PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
POTOMAC ELECTRIC POWER COMPANY,
Plaintiff-Appellant,
v.
ELECTRIC MOTOR AND SUPPLY,
INCORPORATED; RALPH FORCE;
CHARLES M. RHODES, No. 00-2542
Defendants-Appellees,
and
DARRYL PRICE,
Defendant.
POTOMAC ELECTRIC POWER COMPANY,
Plaintiff-Appellee,
v.
ELECTRIC MOTOR AND SUPPLY,
INCORPORATED; RALPH FORCE;
CHARLES M. RHODES, No. 00-2557
Defendants-Appellants,
and
DARRYL PRICE,
Defendant.
Appeals from the United States District Court
for the District of Maryland at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-98-2519-S)
Argued: June 6, 2001
Decided: August 10, 2001
2 POTOMAC ELECTRIC POWER v. ELECTRIC MOTOR & SUPPLY
Before WILLIAMS, KING, and GREGORY, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge Williams wrote the opinion, in which Judge King and
Judge Gregory joined.
COUNSEL
ARGUED: James Patrick Gillece, Jr., MCGUIRE WOODS, L.L.P.,
Baltimore, Maryland, for Appellant. James Patrick Ulwick, KRA-
MON & GRAHAM, Baltimore, Maryland, for Appellees. ON
BRIEF: Robert R. Niccolini, MCGUIRE WOODS, L.L.P., Balti-
more, Maryland, for Appellant. Bruce L. Marcus, MARCUS & BON-
SIB, Greenbelt, Maryland, for Appellee Force; Paul F. Kemp,
CATTERTON, KEMP & GREENBERG, Rockville, Maryland, for
Appellee Electric Motor.
OPINION
WILLIAMS, Circuit Judge:
Potomac Electric Power Co. (PEPCO) appeals the district court’s
grant of summary judgment to Electric Motor and Supply, Inc., Ralph
Force, and Charles Rhodes (collectively EMS) on its claims arising
under the private suit provisions of the Racketeer Influenced and Cor-
rupt Organizations Act (RICO), 18 U.S.C.A. § 1962, and EMS cross-
appeals from the district court’s failure to grant summary judgment
in EMS’s favor on the alternate ground of lack of proof of fraud and
its failure to dismiss the case on the ground of lack of "investment
injury." For the reasons that follow, we affirm in part, reverse in part,
and remand for additional proceedings.
POTOMAC ELECTRIC POWER v. ELECTRIC MOTOR & SUPPLY 3
I.
A.
PEPCO is an electric utility company serving the Washington, D.C.
metropolitan area. EMS is a privately held corporation whose busi-
ness is the repair of electric motors; its plant and office is in Altoona,
Pennsylvania. Ralph Force is the owner of EMS, and Charles Rhodes
is its Chief Engineer. From 1985 until 1996, EMS provided electric
motor repair services for PEPCO as a result of EMS’s successful bids
for PEPCO’s work. PEPCO generally sent its motors to EMS for
repair only after they failed. With rare exceptions, EMS returned the
motors to PEPCO in a repaired and working condition that passed
PEPCO’s internal inspection process. No evidence in the record indi-
cates that any of the motors repaired by EMS had failed as of Septem-
ber, 1999.
In March of 1994, PEPCO received an anonymous tip suggesting
that certain PEPCO employees had engaged in fraudulent bid-rigging
in conjunction with EMS employees. As a result, PEPCO commenced
an internal investigation that initially focused on bid-rigging but even-
tually broadened to include the issue of whether EMS had knowingly
failed to repair PEPCO’s motors pursuant to PEPCO’s specifications.
In August of 1994, PEPCO’s internal investigation concluded that
EMS had knowingly failed to perform PEPCO’s repairs as specified.
PEPCO principally alleges that its specifications required its
motors to be repaired using epoxy through a process called vacuum
pressure impregnation (VPI), and that two separate VPI treatments
were required. Evidence indicates that by at least 1992, PEPCO had
reminded EMS that its bid specifications required this "double VPI"
treatment. Richard Beegle, who was plant manager for EMS’s facility
in Altoona from May of 1991 until October of 1993, stated in an affi-
davit that after EMS received these specifications, it nonetheless per-
formed only one VPI treatment, and used polyester instead of epoxy
in repairing the motors. Beegle further testified that EMS occasionally
applied an epoxy coating over the polyester to cover up noncompli-
ance with PEPCO’s specifications, sometimes prepared false docu-
mentation for PEPCO showing that work had been performed using
epoxy and two VPI treatments, and falsified the results of tests
4 POTOMAC ELECTRIC POWER v. ELECTRIC MOTOR & SUPPLY
designed to evaluate the attributes of the repaired motor.1 Tests per-
formed for PEPCO by an outside company showed that at least two
motors repaired by EMS were repaired using polyester instead of
epoxy and then covered with epoxy in a manner that tended to con-
ceal this fact.
B.
On July 29, 1998, PEPCO filed suit under RICO, 18 U.S.C.A.
§ 1962 (West 2000), alleging that EMS engaged in fraudulent activi-
ties in the repair of PEPCO electric motors over a period of several
years. On January 20, 1999, EMS filed a motion to dismiss for failure
to state a claim under Federal Rule of Civil Procedure 12(b)(6), which
the district court granted in part and denied in part. The portion of the
district court’s ruling on the motion to dismiss that is under review
here is the district court’s denial of EMS’s motion to dismiss Count
I of PEPCO’s complaint on the basis that PEPCO failed to allege that
its injury derived from EMS’s use of racketeering proceeds. Follow-
ing discovery, EMS filed two separate motions for summary judg-
ment, one for lack of proof of fraud and the other for lack of proof
of damages. The district court granted the motion for summary judg-
ment on the basis of lack of proof of damages and did not reach
EMS’s contention that summary judgment was also justified by lack
of proof of fraud. PEPCO timely appealed from the grant of summary
judgment, and EMS cross-appealed from the district court’s failure to
grant its motion for summary judgment for lack of proof of fraud, as
well as from the partial denial of its motion to dismiss.
II.
A private RICO plaintiff only has standing to bring suit if he can
show damage to "business or property" proximately caused by the
1
EMS claims that Beegle has "no admissible testimony." (Appellee’s
Br. at 12.) This putative evidentiary challenge, however, is in fact simply
a reflection of EMS’s statute of limitations argument, see infra Part III,
and because we find the record inadequately developed to resolve the
statute of limitations issue, we proceed on the assumption that Beegle’s
testimony is relevant and admissible.
POTOMAC ELECTRIC POWER v. ELECTRIC MOTOR & SUPPLY 5
2
defendant’s RICO violation. See 18 U.S.C. § 1964(c) (providing that
a plaintiff must show that it was "injured in [its] business or property
by reason of a violation"); Caviness v. Derand Resources Corp., 983
F.2d 1295, 1305 (4th Cir. 1993) (stating that a plaintiff must show
"damage proximately caused by the violation"). PEPCO argues that
it adduced sufficient proof of the fact of injury to survive EMS’s
motion for summary judgment.
The district court, however, found that PEPCO presented no evi-
dence that the motors repaired by EMS failed more frequently, had
a shorter useful life, or were less valuable as a result of EMS’s
claimed failure to follow repair specifications. PEPCO claimed that
the proper measure of damages was the entire repair price, and thus,
it was simply entitled to the return of all funds paid to EMS for non-
compliant repairs; the district court found this argument unpersuasive.
As a result, the district court held that the amount of damages was
"speculative and unprovable," precluding RICO liability. (J.A. at
645.)
The district court correctly found that PEPCO adduced no evidence
that any motor repaired by EMS had failed or had not performed as
well due to EMS’s claimed fraud. Further, PEPCO’s argument that
the proper measure of its damages is the entire price paid for repairs
founders because PEPCO must produce evidence of the actual value
of the services that were rendered. See, e.g., Western Contracting
2
In this Circuit, a plaintiff need not show that the damages flowed from
the use or investment of the racketeering income, only that damages
flowed from racketeering activity itself. Busby v. Crown Supply, Inc.,
896 F.2d 833, 837 (4th Cir. 1990). Every other circuit to address the
issue has adopted an "investment use injury" requirement, holding that
a plaintiff’s damages must be caused by the defendant’s use of the pro-
ceeds of racketeering. See, e.g., Danielsen v. Burnside-Ott Aviation
Training Ctr., Inc., 941 F.2d 1220, 1230 (D.C. Cir. 1991) (rejecting the
Busby rule). Recognizing that the panel is bound by Busby, EMS none-
theless seeks to preserve the "investment use" issue for en banc review.
As this panel must follow Busby, EMS’s request to overrule that decision
must be raised to the en banc court and need not detain us longer. See
Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 260 (4th
Cir. 1998) (stating that a panel cannot overrule a decision of a prior
panel).
6 POTOMAC ELECTRIC POWER v. ELECTRIC MOTOR & SUPPLY
Corp. v. Bechtel Corp., 885 F.2d 1196, 1203-04 (4th Cir. 1989) (stat-
ing that even using Maryland’s "out-of-pocket" method for determin-
ing damages, plaintiff must produce evidence of the actual value of
the services rendered). Granting PEPCO a refund of the entire amount
paid for repairs would obviously confer on PEPCO a large windfall,
because even if the motors were not repaired in conformity with each
specification, it is undisputed that most of the work that PEPCO paid
for was performed by EMS and that the motors were returned in
repaired, working order.
PEPCO nevertheless argues that it need not show that the motors’
performance was diminished or that the motors were less valuable as
a result of EMS’s failure to perform repairs as specified. We agree.
If a party specifically bargains for a service, is told that the service
has been performed, is charged for the service, and does not in fact
receive the service, it is not appropriate for courts to inquire into
whether the service "really" had value as a precondition to finding
that injury to business or property has occurred. See Hellenic Lines,
Ltd. v. O’Hearn, 523 F. Supp. 244, 248 (S.D.N.Y. 1981) (stating that
RICO injury is proved where a company demonstrated that "padded"
bills resulted in payment for services not rendered). If the evidence
indicates that a party paid value for a good or service, this fact is a
more reliable indicator that the service actually had value to the party
than the post hoc intuition of a court as to the good or service’s value.
John Morykon, EMS’s own witness, testified that PEPCO probably
was charged more for the repairs because the specifications were
higher than industry standards. Even if PEPCO’s asserted idiosyn-
cratic specifications — requiring "double VPI treatments," etc. — did
absolutely nothing to improve the reliability of its motors, these speci-
fications represented a service for which PEPCO bargained, paid, and
allegedly did not receive despite EMS’s representations to the con-
trary. PEPCO’s analogy is apt: If a consumer bargains for and pays
extra for an automotive transmission repair to be performed using
original manufacturer parts, an auto repair shop commits fraud if it
performs the repair using generic parts and tells the consumer that
original manufacturer parts were used, regardless of whether the
generic parts are actually less useful or reliable.
Our conclusion is buttressed by the language of § 1964(c), which
confers RICO standing on "any person injured in his business or prop-
POTOMAC ELECTRIC POWER v. ELECTRIC MOTOR & SUPPLY 7
erty," not any person who can quantify the amount of the injury. The
best reading of § 1964(c)’s injury to business or property requirement
is that it refers to the fact of injury and not the amount. If PEPCO can
establish that EMS represented that it was complying with specifica-
tions and intentionally did not do so while charging a contract price
that reflected the specifications, PEPCO has been "injured in its prop-
erty" to the extent of the difference between the amount it paid and
the amount it would have paid under specifications reflecting the
actual work performed. Even if the precise amount of its injury is not
susceptible of ready proof, it is clear that a reasonable finder of fact
could infer that some injury has occurred; that is, the finder of fact
could infer from the fact that the parties bargained for expensive addi-
tional procedures that the cost of those procedures influenced the con-
tract price.
The district court followed Ninth Circuit precedent holding that
quantifiable RICO damages are an essential prerequisite to core
RICO liability. See Oscar v. Univ. Students Coop. Ass’n, 965 F.2d
783, 785 (9th Cir. 1992). However, the district court’s statement of
its holding is inconsistent with the Ninth Circuit’s approach. See J.A.
at 642 ("the plaintiff . . . must show that he has suffered some com-
pensable damage." (emphasis added)). Similarly, this Circuit has not
held that quantifiable damages are a necessary precondition to RICO
liability; instead, this Circuit has formulated the requirement in terms
of the necessity of proving some damages, not a specific amount.
Caviness, 983 F.2d at 1305 (requiring a showing of "damage proxi-
mately caused by the violation"). PEPCO argues that at a minimum,
it has demonstrated some damage and argues that in the absence of
proof of a specific amount, it is entitled to nominal damages, which
would trigger an award of attorney’s fees. Indeed, under analogous
provisions of the Clayton Act, the Second Circuit has upheld just such
an award of nominal damages and attorney’s fees. United States Foot-
ball League v. National Football League, 887 F.2d 408, 411 (2d Cir.
1989). Cf. McDonnell v. Miller Oil Co., 134 F.3d 638, 640-41 (4th
Cir. 1998) (suggesting that nominal damages may be appropriate
under the Family and Medical Leave Act, but noting that a reduction
in the award of attorney’s fees may be warranted when only nominal
damages are proven); Rosario v. Livaditis, 963 F.2d 1013, 1021 (7th
Cir. 1992) (remanding for a new trial on damages because in a RICO
case, the jury found liability but "did not award even nominal dam-
8 POTOMAC ELECTRIC POWER v. ELECTRIC MOTOR & SUPPLY
ages on the RICO counts"). EMS, in its reply brief, provides no case
law or argument as to why nominal damages is not a viable concept
under civil RICO. Thus, we conclude that the district court erred in
granting summary judgment on the basis of inability to prove the
amount of damages; if the motors were not repaired according to
specifications some amount of damage likely is present, even if
PEPCO cannot prove the amount, and a nominal amount of damage
is adequate to support liability.
III.
EMS argues as an alternative ground for affirmance that PEPCO
failed to create a triable issue of fact as to whether EMS fraudulently
repaired PEPCO’s motors on more than one occasion; the district
court did not reach this issue, granting summary judgment instead on
the ground of lack of proof of injury. Private RICO suits are governed
by a four-year statute of limitations, which runs from the date when
the plaintiff discovered, or should have discovered, the injury. Klehr
v. A.O. Smith Corp., 521 U.S. 179, 183 (1997); Rotella v. Wood, 528
U.S. 549, 555 (2000) (discovery of injury, not of other elements of
the claim, starts the statute of limitations clock). As EMS notes,
PEPCO may not "bootstrap" time-barred claims by linking them to
later, non-time-barred claims. Klehr, 521 U.S. at 190. Here, EMS
asserts that PEPCO was on notice of the potential violations by at
least March of 1994, while PEPCO claims it did not have, and should
not have had, knowledge until August of 1994. Since PEPCO filed its
complaint on July 29, 1998, the application of the statute of limita-
tions essentially turns on the question of whether, with respect to each
alleged injury, PEPCO knew or should have known of its injury prior
to July 29, 1994. Because the evidence is in conflict relative to when
PEPCO discovered or should have discovered EMS’s alleged fraudu-
lent repair practices, because resolving these conflicts will involve a
fact-intensive determination, and because the district court has not
grappled with the detailed factual evidence regarding when PEPCO
knew or should have known about each separate alleged incident, we
believe it would be unwise to resolve this issue for the first time on
appeal; instead, the district court should resolve it on remand.
Assuming that predicate acts occurring before July 1994 are not
time-barred, the testimony of EMS employee Richard Beegle clearly
POTOMAC ELECTRIC POWER v. ELECTRIC MOTOR & SUPPLY 9
3
creates a disputed issue of material fact as to fraud; Beegle states that
from May 1991 to October 1993, when he was an EMS employee, he
witnessed a host of knowing failures to repair motors in accordance
with specifications and observed EMS staff filling out fraudulent
paperwork stating to PEPCO that work had been performed when it
had not been. Further, EMS’s time entry reports often state that only
one VPI treatment was performed on a given motor when other docu-
mentation reflects that two treatments were performed. EMS argues
that these time entry reports were prepared for internal purposes and
are not accurate; but this is an issue for the trier of fact. If PEPCO’s
statute of limitations argument is correct on the facts in this case,
which have not been fully developed relative to this issue, there is
adequate proof of more than one instance of fraud to survive sum-
mary judgment.
IV.
PEPCO further argues that it may obtain recission and other equita-
ble remedies under civil RICO. As a threshold matter, while PEPCO
argues on appeal that it is entitled to equitable recission, restitution,
and constructive trust, before the district court, PEPCO argued only
for recission and not for restitution or constructive trust. We decline
to consider PEPCO’s restitution and constructive trust arguments, as
these arguments were not raised below. Bregman, Berbert &
Schwartz, L.L.C. v. United States, 145 F.3d 664, 670 n.8 (4th Cir.
1998).
Recission ordinarily involves a judicial termination of a party’s
contract obligations; it is a court-ordered "unwinding" of a contract,
with the goal of returning the parties to the status quo prior to con-
tracting. Lazorcak v. Feuerstein, 273 Md. 69, 75 (1974). Given that
the contract at issue is a contract for services, recission in the declara-
tory or injunctive sense is simply not feasible; a court cannot order
PEPCO’s motors "un-repaired," which would be necessary in order
fully to undo the contract.4 See Leaf Co. v. Montgomery County, 70
3
In fact, at oral argument, counsel for EMS conceded that summary
judgment on the ground of lack of proof of fraud would be inappropriate
if EMS’s statute of limitations argument were found to be meritless.
4
Given the infeasibility of declaratory or injunctive relief in this case,
we have no occasion to consider the parties’ arguments as to whether
10 POTOMAC ELECTRIC POWER v. ELECTRIC MOTOR & SUPPLY
Md. App. 170, 180 (1987) ("The contract is one for services already
performed, which is not susceptible of recission."). PEPCO also
requests a recission "measure of damages" in which PEPCO simply
receives money damages equal to the amount which it paid minus the
fair value of services performed. This approach is, in essence, a
request for a compensatory money damages award, and it is subject
to the same infirmity that plagues PEPCO’s entire case, namely
PEPCO’s inability to quantify the value of the services that EMS
allegedly did not perform. See Volckmann v. Edwards, 642 F. Supp.
109, 115 (N.D. Cal. 1986) (recission available in private RICO where
"it amount[s] to out-of-pocket losses — damages, in essence"); West-
ern Contracting Corp. v. Bechtel Corp., 885 F.2d 1196, 1204 (4th Cir.
1989) (stating that under Maryland’s essentially recissionary "out of
pocket" method for determining damages, the plaintiff must produce
evidence of the actual value of the services rendered).5
V.
Because PEPCO adduced sufficient proof of the fact of injury to
its business or property to survive summary judgment, we reverse the
district court’s grant of summary judgment to EMS on the basis of
lack of proof of damages. We remand to the district court to consider
EMS’s motion for summary judgment based on lack of proof of fraud.
Because we are bound by circuit precedent, we are constrained not to
equitable relief is available in a private civil RICO action, and reserve for
another day the question of whether relief which goes beyond a purely
compensatory measure of money damages is available in private civil
RICO actions. Compare Religious Tech. Ctr. v. Wollersheim, 796 F.2d
1076, 1084 (9th Cir. 1986) (concluding that injunctive relief is not avail-
able in private civil RICO actions), with Chambers Dev. Co. v.
Browning-Ferris Indus., 590 F. Supp. 1528, 1540-41 (W.D. Pa. 1984)
(holding that injunctive relief is available in private civil RICO actions).
5
PEPCO suggested at oral argument that when the recissionary mea-
sure of money damages is used, the burden shifts to EMS to prove the
fair market value of the services rendered. PEPCO provides no authority
for this assertion, and we believe that Western Contracting Corp. v.
Bechtel Corp, 885 F.2d 1196, 1204 (4th Cir. 1989), provides a contrary
rule for fraud cases.
POTOMAC ELECTRIC POWER v. ELECTRIC MOTOR & SUPPLY 11
take up EMS’s request that we hold that "investment use injury" is an
essential prerequisite of a civil RICO action. Finally, we hold that
PEPCO is not entitled to recission.
AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED