United States v. Philip Morris USA Inc.

dissenting.

Congress passed the Organized Crime Control Act of 1970, which included RICO, “to seek the eradication of organized crime in the United States ... by providing enhanced sanctions and new remedies to deal with the unlawful activities of those engaged in organized crime.” United States v. Turkette, 452 U.S. 576, 589, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981) (quoting Pub.L: No. 91-452, 84 Stat. 922, 923 (1970)). Through this lawsuit, the United States seeks to end what it perceives as *1208rampant racketeering violations within the tobacco industry. Specifically, the government offers voluminous evidence, which we must view in the light most favorable to it, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (stating that at summary judgment the “evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [its] favor”), that Philip Morris, Altria Group, R.J. Reynolds, Brown & Williamson, Lorillard, BATCo, and Liggett have engaged in a half century of deceptive practices to the detriment of the health — and lives — of their customers. Acting both individually and in concert through collective agreements and jointly funded organizations like the Council for Tobacco Research and the Tobacco Institute (also defendants), these companies publicly defended smoking as both harmless and nonaddictive despite knowing from internal research that it was neither. In their advertising campaigns the companies targeted young people, who “often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them,” Bellotti v. Baird, 443 U.S. 622, 635, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979), despite publicly claiming otherwise.

The government alleges that during the course of this behavior, the defendants committed over ninety racketeering violations between RICO’s 1970 effective date and the government’s 1999 complaint. Significantly for this appeal, the government further claims that absent court intervention and despite the master settlement agreement between the tobacco companies and the states, the companies are likely to continue their deceptive practices and commit further racketeering violations in the future. The government’s claim regarding likely future conduct rests not only on the companies’ alleged history of deceptive activities, but also on record evidence that the companies continue making their misleading statements about both the health consequences of smoking and the addictive nature of nicotine, as well as persisting in their marketing efforts aimed at young people. The government asks the district court to enjoin the tobacco companies from future unlawful conduct and to order them to disgorge the profits they have earned due to their racketeering violations since RICO’s effective date — profits the government estimates amount to $280 billion.

In now holding that district courts may never order disgorgement as a remedy for RICO violations, this court ignores controlling Supreme Court precedent, disregards Congress’s plain language, and creates a circuit split — all in deciding an issue not properly before us. Because the tobacco companies ask us to address an issue not fairly included in the certified order and not presented at that time to the district court, I would dismiss this interlocutory appeal. Were it appropriate to reach the merits, I would uphold the district court’s denial of summary judgment on either of two grounds. First, unless “a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity,” district courts may grant any equitable relief. Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946). Because under a fair application of Supreme Court precedent, see id. at 398-403, 66 S.Ct. 1086, no such inference can be drawn about RICO, I would conclude that the district court has authority to order disgorgement. Alternatively, even if RICO’s phrase “prevent and restrain violations,” 18 U.S.C. § 1964(a), limits the district court’s equitable jurisdiction, I would still uphold the denial of summary judgment because the government has presented evi*1209dence that disgorgement will accomplish just that purpose in this case.

I.

Under 28 U.S.C. § 1292(b), if a district court “shall be of the opinion that [an] order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation,” it may certify the order for interlocutory review, and the court of appeals “may thereupon, in its discretion, permit an appeal to be taken from such order.” Section 1292(b) establishes a “two-tiered arrangement.” Swint v. Chambers County Comm’n, 514 U.S. 35, 47, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). Congress “chose to confer on district courts first line discretion to allow interlocutory appeals,” id., and “even if the district judge certifies the order under § 1292(b), the appellant still has the burden of persuading the court of appeals that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment,” Coopers & Lybrand v. Livesay, 437 U.S. 463, 475, 98 S.Ct. 2454,'. 67 L.Ed.2d 351 (1978) (internal quotation marks and citation omitted). In accepting this interlocutory appeal, this court not only (at the least) pushes the bounds of its jurisdiction, but also exercises its discretion on behalf of defendants whose litigating tactics leave much to be desired.

A.

In 2000, the tobacco eompanie,s^-usually referred to in this opinion as “Philip Morris”- — -filed a motion to dismiss, arguing (among other things) that “disgorgemépt ... is never available under a civil RICO count.” See United States v. Philip Morris Inc., 116 F.Supp.2d 131, 150 (D.D.C. 2000). Denying that motion, the district court held that' disgorgement could be available under 18 U.S.C. § 1964(a), but did not ‘ address whether disgorgement would be available in this particular case. See id. at 150-52. Philip Morris never sought certification of that order, though it could have done so at any time after the order’s issuance. See Fed. R. App. P. 5(a)(3) (providing that the time for filing an appeal runs from when the district court amends the order to include certification, not from the issuance of the actual order); 16 Wright, Miller & Cooper, Federal Practice and Procedure § 3929 (2d. ed.1996) (“This latitude [in Rule 5(a) ] makes it possible to employ § 1292(b) with some precision, deferring the question of appeal until it.is clear that prompt appeal is apt to be useful.”).

In 2004, Philip Morris sought summary judgment regarding the government’s request for disgorgement in this case. Contrary to the court’s statement, see majority op. at 1193, Philip Morris neither reargued the position it took in 2000 nor asked the district court to revisit its 2000 decision. Philip Morris’s only reference to its prior position came in a one-sentence footnote: “As noted previously, Defendants respectfully disagree with the Court and maintain that disgorgement in any fashion is unavailable to the Government in a civil RICO action.” Defs.’ Br. in Supp. Mot. Partial Summ. J. at 6 n.4. Instead, Philip Morris urged the court to grant its motion for summary judgment for two primary reasons. First, relying on United States v. Carson, where the Second Circuit held that district courts may order disgorgement as a RICO remedy only where the gains “are being used to fund or promote the illegal conduct,. or constitute capital available for that purpose,” id. at 20 (quoting United States v. Carson, 52 F.3d 1173, 1182 (2d Cir.1995)), Philip Morris claimed *1210that 18 U.S.C. § 1964(a) “limits disgorgement to the amount of ill-gotten gains that remain available to defendants to fund future RICO violations,” id. Philip Morris further argued that “the Government deliberately has refused to develop the proof properly required under Carson ” and this in turn “requires dismissal of the Government’s disgorgement claim.” Id. at 25. Second, Philip Morris asserted that the government’s disgorgement model fails as a matter of law to reasonably approximate the defendants’ ill-gotten gains.

The district court rejected both arguments and denied summary judgment to Philip Morris. United States v. Philip Morris USA, Inc., 321 F.Supp.2d 72 (D.D.C.2004). Interpreting section 1964(a) more broadly than had the Second Circuit, the court concluded that it could order disgorgement in situations besides those identified in Carson. Id. at 77-79. Unsurprisingly, the district court did not revisit its 2000 decision, observing only (in a footnote) that this decision had held “that disgorgement is a permissible remedy under Section 1964(a).” Id. at 76 n. 7. The district court also rejected Philip Morris’s contention regarding the government’s disgorgement model. Id. at 81-82.

Philip Morris then asked the district court to certify its 2004 order under section 1292(b). In its certification request, Philip Morris did not reassert its legal argument from 2000. Instead, it stated that “[wjhether the Carson standard applies to the Government’s disgorgement claim is clearly a controlling question of law.... If the Government is wrong, and Carson applies, nothing is left of its claim in this case.” Defs Br. Supp. Mot. Certify Order # 550 for Interloc. App. at 4.

The district court agreed that a controlling question of law existed as to whether “the disgorgement allowed under 18 U.S.C. § 1964(a) is limited to those ill-gotten gains which are ‘being used to fund or promote the illegal conduct or constitute capital available for that purpose.’ ” United States v. Philip Morris USA, Inc., No. 99-2496, slip op. at 2-4, 2004 WL 1514215 (D.D.C. June 25, 2004) (quoting Carson, 52 F.3d at 1182). Although in its 2004 order the district court had rejected Carson’s interpretation of section 1964(a), it found substantial ground for difference of opinion on this issue, explaining that “it is obvious that the arguments to the contrary in Carson are neither insubstantial nor frivolous,” and certified the 2004 order. Id. at 4, 7.

In its initial petition urging this court to accept the interlocutory appeal, Philip Morris never raised the broader question the district court had addressed in 2000, i.e., whether disgorgement is ever available under section 1964(a). Instead, Philip Morris focused on the narrower issue actually raised in its 2004 motion for summary judgment, arguing that the district court had erred in rejecting Carson’s interpretation of section 1964(a) and claiming that “[i]f this Court agrees with the Second Circuit in Carson, its decision on appeal would dispose of the Government’s disgorgement claim.” Emergency Pet. for Permission to Appeal an Order at 9. The government opposed Philip Morris’s section 1292(b) petition, arguing that a host of factual issues would require resolution regardless of whether this court adopted Carson’s or the district court’s interpretation of section 1964(a) and thus that “interlocutory appeal would not materially advance the termination of this litigation.” Resp. in Opp’n to Emergency Pet. at 15.

Responding to the government’s opposition, Philip Morris suddenly changed tack and brought in play the issue decided in 2000. Philip Morris wrote:

The district court rejected [the government’s] argument [that an interlocutory *1211appeal would not materially advance the litigation’s termination] as a reason not to permit an appeal, and this Court should as well.

First, and most obviously, if this Court reverses the district court’s ruling that ‘disgorgement is a permissible remedy under section 1964(a),’ (Summary Judgment Order at 8 n.7), then the Government’s $280 billion claim is precluded as a matter of law.

Reply to Emergency Pet. for Permission to Appeal an Order at 5. This entirely disingenuous statement conveyed the,impression that the district court had ruled on this broader issue in the certified'2004 order rather than’ simply mentioning its 2000 decision. Moreover, by placing this statement under the heading “The District Court Properly Determined That an Appeal From Its Order Would Materially Advance This Litigation,” id., Philip Morris insinuated that the district court had certified this issue to this court as opposed to the narrower question actually resolved in the 2004 order. The government, of course, had no opportunity to correct these' misrepresentations, and a motions panel accepted Philip Morris’s appeal, expressly leaving the merits panel free to reconsider and dismiss the appeal. In re Philip Morris USA, Inc., No. 04-8005 (D.C.Cir. July 15, 2004).

Philip Morris’s opening brief on the merits reveals the scope of its bait and' switch. The brief devotes forty -pages to the issue decided in the 2000 order and only seven to the issues' decided in the certified 2004 order. In response, the government urges us to dismiss th.e appeal entirely, suggesting that we lack jurisdiction over the issue decided in the 2000 order and observing that “Defendants’ tactics subvert the mechanism for appeal established by section 1292(b).” Appellee’s Br. at 45-46.

B.

As the foregoing discussion indicates, Philip Morris asks us — and the court now agrees — to decide an issue (1) not briefed in the motion leading up to the certified order, (2) not decided in the district court’s opinion accompanying the certified order, (3) not raised by Philip Morris in its request for certification, (4) not discussed in the order granting certification, (5) not raised by Philip Morris in its section 1292(b) petition before this court, and (6) decided in an entirely different order which Philip Morris could at any time have asked the district court to certify. This presents serious questions on.two separate fronts: our jurisdiction over this appeal under section 1292(b), and our general policy of declining to.consider arguments not made to the district court in the motion leading to the order.under appeal. Unlike the court, I cannot brush these concerns aside.

Regarding our jurisdiction under section 1292(b), the Supreme Court has made clear that an appellate court can review “any issue fairly included within the certified order” because “[a]s the text of § 1292(b) indicates, appellate jurisdiction applies to the order certified to the court of appeals, and is not tied to the particular question formulated by the district court.” Yamaha Motor Corp., USA v. Calhoun, 516 U.S. 199, 205, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996) (holding that where the district court decided two issues in the certified order but identified only the damages issue as the controlling question of law, the court of appeals could nonetheless address the other issue). But the “court of appeals may not reach beyond the certified order to address other orders made in the case.” Id.; see also United States v. Stanley, 483 U.S. 669, 677, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (holding that the *1212court of appeals erred in addressing a claim not raised in the certified order though closely related to it). Both “[c]om-mentators and courts have consistently observed that ‘the scope of the issues open to the court of appeals is closely limited to the order appealed from [and][t]he court of appeals will not consider matters that were ruled upon in other orders.’ ” Stanley, 483 U.S. at 677, 107 S.Ct. 3054 (quoting 16 Wright, Miller, Cooper & Gressman, Federal Practice and Procedure § 3929 (1977)) (second and third alterations in original).

This case falls near the intersection of these commands. For all intents and purposes, Philip Morris asks us to address the 2000 order. Today’s decision overturns that order. This court has jurisdiction to do this under Yamaha only if the issue addressed in the 2000 order is “fairly included within the certified order.” Taking a broad view of “fairly included,” the court concludes that because the 2004 order denies dismissal of the government’s disgorgement claim, we may review (at a minimum) any basis for summary judgment that is “logically interwoven with the explicitly identified issue.” See majority op. at 1196. This approach not only gives us jurisdiction over the issue decided by the district court in the 2000 order, but also over the district court’s 2002 determination, made in denying Philip Morris’s motion for a jury trial, that disgorgement is an equitable remedy rather than a legal one, United States v. Philip Morris, Inc., 273 F.Supp.2d 3, 8-11 (D.D.C.2002). Indeed, although the concurrence apparently does not share this approach, see sep. op. at 1206 (Williams, J., concurring), the majority opinion suggests that any issue which would result in “complete dismissal of the Government’s claim for disgorgement with prejudice” lies within our jurisdiction “regardless of the grounds the District Court gave for its decision,” see majority op. at 1194. By this logic, we may also have interlocutory jurisdiction to review the district court’s denial of the tobacco companies’ 2000 motion to dismiss, where they claimed that the government has not “adequately alleged that Defendants’ racketeering activity will continue into the future,” 116 F.Supp.2d at 147-50, and even the district court’s denial of Liggett’s 2000 motion to dismiss, where the company argued that (as to it) the government could not show two elements required for a RICO claim, id. at 152-53. Because victory for the tobacco companies on the first issue (and, for Liggett, victory on the second) could also trigger dismissal of the government’s disgorgement claims, under the court’s theory our interlocutory jurisdiction may extend to these issues as well.

The court’s approach is problematic in several respects. Most significantly, it curtails the district court’s section 1292(b) certification role. In this case, the district court had neither an opportunity to exercise “first line discretion to "allow interlocutory appeal[ ],” Swint, 514 U.S. at 47, 115 S.Ct. 1203, on the broader issue resolved in its 2000 order nor notice that Philip Morris would raise this issue with us. In future cases, district courts will lose them flexibility to certify discrete issues for review, since the certification of one order may give this court jurisdiction over all sorts of prior orders. Today’s situation illustrates this: under the court’s theory, we have jurisdiction in this interlocutory appeal to review at a minimum two prior orders, neither of which Philip Morris sought to certify. Moreover, by reducing the opportunity for tailored review, the court’s jurisdictional theory threatens this circuit with interlocutory overload. Parties who persuade us to accept an interlocutory appeal may feel encouraged to raise any or even all issues decided in prior *1213orders that fall within our newfound jurisdiction especially since, according to the court, issues raised in prior orders are “preserved” for section 1292(b) purposes, see majority op. at 1196, and not simply for the purpose of appeal after final judgment.

By contrast, no harm of consequence would result from holding, as I would, that the only issues “fairly included” within a certified order are those decided in the district court’s accompanying memorandum — exactly the situation with the issue reached by the Supreme Court in Yamaha, 516 U.S. at 203-05, 116 S.Ct. 619. There, the Court found “fairly included” an issue that the district court had resolved in the same opinion in which it decided the issue identified as the controlling question of law, see Calhoun v. Yamaha Motor Corp., USA, No. 90-4295, 1993 WL 216238 (E.D.Pa. June 22, 1993). While the Court did not explicitly rely on this point, it is relevant to determining whether Yamaha’s “fairly included” language stands for the proposition that appellate courts have interlocutory jurisdiction over all possible bases for reversing a summary judgment denial (as my colleagues read it) or only over bases which the district court considered and resolved in this denial (as I read it).

My approach, moreover, respects the Court’s instruction in Stanley that we should “not consider matters that were ruled upon in other orders.” 483 U.S. at 677, 107 S.Ct. 3054 (citation omitted); of. Briggs v. Goodwin, 569 F.2d 10, 25 (D.C.Cir.1977) (noting that any possible justification for addressing “all other issues relevant to the result reached by [a certified] order” would “be substantially diminished ... where the order certified for appeal is a separate order from the one [containing the other issues]”); Dinsmore v. Squadron, Ellenoff, Plesent, Sheinfeld & Sorkin, 135 F.3d 837, 840 (2d. Cir.1998) (finding that the certified order referred to rather than incorporated a prior order and concluding that no interlocutory jurisdiction existed over the issue decided in the prior order). It is thus hardly surprising that the court today points to no case in which an appellate court has exercised interlocutory jurisdiction over an issue decided in a different order -from the one under certification. True, under my approach a party seeking an interlocutory appeal on a matter split across two orders would need to seek certification of both orders to bring the matter fully to this court: But that seems a small burden. If the party fails to make this effort (as in this case) and we conclude that it would be inappropriate to address only the issues raised in the certified order (as I would here), then we have discretion under section 1292(b) to refuse to permit the interlocutory appeal altogether — a point this court-overlooks.

In addition to resting on a dubious interpretation of section 1292(b), the court’s decision to review the broader issue runs counter to this circuit’s general rules regarding waiver. Parties may raise here only .those arguments they presented to the district court in their papers seeking (and opposing) the order under review, since only in exceptional circumstances will we consider an argument not made to the district court. See United States v. British Am. Tobacco (Invs.) Ltd., 387 F.3d 884, 887-88 (D.C.Cir.2004) (finding waiver based on a party’s failure to appear and defend a privilege claim in the proceedings resulting in the interlocutory appeal, even though the party had asserted the privilege in a related proceeding in the same case); see also id. at 892 (refusing to consider argument not raised below) (citing United States v. Hylton, 294 F.3d 130, 135-36 (D.C.Cir.2002)). Here, as discussed earlier, Philip Morris never argued the broader issue in the relevant plead*1214ings; a sentence-long footnote stating “respectful disagreement” is not an argument, particularly when offered in such a cursory fashion. Cf, e.g., Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855, 869 (D.C.Cir.2001) (per curiam) (observing that a “litigant does not properly raise an issue by addressing it in a ‘cursory fashion’ with only ‘bare-bones arguments’ ”); Wash. Legal Clinic for the Homeless v. Barry, 107 F.3d 32, 39 (D.C.Cir.1997) (declining to address argument made in a footnote). Although it is true, as the court points out, that in the two just-cited cases the issues were apparently never raised at an earlier stage, here we are reviewing not the entire case but only the certified 2004 order, which sets the bounds of both our jurisdiction and waiver doctrine. Moreover, while we sometimes make exceptions to our waiver rules, I would not do so here given Philip Morris’s questionable tactics. Even under my colleagues’ jurisdictional theory, only by exercising our discretion to accept an argument not raised in the district court — -and further exercising our discretion to accept the interlocutory appeal— does the broader issue stand before us.

In sum, whether viewed in terms of jurisdiction or waiver, only Philip Morris’s narrower challenge is properly before us. True, this means we should dismiss the appeal altogether, as it makes little sense to decide the narrower question at this time when the broader question might be appealed later. But Philip Morris itself created this problem. It had several ways it could properly have brought the broader issue to our attention. In its 2004 motion for summary judgment, it could have rear-gued the broader question and asked the district court to reconsider its decision; the district court’s denial of reconsideration would have brought the issue fairly into the challenged order. Even more appropriately, Philip Morris could have asked the district court to certify both the 2000 and 2004 orders and candidly explained that it wished this court to review the earlier order as well. Either way, the district court, having fair notice that Philip Morris wanted to raise both issues with us, could have performed its section 1292(b) gatekeeping function. Taking neither approach, Philip Morris instead not only jumped the fence at the district court level, but also circumvented our own screening process by waiting until after the government’s opposition to raise the broader issue with the motions panel. This court should not be rewarding such tactics by exercising its discretion to hear this appeal. ¡

I would therefore dismiss the interlocutory appeal. I reach this conclusion reluctantly because I certainly understand how hearing this interlocutory appeal could be helpful to Judge Kessler, who is presiding over a long and difficult trial. In my view, however, preserving section 1292(b)’s integrity and discouraging the kind of litigating tactics reflected in this record far outweigh the efficiency that hearing this interlocutory appeal might produce in this concededly complex case.

But the court disagrees with my position. The appeal stands before us, so in the following sections I exercise a dissenter’s prerogative to address the merits. See, e.g., Gratz v. Bollinger, 539 U.S. 244, 291, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003) (Souter, J., dissenting); Arizona v. Evans, 514 U.S. 1, 18, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995) (Stevens, J., dissenting); Larson v. Valente, 456 U.S. 228, 258, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) (White, J., dissenting).

n.

Like my colleagues, I begin with the structure and language of RICO’s remedial provisions. RICO authorizes criminal *1215penalties and civil remedies against those engaging in patterns of racketeering behavior. 18 U.S.C. § 1963 sets out the criminal penalties: guilty persons shall “be fined under this title or imprisoned ... or both, and shall forfeit to the United States” any illegally -acquired interest. Section 1964 provides for the civil remedies. At issue in this case is subsection (a), which states:

The district courts of the United States shall have jurisdiction to prevent and restrain violations of section 1962 of this chapter by issuing appropriate orders, including, but not limited to: ordering any person to divest himself of any interest, direct or indirect, in any enterprise; imposing reasonable restrictions on the future activities or investments of any person, including, but not limited to, prohibiting any person from engaging in the same type of endeavor as the enterprise engaged in, the activities of which affect interstate or foreign commerce; or ordering dissolution or reorganization of any enterprise, making due provision for the rights of innocent persons.

Another subsection, § 1964(c), authorizes injured persons to sue RICO violators for treble damages and to recover attorneys’ fees. Finally, Congress directed that RICO “shall be liberally construed to effectuate its remedial purposes,” Pub.L. No. 91-452, § 904(a), 84 Stat. 922, 947 (1970) (codified, in a note following 18 U.S.C. § 1961) — a provision that, if it “is to be applied anywhere,, [should be applied] in § 1964, where RICO’s remedial purposes are most evident,” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 491 n. 10, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985).

The government argues that district courts have authority to order any remedy, including disgorgement, within their inherent equitable powers. More narrowly, the government argues that assuming -the district courts may only impose equitable remedies for the purpose of keeping defendants from committing RICO violations, disgorgement — by reducing the incentives for the tobacco companies to violate RICO in the future — will accomplish that purpose in this case. These two distinct arguments present very different- consequences for district courts: under the first theory, courts may order disgorgement any time they find the remedy necessary to ensure complete relief, while under the second theory courts may order disgorgement only to prevent ongoing or future violations. In this case, the district court accepted only the second argument. See 321 F.Supp.2d at 74-80. The court today rejects both. i -

A.

In dismissing the argument that district courts may impose any equitable remedy for RICO violations, the court distinguishes — unconvincingly, in my view — the two Supreme Court cases relied on by the government, Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946), and Mitchell v. Robert De-Mario Jewelry, Inc., 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960). I believe these two cases control this case and compel the conclusion that district courts may impose any equitable remedy for RICO violations.

In Porter, the Supreme Court considered whether a district court had authority to order restitution in a suit brought by the Price Control Administrator against a landlord-who had violated the Emergency Price Control Act (EPCA) by charging too much rent. The act contained no specific provision for restitution or disgorgement, but — like RICO — authorized a broad array of other remedies, both criminal and civil. On the criminal side, offenders could be fined and imprisoned. EPCA, § 205(b)-(c), 56 Stat. 23, 33 (1942). On the civil *1216side, injured individuals could sue for treble damages plus attorneys’ fees, and if they were not entitled to sue or the statutory period for their suit had passed, the Administrator could sue for the same remedy on behalf of the United States. Id. § 205(e), 56 Stat. at 34, as amended by Stabilization Extension Act of 1944, § 108(b), 58 Stat. 632, 640-41. The Administrator could also sue to suspend a violator’s license. Id. § 205(f)(2), 56 Stat. at 35.

In the section most at issue in Porter, the act further provided that

[wjhenever in the judgment of the Administrator any person has engaged or is about to engage in [violations of the act], he may make application to the appropriate court for an order enjoining such acts or practices, or for an order enforcing compliance with such provision, and upon a showing by the Administrator that such person has engaged or is about to engage in any such acts or practices a permanent or temporary injunction, restraining order, or other order shall be granted without bond.

Id. § 205(a), 56 Stat. at 33. Although this section clearly authorized injunctions aimed at future behavior, it made no express provision for restitution and did not, contrary to my colleagues’ suggestion, explicitly “grant[ ] general equitable jurisdiction” to the district courts, see majority op. at 1197. Indeed, in Porter, the Eighth Circuit had held that district courts were without authority to order restitution as a remedy for violations of the EPCA. Bowles v. Warner Holding Co., 151 F.2d 529, 532 (8th Cir.1945) (concluding that the district court had no authority to order restitution because “[i]t is well settled ‘That where a statute creates a right and provides a special remedy, that remedy is exclusive’ ”) (citations omitted).

The Supreme Court reversed. Discussing “the jurisdiction of the District Court to enjoin acts and practices made illegal by the Act and to enforce compliance with the Act,” 328 U.S. at 397-98, 66 S.Ct. 1086, the Court concluded' — -and I quote at length since the language is so critical to the disposition of this c