Nat'l Organization v. Scheidler, Joseph M. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 99-3076, 99-3336, 99-3891, 99-3892, and 01-2050
NATIONAL ORGANIZATION FOR WOMEN, INC., et al.,
Plaintiffs-Appellees,
v.
JOSEPH M. SCHEIDLER, et al.,
Defendants-Appellants.
____________
Appeals from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 86 C 7888—David H. Coar, Judge.
____________
ON PETITIONS FOR REHEARING AND
REHEARING EN BANC*
____________
DECIDED JANUARY 28, 2005
____________
Before ROVNER, WOOD and EVANS, Circuit Judges.
WOOD, Circuit Judge. On February 26, 2004, this court
issued an order responding to the remand of this case from
the Supreme Court of the United States. See Nat’l Org. for
*
After a vote, a majority of the judges in regular active service
did not wish to hear this case en banc. Chief Judge Flaum, Judge
Manion and Judge Kanne voted to grant rehearing en banc. Judge
Ripple took no part in consideration or decision of this case.
2 Nos. 99-3076, 99-3336, et al.
Women, Inc. v. Scheidler, 2004 WL 375995 (7th Cir. Feb. 26,
2004), on remand from Scheidler v. Nat’l Org. for Women,
Inc., 537 U.S. 393, 397 (2003) (NOW II). In that order, we
acknowledged the issues that were resolved by the Supreme
Court, and we identified one question that remains in the
case. The defendants then filed petitions for rehearing and
rehearing en banc from that order. This opinion responds to
those petitions.
I
For the convenience of all, we begin by reproducing the
relevant text of the unpublished order that we issued on
that date:
In 1986, the National Organization for Women (NOW)
and two health clinics that perform abortions (“plaintiffs”)
filed this class action alleging that defendants, a coali-
tion of antiabortion groups called the Pro-Life Action
Network (PLAN), Joseph Scheidler, and other individu-
als and organizations that oppose abortion, engaged in
conduct amounting to a pattern of extortion in violation
of the Racketeer Influenced and Corrupt Organizations
Act, 18 U.S.C. §§1961-68 (RICO). A more detailed account
of the facts and the lengthy procedural history of this
litigation is provided in the Supreme Court’s first opin-
ion in this case, National Organization for Women, Inc.
v. Scheidler, 510 U.S. 249 (1994) (NOW I), and in our
prior decisions, National Organization for Women, Inc.
v. Scheidler, 267 F.3d 687 (7th Cir. 2001), and National
Organization for Women, Inc. v. Scheidler, 986 F.2d 612(7th Cir. 1992).
After the Supreme Court in NOW I remanded the
case, the district court conducted a seven-week trial, at
which the plaintiffs introduced evidence of hundreds of
acts committed by the defendants or others acting in
Nos. 99-3076, 99-3336, et al. 3
concert with PLAN which, the plaintiffs contended, con-
stituted predicate acts under RICO. In response to spe-
cial interrogatories, the jury found that the defendants or
others associated with PLAN committed 21 violations of
federal extortion law (the Hobbs Act, 18 U.S.C. §1951),
25 violations of state extortion law, 25 instances of
attempting or conspiring to commit either federal or
state extortion, 23 violations of the Travel Act, 18 U.S.C.
§1952, 23 instances of attempting to violate the Travel
Act, and four “acts or threats of physical violence to any
person or property.” On this basis, the jury awarded
damages to the two named clinics, and the district court
issued a permanent nationwide injunction prohibiting
the defendants from conducting blockades, trespassing,
damaging property, or committing acts of violence at the
class clinics. The defendants appealed a number of issues
relating to the conduct of the trial and the issuance of
the injunction. We affirmed the district court’s judg-
ment in all respects. Scheidler, 267 F.3d at 693.
The defendants then filed a petition for a writ of cer-
tiorari with the United States Supreme Court, which the
Court granted with respect to two of the three questions
presented by the petition. Scheidler v. Nat’l Org. for
Women, Inc., 535 U.S. 1016 (2002). The Court limited
its grant of certiorari to the following questions:
1. Whether the Seventh Circuit correctly held, in
acknowledged conflict with the Ninth Circuit, that
injunctive relief is available in a private civil action
for treble damages brought under [RICO].
2. Whether the Hobbs Act, which makes it a crime
to obstruct, delay, or affect interstate commerce “by
robbery or extortion” and which defines “extortion”
as “the obtaining of property from another, with
[the owner’s] consent,” where such consent is “in-
duced by the wrongful use of actual or threatened
4 Nos. 99-3076, 99-3336, et al.
force, violence, or fear”—criminalizes the activities
of political protesters who engage in sit-ins and
demonstrations that obstruct the public’s access to
a business’s premises and interfere with the freedom
of putative customers to obtain services offered
there.
Pet. for Writ of Cert., 2002 WL 32134867 (U.S. Jan. 28,
2002) (No. 01-1118) (internal citation omitted). In its
opinion, the Court explained that it granted certiorari
to determine “whether petitioners committed extortion
within the meaning of the Hobbs Act” and “whether re-
spondents, as private litigants, may obtain injunctive
relief in a civil action” under RICO. NOW II, 537 U.S.
at 397. The Court held that “petitioners did not commit
extortion because they did not ‘obtain’ property from
respondents as required by the Hobbs Act,” and this de-
termination “renders insufficient the other bases or
predicate acts of racketeering supporting the jury’s con-
clusion that petitioners violated RICO.” Id. It therefore
“reverse[d] without reaching the question of the avail-
ability of private injunctive relief under §1964(c) of RICO,”
id., and held that “[w]ithout an underlying RICO vio-
lation, the injunction issued by the District Court must
necessarily be vacated,” id. at 411.
On remand to this court, the parties submitted State-
ments of Position pursuant to Circuit Rule 54. Plaintiffs
argue that, although the Court in NOW II disposed of
the 117 extortion-based predicate acts under RICO, the
defendants did not petition for a writ of certiorari on
the four predicate acts involving “acts or threats of phy-
sical violence to any person or property” and, accordingly,
the Court did not decide whether these acts alone could
support the district court’s injunction. In response,
defendants contend that the Hobbs Act does not outlaw
“physical violence” apart from extortion and robbery,
and therefore the Supreme Court’s holding that the
Nos. 99-3076, 99-3336, et al. 5
defendants did not commit extortion precludes a finding
that the four acts or threats of violence might independ-
ently support the injunction. We remand to the district
court to address this issue—which never before in this
litigation has been the subject of full briefing or judicial
consideration—in the first instance.
Although “[a]n order limiting the grant of certiorari
does not operate as a jurisdictional bar,” Piper Aircraft
Co. v. Reyno, 454 U.S. 235, 246 (1981), the Supreme Court
has consistently adhered to its Rule 14.1(a), which pro-
vides that “[o]nly the questions set out in the petition, or
fairly included therein, will be considered by the Court.”
See Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S.
184, 202 (2002); Glover v. U.S., 531 U.S. 198, 205 (2001).
Given the Court’s general refusal to decide issues out-
side the questions presented by a petition for a writ of
certiorari, see, e.g., Lopez v. Davis, 531 U.S. 230, 244
n.6 (2001); West v. Gibson, 527 U.S. 212, 233 (1999);
Nynex Corp. v. Discon, Inc., 525 U.S. 128, 140 (1998), we
will not presume that in this case it went beyond the
scope of its grant of certiorari, which it characterized as
“whether petitioners committed extortion within the
meaning of the Hobbs Act,” to hold sub silentio that the
four acts or threats of physical violence found by the jury
cannot support the injunction. We note that the Court’s
opinion in NOW II makes no mention of these four
predicate acts, and the parties’ briefs before the Court
reference these acts only in passing in footnotes. To con-
clude that the Court found these four predicate acts
insufficient to support the district court’s injunction
would therefore require that we find both that the Court
went beyond the scope of its grant of certiorari, and
that it did so with respect to an issue not briefed by the
parties and not discussed in its opinion. We decline to
draw such a conclusion.
Instead, we remand to the district court to determine
whether the four predicate acts involving “acts or threats
6 Nos. 99-3076, 99-3336, et al.
of physical violence to any person or property” are suf-
ficient to support the nationwide injunction that it im-
posed. See Glover, 531 U.S. at 205 (“As a general rule . . .
we do not decide issues outside the questions presented by
the petition for certiorari. Whether these issues remain
open, and if so whether they have merit, are questions
for the Court of Appeals or the District Court to consider
and determine in the first instance.” (citing Sup. Ct. R.
14.1(a))). As part of this inquiry, the court may find it
necessary to interpret the language of the Hobbs Act,
which provides that “[w]hoever in any way or degree
obstructs, delays, or affects commerce or the movement
of any article or commodity in 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 shall be fined under this title or
imprisoned not more than twenty years, or both.” 18
U.S.C. §1951(a). Specifically, the court may need to de-
termine whether the phrase “commits or threatens phy-
sical violence to any person or property” constitutes an
independent ground for violating the Hobbs Act or,
rather, relates back to the grounds of robbery or ex-
tortion. In the alternative, the court may conclude that
the proper interpretation of §1951(a) is immaterial, if it
decides that the four acts or threats of physical violence
found by the jury are not sufficient standing alone to
support the nationwide injunction. As the parties’
Circuit Rule 54 submissions offer only a preliminary
discussion of these issues, and neither this court nor the
district court has addressed them previously, we consider
it best to remand the case to the district court.
The February 26 order, in summary, thus concludes that
one narrow question has yet to be resolved in the case. The
Court did not have before it, and thus made no ruling on,
the question whether four more predicate acts involving “acts
Nos. 99-3076, 99-3336, et al. 7
or threats of physical violence to any person or property”
could support a more narrow injunction. We concluded that
the better part of wisdom was to remand that limited ques-
tion to the district court.
II
The petitions for rehearing take issue with two aspects of
our decision on remand: first, our finding that one issue
remains in the case that needs to be tied up, and second,
what the defendants believe is our implicit resolution of an
important question of statutory interpretation regarding
the scope of the Hobbs Act. Despite the arguments the dis-
senting judges have presented, we continue to believe that
the Court’s opinion left open the issue we identified. We take
this opportunity to underscore the fact that we have not, at
this point, ruled either implicitly or explicitly on the Hobbs
Act issue, for reasons of judicial economy and restraint. As
we explain below, there is no need for this court to decide a
question that may not even be pertinent to the case once
the district court has looked at the points that remain on
remand.
As we noted in the order reproduced above, the Supreme
Court’s opinion did not address the legal implications of the
remaining four acts of physical violence. Indeed, any reader
will see that the Court had nothing at all to say about them,
for the understandable reason that they were not included
in the petitions for certiorari. We have nothing to add on
that point to what we have already written. With respect to
the Hobbs Act dispute, which we describe in a moment, it
seemed possible (perhaps even likely) that the district court
might come to the conclusion that the four acts of physical
violence are not sufficient standing alone to justify any
injunction at all. It is not even clear whether the acts of
violence were sufficiently well defined to justify any
injunctive relief. Moreover, it is too late in the day for the
8 Nos. 99-3076, 99-3336, et al.
plaintiffs to try to prove an entitlement to damages asso-
ciated with those violations. They had their chance to do so
when the case was tried in the district court, and there is
nothing in the Supreme Court’s opinion that would justify
re-opening the original judgment on this point. The only
remaining question, to repeat, is whether a different injunc-
tion, tailored to the violations found, would be appropriate.
See, e.g., Missouri v. Jenkins, 515 U.S. 70, 89 (1995). The
district court is in the best position to decide what to do in
these circumstances, given its extensive familiarity with the
voluminous record in this case. This is not, however, an
invitation either to the court or to the parties to re-open
that record. If there is anything at all that is to be done, it
must be based on the record that has already been built.
If and only if the district court concludes that some form
of injunctive relief would be justified based on the four re-
maining predicate acts found by the jury, that court will have
to confront a more complex legal issue, namely, whether the
acts or threats of violence language in the Hobbs Act may
serve as an independent predicate act under RICO. The
relevant part of the Hobbs Act reads as follows:
Whoever in any way or degree obstructs, delays, or af-
fects commerce or the movement of any article or com-
modity in 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 sec-
tion shall be fined under this title or imprisoned not
more than twenty years, or both.
18 U.S.C. §1951(a) (emphasis added). As the defendants’
petitions for rehearing and plaintiffs’ answer demonstrate,
there are two possible interpretations of this language. “First
it may simply forbid committing or threatening violence in
furtherance of a plan to obstruct commerce by robbery or
extortion.” Craig M. Bradley, NOW v. Scheidler: RICO Meets
Nos. 99-3076, 99-3336, et al. 9
the First Amendment, 1994 SUP. CT. REV. 129, 142-43 (1994).
We will refer to this as the “two-way” interpretation, where
the two acts are robbery and extortion. “The other possible
reading . . . forbids threatening or committing physical vio-
lence in furtherance of a plan to ‘obstruct, delay, or affect
commerce’ (other than through robbery or extortion).” Id. at
143. Under the latter reading, the Hobbs Act identifies
three different ways in which illegal interference with inter-
state commerce may occur: (1) by robbery, (2) by extortion,
or (3) by physical violence. We will refer to this as the “three-
way” interpretation.
The choice between these two competing interpretations
is not obvious. Grammatically, the text can be read either
way without undue strain. Moreover, there is no decisional
law that throws light on which of the two readings is to be
preferred. The Supreme Court has had no occasion to ad-
dress the question. The Court has, however, had pertinent
things to say about the scope of the Hobbs Act, and it has
recently reaffirmed the utility of taking a “holistic” ap-
proach to questions of statutory interpretation, see Koons
Buick Pontiac GMC, Inc. v. Nigh, 125 S.Ct. 460, 466-67 (2004).
With that in mind, we take a closer look at this issue.
In Stirone v. United States, 361 U.S. 212 (1960), the
Supreme Court described the Hobbs Act as follows: the “Act
speaks in broad language, manifesting a purpose to use all
the constitutional power Congress had to punish interference
with interstate commerce by extortion, robbery or physical
violence.” Id. at 215. This phraseology suggests that the
Court saw three distinct types of predicate acts in the stat-
ute. See also United States v. Peterson, 236 F.3d 848, 851
(7th Cir. 2001); United States v. Carmichael, 232 F.3d 510,
516 (6th Cir. 2000); United States v. Rodriguez, 218 F.3d
1243, 1244 (11th Cir. 2000). None of these cases, however,
squarely confronted the question whether an act of physical
violence constitutes a distinct kind of predicate act—a point
that the Ninth Circuit underscored in United States v.
10 Nos. 99-3076, 99-3336, et al.
Yankowski, 184 F.3d 1071 (9th Cir. 1999), which held that
Stirone did not resolve the issue and went on to adopt the
two-way reading of the statute.
In their petition for rehearing, the defendants identify
language in the Supreme Court’s opinion in NOW II that,
they argue, indicates that the Court itself has now opted for
the two-way interpretation. But the passage to which they
point offers at best a subtle indication, and at worst it is not
helpful at all. In the course of discussing the legislative
history of the Hobbs Act, the Court noted that Congress
used the Penal Code of New York as a model for the Act.
NOW II at 403. It emphasized that the New York Penal Code
distinguished “between extortion and the separate crime of
coercion,” which “involved the use of force or threat of force
to restrict another’s freedom of action.” Id. at 405. “With
this distinction between extortion and coercion clearly drawn
in New York law prior to 1946,” the Court explained,
“Congress’s decision to include extortion as a violation of
the Hobbs Act and omit coercion is significant assistance to
our interpretation of the breadth of the extortion provision.”
Id. at 406. The Court acknowledged that “coercion and
extortion certainly overlap to the extent that extortion
necessarily involves the use of coercive conduct to obtain
property,” but nonetheless it stressed that “there has been
and continues to be a recognized difference between the two
crimes, and we find it evident that this distinction was not
lost on Congress.” Id. at 407-08 (internal citations omitted).
In drawing this conclusion and in declining to subsume the
crime of coercion into the Hobbs Act’s reference to “extor-
tion,” the Court quoted McNally v. United States, 483 U.S.
350 (1987), for the proposition that “when there are two
rational readings of a criminal statute, one harsher than the
other, we are to choose the harsher only when Congress has
spoken in clear and definite language.” NOW II, 537 U.S. at
409 (quoting McNally, 483 U.S. at 359-60); see also Leocal
v. Ashcroft, 125 S.Ct. 377, 384 n.8 (2004). It thus concluded
Nos. 99-3076, 99-3336, et al. 11
that “[i]f the distinction between extortion and coercion,
which we find controls these cases, is to be abandoned, such
a significant expansion of the law’s coverage must come
from Congress, and not from the courts.” 537 U.S. at 409.
This discussion, however, addressed the question whether
the definition of extortion was elastic enough to encompass
the acts of coercion whereby the defendants and their allies
were attempting to block women from clinics where abor-
tions were performed. The focus was on the deprivation of
the women’s right to obtain the services they desired and
whether that amounted to “extortion.” It is true that the
New York Penal Code defined coercion to include certain
acts or threats of violence against persons or property, see
NOW II, 537 U.S. at 406 n.10 (quoting from New York Penal
Code §530 (1909)). It is also true that the Court concluded
that Congress affirmatively chose not to list “coercion” as a
separate ground for Hobbs Act liability. Nonetheless, the
Court was not addressing the analytically distinct question
whether the conduct at issue could be considered as acts of
violence that obstructed, delayed, or affected interstate com-
merce, or that obstructed, delayed, or affected the movement
of articles or commodities in commerce. Had it done so, one
might have expected some discussion of cases like United
States v. Morrison, 529 U.S. 598 (2000) (holding in part that
the Violence Against Women Act could not be sustained as
a regulation of activity affecting interstate commerce) and
Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994)
(upholding in part an injunction protecting access to abor-
tion clinics entered pursuant to state law); see also 18 U.S.C.
§248 (freedom of access to clinics), upheld in United States
v. Wilson, 154 F.3d 658 (7th Cir. 1998). No such discussion
appears, for the simple reason that the issue was not before
the Court.
The Sixth and Ninth Circuits have both had occasion to
address the question how the Hobbs Act should be inter-
preted. See United States v. Yankowski, supra, 184 F.3d
1071; United States v. Franks, 511 F.2d 25 (6th Cir. 1975).
12 Nos. 99-3076, 99-3336, et al.
They both have concluded that the Act establishes just two
RICO predicate acts—robbery and extortion—and that the
phrase “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” simply modified the
words “robbery” and “extortion.” In Yankowski, the Ninth
Circuit considered the question whether an anti-abortion
protester who set fire to a clinic roof could be convicted
under the Hobbs Act. See 184 F.3d at 1072. The court re-
jected the three-part reading of the Act, explaining that “the
statutory language clearly requires that the violent act
pertain to a violation of this section, not merely to a vio-
lation of ‘the law’ generally.” Id. at 1073. On that basis, it
concluded that “[a] person may violate the Hobbs Act by
committing or threatening a violent act against person or
property, but only if it is in furtherance of a plan to inter-
fere with commerce by extortion or robbery.” Id. In support
of that interpretation, the court relied on the language of
the predecessor to the Hobbs Act, the Anti-Racketeering Act
of 1934, which it described as providing that “[a]ny person
who, in connection with or in any degree affecting trade or
commerce (a) commits or attempts extortion of money, or (b)
obtains property through extortion, or (c) ‘commits or
threatens to commit an act of physical violence or physical
injury to a person or property in furtherance of a plan or
purpose to violate sections (a) or (b),’ or (d) conspires with
respect to (a), (b), or (c). . . shall be imprisoned or fined.” Id.at 1073 n.5. The Sixth Circuit came to essentially the same
result in Franks, supra.Notably, in both Yankowski and Franks the government
had argued unsuccessfully that the statute described three
independent predicate acts. It appears to us that the United
States may still be taking that position with respect to the
scope of the Hobbs Act for purposes of criminal prosecutions,
though we cannot be sure without requesting the views of
the Solicitor General. We note, however, that in an unpub-
Nos. 99-3076, 99-3336, et al. 13
lished opinion, the Fourth Circuit stated that “[t]here are
two essential elements of a Hobbs Act conviction: interfer-
ence with interstate commerce, and a crime of robbery, ex-
tortion or violence.” United States v. Milton, 153 F.3d 724,
1998 WL 468812, at *1 (4th Cir. Aug. 4, 1998). It seems likely
that this court was expressing agreement with the position
of the government, though once again, it is impossible to
know.
The defendants also invoke the rule of lenity mentioned
by the Supreme Court in NOW II and Leocal in support of
the two-way interpretation. But this argument is premised
on the doomsday scenario they foresee if the Act is read to
permit three independent predicate acts. They predict that
under the three-way interpretation, “the traditional state-
law offenses of malicious destruction of property, reckless
endangerment, and even assault would be Hobbs Act viola-
tions punishable by 20 years in federal prison.” Operation
Rescue adds that this would make the Hobbs Act a “breath-
takingly broad general federal anti-violence statute” and it
would raise “obvious constitutional problems” under the
Supreme Court’s Commerce Clause jurisprudence. In our
view, these predictions greatly overstate the case. The
Hobbs Act itself contains a jurisdictional element that limits
its application to anyone who “obstructs, delays, or affects
commerce or the movement of any article or commodity in
commerce.” 18 U.S.C. §1951(a); see also Jones v. United
States, 529 U.S. 848 (2000) (adopting a narrow interpreta-
tion of the federal arson statute, 18 U.S.C. §844(i), to avoid
constitutional problems). We are satisfied that we have a
normal question of statutory interpretation before us and
that the sky is not likely to fall whichever way it is resolved.
The plaintiffs argue that the “plain” text of §1951 favors
their position. They adopt the reasoning offered by Profes-
sor Bradley:
[The Hobbs Act] may simply forbid committing or threat-
ening violence in furtherance of a plan to obstruct com-
14 Nos. 99-3076, 99-3336, et al.
merce by robbery or extortion. But this interpretation
makes no sense! Robbery and extortion frequently in-
volve the commission (robbery) or threat (extortion) of
violence, though “extortion” covers other threats as well.
Moreover, the “robbery and extortion” clauses also for-
bid “attempts” and conspiracies. Thus, under this read-
ing, the “physical violence” clause would be less inclusive,
and hence would add nothing, to the preceding “robbery”
and “extortion” clauses. One who commits violence in
furtherance of a plan to commit robbery or extortion has
either committed, attempted, or conspired to commit
robbery or extortion and thus has violated the first clause,
rendering the third clause nugatory.
Bradley, supra, at 142-43. At a minimum, it is hard to
argue with the proposition that any reading of the Hobbs
Act ought to take into account the statute as a whole. That
means that the language of §1951(a) should be understood
in light of the definitions provided by §1951(b). In the latter
subsection, the Act defines “robbery” and “extortion” so that
they already cover all acts of physical violence that are un-
dertaken in furtherance of the respective offense. “Robbery”
is defined in part as “the unlawful taking or obtaining of
personal property from the person . . . against his will, by
means of actual or threatened force, or violence, or fear of
injury, immediate or future, to his person or property.” 18
U.S.C. §1951(b)(1) (emphasis added). Likewise, “extortion” is
defined as “the obtaining of property from another, with his
consent, induced by wrongful use of actual or threatened
force, violence, or fear, or under color of official right.” Id. at
§1951(b)(2) (emphasis added).
Recognizing the well-worn canon of statutory interpreta-
tion under which a court should avoid making one part of a
statute meaningless, the defendants have tried to think of
cases in which the “physical violence” clause would cover
individuals who were acting in furtherance of a plan to
commit robbery or extortion, but whose acts do not already
Nos. 99-3076, 99-3336, et al. 15
fall within the definitions of robbery, extortion, or attempts or
conspiracies to rob or extort. Their efforts reveal the
difficulty they face in this connection. Anyone who commits
physical violence to a person or property in furtherance of
a plan of robbery or extortion would almost certainly be
found to have attempted one of those crimes, or, if others
are involved, to have conspired to commit one or the other.
Operation Rescue, for instance, offers the example of the
“subordinate ‘enforcer’ who, while not himself extorting or
robbing anything, harms people or property when the ex-
tortionist or robber does not obtain the desired payment
from the victim.” But such a subordinate “enforcer” would
fall squarely within the Act’s conspiracy language. Another
example the defendants offer is the case of one who threat-
ens violence in furtherance of a “personal” plan to rob a bank
or to commit extortion, without either conspiring with any-
one else or taking enough steps to amount to an attempted
crime. It is hard to see how such a remote threat could be
in furtherance either of extortion or robbery (defendants’
view) or in furtherance of a plan to “obstruct, delay” or other-
wise hamper the movement of goods in commerce (plaintiffs’
view). It seems unlikely that Congress included the “vio-
lence” language to capture such a tiny set of academic
hypotheticals.
Even if one were to conclude that the plain language
approach favors the interpretation urged by the plaintiffs,
there is still legislative history to consider. The defendants
argue that the legislative history of the Hobbs Act should be
allowed to trump the result one reaches looking at the
statute as a whole. Many judges believe that legislative his-
tory should be used, if at all, only to disambiguate language
that does not yield to any other mechanism. The Supreme
Court’s Koons Buick decision indicates that legislative
history is also appropriate if the plain language leads one
to an absurd result. But we see nothing absurd in the three-
way interpretation the plaintiffs have urged. To the con-
16 Nos. 99-3076, 99-3336, et al.
trary, it is the approach favored by the defendants that
threatens to leave one with an entire clause in the statute
that has no meaningful function to perform.
Having said that, we acknowledge that the legislative
history indicates that Congress was principally concerned
with the effects of robbery and extortion on interstate com-
merce (though it never affirmatively negated the three-way
interpretation, either at the time of the 1948 revision of the
Criminal Code or thereafter). See generally Callanan v.
United States, 364 U.S. 587, 591 & n.5 (1961). Until the
1948 revision and codification of Title 18 of the U.S. Code,
the statute explicitly linked the “acts of physical violence”
clause to the prohibition on robbery and extortion. See Pub.
L. No. 486, 60 Stat. 420 (1946). In 1948, however, the Act
assumed its present form. See Pub. L. No. 772, 62 Stat. 793-
94 (1948). While these revisions were intended to be formal,
stylistic changes, it is not beyond the realm of possibility that
the revisers may have made certain substantive changes,
either advertently or inadvertently. Compare, for example,
the similar fate of the Judicial Code, which was recodified
at the same time as the Criminal Code, and which changed
in a number of substantive respects as a result. See gener-
ally William W. Barron, The Judicial Code, 8 F.R.D. 439(1948-49). Moreover, the present form of the Act has been
in effect for more than 55 years, and the safest approach
may be to take it at face value.
III
We continue to believe, as we did when the February 26
order was issued, that it would be imprudent to resolve this
problem of statutory interpretation at this stage of the
litigation of this particular case. Most importantly, as we
indicated at the outset of this opinion, it may be unneces-
sary to the resolution of this case. Second, the brief dis-
cussion we have included in this opinion demonstrates that
the issue is a complex one that deserves not only full brief-
Nos. 99-3076, 99-3336, et al. 17
ing and participation by all parties, but also input from the
United States, given the effect of any ruling on the scope of
the Hobbs Act with or without RICO in the picture. Rather
than launch such an ambitious project at the tail end of
litigation that has been running for almost twenty years, we
prefer a wait-and-see approach.
In closing, we wish to re-emphasize that this remand is
not a “green light” to start this old litigation anew. The
plaintiffs have lost their bid to have a nationwide injunction
based on the 117 acts that the Supreme Court has now
decreed do not qualify as “extortion” for purposes of the
Hobbs Act and RICO. From what we can tell of the record,
it appears that it would be an abuse of discretion for the
district court to re-enter any nationwide injunction based
only on the four remaining acts of violence found by the
jury. Such an injunction would violate the rule requiring
courts to tailor injunctive relief to the scope of the violation
found. We note as well that the Freedom of Access to Clinic
Entrances Act, 18 U.S.C. §248, has now been in effect for
five more years since the district court first considered the
necessity of a nationwide injunction, and experience may
require a reassessment of the Act’s impact. Finally, it is too
late in the day for the plaintiffs to try to seek additional
damages relief for acts that they could have addressed at
the original trial. The only remaining question is therefore
whether any injunction is appropriate to redress the four
acts of physical violence that the jury found had taken place
and that were not encompassed within the Supreme Court’s
ruling. This does not open Pandora’s Box. It merely resolves
the final loose ends in this long-running litigation in a
manner that is fair to both sides and that acknowledges the
need to resolve all properly presented issues.
The case is REMANDED to the district court for further
proceedings consistent with this opinion.
18 Nos. 99-3076, 99-3336, et al.
MANION, Circuit Judge, joined by KANNE, Circuit Judge,
dissenting from the denial of petition to rehear en banc.
Following more than eighteen years of litigation, a seven-
week jury trial, and two trips to the United States Supreme
Court, the Supreme Court held in Scheidler v. National
Organization for Women, Inc., 537 U.S. 393 (2003), that “all
of the predicate acts supporting the jury’s finding of a RICO
violation must be reversed,” and that “[w]ithout an un-
derlying RICO violation, the injunction issued by the
District Court must necessarily be vacated.” Id. at 410 (em-
phasis added). Nonetheless, on remand, a panel of this court
concluded that not “all of the predicate acts” were reversed,
but that the jury’s finding of four predicate acts or threats
of violence remained viable. National Org. for Women, Inc.
v. Scheidler, 2004 WL 375995, at *3 (7th Cir. Feb. 26, 2004).
Today on rehearing, the panel reaffirms that remand order,
while unnecessarily debating, but not deciding, the scope of
the Hobbs Act. Because I believe that the Supreme Court
meant what it said, and because, in any event, the underly-
ing four predicate acts of violence cannot, as a matter of
law, constitute an independent violation of the Hobbs Act,
I dissent from the denial of the petition for rehearing
en banc.
The facts and procedural history of this case are provided
in detail in the Supreme Court’s decision in Scheidler. In
short, in Scheidler, following a seven-week trial, a jury con-
cluded that Scheidler and other individuals and organiza-
tions violated the civil provisions of RICO: the jury concluded
that the defendants committed 21 violations of the Hobbs Act,
25 violations of state extortion law, 25 instances of attempt-
ing or conspiring 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.1 The jury awarded
1
The plaintiffs acknowledge that the “acts or threats of physical
(continued...)
Nos. 99-3076, 99-3336, et al. 19
plaintiff, the National Women’s Health Organization of
Delaware, Inc., $31,455.64, and the National Women’s Health
Organization of Summit, Inc., $54,471.28, with the damages
trebled under RICO. The district court then entered an
injunction prohibiting certain illegal protest actions. The
defendants appealed to this court and this court affirmed.
National Org. for Women, Inc. v. Scheidler, 267 F.3d 687 (7th
Cir. 2001). The Supreme Court granted certiorari “to answer
two questions. First, whether petitioners committed extortion
within the meaning of the Hobbs Act, 18 U.S.C. § 1951. Sec-
ond, whether respondents, as private litigants, may obtain
injunctive relief in a civil action pursuant to 18 U.S.C. § 1964of the Racketeer Influenced and Corrupt Organization Act
(RICO).” Id. at 397.
On appeal, the Supreme Court first considered whether
the defendants committed extortion within the meaning of
the Hobbs Act. The Court held that the crime of extortion
under the Hobbs Act required the defendants to obtain or to
seek to obtain property. The Court then concluded: “Be-
cause we find that petitioners did not obtain or attempt to
obtain property from respondents, we conclude that there
was no basis upon which to find that they committed extor-
tion under the Hobbs Act.” Id. The Court did not end there,
however, because “[t]he jury also found that petitioners had
committed extortion under various state-law extortion stat-
utes, a separate RICO predicate offense.” Id. at 409. Thus,
the Court considered whether the verdict could stand based
on the jury’s findings of state law extortion. Again, the Court
concluded “[b]ecause petitioners did not obtain or attempt
to obtain respondents’ property, both the state extortion
claims and the claim of attempting or conspiring to commit
state extortion were fatally flawed.” Id. at 410. Having dis-
1
(...continued)
violence” predicate acts were based on the Hobbs Act, 18 U.S.C.
§ 1951(a), and were not state law claims.
20 Nos. 99-3076, 99-3336, et al.
posed of the Hobbs and state extortion predicate acts, the
Supreme Court then concluded that “[t]he 23 violations of
the Travel Act and 23 acts of attempting to violate the Travel
Act also fail. These acts were committed in furtherance of
allegedly extortionate conduct. But we have already deter-
mined that petitioners did not commit or attempt to commit
extortion.” Id. at 410.
Significantly, the Supreme Court then held: “Because all
of the predicate acts supporting the jury’s findings of a RICO
violation must be reversed, the judgment that petitioners
violated RICO must also be reversed. Without an underlying
RICO violation, the injunction issued by the District Court
must necessarily be vacated. We therefore need not address
the second question presented—whether a private plaintiff
in a civil RICO action is entitled to injunctive relief under
18 U.S.C. § 1964. The judgment of the Court of Appeals is
accordingly Reversed.” Id. at 411 (emphasis added). The
Supreme Court then entered an order stating “that the
judgment of the above court in these causes is reversed with
costs, and the cases are remanded to the United States
Court of Appeals for the Seventh Circuit for further pro-
ceedings in conformity with the opinion of this Court.” At
that point, we should have closed the case.
But even with the Supreme Court’s explicit holding that
“all of the predicate acts supporting the jury’s finding of a
RICO violation must be reversed,” and its directive that “the
injunction issued by the District Court must necessarily be
vacated,” our court remanded this case to the district court
for further proceedings, namely to determine “whether the
four predicate acts involving ‘acts or threats of physical
violence to any person or property’ are sufficient to support
the nationwide injunction that it imposed.” Scheidler, 2004
WL 375995, at *3. The panel reasoned that remand was
necessary because the Supreme Court had not granted
certiorari on that issue and, therefore, the question re-
mained open. In my view, the order directly conflicts with
Nos. 99-3076, 99-3336, et al. 21
the Supreme Court’s opinion. It also rests on an impermissi-
ble reading of the Hobbs Act, and unnecessarily revives a
case that is already more than eighteen years old.
Although the Supreme Court did not expressly consider
whether the jury’s finding of four predicate acts of violence
to persons or property could support the jury’s verdict on
the plaintiffs’ RICO claim, the Supreme Court clearly stated
that “all of the predicate acts supporting the jury’s finding
of a RICO violation must be reversed.” This unequivocal hold-
ing negates any reasonable inference that those four pre-
dicate acts remain an issue. The panel concludes otherwise
by noting that the Supreme Court did not grant certiorari
to resolve that issue.
But, the Supreme Court did specifically grant certiorari
to consider the question of whether a private litigant in a
civil RICO action is entitled to injunctive relief, but then
found it unnecessary to address that question because there
was no “underlying RICO violation . . . .” Scheidler, 537 U.S.
at 411. This is significant because if the four threats or acts
of violence claims remained viable, as the panel concludes
and the plaintiffs argue, there would be an “underlying
RICO violation,” and it would have been necessary for the
Supreme Court to address the second question for which it
had granted certiorari. Yet, the Supreme Court expressly
stated that because there was no underlying RICO viola-
tion, it was unnecessary to consider whether private
litigants could obtain injunctive relief under RICO. Id. at
411. Thus, the panel’s remand order, which allows for the
possibility that there is still an “underlying RICO violation,”
is again inconsistent with the Supreme Court’s opinion.
Moreover, although the Supreme Court did not grant
certiorari to consider the state law extortion claims or the
Travel Act claims, it nonetheless considered the validity of
those claims, as they depended entirely on the Supreme
Court’s resolution of the extortion claims for which it had
22 Nos. 99-3076, 99-3336, et al.
granted certiorari. See Scheidler, 537 U.S. at 410 (“The 23
violations of the Travel Act and 23 acts of attempting to
violate the Travel Act also fail. These acts were committed
in furtherance of allegedly extortionate conduct. But we
have already determined that petitioners did not commit or
attempt to commit extortion.”); id. (“Because petitioners did
not obtain or attempt to obtain respondents’ property, both
the state extortion claims and the claim of attempting or
conspiring to commit state extortion were fatally flawed.”).
Similarly, as discussed below, the four predicate acts of vio-
lence to persons or property depend on the viability of the
extortion claims in this case. By holding that the defendants
did not commit extortion, it necessarily follows that the four
predicate acts also cannot support the RICO verdict. True,
the Supreme Court expressly addressed the state law
extortion claims and the Travel Act claims, but did not
mention the four violence against person or property claims.
But that is not surprising given that on appeal before the
Supreme Court, the plaintiffs discussed those claims, and
specifically argued that “even without the Hobbs Act pre-
dicates, the jury’s verdict would stand on the 25 state extor-
tion predicates.” The plaintiffs, however, did not argue that
the four predicate acts of violence against persons or prop-
erty independently justified the jury’s verdict. Therefore,
the Supreme Court found no need to expressly address that
question. But its holding that “all of the predicate acts
supporting the jury’s finding of a RICO violation must be
reversed . . .” is conclusive.
One could argue that the Supreme Court made a mistake
when it stated that “all of the predicate acts supporting the
jury’s finding of a RICO violation must be reversed,” and
that “[w]ithout an underlying RICO violation, the injunction
issued by the District Court must necessarily be vacated.”
Scheidler, 537 U.S. at 411 (emphasis added). But if so, the
appropriate procedure would have been for the plaintiffs to
seek rehearing from the Supreme Court. This court cannot
Nos. 99-3076, 99-3336, et al. 23
ignore the Supreme Court’s mandate merely because the
Supreme Court might not have meant what it said.
Even assuming that the panel’s remand order could be
labeled a reasonable interpretation of the Supreme Court’s
opinion, the four predicate acts of violence to persons or
property cannot, as a matter of law, constitute a violation
of the Hobbs Act, as the plaintiffs argue. Specifically, the
plaintiffs argue that the Hobbs Act makes it illegal to inter-
fere with interstate commerce by: (1) robbery, (2) extortion,
or (3) physical violence. The plaintiffs’ argument is mis-
placed, as the plain language of the Hobbs Act makes clear.
The Hobbs Act provides:
Whoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or com-
modity in 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 sec-
tion shall be fined under this title or imprisoned not
more than twenty years, or both.
18 U.S.C. § 1951.
The plain language of the Hobbs Act makes clear that it
does not make threats of “physical violence to any person or
property” illegal. Rather, it prohibits threats of “physical
violence to any person or property in furtherance of a plan
or purpose to do anything in violation of this section.” Thus,
for the four acts or threats of violence to constitute a
violation of the Hobbs Act, they must have been for pur-
poses of obstructing, delaying or affecting commerce “by rob-
bery or extortion.” United States v. Yankowski, 184 F.3d 1071(9th Cir. 1999); United States v. Franks, 511 F.2d 25 (6th
Cir. 1975). Yet, the Supreme Court held that the facts in
this case did not support a finding of extortion, as a matter
of law. (And the plaintiffs do not make a claim of robbery.)
Accordingly, there is no possible Hobbs Act violation and
the remaining four predicate acts, like the Travel Act claims,
24 Nos. 99-3076, 99-3336, et al.
cannot, as a matter of law, support a RICO verdict.2
Nonetheless, on rehearing the panel unnecessarily sets up
a debate on the meaning of the Hobbs Act, positing as
plausible two different interpretations of the Hobbs Act—
what the panel dubs a “two-way” and a “three-way” inter-
pretation. Scheidler slip op. at 9. Using the panel’s jargon,
a “two-way” interpretation of the Hobbs Act allows for only
two independent ways to violate the Hobbs Act: 1) Robbery
or 2) Extortion. The three-way interpretation, according to
the panel, provides for a third: 3) Physical violence to any
person or property.
Although the panel refuses to resolve the debate and in-
stead “underscore[s] the fact that we have not, at this point,
ruled either implicitly or explicitly on the Hobbs Act issue,”
2
There is yet another reason that further proceedings on remand
are unnecessary. In remanding the Hobbs Act question, the panel
on rehearing instructs that “[i]f there is anything at all that is to
be done, it must be based on the record that has already been
built.” Slip op. at 8. However, the record, as it currently exists,
fails to establish that the four acts of violence involved interstate
commerce. As the panel recognizes, slip op. at 13, the Hobbs Act
violation must “affect[ ] commerce or the movement of any article
or commodity in commerce.” 18 U.S.C. § 1951(a). In this case,
though, the jury did not determine that the four acts or violence
affected commerce: The Special Interrogatories and Verdict Form
did not ask the jury to decide separately whether each alleged
predicate act involved interstate commerce. Rather, Special
Interrogatory 8 asked whether “any of the acts that you found in
Question 4 above affect[ed] interstate commerce?” The jury an-
swered “yes” to that question, but the jury did not specify which
of the acts listed in Interrogatory 4 affected interstate commerce.
Interrogatory 4 included eight sub-components, (a) - (h), only one
of which involved the acts or threats of physical violence to any
person or property, which the remand order indicates remain
viable. Because the jury did not specifically conclude that those
acts affected interstate commerce, on the record as it stands, no
Hobbs Act violation could exist.
Nos. 99-3076, 99-3336, et al. 25
slip op. at 7, the panel nonetheless states that “[g]ramma-
tically, the text can be read either way without undue strain,”
id. at 9, and it concludes that “we see nothing absurd in the
three-way interpretation the plaintiffs have urged.” Id. at
16. However, contrary to the panel’s conclusion, the three-
way interpretation is not plausible given the plain language
of the Hobbs Act. As explained above, the “physical violence
to any person or property” clause of the Hobbs Act, states in
its entirety: “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, . . .” Thus, the
only way “physical violence” constitutes a violation of the
Hobbs Act is if it (in addition to satisfying the interstate
commerce requirement) is in furtherance of “robbery” or
“extortion. Yankowski, 184 F.3d 1071; Franks, 511 F.2d 25.
Clearly, under the Hobbs Act, physical violence to any
person or property is confined to furthering robbery or
extortion. It does not stand alone as a separate violation.
The full court should decide this clear question of law now,
instead of presenting competing theories for the district
court to resolve on remand.
Although an order for a reversal and remand from the
Supreme Court is not the typical case for which en banc is
appropriate, procedurally that is the only option available
to the defendants before this court. Given the age of this
case, remanding to the district court unnecessarily wastes
additional judicial resources. Granted, it is hard to see how
four acts of violence committed nearly twenty years ago—
and well before Congress enacted the Freedom of Access to
Clinic Entrances Act—would justify an injunction in 2005.
It is likely and certainly appropriate that the district court
will dispose of the case promptly on that basis. But even
that most likely result requires additional resources of the
parties and the judicial system. This is unnecessary because
the Supreme Court’s holding that there was no extortion
means that no Hobbs Act violation possibly exists. More-
26 Nos. 99-3076, 99-3336, et al.
over, if the district court on remand somehow finds an in-
junction appropriate, then it will be required to choose be-
tween the two legal options the panel presents. The losing
side would surely appeal, presenting the pure issue of law
that this court would have resolved by now had we consid-
ered it en banc.
Absent a writ of mandamus from the United States
Supreme Court, see In re Blodgett, 502 U.S. 236, 240-41 (1992)
(denying a petition for the writ of mandamus directed to-
ward the Ninth Circuit without prejudice, but stating that
such relief would be available if the circuit court caused an
unwarranted delay in the case’s disposition), the defendants
face an unnecessary remand. I therefore DISSENT from the
denial of rehearing en banc. Id.A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-28-05