                    United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 98-2394
                                  ___________

Betty Ann Gross, formerly known as      *
Betty Ann Owen,                         *
                                        *
             Appellant,                 *
                                        *
       v.                               * Appeal from the United States
                                        * District Court for the District
Robert R. Weber; Sisseton School        * of South Dakota.
District No. 54-9, of Roberts County,   *
South Dakota, a public corporation,     *
                                        *
             Appellees.                 *
                                   ___________

                            Submitted: March 10, 1999

                                Filed: August 10, 1999
                                 ___________

Before BEAM and HEANEY, Circuit Judges, and GOLDBERG,1 Judge of the United
      States Court of International Trade.
                                    ___________

BEAM, Circuit Judge.




      1
       The Honorable Richard W. Goldberg, Judge of the United States Court of
International Trade, sitting by designation.
       Betty Ann Gross (Gross) appeals the district court's 2 dismissal of the Sisseton
School District (the School District) as a party in her action under Title IX, 20 U.S.C.
§ 1681, and the Violence Against Women Act (VAWA), 42 U.S.C. § 13981. The
district court found that Gross failed to state a claim based on events completed prior
to the passage of the laws, because neither law applies retroactively. Gross argues that
Title IX and the VAWA should apply retroactively, or in the alternative that her Title
IX claim is nevertheless viable because she "realized the existence of a cause of action
for the first time" in 1994–over twenty years after Title IX's enactment. We affirm.

I.    BACKGROUND

       This case comes before us on appeal from the district court's grant of a motion
to dismiss under Rule 12(b)(6) for failure to state a claim. On a motion to dismiss, we
review the district court's decision de novo, accepting all the factual allegations of the
complaint as true and construing them in the light most favorable to Gross. See
Springdale Educ. Ass'n v. Springdale Sch. Dist., 133 F.3d 649, 651 (8th Cir. 1998).

        Gross's complaint and proposed amended complaint recite the following facts:
Gross was subjected to sexual abuse at the hands of her school teacher, Robert R.
Weber (Weber), from approximately 1964 until 1966. She left the school in 1966. In
1972, Congress passed Title IX, prohibiting discrimination in education on the basis
of sex. "On July 8, 1994, [Gross] realized the existence of a cause of action for the
first time," while reading a newspaper article. Id. at 4. Two months later, the VAWA
was enacted to provide a cause of action for crimes of violence motivated by gender.3


      2
        The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
      3
          The VAWA provides that:

      A person (including a person who acts under color of any statute,

                                           -2-
Gross filed a lawsuit against Weber and the School District on June 27, 1997, claiming,
among other things, violation of Title IX. The School District filed a motion to dismiss,
arguing that Title IX cannot be applied retroactively. In the face of the motion to
dismiss, Gross sought to amend her complaint to add a cause of action under the
VAWA. The district court dismissed, concluding that neither Title IX nor the VAWA
apply retroactively.

II.    DISCUSSION

       Gross concedes that her VAWA claim can only be successful if the law is
applied retroactively. On the other hand, she argues that her Title IX claim is viable
either because of retroactive application of the statute or as a result of her recent
realization. We consider first the question of retroactive application.

      There is a "'traditional presumption against applying statutes affecting
substantive rights, liabilities, or duties to conduct arising before their enactment,' absent
an express statutory command to the contrary." Viacom Inc. v. Ingram Enters., Inc.,
141 F.3d 886, 888 (8th Cir. 1998) (quoting Landgraf v. USI Film Prods., 511 U.S. 244,
278 (1994)). However, in order for the presumption against retroactivity to apply, the
claim must require a "truly 'retrospective' application of a statute." Landgraf, 511 U.S.
at 279. For this, we ask whether the statute "'attaches new legal consequences to



       ordinance, regulation, custom, or usage of any State) who commits a
       crime of violence motivated by gender and thus deprives another of the
       right declared in subsection (b) of this section shall be liable to the party
       injured, in an action for the recovery of compensatory and punitive
       damages, injunctive and declaratory relief, and such other relief as a court
       may deem appropriate.

42 U.S.C. § 13981(c).


                                            -3-
events completed before its enactment.'" Martin v. Hadix, 119 S. Ct. 1998, 2006
(1999) (quoting Landgraf, 511 U.S. at 270). Thus, to be truly retrospective, the statute
must "impair rights a party possessed when he acted, increase a party's liability for past
conduct, or impose new duties with respect to transactions already completed."
Landgraf, 511 U.S. at 280.

       The VAWA contains no "clear congressional intent" to apply its provisions
retroactively. Maitland v. University of Minn., 43 F.3d 357, 362 (8th Cir. 1994).
However, Gross argues that application of the VAWA to the events of thirty years ago
is not truly retrospective since the alleged sexual abuse would have constituted "a
felony under state or federal law." She contends that the statute does not attach new
legal consequences to the events and therefore the presumption against retroactivity
should not apply. We disagree. The VAWA creates a federal cause of action, based
on violence motivated by gender, as opposed to simply violence, with a broad range
of available relief–including punitive damages. At the very least, retroactive
application would "increase a party's liability for past conduct," Landgraf, 511 U.S. at
280, placing the VAWA within the ambit of the presumption against retroactivity. Cf.
Doe v. Abbott Lab., 892 F. Supp. 811, 814 (E.D. La. 1995) (concluding the VAWA
cannot be applied retroactively since it impacts on "private parties' planning and
constitutes an important new legal burden").

       There is also no clear expression of congressional intent to apply Title IX
retroactively. Nevertheless, Gross again argues that the presumption against
retroactivity should not apply. She contends that her claim does not require a truly
retrospective application of Title IX since a Title IX type of claim and remedy has
always been available. We disagree. In Gebser v. Lago Vista Indep. Sch. Dist., 118
S. Ct. 1989, 1997 (1998), the Supreme Court found that "[w]hen Title IX was enacted
in 1972, the principal civil rights statutes containing an express right of action did not
provide for recovery of monetary damages at all, instead allowing only injunctive and


                                           -4-
equitable relief."4 This clearly indicates that Title IX attached "'new legal consequences
to events completed before its enactment.'" Maitland, 43 F.3d at 362 (quoting
Landgraf, 511 U.S. at 270).

        Furthermore, notice and "fairness [are] important in considering retroactivity
issues." Viacom, 141 F.3d at 889; see also Landgraf, 511 U.S. at 270 (finding that for
retroactivity questions, "familiar considerations of fair notice, reasonable reliance, and
settled expectations offer sound guidance"). Concerns of notice and fairness are
particularly relevant for Title IX, which was enacted pursuant to the Spending Clause.
See Davis v. Monroe County Bd. of Educ., 119 S. Ct. 1661, 1669 (1999). Title IX is
set in a contractual framework whereby educational institutions agree to the condition
not to discriminate on the basis of sex in return for federal funding. See Gebser, 118
S. Ct. at 1997. As noted, Title IX provides no notice that educational institutions will
be subject to liability for prior events. It would be unfair to impose a greater duty than
that which the educational institutions agreed to assume. Cf. Martin, 119 S. Ct. at 2007
(finding that retroactive application would "upset the reasonable expectations of the
parties").

       Gross argues in the alternative that retroactive application of Title IX is not
necessary in her case because she did not realize "that she had been damaged" until
July 8, 1994.5 Appellant's Brief at 18. Aside from the fact that this is not what the

      4
       This is the relevant comparison–as to whether the statute attaches new legal
consequences to the facts–not whether the facts would have given rise to some possible
cause of action based on some possible theory.
      5
          Gross relies on the following provision of state law:

      Any civil action based on intentional conduct brought by any person for
      recovery of damages for injury suffered as a result of childhood sexual
      abuse shall be commenced within three years of the act alleged to have
      caused the injury or condition, or three years of the time the victim

                                            -5-
complaint alleges–the complaint alleges she "realized the existence of a cause of action
for the first time"–the argument fails.

       Gross's argument is legally insufficient because all alleged discrimination was
completed well before the statute was passed. Delayed realization of damage or of the
existence of a cause of action cannot create a cause of action which did not exist at the
time the events occurred and which is clearly not intended to be applied retroactively.
She could not have brought this action at the time the events occurred. Gross's
interpretation would defeat congressional intent and put statutory interpretation,
particularly that of retroactivity, into a tailspin producing bizarre results.

III.   CONCLUSION

       For the foregoing reasons, we affirm the decision of the district court.

       A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




       discovered or reasonably should have discovered that the injury or
       condition was caused by the act, whichever period expires later.

S.D. Codified Laws § 26-10-25. But see Egerdahl v. Hibbing Community College, 72
F.3d 615, 617-18 (8th Cir. 1995) (finding the applicable statute of limitations for Title
IX to be the one used for section 1983 actions).

                                          -6-
