United States Court of Appeals 

### FOR THE EIGHTH CIRCUIT

___________ No. 97-1123

___________ Billy Joe Tyler; Joseph Fitzpatrick; * Richard Belleville, individually and on * behalf of all similarly situated inmates, *
* Plaintiffs - Appellees, *
* v. * Appeal from the United States * District Court for the James W. Murphy, Sheriff of the City * Eastern District of Missouri

. of St. Louis, *
* Defendant - Appellant, *
* City of St. Louis, *
* Defendant - Appellee. *

___________ Submitted: September 10, 1997 Filed: February 5, 1998

___________ Before WOLLMAN, BRIGHT, and LOKEN, Circuit Judges.

___________ LOKEN, Circuit Judge.

In 197 4, inmates of the St. Louis City jail commenced this clas s action challenging conditions of their confinement. The district cour t found constitutional violations because of overcrowding, entered injunctiv e relief, and has extensively

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regulated the St. Louis jail facilities for over twenty years. In 1993 an d 1994, the court issue d a series of injunctive orders establishing various popu lation ceilings, including a maximum of twenty technical probatio n vio lators at the City’s Medium Security Institution (MSI). City judge s appealed the 1994 orders, and we summarily vacated and remanded for furthe r consideration in ligh t of the newly enacted Violent Crime Control and Law Enfor cement Act of 1994, codified at 18 U.S.C. § 3626. Tyler et al. v

. Tripp et al. , No. 94-3646 (8th Cir. Dec. 21, 1994).
In August 1996, the district court h ad not yet reconsidered its 1994 orders as we directed. The inmates brought a new motion to establish a twenty -person ceiling or “cap” on technical probation violators held a t MSI. In the meantime, Congress had enacted the Prison Litigation Reform Act ( PLRA), which amended § 3626 to impose greater procedural an d substantive restrictions on federal court authority to issue broa d injunctions regulating conditions at state and local prisons. On Septembe r 16, 1996, without holding a hearing, making findings of fact, or discussin g the PLRA amendments, the district court granted the inmates’ motion.

Some w eeks later, the City of St. Louis Sheriff, James Murphy , del ivered two alleged probation violators for confinement at MSI. The y were rejected because MSI had reached the twenty-probation-violator cap, even though MSI had more than seventy-five avail able beds. Sheriff Murphy had to pay for their confinement elsewhere. He then moved to dissolve or reconsider the September 16 injunction as exceeding the district court’s equitable powers and violating the PLRA. The district court summaril y denied that motion without discussing the PLRA. Sheriff Murphy appeals. On Fe bruary 28, 1997, we issued an order staying all injunctive order s affecting the technical-probation-violator cap. We now reverse.

## -3- I.

The inmates argue that we lack jurisdiction for three reasons : because the district court’s September 16, 1996, order merely clarified it s ear lier injunction orders and therefore is not appealable, see Mikel v

. Gourley , 951 F.2d 166, 169 (8th Cir. 1991); because Sheriff Murphy’s appea l is a belated appeal f rom the September 16 order; and because the doctrine of issue preclusion bars the Sheriff from reliti gating the validity of the technical probation violator cap.

These contentions are without merit. The appealability of th e September 16 order is not at issue. The Sheriff’s notice of appea l expli citlystates that he is appealing the order denying his motion t o dissolve that injunct ion. Absent abuse, such as the filing of successive unsuccessful motions, the order denying a motionto dissolve an injunction is appealable. See 28 U.S.C. § 1292(a)(1); SEC v. Suter , 832 F.2d 988, 99 0 (7th Cir. 1987). The September 16 order had no impact on Sheriff Murphy unt il he was barred from confining alleged probation violators in empt y jail cells. He promptly moved to dissolve the injunction, alleging change d circumstances including enactment of the PLRA. That motion was timel y under Fed. R. Civ. P. 60(b)(5), and its denial i s appealable. See Johnson
v. He ffron , 88 F.3d 404, 407 (6th Cir. 1996); Association for Retarde d Citizens v. Sinner , 942 F.2d 1235, 1239-40 (8th Cir. 1991); James v. Lash , 949 F. Supp. 691, 693 (N.D. Ind. 1996). The doctrine of issue preclusion does not foreclose such reconsideration of prosp ective relief. See, e.g. , Rufo v. Inmates of Suffolk County Jail , 502 U.S. 367, 384 (1992).

II.
Turning to the merits, Sheriff Murphy argues that the district court erred in summarily denying his motion to dissolve the injunction unde r prior law because the technical probation violator cap was imposed “withou t th e slightest consideration of whether it was needed to remedy a constitutional violation.” Alternatively, he argues

## Sectio n 3626 was further amended by Pub. L. No. 105-119, § 123, 111 Stat

. 1 

## 2470 (1997). In this opinion, we quote and apply the statute presently in effect with these 1997 amendments.
-4- the court should have dissolved the injunction because it violates the PLRA -- it is not the leas t restrictive remedy needed to correct the violation of a federal right of particular plaintiffs, it was entered without th e requisite evidentiary hearing and mandated findings of fact, and it is a “prisoner release ord er” that may only be entered by a three-judge court,
see 18 U.S.C. § 3626(a)(3)(B). We agree that the district court’ s Septe mber 16 order violated the PLRA, and therefore the court erred i n denying the Sheriff’s motion to dissolve. Thus, we need not address the Sheriff’s argument concerning prior law.

Section 802 of the PLRA amended 18 U .S.C. § 3626 to further restrict the power of federal courts to manage prison con ditions through injunctive orders a nd consent decrees. The statute “limits remedies to thos e necessary to remedy the proven violation of federal rights.” H.R. Rep. No

. 104-21, at 24 n.2 (1995); see Plyler v. Moore , 1 00 F.3d 365, 369 (4th Cir. 1996). The district court’s summar y denial of Sheriff Murphy’s motion to

1 diss olve violated § 3626 in numerous respects. The motion sought t o dissolve an injunctio n granting “prospective relief,” defined by the PLRA to include “all relief other than compensatory monetary damages. ” § 3626 (g)(7). Therefore, the motion was explicitly authorized b y § 3626(b), yet it was denied without compliance with that subsection’ s relevant provisions:

(b)(2) Immediate termination of prospec tive relief. -- In any civil action with respect to prison conditions, a defendant or intervener shall be entitled to the immediate te rmination of any prospective relief if the relief was approved o r granted in the ab sence of a finding by the court that the relief i s narrow ly drawn, extends no further than necessary to correc t the violation of the Fed eral right, and is the least intrusive means necessary to corre ct the violation of the Federal right.

## The parties debate at length whether the September 16 order was merely a n 2 

## extension of prior injunctions or the grant of new or modified prospective relief. We belie ve the issue is irrelevant to the proceedings that should be held on remand

. However, we note that the September 16 order expanded the previously undefine d term , “technical probation violator,” to include absconders. To that extent at least, it fell within the purview of § 3626(a)(3).
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(3) Limitation. -- Prospective relief s hall not terminate if the court makes written findings based on the record tha t prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than nec essaryto correct the violation of the Federal right, an d tha t the prospective relief is narrowly drawn and the leas t intrusive means to correct the violation.

See Gavin v. Branstad , 122 F.3d 1081, 1084 (8th Cir. 1997), holding that § 3626(b)(2) is retroactive. Moreover, the injunction in question is a "prisoner release ord er," that is, one “that has the purpose or effect of red ucing or limiting the prison population, or that directs the releas e from or nonadmission of prisoners to a prison.” § 3626(g)(4). Yet th e cou rt granted the injunction on September 16, 1996, after the effectiv e date of the PLRA, without discussing the applicability of § 3626(a)(3), 2 which provides in relevant part:

(a)(3) Prisoner release order. -- (A) I n any civil action wit h respect to prison conditions, no court shall enter a pr isoner release order unless (i) a court has previousl y entered an order for less intrusive relief that has failed to rem edythe deprivation of the Federal right sought to b e remedie d through the prisoner release order; and (ii) th e defendant has had a reasonable amount of time to comply wit h the previous court orders. (B) In any c ivil action in Federal court with respect to prison conditions, a prisoner release order shall be entere d only by a three-judge co urt in accordance with section 2284 of tit le 28, if the requirements of subparagraph (E) have bee n met.

## -6- (E) The thre e-judge court shall enter a prisoner release order only if the court finds by clear and convincing evidence that -- (i) crowding is the primary cause of the violation of a Federal right; and (ii) no other relief will remedy th e violation of the Federal right.

The inmat es respond that the PLRA’s immediate termination provision in § 3626(b)(2) is unconstitutional. It violates separation of power s prin ciples, they contend, by reopening final judgments and prescribin g rules of decision for pending cases. It violate s due process by reopening final judgments. It deprives inmates of equal protection by limiting thei r right o f access to the courts. And it deprives federal courts of thei r power to remedy constitutional violations.

We consid ered and rejected all but the last of these contentions in Gavin , 12 2 F.3d at 1085-92. Accord Dougan v. Singletary , 129 F.3d 142 4 (11th Cir. 1997); Plyler v. Moore , 100 F.3d at 3 70-75. We likewise reject the argument that § 3626(b) cripples the judiciary’s ability to remed y con stitutional violations. Section 3626(b)(2) requires immediat e termination of orders that were entered without requisite findings. “It is well-established that Congress has the authority . . . to require a court in equity to make certain findings before issuing injunctive relief. ” Gavin , 122 F.3d at 1087. Section 3626(b)(3) expressly permits the distric t court to continue appropriately tailored prospec tive relief that the court finds necessary to remedy a current violation of federal rights. Thus, th e statute preserves a court’s ability to remedy constitutional violations. Accord Green v. Peters , 1997 WL 769458, at *8 (N.D. Ill. Dec. 5, 1997)

. Federal courts are courts of limited jurisdiction, and it is well within Congress’s power to preclude them from exercising remedial powers beyond those necessary to remedy violations of federal law. “[P]rinciples o f federalismand comity require that ‘a federal court’s regulatory control

. . . not extend beyond the time required to remedy the effects of pas t [constitutional violations].’” ARC v. Sinner , 942 F.2d at 1239, quoting Board of Educ. v. Dowell , 498 U.S. 237 (1991).

## “[The statute] provides that any party can seek to have a court decree ende d 3 

## after 2 years . . . . As a result, no longer will prison administration be turned over to Federal judges for the indefi nite future . . . .” 141 Cong. Rec. S14419 (daily ed. Sept. 27, 1995) (statement of Sen. Abraham).
-7- III.
Early in this appeal, because the denial of Sheriff Murphy’s motion to dissolve was plainly at odds with the PLRA, we stayed the relevan t inju nctive orders and asked the parties to address “how the distric t court’s orders can be brought into compliance with 18 U.S.C. Sec. 3626.” Citing § 3626(b)(1)(iii), the City argues that the district court’s 1993 and 1994 injunctions may not be terminated until April 26, 1998, two years after th e PLRA’s effective date. We disagree. Section 3626(b)(2 ) expres slyallows Sheriff Murphy to seek immediate termination of an y prospective relief that was granted without the findings specified in that provision. Section 3626(b)(1) was enacted for a different purpose -- to author ize periodic new motions to terminate prospective relief that wa s initially based upon the proper findings. 3
Sheriff Murphy argues that the distr ict court’s injunctions imposing technical probation violator caps and other population limits are “prisone r release orders” that must be dissolved unless a three-judge district court , on remand, makes the findings mandated by § 3626(b)(3). Se e §§ 3626(a)(3)(B) and 3626(g)(4). The City responds that proponents o f pros pective relief must be given an opportunity on remand to presen t evidence to a three-judge court supporting such relief. With the exceptio n of the three-judge court issue, on which we defe r final judgment, we agree with both parties.

The dist rict court must consider on remand the Sheriff’s motion t o dissol ve the technical probation violator cap, and the Sheriff’s late r motion to terminate all prospective relief in this litigation. Both are mot ions for immediate termination under § 3626(b)(2). The Sheriff mus t show t hat the challenged prospective relief, when granted, was no t accompanied by the findings specified in § 3626(b)(2) -- “that the

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relief is narrrowly drawn, extends no further than necessary to correct th e violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” This § 3626(b)(2) inquiry is addressed to the district judge who granted the prospective relief in question, or to whom the case is now assigned.

If the c ourt finds that any prospective relief was granted withou t the § 3626(b)(2) find ings, then that relief must be terminated unless the
cou rt makes the findings specified in § 3626(b)(3) -- “that prospectiv e relief remains necessary to correct a current an d ongoing violation of the Federal right, extend s no further than necessary to correct the violation of the Federal right [of a particular plaintiff or plaintiffs], and that the prospective relie f is narrowly drawn and the least intrusive means to correct t he violation.” At this point, we agree with the City tha t plaint iffs, who now face the termination of prospective relief, ar e entitled to seek new or extended prospective relief under the standards se t forth in § 3626(a). If the prospective relief sought by plaintiffs under § 3626(a) includes a prisoner release order, as defined in § 3626(g)(4), that order must be entered by a three-judge district court operating i n accordance with 28 U.S.C. § 2284. See § 3626(a)(3)(B).

What is less clear from the statute’s text is whether th e § 3626(b)(3) findings that will avoid termination of an existing injunctio n must in all cases be made by a three-judge court if the injunction include s a prisoner release order. We think it likely that in most cases plaintiff s will argue for both § 3626(b)(3) findings and new or modified prospective relief under § 3626(a)(3) at the same time. In that event, the district court should refer th e prisoner release order aspects of both issues to a three- judge court, because it would be needlessly inefficient to hav e § 3626(b)(3) findings decided by a single district judge when overlapping
or even identical § 3626(a)(3) issues must be referred to a three-judg e cou rt. On the other hand, if plaintiffs do not seek § 3626(a)(3 ) aff irmative relief, it may well promote judicial efficiency to have th e § 3 626(b)(3) findings made by the same single judge who must make th e threshold findings under § 3626(b)(2). With the statute ambiguous and the practical ramifications unclear, we

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conclud e that our best course of action is to leave the question of th e proper interplay between § 3626(a)(3) and § 3626(b)(3) for initial decisio n by the district court.

Conclusion.
The first three paragraphs of the di strict court’s Order of December 6, 1996, are vacated, and the case is remanded f or further proceedings not inconsistent with this opinion. The first sentence of this court’ s Febru ary28, 1997, stay order will remain in effect until the distric t court disposes of all motions heretofore filed by Sheriff Murphy seeking the termin ation of prospective relief under 18 U.S.C. § 3626(b). Th e record on appeal suggests that the district court ignored this court’ s ord er of December 21, 1994, remanding for further consideration of the n newly-enacted 18 U.S. C. § 3626. Now Congress has rewritten § 3626 in the PLRA, as recently amended. We expect the district court to comply with th e statute as construed in this opinion as quickly as possible.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.