Ratha v. Rubicon Resources LLC - Trafficking Victims Protection Reauthorization Act Retroactivity

FOR PUBLICAT ION UNITED S TATES COURT OF APPEAL S FOR THE NI NTH CI RCUIT KEO RATHA; SEM KOSAL; SOPHEA BUN; YEM BAN; NOL NAKRY; PHAN S OPHEA; SOK SANG, Plaintiffs -Appellants, v. RUBICON RESOURCE S, LLC, Defendant-Appellee. No. 23-55299 D.C. No. 2:16- cv -04271- JFW - AS OPINION Appeal f rom the Unite d States District Cou rt for the Ce ntral D istrict of Califo rnia John F. Walter, District Judge, Presiding Argued and Submitted En Banc June 24, 2025 Seattl e, Washi ngton Filed February 20, 2026 Before: M ary H. Murgui a, Chief Judge, and Susan P. Graber, Ronald M. Gould, Consuelo M. Callahan, Milan D. Smith, Jr., Bridget S. Bade, Daniel A. Bress, Jennifer Sung, Salvador Mendoza, Jr., Anthony D. Johnstone and Ana de Alba, Circuit Judges.

2 R ATHA V. R UBICON R ESOURCES, LLC Opinion by Judge Graber; Dissent by Judge Callahan SUMMARY * Traffick ing Victim s Protectio n Reau thori zation Act Reversing the district court’s order denying plaintiffs’ motion under Federal Rule of Civil P rocedure 60(b) for relief from summary judgment in favor of defendant Rubicon Resources, LLC, and remanding for further proceedings in a civil action under 18 U.S.C. § 1595(a), the en banc court held that an amendment to t he statute, clarifying that defendants are civilly liable when they attempt to benefit, but do not succeed in benefitt ing, from human trafficking, has retroactive effect. Plaintiffs w ere villa gers from rur al Cambodia who allegedly were forced to work at seafood factories in Thailand. They alleged that Rubicon marketed in the United States seafood products from those factorie s, thereby participating in a venture that benefited from human trafficking. The district court entered summar y judgment in favor of Rubicon, holding that Rubicon only attempted to benefit from plaintiffs’ forced labor. In “ Rat ha I,” a t hree - judge panel of this court agr eed, holding that the civil reme dy provision of § 15 95(a) did not encompass “attempt” liability. Congress subsequently passed the Abolish Trafficking Reauthorization Act of 2022 (“ATRA”), a bill * This s ummary constitut es no part of the o pinion o f the c ourt. It has been pre pared by c ourt staff for the conveni ence of the r eade r.

R ATHA V. R UBICON R ESOURCES, LLC 3 clarifying that defendants are civilly liable when they attempt to benefit, but do not succeed in benefitt ing, from human trafficking. Plaintiffs moved for relief under Rule 60(b)(6). The district court denied the motion, holding that Congress did not in tend f or attemp t liability to apply retroactiv ely. Applying the three - step framewo rk of Landgraf v. USI Film Products, 511 U.S. 244 (1994), the en banc court held that Congress intended its clarifying amendmen t to have retroa ctive ef fect. Under Landgraf, the court first reads th e statutory text to see whether Congress explicitly included a retroa ctive ef fective d at e. If not, at step two, the court determines whether application of the statute woul d have retroa ctive eff ect. If so, the court applies a pr esumption against r etroactivity. At step three, the cou rt decid es whether the presumption can be overcome by consi dering all indicia of intent to determine whether Congress made its intention cle ar that the sta tute applies retr oactive ly. If so, the statute a pplies re troactively. To the e xtent that this co urt has held in other cases that clarifying amendment s to civil statutes f all outside th e Landgraf framewo rk, t he en b anc court overruled those cases as inconsistent with Landgraf. At step one, the en banc court ob served that t he ATRA contain ed no expl icit r etroact ive eff ective dat e. At step two, the en banc cour t determined that the ATRA would have retroa ctive eff ect and that t he presum ption against retroactiv ity applied. At step three, the panel concluded that Congress nevertheless clearly mea nt for the ATRA to apply retroa ctivel y. The panel concluded that four factors, consid ered to gether, cle arly estab lished the amendm ent’s retroactiv ity: (a) Congress expre ssly stated that its enactment was a tec hnical an d “cla rifyi ng” up date; (b) § 1595(a) was ambiguous before the am endment;

4 R ATHA V. R UBICON R ESOURCES, LLC (c) Ratha I created a circuit split concerning the interpretation of § 1595(a); and (d) Congress acted swiftly, and with imme diate effect, fo llowing the cour t’s decision in Ratha I. The en ban c cou rt held t hat § 1595’s retroactivity fatally undermined one of the three grounds on which the district court had premised its grant of summary judgment. The en banc court concluded that the two remaining grounds were not suffic ient to justif y denial of plaintiffs’ Rule 60(b) motion. These grounds were: (1) plaintiffs did not demonstrate that Rubicon knowingly participated in a human trafficking venture; and (2) plaintiffs did not demonstrate that Rubicon knew, or should have known, that hum an trafficking was occurring at the factory. The en ban c court he ld that the district co urt erred as a matter of law on the part icipati on elem ent b ecause on e can part ici pate in a venture without operating or managing it, and t he district court did not view all facts and inferences in fa vor of plaintiffs. The dist rict cou rt also erred as a m atter of law on the knowledge element, and a reasonable jury could have found that Rubicon knew or should have known about the alleged human trafficking. Weighing the relevant f actors for relief under Rule 60(b)(6), the en banc court held that plaintiffs were entitle d to relief fro m the distric t court’s final order. Judge Callahan dissented, joined by Judge M. Smith except as to Part I.A., by Judge Bade in full, by Judge Bress as to Part I only, and by Judge Johnstone in full. In Part I, Judge Callahan wrote that she agreed with the majority that Landgraf governs the retroactivity analysis, that prior cases that created an exception for clarifying amendment s must be overruled, and that ATRA would have retroactive effect and thus the presumption against retroa ctivity applied. Judge

R ATHA V. R UBICON R ESOURCES, LLC 5 Callah an’s ag reement ended there. I n Part I.A., she wrote that the four factors cited by the majority did not demonstrate clear co ngressi onal in tent that t he ATRA i s retro active. In Part I.B., Judge Callahan wrote that und er a faithful application of Landgraf, the en banc court should decline to give th e ATR A retro activ e effe ct becau se th ere i s no cl ear indication that Congress intended it to be r etroactive. In Pa rt II, Judge Callahan wrote t hat the majority reached beyond the bounds of this appeal by ad dre ssing all of the district court’s reasons for granting summary judgment. COUNSEL Agnieszka M. Fryszman (argued), Ni cholas J. Jacq ues, Emil y Ray, and Madelei ne Gates, C ohen Mi lstei n Sell ers & Toll PLLC, Washington, D.C.; Paul L. Hoffman and John C. Washington, Schonbrun Seplow Harris Hoffman & Zeldes LLP, Her mosa Beach, Cal iforni a; Cath erine Sweet ser, UCLA Law Clinics, Los Angeles, California; Dan Stormer, Hadsell Storm er & R enick LLP, P asad ena, C aliforni a; for Plaintiffs -A ppellants. Barbara E. Taylor (ar gued), Bryan D. Daly, Melissa K. Eaves, and Charles L. Kreindler, Sheppard Mullin Richter & Hampton LLP, Los Angeles, California; for Defenda nt - Appell ee. Aaron M. Halegua, Aaron Halegua PLLC, New York, New York; Tyler R. Giannini, Human Rights Entrepreneurs Clinic, Harvard Law School, Cambridge, Ma ssachuse tts; Margar et Lee, H uman Traffick ing Leg al Cen ter, Washington D.C.; for Amici Curiae Members of Congres s, Represen tative N adler, et al..

6 R ATHA V. R UBICON R ESOURCES, LLC John Burton, John Burton Law, Pasadena, California; Margar et Lee, H uman Traffick ing Leg al Cen ter, Washington D.C.; for Amicus Curiae Human Tr afficking Legal Cen ter. John Burton, John Burton Law, Pasadena, California; Allison Gill and Johanna Lee, Global Labor Justice - International Labor Rights Forum, Washington, D.C.; Avery Kelly and Alicia Brudney, Corporate Accountability Lab, Chicago, I llinois; for Amici Cu riae H um an and Worke rs' Rights Organizations and United States Shrimp Producers. Anne M. Voigts, King & Spalding LLP, Palo Alto, California; Julia Romano, King & Spalding LLP, Los Angeles, California; Zoe M. Beiner, King & Spalding LLP, Washington, D.C.; for Amicus Curiae Professor David Abramow itz. Joshua M. Wesneski and S ydney Hargrove, Weil Gotshal & Manges LLP, Washington, D.C.; Cory L. Andrews, Washington Legal Foundation, Washington, D.C.; for Amicus Curiae Washington Legal Foundation. Andrew J. Clopton, Jones Day, Detroit, Michigan; Julia E. Fine, Jones Day, Washington, D.C.; for Amicus Curiae International Franchise Association.

R ATHA V. R UBICON R ESOURCES, LLC 7 OPINION GRABER, Circuit Judge: Plaintif fs are villagers fr om rural Cambod ia who allegedly were forced to work at seafood factories in Thailand. They brough t a civil action under 18 U.S.C. § 1595(a) against four defendants, including Defe ndant Rubicon Resources, LLC (“Rubicon”). Plaintiff s allege that Rubicon marketed in the United States seafood products from those factories, thereby participating in a venture that benefited from human traf ficking. The district court entered summary judgment in favor of Rubicon, holding that Rubicon o nly atte mpted to bene fit from Plaintif fs’ f orced labor. Critically, in th e court’ s vie w, the civil remed y provision of § 1595(a) did not encompass “attempt” liability. A t h r e e - judge panel of this court agreed, Ratha v. Phatt hana Seafood Co. (Ratha I), 35 F.4th 1 159 (9th Cir. 2022), crea ting a rift with tw o other c ircuits’ inte rpretation of the statute. Congress disagreed with our interpretation of the statute. Just a few months after this court issued Ratha I, and mere days afte r the S upreme C ourt d enied certio rari, Congress passed a bill clarifying that defendants ar e civilly liable whe n they attemp t to benefit, but do not succeed in benefit ting, from human traf ficking. Plaintiffs quickly moved, unde r Federal Rule of Civi l Procedure 60(b), for relief from the summary judgment entered in Rubicon’ s favor. The district court denied the motion, holding that Congress did not intend fo r attempt liability to apply re troac tively. W e hold that Congre ss intend ed its clarifyi ng amendm ent to have retroa ctive effect and that the district court lega lly erred in its a lternative

8 R ATHA V. R UBICON R ESOURCES, LLC grounds for denying Rule 60 (b) rel ief. A ccordingly, we reverse and remand for further proceedings. F ACTUAL AND PROCEDUR AL HISTOR Y Because t he dist rict cour t incorp orated in to its denial of the Rule 60(b) motion its earlier decision on a s ummary judgment, we set out the facts in the light most favorable to Plaintif fs. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“The evidence of the non - movant i s to be believed, and all justifiable inferences are to be drawn in [their] favor.”); see als o Rat ha I, 35 F. 4th at 1 180 (applying this standard). Phatthana Seafood Co., Ltd. (“Phatthana”), a Tha i corporation, owned a seafood proce ssing factory in southern Thailand. Phatthana’ s owner founded Rubicon — a Unit ed States company — so that Phatthana and other seafood producers could sell their goods more easily in the United States. Rubicon neither owned factories nor hired Phatthana’ s employees, but Rubicon’ s employees “coordinated sales and marke ting, visited and conducted pre - audits of Phatthana’ s factories, and arranged for import and shipping of Phatthana’ s product.” Ratha I, 35 F.4th at 1 166. And in its own marketing materia ls, Rubicon claimed “to control every aspect of production.” Plaintiffs Ke o Ratha, Sem Kosal, Sophea B u n, Y em Ban, Nol Nakry, Phan S ophea, and Sok Sang are villagers from rural Cambodia who were recruited from their villages to work at seafood factories, including Phatthana ’s. Id. at 1 165–66. Though Plainti ffs were promised competitive pay and free acco mmodat ion s, th ey inst ead “became victim s of peonage, forced labor, and involuntary servitude.” Id. at 1 165. Specifically, from 2010 through late 2012, “Plaintiffs were paid less than promised, char ged for accommoda tions,

R ATHA V. R UBICON R ESOURCES, LLC 9 char g ed for other unexpected e xpenses, . . . and subjected to harsh conditions.” Id. W orkers who complained faced threats and retali ation; some wer e forced t o crawl on thei r hands and knees, without clothing, until bloody. Plaintiff s’ passpo rts wer e confi scat ed when th ey ar rived at the factories. Plaintif fs could not leave because poli ce office rs would ar rest them if they le ft the facto ries without the ir passports, “which [Plaintiff s] were told would not be returned until ‘recruitment fee[s]’ and other amo unts were paid.” Id. S ome worke rs t ried to leave any way and wer e arrested. The conditions at Phatth ana’ s fact ory did not go unnoticed. In October 201 1, Rubi con tried to sell fourteen containers of shrimp to W almart, which rejected the shipment because it had concerns about the f actory’ s working conditions. Id. at 1 166. In January 2012, Plaintiff Ratha told the Phnom Penh Post that he was subject to force d labor and that hundreds of Cambodians a t Phatthana ’s f actory “ wanted to leave but were unable t o get their passports back.” It is undisput ed that in February 2012, Rubicon was aware of the Phnom Penh Post ’s article reporting Ratha’ s al legat ions of human trafficking and describing the factory’ s deplorable working conditions. See id. at 1 177 (“Rubicon was undisputedly aware of Ratha’ s whistleblower report. ”). Mor e articles came ou t about the workers’ allegat ions o f forced lab or at t he fact ories, and Rubicon’ s managers circulated them to one another. Rubicon brie fly paused its attempts to se ll shrimp t o W almart but, beginning in July 2012, it resumed those ef forts. Ultimately, Rubicon fa iled to sell Phatthana’ s shrimp in the United States during the time period relevant to this case. Id. at 1 166.

10 R ATHA V. R UBICON R ESOURCES, LLC In June 2016, Plaintif fs sued Rubicon under the civil remedy provision of the W illiam W ilberforce T raf ficking V ictim s Protection Reauthorization Act of 2008 (“TVPRA”), 18 U.S.C. § 1595(a) (ef fe ctive December 23, 2008, through January 4, 2023). 1 Plaintif fs alleged that they were victims of peonage, forced labor, involuntary servitude, and human traf ficking in violation of 18 U.S.C. §§ 1581, 1584, 1589, 1590, 1592, and 1593A. Plainti f fs all eged that Rubicon “knowingly benefited from participation in a venture which [Rubicon] knew or should h ave known was engaged in peonage, forced labor, involuntary servitude, unlawful conduct with respect to documents, and human traf ficking. ” They further alleged that Rubicon “pr ovided a market and worked to expand that market,” wh en it knew that Phatthana was engaged in human traf fi cking and “inten d[ed] to benefit from it.” Rubicon moved for summary judgment, which t he district court entered in December 2017. The district court ruled t hat “(1) Plaintif fs failed to demonstr ate that Rubicon knowingly participated in a human traf ficking venture; (2) Plaintif fs failed to demonstrate th at Rubicon knew or should have known that human traf ficking existed at Phatthana’ s Songkhla factory; and (3) there was no eviden ce that Rubicon benefitted from Phatthana’ s alleged human trafficking. ” Ratha v. Phatthana Seafood Co., Ltd., No. CV 16-4271- JFW (ASx), 2023 WL 2762044, at *1 (C.D. Cal. Mar. 3, 2023). 1 Plain tiffs also na med Phatthana; S.S. Fr ozen Foo d Co., Limited; a nd Wale s and Co. Univers e Limited as defendants. The dis trict court entered s ummary judgment in favor of thos e three c ompani es, but thos e companies and their associated judgments are not before us.

R ATHA V. R UBICON R ESOURCES, LLC 11 Plaintiffs a ppealed, and a panel of our c ourt af firm ed the district court’ s judgment. Ratha I, 35 F.4th at 1 181. W e held that (1) Plaintif fs did not show that Rubicon r eceived a benefit and (2) § 1595(a) did not extend civil liabilit y to attempts to be nefit. Id. at 1 175– 76. W e filed that decision on February 25, 2022, and amended that decision and denied rehearing en banc on May 31, 2022; the Sup reme Court denied Plaintif fs’ petition for a writ of ce rtiorari on December 5, 2022. 143 S. Ct. 491 (2022). Fifteen days later, on December 20, 2022, Senators Martin Heinrich, John Cornyn, and Amy Klobuchar proposed an amendment to a pending bill entitled the Abolish T raf ficking Reau thorization Act of 2022 (“A TRA”). The proposed amendment added wording to 18 U. S. C. § 1595(a), removing any doubt that victims may bring private actions against partie s for attemptin g to benefit from human traf ficking. The Senate pa ssed the amended bill the same day, and the President signed it into law on January 5, 2023. Pub. L. No. 1 17-347, 136 Stat. 6199 (2023). Plaintif fs then filed a motion under Federal Rule of Civil Procedure 60(b)(6), asking the district court to va cate its summary judgment order as to Rubicon. Plaintif fs argued that the A TRA clarified that § 1595(a) included attempt liability and, because t he A TRA served only as a clarif ication, it applie d retroactiv ely. The distr ict court disagreed and denied Plaintif fs’ motion, holding tha t (1) the A TRA was not retroactive; and (2) eve n if it wer e, the distr ict court premised its summary judgment as to Rubicon on two additional grounds, which were independent of the changes

12 R ATHA V. R UBICON R ESOURCES, LLC made by the A TRA and which the c ourt incorporated by referenc e. 2 Plaintif f s timely a ppeal. A majority of a three -judge panel af firmed the district court’ s decision. Ratha v. Rubicon Res., LLC, 1 1 1 F.4th 946, 969 (9th Cir. 2024). Judge G raber dissented, stating that she would have he ld that the A TRA was retro activ e and wo uld have rev ersed and r emanded fo r further proceedings. Id. at 97 5–7 6 (Graber, J., dissenting). A major ity of active judges vot ed to rehear t he case en banc, Ratha v. Rubi con Res., LLC, 129 F.4th 1212 (9th C ir. 2025) (order), and the en banc court heard or al argume nt on June 24, 2025. ST ANDARDS OF REVIEW W e r eview for abuse of discretion the denial of a Rule 60(b) motion. Phelps v. Alameida, 569 F.3d 1 120, 1 131 (9th Cir. 2009). A district court abuses its discretion if its denial rests on “an err oneous view of the law.” Id. (citation and interna l quotation ma rks omitted). W e review de novo questions of law. Bynoe v. B aca, 966 F.3d 972, 97 9 (9th Cir. 2020). DISCUSS ION A. The A TRA Appl ies R etro actively. 1. Landgraf Governs the Retroactivity of All Civil Statutes, Including Clarifying Amendments. Landgraf v. USI Film Prod ucts, 51 1 U.S. 244 (1994), controls the ana lysis of re troactivity fo r federa l civil 2 Those grounds are that (1) Pla in tiffs failed to demo nstrate that Rubic on knowingly participated i n a human traffi cking venture and (2) Plaintiffs failed t o demonstrate that R ubicon knew, or shoul d have know n, tha t human tra fficking was occurr ing at P hatthana ’s fact ory.

R ATHA V. R UBICON R ESOURCES, LLC 13 legislation. Landgraf provides a thre e - step framework for deciding whether an enactment, such as an am endm ent to a civil statute, appl ies retr oactivel y. W e first read the statutory text to see whether Congress e xplicitly included a retr oactive effective date. Id. at 280. If so, we honor that effective date. Id. If not, we deter mine, at step two, whether appl ication of the statute “would have retro active effect.” Id. I f the statute would not have retroactive eff ect — if, for ex ample, it affects only “the propriety of prospective relief, ” or it chan ges a procedural rule — then it ordinar ily applies r etroactively. Id. at 273 – 75. But “[i]f the statute would operate retroactively,” courts apply a presumpt ion against statutory retroactivity. Id. at 280. That presumption is driven by the conc ern that it may be unfair to “impose[] new burdens on pe rsons after the fact.” Id. at 270. But presumptions can be overcom e. Accordingly, the final st ep of the analysis requires us to consider all indicia of intent to determine whe ther Congress has made its intention cl ear that the statu te applie s retroactiv ely. Id. at 280; see also Rivers v. Roadway Express, Inc., 51 1 U.S. 298, 304 –09 (1994) (elaborating, in Landgraf ’ s comp anion case, on the analysis of congressional intent). If so, the statute a pplies retr oactively. Our own cases generally have compor ted with Landgraf ’ s analysis. S ee, e.g., B ahr v. Regan, 6 F.4th 1059 (9th Cir. 2021). But we paus e to cla rify tw o aspe cts o f the retroactiv ity analysis. First, we have at t imes held t hat “clari fying” amendmen ts ar e analy zed differently. W e have h eld (a) that such amen dmen ts pres ent an exception to Landgr af ’s requirements, see, e.g., Beaver v. T arsadi a Hot els, 816 F.3d 1 170, 1 186 (9th C ir. 2016) (“However, no Landgraf analysis is requi red if an amend ment m erely serv es to clarify rat her than change the substance of existing law.”); an d (b) that

14 R ATHA V. R UBICON R ESOURCES, LLC there is no presumption against retroactivity for “clarifying” amendments, see, e.g., ABK C O Music, In c. v. LaV ere, 217 F.3d 684, 689 (9th Cir. 2000) (“[C]larifying legislation is not subject to any presumption against retroactivity. . ..”). T o the exten t that we h ave hel d in ot her cases that clarify ing amendmen ts to c ivil statutes fall outside the Landgraf framework, we now overrule those cases as inconsistent with Landgraf. Nothing in L andgraf, or in any other Supreme Court precedent, suggests that Landg raf ’ s gen eral framework applies only in some situations. W e must analyze all ques tion s concer nin g the retro activ e effect of amendme nts to civil statutes u nder Landgraf ’s t hree - step framework. But w e overru le thos e cas es only insofar as they bypass a consideration of congressional intent or es tablish a contrary presumption regarding retroactivity. T o t he extent that t hose cases consider various indicators of congressional intent, they remain valid. 3 Second, as described above, Landgraf clearl y contemp lates a sequence of three questions. 511 U.S. at 280; see also Fernandez- Vargas v. Gon zales, 548 U.S. 30, 37 –38, 40 (2006) (describing the inquiry as containing three steps). Our cases generally adhere to that understanding. S ee, e.g., TwoRivers v. Lewis, 174 F.3d 987, 993 (9th Cir. 1999) (describ ing a “th ree stag e analy sis”). B ut occas ion ally we have described the inquiry as containing only two steps, with 3 The dissent m istakenly insists that we must toss out the baby with t he bathwater. See Dissen t at 39 n.2. A lt hough we hold that a “clar ifying ” amendment is n ot presu mptively r etroactiv e, the “clarifying” nature of an amendment remains a n indicator of Co ngress’ s inten t for legislation to operate retroactively. So w e ma y still look to our now - over ruled cases for guidance as to whe ther an amendment is “clarifying.”

R ATHA V. R UBICON R ESOURCES, LLC 15 the second step encompassing both of the final tw o stages of the Landgraf analysis. See, e.g., Ditullio v. Boehm, 662 F.3d 1091, 1099 (9th Cir. 2011) (desc ribing a “two - step analysi s”); Garci a - Ramir ez v. Go nzales, 423 F.3d 935, 939 (9th Cir. 2005) (pe r curiam) (describing a “two - st ep approach ”). For consistency with the Supreme Court’s decisions, we adhere to the Court’s description of three distinct inquir ies. W e turn, then, to applying Landgraf ’ s framework to the AT R A. 2. Under the Landgraf F ramework, the A TRA Applies Retroact ively. Utilizing that frame wor k here, we concl ude t hat t he A TRA ’ s changes to 18 U.S.C. § 1595(a) apply retro active ly. The legisla tion contained no explic it retroa ctive ef fective date, so we cannot stop at step one of the Landgraf framework. At step two, we determine “ whether the new s tatu te would have retroactive effec t, i.e., whether it would im pair right s a party p ossess ed when he act ed, i ncrease a party ’ s liability for past conduct, or impose ne w duties with respec t to transactions already completed.” Landgraf, 511 U.S. at 280. T he TVPRA, a s interpreted by Ratha I, did not pr ovide civil liability for an attempt to benefit from forced labor, and the ATRA unambiguously does so. T he ATRA th ereby increas es Rubicon’s liability for its p ast conduct, so the

16 R ATHA V. R UBICON R ESOURCES, LLC ATRA would hav e retroacti ve effe ct. 4 Accordingly, the presumption against r etroactivity applies. W e there fore ask, at the final step, whether Congress neverthel ess clea rly m eant for the AT R A to apply retroactiv ely. The answer here i s “yes.” F our factors in this case, considered together, clearly establ ish t he amen dment’ s retroactiv ity: (a) Congre ss expressly stated that its enactment was a tec hnical an d “cla rifyi ng” up date; (b) § 1595(a) was ambiguous; (c) Ratha I created a circui t split concerning the interpretation of § 1595(a); and (d) Congress acted swiftly, and with imme diate ef f ect, following our decision in Rath a I. W e add ress tho se fa ctors in turn. 5 4 Here, our analysis of t h e statute’s retroactive effect is straightforward. But it is not alway s so. As Landgraf expl aine d: The conclus ion that a part icular rule operat es “retroactively” comes at the end of a process of judgment co ncerning the na ture a nd extent of the change in the law and t he degre e of c onnection between the operation of the new rule and a relev ant past event. Any test of retr oactivity will leav e room for disagr eeme nt in ha rd cases, a nd is unl ikely t o class ify the enormous variet y of legal changes wit h perfec t philosophic al clarity. However, r etroactivity is a matte r on whi ch j udges tend to have “so und instin cts,” and familiar considerations of fair notice, reasonable reliance, and settled expectations of fer sound gui dance. 51 1 U.S. at 270 (alterations adopted) (internal c itation om itted); see also Bahr, 6 F.4th at 1071 – 74 (concludin g that the administrativ e rule at issue “did not have an impermis sibly retroact ive effec t”). 5 W e emphasize, though, that t here is no requir ed s et of fact ors that must be conside red whe n determining c ongressional inten t. Differe nt statutes may present different indicia of retroactiv e intent.

R ATHA V. R UBICON R ESOURCES, LLC 17 a. Congress Labeled the Amendment “T e chnical and Clarifying.” The full te xt of the re levant amend ment state s: SEC. 102. TECHNIC AL AND CLARIFYING UP DA TE TO CIVIL REMEDY. Section 1595(a) of title 18, United States Code, is amended by inser ting “or attempts or conspires to benefit,” after “whoever knowingly benefits.” Pub. L. No. 1 17-347, 136 Stat. 6199, 6200 (2023). The section’ s title — “TECHNICAL AND CLARIFYING UP DA TE T O CIVIL REMEDY” —strongly suggests that Congress intended for it to apply retroacti ve ly. Although “ clari fyi ng ” amendments are not exempt ed from the Landgraf analysis, an amen dment ’s “cl arifyi ng” nat ure is evidence that Congress intended the amendment to be retroactiv e. See Rivers, 51 1 U.S. at 3 11 (stating that a n enactment ’ s “restorative purpose” can be evid ence tha t Congress intended t he en actment t o apply retroactively). 6 6 T he dissent criticizes o ur citation of Riv ers, D issent at 41 – 43, primarily because Ri vers concl uded that Congres s did not clearl y express an i ntent for the statute in question to apply retr oactively. But of course, the Court’s conclusion about c o ngress ional i ntent conc ernin g the Ci vil Rights Act of 1991 doe s not control our conclus ion about c ongressi onal intent c oncerni ng th e ATRA. More import antl y, the dissent ignores t he portions of River s in which the Court consi dered a 1990 civil rights bill’s title, which stated the bill’s restora tive p urpose, as e vid ence of c ongressi onal intent t o act retroactively. See 511 U. S. at 307 – 08 (contras ting the 1990 bil l’s us e of the word “rest oring” wi th the C ivil

18 R ATHA V. R UBICON R ESOURCES, LLC Here, secti on 102’ s title suggests th at, as to civil liability f or attempts to knowingly benefit from fo rced labor under § 1589, Congress intended for the A TRA to “confirm wha t the law. . . al ways me ant. ” Beverly Cm t y. Hosp. Ass’n v. Belsh e, 132 F.3d 1259, 1265 (9th Cir. 1997); see also Almend arez - T o rres v. U nit ed Stat es, 523 U.S. 224, 234 (1998) (“[T]he title of a statute and the heading of a section are tools available for the resolution of a doubt about the meaning of a statute.” (citations and internal quotation marks omitted)). W e must gi ve great we ight to the clarifying nature of Congress’ s amendment. The Supreme Court has s tated that rule in cases d ecided bo th befor e and after L and graf. For example, i n Red Lion Broad casting Co. v. FCC, 395 U.S. 367 (1969), the Court stated: “Subsequent legislation declar ing the intent of an earlier statute is entitled to grea t weight in statutory construction.” Id. at 380 –81; s ee also id. at 381 n.8 (cit ing earli er c ases). The Cou rt rep eated t he same principle two years after deciding Landg raf. Loving v. United State s, 517 U.S. 748, 770 (1996). In Bel she, w e cited those cases and observed: “ It h as be en est ablis hed l aw since nearly the beginning of the re public. . . that congressional legislation th at thus expre sses the inte nt of an earlier statute Rights Act of 1991’s use of the w ord “expa nding”); see also id. at 311 (“ A restorative purpose may be relevant to whether Co n gress specifically intended a new statut e to gover n past conduct.. ..”). Finally, the dis sent errs by arguin g that factors identified in Riv ers as evidence of retroactive intent, but held to be insufficie nt in that instance to determ ine C ongress’s intent, should not be conside red at all. Put more s imply, the dis sent posits that if a factor i s not disp ositive, we m ust ignor e it. Riv ers suggest s no such rule. To the contrary, Rivers mad e clear that Congres s’s re storat ive intent wa s r elevant even thoug h Co ngre ss’s “ use of the word ‘ rest o re’” did not “ necessarily bespeak [] an inten t to restor e retroactively.” Id. at 307 n.7.

R ATHA V. R UBICON R ESOURCES, LLC 19 must be accorded great wei ght.” 132 F.3d at 1265 (c itations omitted); see also id. at 1266 (“W e therefore honor Congres s’[s] ‘ clarifi catio n’ lab el. . ..”). Other circuits, too, give weight to Congress’ s clarif ication label. See, e.g., Brown v. Thompson, 374 F.3d 253, 259 (4th Cir. 2004) (giving ef fe ct to Congress’ s label of a n amendment as “technic al and cl arify ing ”); Pi am b a Cort es v. Am. Air lines, Inc., 177 F.3d 1272, 1283–84 (1 1th Cir. 1999) (giving ef fect to a legisla tive declara tion of an intent to clarif y in the face of a prior ambiguity). Related ly, we must assume that Congres s knew t hat we long had c onsidere d title s with a “ clarif ying” label to be a strong indicator of retroactiv e intent. See United States v. LeCoe, 936 F.2d 398, 403 (9th Cir. 1991) (“Cong ress is, of course, presumed to know existing law pertinent to any new legislation it enacts.”). By using the te rm “clarifying” in the title of its amendment, Congress spoke to us in our own language, directing us to apply the ame ndment retroactively. It also is worth noting that Congress consciously chose to label the 2023 amendme nt “clarifying” when it had labeled t he pr evious ch anges “enhan cement s.” C ompare Pub. L. No. 1 17 - 347, 136 Stat. 6199, 6200 (2023), with Pub. L. 108 - 193, 1 17 Stat. 2875, 2877 (2003), and P ub. L. 1 10 - 457, 122 Stat. 5044, 5067 (2008). S ee R ivers, 5 1 1 U.S. at 307– 08 (considering, as evidence o f Congress’ s retroactive intent, the d ifference betw een Congress’ s stated purpose of “expanding” a law ’ s scope and a prior bill’ s p urpose of “restoring” such scope). “Enhan cement ” conn otes a substantive improvement. See Enhance, M erri am – W ebst er, https://www.merria m -webster.com/dictionary/ enhancement (last visite d Nov. 4, 2025) (“ [T]o increase or improve in value, quality, desira bility, or attractiv eness [.] ”). By contrast, the “clari fying ” label has a settl ed m eanin g that

20 R ATHA V. R UBICON R ESOURCES, LLC does not suggest a substantive cha nge. See C larif ying, Merriam – W ebster, https://ww w.merriam - webster.com/dictiona ry/clarif ying (last vis ited Nov. 4, 2025) (“ [M] aking something less confusing or easier to understand[.] ”). b. The Statute W as Ambiguous Before the Amendment. The A TRA was not simply label ed “clarifying”; it actually clarified an ambiguous statute. Before the A TRA, the TVPRA was subject to more than one r easonable interpretation. Ratha I m emoriali zes one su ch in terpretat ion. 35 F.4th at 1 176 (holding that the TVPRA does not create civil attemp t liability); see also Dissent at 44– 46 (setting forth a s imilar interpr etation of the T VPRA). But we find a different readi ng — one in which the T VPRA did authorize such liability — to be at least as reason able. Let ting R atha I speak for itself, we now explain a contrary reading of the TVPRA. W e begin with the text of the statute, which we must read in context and with an understanding of the la w’ s purpose. Asarco LLC v. Atl. Richfield Co., 866 F.3d 1 108, 11 18 –21 (9th Cir. 2017). The V icti ms of Trafficking and V iolence Protecti on Act of 2000 (“VTVP A ”), Pub. L. 106 - 386, 1 14 Stat. 1464 (2000), made it illegal for a person to knowingly provide or obtain forced labor. Id. at § 1 12(a)(2), 1 14 St at. 1464, 1486– 87. T he VTVP A also included § 1594 (General provisions), id. at § 1 12(a)(2), 1 14 Stat. 1464, 1489, which functions like a “definitions” section. For example, as relevant here, § 1594(a) provided that “[w]hoe ver attempts to violate sectio n. . . 1589 shall be punishable in the sam e manner as a completed violation of that section.” Id. (em phas es added). The VTV P A thus defined an attempt to violate § 1589 as a

R ATHA V. R UBICON R ESOURCES, LLC 21 violation of § 1589— without exte nding atte mpt liability t o every cri me lis ted in the chapt er. Three years later, Congress pass ed the Traf ficking V ictim s Protection Reauthorization Act of 2003. Pub. L. 108- 193, 1 17 Stat. 2875 (2003). That act introduced § 1595— “Civil reme dy” — allowing “[a]n individual who is a victim of a violation of sec tion 1589, 1590, or 1591. . . [to] bring a civil action against t he perpetrator.” Id. at § 4(a)(4)(A), 1 17 S tat. 2875, 2878. Finally, in 2008, C ongress passed the TVPRA. Pub. L. 11 0 - 457, 122 Stat. 5044 (2008). The T VPRA expanded civil liability to perpe trators o f any violation under the chapter, not just perp etrators of the crimes listed in §§ 1589, 1590, and 1591: An individual who is a vi ctim of a violation of this chapter ma y bring a civil a ction against the perpetrator (or whoe ver knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has e ngaged in an act in violation of t hi s chapter) in an appropr iate district c ourt of the U nited State s and may recover damages and reasonable attorn eys fees. 18 U.S.C. § 1595 (2008) (emphases added); se e Pub. L. 1 10 - 457, § 221, 122 Stat. 5044, 5067. Considering § § 1589, 1594, and 1595 together a nd in context, three things become clear.

22 R ATHA V. R UBICON R ESOURCES, LLC i. An Attempt T o Knowingly Benefit from Forced Labor W as a V iolation of § 1589. First, an attempt to viola te § 1589 was a punishable violation of § 1589. As the Supreme Court explained in Carcieri v. Sal azar, 555 U.S. 379, 393 – 95 (2009), a d efined term re tains its mea ning throug hout a par ticular statute. See Cochise Consultancy, Inc. v. United States ex rel. Hunt, 587 U.S. 262, 268 (2019) (“ W e. . . avoid interpretations that would ‘attribute diffe rent meanings to the same phrase.’” (citation omitted)); R atzlaf v. Unit ed Stat es, 510 U.S. 135, 143 (1994) (“A term appearing in several places in a statutory te xt is gene rally re ad the same way each time it appears. ”). Through § 1594 (General provisions), Congress added “attempt” into the definition of the conduct that violated § 1589 (Forced labor). Pub. L. 1 10 -457, § 222(b)(3), 122 Stat. 5044, 5068 (2008). In other words, reading the two sections together, an attempt to knowingly benefit from forced labo r is and was a violati on of the TVPRA. ii. C ongress Designed Co- ex tensive Cr iminal and Civil Liability. Second, Congress made clear in the 2008 versi on of § 1595(a) that any violation of the human - trafficking ch apter would give rise to civil liability. The 2003 version of § 1595 (Civil reme dy) had limited civil lia bility to only three of several substantive crimes. Pub. L. 108 - 193, § 4(a) (4) (A), 1 17 Stat. 2875, 2878. As of 2008, though, the civil remedy applied (if the o ther requi rements were met) to every “act in violation of [the human - traf fi cking] chapter.” Pub. L. 1 10 - 457, § 221, 122 Stat. 5044, 5067. That is, Congress int ended every criminal act to have a civil - remedy counterpart. The intended parallelism is further demonstrated by § 1595(b),

R ATHA V. R UBICON R ESOURCES, LLC 23 which provides that courts must stay any civil action during the pendency of a criminal action involving the same conduct and the same victim. Pub. L. 108 - 193, § 4(a)(4) (A), 1 17 Stat. 2875, 2878. Given the purpose of the statute, we can discern no reason wh y any criminal violation, including an attempt, would fail to give rise to corresponding civil liability. iii. Con gress’ s Draft ing Ch oice W as a Matt er of Efficiency. Third, Congress made a simple drafting choice, apparently for the sake of clarity and efficie ncy. Congress chose to define, in § 1594 (General provisions), cer tain violations to include attempts. Pub. L. 106 - 386, § 1 12(a) (2), 1 14 Stat. 1464, 1488 (2000). Section 1594 (General provisions) made “attempt” a part of the substantive c rime only as to some human- traff icking violations, but not as to all of the m. Id. Had Congress included “ attempt” in § 1595(a) (Civil remedy), that wording woul d have broadened the parallel civil liability beyond what Congress intended in 2008. Thus, the drafting choice improved clar ity. Of course, Congress could have chosen a less ef f icient course: to revise each substantive sec tion to add attempt, conspiracy, neither, or b oth. If Congress had selected that path, there could be no doubt that an attempt to benefit from forced labo r was a violation of § 1589. But instead, Congress’ s chosen path gave rise to a mbiguity. Both the above interpretation and the reading adopted in Ratha I ar e plausible. Thus, Congress was clarifying an ambiguity when it passed the A TRA. The over all cir cums tances here len d even more weight to Congress’ s “clarifying” label. The overarching concern

24 R ATHA V. R UBICON R ESOURCES, LLC in Landgraf i s the unfairness of imposing new b urdens on private actors, punishing behavior that once was legal. Landgraf, 51 1 U.S. at 280. T hat concern is greatly mini mized in the preci se circums tances here. By passing th e AT R A, Congress acted to clarify what the law meant all along— consisten t with h ow that law had been interpreted in other c ircuits. See inf ra Part A. 2.c. Mo reover, an d speci fic to the A TRA, no one disputes that pre - A TRA attemp ts to benefit from forced labor imposed c riminal liability; the only pre - A TRA dispute conc erned whether victims of that crime could re cover civilly. Imposing civil lia bility retr oactive ly on criminal cond uct d oes not r aise the s ame fai rness concerns t hat ar e presen t in other con texts. c. The Statute W as the Subject of a Circuit Split. The ambiguity of the statute is also evide nced by the circuit sp lit that existe d before Congress passe d the A TRA. Before we deci ded R atha I, two other circuit courts had implicitly conc luded that civil liability a ttaches for attempting to benefit financially, or to receiv e anything of value, from participation in a venture involving hum an traf ficking. In Ri cchio v. McLean, 8 53 F.3d 553 (1st Cir. 2017), the First Circuit r everse d a district cour t’ s dismissa l of a plaintif f ’ s civil cla ims unde r the TVPRA. Among the plaintif f ’ s claims wa s Claim 6, which a lleged tha t “the defendant s at the l east at temp ted to violate §§ 1589, 1590, and 1591.” Id. at 557 (emphase s added). By rever sing the dismissal of tha t claim, the First Circuit nec essarily conclude d, at least implicitly, that via § 1594(a) the TVPRA gave r ise to civil lia bility f or “ atte mpt and conspirac y to violate §§ 1589, 1590, or 1591.” Id. at 558 (emphases added). Furtherm ore, in Claim 1 the plaintif f alleged that the

R ATHA V. R UBICON R ESOURCES, LLC 25 defendants knowingly benefitted from forced labor, in violation of § 1589, even though the defendants did not extrac t fo rced labor f rom the plaintif f directly. Id. at 556. T aken together, the First Circuit’ s anal ysis of Claims 1 a nd 6 reinforce s that an attempt to benefit from forced labor states a claim under the TVPRA. As the First Circuit concluded, “the obj ective of forced labor. . . need not be satisfied for liability to atta ch. ” Id. at 55 8. The disse nt attempts to h armoniz e Ricchio and Ratha I by drawing a hard line between th eories of perpetr ator liability and b enefic iary liability. Dissent a t 48–51. But Ricchi o does not support that purported distinction. Rather, Ricchi o recognized that benefitting from force d labor is a violation of § 1589— that is, a defendant who benefits from forced labor is a “perpetr ator” for purposes of civil l iability under § 1595(a). Moreover, R icchio ’s broadly worded holding encompasses the concept that, in the dissent’s own words, an “attempt to violate [§] 1589” stat es a claim f or civil liability. Dissent at 50. That holding conf licts with Ratha I, which concluded that Congress had not “intended to crea te civil liability und er § 1595 for attempts to benefit.” 35 F.4th at 1176. Of equa l importanc e, Plaintiffs he re contend that Defenda nt perpetrated a violation of § 1589. See Compl., D. Ct. Dkt. No. 1 ¶ ¶ 98 –99, 123– 26, 128 –30. The dissent’ s only real response to Ricch io is that Plain tiffs failed t o plead adeq uately an attempted violation of § 1589. Dissent at 47–48, 51 n.5. But, at the summary judgment stage, the parties vigorously litigated the issue of whether an attempt to violate § 1589 states a claim. Indeed, the whole question in this appeal is whether the district court’ s ruling after considering the parties’ arguments on that point— that Congress did not intend for an attempted violation of § 1589 to ope rate retroactively in favor of

26 R ATHA V. R UBICON R ESOURCES, LLC Plaintif fs — is l egally correct. When th e parti es li tigat e an issue and the district court rules on it, the issue is part of the case as i f pl eaded an d, t herefore, the i ssue is pre served for our review. See Fed. R. C i v. P. 15(b) (2) (“When a n issue not raised by the pleadings is t ried by the parties ’ express or implied consent, it must be treate d in all respe cts as if raised in the pleadings. ”); see also Des ertrain v. Ci ty of Los Angeles, 754 F.3d 1 147, 1 154 (9th Cir. 2014) (holding that even if plaintif fs fail to rais e a cla im properly in th e pleadings, the claim may be raised at summary judgment under Rule 15(b)); Madeja v. Olym pic Pack ers, LL C, 310 F.3d 628, 636 (9th Cir. 2002) (holding that a motion to conform a compl aint t o th e eviden ce is “irrel evant ” and unnecessary when the district court c onsidered an unpleade d claim on the mer its). Probab ly for that reason, the district court and Ratha I did not rely on the compl aint’ s l ack of an expre ss allegation of attempt liability in gr anting and af firming sum mary judgment for Def endant. See Ratha v. Phatthana Seafood Co., No. CV 16 -4271- JFW (ASx), 2017 WL 8293174, at *6 (C.D. Cal. Dec. 21, 2017) (order) (conside ring Plaintif fs’ theory of attempt lia bility on the merits at summary judgment, albeit briefly, and finding no “legal support” for it). Also presumably for the same r eason, Defen dant’ s response to Plaintif fs’ Rule 60(b)(6) motion did not a r gue that Plaintif fs failed to plea d attempt lia bility. Defe ndant ar gued only that the distr ict court’ s judgment is “adequa tely supported by independent grounds. . . unrel ated to Plaintif fs’ attempt to benefit the ory,” that the A TRA does not apply retroactively to Defendant’ s conduct, and that “there are no ‘extraordinary circumstances’ justifying vacatur under Rule 60(b)(6).” (capitalization altere d). Defend ant mentioned th at it had ar gued at summary judg ment that

R ATHA V. R UBICON R ESOURCES, LLC 27 “Plaintiff s’ attempt to benefit theory had not been pled,” but Defendant did not reassert that ar gument and thereby failed to preserve it for our revie w. S ee B ankAm erica P ens ion Pl an v. McMath, 206 F.3d 82 1, 826 (9th Cir. 2000) (refusing to reach an argument that t he appell ants initially raise d, but later abandoned, before the district court). And, regardless of these principles, any pleading deficiency is irr elevant to the question whether the TVPRA provided for civil liability for an a ttempt to benefit — the point on which Ricchio and Ratha I d isagre e. In Roe v. Howard, 917 F.3d 229 (4th Cir. 2019), the Fourth Circuit held that “the text of § 1595 sho ws that it applies coext ensi vely with its [criminal] p redicate of fenses.” Id. at 243 (emp hasi s add ed). The Fourth Circuit thus held that Congress intended to authoriz e civil actions for all the same co nduct that gives rise to criminal liab ility. It is undisputed that, beginning in 2008, criminal liability attached to any attempt to knowingly benefit from forced labor. Pub. L. 1 10 - 457, § 221, 122 Stat. 5044, 5067 (2008). 7 After the First Circuit’ s decision in 2017, and again after the Fourth Circuit’ s decision in 2019, Congress sa w no need to act. But we reache d the opposite statutory interpretation in Ratha I. W e held that the lack of th e words “or att empts” in § 1595 itself was fata l to Plaintif fs’ claims. R atha I, 35 F.4th at 1 176. In so doing, we rejected the interpretations of the First and Fourth Circuits, namely, that under the TVPRA criminal lia bility gives rise to c oextensive civil liability, including for attem pt ed violations of § 1589. Accordingly, 7 In terestingly, each of these two cas es reached the same conclusion as our alter native re adi ng above, but by different anal ytical rout es. The f act that the re were s everal ways t o understand t he text of the 2 008 version of the statute underscores the ambig uity that we have identified.

28 R ATHA V. R UBICON R ESOURCES, LLC when Congress passed the A TRA, it ended the circuit split created by Rath a I. The disse nt is simply wrong when it asse rts that the existenc e of a circuit split is irr elevant to ou r assessment of retroactiv ity. Dissent at 48. S ee, e.g., ABKCO Music, 217 F.3d at 690– 91 (consid ering, when deciding whether an amendment was retroactive, whether an ambiguit y in the earlier statu te cre ated a circui t spli t befo re Cong ress ch ose one of the competing interpretations); Cal lejas v. McMaho n, 750 F.2d 729, 731 (9th Cir. 1984) (noting that “ a ‘di spute or ambiguity, such as a split in the circ uits, [is ] an indica tion that a subsequent amendment is intended to clar ify, rather than change, the existing ’” meaning of a statute (alteration in original) (citatio n omitted)); s ee also Adhikari v. Kellogg Brown & Root, Inc., 845 F.3d 184, 201 –02 (5th Cir. 2017) (noting that the existence of a conflict or ambiguity before Congress passes an amendment is a factor that informs whether t he amen dmen t merely makes what Co ngress intended all along even more unmistakably clear, and thus is retroa ctive, a nd holding that an amendment to § 1596 of th e TVPRA was not ret roacti ve in part b ecause “n o ci rcuit split or conflict. . . ‘provoked’ Congress to ‘ enact an a mendm ent to clarify rather than [to ] chang e the l aw ’” (citation omitted)). d. Congress Acted S wiftly. Congress also indicated its retroactive intent by acting quickly. C ongress’ s overturning of a court’ s interpretation of a statute does not — “by itse lf” — signal retr oactivity. Rivers, 51 1 U.S. at 304 – 05. But “[i]t is the duty of a court in construing a statute to consider time and circums tances surrounding the enactment as well as the object to be accomplished by it.” Callejas v. McMahon, 750 F.2d 729,

R ATHA V. R UBICON R ESOURCES, LLC 29 731 (9th Cir. 1984). As we and other circuits have held, a fast - acti ng legi slativ e body t hat amend s a statu te in the face of an ambiguity or a dispute among courts as to th e meaning of the statute suggests that the ch ange is a m ere cl arifi cation, rather than a substantive c hange in the law. See, e.g., id. (“[A] ‘dispute or ambiguity, such as a split in the circuits, [is] an indication that a subsequent amendment is intended to clarify, rather t han change, the existing law. ’” (s econd brackets in original) (citations omitte d)); McCoy v. Chase Manhattan Bank, USA, Nat’l Ass’n, 654 F.3d 97 1, 974 (9th Cir. 201 1) (“If the amendment was enacted soon after controversies arose about interpretation of the original a ct, it is lo gical to regard t he amendm ent as a leg islat ive interpretation of the original ac t. . ..” (quoting 1A Norma n J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction, § 22.31 (7th ed. 201 1))). W e first published R atha I on February 25, 202 2. 26 F.4th 1029, as amended and superseded on denial of reh’ g en banc, 35 F.4t h 1 159 (9th Cir. May 31, 2022). Before Ratha I, no other circ uit court had interpreted the TVP RA as we had on the issue of c ivil a ttempt liabili ty; thus, up to that point, Congress had no reason to act. But, less t han sev en months after our amended opinion issued in Rath a I, and a few days aft er the S upreme C ourt d enied c ertiorari, 8 Congress amended the A TRA, adding the precise words that we had held were missing from the statute. See All Actions: 8 The diss ent correct ly notes that Plain tiffs’ petitio n for certiorar i did no t add ress their claims again st Defen dant. Dissen t at 52 n.6. But t he diss ent’s s peculation abo ut Pl aintiffs’ s trategy does n ot undermi ne our conclusi on that Cong ress acted s wiftly follow ing our de cisi on in Rath a I. And, of c ourse, we do n ot know w hether members of C ongress examin ed the petition fo r certiorari, as distin ct from Ratha I, Ricchio, and Roe v. H oward.

30 R ATHA V. R UBICON R ESOURCES, LLC S.3946 — 1 17th Congress (2021 –2022), https://www.congre ss.gov/bill/1 17th- con gress/ senate - bill/3946/all - actions (last visited Nov. 4, 2025) (noting that the Senate and the House considered and passe d the bill on December 20, 2022, and December 22, 2022, respectively). That timeline strongly suggests that Congress ac ted to resolve the disagreement between circuit courts and to correct Rat ha I ’ s error. Congress often moves slowly, and we have considered timeframes longer tha n ten months to be quick enough to weigh in favor of retroactivity. S ee, e.g., McCoy, 654 F.3d at 974–75 (finding legislation passed within fifteen m onths of an erroneous judicial inte rpretation to be clarifying). Addit ionally, lawmakers introduced the relevant amend ment on the same d ay th at the S enate p assed it. See All Actions: S.3946 — 1 17th Congress (2021 –2022). Had the A TRA created an entirely new form of liabilit y, one might expec t a last - minut e amendm ent to recei ve at l east some discussion on the l egislative floor. Congress’ s speed and its minimal discussion strongly suggest tha t Congress intended to clari fy retr oactively what t he l aw alr eady meant, not to mak e a substantive change in the law. It also is worth noting that the ATRA took effect immediately when the President signed it in Jan uary 2023. There was no notation that the A TRA would take ef f ect on a later dat e, so th e general rule that acts tak e effect immed iately, once en acted, ap plies. See Gozlon- Peret z v. United State s, 498 U.S. 395, 404 (1991) (stating rule). A later effective date would have suggested that Congress did not i ntend for the ATRA to be applied retroactively. See Fitzgerald v. Century Park, Inc., 642 F.2d 356, 35 9 (9th Cir. 1981) (interpreting an amendment as not intended to be retroactive when it took ef fect six month s after its e nactmen t, noting that it was “unlikely that Congress would delay the

R ATHA V. R UBICON R ESOURCES, LLC 31 effective date o f amen dment s which are to b e applied retroa ctively ”). e. Those Factors, T ogether, R eflect Congress’ s Intent. In sum, Congress intended for the AT R A to have retroa ctive effect. C ongress made its inten t clear by clarifying the meaning of a n ambiguous statute, by la beling the amend ment “t echnica l and clari fying, ” and by passing its clarif ication soon af ter we misinterprete d the statute’ s meaning. These indicia are similar to those that we have found suf ficient in the pa st to warrant retroactive application of a law. See, e.g., McC oy, 654 F.3d at 974 (holding a law to be ret roacti ve becau se it was ena cted soo n after co urts disagreed as to its original meaning); Bels he, 132 F.3d at 1266 (holding a law to be retroactive because it clarified an ambiguity that had led to a “split of authority”). The dissent faults us fo r considering indicia of congressional intent that are not identif ied in Landgra f. Dissent at 40. But Landgr af does not spell out the factors to be considered when determining whether Congress intended to act re troactively. See 51 1 U.S. at 262 – 63 (cons idering legislative history and statutory framewo rk). As a gener al matter, we consi der “al l avai lable evi dence” t o det ermine Congress’ s intent. See Carne ro v. Bos. S ci. Corp., 433 F.3d 1, 8 (1st Cir. 2006) (quoting Sale v. Haitia n Ctrs. Council, Inc., 509 U.S. 155, 177 (1993)). Indeed, in R ivers, a companion case to Landgraf, the Court looked to so me of the factors t hat we consider here: th e section ’ s title and whether the statute had a “re storative purpose,” meaning the purpose to override a judicial inte rpretation of the statute at issue. Rivers, 51 1 U.S. at 30 7 – 08, 31 1. And contr ary to the dissent’ s contention, cases d ecided b efore Lan dgraf are relevant to the pr esent inquiry. See, e.g., Fit zgerald, 642 F.2d

32 R ATHA V. R UBICON R ESOURCES, LLC at 358– 59 (analyzing congressional intent to determine whether an am endm ent applied retroactively). Th e same is true of our later cases that we now ov errule insofar as they did not apply Landgraf. See, e.g., Belshe, 132 F.3d at 1265– 66. W e need not t hrow out the baby with the bathwater: those decision s remain valid to the e xtent that they consider ed indicia of congressional intent. Finally, the dissent errs by looking at ea ch indic ator of congressional intent in isolation. Cf. United States v. Arvizu, 534 U.S. 266, 274 (2002) (reject ing a “divide- an d -conquer analysi s”). W e do not suggest that any factor alone is suf ficient. Contra Dissent at 39–40. For ex ample, the “clarifyi ng” l abel does not, by itself, indicate Congress’ s intent. See Rivers, 51 1 U.S. at 3 11 (discussing the weight accorded to a statute’ s s tat ed purpose). B ut considering all of the availabl e evide nce toget her, w e c onclude that Congress made its inte nt clear. B. The District Court Erred by Denying Plaintiffs’ R ul e 60(b) Motion. Section 1595’ s retroac tivity fatally undermines one of the three grounds on which the district court had pre mised its grant of summary judgment. Rubicon argues that, even if § 1595(a) is retroactive, the two remaining grounds are suf ficient to justify de nial of Plaintif fs’ Rule 60(b) motio n: (1) Plaintiffs did not demonstrate that Rubicon knowingly participated in a human trafficking venture; and (2) Plaintif fs did not demonstrate that Rubicon knew, or sho uld have known, that human traf fi cking was occurring at Phatthana’ s factory. W e must now determine whether either of those grounds is legally sound. W e may review the district court’ s reasons for gra nting summary judgment because the court incorporated them into the decision under review by relying

R ATHA V. R UBICON R ESOURCES, LLC 33 on them to deny Plaintif fs’ Rule 60(b) motion. As th e distric t court sta ted: “ [T]he Court agree s with Rubicon that the Court’ s decision [on summary judgment] is fully s upported by the first and second grounds and the change to Section 1595(a) does not apply to or in any way affect the first and second grounds of the Court’ s decision. As a res ult, the Court concludes that because the ch ange to Section 1595(a) would not alter the Court’ s decision in favor of Rubicon,” the Phelps factors cannot avail Plai ntiffs. Rath a, 2023 WL 2762044, at *4 (emph ases ad ded); s ee Mitchell v. Unite d St ates, 958 F.3d 775, 784 (9th Cir. 2020) (noting t hat we review de novo “questions of law underlying the district court’ s ” denia l of a Rule 60(b) motion (emphasis added)). 9 Additionally, we a re not bound by any earlier decision of our court with respect to those two issues, as Ratha I upheld summary judgment for Rubicon solely on the grounds that Rubicon did not actually benef it and that the statute did not provide a civil remedy for attempts to benefit. 35 F.4th at 1 175–76. 9 The diss ent contends that we err by “ brin g [ing] up the underlying judgment for re view” on review of a Rul e 60(b) mot ion. Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S. 2 57, 263 n.7 (1978); Dissent a t 58 – 60. Not so. We simp ly review the d istrict cou rt’s reason s for den ying Rule 60(b) r elief. H ere, the district court denied Rule 60(b) relief express ly based, in part, on re ason s set forth more fully in it s deci sion granting summary jud gment. We therefore review those reasons. See Lebahn v. Owens, 813 F.3d 1300, 1305 – 06 (10th Ci r. 2016) (acknowle dging as “unexcept ional” t he notion that “ wher e the dist rict court ‘ reviews its own mi stake of la w unde r Rule 60(b)(1) an d that determination is appealed,’ a court of appeals ‘will reach the substantive le gal merit s of the underlying j udgment’” (qu oting 12 James Wm. Moore et al., Moore ’ s Federal Practice — Civil § 60.68 (2015))).

34 R ATHA V. R UBICON R ESOURCES, LLC 1. The D istri ct Court Erred as a Matter o f Law on th e Participa tion Eleme nt. The dis trict co urt made t wo rel ated err ors o f law wh en it held that Plaintif fs did not present evidence that Rubicon participated in a human traf fi cking venture. First, the district court applied a lega lly erroneous definition of “participate,” requiring Plaintif fs to show that Rubicon “took some action to operate or manage the venture.” Ratha, 2017 W L 8293174, at *4– 5 (citation omitted). The district court’ s definition is contrary to the ordinary meaning of “participate,” which is “to take part.” Participa te, Merri am – W ebs ter, https://www.merriam - webster.com/dictiona ry/participa te (last visite d Nov. 4, 2025); see Doe #1 v. Red Roof Inns, Inc., 21 F.4th 714, 724 – 2 5 (1 1th Cir. 2021) (defining “participate” as “to take part in or share with others in common in or in association” (citing Black ’ s Law D iction ary (1 1th ed. 2019) (defining “partici pation ” as “T he act of taking part in somet hi ng. ”) and Oxford English Dictionary 268 (2d ed. 1989) (def ining “partici pate” as “ [a] takin g part, association, or sharing (with others) in some ac tion or matter.”))). The ordinary meaning applies because the statute contains no spec ial definition. See Chacon v. W ilkinson, 988 F.3d 1 131, 1 134 (9th Ci r. 2021) (holding that we interpret a te rm according to its ordinary meaning when Congress does not defin e it). The district co urt’ s erroneous definition of “participa te” he ld Plaintif fs to too high a b ar; one can pa rticipate i n a ven ture without operating or managing it. Second, the district court did not view all facts and inferences in favor of Plaintif fs. See Anderson, 477 U.S. at 255 (“The evidence of the non - movant is to be believed, a nd all ju stifi able inferen ces are t o be drawn i n [their ] favor.”).

R ATHA V. R UBICON R ESOURCES, LLC 35 The distric t court stated that it did not consider the factua l disputes to be “material to the disposition of [the] motion.” Ratha, 2017 WL 8293174, at *1 n.1. B ut Rubicon’ s marketin g materia ls touted that it was in “contr ol [of] every aspect of production,” which is material to a consideration of Rubicon’ s participation. Applying the proper definition of participation, and viewing the facts in the light most favo rable to Plaintif fs, a reasonable jury could find that Rubicon participated in a human traff icking venture. Thus, the district court erred in relying on that ground when it denied Plaintiffs’ R ule 60(b)(6) motion. 2. The D istri ct Court Erred as a Matter o f Law on th e Knowledge Element. The district court again doubly erred in holding t hat the record does not contain evidence that Rubi con knew or should have known about Phatthana’ s human traf ficking at the time of its attempt to bene fit. Th e distric t court ignored a holding from Ratha I that remain ed law of t he case — that Rubicon had knowledge of Phatthana’ s alleged human traf ficking at least by Fe bruary 2012. See R atha I, 35 F.4th at 1 177 (stating that “Rubicon was undisputedly aware of Ratha’ s whistleblower report” be ginning on February 23, 2012). Because Rubicon attempted to sell shrimp to W almart after that date, it a ttempted to benefit with the requisite knowledge. Even if that holding in R atha I had not been binding, the district co urt also f ailed to vie w the evidenc e in the light most favorable to Plaintiffs. A reasonable jury c ould infer that Rubicon should have known about the conditi ons at the factories as e arly as Octo ber 201 1, wh en W al mart refus ed to

36 R ATHA V. R UBICON R ESOURCES, LLC purchase shrim p becau se it was con cerned about the conditions at the factory. R atha I, 35 F.4th at 1 166. Because a reasonable jury could have found that Rubicon knew or should have known about Phatthana’ s alleged human traf fi cking, the district court erred in relying on that ground when it denied Plaintif fs’ Rule 60(b)(6) motion. 3. The Phelps Facto rs W e igh in Favor of Granting Plaintiffs’ Rule 60(b)(6) Motion. Having found legal error in all three grounds on which the district court relied when denying Plaintif fs’ Rule 60(b)(6) motion, we now consider whether the district court’ s denial of Plaintif fs’ motion was, itself, error. W e hold that it was. Plaintiffs sought re lief “from a final judgment, order, or proceeding” of the district court under Rule 60(b). Fed. R. Civ. P. 60(b). Rule 60(b) (6) allows a court to grant relief for “any other reason that justifies relief.” But relief under the rule is appropriate only when “extraordinary circumstances justify[] reopening the judgment.” Bynoe, 966 F.3d at 979 (citation and intern al quotation m arks o mitt ed). A clear an d authoritative change in law may constitute suc h extraordinary circumstances, depending on the consideration of certain factors: For Rule 60(b)(6) motions premised on post- judgment changes in law, we have distilled the e xtraordinary - circumstan ces requirement into six fa ctors, considered flexibly a nd in their totality. W e examine (1) the nature of the leg al change, including whether t he chang e in law res olved an unsettled legal question; (2) whether the

R ATHA V. R UBICON R ESOURCES, LLC 37 movant exercised diligence in pursuing reconsideration of his or her claim; (3) the parties’ reliance intere sts in the finality of the judgment; (4) the delay between the f inalit y of the judgment and the Rule 60(b)(6) motion; (5) the relationship between the change in law and the c hallenged judgment; and (6) whether there a re concerns of comity that would be disturbed by reopening a case. Id. at 983 (citing Phelps, 569 F.3d at 1 134–40). The district court considered the six factors and denied Plaintif fs’ Rule 60(b)(6) mot ion. It determined that the second factor (Plaintif fs’ diligence) and the fourth factor (the delay between judgment and motion) weighed i n favor of granting Pla intif fs’ motion, that the third fac tor (relia nce interests) was ne utral, a nd that the sixth factor (comity) w as inapplicable. W e see no e rror in the district court’ s weighing of those four factors, nor do the parties ask us to. The distric t court determined tha t the first factor (the nature of the legal change) and the fifth factor (the relationship between the change in law and the challenged judgment) weighed heavily against granting the motion. But the legal errors descri bed ab ove dire ctly affected the co urt’ s assessment of those factors. Thus, the district court abused its discretion by relying on an erroneous view of the law in weighing factors one a nd five. Moreover, given our legal conclusions above, the first and fifth factor s weigh in favor of granting Plaintif fs’ motion: the A TRA resolved an ambiguity and had retroactive ef fe ct, directly allowing Plaintif f to bring a civil c laim for attempt liab ility. In sum, four factors weigh strongly in favor of gr anting Plaintif f s ’ motion, one factor is neutral, and one is inapplicable.

38 R ATHA V. R UBICON R ESOURCES, LLC Accor dingly, Plaintif fs are entitled to relief under Rule 60(b)(6) from the district court’ s final order. REVERSE D and REMANDED for further pro cee dings consiste nt wit h this opinion. CALLAHAN, Circuit Judge, in which M. SMITH, Circuit Judge, joins except as to Part I.A., BADE, Circuit Judge, joins in full, BRESS, Circuit Judge, joins as to Part I only, and JOHNSTONE, Circuit Judge, joins in full, dissenting: The facts an d pro cedural his tory of t his cas e are not in question. For that reason, I do not restate them he re. My disagre ement lie s with the majority’ s legal reasoning, analysis, and ultimate holding. Therefore, I turn directly to a discussion of the law. This case pr esents two important issues: (1) the test for d etermining if a statute is r etroa ctive and (2) the scope of a Federal Rule of Civil Procedure 60(b) appeal. Because the majority err s in addressing both issues, I respectfully dissent. I. I agree with the majority that Landgraf v. USI Film Prods., 511 U.S. 244 (1994), governs our retroactivity analysis and that under Landgraf we will give retr oactive effect t o a stat ute (1) if C ongress expressly makes the statute retroacti ve, or (2) if the st atu te would have ret roact ive eff ect and Congress clearly intended that result. 1 Id. at 280. I also 1 T he majority describes Landgraf as “a three - step framework for deciding whether an enactment . . . ap plies retroactively.” Maj. Op. at 13. Cou rts are spli t on how t hey descr ibe the Landgraf retr oactivity test.

R ATHA V. R UBICON R ESOURCES, LLC 39 agree that our prio r cas es that cr eated an ex cepti on for clarifying amendments, exempting them from the L andgraf framework, are inconsistent with Landgraf itself, and thus the majority properly overrule s them. And finally, I agree that the Abolish Trafficking Reauthorization Ac t of 2022 (“ATRA”) would have retroactive e ffect and thus the presumption against retroactivity applies. My agreement ends there. After purging our precedent of past inconsistent decisions, the majority makes the c urious choice to fold the reasonin g of thes e “overru led” cas es int o its Landgraf analysis, r einfecting the law it c laims to cleans e. 2 Specific ally, in its quest to f ind retr oactive intent the majority continues to focus on whether the A TRA was a “clarifi catio n,” ins tead o f searching for any real i ndicati on of clear congressional intent of retroactivity. In other words, Some call it a “ three - step analysis, ” see e.g., Cruz v. Maypa, 773 F.3d 138, 144 (4th Ci r. 2014), w hile others note that it is a “tw o - step test, ” see e.g., Ma rtinez v. I.N. S., 523 F. 3d 365, 370 (2d Cir. 2008). Our circuit has generally framed Landgraf as a two - step test, see e.g., Valien te v. Swift Transportat ion Co. of Ariz ona, LLC, 54 F.4t h 581, 585 (9th Cir. 2022). I belie ve t he Landgr af test is best u nderstood as a two - par t framework asking three disti nct questions (one ques tion at part one, an d two ques tions a t part t wo). Th erefore, t he analysis which follows applies Landgraf usi ng a tw o - part fra mework. Nonetheless, whether fra m ed as three part s or two parts, the Landgraf test is ultimately th e same. 2 Th e major ity attempts to limit the im pact of its opin ion on our now overruled decisions, stating that “we overrule those cases only in sofa r as they bypa ss a cons iderati on of congres sional inte nt or establis h a contrary presumption regarding ret roactivit y.” Ma j. Op. at 1 4. But our prior de cisi ons crea ted, relied upon, a nd applied a n exce ption t o Landgraf, which we all now agr ee is inconsisten t with Landgraf itself. The majo rity’s attem pt to salvag e the err oneous retr oactivity analysis from those c ases as support for i ts opinion is a kin to buil ding a new hous e with rot ten woo d.

40 R ATHA V. R UBICON R ESOURCES, LLC the major ity is under th e mistake n belief that if legislatio n is clarif ying, it automa tically demonstrates c lear congres sional intent of retroactivity. Not so. A. The major ity cites f our factors, w hich it believe s, “considered together, clearly establish the amendment’s retroactiv ity:” (a) Cong ress ex pressly stated that its enactment was a techn ic al and “cl arifying ” upda te; (b) 18 U.S.C. § 1595(a) was ambiguous; (c) Ratha v. Phatthana Seafood Co. (Ratha I), 35 F.4th 1159 (9th C ir. 2022), created a circuit split concerning the interpr etation of § 1595(a); and (d) Congress a cted swiftly, a nd with immediat e effect, following our decision in Ratha I. Maj. Op. at 1 6. These factors are not found in L andgraf and find no home in the Landgraf progeny. The majority, nonethele ss, seems to impl y that t hese factor s dem onstrat e clear con gressio nal intent that the ATRA is retroactive. But a close read of the majority’s analysis dispels this conclusion. 1. The majority’s first factor is that “Congress expre ssly stated that it s enactm ent was a techni cal and ‘clari fying update.’” Maj. Op. 1 6-17. The major ity cites Bev erly C mty. Hosp. Ass’n v. Belshe, 132 F.3d 1259 (9th Cir. 1997), to support this factor. Oddly enough, howeve r, Bels he nev er cites Landgraf and does not purport to apply the Landgraf test. Rather, B elshe is among t he cases th e majori ty “overruled” just paragraphs before as in consistent with Landgraf. Bel she stands for the proposition that if a law is “clarify [ing]” i t “s tate[s ] mo re clearl y what the l aw al ready was” and t hus “h as no ret roacti ve effe ct that might be called into constitutional question.” Belshe, 132 F.3d at 1265. In other words, Belshe holds tha t if a law is clarifying, it does

R ATHA V. R UBICON R ESOURCES, LLC 41 not requir e a retroactivity a nalysis because it simply states what the law always was. As we all agree, this holding is inconsisten t with Landgraf and the majority’s attempt to fold it into its L andgraf analysis does not cure that inconsistency; it simply makes its reasoning erroneous. Looking past the majority’s relianc e on our now overruled precedent, this factor does not e stablish clear congre ssional inte nt of retroactiv ity. While it is true that “the title o f a statute” is a “‘ tool[] availa ble for the resolution of a doubt’ about the meaning of a statute,” that tool is of little use he re. Almendarez- Torres v. United States, 523 U.S. 224, 234 (1998) (quoting Trai nmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 528 - 29 (1947)). As discussed in more detail be low, the sta tute at issue he r e, 18 U.S.C. § 1595(a), was clea r prior t o the A TRA — there was nothing about the text of the statute for Congr ess to “clarify.” The meaning of the statute was not in dou bt. So why then d id Congress label the legisla tion as “c larifying?” Under the major ity’s view, Congr ess was using “our own languag e, directing us to apply the amend ment r etroacti vel y.” Maj. Op. at 1 9. But if Congress wanted to “direct[] us to apply the amendment retroactively,” then Congress would simply state that the statute a pplies retroac tively. Here, it did not. What Congress like ly meant is that it rec ognized that § 1595(a) did not impose liability on those w ho attempt to benefit fr om unlawful conduct. Upon realizing that, Congress amended the statute to create such l iability, saying nothing of the retroa ctive e ffect. Under t hese ci rcum stances, t he word “clarifyi ng” in the title of the ATRA does not show that Congress was expressing its intent, sub silentio, for the statute to a pply retr oactively. Additionally, the major ity relies on Rivers v. Roadway Exp., Inc., 511 U.S. 298 (1994), to bolster its analysis

42 R ATHA V. R UBICON R ESOURCES, LLC regarding the “clarifying nature of Congre ss’s amendment.” Maj. Op. at 1 7-19. Th e majori ty’s rel iance o n River s is ironic, because Rivers is a blueprint outli ning precisely why the majority is wrong. In Rivers, the Supr eme Court determin ed that § 101 of the Civil Rights Act of 1991 was not ret roactive. Id. at 30 0. The Court held that “Congress’ decision to alter the ru le of law established in [Patterson v. McLean Credit Union, 491 U.S. 164 (1989)] — as petitioners put it, to ‘ legislative ly overrul[e]’ — does not, by i tself, reveal whether Congress intends the ‘overruling’ statute to apply retroactively.” Id. at 304 (inte rnal cita tion omitted). Indeed, as the Court noted “the choice to enact a statute that responds to a judicial decision is quite distinct from the choice to make the res pon ding s tatute r etroactiv e.” Id. at 305. The petitioners in Rivers argu ed “th at the s tructur e and legislative history of § 101 indicate that Congress specifi cally in tended t o ‘res tore’ prio r law ev en as t o parti es whose rights would otherwise have been determined according to Patterson ’s interpre tation of § 1981.” Id. They also pointed “to evidence in the 1991 Act’s legislative history indic ating legis lators’ distress w ith Patterson ’s construction of § 1981 and their view that [the Court’s] decision had narrowed a pre viously established understa nding of that provision.” Id. at 305 - 06. Ac cepting these arguments, the Court assumed “that § 101 reflect[ed] congressional disapproval of Patterson ’s interpretation of § 1981” and also assumed “that many or even most legislator s believe d that Patterson was not only incorrectly decided but also represented a departure from the p reviously prevailing understanding of the reach of § 1981. ” Id. at 306 - 07. But the Supreme Court held that those assumptions only explain “why Congress might have wanted to l egis late

R ATHA V. R UBICON R ESOURCES, LLC 43 retroactively” not whether Congress intended the legislation to be retroactive. Id. at 307. The Court held that those assumptions w ere insuff icient to de monstrate clear congressional intent of retroactivity. Id. Bec ause there w as no clear expre ssion of congressional intent that the statute apply retroactively, the Court declined to apply the statute retroactively. Id. at 313. Applying Rivers to the instant ca se makes quick work of the majority’s position. Pursuant to Rivers we m ay assum e for purposes of our retroactivity analysis that the ATR A was a clarification, that Congress disapproved of our decision in Ratha I, and that “many or even most l egislators believed that” Rat ha I was in correctly decided, but nonetheless still find that the ATRA does not apply retroactively. That is because, as Rivers m akes clear, those assumptions do not demonstrate a clear expression of congressional intent that the statute should apply retroactively. For this rea son, our role is to de termi ne, outside of these assumptions, if there is a clear expression of c ongressional intent. As outlined in more detail below, no such clear expression exists here. “Congress . . . has the power to amend a statute that it believes [a cour t has] mi sconst rued” and even “ma ke such a change retroactive and thereby undo what it perce ives to be the undesirable past consequences of a misinterpretation of its work product.” River s, 511 U.S. at 313. But Congress’ “intent to reach conduct preceding the ‘corrective’ amendmen t mus t clearly appear. ” Id. Bec ause no clear expression of retroactive intent exists in this case, we should apply the reasoning in Rivers and conclude th at the AT RA does not apply retroactively.

44 R ATHA V. R UBICON R ESOURCES, LLC 2. The majo rity’s second fact or is th at “the s tatute was ambiguous.” Maj. Op. at 1 6, 20. The majorit y cites n o case supporting the use of this factor in its Landgraf analysis but noneth eless us es this facto r as a vehi cle to ar ri ve at it s desired destination. This is likely because the majority needs the statute to be ambiguous for it to conclude that t he ATRA was “clarifying.” But aga in, the question is not whe ther the ATRA clarified an ambiguity, the question is whether Congress clearly intended it to be re troactive. Indeed, the ration ale of River s appli es with equal force to this fac tor. Congress may have thought that Ratha I created an ambiguity and enacted the ATRA in r esponse, but identifying a possible reason for congressional action “does not supply sufficient evidence of clear congressional intent to overcome the presumption against statutory retroactivity.” Rivers, 511 U.S. at 309. There is sim ply no evidence that Congres s clea rly int ended the ATRA to re ach cas es that arose be fore its enactm ent. Even accepting ambiguity as a releva nt factor in determin ing legislativ e intent, a revie w of the s tatute makes clear that it is not, in fac t, ambiguous. The major i ty strives to demo nstrat e that befo re the ATR A, the st atute was ambiguous. But the statute’s pre - amendment clarity is revealed by simply reading its text and understanding Chapter 77’s statutory framework. The statu te: At the time Pla intiffs file d suit, th e sta tute at issue, 18 U.S.C. § 1595(a), provided: An individual who is a vi ctim of a violation of this chapter may bring a civil action against the perpetrator (or whoe ver

R ATHA V. R UBICON R ESOURCES, LLC 45 knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has e ngaged in an act in violation of t hi s chapter) in an appropr iate district c ourt of the U nited State s and may recov er dama ges and reas onable attorneys fees. 18 U.S.C.A. § 1595 (2008). The violations refe rred to in § 1595(a) are the criminal violations contained in Chapter 77. Thus, a victim of a criminal violation of Chapter 77 could sue (1) a perpetrator of the violation and (2) a knowing beneficiary of the violation. The statute, however, does not impose civil l iability on so meone wh o attempts to benefit from that violation. There fore, a victim could not sue an “attemp ted bene ficiary. ” In general terms, a perpetrator violates Chapter 77 if they (1) engage in peonage or obstruct enforce ment against peonage (§ 1581), (2) are involved with a vessel for slav e trade (§ 1582), (3) engage in entic ement of others into slavery (§ 1583), (4) engage in the s ales of others into slavery (§ 1584), (5) engage in the s eizure, detention, or transportation of slaves (§ 1585), (6) are involved with service on vessels in sl ave trade (§ 1586), (7) possess slaves aboard a vess el (§ 1587), (8) transport slaves from the United State s (§ 1588), (9) engage in forced labor (§ 1589), (10) engage in trafficking with respect to peona ge, slavery, involuntary servitude, or forced labor (§ 1590), (11) engage in sex trafficking of children or sex trafficking by use of force, fraud, or co ercion (§ 1591), (12) engage in unlawful conduct regarding documents to further trafficking, peonage, slavery, involuntary servitude, or forced labor

46 R ATHA V. R UBICON R ESOURCES, LLC (§ 1592), or (13) knowingly benefit financially from peonage, slavery, and trafficking in persons (§ 1593A). Additionally, a perpetrator can violate Chapter 77 if they attempt to (1) engage in peonage or obstruct enforcement against peonag e (§ 1581), (2) eng age in en ticem ent of others into slavery (§ 1583), (3) engage in the sa les of others into slavery (§ 1584), (4) engage in forced labor (§ 1589), (5) engage in sex trafficking with respect to peonage, slavery, involuntary servitude, or forced labor (§ 1590), or (6) engage in sex trafficking of children or sex trafficking by use of force, fraud, or c oercion (§ 1591). See 18 U.S.C. § 1594 (2008). How th e statut e work s: Recall that a victim could sue (1) a perpetrator, and (2) a knowing beneficiary. But a victim could not sue an attempted be neficiary. For example, a victim of peonage could sue (1) the person who held the victim in peonage (the perpe trator), and (2) anyone who knowingly benefited from the victim’s peonage (the knowing beneficiary). But the victim could not sue someone who attemp ted to benefit fr om the victim’ s peonage (the attempted beneficia ry). Similarly, a vic tim of atte mpted p eonage could sue (1) the person who attempted t o hold the victim in peonage (the perpe trator), and (2) anyone who knowingly benefited from that attempt (the knowing beneficiary). But the victim could not sue someone who attempted to benefit from the atte mpted peonage (the attemp ted benefi ciary). Majority’s confus ion: The majority confuses t his statutory f ramew ork. The majority a sserts tha t there is a paralle lism between the criminal viola tions and c ivil liability — that f or any c riminal violation, includ ing atte mpt, there must be a corresponding civil liability. Maj. Op. at 22-

R ATHA V. R UBICON R ESOURCES, LLC 47 23. This is largely corr ect and should have led th e majority to the unremarkable conclusion that a perpetrator could b e held li able fo r attem pted conduct (be cause attemp ted conduct could amount to a violation of Chapter 77), but a knowing beneficiary could not. Instead, the majority conclude d that this parallelism someh ow imposed a ttempt liability on beneficiaries. It did not. The majority calls upon § 1589 for support, but § 1589 does not and cannot answer that call. Maj. Op. at 22. Fa r from supporting the majority’s position, § 1589 proves its error. Section 1589 establishes two theor ies of criminal liability for forced labor: (a) to knowingly provide or obtain forced labor, a nd (b) to knowingly benefit from forced la bor. 18 U.S.C. § 1589(a), (b). If someone violates either subsection (a) or subsection (b) they are a perpetrator for purposes of § 1595(a) liability. Sec tion 1594 makes it a criminal v iolation to attempt to v iolate § 1589. Id. at § 1594. Accordingly, if someone violate s § 1594 by either (a) attempting to provide or obtain forced labor, or (b) attempting to knowingly benefit from forced labor, they too are a perpe trator for purposes of § 1595(a) liability. Here, h owever, Pl aintif fs alleged clai ms ag ainst R ubicon Resources, LLC (“Rubicon”) under a knowing bene ficiary theory of liability, not a perpetrator theory. Plaintiffs ma y have been able to alle ge a claim against Rubicon as a perpetra tor of forced labor under § 1589(b) and § 1594, rather than as a knowing benef iciary. Plaintiffs, however, did not plead such a claim and have never argued that Rubicon was a pe rpetrator of forced labor under §§ 1589(b) and 1594. Indeed, there are no factual allegations in the complaint that Rubicon attempted to do anything, much less that they attempted to violate § 1589(b). Nonethe less, Plaintif fs’ ability to alle ge such a cla im

48 R ATHA V. R UBICON R ESOURCES, LLC highlights the majority’s misunderstanding of the s tatutory framework while also demonstrating the fra mework’s clarity. Thus, to the extent that ambiguity is rele vant to our Landgraf ana lysis, it weig hs against r etroactivity because the operation of § 1595(a), while perhaps complex, wa s not ambiguous. 3. The major ity’s third f actor is that the s tatute was the subject of a circ uit split. Maj. Op. a t 16, 24. The ma jority asserts that our previous decision in Ratha I creat ed a circuit split with both Ricchio v. McL ean, 853 F.3d 553 (1st C ir. 2017), and Roe v. Howard, 917 F.3d 229 (4th C ir. 2019). To be clear, whether a circuit split e xisted doe s not tell us anything meaningful about whether Congress intended the ATRA to be retroactive. Regardless, the majority is mistaken — the re is no circuit split. The majority’s misunderstanding here stems largely fr om its confusion, discussed above, about how the statute works. In Ricch io, a victim sued a series of individuals under a perpetrator theory of liability. 3 Ricchio, 853 F.3d at 556 -57. The First Circ uit reversed the distr ict cour t’s dismissal of the plaintiff’ s claims, finding that the c omplaint allege d sufficie nt f acts to susta in a theory of perpetra to r liability under the applicable statutes. Id. at 558. This case did not establish a ttempt liabil ity for bene ficiarie s, as the ma jority would have you believe. Nor could it. Ricchio has nothing to do with ben eficia ry liability; it is a case about per petrator liability. If anything, Ricchi o confirms that Plaintiffs here 3 This is evident by how the cl aims were plea ded. In Ricchio there were six cl aims, which al leged actua l conduct a nd attempt ed conduct i n violati on of Chapter 7 7. 853 F.3d at 556 - 57.

R ATHA V. R UBICON R ESOURCES, LLC 49 may have been able to bring a claim against Rubicon under a theor y of perpetra tor liability — but again, they did not. Therefo re, R icchio does not st and as a direct contradiction to our decision in Ratha I. Indeed, in Ratha I, we explic itly stated that “[n]either Rubicon nor Wales ar e alleged to have perpetrated any [] violations against Plaintiffs.” R atha I, 35 F.4th at 1175. Comparing Ricchio to Ratha I is a c lassi c case of comparing apples (a case about perpetrator liability) to oranges (a case ab out b e nefic iary liab ility). The majority disagrees with this reading of Ricchio. It believes that Ri cchio d id n ot all ege claims of act ual and attempted conduct and mistakenly thinks that Ricchio is not a case about perpetrator liability. The majority’s confusion here is consistent with its confusion about the statutory framework of Chapter 77 as discussed above i n the section labeled “Majority’s confusion.” To once again tr y to dispel this conf usion, I reite rate what I expla ined above, this time using the c laims in Ricchio as ex amples. Claim One in Ricchio alleges a violation of §§ 1589 and 1595(a). 4 The violation of § 1589 provides the Chapte r 77 violation whic h gives rise to civil lia bility under § 1595(a). A person can violate § 1589 if they knowingly provide or obtain forced labor or if they knowingly benefit from forced labor. A person who vi olates § 1589 is a perpetra tor for purposes of § 1595(a). Therefo re, C laim On e is a cl aim against an alleged per petrator who allegedly violated § 1589 by knowingly benefiting from forced labor. Ricchio, 853 F.3d. at 556. 4 In discussin g the claims in Ricch io, § 1595(a) refe rs to t he pre - ATRA version of the sta tute tha t was a pplica ble whe n Ricchio was decided and when Plain tiffs in the in stant case filed th eir comp laint. See 18 U.S.C. § 1595(a) (2008).

50 R ATHA V. R UBICON R ESOURCES, LLC At the risk of belaboring the point, I turn to some of the remainin g claims in Riccio to hammer the explanation home. Claim Two alleges a violation of §§ 1590 and 1595(a). The violation of § 1590 provides the Chapter 77 vi olation which gives rise to civil l iability under § 1595(a). Section 1590 makes it unlawful to, inte r alia, harbor any pe rson for labor or services in violation of Chapter 77. A person who violates § 1590 is a perpetrator for purposes of § 1595(a). Therefo re, Claim Two is a claim agai nst an al leg ed perp etrator o f § 1590. Id. Claim Three alleges a violation o f §§ 1591 and 1595(a). The violation of § 1591 provides the Chapter 77 violation whic h gives rise to civil lia bility under § 1595(a). A person violates § 1591, inter alia, if they knowingly benefit, financially or by rece iving anything of value, from participation in a venture which ha s engaged in an ac t in violation of § 1591(a)(1). A person who vio lates § 1591 is a perpetrator for purposes of § 1595(a). Ther efore, Claim Three is a cl aim agai nst an al leged perp etrato r of § 1591. Id. Claims Five and Six bring in conspiracy and attempt liability. Specific ally, Claim Five allege s viola tions of § 1594(b) and (c), and § 1595(a). Th e violations of § 1594(b) and (c) provide the Chapter 77 violations which give rise to civil liability under § 1595(a). A pe rson violates § 1594(b) and (c) if they, inter alia, conspire with another to violate §§ 1589, 1590, and 1591. A person who violates § 1594(b) and (c) is a perpetrator for purposes of § 1595(a). Therefo re, Clai m Fiv e is a clai m agains t an alleg ed perpetrator of § 1594(b) and (c). I d. at 556 - 57. Claim Six alleges a violation of §§ 1594(a) and 1595(a). The violation of § 1594(a) provides the Chapter 77 violation w hich gives rise to civ il liability under § 1595(a). A person violates § 1594(a) if they attempt to vi olate §§ 1589, 1590, and

R ATHA V. R UBICON R ESOURCES, LLC 51 1591. 5 Therefor e, Claim Six is a cla im ag ainst an alle ged perpetrator of § 1594(a). Id. at 557. Thus, Ricchio is a cas e about perpetrator liability, which includes both actual and attempted conduct. In Howard, a victim brou ght a cas e agai nst her emplo yer, Linda Howard, for a buses suffered while in her e mployment, including sexual assault. Howard, 917 F.3d at 237 - 38. In affirming the judgment a gainst the employer, the Fourth Circuit concluded that “the text of § 1595 shows that it applies coextensively with its predicate of fenses . . . .” Id. at 243. This is correct and not in dispute. Perpetrators may be held liable both for their conduct and their attempte d conduct because both are violations of Chapter 77. It does not follow that attemp t liability app lies to k nowing ben eficiaries. Ratha I did not re ject the notion that § 1595 “applies coe xtensively with i ts predi cate offens es.” Id. It simply re cognized tha t there is no attem pt li ability f or benefi ciaries. Thes e cases ar e thus in harmony. Ricchio and Howard are not in t ension with our previous decision in Ratha I. More importantly though, neither Ricchio nor Howard support the majority’s position on retroa ctivit y. Thes e are t wo cases from tw o dif ferent circuits that properly understood the statutory framework of Chapter 77. Both cases are demonstrative of a clear functioning statutory scheme, not an ambiguous one, and using them to 5 T his is the crit ical claim tha t is m issing fr om Plaintif fs’ complain t here. Had Plaintif fs in the instan t case alleged a violatio n of §§ 1594(a) a nd 1595(a), t hen their c omplai nt could proc eed un der a theor y of perpetrat or liabil ity against R ubicon for at tempti ng to be nefit fr om forced l abor. B ut Plai ntiffs did not al lege s uch a viola tion, neve r sought leave to amend to add such a violation, a nd never argue d that they i ntende d or wa nted to allege such a violation.

52 R ATHA V. R UBICON R ESOURCES, LLC assert that there was confusion or ambiguity is an affront to their sound reasoning. 4. The majority’s fourth fac tor is that “Congress acted swiftly.” Maj. Op. at 1 6, 28. To suppor t this fa ctor the majority points to three cases, Rivers, 511 U.S. at 304 -05, Callejas v. McMahon, 750 F.2d 729, 731 (9th Cir. 1984), and McCoy v. Chase Manhattan Bank, USA, Nat’l Ass’n, 654 F.3d 971, 974 (9th Cir. 2011). The majority’s re liance on R ivers continues to pe rplex. As discussed above, Rivers only highlights why the majority is wrong and importantly here, Rivers says nothin g about the speed of congressional action. Callejas was decided pre - L andgraf and does not speak to the speed of congressional action, and McC oy w as decided w ell aft er Landgraf but dec lined to apply the Landgraf test to its r etroactivity analysis. Bu t even putting aside the shortcomings of the majority’s authority here, Congress’ purportedly “ s wift” action te lls us little about the retroactiv e effec t of its amendment. 6 Here, § 1595 (a) simply did not provide for a lawsuit against an attempted 6 Moreover, the t iming of the amendm ent doe s not s upport th e majority’s argument t hat Con gress acted i n response to our decis ion i n Ratha I. Instead, Congress amended the statute nearly a year after Ratha I was decided. And whil e Cong ress acted s hortl y after the Supreme C ourt denied Plaintiffs’ petitio n for certiorar i in Rath a I, that petition raised only iss ues related t o person al jurisdict ion and Pl aintiffs’ perpet rator liability claim s against oth er Def endan ts; Plaintiffs’ p etition exp licitly stated that th ey were not ch allenging th e dismissal of their attempted beneficiary cl aims agains t R ubicon. Thus, the timing s uggests that Plai ntiffs did not lobb y for an amendme nt to resur rect t heir a ttempt ed benefic iary claim s until their petitio n for c ertiorari was de nied and th eir perpetr ator liability cla ims against other Defendants f ailed. The timing reflects Plain tiffs’ litigatio n strate gy and, wh en that failed, perhaps their lobbyin g strat egy — it does not suggest congressiona l inte nt.

R ATHA V. R UBICON R ESOURCES, LLC 53 beneficiary and Congress acted to change that, creating new liability for attempte d ben eficia ries. The sp eed with w hich Congress created this new form of liability tells us nothing about whether Congress intended it to be retroactive. Finally, the ma jority state s that it is “worth noting tha t the ATR A took effect imm ediatel y.” M aj. Op. at 30. Th e majority relies on another pre - Landgraf decision to support this factor, Fitzgerald v. Century Park, Inc., 642 F.2d 356, 357 (9th Cir. 1981). In Fitzgerald the court noted that “[i]t is unlikely that Congress would delay the ef fective date of amendments which are to be applied retroactively.” Id. at 359. Thus, if an am endment is retro active, t hen it is unlike ly that its effective date would be delayed. This sheds no light on whether an ame ndment is retroactive, it simpl y says that if it is, it will likely app ly immedia tely. 5. Landgraf demands that Congre ss speak clearly if it wishes for a statute to a pply retroactively. Landgraf, 511 U.S. at 268. In this case, our role is to sear ch for that clear intent of retroactivity. I do not fault the majority for recognizing this as our du ty. I fault the majority for divining clear congressional intent where it does not exist. The majority opinion is root ed in a misunderstanding of the statutory framework of Chapter 77 and a pervasive confusion that I have been unable to remedy despite my best efforts. Compounding errors is the majority’s focus on the alleged cl arifyin g natur e of the ATRA, causing it to rely on erroneous reasoning from cases it has itself over ruled. The cherry on top, perhaps, is that severa l of the cases the majority relies upon demonstrate why the majority is wrong. See R ivers, 511 U.S. 29 8; see also Ricchio, 853 F.3d 553.

54 R ATHA V. R UBICON R ESOURCES, LLC These errors undermine the foundation of the majority’s analysis, rendering the opinion irreparably flawed. B. Far from correcting our precedent to align with Landgraf, the majority flees from it, abandoning Landgraf as quick ly as it cl aimed to emb race it. Th e majori ty’s focu s on whether the ATRA was “clar ifying” an ambiguity blinded it from the real question: whether Congress clearly intended the statute to be retroac tive. As discussed below, unde r a faithful application of Landgraf we should d ecline to give the ATR A retro active effect b ecause t here is no cl ear indication that Congress intended it to be retroactive. Landgraf is based on the simple and long - establis hed presumption that legislation does not apply retroactively. Landgraf, 511 U.S. at 265 (observing that “the presumption against retroactive le gislation is deeply rooted in our jurisprudence, and embodies a legal doctrine c enturies older than our Republic”). The Supreme Court has instructed that, “[e]lem entary consid erati ons of fai rness di ctate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; set tled expectations should not be lightly disrupted.” Id. To overcome the presumption against retroactivity, the Supreme Court constructed a two - step f ramewo rk. A t step one, we determine w hether Congress expressly provided that the st atute be r etroact ive. Id. at 280. If it did, t hen our analysis ends, and we apply the statute retroactively. If “however, the statute contains no such express command,” the court moves to step two. Id. At ste p two, the court must “determi ne whet her t he new s tatut e would h ave retroact ive effect,” by asking whether the statute “would impa ir rights a party po ssessed when [they ] acted, i ncreas e a party’s

R ATHA V. R UBICON R ESOURCES, LLC 55 liability for past conduct, or impose ne w duties with respec t to transactions already completed.” Id. If we fin d that “the statute would operate retroactively, [then] our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.” I d. In other words, “[i]f a ne w statute would ‘impair rights a party possessed when [they] acted, incr ease a party’s liability for past conduct, or impose ne w duties with respe ct to transact ions al ready com pleted, ’ then co urts” should only give ret roacti ve effect to t he stat ute when “cl ear congressional intent favor[s] such a r esult.” Talaie v. Wel ls Fargo Bank, NA, 808 F.3d 410, 412 (9th Cir. 2015) (quoting Landgraf, 511 U.S. at 280). Here, Congress did not expressly state that the ATRA was retroactive. Accordingly, we move to step tw o. Before the ATRA, § 1595(a) allow ed a vic tim of a c riminal violation of Chapter 77 to sue (1) a perpet rator and (2) a knowing beneficiary, but not an attempted beneficiary. The ATRA changed this statutory framework by adding the word “attempt” to § 1595(a). Specifically, it changed § 1595(a) from: An individual who is a vi ctim of a violation of this chapter may bring a civil action against the perpetrator (or whoe ver knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has e ngaged in an act in violation of t hi s chapter) in an appropr iate district c ourt of the U nited State s

56 R ATHA V. R UBICON R ESOURCES, LLC and may recover damages and reasonable attorneys fees, (18 U.S.C. § 1595(a) (2008)), to An individual who is a vi ctim of a violation of this chapter may bring a civil action against the perpetrator (or whoe ver knowingly benefits, or att empts or consp ires to b enefit, financially or by receiving anything of value from participation in a venture which that person knew or should have known has e ngaged in an act in violation of t hi s chapter) in an appropr iate district c ourt of the U nited State s and may recov er dama ges an d re asonable attorn eys fees. (18 U.S.C. § 1595(a) (2023) (e mphasis added)). This change created an entirely new form of l iability. Following the ATRA, § 1595(a) allows a victim of a criminal violation of Chapter 77 to sue (1) a perpetrato r, (2) a knowing beneficiary, and (3) an attempted beneficiary. This substantively changed § 1595 and more i mportantly increased the liability for beneficiaries of unlawful conduct. Because t he ATRA i ncreases a party ’s liab ilit y, here an alleged beneficiary of the statutory violation, we give it re troactive effect only if there is cl ear congressional intent favoring retroactivity. Landgraf, 511 U.S. at 280. There is no indication from the text of the A TRA or from the legisla tive history of the AT RA that it wa s inte nded to apply retroactively. The majority clings to the wor d “clar ifying” in the title of the amendment —noting

R ATHA V. R UBICON R ESOURCES, LLC 57 throughout the opinion that the ATRA was a c larification — as if th at is someh ow a clear in dicati on of con gressi onal intent on retroactivity. As discussed above, it is not. Because we h ave pro perly washed aw ay our preceden t exempting “ clarifications” f rom the Landgraf analysi s, we must look beyond musing about clarifications to find “clear congressional intent.” See id.. Here, there is none. What Congress did is quite simple, it changed § 1595(a) to impose atte mpt liability on bene ficiar ies. It i s unclear exactly why Congress did so. Perhaps because Congress decided such liability should exist; perhaps Congress thought it had created such liability but realize d that it had not; or perhaps Congress simply found something its members could all agree upon and pa ssed the ATRA in a display of unity. What i s clear, however, is that t here is no evidence that Congress intended to impose this new f or m of liability re troactiv ely, much less clear eviden ce of that intent. For these reasons, I would find that the ATRA doe s not apply r etroactive ly and affir m the district court. 7 II. The majo rity c reates a nov el rule fo r Rul e 60(b) appeal s. It holds that in an appeal from the denial of a Rule 60(b) moti on we can “revie w the d istri ct cour t’s r easons for granting summary judgment because the court incorporated them into the [Rule 60(b) order] under review . . . .” Maj. Op. at 3 2-33. Let us pause to take stock of what the major ity has done. The majority has reached beyond the boundaries of this appeal, grabbed the district court’s summary 7 Tha t the A TRA does not apply retroact ively is sufficient t o res olve this appeal. In l ight of tha t, Ju dge Bress joins Part I of this diss ent, but not Part II.

58 R ATHA V. R UBICON R ESOURCES, LLC judgment order and hoisted it upon the back of the district court’s Rule 60(b) order currently under review. How, one may ask, does the majority justify this? It cites no authority but rather posits a theory of incorporation by reference. Although the idea of such a piggyback appeal may be attrac tive to some, it runs counter to well - establis hed law, and I cannot endorse it. In 1978, the Supreme Court he ld that “an appeal fr om denial of Rule 60(b) relief does not bring up the under lying judgment for review.” Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S. 257, 263 n.7 (1978). Understanding this, we have held that although “[w] e review an appeal from the denial of Rule 60(b) relief for an abuse of discretion in denying the motion; the appeal does not bring the entire underlying judgment up for re view. ” Harman v. Harper, 7 F.3d 1455, 1458 (9th Cir. 1993). I ndeed, every c irc uit in the country has recognized this rule. See Frew v. Young, 992 F.3d 391, 397 n.11 (5th Cir. 2021) (“[An] [a] ppeal from denial of Rule 60(b) relief does not bring up the under lying judgment for review” (quoting Browder, 434 U.S. at 263 n.7)); United States v. H assebrock, 21 F.4th 494, 497 (7th Cir. 2021) (“Indeed, a n appeal from the denial of a Rule 60(b) motion does not allow us to revi ew the underlying decision.”); Crawford v. United States, 611 F. Ap p’x 47, 48 (3d Cir. 2015) (“Our review is limited to the denial of Rule 60(b) relief and does not extend to the District Court’s underlying order dismissing Crawford’s habeas petition because ‘an appeal from the denial of Rule 60(b) relief does not bring up the underlying judgment for r eview.’” (quoting Browder, 434 U.S. at 263 n.7)); Perr y v. U nited Stat es, 558 F. App’x 1004, 1007 (Fed. Cir. 2014) (“Mr. Perry’s Rule 60(b)(6) Motion cannot reopen this court’s prior jurisdictional decision for review.” (citing Browder, 434

R ATHA V. R UBICON R ESOURCES, LLC 59 U.S. 263 n. 7)); Aikens v. Ingram, 652 F.3d 496, 501 (4th Cir. 2011) (“‘[A]n appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review.’” (quoting Brow der, 434 U.S. at 263 n.7)); United St ates v. Zorrilla - Echevarria, 671 F.3d 1, 9 (1st Cir. 2011) (“[A] ppeal from order denying request for relief from judgment does not resurrect appellants’ expired right to contest the merits of the underlying judgment, nor bring the judgment itself before us for rev iew.” (citat ion an d quotatio n omitted)); Chambers v. City of Fordyce, 508 F.3d 878, 881 (8th Cir. 2007) (“An appeal from the denial of a Rule 60(b) motion does not raise the underlying judgment for our review but only the question of whether the district cour t abused its discretion in ruling on the Rule 60(b) motion.” (citation and quotation omitted)); St. Fleur v. City of Fort Lau derdale, 149 F. App’x 849, 851 -52 (11th Cir. 2005) (“The scope of an appeal of a ruling on a Rule 60(b) motion is narrow: the a ppeal addresses only the propriety of the denial or grant of Rule 60(b) relie f and does not raise issues in the underlying judgment for review.” (citation modified)); Johnson v. Unknown Dellatifa, 357 F.3d 539, 543 (6th Cir. 2004) (“An appe al from an o rder denying a Rule 60(b) motion does not bring up for review the underlying judgment disposing of the complaint.”); Smith v. M allick, 10 F. App’x 1, 1 (D.C. Cir. 2001) (“[A]n appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review.” (quoting Browder, 434 U.S. at 263 n.7)); S.E.C. v. McNulty, 137 F.3d 732, 741 (2d Cir. 1998) (“The appe al from the denial of a motio n to vacate pursuant to Rule 60(b) brings up for revie w only the validity of that denial, not the merits of the underlying judgment itself.”); United States v. 31.63 Acres of Land, 840 F.2d 760, 761 (10th Cir. 1988) (“When a party appeals from an order denying a Rule 60(b) motion, the appeal ‘does not bring up

60 R ATHA V. R UBICON R ESOURCES, LLC the underlying judgment for r eview.’” (quoting Browder, 434 U.S. at 263 n.7)). Here, the majority has taken the unpre cedented step of departing from this long - standing rule, placing us at odds with every other circuit in the country and with the Supreme Court. Inste ad of limiting its revie w to the denial of Plaintiffs’ Rule 60(b) mo tion, the majority chose to review both the district court’s orde r denying Plaintiffs’ Rule 60(b) motion and the merits of the unde rlying judgment. This error cannot be overstated. Recognizing the gravity of its error, the majority attempts to r eframe its ana lysis, asse rting that “ t he district court denied Rule 60(b) relief based, in part, on reasons set forth more fully in its decision granting summary judgment.” Maj. Op at 3 3 n.9. While cl ever, thi s refram ing is a fallacy. Should a case arise where a district court truly relied upon a previous order, granting summary judgment or otherwise, to deny a party Rule 60(b) relief, this court should determine whether that previous o rder is suf ficiently intertwined w ith the Rule 60(b) denial to make it reviewable. But that is not this case. Here, t he dist rict court referen ced i ts previ ous summ ary judgment order only when discussing the first and fifth factors o f the P helps v. Al meida, 569 F.3d 1120, 1134 -40 (9th Cir. 2009) test used to analy ze Rule 60(b) relief. See Bynoe v. Ba ca, 966 F.3d 972, 980 - 86 (9th Cir. 202 0) (noting that the first factor is the nature of the intervening law, and the fifth f actor is the relat io nship b etween th e change i n law and the challenged judgment). Specifically, the dis trict co urt referenced its previous summary judgment order only to show that even if the ATRA was retroactive, Plaintiffs would not be entitled to relief because such retroactivity would only

R ATHA V. R UBICON R ESOURCES, LLC 61 affect one of the three independent bases on which the district co urt reste d its summary judgme nt order. Ratha v. Phatthana Seafood Co., No. CV 16 -4271- JFW, 2023 WL 2762044, at *4 (C.D. Cal. Mar. 3, 2023). This refe rence to the summary judgment order occurs once in a single paragraph of the district court’s Rule 60(b) order. 8 8 The dist rict c ourt’s s ingle refe rence to its previo us summary jud gment order was, in full: In this c ase, t he Court gr ante d sum mary j udgment on Plai ntiffs ’ TVPRA c laim t o Rubicon on th ree grounds: (1) the re was no e vidence demonstrat ing that Rubicon knowingly participated i n a human trafficki ng venture; (2) the re was no e vide nce that Rubicon knew or should have know n about P hatthana’s allege d human traffic king; an d (3) there was no evidence that Rubicon be nefitt ed from P hatthana’s allege d human traffic king. Inde ed, the Cou rt spec ifica lly concl uded that “Plaintif fs have f ailed to demonstr ate that Rubicon or Wales k new or shoul d have know n that human tr affic king existe d at Phatt hana’s S ongk hla factory.” Id. The reference was immediatel y followed by this analysis: Although t he cha nge to Sec tion 159 5(a) mig ht potentia lly apply to the third ground of the Court’s decisi on granting summa ry judgment, the Court a grees with Rubico n that the Court’s decisio n is fully supported by the first and second grounds and t he change to Sect ion 1595(a) does not appl y to or in an y way affec t t he first and secon d grounds of the Court’s decisi on. As a result, the C ourt c oncludes that bec aus e the chan ge to Secti on 1595(a) woul d not alt er t he Court’s decision in favor of Rubicon, the first and fi fth factors weigh heavil y agains t granti ng relief pursuant to Rule 60(b)(6). Id.

62 R ATHA V. R UBICON R ESOURCES, LLC Critically, the district court never adopted the re asoning of the summary judgment order as a basis for the deni al of Rule 60(b) relie f. In reviewing the fifth factor regarding t he relationship between the change in law and the challenged judgment, of course a di strict court w ill reference th e underly ing order related to the judgment. Simpl y refere ncing the underlying order, however, cannot be enough to pull t hat underlying judgment up for review on a Rule 60(b) appeal. But the majority’s decision h ere says tha t it can. Following this decision, it is hard to see how a district court could meaningfully apply the Phe lps factors without opening the door for appellate review of both the Rul e 60(b) order and the underlying judgment. We shoul d hav e treated thi s appeal like ev ery o ther appeal from a de nial of a Rule 60(b) motion and c onfined our review to the district court’s order on that motion. Had the majority done so, it w ould have come to the inevitable conclusion that the district court did not abuse its discretion. Here, the district court appropriately applied the Phelps factor s to find tha t Plaintiffs a re not entitled to relief from judgment. Indeed, the only error the majority identifies in the district court’s order denying Rule 60(b) r elief is that the ATRA was retroactive. But we know from our discussion above that th e ATRA is n ot, in fact, r etroact ive. Therefo re, the district court did not err in so finding. Because the district court did not err in finding that the ATRA is not retroactive, it did not abuse i ts discretion in denying Plaintiffs’ Rule 60(b) moti on. Our review should have ended there. But, even if th e ATRA was retro activ e, we cann ot say that the district court abused its discretion in denying Rule

R ATHA V. R UBICON R ESOURCES, LLC 63 60(b) relief. This is because, as noted above, t he district court’s order granting Rubicon’s motion for summary judgment rested on three indepe ndent and sufficient grounds, only one of which related to the change made by the ATRA. In other words, even if th e distri ct co urt ag reed that the ATRA applied to Plainti ffs’ claims, the underlying judgment would remain uncha nged. Indeed, the district court noted this in its ord er denying Rule 60(b) reli ef, stating that even if the AT RA was ret roactive “t he chang e to Section 1595(a) would not alter the Court’s decision in favor of Rubicon.” This determination supported the distric t court’s conclusion that the first and fifth Phelps factor s weigh ed against granting Rule 60(b) relief. That is precisely the kind of analysis a district court shoul d engage in when deciding a Rule 60(b) motion. The majority, however, cannot accept that the district court did not abuse its discre tion here, so it searches for error. Finding insufficient error in the district court’s Rule 60(b) order, the majority makes the e xtraordinary decision to review the underlying judgment, breaking a rule established by the Supreme Court over four decades ago, a nd departing from all twelve of our si ster circuits. It is hard t o make an error more striking tha n this. Ultimately, the district court did not abuse its discretio n in denying Plaintiff s’ Rule 60(b) motion and the majority’s holding otherwise is error. Because I cannot stand idly by while our court makes such errors, I respectfully dissent.