In re the President of Georgetown College, Inc. (331 F.2d 1000, 1964)

J. SKELLY WRIGHT, Circuit Judge.

Attorneys for Georgetown Hospital applied 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. The application recited that “Mrs. Jesse E. Jones is presently a patient at Georgetown University Hospital,” “she is in ex-tremis,” 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 pa^-tient nor her husband.” 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.

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.” 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 judgment 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, 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.

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, 11.6 [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. 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. 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 wás “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 cannot be disputed. 28 U.S.C. § 1651; Rules 6 and 11, General Rules, D.C.Cir.; Rule 62(g), F.R.Civ.P.; Rules 50 and 51, subd. 1, Sup.Ct.Rules. The power of a single circuit judge to grant temporary writs has been exercised in several cases in the recent past. See, e. g., Arrow Transp. Co. v. Southern R. Co., 372 U.S. 658, 662, n. 4, 83 S.Ct. 984, n. 4, 10 L.Ed.2d 52 (1963); Aaron v. Cooper, 8 Cir., 261 F.2d 97, 101 n. 1 (1958); Woods v. Wright, 5 Cir., 8 Race Rel.L.Rep. 445 (May 22, 1963). Judge Tuttle’s action in Woods v. Wright, supra, cites 28 U.S. C. § 1651(b) and Rule 62(g), F.R.Civ.P., in ordering, pending the taking of an appeal, that a group of Negro students be readmitted to the Birmingham public schools. The Eighth Circuit’s discussion of the power in Aaron v. Cooper, supra, shows the familiarity of that Circuit with its exercise. And in Arrow Transp. Co. v. Southern R. Co., supra, the Supreme Court recognized this power as recently as last year, characterizing a temporary restraining order granted by “[o]ne judge of the Court of Appeals” as “the Court of Appeals’ restraining order.” (Emphasis supplied.) This authority of a single circuit judge or Circuit Justice has long been exercised, and was sustained by the Supreme Court as long ago as 1855. State of Pennsylvania v. Wheeling and Belmont Bridge Co., 59 U.S. (18 How.) 421, 15 L.Ed. 435 (1855).

The power recognized by Rule 62(g) and the All Writs Statute, 28 U.S.C. § 1651, inheres in the single Supreme' Coui’t Justice and the single circuit court judge equally, each exercising the same power within the “respective jurisdictions” of his court. 28 U.S.C. § 1651; 6 Moore, Federal Practice If 54.10 [2] at 61, text at n. 6.1. “The extent to which federal statutes empower a Supreme Court justice to act individually is not widely realized. Broadest has been his power to issue injunctions necessary to the exercise of the Court’s jurisdiction, both original and appellate. [Citations omitted.] This power is now apparently embodied in 28 U.S.C. § 1651 (b) (1948) (authorizing issuance of alternative writs).” 62 Harv.L.Rev. 311 (1948) . And Professor Moore has said: “By virtue of this provision [§ 1651(b)] an individual Justice of the Supreme Court can give interim relief pending action by the full Court, as by granting or staying an injunction.” Moore, Judicial Code Commentary f 0.03(53) at 603 (1949) (citations omitted); see also 6 Moore, Federal Practice f 54.10 [3] at 83-84.

Additionally, “if this broadly phrased subsection [(b) of § 1651] is not construed to grant this power [to issue injunctions] to individual Justices, then the power may be found in 28 U.S.C. § 1651(a) which, although it merely confers upon ‘courts’ the power to ‘issue all writs necessary or appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law’, may nevertheless be construed as also conferring upon individual Justices or judges the power to issue such writs where such issuance is customary. Cf. Bennett v. Bennett, 3 Fed.Cas.No. 1318 [power of lower court judge].” Robertson & Kirkham, Jurisdiction of the Su-pi'eme Coui't § 438, at 893 n. 10 (emphasis added). Illustrative examples of the exercise of this power are given in Stern & Gressman, Supreme Court Practice § 15-23, “Application to an individual Justice — practice in chambers.” (3d ed. 1962.)

IY.

Let us now reconstruct the narrative of events through the medium of the contemporaneous Memorandum of Facts filed in this cause, the substance of which is as follows:

Mrs. Jones was brought to the hospital by her husband for emergency care, having lost two thirds of her body’s blood supply from a ruptured ulcer. She had no personal physician, and relied solely on the hospital staff. She was a total hospital responsibility. It appeared that the patient, age 25, mother of a seven-month-old child, and her husband were both Jehovah’s Witnesses, the teachings of which sect, according to their interpretation, prohibited the injection of blood into the body. When death without blood became imminent, the hospital sought the advice of counsel, who applied to the District Court in the name of the hospital for permission to administer blood. Judge Tamm of the District Court denied the application, and counsel immediately applied to me, as a member of the Court of Appeals, for an appropriate writ.

I called the hospital by telephone and spoke with Dr. Westura, Chief Medical Resident, who confirmed the representations made by counsel. I thereupon proceeded with counsel to the hospital, where I spoke to Mr. Jones, the husband of the patient. He advised me that, on religious grounds, he would not approve a blood transfusion for his wife. He said, however, that if the court ordered the transfusion, the responsibility was not his. I advised Mr. Jones to obtain counsel immediately. He thereupon went to the telephone and returned in 10 or 15 minutes to advise that he had taken the matter up with his church and that he had decided that he did not want counsel,

I asked permission of Mr. Jones to see his wife. This he readily granted. Prior to going into the patient’s room, I again conferred with Dr. Westura and several other doctors assigned to the case. All confirmed that the patient would die without blood and that there was a better than 50 per cent chance of saving her life with it. Unanimously they strongly recommended it. I then went inside the patient’s room. Her appearance confirmed the urgency which had been represented to me. I tried to communicate with her, advising her again as to what the doctors had said. The only audible reply I could hear was “Against my will.” It was obvious that J;he woman was not in a mental condition make a decision. I was reluctant to ■^: