FILED

U.S. COURT OF APPEALS

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 MARIE 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 United States District Court

for the Middle District of Florida

_______________________

ON PETITION FOR EXPEDITED REHEARING EN BANC

(Opinion March 23, 2005)
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Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH,

DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON, and

PRYOR, Circuit Judges.

O R D E R:

The Court having been polled at the request of one of the members of the

Court and a majority of the Circuit Judges who are in regular active service not

having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the Suggestion of Rehearing En Banc is DENIED.

/s/ J. L. Edmondson 

 CHIEF JUDGE

 
 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court

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adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to

October 1, 1981.

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TJOFLAT, Circuit Judge, dissenting from the denial of rehearing en banc:

The All Writs Act, 28 U.S.C. § 1651(a), authorizes us to “issue all writs

necessary or appropriate in aid of [our] jurisdiction[].” “Regarding pending

proceedings, a court may enjoin 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 v. United Healthcare Group, Inc., 376 F.3d 1092, 1102

(11th Cir. 2004) (quoting ITT Community Development Corp. v. Barton, 569 F.2d

1351, 1359 (5th Cir. 1978) ). 1

We have jurisdiction in this case. See Pub. L. No. 109-3 (March 21, 2005). 

A district court’s denial of a motion for a preliminary injunction, as well as an

appellate decision affirming such an order, ordinarily contemplate that there will

be further proceedings on the question whether to grant a permanent injunction. 

In this case, however, if we do not enter an injunction, further proceedings will be

moot, i.e., we will lose jurisdiction. It is, therefore, clear that the discretion

conferred by the All Writs Act permits us to enter whatever orders are necessary to

preserve our jurisdiction and thereby bring this litigation “to a natural conclusion.”

Accordingly, I think the panel erred in denying emergency relief under the All
 I do not address the portion of the panel opinion that affirms the district court’s denial of 2

a preliminary injunction. An injunction under the All Writs Act would by itself permit the

district court to proceed to the merits of the case and a final decision granting or denying a

permanent injunction.

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Writs Act.

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The panel holds that the All Writs Act is not available “where the relief

sought is in essence a preliminary injunction.” For this proposition, it relies on

Florida Medical Association v. U.S. Department of Health, Education & Welfare,

601 F.2d 199 (5th Cir. 1979), and a footnote from Klay, supra, that simply

explains Florida Medical Association’s holding. Although I agree that the All

Writs Act cannot be used simply to circumvent the requirements for a preliminary

injunction, I do not agree that Florida Medical Association applies to prevent the

issuance of an injunction under the Act in every case in which a party has sought

the same relief through a motion for an ordinary preliminary injunction. In this

case, we should enter an injunction under the All Writs Act not because doing so

is necessary to avoid “irreparable injury,” but rather because it is “necessary or

appropriate in aid of [our] jurisdiction[].” 28 U.S.C. § 1651(a).

In Florida Medical Association,

the [plaintiffs], on behalf of all Florida physicians whose patients

were beneficiaries of the Medicare program in 1977, brought a class

action suit against the Department of Health, Education and Welfare

to enjoin publication of a list which identifies by name every
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physician in the United States who treated Medicare beneficiaries in

1977, and states the amount of income he or she received from the

program in that year. Plaintiffs alleged . . . that publication of the list

would violate the Freedom of Information Act, the Privacy Act, and

their right to privacy protected by the First, Fifth and Ninth

Amendments to the Constitution.

Florida Medical Association, 601 F.2d at 201 (citations omitted). Although the

parties in the case had submitted all evidence on the merits of their claims, the

district court was not yet ready to make a decision on their request to enter a

preliminary injunction. Because the district court believed that publication of the

list would render the claims moot, it simply enjoined publication of the list

pending its decision on the motion for a preliminary injunction. In doing so, it

relied in part on the All Writs Act. Id. at 201-02.

We reversed and stated,

While the All Writs Act empowers a district court to fashion

extraordinary remedies when the need arises, it does not authorize a

district court to promulgate an ad hoc procedural code whenever

compliance with the [Federal Rules of Civil Procedure] proves

inconvenient. While publication of the list would appear to moot the

controversy, Rule 65 provides sufficient protection for the

jurisdiction of the district court.

Id. at 202. We, therefore, vacated and remanded with instructions that the district

judge give the motion for a preliminary injunction “his immediate attention.” Id.

at 203. We also noted that the defendant had agreed not to publish the list until
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the district court ruled on the motion, assuming that the ruling was forthcoming

within thirty days of the issuance of our mandate. Id. at 203 n.4 

Recently, in Klay, we explained that “[t]he writ issued in Florida Medical

Association was perhaps the textbook definition of a preliminary injunction—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. We then stated that, “[a]t most, Florida Medical

Association stands for the proposition that a court may not issue an order under

the All Writs Act, circumventing the traditional requirements for a injunction,

when a party is in reality seeking a ‘traditional’ injunction.” Id.

Florida Medical Association is distinguishable from this case for two

reasons. First, Florida Medical Association can be viewed as holding simply that

district courts cannot use the All Writs Act simply to delay ruling on a motion for

a preliminary injunction, i.e., to grant a sort of preliminary preliminary injunction. 

Indeed, we reasoned that the All Writs Act “does not authorize a district court to

promulgate an ad hoc procedural code whenever compliance with the [Federal

Rules of Civil Procedure] proves inconvenient.” Florida Medical Association,

601 F.2d at 202. We also noted that the ordinary procedures for entertaining a

motion for a preliminary injunction provided sufficient protection for the court’s
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jurisdiction. Id. In this case, in contrast, a preliminary injunction has been denied,

and there will never be a hearing on a permanent injunction if we do not issue an

injunction under the All Writs Act.

Second, the injunction issued in Florida Medical Association was, as Klay

said, “perhaps the textbook definition of a preliminary injunction—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. Despite the fact that Florida Medical Association noted that

“publication of the list would appear to moot the controversy,” I find it difficult to

believe that was truly the case, given the nature of the plaintiffs’ claims. Even if

the list were published, it would seem that the doctors would still have an interest

in its de-publication, or even a claim for damages resulting from constitutional

violations.

Finally, if Florida Medical Association does stand for the proposition for

which it is cited by the panel, I submit that it is wrong because it deprives of us of

authority to preserve our jurisdiction that the All Writs Act expressly confers. 

Accordingly, we should grant rehearing en banc to overrule it.
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WILSON, Circuit Judge, dissenting:

I dissent from the denial of rehearing en banc for the reasons stated in Judge

Tjoflat's dissent, as well as the reasons already articulated in my dissent from the

panel's decision.