*

Honorable Anthony A. Alaimo, Senior U.S. District Judge for the Southern District of Georgia, sitting

by designation. 

Jeffrey LOYD, Bruce Capshaw, et al., Plaintiffs-Appellants,

v.

ALABAMA DEPARTMENT OF CORRECTIONS, Michael Haley, Commissioner, Defendants-CrossDefendants-Appellees,

Lyle Haas, Administrator of the Jackson County Department of Health in his official capacity, DefendantAppellee,

J.D. Atkins, Jackson County Commissioner; et al., Defendants-Appellees.

No. 98-6189.

United States Court of Appeals,

Eleventh Circuit.

May 26, 1999.

Appeal from the United States District Court for the Northern District of Alabama. (No. CV92-N-0058-NE),

Edwin Nelson, Judge.

Before BIRCH and BARKETT, Circuit Judges, and ALAIMO*

, Senior District Judge.

BIRCH, Circuit Judge:

Appellants, representing all prisoners who are or will be confined at the Jackson County Jail in

Scottsboro, Alabama, appeal the district court order terminating: (1) a 1994 consent decree governing the

conditions of confinement at the Jackson County Jail, (2) a 1995 permanent injunction ordering the state to

remove state inmates from the Jackson County Jail in a timely manner, and (3) a 1995 consent decree

governing the responsibilities of the state of Alabama in removing state prisoners from Jackson County jails.

I. BACKGROUND

On November 7, 1994, the district court entered an order approving and adopting a consent decree

concerning the conditions of confinement at the Jackson County Jail. The parties to that consent decree

included the appellants, Jackson County, the Jackson County Commissioners, the Jackson County Sheriff,

and the Chief Jailor of the Jackson County Jail. On January 12, 1995, the district court entered a permanent
 1

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.

18 U.S.C. § 3626(b)(2). 

2

injunction against the Alabama Department of Corrections, ordering the timely removal of state prisoners

from the Jackson County Jail. On March 17, 1995, the district court entered an order adopting and approving

a second consent decree concerning the removal of state prisoners from county jails, signed by the appellants,

the Commissioner of the Department of Corrections, the Department of Corrections, the Alabama Department

of Public Health, and the Administrator of the Jackson County Health Department. On July 2, 1997, the

Attorney General and the Commissioner of the Alabama Department of Corrections (hereinafter collectively

referred to as the "Attorney General") filed a motion to terminate the consent decrees and the permanent

injunction pursuant to the Prison Litigation Reform Act ("PLRA"), codified at 18 U.S.C. § 3626(b)(2).1

 The

Attorney General claimed status as an intervenor under 18 U.S.C. § 3626(b)(2) of the PLRA and as a

representative of the Alabama Department of Corrections and the Department of Public Health. On January

27, 1998, the district court granted the Attorney General's motion for termination of both consent decrees and

the permanent injunction.

The appellants argue that the Attorney General does not have standing to intervene to terminate the

1994 consent decree because the state of Alabama was not a party to that consent decree. They also challenge

the decision of the district court not to hold an evidentiary hearing on the motion to terminate. The appellants

further contend that the termination provisions of the PLRA under 18 U.S.C. § 3626(b)(2) are

unconstitutional.

 We review de novo a district court's judgment on intervention as of right. See Purcell v.

BankAtlantic Fin. Corp., 85 F.3d 1508, 1512 (11th Cir.1996). We review the district court's denial of an

evidentiary hearing for abuse of discretion. See United States v. Fernandez, 136 F.3d 1434, 1438 (11th
 2

Citing Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986), the appellants argue that

the Supreme Court has decided that intervenors are required under Article III to possess standing as a matter

of constitutional law. This is not so. In Diamond, the Court stated that an intervenor, unless otherwise

demonstrating Article III standing, may not initiate an appeal if the party on whose side he intervened has

decided not to appeal. Id. at 68, 106 S.Ct. at 1706. The Court left open the question of "whether a party

seeking to intervene before a District Court must satisfy not only the requirements of Rule 24(a)(2), but also

the requirements of Art. III." Id. at 68-69, 106 S.Ct. at 1707. Here, appellants, not the State, initiated the

appeal of the district court's order terminating the consent decrees. While ambivalent about their position,

the county defendants have remained active in opposing the appeal of the district court's order terminating

both consent decrees and the permanent injunction. See Brief of (County Defendant) Appellees, at 6-8.

Accordingly, there is an existing "case or controversy." 

 3

"Upon timely application anyone shall be permitted to intervene in an action ... when the applicant claims

an interest relating to the property or transaction which is the subject of the action and the applicant is so

situated at the disposition of the action may as a practical matter impair or impede the applicant's ability to

protect that interest, unless the applicant's interest is adequately represented by existing parties." Fed.R.Civ.P.

24(a)(2). 

 4

See Fed.R.Civ.P. 24(b). 

3

Cir.1998). Questions of constitutional law we review de novo. See Pleasant-El v. Oil Recovery Co., 148 F.3d

1300, 1301 (11th Cir.1998).

II. DISCUSSION

A. Intervention by the Attorney General

 The appellants argue that the Attorney General did not possess the standing to intervene and file a

motion to terminate the 1994 consent decree because the Attorney General was not a party to the decree. As

an initial matter, we note that this circuit has held that "a party seeking to intervene need not demonstrate that

he has standing in addition to meeting the requirements of Rule 24 as long as there exists a justiciable case

and controversy between the parties already in the lawsuit." Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th

Cir.1989).2

 See also Cox Cable Communications, Inc. v. United States, 992 F.2d 1178, 1181 (11th Cir.1993).

We, therefore, need not inquire into the Attorney General's standing to seek intervention in this case.

 Under Federal Rule of Civil Procedure 24, a party may seek to intervene of right3

 or with the

permission of the district court.4

 A movant must establish the following requirements to intervene as of right:
4

(1) his application to intervene is timely; (2) he has an interest relating to the property or transaction

which is the subject of the action; (3) he is so situated that disposition of the action, as a practical

matter, may impede or impair his ability to protect that interest; and (4) his interest is represented

inadequately by the existing parties to the suit.

Chiles, 865 F.2d at 1213. 

 No party has challenged the timeliness of the Attorney General's intervention. We focus instead on

whether the Attorney General has sufficient "interest" in the existing suit to make intervention proper. The

intervenor must be "at least a real party in interest in the transaction which is the subject of the proceeding.

This interest has also been described as a direct, substantial, legally protectable interest in the proceedings."

Worlds v. Department of Health & Rehabilitative Servs., 929 F.2d 591, 594 (11th Cir.1991) (per curiam)

(footnotes, citations, and quotation marks omitted). Here, the 1994 consent decree states in Section D, titled

"Population," that:

Inmates in the Jackson County Jail who have been sentenced to imprisonment in the custody of the

Alabama Department of Corrections shall be transferred from the existing and new jail, and accepted

by the Department of Corrections, on a timely basis. A timely basis shall be defined as within 30

days of the time the necessary documents associated with the inmate's sentence and transfer have

been completed and forwarded to the Department of Corrections. The Jackson County Sheriff shall

enlist the assistance of the Jackson County Circuit Judges and District Judge, as well as the assistance

of the Circuit Clerk, to ensure timely preparation and forwarding of these documents. Defendants

shall inform the monitor of all unreasonable delays in the preparation and forwarding of these

documents.

R5-117, 1994 Consent Decree at ¶ 25(g). The decree orders that state inmates will be transferred from county

to state jails within a specified period of time, impacting the economic ability of the State to have facilities

available for the transfer. The 1994 consent decree thus directly affects the interests of the State of Alabama,

even though the State is not a party to the consent decree.

Furthermore, Alabama was a party to the initial suit. The fact that certain parties formed a consent

decree does not eliminate the State's interest in the suit. As the Supreme Court stated:

Of course, parties who choose to resolve litigation through settlement may not dispose of the claims

of a third party, and a fortiori may not impose duties or obligations on a third party, without that

party's agreement. A court's approval of a consent decree between some of the parties therefore

cannot dispose of the valid claims of nonconsenting intervenors; if properly raised, these claims

remain and may be litigated by the intervenor.
 5

Additionally, Alabama's interest are not adequately represented by either the appellants or the county

defendants. While both the State and the county were defendants in the initial action, they are, in reality,

adverse parties because the county wants to relieve overcrowding of its jails by ensuring that state inmates

are transferred to state jails. 

 6

A party wishing to intervene must file a motion stating the grounds for intervention, even when

intervention is permitted by statute. Fed.R.Civ.P. 24(c). 

 7

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as

binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. 

5

Local Number 93, Int'l Ass'n of Firefighters v. Cleveland, 478 U.S. 501, 529, 106 S.Ct. 3063, 3079, 92

L.Ed.2d 405 (1986). Both consent decrees and the preliminary injunction arise out of the same litigation.

It strains reason to argue now that these orders are so unrelated that a defendant to the initial litigation cannot

now act as an intervenor.

 Under the third and fourth factors described in Chiles, when the interests of the State are affected

by the 1994 consent decree, prohibiting the State from intervening would impair the State's ability to protect

its interests. See Chiles, 865 F.2d at 1213.5

 Alabama, therefore, satisfies the requirements for intervention

as of right under Federal Rule of Civil Procedure 24(a)(2). Once a party establishes all prerequisites to

intervention, the trial court has no discretion to deny the intervention. See Purcell, 85 F.3d at 1512.

 The appellants argue that because the Attorney General did not specifically invoke Federal Rule of

Civil Procedure 24 in his motion to terminate, the attempt to intervene must fail.6

 The Attorney General

stated in its motion to terminate that it was intervening under 18 U.S.C. § 3626(b)(2). Here, the Attorney

General did not file a motion to intervene, but rather filed only a motion to terminate the consent decree.

Without expressly considering the intervention issue under Rule 24, the district court did, however, rule on

the Attorney General's motion to terminate. In Farina v. Mission Investment Trust, 615 F.2d 1068 (5th

Cir.1980), we held that it is within the discretion of the district court to treat a motion to remove as a motion

to intervene. Since the district court granted the motion to remove, the circuit court concluded that the court

necessarily had accepted the intervenor as a party in the suit. Id. at 1075.7

 Accordingly, we find that it was
 8

When considering intervention of right, prejudice to existing parties—other than that caused by would-be

intervenor's failure to act promptly—is not a factor to be considered. See Stallworth v. Monsanto Co., 558

F.2d 257, 265 (5th Cir.1977). 

 9

In affirming the district court's acceptance of the Attorney General's intervention we do not dismiss lightly

the appellants' concerns here. Our holding is based on the compelling nature of the State's interest in the

litigation, in that the 1994 consent decree directly affected the State of Alabama by ordering the removal of

state inmates from county prisons within a certain period of time.

We note with concern, however, the case of Clark v. Patterson, Civil Action No. CV 78-

C5010-NE (N.D.Ala.), see Brief of Appellant, at 16-17, where the Attorney General of Alabama

attempted to represent the views of the Sheriff of Madison County, Alabama, apparently without the

sheriff's knowledge or permission. The State of Alabama may not intervene in a misguided effort

to represent an adverse party. See Kozak v. Wells, 278 F.2d 104, 113 (8th Cir.1960) (Blackmun, J.)

("courts must be on guard against the improper use of the intervention process.... The procedural

rules herein expressed are not to be taken advantage of where ... the motion for leave to intervene is

sham.").

We depart company with the dissent on the issue of the scope of the interest of the State of

Alabama. We read Chiles to hold that the State of Alabama does not need to establish Article III

standing in order to intervene in this case. Chiles requires "a justiciable case and controversy

between the parties already in the lawsuit," 865 F.2d at 1213; that provision is satisfied here. The

county defendants supported Alabama's motion to terminate the consent decree and have participated

as a party supporting that positing on appeal. This is in marked contrast to Diamond, as cited by the

dissent, where the State of Illinois filed only a "letter of interest" expressing support for the

intervenor's position. 476 U.S. at 63-64, 106 S.Ct. 1697. The county defendants have done a great

deal more here. They are appellees and have chosen to pursue the matter as an active party in the

litigation, filing briefs on appeal. Moreover, Diamond considers the ability of a party to initiate an

appeal and specifically did not consider the requirements for intervention at the district court level.

See 476 U.S. at 68-69, 106 S.Ct. 1697. Initiation of an appeal is not at issue here.

Furthermore, the interests of Alabama were affected by the November 1994 consent decree

because the success of the decree hinged on reducing the number of inmates in the county facility.

To reduce the number of inmates, the consent decree ordered Alabama to remove state inmates in a

timely manner. Other portions of the consent decree directed the county defendants to improve the

services available to the prison inmates. The facilities, services, and conditions for the old and new

county jails mandated by the 1994 consent decree could only be achieved and maintained with a

6

within the discretion of the district court here to rule upon the motion to terminate as if the State also had filed

a formal motion to intervene. Furthermore, we have also held that we will "disregard nonprejudicial technical

defects" in complying with Rule 24(c). See Piambino v. Bailey, 757 F.2d 1112, 1121 (11th Cir.1985).8

Therefore, we affirm the district court's granting to the Attorney General intervenor status by accepting, and

ruling upon, its motion to terminate the 1994 consent decree.9
smaller prison population, making Alabama a key party to the success of the November 1994 consent

decree. The Supreme Court has noted that when some parties to a litigation resolve their claims

through a consent decree, this does not eliminate the interests of "nonconsenting intervenors" whose

"claims remain and may be litigated by the intervenor." See Local Number 93, 478 U.S. at 529, 106

S.Ct. at 3079.

It would be difficult, if not impossible, to keep in effect, as the dissent suggests, the

provisions of the decree relating to services while not enforcing those provisions instructing Alabama

to reduce the prison population. The decree is not made up of two separate pieces, each of which can

survive on its own. In this situation, the decree must be read in its entirety. Newman v. Graddick,

740 F.2d 1513 (11th Cir.1984), cited by the dissent, is not in conflict with our decision here.

Newman requires that the intervenor show the decree has "adversely affect[ed] his interest." Id. at

1517. The Attorney General has satisfied that demonstration here. Finally, as we have noted, "[a]ny

doubt concerning the propriety of allowing intervention should be resolved in favor of the proposed

intervenors because it allows the court to resolve all related disputes in a single action." Federal Sav.

& Loan Ins. Corp. v. Falls Chase Special Taxing Dist., 983 F.2d 211, 216 (11th Cir.1993). 

7

B. Evidentiary Hearing

 The appellants argue that it was an abuse of discretion for the district court to refuse to conduct an

evidentiary hearing concerning the current conditions at the prison and the scope of the prospective relief that

the Attorney General wished to terminate. We agree.

The PLRA grants the district court broad authority to terminate prospective relief upon a motion by

any party or intervenor. See 18 U.S.C. § 3626(b)(2). There is, however, an important limitation on this

authority. Section 3626(b)(3) provides that

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) (emphasis added). It would read all meaning out of this section to force the party

opposing termination to show that the consent decree meets the requirements of § 3626(b)(3) and then not

provide that party with the opportunity to present evidence on that point. We hold, therefore, that it was

abuse of discretion for the district court to refuse to hold an evidentiary hearing. See also Tyler v. Murphy,

135 F.3d 594, 597-98 (8th Cir.1998) (on remand proponents of prospective relief must be given opportunity

to present evidence); Benjamin v. Jacobson, 124 F.3d 162, 179 (2d Cir.1997) (record may include
8

supplemental evidence presented to the court), reh'g en banc granted, Dec. 23, 1997; Jensen v. County of

Lake, 958 F.Supp. 397, 406-07 (N.D.Ind.1997) (at hearing on termination, prisoners "will have the

opportunity to show whether ongoing constitutional violations exist" at the jail); Carty v. Farrelly, 957

F.Supp. 727, 733 (D.V.I.1997) (holding evidentiary hearing to determine whether constitutional violations

were current and ongoing).

The Attorney General argues that no evidentiary hearing was necessary because the "record" in this

case was current. It is true that the court-appointed monitor, Dr. William E. Osterhoff, did provide eleven

reports to the court, the most recent of which was filed two months prior to the motion to terminate. The

Attorney General's argument fails, however, because the purpose of an evidentiary hearing is far greater than

simply to receive a written report. A report alone cannot be cross-examined or disputed. The party opposing

termination must be given the opportunity to challenge or supplement the findings of the monitor and to

present evidence concerning the scope of the challenged relief and whether there are "current and ongoing"

violations of federal rights in the prison.

C. Permanent Injunction

Section 3626(b)(2) provides for the immediate termination of any prospective relief under certain

conditions. The PLRA defines "prospective relief" to mean "all relief other than compensatory monetary

damages." 18 U.S.C. § 3626(g)(7). "Relief" is defined as "all relief in any form that may be granted or

approved by the court, and includes consent decrees but does not include private settlement agreements." 18

U.S.C. § 3626(g)(9). Accordingly, permanent injunctions, as a form of prospective relief, fall under the

immediate termination provisions of the PLRA. We have previously affirmed the termination of an injunction

under this same section of the PLRA. See Parrish v. Alabama Dep't of Corrections, 156 F.3d 1128, 1129
 10It is not unusual for a court to modify or even terminate an injunction in response to a change in the law.

See Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421, 431-32, 15 L.Ed. 435 (1855).

See also Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 2006, 138 L.Ed.2d 391 (1997) ("A court errs when

it refuses to modify an injunction or consent decree in light of [statutory or decisional law] changes."). 

9

(11th Cir.1998). See also Tyler v. Murphy, 135 F.3d 594, 596 (8th Cir.1998) (holding that an injunction must

be considered under restrictions of 3626(b)(2)).10

Appellants argue that the permanent injunction at issue here is based on findings of constitutional

violations, and because a court is not authorized to grant injunctive relief against a state agency that is broader

than necessary to remedy the constitutional violation, see Gibson v. Firestone, 741 F.2d 1268, 1273 (11th

Cir.1984), the permanent injunction, by definition, is narrowly tailored to correct any constitutional violations

and thus complies with requirements of the PLRA.

Since we have determined that it was improper for the district court to refuse to hold an evidentiary

hearing concerning conditions in the prison or scope of relief approved in the litigation, we decline to address

this portion of the appeal here. Rather, we will allow the district court to review appellant's arguments during

the evidentiary hearing ordered in this opinion.

D. Constitutionality of PLRA, 18 U.S.C. § 3626(b)

In a companion case, Nichols v. Hopper, 173 F.3d 820 (11th Cir.1999), we held that the termination

provisions of the PLRA are constitutional under a separation of powers challenge as articulated in United

States v. Klein, 80 U.S. (13 Wall.) 128, 20 L.Ed. 519 (1871). 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), we held that the

PLRA 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
 11In Dougan, the plaintiffs challenged section 3626(b)(2) under the separation of powers doctrine that

forbids legislation that "command[s] the federal courts to reopen final judgments," as articulated most recently

in Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219, 115 S.Ct. 1447, 1453, 131 L.Ed.2d 328 (1995). 

10

separation of powers doctrine, id. at 1426.11 The appellants' challenges to the constitutionality of the PLRA

termination provisions, therefore, are without merit.

III. CONCLUSION

We AFFIRM the district court's treatment of the Attorney General as an intervenor. We REVERSE

the district court's decision not to hold an evidentiary hearing and REMAND to the district court to hold a

hearing consistent with this opinion. We AFFIRM the district court's finding that the PLRA withstands

constitutional scrutiny. 

AFFIRMED in part, REVERSED in part, REMANDED. 

BARKETT, Circuit Judge, concurring in part and dissenting in part:

I agree with the majority that Loyd was entitled to an evidentiary hearing in the district court and that

his constitutional challenge to the PLRA must fail under our precedents. However, I believe that the majority

errs in holding that the Attorney General was entitled to seek termination of the entire November 1994 decree

without satisfying Article III standing requirements.

There is no question that the Attorney General would be a permissible intervenor in a case where one

of the parties to a consent decree also sought termination. Intervention in that context would not require a

showing of Article III standing. Chiles v. Thornburgh, 865 F.2d 1197, 1212-13 (11th Cir.1989). Here,

however, the Attorney General alone asked the district court to terminate the November 1994 decree. The

parties to the decree, the county defendants, did not and have not sought to join the Attorney General's motion

to terminate or independently move to terminate the decree. The Supreme Court's decision in Diamond v.

Charles, 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986), indicates that the Attorney General must satisfy

Article III standing requirements in these circumstances.
11

In Diamond, noting Article III's requirement of injury-in-fact, the Court observed that, because of

the profound effect of judicial review on the populace, "the decision to seek review must be placed 'in the

hands of those who have a direct stake in the outcome.' It is not to be placed in the hands of 'concerned

bystanders,' who will use it simply 'as a vehicle for the vindication of value interests.' " Id. at 62, 106 S.Ct.

1697 (citations omitted). Accordingly, the Court held that "an intervenor's right to continue a suit in the

absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor

that he fulfills the requirements of Article III." Id. at 68, 106 S.Ct. 1697. Because the defendant in that case,

the State of Illinois, had not filed an appeal, the intervenor could not simply attempt "to ride 'piggyback' on

the State's undoubted standing," id. at 64, 106 S.Ct. 1697, but had to show that he had satisfied Article III's

demands in order to appeal since "in the absence of the State [as an appellant], there is no case for Diamond

to join." Id. See also United States v. AVX Corp., 962 F.2d 108, 112-13 (1st Cir.1992) (holding that

intervenor who opposed consent decree could not appeal the district court's order approving the decree

without satisfying Article III standing requirements). The same result obtains here. Because the Attorney

General alone asked the district court to terminate the Nov 1994 consent decree, it must show that it has a

direct stake in whether or not that consent decree will continue in force. Accordingly, the majority errs in

concluding that the Attorney General was entitled to seek termination of the consent decrees without

satisfying Article III standing requirements.

Our decision in Chiles is not to the contrary. In Chiles, we recognized that a party seeking to

intervene need not establish Article III standing "as long as there exists a justiciable case or controversy

between the parties already in the lawsuit." Chiles, 865 F.2d at 1213. Here, however, at the time the Attorney

General moved to terminate the consent decrees, there was no ongoing case or controversy between the

parties to the decree—the case between them had been settled by the consent decree that the Attorney General

was seeking to terminate. Moreover, the fact that the county defendants acquiesced in the termination of the

consent decrees before both the district court and this Court is not sufficient to create a case or controversy.
12

The Supreme Court rejected a similar contention in Diamond. In Diamond, the State of Illinois filed a "letter

of interest" expressing its support for the intervenor's position and noting that it was still a "party" to the

litigation. The Court found that this "mere expression of interest ... insufficient to bring the State into the suit

as an appellant," explaining that "[t]he State's general interest may be adverse to the interest of appellees, but

its failure to invoke our jurisdiction leaves the Court without a 'case' or 'controversy' between appellees and

the State of Illinois." Diamond, 476 U.S. at 63-64, 106 S.Ct. 1697. The same principle applies here. Because

the county defendants did not invoke the district court's jurisdiction and move to terminate the decrees, there

was no case or controversy between the plaintiffs and the county defendants at the time the Attorney General

filed the motion to terminate.

The majority concludes that the Attorney General has a sufficient direct and substantial interest in

the November 1994 consent decree, even though he was not a party to the decree, because one of the

paragraphs of the consent decree requires transfer of inmates from county jails to state-run jails within a

specified period of time. I agree that the Attorney General has a direct stake in the continued existence of

this portion of the consent decree. I do not think, however, that the fact that the Attorney General has a direct

stake in one provision of this consent decree, albeit an important one, gives him the right to seek the

termination of the entire decree, the vast majority of which only relates to the county defendants. The

majority offers no reason why the Attorney General should be able to seek termination of those portions of

the decree that only relate to the county defendants. Moreover, as the majority recognizes, the state and

county defendants have different and adverse interests, making it inappropriate for the Attorney General to

act as a representative for the county defendants.

This reasoning finds support in our decision in Newman v. Graddick, 740 F.2d 1513 (11th Cir.1984).

In Newman, we considered whether the Attorney General of Alabama had standing to challenge a consent

decree to which he had not agreed and whether he could seek modification of that decree. Because the

Attorney General was a party to the decree and the decree was approved over his objections, we held that he
13

had standing to challenge the decree. However, we explained that "he would need to show that the decree

adversely affects his interests as Attorney General of Alabama. He could not assert the interests of other

parties to the litigation." Id. at 1517. Likewise, we affirmed the district court's conclusion that the Attorney

General "had no standing to seek to modify the decree in respects that were not prejudicial to the interest of

the Attorney General." Id. at 1518. As Newman makes clear, the Attorney General's standing is confined

to his own interests; he cannot assert the interests of other parties to the litigation. See also Graddick v.

Newman, 453 U.S. 928, 934, 102 S.Ct. 4, 69 L.Ed.2d 1025 (1981) (Powell, J.) (denying stay to Alabama

Attorney General on basis that he lacked standing because, at the time, Alabama statutes vested responsibility

over prison system in the Governor, who opposed stay).

I recognize that, even if the Attorney General lacks the authority to terminate the remaining portions

of the November 1994 decree, the district court would have the authority to do so sua sponte. See United

States v. City of Miami, 2 F.3d 1497, 1506 (11th Cir.1993). However, I believe that the district court should

have an opportunity to decide whether it will exercise its discretion to act sua sponte, especially given the fact

that its decision on this point will affect the scope of the evidentiary hearing it needs to hold. This follows

the same approach we took in Magluta v. Samples, 162 F.3d 662 (11th Cir.1998), where we remanded a case

to the district court to permit the district court to decide whether it would dismiss plaintiff's case for failure

to comply with the local rules. Id. at 664-65.