Ditullio

Opinion by Judge B. FLETCHER; Dissent by Judge CALLAHAN.

OPINION

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, 18 U.S.C. § 1589 et seq. (hereinafter “TVPA”). Ditullio’s complaint requests compensatory damages in excess of $5 million, punitive damages of up to $20 million, interests, costs, and attorney’s fees.

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, 18 U.S.C. § 1595 (which became effective on December 19, 2003), applies retroactively to conduct occurring before its effective date,…

dissenting:

I agree with my colleagues that 18 U.S.C. § 1595 does not apply to Boehm’s pre-December 19, 2003 conduct. However, despite Boehm’s abhorrent conduct, I dissent from the majority’s determination that punitive damages are available under § 1595. It may be desirable to authorize the recovery of punitive damages under § 1595, but Congress has yet to do so, and we are not empowered to do so for Congress.

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 § 1595.

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…

Darryl L. Jones, Law Office of Darryl Jones, Anchorage, Alaska, for the plaintiff-appellant.

W. Sherman Ernouf, Law Offices of Ernouf and Coffey, P.C., Anchorage, Alaska, for the defendant-appellee.

Before: BETTY B. FLETCHER, ANDREW J. KLEINFELD, and CONSUELO M. CALLAHAN, Circuit Judges.

Opinion by Judge B. FLETCHER; Dissent by Judge CALLAHAN.

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, 18 U.S.C. § 1589 et seq. (hereinafter "TVPA"). Ditullio's complaint requests compensatory damages in excess of $5 million, punitive damages of up to $20 million, interests, costs, and attorney's fees.

After denying Ditullio's motion for summary judgment, and Boehm's motion to dismiss for failure to state a claim, the district court…