Rodriguez v General Motors Corporation Supplemental Brief of Appellees

    No. 91-55170

IN THE UNITED STATES COURT CF APPEALS 

FOR THE NINTH CIRCUIT

CLAUDE RODRIGUEZ, JR., ET AL. 

Plaintiffs,

LEROY GIBBS,

Plaintiff and Appellant, 

versus

GENERAL MOTORS CORPORATION, ET AL., 

Defendants and Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE CENTRAL DISTRICT OF CALIFORNIA 

THE HONORABLE AliCEMARIE H. STOTLER, PRESIDING 
CASE NO. 85-4725-AHS

SUPPLEMENTAL BRIEF OF APPELLEES

ANDREW C. PETERSON 
STEPHEN L. BERRY
PAUL, HASTINGS, JANOFSKY & WALKER 
555 South Flower Street 
Twenty-Third Floor 
Los Angeles, California 90071
(213) 683-6000

Attorneys for Defendants and Appellees 
GENERAL MOTORS CORPORATION, ET AL.



TABLE OF CONTENTS

Page
l

I. PRELIMINARY STATEMENT AND SUMMARY OF ARGUMENT . . . .  1

n. THE PLAIN LANGUAGE OF THE CRA IS CONCLUSIVE -  IT 
REQUIRES THAT THIS CASE BE DECIDED ON THE PRE-CRA 
LAW .....................................................................................................................  2

A. The Plain Meaning Of Section 402(a) Is That The CRA
Does Not Apply To Pre-Act Cases Or C onduct......................................  2

B. Other Provisions Of The CRA Confirm That Section 402(a)
Allows Only Prospective Application Of The New L a w ......................... 4

C. Congress Knows How To Say That A Law Is Retroactive; It Did
Not Do So In The CRA ............................................................................  5

D. The Plain Meaning Of Section 402(a) Should Not Be Disregarded
Based On Two Provisions Included In The CRA Only Out Of An 
Abundance Of C au tion ...............................................................................  7

ED. THE LEGISLATIVE HISTORY AND DEBATES COMPEL THE
CONCLUSION THAT THE CRA DOES NOT APPLY TO PRE-ACT 
CASES AND CONDUCT....................................................................................... 12

i A. Congress’ Rejection Of Provisions Providing For
Retroactive Application Of The Act Compels The 
Conclusion That Congress Intended The CRA To Apply

j Prospectively O nly....................................................................................... 12{
B. The Comments Of The CRA’s Chief Sponsor And Other 

j Key Figures Demonstrate That The Act Was Intended To
Be Prospective............................................................................................... 14

IV. THE CRA APPLIES PROSPECTIVELY EVEN IF THE COURT 
WERE TO BELIEVE THAT THE STATUTE’S LANGUAGE AND 
LEGISLATIVE HISTORY ARE UNCLEAR.....................................  18

5
A. The Normal Presumption Against Retroactivity, Reaffirmed 

By The Supreme Court In Bowen, Should Be Applied In 
This Case; Under That Test, The CRA Applies
Prospectively O nly..........................................................................................20

J

1. The Supreme Court’s decisions disfavor retroactivity.......................20

2. This Court’s decisions similarly disfavor retroactivity.......................22
i

3. Applying the longstanding *est -  under which statutes apply 
prospectively only in the absence of specific action by 
Congress to make them retroactive — the CRA is
prospective............................................................................................ 24

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Page

B. Even If Bradley Retains Some Vitality In Some Contexts, It 
Does Not Support Retroactive Application Of The CRA,
Which Creates Substantial New Liabilities For Pre-Act
C onduct..........................................................................................................25

1. Congressional in te n t ............................................................................ 25

2. "Manifest injustice."............................................................................ 25

a. The nature and identity of the parties .....................................26

b. The nature of the rights between the p a r t ie s ............................26

c. The nature of the impact of the change in law
upon those rights .......................................................................27

C. This Court Has Synthesized The Supreme Court’s Principles
On Retroactive Application Of New Legislation Into A Test 
Of Its Own; Under This Test As Well, The CRA Applies 
Prospectively O nly..........................................................................................30

D. No Presumption Favoring Retroactivity Arises Out Of The 
Purportedly "Restorative" Nature Of The Civil Rights Act
Of 1991 ..........................................................................................................34

1. There is no presumption favoring retroactivity for
"restorative" statutes............................................................................ 35

2. The CRA is not a "restorative" statute in any e v e n t...........................37

V. THE SUPREME COURT’S PATTERSON DECISION GOVERNS
THIS C A S E ............................................................................................................ 40

VI. CONCLUSION.......................................................................................................41

-it-



TABLE OF AUTHORITIES

Cases Paget' s')

ALPO Petfoods. Inc, v. Ralston Purina Co..
913 F.2d 958 (D.C. Cir. 1990) ....................................................................... 22, 30

Avala-Chavez v. United States.
945 F.2d 288 (9th Cir. 1991) ...............................................................................22

Avers v. Allain.
893 F.2d 732 (5th Cir. 1990), vacated.
914 F.2d 676 (1991) (en banc) .......................................................................37, 39

Bennett v. New Jersey.
470 U.S. 632 (1985)   29

Bess v. Bess.
929 F.2d 1332 (8th Cir. 1991) ............................................................................ 29

Bowen v. Georgetown Univ. Hosp..
488 U.S. 204 (1988) ...............................................................................  18, 21, 24

Bradley v. Richmond School Bd..
416 U.S. 696 (1974) ...............................................................................  19, 20, 21,

25, 26, 27

Brock v. Pierce County.
476 U.S. 253 (1986)   18

Brooms v. Regal Tube Co..
881 F.2d 412 (7th Cir. 1989) .............................................................................. 41

Bryant v. Ford Motor Co..
886 F.2d 1526 (9th Cir. 1989), cert, denied.
493 U.S. 1076 (1990) ............................................•............................................32

California Save Our Streams Council. Inc, v. Yeutter.
887 F.2d 908 (9th Cir. 1989) ..................................................................................2

Chevron Oil Co. v. Huson.
404 U.S. 97 (1971) ..............................................................................................  41

Condit v. United Air Lines. Inc..
631 F.2d 1136 (4th Cir. 1980) ...............................................................................3

Cooper Stevedoring. Inc, v. Washington.
556 F.2d 268 (5th Cir. 1977) ............................................................................... 30

Criger v. Becton.
902 F.2d 1348 (8th Cir. 1990) ............................................................................  22

- i i i -

!



Cases Page(s)

DeVargas v. Mason & Hanger-Silas Mason Co..
911 F.2d 1377 (10th Cir. 1990), cert, denied.
I l l  S. Ct. 799 (1991) ............................................................................  22,24,35,

36

Delta Computer Corp. v. Samsung Semiconductor & Telecomms. Co..
879 F.2d 662 (9th Cir. 1989) ...............................................................................  32

Doe v. Board of Countv Comm’rs.
783 F. Supp. 1379 (S.D. Fla. 1992) ......................................................  27, 28, 33,

40

F.F.OC v. Arabian American Oil Co..
___U .S .___ , 111 S. Ct. 1227 (1991) ..................................................................7

F.F.OC v Commercial Office Prods. Co..
486 U.S. 107 (1988) ............................................................................................. 16

Federal Deposit Ins. Corp. v. New Hampshire Ins. Co..
953 F.2d 478 (9th Cir. 1991), amended.
1992 U.S. App. LEXIS 2372 (1992)....................................................................  32

Federal Energy Adm. v. Algonquin SNG. Inc..
426 U.S. 548 (1976) .......................................................................................  13, 15

Fray v. Omaha World Herald Co..
_ F.2d , Nos. 91-2439, 91-2443 and 91-2713,

1992 W L‘65663 (8th Cir. Apr. 3, 1992) ...............................................................1

Friel v. Cessna Aircraft Co..
751 F.2d 1037 (9th Cir. 1985) ............................................................... 29, 31, 32

Futch v. Stone.
782 F. Supp. 284 (M.D. Pa. 1992) ....................................................................  30

Gonzalez v. Aloha Airlines. Inc..
940 F.2d 1312 (9th Cir. 1991) .............................. *............................................ 32

Goodman v. Lukens Steel Co..
482 U.S. 656 (1987) ............................................................................................  41

Griggs v. Duke Power Co..
401 U.S. 424 (1971) ............................................................................................  37

Grove City College v. Bell.
465 U.S. 555 (1984) ............................................................................................  39

Gulf Oil Corp. v. Copp Paving Co..
419 U.S. 186 (1974) ............................................................................................... 7

In re Pacific Far East Lines. Inc..
889 F.2d 242 (9th Cir. 1989) ...............................................................................  32



Cases Paee( s)

In re Resolution Trust Corp..
888 F.2d 57 (8th Cir. 1989), appeal dismissed.
901 F.2d 694 (1990) ............................................................................................. 29

In re Reynolds.
726 F.2d 1420 (9th Cir. 1984) ............................................................................... 4

International Union of Elec. Workers. Inc, v. Robbins & Myers, Inc..
429 U.S. 229 (1976) ............................................................................................... 5

Johnson v. Rice.
F. Supp. , 58 FEP Cases (BNA) 31

(S.D. Ohio Jan. 24, 1992) ....................................................................................  32

Kaiser Aluminum & Chem. Corp. v. Boniomo.
494 U.S. 827 (1990) ..................................................................................2 ,21 ,22 ,

34, 42

Kimble v. DPCE. Inc..
F. Supp. , 58 FEP Cases (BNA) 237

(E.D. Pa. Feb. 13, 1992) ....................................................................................... 4

Leake v. Long Island Jewish Medical Center.
695 F. Supp. 1414 (E.D.N.Y. 1988), affd,
869 F.2d 130 (2d Cir. 1989) .......................................................................... 37, 39

Leland v. Federal Ins. Adm’r .
934 F.2d 524 (4th Cir.),
cert, denied. 112 S. Ct. 417 (1991) .................................................................... 30

Lussier v. Dugger.
904 F.2d 661 (11th Cir. 1990) .......................................................................  37, 39

Maddox v. Norwood Clinic. Inc..
783 F. Supp. 582 (N.D. Ala. 1992) ....................................................................  14»

Marburv v. Madison.
5 U.S. (1 Cranch) 137 (1 8 0 3 ).......................................................................... 35, 40

Martin v. Wilks.
490 U.S. 775 (1989) ............................................................................................  13

Matthews v. Freedman.
882 F.2d 83 (3d Cir. 1989) ................................................................................  40

McCullough v. Consolidated Rail Coro..
_ F. Supp. , No. 91-0363-A,

1992 WL 41489 (N.D. 111. Mar. 3, 1992) ............................................ 24, 25, 39

McLaughlin v. New York.
784 F. Supp. 961 (N.D.N.Y. 1992) ....................................................................  21

-v-



Cases Page(s~)

Mozee v. American Commercial Marine Serv. Co..
_ F .2d___, 1992 U.S. App. LEXIS 9857

(7th Cir. May 7, 1992) ............................................................................... 1, 8, 11,
24, 34

Mrs. W. v. Tirozzi.
832 F.2d 748 (2d Cir. 1987) ...............................................................................  37

NLRB v. Fruit & Vegetable Packers & Warehousemen.
377 U.S. 58 (1964) ...............................................................................................  13

Nationwide Mut. Ins. Co. v. Darden.
_ U . S .__ , 112 S. Ct. 1344 (1992) ............................................................... 17

Nelson v. Ada.
878 F.2d 277 (9th Cir. 1989) .........................................................................  23, 30

Nichols v. Stapleton.
877 F.2d 1401 (9th Cir. 1989) ............................................................................  32

North Haven Bd. of Educ. v. Bell.
456 U.S. 512 (1982) ............................................................................................  13

Northern Mariana Islands v. Kawano.
917 F.2d 379 (9th Cir. 1990), cert denied.
I l l  S. Ct. 1116 (1991) ..........................................................................................32

Oscar Maver & Co. v. Evans.
441 U.S. 750 (1979) ............................................................................................  16

Overby v. Chevron USA. Inc..
884 F.2d 470 (9th Cir. 1989) ............................................................................... 40

Patterson v. McLean Credit Union.
491 U.S. 164 (1989) ...............................................................................................2

t
Patterson v. McLean Credit Union.

784 F. Supp. 268 (M.D.N.C. 1992) .......................................................  3, 26, 27,
28

Percell v. International Business Machines Corp..
_ F. Supp. , No. 90-538-CIV-5-D,

1992 WL 46478 (E.D.N.C. Feb. 28, 1992) ......................................................  21

Perrin v. United States.
444 U.S. 37 (1979) ..................................................................................................2

Price Waterhouse v. Hopkins.
490 U.S. 228 (1989) ............................................................................................  27

Ribando v. United Airlines. Inc..
F. Supp. , 90 C 5904,

1992 WL 55194 (N.D. El. Mar. 20, 1992) ......................................................  24

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Cases P a g e ^

Risinger v. Ohio Bureau of Workers’ Compensation.
883 F.2d 475 (6th Cir. 1989) .............................................................................  41

Rodriguez v. General Motors Corp..
No. 88-6230 (9th Cir., unpubliiued opinion
filed June 6, 1990) ...............................................................................................  40

Sargisson v. United States.
913 F.2d 918 (Fed. Cir. 1990) ............................................................................  22

Sierra Medical Ctr. v. Sullivan.
902 F.2d 388 (5th Cir. 1990) ...............................................................................  30

Simmons v. Lockhart.
931 F.2d 1226 (8th Cir. 1991) ............................................................................ 30

Solem v. Stumes.
465 U.S. 638 (1984) ............................................................................................. 41

Steinle v. The Boeing Co..
_ F. Supp.__ , 1992 WL 45400

(D. Kan. Feb. 26, 1992) ..........................................................................................4

Thompson v. Johnson & Johnson Management Info. Ctr..
783 F. Supp. 893 (D.N.J. 1992) ....................................................................... 8, 11

Tonev v. Alabama.
784 F. Supp. 1542 (M.D. Ala. 1992) ............................................................  27, 39

Union Pac. R.R. Co. v. Laramie Stock Yards Co..
231 U.S. 190 (1913) .............................................................................................21

United States v. Bekhrad.
672 F. Supp. 1529 (S.D. Iowa 1987) .................................................................  33

United States v. Femandez-Toledo.
749 F.2d 703 (11th Cir. 1985) ............................................................................  33

United States v. Murphy.
937 F.2d 1032 (6th Cir. 1991) ............................................................................ 29

United States v. Security Indus. Bank.
459 U.S. 70 (1982) ...............................................................................................  20

United States Fidelity & Guar. Co. v.
United States ex rel. Struthers Wells Co..

209 U.S. 306 (1908)...............................................................................................  20

Van Meter v. Barr.
778 F. Supp. 83 (D.D.C. 1991) .......................................................................4, 30

-vn-



Vogel v. Cincinnati.
___F .2 d___ , 58 FEP Cases (BNA) 402
(6th Cir. 1992) ............................................................................................................ 1

Wards Cove Packing Co. v. Atonio.
490 U.S. 642 (1989)  7,38

West v. Pelican Management Servs. Corp..
782 F. Supp. 1132 (M.D. La. 1992) ............................................................  14, 30

White v. United States.
191 U.S. 545 (1903)   20

Other Authorities

136 Cong. Rec. H364, S991 (Feb. 7, 1990)   12

136 Cong. Rec. H9,554 (daily ed. Oct. 12, 1990) ............................................................6

136 Cong. Rec. S16,562 (daily ed. Oct. 24, 1990) ............................................ 6, 7, 12

137 Cong. Rec. H9,512 (daily ed. Nov. 7, 1991) ....................................................... 10

137 Cong. Rec. S15,478 (daily ed. Oct. 30, 1991) .................................................  14, 16

137 Cong. Rec. S 15,483 (daily ed. Oct. 30, 1991) ............................................ 9, 14, 17

137 Cong. Rec. S15,485 (daily ed. Oct. 30, 1991) .................................................  15, 17

137 Cong. Rec. S15,493 (daily ed. Oct. 30, 1991) ......................................................... 9

137 Cong. Rec. S15,953 (Nov. 5, 1991) ................................................................. 10, 16

137 Cong. Rec. S15,966 (daily ed. Nov. 5, 1991) . . . .   10

137 Cong. Rec. S6,997, S7,020 (daily ed. June 4, 1991)   13

137 Cong. Rec. S8,984 (daily ed. June 27, 1991) ......................................................  13

1990 Act. 137 Cong. Rec. H53 (daily ed. Jan. 3, 1991) ..............................................  12

42 U.S.C. § 1981 .......................................................................................................... 1,26

Black Lung Benefits Reform Act of 1977,
30 U.S.C. § 945(a)(1), (c) (West 1 9 8 6 ) ................................................................. 5

Federal Home Loan Bank Act, 12 U.S.C. § 1439a
(West 1989 & Supp. 1992) .................................................................................... 5

Alexander Hamilton, The Federalist No. 78
(H. Commager ed. 1949) .................................................................................................. 35

Cases Pagers')

-viii-



2A Norman J. Singer, Sutherland Statutory Construction
§ 46.06 (5th ed. 1992) ....................................................................................................... 5

1 Daily Lab. Rep. (^NA) (Jan. 2, 1992) ......................................................... ..  15 16

226 Daily Lab. Rep. (BNA) (Nov. 22, 1991) ............................................................... 11

Page(s)



PRELIMINARY STATEMENT AND SUMMARY OF ARGUMENT

Appellant Leroy Gibbs (hereinafter "Gibos") asks tnis Court to do what 

Congress could have done, but declined to do: make retroactive the far-reaching 

substantive changes wrought by the Civil Rights Act of 1991 (hereinafter the "CRA" or 

"Act"). Three courts of appeals have considered this issue as of the date this brief is 

submitted; all three have rejected Gibbs’ position. Mozee v. American Commercial Marine

Serv. Co.. ___F .2d___ , No. 90-2660, 1992 U.S. App. LEXIS 9857 (7th Cir. May 7,

1992); Fray v. Omaha World Herald Co.. __ F.2d___ , Nos. 91-2439, 91-2443 and

91-2713, 1992 WL 65663 (8th Cir. Apr. 3, 1992); Vogel v. Cincinnati. ___F .2d___ , 58

FEP Cases (BNA) 402 (6th Cir. Mar. 13, 1992).

In light of the statutory language, legislative history and debates, it does not 

matter which of the various tests used by courts for deciding whether or not to apply new 

legislation retroactively. Under any test, the result is the same: the CRA does not confer 

upon Gibbs retroactive rights under the sole statute upon which his lawsuit is based, 42 

U.S.C. § 1981 (hereinafter "Section 1981").

Section II of this Supplemental Brief demonstrates that the Court need not 

look beyond the face of the CRA to rule that the Act applies prospectively; the plain 

meaning of the language compels this conclusion.

Section in analyzes the legislative history and debates in connection with the 

CRA, and provides further proof that Congress clearly intended what the express language 

of the CRA says: that the la ’ was not to be applied to pre-Act cases or conduct.

I.

-1-



Section IV considers each of the legal tests that have been articulated for 

resolving retroactivity questions and demonstrates that, in light of the statutory text, 

drafting history and legislative debates, the CRA does not apply retroactively to pre-Act 

cases such as this one.

Finally, in Section V, this Supplemental Brief considers and disposes of 

Gibbs’ last argument: that this Court should disregard the decision of the Supreme Court in 

Patterson v. McLean Credit Union. 491 U.S. 164 (1989), and the decisions of this Court 

applying Patterson retroactively.

n.
THE PLAIN LANGUAGE OF THE CRA IS CONCLUSIVE -  IT 

REQUIRES THAT THIS CASE BE DECIDED ON THE PRE-CRA LAW

A. The Plain Meaning Of Section 402(al Is That The CRA Does Not Apply To 

Pre-Act Cases Or Conduct.

Under well-established principles of statutory construction, "[t]he starting 

point for interpretation of a statute ‘is the language of the statute itself. Absent a clearly 

expressed legislative intention to the contrary, that language* must ordinarily be regarded as 

conclusive.”’ Kaiser Aluminum & Chem. Corp. v. Boniomo. 494 U.S. 827, 835 (1990) 

(quoting Consumer Prod. Safety Comm’n v. GTE Svlvania. Inc.. 447 U.S. 102, 108 

(1980)). Moreover, when construing the language of a statute, the federal courts rely on 

the "plain meaning" of the words. See Perrin v. United States. 444 U.S. 37, 42 (1979) 

("A fundamental canon of statutory construction is that, unless otherwise defined, words 

will be interpreted as taking their ordinary, contemporary, common meaning. . . ."); 

California Save Our Streams Council. Inc, v. Yeutter. 887 F.2d 908, 911 (9th Cir. 1989) 

(same).

-2-



At issue in this appeal is whether Section 101 of the CRA, which expands the 

substantive coverage of Section 1981 beyond its prior limits,- should be applied 

retroactively to already-decided cases pending on appeal, such as this one. To answer this 

question, the Court must 'ooV to Section 4P?(a), which states

Except as otherwise specifically provided, this Act and the 

amendments made by this Act shall take effect upon enactment.

[Emphasis added.]

Based on the commonly understood definition of the phrase "take effect,"-' "[t]he plain 

meaning of this statute is that the [CRA] had no effect prior to November 21, 1991." 

Patterson. 784 F. Supp. at 274 (concluding that the CRA does not apply retroactively to 

revive a defective claim under Section 1981 for discriminatory denial of promotion). Since 

the language of Section 402(a) expressly provides for prospective — rather than retroac­

tive — application, this Court need look no further than the face of the Act to conclude that 

it does not apply retroactively to revive Gibbs’ claim. See, e.g.. Condit v. United Air 

Lines. Inc.. 631 F.2d 1136, 1140 (4th Cir. 1980) (amendment to Title VII prohibiting 

pregnancy discrimination, which provided that the law shall become "effective on the date

- In relevant part, Section 101 provides: "For purposes of [Section 1981], the term ‘make 
and enforce contracts’ includes the making, performance, modification, and termination of 
contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the 
contractual relationship."

- "Black’s Law Dictionary defines the phrase ‘take effect’ to mean ‘to become operative or 
executed. To be in force, or go into operation’ . . . Webster’s Dictionary defines the 
phrase ‘take effect’ to mean ‘to become operative . . .  to produce a result’ . . Thus, in 
both the lawyer’s and layperson’s dictionaries, the phrase ‘take effect’ denotes a beginning 
point from which action will occur, a starting point prior to which the contemplate action 
did not occur. " Patterson v. McLean Credit Union. 784 F. Supp. 268, 273-74 (M.D.N.C. 
1992) (emphasis added; citations omitted).

-3-



of enactment," was prospective only, even though the amendment expressly was "intended 

to change Title VII as it had been interpreted by the Supreme Court").-

B. Other Provisions Of The CRA Confirm That Section 402(a) Allows 

Only Prospective Application Of The New T.aw

Even if there were any doubt about the plain meaning of the phrase "take 

effect upon enactment" as used in Section 402(a), other provisions of the CRA remove that 

doubt. For example, Section 110 directs the EEOC to establish a "Technical Assistance 

Training Institute." Like Section 402(a), Section 110(b) states: "The amendment made by 

this section shall take effect on the date of enactment of this Act" (emphasis added). 

Because Section 110 by definition is establishing something new, the phrase "take effect on 

the date of enactment" must be prospective in nature; it is logically impossible for the 

Training Institute to have been created retroactively.- See Steinle v. The Boeing Co..

- In re Reynolds. 726 F.2d 1420 (9th Cir. 1984), relied upon by Gibbs, does not stand 
for the proposition that the plain meaning of the phrase "take effect upon enactment" 
requires retroactive application. And, in any event, Reynolds is inapposite. In 1974, 
Congress had enacted legislation prohibiting the discharge of child support obligations in 
bankruptcy proceedings. Thereafter, in 1978, that law was repealed. However, in 
amending the bankruptcy laws again in 1981, Congress among other things reinstituted the 
prohibition against the discharge of child support obligations in bankruptcy proceedings. 
Significantly, while all other changes made by the 1981 amendments were to become 
effective October 1, 1981, the provision concerning child support obligations was made 
effective immediately — August 13, 1981. This Court’s decision applying the amendment 
retroactively was based on an explicit finding that "Congress must have intended that this 
legislation should be applied to pending cases." Id. at 1423.

- Section 102(a) is yet another example. That section provides that only a "complaining 
party" may seek compensatory and punitive damages and a jury trial under the CRA’s 
amendments to Title VII. Section 102(d) defines a "complaining party" as the "EEOC, the 
Attorney General, or a person who may bring an action or proceeding under Title
VII . . . ." (emphasis added). This language clearly contemplates that the Act applies only 
to those who had not yet brought an action as of the date the new amendments were signed
into law. See Kimble v. DPCE. Inc.. __ F. Supp.___ , 58 FEP Cases (BNA) 237, 238
(E.D. Pa. Feb. 13, 1992) (language of Section 102(d) suggests "a prospective application" 
of the CRA); Van Meter v. Barr. 778 F. Supp. 83, 85 (D.D.C. 1991) (same). [All 
recently issued decisions relied upon herein are to be published in the Federal Reporter or 
the Federal Supplement. For each decision which is not yet available in West’s official

(continued...)

-4-



__ F. Supp.___ , No. 90-1337-C, 1992 WL 45400, at *3 (D. Kan. Feb. 26, 1992)

(Section 110(b) suggests that the CRA was intended to apply prospectively only). It would 

make no sense to conclude that Congress intended the same words to have different 

meanings when used In different parts of the same statute. Indeed, under we^-establisLed 

rules of construction "[t]here is a presumption that the same words used twice in the same 

act have the same meaning." 2A Norman J. Singer, Sutherland Statutory Construction

§ 46.06, at 120 (5th ed. 1992) (hereinafter "Sutherland § ____"). Accordingly, this Court

should conclude that Section 402(a), like Section 110(b), is to apply only prospectively.

C. Congress Knows How To Say That A T^w Is Retroactive: It Did Not Do So

In The CRA.

Where Congress has intended to make legislation retroactive, it has had no 

difficulty finding the right words. See, e.g.. Black Lung Benefits Reform Act of 1977, 30 

U.S.C. § 945(a)(1), (c) (West 1986) (providing for processing of benefits claims "pending 

on, or denied on or before" the effective date of the statute, and awarding benefits "on a 

retroactive basis"); Federal Home Loan Bank Act, 12 U.S.C. § 1439a (West 1989 & Supp. 

1992) ^providing that monies deposited under the terms of the statute shall be available 

"retroactively as well as prospectively"). Indeed, Congress has demonstrated specifically in 

certain civil rights legislation that it is capable of making a statute retroactive — if it so 

intends. See, e.g.. International Union of Elec. Workers. Inc, v. Robbins & Mvers. Inc.. 

429 U.S. 229, 241 (1976) (180-day charge filing period established by 1972 amendments to 

Title VII applies to pending cases; the statute explicitly stated, "‘[T]he amendments made 

by this Act . . . shall be applicable with respect to charges pending with the Commission on

- (...continued)
advance sheets, a copy is included in the Addendum hereto for the convenience of the 
Court.]

-5-



the date of enactment of this Act and all charges filed thereafter . . . (quoting Section 

14 of the Equal Employment Opportunity Act of 1972).

Thaf Congress knowingly declined to make the CRA retroactiv e is 

underscored by the comprehensive retroactivity provisions in the vetoed Civil Rights Act of 

1990. Section 15 of the Civil Rights Act of 1990 provided, in part, as follows:

(1) Section 4 shall apply to all proceedings pending on or 

commenced after June 5, 1989;

(2) Section 5 shall apply to all proceedings pending on or 

commenced after May 1, 1989;

(3) Section 6 shall apply to all proceedings pending on or 

commenced after June 12, 1989;

(4) Sections 7(a)(1), 7(a)(3), and 7(a)(4), & (b), 8, 9, 10, and 11 

shall applj  to all proceedings pending on or commenced after 

the date of enactment of this Act;

(5) Section 7(a)(12) shall apply to all proceedings pending on or 

after June 12, 1989; and

(6) Section 12 shall apply to all proceedings pending on or 

commenced after June 15, 1989.

See 136 Cong. Rec. H9,554 (daily ed. Oct. 12, 1990). President Bush cited these "unfair 

retroactivity rules" as one of his reasons for vetoing that bill. See 136 Cong. Rec. S 16,562

-6-



(daily ed. Oct. 24, 1990).-' The President’s 1990 veto of the explicitly retroactive bill 

prompted Congress to expunge any comparable retroactivity scheme from the 1991 CRA. 

This drafting history serves as perhaps the most telling evidence that retroactivity was not 

intended. See, e.g.. Gulf Oil Corp. v. Copp Paving Co.. 419 U.S. 186 200 (1974  ̂

(Congress’ deletion of provision from version of bill enacted into law, "strongly militates 

against a judgment that Congress intended a result that it expressly declined to enact").

D. The Plain Meaning Of Section 402(a~) Should Not Be Disregarded Based On 

Two Provisions Included In The CRA Only Out Of An Abundance Of 

Caution.

Gibbs’ argument relies primarily on two provisions of the CRA, Sections 

109(c)^ and 402(b),1' which expressly prohibit retroactive application of certain of the

- Gibbs attempts to belittle the significance of Congress’ deletion of the retroactivity 
provisions from the 1991 bill by arguing that the President’s only objection to retroactivity 
in 1990 was with respect to cases that had been "finally decided." Appellant’s 
Supplemental Brief (hereinafter "App. Supp. Br.") at pp. 13-14. This argument is incorrect 
and unavailing to Gibbs in any event. In his veto message, President Bush did not 
distinguish between cases "already decided" and cases that had been filed but were not yet 
decided. See 136 Cong. Rec. S 16,562 (daily ed. Oct. 24, 1990). Indeed, as Gibbs 
concedes, the Administration had proposed alternative legislation expressly providing that 
the amendments would be inapplicable both to pending and decided cases. App. Supp. Br. 
at p. 9. In any event, Gibbs would lose even if he were correct that Congress changed the 
1991 bill only to make clear that it does not apply to cases "already decided" at the time the 
CRA was signed into law. Judgment against Gibbs in this case was entered on January 17, 
1991, fully ten months before the CRA was enacted. (SER 4.)

- Section 109 is in response to the Supreme Court’s decision in F.F.OC v Arabian
American Oil Co.. ___U .S .___ , 111 S. Ct. 1227 (1991), and extends coverage under
Title VII and The Americans With Disabilities Act to employees of U.S. companies 
working outside the United States. Section 109(c) provides: "The amendments made by 
this section shall not apply with respect to conduct occurring before the date of the 
enactment of this Act."

- Section 402(b), the "Murkowski amendment," is directed solely at further proceedings 
in one case: Wards Cove Packing Co. v. Atonio. 49C U.S. 642 (1989). That section 
provides: "Notwithstanding any other provision of this Act, nothing in this Act shall apply 
to any disparate impact case for which a complaint was filed before March 1, 1975, and for 
which an initial decision was rendered after October 30, 1983."

-7-



Act’s sections. He contends that these sections would be "redundant" if Section 402(a) 

means that the Act applies only to conduct occurring after the effective date of the CRA, so 

all remaining provisions of the Act must have been intended to apply retroactively. This 

argument has been made by other plaintiffs seeKing to have the CRA applied retroactively 

and has been rejected by the courts;- it also should be rejected here.

A statute never should be read in a way that is contrary to its purposes. 

Sutherland § 46.07. The legislative debates in connection with Section 402(b) make clear 

that Section 402(b) was added merely out of an abundance of caution, in effect as 

"insurance" for prospective application. See Mozee. 1992 U.S. App. LEXIS, at *9 

("[SJection 402(b) is nothing more than a clear assurance that courts would not apply the 

1991 Act to the Wards Cove litigation regardless of how the courts might eventually 

construe the 1991 Act’s applicability to pending cases . . . ."); Fray. 1992 WL 65663, at 

*7 (same).

Section 402(b) was included in the final bill in order to fulfill a commitment 

to Senator Murkowski of Alaska that Congress would explicitly guarantee that the changes 

made by the CRA did not apply to the employer in Wards Cove, an Alaska company. This

t
?/ See Mozee. 1992 U.S. App. LEXIS 9857, at *9-10 (7th Cir. May 7, 1992) ("[Sjection 
402(b) is nothing more than a clear assurance that courts would not apply the 1991 Act to 
the Wards Cove litigation regardless of how the courts might eventually construe the 1991 
Act’s applicability to pending cases . . . .  [Similarly,] Section 109(c) . . . can be 
interpreted as an extra assurance that this Section’s provisions will only apply to post­
enactment conduct regardless of how the court eventually applies the Act’s other 
provisions."); Fray. 1992 WL 65663, at *7 (8th Cir. Apr. 3, 1992) (rejecting argument that 
Sections 109(c) and 402(b) imply congressional intent to have CRA apply retroactively; 
"[D]uring the . . . debate over [Section 402(b)], both sides of the retroactivity debate 
repeated their conflicting pronouncements as to the presumption of retroactivity, and 
numerous Senators stated their vote in favor of [Section 402(b)] did not reflect an intent that 
the remainder of the Act apply retroactively . . . .  There seems to have been no floor 
debate whatsoever on § 109(c), so it provides no basis for inferring a general intent as to 
retroactivity."); Thompson v. Johnson & Johnson Management Info. Ctr.. 783 F. Supp.
893, 895 (D.N.J. 1992) (legislative history negates inference that Congress intended CRA 
to be retroactive based on two provisions of Act that expressly prohibit retroactive 
application of certain other provisions).

-8-



guarantee, however, was not intended to make the balance of the statute retroactive. To the 

contrary, numerous legislators who were involved in the drafting of Section 402(b) 

expressly disavowed any such intent. Senator Murkowski himself, for example, declared 

that this provision did not change the prospective nature of Sectior ''02(a) He s’ate^: "I 

have been informed by the cosponsors of this legislation that their intent is that the bill not 

apply retroactively. I strongly support this intent. The inclusion of language regarding 

fWards Covel should not be interpreted as a precedent for any other case. Nor should it be 

viewed as creating an implication regarding whether or not this legislation applies 

retroactively generally.'1 137 Cong. Rec. S15,493 (daily ed. Oct. 30, 1991).

Senator Danforth, the principal architect of the legislative compromise that 

became the CRA, echoed this view, stating that Section 402(b) was merely intended "to 

provide additional assurance that the provisions of the bill will not be applied" to the Wards 

Cove case. 137 Cong. Rec. S15,483 (daily ed. Oct. 30, 1991) (emphasis supplied).

Likewise, on November 5, 1991, Senator Dole introduced a statement 

entitled, "Legislative History, Technical Corrections," again stating that the CRA and its 

amendments would not apply to cases arising before the effective date of the CRA. The 

statement continued:

Absolutely no inference is intended or should be drawn from the 

language of this amendment to section 402 that the provisions of the 

Act or the amendments it makes may otherwise apply retroactively to 

conduct occurring before the enactment of this Act. Such retroactive 

application of the Act and its amendments is not intended; on the 

contrary, the intention of this amendment to section 402 is simply to 

honor a commitment to eliminate every shadow of a doubt as to any 

possibility of retroactive application to the case involving the Wards

-9-



Cove Company. . . . This interpretation . . .  is confirmed by the 

Interpretive Memorandum submitted by Senator Dole and others, and 

the Interpretive Memorandum submitted by Senator Danforth and 

others. Thus, it is not "up to the courts to determine the extent to 

which the bill will apply to cases and claims that are pending on the 

date of enactment."

137 Cong. Rec. S15,953 (Nov. 5, 1991) (quoting Sen. Kennedy) (citations omitted).

Other senators also expressed their view that Section 402(b) was merely to 

emphasize that the CRA did not apply to the Wards Cove case, and not to imply that the 

balance of the statute applied retroactively to all other pending cases.- Similar statements 

were made on the House side.—

- See, e.g.. 137 Cong. Rec. S15,966 (daily ed. Nov. 5, 1991) (Senator Gorton stated 
that "the language in question does no more than reaffirm for one specific case the more 
general mandate of the bill that the civil rights amendments will be applied prospectively. 
Had the civil rights legislation been applicable on a retroactive basis and allowed the 
wholesale reopening of hundreds of cases, this Senator would not have supported it."); id- 
(Senator Durenberger stated that "the bill is completely prospective . . . .  When I voted 
for the civil rights bill last week, I believed that the bill applied prospectively. My vote in 
favor of this fWards Covel resolution does not alter that interpretation. Some may attempt 
to argue at a later date that a special exemption [for Wards Covel creates an inference that 
the bill, in general, is retroactive. Mr. President, that is the wrong conclusion to draw 
from this resolution. This resolution, in my view, is really not necessary. We all know 
that the bill applies prospectively, because that is what the plain language of the civil rights 
bill states. Therefore, the resolution adds nothing new."); id. (Senator Simpson stated that 
by voting for the Wards Cove provision, he was "in no way . . . implying that all other 
companies with litigation pending on the date of enactment should be treated 
retroactively").

-  See, e.g .. 137 Cong. Rec. H9,512 (daily ed. Nov. 7, 1991) (Rep. Hyde) ("I want to 
point out that Section 402 of the bill we are about to deal with specifies that the act and the 
amendments made by the act take effect on the date of enactment. They have no 
application to pending cases or to cases arising before the effective date of the act. The act 
is prospective. It has nothing to do with Wards Cove. Now, the offending amendment that 
was put in by the Senate is unnecessary. It is surplusage. It does not accomplish or 
achieve a thing and it really should not be the subject of so much excitation. The fact is 
the bill is prospective.").

-10-



Finally, the President in signing the bill explicitly noted that he shared the 

views of Senator Dole on Section 402(b) that are quoted above. See President Bush’s 

Statement on Signing the Civil Rights Act of 1991, reprinted in 226 Daily Lab. Rep. 

(BNA) at D-l (Nov. 22, 1991) (Senator Dole’s analysis "will be treated as authoritative 

interpretive guidance by all officials in the executive branch") (included in the Addendum 

hereto).-

Gibbs’ reliance on the remarks of Senator Kennedy in connection with the 

Murkowski amendment (Section 402(b)) is misplaced. See App. Supp. Br. at pp. 11-12. 

Senator Kennedy urged support for Section 402(b), not because he believed the employer in 

Wards Cove deserved an exemption, but because Section 402(b) was part of a compromise 

that he did not want to unravel, and because he hoped that it could be used, as Gibbs is 

attempting to use it here, as an artifice to persuade the courts to apply the balance of the 

statute retroactively -  something he lacked the votes to accomplish through the normal 

legislative process.

This Court would *iave to ignore the clear (i) language, and (ii) intent of 

Congress, if it were to conclude that, by including Sections 109(c) and 402(b), Congress 

intended the rest of the CRA to be retroactive. Sre Mozee. 1992 U.S. App. LEXIS, at 

*10-11 ("[Although Sections 402(b) and 109(c) are explicitly prospective, the language is 

not sufficiently probative of congressional intent to suggest that Congress intended a 

retroactive application of the reminder of the Act.”); Thompson. 783 F. Supp. at 895 

(same).

-  There is no reported legislative debate on Section 109(c). However, as the Seventh 
Circuit noted, the same analysis applies. ”[S]ection 109(c) . . . can be interpreted as an 
extra assurance that this Section’s provisions will only apply to post-enactment conduct 
regardless of how the court eventually applies the Act’s other provisions." Mozee. 1992 
U.S. App. LEXIS, at *10.

-11-



m.
THE LEGISLATIVE HISTORY AND DEBATES COMPEL THE CONCLUSION 

THAT THE CRA DOES NOT APPLY TO PRE-ACT CASES AND CONDUCT

A. Congress’ Rejection Of Provisions Providing For Retroactive

Application Of The Act Compels The Conclusion That Congress 

Intended The CRA To Apply Prospectively Only.

The legislative history of the CRA supports the view that the CRA operates 

only prospectively. Congress repeatedly considered, but failed to enact, statutory language 

that would have expressly made the statute retroactive. Thus, both H.R. 4000, which was 

introduced in the House on February 7, 1990, and S. 2104, which was introduced in the 

Senate on the same date, expressly provided that provisions overruling various Supreme 

Court decisions were to be retroactive to the dates of those decisions. See 136 Cong. Rec. 

H364, S991 (Feb. 7, 1990). The Senate version was ultimately adopted by both the House 

and the Senate, but was vetoed by President Bush on October 22, 1990, in part because of 

the "unfair retroactivity rules." 136 Cong. Rec. S16,567 (daily ed. Oct. 24, 1990). 

Congressional attempts to override the veto fell short. The language expressly providing 

for retroactive effect never became law.
*

The following January, some in the House and Senate tried again, 

introducing H.R. 1 on January 3, 1991, with retroactivity language essentially identical to 

the vetoed 1990 Act. 137 Cong. Rec. H53 (daily ed. Jan. 3, 1991). This bill likewise 

never was enacted into law, because it became apparent that it would again be vetoed, and 

the proponents lacked the votes to override.

Senator Danforth attempted to fashion a compromise that would be acceptable 

to both Congress and the Administration. He began by introducing S. 1207, 1208 and 1209

-12-



on June 4, 1991. 137 Cong. Rec. S6,997, S7,020 (daily ed. June 4, 1991) (Sen. 

Danforth). In these bills, Senator Danforth deleted the old language providing for 

retroactive effect, and instead substituted new Section 13(a), which stated that "[ejxcept as 

provided in Subsection (b), this Act and the amendments made by this Act shall take effect 

upon enactment.

Senator Danforth never wavered from the position that the Act should apply 

prospectively, and the language he had drafted in Section 13(a) eventually became Section 

402(a) of the CRA. As noted in Section m(B), below, Senator Danforth repeatedly stated 

his view that the statute was intended to have only prospective effect. Given his crucial 

role in engineering the delicate legislative compromise that became the CRA, Senator 

Danforth’s views should be treated as authoritative.—7 Indeed, had the Senator not 

removed the express retroactivity language of previous bills, it seems obvious that there 

would have been no CRA. Ultimately, this point is determinative on the question of 

legislative intent. As the Eighth Circuit observed with respect to the CRA:

When a bill mandating retroactivity fails to pass, and a law omirmg 

that mandate is then enacted, the legislative intent was surely that the 

new law be prospective only; any other conclusion simply ignores the
fc

realities of the legislative process.

—' Section 13(b) of the Danforth proposal would have made the provision addressing
Martin v. Wilks. 490 U.S. 775 (1989), retroactive to June 12, 1989. Section 13(b) was 
deleted from the CRA on June 27, 1991, because the Administration objected to allowing 
even the Martin provision to apply retroactively. 137 Cong. Rec. S8,984 (daily ed.
June 27, 1991) (Sen. Danforth).

—' North Haven Bd. of Educ. v. Bell. 456 U.S. 512, 526-27 (1982) (the statement of
the legislation’s sponsor is "an authoritative guide to the statute’s construction"); Federal 
Energy Adm. v. Algonquin SNG. Inc.. 426 U.S. 548, 564 (1976) ("a statement of one of 
the legislation’s sponsors . . . deserves to be accorded substantial weight in interpreting the 
statute"); NLRB v. Fruit & Vegetable Packers & Warehousemen. 377 U.S. 58, 66 (1964) 
("It is the sponsors that we look to when the meaning of the statutory words is in doubt.") 
(quoting Schwegmann Bros, v. Calvert Distillers Corp.. 341 U.S. 384, 394-95 (1951)).

-13-



Fray, 1992 WL 65663, at *8 (citing Sutherland § 48.04).—''

B. The Comments Of The CRA’s Chief Sponsor And Other Kev Figures 

Demonstiare Tliat The Act Was Trended To Be ^respective.

The legislative debates further compel the conclusion that the CRA was 

intended to apply only prospectively. Senator Danforth, the CRA’s chief sponsor, stated 

unequivocally that this was his understanding:

My review of Supreme Court case law supports my reading that in the 

absence of an explicit provision to the contrary, no new legislation is 

applied retroactively. Rather, new statutes are to be given prospective 

application only, unless Congress explicitly directs otherwise, which 

we have not done in this instance.

137 Cong. Rec. S15,483 (daily ed. Oct. 30, 1991) (emphasis added).

Senator Danforth also stated that "the original cosponsors . . .  do not intend 

for the bill to have any retroactive effect or application." Id .-  Then, Senator Danforth 

introduced a section-by-section analysis signed by himself and six other senators. The 

analysis concluded by stating:

-  See also Maddox v. Norwood Clinic. Inc.. 783 F. Supp. 582, 585 (N.D. Ala. 1992) 
("Provisions which were omitted from ‘failed’ versions suggests a collective intent on the 
part of Congress to have the final Act apply only prospectively."); West v. Pelican 
Management Servs. Con?.. 782 F. Supp. 1132, 1137 (M.D. La. 1992) (same).

-  Likewise, Senator Robert Dole, speaking on behalf of thirteen other senators, 
concluded that the Act "will not apply to cases arising before the effective date of the Act." 
137 Cong. Rec. S 15,478 (daily ed. Oct. 30, 1991).

-14-



The bill provides that unless otherwise specified, the provisions of this 

legislation shall take effect upon enactment and shall not apply 

retroactively.

137 Cong. Rec. S15,485 (daily ed. Oct. 30, 1991) (emphasis added). As previously noted, 

it is well established law that "a statement of one of the legislation’s sponsors . . . deserves 

to be accorded substantial weight in interpreting the statute." Algonquin. 426 U.S. at 564. 

In this case, the views of the minority sponsors like Senator Danforth are particularly 

dispositive, because without their support the bill never would have become law.

For similar reasons, the President’s understanding carries great weight.

When President Bush signed the CRA, he issued a written statement adopting the view, 

articulated by Senators Danforth and Dole in their interpretive memoranda, — that the 

legislation would not apply to cases in court at the time of enactment:

Section 22 [which became Section 402 in the final version of 

the law] specifies that the [CRA] and the amendments made by 

the [CRA] take effect upon enactment. Accordingly, they will 

not apply to cases arising before the effective date of the 

[CRA], gee Bowen v. Georgetown University Hospital: cf. 

Kaiser Aluminum & Chemical Corp. v. Boniomo . . . .

It is not "up to the courts to determine the extent to 

which the bill will apply to cases and claims that are pending

-  S ^  President Bush’s Statement on Signing the Civil Rights Act of 1991 (included in 
the Addendum hereto). The view of the Administration is further evidenced by the position 
taken by the Department of Justice in pending cases — that the Act should not be applied 
retroactively. See Department of Justice Brief in Van Meter v. Barr, reprinted m 1 Daily 
Lab. Rep. (BNA) at D-l (Jan. 2, 1992) (included in the Addendum hereto).

-15-



on the date of enactment" . . . .  The language of section 402, 

and this amendment to section 402, is designed to make certain 

that the courts not apply the provisions of the Act or its 

amendments to conduct occurring before the drte of enactment.

137 Cong. Rec. S15,478 (daily ed. Oct. 30, 1991) (Sen. Danforth) (citations omitted); 137 

Cong. Rec. S15,953 (daily ed. Nov. 5, 1991) (Sen. Dole) (emphasis added; citations 

omitted). The President’s understanding is determinative, because without the President’s 

consent the bill would never have become law. See Fray. 1992 WL 65663, at *6 

("Proponents of retroactivity overruling Patterson commanded a majority in both houses of 

Congress, but they could not override the President’s veto of a 1990 bill that contained 

express retroactive provisions. Thus, proponents could do no better than send an 

ambiguous law to the judiciary.").

The position on retroactivity taken by the EEOC, which is the agency 

principally charged with enforcing Title VII, provides further support for the conclusion 

that the CRA was not intended to be applied retroactively. The EEOC has concluded that 

the provisions of the CRA over wLi^h the EEOC has jurisdiction do not apply retroactively; 

instead they only apply to discriminatory conduct that occurred on or after the effective date 

of the CRA. Sre EEOC Policy Guidance on Retroactivity oi Civil Rights Act of 1991, 

reprinted in 1 Daily Lab. Rep. (BNA) at D-l (Jan. 2, 1992) (included in the Addendum 

hereto). In discerning legislative intent, the statutory interpretation adopted by the agency 

responsible for the enforcement of a statute is "entitled to great deference." See, e.g..

EEOC v. Commercial Office Prod. Co.. 486 U.S. 107, 115 (1988); Oscar Maver & Co. v. 

Evans. 441 U.S. 750, 761 (1979).-^

Accord Johnson v. Rice. __ F. Supp.___ , 58 FEP Cases (BNA) 31, 34 (S.D. Ohio
Jan. 24, 1992) (holding that the CRA does not apply retroactively; "[The EEOC’s decision 
to apply the CRA prospectively is] not to be disregarded where, as here, the EEOC’s 
position is unrelated to any particular litigation.").

-16-



Gibbs’ reliance on statements of majority leaders is misplaced because they 

were stating what they wished the bill said — not what the key swing voters understood that 

the bill did say. In particular, Gibbs has tried to muddy the water by citing to the 

statements of Senator Kennedy and Congressman Edwards. As for Senator Kennedy, there 

are two responses. First, as noted above, his views are much less meaningful than those of 

the swing legislators who crafted — and ensured the veto-proof passage of — the 

compromise bill. Second, and in any event, even Senator Kennedy did not state that it was 

his intent or the intent of Congress to apply the CRA retroactively to pending or decided 

cases, or to pre-enactment conduct. Instead, he stated only that "it would be up to the 

courts to determine the extent to which the bill will apply to cases and claims that are 

pending on the date of enactment."- Thus, if anything, Senator Kennedy’s remarks are 

an expression of congressional abdication or confusion over the issue. They certainly 

cannot be relied upon as clear evidence of congressional intent to specify retroactivity.

As for Congressman Edwards, he was not a sponsor of the CRA or a key 

figure in crafting the bill. His view -- that the CRA should be applied retroactively to 

pending cases — at most indicates his personal preference, not congressional intent, and 

certainly not what Congress actually did. His statements simply do not carry any

—' 137 Cong. Rec. S15,485 (daily ed. Oct. 30, 1991). Gibbs’ citation to the dictum of
Senator Kennedy and others about the appropriate legal standard to be applied by the courts 
in interpreting the CRA is irrelevant. App. Supp. Br. at pp. 16-17. As the Supreme Court 
recently reiterated: "[Tjhe Constitution invests the Judiciary, not the Legislature, with the
final power to construe the law." Nationwide Mut. Ins. Co. v. Darden. ___U .S .___ , 112
S. Ct. 1344, 1349 (1992). In any event, Gibbs misleads the Court with respect to 
Congress’ views on the appropriate legal standard to be applied. Thus, he refers the Court 
to comments made in connection with 1990 Civil Rights Act that was vetoed, and states that 
the minority (Republicans) "did not question . . . Bradley as the relevant legal standard." 
App. Supp. Br. at p. 17. (The Bradley test is discussed at Section IV(B) below.) In 
connection with the 1991 CRA, Senator Danforth stated: ”[o]ur intention in drafting the 
effective date provision was to adhere to the principle followed by the vast majority of 
Supreme Court cases and exemplified by Bowen and Justice Scalia’s concurrence in 
Boniomo." 137 Cong. Rec. S15,483 (daily ed. Oct. 30, 1991).

-17-



significance,—' particularly in light of the substantial opposing views expressed by the 

chief sponsor of the CRA and other key figures who were responsible for crafting the 

compromise bill that became law.

Given the clear and unequivocal views expressed by both the key sponsor of 

the legislation, the President and the agency responsible for enforcing Title VII, the Court 

should conclude that the CRA was not intended by Congress to have retroactive effect.

IV.

THE CRA APPLIES PROSPECTIVELY EVEN 

IF THE COURT WERE TO BET.IEVE THAT THE STATUTE’S 

LANGUAGE AND LEGISLATIVE HISTORY ARE TTNCI.F.AR

The Supreme Court’s decisions, with two somewhat dated exceptions, 

recognize a single test for determining whether or not to apply a statute retroactively when 

the express language and congressional intent are unclear. This test, most recently 

reaffirmed in Bowen v. Georgetown Univ. Hosp.. 488 U.S. 204 (1988), utilizer ?. 

presumption in favor of prospective application of new legislation, which presumption can 

be overcome only by a showing of clear congressional action to make the statutet
retroactive. Assuming arguendo that this Court were to believe that the statutory language 

and legislative history of the CRA are ambiguous, that ambiguity militates in favor of a 

prospective application of the statute under this well-established test.

— E.g.. Brock v. Pierce County. 476 U.S. 253, 263 (1986) ("statements by individual
legislators should not be given controlling effect" for purposes of discerning congressional 
intent).

-18-



In two older decisions, Thorpe and Bradley.—'' the Supreme Court 

suggested a different test, one which would require retroactive application of new 

legislation except where (a) congressional intent for prospective application of the law 

exists, or (o) "manifest injustice" woulu result from retroactive application of the statute. 

Even under this test, this Court must conclude that the CRA applies only prospectively 

because, as demonstrated in Sections n  and HI above, Congress clearly intended the CRA 

to apply prospectively only. Moreover, because it makes significant changes in the 

substantive law, "manifest injustice" would result in this case from retroactive application 

of the CRA.

In an apparent attempt to harmonize what seem to be conflicting tests 

articulated by the Supreme Court, this Court has developed a third test — a hybrid that 

applies the well-established presumption against retroactivity, but exempts from the general 

rule statutes which only change procedures or remedies.—'' Under this test, too, the CRA 

applies prospectively only, because it changes substantive law.

In sum, regardless of which test is applied, the result is the same — the CRA 

does not apply retroactively to provide Gibbs with a cause of action that he did not have 

when he filed his lawsuit nearly seven years ago.

" * V l  * V* f y . ’* '*  *»' j

22' Thorpe v. Housing Authority. 393 U.S. 268 (1969), and Bradley v. Richmond School 
Bd.. 416 U.S. 696 (1974).

-  See Section IV(C), below.

-19-



A. The Normal Presumption Against Retroactivity. Reaffirmed By The Supreme

Court In Bowen. Should Be Applied In This Case: Under That Test. The

CRA Applies Prospectively Only.

1. The Supreme Court’s decisions disfavor retroactivity.

In Bowen, the Supreme Court reaffirmed the venerable principle that 

"[r]etroactivity is not favored in the law." Id. at 208. The Court went on to specify that 

"congressional enactments and administrative rules will not be construed to have retroactive 

effect unless their language requires this result." Id. (emphasis added).

Bowen was not a departure from precedent; the presumption against 

retroactivity is firmly entrenched in American jurisprudence. Sts; United States Fidelity & 

Guar. Co. v. United States ex rel. Strothers Wells Co.. 209 U.S. 306, 314 (1908) ("The 

presumption is very strong that a statute was not meant to act retroactively, and it ought 

never to receive such a construction if it is susceptible of any other."); White v. United 

States. 191 U.S. 545, 552 (1903) ("Where it is claimed that a law is to have a retrospective 

operation, such must be clearly the intention, evidenced in the law and its purposes, or the 

court will presume that the lawmaking power is acting for the future only, and not for the 

past . . . ."); United States v. Security Indus. Bank. 459 U.S. 70, 79 (1982) ("the principle 

that statutes operate only prospectively, while judicial decisions operate retrospectively, is 

familiar to every law student.").

In Thorpe and in Bradley, however, the Court suggested a standard for retro­

activity that was a departure from the prevailing view to which the Court had adhered 

previously, and to which the Court subsequently returned. These cases no longer are good 

law (as shown in this section) and do not require retroactive application of the CRA in any 

event (as shown in Section IV(B), below).

-20-



In Bradley, the plaintiff sought in the district court an award of attorney’s 

fees, after prevailing in a school desegregation case. While an appeal from the denial of 

fees was pending, Congress enacted a statute authorizing fee awards. The Supreme Court 

indicated that a couil should 'apply the i^w m effecl ai the time it renders .is uecision, 

unless doing so would result in manifest injustice or there is statutory direction or 

legislative history to the contrary." 416U.S. at 711.

The language in Bradley is undermined by both the Supreme Court’s long 

tradition and its most recent and unanimous reaffirmation in Bowen of the fundamental 

principle that "[rjetroactivity is not favored." 488 U.S. at 208. Bowen did not herald a 

new approach, nor did it constitute an extension of existing law; it was simply a 

reaffirmation of the longstanding presumption against the retroactivity of legislation. See. 

e.g.. Union Pac. R.R. Co v I^aramie Stock Yards Co.. 231 U.S. 190, 199 (1913) ("the 

first rule of construction is that legislation must be considered as addressed to the future,

not to the past"); United States Fidelity & Guar. Co.. 209 U.S. at 314 (same). Accord-
*

ingly, while the Supreme Court has not yet formally overruled Bradley by name, the 

holding, language and logic of the more recent cases make clear that it no longer is good 

law.—7 Indeed, in its most recent decision in this area, Kaiser Aluminum & Chemical 

Corp. v. Boniomo. the Supreme Court conceded that there is an "apparent tension"
t

between Bradley and the generally accepted axiom that "retroactivity is not favored in the 

law." 494 U.S. at 837. The Court did not need to overrule Bradley and Thorpe in

— In Percell v. International Business Machines Corp.. ___F. Supp.___ , 1992 WL
46478 (E.D.N.C. Feb. 28, 1992), the court noted that "the Supreme Court’s holding in 
Bowen is superior to Bradley intellectually, historically and as a barometer of the current 
Supreme Court’s view on the issue." Id. at *5. In support of its conclusion that the 
current Supreme Court would ultLnately reaffirm Bowen, the court in Percell noted that the 
1988 decision in Bowen was unanimous, that Justice Scalia indicated in Boniomo his 
intention to overrule Bradley, and that newly appointed Justice Thomas has stated his 
preference for Bowen in a decision he authored while on the circuit court. Id. at *5 n.5. 
Accord McLauehlin v. New York. 784 F. Supp. 961, 971 (N.D.N.Y. 1992).

-21-



deciding Boniomo. however, because Congress clearly had not contemplated retroactivity in 

the statute at issue.—

2. iiiis Court s uecislons similarly disfavor retroactivity.

Like the Supreme Court, this Court has recognized but not squarely 

addressed the conflict between Bradley and the longstanding presumption in favor of 

prospective application of a new statute. See Avala-Chavez v. United States. 945 F.2d 

288, 295 n.9 (9th Cir. 1991) ("Because we find that congressional intent is clear, we do not 

attempt to reconcile an apparent conflict between two lines of Supreme Court cases rBowen 

and Bradlevl regarding the existence of a presumption for or against retroactivity of 

legislation."). However, decisions of this Court since Bradley suggest that resolution of the 

conflict should be resolved in favor of the principle reaffirmed in Bowen.-

— In his concurring opinion, Justice Scalia bluntly called on the Court to resolve the 
"irreconcilable contradiction" between the two lines of cases. 494 U.S. at 837. Justice 
Scalia made clear that he, at least, would overrule Bradley and Thorpe. He noted that 
"during all of the 19th and most of the 20th centuries, [the Supreme Court held] without 
exception" that legislation is to be applied only prospectively unless Congress specifies 
otherwise. Id. He stressed that the presumption of prospective application "gives effect to 
enduring notions of what is fair, and thus accords with what legislators almost always 
intend." Id. at 856. The majority suggested its agreement on this point, characterizing 
Bowen as the Court’s "recent reaffirmation" of this generally accepted rule. Id. at 837.

— This is the near uniform conclusion the circuit courts of appeal have reached when 
they have squarely addressed the apparent conflict between Bowen and Bradley. In Vogel, 
in which the Sixth Circuit explicitly held that the CRA does not apply retroactively, the 
court emphasized that in Bowen the Supreme Court had "reiterated the longstanding 
principle that ‘[r]etroactivity is not favored in the law.”' 58 FEP Cases at 404 (quoting 
Bowen. 488 U.S. at 208). While noting the "apparent tension" between Bowen and 
Bradley, the court explained that "Bradley should be read narrowly and should not be 
applied in the context where ‘substantive rights and liabilities,’ broadly construed, would be 
affected." Id. (quoting United States v. Murphv. 937 F.2d 1032, 1037 (6th Cir. 1991)).
See also DeVargas v. Mason & Haneer-Silas Mason Co., 911 F.2d 1377, 1390 (10th Cir. 
1990) (”[f]orced to elect between these contradictory presumptions, we choose Bowen. We 
find that the Bowen line of ca^es is well-entrenched in the history of the Supreme Court 
jurisprudence, whereas Bradley is largely unsupported by its cited authorities."), cert. 
denied. I l l  S. Ct. 799 (1991); Sargisson v. United States. 913 F.2d 918, 922-23 (Fed. Cir. 
1990) (same); ALPO Petfoods. Inc, v. Ralston Purina Co.. 913 F.2d 958, 963 n.6 (D.C. 
Cir. 1990) (same); Criger v. Becton. 902 F.2d 1348, 1353-55 (8th Cir. 1990) (same).

-22-



Nelson v. Ada. 878 F.2d 277 (9th Cir. 1989), is entirely consistent with

Bowen. In Nelson, the petitioners, pursuant to local legislation, were appointed by elected 

school board officials to positions in the Guam Department of Education. They were 

subsequently removed by the Governor of Guam on the basis that federal law invalidated 

the local legislation and gave the Governor sole authority for such appointments. At issue 

in Nelson was whether a change in the federal law, which arguably took away from the 

Governor the authority to make such appointments, should be applied retroactively to 

validate the original appointments. Id. at 278-79.

Declining to apply the law retroactively, this Court reaffirmed the 

presumption against retroactivity, as the Supreme Court did in Bowen:

As a general rule, legislative enactments, including 

Constitutional amendments, apply only prospectively. The 

Supreme Court has said that, "a statute is not to be given 

retroactive effect unless such construction is required bv 

explicit language or bv necessary implication."

Id. at 280 (emphasis added) (quoting Bruner v. United States. 343 U.S. 112, 117 n.8 

(1952)).—7

Nelson’s statement of the law is correct and consistent with venerable 

principles repeatedly applied by the Supreme Court. The presumption recognized in Nelson 

should be applied in this case.

^  The cases cited by Gibbs (App. Supp. Br. at pp. 24-25 and n.57) do not suggest a 
different result and do not establish Bradley as "controlling precedent" in this Court. The 
results in the cited cases at most indicate application of a hybrid test which attempts to 
harmonize the Supreme Court cases by recognizing a limited exception to the general rale 
of prospective application of a new statute where the law changes procedures or remedies 
only. See Section IV(C), below.

-23-



3. Applying the longstanding test -- under which statutes apply

prospectively only in the absence of specific action by Congress to 

make them retroactive — the CRA is prospective.

Clear congressional intent to apply a statute retroactively cannot be derived 

"solely from the circumstance that Congress acted to amend existing law in response to a 

Supreme Court opinion." DeVargas. 911 F.2d at 1387. In order to overcome the 

presumption against retroactive application, there must be express "language [that] requires 

this result." Bowen. 488 U.S. at 208. As discussed above, the language and legislative 

history of the CRA establish a congressional intent to have the law applied prospectively; 

they clearly do not indicate the opposite intent.

After reviewing the language and legislative history, numerous courts 

applying the presumption recognized by this Court and reaffirmed in Bowen have concluded 

that the CRA does not apply to cases pending or decided, or to pre-enactment conduct.

See, e.g.. Fray, 1992 WL 65663, at *7 (”[W]e conclude that there is insufficient evidence 

in the language and legislative history of the Act to support its retroactive application under 

the IBowenl rule."); Vogel. 58 FEP Cases at 404 (declining to apply the CRA retroactively 

where "[t]he 1991 Act, on its face, does not make clear whether it should be applied
t

retroactively or prospectively"); Mozee. 1992 U.S. App. LEXIS 9857, at *29 ("Following 

Bowen’s presumption of prospective application, we will not retroactively apply the 

provisions of the 1991 Civil Rights Act . . . ."). See also McCullough v. Consolidated

Rail Corp.. ___F. Supp.___ , No. 90C1226, 1992 WL 41489, at *3 ("Because there is no

clear indication to the contrary, fBowenl directs the court to apply the Act prospectively.");

Ribando v. United Airlines. Inc.. ___ F. Supp.____ , No. 90 C 5904, 1992 WL 55194, at

*4 (N.D. 111. Mar. 20, 1992) (same).

-24-



In short, even if the Court were to conclude that the statutory language and 

legislative history are ambiguous, the general rule prohibiting retroactive application of new 

legislation compels this Court to conclude that the CRA applies prospectively only.

B. Even If Bradley Retains Some Vitality In Some Contexts. It Does Not

Support Retroactive Application Of The CRA. Which Creates

Substantial New Liabilities For Pre-Act Conduct.

Even under Bradley, the CRA applies prospectively. Nothing in Bradley 

suggests that retroactive application of the law is automatic. Prospective application of the 

statute is required when Congress so intended, or when "manifest injustice" would result. 

416 U.S. at 711. Both exceptions counsel against retroactivity here, assuming arguendo 

that the test suggested by the Bradley language should be applied at all.

1. Congressional intent.

As discussed at Sections II and m , above, the plain language of the statute, 

its legislative nistory and the legislative debates all demonstrate that the statute was intended 

to have only prospective effect. The CRA thus should not be applied retroactively even if 

the Court concludes that Bradley is still good law. See Fray. 1992 WL 65663 *8 (under 

Bradley, congressional intent requires the CRA to be applied prospectively); McCullough, 

1992 WL 41489, at *4-5 (same).

2. "Manifest injustice."

The Court in Bradley articulated a three-part test for determining whether 

manifest injustice would result from retroactive application of the law. Under this 

approach, the court evaluates (1) the nature and identity of the partiesy(2) the nature of the

-25-



rights of the parties; and (3) the nature of the impact of the change in law upon those 

rights. 416U.S. at 717. Application of the three-part test militates in favor of concluding 

that "manifest injustice" will result in this case from retroactive application of the CRA.

V

a. The nature and identity of the parties.

If the action is one between purely private parties, Bradley counsels against 

applying the law retroactively. 416 U.S. at 718-19. Bradley involved a system-wide 

challenge to practices allegedly resulting in racial segregation in the public schools. The 

community as a whole received the benefits of a nondiscriminatory school district and,

therefore, the first prong of the manifest injustice test was easily met. By contrast, this
\

case involves a dispute between private parties over "the right to make and enforce

contracts." 42 U.S.C. § 1981. Accordingly, the first prong of the test cuts in favor of 

prospective application. See Ribando. 1992 WL 55194, at *6 (holding that retroactive 

application of the CRA would result in "manifesynjustice" under Bradley; "Plaintiffs 

action here is purely private, benefitting the parties alone. Therefore, even though society 

as a whole may benefit from the decision in this case, in a real sense the matter is 

private.").

, b. The nature of the rights between the parties.

The second prong of the Bradley test considers whether retroactive 

application of a new law would infringe upon or deprive a person of a right that had 

matured. 416 U.S. at 720. The alleged denial of promotion at issue in this case occurred 

nearly eight years ago. The litigation was commenced nearly seven years ago. On facts 

-  similar to these, it would be "patently unfair" under Bradley ”[t]o place new legal 

requirements on the parties." Patterson. 784 F. Supp at 279. The court’s rationale applies

-26-



with equal force here. The second Bradley factor thus requires that the CRA be applied 

prospectively.

c. The nat ne of ti.c impact of the ch.y.ge in law upon those 

rights.

This factor in the Bradley analysis turns on whether the new law creates new
b

and unanticipated obligations on a party without notice or an opportunity to be heard. 416 

U.S. at 720. The CRA creates new and substantial rights and liabilities. For example, 

Section 106 for the first time prohibits adjusting test scores on the basis of race, color, 

religion, sex or national origin. Section 107 for the first time makes it unlawful for an 

employer even to consider an individual’s protected status in making an employment 

decision, even if such consideration does not make a difference in the ultimate decision.-  

Section 101 expands the reach of Section 1981, and prohibits discrimination in contract 

relations generally, including areas outside the scope of Title VII.- In this case, if the 

CRA were applied retroactively, Gibbs would be able to seek unlimited compensatory and 

punitive damages in connection with his claim for discriminatory denial of promotion, 

whereas under pre-Act law at most he would have been entitled to the equitable remedies of 

retroactive promotion and back pay under Title VII.

-  Previously, consideration of an impermissible factor shifted the burden of proof to the 
employer to justify its decision as nondiscriminatory, but was not unlawful in and of itself. 
See Price Waterhouse v. Hopkins. 490 U.S. 228 (1989).

-  See Doe v. Board of County Comm’rs. 783 F. Supp. 1379, 1384 (S.D. Fla. 1992)
(the CRA expressly expands the applicability and scope of Section 1981); Maddox. 58 FEP 
Cases at 448 (scope of liability under Section 1981 and Tk'e VII substantially expanded 
beyond what existed prior to passage of the CRA); Tonev v. Alabama. 784 F. Supp. 1542, 
1547 (M.D. Ala. 1992) (in the CRA, "Congress made a substantive change in the provision 
of sl981a."); Patterson. 784 F. Supp. at 279 n.5 ("the changes made to section 1981 appear 
to be substantive rather than procedural").

-27-



To expand the scope of Section 1981 in the present case would be 

"manifestly unjust." As one court has noted in deciding the issue of the retroactive 

application of Section 101 of the CRA:

the impact of retroactive application of the [CRA] would be to place 

new and unanticipated obligations on defendant . . . .  [T]hese events 

occurred in the early 1980’s and were governed by a law, section 

1981, which, as the Supreme Court interpreted, did not apply to 

plaintiffs case . . . .  Defendant could not have anticipated that 

Congress, displeased with that interpretation, would change the law to 

fit the case. It would be "manifestly unjust" to apply this new 

standard to such a situation.

Patterson. 784 F. Supp. at 279.

Gibbs contends that no manifest injustice will result here, because the 

statutory change at issue is "remedial." Gibbs is doubly incorrect. First, the change was 

not "remedial." The change goes to whether a cause of action exists, or does not exist, 

under Section 1981. The change has nothing to do with the remedy for a Section 1981 V
t

violation. See Ribando. 1992 WL 55194, at *7 ("Congress, in passing the new legislation, 

created real and substantial new rights for plaintiff and substantial new obligations and 

liabilities for defendants. The Act is not merely remedial. Therefore, it would be 

manifestly unjust and in contradiction with both the facts and intent of Bradley to apply this 

law retroactively."); Board of Countv Comm’rs. 783 F. Supp. at 1384 ("By expressly 

expanding the applicability of § 1981 to the performance and termination of contracts, 

including employment contracts, the 1991 Act creates a new statutory cause of
•* *.• -  .  v .  • -  S . . t  • x  >v .  -

action . . . . " ) .  *

-28-



Second, and in any event, whether a change will result in "manifest injustice" 

turns not on whether a remedy at issue, but on the extent of the change. Bennett v. New 

jersey, 470 U.S. 632 (1985), illustrates the point. The Supreme Court in Bennett 

considered a suit by the Secretary' of Education to recover grant funds from the Suite of 

New Jersey that allegedly had been used for ineligible programs. After an administrative 

determination of misuse had been made, Congress amended the grant statute to afford the 

states greater flexibility in allocating grant funds. New Jersey argued that the new 

legislation validated its earlier funding allocations. Despite the allegedly remedial character 

of this legislation, the Court held that Bradley was not applicable and refused to apply the 

statute retroactively. To the contrary, the Court noted that Bradley was limited to changes 

in the law that would not "infringe upon or deprive a person of a right that had matured or 

become unconditional." Bennett. 470 U.S. at 639 (quoting Bradley. 416 U.S. at 720). The 

Court interpreted this limitation to mean that Bradley did not apply to changes in "statutes 

affecting substantive rights and liabilities." Id. at 639 (emphasis supplied). As to this latter 

category, changes in legislation "are presumed to have only prospective effect." Id.;

United States v. Murphy. 937 F.2d 1032, 1038 (6th Cir. 1991) (an amendment that 

increased liability affects substantive rights, and is not applied retroactively); Bess v. Bess. 

929 F.2d 1332, 1334 (8th Cir. 1991) (same).

In sum, Bradley’s reasoning, to the extent it survives at all, cannot be applied 

to changes in the law that have more than a de minimis effect on a defendant’s potential 

liability.— As discussed above, one thing is certain about the changes in the law ushered

— Indeed, while Gibbs cites a number of cases that have purported to apply the Bradley 
presumption, many of these cases have dealt with minor changes in the law that did not 
substantially affect a plaintiffs rights or a defendant’s liabilities. App. Supp. Br. at p. 30 
n.64. See e.g.. In re Resolution Trust Corp.. 888 F.2d 57, 58 (8th Cir. 1989) (holding 
retroactive a procedural provision of the Financial Institutions Reform, Remedy and 
Enforcement Act expanding the appellate courts’ jurisdiction to include direct appeals of 
orders remanding cases which had been removed to district courts), appeal dismissed. 901 
F.2d 694 (8th Cir. 1990); Friel v. Cessna Aircraft Co.. 751 F.2d 1037, 1039 (9th Cir.

(continued...)

-29-



in by the CRA -  they are not de minimis. -  Thus, assuming arguendo that Bradley 

remains good law, it does not support retroactive application of the CRA.

C. This Court Hao Synthesized The Supreme Court's Principles Ou Retu-active 

Application Of New Legislation Into A Test Of Its Own: Under This Test As 

Well, The CRA Applies Prospectively Onlv. -

This Court has attempted to harmonize the conflict between (on the one hand) 

the longstanding presumption against retroactive application of new law, and (on the other 

hand) the language of Bradley, to develop a hybrid test. It applies the normal presumption

— (...continued)
1985) (holding retroactive an extension of the statute of limitations, where original statute 
had not run and action was still viable when statute was amended); Cooper Stevedoring.
Inc, v. Washington. 556 F.2d 268, 272 (5th Cir. 1977) (same).

—' See, e.g.. Van Meter. 778 F. Supp. at 84 (the CRA is to be applied prospectively
because it creates the right to seek compensatory damages in a jury trial which is "a major 
substantive pxo vision"); Steinle. 1992 WL 45400, at *10 (the CRA should not be applied 
retroactively oecause it adds several provisions that are substantive in nature); West. 782 
F. Supp. at 1133 (the CRA applies prospectively because it created the right to seek 
compensatory and punitive damages as well as the right to a jury trial); McCullough. 1992 
WL 41489, at *5-6 (N.D. 111. Mar. 3, 1992) (construing the,CRA under Bradley, the court 
stated that "[sjection 102 of the Act created several rights that under the previous law did 
not exist. . . .  By adding these, Congress destroyed a court’s ability to construe the Act as 
remedial and therefore its retroactive applicability."); Johnson. 58 FEP Cases at 34 
(retroactivity not warranted because it would create a new liability in connection with a past 
transaction); Futch v. Stone 782 F. Supp. 284, 286 n.2 (M.D. Pa. Jan. 13, 1992) ("[t]he 
rights to compensatory damages, interest and a jury trial are all newly created rights").

— Other circuits reject the notion that even procedural/remedial changes should be 
applied retroactively, this section assumes arguendo application of some test other than that 
identified and applied by this Court in Nelson v. Ada. 878 F.2d 277 (9th Cir. 1989), which 
GM respectfully submits is the proper test. Indeed, other courts of appeals have rejected 
suggestions that a synthesized or hybrid test be applied. See, e.g.. Simmons v. Lockhart. 
931 F.2d 12° 6, 1230 (8th Cir. 1991) (court applied presumption against retroactivity to a 
purely remedial change to an attorney’s fees provision); Leland v. Federal Ins. Adm’r. 934 
F.2d 524, 528 (4th Cir. 1991) (applying presumption against retroactivity to purely 
remedial change) cert, denied. 112 S. Ct. 417 (1991); Sierra Medical Ctr. v. Sullivan. 902 
F.2d 388, 392 (5th Cir. 1990) (same); Alpo Petfoods. 913 F.2d at 963 n.6 (same).

-30-



against retroactivity to substantive changes and recognizes a limited exception to the rule 

for purely procedural or remedial changes.

I-1 riel v. Cessna A iia ift Cl . . 751 T zd *037 (9tL Cir. 1985), best .‘uticalates 

the test. In Friel. the plaintiff filed a wrongful death action on behalf of her deceased 

spouse. At the time the death occurred a two-year statute of limitations was provided under 

the federal law upon which the plaintiff based her lawsuit. Three months after the 

plaintiffs decedent’s death, and before the lawsuit was filed, Congress changed the law to 

provide a three-year statute of limitations. Relying on the longer statute, the plaintiff filed 

her claim more than two years, but less than three years, after the death of her decedent. 

The defendants moved for summary judgment on the ground that the action was barred by 

the applicable statute of limitations. The district court denied the motion, applying 

retroactively the change in the law which extended the statute of limitations. Id. at 1038.

This Court affirmed, observing:

It is a rule of construction that statutes are ordinarily given 

prospective effect. But when a statute is addressed to remedies 

or procedures and does not otherwise alter substantive rights, it 

will be applied to pending cases.

751 F.2d at 1039 (emphasis added) (citations and footnote omitted). Because 

a statute of limitations is purely procedural, the Court applied the law

. _ l  V /a '-A ■ ; . * _

- 3 1 -



retroactively.—7 Accord Nichols v. Stapleton. 877 F.2d 1401, 1403 (9th 

Cir. 1989).

As discussed in Section IV(B) above, expansion ol' Section lul:

• makes unlawful under Section 1981 what previously was not; and

21/ Each of this Court’s cases cited by Gibbs involved purely procedural issues and, 
therefore, stands for nothing more than the limited exception to the general rule against 
retroactivity recognized in Friel:

Federal Deposit Ins. Corp. v. New Hampshire Ins. Co., 953 F.2d 478, 487 
(9th Cir. 1991) (applying "the concept of limited retroaction"; six-year statute of limitations 
under federal savings and loan bailout legislation applies retroactively), amended, 1992 
U.S. App. LEXIS 2372 (9th Cir. 1992). Significantly, the defendant in this case did not 
dispute retroactivity and, indeed, urged that the law in question be applied retroactively.
Id.

Gonzalez v. Aloha Airlines. Inc.. 940 F.2d 1312, 1316 (9th Cir. 1991) 
(without mentioning Bowen and without discussing Bradley, held that the trial court should 
have retroactively applied a state court statute of limitations that had been extended from 
one year to two years to save plaintiff s claims from dismissal).

Northern Mariana Islands v. Kawano. 917 F.2d 379, 381-82 (9th Cir. 1990) 
(Noonan, J.) (holding that law providing for initial appeals to be taken to newly established 
supreme court for the commonwealth should have been applied retroactively and, therefore, 
that the appellate division of the district court lacked jurisdiction to consider the appeal), 
cert denied. I l l  S.Ct. 1116 (1991).

In re Pac. Far E. Lines. Inc.. 889 F.2d 242 (9th Cir. 1989) (argued and 
submitted one day after Bowen was decided and no mention of Bowen; new law imposing 
limitation on fees charged by bankruptcy referee applied retroactively).

Delta Computer Corp. v. Samsung Semiconductor & Telecomms. Co., 879 
F.2d 662, 663 (9th Cir. 1989) (argued and submitted three days after Bowen was decided 
and no mention of Bowen: change in law precluding interlocutory appeal of order 
compelling arbitration applied retroactively and, therefore, required dismissal of the 
appeal).

— Bryant v. Ford Motor Co.. 886 F.2d 1526, i_>30-31 (9th Cir. 1989) (no
reference to Bowen: vacating prior order remanding action io the state court based on 
retroactive application of change in federal law requiring courts to disregard fictitiously 
named defendants in removal actions based on diversity jurisdiction), cert, denied. 493 U.S. 
1076 (1990).

-32-



• provides for recovery of unlimited compensatory and punitive damages 

for conduct previously subject only to the equitable relief of retroactive 

promotion and backpay under Title VII.

This is not merely a change in "remedies or procedures" and, therefore, even 

under this Court’s hybrid rule, the CRA cannot be applied retroactively.

Even if the Court were to conclude that some provisions of the CRA make 

changes only in procedures or remedies, the result here would not change for two reasons. 

First, the change to Section 1981, as discussed above, is not merely a change in remedy or 

procedure. Second, where, as here, a new statute effects changes in both the substantive 

law and procedures and remedies, the courts hold that the entire law should not be applied 

retroactively. E .g.. United States v. Fernandez-Toledo. 749 F.2d 703, 705 (11th Cir.

1985) (even applying Bradley, court declined to make partially retroactive a provision of 

the Comprehensive Crime Control Act of 1984 where some of its changes were procedural 

and some were substantive); Steinle. 1992 WL 45400, at *10 (court refused to "divvy up 

portions of the Act" in deciding on retroactivity); Board of County Comm’rs. 783 F. Supp. 

at 1385 (court declined to take piecemeal approach to retroactivity of the CRA); Maddox. 

58 FEP Cases at 448 (retroactivity inappropriate where the CRA, viewed as a whole,
t

creates additional duties and liabilities).-

— Similarly, in United States v. Bekhrad. 672 F. Supp. 1529 (S.D. Iowa 1987), the 
plaintiff contended that, because an amendment to the False Claims Act which allowed 
treble damages could be characterized as "remedial in nature," it should be presumed to be 
retroactive under Bradley. The court acknowledged that the statute, in part, and lire 
amendment, as a whole, were remedial in nature. Id. at 1530. The court held, however, 
that the amendment would be applied prospectively only, reasoning that "a retrospective 
application would not simply create a procedural remedy — it would create a new liability 
in connection with a past transaction." Id.

-33-



This result is consistent with the normal presumption against retroactivity, 

which rests on a basic concept of fairness: it is unfair to change the rules of the game~^ 

midway through the contest:

The principle that the legal effect of conduct should ordinarily be 

assessed under the law that existed when the conduct took place has 

timeless and universal human appeal. It was recognized by the 

Greeks by the Romans . . .  by English Common Law and by the 

Code Napoleon . . . .  It has long been a solid foundation of 

American law . . . .  The presumption of non-retroactivity, in short, 

gives effect to enduring notions of what is fair, and thus accords with 

what legislators almost always intend.

Bonjomo. 494 U.S. at 865-66 (Scalia, J., concurring) (citations omitted); accord Mozee. 

1992 U.S. App. LEXIS, at *22 ("[o]ne of the policies embodied in the need for prospective 

application is that it is unfair to hold private parties accountable for rules which were not in 

effect at the time in which the parties’ relevant conduct took place") (citation omitted). It 

would be doubly unfair to ignore the normal presumption against retroactivity simply 

because some irrelevant aspects of the CRA change only procedures or remedies.
t

D. No Presumption Favoring Retroactivity Arises Out Of The Purportedly 

"Restorative" Nature Of The Civil Rights Act Of 1991.

Gibbs also argues that so-called "restorative laws" are presumed retroactive, 

and that the CRA is such a law. App. Supp Br. at pp. 36-37. There are two problems 

with Gibbs’ argument. First, no such presumption exists; second, the CRA is not a 

restorative statute.

-34-



1. There is no presumption favoring retroactivity for "restorative" 

statutes.

Gibbs candidly concedes that this Court has not recognized any presumption 

in favor of retroactivity when considering so-called "restorative" legislation. App. Supp. 

Br. at p. 36. The same is true for the Supreme Court, and understandably so. Congress, 

of course, well knows to amend legislation in response to decisions of the Supreme Court. 

It also knows how to specify that the legislation applies retroactively.— Courts appro­

priately defer to such expressions of congressional intent, because it is Congress, rather 

than the courts, that enacts our laws and specifies their terms. That is Congress’ role.

DeVargas. 911 F.2d at 1387 (”[T]t is Congress’ prerogative to make the law by enacting 

legislation.").

Where Congress has not done so, however, a different rule applies. Unless 

and until Congress acts, it is the province of the judiciary to say what the law is. See 

Marburv v. Madison. 5 U.S. (1 Cranch) 137, 177 (1803) (it is "emphatically the province 

and duty of th^ judicial department to say what the law is"); Alexander Hamilton, The 

Federalist No. 78, at 116 (H. Commager ed. 1949) ("The interpretation of the laws is the 

proper and peculiar province of the courts."). Absent an amendment retroactive by its 

terms, the law remains what the courts have declared it to be.

There is not, and should not be, a presumption favoring retroactivity to 

purportedly "restorative" statutes. That is so for at least three reasons. First, it is 

irrelevant that a current Congress believes that the Supreme Court has misconstrued the 

actions of a prior Congress. Determining what prior legislation means is the courts’

— Indeed, when Congress wishes to overturn such decisions retroactively, it can usually 
be counted on to state its intentions expressly. Sre DeVargas. 911 F.2d at 1385 n.7 (noting 
examples of statutes passed in response to Supreme Court decisions where Congress clearly 
expressed an intent to apply the change in law retroactively). See Section n , above.

-35-



responsibility, DeVargas. 911 F.2d at 1387-88, and Congress is particularly ill-suited to the 

task.— Second, once the Supreme Court has authoritatively interpreted a law, that 

interpretation is the law, however much Congress might dislike it. A statutory amendment, 

however styled, represents ~ change m the law, tot a “restoration." Third, a presumption 

favoring retroactivity of "restorative" legislation would set off a legislative fight-within-a- 

fight; Congress first would have to debate what the law should be, and then it would have 

to debate whether the law "really" was that way all along, or rather whether it was 

something else.

For all these reasons, the presumption urged by Gibbs does not and should 

not exist. As the Tenth Circuit has observed:

There is nothing jurisprudentially unique about the situation where

Congress amends a statute in response to the Supreme Court’s

interpretation. Regardless of whether Congress enacts a new law or

amends an existing one, our analysis remains the same. We must

examine whether Congress clearly and expressly intended the new law

to apply retroactively, as shown by statutory language or authoritative

legislative history. We do not imply such an intent where Congress
*

chose to remain silent. For us to "imply" intent derogates from 

Congress’s power to determine the retroactive effect of its own laws.

De Vargas. 911 F.2d at 1388.

-  Indeed, even if Congress possessed such authority, there is no reason to expect that 
the Congress of 1991 would have any special insight into the intent of the Congress of 
1866. It seems reasonably safe to assume the two legislative bodies had no members in 
common.

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The cases cited by Gibbs are not to the contrary. They merely rely on 

relatively unambiguous expressions of congressional intent.—7 For example, the court in 

Leake v. Long Island Jewish Medical Center. 695 F. Supp. 1414 (E.D.N.Y. 1988), affd, 

369 F.2u 130 (id Cir. 1989) (per curiam), applieu the Civil Rights Restoration Act of 19b/ 

retroactively, but only after noting that the floor sponsor of the legislation had stated 

unequivocally and without objection from any other congressman that "[t]his bill applies to 

all pending cases." 695 F. Supp. at 1416.—7 Similarly, the court in Mrs. W. v, Tirozzi. 

832 F.2d 748 (2d Cir. 1987), applied an amendment to the Education of the Handicapped 

Act retroactively, but only because this was required by "clear legislative history." Id. at 

755.—7

2. The CRA is not a "restorative" statute in any event.

When Congress enacted the CRA, it codified its finding and purposes in the 

statute itself. See CRA §§ 2-3. These provisions at most reflect that Congress intended to 

"restore" prior law that had been changed by part of one Supreme Court decision, Wards 

Cove. Thus, one of the statute’s express purposes is:

to codify the concepts of "business necessity" and "job related"

enunciated by the Supreme Court in Griggs v. Duke Power

—7 Avers v. Allain. 893 F.2d 732, 755 (5th Cir. 1990), comes close to recognizing such
a presumption, but Avers was vacated and superseded by the opinion of an en banc court. 
Avers. 914 F.2d 676 (5th Cir. 1991) (en banc). It is thus no longer binding precedent, 
even in the Fifth Circuit.

-  The holding and rationale in Lussier v. Dugger. 904 F.2d 661 (11th Cir. 1990), is the 
same.

— Moreover, both the Second Circuit’s decision in Tiroz:2. and the lower court’s 
decision in Leake, were decided prior to the Supreme Court’s decision in Bowen. While 
the Second Circuit’s affirmance of the decision in Leake and the Eleventh Circuit 
affirmance in Lussier came after Bowen, the decisions rely almost exclusively on the 
reasoning of the lower court and fail to cite Bowen.

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Co.. 401 U.S. 424 (1971), and in the other Supreme Court 

decisions prior to Wards Cove Packing Co. v. Atonio, 490 

U.S. 642 (1989)

CRA § 3(2).

The balance of the statute, however, is not "restorative" in any way. To the 

contrary, Congress expressly recognized that it was expanding statutory rights, not restoring 

rights that had been taken away. The last express purpose of the statute is:

to respond to recent decisions of the Supreme Court by expanding the 

scope of relevant civil rights statutes in order to provide adequate 

protection to victims of discrimination.

Id. § 3(4) (emphasis added).

Given this express statement of congressional purpose, numerous courts have 

recognized that the CRA substantively changes existing law and is not purely 

restorative.— For example, in Maddox, the court stated that the CRA.

[EJxtends section 1981 to conduct to which it did not previously 

apply. The new provisions create a cause of action for post-formation 

discrimination (e.g., demotion, discharge, harassment and certain 

promotions). . . . Thus, employers are now exposed to liability for 

conduct which, prior to the passage of the Act, was not proscribed by 

Section 1981. More significantly, employers with less than fifteen

2*' Notably, Gibbs fails to cite a single case that characterizes the CRA as purely 
restorative.

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employees are now exposed to claims for post-contract racial 

discrimination, claims which previously could not have been asserted 

against such employers under Section 1981, Title VII or any other 

federal statute.

783 F. Supp. at 448 (citations, footnote and emphasis omitted).- See also McCullough. 

1992 WL 41489, at *6 (even under Bradley the CRA should not be applied retroactively, 

because it "went well beyond the bounds of Supreme Court case law. Congress added 

rights and liabilities that were never present in any prior civil rights case."); Toney v, 

Alabama. 748 F. Supp. 1542, 1548 (M.D. Ala. 1992) (provision in the CRA broadening 

scope of Section 1981 is not restorative, but adds new liabilities); Steinle. 1992 WL 45400, 

at *10 (viewing the CRA as a whole, it is not restorative but adds substantive 

liabilities).—

Thus, even if 

their retroactive application,

"restorative" statutes were subject to a presumption favoring 

such a presumption would not apply in this case.

— The court in Maddox specifically rejected the argument Gibbs makes here, explaining: 
"[The restorative law] argument assumes that the Supreme Court ‘misspoke’ in Patterson, 
an assumption this court is not willing to make. This court views Patterson as defining 
Congressional intent regarding Section 1981 as the statute then existed. With the passage 
of the 1991 Act, Congress is now expressing a different intent." Id. at n.7 (emphasis 
added).

— By contrast, the cases relied on by Gibbs generally deal with statutes where Congress 
had expressly stated its intent to "restore" pre-existing law. See Leake v. Long Island 
Jewish Medical Ctr.. 695 F.Supp. 1414, 1416-18 (E.D.N.Y. 1988) (1987 Civil Rights 
Restoration Act applies retroactively where Congress expressly stated in statute its intent to 
"restore" the long-standing application of the law following the Supreme Court’s decision in 
Grove City College v. Bell. 465 U.S. 555 (1984); Lussier v. Dugger. 904 F.2d 661 (11th 
Cir. 1990) (same); Avers v. Allain. 893 F.2d 732 (5th Cir. 1990) (same).

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V.

THE SUPREME COURT’S PATTERSON 

DECISION GOVERNS THIS CASE

Gibbs further urges that even if the Court determines that the CRA applies 

only prospectively, it nevertheless should reverse its earlier decision to apply the Supreme 

Court’s decision in Patterson to this case.

Distilled to its essence, Gibbs’ argument is that, because a later Congress 

disagreed with the Supreme Court’s decision in Patterson, this Court likewise should feel 

free to disregard Patterson.—1' This argument fails for at least two reasons, First, the 

argument misconceives the role of Congress and the courts under our Constitution. While 

Congress is empowered to make law, only the courts are authorized to construe it. See 

Marburv. 5 U.S. (1 Cranch) at 177. Congress, thus, may not magically nullify the 

Supreme Court’s decision in Patterson construing the Civil Rights Act of 1866; it may only 

elect to change the law. Maddox. 783 F. Supp. at 586 n.7. It has chosen to do so, but 

only prospectivHy. Congress’ action thus has no effect on the applicability of Patterson to 

this case.

Second, Gibbs’ argument ignores the fact that this Court already has 

considered and decided the issue in favor of retroactive application of Patterson. Following 

the Supreme Court’s decision in Patterson, this Court and every other court of appeal faced 

with the issue applied Patterson to pending cases. See, e.g.. Overby v. Chevron U.S.A.. 

Inc.. 884 F.2d 470, 472-73 (9th Cir. 1989); Rodriguez v. General Motors Corp.. No. 88- 

6230 (9th Cir., unpublished opinion filed June 6, 1990); accord Matthews v. Freedman.

-  The same argument was made in connection with the petition for rehearing en banc in 
the companion case (No. 88-6230) to the first appeal to this Court by Gibbs. That petition 
was denied by order dated July 27, 1990.

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882 F.2d 83, 85-86 (3d Cir. 1989) (applying Patterson retroactively); Risinger v. Ohio 

Bureau of Workers’ Compensation. 883 F.2d 475, 483 (6th Cir. 1989) (same); Brooms v. 

Rppal Tube Co.. 881 F.2d 412, 424 (7th Cir. 1989) (same). Once it became clear that 

Section 1981, as interpreted in Patterson, was the law, litigants based their conduct, 

including the settlement of cases, on the recognition of that interpretation. It would be 

contrary to public policy to reward intransigent litigants (and penalize those who exercise 

efforts to settle their claims) if the Court now were to confer a random benefit by 

reconsidering the rule that Patterson applies to existing cases.- For all these reasons, the 

threshold requirement for avoiding the application of the current, correct rule of law to this 

case cannot be satisfied; Patterson must be applied.

VI.

CONCLUSION

The express language of the CRA, the legislative history and debates, and the 

judicial tests for determining legislative retroactivity all require the same result -  the CRA

-  Those cases were based on the usual rule that federal cases are decided in accordance 
with the case law existing at the time of decision. See Goodman v. Lukens Steel Co., 482 
U.S. 656, 662 (1987) ("The usual rule is that federal cases should be decided in accordance 
with the law existing at the time of decision."). See also Solem v. Stumes, 465 U.S. 638, 
642 (1984) ("As a rule, judicial decisions apply ’retroactively’ . . . . [A] legal system 
based on precedent has a built-in presumption of retroactivity") (citation omitted). In 
Chevron Oil Co. v. Huson. 404 U.S. 97 (1971), the Court laid down a three-part test for 
any exception to the "usual rule" of applying the correct law at the time of decision. The 
first requirement is that the decision whose applicability is in question must have overruled 
clear circuit precedent on which that party was entitled to rely. Id. at 106. Neither before 
nor after Gibbs filed his complaint herein (July 19, 1985) was there any clear Ninth Circuit 
precedent interpreting and holding that Section 1981 includes within its protections on-the- 
job racial harassment or discrimination in the terms and conditions of employment, 
including alleged demotion or denial of promotion.

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should not be applied retroactively to revive Gibbs’ defective pre-Act claim for denial of 

promotion and provide him new claims under Section 1981.—'

DATED: May 13, 1992 Respectfully submitted,

ANDREW C. PETERSON 
STEPHEN L. BERRY
PAUL, HASTINGS, JANOFSKY & WALKER

Attorneys for Defendants and Apf 
GENERAL MOTORS CORPORA1 N, ET AL.

-  Even if this Court were to give Bradley the broad reading urged by Gibbs, it makes no 
sense to apply the CRA retroactively to cases such as this which have been adjudicated at 
the trialyourt level. See Boniomo. 494 U.S. at 854 n.2 (suggesting that it is appropriate to 
place c^ES^tttitially" adjudicated, like those "finally" adjudicated, beyond the reach of a 
new statute) (Scalia, J., concurring). Gibbs (perhaps inadvertently) conceded that the 
legislative history requires at least this. See App. Supp. Br. at pp. 13-14 (recognizing 
objection to retroactivity by the Administration for cases "already decided").

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