
    Everett HADIX, Richard Mapes, Patrick C. Sommerville, Roosevelt Hudson, Jr., Brent E. Koster, Lee D. McDonald, Darryl Sturges, Robert Flemster, William Lovett, James Covington, Frank Thomas, James Haddix, James Alexander, Al Buttons, James Chipman, Perry Alan Davis, Michael Anthony Gray, Mark Lemothe, Cylester Nunnally, Ted Rhode, Orvel Simmons, Ted Sullivan, and Mark A. Coleman, Plaintiffs, v. Perry M. JOHNSON, Barry Mintzes, Charles Anderson, William F. Grant, Dale Foltz, Daniel Trudell, Duane Sholes, John Jabe, James Pogats, Roy Rider, Charles Ustess, Don P. Leduc, Robert Brown, Jr., Graham Allen, Elton I. Scott, Pam Withrow, Frank Elo, Marjorie Van Ochten, and John Prelesnik, Defendants.
    File No. 4:92:CV:110.
    United States District Court, W.D. Michigan.
    July 3, 1996.
    
      Michael J. Barnhart, Detroit, MI, for Plaintiffs.
    Susan Przekop-Shaw, Asst. Attorney General, Michigan Dept, of Corrections, Lansing, MI, for Defendants.
   OPINION

ENSLEN, Chief Judge.

This matter is before the Court on defendants’ motion for immediate termination of the Consent Decree, pursuant to the Prison Litigation Reform Act (“PLRA” or “the Act”), Pub.L. No. 104-134, 110 Stat. 1321, amending 18 U.S.C. § 3626, filed June 11, 1996.

Section 802 of the PLRA amends 18 U.S.C. § 3626, regarding appropriate remedies with respect to prison conditions. Section 3626(b) entitles a defendant or intervener in an action involving prison conditions to move for immediate termination of any prospective relief which 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,” unless the court makes such findings in writing as to the current conditions in the prisons subject to the decree. That section also provides for an automatic stay of any prospective relief that has already been approved or granted, beginning the 30th day after a motion for termination of that relief has been filed. The stay is to remain in effect until the court rules on the motion for termination of the relief.

FACTS

The complaint in this action was filed on August 12,1980, and alleged violations of the First, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution. On May 13, 1985, the Honorable John Feikens, of the Eastern District of Michigan, approved a Consent Decree that resolved almost all of the claims. The terms of the Consent Decree involve twelve broad areas, and forty-four specific areas, of prison conditions. The portions of the case involving medical and mental health care and access to the courts were transferred to this Court from the Eastern District of Michigan in 1992 and 1993, respectively.

Over the years, the Court has conducted numerous hearings, and issued numerous orders regarding the rights and duties of the parties under the Consent Decree. Application of the PLRA to the Consent Decree in this case will require the Court to reconsider each provision of the Decree and the associated plans and orders. The Court will have to determine whether, for each aspect of relief the defendants are providing or have been ordered to provide: the relief remains necessary to correct a current or ongoing violation of a Federal right; that any such relief extends no further than necessary to correct the violation of the Federal right; that it is narrowly drawn; and is the least intrusive means to correct the violation.

Such a determination in this case necessarily will involve thorough reviews of the extensive records on the various issues that have been raised, ruled on, and in most cases appealed, over the last eleven years. The parties should be given every opportunity to present their arguments to the Court. A hearing concerning the medical care issues is already scheduled for September 1996, and similar hearings on the remaining issues will also need to be scheduled.

There is no possible way the Court could decide the motion to terminate the Consent Decree by July 10, 1996, when the PLRA provides that an automatic stay of all prospective relief that has been ordered throughout the years pursuant to the Consent Decree, is to take effect. Aside from the complexity of the issues presented, the parties will not even have completed the briefing schedule that is set forth in the Rules by that date.

The automatic stay imposed by the PLRA would suspend many prior rulings in this case which found that the defendants have an obligation under the Consent Decree to provide some form of relief. The imposition of a stay would have a material impact on the status of this case. The scope of that impact, and the automatic process of imposition, raise constitutional issues that must be considered by this Court.

DISCUSSION

The Court ordered the parties to brief the issue of the constitutionality of the automatic stay provision. However, arguments as to the invalidity of the provision that are non-constitutional in nature must be considered first, and the constitutional issues should be addressed only if it is necessary to resolve the matter. Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 2996-97, 86 L.Ed.2d 664 (1985) (“ ‘Prior to reaching any constitutional questions, federal courts must consider non-constitutional grounds for decision.’ ”)

A. Supersession of the Stay Provision

Plaintiffs argue that the automatic stay provision is not yet in force pursuant to the Rules Enabling Act (“REA”), 28 U.S.C. § 2071, et seq. The REA gives the Supreme Court authority to prescribe the rules of practice and procedure to be followed in the federal courts. Section 2072(b) provides that “[a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.” Pursuant to the REA, the Supreme Court adopted what are now known as the Federal Rides of Civil Procedure on December 20,1937.

Plaintiffs argue that the stay provision is in conflict with Rule 60(b), which provides that a motion for relief from judgment should be granted “[o]n motion and upon such terms as are just,” and with Rule 62(b), which provides for a stay on a motion for a new trial or for judgment upon an exercise of discretion by the court. They argue that because the stay provision provides for an automatic, mandatory relief from judgment and a stay of the Court’s orders, it is in conflict with the rules established by the Supreme Court, and thus pursuant to the supersession clause of the REA the provision does not take effect until and unless the Supreme Court amends the Rules.

The flaw in plaintiffs’ arguments is that the stay provision is not in direct conflict with either Rule 60(b) or 62(b). In cases where the supersession clause has been used to prevent the application of a statute, the effect of the statute would be to preclude application of the relevant Rule. See, e.g., Cederbaums v. Harris, 484 F.Supp. 125, 128 (S.D.N.Y.1980) (Rule of Appellate Procedure controls where it provides for a broader definition of “excusable neglect” than the applicable statute); Griffith v. National Labor Relations Board, 545 F.2d 1194, 1197 n. 3 (1976), cert. denied, 434 U.S. 854, 98 S.Ct. 171, 54 L.Ed.2d 125 (1977) (where petition for review could be filed within 60 days after NLRB order under the applicable statute, but within a reasonable amount of time under the interpretation of the Rules of Appellate Procedure, petition filed within 79 days was timely).

Here, however, the Rules of Civil Procedure and the stay provision can coexist. The enforcement of the stay provision-would not affect a court’s authority to grant a relief from judgment or a stay in its discretion. Thus, it can not be said that the stay provision “conflicts irreconcilably” with the Federal Rules of Civil Procedure. See, Henderson v. United States, — U.S. -, -, 116 S.Ct. 1638, 1644, 134 L.Ed.2d 880 (1996).

Having resolved the only nonconstitutional argument for the invalidity of the automatic stay provision, the Court will address the constitutionality of the provision. Arguments that the PLRA is unconstitutional, other than those addressed below, were raised by plaintiffs in their brief. Those arguments apply more generally to the constitutionality of the PLRA as a whole, rather than specifically to the stay provision. Presumably, if those arguments are valid and the PLRA is indeed unconstitutional, the stay provision would be included in such a determination. However, because of the limited scope of the issue presently before the Court, the arguments addressing the constitutionality of the PLRA as a whole will not be addressed herein, and will be considered at a later time.

B. The Stay Provision Encroaches Upon the Powers of the Judiciary

Basic to the constitutional structure established by the Framers was their recognition that “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” The Federalist No. 47, p. 300 (H. Lodge ed 1888) (J. Madison). To ensure against such tyranny, the Framers provided that the Federal Government would consist of three distinct Branches, each to exercise one of the governmental powers recognized by the Framers as inherently distinct.

Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 57, 102 S.Ct. 2858, 2864, 73 L.Ed.2d 598 (1982).

The division among the Branches is preserved by our system of checks and balances. Where Congress passes a provision of law assigning power to one Branch, such that the authority and independence of another Branch is undermined, the provision should be struck down as contrary to the Constitution. Mistretta v. United States, 488 U.S. 361, 382, 109 S.Ct. 647, 660, 102 L.Ed.2d 714 (1989).

The function of the Judiciary is to “say what the law is” and to apply that law to the cases and controversies before it. U.S. Const. Art. III; Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). While Congress maintains authority to determine jurisdiction of the courts it has established, and to establish rules regarding the practice and procedure in the federal courts, the interpretation and application of the laws and the ultimate resolution of cases and controversies are solely within the province of the Judiciary. Id.

The Constitution “commands that the independence of the Judiciary be jealously guarded, and it provides clear institutional protections for that independence.” Northern Pipeline, 458 U.S. at 60, 102 S.Ct. at 2866. When Congress enacts a rule which mandates the outcome of a case, such that the intervening step in which a court interprets and applies the rule on a case-by-case basis is effectively eliminated, Congress encroaches upon that power which has been reserved for the independent Judiciary. United States v. Klein, 80 U.S. (13 Wall.) 128, 20 L.Ed. 519 (1871) (Congress can not “prescribe a rule for the decision of a cause in a particular way.”)

When evaluating acts of Congress under an Article III standard, the court should not take a formalistic approach, but should consider a number of factors “with an eye to the practical effect that the congressional action will have on the constitutionally assigned role of the federal judiciary.” Commodity Futures Trading Commission v. Schor, 478 U.S. 833, 851, 106 S.Ct. 3245, 3257, 92 L.Ed.2d 675 (1986). Among the factors which the Supreme Court has considered include the extent to which the non-Article III forum is exercising jurisdiction and powers that are “essential attributes of judicial power,” the origins and importance of the rights that are at issue, and “the concerns that drove Congress to depart from the requirements of Article III.” Id.

Examining these factors in the instant case, it is clear that through the stay provision of the PLRA, Congress has usurped a role that is exclusively judicial. The power to decide substantive issues of law, such as a motion to terminate the case, is a most basic attribute of the Judiciary’s power under Article III. Through the stay provision, Congress automatically grants the movants relief, albeit temporarily, with no provision for a case-by-ease determination. This is akin to the issuance of a preliminary injunction, which even a court can not do without making a finding on the facts. See, In re DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir.1985) (Before issuing an injunction the court must consider: (1) the likelihood of plaintiffs success on the merits; (2) whether the plaintiff will suffer irreparable harm if an injunction is not issued; (3) whether the injunction would harm others; and (4) whether the injunction would serve the public interest.)

Furthermore, the rights that are at issue in the instant case derive from the most sacred of sources, the Constitution. As noted by the parties, the provisions of the Consent Decree are intended to “assure the constitutionality of the conditions under which the prisoners are incarcerated at SPSM-CC.” Consent Decree, Intro., 13. Unlike statutorily created rights, which Congress can create, modify, define, and terminate, Constitutionally created rights can not be abridged by an act of Congress. Northern Pipeline, 458 U.S. at 83, 102 S.Ct. at 2877-78.

The record does not provide information regarding the concerns which have caused Congress to provide for an automatic stay while the court considers the motion to terminate the Consent Decree. However, one can glean some congressional intent from the comment of one of the sponsors of the PLRA, who explained that its purpose is “to end frivolous lawsuits brought by prisoners, to remove our prisons from the control of Federal judges, and return control over them to our State and local officials.” 142 Cong. Ree. S3703 (daily ed. April 19, 1996). While it is unquestionably true that Congress has the power to prospectively limit the jurisdiction of the federal courts, it is equally true that Congress lacks the power to invade the judicial province in cases and controversies in which the courts have rendered final judgment.

A consideration of the relevant factors leads to the conclusion that, through the stay provision of the PLRA, Congress attempts to perform a judicial function, and has therefore violated the doctrine of the separation of powers.

C. The Stay Provision Alters a Final Judgment of the Court

The stay provision implicates the doctrine of the separation of powers in an additional way, because it alters a final judgment of a judicial court of the United States. The limitations of Congress’ power to alter existing judgments of United States’ courts was recently explained in Plaut v. Spendthrift Farm, Inc., - U.S. -, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995). Therein, the Supreme Court considered a law (Section 476 of the Federal Deposit Insurance Corporation Improvement Act of 1991, 105 Stat. 2236) which “resurrected” previously dismissed cases under Section 10(b)(5) of the Securities Exchange Act of 1934 by imposing less strict limitations periods for such claims. Faced with this scenario, the Supreme Court declared the Act unconstitutional because it retroactively required Article III courts to re-open cases which they had already decided. Id. at -, 115 S.Ct. at 1453.

This conclusion derived from the Plant Court’s understanding that Article III, Section 1 was written, in part, for the express purpose of prohibiting Congress from undoing final judgments of the courts. Id. at -, 115 S.Ct. at 1454-55. This analysis follows from Alexander Hamilton’s own commentary on Article III, Section 1 to the effect that, “A legislature without exceeding its province cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases.” The Federalist No. 81, at 545 (J. Cooke ed. 1961). Hence, under the Plant Court’s analysis, any law which retroactively affects a final judgment of a court of the United States is unconstitutional.

In so holding, the Plant Court limited this rule to final judgments wherein the right to appeal has been exhausted, waived or elapsed. Id. at -, 115 S.Ct. at 1457. Such a holding is consistent with the general understanding of a final judgment as one which resolves all legal issues (except execution) and concerning which the rights of appeal have been either exhausted, waived or have elapsed. Griffith v. Kentucky, 479 U.S. 314, 321 n. 6, 107 S.Ct. 708, 712 n. 6, 93 L.Ed.2d 649 (1987); Johnston v. Cigna Corp., 14 F.3d 486, 489 n. 4 (10th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 1792, 131 L.Ed.2d 720 (1995); Plant v. Spendthrift Farm, Inc., 1 F.3d 1487, 1500 (6th Cir.1993) (Keith, J., concurring), aff'd, - U.S. -, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995).

In the present case, the judgment in question is a Consent Decree relating to prison conditions. According to the Supreme Court,

[a] consent decree no doubt embodies an agreement of the parties and thus in some respects is contractual in nature. But it is an agreement that the parties desire and expect will be reflected in and be enforceable as a judicial decree that is subject to the rules generally applicable to other judgments and decrees.

Rufo v. Inmates of Suffolk Jail, 502 U.S. 367, 378, 112 S.Ct. 748, 757, 116 L.Ed.2d 867 (1992). One of these rules is the rule relating to the finality of judgments. Thus, where appeals have been exhausted or the time for appeal has elapsed or been waived, consent decrees become final judgments. See Firefighters Local Union No. 178f v. Stotts, 467 U.S. 561, 590, 104 S.Ct. 2576, 2594, 81 L.Ed.2d 483 (1984) (Stevens, J., concurring); Vogel v. City of Cincinnati, 959 F.2d 594, 598 (6th Cir.), cert. denied, 506 U.S. 827, 113 S.Ct. 86, 121 L.Ed.2d 49 (1992). In this case, there is little doubt that the Consent Decree has become final by waiver of appeal since it provides that it “constitutes the final judgment and settlement in this matter” as to those issues addressed within.

Defendants’ contention that the Consent Decree is not a final judgment is in error. They cite to Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421, 15 L.Ed. 435 (1855), for the proposition that Congress may modify the prospective effect of injunctive relief ordered by an Article III court. However, in that case the Supreme Court distinguished the situation from those in which an act of Congress affects a final adjudication of the private rights of parties because the right of navigation that was involved was a “public right common to all.” Id. at 431. Constitutional rights, which are the rights involved in the instant case, unlike those in Wheeling & Belmont Bridge, are private. See, Rose v. City of Los Angeles, 814 F.Supp. 878, 881 (C.D.Cal.1993). Furthermore, the fact that a court may alter a final judgment, see Rufo, supra, does not affect the finality of the judgment, nor does it affect the inability of Congress to do so. See, Plant, — U.S. at -, -, 115 S.Ct. at 1455, 1460.

Thus, the question becomes whether the automatic stay provision of the PLRA, which stays the enforcement of the Consent Decree, impermissibly and retroactively modifies a final judgment of the court. The Court finds that, like the statute in Plant, the PLRA renders inoperative existing judgments of this Court. The distinction that it renders existing judgments unenforceable only temporarily is not significant. This only relates to the extent to which the Act imper-missibly modifies existing judgments, not the fact that it operates to do so. Likewise, the fact that the Act depends on the filing of a motion by a litigant does not distinguish this case significantly from Plant. The PLRA invites the very act of filing the motion by promising the suspension of relief without a prior judicial determination. In the same way, the modification of existing judgments involved in Plant would not have been effective without the filing of motions for reinstatement by the plaintiffs. Nevertheless, the Plant Court struck down the law because ‘“the law before us embodies risks of the very sort that our Constitution’s ‘separation of powers’ prohibition seeks to avoid.’ ” Plant, — U.S. at -, 115 S.Ct. at 1463 (quoting Breyer, J., concurring).

As the Supreme Court said in Plant:

[T]he separation of powers is a structural safeguard rather than a remedy to be applied only when specific harm, or risk of specific harm can be identified. In its major features (of which the conclusiveness of judicial judgments is assuredly one) it is a prophylactic device, establishing high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict.

Id. These same high walls prohibit legislation of this type—which has the effect of invalidating final judgments of this or any Court, including the Sixth Circuit Court of Appeals, which has made numerous constitutional rulings on this and other prison cases.

D. The Stay Provision Violates the Due Process Clause

Even assuming the PLRA stay provision did not violate the separation of powers doctrine, it nevertheless violates the vested rights doctrine, which is grounded in the Due Process Clause of the Fifth Amendment.

Congress may not enact a statute which abrogates vested property rights without due process. U.S. Const.Amend. V.; Landgraf v. USI Film Products, 511 U.S. 244, -, 114 S.Ct. 1483, 1497, 128 L.Ed.2d 229 (1994). A judgment that has become final is a type of property right that is subject to this rule. State of Louisiana, ex rel. Folsom v. Mayor and Administrators of the City of New Orleans, 109 U.S. 285, 291, 3 S.Ct. 211, 215-16, 27 L.Ed. 936 (1883) (Bradley, J., concurring) (A judgment “is as much an article of property as anything else that a party owns.”). This doctrine was clearly stated by the Supreme Court in 1898, when it declared:

It is not within the power of a legislature to take away rights which have been once vested by a judgment. Legislation may act on subsequent proceedings, may abate actions pending, but when those actions have passed into judgment the power of the legislature to disturb the rights created thereby ceases.

McCullough v. Virginia, 172 U.S. 102, 123-24, 19 S.Ct. 134, 142, 43 L.Ed. 382 (1898). See also, Hodges v. Snyder, 261 U.S. 600, 603, 43 S.Ct. 435, 436, 67 L.Ed. 819 (1923) (“the private rights of parties which have been vested by the judgment of a court cannot be taken away by subsequent legislation”); Memphis v. United States, 97 U.S. (7 Otto) 293, 296, 24 L.Ed. 920 (1877) (a judgment confers vested rights which are “secure against legislative invasion”).

Due process requires, at the very least, notice and an opportunity to be heard before there is a deprivation of property. Armstrong v. Manzo, 380 U.S. 545, 550, 85 S.Ct. 1187, 1190-91, 14 L.Ed.2d 62 (1965). The determination as to what process is sufficient requires analysis of the private interest that will be affected, the risk of erroneous deprivation through the procedures used, the value of procedural safeguards, and the government’s interest. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).

As explained above, see Section C, supra, the Consent Decree in this action constitutes a final judgment of this Court. Hence, the plaintiffs have a constitutionally protected property right in that consent judgment. See Johnston, 14 F.3d at 492-93. The stay provision of the PLRA takes from plaintiffs their vested right in the judgment, which they have had since 1985, without any process at all. The mere filing of a motion under the PLRA automatically suspends of its own force the operation of a final judgment after 30 days. In light of the clear law prohibiting such abrogations of vested rights, the stay provision can not be found to be constitutional.

CONCLUSION

For the foregoing reasons, this Court finds the stay provision located in § 802 of the Prison Litigation Reform Act, 18 U.S.C. § 3626(e), to be unconstitutional. Therefore, the prospective relief that has been awarded to the plaintiffs pursuant to the Consent Decree of the parties will not be stayed pending this Court’s consideration of the defendants’ motion to terminate the Consent Decree.

ORDER

IT IS HEREBY ORDERED that the automatic stay provided for in the Prison Litigation Reform Act is unconstitutional, and will therefore not take effect pending this Court’s decision on defendants’ motion to terminate the Consent Decree. 
      
      . The issues of the right of prisoners to have independent attorneys provided, classification, and due process, were specifically reserved for submission to the court for resolution after a hearing on the merits. The issue of visitation had been previously dismissed on motion by defendants.
     
      
      . The parties were ordered to submit briefs regarding the issue of the constitutionality of the stay provision. Pursuant to 28 U.S.C. § 2403, which entitles the United States to intervene in any action, suit or proceeding wherein the constitutionality of any Act of Congress affecting the public interest is drawn into question, the United States was given notice and was permitted to intervene. On July 1, 1996, the United States filed a motion for extension of the July 1 deadline for submitting its brief. The Court granted a one-day extension. On July 2, 1996, the Acting Solicitor General, Walter Dellinger, initiated a conference call with the attorneys and this Court to request a further extension. That request was denied, but the Court indicated that if the United States files a brief after this Opinion and Order are issued, it will be considered as a motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure.
     
      
      . There is no doubt that Congress can provide for automatic stays in certain circumstances. See, e.g., 11 U.S.C. § 362 (providing for an automatic stay of proceedings against a debtor when a bankruptcy petition is filed). However, such provisions preserve the status quo pending the court's decision. As noted above, the stay provision in question turns the status quo on its head, by suspending the relief that the plaintiffs have been deemed entitled to during the course of this litigation. In addition, it should be noted that Article I, Section 8, Clause 4 of the Constitution (the bankruptcy clause), when read in light of the history of bankruptcy law, gives Congress special powers to legislate in the area of bankruptcy law.
     