Carl McMichael v. United States

ORDER Before JOHN R. GIBSON, Circuit Judge, BRIGHT, Senior Circuit Judge, and MAGILL, Circuit Judge. The motion of the United States to vacate the judgment in favor of plaintiff-ap-pellee Billy Harrison is before the court. The motion is based on the failure of the notice of appeal to include Harrison’s name and the issuance of the recent opinion of the Supreme Court in Torres v. Oakland Scavenger Company, et al., — U.S. —, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988). This issue was presented to the court before. See Harrison v. United States, 715 F.2d 1311 (8th Cir.1983). Pursuant to the opinion issued at that time, an order was entered that the notice of appeal be amended to include Billy Harrison. Materials have been filed with the court revealing that the parties have stipulated the amount of damages of some of the appellees, expressly stating that the government’s right to appeal a liability issue was not waived. Ordinarily a procedural change in the law, such as announced in Torres, is not given retroactive application. Particularly under the circumstances presented in this case, we decline to do so. The motion to vacate the judgment as to plaintiff-appellee Billy Harrison is denied.