                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 95-3666
                                  ___________
Anne C. Trostel; Harry A. Holman,      *
Jr.; H. L. Van Metre; Charles H.       *
Van Metre; Dorothy Hurley;             *
Terrance M. Hurley, Cmdr.; Carol       *
Sabey, Mrs.;                           *
                                       *
           Plaintiffs -                *
           Appellants                  *
                                       *
Norwest Bank Fort Collins, N.A.        *
                                       *   Appeal from the United States
           Trustee - Appellant         *   District Court for the Southern
                                       *   District of Iowa.
v.                                     *
                                       *
American Life & Casualty               *
Insurance Company;                     *
                                       *
           Defendant - Appellee        *
                                       *
Hawkeye Bank of Des Moines             *
                                       *
           Movant                      *
                                       *

                                 ___________

                      Submitted: November 18, 1997
                         Filed: January 15, 1998
                               ___________

Before BOWMAN, BEAM, and MURPHY, Circuit Judges.
                               ___________

MURPHY, Circuit Judge.

      This case involving a gold clause in a real estate lease comes before
us on remand from the Supreme Court for further consideration in light of
Congressional action subsequent to our decision of August 14, 1996.
Trostel v. American Life & Cas. Ins. Co., 92 F.3d 736 (8th Cir. 1996),
vacated, 117 S.Ct. 939 (1997). We were asked to consider the impact of a
statutory amendment which went into effect on September 30, 1996, but
before oral argument Congress acted again to eliminate the language added
in 1996. The parties have now briefed and argued their conflicting views
about the possible impact of these legislative changes on this litigation.


      The real estate lease covers a commercial building in downtown Des
Moines, Iowa. It was originally entered into in 1917 to run for ninety
nine years. The annual rent for the final forty five years was set at
$18,000, and the lessor was given the option to demand payment in gold coin
as a protection against future inflation. See Trostel, 92 F.3d at 738.
During the lease period public policy changed in regard to gold. Congress
declared in 1933 that gold clauses were against public policy and were
therefore dischargeable dollar for dollar in United States currency. Joint
Resolution of June 5, 1933, 48 Stat. 112, 113 (1933) (formerly codified at
31 U.S.C. § 463) (codified as amended at 31 U.S.C. § 5118(d)(2)). More
than forty years later the policy changed once more. On October 28, 1977,
Congress amended the underlying statute to make gold clauses enforceable
again if they were part of an obligation issued after October 27, 1977.
Act of October 28, 1977, Pub. L. No. 95-147, § 4(c), 91 Stat. 1227, 1229
(codified as amended at 31 U.S.C. § 5118(d)(2)).

      The lease was ultimately assigned in 1990 to American Life and
Casualty Insurance Company (American Life), and in 1993 the lessors
demanded payment of the rental obligation in gold coin. American Life
refused, and the lessors sought a




                                    -2-
declaratory judgment to enforce their demand. The district court granted
summary judgment to American Life. We reversed after determining that the
gold clause was enforceable under the 1977 statutory amendment because in
the 1990 assignment American Life had assumed all obligations of the
original lease. Trostel, 92 F.3d at 740-41.

      Shortly thereafter Congress amended the underlying statute by adding
a provision to the otherwise unrelated Economic Growth and Regulatory
Paperwork Reduction Act of 1996. With the new amendment the statute read
in pertinent part:

      An obligation issued containing a gold clause or governed by a
      gold clause is discharged on payment (dollar for dollar) in
      United States coin or currency that is legal tender at the time
      of payment.    This paragraph does not apply to an obligation
      issued after October 27, 1977. This paragraph shall apply to
      any obligation issued on or before October 27, 1977,
      notwithstanding any assignment or novation of such obligation
      after October 27, 1977, unless all parties to the assignment or
      novation specifically agree to include a gold clause in the new
      agreement.

31 U.S.C. § 5118(d)(2) (1996 amendment highlighted).1

      The Supreme Court then granted certiorari and remanded the case to
this court “for further consideration in light of the Economic Growth and
Regulatory Paperwork Reduction Act of 1996, P.L. No. 104-208, Sec. 2609.”
117 S.Ct. 939 (1997).     A briefing schedule was established, stayed at
request of both sides to permit discussions of possible settlement, and then
reinstated with modified dates.      Before oral argument could be heard,
Congress acted again. This time it eliminated the provision it had




      1
        The amendment also provided that it would not apply to gold clause obligations
finally adjudicated before its passage.

                                         -3-
added to the gold clause statute in 1996. Public Law 105-61, § 641.            The
legislation, signed into law on October 10, 1997, stated that:

      [s]ection 5118(d)(2) of title 31 United States Code, is amended
      by striking “This paragraph shall” and all that follows through
      the end of the paragraph.

Oral argument was then postponed to permit additional briefing on the
implications of the new legislative action.2

      The parties disagree as to the significance of the amendments.
American Life asserts that the gold clause in the lease cannot be enforced
because the 1996 amendment was written to be retroactive and the parties did
not “specifically agree” to include the gold clause in the 1990 assignment.
It therefore is only obligated to pay the lease amount of $18,000 per year
on the building. It says the 1997 amendment has no effect here because it
is not retroactive, citing Landgraf v. U.S.I. Film Products, 114 S.Ct. 1483
(1994). The lessors argue that the gold clause in this lease continues to
have effect under either statute. They contend that the 1997 amendment is
retroactive, making the 1996 amendment now irrelevant. They also say that
even if the 1996 amendment applies to this lease, the gold clause is
enforceable because American Life explicitly agreed in the assignment to be
bound by “all of the terms and conditions” of the 1917 lease, and one of the
terms of that lease was the gold clause.

      American Life argues that the resolution of this case is a simple
matter of applying the Landgraf holding which requires a clear expression
of Congressional intent before a statute will be given retroactive effect.
It is unable to cite a case, however,




      2
        The parties have sought permission to file post-argument briefs addressing
retroactivity issues, and their motions are granted.

                                       -4-
where the presumption was employed in a situation similar to the one here.3
The 1996 amendment says that it “shall apply to any obligation issued on or
before October 27, 1977 . . .,” thus indicating on its face a retroactive
intent. See Landgraf, 114 S.Ct. 1483. The 1997 enactment simply states
that the prior amendment is stricken. It does not use the type of language
normally associated with retroactive effect. See id. Its apparent intent,
however, is to eliminate the effect of the previous year’s enactment, and
to apply it in that way here would not implicate the policy interests
underlying the presumption against retroactivity.         This policy “has
consistently been explained by reference to the unfairness of imposing new
burdens on persons after the fact.” Id. at 1500. As to the parties in this
case, the interests of “fair notice, reasonable reliance and settled
expectations,” id. at 1499, would weigh in favor of interpreting the 1997
amendment to return the law to its former state as it existed in 1990 at the
time of the assignment to American Life.

      The sequence of the legislative amendments and the involvement of
these parties in that process are part of the full context of this case.4
Each amendment reflected a desire to influence its outcome, and each was
passed as a small item in an otherwise unrelated statute.5      The 1997
amendment provided for the elimination of the entire 1996 amendment, and
there is nothing to suggest that the language was carefully crafted to
prevent its application here.




      3
       The statutory background in Landgraf was strikingly different from the one here.
The statutory provisions at issue there were part of fundamental changes in civil rights
law and resulted from a lengthy deliberative process. See id. at 1491, 1493. After
Congress considered and rejected a version of the Civil Rights Act which had express
retroactive language, it ultimately enacted a statute with none. See id. at 1491-92.
      4
      Initiatives by the parties in respect to the legislation were discussed at oral
argument.
      5
       The 1997 repeal was a small part of a voluminous act entitled “Treasury, Postal
Service and General Government Appropriations, 1998.”

                                          -5-
      If a requirement of explicit statutory language commanding
retroactivity is necessary for the 1997 amendment to have an effect on this
case, however, then we must consider the effect of the 1996 amendment as
controlling. The 1996 amendment required that a gold clause be specifically
agreed to in order to be effective.       The 1990 Warranty Assignment and
Assumption agreement which controlled the assignment of the lease to
American Life contains a reference to the original lease and provides that
the assignor transfers the leasehold interest and that American Life, the
assignee:

           hereby accepts, assumes and agrees to be bound by all
           of the terms and conditions to be kept, observed, and
           performed by the lessee in said lease, as amended
           above described, from and after August 1, 1990. . .
           .

      We previously held that this assignment amounted to a novation. This
meant that the gold clause was enforceable under the 1977 statute since
under Iowa law the 1990 novation amounted to a new obligation issued after
the key statutory date. See Klipp v. Iowa Grain Indemnity Fund Board, 502
N.W.2d 9, 11 (Iowa 1993); Eitzen’s Estate v. Lauman, 3 N.W.2d 546, 549-50
(Iowa 1942). Under the 1996 amendment a gold clause is not enforceable
“notwithstanding any assignment or novation” of a contract including such
a clause unless the parties “specifically agree to include a gold clause in
the new agreement.” 31 U.S.C. § 5118(d)(2). The substituted contract must
therefore demonstrate explicit intent to include a gold clause in the new
obligation or it is not enforceable.

      The substituted contract in this case satisfies the 1996 statutory
requirement because it specifically included each clause of the original
contract as a new term. American Life expressly assumed “all of the terms
and conditions” (emphasis added) of the 1917 contract, and the gold clause
in that contract was enforceable under the statute as it existed at the time
of the 1990 assignment and as amended in 1996. Under




                                    -6-
Iowa law an assignment is a contract subject to the traditional rules of
construction and where unambiguous, its words will be interpreted according
to their common meaning. Broyles v. Iowa Dep’t of Soc. Services, 305 N.W.2d
718, 721-22 (Iowa 1981) (citing 6A C.J.S. Assignments § 2 (1975); Kinney v.
Capitol-Strauss, Inc., 207 N.W.2d 574, 576-77 (Iowa 1973)). The terms of
this assignment reveal the parties’ intent to agree to include all original
lease clauses, including the gold clause, in the new agreement created in
1990, thus satisfying the requirements of the 1996 amendment.

      American Life claims that even if it specifically agreed to include
the gold clause, the lessors did not. The statutory requirement is not
satisfied unless “all parties” to the contract have agreed. American Life
argues the lessors did not even realize that they could demand payment under
the gold clause until 1991. The original lessor agreed in 1917 to all
future assignments of the lease, however, and thus there was no need for
them to agree to the gold clause contemporaneously with the 1990 novation.
The statute only requires that all parties specifically agree to include a
gold clause, not that all parties contemporaneously agree to include the
clause. The original lessor specifically agreed to all clauses in the 1917
lease, including the gold clause, as well as to all future assignments, and
lessors are the successors in interest. This is sufficient to satisfy the
specific agreement requirement.

      After reviewing the pertinent legislation subsequent to our earlier
decision and the arguments raised by the parties, we conclude that the gold
clause in this lease is enforceable and we reinstate our prior decision.
Accordingly, we remand the case to the district court for further
proceedings consistent with this opinion and Trostel v. American Life & Cas.
Ins. Co., 92 F.3d 736 (8th Cir. 1996).6




      6
       This resolution makes it unnecessary to consider the lessors’ arguments that the
1996 amendment is beyond the power of Congress under the Commerce Clause or that
the lease is commercially impracticable or voidable because of a failure of a
fundamental condition.

                                          -7-
A true copy.

     Attest:

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




                             -8-
