                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-20-2008

Monoson v. USA
Precedential or Non-Precedential: Precedential

Docket No. 07-1983




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                                     PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT

                  Case No: 07-1983

                 DAVID MONOSON

                              v.

          UNITED STATES OF AMERICA,

                           Appellant


On Appeal from the District Court of the Virgin Islands
            District Court No. 98-cv-00046
   District Judge: The Honorable Curtis V. Gomez


             Argued December 11, 2007

      Before: SMITH, NYGAARD, and ROTH,
                  Circuit Judges

              (Filed: February 20, 2008)



                          1
Desmond L. Maynard
Shawn E. Maynard Hahnfeld (Argued)
Law Offices of Desmond L. Maynard
P.O. Box 8388
Charlotte Amalie, St. Thomas
U.S. Virgin Islands, 00801
Counsel for Appellee

Eric Fleisig-Greene (Argued)
Room 7214
United States Department of Justice
Civil Division
950 Pennsylvania Ave, N.W.
Washington, D.C. 20530
Counsel for Appellant



                        OPINION


SMITH, Circuit Judge.

       This case presents a discrete issue: Is 20 V.I.C. §
555, which limits the recovery of non-economic damages
arising from a motor vehicle accident to $75,000,
impermissibly retroactive as applied to a case that was
pending when it was enacted. We conclude that it is, and

                            2
we will affirm the District Court’s judgment.

                            I.

       In February of 1991, David Monoson was driving
his motorcycle and was hit by a jeep driven by United
States Army Recruiter Bryon Phillips. Monoson sustained
numerous fractures and lacerations, and required
hospitalization for a period of time. After exhausting his
administrative remedies, he filed a complaint in February
of 1998 against the United States asserting a negligence
claim under the Federal Tort Claims Act (“FTCA”), 28
U.S.C. § 1346. Summary judgment was granted for the
United States in February of 2000, but we reversed and
remanded in August of 2001 because there were genuine
issues of material fact.

       On remand, a bench trial was held in February of
2006 before Chief District Judge Curtis V. Gomez. In a
memorandum opinion dated December 21, 2006, the
District Judge found that both parties were negligent:
Recruiter Phillips was 67% liable and Monoson was 33%
liable. Consistent with this finding, the District Judge
reduced the award of $511,899.39 ($11,899.39 for medical
bills and lost wages, and $500,000 for pain and suffering)
to $342,972.59.

                            3
       On December 28, 2006, the United States moved for
reconsideration of the award of damages, requesting that
the Court reduce the amount of Monoson’s judgment
consistent with 20 V.I.C. § 555. Section 555, which was
enacted in 1999 after Monoson commenced this action,
limits the recovery of non-economic damages for any
injury to a person in an action arising out of a motor
vehicle accident to $75,000.1 The District Court denied the


      1
        On August 17, 1999, the Virgin Islands legislature
enacted the Short Term Revenue Enhancement Act of 1999
(“STRE Act”). Section 26 of the Act amended Title 20,
Chapter 45 of the Virgin Islands Code by adding a new
section 555. This new section provides:

      (a) The total amount recoverable for non-
      economic damages for any injury to a person
      in an action arising out of a motor vehicle
      accident may not exceed seventy-five
      thousand dollars ($75,000); provided,
      however that this limitation shall not apply
      upon a finding of gross negligence or willful
      conduct.
      (b) For the purposes of this section, non-
      economic damages include:
            (1) pain and suffering;
            (2) physical impairment;
                            4
motion on January 6, 2007. It concluded that the statute,
which was enacted during the pendency of Monoson’s
FTCA claim, was intended to have only a prospective
application. The Court relied upon the fact that the statute
did not take effect for 180 days and that there was a
possibility that the effective date could be extended.
Having concluded that the statute was intended to be
prospective, the Court did not consider whether it had a
retroactive effect.

       The government filed a timely appeal. It contends
that the District Court erred by refusing to apply § 555 to
reduce the amount of Monoson’s judgment.

                            II.

      The District Court exercised jurisdiction pursuant to

             (3) disfigurement; and
             (4) other not-pecuniary damages
             recoverable under the tort laws
             of this Territory.

Section 28 of the Act specifies that Section 26, which
added the new § 555 limiting non-economic damages,
“shall take effect 180 days after the enactment of this
Act[.]” Id.
                             5
28 U.S.C. § 1346 and 48 U.S.C. § 1612(a). We exercise
final order jurisdiction under 28 U.S.C. § 1291. Our
review of a District Court’s determination as to whether a
law is impermissibly retroactive is plenary. Cohn v. G.D.
Searle & Co., 784 F.2d 460, 463 (3d Cir. 1986); Lieberman
v. Cambridge Partners, L.L.C., 432 F.3d 482, 486 (3d Cir.
2005).

                           III.

        In Landgraf v. USI Film Products, 511 U.S. 244
(1994), the Supreme Court considered whether § 102 of the
Civil Rights Act of 1991, which created for a Title VII
plaintiff both the right to a jury trial and the right to
recover compensatory and punitive damages, could be
applied in a case that was pending when the Act was
passed by Congress. The Supreme Court concluded that
these provisions of the Act could not be applied to actions
which were pending when the legislation was enacted
because they had a retroactive effect.

       The Supreme Court recognized that “[w]hile
statutory retroactivity has long been disfavored, deciding
when a statute operates ‘retroactively’ is not always a
simple or mechanical task.” 511 U.S. at 268. The
Landgraf Court instructed that a “statute does not operate

                            6
‘retrospectively’ merely because it is applied in a case
arising from conduct antedating the statute’s enactment, or
upsets expectations based in prior law. Rather, the court
must ask whether the new provision attaches new legal
consequences to events completed before its enactment.”
511 U.S. at 269-70 (citations omitted). To this end, the
Landgraf Court articulated a two part test:

      When a case implicates a federal statute
      enacted after the events in suit, the court’s
      first task is to determine whether Congress
      has expressly prescribed the statute’s proper
      reach. If Congress has done so, of course,
      there is no need to resort to judicial default
      rules. When, however, the statute contains no
      such express command, the court must
      determine whether the new statute would
      have retroactive effect, i.e., whether it 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. If the statute
      would operate retroactively, our traditional
      presumption teaches that it does not govern
      absent clear congressional intent favoring
      such a result.

511 U.S. at 280. “Requiring clear intent assures that

                             7
Congress itself has affirmatively considered the potential
unfairness of retroactive application and determined that it
is an acceptable price to pay for the countervailing
benefits.” Id. at 272-73.

       In Lindh v. Murphy, 521 U.S. 320 (1997), the
Supreme Court instructed that scrutinizing the statutory
text of an intervening statute in applying Landgraf’s test is
not solely for the purpose of determining whether there is
an express command regarding the temporal reach of the
new provision. Id. at 324-25. Rather, the Court instructed
that “in determining a statute’s temporal reach, generally,
our normal rules of construction apply,” including “other
construction rules” that may “remove the possibility of
retroactivity.” Id. at 326. Thereafter, in Fernandez-Vargas
v. Gonzales, 548 U.S. 30, 126 S.Ct. 2422 (2006), the
Supreme Court reiterated the analysis to be employed:

      We first look to “whether Congress has
      expressly prescribed the statute’s proper
      reach,” and in the absence of language as
      helpful as that we try to draw a comparably
      firm conclusion about the temporal reach
      specifically intended by applying “our normal
      rules of construction.” If that effort fails, we
      ask whether applying the statute to the person
      objecting would have a retroactive

                             8
      consequence in the disfavored sense of
      “affecting substantive rights, liabilities, or
      duties [on the basis of] conduct arising before
      [its] enactment.”

Id. at __, 126 S.Ct. at 2428 (citations omitted). Thus, even
in the absence of a clear command, whether a statute may
be applied prospectively or retrospectively might be
answered by applying the principles of statutory
interpretation to the text of the new law. Id.; see also
Republic of Austria v. Altmann, 541 U.S. 677, 696 (2004)
(“find[ing] clear evidence [in the statutory language] that
Congress intended the Act to apply to preenactment
conduct”).

                            IV.

                            A.

       Under Landgraf and its progeny, we must first
determine whether the statute clearly expresses its temporal
reach. 511 U.S. at 280. Contrary to the District Court’s
assessment, the STRE Act does not contain any clear
command indicating that the legislature intended the law to
be applied prospectively or retrospectively. Instead, there
is only a statement that the statute “shall take effect 180

                             9
days after the enactment of this Act.” Landgraf instructs
that “[a] statement that a statute will be effective on a
certain date does not arguably suggest that it has any
application to conduct that occurred at an earlier date.”
511 U.S. at 257. Although Landgraf did not expressly
address whether this language established a clear intent
that the law operate prospectively, the opinion implicitly
suggests that the Court did not find any clear directive in
that regard because it proceeded to determine whether there
was a retroactive effect.

                             B.

       Lindh and Fernandez-Vargas instruct that, in the
absence of an unambiguous directive, we should apply
normal rules of statutory construction to determine whether
the legislature specifically addressed the statute’s temporal
reach. Lindh, 521 U.S. at 326; Fernandez-Vargas, 548
U.S. at __, 126 S.Ct. at 2428. Monoson contends that the
STRE Act specifies (1) that it is not applicable to the
circumstances before us, and (2) that it operates
prospectively. Monoson relies on an exception contained
in § 713 of the STRE Act for motor vehicles owned by the
United States government. He also asserts that the Act
specifies that it “shall not apply with respect to any
accident, or judgment arising therefrom . . . occurring prior

                             10
to its effective date.” STRE Act, § 710. Both § 710 and §
713 are set forth in Chapter 47 of the STRE Act and each
provision explicitly limits its application to Chapter 47.
Section 555 of the Act, however, is in Chapter 45. As a
result, §§ 710 and 713 of the STRE Act have no bearing on
the applicability of or the temporal reach of § 555, except
that § 713 shows that the legislature knew how to specify
unambiguously that the Act shall operate prospectively and
did not do so with regard to § 555.

       The government also relies on the plain text of § 555
to support its position that the legislature intended this
statutory cap to apply regardless of whether the conduct
giving rise to the liability occurred preenactment. It
submits that the phrase “total amount recoverable” signals
that the legislature intended this provision to be “triggered
only at judgment[,] . . . not when a claim accrues or is
filed.” Even if we credit this argument, it is by no means
a clear expression that the legislature contemplated that
once triggered, the statutory cap should be applied
retroactively to limit a plaintiff’s recovery for preenactment
conduct. Thus, we must determine if the statute in fact has
a retroactive effect that would preclude its application in
this case.

                             C.

                             11
        The government contends that the District Court’s
refusal to apply this statutory cap on non-economic
damages was error because there is no retroactive effect to
this statute. Section 555, the government argues, does not
have a retroactive effect because the statutory cap does not
fit into any of Landgraf’s categories, i.e., the statute does
not impair any rights possessed by a party, it does not
increase any party’s liability, and it does not impose upon
a party any new duties. 511 U.S. 280. Instead, the
government submits, this statutory cap simply reduced the
plaintiff’s expectation with regard to the amount of any
damages that might be awarded at trial. Mere interference
with Monoson’s expectation, according to the government,
does not constitute a retroactive effect.

       We are not persuaded that § 555 is a mere
interference with an expectation.2

      2
        We are cognizant of Landgraf’s observation that
“[w]hen [an] intervening statute authorizes or affects the
propriety of prospective relief, application of the new
provision is not retroactive.” 511 U.S. at 273. We reject,
however, any attempt by the government to align
Monoson’s expectancy in an award of damages in his civil
action with prospective relief. The prospective relief the
Landgraf Court considered was equitable relief that
“operate[d] in futuro.” Id. at 273-74 (quoting Am. Steel
                             12
 Indeed, our precedent instructs otherwise. Mathews v.
Kidder, Peabody & Co., 161 F.3d 156 (3d Cir. 1998);
Collins v. Montgomery County Board of Prison Inspectors,
176 F.3d 679 (3d Cir. 1999) (en banc).

       In Mathews, we applied Landgraf and its progeny to
determine whether the Private Securities Litigation Reform
Act of 1995 (“PLRSA”) had a retroactive effect on an
investor’s pending cause of action under the Racketeer
Influenced and Corrupt Organizations Act (“RICO”). 161
F.3d at 165. We noted that the PLRSA eliminated
securities fraud as a predicate act for purposes of a RICO
action, as well as the investor’s prospect of recovering
treble damages for securities fraud based RICO claims. As
a result, the investor was limited to pursuing only a claim
of securities fraud. We concluded that this constituted a
retroactive effect because “[i]f a change in the law from
back pay to compensatory and punitive damages [in
Landgraf] is seen as creating a new cause of action and
impairing a party’s rights, certainly a change from treble


Foundries v. Tri-City Cent. Trades Council, 257 U.S. 184
(1921); and citing Duplex Printing Press Co. v. Deering,
254 U.S. 443 (1921) (internal quotation marks omitted)).
 In this case, we are concerned with a claim for money
damages.
                            13
damages (under RICO) to compensatory damages alone
(under the securities laws) may be seen as destroying a
cause of action and impairing a party’s rights.” Id. at 165
(emphasis in original).

       The following year, in Collins, we again applied
Landgraf’s retroactivity test to decide whether several
provisions regarding attorney fees in the Prisoner
Litigation Reform Act of 1995 (“PLRA”) were
impermissibly retroactive. 176 F.3d at 679. One of the
challenged provisions required that, in the event the
prisoner obtained a judgment in his favor, a portion of that
judgment must be applied toward payment of the prisoner’s
attorney’s fees. See 42 U.S.C. § 1997e(d). We concluded
that this provision had a retroactive effect

      because under 42 U.S.C. § 1988 when Collins
      brought this action he could have anticipated
      applying to the court for an award of all of his
      reasonable attorney’s fees.             While
      undoubtedly even before the enactment of the
      PLRA various factors might have limited the
      amount of the award, when Collins brought
      this action and then applied for the
      appointment of counsel prior to the PLRA’s
      enactment, he had no reason to believe that
      the court would order that a portion of his

                            14
      judgment, if he obtained one, would be used
      to satisfy the attorney’s fees that the court
      awarded. Moreover, the various factors that
      could have led a court before enactment of the
      PLRA to reduce a fee application continue to
      be applicable after its enactment. Thus, we
      see no escape from the conclusion that the
      PLRA has a retroactive effect in this case to
      the extent that it requires that a portion of
      Collins’ judgment be applied to pay attorney’s
      fees.

176 F.3d at 685.

       Thus, under Collins and Mathews, our analysis for
retroactivity purposes must focus on: (1) the rights of
action that the plaintiff possessed, and the extent of
recovery available to him, under the law in effect when he
initiated his suit against the defendant; and (2) the rights of
action that the plaintiff possessed, and the extent of
recovery available to him, in light of the intervening
statute. If a new law restricts or impairs the plaintiff’s
rights of action or the potential recovery available to him
under the law in effect when suit was commenced, that new
law has a retroactive effect. Landgraf, 511 U.S. at 280
(observing that a statute has a retroactive effect if it “would


                              15
impair rights a party possessed when he acted”).3

      In this case, when Monoson filed suit against the
United States he was entitled to damages “in accordance
with the law of the place where the act or omission
occurred.” 28 U.S.C. § 1346(b). Under Virgin Islands
law, a plaintiff alleging a claim of negligence was
permitted to recover compensatory damages without


      3
         The government attempts to distinguish Collins on
the basis that the retroactive effect in that case resulted
solely because the new law imposed a new disability upon
the prisoner by obligating him to pay a portion of his
attorney fees. Section 555, the government argues, does
not have a retroactive effect because it does not impose a
new disability on Monoson as he is not obliged to pay any
portion of his judgment to another entity. It is true that in
Collins, § 1997e(d) attaches a new disability or duty on the
prisoner. It is also beside the point. This new provision
also impaired the plaintiff’s right to receive the full amount
of damages allowed by law at the time he commenced his
suit. In concluding that this provision of the PLRA had a
retroactive effect, we relied on the fact that it reduced the
amount of the judgment that Collins was entitled to
receive. 176 F.3d at 685-86. Accordingly, Collins governs
our analysis here.


                             16
limitation. After the enactment of the STRE Act, § 555
imposed a statutory cap of $75,000 on non-economic
damages. 20 V.I.C. § 555. This statutory cap severely
restricts Monoson’s rights, consistent with the law in effect
at the time he commenced this action, to recover more
substantial compensation for his injuries. Accordingly, in
the absence of a clear command that this new statutory cap
applies retrospectively, we conclude that § 555 cannot be
applied to limit Monoson’s recovery of the damages
awarded by the District Judge.

      We will affirm the judgment of the District Court.




                             17
