9.

Considerations In Determining What Relief To Ask For Under FACE

Non-Injunctive Relief. Several factors should inform the decision of whether to seek monetary relief. First, civil penalties and actual damages are legal remedies entitling a defendant to a jury trial under the Seventh Amendment. See Tull v. United States, 481 U.S. 412 (1990); Wooddell v. Electrical Workers, 112 S.Ct. 494 (1991). Whether statutory damages are legal or equitable is unclear. Compare Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829 (11th Cir. 1990) (statutory damages under the Copyright Act are equitable), and Raydiola Music v. Revelation Rob, Inc., 729 F. Supp. 369 (D. Del. 1990) (same), with Calderon v. Witvoet, 999 F.2d 1101 (7th Cir. 1993) (statutory damages are legal). Even though equitable claims, such as those for injunctive relief, are normally decided by a judge, factual issues common to legal and equitable claims are determined by a jury. Lytle v. Household Mfg., Inc., 494 U.S. 545 (1990). Therefore, it is important to consider the likelihood of drawing an unsympathetic jury in deciding whether to seek monetary relief, and what type to seek. Second, requesting actual damages on behalf of a clinic may introduce problems the clinic will be unwilling or unable to resolve. For example, a claim for revenue lost by a clinic would likely result in the clinic being required to open up its financial records to discovery. Most clinics will be unwilling to allow discovery of such information. Such a claim might also lead a defendant to request the names of patients, which the clinic may be unable to reveal because of doctor-patient privilege. For these reasons, statutory damages are often preferable to actual damages. NOTE: It is the position of the Department that civil penalties serve a deterrent effect and, therefore, should be sought whenever possible. Injunctive Relief. When a violation of FACE has occurred, a plaintiff may move for a temporary, preliminary, and/or permanent injunction. 18 U.S.C. § 248(c)(1)(B), (2)(B), and (3)(B). NOTE: It has been the practice of the United States to seek preliminary injunctive relief in civil FACE cases whenever possible. The type and scope of injunctive relief asked for in a complaint should be determined on a case by case basis and tailored to fit the particular set of facts and alleged violations. NOTE: When crafting the prayer for relief, it may be appropriate to include an "in concert" provision, requesting for example that "[a]n immediate injunction be issued that would enjoin the defendants, their agents, servants, employees, and all individuals acting in concert with them from violating, or from aiding, abetting, directing or inciting others to violate the provisions of FACE . . . ." In addition to prohibitions against violating FACE, examples of other types of injunctive relief the United States has sought include: (1) "buffer zones" or areas in which defendants may not conduct certain activities or enter; (2) noise restrictions; and (3) notice requirements requiring defendants to notify the United States and/or relevant law enforcement authorities of impending demonstrations or picketing. NOTE: Currently ”Schenck v. Pro-Choice Network of Western New York•, 117 S.Ct. 855 (1997), and ”Madsen v. Women's Health Center, Inc.•, 114 S.Ct. 2516 (1994), comprise the most directly relevant Supreme Court authority on the permissible scope of injunctive relief in the context of reproductive health facilities. Both ”Schenck• and ”Madsen• provides useful guidance on how to craft a request for a "buffer zone" that does not overreach or violate the First Amendment. [updated February 1998]