11th Circuit Grants Schiavo Review

Atlanta’s 11th Circuit Court of Appeals has agreed to hear the Terri Schiavo case, despite having refused to do so twice in the last ten days.

Federal Appeals Court OKs Schiavo Review (AP)

In a rare legal victory for Terri Schiavo’s parents, a federal appeals court early Wednesday agreed to consider their request for a new hearing on whether to reconnect their severely brain-damaged daughter’s feeding tube. The 11th U.S. Circuit Court of Appeals in Atlanta ruled without comment and did not indicate when it would consider the motion. Last week, the same court twice ruled against Schiavo’s parents, Bob and Mary Schindler, who are trying to keep her alive.

But time was running out Bob Schindler described his daughter as “failing” on Tuesday, her 12th day without nourishment. “She still looks pretty darn good under the circumstances,” Schindler said. “You can see the impact of no food and water for 12 days. Her bodily functions are still working. We still have her.” Doctors have said Schiavo, 41, would probably die within a week or two of the tube being removed.

Wednesday’s ruling was a ray of hope for the Schindlers, who have lost a string of court battles over their daughter’s fate. The case has wound its way through six courts for seven years; the U.S. Supreme Court declined to intervene five times.

This is most bizarre. For one thing, if they were going to do this, they should have done it on the first pass, given that Terri Schiavo could well die at this point even if her feeding tube is reinsterted. Plus, if the NPR report on this is correct, they’re going to actually hear the case as a trier of fact rather than merely determining whether proper procedures were followed in the lower courts. That’s not the charge of the appelate courts.

Update (0814):

KJ Lopez thinks this “a cruel joke.”
Ace, not a religious man, is praying the Schindlers win.
JoelF wonders if it’s “too little, too late.”
Ed Morrissey is outraged this took so long.

Update (0829): An updated version of the AP story is much clearer:

The 11th U.S. Circuit Court of Appeals in Atlanta issued a written order without comment late Tuesday allowing Bob and Mary Schindler to file the appeal, even though the court had set a March 26 deadline for doing so. In a one-sentence order, the court said: “The Appellant’s emergency motion for leave to file out of time is granted.”

The court didn’t say when it would decide whether to grant a hearing. Last week, it twice ruled against the Schindlers, who are trying to keep their daughter alive. In requesting a new hearing, the Schindlers argued that a federal judge in Tampa should have considered the entire state court record and not just the procedural history when he ruled against the parents.

So, this is just a technical ruling allowing them to actually file a request for another hearing. The question is whether they’ll grant the injunction to reinsert the feeding tube in the meantime. One would presume that they would.

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James Joyner
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James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. IB Bill says:

    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.

  2. Red says:

    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.

    And this is the beloved legal system that the Left beholdens as perfect and all knowing.

  3. The decision is simply permission to ask the federal appellate court for a full-court (“en banc“) 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.

    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 request for a temporary restraining order (which should have been a request for a preliminary injunction, but the court let this slide) mandating that the feeding tube be put back while they petitioned the court for a review of the evidence – 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 because they must show that they would have a “reasonable likelihood” of winning the full case to receive a TRO before the case is heard, and the judge rules that they do not have such a likelihood on any 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 back to state court with new allegations, and are rejected

    – The Shindlers go back to federal court and re-file their request for a TRO, 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 another 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 “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 Cruzan decision, which was marred by the minor facts that Cruzan does not actually require that standard, and that that was the standard the state court had, in fact, explicitly applied anyway, under Florida state law)

    – The Shindlers appealed this second denial of their TRO request to the federal appellate court; their appeal was rejected 3-0 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)

    – The Shindlers do not bother to file a request for a full-court (“en banc“) hearing

    – On March 29 or 30, several days after the deadline for requesting an en banc hearing, the Shindlers file a request for permission to file a request for an en banc hearing even though it is technically too late

    That’s where we are today: the full federal appellate court agreed to accept their late request for an en banc 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 en banc 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.

    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.