# Schiavo ex rel. Schindler v. Schiavo (403 F.3d 1223)/Opinion of the Court

* Court Documents
* Case Syllabus
* Decision per curiam
* Dissenting Opinion Wilson
[p1225] 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 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 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 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 [p1226] 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.C.t. 1961, 1978, 144 L. Ed. 2d 319 (1999) ("Plaintiffs with questionable claims would not meet the likelihood of success criterion.").
Applying those factors, the district court determined that the last three weighed in favor of granting the temporary restraining order. The court reasoned that because those three factors were met, plaintiffs only had to show a substantial case on the merits. After analyzing each of plaintiffs' claims, the district court concluded they had failed to show a substantial case on the merits as to any of the claims.
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 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 Healthgroup, 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 McMahan 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).
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.
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 [p1227] 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.C.t. 1740, 1748, 146 L. Ed. 2d 658 (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 [p1228] 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).
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.
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 [p1229] 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 "it 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. 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.

## APPENDIX TO THE MAJORITY OPINION

THERESA MARIE SCHINDLER SCHIAVO, Incapacitated ex rel., ROBERT SCHINDLER and MARY SCHINDLER, her Parents and Next Friends, Plaintiffs, vs. MICHAEL SCHIAVO, JUDGE GEORGE W. GREER and THE HOSPICE OF THE FLORIDA SUNCOAST, INC., Defendants.
Case No. 8:05-CV-530-T-27TBM
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA, TAMPA DIVISION
March 22, 2005, Decided
[EDITOR'S NOTE: THIS DOCUMENT IS REPORTED AT: 357 F. Supp.2d 1378 ]

## Notes

* ↑ Our dissenting colleague says that "the denial of Plaintiffs' request for an injunction frustrates Congress's intent, which is to maintain the status quo." Dissenting Op. at __. The status quo is that Mrs. Schiavo is not receiving nutrition and hydration. The plaintiffs do not want the status quo maintained. They want this Court or the district court to issue an injunction affirmatively requiring the respondents to change the status quo by bringing about the surgical procedure necessary to reinsert the feeding tube into Mrs. Schiavo.
* ↑ The dissent bemoans the fact that the merits of the plaintiffs' claims will never be litigated in federal court. The district court's finding regarding the first-prong injunctive relief factor reflects that those claims lack merit, or at least that the possibility of any merit is too low to justifypreliminary injunctive relief.
* ↑ Part II of the dissent argues that we should grant an injunction and discusses the four factors as though this Court were making the decision in the first instance. We are not. We are an appellate court reviewing the district court's decision. There is no occasion for us to decide whether to issue an injunction pending appeal, because the only appeal we have before us is from the district court's denial of a temporary restraining order, and we are deciding that appeal now.
* ↑ In arguing that an injunction should be issued, the dissent refers to "a situation where a few days' delay" is all that is necessary. That is not this situation. To afford the plaintiffs the pretrial discovery and full jury trial of all issues they demand would require a delay of many months, if not longer.
* ↑ Contrary to the dissent's assertion, we do not believe that the text of the Act limits or eliminates a court's power to grant temporary or preliminary relief. Exactly the contrary. Our position is that the Act, which does not mention that subject, and which was amended to remove a provision that would have changed the law, does not affect it at all. The district court applied settled law and so do we.
* ↑ A petition for rehearing or suggestion for rehearing en banc is not, of course, required before a petition for certiorari may be filed in the United States Supreme Court. If, however, a petition for rehearing or rehearing en banc is to be filed, it must be filed by 10:00 a.m. ET, March 23, 2005. See Fed.R.App.P. 35(c) & Fed.R.App.P. 40(a)(1).