Appealed from: United States Court of Appeals, Seventh Circuit
Oral argument: Nov. 30, 2005
ABORTION, PROTESTING, CERTIORARI, REMAND, EXTORTION, INJUNCTION, RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT (RICO), HOBBS ACT
The National Organization of Women (“NOW”) sued Scheidler and other anti-abortion protestors, arguing that the protestors’ conduct was in violation of federal and state extortion laws, with liability created by the Racketeer Influenced and Corrupt Organizations Act (“RICO”). The protestors were found guilty of 117 extortion-based acts and four “acts or threats of physical violence.” Accordingly, the district court granted a permanent injunction against the protestors under RICO. The case went to the Supreme Court, which held that the protestors’ actions did not constitute extortion and ordered the Seventh Circuit to reverse “all of the predicate acts supporting the jury’s finding of a RICO violation,” and to vacate the injunction. However, the Seventh Circuit interpreted “all of the predicate acts” to refer to only the 117 extortion-based acts, and not the four acts of physical violence, because the Supreme Court never specifically reviewed the legality of the four acts. Now, the Supreme Court has granted certiorari to determine, among other questions, whether the Seventh Circuit ignored its order to dismiss “all of the predicate acts” by preserving the four acts of violence. The protestors argue that the Seventh Circuit’s failure to dismiss “all of the predicate acts” improperly ignores the Supreme Court's order and that the federal law in question, the Hobbs Act, can only be violated by acts of extortion, not mere acts of violence. NOW argues that an “act or threat of physical violence” may be a violation of the Hobbs Act, and that the Seventh Circuit properly confined the Supreme Court’s order to dismissing only the 117 extortion-based acts. This case is especially interesting from a procedural standpoint, as it will address how an appellate court should interpret an order of the Supreme Court where that order may be broader than the Court’s original scope of certiorari. For the average person, however, the Court's interpretation of the Hobbs Act will affect the extent to which organizations may protest without violating federal laws, as well as potentially expand the Federal Government's police power.
Scheidler v. National Organization for Women
1. Whether the Seventh Circuit Court of Appeals (the “Seventh Circuit”), on remand, disregarded this Court’s mandate by holding that “all” of the predicate acts supporting the jury’s finding of a RICO violation were not reversed, that the “judgment that petitioners violated RICO” was not necessarily reversed, and that the “injunction issued by the District Court” might not need to be vacated.
2. Whether the Seventh Circuit correctly held, in conflict with decisions of the Sixth and Ninth Circuits, that the Hobbs Act, 18 U.S.C. § 1951(a), can be read to punish acts or threats of physical violence against “any person or property” in a manner that “in any way or degree * * * affects commerce,” even if such acts or threats of violence are wholly unconnected to either extortion or robbery.
3. Whether this Court should again grant certiorari to resolve the deep and important intercircuit conflict over whether injunctive relief is available in a private civil action for treble damages brought under RICO, 18 U.S.C. § 1964(c).
Operation Rescue v. National Organization for Women
1. Does the Seventh Circuit’s defiance of this Court’s mandate merit summary reversal?
2. Did the Seventh Circuit err by ruling, in conflict with the Ninth Circuit, and in conflict with the official position of the Department of Justice, that private civil litigants may obtain injunctive relief under the federal Racketeer Influenced and Corrupt Organizations (RICO) statute?
3. Did the Seventh Circuit err by ruling, in conflict with the Sixth and Ninth Circuits, and in conflict with the official position of the Department of Justice, that the federal Hobbs Act, 18 U.S.C. § 1951, may plausibly be construed to prohibit, without any connection to robbery or extortion, any act or threat of “physical violence to any person or property” that “in any way or degree . . . affects commerce”?
Whether the Hobbs Act proscribes acts of physical violence that are unconnected to robbery or extortion, and if so, whether such acts can support an injunction for a private party under RICO?
In 1986 the National Organization for Women and two health care clinics that perform abortions (“the Pro-Choice Plaintiffs”) sued Joseph Scheidler, a coalition of anti-abortion groups called the Pro-Life Action Network, and other entities that oppose abortion (“the Pro-Life Defendants”), under the Racketeer Influenced and Corrupt Organizations Act (“RICO”). See Nat’l Org. for Women, Inc. v. Scheidler, 267 F.3d 687, 693 (7th Cir. 2001). The Pro-Life Defendants engaged in legal activities, including attempting to discourage clinic patients from undergoing abortions and clinic doctors from performing them. Id. However, they also performed illegal acts such as sitting or lying in clinic doorways, destroying medical equipment in clinics, chaining their bodies to operating tables, assaulting clinic staff and patients, and threatening further protests at the clinics unless the clinics shut down. Id. The Pro-Choice Plaintiffs claimed that these actions constituted extortion under RICO. See Id. at 694.
The district court dismissed the RICO claim, but the Supreme Court reversed the decision and remanded the case for trial. See Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249 (1994). At trial, a six-person jury found the Pro-Life Defendants liable for 117 extortion-based acts, including violations of RICO, the Hobbs Act, and the federal Travel Act. See Nat’l Org. for Women, Inc. v. Scheidler, 267 F.3d 687, 695 (7th Cir. 2001). In addition, the jury found Defendants liable for four acts that violated a provision of the Hobbs Act proscribing “acts or threats of physical violence to any person or property.” Id. at 695. The jury awarded monetary damages, and the district court issued a permanent nationwide injunction prohibiting the Pro-Life Defendants from conducting blockades, trespassing, damaging property, or committing acts of violence at the clinics. See Id. Defendants appealed to the Supreme Court.
In 2003, the Supreme Court heard two issues in the case: (1) whether the Pro-Life Defendants committed extortion within the meaning of the Hobbs Act, and (2) whether the Pro-Choice Plaintiffs, as private litigants, may obtain an injunction in a civil action under RICO. See Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 397 (2003) (hereinafter “Scheidler II”). On the first issue, the Court held that although Defendants deprived the clinics of a property right—exclusive control over their business assets—they did not “obtain” any such property and therefore did not commit extortion under the Hobbs Act. See Id. at 410. Absent an act of extortion to support the jury’s findings, the Court reversed the judgment that the Pro-Life Defendants violated RICO. See Id. Because they found no underlying RICO violation, the Court vacated the injunction. See Id. Accordingly, the Court found it unnecessary to decide the second issue regarding the availability of an injunction. See Id.
The case was remanded to the Seventh Circuit, where the Pro-Choice Plaintiffs argued that although the Supreme Court dismissed the extortion-based claims, the Supreme Court did not decide whether the four “acts or threats of physical violence” alone could support the district court’s injunction. See Nat’l Org. for Women, Inc., v. Scheidler, 91 Fed. Appx. 510 (7th Cir. 2004). The Pro-Life Defendants, however, contended that the Supreme Court’s holding that they did not commit extortion precluded a finding that the four acts or threats of violence might independently support the injunction, because the Hobbs Act does not outlaw “physical violence” apart from extortion or robbery. See id. The Seventh Circuit sided with the Pro-Choice Plaintiffs, holding that the Supreme Court’s opinion did not cover these four acts, even though the opinion stated that “all of the predicate acts supporting the jury’s finding of a RICO violation must be reversed.” See id. at 411. The Seventh Circuit then remanded the case to the district court to determine whether the four acts were sufficient to support the nationwide injunction on their own. See id. In 2005, the Seventh Circuit denied Defendants’ request to have the case reheard, and Defendants petitioned for review to the Supreme Court. See Nat’l Org. for Women, Inc. v. Scheidler, 396 F.3d 807, 818 (7th Cir. 2005).
The Supreme Court’s decision on whether the Seventh Circuit disobeyed its mandate will have a great impact on the area of civil procedure. The Court’s opinion will hopefully give guidance as to how lower courts must interpret its orders when the order seems inconsistent with the scope of certiorari.
The Court’s decision regarding whether the Hobbs Act prohibits can be read to punish acts or threats of physical violence will have a significant effect on issues of federalism. Specifically, it will help to determine how far Congress can go in legislating in areas traditionally reserved to the states. Acts and threats of physical violence are already illegal in all states. An expansive interpretation of the Hobbs Act would give the federal government greater police power. However, it is questionable whether an expansive interpretation is allowed by the rule of lenity, which requires that criminal statutes always be construed narrowly.
An interpretation of the Hobbs Act that punishes “acts or threats of physical violence against any person or property in a manner that in any way or degree affects commerce,” might also severely dampen the activities of labor unions and other groups that actively protest. For instance, if any act or threat of violence perpetrated by two or more members of an organization makes that organization liable under racketeering laws, then any organization that has unruly members purporting to act on its behalf may face debilitating legal repercussions.
A ruling in favor of the Pro-Life Defendants would make it more difficult for federal authorities to prosecute national organizations that encourage violence for political and not monetary ends. This interpretation would mean that, under the Hobbs Act, groups may intentionally, systematically, and concertedly interrupt processes with which they disagree, or systematically harass specific segments of the population. However, such an interpretation may be the one that is most true to the purpose of the statute. If so, it would be up to Congress to pass additional legislation if it is persuaded by those concerns. Or, perhaps the court should interpret the Hobbs Act expansively in order to give the federal government power where that power is desirable.
The Seventh Circuit’s Order on Remand
The last time this case was before the Supreme Court in 2003, the Court held that “all of the predicate acts supporting . . . a RICO violation must be reversed.” See Scheidler v. Nat’l Org. for Women, Inc., 537 U.S. 393, 411 (2003). Whether “all of the predicate acts” refers to all 121 predicate acts, or, as the Seventh Circuit held, only the 117 extortion-based acts and not the four acts of violence, is one of the questions currently before the Court. The Seventh Circuit reasoned that when the Pro-Life Defendants originally petitioned the Supreme Court, they only asked them to review the issue of “whether petitioners committed extortion within the meaning of the Hobbs Act,” but not whether the four acts of violence could support the nationwide injunction. See Nat’l Org. for Women, Inc., v. Scheidler, 91 Fed. Appx. 510, 510 (7th Cir. 2004) (emphasis added). Thus, applying the Supreme Court’s consistently held rule that “[o]nly the questions set out in the petition, or fairly included therein, will be considered by the Court,” the Seventh Circuit refused to hold that the Supreme Court found these four acts insufficient to support the injunction. See id. (citing Toyota Motor Mfg., Ky., Inc v. Williams, 534 U.S. 184, 202 (2002)). The Seventh Circuit noted that the Supreme Court’s opinion failed to mention the four non-extortion predicate acts, and the parties’ briefs before the Court mentioned theses acts only in a footnote. See id.
The Pro-Life Defendants contend that the Supreme Court reversed all 121 predicate acts—“not ‘some,’ not ‘all of the ones we have discussed,’ and certainly not ‘all but four.’” See Scheidler’s Brief at 14. Defendants further argue that the Supreme Court saw no need to expressly rule on the four acts of violence because the Court properly assumed that the Pro-Choice Plaintiffs no longer disputed the issue. See id. at 16. Moreover, Defendants contend that the Supreme Court meant precisely what it stated when it ordered that the “the judgment that petitioners violated RICO must also be reversed” and that “the injunction issued by the District Court must necessarily be vacated.” Id. at 17–18. Thus, Defendants argue, the Seventh Circuit’s decision plainly contradicts the Supreme Court’s mandate. Id.
This view was adopted by Judge Manion, who, in dissenting from the Seventh Circuit’s denial of the Pro-Life Defendants’ motion for a rehearing, noted that although the Supreme Court granted certiorari on the issue of whether a private litigant in a civil RICO action is entitled to an injunction, this issue became moot after the Court dismissed all predicate acts. See Nat’l Org. for Women, Inc. v. Scheidler, 396 F.3d 807, 818 (7th Cir. 2005).
The Pro-Choice Plaintiffs, on the other hand, argue that the Seventh Circuit understandably concluded that the Supreme Court failed to resolve the status of the four predicate acts because it considers only “questions set out in the petition, or fairly included therein.” See Sup. Ct. R. 14.1(a). Further, “any issues outside the grant of certiorari are typically left to the lower courts on remand.” Plaintiffs’ Motion in Opposition to Certiorari at 9 (citing Glover v. United States, 531 U.S. 198, 205 (2001)). Thus, a resolution to this first dispute will in part depend on whether the Supreme Court holds that, given the nature of how the four predicate acts were presented to the Court, it disposed of them along with the 117 other acts.
Physical Violence under the Hobbs Act
The Hobbs Act threatens to fine or imprison whoever “obstructs, delays, or affects commerce . . . by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section . . . .” 18 U.S.C. § 1951(a) (emphasis added). Whether “this section” refers only to “robbery or extortion,” or also to “physical violence,” is the second question before the Supreme Court.
The Seventh Circuit, on remand, saw two possible interpretations of § 1951(a). “First it may simply forbid committing or threatening violence in furtherance of a plan to obstruct commerce or robbery.” Nat’l Org. for Women, Inc. v. Scheidler, 396 F.3d 807, 812 (7th Cir. 2005) (citing Craig M. Bradley, NOW v. Scheidler: RICO meets the First Amendment, 1994 Sup. Ct. Rev. 129, 142–43 (1994)) (quotations omitted). The Seventh Circuit referred to this as the “two-way” interpretation, because the two proscribed acts are robbery and extortion. See Id. at 812. “The other possible reading . . . forbids threatening or committing physical violence in furtherance of a plan to ‘obstruct, delay, or affect commerce’ (other than through robbery or extortion).” Id. (quotations omitted). This is referred to as the “three-way” interpretation, because illegal interference may occur in three different ways: (1) by robbery, (2) by extortion, or (3) by physical violence. See Id. The Seventh Circuit concluded that grammatically “the text can be read either way without undue strain.” Id.
The Pro-Choice Plaintiffs favor the three-way interpretation because it allows for acts of physical violence, unconnected to robbery or extortion, to independently support a Hobbs Act violation and, therefore, provide a remedy under RICO. Indeed, after the Supreme Court dismissed all 117 acts of robbery and extortion in 2003, the two-way interpretation became fatal to Plaintiffs’ argument. Professor Bradley summed up the argument for the three-way interpretation when he stated that the two-way interpretation simply “makes no sense!” See Craig M. Bradley, NOW v. Scheidler: RICO meets the First Amendment, 1994 Sup. Ct. Rev. 129, 142–43 (1994). He argues that “[r]obbery and extortion frequently involve the commission (robbery) or threat (extortion) of violence . . . . Thus, under [the two-way] reading, the ‘physical violence’ clause would be less inclusive, and hence would add nothing, to the preceding ‘robbery’ and ‘extortion’ clauses.” Id. This is an important point, becase because a well-worn canon of statutory interpretation cautions courts against interpreting a statute in a manner that renders one part of it meaningless. See Nat’l Org. for Women, Inc. v. Scheidler, 396 F.3d 807, 816 (7th Cir. 2005). Furthermore, the two-way reading renders portions of the Hobbs Act meaningless in another manner as well. In § 1951(b), the subsection of the Hobbs Act following § 1951(a), “robbery” and “extortion” are defined to cover the use of “violence” in furtherance of the offense of robbery or extortion. See Id. Thus, the two-way reading is problematic because it means that § 1951(a) would forbid violence in furtherance of a plan to obstruct commerce by robbery or extortion, while § 1951(b) also would forbid the same—for a second time. See Id.
The Pro-Life Defendants believe that the Seventh Circuit’s reading is erroneous for multiple reasons. First, they argue that the direct predecessor of the Hobbs Act, the Federal Anti-Racketeering Act of 1934, explicitly links the acts of physical violence to the prohibition on “robbery or extortion.” See Scheidler’s Brief at 19. The two acts read: “Whoever commits or threatens physical violence . . . in violation of section 2 . . .,” where section 2 refers only to obstructing, delaying, or affecting commerce “by robbery or extortion,” and not to physical violence. Pub. L. No. 486, 60 Stat. 420 (1946). The limited scope of section 2, Defendants argue, was preserved in the 1948 amendments to the Hobbs Act, even though the amendments removed the explicit reference to “robbery or extortion” and grammatically reassembled the present day version of the Hobbs Act. See Scheidler’s Brief at 20.
The Pro-Life Defendants further argue that the 1948 amendments to the Hobbs Act did not expand the substantive scope of the Hobbs Act of 1946 to include physical violence because it cannot be “inferred that the legislature, in revising and consolidating the laws, intended to change their policy, unless such intention be clearly expressed.” See Scheidler’s Brief at 20 (citing United States v. Ryder, 110 U.S. 729, 740 (1884)). The Reviser’s Notes to the Hobbs Act does not indicate any intent to expand the substantive scope of the reference to “this section.” See id.
The Pro-Life Defendants, in perusing the legislative history of the Hobbs Act, garner additional support for the two-way interpretation. The Hobbs Act was modeled in part after the Penal Code of New York, which defined coercion to include certain acts or threats of violence unconnected to robbery or extortion. See Scheidler’s Brief at 21; Nat’l Org. for Women, Inc. v. Scheidler, 396 F.3d 807, 814 (7th Cir. 2005). Congress, however, in adopting the Penal Code decided to omit coercion as a separate ground for liability under the Hobbs Act. See Id. In omitting “coercion,” Defendants argue, Congress also omitted its reference to violence unconnected to robbery or extortion. See Scheidler’s Brief at 21, n.10. This is evinced by the fact that Congress was “aware that the statute would reach violence only if it was committed in furtherance of robbery or extortion.” Id. Accordingly, Defendants urge that the Seventh Circuit erred in holding that, despite the foregoing facts, excluding “violence” from the Hobbs Act was an analytically distinct issue from that of affirmatively excluding “coercion” as a separate ground for Hobbs Act liability. See Scheidler’s Brief at 22, 24; Scheidler, 396 F.3d at 814.
Defendants and amicus further note additional problems with the three-way interpretation. For instance, it is inconsistent with United States v. Enmons, 410 U.S. 396 (1973), a Supreme Court case holding that the Hobbs Act does not proscribe acts of violence and destruction of property by labor union officials and members. See Scheidler’s Brief at 24. Further, its broad coverage of all acts of violence would essentially federalize all violent crime, thereby implicating federalism concerns. See id.
Injunctive Relief for Private Plaintiffs under RICO
Section 1964(c) of RICO provides civil remedies to “any person injured . . . in his business or property,” allowing him to sue and “recover threefold the damages he sustains and the costs of the suit.” 18 U.S.C. § 1964(c). Although this section makes no reference to private injunctive relief, § 1962(a) gives courts “jurisdiction to prevent and restrain violations of section 1962 by issuing appropriate orders, including, but not limited to . . . imposing reasonable restrictions on the future activities or investments of any person . . . .” 18 U.S.C. § 1964(a).
The Pro-Life Defendants note that the Seventh Circuit based its decision to allow a private plaintiff to obtain an injunction on, among others, the language in § 1964(a), Scheidler’s Brief at 31. They also note that the Seventh Circuit stands alone among the federal appellate courts in permitting private injunctive relief under RICO. Scheidler’s Brief at 29. More importantly, the Pro-Life Defendants argue that § 1964(c) was modeled after Section 4 of the Clayton Act which does not expressly authorize private injunctive relief. Scheidler's Brief at 29–30 (citing Agency Holding Corp. v. Malley-Duff & Assocs., 483 U.S. 143, 150–51 (1987). Indeed, they urge that if Congress intended to provide injunctive relief to private parties under RICO, Congress would have expressly stated so in the text of the statute, as it did with Section 16 of the Clayton Act. See id.
Further evidence of the lack of Congressional intent to authorize injunctive relief for private parties appears in RICO’s legislative history, according to the Defendants. See Scheidler’s Brief at 33. They note that the “Senate and House entertained but did not adopt proposals that would have expressly given private parties the right to seek injunctive relief.” Id. at 34. Specifically, a proposed amendment to RICO that would have expressly authorized private injunctive relief was never amended. Id. at 35. “Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.” Id. (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 442–43 (1987)). Thus, legislative history, Defendants argue, should compel the Supreme Court to hold that the Seventh Circuit erred when it remanded and left open the possibility that the district court could grant an injunction to a private party based on the four acts of violence.
The Supreme Court in this case will have to decide three very different issues: whether the Appeals Court obeyed its mandate, whether actions that are not extortion or robbery can violate the Hobbs Act, and whether RICO allows private plaintiffs to seek injunctions. On the first issue, the court must decide whether its order to vacate the injunction should have led the Appeals Court to vacate the injunction even though some of the acts supporting the injunction were, in the opinion of the Appeals Court, outside the scope of certiorari. On the second issue, the Court will have to decide whether the language of the Hobbs act, which forbids "acts or threats of violence" only means those that are in furtherance of robbery or extortion, or whether it includes those that are not. Finally, the court will decide whether private parties can obtain injunctions under RICO where they cannot under similar statutes, but where the language is unclear and the issue is a new one.
In the humble opinion of at least one of the present authors, the Court will rule in favor or the Petitioner-defendants on all three issues. The first because it seems that any Court order could be construed to assume interpretations of law that were not specifically mentioned in the grant of certiorari. This does not seem to give Appeals Courts free reign to choose when they will obey a Supreme Court mandate and when they will not. On the second issue, the court will probably obey the rule of lenity in construing the Hobbs Act narrowly. Finally, the court will probably reason by analogy to the anti-trust statutes in holding that RICO does not provide for private injunctive relief.
- Pamela A. Maclean, Will the Supreme Court Unleash Civil RICO?, The National Law Journal (Sept. 9, 2005).
- Joanna Grossman, What Might Two Supreme Court Vacancies Mean for Reproductive Rights? (Jul. 12, 2005).
- LII Law about... First Amendment, Personal autonomy