Posted on 03/23/2005 12:21:22 AM PST by peyton randolph
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 23, 2005
THOMAS K. KAHN
CLERK
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 05-11556
D. C. Docket No. CV-05-00530-T
THERESA MARIA SCHINDLER SCHIAVO,
incapacitated ex rel, Robert Schindler and
Mary Schindler, her parents and next friends,
Plaintiffs-Appellants,
versus
MICHAEL SCHIAVO,
as guardian of the person of
Theresa Marie Schindler Schiavo, incapacitated,
JUDGE GEORGE W. GREER,
THE HOSPICE OF THE FLORIDA SUNCOAST, INC.,
Defendants-Appellees.
--------------------------
Appeal from the United States District Court for the
Middle District of Florida
--------------------------
(March 23, 2005)
Before CARNES, HULL, and WILSON, Circuit Judges.
PER CURIAM:
Plaintiffs have appealed the district court’s denial of their motion for a
temporary restraining order to require the defendants to transport Theresa Marie
Our dissenting colleague says that “the denial 1 nial of Plaintiffs’ request for an injunction
frustrates Congress’s intent, which is to maintain the status quo.” Dissenting Op. at __. The status
quo is that Mrs. Schiavo is not receiving nutrition and hydration. The plaintiffs do not want the
status quo maintained. They want this Court or the district court to issue an injunction affirmatively
requiring the respondents to change the status quo by bringing about the surgical procedure necessary
to reinsert the feeding tube into Mrs. Schiavo.
2
Schindler Schiavo to a hospital to reestablish nutrition and hydration and for any
medical treatment necessary to sustain her life, and to require the state court judge
defendant to rescind his February 25, 2005 order directing removal of nutrition and
hydration from Schiavo and to restrain him from issuing any further orders that
would discontinue nutrition and hydration.1 After notice and a hearing, the district
court entered a careful order which is attached as an Appendix to this opinion.
Plaintiffs have also petitioned this Court to grant the same injunctive relief under
the All Writs Act, 28 U.S.C. § 1651(a).
Although we ordinarily do not have jurisdiction over appeals from orders
granting or denying temporary restraining orders, in circumstances such as these,
“when a grant or denial of a TRO might have a serious, perhaps irreparable,
consequence, and can be effectually challenged only by immediate appeal, we may
exercise appellate jurisdiction.” Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995)
(internal citations, marks, and ellipsis omitted); see also United States v. Wood,
295 F.2d 772, 778 (5th Cir. 1961). In these circumstances we treat temporary
restraining orders as equivalent to preliminary injunctions or final judgments, either
of which are appealable. See 28 U.S.C. §§ 1291 & 1292(a)(1).
The district court correctly stated the four factors to be considered in
determining whether temporary restraining or preliminary injunctive relief is to be
The dissent bemoans the fact that the merits of the plaintiffs’ claims will 2 never be litigated
in federal court. The district court’s finding regarding the first-prong injunctive relief factor reflects
that those claims lack merit, or at least that the possibility of any merit is too low to justify
preliminary injunctive relief.
3
granted, which are whether the movant has established: (1) a substantial likelihood
of success on the merits; (2) that irreparable injury will be suffered if the relief is
not granted; (3) that the threatened injury outweighs the harm the relief would
inflict on the non-movant; and (4) that entry of the relief would serve the public
interest. See Ingram, 50 F.3d at 900; Siegel v. LePore, 234 F.3d 1163, 1176 (11th
Cir. 2000) (en banc). Requests for emergency injunctive relief are not uncommon
in federal court and sometimes involve decisions affecting life and death.
Controlling precedent is clear that injunctive relief may not be granted unless the
plaintiff establishes the substantial likelihood of success criterion. See Siegel, 234
F.3d at 1176; see also Grupo Mexicano de Desarrollo v. Alliance Bond Fund, Inc.,
527 U.S. 308, 339, 119 S. Ct. 1961, 1978 (1999) (“Plaintiffs with questionable
claims would not meet the likelihood of success criterion.”).
Applying those factors, the district court determined that the last three
weighed in favor of granting the temporary restraining order. The court reasoned
that because those three factors were met, plaintiffs only had to show a substantial
case on the merits. After analyzing each of plaintiffs’ claims, the district court
concluded they had failed to show a substantial case on the merits as to any of the
claims.2
While the district court conducted de novo review of plaintiffs’ claims, we
review the district court’s denial of temporary injunctive relief only for an abuse of
Part II of the dissent argues that we 3 should grant an injunction and discusses the four
factors as though this Court were making the decision in the first instance. We are not. We are an
appellate court reviewing the district court’s decision. There is no occasion for us to decide whether
to issue an injunction pending appeal, because the only appeal we have before us is from the district
court’s denial of a temporary restraining order, and we are deciding that appeal now.
4 In arguing that an injunction should be issued, the dissent refers to “a situation where a few
days’ delay” is all that is necessary. That is not this situation. To afford the plaintiffs the pretrial
discovery and full jury trial of all issues they demand would require a delay of many months, if not
longer.
4
discretion. This scope of review will lead to reversal only if the district court
applies an incorrect legal standard, or applies improper procedures, or relies on
clearly erroneous factfinding, or if it reaches a conclusion that is clearly
unreasonable or incorrect. Klay v. United Healthcare, Inc., 376 F.3d 1092, 1096
(11th Cir. 2004); Chi. Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304,
1309 (11th Cir. 2001). Short of that, an abuse of discretion standard recognizes
there is a range of choice within which we will not reverse the district court even if
we might have reached a different decision. See McMahon v. Toto, 256 F.3d 1120,
1128 (11th Cir. 2001); Rasbury v. Internal Revenue Serv. (In re Rasbury), 24 F.3d
159, 168-69 (11th Cir. 1994).3
For the reasons explained in the district court’s opinion, we agree that the
plaintiffs have failed to demonstrate a substantial case on the merits of any of their
claims. We also conclude that the district court’s carefully thought-out decision to
deny temporary relief in these circumstances is not an abuse of discretion.4
The principal theme of plaintiffs’ argument against the district court’s denial
of a temporary restraining order is that Pub. L. No. 109-3, which Congress enacted
to enable them to bring this lawsuit, mandates that injunctive relief be granted to
5
enable them to have a full trial on the merits of their claims. Pub. L. No. 109-3 is
an extraordinary piece of legislation, and it does many things. Defendants contend
that the legislation is so extraordinary that it is unconstitutional in several respects.
We need not decide that question. For purposes of determining whether temporary
or preliminary injunctive relief is appropriate, we indulge the usual presumption
that congressional enactments are constitutional. United States v. Morrison, 529
U.S. 598, 607, 120 S. Ct. 1740, 1748 (2000); Benning v. Georgia, 391 F.3d 1299,
1303 (11th Cir. 2004). It is enough for present purposes that in enacting Pub. L.
No. 109-3 Congress did not alter for purposes of this case the long-standing
general law governing whether temporary restraining orders or preliminary
injunctions should be issued by federal courts.
There is no provision in Pub. L. No. 109-3 addressing whether or under what
conditions the district court should grant temporary or preliminary relief in this
case. There is no more reason in the text of the Act to read in any special rule
about temporary or preliminary relief than there would be to read in a special rule
about deciding the case before trial on Fed.R.Civ.P. 12(b)(6) or summary judgment
grounds. Not only that, but Congress considered and specifically rejected
provisions that would have mandated, or permitted with favorable implications, the
grant of the pretrial stay. There is this enlightening exchange in the legislative
history concerning the Senate bill that was enacted:
Mr. LEVIN. Mr. President, I rise to seek clarification from the
majority leader about one aspect of this bill, the issue of whether
Congress has mandated that a Federal court issue a stay pending
determination of the case.
6
Mr. FRIST. I would be pleased to help clarify this issue.
Mr. LEVIN. Section 5 of the original version of the Martinez bill
conferred jurisdiction on a Federal court to hear a case like this, and
then stated that the Federal court "shall" issue a stay of State court
proceedings pending determination of the Federal case. I was opposed
to that provision because I believe Congress should not mandate that a
Federal judge issue a stay. Under longstanding law and practice, the
decision to issue a stay is a matter of discretion for the Federal judge
based on the facts of the case. The majority leader and the other bill
sponsors accepted my suggestion that the word "shall" in section 5 be
changed to "may."
The version of the bill we are now considering strikes section 5
altogether. Although nothing in the text of the new bill mandates a
stay, the omission of this section, which in the earlier Senate-passed
bill made a stay permissive, might be read to mean that Congress
intends to mandate a stay. I believe that reading is incorrect. The
absence of any state [sic] provision in the new bill simply means that
Congress relies on current law. Under current law, a judge may decide
whether or not a stay is appropriate.
Does the majority leader share my understanding of the bill?
Mr. FRIST. I share the understanding of the Senator from Michigan,
as does the junior Senator from Florida who is the chief sponsor of this
bill. Nothing in the current bill or its legislative history mandates a
stay. I would assume, however, the Federal court would grant a stay
based on the facts of this case because Mrs. Schiavo would need to be
alive in order for the court to make its determination. Nevertheless,
this bill does not change current law under which a stay is
discretionary.
Mr. LEVIN. In light of that assurance, I do not object to the
unanimous consent agreement under which the bill will be considered
by the Senate. I do not make the same assumption as the majority
leader makes about what a Federal court will do. Because the
discretion of the Federal court is left unrestricted in this bill, I will not
exercise my right to block its consideration.
151 Cong. Rec. S3099-100 (daily ed. Mar. 20, 2005) (colloquy between Sens.
Levin & Frist).
Contrary to the dissent’s assertion, we do not believe that the text 5 t of the Act limits or
eliminates a court’s power to grant temporary or preliminary relief. Exactly the contrary. Our
position is that the Act, which does not mention that subject, and which was amended to remove a
provision that would have changed the law, does not affect it at all. The district court applied settled
law and so do we.
7
This enlightening exchange does not contradict the plain meaning of Pub. L.
No. 109-3, but instead reinforces it. Plainly, Congress knew how to change the law
to favor these plaintiffs to the extent that it collectively wished to do so. That is
what the changes it did make, including those to standing law, the Rooker-Feldman
doctrine, and abstention, demonstrate. When Congress explicitly modifies some
pre-existing rules of law applicable to a subject but says nothing about other rules
of law, the only reasonable reading is that Congress meant no change in the rules it
did not mention. The dissent characterizes the language of the Act as clear. It is on
this point: the language of the Act clearly does not purport to change the law
concerning issuance of temporary or preliminary relief.5
To interpret Pub. L. No. 109-3 as requiring that temporary or preliminary
relief be entered regardless of whether it is warranted under pre-existing law would
go beyond reading into the Act a provision that is not there. It would require us to
read into the Act a provision that Congress deliberately removed in order to clarify
that pre-existing law did govern this issue.
Nor do we find convincing plaintiffs’ argument that in reaching its decision
to deny the motion for a temporary restraining order the district court violated Pub.
L. No. 109-3 by considering the procedural history of extensive state court
litigation. The plaintiffs’ complaint and other filings in the district court asserted
8
that they had not been afforded procedural due process by the state courts. Their
pleadings and brief in the district court and this Court are replete with citations to
and discussion about the state court proceedings and decisions. In deciding
whether the plaintiffs had shown a substantial case on the merits of their federal
procedural due process claims, the district court had to consider the prior
proceedings in state court. There is no way to consider a claim that the state court
proceedings violated the Due Process Clause without examining what those
proceedings were. In obedience to Pub. L. No. 109-3 the district court considered
the federal constitutional claims de novo and made its own independent evaluation
of them.
Plaintiffs have also moved this Court under the All Writs Act, 28 U.S.C.
§ 1651(a), for emergency injunctive relief pending appeal, asking us to order the
same temporary or preliminary relief that we have concluded the district court did
not abuse its discretion in denying. They are supported in that motion by a
Statement of Interest filed by the United States’ Department of Justice.
The All Writs Act provides: “The Supreme Court and all courts established
by Act of Congress may issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles of law.” Id. The
purpose of the power codified in that statute is to allow courts “to protect the
jurisdiction they already have, derived from some other source.” Klay, 376 F.3d at
1099. It gives a “residual source of authority to issue writs that are not otherwise
covered by statute” and is an “extraordinary remedy that . . . is essentially equitable
9
and, as such, not generally available to provide alternatives to other, adequate
remedies at law.” Id. at 1100 (internal quotes and citations omitted).
Our decisions make clear that where the relief sought is in essence a
preliminary injunction, the All Writs Act is not available because other, adequate
remedies at law exist, namely Fed.R.Civ.P. 65, which provides for temporary
restraining orders and preliminary injunctions. See Fla. Med. Ass’n v. U.S. Dep’t
of Health, Educ. & Welfare, 601 F.2d 199, 202-03 (5th Cir. 1979) (reversing the
district court’s grant of injunction under the All Writs Act because “Rule 65
provides sufficient protection for the jurisdiction of the district court”); Klay, 376
F.3d at 1101 n.13.
In Klay, we explained that the injunction sought in Florida Medical
Association was a “textbook” example of a preliminary injunction because “[i]t
was issued to preserve the status quo and prevent allegedly irreparable injury until
the court had the opportunity to decide whether to issue a permanent injunction.”
Klay, 376 F.3d at 1101 n.13. The injunction being sought by the plaintiffs is
another textbook example of an effort to use the All Writs Act in order to
circumvent the requirements for preliminary injunctive relief. Granting the
injunctive relief would “confer[] the same legal rights upon plaintiffs and impose[]
the same legal duties upon defendants as would a preliminary injunction.” Fla.
Med. Ass’n, 601 F.2d at 202; id. (the All Writs Act “does not authorize a district
court to promulgate an ad hoc procedural code”). Under our circuit law, the All
Writs Act cannot be used to evade the requirements for preliminary injunctions.
A petition for rehearing or suggestion for rehearing en banc 6 is not, of course, required
before a petition for certiorari may be filed in the United States Supreme Court. If, however, a
petition for rehearing or rehearing en banc is to be filed, it must be filed by 10:00 a.m. ET, March
23, 2005. See Fed.R.App.P. 35(c) & Fed.R.App.P. 40(a)(1).
10
Klay, 376 F.3d at 1101 n.13.
There is no denying the absolute tragedy that has befallen Mrs. Schiavo. We
all have our own family, our own loved ones, and our own children. However, we
are called upon to make a collective, objective decision concerning a question of
law. In the end, and no matter how much we wish Mrs. Schiavo had never suffered
such a horrible accident, we are a nation of laws, and if we are to continue to be so,
the pre-existing and well-established federal law governing injunctions as well as
Pub. L. No. 109-3 must be applied to her case. While the position of our dissenting
colleague has emotional appeal, we as judges must decide this case on the law.
AFFIRMED; PETITION FOR INJUNCTIVE RELIEF DENIED.6
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WILSON, Circuit Judge, dissenting:
I strongly dissent from the majority’s decision to deny the request for an
injunction pursuant to the All Writs Act and the request for a preliminary
injunction. First, Plaintiffs have demonstrated their entitlement to a preliminary
injunction. Second, the denial of Plaintiffs’ request for an injunction frustrates
Congress’s intent, which is to maintain the status quo by keeping Theresa Schiavo
alive until the federal courts have a new and adequate opportunity to consider the
constitutional issues raised by Plaintiffs. The entire purpose for the statute was to
give the federal courts an opportunity to consider the merits of Plaintiffs’
constitutional claims with a fresh set of eyes. Denial of Plaintiffs’ petition cuts
sharply against that intent, which is evident to me from the language of the statute,
as well as the swift and unprecedented manner of its enactment. Theresa Schiavo’s
death, which is imminent, effectively ends the litigation without a fair opportunity
to fully consider the merits of Plaintiffs’ constitutional claims.
We should, at minimum, grant Plaintiffs’ All Writs Petition for emergency
injunctive relief. First, I note that there is no precedent that prohibits our granting
of this petition. Second, mindful of equitable principles, the extraordinary
circumstances presented by this appeal require that we grant the petition to
preserve federal jurisdiction and permit the opportunity to give Plaintiffs’ claims
the full and meaningful review they deserve.
In considering this extraordinary case, I am mindful that “[t]he essence of
equity jurisdiction has been the power of the Chancellor to do equity and to mould
In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we 1 adopted as
binding precedent the decisions of the former Fifth Circuit handed down prior to October 1, 1981.
12
each decree to the necessities of the particular case. Flexibility rather than rigidity
has distinguished it. The qualities of mercy and practicality have made equity the
instrument for nice adjustment and reconciliation between the public interest and
private needs as well as between competing private claims.” Swann v. Charlotte-
Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971) (citations omitted). Keeping
those principles firmly in mind, “mercy and practicality” compel us to grant the
relief requested.
I. All Writs Act, 28 U.S.C. § 1651
The All Writs Act provides: “The Supreme Court and all courts established
by Act of Congress may issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles of law.” 28
U.S.C. § 1651. Federal courts have “both the inherent power and the constitutional
obligation to protect their jurisdiction . . . to carry out Article III functions.”
Procup v. Strickland, 792 F.3d 1069, 1074 (11th Cir. 1986) (en banc) (emphasis
added). Toward that end, the All Writs Act permits federal courts to protect their
jurisdiction with regards to “not only ongoing proceedings, but potential future
proceedings.” Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1099 (11th Cir.
2004) (internal citations omitted); ITT Comm. Devel. Corp. v. Barton, 569 F.2d
1351, 1359 n.19 (5th Cir. 1978)1 (“When potential jurisdiction exists, a federal
court may issue status quo orders to ensure that once its jurisdiction is shown to
exist, the court will be in a position to exercise it.”). Although the Act does not
13
create any substantive federal jurisdiction, it empowers federal courts “to issue
writs in aid of jurisdiction previously acquired on some other independent ground,”
see Brittingham v. Comm’r, 451 F.2d 315, 317 (5th Cir. 1971), and codifies the
“federal courts’ traditional, inherent power to protect the jurisdiction they already
have.” Klay, 376 F.3d at 1099.
An injunction under the All Writs Act is an extraordinary remedy, one that
“invests a court with a power that is essentially equitable, and as such, not
generally available.” Clinton v. Goldsmith, 526 U.S. 529, 537, 119 S. Ct 1538,
1543 (1999). A federal court’s power under the Act, while limited, is broad
enough that “[a] court may grant a writ under this act whenever it is ‘calculated [in
the court’s] sound judgment to achieve the ends of justice entrusted to it.” Klay,
376 F.3d at 1100 (citing Adams v. United States, 317 U.S. 269, 273, 63 S. Ct. 236,
239 (1942)).
I am careful to stress that equitable relief under the All Writs Act is not to be
confused with a traditional injunction, which is “predicated upon some cause of
action.” Klay, 376 F.3d at 1100. An injunction entered pursuant to the All Writs
Act is not a substitute for traditional injunctive relief. The All Writs Act injunction
is distinguished from a traditional injunction not by its effect, but by its purpose.
To obtain relief under the All Writs Act, Plaintiffs need not satisfy the traditional
four-part test associated with traditional injunctions “because a court’s traditional
power to protect its jurisdiction, codified by the act, is grounded in entirely
separate concerns.” Id. However, Plaintiffs must show that “some ongoing
The majority opinion holds that the All Writs Act is not appropriate in this case becaus2 e
“where the relief sought is in essence a preliminary injunction, the All Writs Act is not available
because other, adequate remedies at law exist, namely Fed.R.Civ.P. 65, which provides for
temporary restraining orders and preliminary injunctions” Maj. Opn. at * 7-8. I do not argue with
that point. However, in this case, the relief Plaintiffs seek is not a preliminary injunction by another
name. Rather, the purpose for which Plaintiffs ask that we reinsert Theresa Schiavo’s feeding tube
is to permit a federal court to have time within which to exercise its jurisdiction and fully entertain
Plaintiffs’ claims. Thus, the purpose of entering an injunction in this case is limited to the narrow
goal of aiding the exercise of federal jurisdiction. Plaintiffs’ claim is precisely the one and only type
of situation in which an All Writs Act injunction is appropriate and for which there is no other
adequate remedy at law.
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proceeding . . . is being threatened by someone else’s action or behavior.” Id.
Relief pursuant to the All Writs Act should only be granted in extraordinary
circumstances where inaction would prevent a federal court from exercising its
proper Article III jurisdiction.2
As an appellate court, we may grant All Writs Act relief to preserve our
“potential jurisdiction . . . where an appeal is not then pending but may be later
perfected.” F.T.C. v. Dean Foods Co., 384 U.S. 597, 603, 86 S. Ct. 1738, 1742
(1966). In Dean Foods, the Supreme Court sustained the entry of a preliminary
injunction that prevented the consummation of a merger of two corporations. The
Supreme Court held that the use of an All Writs Act injunction was particularly
appropriate in a situation where “an effective remedial order . . . would otherwise
be virtually impossible.” Id. at 605. That is precisely the case here.
Plaintiffs have demonstrated that the issuance of an injunction is essential to
preserve the federal courts’ ability to “bring the litigation to a natural conclusion.”
Klay, 376 F.3d at 1102. By failing to issue an injunction requiring the reinsertion
of Theresa Schiavo’s feeding tube, we virtually guarantee that the merits of
Plaintiffs’ claims will never be litigated in federal court. That outcome would not
15
only result in manifest injustice, but it would thwart Congress’s clearly expressed
command that Plaintiffs’ claims be given de novo review by a federal court.
Given the extraordinary circumstances of this case, we are fully within our
power to issue an injunction “in aid of [our] jurisdiction” pursuant to the All Writs
Act. Under the Act, “[a] court may enjoin almost any conduct ‘which, left
unchecked, would have . . . the practical effect of diminishing the court’s power to
bring the litigation to a natural conclusion.” Klay, 376 F.3d at 1102 (citing Barton,
569 F.2d at 1359). Federal courts may “compel acts necessary to promote the
resolution of issues in a case properly before it” including “issu[ing] orders to aid
in conducting factual inquiries.” Id. (citations and internal quotation omitted).
The issuance of an All Writs Act injunction is, as mentioned earlier, an
extraordinary remedy. However, this case is clearly extraordinary. Furthermore,
entry of an All Writs Act injunction is necessary to preserve federal jurisdiction to
hear Plaintiffs’ claims. My research has not revealed any precedent which clearly
prohibits the entry of an All Writs Act injunction in a situation where a few days’
delay is “necessary or appropriate in aid of” federal court jurisdiction. 28 U.S.C.
1651. In contrast, refusing to grant the equitable relief would, through Theresa
Schiavo’s death, moot the case and eliminate federal jurisdiction.
This deprivation would directly contravene Congress’s recent enactment
granting jurisdiction in this case. An Act for the relief of the parents of Theresa
Marie Schiavo, Pub. L. No. 109-3 § 2 (Mar. 21, 2005). The first step in statutory
interpretation requires that courts apply the plain meaning of the statutory language
16
unless it is ambiguous. Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.
Ct. 1146, 1149 (1992); United States v. Fisher, 289 F.3d 1329, 1337-38 (11th Cir.
2002). Only when we find ambiguity in the statute's text should we apply canons
of statutory interpretation, such as the canon of constitutional avoidance. Dep't of
Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 134, 122 S. Ct. 1230, 1235 (2002).
Because the language of the statute is clear, the majority’s reliance on
legislative history is unwarranted and incorrect. As originally proposed, the Act
mandated a stay of proceedings while the district court considered Plaintiffs’
claims. A later version changed the language from “shall” (mandating a stay) to
“may” (authorizing a stay). See 151 Cong. Rec. 3099, 3100 (daily ed. Mar. 20,
2005) (statement of Sen. Levin). Although the final version of the Act did not
contain any stay provision, we should not read this to mean that Congress intended
to deny this Court the power to issue a stay. The reason that Congress deleted the
stay provision is that “this bill does not change current law under which a stay is
discretionary.” Id. (statement of Sen. Frist). In short, the legislation did not need
an explicit stay provision because, given the already-existing discretionary power
of federal courts to issue injunctions in aid of jurisdiction, it would have been
redundant and unnecessary. Therefore, the majority’s assertion that the text of the
statute limits or eliminates our power to enter an injunction is misplaced.
Here, we have Congress’s clear mandate requiring the federal courts to
consider the actual merits of Plaintiff’s claims. Congress intended for this case to
be reviewed with a fresh set of eyes. We are not called upon to consider the
17
wisdom of this legislation. In granting this injunction we would merely effectuate
Congress’s intent.
If Congress had intended that federal review of the issues raised by Plaintiffs
be given customary and ordinary treatment, that review would be confined to
consideration of the denial of the motion for a writ of habeas corpus in Case No.
05-11517. There, consideration of Plaintiffs’ constitutional claims would be
limited by the substantial deference that is afford to previous state court
determinations. Yet, Congress went to great lengths to remove many of those
limitations. First, the legislation eliminates any “standing” barriers to the
commencement of an action by Plaintiffs. Secondly, the legislation gives the
Middle District of Florida entirely new consideration over any claim of a violation
of Theresa Schiavo’s constitutional rights, without respect to “any prior state court
determination and regardless of whether such a claim has previously been raised,
considered, or decided in state court proceedings.” The legislation goes even
further to eliminate any exhaustion requirements. Congress obviously intended
that this case be considered by federal courts without the customary limitations.
Today, we are not called upon to second-guess the wisdom of Congress, but to
apply the law it has passed.
II. Preliminary Injunction
At first glance, Plaintiffs’ request for an injunction does not appear as strong
as their claim pursuant to the All Writs Act. However, I believe that an injunction
is appropriate and, at the very least, we should issue an injunction to permit the
18
district court to review to review Plaintiffs’ claims on the merits.
To prevail on their request for injunctive relief, Plaintiffs must demonstrate
the following: (1) a substantial likelihood of success on the merits; (2) irreparable
injury if the injunction is not issued; (3) threatened injury to the movant outweighs
the potential damage that the proposed injunction may cause the defendants; and
(4) the injunction will not be adverse to the public interest. See All Care Nursing
Serv., Inc. v. Bethesda Mem’l Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir. 1989)
(citation omitted). The issuance of an injunction is an extraordinary remedy, and
the moving party “bears the burden to clearly establish the four prerequisites.”
Café 207, Inc. v. St. Johns County, 989 F.2d 1136, 1137 (11th Cir. 1993).
It is clear from our cases that proof of a substantial likelihood of success on
the merits is an indispensable prerequisite to a preliminary injunction. All Care
Nursing Serv., 887 F.2d at 1537. However, the movant must demonstrate a
“substantial likelihood,” not a substantial certainty. To require more undermines
the purpose of even considering the other three prerequisites. Thus, instead, “the
movant need only present a substantial case on the merits when a serious legal
question is involved and show that the balance of the equities weighs heavily in
favor of granting the [preliminary injunction].” Ruiz v. Estelle, 650 F.2d 555, 565
(5th Cir. 1981) (per curiam); see Gonzalez v. Reno, No. 00-11424-D, 2000 WL
381901 at *1 (11th Cir. Apr. 19, 2000); United States v. Hamilton, 963 F.2d 322,
323 (11th Cir. 1992) (quoting ); Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th
Cir. 1986). The review “require[s] a delicate balancing of the probabilities of
19
ultimate success at final hearing with the consequences of immediate irreparable
injury which could possibly flow from the denial of preliminary relief.” Siegel v.
Lepore, 234 F.3d 1163, 1178 (11th Cir. 2000) (en banc).
As we stated in Gonzalez, “where the balance of the equities weighs heavily
in favor of granting the [injunction], the movant need only show a substantial case
on the merits.” Gonzalez, 2000 WL 381901 at *1 (internal citations omitted)
(alteration in original). In this case, the balance of the equities weighs heavily in
favor of granting the injunction. We determine the balance of the equities by
examining the three final factors required to grant a preliminary injunction.
Garcia-Mir, 781 F.2d at1453.
“A showing of irreparable harm is the sine qua non of injunctive relief.”
Northeastern Fla. Chapter of the Ass’n of Gen. Contractors of Am. v. City of
Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990) (citation and internal quotation
omitted). Here, the immediate irreparable injury is not only possible, it is
imminent. I am aware of no injury more irreparable than death. Clearly, the
threatened injury of death outweighs any harm the proposed injunction may cause,
i.e. reinserting the feeding tube. In fact, I fail to see any harm in reinstating the
feeding tube. On the other hand, a denial of the request for injunction will result in
the death of Theresa Schiavo. Finally, an injunction in this case clearly would not
be adverse to public interest, thus satisfying the fourth and final criteria necessary
to grant a preliminary injunction. Upon reviewing these three factors, it is obvious
that the equities weigh heavily in favor of granting the injunction.
20
I now consider the first prong, whether Plaintiffs presented a substantial case
on the merits. In the complaint, Plaintiffs claim that Theresa Schiavo’s Fourteenth
Amendment due process rights were violated in that she was not provided a fair
and impartial trial, she was not given adequate procedural due process, and she was
not afforded equal protection of the laws. Further, Plaintiffs contend that Theresa
Schiavo’s First Amendment freedom to exercise her religion has been burdened by
the state court’s order to remove the feeding tube. Plaintiffs also allege a violation
of the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.
§ 2000cc-1(a).
The establishment of a “substantial likelihood for success on the merits” is a
heavy burden, but not an insurmountable one. A movant need not establish that he
can hit a home run, only that he can get on base, with a possibility of scoring later.
In fact, our circuit jurisprudence establishes that the movant need not establish a
“probability” of success, taking all things into consideration. The merits of
Plaintiffs’ substantial claims warrant a more complete review. I do not mean to
suggest that Plaintiffs will definitely prevail on the merits, but merely that she has
presented a sufficient case on the merits. She raises legal issues necessitating the
grant of the preliminary injunction and should be afforded an opportunity to defend
the merits of her claims. Adjudication on the merits is impossible if we do not
grant the injunction.
Finally, I note that awarding an injunction is an equitable decision. We have
broad powers to fashion a remedy in equity. We are required to balance the
21
equities, and when we do, we should find that the gravity of the irreparable injury
Theresa Schiavo would suffer could not weigh more heavily in Plaintiffs’ favor. In
contrast, there is little or no harm to be found in granting this motion for a
temporary injunction and deciding the full merits of the dispute.
For the foregoing reasons, I respectfully dissent.
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APPENDIX TO THE MAJORITY OPINION
22
THERESA MARIE SCHINDLER SCHIAVO, Incapacitated ex rel., ROBERT
SCHINDLER and MARY SCHINDLER, her Parents and Next Friends, Plaintiffs,
vs. MICHAEL SCHIAVO, JUDGE GEORGE W. GREER and THE HOSPICE
OF THE FLORIDA SUNCOAST, INC., Defendants.
Case No. 8:05-CV-530-T-27TBM
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF
FLORIDA, TAMPA DIVISION
2005 U.S. Dist. LEXIS 4265
March 22, 2005, Decided
COUNSEL: [*1] For Theresa Marie Schindler Schiavo,
incapacitated ex rel, Robert Schindler and Mary Schindler,
her parents and next friends, Plaintiff: David C. Gibbs, III,
Gibbs Law Firm, Seminole, FL; George E. Tragos, Law
Office of George E. Tragos, Clearwater, FL; Robert A.
Destro, Columbus School Of Law, Washington, DC.
For Michael Schiavo, as guardian of the person of Theresa
Marie Schindler Schiavo, incapacitated, Defendant: George
J. Felos, Felos & Felos, P.A., Dunedin, FL; Iris Bennett,
Jenner & Block LLC, Washington, DC; Randall C.
Marshall, American Civil Liberties Union Foundation of
Florida, Inc., Miami, FL; Rebecca H. Steele, ACLU
Foundation of Florida, Inc., West Central Florida Office,
Tampa, FL; Robert M. Portman, Jenner & Block,
Washington, DC; Thomas J. Perrelli, Jenner & Block,
Washington, DC.
Page 23
APPENDIX TO THE MAJORITY OPINION
23
For The Hospice of the Florida Suncoast, Inc., Defendant:
Gail Golman Holtzman, Constangy, Brooks & Smith, LLC,
Tampa, FL; John W. Campbell, Constangy, Brooks &
Smith, LLC, Tampa, FL; Robin G. Midulla, Robin Greiwe
Midulla, P.A., Tampa, FL.
For Liberty Counsel, Inc., Amicus: Erik W. Stanley,
Liberty Counsel, Longwood, FL.
For United States, Interested Party: Paul I. Perez, [*2]
U.S. Attorney's Office, Middle District of Florida, Orlando,
FL; Warren A. Zimmerman, U.S. Attorney's Office, Middle
District of Florida, Tampa, FL.
For Morton Plant Hospital Association, Inc., Victor E.
Gambone, M.D., Morton Plant Mease Primary Care, Inc.,
Stanton P. Tripodis, M.D., Interested Parties: James
Addison Martin, Jr., Macfarlane Ferguson & McMullen,
Clearwater, FL; Jeffrey W. Gibson, MacFarlane Ferguson
& McMullen, Clearwater, FL.
Gordon Wayne Watts, Interested Party, Pro se, Lakeland,
FL.
JUDGES: JAMES D. WHITTEMORE, United States
District Judge.
OPINIONBY: JAMES D. WHITTEMORE
OPINION:
ORDER
BEFORE THE COURT is Plaintiffs' Motion for
Temporary Restraining Order (Dkt. 2). In their motion,
Plaintiffs seek an order directing Defendants to Schiavo
and Hospice to transport Theresa Schiavo to Morton Plant
Hospital for any necessary medical treatment to sustain her
life and to reestablish her nutrition and hydration. This
action and Plaintiffs' motion were filed in response to an
order of Pinellas County Probate Judge George W. Greer
directing Defendant Schiavo, Theresa Schiavo's husband
and plenary guardian, to discontinue her nutrition and
hydration.
The court [*3] conducted a hearing on Plaintiffs'
motion after notice to Defendants. Upon consideration,
Plaintiffs' Motion for Temporary Restraining Order is
denied.
Plaintiffs, the parents of Theresa Marie Schindler
Schiavo, brought this action pursuant to a Congressional
Act signed into law by the President during the early
morning hours of March 21, 2005. n1 The Act, entitled "An
Act for the relief of the parents of Theresa Marie Schiavo,"
provides that the:
United States District Court for the Middle
District of Florida shall have jurisdiction to
hear, determine, and render judgment on a
suit or claim by or on behalf of Theresa
Marie Schiavo for the alleged violation of
Page 24
APPENDIX TO THE MAJORITY OPINION
24
any right of Theresa Marie Schiavo under
the Constitution or laws of the United States
relating to the withholding or withdrawal of
food, fluids, or medical treatment necessary
to sustain life.
n1 Pub. L. No. 109-3 (March 21, 2005).
Jurisdiction and Standing
The federal district courts are courts of limited
jurisdiction, "empowered [*4] to hear only those cases . .
. which have been entrusted to them by a jurisdictional
grant authorized by Congress." University of S. Ala. v.
American Tobacco Co., 168 F.3d 405, 409 (11th Cir.
1999) (quoting Taylor v. Appleton, 30 F.3d 1365, 1367
(11th Cir. 1994)). The plain language of the Act establishes
jurisdiction in this court to determine de novo "any claim of
a violation of any right of Theresa Schiavo within the scope
of this Act." The Act expressly confers standing to
Plaintiffs as her parents to bring any such claims. There can
be no substantial question, therefore, that Plaintiffs may
bring an action against a party to the state court
proceedings in this court for claimed constitutional
deprivations or violations of federal law occasioned on
their daughter relating to the withholding or withdrawal of
food, fluids, or medical treatment necessary to sustain her
life. Whether the Plaintiffs may bring claims in federal
court is not the issue confronting the court today, however.
The issue confronting the court is whether temporary
injunctive relief is warranted.
Applicable Standards
While there may be substantial issues concerning [*5]
the constitutionality of the Act, for purposes of considering
temporary injunctive relief, the Act is presumed to be
constitutional. Benning v. Georgia, 391 F.3d 1299, 1303
(11th Cir. 2004).
The purpose of a temporary restraining order, like a
preliminary injunction, is to protect against irreparable
injury and preserve the status quo until the district court
renders a meaningful decision on the merits. Canal Auth. of
State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir.
1974). A district court may grant a preliminary injunction
only if the moving party shows that:
(1) it has a substantial likelihood of success
on the merits;
(2) irreparable injury will be suffered unless
the injunction issues;
(3) the threatened injury to the movant
outweighs whatever damage the proposed
injunction may cause the opposing party;
and
(4) if issued, the injunction would not be
adverse to the public interest.
Page 25
APPENDIX TO THE MAJORITY OPINION
25
Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097
(11th Cir. 2004); Suntrust Bank v. Houghton Mifflin Co.,
268 F.3d 1257, 1265 (11th Cir. 2001). A preliminary
injunction is "an extraordinary [*6] and drastic remedy"
and is "not to be granted unless the movant 'clearly
established the burden of persuasion' as to the four
prerequisites." United States v. Jefferson County, 720 F.2d
1511, 1519 (11th Cir. 1983) (quoting Canal Auth. of State
of Florida, 489 F.2d at 573). n2
n2 The Act does not address the traditional
requirements for temporary injunctive relief.
Accordingly, these standards control whether
temporary injunctive relief is warranted,
notwithstanding Congress' intent that the federal
courts determine de novo the merits of Theresa
Schiavo's claimed constitutional deprivations.
It is apparent that Theresa Schiavo will die unless
temporary injunctive relief is granted. This circumstance
satisfies the requirement of irreparable injury. Moreover,
that threatened injury outweighs any harm the proposed
injunction would cause. To the extent Defendants urge that
Theresa Schiavo would be harmed by the invasive
procedure reinserting the feeding tube, this court finds [*7]
that death outweighs any such harm. Finally, the court is
satisfied that an injunction would not be adverse to the
public interest. Notwithstanding these findings, it is
essential that Plaintiffs establish a substantial likelihood of
success on the merits, which the court finds they have not
done.
The first of the four prerequisites to temporary
injunctive relief is generally the most important. Gonzalez
v. Reno, No. 00-11424-D, 2000 WL 381901 at *1 (11th Cir.
April 19, 2000). The necessary level or degree of
possibility of success on the merits will vary according to
the court's assessment of the other factors. Ruiz v. Estelle,
650 F.2d 555, 565 (5th Cir. 1981) (citing with auth.
Washington Metro. Area Transit Comm 'n v. Holiday
Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841, 843
(D.C. Cir. 1977)).
A substantial likelihood of success on the merits
requires a showing of only likely or probable, rather than
certain, success. Home Oil Company, Inc. v. Sam's East,
Inc., 199 F. Supp. 2d 1236, 1249 (M.D. Ala. 2002)
(emphasis in original); see also Ruiz, 650 F.2d at 565.
"Where the 'balance [*8] of the equities weighs heavily in
favor of granting the [injunction],' the movant need only
show a 'substantial case on the merits.'" Garcia-Mir v.
Meese, 781 F.2d 1450, 1453 (11th Cir. 1986) (citing Ruiz,
650 F.2d at 565).
This court has carefully considered the Act and is
mindful of Congress' intent that Plaintiffs have an
opportunity to litigate any deprivation of Theresa Schiavo's
federal rights. The Court is likewise mindful of Congress'
directive that a de novo determination be made
"notwithstanding any prior State court determination." In
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APPENDIX TO THE MAJORITY OPINION
26
resolving Plaintiffs' Motion for Temporary Restraining
Order, however, the court is limited to a consideration of
the constitutional and statutory deprivations alleged by
Plaintiffs in their Complaint and motion. Because Plaintiffs
urge due process violations are premised primarily on the
procedures followed and orders entered by Judge Greer in
his official capacity as the presiding judge in the dispute
between Michael Schiavo and Plaintiffs, their Complaint
necessarily requires a consideration of the procedural
history of the state court case to determine whether there is
a showing of any due process [*9] violations. On the face
of these pleadings, Plaintiffs have asserted five
constitutional and statutory claims. To obtain temporary
injunctive relief, they must show a substantial likelihood of
success on at least one claim. n3
n3 Plaintiffs have submitted affidavits of health
care professionals regarding Theresa's medical
status, treatment techniques and therapies which are
available and their opinions regarding how and
whether these treatments might improve Theresa's
condition. Plaintiffs have not, however, discussed
these affidavits in their papers and how they relate
to the claimed constitutional deprivations.
A. Count I - Violation of Fourteenth Amendment
Due Process Right to a Fair and Impartial Trial
Plaintiffs allege in Count I that Theresa Schiavo's
Fourteenth Amendment right to a fair and impartial trial
was violated, contending that the presiding judge "became
Terri's health care surrogate" and "also purported to act as
an impartial trial judge in the same proceeding." (Dkt. 1,
PP 47-48). They [*10] allege that once he "became an
advocate for Terri's death, it became impossible for Judge
Greer to maintain his role as an impartial judge in order to
review his own decision that Terri would want to die."
(Dkt. 1, P 49). Finally, they allege that "Judge Greer's dual
and simultaneous role as judge and health-care surrogate
denied Terri a fair and impartial trial." (Dkt. 1, P 50).
These contentions are without merit.
Florida's statutory scheme, set forth in Chapter 765,
contemplates a process for designation of a proxy in the
absence of an executed advance directive and provides for
judicial resolution of disputes arising concerning decisions
made by the proxy. See Fla. Stat. § 765.401(1). Where a
decision by the proxy is challenged by the patient's other
family members, it is appropriate for the parties to seek
"expedited judicial intervention." Fla. Slat. § 765.105.
Applying this statutory scheme, the state court appointed
Michael Schiavo, Theresa Schiavo's husband, as plenary
guardian and proxy for Theresa. Thereafter, a dispute arose
between Michael Schiavo and Plaintiffs concerning
whether to continue Theresa on artificial life support, and
Judge Greer, the presiding [*11] judge, was called upon to
resolve that dispute.
Florida's statutory scheme contemplates a judicial
resolution of these competing contentions. See In re
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APPENDIX TO THE MAJORITY OPINION
27
Guardianship of Browning, 568 So. 2d 4, 16 (Fla. 1990).
As the Florida Second District Court of Appeal explained,
where two "suitable surrogate decision-maker[s] . . .could
not agree on the proper decision, ..." the guardian may
invoke "the trial court's jurisdiction to allow the trial court
to serve as the surrogate decision-maker." In re
Guardianship of Schiavo, 780 So. 2d 176, 178 (Fla. Dist.
Ct. App. 2001) ("Schiavo I"). Pursuant to Florida law,
therefore, Judge Greer, as the presiding judge, had a
statutory obligation to resolve the competing contentions
between Michael Schiavo and Plaintiffs. Fla. Stat. §
765.105.
Plaintiffs offer no authority for their contention that
Judge Greer compromised the fairness of the proceeding or
the impartiality of the court by following Florida law and
fulfilling his statutory responsibilities under Chapter 765 as
presiding judge and decision-maker. n4 Plaintiffs' argument
is that Judge Greer could not fulfill his judicial duties
impartially while at [*12] the same time fulfilling his
statutory duty to resolve the competing contentions of the
parties as surrogate or proxy "to make decisions about lifeprolonging
procedures." In re Guardianship of Schiavo,
No. 2D05-968, 2005 WL 600377 at *4 (Fl. Ct. App. March
16, 2005) ("Schiavo VI").
n4 During argument, Plaintiffs' counsel
explained their criticism of Judge Greer's official
actions as Judge Greer having exceeded his lawful
authority by acting as a guardian contrary to Fla.
Stat. § 744.309(1)(b). Contrary to Plaintiffs'
argument, § 744.309 merely prohibits a judge from
acting as a guardian except under certain specified
familial circumstances.
Plaintiffs' argument effectively ignores the role of the
presiding judge as judicial fact-finder and decision-maker
under the Florida statutory scheme. By fulfilling his
statutory judicial responsibilities, the judge was not
transformed into an advocate merely because his rulings are
unfavorable to a litigant. Plaintiffs' contention that the
statutory [*13] scheme followed by Judge Greer deprived
Theresa Schiavo of an impartial trial is accordingly without
merit. Defendant is correct that no federal constitutional
right is implicated when a judge merely grants relief to a
litigant in accordance with the law he is sworn to uphold
and follow. This Court concludes that Plaintiffs cannot
establish a substantial likelihood of success on the merits of
Count I.
B. Count II - Violation of Fourteenth Amendment
Procedural Due Process Rights
In Count II, Plaintiffs contend that Theresa Schiavo's
Fourteenth Amendment procedural due process rights were
violated by Judge Greer's (1) failure to appoint a guardian
ad litem (Dkt. 1, P 53), (2) failure to appoint an
independent attorney to represent Theresa Schiavo's legal
rights (Dkt. 1, P 54) and (3) denial of what Plaintiffs
describe as "access to court" by his "failure to ever meet
Terri personally" and failure to "personally assess Terri's
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APPENDIX TO THE MAJORITY OPINION
28
level of cognition and her responsiveness" (Dkt. 1, P 55).
Initially, the Court finds no authority recognizing as a
matter of federal constitutional or statutory right that a state
trial judge is required to "personally assess" a ward's "level
of cognition [*14] and ...responsiveness." Fla. Stat. §
744.3725, on which Plaintiffs rely, is applicable to an
action seeking to commit the ward to a facility and other
circumstances not relevant to this case. Plaintiffs'
conclusory allegation that Judge Greer denied Theresa
Schiavo access to court by not requiring her presence is
without merit.
With respect to Plaintiffs' contention that Judge Greer
violated Theresa Schiavo's procedural due process rights by
failing to appoint a guardian ad litem, the record belies this
contention. In June, 1998, Judge Rives sua sponte
appointed Richard L. Pearse, Jr., Esq. as guardian ad litem
"for the purpose of reviewing the request for termination of
life support on behalf of the wards [sic]." In re
Guardianship of Schiavo, No. 90-2908-GD-003 (Pinellas
Cty. Circ. Ct., June 11, 1998). The record reflects that
attorney Pearse "fully complied with his June 11, 1998
Court Order of appointment" and was accordingly
discharged on June 16, 1999 by Judge Boyer of the Pinellas
County Circuit Court. Pearse served as guardian ad litem
for one year and ultimately testified as a witness in the trial
before Judge Greer. In re Guardianship of Schiavo, [*15]
No. 90-2908-GD-003 (Pinellas Cty. Circ. Ct., Feb. 28,
2000). n5 Accordingly, assuming Fourteenth Amendment
procedural due process requires the appointment of a
guardian ad litem, there would be no constitutional
deprivation here because three guardians ad litem were
appointed to represent Theresa Schiavo's interests over the
course of the litigation.
n5 The record also reveals that attorney John
H. Pecarek was appointed as guardian ad litem
early in the proceedings. In re Guardianship of
Schiavo, No. 90-2908-GD-003 (Pinellas Cty. Circ.
Ct., Feb. 17, 1994). Late in the litigation, at the
request of Florida Governor Jeb Bush, Pinellas
County Chief Judge David Demers also appointed
attorney Jay Wolfson, M.D. as guardian ad litem.
Schiavo VI, 2005 WL 600377 at *1, n. 2.
Plaintiffs' last contention is that Theresa Schiavo's
procedural due process rights were violated by Judge
Greer's refusal to appoint an independent attorney to
represent her interests. The due process clause is [*16]
implicated when there is a "deprivation of life, liberty or
property at the hands of the government." Grayden v.
Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003). If one or
more of these constitutionally protected interests is at stake,
as they undoubtedly are in this case, the due process clause
requires notice and the opportunity to be heard. Id. "It is .
. . fundamental that the right to notice and an opportunity to
be heard must be granted at a meaningful time and in a
meaningful manner." Fuentes v. Cortes, 407 U.S. 67, 80
(1972). Unquestionably, in some circumstances, a
Page 29
APPENDIX TO THE MAJORITY OPINION
29
meaningful opportunity to be heard includes the right to be
represented by counsel. However, "due process is a flexible
concept that varies with the particular circumstances of
each case, and to determine the requirements of due process
in a particular situation we must apply the balancing test
articulated in Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed.
2d 18 (1976)." Grayden, 345 F.3d at 1232-33.
The Mathews balancing test requires consideration of
three distinct factors: "First, the private interest that will be
affected by the official [*17] action; second, the risk of an
erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and finally,
the Government's interest, including the function involved
and the fiscal and administrative burdens that the additional
or substitute procedural requirement would entail."
Mathews, 424 U.S. at 335.
The first factor weighs the interest at stake. Plaintiffs
urge that Theresa Schiavo's life is at stake, while Defendant
argues that her liberty to exercise her right to refuse
medical treatment is the interest being adjudicated. In either
case, a fundamental and important interest is implicated in
the court proceedings determining the removal of artificial
life support.
The second Mathews factor requires consideration of
the risk of erroneous deprivation under the procedures used
and the probable value of the additional protections urged
by the Plaintiffs. Theresa Schiavo's case has been
exhaustively litigated, including an extensive trial, followed
by another "extensive hearing at which many highly
qualified physicians testified" to reconfirm that no
meaningful treatment [*18] was available, and six appeals.
As the Florida Second District Court of Appeal stated,
"few, if any, similar cases have ever been afforded this
heightened level of process." Schiavo VI, 2005 WL 600377
at *3.
Throughout the proceedings, the parties, represented
by able counsel, advanced what they believed to be Theresa
Schiavo's intentions concerning artificial life support. In
Florida, counsel for Michael Schiavo as Theresa Schiavo's
guardian owed a duty of care to Theresa Schiavo in his
representation. Op. Atty. Gen. 96-94 (November 20, 1996).
Finally, with respect to presenting the opposing perspective
on Theresa Schiavo's wishes, the Court cannot envision
more effective advocates than her parents and their able
counsel. Plaintiffs have not shown how an additional
lawyer appointed by the court could have reduced the risk
of erroneous rulings.
With regard to the third factor, without question the
state of Florida has an interest in the welfare of its citizens
and in the legal process for adjudicating disputed claims
such as were presented to Judge Greer in this case, as
evidenced by Florida's well defined statutory scheme. The
court's inherent authority to appoint [*19] a guardian ad
litem, consult independent experts or appoint an attorney if
warranted protects the state's interest.
Balancing the three factors, this court concludes that
Theresa Schiavo's life and liberty interests were adequately
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APPENDIX TO THE MAJORITY OPINION
30
protected by the extensive process provided in the state
courts. Defendant Michael Schiavo and Plaintiffs, assisted
by counsel, thoroughly advocated their competing
perspectives on Theresa Schiavo's wishes. Another lawyer
appointed by the court could not have offered more
protection of Theresa Schiavo's interests. Accordingly,
Plaintiffs have not established a substantial likelihood of
success on the merits on Count II.
C. Count Three - Violation of Fourteenth
Amendment Right to Equal Protection of the Law
For the same reasons relief under Count I was not
appropriate, the relief sought in Count III via the equal
protection clause is without merit. Plaintiff has not
established a substantial likelihood of success on the merits
of the claims set forth in Count III. See Cruzan v. Missouri
Dept. of Health, 497 U.S. 261, 287 n.12, 111 L. Ed. 2d 224
(1990) ("The differences between the choice made by a
competent person to refuse [*20] medical treatment, and
the choice made for an incompetent person by someone
else to refuse medical treatment, are so obviously different
that the State is warranted in establishing rigorous
procedures for the latter class of cases which do not apply
to the former class.") (emphasis in original).
D. Counts IV and V - Violation of Religious Land
Use and Institutionalized Persons Act (RLUIPA) and
Violation of First Amendment Free Exercise of Religion
Clause
Plaintiffs bring Counts IV and V alleging that Theresa
Schiavo's right to exercise her religion has been burdened
by the state court's order to remove the feeding tube. With
respect to Count IV of the Complaint, Plaintiffs allege a
claim under the Religious Land Use and Institutionalized
Persons Act (42 U.S.C. § 2000cc-1), claiming that her
rights to free exercise of her religion have been burdened
by the state court's order authorizing removal of her feeding
tube in that removal of the feeding tube "imposes a
substantial burden on Terry's religious free exercise." That
statute expressly requires, however, that "no government
shall impose a substantial burden on the religious exercise
of [*21] a person . . ." 42 U.S.C. § 2000cc(a) (emphasis
added).
In Count V, Plaintiffs make a similar contention under
the 42 U.S.C. § 1983 and the free exercise clause, alleging
that "Terry's religious beliefs are burdened" by execution of
order "in that Terry is being forced to engage in an activity
contrary to the tenets of her Roman Catholic faith . . . ."
Plaintiffs allege that Defendants have a constitutional duty
to accommodate "Terry's sincerely-held religious beliefs."
Undoubtedly, Terry Schiavo enjoys, by virtue of 42
U.S.C. § 2000-cc(a), a statutorily protected right not to
have substantial burdens placed on her religious exercise by
the government. The plain language of the statute prohibits
government from imposing a substantial burden on the
religious exercise of an individual such as Theresa Schiavo.
Similarly, the Free Exercise Clause contained in the First
Amendment of the Constitution expressly protects the
exercise of religion. In their Complaint, Plaintiffs allege
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APPENDIX TO THE MAJORITY OPINION
31
that the state court's order imposes a substantial burden on
Theresa Schiavo's free exercise of religion. (Complaint, P
67).
In order [*22] to succeed on either claim, however,
Plaintiffs must establish that the Defendants were state
actors. Plaintiffs' claims fail because neither Defendant
Schiavo nor Defendant Hospice are state actors. Moreover,
the fact that the claims were adjudicated by a state court
judge does not provide the requisite state action for
purposes of the statute or the Fourteenth Amendment. See
Harvey v. Harvey, 949 F.2d 1127, 1133-34 (11th Cir.
1992)("Use of the courts by private parties does not
constitute an act under color of state law."); Torres v. First
State Bank of Sierra County, 588 F.2d 1322, 1326-27 (10th
Cir. 1978)("We do not think that the 'color of law' reference
in § 1983 was intended to encompass a case such as this
one, where the only infirmities are the excesses of the court
order itself, . . . subject to the normal processes of
appeal."); see also Dahl v. Akin, 630 F.2d 277, 281 (5th
Cir. 1980).
This court appreciates the gravity of the consequences
of denying injunctive relief. Even under these difficult and
time strained circumstances, however, and notwithstanding
Congress' expressed interest in the welfare of Theresa
Schiavo, [*23] this court is constrained to apply the law to
the issues before it. As Plaintiffs have not established a
substantial likelihood of success on the merits, Plaintiffs'
Motion for Temporary Restraining Order (Dkt. 2) must be
DENIED.
DONE AND ORDERED in chambers this 22nd day
of March, 2005.
JAMES D. WHITTEMORE
United States District Judge
32
This can now be appealed to the entire 11th as a whole, right? Or is that up to the three-judge panel to direct?
I can translate this decision out of Atlanta into just a few words:
We are no longer a nation of laws. We are now ruled by judges who are free to decree who shall live, and who shall die, and their decisions are final.
These judges have not only affirmed the death of Terri Schiavo, they have confirmed the death of our Republic.
I would ordinarily say 'May God have Mercy upon us', but I fear that He will do no such thing now.
America is toast.
Ecc 3:16 And moreover I saw under the sun the place of judgment, [that] wickedness [was] there; and the place of righteousness, [that] iniquity [was] there.
Ecc 3:17 I said in mine heart, God shall judge the righteous and the wicked: for [there is] a time there for every purpose and for every work.
There is going to be a real passion to reshape the courts after this.
I think the one thing this case has done is present to the people what a bunch of asses lots of judges are.
This is going to not go away and will blow up like illegal immigration and the Democrats will for the most part lose more because of this.
Why do the Democrats lose with this?
Because at every turn they have backed the culture of death against life.
So what can the Democrats use as a defense?
Dems can only say:"What are you going to trust, us or your lying ears"?
I also wouldn't want to spend the rest of my life as Terri's husband, from the national passion of this, he's going to get hounded over this IMO until he passes himself some distant day.
>>I think the first question and only question should be is Terri a PVS case?(persistent vegetative state ).If she is not than this is murder<<
With immediate cremation ordered after her death, we probably will never know. If the courts won't act to save her life, why would they act to determine the facts involved afterwards?
It doesn't matter who appoints the judges. You will get either a Democrat dictator or a Republican dictator.
When I was weighing the words of Greer, Felos, etc , something haunting came to me. Osama Bin laden had quoted Khalid ibn al-Walid as saying "you will be conquered against your will by men who love death as you love life."
We will soon prove him right.
Although I don't practice before the 11th Circuit, I believe they can either appeal to the full 11th Circuit en banc or to the U.S. Supremes. If memory serves correct, Kennedy (I want to be loved by the NY Times and Washington Post) is assigned to this region for SCOTUS. If at least 4 members of SCOTUS want to hear the case, Kennedy should issue temporary relief (feeding resumed). I'm not convinced there are even 3 votes for SCOTUS to hear the case. I'm guessing Scalia, Thomas...and maybe Rehnquist.
Terri will die because her attys didn't handle this well.
I agree that, politically, for the liberals, this all relates back to abortion.
As to your other point, even if Terri is a PVS case, I think this is murder because even if she is PVS, I think it must still be her (Terri's) desire to have the feeding tube disconnected. Since she did not have a living will, or anything else in writing, the Court accepted the testimony of her so-called "husband", her husband's brother and, I think, the brother's wife as proof of what Terri would want. In light of all the facts (ie, that Michael has lived with another woman for ten years and has two children with her)---taking their testimony as proof is, IMO, criminal.
As President Bush said, if we are to err, we should err on the side of life.
You are right. This is so ridiculous it's not funny. There are no complexities here, none whatsoever. Terri's "husband" wants her dead and Terri's immediate family does not. That's it. Case closed.
The judges(lawyers) that have so far been involved with this case have either been "pro euthanasia" and/or Clinton appointees. You have 3-4 people "voting" on such an explosive issue. I know you can't have a general election over this but at the very least there should be an attempt to provide "level plaing field".
Who fixed it, and why?
Isa 41:17 [When] the poor and needy seek water, and [there is] none, [and] their tongue faileth for thirst, I the LORD will hear them, I the God of Israel will not forsake them.
Isa 41:18 I will open rivers in high places, and fountains in the midst of the valleys: I will make the wilderness a pool of water, and the dry land springs of water.
Isa 41:19 I will plant in the wilderness the cedar, the shittah tree, and the myrtle, and the oil tree; I will set in the desert the fir tree, [and] the pine, and the box tree together:
Isa 41:20 That they may see, and know, and consider, and understand together, that the hand of the LORD hath done this, and the Holy One of Israel hath created it.
Thanks ;-)
This really hurts. Yes it can be appealed and it was a very strong descension, but no one thinks the Supreme Court will hear it, but it's not over till it's over.
The U.S. Justice Dept is in the middle of this deal with both feet, and options still exist.........
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