FILED
ELEVENTH
CIRCUIT
March 23,
2005
THOMAS K.
KAHN
CLERK
[PUBLISH]
IN THE UNITED STATES
COURT OF APPEALS
FOR THE ELEVENTH
CIRCUIT
No.
05-11556
D. C. Docket No.
CV-05-00530-T
THERESA MARIA
SCHINDLER SCHIAVO,
incapacitated ex rel,
Robert Schindler and
Mary Schindler, her
parents and next friends,
Plaintiffs-Appellants,
versus
MICHAEL
SCHIAVO,
as guardian of the
person of
Theresa Marie
Schindler Schiavo, incapacitated,
JUDGE GEORGE W.
GREER,
THE HOSPICE OF THE
FLORIDA SUNCOAST, INC.,
Defendants-Appellees.
--------------------------
Appeal from the
Middle District of
--------------------------
(March 23,
2005)
Before CARNES,
PER
CURIAM:
Plaintiffs have
appealed the district court’s denial of their motion for
a
temporary restraining
order to require the defendants to transport Theresa
Marie
Our dissenting
colleague says that “the denial 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.
2
Schindler Schiavo to a
hospital to reestablish nutrition and hydration and for
any
medical treatment
necessary to sustain her life, and to require the state court
judge
defendant to rescind
his February 25, 2005 order directing removal of nutrition
and
hydration from Schiavo
and to restrain him from issuing any further orders
that
would discontinue
nutrition and hydration. 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.
3
granted, which are
whether the movant has established: (1) a substantial
likelihood
of success on the
merits; (2) that irreparable injury will be suffered if the relief
is
not granted; (3) that
the threatened injury outweighs the harm the relief
would
inflict on the
non-movant; and (4) that entry of the relief would serve the
public
interest. See Ingram,
50 F.3d at 900; Siegel v. LePore, 234 F.3d 1163, 1176
(11th
Cir. 2000) (en banc).
Requests for emergency injunctive relief are not
uncommon
in federal court and
sometimes involve decisions affecting life and
death.
Controlling precedent
is clear that injunctive relief may not be granted unless
the
plaintiff establishes
the substantial likelihood of success criterion. See Siegel,
234
F.3d at 1176; see also
Grupo Mexicano de Desarrollo v. Alliance Bond Fund,
Inc.,
527
claims would not meet
the likelihood of success criterion.”).
Applying those
factors, the district court determined that the last
three
weighed in favor of
granting the temporary restraining order. The court
reasoned
that because those
three factors were met, plaintiffs only had to show a
substantial
case on the merits.
After analyzing each of plaintiffs’ claims, the district
court
concluded they had
failed to show a substantial case on the merits as to any of
the
claims.2
While the district
court conducted de novo review of plaintiffs’ claims,
we
review the district
court’s denial of temporary injunctive relief only for an abuse
of
Part II of the dissent
argues that we 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
longer.
4
discretion. This scope
of review will lead to reversal only if the district
court
applies an incorrect
legal standard, or applies improper procedures, or relies
on
clearly erroneous
factfinding, or if it reaches a conclusion that is
clearly
unreasonable or
incorrect. Klay v. United Healthcare, Inc., 376 F.3d 1092,
1096
(11th Cir. 2004); Chi.
Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d
1304,
1309 (11th Cir. 2001).
Short of that, an abuse of discretion standard
recognizes
there is a range of
choice within which we will not reverse the district court even
if
we might have reached
a different decision. See McMahon v. Toto, 256 F.3d
1120,
1128 (11th Cir. 2001);
Rasbury v. Internal Revenue Serv. (In re Rasbury), 24
F.3d
159, 168-69 (11th Cir.
1994). 3
For the reasons
explained in the district court’s opinion, we agree that
the
plaintiffs have failed
to demonstrate a substantial case on the merits of any of
their
claims. We also
conclude that the district court’s carefully thought-out decision
to
deny temporary relief
in these circumstances is not an abuse of discretion.
4
The principal theme of
plaintiffs’ argument against the district court’s
denial
of a temporary
restraining order is that Pub. L. No. 109-3, which Congress
enacted
to enable them to
bring this lawsuit, mandates that injunctive relief be granted
to
5
enable them to have a
full trial on the merits of their claims. Pub. L. No. 109-3
is
an extraordinary piece
of legislation, and it does many things. Defendants
contend
that the legislation
is so extraordinary that it is unconstitutional in several
respects.
We need not decide
that question. For purposes of determining whether
temporary
or preliminary
injunctive relief is appropriate, we indulge the usual
presumption
that congressional
enactments are constitutional.
1303 (11th Cir. 2004).
It is enough for present purposes that in enacting Pub.
L.
No. 109-3 Congress did
not alter for purposes of this case the
long-standing
general law governing
whether temporary restraining orders or
preliminary
injunctions should be
issued by federal courts.
There is no provision
in Pub. L. No. 109-3 addressing whether or under
what
conditions the
district court should grant temporary or preliminary relief in
this
case. There is no more
reason in the text of the Act to read in any special
rule
about temporary or
preliminary relief than there would be to read in a special
rule
about deciding the
case before trial on Fed.R.Civ.P. 12(b)(6) or summary
judgment
grounds. Not only
that, but Congress considered and specifically
rejected
provisions that would
have mandated, or permitted with favorable implications,
the
grant of the pretrial
stay. There is this enlightening exchange in the
legislative
history concerning the
Senate bill that was enacted:
Mr. LEVIN. Mr.
President, I rise to seek clarification from
the
majority leader about
one aspect of this bill, the issue of whether
Congress has mandated
that a Federal court issue a stay pending
determination of the
case.
6
Mr. FRIST. I would be
pleased to help clarify this issue.
Mr. LEVIN. Section 5
of the original version of the
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
Senator from
bill. Nothing in the
current bill or its legislative history mandates
a
stay. I would assume,
however, the Federal court would grant a stay
based on the facts of
this case because Mrs. Schiavo would need to
be
alive in order for the
court to make its determination.
Nevertheless,
this bill does not
change current law under which a stay is
discretionary.
Mr. LEVIN. In light of
that assurance, I do not object to the
unanimous consent
agreement under which the bill will be
considered
by the Senate. I do
not make the same assumption as the majority
leader makes about
what a Federal court will do. Because the
discretion of the
Federal court is left unrestricted in this bill, I will
not
exercise my right to
block its consideration.
151 Cong. Rec.
S3099-100 (daily ed. Mar. 20, 2005) (colloquy between
Sens.
Levin
& Frist).
Contrary to the
dissent’s assertion, we do not believe that the text 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.
7
This enlightening
exchange does not contradict the plain meaning of Pub.
L.
No. 109-3, but instead
reinforces it. Plainly, Congress knew how to change the
law
to favor these
plaintiffs to the extent that it collectively wished to do so. That
is
what the changes it
did make, including those to standing law, the
Rooker-Feldman
doctrine, and
abstention, demonstrate. When Congress explicitly modifies
some
pre-existing rules of
law applicable to a subject but says nothing about other
rules
of law, the only
reasonable reading is that Congress meant no change in the rules
it
did not mention. The
dissent characterizes the language of the Act as clear. It is
on
this point: the
language of the Act clearly does not purport to change the
law
concerning issuance of
temporary or preliminary relief. 5
To interpret Pub. L.
No. 109-3 as requiring that temporary or
preliminary
relief be entered
regardless of whether it is warranted under pre-existing law
would
go beyond reading into
the Act a provision that is not there. It would require us
to
read into the Act a
provision that Congress deliberately removed in order to
clarify
that pre-existing law
did govern this issue.
Nor do we find
convincing plaintiffs’ argument that in reaching its
decision
to deny the motion for
a temporary restraining order the district court violated
Pub.
L. No. 109-3 by
considering the procedural history of extensive state
court
litigation. The
plaintiffs’ complaint and other filings in the district court
asserted
8
that they had not been
afforded procedural due process by the state courts.
Their
pleadings and brief in
the district court and this Court are replete with citations
to
and discussion about
the state court proceedings and decisions. In
deciding
whether the plaintiffs
had shown a substantial case on the merits of their
federal
procedural due process
claims, the district court had to consider the
prior
proceedings in state
court. There is no way to consider a claim that the state
court
proceedings violated
the Due Process Clause without examining what
those
proceedings were. In
obedience to Pub. L. No. 109-3 the district court
considered
the federal
constitutional claims de novo and made its own independent
evaluation
of
them.
Plaintiffs have also
moved this Court under the All Writs Act, 28
U.S.C.
§ 1651(a), for
emergency injunctive relief pending appeal, asking us to order
the
same temporary or
preliminary relief that we have concluded the district court
did
not abuse its
discretion in denying. They are supported in that motion by
a
Statement of Interest
filed by the
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.”
purpose of the power
codified in that statute is to allow courts “to protect
the
jurisdiction they
already have, derived from some other source.” Klay, 376 F.3d
at
1099. It gives a
“residual source of authority to issue writs that are not
otherwise
covered by statute”
and is an “extraordinary remedy that . . . is essentially
equitable
9
and, as such, not
generally available to provide alternatives to other,
adequate
remedies at law.”
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).
10
Klay, 376 F.3d at 1101
n.13.
There is no denying
the absolute tragedy that has befallen Mrs. Schiavo.
We
all have our own
family, our own loved ones, and our own children. However,
we
are called upon to
make a collective, objective decision concerning a question
of
law. In the end, and
no matter how much we wish Mrs. Schiavo had never
suffered
such a horrible
accident, we are a nation of laws, and if we are to continue to be
so,
the pre-existing and
well-established federal law governing injunctions as well
as
Pub. L. No. 109-3 must
be applied to her case. While the position of our
dissenting
colleague has
emotional appeal, we as judges must decide this case on the
law.
AFFIRMED; PETITION FOR
INJUNCTIVE RELIEF DENIED.6
11
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.
12
each decree to the
necessities of the particular case. Flexibility rather than
rigidity
has distinguished it.
The qualities of mercy and practicality have made equity
the
instrument for nice
adjustment and reconciliation between the public interest
and
private needs as well
as between competing private claims.” Swann v.
Mecklenburg Bd. of
Educ., 402
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
13
create any substantive
federal jurisdiction, it empowers federal courts “to
issue
writs in aid of
jurisdiction previously acquired on some other independent
ground,”
see Brittingham v.
Comm’r, 451 F.2d 315, 317 (5th Cir. 1971), and codifies
the
“federal courts’
traditional, inherent power to protect the jurisdiction they
already
have.” Klay , 376 F.3d
at 1099.
An injunction under
the All Writs Act is an extraordinary remedy, one
that
“invests a court with
a power that is essentially equitable, and as such,
not
generally available.”
Clinton v. Goldsmith, 526
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.
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.”
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.
14
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
15
only result in
manifest injustice, but it would thwart Congress’s clearly
expressed
command that
Plaintiffs’ claims be given de novo review by a federal
court.
Given the
extraordinary circumstances of this case, we are fully within
our
power to issue an
injunction “in aid of [our] jurisdiction” pursuant to the All
Writs
Act. Under the Act,
“[a] court may enjoin almost any conduct ‘which,
left
unchecked, would have
. . . the practical effect of diminishing the court’s power
to
bring the litigation
to a natural conclusion.” Klay , 376 F.3d at 1102 (citing Barton
,
569 F.2d at 1359).
Federal courts may “compel acts necessary to promote
the
resolution of issues
in a case properly before it” including “issu[ing] orders to
aid
in conducting factual
inquiries.”
The issuance of an All
Writs Act injunction is, as mentioned earlier,
an
extraordinary remedy.
However, this case is clearly extraordinary.
Furthermore,
entry of an All Writs
Act injunction is necessary to preserve federal jurisdiction
to
hear Plaintiffs’
claims. My research has not revealed any precedent which
clearly
prohibits the entry of
an All Writs Act injunction in a situation where a few
days’
delay is “necessary or
appropriate in aid of” federal court jurisdiction. 28
U.S.C.
1651. In contrast,
refusing to grant the equitable relief would, through
Theresa
Schiavo’s death, moot
the case and eliminate federal jurisdiction.
This deprivation would
directly contravene Congress’s recent
enactment
granting jurisdiction
in this case. An Act for the relief of the parents of
Theresa
Marie Schiavo, Pub. L.
No. 109-3 § 2 (Mar. 21, 2005). The first step in
statutory
interpretation
requires that courts apply the plain meaning of the statutory
language
16
unless it is
ambiguous.
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
discretionary.”
an explicit stay
provision because, given the already-existing discretionary
power
of federal courts to
issue injunctions in aid of jurisdiction, it would have
been
redundant and
unnecessary. Therefore, the majority’s assertion that the text of
the
statute limits or
eliminates our power to enter an injunction is
misplaced.
Here, we have
Congress’s clear mandate requiring the federal courts
to
consider the actual
merits of Plaintiff’s claims. Congress intended for this case
to
be reviewed with a
fresh set of eyes. We are not called upon to consider
the
17
wisdom of this
legislation. In granting this injunction we would merely
effectuate
Congress’s
intent.
If Congress had
intended that federal review of the issues raised by
Plaintiffs
be given customary and
ordinary treatment, that review would be confined
to
consideration of the
denial of the motion for a writ of habeas corpus in Case
No.
05-11517. There,
consideration of Plaintiffs’ constitutional claims would
be
limited by the
substantial deference that is afford to previous state
court
determinations. Yet,
Congress went to great lengths to remove many of
those
limitations. First,
the legislation eliminates any “standing” barriers to
the
commencement of an
action by Plaintiffs. Secondly, the legislation gives
the
Middle District of
Florida entirely new consideration over any claim of a
violation
of Theresa Schiavo’s
constitutional rights, without respect to “any prior state
court
determination and
regardless of whether such a claim has previously been
raised,
considered, or decided
in state court proceedings.” The legislation goes
even
further to eliminate
any exhaustion requirements. Congress obviously
intended
that this case be
considered by federal courts without the customary
limitations.
Today, we are not
called upon to second-guess the wisdom of Congress, but
to
apply the law it has
passed.
II. Preliminary
Injunction
At first glance,
Plaintiffs’ request for an injunction does not appear as
strong
as their claim
pursuant to the All Writs Act. However, I believe that an
injunction
is appropriate and, at
the very least, we should issue an injunction to permit
the
18
district court to
review to review Plaintiffs’ claims on the
merits.
To prevail on their
request for injunctive relief, Plaintiffs must
demonstrate
the following: (1) a
substantial likelihood of success on the merits; (2)
irreparable
injury if the
injunction is not issued; (3) threatened injury to the movant
outweighs
the potential damage
that the proposed injunction may cause the defendants;
and
(4) the injunction
will not be adverse to the public interest. See All Care
Nursing
Serv., Inc. v.
(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
19
ultimate success at
final hearing with the consequences of immediate
irreparable
injury which could
possibly flow from the denial of preliminary relief.” Siegel
v.
Lepore, 234 F.3d 1163,
1178 (11th Cir. 2000) (en banc).
As we stated in
Gonzalez , “where the balance of the equities weighs
heavily
in favor of granting
the [injunction], the movant need only show a substantial
case
on the merits.”
Gonzalez, 2000 WL 381901 at *1 (internal citations
omitted)
(alteration in
original). In this case, the balance of the equities weighs heavily
in
favor of granting the
injunction. We determine the balance of the equities
by
examining the three
final factors required to grant a preliminary
injunction.
Garcia-Mir , 781 F.2d
at1453.
“A showing of
irreparable harm is the sine qua non of injunctive
relief.”
omitted). Here, the
immediate irreparable injury is not only possible, it
is
imminent. I am aware
of no injury more irreparable than death. Clearly,
the
threatened injury of
death outweighs any harm the proposed injunction may
cause,
i.e. reinserting the
feeding tube. In fact, I fail to see any harm in reinstating
the
feeding tube. On the
other hand, a denial of the request for injunction will result
in
the death of Theresa
Schiavo. Finally, an injunction in this case clearly would
not
be adverse to public
interest, thus satisfying the fourth and final criteria
necessary
to grant a preliminary
injunction. Upon reviewing these three factors, it is
obvious
that the equities
weigh heavily in favor of granting the
injunction.
20
I now consider the
first prong, whether Plaintiffs presented a substantial
case
on the merits. In the
complaint, Plaintiffs claim that Theresa Schiavo’s
Fourteenth
Amendment due process
rights were violated in that she was not provided a
fair
and impartial trial,
she was not given adequate procedural due process, and she
was
not afforded equal
protection of the laws. Further, Plaintiffs contend that
Theresa
Schiavo’s First
Amendment freedom to exercise her religion has been burdened
by
the state court’s
order to remove the feeding tube. Plaintiffs also allege a
violation
of the
§
2000cc-1(a).
The establishment of a
“substantial likelihood for success on the merits” is
a
heavy burden, but not
an insurmountable one. A movant need not establish that
he
can hit a home run,
only that he can get on base, with a possibility of scoring
later.
In fact, our circuit
jurisprudence establishes that the movant need not establish
a
“probability” of
success, taking all things into consideration. The merits
of
Plaintiffs’
substantial claims warrant a more complete review. I do not mean
to
suggest that
Plaintiffs will definitely prevail on the merits, but merely that she
has
presented a sufficient
case on the merits. She raises legal issues necessitating
the
grant of the
preliminary injunction and should be afforded an opportunity to
defend
the merits of her
claims. Adjudication on the merits is impossible if we do
not
grant the
injunction.
Finally, I note that
awarding an injunction is an equitable decision. We
have
broad powers to
fashion a remedy in equity. We are required to balance
the
21
equities, and when we
do, we should find that the gravity of the irreparable
injury
Theresa Schiavo would
suffer could not weigh more heavily in Plaintiffs’ favor.
In
contrast, there is
little or no harm to be found in granting this motion for
a
temporary injunction
and deciding the full merits of the dispute.
For the foregoing
reasons, I respectfully dissent.