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SCRA Fee Award Not ‘Retroactive’

An enlisted Navy seaman who sued Pete’s Auto Service for the loss of his 2002 Jeep Grand Cherokee, which Pete’s towed and sold while plaintiff was deployed, wins his case under the Servicemembers Civil Relief Act, and the Newport News U.S. District Court reserves for jury trial the amount of damages plaintiff may recover, and says he also is eligible for attorney’s fees.

On Oct. 13, 2010, the Veterans’ Benefits Act of 2010 was signed into law, amending the SCRA to expressly permit a private right of action for monetary damages, and to allow prevailing plaintiffs to recover litigation costs, including reasonable attorney’s fees. On Feb. 14, 2011, the 4th Circuit reversed and remanded this case, finding the amended statute was not impermissibly retroactive with respect to compensatory and punitive damages. The 4th Circuit declined to consider the availability of attorney’s fees under the new statute.

This court considers, as a matter of first impression, whether applying Section 802(b) to plaintiff’s claim for attorney’s fees would have retroactive effect. The court grants summary judgment to plaintiff with respect to defendant’s liability for reasonable attorney’s fees incurred by plaintiff for legal services performed after the enactment of § 802(b) on Oct. 13, 2010. Whether the prevailing plaintiff may be awarded reasonable attorney’s fees with respect to legal services performed before the October 2010 enactment of § 802(b) is a closer question.

Even before § 802(b) was enacted, this court had authority to award attorney’s fees to a prevailing plaintiff under the SCRA. Even in the absence of an implied right of action, this court had authority to award attorney’s fees under equitable principles. This court finds the attorney’s fees issue in this case is “collateral” and “uniquely separable” from the primary cause of action against the defendant, and that, even before the statute was enacted, this court had authority to award attorney’s fees to the plaintiff if he prevailed on his SCRA claim.

The court concludes as a matter of law that the application of § 802(b) of the SCRA, permitting recovery of reasonable attorney’s fees by a prevailing party under § 802(a), in this action is not impermissibly retroactive.

The court will grant summary judgment to plaintiff with respect to defendant’s liability for reasonable attorney’s fees incurred by plaintiff for legal services performed before enactment of § 802(b). A subsequent motion for attorney’s fees is necessary.

Gordon v. Pete’s Auto Service of Denbigh Inc. (Stillman) No. 4:08cv124, March 12, 2012; USDC at Newport News, Va.; Rebecca S. Colaw for plaintiff; Richard H. Roston for defendant. VLW 012-3-101, 26 pp.

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