                   quality of patient care and staffing.

May 10, 2005        District court orders the State to show
                    cause why it should not be held in
                    contempt for failing to comply with
                    prior orders and why the court should
                    not appoint a receiver to manage the
                    prison health care system.

October 3, 2005     District court issues its findings of fact
                    and conclusions of law regarding the
                    order to show cause. District court
                    states that it will hold the contempt
                    citation in abeyance and establish a
                    receivership to remedy constitutional
                    violations.
22                  PLATA V. BROWN

February 14, 2006    District court appoints a receiver and
                     suspends the authority of the Secretary
                     of the California Department of
                     Corrections and Rehabilitation.

November 13, 2006    Plaintiffs move to convene a three-
                     judge court to address whether
                     prison overcrowding violates their
                     constitutional rights.

July 23, 2007        District court grants Plaintiffs’ motion
                     to convene a three-judge court.

July 26, 2007        Ninth Circuit designates a three-judge
                     court.

January 28, 2009     State moves to replace the receiver
                     with a special master and to terminate
                     the receiver’s plan regarding
                     construction of additional prisons.

March 24, 2009       District Court denies the State’s
                     motion to replace the receiver with a
                     special master and to terminate the
                     receiver’s plan regarding construction
                     of additional prisons.

August 4, 2009       Three-judge court orders reduction of
                     the prison population.

April 30, 2010       Ninth Circuit affirms the district
                     court’s denial of the State’s motion to
                     replace the receiver with a special
                     master and to terminate the receiver’s
                    PLATA V. BROWN                       23

                     plan regarding construction          of
                     additional prisons.

May 23, 2011         Supreme Court affirms the order of
                     the three-judge court requiring
                     reduction of the prison population.

September 5, 2012    District court issues an order setting
                     forth a plan to transition from the
                     receiver to a special master and to
                     begin expert evaluations of
                     California’s prisons.

January 29, 2013     Three-judge court directs the State to
                     answer whether it intends to file a
                     termination motion.

February 12, 2013    State represents in its response and
                     objections to the January 29, 2013
                     order of the three-judge court that if
                     court-appointed experts “fail to
                     conduct an appropriate or timely
                     evaluation of the prison medical care
                     system,” the state will file a
                     termination motion “in a few months.”

February 14, 2013    Plaintiffs move to reopen discovery.

February 19, 2013    District court grants Plaintiffs’ motion
                     to reopen discovery.

February 21, 2013    District court orders a schedule for
                     expert disclosures should the state opt
                     to file a termination motion.
24                     PLATA V. BROWN

March 11, 2013           State appeals the district court’s
                         February 21, 2013 order.



BYBEE, Circuit Judge, dissenting:

    This case arises out of serious constitutional violations
throughout California’s prison system. Brown v. Plata, 131
S. Ct. 1910 (2011). The complexity of the case
notwithstanding, the sole issue before our panel is nominally
procedural. The Prison Litigation Reform Act (“PLRA”)
provides that “[t]he court shall promptly rule on any motion
to modify or terminate prospective relief in a civil action with
respect to prison conditions.” 18 U.S.C. § 3626(e)(1). If the
district court has not “promptly rule[d]”before the 30th day
after the filing of such a motion, the district court’s injunction
is automatically stayed. Id. § 3626(e)(2). For good cause, the
district court may postpone the effective day of the automatic
stay, up to 60 days. Id. § 3626(e)(3). The question presented
here is: May the district court avoid the statute’s strict
timetable by requiring the State to give 120 days’ notice
before it files a motion to terminate? To ask the question is to
answer it. The answer is plainly “no.”

     I respectfully dissent.

                                I

    “[O]ne of the purposes of the [PLRA] was to restrict
severely the intrusion of the judiciary into the operation of
prisons.” Plata v. Schwarzenegger, 603 F.3d 1088, 1095 (9th
Cir. 2010). For this reason, the PLRA provides that
prospective relief “shall extend no further than necessary to
                      PLATA V. BROWN                        25

correct the violation of the Federal right of a particular
plaintiff or plaintiffs.” 18 U.S.C. § 3626(a)(1)(A).
Accordingly, a district court may not grant prospective relief
with respect to prison conditions “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.” Id.; see also id. § 3626(b)(2).

    In addition, the PLRA provides standards and timetables
by which prospective relief may be terminated. There are two
relevant provisions here. First, § 3626(b)(1) sets dates by
which prospective relief becomes terminable:

       In any civil action with respect to prison
       conditions in which prospective relief is
       ordered, such relief shall be terminable upon
       the motion of any party or intervener–

           (i) 2 years after the date the court granted
           or approved the prospective relief;

           (ii) 1 year after the date the court has
           entered an order denying termination of
           prospective relief under this paragraph; or

           (iii) in the case of an order issued on or
           before the date of enactment of the
           [PLRA], 2 years after such date of
           enactment.

Id. (emphasis added). As the verb “shall” indicates, this
statutory timetable is mandatory. See Alabama v. Bozeman,
533 U.S. 146, 153 (2001) (“The word ‘shall’ is ordinarily the
26                         PLATA V. BROWN

language of command.” (internal quotation marks and citation
omitted)); Our Children’s Earth Found. v. EPA, 527 F.3d
842, 847 (9th Cir. 2008) (“When Congress specifies an
obligation and uses the word ‘shall,’ this denomination
usually connotes a mandatory command.”). “Thus, any
prospective relief becomes terminable, at the latest, two years
after its imposition.” Gilmore v. California, 220 F.3d 987,
999 (9th Cir. 2000).

    Second, the PLRA accelerates rulings on motions for
termination. Specifically, the PLRA provides that district
courts “shall promptly rule” on such motions and authorizes
mandamus relief for failure to do so. 18 U.S.C. § 3626(e)(1).
What is more, injunctive relief is automatically stayed 30
days after the filing of a motion to terminate, subject only to
a 60-day postponement for “good cause.” Id. § 3626(e)(2),
(3). This automatic stay provision acts as an enforcement
mechanism on district courts to ensure prompt rulings on
motions for termination.1 Finally, the PLRA contains an
immediate appeal provision. Section 3626(e)(4) states that
“[a]ny order staying, suspending, delaying, or barring the
operation of the automatic stay” imposed by § 3626(e)(2)
“shall be appealable” pursuant to 28 U.S.C. § 1292(a)(1).

                                      II



   1
     The automatic stay does not permanently dissolve the injunction.
Instead, it stays the injunction “during a fixed period of time, i.e., from 30
(or 90) days after the motion is filed until the court enters a final order
ruling on the motion.” Miller v. French, 530 U.S. 327, 337 (2000). As
soon as the district court makes written findings based on the record that
prospective relief remains necessary, extends no further than necessary,
and is narrowly drawn, the automatic stay is lifted. 18 U.S.C.
§ 3626(b)(3).
                      PLATA V. BROWN                         27

    On February 12, 2013, the State represented to the district
court that it was considering filing a motion to terminate. In
response, plaintiffs requested that discovery be reopened to
allow them to investigate current conditions in California’s
prison system in anticipation of the State’s motion to
terminate prospective relief. The district court granted
plaintiffs’ request and ordered the State to disclose its expert
witnesses and their reports at least 120 days before it filed a
motion to terminate. In the district court’s view, it would be
fundamentally unfair to give the State unlimited time to
prepare its motion to terminate while allowing plaintiffs only
the time allowed by the PLRA’s automatic stay to prepare
their opposition in such a complex case. The State promptly
sought relief from this court.

     The district court’s order violates the plain and
unambiguous command of the PLRA that all prospective
relief orders “become[] terminable, at the latest, two years
after [their] imposition.” Gilmore, 220 F.3d at 999; see also
Berwanger v. Cottey, 178 F.3d 834, 838 (7th Cir. 1999)
(“What subsection (b)(1) does is identify a class of cases that
are eligible for termination: that is, cases in which a district
court must entertain motions to terminate prospective
relief.”). Congress did not carve out any exceptions to this
mandate, not even for complex cases involving large prison
systems. The State therefore had the right to move for
termination at any point 2 years after relief was entered.
18 U.S.C. § 3626(b)(1)(i). More than a decade after relief was
first entered, however, the district court stripped the State of
its right to move for termination and, contrary to the express
provisions of the statute, imposed an additional 120-day
waiting period in the name of fairness.
28                    PLATA V. BROWN

    Furthermore, the district court’s concerns regarding the
expedited timetable for the termination of prospective relief
cannot justify a departure from the statute’s clear mandate.
The PLRA imposes an automatic stay on injunctive relief 30
days after the filing of a motion to terminate to ensure that
district courts rule promptly on such motions. 18 U.S.C.
§ 3626(e)(2). For good cause, however, the district court may
postpone the effective date of the automatic stay for up to an
additional 60 days. Id. § 3626(e)(3). Good cause presumably
exists in unusually complex cases like this one. Accordingly,
there is no reason to go beyond the statute in search of
fairness. Congress has already weighed the competing
interests and has struck what it believes to be the appropriate
balance.

    The purpose and effect of the district court’s order is to
delay the operation of the automatic stay. See id.
§ 3626(e)(2), (3), (4). As the Supreme Court has explained,
however, “[v]iewing the automatic stay provision in the
context of § 3626 as a whole [ ] confirms that Congress
intended to prohibit federal courts from exercising their
equitable authority to suspend operation of the automatic
stay.” Miller, 530 U.S. at 338. Thus, the order is flatly
inconsistent with the PLRA, both text and spirit.

                              III

    The majority rationalizes the district court’s order by
arguing that it is “consistent with [the district court’s] broad
authority to manage complex litigation.” Maj. Op. at 16. In
fact, the majority says, the order is based not “on an
interpretation of the statute, but [rather on] the circumstances
of this case.” Maj. Op. at 16.
                      PLATA V. BROWN                        29

    The Supreme Court addressed this argument in Miller v.
French. There, two circuits had ruled that federal courts, “in
the exercise of their traditional equitable authority, [could]
enjoin operation of the PLRA’s automatic stay provision.”
530 U.S. at 336. The Court rejected these rulings:

       To allow courts to exercise their equitable
       discretion to prevent the stay from
       “operating” during this statutorily prescribed
       period would be to contradict § 3626(e)(2)’s
       plain terms. It would mean that the motion to
       terminate merely may operate as a stay,
       despite the statute’s command that it “shall”
       have such effect. . . .

           Viewing the automatic stay provision in
       the context of § 3626 as a whole [ ] confirms
       that Congress intended to prohibit federal
       courts from exercising their equitable
       authority to suspend operation of the
       automatic stay.

Id. at 338. Significantly, the Court observed that “curbing the
equitable discretion of district courts was one of the PLRA’s
principal objectives.” Id. at 339. Where a statutory scheme
makes it clear that a court “has no authority to create
equitable exceptions to jurisdictional requirements,” the “use
of the ‘unique circumstances’ doctrine is illegitimate.”
Bowles v. Russell, 551 U.S. 205, 214 (2007).

   Next, the majority asserts that “nothing in the text of the
PLRA prevents the district court from setting a schedule for
expert disclosures.” Maj. Op. at 16. I agree that the PLRA
does not expressly forbid district courts from setting
30                         PLATA V. BROWN

discovery schedules, but the point is irrelevant. By
compelling district courts to adhere to a strict timetable, the
PLRA forbids them from adopting a rule or procedure or
schedule inconsistent with its statutory mandate.2 We expect
district courts to exercise their authority and judgment to
manage complex litigation, but they must do so within the
PLRA’s parameters.3 Just because district courts have broad
discretion to manage cases does not mean that they may
exercise that discretion in derogation of the United States
Code or the Federal Rules of Civil Procedure. Indeed, the
essence of an abuse of discretion is for the district court to
exercise its discretion in the face of a contrary rule of law.
See Koon v. United States, 518 U.S. 81, 100 (1996) (“A
district court by definition abuses its discretion when it makes
an error of law.”); Abdullah v. U.S. Sec. Assocs., Inc., 731
F.3d 952, 956 (9th Cir. 2013) (“[A]n error of law is a per se
abuse of discrection.”).

     In addition, the majority emphasizes that the State did not
file a motion to terminate 2 years after relief was entered, that
a motion filed at that time likely would have been futile, and

  2
     The majority also states that the Federal Rules of Civil Procedure
require pretrial disclosure of expert witnesses and reports. Maj. Op. at 17.
I agree with that statement but fail to see its significance in this case. Yes,
Federal Rule of Civil Procedure 26(a)(2) requires expert disclosures, but
it does not mandate their timing here. There is no conflict between Rule
26(a)(2) and the PLRA. Rule 26(a)(2) cannot possibly justify the district
court’s variance from the PLRA’s mandatory timetable.
  3
    In this case, for example, the district court was free to set a schedule
for expert disclosures during the 2-year period after the consent decree
was entered. Now that the 2-year period has passed, however, the PLRA
prevents the district court from setting a schedule for expert disclosures if
that schedule prevents the State from filing its motion at the time of its
choosing. 18 U.S.C. § 3626(b)(1).
                          PLATA V. BROWN                                31

that the State is not ready to file its motion even now. Maj.
Op. at 15. This line of reasoning loses sight of the issue
before us. We are not reviewing the timing or merit of the
State’s motion at this juncture; we are reviewing the district
court’s order that the State give 120 days’ notice before it
files any motion to terminate. In my view, the likely futility
of filing a motion years ago and the readiness of the State to
file today are irrelevant to the question of whether the district
court’s order violated the PLRA. And on that issue, the
analysis is clear: the PLRA does not allow district courts to
extend the mandatory timetable for the filing of motions to
terminate prospective relief, as did the district court’s order
here.

    Finally, the majority contends that the State has not
triggered the automatic stay provision’s 30-day clock because
it has not yet filed a motion to terminate prospective relief.
Maj Op. at 18. That is correct as far as it goes, but blaming
the State for failing to trigger the 30-day clock ignores the
fact that the district court has intervened to delay the
triggering event itself. The federal courts cannot circumvent
congressional intent so easily. Thus, although I agree with the
majority that the 30-day clock is not yet ticking, I nonetheless
would conclude that the district court’s order delays the
operation of the automatic stay.4 Were it not so, a district



  4
    Accordingly, unlike the majority, I would review this appeal under
18 U.S.C. § 3626(e)(4) (“Any order . . . delaying . . . the operation of the
automatic stay . . . 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.”), rather than as an exercise of our mandamus jurisdiction under
the All Writs Statute, 28 U.S.C. § 1651. Maj. Op. at 12–14; see 18 U.S.C.
§ 3626(e)(1) (authorizing an action in mandamus).
32                        PLATA V. BROWN

court could simply prohibit all motions to terminate and
evade the operation of the automatic stay entirely.5

                                    IV

    As courts of law, we are frequently called upon to enforce
timetables prescribed by statute or rule. Sometimes these are
jurisdictional. See, e.g., Bowles, 551 U.S. at 208–15
(enforcing 28 U.S.C. § 2107’s deadline for filing an appeal
even though the petitioner had filed his notice within the
extended period granted by the district court). Sometimes
they are not. See, e.g., United States v. Luk, 859 F.2d 667, 669
n.2 (9th Cir. 1988) (denying as untimely a motion for limited
remand). We do not hesitate, notwithstanding our concerns
with separation of powers or federalism, to enforce statutory
deadlines against the executive branch or against state
entities. See, e.g., Citizens for Responsibility & Ethics in
Wash. v. FEC, 711 F.3d 180, 190 (D.C. Cir. 2013) (enforcing
against the FEC a 20-day deadline for making and
communicating a “determination” in response to a FOIA
request); Withrow v. Concannon, 942 F.2d 1385, 1387 (9th
Cir. 1991) (holding that state agency must strictly comply
with federal regulations requiring administrative action
within 90 days from the date a hearing is requested).

    And, although less common, Congress sometimes has
imposed strict deadlines on us as well. See, e.g., 28 U.S.C.
§ 1453(c)(2), (3) (requiring the courts of appeals to “complete


  5
    Plaintiffs argue that the district court’s order is necessary to protect
their due process right to an opportunity to fully and adequately prepare
a response to the State’s motion to terminate. The majority has not
addressed the issue. It seems like a stretch. See Gilmore, 220 F.3d at 1008
(“No circuit court has found the PLRA to violate due process.”).
                      PLATA V. BROWN                         33

all action on [review of a remand order under CAFA],
including rendering judgment, not later than 60 days after the
date on which such appeal was filed” unless “all parties to the
proceeding agree to such extension, for any period of time”
or “such extension is for good cause shown and in the
interests of justice, for a period not to exceed 10 days”). We
don’t like it, but we have nevertheless self-enforced such
deadlines, even when we have been tempted to extend the
deadline because of “circumstances.” See Lewis v. Verizon
Commc’ns, Inc., 627 F.3d 395, 398 (9th Cir. 2010) (“[A]n
appeal must be decided within 60 days after it is filed.
28 U.S.C. § 1453(c)(2). Hence, we are required to decide this
appeal no later than November 22, 2010, 60 days after the
petition for appeal was granted.”); Lowdermilk v. U.S. Bank
Nat’l Ass’n, 479 F.3d 994, 996–97 (9th Cir. 2007) (granting
ourselves the 10-day extension for “good cause,” but noting
that one of the parties refused to grant the court any further
extension), overruled on other grounds by Standard Fire Ins.
Co. v. Knowles, 133 S. Ct. 1345, 1350 (2013).

     Sometimes we have exercised our discretion to extend
statutory or regulatory deadlines when we have felt that
tolling or some other equitable principle has demanded it.
See, e.g., Wong v. Beebe, 732 F.3d 1030, 1033 (9th Cir. 2013)
(en banc) (holding that equitable tolling of the statute of
limitations is available in FTCA actions); Avagyan v. Holder,
646 F.3d 672, 679 (9th Cir. 2011) (finding that petitioner may
obtain equitable tolling during periods when he is prevented
from filing a motion to reopen removal proceedings “because
of a deception, fraud, or error, as long as petitioner acts with
due diligence” (internal quotation marks and citation
omitted)); Bills v. Clark, 628 F.3d 1092, 1099–1100 (9th Cir.
2010) (articulating a two-part test to determine whether a
mental impairment amounts to an “extraordinary
34                    PLATA V. BROWN

circumstance” warranting equitable tolling under AEDPA).
But there is no room in this statute for an equitable argument.
Congress has made it plain that the State may file its motion
to terminate after 2 years, that the district court “shall
promptly rule” on the State’s motion, and that the State’s
motion “shall operate” as an automatic stay after 30 days
until the district court enters its final order ruling on the
motion. 18 U.S.C. § 3626(e)(1). Congress’s decision to
impose such strict deadlines may well affect the substantive
arguments that counsel will be able to make in defense of the
injunction, but that is a consequence of Congress’s choices
and is not avoidable by the exercise of our discretion.

                              V

     Absent statutory interference, district courts have broad
discretion in managing their cases. But here, the PLRA
decrees that all prospective relief orders become terminable,
at the latest, 2 years after their imposition. Not 2 years and 1
day, and certainly not 2 years and 120 days, as required by
the district court’s order and upheld by the majority today. I
respectfully dissent.
