Gibbs v. General Motors Corporation Supplemental Brief for Plaintiff-Appellant

    No. 91-55170

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

LEROY GIBBS,

Plaintiff-Appellant,

v.

GENERAL MOTORS CORPORATION, et al.

Defendant-Appellees.

On Appeal From the United States District Court 
for the Central District of California 

No. 85-4725-AHS

SUPPLEMENTAL BRIEF FOR PLAINTIFF-APPELLANT

LAW OFFICES OF LEROY S. WALKER
PETER F. LAURA
MICKEY J. WHEATLEY
6300 Wilshire Boulevard
Suite 1455
Los Angeles, CA 90048 
(213) 966-4555

JULIUS L. CHAMBERS 
ERIC SCHNAPPER 
NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson St., 16th Floor 
New York, NY 10013 
(212) 219-1900

Attorneys for Plaintiff-Appellant



TABLE OF CONTENTS

I. INTRODUCTION .....................................................................................................  1

II. THE PLAIN LANGUAGE OF THE ACT APPLIES SECTION 101 TO PRE­
EXISTING CLAIMS...................................................................................................  3

A. The Language of Sections 402(a), 402(b), and 109(c)...................................  3

B. Congressional Rejection of Amendments Excluding Coverage of Existing
Claims ..............................................................................................................  8

III. THE LEGISLATIVE DEBATES INDICATE THAT THE ACT APPLIES TO
PRE-EXISTING CLAIMS ........................................................................................ 15

A. Kennedy, Edwards and Fish ..........................................................................  15

B. The Dispute Regarding Section 402(b) ........................................................  18

IV. SECTION 101 SHOULD BE PRESUMED APPLICABLE TO PRE-EXISTING
CLAIM S.......................................................................................................................  23

A. Bradley Remains Controlling Precedent In This Circuit .............................  24

B. Bradley Requires That Section 101 Be Applied to Pre-Existing Claims . . .  25

C. New Remedies and Procedures For Enforcing Existing Rights Are
Presumptively Applicable to Pre-Existing Claims ..........................................  30

D. Restorative Legislation Is Presumptively Applicable to Pre-Existing
Claims ..................  35

V. PATTERSON V. MCLEAN CREDIT UNION SHOULD NO LONGER BE
APPLIED RETROACTIVELY.................................................................................  38

CONCLUSION.......................................................................................................................  41

l



TABLE OF AUTHORITIES

Adams v. Brinegar, 521 F.2d 129 (7th Cir. 1975)............................................................. 33, 34

Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975).....................................................................................................  27

Allen v. United States,
542 F.2d 176 (3rd Cir. 1976) .....................................................................................  33

American Trucking Assns. v. Smith,
110 L.Ed.2d 148 (1990) ..............................................................................................  40

Ayers v. Allain, 893 F.2d 732 (5th Cir. 1990)........................................................................  36

Bennett v. New Jersey,
470 U.S. 632 (1985)......................................................................................................  24

Bond v. Stanton,
555 F.2d 172 (7th Cir. 1977) .......................................................................................  13

Bowen v. Georgetown University Hospital,
488 U.S. 204 (1985)................................................................................................. 24, 25

Bradley v. Richmond School Board,
416 U.S. 696 (1974)......................................................................................................... 2

Bristow v. Drake Street, Inc.,
1992 U.S. Dist. LEXIS
499 (N.D. 111. 1992) .....................................................................................................  28

Brown v. General Services Administration,
425 U.S. 820 (1976)..................................................................................................  32-34

Bryant v. Ford Motor Co.,
886 F.2d 1526 (9th Cir. 1989)...................................................................................... 24

Bunch v. United States,
548 F.2d 336 (9th Cir. 1977) .....................................................................................  34

Bush v. State Industries, Inc.,
599 F.2d 780 (6th Cir. 1979) .....................................................................................  35

Cases: Pages:

ii



Pages:

Carlton v. BAWW, Inc.,
751 F.2d 781 (5th Cir. 1985) ........................................................................................ 5

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971)......................................................................  39

Colautti v. Franklin, 439 U.S. 379 (1979).................................................................................  5

Commonwealth of Northern Mariana Islands v. Kamano,
917 F.2d 379 (9th Cir. 1990) .....................................................................................  24

Cooper Stevedoring of Louisiana, Inc. v. Washington,
556 F.2d 268 (5th Cir. 1977) .....................................................................................  31

Cornelia v. Schweiker,
728 F.2d 978 (8th Cir. 1984) ........................................................................................ 6

Dale Baker Oldsmobile, Inc. v. Fiat Motors
of N. America, 794 F.2d 213 (6th Cir. 1986).............................................................  30

DeGurules v. I.N.S.,
833 F.2d 861 (9th Cir. 1987) .....................................................................................  30

Delta Computer Corp. v. Samsung Semiconductor &
Telecommunications Co.,
879 F.2d 662 (9th Cir. 1989) .................................................................................  24, 30

Downs v. Blount, 170 F.15 (9th Cir. 1909)............................................................................. 28

E.E.O.C. v. Westinghouse Elec. Corp.,
765 F.2d 389 (3d Cir. 1985) ........................................................................................  27

Eastland v. Tennessee Valley Authority,
553 F.2d 364 (5th Cir. 1977) ...................................................................................... 33

EEOC v. Arabian American Oil Co.,
I l l  S.Ct. 1227, 112 L.Ed.2d 274 (1991) .................................................................  3,8

Eikenberry v. Callahan,
653 F.2d 632 (D.C. Cir. 1981) ................................................................................. 6, 31

iii



Ettinger v. Johnson,
518 F.2d 648 (3rd Cir. 1975) ...................................................................................... 33

Federal Deposit Corp. v. New Hampshire 
Insurance Co., 1991 U.S. App.
LEXIS 30071 (9th Cir. 1991)...................................................................................... 25

Federal Deposit Ins. Corp. v. Howse,
736 F. Supp. 1437 (S.D. Tex. 1990) ..........................................................................  25

Ferrero v. Associated Materials, Inc.,
923 F.2d 1441 (11th Cir. 1991)........................................................................  28, 30, 31

Freeborn v. Smith, 69 U.S. 160 (1865)...................................................................................  28

Friel v. Cessna Aircraft Co.,
751 F.2d 1037 (9th Cir. 1985).................................................................................  30, 31

Gibbs v. General Motors,
904 F.2d 531 (9th Cir. 1990) ............................................................................. 1, 28, 38

Graham v. Bodine Electric Co.,
1992 U.S. Dist. LEXIS 679 (N.D. 111. 1992) ...............................................................  5

Hallowed v. Commons, 239 U.S. 506 (1916) ........................................................................  34

Hastings v. Earth Satellite Corp.,
628 F.2d 85 (D.C. Cir. 1980) ...................................................................................  6, 31

Huntley v. Department of Health.
Education and Welfare, 550 F.2d 290
(5th Cir. 1977)..............................................................................................................  33

In re Amatex Corp.,
755 F.2d 1034 (3d Cir. 1985) ........................................................................................ 5

In re Grey, 29 B.R. 286 (D. Kan. 1983).................................................................................  37

In re Pacific Far East Lines,
889 F.2d 242 (9th Cir. 1989) ...................................................................................... 24

In re Resolution Trust Corp.,
888 F.2d 57 (8th Cir. 1989) ........................................................................................ 30

Pages:

iv



Pages:

In re Salem Mortg. Co.,
783 F.2d 626 n.14 (6th Cir. 1986).................................................................................  5

James Beam Distilling Co. v. Georgia,
115 L.Ed.2d at 494 ................................................................................................. 39, 40

Kaiser Aluminum & Chemical Co. v. Bonjomo,
110 S.Ct. 1570 (1990)...................................................................................................  24

Koger v. Ball, 497 F.2d 702 (4th Cir. 1974)......................................................................  32-34

Kruso v. International Telephone and 
Telegraph Corp., 872 F.2d 1416
(9th Cir. 1989)..............................................................................................................  30

Laubie v. Sonesta International Hotel Corp.,
752 F.2d 165 (5th Cir. 1985) ...................................................................................... 37

Lavespere v. Niagara Machine & Tool Works Inc.,
910 F.2d 167 (5th Cir. 1990) ...................................................................................... 30

Leake v. Long Island Jewish Medical Center,
869 F.2d 130 (2d Cir. 1989) ........................................................................................ 37

Library of Congress v. Shaw,
478 U.S. 310 (1986)...................................................................................................... 8

Long v. Carr, (N.D. Ala., No. L88-CV-263-RCF) .............    5

Lorance v. AT&T Technologies, Inc,
490 U.S. 900 (1989)  ..............................................................................................  8

Louisville & Nashville R.R. Co. v. Mottley,
219 U.S. 467 (1911).................................................................................................... 12

Lussier v. Dugger,
904 F.2d 661 (11th Cir. 1990).....................................................................................  36

Mackey v. Lanier Collections Agency & Serv., Inc.,
486 U.S. 825 (1988)......................................................................................................  5

Mahroom v. Hook, 563 F.2d 1369 (9th Cir. 1977) ...............................................................  32

v



Martin v. Wilks, 490 U.S. 755 (1989)........................................................................................ 8

Matter of Busick,
831 F.2d 745 (7th Cir. 1987) ........................................................................................ 5

Matter of Reynolds,
726 F.2d 1420 (9th Cir. 1984)........................................................................................ 7

Mojica v. Gannett Co.,
57 FEP Cas. 538 (N.D. 111. 1991) .............................................................................5, 27

Mrs. W. v. Tirozzi, 832 F.2d 748 (2d Cir. 1987).................................................................... 36

Nelson v. Ada, 878 F.2d 277 (9th Cir. 1989) ........................................................................  24

Nichols v. Stapleton,
877 F.2d 1401 (9th Cir. 1989).....................................................................................  30

O’Neil v. Walt Disney Prod.,
439 U.S. 1132 (1979)....................................................................................................  6

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

Place v. Weinberger,
497 F.2d 412 (6th Cir. 1974) ...................................................................................... 33

Price Waterhouse v. Hopkins,
490 U.S. 228 (1989)......................................................................................................  8

Reeves v. International Tel. and Tel. Corp.,
616 F.2d 1342 (5th Cir. 1980).....................................................................................  30

Revis v. Laird, 627 F.2d 982 (9th Cir. 1980) ........................................................................  32

Reynolds v. Martin (No. 91-15237)..........................................................................................  2

Russello v. United States,
464 U.S. 16 (1983)......................................................................................................... 4

Samuelson v. Susen,
576 F.2d 546 (3rd Cir. 1978) .....................................................................................  30

Pages:

vi



Shirey v. Devine, 670 F.2d 1188 (D.C. Cir. 1982).................................................................  31

Sperling v. United States, 515 F.2d 465 (3d C ir .) .................................................................  33

Standard Oil of Cal. v. United States,
429 U.S. 17 (1976)........................................................................................................ 39

Stender v. Lucky Stores, Inc.,
1992 U.S. Dist. LEXIS 274 (N.D. Cal. 1992) .................................................. 5, 27, 28

Thompson v. Sawyer,
678 F.2d 257 (D.C. Cir. 1982) ..........................................................................  7, 33, 34

Thompson v. School Board of Newport News,
472 F.2d 177 (4th Cir. 1972) ...................................................................................... 26

Thorpe v. Housing Authority of Durham,
393 U.S. 268 (1969)................................................................................................. 16, 26

Trageser v. Libbie Rehabilitation Center,
590 F.2d 87 (4th Cir. 1978) ........................................................................................ 30

United States v. Blue Sea Line,
553 F.2d 445 (5th Cir. 1977) ...................................................................................... 30

United States v. Dallas County,
739 F.2d 1529 (11th Cir. 1984)...................................................................................  36

United States v. Femandez-Toledo.
745 F.2d 703 (11th Cir. 1985).....................................................................................  31

United States v. Kairys,
782 F.2d 1374 (7th Cir. 1986)...................................................................................  5, 31

United States v. Peppertrce Apartments,
942 F.2d 1555 (11th Cir. 1991)...................................................................................  30

United States v. The Schooner Peggy.
5 U.S. 103 (1 Cranch) (1801)........................................................................ ............. 26

United States v. Wong Kim Bo,
472 F.2d 720 (5th Cir. 1982) ........................................................................................ 4

Pages:

vii



Walt Disney Productions v. Air Pirates,
581 F.2d 751 (9th Cir. 1978) ........................................................................................ 5

Wards Cove Packing Co. v. Atonio,
490 U.S. 1642 (1989)............................................................................... 8, 11, 12, 18-23

Weahkee v. Powell, 532 F.2d 727 (10th Cir. 1976)...............................................................  33

West Virginia Univ. Hospitals v. Casey,
111 S.Ct. 1138 L.Ed.2d 68 (1991).................................................................................  8

White v. Estelle, 556 F.2d 1366 (5th Cir. 1977).................................................................... 36

Womack v. Lynn, 504 F.2d 267 (D.C. Cir. 1974).................................................................  33

Yakima Valley Cablevision, Inc. v. F.C.C.,
794 F.2d 737 (D.C. Cir. 1986) .....................................................................................  31

Statutes: Pages:

105 Stat. 1072 ............................................................................................................................ 2

California Fair Employment Practices and 
Housing Act, Government Code,
§§ 12900 et seq................................................................................................................ 28

Fair Labor Standards A c t ..................................................................................................... 34, 35

Section 101, Civil Rights Act of 1991 .....................................................................................  2

Section 109, Civil Rights Act of 1991 ...............................................................................3, 4, 6

Section 717, Civil Rights Act of 1964 (As Amended)......................................................  32-34

Title VII, Civil Rights Act of 1964 ................................................  Passim

Other Authorities: Pages:

136 Cong. Rec. (1990) .......................................................................................................... 9, 13

Pages:

viii



137 Cong. Rec. (1991)

Pages: 

9-12, 14-23

C.Endlich, Commentary on the Interpretation
of Statutes (1888)..........................................................................................................  28

EEOC Policy Guidance, Dec. 12, 1991 .................................................................................  27

Executive Order 11246 ............................................................................................................  35

H.R. Rep. 101-644
(101st Cong., 2d sess. 1990)..........................................................................................  9

Letter of Attorney General Thornburgh to Senator Edward Kennedy, April 3, 1990 . . . .  14

Memorandum for the President, Oct. 22, 1990 .................................................................... 14

Rule 60, Federal Rules of Civil Procedure ..........................................................................  14

S. Rep. 101-315 (101st Cong., 2d sess.) (1990)......................................................................  17

Washington Post, Oct. 31, 1991............................................................................................... 12

tx



No. 91-55170

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

LEROY GIBBS,

Plain tiff-Appellan t,

v.

GENERAL MOTORS CORPORATION, et al.

Defendant-Appellees.

On Appeal From the United States District Court 
for the Central District of California 

No. 85-4725-AHS

SUPPLEMENTAL BRIEF FOR APPELLANTS 

I. INTRODUCTION

The complaint in this action was filed in July, 1985, some four years prior to Patterson 

v. McLean Credit Union, 491 U.S. 164 (1989). In the first appeal, decided in 1990, this court 

applied Patterson to substantially narrow the section 1981 claims that could be considered in 

this proceeding, remanded for consideration of whether the disputed promotion at issue 

involved "a new and distinct relationship," and was thus actionable under Patterson. Gibbs v. 

General Motors, 904 F.2d 531, 534-35 (9th Cir. 1990). We discussed in our earlier briefs the 

question of whether the circumstances of this case satisfy the narrow interpretation of section 

1981 announced in Patterson.



Since the filing of the original briefs in this case, Congress enacted the Civil Rights Act 

of 1991, which expressly overrules Patterson. Section 101 of the Act amends section 1981 to 

add the following subsection:

(b) For the purposes of this section, the term "make and enforce contracts" 
includes the making, performance, modification, and termination of contracts, 
and the enjoyment of all benefits, privileges, terms, and conditions of the 
contractual relationship.

105 Stat. 1072. We urge that the enactment of this legislation requires reversal of the decision 

below, reinstatement of plaintiffs’ harassment claims, and consideration of plaintiffs promotion 

claim without regard to the Patterson "new and distinct relationship" requirement. In short, this 

case should be remanded for a jury trial of all discrimination claims that arose on or after July 

15, 1982. See 904 F.2d at 535.

We advance three distinct arguments. First, we urge in parts II and III that Congress 

intended the Civil Rights Act to apply to pre-existing claims. Second, we argue in part IV that, 

if the court regards the intent of Congress as unclear, the applicability of section 101 to pre-Act 

claims is required by Bradley v. Richmond School Board, 416 U.S. 696 (1974); a decision on this 

ground would be narrower, since the Bradley principles turn on the particular section involved. 

Third, we urge in Part V that Patterson should no longer be applied retroactively; this is the 

narrowest contention, since it would encompass only section 1981 claims that arose prior to the 

June 1989 decision in Patterson.' 1

1 Similar issues are presented in another case now pending in this court, Reynolds v. Martin (No. 91- 
15237). The question presented in Reynolds is whether section 114 of the Act, authorizing post-judgment 
interest against the United States, applies to pre-Act claims. Reynolds differs from this case in at least three 
major respects: Reynolds involves a modification of sovereign immunity, section 114 is not restorative (see 
part IV, D, infra), and the plaintiffs in Reynolds do not argue, in the alternative, for non-retroactive 
application of an overturned Supreme Court decision. (See part V, infra).

- 2 -



II. THE PLAIN LANGUAGE OF THE ACT APPLIES SECTION 101 TO PRE-EXISTING 
CLAIMS

A. The Language of Sections 402(a), 402(b), and 109(c)

The Act contains three specific provisions governing the applicability of its various 

sections to pre-existing claims. First, section 109, prohibiting discrimination against certain 

Americans working abroad,2 is expressly limited to acts of discrimination occurring after 

November 21, 1991:

(c) Application of Amendments. The amendments made by this 
section shall not apply with respect to conduct occurring before 
the date of the enactment of this Act.

Second, section 402(b) exempts from all provisions of the Act "certain ... cases" involving 

claims3 that already existed prior to November 21, 1991:

(b) Certain Disparate Impact Cases. Notwith- standing any other 
provision of this Act, nothing in this Act shall apply to any 
disparate impact case for which a complaint was filed before 
March 1, 1975, and for which an initial decision was rendered 
after October 30, 1983.

Third, the applicability of the Act to pre-existing claims not governed by section 109(c) or 

402(b) is governed by section 402(a):

(a) Except as otherwise specifically provided, this Act and the 
amendments made by this Act shall take effect upon enactment.

The interpretation of section 402(a) is the central question at issue.

It is clear for several reasons that section 402(a) cannot mean, as some defendants now 

contend, that no provisions of the Act apply to any pre-existing claim. The specific language

: This provision overrules EEOC v. Arabian American Oil Co., I l l  S.Ct. 1227, 112 L.Ed.2d 274 (1991).

3 In fact Congress understood there to be only one such case, the continuing litigation against the
Wards Cove Packing Co.

- 3 -



of sections 109(c), 402(b) and 402(a) embodies a careful and deliberate scheme in which 

Congress dealt expressly with the issue of which pre-existing claims should and should not be 

covered by the Act. Congress clearly decided there were certain pre-existing claims to which 

the Act should not be applied -- pre-existing claims involving allegedly discriminatory conduct 

occurring outside the United States, and certain very old instances of alleged disparate impact. 

Equally clearly, however, Congress made a deliberate decision not to exclude from coverage by 

the Act those pre-existing claims that were not exempted by sections 109(c) or 402(b), such as 

intentionally discriminatory conduct occurring within the United States, or disparate impact 

cases filed after March 1, 1975. This carefully crafted and precise scheme would be violated 

if the courts were now to declare the Act inapplicable to pre-existing disparate treatment claims 

that arose within the United States, or to disparate impact claims that were filed after 1975.

The conclusion that section 402(a) contemplates application of the Act to pre-existing 

claims not exempted by sections 109(c) and 402(b) is dictated by several well established 

cannons of con- struction. First,

[wjhere Congress includes particular language in one section of a statute but 
omits it in another section of the same Act, it is generally presumed that 
Congress acts intentionally and purposely in the disparate inclusion or exclusion.

Russello v. United States. 464 U.S. 16. 23 (1983) (quoting United States v. Wong Kim Bo, 472

F.2d 720, 722 (5th Cir. 1982)). The decision to exempt from section 109, and from that section

alone, "conducting occurring before the date of enactment", can only be read as a decision not

to place any such limitation on the other provisions of the Act. Second, if the general language

of section 402(a) were interpreted to exclude application of the statute to any existing claim,

sections 109(c) and 402(b) would be utterly redundant.

- 4 -



As our cases have noted in the past, we are hesitant to adopt an interpretation 
of a congressional enactment which renders superfluous another portion of the 
same law.

Mackey v. Lanier Collections Agency & Serv., Inc., 486 U.S. 825, 837 (1988); see also Colautti v. 

Franklin, 439 U.S. 379, 392 (1979) (reading a statute to render a section "redundant or largely 

superfluous" violates "the elementary cannon of construction that a statute should be 

interpreted so as not to render one part inoperative."). Several decisions applying the Civil 

Rights Act to pre-existing claims have relied on the express exclusion of such claims in sections 

109 and 402(b).4

The courts of appeals have repeatedly held that where Congress has expressly limited 

only certain parts of a law to post-Act claims, Congress must have intended that the balance 

of the statute would apply to pre-existing claims. In re Amatex Corp., 755 F.2d 1034, 1037 (3d 

Cir. 1985) ("Since none of these statutory exceptions are applicable here, we conclude that the 

1984 Act controls" the pre-existing claim.); In re Salem Mortg. Co., 783 F.2d 626, 631 n.14 (6th 

Cir. 1986) (express limitation as to only certain subsections "implies that, except for those 

subsections specifically excepted ... the provisions ... apply to pending cases,"); United States v. 

Kairys, 782 F.2d 1374, 1382 and n.13 (7th Cir.). cert, denied, 476 U.S. 1153 (1986); Matter of 

Busick, 831 F.2d 745, 748 (7th Cir. 1987); Carlton v. BAWW, Inc., 751 F.2d 781, 787 n.6 (5th 

Cir. 1985). Where Congress intended that an entire statute — rather than just specific sections - 

- be inapplicable to existing claims, it has not hesitated to expressly so provide. See, e.g., Walt

4 Mojica v. Gannett Co., 57 FEP Cas. 538, 539 (N.D. 111. 1991); Slender v. Lucky Stores, Inc., 1992 U.S. 
Dist. LEXIS 274 (N.D. Cal. 1992) (Memorandum and Order, pp. 3-4); Graham v. Bodine Electric Co., 1992 
U.S. Dist. LEXIS 679 (N.D. 111. 1992) (Memorandum Opinion and Order, pp. 3, 7); Long v. Carr, (N.D. Ala., 
No. 1:88-CV-263-RCF), Order, Jan. 31, 1992, p. 5 n. 4.

- 5 -



Disney Productions v. Air Pirates, 581 F.2d 751, 754 (9th Cir. 1978) cert, denied sub. nom. O’Neil 

v. Walt Disney Prod., 439 U.S. 1132 (1979).

The provisions of sections 109(c) and 402(b) show that Congress knew full well what

language to use if it wished to exempt a category of pre-existing claims from the Act, and that

Congress deliberately utilized such explicit language where, and only where, it wanted to create

an exemption.5 That section 402(a) establishes a different rule of application than sections

109(c) and 402(b) is emphasized by the very terms of the statutory language. The provisions

of section 402(a) control "except as otherwise specifically provided." (Emphasis added). This

language makes clear that the specific provisions of section 109(c) and 402(b) are exceptions to,

and thus necessarily different from, the otherwise applicable general rule under sections 402(a).

If, as defendants contend, section 402(a) precludes application of the Act to any existing claims,

it would have the following nonsensical meaning:

Except as provided in section 109(c), declaring that provision inapplicable to pre­
existing claims, and in section 402(b), declaring the Act inapplicable to certain 
pre-1975 pre-existing claims, this Act shall not apply to any pre-existing claims.

Similarly, section 402(b), where relevant, controls "notwithstanding any other provision of the

Act." But if section 402(a) already excludes all pre-existing claims, this language would be

equally unintelligible. Section 402(b) would then mean:

Notwithstanding section 402(a). which declares this Act inapplicable to any pre­
existing claims, the Act shall not apply to certain pre-existing claims.

5 See Hastings v. Earth Satellite Corp.. 628 F.2d 85, 92-93 (D.C. Cir. 1980) ("the absence of a provision 
prohibiting retroactivity is significant" because other amendments to the same statute had been expressly 
inapplicable to pre-act claims) (emphasis in original) cert, denied, 449 U.S. 905 (1980); Eikenberry v. Callahan, 
653 F.2d 632, 633-34 n.5 (D.C. Cir. 1981) (1980 amendment to 28 U.S.C. § 1331(a) regarding federal 
jurisdiction held applicable to pending cases because, in part, 1979 amendment to 28 U.S.C. § 1343 had been 
expressly limited to deprivation of rights "occurring after the date of enactment"; "It cannot be gainsaid that 
Congress knows how to restrict the retroactive application of the laws it enacts if it so wishes"); Cornelia v. 
Schweiker, 728 F.2d 978, 988 (8th Cir. 1984) ("Congress could have excluded pre-effective date fees had it 
chosen to do so. It has not done so and we will not imply such a limitation.")

- 6 -



The words "except" and "notwithstanding" necessarily mean that section 402(a) establishes a rule 

different than the exemption for certain pre-existing claims contained in sections 109(c) and 

402(b).

Section 402(a) provides that "the amendments made by this Act shall take effect upon 

enactment." (Emphasis added).6 If all or most of the amendments made by the Act contained 

new standards of conduct for employers, the statute could in a meaningful sense "take effect" 

upon enactment, even if all pre-Act cases were exempt, because employers would presumably 

bring their current practices into conformity with the Act as soon as it became law. But almost 

all of "the amendments made by this Act" are entirely remedial. They do not render illegal 

previously lawful practices, but provide (or restore) certain procedures, standards and remedies 

which the courts are to use in resolving and redressing claims. The amendments incorporating 

these remedial provisions can "take effect upon enactment" in a meaningful way only if they 

apply to pre-existing claims. On the date of enactment there were, of course, no cases to 

remedy involving post-Act conduct. Actual relief under the remedial amendments, if limited 

to post-Act conduct, would not as a practical matter be awarded for many years after 1991. In 

the eight Supreme Court cases overturned by the Act, as Congress was well aware,7 the 

employment discrimination claim at issue was on average nine years old by the time the

6 Matter o f Reynolds, 726 F.2d 1420, 1423 (9th Cir. 1984):

While not dispositive on the issue before us, the fact that Congress 
expressed its intention that the statute take effect upon enactment is some 
indication that it believed that application of its provisions was urgent. We 
certainly cannot construe this expression of congressional concern as a 
direction that the law should not be applied to pending matters.

(Emphasis in original). See Thompson v. Sawyer, 678 F.2d 257, 280 (D.C. Cir. 1982) (application to pre­
existing claims supported by fact Congress did not defer effective date).

7 137 Cong. Rec. H 3885 (daily ed. June 4, 1991) (Rep. Gunderson).

- 7 -



litigation reached the Court;8 in four of the eight cases the Court remanded the claim for even 

further proceedings. At that rate it would be many years before most amendments made by 

the Act, if limited to post-Act conduct, could as a practical matter actually "take effect."

Even more incongruously, if section 402(a) were construed to exempt all pre-existing 

claims, the law generally in "effect" in most cases until the mid-1990’s would be not the Civil 

Rights Act of 1991, but the very Supreme Court decisions that Congress overwhelmingly voted 

to overturn. For many years to come a majority of decisions interpreting and applying § 1981 

would be governed by Patterson, not section 101. If the Civil Rights Act were construed in this 

manner, a majority of the instances in which the discredited Supreme Court decisions are 

applied may well occur after Congress voted to set aside those very decisions. In light of the 

typical nine-year history of those decisions, it is likely that courts would still be attempting to 

interpret rejected decisions like Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), even 

after the turn of the twenty-first century. When Congress provided in section 402(a) that 

amendments overturning Wards Cove and Patterson would "take effect upon enactment", it 

cannot have meant that those very decisions would as a practical matter remain in effect until 

the end of the century.

B. Congressional Rejection of Amendments Excluding Coverage of Existing Claims

8 Patterson v. McLean Credit Union, 491 U.S. 164 (1989) (plaintiff harassed 1972-1982, fired 1982); 
Wards Cove Packing Co. v. Atonio, 490 U.S. 1642 (1989) (filed in 1974); Price Waterhouse v. Hopkins, 490 U.S. 
228 (1989) (plaintiff denied partnership in 1982); EEOC v. Arabian American Oil Co., I l l  S.Ct. 1227, 113 
L.Ed.2d 274 (1991) (plaintiff dismissed in 1974); Martin v. Wilks, 490 U.S. 755 (1989) (original suit filed in 
1974; disputed consent decree entered in 1981); Lorance v. AT&T Technologies, Inc, 490 U.S. 900 (1989) 
(seniority system adopted in 1979; plaintiff laid off in 1982); West Virginia Univ. Hospitals v. Casey, 111 S.Ct. 
1138, 113 L.Ed.2d 68 (1991) (disputed practice occurred in January 1986); Library o f Congress v. Shaw, 478 
U.S. 310 (1986) (Title VII complaints filed in 1976 and 1977).

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The language of sections 109(c), 402(b), and 402(a), specifically exempting some but not 

all pre-existing claims from application by the Act, in fact represents a considered and 

deliberate rejection of express proposals that all pre-existing claims be exempt. During the 

congressional consideration of the Civil Rights Act a series of proposals -- all unsuccessful — 

were made to add specific language that would have expressly limited the application of the 

legislation to acts of discrimination occurring after its effective date. The fact that the plain 

language of the bill does not include such a limitation is thus of considerable importance.

(1) 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.9

(2) Another such amendment was proposed but then withdrawn during the 1990 

deliberations of the House Committee on Education and Labor.10

(3) 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 Michcl-La Falce 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.11

’ II.R. Rep. 101-644, pt. 2, p. 71 (101st Cong., 2d sess. 1990); 136 Cong. Rec. H 6786 (Rep. Moorhead) 
(daily ed. Aug. 2, 1990) (”[w]hen 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 H.R. Rep. 101-644. pi. 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 .... 
[T]he amendment was subsequently withdrawn")

11 137 Cong. Rec. II 6747 (daily ed. Aug. 3, 1990).

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The Michel-LaFalce substitute, however, was rejected by a vote of 238 to 188.12

(4) 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.13

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

Michel14 proposed this language as part of a substitute, but it too was rejected, by a vote of 

266 to 162.15 (5) This same restrictive language was included in a bill

introduced in the Senate in 1991 by Senator Dole, but that proposed legislation garnered only 

eight cosponsors.16

(6) A proposal to bar coverage of all pre-existing claims was rejected in the climactic

October 1991 negotiations. The language now contained in section 402(a) of the Civil Rights

Act was utilized in section 22 of the S.1745, proposed by Senator Danforth in the summer of

1991. Senator Murkowski objected to then section 22 of Danforth’s bill precisely because it

would apply the legislation to all pending cases. Senator Murkowski explained:

During Senate consideration of S.1745. the Civil Rights Act of 1971,1 intend to 
offer an amendment that will inject a much needed element of fairness into the 
bill.

12 Id. at H 6768.

13 137 Cong. Rec. S 3023 § 14 (daily cd. March 12, 1991).

14 137 Cong. Rec. II 3898 (daily cd. June 4. 1991) (§ 15).

15 137 Cong. Rec. II 3908 (daily cd. June 4, 1991).

16 137 Cong. Rec. S 3021 (daily cd. March 12, 1991).

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As presently drafted, Section 22 of S.1745 would apply retroactively to all 
cases pending on the date of enactment regardless of the age of the case. My 
amendment will limit the retroactive application of S.1745 with regard to 
disparate impact cases for which a complaint was filed before March 1, 1975 
and for which an initial decision was rendered after October 30, 1983.

To the best of my knowledge, Wards Cove Packing Co. v. Atonio is the 
only case that falls within this classification .... My amendment is very limited in 
scope....17

Murkowski’s letter expressly offered a proposal, ultimately adopted in section 402(b), to exempt 

the Wards Cove Company from the general applicability of the Act to pre-existing claims.

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. Senator Kennedy, one of the key participants, described 

the negotiations:

Many Senate Republicans and the administration favored including 
language stating that the bill applied to no pending cases. Instead, the Senate 
accepted Senator Murkowski’s amendment, which only keeps the bill from 
applying to the parties in the Wards Cove case itself....

Many of the provisions of the Civil Rights Act of 1991 are intended to 
correct erroneous Supreme Court decisions and to restore the law to where it 
was prior to those decisions. In my view, these restorations apply to pending 
cases, which is why the supporters of the Murkowski amendment sought specific 
language to prevent the restorations from applying to that particular case....

17 Letter to Senate colleagues, September 15, 1991, reprinted in 137 Cong. Rec. S 15954 (daily ed. Nov. 
5, 1991).

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All of us, on both sides of the aisle, are well aware of the numerous 
tradeoffs involved in enacting this complex but extremely important 
compromise.18

Congress was well aware when it approved the compromise bill that the Administration had 

proposed, and Kennedy had rejected, a per se exclusion of all pending cases from coverage by 

the Act; that aspect of the negotiations was described in a Washington Post story printed the 

day of the vote.19

In sum, 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. It would be 

singularly inappropriate for the courts to read into the Act the precise limitation which 

Congress repeatedly rejected.

Congress, before taking final action, considered the question as to what 
exceptions, if any, should be made.... The court cannot add an exception based 
on equitable grounds when Congress forbore to make such an exception.

Louisville & Nashville R.R. Co. v. Mottley, 219 U.S. 467, 478-79 (1911); Bradley v. Richmond

School Board, 416 U.S. 696, 716 n.23 (1974) ("we are reluctant to read into the statute the very

1! 137 Cong. Rec. S 15964 (daily cd. November 5, 1991); see also id. at S 15953 (Sen. Murkowski) (the
amendment adding section 402(b) "was adopted on compromise negotiation on Senate bill 1745. The White 
House, Senator Danforth, and the managers of the bill, Senator Hatch and Senator Kennedy, all agreed to 
the amendment").

19 Washington Post, Oct. 31, 1991:

"Sen. Edward M. Kennedy (D. Mass.), the principal Democratic architect of the bill, 
fought the [Wards Cove exemption] provision last year. But this year he accepted the 
provision in an effort to stave off an even broader exception.

"’The administration tried to prevent all victims of discrimination with cases currently 
pending in the courts from obtaining the benefit of the bill’, said Kennedy’s spokesman, Paul 
Donovan. ’Senator Kennedy was able to convince them to drop this broad provision. 
Unfortunately, he was not able to convince them to drop it for the Wards Cove case itself.”’

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... limitation that Congress eliminated."). In several instances the courts of appeals, applying 

new statute to a pre-existing claim, have emphasized that Congress had defeated an amendment 

to prohibit such applications. See, e.g., Bond v. Stanton, 555 F.2d 172, 173-74 (7th Cir. 1977), 

cert, denied, 438 U.S. 916 (1978); Gates v. Collier, 559 F.2d 241, 243 n.9 (5th Cir. 1977) reh’g 

denied 588 F.2d 828 (5th Cir. 1979). As part III, infra, observes, there are some differences in 

what members of Congress said or wrote after the language of the Civil Rights Act had been 

Finalized. But what Congress actually did in rejecting limiting proposals is entirely clear and 

free of ambiguity. Particularly where, as here, Congress was clearly divided about whether to 

exclude pre-existing claims, the actual and very deliberate choice made by a majority of 

Congress, not the preferences of scattered individual members, is of controlling importance.

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 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.20 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."21 The veto 

message stated that the President was sending to Congress a memorandum "explaining in detail 

the defects that make S. 2104 unacceptable."22 That detailed memorandum, written by the 

Attorney General, specified which aspect of the legislation the Administration objected to

20 136 Cong. Rec. S 9968 (daily ed. July 18, 1990).

21 136 Cong. Rec. 16562 (daily ed. Oct. 24, 1990).

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regarding pre-Act claims: "Section 15 unfairly applies the changes in the law made by S. 2104 

to cases already decided."2* 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.23 24

In the 1991 debates Administration supporters argued, somewhat more narrowly, that the 

reopening of final judgments should be governed by Rule 60 of the Federal Rules of Civil 

Procedure25

The recent Eighth Circuit decision in Fray v. Omaha World Herald Co., (April 3, 

1992),26 misreads in several material respects the legislative history regarding the application 

of the Act to pre-existing claims. First, the Eighth Circuit appears to have been entirely 

unaware that express proposals to exclude such claims were repeatedly rejected by Congress. 

Second, the Eighth Circuit was apparently unaware of the 1990 veto memorandum explaining 

the administration’s objections; thus the court in Fray misunderstood the President to be 

objecting to applying the Act to still pending cases, when in fact his objection was to applying 

the law "to cases already decided." (Slip opinion, pp. 10, 13, 14) Third, Fray asserts that 

Congress in 1991 lacked the votes to override a veto, and therefore removed from the bill all

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

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

23 137 Cong. Rec. H 3934 (daily ed., June 5, 1991) (Rep. Goodling).

25 Nos. 91-2439, 91-243, 91-2713.

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aspects of the legislation to which the President had objected in 1990. (Slip opinion, pp. 13, 

14). In fact, however, changed political circumstances in the fall of 1991 deprived the President 

of the votes needed to sustain a veto, and perhaps of the will to do so; the bill to which the 

President agreed in October, 1991, contained numerous provisions, such as jury trials and 

punitive damages in Title VII cases, to which the President had vehemently objected in 

October, 1990.

III. THE LEGISLATIVE DEBATES INDICATE THAT THE ACT APPLIES TO PRE­
EXISTING CLAIMS

The final language of the Civil Rights Act was agreed upon in negotiations on October 

24, 1991. During the debates which followed, members of the House and Senate made at times 

contradictory statements about the meaning of the compromise language, including differing 

statements regarding whether the Act applied to pre-existing claims. Despite these differences, 

two things are clear. First, most members who actually spoke about this issue on the floor of 

the House or Senate agreed that the Act, except as specifically provided, applied to pending 

cases. Second, the Administration and its supporters adamantly insisted on inclusion of section 

402(b), a provision which would have been quite superfluous had they actually believed the 

entire statute was inapplicable to pre-existing claims.

A. Kennedy, Edwards and Fish

The original sponsors and leading proponents of the bill were Senator Kennedy in the 

Senate, and Representatives Edwards and Fish in the House. Kennedy was the principal 

Democratic sponsor of the final compromise language.27 Both Kennedy and Edwards, 

discussing the matter explicitly, insisted that the Act applied to pending cases unless that

27 137 Cong. Rec. S 15485 (daily ed. Oct. 30, 1991).

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application would be manifestly unjust, and Representative Fish expressly endorsed Edwards’ 

statement.

Senator Kennedy was the first member of Congress to address this matter on the floor

after the October 24 compromise was reached. Kennedy argued that application of the Act to

the pre-existing claims was consistent with Bradley, since the Act was remedial and restorative:

Ordinarily, courts in such cases apply newly enacted procedures and remedies to 
pending cases. That was the Supreme Court’s holding in Bradley v. Richmond 
School Bd., 416 U.S. 696 (1974). And where a new rule is merely a restoration 
of a prior rule that had been changed by the court, the newly restored rule is 
often applied.... It was with that understanding that I agreed to be the principal 
Democratic sponsor of the Danforth-Kennedy substitute.28

In a later speech Kennedy again described to the Senate the decision in Bradley, as well as the

holding in Thorpe v. Housing Authority of Durham, 393 U.S. 268 (1969):

Courts frequently apply newly enacted procedures and remedies to pending 
cases. That was the Supreme Court holding in Bradley v. Richmond School Bd.,
416 U.S. 696 (1974) and Thorpe v. Housing Authority, 393 U.S. 268 (1969), in 
which the Court stated: 'The general rule ... is that an appellate court must 
apply the law in effect at the time it renders its decision".29

No member of either house ever questioned the accuracy of Kennedy’s description of Bradley

and Thorpe.

Representative Edwards also cited Bradley as establishing "[t]he general rule", observing 

that "the great weight of the caselaw supports the application of this bill to pending cases."30 

In addition to offering a detailed analysis of the legislation under the Bradley standard,31 

Edwards argued at length that a failure to apply the Act to existing claims would frustrate the

M 137 Cong. Rec. S 15485 (daily cd. Oct. 30, 1991) (Sen. Kennedy).

29 137 Cong. Rec. S 15963 (daily ed. Nov. 5, 1991) (Sen. Kennedy).

50 137 Cong. Rec. H 9531 (daily cd. Nov. 7, 1991) (Rep. Edwards).

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substantive purposes of the Act. First, he pointed out, limiting the Act to future cases would 

mean that the very Supreme Court decisions overwhelmingly repudiated by Congress would 

continue to be enforced for many years.32 Second, Edwards urged that a failure to apply the 

Act to existing claims would give defendants "an undeserving windfall from the intervening 

Supreme Court errors."33 No member of the Congress ever argued that it would be desirable 

to apply the repudiated Supreme Court cases for years to come, or that it would be unfair to 

apply to defendants legal prohibitions they well knew existed at the time of their actions.

Representative Fish, the chief House Republican sponsor of the bill, expressly endorsed 

Edwards’ analysis:

[T]he gentleman from California [Mr. Edwards] inserted a legislative history into 
this debate. I would like to associate myself with two particular elements of that 
legislative history.... [W]ith respect to the effective date in section 402, I think 
it should be clear that the bill applies to pending cases.34

The analysis of the controlling legal principles advanced by Kennedy and Edwards was 

the same as had been propounded in 1990 by the committee reports. The 1990 House Judiciary 

Report observed:

As a general rule, the law at the time of the decision should apply to a case.
Bradley v. Richmond School Board, 416 U.S. 696, 711 (1974). But the court 
should not apply a legal rule retroactively if "doing so would result in manifest 
injustice or legislative history to the contrary." Id. at 711.35

The Minority Views appended to the 1990 committee reports did not question this

characterization of Bradley as the relevant legal standard. Rather, the minority, in language

52 137 Cong. Rec. H 9530-31 (daily ed. Nov. 7, 1991) (Rep. Edwards).

33 Id. at H 9530 (Rep. Edwards).

34 Id. at H 9549 (Rep. Fish).

35 H.R. Rep. 101-644, pt.2, p. 45 (101st Cong. 2d sess.) (1990); see also S. Rep. 101-315, p. 59 (101st 
Cong., 2d sess.) (1990) (citing Bradley).

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entirely consistent with the Bradley standard, argued that the legislation should not interfere 

with "vested rights" already finally adjudicated,36 and that it would be "unfair" to apply to a 

pending case a legal standard different from that which existed when the conduct at issue 

occurred.37

B. The Dispute Regarding Section 402(b)

The single most controversial provision of the October 24 compromise was section 

402(b). It was understood that section 402(b) in fact applied only to a single lawsuit, the still 

pending case against the Wards Cove Packing Co.38 A firestorm of congressional reaction was 

precipitated by an October 31, 1991, Washington Post story describing how the Wards Cove 

Company had paid $175,000 to a lobbyist to obtain the exemption in section 402(b).39

When the Civil Rights Act first passed the Senate on October 30, 1991, section 402(b) 

was inadvertently omitted. Republican conservatives regarded the addition of this subsection 

as so important that Senator Dole took the extraordinary step of insisting that the bill be 

returned to the Senate floor for further action and a separate vote to add this provision. When 

the bill thus came before the Senate a second time. Senate opponents of section 402(b) argued

16 H.R. Rep. 101-644, pt. 1, p. 145 (minority views), pt. 2, p. 71 (minority views) (101st Cong. 2d 
sess.)(1990).

37 H.R. Rep. 101-644, pt. 1, p. 145 (minority views) ("Employers should not have past employment 
practices judged by standards which were arguably first created in 1990.... [I]t is unfair for Congress to 
change the rules in the middle of the game...."), pt. 2 p. 195 ("it is simply unfair and constitutionally 
troublesome to legislate on the assumption that employers should have anticipated these changes and adjusted 
their behavior accordingly") (101st Cong. 2d sess.)(1991). See also id. at pt. 2, p. 145 n. 32 (distinguishing 
"curative" legislation).

38 See 137 Cong. Rec. S 15953-54 (Sen. Murkowski) (daily ed. Nov. 5, 1991).

39 137 Cong. Rec. H 9555 (daily ed. Nov. 7, 1991) (quoting story).

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it was indefensible to exempt the Wards Cove case from legal standards applicable to all other

pending and future cases. Senator Adams denounced the proposal to provide

a special exemption from the Civil Rights Act of 1991 for Wards Cove Packing 
Co.... I found at the end of those negotiations ... a special section put in that 
took out the plaintiffs in the Wards Cove case, an incredible piece of special 
interest legislation.... Only one case ... involving one company — Wards Cove 
Packing Co... was being taken out.... [T]his case should be settled ... under the 
standards enunciated in the Griggs case. What this amendment would do would 
prevent that.... [A]ll of the various pending cases I think should be tried under 
Griggs. That is the whole purpose of this legislation.40

Senator Akaka stressed that section 402(b) would take from the Wards Cove employees rights

and remedies available to all other plaintiffs:

[I]f the Senate passes [section 402(b)], we effectively deny these workers the 
right to legal redress that this bill now extends to all other victims of racial 
discrimination in employment. It is an extremely cruel irony that the plaintiffs 
in Wards Cove versus Atonio, the very case which we seek to overturn in this Act, 
would be the only American workers deprived of having the merits of their claim 
considered under the Griggs standard.41

Senator Simon denounced section 402(b) as "an exemption for one company".42

Senator Kennedy, who defended addition of section 402(b) as part of the original 

negotiated compromise, acknowledged that the provision would treat the Wards Cove case 

differently than all other pending cases. He argued, however, that adoption of section 402(b) 

would demonstrate to the courts that the balance of the legislation did apply to pre-existing 

claims:

Many of the provisions of the Civil Rights Act of 1991 are intended to correct 
erroneous Supreme Court decisions and to restore the law to where it was prior 
to those decisions. In my view, those restorations apply to pending cases, which

40 137 Cong. Rec. H 15950, 15965 (daily ed. Nov. 5, 1991).

41 137 Cong. Rec. S 15950 (daily ed. Nov. 5, 1991).

42 1 37 Cong. Rec. S 15967 (daily ed. Nov. 5, 1991)

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is why the supporters of the Murkowski amendment sought specific language to 
prevent the restorations from applying to that particular case. In fact, the 
adoption of the Murkowski amendment makes it more likely that the 
restorations in the act will apply to all cases except the Wards Cove case itself. 
Ironically, the defeat of the Murkowski amendment would make it more likely 
the courts would not apply the restorations to any pending cases....43

A total of 22 Senators voted against adding section 402(b) to the bill.44

The compromise bill brought up on the floor of the House on November 7 contained

section 402(b). At the beginning of the House debates, the proposed procedural "rule"

governing consideration of the bill was bitterly opposed by Representatives outraged by the

exemption, since the rule did not permit a separate vote on section 402(b). The Speaker of the

House, who virtually never addresses that body,45 was forced to take to the floor to stem a

revolt over section 402(b), and to promise to work for separate legislation to repeal that

offending section.46 In the House 93 members voted against the procedural rule that

precluded amendments to delete section 402(b).47

In the House no fewer than 33 Representatives went on record in characterizing section

402(b) as exempting the Wards Cove Packing Company from the legal standards which would

otherwise have applied to it under the Act. Like the Speaker of the House, the Majority

leader, Representative Gephardt, decried section 402(b) for having "exempted" the company

43 137 Cong. Rec. S 15963 (daily ed. Nov. 5, 1991).

44 137 Cong. Rec. S 15968 (daily ed. Nov. 5, 1991).

45 137 Cong. Rec. H 9515 (daily ed. Nov. 7, 1991) (Rep. Foley) ("[I]t is not often that I take the well. 
In the tradition of those who have held the office of Speaker, I reserve that to exceptional times and 
circumstances. I think this is such a time.")

44 Id. ("I would ... say to the Members on this side of the aisle who are concerned with the Wards Cove 
case in particular that I will ... exercise every effort on my part to see that this matter is corrected.")

47 137 Cong. Rec. H 9516 (daily ed. Nov. 7, 1991).

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from coverage by the legislation.48 Twenty-five members of the House co-signed a letter to

the Rules Committee asking for an opportunity to vote on an amendment which, by deleting

section 402(b), would extend the standards of the Act to the 2,000 Wards Cove employees:

[W]e are appalled at the provision of the Senate bill which exempts a single 
employer, Wards Cove Packing Co., from its protection. We owe it to [the 
company’s employees] to restore the meaning of the 1964 Civil Rights Act, as we 
seek to do in this bill for every other American worker.... We hope your 
committee will give the House an opportunity to prevent a travesty of justice, by 
amending the bill to apply its provisions to the one employer in this country 
which has won an exemption in the Senate.49

Seven of those who signed this letter, together with eight additional members of the

House, made individual statements on the floor denouncing the Wards Cove exemption. All

of them objected to section 402(b) because under it Wards Cove employees, unlike all other

litigants with pre-existing claims, could not rely on the Act. Representative Mink argued:

Every other plaintiff with a pending case can move forward with the new rules, 
with the new procedures this bill is going to establish, except for the plaintiffs in 
the Wards Cove case ... who stuck together for their rights and for their 
economic justice, just on the verge of being perfected [sic], now are being 
stricken from the bill and told that they are the only plaintiffs, the only 
Americans in the country, who cannot benefit from this bill.50

48 137 Cong. Rec. II 9515 (daily cd. Nov. 7, 1991).

49 137 Cong. Rec. H 9506 (daily cd. Nov. 7, 1991).

50 137 Cong. Rec. H 9509 (daily ed. Nov. 7, 1991); see also id. (Rep. Mink) ("Every other plaintiff that 
has a pending case can now proceed with their case, except for the Wards Cove plaintiffs.")

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Representative Mineta expressed similar outrage at the favored treatment accorded this single 

Title VII defendant.51 Representatives Matsui52 and McDermott53 and Miller54 voiced 

similar objections.

This whole controversy would have been unintelligible if Congress had understood that 

the entire Act was inapplicable to pre-existing claims. Had the Act been so limited, no one 

would have cared whether the Wards Cove exemption was included in section 402(b). In fact, 

however, members of both houses were repeatedly warned that the administration adamantly 

insisted on the inclusion of section 402(b), and that the entire compromise would collapse

51 137 Cong. Rec. II 9511 (daily cd. Nov. 7. 1991).

52 137 Cong. Rec. H 9509 (daily cd. Nov. 7, 1991).

53 137 Cong. Rec. H 9506 (daily cd. Nov. 7, 1991).

34 137 Cong. Rcc. II 9554 (daily cd. Nov. 7, 1991); see also id. at (Rep. Abercrombie) (plaintiffs in
Wards Cove required "to sacrifice themselves ... for others"), H 9511 (Rep. Schroeder) (section 402(b) will 
"single out" a group of employees who "are now going to be sacrificed"), H 9512 (Rep. Edwards) ("this special 
exemption for the Wards Cove Packing Co. ... is outrageous"), H 9516 (Rep. Moran) ("The Wards Cove 
Packing Co. is specifically exempted from this legislation because of a high cost lobbying effort and a political 
deal cut in the Senate"), H 9530 (Rep. Edwards) ("[section 402] ... was intended to craft a special rule of law 
protecting the defendant in Ward/sJ Cove...’ ), II 9541 (Rep. Pelosi) (condemning section 402(b) for 
"exempting Wards Cove Packing Co. from this legislation" and denying "the workers of Wards Cove ... the 
same rights as the rest of America"), II 9552 (Rep. Moody) (objecting to "the provision that exempts the 
Wards Cove Packing Co."), H 9555 (Rep. Falcomavacga) (condemning section 402(b) "which exempts the 
Wards Cove Co." and makes its employees "the only workers in this Nation cut out of protection").

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without section 402(b).55 Indeed, they were told expressly that the President would veto the 

bill if section 402(b) were omitted:

Last night, while Frank Atonio watched, the Rules Committee was forced to 
adopt a closed rule, because the White House said the bill will be vetoed if this 
Wards Cove exemption is removed. I know that the Committee had no choice, 
when faced directly with a veto threat.56

None of this could conceivably have occurred if either the Congress or the White House 

regarded section 402(b) as entirely redundant.

IV. SECTION 101 SHOULD BE PRESUMED APPLICABLE TO PRE-EXISTING CLAIMS

We urge that the language and legislative history of the Civil Rights Act demonstrate 

that Congress intended that section 101 apply to pre-existing claims. If however, the court finds 

that language and history ambiguous, the decision in Bradley v. Richmond School Board, 416 

U.S. 696 (1974), directs that new legislation be applied to pre-existing claims unless such 

application would result in "manifest injustice." No such injustice would be caused by

55 137 Cong. Rec. S 15953 (Sen. Dole) (section 402(b) is "a significant section of the bill"), S 15963 (Sen. 
Kennedy) ("[I]t would be a serious mistake for the Senate to go back on a compromise that was accepted in 
good faith"), S 15966 (Sen. Gorton) ("the compromise was extremely fragile; the loss of any piece might well 
have shattered it") (daily ed. Nov. 5, 1991); 137 Cong. Rec. II 9505 (Rep. Wheat) ("the Committee on Rules 
was given the most firm assurance yesterday that the other Chamber is absolutely committed to the bill as 
written and that any changes would jeopardize the compromise"), H 9512 (Rep. Edwards) ("We were very 
disturbed when we found ... this special exemption for the Wards Cove Packing Co.... It is outrageous .... 
However, ... [i]t is not going to do any good to destroy this bill. There are going to be thousands, maybe 
millions of employees in the future that we are cutting out of rights if we do. I assure you that this bill if it 
goes back to the Senate will probably never emerge again...."), II 9515 (Rep. Michel) ("I know, in talking with 
Members from the other body, what trauma they were going through ... to get that baby adopted over in the 
other body. Within the last half hour I have talked to several of those principals who were involved and said, 
’Please, please don’t let this thing fall apart or become unraveled over in your body’") (daily ed. Nov. 7, 1991).

56 1 37 Cong. Rec. H 9506 (Rep. McDermott); see also id. at H 9510 (Rep. Abercrombie) ("Do not 
invoke the name of the President as if you were going through the 12 stations of the cross and tell me that 
these people have to sacrifice themselves on the altar of civil rights for some but not others”), H 9511 (Rep. 
Schroeder) ("I am shocked that the White House is cutting that kind of deal on civil rights"), H 9511 (Rep. 
Mineta) ("I have heard the President would veto this bill unless this exemption for Wards Cove is included"), 
II 9555 ("The Rules Committee last night ruled against an amendment ... to strike the provision concerning 
Wards Cove.... [T]he White House has threatened to veto any amendment....") (daily ed. Nov. 7, 1991).

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application of section 101 to the instant case. A decision by this court under Bradley would 

appropriately be limited to the circumstances of this case, since whether "manifest injustice" is 

involved turns on the particular section at issue.

A. Bradley Remains Controlling Precedent In This Circuit

Bradley has been widely accepted and applied since it was handed down in 1974. In 

1990, however, Justice Scalia authored a concurring opinion in Kaiser Aluminum & Chemical 

Co. v. Bonjomo, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990), in which he urged that Bradley was 

bad law and should be overruled. Although no other member of the Court joined Justice 

Scalia’s opinion, he argued that Bradley was inconsistent with the Court’s post-1974 decisions 

in Bowen v. Georgetown University Hospital, 488 U.S. 204 (1985) and Bennett v. New Jersey, 470 

U.S. 632 (1985). Justice Scalia’s opinion in Bonjomo has occasioned a certain degree of 

uncertainty among the district and circuit courts.

In this circuit, however, any doubts regarding the continued vitality of Bradley has been 

definitively rejected. Since Bowen the Ninth Circuit has on six occasions applied a traditional 

Bradley analysis to hold a new statute applicable to a pre-existing claim.57 None of these 

decisions contain any reference to Bowen. The Ninth Circuit relied on Bradley in applying to 

a pending case a change in the applicable statute of limitations.58 Gonzalez v. Aloha Airlines,

37 Federal Deposit Ins. Corp. v. New Hampshire Insurance Co., 1991 U.S. App. LEXIS 30071 (9th Cir. 
1991); Gonzalez v. Aloha Airlines, 940 F.2d 1312 (9th Cir. 1991) Commonwealth o f Northern Mariana Islands 
v. Kamano, 917 F.2d 379, 381-82 (9th Cir. 1990); In re Pacific Far East Lines, 889 F.2d 242, 247 (9th Cir. 
1989); Bryant v. Ford Motor Co., 886 F.2d 1526, 1528 (9th Cir. 1989); Delta Computer Corp. v. Samsung 
Semiconductor & Telecommunications Co., 879 F.2d 662, 663-5 (9th Cir. 1989).

38 Gonzalez was authored by Judge Schroedcr. Two years earlier, in Nelson v. Ada, 878 F.2d 277, 280 
(9th Cir. 1989), Judge Schroedcr wrote, "As a general rule, legislative enactments ... apply only prospectively." 
In light of Judge Schroeder’s subsequent opinion in Gonzalez, it is clear that the quoted passage in Nelson 
referred only enactments, like that presented in Nelson, which altered the long established substantive rights 
of a party.

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940 F.2d 1312, 1316 (9th Cir. 1991). 945 F.2d at 295 n.9. In Federal Deposit Corp. v. New

Hampshire Insurance Co., 1991 U.S. App. LEXIS 30071 (9th Cir. 1991), the court noted the

"apparent tension" between Bowen and Bradley, and held:

Where, as here, there is no clear indication of congressional intent, and no "manifest 
injustice" will result, we conclude that retroactive application., to pending cases is 
appropriate. See Bradley, 416 U.S. at 711 (court applies the law in effect at the time it 
renders its decision unless "there is a statutory direction or legislative history to the 
contrary"); Campbell v. United States, 809 F.2d 563, 572 (9th Cir. 1987) ...

In this circuit, since the publication of Georgetown, we have recent applied Bradley to 
a statute charging the statute of limitations. Gonzalez v. Aloha Airlines...

In a well reasoned opinion ... the district court in FDIC v. Howse, 736 F. Supp. 1437 
(S.D. Tex. 1990) ... concluded that since a statute of limitations is procedural in nature, 
it is accorded retroactive effect because it does not affect substantive rights.... The 
analysis of the concept of limited retro action in FDIC v. Howse is persuasive and 
consistent with the law of this circuit as applied in Gonzalez.

1991 U.S. App. LEXIS 30071 at *25-*27. The lower court decision cited by this opinion,

Federal Deposit Ins. Corp. v. Howse, makes the traditional distinction between statutes creating

new substantive rights, and statutes altering the remedies for existing rights. 736 F. Supp. at

1446. (See part C, infra).

B. Bradley Requires That Section 101 Be Applied to Pre-Existing Claims

The controlling standard of statutory construction is set out in Bradley v. Richmond 

School Board, 416 U.S. 696 (1974). The question in Bradley concerned the applicability of a 

1972 statute authorizing awards of counsel fees in school desegregation cases. Segregation of 

the Richmond schools dated from the turn of the century; the plaintiffs in Bradley had sued in 

1961, and had obtained a series of injunctions between 1964 and 1972. The legal work for 

which counsel fees were sought had occurred prior to the effective date of the 1972 law. The 

court of appeals denied a fee award, asserting that statutes should not be construed to apply

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to conduct occurring before their effective date unless Congress had clearly mandated such 

application.59

The Supreme Court unanimously overturned that interpretation of the statute, holding

that the correct rule of construction was precisely the opposite:

We anchor our holding in this case on the principle that a court is to apply the 
law in effect at the time it renders its decision, unless doing so would result in 
manifest injustice or there is statutory direction or legislative history to the 
contrary.

416 U.S. at 711.

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

416 U.S. at 715. The Court observed that this rule of construction had long been applied by 

decisions reaching back into the nineteenth century,60 most recently in Thorpe v. Housing 

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

Bradley establishes a three part test for determining whether the application of section

101 to a pending case or other pre-existing claim would be "manifestly unjust":

(a) the nature and identity of the parties, (b) the nature of their rights, and (c) 
the nature of the impact of the change in the law upon those rights.

416 U.S. at 717.

1. The first of the Bradley standards poses no problem for the application of the 

Civil Rights Act to pre-existing claims. The central distinction made by Bradley in this regard 

is between "mere private cases between individuals", in which application of a new law to pre­

59 See 416 U.S. at 715 n. 20 (quoting Thompson v. School Board of Newport News, 472 F.2d 177, 178 
(4th Cir. 1972)) ("legislation is not to be given retrospective effect to prior events unless Congress has clearly 
indicated an intention to have the statute applied in that manner").

60 416 U.S. at 711 (citing United States v. The Schooner Peggy, 5 U.S. 103 (1 Cranch) (1801)).

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existing claims may be inappropriate, and litigation involving matters of "great national 

concern", where application of a new statute to pre-existing claims is presumed absent clear 

congressional intent to the contrary. 416 U.S. at 718, 719. The Court in Bradley identified two 

specific illustrations of matters of public, rather than purely private, concern -- school 

desegregation, the issue in Bradley itself, and the public accommodations provisions of Title II 

of the 1964 Civil Rights Act. In Title II litigation, the Court observed, the plaintiff functions 

"as a private attorney general, vindicating a policy that Congress considered of the highest 

priority." 416 U.S. at 718-19. The Court has characterized Title VII as of similarly vital public 

importance. In Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), the Court observed that 

there was "an equally strong public interest" in implementation of Title VII and Title II, 422 

U.S. at 415, emphasizing that enforcement of Title VII served the "[i]mportant national goals" 

of "eradicating discrimination throughout the economy and making persons whole for injuries 

suffered through past discrimination." 422 U.S. at 417, 421.61

The prohibitions of section 1981 substantial overlap those of Title VII; both laws serve 

a national purpose of similar importance.

2. With regard to the second Bradley factor, the nature of the rights at stake, the 

Court explained that manifest injustice would result if interests affected adversely by application 

of a new law were vested rights.

61 Mojica v. Gannett Company, Inc., 57 FTP Cas. 537, 539 (N.D.II1. 1991) (”[T]he 1991 Act, like the Civil 
Rights Act of 1964, is intended to promote equality in our nation and provide a remedy for discrimination. 
This is a public concern of great importance to our society"); Slender v. Lucky Stores, Inc., 1992 U.S. Dist. 
LEXIS 274 (N.D. Cal. 1992) (Memorandum and Order, p. 9) ("[T]his case ... involves matters of great public 
concern — remedying race and sex discrimination and promoting equality"); EEOC Policy Guidance, Dec. 12, 
1991, p. 7 n.16 ("Arguably, the pursuit of nondiscriminatory employment is a comparable public goal that 
militates against a finding of manifest injustice in retroactively applying the damages provisions in the new 
Civil Rights Act"); cf. E.E.O.C. v. Westinghouse Elec. Corp., 765 F.2d 389, 392 (3d Cir. 1985) (Fair Labor 
Standards Act meets this first element of Bradley).

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The Court has refused to apply an intervening change to a pending action where 
it has concluded that to do so would infringe upon or deprive a person of a right 
that had matured or become unconditional.

416 U.S. at 719. This factor is primarily concerned with protecting accrued causes of action of 

plaintiffs.

Section 101 manifestly does not deprive any party of any accrued claim, cause of action, 

or other vested right. At least as applied in this case, section 1981 and section 101 are 

essentially remedial. The discrimination alleged by Gibbs was at all times unlawful under Title 

VII as well as under California law.62 The practical significance of section 1981 is that it 

provides an additional remedy for the intentional discrimination also forbidden by Title VII. 

The remedy provided by section 1981 is in some respects more effective than the Title VII 

remedy. The statute of limitations under section 1981 is longer than that for the filing of a 

Title VII charge, and the monetary relief available under section 1981 is greater than he relief 

available under Title VII.

Application of section 101 to the instant case would thus accord plaintiff a more 

effective remedy than existed after Patterson. But such an augmentation of remedies affects 

no vested right, because "one cannot have a vested right in a state of the law which left the 

injured party without, or with only a defective remedy." Ferrero v. Associated Materials, Inc., 

923 F.2d 1441, 1446 (11th Cir. 1991 j.63

62 California Fair employment Practices and Housing Act, Government Code, §§ 12900 et seq.

63 See also Bristow v. Drake Street, Inc., 1992 U.S. Dist. I.FXIS 499 (N.D. 111. 1992) (Memorandum 
Opinion and Order, p. 3)("lnfringcmcnt upon 'matured' rights is not a concern here because ’[T[here is no 
vested right in remedies.”'); Slender v. Lucky Stores, Inc., 1992 U.S. Dist. LEXIS 274 (N.D. Cal. 
1992)(Memorandum and Order, p. 10) C'l'he court rejects defendant’s argument that by expanding 
defendant’s liability for intentional discrimination the Civil Rights Act has infringed upon its unconditional 
rights. Defendant has no unconditional right to limit plaintiffs to a particular type of remedy"); Freeborn v. 
Smith, 69 U.S. 160, 175 (1865) ("there is no such thing as a vested right to do wrong"); Downs v. Blount, 170 
F.15, 21 (9th Cir. 1909)("[T]hcre can be ’no vested right to do wrong.’"); C.Endlich, Commentary on the

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With regard to the third Bradley factor, the impact of the change in the law, the Court 

explained that it was concerned lest "new and unanticipated obligations ... be imposed." 416 

U.S. at 720. This factor is primarily concerned with protecting defendants from being held 

liable for conduct which they had no reason to believe was actionable when it originally 

occurred. Because the new statute at issue in Bradley dealt only with an aspect of the remedy, 

counsel fees, and did not purport to affect when school segregation was unlawful, application 

of that law to the case at hand worked "no change in the substantive obligation of the parties." 

416 U.S. at 721. The Court reasoned that there was no basis for concluding that the school 

board, in refusing to desegregate and thus provoking the litigation in question, had relied at 

the time on the absence of a counsel fee statute. 416 U.S. at 721.

The reasoning of Bradley is equally applicable here. Application of section 101 to this 

case would not render unlawful conduct lawful when it occurred. On the contrary, defendant 

certainly knew at the time of the alleged discrimination that racial discrimination in 

employment was unlawful. Because it has more than fifteen employees, the defendant has at 

all relevant times been covered by Title VII itself as well as by provisions of California law 

forbidding the discriminatory practices alleged. At the time when this action arose, moreover, 

discrimination of the type alleged was clearly unlawful under section 1981 under then 

unquestioned appellate court decisions.

Interpretation of Statutes, 386-7 (1888) ("the defaulter can have no vested right in a state of the law which left 
the injured party without, or with only a defective remedy ....")

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C. New Remedies and Procedures For Enforcing Existing Rights Are Presumptively 
Applicable to Pre-Existing Claims

The lower courts have uniformly utilized a presumption favoring application to pre-Act 

claims in the case of statutes that merely affect the procedures, remedies and other methods 

of enforcing already established rights. Since section 1981 merely provides an additional 

remedy for conduct already forbidden by Title VII, that presumption applies to section 101.

Decisions in at least nine circuits, including a series of the decisions in this circuit, 

recognize a presumption in favor of applying to pre-existing claims new remedies and 

procedures for enforcing established rights.64 The presumption in favor of application is

64 Third Circuit: Samuelson v. Susen, 576 F.2d 546., 551 (3rd Cir. 1978) (presumption in favor of 
applying "laws of a remedial or procedural nature").

Fourth Circuit: Trageser v. Libbie Rehabilitation Center, 590 F.2d 87, 88 (4th Cir. 1978).
Fifth Circuit: Lavespere v. Niagara Machine & Tool Works Inc., 910 F.2d 167, 181-82 (5th Cir.), reh’g  

denied, 920 F.2d 259 (5 th Cir. 1990).
Ree\>es v. International Tel. and Tel. Corp., 616 F.2d 1342, 1350 (5th Cir. 1980) (presumption in favor 

of applying to pre-existing claims new laws which "are procedural and affect only remedies"), cert, denied, 449 
U.S. 1077 (1981).

United States v. Blue Sea Line, 553 F.2d 445, 448 (5th Cir. 1977).
Sixth Circuit: Dale Baker Oldsmobile, Inc. v. Fiat Motors of N. America, 794 F.2d 213, 215 (6th Cir. 

1986) (presumption in favor of applying "a remedial or procedural act which does not destroy a vested right").
Eighth Circuit: In re Resolution Trust Corp., 888 F.2d 57, 58 (8th Cir. 1989).
Ninth Circuit: Delta Computer Corp. v. Samsung Semiconductor, 879 F.2d 662, 663 (9th Cir. 1989) 

("When a statute is addressed to remedies or procedures and does not otherwise alter substantive rights, it 
will be applied to pending cases") (quoting Fnel).

Kruso v. International Telephone and Telegraph Corp., 872 F.2d 1416, 1425 (9th Cir. 1989) 
(presumption in favor of applying to pending claims "a statute ... addressed to remedies or procedure").

Nichols v. Stapleton, 877 F.2d 1401, 1403 (9th Cir. 1989) (quoting Friel).
DeGurules v. I.N.S., 833 F.2d 861, 863 (9th Cir. 1987) (presumption in favor of application to pre­

existing claims of "a grant or expansion of an access to a remedy").
Friel v. Cessna Aircraft Co., 751 F.2d 1037, 1039 (9th Cir. 1985) (presumption in favor of applying law 

"addressed to remedies or procedures").
Eleventh Circuit: Ferrero v. Associated Materials Inc., 923 F.2d 1441, 1445 (11th Cir. 1991) (separate 

rule of construction favoring application to pending cases of "procedural statutes and statutes that affect only 
a litigant’s remedy");

United States v. Peppertree Apartments, 942 F.2d 1555, 1560-61 (11th Cir. 1991) ("Statutory changes 
that are remedial in nature apply retroactively.... The change in the statute ... does not impose a new 
obligation upon [the defendant]. Instead, it imposes and additional remedy on already proscribed conduct.... 
’[Tjhe statute imposed no new obligation; it merely reinforced an existing ont m), petition for cert, filed (Dec. 
26, 1991).

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consistent with the principle that remedial measures are to be liberally construed. Cooper

Stevedoring of Louisiana, Inc. v. Washington, 556 F.2d 268, 272 (5th Cir.), reh’g denied, 560 F.2d

1023 (1977). A remedial statute is one that "relates to the means and procedures for

enforcement of [existing] rights". United States v. Kairys, 782 F.2d 1374, 1381 (7th Cir.), cert.

denied, 476 U.S. 1153 (1984). The statutes to which this presumption applies are referred to

interchangeably as "remedial", "procedural", or both. See, e.g., Ferrero v. Associated Materials

Inc., 923 F.2d 1441, 1445 (11th Cir. 1991) (remedial and procedural laws referred to "as a

matter of convenience" as procedural).65 Application to pending claims of new enforcement

mechanisms rarely involves any risk of serious unfairness.

Retroactive modification of remedies normally harbors much less potential for 
mischief than retroactive changes in the principles of liability.... Modification of 
remedy merely adjusts the extent, or method of enforcement, of liability in 
instances in which the possibility of liability previously was known.

Hastings v. Earth Satellite Corp., 628 F.2d 85, 93 (D.C. Cir. 1980).

The most noteworthy instance in which the courts applied this distinction between

conduct-regulating and remedial laws concerned the 1972 amendments to Title VII. Prior to

1972 Title VII did not apply to federal employees. Section 717 of the 1972 legislation forbad

federal agencies to discriminate on the basis of race, etc., and authorized victims of such

United States v. Femandez-Toledo, 745 F.2d 703, 705 (11th Cir. 1985) (presumption in favor of 
applying laws "that affect only procedure or remedy").

D.C. Circuit: Yakima Valley Cablevision, Inc. v. F.C.C., 794 F.2d 737, 748 (D.C. Cir. 1986) ("this 
circuit views statutes that change substantive rights as differing from those — as in Bradley -  that merely 
change substantive remedies") (emphasis in original).

Shirev v. Devine, 670 F.2d 1188, 1197 (D.C. Cir. 1982) (New statute to be applied to pre-existing 
claims "[ijnsofar as [the pre-existing rights").

Eikenberry v. Callahan, 653 F.2d 632, 635-36 n.14 (D.C. Cir. 1981).

65 See also Friel v. Cessna Aircraft Co., 751 F.2d 1037, 1039 (9th Cir. 1985) ("danger" of rendering 
unlawful conduct lawful when engaged in "is not present where statutes merely affect remedies or 
procedures").

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discrimination to bring suit in federal court for back pay, injunctive relief, and counsel fees. 

Section 717 of the 1972 amendments was widely interpreted to apply to acts of discrimination 

occurring prior to the effective date of the statute. See, e.g. Revis v. Laird, 627 F.2d 982, 983 

(9th Cir. 1980); Mahroom v. Hook, 563 F.2d 1369, 1373 (9th Cir. 1977). The courts reasoned 

that although Title VII itself did not forbid federal employment discrimination prior to March 

24, 1972, such discrimination had in fact been illegal long before 1972 under the Constitution, 

an earlier statute and several executive orders. Thus section 717 did not declare illegal 

previously lawful conduct; rather, it provided new remedies and enforcement machinery to 

redress conduct that had been unlawful long prior to 1972. Thus, even though, prior to 1972 

"it was doubtful that backpay" could be awarded by the courts to victims of federal employment 

discrimination, Brown v. General Services Administration, 425 U.S. 820, 826 (1976), the Title VII 

amendments expressly authorized that remedy were applied to pre-Act claims.

The circuit courts regarded the application of section 717 to federal agencies as purely 

remedial because agency discrimination was already forbidden by other laws. The Fourth 

Circuit explained:

[T]he 1972 Act did not create a new substantive right for federal employees.
The constitution, statutes and executive orders previously granted them the right 
to work without racial discrimination. Section 717(c) simply created a new 
remedy for the enforcement of this existing right.... The Act provided Koger 
with a supplemental remedy .... [A] federal employee’s right to be free from 
racial discrimination existed before the passage of the 1972 Act. If it includes - 
- as it should -- a new remedy to enforce an existing right, then under the 
general rule favoring retrospective application of procedural statutes, §717(c) 
should be applied to pending cases ....

Koger v. Ball, 497 F.2d 702, 705-07 (4th Cir. 1974). The District of Columbia Circuit endorsed 

the reasoning in Koger:

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Section 717(c) is merely a procedural statute that affects the remedies available 
to federal employees suffering from employment discrimination. Their right to 
be free of such discrimination has been assured for years.

Womack v. Lynn, 504 F.2d 267, 269 (D.C. Cir. 1974) (Emphasis in original).66 The Third

Circuit concurred:

Congress did not need to create new substantive rights for federal employees 
when it enacted §717. Rather, ... this provision was designed only to make 
judicial enforcement of longstanding federal substantive policies against 
employment discrimination more certain and more effective than in the past.
Section 717 ... is a classic example of a procedural or remedial statute applicable 
to cases pending at the time of enactment.

Sperling v. United States, 515 F.2d 465, 473-74 (3d Cir.), cert, denied, 426 U.S. 919 (1975). The

Seventh Circuit applied the same reasoning:

Freedom from racial discrimination by the federal government has long been 
guaranteed by the Fifth Amendment.... Executive Orders ... provided adminis­
trative remedies .... This procedure, however, proved ineffective in dealing with 
problems of job discrim- ination.... The right of federal employees to seek relief 
from racial discrimination by the federal government was thus available some 
years before ... 1972. Section 717(c) simply provided one more step in the 
existing review process.

Adams v. Brinegar, 521 F.2d 129, 131-32 (7th Cir. 1975).67 Several of these decisions observed 

that insofar as it added to the available method of enforcement a right to file suit in federal

66 See Thompson v. Sawyer, 678 F.2d 257, 287-88 (D.C. Cir. 1982):

"Federal employees thus obtained a new means to enforce their preexisting right to be free 
from discrimination .... The 1972 Amendments to Title VII only added a forum and 
procedures for federal employees -  it was not the date of birth of the right to a federal job 
free of racial or sexual bias .... Congress provided federal employees with a new arsenal of 
remedies -- not rights, but remedies."

67 See Eastland v. Tennessee Valle\' Authority, 553 F.2d 364, 367 n.5 (5th Cir. 1977); Huntley v. 
Department of Health, Education and Welfare, 550 F.2d 290, 295 (5th Cir.), cert, denied, 434 U.S. 985 (1977); 
Allen v. United States, 542 F.2d 176, 177 n.2 (3rd Cir. 1976); Weahkee v. Powell, 532 F.2d 727, 729 (10th Cir. 
1976); Ettinger v. Johnson, 518 F.2d 648, 651 n.71 (3rd Cir. 1975) (quoting Sperling); Brown v. General Services 
Administration, 507 F.2d 1300, 1305-06 (2d Cir. 1974), affd  425 U.S. 820 (1976) (endorsing reasoning of 
Womack and Koger); but see Place v. Weinberger, 497 F.2d 412 (6th Cir. 1974), vacated 426 U.S. 932 (1976).

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court, section 717 was merely providing a new tribunal for redressing existing rights.68 The

Supreme Court approved this interpretation of the 1972 Title VII amendment in Brown v.

General Services Administration, 425 U.S. 820, 824 n.4 (1976).

The same presumption in favor of applying new remedies to pre-existing claims was

applied in a variety of other contexts. In 1974 the ADEA was amended to cover federal

employees, who had previously been outside the protection of the Act. For many years before

1974, however, age discrimination in federal employment had been forbidden by Executive

Orders and Civil Service Commission regulations. Accordingly, the courts applied the 1974

ADEA amendment to pre-Act claims. The Ninth Circuit, noting these "longstanding"

prohibitions against age discrimination, explained:

The age discrimination policy, like the anti-discrimination policy of Title VII, was 
seriously hampered by the lack of any effective enforcement machinery prior to 
the amendments in issue. The ADEA amendments, like the 1972 Title VII 
amendments, did not create new substantive rights, but simply created new 
procedures and remedies for the vindication of pre-existing discrimination claims.

Bunch v. United States, 548 F.2d 336. 339 (9th Cir. 1977) (citations omitted). Similarly, the Fair

Labor Standards Act, which prohibits certain forms of sex based salary discrimination, was

amended in 1974 so that for the first time it applied to federal agencies. The D.C. Circuit held

the 1974 amendment applicable to all pending claims against the General Printing Office,

noting that a specific Executive Order forbidding discrimination at the GPO had been issued

in 1969. Thompson v. Sawyer. 678 F.2d 257 (D.C. Cir. 1982). The court of appeals emphasized

that GPO could not complain about this new remedy, or invoke any presumption against

68 Koger v. Ball, 497 F.2d at 706 (citing Justice Holmes opinion in Hallowed v. Commons, 239 U.S. 506, 
508 (1916)); Adams v. Brinegar, 521 F.2d 129, 132 (7th Cir. 1975) (citing Hallowed).

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application of the Fair Labor Standards Act, since GPO’s underlying conduct was prohibited 

at the time it occurred:

GPO contends that the FLSA forecloses a retroactive reward of liquidated 
damages here, because GPO had the best of all reasons for believing that its 
actions were not illegal under the FLSA — namely, that GPO was not covered 
by the FLSA.... The defendant, GPO, is hardly the innocent actor being 
subjected to surprising and unexpected obligations. At least from 1969 on ... it 
had been told not to discriminate as it was found to have done.... GPO ... never 
had a right to discriminate, even though sovereign immunity for a long time
insulated GPO from liability for its transgressions.69

*  *  *

[T]he statute merely extends the remedies available for the enforcement of 
existing rights.70

Similarly, the FLSA was amended in 1977 to provide a cause of actions for employees of

private or public employers who were retaliated against for seeking to enforce the statute. Such

retaliation by employers had long been illegal, but the prohibition was not until 1977

enforceable by a private action. This amendment too was applied to existing claims:

An employee’s right to be free from discharge or other employment 
discrimination for attempting to have enforced the provisions of the FLSA has 
been protected for years. The amendment ... did not create new substantive 
rights, but simply affected the remedies available to employees for vindication 
their pre-existing rights.

Bush v. State Industries, Inc., 599 F.2d 780. 786 (6th Cir. 1979).

In the instant case section 101 merely provides additional remedies for rights that were 

well established when the discriminatory conduct occurred. At all relevant times employment 

discrimination by defendant General Motors was forbidden by Title VII, by Executive Order 

11246, and by California law.

D. Restorative Legislation Is Presumptively Applicable to Pre-Existing Claims

69 678 F.2d at 278-80.

70 678 F.2d at 279 n.21.

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A number of circuit courts have held that where Congress adopts legislation to restore 

legal principles that prevailed until a Supreme Court decision to the contrary, that legislation 

should be presumed applicable to pending cases. Although this issue does not appear to have 

been considered in this circuit, we believe these precedents are sound and should be followed 

here.

Three circuits have applied this rule of construction. In Ayers v. Allain the Fifth Circuit 

observed:

Retroactive application of a statute is appropriate when Congress enacts the 
statute to clarify the Supreme Court’s interpretation of previous legislation 
thereby returning the law to its previous posture. . . . "[W]here Congress clearly 
indicates its intention to reject a recent Supreme Court interpretation and 
restore the law to its former state, retroactive application of a newly enacted 
statute is appropriate."

893 F.2d 732, 754-55 and n. 116 (5th Cir. 1990), vacated on other grounds, 914 F.2d 676 (5th Cir.

1990) (en banc), cert, granted on other grounds, 113 L.Ed.2d 694 (1991).71 In Lussier v. Dugger,

904 F.2d 661 (11th Cir. 1990), the court of appeals applied the Civil Rights Restoration Act to

a pending case because the statute "does not change prior legislation, but merely corrects prior

judicial interpretations which the Congress believed ’unduly narrowed the civil rights

laws" 904 F.2d at 688.72 In Mrs. W. v. Tirozzi, 832 F.2d 748 (2d Cir. 1987), the Second Circuit,

in applying a new statute to pending cases, emphasized:

Congress stated that [the law] was designed to reestablish statutory rights 
repealed by the U. S. Supreme Court. . . . The . . . amendment in the present 
case simply codifies a congressional purpose long in place which Congress 
believed the Supreme Court had misinterpreted.

71 See also White v. Estelle, 556 F.2d 1366, 1367-68 (5th Cir. 1977).

72 904 F.2d at 665 (law adopted "with the expressed purpose of restoring ’the prior consistent and long­
standing executive branch interpretation. . . ’ of four civil rights laws"); see United States v. Dallas County, 739 
F.2d 1529 (11th Cir. 1984).

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832 F.2d at 754-55. In Leake v. Long Island Jewish Medical Center, 869 F.2d 130 (2d Cir. 1989), 

the court affirmed the application, on similar grounds, of the Civil Rights Restoration Act to 

pre-existing claims.73 Similarly, state statutes intended to restore prior law have been 

construed as applicable to pre-existing claims. In re Grey, 29 B.R. 286, 289 (D. Kan. 1983); 

Laubie v. Sonesta International Hotel Corp., 752 F.2d 165, 167-68 (5th Cir. 1985).

This interpretation of restorative legislation is a sensible assessment of congressional 

intent. The purpose of such restorative legislation is to return the law to where it was prior to 

the disapproved judicial interpretation. As one Senator quoted in Leake put it, what "we have 

done is change the law back to what we thought it was." 695 F.2d at 1414. If such legislation 

were applied only prospectively, the law — for numerous litigants and for perhaps years into the 

future — would not be "restored" at all. Where Congress considered the disapproved decision 

a mistaken departure from prior precedents, it is unlikely that Congress would have intended 

to keep that error in effect. A statute adopted for the express purpose of restoring prior law 

cannot plausibly be understood to codify -  for all pre-existing claims -- the very decision which 

Congress disapproved.

Section 101 itself is the paradigm of restorative legislation. It was adopted for the 

express purpose of overturning the Supreme Court decision in Patterson, in order to restore the 

interpretation of section 1981 that had prevailed until that 1989 decision.

73 Leake v. Long Island Jewish Medical Center, 695 F. Supp. 1414, 1417 (E.D.N.Y. 1988):

[T]he use of the terms "restore" and "clarify" indicate that Congress did not intend to change 
the statute; rather it intended to reject the Supreme Court interpretation . . . .  The stated 
purpose of the statute is not to amend but to "restore" and "clarify."

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V. PATTERSON V. MCLEAN CREDIT UNION SHOULD NO LONGER BE
APPLIED RETROACTIVELY

In the months following Patterson and the other now overturned Supreme Court 

decisions, it was often assumed and occasionally held by the courts that those decisions would 

be applied retroactively to pre-decision claims. In Gibbs v. General Motors, 904 F.2d 531 (9th 

Cir. 1990), this court applied Patterson retroactively to the instant case. The enactment of the 

Civil Rights Act, however, wholly apart from whether and when the Act itself applies to pre­

existing claims, has altered dramatically the context and considerations bearing on the 

retroactivity of Patterson. The adoption of the Act is a supervening change in the law that 

provides a basis for concluding that retroactive application of the now repudiated decision in 

Patterson is no longer appropriate.

A holding that Patterson and the other Supreme Court cases should not be applied 

retroactively would have a different impact than a determination that the Act itself should apply 

to pre-existing claims. First, unlike a determination in favor of such an application of the Act, 

a ruling against decisional retroactivity would not affect claims, such as a claim for damages 

under section 102, which did not exist before and were not affected by the eight overturned 

Supreme Court decisions. Second, a decision against retroactive application of a decision would 

affect only cases arising before the decision at issue, and would not extend to claims arising 

between the date of the decision and November 21, 1991.

The Supreme Court decision in Patterson did not decide, and could not have even 

considered, whether retroactive application would still be appropriate if the Court’s own 

decision was later overturned by Congress. This court’s 1990 decision in the instant case also 

did not consider that issue. That question thus remains an open, unresolved issue in the 

Supreme Court and in this court as well. Even in Patterson itself, the Supreme Court’s mandate

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would not 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 of Cal. v. United States, 429 U.S. 17, 18 (1976).

Four members of the Supreme Court -  White, O’Connor, Rehnquist and Kennedy -- 

adhere to the standard announced in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), for 

determining whether a decision should be applied retroactively. See James Beam Distilling Co. 

v. Georgia, 115 L.Ed.2d at 494, 495 (White, J., concurring), 497, 499-500 (O’Connor, J., 

dissenting). Their views are of particular importance, since these justices provided the critical 

deciding votes in the overturned decisions; for example, these justices accounted for four of the 

five members in the Patterson majority.

Under Chevron the first factor required to justify non-retroactivity is that the decision 

in question "must establish a new principle of law ... by overruling clear past precedent on 

which litigants may have relied...." 404 U.S. at 106. Neither Patterson nor the other overruled 

decisions purported to consider whether they might have had this effect. But Congress, in 

voting to overturn these decisions, based that legislation on its finding that the decisions had 

overruled previously well established precedents, precedents on which plaintiffs had frequently 

relied. Under Chevron a court is also to consider "the purpose and effect" of the new

decision, and whether failure to apply that decision retroactively will "retard its operation". 404 

U.S. at 107. Thus in Patterson, where the majority opinion was based on a view that a broad 

interpretation of section 1981 would interfere with the administration of Title VII, 491 U.S. at 

180-81, the majority in 1989 might have thought such interference could occur if the rule in 

Patterson were not extended retroactively. But today the policy analysis underlying the Patterson

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majority opinion has been disavowed by Congress. It would be indefensible for the courts to 

apply Patterson retroactively in order to achieve a "purpose and effect" that Congress has now 

expressly repudiated.

Justice Stevens, Blackmun and Souter take the view that full retroactivity of a decision

is ordinarily appropriate because non-retroactivity would mean that the courts in some instances

would continue to enforce legal principles rejected as bad law in that decision. Thus in

American Trucking Assns. v. Smith, 110 L.Ed.2d 148 (1990). Justice Stevens wrote:

[OJnce the decision to abandon precedent is made, I see no justification for 
applying principles determined to be wrong, be they constitutional or otherwise, 
to litigants who are in or may still come to court.

110 L.Ed.2d at 183. In James Beam Distilling, Justice Stevens explained that retroactivity "is in

keeping with the traditional function of the courts to decide cases before them based upon their

best current understanding of the law." 115 L.Ed.2d at 488. But where the "principles" and

"understanding" in the decision at issue have been disavowed and overturned by Congress, these

same arguments cut decisively against retroactive application of the repudiated decision. In

such a situation retroactive application of the congressionally overturned decision would itself

mean "applying principles determined to be wrong", and disregarding the "best current

understanding of the law."

In order to dismiss the pre-Patterson section 1981 claims in this case, this court would 

today have to hold both that the repudiated Patterson decision is retroactive and that the 

legislation overturning Patterson is not. Such a combination of conclusions seems indefensible 

as to a matter of statutory law, for Congress is responsible for determining the content of the 

law, and the courts play the more limited role of carrying out the will of Congress. The need 

to decide particular controversies requires the courts to interpret statutes. But such

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interpretations, however scholarly and well intentioned, cannot without considerable 

exaggeration be described as having definitively "found" the actual intent of Congress, when the 

original statute was less than clear and the courts, or the members of the Supreme Court, were 

divided, most particularly where a new interpretation was inconsistent with prior judicial 

construction. Due respect for the institutional roles of the courts and Congress requires, at 

least ordinarily, that the courts not adamantly insist on applying retroactively a decision that 

has been overturned by legislation restoring the law which prevailed prior to that decision.

CONCLUSION

For the above reasons, the decision of the district court should be reversed, and the case 

remanded for a jury trial of all discrimination claims that arose on or after July 15, 1982.

Respectfully submitted,

LAW OFFICES OF LEROY S. WALKER
PETER F. LAURA
MICKEY J. WHEATLEY
6300 Wilshire Boulevard
Suite 1410
Los Angeles, CA 90048 
(213) 966-4555

JULIUS L. CHAMBERS 
ERIC SCHNAPPER 
NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson St., 16th Floor 
New York. NY 10013 
(212) 219-1900

Attorneys for Plaintiff-Appellant

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