Nat'l Organization v. Scheidler, Joseph M.

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relevant text of the unpublished order that we issued on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. § 1964

of 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