When is an amended federal civil statute retrospective as opposed to prospective such that it affects pending cases? The U.S. Supreme Court cases Landgraf v. USI Film Products, 511 U.S. 244 (1994) and Lindh v. Murphy, 521 U.S. 320 (1997) provide the framework attorneys should use to answer this question. First, look for an “unambiguous directive” from Congress as to the temporal reach of a statute. If one is found, it is generally controlling and the inquiry ends. Mathews v. Kidder, Peabody & Co., 161 F.3d 156, 161 (3d Cir. 1998) (citing Landgraf, 511 U.S. at 263). Otherwise, use the rules of statutory construction to determine if Congress intended the statute to apply only to future cases. Again, if this intent is found, it is controlling and the inquiry ends. If there is neither an express command nor an intent to apply a statute prospectively only, look to the effect that the statute will have. If 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,” then it has a “retroactive effect” and should only apply prospectively, unless Congress clearly intended to apply the statute to pending cases. Id. (citing Landgraf, 511 U.S. at 280). Conversely, if it would merely affect prospective relief, change procedural rules, or allocate jurisdiction, then apply the statutory construction rules to determine whether it should be applied retroactively.
In analyzing the “retroactive effect” of statutes under the last step of the test, federal courts are concerned with protecting vested, substantive rights. Amendments that are procedural or remedial in nature do not trigger those same concerns. Compare Johnson v. Conner, 754 F.3d 918, 920 (11th Cir. 2014) (holding that amended statute extending immunity to jailers was prospective because it created a new vested right in the jailers and simultaneously destroyed the plaintiff’s vested interest in his cause of action against the jailers), with Legal Assistance for Vietnamese Asylum Seekers v. Dep't of State, Bureau of Consular Affairs, 104 F.3d 1349, 1352 (D.C. Cir. 1997) (holding that amended statute regarding the secretary of state’s authority to determine procedures for processing immigrant visa applications did not raise retroactivity concerns because it affected only procedural, not substantive, rights; and effects would be remedial in nature, not punitive).
The U.S. Constitution affords additional protections against retroactivity. See Landgraf, 511 U.S. at 266 (listing the Ex Post Facto Clause, Contracts Clause, Takings Clause, Bill of Attainder Clauses, and Due Process Clause). Moreover, while federal law is the presumptive starting point for state constitutional analysis, some states including New Hampshire, Colorado, Georgia, Idaho, Massachusetts, Missouri, New Mexico, Ohio, Tennessee, and Texas have constitutional provisions that go beyond the U.S. Constitution and expressly prohibit retroactive legislation.
It is also important that attorneys stay abreast of the ongoing legislative history of statutes at issue in their cases. This is particularly true if there is a question as to whether the statute provides an independent cause of action or defense because any proposed changes that would explicitly create the cause of action or defense imply that the statute, as drafted, does not contain those rights. See O'Hara v. Nika Techs., Inc., 878 F.3d 470, 475 (4th Cir. 2017) (courts are not free to read into the language of a statute what is not there, but rather should apply the statute as written). Federal proposed legislation, current or past, can be found at Congress.gov, with an advance search available at https://www.congress.gov/advanced-search/legislation. Searching is available by number or keyword, which will lead to information about bill status, full text versions, and more. It is a good idea to periodically check on the legislative history of any statute involved in a pending case, as proposed amendments may impact how to construe to current version.
Tali L. Katz is an associate at Greensfelder, Hemker & Gale, P.C. in St. Louis, Missouri.