IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-21118

DAVID R. RUIZ; ET AL.,

Plaintiffs-Appellees,

UNITED STATES OF AMERICA,

Intervenor-Plaintiff-Appellee,

versus

WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT

OF CRIMINAL JUSTICE, INSTITUTIONAL

DIVISION; ALLEN B. POLUNSKY; ELLEN J. HALBERT;

CAROLE S. YOUNG; JOSHUA W. ALLEN; R.H. DUNCAN;

JOHN R. WARD; JOHN DAVID FRANZ; NANCY PATTON;

CAROL S. VANCE,

Defendants-Appellants.

* * * * * * * * * ** * * * * * * * * * * *

consolidated with

No. 97-20068

IN RE: WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT

OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION;

ALLEN B. POLUNSKY; ELLEN J. HALBERT; CAROLE S.

YOUNG; JOSHUA W. ALLEN; R.H. DUNCAN; JOHN R. WARD;

JOHN DAVID FRANZ; NANCY PATTON; CAROL S. VANCE,

Petitioners.

Appeal from the United States District Court for the

Southern District of Texas* Pursuant to 5 TH C IR

. R. 47.5 the Court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in 5 TH C IR

. R. 47.5.4.

2 (H-78-CV-787)

August 6, 1997

____________________

On Petition for Writ of Mandamus to the United States District

Court for the Southern District of Texas

(H-78-CV-787)

_____________________

Before GARWOOD, BENAVIDES and STEWART, Circuit Judges. *

PER CURIAM:

We are now presented with yet another episode in the longp ending Texas prison class action litigation, which began so m e

twenty-five years ago.

Procedural History

Following a trial that began in October 1978 and ended in

Se ptember 1979, the district court in December 1980 issued a

lengthy memorandum opinion finding conditions of confinement in the

Texas prison system to be in violation of the United States

Constitution. Subsequently, in May 1981 the district court issued

a declaratory judgment and injunction on issues not disposed of by

a consent decree that had been entered in the interim, and

appointed a special master to monitor implementation of relief. We

generally affirmed the findi ngs of constitutional violations but3

narrowed the scope of the relief ordered. S ee Ruiz v. Estelle

, 503

F.Supp. 1265 (S.D. Tex. 1980), rev’d in part, Ruiz v. Estelle

, 679

F.2d 1115 (5th Cir. 1982), modified in part

, 688 F.2d 266 (5th Cir.

1982), cert. denied

, 103 S.Ct. 1438 (1983). In July 1985, the

district court approved a modification of the decree reflected in

a “Crowding Stipulation” entered into bet ween the parties, which

was “a comprehensive management scheme that seeks to reduce the

crowded conditions of all Texas penitentiaries.” R uiz v. Lynaugh

,

811 F.2d 856, 857 (5th Cir. 1987). In September 1986, the

d efendants moved the district court to modify the Crowdin g

Stipulation to allow some increase of the prison system allowable

capacity without new construction; in Octob er 1986, the district

court denied this req uest and precluded consideration of certain

beds in calculating capacity; the defendants appealed, and in

February 1987 we affirmed. Ruiz v. Lynaugh, supra.

In March 1990, the district court ordered the parties to begin

negotiations to bring about a comprehensive final order in the

case, including timetables for termination of the court’s

jurisdiction. In January 1991, defendants moved to terminate all

existing orders, and in March 1992 defendants filed a comprehensive

memorandum supporting their motion, plaintiffs filed an opposition

thereto, and the parties engaged in discovery. In July 1992, the

United States, which had intervened as a plaintiff in 1974, filed

a memorandum in support of defendants’ motion, urging the court “to4

dissolve all injunctive orders in this case and terminate

jurisdiction,” asserting that in the past decade the re had been

“dramatic improvements of conditions throughout” the prison system,

that “there can be no serious claim that Texas is not currently in

compliance with the Constitution,” and that defendants “have

substantially complied with the court’s orders in this case.” Also

in July 1992, the class plaintiffs and the defendants agreed on a

proposed final judgment, which they jointly submitted to the court

in August 1992. In this proposed judgment, the defendants withdrew

their earlier motion to terminate the court’s jurisdiction.

Pursuant to order of the court, the class members were given

notice. On October 26, 1992, the United States notified the court

that it did not object to the proposed final judgment. Later that

month, an evidentiary hearing was hel d on the proposed final

judgment.

On December 11, 1992, the district court entered a lengthy

memo randum opinion, making extensive findings and approving the

proposed final judgment. A separate order approving the judgment

was entered the same day.

As subsequently characterized by the district court (in its

May 31, 1996, order), the December 11, 1992, final judgment

“vacated and replaced numerous detailed orders and complian c e

plans. It resulted in complete relief from judgment and

termination of the court’s jurisdiction in nine substantive areas

and continuing permanent injuncti ve orders on eight substantive1 In a footnote to the memorandum the court indicates that its

references to evidence “indicate

. . . that the court finds the

evidence credible and is using it as a source for the substantive

findings.”

5 issues.” Neither the December 11, 1992, memorandum opinion nor the

final judgment of the same date make any express finding of present

or ongoing constitutional violat ions, and the injunctive relief

grant ed thereby imposes at least certain requirements or

restricti ons that are not constitutionally mandated (e.g., the

December 11, 1992, memorandum recognizes that the provision of the

final judgment of the same date requiring defendants “to maintain

a contact visiting program in perpetuity” is not constitutionally

required, citing Block v. Rutherford

, 104 S.Ct. 3227 (1984). While

neithe r the December 1992 memorandum nor the final judgment

expressly finds that there were no extant or ongoing constitutional

violations, the memorandum quotes and apparently credits 1 testimony

of state officials suggestive of constitutional compliance, and it

also states that:

“TDCJ-ID has remade itself into a professionally operated

agency whose goals are to achieve the highest standards

of correctional excellence.

Equally important, the measures taken by TDCJ-ID

officials to meet their constitutional obligations have

been memorialized and institutionalized in numerous

internal r ules and regulations that have replaced this

court’ s orders as the agency’s ‘road map’ to success.

The court is satisfied that the defendants not only will

maintain and implement these rules and regulations, but

also will continue to strive to improve on them and their

implementation despite the absence in many areas of

detailed court orders.2 However, the record before us does not include that of any

hearing or hearings leading to the December 11, 1992, memo randum

and final judgment.

6

The parties have caused remarkable and palpable

changes to occur within TDCJ-ID, and for that the court

is grateful.”

The memorandum likewise o bserves that the record before the

court permitted it “to be fully informed on all relevant matters as

it evaluates the proposed final judgment.” 2 Finally, as the

memorandum notes, the final judgment provides for class counsel and

the Special Master to be relieved of their duties June 1, 1993, and

“[u]ntil that date, the Special Master will continue to assist the

parties in resolving compliance issues.”

On March 25, 1996, defendants filed a motion to vacate the

December 11, 1992, final judgment “pursuant to Fed. R. Civ. P.

60(b)(5).” The motion alleges in relevant part:

“The Defendants currently operate a constitutional prison

system and the State has taken substantial steps to

ensure its continuing commitment to such an operation,

moving beyond the bare requirements with strong

legislation to provide for future compliance wi th the

Constitution in the various aspects of prison management.

The state acknowledges that no practical effect

would be felt by the vacating of the Final Judgment:

Texas prisons would operate without the Final Judgment as

they operate today. This motion is not predicated upon

the state’s present desire or intent to alter any aspect

of prison administration. Indeed, we can fathom no

prison policy or practice which the state would desire to

employ which is in any way imp eded by the Final

Judgment.”

. . . .

Defendants’ compliance with the Final Judgment, the3 Section 802(b) of Pub. L. 104-134 provides:

“(b) A PPLICATION OF A MENDMENT

. —— (1) I N G ENERAL

. —— Section 3626 of title 18, United

States Code, as amended by this section, shall apply with

respect to all prospective relief whether such relief was

originally granted or approved before, on, or after the

date of the enactment of this title.

( 2) T E CHNICAL A MENDMENT

. —— Subsections (b) and (d) of

section 20409 of the Violent Crime Control and Law

Enforcement Act of 1994 are repealed.”

4 On May 21, 1996, Texas State Representative Culberson and

Texas State Senator Brown (who have moved to intervene in the

present proceedings in this Court)filed a motion to interven e as

defendants in the district court and a proposed motion to vacate

the December 1992 final judgment pursuant to the PLRA. On June 20,

1996, plaintiffs and defendants filed separate oppositions to the

Culberson and Brown motion to intervene. On July 5, 1996,

Culberson and Brown filed a reply brief in support of their motion

to interve ne. So far as the record discloses, the motion to

intervene has not been ruled on by the district court.

7 public’s interest and the State of Texas’ desire to

exercise autonomy over its institutions, mandate that any

remaining vestiges of court involvement

—— however

passive

—— with the prison system, now be vacated. In the

face of the commitment of the defendants, the State and

its agencies, and the leg islature to continuing a

constitutional prison system, the defendants submit that

the time to vacate the final judgment is now at hand.”

On April 26, 1996, the Prison Litigation Reform Act (PLRA) was

signed into law by President Clinton, and its relevant provisions

are now codified as 18 U.S.C. § 3626. Pub. L. 104-134, Title VIII,

Sec. 802(a), 110 Stat. 1321-66. 3 Some of the relevant provisions

of this legislation are noted below.

On May 31, 1996, the district cour t entered an order

respecting the defendants’ March 25 motion. 4 This order states

that the December 1992 final judgment “resulted in complete relief8

from judgment and termination of the court’s jurisdiction in nine

substantive areas and continuing permanent injunctiv e orders on

eight substantive issues,” and ( somewhat mysteriously) that the

d efendants’ motion “puts in issue not only the eight substant ive

areas as to which the Final Judgment entered permanent injunctions

but also the constitutionality of the entire operation of the Texas

prison system.” The order goes on to appoint as attorney for the

plaintiff class the same attorney who had been representing the

class in connection with defendants’ January 19 91 motion and

thereafter and until June 1993, and it orders that plaintiffs’

counsel and defendants’ counsel

“shall meet and confer within forty-five days from the

entry of this order and attempt to (1) narrow the issues

in dispute, (2) establish a joint discovery pla n, (3)

d iscuss what role, if any, the Special Master i n this

cause could play in the efficient development of a

factual record, and (4) propose to the court an agreedupon schedule for a hea ring on defendants’ motion.

Within sixty days of the entry of this order the parties

shall report to the court o n the results of this

meeting.”

On June 20, 1996, plaintiffs filed their opposition to

defendants’ March 25, 1996, motion to vacate. This opposition

primarily asserts that the allegations in defendants’ motion to not

entitle them to any relief

—— i.e., even if the prison system is and

has been since the December 1992 final judgment operated in all

respects constitutio nally and in accordance with that judgment,

defendants are not entitled to have the judgment vacated or

modified, largely because such compliance was contemplated by the9

agreed judgment. The opposition then goes on to assert “Plaintiffs

deny defendants’ factual assertions that current conditions meet

constitutional requirements in all respects and will put defendants

to their proof on their allegations.” However, the opposition

fails to allege any specific asserted violation or even general

type or character of violation, either current or existing at any

time on or after (or within a year before) December 1992; nor does

it allege in any fashion that any sort of constitutional

violations, current or extant at or after (or within a year before)

December 1992, are (or were) widespread or systemic; nor does it

allege any current or past violation of the December 1992 final

judgment.

On August 8, 1996, defendants filed a report as called for by

the court’s May 31 order. The report advised that plaintiffs’

counsel and the Department of Justice had toured one prison unit,

that tours of additional units, including tours by medical experts,

were to be made in the near fut ure, that defendants had produced

documents to plaintiffs’ counsel, who had not yet completed review

of th em, that the parties would notify the court as soon as an

agreement was reached on what issues were in dispute and on a

discovery plan, and that “[o]nce the parties determine what

additional discovery is necessary, they will report to the district

court on an agreed hearing date.”

The next relevant filing contained in the record before us

occurred on September 6, 1996, when defendants file d their5 Section 3626(b) provides:

“ (b) Termination of relief

——

(1) Termination of prospective relief.

—— (A) 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 Litig ation Reform

Act, 2 years after such date of enactment.

(B) Nothing in this section sha ll prevent the

parties from agreeing to terminate or modify r e lief

before the relief is terminated under subparagraph (A).

(2) Immediate termination of prospective relief.

—— In

any civil action with respect to prison conditi ons, a

defendant or intervener shall be entitled to the

immediate termination of any prospective rel ief if the

relief was approved o r 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

10 S upplemental Motion To Vacate Final Judgment. This motion

commences as follows:

“Defendants, by and through Attorney General Dan

Morales, file their supplemental motion to vaca te the

final judgment. Defendants have previously moved this

court to vacate the final judgmen t in this matter

p ursuant to Fed. R. Civ. P. 60(b)(5). Defendants now

move, in the alternative , to vacate the final judgment

p ursuant to 18 U.S.C. § 3626(b)(2), as amended by the

Prison Litigation Reform Act, Title VIII of P.L. 104-134,

signed into law by President Clinton on April 26, 1996.”

The motion asserts that because the D ecember 1992 final judgment

does not contain the findings specified in section 3626(b)(2), it

should be immediately terminated. 5Federal right.

(3) Limitation.

—— Prospective relief shall not

terminate if the court ma kes written findings based on

the record that prospective relief remains necessary to

correct a current or ongoing violation of th e 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.

(4) Termination or modification of relief.

—— Nothing

in this section shall prevent any party or inte rvener

from seeking modification or termination before the

relief is terminable under paragraph (1) or (2), to the

extent that modification or termination would otherwise

be legally permissible.”

Section 3626(g)(1), (6), (7) and (9) provide, respectively:

“(1) the term‘consent decree’ means any relief

entered by the court that is based in whole or in part

upon the consent or acquiescence of the parties but does

not include private settlements;

(2) . . .;

(3) . . .;

(4) . . .;

(5) . . .;

(6) the term ‘private settlement agreement’ means an

agreement entered into among the parties tha t is not

subject to judicial enforcement other than the

reinstatement of the civil proceeding that the agreement

settled;

(7) the term ‘prospective relief’ means all relief

other than compensatory monetary damages;

(8) . . .;

(9) the term ‘relief’ means all relief in any form

that may be granted or approved by the court, and

includes consent decrees but does not include p rivate

settlement agreements.”

11 On September 23, 1996, plaintiffs filed their opp osition to6 Section 3626(e) provides,

“ (e) Procedure for motions affecting prospective

relief.

——

(1) Generally.

—— The court shall promptly rule on any

motion to modify or terminate prospective re lief in a

civil action with respect to prison conditions.

(2) Automatic stay.

—— Any prospective relief subject

to a pending motion shall be automatically stayed 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); or

(ii) beginning on the 180th day after such motion is

filed, in the case of a motion made under any other law;

and

(B) ending on the date the court enters a final

order ruling on the motion.”

12 defendants’ September 6, 1996, motion. This pleading asserts that

“the PLRA should not be applied retroactively to inv alidate the

F inal Judgment, entered before the PLRA became law,” that “in

substance an d effect” the December 1992 memorandum and judgment

made the findings required by the PLRA, that an evidentiary showing

and factual findings were required to resolve both de fendants’

March 25, 1996, motion and their September 6, 1996, motion, that

defendants waived or were estopped to invoke the “automatic stay”

provisions of the PLRA, 3626(e)(2), 6 that such stay provisions are

inapplicable or, if applicable, are unconstitutional, and that the

PLRA is unconstitut ional if it invalidates or terminates the

Decembe r 1992 final judgment. Plaintiffs’ opposition does not

assert, either generally or in any particular, that the prison

conditions or operations are now, or have ever been since December7 On September 25, 19 96, the United States filed its response

to defendants’ September 6, 1996, supplemental motion to vacate (so

far are we can ascertain the United States never responded to

defendants’ March 25, 1996, motion under Rule 60(b)). This

response commenced by stating:

“The United States was not a party to the Final

Judgment entered by this Court in 1992. Consequently,

the United States takes no position on whether this Court

should vacate the Final Judgment. The United States does

have some continued concern over issues of medical and

mental health care in the Texas prison system, based on

13 1992 (or since December 1991), unconstitutional or in violation of

the December 1992 final judgment.

Also on Sep tember 23, 1996, the district court signed an

order, entered September 25, 1996, providing as follows:

“The Court has reviewed defendants’ Supplemental

Motion to Vacate Final Judgment, filed September 6, 1996,

under the Prison Li tigation Reform Act (‘PLRA’), and

plaintiffs’ response thereto. The Court also takes note

of defendants’ Motion to Vacate Final Judgment filed

March 25, 1996, pursuant to Fed. R. Civ. P. 60(b), and

the parties’ Report to the Court filed August 8, 1996,

contemplating the development of a factual record and an

evidentiary hearing.

It is impossible for the Court to r esolve

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

q uo should be preserved pending the resoluti on of

defendants’ motions, and finds that the PLRA ‘automatic

stay’ provisions violate the Separation of Powers and due

process of law, substantially for the reasons discussed

in Hadix v. Johnson

, No. 80-CV-73581, 1996 U.S. Dist.

LEWIS 9864 (E.D. Mich. July 5, 1996), and Gavin v. Ray

, No. 4-78-CV-70062 (S.D. Iowa, Sept. 18, 1996).

Accordingly, the Cou rt will proceed to give due

consideration to both of defendants’ motions wh en the

parties are ready for a hearing on them. In the

meantime, the Final Judgment remains in full force and

effect.” 7numerous complaints we have r eceived in the last few

years. The United States has not yet had an opportunity

to substant iate these complaints and is in discussions

with the State of Texas to gain access to the facilities

accordingly. Nevertheless, given the longstanding nature

of this litigation, the United States intends to pursue

those concerns separately pursuant to its authority under

the Civil Rights for Institutionalized Persons Act

(‘CRIPA’), 42 U.S.C. § 1997 et seq ., and, if necessary,

issue a new notice of investigation specifically tailored

to investigate those medical and mental health issues.”

The pleading goes on to assert that section 3626(e)(2) is

constitutional, provided it is construed, as it accordingly should

be, not to be “self-executing” or to operate to “preclude a court’s

deliberative process.”

8 On November 25, 199 6, the United States also filed a notice

of appeal from the district court’s order dated September 23, 1996.

On December 23, 1996, the United States moved to dismiss its said

appeal; this motion was unopposed, and this Court dismissed the

appeal of the United States on December 23, 1996. In its brief in

this Court, the United States labels itself as only an appellee

(and a respondent to defendants’ petition for mandamus), and in its

brief requests as relief only that the district court’s September

23, 1996, “judgment

. . . refusing to give effect to the automatic

stay provision pending decision on the State’s motion for immediate

termination be affirmed” and that the defendants’ petition for writ

of mandamus be denied.

14 On October 24, 1996, defendants filed a notice of appeal from

the district court’s September 23, 1996, order. That appeal was

docket e d as our No. 96-21118. 8 On the same day, defendants filed

in the district court a motion to stay the district court’s

September 23 order pending the appeal of that order. This motion

asserts that by the September 23 order

“the Court denied the relief mandated by the PLRA, i.e.

the immediate termination of judgment in the absence of

language in that judgment indicating that ‘the relief is

narrowly drawn, extends no further than necessary to

correct the viola tion of the Federal right, and is the

least intrusive means necessary to correct the violation15

of the Federal right.’ 18 U.S.C. § 3626(b)(2).”

The motion also argues that defendants are likely to prevail on

appeal on their claim that the district court’s failure to

immediately terminate the December 1992 judgment is contrary to

section 3626(b)(2). Further, the motion contends that the failure

to grant a stay will deprive defendants of an intended benefit of

the PLRA, namely “immediate termination of the judgment without the

delay and expense associated with discovery and a hearing.” This

is the only harm which it is alleged that defendants will suffer if

a stay is denied. The motion continues by asserting: “The Act

provides for immediate termination of the judgment. Based upon the

record currently before the Court, Defendants are entitled to have

the Final Judgment vacated.”

O n November 14, 1996, the district court signed an order

denying defendants’ motion for stay pending appeal. The court

observed that defendants had not shown likely error in the court’s

conclusion that section 3626(e)(2) was unconstitutional, and

rejected defendants’ claim that they would be unduly “injured by

the delay and expense of discovery and a hearing on their motion to

vacate final judgment,” specifically noting that in their March 25

motion defendants asserted “‘no practical effect would be felt by

vacating the Final Judgment’” and that they “‘can fathom no prison

policy or practice which the state would desire to employ which is

in an y way impeded by the Final Judgment.’” No notice of appeal

has been filed from this November 14 order.16

D efendants thereafter filed in this Court a motion to stay

discovery (in the district court) pending resolution of their

appeal (our cause No. 96-21118) of the district court’s September

23, 1996, order. On December 31, 1996, a motions panel of this

Court denied the motion for stay, noting that it was doubtful the

September 23 order was appealable. The order of this Court was

“without prejudice to such rights, if any, as said appellants may

have to seek mandamus relief.” On approximately January 24, 1997,

defendants filed their petition for writ of mandamus herein, which

was assigned our cause No. 97-200 68. On February 3, 1997, a

motions panel of this Court ordered that the mandamus (No. 97-

20068) be consolidated with the appeal (No. 96-21118). The

consolidated cases were orally argued before the instant panel on

June 3, 1997.

In the meantime, on Feb ruary 24, 1997, Texas State

Representative John Culb erson and Texas Senator J.E. Brown (see

note 4, supra ) filed in this Court, in our c ause No. 96-21118,

their motio n for leave to intervene as “defendants” in the

proceedings before this Court, and their motion “for leave to file

motion to terminate federal jurisdiction over the Texas prison

system.” Plaintiffs, the United States, and the defendants have

each filed their oppositions to these motions.

Discussion

We conclude that the September 23, 1996, order of the district9 By letter dated July 8, 1997, over a m onth after this case

was orally argued and taken under submission by this panel,

defendants advised this Court that on July 3, 1997, they had filed

(or mailed for filing) in the district court a notice that they

were thereby “withdrawing without prejudice” their March 25, 1996,

mot i on under Rule 60(b). But that July 1997 action is not

effective to change the character of the district court’s 1996

orders.

17 court is not an appealable order, under either 28 U.S.C. § 1291 or

28 U.S.C. § 1292(a)(1). Plainly, the order of September 23, 1996,

does not dispose of the entire case, and hence does not meet the

normal requirements of section 1291.

Nor is that order one “refusing to dissolve or modify

injunction s ” within section 1292(a)(1). The district court’s

September 23 order does not deny either of defendants’ motions to

terminate, but rather expressly states “the Court will proceed to

give due consideration to both of defe ndants’ motions [the Rule

60(b) motion filed March 25, 1996, and the “supplemental motion”

filed September 6, 1996] when the parties are ready for a hearing

on them.” We note that the September 6 motion was expressly made

“in the alternative” to the March 25 motion, which was never

withdrawn and was still pending before the court. 9 In its May 31,

1996, order respecting the March 25, 1996, motion, the court had

expressly directed the parties to propose an agreed schedule for a

hearing. On August 8, 1996, defendants had reported to the court

that “they will report to the district court on an agreed hearing

date.” Defendants have never requested a hearing date. They have

not sought a ruling, as such, on either of their motions, they have18

simply asked that the court grant their September 6 motion to

terminate. Moreover, defendants do not claim that they face any

emergency; none of the representations in their March 25, 1996

motion that there was nothing they wanted to do, or even

contemplated doing, which would or might be preve nted by the

December 1992 final judgment have been in any way, expressly or

i mpliedly, retracted. In these circumstances, the fact that the

district court’s Septem ber 23, 1996, order did not immediately

grant defendants’ September 6, 1996, motion, but rather merely

deferred ruling on it, does not constitute that order as one

“refusing to dissolve or modify” the December 1992 final judgment

(which we treat as an injunction for these purposes). S ee Overton

v. City of Austin

, 748 F.2d 941, 949-952 (5th Cir. 1984). Of

course, should the district court deny, in whole or in part,

defendants’ motion to terminate, the defendants may then appeal

under section 1292(a)(1).

Defendants assert jurisdiction under the collateral order

doctrine allowing immediate section 1291 appeal of orders denying

defenses based on quali fied (or absolute) immunity or Eleventh

Amendment immunity, and cite our decision in Helto n v. Clements

,

787 F.2d 1016 (5th Cir. 1986). However, this is not an immunity

case of a ny kind. The Supreme Court has refused to broadly read

the collateral order exception to the final judgment rule; and to

come within that exception it is not sufficient that appellants’19

position, if sustained, would obviate the necessity for trial or

discovery. S ee, e.g., Swint v. Chambers County Commiss ion , 115

S.Ct. 1203, 1208 (1995); Digital Equipment Corp. v. Desktop Direct,

Inc

., 114 S.Ct. 1992, 1998- 2000 (1994). And, defendants’ claim

here

—— namely, that section 3626(b)(2) entitles them to termination

of the December 1992 final judgment

—— is not really “conceptually

distinct” from the underlying mer its, but rather essentially

constitutes the merits. C f. Helton at 1017 (“the claim of immunity

. . . is conceptually distinct from the merits of the plaintiff’s

claim that her rights have been violated,’” q uoting M itchell v.

Forsyth

, 105 S.Ct. 2806, 2816 (1985)). We also note that

defendants have not filed a motion for summary judgment and have

not asked for a setting of either of their motions or for the court

to rule thereon one way or the other, but have simply asked for the

court to grant their supplemental motion. All the court has done

is to defer ruling on defendants’ two motions, and the only thing

before it is their two motions (now, apparently, their one motion;

see note 9, supra ). We reject defendants’ attempt to invoke the

collateral order doctrine on the basis of an analogy to the

immunity cases.

The United States takes the position that the district court’s

September 23, 1996, order is appealable under the collateral order

doctrine because it is a final ruling, separate from the merits,

that the stay provisions of section 3626(e)(2) (see note 6, supra )20

are unconstitutional. We reject this position, without ruling on

its facial merits, but be cause it misconceives the nature of

defendants’ appeal. The district court’s September 23, 1996, order

did two things: (1) it declared section 3626(e)(2)

unconstitutional; (2) it declined to immediately rule, one way or

the other, on either of defendants’ motions (the March 26, 1996,

Rule 60(b) motion and the September 6, 1996, supplemental m otion

based on section 3626(b)(2)), stating “the Court will proceed to

give due consideration to both of defendants’ motions when the

parties are ready for a hearing o n them.” It is this latter

portion of the district court’s order which the defendants attack

on appeal. Defendants never requested the district court to stay

its December 1992 final judgment pending a ruling on either of

thei r two motions to vacate the December 1992 final judgment.

Although after they gave their notice of appeal herein from the

September 23, 1996, order, the defendants did request the district

court to stay that 1996 order, they did not even then request a

stay of the December 1992 final judgment, and they have not

appealed the district court’s denial of that stay; moreover, their

complaint was that they would have to undergo burdensome discovery

and an evidentiary trial, a matter which would not be obviated had

the district court stayed its December 1992 judgment pending

resolution of defendants’ motions to vacate. Similarly, in this

Court defendants sought a stay of discovery pending their appeal of10 We note that section 3626(e)(2)(B) plainly contemplates that

a motion to vacate or terminate may be acted on

—— i.e. granted or

denied

—— after the stay called for by section 3626(e)(2)(A) has

commenced, and that the stay terminates when the court rules one

way or the other on the motion to vacate or terminate.

11 Likewise, in their petition for writ of mandamus, defendants

state: “The constitutionality of the automatic stay is not

relevant to the situation presented by this case.”

21 the September 23, 1996, order. Finally, defendants’ briefing and

argument in this Court as sert that they were entitled, under

section 3626(b)(2), to have thei r supplemental motion to vacate

granted with resultant immediate termination of the December 1992

judgment, not that they were entitled to a stay of the December

1992 judgment until the district court ruled on their motion or

motions to vacate. 10 And, defendants’ brief in this Court concludes

by stating:

“The con s titutionality of the automatic stay is not

relevant to the situation presented by this case. The

record clearly evidences no ongoing current

constitutional violation and, therefore, the district

court had no need to go further. The court was obliged

to terminate the Final Judgment.

CONCLUSION

Defendants pray that this Court reverse the Order of

the distri ct court and render judgment terminating the

Final Judgment in this litigation.” 11

The defendants’ appeal of the district court’s September 23,

1996, order seeks to review not the failure to s tay the December

199 2 final judgment pending ruling on the defendants’ motion or

motions to vacate that 1992 judgment, but r ather the court’s12 See note 11, supra

.

13 The petition for mandamus describes the relief sought thereby

and the issue presented as follows:

“ A. T HE R ELIEF S OUGHT

Petitioners request this Court to enter an order

requiring the district court to:

1. vacate its Order of September 25, 1996 and

immediately terminate the prospective relief of the Final

22 failure to immediately grant defendants’ September 6, 1992, motion

by permanently terminating the December 1 992 judgment. However,

the district court has not denied defendants’ motion to vacate or

indicated that it will not rule upon same when the parties are

ready for a hearing. Under the present circumstances, that aspect

of the September 23, 1996, order ch allenged on appeal is not an

appealable order.

The appeal in No. 96-21118 is dismissed for want of an

appealable order.

We turn now to the mandamus. As with the appeal, the mandamus

does not seek to require the district court to stay (or recognize

that section 3626(e)(2) stays) the December 1992 judgment pending

its ruling on the motion or motions to vacate, but rather seeks to

require the district court to grant the September 6 motion to

vacate and permanently terminate the prospective relief ordered by

the December 1992 judgment under section 3626(b)(2). 12 The mandamus

also requests that we stay all discovery and hearings in the

district court pending our resolution of defendants’ appeal. 13Judgment in light of the fact that it is not accompanied

by the requisite finding of § 3 626(b)(2); or,

alternatively, to

2. vacate the district court’s Order of November

20, 1996 and stay all discovery and hearings pending

resolution of the Petitioners’ appeal.

B. I SSUES P RESENTED

Whether the district court has any discreti on to

refuse the mandatory duty under the PLRA, to immediately

terminate a continuing decree in a prison reform lawsuit,

and instead implement discovery and hold an evidentiary

hearing.”

23 We decline to issue a writ of mandamus at this time.

Defendants’ claims for mandamus relief are entirely grounded

on the proposition that by virtue of the provisions of section

3626(b)(2) they are “entitled to the immediate termination of any

prospective relief” provided by the December 1992 judgment because

that “relief was approved or granted in the absence of a finding by

the court,” in either the December 1992 judgment itself or the

December 1992 memorandum approving it, “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.” Id . As to at least

some of the prospective relief ordered by the December 1992

judgment, it appears clear that the standards of section 3626(b)(2)

are not met so that if section 3626(b)( 2) stood alone it would

purport to entitle defendants to immediate termination of at least

some of the prospective relief ordered by the December 199224

judgment; indeed, it is arguable that this is true as to all the

prospective relief granted in the December 1992 judgment. However,

as the plaintiffs and the United States point out, section

3626(b)(2) does not stand alone; rather, it is immediately followed

by section 3626(b)(3), which provides:

“(3) Limitation.

—— Pro spective relief shall not

terminate if the court ma kes written findings based on

the record that prospective relief remains necessary to

correct a current or 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.”

Defendants do not seriously contend that, if the dist rict

court appropriately makes, on a proper basis, all the findings

refer enced in section 3626(b)(3), that termination

— — even though

otherwise called for by section 3626(b)(2)

— — is nevertheless

required. Rather, defendants’ contention is that to come within

the section 3626(b)(3) “limitation,” the findings called for by

section 3626(b)(3) must be entirely “based on the record” as it

existed when the order g r anting prospective relief was

entered

—— here, December 1992

—— or, at most, also as it existed when

the motion to vacate or terminate under section 3626(b)(2) was

filed. We note, initially, that we do not have before us any such

record. We do not have the record of the evidentiary hearing in

October 1992 that led to the December 1992 judgment. Moreover, the

docket entries from January 1993 through August 1996 occupy a stack

almost half-an-inch thick of letter-size pages in the record, and25

the record before us includes only the tiniest fraction of the

documents thu s listed (we realize many

— — perhaps all

—— of these

documents may

well be immaterial). Defendants do not explain how

we can direct the district court to terminate th e prospective

relief of the D ecember 1992 judgment even if we were to accept

defendants’ interpretation of “based on the record” as used in

section 3626(b)(3). Moreover, it is by no means clear that

defendants’ interpretation of section 3626( b)(3)’s “based on the

record” is correct. A strong argument to the contrary can be made,

namely: that section 3626(b)(3) contemplates that the findings

referenced therein could be made in respect to prospective relief

ordered several years previously

—— as in this case

—— and that the

court could find that such relief “ remains ” necessary to correct “a

current or ongoing ” violation, all of which indicates that present

conditions (respecting the pa rticular subject matter as to which

prospective relief was previously ordered) are what is ultimately

determinative for purposes of section 3626(b)(3); and if present

conditions are determinative, then that suggests that the court in

determining whether to make the section 3626(b)(3) findings is not

restricted to a record made years previously. Similarly, it is

clearly arguable that even if t he record made years ago when the

prospecti ve relief was ordered would have then supported the

findings called for by section 3626(b)(2)

—— albeit there were no such

findings then made one way or the other on the section 3626(b)(2)14 And, we again note that defendants have not asked us to order

the district court to stay the December 1992 judgment under section

3226(e)(2). The validity of section 3626(e)(2) is irrelevant both

to the discovery issue and to the issue of the proper construction

of “based on the record” in section 3626(b)(3), as defendants have

recognized (see note 11, supra , and accompanying text).

26 factors

—— nevertheless termination should now be ordered if the facts

as now shown to the district court do not show that n ow such

“relief remains necessary to correct a current or ongoing

violation”; if the four-year-old order

—— though warranted when made,

no longer “ remains necessary” or there is now no longer any

“ current or ongoing violation,” then section 3626(b)(3) should not

block termination of relief.

Like their arguments that they are entitled to have us now

order the district court to i mmediately terminate relief,

defendants’ arguments about discovery are premised entirely on the

theory that “based on the record” in section 3626(b)(3) refers to

no more than the record already existing when the motion to vacate

is filed. That, however, is not clear and indisputable. Moreover,

defendants ask only for a stay of discovery pending our ruling on

their appeal, which we have now dismissed. We note that defendants

have not sought to prevent any particular discovery, but only a

blanket ban on any and all discovery. 14

Defendants as petitioners for mandamus bear the burden of

showing “that their right to issuance of the writ i s ‘clear and

indisputable.’” O zee v. American Council on Gift Annuities, Inc

.,15 While arguably the “clear and indisputable” right to relief

standard might be relaxed in the context of an issue of law where

the failure to do so would likely cause the mandamus petitioner

severe harm (or there are other compelling circumstances), this is

not such a case. Here, the defendants have never retracted their

assertion that there is nothing they desire to do, or are

considering doing, respecting the prison system that the December

1992 judgment would preclude; moreover, they have (until at least

a month after this case was under submission following oral

argument to the panel) kept their Rule 60(b) motion pending; also

they have done little, if anything, to press for a ruling on either

of their motions, apart from asserting to the district court (and

this Court) that it should rule on their PLRA motion without

considering anything not of record when the motion was filed.

16 Plaintiffs’ contentions that the PLRA is unconstitutional as

applied to consent judgments entered before its effective date, or

that by its terms it does not apply to such judgments, or that in

such an instance it does not authorize termination prior to April

26, 1998, are all essentially questions of law which should present

no obstacle to a prompt ruling on defendants’ September 6, 1996,

27 110 F.3d 1082, 1093 (5th Cir. 1997) (quoting Mallard v. United

States District Court

, 109 S.Ct. 1814, 1822 (1989)). This they

have not done. 15 Moreover, issuance of mandamus is discretionary

with this Court, and as a matter of discretion we decline to now

issue the requested writ in the present circumstances. S ee Kerr v.

United States District Court , 96 S.Ct. 2119, 2124 (1976); Overton

at 958.

Our action herein must not be misunderstood.

We are well aware that section 3626( e)(1) provides that the

district court “ shall promptly rule on” any motion to modify or

terminate prospective relief in a prison conditions case (emphasis

added). And, we assume that the district court will comply with

this unchallenged and important directive. 16 Indeed, defendants domotion, which is based entirely on the PLRA (and which is now the

only motion to vacate pending before the district court).

28 not contend that the district has not done so (except insofar as

they contend that any reference to or discov ery respecting facts

not memorialized in the record when their September 6, 1996 motion

was filed is a failure to rule promptly). There would seem to be

little reason for extended delay. The district court below is

familiar with the case, of course. The lawyers are also presumably

familiar with the cas e, not only from the 1992 hearing but also

from the discovery prior thereto and from discovery since June

1996. There is

— — or was

—— a record (albeit not now before us) on the

basis of which the district court issued its December 1992

memorandum and judgment. Relevantly updating that to the present

with respect to the “eight substantive issues” as to which the

December 1992 judgment issued “continuing permanent injunctive

orders” should not be overly burdensome or time consuming. We note

that so far as the record before us discloses, plaintiffs have not

even alleged that there is any current or ongoing constitut ional

violation in the prison system. We emphasize, moreover, that

ruling on defendants’ September 6, 1996, motion should not entail

a general overall examination of the prison system, but should

simply be focused on those continuing injunctive orders (concerning

the “eight substantive issues”) contained i n the December 1992

judgment. Ruling on the motion is not an occasion to examine other29

a reas of prison conditions or practices, neither the “nine

substantive areas” as to which the December 1992 judgment “resulted

in complete relief from judgment and termination of the court’s

jurisdiction” nor areas not dealt with one way or the other in the

December 1992 judgment. Further, it must be remembered that the

limitation on termination provided by section 36 26(b)(3) is

restricted to instances where the district court makes affirmative

findings, adequately based on the record, as stated in section

3626(b)(3). Finally, as we recently noted in J ohnson v. Rodriguez

,

110 F.3d 299, 312 (5th Cir. 1997), “‘systemwide injunctive relief

may not be predicated on individual misconduct that “is not part of

a pattern of persistent and deliberate official policy”’” (quoting

Ruiz v. Estelle , 679 F.2d 1115, 1154 (5th Cir. 1982), modified in

part

, 688 F.2d 266 (5th Cir. 1982), cert. denied , 103 S.Ct. 1438

(1983)). S ee also Lewis v. Casey

, 116 S.Ct. 2174, 2183-84 (1996).

Our denial of the instant mandamus is without pre judice to

whatever rights defendants may have to seek such relief should the

district court fail to rule promp tly on defendants’ September 6,

1996, motion to vacate.

We now turn to the motion of Representative Culberson and

Senator Brown to intervene in t he proceedings before this Court.

We deny the motion. Neither Culberson nor Brown is or was a party

to this case, and intervention on appeal is inappropriate under the

circumstances here, particularly as they have pending in the30

district court a motion to intervene which the district court has

not ruled on (and neither complains of that failure to rule nor

seeks from us any order requiring the district court to rule). If

the district court denies that motion, they may appeal the denial

of their motion. We note in passing that it is at best doubtful

that either Representative Culberson or Senator Brown is that sort

of “state or local official or unit of government” to whom or which

section 3626(a)(3)(F) grants a right to intervene. Because we have

denied their motion to intervene in th e proceedings before this

Court, we likewise deny the motion of Representative Culberson and

Senator Brown to file in this Court their motion to terminate

federal jurisdiction over the Texas priso n system. We likewise

deny all other motions of Representative Culberson and Senator

Brown that are pending in this Court and have not previously been

ruled on by this Court or a judge hereof.

Conclusion

We dismiss the appeal of defendants because the district

court’s Septemb er 23, 1996, order failing to immediately rule on

their September 6, 1996, motion to vacate the December 1992

judgment is not a final, appealable order under section 1291, or

the collateral order rule, and does not constitute an order

appealable under section 1292(a)(1).

We deny defendants’ petition for writ of mandamus.

We deny the motion of Texas Representative Culberson and Texas31

Senator Brown to intervene, and likewise deny all other pending and

previously unruled-on motions of said putative intervenors.

APPEAL DISMISSED; MANDAMUS DENIED;

MOTION TO INTERVENE and RELATED MOTIONS DENIED