Commercial Litigation and Arbitration

When a Later-Enacted Statute May Be Applied to Prior Conduct without Transgressing Rules against Retroactivity — Three-Step Analysis

From Gordon v. Pete’s Auto Serv. Of Denbigh, Inc., 2012 U.S. Dist. LEXIS 32262 (E.D. Va. Mar. 12, 2012):

As the Fourth Circuit has previously noted in this case, "[retroactivity is not favored in the law." Gordon, 637 F.3d at 458 (quoting Bowen v. Georgetown Hosp., 488 U.S. 204, 208 (1988)). "This maxim is reflected in a presumption against statutory retroactivity" which "instructs courts not to apply a statute to conduct that took place before the statute went into effect." Id.

To determine whether this presumption prevents intervening statutes from applying in any given case, a three-step analysis is appropriate. First, a court must ask "whether Congress has expressly prescribed the statute's proper reach." If Congress has clearly stated that the statute should be applied retroactively, then "there is no need to resort to judicial default rules."

If "the statute contains no such express command," however, then a court proceeds to the second step and asks "whether the new statute would have retroactive effect" as applied to the particular case. If not, then the presumption against retroactivity is not triggered, and the court must "give effect to Congress's latest enactment . . . ." If the new statute would operate retroactively, then the statute must be construed not to apply to pre-enactment conduct unless, in the third step of the analysis, there is "clear congressional intent favoring such a result."

Id. (quoting Landqraf v. USI Film Prods., 511 U.S. 244, 280 (1994), and Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 227 (1995)) (citations omitted). ***

As the Fourth Circuit has previously observed in this case:

A statute does not have retroactive effect "merely because it is applied in a case arising from conduct antedating the statute's enactment." Rather, a statute operates retroactively when it "attaches new legal consequences to events completed before its enactment," for example by "impair[ing] rights a party possessed when he acted, increas[ing] a party's liability for past conduct, or impos[ing] new duties with respect to transactions already completed."

Id. (quoting Landgraf, 511 U.S. at 269, 270, 280).

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