Legal Case Summary

I'm going to go to the court. May I please the court? My name is Christopher Leach and I represent the appellant Christina Cruz. The district court in this case committed errors of law when it dismissed Miss Cruz's claims based on the defendant's affirmative defenses under the statute of limitations. She they erroneously dismissed claims under the traffic victims protection act by refusing to apply a ten year statute of limitations under current law then in effect. And dismissed Miss Cruz's claims under the FLS set the Fair Labor Standards Act and state law breach of contract by refusing to credit Miss Cruz's credible allegations warranting equitable tolling, like to address the trafficking victims protection act. Now the district court misapplied the land graph retroactivity analysis in this case when it refused to apply the ten year limitation period to Miss Cruz's unexpired claims under the trafficking victims protection act. In 2008 Congress extended the limitations period from four years to ten years because in the legislative history Congress recognized that the ten year period was necessary to give trafficking victims a more realistic time period to file their claims. Now the district court in this case refused to apply the longer period and instead applied the shorter period because it found no congressional intent to find to apply the longer limitations period. That was incorrect because under the land graph analysis congressional intent is not the relevant standard when the statute in question does not have an impermissible retroactive effect. Now just getting to the land graph test since that's the main standard in this case. There are three steps to approaching a statute regarding pre-enactment conduct. The first is whether or not the statute itself explicitly states the temporal reach of the statute. The second is whether or not the statute in question has an impermissible retroactive effect in that for our cases the key standard. And then if there is no, if there is an impermissible retroactive effect only then you look to the congressional intent. So just applying these factors to the case right here, your honor

. The statute in question the 2008 extension statute does not have any language in the statute regarding the temporal reach of the statute. And because of that then we have to look to the next step in the land graph analysis. Sorry, your arm. The next step in the land graph analysis which is whether there's an impermissible retroactive effect and this court and the Supreme Court has explained that an impermissible retroactive effect is one that attaches new consequences to past conduct and that is most often seen in the context of the expost facto clause where a legislature attempts to criminalize conduct that had already occurred. Now in the context of the statute of limitations your honor the key ingredient is whether or not the claim had expired at the time that the statute of limitations extension took effect because if you think in terms of a new consequences on the day before the limitations effect took effect the defendants were liable to the same exact as extent as they were the day after the limitations period was extended the only difference being that they are liable for a longer period of time. And this court and this court has explained that that is not a this court explained that that is not an issue at least in the expost facto context albeit in an unpublished decision in the United States versus Markham but the Supreme Court has reiterated that standard in the stoke ner case where in addressing an extended limitations period as to an unexpired claim the court said very clearly that this holding does not affect any any attempts to extend the statute of limitations to an unexpired claim. And the reason for this your honor is simple that the at both times prior before and after the limitations period took effect the defendant was never free from pursuit and always had the same incentives to keep records of their innocence or do any of the things to preserve their evidence of innocence should a claim arise later. Now applying that standard to our case your honor miss Cruz's claims had were had not yet expired by the time had not yet expired by the time the TVPA amendments took effect in 2008. We look at the timeline of the case miss Cruz was brought to the United States in 2002 and she escaped on January 17th 2008 and our contention is that her all of her claims accrued her none of all of her claims accrued on the date at the very latest on the very I'm sorry at the very earliest on the date she escaped on January 17th 2008 either under a tolling theory or under a continuing violation theory. And so because all of the claims all of the claims had accrued on January 17th 2008 she had four years from that date to file suit but because Congress extended the statute of claims accrued that meant that she then was able to benefit from the tenure statute of limitations. The district court dismissed her claims and refused to apply that standard and at the very least this court should reverse on the TVPA issue for that. Now there are other claims we have your honor under the under the Fair Labor Standards Act. Oh I'm sorry I wanted to address the one that's addressed first the appellate the appellate is only real contention under the TVPA your honor. The appellance the appellate is only contention with respect to application of the extended limitations period is that some section of the 2008 amendments included a one an effective date provision saying that the statute would apply 180 days after the statute took effect and I think as we explain in our brief that does not that does not apply to this case for two reasons

. First is that the the limitation the effective date provision that the appellance site the appellate site is does not actually apply to title two of the of the the 2008 amendments and second that even if it did apply that's not the type of language that the Supreme Court is said actually dictates the statutes temporal reach. So if you're if the course no questions about that I'll proceed to the Fair Labor Standards Act and contract claims for the equitable tolling arguments. Now Miss Cruz brought two variants of an equitable tolling argument in this case a one that I'd like to address first is with respect to the Fair Labor Standards Act claims. The district court aired by dismissing her claims because it refused to apply the advance Vance the world pool actual notice standard to miss Cruz's claims under a Department of Labor regulations. The appellees as employers were obligated to provide and posting notice a learn miss Cruz to her right to a minimum wage. They did not do that and are complaint is clear that miss Cruz had no notice of those rights under the law and as a result at least under the Vance standard that this court this court. The Vance test that this court laid out the miss Cruz's claims did miss Cruz's claims on the F LSA told until she received actual notice of her rights under the F LSA or when she first first acquired an attorney and at that period of the district record right here has no record right here does not all would not allow the district court to conclude that miss Cruz acquired actual notice of her claims. And any the record right here is unclear as to when miss Cruz acquired actual notice and so the district court thus could not dismiss miss Cruz's complaint based on the affirmative defenses that the appellent that the appellees raised here. The statute limitations for the Fair Labor Standards Act is three years, Your Honor, because we let that's the affirmative defense they raised. The defendant several raise the affirmative defense of a statute of limitations. Yes, Your Honor. They raised the affirmative defense of a statute of limitations and our the reason why we the and on a motion because right here the key Your Honor is that this was raised on a motion to dismiss and so this court's case law is very clear that a that a district court cannot dismiss a claim on a motion to dismiss unless on the four corners of the complaint the district court has everything it needs to dismiss the complaint. Right here what we had your honor under the Vance V. Whirlpool standard is evidence that miss Cruz was isolated in the United States and did not know her rights to a minimum wage

. There also is no evidence in the in the complaint that the appellents ever provided miss Cruz with the requisite notices to alert her to her right to a minimum wage. And so under the Vance V. Whirlpool standard this court cannot the district court could not dismiss miss Cruz is complaint they solely on the statute of limitations particularly without having any dissent effect any factual record before it. And that's that's in the context of these equitable tolling arguments Your Honor. That's the key fault the district court had your honor is that it dismissed solely on the pleadings based on affirmative defense without a factual record behind it. So that's most of the cases that if we turn to the sort of standard equitable tolling argument the extraordinary circumstances put forward by the defendants that prohibit this question first. Does she have to alleged though in her pleadings that she remained unaware. I mean you said Mrs. Cruz miss Cruz was unaware that defendants paid her small fraction of the minimum wage required. Okay, but I don't see anything in the pleadings to say that this lack of knowledge persisted throughout the period before filing the complaint. Your Honor there are there is and the question is do you need to alleged that in the complaint and if not why not. No, we did not need to have that specific allegation in the complaint because we are not we have no up the statute of limitations is an affirmative defense on the defendants behalf and under this court's case all we have no obligation whatsoever to anticipate an affirmative to their affirmative defenses. Had if the district court was inclined to to disagree with that and believe that we needed to plead additional facts then the proper course at the very least would have been to dismiss without prejudice and allow us to submit an amended complaint for. I guess my from my perspective I'm just wondering whether this is entirely statute of limitations oriented or whether it's part of your claim in other words say that

. She never received notice that and and does this complaint say she never received notice the complaint your honor says that she's not the complaint your honor. I believe it's a paragraph on paragraph 27 of the complaint is the key elegant here and says that at the when she began her employment she did not know that she received. This at this time this cruise did not know that United States law required a significantly higher minimum wage and so do we need to do you're saying there doesn't need to be an allegation that she remained in the dark essentially. No, no, you're there doesn't need to be an allegation that she remained in the dark if the district court was declined to build to credit these allegations and keep in mind your honor the district court did not address our advance argument whatsoever so it's unclear that whether the district court ever considered this this aspect of actual of our equitable tolling argument so there we had no obligation to plead that in the complaint because do so would have essentially required us to anticipate their statute of limitations defense and then plead around that. And that's not what that's not what the rule this the circuit said. I thought most of these I may be incorrect or I thought most cases that this issue comes up because you get the ruling you have a permission to file an amended complaint to supply the missing factual information. The amended complaint is permission to file tonight. You have an A.S. Your honor we did not ask permission after the after the ruling came out because the district court dismissed with prejudice if you see the timeline of the case I believe it's either the day after the same day had the memorandum opinion dismissing the complaint and then filed the rule 58 judgment dismissing with prejudice so under those circumstances your honor there seem. The district court made very clear that it's that that was its final ruling and that we were better we were better suited to bring this claim to the court because as I explained to judge keen and we had no obligation to plead around this affirmative defense in the circumstance. So going to the and just leading from that to the equity the larger the extraordinary circumstances equitable tolling your honor we the complaint the complaint is very clear as to the grounds for her extraordinary circuit that is the tough sell in Virginia you have to acknowledge that you. May have gotten a bad drawn that you have three Virginia judges you know the law in Virginia. Virginia is hostile to equitable tolling

. Well I mean totally hostile you have to acknowledge that. Well your honor it's. I don't acknowledge it the standard the standard that the Virginia Supreme Court has applied and the actual the law itself there's a there's a specific specific standard for reach of contract cases that says that if the defendant puts up an impediment to filing suit. Then that is the equitable tolling standard and then the Walker the Walker the 2005 Walker case says that that impediment may be direct or indirect and so on the facts that. On the Walker. I'm sorry your honor wish case. You both said on that case. I did not know that your honor I apologize. I learned something new every day well if your honors if your honors this inclined to extend the statute of limitations for the for the Virginia statute. I just think that's a particularly tough sell for you. Well well. Under your argument if we it seems like me if we have a contract. You think contracts breached and you say all right I want to see you in the contract and I say I go ahead I'm now going to file a counterplane I want to see you for twice as much. It's like to me that under the way you've made your argument that that suffices to told because you're put in fear now because you're now going to have a counter claim filed against your honor that's a that might be a circumstance that would not warrant a tolling in that circumstance but right here we do not have

. That type of circumstance here the type of thing you're saying the fear here though is here that the law would be enforced how can that be a basis for equitable tolling under Virginia law. A threat to bring the law down on you. Well for somebody who was violating the law. Well it's not a threat to bring down the law your honors the threat to improperly use the law Mrs. Cruz is visa lap Mrs. Cruz is visa I'm sorry you're on I know I know and I appreciate that. Essentially this employer I mean there's some real problems here no question but what I'm saying though in terms of the equitable tolling the threat here was I'm going to use the law against you well why can't you report somebody. You can do it it's certainly legal to do it you're saying that it was just another sign of their bad faith or whatever but but if you're if you're calling the authorities to report a violation of the law I don't see how under Virginia law that can be a basis for equitable tolling. Your honor first I have to be some some fraud some some kind of to see something not just ill will and and here it seems to me all you have in terms of this the state law issues is ill will general ill will plus a an enforcement of a law. Well your honor I'll raise to if I might time as expired may I answer the there's two answers your honor first the the enforcement of the law point this is a clear misuse this this is essentially the TVPA has one of its the under the TVPA one of the ways in which you can coerce a party a coerce somebody into labor is by improperly you know question but we're talking about a contract. I know your honor but your your your question is whether or not the mere threat to enforce the law is sufficient coercion to prevent to constitute a basis for equitable tolling of a contract claim under Virginia law. So your honor I take your point that you're that the court is skeptical about that we are complaint our brief is clear as to what our theory of that is but if if this court is disinclined to apply this to the breach of contract claim at the very least that's a basis under the standard federal equitable tolling argument that was. The facts that are clear in our complaint in the district court made an error of law by dismissing the complaint without giving miscruise the opportunity to take discovery or to it the very least a mentor complaint I'll reserve the balance of my time for. Thank you

. Thank you. Good morning. I'm Timothy battle I represent the appa Lee's here. Neil Demypa Michelle Barba and Ferdinand Barba. The question for review is where miscruise the plan of reportedly escaped from the defendant my clients on January 17, 20, with the assistance of a friend and another person that nevertheless waited five and one half years until July 16, 2013 to commence this action did the district court correctly rule at all of miscruise claims are barred by the applicable statu limitations. We contend the district court. United States Judge Claude Hilton and Eastern District of Alexandria did indeed make the right decision on all three claims which are there two traffic TVPA claims also the Fair Labor Standards Act and a breach of contract under the state law we contend that they're correct on all three. The standard of review for this appellate panel for the statu limitations is denovo since Judge Hilton granted a motion to dismiss. However, if we get to the equitable tolling issue that is an abuse of discretion standard. As to the first the TVPA claim where the statu limitations change from four years to 10 years. The because miscruise causes of action accrued no later than January 17, 20, when she left the home in Clifton, Virginia. Her TVPA claims her timebar at unless the amendment in the 2008 act adding the 10 years statu limitations, Section 1595 applies retroactively. And then we get into the land graph analysis the United States Supreme Court case from 1994. And Judge Hilton in his nine page opinion started addressing that at page five

. He did indeed include the land graph analysis in his in his opinion and addressed those those elements. He indeed specifically ruled that the that under the land graph analysis there was there was that there was not a basis to give the 10 year statute retroactive effect. Well, where is the impermissible retroactive effect in this case? I mean, a statute of limitations was still alive. I mean, a claim was alive. Excuse me when the statute of limitations was extended. So it's not like they were breathing new life into a dead claim. No. So what is the impermissible retroactive? The impermissible retroactive effect is incited at page 11 of the brief of while the effect is particularly prevalent in the context of claims that have already expired. There's no question that extending the statute of limitations retroactively increased a defendant's liability for past conduct. And there's a citation to land graph at page 280 by increasing the period of time during which a defendant can be sued even in cases where the claims had not expired at the time the limitations period was extended. And there's a citation to the enter mortgage acceptance case. The under that argument you would never have a situation where the statute of limitations could be extended while the existing statute of limitations would still run. That seems to be not an infrequent of times. In judge A

.G. it certainly could be perhaps extended to par. But in this case, it certainly is a significant event that a three individuals would face liability for an extra six years under the TVPA with all of the attorney's fees and damages. And the extensive language of that. And which to bring claim is the only difference between the older statute of limitations and newer statute of limitations. That is correct. And the other while it is not may not be clear it is certainly arguable that the the 2008 act specifically provided this title and the amendments made by this title shall take effect 180 days after the date of the enactment of this act. And one of those amendments to this title was the amendment changing the set the civil action. Statue of limitations for four to 10 years. The members of the panel. It is interesting that in the extensive research done by both sides in this case, it appears. Although council for repellent says that every court facing this issue other than the district court, of course, Judge Hilton has applied the 10 year limitations period to unexpired claims. But there's only two citations to district court cases. None of those is binding on this court and it appears that none of the US courts of appeal have spoken on this issue

. It appears to be a matter of first impression. I think this is the case where we ought to find another one. Under the circumstances of this case, yes, sir. If there was no increase in liability and isn't that what Baldwin talks about, this is an mere extension of the liability period. Judge Canaan, there is, it is clear that the exposure was now present for six additional years. There is no. There is no additional. It is, it is not as clear as making something illegal that had never been illegal before and applying it retroactively. That is, that is clear on the record. What's your best case supporting you that deals with this? I didn't have to be under the statute, but there are lots of statute on the patients that get extended. What's your best case that supports your art? Your Honor, I, there is a district court case cited in this brief that is that came. I don't believe so. Tell us what the new legal consequences. It seems to me when you have, under the language of Baldwin, it seems to me when you have an extension of the statute of limitations, you have an extension of the same legal consequences. It's not a new legal consequence like breathing life into a dead claim. So how do you fit your case into the concept of a new legal consequence, which is required for an impermissible retroactive effect? Your Honor, our, our, the, the citations before to the, would be the, the pre 91th third at 410 enter a second circuit case, and it is about about the burxtending the statute of limitations. But Your Honor is correct. That is, that is all there is. There is no, there is not something that became improper as a result of this. It is simply an extension of the, of the, from four years to ten years. Also, I would point, draw the panel's attention to, in Judge Hilton's opinion, beginning on page five, the nine page opinion, page five and six, he does go through this analysis. I believe in a careful fashion and come down with that, the indication that it is not retroactive. I'd like to move on, please, to the second. We have two more issues to address here in the, in the, in the next is the Fair Labor Standards Act. And the Fair Labor Standards Act is a much shorter part of the brief, because we think it is much clearer and quite, quite, quite definite. And that is the district court correctly concluded that Ms. Cruz claim under the FLSA is barred under a three year statute of limitations. And there's a citation to section 255

. It's not a new legal consequence like breathing life into a dead claim. So how do you fit your case into the concept of a new legal consequence, which is required for an impermissible retroactive effect? Your Honor, our, our, the, the citations before to the, would be the, the pre 91th third at 410 enter a second circuit case, and it is about about the burxtending the statute of limitations. But Your Honor is correct. That is, that is all there is. There is no, there is not something that became improper as a result of this. It is simply an extension of the, of the, from four years to ten years. Also, I would point, draw the panel's attention to, in Judge Hilton's opinion, beginning on page five, the nine page opinion, page five and six, he does go through this analysis. I believe in a careful fashion and come down with that, the indication that it is not retroactive. I'd like to move on, please, to the second. We have two more issues to address here in the, in the, in the next is the Fair Labor Standards Act. And the Fair Labor Standards Act is a much shorter part of the brief, because we think it is much clearer and quite, quite, quite definite. And that is the district court correctly concluded that Ms. Cruz claim under the FLSA is barred under a three year statute of limitations. And there's a citation to section 255. And, and, and whether it is two years or three years, if it is a willful violation, it becomes three years. But either way, they are simply, they're simply barred by the very hard dates we have here. One of the reasons that allow Judge Hilton to dismiss this on the statute of limitations. And it's a lengthy complaint is that we have some very definite, very hard dates here. The three contracts involved began January 17, 2002, 2002, 2004, 2005. The leaving the home, the escape was January 17, 2008, only six weeks before that last contract was about to end. And that's a very definite date. That is, it's not a sometime in this year, sometime in this period. On January 17, 2008, she left the home. And July 16, 2013 is equally definite date when they filed suit and federal court. Under the Federal Labor Standards Act, the, the, there is some question which we've addressed in the brief, whether it's willful by simply coming up with easy, conclusory language, but whether it's a willful violation, which is three years, or whether it is a two year statute of limitations, it's clearly late. The next item. Councilor, what do you think the rule is? Scarred variety situation. Plain of thousands complain

. And, and, and whether it is two years or three years, if it is a willful violation, it becomes three years. But either way, they are simply, they're simply barred by the very hard dates we have here. One of the reasons that allow Judge Hilton to dismiss this on the statute of limitations. And it's a lengthy complaint is that we have some very definite, very hard dates here. The three contracts involved began January 17, 2002, 2002, 2004, 2005. The leaving the home, the escape was January 17, 2008, only six weeks before that last contract was about to end. And that's a very definite date. That is, it's not a sometime in this year, sometime in this period. On January 17, 2008, she left the home. And July 16, 2013 is equally definite date when they filed suit and federal court. Under the Federal Labor Standards Act, the, the, there is some question which we've addressed in the brief, whether it's willful by simply coming up with easy, conclusory language, but whether it's a willful violation, which is three years, or whether it is a two year statute of limitations, it's clearly late. The next item. Councilor, what do you think the rule is? Scarred variety situation. Plain of thousands complain. Defendant comes in and 12 be six motion and says, have an affirmative offense, statute of limitations. Is the plaintiff entitled to discovery without anything more? Or what's the rule in that situation, which is not the episode of time? But the case law is if it's if there are contested facts that may affect that decision. And it is too early to to make that decision, then the court should wait to see what happens with the contested facts. But in this, when you have someone who absolutely, definitely left on in 2008, January 17, 2008, then, and that's it. That is, there's no need for, as there is no need to, there is a case I'll get to in a moment on the equitable tolling argument that, that says the court does not have to, the court does not have to, there is no. The plaintiff is not have to anticipate a affirmative offense of the statute of limitations when filing a plea. Judge A.G. the standard is, and this is in the joint appendix at 112 and 115. The district court, herlectally, ruled that Ms. Cruz had failed to plead sufficient facts for the doctrine of equitable tolling to be applied, and dismissed those claims with prejudice as no amount of repleting could fix the problem given what Ms. Cruz had already pleaded. Right, but if she's entitled to actual notice, once there's a failure to post notice, then facts could make a difference. If she remained without knowledge of her rights under the minimum wage loss, then that fact could be developed in discovery

. Defendant comes in and 12 be six motion and says, have an affirmative offense, statute of limitations. Is the plaintiff entitled to discovery without anything more? Or what's the rule in that situation, which is not the episode of time? But the case law is if it's if there are contested facts that may affect that decision. And it is too early to to make that decision, then the court should wait to see what happens with the contested facts. But in this, when you have someone who absolutely, definitely left on in 2008, January 17, 2008, then, and that's it. That is, there's no need for, as there is no need to, there is a case I'll get to in a moment on the equitable tolling argument that, that says the court does not have to, the court does not have to, there is no. The plaintiff is not have to anticipate a affirmative offense of the statute of limitations when filing a plea. Judge A.G. the standard is, and this is in the joint appendix at 112 and 115. The district court, herlectally, ruled that Ms. Cruz had failed to plead sufficient facts for the doctrine of equitable tolling to be applied, and dismissed those claims with prejudice as no amount of repleting could fix the problem given what Ms. Cruz had already pleaded. Right, but if she's entitled to actual notice, once there's a failure to post notice, then facts could make a difference. If she remained without knowledge of her rights under the minimum wage loss, then that fact could be developed in discovery. Could it not? Your Honor, I believe potentially, I can't say it's impossible, but it certainly is not likely in this case, and in particular, we've addressed that, because there is a large amount of case law on the, the appellant has raised the failure to notice failure to post the minimum wage poster, and we've addressed that. The one issue is that, all the people involved here, my three clients and the plaintiff, are from the Philippines, and they spoke variations of the Philippine language. So if, and I'm not, that fact, science is not even available in the Philippine language, but in particular, there is a great deal of. Right, Your Honor, but in the. Your Honor, there is a great deal of case law that indicates that the failure to post a notice informing its employees. Of their rights under the FLSA without more is not suffice to invoke the doctrine of equitable to only. And there is a, it's cited on page 25 and 26 of the brief, there is a large number of cases. And then the, and in particular, there's two decisions from the six United States Court of Appeals for the sixth circuit, which indicates that. The doctrine of equitable towing does not save the plaintiff's claims where the employer fails to post the required Department of Labor notice of employees rights under the FLSA. Your Honor, this is contrary to the TVPA issue, which appears to be a matter of first impression for the United States courts of appeals. And for this court, the sixth circuit has spoken on that one. Your Honor, your members of the panel moving toward the, the breach of contract claim that again, I think is even easier. And that one is that there are three contracts here. One is in 2002

. Could it not? Your Honor, I believe potentially, I can't say it's impossible, but it certainly is not likely in this case, and in particular, we've addressed that, because there is a large amount of case law on the, the appellant has raised the failure to notice failure to post the minimum wage poster, and we've addressed that. The one issue is that, all the people involved here, my three clients and the plaintiff, are from the Philippines, and they spoke variations of the Philippine language. So if, and I'm not, that fact, science is not even available in the Philippine language, but in particular, there is a great deal of. Right, Your Honor, but in the. Your Honor, there is a great deal of case law that indicates that the failure to post a notice informing its employees. Of their rights under the FLSA without more is not suffice to invoke the doctrine of equitable to only. And there is a, it's cited on page 25 and 26 of the brief, there is a large number of cases. And then the, and in particular, there's two decisions from the six United States Court of Appeals for the sixth circuit, which indicates that. The doctrine of equitable towing does not save the plaintiff's claims where the employer fails to post the required Department of Labor notice of employees rights under the FLSA. Your Honor, this is contrary to the TVPA issue, which appears to be a matter of first impression for the United States courts of appeals. And for this court, the sixth circuit has spoken on that one. Your Honor, your members of the panel moving toward the, the breach of contract claim that again, I think is even easier. And that one is that there are three contracts here. One is in 2002. One is in 2004 and one is in 2005. And the last contract was due to expire six weeks after Ms. Cruz left the home. Only six weeks later, she was caring for an infant who was about to start first grade. That was her main duty. So the statute of limitations on the breach of contract action. It's not, it's, it begins on those contracts 20, March, 2002, January, 2004 and February, 2005. And it is, that is, and Judge Hilton's opinion properly expresses that it is not as. Council for a talent contends that everything started on January 17, 28 when she left the premises. Therefore, in conclusion, we believe that the district court correctly ruled on all three statutes, limitations. And in summary, that the TVPA that should not have the tenure statute limitations should not have retroactive effect. And that the four year application for your statute limitations should apply to that the Fair Labor Standards Act, even much clearer, much simpler matter is barred under a three year statute of limitations. Also that the doctrine of equitable tolling does not save either of these items. And finally, that the breach of contract claim goes to the three contracts, 2002, 2004 and 2005

. One is in 2004 and one is in 2005. And the last contract was due to expire six weeks after Ms. Cruz left the home. Only six weeks later, she was caring for an infant who was about to start first grade. That was her main duty. So the statute of limitations on the breach of contract action. It's not, it's, it begins on those contracts 20, March, 2002, January, 2004 and February, 2005. And it is, that is, and Judge Hilton's opinion properly expresses that it is not as. Council for a talent contends that everything started on January 17, 28 when she left the premises. Therefore, in conclusion, we believe that the district court correctly ruled on all three statutes, limitations. And in summary, that the TVPA that should not have the tenure statute limitations should not have retroactive effect. And that the four year application for your statute limitations should apply to that the Fair Labor Standards Act, even much clearer, much simpler matter is barred under a three year statute of limitations. Also that the doctrine of equitable tolling does not save either of these items. And finally, that the breach of contract claim goes to the three contracts, 2002, 2004 and 2005. And that also is clear that the statute of limitations bars these claims. We ask that this panel affirm the decision by the United States District Court in Alexandria in its entirety. And in the event that there is any problem with any of those elements, we ask that the. There be attention to the TVPA, the Fair Labor Standards Act and the state claim for breach of contract separately because those other two are extremely clear. Thank you for your time. Thank you. Just a moment. May please the court. Just like to address a couple points that four points that were brought up in Mr. Battles argument. First, regarding the effective date of the TVPA as we made clear in our brief that effective date provision that Mr. Battles sites was contained in title four of the reauthorization act of 2005. And when it says the this title and the amendments made by this title referred to title four of that statute not title two. So that so the effective date provision, even if it mattered, could have no application here

. And that also is clear that the statute of limitations bars these claims. We ask that this panel affirm the decision by the United States District Court in Alexandria in its entirety. And in the event that there is any problem with any of those elements, we ask that the. There be attention to the TVPA, the Fair Labor Standards Act and the state claim for breach of contract separately because those other two are extremely clear. Thank you for your time. Thank you. Just a moment. May please the court. Just like to address a couple points that four points that were brought up in Mr. Battles argument. First, regarding the effective date of the TVPA as we made clear in our brief that effective date provision that Mr. Battles sites was contained in title four of the reauthorization act of 2005. And when it says the this title and the amendments made by this title referred to title four of that statute not title two. So that so the effective date provision, even if it mattered, could have no application here. Second, regarding the impermissible retroactive effect, which is something that Judge Keenan discussed with Mr. Battles quite frequently. The underland graph, the key analysis here for our case is that it is not impermissively retroactive simply because a statute quote, upsets settled expectations. The only impermissible retroactive effect is where it changes the definition of a crime or increases upon it or creates new consequences for past conduct. That's the only impermissible retroactive effect here. And as Judge A.G. noted, the statute of limitations is not the statute of extending a statute of limitations where a claim is not expired does not do that. Turning to the F.L.S.A. point, Mr. Battles on the other side noted that when this subject to Judge Keenan's questioning that there could be a series of facts that show that missed that my client did not receive actual notice of her claim

. Second, regarding the impermissible retroactive effect, which is something that Judge Keenan discussed with Mr. Battles quite frequently. The underland graph, the key analysis here for our case is that it is not impermissively retroactive simply because a statute quote, upsets settled expectations. The only impermissible retroactive effect is where it changes the definition of a crime or increases upon it or creates new consequences for past conduct. That's the only impermissible retroactive effect here. And as Judge A.G. noted, the statute of limitations is not the statute of extending a statute of limitations where a claim is not expired does not do that. Turning to the F.L.S.A. point, Mr. Battles on the other side noted that when this subject to Judge Keenan's questioning that there could be a series of facts that show that missed that my client did not receive actual notice of her claim. The statute of limitations took effect just to give your honor a timeline here. The statute of limitations is three years for these claims and that's very clear because we've alleged a willful violation. So we only need from the date of her escape of January 17th, 2008, the statute of limitations only needs to toll for two and a half years until July of 2010 because then that triggers the three year window to erase the claim. During that time period, Mr. or the other side is essentially conceded that it is possible that there are a set of facts that discovery could produce that show that Miss Cruz did not have actual notice of her rights under the F.L.S.A. And under that standard, the district court could not have dismissed my client's complaint based solely on the record on emotion to dismiss. And the last point I want to raise is with respect to the language of the TVPA flyers, something Mr. Battles raised in his brief when we discussed an hour of library. Miss Miss Cruz is native languages, talogong, I apologize if I miss pronouncing it, but that is the native language of where she comes from the Philippines, but she also does have limited English proficiency and the poster that the F.L.S

. The statute of limitations took effect just to give your honor a timeline here. The statute of limitations is three years for these claims and that's very clear because we've alleged a willful violation. So we only need from the date of her escape of January 17th, 2008, the statute of limitations only needs to toll for two and a half years until July of 2010 because then that triggers the three year window to erase the claim. During that time period, Mr. or the other side is essentially conceded that it is possible that there are a set of facts that discovery could produce that show that Miss Cruz did not have actual notice of her rights under the F.L.S.A. And under that standard, the district court could not have dismissed my client's complaint based solely on the record on emotion to dismiss. And the last point I want to raise is with respect to the language of the TVPA flyers, something Mr. Battles raised in his brief when we discussed an hour of library. Miss Miss Cruz is native languages, talogong, I apologize if I miss pronouncing it, but that is the native language of where she comes from the Philippines, but she also does have limited English proficiency and the poster that the F.L.S.A. Department of Labor requires be posted is very clear and all it says is not all it says, but the key languages, seven 25 or whatever the relevance that effect, whatever the relevant minimum wage was says, seven 25 per hour. And that's something that if we take all facts and Miss Cruz's favor on the complaint, something that she could understand. And so for those for those reasons, you're on our list. This court has further questions like to ask this court to reverse the district court's decision on the TVPA claims that F.L.S.A. claims and the state breach of contract claims. Thank you very much. We'll come down to greet Councilman for C to our last case.

I'm going to go to the court. May I please the court? My name is Christopher Leach and I represent the appellant Christina Cruz. The district court in this case committed errors of law when it dismissed Miss Cruz's claims based on the defendant's affirmative defenses under the statute of limitations. She they erroneously dismissed claims under the traffic victims protection act by refusing to apply a ten year statute of limitations under current law then in effect. And dismissed Miss Cruz's claims under the FLS set the Fair Labor Standards Act and state law breach of contract by refusing to credit Miss Cruz's credible allegations warranting equitable tolling, like to address the trafficking victims protection act. Now the district court misapplied the land graph retroactivity analysis in this case when it refused to apply the ten year limitation period to Miss Cruz's unexpired claims under the trafficking victims protection act. In 2008 Congress extended the limitations period from four years to ten years because in the legislative history Congress recognized that the ten year period was necessary to give trafficking victims a more realistic time period to file their claims. Now the district court in this case refused to apply the longer period and instead applied the shorter period because it found no congressional intent to find to apply the longer limitations period. That was incorrect because under the land graph analysis congressional intent is not the relevant standard when the statute in question does not have an impermissible retroactive effect. Now just getting to the land graph test since that's the main standard in this case. There are three steps to approaching a statute regarding pre-enactment conduct. The first is whether or not the statute itself explicitly states the temporal reach of the statute. The second is whether or not the statute in question has an impermissible retroactive effect in that for our cases the key standard. And then if there is no, if there is an impermissible retroactive effect only then you look to the congressional intent. So just applying these factors to the case right here, your honor. The statute in question the 2008 extension statute does not have any language in the statute regarding the temporal reach of the statute. And because of that then we have to look to the next step in the land graph analysis. Sorry, your arm. The next step in the land graph analysis which is whether there's an impermissible retroactive effect and this court and the Supreme Court has explained that an impermissible retroactive effect is one that attaches new consequences to past conduct and that is most often seen in the context of the expost facto clause where a legislature attempts to criminalize conduct that had already occurred. Now in the context of the statute of limitations your honor the key ingredient is whether or not the claim had expired at the time that the statute of limitations extension took effect because if you think in terms of a new consequences on the day before the limitations effect took effect the defendants were liable to the same exact as extent as they were the day after the limitations period was extended the only difference being that they are liable for a longer period of time. And this court and this court has explained that that is not a this court explained that that is not an issue at least in the expost facto context albeit in an unpublished decision in the United States versus Markham but the Supreme Court has reiterated that standard in the stoke ner case where in addressing an extended limitations period as to an unexpired claim the court said very clearly that this holding does not affect any any attempts to extend the statute of limitations to an unexpired claim. And the reason for this your honor is simple that the at both times prior before and after the limitations period took effect the defendant was never free from pursuit and always had the same incentives to keep records of their innocence or do any of the things to preserve their evidence of innocence should a claim arise later. Now applying that standard to our case your honor miss Cruz's claims had were had not yet expired by the time had not yet expired by the time the TVPA amendments took effect in 2008. We look at the timeline of the case miss Cruz was brought to the United States in 2002 and she escaped on January 17th 2008 and our contention is that her all of her claims accrued her none of all of her claims accrued on the date at the very latest on the very I'm sorry at the very earliest on the date she escaped on January 17th 2008 either under a tolling theory or under a continuing violation theory. And so because all of the claims all of the claims had accrued on January 17th 2008 she had four years from that date to file suit but because Congress extended the statute of claims accrued that meant that she then was able to benefit from the tenure statute of limitations. The district court dismissed her claims and refused to apply that standard and at the very least this court should reverse on the TVPA issue for that. Now there are other claims we have your honor under the under the Fair Labor Standards Act. Oh I'm sorry I wanted to address the one that's addressed first the appellate the appellate is only real contention under the TVPA your honor. The appellance the appellate is only contention with respect to application of the extended limitations period is that some section of the 2008 amendments included a one an effective date provision saying that the statute would apply 180 days after the statute took effect and I think as we explain in our brief that does not that does not apply to this case for two reasons. First is that the the limitation the effective date provision that the appellance site the appellate site is does not actually apply to title two of the of the the 2008 amendments and second that even if it did apply that's not the type of language that the Supreme Court is said actually dictates the statutes temporal reach. So if you're if the course no questions about that I'll proceed to the Fair Labor Standards Act and contract claims for the equitable tolling arguments. Now Miss Cruz brought two variants of an equitable tolling argument in this case a one that I'd like to address first is with respect to the Fair Labor Standards Act claims. The district court aired by dismissing her claims because it refused to apply the advance Vance the world pool actual notice standard to miss Cruz's claims under a Department of Labor regulations. The appellees as employers were obligated to provide and posting notice a learn miss Cruz to her right to a minimum wage. They did not do that and are complaint is clear that miss Cruz had no notice of those rights under the law and as a result at least under the Vance standard that this court this court. The Vance test that this court laid out the miss Cruz's claims did miss Cruz's claims on the F LSA told until she received actual notice of her rights under the F LSA or when she first first acquired an attorney and at that period of the district record right here has no record right here does not all would not allow the district court to conclude that miss Cruz acquired actual notice of her claims. And any the record right here is unclear as to when miss Cruz acquired actual notice and so the district court thus could not dismiss miss Cruz's complaint based on the affirmative defenses that the appellent that the appellees raised here. The statute limitations for the Fair Labor Standards Act is three years, Your Honor, because we let that's the affirmative defense they raised. The defendant several raise the affirmative defense of a statute of limitations. Yes, Your Honor. They raised the affirmative defense of a statute of limitations and our the reason why we the and on a motion because right here the key Your Honor is that this was raised on a motion to dismiss and so this court's case law is very clear that a that a district court cannot dismiss a claim on a motion to dismiss unless on the four corners of the complaint the district court has everything it needs to dismiss the complaint. Right here what we had your honor under the Vance V. Whirlpool standard is evidence that miss Cruz was isolated in the United States and did not know her rights to a minimum wage. There also is no evidence in the in the complaint that the appellents ever provided miss Cruz with the requisite notices to alert her to her right to a minimum wage. And so under the Vance V. Whirlpool standard this court cannot the district court could not dismiss miss Cruz is complaint they solely on the statute of limitations particularly without having any dissent effect any factual record before it. And that's that's in the context of these equitable tolling arguments Your Honor. That's the key fault the district court had your honor is that it dismissed solely on the pleadings based on affirmative defense without a factual record behind it. So that's most of the cases that if we turn to the sort of standard equitable tolling argument the extraordinary circumstances put forward by the defendants that prohibit this question first. Does she have to alleged though in her pleadings that she remained unaware. I mean you said Mrs. Cruz miss Cruz was unaware that defendants paid her small fraction of the minimum wage required. Okay, but I don't see anything in the pleadings to say that this lack of knowledge persisted throughout the period before filing the complaint. Your Honor there are there is and the question is do you need to alleged that in the complaint and if not why not. No, we did not need to have that specific allegation in the complaint because we are not we have no up the statute of limitations is an affirmative defense on the defendants behalf and under this court's case all we have no obligation whatsoever to anticipate an affirmative to their affirmative defenses. Had if the district court was inclined to to disagree with that and believe that we needed to plead additional facts then the proper course at the very least would have been to dismiss without prejudice and allow us to submit an amended complaint for. I guess my from my perspective I'm just wondering whether this is entirely statute of limitations oriented or whether it's part of your claim in other words say that. She never received notice that and and does this complaint say she never received notice the complaint your honor says that she's not the complaint your honor. I believe it's a paragraph on paragraph 27 of the complaint is the key elegant here and says that at the when she began her employment she did not know that she received. This at this time this cruise did not know that United States law required a significantly higher minimum wage and so do we need to do you're saying there doesn't need to be an allegation that she remained in the dark essentially. No, no, you're there doesn't need to be an allegation that she remained in the dark if the district court was declined to build to credit these allegations and keep in mind your honor the district court did not address our advance argument whatsoever so it's unclear that whether the district court ever considered this this aspect of actual of our equitable tolling argument so there we had no obligation to plead that in the complaint because do so would have essentially required us to anticipate their statute of limitations defense and then plead around that. And that's not what that's not what the rule this the circuit said. I thought most of these I may be incorrect or I thought most cases that this issue comes up because you get the ruling you have a permission to file an amended complaint to supply the missing factual information. The amended complaint is permission to file tonight. You have an A.S. Your honor we did not ask permission after the after the ruling came out because the district court dismissed with prejudice if you see the timeline of the case I believe it's either the day after the same day had the memorandum opinion dismissing the complaint and then filed the rule 58 judgment dismissing with prejudice so under those circumstances your honor there seem. The district court made very clear that it's that that was its final ruling and that we were better we were better suited to bring this claim to the court because as I explained to judge keen and we had no obligation to plead around this affirmative defense in the circumstance. So going to the and just leading from that to the equity the larger the extraordinary circumstances equitable tolling your honor we the complaint the complaint is very clear as to the grounds for her extraordinary circuit that is the tough sell in Virginia you have to acknowledge that you. May have gotten a bad drawn that you have three Virginia judges you know the law in Virginia. Virginia is hostile to equitable tolling. Well I mean totally hostile you have to acknowledge that. Well your honor it's. I don't acknowledge it the standard the standard that the Virginia Supreme Court has applied and the actual the law itself there's a there's a specific specific standard for reach of contract cases that says that if the defendant puts up an impediment to filing suit. Then that is the equitable tolling standard and then the Walker the Walker the 2005 Walker case says that that impediment may be direct or indirect and so on the facts that. On the Walker. I'm sorry your honor wish case. You both said on that case. I did not know that your honor I apologize. I learned something new every day well if your honors if your honors this inclined to extend the statute of limitations for the for the Virginia statute. I just think that's a particularly tough sell for you. Well well. Under your argument if we it seems like me if we have a contract. You think contracts breached and you say all right I want to see you in the contract and I say I go ahead I'm now going to file a counterplane I want to see you for twice as much. It's like to me that under the way you've made your argument that that suffices to told because you're put in fear now because you're now going to have a counter claim filed against your honor that's a that might be a circumstance that would not warrant a tolling in that circumstance but right here we do not have. That type of circumstance here the type of thing you're saying the fear here though is here that the law would be enforced how can that be a basis for equitable tolling under Virginia law. A threat to bring the law down on you. Well for somebody who was violating the law. Well it's not a threat to bring down the law your honors the threat to improperly use the law Mrs. Cruz is visa lap Mrs. Cruz is visa I'm sorry you're on I know I know and I appreciate that. Essentially this employer I mean there's some real problems here no question but what I'm saying though in terms of the equitable tolling the threat here was I'm going to use the law against you well why can't you report somebody. You can do it it's certainly legal to do it you're saying that it was just another sign of their bad faith or whatever but but if you're if you're calling the authorities to report a violation of the law I don't see how under Virginia law that can be a basis for equitable tolling. Your honor first I have to be some some fraud some some kind of to see something not just ill will and and here it seems to me all you have in terms of this the state law issues is ill will general ill will plus a an enforcement of a law. Well your honor I'll raise to if I might time as expired may I answer the there's two answers your honor first the the enforcement of the law point this is a clear misuse this this is essentially the TVPA has one of its the under the TVPA one of the ways in which you can coerce a party a coerce somebody into labor is by improperly you know question but we're talking about a contract. I know your honor but your your your question is whether or not the mere threat to enforce the law is sufficient coercion to prevent to constitute a basis for equitable tolling of a contract claim under Virginia law. So your honor I take your point that you're that the court is skeptical about that we are complaint our brief is clear as to what our theory of that is but if if this court is disinclined to apply this to the breach of contract claim at the very least that's a basis under the standard federal equitable tolling argument that was. The facts that are clear in our complaint in the district court made an error of law by dismissing the complaint without giving miscruise the opportunity to take discovery or to it the very least a mentor complaint I'll reserve the balance of my time for. Thank you. Thank you. Good morning. I'm Timothy battle I represent the appa Lee's here. Neil Demypa Michelle Barba and Ferdinand Barba. The question for review is where miscruise the plan of reportedly escaped from the defendant my clients on January 17, 20, with the assistance of a friend and another person that nevertheless waited five and one half years until July 16, 2013 to commence this action did the district court correctly rule at all of miscruise claims are barred by the applicable statu limitations. We contend the district court. United States Judge Claude Hilton and Eastern District of Alexandria did indeed make the right decision on all three claims which are there two traffic TVPA claims also the Fair Labor Standards Act and a breach of contract under the state law we contend that they're correct on all three. The standard of review for this appellate panel for the statu limitations is denovo since Judge Hilton granted a motion to dismiss. However, if we get to the equitable tolling issue that is an abuse of discretion standard. As to the first the TVPA claim where the statu limitations change from four years to 10 years. The because miscruise causes of action accrued no later than January 17, 20, when she left the home in Clifton, Virginia. Her TVPA claims her timebar at unless the amendment in the 2008 act adding the 10 years statu limitations, Section 1595 applies retroactively. And then we get into the land graph analysis the United States Supreme Court case from 1994. And Judge Hilton in his nine page opinion started addressing that at page five. He did indeed include the land graph analysis in his in his opinion and addressed those those elements. He indeed specifically ruled that the that under the land graph analysis there was there was that there was not a basis to give the 10 year statute retroactive effect. Well, where is the impermissible retroactive effect in this case? I mean, a statute of limitations was still alive. I mean, a claim was alive. Excuse me when the statute of limitations was extended. So it's not like they were breathing new life into a dead claim. No. So what is the impermissible retroactive? The impermissible retroactive effect is incited at page 11 of the brief of while the effect is particularly prevalent in the context of claims that have already expired. There's no question that extending the statute of limitations retroactively increased a defendant's liability for past conduct. And there's a citation to land graph at page 280 by increasing the period of time during which a defendant can be sued even in cases where the claims had not expired at the time the limitations period was extended. And there's a citation to the enter mortgage acceptance case. The under that argument you would never have a situation where the statute of limitations could be extended while the existing statute of limitations would still run. That seems to be not an infrequent of times. In judge A.G. it certainly could be perhaps extended to par. But in this case, it certainly is a significant event that a three individuals would face liability for an extra six years under the TVPA with all of the attorney's fees and damages. And the extensive language of that. And which to bring claim is the only difference between the older statute of limitations and newer statute of limitations. That is correct. And the other while it is not may not be clear it is certainly arguable that the the 2008 act specifically provided this title and the amendments made by this title shall take effect 180 days after the date of the enactment of this act. And one of those amendments to this title was the amendment changing the set the civil action. Statue of limitations for four to 10 years. The members of the panel. It is interesting that in the extensive research done by both sides in this case, it appears. Although council for repellent says that every court facing this issue other than the district court, of course, Judge Hilton has applied the 10 year limitations period to unexpired claims. But there's only two citations to district court cases. None of those is binding on this court and it appears that none of the US courts of appeal have spoken on this issue. It appears to be a matter of first impression. I think this is the case where we ought to find another one. Under the circumstances of this case, yes, sir. If there was no increase in liability and isn't that what Baldwin talks about, this is an mere extension of the liability period. Judge Canaan, there is, it is clear that the exposure was now present for six additional years. There is no. There is no additional. It is, it is not as clear as making something illegal that had never been illegal before and applying it retroactively. That is, that is clear on the record. What's your best case supporting you that deals with this? I didn't have to be under the statute, but there are lots of statute on the patients that get extended. What's your best case that supports your art? Your Honor, I, there is a district court case cited in this brief that is that came. I don't believe so. Tell us what the new legal consequences. It seems to me when you have, under the language of Baldwin, it seems to me when you have an extension of the statute of limitations, you have an extension of the same legal consequences. It's not a new legal consequence like breathing life into a dead claim. So how do you fit your case into the concept of a new legal consequence, which is required for an impermissible retroactive effect? Your Honor, our, our, the, the citations before to the, would be the, the pre 91th third at 410 enter a second circuit case, and it is about about the burxtending the statute of limitations. But Your Honor is correct. That is, that is all there is. There is no, there is not something that became improper as a result of this. It is simply an extension of the, of the, from four years to ten years. Also, I would point, draw the panel's attention to, in Judge Hilton's opinion, beginning on page five, the nine page opinion, page five and six, he does go through this analysis. I believe in a careful fashion and come down with that, the indication that it is not retroactive. I'd like to move on, please, to the second. We have two more issues to address here in the, in the, in the next is the Fair Labor Standards Act. And the Fair Labor Standards Act is a much shorter part of the brief, because we think it is much clearer and quite, quite, quite definite. And that is the district court correctly concluded that Ms. Cruz claim under the FLSA is barred under a three year statute of limitations. And there's a citation to section 255. And, and, and whether it is two years or three years, if it is a willful violation, it becomes three years. But either way, they are simply, they're simply barred by the very hard dates we have here. One of the reasons that allow Judge Hilton to dismiss this on the statute of limitations. And it's a lengthy complaint is that we have some very definite, very hard dates here. The three contracts involved began January 17, 2002, 2002, 2004, 2005. The leaving the home, the escape was January 17, 2008, only six weeks before that last contract was about to end. And that's a very definite date. That is, it's not a sometime in this year, sometime in this period. On January 17, 2008, she left the home. And July 16, 2013 is equally definite date when they filed suit and federal court. Under the Federal Labor Standards Act, the, the, there is some question which we've addressed in the brief, whether it's willful by simply coming up with easy, conclusory language, but whether it's a willful violation, which is three years, or whether it is a two year statute of limitations, it's clearly late. The next item. Councilor, what do you think the rule is? Scarred variety situation. Plain of thousands complain. Defendant comes in and 12 be six motion and says, have an affirmative offense, statute of limitations. Is the plaintiff entitled to discovery without anything more? Or what's the rule in that situation, which is not the episode of time? But the case law is if it's if there are contested facts that may affect that decision. And it is too early to to make that decision, then the court should wait to see what happens with the contested facts. But in this, when you have someone who absolutely, definitely left on in 2008, January 17, 2008, then, and that's it. That is, there's no need for, as there is no need to, there is a case I'll get to in a moment on the equitable tolling argument that, that says the court does not have to, the court does not have to, there is no. The plaintiff is not have to anticipate a affirmative offense of the statute of limitations when filing a plea. Judge A.G. the standard is, and this is in the joint appendix at 112 and 115. The district court, herlectally, ruled that Ms. Cruz had failed to plead sufficient facts for the doctrine of equitable tolling to be applied, and dismissed those claims with prejudice as no amount of repleting could fix the problem given what Ms. Cruz had already pleaded. Right, but if she's entitled to actual notice, once there's a failure to post notice, then facts could make a difference. If she remained without knowledge of her rights under the minimum wage loss, then that fact could be developed in discovery. Could it not? Your Honor, I believe potentially, I can't say it's impossible, but it certainly is not likely in this case, and in particular, we've addressed that, because there is a large amount of case law on the, the appellant has raised the failure to notice failure to post the minimum wage poster, and we've addressed that. The one issue is that, all the people involved here, my three clients and the plaintiff, are from the Philippines, and they spoke variations of the Philippine language. So if, and I'm not, that fact, science is not even available in the Philippine language, but in particular, there is a great deal of. Right, Your Honor, but in the. Your Honor, there is a great deal of case law that indicates that the failure to post a notice informing its employees. Of their rights under the FLSA without more is not suffice to invoke the doctrine of equitable to only. And there is a, it's cited on page 25 and 26 of the brief, there is a large number of cases. And then the, and in particular, there's two decisions from the six United States Court of Appeals for the sixth circuit, which indicates that. The doctrine of equitable towing does not save the plaintiff's claims where the employer fails to post the required Department of Labor notice of employees rights under the FLSA. Your Honor, this is contrary to the TVPA issue, which appears to be a matter of first impression for the United States courts of appeals. And for this court, the sixth circuit has spoken on that one. Your Honor, your members of the panel moving toward the, the breach of contract claim that again, I think is even easier. And that one is that there are three contracts here. One is in 2002. One is in 2004 and one is in 2005. And the last contract was due to expire six weeks after Ms. Cruz left the home. Only six weeks later, she was caring for an infant who was about to start first grade. That was her main duty. So the statute of limitations on the breach of contract action. It's not, it's, it begins on those contracts 20, March, 2002, January, 2004 and February, 2005. And it is, that is, and Judge Hilton's opinion properly expresses that it is not as. Council for a talent contends that everything started on January 17, 28 when she left the premises. Therefore, in conclusion, we believe that the district court correctly ruled on all three statutes, limitations. And in summary, that the TVPA that should not have the tenure statute limitations should not have retroactive effect. And that the four year application for your statute limitations should apply to that the Fair Labor Standards Act, even much clearer, much simpler matter is barred under a three year statute of limitations. Also that the doctrine of equitable tolling does not save either of these items. And finally, that the breach of contract claim goes to the three contracts, 2002, 2004 and 2005. And that also is clear that the statute of limitations bars these claims. We ask that this panel affirm the decision by the United States District Court in Alexandria in its entirety. And in the event that there is any problem with any of those elements, we ask that the. There be attention to the TVPA, the Fair Labor Standards Act and the state claim for breach of contract separately because those other two are extremely clear. Thank you for your time. Thank you. Just a moment. May please the court. Just like to address a couple points that four points that were brought up in Mr. Battles argument. First, regarding the effective date of the TVPA as we made clear in our brief that effective date provision that Mr. Battles sites was contained in title four of the reauthorization act of 2005. And when it says the this title and the amendments made by this title referred to title four of that statute not title two. So that so the effective date provision, even if it mattered, could have no application here. Second, regarding the impermissible retroactive effect, which is something that Judge Keenan discussed with Mr. Battles quite frequently. The underland graph, the key analysis here for our case is that it is not impermissively retroactive simply because a statute quote, upsets settled expectations. The only impermissible retroactive effect is where it changes the definition of a crime or increases upon it or creates new consequences for past conduct. That's the only impermissible retroactive effect here. And as Judge A.G. noted, the statute of limitations is not the statute of extending a statute of limitations where a claim is not expired does not do that. Turning to the F.L.S.A. point, Mr. Battles on the other side noted that when this subject to Judge Keenan's questioning that there could be a series of facts that show that missed that my client did not receive actual notice of her claim. The statute of limitations took effect just to give your honor a timeline here. The statute of limitations is three years for these claims and that's very clear because we've alleged a willful violation. So we only need from the date of her escape of January 17th, 2008, the statute of limitations only needs to toll for two and a half years until July of 2010 because then that triggers the three year window to erase the claim. During that time period, Mr. or the other side is essentially conceded that it is possible that there are a set of facts that discovery could produce that show that Miss Cruz did not have actual notice of her rights under the F.L.S.A. And under that standard, the district court could not have dismissed my client's complaint based solely on the record on emotion to dismiss. And the last point I want to raise is with respect to the language of the TVPA flyers, something Mr. Battles raised in his brief when we discussed an hour of library. Miss Miss Cruz is native languages, talogong, I apologize if I miss pronouncing it, but that is the native language of where she comes from the Philippines, but she also does have limited English proficiency and the poster that the F.L.S.A. Department of Labor requires be posted is very clear and all it says is not all it says, but the key languages, seven 25 or whatever the relevance that effect, whatever the relevant minimum wage was says, seven 25 per hour. And that's something that if we take all facts and Miss Cruz's favor on the complaint, something that she could understand. And so for those for those reasons, you're on our list. This court has further questions like to ask this court to reverse the district court's decision on the TVPA claims that F.L.S.A. claims and the state breach of contract claims. Thank you very much. We'll come down to greet Councilman for C to our last case