PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANDRE GORDON,
Plaintiff-Appellant,
v.
PETE’S AUTO SERVICE OF DENBIGH,
INCORPORATED, No. 09-2393
Defendant-Appellee.
UNITED STATES OF AMERICA,
Amicus Supporting Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Rebecca Beach Smith, District Judge.
(4:08-cv-00124-RBS-FBS)
Argued: October 27, 2010
Decided: February 14, 2011
Before WILKINSON, GREGORY, and WYNN,
Circuit Judges.
Reversed and remanded by published opinion. Judge Wilkin-
son wrote the opinion, in which Judge Gregory and Judge
Wynn joined.
2 GORDON v. PETE’S AUTO SERVICE OF DENBIGH
COUNSEL
ARGUED: Rebecca Sue Colaw, REBECCA S. COLAW, PC,
Suffolk, Virginia, for Appellant. Nathaniel S. Pollock,
UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for Amicus Supporting Appellant. Richard Roston,
LOWELL A. STANLEY, PC, Norfolk, Virginia, for Appel-
lee. ON BRIEF: William M. McKee, WILLIAM M. MCKEE
& ASSOCIATES, Norfolk, Virginia, for Appellee. Thomas E.
Perez, Assistant Attorney General, Dennis J. Dimsey, Civil
Rights Division, Appellate Section, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for
Amicus Supporting Appellant.
OPINION
WILKINSON, Circuit Judge:
In this case, a member of the United States Navy seeks to
recover damages from the company that allegedly towed and
sold his SUV while he was deployed. The plaintiff initially
claimed that § 307 of the Servicemembers Civil Relief Act
(SCRA), 50 U.S.C. app. § 537, which prohibits enforcement
of liens against servicemembers during military service,
afforded him an implied private right of action for monetary
damages. The district court disagreed and dismissed the suit.
While this case was pending on appeal, however, Congress
amended the SCRA to include an express private right of
action. Because the amended statute plainly provides the
cause of action without working an impermissibly retroactive
effect, we must reverse the judgment of the district court.
I.
In March 2007, Andre Gordon received orders from the
United States Navy transferring him to Norfolk, Virginia. He
GORDON v. PETE’S AUTO SERVICE OF DENBIGH 3
and his wife signed a lease at an apartment complex in nearby
Newport News, where Gordon explained that he was subject
to deployment and that during his deployment his wife would
return to their prior residence in Jacksonville, Florida. On the
lease, he identified his 2002 Jeep Grand Cherokee and named
his wife as his emergency contact.
When Gordon was subsequently deployed, he left the Jeep
in the apartment complex’s parking lot. In May 2007, while
Gordon was still deployed, a representative from the apart-
ment complex notified defendant Pete’s Auto Service of Den-
bigh, Inc. ("Pete’s Towing") that Gordon’s Jeep had a flat tire
and requested that it be towed. After towing the vehicle,
Pete’s Towing retained it for one month. On June 22, Pete’s
Towing sold the Jeep to itself, and finally sold the vehicle to
a third party on June 25. Neither Pete’s Towing nor the apart-
ment complex contacted Gordon or his wife.
On December 17, 2008, Gordon brought suit in federal
court against Pete’s Towing, alleging both conversion under
state law and a violation of SCRA § 307. Gordon claimed fed-
eral question jurisdiction under the latter, which provides that
"[a] person holding a lien on the property or effects of a ser-
vicemember may not, during any period of military service of
the servicemember and for 90 days thereafter, foreclose or
enforce any lien on such property or effects without a court
order granted before foreclosure or enforcement." 50 U.S.C.
app. § 537(a)(1).
The district court scheduled a trial for December 7, 2009,
but Gordon moved for a stay on October 20, 2009 because he
had received orders requiring him to travel to South Korea.
Before addressing that motion, the district court sua sponte
determined that it lacked subject matter jurisdiction because
the SCRA did not provide a cause of action for damages.
Accordingly, on November 17, 2009 the court dismissed Gor-
don’s claims against Pete’s Towing and dismissed the motion
for stay as moot.
4 GORDON v. PETE’S AUTO SERVICE OF DENBIGH
After Gordon filed this appeal, Congress addressed the very
issue confronted by the district court. The Veterans’ Benefits
Act of 2010, signed into law by the President on October 13,
2010, added § 802 to the SCRA to provide that "[a]ny person
aggrieved by a violation of [the SCRA] may in a civil action
(1) obtain any appropriate equitable or declaratory relief with
respect to the violation; and (2) recover all other appropriate
relief, including monetary damages." SCRA § 802(a), Pub. L.
No. 111-275, 124 Stat. 2864, 2878 (to be codified at 50
U.S.C. app. § 597a). That provision also now allows prevail-
ing plaintiffs to recover "the costs of the action, including a
reasonable attorney fee." Id. § 802(b). The issue before us on
appeal is whether this newly adopted express right of action
would be impermissibly retroactive as applied to this particu-
lar case.
II.
The Servicemembers Civil Relief Act is part of a long
record of congressional concern for the domestic affairs of
those in military service. Congress first adopted the SCRA’s
predecessor, the Soldiers’ and Sailors’ Civil Relief Act
(SSCRA), Pub. L. No. 65-103, 40 Stat. 440 (1918), during
World War I "in order to prevent prejudice or injury to [sol-
diers’ and sailors’] civil rights during their term of service and
to enable them to devote their entire energy to the military
needs of the Nation," id. § 100. The Act provided several pro-
tections for those with the "especial burdens" of active duty
in the armed forces. Dameron v. Brodhead, 345 U.S. 322, 325
(1953); see also, e.g., SSCRA §§ 200 (default judgments),
300 (eviction), 302 (mortgage foreclosure). Congress re-
enacted the SSCRA in 1940, Pub. L. No. 76-861, 54 Stat.
1178, and expanded the Act numerous times between 1942
and 2003, when it was renamed the Servicemembers Civil
Relief Act, Pub. L. No. 108-189, 117 Stat. 2835. The SCRA
now provides a variety of protections against such diverse ills
as cancellation of life insurance contracts, 50 U.S.C. app.
GORDON v. PETE’S AUTO SERVICE OF DENBIGH 5
§§ 541-549, and taxation in multiple jurisdictions, 50 U.S.C.
app. §§ 570-571.
The § 802 cause of action to enforce SCRA rights is consis-
tent with this long history of solicitude. We are mindful that
the SCRA—like its predecessors—"‘must be read with an eye
friendly to those who dropped their affairs to answer their
country’s call.’" United States v. Onslow Cnty. Bd. of Educ.,
728 F.2d 628, 636 (4th Cir. 1984) (quoting Le Maistre v. Lef-
fers, 333 U.S. 1, 6 (1948)). But in determining whether to
apply SCRA § 802 here, we need only reference the classical
retroactivity analysis of Landgraf v. USI Film Products, 511
U.S. 244 (1994). For under Landgraf, a private right of action
is available to the plaintiff in this case.
III.
"Retroactivity is not favored in the law." Bowen v. George-
town Univ. Hosp., 488 U.S. 204, 208 (1988). This maxim is
reflected in a presumption against statutory retroactivity that
is "deeply rooted in our jurisprudence, and embodies a legal
doctrine centuries older than our Republic." Landgraf, 511
U.S. at 265. When triggered, the presumption against retroac-
tivity instructs courts not to apply a statute to conduct that
took place before the statute went into effect.
To determine whether this presumption prevents interven-
ing statutes from applying in any given case, a three-step
analysis is appropriate. See Ward v. Dixie Nat’l Life Ins. Co.,
595 F.3d 164, 172 (4th Cir. 2010). First, a court must ask
"whether Congress has expressly prescribed the statute’s
proper reach." Landgraf, 511 U.S. at 280. If Congress has
clearly stated that the statute should be applied retroactively,
then "there is no need to resort to judicial default rules." Id.
If "the statute contains no such express command," how-
ever, then a court proceeds to the second step and asks
"whether the new statute would have retroactive effect" as
6 GORDON v. PETE’S AUTO SERVICE OF DENBIGH
applied to the particular case. Id. If not, then the presumption
against retroactivity is not triggered, and the court must "give
effect to Congress’s latest enactment, even when that has the
effect of overturning the judgment of an inferior court." Plaut
v. Spendthrift Farm, Inc., 514 U.S. 211, 227 (1995). 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." Landgraf, 511 U.S. at 280.
IV.
First we must determine whether Congress, in the Veter-
ans’ Benefits Act of 2010, has "expressly prescribed the stat-
ute’s proper reach." Id. at 280. Pete’s Towing argues that
Congress has not, because "[t]he language of § 802 of the Ser-
vicemembers Civil Relief Act does not indicate an intention
to make the law apply retroactively." Supplemental Brief of
Appellee at 7. We agree, for the Veterans’ Benefits Act is
silent on this question.
The standard for expressly prescribing the temporal reach
of a statute "is ‘a demanding one,’ requiring prescription that
is truly express and unequivocal." Ward, 595 F.3d at 173
(quoting INS v. St. Cyr, 533 U.S. 289, 316 (2001)). In the Vet-
erans’ Benefits Act amendments to the SCRA, however, Con-
gress did not include any "express and unequivocal language
specifying whether it applies to lawsuits filed before its enact-
ment." Id. Even Gordon, while contending that the legislative
history of the Veterans’ Benefits Act supports retroactive
application, concedes that such an intention "is not apparent
in the reading of the statute." Supplemental Brief of Appellant
at 14. We thus conclude that Congress has neither expressly
included nor excluded pre-enactment conduct from the reach
of this statute.
V.
Turning to the second step of the retroactivity analysis, we
consider whether applying SCRA § 802 to Gordon’s claims
GORDON v. PETE’S AUTO SERVICE OF DENBIGH 7
against Pete’s Towing would have retroactive effect. A statute
does not have retroactive effect "merely because it is applied
in a case arising from conduct antedating the statute’s enact-
ment." Landgraf, 511 U.S. at 269. Rather, a statute operates
retroactively when it "attaches new legal consequences to
events completed before its enactment," id. at 270, for exam-
ple 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. at 280. This inquiry is narrow, for it asks "not whether the
statute may possibly have an impermissible retroactive effect
in any case," Supplemental Brief for Amicus Curiae United
States at 6, but specifically "whether applying the statute to
the person objecting would have a retroactive consequence in
the disfavored sense," Fernandez-Vargas v. Gonzales, 548
U.S. 30, 37 (2006) (emphasis added).
A.
Pete’s Towing does not contend that SCRA § 802(a)
impairs the parties’ rights or imposes new duties, nor do we
so hold. The servicemember already had a right to prevent
foreclosure of a lien on his car under SCRA § 307(a), which
proscribed Pete’s Towing from "foreclos[ing] or enforc[ing]
any lien on [Gordon’s] property or effects without a court
order" during his military service or 90 days thereafter. Sec-
tion 802(a) does not alter the scope of that substantive right.
Before the enactment of SCRA § 802(a), the SCRA
§ 307(a) right of non-foreclosure was already enforceable in
a Virginia conversion action.1 In Virginia, the tort of conver-
1
Pete’s Towing argues that before § 802(a) was added, "there was no
private cause of action to potentially penalize Pete’s Towing for an alleged
violation of the SCRA." Supplemental Brief of Appellee at 10. For pur-
poses of this appeal, we do not decide whether there was a pre-existing
implied federal right of action to enforce SCRA § 307, but rather assume
for the sake of argument that there was not.
8 GORDON v. PETE’S AUTO SERVICE OF DENBIGH
sion "encompasses any wrongful exercise or assumption of
authority . . . over another’s goods, depriving him of their
possession; [and any] act of dominion wrongfully exerted
over property in denial of the owner’s right, or inconsistent
with it." PGI, Inc. v. Rathe Prods., Inc., 576 S.E.2d 438, 443
(Va. 2003) (internal quotation omitted). The alleged sale of
Gordon’s Jeep was such an "act of dominion wrongfully
exerted over property in denial of the owner’s right" because,
contrary to the requirements of SCRA § 307, no court order
authorized it. In fact, § 307 contemplates that the owner’s
right might be enforced in a conversion action, see SCRA
§ 307(c)(2) ("The remedy and rights provided under this sec-
tion are in addition to and do not preclude any remedy for
wrongful conversion otherwise available under law . . . ."),
and Virginia cannot refuse to apply the substantive protec-
tions of a federal statute in its own courts. See Testa v. Katt,
330 U.S. 386, 394 (1947). That Gordon has an enforceable
right to prevent foreclosure of a lien on his car is therefore not
a change from prior law.
B.
Even if the new statute does not alter the parties’ rights and
duties, Pete’s Towing contends that SCRA § 802(a) would
have retroactive effect if applied to this case because it would
increase the defendant’s potential liability. Section 802(a)(2)
does allow successful plaintiffs to "recover all other appropri-
ate relief, including monetary damages," and Pete’s Towing
states that this liability "can encompass both compensatory
damages and punitive damages." Supplemental Brief of
Appellee at 11.
This argument fails to show, however, that this liability is
any departure from the status quo under Virginia conversion
law. Compensatory damages are certainly available in conver-
sion actions, see Avocet Dev. Corp. v. McLean Bank, 364
S.E.2d 757, 762 (Va. 1988), as are punitive damages when the
defendant’s conduct was "willful and wanton," PGI, Inc., 576
GORDON v. PETE’S AUTO SERVICE OF DENBIGH 9
S.E.2d at 444. Indeed, Pete’s Towing acknowledged at oral
argument that both compensatory and, if appropriate, punitive
damages would be available to Gordon in a state-law conver-
sion claim. Thus SCRA § 802(a) differs from the statute
found to have retroactive effect in Landgraf, which authorized
punitive and compensatory damages where they were not pre-
viously available. 511 U.S. at 280-83.
Instead, Pete’s Towing argues that applying SCRA
§ 802(a) to this case would create new liability because Gor-
don could "potentially recover punitive damages for an alleg-
edly willful violation of the SCRA in addition to any punitive
damages arising out of an underlying tort such as Conver-
sion." Supplemental Brief of Appellee at 11 (emphasis added).
This argument ignores the widely accepted prohibition on
duplicative damages. Gordon may bring a Virginia conversion
claim alongside his SCRA § 802 suit, see SCRA § 803, Pub.
L. No. 111-275, 124 Stat. at 2878 (to be codified at 50 U.S.C.
app. § 597b) ("Nothing in section 801 or 802 shall be con-
strued to preclude or limit any remedy otherwise available
under other law, including consequential and punitive dam-
ages."), but he may not receive a double recovery under dif-
ferent legal theories for the same injury. See Martin v. Harris,
560 F.3d 210, 221 (4th Cir. 2009) ("[T]here must be no dupli-
cation in the final award . . . ."); see also Specialty Beverages,
LLC v. Pabst Brewing Co., 537 F.3d 1165, 1180 n.12 (10th
Cir. 2008); Junker v. Eddings, 396 F.3d 1359, 1368 (Fed. Cir.
2005); Wilkins v. Peninsula Motor Cars, Inc., 587 S.E.2d 581,
583 (Va. 2003) ("[W]hen the claims, duties, and injuries are
the same, duplicative recovery is barred."). Because Gordon
may not recover duplicative damages for the same injury
under both the SCRA and Virginia conversion law, Pete’s
Towing faces no new liability under SCRA § 802(a).
C.
Given that SCRA § 802(a) does not alter the rights, liabili-
ties, or duties of Gordon or Pete’s Towing, its effect in this
10 GORDON v. PETE’S AUTO SERVICE OF DENBIGH
case is limited to providing a federal forum. In essence, this
is a jurisdictional change. A statute that only addresses which
court shall have jurisdiction "‘normally governs [pending
cases] . . . because jurisdictional statutes speak to the power
of the court rather than to the rights or obligations of the par-
ties.’" Tasios v. Reno, 204 F.3d 544, 552 (4th Cir. 2000)
(alterations in original) (quoting Landgraf, 511 U.S. at 274).
And unlike the statute at issue in Hughes Aircraft Co. v.
United States ex rel. Schumer, 520 U.S. 939, 951 (1997),
which had retroactive effect because it "[did] not merely allo-
cate jurisdiction among forums" but instead "create[d] juris-
diction where none previously existed," SCRA § 802(a)
simply allows servicemembers to enforce their SCRA
rights—previously enforceable in state tribunals—in federal
court.
Such statutes merely "regulate the secondary conduct of lit-
igation and not the underlying primary conduct of the par-
ties." Id. Applying the express right of action under SCRA
§ 802(a) to this matter thus would pose no retroactivity prob-
lem. The presumption against retroactivity is therefore not trig-
gered,2 and on remand the district court should "give effect to
Congress’s latest enactment." Plaut, 514 U.S. at 227.
VI.
Even if SCRA § 802(a) would not create an impermissibly
retroactive effect as applied to this case, Pete’s Towing con-
tends that § 802(b) would. That provision allows the court to
"award to a person aggrieved by a violation of this Act who
prevails in an action brought under [SCRA § 802(a)] the costs
of the action, including a reasonable attorney fee." It is proper
to analyze each section of the Veterans’ Benefits Act sepa-
rately for retroactive effect, for the Supreme Court has noted
that "there is no special reason to think that all the diverse
2
Because we find no impermissible retroactive effect, we need not reach
the third step of the analysis prescribed by Landgraf.
GORDON v. PETE’S AUTO SERVICE OF DENBIGH 11
provisions of the Act must be treated uniformly for such pur-
poses." Landgraf, 511 U.S. at 280; see also id. at 280-83 (sep-
arately analyzing provisions of Civil Rights Act of 1991 for
retroactive effect). We need not address whether attorney fees
are available in this particular case, however, because no
party has yet prevailed. The issue is therefore not before us.
VII.
For the foregoing reasons, we reverse the judgment of the
district court and remand for proceedings consistent with this
opinion.
REVERSED AND REMANDED