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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 20, 2003 Decided May 6, 2003

No. 02-5103

& No. 02-5104

UNITED STATES OF AMERICA,

APPELLEE

v.

OLIVIA A. ALAW, ET AL.,

APPELLEES

MARK H. GABRIEL, HOWARD S. HELDRETH, AND

PATRICK J. MAHONEY,

APPELLANTS

Appeals from the United States District Court

for the District of Columbia

(No. 98cv01446)

James Matthew Henderson, Sr. argued the cause for appellants. With him on the briefs was Richard P. Caro.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Kevin Russell, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief was

Jessica D. Silver, Attorney.

Before: SENTELLE, HENDERSON and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge: The district court issued the

injunction in this case following our order to vacate and

remand its initial injunction in United States v. Mahoney, 247

F.3d 270, 279 (D.C. Cir. 2001). In that case, we upheld the

district court’s decision to issue an injunction against the

defendants who had violated the Freedom of Access to Clinic

Entrances Act, 18 U.S.C. § 248 (2000), by obstructing entrances to a reproductive health facility in the District of

Columbia during an anti-abortion protest on January 24,

1998. However, we found the resulting injunction to be

constitutionally overbroad, and remanded it to the district

court for correction. The district court entered the injunction

at issue in this appeal on January 17, 2002. See United

States v. Alaw, 180 F. Supp. 2d 197 (D.D.C. 2002). We

uphold the injunction with the exception of Part C. Because

we find that element does not conform to the requirements

set out in our prior decision, we vacate and remand to the

district court that portion of the injunction.

Background

We reviewed the facts underlying the imposition of the

initial injunction in our prior opinion, and because those facts

have not changed during the intervening years, we will only

summarize them briefly here. On January 24, 1998, the

defendants participated in a demonstration marking the twenty-fifth anniversary of Roe v. Wade, 410 U.S. 113 (1973), at

the Capitol Women’s Center, a now defunct reproductive

health facility in the District of Columbia. The clinic had

three entrances, a north and south walkway; and a back

alley. During the course of the demonstration, several defendants knelt on the south walkway in front of the clinic,

praying. Shortly thereafter, officers of the Metropolitan

Police Department cordoned off the front of the clinic, includ-
3

ing the walkways, with police tape. Even after repeated

warnings by police officers, some demonstrators continued to

occupy the cordoned-off areas and the walkways, both kneeling and standing. Finally, police arrested demonstrators who

were inside the cordoned-off areas on a charge of ‘‘incommoding’’ in violation of D.C. Code Ann. § 22–1107. Each arrestee

was released after pleading guilty and paying a $50.00 fine.

The United States later brought an action in federal district

court, charging the defendants with violating the Access Act,

18 U.S.C. § 248, and seeking an injunction.

After a two-day trial, the district court ruled in favor of the

government and entered a permanent injunction. The injunction precluded the defendants from:

1. Standing, sitting, lying or kneeling in front of

entrances to reproductive health facilities, or otherwise physically blockading or obstructing access to

reproductive health facilities, located within the

boundaries of Interstate 495, popularly known as the

Capital Beltway;

2. Attempting, inducing, directing, aiding, or abetting in any manner, others to take any of the actions

described in paragraph 1 above, or any actions that

would violate the Freedom of Access to Clinic Entrances Act, 18 U.S.C. § 248;

3. Coming within a twenty-foot-radius of any reproductive health facility located within the boundaries of Interstate 495;

4. ‘‘Reproductive health facility’’ means any hospital, clinic, physician’s office, or other facility that

provides medical, surgical, counseling, or referral

services relating to the human reproductive system,

including services relating to pregnancy, or the termination of pregnancy. 18 U.S.C. § 248(e)(1 & 5).

The defendants appealed the district court’s decision. Although we affirmed the court’s finding of the defendants’

liability under the Act, we remanded the injunction because

we found it unconstitutionally overbroad in several specific
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ways. See Mahoney, 247 F.3d at 287. The first problem we

noted with the injunction was the facial lack of correlation

between the provision restricting the defendants from coming

within a twenty-foot radius around ‘‘reproductive health facilities’’ and the claimed government interests. Id. at 286. We

found that the definition of the covered facilities was ‘‘extraordinarily broad,’’ and ‘‘[o]n its face would have prevented a

female defendant from visiting the offices of a gynecologist or

obstetrician, even for the purpose of receiving medical care.’’

Id. We also expressed concern that the injunction could be

violated unknowingly because it contained no intent requirement, and therefore, a defendant might violate the injunction

by simply wandering within twenty feet of a covered facility.

Id. We noted, ‘‘we cannot see how this sort of liability

without fault is necessary to promote the government interests.’’ Finally, we found that the injunction inadequately

addressed the issue of how the injunction applies when the

covered facility is in a multi-story building, or a building

containing facilities other than those covered by the injunction. Id. at 286–87. Although we did not reject the appropriateness of the imposition of an injunction in this case, we

vacated the injunction and remanded the case to the district

court for correction.

On October 11, 2001, the government filed a Motion For

Entry of Order on Remand, asking the district court to enter

a new injunction consistent with our opinion in Mahoney.

The defendants filed oppositions, but submitted no new evidence and no party requested an evidentiary hearing. The

defendants again argued that they had not violated the Act

and that their conduct fell within the First Amendment’s

protection. In addition, the defendants argued that no injunction should issue because there was no risk of further

violations. On January 17, 2002, the district court found it

necessary to issue an injunction, modified in response to our

opinion. See United States v. Alaw, 180 F. Supp. 2d 197.

The new injunction enjoins the defendants from:

a. Intentionally standing, sitting, lying or kneeling

in front of entrances to any facility where abortions
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are performed, or otherwise physically blockading or

obstructing access to such facilities, located within

the boundaries of Interstate 495, popularly known as

the Capital Beltway;

b. Intentionally attempting, inducing, directing,

aiding, or abetting in any manner, others to take any

of the actions described in paragraph (a) above;

c. Intentionally coming within a twenty-foot radius

of any facility where abortions are performed that is

located within the boundaries of Interstate 495; it is

further

ORDERED, that if an office where abortions are

performed is located in a building housing one or

more offices where abortions are not performed,

Defendants’ compliance with paragraph (b) above

shall be determined with reference to his or her

distance from the entrances and exits of the office

where abortions are performed TTT

The defendants now appeal this new version of the injunction.

Analysis

First, most of the issues presented by the defendants are

not properly before this Court, including the necessity of the

injunction and its alleged unconstitutional overbreadth and

vagueness violations of the First Amendment. In the prior

appeal in this case, we affirmed the appropriateness of injunctive relief as to these defendants, as well as the district

court’s finding that the defendants were liable under the

Access Act. See Mahoney, 247 F.3d at 282–86. Therefore,

those issues are barred by law of the case doctrine, which

refers to the concept that, ‘‘[w]hen there are multiple appeals

taken in the course of a single piece of litigation, law-of-thecase doctrine holds that decisions rendered on the first appeal

should not be revisited on later trips to the appellate court.’’

Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C.

Cir. 1995). In addition, the law of the circuit doctrine applicable here prevents a new appellate panel from declining to
6

follow the legal rulings of the panel in a prior appeal. See

LaShawn v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996). We

stated in Mahoney that ‘‘[w]e do not reject the proposition

that an injunction may be appropriate in this case to ensure

that women in the Washington, D.C. metropolitan area can

continue to exercise their constitutional rights.’’ Mahoney,

247 F.3d at 287. Therefore, we will not revisit the issues

raised in regard to the district court’s imposition of an

injunction in this case, as we have already affirmed the

appropriateness of that decision. Furthermore, several additional issues raised by the defendants are deemed waived,

either because they could have been brought during the prior

appeal and were not, or because they could have been raised

before the district court in this case, and were not. The

defendants have thus forfeited their right to bring these

claims in the instant appeal, most of which lacked merit in

any case. See Palmer v. Kelly, 17 F.3d 1490, 1495–96 (D.C.

Cir. 1994).

We therefore turn our attention to the newly issued injunction. As we noted in the prior appeal, injunctions against

speech have long been disfavored. See Mahoney, 247 F.3d at

285 (citing Near v. Minnesota, 283 U.S. 697 (1931)). The

Supreme Court has determined that the validity of ‘‘contentneutral’’ injunctions regulating anti-abortion protests are to

be tested under the First Amendment by determining

‘‘whether the challenged provisions of the injunction burden

no more speech than necessary to serve a significant government interest.’’ Mahoney, 247 F.3d at 286 (quoting Madsen

v. Women’s Health Ctr., Inc., 512 U.S. 753, 763 n.2 (1994)).

The government interests here continue to be: ensuring

public safety, protecting the free flow of traffic, protecting

property interests, and ensuring the freedom of access to

reproductive health services. See Mahoney, 247 F.3d at 286.

The question regarding this injunction remains whether it

burdens more speech than necessary.

The district court satisfied the requirements of our remand

order in several ways. The narrowing of covered facilities

from ‘‘reproductive health facilities’’ to those ‘‘where abortions are performed’’ sufficiently cures the overbreadth of the
7

prior injunction on that point. Additionally, the new injunction properly clarifies the scope of the injunction as it applies

to multi-story buildings, or buildings containing facilities other than those covered by the injunction. However, the new

injunction fails to cure the intentionality problem we pointed

out in our prior decision. Paragraph (c) of the new injunction

attempts to address this problem by inserting the word

‘‘intentionally’’ into the wording of the vacated injunction.

This addition does not fully correct the flaw.

The example we used in our prior opinion remains relevant.

We stated then that one of the principal problems with the

lack of an intentionality element in the injunction was that,

‘‘[w]henever a defendant wandered within twenty feet of a

covered facility he would be in technical violation of the

injunction.’’ Mahoney, 247 F.3d at 286. We then ordered

that, ‘‘[s]ome element of intent must be inserted in the

injunction in order to avoid curtailing legitimate activities like

walking down the street.’’ Id. As the injunction could be

read, if a defendant was intentionally walking down the street

and the sidewalk happened to be within twenty feet of a

covered facility, he would violate the injunction, even if he had

no knowledge of the covered facility’s presence. Thus, the

mere insertion of the word ‘‘intentionally’’ does not address

the issue we raised previously, and we therefore remand the

discrete offending paragraph (c) once again to the district

court.

The government relies on two Supreme Court cases, both

of which upheld the constitutionality of a fixed buffer zone in

injunctions against anti-abortion protestors, Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994), and Schenck v.

Pro–Choice Network of Western New York, 519 U.S. 357

(1997). Neither of these cases supports the issuing of an

injunction which creates a violation by merely passing

through a fixed buffer zone as untailored as the one created

here. First, in Madsen, the buffer zone was specifically

tailored to one particular clinic, and the injunction described

very specific activities prohibited within the thirty-six foot

buffer zone. See Madsen, 512 U.S. at 759–60. In this case,

the fixed buffer zone is not tailored to a particular site, and
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the injunction describes the prohibited activities in only the

most general terms, ‘‘coming within a twenty-foot radius of a

covered facility.’’ The buffer zone in the instant case is far

more analogous to the one approved in Schenck, a fifteen-foot

zone around the entrances of covered facilities in Western

New York. The comparable provision in the Schenck injunction states that the enjoined parties were prohibited from:

(b) demonstrating within fifteen feet from either

side or edge of, or in front of, doorways or doorway

entrances, parking lot entrances, driveways and

driveway entrances of such facilities, or within fifteen feet of any person or vehicle seeking access to

or leaving such facilities, except that the form of

demonstrating known as sidewalk counseling by no

more than two persons as specified in paragraph (c)

shall be allowed;

Schenck, 519 U.S. at 366 n.3.

The Schenck injunction specifies the prohibited activity as

‘‘demonstrating,’’ which has an inherent intentionality to it, in

contrast to the injunction in the instant case, which prohibits

merely ‘‘coming’’ within the buffer zone. Neither case supports a requirement that would prohibit defendants from

entering the protected zone either while unaware that it was

a protected zone or, knowing that it is, while performing an

innocent act such as merely walking down the street. Therefore, because that paragraph of the current injunction remains untailored by an appropriate intent-based limitation,

we once again remand it to the district court.

So ordered.