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National Organization for Women v. Scheidler

April 30, 2007


The opinion of the court was delivered by: David H. Coar United States District Judge



Before this Court is Randall A. Terry's Motion for Relief from Interlocutory Order made pursuant to Federal Rule of Civil Procedure 60(b)(5). For the reasons stated below, the motion is denied.


Long ago in 1986, several health care clinics that perform abortions and the National Organization for Women, Inc. (collectively "Plaintiffs"), a national pro-choice nonprofit organization that supports the availability of abortions for women, sued several pro-life individuals and organizations, including Terry (the "Defendants"), who engaged in pro-life, anti-abortion protest activities under the belief that the Defendants had tried to disrupt activities at abortion clinics through violence and other illegal activities. Plaintiffs brought a civil action, which sought damages and an injunction forbidding Defendants from engaging in such activities anywhere in the Nation. Plaintiffs based their claims on the theories that the Defendants' conduct violated several federal and state laws including the Sherman Antitrust Act and the Racketeer Influenced and Corrupt Organizations Act ("RICO"). The district court dismissed the complaint in 1991. The Seventh Circuit Court of Appeals affirmed that dismissal in 1992. In 1994, the United States Supreme Court reversed the Court of Appeals in 1994 and remanded the case. In November of 1997, trial was set for March of 1998.

In January of 1998, Plaintiffs and Terry entered into a settlement agreement in which they agreed that Terry would refrain from interfering with the right of the Plaintiff Clinics*fn1 to conduct their business (including but not limited to abortion), or the claimed right of women to avail themselves of the Plaintiff Clinics' services (including but not limited to abortion), by blockading the entrances by any means whatsoever; from trespassing on the property of a Plaintiff Clinic; from using violence or the threat of violence against any Plaintiff Clinic or any of its employees or volunteers, or against women who seek to use the services of such a Clinic; from engaging in any other unlawful practice intended to prevent women from exercising their claimed right to have an abortion and/or prevent the Plaintiff Clinics from providing such services to women; or from organizing, inciting or encouraging others to do any of the acts enumerated in this paragraph, or from participating in an enterprise that engages in any of these acts. Terry also agreed in the event that he commits one of the afore-mentioned acts, he will be subject to the reopening of this action, new lawsuits, and that the liquidated damages in any such case will be $15,000 per act. In exchange for his agreement, Plaintiffs agreed to drop all claims against Terry and therefore released him from the lawsuit.

Plaintiffs and Terry also agreed that this Court may enter an order consistent with the settlement agreement enjoining Terry from engaging in of the acts he agreed to refrain from committing. On February 18, 1998, this Court held a fairness hearing, approved the settlement agreement and drafted an order that explicitly incorporated the terms and conditions of the settlement agreement. On February 27, 1998, that order, entitled Order of Final Approval of Partial Settlement between Plaintiffs and Randall A. Terry (the "Order"), was entered. The Order approved the settlement agreement, effectuated its terms in the form of a nationwide injunction, and retained jurisdiction for twelve years to enforce its terms and conditions. On March 3, 1998, trial began for the other Defendants. A jury found those Defendants engaged in several extortion-related acts and found them liable for treble damages under the RICO law. The Court of Appeals affirmed those findings in 2001. In 2003, the Supreme Court again reversed the Court of Appeals and remanded the case by holding that the Defendants' conduct did not constitute extortion as the term is defined under RICO.

On remand in 2004, the Court of Appeals held that the jury's RICO verdict was based on four acts (or threats) of physical violence unrelated to extortion in addition to the instances of extortion-related conduct and that the Supreme Court had no occasion to consider whether those four acts alone might constitute predicate acts under RICO to support liability. In 2006, the Supreme Court once again took the case. It held that "physical violence unrelated to robbery or extortion falls outside the scope of the Hobbs Act" and thus could not serve as predicate acts upon which RICO liability could be established. Scheidler v. NOW, Inc., 126 S.Ct. 1264, 1270 (2006). It also unequivocally directed the lower courts to enter judgment for the Defendants (not including Terry because he was not one of the defendants at that point). Id. at 1274.

So now, because the Defendants will soon have judgment entered in their favor, Terry seeks to benefit from the risks taken and costs paid by the other Defendants and escape the consequences of his own decision to forgo those same risks and costs. In doing so, he relies on Federal Rule of Civil Procedure 60(b)(5), which allows a court the discretion to relieve a party from a final order when "a prior judgment upon which it is based has been reversed or otherwise vacated or if it is no longer equitable that the judgment should have prospective application."


A change or modification of a permanent injunction is extraordinary relief and requires a showing of extraordinary circumstances. Protectoseal Co. v. Barancik, 23 F.3d 1184, 1186 (7th Cir. 1994); Money Store, Inc. v. Harriscorp Finance, Inc., 885 F.2d 369, 372 (7th Cir. 1989); Ben Sager Chemicals Int'l v. E. Targosz & Co., 560 F.2d 805, 808 (7th Cir. 1977). The burden is on the party seeking modification of the order to present clear evidence establishing that a significant change in either factual conditions or the law renders enforcement of the order inequitable. Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 384 (1992); United States v. Rueth Dev. Co., 335 F.3d 598, 603 (7th Cir. 2003); Protectoseal Co., 23 F.3d at 1186. The Seventh Circuit has made clear that "a court can modify an injunction that it has entered whenever the principles of equity require it do so." In the Matter of Hendrix, 986 F.2d 195, 198 (1993). The standard for modification is based not only on hardship to the enjoined party, but also on whether there remains a need to continue the injunction. In other words, one question to be asked is whether the purposes of the injunction been fulfilled. United States v. Chicago, 663 F.2d 1354, 1360 (7th Cir. 1981).


Terry spends the majority of his argument addressing why the Rufo standard of review should be applied in reviewing the Order instead of explaining exactly how application of the principles of equity should result in vacating the Order. Principles of equity are vast and amorphous but some guiding tenets can be discerned and applied here. While Terry has offered several functional reasons why the Order could be vacated, he has not demonstrated how the continued enforcement of the Order is inequitable or unjust. Therefore, Terry has not persuaded this Court that the fundamentals of equity justify this Court modifying its previous Order.

The Supreme Court has instructed that "[a] consent decree must of course be modified if, as it later turns out, one or more of the obligations placed upon the parties has become impermissible under federal law. But modification of a consent decree may be warranted when the statutory or decisional law has changed to make legal what the decree was designed to prevent." 502 U.S. at 388. The Court added that "[w]hile a decision that clarifies the law will not, in and of itself, provide a basis for modifying a decree, it could constitute a change in circumstances that would support ...

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