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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, 

Plaintiff,

v. Civil Action No. 11-1280 (JEB)

RICHARD RETTA,

 Defendant.

MEMORANDUM OPINION AND ORDER

In bringing this suit, the Government claims Defendant Richard Retta violated the 

Freedom of Access to Clinic Entrances (FACE) Act, 18 U.S.C. § 248, when he interfered with a 

patient who was attempting to enter a Planned Parenthood clinic and the escorts who were 

assisting her. Retta has now filed a Motion to Dismiss, contending that the Complaint suffers 

from three defects. First, he maintains that the Government failed to plead that the patient was in 

fact obtaining, and the escorts were in fact providing, reproductive health services. Second, he 

argues that the Complaint lacks allegations sufficient to establish that Retta acted with the 

requisite motivation. Third, he insists that the Government is not statutorily authorized to seek a 

liquidated damages award of $5,000 on behalf of the alleged victims. 

Although the Government’s Complaint could certainly benefit from the addition of some 

fuller factual allegations, the Court believes it suffices to survive the Motion. The Court will 

also reject Retta’s challenge to the liquidated damages remedy, which it interprets as a Motion to 

Strike.

I. Background
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In 1994, “[r]eacting to a nationwide pattern of blockades, vandalism, and violence aimed 

at abortion clinics and their patients and employees, Congress enacted the [FACE] Act.” Terry 

v. Reno, 101 F.3d 1412, 1414 (D.C. Cir. 1996) (citing 18 U.S.C. § 248). The statute provides 

penalties for and remedies against an individual who “by force or threat of force or by physical 

obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate 

or interfere with any person because that person is or has been, or in order to intimidate such 

person or any other person or any class of persons from, obtaining or providing reproductive 

health services.” 18 U.S.C. § 248(a)(1).

In this case, the Government contends that Retta, a “regular anti-abortion protestor at the 

Planned Parenthood of Metropolitan Washington,” Compl., ¶ 5, violated the FACE Act on 

January 8, 2011, when he “physically obstructed a patient from entering the Clinic, and 

physically obstructed Clinic escorts, such that the patient was only able to ultimately access the 

Clinic with the extraordinary assistance and intervention of another Clinic escort and staff.” Id., 

¶ 16. According to the Complaint, which, for purposes of the instant Motion, must be taken as 

true, Retta began speaking to the patient in front of the Clinic gate at approximately 11:20 am. 

Id., ¶ 17. After she “became visibly upset,” two volunteer escorts offered to accompany her to 

the Clinic so that she “would not have to talk to [Retta].” Id., ¶¶ 18-19. 

Retta walked alongside the patient and the two escorts for nearly the entire length of the 

approximately 35-foot walkway from the sidewalk to the Clinic door, shouting at the escorts as 

he went. Id., ¶¶ 19-20. About six feet from the entrance, Retta positioned himself immediately 

in front of the patient and the escorts and yelled, “Don’t go in there. Don’t let them kill your

baby.” Id., ¶¶ 20-22. The escorts repeatedly asked him to move out of the patient’s way and 

attempted to guide her past him. Id., ¶ 21. Each time they tried to walk around him, however, 
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Retta “shifted his position, weaving to step in front of the patient” and preventing both the 

patients and the escorts from accessing the Clinic. See id., ¶ 23-24. It was only after a third 

escort “physical planted himself next to [Retta], preventing [him] from continuing to block the 

patient,” and a security officer from the Clinic’s front desk exited the Clinic to assist in guiding 

the patient inside the Clinic that she was able to enter. See id., ¶ 25.

On July 14, 2011, the United States filed a Complaint asserting a civil cause of action 

under the FACE Act. The Government seeks an Order, inter alia, prohibiting Retta from 

entering or coming near the Clinic gate and from committing further violations of the FACE Act, 

an award of statutory compensatory damages of $5,000 for “the three victims” of Retta’s 

allegedly unlawful activity, and a civil penalty assessment in the amount of $10,000. See

Compl., ¶ 35. Retta has now filed a Motion to Dismiss under Rule 12(b)(6), claiming that the 

United States has failed to plead a claim upon which relief can be granted. 

II. Legal Standard

Rule 12(b)(6) provides for the dismissal of an action where a complaint fails “to state a 

claim upon which relief can be granted.” When the sufficiency of a complaint is challenged 

under Rule 12(b)(6), the factual allegations presented in it must be presumed true and should be 

liberally construed in plaintiff’s favor. Leatherman v. Tarrant Cty. Narcotics & Coordination 

Unit, 507 U.S. 163, 164 (1993). The notice pleading rules are “not meant to impose a great 

burden on a plaintiff,” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and he or she 

must thus be given every favorable inference that may be drawn from the allegations of fact. 

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 584 (2007). Although “detailed factual 

allegations” are not necessary to withstand a Rule 12(b)(6) motion, Twombly, 550 U.S. at 555, 

“a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that 
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is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation 

omitted). Plaintiff must put forth “factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.” Id. Though a plaintiff may 

survive a 12(b)(6) motion even if “recovery is very remote and unlikely,” Twombly, 550 U.S. at 

555 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the facts alleged in the complaint 

“must be enough to raise a right to relief above the speculative level.” Id. at 555.

A motion to dismiss under Rule 12(b)(6) must rely solely on matters within the 

complaint, see Fed. R. Civ. P. 12(d), which includes statements adopted by reference as well as 

copies of written instruments joined as exhibits. Fed. R. Civ. P. 10(c).

III. Analysis

Our Circuit has held that “[t]o make out a violation [of the FACE Act] the Government

ha[s] to prove that the defendant[ ] 1) by physical obstruction, 2) intentionally 3) injured, 

intimidated or interfered with or attempted to injure, intimidate or interfere with any person, 4) 

because that person is or has been obtaining or providing reproductive health services.” United 

States v. Mahoney, 247 F.3d 279, 282 (D.C. Cir. 2001) (internal quotations omitted) (citing 18 

U.S.C. § 248(a)(1)). Retta challenges the sufficiency of the Government’s pleadings in three

respects. First, he contends that the Government was required to — and did not — plead that the 

patient and the escorts were in fact obtaining or providing reproductive health services. Second, 

he asserts that the Government failed to plead facts establishing that Retta acted with the 

required motive. Finally, he insists that the Government cannot seek an award of liquidated 

damages. The Court will address each in turn.

A. Pleading Requirements Concerning the Alleged Victims
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Retta first argues that in order make out a claim under the FACE Act the Government

must plead that the victims in fact were or had been obtaining or providing reproductive health 

services. See Mot. at 13-17. The FACE Act, he contends, does not prohibit actions taken 

against individuals who are not seeking or providing such services. See id. Because the 

Complaint does contain such allegations, Retta asks that the Court dismiss the case. See id. The 

Government, in response, maintains that the statute requires only that Defendant believed that 

the patient and the escorts were obtaining and providing reproductive health services. See Opp. 

at 4-8. As it has so alleged, it argues that the Court should deny Defendant’s Motion. The 

question is thus whether the Government must allege both that the victims were actually 

recipients or providers and that Defendant so believed or merely the latter. The Court ultimately 

agrees with the Government that the latter is sufficient, particularly where, as here, such belief 

was reasonable.

The FACE Act prohibits individuals from committing certain intentional acts against 

“any person because that person is or has been, or in order to intimidate such person or any other 

person or class of persons from, obtaining or providing reproductive health services.” 18 U.S.C. 

§ 248(a)(1). This language is admittedly somewhat ambiguous. Although our Circuit has not 

directly addressed the question posed above, it has interpreted this portion of the statute to 

institute a “motive requirement,” pursuant to which a FACE Act plaintiff must show that the 

alleged perpetrator “engag[ed] in proscribed conduct ‘because’ a person is obtaining or providing 

reproductive health services.” Terry, 101 F.3d at 1420; see also Mahoney, 247 F.3d at 282-83. 

The Terry panel’s labeling of this element as a “motive requirement,” coupled with its 

emphasizing the word “because,” suggests its focus was the defendant’s subjective state of mind, 

not the victim’s status or conduct. 
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Other courts that have interpreted this portion of the statute have also focused on the 

defendants’ motives for acting rather than on the victims’ conduct or status. For example, in 

United States v. Balint, 201 F.3d 928, (7th Cir. 2000), the Seventh Circuit found that “the 

defendants’ concession that they wanted to protect fetuses, [one defendant’s] commitment to the 

pro-life cause and the Clinic’s notoriety as an ongoing provider of abortion services” was 

sufficient to establish motive. Id. at 934. The panel did not consider whether the targets of the 

defendants’ obstruction were in fact seeking to obtain or provide reproductive health services, 

finding it sufficient that the defendants had acted with the intent to prevent the provision of such 

services in the future. See id. at 932-34. In New York ex rel. Spitzer v. Cain, 418 F. Supp. 2d 

457 (S.D.N.Y. 2006), a district court in the Second Circuit referred to the “because” language in 

the statute as an “intent element” and found it satisfied because the goal of the defendants was 

“to discourage women from getting abortions.” Id. at 474-75. Finally, a district court in the 

Third Circuit, United States v. Gregg, 32 F. Supp. 2d 151 (D.N.J. 1998), held that “the United 

States ha[d] satisfied its burden” to show that the defendants had acted “because the [clinic] 

provides, and its patients obtain, reproductive health services” by establishing that they were 

“motivated by their desire to stop abortions from occurring.” Id. at 157. While these cases did 

not directly address the issue raised here — whether the targets of the defendants’ conduct must 

have been providing or obtaining reproductive health services as a matter of fact — their 

treatment of the relevant statutory language as imposing an intent requirement, and not a 

requirement regarding the victim’s status, is consistent with the Government’s position here.

In addition, because the FACE Act was consciously “modeled on several Federal civil 

rights laws,” S. Rep. No. 103-117, at 17, 18, 24-25 (1993); see also H.R. Rep. No. 103-306, at 10 

(1993); Terry, 101 F.3d at 1420-21 (analogizing the FACE Act’s motive element to that of other 
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civil rights statutes), it is worth noting that other such statutes using similar language have also 

been interpreted to focus on the defendant’s mindset, not the victim’s status or conduct. For 

example, Title VII’s anti-retaliation provision is parallel to the relevant portion of the FACE Act. 

Compare 42 U.S.C. § 2000e-3(a) (prohibiting discrimination against an individual “because [that 

individual] has opposed any practice made unlawful employment practice by this subchapter” 

(emphasis added)) with 18 U.S.C. § 248(a)(1) (prohibiting physical obstruction of an individual 

“because that person is or has been . . . obtaining or providing reproductive health services” 

(emphasis added)). Another court in our Circuit has recently held that the anti-retaliation 

provision “focuses on the employer’s subjective reasons for taking adverse action against an 

employee. Thus, it matters not whether the reasons behind the employer’s discriminatory 

animus are actually correct as a factual matter.” Johnson v. Napolitano, 686 F. Supp. 2d 32, 35 

(D.D.C. 2010) (internal quotation marks and alterations omitted) (quoting Fogleman v. Mercy 

Hosp., Inc., 283 F.3d 561, 571 (3d Cir. 2002)). Courts have regularly interpreted the National 

Labor Relations Act and the Fair Labor Standards Act in the same way. See, e.g., Fogarty v. 

Boles, 121 F.3d 886, 891 (3d Cir. 1997) (“[T]he discharge of employees under the mistaken 

impression that they had participated in protected statutory activity is enough to violate the 

Acts.”); Saffels v. Rice, 40 F.3d 1546, 1549-50 (8th Cir. 1994) (same); NLRB v. Parr Lance 

Ambulance Serv., 723 F.2d 575, 580 (7th Cir. 1983) (same). 

Interpreting the statute to require that Defendant believed his alleged victims to have 

been obtaining or providing reproductive health services, but not necessarily that they were in 

fact doing so, also makes sense. Under Retta’s reading, a defendant could intimidate a person 

entering a clinic that provides reproductive health services but escape liability if he was mistaken 

in believing that his target was obtaining or offering reproductive health services. This would 
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contravene the purpose of the statute, which, as its very title demonstrates, is to keep clinic 

access unimpeded. Retta, furthermore, does not cite any cases or other authority in support of 

his contention that the statute should be read to require that the victims were in fact obtaining or 

providing reproductive health services. See Mot. at 13-17.

Retta counters by proffering another hypothetical: “If the United States is correct, then 

an individual standing outside a[] coffee shop . . . who engages in obstructive conduct because . . 

. in her deluded condition she believes that coffee house customers are, in fact, reproductive 

health care patients of a covered facility, would be in violation of the FACE Act, despite 

Congress’ effort to craft a remedy to insure access to ‘clinic entrances.’” Reply at 5. Perhaps a

case in which a defendant held an unreasonable belief that his targets were obtaining 

reproductive health services might present a different question. Here, however, it is clear that 

Retta’s beliefs were reasonable because the Clinic was in fact providing such services. See

Compl., ¶ 7. 

Ultimately, the Court concludes that the statute focuses on the defendant’s motive, not 

the targets’ conduct. A FACE Act complaint, therefore, need only contain allegations 

establishing that a defendant acted under the belief that his alleged victims were obtaining or 

providing reproductive health services; allegations that they were in fact doing so, accordingly, 

are not required. 

That said, this debate would have been unnecessary had the Government simply alleged 

that the patient herself was obtaining reproductive health services and that the escorts’ duties 

(which are never fully explained) constituted provision of such services. To fortify its argument, 

the Government may wish to amend its Complaint in these areas. Even if it chooses not to do so, 

however, its allegations clear — if not by much — the pleading bar set by Rule 8(a).
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B. Sufficiency of Allegations Regarding Defendant’s Motivation

Although the Government need not plead that the alleged victims were obtaining or 

providing reproductive health services, it must still satisfy the statute’s “motive requirement,” 

which requires that Defendant engaged in the obstructive acts because of his belief that his 

targets were obtaining or providing such services. See 18 U.S.C. § 248(a); Mahoney, 247 F.3d at 

282-84; Terry, 101 F.3d at 1420. As discussed in Part III.A., supra, this is a subjective inquiry. 

Retta contends that the Government failed to make out a claim because its Complaint “omits any 

factual allegations regarding the motivation of the Defendant.” Mot. at 17. He insists that 

although the Complaint contains a “bare legal conclusion” concerning Retta’s motivation, it does 

not contain factual assertions sufficient for a factfinder to infer that he held the required motive. 

See Mot. at 18-19. The Court disagrees. 

What Retta dismisses as a “legal conclusion” states that Defendant interfered with his 

targets “because they were or had been providing or obtaining reproductive health services, or in 

order to intimidate such persons from providing or obtaining reproductive health services at the 

Planned Parenthood of Metropolitan Washington.” Compl., ¶ 27. In addition, the Complaint 

alleges that Retta has a history of aggressive protest activity at the Clinic. See id., ¶¶ 8-15. For 

more than a decade, the Government asserts, Retta has been a vocal anti-abortion protestor who 

“frequently walks very closely beside patients as they walk to the Clinic,” id. at ¶ 8, and 

“continues to yell” at patients even “as the door closes.” Id., ¶ 12. In this particular instance, the 

Complaint states that Retta “yelled at the escorts that they should not be escorting the patient into 

the Clinic” and “yelled to the patient, ‘Don’t go in there. Don’t let them kill your baby.’” Id., ¶¶ 

19, 22. 
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The notice pleading rules are “not meant to impose a great burden on a plaintiff,” Dura 

Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and he or she must thus be given every 

favorable inference that may be drawn from the allegations of fact. See Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 584 (2007). These factual assertions, taken as true, suffice to support 

the Government’s inference that Retta was in fact motivated by his belief that his targets were 

obtaining or providing reproductive health services. Cf., e.g., Gregg, 32 F. Supp. 2d at 157 

(finding defendants’ statements expressing their opposition to abortion and engaging in blockade 

during anti-abortion protest to be sufficient to demonstrate motive). If Retta wishes to argue that 

he did not in fact have the requisite motivation, he may of course do so; the allegations contained 

in the Complaint, however, suffice to state a claim upon which relief can be granted. 

C. Liquidated Damages

Retta’s final argument concerns remedy. In its prayer for relief, the Government asks

that the Court award “statutory compensatory damages of $5,000 to the three victims.” Compl. 

at 6-7. Retta argues, however, that although the statute allows private plaintiffs to seek a 

liquidated damages award of $5,000, Congress did not authorize the Attorney General to do so. 

See Mot. at 19-20. 

As a preliminary matter, the Government rightly points out that this argument is not 

appropriately proffered in a 12(b)(6) Motion to Dismiss. See Simba v. Fenty, 754 F. Supp. 2d 

19, 23 (D.D.C. 2010) (stating that Rule 12(f) Motion to Strike, not Rule 12(b)(6) Motion to 

Dismiss, is appropriate means of challenging remedy). Like the Government, therefore, the 

Court will interpret this portion of the Motion as a Motion to Strike. 

In an action brought by an aggrieved individual, the FACE Act provides that “the court 

may award appropriate relief, including . . . compensatory . . . damages . . . . With respect to 
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compensatory damages, the plaintiff may elect, at any time prior to the rendering of final 

judgment, to recover, in lieu of actual damages, an award of statutory damages in the amount of 

$5,000 per violation.” 18 U.S.C. § 248(c)(1)(B). In an action, like this one, brought by the 

United States, the statute states that “the court may award appropriate relief, including . . . 

compensatory damages to persons aggrieved as described in paragraph (1)(B).” Id. § 

248(c)(2)(B). Retta argues that because “Congress provided the liquidated damage remedy in 

subsection (c)(1)(B) and omitted it in subsection (c)(2)(B),” the Court should conclude that the 

Government is precluded from electing the statutory damage award. See Mot. at 20.

The plain language of § 248(c)(2)(B), which details the remedies available in suits 

brought by the United States, however, incorporates the liquidated damages provision of 

§ 248(c)(1)(B). It expressly provides that the Attorney General may seek “compensatory 

damages to persons aggrieved as described in paragraph (1)(B).” 18 U.S.C. § 248 (c)(2)(B) 

(emphasis added). With this language “Congress plainly meant to incorporate all of the text 

relevant to compensatory damages as set out in § 248(c)(1)(B).” United States v. Gregg, 226 

F.3d 253, 260 (3d Cir. 2000). Otherwise, why refer to § 248(c)(1)(B) at all? 

The Third Circuit came to the same conclusion in Gregg, 226 F.3d at 260 (statute 

provides Government may “elect an award of statutory damages”), and Retta points to no court 

that has held otherwise. The legislative history, moreover, is consistent with this reading. See, 

e.g., H.R. Rep. No. 103-106, at 3 (1993) (“The Act authorizes the U.S. Attorney General . . . to 

bring civil causes of action on behalf of aggrieved persons for the same relief available in private 

actions.”); see also S. Rep. No. 103-117, at 22 (1993). 

The Court, therefore, finds that the FACE Act permits the United States to seek statutory 

compensatory damages on behalf of aggrieved individuals.
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IV. Conclusion

For the foregoing reasons, the Court ORDERS that:

1. Defendant’s Motion to Dismiss is DENIED; and

2. He shall file an Answer on or before January 24, 2012.

SO ORDERED.

 /s/ James E. Boasberg 

 JAMES E. BOASBERG

 United States District Judge

Date: January 10, 2012