United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-3086

_____________ Jane Doe, * * Plaintiff - Appellee, * * United States of America, * * Intervenor Plaintiff - Appellee, * * Appeals from the United States v. * District Court for the * Northern District of Iowa. Father Gerald Hartz, * * Defendant - Appellant, * * Bishop Lawrence Soens; St. Lawrence * Church; Roman Catholic Diocese of * Sioux City, Iowa, * * Defendants. *-2- ___________ No. 97-3087

___________ Jane Doe, * * Plaintiff - Appellee, * * United States of America, * * Intervenor Plaintiff - Appellee, * * v. * * Father Gerald Hartz, * * Defendant, * * Bishop Lawrence Soens; St. Lawrence * Church; Roman Catholic Diocese, of * Sioux City, Iowa, * * Defendants - Appellants. *

_____________ Submitted: December 8, 1997 Filed: January 26, 1998

_____________ Before FAGG, BOWMAN, and LOKEN, Circuit Judges.

_____________ BOWMAN, Circuit Judge.After the District Court's ruling, Doe conceded she was not asserting a VAWA 1 claim against the Bishop, the Church, or the Diocese. The District Court dismissed the VAWA count only as to those defendants. Appellants' Add. at 133. -3- Plaintiff Jane Doe filed a civil action in federal district court against Fathe r Gerald Hartz, Bishop Lawrence Soens, St. L awrence Church, and the Roman Catholic Di ocese of Sioux City, Iowa. Doe alleged that Father Hartz made sexual advance s toward he r. She asserted a federal claim under the Violence Against Women Ac t (VAWA), 42 U.S.C. §§ 13981-14040 (1994), and various other state law claims. The defenda nts moved to dismiss the suit, and the District Court denied the motion. The 1
case is before us on an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) (1994). The defendants argue that Do e cannot state a claim under VAWA, that VAWA is an u nconstitutional exercise of congressional power, and that the First Amendment bars Doe's state law claims. We hold that Doe has failed to state a claim that comes within the scope of VAWA. Accordingly, her VAWA claim must be dismissed. There being no basis other than the VAWA claim for federal jurisdiction over th e supplemental state law claims, the District Court is directed to dismiss those claims as well.

I. Doe alleges that Father Hartz sexually assaulted her on December 3, 1994. Doe claims that when she arrived at St. Lawrence Church to sing during evening mass , Father Hartz "came up behind her, grabbed her with both of his hands and pulled her back into his body, held her tightly and kissed her neck." Appellants' App. at 2 (Complaint). Doe also al leges that later the same evening, Father Hartz "rubbed [her] back up and down with his hand" while she was "standing and talking with othe r parishio ners." Id. at 2, 5. As a result, Doe claims she suffered severe emotiona l trauma. See id. at 3.-4-

VAWA establishes a "right to be free from crimes of violence motivated b y gend er." 42 U.S.C. § 13981(b). The Act creates a civil cause of action against "[a ] person . . . who commits a crime of violence motivated by gender and thus deprive s anothe r of the right." Id. § 13981(c). Thus, the civil claim is dependant upon a predicate offense--a crime of violence.
The pre dicate offense upon which Doe bases her VAWA claim is defined b y Iowa Code section 709.15. Doe claims that Father Hartz's alleged sexual advance s vio lated Iowa's criminal law against sexual exploitation by a counselor or therapist

. Se e Iowa Code Ann. § 709.15 (West 1993). Iowa law prohibits a counselor o r therapist who provides mental health services from engaging in any sexual conduct with a patient or client. See id.

II.
The defendants are appealing the District Court's order denying their motion to dismiss for failur

e to state a claim. See Fed. R. Civ. P. 12(b)(6). We review de novo a district court's denial of a motion to dismiss, viewing the allegations in the complaint in the light most favorable to the plaintiff. See Hafley v. Lohman , 90 F.3d 264, 26 6 (8th Cir. 1996), cert. denied , 117 S. Ct. 1081 (1997). We wi ll reverse the district court if it is clear that no relief could be granted even though the plaintiff could prove facts consis tent

with the allegations. See Hishon v. King & Spalding , 467 U.S. 69, 7 3 (1984 ). Thus, only if there is some "insuperable bar to relief" will we reverse th e District Court's denial of the motion to dismiss. See Bramlet v. Wilson , 495 F.2d 714, 716 (8th Cir. 1974).

De fendants argue that the District Court should have granted their motion t o dismiss based upon the First Amendment, the uncons titutionality of VAWA, and Doe's failure to state a claim. A fund amental rule of judicial restraint requires us to consider nonconstitutional grounds for a decisi on prior to reaching any constitutional questions.Doe also a sserts that "[a]s a member of the clergy, Defendant Hartz is a 2 'counselor or therapist' with in the meaning of [the] Iowa Code." Appellants' App. at 5 (Complaint). This statement does nothing to bolster Doe's complaint, however , because it is merely a legal conclusion. Doe must allege facts t o support her claim. See Oliver v. Resolution Trust Corp. , 955 F.2d 583, 585 (8th Cir. 1992). -5- See Jean v. Nelson , 472 U.S. 846, 854 (1985). Accordingly, we will first conside r whether Doe has st ated a claim under VAWA. We reach the constitutional questions only if we determine Doe has properly stated a claim under the Act.
A.
To state a claim for a civil c ause of action under VAWA, a plaintiff must allege that the defendant commi tted a predicate offense--a crime of violence. See 42 U.S.C. § 13981(c) . Doe claims her complaint sufficiently alleges Father Hartz's sexua l advances violated Iowa Code section 709.15. We disagree and therefore hold that she has failed to state a VAWA claim. The Iowa statute in qu estion prohibits "[s]exual exploitation by a counselor or therapist ." Iowa Code Ann. § 709.15.1.f. A "'[c]ounselor or therapist' means a physician, psychologist . . . member of the clergy, or any other person, whether or not license d or registered by the state, who provides or purports to provide mental health services ." Id. § 709.15.1.a. "Mental health service" is defined as "the treatment , asses sment, or counseling of another person for a cognitive, behavioral, emotional , mental, or social dysfunction." Id. § 709.15.1.d. Doe alleged in her complai nt that Father Hartz "served as a counselor to [her]." Appellants' App. at 5 (Complaint). But even viewing the factual alle gations in the light 2 most favo rable to Doe, we find she has failed to allege that Father Hartz was Doe' s "cou nselor

or therapist" within the meaning of the Iowa statute. Nothing in th e complaint alleges that Doe received "mental health services" from Father Hartz, yetAviolation of the Iowa statute requires that the sexual conduct occur eithe r 3 during the time at which the patient is emotionally dependent, see Iowa Code Ann

. § 709.15.1.f.(2), or within o ne year after the termination of the mental health services. Id. § 709.15.1.f.(3). -6- this is a requisite element of the Iowa Code's definition of "counselor or therapist. " IowaCode Ann. § 709.15.1.a. To adequately plead that she received mental healt h
se rvices, Doe was required to assert factual allegations that she received "treatment , assessment, or counseling" for a "dysfunction." Id. § 709.15.1.d. Doe's complain t contains no factual allegations sug gesting that she received services from Father Hartz for a ny sort of dysfunction. Nor does the complaint allege that she was receiving the requisi te services from Father Hartz at any time proximate to his alleged sexua l advances. Doe has not stated a claim under VAWA because she has failed to plead

3 a violation of the Iowa statute, the predicate offense upon which she relies.

B. Even if we assume arguendo that Doe has stated a claim under the Iow a statute, v iolation of that statute in the manner Doe has alleged does not constitute a felony, which is required under VAWA. To state a civil claim under the Act, a plaintiff mustallege that a person committed a "crime of violence." 42 U.S.C. § 13981(c)

. VAWA defines a "crime of violence" as "an act or series of acts that would constitute
a fel ony against the person . . . and that would come within the meaning of State o r Federal offenses described in section 16 of Title 18." Id. § 13981(d)(2)(A).

1. An act that would constitute a felony
The alleged sexual advances that Doe claims occurred would not constitute a fel ony. Doe reminds us that VAWA does not indicate whether the requisite "felony" should be determined according to state or federal law. Doe contends that "felony"-7-

under VAWA i s satisfied when the act constitutes a felony under either. Withou t deciding whether Doe's contention is correct, we conclude that the alleged sexua l conduct constitutes a felony under neither Iowa nor federal law.
Under the Iowa statute, a "pattern or practice or scheme of conduct" to engage in a ny sexual conduct with a patient or client is a class "D" felony. See Iowa Cod e Ann. §§ 709. 15.1.f.(1), 709.15.2. Sexual conduct with a patient or client that is no t part o f a pattern, practice, or scheme is an aggravated misdemeanor under the Iow a code. See id. § 709.15.3. We believe the Iowa Supreme Court would hold t hat the two instances of sexual conduct alleged in the complaint, which happened on the same day and within about an hour of each other, do not constitute a p attern, practice, or scheme of conduct within the meaning of section 709.15. Therefore, even accepting Doe' s allegations, the most serious violation Father Hartz allegedly comm itted under state law is an aggravated misdemeanor. Doe argues that even

an aggravated misdemeanor under Iowa law constitutes a felo ny under federal law. Under Iowa law, the maximum penalty for an aggravate d misdemeanor is two years. SeeIowa Code Ann. § 903.1.2 (West 1994 & Supp. 1997). Under federal law, a federal offense is a felony if it is punishable b y more than one year in prison. See 18 U.S.C. § 3559(a)(5) (1994). Doe argues that "[b]ecause the terms of pun ishment may exceed one year, the predicate offense, although an aggravate d misdemeanor under Iowa law , is a 'felony' under the federal construction." Appellees' Br. a t 18. This argument fails, however, because the allegations made against Father Hartz would no t violate federal criminal law and therefore could not be punishable as a felony under federal law.

Doe relies upon United States v. Haggerty , 85 F.3d 403, 406 (8th Cir. 1996) , wherein we concluded that for purposes of sentencing upon a federal convi ction, a prior state drug conviction could be considered a felony. In Haggerty , we found tha t Haggerty's prior state drug conviction was a felony for federal sentencing purposesSimilar to the facts in Haggerty , the illegal conduct for w hich Briones-Mata was 4 convicted in state court was also a crime under federal law, the Controlled Substances Act. -8- becau se the maximum term of imprisonment available under state law for the offense exceeded one year. See id. But the illegal conduct for which he was co nvicted in state court was also a crime under a federal c riminal statute, the Controlled Substances Act, andthus actually could have been punished under federal law. We rightly borrowed the federal classification of a felony in H aggerty because the illegal conduct, for which Haggerty happened to be convicted in state court, also constit uted a violation of federal
cr iminallaw. In the case at hand, however, we cannot simply borrow the federa l classification of a felony and apply it to conduct that could not constitute a crime under federal law.
Furtherm ore, in United States v. Briones-Mata , 116 F.3d 308, 309 (8th Cir

. 1997), we specifically looked to the state law's classificatio n of an offense to determine wheth er the illegal conduct was a felony for federal sentencing purposes. W e concluded th at "a state drug offense can be an aggravated felony if the offense i s classified as a felony under the law of the relevant state, even if the same offense would be punishable only as a misdemeanor under feder al law." Id. (quotations omitted). In 4 our case, Iowa classifies the alle ged conduct as an aggravated misdemeanor. Looking to Iow a's classification, we determine that Father Hartz's alleged conduct does no t constitute a felony under federal law.

We find that the alleged sexual conduct would not constitute a felony unde r either federal or state law. As a result, the conduct is not a "crime of violence" under VAWA's definition because the first required element, tha t the crime be a felony, is not satisfied. 2. An act that would come within the meaning of 18 U.S.C. § 16-9-

The alleged sexual exploitation that Doe claims occurr ed would not come within the meaning of the offenses described in 18 U.S.C. § 16 (1994), which is the second required elem ent of § 13981(d)(2)(A). Section 16 defines a "crime of violence" i n relevant part as an "offense that is a felony and that, by its nature, involves a substantial risk that p hysical force against the person or property of another may be used in th e cour se of committing the offense." 18 U.S.C. § 16(b). We determined above tha t Father Hartz's alleged conduct is not a felony under either state or federal law

. Necess arily, the conduct also fails to satisfy this definition, which requires that th e predicate offense be a felony. Therefore, we need not discuss the second part of the de finition, which requires that the alleged conduct involve a substantial risk tha t physical force may be used.
C.
We need not and do not add ress the defendants' constitutional claims. Because Doe has failed to state a claim under VAWA, subject-matter jurisdiction is lacking

. The o rder of the District Court denying defendants' motion to dismiss is reverse d insofa r as it finds that Doe has stated a VAWA claim and is vacated in all othe r respects. T he case is remanded with directions that the complaint be dismissed. The dismissal shall be without prejudice to Doe's right to a ssert her state law claims in state court. FAGG, Circuit Judge, dissenting.

Bec ause my colleagues use the lack of details inherent in notice pleadin g premat urely to dismiss Doe’s complaint, I dissent. Under the liberal standards o f noti ce pleading, Doe need not plead particular supporting facts as the majorit y demands , but need only give “a short and plain statement of the claim showing [she] is entitled to relief,” Fed. R. Civ. P. 8(a)(2). See Conley v. Gibson , 355 U.S. 41, 47 (1957); In re Nationsmart Corp. Sec. Litig. , 130 F.3d 309, 315 (8th Cir. 1997).-10-

To show she is entitled to relief on her VAWA claim, Doe must allege Fathe r Hartz committed a gender-motivat ed felony that involved an element of physical force or substantial risk of physical force being used against her. See 42 U.S.C. § 13981(c), (d)(2)(A); 18 U.S.C. § 16; Brzonkala v. Virginia Polytechnic Inst. & State Univ. , No. 96-1814, 1997 WL 785529, at *13 (4th Cir. Dec. 23, 199 7). I believe Doe has alleged enough to support a findin g that Father Hartz’s conduct constituted this type of felony under Io wa law. See Crisonino v. New York City Housing Auth. , No. 96 CIV. 9742 HB, 1997 WL 726013, at *6 (S.D.N.Y. Nov. 18, 1997) (state felony may serveas basis for § 13981(c) VAWA claim). The Iowa Code prohibits a counselor or therapist from engaging in “[a]ny sexual conduct, wi th an emotionally dependent patient or client . . . for the purpose of arousing or satisfying the sexual desires of the counselor or therapist . . . includ[ing] . . . kissing” or touchin g certain clothed or unclothed areas of the body. IowaCode § 709.15.1(f)(2) (1997). A person who engages in a “pattern or practice
or scheme of conduct to engage in [the prohibited] conduct” is guilty of a felony. Id. § 709.15.1(f)(1). Contrary to the majority’s view, Doe alleges the necessary counselin g relatio nship, use or threatened use of physical force, and scheme of sexually abusive condu ct. In her complaint, Doe alleges Father Hartz is a member of the clergy, sh e “was emotionally dependent upon [him] as her counselor and priest,” and he was “ a ‘counselor or therapist’ within the mea ning of Iowa Code § 709.15.1(a).” Doe asserts Father Hartz twice “fondled and [once] k issed [her] for the purpose of arousing and/or satisfying his sexual desires,” and Father Hartz’s acts “constitute a pattern, practice , or scheme of conduct . . . to engage in sexual conduct with an emotionally dependent patient or c lient within the meaning of Iowa Code § 709.15.1(f)(1).” In addition t o Father Hartz’s assaults on Doe, Doe asserts church officials told her Father Hartz had made sexual advances on another woman, had been professionally evaluated befor e because of sexual advances on other people in other communities, and had bee n accused of fondling a young girl in the church’s school.-11-

Viewing Doe’s allegations in her favor, and giving her the benefit of simplified notice pleading standards, I conclude Doe has sufficiently stated a VAWA claim

. Unlike the majority, I do not doubt the Iowa Supreme Court would view the allegations
as stat ing a violation of Iowa Code §§ 709.15.1(f)(1)-(2). Indeed, in examining th e s t atute, the Iowa Supreme Court has “emphasized that persons acting in professional roles ‘have a disproportionate influence on those they serve’ and thus have a responsibility to scrupulously observe the bounds of propriety.” State v. Allen , 56 5 N.W.2d 333, 337 n.2 (Iowa 1997) (quoted case omitted). Although Doe’s case may falter af ter discovery or other pretrial procedures, the allegations in her complaint are suff icient to withstand dismissal now. The allegations do not show som e insurmountable bar to relief on the complaint’s face, as required for dismissal at thi s stage, and surely give the defendants fair notice of the claim’s basis, see Conley , 355 U.S. at 48. Thus, I would affirm the district court’s deni al of the motion to dismiss and consider the co nstitutional questions presented. See Brzonkala , 1997 WL 785529, at *1 5-25 (holding Congress acted within its Commerce Clause authority in enactin g VAWA). A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.