End of federal appeals in Schiavo case?
on Mar 26, 2005 at 10:25 am
UPDATE Saturday morning: News organizations are reporting that attorneys for the Schindler family have decided not to pursue en banc review of the latest federal case in the Eleventh Circuit or review in the Supreme Court. NBC News quoted attorney David Gibbs III as saying: “The federal courts have ruled that the law passed by Congress is a nullity. There are no claims that could be brought forward for Terri, with how the courts have construed the law.” The network said Gibbs planned one more appeal in state court, if the parents lost later Saturday in a state trial court.
A three-judge panel of the Eleventh Circuit, acting unanimously this time, on Friday evening refused to order the resumption of food and water for a brain-damaged Florida woman, Theresa Marie Schiavo (docket 05-11628).
Acting two days after the same panel — by a 2-1 vote — had refused an earlier emergency plea by Mrs. Schiavo’s parents, the three judges upheld a District Court judge’s refusal to issue a temporary restraining order. The panel gave the parents, Robert and Mary Schindler, until 8 a.m. Saturday to seek en banc review. The en banc Court had refused to review the case on Wednesday. The parents’ attorneys said that maneuver would be attempted anew.
Circuit Judge Charles R. Wilson, who had dissented from the earlier denial of relief, joined in the result on Friday, saying that “the plaintiffs have been unable to come forward in their second amended complaint with any new claims palpably alleging the denial of a right secured by the Constitution or laws of the United States.”
The other judges on the panel, in a decision that tracked closely a ruling earlier Friday by U.S. District Judge James D. Whittemore in Tampa, concluded that the parents had not made a substantial case in their five new claims. The language of the “per curiam” opinion reads very much like a rejection on the merits of those five claims, rather than simply a conclusion that the claims would not be likely to succeed if the case goes to trial.
The “per curiam” opinion relied upon “the law of the case” doctrine in refusing to review a number of basic propositions it had decided on Wednesday in the earlier proceeding. The panel thus sent at least an implied signal that re-casting the legal claims into new counts through a further-amended complaint would have little promise in any further round in federal court.
The prospect remains that the case will reach the Supreme Court promptly after the Circuit Court completes action, probably on Saturday. (Not likely now, see Update, at the top of this post.)
(Thanks to Howard Bashman of How Appealing blog for a link to the new opinion by the panel. The Circuit Court’s own Internet-accessed electronic records system did not contain, until after midnight Friday, even a docket for the parents’ new request for emergency relief. The routine inaccessibility of materials on file at that Court under the Pacer system compares most unfavorably with the complete and easily used electronic case filing system at the District Court in Tampa.)
