Application of President & Directors of Georgetown Col.

• Citation: 331 F.2d 1000
• Decision Date: 15 June 1964
• Docket Number: Misc. No. 2189.
• Parties: Application of the PRESIDENT AND DIRECTORS OF GEORGETOWN COLLEGE, INC., a Body Corporate.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

331 F.2d 1000 (1964)

Application of the PRESIDENT AND DIRECTORS OF GEORGETOWN COLLEGE, INC., a Body Corporate.

Misc. No. 2189.

United States Court of Appeals District of Columbia Circuit.

February 3, 1964.

Certiorari Denied June 15, 1964.

Messrs. Edward Bennett Williams and Peter R. Taft, Washington, D. C., were on the pleadings for applicant President and Directors of Georgetown College, Inc.

Before J. SKELLY WRIGHT, Circuit Judge, in Chambers.

Certiorari Denied June 15, 1964. See 84 S.Ct. 1883.

J. SKELLY WRIGHT, Circuit Judge.

Attorneys for Georgetown Hospital applied¹ for an emergency writ at 4:00 P.M., September 17, 1963, seeking relief from the action of the United States District Court for the District of Columbia denying the hospital's application for permission to administer blood transfusions to an emergency patient.² The application recited that "Mrs. Jesse E. Jones is presently a patient at Georgetown University Hospital," "she is in extremis," according to the attending physician "blood transfusions are necessary immediately in order to save her life," and "consent to the administration thereof can be obtained neither from the patient nor her husband."³ The patient and her husband based their refusal on their religious beliefs as Jehovah's Witnesses. The order sought provided that the attending physicians "may" adminiser such transfusions to Mrs. Jones as might be "necessary to save her life." After the proceedings detailed in Part IV of this opinion, I signed the order at 5:20 P.M.⁴

I.

Initially, it may be well to put this matter into fuller legal context, including "the nature of the controversy, the relation and interests of the parties, and the relief sought in the instant case."⁵ The application was in the nature of a petition in equity to the United States District Court for the District of Columbia, a court of general jurisdiction. Though not fully articulated therein, the application sought a decree in the nature of an injunction and declaratory judgment⁶ to determine the legal rights and liabilities between the hospital and its agents on the one hand, and Mrs. Jones and her husband on the other. Mrs. Jones subsequently appeared in the cause, in this court, as respondent to the application. The treatment proposed by the hospital in its application was not a single transfusion, but a series of transfusions. The hospital doctors sought a court determination before undertaking either this course of action or some alternative. The temporary order issued was more limited than the order proposed in the original application, in that the phrase "to save her life" was added, thus limiting the transfusions in both time and number. Such a temporary order to preserve the life of the patient was necessary if the cause were not to be mooted by the death of the patient.

At any time during the series of transfusions which followed, the cause could have been brought on for hearing by motion before the motions division of this court,⁷ and the order either vacated, continued, or superseded by an order of a more permanent nature, such as an interlocutory injunction. Neither the patient, her husband, nor the hospital, however, undertook further proceedings in this court or in the District Court during the succeeding days while blood was being administered to the patient.⁸

II.

That a "case or controversy" existed in the District Court, and before this court, seems clear under the tests laid down by the Supreme Court:

"A `controversy\' in this sense must be one that is appropriate for judicial determination. Osborn v. United States Bank, 9 Wheat. 738, 819 6 L. Ed. 204. A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot. United States v. Alaska S.S. Co., 253 U.S. 113, 116 40 S.Ct. 448, 64 L.Ed. 808. The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. South Spring Gold Co. v. Amador Medean Gold Mining Co., 145 U.S. 300, 301 12 S.Ct. 921, 36 L.Ed. 712; Fairchild v. Hughes, 258 U.S. 126, 129 42 S.Ct. 274, 66 L.Ed. 499; Massachusetts v. Mellon, 262 U.S. 447, 487, 488 43 S.Ct. 597, 67 L.Ed. 1078. It must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. See Muskrat v. United States, supra 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246; Texas v. Interstate Commerce Comm\'n, 258 U.S. 158, 162 42 S.Ct. 261, 66 L. Ed. 531; New Jersey v. Sargent, 269 U.S. 328, 339, 340 46 S.Ct. 122, 70 L.Ed. 289; Liberty Warehouse Co. v. Grannis, 273 U.S. 70 47 S.Ct. 282, 71 L.Ed. 541; New York v. Illinois, 274 U.S. 488, 490 47 S.Ct. 661, 71 L.Ed. 1164; Willing v. Chicago Auditorium Assn., 277 U.S. 274, 289, 290 48 S.Ct. 507, 72 L.Ed. 880; Arizona v. California, 283 U.S. 423, 463, 464 51 S.Ct. 522, 75 L.Ed. 1154; Alabama v. Arizona, 291 U.S. 286, 291 54 S.Ct. 399, 78 L.Ed. 798; United States v. West Virginia, 295 U.S. 463, 474, 475 55 S.Ct. 789, 79 L.Ed. 1546; Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 324 56 S.Ct. 466, 80 L.Ed. 688. Where there is such a concrete case admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged, the judicial function may be appropriately exercised although the adjudication of the rights of the litigants may not require the award of process or the payment of damages. Nashville, C. & St. L. Ry. Co. v. Wallace, supra 288 U.S. 249, p. 263 53 S.Ct. 345, 77 L.Ed. 730; Tutun v. United States, 270 U.S. 568, 576, 577 46 S.Ct. 425, 70 L.Ed. 738; Fidelity National Bank & Trust Co. v. Swope, 274 U.S. 123, 132 47 S.Ct. 511, 71 L. Ed. 959; Old Colony Trust Co. v. Commissioner, supra, 279 U.S. 716 p. 725 49 S.Ct. 499, 73 L.Ed. 918. And as it is not essential to the exercise of the judicial power that an injunction be sought, allegations that irreparable injury is threatened are not required. Nashville, C. & St. L. Ry. Co. v. Wallace, supra 288 U.S. 249, p. 264 53 S.Ct. 345, 77 L.Ed. 730."

Aetna Life Ins. Co. v. Haworth, supra Note 5, 300 U.S. at 240-241, 57 S.Ct. 461, at 464, 81 L.Ed. 617.

Clearly the "case or controversy" raised here is "justiciable," that is, of the type that courts may be called upon to decide. See Baker v. Carr, supra Note 2, 369 U.S. at 198, 82 S.Ct. at 699, 7 L.Ed.2d 663. Were a patient in a hospital, unable to leave, to protest its planned treatment, for the most fundamental reasons, it could hardly be questioned that the judiciary would have jurisdiction to rule upon the issue of the patient's, and the hospital's, rights and duties. In this area, failure of the courts to declare the law would not place the responsibility for decision in the executive or legislative branches of government. Judicial abdication would create a legal vacuum to be filled only by the notions, and remedies, of the private parties themselves. And if the courts are to act in this area, damage suits post facto are a poor substitute for timely declaratory or injunctive relief. Thus if Mrs. Jones had brought an action to restrain the hospital from administering the transfusions, a justiciable controversy would certainly have been presented. The fact that it was the hospital which sought judicial declaration of its rights does not make the controversy less justiciable.⁹ Moreover, while the question presented is of utmost importance to those concerned, it is of such infrequent occurrence as to be unlikely to attract the attention of the legislature. Courts sit to decide such questions.

III.

Reference to the Court of Appeals, immediately after the denial of the application by the District Court, was proper under the power of federal courts to issue "all writs necessary or appropriate in aid of their respective jurisdictions." 28 U.S.C. § 1651.¹⁰ Such "authority is not confined to the issuance of writs in aid of a jurisdiction already acquired by appeal but extends to those cases which are within its appellate jurisdiction although no appeal has been perfected." Roche v. Evaporated Milk Assn., 319 U.S. 21, 25, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943). These "common law writs, like equitable remedies, may be granted or withheld in the sound discretion of the court." Ibid.; La Buy v. Howes Leather Co., 352 U.S. 249, 255, 77 S.Ct. 309, 313, 1 L.Ed.2d 290 (1956). The Federal Rules of Civil Procedure, Rule 62(g), recognize the "power of an appellate court or of a judge or justice thereof to * * * grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered." (Emphasis added.) Cf. Toledo Newspaper Co. v. United States, 6 Cir., 237 F. 986 (1916), affirmed, 247 U.S. 402, 38 S.Ct. 560, 62 L.Ed. 1186 (1918); Scripps-Howard Radio v. Federal Communications Comm'n, 316 U.S. 4, 62 S. Ct. 875, 86 L.Ed. 1229 (1942). And this court has provided in Rule 11 of its General Rules that an "injunction pending appeal from the district court in civil cases shall be governed by the applicable provisions of the Federal Rules of Civil Procedure," citing, inter alia, Rule 62 (g), F.R.Civ.P. Of course, whether or not there was jurisdiction to decide the merits, until the question of jurisdiction is determined, there was "authority from the necessity of the case to make orders to preserve the existing conditions and the subject of the petition * * *." United States v. Shipp, 203 U.S. 563, 573, 27 S.Ct. 165, 166 51 L.Ed. 319 (1906). Clearly there was "power to preserve existing conditions while * * * determining the authority to grant injunctive relief." United States v. United Mine Workers, 330 U.S. 258, 293, 67 S. Ct. 677, 695, 91 L.Ed. 884 (1947).

The power of a single judge to issue such emergency temporary writs...