The judgment is affirmed.
Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE joins,
dissenting.
Appellants seek to appeal to this Court a decision of a
three-judge District Court pursuant to 28 U.S.C. 1253. That section
provides for a direct appeal from any "suit or proceeding required
by any Act of Congress to be heard and determined by a district
court of three judges." If no Act of Congress required a
three-judge District Court to hear this suit, the decision cannot
be appealed directly to this Court pursuant to 1253 even though a
three-judge court may have been in fact convened. Appeal lies
instead to the United States Court of Appeals. Under such
circumstances we do not have jurisdiction to consider the appeal.
Board of Regents v. New Left Education Project,
404 U.S. 541, 30 L. Ed.
2d 697 (1972);
Page 434 U.S.
1052 , 1053
Moody v. Flowers,
387 U.S. 97 (1967);
Phillips v. United States,
312 U.S. 246 (1941 ).
Because I believe that no Act of Congress required a three-judge
District Court in this case, I believe that the Court therefore
errs in considering the merits of the appeal.
Appellee prisoners sued appellants, officials of the California
prison system, in the District Court for the Northern District of
California contending that constitutionally insufficient procedural
safeguards are provided a prisoner who is placed into
administrative segregation. A three-judge court was convened under
28 U.S.C. 2281 (now repealed) which at the time this action was
filed provided for such a court whenever the constitutionality of a
"State statute . . . or of an order made by an administrative board
or commission acting under State statutes" is challenged.
It is the second clause of 2281 that is relevant here since
appellees challenge no state statute. The District Court based its
jurisdiction on a presumed challenge to various regulations
promulgated and issued by the Director of the Department of
Corrections of the State of California. According to the District
Court, these regulations are " formal orders of statewide
application" and thus a challenge to their constitutionality
provides jurisdiction under 2281. Both because the regulations
would not appear to be "order[s] made by an administrative board or
commission" and because appellees would not appear to challenge the
regulations, I do not believe that a three-judge District Court was
required y 2281.
"[T]he three-judge court statute is
to be strictly construed." Board of Regents v. New Left Education
Project, supra, 404 U.S., at 545. Loose construction of 2281 to
require a three-judge court not only " entails a serious drain upon
the federal judicial system" but also, inasmuch as direct review is
in this Court, "defeat[s] the purposes of Congress, as expressed by
the Jurisdictional Act of February 13, 1925, to keep within
Page 434 U.S.
1052 , 1054
narrow confines our appellate docket." Phillips v. United
States, supra, 312 U.S., at 250. Section 2281 does not speak
broadly in terms of "formal orders," as the District Court would
assume. Instead, it requires a three-judge court to be convened
only where a plaintiff challenges an "order made by an
administrative board or commission." ( Emphasis added.) Here, the
orders allegedly under attack were issued by only one man, the
Director of the Department of Corrections. While Congress could
have given three-judge courts jurisdiction over orders issued by
any state official, it did not. When Congress uses exact terms such
as "administrative board" and "commission," it clearly does not
intend to include state officials.
Even assuming that an order of a single state official can
provide jurisdiction for a three-judge District Court here
appellees' complaint does not bring into question the
constitutionality of the regulations. As the District Court
observed, the regulations provide for prior notice and a hearing
"when possible"; these same regulations provide that an inmate
should have the assistance of a caseworker or investigating officer
when he is unable to prepare his own defense and should be allowed
to testify and present documentary evidence; finally, a written
statement of the outcome of the hearing is required. Appellees
presumably do not object to these procedural safeguards. Instead,
they argue that these regulations are not strictly followed, and
that wardens are constitutionally obligated to go even further than
the regulations require and provide for additional procedural
protections such as cross-examination.
There is no allegation that the regulations prohibit additional
procedural safeguards. The rules, which are entitled "General
Procedures," simply provide an outline for the procedures to be
followed when a prisoner is placed in administrative segregation.
Presumably, each warden is free to supplement these minimum
procedures as he sees fit. While wardens may be providing the
minimum procedures with the
Page 434 U.S.
1052 , 1055
acquiescence and even approval of the Director, the choice of
procedures ( beyond the minimum required by the regulations)
remains that of the warden and does not bind any other prison in
California. Under such circumstances, the regulations of the
Director, even if an order of an " administrative board or
commission," is not an order of "general application" and thus will
not provide jurisdiction for a three-judge District Court. See
Griffin v. County School Board,
377 U.S. 218 (1964).
Because a three-judge court was not required in this case, we do
not have appellate jurisdiction and are not free to reach the
merits. Board of Regents v. New Left Education Project, supra, and
cases cited therein. Under such circumstances in the past, we have
vacated the judgment and remanded with instructions to enter a
fresh decree so that appellants may, if they desire, perfect a
timely appeal to the Court of Appeals. I would follow that course
here.
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