                                                                       [PUBLISH]
CORRECTED

            IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT


                                                                   FILED
                                 No. 05-11556             U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                          D. C. Docket No.   CV-05-00530-T March 23, 2005
                                                              THOMAS K. KAHN
                                                                  CLERK
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
                             --------------------------
                                (March 23, 2005)


Before CARNES, HULL, and WILSON, Circuit Judges.

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.1 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

       1
          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.

                                                  2
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

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

        2
         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 justify
preliminary injunctive relief.

                                                    3
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


       3
           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.
       4
          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.

                                                   4
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.

                                            5
      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
      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).

                                           6
       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


        5
           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.

                                                   7
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


                                           8
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.


                                           9
Klay, 376 F.3d at 1101 n.13.

       There is no denying the absolute tragedy that has befallen Mrs. Schiavo. As

the Florida Second District Court of Appeals has observed, 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 re

Guardianship of Schiavo, ___ So. 2d ___, 2005 WL 600377, at *4 (Fla. 2d DCA

Mar. 16, 2005). 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




       6
           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).

                                                10
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


                                          11
equity jurisdiction has been the power of the Chancellor to do equity and to mould

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)1 (“When potential jurisdiction

exists, a federal court may issue status quo orders to ensure that once its

       1
         In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent the decisions of the former Fifth Circuit handed down prior to October 1, 1981.

                                               12
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


                                           13
entirely separate concerns.” Id. However, Plaintiffs must show that “some

ongoing 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

        2
           The majority opinion holds that the All Writs Act is not appropriate in this case because
“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
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


                                         15
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


                                          16
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 afforded 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


                                          17
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 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,


                                          18
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


                                           19
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.


                                          20
      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.




                                          21
                                                                                                                 Page 22
                         APPENDIX TO THE MAJORITY OPINION




                 THERESA M ARIE SCHINDLER SCHIAVO, Incapacitated ex rel., ROBERT

                     SCHINDLER and M ARY SCHINDLER, her Parents and Next Friends,

                 Plaintiffs, vs. M ICHAEL 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 M IDDLE DISTRICT OF

                                           FLORIDA, TAM PA DIVISION




                                                 2005 U.S. Dist. LEXIS 4265




                                               M arch 22, 2005, Decided




COUNSEL: [*1] For Theresa Marie Schindler Schiavo,               J. Felos, Felos & Felos, P.A., Dunedin, FL; Iris Bennett,

incapacitated ex rel, Robert Schindler and Mary Schindler,       Jenner & Block LLC, W ashington, DC; Randall C.

her parents and next friends, Plaintiff: David C. Gibbs, III,    Marshall, American Civil Liberties Union Foundation of

Gibbs Law Firm, Seminole, FL; George E. Tragos, Law              Florida, Inc., Miami, FL; Rebecca H. Steele, ACLU

Office of George E. Tragos, Clearwater, FL; Robert A.            Foundation of Florida, Inc., W est Central Florida Office,

Destro, Columbus School Of Law, W ashington, DC.                 Tampa, FL; Robert M. Portman, Jenner & Block,

                                                                 W ashington, DC; Thomas J. Perrelli, Jenner & Block,

For Michael Schiavo, as guardian of the person of Theresa        W ashington, DC.

Marie Schindler Schiavo, incapacitated, Defendant: George


                                                            22
                                                                                                                      Page 23
                         APPENDIX TO THE MAJORITY OPINION
For The Hospice of the Florida Suncoast, Inc., Defendant:
                                                                     ORDER
Gail Golman Holtzman, Constangy, Brooks & Smith, LLC,
                                                                     BEFORE THE COURT is Plaintiffs' M otion for
Tampa, FL; John W . Campbell, Constangy, Brooks &
                                                                 Temporary Restraining Order (Dkt. 2). In their motion,
Smith, LLC, Tampa, FL; Robin G. Midulla, Robin Greiwe
                                                                 Plaintiffs seek an order directing Defendants to Schiavo
Midulla, P.A., Tampa, FL.
                                                                 and Hospice to transport Theresa Schiavo to Morton Plant

                                                                 Hospital for any necessary medical treatment to sustain her
For Liberty Counsel, Inc., Amicus: Erik W . Stanley,
                                                                 life and to reestablish her nutrition and hydration. This
Liberty Counsel, Longwood, FL.
                                                                 action and Plaintiffs' motion were filed in response to an

                                                                 order of Pinellas County Probate Judge George W . Greer
For United States, Interested Party: Paul I. Perez, [*2]
                                                                 directing Defendant Schiavo, Theresa Schiavo's husband
U.S. Attorney's Office, M iddle District of Florida, Orlando,
                                                                 and plenary guardian, to discontinue her nutrition and
FL; W arren A. Zimmerman, U.S. Attorney's Office, Middle
                                                                 hydration.
District of Florida, Tampa, FL.

                                                                     The court [*3]        conducted a hearing on Plaintiffs'

For Morton Plant Hospital Association, Inc., Victor E.           motion after notice to Defendants. Upon consideration,

Gambone, M.D., M orton Plant M ease Primary Care, Inc.,          Plaintiffs' Motion for Temporary Restraining Order is

Stanton P. Tripodis, M .D., Interested Parties: James            denied.

Addison Martin, Jr., Macfarlane Ferguson & McM ullen,                Plaintiffs, the parents of Theresa Marie Schindler
Clearwater, FL; Jeffrey W . Gibson, MacFarlane Ferguson          Schiavo, brought this action pursuant to a Congressional
& McMullen, Clearwater, FL.                                      Act signed into law by the President during the early

                                                                 morning hours of March 21, 2005. n1 The Act, entitled "An
Gordon W ayne W atts, Interested Party, Pro se, Lakeland,        Act for the relief of the parents of Theresa Marie Schiavo,"
FL.                                                              provides that the:


JUDGES: JAM ES D. W HITTEMORE, United States                               United States District Court for the Middle
District Judge.                                                            District of Florida shall have jurisdiction to

                                                                           hear, determine, and render judgment on a
OPINIONBY: JAMES D. W HITTEM ORE                                           suit or claim by or on behalf of Theresa

                                                                           Marie Schiavo for the alleged violation of
OPINION:


                                                            23
                                                                                                                   Page 24
                          APPENDIX TO THE MAJORITY OPINION
       any right of T heresa Marie Schiavo under                 The issue confronting the court is whether temporary

       the Constitution or laws of the United States             injunctive relief is warranted.

       relating to the withholding or withdrawal of
                                                                     Applicable Standards
       food, fluids, or medical treatment necessary
                                                                     W hile there may be substantial issues concerning [*5]
       to sustain life.
                                                                 the constitutionality of the Act, for purposes of considering

                                                                 temporary injunctive relief, the Act is presumed to be

                                                                 constitutional. Benning v. Georgia, 391 F.3d 1299, 1303
            n1 Pub. L. No. 109-3 (March 21, 2005).
                                                                 (11th Cir. 2004).

                                                                     The purpose of a temporary restraining order, like a
    Jurisdiction and Standing
                                                                 preliminary injunction, is to protect against irreparable

    The federal district courts are courts of limited            injury and preserve the status quo until the district court

jurisdiction, "empowered [*4] to hear only those cases . .       renders a meaningful decision on the merits. Canal Auth. of

. which have been entrusted to them by a jurisdictional          State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir.

grant authorized by Congress." University of S. Ala. v.          1974). A district court may grant a preliminary injunction

American Tobacco Co., 168 F.3d 405, 409 (11th Cir.               only if the moving party shows that:

1999) (quoting Taylor v. Appleton, 30 F.3d 1365, 1367

(11th Cir. 1994)). The plain language of the Act establishes            (1) it has a substantial likelihood of success

jurisdiction in this court to determine de novo "any claim of           on the merits;

a violation of any right of Theresa Schiavo within the scope

of this Act." The Act expressly confers standing to                     (2) irreparable injury will be suffered unless

Plaintiffs as her parents to bring any such claims. There can           the injunction issues;

be no substantial question, therefore, that Plaintiffs may

bring an action against a party to the state court                      (3) the threatened injury to the movant

proceedings in this court for claimed constitutional                    outweighs whatever damage the proposed

deprivations or violations of federal law occasioned on                 injunction may cause the opposing party;

their daughter relating to the withholding or withdrawal of             and

food, fluids, or medical treatment necessary to sustain her

life. W hether the Plaintiffs may bring claims in federal               (4) if issued, the injunction would not be

court is not the issue confronting the court today, however.            adverse to the public interest.


                                                            24
                                                                                                                     Page 25
                         APPENDIX TO THE MAJORITY OPINION
                                                                 essential that Plaintiffs establish a substantial likelihood of

Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097            success on the merits, which the court finds they have not

(11th Cir. 2004); Suntrust Bank v. Houghton Mifflin Co.,         done.

268 F.3d 1257, 1265 (11th Cir. 2001). A preliminary
                                                                     The first of the four prerequisites to temporary
injunction is "an extraordinary [*6] and drastic remedy"
                                                                 injunctive relief is generally the most important. Gonzalez
and is "not to be granted unless the movant 'clearly
                                                                 v. Reno, No. 00-11424-D, 2000 WL 381901 at *1 (11th Cir.
established the burden of persuasion' as to the four
                                                                 April 19, 2000). The necessary level or degree of
prerequisites." United States v. Jefferson County, 720 F.2d
                                                                 possibility of success on the merits will vary according to
1511, 1519 (11th Cir. 1983) (quoting Canal Auth. of State
                                                                 the court's assessment of the other factors. Ruiz v. Estelle,
of Florida, 489 F.2d at 573). n2
                                                                 650 F.2d 555, 565 (5th Cir. 1981) (citing with auth.

                                                                 Washington Metro. Area Transit Comm 'n v. Holiday

            n2 The Act does not address the traditional          Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841, 843

       requirements for temporary injunctive relief.             (D.C. Cir. 1977)).

       Accordingly, these standards control whether
                                                                     A substantial likelihood of success on the merits
       temporary      injunctive    relief   is   warranted,
                                                                 requires a showing of only likely or probable, rather than
       notwithstanding Congress' intent that the federal
                                                                 certain, success. Home Oil Company, Inc. v. Sam's East,
       courts determine de novo the merits of Theresa
                                                                 Inc., 199 F. Supp. 2d 1236, 1249 (M.D. Ala. 2002)
       Schiavo's claimed constitutional deprivations.
                                                                 (emphasis in original); see also Ruiz, 650 F.2d at 565.

                                                                 "W here the 'balance [*8] of the equities weighs heavily in

    It is apparent that Theresa Schiavo will die unless          favor of granting the [injunction],' the movant need only

temporary injunctive relief is granted. This circumstance        show a 'substantial case on the merits.'" Garcia-Mir v.

satisfies the requirement of irreparable injury. Moreover,       Meese, 781 F.2d 1450, 1453 (11th Cir. 1986) (citing Ruiz,

that threatened injury outweighs any harm the proposed           650 F.2d at 565).

injunction would cause. To the extent Defendants urge that
                                                                     This court has carefully considered the Act and is
Theresa Schiavo would be harmed by the invasive
                                                                 mindful of Congress' intent that Plaintiffs have an
procedure reinserting the feeding tube, this court finds [*7]
                                                                 opportunity to litigate any deprivation of Theresa Schiavo's
that death outweighs any such harm. Finally, the court is
                                                                 federal rights. The Court is likewise mindful of Congress'
satisfied that an injunction would not be adverse to the
                                                                 directive   that a   de   novo    determination     be   made
public interest. Notwithstanding these findings, it is
                                                                 "notwithstanding any prior State court determination." In


                                                            25
                                                                                                                    Page 26
                          APPENDIX TO THE MAJORITY OPINION
resolving Plaintiffs' Motion for Temporary Restraining            Fourteenth Amendment right to a fair and impartial trial

Order, however, the court is limited to a consideration of        was violated, contending that the presiding judge "became

the constitutional and statutory deprivations alleged by          Terri's health care surrogate" and "also purported to act as

Plaintiffs in their Complaint and motion. Because Plaintiffs      an impartial trial judge in the same proceeding." (Dkt. 1,

urge due process violations are premised primarily on the         PP 47-48). They [*10] allege that once he "became an

procedures followed and orders entered by Judge Greer in          advocate for Terri's death, it became impossible for Judge

his official capacity as the presiding judge in the dispute       Greer to maintain his role as an impartial judge in order to

between Michael Schiavo and Plaintiffs, their Complaint           review his own decision that Terri would want to die."

necessarily requires a consideration of the procedural            (Dkt. 1, P 49). Finally, they allege that "Judge Greer's dual

history of the state court case to determine whether there is     and simultaneous role as judge and health-care surrogate

a showing of any due process [*9] violations. On the face         denied Terri a fair and impartial trial." (Dkt. 1, P 50).

of   these   pleadings,   Plaintiffs   have   asserted   five     These contentions are without merit.

constitutional and statutory claims. To obtain temporary
                                                                      Florida's statutory scheme, set forth in Chapter 765,
injunctive relief, they must show a substantial likelihood of
                                                                  contemplates a process for designation of a proxy in the
success on at least one claim. n3
                                                                  absence of an executed advance directive and provides for

                                                                  judicial resolution of disputes arising concerning decisions

                                                                  made by the proxy. See Fla. Stat. § 765.401(1). W here a
             n3 Plaintiffs have submitted affidavits of health
                                                                  decision by the proxy is challenged by the patient's other
       care professionals regarding Theresa's medical
                                                                  family members, it is appropriate for the parties to seek
       status, treatment techniques and therapies which are
                                                                  "expedited judicial intervention." Fla. Slat. § 765.105.
       available and their opinions regarding how and
                                                                  Applying this statutory scheme, the state court appointed
       whether these treatments might improve Theresa's
                                                                  Michael Schiavo, Theresa Schiavo's husband, as plenary
       condition. Plaintiffs have not, however, discussed
                                                                  guardian and proxy for Theresa. Thereafter, a dispute arose
       these affidavits in their papers and how they relate
                                                                  between M ichael Schiavo and Plaintiffs concerning
       to the claimed constitutional deprivations.
                                                                  whether to continue Theresa on artificial life support, and

                                                                  Judge Greer, the presiding [*11] judge, was called upon to
     A. Count I - Violation of Fourteenth Amendment
                                                                  resolve that dispute.
Due Process Right to a Fair and Impartial Trial
                                                                      Florida's statutory scheme contemplates a judicial
     Plaintiffs allege in Count I that Theresa Schiavo's
                                                                  resolution of these competing contentions. See In re


                                                             26
                                                                                                                      Page 27
                           APPENDIX TO THE MAJORITY OPINION
Guardianship of Browning, 568 So. 2d 4, 16 (Fla. 1990).                    Stat. §    744.309(1)(b). Contrary to Plaintiffs'

As the Florida Second District Court of Appeal explained,                  argument, § 744.309 merely prohibits a judge from

where two "suitable surrogate decision-maker[s] . . .could                 acting as a guardian except under certain specified

not agree on the proper decision, ..." the guardian may                    familial circumstances.

invoke "the trial court's jurisdiction to allow the trial court

to   serve as the surrogate decision-maker." In re
                                                                       Plaintiffs' argument effectively ignores the role of the
Guardianship of Schiavo, 780 So. 2d 176, 178 (Fla. Dist.
                                                                   presiding judge as judicial fact-finder and decision-maker
Ct. App. 2001) ("Schiavo I"). Pursuant to Florida law,
                                                                   under the Florida statutory scheme. By fulfilling his
therefore, Judge Greer, as the presiding judge, had a
                                                                   statutory judicial responsibilities, the judge was not
statutory obligation to resolve the competing contentions
                                                                   transformed into an advocate merely because his rulings are
between Michael Schiavo and Plaintiffs.          Fla. Stat. §
                                                                   unfavorable to a litigant. Plaintiffs' contention that the
765.105.
                                                                   statutory [*13] scheme followed by Judge Greer deprived

     Plaintiffs offer no authority for their contention that       Theresa Schiavo of an impartial trial is accordingly without

Judge Greer compromised the fairness of the proceeding or          merit. Defendant is correct that no federal constitutional

the impartiality of the court by following Florida law and         right is implicated when a judge merely grants relief to a

fulfilling his statutory responsibilities under Chapter 765 as     litigant in accordance with the law he is sworn to uphold

presiding judge and decision-maker. n4 Plaintiffs' argument        and follow. This Court concludes that Plaintiffs cannot

is that Judge Greer could not fulfill his judicial duties          establish a substantial likelihood of success on the merits of

impartially while at [*12]     the same time fulfilling his        Count I.

statutory duty to resolve the competing contentions of the
                                                                       B. Count II - Violation of Fourteenth Amendment
parties as surrogate or proxy "to make decisions about life-
                                                                   Procedural Due Process Rights
prolonging procedures." In re Guardianship of Schiavo,
                                                                       In Count II, Plaintiffs contend that Theresa Schiavo's
No. 2D05-968, 2005 WL 600377 at *4 (Fl. Ct. App. March
                                                                   Fourteenth Amendment procedural due process rights were
16, 2005) ("Schiavo VI").
                                                                   violated by Judge Greer's (1) failure to appoint a guardian

                                                                   ad litem (D kt. 1, P 53), (2) failure to appoint an

             n4   During    argument,    Plaintiffs'   counsel     independent attorney to represent Theresa Schiavo's legal

        explained their criticism of Judge Greer's official        rights (Dkt. 1, P 54) and (3) denial of what Plaintiffs

        actions as Judge Greer having exceeded his lawful          describe as "access to court" by his "failure to ever meet

        authority by acting as a guardian contrary to Fla.         Terri personally" and failure to "personally assess Terri's


                                                              27
                                                                                                                        Page 28
                           APPENDIX TO THE MAJORITY OPINION
level of cognition and her responsiveness" (Dkt. 1, P 55).          guardian ad litem, there would be no constitutional

                                                                    deprivation here because three guardians ad litem were
     Initially, the Court finds no authority recognizing as a
                                                                    appointed to represent Theresa Schiavo's interests over the
matter of federal constitutional or statutory right that a state
                                                                    course of the litigation.
trial judge is required to "personally assess" a ward's "level

of cognition [*14] and ...responsiveness." Fla. Stat. §

744.3725, on which Plaintiffs rely, is applicable to an
                                                                                  n5 The record also reveals that attorney John
action seeking to commit the ward to a facility and other
                                                                              H. Pecarek was appointed as guardian ad litem
circumstances not relevant to this case. Plaintiffs'
                                                                              early in the proceedings. In re Guardianship of
conclusory allegation that Judge Greer denied Theresa
                                                                              Schiavo, No. 90-2908-GD-003 (Pinellas Cty. Circ.
Schiavo access to court by not requiring her presence is
                                                                              Ct., Feb. 17, 1994). Late in the litigation, at the
without merit.
                                                                              request of Florida Governor Jeb Bush, Pinellas

     W ith respect to Plaintiffs' contention that Judge Greer                 County Chief Judge David Demers also appointed

violated Theresa Schiavo's procedural due process rights by                   attorney Jay W olfson, M.D. as guardian ad litem.

failing to appoint a guardian ad litem, the record belies this                Schiavo VI, 2005 WL 600377 at *1, n. 2.

contention. In June, 1998, Judge Rives sua sponte

appointed Richard L. Pearse, Jr., Esq. as guardian ad litem
                                                                        Plaintiffs' last contention is that Theresa Schiavo's
"for the purpose of reviewing the request for termination of
                                                                    procedural due process rights were violated by Judge
life support on behalf of the wards [sic]." In re
                                                                    Greer's refusal to appoint an independent attorney to
Guardianship of Schiavo, No. 90-2908-GD-003 (Pinellas
                                                                    represent her interests. The due process clause is [*16]
Cty. Circ. Ct., June 11, 1998). The record reflects that
                                                                    implicated when there is a "deprivation of life, liberty or
attorney Pearse "fully complied with his June 11, 1998
                                                                    property at the hands of the government." Grayden v.
Court Order of appointment" and was accordingly
                                                                    Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003). If one or
discharged on June 16, 1999 by Judge Boyer of the Pinellas
                                                                    more of these constitutionally protected interests is at stake,
County Circuit Court. Pearse served as guardian ad litem
                                                                    as they undoubtedly are in this case, the due process clause
for one year and ultimately testified as a witness in the trial
                                                                    requires notice and the opportunity to be heard. Id. "It is .
before Judge Greer. In re Guardianship of Schiavo, [*15]
                                                                    . . fundamental that the right to notice and an opportunity to
 N o. 90-2908-GD-003 (Pinellas Cty. Circ. Ct., Feb. 28,
                                                                    be heard must be granted at a meaningful time and in a
2000). n5 Accordingly, assuming Fourteenth Amendment
                                                                    meaningful manner." Fuentes v. Cortes, 407 U.S. 67, 80
procedural due process requires the appointment of a
                                                                    (1972).     Unquestionably,    in   some   circumstances,     a


                                                               28
                                                                                                                         Page 29
                           APPENDIX TO THE MAJORITY OPINION
meaningful opportunity to be heard includes the right to be          by another "extensive hearing at which many highly

represented by counsel. However, "due process is a flexible          qualified physicians testified" to reconfirm that no

concept that varies with the particular circumstances of             meaningful treatment [*18] was available, and six appeals.

each case, and to determine the requirements of due process          As the Florida Second District Court of Appeal stated,

in a particular situation we must apply the balancing test           "few, if any, similar cases have ever been afforded this

articulated in Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed.          heightened level of process." Schiavo VI, 2005 WL 600377

2d 18 (1976)." Grayden, 345 F.3d at 1232-33.                         at *3.

     The Mathews balancing test requires consideration of                Throughout the proceedings, the parties, represented

three distinct factors: "First, the private interest that will be    by able counsel, advanced what they believed to be Theresa

affected by the official [*17] action; second, the risk of an        Schiavo's intentions concerning artificial life support. In

erroneous deprivation of such interest through the                   Florida, counsel for M ichael Schiavo as Theresa Schiavo's

procedures used, and the probable value, if any, of                  guardian owed a duty of care to Theresa Schiavo in his

additional or substitute procedural safeguards; and finally,         representation. Op. Atty. Gen. 96-94 (November 20, 1996).

the Government's interest, including the function involved           Finally, with respect to presenting the opposing perspective

and the fiscal and administrative burdens that the additional        on Theresa Schiavo's wishes, the Court cannot envision

or substitute procedural requirement would entail."                  more effective advocates than her parents and their able

Mathews, 424 U.S. at 335.                                            counsel. Plaintiffs have not shown how an additional

                                                                     lawyer appointed by the court could have reduced the risk
     The first factor weighs the interest at stake. Plaintiffs
                                                                     of erroneous rulings.
urge that Theresa Schiavo's life is at stake, while Defendant

argues that her liberty to exercise her right to refuse                  W ith regard to the third factor, without question the

medical treatment is the interest being adjudicated. In either       state of Florida has an interest in the welfare of its citizens

case, a fundamental and important interest is implicated in          and in the legal process for adjudicating disputed claims

the court proceedings determining the removal of artificial          such as were presented to Judge Greer in this case, as

life support.                                                        evidenced by Florida's well defined statutory scheme. The

                                                                     court's inherent authority to appoint [*19] a guardian ad
     The second Mathews factor requires consideration of
                                                                     litem, consult independent experts or appoint an attorney if
the risk of erroneous deprivation under the procedures used
                                                                     warranted protects the state's interest.
and the probable value of the additional protections urged

by the Plaintiffs. Theresa Schiavo's case has been                       Balancing the three factors, this court concludes that

exhaustively litigated, including an extensive trial, followed       Theresa Schiavo's life and liberty interests were adequately


                                                                29
                                                                                                                   Page 30
                         APPENDIX TO THE MAJORITY OPINION
protected by the extensive process provided in the state         Schiavo's right to exercise her religion has been burdened

courts. Defendant M ichael Schiavo and Plaintiffs, assisted      by the state court's order to remove the feeding tube. W ith

by counsel, thoroughly advocated          their   competing      respect to Count IV of the Complaint, Plaintiffs allege a

perspectives on Theresa Schiavo's wishes. Another lawyer         claim under the Religious Land Use and Institutionalized

appointed by the court could not have offered more               Persons Act (42 U.S.C. § 2000cc-1), claiming that her

protection of Theresa Schiavo's interests. Accordingly,          rights to free exercise of her religion have been burdened

Plaintiffs have not established a substantial likelihood of      by the state court's order authorizing removal of her feeding

success on the merits on Count II.                               tube in that removal of the feeding tube "imposes a

                                                                 substantial burden on Terry's religious free exercise." That
    C. Count       Three - Violation of Fourteenth
                                                                 statute expressly requires, however, that "no government
Amendment Right to Equal Protection of the Law
                                                                 shall impose a substantial burden on the religious exercise
    For the same reasons relief under Count I was not
                                                                 of [*21] a person . . ." 42 U.S.C. § 2000cc(a) (emphasis
appropriate, the relief sought in Count III via the equal
                                                                 added).
protection clause is without merit. Plaintiff has not
                                                                     In Count V, Plaintiffs make a similar contention under
established a substantial likelihood of success on the merits
                                                                 the 42 U.S.C. § 1983 and the free exercise clause, alleging
of the claims set forth in Count III. See Cruzan v. Missouri
                                                                 that "Terry's religious beliefs are burdened" by execution of
Dept. of Health, 497 U.S. 261, 287 n.12, 111 L. Ed. 2d 224
                                                                 order "in that Terry is being forced to engage in an activity
(1990) ("The differences between the choice made by a
                                                                 contrary to the tenets of her Roman Catholic faith . . . ."
competent person to refuse [*20] medical treatment, and
                                                                 Plaintiffs allege that Defendants have a constitutional duty
the choice made for an incompetent person by someone
                                                                 to accommodate "Terry's sincerely-held religious beliefs."
else to refuse medical treatment, are so obviously different

that the State is warranted in establishing rigorous                 Undoubtedly, Terry Schiavo enjoys, by virtue of 42

procedures for the latter class of cases which do not apply      U.S.C. § 2000-cc(a), a statutorily protected right not to

to the former class.") (emphasis in original).                   have substantial burdens placed on her religious exercise by

                                                                 the government. The plain language of the statute prohibits
    D. Counts IV and V - Violation of Religious Land
                                                                 government from imposing a substantial burden on the
Use and Institutionalized Persons Act (RLUIPA) and
                                                                 religious exercise of an individual such as Theresa Schiavo.
Violation of First Amendment Free Exercise of Religion
                                                                 Similarly, the Free Exercise Clause contained in the First
Clause
                                                                 Amendment of the Constitution expressly protects the
    Plaintiffs bring Counts IV and V alleging that Theresa
                                                                 exercise of religion. In their Complaint, Plaintiffs allege


                                                            30
                                                                                                                   Page 31
                          APPENDIX TO THE MAJORITY OPINION
that the state court's order imposes a substantial burden on      appeal."); see also Dahl v. Akin, 630 F.2d 277, 281 (5th

Theresa Schiavo's free exercise of religion. (Complaint, P        Cir. 1980).

67).
                                                                      This court appreciates the gravity of the consequences

       In order [*22] to succeed on either claim, however,        of denying injunctive relief. Even under these difficult and

Plaintiffs must establish that the Defendants were state          time strained circumstances, however, and notwithstanding

actors. Plaintiffs' claims fail because neither Defendant         Congress' expressed interest in the welfare of Theresa

Schiavo nor Defendant Hospice are state actors. Moreover,         Schiavo, [*23] this court is constrained to apply the law to

the fact that the claims were adjudicated by a state court        the issues before it. As Plaintiffs have not established a

judge does not provide the requisite state action for             substantial likelihood of success on the merits, Plaintiffs'

purposes of the statute or the Fourteenth Amendment. See          Motion for Temporary Restraining Order (Dkt. 2) must be

Harvey v. Harvey, 949 F.2d 1127, 1133-34 (11th Cir.               DENIED.

1992)("Use of the courts by private parties does not
                                                                      DONE AND ORDERED in chambers this 22nd day
constitute an act under color of state law."); Torres v. First
                                                                  of March, 2005.
State Bank of Sierra County, 588 F.2d 1322, 1326-27 (10th
                                                                      JAM ES D. W HITTEM ORE
Cir. 1978)("W e do not think that the 'color of law' reference

in § 1983 was intended to encompass a case such as this               United States District Judge

one, where the only infirmities are the excesses of the court

order itself, . . . subject to the normal processes of




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