Ditullio v. BoehmDitullio v. Boehm
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Lead Opinion
Opinion by Judge B. FLETCHER; Dissent by Judge CALLAHAN.
OPINION
B. FLETCHER, Circuit Judge:In November 2004, appellee Josef Boehm pled guilty to one count of conspiracy to engage in human trafficking, and admitted that between 2001 and December 22, 2003, he conspired with others to provide controlled substances to several minors and recruited them to engage in sexual activity. Appellant Miranda Ditullio alleges that she is one of the victims identified in Boehm’s plea agreement and seeks compensatory and punitive damages under the Trafficking Victims Protection Act,
After denying Ditullio’s motion for summary judgment, and Boehm’s motion to dismiss for failure to state a claim, the district court certified an interlocutory appeal on two questions of first impression: (1) whether the TVPA permits recovery of punitive damages, and (2) whether the TVPA’s civil action provision,
I.
When it enacted the Trafficking Victims Protection Act in 2000, Congress declared that the purposes of the TVPA are to “combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims.” Pub.L. No. 106-386, § 102, 114 Stat. 1488 (2000) (codified as amended at
recruit! ], entice! ], harbor! ], transport! ], provide! ], obtain! ] or maintain! ] by any means a person . . . knowing, or in reckless disregard of the fact, that means of force, threats of force, fraud, coercion . . . or any combination of such means will be used to cause the person to engage in a commercial sex act.
An individual who is a victim of a violation may bring a civil action against the perpetrator (or whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter) in an appropriate district court of the United States and may recover damages and reasonable attorneys fees.
II.
In November 2004, Boehm pled guilty to one count of conspiracy to commit sex trafficking of children in violation of
Beginning in late 2001 and continuing until December 22, 2003, BOEHM conspired with BOLLING, WILLIAMS, and TYREE to recruit persons under 18 (“juveniles ”) to engage in sexual acts. The juveniles were recruited by offering them cocaine, which was manufactured outside of Alaska and effected interstate commerce. The following juveniles were knowingly recruited by the defendants to engage in sex: S.P., E.A., J.M., K.W., L.H., C.R., L.B., and M.D. These juveniles had sex with one or more of the defendants, and received money and/or controlled substances from the defendants. The defendants knew the juveniles ages when they recruited the juveniles. To effect the purposes of the conspiracy, the defendant purchased cocaine and distributed cocaine to one or more juveniles, including S.P. in or about the fall of 2001.
(emphasis added).
Ditullio filed suit in federal district court in June 2009, and amended her complaint in October 2009. She alleged involuntary servitude in violation of the Thirteenth Amendment, violations of the TVPA, sexual assault, and intentional infliction of emotional distress. Ditullio moved for summary judgment on Boehm’s liability for compensatory and punitive damages. She attached to the motion a copy of Boehm’s 2004 plea agreement and an affidavit.
Ditullio declared that she is the victim identified by the initials “M.D.” in Boehm’s plea agreement. She claims to have first met Boehm in the fall of 2002 when she was fifteen years old. Ditullio claims that Boehm gave her crack cocaine “on a daily basis so that Mr. Boehm could have his way with me at any given time” and that she lived with him in order to obtain drugs on a regular basis. She declares that Boehm enticed her with drugs to perform sexual acts on others, including his co-conspirators and other female victims. Ditullio also claims that she became pregnant in 2003, and that Boehm could be the father of the child (who was taken into state custody due to Ditullio’s drug addiction). Ditullio states that she “suffered severe emotional upset” and has been unable to maintain steady employment as a result of Boehm’s actions. In reply, Boehm generally denied Ditullio’s allegations and argued that her affidavit should be stricken, but offered no contradictory evidence.
The district court denied Ditullio’s motion for partial summary judgment, despite its acknowledgment that the affidavit and plea agreement together established that Ditullio was a victim of sex trafficking and Boehm was the perpetrator. The district court concluded that “because
Boehm then moved to dismiss under
The district court granted Ditullio’s motion to certify these issues of first impression for interlocutory appeal. We have jurisdiction under
The availability of punitive damages is reviewed de novo. Hangarter v. Provident Life and Accident Ins. Co., 373 F.3d 998, 1013 (9th Cir.2004). Whether a statute may be applied retroactively is a question of law that is reviewed de novo. Saravia-Paguada v. Gonzales, 488 F.3d 1122, 1129 n. 10 (9th Cir.2007).
III.
The district court concluded, without analysis, that punitive damages are not available under the TVPA. The TVPA’s civil remedy provision provides that a victim “may recover damages and reasonable attorneys fees” in a civil action against the perpetrator.
In Franklin v. Gwinnett County Public Schools, the Supreme Court held that money damages are available in a civil action brought under Title IX. 503 U.S. 60, 62-63, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). The plaintiff in Franklin alleged that she had been sexually harassed by a high school teacher. Id. at 63, 112 S.Ct. 1028. The Court reasoned, “absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute.” Id. at 70-71, 112 S.Ct. 1028.
In tort cases, punitive damages are “awarded against a person to punish him for his outrageous conduct and to deter
The Supreme Court has looked to the common law to determine the remedies available under federal statutes creating causes of action sounding in tort. The Court has applied common law principles and found that punitive damages are available under
Looking to the common law, the Supreme Court concluded that punitive damages are available in actions under
The Court also explained that the common law of torts “provide[s] the appropriate starting point for the [damages] inquiry under
As the Supreme Court has done to determine the scope of remedies available under federal statutes, we turn to common law principles to determine whether punitive damages are available under the TVPA civil action provision. We follow the “general rule” that we should award “any appropriate relief in a cognizable cause of action brought pursuant to a federal statute.” Franklin, 503 U.S. at 71, 112 S.Ct. 1028. Punitive damages are generally appropriate under the TVPA civil remedy provision because it creates a cause of action for tortious conduct that is ordinarily intentional and outrageous. A plaintiff bringing a civil action under the TVPA must prove that the defendant has engaged in human trafficking, which Congress described as “a contemporary manifestation of slavery.” Pub.L. No. 106-386, § 102, 114 Stat. 1488 (2000) (codified as amended at
IV.
Ditullio seeks to apply
The Supreme Court has recognized a “time honored presumption [that] unless Congress has clearly manifested its intent to the contrary,” “the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place.” Hughes Aircraft Co. v. United States, 520 U.S. 939, 946, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 265, 268, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)). “The aim of the presumption is to avoid unnecessary post hoc changes to legal rules on which parties relied in shaping their primary conduct.” Republic of Austria v. Altmann, 541 U.S. 677, 696, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004). Courts apply a two-step analysis “when an objection is made to applying a particular statute said to . . . impose some burden on the basis of an act or event preceding the statute’s enactment.” Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37, 126 S.Ct. 2422, 165 L.Ed.2d 323 (2006). First, the court looks to “whether Congress has expressly prescribed the statute’s proper reach.” Id. at 37, 126 S.Ct. 2422 (quoting Landgraf, 511 U.S. at 280, 114 S.Ct. 1483). If the answer to the first question is “yes,” the statute applies retroactively unless it runs afoul of the constitution. Landgraf, 511 U.S. at 280, 114 S.Ct. 1483. If the answer is “no,” the court “asks whether applying the statute to the person objecting would have a retroactive consequence in the disfavored sense.” Fernandez-Vargas, 548 U.S. at 37, 126 S.Ct. 2422. If so, the statute cannot apply retroactively absent a clear indication that Congress intended that result. Id. at 37-38, 126 S.Ct. 2422.
Congress did not expressly state that
a. Retroactive Consequence
“A statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating from the statute’s enactment.... Rather, the court must ask whether the new provision attaches new legal consequences to events completed prior to its enactment.” Landgraf, 511 U.S. at 269-70, 114 S.Ct. 1483 (internal citation omitted). The Supreme Court has emphasized that there is no test for when a statute attaches new legal consequences; rather it “is a matter on which judges tend to have sound instincts and familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.” Id. at 270, 114 S.Ct. 1483. (internal quotation marks, alterations, and citation omitted).
Ditullio argues that
b. “Continuing Violation” Theory
Ditullio next argues that because “Boehm admitted that his conduct continued past the effective date of
The most analogous “continuing violation” cases consider employment discrimination that straddles the effective date of § 102 of the Civil Rights Act of 1991. In Yamaguchi v. United States Dep’t of the Air Force, 109 F.3d 1475 (9th Cir.1997), plaintiff brought a Title VII action, claiming sexual harassment by Clark, a male coworker, and sex discrimination based on her supervisor’s failure to discipline Clark, her demotion, and her eventual termination. Id. at 1480. Some of the conduct occurred prior to the effective date of § 102, while some occurred after. This court held that, under Landgraf, Yamaguchi was “not entitled to compensatory damages and a jury trial for Clark’s harassing conduct which occurred prior to November 21, 1991.” Id. at 1482. On the other hand, the court stated that “Clark’s harassment was a ‘continuing violation’ which began prior to the effective date of the [Civil Rights Act] and continued thereafter.” Id. Thus, the court held, Yamaguchi “is entitled to pursue compensatory damages and a jury trial for post-November 21,1991 conduct.” Id.
Under Yamaguchi, the continuing violation theory was not sufficient to overcome the Landgraf presumption against retroactivity for a provision creating new civil liabilities. This court’s holding in Yamaguchi is consistent with cases in other circuits. See, e.g., Caviness v. Nucor-Yamato Steel Co., 105 F.3d 1216, 1218 (8th Cir.1997) (holding that the jury was erroneously instructed that it could award compensatory damages for illegal actions occurring before the effective date of § 102 of the Civil Rights Act of 1991 and remanding for a new trial); Tomasello v. Rubin, 167 F.3d 612, 619-20 (D.C.Cir.1999) (rejecting plaintiffs argument that a continuing violation permits recovery for preNov. 21, 1991 acts, noting that it has only entertained a “continuing violation” theory when necessary to give effect to the statutory purpose); but see Place v. Abbott Lab., 215 F.3d 803, 807-08 (7th Cir.2000) (declining to opine on the viability of the continuing violation theory, but stating that plaintiffs’ allegations did not fit that mold); DeNovellis v. Shalala, 124 F.3d 298, 307 n. 4 (1st Cir.1997) (recognizing the viability of the theory but rejecting its application to plaintiffs case).
For the foregoing reasons, we hold that
V.
We reverse the district court’s determination that punitive damages are unavailable under the TVPA. We affirm the district court’s conclusion that
The parties shall bear their owns costs on appeal.
REVERSED IN PART AND AFFIRMED IN PART
Notes
. The version of
.
. The dissent mis-characterizes our conclusion that the term damages is ambiguous by stating that we find the statute is “silent” as to whether punitive damages are available. Our conclusion that the term “damages,” standing alone, permits an award of punitive damages is supported by this court‘s precedent. The Torture Victim Protection Act of 1991,
. We are mindful of the Supreme Court‘s admonition that federal courts are not authorized to “derive ‘general’ common law.” See Sosa v. Alvarez-Machain, 542 U.S. 692, 729, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004) (citing Erie Ry. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). The Court has distinguished use of the common law to “do no more than identify the scope of the remedy Congress itself has provided” from the impermissible invocation of “some broad-ranging common-law source for creating a cause of action.” Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 645-46, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981).
We also note that the Supreme Court has held that punitive damages are not available under statutes enacted under Congress’ Spending Clause powers, unless the statute expressly provides for punitive damages. See Barnes v. Gorman, 536 U.S. 181, 186-90, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002). Barnes is inapplicable to the TVPA, which Congress enacted under its Commerce Clause powers. See
. The dissent turns to the legislative history of the TVPA and reaches the opposite result. The dissent emphasizes that a previous draft of the TVPA provided for “actual damages, punitive damages, reasonable attorney‘s fees and other litigation costs reasonably incurred” but the statute as enacted provides only for “damages and reasonable attorney’s fees.” Dissent at 20072-73. The legislative history is not as clear as the dissent suggests; Congress did not simply remove the phrase “punitive damages” from the TVPA, instead it replaced the terms “actual damages and punitive damages” with the more general term “damages.” Neither the significance of this change nor the reason for it appear in the legislative history. The dissent posits that the change may have been the result of a DOJ letter arguing to eliminate the entire civil action provision. Whatever weight Congress may have given the letter, Congress ultimately did not agree with the DOJ because it did not remove the civil action provision from the final bill. Neither the text of the TVPA, nor its legislative history, resolve the question of availability of punitive damages; Congress may have intentionally left this question to the Courts.
. In Hughes Aircraft, the Court rejected the argument that this language defined the “outer limits of impermissible retroactivity.” 520 U.S. at 946-47, 117 S.Ct. 1871. It stated that Landgraf “merely described that any such effect constituted a sufficient, rather than a necessary, condition for invoking the presumption against retroactivity.” Id. at 947, 117 S.Ct. 1871. The Court did not, however, elaborate on the “outer limits” of impermissible retroactivity, instead holding that even applying Justice Story‘s formulation, the statute at issue had a retrospective effect. Id.
. Even if the remedies under
Concurrence Opinion
dissenting:
I agree with my colleagues that
The majority’s reasoning is straightforward: (a) the statute is basically silent as to the availability of punitive damages; (b) punitive damages were allowed in common law when a tort was intentional and outrageous; (c) trafficking in humans almost by definition is intentional and outrageous; and (d) therefore a victim may seek punitive damages under
The attraction of this approach is its simplicity. However, the Supreme Court’s relevant opinions require a more sophisticated approach, one based on Congress’s intent at the time the statute was enacted as well as an analysis of the law at that time.
The majority relies heavily on the Supreme Court’s opinion in Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983), in holding that it can look to the common law of torts to determine whether punitive damages are available under
The first draft of the TVPA, dated November 22, 1999, provided a civil action for a violation of
In 2003, Congress reconsidered the TVPA in order to authorize appropriations for fiscal years 2004 and 2005, as well as for “other purposes.” H.R.Rep. No. 108-264(11), at 1 (2003). At that time, Congress drafted a civil damages provision for the TVPA. The initial draft provided that a civil suit may be filed “in any appropriate district court of the United States [which] may award actual damages, punitive damages, reasonable attorneys’ fees, and other litigation costs reasonably incurred.” Id. at 5. However, when the revision was enacted, the TVPA civil remedy provisions allowed only for recovery of “damages and reasonable attorneys fees.”
This change may have resulted from a letter from the Department of Justice (DOJ) generally supporting the Trafficking Victims Protection Reauthorization Act of 2003, but opposing the creation of a private right of action.3 H.R.Rep. No. 108-264(11), at 3. The DOJ’s letter is the only listed commentary on the proposed punitive damages section in the House Report. It appears that Congress partially heeded DOJ’s advice and created a private cause of action for damages and attorneys’ fees, but did not provide for punitive damages.4 In sum, a review of the TVPA’s legislative history shows that far from deferring to federal common law, Congress in 2003, when it created a private cause of action under TVPA, considered and declined to
This Congressional decision should settle the matter even under Wade, 461 U.S. 30, 103 S.Ct. 1625. In Wade, the Court first noted that “there was little in [
Finally, recognizing that Congress did not provide for punitive damages in
As then-Justice Rehnquist noted in his dissent in Wade, 461 U.S. at 57-59, 103 S.Ct. 1625, creating a claim for punitive damages raises concerns that are distinct from defining the scope of compensatory damages. Here, Congress implicitly recognized this when it enacted the TVPA and its provision for a civil remedy. Congress considered several drafts that included provisions for punitive damages, but ultimately, after being advised by DOJ of the problems inherent in the creation of a private cause of action, passed legislation that does not provide for punitive damages. I dissent because, regardless of the desirability of allowing for punitive damages under
. Justice Rehnquisl’s dissent was joined by Chief Justice Burger and Justice Powell. Justice Rehnquist noted:
A fundamental premise of our legal system is the notion that damages are awarded to compensate the victim — to redress the injuries that he or she actually has suffered. D. Dobbs, Remedies § 3.1 (1973); C. McCormick, The Law of Damages 1 (1935). In sharp contrast to this principle, the doctrine of punitive damages permits the award of “damages” beyond even the most generous and expansive conception of actual injury to the plaintiff. This anomaly is rationalized principally on three grounds. First, punitive damages “are assessed for the avowed purpose of visiting a punishment upon the defendant.” C. McCormick, Law of Damages 275 (1935) (emphasis added); D. Dobbs, Handbook of the Law of Remedies § 3.9, at 205 (1973); K. Redden, Punitive Damages, § 2.1 (1980); Electrical Workers v. Foust, 442 U.S. 42, 48, 99 S.Ct. 2121, 2125, 60 L.Ed.2d 698 (1979). Second, the doctrine is rationalized on the ground that it deters persons from violating the rights of others. Ibid. Third, punitive damages are justified as a “bounty” that encourages private lawsuits seeking to assert legal rights. Ibid.
Punitive damages are generally seen as a windfall to plaintiffs, who are entitled to receive full compensation for their injuries — but no more. Even assuming that a punitive “fine” should be imposed after a civil trial, the penalty should go to the state, not to the plaintiff — who by hypothesis is fully compensated. Moreover, although punitive damages are “quasi-criminal,” Huber v. Teuber, 10 D.C. 484, 490 (1877), their imposition is unaccompanied by the types of safeguards present in criminal proceedings. This absence of safeguards is exacerbated by the fact that punitive damages are frequently based upon the caprice and prejudice of jurors. Walther & Plein, Punitive Damages; A Critical Analysis, 49 Marq. L.Rev. 369 (1966).
.President Clinton, in announcing his signing the TVPA into law, gave a summary of the ways in which the new legislation would combat human trafficking. He stated that the law “create[d] new felony criminal offenses for trafficking in human beings and subjects any person convicted of any of these new crimes to forfeiture of his or her assets.” White House Office of Commons, Radio Address Paper on Combating Violence Against Women President Clinton’s Radio Address to the Nation: Legislation to Combat Violence Against Women, Fight Trafficking in Persons, and Assist Victims of Terrorism October 28, 2000, 10/29/00, 2000 WL 1617213 (2000). Compare with House Conference Report on No. 106-939. The Report shows that Sec. 2002 of H.R. 3244 addresses anti-terrorism judgments rather than anti-trafficking, and specifically references punitive damages awards. This contrast suggests that had Congress intended to allow for punitive damages for anti-trafficking violations, it would have expressly provided for such damages in the TVPA.
. The DOJ cautioned that “creation of a private right of action is a complex undertaking that should be approached only after careful consideration of collateral consequences and the appropriate standard for establishing a civil violation.” H.R.Rep. No. 108-264(11), at 13. Rather than amending the TVPA to “creat[e] a federal civil remedy, one that would include treble damages,” the DOJ suggested that amendment of the Racketeer Influenced and Corrupt Organizations Act (RICO) [(
. Congress again considered the TVPA in 2008, but did not add a provision for punitive damages. 154 Cong. Rec. H10888-01 (2008).
. This decision seems reasonable as it is not clear that punitive damages are necessary to punish the defendant or to fairly compensate a plaintiff. Section 1595 generally comes into play only after a defendant has been criminally convicted in violation of