Taylor

Opinion by Judge RYMER; Concurrence by Judge TASHIMA; Dissent by Judge WARDLAW; Dissent by Judge GRABER.

The en banc worthy issue in this case is whether.the “immediate termination” provision of the Prison Litigation Reform Act of 1995 (PLRA), 18 U.S.C. § 3626 (b)(2), runs afoul of separation of powers principles. However, we do not need to reach this question because the motion that is *1018 before us — “to terminate the consent decree entered in this case on December 22, 1972” — is moot because the December 22, 1972 order (regardless of its label) was interlocutory and disappeared when the final judgment was entered October 19, 1973. We therefore do not have to, and so should not, resolve the constitutionality of the “immediate termination” provision at this time.

But if this is wrong and Arizona is somehow entitled to proceed, then the constitutionality of § 3626(b)(2) can only be decided in the context of the actual judgment that was entered in this action. That judgment could not be more final. It simply approves rules and restoration of individual good time credits that the parties agreed upon and that were basically in place; the judgment contains no ongoing, monitoring,…

dissenting:

In Taylor v. United States, 143 F.3d 1178, 1185 (9th Cir.1998), a three-judge panel of this court affirmed the district court’s invalidation of the termination provision of the Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, § 802 , 110 Stat. 1321 -65 (1996) (codified as 18 U.S.C.A. § 3626 (b)(2)) (West Supp.1999) (“PLRA” or the “Act”). We took this case en banc to consider whether Taylor would remain the law of the circuit. My colleagues affirm, albeit on different grounds than the now-vacated panel decision. Specifically, the majority “affirm[s] the denial of the motion to terminate the December 22, 1972 consent decree on the ground that *1027 it was moot.” Ante, at 1018. In so holding, the majority today firmly entrenches the Ninth Circuit outside the judicial mainstream of PLRA interpretation. Worse, it effectively precludes Congress from limiting prospectively a discrete kind of federal district court expropriation of power from democratically-elected state governments.

The majority holding is precariously perched upon a mischaraeterization of the “judgment” at issue, the consequences of which are nothing short of extraordinary. Indeed, under the…

concurring in part:

I concur in Parts I and II.A, and in the judgment. As the analysis in Part II.A is sufficient completely to dispose of this appeal, I view Part II.B as unnecessary dicta and decline to reach the issue of the constitutionality of the Prison Litigation Reform Act of 1995 in this case.

dissenting:

I dissent. I join the dissenting opinion of Judge Wardlaw, because (1) the “judgment” in this case embodies prospective relief — as the district court and the parties well understood over the years — making the constitutional question ripe for decision, and (2) the termination provision of the Prison Litigation Reform Act of 1995, 18 U.S.C. § 3626 (b)(2), is constitutional in limiting prospective relief. I write separately to address an additional flaw in Judge Rymer’s analysis: her inclusion of Part 11(B).

When a majority opinion holds, as this one does, that our court lacks a proper opportunity to decide a legal issue that the parties attempt to present, a dissenter has two choices. She can limit her disagreement to the question of our court’s authority, or she can go on to describe how she would resolve the substantive issue that, in her view, the court has authority to decide. The dissenter’s choice of the latter style grants no license to the author of the majority opinion to include dictum on the substantive issue. Such dictum dilutes the message that the bench and bar should be receiving: that the substantive issue remains unresolved as a matter of law.