The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_767/91_767.zc2

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SUPREME COURT OF THE UNITED STATES
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No. 91-767
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REPUBLIC NATIONAL BANK OF MIAMI, PETI-
TIONER v. UNITED STATES
on writ of certiorari to the united states court
of appeals for the eleventh circuit
[December 14, 1992]

  Justice Thomas, concurring in part and concurring in
the judgment.
  I cannot join the Court's discussion of jurisdiction
because that discussion is unnecessary and may very well
constitute an advisory opinion.  In my view, we should
determine the applicability of 1521 of the Housing and
Community Development Act of 1992, 106 Stat. ___.
Effective October 28, 1992, 1521 amended 28 U. S. C.
1355 to provide that -[i]n any case in which a final order
disposing of property in a civil forfeiture action or proceed-
ing is appealed, removal of the property by the prevailing
party shall not deprive the court of jurisdiction.-  106
Stat. ___.  The clear import of the new law is to preserve
the jurisdiction of a court of appeals in a civil forfeiture
action where the res has been removed by the prevailing
party-the very issue involved in this case.  This law
would appear by its plain terms to be dispositive of this
case, thus rendering academic the discussion in Part II of
the Court's opinion.
  The Court mentions 1521 in a single footnote, stating
simply that -we do not now interpret that statute or
determine the issue of its retroactive application to the
present case.-  Ante, at 9, n. 5.  As a general rule, of
course, statutes affecting substantive rights or obligations
are presumed to operate prospectively only.  Bennett v.
New Jersey, 470 U. S. 632, 639 (1985).  -Thus, congressio-
nal enactments . . . will not be construed to have retroac-
tive effect unless their language requires this result.-
Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 208
(1988).  But not every application of a new statute to a
pending case will produce a -retroactive effect.-
-[W]hether a particular application is retroactive- will
-depen[d] upon what one considers to be the determinative
event by which retroactivity or prospectivity is to be
calculated.-  Kaiser Aluminum & Chemical Corp. v.
Bonjorno, 494 U. S. 827, 857, and n. 3 (1990) (Scalia, J.,
concurring) (emphasis in original).
  In the case of newly enacted laws restricting or enlarg-
ing jurisdiction, one would think that the -determinative
event- for retroactivity purposes would be the final termi-
nation of the litigation, since statutes affecting jurisdiction
speak to the power of the court rather than to the rights
or obligations of the parties.  That conclusion is supported
by longstanding precedent.  We have always recognized
that when jurisdiction is conferred by an Act of Congress
and that Act is repealed, -the power to exercise such juris-
diction [is] withdrawn, and . . . all pending actions f[a]ll,
as the jurisdiction depend[s] entirely upon the act of
Congress.-  The Assessors v. Osbornes, 9 Wall. 567, 575
(1870).  -This rule-that, when a law conferring jurisdic-
tion is repealed without any reservation as to pending
cases, all cases fall with the law-has been adhered to
consistently by this Court.-  Bruner v. United States, 343
U. S. 112, 116-117 (1952).  See id., at 117, n. 8 (citing
cases).  Moreover, we have specifically noted that -[t]his
jurisdictional rule does not affect the general principle
that a statute is not to be given retroactive effect unless
such construction is required by explicit language or by
necessary implication.-  Ibid.
  The same rule ordinarily mandates the application to
pending cases of new laws enlarging jurisdiction.  We so
held in United States v. Alabama, 362 U. S. 602 (1960)
(per curiam).  There, the District Court had concluded
that it was without jurisdiction to entertain a civil rights
action brought by the United States against a State, and
the Court of Appeals had affirmed.  Id., at 603.  While
the case was pending before this Court, the President
signed the Civil Rights Act of 1960, which authorized such
actions.  Relying on -familiar principles,- we held that
-the case must be decided on the basis of law now control-
ling, and the provisions of [the new statute] are applicable
to this litigation.-  Id., at 604 (emphasis added) (citing
cases).  We therefore held that -the District Court has
jurisdiction to entertain this action against the State,- and
we remanded for further proceedings.  Ibid.  Similarly, in
Andrus v. Charlestone Stone Products Co., 436 U. S. 604
(1978), we held that because the general federal-question
statute had been amended in 1976 to eliminate the
amount-in-controversy requirement for suits against the
United States, -the fact that in 1973 respondent in its
complaint did not allege $10,000 in controversy is now of
no moment.-  Id., at 608, n. 6 (emphasis added).
  It could be argued that the language of 1521 implies
an earlier determinative event for retroactivity pur-
poses-such as the removal of the res or the point when
the final order disposing of the property -is appealed.-
106 Stat. ___.  I do not find these terms sufficiently clear
to overcome the general rule that statutes altering juris-
diction are to be applied to pending cases; I would there-
fore decide this case on the basis of the new law.  If the
Court is plagued with doubts about the -retroactive
application- of 1521, ante, at 9, n. 5, the Court should,
at a minimum, seek further briefing from the parties on
this question before embarking on what appears to me to
be an unnecessary excursion through the law of admiralty.
There is no legitimate reason not to take the time to do
so, for if the Government were to concede the new law's
applicability, the Court's opinion would be advisory.  I
can, therefore, concur only in the Court's judgment on the
issue of jurisdiction.
  I do, however, join the opinion of The Chief Justice
regarding the Appropriations Clause.  Because the Court
of Appeals retains continuing jurisdiction over this pro-
ceeding pursuant to 1521, we cannot avoid addressing
the Government's arguments on this issue.