The structure of the PLRA adds further support to the conclusion that the Court's prior determinations regarding the hourly rate and the source of payment of the Special Master do not constitute "relief." Except for the separate "Application of Amendment" provision, discussed above, section 802 of the PLRA is contained in one section, 18 U.S.C. § 3626, which is divided into seven subsections, several of which specifically address either prospective relief or relief. Thus, subsection (a) is entitled "Requirements for Relief," subsection (b) is entitled "Termination of Relief", subsection (c) is entitled "Settlements" and subsection (e) is entitled "Procedure for Motions Affective Prospective Relief." The provisions dealing with special masters, however, are contained in a separate section, subsection (f), entitled "Special Masters." Moreover, the language of subsection (f) further distinguishes Special Masters from the relief itself. For example, subsection (f)(6)(C) permits Special Masters, upon authorization by the court, to assist in the development of the remedy, and subsection (f)(6)(D) provides that the Special Master shall be relieved of his or her appointment once the relief is terminated.
Defendants assert that by making the PLRA retrospective "with respect to all prospective relief," Congress "clearly envisioned that every provision of [the PLRA] . . . [was] intended to apply [retrospectively] to pending cases." Defendants' June 18, 1996 memorandum at 8 (emphasis in original). However, as explained above, the plain language of section 802(b), the traditional legal meaning of the term "relief," and the structure of the PLRA do not make this clear at all; instead they argue to the contrary.
Defendants nonetheless contend that use of the phrase "with respect to prospective relief" was not intended to distinguish among different types of orders; rather, it was only intended to "distinguish open cases with prospective effects from cases in which judgments are irrevocably final." Id. This distinction is not entirely clear as even in cases in which there is a final judgment there could be orders which have prospective effects. In any event, section 802(b) simply does not make the distinction defendants urge upon the Court. Indeed, their approach would essentially require us to rewrite section 802(b) to extend retrospective application of the PLRA to any order having a prospective "effect" rather than limiting it to those which provide prospective "relief." This we are not at liberty to do.
Given all of the above, it is clear that the operative term -- relief-- does not encompass a prior order of the Court setting the hourly rate of a Special Master or the source of the payment. Moreover, even assuming arguendo that the term "relief" was found to be ambiguous in this regard, we would, for the reasons explained below, resolve that ambiguity against retrospective application in this particular case.
When Congress expressly dictates the retrospective reach of a statute but expresses this command using a term later found susceptible of more than one interpretation, we should avoid unnecessarily broad constructions that result in retroactive effects that Congress has not clearly considered. This approach is consistent with the judicial default rules fashioned by the Supreme Court in Landgraf to resolve retrospectivity disputes where Congress has not clearly spoken on the question. Landgraf, 114 S. Ct. at 1505. As discussed above, those rules impose a clear presumption against applying legislation retrospectively that would have a retroactive effect. Id. at 1501, 1505, 1508 (Given public and legislative expectations, statutes with retroactive effect should not apply retrospectively absent evidence that Congress clearly favored this result).
Thus, to extent that the term "relief" is subject to more than one possible construction, it is appropriate to adopt that interpretation which avoids retroactive effects. This Court's reading of the term "relief," discussed above, clearly avoids any such effect since it precludes retrospective application of section 802(a)(f)(4). In contrast, defendants' broader interpretation would require application of section 802(a)(f)(4) to this case. More importantly, we conclude that section 802(a)(f)(4), if applied, would operate retroactively in this particular case.
As Landgraf makes clear, retroactivity may manifest itself in different ways depending on the context. Thus, the inquiry into whether a statute would operative retroactively in any given case can not always be solved by resort to simple formula or rigid rules. As the Supreme Court noted, "deciding when a statute operates 'retroactively' is not always a simple or mechanical task." Landgraf, 114 S. Ct. at 1498. Rather, courts assessing retroactivity "must ask whether the new provision attaches new legal consequences to events completed before its enactment." Id. at 1499. "The conclusion," the Court added, "that a particular rule operates 'retroactively' comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event." Id. As the Court acknowledged, "any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity." Id. The Court concluded, however, that:
retroactivity is a matter on which judges tend to have 'sound . . . instinct[s]' . . . and familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.
To be sure, the Supreme Court highlighted three common retroactive effects that may result from new legislation: (a) the impairment of rights a party possessed when s/he acted, (b) an increase in a party's liability for past conduct, or (c) the imposition of new duties with respect to transactions already completed. Id. at 1505. We do not, however, read the Supreme Court to hold, as defendants suggest, that these three examples represent the entire universe of possible retroactive effects. Indeed, such a reading would conflict with the Court's more expansive explanation of retroactivity discussed above, id. at 1499, and would render all but meaningless the Court's admonition that the retroactivity judgment comes "at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event." Id.; see also Lindenthal, 61 F.3d at 1407 (noting the three examples cited above but defining the term "retroactive" to mean a new statute which, if applied retrospectively, "would attach new legal consequences to conduct or transactions already completed").
Thus, in deciding whether the term "relief," if construed broadly, would cause retroactive effects in this case (through the retrospective application of section 802(a)(f)(4)), we focus on the basic inquiry underlying the three examples identified above: whether the statute in question (in this case section 802(a)(f)(4)) "attaches new legal consequences to [prior] events," Landgraf, 114 S. Ct. at 1499, or results in unfair new burdens. Id. at 1500 ("The presumption against statutory retroactivity has consistently been explained by reference to the unfairness of imposing new burdens on persons after the fact").
While the retroactive effects of section 802(a)(f)(4) in the case at bar may not be traditional (given the unusual nature of the provision), they are no less real. The Court appointed the Special Master to undertake a tremendously demanding task in a very complex case involving numerous, and sometimes novel, remedial issues. Indeed, this Court's experience with the remedial process to date has only served to further demonstrate the difficulty and extent of the challenges facing the Special Master in this case. The Special Master accepted this assignment in January 1995 on the representation that he would be compensated at an hourly rate of $ 125.00 per hour. As of the date of this order, he has devoted close to 18 months to assisting defendants to formulate and implement relief for the plaintiff class. It is also clear to the Court that it could not ask for a more experienced, diligent, and conscientious Special Master.
The gross unfairness of depriving the Special Master -- ex post facto -- of the benefit of the Court's representation and order, and slashing his compensation 40 percent many months into the remedial process is self-evident. The drastic change in pay also plainly changes the legal consequences of the Special Master's acceptance of, and appointment to, his position long after the fact, and long after he has committed himself morally and professionally to completing the task undertaken. Under these circumstances, we have little doubt that section 802(a)(f)(4) is genuinely retroactive in any fair sense of the word. As such, "sound considerations of general policy and practice" . .. . and "long held and widely shared expectations about the usual operation of legislation," 114 S. Ct. at 1508, strongly argue against the retrospective application of section 802(a)(f)(4) in this particular instance.
Shifting the cost of the Special Mastership from defendants to the judiciary is also retroactive in nature. This unprecedented aspect of section 802(a)(f)(4) relieves a culpable litigant of a significant financial burden required to cure its own constitutional violations, and instead imposes that obligation upon the federal courts. As such, the provision fundamentally alters the legal consequences -- for the judiciary -- of this Court's prior finding of liability, for the Court has little choice but to continue the Special Mastership. Any other action would constitute an abdication of this Court's responsibility to ensure that defendants formulate and implement full relief for the plaintiff class.
Defendants emphasize that they are "not aware of any case finding such judicial interests cognizable for purposes of determining a statute's retroactivity." Defs' Memorandum at 9. We do not find this observation dispositive, however, since this appears to be the first time that Congress has imposed what is normally considered a responsibility of the losing party upon the judiciary -- and the first time such a party has sought retrospective application of such a provision.
The transfer of the cost of the Special Mastership at this juncture not only imposes a substantial new burden on the judiciary for its previous decisions, but it also injects uncertainty into an on-going remedial process and alters its existing balance. While the Court has been informed that some federal funds are currently available, there is clearly no guarantee that those funds will continue to be forthcoming or will not be subject to restrictions that may significantly impair the Court's ability to effectuate full and effective relief. Of course any such impairment would also interfere with the plaintiffs' rights to such relief. Completely relieving defendants of any obligation to bear the cost of the Special Mastership may also undermine incentives to proceed efficiently and may even provide contrary incentives to delay.
Given the above, we are persuaded that applying section 802(a)(f)(4) to this case in the midst of the remedial process would result in genuine retroactive effects. Thus, to the extent that the term "relief" is ambiguous, we conclude that our original interpretation should still prevail. To hold otherwise and adopt defendants' interpretation would permit section 802(a)(f)(4) to operate retroactively in this case without any evidence of Congressional intent favoring such a result.
Such an outcome clearly runs a foul of the "long held and widely shared expectations about the usual operation of legislation" that underlay the presumption against retroactive legislation. Landgraf, 114 S. Ct. at 1508.
In sum, Congress has expressly limited the retrospective reach of the PLRA to orders providing prospective "relief." For all of the reasons set forth above, we conclude that this Court's January 23, 1995 order setting the hourly rate of the Special Master and determining the party responsible for payment does not constitute "relief" for purposes of section 802(b) of the PLRA. Accordingly, section 802(a)(f)(4) of the PLRA, 18 U.S.C. § 3626(f)(4), does not apply retrospectively to this action.
Therefore, and good cause appearing, defendants' request to modify the Court's January 23, 1995 Order of Reference to conform to section 802(a)(f)(4) must be denied.
IT IS SO ORDERED.
Thelton E. Henderson, Chief Judge
United States District Court.