Bodine v. Graco Inc. ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAYBLE C. BODINE, 
Plaintiff-Appellant, No. 06-16271
v.
 D.C. No.
CV-05-00434-BPV
GRACO, INC.; DAN MARSHALL; JANE
DOE MARSHALL, OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Bernardo P. Velasco, Magistrate Judge, Presiding
Argued and Submitted
March 6, 2008—Arizona State University
Tempe, Arizona
Filed July 24, 2008
Before: Michael Daly Hawkins, Sidney R. Thomas, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Hawkins
9193
BODINE v. GRACO, INC. 9195
COUNSEL
Richard J. Rubin (briefed and presented oral argument), Santa
Fe, New Mexico, and Veronika Fabian (appeared at oral argu-
ment), Tempe, Arizona, for the plaintiff-appellant.
John J. Kastner (briefed) and Rebecca Parker-Perry (presented
oral argument), Kimble, Nelson, Audilett & Kastner, Tucson,
Arizona, for the defendants-appellees.
9196 BODINE v. GRACO, INC.
OPINION
HAWKINS, Circuit Judge:
Does the Motor Vehicle Information and Cost Savings Act
(“the Odometer Act” or “the Act”), 49 U.S.C.
§§ 32701-32711, and its implementing regulations, 49 C.F.R.
pt. 580, allow a private right of action where the fraud relates
to something other than the vehicle’s mileage—in this case,
its accident history?
Two of our sister circuits have split on this issue. Owens v.
Samkle Auto. Inc., 425 F.3d 1318, 1320 (11th Cir. 2005) (per
curiam) (holding that “an allegation of intent to defraud in
connection with an Odometer Act violation sufficiently states
a claim,” even when the intent to defraud does not relate to
mileage); Ioffe v. Skokie Motor Sales, Inc., 414 F.3d 708, 709
(7th Cir. 2005) (“[A]n Odometer Act claim that is brought by
a private party and is based on a violation of [the implement-
ing regulations] requires proof that the vehicle’s transferor
intended to defraud a transferee with respect to mileage.”),
cert. denied, 546 U.S. 1214 (2006).
Finding the reasoning in Ioffe persuasive, we conclude that
the private right of action under the Odometer Act is limited
to allegations of fraud relating to a vehicle’s mileage.
FACTUAL BACKGROUND AND PROCEDURAL
STATUS
Mayble C. Bodine (“Bodine”), an elderly grandmother in
the market for a truck for her grandson, purchased a used
2001 Dodge pick-up for $19,716.80 from Graco, Inc., and its
owners (“Graco”). In the course of closing the transaction,
Graco provided Bodine with an accurate odometer (mileage)
statement but did not provide a copy of the vehicle’s title.
Despite Graco’s assurances that the vehicle was in good con-
dition, the title would have revealed it was anything but. In
BODINE v. GRACO, INC. 9197
fact, the vehicle’s title had been branded “Restored Salvage”
in accordance with Arizona law.1 Bodine claims that Graco
deliberately withheld the title in order to conceal that the vehi-
cle had been severely damaged in an earlier collision. Had
Graco made the mileage disclosure on the title, Bodine would
have examined the title, noticed that it was branded “Restored
Salvage,” and would not have purchased the truck.
Bodine discovered the truck’s branding after she subse-
quently received a copy of the vehicle registration. She also
discovered the truck had mechanical problems rendering it
dangerous to drive. Bodine asked Graco to take the truck
back. Graco refused and denied any knowledge of its branded
status, even though Graco in fact knew about that status when
it sold Bodine the truck.
After Bodine filed her complaint in district court, the par-
ties consented to have a magistrate judge hear the matter.
Graco then filed a motion to dismiss for lack of jurisdiction
under Rule 12(b)(1) of Civil Procedure, and the magistrate
judge granted the motion.
Assuming, for the moment, that the court correctly held
that a successful Odometer Act claim must include an allega-
tion that the defendant intended to defraud as to mileage, the
court nonetheless erred by treating this as a jurisdictional
requirement, and not as an ingredient of the claim for relief.
The Supreme Court recently explained that “when Con-
gress does not rank a statutory limitation on coverage as juris-
dictional, courts should treat the restriction as
nonjurisdictional in character.” Arbaugh v. Y & H Corp., 546
U.S. 500, 516 (2006). The intent-to-defraud language is found
in 49 U.S.C. § 32710(a), which is captioned “Violation and
amount of damages.” The jurisdiction-conferring language is
found in a neighboring subsection, § 32710(b), which is cap-
1
See Ariz. Rev. Stat. Ann. §§ 28-2091, -2095(A).
9198 BODINE v. GRACO, INC.
tioned “Civil actions.” Because § 32710(a) “does not speak in
jurisdictional terms or refer in any way to the jurisdiction of
the district courts,” it was improper to dismiss this case on
jurisdictional grounds.2 Arbaugh, 546 U.S. at 515 (internal
quotation marks omitted).
Although Graco incorrectly filed a motion to dismiss for
lack of jurisdiction, its more general argument regarding the
“with intent to defraud” provision is not necessarily flawed.
We have the discretion to proceed with this appeal as if the
district court granted a Rule 12(b)(6) motion, and we choose
to do so here. See Moore v. United Kingdom, 384 F.3d 1079,
1090 (9th Cir. 2004); Capital Tracing, Inc. v. United States,
63 F.3d 859, 861 n.3 (9th Cir. 1995). We have, therefore,
drawn the facts of this case from the well-pleaded allegations
of the complaint, which we accept as true. Broam v. Bogan,
320 F.3d 1023, 1026 n.2 (9th Cir. 2003).
STANDARD OF REVIEW
We review a Rule 12(b)(6) dismissal de novo. Outdoor
Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899
(9th Cir. 2007). While we may affirm on any ground sup-
ported by the record, McKesson HBOC, Inc. v. N.Y. State
Common Ret. Fund, Inc., 339 F.3d 1087, 1090 (9th Cir.
2003), we are to sustain a dismissal only if it is clear from the
complaint “that no relief could be granted under any set of
facts that could be proved consistent with the allegations.”
Synagogue v. United States, 482 F.3d 1058, 1060 (9th Cir.
2007) (internal quotation marks omitted).
2
Additionally, we note that Bodine’s claim is not “immaterial and made
solely for the purpose of obtaining jurisdiction,” nor is it “wholly insub-
stantial and frivolous.” Bell v. Hood, 327 U.S. 678, 682-83 (1946). If it
were, the district court’s decision to dismiss under Rule 12(b)(1) might
have been proper. See Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp.,
594 F.2d 730, 733-35 (9th Cir. 1979).
BODINE v. GRACO, INC. 9199
DISCUSSION
Bodine’s theory is that Graco was obligated to provide her
with a title containing an accurate description of the vehicle’s
mileage, and that Graco failed in that obligation when it delib-
erately withheld the title in an effort to conceal the vehicle’s
collision history. Recognizing that Bodine’s theory is exclu-
sively concerned with the vehicle’s title, and is in no way
related to the representations about the truck’s odometer, we
turn to the language of the statute. See Knight v. Comm’r, 128
S. Ct. 782, 787 (2008).
I. The Odometer Act
The statutory scheme begins with a list of Congress’s find-
ings and purposes. 49 U.S.C. § 32701.
Congress finds that—
(1) buyers of motor vehicles rely heavily on the
odometer reading as an index of the condition and
value of a vehicle;
(2) buyers are entitled to rely on the odometer read-
ing as an accurate indication of the mileage of the
vehicle;
(3) an accurate indication of the mileage assists a
buyer in deciding on the safety and reliability of the
vehicle; and
(4) motor vehicles move in, or affect, interstate and
foreign commerce.
Id. § 32701(a). The Odometer Act’s purposes are “(1) to pro-
hibit tampering with motor vehicle odometers; and (2) to pro-
vide safeguards to protect purchasers in the sale of motor
vehicles with altered or reset odometers.” Id. § 32701(b).
9200 BODINE v. GRACO, INC.
[1] Congress effectuated these purposes by outlawing
actions that would cause discrepancies between a vehicle’s
actual mileage and its odometer reading. The Act prohibits
odometer3 tampering with intent “to change the mileage regis-
tered by the odometer.” Id. § 32703(2). It also forbids adver-
tising for sale, selling, using, installing, or having installed “a
device that makes an odometer of a motor vehicle register a
mileage different from the mileage the vehicle was driven, as
registered by the odometer within the designed tolerance of
the manufacturer of the odometer.” Id. § 32703(1). It is also
unlawful to, “with intent to defraud, operate a motor vehicle
on a street, road, or highway if the person knows that the
odometer of the vehicle is disconnected or not operating.” Id.
§ 32703(3).
Regulating odometer tampering is Congress’s first method
of achieving the Act’s goals; the second method seeks to
empower consumers by providing them with accurate infor-
mation at the time of a vehicle transfer.4 By regulation of the
3
“Odometer” is defined as “an instrument for measuring and recording
the distance a motor vehicle is driven, but does not include an auxiliary
instrument designed to be reset by the operator of the vehicle to record
mileage of a trip.” 49 U.S.C. § 32702(5).
4
Section 32705(a) provides, in part:
(1) Disclosure requirements.—Under regulations prescribed by
the Secretary of Transportation that include the way in which
information is disclosed and retained under this section, a person
transferring ownership of a motor vehicle shall give the trans-
feree the following written disclosure:
(A) Disclosure of the cumulative mileage registered on
the odometer.
(B) Disclosure that the actual mileage is unknown, if the
transferor knows that the odometer reading is differ-
ent from the number of miles the vehicle has actu-
ally traveled.
(2) A person transferring ownership of a motor vehicle may not
violate a regulation prescribed under this section or give a false
statement to the transferee in making the disclosure required by
such a regulation.
(3) A person acquiring a motor vehicle for resale may not
accept a written disclosure under this section unless it is com-
plete.
BODINE v. GRACO, INC. 9201
National Highway Traffic Safety Administration,5 “[i]n con-
nection with the transfer of ownership of a motor vehicle,
each transferor shall disclose the mileage to the transferee in
writing on the title . . . .” 49 C.F.R. § 580.5(c) (emphasis
added). “Title” is statutorily defined as “the certificate of title
or other document issued by the State indicating ownership.”
49 U.S.C. § 32702(7); see also 49 C.F.R. § 580.3. According
to Bodine, Graco “did not make the mileage disclosure on the
title as required by 49 C.F.R. § 580.5.”
The Odometer Act provides different methods of enforce-
ment. The Secretary of Transportation (“Secretary”) can
impose a civil penalty of up to $2,000 per violation of the Act
or its regulations, and the Attorney General is tasked with
enforcing such penalties in a civil action. 49 U.S.C.
§ 32709(a). The Attorney General or the chief law enforce-
ment officer of a state can bring suit to enjoin violations of the
Act and its regulations. Id. § 32709(c), (d)(1)(A). The Act
provides a criminal penalty applicable to “[a] person that
knowingly and willfully violates this chapter or a regulation
prescribed . . . under this chapter.” Id. § 32709(b).
[2] In addition to these public means of enforcement, the
Act creates a private cause of action. The private cause of
action has an independent liability provision: “A person that
violates this chapter or a regulation prescribed or order issued
under this chapter, with intent to defraud, is liable for 3 times
the actual damages or $1,500, whichever is greater.” 49
U.S.C. § 32710(a) (emphasis added).6 A private person that
5
The Secretary of Transportation is delegated authority to “prescribe[ ]
. . . the way in which information is disclosed and retained” under the
Odometer Act, 49 U.S.C. § 32705(a)(1), and the Secretary further dele-
gates that authority to the National Highway Traffic Safety Administrator,
49 C.F.R. § 1.50(f).
6
The chief law enforcement officer of a state is also empowered to bring
an action to recover for a violation of § 32710. 49 U.S.C.
§ 32709(d)(1)(B).
9202 BODINE v. GRACO, INC.
prevails in a civil action is entitled to attorney’s fees and
costs. Id. § 32710(b).
This last penalty is at issue here. Specifically, we must
decide what Congress meant by “with intent to defraud” in
§ 32710(a).
II. Ioffe and Owens
As noted above, the Seventh and Eleventh Circuits have
addressed the meaning of “with intent to defraud” in
§ 32710(a). See Owens v. Samkle Auto. Inc., 425 F.3d 1318(11th Cir. 2005) (per curiam); Ioffe v. Skokie Motor Sales,
Inc., 414 F.3d 708 (7th Cir. 2005). Although they agree that
the plain language of the statute resolves the dispute, they
reach directly opposite conclusions.
Ioffe, nearly identical to our facts, was the first to tackle the
issue. Ioffe purchased a used vehicle that had a certificate of
title identifying the vehicle as “rebuilt.” At the time of pur-
chase, however, the dealer did not inform Ioffe that the car
had been rebuilt or show him the car’s title. The dealer had,
however, given him an accurate odometer disclosure state-
ment listing the same mileage reading as appeared on the title.
While not disputing the accuracy of the mileage statement,
Ioffe asserted that the dealer failed to produce the vehicle’s
title in an effort to defraud him as to the title’s “rebuilt” desig-
nation, and he brought claim under the Odometer Act and 49
C.F.R. § 580.5(c). 414 F.3d at 709-11.
The Seventh Circuit rejected this theory, concluding that
“[t]he Odometer Act creates a private right of action for viola-
tions of 49 C.F.R. § 580.5(c) only where a transferor chose
not to disclose a vehicle’s mileage to the transferee in writing
on the title with intent to defraud as to the vehicle’s mileage.”
Id. at 715.
Two and a half months after Ioffe, the Eleventh Circuit
decided Owens. Owens, like Ioffe and Bodine, purchased a
BODINE v. GRACO, INC. 9203
used car without seeing its title. She did sign a number of
forms—including a Power of Attorney, an odometer disclo-
sure statement, and an application for certificate of title—but
because the car’s mileage was not disclosed to her on the title,
she alleged a violation of 49 C.F.R. § 580.5. Her theory was
not, however, that the defendant intended to defraud her with
respect to the vehicle’s mileage. Rather, she alleged that the
dealership-defendant used the transfer forms in lieu of a title
“to conceal what the title would have revealed—that the car
was previously a short-term rental vehicle owned by Hertz.”
425 F.3d at 1320.
The Eleventh Circuit held that “the complaint alleged all of
the necessary elements required for a private cause of action
pursuant to this statute: (1) that the defendant violated the Act
or its regulations, (2) with intent to defraud.” Id. at 1321. It
rejected the argument “that the fraud must be ‘with respect to
the vehicle’s mileage’ ” because “[n]o language limits the
meaning of the clause ‘with intent to defraud.’ ” Id.III. Interpreting the Odometer Act
[3] The text and purpose of the Odometer Act lead us to
believe that the Seventh Circuit has the better of the two posi-
tions. To survive a Rule 12(b)(6) motion to dismiss, a plaintiff
suing under 49 U.S.C. § 32710 must allege that the defendant
violated the Odometer Act with intent to defraud as to mile-
age.
Bodine’s textual argument mirrors the thinking of the
Owens court: Because “with intent to defraud” is not immedi-
ately preceded or followed by any explicit language limiting
the provision to odometer fraud, the only natural reading,
Bodine argues, is that no such limit exists.
When there is “no statutory definition or definitive clue,”
a phrase’s meaning “has to turn on the language as we nor-
mally speak it.” Watson v. United States, 128 S. Ct. 579, 583
9204 BODINE v. GRACO, INC.
(2007). In ordinary language, “with intent to defraud” is not
intrinsically limited, especially not to odometer fraud. When
§ 32710 is studied in isolation, then, Bodine’s reading is not
obviously wrong.
It is, however, “our duty to construe statutes, not isolated
provisions.” Gustafson v. Alloyd Co., 513 U.S. 561, 568
(1995). “[T]he meaning of statutory language, plain or not,
depends on context.” Holloway v. United States, 526 U.S. 1,
7 (1999) (internal quotation marks omitted).
[4] With the Odometer Act, we have a “source of a reason-
able inference about what Congress understood when writing”
§ 32710. Watson, 128 S. Ct. at 583. Helpfully, Congress made
clear its purposes: to prohibit odometer tampering and to pro-
tect consumers against the sale of vehicles “with altered or
reset odometers.” 49 U.S.C. § 32701(b). Every part of the
statutory scheme speaks specifically of odometer fraud; there
is not a single statutory phrase that suggests Congress wished
to reach additional types of fraud. See id. § 32703 (targeting
physical odometer tampering); id. § 32704 (providing specific
procedures for repairing and replacing odometers); id.
§ 32705 (requiring disclosure only of transferred vehicle’s
cumulative mileage).
The effect of all of these express references to odometer
fraud is to limit the meaning of “with intent to defraud.” See
Gutierrez v. Ada, 528 U.S. 250, 254-55 (2000) (understanding
the statutory phrase “any election” to mean “an election for
Governor and Lieutenant Governor” because of numerous
other references to Governor and Lieutenant Governor). Even
though § 32710(a) does not contain any mention of odometer
fraud, it incorporates the conduct-regulating provisions of the
Act by referring to “this chapter or a regulation prescribed or
order issued under this chapter.”
In Ioffe, the court usefully replaced this shorthand with the
language of 49 C.F.R. § 580.5(c): “ ‘A person that [does not
BODINE v. GRACO, INC. 9205
disclose the mileage to the transferee in writing on the title],
with intent to defraud, is liable.’ ” 414 F.3d at 712 (alteration
in original). Reviewing this language, the court reasoned:
The use of “with” in “with intent to defraud” indi-
cates a link between the violative conduct and the
intent requirement. The conduct and the fraudulent
intent are not two independent elements such that
any contemporaneous fraud will do. Rather, there is
a prohibited act—not disclosing the mileage to the
transferee in writing on the title—which is modified
by the adverbial phrase “with intent to defraud.”
Thus, the private right of action covers prohibited
acts that are committed with fraudulent intent and
excludes cases where some fraudulent act happens to
coincide with a violation of a regulation but the vio-
lative act is done for reasons other than to perpetrate
a fraud.
Id.This reasoning is sound. Although in other statutes “with
intent to defraud” might be read capaciously, in § 32710(a) it
is limited by the statutorily-defined purposes of the Odometer
Act. See Reves v. Ernst & Young, 494 U.S. 56, 63 (1990)
(“[T]he [statutory] phrase ‘any note’ should not be interpreted
to mean literally ‘any note,’ but must be understood against
the backdrop of what Congress was attempting to accomplish
in enacting the Securities Acts.”). The substantive provisions
of the Act are confined to odometer fraud, even though we
can safely assume that Congress does not condone other types
of fraud in vehicle transfers. In creating a private right of
action, Congress added a further limitation: only violators
who act with intent to defraud will be subject to special dam-
ages provisions. Bodine offers no cogent reason why Con-
gress would fastidiously restrict the substantive reach of the
Act to odometer fraud,7 while making § 32710(a) liability turn
on intent to commit any type of fraud.
7
For example, § 32705(a)(2) states: “A person transferring ownership of
a motor vehicle may not violate a regulation prescribed under this section
9206 BODINE v. GRACO, INC.
A broader reading of “with intent to defraud” might lead to
results inconsistent with the Act’s purposes. Because a “term
should be construed, if possible, to give it a consistent mean-
ing throughout the [statute],” Gustafson, 513 U.S. at 568, the
“with intent to defraud” language of § 32710(a) would pre-
sumptively control the interpretation of the same language in
§ 32703(3). As mentioned earlier, that section states that a
“person may not . . . with intent to defraud, operate a motor
vehicle . . . if the person knows that the odometer of the vehi-
cle is disconnected or not operating.” On Bodine’s reading, an
individual would be liable under the Odometer Act if he
fraudulently sold merchandise while happening to drive a
vehicle with a broken odometer. Even though “[n]o language
limits the meaning of the clause ‘with intent to defraud,’ ”
Owens, 425 F.3d at 1321, Congress surely did not intend that
§ 32703(3) be read this way.
[5] Bodine argues that a vehicle’s restored salvage status
provides a “direct nexus” with its odometer reading. Because
rebuilders use different parts from different vehicles when
restoring a salvaged vehicle, they face choices about how to
disclose the rebuilt vehicle’s mileage. If a major part is
replaced, the rebuilder must decide whether to list the mileage
as it read prior to the replacement, or to link it instead to the
mileage of the replacement part. These situations allow
opportunistic rebuilders to tamper with an odometer reading
to the detriment of a future consumer.
or give a false statement to the transferee in making the disclosure
required by such a regulation.” (Emphasis added.) Because the only dis-
closures required by the section pertain to a transferred vehicle’s cumula-
tive mileage, the statute only proscribes false statements made about
mileage. Had Congress wanted to err on the side of protecting consumers
beyond simple odometer fraud, it could have prohibited “a false statement
to the transferee with respect to the transferred vehicle.” Consistent with
the Act’s narrow purposes, however, the prohibition is limited to false
statements pertaining to mileage disclosures, even though this excludes
from federal regulation countless other types of fraud.
BODINE v. GRACO, INC. 9207
If this is correct, then Bodine can satisfy the pleading
requirements of the Odometer Act by alleging that Graco
withheld the title of the restored salvage truck with the intent
to defraud her as to the truck’s mileage. If Bodine could prove
that the mileage was unlawfully altered in the rebuilding pro-
cess, and that Graco withheld the title in an effort to conceal
this fact, then Bodine would, we assume, have a valid Odom-
eter Act claim. But Bodine has alleged none of this in her
complaint, so there is no reason for this court to consider a
nexus that might be present in other cases involving restored
salvage vehicles. See Ioffe, 414 F.3d at 714-15 (rejecting same
nexus argument).
[6] In support of its holding, the Owens court noted that its
reading of § 32710(a) was “also consistent with the general
principle that the Odometer Act is remedial legislation that
should be broadly construed to effectuate its purpose.” 425
F.3d at 1322 (internal quotation marks omitted). The court
stressed the importance of the title and disclosure require-
ments, which were intended “to provide consumers with
transparent information about a vehicle’s background, to ease
investigation and prosecution of violators, and to prevent
would-be violators from taking advantage of titling and regis-
tration loopholes to perpetrate odometer fraud.” Id. at
1322-23. Reviewing the various requirements of the Act,
Owens explained that
the success of the complex remedial scheme Con-
gress has created depends on compliance with a mul-
titude of interdependent and seemingly “technical”
provisions . . . . Violations of these “technical” regu-
lations can defeat the entire remedial scheme—even
if they are not committed with the intent to defraud
with respect to the vehicle’s mileage—by creating
gaps in the vehicle’s “paper trail” that: (1) thwart
investigation of future violations; and (2) make it
difficult for future purchasers of a vehicle to spot
9208 BODINE v. GRACO, INC.
odometer fraud by preventing them from accurately
assessing the vehicle’s ownership history.
Id. at 1324.
These observations may be accurate, but the analysis
proves too much. Emphasizing the importance of the title in
no way sheds light on the culpability requirement in
§ 32710(a). There is no dispute that the title disclosure rule of
§ 580.5(c) is an important means of combating odometer
fraud. As a corollary, it follows that any violation of that sec-
tion threatens the remedial scheme, whether done with or
without an intent to commit any type of fraud. Nonetheless,
§ 32710(a) only covers violations committed “with intent to
defraud.” Clearly, Congress did not want vehicle transferors
to be liable under § 32710(a) when they acted without the req-
uisite intent, even if their violations threatened the Act’s
remedial scheme. Therefore, we should not construe
§ 32710(a) so as to create as much liability as possible.
Rather, we must faithfully apply the section’s limit on liabil-
ity, even if it undermines the statute’s remedial purposes.
If the statute’s design was in fact critically weakened by
our interpretation of § 32710(a), there might be reason to
think Congress meant “with intent to defraud” in the broadest
sense. As Ioffe noted, though, the Act “creates a comprehen-
sive enforcement scheme of which private civil liability is
only one part.” 414 F.3d at 714. Violators are strictly liable
for civil penalties up to $2,000 per violation, and the Attorney
General or a state can seek an injunction for violations com-
mitted without any intent. 49 U.S.C. § 32709(a), (c), (d).
There are also criminal penalties for “knowingly and willful-
ly” violating the Act or its regulations. Id. § 32709(b).
The Owens court believed that under-enforcement of the
public remedies necessitated a broader reading of the private
cause of action. 425 F.3d at 1324-25. Congress was aware of
the under-enforcement problem, but it did not respond by
BODINE v. GRACO, INC. 9209
amending the private right of action. Instead, Congress acted
on the recommendation of the National Highway Traffic
Safety Administration, which suggested that “the most effec-
tive way to combat [odometer] fraud is to increase the maxi-
mum sentence to three years, converting odometer tampering
into a felony. This would make violations much more likely
to be prosecuted and would be more threatening to violators.”
S. Rep. No. 99-47, at 3 (1985). Accordingly, in a 1986
amendment to the Odometer Act, Congress increased the civil
and criminal penalties, but did not alter the private right of
action. See Truth in Mileage Act of 1986, Pub. L. No. 99-579,
§ 3, 100 Stat. 3309, 3311.8
There is a plausible reason why Congress would want to
keep the Odometer Act narrow: the availability of state-law
remedies. The Act’s legislative history explains that states’
efforts to regulate odometer tampering were often frustrated
because of a lack of interstate uniformity in regulation.9 The
8
Bodine cites the 1986 amendment, observing that it closed loopholes
in the Odometer Act by enhancing the role of the vehicle title. See Truth
in Mileage Act of 1986, § 2, 100 Stat. at 3309-10. Bodine is correct that
“[t]he central purpose of [the amendment] had been to make the title docu-
ment the sole vehicle for odometer disclosure.” Odometer Disclosure
Requirements, 56 Fed. Reg. 47681, 46784 (Sept. 20, 1991). But the statu-
tory changes do not support Bodine’s reading of “with intent to defraud.”
“Although these amendments elevate the importance of the certificate of
title in the mileage disclosure process, they do not purport to alter the
scope of the private right of action created by § 32710.” Ioffe, 414 F.3d
at 714. Instead, as noted above, “Congress enhanced the civil and criminal
penalties that may be imposed by the federal government, but did not
amend the section governing private claims.” Id.9
See, e.g., S. Rep. No. 99-47, at 1-2 (1985) (“Despite the positive efforts
to combat odometer fraud in the majority of States, it remains very easy
for a person to mail a certificate of title with high mileage to another per-
son in one of the States not requiring the odometer mileage to be shown
on titles and to obtain in return a new title without any odometer informa-
tion.”); S. Rep. No. 92-413 (1971), as reprinted in 1972 U.S.C.C.A.N.
3960, 3962 (“Odometers are turned back in States without odometer laws
and then cars are marketed at inflated values in States with such laws.
Thus, State odometer laws are easily circumvented and people in a State
with such a law suffer because of this practice.”).
9210 BODINE v. GRACO, INC.
Act addressed this singular problem with specific measures
that exclusively target odometer tampering. When the Act
was first passed in 1972, Congress was likely aware of other
types of fraud in the vehicle market, including collision-
history fraud. Presumably, Congress left those areas of fraud
unregulated because it believed that state regulation and state-
law remedies were adequate. Cf. 49 U.S.C. § 32711 (indicat-
ing that state law is preempted only if it is “inconsistent” with
the Act; otherwise, the Act does not “exempt a person from
complying with that law”). It is not this court’s role to second
guess that judgment, and we cannot expand § 32710(a) to
cover other forms of fraud, no matter how pernicious.
At the end of the day, we find the Seventh Circuit’s reason-
ing more consistent with the language and purpose of what is,
after all, commonly referred to as the Odometer Act. If Con-
gress had intended the Act to cover a wide range of activities
related to the transfer of vehicle titles, it could have easily
said so. We do not for a moment condone activities such as
those Bodine alleges here. The doors of the Arizona courts are
open to pursue her claims.10 See, e.g., Ariz. Rev. Stat. § 44-
1522; Madisons Chevrolet, Inc. v. Donald, 505 P.2d 1039,
1041-43 (Ariz. 1973) (holding that defendant car dealer was
liable for both fraudulent concealment and fraudulent misrep-
resentation when it represented that car was “new” when it
had actually been in a prior accident, and upholding punitive
damages award because defendant’s failure “to inform the
plaintiff that the automobile had been previously wrecked was
a ‘reckless indifference’ to the rights and safety of” the plain-
tiff). Our doors are open only as wide as Congress permits
and they are open here only wide enough for claims that
directly relate to odometer fraud.
AFFIRMED.
10
We assume that the statutes of limitations on Bodine’s state-law
claims are tolled during the pendency of this matter. See 28 U.S.C.
§ 1367(d).