[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 05-11556
_______________________
FILED
U.S. COURT OF APPEALS
D.C. Docket No. CV-05-00530-T ELEVENTH CIRCUIT
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.
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Appeal from the United States District Court
for the Middle District of Florida
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ON PETITION FOR EXPEDITED REHEARING EN BANC
(Opinion March 23, 2005)
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
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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
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
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Writs Act.2
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
2
I do not address the portion of the panel opinion that affirms the district court’s denial of
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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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.
8