No. 96-1241 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 JAMES L. SAFFLE, DIRECTOR, OKLAHOMA STATE PENITENTIARY, ET AL., PETITIONER v. BOBBY BATTLE, ETC., ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION WALTER DELLINGER Acting Solicitor General ISABELLE KATZ PINZLER Acting assistant Attorney General MARK L. GROSS LOUIS E. PERAERTZ Attorneys Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the court of appeals erred in remanding this case to the district court for an evidentiary hear- ing with respect to petitioners' motion to terminate previously-entered injunctions. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 1 Statement . . . . 2 Argument . . . . 11 Conclusion . . . . 20 TABLE OF AUTHORITIES Cases: American Constr. Co. v. Jacksonville Tampa & Key West Ry., 148 U.S. 372 (1893) . . . . 11 Battle v. Anderson 376 F. Supp. 402(E.D. Okla. 1974) . . . . 2, 3,12 447 F. Supp. 516 (E.D. Okla.), aff `d, 564 F.2d 388 (10th Cir. 1977) . . . . 2, 3-4, 12 564 F.2d 388 (10th Cir. 1977) . . . . 2, 4, 12 594 F.2d 786 (10th Cir. 1979) . . . . 12 614 F.2d 251 (10th Ch. 1980) . . . . 2 708 F.2d 1523 (l0th Cir. 1983), cert. dismissed, 465 U. S. 1014(1984) . . . . 5, 14 788 F.2d 1421 (10th Cir. 1986) . . . . 5, 6, 7, 16, 18 Battle v. Fields, 59 F.3d 178 (10th Cir. 1995) . . . . 7 Board of Educ. v. Dowell, 498 U.S. 237 (1991 ) . . . . 16, 17 Consumer Gas & Oil, Inc. v. Farmland Indus., Inc., 84 F.3d 367 (10th Cir. 1996) . . . . 19 Delta Air Lines, Inc. v. August, 450 U. S. 346 (1981) . . . . 19 Freeman v. Pitts, 503 U.S. 467(1992) . . . . 16,17 Green v. County Sch. Bd., 391 U. S. 430(1968) . . . . 5,14 Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251 . . . . 12 Heckler v. Campbell, 461 U. S.458 (1983) . . . . 19 Henry v. City of Rock Hill, 376 U. S. 776(1964) . . . . 11 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page Hutto v. Finney, 437 U.S. 678 (1979) . . . . 16 Lawrence v. Chater, 116 S. Ct. 604 (1996) . . . . 11 Lewis v. Casey, 116 S. Ct. 2174 (1996) . . . . 17 Milliken v. Bradley, 433 U.S. 267 (1977) . . . . 13, 16 Missouri v. Jenkins, 115 S. Ct. 2038 (1995) . . . . 17 Plyler v. Moore, 100 F.3d 365 (4th Cir. 1996) . . . . 15 Rhodes v. Chapman, 452 U.S. 337 (1981) . . . . 5, 14 Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992) . . . . 18 Schlup v. Delo, 115 S. Ct. 851 (1995) . . . . 13 United States v. Parke, Davis & Co., 365 U.S. 125 (1961) . . . . 16 Virginia Military Institute v. United States, 113 S. Ct. 2431 (1993) . . . . 11 Wisniewski v. United States, 353 U.S. 901 (1957) . . . . 19 Zenith Radio Corp. v. Hazeltime Research, Inc., 395 U.S. 100 (1969) . . . . 13 Constitution, statutes and rule: U.S. Const.: Art. 111 . . . . 14 Amend. I . . . . 3 Amend. VIII . . . . 3, 4, 7 Amend. XIV (Due Process Clause) . . . . 3 Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321-66 . . . . 9 802(a), 110 Stat.1 321-68, 18 U.S.C. 3626(b)(2) . . . 9, 12, 13, 15 802(a), 110 Stat. 1321-68, 18 U.S.C. 3626(b)(3) . . . 9, 12, 13, 14, 15 42 U.S.C. 2000h-2. . . .2 Fed. R. Civ. P.: Rule 60(b) . . . . 18 Rule 60(b)(5) . . . . 7 Rule 65(d) . . . . 18, 19 ---------------------------------------- Page Break ---------------------------------------- V Mlscellaneous: Page H.R. Rep. No. 21, 104th Cong., 1st Sess. (1995) . . . . 13 R. Stern, E. Gressman & S. Shapiro, Supreme Court Practice (7th ed. 1993) . . . . 11 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1996 No. 96-1241 JAMES L. SAFFLE, DIRECTOR, OKLAHOMA STATE PENITENTIARY, ET AL., PETITIONERS v. BOBBY BATTLE, ETC., ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (Pet. App. A1- A4) is unpublished, but the decision is noted at 100 F.3d 967 (Table). JURISDICTION The judgment of the court of appeals was entered on November 7, 1996. The petition for a writ of certio- rari was filed on February 5, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). (1) ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT 1. Respondent Bobby Battle initiated this class ac- tion in 1972 on behalf of himself and all other inmates incarcerated within the Oklahoma State Penitentiary (OSP) system. The complaint alleged that petition- ers' operation of the State's prisons deprived the class of rights secured by the First, Eighth, and Four- teenth Amendments to the Constitution, in violation of 42 U.S.C. 1983. Battle v. Anderson, 376 F. Supp. 402,407 (E.D. Okla. 1974). In July 1973, public attention was focused on the serious problems within the Oklahoma penal system because of a riot at the State Penitentiary at McAlester, Oklahoma. Battle v. Anderson, 614 F.2d 251,253 (10th Cir. 1980).1 After the riot, on March 5, 1973, the United States intervened in the action pur- suant to 42 U.S.C. 2000h-2. 614 F.2d at 253; Battle v. Anderson, 564 F.2d 388, 392 (10th Cir. 1977). The United States' initial complaint in intervention alleged that petitioners were operating the OSP on a racially segregated basis with respect to housing, work assignments, and other privileges and activities. R. 3/5/74? The district court subsequently permitted the United States to amend its complaint to allege, in addition, arbitrary disciplinary action against ___________________(footnotes) 1 The district court subsequently determined that peti- tioners' "neglect, apathy and deliberate disregard for human decency and rights contributed directly to the tragic loss of lives and $20 million in state property damages" that resulted from the riot. Battle v. Anderson, 447 F. Supp. 516, 517 (E.D. Okla.), aff'd, 564 F.2d 388 (lOth Cir. 1977). 2 "R. "refers to the docket number for a document filed in the district court. "R.A. " refers to the date a document was filed in the court of appeals. ---------------------------------------- Page Break ---------------------------------------- 3 inmates of all races, in violation of the Due Process Clause of the Fourteenth Amendment; cruel and unusual conditions of confinement, in violation of the Eighth Amendment unreasonable restrictions on inmate religious practices and correspondence, in violation of the First Amendment; and infringement of inmates' right of access to the courts. 376 F. Supp. at 407-408. After a bench trial in March 1974, the district court held that numerous policies, practices, and conditions throughout the OSP system violated the Constitu- tion. Specifically, the court held that petitioners had violated, and continued to violate, the Eighth Amend- ment's prohibition against cruel and unusual punish- ment by imposing on prisoners unreasonable and excessive use of chemical agents as a punitive meas- ure, inadequate medical care, and prolonged periods of solitary confinement in unsanitary and dangerous conditions. The court further found that petitioners were engaging in racial segregation and discrimina- tion with regard to inmate housing, discipline, and work assignments; that petitioners' disciplinary procedures violated due process; that OSP restric- tions on inmates' receipt of correspondence and periodicals violated the First Amendment that peti- tioners were violating the inmates' freedom of relig- ion; and that petitioners were not providing inmates constitutionally adequate access to the courts. 376 F. Supp. at 408-428. The court ordered petitioners to cease their unlawful activities and instructed them to formulate a particularized remedial plan. Id at 428 437. The district court conducted subsequent hearings regarding petitioners' practices and remedial efforts between 1974 and 1977. Battle v. Anderson, 447 F. ---------------------------------------- Page Break ---------------------------------------- 4 Supp. 516, 517 (E.D. Okla.), aff'd, 564 F.2d 388 (10th Cir.). In 1977, the court concluded, in addition to its prior findings, that overcrowded conditions at certain institutions, combined with inadequate sanitary, health, and fire protections, violated the Eighth Amendment, and "present[ed] an immediate and intol- erable threat to the safety and security of inmates, prison personnel and the people of the State of 0klahoma with attendant monetary losses and costs of staggering proportions." 447 F. Supp. at 517. The court also identified numerous instances of non- compliance by petitioners with the court's prior order, and willful recalcitrance by OSP officials. Id. at 517-519, 524. As a result of those findings, the court adopted a remedial order requiring, inter alia, gradual popula- tion reductions in particular institutions; minimum per-inmate space requirements; and compliance by petitioners with state and federal water and sewage laws. 447 F. Supp. at 525-526. The court of appeals affirmed. Battle v. Anderson, 564 F.2d 388 (10th Cir. 1977). In 1979, petitioners submitted to the district court a proposed plan to remedy the continuing violations and noncompliance identified by the court in prior proceedings. In that proposal, petitioners committed to, among other things, limit the number of inmates per cell at certain institutions; renovate or close the East and West Cellhouses at McAlester and the Oklahoma State Reformatory at Granite; bring water, sewage, and electrical systems into compliance with state laws; and bring covered institutions into compli- ance with the standards of the American Correctional Association and the American Public Health Associa- tion. Petitioners further committed to comply with ---------------------------------------- Page Break ---------------------------------------- 5 the district court's prior orders regarding racial segregation, medical care, and access to the courts. The district court entered petitioners' proposed plan as an order on May 4, 1979. R. 5/4/79. 2. The court of appeals first addressed the ques- tion of the district court's continuing jurisdiction in 1983. Battle v. Anderson, 708 F.2d 1523 (10th Cir. 1983), cert. dismissed, 465 U.S. 1014 (1984). There, the court observed that "present conditions, as described by the district court, appear constitution- ally adequate under the standards set forth in Rhodes [v. Chapman, 452 U.S. 337 (1981)]." 708 F.2d at 1537. The court held that the district court should retain jurisdiction over the case "until it has eliminated the constitutional violation `root and branch;" id. at 1538 (quoting Green v. County Sch. Bd., 391 U.S. 430, 438 (1968)), and that the district court "should exercise supervisory power over the suit until it can say with assurance not only that eighth amendment violations do not presently exist but that there is no reasonable expectation that unconstitutional conditions will recur." 708 F.2d at 1537. On June 17, 1983, petitioners proposed a "Plan of Measures to be Taken to Assure Continued Constitu- tionality of Oklahoma's Prisons." Battle v. Ander- son, 788 F.2d 1421, 1423 (10th Cir. 1986). In a December 30, 1983 opinion and order, the district court approved and adopted the plan. Ibid. Although it found that "disturbances, problems and inadequa- cies" persisted in the OSP system, and that petition- ers had failed to comply with numerous aspects of its prior orders, the court held that petitioners were not currently violating the Constitution, and that no reasonable expectation existed "that unconstitutional practices will recur." Ibid. The court "dismiss[ed] ---------------------------------------- Page Break ---------------------------------------- 6 the case in its entirety," but expressly held that "[a]ll of this court's orders and injunctions as modified heretofore remain in full force and effect." Ibid. The court of appeals affirmed the dismissal, except as it pertained to claims of racial segregation and discrimination. 788 F.2d at 1426. As to those claims, the court remanded to the district court for further proceedings.3 In affirming the dismissal of the remaining claims, the court of appeals observed that (it is unmistakably clear that the orders and injunc- tions protecting the inmates against constitutional violations, as previously modified, were in no way intended to be relaxed and that they remain in full force and effect." Id. at 1428 n.5. The court further noted that "plaintiffs may by further proceedings in the district court seek relief from any violations of those previous orders and injunctions protecting their constitutional rights." Id. at 1429. 3. The present dispute concerning whether the injunctions should be dissolved began in October 1994, when the plaintiff class filed a motion to secure com- pliance with the injunctive orders. 4 Without affording ___________________(footnotes) 3 The district court had dismissed the aspects of the in- junction pertaining to racial segregation, notwithstanding its finding that "[r]acial integration of the occupants of double cells [was] found to be almost non-existent in the Oklahoma prison system." 788 F.2d at 1425. 4 The class had earlier filed a report regarding the status of petitioners' compliance, in which it alleged that various con- ditions and practices within the OSP system violated portions of the extant injunctions. R. 3/8/94. For example, the class con- tended that petitioners were housing 12,234 inmates in facilities designed to accommodate a maximum of 8,905 inmates. Id. at 6-7. The report also averred that petitioners had returned to a pattern of improper disciplinary practices, and alleged a recur- rence of the water, fire-safety, sewage, and food preparation ---------------------------------------- Page Break ---------------------------------------- 7 the class notice or a hearing, the district court denied the motion and, sua sponte, terminated the injunc- tions and its "supervisory jurisdiction" with respect to all areas other than racial segregation. Battle v. Fields, No. 72-95-C (E.D. Okla. Nov. 17, 1994), slip op. 15. In so doing, the court held, inter alia, that over- crowding and other conditions contrary to the court's orders did not violate the Eighth Amendment (slip op. 36-44), and that the OSP system had "reached perma- nent achievement of remedial objectives." Id. at 46. The court of appeals vacated the order and re- manded the case for further proceedings. Battle v. Fields, No. 94-7175, 1995 WL 378436 (10th Cir. June 27, 1995) (59 F.3d 178) (Table). Concluding that the class's motion in the district court was filed pursuant to Federal Rule of Civil Procedure 60(b)(5), the court of appeals held that the district court's summary disposition of the motion and summary dissolution of injunctions without proper notice were a" [f ]ailure to afford due process protections [and, therefore,] con- stitute[d] an abuse of the district court's discretion." 1995 WL 378436, at *1. The court of appeals ordered the district court " [o]n remand, [to] hold a hearing to determine the issues raised by plaintiffs' motions and to determine whether the existing injunctions should be dissolved." Ibid. On remand, the district court directed the parties to brief "the issue of whether or not this court should dissolve the prior injunctions in this case as a matter of law," Pet. App. D2. The court did not, however, hold the evidentiary hearing that the court of appeals had ordered. Ibid. Instead, the court readopted the ___________________(footnotes) hazards that the court had identified in its prior opinions and ordered remedied. 788 F.2d at 7. ---------------------------------------- Page Break ---------------------------------------- 8 findings it made in its November 17, 1994, order, "dissolved] the injunctions and dismissed] this case, except for the Fourteenth Amendment racial segre- gation issue originally remanded to this court in 1986." Id. at B3. On March 29, 1996, the court of appeals again held that the district court had erred in dismissing the injunction without first holding a hearing, and again vacated the district court's order and remanded the case "for a full and fair evidentiary hearing on the plaintiffs' motion to enforce the injunctions and on the defendants' motion * * * to dissolve the injunctions and dismiss the ease." Pet. App. B5-B6. The court of appeals rejected petitioners' contention that the district court's 1983 finding that then- existing prison conditions comported with the Con- stitution required termination of the injunctions. It observed that the district court's 1994 and 1995 orders had recognized the continuing validity of the injunc- tions, and that the court of appeals had "previously affirmed the district court's continuing jurisdiction over this litigation and * * * explicitly recognized the continuing viability of the injunctions entered by the [district] court." Id. at B4-B5. The court of ap- peals also rejected the district court's conclusion that changed legal standards made an evidentiary hearing unnecessary, holding that " [t]o the extent changed legal standards apply, one of the major purposes of a factual presentation is to establish on a point by point basis how such standards do or do not affect the existing injunctions." Id. at B5.5 ___________________(footnotes) 5 Observing that the district court's conclusion that an evidentiary hearing would be futile created "[t]he appearance, ---------------------------------------- Page Break ---------------------------------------- 9 4. On April 26, 1996, the President signed into law the Prison Litigation Reform Act of 1995 (PLRA), Pub. L. No. 104-134, 110 Stat. 1321-66. Section 802(a) of the PLRA amends Section 3626 of Title 18 of the United States Code, and provides for the immediate termination of injunctive relief that was entered in prison-conditions cases without the specified findings (110 Stat. 1321-68): In any civil action with respect to prison condi- tions, 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). Section 802(a) of the Act (110 Stat. 1321-68) also provides, however, that injunctions shall not terminate if the court makes written findings based on the record that prospective relief remains neces- sary 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. ___________________(footnotes) not the fact, of bias," the court of appeals ordered that the case be assigned to a different judge on remand, Pet. App. B6. ---------------------------------------- Page Break ---------------------------------------- 10 18 U.S.C. 3626(b)(3). On June 14, 1996, the district court ordered the parties to address the applicability of the PLRA to the facts of this case. R.3. 5. 0n June 27, 1997, petitioners filed a petition for a writ of certiorari with this Court, seeking review of the court of appeals' March 29, 1996, order. On October 7, 1996, this Court issued a summary order in which it granted the petition, vacated the court of appeals' March 29, 1996, order, and remanded the case for further consideration in light of the PLRA. Pet. App. Cl. 6. On remand, the court of appeals reaffirmed its March 1996 order and judgment, there by reinstating the injunctions in the case. Pet. App. A1-A4. The court instructed that "[I]nitially on remand, the district court should consider the newly enacted Prison Litigation Reform Act" (id. at A3), and it again ordered the district court to hold a prompt hearing on petitioners' motion to dissolve the injunc- tions and on the Battle class's motions to enforce the injunctive decrees. Id. at AL 7. In accordance with those instructions, the dis- trict court ordered the parties to file additional briefs on the applicability and constitutionality of the PLRA, and scheduled evidentiary hearings for December 4,1996. R-. 61. While petitioners contended that the PLRA mandates immediate termination of the injunctions, R. 71, the class respondents chal- lenged the constitutionality of certain PLRA pro- visions pertaining to the termination of relief. The class respondents further argued, in the alternative, that even if the PLRA is constitutional, immediate termination of the injunctions is not required under the terms of the Act. R. 75. The United States con- tended that, while the PLRA is constitutional, it does ---------------------------------------- Page Break ---------------------------------------- 11 not require immediate termination of the injunctions in this case. R. 70, 74. 8. On November 27, 1996, before the district court had ruled on the applicability or constitutionality of the PLRA or held its scheduled hearings, the court of appeals granted petitioners' request that the court recall its mandate "subject to appellees' timely filing of a petition for certiorari" with this Court. R.A. 11/27/96. Accordingly, no further proceedings have occurred in the district court. ARGUMENT 1. a. This Court's October 7, 1996, order remanded this case to the court of appeals for "further consid- eration in light of the Prison Litigation Reform Act of 1996." Pet. App. Cl. The court of appeals, in turn, remanded the case to the district court to conduct that inquiry in the first instance. This Court ordi- narily does not review interlocutory decisions such as the remand for additional proceedings at issue here. See, e.g., Virginia Military Institute v. United States, 113 S. Ct. 2431, 2432 (1993) (opinion of Scalia, J., respecting denial of certiorari); Lawrence v. Chapter, 116 S. Ct. 604,606-607 (1996); Henry v. City of Rock Hill, 376 U.S. 776, 777 (1964); see also R. Stern, E. Gressman & S. Shapiro, Supreme Court Practice 4.18, at 195-198 (7th ed. 1993) ("Ordinarily, in the certiorari context, `this [C]ourt should not issue a writ of certiorari to review a decree of the circuit court of appeals on appeal from an interlocutory order, unless it is necessary to prevent extraordinary inconvenience and embarrassment in the conduct of the cause.") (quoting American Constr. Co. v. Jacksonville, Tampa & Key West Ry., 148 U.S. 372, 384 (1893)). The lack of finality in the judgment below ---------------------------------------- Page Break ---------------------------------------- 12 "of itself alone" provides "sufficient ground for the denial of the [petition]." Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251,258 (1916). b. The court of appeals' decision to remand the case to the district court was correct. Petitioners moved, in the district court, for immediate termina- tion of the extant injunctions under Section 802(a) of the PLRA. That Section provides for the immediate termination of injunctions if they were entered without findings that the relief ordered was "nar- rowly drawn," " extend[ed] no further than necessary" to correct the violation of a federal right, and were the "least intrusive means necessary" to correct the violation. 18 U.S.C. 3626(b) (2).6 A determination whether the findings and injunctions in this ease satisfy those statutory standards is best made in the first instance by the-district court. Here, serious questions remain regarding whether the extant injunctions are subject to termination under Section 3626(b)(2). Throughout the history of this litigation, the district court has made particular- ized findings with respect to the evidence and condi- tions that established each constitutional violation. See e.g., Battle v. Anderson, 447 F. Supp. 516, 524 (E.D. Okla. 1977); Battle v. Anderson, 376 F. Supp. 402,408-428 (E.D. Okla. 1974). In permitting petition- ers to propose their own remedial plans, moreover, the courts below sought to allow them to devise the least intrusive means of correcting those violations. See e.g., Battle v. Anderson, 594 F.2d 786, 793 (10th Cir. 1979); Battle v. Anderson, 564 F.2d 388,392 (10th Cir. 1977). In light of the complex and lengthy ___________________(footnotes) 6 Section 802(a) of the PLRA shall hereinafter be referred to by its Title 18 provisions, Sections 3626(b)(2) and 3626(b)(3). ---------------------------------------- Page Break ---------------------------------------- 13 history of this litigation, the district court should determine, in the first instance, whether the injunc- tions in this case are eligible for termination under Section 3626(b)(2). Even if one assumes, arguendo, that the injunc- tions in this case were not accompanied by Section 3626(b)(2)'s requisite findings, the district court is uniquely suited to determine whether the injunctions should nonetheless continue, pursuant to Section 3626(b)(3). Section 3626(b)(3) provides that injunc- tions in prison-conditions cases shall not terminate "if the court makes written findings based on the record" that the injunctions remain necessary to "correct a current or ongoing violation of a federal right, " "extend[] no further than necessary" to cor- rect the violation of the right, and are "narrowly drawn" and the "least intrusive means" available to correct the violation. That determination requires a fact-intensive inquiry for which a remand to the district court is appropriate. See, e.g., Schlup v. Delo, 115 S. Ct. 851, 869 (1995) ("fact intensive nature of the inquiry, together with the District Court's ability to take testimony" suggests that "the most expeditious procedure" is to remand the case to the district court for further fact finding); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 [1969) ("appellate courts must constantly have in mind that their function is not to decide factual issues de novo'').7 ___________________(footnotes) 7 As noted in the House Judiciary Committee Report on the provisions that ultimately became the PLRA, the "dictates of the provision are not a departure from current jurispru- dence concerning injunctive relief." H.R. Rep. No. 21, 104th Cong., 1st Sess. 24 n.2 (1995) (citing Milliken v. Bradley, 433 U.S. 267, 280 (1977)). Thus, because they are consistent with ---------------------------------------- Page Break ---------------------------------------- 14 c. Petitioners next contend (Pet. 17) that "[t]he law of the case in this litigation is that no violation of a federal right exists." That contention is meritless. In reviewing the district court's 1982 order, the court of appeals, in 1983, observed that the "present condi- tions, as described by the district court, appear con- stitutionally adequate under the standards set forth in Rhodes [v. Chapman, 452 U.S. 337 (1981)]." Battle v. Anderson, 708 F.2d at 1537 (emphasis added). The court further held, however, that the district court should retain jurisdiction over the case "until it has eliminated the constitutional violation `root and branch, '" id. . at 1538 (quoting Green v. County Sch. Bd., 391 U.S. 430, 438 (1968)), and that the district court "should exercise supervisory power over the suit until it can say with assurance not only that eighth amendment violations do not presently exist but that there is no reasonable expectation that unconstitutional conditions will recur." 708 F.2d 1537. The lower courts thus held only that conditions at a particular point in time "appear[ed] constitution- ally adequate," not that the identified constitutional violations had been fully remedied. In its December .30, 1983, order, moreover, the dis- trict court identified four conditions at OSP that failed to comply with its previous orders and that fell below constitutional standards. It found that: (a) racial integration was "virtually non-existent"; (b) "the East and West Cellhouses [of McAlester and Granite Reformatory] [were] still occupied despite their ordered vacation over four years [before];" (c) ___________________(footnotes) existing Article III and prudential limitations on injunctive relief, the injunctions in this case likely fall within the purview of Section 3626(b)(3). ---------------------------------------- Page Break ---------------------------------------- 15 "equal protection guarantees for women inmates [were] inadequate in terms of programs, medical care, and exercise"; and (d) "mandated minimums of ade- quate library facilities had not yet been met." R. 12/30/83, at 6-7. The district court based its 1983 determination that unconstitutional practices were unlikely to recur in OSP on petitioners' commitment to comply with the prior orders, and on the plans that petitioners had recently submitted to remedy the remaining violations, Id. at 9. In light of the foregoing circumstances and the history of this litigation taken as a whole, further fact-finding by the district court is necessary to determine, under Section 3626(b)(3), whether the in- junctions remain necessary to correct ongoing viola- tions of the class respondents' federal rights: 2. Petitioners contend (Pet. 10-15) that the court of appeals' "remand of the case and instruction to the district court to hold an evidentiary hearing goes beyond the subject matter jurisdiction and was extra- jurisdictional." That contention is meritless and does not warrant further review. The district court, in its 1983 decision, expressly held that " [a]ll of [its] orders and injunctions as ___________________(footnotes) 8 Petitioners err in contending (Pet. 1) that the court of appeals' judgment conflicts with Plyler v. Moore, 100 F.3d 365 (1996). In Plyler, the court of appeals affirmed the district court's judgment that the PLRA is constitutional, and that injunctions, entered through a consent decree, should be terminated under Section 3626(b)(2). In this case, the district court has not yet resolved petitioners' motion under Section 3626(b)(2), because the court of appeals granted petitioners' request to stay those proceedings, pending disposition of the instant petition. The decision below is therefore fully consis- tent with Plylor. ---------------------------------------- Page Break ---------------------------------------- 16 modified heretofore remain in full force and effect." R. 12/30/83, at 10. The court of appeals affirmed the district court's decision to continue the injunctions and ordered that "[t]he plaintiffs may by further proceedings in the district court seek relief from any violations of those previous orders and injunctions protecting their constitutional rights." 788 F.2d at 1429. Where, as here, a party alleges violations of an existing injunctive order, the district court clearly possesses jurisdiction to consider that allegation. See, e.g., Board of Educ. v. Dowell, 498 U.S. 237,246, 250 (1991); cf. Hutto v. Finney, 437 U.S. 678, 690 (1978). Nor does jurisdiction automatically dissipate be- cause a court has earlier found that the defendant's affirmative unlawful conduct has ceased. See Dowell, 498 U.S. at 248 (courts' remedial authority extends to, inter alia, remedying the effects of past unlawful conduct); Freernan v. Pitts 503 U.S. 467, 491 (1992) (same); Milliken v. Bradley, 433 U.S. 267, 280-282 (1977) (same); see also United States v. Parke, Davis & Co., 365 U.S. 125, 126 (1961) (ordering district court to "retain the case on the docket for future action in the event the Government applies for further relief from an alleged resumption by [the defendant] of illegal activity" ). 9 ___________________(footnotes) 9 Petitioners characterize the class respondents' claims of noncompliance as "new allegations." Pet. 14. Those claims, however, relate directly to the enforcement of existing injunc- tive provisions regarding overcrowding and other conditions of confinement. R. 10/27/95, 11/9/95. In remanding the case, moreover, the court of appeals provided that "th[e] hearing will be limited to the issues raised by the parties' filings and cannot be used by the [respondents] to expand the present case or, in effect, bring a new action." Pet. App. B6. As a result, ---------------------------------------- Page Break ---------------------------------------- 17 Institutional injunctions are necessarily tempo- rary in nature, having as their ultimate goals both the remediation of unconstitutional conditions and the return of control to state and local officials. Missouri v. Jenkins, 115 S. Ct. 2038, 2049 (1995). Nonetheless, in cases such as this one, in which a court has identified systemic constitutional viola- tions, a court considering the dissolution of existing injunctions must first determine: [1] whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be with- drawn; [2] whether retention of judicial control is necessary or practicable to achieve compli- ance with the decree in other facets of the [institution]; and [3] whether the [defendant] has demonstrated * * * its good-faith commit- ment to the whole of the courts' decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance. Jenkins, 115 S. Ct. at 2049 (quoting Freeman, 503 U.S. at 491); see also Dowell, 498 U.S. at 247 cf. Lewis v. Casey, 116 S. Ct. 2174, 2183 (1996) (applying principles of Jenkins to the prison litigation context). That inquiry is necessarily fact-intensive and re- quires a review of both past conduct and current con- ditions to determine whether injunctions have been fully implemented and followed. Careful factual re- view is particularly important, where, as here, there ___________________(footnotes) there is no risk that the evidentiary hearings ordered by the court of appeals will fall outside of the district court's remedial jurisdiction. ---------------------------------------- Page Break ---------------------------------------- 18 has been a history of noncompliance by the defendant, and the plaintiff class alleges current violations of the injunctions. Contrary to petitioners' contention (Pet. 11), the district court's 1983 decision did not satisfy those standards. In addition to expressly leaving all injunc- tions in effect, Battle v. Anderson, 788 F.2d at 1423, the court made no finding that prison officials had complied with the court's orders to the extent prac- ticable, or that, in the absence of the existing injunc- tions, there was no reasonable probability that consti- tutional violations would recur. 10 3. Finally, petitioners assert (Pet. 1) that the deci- sion below is "in conflict with circuit opinions that require [Federal Rule of Civil Procedure] 65(d) to be strictly construed to * * * prohibit[] contempt hear- ings on alleged violations of injunctions, unless the order granting the injunction sets forth the reasons for its issuance; is specific in terms; described in reasonable detail, and not by reference to the com- plaint or other document" (emphasis deleted). Peti- tioners' argument seems to be that contempt proceed- ___________________(footnotes) 10 Nor was the district court's refusal in 1994 and 1995 to conduct an evidentiary hearing justified by its assertion that "modification of the prior injunctions [would] be necessary to comport with existing caselaw." Pet. App. D3. As the court of appeals observed in its March 29, 1996 order (id. at B4), the effect of changed legal circumstances on an existing injunction cannot be determined without an inquiry regarding present conditions. See generally Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992). Assuming, arguendo, that subsequent judicial decisions altered the law on which the injunctions in this case were predicated, the district court may modify or even eliminate the injunctions accordingly, after conducting the proper factual inquiry ordered by the court of appeals. See Fed. R. Civ. P. 60(b). ---------------------------------------- Page Break ---------------------------------------- 19 ings to enforce the terms of the extant consent de- crees, as modified by the lower courts' subsequent rulings, would violate Rule 65(d). Petitioners first advanced their Rule 65(d) argu- ment before the district court, after the court of appeals' November 7, 1996, order-the order that peti- tioners challenge here. The court of appeals subse- quently stayed the district court's proceedings on the contempt motions, pending disposition by this Court of the instant petition. R.A. 11/27/96. Consequently, neither the district court nor the court of appeals has considered petitioners' contentions under Rule 65(d). Accordingly, they are not open for review in this Court. Heckler v. Campbell, 461 U.S. 458, 468 n.12 (1983); see also Delta Air Lines, Inc. v. August, 450 U.S. 346,362 (1981).11 ___________________(footnotes) 11 In any event, petitioner acknowledges (Pet. 18) that the court of appeals, in Consumer Gas & Oil, Inc. v. Farmland Indus., Inc., 84 F.3d 367 (10th Cir. 1996), adopted a strict reading of Rule 65(d). Petitioner thus alleges, at most, a disagreement within the Tenth Circuit that would not warrant this Court's review. See, e.g., Wisniewski v. United States, 353 Us. 901, 902 (1957). ---------------------------------------- Page Break ---------------------------------------- 20 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General ISABELLE KATZ PINZLER Acting Assistant Attorney General MARK L. GROSS Louis E .PERAERTZ Attorneys MARCH 1997