*1 quo. To refuse status preserve the re- that the law
act, later to find unwilling action, I was quired a risk Margolius Ralph Bernard Messrs. on accept. to act I determined Washington, Deckelbaum, C.,D. were H. Jones, of life. pe- side pleadings H. on for Jessie
titioner. Edward Bennett Williams Messrs. Taft, Washington, C., R. D. Peter pleadings Di- on the for President and Georgetown Inc., College, rectors of opposition. Judge, Chief Before Bazelon, Washington, Miller, Fahy, Wilbur K. DI- Application AND of the PRESIDENT Wright Danaher, Burger, Bastian, COL- GEORGETOWN RECTORS OF banc, Judges, en McGowan, INC., Body Corporate. LEGE, Chambers. Misc. 2189. No. PER CURIAM. Appeals Court of States pleading Upon Columbia Circuit. District of consideration of a Rehearing styled En “Petition Feb. 1964. Banc” in the above-entitled matter and opposition thereto, it is Ordered the court en banc petition is denied. said Judge (con- WASHINGTON, Circuit curring) : hospital, and left the Mrs. Jones has expired has order of 17th the by these circum- its own terms. Under my stances, precluded we are in view passing ques- on the merits holding presented, and tions hence from rehearing en banc. rehearing Our denial of a instances, banc, in this as in all other ap- necessarily taken as to be proving panel the action of a or a sought Each in matter to be reheard. in vot- his own discretion exercises had, should be whether presented. He under the circumstances agree may may the action judge. panel He or a not be merits should think reached, variety reasons. for a full tíim before is whether of the factors act.1 Some should by the late listed considered were “rigorously Supreme tiorari, Court, insisted that which exercises implication authority discretionary with it no a denial carries somewhat similar regarding deciding grant deny views on Court’s whether to eer- whatever *2 1011 Georgetown presently patient Judge Stephens pub- article a in an at Chief pointing University Hospital years ago, out and that she lished several hearings by being grant in the extremis further it that the exercised,” represented “sparingly physician that the in at- has been full court tendance, “constitut- treated as the resident at has not been chief Georgetown general Hospital, ing court of Edwin Wes- in banc a the court panel. tura, opinion that appeals” decision is of the blood from a Concerning necessary Shop Stephens, Talk transfusions are immedi- Court, ately OF 20 order to her life and it JOURNAL save Business of ASSOCIATION, being represented by ap- at 103 BAR further THE D. C. plicant (1953). true actions same is that consent to the adminis- 109 judge. My own reason tration thereof can be obtained nei- voting here patient her for denial ther nor hus- for para- preceding band; in the been stated therefore graph. applicant “Ordered act- ing through duly its accredited Judge, DANAHER, would dis- Circuit physicians licensed attendance controversy. of a case lack miss for may administer such transfusions as physicians are in the Judge MILLER, K. WILBUR necessary in attendance to save her (dissenting): life,” my unwill- giving reasons In Although proposed order was order, foregoing agree ingness to the styled “Application The President and begin expedient at the be- I think it Georgetown College, Inc., a Directors of story sketching ginning by Body Corporate,” pro- was no there entry; to its which led circumstances Court; ceeding pending in the District alone, appearance standing for, it has the complaint, petition or there no had been order. an innocuous routine application formal written filed. attorneys 17, 1963, September two On “application” request the oral appeared chambers of District attorneys that the tendered Judge tendered A. Tamm and day, Edward signed To and entered. they request- following order, which nothing there is on file the District sign: him to ed Court office Clerk’s with reference Judge “application.” on Tamm endorsed “Order “Denied,” paper the word which of Court District United States denying meant that course he for the District of Colum- application oral the order. Civil bia Division plain, think, very that at least Application Presi- “In re: Judge Tamm’s was based denial Directors dent nothing fact him there was before Georgetown College, Inc., a juris- upon act, that which he could Body Corporate had not diction of the District been Court having invoked, on to be come and that “This cause controversy. pending upon application The Presi- case or heard Georgetown dent Directors of p. 17 the 4:00 m. on About body unannounced, corporate, College, Inc., attorneys appeared, own- same Georgetown operating Uni- at the chambers of of this court being repre- versity Hospital, requested and it an immediate review applicant Judge denying ap- sented counsel Tamm’s action plication authority Jesse E. Jones is Mrs. administer [sic] 252, 255, (Opinion 94 L.Ed. of Frank- the merits of a case which it has declined 562 , Maryland J.). furter, Baltimore review.” Show, Radio U.S. 70 S.Ct. hospital, at the memorandum order and attach- transfusion danger of death ment.” in imminent said They did not file from loss of blood. accomplished The blood transfusion was Judge petition for review of written immediately signed. after the order was *3 sign the order but Tamm’s refusal judge appellate September 19 the On single judge merely orally requested concerning his memorandum ac- filed a Judge had action Tamm take the just which tion, he said inter alia: in which judge appellate to take. The refused “ * * * obvious that by telephone hospital’s spoke the not in mental con- woman was the physician who confirmed chief resident re- dition to make a decision. I was by representations made counsel and the press the her because luctant judge thereupon proceeded the to the and be- of her condition seriousness spoke hospital. husband There he to the suggest repeated- I that to cause felt that, on of the ligious who re- advised ly the imminence of death without approve grounds, would not he might place strain on her re- blood blood transfusion his wife. The ligious her convictions. I asked judge advised the husband obtain oppose whether she would the blood immediately but, counsel con- after brief it. transfusion if the allowed court sideration, do the husband declined to indicated, make She as best I could patient’s so. The then at called the out, her that it then would not be repeated room and her the doc- what added.) responsibility.” (Emphasis only reply tors had said. Her audible days after September 20—three “Against was, my on And him will.” accomplished— had been the transfusion Then, 17, p. at 5:20 onm. by phy- hospital four affidavits filed the Georgetown Hospital, appellate the the transfusion to the effect sicians judge signed Judge the order which necessary. had been sign Tamm had declined to and then Jones, 1963, E. Jessie October On signed following order, additional petition for rehear- patient, filed by which was filed our Clerk the same vacating banc for an and day: September 17 quashing order of and applicant having appeared “The The transfusion. authorized the which petition me before for the presented issuance of a writ states permitting applicant to admin- follows: ister such transfusions as are question is whether a free “The physicians of the in attend- the United States citizen adult necessary ance to save the life against to ac- her will can forced ap- Mrs. Jesse E. [sic] Jones and it cept to which she treatment medical pearing September 17, 1963, that on religious objects on both appli- District Court denied such grounds. cation; hearing having and a been importance “This case vital is of conducted before me at all which granted due should be parties present interested upon implications of the to the broad thereon, due consideration had right question presented. signed, pursuant provisions to the religion free exercise of Section Title right of citizen to have his a free Code, States the attached order body part are all a inviolate granting such relief which counsel rights guaranteed by the Constitu- presented had to the District Court problem tion. The tionally raised here addi- Judge and which had been denied doctor-patient- affects all him, it is therefore throughout relationships country. Thus, that the Clerk entire while the “Ordered hereby unusual, court prin- fact directed file issue n ciple broad description na- In situation. these vital proceedings ture rehearing says: case this a qualities make important recon- peculiarly calls en banc Court full procedure sideration mat- which the “The rehearing.” aof ter before this Court came argu- extensive petition contains counsel, no issue but clear following support of ments point on at this time.” raised propositions: however, me, seems clear to “Respondent a constitu- before this come matter did guaranteed tionally to the free duly presented that, court and it been had n exercise n eludes religion, of her appeal, of this *4 ‘abstain from summary the not dis a authorized make merits, and the Court of order The position blood.’ the of matter on the applicant fore- in therefore, the action of procedural are, the These defects upon of a violation her is blood validity purported fatal of or to the the liberty the and of single her conscience September by ders entered 17 a by guaranteed First Amend- the judge appeal actually when no had been the of Constitution Argument to the justified, ment filed. is court States.” physical United in present here, such were circumstances as ordering blood transfu “Respondent a citizen free 2. against patient sions the will of an adult de- has been the United States necessarily presupposes properly con a liberty by inva- prived of the her actually court stituted an filed and action proc- person without due sion of her pending argument, and before it. Such contrary Fifth to the of law ess persuasive, no matter how extensive and to the Constitution Amendment cannot validate the action which tak the United States.” destroy en because it cannot ,here precedent is created here 3. “The purported basic facts which make the or- persons many other so a threat mere nullities: that no action was judicial substitution of that ap District Court and that discretion for individual discretion court; that, had Pea principle to should be examined ap an there been actual a sin^le aPPeal> leading.” is where it see pellate judge not to act. authorized , , , subject “Respondent still ... is„ ,. , merely object de- I to the order which ... Septem- . . dated .... . ... the order the Court . rehearing, without for meS the Petltl0n liberty Her her 17 1 I i 1963 continues , „ , », /y» j , ., more, two l»j J. (cid:127) lid ulllUCO i . m effect the llUCl vdi . . ... it leaves UtiX . because i i , infringed . ... the order until , , , , ,, ., September this 17 orders of ... « orders of , , , be quashed, the Court there- . . should ,, , , may . cited hereafter court which precedents, , , grant rehearing. . fore summary only ad not rehearing petition Such transfusions ministration against of blood being banc com- which is denied without patient, also the will of the but by foregoing presume ment I order. judge proposition .for that one majority the reason summoning which actuates the court, without two theory September colleagues that him and with his to act with 17 may is now moot in that the transfusion him, out take record before has been unprecedented administered action which drastic and hospital. petition has left the was taken this matter. strong argument presents a gection nI) Under Article 2> contrary which merits consideration. States, the Constitution of the judicial power concerned, however, cases extends I am not now Although by de- questions presented this Section controversies. the substantive judicial power, rehearing; it does fines and limits am dis- I by particular by procedural aspects prescribe method turbed
1014 judge appellate as that which was-- may power invoked. suggested, provided taken here. ever, It has been how- invoking Rule it is method Procedure, provision that the which au- Code of Civil Rules Federal appellate judge thorizes one an enter is com- civil action reads: “A preserve quo pending filing complaint order to the status with the menced appeal justifies employed procedure shown, nowas court.” has been As suggestion think, is, here. The I without here, complaint action was so civil filed appeal prop- foundation. Even if an had of the Dis- commenced erly Judge- been in this invoked. trict Court was not proffered Tamm’s der, may refusal to enter the or- do one institute not understand that by entering the orders entered on merely civil action judge asking pre- court did not chambers district quo; contrary, serve the sign order; status proffered the- him to nor changed completely quo orders appeal the status refusal from his by granting fully finally ante by orally requesting all of circuit sought, disposing the relief thus of the- to review it. matter its merits. This fact is con- controversy Even when a case firmed, perhaps unwittingly, by ma- properly presented Appeals, to a Court of *5 jority’s denying petition for re- judge empowered thereof is not to hearing banc, implicitly relies take the action decisive which was on mootness. here. The determination such matters
is committed a to division of three that, I think merely denying instead of judges, quor- of which two constitute a petition rehearing, we should' um, pro- or to the court en banc. This is ground dismiss it that there was by 46(b), 46(c) vided subsections and 46 no controversy presented case or or de- (d) of Title 28 U.S.Code: consequently termined and that there is nothing “(b) But, to pe- rehear. In each circuit whether the court may rehearing tition for hearing authorize be denied or de- dis- missed, purported Septem- termination of cases orders and contro- ber expunged by should separate versies consisting be so divisions, there would each nothing judges. our records of three which could be- Such precedent cited as a divisions shall sit at future similar times and ac- by single tion places appellate a judge. and hear the cases and contro- We- have assigned inherent versies to as take the court di- that action sponte. sua rects. “(c) impugn Cases and I do to not mean controversies shall the motives colleague signed by heard and of our determined a who court these orders. or by division impelled, sure, of not more He was I am than humani- three judges, hearing impulses unless tarian a or and doubtless was him- rehear- ing before the self under court in considerable strain bane because of is or- by majority dered a the critical situation of the which he had be- circuit judges of the circuit come involved. In who the interval are in about ac- twenty tive an appearance service. A court in hour and minutes between the- banc shall attorneys consist judges of all active circuit at his cham- signing circuit. bers and the of the order at the hospital, opportunity had “(d) majority A of the number of legal' for research judges as to substantive authorized to constitute a problems procedural questions court thereof, or division provid- volved. He should not have been asked in paragraph ed (e), shall constitute act in these circumstances. quorum. a June c. Stat. 871.” suppose- suggest is not correct I it emergency that, a me, serious sections, where there seems to do not These it life, district or a circuit provide by permit or action
1Q15
right
regardless
hospital
it
it,
of whether the
had a
meet
act
require
the court to en-
so. was entitled to
empowered
to do
law
he is
whether
always easy
separate
force.
It is not
truth of
shows
This situation
concepts
standing
party
of a
adage
bad law.
make
hard cases
issue;
justiciability of an
two tend
say that BASTIAN
am authorized
I
merge
blend and
times. But
Judges,
join
BURGER,
beyond challenge
would seem
dissent.
party seeking
has the
relief
burden
showing affirmatively
legally protected
Judge.
BURGER, Circuit
right which is
or is about to be
invaded
should dismiss
believe we
opposing party.
invaded
an
jus-
of a
en banc for want
What, then,
legally
enforceable
controversy,
Judge Danaher
ticiable
“right”
of the
in this context ?
merely deny
does,
than
it.
rather
hospital,
assume first
canWe
presents
episode
hand
on the one
This
responsibilities
doctor, has certain
like a
grave
example
dilemma which
.an
who,
person
and duties toward
engage
those
in the heal
(cid:127)confronts
who
emergency,
its
comes under
or
choice
very
the other
some
arts and on
hand
of the
No affirmative act
care.
na
“basic and fundamental
on the
issues
threatening
invading
suggested
r.1
scope
judicial powe
We
ture
hospital.
must
any
So we
n can
sympathize
with the
can
one but we
legal
“invasion” of
an
decide whether
safely
appropriately temporize
relationship
spelled
out of
can be
obligation
other;
with the
we have
accept a
patient’s
refusal
between
n dealwith
basic
whether
thought nec
medical treatment
standard
.judicially cognizable
presented
issue
*6
possible
essary
preserve
to
life and the
refuses,
legally competent
when a
adult
relying
if,
hospital
consequences to the
n grounds
conscience,
to
to a
of
consent
give
consent, it fails to
on her refusal of
preserve
treatment essential
injury
or
fol
a transfusion and death
life. At the outset I would assume that
impact,
possible
economic
lows.
judicial appraisal
we cannot make a
of
apart
implications inher
the moral
justiciability
any
on the basis
con
of
pre
responsibilities, perhaps
ent in its
sequences attributable to the
issued
arguable
hos
sented an
basis
end,
in the name of this court. The
de
right.
pital’s
protected
claim
economic
of
obviously developed,
.sirable
it
can
in an unenviable
Samari
stood
“Good
not establish the existence of a
or
case
n controversy
categori
posture
patient
tan”
when the
such did
if
not exist
inde
eally
a blood trans
refused
consent to
pendent,
sequel
of the
to the enforced
emerg
fusion
a medical
called for
medical treatment.
ency.2
violating
between
The choice
justiciability
“The touchstone
in
is
patient’s
convictions of conscience
*
jury
legally protected right
to a
accepting
hardly an
her decision was
n JointAnti-Fascist
Refugee
v.
Committee
easy one.
McGrath,
140,
624,
341 U.S.
71 S.Ct.
disputed
However,
(1950)
it is not
(principal
since
opin
L.Ed. 817
ion).
patient
issue,
and her husband volunteered
therefore,
The threshold
vitality
tinuing
Judge
underscore
serves
with
Miller’s
lias dealt
majority
problem,
e.,
the failure of a
of this court
phase of
i.
whether
one
assuming arguendo
definitively upon
presented
pass
the issues
jus-
of a
existence
controversy,
hospital
to us.
took the
ticiable
juris-
necessary
steps
to invoke the court’s
emergency
jurisdiction
assuming
as-
whether,
2. The existence of an
diction
although
Court,
jurisdiction
is no record to show
sumed
in
was
the District
hospital
patient
agree
or
when the
reached
his
executed here.
emergency
thought
.analysis.
to arise.
when an
Judge Washington’s
or-
view that
17, 19C3,
con-
of
der
sign
hospital
rigidly
to relieve the
a waiver
would forever
embalm all reme-
liability
consequences
any
of
of
dies and all
actions
the mold
18th
transfusion,
century
Legal
concerning
to effect the
failure
courts.
claims
right
protected
energy
age
economic
space
claim to a
atomic
may
and the
well
damage sphere
appear unsupport-
suggested
would
arise and the standard
Jus-
sufficiently
ed.
tice Frankfurter
malleable
encompass
claims and remedies not
legally
out
protected
arise
Can a
ago
years
gen-
dreamed of 200
even
hospital
duty-right
other
of some
ago, provided always they
eration
are
obliga-
moral
patient,
as a
toward
general competence
within the
preserve
costs ?
life at all
tion to
pointing
courts. What he
to was
to construct
is difficult
me
For
appropriateness
treatment,
judicial
protected
legally
out
actionable
adjudication,
fitness relationship.
en-
affirmative
depend upon showing
turn
of invasion
right growing
out of
aof
forcement
possible
legally
right.
protected
duty
moral
Frankfurter defi-
The breadth of
to meet
not seem
does
toward
manifest that he
nition also makes
especially
justiciability
the standards of
narrowly
addressing
himself
judicial compul-
only remedy is
when the
judicial
limited nature
federal
touching
con-
area of
the sensitive
sion
distinguished
state
from that of
religious belief.3
science and
general jurisdiction, for the
courts of
judicial
of Westmin-
courts
those
on ‘the
Power
Colonial
“Limitation
general
expressed
the 1780’s
courts
ster of
States’
attempting
litigant
jurisdiction.
requirement
must
Rather he was
judicial
proper scope
‘standing
or,
com-
more
to contrast
to sue’
have
legisla-
prehensively,
business with
business
a federal
sovereigns,
controversy only
tures,
see
if
executives
entertain a
Pauling McNamara,
D.C.
No.
‘justiciable.’ Both character-
it is
inference,
and, by
23, 1963,
Cir.,
Dec.
that a court
izations mean
will
strictly private
which are
those matters
the nature
decide a
unless
gov-
beyond
all
reach of
challenged,
and thus
concern
the kind
of the action
injury
neatly di-
power.
relationship
*7
cannot
We
inflicted,
ernmental
and the
problems and decisions
of life’s
parties
all
are such that
vide
between the
assign one
compartments and
judicial
into
determination is consonant
three
great
of
Branches
generally speaking,
three
was,
to each
with what
courts
Government.4
of the Colonial
the business
when
and the courts Westminster
Brandéis,
views
whose
Justice
Mr.
was
Joint
the Constitution
framed.”
“right to be let
inspired
much
have
Refugee
v.
Anti-Fascist
Committee
philosophy,
in Olmstead
said
alone”
McGrath,
150,
supra,
71
as it should be. matters essen- Some tially private concern and others of enor- beyond public concern, mous are judges. Pauling reach Cf. v. McNa-
mara, supra.
I am authorized to state WILBUR BASTIAN,
K. MILLER and join Judges, in the views. above SCHOLL, Preissler,
Bettie M. Detlev Au drey Preissler and Jean F. J. Per gola, Appellants, COLUMBIA,
DISTRICT OF Appellee.
No. 18023. Appeals
United States Court of District of Columbia Circuit.
Argued Jan. 1964.
Decided Feb. *9 Washington, Friedlander,
Mr. Mark P. C.,D. P. Fried Messrs. Mark whom lander, Jr., Blaine P. Friedlander Harry C., Washington, Friedlander, D. P. brief, appellants.