Castillo v. Cameron County, TX

Revised February 7, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-41217
_____________________
JOSE RAUL CASTILLO; FRANCISCO LOPEZ; E ELOY SANCHEZ; JON
ALAN ASHCRAFT; GUSTAVO ALMAGUER
Plaintiffs - Appellees
v.
CAMERON COUNTY, TEXAS
Defendant - Third Party Plaintiff - Appellee
v.
STATE OF TEXAS; GEORGE W BUSH, Governor of Texas; ALLAN B
POLUNSKY, Member of the Board Texas Department of Criminal
Justice; CAROLE S YOUNG, Member of the Board Texas
Department of Criminal Justice; JOHN DAVID FRANZ, Member of
the Board Texas Department of Criminal Justice; PATRICIA A
DAY, Member of the Board Texas Department of Criminal
Justice; WILLIAM “HANK” MOODY, Member of the Board Texas
Department of Criminal Justice; ALFRED C MORAN, Member of
the Board Texas Department of Criminal Justice; NANCY
PATTON, Member of the Board Texas Department of Criminal
Justice; A M “MAC” STRINGFELLOW, Member of the Board Texas
Department of Criminal Justice; CAROL S VANCE, Member of the
Board Texas Department of Criminal Justice
Defendants - Third Party Defendants - Appellants
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
January 5, 2001
Before KING, Chief Judge, PARKER, Circuit Judge, and FURGESON,
District Judge.*
KING, Chief Judge:
Appellants, the State of Texas, et al., appeal from the
district court’s order continuing injunctive relief in favor of
Appellees Jose Raul Castillo, et al. For the following reasons,
we VACATE the district court’s July 20, 1999 order and REMAND
this case to the district court for further proceedings
consistent with this opinion.
I. FACTUAL AND PROCEDURAL HISTORY
This appeal arises from a 42 U.S.C. § 1983 action brought in
1993 by Plaintiffs-Appellees (the “plaintiffs”), a certified
class1 of detainees in the Cameron County, Texas jail (the
“Jail”) against Cameron County (the “County”) and the State of
*
District Judge of the Western District of Texas,
sitting by designation.
1
The suit was originally filed by Jose Raul Castillo,
Francisco Lopez, and Eloy Sanchez. Their motion for class
certification for the class consisting of “All prisoners of the
Cameron County Jail as of 1/3/94” was granted on January 5, 1994.
That class includes both pretrial detainees and convicted
inmates. However, we note that if all prisoners as of January 3,
1994 have since left the jail, that would mean there is no class
member who is entitled to seek injunctive relief. On remand, the
district court should look into the matter of whether, because of
this fact, this case is moot, see Davis v. Ball Mem’l Hosp.
Ass’n., Inc., 753 F.2d 1410, 1416 (7th Cir. 1985) (“When the
claims of all the class members are moot, the action is moot.”).
See generally CHARLES ALAN WRIGHT ET AL., 13A FEDERAL PRACTICE AND
PROCEDURE § 3533.9, at 401 (2d ed. 1984) (“[I]f the claim of the
entire class is moot, the case is finished.”).
2
Texas, the governor of Texas, and various members of the Board of
the Texas Department of Criminal Justice (the “State”).2 The
plaintiffs alleged that overcrowding at the Jail produced
conditions that constituted cruel and unusual punishment in
violation of the Eighth and Fourteenth Amendments of the U.S.
Constitution.
The plaintiffs originally filed suit against only the
County. The County brought a third-party complaint seeking
injunctive relief against the State, alleging that the State
failed to expeditiously transfer nearly 300 “paper ready”
inmates3 to state correctional facilities and, therefore, was
responsible for the constitutional violations. On January 21,
1994, the plaintiffs filed an amended complaint, adding the State
as a defendant, and on May 20, 1994, they filed an application
for a preliminary injunction, in an attempt to remedy the
overcrowding by enjoining the County and the State from
incarcerating more prisoners in the Jail than allowed by the
Texas Jail Standards.
On August 15, 1994, the district court entered a temporary
injunction in favor of the plaintiffs to reduce the jail
2
The State was not brought in to the suit until January
1994.
3
“Paper ready” inmates are those that are certified for
transfer to the institutional division of the Texas Department of
Criminal Justice, but who have yet to be transferred.
3
population (the “August 1994 injunction”).4 Then, on September
14, 1994, the district court entered a memorandum decision and
order, which included a preliminary injunction against the State
and the County (the “September 1994 injunction”).
In its September 1994 injunction, the court made a number of
findings, based on testimony presented at the preliminary
injunction hearing, the documents admitted into evidence, and the
court’s tour of the detention facilities. The court found that
the Jail was overcrowded and that 289 of the detainees were
convicted felons awaiting transfer to state prisons operated by
the Texas Department of Criminal Justice (“TDCJ”). The court
also found that, at that point in time, TDCJ had a scheduled
admissions policy that had caused a backlog of convicted inmates
to accumulate in the Jail.5 As a result of this significant
overcrowding, over thirty percent of the detainees slept on
mattresses on the floor each night. Additionally, fighting
4
The August 1994 injunction was amended on October 2,
1997, and it is that amended version that is at issue in this
proceeding.
5
The Jail, at the time of the issuance of the September
1994 injunction, was designed to hold 546 people. However, under
jail standards and management practices, counties typically limit
occupancy to 85% of design capacity, which, the court stated, in
this case, would have been 467 detainees, significantly less than
the 862 detainees housed in the Jail at the time.
We note that an additional facility designed to hold 192
detainees was within weeks of completion at the time of the
hearing on the September 1994 injunction, and, during oral
argument on this appeal, the County announced that construction
had begun on a new facility designed to hold an additional 641
people.
4
requiring medical attention increased. The court also found the
medical care received by the inmates to be “alarming” as the
County based its medical-care budget on a 500-person average
occupancy, rather than the actual occupancy.6 Furthermore,
overcrowding limited the attempts by county officials to classify
detainees according to dangerousness and to adequately segregate
mentally ill detainees, witnesses, and pretrial detainees.
The classification that has been possible has lead
[sic] to severe overcrowding in some cells. For
example, 30 detainees have been forced into a cell
designed for 10 and held there three months, where the
cell did not have water, a toilet, or a shower. Six
detainees have been forced into a holding cell designed
for two, leaving at least two of these people with no
choice but to stand all day.7
6
The court found that, since medicine was unavailable,
diabetics were treated with diet, other necessary drugs were also
unavailable, and no funds for medical screening for HIV-positive
people were allocated. One expert testified that there existed a
substantial risk of a tuberculosis epidemic at the time of the
hearing.
7
These findings established to the district court’s
satisfaction the substantial likelihood that the plaintiffs could
prove a constitutional violation. The court also found
sufficient evidence to show a substantial likelihood that the
plaintiffs could prove the required “deliberate indifference” on
the part of the State and the County. The court found that
overall, these elements established a substantial likelihood that
the plaintiffs would succeed on the merits of their claim.
The court also found that the three other elements necessary
to grant a preliminary injunction had been satisfied, namely a
substantial threat that the movant will suffer irreparable
injury, that the threatened injury outweighs any damage the
injunction may cause the opponent, and that the injunction will
not disserve the public interest. See United Offshore Co. v. S.
Deepwater Pipeline Co., 899 F.2d 405, 407-08 (5th Cir. 1990).
5
Under the terms of the September 1994 injunction, the State
was required to “remove the number of state-ready felons from the
custody of Cameron County officials” necessary to bring the
Jail’s population within design capacity or prove that
constitutional conditions would be preserved if the Jail
contained more prisoners than it was designed to hold.8 The
September 1994 injunction also required the County to adopt an
operation plan describing how the County would provide for the
Jail’s needs six months in the future and two years in the
future, to evaluate and revise those plans on an annual basis,
and to submit them to the district court.
On October 2, 1997, the district court amended the August
1994 injunction (“1997 injunction”). The 1997 injunction lists,
inter alia, a number of actions intended to reduce the jail
population9 and a number of Population Reduction Provisions that
the Cameron County sheriff can make to keep the prison population
8
The court also indicated its willingness to modify the
injunction should the State present evidence that the Jail might
hold more than its design capacity of detainees under
constitutional conditions or should the plaintiffs present
evidence that a population cap of design capacity still subjected
them to unconstitutional conditions.
9
For example, the injunction prohibits the Jail from
accepting individuals charged with misdemeanors from other
nonfederal agencies, unless, for warrantless arrests, the
detainee’s commitment papers include an order in a specified form
finding probable cause or, for warrant arrests, the detainee’s
commitment papers include a copy of the executed arrest warrant.
The injunction also covers treatment of persons accused of
felonies from other nonfederal agencies and persons arrested by
the sheriff’s office.
6
from surpassing ninety percent of its design capacity.
Specifically, the injunction dictates that “if at any time the
population of the Cameron County Jail exceeds ninety per cent of
the design capacity . . . for such jail, the Sheriff of Cameron
County is ORDERED to, and shall, in addition to any other actions
he may deem appropriate, take such of the following [Population
Reduction Provisions] he may see fit in order to reduce jail
population . . . .” For example, one of the Population Reduction
Provisions permits the sheriff to “refuse to receive for pre-
hearing confinement from state pardon and parole officers any
‘blue warrant’ person charged with a parole violation.”10
Similarly, “the Sheriff may notify the Department of Pardons and
Parole that the ‘blue warrant’ inmates will be released after
they have been held for forty-five days unless a [‘]white
warrant’ has issued.”11 Although the 1997 injunction was issued
while the State was still a party to the proceedings, it did not
require the State to take any particular action, only the County.
Pursuant to the 1997 injunction, the Cameron County sheriff
10
A “blue warrant” person “means a person arrested for a
parole violation who is to be detained pending administrative
process and revocation hearing.” Other Population Reduction
Provisions include arrangements for alternative housing or for
“scheduled reporting,” refusal to take from any law enforcement
officers any person charged with a non-violent misdemeanor or
felony, release of misdemeanor detainees on bond, and release of
non-violent pretrial detainees upon application to a judge of a
court of competent jurisdiction.
11
A “white warrant” person means a person detained after
revocation of parole.
7
refused to incarcerate a number of “blue warrant” parole
violators.12
On April 26, 1996, the Prison Litigation Reform Act (the
“PLRA”), which “establishes standards for the entry and
termination of prospective relief in civil actions challenging
prison conditions,” went into effect. See Miller v. French, 120
S. Ct. 2246, 2250 (2000); see also Pub. L. No. 104-134, 110 Stat.
1321-66 (1996). On May 3, 1999, pursuant to the PLRA, the State
filed a motion to terminate the September 1994 injunction. The
State argued that immediate termination of the preliminary
injunction was warranted because the PLRA requires termination of
prospective relief entered without making certain specific
findings, which the district court had not made when it issued
the September 1994 injunction. See 18 U.S.C. § 3626(b)(2).
Alternatively, the State asserted that the September 1994
injunction must be terminated because the PLRA mandates
termination of prospective relief upon the motion of any party or
intervener two years after the date the court granted or approved
the prospective relief or two years after the enactment date of
the PLRA. See id. § 3626(b)(1).
On May 21, 1999, the district court held a status
conference. The parties agreed that the September 1994
injunction against the State was no longer necessary, as the
12
The parties stipulated that by July 27, 1999, there
were at least 289 individuals who had outstanding blue warrants.
8
State had transferred the “paper ready” prisoners to state
facilities. Because the State had complied with the September
1994 injunction, the parties also discussed dismissing the State
as a party. Moreover, the district court indicated that it was
inclined to turn the 1997 temporary injunction against the County
into a permanent injunction. The County proposed an order so
doing, to which the State objected. Specifically, the State
objected to a provision in the order that permitted the Cameron
County sheriff to continue to refuse to incarcerate alleged
parole violators in order to limit the number of prisoners in the
Jail. The State contended that this provision violated the PLRA,
which prohibits federal courts from ordering prospective relief
that violates state law.
On May 27, 1999, the district court entered an order
extending the September 1994 injunction for another sixty days so
that the plaintiffs and the County could finalize a consent
decree. During those sixty days, on June 28, 1999, the State
filed an “advisory,” reiterating its objection to continuing the
temporary injunctive relief embodied in the 1997 injunction as
violative of the PLRA. The State argued, inter alia, that the
1997 injunction constituted a prisoner release order, which,
under the PLRA, can only be entered by a three-judge panel that
is required to make specific findings, see id. § 3626(a)(3), and
that order authorized the Cameron County sheriff to violate state
law, action which is also governed by the PLRA. See id.
9
§ 3626(a)(1)(B).
On July 27, 1999, the district court held another status
conference (“July 27 hearing”) that addressed the September 1994
injunction, the 1997 injunction, and the dismissal of the State
as a party to the proceedings. The State argued that the
district court should terminate the September 1994 injunction
because it did not contain the findings required by the PLRA for
the granting of prospective relief, a requirement that was to be
applied retroactively. The County agreed that the September 1994
injunction should be terminated, but the plaintiffs argued that
the injunction should be continued to prevent the State from
again overcrowding the Jail.
In regard to the 1997 injunction, the State objected that it
also violated the PLRA, in that the court had not made the proper
findings when granting the relief and, also, that it constituted
a prisoner release order, which, under the PLRA, may only be
issued by a three-judge panel. See 18 U.S.C. § 3626(a)(3)(B).
The County and the plaintiffs contended that the 1997 injunction
should be continued and that the court had made the requisite
findings.
Finally, all three parties agreed that the State should be
dismissed as a party. However, the State wanted a proviso that
it was still concerned about the sheriff’s ability to refuse to
incarcerate blue warrant violators.
10
The district court entered a minute order on July 27, 1999,
dismissing the State from the lawsuit. On July 30, 1999, the
district court entered an order (the “1999 order”) denying the
State’s motion to terminate and continuing both the September
1994 injunction and “all other preliminary injunctive relief
granted by this Court.” In making its determination, the court
considered all of the arguments made at the July 27 hearing, the
stipulation made by all parties that there were at least 289 blue
warrants in the County and that the Jail would be well over 100%
capacity if those 289 persons were incarcerated, an affidavit
filed by Captain Luis Esparza,13 and the stipulation filed by the
County and the plaintiffs on July 29, 1999.14 Additionally, the
district court took judicial notice “of all evidence previously
presented in this case.”
13
In his affidavit, Esparza, who has been the Captain of
the Jail since April 15, 1999, states the following facts: (1)the
capacity of the Jail is 738 inmates; (2) as of July 28, 1999 the
population of the Jail was 662 inmates, which included 17 blue
warrants and 8 white warrants; (3) the 662 inmates includes 515
state inmates and 147 federal inmates; (4) the [October 1997
injunction] has been necessary to keep jail population from
overcrowding; and (5) the Jail has been at or about 90% of
capacity for the past couple of years and that “[w]ithout the
ability to refuse new non violent [sic] inmates when we are
approaching or at 90% of capacity we would exceed capacity within
one week and would have over one thousand inmates within one
month.”
14
The plaintiffs and the County stipulated to the facts
in the affidavit of Luis Esparza. We note that the State did not
so stipulate.
11
At the time the district court issued the 1999 order, it
also purported to make the findings required by the PLRA to limit
the termination of relief otherwise subject to termination. The
order provided:
In making this decision, the Court specifically finds
that, without the continuation of the temporary
injunction, the Cameron County Jail population would
almost immediately exceed 100% and thereby created
[sic] Constitutionally prohibited jail conditions. The
Court specifically finds that prospective relief,
including the continuation of the temporary injunction,
remains necessary to correct and prevent a current and
ongoing violation of the Class Plaintiffs’ Federal
Constitutional rights, that the temporary injunction
extends no further than necessary to correct the
violation of the Class Plaintiffs’ Constitutional
rights, and that the temporary injunction is narrowly
drawn and is the least intrusive means to correct the
violation.
The State timely appeals the 1999 order.15
II. STANDARD OF REVIEW
Standing is reviewed under a de novo standard. See Tex.
Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 419 n.34 (5th
Cir. 1999) (citing 5 U.S.C. § 706). Although the district
court’s decision to continue the injunctions is to be reviewed
for an abuse of discretion, see Alcatel USA, Inc. v. DGI Techs.,
Inc., 166 F.3d 772, 790 (5th Cir. 1999), because the district
court’s decision to terminate or continue the injunctions turns
on the application of § 3626(b) of the PLRA, that interpretation
15
The County does not appeal the 1999 order.
12
is reviewed de novo. See Woodfield v. Bowman, 193 F.3d 354, 358
(5th Cir. 1999).
The application of the relevant sections of the PLRA
requires the district court to make a finding of an ongoing
constitutional violation, which is a mixed question of law and
fact. See Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649,
661 (1st Cir. 1997), cert. denied, 524 U.S. 951 (1998). We
review mixed questions of law and fact de novo. See Cargill,
Inc. v. United States, 173 F.3d 323, 333 n.13 (5th Cir. 1999).
III. STANDING
As a threshold matter, we must determine whether the State
has standing to pursue this appeal. The plaintiffs argue that
the State lacks standing to appeal the 1999 order because it is
no longer a party to the action and, therefore, is no longer
bound by or required to take any action in regard to the
injunctions. Recognizing that, in some cases, a nonparty has
standing to appeal an injunction that affects it, the plaintiffs
contend that the injunction did not require the State to take any
particular action or cause the State to suffer any injury, and,
therefore, did not affect the State. Alternatively, the
plaintiffs argue that, even if the State is bound by the
injunction, the State has no standing to appeal to set aside the
injunctive provisions against the County, a co-party that did not
appeal.
13
The State argues that it has standing because the PLRA
expressly gives it standing to challenge this type of prospective
relief. Additionally, it contends that, even as a nonparty, it
has standing to appeal an injunction that adversely affects it.
We agree.
A. Standing Under the PLRA
The PLRA expressly provides for standing for certain
officials and units of government. As § 3626 (a)(3)(F) of the
PLRA provides:
Any State or local official including a legislator or
unit of government whose jurisdiction or function
includes the appropriation of funds for the
construction, operation, or maintenance of prison
facilities, or the prosecution or custody of persons
who may be released from, or not admitted to, a prison
as a result of a prisoner release order shall have
standing to oppose the imposition or continuation in
effect of such relief and to seek termination of such
relief, and shall have the right to intervene in any
proceeding relating to such relief.
18 U.S.C. § 3626(a)(3)(F) (2000) (emphasis added). The PLRA then
defines a “prisoner release order” to “include[] any order,
including a temporary restraining order or preliminary injunctive
relief, that has the purpose or effect of reducing or limiting
the prison population, or that directs the release from or
nonadmission of prisoners to a prison.” Id. § 3626(g)(4).
Therefore, if the 1999 order (which, as noted above, expressly
continues the September 1994 injunction and “all other temporary
injunctive relief currently in effect”) fits within the
14
definition of a prisoner release order, the statute gives the
State both standing and the right to seek its termination or
oppose its continuation.
The first question we must answer, then, is whether the
injunctions contained or continued in the 1999 order are prisoner
release orders. We find that they are. The September 1994
injunction requires the State to “adopt and implement the
policies necessary to remove the number of state-ready felons
from the custody of Cameron County officials that is necessary to
ensure that Cameron County’s detention facilities are not
populated above design capacity.” Similarly, the October 1997
injunction orders the Sheriff of Cameron County, “if at any time
the population of Cameron County Jail exceeds ninety per cent of
the design capacity,” to “take such of the following actions he
may see fit in order to reduce jail population.” Both of these
injunctions cap the prison population at a particular number of
detainees, which has the “purpose or effect of reducing or
limiting the prison population.”
These types of “population caps” have consistently been
found to meet the definition of a prisoner release order. See
Ruiz v. Estelle, 161 F.3d 814, 825-27 (5th Cir. 1998) (finding
final judgment that set specific population limits on number of
prisoners allowed to be housed in various prisons to be a
prisoner release order), cert. denied, 526 U.S. 1158 (1999); see
also Tyler v. Murphy, 135 F.3d 594, 596 (8th Cir. 1998) (holding
15
that twenty-person cap on probation detainees in a particular
prison was a prisoner release order). In fact, a review of the
legislative history of the PLRA reveals that it was precisely
these types of caps that the statute was created to address.
See 141 CONG. REC. S14413-14414 (daily ed. Sept. 27, 1995)
(statement of Sen. Dole)(“Perhaps the most pernicious form of
judicial micromanagement is the so-called prison population
cap.”).
The September 1994 injunction requires the State to adopt
policies that will keep the population of the Jail at design
capacity. The October 1997 injunction requires the sheriff to
keep the prison at or below ninety-percent capacity. We
therefore find that these injunctions are prisoner release orders
as defined by the PLRA, and therefore, under the PLRA, the State
has the right “to oppose the imposition or continuation in effect
of such relief and to seek termination of such relief.” 18
U.S.C. § 3626(a)(3)(F).
B. Nonparty Standing to Appeal
In addition to this express statutory grant of standing, we
also find that the State possesses sufficient interest in the
litigation to qualify for nonparty standing to appeal. The
plaintiffs argue that the State, as a nonparty, lacks standing to
appeal the 1999 order because the State is no longer a party to
the lawsuit and because the State was not bound or otherwise
16
injured by the injunctions continued in the 1999 order. The
State contends that, even as a nonparty, it has standing to
appeal the order because it adversely affects its interests. We
agree.
Plaintiffs correctly assert the general rule that nonparties
cannot appeal the court’s judgment. See Marino v. Ortiz, 484
U.S. 301, 304 (1988) (“The rule that only parties to a lawsuit,
or those that properly become parties, may appeal an adverse
judgment, is well-settled.”). However, that rule has not been
rigidly adhered to; a nonparty may be allowed to appeal if the
decree affects his interests. As we stated in United States v.
Chagra:
“[I]f the decree affects [a third party’s] interests,
he is often allowed to appeal.” . . . Thus, a non-party
may appeal orders for discovery if he has no other
effective means of obtaining review. Similarly non-
parties have been allowed to appeal orders granting or
denying further disclosure of documents already in the
possession of a court or grand jury. Non-party
creditors who assert rights in receivership proceedings
may appeal orders affecting their legitimate interests.
If an injunction extends to non-parties, they may
appeal from it.
701 F.2d 354, 358-59 (5th Cir. 1983) (alterations in original)
(footnotes and citation omitted); see also United States v.
Kirschenbaum, 156 F.3d 784, 794 (7th Cir. 1998) (“[N]on-parties
who are bound by a court’s equitable decrees have a right to move
to have the order dissolved, . . . and other circuits have held
that where a non-party is purportedly bound by an injunction, the
non-party may bring an appeal rather than face the possibility of
17
a contempt proceeding.”); In re Estate of Ferdinand Marcos Human
Rights Litig., 94 F.3d 539, 544 (9th Cir. 1996) (finding standing
for nonparty where injunction confronted nonparty “with the
choice of either conforming its conduct to the dictates of the
injunction or ignoring the injunction and risking contempt
proceedings”); In re Piper Funds, Inc., Institutional Gov’t
Income Portfolio Litig., 71 F.3d 298, 301 (8th Cir. 1995) (“A
nonparty normally has standing to appeal when it is adversely
affected by an injunction.”). However, allowing nonparties to
appeal a court’s judgment is still a rare exception to the
general rule.
In order to determine if a nonparty may properly appeal,
this court has adopted a three-part test,16 analyzing “whether
16
This test addresses the prudential concerns relevant to
a standing analysis, as opposed to the constitutional
considerations of Article III. See United States v. McVeigh, 106
F.3d 325, 334 n.7 (10th Cir. 1997) (“Article III authority is a
prerequisite to judicial review, however sought. In contrast, a
prudential concern, such as nonparty status, counseling uniquely
or primarily against the propriety of appeal, need not bar a
petition for mandamus review.”). It is unclear if the plaintiffs
have argued that the State lacks Article III standing; however
objections to standing may be raised by an appellate court sua
sponte. See Lang v. French, 154 F.3d 217, 222 n.28 (5th Cir.
1998). “To have standing a plaintiff must establish three
elements: ‘[T]he plaintiff must show that it has suffered an
injury in fact, the plaintiff must establish causation[, and]
there must be redressability.’” Pederson v. La. State Univ., 213
F.3d 858, 869 (5th Cir. 2000). We find the injury in fact
requirement to be satisfied in this instance by the same facts
that demonstrate the State has a “personal stake in the outcome,”
analyzed below. Additionally, we find the causation and
redressability requirements to be satisfied because the
injunctions precipitated the violations and their termination
will end them.
18
‘the non-parties actually participated in the proceedings below,
the equities weigh in favor of hearing the appeal, and the non-
parties have a personal stake in the outcome.’” Searcy v.
Philips Elecs. N. Am. Corp., 117 F.3d 154, 157 (5th Cir. 1997);
EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1442-43 (5th
Cir. 1995); see also Commodity Futures Trading Comm’n v. Topworth
Int’l, Ltd., 205 F.3d 1107, 1113 (9th Cir. 1999) (stating that a
nonparty to the litigation on the merits will have standing to
appeal the decision when the party participated in the
proceedings and the equities favor hearing the appeal); Davis v.
Scott, 176 F.3d 805, 807 (4th Cir. 1999); Krebs Chrysler-
Plymouth, Inc. v. Valley Motors, Inc., 141 F.3d 490, 496 (3d Cir.
1998); Binker v. Commonwealth of Pa., 977 F.2d 738, 745 (3d Cir.
1992).
We find that under this standard, the State is permitted to
appeal the continuance of the injunctions. First, there can be
no question in this instance that the State has been an active
participant in the proceedings. From the time the plaintiffs
first amended their complaint to just two days before the
continuance of the injunctions, the State was a named party to
the proceedings. In fact, the State brought the very motion that
was denied in the order that is being appealed.
Second, the equities weigh in favor of allowing the State to
appeal. Given that the PLRA itself gives the State the right to
seek the termination of injunctive relief, it seems unjust to
19
deny them standing to appeal the denial of that termination.17
Similarly, as the State filed the original motion to terminate
the injunctions, and maintained that position at the July 30
hearing, we find it unfair to continue the injunctions without
permitting the State to appeal the continuation. Therefore, we
conclude that the equities of the situation weigh in favor of
allowing the State to appeal.
Under the third prong, the State must show it has a personal
stake in the outcome.18 We find that it does. First, the
State’s economic interests are implicated. Although the State
had been dismissed as a party, prior to the 1999 order continuing
the injunctions, no changes were made to the September 1994
injunction itself, which requires the State to remove paper-ready
prisoners within forty-five days. In Loyd v. Alabama Department
of Corrections, 176 F.3d 1336, 1341 (11th Cir.), cert. denied,
120 S. Ct. 613 (1999), the Eleventh Circuit held that requiring
17
This is similar to a result we reached in Searcy. In
Searcy, the court found that because Congress granted the
government the right to withhold consent to voluntary
settlements, “it would be odd to preclude appellate remedies
based on the government’s failure to intervene.” Searcy, 117
F.3d at 157.
18
As an example, in Searcy, this court found this prong
satisfied by a settlement stretching to “‘all claims and
counterclaims asserted in any pleading or other filing in this
action . . . arising out of the transactions and occurrences that
are the subject matter of this action.’” Searcy, 117 F.3d at
157. The court determined that the order could arguably be
interpreted to include the government for claim preclusion
purposes, which gave the government a stake in the outcome. Id.
at 158.
20
the state to transfer prisoners from county to state jails within
a specified period of time impacts the economic interests of the
state because it must have facilities available for the transfer.
We agree. Second, should the State violate the September 1994
injunction it risks being found in civil contempt. “‘A party
commits contempt when he violates a definite and specific order
of the court requiring him to perform or refrain from performing
a particular act or acts with knowledge of the court’s order.’”
Travelhost, Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir. 1995)
(citing SEC v. First Fin. Group of Tex., Inc., 659 F.2d 660, 669
(5th Cir. 1981). As the State was a party to the proceedings
when the September 1994 injunction was originally issued, it
could reasonably believe itself at risk of civil contempt if it
violated the injunction, regardless of whether it has since been
dismissed as a party. Therefore, the State has a sufficient
personal stake in the outcome to challenge the continuation of
the September 1994 injunction.
In regard to the October 1997 injunction, even though the
State is not required to perform or refrain from performing any
particular acts by the its terms, we find the State’s sovereign
and quasi-sovereign interests to be implicated. First, the
October 1997 injunction allows the sheriff, in violation of state
law, to refuse to incarcerate state parole violators for whom
blue warrants have been issued. The State has a sovereign
interest in enforcing its laws. See Alfred L. Snapp & Son, Inc.
21
v. Puerto Rico, 458 U.S. 592, 601-02 (1982) (“Two sovereign
interests are easily identified: First, the exercise of sovereign
power over individuals and entities within the relevant
jurisdiction——this involves the power to create and enforce a
legal code, both civil and criminal.”); Tex. Office of Pub. Util.
Counsel v. FCC, 183 F.3d 393, 449 (5th Cir. 1999) (“[S]tates have
a sovereign interest in ‘the power to create and enforce a legal
code.’”) (citing Snapp, 458 U.S. at 601). Because the State has
a sovereign interest in enforcing its laws, it has a personal
stake in appealing the October 1997 injunction that gives the
County discretion to violate those laws.
Second, all of the parties stipulated that there were 289
blue warrant violators who, but for the injunction, would be
required under state law to be housed in the Jail. This
implicates the State’s quasi-sovereign interest in protecting its
citizens from criminal activity. See Snapp, 458 U.S. at 602(“Quasi-sovereign interests stand apart from [sovereign
interests, proprietary interests, or private interests pursued by
the State as a nominal party] . . . . They consist of a set of
interests that the State has in the well-being of its
populace.”). While we recognize that the concept of quasi-
sovereign standing “risks being too vague to survive the standing
requirements of Article III,” id. at 602, we find the State’s
interest at issue here falls within the category of “a quasi-
sovereign interest in the health and well-being——both physical
22
and economic——of its residents in general.” Id. at 607. As a
result of this injunction, parole violators who should be
incarcerated remain free, potentially increasing the level of
criminal activity. The State has a legitimate interest in
“protect[ing] its citizens from criminal elements.” Nat’l
People’s Action v. Village of Wilmette, 914 F.2d 1008, 1011 (7th
Cir. 1990) (citing Hynes v. Mayor & Council of Borough of
Oradell, 425 U.S. 610, 618 (1976)). This quasi-sovereign
interest also gives the State a personal stake in the outcome of
the appeal.
For the reasons stated above, we find the State satisfies
the three-part standard set out in Searcy and, therefore, has
standing to appeal the 1999 order.
IV. TERMINATION OF RELIEF UNDER § 3626(b)
The PLRA “establishes standards for the entry and
termination of prospective relief in civil actions challenging
prison conditions.” Miller v. French, 120 S. Ct. 2246, 2250
(2000). The PLRA both “narrowly limits the relief a court may
order in prisoner suits,” Ruiz v. Estelle, 161 F.3d 814, 817
(1998), cert. denied, 526 U.S. 1158 (1999), and “authorizes the
termination of existing prospective relief that does not comply
with these limits.” Id.23
Regarding termination of prospective relief,19 the PLRA
distinguishes between immediately terminable relief and relief
that is terminable after a specified period of time has passed.
The requirements for the former are set out in § 3626(b)(2):
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.
Id. § 3626(b)(2). The requirements for the latter are set out in
§ 3626(b)(1):
(A) In any civil action with respect to prison
conditions in which prospective relief is ordered, such
relief shall be terminable upon the motion of any party
or intervener——
(i) 2 years after the date the court granted or
approved the prospective relief;
(ii) 1 year after the date the court has entered
an order denying termination of prospective relief
under this paragraph; or
(iii) in the case of an order issued on or before
the date of enactment of the Prison Litigation
Reform Act, 2 years after such date of enactment.
Id. § 3626(b)(1). However, both of these termination provisions
are subject to the limitation of § 3626(b)(3), which provides
that
Prospective relief shall not terminate if the court
makes written findings based on the record that
19
The PLRA defines “prospective relief” as “all relief
other than compensatory monetary damages.” 18 U.S.C.
§ 3626(g)(7). The relief contained in the injunctions is,
therefore, considered prospective relief.
24
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).
To determine whether the district court erred in its
decision to continue the September 1994 injunction and the 1997
injunction, we must first ascertain if the injunctions were
terminable under either § 3626(b)(1) or § 3626(b)(2) and, if so,
decide whether the requirements to continue the relief mandated
by § 3626(b)(3) were met.
A. The Injunctions Are Terminable Under § 3626(b)(1)
The State contends that both the September 1994 injunction
and the 1997 injunction were entered without the findings
required by § 3626(b)(2) and that, therefore, it is entitled to
immediate termination of the prospective relief. Additionally,
it argues that it is entitled to termination under § 3626(b)(1),
because more than two years have elapsed since the district court
granted the prospective relief. Therefore, the State asserts
that the district court erred in refusing to terminate the
injunctions because it was required to do so, unless the court
made the written findings based on the record required by
§ 3626(b)(3), which it did not do. Specifically, the State
claims that the record does not support the court’s finding that
25
the injunctions (1) were necessary to remedy a “current and
ongoing” violation of a federal right, (2) were narrowly drawn,
and (3) were the least intrusive means necessary to correct the
violation of the federal right (the “§ 3626(b)(3) findings”).
The plaintiffs assert that not only were the § 3626(b)(2)
findings made when the district court granted the September 1994
injunction and the 1997 injunction, but that, even if they were
not, the district court, in its 1999 order, made the § 3626(b)(3)
findings that allow the court to continue the relief.
We need not determine whether it was necessary for the
district court to expressly make the § 3626(b)(2) findings or if
the findings may be implied from the court’s judgment because we
find that both the September 1994 injunction and the 1997
injunction fall squarely within the termination provision of
§ 3626(b)(1)(iii) as more than two years have passed since the
enactment of the PLRA. Even though the injunctions at issue were
granted prior to the enactment of the PLRA, the termination
provisions of § 3626(b)(1) still apply. When enacting the PLRA,
Congress specifically provided that “‘[Section 3626] shall apply
with respect to all prospective relief whether such relief was
originally granted or approved before, on, or after the date of
the enactment of this title.’” Martin v. Hadix, 527 U.S. 343,
355 (1999) (alteration in original) (quoting § 802(b)(1), note
following 18 U.S.C. § 3626 (1994 ed., Supp. III)). Additionally,
the provision itself provides that “in the case of an order
26
issued on or before the date of enactment of the Prison
Litigation Reform Act, [such relief shall be terminable upon the
motion of any party or intervener] 2 years after such date of
enactment.” 18 U.S.C. § 3626(b)(1)(iii). The PLRA was enacted
on April 26, 1996, and the State, at the time a party to the
proceeding, filed its motion for termination on May 3, 1999, more
than three years later. Therefore, the relief is terminable
unless the findings set out in § 3626(b)(3) are made.
B. The Record Inadequately Supports the District Court’s Need-
Narrowness Findings
Section 3626(b)(3) provides that prospective relief will not
terminate if the court “makes written findings based on the
record” that (1) “prospective relief remains necessary to correct
a current and ongoing violation of the Federal right,” (2)
“extends no further than necessary to correct the violation of
the Federal right,” and (3) “that the prospective relief is
narrowly drawn and the least intrusive means to correct the
violation.” 18 U.S.C. § 3626(b)(3).
We first note that a “current and ongoing” violation is one
that “exists at the time the district court conducts the
§ 3626(b)(3) inquiry.” Cason v. Seckinger, 231 F.3d 777, 784
(11th Cir. 2000); see also Hadix v. Johnson, 228 F.3d 662 (6th
Cir. 2000)(stating that “the PLRA directs a district court to
look to current conditions”); Benjamin v. Jacobson, 172 F.3d 144,
27
166 (2d Cir. 1999) (“Evidence presented at a prior time, however,
could not show a violation that is ‘current and ongoing.’ Hence,
the ‘record’ referred to cannot mean the prior record but must
mean a record reflecting conditions at the time termination is
sought.”); Imprisoned Citizens Union v. Ridge, 169 F.3d 178, 190
(3d Cir. 1999) (“Mere speculation that Defendants might refuse to
honor alleged contractual obligations is insufficient to support
a finding of ‘current and ongoing violations of [a] Federal
right.’” (alteration in original)).20
20
Although the Eleventh Circuit in Parrish v. Alabama
Department of Corrections, 156 F.3d 1128, 1129 (11th Cir. 1998)
questioned whether an interpretation that “because no
constitutional violations exist at the jail right now, no
‘current and ongoing’ violation can exist” was incorrect because
“it could blind courts to violations of federal rights that a
court might reasonably expect to recur soon if the injunction is
dissolved,” it too recently concluded that “current and ongoing”
means “a presently existing violation, not a potential, or even
likely, future violation.” Cason v. Seckinger, 231 F.3d 777, 784
(11th Cir. 2000). The Eleventh Circuit found determinative, as
we do, the legislative history of the enactment. The phrase
“current and ongoing” was originally enacted as “current or
ongoing”; it was amended in 1997. As the conference report
explaining the significance of the change states:
These dual requirements [of a current and an ongoing
violation] are necessary to ensure that court orders do
not remain in place on the basis of a claim that a
current condition that does not violate prisoners’
Federal rights nevertheless requires a court decree to
address it, because the condition is somehow traceable
to a prior policy that did violate Federal rights, or
that government officials are “poised” to resume a
prior violation of Federal rights. If an unlawful
practice resumes or if a prisoner is in imminent danger
of a constitutional violation, the prisoner has prompt
and complete remedies through a new action filed in
State or Federal court and preliminary injunctive
relief.
28
Therefore, in order to make the required finding of a
current and ongoing violation of a Federal right required by
§ 3626(b)(3) a court must look at the conditions in the jail at
the time termination is sought, not at conditions that existed in
the past or at conditions that may possibly occur in the future,
to determine if there is a violation of a federal right.
Additionally, the court must also, based on the record, make the
other findings required by § 3626(b)(3). “The court must make
new findings about whether the relief currently complies with the
need-narrowness-intrusiveness requirements, given the nature of
the current violations. It is not enough under § 3626(b)(3) that
the orders, when entered, were sufficiently narrow considering
the violations that existed at that time.” Cason, 231 F.3d at
784-85. This
requir[es] particularized findings, on a provision-by-
provision basis, that each requirement imposed by the
consent decrees satisfies the need-narrowness-
intrusiveness criteria, given the nature of the current
and ongoing violation. It is not enough to simply
state in conclusory fashion that the requirements of
the consent decrees satisfy those criteria.
Particularized findings, analysis, and explanations
should be made as to the application of each criteria
to each requirement imposed by the consent decrees.
Id. We agree with this analysis.
In its 1999 order continuing relief, the district court
found
H.R. CONF. REP. NO. 105-405, at § 123 (1997), 1997 WL 712946 (Leg.
Hist.), at *301.
29
that prospective relief . . . remains necessary to
correct and prevent a current and ongoing violation of
the Class Plaintiffs’ Federal Constitutional Rights,
that the temporary injunction extends no further than
necessary to correct the violation of the Class
Plaintiffs’ Federal Constitutional Rights, and that the
temporary injunction is narrowly drawn and is the least
intrusive means to correct the violation.
As a basis for these findings, the court
considered the arguments made by all counsel at the
hearing on July 27, 1999, the stipulation made by all
parties, including the [sic] Daniel Maeso who
represents the State of Texas, that there [sic] at
least 289 Blue Warrant persons in Cameron County and
that the Cameron County Jail would be well over 100%
capacity of [sic] these 289 Blue Warrant persons were
incarcerated in that jail, the stipulation filed by
Cameron County and Plaintiffs on July 29, 1999 and the
Affidavit of Captain Luis Esparza. The Court also
takes judicial notice of all evidence previously
presented in this case.
Although the language in the 1999 order tracks the requirements
of § 3626(b)(3), it does not reach the needed level of
particularized findings based on the conditions in the jail at
the time termination was requested that is required by
§ 3626(b)(3). Additionally, there is simply not enough evidence
in the record to support the requisite findings.
The only evidence in the record relevant to whether a
“current and ongoing” violation of a federal right exists, is
that there are 289 Blue Warrant persons outstanding who would put
the Jail over design capacity if they were arrested. There are
two reasons that this is insufficient to support the finding of a
“current and ongoing” constitutional violation. First, although
overcrowding may give rise to unconstitutional conditions,
30
overcrowding itself is not per se unconstitutional. See Rhodes
v. Chapman, 452 U.S. 337, 347-50 (1981). Second, this threat of
overcrowding was based on a prediction of future activity. See,
e.g., Watson v. Ray, 192 F.3d 1153, 1158 (8th Cir. 1999)
(“[A]ppellant could only point to ‘the looming threat of
potential overcrowding’ but did not produce any evidence to
support a finding that this threat constitutes a ‘current and
ongoing violation’ under the PLRA.”).
Moreover, there was no evidence in the 1999 order or in the
record of any analysis or explanation as to the other findings
required by 18 U.S.C. § 3626(b)(3). For example, we would expect
the court to consider other alternatives before reaching the
conclusion that these injunctions “extend[] no further than
necessary to correct the violation of the Federal right,” 18
U.S.C. § 3626(b)(3), and are “narrowly drawn and the least
intrusive means to correct the violation.” Id.However, as we note that the record before us contains
almost no evidence regarding current conditions in the Jail and
that all parties offered to present additional evidence on these
issues at the July 27 hearing, we conclude that the best course
of action is to remand this case to the district court to hold an
evidentiary hearing on whether the relief meets the requirements
of § 3626(b)(3).
31
V. ENTRY OF PROSPECTIVE RELIEF UNDER § 3626(a)
In addition to arguing that the injunctions should be
terminated pursuant to the §§ 3626(b)(1) and (b)(2) termination
provisions of the PLRA, the State also argues that the September
1994 injunction, the 1997 injunction, and the 1999 order should
be terminated because they violate the requirements of
§ 3626(a)(3), which sets out the criteria for the entry of
prisoner release orders (including the requirement for a three-
judge court), and § 3626(a)(1)(B), which sets out the conditions
under which a court can enter prospective relief that allows a
government official to violate state law.21
In regard to the entry of prisoner release orders, the
relevant provisions of § 3626(a)(3) provide:
(A) In any civil action with respect to prison
conditions, no court shall enter a prisoner release
order unless–
(i) a court has previously entered an order for less
intrusive relief that has failed to remedy the
deprivation of the Federal right sought to be remedied
through the prisoner release order; and
(ii) the defendant has had a reasonable amount of time
to comply with the previous court orders.
21
The plaintiffs contend that because these arguments
were not made in the State’s initial motion to terminate the
September 1994 injunction, consideration of the issues is
precluded. We disagree. “No ‘bright-line rule’ exists for
determining whether a matter was raised below.” N.Y. Life Ins.
Co. v. Brown, 84 F.3d 137, 142 n.14 (5th Cir. 1996). The State
made these arguments in its “Advisory to the Court” filed on June
28, 1999, and these issues were debated at the July 27 hearing,
without objection by any party. Therefore, we hold that these
issues were adequately raised in the district court and we may
consider them on appeal.
32
(B) In any civil action in Federal court with respect
to prison conditions, a prisoner release order shall be
entered only by a three-judge court in accordance with
section 2284 of title 28, if the requirements of
subparagraph (E) have been met.
18 U.S.C. § 3626(a)(3)(A), (B) (emphasis added). As discussed
above, we have already found the September 1994 injunction and
the 1997 injunction to fit within the PLRA’s definition of
prisoner release orders. Therefore, we must determine how this
provision of the PLRA affects the September 1994 injunction, the
1997 injunction, and the 1999 order.
The State also argues that the September 1994 injunction,
the 1997 injunction, and the 1999 order should be terminated
because they permit the sheriff of Cameron County to refuse to
accept parole violators, in violation of § 3626(a)(1)(B).
Section 3626(a)(1)(B) provides:
The court shall not order any prospective relief that
requires or permits a government official to exceed his
or her authority under State or local law or otherwise
violates State or local law, unless–
(i) Federal law requires such relief to be ordered in
violation of State or local law;
(ii) the relief is necessary to correct the violation
of a Federal right; and
(iii) no other relief will correct the violation of a
federal right.
Id. § 3626(a)(1)(B) (emphasis added). The parties do not dispute
that permitting the Cameron County sheriff to decline to accept
“blue warrant” parole violators into the jail constitutes a
violation of state law. Therefore, we must determine how this
33
provision of the PLRA impacts the existing injunctions and the
1999 order.
While we agree that the PLRA was intended to apply to
injunctions existing at the time the PLRA was enacted, we do not
agree that the PLRA requires termination of pre-PLRA injunctions
that did not meet the requirements of §§ 3626(a)(1)(B) and
(a)(3). As discussed above, when enacting the PLRA, Congress
specifically provided that “‘[Section 3626] shall apply with
respect to all prospective relief whether such relief was
originally granted or approved before, on, or after the date of
the enactment of this title.’” Martin v. Hadix, 527 U.S. 343,
355 (1999) (alteration in original) (quoting § 802(b)(1), note
following 18 U.S.C. § 3626 (1994 ed., Supp. III)).
“‘In interpreting a statute, our objective is to give effect
to the intent of Congress. As always, we begin with the language
of the statute itself.’” Ruiz v. Estelle, 161 F.3d 814, 819 (5th
Cir. 1998) (quoting Stiles v. GTE Southwest Inc., 128 F.3d 904,
907 (5th Cir. 1997)). Here, the language of the provisions at
issue indicates that they apply only when the court is entering
relief. Section 3626(a)(1)(B) begins: “The court shall not order
any prospective relief.” 18 U.S.C. § 3626(a)(1)(B). Similarly,
the language in § 3626(a)(3) provides: “No court shall enter a
prisoner release order unless. . . .” Id. (a)(3). Relying on
the language of the statutes, we conclude that they do not apply
when relief was entered prior to the enactment of the PLRA. The
34
Court of Appeals for the Seventh Circuit agrees. See Berwanger
v. Cottey, 178 F.3d 834, 836 (7th Cir. 1999) (“To the extent this
request was based on 18 U.S.C. § 3626(a)(3), which establishes
special requirements for prisoner release orders, it was
unfounded. The orders in question long predate § 3626 . . . .
The district court did not ‘enter’ any order in violation of the
PLRA.”).
In sum, although the PLRA applies to injunctions existing at
the time of its enactment, §§ 3626 (a)(1)(B) and (a)(3) apply
when relief is entered, whether that occurs by entering new
relief or by modifying existing relief. Therefore, the September
1994 injunction and the 1997 injunction cannot be terminated for
failure to comply with §§ 3626(a)(1)(B) and (a)(3) because they
predated the PLRA and do not constitute the entering of relief.
Similarly, the district court, in entering the 1999 order, did
not enter new relief, but simply denied the State’s motion to
terminate the existing relief. Although the court did expressly
state that it was continuing the relief, that language is a mere
truism – it did no more than state what would happen by operation
of law once the motion to terminate the relief was denied. No
changes or modifications to the injunctions in place were made.
Additionally, we note that “[i]t is generally presumed that
Congress acts intentionally and purposely when it includes
particular language in one section of a statute but omits it in
another.” BFP v. Resolution Trust Corp., 511 U.S. 531, 537
35
(1994) (brackets, internal quotation marks, and citation
omitted). Congress did not explicitly state that failure to
comply with these particular provisions is a ground for
termination of relief. In contrast, in § 3626(b), Congress did
provide that failure comply with other provisions of the PLRA
would be grounds for termination of relief. See 18 U.S.C.
§ 3626(b)(2). In fact, § 3626(b)(2), which provides for
immediate termination of relief if particular findings were not
made when the prospective relief at issue was entered, contains
almost the exact same findings criteria as § 3626(a)(1), which
sets out the requirements for the granting of prospective relief.
If Congress had intended that injunctions issued before the
enactment of the PLRA were to be terminated for failure to comply
with the requirements of §§ 3626(a)(1)(B) and (a)(3), it would
have so provided. Therefore, we find that the September 1994
injunction, the 1997 injunction, and the 1999 order are not
terminable for failure to comply with those sections.
VI. CONCLUSION
On remand the district court must first determine if a
continuing and ongoing constitutional violation exists, and, if
so, whether the remaining requirements of § 3626(b)(3) are met.
However, we note that any modification of the existing relief
that constituted the entry of new relief would need to meet the
requirements set out in § 3626(a). Additionally, should the
36
existing relief be terminated for failure to meet the
requirements of § 3626(b)(3), the plaintiffs are entitled to seek
new prospective relief, but that relief must also meet the
standards set forth in § 3626(a). The district court should
conduct the required hearing and rule on termination as promptly
as possible.
Therefore, we VACATE the 1999 order and REMAND the case for
further proceedings consistent with this opinion.
37