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SCHI AV O SCHINDLER v . SCHIAV O
United States Cour t of Appeals,Ele venth Cir cuit.
Theresa Marie Schindler SCHI AV O, incapacitated ex r el., Robert SCHINDLER and
Mary Schindler , her parents and next friends, Plaintiffs-A ppellants, v. Michael
SCHIAV O, as guar dian of the person of Theresa Marie Schindler Schia vo,
incapacitated, Judge Geor ge W. Greer, The Hospice of the Florida Suncoast, Inc.,
Def endants-A ppellees.
No. 05-11556.
Decided: Mar ch 23, 2005
Before CARNES, HULL and WILSON, Cir cuit Judges. David C. Gibbs, III, Gibbs Law Firm, P .A.,
Seminole, FL, for Plaintiffs-Appellants. Geor ge James Felos, Felos & F elos, P.A., Dunedin, FL, for
Defendants-Appellees.
Plaintiffs ha ve appealed the district cour t's denial of their motion for a tempor ary r estr aining
order t o requir e the def endants t o transpor t Ther esa Marie Schindler Schia vo t o a hospital t o
reestablish nutrition and hy dration and for any medical tr eatment necessary to sustain her lif e,
and to requir e the state cour t judge defendant to rescind his F ebruary 25, 2005 or der directing
remo val of nutrition and hy dration fr om Schia vo and t o restr ain him fr om issuing any fur ther
orders that would discontinue nutrition and hy dration. After notice and a hearing, the district
cour t enter ed a car eful order which is attached as an Appendix t o this opinion. Plaintiffs have
also petitioned this Cour t to gr ant the same injunctiv e relief under the All W rits Act, 28 U.S.C. §
1651(a).
Although we or dinarily do not ha ve jurisdiction o ver appeals fr om orders gr anting or denying
tempor ary r estr aining or ders, in cir cumstances such as these, “ when a grant or denial of a TRO
might have a serious, perhaps irr eparable, consequence, and can be eff ectually challenged only
by immediate appeal, we ma y exercise appellate jurisdiction. ” Ingr am 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 cir cumstances we tr eat temporary r estr aining or ders
as equivalent to preliminar y injunctions or nal judgments, either of which ar e appealable. See
28 U.S.C. §§ 1291 & 1292(a)(1).
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The district cour t correctly stated the four fact ors to be consider ed in determining whether
temporary r estr aining or pr eliminary injunctiv e relief is t o be granted, which ar e whether the
movant has established: (1) a substantial likelihood of success on the merits; (2) that
irrepar able injur y will be suff ered if the r elief is not gr anted; (3) that the thr eatened injury
outweighs the harm the r elief would inict on the non-mo vant; and (4) that entr y of the relief
would ser ve the public inter est. See Ingr am, 50 F.3d at 900; Siegel v. LePore, 234 F .3d 1163,
1176 (11th Cir .2000) (en banc). Requests for emer gency injunctive relief ar e not uncommon in
feder al cour t and sometimes inv olve decisions aff ecting life and death. Controlling pr ecedent
is clear that injunctiv e relief ma y not be gr anted 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 F und, Inc., 527 U.S. 308, 339, 119 S.Ct. 1961, 1978, 144 L.E d.2d 319
(1999) (“Plaintiffs with questionable claims would not meet the lik elihood of success criterion.”).
Applying those factors, the district cour t determined that the last thr ee weighed in favor of
gr anting the tempor ary r estr aining or der. The cour t reasoned that because those thr ee factors
were met, plaintiffs only had t o 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.
While the district cour t conducted de novo r eview of plaintiffs' claims, we r eview the district
cour t's denial of tempor ary injunctiv e relief only for an abuse of discr etion. This scope of r eview
will lead t o reversal only if the district cour t applies an incorrect legal standard, or applies
improper pr ocedures, or relies on clearly err oneous factnding, or if it r eaches a conclusion that
is clearly unreasonable or incorr ect. Klay v. United Healthgr oup, Inc., 376 F.3d 1092, 1096 (11th
Cir.2004); Chicago Tribune Co. v . Bridgest one/Fir estone, Inc., 263 F .3d 1304, 1309 (11th
Cir.2001). Short of that, an abuse of discr etion standard recogniz es there is a range of choice
within which we will not r everse the district cour t even if we might ha ve r eached a diff erent
decision. See McMahan v . T ot o, 256 F .3d 1120, 1128 (11th Cir .2001); Rasbury v. Internal
Revenue Ser v. (In r e Rasbur y), 24 F.3d 159, 168-69 (11th Cir .1994).
For the r easons explained in the district cour t's opinion, we agr ee that the plaintiffs ha ve failed
to demonstr ate a substantial case on the merits of any of their claims. We also conclude that
the district cour t's car efully thought-out decision t o deny temporary r elief in these cir cumstances
is not an abuse of discr etion.
The principal theme of plaintiffs' ar gument against the district court's denial of a tempor ary
restr aining or der is that Pub. L. No. 109-3, which Congr ess enacted to enable them t o bring this
lawsuit, mandates that injunctiv e relief be gr anted to enable them t o have a full trial on the merits
of their claims. Pub. L. No. 109-3 is an extr aordinar y piece of legislation, and it does many
things. Defendants contend that the legislation is so extr aordinar y that it is unconstitutional in
sever al r espects. We need not decide that question. For purposes of determining whether
tempor ary or pr eliminar y injunctiv e relief is appr opriate, we indulge the usual pr esumption that
congressional enactments ar e constitutional. United States v. Morrison, 529 U.S. 598, 607, 120
S.Ct. 1740, 1748, 146 L.E d.2d 658 (2000); Benning v. Georgia, 391 F .3d 1299, 1303 (11th
Cir.2004). It is enough for pr esent purposes that in enacting Pub.L. No. 109-3 Congr ess did not
alter for purposes of this case the long-standing general law governing whether tempor ary
restr aining or ders or pr eliminary injunctions should be issued b y feder al cour ts.
There is no pr ovision in Pub. L. No. 109-3 addr essing whether or under what conditions the
district court should grant tempor ary or pr eliminar y relief in this case. Ther e is no mor e reason
in the text of the Act t o read in any special rule about tempor ary or pr eliminar y relief than ther e
would be to read in a special rule about deciding the case befor e trial on Fed.R.Civ.P. 12(b)(6) or
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summary judgment gr ounds. Not only that, but Congr ess considered and specically r ejected
provisions that would ha ve mandated, or permitted with fa vor able implications, the gr ant of the
pretrial sta y. Ther e is this enlightening ex change in the legislative history concerning the Senate
bill that was enacted:
Mr . LEVIN. Mr. Pr esident, I rise t o seek clarication fr om the majority leader about one aspect
of this bill, the issue of whether Congr ess has mandated that a Federal cour t issue a sta y
pending determination of the case.
Mr. FRIST . I would be pleased t o help clarify this issue.
Mr. LEVIN. Section 5 of the original v ersion of the Martinez bill conferred jurisdiction on a
Feder al cour t to hear a case lik e this, and then stated that the F ederal cour t “shall” issue a sta y of
State court proceedings pending determination of the F ederal case. I was opposed t o that
provision because I belie ve Congr ess should not mandate that a F ederal judge issue a sta y.
Under longstanding law and pr actice, the decision to issue a stay is a matter of discr etion for the
Feder al judge based on the facts of the case. The majority leader and the other bill sponsors
accepted my suggestion that the wor d “shall” in section 5 be changed t o “ma y.”
The v ersion of the bill we ar e now considering strik es section 5 altogether. Although nothing in
the text of the new bill mandates a sta y, the omission of this section, which in the earlier Senate-
passed bill made a sta y permissive, might be r ead to mean that Congr ess intends to mandate a
stay. I belie ve that r eading is incorr ect. The absence of any state [sic] pr ovision in the new bill
simply means that Congr ess relies on curr ent law. Under curr ent law, a judge ma y decide
whether or not a sta y is appropriate.
Does the majority leader shar e my understanding of the bill?
Mr. FRIST . I shar e the understanding of the Senat or from Michigan, as does the junior Senat or
from Florida who is the chief sponsor of this bill. Nothing in the current bill or its legislativ e
history mandates a sta y. I would assume, howe ver , the F ederal cour t would gr ant a stay based
on the facts of this case because Mrs. Schia vo would need t o be alive in order for the cour t to
mak e its determination. Never theless, this bill does not change curr ent law under which a stay
is discretionary.
Mr . LEVIN. In light of that assur ance, I do not object t o the unanimous consent agr eement
under which the bill will be consider ed by the Senate. I do not make the same assumption as
the majority leader mak es about what a Federal cour t will do. Because the discr etion of the
Feder al cour t is left unr estricted in this bill, I will not ex ercise my right t o block its consider ation.
151 Cong. Rec. S3099-100 (daily ed. Mar . 20, 2005) (colloquy between Sens. Levin & Frist).
This enlightening ex change does not contr adict the plain meaning of Pub. L. No. 109-3, but
instead reinforces it. Plainly, Congress knew how t o change the law t o favor these plaintiffs t o
the extent that it collectiv ely wished to do so. That is what the changes it did mak e, including
those to standing law , the Rooker-Feldman doctrine, and abstention, demonstr ate. When
Congr ess explicitly modies some pr e-existing rules of law applicable t o a subject but says
nothing about other rules of law , the only reasonable r eading is that Congr ess meant no change
in the rules it did not mention. The dissent char acterizes the language of the Act as clear . It is
on this point: the language of the Ac t clearly does not purpor t to change the law concerning
issuance of tempor ary or pr eliminar y relief. 5 /
To interpr et Pub. L. No. 109-3 as r equiring that temporary or pr eliminar y relief be enter ed
regar dless of whether it is warr anted under pre-existing law would go be yond r eading int o the Act
a provision that is not ther e. It would r equire us t o read int o the Act a pr ovision that Congr ess
deliberately removed in or der to clarify that pr e-existing law did go vern this issue.
Nor do we nd convincing plaintiffs' ar gument that in reaching its decision t o deny the motion for
a temporary r estr aining or der the district cour t violated Pub. L. No. 109-3 b y considering the
procedur al history of extensiv e state court litigation. The plaintiffs' complaint and other lings
in the district cour t asserted that the y had not been affor ded procedur al due pr ocess by the state
courts. Their pleadings and brief in the district cour t and this Court are replete with citations t o
and discussion about the state cour t proceedings and decisions. In deciding whether the
plaintiffs had shown a substantial case on the merits of their f ederal procedur al due pr ocess
claims, the district cour t had to consider the prior pr oceedings in state cour t. Ther e is no wa y
to consider a claim that the state cour t proceedings violated the Due Pr ocess Clause without
examining what those proceedings were. In obedience t o Pub. L. No. 109-3 the district cour t
considered the federal constitutional claims de no vo and made its own independent e valuation
of them.
Plaintiffs ha ve also mo ved this Cour t under the All W rits Act, 28 U.S.C. § 1651(a), for emergency
injunctive relief pending appeal, asking us t o order the same tempor ary or pr eliminar y relief that
we ha ve concluded the district cour t did not abuse its discretion in denying. The y are suppor ted
in that motion b y a Statement of Inter est led by the United States' Depar tment of Justice.
The All W rits Act pr ovides: “The Su preme Cour t and all cour ts established b y Act of Congress
may issue all writs necessar y or appropriate in aid of their r espective jurisdictions and agr eeable
to the usages and principles of law .” Id. The purpose of the power codied in that statute is t o
allow courts “to protect the jurisdiction the y already ha ve, deriv ed from some other sour ce.”
Kla y, 376 F .3d at 1099. It gives a “r esidual sour ce of authority t o issue writs that ar e not
otherwise co ver ed b y statute ” and is an “ extraordinar y remedy that ․ is essentially equitable and,
as such, not generally available t o provide alternativ es to other , adequate r emedies at law .” Id. at
1100 (internal quotes and citations omitted).
Our decisions mak e clear that where the relief sought is in essence a pr eliminary injunction,
the All W rits Act is not a vailable because other , adequate remedies at law exist, namely
Fed.R.Civ .P. 65, which pr ovides for tempor ary r estr aining or ders and pr eliminary injunctions.
See Fla. Med. Ass' n v. U.S. Dep 't of Health, E duc. & Welfare, 601 F .2d 199, 202-03 (5th Cir .1979)
(reversing the district cour t's gr ant of injunction under the All W rits Act because “Rule 65
provides sucient pr otection for the jurisdiction of the district cour t”); 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 pr eliminary injunction because “[i]t was issued t o preser ve the status quo and
pr event allegedly irr eparable injur y until the cour t had the oppor tunity to decide whether t o issue
a permanent injunction. ” Kla y, 376 F .3d at 1101 n. 13. The injunction being sought b y the
plaintiffs is another textbook example of an effor t to use the All W rits Act in order to circumv ent
the requir ements for pr eliminary injunctiv e relief. Granting the injunctiv e 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 W rits Act “does not
authorize a district cour t to pr omulgate an ad hoc pr ocedural code ”). Under our cir cuit law, the
All Writs Act cannot be used t o evade the r equirements for pr eliminary injunctions. Klay, 376
F .3d at 1101 n. 13. /
There is no denying the absolute tr agedy that has befallen Mrs. Schia vo. As the Florida Second
District Cour t of Appeals has obser ved, we all ha ve our own family , our own loved ones, and our
own childr en. Howe ver , we ar e called upon t o make a collectiv e, objective decision concerning
a question of law . In r e Guar dianship of Schia vo, 916 So.2d 814, 2005 WL 600377, at *4 (Fla. 2d
DCA Mar . 16, 2005). In the end, and no matter how much we wish Mrs. Schia vo had ne ver
suff ered such a horrible accident, we ar e a nation of laws, and if we are to continue t o be so, the
pre-existing and well-established f ederal law go verning injunctions as well as Pub.L. No. 109-3
must be applied t o 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 INJUNC TIVE RELIEF DENIED .
APPENDIX
THERESA M ARIE SCHINDLER SCHI AV O , Incapacitated ex r el., ROBERT SCHINDLER and M ARY
SCHINDLER, her P arents and Next F riends, Plaintiffs, vs. MICH AEL SCHIAV O , JUDGE GEORGE W .
GREER and THE HOSPICE OF THE FLORIDA SUNCO AST, INC., Def endants.Case No. 8:05-CV -530-
T-27TBMUNI TED STATES DISTRIC T COUR T FOR THE MIDDLE DISTRIC T OF FL ORIDA, TAMP A
DIVISION2005 U.S. Dist. LEXIS 4265Mar ch 22, 2005, Decided
COUNSEL: [*1] For Ther esa Marie Sc hindler Schiavo, incapacitated ex r el., Robert Schindler and
Mary Schindler , her parents and next friends, Plaintiff: David C. Gibbs, III, Gibbs Law Firm,
Seminole, FL; George E. Tragos, Law Oce of Geor ge E. Tragos, Clear water, FL; Rober t A.
Destro, Columbus School Of Law , Washingt on, DC.
For Michael Schia vo, as guar dian of the person of Theresa Marie Schindler Schia vo,
incapacitated, Def endant: George J. Felos, F elos & F elos, P.A., Dunedin, FL; Iris Bennett, Jenner &
Block LLC, Washingt on, DC; Randall C. Marshall, American Civil Liber ties Union Foundation of
Florida, Inc., Miami, FL; Rebecca H. Steele, ACLU F oundation of Florida, Inc., W est Central Florida
Oce, Tampa, FL; Robert M. Portma n, Jenner & Block, W ashington, DC; Thomas J. P errelli,
Jenner & Block, W ashington, DC.
For The Hospice of the Florida Suncoast, Inc., Def endant: Gail Golman Holtzman, Constangy ,
Brooks & Smith, LL C, Tampa, FL; John W. Campbell, Constangy , Brooks & Smith, LL C, Tampa, FL;
Robin G. Midulla, Robin Gr eiwe Midulla, P.A., Tampa, FL.
F or Liber ty Counsel, Inc., Amicus: Erik W . Stanle y, Liber ty Counsel, Longwood, FL.
For United States, Inter ested Party: Paul I. P erez, [*2] U.S. A ttorne y's Oce, Middle District of
Florida, Orlando, FL; Warr en A. Zimm erman, U.S. A ttorne y's Oce, Middle District of Florida,
T ampa, FL.
F or Mor ton Plant Hospital Association, Inc., Vict or E. Gambone, M.D., Morton Plant Mease
Primar y Care, Inc., Stant on P. T ripodis, M.D ., Interested P arties: James Addison Mar tin, Jr.,
MacF arlane F erguson & McMullen, Clear water, FL; Jeffrey W . Gibson, MacF arlane Ferguson &
McMullen, Clear water, FL.
Gordon W ayne W atts, Inter ested Party, Pr o se, Lak eland, FL.
JUDGES: JAMES D . WHITTEMORE, U nited States District Judge.
OPINION BY: JAMES D . WHITTEMOR E
OPINION:
6 /
ORDER
BEFORE THE COUR T is Plaintiffs' Motion for Tempor ary Restr aining Or der (Dkt.2). In their
motion, Plaintiffs seek an or der directing Def endants to Schiavo and Hospice t o transpor t
Theresa Schia vo t o Mor ton Plant Hospital for any necessar y medical treatment to sustain her lif e
and to reestablish her nutrition and hy dration. This action and Plaintiffs' motion wer e led in
response t o an order of Pinellas County Pr obate Judge George W. Greer dir ecting Def endant
Schiavo, Ther esa Schia vo 's husband and plenar y guardian, to discontinue her nutrition and
hydration.
The cour t [*3] conducted a hearing on Plaintiffs' motion after notice t o Defendants. Upon
consideration, Plaintiffs' Motion for Tempor ary Restr aining Or der is denied.
Plaintiffs, the par ents of Theresa Marie Schindler Schia vo, br ought this action pursuant t o a
Congressional Act signed int o law by the Pr esident during the early morning hours of Mar ch 21,
2005. n1. The Act, entitled “ An Act for the relief of the parents of Theresa Marie Schia vo, ”
pr ovides that the:
United States District Cour t for the Middle District of Florida shall ha ve jurisdiction t o hear,
determine, and r ender judgment on a suit or claim b y or on behalf of Theresa Marie Schia vo for
the alleged violation of any right of Theresa Marie Schia vo under the Constitution or laws of the
United States r elating to the withholding or withdr awal of food, uids, or medical tr eatment
necessary to sustain lif e.
n1. Pub. L. No. 109-3 (Mar ch 21, 2005).
Jurisdiction and Standing
The f ederal district cour ts are cour ts of limited jurisdiction, “ empowered [*4] to hear only those
cases ․ which ha ve been entrusted t o them by a jurisdictional gr ant authorized by Congr ess.”
Univ ersity of S. Ala. v . American Tobacco Co., 168 F .3d 405, 409 (11th Cir .1999) (quoting Taylor v .
Applet on, 30 F .3d 1365, 1367 (11th Cir .1994)). The plain language of the Act establishes
jurisdiction in this cour t to determine de no vo “ any claim of a violation of any right of Theresa
Schia vo within the scope of this Act. ” The Act expr essly confers standing t o Plaintiffs as her
parents t o bring any such claims. Ther e can be no substantial question, ther efore, that
Plaintiffs ma y bring an action against a par ty to the state cour t proceedings in this cour t for
claimed constitutional depriv ations or violations of federal law occasioned on their daughter
relating t o the withholding or withdr awal of food, uids, or medical tr eatment necessary to
sustain her lif e. Whether the Plaintiffs ma y bring claims in federal cour t is not the issue
confronting the cour t toda y, howe ver . The issue confr onting the court is whether tempor ary
injunctiv e relief is warr anted.
Applicable Standar ds
While there may be substantial issues concerning [*5] the constitutionality of the Act, for
purposes of considering tempor ary injunctiv e relief, the Act is pr esumed to be constitutional.
Benning v . Georgia, 391 F .3d 1299, 1303 (11th Cir .2004).
The purpose of a tempor ary r estr aining or der, lik e a pr eliminar y injunction, is t o protect against
irrepar able injur y and preserve the status quo until the district cour t 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 cour t may grant a pr eliminar y injunction only if the mo ving party shows
that: /
(1) it has a substantial lik elihood of success on the merits;
(2) irrepar able injur y will be suff ered unless the injunction issues;
(3) the thr eatened injur y to the mo vant outweighs whate ver damage the pr oposed injunction
may cause the opposing par ty; and
(4) if issued, the injunction would not be adv erse to the public inter est.
Klay v. United Healthgr oup, Inc., 376 F.3d 1092, 1097 (11th Cir .2004); Suntrust Bank v . Houghton
Miin Co., 268 F .3d 1257, 1265 (11th Cir .2001). A preliminar y injunction is “ an extraordinar y
[*6] and dr astic remedy ” and is “ not to be gr anted unless the mo vant ‘ clearly established the
burden of persuasion ’ as to the four pr erequisites. ” United States v . Jefferson County , 720 F.2d
1511, 1519 (11th Cir .1983) (quoting Canal A uth. of State of Florida, 489 F .2d at 573). n2.
n2. The Act does not addr ess the traditional r equirements for tempor ary injunctiv e relief.
Accor dingly, these standar ds control whether tempor ary injunctiv e relief is warr anted,
notwithstanding Congr ess' intent that the federal cour ts determine de no vo the merits of Theresa
Schia vo 's claimed constitutional depriv ations.
It is apparent that Theresa Schia vo will die unless tempor ary injunctiv e relief is gr anted. This
cir cumstance satises the r equirement of irr eparable injur y. Mor eover , that thr eatened injur y
outweighs any harm the pr oposed injunction would cause. T o the extent Def endants urge that
Theresa Schia vo would be harmed b y the invasive procedur e reinser ting the f eeding tube, this
court nds [*7] that death outweighs any such harm. Finally, the cour t is satised that an
injunction would not be adv erse to the public inter est. Notwithstanding these ndings, it is
essential that Plaintiffs establish a substantial lik elihood of success on the merits, which the
court nds the y have not done.
The rst of the four pr erequisites t o temporary injunctiv e relief is gener ally the most impor tant.
Gonzalez v. Reno, No. 00-11424-D , 2000 WL 381901 at *1 (11th Cir . April 19, 2000). The
necessar y level or degr ee of possibility of success on the merits will v ary accor ding to the cour t's
assessment of the other fact ors. Ruiz v . Estelle, 650 F .2d 555, 565 (5th Cir .1981) (citing with
auth. Washington Metr o. Area Transit Comm 'n v . Holida y Tours, Inc., 182 U.S.App. D .C. 220, 559
F.2d 841, 843 (D .C.Cir.1977)).
A substantial lik elihood of success on the merits r equires a showing of only lik ely or probable,
rather than cer tain, 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 hea vily in favor of gr anting the [injunction], ’ the movant need only
show a ‘ substantial case on the merits. ’ ” Gar cia-Mir v . Meese, 781 F .2d 1450, 1453 (11th
Cir.1986) (citing Ruiz, 650 F .2d at 565).
This court has carefully consider ed the Act and is mindful of Congr ess' intent that Plaintiffs have
an oppor tunity to litigate any depriv ation of Theresa Schia vo 's f eder al rights. The Cour t is
likewise mindful of Congr ess' directive that a de no vo determination be made “ notwithstanding
any prior State court determination.” In r esolving Plaintiffs' Motion for Tempor ary Restr aining
Order , howe ver , the cour t is limited t o a consider ation of the constitutional and statut ory
depriv ations alleged b y Plaintiffs in their Complaint and motion. Because Plaintiffs urge due
process violations ar e premised primarily on the pr ocedures followed and or ders entered by
Judge Gr eer in his ocial capacity as the pr esiding judge in the dispute between Michael
Schiavo and Plaintiffs, their Complaint necessarily r equires a consider ation of the pr ocedural
history of the state cour t case to determine whether ther e is a showing of any due pr ocess [*9] /
violations. On the face of these pleadings, Plaintiffs ha ve asser ted ve constitutional and
statutory claims. T o obtain tempor ary injunctiv e relief, the y must show a substantial lik elihood
of success on at least one claim. n3.
n3. Plaintiffs ha ve submitted ada vits of health care professionals r egarding Theresa's
medical status, tr eatment techniques and ther apies which are available and their opinions
regar ding how and whether these tr eatments might improve Ther esa's condition. Plaintiffs
have not, howe ver , discussed these ada vits in their papers and how the y relate t o the claimed
constitutional depriv ations.
A. Count I-Violation of F ourteenth Amendment Due Pr ocess Right to a Fair and Impar tial Trial
Plaintiffs allege in Count I that Theresa Schia vo 's F our teenth Amendment right t o a fair and
impartial trial was violated, contending that the pr esiding judge “became Terri' s health car e
surrogate ” and “ also purpor ted to act as an impar tial trial judge in the same pr oceeding.” (Dkt. 1,
PP 47-48). The y [*10] allege that once he “became an adv ocate for Terri' s death, it became
impossible for Judge Gr eer to maintain his r ole as an impartial judge in order to review his own
decision that Terri would want t o die.” (Dkt. 1, P 49). Finally, they allege that “Judge Gr eer's
dual and simultaneous r ole as judge and health-car e surrogate denied Terri a fair and impar tial
trial.” (Dkt. 1, P 50). These contentions ar e without merit.
Florida's statut ory scheme, set for th in Chapter 765, contemplates a pr ocess for designation of a
proxy in the absence of an ex ecuted advance directive and pr ovides for judicial r esolution of
disputes arising concerning decisions made b y the proxy . See Fla. Stat. § 765.401(1). Where
a decision b y the proxy is challenged b y the patient's other family members, it is appr opriate for
the parties to seek “ expedited judicial inter vention. ” Fla. Slat. § 765.105. Applying this
statutory scheme, the state cour t appointed Michael Schia vo, Ther esa Schia vo 's husband, as
plenar y guardian and pr oxy for Theresa. Ther eafter , a dispute ar ose between Michael Schia vo
and Plaintiffs concerning whether t o continue Theresa on ar ticial life suppor t, and Judge Gr eer,
the pr esiding [*11] judge, was called upon t o resolv e that dispute.
Florida 's statut ory scheme contemplates a judicial r esolution of these competing contentions.
See In re Guardianship of Br owning, 568 So.2d 4, 16 (Fla.1990). As the Florida Second District
Court of Appeal explained, wher e two “suitable surr ogate decision-mak er[s] ․ could not agree on
the proper decision, ․ ” the guardian may invoke “the trial cour t's jurisdiction t o allow the trial
court to ser ve as the surr ogate decision-mak er.” In r e Guar dianship of Schia vo, 780 So.2d 176,
178 (Fla.Dist.Ct.App.2001) (“Schia vo I”). Pursuant t o Florida law , therefore, Judge Gr eer, as the
presiding judge, had a statut ory obligation t o resolv e the competing contentions between
Michael Schia vo and Plaintiffs. Fla. Stat. § 765.105.
Plaintiffs off er no authority for their contention that Judge Gr eer compromised the fairness of
the proceeding or the impar tiality of the court by following Florida law and fullling his statut ory
responsibilities under Chapter 765 as pr esiding judge and decision-maker. n4. Plaintiffs'
argument is that Judge Gr eer could not fulll his judicial duties impar tially while at [*12] the
same time fullling his statutory duty t o resolv e the competing contentions of the par ties as
surrogate or pr oxy “t o mak e decisions about lif e-prolonging pr ocedures.” In r e Guar dianship of
Schiavo, No. 2D05-968, ---F .3d ----, ----, 2005 WL 600377 at *4 (Fl.Ct.App. Mar ch 16, 2005)
(“Schiavo VI”).
n4. During ar gument, Plaintiffs' counsel explained their criticism of Judge Gr eer's ocial
actions as Judge Gr eer having ex ceeded his lawful authority b y acting as a guardian contrary t o
Fla. Stat. § 744.309(1)(b). Contrary t o Plaintiffs' ar gument, § 744.309 mer ely prohibits a judge /
from acting as a guar dian except under cer tain specied familial cir cumstances.
Plaintiffs' argument effectively ignor es the role of the pr esiding judge as judicial fact-nder and
decision-mak er under the Florida statut ory scheme. By fullling his statut ory judicial
responsibilities, the judge was not tr ansformed into an advocate mer ely because his rulings ar e
unfavor able t o a litigant. Plaintiffs' contention that the statut ory [*13] scheme followed b y
Judge Greer depriv ed Ther esa Schia vo of an impar tial trial is accor dingly without merit.
Defendant is corr ect that no federal constitutional right is implicated when a judge mer ely grants
relief t o a litigant in accor dance with the law he is sworn t o uphold and follow. This Cour t
concludes that Plaintiffs cannot establish a substantial lik elihood of success on the merits of
Count I.
B. Count II-Violation of F ourteenth Amendment Pr ocedural Due Pr ocess Rights
In Count II, Plaintiffs contend that Theresa Schia vo 's F our teenth Amendment pr ocedural due
process rights wer e violated by Judge Greer's (1) failur e to appoint a guar dian ad litem (Dkt. 1, P
53), (2) failure to appoint an independent att orney to r epr esent Theresa Schia vo 's legal rights
(Dkt. 1, P 54) and (3) denial of what Plaintiffs describe as “ access to court” by his “failur e to e ver
meet Terri personally ” and failure to “ personally assess Terri' s level of cognition and her
responsiv eness” (Dkt. 1, P 55).
Initially, the Cour t nds no authority r ecognizing as a matter of f ederal constitutional or statut ory
right that a state trial judge is r equired to “personally assess” a war d's “le vel of cognition [*14]
and ․ responsiv eness.” Fla. Stat. § 744.3725, on which Plaintiffs r ely, is applicable t o an action
seeking to commit the war d to a facility and other cir cumstances not relevant t o this case.
Plaintiffs' conclusor y allegation that Judge Gr eer denied Theresa Schia vo access t o court by not
requiring her pr esence is without merit.
With respect t o Plaintiffs' contention that Judge Gr eer violated Theresa Schia vo 's pr ocedur al due
process rights b y failing to appoint a guar dian ad litem, the r ecord belies this contention. In
June, 1998, Judge Rives sua sponte appointed Richar d L. Pearse, Jr ., Esq. as guar dian ad litem
“for the purpose of r eviewing the r equest for termination of lif e support on behalf of the war ds
[sic].” In r e Guar dianship of Schia vo, No. 90-2908-GD-003 (Pinellas Cty . Circ. Ct., June 11, 1998).
The r ecord reects that att orney Pearse “fully complied with his June 11, 1998 Cour t Order of
appointment” and was accor dingly discharged on June 16, 1999 b y Judge Boyer of the Pinellas
County Cir cuit Court. Pearse ser ved as guar dian ad litem for one y ear and ultimately testied
as a witness in the trial befor e Judge Greer. In r e Guar dianship of Schia vo, [*15] No. 90-2908-
GD-003 (Pinellas Cty . Circ. Ct., F eb. 28, 2000). n5. Accordingly, assuming F ourteenth
Amendment pr ocedural due pr ocess requires the appointment of a guar dian ad litem, there
would be no constitutional depriv ation here because thr ee guardians ad litem wer e appointed to
repr esent Theresa Schia vo 's inter ests over the course of the litigation.
n5. The record also r eveals that att orney John H. P ecarek was appointed as guar dian ad litem
early in the proceedings. In re Guar dianship of Schia vo, No. 90-2908-GD-003 (Pinellas Cty . Circ.
Ct., F eb. 17, 1994). Late in the litigation, at the r equest of Florida Governor Jeb Bush, Pinellas
County Chief Judge Da vid Demers also appointed att orney Jay Wolfson, M.D . as guardian ad
litem. Schiavo VI, 2005 WL 600377 at *1, n. 2.
Plaintiffs' last contention is that Theresa Schia vo 's pr ocedur al due pr ocess rights wer e violated
by Judge Gr eer's r efusal t o appoint an independent att orney to r epr esent her inter ests. The due
pr ocess clause is [*16] implicated when ther e is a “deprivation of lif e, liberty or pr operty at the
hands of the go vernment. ” Grayden v . Rhodes, 345 F .3d 1225, 1232 (11th Cir .2003). If one or /
more of these constitutionally pr otected interests is at stak e, as they undoubtedly ar e in this
case, the due process clause requires notice and the oppor tunity to be hear d. Id. “It is ․
fundamental that the right to notice and an opportunity to be hear d must be gr anted at a
meaningful time and in a meaningful manner .” Fuentes v . Cortese, 407 U.S. 67, 80, 92 S.Ct.
1983, 32 L.E d.2d 556 (1972). Unquestionably, in some circumstances, a meaningful
opportunity t o be hear d includes the right t o be represented b y counsel. However , “due pr ocess
is a exible concept that v aries with the particular circumstances of each case, and t o determine
the requir ements of due pr ocess in a particular situation we must apply the balancing test
articulated in Mathews v . Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.E d.2d 18 (1976).” Grayden,
345 F .3d at 1232-33.
The Mathews balancing test r equires consider ation of three distinct fact ors: “First, the priv ate
interest that will be aff ected by the ocial [*17] action; second, the risk of an erroneous
deprivation of such inter est through the pr ocedures used, and the pr obable value, if any , of
additional or substitute pr ocedural safeguar ds; and nally , the Government' s interest, including
the function inv olved and the scal and administr ative bur dens that the additional or substitute
procedur al requir ement would entail. ” Mathews, 424 U.S. at 335, 96 S.Ct. 893.
The rst fact or weighs the inter est at stake. Plaintiffs ur ge that Theresa Schia vo 's lif e is at
stak e, while Def endant argues that her liber ty to ex ercise her right t o refuse medical tr eatment is
the interest being adjudicated. In either case, a fundamental and impor tant interest is
implicated in the cour t proceedings determining the r emoval of ar ticial lif e suppor t.
The second Mathews fact or requir es consider ation of the risk of err oneous deprivation under the
procedur es used and the pr obable value of the additional pr otections urged by the Plaintiffs.
Theresa Schia vo 's case has been exhaustiv ely litigated, including an extensiv e trial, followed by
another “extensive hearing at which many highly qualied physicians testied” t o reconrm that
no meaningful tr eatment [*18] was a vailable, and six appeals. As the Florida Second District
Court of Appeal stated, “f ew, if any , similar cases ha ve e ver been affor ded this heightened le vel
of pr ocess. ” Schia vo VI, 2005 WL 600377 at *3.
Thr oughout the pr oceedings, the par ties, represented b y able counsel, adv anced what they
believed t o be Theresa Schia vo 's intentions concerning ar ticial life suppor t. In Florida, counsel
for Michael Schia vo as Theresa Schia vo 's guar dian owed a duty of car e to Ther esa Schia vo in his
repr esentation. Op. Atty. Gen. 96-94 (No vember 20, 1996). Finally, with respect t o presenting
the opposing perspectiv e on Theresa Schia vo 's wishes, the Cour t cannot envision mor e effectiv e
advocates than her par ents and their able counsel. Plaintiffs have not shown how an additional
lawy er appointed b y the court could have r educed the risk of err oneous rulings.
With regard to the thir d factor, without question the state of Florida has an inter est in the welfare
of its citizens and in the legal pr ocess for adjudicating disputed claims such as wer e presented
to Judge Gr eer in this case, as e videnced by Florida's well dened statut ory scheme. The
cour t's inher ent authority t o appoint [*19] a guar dian ad litem, consult independent exper ts or
appoint an attorney if warr anted pr otects the state 's inter est.
Balancing the thr ee factors, this cour t concludes that Theresa Schia vo 's lif e and liber ty interests
were adequately pr otected by the extensiv e process pr ovided in the state cour ts. Defendant
Michael Schia vo and Plaintiffs, assisted b y counsel, thoroughly advocated their competing
perspectives on Theresa Schia vo 's wishes. Another lawy er appointed b y the court could not
have off ered mor e protection of Theresa Schia vo 's inter ests. Accordingly, Plaintiffs ha ve not
established a substantial lik elihood of success on the merits on Count II. /
C. Count Three-Violation of F ourteenth Amendment Right t o Equal Pr otection of the Law
For the same r easons relief under Count I was not appr opriate, 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 for th in Count III. See Cruzan v. Missouri
Dept. of Health, 497 U.S. 261, 287 n. 12, 110 S.Ct. 2841, 111 L.E d.2d 224 (1990) (“The
differences between the choice made b y a competent person to refuse [*20] medical tr eatment,
and the choice made for an incompetent person b y someone else to refuse medical tr eatment,
are so ob viously diff erent that the State is warr anted in establishing rigor ous procedur es for the
latter class of cases which do not apply t o the former class.”) (emphasis in original).
D. Counts IV and V -Violation of Religious Land Use and Institutionaliz ed Persons Act (RL UIPA)
and Violation of First Amendment F ree Ex ercise of Religion Clause
Plaintiffs bring Counts IV and V alleging that Theresa Schia vo 's right t o exercise her r eligion has
been burdened by the state cour t's or der t o remo ve the f eeding tube. With respect t o Count IV
of the Complaint, Plaintiffs allege a claim under the Religious Land Use and Institutionaliz ed
Persons Act (42 U.S.C. § 2000cc-1), claiming that her rights t o free ex ercise of her r eligion have
been bur dened by the state cour t's or der authorizing r emoval of her f eeding tube in that r emoval
of the f eeding tube “imposes a substantial bur den on Terr y's r eligious fr ee exercise. ” That
statute expr essly requires, howe ver , that “ no government shall impose a substantial bur den on
the religious ex ercise of [*21] a person ․ ” 42 U.S.C. § 2000cc(a) (emphasis added).
In Count V, Plaintiffs mak e a similar contention under the 42 U.S.C. § 1983 and the free exercise
clause, alleging that “T erry's r eligious beliefs ar e burdened” b y execution of or der “in that Terr y is
being for ced to engage in an activity contr ary t o the tenets of her Roman Catholic faith ․ ”
Plaintiffs allege that Defendants have a constitutional duty t o accommodate “Terry's sincer ely-
held religious beliefs. ”
Undoubtedly, T err y Schia vo enjo ys, by virtue of 42 U.S.C. § 2000 cc(a), a statut orily protected
right not t o have substantial bur dens placed on her r eligious exercise b y the go vernment. The
plain language of the statute pr ohibits government fr om imposing a substantial bur den on the
religious ex ercise of an individual such as Theresa Schia vo. Similarly , the Free Ex ercise Clause
contained in the First Amendment of the Constitution expr essly protects the ex ercise of r eligion.
In their Complaint, Plaintiffs allege that the state cour t's or der imposes a substantial bur den on
Theresa Schia vo 's fr ee ex ercise of r eligion. (Complaint, P 67).
In order [*22] t o succeed on either claim, howe ver , Plaintiffs must establish that the Def endants
were state act ors. Plaintiffs' claims fail because neither Def endant Schiavo nor Def endant
Hospice ar e state actors. Moreover , the fact that the claims wer e adjudicated by a state court
judge does not pr ovide the r equisite state action for purposes of the statute or the F ourteenth
Amendment. See Harve y v . Har ve y, 949 F .2d 1127, 1133-34 (11th Cir .1992) (“Use of the courts
by priv ate par ties does not constitute an act under color of state law .”); Torr es v . First State Bank
of Sierr a County , 588 F.2d 1322, 1326-27 (10th Cir .1978) (“We do not think that the ‘ color of law’
ref erence in § 1983 was intended t o encompass a case such as this one, wher e the only
inrmities are the excesses of the cour t order itself, ․ subject to the normal pr ocesses of
appeal.”); see also Dahl v . Akin, 630 F.2d 277, 281 (5th Cir .1980).
This court appreciates the gr avity of the consequences of denying injunctiv e relief. Even under
these dicult and time str ained circumstances, howe ver , and notwithstanding Congr ess'
expressed inter est in the welfar e of Ther esa Schia vo, [*23] this cour t is constrained to apply the /
law to the issues befor e it. As Plaintiffs ha ve not established a substantial lik elihood of
success on the merits, Plaintiffs' Motion for Tempor ary Restr aining Or der (Dkt. 2) must be
DENIED.
DONE AND ORDERED in chambers this 22nd da y of March, 2005.
JAMES D . WHITTEMORE
United States District Judge
I str ongly dissent fr om the majority 's decision t o deny the r equest for an injunction pursuant t o
the All Writs Act and the r equest for a preliminary injunction. First, Plaintiffs ha ve demonstr ated
their entitlement t o a preliminar y injunction. Second, the denial of Plaintiffs' r equest for an
injunction frustrates Congress's intent, which is t o maintain the status quo b y keeping Theresa
Schia vo aliv e until the f ederal cour ts have a new and adequate oppor tunity to consider the
constitutional issues r aised by Plaintiffs. The entir e purpose for the statute was t o give the
feder al cour ts an oppor tunity to consider the merits of Plaintiffs' constitutional claims with a
fresh set of e yes. Denial of Plaintiffs' petition cuts sharply against that intent, which is e vident
to me fr om the language of the statute, as well as the swift and unpr ecedented manner of its
enactment. Ther esa Schia vo 's death, which is imminent, eff ectively ends the litigation without a
fair oppor tunity to fully consider the merits of Plaintiffs' constitutional claims.
We should, at minimum, gr ant Plaintiffs' All Writs Petition for emer gency injunctive relief. First, I
note that ther e is no precedent that pr ohibits our granting of this petition. Second, mindful of
equitable principles, the extr aordinar y circumstances pr esented by this appeal r equire that we
grant the petition t o preser ve f eder al jurisdiction and permit the oppor tunity to give Plaintiffs'
claims the full and meaningful r eview the y deserve.
In considering this extr aordinar y case, I am mindful that “[t]he essence of equity jurisdiction has
been the power of the Chancellor t o do equity and to mould each decr ee to the necessities of the
particular case. Flexibility rather than rigidity has distinguished it. The qualities of mer cy and
practicality ha ve made equity the instrument for nice adjustment and r econciliation between the
public interest and priv ate needs as well as between competing priv ate claims.” Swann v .
Charlotte-Mecklenbur g Bd. of Educ., 402 U.S. 1, 15, 91 S.Ct. 1267, 28 L.E d.2d 554 (1971)
(citations omitted). Keeping those principles rmly in mind, “ mercy and pr acticality” compel us
to gr ant the r elief requested.
I. All W rits Act, 28 U.S.C. § 1651
The All Writs Act pr ovides: “The Sup reme Cour t and all cour ts established b y Act of Congress
may issue all writs necessar y or appropriate in aid of their r espective jurisdictions and agr eeable
to the usages and principles of law .” 28 U.S.C. § 1651. Feder al cour ts have “both the inher ent
power and the constitutional obligation t o protect their jurisdiction ․ to carr y out Ar ticle III
functions. ” Procup v . Strickland, 792 F .2d 1069, 1074 (11th Cir .1985) (en banc) (emphasis
added). T owar d that end, the All W rits Act permits federal cour ts to pr otect their jurisdiction
with r egards to “not only ongoing pr oceedings, but potential futur e proceedings. ” Kla y v. United
Healthgr oup, Inc., 376 F .3d 1092, 1099 (11th Cir .2004) (internal citations omitted); IT T Comm.
De vel. Corp. v . Barton, 569 F .2d 1351, 1359 n. 19 (5th Cir .1978) (“When potential jurisdiction
exists, a federal cour t may issue status quo or ders to ensur e that once its jurisdiction is shown
to exist, the cour t will be in a position t o exercise it. ”). Although the Act does not cr eate any
substantive feder al jurisdiction, it empowers f ederal cour ts “to issue writs in aid of jurisdiction
1 /
previously acquir ed on some other independent gr ound,” see Brittingham v . Comm'r, 451 F .2d
315, 317 (5th Cir .1971), and codies the “f ederal cour ts' traditional, inher ent power to protect the
jurisdiction the y already ha ve. ” Kla y, 376 F .3d at 1099.
An injunction under the All W rits Act is an extraordinar y remedy , one that “inv ests a court with a
power that is essentially equitable, and as such, not gener ally available. ” Clint on v. Goldsmith,
526 U.S. 529, 537, 119 S.Ct. 1538, 1543, 143 L.E d.2d 720 (1999). A feder al cour t's power under
the Act, while limited, is br oad enough that “[a] court may grant a writ under this act whene ver it
is ‘ calculated [in the cour t's] sound judgment t o achieve the ends of justice entrusted t o it.” Kla y,
376 F .3d at 1100 (citing Adams v . United States, 317 U.S. 269, 273, 63 S.Ct. 236, 239, 87 L.E d.
268 (1942)).
I am careful to stress that equitable r elief under the All W rits Act is not to be confused with a
traditional injunction, which is “ predicated upon some cause of action. ” Kla y, 376 F .3d at 1100.
An injunction enter ed pursuant to the All Writs Act is not a substitute for tr aditional injunctive
relief. The All W rits Act injunction is distinguished fr om a traditional injunction not b y its effect,
but by its purpose. T o obtain r elief under the All W rits Act, Plaintiffs need not satisfy the
traditional four-par t test associated with tr aditional injunctions “because a cour t's tr aditional
power t o protect its jurisdiction, codied b y the act, is grounded in entir ely separate concerns. ”
Id. Howe ver , Plaintiffs must show that “ some ongoing proceeding ․ is being threatened by
someone else 's action or beha vior.” Id. Relief pursuant t o the All Writs Act should only be
granted in extr aordinar y circumstances wher e inaction would pr event a f ederal cour t from
exercising its pr oper Article III jurisdiction.
As an appellate cour t, we may grant All W rits Act relief to preser ve our “ potential jurisdiction ․
where an appeal is not then pending but ma y be later perfected. ” F.T .C. v . Dean F oods Co., 384
U.S. 597, 603, 86 S.Ct. 1738, 1742, 16 L.E d.2d 802 (1966). In Dean Foods, the Supr eme Court
sustained the entr y of a preliminar y injunction that pr evented the consummation of a mer ger of
two corporations. The Supr eme Cour t held that the use of an All W rits Act injunction was
particularly appr opriate in a situation wher e “an eff ective remedial or der ․ would otherwise be
virtually impossible. ” Id. at 605, 86 S.Ct. 1738. That is pr ecisely the case her e.
Plaintiffs have demonstr ated that the issuance of an injunction is essential t o preser ve the
feder al cour ts' ability t o “bring the litigation t o a natural conclusion. ” Kla y, 376 F .3d at 1102. By
failing to issue an injunction r equiring the reinsertion of Theresa Schia vo 's f eeding tube, we
virtually guar antee that the merits of Plaintiffs' claims will ne ver be litigated in f ederal cour t.
That outcome would not only r esult in manifest injustice, but it would thwar t Congress's clearly
expr essed command that Plaintiffs' claims be giv en de novo r eview b y a feder al cour t.
Given the extr aordinar y circumstances of this case, we ar e fully within our power to issue an
injunction “in aid of [our] jurisdiction ” pursuant to the All Writs Act. Under the Act, “[a] cour t may
enjoin almost any conduct ‘ which, left unchecked, would have ․ the practical eff ect of diminishing
the court's power t o bring the litigation t o a natural conclusion. ” Kla y, 376 F .3d at 1102 (citing
Barton, 569 F .2d at 1359). Feder al cour ts may “compel acts necessar y to pr omote the
resolution of issues in a case pr operly before it” including “issu[ing] or ders to aid in conducting
factual inquiries. ” Id. (citations and internal quotation omitted).
The issuance of an All W rits Act injunction is, as mentioned earlier , an extraordinar y remedy .
However , this case is clearly extr aordinar y. Fur thermor e, entry of an All W rits Act injunction is
necessary to pr eser ve f eder al jurisdiction t o hear Plaintiffs' claims. My resear ch has not
re vealed any pr ecedent which clearly pr ohibits the entry of an All Writs Act injunction in a
2 /
situation where a few da ys' dela y is “necessar y or appropriate in aid of ” feder al cour t jurisdiction.
28 U.S.C. § 1651. In contr ast, refusing t o grant the equitable r elief would, through Theresa
Schia vo 's death, moot the case and eliminate f ederal jurisdiction.
This depriv ation would dir ectly contravene Congr ess's recent enactment gr anting jurisdiction in
this case. An Act for the r elief of the parents of Theresa Marie Schia vo, Pub. L. No. 109-3 § 2
(Mar. 21, 2005). The rst step in statut ory interpr etation r equires that cour ts apply the plain
meaning of the statut ory language unless it is ambiguous. Conn. Nat'l Bank v. Germain, 503 U.S.
249, 253-54, 112 S.Ct. 1146, 1149, 117 L.E d.2d 391 (1992); United States v. Fisher, 289 F.3d
1329, 1337-38 (11th Cir .2002). Only when we nd ambiguity in the statute 's text should we
apply canons of statut ory interpr etation, such as the canon of constitutional a voidance. Dep't of
Hous. & Urban De v. v . Ruck er, 535 U.S. 125, 134, 122 S.Ct. 1230, 1235, 152 L.E d.2d 258 (2002).
Because the language of the statute is clear, the majority's r eliance on legislativ e history is
unwarr anted and incorr ect. As originally pr oposed, the Act mandated a sta y of proceedings
while the district cour t considered Plaintiffs' claims. A later version changed the language fr om
“shall” (mandating a sta y) to “ma y” (authorizing a sta y). See 151 Cong. Rec. 3099, 3100 (daily
ed. Mar . 20, 2005) (statement of Sen. Le vin). Although the nal v ersion of the Act did not
contain any stay provision, we should not r ead this to mean that Congr ess intended to deny this
Court the power t o issue a sta y. The r eason that Congr ess deleted the sta y provision is that
“this bill does not change curr ent law under which a stay is discretionary.” Id. (statement of Sen.
Frist). In shor t, the legislation did not need an explicit sta y provision because, giv en the already-
existing discr etionary power of f ederal cour ts to issue injunctions in aid of jurisdiction, it would
have been r edundant and unnecessar y. Ther efore, the majority 's asser tion that the text of the
statute limits or eliminates our power t o enter an injunction is misplaced.
Here, we ha ve Congr ess's clear mandate r equiring the federal cour ts to consider the actual
merits of Plaintiffs' claims. Congress intended for this case t o be reviewed with a fr esh set of
eyes. We ar e not called upon t o consider the wisdom of this legislation. In granting this
injunction we would mer ely effectuate Congr ess's intent.
If Congr ess had intended that f ederal review of the issues r aised by Plaintiffs be giv en customary
and or dinary treatment, that r eview would be conned t o consideration of the denial of the
motion for a writ of habeas corpus in Case No. 05-11517. Ther e, consider ation of Plaintiffs'
constitutional claims would be limited b y the substantial deference that is affor ded to previous
state cour t determinations. Yet, Congr ess went t o great lengths t o remo ve many of those
limitations. First, the legislation eliminates any “ standing” barriers to the commencement of an
action by Plaintiffs. Secondly, the legislation giv es the Middle District of Florida entir ely new
consideration over any claim of a violation of Theresa Schia vo 's constitutional rights, without
r espect t o “any prior state cour t determination and r egardless of whether such a claim has
previously been r aised, consider ed, or decided in state cour t proceedings. ” The legislation goes
e ven fur ther to eliminate any exhaustion r equirements. Congress ob viously intended that this
case be consider ed by feder al cour ts without the cust omary limitations. T oda y, we ar e not
called upon t o second-guess the wisdom of Congr ess, but to apply the law it has passed.
II. Preliminar y Injunction
At rst glance, Plaintiffs' r equest for an injunction does not appear as str ong as their claim
pursuant to the All W rits Act. However , I belie ve that an injunction is appr opriate and, at the very
least, we should issue an injunction t o permit the district court to r eview Plaintiffs' claims on the
merits. /
To pr evail on their r equest for injunctiv e relief, Plaintiffs must demonstr ate the following: (1) a
substantial likelihood of success on the merits; (2) irreparable injur y if the injunction is not
issued; (3) threatened injur y to the m ovant outweighs the potential damage that the pr oposed
injunction may cause the def endants; and (4) the injunction will not be adv erse to the public
interest. See All Car e Nursing Ser v., Inc. v . Bethesda Mem 'l Hosp., Inc., 887 F .2d 1535, 1537
(11th Cir.1989) (citation omitted). The issuance of an injunction is an extr aordinar y remedy , and
the mo ving par ty “bears the bur den to clearly establish the four pr erequisites. ” Caf e 207, Inc. v .
St. Johns County , 989 F.2d 1136, 1137 (11th Cir .1993).
It is clear from our cases that pr oof of a substantial lik elihood of success on the merits is an
indispensable prerequisite t o a preliminar y injunction. All Care Nursing Ser v., 887 F .2d at 1537.
Howe ver , the mo vant must demonstr ate a “substantial lik elihood,” not a substantial cer tainty.
To r equir e mor e undermines the purpose of e ven considering the other thr ee prerequisites.
Thus, instead, “the mo vant need only pr esent a substantial case on the merits when a serious
legal question is inv olved and show that the balance of the equities weighs hea vily in favor of
gr anting the [pr eliminary 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); Garcia-Mir v . Meese, 781 F .2d 1450,
1453 (11th Cir.1986). The r eview “r equire[s] a delicate balancing of the pr obabilities of ultimate
success at nal hearing with the consequences of immediate irr eparable injur y which could
possibly ow fr om the denial of pr eliminary 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 hea vily in favor of gr anting
the [injunction], the mo vant need only show a substantial case on the merits. ” Gonzalez, 2000
WL 381901 at *1 (internal citations omitted) (alter ation in original). In this case, the balance of
the equities weighs hea vily in favor of gr anting the injunction. We determine the balance of the
equities b y examining the thr ee nal factors requir ed to gr ant a pr eliminar y injunction. Garcia-
Mir, 781 F .2d at 1453.
“A showing of irr eparable harm is the sine qua non of injunctiv e relief. ” Nor theastern 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 irr eparable injur y is not
only possible, it is imminent. I am aware of no injur y more irrepar able than death. Clearly, the
threatened injur y of death outweighs any harm the pr oposed injunction may cause, i.e.
reinser ting the f eeding tube. In fact, I fail to see any harm in r einstating the feeding tube. On
the other hand, a denial of the r equest for injunction will result in the death of Theresa Schia vo.
Finally , an injunction in this case clearly would not be adv erse to public inter est, thus satisfying
the fourth and nal criteria necessar y to gr ant a pr eliminar y injunction. Upon reviewing these
thr ee fact ors, it is ob vious that the equities weigh hea vily in favor of gr anting the injunction.
I now consider the rst pr ong, whether Plaintiffs presented a substantial case on the merits. In
the complaint, Plaintiffs claim that Theresa Schia vo 's F our teenth Amendment due pr ocess rights
were violated in that she was not pr ovided a fair and impar tial trial, she was not giv en adequate
procedur al due pr ocess, and she was not affor ded equal protection of the laws. Fur ther ,
Plaintiffs contend that Theresa Schia vo 's First Amendment fr eedom to exercise her r eligion has
been burdened by the state cour t's or der t o remo ve the f eeding tube. Plaintiffs also allege a
violation of the Religious Land Use and Institutionaliz ed Persons Act (RL UIPA), 42 U.S.C. §
2000cc-1(a). /
The establishment of a “substantial likelihood for success on the merits” is a hea vy 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 cir cuit jurisprudence
establishes that the mo vant need not establish a “ probability ” of success, taking all things int o
consideration. The merits of Plaintiffs' substantial claims warr ant a more complete r eview . I
do not mean t o suggest that Plaintiffs will denitely pr evail on the merits, but mer ely that they
have pr esented a sucient case on the merits. Plaintiffs raise legal issues necessitating the
grant of the pr eliminary injunction and should be affor ded an opportunity to defend the merits of
their claims. Adjudication on the merits is impossible if we do not gr ant the injunction.
Finally, I note that awar ding an injunction is an equitable decision. We ha ve br oad powers t o
fashion a remedy in equity . W e ar e requir ed to balance the equities, and when we do, we should
nd that the gr avity of the irr eparable injur y Ther esa Schia vo would suff er could not weigh mor e
heavily in Plaintiffs' fa vor . In contr ast, there is little or no harm t o be found in granting this
motion for a tempor ary injunction and deciding the full merits of the dispute.
For the for egoing reasons, I r espectfully dissent.
FOOTNO TES
1. Our dissenting colleague sa ys that “the denial of Plaintiffs' r equest for an injunction
frustrates Congr ess's intent, which is t o maintain the status quo. ” Dissenting Op. at 1237. The
status quo is that Mrs. Schia vo is not r eceiving nutrition and hy dration. The plaintiffs do not
want the status quo maintained. The y want this Cour t or the district cour t to issue an injunction
armativ ely requiring the r espondents to change the status quo b y bringing about the surgical
procedur e necessar y to r einser t the feeding tube int o Mrs. Schiavo.
2. The dissent bemoans the fact that the merits of the plaintiffs' claims will ne ver be litigated
in f eder al cour t. The district cour t's nding r egarding the rst-pr ong injunctive relief fact or
reects that those claims lack merit, or at least that the possibility of any merit is t oo low to
justify pr eliminary injunctiv e relief.
3. Par t II of the dissent ar gues that we should gr ant an injunction and discusses the four
factors as though this Cour t were making the decision in the rst instance. We ar e not. We
are an appellate cour t reviewing the district cour t's decision. Ther e is no occasion for us t o
decide whether to issue an injunction pending appeal, because the only appeal we ha ve befor e
us is from the district cour t's denial of a tempor ary r estr aining or der, and we ar e deciding that
appeal now .
4. In ar guing that an injunction should be issued, the dissent r efers t o “a situation wher e a few
days' dela y” is all that is necessar y. That is not this situation. T o affor d the plaintiffs the
pretrial disco ver y and full jur y trial of all issues the y demand would require a dela y of many
months, if not longer .
5. Contr ary t o the dissent' s assertion, we do not belie ve that the text of the Act limits or
eliminates a cour t's power t o grant tempor ary or pr eliminar y relief. Exactly the contr ary. Our
position is that the Act, which does not mention that subject, and which was amended t o remo ve
a pr ovision that would ha ve changed the law , does not affect it at all. The district cour t applied
settled law and so do we.
6. A petition for r ehearing or suggestion for r ehearing en banc is not, of course, r equired
befor e a petition for cer tiorari ma y be led in the United States Supr eme Court. If, howe ver , a
petition for r ehearing or r ehearing en banc is t o be led, it must be led b y 10:00 a.m. ET, Mar ch /
23, 2005. See Fed.R.App.P . 35(c) & Fed.R.App.P . 40(a)(1).
1. In Bonner v . Prichard, 661 F.2d 1206, 1209 (11th Cir .1981) (en banc), we adopted as binding
precedent the decisions of the former Fifth Cir cuit handed down prior to October 1, 1981.
2. The majority opinion holds that the All W rits Act is not appropriate in this case because
“wher e the r elief sought is in essence a pr eliminary injunction, the All W rits Act is not available
because other , adequate remedies at law exist, namely F ed.R.Civ.P. 65, which pr ovides for
tempor ary r estr aining or ders and pr eliminary injunctions” Maj. Opn. at 1228-29. I do not argue
with that point. However , in this case, the r elief Plaintiffs seek is not a pr eliminary injunction b y
another name. Rather, the purpose for which Plaintiffs ask that we r einsert Ther esa Schia vo 's
f eeding tube is t o permit a federal cour t to ha ve time within which t o exercise its jurisdiction and
fully enter tain Plaintiffs' claims. Thus, the purpose of entering an injunction in this case is
limited t o the narr ow goal of aiding the ex ercise of f ederal jurisdiction. Plaintiffs' claim is
precisely the one and only type of situation in which an All W rits Act injunction is appropriate and
for which there is no other adequate r emedy at law.
PER CURIAM:
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