Petitioners Brief — Scheidler v. National Organization for Women, Inc.

er} U.S.

SEP - 2 2005

..3

Nos. 04-1244 & 04-1352

IN THE

Supreme Court of the United States

JOSEPH SCHEIDLER, ET AL.,

Petitioners,

V.

NATIONAL ORGANIZATION FOR WOMEN, ET AL.,

Respondents.

OPERATION RESCUE,

\ Vv.

Petitioner,

NATIONAL ORGANIZATION FOR WOMEN, ET AL.,

“pres Respondents.

On Wnits of Certiorari to the

United States Court of Appeals for the Seventh Circuit

BRIEF FOR PETITIONER OPERATION RESCUE

THOMAS P. MONAGHAN JAY ALAN SEKULOW

JOHN P. TUSKEY Counsel of Record

LAURA B. HERNANDEZ WALTER M. WEBER

SHANNON D. WOODRUFF PAUL J. LARKIN, JR.

LARRY L. CRAIN STUART J. ROTH

ROBERT W. ASH VINCENT P. MCCARTHY

AMERICAN CENTER FOR ANN-LOUISE LOHR

LAW & JUSTICE AMERICAN CENTER FOR

1000 Regent University Dr. Law & JUSTICE

Virginia Beach, VA 23464 201 Maryland Avenue, N.E.

(757) 226-2489 Washington, DC 20002

(202) 546-8890

Attorneys for Petitioner Operation Rescue

i

QUESTIONS PRESENTED

In Scheidler v. National Organization for Women, Inc., 537

U.S. 393 (2003), this Court held that “all of the predicate acts

supporting the jury’s finding of a RICO violation must be

reversed,” that therefore “the judgment that petitioners violated

RICO must also be reversed,” and that “[w]ithout an underlying

RICO violation, the injunction issued by the district court must

necessarily be vacated.” Jd. at 411. On remand, however, the

Seventh Circuit held that all of the predicate acts were not

reversed, and that an injunction under RICO might yet be

sustained against petitioners on the basis of the supposedly

unreversed predicate acts. The questions presented are:

1. Did the Seventh Circuit defy this Court’s mandate?

2. Did the Seventh Circuit err by ruling, in conflict with

the Sixth and Ninth Circuits, and in conflict with the

official position of the Department of Justice, that the

federal Hobbs Act, 18 U.S.C. § 1951, may plausibly be

construed to prohibit, without any connection to

robbery or extortion, any act or threat of “physical

violence to any person or property” that “in any way or

degree .. . affects commerce”?

3. Did the Seventh Circuit err by ruling, in conflict with

the Ninth Circuit, and in conflict with the official

position of the Department of Justice, that private civil

litigants may obtain injunctive relief under the federal

Racketeer Influenced and Corrupt Organizations

(RICO) statute?

ii

PARTIES

In addition to petitioner (in No. 04-1352) Operation Rescue

(OR),' the following parties were defendants-appellants in the

Seventh Circuit and are petitioners (in No. 04-1244) here:

Joseph M. Scheidler

Pro-Life Action League, Inc.

Andrew D. Scholberg

Timothy Murphy

The National Organization for Women, Inc. (NOW),

respondent in Nos. 04-1244 & 04-1352 and plaintiff-appellee

below, sued on behalf of itself and its members and was certified

as representative of the plaintiff “class of women who are not

NOW members and whose rights to the services of women’s

health centers in the United States at which abortions are

performed have been or will be interfered with by defendants’

unlawful activities.” OR Pet. App. 91a n.12. In addition, there

are two other named respondents (in Nos. 04-1244 & 04-1352),

the Delaware Women’s Health Organization, Inc. (DWHO) and

the Summit Women’s Health Organization, Inc. (Summit). Both

DWHO and Summit sued on behalf of themselves and were

certified as representatives of the plaintiff “class of all women’s

health centers in the United States at which abortions are

performed.” /d. These respondents, like NOW, were plaintiffs-

appellees in the Seventh Circuit.

‘Operation Rescue is not a corporation. See S. Ct. Rule 29.6.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED 2... wees ccnccccccccuves. i

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TABLE OF AUTHORITIES £0... ccccccccssceuenes vii

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SUMMARY OF ARGUMENT ............. ke eawbees 6

SE eo Sk eN AACR EER SSH Rd OO NEA amine Vek Oe ous 8

I. | THIS COURT’S DECISION IN

SCHEIDLER II DEFINITIVELY

DISPOSED OF THIS CASE IN ITS

Es. bi nd bowen ererteeoaedesésaucenee 8

II. THE HOBBS ACT DOES NOT

PROHIBIT VIOLENCE WHOLLY

APART FROM ANY ROBBERY

EY are te Kevava ees eoetines 12

Il.

iv

The Text of the Hobbs Act

Precludes a “Violence Alone”

I i a 12

Both of the Other Circuits to

Address the Question, as Well as the

Department of Justice, Reject a

“Violence Alone” Construction. ......... 14

Federalism Concerns Preclude a

“Violence Alone” Construction. ......... 15

The Rule of Lenity Precludes a

“Violence Alone” Construction. ......... 16

RICO DOES NOT AUTHORIZE PRIVATE

PEEVES EET? Sb dec knantsnasvaunee 18

A.

RICO’s Statutory Text Gives the

Attorney General Exclusive Authority

to Seek Injunctive Relief. .............. 19

1. The text and structure of RICO’s

remedial provisions preclude private

| ee 19

2. The remedial provisions of RICO

were borrowed directly from

remedial provisions of antitrust

statutes that do not authorize

v

RICO’s Legislative History Shows

Congress Repeatedly and

Deliberately Declined to Authorize

Private Injunctive Relief. .............. 26

1. Congress specifically selected

treble damages as the exclusive

remedy for private RICO suits. ...... 26

2. Congress repeatedly considered,

but failed to adopt, a private

injunctive remedy under RICO. ...... 27

The Counterarguments in Favor of

Private Injunctive Relief Under RICO

td Re ee et aw 30

1. The word “and” does not create a |

private injunctive remedy. .......... 31

2. Subsection (a) of § 1964 does not

create # private injunctive remedy. ... 33

3. RICO’s “liberal construction” clause

and general purposes do not create

a private injunctive remedy.......... 35

The United States as Amicus in

Scheidler II Officially Opposed

Construing RICO to Authorize

Private Litigants to Invade the

Attorney General’s Exclusive

Prerogative to Seek Equitable Relief. ..... 36

IV. THIS COURT SHOULD LEAVE NO DOUBT

THAT THIS CASE IS OVER. ...............

CONCLUSION

vii

TABLE OF AUTHORITIES

Page

CASES

Agency Holding Corp. v. Malley-Duff &

Assocs., 483 U.S. 143 (1987) ......... 22, 25, 27, 28, 29

Amoco Production Co. v. Village of Gambell,

a EE ok di ec dacena soe cdndepeted 10

Beck v. Prupis, 529 U.S. 494 (2000)... 2... 2... 2 ee eee 25

California v. American Stores Co., 494 U.S. 271

tc éivesiandtmii ie aeaneewes én ae en aed 24

Chambers Dev. Co. v. Browning-Ferris Indus..,

590 F. Supp. 1528 (W.D. Pa. 1984) ............. 30, 31

City of Rancho Palos Verdes v. Abrams,

ee PE i oe db hae ehh a eeer bb aak 21

Cleveland v. United States, 531 U.S. 12 (2000) ......... 17

Curley v. Cumberland Farms Dairy, Inc.,

Pe , BOP BEEP odviccscccedsecesec 31

DeMent v. Abbott Capital Corp., 589 F. Supp.

PAE DEED ucnvassovucdete oe cueeuns 19, 33

First Nat'l Bank and Trust Co. v. Hollingsworth,

701 F. Supp. 701 (W.D. Ark. 1988) ................ 30

Gregory v. Ashcroft, 501 U.S. 452 (1991) ............. 15

Holmes Group Inc. v. Vornado Air Circulation Sys.,

REE ees EG RIESE GE 35

Holmes v. SIPC, 503 U.S. 258 (1992) ............. 22, 29

In re Fredeman Litig., 843 F.2d 821 (5* Cir. 1988) 19, 26, 35

In re Managed Care Litigation, 298 F. Supp. 2d 1259

(S.D. Fla. 2003) ......... Vented at duskcce cad oes 31

Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989) ..... 21

Jones v. United States, 529 U.S. 848 (2000) ............ 15

Kaushal v. State Bank of India, 556 F. Supp. 576

4 ANSTO Te TLY err rr 19, 32, 33

Klehr v. A. O. Smith Harvestore Products, Inc.,

of ER ey > at ene 25

Leocal v. Ashcroft, 125 S. Ct. 377 (2004) .............. 17

McCormick v. United States, 500 U.S. 257 (1991) ....... 17

McNally v. United States, 483 U.S. 350 (1987) ......... 17

Middlesex County Sewerage Auth. v. Nat'l Sea

Clammers Ass'n, 453 U.S. 1 (1981) ................ 21

ix

Minnesota v. Northern Sec. Co., 194 U.S. 48

Motorola Credit Corp. v. Uzan, 202 F. Supp. 2d

239 (S.D.N.Y. 2002), remanded 322 F.3d 130

es III nak Sag Ge anvs cedaeedasy 31

National Organization for Women, Inc. v. Scheidler,

765 F. Supp. 973 (N.D. Ill. 1991) .................. |

National Organization for Women, Inc. v. Scheidler,

Le TD Mo vk wkced dacdewecaccens i

National Organization for Women, Inc. v. Scheidler,

RT rrr rr ry erry Ty l

National Organization for Women, Inc. v. Scheidler,

PPP 6 icc vdtitearsconneeesegcusés 1,2

National Organization for Women, Inc. v. Scheidler,

897 F. Supp. 1047 (N.D. Ill. 1995) ............ 1, 3, 30

National Organization for Women, Inc. v. Scheidler,

poet Sf YB Br rere 1

National Organization for Women, Inc. v. Scheidler,

267 F.3d 687 (7" Cir. 2001) ................ 1, passim

National Organization for Women, Inc. v. Scheidler,

91 Fed. Appx. 510, 2004 U.S. App. LEXIS 4020

Ek ET i oc upeeuacdecbens ccc 1,4.5,9

x

National Organization for Women, Inc. v. Scheidler,

396 F.3d 807 (7® Cir. 2005) ................ 1, passim

Nat'l R.R. Passenger Corp. v. Nat'l Ass'n of R.R.

Passengers, 414 U.S. 453 (1974) 2... 0... cece 21

New York v. United States, 505 U.S. 144(1992) ........ 15

P.R-F., Inc. v. Philips Credit Corp.,

No. CIV 92-2266CCC, 1992 WL 385170

NN ae 30

Paine Lumber Co. v. Neal, 244 U.S. 459 (1917) ..... 23, 33

Raygor v. Regents of the Univ. of Minn.,

SE SEED. ws woodeccdtsadeys rsebedsedss 15

Religious Technology Center v. Wollersheim,

796 F.2d 1076 (9" Cir. 1986), cert. denied,

SRE SD teas 19, 27, 30, 33

Reves v. Ernst & Young, 507 U.S. 170 (1993) ....... 29, 35

Rotella v. Wood, 528 U.S. 549 (2000) .........0..005. 25

Russello v. United States, 464 U.S. 16 (1983) .... 20,21, 29

Scheidler v. National Organization for Women, Inc.,

CE. 0 tc8¥ deus innbeseveedusecse l

Scheidler v. National Organization for Women, Inc.,

Pe SERS euhedcusedssuscunpaees i, passim

xi

Sedima, S.P.R.L. v. Imrex, 741 F.2d 482 (2d Cir.

1984), rev'd, 473 U.S. 479 (1985) ........ 19, 29, 32, 33

Sedima §.P.R.L. v. Imrex Co., 473 U.S. 479

SRSA Seti 2 HGS SSS Bere pe ae 22, 25, 26, 27

Steel Co. v. Citizens for a Better Environment,

IN es © iy een ee en eee 34

Touche Ross & Co. v. Redington, 442 U.S. 560 (1979) ... 34

Transamerica Mortgage Advisors, Inc. v. Lewis,

I se 21

United States v. Bass, 404 U.S. 336 (1971) .........0.. 15

United States v. Enmons, 410 U.S. 396 (1973) ....... 16, 17

United States v. Franks, §11 F.2d 25 (6" Cir. 1975)... 14, 15

United States v. Kozminski, 487 U.S. 931 (1988) ........ 17

United States v. Staszcuk, 517 F.2d 53 (7" Cir.),

cert. denied, 423 U.S. 837(1975) ..........0.0005- 16

United States v. Yankowski, 184 F.3d 1071

I oth Gees Sea OO Na ae 15

University of Texas v. Camenisch, 451 U.S. 390 (1981)... 10

Vietnam Veterans of America, Inc. v. Guerdon Indus.,

Inc., 644 F. Supp. 951 (D. Del. 1986) .............. 31

xil

STATUTES, RULES, & LEGISLATIVE MATERIALS

CLE Fd De ee ere rr 22, 24, 33

bk. ae} ere lies he eee 24, 33

PPG EEE. he cdsivvcusecNessss cepudeus i, passim

SUA, OTE. e006 cp cteies en eenebeviacenmaress 2

PB CA BOF. k's owes b vivaed vanes decxeaends i, passim

TO, OU Ss ch ses vnetsrieniedste cin l

OU GUE cictnesccacdesccubewsaiacedenasees 2

DR EG (ba vncchoceacbandcubcacnceneaaeeney il

11S Come. Rec. 6992-96 (1968)... ccc ccccccecccnes 27

116 Come, Rec. 27, 73B-39 (IDTO) . wc evasccvecsececns 27

116 Cong. Rec. 35,227-28 (1970)... 2.6... eee eee 28

116 Cong. Rec. 35,346-47 (1970)... ccc eee eee 28

117 Cong. Rec. 46,386, 46,393 (1971) .... 2.0... ee eee. 29

118 Cong. Rec. 29,368, 29,370 (1972) .........-.0 00s 29

119 Cong. Rec. 10,317-19 (1973)... 2... eee eee eee 29

H.R. 19215, 91st Cong., 2d Sess. (1970) .............. 27

xiii

H.R. Rep. No. 1549, 91st Cong., 2d Sess. 58 (1970),

reprinted in 1970 U.S.C.C.A.N. 4007 ........20005. 28

U.S. Dep’t of Justice Criminal Resource Manual

2402 (available at www.usdoj.gov/usao/eousa/

foia_ reading room/usam/title9/crm02402/htm) ...... 15

Victims of Crime: Hearings on S. 16, S. 33, S. 750,

S. 1946, S. 2087, S. 2426, S. 2748, S. 2856, S. 2994,

and §. 2995 Before the Subcomm. on Criminal

Laws and procedures of the Senate Comm. on

the Judiciary, 92d Cong., Ist Sess. (1970-71) ........ 29

|

DECISIONS BELOW

Except where noted, all pertinent decisions in this case to date

are entitled National Organization for Women, Inc. v. Scheidler.

The district court’s original dismissal of the case appears at 765

F. Supp. 973 (N.D. Ill. 1991), and the Seventh Circuit’s

affirmance at 968 F.2d 612 (7" Cir. 1992). This Court’s partial

grant of certiorari appears at 508 U.S. 971 (1993), and

subsequent reversal at 510 U.S. 249 (1994), On remand, the

district court’s partial dismissal of the case appears- at 897 F.

Supp. 1047 (N.D. Ill. 1995), and the district court’s certification

of plaintiff classes appears at 172 F.R.D. 351 (N.D. Ill. 1997).

The Seventh Circuit’s decision affirming judgment for

respondents appears at 267 F.3d 687 (7" Cir. 2001). This

Court’s partial grant of certiorari appears sub nom. Scheidler v.

National Organization for Women, Inc., 535 U.S. 1016 (2002),

and this Court’s subsequent reversal appears sub nom. Scheidler

v. NOW, 537 U.S. 393 (2003). The Seventh Circuit’s initial ©

order on remand is unpublished but is available at 91 Fed. Appx.

510, 2004 U.S. App. LEXIS 4020 (7 Cir. Feb. 26, 2004). The

Seventh Circuit’s opinion upon the denial of rehearing appears

at 396 F.3d 807 (7® Cir. 2005).

JURISDICTION

The U.S. Court of Appeals for the Seventh Circuit rendered

its panel decision on remand on Feb. 26, 2004, and denied timely

petitions for rehearing and rehearing en banc on Jan. 28, 2005.

This Court has jurisdiction under 28 U.S.C. § 1254()).

STATUTORY PROVISIONS

The Appendix to the Petition for Certiorari contains the text

2

of the Hobbs Act, 18 U.S.C. § 1951 (OR Pet. App.’ 139a), and

excerpts of the federal Racketeer Influenced and Corrupt

Organizations (RICO) statute, 18 U.S.C. § 1964 (OR Pet. App.

140a-41a).

STATEMENT OF THE CASE

This is a civil RICO case, filed in 1986, in which the district

court’s jurisdiction was invoked, inter alia, under 28 U.S.C. §

1331 and 18 U.S.C. § 1964.

Respondents -- plaintiffs below -- are the National

Organization for Women, Inc. (NOW), the Delaware Women’s

Health Organization (DWHO), the Summit Women’s Health

Organization (Summit), and the classes they were certified to

represent. (The plaintiffs changed over the course of the

litigation. For convenience, this brief refers collectively to

“NOW.”) The defendants, including petitioner Operation

Rescue (OR), are pro-life activist individuals and organizations.

This nearly twenty-year-old case has a lengthy history, most

of which is immaterial to the questions presented here. See OR

Pet. App. 33a-35a (this Court’s recounting of history of litigation

as of 2003). For present purposes, it suffices to note the

following.

After considerable pretrial proceedings, including a trip to this

Court, see NOW v. Scheidler, 510 U.S. 249 (1994) (Scheidler J),

NOW went to trial solely on its federal RICO claim under 18

U.S.C. §§ 1962(c) and (d).

NOW’s theory of the case was that any physical obstruction

of abortion -- e.g., by a sit-in -- was extortion and thus a

predicate act of racketeering under RICO. See, e.g., Tr.’ 4327;

Unless otherwise noted, “OR Pet.” refers throughout this brief to the

petition for certiorari of Operation Rescue (OR) in No. 04-1352.

“Tr.” refers to the transcript of the jury trial.

3

id. at 5003-09. The district court had previously adopted this

view of extortion. E.g., NOW v. Scheidler, 897 F. Supp. 1047,

1072-74 (N.D. Ill. 1995).

In closing arguments, NOW argued for a jury finding of “no

less than 30 blockades [i.e., sit-ins],” Tr. 5005, arguing that each

sit-in was an act of predicate extortion, id. The jury apparently

found 25 sit-ins total.’ OR Pet. App. 143a-44a. NOW also

argued for at least five threats of physical violence, Tr. 5013-16,

and seven acts of physical violence, Tr. 5022-23, but the jury

found only four acts or threats total. OR Pet. App. 143a.

The jury rendered a verdict in favor of NOW and awarded

damages. OR Pet. App. 142a. The district court trebled those

damages pursuant to RICO. See id. at 98a. Moreover, the

district court, which had previously rejected petitioner’s

contention that RICO does not authorize private parties to sue

for injunctive relief, NOW v. Scheidler, 897 F. Supp. 1047,

1081-83 (N.D. Ill. 1995), then issued a nationwide injunction,

*E.g., Tr. 5003 (closing argument of plaintiffs) (“if the defendants

prevented women from getting any of those services [provided by abortion

businesses], then those interferences are RICO violations”); id. at 5005

(“Each and every one of those blockades that shut the clinics down for any

period of time was an illegal act of extortion under RICO”).

*The jury was instructed to treat each intentional sit-in at an abortion

business as both actual and attempted extortion. See Tr. 4945-48.

Accordingly, the jury found the same number of “acts or threats” as it did

“attempts” in each category (25 each for “extortion,” 23 each for Travel Act

violations). OR Pet. App. 143a-44a. Furthermore, the instructions for state

and federal extortion were virtually identical, Tr. 4944-47, with the

difference that the federal version had an interstate commerce element. Tr.

4945. Accordingly, the jury found a virtually identical number of violations

in the state and federal categories, with only slightly fewer in the federal

categories (presumably for lack of the interstate element). OR Pet. App.

143a-44a. Thus, a single sit-in would count simultaneously in Verdict Form

boxes 4(a), (b), (d), (f), and (g), except that 4(a), (f), and (g) also had

interstate travel or commerce elements. /d.

4

OR Pet. App. 82a-96a, and entered judgment for NOW, id. at

97a-102a.

The Seventh Circuit affirmed in all respects. Jd. at 103a.

The defendants filed two separate petitions for certiorari.

This Court granted review limited to two questions: (1) whether

RICO, 18 U.S.C. § 1964(c), authorizes private injunctive relief;

and, (2) whether the Hobbs Act criminalizes sit-ins and

obstructive demonstrations by political protesters. OR Pet. App.

32a, 138a.

After full briefing and oral argument, this Court reversed.

Scheidler v. NOW, 537 U.S. 393 (2003) (Scheidler IT) (OR Pet.

App. 32a-55a). The Court held that there was no Hobbs Act

violation here because the conduct at issue did not qualify as

“extortion.” OR Pet. App. 35a-46a. For the same reason, the

Court held that the other RICO predicates, namely extortion

under state law and under the federal Travel Act, were likewise

meritless. Jd. at 46a-48a. Accordingly, having eliminated all of

the RICO predicates, and thus the RICO judgment, this Court

held that the RICO injunction “must necessarily be vacated,” id.

at 48a. The Court said it “therefore need not address” the now-

moot question whether RICO authorizes private injunctive relief.

Id.

NOW did not seek rehearing in this Court.

On remand, the Seventh Circuit did not simply remand with

instructions to enter judgment for defendants. Instead, the court

below opined that this Court had overlooked four predicate acts,

and that those predicate acts might yet support the nationwide

injunction the district court had issued. /d. at 30a-3la. The

court below did not explain how it could reconcile that ruling

with this Court’s holding that “all of the predicate acts . . . must

be reversed,” that “the judgment that petitioners violated RICO

must also be reversed,” and that “the injunction must necessarily

be vacated.”

5

The Seventh Circuit relied for its holding upon the jury’s

finding (id. at 143a) of four unspecified “[a]cts or threats of

physical violence to any person or property.” (It is undisputed

that this finding refers to the Hobbs Act’s making it a crime to

commit or threaten “physical violence to any person or property

in furtherance of a plan or purpose to do anything in violation of

this section,” id. at 139a.°) According to the Seventh Circuit, the

question remained whether the Hobbs Act, 18 U.S.C. § 1951,

outlaws “‘physical violence’ apart from extortion and robbery,”

OR Pet. App. 29a. The court opined that stand-alone violence

possibly “constitutes an independent ground for violating the

Hobbs Act,” id. at 3la, and that the district court should

therefore determine if “the four acts or threats of physical

violence found by the jury” might “support the nationwide

injunction,” id.

Defendants petitioned for rehearing and rehearing en banc.

The Seventh Circuit denied both, the latter over three dissenting

votes. /d. at lan.*. In an opinion accompanying the denial of

rehearing, the panel adhered to its view that there were “four

more predicate acts” that this Court “made no ruling on,” id. at

6a, and that an injunction under RICO remains possible “based

on the record that has already been built,” id. at. 8a.

The Seventh Circuit spent considerable effort (id. at 8a-16a)

defending the “possibil[ity]” (id. at 8a) of reading the Hobbs Act

to prohibit any act or threat of “physical violence to any person

or property” which “in any way or degree . . . affects

*°NOW has pointed out, Opp. at 4, that the Jury Verdict Form (JVF) did

not explicitly link the violent acts or threats to extortion. But neither did the

JVF link the “violence” predicates to the Hobbs Act (as opposed to state

law). See OR Pet. App. 143a (JVF #4(e)). Yet NOW concedes the latter

link. £.g., Opp. at 4. Obviously, the JVF label was meant to be shorthand.

See OR Pet. at 5. No significance can be read into the JVF label’s omission

of the full text of the Hobbs Act.

6

commerce,” without any connection to robbery or extortion.

The court below nevertheless insisted it had not actually decided

the question whether stand-alone violence violates the Hobbs

Act, id. at 7a, declaring instead that “at the tail end of litigation

that has been running for almost twenty years, we prefer a wait-

and-see approach,” id. at 16a.

The Seventh Circuit did back away somewhat from its earlier

ruling, however. It now declined to endorse a nationwide

injunction, suggesting such would be an “abuse of discretion,”

id. at 16a, and that only some narrower injunction would be

permissible, id. at 17a. Importantly, the court below also

declared that it was “too late” for NOW to seek any damages,

and that the record could not be reopened for further

development. /d. at 7a-8a, 16a-17a.

Judge Manion, joined by Judge Kanne, wrote a dissenting

opinion. /d. at 17a-25a. In that dissent, Judge Manion

concluded that the panel’s “order directly conflicts with the

Supreme Court's opinion({,] . . . rests on an impermissible

reading of the Hobbs Act, and unnecessarily revives a case that

is already more than eighteen years old.” /d. at 20a.

SUMMARY OF ARGUMENT

The Seventh Circuit made three errors in the latest round of

this nearly twenty-year-old RICO case. Each of the lower

court’s three errors independently justifies reversal and remand

with instructions to enter judgment for petitioners on all claims.

First, the Seventh Circuit defied this Court’s mandate. This

Court had expressly held that a// of the RICO predicate acts must

be reversed, that the judgment for petitioners must be reversed,

and that the permanent injunction must be vacated. The Seventh

Circuit erroneously held that this Court had overlooked four

predicate acts which might yet support a RICO judgment and an

injunction for respondents. The Seventh Circuit identified no

5

other basis for prolonging this case, and in fact expressly forbade

any reopening of the record. Hence, the lower court’s

noncompliance with the mandate warrants reversal -- again --

with instructions to direct the entry of judgment for petitioners.

Second, the Seventh Circuit held that it was “not beyond the

realm of possibility” (OR Pet. App. !5a) that acts or threats of

violence to persons or property could qualify as Hobbs Act

violations (and thus as RICO predicates) even where (as here)

those acts were wholly unconnected to any robbery or extortion.

The unprecedented notion that the Hobbs Act prohibits all

violence that “affects commerce” cannot be squared with the text

of the Hobbs Act, with the rule requiring clear statements from

Congress to support such vast incursions of federal law into state

criminal provinces, or with the rule of lenity. Given the Seventh

Circuit's identification of no other basis for protracting this

litigation, and given the Seventh Circuit’s express foreclosure of

any retrial or further development of the record, rejection of this

wholly meritless “violence alone” theory also requires reversal

and remand with directions to enter judgment for petitioners.

Third, the sole remedy open to respondents under the decision

below -- injunctive relief -- is legally precluded. As the United

States argued in its amicus brief in this Court in Scheidler II,

RICO does not authorize private injunctive relief. See Br. for

the United States as Amicus Curiae, § 1, Scheidler I] (available

at www.usdoj.gov/osg/briefs/2002/3mer/ I ami/2001-1 1 18.mer.

ami.pdf). The text and history of RICO’s civil remedies

provision clearly demonstrate that private parties are not entitled

to sue for injunctive relief under RICO. The remedies section --

18 U.S.C. § 1964 -- confers unqualified authority on the federal

government to “institute proceedings” under RICO, but gives

private litigants only a right to sue for treble damages. RICO’s

treble damages provision is borrowed from indistinguishable

language in the federal Sherman and Clayton antitrust statutes,

8

language which this Court had already held does not authorize

private injunctive relief. While Congress adopted a separate

provision in the Clayton Act conferring injunctive remedies on

private litigants, Congress adopted no such provision for RICO.

On the contrary, the statutory history of RICO shows the

repeated failure of efforts to add precisely such a private

injunctive remedy.. Hence, the injunction in this case -- which

rests exclusively on RICO -- must be reversed. Since no other

relief sought by respondents remains an available option (the

Seventh Circuit expressly foreclosed any further pursuit of

damages, infra § IV), the legal unavailability of a private RICO

injunction also requires judgment for petitioners.

This gargantuan, meritless case has wasted nearly two

decades of the federal judiciary’s time and resources, not to

mention those of the parties and their counsel. It is well past

time for an end.

ARGUMENT

There are three major flaws in the decision below, each of

which independently provides a sufficient ground for reversal

and remand with instructions to direct the district court to enter

final judgment for petitioners.

I. THIS COURT’S DECISION IN SCHEIDLER II

DEFINITIVELY DISPOSED OF THIS CASE IN ITS

ENTIRETY.

This Court held in this case as follows:

Because ail of the predicate acts supporting the jury’s finding

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.

9

Scheidler v. NOW, 537 U.S. at 411 (OR Pet. App. 48a)

(emphasis added).

Despite this clear decree, the Seventh Circuit on remand

directed the district court to decide, in the first instance, whether

there are remaining predicate acts that “might independently

support the injunction,” OR Pet. App. 29a, or some narrower

injunction, id. at 16a-17a. This is direct defiance of this Court’s

ruling. The Seventh Circuit’s suggestion that the permanent

injunction could reissue on the basis of some of the predicates

the jury found after tria] back in 1998 conflicts both with this

Court’s express holding that “all of the predicate acts”

supporting a RICO violation and the “judgment” “must be

reversed,” and with this Court’s express direction that the

injunction “must necessarily be vacated.” OR Pet. App. 48a

(emphasis added). See also id. at 33a (“We . . . hold that our

determination with respect to extortion under the Hobbs Act

renders insufficient the other bases or predicate acts of

racketeering . . .”).

The Seventh Circuit’s ruling that the possibility of an

injunction under RICO remains a live issue in this case also

conflicts with this Court’s holding that it need not reach the

propriety of private civil injunctions under RICO precisely

because no such injunction was sustainable here. OR Pet. App.

33a, 48a. This Court had originally granted certiorari to decide

two questions. See id. at 32a. One question was whether private

injunctive relief is available under RICO. /d. This Court did not

answer that question only because its holding on the other

question -- the merits of NOW’s federal extortion predicates --

precluded any basis for such an injunction in the first place, id.

at 33a, 48a. Thus, the injunction issue became moot because,

regardless of whether RICO authorized such relief in the

abstract, there was no RICO judgment left that could serve as a

basis for an injunction in this case. Id. The Seventh Circuit's

10

ruling that an injunction may nevertheless issue based on the

prior jury verdict is irreconcilable with this Court’s holding that

the injunction issue no longer remains in the case.

Finally, the Seventh Circuit’s remand order suffers an

additional fatal flaw: it ignores the fact that the judgment -- the

basis for the permanent injunction -- “must be reversed.” OR

Pet. App. 48a. As this Court unequivocally stated, “We further

hold that our determination with respect to extortion under the

Hobbs Act renders insufficient the other bases or predicate acts

of racketeering supporting the jury’s conclusion that petitioners

violated RICO.” Jd. at 33a. A permanent injunction can only

issue when a party finally prevails on the merits and a final

judgment is entered. Amoco Production Co. v. Village of

Gambell, 480 U.S. 531, 546 n.12 (1987) (citing University of

Texas v. Camenisch, 451 U.S. 390, 392 (1981)). Here, NOW

has lost on all claims, and there is no final judgment in its favor.

Even if NOW were to prevail in this Court, NOW would need

to pursue a retrial limited to their theory of predicate Hobbs Act

“violence.” A retrial order, of course, is not a final victory on

the merits, and thus it cannot support a permanent injunction.

But more importantly, even the retrial option is no longer open

to NOW: the Seventh Circuit in this case directed that there be

no retrial, OR Pet. App. 7a-8a, 16a-17a, and NOW has not

cross-petitioned from that ruling.

The jury’s verdict of liability under RICO rested on a series

of separate findings. See Jury Verdict Form (JVF) (OR Pet.

App. 142a). Even if NOW were correct that this Court did not

overturn 100% of the predicates, NOW concedes that at least

more than 96% of the predicates (117 of 121,’ according to

"The “121” figure exaggerates the number of predicates, as it reflects

quintuple counting. Supra note 5. NOW has conceded this. Brief of

Respondents (Nos. 01-1118 & 01-1119) at3 &n4, 35 &n45.

ll

NOW) were reversed.’ Thus, it is impossible to conclude that

the four supposedly remaining predicates would necessarily have

sufficed to sustain the other essential jury findings, for example,

of a RICO “pattern” (JVF #7), an effect on interstate commerce

(JVF #8), or proximate causation of injury to the plaintiffs (IVF

#9). See also Scheidler II, 537 U.S. at 401 n.S (OR Pet. App.

37a n.5) (even a single faulty theory of RICO liability in the jury

instructions would preclude affirmance of the judgment); OR

Pet. App. 23a (dissent from denial of rehearing) (noting that

current record cannot support “affecting commerce” element of

Hobbs Act).

In short, even under NOW’s theory of the case, the judgment

must be overturned, leaving no basis for the permanent

injunction. The Seventh Circuit’s failure even to mention this,

especially given this Court’s clear directive that the verdict and

judgment “must be reversed,” is truly remarkable.

*Tellingly, in its merits briefing before this Court in Scheidler 1], NOW

gave every indication that the four “violence” predicates were part and

parcel of its extortion theory. In its answering brief, NOW expressly

referred to “121” (not 117) RICO predicates, i.e., including the four

“violence” predicates. E.g., 01-1118 & 01-1119 Br. of Respondents at 1,

3 &n.4. In fact, NOW highlighted the alleged violent conduct. E.g., id. at

2 &n.3, 11-12, 29, 50. Moreover, NOW argued that “[bJecause the Hobbs

Act requires the obtaining of property,” NOW had “relied on/y on wrongful

acts designed to make Respondents [NOW et a/.] cede centrol of their

property to Petitioners, not on crimes that entailed no demand to surrender

property.” Id. at 9 (emphasis added). NOW further argued that “ail of the

acts that supported the jury’s findings as to Hobbs Act violations also

supported its findings as to state /aw violations,” id. at 35 (emphasis added).

See also id. at 3 n.4 (“each of the Hobbs Act violations were also the basis

for a finding as to state extortion laws”) (emphasis added). The only state

law predicates NOW claimed were alleged extortion, OR Pet. App. 34a,

46a, 106a, 143a (JVF #4(b)). Thus, NOW conceded that its Hobbs Act

predicates a// hinged on extortion.

12

Il. THE HOBBS ACT DOES NOT PROHIBIT

VIOLENCE WHOLLY APART FROM ANY

ROBBERY OR EXTORTION.

According to NOW, the Hobbs Act, 18 U.S.C. § 1951],

which proscribes robbery and extortion (neither of which is

present here), also prohibits acts or threats of physical violence

to any person or property independent of any robbery or

extortion. The Seventh Circuit held that this was a “possible”

reading of the Hobbs Act that could be adopted “without undue

strain,” OR Pet. App. 8a-9a. It is not.

A. The Text of the Hobbs Act Precludes a “Violence

Alone” Construction.

NOW’s construction of the Hobbs Act flies in the face of the

plain text of the statute. The Hobbs Act, 18 U.S.C. § 1951(a)

(OR Pet. App. 139a) (emphasis added), provides as follows:

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 under this

title or imprisoned not more than twenty years, or both.

Plainly, any crime under the Hobbs Act relates, either expressly

or by cross-reference, to robbery or extortion. By contrast,

NOW’s proposed construction, which would create a new

offense of “violence” which “affects commerce,” lacks

grammatical parallelism, is awkward, and is incapable of

coherent parsing. ,

The Seventh Circuit opined conclusorily that the “violence-in-

furtherance” prong could, “without undue strain,” OR Pet. App.

9a, grammatically be read not to require any link to robbery or

13

extortion. Neither that court, nor respondents, however, have

offered an alternative parsing of the text that would support such

a construction, despite petitioner OR’s repeated insistence that

no such parsing is available.

The Hobbs Act proscribes acts or threats of violence only “in

furtherance of a plan or purpose to do anything in violation of

this section,” id. “This section,” in tum, prohibits

“obstruct[ing], delay[ing], or affect[ing]” commerce or the

movement of any thing in commerce “by robbery or extortion,”

id. (emphasis added).

NOW disagrees, but -- like the Seventh Circuit -- NOW

steadfastly refuses to explain just what, under its view, “a

violation of this section” means. To read a “violation” to mean

merely “affecting commerce” would be perverse. The Hobbs

Act does not proscribe merely “affecting commerce.” (If it did,

most business operations would violate the Hobbs Act.) To read

a “violation” to mean “affecting commerce by acts or threats of

violence,” meanwhile, would be hopelessly circular. The Hobbs

Act would, under this reading, forbid “affect{ing] commerce .. .

by . . . physical violence . . . in furtherance of a plan or purpose

to [affect commerce by physical violence in furtherance of a plan

or purpose to affect commerce by physical violence in

furtherance etc. ad infinitum).” That is not statutory

interpretation; it is a skipping record.

NOW’s faulty reading of the Hobbs Act excises the statutory

text limiting the Hobbs act to robbery or extortion. Thus, NOW

*The “violence-in-furtherance” provision of the Hobbs Act covers, for

example, the subordinate “enforcer” who, while not himself extorting

anything, harms people or property when the extortionist does not obtain the

desired payment from the victim. It also may be used to bring an additional

criminal count, as where a defendant who has already committed the

completed offense of extortion independently of any violence, e.g., “under

color of official right,” also threatens violence to person or property.

14

would read the Hobbs Act to make a federal crime of any act or

threat of physical violence, to any person or property, whenever

that act or threat “in any way or degree . . . affects commerce or

the movement of any article or commodity in commerce,” §

1951(a). This would convert the Hobbs Act into a

breathtakingly broad general federal “anti-violence” statute,

without any clear statement that Congress intended such an

outcome. See infra § II(C).

As the amici States persuasively argue, see Brief of the States

of Alabama et al. (States Br.), NOW’s proposed reading of the

Hobbs Act is not only grammatically implausible, id. § 1, and

irreconcilable with the statutory evolution of the Hobbs Act, id.

§ II, it is also untenable for other reasons. For one thing, reading

the Hobbs Act to criminalize all violence that “affects

commerce” would render superfluous numerous other federal

statutes that address violence to persons or property in a more

tailored manner. /d. § III (listing examples). For another,

reading the Hobbs Act as a broad anti-violence statute would

dramatically expand the scope of RICO, in conflict with the

deliberate efforts of Congress to limit RICO’s scope by

“numerating selected predicate offenses, id. And as if that were

not enough, construing the Hobbs Act as a general anti-violence

statute would dramatically alter the federal-state balance, without

any clear statement from Congress of an intent to do so. Jd. §

IV. See infra § I(C).

B. Both of the Other Circuits to Address the Question,

as Well as the Department of Justice, Reject a

“Violence Alone” Construction.

NOW’s argument was squarely rejected in the Sixth and

Ninth Circuits in the only cases to assess the merits of this

unlikely reading of the Hobbs Act. United States v. Franks, 511

F.2d 25, 31 (6° Cir. 1975) (“The statute’s language and

>

15

legislative history require that the violence be in furtherance of

a plan or purpose to obstruct, delay, or affect commerce by

extortion or robbery”) (emphasis added; footnote omitted);

United States v. Yankowski, 184 F.3d 1071 (9" Cir. 1999)

(holding violence-alone theory “untenable in light of the clear

language of the Hobbs Act,” id. at 1072).

The Department of Justice also formally disavows NOW’s

proposed reading of the Hobbs Act. The Department of Justice

takes the position that there can be no Hobbs Act-“violence”

‘crime absent a link to extortion or robbery. See U.S. Dep’t of

Justice Criminal Resource Manual 2402 (Hobbs Act --

Generally) (“The statutory prohibition of ‘physical violence to

any person or property in furtherance of a plan or purpose to do

anything in violation of this section’ is confined to violence for

the purpose of committing robbery or extortion”) (citing Franks)

(available at www.usdoj.gov/usao/eousa/foia_reading room/us

am/title9/crm02402/htm).

There is no reason for this Court to reach a contrary

conclusion.

C. Federalism Concerns Preclude a “Violence Alone”

Construction.

This Court is loath to interpret federal statutes in ways that

“upset the usual balance of federal and state powers.” New York

v. United States, 505 U.S. 144, 170 (1992). See generally

Gregory v. Ashcroft, 501 U.S. 452 (1991). “[WJe will not be

quick to assume that Congress has meant to effect a significant

change in the sensitive relation between federal and state

criminal jurisdiction.” United States v. Bass, 404 U.S. 336, 349

(1971). Accord Jones v. United States, 529 U.S. 848, 858

(2000); Raygor v. Regents of the Univ. of Minn., 534 U.S. 533,

543-44 (2002). This rule militates against turning the Hobbs Act

into a device for federalizing such traditional state offenses as

16

assault, battery, and destruction of private property. See United

States v. Staszcuk, 517 F.2d 53, 55 (7" Cir.) (en banc) (per

Stevens, J.) (the “extraordinary growth of federal criminal

litigation poses a serious threat to the quality of federal justice;

moreover, this growth may not only reflect but contribute to the

continuing transfer of power from the several states to the

national government. ... [W]e have no desire to accelerate this

trend unnecessarily”), cert. denied, 423 U.S. 837 (1975).

This Court expressed the same caution in refusing to apply

the Hobbs Act to unlawful conduct incident to a labor strike:

[It] would require statutory language much more explicit than

that before us here to lead to the conclusion that Congress

intended to put the Federal Government in the business of

policing the orderly conduct of strikes. Neither the language

of the Hobbs Act nor its legislative history can justify the

conclusion that Congress intended to work such an

extraordinary change in federal labor law or such an

unprecedented incursion imio the criminal jurisdiction of the

States.

United States v. Enmons, 410 U.S. 396, 411 (1973) (citations

omitted).

A construction of the Hobbs Act that would make a federal

crime out of any “violence” that “affects commerce” flies

directly in the face of this established norm of statutory

interpretation.

D. The Rule of Lenity Precludes a “Violence Alone”

Construction.

Even if the question were close and debatable (which it is

not), the rule of lenity would foreclose NOW’s astonishingly

expansive and unprecedented misreading of the Hobbs Act.

Any “uncertainty concerning the ambit of criminal statutes

17

should be resolved in favor of lenity.” United States v.

Kozminski, 487 U.S. 931, 952 (1988) (and cases cited). Asa

criminal law, the Hobbs Act is subject to this rule of strict

construction. United States v. Enmons, 410 U.S. 396, 411

(1973); McCormick v. United States, 500 U.S. 257, 272-73

(1991); Scheidler v. NOW, 537 U.S. 393, 409 (2003) (OR Pet.

App. 46a). Although the present case involves a civil suit, the

Hobbs Act

is a criminal statute, and it has both criminal and noncriminal

applications. Because we must interpret the statute

consistently, whether we encounter its application in a

criminal or noncriminal context, the rule of lenity applies.

Leocai v. Ashcroft, 125 S. Ct. 377, 384 n.8 (2004). Moreover,

as a RICO predicate, the Hobbs Act is a particularly apt subject

for the rule of lenity:

[W]e have instructed that ambiguity concerning the ambit of

criminal statutes should be resolved in favor of lenity. . . .

This interpretive guide is especially appropriate in construing

... apredicate offense under RICO... .

Cleveland v. United States, 531 U.S. 12, 25 (2000) (internal

quotation marks and citations omitted).

“The Court has often stated 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.” McNally v. United States, 483 U.S. 350,

359-60 (1987) (citations omitted). This rule serves many

important purposes: “to promote fair notice to those subject to

criminal law, to minimize the risk of selective or arbitrary

enforcement, and to maintain the proper balance between

Congress, prosecutors, and courts,” Kozminski, 487 U.S. at 952.

To accept NOW’s unprecedented expansion of the Hobbs Act

18

would be to stand the rule of lenity on its head, as this would

require both creating ambiguity where the pertinent statutory

text is clear, and then resolving that ambiguity in favor of an

extremely broad interpretation. This Court must therefore reject

petitioners’ novel and highly strained construction of the Hobbs

Act.'®

Il. RICO DOES NOT AUTHORIZE PRIVATE

INJUNCTIVE RELIEF.

RICO does not authorize injunctive relief in civil suits

brought by private parties. The United States reads the statute

in the same manner as petitioners do, as the Solicitor General

made clear in the brief that the federal government filed in this

Court in Scheidler IJ. See Brief for United States as Amicus

Curiae (U.S. Br.), Nos. 01-1118 & 01-1119 (Scheidler IT) (supra

p. 7) (discussed infra § III(D)).

In RICO, Congress employed language taken almost word-

for-word from antitrust law, language which this Court had

already held not to authorize private injunctive relief. Congress

eschewed other language, in antitrust law, expressly conferring

private injunctive remedies. The exclusion of private injunctive

relief from civil RICO could scarcely be clearer.

The decision below is aberrant and erroneous. The virtually

unanimous conclusion of the lower courts analyzing the issue --

that RICO does not authorize injunctive relief for private parties

'°As the foregoing discussion demonstrates, there is no need whatsoever

for recourse to the legislative history of the Hobbs Act as an interpretive

tool. It nevertheless bears mention that the pertinent history unequivocably

confirms that Congress never intended the Hobbs Act to prohibit violence

unconnected either to robbery or to extortion. See Brief for Petitioners

Scheidler er al. § II(A).

19

-- is clearly correct.''

A. RICO’s Statutory Text Gives the Attorney General

Exclusive Authority to Seek Injunctive Relief.

1. The text and structure of RICO’s remedial

provisions preclude private injunctive relief.

The remedies provision of RICO (18 U.S.C. § 1964), OR Pet.

App. 140a-41a,'* contains three subsections addressing civil

relief. None gives injunctive relief to private parties.

Subsection (a) confers jurisdiction upon the district courts and ~

''Many lower federal courts have addressed this question. In Religious

Technology Center v. Wollersheim, 796 F.2d 1076 (9" Cir. 1986), cert.

denied, 479 U.S. 1103 (1987), the Ninth Circuit exhaustively analyzed the

text and history of the remedies section of RICO, the pertinent precedents,

and the competing legal arguments, see Wollersheim, 796 F.2d at 1080-88.

The Wollersheim court concluded that “the legislative history and statutory

language suggest overwhelmingly that no private equitable action should be

implied under civil RICO.” /d. at 1088 (footnote omitted). Moreover,

almost no court since Wollersheim -- other than in this case -- has held that

private parties can obtain injunctive relief under RICO. Even prior to

Wollersheim, only one district court so held. See infra note 18. Every other

court to address the issue (except in this case and two other district court

cases, see infra note 18) has either rejected private equitable relief under

RICO, expressed serious doubts about such relief, or declined to decide the

question. See 01-1119 Pet. at 11-12 & nn. 16-19. (For an especially

thorough analysis of the issue, see Wollersheim; In re Fredeman Litig., 843

F.2d 821, 828-30 (5" Cir. 1988); Sedima, S.P.R.L. v. Imrex, 741 F.2d 482,

489 n.20 (2d Cir. 1984), rev'd on other grounds, 473 U.S. 479 (1985);

Kaushal v. State Bank of India, 556 F. Supp. 576, 581-84 (N.D. Ill. 1983);

DeMent v. Abbott Capital Corp., 589 F. Supp. 1378, 1381-83 (N.D. Ill.

1984).)

"The version set forth in OR’s Petition Appendix was effective at the time

the present lawsuit was filed. In 1995, Congress amended subsection (c) in

a way irrelevant here. The 1995 amendment does not apply to actions, like

the present suit, commenced prior to December 22, 1995.

20

authorizes broad equitable remedies. This provision, however,

does not empower private litigants to seek the injunctive relief

authorized.

Subsection (6) authorizes the U.S. Attorney General to

“institute proceedings under this section.” This unqualified

authorization to “institute proceedings” plainly authorizes the

federal government to pursue the full range of remedies for

which subsection (a) creates jurisdiction.

Subsection (c) then specifies that “[a]ny person injured in his

business or property . . . may sue therefor . . . and shall recover

threefold the damages he sustains ... .” Unlike subsection (b),

there is no blanket authorization to “institute proceedings”;

instead, using distinct language, the provision specifies a night to

sue and a remedy, namely, treble damages. This Court's

observation in Russello v. United States, 464 U.S. 16 (1983),

therefore applies here:

Where Congress includes particular language in one section

of a statute, but omits it in another section of the same Act, it

is generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.

Id. at 23 (internal quotation and editing marks omitted). Had

Congress intended to confer on private parties an unqualified

right to “institute proceedings,” then -- in the words of Russello

-- “it presumably would have done so expressly as it did in the

immediate [preceding] subsection,” id.

Subsection (b) and (c) are decidedly nor parallel; hence,

contrary to the court below, no “parity of reasoning,” OR Pet.

App. | 1 la, leads to the conclusion that private parties can claim

the universe of relief authorized under subsection (a). On the

contrary, as in Russello, this Court should

refrain from concluding here that the differing language in the

two subsections has the same meaning in each. We would

21

not presume to ascribe this difference to a simple mistake in

draftsmanship.

464 U.S. at 23. Indeed, were the contrary true, private parties

would be entitled to sue, not just for treble damages and

injunctions, but also for all the other equitable relief available to

the Attorney General, including dissolution » enterprises. See

§ 1964(a).

The statutory text of RICO therefore plainly indicates that

Congress did not authorize private injunctive relief:

A frequently stated principle of statutory construction is that

when legislation expressly provides a particular remedy or

remedies, courts should not expand the coverage of the statute

to subsume other remedies.

Nat'l R.R. Passenger Corp. v. Nat'l Ass'n of R.R. Passengers,

414 U.S. 453, 458 (1974); accord Jett v. Dallas Indep. Sch.

Dist., 491 U.S. 701, 731-32 (1989). For example, this Court has

held that a statute expressly authorizing private citizens to sue

for injunctions would not be construed as implying a private

right of damages. Middlesex County Sewerage Auth. v. Nat'l

Sea Clammers Ass'n, 453 U.S. 1, i4-15 (1981). This rule makes

perfect sense: “In the absence of strong indicia of a contrary

congressional intent, we are compelled to conclude that

Congress provided precisely the remedies it considered

appropriate.” Jd. at 15. Accord Transamerica Mortgage

Advisors, Inc. v. Lewis, 444 U.S. 11, 19 (1979) (“it is an

elemental canon of statutory construction that where a statute

expressly provides a particular remedy or remedies, a court must

be chary of reading others into it”); City of Rancho Palos Verdes

v. Abrams, 125 S. Ct. 1453, 1458 (2005) (“the express provision

of one method of enforcing a substantive rule suggests that

Congress intended to preclude others”) (internal editing marks

and citation omitted).

22

2. The remedial provisions of RICO were

borrowed directly from remedial provisions of

antitrust statutes that do not authorize private

injunctive relief.

The conclusion that private parties cannot obtain injunctive

relief under RICO is confirmed beyond all doubt by reference to

the antitrust model from which Congress borrowed the remedial

provisions of RICO. Congress borrowed, for RICO, precisely

the remedial language this Court had held not to authorize

private injunctive relief, and declined to borrow a separate

provision of antitrust law expressly conferring private injunctive

remedies.

With RICO, Congress employed the “use of an antitrust

model for the development of remedies” against crime. Agency

Holding Corp. v. Malley-Duff & Assocs., 483 U.S. 143, 151

(1987). The “clearest current in the legislative history of RICO

is the reliance on the [antitrust] model.” /d. (internal quotation

marks and citation omitted). Accord Sedima, S.P.R.L. v. Imrex

Co., 473 U.S. 479, 489 (1985). It follows that the same

language held not to authorize injunctive relief in an antitrust

statute does not authorize injunctive relief under RICO:

We may fairly credit the 91" Congress, which enacted RICO,

with knowing the interpretation federal courts had given the

words earlier Congresses had used first in § 7 of the Sherman

Act, and later in the Clayton Act’s § 4 (15 U.S.C. § 15). ...

It used the same words, and we can only assume it intended

them to have the same meaning that courts had already given

them.

Holmes v. SIPC, 503 U.S. 258, 268 (1992) (citations omitted).

This Court construed the statutory language in question, in the

Sherman antitrust statute, not to authorize private injunctive

23

relief. See Minnesota v. Northern Sec. Co., 194 U.S. 48, 70-71

(1904) (section 7 of antitrust statute does not authorize private

suits for equitable relief).

We cannot suppose it was intended that the enforcement of

the act should depend in any degree upon original suits in

equity instituted by the States or by individuals to prevent

violations of its provisions.

Id. Accord Paine Lumber Co. v. Neal, 244 U.S. 459, 471

(1917). The parallels to RICO are striking. Section 7 of the

Sherman antitrust statute provided:

“Any person who shall be injured in his business or property

. . . by reason of anything forbidden or declared to be

unlawful by this act may sue therefor . . . and shall recover

threefold the damages by him sustained, and the costs of suit,

including a reasonable attorney’s fee.”

194 U.S. at 68 (quoting statute) (emphasis added). The language

of RICO § 1964(c) is virtually word-for-word the same:

Any person injured in his business or property by reason of

a violation of section 1962 of this chapter may sue therefor

in any appropriate United States district court and shail

recover threefold the damages he sustains and the cost of the

suit, including a reasonable attorney’s fee.

OR Pet. App. 140a-41a (emphasis added).

Like RICO § 1964, the Anti-Trust Act construed in Northern

Securities contained a subsection conferring on federal courts

“jurisdiction to prevent and restrain violations of this act”

(Section 4), see 194 U.S. at 67. The existence of a similar grant

of equity jurisdiction in RICO § 1964(a) (OR Pet. App. 140a)

only bolsters the statutory parallel.

After Northern Securities, Congress in 1914 enacted the

24

Clayton Antitrust Act. That statute contains the following treble

damages language:

[A] ny person who shall be injured in his business or property

by reason of anything forbidden in the antitrust laws may sue

therefor .. . and shall recover threefold the damages by him

sustained, and the cost of suit, including a reasonable

attorney’s fee... .

15 U.S.C. §15(a) (emphasis added). This provision is borrowed

straight from Section 7 of the Sherman Act -- i.e., the provision

held not to authorize private injunctive relief. In addition to the

treble damages provision, Congress added a separate provision

authorizing private parties to sue for injunctions:

Any person . . . shall be entitled to sue for and have injunctive

relief . . . against threatened loss or damage by a violation of

15 U.S.C. § 26. See California v. American Stores Co., 494

U.S. 271, 287 (1990) (provision “filled a gap in the Sherman Act

by authorizing equitable relief in private actions”). This express

conferral of private injunctive remedies has no parallel in RICO.

In sum, when enacting RICO § 1964, Congress borrowed the

treble damages language of the Sherman and Clayton Acts, but

did not borrow the private injunctive remedy language of the

Clayton Act. The conclusion is inescapable: RICO does not

authorize private injunctive relief.'’

"The Seventh Circuit declared that because this Court “regularly treats the

remedial sections of RICO and the Ciayton Act identically,” OR Pet. App.

117a, RICO should be read as authorizing private injunctive relief

“regardless of superficial differences in language,” id To state this

argument is to refute it. The existence of an express grant of private

injunctive relief in the Clayton Act, and its absence in RICO, is not a

“superficial” difference in language.

25

* * *

This Court appears already to have acknowledged that private

injunctive relief is not available under RICO. This Court has

consistently described RICO § 1964(c) as authorizing a “private

treble-damages action,” Sedima, 473 U.S. at 486. Accord id. at

481, 487-88, 490, 493; Agency Holding Corp., 483 U.S. at 151-

52; Klehr v. A.O. Smith Harvestore Products, Inc.,521 U.S. 179,

183 (1997); Rotella v. Wood, 528 U.S. 549, 551 (2000); Beck v.

Prupis, 529 U.S. 494, 496 & n.1 (2000) (describing RICO

provisions for criminal penalties and civil suits, and separately

noting that RICO “authorizes the Government to bring civil

actions to ‘prevent and restrain’ violations”) (emphasis added).

The text of RICO confirms this Court’s consistent understanding

of civil RICO.

NOW conceded in Scheidler IJ that § 1964(c), the private

remedies provision of RICO, does not authorize injunctive relief.

01-1118 & 01-1119 Opp. at 9 (“RICO’s only source of

permanent injunctions is § 1964(a)”) (emphasis added). NOW

therefore hangs its entire case for injunctive relief on § 1964(a).

This Court has already noted, however, that § 1964(a) is part of

remedial provisions “limited to injunctive actions by the United

States,” Sedima, 473 U.S. at 486-87 (1985). Despite Sedima,

NOW argues that because § 1964(a) does not expressly exclude

private parties, it must be read to include them. 01-1118 & 01-

1119 Opp. at 9-10. This is illogical. Section 1964(a) does not,

by its terms, authorize any party to bring a civil RICO action,

including the federal government. The United States can sue for

injunctive relief under RICO only because a separate subsection

-- § 1964(b) -- gives the Attorney General authority to “institute

proceedings under this section.” By contrast, the private treble-

damages provision, § 1964(c) -- the only subsection to authorize

private relief -- contains no blanket authorization for private

parties to “institute proceedings.” That subsection only entitles

26

persons injured in their business or property to “sue therefor . . .

and recover threefold the damages,” § 1964(c). This subsection

does not reference § 1964(a) or even “this section,” but instead,

as this Court has always understood, provides a distinct private

damages remedy.

B. RICO’s Legislative History Shows Congress

Repeatedly and Deliberately Declined to Authorize

Private Injunctive Relief.

The legislative history of RICO confirms, indeed compels, the

conclusion already drawn from the text of RICO: private

injunctive relief is not available under RICO.

1. Congress specifically selected treble damagcs as

the exclusive remedy for private RICO suits.

RICO was enacted as Title IX of the Organized Crime

Control Act of 1970. Sedima, 473 U.S. at 486. The Senate,

which passed the legislation first, did not provide for private

party suits under RICO.

The civil remedies in the bill passed by the Senate, S 30, were

limited to injunctive actions by the United States and became

§§ 1964(a), (b), and (d).

473 U.S. at 486-87. The “private treble-damages action” was

added, later, in the House of Representatives. /d. at 487-88. The

Senate then adopted the bill as amended in the House. /d. at

488. As the Fifth Circuit explained, “Section 1964(c), providing

the treble damage remedy, then becomes a branch grafted onto

the already-completed trunk of the statute.” Fredeman, 843 F.2d

at 829 (footnote omitted).

This “grafted-on branch” very specifically authorized “a

private treble-damages action,” Sedima, 473 U.S. at 487, as a

supplement to federal government enforcement of the statute,

27

and as a remedy for those wronged by organized crime, id. See

also Agency Holding Corp., 483 U.S. at 151 (RICO’s civil

enforcement provision was designed “to remedy economic injury

by providing for the recovery of treble damages, costs, and

attorney's fees”); id. (“the mechanism chosen to reach the

objective in . . . RICO is the carrot of treble damages”). The

selection of a treble damages remedy, and only a treble damages

remedy, was plainly a deliberate choice by Congress.

2. Congress repeatedly considered, but failed to

adopt, a private injunctive remedy under RICO.

That Congress deliberately limited private civil relief to treble

damages (and costs and attorney fees) appears even more clearly

from the rejection by Congress of proposals to authorize private

injunctive relief:

{Ijn considering civil RICO, Congress was repeatedly

presented with the opportunity expressly to include a

provision permitting private plaintiffs to secure injunctive

relief. On each occasion, Congress rejected the addition of

any such provision.

Wollersheim, 796 F.2d at 1086 (emphasis in original).

RICO predecessor legislation in the Senate and in the House

explicitly allowed for private party injunctive relief. Jd. at 1084.

See 115 Cong. Rec. 6,992-96 (1969) (discussing predecessor

Senate bills); H.R. 19215, 91st Cong., 2d Sess. (1970)

(predecessor House bill). In fact, Representative Steiger, who

proposed the addition of the treble damages provision, Sedima,

473 U.S. at 487, made that proposal in an amendment which also

included a provision for private injunctive relief. See 116 Cong.

Rec. 27,738-39 (1970) (Steiger Amendment, proposed

subsection (c), provided: “Any person may institute proceeding

under subsection (a) [of § 1964]. . . [and] relief shall be granted

28

in conformity with the principles which govern the granting of

injunctive relief... .”). The House Committee on the Judiciary,

however, adopted only the private treble damages remedy, not

the private injunctive remedy. See H.R. Rep. No. 1549, 91st

Cong., 2d Sess. 58 (1970), reprinted in 1970 U.S.C.C.A.N.

4007, 4034. Rep. Steiger, while “extremely pleased . . . that the

Judiciary Committee has approved . . . a provision authorizing

treble damage actions by private persons,” 116 Cong. Rec.

35,227 (1970), nevertheless lamented that the committee version

did “not do the whole job,” id. In particular, Rep. Steiger

bemoaned the fact that “the Judiciary Committee version . . .

fails to provide . . . equitable relief in suits brought by private

citizens.” Jd. at 35,228.

On the floor of the House, Rep. Steiger again “offered an

amendment that would have allowed private injunctive actions”

under RICO, Sedima, 473 U.S. at 487. See 116 Cong. Rec.

35,228, 35,346 (1970). “The proposal was greeted with some

hostility . . . and Steiger withdrew it without a vote being taken.”

Sedima, 473 U.S. at 487-88. See 116 Cong. Rec. 35,346-47

(1970). As this Court has explained, the reason for this hostility,

for the withdrawal of the proposal, and for the reference of the

proposal instead to a committee, was precisely because the

proposed amendment “included yet another civil remedy,”

Agency Holding Corp., 483 U.S. at 154, namely, private

injunctive relief. See 116 Cong. Rec. 35,346 (1970) (statement

of Rep. Poff) (Steiger amendment “does offer an additional civil

remedy” and “prudence would dictate that the Judiciary

Committee very carefully explore the potential consequences

that this new remedy might have”).

Congress failed to enact legislation, proposed the very next

term after the enactment of RICO, which was designed “to

broaden even further the remedies available under RICO. In

particular, it would have . . . permitted private actions for

29

injunctive relief.” Agency Holding Corp., 483 U.S. at 155."

In 1973, Congress again considered, and failed to enact, a bill

to amend RICO by adding private injunctive relief. See 119

Cong. Rec. 10,317-19 (1973) (“Civil Remedies for Victims of

Racketeering Activity and Theft Act of 1973”).

In sum, Congress repeatedly declined to authorize private

- injunctive relief under RICO. See Russello, 464 U.S. at 23-24

(citing “evolution of [RICO’s] statutory provisions” as aid to

statutory construction, and adding, “[w]here Congress includes

[certain] language in an earlier version of the bill but deletes it

prior to enactment, it may be presumed that the [omitted text]

was not intended”).'°

“See also Sedima, 741 F.2d at 489 n.20; 117 Cong. Rec. 46,386 (1971)

(statement of Sen. McClellan) (Title IV of “Victims of Crime Act of 1972”

would “authorize private injunctive relief from racketeering activity”); id.

at 46,393 (text of bill proposing to amend RICO to add private injunctive

remedy); Victims of Crime: Hearings on S. 16, S. 33, S. 750, S. 1946, S.

2087, S. 2426, S. 2748, S. 2856, S. 2994, and S. 2995 Before the Subcomm.

on Criminal Laws and Procedures of the Senate Comm. on the Judiciary,

92d Cong., Ist Sess. 3 (1970-1971) (text of proposed bill providing for

private injunctive relief under RICO); id. at 51 (same); id. at 158 (statement

of Richard Velde, Associate Administrator, Law Enforcement Assistance

Admunistraton) (proposed legislation “would expand the available civil

remedies. Section 1964 [of RICO] would be amended to permit any person

to institute a civil proceeding to prevent or restrain violations .... Now

only the United States can institute injunctive proceedings”); 118 Cong.

Rec. 29,368 (1972) (text of “Civil Remedies for Victims of Racketeering

Activity and Theft Act of 1972” proposing inter alia to amend RICO to add

private injunctive relief); id. at 29,370 (statement of Sen. McClellan) (bill

“authorizes private injunctive relief from racketeering activity”).

''The Seventh Circuit disparaged recourse to the legislative history of

RICO. OR Pet. App. 115a-16a. But this Court has repeatedly invoked

legislative history as a basis for limiting RICO. E.g., Holmes v. SIPC, 503

U.S. 258, 267-68 (1992); Reves v. Ernst & Young, 507 U.S. 170, 179-83

(1993). In fact, as illustrated in the text supra, analysis of legislative history

(continued...)

—EE ——

30

C. The Counterarguments in Favor of Private

Injunctive Relief Under RICO Lack Merit.

In light of the foregoing, it is not surprising that virtually

every court to address the issue has concluded that RICO does

not authorize private parties to sue for injunctive relief. See

supra note 11. Indeed, lower courts have frequently declared

themselves compelled to reach this conclusion.'®

The district court'’ and court of appeals in the present case,

meanwhile, offered no convincing analysis. Furthermore, none

of the argumenis offered for reading into RICO a private

injunctive remedy has merit.'®

'S(.. continued)

is characteristic of this Court’s RICO jurisprudence.

'*See, e.g., Wollersheim, 796 F.2d at 1088 (“Taken together, the legislative

history and statutory language suggest overwhelmingly that no private

equitable action should be implied under civil RICO”) (footnote omutted);

First Nat'l Bank and Trust Co. v. Hollingsworth, 701 F. Supp. 701, 703

(W.D. Ark. 1988) (“it would be difficult, if not impossible, to draw a

different conclusion”); P.R.F., Inc. v. Philips Credit Corp., No. CIV 92-

2266CCC, 1992 WL 385170 at *3 (D.P.R. Dec. 21, 1992) (“any other

conclusion would not be reasonable”).

"The district court provided virtually no analysis of the issue. See NOW

v. Scheidler, 897 F. Supp. 1047, 1081-83 (N.D. Ill. 1995) (order regarding

motions to dismiss); OR Pet. App. 82a-84a (granting permanent injunction).

That court said that there was “substantial authority” for its position among

the lower courts and declared itself “persuaded by the rationale in those

opinions.” 897 F. Supp. at 1083. But none of the cases the district court

cited held that private parties can sue for injunctive relief under RICO.

Indeed, several of the decisions the district court relied upon did not even

involve RICO.

'$Out of some two dozen courts to discuss the issue, only three district

courts (aside from the courts below here), have held that private parties can

obtain injunctions under RICO. See Chambers Dev. Co. v. Browning-Ferris

(continued...)

31

1. The word “and” does not create a private

injunctive remedy.

It has been argued that the word “and” in RICO § 1964(c)

provides a justification for private injunctive relief. The

contention is that, because subsection (c) provides that any

person injured in his business or property may sue “and shall

recover” treble damages, instead of providing that any such

person may sue “fo recover” treble damages, that therefore the

relief under subsection (c) is not limited to treble damages.

The Seventh Circuit embraced essentially this argument in

support of its holding. The court read the word “and” as

'§(._ continued)

Indus., 590 F. Supp. 1528, 1540-41 (W.D. Pa. 1984); Motorola Credit

Corp. v. Uzan, 202 F. Supp. 2d 239, 243-44 (S.D.N.Y. 2002), remanded,

322 F.3d 130 (2d Cir. 2003) (per curiam) (directing dismissal of RICO

claims as unripe); Jn re Managed Care Litigation, 298 F. Supp. 2d 1259,

1281-83 (S.D. Fla. 2003).

One case -- Chambers -- preceded the extensive analysis in Wollersheim

and has not been followed by any other court. Indeed, even later district

court decisions in the same federal circuit (the Third) as the Chambers court

reached the opposite conclusion fiom Chambers, ruling that RICO does not

provide for injunctive relief to private parties. See Vietnam Veterans of

America, Inc. v. Guerdon Indus., Inc., 644 F. Supp. 951, 960-61 (D. Del.

1986); Curley v. Cumberland Farms Dairy, Inc., 728 F. Supp. 1123, 1137-

38 (D.N.J. 1989).

The second, while distancing itself from the Seventh Circuit's reasoning

in this case, erroneously relied upon a presumed power of courts, apart from

RICO, to grant equitable relief. Motorola Credit, 202 F. Supp. 2d at 243-

44. In effect, the Motorola court placed the burden on Congress explicitly

to deny private injunctive relief to private parties, rather than following the

rule that where Congress specifies certain remedies, they are normally

deemed exclusive. See supra § III(A){1). In any event, this decision was

overturned on other grounds. See supra.

The third district court simply followed the Seventh Circuit’s decision in

this case. /n re Managed Care Litigation, 298 F. Supp. 2d at 1283.

32

severing the first clause of subsection (c) from the remainder of

that subsection. In effect, the Seventh Circuit read subsection (c)

as if it were written as follows:

(c) Any person injured in his business or property by reason

of a violation of section 1962 of this chapter may sue

therefor in any appropriate United States district court

and(. In addition to any other available remedies, such

person] shall recover threefold the damages he sustains

and the cost of the suit, including a reasonable attorney’s

fee.

See OR Pet. App. 111la-12a. This “reconstruction” of RICO §

1964(c) is simply another version of the argument that the word

“and,” rather than linking the private cause of action with the

treble damages remedy, instead justifies construing subsection

(c) as a blanket authorization for private parties to institute civil

RICO suits for both treble damages and all equitable relief

identified in subsection (a).

This argument is deeply flawed.

First, this reading is “bizarre and wholly unconvinciag as a

matter of plain English and the normal use of language.”"® If

Congress had intended to take such a significant step as

authorizing private RICO suits for injunctive relief -- and the

text and legislative history, discussed above, decidedly refute

any such intent -- it would be truly “bizarre” for Congress to do

so by such an obscure and indirect means when Congress could

simply have said so in plain language.

Second, the identical term “and” appears, in an

indistinguishable context, in the Sherman antitrust statute, see

supra § IIl(A)(2) (“Any person who shall be injured in his

business or property . . . may sue therefor . . . and shall recover

'*Kaushal, 556 F. Supp. at 582. Accord Sedima, 741 F.2d at 489 n.20.

33

threefold the damages . . .”) (emphasis added), which this Court

held does not authorize private suits for injunctive relief, see

Paine Lumber Co. v. Neal, 244 U.S. 459, 471 (1917); Minnesota

v. Northern Sec. Co., 194 U.S. 48, 67-68, 70-71 (1904).

Moreover, the private treble damages provision of the Clayton

antitrust act, 15 U.S.C. § 15, uses the term “and” in identical

fashion. Supra p. 24. To read this word as implying that private

litigants may also sue for injunctive relief would render the

Clayton Act’s separate, express authorization of private

injunctive relief, 15 U.S.C. § 26, a meaningless redundancy.”°

Third, the term “and,” if anything, operates to /imit the

available relief to that explicitly set forth in RICO § 1964(c).

Had that subsection merely authorized anyone injured in his

business or property “to sue therefor,” period, then there might

be some ambiguity as to what relief would be available. But by

spelling out that an injured person may sue “and recover

threefold the damages he sustains,” the statute leaves no doubt

as to both the right and the remedy.

In short, the word “and” simply cannot bear the weight this

argument places upon it.

2. Subsection (a) of § 1964 does not create a

private injunctive remedy.

The argument has also been made that subsection 1964(a),

which confers jurisdiction and authorizes certain remedies,

should be read as creating remedies under RICO for both private

parties and for the government. Under this reading, subsection

(b) merely gives the government an additional right to equitable

relief pendente lite, and subsection (c) merely gives private

parties an additional right to treble damages, costs, and attorney

fees. The Seventh Circuit appears to have embraced this

See Wollersheim, 796 F.2d at 1087 & n.11; Kaushal, 556 F. Supp. at 583

& n.22; Sedima, 741 F.2d at 489 n.20; DeMent, 589 F. Supp. at 1382.

34

argument. OR Pet. App. 110a-1 la.

This argument is defective.

First, this argument ignores the explicitly jurisdictional nature

of subsection (a) (“The district courts . . . shal! have jurisdiction

to...”). See Touche Ross & Co. v. Redingion, 442 U.S. 560,

576-77 (1979) (rejecting the argument that a jurisdictional

provision in a statute can give rise to cause of action: “[tjhe

source of plaintiff's rights must be found . . . in the substantive

provisions . . ., not in the jurisdictional provision”). While

subsection (a) authorizes equitable relief, it does not -- as the

Seventh Circuit conceded, OR Pet. App. 113a -- specify which

plaintiffs can seek the remedies it provides. For the answer to

that question, recourse must be had to subsection (b) (“The

Attorney General may institute proceedings under this section.”).

Thus, the subsection (a) argument depends entirely upon the

premise that subsection (c) grants private plaintiffs -- and not

just the Attorney General -- plenary authority to “institute

proceedings under this section,” an argument refuted above.

Supra §§ IM(A)(1), (C)(1).

Second, this argument again ignores the parallels to antitrust

law. The very statute which this Court held did not authorize

private injunctive relief, supra § III(A)(2), also contained a

broad jurisdictional provision with language largely identical to

subsection 1964(a). See Northern Securities, 194 U.S. at 67

(quoting text of § 4).

The Seventh Circuit perceived (OR Pet. App. 1!2a) support

for its reasoning in this Court’s decision in Steel Co. v. Citizens

for a Better Environment, 523 U.S. 83, 90 (1990). But reliance

on Steel Co. is puzzling. That case merely rejected the claim

that a provision giving courts “jurisdiction in actions brought

under {a subsection]” made every element of the pertinent

substantive subsection “jurisdictional.” /d. Petitioners made no

such argument regarding RICO.

35

3. RICO’s “liberal construction” clause and

general purposes do not create a private

injunctive remedy.

Another argument the Seventh Circuit offered to justify

reading into RICO a right of private injunctive relief is the

legislative directive to construe RICO liberally to effectuate its

purposes. OR Pet. App. 113a-14a. This argument is a make-

weight. As this Court has explained, “RICO’s ‘liberal

construction’ clause . . . is not an invitation to apply RICO to

new purposes that Congress never intended.” Reves v. Ernst &

Young, 507 U.S. 170, 183 (1993). The meaning of RICO “must

be gleaned from the statute through the normal means of

interpretation.” Jd. at 184."

The Seventh Circuit's invocation of the broad “underlying

purposes” of RICO, OR Pet. App. 1 14a, is likewise no warrant

for construing RICO contrary to its text and legislative history.

“Our task here is not to determine what would further

Congress’s goal . . . but to determine what the words of the

statute must fairly be understood to mean.” Holmes Group Inc.

v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 833 (2002).

?'As the Fifth Circuit observed:

The “liberal construction” directive, however, neither compels nor

authorizes us to disregard convincing evidence from the legislative history

that Congress believed it had not approved private injunctive remedies and

balked at doing so.

Fredeman, 843 F.2d at 830.

36

D. The United States as Amicus in Scheidler II

Officially Opposed Construing RICO to Authorize

Private Litigants to Invade the Attorney General’s

Exclusive Prerogative to Seek Equitable Relief.

In its amicus brief filed in Scheidler II, the United States

agreed that “RICO does not authorize private parties to seek

injunctive relief.” U.S. Br. at 3, Scheidler II (supra p. 7).

The United States argued first that the text and structure of

RICO “vests the Attorney General with the exclusive authority

to bring suit for injunctive relief.” Jd. at 4.

By empowering the Attorney General alone to institute

proceedings “under this section,” Congress signaled its intent

that the district court’s equitable jusisdiction under Section

1964(a) must be invoked by the Attorney General. There is

no corresponding provision that authorizes a private party to

institute proceedings “under this section” . . . .

Id.. Describing the Seventh Circuit’s contrary reasoning as

“flawed,” id. at 8, the United States continued:

As explained, Section 1964(b) expressly grants the Attorney

General the right to bring actions under “this section,” an

obvious cross-reference to the court’s power to award

injunctive relief under Section 1964(a). Section 1964(c), by

contrast, is a free-standing, self-contained grant of a private

right to recover treble damages. The provision contains no

express or implied reference to, or incorporation of, Section

1964(a).

Id.

The parallels between the remedy provisions of antitrust laws

and RICO, the United States continued, “support the same

conclusion.” Jd. at 9. In light of this Court’s precedents

recognizing that the pertinent provisions of the Sherman Act

37

“did not authorize private parties to bring suit for injunctive

relief,” id. at 10 (footnote and authorities omitted), “Congress is

presumed to be aware when it enacted RICO that, absent

inclusion of an express private right to obtain injunctive relief,

the language it selected would be construed to exclude such a

right,” id. at 11 (emphasis in original). The absence of any such

provision, the United States explained, “makes clear that

Congress did not intend to create a private nght to equitable

relief under RICO.” Jd. at 12. |

The legislative history of RICO, the United States observed,

“confirms that Congress made a deliberate choice in omitting

authority for a private injunctive action.” Jd. The United States

pointed specifically to “repeated attempts to do so” -- all of

which failed -- both before and after the passage of RICO. Jd. at

13.

Finally, as a matter of policy, the United States argued that

“fijt is neither necessary nor appropriate to construe RICO

implicitly to place . . . in private hands” the “wide-ranging

injunctive relief, including divestiture and _ corporate

reorganization and dissolution,” which RICO empowered the

Attorney General to seek. /d. at 14. Given the “rigor” of these

remedies -- going so far as to include “corporate death” -- it is

“not surprising,” the United States reasoned, “that Congress

entrusted the Attorney General, acting with ‘official unity of

initiative,’ with the exclusive authority to obtain such relief.” Jd.

(some editing marks and citations omitted).

* * *

By in effect amending RICO to authorize private civil suits for

injunctive relief, the Seventh Circuit has abolished the federal

government’s exclusive prerogative to seek such relief. Not only

is this an affront to a unique federal executive power, it is an

open invitation to abuse. Under the decision below, private

38

parties are no longer limited to damages for the harm they

suffered; they now can seek equitable relief wholly independent

of, and potentially in conflict with, the decisions of the Attorney

General regarding pursuit of such relief. “That holding could

adversely affect the United States’ ability to obtain equitable

relief such as disgorgement when both private parties and the

government seek such relief for the same conduct.” U.S. Br.,

Scheidler IT, p. 1.

Furthermore, private parties do not have the political

accountability, or the duty to exercise prosecutorial discretion,

that apply to the federal government. Under the Seventh

Circuit’s faulty interpretation, the RICO injunctive weapon can

now be misused -- as in the present case -- as a means of waging

political or commercial warfare against one’s adversaries.

This Court should reverse the Seventh Circuit and hold that

RICO does not authorize private injunctive relief.

IV. THISCOURT SHOULD LEAVE NO DOUBT THAT

THIS CASE IS OVER.

The Seventh Circuit identified mo grounds for further

prolonging this lengthy case other than the possibility of granting

some injunctive relief under RICO, based upon the theory that

the Hobbs Act prohibits “violence alone,” i.e., unconnected to

robbery or extortion, and that this Court had overlooked and thus

not reversed four predicate acts of actual or threatened violence.

As demonstrated above, each of the three links in this chain of

reasoning is independently flawed.

The Seventh Circuit not only failed to endorse any other

theory for extending the litigation, but in fact affirmatively

forbade any retrial or further development of the record

{I]t is too late in the day for the plaintiffs to try to prove an

39

entitlement to damages associated with [the “violence

predicates.] 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... . {Our remand on the

“violence” predicates theory] is not. . . 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.

OR Pet. App. at 7a-8a.

In closing, we wish to re-emphasize that this remand is not a

“green light” to start this old litigation anew. ... [I]t 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 mal.

Id. at 16a-17a.

Respondents did not seek certiorari to contest the Seventh

Circuit’s preclusion of damages, retrial, or reopening of the

record. Hence, there is no basis for respondents to pursue still

more litigation in this case.

The present case, at nineteen years of age, has long since

passed the point at which NOW should be free to spend

additional months and years pursuing new theories of liability.

“Given the age of this case, remanding to the district court

unnecessarily wastes additional judicial resources.” Jd. at 24a

(dissent below). This Court should make clear beyond all doubt

that petitioners are entitled to final judgment on a// claims, and

that the present case is over. As this Court said last time, “a// of

the predicate acts supporting the jury’s finding of a RICO

violation must be reversed, the judgment that petitioners violated

RICO must also be reversed, [and] the injunction . . . must

necessarily be vacated.” /d. at. 48a (emphasis added).

40

CONCLUSION

This Court should reverse the judgment of the Seventh Circuit

and remand with instructions to direct the entry of judgment for

petitioners on all claims.

Thomas P. Monaghan

John P. Tuskey

Laura B. Hernandez

Shannon D. Woodruff

Larry L. Crain

Robert W. Ash

American Center for Law

and Justice

1000 Regent University Dr.

Virginia Beach, VA 23464

(757) 226-2489

Respectfully submitted,

Jay Alan Sekulow

Counsel of Record

Walter M. Weber

Paul J. Larkin, Jr.

Stuart J. Roth

Vincent P. McCarthy

Ann-Louise Lohr

American Center for Law

and Justice

201 Maryland Ave., N.E.

Washington, DC 20002

(202) 546-8890

Attorneys for Petitioner Operation Rescue

September 2, 2005

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