Patterson v. McLean Credit Union Reply Brief of Plaintiff-Appellant

    UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

92-1376

BRENDA PATTERSON,

Plaintiff-Appellant,

v.

McLEAN CREDIT UNION,

Defendant-Appellee.

REPLY BRIEF OF PLAINTIFF-APPELLANT

HAROLD LILLARD KENNEDY, III 
HARVEY LEROY KENNEDY, SR. 

Kennedy, Kennedy, Kennedy 
& Kennedy

710 First Union Building 
Winston-Salem, N.C. 27101 
(919) 724-9207

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON 
ERIC SCHNAPPER 
JUDITH REED

NAACP Legal Defense and 
Educational Fund, Inc.
16th Floor 
99 Hudson Street 

New York, New York 10013 
(212) 219-1900

Counsel for Plaintiff-Appellant



I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT 
WHERE THERE WERE SEVERAL FACTUAL QUESTIONS FOR A JURY
TO DECIDE ........................................................................................................... 1

II. THE 1991 CIVIL RIGHTS ACT APPLIES TO THIS C A SE...............................  6

A. The Amendment Restored Section 1981 Coverage to All
Aspects of Em plo y m e n t ................................................................................... 7

B. The Presidential Veto was Not D irected to Applicability of
the Act to Pending Cases .............................................................................. 8

C. Congress Rejected Amendments Excluding Coverage of
Existing Cl a im s .................................................................................................  10

D. The EEOC Policy Guidance Addresses the Damages Provisions
of the Act On l y .................................................................................................  12

III. APPLICATION OF THE ACT TO THIS CASE WOULD NOT RESULT IN
THE IMPOSITION OF NEW LIABILITY............................................................  13

IV. JUSTICE SCALIA’S CONCURRENCE IN KAISER MISCONSTRUES THE
LAW OF RETROACTIVITY..................................................................................  18

CONCLUSION......................................................................................................................  22

TABLE OF CONTENTS



TABLE OF AUTHORITIES

CASES

Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975) ..................................................................................................  12

Appalachian Power Co. v. Train,
620 F.2d 1040 (4th Cir. 1980) ..................................................................................  14

Auffm’Ordt v. Rasin,
102 U.S. 620 (1881) ..................................................................................................  18

Boddie v. American Broadcasting Companies, Inc.,
881 F.2d 267 (6th Cir.) reh’g denied, 1989 U.S.
App. LEXIS 18956 (6th Cir. 1989), cert, denied, 493
U.S. 1028 (1990) ......................................................................................................... 16

Bowen v. Georgetown Univ. Hospital,
488 U.S. 204 (1988) .............................................................................................. 6, 13

Bradley v. Richmond Sch. Bd.,
416 U.S. 696 (1974) .......................................................................... 13, 14, 15, 19, 21

Brookins v. Sargent Industries, Inc.,
717 F.2d 1201 (8th Cir. 1983) ..................................................................................  16

Brown v. Gaston County Dyeing Mach. Co.,
457 F.2d 1377 (4 u Cir. 1972) ..................................................................................... 8

Condit v. United Airlines, Inc.,
631 F.2d 1136 (4th Cir. 1980) ..................................................................................  14

EEOC v. Vucitech,
842 F.2d at 941 ......................................................................................................... 21

Federal Reserve Bank of Richmond v. Kalin,
'  77 F.2d 50 (4th Cir. 1935) .........................................................................................  19

Fray v. Omaha World Herald,
960 F.2d 1370 (8th Cir. 1982) ..................................................................................  10

Greene v. United States,
376 U.S. 149 (1964)....................................................................................................  16

li



Pages:

Grummit v. Sturgeon Bay Winter Sports Club,
354 F.2d 564 (7th Cir. 1966) ..................................................................................... 19

Hicks v. Brown Group,
112 S. Ct. 1255 (1992)................................................................................................ 10

Hicks v. Brown Group,
Nos. 88-2769/2817EM ................................................................................................ 10

Hollowell v. Commons,
239 U.S. 506 (1916) ..................................................................................................  21

Johnson v. Uncle Ben’s,
1992 U.S. App. LEXIS 14931 (5th Cir. July 1, 1992)...............................................  13

Kaiser Aluminum & Chemical Corp. v. Bonjomo,
494 U.S. 827 (1990) ................................................................................  15, 18, 19, 20

Khandewal v. Compuadd Corp.,
780 F. Supp. 1077 (E.D.Va. 1992) ............................................................................ 15

Kim v. Coppin State College,
662 F.2d 1955 (4th Cir. 1981) ..................................................................................... 8

Koger v. Ball,
497 F.2d 702 (4th Cir. 1974) ..............................................................................  13, 17

LTV Federal Credit Union v. UMIC Government Securities,
704 F.2d 199 (5th Cir.), cert, denied, 464 U.S. 852
(1983)..........................................................................................................................  16

Leland v. Federal Insurance Adm’r,
934 F.2d 524 (4th Cir. 1989), cert, denied,___
U.S.__ , 116 L. Ed. 2d 437 (1991)............................................................................  13

Lytle v. Household Mfg.,
494 U.S. 545 (1990)   6

McBumey v. Carson,
99 U.S. 567 (1879)......................................................................................................  19

McDonnell-Douglas Corp. v. Green,
411 U.S. 792 (1973) ....................................................................................................  3

iii



Pages:

Oreyo v. 833 West Buena Joint Venture,
943 F.2d 730 (7th Cir.), reh’g denied en banc, 1991
U.S. App. LEXIS 29433 (7th Cir. 1991) ................................................................. 16

Orr v. United States,
174 F.2d 577 (2d Cir. 1949) ..................................................................................... 19

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

Patterson v. McLean Credit Union,
805 F.2d 1143 (4th Cir. 1986) ..................................................................................... 8

Percell v. International Business Mach., Inc.,
785 F. Supp. 1229 (E.D.N.C. 1992) .......................................................................... 15

Rodriquez de Quijas v. Shearson/American Express, Inc.,
490 U.S. 477 (1989) ..................................................................................................  18

Rowson v. County of Arlington Va.,
786 F. Supp. 555 (E.D.Va. 1992) ..............................................................................  14

Sampervac v. United States,
32 U.S. (7 Pet.) 222 (1833) ....................................................................................... 19

Society v. Wheeler, 1 Gall. 139 (1814) ................................................................................  20

Standard Oil of Cal. v. United States,
429 U.S. 17 (1976)......................................................................................................  17

Stephens v. Cherokee Nation,
174 U.S. 445 (1899) ..................................................................................................  19

Sturges v. Carter,
- 114 U.S. 511 (1885) ...........................................................................................  19, 20

Twenty Per Cent Cases,
87 U.S. (20 Wall.) 179 (1874) ..................................................................................  18

United States v. Heinszen & Co.,
206 U.S. 370 (1907) ..................................................................................................  19

IV



Pages:

United States v. Heth,
7 U.S. (3 Cranch) 399 (1806)................................................................................... 18

United States v. Holcomb,
651 F.2d 231 (4th Cir. 1981) ..............................................................................  13, 14

United States v. Kimberlin,
776 F.2d 1344 (7th Cir. 1985), cert, denied, 472
U.S. 1142 (1986) ........................................................................................................  21

United States v. Schooner Peggy,
5 U.S. (1 Cranch) 103 (1801)..................................................................................... 19

Varandani v. Bowen,
824 F.2d 307 (4th Cir. 1987) ..................................................................................... 14

Vogel v. Cincinnati,
959 F.2d 594 (6th Cir. 1992) ..............................................................................  12, 13

STATUTES

42 U.S.C. § 1981 .............................................................................................................  7, 22

Title VII, 42 U.S.C. § 2000e...........................................................................................  passim

OTHER

50 Am. Jur. Statutes, § 482, pp. 505-06 (1944) ...................................................................  20

59 C.J. § 696, 700, pp. 1171-74 (1932) ................................................................................  20

136 Cong. Rec. 16562 (daily ed. Oct. 24, 1990) ..............................................................  9, 10

137 Cong. Rec. H 3898 (daily ed. June 4, 1991) (§ 1 5 )........................................................  11

137 Cong. Rec. S15483 (daily ed. Oct. 30, 1991) ........................................................ 7, 8, 11

H.R. Rep. No. 101-644 ................................................................................................ 8, 10, 11

S. Rep. No. 101-315, p. 58 ................................................................................................ 7, 8

Black’s Interpretation of Laws (2d ed. 1911) ............................................................  20

V



Pages:

Broom, H., Legal Maxims, 27 (8th ed. 1911)................................................................... 20

Endlich, C., Commentary on
the Interpretation of Statutes (1888).............................................................. 20

Myer, W.G., Vested Rights (1891) ..................................................................................... 20

Smead, E., "The Rule Against Retroactive Legislation: A 
Basic Principle of Jurisprudence," 20 Minn. L. Rev.
775 (1936) .................................................................................................................  20

Smith, B., "Retroactive Laws and Vested Rights," 5 Texas L. Rev. 231 (1927).................. 20

Story, J., Commentaries on the Constitution, § 1398
(1851)..........................................................................................................................  20

Wade, W., Retroactive Law § 221 (1880) .....................................................................  20

VI



I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT
WHERE THERE WERE SEVERAL FACTUAL QUESTIONS FOR A JURY TO 
DECIDE

McLean’s brief fails to address one of the central issues in this case -- whether the 

district court’s action deprived Patterson of her right to a jury trial. While arguing that 

there were no genuine issues of fact, McLean catalogues its own view of the evidence in an 

attempt to have this Court decide several issues in this case; indeed, McLean would have 

this Court make findings on issues on which the district court itself made no findings.1 

McLean would have this Court decide whether there was an available position,2 whether 

Patterson "applied" for the position,3 whether Patterson was qualified to perform the 

account intermediate position,4 what salary Patterson might have received had she obtained 

the position,5 whether the jobs at issue were sufficiently different,6 and whether persons in 

the higher level position received promotions thereafter.7 In her opening brief plaintiff 

argued that the district court had usurped the role of the jury in resolving conflicts in 

evidence and inferences to be taken from the evidence., Pltf. Br. pp. 41-45. McLean’s 

recitation of its version of > nt evidence, far from rebutting this argument, reinforces it.

1 See infra n. 9 and surrounding text.

2 McLean Br. p. 9.

3 Id. p. 3.

4 Id. pp. 9-10.

5 Id. p. 14.

6 Id. pp. 13-14.

McLean Br. Id. p. 5.7



McLean argues first that there was no available position.8 McLean is foreclosed 

from making that argument before this Court, since the district court appears to have 

assumed for purposes of summary judgment that there was an available position.9 

McLean’s brief devotes considerable space to arguing Patterson’s qualifications, citing her 

original application test results, annual performance evaluations and the "respective 

qualifications" of the individuals involved. McLean Br. p. 13. Apart from the fact that 

comparisons of this sort are precisely those that should be made by a jury, is the curious 

fact that McLean itself takes conflicting positions on the evidence. McLean argues on the 

one hand that plaintiff was not qualified for the position,10 that the position required very 

different skills from that needed for Patterson’s file coordinator job,11 and its counsel 

argued at trial that to have promoted Patterson would have been akin to promoting a 

paralegal to partner.12 McLean now argues that promotion from accounting clerk to 

account intermediate would have been a lateral transfer.13

8 Id. pp. 9-10. McLean states, "[sjince th< position of ‘Account Intermediate’ was not 
available, the Court properly granted . . . [sjum.nary [jjudgment." In support of its position, 
the Credit Union attempts to argue that Williamson was simply given a title change (Id. p. 3); 
yet company records refer to the change in position as a promotion. JA 57. See also, Braswell 
testimony on cross-examination, "[s]he [Williamson] was promoted, yes, sir." 4 TR 82. A jury 
would have had to weigh the record notation against any contrary testimony of witnesses, whose 
credibility also would have had to be assessed.

9 Similarly, the district court appears to have assumed, without deciding, that Patterson 
was qualified for the position. Such assumptions would be proper, indeed, mandatory given the 
need to weigh the evidence, for purposes of summary judgment. See Pltf. Br. p. 44.

10 McLean Br. p. 9.

12 Pltf. Br. p. 10.

13 McLean Br. p. 13.

2



McLean next argues that facts that would go to proof of the harassment claim have 

no relevance to the promotion claim. This position is wrong for at least three reasons.

First, the same facts can give rise to different claims. Second, as the Supreme Court 

specifically recognized in this case, evidence of other discrimination may be considered 

probative of the issue to be decided.14 Third, and most important, Patterson argues the 

position she sought would have involved a new and distinct relationship precisely because 

the acts that might constitute racial harassment occurred on such a regular basis that extra 

work and demeaning commentary and action became part of her job duties. Pltf. Br. pp. 7- 

9. McLean neither admits nor denies that these acts occurred; it simply refuses to deal with 

this argument at all.15 Yet, there are only three possible explanations: the actions 

complained of constituted racial harassment, they were part of Patterson’s job duties, or 

both. Patterson argues it is the last. Her testimony was that her job was the lowest in the 

Credit Union with the exception of janitor (Patterson Dep. 37). If a jury were to find her 

testimony credible that she was the only clerical employee required to sweep, dust, do odd 

jobs, accept assignments from more than one supervisor, and submit to demeaning 

comments, in addition to clerical and filing duties, and that this occurred regularly, it could 

rationally find that the job she sought, lacking such requirements, offered the opportunity

14 "Evidence which petitioner can present . . .  may take a variety of forms . . . [including] 
evidence of respondent’s past treatment of petitioner, including the instances of the racial 
harassment which she alleges . . . ." Patterson v. McLean Credit Union, 491 U.S. 164, 187-88 
(1989) [internal citations omitted]. Other evidence, such as statistics, may be used in an 
individual disparate treatment case to show that an employer’s conduct conforms to a "pattern 
of discrimination." McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 805 (1973).

15 McLean Br. p. 4. Obviously, McLean cannot admit that acts of racial harassment 
occurred, because if the Act applies to this case, it would cover Patterson’s racial harassment 
claim as well as the promotion claim.

3



for a new and distinct relationship. Were there conflicting evidence in the record, or if 

McLean had sought to prove that, contrary to Patterson’s testimony,16 others had to 

endure the same conduct in clerical and accountant positions, again it would be appropriate 

for a jury to resolve these conflicts.

The same is true for the question of whether Williamson received further 

promotions. The following deposition testimony shows that there was sufficient evidence for 

a rational jury to have concluded that Williamson was in fact promoted:

Q. Okay. What is your job title?

MR. DAVIS: Objection. Instruct the witness not to answer.

Q. Okay. Are you presently an accountant intermediate?

A. No, sir.

Q. What is your job now?

MR. DAVIS: Objection. Instruct the witness not to answer

Q. Let me just ask you this. You said that’s not your job anymore. Do 
you have a job that’s higher than that or lower than that?

MR. DAVIS: Objection. Instruct the witness not to answer.

I’ll state for the record that on June 30, 1986, the witness was an 
accountant intermediate. I’ll instruct the witness not to answer with 
regard to any subsequent job changes.

Q. Okay. Well, you’ve already testified that you have a different job from 
what you had from the accountant intermediate position. Let me just 
ask you this. Since you’ve been at the company have you ever been 
demoted?

16 Patterson testified that she was the only clerical employee and the only college graduate 
required to dust and sweep. 1 TR 31.

4



* * * * * * * *

A. No, sir.

Q. So, the job that you have right now was a promotion then from the 
accountant intermediate?

MR. DAVIS: Objection. Instruct the witness not to answer.

Williamson Dep. 6-7.

As we note in our opening brief, and as McLean’s brief supports, the record is 

replete with conflicting evidence on these and other issues, such as the amount of the pay 

increase Patterson might have received,17 and, if the Court does not find the 1991 Civil 

Rights Act applicable, on the question of whether the promotion would have offered 

Patterson the opportunity to enter into a new and distinct relationship with her employer.18 

There were many facts to be considered and the conclusions to be drawn from the evidence 

should have been left to a jury. While a jury might have reached the same conclusion as 

the judge, it is equally conceivable that a jury could have reached the opposite conclusion.

A remand is required to allow a jury to perform the role that the district judge improperly

17 McLean’s records show that upon promotion to the job at issue, Folsom (the other 
account intermediate) received a $100 per month salary increase, while Williamson received a 
$77 per month increase. JA 56-57. McLean correctly notes that Williamson was making more 
money than Patterson before the promotion; however, a jury could well infer from that fact that 
the salary increase for Patterson would have been even greater than that granted Folsom and 
Williamson.

18 McLean asserts that the district court did not make a factual determination on this last 
issue. McLean Br. 1. Yet, while the district court recited the proper summary judgment 
standard (JA 26), it also held that "[tjhough there are differences between the two positions, 
there is not enough difference to conclude that a new and distinct relationship existed between 
defendant and any employee who moved from Account Junior to Account Intermediate." (JA 
31) (^mphasis added). This is clearly a factual finding, based on drawing conclusion from the 
evidence, and very different from a holding that no rational jury could have found a difference. 
Pltf. Br. 44, n. 47.

5



assumed. No properly instructed jury19 has yet been given the opportunity to determine 

the question of whether plaintiff was discriminatorily denied a promotion or to determine 

the facts relevant to whether the promotion sought would have constituted a new and 

distinct relationship. Thus, regardless of how this Court rules on the issue of the 

applicability of the 1991 Civil Rights Act, remand for a jury trial is required.20 

II. THE 1991 CIVIL RIGHTS ACT APPLIES TO THIS CASE

McLean relies on several propositions to support its argument that the Act should 

not apply to the instant case. It places great reliance first, on the Presidential veto of the 

1990 bill (McLean Br. p. 18), second, on the fact that earlier drafts had language making 

the Act explicitly retroactive (Id. pp. 18-19), third, on decisions from other circuits on this 

issue and fourth, on the fact that the Equal Employment Opportunity Commission has 

indicated it considers the Act’s damage provisions to be inapplicable to cases involving pre- 

Act conduct (Id. p. 27). Fifth, McLean argues that application of the Act would be unjust 

and finally, that this Court should adopt Justice Scalia’s concurring opinion in Bowen v. 

Georgetown Univ. Hospital, 488 U.S. 204 (1988). The remainder of this brief shows why 

these contentions must fail.

19 The Supreme Court held in this case that instructing the jury that Patterson had to 
prove she was more qualified than Williamson was error. 491 U.S. at 186.

20 McLean argues that where application of a new law might require a new trial that would 
result in manifest injustice. McLean Br. pp. 29-30. Of course, in this case, we argue that 
regardless of this Court’s decision on the application of the 1991 Civil Rights Act, remand for 
a jury trial, contemplated since the Supreme Court’s 1989 decision and not yet held, is required. 
Moreover, McLean’s argument goes against Supreme Court jurisprudence on the importance 
of a right to trial by jury. ree, e.g., Lytle v. Household Mfg., 494 U.S. 545 (1990) ("[Cjoncem 
about judicial economy . . .  an insufficient basis for departing from our longstanding 
commitment to preserving a litigant’s right to a jury trial").

6



A. The Amendment Restored Section 1981 Coverage to All Aspects of 
Employment

McLean argues incorrectly that the 1991 amendment to 42 U.S.C. § 1981 (1991)

restored only the coverage for racial harassment, but that the holding in Patterson v.

McLean Credit Union, 491 U.S. 164 (1989) regarding the limitation on coverage of the types

of promotion remains intact. The legislative history disproves this contention.

The Report of the House Committee on Education and Labor explained that

The Committee intends this provision to bar all race discrimination in 
contractual relations. The list set forth in the new subsection (b) is intended 
to be illustrative rather than exhaustive. In the context of employment 
discrimination, for example, this would include, but not be limited to, claims 
of harassment, discharge, demotion, promotion, transfer, retaliation, and 
hiring.21

Similarly, the Senate report admonished

The Committee intends this provision to bar all race discrimination in the 
subsection (b) added by the Act is intended to be illustrative rather than 
exhaustive.22

The Danforth memorandum asserted: _ _

The list set forth in subsection (b) is illustrative only, and should be given 
broad construction to allow a remedy for any act of intentional discrimination 
committed in the making or the performance of a contract.23

More broadly, Congress understood that the basic purpose of section 101(b) was to

restore the meaning of section 1981 to where it stood prior to Patterson. The sections of the

committee reports describing the provisions now in section 101 are headed:

21 Id. (emphasis added).

22 S. Rep. No. 101-315, 58 (emphasis in origir.d).

23 137 Cong. Rec. S15483 (daily ed. Oct. 30, 1991).

7



The Need To Restore. The Prohibition Against All Discrimination In The
Making and Enforcement of Contracts.24

Restoring. The Prohibition Against All Race Discrimination in the Making
and Enforcement of Contracts25

Restoring. Prohibition Against All Racial Discrimination in the Making and
Enforcement of Contracts.26

This emphasis on the restorative purpose of section 101 is important because prior to 

Patterson it was well established that section 1981 applied to promotion cases.27

B. The Presidential Veto was Not D irected to Applicability of the 
Act to Pending Cases

The vetoed bill contained two types of provisions regarding pre-Act claims, some 

regarding cases still pending on the day of enactment, and others requiring that final 

judgments be reopened. McLean states th a t" The President vetoed the 1990 Bill, among 

other reasons, because the retroactivity provisions were unfair." McLean Br. p. 18.

When the Civil Rights Act was under consideration in 1990, there was a second 

narrower controversy regarding whether to reopen cases that had already been finally

24 Id., p. 11 (emphasis added). H.R. Rep. No. 101-644, pt. 1, p. 16 (emphasis added).

25 S.Rep. No. 101-315, p. 58 (emphasis added); H.R. Rep. No. 101-644, pt. 1, p. 86 
(emphasis added).

26 H.R. Rep. No. 101-644, pt. 2, p. 42 (emphasis added); see also id. at 9 ("By restoring the 
broad scope of section 1981, Congress will ensure that Americans may not be harassed, fired 
or otherwise discriminated against in contracts because of their race.

27 Prior cases interpreting § 1981 had not focused, as the Supreme Court did in this case, 
on whether a promotion would create a new contract between the employer and employee, but 
had merely assumed that the discriminatory denial of a promotion violates the statute. See, e.g., 
Patterson v. McLean Credit Union, 805 F.2d 1143, 1145 (4th Cir. 1986); Kim v. Coppin State 
College, 662 F.2d 1955 (4th Cir. 1981); Brown v. Gaston County Dyeing Mach. Co., 457 F.2d 
1377 (4th Cir. 1972).

8



decided under Patterson or the other disputed Supreme Court decisions. The bill which 

passed Congress in 1990 specified expressly which provisions would and would not apply to 

pending cases; the legislation also required that cases finally decided in the period after the 

overturned decisions be reopened.28 When the President vetoed the 1990 bill, he gave as 

one of his reasons the inclusion in the bill of what he described as "unfair retroactivity 

rules."29 The veto message stated that the President was sending to Congress a 

memorandum "explaining in detail the defects that make S. 2104 unacceptable."30 That 

detailed memorandum, written by the Attorney General, specified which aspect of the 

legislation the Administration objected to regarding pre-Act claims: "Section 15 unfairly 

applies the changes in the law made by S. 2104 to cases already decided."31 The veto 

memorandum made no mention of any objection to applying the Act to pending cases that 

were not "already decided." Similarly, when in the spring of 1990 the Administration first 

threatened a veto of this legislation, it objected only to the provision for reopening closed 

cases:

By upsetting final judgments, this section may unconstitutionally interfere with
vested legal rights.32

« 136 Cong. Rec. S 9968 (daily ed. July 18, 1990).

29 136 Cong. Rec. 16562 (daily ed. Oct. 24, 1990).

30 Id.

31 Memorandum for the President, Oct. 22, 1990, p. 10 (emphasis added).

32 Letter of Attorney General Thornburgh to Senator Edward Kennedy, April 3, 1990, p. 
15 (emphasis added).

9



Even conservatives understood the Attorney General’s objections to be limited to final 

judgments.33 34 As noted in our opening brief, Senator Hatch, who was the leading supporter 

of the Administration during the 1990 debates regarding the veto, stated expressly that he 

favored legislation that would overturn Patterson and be applicable to Brenda Patterson’s 

own pending litigation. Pltf. Br. p. 3A.M

C. Congress Rejected Amendments Excluding Coverage of Existing 
Claims

Express proposals to exempt all pending cases from coverage by the Act were made 

repeatedly, and were rejected on four separate occasions — once in committee, twice on the 

floor of the House and a last time during the climactic Senate negotiations. In 1990 an 

amendment to the bill expressly limiting its application to conduct occurring after the 

effective date of the legislation was rejected by the House Judiciary Committee.35 Another

33 See H.R. Rep. No. 101-644, pt.2, p.71 (1990) (Additional views of Rep. Sensenbrenner, 
et al).

34 As we note in our opening brief, the decision in Fray v. Omaha World Herald, 960 F.2d 
1370 (8th Cir. 1982) (petition for rehearing pending), is based on a misunderstanding of the 
legislative history and the basis of the Presidential veto. Pltf. Br. p. 29-30. In any event, 
reliance on the reasoning in Fray is now inadvisable, because the Eighth Circuit has agreed on 
its own motion to hear en banc, Hicks v. Brown Group, Nos. 88-2769/2817EM. The issue in 
Hicks, which is on remand from the Supreme Court (see Hicks v. Brown Group, 112 S. Ct. 1255 
(1992)), is identical to the issue presented in Fray.

35 H.R. Rep. No. 101-644, pt. 2, p. 71 (101st Cong., 2d sess. 1990); 136 Cong. Rec. H 6786 
(daily ed. Aug. 2, 1990) (Rep. Moorhead) ("[wjhen the Judiciary committee considered this 
legislation, I offered an amendment that would have made all the changes in current law ... 
prospective only .... My amendment lost....")

10



such amendment was proposed but then withdrawn during the 1990 deliberations of the

House Committee on Education and Labor.36

When the legislation reached the floor of the House in August, 1990, the

Administration and conservative opponents offered an alternative proposal known as the

Michel-LaFalce substitute. The Michel-LaFalce substitute contained a specific provision

that would have exempted all pre-existing claims from coverage:

The Amendments made by this Act shall not apply with respect to claims 
arising before the date of enactment of this Act.37

The Michel-LaFalce substitute, however, was rejected by a vote of 238 to 188.38

In early 1991 the Administration proposed yet another bill; this legislation, like 

Michel-LaFalce, contained general language that would have expressly exempted all pre­

existing claims from coverage by the legislation:

The amendments made by this Act shall not apply to any claim arising before 
the effective date of this act.39

When the Civil Rights Act was on the floor of the House in June of 1991, Representative 

Michel40 proposed this language as part of a substitute, but it too was rejected, by a vote of 

266 to 162.41

36 H.R. Rep. No. 101-644. pt. 1, p. 90 (101st Cong., 2d sess. 1990); ("[T]he Committee 
considered an amendment to ... preclude application of the bill to any conduct occurring prior 
to the date of enactment .... [Tjhe amendment was subsequently withdrawn.")

37 137 Cong. Rec. H 6747 (daily ed. Aug. 3, 1990).

38 Id. at H 6768.

39 137 Cong. Rec. S 3023 § 14 (daily ed. March 12, 1991).

40 137 Cong. Rec. H 3P?8 (daily ed. June 4, 1991) (§ 15).

41 137 Cong. Rec. H 3908 (daily ed. June 4, 1991).

11



The final language of the Civil Rights Act was negotiated during the week of 

October 21, 1991. Once again the Administration pressed for inclusion in the bill of the 

blanket exemption for pending cases that had been contained in the rejected Michel- 

LaFalce and Michel substitutes. Supporters of the bill rejected this suggestion, but agreed 

as a compromise to accept the Murkowski proposal.

D. The EEOC Policy Guidance Addresses the D amages Provisions of 
the A ct Only

McLean also relies on the EEOC Policy Guidance of December 27, 1991.42 The 

Policy Guidance never purported to be an interpretation of the actual meaning or intent of 

the 1991 Civil Rights Act to pre-existing claims. The memorandum dealt only with the issue 

of damages. On July 1, 1992, the EEOC issued a letter clarifying the meaning of the Policy 

Guidance. The letter states that the Policy Guideline "does not address the issue of whether 

other sections of the Civil Rights Act should be applied retroactively . . . ." (A copy of this 

letter appears in an appendix to this brief.) Moreover, since the EEOC administers only 

Title VII, not section 1981, any opinions it might issue on that earlier law would not be 

entitled to the deference accorded its guidance on tne later law. Albemarle Paper Co. v. 

Moody, 422 U.S. 405, 431 (1975) (noting that administrative interpretation of Title VII b y 

the is "enforcing agency" entitled to deference, quoting Griggs v. Duke Paper Co., 401 U.S. 

424, 433-434 (1971).43

42 McLean Br. p.27.

43 The reasoning in the Sixth Circuit decision in Vogel v. Cincinnati, 959 F.2d 594 (6th Cir. 
1992), cited by McLean at p. 24, is flawed by virtue of its reliance on the EEOC guidance.

12



III. APPLICATION OF THE ACT TO THIS CASE WOULD NOT RESULT IN THE
IMPOSITION OF NEW LIABILITY

McLean argues that Patterson seeks to "impose liability on the Credit Union for 

activities . . . [occurring] some nine years prior to the 1991 Civil Rights Act." McLean Br. 

p. 16. McLean does not dispute plaintiffs argument in her opening brief that racial 

harassment, discriminatory promotion and discharge were all forbidden by Title VII at the 

time the challenged conduct took place.44 As this Court noted in Koger v. Ball, 497 F.2d 

702 (4th Cir. 1974), remedial statutes, such as the 1991 Civil Rights Act, should apply where 

the "employee’s right to be free from racial discrimination existed before the passage of 

[the] Act." Id. at 707.

The Fourth Circuit cases cited by McLean are not to the contrary. McLean Br. pp. 

16, 24-24. As discussed in our opening brief (pp. 19-20), Bradley v. Richmond Sch. Bd., 416 

U.S. 696 (1974), is still good law in this circuit, even after Bowen v. Georgetown Univ. 

Hospital, 488 U.S. 204 (1988). See Leland v. Federal Insurance Adm ’r, 934 F.2d 524 (4th Cir.

1989), cert, denied,___  U.S.__ , 116 L.Ed.2d 437 (1991). McLean argues that prior to

this Court’s decision in Leland this Court "had limited the application of the Bradley/Thorpe 

presumption." McLean Br. p. 24. The cases cited for this proposition simply do not 

support it. McLean’s reliance on United States v. Holcomb, 651 F.2d 231 (4th Cir. 1981) and 

Koger v. Ball, 497 F.2d 702 (4th Cir. 1974) is very much misplaced. Holcomb relies on 

Bradley and Koger for the straightforward proposition, urged by plaintiff here, that as a

44 It is for this reason that it is appropriate to distinguish sections of the Act based on 
whether they affect substantive rights. See, Vogel v. Cincinnati, 959 F.2d 594, 598 (6th Cir. 
1992), and the Fifth Circuit decision in Johnson v. Uncle Ben’s, 1992 U.S. Anp. LEXIS 14931, 
*32 (5th Cir. July 1, 1992).

13



"general rule ... procedural changes that do not affect substantive or vested rights" apply to 

pending cases. 651 F.2d at 234. In Condit v. United Airlines, Inc., 631 F.2d 1136 (4th Cir. 

1980), this Court was faced with a statute containing express language providing for an 

explicit grace period (631 F.2d at 1140); that is not the case here. In Appalachian Power 

Co. v. Train, 620 F.2d 1040 (4th Cir. 1980), this Court looked to the agency interpretation 

and practice in holding that amendments to agency regulations were not to be applied in a 

way that would result in the imposition of new liability, by the retraction of pollution 

variances already issued. 620 F.2d at 1047. Here, the conduct was illegal when it 

occurred.45

It is perhaps by virtue of this reasoning that the district court in Rowson v. County of 

Arlington Va., 786 F. Supp. 555, 560 (E.D.Va. 1992), noted that it was holding the Act 

inapplicable plaintiffs claims under section 1981 and Title VII for conduct occurring in 1990 

"with some reluctance." The district court explained that while it viewed recent Supreme 

Court remands in similar cases as persuasive evidence that the Court viewed the Act as 

applicable to pending cases, it felt "constrained to follow" what it viewed as Fourth Circuit 

precedent. This Court has consistently followed Bradley, and it should reaffirm that

45 Varandani v. Bowen, 824 F.2d 307 (4th Cir. 1987) supports plaintiffs position. In that 
case, this Court was faced with regulations made effective on May 12, 1987, affecting the 
administrative hearings. Presumably, the Court would require that the regulation be applied 
to any hearing conducted after that effective date, regardless of when the underlying actions 
occurred. Similarly, if a federal rule changed the required form or content of a pleading, all 
later filed pleadings would have to conform to the new requirements, while earlier pleadings 
would not have to be refiled. Under similar reasoning, plaintiff would contend that actions for 
which, under the 1991 Act, a jury trial is now available, but tried before November 1991 would 
not have to be retried before a jury.

14



precedent by applying Bradley in this case, thereby providing much needed guidance to the 

lower courts in this Circuit.46

McLean tortuously argues that plaintiff seeks to "place a new legal obligation on the 

Credit Union," because application of the Act in this case "would infringe upon the Credit 

Union’s right to be judged by the laws as the Supreme Court concluded they existed when 

Plaintiffs cause of action accrued . . . McLean Br. p. 29. Of course, the Supreme Court’s 

decision in Patterson did not alter McLean’s obligation under Title VII at the time the 

conduct occurred, thus McLean was aware that at the time the conduct complained of here 

occurred it could have been adjudicated as being in violation of an anti-discrimination 

statute.47 Since the Civil Rights Act restores the law to what it was prior to the Court’s 

decision in Patterson, applying the Act to pending cases will not affect any substantive right 

of the Credit Union. Instead, the parties will be governed by the law as it existed at the 

time of the conduct, which Justice Scalia has called the paramount principle of the rule of 

law. Kaiser Aluminum & Chemical Corp. v. Bonjomo, 494 U.S. 827, 855 (1990) (Scalia, J., 

concurring).

“  See e.g., Khandewal v. Compuadd Corp., 780 F. Supp. 1077,1081 (E.D.Va. 1992) (noting 
that this court "must choose between [Bradley and Bowen”) and Percell v. International Business 
Mach., Inc., 785 F. Supp. 1229, 1234 (E.D.N.C. 1992) (noting that the court was "struggling to 
reconcile the competing holdings" and that there were "valid arguments both for and against 
retroactivity").

47 Of course, a different question might be presented if, at the time of the conduct at issue, 
McLean had had fewer than fifteen employees, thereby exempting it from the coverage of Title 
VII. McLean recognizes that this is not the case here, noting that Patterson could have 
pursued her claims under Title VII. McLean Br. p. 29.

15



McLean has never claimed, and it does not do so now, that it has some reliance 

interest at stake.48 It surely does not contend that it would have altered its conduct in 

anticipation of a Supreme Court decision announced seven years after the conduct 

occurred.49 The relevant question is what law a party relied on when it acted. Absent 

justifiable reliance or the existence of vested rights,50 application of a later statute to a

48 McLean claims that the Act brings obligations that are new and unanticipated, since the 
Credit Union has "always contended that section 1981 was not violated" when it failed to 
promote Patterson. McLean Br. p. 29. But this, of course is very different from the claim 
McLean did not make: "[McLean Credit Union] has not argued at any time that petitioner’s 
promotion is not cognizable under § 1981." 491 U.S. at 186.

49 McLean states that application of the law would "impose liability on the Credit Union 
for activities which allegedly occurred in 1982, some nine years prior to the 1991 Civil Rights 
Act." McLean Br. p. 16. It would be more accurate to state that failure to apply the Act would 
allow McLean to escape the consequences of acts that were illegal when engaged in seven years 
prior to the Supreme Court’s decision.

50 The phrase "vested rights" generally refers to a right to monetaiy or other redress, 
occasioned by pre-Act conduct, that had matured or vested prior to the enactment of the 
statute in question. The presumption against interference with vested rights is a rule of 
construction that protects claimants. Thus these cases, like Greene v. United States, 376 U.S. 
149 (1964), cited in Pltf. Br. p. 20 and McLean Br. p. 20, are readily distinguishable from the 
Civil Rights Act, whose provisions are generally directed at facilitating enforcement of pre­
existing rights. See Oreyo v. 833 West Buena Joint Venture, 943 F.2d 730, 734-36 (7th Cir.) 
(declining to apply new limitations on right of developer to acquire unencumbered title by 
prepaying federally assisted mortgage, where mortgagor had prepaid the mortgage before the 
bill became law), reh’g denied en banc, 1991 U.S. App. LEXIS 29433 (7th Cir. 1991); LTV  
Federal Credit Union v. UMIC Government Securities, 704 F.2d 199, 204-05 (5th Cir.) 
(application of new law denied because it would "negate UMIC’s entire cause of action .... The 
impact could not be more devastating upon UMIC’s established and matured rights .... The 
retroactive application ... would ... extinguish every right which UMIC had ...."), cert, denied, 464 
U.S. 852 (1983).

There are only a few appellate decisions in which a party has been held to have a vested 
right of this sort. In Boddie v. American Broadcasting Companies, Inc., 881 F.2d 267 (6th Cir.) 
reh’g denied, 1989 U.S. App. LEXIS 18956 (6th Cir. 1989), cert, denied, 493 U.S. 1028 (1990), 
the Sixth Circuit declined to apply to a pre-Act claim a new law abolishing the previously 
recognized cause of action for certain unauthorized recordings of telephone conversations. 
Similarly, Brookins v. Sargent industries, Inc., 717 F.2d 1201 (8th Cir. 1983), refused to apply to 
a pre-existing claim a statute that "creates a new defense that potentially cuts off a plaintiffs 
right to recover". 717 F.2d at 1201.

16



pending case does not result in manifest injustice. The caselaw makes clear that the 

concept of vested rights has no application to remedial legislation such as the Civil Rights 

Act. Parties do not have a vested right in every law that might affect the outcome of a 

lawsuit. Most importantly, where a defendant’s conduct was forbidden by law when it 

occurred, the defendant has no vested right in any of the then existing procedural or 

remedial laws that might prevent the injured party from receiving full redress. In applying 

to pre-Act claims new legislation augmenting the remedies available to redress 

discrimination by the federal government, this Court explained "the government has no 

vested right to discriminate against its employees on the basis of race." Koger v. Ball, 497 

F.2d 702, 706 (4th Cir. 1974).

Alternatively, this Court should decline to apply the Supreme Court’s decision in 

Patterson retroactively, since doing so amounts to a unjustifiable posthumous application of 

a decision Congress has now repudiated.51

51 McLean argues that consideration of the issue of whether the Supreme Court’s decision 
in Patterson should be applied retroactively is beyond the scope of this Court’s mandate in this 
case. McLean Br. p. 30, n. 10. Neither the Supreme Court’s mandate nor this Court’s 
mandate, issued May 1991, six months prior to the passage of the Act, would preclude a lower 
court from considering this question, and now holding, in light of the Civil Rights Act, that 
Patterson should not be applied retroactively. "[T]he appellate mandate relates to the record 
and issues then before the court, and does not purport to deal with possible later events." 
Standard Oil o f Cal. v. United States, 429 U.S. 17, 18 (1976).

17



IV. JUSTICE SCALIA’S CONCURRENCE IN KAISER MISCONSTRUES THE LAW 
OF RETROACTIVITY

McLean urges this Court to "conclude that the Supreme Court has implicitly 

overruled the Bradley/Thorpe presumption"52 and rely on Justice Scalia’s concurring opinion 

Kaiser Aluminum & Chemical Corp. v. Bonjomo, 494 U.S. 827, 840 (1990). Though widely 

influential, Justice Scalia’s Kaiser concurrence has not been subjected to critical scrutiny. 

However, when closely reviewed, it is apparent that the concurrence misrepresents the 

historical development of the law. While there have no doubt been many judicial 

pronouncements against retroactivity, those pronouncements have generally not applied to 

procedural or remedial statutes. Indeed, statutes creating new remedies or altering new 

procedures -- which rarely implicate the reliance concerns that may counsel against 

retroactivity — have almost universally been applied to pending actions.

The Supreme Court decisions disfavoring "retroactive" application of legislation were, 

from the outset, limited to legislation affecting vested rights.53 New legislation regarding 

remedies and procedures was always treated differently by the Supreme Court. The Court 

observed in 1833:

Almost every new law, providing a new remedy, affects and 
operates upon causes of action existing at the time the law is 
passed .... It therefore forms no objection to the [statute in 
question] that the cause of action existed antecedent to its

52 This Court should emphatically decline this invitation, as the Supreme Court itself has 
declined to overrule Bradley. Kaiser Aluminum & Chemical Corp. v. Bonjomo, 494 U.S. at 837. 
Moreover, such action would contradict the cardinal tenet that it is not for a lower court to 
declare that a Supreme Court decision has been overruled until the Court has expressly said 
so. See, e.g., Rodriquez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989).

53 See e.g., United States v. Heth, 1 U.S. (3 Cranch) 399, 414 (1806); Twer'v Per Cent Cases, 
87 U.S. (20 Wall.) 179, 187-88 (1874); Auffm’Ordt v. Rasin, 102 U.S. 620 (1881).

18



passage, so far as it applies to the remedy, and does not affect 
the right.

Sampervac v. United States, 32 U.S. (7 Pet.) 222, 239 (1833). The Supreme Court routinely

interpreted new legislation regarding remedies to apply to pre-existing claims.54 Bradley

itself relied on the 1801 Supreme court decision United States v. Schooner Peggy, 5 U.S. (1

Cranch) 103 (1801), and it is surely late in the day to try to limit either Bradley or Schooner

Peggy to their facts. And in 1907, the Supreme Court quoted from one of the pre-eminent

treatises of the day: "The bringing of suit vests in a party no right to a particular decision . .

. and his case must be determined on the law as it stands, not when the suit was brought,

but when the judgment was rendered ." United States v. Heinszen & Co., 206 U.S. 370, 387

(1907) (quoting from Cooley, Constitutional Limitations, 7th ed.).

Justice Scalia’s opinion in Bonjomo likewise misconstrues the view of nineteenth

century authorities on this issue. Justice Scalia quotes Chancellor Kent’s statement that "it

cannot be admitted that a statute shall, by any fiction or relation, have any effect before it

was actually passed." Kaiser v. Aluminum v. Bonjomo, 494 U.S. at 857, quoting J. Kent,

Commentaries on American Law *455. In a subsequent passage, Chancellor Kent

emphasizes that the doctrine quoted by Justice Scalia

is not understood to apply to remedial statutes, which may be of a 
retrospective nature, provided they do not impair contracts, or disturb 
absolute vested rights, and only go to confirm rights already existing, and in

54 Stephens v. Cherokee Nation, 174 U.S. 445, 477 (1899) ("A new remedy ..." ) ;  McBumey 
v. Carson, 99 U.S. 567, 569 (1879) ("It is a remedial statute"); Sturges v. Carter, 114 U.S. 511, 
518 (1885) ("[A] new remedy . . . "). Appellate courts, including this one, have likewise long 
recognized the distinction between substantive and procedural/remedial laws. See e.g., Federal 
Reserve Bank of Richmond v. Kalin, 11 F.2d 50, 52 (4th Cir. 1935); Orr v. United States, 174 F.2d 
577, 580 (2d Cir. 1949); Grummit v. Sturgeon Bay Winter Sports Club, 354 F.2d 564, 568 (7th Cir. 
1966).

19



furtherance of the remedy . . . adding to the means of enforcing existing 
obligations.

Commentaries on American Law at *455-*456 (emphasis added). Justice Scalia quotes 

Justice Story’s statement that

retrospective laws are . . . generally unjust; and . . . neither accord with sound 
legislation nor with the fundamental principles of the social contract.

494 U.S. at 855, quoting J. Story, Commentaries on the Constitution, § 1398 (1851). But

Justice Story defined "retrospective law" narrowly as a

statute which takes away or impair vested rights acquired under existing laws, 
or creates a new obligation, imposed a new duty, or attaches a disability, in 
respect to transactions or considerations past.

Society v. Wheeler, 1 Gall. 139 (1814); cf. Stupes v. Carter, 114 U.S. 511, 519 (1885).

Numerous other authorities endorsed this substantive and procedural distinction in the late

nineteenth and early twentieth centuries.55 Professor Elmer Smead summarized the law as

follows:

Thus the rule of interpretation came in many cases to be not so much a 
prohibition against construing all laws retrospectively in the sense of applying 
tnem to a past time, but more often an inhibition against a construction which 
would give such a retrospective operation to a statute which, because of this 
very interpretation, would violate vested rights.56

55 See, W. Wade, Retroactive Law § 221, at 264 (1880); C. Endlich, Commentary 
on the Interpretation of Statutes, 362-67,386-87,411,412 (1888); W.G. Myer, Vested 
Rights, 18 (1891); Black’s Interpretation of Laws, 386,404-10 (2d ed. 1911); H. Broom, 
Legal Maxims, 27 (8th ed. 1911); 59 C.J. § 696, 700, pp. 1171-74 (1932); 50 Am . Jur . Statutes, 
§ 482, pp. 505-06 (1944).

56 E. Smead, "The Rule Against Retroactive Legislation: A Basic Principle of
Jurispri’ ^ence," 20 Minn. L. Rev. 775, 784 (1936) (footnote omitted). Cf. B. Smith, 
"Retroactive Laws and Vested Rights," 5 Texas L. Rev. 231, 244 (1927) ("If a law assumes to 
divest vested rights it is invalid, if not, it is valid, even though retroactive.").

20



What seems to have been neglected in the recent debate, is that the Bradley 

presumption provides respect for the policy decision implicit in the statute. As Judge 

Easterbrook has explained: "There must be a rule of decision, and the one in force at the 

time the court disposes of the case is the one the legislature deems best for adjusting 

entitlements." United States v. Kimberlin, 776 F.2d 1344, 1346 (7th Cir. 1985), cert, denied, 

A ll U.S. 1142 (1986); see also Hollowell v. Commons, 239 U.S. 506 (1916) (Holmes, J.); 

EEOC v. Vucitech, 842 F.2d at 941. Importantly, Bradley provides only a presumption which 

is rebuttable by demonstrating that the change in law would upset vested rights or that a 

party has detrimentally relied on the old law. Bradley, 416 U.S. at 717. Thus, Bradley 

presents no opportunity for injustice because where there is manifest injustice, Bradley 

counsels that the law should not apply.

21



CONCLUSION

For the reasons set forth in her opening and reply briefs, the decision below should 

be vacated and the case should be remanded to the district court for a jury trial on the 

merits of plaintiffs’ § 1981 claim.

Respectfully submitted,

HAROLD LILLARD KENNEDY, III 
HARVEY LEROY KENNEDY, SR. 

Kennedy, Kennedy, Kennedy 
& Kennedy

710 First Union Building 
Winston-Salem, North Carolina 27101 
(919) 724-9207

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON 
ERIC SCHNAPPER 
JU DifH  REED

NAACP Legal Defense and 
Educational Fund, Inc.
16th Floor 
99 Hudson Street 

New York, New York 10013 
(212) 219-1900

July 20, 1992 Counsel for Plaintiff-Appellant

22



U.S. EQUAL EViPLOYMJINT OPPORTUNITY COMMISSION 
Washington, DC 20507

Jul i 1992

Office of 
the Chairman

Ms . Barbara A m  wine 
Executive Director
Mr. Richard C. Seymour 
Director of the Employment 

Discrimination" Project
Lawyers' Committee for 
Civil Rights Under Law 
Suite 400
1400 Eye Street, N*W 
Washington, D.C. 200G5
Dear Ms. Arnwine and Mr. Seymour:
We have received your latter concerning the Commission's Policy 
Guidance on "Application of Damages Provisions of the Civil Rights 
Act of 1991 to Pending Charges and Pre-Act Conduct,“ issued cn 
December 27, 1991. The Vice Chairman ana the other Commissioners 
have asked me to respond on their behalf.
The above-cited Policy Guidance is explicitly restricted to the 
damages provisions of the Civil Rights Act. At each point at which 
the Commission's focus is described, the Policy Guidance identifies 
the issue to be addressee, as the retroactivity of the compensatory 
and punitive damages provisions of the Act. (See. a.o. . Policy 
Guidance at pp. 1, 6, 7.) Indeed, the Commission's explicit
conclusion was that it would follow the dictates of the Supreme 
Court's decision in Bower, v. Georgetown University Hospital. 488 
U.S. 204 (1988), “with regard to the retroactivity of the damages 
provisions.11 (See Policy Guidance at p. 7; emphasis added). The
policy guidance thus speaks for itself; it does not address the 
issue of whether other sections of the Civil Rights Act should be 
applied retroactively ard does not preclude the Commission from 
reaching a different result, if warranted based on the law, with 
regard to those provisions. Therefore, the Commission believes it 
is not necessary to issue a public statement to this effect.
The Commission is currently considering the issue of retroactivity 
with regard to other provisions of the Civil Rights Act and will'



Lawyers' Committee for Page Two Civil Rights Under Law

issue guidance on this matte 
have appreciated your input 
bear your thoughtful co:nment3

r as expeditiously as possible. We 
°° the retroactivity issue and will 
in mund throughout this process.

Evan J. 
Chairman



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