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Prisco v. Talty


filed: April 30, 1993; As Corrected May 11, 1993.


Appeal from the United States District Court for the Eastern District of Pennsylvania. D.C. Civil No. 91-07223

Before: Sloviter, Chief Judge, Becker and Mansmann, Circuit Judges.

Author: Mansmann


MANSMANN, Circuit Judge.

This appeal arises from the dismissal of a legal malpractice action brought by a client who alleged that the negligence of his attorneys caused him to lose a lawsuit he had filed against the United States. In that separate action, Anthony Prisco had alleged that his young daughter Lauren was admitted into the Federal Witness Protection Program and her identity changed without notice to him in violation of his state visitation and custody rights.*fn1 Because Prisco had not filed the prerequisite administrative claim, his Federal Tort Claims Act case was dismissed. Prisco sued his attorneys, alleging that the failure to file the claim was legal malpractice.

Ruling on a motion to dismiss, the district court held that Prisco would not have recovered on his legal malpractice action in any event because, applying the sovereign immunity provision of the Witness Security Reform Act of 1984 retroactively, the United States would have been entitled to sovereign immunity in the original suit. We must decide whether the district court erred in applying the sovereign immunity amendment, which became effective one year after Prisco's cause of action accrued.

Based on well-established standards of statutory construction, we hold that, with one clearly stated exception, the 1984 amendments do not apply to a cause of action which had accrued prior to the effective date of their enactment. Thus, the district court erred in applying the sovereign immunity provision to bar Prisco's claim of legal malpractice. We will thus vacate the order of the district court dismissing Prisco's malpractice suit and will remand to the district court for reinstatement of Prisco's complaint.


We have previously discussed at length the facts underlying Anthony Prisco's dispute with the United States Marshals Service.*fn2 A brief recitation would be helpful here.

After the sudden and unexplained disappearance of his former wife and their daughter Lauren, Anthony Prisco retained Dennis P. Talty, Esquire, to locate Lauren, with whom Prisco had an ongoing parental relationship despite the fact that Lauren resided with her mother.*fn3 Talty's investigation led to the discovery on December 5, 1983, that Lauren had been placed in the Witness Protection Program in September or October of 1983.*fn4

Talty then filed, on behalf of Prisco, a petition to suspend child support, a request for an order for contempt of visitation and for custody of Lauren. At hearings held in the Court of Common Pleas of Philadelphia County, Family Court Division, representatives of the U.S. Marshals Service testified that they had performed a detailed threat assessment before concluding that it was in Lauren's best interest to be admitted into the program.*fn5 Nonetheless, the government agreed to facilitate, and pay the expenses of, monthly visitation between Prisco and Lauren at a "neutral" site and under constant U.S. Marshal supervision.*fn6 Approximately three and one-half months had elapsed between the time Prisco had become aware of his daughter's absence and the time of the hearings.

Talty proceeded to file a complaint pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), 2671 et seq.,*fn7 on behalf of Prisco against the United States seeing injunctive and declaratory relief and money damages for interference with his state law rights.*fn8 In dismissing the complaint, the district court held that Prisco had failed to comply with the jurisdictional requirements of the FTCA by not filing an administrative claim with the relevant federal agency within the two year period required by the statute of limitations. 28 U.S.C. § 2401(b) (1988).*fn9

Following this dismissal, on November 20, 1991, Prisco filed a malpractice complaint against Talty and his partner, Glenn Zeitz, individually and as the partnership of Zeitz and Talty. Prisco sought compensatory and punitive damages for breach of contract and negligence constituting legal malpractice on the ground that Talty failed to file a timely administrative claim on his behalf, which would have been within two years after the date upon which he and counsel first learned that Lauren had been admitted into the Witness Protection Program.

The district court dismissed Prisco's case pursuant to Fed. R. Civ. P. 12(b)(6) in a Memorandum and Order dated June 23, 1992, holding that even if Prisco's counsel was negligent, Prisco's FTCA claim was barred by retrospective application of the sovereign immunity provision of the Witness Security Reform Act of 1984, a matter the court found to be supported by clear congressional intent. In response to Prisco's motion to reconsider, the court reaffirmed its prior decision, stressing that "it was an act of Congress, not his attorney's act or omission, which scuttled [Prisco's] claim for damages." Order dated July 27, 1992. Prisco appeals from this final order.

Although several issues are presented, we will consider only whether the Witness Security Reform Act of 1984's sovereign immunity provision should have been applied retroactively to Prisco's cause of action against the government. Given that the district court did not reach the substantive merits of the issues raised, we will not here decide those issues, but will confine our review to the narrow question of retroactivity in the context of the sovereign immunity amendment. Since this involves a legal question, our standard of review is plenary. Sames v. Gable, 732 F.2d 49, 51 (3d Cir. 1984); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748 , 97 S. Ct. 732 (1977).


The Witness Protection Program was established pursuant to Title V of the Organized Crime Control Act of 1970, Pub. L. No. 91-452, §§ 501-04, 84 Stat. 922, 933-34, codified at the note preceding 18 U.S.C. § 3481. As part of the Comprehensive Crime Control Act of 1984, Congress reenacted an expanded version of the statute as the Witness Security Reform Act of 1984, 18 U.S.C. §§ 3521-3528, adding the following sovereign immunity provision:

The United States and its officers and employees shall not be subject to any civil liability on account of any decision to provide or not to provide protection under [the Witness Protection Program].

18 U.S.C. § 3521(a)(3). The government alleges that this provision immunizes the federal government and its officers from the kind of damage claims asserted by Prisco in his FTCA suit. We hold, however, that it does not have any application to FTCA claims brought in the context of the administration of the Witness Protection Program which had accrued at the time of its enactment.


We note that the first maxim of statutory interpretation is that a statute's facial language is conclusive.*fn10 Consumer Product Safety Com. v. GTE Sylvania, Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766 , 100 S. Ct. 2051 (1980). We do not find an express general retroactivity provision in the Act, nor is there one attached to § 3521(a)(3). Congress merely provided that the enactment was to take effect on October 1, 1984, Pub. L. 98-473 § 1210.*fn11

In addition, Congress explicitly provided for limited retroactivity in another section of the Act, raising the inference that where Congress did not explicitly provide, it did not intend retroactivity. In enacting the Victims Compensation Fund, 18 U.S.C. § 3525, an amendment which also became effective as part of the Act on October 1, 1984, Congress set forth a qualified retroactivity clause which specifically extends the reach of its provisions to "crime occurring before the date of the enactment of this chapter," 18 U.S.C. § 3525(d). The House Report reflects the Committee's understanding that retroactive application of any of the Act's provisions is an exception necessitating explicit justification. The House Report states, with regard to the victims compensation provision:

This subsection also provides that the program shall be prospective in effect with one exception. It will be possible for the estate of victims of crimes resulting in death to receive compensation even if it preceded the effective date of the act. This narrow retroactive clause is limited to payments to $25,000. The Committee included provision for this narrow range of cases for two reasons. First, the evidence received by the Committee in connection with the murders, committed by protected witnesses . . ., established the case for Federal compensation. Second, without some authority for coverage here it is likely that private bills requesting an opportunity to sue the United States Government would face the Congress in the near term. Thus, the Committee concluded that retroactive treatment of this narrow range of cases was appropriate.

H.Rep. No. 767, 98th Cong., 2d Sess., Pt. I, at 28-29 (emphasis added and footnotes omitted).

Construing the Act as a whole, we find that § 3525(d) is an express limited exception to prospective only congressional intent. Where the manner of operation of a provision is expressly qualified, as in § 3525(d), an inference arises that the qualification is exclusive to that provision. N. Singer, Sutherland Stat. Const. § 47.23 (5th ed. 1992) ("Expressio unius est exclusio alterius"). Section 3525(d) contains the Act's sole express grant of retroactive power, and the specificity of the grant raises the implication that the Act is otherwise prospective in effect. In the absence of any strong indication of congressional intent which supports retroactive application of the Act, we find this implication persuasive.

Pre-enactment legislative history of the 1984 amendments provides further basis upon which we Judge congressional intent and confirms our Conclusion that § 3521(a)(3) must be applied prospectively. Particularly instructive is evidence on the evils Congress wished to ameliorate by the 1984 amendments. At the time the new legislation was proposed, Congress was well informed of the serious and recurring incidents of harm to innocent third parties caused by decisions to admit witnesses into the Witness Protection Program. Testimony before congressional sub-Committees regarding the proposed legislation repeatedly focused on the issue of remedying these harms, and this remedial intent is reflected in the Committee Reports. Notably, Congress devoted considerable attention to the program's interference with familial rights, especially the abrogation or diminution of state visitation and custody rights. See, e.g., Hearing before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the Committee on the Judiciary House of Representatives, 98th Cong., 1st Sess. on H.R. 3086, Witness Protection Act, June 22, 1983, p. 26 [House Hearing].*fn12

In response to this fundamental concern, the improvements made to the Witness Protection Program impose duties upon administrators of the program to facilitate the pursuit of claims and rights of third parties against program participants.*fn13 It is unlikely in the context of explicit intent and concrete action to alleviate harm to third parties that Congress would have intended retroactive sovereign immunity in cases where third party claimants could not benefit from other 1984 codifications or revisions aimed at their protection. Thus, we find that the legislative history harmonizes with other evidence of clear congressional intent to apply § 3521(a)(3) in a prospective manner.


We hold that Congress clearly expressed its general intent to authorize prospective only application of § 3521(a)(3) and the other 1984 provisions of the Act. Courts are obliged to implement the policy and intent of the legislature, and we believe that our holding furthers the purposes of the entire legislative scheme. A retrospective application of § 3521(a)(3) conflicts with congressional intent.

We express no opinion with regard to issues which may arise upon further prosecution of this case, including the ultimate viability of Prisco's FTCA cause of action, the merits of potential defenses,*fn14 the implications of relevant caselaw, and the form or measure of potential relief. We leave the Disposition of these issues in the first instance to the district court on remand.


For the foregoing reasons, we will vacate the order of the district court dated July 27, 1992, affirming its order of June 22, 1992, and remand to the district court for further proceedings.


We will vacate the order of the district court dated July 27, 1992, affirming its order of June 22, 1992, and remand to the district court for further proceedings.

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