Landgraf v. USI Film Products Brief Amicus Curiae in Support of Respondents

    No. 92-757 and No. 92-938

In The

^upmttP ( ta r t at tlp> Intt?b g>ti\tw
October T erm , 1992

Barbara Landgraf,
Petitioner,

USI F ilm  P roducts, Bonar Packaging, I nc, 
and Quantum  Chemical Corporation, 

________  Respondents.

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

M aurice R ivers and R obert C. Davison,
Petitioners,

R oadway Express, In c .,
________  Respondent.

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

BRIEF FOR MIDWEST MOTOR EXPRESS, INC.
AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

Alan J. Thiemann *
Hervey H. Aitken 
Ligia Salcedo
Taylor Thiemann & Aitken 
908 King Street, Suite 300 
Alexandria, Virginia 22314 
(703) 836-9400 
Counsel for Midwest Motor 

Express, Inc., Amicus Curiae
* Counsel of Record

W il s o n  - Ep e s  P r in t in g  Co . ,  In c . - 7 8 9 - 0 0 9 6  - W a s h in g t o n , D .C . 2 0 0 0 1



TABLE OF AUTHORITIES........ ................-... ............ i

INTEREST OF THE AMICUS CURIAE .......... . .......... 2

STATEMENT__________________ __ —... ............ ........  3

SUMMARY OF ARGUMENT............ ......................... ............. .............  5

ARGUMENT.................................... ............ ................... - -  7
I. THE PRINCIPLE UPHELD IN BOWEN

REPRESENTS THE CARDINAL RULE OF 
STATUTORY CONSTRUCTION GOVERNING 
THE RETROACTIVE APPLICATION OF 
FEDERAL CIVIL LEGISLATION............ ........  7

II. BOWEN PRECLUDES THE RETROACTIVE
APPLICATION OF NEW FEDERAL CIVIL 
LEGISLATION, SUCH AS THE CIVIL 
RIGHTS ACT OF 1991, WHERE NO CON­
GRESSIONAL INTENT IS CLEAR.............. . 10

III. THE RETROACTIVE APPLICATION OF 
LEGISLATION, SUCH AS THE CIVIL 
RIGHTS ACT OF 1991, WHICH CREATES 
NEW LIABILITIES AND DUTIES BEYOND 
RESTORATIVE LAW, RESULTS IN STAG­
GERING REAL WORLD CONSEQUENCES.. 13

CONCLUSION ................. ............................ .................... . 17

APPENDIX
Excerpt of Section 1 from H.R. 5 and S. 5 5 -------  la

TABLE OF CONTENTS
Page



11

TABLE OF AUTHORITIES
CASES  Page

Alpo Pet Foods, Inc. v. Ralston Purina Co., 913
F.2d 918 (Fed. Cir. 1990) ......................... ............  13

Baynes v. AT&T Technologies, Inc., 976 F.2d 1370
(1992)........................................ ................ ................ 13

Belknap, Inc. v. Hale, 463 U.S. 491 (1983) .......... 16
Bowen v. Georgetown University Hospital, 488

U.S. 204 (1988) ___________ ________ _______passim
Bradley v. School Board of the City of Richmond,

416 U.S. 696 (1974) _____________________   passim
Crown Cork & Seal Co., 255 NLRB 14, 107 LRRM

1195 (1981) .............       15
Davis v. Omitowoju, 833 F.2d 1155 (3rd Cir.

1989) ................. ............ ..................... .................... . 12
DeVargas v. Mason and Hanger-Silas Mason Co.

Inc., 911 F.2d 1377 (10th Cir. 1990), cert, de­
nied, 111 S. Ct. 799 (1991) ______ ___________ 12,14

Fray v. Omaha World Herald Co., 960 F.2d 1370
(8th Cir. 1992) ................................ .......................  7, 8

Gersman v. Group Health A ss’n, 975 F.2d 886
(D.G. Cir. 1992) .............      12

Gilberton Coal Co., 291 NLRB 344, 131 LRRM 
1329 (1988), enforced, 888 F.2d 1381 (3rd Cir.
1989) .......................    16

Johnson v. Uncle Ben’s, Inc., 965 F'.2d 1363 (5th
Cir. 1992) ________ _______ _____________ _ 11,13

Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494
U.S. 827, 110 S. Ct. 1570 (1990) ........................ .passim

Lambott v. United Tribes Educational Technical
Center, 361 N.W.2d 590 (1985)________ _____  16

Lehigh Metal Fabricators, 267 NLRB 568, 114
LRRM 1064 (1983) .......... ............................. ..........  15

Lehman v. Burnley, 866 F.2d 33 (2nd Cir. 1989).. 12
Leland v. Federal Ins. Adm ’n., 934 F.2d 524 (4th

Cir.), cert, denied, 112 S. Ct. 417 (1991) ........ 12
Luddington v. Indian Bell Telephone, 966 F.2d 225 

(7th Cir. 1992), petition for cert, pending, No.
92-977.................... ............ ................................ ........ 10,13

Mojica v. Gannett Co., 779 F. Supp, 94 (N.D. 111.
1991) 14



I l l

Mozee v. American Commercial Marine Serv. Co.,
963 F.2d 929 (7th Cir.), cert, denied, 113 S. Ct.
207 (1992) .................. ......................................... . 12

National Woodwork Manufacturers A ss’n  v.
NLRB, 386 U.S, 612 (1967)...................................  11

N LRB v. Burkhart Foam, 848 F.2d 825 (7th Cir.
1988)................. ........ ................ .................................  16

N LRB v. Charles D. Bonanno Linen Serv., 782
F.2d 7 (1st Cir. 1986) .................... ............ ............  16

N LRB v. Elco Manufacturing Co., 227 F.2d 675 
(1st Cir. 1955), cert, denied, 350 U.S. 1007
(1956) ....... .................................................................  16

NLRB v. Jarm Enters, 785 F.2d 195 (7th Cir.
1986) ................. ............ ............ ........................ ........  16

NLRB v. Mackay Radio and Telegraph Co., 304
U.S. 333 (1938) ................... ................ ................14-15,16

N LRB v. Remington Rand, Inc., 130 F.2d 919 (2nd
Cir. 1942) ................. ............ ..................................... 16

Pecheur Lozenge Co., 98 NLRB 496, 29 LRRM 
1367 (1952), enforced as modified, 209 F.2d 393,
33 LRRM 2324 (2nd Cir. 1953) ............................. 16

Pension Benefit Guaranty Corp. v. R.A. Gray &
Co., 467 U.S. 717 (1984) ........................... ............ 8

Plymouth Locomotive Works, 261 NLRB 595, 110
LRRM 1155 (1982) ................................................. 15

Simmons v. A.L. Lockhart, 931 F.2d 1226 (8th
Cir. 1991) ............ ............ ............... ............. ............  12

Society for the Propagation of the Gospel in For­
eign Parts v. Wheeler, (1814) 2 Gall. O.C.
105  .................. ..........................................................  8

Storey v. Shearson-American Exp., 928 F.2d 159
(5th Cir. 1991) ....................................... .................. 12

Trans World Airlines v. Independent Federation 
of Flight Attendants, 109 S. Ct. 1225 (1989).... 15

United States v. Northeastern Pharmaceutical &
Chem. Co., Inc., 810 F.2d 726 (8th Cir. 1986),
cert, denied, 484 U.S. 848 (1987) _____________  12

U.S. v. Magnolia Petroleum Co., 276 U.S. 160
(1928) ........................................................ ................  9-10

TABLE OF AU THO RITIES—Continued
Page



IV

TABLE OF AU THO RITIES— Continued
Page

TJsery v. Turner Elkhorn Mining Co., 428 U.S. 1
(1976) ........... ........ .......................... ......... ....................  7, 8

Vogel v. City of Cincinnati, 959 F.2d 594 (6th
Cir.), cert, denied, 113 S. Ct. 86 (1992) ............. 12

Vulcan-TIart Corp. v. NLRB, 718 F.2d 269 (8th
Cir. 1983) ............. ........ ........... .................... ........ ..... 16

Wagner Seed Co. v. Bush, 946 F.2d 918 (D.C. Cir.
1991), cert, denied, 112 S. Ct. 1584 (1992)____  12,13

Welch v. Henry, 305 U.S. 134 (1938) ........... ............ 8

CONSTITUTION
Fifth Amendment__________     8

STATUTES
29 U.S.C. § 111 (c) ... ............ ..................................... . 2
29 U.S.C. § 152(9) ................... ............ ......................... 2
29 U.S.C. § 160 ( b ) ............... .........................................  15
29 U.S.C1. § 1398................      2
42 U.S.C. § 1981... ................ ........ .................... ............  13
Civil Rights Act of 1991, Pub. L. No. 102-166, 105

Stat. 1071.................  passim
§ 402 (a ), 105 Stat,. 1099 .................. ........................ . 11

MISCELLANEOUS
136 Cong. Rec. S16,457 (daily ed. Oct. 22, 1990).... 10
136 Cong. Rec. S16,589 (daily ed. Oct. 22, 1990).... 10
137 Cong. Rec. S15,483, S15,485 (daily ed. Oct. 30,

1991) .............. ........ ..................................... ...........—  11
137 Cong. Rec. S15,472, S15,478 (daily ed. Oct. 30,

1991) ..................... ...................................... —........ ............. 11
137 Cong. Rec. S15,485 (daily ed. Oct. 30, 1991).... 11
Civil Rights Act of 1990: Hearing Before the 

Senate Comm, on Labor and Human Resources
on S. 210b, 101st Cong., 1st Sess. (1989) ....... . 10

Coil and Weinstein, Past Sins or Future Trans­
gressions: The Debate Over Retroactive A p­
plication of the 1991 Civil Rights Act, 18 Em­
ployee Relations Law Journal 5 (1992) ...—....... 13



V

DeMars, Retrospectivity and Retroactivity of Civil 
Legislation Reconsidered, 10 Ohio Northern L.
Rev. 253 (1983)......................................... ...............  7, 9

Fairness in  the Workplace: Restoring the Right 
to Strike: Hearing on S. 55 Before the
Subcomm. on Labor of the Senate Comm, on 
Labor and Human Resources, 103rd Cong., 1st
Sess. (March 30, 1993) ........................................... 3

H.R. 5, 103d Cong., 1st Sess., § 1, 139 Cong. Rec.
H82 (daily ed. Jan. 5, 1993) __.....____________passim

H.R. 4000, The Civil Rights Act of 1990: Joint 
Hearing: Before the Comm, on Education and 
Labor and the Subcomm. on Civil and Constitu­
tional Rights of the Comm, on the J u d ic ia l,
101st Cong., 2d Sess. (1990)________ ______..... 10

Kahn, Completed Acts, Pending Cases, and Con­
flicting Presumptions: The Retroactive Appli­
cation of Legislation A fter  Bradley, 13 George
Mason Univ. L. Rev. 231 (Winter 1990)............  5

Marcus, A Percolating Legal Dispute on Civil 
Rights, The Washington Post, April 17, 1992,
at A21 ...... ............. ...................,.... ............... .......... 4

S. 55, 103d Cong., 1st Sess,, § 1, 139 Cong. Rec.
S191 (daily ed. Jan. 21, 1993) ___________ __ passim

Senate Comm, on Education and Labor, Compari­
son of S. 2926 and S. 1958, 74th Cong., 1st Sess.,
21-22 (1935), reprinted in A  Legislative History 
of the National Labor Reltaions Act, 1935, pp.
1319, 1346 (1985 Reprint, U.S. Government

TABLE OF AU THO RITIES—Continued
Page

Printing Office) .................................... ............ ......  15
Smead, The Rule Against Retroactive Legislation:

A Basic Principle of Jurisprudence, 20 Minn. L,
Rev. 775 (1936) ....... ........................ ................ ..... passim



In The

d m t r t  n f  lift' l i t !tvh  S ta te s
October T erm , 1992

No. 92-757

Barbara Landgraf,
Petitioner,v.

USX F ilm  Products, Bonar Packaging, Inc . 
and Quantum  Chemical Corporation, 

________  Respondents.

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

No. 92-938

Maurice R ivers and R obert C. Davison,
Petitioners,v.

R oadway Express, In c .,
Respondent.

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

BRIEF FOR MIDWEST MOTOR EXPRESS, INC.
AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS



2

Midwest Motor Express, Inc. (“Midwest”) is an inter­
state motor carrier of freight located in Bismarck, ND, 
operating in nine states. Midwest’s interest stems from 
likely legislation pending in Congress that would create 
another retroactive application problem identical to the 
one under the Civil Rights Act of 1991 now before this 
Court. Enactment of such legislation without a clear-cut 
prospective effective date would expose Midwest to serious 
threat of injury. Therefore, amicus seeks resolution by 
this Court of the apparently conflicting precedents on 
retroactive application of federal civil legislation.

Since August 12, 1991, Midwest has been engaged in a 
labor dispute with the International Brotherhood of Team­
sters, Chauffeurs, Warehousemen and Helpers of Amer­
ica (“Teamsters”), within the meaning of the Norris- 
LaGuardia Act (29 U.S.C. § 111(c)), and the National 
Labor Relations Act (“NLRA”) (29 U.S.C. § 152(9)), 
as applied to the Multiemployer Pension Plan Amend­
ments Act of 1980 (“MPPAA”) (29 U.S.C. § 1398).1 
Nevertheless, not unlike the instant appeals under the 
Civil Rights Act of 1991, a proposed amendment to the 
NLRA threatens to turn Midwest’s past legal actions into 
illegal ones—by retroactive application of a new law.

Legislation has been introduced in Congress to amend 
the NLRA (H.R. 5 and S. 55) which contains no effective 
date concerning when an employer may be prohibited 
from hiring permanent replacement workers during eco­

INTEREST OF THE AMICUS CURIAE

1 The Teamsters struck Midwest on August 12, 1991, after 
negotiations over a new contract reached an impasse. Following 
commencement of the strike, the parties resumed bargaining 
with the assistance of a federal mediator, which bargaining has 
continued to the date of this brief without settlement. During 
the course of this labor dispute, Midwest has continued to oper­
ate only by hiring permanent replacements as it is permitted to 
do under current federal law.



3

nomic (wage and benefit) strikes. The relevant identical 
language of H.R. 5 and S. 55 is excerpted and attached 
as Appendix A. Consequently, if that legislation passes 
as currently drafted,2 and if this Court now fails to 
resolve the apparent conflict between Bradley v. School 
Board of the City of Richmond, 416 U.S. 696 (1974) 
and Bowen v. Georgetown University Hospital, 48B U.S. 
204 (1988), Midwest expects that controversy and con­
fusion similar to that engendered by the retroactive appli­
cation of the Civil Rights Act of 1991 will occur. Such 
confusion is likely to result in serious adverse harm to 
Midwest’s business and could subject it to unfair labor 
practice charges and/or costly state litigation. See infra 
at 13-17. The mere prospect of these occurrences is 
jeopardizing Midwest’s ability to remain in business.

Accordingly, amicus has a vital interest in the resolu­
tion of the issues raised in this case. Amicus believes it 
will bring insights and information beyond what is pre­
sented by Petitioners and Respondents, which will be 
useful to the Court in deciding the issues presented.3

STATEMENT
These cases involve contradictory principles governing 

the prospective application of civil laws, which conflict 
this Court so far has been reluctant to resolve. Although 
the principle of prospectivity dates to the Greeks and 
Romans,4 it has not always been followed by this Court.

2 H.R. 5 ad S. 55 were introduced in the Senate and the House 
of Representatives in January 1993. H.R. 5, 1.03rd Cong., 1st 
Sess., § 1, 139 Cong. Rec. H82, (daily ed. Jan. 5, 1993); S. 55, 
103rd Cong., 1st Sess., § 1, 139 Cong. Rec. S191, (daily ed. Jan. 
21, 1993). House and Senate floor action is eminent, and the 
Clinton Administration has endorsed the legislation as drafted. 
Fairness in the Workplace: Restoring the Right to Strike: Hear­
ing on S. 55 Before the Subcomm. on Labor of the Senate Comm, 
on Labor and Human Resources, 103rd Cong., 1st Sess. (March 30, 
1993) (statement of Robert B. Reich, Secretary of Labor).

3 This brief is filed with the written consent of the parties. 
The letters of consent have been filed with the Clerk of Court.

4 As begins the seminal work on the rule against retroactivity: 
“The bias against retroactive laws is an ancient one.” Sinead,



4
At the heart of the dispute is this Court’s holding that 

a court is to apply the law in effect at the time it makes 
its decision, unless doing so would result in “manifest 
injustice” or there is statutory direction (or legislative 
history) to the contrary. Bradley, 416 U.S. at 711. On 
the other hand, this Court more recently reaffirmed that 
“ [Rjetroactivity is not favored in the law. Thus, con­
gressional enactments and administrative rules will not be 
construed to have effect unless their language requires 
this result.” Bowen, 488 U.S. at 208.

There is a compelling reason for this Court to clarify 
its position and to adopt a bright-line, common-sense rul­
ing based on Bowen. As Justice Scalia urged in Kaiser 
Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 
110 S. Ct. 1570, 1579 (1990) (Scalia, J., concurring), 
this Court should overrule Bradley and reaffirm the clear 
intent rule, since retroactive application is “never sought 
(or defended against) except as a means of ‘affecting 
substantial rights and liabilities,’ ” and even procedural 
changes applied retroactively alter such rights. Id. at 
1585. Thus, this Court should heed Justice Scalia’s warn­
ing that “manifest injustice” is “just a surrogate for policy 
preferences” and that justice can mean “whatever other 
policy motivation might make one favor a particular 
result.” Id. at 1587.

Failure to resolve this conflict will lead to continued 
examples of congressional recklessness, as demonstrated 
by the instant cases under the Civil Rights Act of 1991.5 
Midwest contends that the same result will occur in

The Rule Against Retroactive Legislation: A Basic Principle of 
Jurisprudence, 20 Minn. L. Rev. 775, 776-85 (1936).

5 Only controversy, confusion, and expensive and protracted 
litigation has resulted when Congress deliberately leaves the ef­
fective date issue unresolved, as it did in the Civil Rights Act 
of 1991. As of mid-1992, 49 federal courts had ruled against retro­
activity and 35 had ruled in favor of it. See Marcus, A Percolating 
Legal Dispute on Civil Rights, The Washington Post, April 17, 
1992, at A21,



5

federal striker replacement and other legislation, unless 
the cardinal rule upheld in Bowen is reaffirmed.

SUMMARY OF ARGUMENT

Respondents ask this Court to affirm the decisions by 
the Fifth and Sixth Circuits that the Civil Rights Act of 
1991 does not apply retroactively. In support, Midwest 
submits that the judicial chaos surrounding the retro­
active application of legislation is the result of a dramatic 
departure from the historical rale against retroactivity.

Whether Bradley and Bowen can co-exist on a highly 
theoretical basis is, at best, debatable. See infra note 10 
and accompanying text. In practice, however, clarifying 
the existing confusion necessarily depends on rejecting the 
irreconcilable precept which Bradley has been held to 
support that it is not unjust, in most cases, to apply new 
civil legislation retroactively.

The Supreme Court must find Bradley is applied 
wrongly as a “presumption” in favor of retroactivity when­
ever a new liability altering the position of private liti­
gants and parties is involved, whether substantive or pro­
cedural rights are implicated. See Kahn, Completed 
Acts, Pending Cases, and Conflicting Presumptions: The 
Retroactive Application of Legislation After Bradley, 13 
George Mason Univ. L. Rev. 231, 239-40 (Winter 1990). 
To this extent, the Supreme Court should overrule Brad­
ley and reaffirm the long-standing rule of statutory con­
struction that federal civil legislation only applies pros­
pectively, unless there is a clear legislative intent to the 
contrary. Ambiguity-—either intentional or unintentional 
—must be resolved in favor of the prospective application 
of legislation.

Moreover, Petitioners’ interpretation of Bradley repre­
sents a blatant departure from the fundamental principles 
of fairness inherent in the clear intent rule upheld in 
Bowen. Accordingly, Petitioners’ analysis stands wholly 
outside of the implicit constitutional and relevant policy 
factors which this Court must weigh in deciding these



6

cases. Under Petitioners’ view, judicial review, Congress’ 
role, and fairness each is undermined.

First, Petitioners erroneously assume that Respondents 
have acted wrongly in order to argue that Respondents 
have no “vested right to do wrong.” Rivers v. Roadway, 
Pet. Brf. at 29; Landgraf v. USI Film Products, Pet. Brf. 
at 31. Second, Petitioners unpersuasively argue that the 
plain meaning of the Civil Rights Act of 1991 demon­
strates a clear congressional intent to apply the law retro­
actively. Third, Petitioners move beyond the pale and 
assert that, under Bradley, any law (whether procedural 
or substantive) must be presumed retroactive based upon 
whatever label, political spin or policy preference the pre­
vailing members of Congress place on the law, regard­
less of its effect on private parties or “what the original 
statute actually meant.” Rivers v. Roadway, Pet. Brf. at 
38. In Petitioners’ view, if Congress labels a statute re­
medial or restorative, there is no room for judicial scru­
tiny.6 * 8 Landgraf v. USI Film Products, Pet. Brf. at 29-33; 
Rivers v. Roadway, Pet. Brf. at 35-39. This Court must 
reject each of these specious arguments.

Rather than merely a judicial premption useful in in­
terpreting ambiguous legislation, Bowen moreover, repre­
sents the cardinal rule of statutory construction in de­
termining the retroactive application of legislation. By 
clarifying Bowen as such, this Court will preserve the 
appropriate burdens and roles of the legislature and the 
judiciary, including the historical and proper role of judi­
cial review as a check on the power of the legislature 
unfairly to render laws retroactive.

6 Ironically, the one type of law historically not forbidden by
the American principle of prospectivity was the “curative” law 
validating past acts that otherwise would have been void. But
even curative laws that impaired vested rights or otherwise 
worked an injustice to parties were condemned by the American 
principle. See Smead at 786, n.36.



7

ARGUMENT
L THE PRINCIPLE UPHELD IN BOWEN REPRE­

SENTS THE CARDINAL RULE OF STATUTORY 
CONSTRUCTION GOVERNING THE RETROAC­
TIVE APPLICATION OF FEDERAL CIVIL LEG­
ISLATION

As Justice Scalia’s concurring opinion in Bonjorno re­
veals, the principle that laws and customs should apply 
only to future transactions unless expressly stated that 
they apply either to past conduct or to pending trans­
actions dates to the Greeks and Roman law. Bon- 
jorno, 110 S. Ct. at 1586; Fray v. Omaha World Herald 
Co., 960 F.2d 1370, 1374 (8th Cir. 1992). The prin­
ciple, originally one of “natural law” which became a 
legal maxim under English law, was applied as a rule of 
statutory construction, and so found its way into Ameri­
can law.7 In the United States, however, largely as a 
result of judicial review, this rule of statutory construc­
tion was combined with the concept of “vested rights” 
and “justice” to become a part of the concept of justice 
and a limitation on legislative power.8 See Smead at 
776-85.

Thus, the American principle of prospectivity has 
operated to protect vested rights by invalidating or nar­
rowing the application of statutes that might have applied 
retrospectively. These included statutes that expressly

7 As in England, retroactive American laws were held to be 
oppressive and unjust, and it was maintained that the essence of 
law was that it be a rule for the future. Smead at 780, n. 21.

8 In addition to being a rule of statutory construction in Amer­
ican law, the American courts added a judicial limitation on the 
constitutional ability of a legislative body to alter pre-enactment 
rights and conduct. Judicial scrutiny is an important component 
of the American constitutional system which controls legislative 
behavior. See, e.g., Usery v. Turner Elkhorn Mining Co., 428 
U.S. 1, 14-20 (1976). See also DeMars, Retrospectivity and Retro- 
acitvity of Civil Legislation Reconsidered, 10 Ohio Northern L. 
Rev. 253 (1983).



8

were enacted to take effect from a time prior to their 
passage, as well as statutes that were to operate from 
the time of their passage, but affected vested rights and 
past transactions.9 See Smead at 781-787, n.35. The 
fundamental notion has been and should be that, in most 
cases, it is unjust to apply new civil legislation retro­
spectively.

The rule against retroactivity thus embodies American 
constitutional notions of fairness and due process. Today, 
these factors must be considered by Congress and the 
courts in determining the validity of civil legislation which 
Congress explicitly makes retroactive. See, e.g., Pension 
Benefit Guaranty Corp. v. R. A. Gray & Co., 467 U.S. 
717 (1984) (rejecting a Fifth Amendment due process 
challenge to a federal statute that retroactively imposed 
liability on employers who withdrew from multiemployer 
pension plans); Turner Elkhorn, 428 U.S. I.10 There­

9 The prohibition included retrospective laws as defined by 
Mr. Justice Story in Society for the Propagation of the Gospel in 
Foreign Parts v. Wheeler, (1814) 2 Gall. C.C. 105:

. . . .  Upon principle, every statute, which takes away or im­
pairs vested rights acquired under existing law, or creates a 
new obligation, imposes a new duty, or attaches a new dis­
ability in respect to transactions or considerations already 
past, must be deemed retrospective. . . .

10 The Supreme Court has found the rational basis standard to 
be equivalent to the standard applied in Welch v. Henry, 305 U.S. 
134, 147 (1938), where the Court held that a retroactive tax was 
constitutional unless its application was so “harsh and oppressive” 
as to violate due process. R.A. Gray, 467 U.S. at 733. This standard 
requires that there be a rational connection between the legisla­
tion’s purpose and its retroactive effect. It is consistent with the 
rule against the retroactive application of legislation where Con­
gressional intent is not explicit or clear. In the latter case, a 
statute need not be invalidated, but simply applied prospectively.

Arguably, the Bradley presumption in favor of retroactivity ab­
sent “manifest injustice” arose from cases in which retroactivity 
was explicit or clearly intended but “injustice” resulted. See 
Bonjorno, 110 S. Ct. at 1584. Theoretically, in this very limited 
context, Bradley remains viable. See also Fray, 960 F.2d at 1374 
(Bradley did not “silently sweep away the traditional principle”).



9

fore, when Congress makes a statute expressly retroac­
tive, presumably it has reviewed these considerations and 
has resolved the inherent tensions involving fundamental
fairness.

Accordingly, it is incongruous to suggest that legisla­
tion not explicitly made retroactive should be presumed 
to be retroactive, and then reviewed perfunctorily based 
upon a standard (such as Petitioners’ conclusory reme­
dial scheme), that ignores the fundamental issue of fair­
ness which is the cornerstone of the historical rule of 
statutory construction against retroactivity. See DeMars 
at 264-272 (because the vested rights—remedial scheme 
approach utilizes analytically conclusive terms, it does not 
lead a court to consider the question of fairness which is 
also basic to the issue of statutory retrospectivity).

In particular, as with the Civil Rights Act of 1991, 
where Congress considered and rejected explicit retroac­
tive application and failed to reach a consensus on its in­
tent, after reviewing the requisite constitutional considera­
tions, no finding of retroactivity is justified or should be 
compelled. See infra at 10-12.

Therefore, Midwest submits that the rule reiterated 
in Bowen is not only that prospectively must be up­
held in the absence of clear intent, but further, that 
prospectivity must govern in determining clear intent when 
retroactivity is not explicit. Thus, to the extent that 
Bradley establishes a presumption in favor of retroactiv­
ity in the absence of clear intent or in determining clear 
intent, Bradley is wrong and should be overruled.

Accordingly, Midwest urges this Court to find that the 
cardinal rule of statutory construction in determining the 
retroactive application of federal civil legislation is the 
principle (and not merely the “presumption”) that leg­
islation must be applied prospectively, unless Congress 
specifically provides to the contrary. See Smead at 781 
n.22; U.S. v. Magnolia Petroleum Co., 276 U.S. 160, 
162 (1928) (“statutes are not to be given retroactive



1 0

effect or construed to change the status of claims fixed 
in accordance with earlier provisions unless the legisla­
tive purpose to do so plainly appears”). But see Lud- 
dington v. Indiana Bell Telephone, 966 F.2d 225, 228 
(7th Cir. 1992), petition for cert, pending, No. 92-977 
(dictum) (prospectivity “is resolved, but not all the way” 
because we are “speaking only of a presumption” against 
retroactivity). Only in concert with this paramount rule, 
can ancilliary rules of construction utilized by the courts 
to determine statutory meaning and legislative intent (i.e., 
plain meaning) effectively operate without injury to the 
historical notions of fairness and justice upon which the 
principle is based.

II. BOWEN PRECLUDES THE RETROACTIVE AP­
PLICATION OF NEW FEDERAL CIVIL LEGISLA­
TION, SUCH AS THE CIVIL RIGHTS ACT OF 1991, 
WHERE NO CONGRESSIONAL INTENT IS CLEAR

The express retroactive provisions of the Civil Rights 
Act of 1990 stirred much debate and disagreement as 
Congress grappled with concerns of fairness and consti­
tutionality.11 President Bush vetoed the 1990 act,11 12 and 
Congress failed to override the veto. 136 Cong. Rec. 
816,589 (daily ed. Oct. 22, 1990). In 1991, the bill’s 
sponsors dropped the express retroactive provisions in 
order to gain acceptance and, instead, inserted language 
providing that “the amendments made by this Act shall

11 See, e.g., H.R. 4000, The Civil Rights Act of 1990; Joint Hear­
ing: Before the Comm, on Education and Labor and the Sub- 
comm. on Civil and Constitutional Rights of the Comm, on the 
Judiciary, 101st Cong., 2d Sess. (1990) ; Civil Rights Act of 
1990: Hearing Before the Senate Comm, on Labor and Human 
Resources on S. 2104, 101st Cong., 1st Sess. (1989).

12 President’s Message to the Senate Returning Without Ap­
proval the Civil Rights Act of 1990, 26 Weekly Comp. Pres. Doc. 
1632-34 (Oct. 22, 1990), reprinted in 136 Cong. Rec. S16,457, 
S16,458 (daily ed. Oct. 24, 1990).



11
take effect upon enactment.” 13 §402 (a), 105 Stat. 
1099. Arguably, this language explicitly states that the 
Act applies prospectively. Alternatively, the inference of 
Congress’ action is that prospectivity is intended. See 
e.g., National Woodwork Manufacturers Ass’n v. NLRB, 
386 U.S. 612, 640 (1967).

Because of its contradictory legislative history, how­
ever, the 1991 provision leaves open whether the law 
applies retroactively to cases pending on the date of enact­
ment or whether the law applies only prospectively to 
future cases.14 Clearly, the Act was passed without 
agreement on the issue, and apparently various mem­
bers of Congress hoped this Court would resolve the 
known conflicting legal authorities in Bradley and Bowen 
in their favor. Congress thereby intentionally left its 
meaning unresolved. Thus, Petitioners’ argument that the 
plain meaning of the Civil Rights Act of 1991 compels 
retroactivity fails. See Johnson v. Uncle Ben’s, Inc,, 965 
F.2d 1363, 1372-1373 (5th Cir. 1992).

In Bonjorno, the Supreme Court simply reaffirmed that 
“where the congressional intent is clear, it governs.” 
Bonjorno, 110 S. Ct. at 1577. But enactment of an 
ambiguous statute such as the Civil Rights Act of 1991,

13 On November 21, 1991, President Bush signed the Civil Rights 
Act of 1991. Pub. L. No. 102-166, 105 Stat. 1071 (1991). In 
addition to reversing several Supreme Court decisions, the Act 
made substantial substantive and procedural changes including 
changes in adjudicator (jury) and damages (compensatory and 
punitive damages).

14 See 137 Cong. Rec. S15,483, S15,485 (daily ed. Oct. 30, 1991) 
(interpretive memorandum submitted by Sen. Danforth, the bill’s 
Republican sponsor, arguing against retroactivity) ; 137 Cong. 
Rec. S15,472, S15.478 (daily ed. Oct. 30, 1991) (interpretive 
memorandum submitted by Sen. Dole arguing against retroac­
tivity) ; 137 Cong. Rec. S15.485 (daily ed. October 30, 1991) (in­
terpretive memorandum by Sen. Kennedy, the bill’s Democratic 
sponsor, arguing for retroactivity by characterizing the law as a 
“restoration of a prior rule”). Notably, no sponsor characterized 
the legislation as merely procedural or remedial.



1 2

or a silent statute such as the proposed federal striker 
replacement legislation, can defy any meaningful attempt 
to discern congressional intent. Under these circum­
stances, the historical constitutional underpinnings of 
American law require that Bowen prevail as the cardinal 
rule of statutory construction, not merely as “presump­
tion” to be utilized in deciding among competing policy 
considerations. In effect, reaffirming the Bowen clear 
intent rule would ensure that, in the future, Congress will 
deliberate and provide clear intent on the retroactive appli­
cation of any legislation that contains potential constitu­
tional and fairness concerns.15 Therefore, because noth­
ing in the Civil Rights Act of 1991, or its legislative his­
tory, expresses a clear congressional mandate requiring 
retoractive application, the statute must not apply to pend­
ing cases.16

15 While the clear intent rule does not require that Congress 
make explicit its intent to apply a statute retroactively, it does 
require that Congress make its intent clear. Bonjorno, 110 S. Ct. 
at 1577. Hence, the cardinal rule against retroactivity may be 
superseded only by express statutory language or by implication 
when the statute “requires” it, i.e., when limiting the statute to 
prospective application would render it completely ineffective by 
defeating its entire purpose. See e.g., United States v. Northeastern 
Pharmaceutical & Chem. Co., Inc., 810 F.2d 726, 733 (8th Cir. 
1986), cert, denied, 484 U.S. 848 (1987) (in order to be effective, 
CERCLA had to reach past conduct).

16 Not surprisingly, the large majority of circuit courts have 
applied the Bowen “presumption” against retroactivity finding no 
clear expression of legislative intent to the contrary. See Lehman 
v. Burnley, 866 F.2d 33, 37 (2nd Cir. 1989) ; Davis v. Omitowoju, 
833 F.2d 1155, 1170-1171 (3rd Cir. 1989) ; Leland v. Federal Ins. 
Adm’n., 934 F.2d 524, 528-529 (4th Cir.), cert, denied, 112 S. Ct. 
417 (1991) ; Storey v. Shears on-American Exp., 928 F.2d 159, 161- 
162 (5th Cir. 1991) ; Vogel v. City of Cincinnati, 959 F.2d 594, 
597-598 (6th Cir. 1992) ; Mozee v. American Commercial Marine 
Serv. Co., 963 F.2d 929, 936 (7th Cir.), cert, denied, 113 S. Ct. 207 
(1992) ; Simmons v. A.L. Lockhart, 931 F.2d 1226, 1230 (8th Cir. 
1991) ; DeVargas v. Mason and Hanger-Silas Mason Co. Inc., 911 
F.2d 1377, 1392 (10th Cir. 1989), cert, denied, 111 S. Ct. 799 
(1991) ; Gersman v. Group Health Ass’n, 975 F.2d 886, 900 (D.C. 
Cir. 1992) ; Wagner Seed Co. v. Bush, 946 F.2d 918, 924 (D.C.



13

III. THE RETROACTIVE APPLICATION OF LEGISLA­
TION, SUCH AS THE CIVIL RIGHTS ACT OF 1991, 
WHICH CREATES NEW LIABILITIES AND DU­
TIES BEYOND RESTORATIVE LAW, RESULTS 
IN STAGGERING REAL WORLD CONSEQUENCES

The Civil Rights Act of 1991 significantly expands 
both 42 U.S.C. Section 1981 and Title VII of the Civil 
Rights Act of 1964 to include new causes of action as 
well as new classes of plaintiffs. The enhanced remedies 
for intentional discrimination under Title VII in effect 
create new liabilities for sexual harassment in situations 
that do not involve tangible job detriments, such as “hos­
tile environment” cases in which the plaintiff suffered no 
specific adverse employment action that resulted in eco­
nomic harm. Monetary damages were never available be­
fore in such cases under Section 1981 or Title VII. 
Rights under Section 1981 are extended to post-formation 
contractual relationships. In effect, conduct insufficient 
to impose liability on employers before the Act was 
passed, may now be enough to result in a finding of dis­
crimination against those same employers. Coil and 
Weinstein, Past Sins or Future Transgressions: The De­
bate Over Retroactive Application of the 1991 Civil 
Rights Act, 18 Employee Relations Law Journal 5, 6 
(1992); see e.g., Baynes v. AT&T Technologies, Inc., 
976 F.2d 1370, 1374-1375 (1922); Luddington, 966 
F.2d at 229.

Nevertheless, Petitioners argue that the Civil Rights 
Act of 1991 affects only procedure or remedies, and thus 
should be applied retroactively.17 In addition to preclud­
ing a meaningful analysis of fairness, a key problem with 
this approach is that the label applied to a particular

Cir. 1991), cert, denied, 112 S. Ct. 1584 (1992) ; Alpo Pet Foods,
Inc. v. Ralston Purina Co., 913 F.2d 918, 922-923 (Fed. Cir. 1990).

17 If Congress had, in fact, intended only to restore prior law 
or to provide remedial rights that did not create new liabilities, 
Midwest submits it could have written language to achieve that 
limited result, See Johnson, 965 F.2d 1363,



14

change may not reflect whether the change alters sub­
stantive rights or conduct. The label becomes a “pol­
icy” tool for proponents of retroactive legislation. See 
Bonjorno, 110 S. Ct. at 1585.

Petitioners also argue that, because one purpose of 
the Civil Rights Act of 1991 was Congress’ intent to 
overturn recent Supreme Court decisions on discreet em­
ployment law issues, retroactivity must be presumed. See 
Rivers v. Roadway, Pet. Brf. at 35-39. While a few 
courts, grappling with the conflict between Bradley and 
Bowen, have held that retroactive application of a new 
law is appropriate where Congress clearly intended to 
overrule recent case law and restore the law to its former 
state, other courts reject this approach as too speculative. 
See Mojica v. Gannett Co., 779 F. Supp. 94, 97 (N.D. 
111. 1991) (retroactive application of the Civil Rights 
Act of 1991 upheld in part on the basis that the Act was 
meant to “restore” prior law); but see DeVargas, 911 
F.2d at 1387. By reaffirming Bowen as the cardinal rule 
of statutory construction against reoractivity, this Court 
would eliminate the expansive dangers inherent in Peti­
tioners’ approach. Only prospective application of a new 
law would be appropriate, absent a clear congressional 
intent to apply a statute retroactively in order to restore 
recent prior law.

The potential unfair application of likely federal striker 
replactment legislation to Midwest’s ongoing labor dis­
pute starkly demonstrates the absurdity of Petitioners’ 
position. Under Petitioners’ interpretation of Bradley, 
the mere conclusory characterization (albeit erroneous) 
of federal striker replacement legislation as “restorative” 
would result in the retroactive application of legislation 
to Midwest.18

18 Proponents of H.R. 5 and S. 55 are characterizing the legis­
lation as “restorative law” designed to overturn the Supreme 
Court’s decisions in NLRB v. Maekay Radio and Telegraph Co.,



15

This result could require the National Labor Relations 
Board (“NLRB” ) to find that Midwest retroactively com­
mitted an unfair labor practice by hiring some permanent 
replacements after August 12, 1991 under the newly 
amended law.19 See Attachment A for proposed language 
of H.R. 5 and S. 55 adding 29 U.S.C. § 158(a)(6). 
Moreover, such a result could turn the current labor 
dispute on its head by converting the Teamsters strike 
against Midwest from an economic strike into an unfair

304 U.S. 333 (1938), and Trans World Airlines v. Independent 
Federation of Flight Attendants, 109 S. Ct. 1225 (1989). See 
note 2 supra, at 3. The legislative history of the NLRA conclu­
sively refutes this position and demonstrates that the changes 
sought by H.R. 5 and S. 55 would alter the long-standing legal 
right of an employer to permanently replace economic strikers af­
firmed under the NLRA. The legislative history of the Wagner 
Act of 1935 (the original NLRA) preserved the right of an 
employer to hire replacements, whether permanent or temporary. 
Although the Wagner Act did not address the issue directly, a U.S. 
Senate Education and Labor Committee memorandum regarding 
the Wagner bill states:

[The bill] provides that the labor dispute shall be “current,” 
and the employer is free to hasten its end by hiring a new 
permanent crew of workers and running the plant on a normal 
basis . . . .  The broader definition of “employee” in [the bill] 
does not lead to the conclusion that no strike may be lost or 
that an employer may not hire new workers, temporary or 
permanent, at will.

See Senate Comm, on Education and Labor, Comparison of S. 2926 
and S. 1958, 74th Cong., 1st Sess. 21-22 (1935), reprinted in A  
Legislative History of the National Labor Relations Act, 1935, pp. 
1319, 1346 (1985 Reprint, U.S. Government Printing Office).

19 Ironically, while the Board may not issue a complaint based 
upon conduct occurring more than six months before filing and 
service of the charge (29 U.S.C. § 160 (b)), the six month limita­
tions period does not begin to run until the party adversely af­
fected receives actual or constructive notice of the unfair labor 
practice. See Lehigh Metal Fabricators, 267 NLRB 568, 114 
LRRM 1064 (1983) ; Plymouth Locomative Works, 261 NLRB 
595, 110 LRRM 1155 (1982) ; Crown Cork & Seal Co., 255 NLRB 
14, 107 LRRM 1195 (1981).



16

labor practice strike. See NLRB v. Burkart Foam, 848 
F.2d 825 (7th Cir. 1988); NLRB v. Jarm Enters, 785 
F.2d 195 (7th Cir. 1986); NLRB v. Charles D. Bonanno 
Linen Serv., 782 F.2d 7 (1st Cir. 1986); Vulcan-Hart 
Corp. v. NLRB, 718 F.2d 269 (8th Cir. 1983). The 
most significant aspect of an unfair labor practice strike 
is that strikers are entitled to reinstatement to their for­
mer positions upon an unconditional offer to return to 
work. Pecheur Lozenge Co., 98 NLRB 496, 29 LRRM 
1367 (1952), enforced as modified, 209 F.2d 393, 33 
LRRM 2324 (2nd Cir. 1953). In effect, the economic 
strikers would be entitled to reinstatement if the NLRB 
were to find that Midwest comniited an unfair labor prac­
tice which had the effect of prolonging the economic 
strike (i.e., that hiring permanent replactments presump­
tively prolonged Midwest’s strike). See Vulcan-Hart 
Corp., 718 F.2d 269; Gilberton Coal Co., 291 NLRB 
344, 131 LRRM 1329 (1988), enforced, 888 F.2d 1381 
(3rd Cir. 1989). These strikers would have to be re­
instated even though Midwest hired permanent replace­
ments. See Mackay, 304 U.S. 333.

Moreover, Midwest would be required to terminate its 
current permanent replacements, even though they were 
legally hired. See NLRB v. Elco Manufacturing Co., 
227 F.2d 675 (1st Cir. 1955), cert, denied, 350 U.S. 
1007 (1956); NLRB v. Remington Rand, Inc., 130 F.2d 
919 (2nd Cir. 1942). Midwest’s picture could become 
even more oppressive because the terminated permanent 
replacement workers could sue Midwest for breach of 
contract and misrepresentation in North Dakota state 
court upon their discharge to make room for reinstate­
ment of the economic strikers. See Belknap, Inc. v. Hale, 
463 U.S. 491 (1983).20 The weight of such multiple

20 The Supreme Court of North Dakota has upheld similar breach 
of contract suits. See Lambott v. United Tribes Educational Tech­
nical Center, 361 N.W.2d 590 (1985).



17

litigation alone could force Midwest out of business. In­
deed, the real world consequences to Midwest of apply­
ing federal striker replacement legislatino retroactively 
under Bradley based upon mere labels could be staggering.

Therefore, it is in determining a clear congressional 
intent that judicial review and the principle of fairness 
embodied in the rule of statutory construction against 
retroactivity become imperative. Petitioners segregate 
this critical analysis entirely from the determination of 
the “plain meaning” and “clear intent” of the statute by 
misinterpreting Bradley to require the retroactive appli­
cation of any new federal civil legislation which is labeled 
“procedural” or “restorative”. As Midwest has shown, 
this argument is untenable.

CONCLUSION

Because of the conflicting principle in Bradley that 
retroactivity is not unjust and is presumed, the door is 
open for Congress to pass federal civil legislation (such 
as the Civil Rights Act of 1991 and the proposed federal 
striker replacement legislation), without resolving its ap­
plicability to current disputes. While such a state of 
confusion may enable Congress to pass controversial leg­
islation, it improperly allows Congress to shift the burden 
of deciding the issue of retroactivity onto private litigants 
and the courts at an exorbitant cost.

Therefore, this Court should guide the lower courts 
and restore judicial order and economy, should encourage 
Congress to provide clear intent, and should preserve the 
important, long-standing origins and purpose of the cardi­
nal rule of statutory construction against retroactivity. 
The Court would accomplish all of these objectives by 
reaffirming Bowen and overruling Bradley. Absent ex­
plicit retroactive language or clear congressional intent, 
legislation must apply only prospectively. This is the 
bright-line, common-sense rule needed to restore funda­
mental fairness to the concept of retroactivity.



18

Based upon the foregoing, Midwest submits that the 
decisions of the Court of Appeals for the Fifth Circuit in 
Landgraf v. USI Film Products, and of the Court 
of Appeals for the Sixth Circuit in Rivers and Davison 
v. Roadway, are correct in finding that the Civil Rights 
Act of 1991 applies prospectively, and should be affirmed.

Respectfully submitted,

Alan J. Thiemann *
Hekvey H. Aitken 
Ligia Salcedo
Taylor Thiemann & Aitken 
908 King Street, Suite 300 
Alexandria, Virginia 22314 
(703) 836-9400
Counsel for Midwest Motor 

Express, Inc., Amicus Curiae
* Counsel of Record



APPENDIX



l a

APPENDIX

EXCERPT OF SECTION 1 FROM H.R. 5 AND S. 55

 ̂ &

January 5, 1993

❖

A BILL
To amend the National Labor Relations Act and the 

Railway Labor Act to prevent discrimination based 
on participation in labor disputes.

Be it enacted by the Senate and House of Representa­
tives of the United States of America in Congress assem­
bled,

SECTION 1. PREVENTION OF DISCRIMINATION 
DURING AND AT THE CONCLUSION 
OF LABOR DSPUTES.

Section 8(a) of the National Labor Relations Act (29 
U.S.C. 158(a)) is amended—

(1) by striking the period at the end of paragraph 
(5) and inserting or”, and

(2) by adding at the end thereof the following 
new paragraph:

“(6) to promise, to threaten, or to take other 
action—

“(i) to hire a permanent replacement for an 
employee who—

“(A) at the commencement of a labor 
dispute was an employee of the employer



2 a

in a bargaining unit in which a labor or­
ganization—

“(I) was the certified or recognized 
exclusive representative, or

“ (II) at least 30 days prior to the 
commencement of the dispute had 
filed a petition pursuant to section 
9(c)(1 ) on the basis of written au­
thorizations by a majority of the unit 
employees, and the Board has not 
completed the representation proceed­
ing; and

“(B) in connection with that dispute 
has engaged in concerted activities for the 
purpose of collective bargaining or other 
mutual aid or protection through that labor 
organization; or

“ (ii) to withhold or deny any other employ­
ment right or privilege to an employee, who 
meets the criteria of subparagraphs (A) and 
(B) of clause (i) and who is working for or 
has unconditionally offered to return to work 
for the employer, out of a preference for any 
other individual that is based on the fact that 
the individual is performing, has performed, or 
has indicated a willingness to perform bargain­
ing unit work for the employer during the labor 
dispute.”

*  *  *  *