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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-20982

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In Re: WAYNE SCOTT, Executive Director of the Texas Department of

Criminal Justice, and the members of the Texas Board of Criminal

Justice; 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

Petitioners

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Petition for Writ of Mandamus to the

United States District Court for the

Southern District of Texas, Houston

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December 16, 1998

Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:

The Director of the Texas Department of Criminal Justice and

members of the Texas Board of Criminal Justice (the “defendants”)

petition this Court for a writ of mandamus compelling the

district court (1) to rule immediately on a pending motion to

terminate ongoing prospective relief and (2) to terminate extraconstitutional aspects of a final judgment approved by the court

in December 1992. We decline to compel the district court to act

instanter but order it to act within 31 days of the evidentiary

hearing set for January 21, 1999.

We have had occasion to consider mandamus relief in this
1See Ruiz v. Scott, NO. 96-21118, 124 F.3d 191 (5th Cir. 1997)

(table case). 

2That Rule provides:

On motion and upon such terms as are just, the court may

relieve a party or a party’s legal representative from a

final judgment, order, or proceeding [because] the

judgement has been satisfied, released, or discharged, or

a prior judgment upon which it is based has been reversed

or otherwise vacated, or it is no longer equitable that

the judgment should have prospective application.

Fed. R. Civ. P. 60(b)(5).

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case before, and our August 1997 order sets out much of the

pertinent procedural history.1 In December 1980, the district

court found conditions of confinement in the Texas prison system

to violate the United States Constitution. Thereafter the parties

entered into a consent decree and the district court issued a

declaratory judgment and injunction governing issues not covered

by the consent decree. The court appointed a special master to

monitor implementation of the relief. Following various appeals

and motions, the district court in December 1992 approved a final

judgment vacating earlier orders and issued an opinion providing

for “continuing permanent injunctive orders on eight substantive

issues.” On March 25, 1996, the defendants filed a motion to

vacate the final judgment pursuant to Federal Rule of Civil

Procedure 60(b)(5).2 On April 26, 1996, President Clinton signed

into law the Prison Litigation Reform Act (PLRA), now codified at

18 U.S.C. § 3626.

The PLRA provides for automatic termination of prospective

relief in prison-condition cases:
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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 Prison Litigation

Reform Act, 2 years after such date of enactment.

18 U.S.C. § 3626(b)(1)(A). The PLRA offers even more immediate

relief in certain cases:

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.

18 U.S.C. § 3626(b)(2). The termination clauses have these

limits:
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Prospective relief shall not terminate if the

court makes written findings based on the record that

prospective relief remains necessary to correct a

current and ongoing violation of the Federal right,

extends no further than necessary to correct the

violation of the Federal right, and that the

prospective relief is narrowly drawn and the least

intrusive means to correct the violation.

18 U.S.C. § 3626(b)(3).

On May 31, 1996, the district court ordered the parties to

engage in discovery before the court would schedule a hearing on

the defendants’ March 25 motion. On September 6, 1996, the

defendants filed a Supplemental Motion To Vacate Final Judgment.

The motion moved to vacate the final judgment pursuant, in the

alternative to Rule 60(b), to 18 U.S.C. § 3626(b)(2), as amended

by the PLRA. On September 25, 1996, the district court entered an

order delaying action on the defendants’ motions:

It is impossible for the Court to resolve

defendants’ motions within the 30-day period specified

in 18 U.S.C. sec. 3626(e)(2)(A)(I), or the 180-day

period in subsection (A)(ii). The Court believes that

the status quo should be preserved pending the

resolution of defendants’ motions, and finds that the

PLRA ‘automatic stay’ provisions violate the Separation

of Powers and due process of law . . . .
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Accordingly, the Court will proceed to give due

consideration to both of defendants’ motions when the

parties are ready for a hearing on them. In the

meantime, the Final Judgment remains in full force and

effect.

The defendants appealed to this Court from the district court’s

September 25 order. On February 3, 1997, the defendants filed a

petition for writ of mandamus, which was consolidated with the

appeal. We found that the district court’s September 25 order was

not appealable. We also declined to issue the writ of mandamus,

which the defendants sought in order to compel the district court

under 18 U.S.C. § 3626(b)(2) to grant the defendants’ September

6, 1996 motion. We found that the district court had a right to

an updated record with regard to the “eight substantive issues”

that led the court to issue “continuing permanent injunctive

orders” in December 1992. We stressed, however, “that ruling on

defendants’ September 6, 1996, motion should not entail a general

overall examination of the prison system.” Finding that updating

the record “should not be overly burdensome or time consuming,”

we stated that our denial of the mandamus was “without prejudice

to whatever rights defendants may have to seek such relief should

the district court fail to rule promptly” on the September 6,

1996 motion to vacate. On October 31, 1997, the district court

issued a new discovery order. On May 6, 1998, two years after the
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enactment of the PLRA, the defendants filed a motion to terminate

pursuant to 18 U.S.C. § 3626(b)(1). On June 19, 1998, the

district court again held the PLRA’s automatic-stay provision

unconstitutional and declined to limit discovery under its

October 31, 1997 order.

Sixteen months have passed since our ruling, and the

district court has yet to rule on the defendants’ motion of

September 6, 1996. Defendants now bring the instant petition for

a writ of mandamus to end the delay in this case.

We are mindful of the dictates of § 3626. The PLRA provides

that the district court “shall promptly rule on” a motion to

modify or terminate prospective relief. 18 U.S.C. § 3626(e)(1).

Furthermore, “[m]andamus shall lie to remedy any failure to issue

a prompt ruling” on a motion to terminate prospective relief. Id.

We are dismayed by the amount of delay the district court has

allowed for discovery related to the defendants’ motion to

vacate. We would be inclined to grant the writ of mandamus and

order the district court to rule instanter, were we not aware

that the district court has scheduled its evidentiary hearing in

this matter just one month from now, on January 21, 1999. In

recognition of the impending hearing, and in keeping with our

earlier determination that the district court should have an

updated record before ruling on the defendants’ motion for

termination, we will not order the district court to rule
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instanter. Instead, we order the court to rule on the defendants’

September 3, 1996 motion within a reasonable time after the

scheduled evidentiary hearing begins. In no event, however, shall

the district court fail to make its ruling by March 1, 1999. We

realize that this may place a great burden on the district court

in light of the potentially large record that may result from the

January 21, 1999 hearing. But the PLRA’s requirement is clear,

and given the limitation on the record that we outlined in our

October 1997 opinion, we are confident that the district court

will be able to comply with this order.