                                                                                    PUBLISH


                      IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT
                                                                          FILED
                                                                  U.S. COURT OF APPEALS
                                      _______________               ELEVENTH CIRCUIT
                                                                         04/23/99
                                        No. 97-6818                  THOMAS K. KAHN
                                      _______________                     CLERK

                              D. C. Docket No. CV-86-V-461-N


JACKIE NICHOLS, CAROL REGISTER, et al.,

                                                                         Plaintiffs-Appellants,


                                            versus


JOE S. HOPPER, Commissioner, Alabama
Department of Corrections; WAYNE TEAGUE,
Superintendent, Alabama Board of Education,
et al.,

                                                                        Defendants-Appellees.

                             ______________________________

                         Appeal from the United States District Court
                             for the Middle District of Alabama
                            ______________________________

                                       (April 23, 1999)


Before BIRCH and BARKETT, Circuit Judges, and ALAIMO*, Senior District Judge.

__________________
*Honorable Anthony A. Alaimo, Senior U.S. District Judge for the Southern District of Georgia,
sitting by designation.
BIRCH, Circuit Judge:

      In this case, we consider whether the immediate termination provisions of

the Prison Litigation Reform Act (“PLRA”), codified at 18 U.S.C. § 3626(b),

violate the separation of powers doctrine as articulated in United States v. Klein,

80 U.S. (13 Wall.) 128, 20 L.Ed. 519 (1871).

                               I.   BACKGROUND

      On October 5, 1987, the district court entered a consent order, agreed upon

by the parties, concerning the conditions of confinement at the Julia Tutwiler

Prison for Women in Wetumpka, Alabama. The consent order remained in effect

until the Attorney General of Alabama and the Alabama Department of Corrections

filed a motion to terminate the order on July 2, 1997, pursuant to the immediate

termination provision of the PLRA which provides:

      Immediate termination of prospective relief. – In any civil action
      with respect to prison conditions, a defendant or intervener shall be
      entitled to the immediate termination of any prospective relief if the
      relief was approved or granted in the absence of a finding by the court
      that the 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.




                                          2
18 U.S.C. § 3626(b)(2). The district court granted the motion to terminate. On

appeal, appellants challenge the constitutionality of section 3626(b)(2), arguing

that the statute violates the separation of powers doctrine.1

        We addressed several constitutional issues concerning section 3626(b)(2) in

Dougan v. Singletary, 129 F.3d 1424 (11th Cir. 1997) (per curiam), cert. denied,

___ U.S. ___, 118 S. Ct. 2375, 141 L.Ed.2d 743 (1998). In Dougan, we held that

the termination provision did not violate the Fifth Amendment's Due Process

Clause, id. at 1426-27; did not violate the equal protection component of the Fifth

Amendment, id. at 1427; and did not violate the separation of powers doctrine, id.

at 1426. Our separation of powers analysis, however, concerned only the aspect of

the doctrine that forbids legislation that “command[s] the federal courts to reopen

final judgments.” See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219, 115 S.

Ct. 1447, 1453, 131 L.Ed.2d 328 (1995). We upheld the statute in light of this

particular separation of powers challenge, finding that a consent decree “does not

undermine the finality of a final judgment in the separation of powers sense.”

Dougan, 129 F.3d at 1426. We specifically left open, however, the rules of

decision aspect of the separation of powers doctrine as articulated in United States


        1
          We note that appellants do not challenge the Attorney General's assertion that the consent order
contained no findings concerning the scope of the consent decree. Appellants instead attack only the
constitutionality of the statute itself.

                                                     3
v. Klein, 80 U.S. (13 Wall.) 128, 20 L.Ed. 519 (1871). See Dougan, 129 F.3d at

1426 n.10.

       The appellants here posit two arguments based on the separation of powers

doctrine not considered in Dougan.2 First, they allege that the PLRA's termination

provisions impose a rule of decision for pending cases in violation of Klein.

Second, the appellants argue that the PLRA violates Article III of the United States

Constitution by depriving the courts of their authority to fashion effective relief in

constitutional cases involving prison inmates. We review questions of

constitutional law de novo. Pleasant-El v. Oil Recovery Co., 148 F.3d 1300, 1301

(11th Cir. 1998).

                                     II.    DISCUSSION

A.     Separation of Powers Under Klein

       We review briefly the now-familiar facts of Klein. Klein, the administrator

of the estate of Confederate sympathizer, V. F. Wilson, filed a petition pursuant to

the Abandoned and Captured Property Act of 1863 to secure the proceeds of cotton

that had been abandoned to federal treasury agents. To obtain reimbursement,

petitioners were required to prove loyalty during the war. Wilson had taken an


       2
         The appellants have also argued here that section 3626(b)(2) of the PLRA violates the Due
Process Clause and Equal Protection dimension of the Fifth Amendment. As appellants noted, however,
we rejected those challenges in Dougan and we decline to revisit them here.

                                                 4
oath in 1864 pursuant to President Lincoln's proclamation granting full pardon to

those who took an oath of allegiance to the United States. Prior Supreme Court

precedent held that those who took such an oath satisfied the loyalty provision of

the 1863 act. In 1870, while Klein's case was pending, however, Congress passed

legislation stating that a presidential pardon was proof of disloyalty and directing

the dismissal for lack of jurisdiction any pending recovery action brought on behalf

of a pardon recipient. The Supreme Court invalidated the statute, holding that

Congress violates the separation of powers doctrine when a statute “prescribes a

rule for the decision of a cause in a particular way.” See Klein, 80 U.S. at 146.

      In striking down the statute, the Klein Court distinguished the case of

Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421 (1855).

In Wheeling Bridge, Congress passed an act that legalized the structure of a bridge

that the Supreme Court decreed in an earlier lawsuit to be a nuisance. When the

Court was asked to enforce its prior nuisance decree, it held that the bridge had

ceased to be a nuisance as defined by the legislation of Congress. As the Court

later explained, “[n]o arbitrary rule of decision was prescribed in [Wheeling], but

the court was left to apply its ordinary rules to the new circumstances created by

the act.” See Klein, 80 U.S. at 146-47. The statute in Klein, on the other hand,




                                          5
created “no new circumstances” and this “inadvertently passed the limit which

separates the legislative from the judicial power.” Id. at 147.

      More recently, in Robertson v. Seattle Audubon Society, 503 U.S. 429, 112

S. Ct. 1407, 118 L.Ed.2d 73 (1992), the Supreme Court declined to decide whether

an act of Congress was unconstitutional under Klein because the act merely

amended underlying law and did not prescribe a rule of decision. See 503 U.S. at

441, 112 S. Ct. at 1414. Recalling its holding in Wheeling Bridge, the Court held

that the challenged legislation “replaced the legal standards” in an environmental

statute “without directing particular applications under either the old or new

standards.” Id. at 437, 112 S. Ct. at 1413. The Court noted that the legislation

“expressly provided for judicial determination of the lawfulness” of activity under

the statute and that the legislation did not instruct the courts whether any particular

activity would violate the legislation. Id. at 438-39, 112 S. Ct. at 1413 (emphasis

in original). See also Henderson v. Scientific-Atlanta, Inc., 971 F.2d 1567, 1573

(11th Cir. 1992) (applying Seattle Audubon and finding the challenged legislation

did “not require courts to make any particular findings of fact or applications of

law to fact. Any effect on pending cases is solely a result of a change in the

underlying law.”).




                                           6
        Finally, in Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 115 S. Ct. 1447,

131 L.Ed.2d 328 (1995), the Court once again attempted to clarify the meaning of

Klein. “Whatever the precise scope of Klein, . . . later decisions have made clear

that its prohibition does not take hold when Congress <amend[s] applicable law.'”

514 U.S. at 218, 115 S. Ct. 1452 (quoting Seattle Audubon, 503 U.S. at 441).

        These cases illustrate that the separation of powers doctrine is not a model of

clarity. The Supreme Court, however, has articulated certain boundaries. The

legislation considered in Wheeling Bridge is permissible, that in Klein is not. We

conclude that the PLRA more closely resembles the legislation involved in

Wheeling Bridge because it amends the applicable law. Here, Congress has

enacted new standards, but has left to the courts the judicial functions of applying

those standards.3 See Seattle Audubon, 503 U.S. at 437, 112 S. Ct. at 1413. If the

court finds that the consent order in question has been narrowly drafted, extends no

further than necessary, and is the least intrusive means necessary to correct the




        3
         The appellants argue that this defense of the PLRA is inapplicable because the PLRA purports to
amend underlying constitutional law and Congress does not have “the power to determine what
constitutes a constitutional violation.” City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157, 2164, 138
L.Ed.2d 624 (1997). The applicable law, however, is not constitutional in nature. The PLRA addresses
the authority of the district court to grant relief greater than that required by federal law, but does not
determine what conduct constitutes a violation of the Eighth Amendment. See Plyler v. Moore, 100 F.3d
365, 372 (4th Cir. 1996), cert. denied, ___ U.S. ___, 117 S. Ct. 2460, 138 L.Ed.2d 217 (1997).

                                                    7
violation, then the order will not terminate.4 Section 3626(b)(2) of the PLRA thus

“provides only the standard to which district courts must adhere, not the result they

must reach,” Plyler v. Moore, 100 F.3d 365, 372 (4th Cir. 1996), cert. denied, ___

U.S. ___, 117 S. Ct. 2460, 138 L.Ed.2d 217 (1997), and does not violate the

separation of powers principles set out in Klein. We note that other circuits

have reached the same conclusion. See Hadix v. Johnson, 133 F.3d 940,

943 (6th Cir.), cert. denied, ___ U.S. ___, 118 S. Ct. 2368, 141 L.Ed.2d 737 (1998)

(the “interpretation and application of law to fact and the ultimate

resolution of prison condition cases remain at all times with the

judiciary”); Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 658 (1st Cir.

1997), cert. denied, ___ U.S. ___, 118 S. Ct. 2366, 141 L.Ed.2d 735 (1998) (the

PLRA “does not tamper with the courts' decisional rules – that is, courts

remain free to interpret and apply the law to the facts as they discern

them. Because the PLRA leaves the courts' adjudicatory processes

intact, it does not transgress the Klein doctrine.”); Gavin v. Branstad, 122

F.3d 1081, 1089 (8th Cir. 1997), cert. denied, ___ U.S. ___, 118 S. Ct. 2374, 141



        4
         The appellants further argue that the statute at question in Klein was also rejected because it
guaranteed that the government would win every case. See United States v. Sioux Nation of Indians, 448
U.S. 371, 404, 100 S. Ct. 2716, 2735, 65 L.Ed.2d 844 (1980). Here, there is no prescribed answer for all
motions to terminate that come before the court. If the district court finds that the consent decree meets
the requirements of the PLRA, the decree may not be terminated. See 18 U.S.C. § 3626(b)(3).

                                                    8
L.Ed.2d 741 (1998) (“Congress has left the judicial functions of interpreting

the law and applying the law to the facts entirely in the hands of the

courts. The PLRA leaves the judging to judges, and therefore it does

not violate the Klein doctrine.”); Plyler, 100 F.3d at 372 (Section

3626(b)(2) “provides only the standard to which district courts must

adhere, not the result they must reach”). We thus join Hadix, Inmates of

Suffolk County Jail, Gavin, and Plyler, in upholding the constitutionality of the

PLRA on this ground.5

B.      Separation of Powers Under Article III

        The appellants next allege that the PLRA strips courts of their power and

duty, enunciated in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), to

enforce effective remedies in constitutional litigation. The PLRA, they argue, does

not simply regulate procedure in federal courts, but rather regulates the judicial

enforcement of the Constitution generally – a power not granted to Congress. The




        5
          In Benjamin v. Jacobson, 124 F.3d 162 (2d Cir. 1997), the Second Circuit upheld the
constitutionality of the PLRA against a separation of powers challenge. We have previously expressed
disagreement with the rationale articulated by the Benjamin court. See Dougan, 129 F.3d at 1426 n.4.
On December 23, 1997, the Second Circuit granted rehearing en banc in Benjamin, and oral argument
was held on February 25, 1998.
         We also note that in Taylor v. United States, 143 F.3d 1178 (9th Cir. 1998) a panel of the Ninth
Circuit held the PLRA unconstitutional as a violation of the separation of powers doctrine. On November
3, 1998, the Ninth Circuit vacated the panel opinion and will hear the case en banc. See Taylor v. United
States, 158 F.3d 1059 (9th Cir. 1998).

                                                   9
purpose of the PLRA, appellants contend, is to place undue burdens upon the

litigation of prison conditions in order to make such litigation impractical.

      The PLRA does not deprive courts of their authority to decide constitutional

challenges to prison conditions. The PLRA requires only that the relief be

“narrowly drawn,” go “no further than necessary to correct the violation of the

Federal right,” and “be the least intrusive means necessary to correct the violation

of the Federal right.” 18 U.S.C. §§ 3626(a)(1)(A), (b)(2), (b)(3). Tailoring

remedies to address the constitutional wrong is not an unusual practice. Congress

has the authority to require a court in equity to make certain findings before issuing

injunctive relief, see Gavin, 122 F.3d at 1087, and has previously legislated

restrictions on the manner in which courts may grant prospective relief. See

Missouri v. Jenkins, 515 U.S. 70, 88, 115 S. Ct. 2038, 2049, 132 L.Ed.2d 63

(1995) (“the nature of the . . . remedy is to be determined by the nature and scope

of the constitutional violation”) (citation and internal quotation marks omitted);

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16, 91 S. Ct. 1267,

1276, 28 L.Ed.2d 554 (1971) (same). Here, Congress has stated that the relief may

not be broader than that which is necessary to protect the federal right.

      Importantly, the court may not terminate an existing decree if it finds that the

decree satisfies the conditions set forth in section 3626(b)(3) at the time of the


                                          10
motion to terminate. See Dougan, 129 F.3d at 1425. The district court, therefore,

still has the ability to remedy constitutional violations. See Tyler v. Murphy, 135

F.3d 594, 597 (8th Cir. 1997) (“Section 3626(b)(3) expressly permits the district

court to continue appropriately tailored prospective relief that the court finds

necessary to remedy a current violation of federal rights. Thus, the statute

preserves a court's ability to remedy constitutional violations.”); Thompson v.

Gomez, 993 F. Supp. 749, 763 (N.D. Cal. 1997) (“PLRA does not substantively

limit the power of courts to remedy constitutional violations.”). Accordingly, we

hold that the PLRA does not deprive courts of their authority to enforce effective

remedies in constitutional litigation.

                               III.      CONCLUSION

      In sum, we hold that the PLRA does not abrogate the separation of powers

doctrine because Congress has not prescribed a rule of decision. We further hold that

the PLRA does not strip courts of their power to decide constitutional challenges to

prison conditions. We, therefore, AFFIRM the decision of the district court upholding

the constitutionality of section 3626(b) of the PLRA.




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