National Organization for Women v. Operation Rescue
| Decision Date | 18 October 1994 |
| Docket Number | 93-7058,Nos. 91-7001,s. 91-7001 |
| Citation | 37 F.3d 646 |
| Parties | NATIONAL ORGANIZATION FOR WOMEN, et al. v. OPERATION RESCUE, et al., Appellants. NATIONAL ORGANIZATION FOR WOMEN; 51st State National Organization for Women; Maryland National Organization for Women; Virginia National Organization for Women; Planned Parenthood of Metropolitan Washington, D.C., Inc.; National Abortion Federation; Commonwealth Women's Clinic; Capitol Women's Center, Inc.; Hillcrest Women's Surgi-Center, Plaintiffs-Appellees, Washington Surgi-Clinic; New Summit Medical Center, Incorporated; Washington Hospital Center Corporation, Intervenor Plaintiffs-Appellees, v. OPERATION RESCUE; Project Rescue; D.C. Project; Veterans Campaign for Life; Randall Terry; Patrick Mahoney; Clifford Gannett; Michael McMonagle; Michael Bray; Jane Bray, Defendants-Appellants, Joseph Slovenec; Phillip Vollman; The Christian Defense Coalition; Rusty Thomas, Defendants-Appellants, Keith Tucci; Jeff White; Michael King; Mark Dubioski; Robert Jewitt, Defendants-Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
David H. Shapiro argued the cause, for appellants. With him on the briefs was Richard L. Swick.
D. Jean Veta argued the cause, for appellees. With her on the brief were Laurence J. Eisenstein and Deborah A. Ellis.
Before WALD, WILLIAMS and HENDERSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
Operation Rescue and various individuals appeal from an order of the United States District Court for the District of Columbia issuing a permanent injunction prohibiting them from "in any manner, or by any means trespassing on, blockading, impeding or obstructing access to or egress from any facility at which abortions, family planning, or gynecological services are performed in the District of Columbia," and from "inducing, encouraging, directing, aiding, or abetting others" to engage in such activities. Appellants also appeal from orders of the district court holding them in civil contempt for acts in violation of the injunction.
We affirm the district court's determination that it properly exercised subject-matter jurisdiction over the pendent District of Columbia trespass and public nuisance claims upon which the injunction is based, but remand to the district court with instructions to modify the language of the injunction to conform to the district court's expressed intention to enjoin appellants from "inciting" illegal acts. We affirm those contempt sanctions that compensate appellees for actual damages, together with per diem sanctions to compel appellant Keith Tucci to appear in court. However, we vacate the remaining contempt sanctions and remand to the district court for further proceedings consistent with the Supreme Court's opinion in International Union, United Mine Workers of America v. Bagwell, --- U.S. ----, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994). Finally, we vacate the award of attorneys' fees to appellees under 28 U.S.C. Sec. 1988.
This case arises out of a series of anti-abortion protests by Operation Rescue and its supporters (hereinafter "Operation Rescue" or "appellants") involving physical blockades of clinics providing abortion services. Such blockades, described as "rescues" by Operation Rescue, have been conducted in the District of Columbia, surrounding Virginia and Maryland communities, and other metropolitan areas throughout the country dating back at least to 1988. Because these blockades physically prevent ingress to and egress from clinics for many hours or even day-long periods, patients, physicians, and medical staff are prevented from receiving or providing medical and counseling services, creating a risk of physical or mental harm to patients. NOW v. Operation Rescue, 747 F.Supp. 760, 764 (D.D.C.1990) (). In addition, some "rescues" have involved trespass on, and damage to, clinic property. 747 F.Supp. at 765.
The "rescues" that precipitated this lawsuit took place at clinics in Washington, D.C. on November 10-12 and 18-20, 1989, despite a preliminary injunction prohibiting the blocking of access to clinics. Additional blockades took place on January 20-22, 1992, April 4, 1992, and January 21 and 23, 1993, despite permanent injunctions then in effect.
In anticipation of "rescues" planned for November 11, 1989, the National Organization for Women ("NOW"), its affiliates, and several clinics in the District of Columbia commenced this action on October 27, 1989, seeking injunctive relief in federal district court to prohibit the blockading of the clinics. Their complaint alleged violations of 42 U.S.C. Sec. 1985(3) (), and included pendent District of Columbia claims of trespass, public nuisance, and tortious interference with business relationships.
The district court issued a preliminary injunction on November 8, 1989, NOW v. Operation Rescue, 726 F.Supp. 300 (D.D.C.1989). The preliminary injunction was based solely on the pendent local law claims; the district court deferred any decision on the federal claims, which it viewed as "unsettled" but nonetheless sufficiently substantial to confer federal jurisdiction. Subsequently, the district court issued a permanent injunction on January 26, 1990, and a revised permanent injunction, supported by a memorandum opinion, on July 31, 1990, NOW v. Operation Rescue, 747 F.Supp. 760 (D.D.C.1990), granting summary judgment to NOW on both its federal Sec. 1985(3) claims and pendent local law claims of trespass and public nuisance, while dismissing the claim of tortious interference with business relationships. The court based its actions substantially upon the preclusive effect of findings of fact and conclusions of law in the related, previously-decided Virginia case, NOW v. Operation Rescue, 726 F.Supp. 1483 (E.D.Va.1989), aff'd, 914 F.2d 582 (4th Cir.1990), rev'd in part sub nom. Bray v. Alexandria Women's Health Clinic, --- U.S. ----, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993).
On July 31, 1990, the district court cited Operation Rescue and various individuals for civil contempt based on their actions in connection with the November 1989 blockades, which the court found to be in violation of the preliminary injunction. NOW v. Operation Rescue, 747 F.Supp. 772 (D.D.C.1990). The district court assessed fines to compensate the clinics for damages resulting from interference with their business and destruction of their property, against Operation Rescue, Clifford Gannett, Joseph Foreman, Susan Odom, and Michael McMonagle, jointly and severally, $1,680 for damages to the Hillcrest Clinic, $533 for damages to the Capitol Women's Center, and $3,800 for damages to the Washington Surgi-Clinic. The district court also established a schedule of escalating prospective fines for continued violations of the injunction, payable to the clinics; the court characterized these contempt sanctions as "coercive" and therefore civil in nature.
Operation Rescue filed timely notices of appeal from both the injunction and the contempt citations. These appeals were stayed pending Supreme Court resolution of the related Virginia case. On January 13, 1993, the Supreme Court held in Bray v. Alexandria Women's Health Clinic, --- U.S. ----, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993), that plaintiffs similarly situated to appellees in this case had no federal cause of action under 42 U.S.C. Sec. 1985(3), but that plaintiffs' Sec. 1985(3) claims were "not ... 'wholly insubstantial and frivolous,' " and therefore sufficient to confer subject-matter jurisdiction over both the federal and pendent state claims. --- U.S. at ----, 113 S.Ct. at 768. On March 16, 1993, the district court ruled that it would nonetheless retain pendent jurisdiction over surviving local law claims in this case, and issued a second contempt order holding various appellants in contempt for violations of the injunction in connection with blockades conducted on January 20-22, 1992, and April 4, 1992. NOW v. Operation Rescue, 816 F.Supp. 729 (D.D.C.1993). This second contempt order cited "knowing and deliberate" violations of the injunction, and imposed fines in accordance with the previously-announced schedule of sanctions: against Operation Rescue National and Operation Rescue jointly, $100,000; against Clifford Gannett, $15,000; against Patrick Mahoney, $10,000; and against Keith Tucci, $15,000. The district court also fined Operation Rescue and Operation Rescue National an additional $1,010 to compensate the Hillcrest Women's Surgi-Center for property damage, and fined Keith Tucci an additional $41,600 for refusing to appear in court in violation of the court's order ($100 per day for 416 days). On April 28, 1993, the district court amended its March 16 order to fine Joseph Foreman $5,000 for violations of the injunction. The district court characterized all these fines as civil contempt sanctions.
On March 12, 1993, NOW initiated yet another round of contempt proceedings based on blockades conducted on January 21 and 23, 1993. Because appellants had not yet paid any of the fines ordered as contempt sanctions, the district court on March 31, 1993, requested supplemental briefing on enforcement of its orders, and appointed an amicus to consider First Amendment implications of its injunction. On July 29, 1993, the district court ruled that the injunction was constitutionally permissible under the First Amendment.
On August 11, 1993, all of Operation Rescue's pending appeals were consolidated by this court.
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