Bailes v. United States Brief for the NAACP Legal Defense and Educational Fund as Amicus Curiae in Support of the Petitioner

    No. 91-1075

R E C E I V E D  
H A N D  D E L I V E R E D

In The
OFFICE OF THE CLERK

Supreme Court of tfje fHru
October Ter m , 1991

eti u-s-

George Lewis Bailes, J r.,
Petitioner,

v.
United States

On Petition for W rit of Certiorari to the United 
States Court of Appeals for the Eleventh Circuit

BRIEF FOR THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. AS AMICUS CURIAE IN 

SUPPORT OF THE PETITIONER

Julius L. Chambers 
Charles Stephen Ralston 

*Eric Schnapper
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson St., 16th Floor 
New York, N.Y. 10013 
(212) 219-1900

Attorneys for Amicus Curiae 

* Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



TABLE OF CONTENTS

INTEREST OF A M ICU S.......................    1

REASONS FOR GRANTING THE W R IT ...............................  4

I. There Is A Conflict Among the Circuits
Regarding Whether Legislation Should Be 
Presumed Applicable to Pre-Act Claims . . . . .  4

II. The United States Is Filing Conflicting
Briefs In the Lower Courts, Some 
Supporting and Others Opposing A 
Presumption That New Legislation Is 
Applicable to Pre-Act Claims............................  13

CONCLUSION ..............................................................................  29

Appendix: Index of Government Briefs Lodged 
by Amicus



TABLE OF A UTHORITIES

CASES

AJpo Petfoods, Inc, v. Ralston Purina Co.,
913 F.2d 958 (D.C.Cir. 1990 )...............  10, 11

Bennett v. New Jersey.
470 U.S. 632 (1 9 8 5 )..................... ................ 20

Bowen v. Georgetown University Hospital.
488 U.S. 204 (1988)................... . passim

Bradley v. Richmond School Board.
416 U.S. 696 (1974) ....... ................... passim

Brown v. General Services Administration.
425 U.S. 820 (1976).................................... . 3

Bryant v. Ford M otor Co..
886 F.2d 1526 (9th Cir. 1989) .................. 9

Campbell v. Dominick & Dominick. Inc..
872 F.2d 358 (11th Cir. 1989) ................. 7

Campbell v. United States.
809 F.2d 563 (9th Cir. 1987) .................. 26

City of G reat Falls v. U.S..
673 F.2d 1065 (9th Cir. 1982) ................. 26

Commonwealth of Northern M ariana 
Islands v. Kawano.
917 F.2d 379 (9th Cir. 1990)....................  9

i i



DeGurules v. I.N.S..
833 F.2d 861 (9th Cir. 1987) 26

Delmav v. Paine Webber.
872 F.2d 356 (11th Cir. 1989) .................  7

Delta Computer Corp. v. Samsung 
Semiconductor & Telecommunications Co..

879 F.2d 662 (9th Cir. 1989) ..................  9

Demars v. First Service Bank For Sav..
907 F.2d 1237 (1st Cir. 1990) ....................  12

DeVargas v. Mason & Hanger-Silas 
Mason Co. Inc..
911 F.2d 1377 (10th Cir. 1990)............  9, 11

Federal Deposit Ins. Corp. v. New Hampshire 
Insurance Co.. 1991 U.S. App. LEXIS 30071 
(9th Cir. 1991)....................................... 8, 9, 26

Federal Deposit Ins. Corp, v. W right.
942 F.2d 1089 (7th Cir. 1991) ...............  7, 8

Federal Deposit Ins. Corp. v. 232 Inc..
920 F.2d 815 (11th Cir. 1991) ......................  7

Goida v. Saipan Stevedoring Co..
855 F.2d 625 (9th Cir. 1988) .....................  26

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

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

i i i



Kaiser Aluminum & Chemical Corp. 
v. Boniorno.
108 L. Ed, 2d 842 (1990) ...... . 5, 9

Leiand v. Federal Ins. AdnTr.
934 F.2d 524 .........................................  12, 18

National Wildlife v. Marsh.
747 F.2d 616 (11th Cir. 1984) .................... 25

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

Place v. Weinberger.
426 U.S. 932 (1976) ..................... 3

Resolution Trust Corp. v. Lightfoot.
938 F.2d 65 (7th Cir. 1991) ....................... 8

Sargisson v. United States.
913 F.2d 918 (Fed. Cir. 1990.)................  10, 11

Schalk v. Reilly.
900 F.2d 1091 (7th Cir. 1990)................... . 8

Simmons v. Lockhart.
931 F.2d 1226 (8th Cir. 1991) ................... 10

State of Idaho v. Flowmat Turbine Co..
814 F.2d 1376 (9th Cir. 1987)...... . 26

Thorpe v. Housing Authority of Durham.
393 U.S. 268 (1969) ................................  2, 18

United States v. Brebner.
951 F.2d 1017 (9th Cir. 1991) ..................... . 8

i v



United States v. Fernandez-Toledo.
749 F.2d 703 (11th Cir. 1985)................... . 25

United States v. Murphy.
937 F.2d 1032 (6th Cir. 1991) .................... . 12

United States v. Peppertree Apartments.
942 F,2d 1555 (11th Cir. 1991) ..................  7

United States v. Schumann.
861 F.2d 1234 (11th Cir. 1988) ................. 25

United States v. Security Industrial Bank.
459 U.S. 70 (1982) ........................................  21

W alker v. U.S. Dept, of Housing and 
Urban Dev..
912 F.2d 819 (5th Cir. 1990) ................. . 12

Wright v. Director. FEMA.
913 F.2d 1566 (11th Cir. 1990) .................  25

Wright v. Federal Deposit Ins. Corp..
U.S. No. 91-1274
pending on cert. ........................................... 8

BRIEFS

Avala-Chavez v. I.N.S..
No. 91-70262 (9th Cir.),
Brief for Respondent, .....................  16, 26, 27

Davis v. Tri-State Mack Distributions.
Nos. 91-3574, 92-1123 (8th Cir.),
Brief for the United States as
Amicus Curiae ............................. 11, 15, 19, 24

v



Federal Deposit Insurance Corp. v. W right 
No. 90-2217 (7th Cir.), Brief of 
Plaintiff-Appellant Federal Deposit 
Insurance Corporation ........................ ...... . 17

Reynolds v. Martin. No. 91-15237 (9th Cir.), 
Reply Brief for A p p e llan t.............. ........  25, 27

Rowe v. Sullivan. No. 91-4675 (5th Cir.) 
Supplemental Brief for Appellees ..... . 15, 21

Russell v. City of Houston.
No. 91-6029 (5th Cir.),
Brief for the United States of America 
as Amicus Curiae ............................ 11, 16, 19

Davis v. Tri-State Mack Distributions.
Nos. 91-3574, 92-1123 (8th Cir.),
Brief for the United States as
Amicus Curiae ............................................... 23

United States v. Allied Corp..
Civil No. C-83-5898 FMS (N.D. Cal.),
Reply Brief of the United States 
to Opposition Briefs, ...... .......................  17, 21

U nited States v. Cannon. Civil Action No. 
6:91-951-3K (D.S.C.), United States’ Reply 
Brief to Defendants’ Oral 
M otion to D ism iss..................................  18, 22

U nited States v. Peppertree Apts..
No. 89-7850 (11th Cir.)
Brief of Appellee ............ . 15, 17, 22, 23, 25

v i



United States v. Presidio Investmants Ltd..
No. CIV-90-0063-TVC-AM (D. Ariz.),
M emorandum of the United States
in Opposition to Defendant’s
M otion to D ism iss........................... 16, 22, 26

United States v. Rent America.
Inc., No. 89-6188 PAINE (S.D. Fla.),
Response of the United States to
Defendants’ M otion to Strike Claims
for Damages and Penalties .... ...............  15, 18

Van M eter v. Barr.
Civil Action No. 91-0027 (GAG) (D.D.C.), 
D efendant’s M emorandum in Opposition 
to Plaintiff’s Motion To File 
Second Amended C om pla in t........ 16, 19, 23

v i i



No. 91-1075

In  The

Suprem e Court of tfje Ifm teb fetate^
October Term , 1991

George Lewis Bailes, Jr .,
Petitioner,

v.

United States.

On Petition for Writ of Certiorari to the United States 
Court of Appeals for the Eleventh Circuit

BRIEF FOR THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. AS AMICUS CURIAE IN 

SUPPORT OF THE PETITIONER

INTEREST OF AMICUS*

The NAACP Legal Defense and Educational Fund, 

Inc. (LDF) is a non-profit corporation established to assist 

African Americans in securing their constitutional and civil

'The parties have consented to the filing of this brief. 
Copies of the letters of consent have been filed with the 
Clerk.



2

rights. LDF has on several occasions represented litigants 

in this Court seeking application of newly enacted legislation 

to pre-existing claims. Bradley v. Richmond School Board, 

416 U.S. 696 (1974); Thorpe v. Housing Authority o f Durham, 

393 U.S. 268 (1969).

LDF currently represents a number of litigants, 

including Brenda Patterson,1 who now seek application of 

the provisions of the 1991 Civil Rights Act to their pre-Act 

claims. In that litigation the question presented by 

petitioner is of substantial importance. In the Eleventh 

Circuit in the instant case the Department of Justice 

maintained that Bradley remains good law. The United 

States insisted below that Bradley requires application of new 

legislation to pending claims unless Congress has indicated 

a contrary intent or such application would be manifestly 

unjust. In litigation regarding the 1991 Civil Rights Act, 

however, the Department of Justice has filed briefs

1 See Patterson v. McLean Credit Union, 491 U.S. 164 
(1989).



3

contending precisely the opposite -- that Bradley is bad law 

and that new legislation should be presumed inapplicable to 

pre-existing claims.

When Title VII was amended in 1972 to authorize 

civil actions against federal agencies, the Department of 

Justice argued in some cases that that legislation did apply 

to pre-Act claims, and simultaneously insisted in other cases 

that the legislation did not apply to pre-Act claims. In that 

era, as today, government attorneys advanced whichever 

view of the law worked to their advantage in any given 

lawsuit, indifferent to the conflict that was inevitably created 

by that tactic. Acting on petitions filed by LDF, this Court 

granted certiorari to assure that the same rule of law would 

apply to all cases. Brown v. General Services Administration, 

425 U.S. 820, 824 n.4 (1976); Place v. Weinberger, 426 U.S. 

932 (1976).



4

REASONS FOR GRANTING THE WRIT

I* There Is A Conflict Among the Circuits Regarding 
Whether Legislation Should Be Presumed Applicable 
to Pre-Act Claims

Until four years ago there was no controversy among

the lower courts, or within this Court, regarding when new

legislation should be applied to pre-Act claims. Since 1974

indeed for almost two centuries — the federal courts had

followed the rule articulated in Bradley v. Richmond School

Board, 416 U.S. 696 (1974):

[A] court is to apply the law in effect at the 
time it renders its decision, unless doing so 
would result in manifest injustice or there is 
statutory direction or legislative history to the 
contrary.

416 U.S. at 711.

[W]e must reject the contention that a change 
in the law is to be given effect in a pending 
case only where that is the clear and stated 
intention of the legislature.

416 U.S. at 715. The lower courts experienced little 

difficulty or disagreement in applying Bradley.

In 1988, the seeds of confusion were sown by this 

Court’s decision in Bowen v. Georgetown University Hospital,



5

488 U.S. 204 (1988). The question in Bowen was whether

the Administrative Procedure Act authorized the

promulgation of regulations which altered after the fact the

substantive rights of an affected party. Although that issue

was a relatively narrow one, the Court’s opinion contained

the two potentially more far reaching sentences:

Retroactivity is not favored in the law. Thus, 
congressional enactments and administrative 
rules will not be construed to have retroactive 
effect unless their language requires that 
result.

488 U.S. at 208.

Two years later, in Kaiser Aluminum & Chemical 

Corp. v. Bonjomo, 108 L.Ed.2d 842 (1990), the majority 

opinion set out at length the "manifest injustice" standard in 

Bradley, but also noted the "apparent tension" between 

Bradley and the two sentences quoted above from Bowen. 

108 L.Ed.2d at 854. Because it believed that the plain 

language of the statute in Bonjomo did not apply to the 

circumstances of that case, the majority concluded that it 

"need not in this case ... reconcile the two lines of precedent



6

represented in Bradley ... and [Bowen v.]Georgetown...." Id. 

Four members of the Court did address that "apparent 

conflict," declaring it "more apparent than real" and urging 

adherence to the holding in Bradley. 108 L.Ed.2d at 871 

(White, J., dissenting). Justice Scalia, in a separate 

concurring opinion joined by no other member of the Court, 

argued that Bradley was inconsistent with Bowen and should 

be overruled. 108 L.Ed.2d at 856 - 867.

Bowen and Bonjomo have combined to wreak 

considerable conflict and confusion among the circuit courts. 

Since Bonjomo three circuits have unequivocally reaffirmed 

their adherence to Bradley. In the instant case the Eleventh 

Circuit held:

We recognize that there exists some confusion 
as to the applicability of this Bradley 
analysis.... The Supreme Court has declined 
to clarify this confusion .... This circuit has 
relied upon the Bradley analysis to determine 
the retroactive application of statutory 
changes .... Thus, unless otherwise directed 
by the United States Supreme Court or the 
Eleventh Circuit en banc, we are bound by 
precedent to apply the Bradley analysis.



7

Petition App. A-xvi n.4.2 On four occasions since Bowen

the Eleventh Circuit has relied on Bradley in holding a new

law applicable to a pre-existing claim.3

The Seventh Circuit also regards Bradley as good and

controlling law, reasoning that the concerns expressed in

Bowen are encompassed within the "manifest injustice"

exception to Bradley itself:

Despite the existence of an alternative line of 
precedent, we believe there is no prejudice in 
applying only Bradley and its progeny to the 
facts in this case. Any tension between the 
two lines of precedent is negated because, 
under Bradley, a statute will not be deemed to 
apply retroactively if it would threaten 
manifest injustice by disrupting vested rights.

Federal Deposit Ins. Corp. v. Wright, 942 F.2d 1089, 1095 n.6

(7th Cir. 1991), petition for writ of certiorari pending sub

2 The decision below is now officially reported sub 
nom. United States v. Peppertree Apartments, 942 F.2d 
1555 (11th Cir. 1991).

3 United States v. Peppertree Apartments-, Federal 
Deposit Ins. Corp. v. 232, Inc., 920 F.2d 815 (11th Cir. 
1991); Delmay v. Paine Webber, 872 F.2d 356, 357-58 (11th 
Cir. 1989); Campbell v. Dominick & Dominick, Inc., 872 
F.2d 358, 360-61 (11th Cir. 1984).



8

norm. Wright v. Federal Deposit Insurance Corp., No. 91- 

1274.4 On three occasions since Bowen the Seventh Circuit 

has relied on Bradley in holding a new law applicable to a 

pre-existing claim.5

Most recently the Ninth Circuit has reiterated that it

continues to apply Bradley.

Where, as here, there is no clear indication of 
congressional intent, and no "manifest 
injustice" will result, we conclude that 
retroactive application ... to pending cases is 
appropriate. See Bradley, 416 U.S. at 711 
(court applies the law in effect at the time it 
renders its decision unless "there is a statutory 
direction or legislative history to the 
contrary").

Federal Deposit Ins. Corp. v. New Hampshire Insurance Co. , 

1991 U.S. App. LEXIS 30071 at *25-*26 (9th Cir. 1991). On 

six occasions since Bowen the Ninth Circuit has relied on

4 See also United States v. Brebner, 951 F.2d 1017, 
1022 (9th Cir. 1991) ("[A] change in the law must be given 
[retroactive] effect unless there was clear indication that it 
was not to apply in pending cases.") (emphasis and 
bracketed material in original) (quoting Bradley.)

5 Federal Deposit Ins. Corp. v. Wright, Resolution 
Trust Corp. v. Lightfoot, 938 F.2d 65, 67 (7th Cir. 1991); 
Schalk v. Reilly, 900 F.2d 1091, 1096-97 (7th Cir. 1990).



9

Bradley in holding a new law applicable to a pre-existing 

claim.6

On the other hand, in DeVargas v. Mason & Hanger- 

Silas Mason Co. Inc., 911 F.2d 1377 (10th Cir. 1990), the 

court stated:

[W]e simply cannot harmonize ... Bradley ... 
with Bowen .... [w]e agree with Justice 
Scalia’s observation in [Bonjomo] that "... 
these two lines of cases are in irreconcilable 
contradiction." .... Forced to elect between 
these contradictory presumptions, we choose 
Bowen .... We are strongly persuaded by 
Justice Scalia’s ... concurring opinion in 
[Bonjomo] .... Faced with a choice between 
... Bowen ... and Bradley ... , we elect the 
presumption reflected in the more recent 
decision in Bowen ....

911 F.2d at 1390, 1392. An Eighth Circuit decision asserted:

Our cases have noted the irreconcilable 
conflict in the Court’s directions on this point

6 Federal Deposit Ins. Corp. v. New Hampshire 
Insurance Co.; Gonzalez v. Aloha Airlines, 940 F.2d 1312, 
1316 (9th Cir. 1991); Commonwealth o f Northern Mariana 
Islands v. Kawano, 917 F.2d 379, 381-82 (9th Cir. 1990); In 
re Pacific Far East Lines, 889 F.2d 242, 247 (9th Cir. 
1989); Bryant v. Ford Motor Co., 886 F.2d 1526, 1528 (9th 
Cir. 1989); Delta Computer Corp., v. Samsung 
Semiconductor & Telecommun-ications Co., 879 F.2d 662, 
663-65 (9th Cir. 1989).



10

.... [I]n Kaiser Aluminum & Chemical Corp. v. 
Bonjomo.... Justice Scalia criticized the Court 
for not seizing the opportunity to resolve the 
real and troubling tension between the 
Bradley and [Bowen] lines of precedent ....
[Ojne must choose between the Bradley and 
[Bowen v.]Georgetown Hospital presumptions.
The better rule is that of [Bowen 
v.]Georgetown Hospital.

Simmons v. Lockhart, 931 F.2d 1226, 1230 (8th Cir. 1991).

A decision in the District of Columbia Circuit commented:

Recent Supreme Court cases ... have undercut 
the Bradley principle. These decisions appear 
to be reviving the older presumption against 
retroactively applying statutes .... Because the 
[Bowen v.] Georgetown Hospital rule seems 
more faithful to the older decisions ..., we rely 
on that rule here.

Alpo Petfoods, Inc. v. Ralston Purina Co., 913 F.2d 958, 963-

64 n.6 (D.C.Cir. 1990) (Emphasis in original). And a

decision in the Federal Circuit stated:

There is an irreconcilable conflict between 
Bowen and Bradley .... We prefer the longer- 
standing rule that retroactivity is not 
presumed.

Sargisson v. United States, 913 F.2d 918, 922-23 (Fed. Cir. 

1990.) In briefs filed in the circuit courts within the last 

month, the Department of Justice, with the approval of the



11

Solicitor General, has repeatedly characterized these circuits 

as rejecting Bradley,1 referring to the endorsement of 

Bradley in the instant case with the signal "but see."8

Several circuits have struggled to fashion a standard 

that reconciles Bradley and Bowen. The First Circuit applies 

Bradley if "[n]o conduct on the part of either party would 

have differed if the statute had been in effect at the time of 

the ... incident," but applies Bowen if at least one of the

7 See, e.g. Brief for the United States as Amicus 
Curiae, Davis v. Tri-State Mack Distributions, Nos. 91-3574, 
92-1123 (8th Cir.), p. 13 n.6:

"Several ... courts of appeals have expressly chosen 
Georgetown over Bradley. See Alpo Petfoods, Inc. v. 
Ralston Purina Co., 913 F.2d 958, 964 n.6 (D.C. 
Cir. 1990); Sargisson v. United States, 913 F.2d 918, 
922-23 (Fed. Cir. 1990): DeVargas v. Mason & 
Hanger-Silas Mason Co., 911 F.2d 1377, 1392 (10th 
Cir. 1990), cert, denied, 111 S.Ct 799 (1991)."

Because the United States was not a party in Davis, the 
government’s amicus brief required, and in fact did 
receive, the approval of the Solicitor General. The brief 
in Davis is dated March 1992. Brief, p. 20.

8 Brief for the United States of America as Amicus 
Curiae, Russell v. City o f Houston, No. 91-6029 (5th Cir.), 
p. 8 n.5.



12

parties acted in reliance on the earlier state of the law. 

Demars v. First Service Bank For Sav., 907 F.2d 1237, 1240 

(1st Cir. 1990). The Sixth Circuit applies Bradley to laws 

which are "merely remedial," but applies Bowen to statutes 

which alter "substantive rights and liabilities." United States 

v. Murphy, 937 F.2d 1032, 1037, 1038 (6th Cir. 1991). 

Decisions in the Fourth and Fifth Circuits cite both Bradley 

and Bowen without specifying expressly when each precedent 

is to be applied. Walker v. U.S. Dept, o f Housing and Urban 

Dev., 912 F.2d 819, 831 (5th Cir. 1990); Leland v. Federal 

Ins. A d m ’r, 934 F.2d 524, 528 and n.7 (4th Cir. 1991).

In the court below, the United States contended and 

the Eleventh Circuit held that new statutes are to be applied 

to pre-Act claims, unless Congress has clearly directed 

otherwise or such application would result in "manifest 

injustice." Whether that is indeed the appropriate canon of 

construction, i.e. whether Bradley is still good law, is a 

question of great practical importance. Where Congress 

clearly requires or forbids application of a new law to pre-



13

Act claims congressional intent is determinative. But

Congress frequently does not express its intent on this point.

The applicability of a new statute to pre-Act claims thus

often turns on which presumption the courts are to utilize:

a presumption in favor of such application or a presumption

against it. That is a question that could arise regarding

virtually any of the hundreds of public laws enacted by

Congress each year, and the lower courts have been required

to invoke such a presumption in interpreting a large

number of statutes involving a wide variety subject matter.

A review of Shepard’s Citations reveals that the lower courts

have in fact relied on Bradley on more than 700 occasions.

The inter-circuit conflict involved in this case thus concerns

a legal issue of pervasive and continuing importance.

II. The United States Is Filing Conflicting Briefs In the 
Lower Courts, Some Supporting and Others 
Opposing A Presumption That New Legislation Is 
Applicable to Pre-Act Claims

In the years after Bradley the United States generally 

and quite frequently maintained in the lower courts that new 

legislation was presumptively applicable to pre-Act claims.



14

In 1988 this Court’s decision in Bowen arguably provided a 

colorable basis for contending that the courts should utilize 

precisely the opposite presumption. The United States did 

not, however, make a principled decision whether to 

continue to adhere to Bradley, as it had in the past, or to 

repudiate Bradley and adopt the contrary rule advocated by 

Justice Scalia. Rather, government attorneys now 

enthusiastically support the Bradley rule in some cases, while 

simultaneously disavowing that rule in other litigation. We 

have lodged with the Clerk of the Court9 samples of briefs 

filed by the United States since Bowen, some of which argue 

in favor of, and some of which argue against the rule in 

Bradley. All the briefs cited below were filed by the United 

States after Bowen, and all but one were filed after 

Bonjomo.

In the instant case, for example, the United States 

insisted, "Bradley creates a presumption that statutes will

9 For the convenience of the Court, we have lodged 
an original and nine copies of these sets of briefs.



15

apply retroactively ,..."10 But the government’s position as 

to the correct presumption has varied from case to case. In 

briefs filed within the last three years government attorneys 

have argued:

The general rule is that statutes are assumed to have 
only prospective effect unless Congress expressly 
states otherwise .... The heavy presumption against 
retroactive application of statutes has deep roots in 
our law.11

A statute will be presumed to apply to cases pending 
at the time of its passage unless there is a "clear 
indication" that it is not to apply. Bradley ...}2

The general rule of statutory construction is that 
statutes are presumed to have only prospective effect 
unless Congress states otherwise.13

10 Brief of Appellee, United States v. Peppertree 
Apartments, No. 89-7850 (11th Cir.), p. 23.

11 Brief for the United States as Amicus Curiae, 
Davis v. Tri-State Mack Distributions, Nos. 91-3574, 92- 
1123 (8th Cir.), pp. 7-8.

12 Response of the United States to Defendants’ 
Motion to Strike Claims for Damages and Penalties, 
United States v. Rent America, Inc., No. 89-6188 PAINE 
(S.D. Fla.), p. 24.

13 Supplemental Brief for Appellees, Rowe v. Sullivan, 
No. 91-4675 (5th Cir.), p. 12 (capitalization omitted).



16

As .... Bradley makejs] clear, a statute will be 
assumed to apply to cases pending at the time of its 
passage unless there is a "clear indication" that it is 
not to apply.14

Th[e] heavy presumption against retroactivity has 
deep roots in the law .... The presumption is very 
strong that a statute was not meant to act 
retrospectively ,...1S

A fundamental principle of our jurisprudence is that 
a court will apply the law as it exists when rendering 
its decision.16

In general, statutes are presumed to have only 
prospective effect unless Congress expressly states 
otherwise.... This heavy presumption against 
retroactive application of statutes is deep-rooted.17

Bradley and its progeny hold that, in the absence of

14 Memorandum of the United States In Opposition to 
Defendant’s Motion to Dismiss, United States v. Presidio 
Investments, Ltd., No. CIV-90-0063-TUC-ACM (D. Ariz.), p. 
14.

15 Defendant’s Memorandum in Opposition to 
Plaintiffs Motion To File Second Amended Complaint, Van 
Meter v. Barr, Civil Action No. 91-0027 (GAG) (D.D.C.), pp. 
6-7.

16Brief for Respondent, Ayala-Chavez v. I.N.S., No. 91- 
70262 (9th Cir.), p. 19.

17Brief for the United States of America as Amicus 
Curiae, Russell v. City o f Houston, No. 91-6029 (5th Cir.), pp. 
6-7.



17

clear legislative intent to the contrary, courts should 
apply the law in effect at the time of the decision.... 
Even if the legislative history were construed to be 
ambiguous, the Bradley presumption should 
control.18

These contradictory assertions would understandably tend to 

breed a certain degree of confusion in the lower courts.

The government has taken conflicting positions 

regarding the correctness and vitality of Bradley. In its brief 

in the instant case, the government referred to Bradley 

twenty-two times.19 In other litigation, the United States 

has asserted that "Bradley correctly states the law," describing 

the holding of Bradley as "important,"20 "well-

18Brief of Plaintiff-Appellant Federal Deposit Insurance 
Corporation, Federal Deposit Insurance Corp. v. Wright, No. 
90-2217 (7th Cir.), pp. 26-27.

19Brief of Appellee, United States v. Peppertree 
Apartments, No. 89-7850 (11th Cir.), pp. 23 (three 
references), 24 (two references), 25 (four references), 27 
(two references), 28 (two references), 30 (three references), 
33 (three references), 36 (three references).

20Reply Brief of the United States to Opposition Briefs, 
United States v. Allied Corp., Civil No. C-83-5898 FMS (N.D. 
Cal.), p. 18.



18

established,"-1 "well-settled"22 and a "time-honored

principle."23 In these cases, government attorneys

repeatedly quote the holding in Bradley that

a court is to apply the law in effect at the time it 
renders it decision, unless doing so would result in 
manifest injustice or there is legislative history to the 
contrary.24

Elsewhere, however, the United States has denigrated

Bradley and the similar decision in Thorpe v. Housing

Authority o f Durham, 393 U.S. 268 (1969), as

two exceptional Supreme Court decisions that 
conspicuously depart from the general and 
longstanding rule against retroactivity .... Nothing in 
the Bradley Court’s reasoning compelled the 
conclusion that its broad language suggests .... ["]It 
is significant that not a single one of the earlier cases

21Responsc of the United States to Defendants’ Motion 
to Strike Claims For Damages and Penalties, United States 
v. Rent America, No. 89-6188-PAINE (S.D. Fla.), p. 23.

22Id. at 24.

^United States’ Reply to Defendants’ Oral Motion to 
Dismiss, United States v. Cannon, Civil Action No. 6:91-951- 
3K (D.S.C.), p. 4.

24See, e.g., id., quoting Bradley v. Richmond School 
Board, 416 U.S. at 711.



19

cited in Thorpe and Bradley ... even purports to be 
applying a presumption of retroactivity."25

Another recent government brief asserted:

Bradley, as broadly construed, does not survive 
Georgetown’s reaffirmation of the presumption 
against retroactivity.... The venerable lineage and 
recent affirmation of the Georgetown rule strongly 
suggest that the Supreme Court would conclude that 
that that rule would govern....26

Where the United States has decided to oppose application

of a particular new statute to a pre-Act claim, it has

repeatedly urged the lower courts to "chosefe] [Bowen

v. [Georgetown over Bradley," insisting that "Georgetown is the

better decision."27

The government has also taken contradictory

“ Defendant’s Memorandum in Opposition to Plaintiffs 
Motion to File Second Amended Complaint, Van Meter v. 
Barr, Civil Action No. 91-0027 (GAG) (D.D.C.), pp. 14, 16 
(emphasis in original) (quoting in part Justice Scalia’s 
concurring opinion in Bonjomo).

“ Brief for the United States of America as Amicus 
Curiae. Russell v. City o f Houston, No. 91-6029 (5th Cir.), p.

“ Brief for the United States as Amicus Curiae, Davis v. 
Tri-State Mack Distributions, Nos. 91-3574, 92-1123 (8th 
Cir.), p. 13 n.6.



20

positions regarding the significance of several decisions 

handed down by this Court after Bradley but before Bowen. 

For example, in the instant case petitioner argued in the 

Eleventh Circuit that a presumption against application of 

the new legislation was established by Bennett v. New Jersey, 

470 U.S. 632 (1985). The United States dismissed that 

contention out of hand:

The case of Bennett v. New Jersey ..., cited by Bailes 
... adds nothing to this discussion.... Bennett involved 
a substantive change in an existing statute rather 
than the creation of a new remedy.... That 
distinction alone makes Bennett irrelevant to the facts 
here.28

Elsewhere, in opposing application of another law that 

would have augmented the remedy available to prevailing 

plaintiffs, the United States asserted "the case falls under the 

traditional rule of nonretroactivity as reaffirmed in 

Bennett...."29 Similarly, in opposing application of another

^Brief of Appellee, United States v. Peppertree 
Apartments, No. 89-7850 (11th Cir.), p. 31.

29Brief for the United States as Amicus Curiae, Davis v. 
Tri-State Mack Distributions, Nos. 91-3574, 92-1123 (8th 
Cir.), p. 12.



21

remedial statute, the Department of Justice cited United

States v. Security Industrial Bank, 459 U.S. 70 (1982):

"The principle that statutes operate only prospectively 
... is familiar to every law student." United States v. 
Security Indus. Bank....30

But in yet another recent brief, the Department of Justice

took precisely the opposite position regarding the

significance of that decision:

Security Industrial Bank ... held that a statute that 
affects vested property rights will not be given 
retroactive application. It distinguished its situation 
from cases where the new statute affects only 
procedural changes or changes in the form of legal 
remedy.... Thus, Security Industrial Bank is 
inapposite.31

In the court below the Department of Justice insisted 

in particular, as it had in other cases, that applicability to 

pre-Act claims was to be presumed where a new law merely 

altered the remedies or procedure for enforcing a pre-

30Supplemental Brief for the Appellees, Rowe v. Sullivan, 
No. 91-4675 (5th Cir.), p. 13.

31Reply of United States to Opposition Briefs, United 
States v. Allied Corporation, Civil No. C-83-5898 FMS (N.D. 
Cal.), p. 19.



22

existing right:

[T]he general rule [is] that "changes relating only to 
procedure or remedy are usually held immediately 
applicable to pending cases." .... This is because 
there is no matured right to any particular remedy.32

Elsewhere the Department of Justice took the opposite

position:

32Brief of Appellee, United States v. Peppertree 
Apartments, No. 89-7850 (11th Cir.), p. 31 (emphasis in 
original) (citations omitted); see also Memorandum of the 
United States in Opposition to Motion to Dismiss, United 
States v. Presidio Investments, Ltd., CIV-90-0063-TUC-AM 
(D. Ariz.), p. 14:

The 1988 Amendments ... do not create new legal 
duties or responsibilities. Rather they merely provide 
a new process by which aggrieved persons may 
enforce existing rights.... Because the new remedies 
and enforcement procedures do not affect vested 
rights, retroactive application is entirely appropriate.

United States’ Reply to Defendants’ Oral Motion to 
Dismiss, United States v. Cannon, Civil Action No. 6: 91-951- 
3K, p. 8 ("defendants have no ’right’ to avoid new penalties 
or administrative procedures for conduct that was unlawful 
at the time it occurred.")



23

[T]he supposed substance-procedure distinction is not 
clearly established.... [A]ny distinction between new 
substantive and procedural rules would be illusory.33

In the court below the Department of Justice insisted that

the new double damages statute in this case, which resulted

in an additional damage award of over $90,000, ought to be

imposed for a pre-Act violation of existing law:

[T]he double damages remedy does not alter or 
diminish defendants’ substantial rights. [The law] 
does not prohibit conduct that was previously 
permitted ... nor does it impose any additional 
duties...; it merely increases the measure of damages 
that result from violation of defendants’ 
obligations.34

A few weeks after rehearing was denied in this case, 

however, the Department opposed application of another

^Defendant’s Memorandum in Opposition to Plaintiffs 
Motion to File Second Amended Complaint, Van Meter v. 
Barr, Civil Action No. 91-0027 (GAG) (D.D.C.), pp. 19-20.

34Brief of Appellee, United States v. Peppertree 
Apartments, No. 89-7850 (11th Cir.), p. 33.



24

law that would, if applicable, have resulted in an additional

award of a mere $1600 for expert witness fees:35

People take actions based on expectations formed by 
existing law.,.. In the present case, ... the ... Act 
exposes defendants to a new and unexpected liability. 
To apply the new expert fee provision ... to this case 
would plainly constitute retroactive application by 
defeating the defendant’s legitimate expectations.36

This argument is the precise opposite of the government’s

stated position in the instant case. Here the government

contended below that a defendant who has violated federal

law cannot assert that it has and should be protected in a

legitimate expectation that the violation will be inexpensive,

and the remedy inadequate.

The government’s contradictory positions on the

merits of this issue have led it to offer inconsistent

descriptions of the state of the law in particular circuits. For

35Brief of Appellant Tri-State Mack Distributions, Inc., 
Tri-State Mack Distributions, Inc. v. Davis, No. 92-1123 
EALR (8th Cir.), p. 8.

36Brief for the United States as Amicus Curiae, Davis v. 
Tri-State Mack Distributions, Nos. 91-3574, 91-1123 (8th 
Cir.), pp. 8-11.



25

example, in its briefs in the instant case, the Department of 

Justice insisted Eleventh Circuit caselaw established a 

presumption that new laws apply to pre-Act claims, citing 

three Eleventh Circuit cases.37 In September 1991, the 

Department obtained from the Eleventh Circuit in this case 

a resounding endorsement of that rule and Bradley. Five 

months later, in another case, the Department of Justice 

insisted there was no clear Eleventh Circuit precedent on 

this issue:

Two circuit courts ... have decided cases that they 
found would have come out the same way under 
Georgetown or Bradley, and expressed no preference 
between them.... Wright v. Director, FEMA, 913 F.2d 
1566, 1573 (11th Cir. 1990)....38

It would be somewhat surprising if none of the Justice

37Brief of Appellee, United States v. Peppertree 
Apartments, No. 89-7850 (11th Cir.), pp. 23, 31 (citing United 
States v. Schumann, 861 F.2d 1234 (11th Cir. 1988); 
National Wildlife v. Marsh, 747 F.2d 616 (11th Cir. 1984); 
and United States v. Femandez-Toledo, 749 F.2d 703 (11th 
Cir. 1985)).

38Reply Brief for Appellant, Reynolds v. Martin, No. 91- 
15237 (9th Cir.), p. 17 n.6.



26

Department attorneys who signed or approved this later 

brief had any knowledge of the decision won earlier by the 

Justice Department in the instant case. In recent litigation 

within the Ninth Circuit, the government filed two briefs 

insisting that that Circuit follows Bradley,39 won in

39Brief for Respondent, Ayala-Chavez v. I.N.S., No. 91- 
70262 (9th Cir.), p. 19:

"’A fundamental principle of our jurisprudence is that 
a court will apply the law as it exists when rendering 
its decision.’ DeGundes v. I.N.S., 833 F.2d 861, 863 
[(9th Cir. 1987)] ... City o f Great Falls v. U.S., 673 
F.2d 1065, 1068 (9th Cir. 1982)."

Memorandum of the United States In Opposition to 
Defendant’s Motion to Dismiss, United States v. Presidio 
Investments, Ltd., CIV-90-0063-TUC-AM (D. Ariz.), p. 12- 
13:

"[T]he United States merely asks this Court to honor 
the well-established principle that ’a court is to apply 
the law in effect at the time it renders its decision....’ 
Bradley v. Richmond School Board, 416 U.S. 696, 711 
(1974). See also Goida v. Saipan Stevedoring Co., 855 
F.2d 625, 630-31 (9th Cir. 1988); DeGurules v. I.N.S., 
833 F.2d 861, 863 (9th Cir. 1987); State o f Idaho v. 
Howmat Turbine Co., 814 F.2d 1376, 1378 (9th Cir. 
1987); Campbell v. United States, 809 F.2d 563, 575 
(9th Cir. 1987)."



27

December 1991 a Ninth Circuit endorsement of Bradley 

and then filed a third brief arguing to the contrary that the 

Circuit has "expressed no preference between Bradley and 

Bowen."*1 Thus within the space of eight months the 

Department of Justice has filed two briefs in the Ninth 

Circuit, first expressly approving, and then expressly dis­

approving, the Bradley presumption; the same government 

attorney is listed as the lead attorney on both of these 

briefs.42

The important inter-circuit conflict described above 

would be sufficient by itself to warrant a grant of certiorari. 

Lawyers for the Department of Justice have seized upon the 

uncertainty in this area of the law to arguing aggressively on

40Federal Deposit Ins. Corp. v. New Hampshire Insurance 
Co., 1991 U.S. App. LEXIS 30071 (9th Cir. 1991).

41Reply Brief for Appellant, Reynolds v. Martin, No. 91- 
15237 (9th Cir.), p. 17 n.6.

42This occurred in the Justice Department briefs in 
Ayala-Chavez v. IM S. (May 1991; endorsing Bradley 
presumption) and Reynolds v. Martin (February 1992; 
opposing Bradley presumption).



28

both sides of the issue, depending on whether endorsing or 

repudiating Bradley will result in the preferred outcome. 

Although this litigation tactic may in any given case serve 

the short term interests of the government, it poses an 

unreasonable burden on the federal judiciary. Ordinarily the 

lower federal courts might look to the Department of Justice 

for principled guidance in a confused and important area of 

the law. In this instance, however, the inconsistent positions 

taken by the government in the courts below is necessarily 

aggravating and exploiting the already serious conflicts 

among the circuit courts.



29

CONCLUSION

For the above reasons, a writ of certiorari should 

issue to review the judgment and opinion of the Eleventh 

Circuit.

Respectfully submitted,

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON 

* ERIC SCHNAPPER
NAACP Legal Defense and 
Educational Fund, Inc.

99 Hudson St., 16th Floor 
New York, N.Y. 10013 
(212) 219-1900

Attorneys for Amicus Curiae

*Counsel of Record

3/31/92



APPENDIX



INDEX
OF GOVERNMENT BRIEFS 

LODGED BY AMICUS
NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC.

Briefs Advocating Presumption in Favor of 
Application of Legislation to Pre-Act Claims

A Avala-Chavez v. INS. No. 91-70262 
(9th Cir.), Brief for Respondent

B Federal Deposit Insurance Corp.
v. Wright. No. 90-1127 (7th Cir.),
Brief of Plaintiff-Appellant 
Federal Deposit Insurance Corp.

C United States v. Allied Corporation,
Civil No. C-83-5898 FMS (N.D. Cal.), 
Reply Brief of United States to Opposition 
Briefs of Defendants

D United States v. Cannon. Civil Action
No. 6-91-951-3K (D.S.C.), United States’ 
Reply to Defendants’ Oral Motion 
to Dismiss

E United States of America v. Peppertree 
Apartments. No. 89-7850 (11th Cir.),
Brief of Appellee

F United States v. Presidio Investments,
Ltd.. CIV-90-0063-TUC-AM 
(D. Ariz.), Memorandum of the 
United States In Opposition to 
Defendant’s Motion to Dismiss



2

G United States v. Rent America. 
Inc.. No. 89-6188-PAINE 
(S.D. Fla.), Response of the 
United States to Defendant’s 
Motion to Strike Claims for 
Damages and Penalties

Briefs Advocating Presumption Against 
Application of Legislation to Pre-Act Claims

H Davis v. Tri-State Mack
Distributions. Nos. 91- 
3574, 92-1123 (8th Cir.),
Brief for the United States 
as Amicus Curiae

I Reynolds v. Martin. No. 91- 
15237 (9th Cir.), Reply 
Brief for Appellant

J Rowe v. Sullivan. No. 91-4675
(5th Cir.), Supplemental 
Brief for the Appellees

K Russell v. City of Houston.
No. 91-6029 (5th Cir.),
Brief for the United States 
of America as Amicus Curiae

L Van Meter v. Barr. Civil
Action No. 91-0027 (GAG)
(D.D.C.), Defendant’s 
Memorandum In Opposition to 
Plaintiffs Motion to File 
Second Amended Complaint