March 23, 2005






No. 05-11556

D. C. Docket No. CV-05-00530-T


incapacitated ex rel, Robert Schindler and

Mary Schindler, her parents and next friends,




as guardian of the person of

Theresa Marie Schindler Schiavo, incapacitated,





Appeal from the United States District Court for the

Middle District of Florida


(March 23, 2005)

Before CARNES, HULL, and WILSON, Circuit Judges.


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.,

527 U.S. 308, 339, 119 S. Ct. 1961, 1978 (1999) (“Plaintiffs with questionable

claims would not meet the likelihood of success criterion.”).

Applying those factors, the district court determined that the last three

weighed in favor of granting the temporary restraining order. The court reasoned

that because those three factors were met, plaintiffs only had to show a substantial

case on the merits. After analyzing each of plaintiffs’ claims, the district court

concluded they had failed to show a substantial case on the merits as to any of the


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

that congressional enactments are constitutional. United States v. Morrison, 529

U.S. 598, 607, 120 S. Ct. 1740, 1748 (2000); Benning v. Georgia, 391 F.3d 1299,

1303 (11th Cir. 2004). It is enough for present purposes that in enacting Pub. L.

No. 109-3 Congress did not alter for purposes of this case the long-standing

general law governing whether temporary restraining orders or preliminary

injunctions should be issued by federal courts.

There is no provision in Pub. L. No. 109-3 addressing whether or under what

conditions the district court should grant temporary or preliminary relief in this

case. There is no more reason in the text of the Act to read in any special rule

about temporary or preliminary relief than there would be to read in a special rule

about deciding the case before trial on Fed.R.Civ.P. 12(b)(6) or summary judgment

grounds. Not only that, but Congress considered and specifically rejected

provisions that would have mandated, or permitted with favorable implications, the

grant of the pretrial stay. There is this enlightening exchange in the legislative

history concerning the Senate bill that was enacted:

Mr. LEVIN. Mr. President, I rise to seek clarification from the

majority leader about one aspect of this bill, the issue of whether

Congress has mandated that a Federal court issue a stay pending

determination of the case.


Mr. FRIST. I would be pleased to help clarify this issue.

Mr. LEVIN. Section 5 of the original version of the Martinez bill

conferred jurisdiction on a Federal court to hear a case like this, and

then stated that the Federal court "shall" issue a stay of State court

proceedings pending determination of the Federal case. I was opposed

to that provision because I believe Congress should not mandate that a

Federal judge issue a stay. Under longstanding law and practice, the

decision to issue a stay is a matter of discretion for the Federal judge

based on the facts of the case. The majority leader and the other bill

sponsors accepted my suggestion that the word "shall" in section 5 be

changed to "may."

The version of the bill we are now considering strikes section 5

altogether. Although nothing in the text of the new bill mandates a

stay, the omission of this section, which in the earlier Senate-passed

bill made a stay permissive, might be read to mean that Congress

intends to mandate a stay. I believe that reading is incorrect. The

absence of any state [sic] provision in the new bill simply means that

Congress relies on current law. Under current law, a judge may decide

whether or not a stay is appropriate.

Does the majority leader share my understanding of the bill?

Mr. FRIST. I share the understanding of the Senator from Michigan,

as does the junior Senator from Florida who is the chief sponsor of this

bill. Nothing in the current bill or its legislative history mandates a

stay. I would assume, however, the Federal court would grant a stay

based on the facts of this case because Mrs. Schiavo would need to be

alive in order for the court to make its determination. Nevertheless,

this bill does not change current law under which a stay is


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

of them.

Plaintiffs have also moved this Court under the All Writs Act, 28 U.S.C.

§ 1651(a), for emergency injunctive relief pending appeal, asking us to order the

same temporary or preliminary relief that we have concluded the district court did

not abuse its discretion in denying. They are supported in that motion by a

Statement of Interest filed by the United States’ Department of Justice.

The All Writs Act provides: “The Supreme Court and all courts established

by Act of Congress may issue all writs necessary or appropriate in aid of their

respective jurisdictions and agreeable to the usages and principles of law.” Id. The

purpose of the power codified in that statute is to allow courts “to protect the

jurisdiction they already have, derived from some other source.” Klay, 376 F.3d at

1099. It gives a “residual source of authority to issue writs that are not otherwise

covered by statute” and is an “extraordinary remedy that . . . is essentially equitable


and, as such, not generally available to provide alternatives to other, adequate

remedies at law.” Id. at 1100 (internal quotes and citations omitted).

Our decisions make clear that where the relief sought is in essence a

preliminary injunction, the All Writs Act is not available because other, adequate

remedies at law exist, namely Fed.R.Civ.P. 65, which provides for temporary

restraining orders and preliminary injunctions. See Fla. Med. Ass’n v. U.S. Dep’t

of Health, Educ. & Welfare, 601 F.2d 199, 202-03 (5th Cir. 1979) (reversing the

district court’s grant of injunction under the All Writs Act because “Rule 65

provides sufficient protection for the jurisdiction of the district court”); Klay, 376

F.3d at 1101 n.13.

In Klay, we explained that the injunction sought in Florida Medical

Association was a “textbook” example of a preliminary injunction because “[i]t

was issued to preserve the status quo and prevent allegedly irreparable injury until

the court had the opportunity to decide whether to issue a permanent injunction.”

Klay, 376 F.3d at 1101 n.13. The injunction being sought by the plaintiffs is

another textbook example of an effort to use the All Writs Act in order to

circumvent the requirements for preliminary injunctive relief. Granting the

injunctive relief would “confer[] the same legal rights upon plaintiffs and impose[]

the same legal duties upon defendants as would a preliminary injunction.” Fla.

Med. Ass’n, 601 F.2d at 202; id. (the All Writs Act “does not authorize a district

court to promulgate an ad hoc procedural code”). Under our circuit law, the All

Writs Act cannot be used to evade the requirements for preliminary injunctions.

A petition for rehearing or suggestion for rehearing en banc 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.



WILSON, Circuit Judge, dissenting:

I strongly dissent from the majority’s decision to deny the request for an

injunction pursuant to the All Writs Act and the request for a preliminary

injunction. First, Plaintiffs have demonstrated their entitlement to a preliminary

injunction. Second, the denial of Plaintiffs’ request for an injunction frustrates

Congress’s intent, which is to maintain the status quo by keeping Theresa Schiavo

alive until the federal courts have a new and adequate opportunity to consider the

constitutional issues raised by Plaintiffs. The entire purpose for the statute was to

give the federal courts an opportunity to consider the merits of Plaintiffs’

constitutional claims with a fresh set of eyes. Denial of Plaintiffs’ petition cuts

sharply against that intent, which is evident to me from the language of the statute,

as well as the swift and unprecedented manner of its enactment. Theresa Schiavo’s

death, which is imminent, effectively ends the litigation without a fair opportunity

to fully consider the merits of Plaintiffs’ constitutional claims.

We should, at minimum, grant Plaintiffs’ All Writs Petition for emergency

injunctive relief. First, I note that there is no precedent that prohibits our granting

of this petition. Second, mindful of equitable principles, the extraordinary

circumstances presented by this appeal require that we grant the petition to

preserve federal jurisdiction and permit the opportunity to give Plaintiffs’ claims

the full and meaningful review they deserve.

In considering this extraordinary case, I am mindful that “[t]he essence of

equity jurisdiction has been the power of the Chancellor to do equity and to mould

In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as 1

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. Charlotte-

Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971) (citations omitted). Keeping

those principles firmly in mind, “mercy and practicality” compel us to grant the

relief requested.

I. All Writs Act, 28 U.S.C. § 1651

The All Writs Act provides: “The Supreme Court and all courts established

by Act of Congress may issue all writs necessary or appropriate in aid of their

respective jurisdictions and agreeable to the usages and principles of law.” 28

U.S.C. § 1651. Federal courts have “both the inherent power and the constitutional

obligation to protect their jurisdiction . . . to carry out Article III functions.”

Procup v. Strickland, 792 F.3d 1069, 1074 (11th Cir. 1986) (en banc) (emphasis

added). Toward that end, the All Writs Act permits federal courts to protect their

jurisdiction with regards to “not only ongoing proceedings, but potential future

proceedings.” Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1099 (11th Cir.

2004) (internal citations omitted); ITT Comm. Devel. Corp. v. Barton, 569 F.2d

1351, 1359 n.19 (5th Cir. 1978) (“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

generally available.” Clinton v. Goldsmith, 526 U.S. 529, 537, 119 S. Ct 1538,

1543 (1999). A federal court’s power under the Act, while limited, is broad

enough that “[a] court may grant a writ under this act whenever it is ‘calculated [in

the court’s] sound judgment to achieve the ends of justice entrusted to it.” Klay ,

376 F.3d at 1100 (citing Adams v. United States, 317 U.S. 269, 273, 63 S. Ct. 236,

239 (1942)).

I am careful to stress that equitable relief under the All Writs Act is not to be

confused with a traditional injunction, which is “predicated upon some cause of

action.” Klay , 376 F.3d at 1100. An injunction entered pursuant to the All Writs

Act is not a substitute for traditional injunctive relief. The All Writs Act injunction

is distinguished from a traditional injunction not by its effect, but by its purpose.

To obtain relief under the All Writs Act, Plaintiffs need not satisfy the traditional

four-part test associated with traditional injunctions “because a court’s traditional

power to protect its jurisdiction, codified by the act, is grounded in entirely

separate concerns.” Id. However, Plaintiffs must show that “some ongoing

The majority opinion holds that the All Writs Act is not appropriate in this case 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.” Id.

Relief pursuant to the All Writs Act should only be granted in extraordinary

circumstances where inaction would prevent a federal court from exercising its

proper Article III jurisdiction. 2

As an appellate court, we may grant All Writs Act relief to preserve our

“potential jurisdiction . . . where an appeal is not then pending but may be later

perfected.” F.T.C. v. Dean Foods Co., 384 U.S. 597, 603, 86 S. Ct. 1738, 1742

(1966). In Dean Foods, the Supreme Court sustained the entry of a preliminary

injunction that prevented the consummation of a merger of two corporations. The

Supreme Court held that the use of an All Writs Act injunction was particularly

appropriate in a situation where “an effective remedial order . . . would otherwise

be virtually impossible.” Id . at 605. That is precisely the case here.

Plaintiffs have demonstrated that the issuance of an injunction is essential to

preserve the federal courts’ ability to “bring the litigation to a natural conclusion.”

Klay , 376 F.3d at 1102. By failing to issue an injunction requiring the reinsertion

of Theresa Schiavo’s feeding tube, we virtually guarantee that the merits of

Plaintiffs’ claims will never be litigated in federal court. That outcome would not


only result in manifest injustice, but it would thwart Congress’s clearly expressed

command that Plaintiffs’ claims be given de novo review by a federal court.

Given the extraordinary circumstances of this case, we are fully within our

power to issue an injunction “in aid of [our] jurisdiction” pursuant to the All Writs

Act. Under the Act, “[a] court may enjoin almost any conduct ‘which, left

unchecked, would have . . . the practical effect of diminishing the court’s power to

bring the litigation to a natural conclusion.” Klay , 376 F.3d at 1102 (citing Barton ,

569 F.2d at 1359). Federal courts may “compel acts necessary to promote the

resolution of issues in a case properly before it” including “issu[ing] orders to aid

in conducting factual inquiries.” Id. (citations and internal quotation omitted).

The issuance of an All Writs Act injunction is, as mentioned earlier, an

extraordinary remedy. However, this case is clearly extraordinary. Furthermore,

entry of an All Writs Act injunction is necessary to preserve federal jurisdiction to

hear Plaintiffs’ claims. My research has not revealed any precedent which clearly

prohibits the entry of an All Writs Act injunction in a situation where a few days’

delay is “necessary or appropriate in aid of” federal court jurisdiction. 28 U.S.C.

1651. In contrast, refusing to grant the equitable relief would, through Theresa

Schiavo’s death, moot the case and eliminate federal jurisdiction.

This deprivation would directly contravene Congress’s recent enactment

granting jurisdiction in this case. An Act for the relief of the parents of Theresa

Marie Schiavo, Pub. L. No. 109-3 § 2 (Mar. 21, 2005). The first step in statutory

interpretation requires that courts apply the plain meaning of the statutory language


unless it is ambiguous. Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.

Ct. 1146, 1149 (1992); United States v. Fisher, 289 F.3d 1329, 1337-38 (11th Cir.

2002). Only when we find ambiguity in the statute's text should we apply canons

of statutory interpretation, such as the canon of constitutional avoidance. Dep't of

Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 134, 122 S. Ct. 1230, 1235 (2002).

Because the language of the statute is clear, the majority’s reliance on

legislative history is unwarranted and incorrect. As originally proposed, the Act

mandated a stay of proceedings while the district court considered Plaintiffs’

claims. A later version changed the language from “shall” (mandating a stay) to

“may” (authorizing a stay). See 151 Cong. Rec. 3099, 3100 (daily ed. Mar. 20,

2005) (statement of Sen. Levin). Although the final version of the Act did not

contain any stay provision, we should not read this to mean that Congress intended

to deny this Court the power to issue a stay. The reason that Congress deleted the

stay provision is that “this bill does not change current law under which a stay is

discretionary.” Id. (statement of Sen. Frist). In short, the legislation did not need

an explicit stay provision because, given the already-existing discretionary power

of federal courts to issue injunctions in aid of jurisdiction, it would have been

redundant and unnecessary. Therefore, the majority’s assertion that the text of the

statute limits or eliminates our power to enter an injunction is misplaced.

Here, we have Congress’s clear mandate requiring the federal courts to

consider the actual merits of Plaintiff’s claims. Congress intended for this case to

be reviewed with a fresh set of eyes. We are not called upon to consider the


wisdom of this legislation. In granting this injunction we would merely effectuate

Congress’s intent.

If Congress had intended that federal review of the issues raised by Plaintiffs

be given customary and ordinary treatment, that review would be confined to

consideration of the denial of the motion for a writ of habeas corpus in Case No.

05-11517. There, consideration of Plaintiffs’ constitutional claims would be

limited by the substantial deference that is afford to previous state court

determinations. Yet, Congress went to great lengths to remove many of those

limitations. First, the legislation eliminates any “standing” barriers to the

commencement of an action by Plaintiffs. Secondly, the legislation gives the

Middle District of Florida entirely new consideration over any claim of a violation

of Theresa Schiavo’s constitutional rights, without respect to “any prior state court

determination and regardless of whether such a claim has previously been raised,

considered, or decided in state court proceedings.” The legislation goes even

further to eliminate any exhaustion requirements. Congress obviously intended

that this case be considered by federal courts without the customary limitations.

Today, we are not called upon to second-guess the wisdom of Congress, but to

apply the law it has passed.

II. Preliminary Injunction

At first glance, Plaintiffs’ request for an injunction does not appear as strong

as their claim pursuant to the All Writs Act. However, I believe that an injunction

is appropriate and, at the very least, we should issue an injunction to permit the


district court to review to review Plaintiffs’ claims on the merits.

To prevail on their request for injunctive relief, Plaintiffs must demonstrate

the following: (1) a substantial likelihood of success on the merits; (2) irreparable

injury if the injunction is not issued; (3) threatened injury to the movant outweighs

the potential damage that the proposed injunction may cause the defendants; and

(4) the injunction will not be adverse to the public interest. See All Care Nursing

Serv., Inc. v. Bethesda Mem’l Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir. 1989)

(citation omitted). The issuance of an injunction is an extraordinary remedy, and

the moving party “bears the burden to clearly establish the four prerequisites.”

Café 207, Inc. v. St. Johns County, 989 F.2d 1136, 1137 (11th Cir. 1993).

It is clear from our cases that proof of a substantial likelihood of success on

the merits is an indispensable prerequisite to a preliminary injunction. All Care

Nursing Serv., 887 F.2d at 1537. However, the movant must demonstrate a

“substantial likelihood,” not a substantial certainty. To require more undermines

the purpose of even considering the other three prerequisites. Thus, instead, “the

movant need only present a substantial case on the merits when a serious legal

question is involved and show that the balance of the equities weighs heavily in

favor of granting the [preliminary injunction].” Ruiz v. Estelle, 650 F.2d 555, 565

(5th Cir. 1981) (per curiam); see Gonzalez v. Reno, No. 00-11424-D, 2000 WL

381901 at *1 (11th Cir. Apr. 19, 2000); United States v. Hamilton, 963 F.2d 322,

323 (11th Cir. 1992) (quoting ); Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th

Cir. 1986). The review “require[s] a delicate balancing of the probabilities of


ultimate success at final hearing with the consequences of immediate irreparable

injury which could possibly flow from the denial of preliminary relief.” Siegel v.

Lepore, 234 F.3d 1163, 1178 (11th Cir. 2000) (en banc).

As we stated in Gonzalez , “where the balance of the equities weighs heavily

in favor of granting the [injunction], the movant need only show a substantial case

on the merits.” Gonzalez, 2000 WL 381901 at *1 (internal citations omitted)

(alteration in original). In this case, the balance of the equities weighs heavily in

favor of granting the injunction. We determine the balance of the equities by

examining the three final factors required to grant a preliminary injunction.

Garcia-Mir , 781 F.2d at1453.

“A showing of irreparable harm is the sine qua non of injunctive relief.”

Northeastern Fla. Chapter of the Ass’n of Gen. Contractors of Am. v. City of

Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990) (citation and internal quotation

omitted). Here, the immediate irreparable injury is not only possible, it is

imminent. I am aware of no injury more irreparable than death. Clearly, the

threatened injury of death outweighs any harm the proposed injunction may cause,

i.e. reinserting the feeding tube. In fact, I fail to see any harm in reinstating the

feeding tube. On the other hand, a denial of the request for injunction will result in

the death of Theresa Schiavo. Finally, an injunction in this case clearly would not

be adverse to public interest, thus satisfying the fourth and final criteria necessary

to grant a preliminary injunction. Upon reviewing these three factors, it is obvious

that the equities weigh heavily in favor of granting the injunction.


I now consider the first prong, whether Plaintiffs presented a substantial case

on the merits. In the complaint, Plaintiffs claim that Theresa Schiavo’s Fourteenth

Amendment due process rights were violated in that she was not provided a fair

and impartial trial, she was not given adequate procedural due process, and she was

not afforded equal protection of the laws. Further, Plaintiffs contend that Theresa

Schiavo’s First Amendment freedom to exercise her religion has been burdened by

the state court’s order to remove the feeding tube. Plaintiffs also allege a violation

of the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.

§ 2000cc-1(a).

The establishment of a “substantial likelihood for success on the merits” is a

heavy burden, but not an insurmountable one. A movant need not establish that he

can hit a home run, only that he can get on base, with a possibility of scoring later.

In fact, our circuit jurisprudence establishes that the movant need not establish a

“probability” of success, taking all things into consideration. The merits of

Plaintiffs’ substantial claims warrant a more complete review. I do not mean to

suggest that Plaintiffs will definitely prevail on the merits, but merely that she has

presented a sufficient case on the merits. She raises legal issues necessitating the

grant of the preliminary injunction and should be afforded an opportunity to defend

the merits of her claims. Adjudication on the merits is impossible if we do not

grant the injunction.

Finally, I note that awarding an injunction is an equitable decision. We have

broad powers to fashion a remedy in equity. We are required to balance the


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.