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	<title>Comments on: 11th Circuit Grants Schiavo Review</title>
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		<title>By: Kevin T. Keith</title>
		<link>http://www.outsidethebeltway.com/archives/11th_circuit_grants_schiavo_review/comment-page-1/#comment-40919</link>
		<dc:creator>Kevin T. Keith</dc:creator>
		<pubDate>Wed, 30 Mar 2005 17:16:12 +0000</pubDate>
		<guid isPermaLink="false">/?p=9839#comment-40919</guid>
		<description>The decision is simply permission to ask the federal appellate court for a full-court (&quot;&lt;i&gt;en banc&lt;/i&gt;&quot;) hearing on the Shindlers&#039; most-recent loss at the federal appellate level. They had forfeited that right by not filing an appeal in time, then several days later changed their minds and asked for permission to file that request late. Permission was granted, but that doesn&#039;t mean the full court is going to grant their request - it didn&#039;t do so the first time, and their second request is even weaker than the first.

It gets clearer if you take it step-by-step. It breaks down like this:

[Shindlers lose repeatedly at state court and Supreme Court levels]

- Congress passes a law allowing them to demand a review of the evidence in federal court

- Shindlers file a &lt;i&gt;request for a temporary restraining order&lt;/i&gt; (which should have been a request for a preliminary injunction, but the court let this slide) mandating that the feeding tube be put back &lt;i&gt;while they petitioned the court for a review of the evidence&lt;/i&gt; - the petition alleges 5 reasons why they should get one, all of them focused on claims of error at the state court level

- The request for the TRO is denied by a federal judge &lt;i&gt;because they must show that they would have a &quot;reasonable likelihood&quot; of winning the full case&lt;/i&gt; to receive a TRO before the case is heard, and the judge rules that they do not have such a likelihood on &lt;i&gt;any&lt;/i&gt; of their 5 reasons

- They appeal to the federal appellate court, and are denied 2-1 by a 3-member panel; the 2 in the majority hold that the federal judge was correct and the Shindlers had nothing in their 5 reasons for the TRO; the panel also says they can appeal to the full 12-member appellate court, but must do so immediately

- They appeal to the 12-member court and lose; two members of the court, including the one who dissented on the 3-member panel, dissent from the ruling, but the total vote for and against is not known because that information is not released

- The Shindlers appeal to the Supreme Court and are rejected without comment

- The Shindlers go &lt;i&gt;back to state court&lt;/i&gt; with new allegations, and are rejected

- The Shindlers go &lt;i&gt;back to federal court&lt;/i&gt; and &lt;i&gt;re-file their request for a TRO&lt;/i&gt;, this time alleging their original 5 reasons (having to do with supposed errors at the state court level), plus 4 more reasons; they then file &lt;i&gt;another&lt;/i&gt; amended request, bringing the total to 5 old reasons and 5 new reasons

- The amended request goes to the same federal judge who heard the original request for a TRO; he denies the first 5 reasons because they have already been adjudicated, then denies each of the new 5 reasons on various grounds (in some cases, they were making rather absurd claims, such as that Michael Schiavo was in violation of the Americans With Disabilities Act, which applies to businesses and governments, because he was a &quot;state agent&quot; because he had appeared in state court; another was that state court had erred in failing to apply the &quot;clear and convincing evidence&quot; standard as mandated by the &lt;u&gt;Cruzan&lt;/u&gt; decision, which was marred by the minor facts that &lt;u&gt;Cruzan&lt;/u&gt; does not actually require that standard, and that &lt;i&gt;that was the standard the state court had, in fact, explicitly applied anyway, under Florida state law&lt;/i&gt;)

- The Shindlers appealed this second denial of their TRO request to the federal appellate court; their appeal was &lt;a href=&quot;http://www.ca11.uscourts.gov/opinions/ops/200511628.pdf&quot;&gt;rejected 3-0&lt;/a&gt; by the same 3-member panel that had heard their first appeal; the appellate panel also agrees that the first 5 (old) reasons for the TRO are moot, and then decisively rejects the new 5 reasons for much the same reasons as the federal circuit judge did, appending his ruling to theirs for emphasis; the previously-dissenting judge in this case concurred with the denial, saying the Shindlers had &quot;been unable to come forward in their second amended complaint with any new claims palpably alleging the denial of a right&quot;; the panel also says that they may appeal to the full 12-member appellate court but they must do so immediately (by March 26)

- The Shindlers do not bother to file a request for a full-court (&quot;&lt;i&gt;en banc&lt;/i&gt;&quot;) hearing

- On March 29 or 30, several days after the deadline for requesting an &lt;i&gt;en banc&lt;/i&gt; hearing, the Shindlers file a request &lt;i&gt;for permission to file a request for an en banc hearing&lt;/i&gt; even though it is technically too late

That&#039;s where we are today: the full federal appellate court agreed to accept their late request for an &lt;i&gt;en banc&lt;/i&gt; hearing of the previously-denied second request for a temporary restraining order. Today&#039;s decision merely gives the Shindlers the right to get a full-court hearing on their latest loss in appeals court, even though they had technically forfeited that right by not bothering to ask for it at the time. This new hearing they are asking for is the same, procedurally, as the previous &lt;i&gt;en banc&lt;/i&gt; hearing - a review of the 3-member panel&#039;s review of the federal judge&#039;s denial of their request for a TRO, this time focused on their 5 new reasons.

Will the full court overturn the panel&#039;s ruling and order a TRO on the grounds of these new reasons? No. Remember, these are reasons the Shinders&#039; lawyer didn&#039;t even bother to mention in his first request for a TRO, and didn&#039;t bother to appeal to the full appellate court after the circuit judge and appellate panel slapped them down. They are so weak that even the judge who voted to grant the TRO on the basis of the first 5 reasons voted not to on the basis of the new ones. It&#039;s a desperation move - so desperate that even the Shindlers didn&#039;t want to bother with it originally.</description>
		<content:encoded><![CDATA[<p>The decision is simply permission to ask the federal appellate court for a full-court ("<i>en banc</i>") hearing on the Shindlers' most-recent loss at the federal appellate level. They had forfeited that right by not filing an appeal in time, then several days later changed their minds and asked for permission to file that request late. Permission was granted, but that doesn't mean the full court is going to grant their request - it didn't do so the first time, and their second request is even weaker than the first.</p>
<p>It gets clearer if you take it step-by-step. It breaks down like this:</p>
<p>[Shindlers lose repeatedly at state court and Supreme Court levels]</p>
<p>- Congress passes a law allowing them to demand a review of the evidence in federal court</p>
<p>- Shindlers file a <i>request for a temporary restraining order</i> (which should have been a request for a preliminary injunction, but the court let this slide) mandating that the feeding tube be put back <i>while they petitioned the court for a review of the evidence</i> - the petition alleges 5 reasons why they should get one, all of them focused on claims of error at the state court level</p>
<p>- The request for the TRO is denied by a federal judge <i>because they must show that they would have a "reasonable likelihood" of winning the full case</i> to receive a TRO before the case is heard, and the judge rules that they do not have such a likelihood on <i>any</i> of their 5 reasons</p>
<p>- They appeal to the federal appellate court, and are denied 2-1 by a 3-member panel; the 2 in the majority hold that the federal judge was correct and the Shindlers had nothing in their 5 reasons for the TRO; the panel also says they can appeal to the full 12-member appellate court, but must do so immediately</p>
<p>- They appeal to the 12-member court and lose; two members of the court, including the one who dissented on the 3-member panel, dissent from the ruling, but the total vote for and against is not known because that information is not released</p>
<p>- The Shindlers appeal to the Supreme Court and are rejected without comment</p>
<p>- The Shindlers go <i>back to state court</i> with new allegations, and are rejected</p>
<p>- The Shindlers go <i>back to federal court</i> and <i>re-file their request for a TRO</i>, this time alleging their original 5 reasons (having to do with supposed errors at the state court level), plus 4 more reasons; they then file <i>another</i> amended request, bringing the total to 5 old reasons and 5 new reasons</p>
<p>- The amended request goes to the same federal judge who heard the original request for a TRO; he denies the first 5 reasons because they have already been adjudicated, then denies each of the new 5 reasons on various grounds (in some cases, they were making rather absurd claims, such as that Michael Schiavo was in violation of the Americans With Disabilities Act, which applies to businesses and governments, because he was a "state agent" because he had appeared in state court; another was that state court had erred in failing to apply the "clear and convincing evidence" standard as mandated by the <u>Cruzan</u> decision, which was marred by the minor facts that <u>Cruzan</u> does not actually require that standard, and that <i>that was the standard the state court had, in fact, explicitly applied anyway, under Florida state law</i>)</p>
<p>- The Shindlers appealed this second denial of their TRO request to the federal appellate court; their appeal was <a href="http://www.ca11.uscourts.gov/opinions/ops/200511628.pdf">rejected 3-0</a> by the same 3-member panel that had heard their first appeal; the appellate panel also agrees that the first 5 (old) reasons for the TRO are moot, and then decisively rejects the new 5 reasons for much the same reasons as the federal circuit judge did, appending his ruling to theirs for emphasis; the previously-dissenting judge in this case concurred with the denial, saying the Shindlers had "been unable to come forward in their second amended complaint with any new claims palpably alleging the denial of a right"; the panel also says that they may appeal to the full 12-member appellate court but they must do so immediately (by March 26)</p>
<p>- The Shindlers do not bother to file a request for a full-court ("<i>en banc</i>") hearing</p>
<p>- On March 29 or 30, several days after the deadline for requesting an <i>en banc</i> hearing, the Shindlers file a request <i>for permission to file a request for an en banc hearing</i> even though it is technically too late</p>
<p>That's where we are today: the full federal appellate court agreed to accept their late request for an <i>en banc</i> hearing of the previously-denied second request for a temporary restraining order. Today's decision merely gives the Shindlers the right to get a full-court hearing on their latest loss in appeals court, even though they had technically forfeited that right by not bothering to ask for it at the time. This new hearing they are asking for is the same, procedurally, as the previous <i>en banc</i> hearing - a review of the 3-member panel's review of the federal judge's denial of their request for a TRO, this time focused on their 5 new reasons.</p>
<p>Will the full court overturn the panel's ruling and order a TRO on the grounds of these new reasons? No. Remember, these are reasons the Shinders' lawyer didn't even bother to mention in his first request for a TRO, and didn't bother to appeal to the full appellate court after the circuit judge and appellate panel slapped them down. They are so weak that even the judge who voted to grant the TRO on the basis of the first 5 reasons voted not to on the basis of the new ones. It's a desperation move - so desperate that even the Shindlers didn't want to bother with it originally.</p>
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		<title>By: Red</title>
		<link>http://www.outsidethebeltway.com/archives/11th_circuit_grants_schiavo_review/comment-page-1/#comment-40916</link>
		<dc:creator>Red</dc:creator>
		<pubDate>Wed, 30 Mar 2005 16:50:40 +0000</pubDate>
		<guid isPermaLink="false">/?p=9839#comment-40916</guid>
		<description>Waiting 10 days and 2 denials later. So what was the Court&#039;s rush? Its not like Terri is starving to death? Oh wait, she is. 

And this is the beloved legal system that the Left beholdens as perfect and all knowing.</description>
		<content:encoded><![CDATA[<p>Waiting 10 days and 2 denials later. So what was the Court's rush? Its not like Terri is starving to death? Oh wait, she is. </p>
<p>And this is the beloved legal system that the Left beholdens as perfect and all knowing.</p>
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		<title>By: JackLewis.net</title>
		<link>http://www.outsidethebeltway.com/archives/11th_circuit_grants_schiavo_review/comment-page-1/#comment-40889</link>
		<dc:creator>JackLewis.net</dc:creator>
		<pubDate>Wed, 30 Mar 2005 14:53:26 +0000</pubDate>
		<guid isPermaLink="false">/?p=9839#comment-40889</guid>
		<description>&lt;strong&gt;And they said there was no hope&lt;/strong&gt;
From MSNBC: In a rare legal victory for Terri Schiavo&#039;s parents, a federal appeals court agreed to consider their request...</description>
		<content:encoded><![CDATA[<p><strong>And they said there was no hope</strong><br />
From MSNBC: In a rare legal victory for Terri Schiavo's parents, a federal appeals court agreed to consider their request...</p>
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		<title>By: Scared Monkeys</title>
		<link>http://www.outsidethebeltway.com/archives/11th_circuit_grants_schiavo_review/comment-page-1/#comment-40879</link>
		<dc:creator>Scared Monkeys</dc:creator>
		<pubDate>Wed, 30 Mar 2005 13:29:00 +0000</pubDate>
		<guid isPermaLink="false">/?p=9839#comment-40879</guid>
		<description>&lt;strong&gt;Finally, Terriâs Parents Get a Win&lt;/strong&gt;
</description>
		<content:encoded><![CDATA[<p><strong>Finally, Terriâs Parents Get a Win</strong></p>
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		<title>By: Gay Orbit</title>
		<link>http://www.outsidethebeltway.com/archives/11th_circuit_grants_schiavo_review/comment-page-1/#comment-40877</link>
		<dc:creator>Gay Orbit</dc:creator>
		<pubDate>Wed, 30 Mar 2005 13:02:16 +0000</pubDate>
		<guid isPermaLink="false">/?p=9839#comment-40877</guid>
		<description>&lt;strong&gt;And Again&lt;/strong&gt;
A federal appeals court early Wednesday agreed to consider a petition for a new hearing on whether to reconnect Terri Schiavo&#039;s feeding tube. The ruling by the 11th Circuit Court of Appeals came as the severely brain-damaged woman entered her 13th day...</description>
		<content:encoded><![CDATA[<p><strong>And Again</strong><br />
A federal appeals court early Wednesday agreed to consider a petition for a new hearing on whether to reconnect Terri Schiavo's feeding tube. The ruling by the 11th Circuit Court of Appeals came as the severely brain-damaged woman entered her 13th day...</p>
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		<title>By: NIF</title>
		<link>http://www.outsidethebeltway.com/archives/11th_circuit_grants_schiavo_review/comment-page-1/#comment-40876</link>
		<dc:creator>NIF</dc:creator>
		<pubDate>Wed, 30 Mar 2005 12:43:46 +0000</pubDate>
		<guid isPermaLink="false">/?p=9839#comment-40876</guid>
		<description>&lt;strong&gt;Chamberlain of Magnetic Strip Cards&lt;/strong&gt;
Today&#039;s dose of NIF - News, Interesting &amp; Funny ... pray for Terri!</description>
		<content:encoded><![CDATA[<p><strong>Chamberlain of Magnetic Strip Cards</strong><br />
Today's dose of NIF - News, Interesting &#038; Funny ... pray for Terri!</p>
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		<title>By: Ramblings' Journal</title>
		<link>http://www.outsidethebeltway.com/archives/11th_circuit_grants_schiavo_review/comment-page-1/#comment-40875</link>
		<dc:creator>Ramblings' Journal</dc:creator>
		<pubDate>Wed, 30 Mar 2005 12:28:15 +0000</pubDate>
		<guid isPermaLink="false">/?p=9839#comment-40875</guid>
		<description>&lt;strong&gt;11th Circuit to consider Schindler&#039;s request on Schiavo&lt;/strong&gt;
We&#039;ve awakened this morning to news that the 11th Circuit Court here in Atlanta has decided to hear an emergency motion from Bob and Mary Schindler, parents of Terri Schiavo.This makes the third time the Schindlers have appealed to the...</description>
		<content:encoded><![CDATA[<p><strong>11th Circuit to consider Schindler's request on Schiavo</strong><br />
We've awakened this morning to news that the 11th Circuit Court here in Atlanta has decided to hear an emergency motion from Bob and Mary Schindler, parents of Terri Schiavo.This makes the third time the Schindlers have appealed to the...</p>
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		<title>By: IB Bill</title>
		<link>http://www.outsidethebeltway.com/archives/11th_circuit_grants_schiavo_review/comment-page-1/#comment-40873</link>
		<dc:creator>IB Bill</dc:creator>
		<pubDate>Wed, 30 Mar 2005 11:47:23 +0000</pubDate>
		<guid isPermaLink="false">/?p=9839#comment-40873</guid>
		<description>Hear the case as a trier of fact? That doesn&#039;t sound right. The 11th Circuit could just order the district court to try the facts and report back. NPR got it wrong or something very weird is happening, or there&#039;s some loophole none of us know about.</description>
		<content:encoded><![CDATA[<p>Hear the case as a trier of fact? That doesn't sound right. The 11th Circuit could just order the district court to try the facts and report back. NPR got it wrong or something very weird is happening, or there's some loophole none of us know about.</p>
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		<title>By: Overtaken by Events</title>
		<link>http://www.outsidethebeltway.com/archives/11th_circuit_grants_schiavo_review/comment-page-1/#comment-40871</link>
		<dc:creator>Overtaken by Events</dc:creator>
		<pubDate>Wed, 30 Mar 2005 11:39:26 +0000</pubDate>
		<guid isPermaLink="false">/?p=9839#comment-40871</guid>
		<description>&lt;strong&gt;Better Late?&lt;/strong&gt;
I was a little surprised to wake up and see that the 11th Circuit has granted review in the Schiavo...</description>
		<content:encoded><![CDATA[<p><strong>Better Late?</strong><br />
I was a little surprised to wake up and see that the 11th Circuit has granted review in the Schiavo...</p>
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