United States v. B.C. Enterprises, Incorporated , 447 F. App'x 468 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1372
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
B.C. ENTERPRISES, INCORPORATED, d/b/a Aristocrat Towing;
ARISTOCRAT TOWING, INCORPORATED,
Defendants - Appellants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:08-cv-00590-RGD-DEM)
Submitted: August 18, 2011 Decided: August 29, 2011
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
S. Lawrence Dumville, Christopher D. Supino, NORRIS, ST. CLAIR &
LOTKIN, Virginia Beach, Virginia, for Appellants.
Thomas E. Perez, Assistant Attorney General, Dennis J. Dimsey,
Nathaniel S. Pollock, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
While U.S. Navy Lieutenant Yahya Jaboori was deployed to
Iraq, B.C. Enterprises, Inc. towed his car from a Virginia
apartment complex and sold it without a court order. The United
States sued B.C. Enterprises for violating the Servicemembers’
Civil Relief Act (SCRA), 50 U.S.C. App. § 537, and subsequently
discovered the company had done the same thing to upwards of
twenty other individuals serving in the military. B.C.
Enterprises moved to substitute the plaintiff, or alternatively,
to dismiss the case for lack of standing. The district court
denied the motion and ruled that the United States had a non-
statutory right to sue under the SCRA on behalf of
servicemembers. The parties filed cross motions for summary
judgment, and the district court granted the United States’
motion as to liability. B.C. Enterprises moved for dismissal
again on the grounds that the United States lacked authority to
sue for damages on behalf of servicemembers. The district court
denied B.C. Enterprises’ motion and held that “the government
has a non-statutory right to sue under the SCRA which is
supported by its strong interest in the national defense
. . . .” J.A. 108 (citations and quotations omitted). The
district court certified an order for interlocutory appeal
pursuant to 28 U.S.C. § 1292(b).
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This Court initially stayed B.C. Enterprises’ interlocutory
appeal pending our decision in Andre Gordon v. Pete’s Auto
Service of Denbigh, Inc., Case No. 09-2393, 2011 U.S. App. LEXIS
2816 (4th Cir. 2011). Just before oral argument in Gordon,
Congress amended the SCRA by enacting the Veterans Benefits Act
of 2010, Pub. L. No. 111-275, 124 Stat. 2864, 50 U.S.C. App.
§ 597. We ordered supplemental briefing in the present case and
now affirm the district court’s ruling.
This appeal presents a question of law that we review de
novo: whether the United States can sue for damages under the
SCRA, 50 U.S.C. App. § 537. “The Servicemembers Civil Relief
Act is part of a long record of congressional concern for the
domestic affairs of those in military service.” Gordon, 637
F.3d at 457. It was enacted “to provide for, strengthen, and
expedite the national defense” by protecting a variety of
servicemembers rights so they can “devote their entire energy to
the defense needs of the Nation.” 50 U.S.C. App. § 502(1).
While the law has been “reenacted . . . and expanded the Act
numerous times between 1942 and 2003,” Gordon, 637 F.3d at 458,
the relevant provision presently states that
A person holding a lien on the property or effects of
a servicemember 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.
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50 U.S.C. App. § 537(a)(1). The Veterans Benefits Act of 2010
further amended the SCRA to state that
The Attorney General may commence a civil action in
any appropriate district court of the United States
against any person who --
(1) engages in a pattern or practice of violating
this Act [50 U.S.C. App. §§ 501 et seq.]; or
(2) engages in a violation of this Act [50 U.S.C.
App. §§ 501 et seq.] that raises an issue of
significant public importance.
50 U.S.C. App. § 597(a). This amendment also described a range
of equitable, declaratory, and monetary relief. Id. at (b).
This case involves a straightforward application of Gordon,
which concerned whether the new amendments to the SCRA applied
retroactively. Gordon held that the amendments did “not alter
the rights, liabilities, or duties of” the litigants and were
“[i]n essence, [] a jurisdictional change,” that “merely
regulate[d] the secondary conduct of litigation and not the
underlying primary conduct of the parties.” Gordon, 637 F.3d at
461 (citations and quotations omitted). Therefore, Gordon
concluded, “[t]he presumption against retroactivity is [] not
triggered and on remand the district court should give effect to
Congress’s latest enactment.” Id. Here too, the amendments
apply to the current litigation, since they simply effect
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jurisdiction and recodify the government’s pre-existing right to
sue on behalf of servicemembers. *
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
*
As the district court rightly pointed out, our Court has
held that under the SCRA’s precursor, “the interest of the
national government in the proper implementation of its policies
and programs involving the national defense is such as to vest
in it the non-statutory right to maintain this action.” United
States v. Arlington County, 326 F.2d 929, 932-933 (4th Cir.
1964). Furthermore, the United States has repeatedly enforced
the SCRA and its predecessors in other jurisdictions and none
have held that the United States lacked authority to do so.
See, e.g., Sullivan v. United States, 395 U.S. 169 (1969);
United States v. Commonwealth of Puerto Rico, 478 F.2d 451 (1st
Cir. 1973); United States v. Champaign County, Illinois, 525
F.2d 374 (7th Cir. 1975); United States v. Kansas, 810 F.2d 935(10th Cir. 1987). Therefore, even without the new amendments to
the SCRA, the United States possessed a non-statutory right to
sue on behalf of servicemembers.
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