                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 08-1222
                                     ___________

Timothy J. Elbert,                    *
                                      *
            Plaintiff-Appellant,      *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of Minnesota.
True Value Company,                   *
                                      *
            Defendant-Appellee.       *
                                 ___________

                              Submitted: November 13, 2008
                                 Filed: December 19, 2008
                                  ___________

Before MURPHY, HANSEN, and RILEY, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       Timothy J. Elbert brought this action for retaliatory discharge against his former
employer True Value Company under 49 U.S.C. § 31105(a) of the Surface
Transportation Assistance Act (STAA). The district court1 granted the motion to
dismiss for True Value, concluding that the retroactive application of an amendment
to the STAA would affect the company’s substantive rights. Elbert appeals, and we
affirm.


      1
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
       Elbert, a truck driver for True Value, inspected a trailer he was scheduled to
operate on January 11, 2005 and concluded that the brakes were not in good working
order. He informed his supervisors that the brakes were faulty so he would not drive
the trailer. On January 13 True Value discharged Elbert.

       In March 2005 Elbert used STAA procedures, see 49 U.S.C. § 31105(b)(1), to
file a retaliatory discharge complaint with the Occupational Safety and Health
Administration (OSHA). OSHA served a preliminary finding and no cause
determination on the parties on April 29. Elbert filed objections and sought an
administrative hearing. After discovery and motion practice, a Department of Labor
administrative law judge conducted a six day hearing in June 2005. The judge issued
a recommended decision and order dismissing Elbert’s claims on November 16, 2006,
but a final order was not issued within the 120 day period provided by statute. See id.
§ 31105(b)(2)(c) (“[n]ot later than 120 days after the end of the hearing, the Secretary
shall issue a final order”).

       STAA was amended in accordance with the Implementing Recommendations
of the 9/11 Commission Act of 2007, effective August 3, 2007, see Pub. L. No. 110-
53, § 1536, 121 Stat. 266, 464-67. The amendment strengthened protections for
employees who complain of potential dangers and deficiencies regarding motor carrier
equipment. Of relevance to Elbert was one new subsection which conferred federal
district courts with jurisdiction over employee complaints, without regard to the
amount in controversy, whenever the Secretary of Labor has not issued a final
decision within 210 days after filing of the complaint and the delay was not due to the
bad faith of the employee. See 49 U.S.C. § 31105(c). Another new subsection of the
amendment provided for punitive damages up to $250,000; previously only
compensatory damages were available. See id. § 31105(b)(3)(C).

       Three days after the enactment of the STAA amendment, Elbert filed this
retaliatory discharge action in the district court. True Value sought dismissal under

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Fed. R. Civ. P. 12(b)(6), arguing that the new jurisdiction conferring provision in
§ 31105(c) may not be applied retroactively.

       The district court granted True Value’s motion to dismiss, holding that the new
jurisdictional amendment to STAA may not be applied retroactively because it would
affect True Value’s substantive rights. The district court concluded that since the
parties had already engaged in discovery, had an administrative hearing, and were
awaiting a final order, the retroactive application of § 31105(c) would create new
obligations for True Value by allowing Elbert to bring a fresh action with identical
allegations to those that were already being litigated at OSHA. This appeal followed.

       We review de novo the grant of a Rule 12(b)(6) motion to dismiss, taking all
facts alleged in the complaint as true. See Koehler v. Brody, 483 F.3d 590, 596 (8th
Cir. 2007). In determining whether retroactive application of a statute would have an
impermissible effect, we first consider “whether Congress has expressly prescribed
the statute’s proper reach.” Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994).
If it has not, the traditional presumption against retroactive legislation must be
considered. See id. at 265 (“the presumption against retroactive legislation is deeply
rooted in our jurisprudence”). A statute may not be given retroactive effect if doing
so “would 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.” Id. at 280. An amendment creating jurisdiction where none previously
existed “speaks not just to the power of a particular court but to the substantive rights
of the parties as well.” Hughes Aircraft Co. v. United States ex rel. Schumer, 520
U.S. 939, 951 (1997). “Such a statute, even though phrased in ‘jurisdictional’ terms,
is as much subject to [the] presumption against retroactivity as any other.” Id.

       The parties have conceded that neither the plain language of § 31105(c) nor its
legislative history signals a congressional intent for retroactive application. Elbert
characterizes the STAA’s jurisdiction conferring amendment as a procedural change

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that merely shifts the forum for his statutory claim. He also argues that True Value’s
substantive rights are not at risk because he is not requesting punitive damages
pursuant to § 31105(b)(3)(C).

       In Owner-Operator Indep. Drivers Ass’n, Inc. v. New Prime, Inc., 339 F.3d
1001 (8th Cir. 2003), we held that a jurisdiction conferring provision in the Interstate
Commerce Commission Termination Act (ICCTA) could not be given retroactive
effect under Landgraf and Hughes Aircraft Co. That was because “by permitting
[plaintiffs] to bring their own actions against motor carriers, the ICCTA expand[ed]
the class of plaintiffs who could bring claims, thereby altering the motor carriers’
substantive rights.” New Prime, 339 F.3d at 1007. We noted that “[t]he rationale for
th[e] presumption [against retroactive legislation] is that elementary considerations of
fairness dictate that individuals should have an opportunity to know what the law is
and to conform their conduct accordingly.” See id. (citation omitted).

       STAA’s jurisdiction conferring amendment similarly broadened the class of
individuals who may pursue a cause of action in district courts. Following the New
Prime analysis, we conclude the STAA amendment has an impermissible retroactive
effect in Elbert’s case. We decline to accept his characterization of the STAA
amendment as a procedural change that merely shifts the forum for his claim because
“[w]hen determining whether a new statute operates retroactively, it is not enough to
attach a label (e.g., ‘procedural,’ ‘collateral’) to the statute; we must ask whether the
statute operates retroactively.” See Martin v. Hadix, 527 U.S. 343, 359 (1999); see
also Landgraf, 511 U.S. at 275 n.29 (recognizing that new procedural rules may have
retroactivity concerns)

       We are also unpersuaded by Elbert’s argument that True Value’s substantive
rights are not at risk since he is not seeking punitive damages in the district court. To
permit Elbert to relitigate his claims in the district court when the parties have already
engaged in discovery and motion practice in his administrative case would result in

                                           -4-
additional costs to True Value. See Martin, 527 U.S. at 360 (when work has been
done before statute became effective, imposition of new standards could upset
reasonable expectations of parties who may have proceeded on assumption that prior
statute was in effect); Hughes Aircraft Co., 520 U.S. at 947 (“Every statute, which . . .
creates a new obligation . . . in respect to transactions or considerations already past,
must be deemed retrospective.”) (citation omitted); see also Landgraf, 511 U.S. at 281
(“Retroactive imposition of punitive damages would raise a serious constitutional
question.”). Moreover, even if True Value were not exposed to a different type of
liability in the district court, the fact that punitive damages were previously
unavailable may have impacted its employee relations. Cf. id. at 283 n.35 (applying
damages provision retroactively would raise fairness concerns because they would not
serve purpose of motivating employers to take preventive action before discriminatory
conduct occurs).

      We conclude that the district court did not err in dismissing Elbert’s federal
court action since the STAA’s jurisdiction conferring amendment increased the
universe of employees who could pursue their claims in federal court and would
impose new obligations affecting True Value’s substantive rights. Accordingly, we
affirm the judgment of the district court.
                       ______________________________




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