                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             AUG 17 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

JOSE GUADALUPE PEREZ-FARIAS; et                  No. 10-35397
al.,
                                                 D.C. No. 2:05-cv-03061-RHW
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

GLOBAL HORIZONS, INC; et al.,

              Defendants - Appellees.


                  Appeal from the United States District Court
                      for the Eastern District of Washington
                Robert H. Whaley, Senior District Judge, Presiding

                       Argued and Submitted July 12, 2011
                              Seattle, Washington

Before: CLIFTON and N.R. SMITH, Circuit Judges, and KORMAN, Senior
District Judge.**

       Plaintiffs Jose Guadalupe Perez-Farias, Jose F. Sanchez, and Ricardo

Betancourt (Workers) brought this action, as class representatives, against Global


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for Eastern New York, Brooklyn, sitting by designation.
Horizons, Inc. (Global), Green Acre Farms, Inc., Valley Fruit Orchards, LLC,

(collectively Growers) and Platte River Insurance Company on July 12, 2005.

      Workers appeal three issues from the district court’s proceedings. They

argue that 1) the district court erred in interpreting the Washington’s Farm Labor

Contractors Act’s (FLCA), Chapter 19, Wash. Rev. Code et seq., statutory

damages provision as discretionary; 2) the district court erred in determining the

Workers were not the prevailing party under the FLCA for the purpose of awarding

attorneys’ fees; and 3) the district court violated their Seventh Amendment right to

a jury trial by coming to a different conclusion than the jury on Global’s liability

regarding the Workers’ discrimination claims, which were brought under 42 U.S.C.

§ 1981 and the Washington Law Against Discrimination, Chapter 49.60 Wash.

Rev. Code et seq. ER 452-58.

      We have jurisdiction pursuant to 28 U.S.C. § 1291 and we AFFIRM in part

and REVERSE and REMAND in PART.

1.    Under Washington law, “[w]hen the language of a statute is clear and

unambiguous the meaning is derived from the words of the statute itself.” State v.

Keller, 19 P.3d 1030, 1035 (Wash. 2001). The reviewing court should:

      read the statute in its entirety. Each provision must be viewed in
      relation to other provisions and harmonized, if at all possible. . . .
      Statutes must be construed so that all language is given effect with no


                                          2
      portion rendered meaningless or superfluous. The court must also
      avoid constructions that yield unlikely, strange or absurd
      consequences.

Id. at 1035-36 (internal quotation marks, alterations, and citations omitted)

(emphasis added). The statute at issue, regarding damages to be awarded for

violations of the FLCA states:

      [I]f the court finds that the respondent has violated this chapter or any rule
      adopted under this chapter, it may award damages up to and including an
      amount equal to the amount of actual damages, or statutory damages of five
      hundred dollars per plaintiff per violation, whichever is greater, or other
      equitable relief.

Wash. Rev. Code § 19.30.170(2). Reading the provision in its entirety and giving

effect to all the language of the provision, it is apparent that the Washington

Legislature meant to instruct a court that it “may” choose between actual damages

and statutory damages of “five hundred dollars per plaintiff per violation,

whichever is greater.”

      Although the term “may” would normally support an interpretation that

awarding statutory damages is discretionary, Scannell v. City of Seattle, 648 P.2d

435, 438 (Wash. 1982), any other reading of the provision (than an instruction to

choose between the greater of statutory and actual damages) renders the clause

“whichever is greater” meaningless. Given that the legislature enacted the FLCA,

with a detailed statutory damages clause, it is unlikely that the legislature “used a


                                          3
permissive term simply to tell” the district court that it “may choose not to” award

damages. See Wilmot v. Kaiser Aluminum and Chem. Corp., 821 P.2d 18, 22

(Wash. 1991); cf. also Kehoe v. Fidelity Fed. Bank & Trust, 421 F.3d 1209, 1216-

17 (11th Cir. 2005) (construing a statutory damages clause commencing with the

word “may” to allow the district court discretion “to award actual damages, but not

less than liquidated damages in the amount of $2,500” (internal quotation marks

omitted)). Here, the term “may” similarly indicates that the district court may

choose between actual damages or “statutory damages of five hundred dollars per

plaintiff per violation, whichever is greater.”

      The Growers argument that the inclusion of the clause “or other equitable

relief” indicates the court had a choice to award less than $500 per plaintiff per

violation is unavailing. Washington law is consistent with the general rule that

equitable relief is separate from money damages. See Proctor v. Huntington, 238

P.3d 1117, 1121 (Wash. 2010) (discussing equitable relief as injunctive relief); cf.

Kobza v. Tripp, 18 P.3d 621, 624 (Wash. App. 2001) (“Because a quiet title action

is a claim for equitable relief, damages are ordinarily not allowed.”). Thus, the

third clause of the provision “or other equitable relief” would indicate that the

district court may have chosen non-monetary relief, such as specific performance

or an injunction of the laborers’ contracts for those that had been fired, if such


                                           4
relief had been available. However, monetary damages appear to have been the

correct remedy in this case. The the district court erred when it did not award the

Workers the full amount of mandatory statutory damages under the FLCA:

$1,998,500.

      The full amount of statutory damages is not “so severe and oppressive as to

be wholly disproportioned [sic] to the offense and obviously unreasonable.” St.

Louis, I.M. & S. Ry. Co. v. Williams, 251 U.S. 63, 66 (1919); see also United States

v. Citrin, 972 F.2d 1044, 1051 (9th Cir. 1992). The district court is, therefore,

reversed on the amount of statutory damages awarded under the FLCA and is

directed to enter judgment for the Workers in the amount of $1,998,500.1

2.    We remand the issue of attorneys’ fees under the FLCA, Wash. Rev. Code

§ 19.30.170(1) for further proceedings consistent with this disposition. Under

Washington law, “[a] ‘prevailing party’ is any party that receives some judgment

in its favor. If neither party completely prevails, the court must decide which, if

either, substantially prevailed. This question depends upon the extent of the relief

afforded the parties.” Guillen v. Contreras, 238 P.3d 1168, 1171 (Wash. 2010)

(internal quotation marks, alteration, and citations omitted). The Workers opted


      1
              Because it is unnecessary to the determination of the issue of statutory
damages, we deny the Workers’ Motion to Take Judicial Notice of the purported
legislative history of the FLCA.
                                          5
for statutory damages, which they were awarded. Here, the Workers could only

obtain statutory damages or actual damages. Wash. Rev. Code § 19.30.170(2).

Therefore, whether actual damages were awarded is irrelevant to the determination

of the prevailing party under the FLCA.

3.     The Workers waived their right to a jury trial regarding the discrimination

claims regarding “any claim for any liability . . . insofar as the [G]rower defendants

are concerned.” SER 1A-2. The Workers normally could rely on Global’s

assertion of its right to a jury trial. See DePinto v. Provident Sec. Life Ins. Co., 323

F.2d 826, 832 (9th Cir. 1963). However, the Workers (1) consented to a bench

trial on all issues prior to Global being relieved from summary judgment against it;

(2) failed to clarify their rights prior to trial; and (3) participated in a trial in which

the Growers did not participate in jury selection, opening, or closing arguments.

The Workers’ actions constitute waiver of their Seventh Amendment right to a jury

trial as to “any claim” of the Growers’ liability. See White v. McGinnis, 903 F.2d

699, 703 (9th Cir. 1990). The district court’s Findings of Fact and Conclusions of

Law on the Growers’ liability regarding the discrimination claims are affirmed.

       AFFIRMED in part, REVERSED in part, and REMANDED to the district

court for further proceedings consistent with this disposition.

Each party shall bear its own costs on appeal.


                                             6
                                                                                   FILED
Perez-Farias, et al. v. Global Horizons, Inc., et al., No. 10-35397                 AUG 17 2011

                                                                                MOLLY C. DWYER, CLERK
CLIFTON, Circuit Judge, concurring in part and dissenting in part:               U.S. COURT OF APPEALS



      I regret that I agree with only part of our decision in this case. I disagree

with the reasoning and conclusion reached in section 1 of the majority’s

memorandum disposition, agree with the result reached in section 2 but for a

different reason, and agree with section 3 of the majority memorandum. I would

affirm most of the judgment of the district court, and would reverse and remand

only as to the district court’s conclusion that Plaintiffs were not a prevailing party

for purposes of an award of attorney fees from the Grower defendants.

1. Damages under Wash. Rev. Code § 19.30.170(2)

      I disagree with the majority’s interpretation of the Washington statute at

issue regarding damages to be awarded for violations of the Washington Farm

Labor Contractors Act (FLCA). I would affirm the award entered by the district

court of approximately $235,000 in statutory damages. In contrast, the majority

memorandum concludes, at 5, that “the district court erred when it did not award

the Workers the full amount of mandatory statutory damages under the FLCA:

$1,998,500.”

      In a nutshell, I read the statute, as the district court did, to give the trial court

a degree of discretion in determining the appropriate amount of an award of

                                            1
damages, while the majority reads the statute as requiring the trial court to award a

fixed amount, specifically the larger of the amount of actual or statutory damages.

I do not dispute that the statute could have been written in that way, but it wasn’t.

The majority’s interpretation is not supported by the language of the statute, and it

is not a logical construction.

      I start, as does the majority, with the language of the statute:

      [I]f the court finds that the respondent has violated this chapter or any rule
      adopted under this chapter, it may award damages up to and including an
      amount equal to the amount of actual damages, or statutory damages of five
      hundred dollars per plaintiff per violation, whichever is greater, or other
      equitable relief.

Wash. Rev. Code § 19.30.170(2).

      The verb used in the statute is “may.” The majority’s interpretation treats

the word “may” as if it meant “must.” But “may” does not mean “must” or “shall.”

Washington courts have recognized that “[w]here a provision contains both the

word ‘shall’ and ‘may,’ it is presumed that the lawmaker intended to distinguish

between them, ‘shall’ being construed as mandatory and ‘may’ as permissive.”

Scannell v. City of Seattle, 648 P.2d 435, 438 (Wash. 1982). The FLCA uses the

word “shall” in several places, so it is presumed that the use of “may” in the

damages clause was meant to indicate that the award of damages is permissive.

That appears to be confirmed by the balance of the sentence, which lists various

                                           2
potential remedies, each linked by the conjunction “or.”

      The majority justifies its disregard of the word “may” by reasoning, at 3, that

“any other reading would render the clause ‘whichever is greater’ meaningless.”

But that’s simply not true, as I will illustrate below.

      Before getting to that illustration, however, it is helpful to recognize a

second misstep by the majority in interpreting the language of the statute – its

disregard of the words “up to and including.” The statute provides that the court

“may award damages up to and including . . . .” That phrase “up to and including”

indicates that the trial court is authorized to determine the appropriate award of

damages from a range.

      But the majority concludes that the trial court has no discretion and is

required to award a fixed sum, the greater of either the proven actual damages or

the calculated statutory damages. The concept of “up to and including” has simply

disappeared under the majority’s interpretation. That interpretation collides with

the requirement, which the majority memorandum explicitly recognizes, at 2-3, to

give effect to all language in the statute.

      If the words “may,” “or,” and “up to and including” are recognized, then the

logical interpretation of the statute, giving due regard to the words “whichever is

greater,” is clear. The statute gives the trial court discretion to determine the

                                              3
appropriate amount to award in damages from among a range of amounts, up to

and including the greater of (a) the amount of actual damages proven by plaintiff or

(b) statutory damages calculated at the rate of $500 per violation per plaintiff.

      To illustrate, take a hypothetical example varying somewhat from the actual

facts of this case in which it is assumed that Plaintiffs proved actual damages of

$1.5 million and that, as was the case here, statutory damages added up to

$1,998,500. The statute would thus provide that the court “may award damages up

to and including an amount equal to the amount of actual damages [$1.5 million],

or statutory damages . . . [$1,998,500], whichever is greater.” As described above,

the words “whichever is greater” define the range from which the district court

may select an appropriate damages award. In this example, because the calculated

statutory damages amount is greater than the amount of actual damages proven, the

range available to the district court to extends to a maximum of the “greater”

figure, i.e. up to $1,998,500. Returning to the actual facts of this case, in which no

actual damages were proven, the language of the statute authorizes the trial court to

select an appropriate figure from the same range, up to $1,998,500, because that is

still the greater figure. If, instead, actual damages of $3 million were proven, then

the trial court could select the appropriate award from a range up to $3 million.

      But no matter whether the larger figure is based on actual damages or

                                           4
statutory damages, nothing in the statute requires the trial court to award that

maximum figure, and only that maximum figure. Such a requirement can be

imposed only by ignoring the actual words of the statute, including “may,” “or,”

and “up to and including.”

         The majority’s interpretation is not only inconsistent with the language of

the statute, it imposes upon the statute an illogical reading, or, to use the language

of the Washington authority cited by the majority, at 2-3, a “construction[] that

yield[s] unlikely, strange or absurd consequences.” State v. Keller, 19 P.3d 1030,

1035-36 (Wash. 2001) (quoting State v. Contreras,880 P.2d 1000, 1003 (Wash.

1994).

         On the facts of this case, the trial court concluded that the appropriate

amount of an award to the Workers was $230,000. The trial court offered a

lengthy explanation of its reasoning process. That award is properly subject for

review, in my view, for abuse of discretion. The majority memorandum does not

quarrel with the trial court’s reasoning and does not hold the trial court’s

calculation to represent an abuse of discretion, but nonetheless directs an award of

nearly $2 million.

         It is not at all clear to me why we should conclude that the Washington

legislature intended to require such an award more than eight times the actual

                                             5
injury suffered by Plaintiffs. If it wanted to guarantee that statutory damages

would be awarded at the rate of $500 per violation per employee, even if actual

damages were substantially less, it would have been simple to have written the

statute that way. Most obviously, the word “may” would have been replaced with

“shall” and the trial court instructed that it “shall” award whichever figure is

greater. Or, a plaintiff could simply be given the usual right to elect among

available remedies. Or, the statute could have provided that the minimum award

would be the amount of statutory damages calculated at the specified rate. But

that’s not what the statute says.

      There is no good reason to conclude that the statute was intended to produce

the majority’s strained interpretation. Our court has already concluded as much in

a case involving a federal statute very similar, albeit not identical, to this one. In

Alvarez v. Longboy, 697 F.2d 1333 (9th Cir. 1983), we interpreted an analogous

federal statute in place at that time, the Farmer Labor Contractor Registration Act.

At the time, that statute provided that a court “may award damages up to and

including an amount equal to the amount of actual damages, or $500 for each

violation, or other equitable relief.” 7 U.S.C. § 2050a(b) (now repealed and

replaced by 29 U.S.C. § 1854). In Alvarez, we rejected the argument of plaintiffs

that the statute required the trial court to award the full amount of statutory

                                           6
damages:

             Plaintiffs' construction would require a rigidity in enforcement of the
      statute that is not necessary to accomplish Congress's general purpose to
      encourage effective enforcement, and might well create anomalous results
      Congress could not have intended, and which might impede effective
      enforcement of the Act. . . . A rigid reading of section 2050a(b) might
      compel the imposition of a penalty disproportionate to the offense. See De
      La Fuente v. Stokely-Van Camp, Inc., 514 F.Supp. 68, 80 & n. 5
      (C.D.Ill.1981). Courts faced with this consequence of a finding that the
      statute had been violated would inevitably interpret the substantive
      requirements strictly and impose a stringent standard of proof, thus making
      achievement of the statute's remedial purpose more difficult.

697 F.2d at 1339-40.

      I do not contend that we are bound by that precedential opinion to reach

exactly the same conclusion in this case, involving a different statute with

somewhat different wording. But the logic of Judge Browning’s opinion is

persuasive and applies directly to the Washington statute before us in this case. I

would reach the same conclusion in this case that our court reached in Alvarez, that

the trial court had the discretion to award damages in an amount less than the

maximum statutory award of $500 per violation per employee, and affirm the

award of damages entered by the district court.

2. Award of Attorneys’ Fees

      The majority remands the issue of attorneys’ fees under the Washington

statute to the district court for further proceedings. Obviously, based on the

                                          7
majority’s conclusion as to the amount of the award under the statute, discussed

above, a remand is necessary because the Plaintiffs’ victory is now substantially

greater than it was before and they must be deemed to be the “prevailing party.”

Even if my view on that subject prevailed and we affirmed the award of damages

entered by the district court, however, I would still vacate the district court’s order

on the issue of attorneys’ fees and remand that issue to the district court for further

consideration.

      The district court denied the Plaintiffs’ application for fees from the Grower

defendants in substantial part because the court considered the Plaintiffs' decision

not to seek or prove actual damages as something as to which the Grower

defendants prevailed. That was a strategic decision by Plaintiffs, not a victory for

the Growers. Seeking actual damages would not necessarily have made any

difference under my interpretation of the statute, because it was apparent that

actual damages would not have exceeded statutory damages. It obviously didn’t

matter under the majority’s interpretation of the statute, either. Failing to prove

actual damages was not something the Plaintiffs lost, so I don’t think it is

appropriate to treat it as something the Grower defendants won. Therefore, I

would remand to allow the court to revisit the subject.

      It may be appropriate for the district court to consider the degree of success,

                                           8
or lack thereof, in considering the amount of attorneys’ fees to be awarded. In

some circumstances it might even be appropriate to award no fees to a prevailing

party, based on very limited success and other factors. But Plaintiffs’ application

for fees should not have been denied on the premise that they did not “prevail”

against the Grower defendants. As they obtained an award of damages that was far

more than nominal and was not insubstantial, it appears to me that they did.

3. Right to Jury Trial on the Discrimination Claim

      I agree with the majority’s reasoning and conclusion as to the discrimination

claim against the Growers and join that part of the disposition.

4. Conclusion

      In sum, I would affirm the judgment of the district court, except as to its

denial of Plaintiffs’ application for attorneys’ fees against the Grower defendants,

which I would vacate and remand. I respectfully dissent from that part of the

majority disposition that reaches a different conclusion.




                                          9
