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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13196
Non-Argument Calendar
________________________
D.C. Docket No. 6:12-cv-01092-RBD-GJK
RANDEL ROCK,
Plaintiff-Appellant,
versus
BAE SYSTEMS, INC.,
BAE SYSTEMS TECHNOLOGY SOLUTIONS & SERVICES, INC.,
Defendants-Appellees,
CLINT DANIEL STOTT, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 26, 2014)
Before MARCUS, MARTIN and FAY, Circuit Judges.
PER CURIAM:
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Randel Rock, appearing pro se, appeals the district court’s dismissal of his
complaints, which alleged violations of the Interstate Stalking Punishment and
Prevention Act (“ISPPA”) and the Racketeer Influenced and Corrupt Organizations
Act (“RICO”). Ruling in favor of Rock’s former employer, BAE, 1 the district
court dismissed the ISPPA claim because that statute did not provide for a private
right of action, and dismissed the RICO claims because Rock’s alleged business or
property injuries were not the result of the claimed RICO predicate acts, and thus
he lacked standing to sue under RICO. On appeal, Rock challenges both of these
conclusions. After thorough review, we affirm.
We review de novo whether a statute provides a private right of action.
Touche Ross & Co. v. Redington,
442 U.S. 560, 568 (1979); Dionne v.
Floormasters Enters.,
667 F.3d 1199, 1203 (11th Cir. 2012). We also review de
novo whether a party has standing to assert a RICO claim. Maiz v. Virani,
253
F.3d 641, 654 (11th Cir. 2001). We review de novo the grant of a motion to
dismiss under Rule 12(b)(6) for failure to state a claim. Ironworkers Local Union
68 v. AstraZeneca Pharm.,
634 F.3d 1352, 1359 (11th Cir. 2011). We accept the
allegations in the complaint as true and construe them in the light most favorable to
the plaintiff.
Id. While courts are to liberally construe pro se pleadings, we are not
required to “rewrite an otherwise deficient pleading in order to sustain an action.”
1
We refer to BAE Systems, Inc. and its subsidiary company, BAE Systems Technology
Solutions & Services, Inc., collectively as “BAE.”
2
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GJR Invs., Inc. v. Cnty. of Escambia,
132 F.3d 1359, 1369 (11th Cir. 1998),
overruled on other grounds by Ashcroft v. Iqbal,
556 U.S. 662 (2009).
First, we are unpersuaded by Rock’s claim that the ISPAA provides a private
cause of action. In answering this question, our “task is limited solely to
determining whether Congress intended to create the private right of action
asserted.” Touche
Ross, 442 U.S. at 568; Thompson v. Thompson,
484 U.S. 174,
179 (1988). In this context, the Supreme Court has discussed four factors: (1)
whether the plaintiff is a member of the class “for whose especial benefit” the
statute was enacted; (2) whether there is any indication of “legislative intent,
explicit or implicit, either to create such a remedy or to deny one”; (3) whether an
implied private remedy is “consistent with the underlying purposes of the
legislative scheme”; and (4) whether the cause of action is one “traditionally
relegated to state law.”
Thompson, 484 U.S. at 179. However, while these four
factors are “relevant,” the “central inquiry remains whether Congress intended to
create, either expressly or by implication, a private cause of action.” Touche
Ross,
442 U.S. at 575-76; see also Chrysler Corp. v. Brown,
441 U.S. 281, 316 (1979)
(noting that criminal statutes “rarely” are read to imply a private right of action).
The ISPPA, which is part of the Violence Against Women Act of 1994,
provides that a person who travels in interstate commerce with the intent to harass
or intimidate another person and who, in the course of such travel, places the
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victim in reasonable fear of death or serious bodily injury, shall be punished as
provided by 18 U.S.C. § 2261(b), which addresses interstate domestic violence,
and provides for both imprisonment and fines. 18 U.S.C. §§ 2261A, 2261(b); see
Pub. L. No. 103-322, Title IV, 108 Stat. 1796, 1902, 1926-31 (1994). Under the
statute, a court may order, “in addition to any other civil or criminal penalty
authorized by law,” that a defendant convicted under § 2261A pay restitution to the
victim for the full amount of the victim’s losses. 18 U.S.C. § 2264(a), (b)(1).
Nevertheless, having carefully reviewed § 2261A, we cannot find anything
in its plain language to indicate that it is more than a “bare criminal statute.” See
Cort v. Ash,
422 U.S. 66, 80 (1975). Section 2261 also does not explicitly contain
a private right of action, and § 2264’s provisions for restitution plainly state that
the penalty is “in addition to any other” penalty authorized by law -- thus, neither
of these provisions provide for a private right of action either. Further, there is no
evidence from which we can infer that Congress intended to create a private right
of action under § 2261A. The legislative history does not suggest that Congress
contemplated a private right of action, and in fact indicates the opposite -- that
Congress only intended to aid law enforcement in their criminal investigations and
prosecutions. See H.R. Rep. No. 104-557, at 2-3. Nor does it appear that Rock,
who alleges harassment by his employer, is a member of the protected class for
whom § 2261A was especially enacted, namely victims of domestic violence. See
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Combating Violence Against Women: Hearing on S. 1729 Before the S. Comm. on
the Judiciary, 104th Cong. 3-4, 11-14 (1996);
Cort, 422 U.S. at 79. For the same
reason, a private right of action would be inconsistent with the underlying purpose
of the statute. See H.R. Rep. No. 104-557, at 2-3;
Cort, 422 U.S. at 79. In short,
there is no basis from which we can or should infer a private right of action, and
the district court properly dismissed Rock’s claim.
We also find no merit to Rock’s claim that he had standing to sue under
RICO. RICO provides for civil and criminal liability against persons engaged in
“a pattern of racketeering activity.” 18 U.S.C. § 1962(c); Anza v. Ideal Steel
Supply Corp.,
547 U.S. 451, 453 (2006). To recover on a civil RICO claim, “the
plaintiffs must prove, first, that § 1962 was violated; second, that they were injured
in their business or property; and third, that the § 1962 violation caused the injury.”
Cox v. Adm’r, U.S. Steel & Carnegie,
17 F.3d 1386, 1396 (11th Cir. 1994); see
also Williams v. Mohawk Indus., Inc.,
465 F.3d 1277, 1282-83 (11th Cir. 2006).
In order to show a § 1962 violation, a plaintiff “must satisfy four elements of
proof: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering
activity.”
Williams, 465 F.3d at 1282 (quotations omitted). To show “conduct of
an enterprise,” a plaintiff must show that an enterprise, which “includes any
individual, partnership, corporation, association, or other legal entity, and any
union or group of individuals associated in fact although not a legal entity,” had a
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common goal. 18 U.S.C. § 1961(4);
Williams, 465 F.3d at 1283. A RICO
“pattern” is two predicate acts of racketeering within a ten-year period, and
“racketeering activity” is any act which is indictable under the list of criminal
offenses in 18 U.S.C. § 1961. See 18 U.S.C. §§ 1961(5); Langford v. Rite Aid of
Ala., Inc.,
231 F.3d 1308, 1312 (11th Cir. 2000). This list of criminal offenses
includes: obstruction of criminal investigations relating to a violation of federal
law, 18 U.S.C. § 1510; intimidating a person in order to prevent his testimony in an
official proceeding or prevent the person from informing the police about the
commission of a federal offense, 18 U.S.C. § 1512(b); and retaliating against a
witness regarding a federal offense by interfering with his lawful employment or
livelihood, 18 U.S.C. § 1513(e). Notably, the federal obstruction and witness
intimidation claims are only applicable to federal proceedings. See Green Leaf
Nursery v. E.I. DuPont De Nemours & Co.,
341 F.3d 1292, 1307 (11th Cir. 2003).
In order to have standing under RICO, a civil plaintiff must show that he
suffered business or property injuries as a result of a RICO violation. See
Williams, 465 F.3d at 1287 (stating that this requirement “implicates two concepts:
(1) a sufficiently direct injury so that a plaintiff has standing to sue; and (2)
proximate cause,” and noting that the two concepts have “significant overlap”).
Although RICO is to be “read broadly, the injury to business or property limitation
on RICO standing has a restrictive significance.”
Ironworkers, 634 F.3d at 1361
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(quotation and citation omitted). Recovery based on personal injury, including
claims of emotional and mental distress, is not cognizable under RICO. Pilkington
v. United Airlines,
112 F.3d 1532, 1536 (11th Cir. 1997). In evaluating whether a
§ 1962 violation caused a civil plaintiff’s injuries, the “central question . . . is
whether the alleged violation led directly to the plaintiff’s injuries.”
Williams, 465
F.3d at 1287 (quotation omitted). “[O]ne or more of the predicate acts must not
only be the ‘but for’ cause of the injury, but the proximate cause as well.” Green
Leaf, 341 F.3d at 1307; see
Anza, 547 U.S. at 456 (2006) (noting that proximate
cause requires “some direct relation between the injury asserted and the injurious
conduct alleged” (quotation omitted)). A wrongful act is a proximate cause of
injury “if it is a substantial factor in the sequence of responsible causation.” Maiz
v. Virani,
253 F.3d 641, 675 (11th Cir. 2001) (citation and quotation omitted).
Here, Rock does not have standing to sue under RICO. Rock’s complaint
alleged that his former employer, BAE, conspired to surveil, harass, and intimidate
him; defamed him and denied him unemployment benefits; damaged his property;
and, in addition to other state law offenses, assaulted him in violation of Florida
law. He alleged that the two predicate acts of racketeering that allowed him to file
a civil RICO suit were BAE’s attempts to dissuade him from reporting the assaults.
He further alleged that his business and property injuries consisted of a destroyed
shed, denied unemployment benefits, and lost employment opportunities due to
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BAE’s defamation. However, based on the contents of the complaint, Rock has
failed to allege any predicate acts under RICO, because, among other things, he
failed to claim that the obstruction and witness intimidation allegations were
related to federal proceedings. See Green
Leaf, 341 F.3d at 1307.
Nor has Rock shown or attempted to explain how the injuries were directly
and proximately caused by the alleged predicate acts. Instead, he argues that his
damages were a “natural and foreseeable consequence” of BAE’s actions, which
does not meet the requirement that the RICO predicate acts be “a substantial factor
in the sequence of responsible causation.” See
Maiz, 253 F.3d at 675 (citation and
quotation omitted). Although Rock relies on Keystone Insurance Co. v. Houghton,
a case in which the Third Circuit ruled that civil RICO plaintiffs can rely on
predicate acts that form a pattern of racketeering “even though the specific act
relied on has not caused direct injury,” this “last predicate act” rule was overruled
by the Supreme Court. See
863 F.2d 1125, 1131-32 (3d Cir. 1998), overruled by
Klehr v. A.O. Smith Corp.,
521 U.S. 179, 186-91 (1997). Accordingly, Rock
cannot establish standing based on any claimed injuries proximately caused by
BAE’s attempts to dissuade him from reporting assaults. See Ironworkers Local
Union, 634 F.3d at 1361.2
2
We decline to review Rock’s arguments that BAE’s defamation and wrongful denial of
his unemployment benefits constitute RICO predicate acts because he has waived them by
raising them for the first time on appeal and then only in his reply brief. See Walker v. Jones, 10
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AFFIRMED.
F.3d 1569, 1572 (11th Cir. 1994); Lovett v. Ray,
327 F.3d 1181, 1183 (11th Cir. 2003).
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