The consolidated cases of Scheidler v. National Organization for Women (NOW), No. 04-1244, and Operation Rescue v. NOW, No. 04-1352, will be argued at the Supreme Court tomorrow for the third time. After almost twenty years of litigation, the Court may very well be inclined to agree with petitioner Operation Rescue that “[t]his Court should leave no doubt that this case is over.”

The case, which began with a civil RICO suit filed in 1986, presents three questions:

1) Whether the Seventh Circuit, on remand, disregarded the Supreme 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 the “injunction issued by the District Court” might not need to be vacated.

2) Whether the Hobbs Act 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 injunctive relief is available in a private civil action for treble damages brought under RICO.

Petitioners – defendants below – are Operation Rescue, a pro-life and anti-abortion organization, and its leaders. Respondents – plaintiffs below – are the National Organization for Women (NOW), the Delaware Women’s Health Organization (DWHO), the Summit Women’s Health Organization (Summit), and the classes they were certified to represent, which include all women “whose rights to the services of women’s health centers in the United States at which abortions are performed have been or will be interfered with by [petitioners’] unlawful activities.”

Alan Untereiner will be arguing on behalf of petitioners. Erwin Chemerinksy will argue for respondents. Lisa S. Blatt, Assistant to the Solicitor General, will argue on behalf of the United States as amicus curiae in support of petitioners. The party briefs are available here.
The Solicitor General’s brief is available here.

The case began in 1986, when respondents filed a civil RICO action alleging that petitioners, through their enterprise, the Pro-Life Action Network (PLAN), engaged in a nationwide pattern of crimes that included violent assaults and physical attacks on patients and clinic staff and the destruction of clinic property. In 1998, after years of pretrial proceedings — including a 1994 trip to the Supreme Court in NOW v. Scheidler (Scheidler I) — the case went to trial solely on its federal RICO claim. The jury returned a verdict in NOW’s favor, finding 121 RICO predicate acts: 21 violations of federal extortion law (the Hobbs Act), 25 violations of state extortion law, 25 instances of attempting to conspire to commit either federal or state extortion, 23 violations of the Travel Act, 23 instances of attempting to violate the Travel Act, and four “acts or threats of physical violence to any person or property” in violation of the Hobbs Act. On that basis, the jury awarded damages to the two named clinics, and the district court issued a permanent nationwide injunction prohibiting petitioners from conducting blockades, trespassing, damaging property, or committing acts of violence directed at the clinics. The Seventh Circuit affirmed in all respects.

In 2003, however, the Supreme Court reversed and remanded in Scheidler v. NOW (Scheidler II). It found that there was no Hobbs Act violation because the conduct at issued did not qualify as “extortion,” and that the other RICO predicates were likewise meritless. The Court wrote that “all of the predicate acts supporting the jury’s finding of a RICO violation must be reversed,” that “the judgment that petitioners violated RICO must also be reversed,” and that “[w]ithout an underlying RICO violation, the injunction issued by the district court must necessarily be vacated.”

On remand, the Seventh Circuit found that the Supreme Court had not considered the four counts of the jury’s verdict based on “acts or threats of physical violence to any person or property” in violation of the Hobbs Act. According to the Seventh Circuit, the question remained whether the Hobbs Act outlaws physical violence apart from extortion and robbery. It thus remanded the case to the district court for a determination of whether “the four acts or threats of physical violence found by the jury” might “support the nationwide injunction.”

While denying petitioners’ subsequent requests for rehearing and rehearing en banc, the court did qualify its earlier ruling: if the district court did find the four remaining predicate acts, an injunction narrower than the previous nationwide one would be more appropriate. In addition, the court stated that it was “too late” for NOW to seek any damages, and that the record could not be reopened for further development.

In their Supreme Court briefs, petitioners argue that the Seventh Circuit defied the Supreme Court’s mandate that all of the RICO predicate acts and the judgment for petitioners must be reversed, and that the permanent injunction must be vacated. Petitioners contend that the Seventh Circuit erred in directing the district court to consider whether the four acts or threats of violence constitute Hobbs Act violations, and thus RICO predicates. The Supreme Court, they claim, expressly stated that “all of the predicate acts” supporting a RICO violation must be reversed, such that the Seventh Circuit was wrong to find that possible RICO predicates remained at issue.

Next, petitioners argue that the Hobbs Act does not criminalize acts or threats of violence unconnected to robbery or extortion. They rely on the plain text of the Hobbs Act, its legislative history, the fact that other circuits to address the question — as well as the DOJ — reject a “violence alone” construction, federalism concerns, and the rule of lenity. Most compelling is their assertion that under respondents’ reading, the Act would make a federal crime of any act or threat of physical violence to any person or property whenever that act or threat interferes with interstate commerce. Petitioners argue that this reading would “convert the Hobbs Act into a breathtakingly broad general federal ‘anti-violence’ statute, without any clear statement that Congress intended such an outcome.” This relates in turn to petitioners’ federalism argument, which contends that the Court should decline to turn the Hobbs Act “into a device for federalizing such traditional state offenses as assault, battery, and destruction of private property.”

Third, petitioners argue that RICO does not authorize private plaintiffs to seek injunctive relief. Once again they rely mainly on the text and structure of RICO’s remedial provisions, as well as the statute’s legislative history. They also argue that RICO’s remedial provisions were borrowed directly from the Sherman Act and the Clayton Act, antitrust statutes that do not authorize private injunctive relief. Arguing from a policy perspective, petitioners contend that construing RICO to authorize private plaintiffs to seek injunctive relief would vastly expand the scope of civil RICO. Petitioners point in addition to the fact that the United States (as an amicus in Scheidler II) opposed such a construction because it would essentially authorize private litigants to invade the Attorney General’s “exclusive authority to bring suit for injunctive relief.”

Finally, Operation Rescue argues that “this Court should leave no doubt that this case is over.” It argues that the Seventh Circuit gave no compelling grounds for further prolonging the already-lengthy case, and that there is no real basis, other than the potential for some injunctive relief, for respondents to further pursue the litigation.

The Solicitor General has filed an amicus brief addressing questions two and three. According to the brief, the United States has an interest because it brings prosecutions under the Hobbs Act as well as criminal and civil RICO cases that rely on Hobbs Act violations as RICO predicate acts. Like petitioners, the SG argues that the text of the Hobbs Act requires a link between acts or threats of physical violence and robbery or extortion. The SG also relies on the history of the Act to argue that it does not prohibit stand-alone violence that interferes with interstate commerce. The SG makes a compelling argument that the Hobbs Act has never been used to prosecute violence independent of an intended robbery or extortion. The United States is aware of only two attempts by federal prosecutors to use the Hobbs Act to prosecute stand-alone violence that affects interstate commerce, and according to the SG, the court of appeals summarily rejected the prosecutor’s attempts in both instances. In addition, in its 59-year history, the Hobbs Act has never resulted in criminal punishment for violence that did not further an intended robbery or extortion.

The SG also argues, like petitioners, that the text and structure of RICO indicate that the statute does not authorize private parties to seek injunctive relief. Furthermore, policy considerations do not support a private right to injunctive relief. In particular, the SG contends that Congress intended for RICO to assault organized crime and its economic roots. Thus, Congress authorized district courts to enter broad equitable relief, including divestiture and corporate reorganization and dissolution. Because these are drastic legal remedies, however, the SG contends that Congress entrusted the Attorney General with the exclusive authority to obtain such relief. Thus, the Court should not now put the power “to question the legal existence of a corporation” in the hands of a private party.

Respondents present a compelling argument that the nationwide injunction has been effective in preventing PLAN from terrorizing abortion clinics and their patients and staff. Still, they are faced with the difficult task of convincing the Court to leave open a case that it has already faced twice. Respondents contend that the Supreme Court’s opinion in Scheidler II only dealt with the 117 extortion predicates, and did not decide whether the Hobbs Act prohibits physical violence or threats of physical violence in interstate commerce apart from extortion or robbery. Respondents argue that because the Court in Scheidler II could have entered judgment for petitioners but instead chose to reverse and remand the proceedings, the Seventh Circuit properly remanded the case to the district court for consideration of an issue that was neither briefed nor argued before the Court in Scheidler II. Respondents also argue that in the alternative the Court should dismiss the case as improvidently granted and let the district court decide the issues. If the district court were to hold that the injunction cannot stand based on the remaining four counts, then there would be no need for the Court to even address the second and third questions presented.

Next, respondents contend that the Hobbs Act prohibits physical violence and threats of physical violence intended to interfere with interstate commerce. Respondents invoke the plain language of the Act to argue that the act or threat of violence need not be tied to robbery or extortion to constitute a violation. Respondents also invoke the title of the Hobbs Act — “Interference with commerce by threats or violence” — as indicative of Congress’s intent to criminalize stand-alone violence that interferes with interstate commerce. They contend that petitioners’ invocation of the Act’s legislative history is misguided because it attempts to use the legislative history to give the statute meaning other than the one the plain language dictates. In response to petitioners’ concern that respondents’ construction of the statute would federalize too many state crimes, respondents contend that the federal government has been prosecuting stand-alone violence under the Hobbs Act for 57 years, and “this problem has not been manifest.” If a problem were to develop, respondents suggest, the appropriate recourse would be for Congress to change the law.

Finally, respondents argue that RICO permits private litigants to seek injunctive relief. First, RICO’s plain language gives district courts broad power to “prevent and restrain” RICO violations, including the power to provide injunctive relief to private parties. They contend that absent an express statement from Congress, which is not present in RICO, the courts cannot be stripped of their equitable powers. Finally, petitioners argue that Congress’s purpose in enacting RICO was to criminalize the acts of groups, like petitioners, who “engage in a widespread and organized pattern of violence and threats.” Without the availability of injunctive relief, respondents argue, RICO’s purposes would not be adequately effectuated.

Respondents present a compelling story about the positive effects of the nationwide injunction thus far. But given that the Court seemingly gutted the judgment for respondents in Scheidler II, it might be difficult to convince the Court not to dispose of the case once and for all.