March 23, 2005
THOMAS K. KAHN
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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,
as guardian of the person of
Theresa Marie Schindler Schiavo, incapacitated,
JUDGE GEORGE W. GREER,
THE HOSPICE OF THE FLORIDA SUNCOAST, INC.,
Appeal from the
Middle District of
(March 23, 2005)
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 of Plaintiffs’ request for an injunction 1
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.
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. After notice and a hearing, the district 1
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 never be litigated 2
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.
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.,
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
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 should grant an injunction and discusses the four 3
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.
In arguing that an injunction should be issued, the dissent refers to “a situation where a few 4
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
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
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
enactments are constitutional.
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.
Mr. FRIST. I would be pleased to help clarify this issue.
Mr. LEVIN. Section 5
of the original version of the
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
as does the junior
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
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 of the Act limits or 5
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.
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
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
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
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
jurisdictions and agreeable to the usages and principles of law.”
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
and, as such, not generally available to provide alternatives to other, adequate
remedies at law.”
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
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.”
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 is not, of course, required 6
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).
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
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.
binding precedent the decisions of the former Fifth Circuit handed down prior to October 1, 1981.
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.
Mecklenburg Bd. of
those principles firmly in mind, “mercy and practicality” compel us to grant the
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) (“When potential jurisdiction exists, a federal 1
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
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
Clinton v. Goldsmith, 526
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.
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
The majority opinion holds that the All Writs Act is not appropriate in this case because 2
“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.
proceeding . . . is
being threatened by someone else’s action or behavior.”
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
(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
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
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
unless it is
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
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
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
wisdom of this legislation. In granting this injunction we would merely effectuate
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
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.
(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.
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.
381901 at *1 (11th
Cir. Apr. 19, 2000);
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
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.”
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.
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
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
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.