*1
Further,
566, 572-73,
special
provision
of
education
While
justify
partial
its is sufficient to
at least a
fee
only
Review Officer referred
to the Minneso-
award, but not the
awarding
basis for
fees to
regulations,
cooperative
ta
ar-
plaintiff
IDEA,
prevail
who did not
on the merits
rangement
by
fostered
the relief
any
of
shifting
claim under the fee
only
statute.
granted
sprang
Eric
not
from the state
The latter
simply contrary
conclusion is
regulations
statutes and
made to effectuate
language
in both Farrar
Texas
programs,
directly
the federal
but was
re-
State
quired by
regula-
Indepen
Teachers Association v.
the federal statutes and
Garland
District,
dent
tions as well.
School
law claims. recognizes
The court that 20 U.S.C. 1415(e)(2) provides party aggrieved that a
by findings and decisions of the state
agency may bring an action in federal or DOE, Plaintiff-Appellee, Jane 1415(e)(4)(B),(C) state court. Sections (D) provide further action America, Intervenor United States subsection, brought the court Plaintiff-Appellee, attorneys’ par- award reasonable fees to the guardian ents or youth child or with a v. disability party. who is prevailing HARTZ, Father Defendant- Gerald by
relief obtained Warner was authorized Appellant, the fabric of federal and state statutes and regulations, justifies the fee award. Bishop Soens; Lawrence St. Lawrence Church;
Further, I Roman Catholic Diocese of believe that the court misreads City, Iowa, Hobby, Farrar Sioux Defendants. *2 DOE, Plaintiff-Appellee, Jane America, Intervenor
United States
Plaintiff-Appellee, HARTZ, Defendant,
Father Gerald Soens;
Bishop Lawrence St. Lawrence
Church; Diocese, Roman Catholic City, Iowa, Defendants-Appel-
Sioux
lants.
Nos. 97-3087. Appeals, States Court of
United
Eighth Circuit.
Submitted Dec.
Decided Jan.
Joseph Estherville, IA, Fitzgibbons, L. ar- gued, appellant for Hartz. IA, City, Radig, argued,
James W. Sioux defendant-appellant for Roman Catholic Dio- cese. Conlin, Moines, IA,
Roxanne Barton Des argued, appellee. FAGG, BOWMAN, LOKEN,
Before Judges. Circuit BOWMAN, Judge. Circuit Plaintiff Jane Doe filed a civil action in federal district court Father Gerald 13981(c). Soens, Thus, Hartz, right.” Lawrence Bishop Lawrence St. the civil claim dependant upon predicate Church, offense —a the Roman Catholic Diocese of crime of violence. City, that Father Sioux Iowa. toward her. Hartz made sexual advances offense which Doe bas- asserted a federal Vio- She *3 by es her VAWA claim is defined Iowa Code (VAWA), 42 Against Women Act
lence section 709.15. Doe claims that Father §§ 13981-14040 and various U.S.C. Hartz’s sexual advances violated The defendants other state law claims. against exploita- Iowa’s criminal law suit, District moved to dismiss the and the by tion a counselor or therapist. See Iowa the motion.1 The case is before Court denied (West 1993). Code Ann. 709.15 Iowa law interlocutory appeal pursuant to 28 us on an therapist pro- a counselor or 1292(b) (1994). U.S.C. engaging vides mental health services from any sexual conduct with a or client. argue that Doe cannot The defendants See id. VAWA, state a claim under that VAWA is an congressional exercise of unconstitutional
power, and that the First Amendment bars
II.
Doe’s state law claims. We hold that Doe
appealing
The defendants are
the District
to state a claim that comes within
has failed
denying
Court’s order
their motion to dis
scope
Accordingly, her
of VAWA.
miss for failure to state a claim. See Fed.
VAWA claim must be dismissed. There be-
12(b)(6).
R.Civ.P.
We review de novo a dis
ing no basis other than the VAWA claim for
dismiss,
trict court’s denial of a motion to
jurisdiction
supplemental
over the
federal
viewing
complaint
claims, the District
state law
Court
direct-
light
plaintiff.
most favorable to the
ed to dismiss those claims as well.
Lohman,
264,
Hafley v.
266
—
denied,
-,
cert.
117
I.
1081,
(1997).
137
S.Ct.
L.Ed.2d 216
We will
reverse the district court if it is clear that no
alleges
sexually
that Father Hartz
granted
though
relief could be
assaulted her on December
1994. Doe plaintiff
prove facts consistent with the
could
claims that when she arrived at St. Lawrence
allegations.
King
Spalding,
See Hishon v.
&
mass,
sing during evening
Father
Church
2229, 2232-33,
467 U.S.
81
her,
up
grabbed
Hartz “came
her
behind
(1984). Thus, only if
L.Ed.2d 59
there is
pulled
with both of his hands and
her back
“insuperable
some
bar to relief’ will we re
body,
tightly
kissed her
into his
held
and
the District
denial of the mo
verse
Court’s
Appellants’ App.
(Complaint).
at 2
neck.”
Wilson,
Bramlet v.
495
tion to dismiss. See
alleges
evening,
Doe also
that later the same
F.2d
up
Father Hartz “rubbed
back
[her]
argue
Defendants
that the District Court
“standing
down with his hand” while she was
granted
should have
their motion to dismiss
talking
parishioners.”
with other
Id. at
Amendment,
based
the First
the uncon
result,
5. As a
Doe claims she suffered
VAWA,
stitutionality of
and Doe’s failure to
severe emotional trauma. See id. at 3.
judicial
a claim. A
rule of
fundamental
“right
establishes a
to be free from
VAWA
nonconstitu-
restraint
us
consider
by gender.”
crimes of violence motivated
grounds
prior
to reach
tional
decision
13981(b).
The Act creates a civil
ing any
questions.
constitutional
See Jean
Nelson,
against
cause of action
... who
“[a]
According
commits a crime of violence motivated
stated ing” “dysfunction.” for a questions we determine 709.15.1.d. constitutional allega- a claim under the Doe’s contains no factual properly Doe has stated suggesting tions that she received services Act. any dysfunc- from Father Hartz for sort of complaint allege tion. Nor does the that she A. receiving requisite was services from Fa- proximate ther Hartz at time to his a claim for a civil cause of To alleged sexual advances.3 Doe has not stated VAWA, plaintiff must action under a claim under VAWA because she has failed the defendant committed plead a violation of the Iowa crime of violence. See U.S.C. offense —a *4 offense which she relies. 13981(c). complaint § claims her suffi Doe ciently alleges Father Hartz’s sexual ad Iowa Code section 709.15.
vances violated B. disagree We and therefore hold that she has to a VAWA claim. failed state arguendo if Even we assume that Doe has statute, stated a claim under the Iowa viola- question Iowa in statute in tion of that statute the manner Doe has exploitation by a or counselor ther- “[s]exual alleged felony, not constitute a does which is § apist.” “ Iowa Ann. A Code 709.15.li. required under a VAWA. To state civil therapist’ physi- or means a ‘[Counselor Act, plaintiff allege a must that a cian, psychologist clergy, ... member of the person committed a “crime of violence.” 42 person, or other whether or not licensed 13981(c). § VAWA defines a “crime state, registered by provides or or the of violence” “an act or series of acts that purports provide mental health services.” felony against person would constitute a the § 709.15.1.a. “Mental health service” is meaning ... and that come within the would treatment, assessment, defined as “the or of State or Federal offenses described counseling cognitive, of another for a 13981(d)(2)(A). § section 16 of Title 18.” Id. emotional, mental, behavioral, dys- social or function.” Id. 709.15.1.d. felony 1. An act that a would constitute alleged complaint in her that Father alleged Ap-
Hartz “served as a counselor to sexual advances that Doe [her].” pellants’ App. felony. claims not (Complaint).2 at 5 But even occurred would constitute a viewing Doe reminds us that allegations light the factual VAWA does indicate Doe, requisite “felony” whether the most favorable to we find she has failed should be de allege according termined to state or that Father Hartz was Doe’s federal law. “coun- therapist” meaning “felony” selor or Doe contends that under VAWA is felony satisfied when the act Nothing Iowa statute. al- constitutes a leges deciding that Doe health under either. Without whether received “mental ser- correct, Hartz, Doe’s contention is we yet requi- vices” from Father this is a conclude that alleged site sexual conduct constitutes a element Iowa Code’s definition of felo ny therapist.” “counselor or Iowa Ann. under neither Iowa nor federal law. adequately plead 709.15.1.a. To that she services, “pattern received mental health Doe was re- a or quired practice to assert factual engage she or scheme of conduct” to 2. Doe also asserts that a "[a]s member of the A violation of the Iowa statute that clergy, Defendant Hartz is a 'counselor thera- or during sexual conduct occur either the time at pist’ [the] within the Iowa Code.” patient emotionally dependent, which the see Appellants' App. (Complaint). at 5 This state- 709.15.1.f.(2), Iowa Code Ann. or within one nothing complaint, ment does however, to bolster Doe’s year after the termination of mental health merely legal because it is conclusion. 709.15.1.1(3). services. Id. support Doe must facts to claim. Corp., Oliver v. Resolution Trust 955 F.2d patient punished with a or client is could have been any sexual conduct federal law. felony. rightly Ann. “D” See Iowa Code We borrowed the federal classifica- a class 709.15.1.f.(l), felony Haggerty §§ Sexual conduct tion of a 709.15.2. because the conduct, part illegal Haggerty happened or client that is not of a for which with court, practice, aggravated is an to be pattern, scheme convicted also constitut- the Iowa code. See id. ed a misdemeanor under federal criminal law. In the violation hand, Supreme however, § 709.15.3. believe the Iowa case at simply We we cannot that the two instances of borrow the felony Court would hold federal classification of a complaint, apply sexual conduct it to conduct that could not consti- day happened which oh the same and within tute crime under federal law. other, an hour of each do not constitute about Furthermore, in United States Briones- pattern, practice, or scheme of conduct Mata, we meaning of section 709.15. There-
within the specifically looked to the state law’s classifi- fore, allegations, accepting Doe’s cation of an offense determine whether the allegedly most serious violation Father Hartz illegal conduct was a for federal sen- aggravated committed under state law is an purposes. tencing We concluded that “a misdemeanor. drug an aggravated offense can be felo- ny the offense is classified as a aggravated argues that even an mis- *5 state, under the law of the relevant under Iowa law constitutes a felo- demeanor punishable the same offense would be law, as ny under federal law. Under Iowa the a misdemeanor under federal law.”4 Id. penalty aggravated maximum for an misde- omitted). case, (quotations In our Iowa clas- years. Ann. meanor is two See Iowa Code alleged aggravated sifies the conduct an (West Supp.1997). § 903.1.2 1994 & Looking misdemeanor. to Iowa’s classifica- law, felony a is if it federal federal offense a tion, we determine that Father Hartz’s al- punishable by year pris- more than is one leged felony conduct does not constitute a 3559(a)(5) (1994). § on. See 18 U.S.C. Doe under federal law. punish- argues that the terms of “[b]ecause may year, predicate ment exceed one the alleged We find sexual conduct offense, although aggravated an misdemean- felony would not constitute a under either law, ‘felony’ is a or under Iowa result, federal or state law. As a the conduct Appellees’ federal construction.” Br. at 18. is not a “crime of violence” under VAWA’s fails, however, argument This because the element, required definition because the first against made Father Hartz would felony, that the crime be a is not satisfied. not violate federal criminal law and therefore punishable felony not be as a An
could under act would come within the § meaning federal law. of 18 U.S.C. upon Haggerty, alleged exploitation
Doe relies United States v. The that Doe claims not come wherein we occurred would within the purposes sentencing meaning concluded that for of of the offenses described in 18 conviction, § prior drug a state which is the second re- federal 13981(d)(2)(A). felony. quired In of conviction could be considered element Section Haggerty, Haggerty’s prior a “crime of violence” in relevant we found defines that, part felony drug conviction was a for federal as an “offense that is a nature, sentencing purposes because the maximum its involves a substantial risk that imprisonment physical person property term of available under state force or may year. law for the offense exceeded one of another be used the course of 16(b). illegal committing id. But the for which he the offense.” 18 U.S.C. conduct was also a crime that Father Hartz’s convicted state court was We determined above alleged under a federal criminal conduct is not a under either Con- Act, actually Necessarily, the con- trolled Substances and thus state or federal law. law, Haggerty, illegal to court was a crime under federal Similar the facts in also Act. conduct for which Briones-Mata was convicted the Controlled Substances definition, satisfy purpose arousing ... for the or this which client duct also fails satisfying offense be a felo- the sexual desires of the counselor requires that the Therefore, ny. therapist includ[ing] kissing” we need discuss sec- or ... ... or definition, part touching ond which certain clothed or unclothed areas 709.15.1(f)(2) body. that the conduct involve substantial Iowa Code physical risk that force be used engages “pattern A in a practice engage or scheme of conduct to C. prohibited] guilty felony. is of a [the conduct” 709.15.1(f)(1). §Id. not and do not address the defen- We need claims. Because Doe dants’ constitutional view, Contrary majority’s alleg- to the VAWA, claim has failed to state a necessary counseling relationship, es the use subject-matter jurisdiction lacking. is force, physical or threatened use denying order of the District Court defen- sexually scheme of In abusive conduct. dants’ motion to dismiss reversed insofar complaint, alleges Father Hartz is a has as it finds that Doe stated VAWA emotionally member of clergy, she “was respects. vacated in all other and is dependent upon as her counselor [him] with directions that case is remanded priest,” therapist’ and he was “a ‘counselor or complaint be dismissed. The dismissal shall prejudice right to Doe’s be without assert 709.15.1(a).” Doe asserts Father Hartz her state law claims in state court. twice “fondled and [once] [her] kissed for the purpose arousing satisfying his sex- and/or FAGG, Judge, dissenting. Circuit desires,” ual and Father Hartz’s acts “consti- my colleagues Because use the lack of pattern, practice, tute a or scheme of conduct pleading prema in notice details inherent engage ... in sexual conduct with an turely complaint, to dismiss Doe’s I dissent. *6 emotionally dependent patient or client with- plead the liberal standards of notice in ing, plead particular supporting Doe need not 709.15.1(f)(1).” In addition to Father demands, majority facts as the but need Doe, Hartz’s assaults on Doe asserts church give plain “a short and statement of the claim officials told her Father Hartz had made relief,” showing is entitled to [she] Fed. woman, sexual advances on another had been 8(a)(2). Gibson, Conley R.Civ.P. See v. 355 professionally evaluated before because of 99, 102-03, 2 L.Ed.2d 80 people sexual advances on other other (1957); Corp. Litig., In re NationsMart Sec. communities, and had been accused of fon- (8th Cir.1997). 130 F.3d 315 dling young girl in the church’s school. To show she is entitled to on relief her favor, Viewing claim, allegations Doe’s in her VAWA Doe must Father Hartz giving simplified her the benefit notice gender-motivated felony committed a standards, pleading I physical conclude Doe has suffi involved an element of force or sub ciently physical being stantial risk of stated a VAWA claim. force used Unlike 13981(c), majority, I Supreme her. See 42 do not doubt the Iowa (d)(2)(A); 16; allegations stating 18 U.S.C. Brzonkala v. Court would view the as Vir 709.15.1(f)(1) (2). Univ., ginia Polytechnic §§ Inst. & State 132 violation of Iowa Code — Indeed, F.3d I examining believe Doe the Iowa alleged enough support finding Supreme has “emphasized per Court has type acting professional Father Hartz’s conduct constituted this son's roles ‘have a dis proportionate they under Iowa law. See Crisonino v. influence on those serve’ Auth., City Housing F.Supp. responsibility New York scrupulous and thus have a (S.D.N.Y. 1997) (state 393-94 may ly propriety.” observe the bounds of State v. 13981(c) claim). (Iowa 1997) Allen, serve as basis for VAWA 337 n. 2 N.W.2d omitted). The Iowa Code (quoted Although counselor or ther case case Doe’s apist conduct, engaging “[a]ny discovery from pretrial falter after or other emotionally dependent with an procedures, allegations withstand dismissal now. are sufficient to insur do not show some complaint’s on the
mountable bar to relief
face, stage, at required for dismissal this surely give the defendants fair notice of basis, Conley, at claim’s see Thus, I affirm at 103. would
district court’s denial of the motion dis ques
miss and consider the constitutional Brzonkala, presented.
tions (holding Congress 964-73 acted authority enacting
its Commerce Clause
VAWA). America, Appellee,
UNITED STATES of
v. Douglas CAIN, Appellant.
Errol America, Appellee,
UNITED STATES CAIN, Stephen Appellant.
Paul
Nos. 96-4144. Appeals, States Court of
United
Eighth Circuit. Sept.
Submitted
Decided Jan.