National Organization for Women, Inc. v. Joseph M. Scheidler

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 *818 trips to the United States Supreme Court, the Supreme Court held in Scheidler v. National Organization for Women, Inc., 537 U.S. 393 , 123 S.Ct. 1057 , 154 L.Ed.2d 991 (2003), 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.” Id. at 410 , 123 S.Ct. 1057 (emphasis 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, 91 Fed.Appx. 510 , 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 underlying 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 concluded that Scheidler and other individuals and organizations 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 attempting 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 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 . Second, 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, 123 S.Ct. 1057 .

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: “Because 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 extortion 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 statutes, a' separate RICO predicate offense.” Id. at 409 , 123 S.Ct. 1057 . Thus, the Court considered whether the verdict could stand based on the jury’s findings of state law extortion. Again, the Court concluded “[b]ecaüse petitioners did not obtain or attempt to obtain respondents’ property, *819 both the state extortion claims and the claim of attempting or conspiring to commit state extortion were fatally flawed.” Id. at 410 , 123 S.Ct. 1057 . Having disposed 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 determined that petitioners did not commit or attempt to commit extortion.” Id. at 410 , 123 S.Ct. 1057 .

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, 123 S.Ct. 1057 (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 proceedings 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, 91 Fed.Appx. 510 , 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 remained open. In my view, the order directly conflicts with the Supreme Court’s opinion. It also rests on an impermissible 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 holding negates any reasonable inference that those four predicate 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 , 123 S.Ct. 1057 . 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 certiora-ri. Yet, the Supreme Court expressly stated that because there was no underlying RICO violation, it was unnecessary to *820 consider whether private litigants could obtain injunctive relief under RICO. Id. at 411 , 123 S.Ct. 1057 . 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 granted certiorari. See Scheidler, 537 U.S. at 410 , 123 S.Ct. 1057 (“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 violence 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 predicates, the jury’s verdict would stand on the 25 state extortion predicates.” The plaintiffs, however, did not argue that the four predicate acts of violence against persons or property 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 “[wjithout an underlying RICO violation, the injunction issued by the District Court must necessarily be vacated.” Scheidler, 537 U.S. at 411 , 123 S.Ct. 1057 (emphasis added). But if so, the appropriate procedure would have been for the plaintiffs to seek rehearing from the Supreme Court. This court cannot 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 interfere with interstate commerce by: (1) robbery, (2) extortion, or (3) physical violence. The plaintiffs’ argument is misplaced, 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 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 *821 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 purposes of obstructing, delaying or affecting commerce “by robbery 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, 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” interpretation. Scheidler op. at 812. 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 instead “underscore[s] the fact that we have not, at this point, ruled either implicitly or explicitly on the Hobbs Act issue,” op. at 812, the panel nonetheless states that “[gjrammatically, the text can be read either way without undue strain,” id. at 813, and it, concludes that “we see nothing absurd in the three-way interpretation the plaintiffs have urged.” Id. at 816. 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 *822 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. Moreover, if the district court on remand somehow finds an injunction appropriate, then it will be required to choose between 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 considered it en banc.

Absent a writ of mandamus from the United States Supreme Court, see In re Blodgett, 502 U.S. 236, 240-41 , 112 S.Ct. 674 , 116 L.Ed.2d 669 (1992) (denying a petition for the writ of mandamus directed toward 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.

. The plaintiffs acknowledge that the "acts or threats of physical violence” predicate acts were based on the Hobbs Act, 18 U.S.C. § 1951 (a), and were not state law claims.

. 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." Op. at 812. However, the record, as it currently exists, fails to establish that the four acts of violence involved interstate commerce. As the panel recognizes, op. at 815, 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 affectfed] interstate commerce?” The jury answered “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.