Anthony J. PRISCO, JR., Appellant, v. Dennis P. TALTY, Individually T/a Zeitz and Talty Glenn A. Zeitz, Esq., Individually T/a Zeitz and Talty

993 F.
2d 21
Anthony J. PRISCO, Jr., Appellant,

v.
Dennis P. TALTY, Individually t/a Zeitz and Talty; Glenn A.
Zeitz, Esq., Individually t/a Zeitz and Talty.
No. 92-1707.
United States Court of Appeals,

Third Circuit.
Argued Feb. 22, 1993.
Decided April 30, 1993.
Richard J. Silverberg (Argued), Richard J. Silverberg & Associates,

Philadelphia, PA, for appellant.
Richard L. Scheff (Argued), Montgomery, McCracken, Walker &
Rhoads, Philadelphia, PA, for appellees.
Before: SLOVITER, Chief Judge, BECKER and MANSMANN, Circuit
Judges.
OPINION OF THE COURT
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.1 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.
3
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.
I.
4
We have previously discussed at length the facts underlying Anthony Prisco's

dispute with the United States Marshals Service.2 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.3 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 1983.4
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.5 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.6 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.,7 on behalf of Prisco against the
United States seeking injunctive and declaratory relief and money damages for
interference with his state law rights.8 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).9
8
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.
10
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, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977).
II.
11
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:
12 United States and its officers and employees shall not be subject to any civil
The
liability on account of any decision to provide or not to provide protection under [the
Witness Protection Program].
13
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.
A.
14
We note that the first maxim of statutory interpretation is that a statute's facial
language is conclusive.10 Consumer Product Safety Com. v. GTE Sylvania,
Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (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 1210.11
15
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:
16
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.
17
H.Rep. No. 767, 98th Cong., 2d Sess., Pt. I, at 28-29 (emphasis added and
footnotes omitted).
18
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.
19
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].12
20
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.13 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.
B.
21
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.
22
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,14 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.
III.
23
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.
Prisco, et al. v. United States of America, Civil Action No. 85-6739

(E.D.Pa.1985)
Prisco v. United States Dept. of Justice, 851 F.2d 93 (3d Cir.1988), cert.
denied, 490 U.S. 1089, 109 S.Ct. 2428, 104 L.Ed.2d 985 (1989)
Upon Prisco's divorce from Lauren's mother, Maria, in March of 1983, he

entered into an agreement giving Maria custody. Prisco retained visitation
rights with child support obligations
Lauren entered the program with her mother and her mother's new husband,
who was cooperating with the government in the investigation of a criminal
conspiracy
Prisco denies that this hearing in connection with his petition constituted
procedural due process affording him a meaningful opportunity to protest
Lauren's admission into the Witness Protection Program. Some federal courts
have held that "post-deprivation" hearings satisfy due process in the context of
the Witness Protection Program in those instances where pre-entrance hearings
would have been impossible or would have seriously compromised the
government's ability to protect the witness. In such cases, however, a postdeprivation hearing is required to be held as soon as is practicable after
admission of the witness into the Program. See Franz v. United States, 707 F.2d
582, 609 (D.C.Cir.1983), supp. op. 712 F.2d 1428 (D.C.Cir.1983); Ruffalo v.
Civiletti, 702 F.2d 710, 715 (8th Cir.1983), on remand, 565 F.Supp. 34
(W.D.Mo.1983), later proceeding sub nom., Ruffalo v. United States, 590
F.Supp. 706 (W.D.Mo.1984). We further note that 18 U.S.C. 3524(c) obliges
the Attorney General to notify the non-relocated parent of the child's program
participation only after the child is relocated
6
Prisco apparently visited Lauren twice in 1984 under these conditions, but
discontinued visits, asserting that the abnormal conditions harmed Lauren and
their father/daughter relationship. Prisco continued to seek custody of Lauren
and in June of 1987, he was granted custody. The delay in this grant was caused
by the death of the judge handling the case and the subsequent reassignment of
the matter. The custody order was later vacated and in October of 1987, after
Maria and Lauren left the program, Maria and Prisco entered into a joint
custody agreement
Talty also brought a constitutional due process claim for damages against
several government officials under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619
(1971), which the district court dismissed for failure to adduce specific
evidence that any named individual federal agent had violated Prisco's
constitutional rights. Prisco appealed this dismissal, along with the dismissal of
his FTCA claim, which we affirmed without opinion. Prisco v. United States,
932 F.2d 960 (3d Cir.1991) (table). Prisco abandoned his Bivens claim at oral
argument in this current appeal
Under the FTCA the government or its agents are liable for injury they cause
by their "negligent or wrongful act or omission" if similar liability would attach
to a private person under state law. 28 U.S.C. 1346(b)
The district court also dismissed Prisco's claim for injunctive relief as moot
because Lauren was released from the Witness Protection Program in 1987
10
The general presumption against retroactivity for legislative acts, in the absence
of clear statutory language or congressional intent to the contrary, has been
called into question by two Supreme Court cases which appear to depart from
the weight of judicial precedent. See Thorpe v. Housing Authority of Durham,

393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969), and Bradley v. School Bd.,
416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). These cases have
generated considerable controversy in the federal courts. See Kaiser Aluminum
& Chemical Corp. v. Bonjorno, 494 U.S. 827, 840-58, 110 S.Ct. 1570, 14781588, 108 L.Ed.2d 842 (1990) (Scalia, J. concurring) (discussing recent
confusion regarding retroactivity as a general principle of statutory
interpretation). Nevertheless, it does remain settled that "where the
congressional intent is clear, it governs." 494 U.S. at 837, 110 S.Ct. at 1577
(Opinion of the Court). Here, because we believe that general principles of
statutory interpretation and other evidence of clear congressional intent
coalesce in favor of prospective only application of the immunity provision of
the Witness Security Reform Act, 18 U.S.C. 3521(a)(3), ascertainable
congressional intent governs our holding and we do not address the current
broader controversy
11
Section 1210 of Pub.L. 98-473 stated:

This subpart [subpart A of part F of chapter XII of Title II of Pub.L. 98-473,
enacting Chapter 224 of title 18, United States Code--Protection of Witnesses]
and the amendments made by this subpart [repealing provisions formerly set
out as a note preceding section 3481 of this title 18] shall take effect on October
1, 1984.
12
Hon. Robert Kastenmeier, the Chair of the Subcommittee, emphasized the

priority of addressing this particularly undesirable effect of decisions made
under the Witness Protection Program, indicating that third party rights are
one of the things that should be affected in one form or the other in the
legislation.
I would think that when, at the point a decision is made, as a general rule, that a
witness be entered into a program which involves his relocation, and possibly
an alias, that an inventory obviously be made of all the other persons affected-whether these be creditors or persons with visitation rights--and I would think it
would be a situation where those people would be made whole. They are
innocent and obviously they have the benefit of having in many cases court
orders stating what their rights are, that the people entering the program would
be wholly subject to the rights of others.
House Hearing at 29 (emphasis added).
13
For example, 18 U.S.C. 3524 codifies broad protections to non-relocated

parents, obligating the Attorney General to make pre-relocation assurances that
compliance with court custody and visitation orders can be achieved, to provide
written post-relocation notification of the child's program participation, and to
facilitate the exercise of the non-relocated parent's rights in other specified
ways. Additionally, 3524 provides the non-relocated parent a cause of action
in the district court against a protected parent who does not accede to the nonrelocated parent's rights, with disclosure of the protected parent's new identity
and address as the possible remedy
14
Because the parties address the issue of whether the discretionary function
exception to waiver of sovereign immunity under the FTCA bars Prisco's claim,
we note that our prior decision is relevant in this regard. Prisco v. United States
Dept. of Justice, 851 F.2d 93 (3d Cir.1988), cert. denied, 490 U.S. 1089, 109
S.Ct. 2428, 104 L.Ed.2d 985 (1989). There we concluded that the government's
conduct violated Prisco's clearly established constitutional due process rights.
We held that both Prisco's substantive liberty interest and his procedural
entitlement to notice and an opportunity to be heard were implicated when
Lauren was placed in the Witness Protection Program. 851 F.2d at 97-98
(citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71
L.Ed.2d 599 (1982) (infringement of parent-child relationship implicates
substantive due process); Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549,
554-55, 54 L.Ed.2d 511 (1978) (substantive due process); Ruffalo v. Civiletti,
702 F.2d 710 (8th Cir.1983), on remand, 565 F.Supp. 34 (W.D.Mo.1983), later
proceeding sub nom., Ruffalo v. United States, 590 F.Supp. 706
(W.D.Mo.1984) (non-relocated parent is entitled to procedural due process in
connection with child's placement in the FWPP); and Franz v. United States,
707 F.2d 582 (D.C.Cir.1983), supp.op., 712 F.2d 1428 (D.C.Cir.1983), on
remand, 591 F.Supp. 374 (D.D.C.1984) (procedural due process))
In other cases, we have held that governmental "conduct cannot be
discretionary if it violates the Constitution, a statute, or an applicable
regulation. Federal officials do not possess discretion to violate constitutional
rights or federal statutes." United States Fidelity & Guaranty Co. v. United
States, 837 F.2d 116, 120 (3d Cir.), cert. denied, 487 U.S. 1235, 108 S.Ct.
2902, 101 L.Ed.2d 935 (1988); see also Pooler v. United States, 787 F.2d 868,
871 (3d Cir.), cert. denied, 479 U.S. 849, 107 S.Ct. 175, 93 L.Ed.2d 111 (1986)
(federal officials do not possess discretion to violate constitutional rights or
federal statutes). Thus, the discretionary function exception to waiver of
sovereign immunity does not present a potential defense to Prisco's FTCA
claim.

Anthony J. PRISCO, JR., Appellant, v. Dennis P. TALTY, Individually T/a Zeitz and Talty Glenn A. Zeitz, Esq., Individually T/a Zeitz and Talty

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Anthony J. PRISCO, JR., Appellant, v. Dennis P. TALTY, Individually T/a Zeitz and Talty Glenn A. Zeitz, Esq., Individually T/a Zeitz and Talty

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993 F.

Anthony J. PRISCO, Jr., Appellant,

United States Court of Appeals,

Richard J. Silverberg (Argued), Richard J. Silverberg & Associates,

sovereign immunity provision of the Witness Security Reform Act of 1984

Based on well-established standards of statutory construction, we hold that,

We have previously discussed at length the facts underlying Anthony Prisco's

Talty then filed, on behalf of Prisco, a petition to suspend child support, a

Following this dismissal, on November 20, 1991, Prisco filed a malpractice

The district court dismissed Prisco's case pursuant to Fed.R.Civ.P. 12(b)(6) in a

The Witness Protection Program was established pursuant to Title V of the

Comprehensive Crime Control Act of 1984, Congress reenacted an expanded

18 U.S.C. 3521(a)(3). The government alleges that this provision immunizes

In addition, Congress explicitly provided for limited retroactivity in another

compensation. Second, without some authority for coverage here it is likely

Construing the Act as a whole, we find that 3525(d) is an express limited

Pre-enactment legislative history of the 1984 amendments provides further

In response to this fundamental concern, the improvements made to the

other 1984 codifications or revisions aimed at their protection. Thus, we find

We hold that Congress clearly expressed its general intent to authorize

Prisco, et al. v. United States of America, Civil Action No. 85-6739

Upon Prisco's divorce from Lauren's mother, Maria, in March of 1983, he

the weight of judicial precedent. See Thorpe v. Housing Authority of Durham,

Section 1210 of Pub.L. 98-473 stated:

Hon. Robert Kastenmeier, the Chair of the Subcommittee, emphasized the

For example, 18 U.S.C. 3524 codifies broad protections to non-relocated

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