Rivers v Roadway Express Petition for A Writ of Certiorari

    No. 92-938

In The

uprente Court of tfje Hm teb
October Term 1992

Maurice Rivers 
AND

Robert C. Davison,
Petitioners,

v.

Roadway Express, Inc.
Respondent.

Petition For A Writ Of Certiorari 
To The United States Court Of Appeals 

For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Ellis Boal 
925 Ford Building 
Detroit. MI 48226 
(313) 962-2770

Cornelia T.L. Pillard 
NAACP Legal Defense & 

Educational Fund. Inc. 
1275 K Street, N.W.
Suite 301
Washington. D.C. 20005 
(202) 682-1300

Julius L. Chambers 
^Charles Stephen Ralston 
Eric Sci-inapper 
NAACP Legal Defense & 
Educational Fund. Inc.

99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 219-1900

* Counsel of Record



1

Questions Presented

1. Does the Civil Rights Act of 1991 apply to cases 
that were pending when the Act was passed?

2. Should this Court’s construction of 42 U.S.C.
§ 1981 in Patterson v. McLean Credit Union be applied 
retroactively after it has been legislatively rejected by section 
101 of the Civil Rights Act of 1991?



11

List of Parties

The parties are the petitioners Maurice Rivers and 
Robert C. Davison and the respondent Roadway Express, Inc. 
James T. Harvis, Jr. was an appellant below in a separate 
appeal, his claims having been severed by the district court 
from those of Rivers and Davison and tried separately. Local 
20, International Brotherhood of Teamsters, Chauffeurs, 
Warehousemen, and Helpers of America was a defendant in 
the district court, but the district court by order dated 
November 30, 1988 dismissed all claims against the defendant 
union, and that dismissal was not appealed. Neither Harvis 
nor Local 20 is a party to this petition.



Ill

TABLE OF CONTENTS

PAGE

Questions P resen ted .............................................................  i

List of Parties ......................................................................  ii

Table of A uthorities.............................................................  v

Opinions B e lo w ....................................................................  1

Jurisdiction ...........................................................................  2

Statute Involved.................................................................... 2

Statement of the Case ........................................................  3

Reasons for Granting the W r i t ..........................................  5

I. There Is a Conflict Among the Circuits 
Regarding Whether the Language of the 
Civil Rights Act of 1991 Requires Its 
Application to Cases Pending at the 
T ime of its Pa s s a g e ............................................. 8

A. There is a Circuit Conflict Over 
the Basic Rules for Construing
Statutory Language.....................................  9

B. There is a Circuit Conflict Over
the Role of Legislative Language 
and History in Statutory Inter­
pretation ...................................................  13



IV

II. There Is a Conflict Among the Circuits 
Regarding Whether New Legislation, Such 
as § 101 of the 1991 Civil R ights Act,
Should Be Presumed Applicable To Pre- 
Act Claims ................... ............. .. 15

A. There are Conflicting Presumptions 
Under Bradley v. Richmond School 
Board and Bowen v. Georgetown
University Hospital.......................   15

B. There is a Conflict Over Whether 
Retroactivity is Determined by 
Reviewing the Act as a Whole or 
by Reviewing the Section at
Issue ....................................................  20

III. Under the Court’s Prior Decisions, the 
Construction of 42 U.S.C. § 1981 in 
Pa t t e r s o n  v. M c L e a n  C r e d i t  Un i o n  Should 
Not Be Applied Retroactively After 
Congress Expressly Rejected It . . . . . . .  . 21

Conclusion................................... 26

Appendix la-24a



V

TABLE OF AUTHORITIES

CASES PAGES

Bailes v. United States,
cert, denied, 118 L. Ed. 2d 419 (1992)
(No. 91-1075) .................................................................... 17

Baker v. Gulf & Western,
(11th Cir., cert, petition filed Sept. 24, 1992)
(No. 92-552)......................................................................  7

Baynes v. AT&T Technologies, Inc.,
976 F.2d 1370 (11th Cir. 1992) ..............  6, 8, 12, 16, 17

Beisler v. Commissioner o f Internal Revenue,
814 F.2d 1304 (9th Cir. 1987) ........................................  11

Bowen v. Georgetown University Hospital,
488 U.S. 204 (1988) .................................................  15-21

Bradley v. Richmond School Board,
416 U.S. 696 (1974) ............................................... 15 - 21

Chevron Oil Co. v. Huson,
404 U.S. 97 (1971) .................................................  21 - 25

Colautti v. Franklin,
439 U.S. 379 (1979) ........................................................  10

Connecticut National Bank v. Germain,
112 S. Ct. 1146 (1992)...................................................... 13

Davis v. City and County o f San Francisco, 
No. 91-15113, 1992 WL 251513 
(9th Cir. Oct. 6, 1992) 8, 9, 10, 11, 13, 16



VI

EEOC v. Arabian American Oil Co.,
I l l  S. Ct. 1227 (1991)................................... .. 6

Fray v. Omaha World Herald Co.,
960 F.2d 1370 (8th Cir. 1992) ................  7, 8, 14, 16, 17

Gersman v. Group Health Assn. Inc.,
975 F.2d 886 (D.C. Cir., 1992)___ 6, 7, 8, 13, 14, 16, 17

Harvis v. Roadway Express,
973 F.2d 490 (6th Cir. 1992) ....................... . . . . . . . .  1

James B. Beam Distilling Co. v. Georgia,
111 S. Ct. 2439 (1991)............................................  21 - 25

Johnson v. Uncle Ben’s, Inc.,
965 F.2d 1363 (5th Cir., 1992)
(cert, petition filed Sept. 29)
(No. 92-737)......... '. ........................6, 7, 8, 14, 16, 19, 20

Kaiser Aluminum & Chemical Corp. v. Bonjomo,
494 U.S. 827 (1990) ................................... .. 12, 13, 16, 19

Kungys v. United States,
485 U.S. 759 (1988) ................................... 10

Landgraf v. USI Film Products,
968 F.2d at 432 (5th Cir. 1992), 
cert, petition filed Oct. 28, 1992)
(No. 92-757)............................................  6, 16, 17, 19, 20

CASES PAGES

Library o f Congress v. Shaw, 
478 U.S. 310 (1986) . . . 6



Lorance v. AT&T Technologies, Inc.,
490 U.S. 900 (1989) ........................................................  6

Luddington v. Indiana Bell Telegraph Co.,
966 F.2d 225 (7th Cir. 1992) .........  5,1,%, 11, 12, 15, 16

Lytle v. Household Manufacturing, Inc.,
494 U.S. 545 (1990) ............................................ ...........  4

Martin v. Wilks,
490 U.S. 755 (1989) ...........................    6

Mountain States Telegraph & Telegraph Co. 
v. Pueblo o f Santa Ana,
472 U.S. 237 (1985) ........................................................  10

Mozee v. American Commercial Marine Svc. Co.,
963 F.2d 929 (7th Cir. 1992),
cert, denied 113 S. Ct. 86 (1992).........  7, 8, 14, 15, 16, 17

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

Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) ...................................................... 6

Russello v. United States,
464 U.S. 16 (1983) .......................................................... 11

South Carolina v. Catawba Indian Tribe, Inc.,
476 U.S. 498 (1986) ...................................................  11

vii

CASES PAGES

Thorpe v. Housing Authority o f Durham, 
393 U.S. 268 (1969) .......................... 19



via

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

United States v. Menasche,
348 U.S. 528 (1955) .......................... .................. ...........n

United States v. Nordic Village, Inc.,
112 S. Ct. 1011 (1992) ......................................................  11

United States v. Wong Kim Bo,
472 F.2d 720 (5th Cir. 1972) _____ . . . . . . ____ . . . .  11

Vogel v. City o f Cincinnati,
959 F.2d 594 (6th Cir. 1992) 
cert, denied, 113 S. Ct. 86
(1992)...................................................  8, 11, 12, 15, 16, 17

Wards Cove Packing Co. v. Atonio,
490 U.S. 642 (1989) .............................. .. 6, 10

West Virginia University Hospitals v. Casey,
111 S. Ct. 1138 (1991)....................... ......................... 6

STATUTES

28 U.S.C. § 1254(1) ..................................... ....................... 2

42 U.S.C. § 1981 ...........................................................passim

Civil Rights Act of 1991, 105 Stat. 1071, P.L. 102-166passim

Education Amendments of 1972,
Pub. L. No. 92-318, 1972 U.S.C.C.A.N. (86 Stat.) . . . .  20

CASES PAGES



IX

PAGES

MISCELLANEOUS

Brief for Respondent, Ayala-Chavez v. I.N.S.,
No. 91-70262 (9th C ir .) ............................................... . . 18

Brief of Plaintiff-Appellant Federal Deposit Insurance 
Corporation, Federal Deposit Insurance Corp. v. Wright, 
No. 90-2217 (7th C ir .) ......................................................18

Defendant’s Memorandum in Opposition to Plaintiffs Motion 
to File Second Amended Complaint, Van Meter v. Barr, 
Civil Action No. 91-0027 (G A G )......................................19

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

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

United States as Amicus Curiae, Davis v. Tri-State Mack 
Distribution, Nos. 91-3574, 92-1123 (8th C ir .) .................19

United States Reply to Defendants’ Oral Motion to Dismiss, 
United States v. Cannon, Civil Action No. 6:91-951-3K 
(D.S.C.) ................................................................................18



No. 92-

In The

Supreme Court of tfje Untteb States;
October Term 1992

Maurice Rivers 
and

Robert C. Davison,
Petitioners,

v.

Roadway Express, Inc.
Respondent.

Petition For A Writ Of Certiorari 
To The United States Court of Appeals 

For The Sixth Circuit

Petitioners Maurice Rivers and Robert C. Davison 
respectfully pray that the Supreme Court grant a writ of 
certiorari to review the judgment of the United States Court 
of Appeals for the Sixth Circuit entered on August 24, 1992. 
The Court of Appeals denied a timely petition for rehearing 
on October 13, 1992.

Opinions Below

The opinion of the Sixth Circuit is reported as Harvis 
v. Roadway Express, Inc., 973 F.2d 490 (6th Cir. 1992), and is 
set out at la-16a of the Appendix hereto ("App."). The order 
of the Court of Appeals denying respondent’s petition for 
rehearing and for rehearing en banc is unreported and is



2

set out at App. 17a-18a. The opinion of the United States 
District Court for the Northern District of Ohio, Western 
Division, is unreported, and is set out at App. 19a-24a.

Jurisdiction

The decision of the Sixth Circuit was entered August 
24, 1992. Respondent’s timely petition for rehearing en banc 
was denied on October 13, 1992. This Court has jurisdiction 
to hear this case pursuant to 28 U.S.C. § 1254(1).

Statute Involved

This case involves sections 101, 109(c), 402(a) and 
402(b) of the Civil Rights Act of 1991, 105 Stat. 1071, P.L. 
102-166, which provide in pertinent part:

Sec. 101. Prohibition Against All Racial 
D iscrimination in the Making and Enforcement of 
Contracts.

Section 1977 of the Revised Statutes (42 U.S.C. 1981) 
is amended —

(1) by inserting "(a)" before "All persons within";
and

(2) by adding at the end the following new 
subsections:

"(b) For 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.



3

"(c) The rights protected by this section are 
protected against impairment by nongovernmental
discrimination and impairment under color of State law."

Sec. 109. Pr o t e c t io n  of E x t r a t e r r it o r ia l
Employment.

(c) Applicatio n  of Am endm ents.—The
amendments made by this section shall not apply with respect 
to conduct occurring before the date of the enactment of this 
Act.

Sec. 402. Effective Date.

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

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

Statement Of The Case

Petitioners Maurice Rivers and Robert C. Davison, 
experienced Black garage mechanics, seek certiorari on the 
issue whether section 101 of the Civil Rights Act of 1991 
applies to their claims of race discrimination in employment 
against their former employer, Roadway Express, Inc. 
("Roadway," "the Company"). Rivers and Davison worked 
successfully for Roadway from 1972 and 1973, respectively, 
until they were discharged in 1986. On August 22, 1986, 
without the contractually required prior written notice 
routinely provided to white employees, Roadway managers



4

told Rivers and Davison to attend disciplinary hearings on 
their accumulated work records. Both petitioners refused to 
attend because of the inadequate notice. Both were 
disciplined in their absence. They filed successful grievances 
complaining of the peremptoiy, racially discriminatory 
disciplinary proceedings. In retaliation for their success in 
the grievance proceedings, however, Roadway again convened 
disciplinary hearings, again without the requisite notice, and 
discharged the petitioners on September 26, 1986 after they 
refused to attend. App. 2a-3a.

The district court initially denied Roadway summary 
judgment on the race discrimination claims, but then 
dismissed petitioners’ § 1981 discharge and retaliation claims 
based on this Court’s subsequent decision in Patterson v. 
McLean Credit Union. 491 U.S. 164 (1989). App. 23a-24a. 
The Court of Appeals for the Sixth Circuit reversed, and 
reinstated the claims of racially discriminatory retaliation. 
The Court of Appeals held that Patterson applies 
retroactively, but that the retaliation claims survive Patterson 
because § 1981 protects the right to "enforce contracts," and 
petitioners’ "ability to enforce claimed contract rights was 
impaired because of their race." App. 8a. The Sixth Circuit 
thus remanded the retaliation claims for a jury trial, and 
directed a redetermination of the Title VII claims in light of 
the jury’s verdict as required by Lytle v. Household Mfg., Inc., 
494 U.S. 545 (1990). App. 9a-10a.

The Court of Appeals affirmed the dismissal of the 
claims of race discrimination in firing, however, on the 
ground that the Civil Rights Act of 1991 should not be 
applied to this case. App. lla-14a. On remand under 
Patterson, as applied in this case by the Sixth Circuit, plaintiffs 
must prove race-based retaliation relating to their exercise of 
a contract right. App. 14a. If § 101 of the 1991 Act applied 
or if the decision in Patterson were held no longer to apply



5

retroactively, however, proof of race discrimination in any 
aspect of the employment relation would entitle the 
petitioners to relief.

Reasons For Granting The Writ

The question whether any provision of the 1991 Civil 
Rights Act applies to pre-Act claims has created a number of 
distinct conflicts in the Circuits. The Circuits are in conflict 
over whether the plain language of the 1991 Civil Rights Act 
commands its application to pending cases, because they 
disagree on the applicable rules of statutory construction. 
The Circuits are also in conflict over whether, if the statutory 
language is not determinative, the decisions of this Court 
create a presumption that § 101 of the Act applies. This 
conflict is so well developed that the Courts of Appeals have 
repeatedly expressly referred to it, and even requested 
clarification from this Court. Even among those courts 
holding § 101 presumptively inapplicable, there is a split over 
whether the question is properly analyzed as one of 
applicability of the 1991 Act as a whole, or whether it should 
be approached section by section. Finally, there is an 
unresolved question under this Court’s own precedent 
whether, in light of the 1991 Act’s repudiation of Patterson, 
that decision should continue to be applied retroactively to 
pending claims.

This case presents issues of great national importance. 
Hundreds of judicial decisions have grappled with the 
question whether the 1991 Act applies to pre-Act claims, and 
hundreds more have sought to apply the correct presumption 
regarding the applicability of other new statutes to pending



6

cases.1 The conflicts in the law have led to inconsistent 
results among jurisdictions. Moreover, the United States 
government, in cases in the lower courts nationwide, is filing 
conflicting briefs, some supporting and other opposing a 
presumption that new legislation applies to pre-existing 
claims. If current experience is any guide, some civil rights 
cases filed prior to the 1991 Act will continue to be litigated 
for several years, and it is thus important for this Court to set 
forth clearly which legal standards will govern those cases.* 1 2 
The questions here presented must be resolved in order to 
ensure that the current inequities and waste of judicial 
resources not persist into the next decade.

1 Indeed, the Seventh Circuit in Lucldington v. Indiana Bell 
Telephone Co. commented that the applicability of the 1991 Civil Rights 
Act was of such great importance that, even though it had already been 
decided by another panel of the Seventh Circuit, the Lucldington panel 
would discuss it "as if it were an open question in this circuit, rather than, 
as we would ordinarily do, dispose of it with a citation to our recent 
decision." 966 F.2d 225, 226 (7th Cir. 1992).

1 Employment discrimination cases unfortunately often take years 
to resolve. In the eight cases in which Supreme Court decisions were 
overturned by the 1991 Act, for example, the employment discrimination 
claim at issue was nine years old on average by the time the litigation 
reached this Court. 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 OH Co., I l l  S.Ct. 1227 (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 (1991) 
disputed practice occurred in January 1986); Libraty o f  Congress v. Shaw, 
478 U.S. 310 (1986) (Title VII complaints filed in 1976 and 1977).



7

Other petitions for certiorari have already been filed 
with the Court addressing the applicability of various 
provisions of the Civil Rights Act of 1991 to pending claims. 
Baker v. Gulf & Western No. 92-552 (11th Cir., cert, petition 
filed September 24, 1992); Johnson v. Uncle Ben’s, No. 92-737 
(5th Cir., cert, petition filed September 29); Landgraf v. USI 
Film Products, No. 92-757 (5th Cir., cert, petition filed 
October 28, 1992); Kuhn v. Island Creek Coal Co., No. 92-787 
(6th Cir., cert, petition filed November 3, 1992). This case is 
the best vehicle for deciding the common issues for at least 
three reasons. First, the largest segment of pending cases in 
the lower courts raising the question whether the 1991 Act 
applies are cases seeking application of § 101.3 That is the 
provision at issue here, but it is not addressed in Landgraf or 
Kuhn. Second, the court below, unlike the courts in Uncle 
Ben’s and Landgraf, analyzed the applicability of the 1991 Act 
as a whole, rather than section by section. Given the 
importance of the procedural or substantive nature of the 
individual statutory provision at issue to the determination 
whether the change applies to pre-Act claims, the decision of 
the court below reviewing the Act as a whole specially 
warrants review. Third, petitioner in Landgraf seeks 
application of the procedures and remedies afforded by the 
1991 Act to claims that were fully adjudicated prior to the 
Act under then-current procedures and remedies. This case 
was reversed and a remand directed on other grounds, and 
therefore will be retried in any event, and application of the

3 See, e.g., Baynes r. AT&T Technologies, Inc., 976 F.2d 1370 (11th 
Cir., 1992); Gersnian i>. Group Health Ass’n., Inc., 975 F.2d 886 (D.C. Cir., 
1992); Johnson i\ Uncle Ben’s, Inc., 965 F.2d 1363 ( 5th Cir., 1992); 
Luddington v. Indiana Bell Tel. Co., 966 F.2d 225; Mozee v. American 
Commercial Marine Svc. Co., 963 F.2d 929 (7th Cir. 1992), cert, denied,
__U .S .___ , 113 S.Ct. 207 (1992); Fray v. Omaha World Herald Co., 960
F.2d 1370 (8th Cir. 1992).



8

1991 Act’s procedures and remedies is thus more appropriate 
here.

By separate motion, petitioners respectfully request 
that this petition be considered jointly with the petitions 
already filed in Johnson, Baker, Landgraf and Kuhn.

I. There is a Conflict Among the Circuits 
Regarding Whether the Language of the 
Civil Rights Act of 1991 Requires its 
Application to Cases Pending at the Time 
of its Passage

The Sixth Circuit in this case, as well as the Fifth, 
Seventh, Eighth, Eleventh and District of Columbia Circuits, 
have ruled that the language of the 1991 Civil Rights Act 
does not indicate whether it applies to pending cases. Harvis 
v. Roadway Express, App. 12a (following Vogel v. City o f 
Cincinnati, 959 F.2d 594, 597 (6th Cir. 1992) cert, denied, _
U.S. __, 113 S.Ct. 86 (1992)); Johnson v. Uncle Ben’s, Inc.,
965 F.2d at 1372-73 (5th Cir. 1992); Luddington v. Indiana 
Bell Telephone Co., 966 F.2d at 227 (7th Cir. 1992); Fray v. 
Omaha World Herald Co., 960 F.2d 1370, 1376 (8th Cir. 
1992); Baynes v. AT&T Technologies, Inc., 976 F.2d 1370, 1992 
WL 296716, at *1 (11th Cir., Oct. 20, 1992); Gersman v. 
Group Health Ass’n., Inc., 975 F.2d 866, 888-890 (D.C.Cir. 
1992). The Ninth Circuit disagreed, holding that "the 
language of the Act reveals Congress’ clear intention that the 
majority of the Act’s provisions be applied to cases pending 
at the time of its passage." Davis v. City and County o f San 
Francisco, No. 91-15113, 1992 WL 251513 (9th Cir. Oct. 6, 
1992). There is thus a conflict in the Circuits requiring 
resolution by this Court.

The conflict regarding whether the language of the 
1991 Civil Rights Act by its terms applies to pre-Act cases



9

turns on basic rules of statutory interpretation generally 
applicable to all types of legislation. The issue thus has 
implications far beyond civil rights litigation, and sweeps 
more broadly even than the question of statutory retroactivity. 
The Circuits disagree over the continued viability of 
fundamental rules and methods of statutory construction.

A. There is a Circuit Conflict Over the Basic 
Rules for Construing Statutory Language

In determining whether the Civil Rights Act of 1991 
applies to pre-Act claims, the Circuits arrived at diametrically 
opposing conclusions from the same statutory terms. The 
Ninth Circuit in Davis found dispositive the language of 
§§ 402(a), 402(b) and 109(c). Section 402(a), entitled 
"Effective Date -- In General", provides:

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

The Davis court examined the two statutory subsections that 
expressly do "otherwise specifically provide[]..." and confirmed 
by negative inference that § 402(a)’s mandate that the Act 
"take effect upon enactment" includes application to pending, 
pre-Act claims. One of the exceptions to the general 
applicability rule in § 402(a) is found in § 402(b), entitled 
"Effective Date -- Certain Disparate Impact Cases." Section 
402(b) states:

Notwithstanding any other provision of this 
Act, nothing in this Act shall apply to any 
disparate impact case for which a complaint 
was filed before March 1, 1975, and for which 
an initial decision was rendered after October 
30, 1983.



10

Section 402(b) ensures that the Act shall not apply 
retrospectively to the Wards Cove case. The other exception 
to § 402(a) is § 109(c), entitled "Protection of Extraterritorial 
Employment -- Application of Amendments." Section 109(c) 
provides that:

The amendments made by this section [§ 109] shall 
not apply with respect to conduct occurring before the 
date of the enactment of this Act.

Section 109(c) provides that the amendments giving the Act 
extraterritorial reach do not apply to pre-Act conduct.4

The Ninth Circuit in Davis found that the text of the 
1991 Act is clear. The "directives from Congress that in two 
specific instances [§§ 402(b) and 109(c)] the Act not be 
applied to cases having to do with pre-Act conduct provide 
strong evidence of Congress’ intent that the courts treat other 
provisions of the Act as relevant to such cases." Davis, 1992 
WL 251513, at * 14. The court in Davis concluded that 
"[t]here would have been no need for Congress to provide 
that the Act does not pertain to the pre-passage activities of 
the Wards Cove company, see Section 402(b), or of American 
businesses operating overseas, see Section 109(c), if it had not 
viewed the Act as otherwise applying to such conduct." Id.

4 The Ninth Circuit also considered §§ 2 and 3, which include 
Congress’ finding that Wards Cove Packing Co. i\ Atonio, 490 U.S. 642 
(1989), "has weakened the scope and effectiveness of federal civil rights 
protection," and Congress’ desire to "codify the concepts of ’business 
necessity’ and ’job related’ enunciated in ... Supreme Court decisions prior 
to Wards Cove..." and to "respond to recent decisions of the Supreme 
Court ...." Davis 1992 WL 251513, at *14. According to the Ninth Circuit, 
these provisions show "Congress’ sense that the Supreme Court had 
constricted the Nation’s civil rights laws so as to afford insufficient redress 
to those who have suffered job discrimination," and therefore support 
application of the new Act to pending claims. Id. at *15.



11

In thus construing the 1991 Act, Davis applied the rule 
that "a statute should be interpreted so as not to render one 
part inoperative." See Davis 1992 WL 251513, at *14 {citing 
South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 
510 n. 22 (1986), quoting Colautti v. Franklin, 439 U.S. 319, 
392 (1979).5 This well established principle was reaffirmed 
in United States v. Nordic Village, Inc., 112 S. Ct. 1011, 1015 
(1992) (holding that "a statute must, if possible, be construed 
in such a fashion that every word has some operative effect"). 
The other Circuits, however, including the court below, have 
declined to apply this rule, thus creating conflicts both among 
the Circuits and with this Court’s clear mandate.

The Davis court also relied on the rule of construction 
that "where 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." Davis at *14, {quoting Russello v. United States, 
464 U.S. 16, 23 (1983), quoting United States v. Wong Kim Bo, 
472 F.2d 720, 722 (5th Cir. 1972)). The other Circuits 
disregarded this rule in determining whether the 1991 Act 
applies to pre-Act claims and, again, are in conflict with the 
Ninth Circuit and this Court.

In disregarding the rules of statutory construction 
applied in Davis, each of the other Circuits that have 
considered the issue have not found the statutory language

For this proposition, the court in Davis also cited Kuiigys v. United 
Slates, 485 U.S. 759, 778 (1988) (plurality opinion of Scalia, J.); Mountain 
States Tel. & Tel. Co. v. Pueblo o f Santa Ana, 472 U.S. 237, 249-50 (1985) 
[quoting Colautti)-, United States v. Menasclie, 348 U.S. 528, 538-39 (1955) 
[quoting Montclair v. Ramsdell, 107 (17 OFIO) U.S. 147, 152 (1883)); and 
Beisler v. Commissioner o f Internal Revenue, 814 F.2d 1304, 1307 (9th Cir. 
1987) (tui banc).



12

conclusive. Some Circuits have simply disregarded §§ 402(b) 
and 109(c) without comment about the clear inference those 
sections create. The Sixth Circuit in Vogel did not consider 
§§ 402(b) and 109(c) in construing the statute, found § 402(a) 
alone insufficiently clear, and turned directly to the legislative 
history, which it found to be inconclusive. 959 F.2d at 598. 
The Seventh Circuit in Luddington did likewise. 966 F 2d at 
227.

The Eleventh Circuit in Baynes did not specifically 
discuss any of the Act’s language, but simply remarked that 
"[t]he Civil Rights Act of 1991 does not say whether it applies 
retroactively or prospectively." Baynes, at *1. Baynes thus 
appears to demand an express general statement using the 
words "prospective" or "retroactive" — a level of explicitness 
far beyond what this Court has previously demanded. In 
Kaiser Aluminum & Chemical Corp. v. Bonjomo, 494 U.S. 827, 
838 (1990), the Supreme Court held that the plain language 
of the provision of the Federal Courts Improvement Act of 
1982 that amended the federal postjudgment interest statute 
was on its face clearly inapplicable to judgments entered 
before its effective date. 494 U.S. at 838. The Court relied 
on (a) a statutory reference to the calculation of interest 
"from the date of the entry of the judgment....," 494 U.S. at 
838, and (b) the reference to "the rate" and "a rate" of 
interest, id., which the Court took to mean that a single rate 
should be applied, and that it should be the rate that was in 
effect on the date of entry of the judgment. Id. The 
inferences to be drawn from §§ 402(b) and 109(c) are more 
straightforward than those this Court in Bonjomo held were 
facially clear. In demanding a more express statement, 
Baynes represents a new approach to statutory construction 
inconsistent with this Court’s own precedent.



13

B. There is a Circuit Conflict Over the Role of 
Legislative Language and History in Statutory 
Interpretation

In addition to the conflict among the Circuits about 
how to read the statute’s plain language, the Circuits disagree 
over the role that legislative history plays in statutory 
construction. Several of the Circuits that found the text 
inconclusive did so by drawing on the admittedly unclear 
legislative history of the 1991 Act in order to inject some 
ambiguity into the statutory language. The Ninth Circuit in 
Davis followed this Court’s recent pronouncement in 
Bonjomo that "[t]he starting point for interpretation of a 
statute ’is the language of the statute itself. Absent a clearly 
expressed legislative intention to the contrary, that language 
ordinarily must be regarded as conclusive.’" 494 U.S. at 835 
{quoting Consumer Prod. Safety Comm’n v. GTE Sylvania, 
Inc.. 447 U.S. 102. 108 (1980)). This Court just last Term in 
Connecticut Nat’l Bank v. Germain, 112 S. Ct. 1146, 1149 
(1992), reaffirmed that "courts must presume that a 
legislature says in a statute what it means and means in a 
statute what it says there." The other Circuits, however, 
failed to apply this principle, thus generating an additional 
inter-circuit conflict.

The District of Columbia Circuit in Gersman, for 
example, rejected the statutory language argument that was 
determinative in Davis by drawing selectively on remarks in 
floor debates by legislators opposed to retroactivity, including 
Senators Dole, Danforth, and Gorton, and Representative 
Hyde. In light of such legislative history, the court in 
Gersman concluded that the language of the statute on its 
face was unclear, and "one might view these two subsections



14

[402(b) and 109(c)] not as redundancies, but rather as 
insurance policies." Gersman, 975 F.2d at 890.6

The court below considered § 402(a) in isolation, and 
held that it "could mean that the Act applies to pending cases 
or it could mean it should be applied only to conduct 
occurring as of that date of enactment." App. at 12a. In an 
approach similar to that of the District of Columbia Circuit 
in Gersman, the court then quoted at length from the Eighth 
Circuit’s analysis in Fray of the legislative history to conclude 
that §§ 402(b) and 109(c) do not in fact have any 
independent significance, but are only "hedged ... bets" by the 
minority in Congress that opposed retroactivity. App. at 13a 
(quoting Fray, 960 F.2d at 1377).

Other Circuits, too, have responded to contentions 
that the statute on its face is clear by relying on legislative 
history to read ambiguity into the statute’s terms. E.g. 
Johnson v. Unde Ben’s, Inc., 965 F.2d at 1363 (holding that 
the express exceptions to applicability in §§ 402(b) and 109(c) 
do not clearly imply a general rule of applicability in § 402(a), 
"given the swirling confusion surrounding the Act’s passage"); 
Mozee, 963 F.2d at 933 (holding §§ 402(b) and 109(c) 
inconclusive because the legislative history makes "fairly clear" 
that these sections were no more than "clear assurance" or

6 Ironically, the Gersman court emphasized that "we do not inquire 
what the legislature meant; we ask only what the statute means," id. at 891, 
quoting Starr, Obsen’ations about the Use o f  Legislative History’, 1987 Duke 
L. J. 371, 378 quoting O.W. Holmes, The Theory o f Legal Interpretation in 
Collected Legal Papers, 207 (1920), because "it is only the statute itself 
that is law," id. Yet the court nonetheless did dig below the surface of the 
statutory language and drew on "snippets" of the legislative history to find 
ambiguities behind the otherwise clear message of §§ 402(b) and 109(c) 
Id. at 890.



15

"extra assurance" of prospective application in specified 
circumstances).7

In sum, the Circuits have taken conflicting approaches 
on the basic questions of interpreting statutory text, and of 
the proper role of legislative history in construing legislative 
terms. These questions are important, and they continue 
frequently to vex the lower courts. Seven Circuits have 
already addressed these issues in the context of the 
applicability of the 1991 Civil Rights Act, and their conflicting 
approaches call for resolution by this Court.

II. There is a Conflict Among tiie Circuits 
Regarding Whether New Legislation,
Such as § 101 Of The 1991 Civil Rights 
Act, Should Be Presumed Applicable To 
Pre-Act Claims

A. There are Conflicting Presumptions Under 
Bradley v. Richmond School Board and Bowen v. 
Georgetown University Hospital

The Circuits are in conflict regarding the appropriate 
presumption to determine the applicability of new legislation 
to pending claims, and the Circuits identify conflicting 
decisions of this Court as the root of the confusion. The 
court below referred to "conflicting rules of construction" 
announced by this Court in Bradley v. Richmond School Bd., 
416 U.S. 696 (1974), and Bowen v. Georgetown University 
Hospital. 488 U.S. 204 (1988). App. lla-12a; see Vogel, 959

7 Although the Seventh Circuit in Mozee asserts that the legislative 
history makes clear that § 402(b) and § 109(c) are only intended to 
provide extra assurance of the Act’s nonretroactivity, the court 
paradoxically acknowledges that "[a] clear indication of congressional 
intent cannot be deciphered from the legislative history." 963 F.2d at 934.



16

F.2d at 597 (referring to Supreme Court doctrine on 
application of new legislation as "not yet settled"). Bradley 
held that a new statute applies to a pending claim "unless 
doing so would result in manifest injustice or there is 
statutory direction or legislative history to the contrary." 416 
U.S. at 711. Bowen, on the other hand, stated that generally 
"[rjetroactivity is not favored in the law. Thus, congressional 
enactments and administrative rules will not be construed to 
have retroactive effect unless their language requires this 
result." 488 U.S. at 208. This Court in Bonjomo, 494 U.S. at 
828, referred to this "apparent tension" in the prior decisions, 
but did not resolve it because the statute at issue in Bonjomo 
was clear on its face.

Other Courts of Appeals have also expressly referred 
to a conflict in this Court’s cases, and have struggled to apply 
the decisions in Bradley and Bowen. The Seventh Circuit in 
Mozee referred to "conflicting Supreme Court precedent," and 
to "two seemingly contradictory lines of cases." 963 F.2d at 
934, 935. See Luddington, 966 F.2d at 227 (stating that "the 
courts do not have a consistent rule for deciding whether a 
statute shall be given retroactive, or merely prospective, effect 
when the statute does not say," and agreeing with Justice 
Scalia’s observation in Bonjomo that the Supreme Court’s 
rules are "in irreconcilable contradiction"). The Eighth 
Circuit in Fray agreed that the Supreme Court has established 
"two contradictory rules of construction." 960 F.2d at 1375. 
The Eleventh Circuit in Baynes similarly stated that this Court 
"has so far declined to resolve the conflict in its own rules on 
presumptions of statutory retroactivity." 1992 WL 296716 at 
*1. The Fifth Circuit in Johnson lamented being "[fjorced ... 
to choose a cannon of construction without the guidance of 
controlling authority...." 965 F.2d at 1473.

In the face of this conflict, some courts have simply 
made a choice to follow either Bradley, or Bowen. See, e.g.,



17

Landgraf v. USI Film Products, 968 F.2d 427, 432 (5th Cir. 
1992) (holding under Bradley that § 102 of the 1991 Act 
should not apply); Mozee, 963 F.2d at 938, 940 (holding under 
Bowen that the 1991 Act should not apply); Fray, 960 F.2d at 
1375, 1378 (referring to prior Eighth Circuit cases choosing 
to follow Bowen rather than Bradley, and holding that the
1991 Act should not apply under either presumption); Baynes,
1992 WL 296716 *2 (referring to prior Eleventh Circuit cases 
choosing to follow Bradley rather than Bowen, and holding 
that the 1991 Act should not apply under either 
presumption). Other courts have made attempts to reconcile 
Bradley and Bowen by identifying the distinct circumstances 
in which each applies. E.g. Vogel, 959 F.2d at 598 (holding 
that Bradley applies only when new legislation does not alter 
substantive rights); Johnson, 965 F.2d at 1374 (same); 
Gersman, 975 F.2d at 892-900 (same). Certiorari should be 
granted in this case because the Circuit courts need 
additional guidance from this Court on which presumption to 
apply.

The confusion in the law governing application of new 
legislation is also reflected in the fact that, of the Courts that 
have declined to apply the 1991 Act to pending claims, 
several have done so over strong dissents. See, e.g., Mozee, 
963 F.2d at 940 (Cudahy, J., dissenting); Fray, 960 F.2d at 
1379 (Heaney, J., dissenting); Vogel, 959 F.2d at 601 (Ryan, 
J., dissenting). Moreover, well over two hundred district 
courts cases around the country have used various rationale 
to reach conflicting decisions on the applicability of the same 
provisions of the Civil Rights Act of 1991 to pending claims. 
See generally. Fray, 960 F.2d at 1374, 1383-84 (referring to the 
confusion in the district courts, and appending a list of cases); 
Vogel, 959 F.2d at 598 (referring to split among the district 
courts).



18

The need for further guidance from this Court is also 
demonstrated by the fact that, in litigation to which it is a 
party, the United States has not taken a consistent position 
on whether Bradley or Bowen governs. In a confused and 
important area of the law, the lower federal courts might 
ordinarily look to the Department of Justice for principled 
guidance. Since this Court decided Bowen, however, the 
United States has varied its position from case to case, 
enthusiastically advocating application of the Bradley rule in 
some cases, then disavowing it in others. For example, in 
several recent briefs, the United States has asserted that 
"Bradley correctly states the law,"8 describing the holding as 
"important," "well-established,"9 "fundamental"10 11 a "time- 
honored principle,"11 "well settled," and the rule which 
"should control."12 In these cases, government attorneys 
repeatedly quote the holding in Bradley that

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

The briefs cited herein are on file with this Court as Materials 
Lodged by Atnicus NAACP Legal Defense and Educational Fund, Inc., 
accompanying the petition for certiorari in Hades v. United Stales, No. 91- 
1075 certiorari denied,__U .S .__ , 118 L.Ed.2d 419 (1992).

9 Response of the United States to Defendants’ Motion to Strike 
Claims for Damages and Penalties, United States v. Rent America, No. 89- 
6188-PAJNE (S.D.Fla.), at 23.

10 Brief for Respondent, Ayala-Cliave: i\ I.N.S., No. 91-70262 (9th 
Cir.), at 19.

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

12 Brief of Plaintiff-Appellant Federal Deposit Insurance 
Corporation, Federal Deposit Insurance Corp. v. Wriglit, No. 90-2217 (7th 
Cir.), at 26, 27.



19

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 legislative history to the 
contrary.13

Elsewhere, however, the United States has denigrated Bradley 
and the similar decision in Thorpe v. Housing Authority o f 
Durham, 393 U.S. 268 (1969), as

two exceptional Supreme Court decisions that 
conspicuously depart from the general and 
longstanding rule against retroactivity .... Nothing in 
the Bradley Court’s reasoning compelled the 
conclusion that its broad language suggests ....

* * *

["]It is significant that not a single one of the 
earlier cases cited in Thorpe and Bradley ... 
even 1purports to be applying a presumption of 
retroactivity.14

When the United States has decided to oppose application of 
a particular new statute to a pre-Act claim, it has repeatedly 
urged the lower courts to "choose [Bowen v.J Georgetown 
over Bradley," insisting that "Georgetown is the better

13 See, e.g., United Stales Reply to Defendants’ Oral Motion to 
Dismiss, United Slates v. Cannon, Civil Action No. 6:91-951-3K (D.S.C.), 
at 4, quoting Bradley i'. Richmond School Bd., 416 U.S. at 711.

14 Defendant’s Memorandum in Opposition to Plaintiffs Motion to 
File Second Amended Complaint, Van Meter v. Bair, Civil Action No. 91- 
0027 (GAG) (D.D.C.) at 14, 16 (emphasis in original) (quoting in part the 
concurring opinion of Scalia, J., in Bonjorno, 110 S.Ct. at 1584)



20

decision."15 The inconsistent positions taken by the 
government from case to case underscore the national 
importance of the issues presented in this petition, and the 
need for a resolution of the conflict among the circuits.

B. There is a Conflict Over Whether Retroactivity 
is Determined by Reviewing the Act as a 
Whole or by Reviewing the Section at Issue

There is a separate conflict in the Circuits about 
whether the applicability of the 1991 Act should be analyzed 
with reference to the Act as a whole, or to the particular 
section sought to be applied. For example, the Fifth Circuit 
expressly limited its determinations in Johnson and Landgraf 
to the applicability of the particular sections before it; the 
court below, in contrast, held that the Act as a whole is 
inapplicable. Compare Johnson, 965 F.2d at 1372, 1374, and 
Landgraf968 F.2d at 432-33, with Harvis, App. 14a. Johnson 
expressly declined to consider "whether the Act’s provisions 
affecting Title VII disparate impact claims are retroactive," 
because those provisions would have had no effect on 
Johnson’s claims. 965 F.2d at 1372. The court then 
examined § 101 alone to determine whether it "affects 
substantive antecedent rights." Id. at 1374. Landgraf similarly 
looked separately at each provision at issue in that case to 
analyze whether its application would create "manifest 
injustice" under Bradley. 968 F.2d at 432-33. The Sixth 
Circuit in this case, however, held that the "distinction 
between § 101 [at issue here] and § 108 [at issue in Vogel] is 
immaterial, as both Fray and Vogel examined the retroactivity 
of the 1991 CRA as a whole, not in terms of specific sections, 
and both courts concluded that applying the Act retroactively

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



21

would adversely affect substantive rights and liabilities." App. 
14a (emphasis added).

The Court of Appeals decisions that analyze the 
applicability of the 1991 Act as a whole conflict with clear 
precedent from this Court requiring section-by-section 
analysis. In Bradley itself, this Court examined only § 718 of 
the Education Amendments of 1972, relating to attorney’s 
fees, to determine whether any "manifest injustice" would be 
created by applying that particular provision to the pending 
case. Bradley, 416 U.S. at 710-724. The Court in Bradley did 
not consider the potential effects on pending cases of the 
entire 176 pages of statutory provisions included in the 
Education Amendments of 1972. See Pub. L. No. 92-318, 
1972 U.S.C.C.A.N. (86 Stat.) 278-454. Similarly, this Court 
in United States v. Security Industrial Bank determined the 
inapplicability to pending claims of only § 522(f)(2) of the 
Bankruptcy Reform Act of 1978, even while it acknowledged 
the applicability of the balance of the amendments, on the 
ground that only § 522(f)(2) would "destroy previously vested 
property rights." 459 U.S. 70, 79 (1982). Certiorari should be 
granted here to review the decision below which erroneously 
determined the non-retroactivity of the 1991 Civil Rights Act 
as a whole.

III. Under This Court’s Prior Decisions, The 
Construction Of 42 U.S.C. § 1981 In Pa t t e r s o n  v. 
M cL e a n  Cr e d it  Un io n  Should Nor Be Applied 
Retroactively After Congress Expressly 
Rejected It

Certiorari should be granted to determine the proper 
application of Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), 
and James B. Beam Distilling Co. v. Georgia, 111 S. Ct. 2439 
(1991), to this case. The court below applied the Patterson 
decision retroactively to Rivers’s and Davison’s § 1981 claims



22

after Patterson's construction of the statute had been 
repudiated by Congress. The decision below is thus contrary 
to this Court’s decisions.

The common animating principle behind Chevron and 
the fractured opinions in James B. Beam is that a new, 
judicially announced rule should be promptly and uniformly 
applied because the new rule is the one which has been 
determined to be correct, and which will apply in all future 
cases. Application of a new — and therefore presumably 
correct — rule to pending cases advances the purposes 
behind the judicial new rule, and promotes prompt uniformity 
among judicial decisions. However, these considerations are 
inapplicable where the new judicial rule has been repudiated 
by Congress and will not be applied in the future. The effect 
of retroactive application of a judicial construction that 
Congress has rejected, such as Patterson's interpretation of 
§ 1981. is simply to ensure more inconsistent decisions and to 
perpetuate bad law.16

The propriety of non-retroactive application of new 
rules of decision has long been governed by the standard set 
forth in Chevron, 404 U.S. 97. This Court last Term in James 
B. Beam limited Chevron by holding that when a new rule of 
constitutional law is applied in the case announcing that rule, 
the rule must then also be applied retroactively to all other 
pending claims. James B. Beam did not overrule Chevron. 
Because there were five separate opinions in James B. Beam, 
and no plurality opinion, however, the precise scope of the

16 This reasoning does not depend on a determination that the 1991 
Civil Rights Act applies to pending cases. Rather, it rests on a more 
general notion that, to the extent that James B. Beam disfavors application 
of defunct rules to pending cases and insists on prompt application of new 
rules, that interest is subverted, not furthered, by anachronistic application 
of Patterson.



23

decision is unclear, as is the continuing role of Chevron. This 
case offers an ideal opportunity to refine the principles of 
James B. Beam and Chevron, and to clarify the circumstances 
in which each decision applies.

Because the Supreme Court’s holding in Patterson 
interpreted 42 U.S.C. § 1981 and not the Constitution, the 
holding of James B. Beam is inapplicable here, and Chevron 
remains the test for determining retroactivity of Patterson. 
Justices Scalia, Blackmun and Marshall concurred in the 
judgment in James B. Beam in support of the retroactivity of 
a constitutional decision to the claim before them, but they 
did not support the broader reasoning of Justice Souter’s 
opinion, nor reject the earlier holding of the Chevron case.17 
Only Justices Souter, Stevens, and White adhered to a 
general principle of retroactivity not limited to constitutional 
decisions.18

Even if James B. Beam applied to decisions regarding 
statutory as well as constitutional law, it should not apply to 
this case because James B. Beam did not involve the 
retroactive application of a rule of decision which has been 
subsequently repudiated by Congress. The test announced in 
Chevron thus applies here. The Court below, however, 
applied Chevron improperly because it failed to consider the 
impact of the 1991 Act on the retroactivity analysis.

17 111S. Ct. at 2449 (opinion by Blackmun, J., joined by Marshall 
and Scalia, JJ., concurring in the judgment) (stating agreement only "that 
failure to apply a newly declared constitutional rule to cases pending on 
direct review violates basic norms of constitutional adjudication.") 
(emphasis added).

18 111S. Ct. at 2442 (opinion by Souter, J., joined by Stevens, J.); 
id. at 2448 (opinion by White, J., concurring in the judgment).



24

The three Chevron factors strongly counsel against 
application of Patterson after Congress has rejected it. First, 
Congress’ numerous references in enacting the 1991 Act to its 
desire to restore § 1981 to its pre-Patterson construction make 
clear that the decision "establish[ed] a new principle of law..." 
at variance with the prior construction of § 1981. Chevron, 
404 U.S. at 106.19 Second, the "purpose and effect" of 
Patterson’s reading of § 1981, and the interest in "furthering] 
... its operation," id. at 106-107, do not support Patterson’s 
retroactivity because there is no valid interest in perpetuating 
the operation of an obsolete rule by continuing to apply it 
retroactively after it has been expressly repudiated. Third, 
"the inequity imposed by retroactive application" and the 
mandate of Chevron to avoid "injustice or hardship," id. at

15 Congress passed the 1991 Act "to respond to recent decisions of 
the Supreme Court...." § 3(4). The legislative history corroborates the 
plain language of the statute on § 101’s restorative function. There was 
no disagreement by any member of Congress that legislation overturning 
Patterson would restore what until 1989 had been the established reading 
of § 1981. See. e.g. 137 Cong. Rec. S 15235 (daily ed. Oct. 25, 1991) (Sen. 
Kennedy) (section 101 "will reverse ... Patterson... and restore the right of 
Black Americans to be free from racial discrimination in the performance 
—  as well as the making —  of job contracts"); 137 Cong. Rec. S 15489 
(daily ed. Oct. 25, 1991) (Sen. Leahy) ("The Patterson decision drastically 
limited section 1981’s application.... The Civil Rights Act of 1991 returns 
the originally intended broad scope of this statute"); 137 Cong. Rec. H 
9526 (daily ed. Nov. 7, 1991); (Rep. Edwards) (section 101 "reinstates" and 
"restores" law prior to Patterson)-, 137 Cong. Rec. H3900 (daily ed. June 4, 
1991) (Rep. Goodling) ("[H.R.l] reverses ... the Patterson case.... [T]he 
substitute restores the expansive reading of Section 1981 that racial 
discrimination is prohibited in all aspects of the making and enforcement 
of contracts"); 137 Cong. Rec. H. 3935 (daily ed. June 5, 1991) (Rep. 
Goodling) (describing Administration proposal as "same provision" as the 
§ 101 precursor in H.R. 1); 136 Cong. Rec. S 9851 (daily ed. July 17,1990) 
(Sen. Kassebaum) (§ 101 codifies "the law as it was prior to Patterson")-, 
137 Cong. Rec. S 15285 (daily ed. Oct. 28, 1991) (Sen. Seymour) (Act 
"restores section 1981").



25

107, requires that Patterson not be applied. Accrued claims 
of racially discriminatory firing that were filed prior to the 
Supreme Court’s decision in Patterson and that were 
ultimately decided after Congress rejected Patterson should 
not be eliminated simply because they were pending during 
the brief life of Patterson. Similar claims survived simply 
because they were decided earlier or arose later. Certiorari 
should be granted to review the decision of the court below 
because it applied Patterson retroactively without properly 
analyzing the impact of the 1991 Act on application of 
Chevron to this case.



26

CONCLUSION

For the reasons stated above, a writ of certiorari 
should issue to review the judgment and opinion of the Sixth
Circuit.

Respectfully submitted,

Ellis Boal 
925 Ford Building 
Detroit, MI 48226 
(313) 962-2770

Cornelia T.L. Pillard 
NAACP Legal Defense & 

Educational Fund, Inc. 
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

Julius L. Chambers 
Charles S. Ralston 
Eric Schnapper 
NAACP Legal Defense & 

Educational Fund, Inc. 
Suite 1600
New York, NY 10013 
(212) 219-1900

December 2, 1992



A P P E N D I X



Recommended For Full-Text Publication 
Pursuant to Sixth Circuit Rule 24

No. 91-3348

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

JAMES T. HARVIS, JR., 

Plaintiff,

MAURICE RIVERS and 
ROBERT C. DAVISON.

Plaintiffs-
Appellants.

ROADWAY EXPRESS. INC.

Defendant-
Appellee.

On Appeal from 
the United States 
District Court for 
the Northern 
District of Ohio

Decided and Filed August 24, 1992

Before: GUY, BOGGS, and SILER, Circuit Judges.

BOGGS. Circuit Judge, delivered the opinion of the 
court, in which GUY, Circuit Judge, joined. SILER, Circuit 
Judge (pp. 14-16) [14a-16a], delivered a separate opinion 
concurring in part and dissenting in part.



2a

BOGGS, Circuit Judge. In this race discrimination 
case, the appellants originally claimed they were discharged 
because of racial discrimination and now state that the claim 
was also for retaliatory discharge for winning a grievance, 
exercised for racial reasons. The claim was dismissed by the 
district court based upon the United States Supreme Court 
ruling in Patterson v. McLean Credit Union, 491 U.S. 164
(1989). On appeal, appellants argue that the district court 
misapplied Patterson, but that even if their claim had been 
properly dismissed, this court should reinstate their claim by 
retroactively applying to this case the new Civil Rights Act 
of 1991 (CRA of 1991), Pub. L. No. 102-166, 105 Stat. 1071- 
1100, 42 U.S.C. § 1981, which explicitly enacted the 
interpretation of § 1981 rejected in Patterson. We reverse on 
the grounds that the district court misapplied Patterson to 
dismiss appellants’ retaliatory discharge claim. We affirm 
the district court’s dismissal of the race discrimination in 
firing claim, and hold that the CRA of 1991 should be not 
applied retroactively to this case.

I

Plaintiffs-appellants Maurice Rivers and Robert C. 
Davison are Black garage mechanics who were employed by 
defendant Roadway Express, Inc. since 1972 and 1973 
respectively. On the morning of August 22, 1986, Roadway 
verbally informed Rivers and Davison that they were 
required to attended disciplinary hearings that same day 
related to their accumulated work record. Both plaintiffs 
refused to attend, alleging inadequate notice. Roadway was 
contractually required to provide prior written notice of such 
hearings and allegedly routinely did so for white employees. 
The hearings resulted in two-day suspensions for both 
appellants. Appellants filed grievances with the Toledo 
Local Joint Grievance Committee (TUGC), which granted 
the grievances based on "improprieties" and awarded each 
appellant two days of back pay.



3a

Shortly after these initial hearings, disciplinary 
hearings were again called by Roadway’s Labor Relations 
Manager, James O’Neil, who announced that he would hold 
disciplinary hearings against Rivers and Davison within 
seventy-two hours. Rivers and Davison again refused to 
attend, claiming inadequate notice. As the result of the 
hearings, both Rivers and Davison were discharged on 
September 26, 1986, for refusing several direct orders to 
attend the hearings and for the accumulated work record.

In February 1987, Rivers and Davison, along with 
James T. Harvis, filed this suit, alleging that Roadway 
discriminated against them on the basis of race, in violation 
of 42 U.S.C. § 2000e. They also alleged that Roadway 
violated the Labor Management Relations Act of 1947 
(LMRA), 29 U.S.C. § 185(a), and brought an unfair 
representation claim against their union. Both of these 
latter claims were dismissed on summary judgment by the 
district court.

The district court then separated Harvis’s case, which 
went to trial and ended in a jury verdict on the § 1981 claim 
for Roadway. The district court ordered judgment against 
Harvis on his § 1981 and Title VII claims. Harvis’s appeal 
to this court was denied and the trial court’s judgment 
affirmed. Harvis v. Roadway Express, Inc., 923 F.2d 59 (6th 
Cir. 1991).

On June 15, 1989, shortly after Harvis’s verdict and 
before appellants went to trial, the Supreme Court decided 
Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 
2363 (1989), which held that the right to make contracts 
protected by § 1981 does not apply to conditions of 
employment, but only covers discrimination in the formation 
of the employment contract or the right to enforce the 
contract. The district court, while holding that Patterson was 
not retroactive with respect to Harvis’s jury verdict, held it 
did have retroactive effect on the untried and pending



4a

§ 1981 claims of Rivers and Davison. The district court 
concluded that appellants’ claims were for discriminatory 
discharge and thus, based on Patterson, could not be 
maintained under § 1981. Rivers and Davison argued that 
their claims were not simply for discriminatory discharge, but 
rather for retaliation for their success in enforcing contract 
rights in a grievance hearing. However, the district court 
held that these were only basic breach of contract claims, 
and not claims based on the right to enforce contracts, which 
would fall under § 1981. After dismissing the § 1981 claims, 
the district court held a bench trial on plaintiffs’ Title VII 
claims and ruled in favor of Roadway, holding that Rivers 
and Davison failed to establish that their discharge from 
employment was based upon their race.

Rivers and Davison appeal the district court’s 
dismissal of their § 1981 claims on two grounds. First, they 
argue that Patterson does not preclude this action, as it is 
not an action for discriminatory discharge, but rather an 
action based on retaliation for attempting to enforce the 
labor agreement, thus squarely falling under § 1981. Second, 
while this appeal was pending, the CRA of 1991 was 
enacted, explicitly contradicting the Patterson decision. 
Appellants argue that the CRA of 1991 should be applied 
retroactively to their § 1981 claims, thus invalidating the 
district court’s decision. The case, they argue, should be 
remanded for a new determination under this new 
legislation.

II

42 U.S.C. § 1981 provides:

All persons within the jurisdiction of the United 
States shall have the same right in every State and 
Territory to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal 
benefit of all laws and proceedings for the security of



5a

persons and property as is enjoyed by white citizens, 
and shall be subject to like punishment, pains, 
penalties, taxes, licenses, and exactions of every kind, 
and to no other.

The Patterson court limited the scope of § 1981 
actions by holding that § 1981 does not apply to 
discrimination in conditions of employment, but only 
prohibits discrimination in the formation of the employment 
contract or the right to enforce the contract. Patterson, 491 
U.S. at 176. Thus, under Patterson, § 1981 "covers only 
conduct at the initial formation of the contract and conduct 
which impairs the right to enforce contract obligations 
through legal process." Id. at 179.

While Patterson did not directly address the issue of 
whether § 1981 applied to discriminatory discharges, this 
court, along with a majority of other courts, has held that 
claims of discriminatory discharge arc no longer cognizable 
under § 1981 because discharge does not involve contract 
formation. See Prather v. Dayton Power & Light Co., 918 
F.2d 1255 (6th Cir. 1990), cert, denied, 111 S. Ct. 2889 
(1991); Hull v. Cuyahoga Valley Bd. o f Educ., 926 F.2d 505 
(6th Cir. 1991), cert, denied, 111 S. Ct. 2917 (1991). The 
plaintiffs, below and on appeal, argue that theirs were not 
discriminatory discharge claims, but rather, claims of 
retaliatory discharge where plaintiffs were punished for 
attempting to enforce their contract rights to be treated 
equally with white people. The district court rejected this 
claim as "bootstrapping" and held that this was solely a 
discriminatory discharge case.

Before deciding whether or not Patterson was 
correctly applied, we must first address whether the district 
court was correct in retroactively applying Patterson to the 
claims of Rivers and Davison. Our circuit has twice held 
that Patterson does apply retroactively to pending cases. In 
Prather v. Dayton Power & Light Co., supra, we applied



6a

Patterson retroactively to a pending discriminatory discharge 
case based on three factors used to determine whether an 
exception mandating non retroactivity exists, as discussed by 
the Supreme Court in Chevron Oil Co. v. Huson, 404 U.S. 97 
(1971). Under these factors, a decision will not be applied 
retroactively if, first, it

establishes a new principle of law, either by 
overruling clear past precedent on which 
litigants have relied . . .  or by deciding an 
issue of first impression whose resolution was 
not clearly foreshadowed.

Id. at 106 (citations omitted). The second retroactivity 
factor is the "prior history of the rule in question, its purpose 
and effect, and whether retrospective operation will further 
or retard its operation." Id. at 106-07. Finally, the third 
factor involves weighing "the inequity imposed by retroactive 
application" to avoid "injustice or hardship." Id. at 107.

Weighing these factors, the Prather court held that 
applying Patterson retroactively would not "retard its 
operation," nor would it produce "substantial inequitable 
results" that might otherwise be avoided and concluded that 
applying Patterson would not unduly prejudice the plaintiff. 
Prather. 918 F.2d at 1258. This decision was reaffirmed in 
Hull v. Cuyahoga Valley Bd. o f Educ., supra. The district 
court correctly found that Patterson applied retroactively to 
the pending § 1981 claims of Rivers and Davison.

Ill

Appellants argue that, even if Patterson is applied 
retroactively to their case, their claims still survive Patterson 
and the district court wrongly dismissed the claim as a 
discriminatory discharge complaint not recognized under 
§ 1981. We agree.



7a

Appellants contend that Patterson only eliminates 
those claims of retaliation for exercising rights that are 
unrelated to the specific § 1981 right to "make and enforce 
contracts." But, they argue, Patterson does not eliminate a 
cause of action for exercising rights that do relate to the 
enforcement of contract rights. Appellants maintain that 
they are not making discriminatory discharge claims, but 
rather are claiming retaliatory discharge that punished them 
for enforcing their contract right to receive notice equal to 
that received by whites.

Roadway counters that Rivers and Davison were not 
punished for enforcing their contract rights as

The right to enforce contracts does not 
however extend beyond conduct by an 
employer which impairs an employee’s ability 
to enforce through legal process his or her 
established contract rights.

Patterson, 491 U.S. at 177-78.

However, the prohibited conduct of impairing the 
ability to enforce contract rights is exactly what appellants 
are complaining about here. Rivers and Davison were 
punished, they contend, for trying to utilize the established 
legal process for their grievances. The fact that Roadway 
allowed formal "access" to legal process does not imply that 
it could never be impairing the employee’s "ability to enforce 
through legal process." An employer’s intimidation and 
punishment conducted inside formal legal process may 
impair an employee’s contract rights just as much as 
intimidation and punishment conducted outside formal legal 
process. See Carter v. South Central Bell, 912 F.2d 832, 840 
(5th Cir. 1990), cert, denied, 111 S. Ct. 2916 (1991) (court 
emphasized that the alleged conduct must have impaired the 
plaintiffs ability to enforce contractual rights either through 
court or otherwise on the basis of race).



8a

Appellants’ claims are similar to those in Von 
Zuckerslein v. Argonne National Lab., 760 F. Supp. 1310, 
1318 (N.D. 111. 1991), where plaintiffs were permitted to 
proceed to trial on their § 1981 claims that "defendants 
specifically retaliated against them for pursuing (or intending 
to pursue) their contract claims in the internal grievance 
forum." Id. at 1318 (emphasis in original). We do not agree 
with appellee’s argument that Von Zuckerstein is 
distinguishable because it involved an employer who 
impaired or impeded the plaintiffs from using the available 
legal process to enforce a specific anti-discrimination 
contract right. However. § 1981 speaks of the right to 
"enforce contracts," which includes any contract rights, not 
just anti-discrimination contract rights. The key here is that 
plaintiffs were impaired from enforcing contract rights, not 
the kind of contract right they were impaired from 
enforcing. Just because Rivers and Davison were allowed to 
use the available legal process does not mean the employer 
did not discriminate against them through retaliation for the 
very act of using that legal process. Retaliation is defined 
more broadly than mere access to legal process. McKnight 
v. General Motors Corp.. 908 F.2d 104. I l l  (7th Cir. 199), 
cert, denied, 111 S. Ct. 1306 (1991), held that retaliation "is 
a common method of deterrence." We hold that appellants 
have articulated this essential element of § 1981, that their 
ability to enforce claimed contract rights was impaired 
because of their race.

Roadway argues that even if retaliatory discharge did 
occur, the plaintiffs never alleged retaliatory discharge in 
either their first or amended complaints. However, upon 
examination of the record, we find that sufficient allegations 
exist to form the basis of a retaliatory discharge claim. 
While appellants admit that their pre-Patterson complaint 
was not specifically structured as a "right to enforce a 
contract" claim as opposed to a "condition of employment" 
claim, the very basis of their complaint has always stemmed 
from retaliatory discharge. They allege, in their amended



9a

complaint, that "Rivers’ [sic] and Davison’s discharges were 
taken without just cause. More particularly Roadway 
scheduled a hearing for them for September 26, 1986, based 
on conduct for which a grievance committee had previously 
exonerated them with backpay." We find that the appellants’ 
claims fall within the Patterson definition of permissible 
§ 1981 actions, as the claims involve discrimination in the 
right to enforce a contract. We hold that the district court 
wrongly dismissed appellants’ § 1981 claims and the case 
should be remanded for further proceedings on the § 1981 
claims.

Our holding that the case should be remanded for 
further proceedings on. appellants’ § 1981 claims raises 
potential collateral-estoppel problems. The district court has 
already had a bench trial on the appellants’ Title VII claims, 
finding that Rivers and Davison were not discharged from 
employment based on their race.

A similar situation existed in Lytle v. Household Mfg., 
Inc., 494 U.S. 545 (1990), where Lytle, a Black machinist for 
a subsidiary of Household Manufacturing, was dismissed for 
unexcused absences. Lytle filed a complaint with the EEOC, 
alleging that he had been treated differently than white 
employees who missed work. He then brought 
discriminatory discharge and retaliation claims under § 1981 
and Title VII. The district court dismissed Lytle’s § 1981 
claims, concluding that Title VII provided the exclusive 
remedy for his racial discharge and retaliation claims. At a 
bench trial on the Title VII claims, the district court 
dismissed Lytle’s discriminatory discharge claims pursuant to 
Rule 41(b), Fed. R. Civ. P„ and granted defendants 
summary judgment on the retaliation claim.

The Fourth Circuit affirmed, ruling that the district 
court’s findings with respect to Title VII claims collaterally 
estopped Lytle from litigating his § 1981 claims because the 
elements of a cause of action under § 1981 are identical to



10a

those under Title VII. Lytle, 494 U.S. at 549; see also 
Washington v. Brown & Williamson Tobacco Corp., 756 F. 
Supp. 1547, 1555 (M.D. Ga. 1991). The Supreme Court 
reversed, based on plaintiffs seventh amendment right to 
trial by jury in "suits at common law," noting that:

When legal and equitable claims are joined in 
the same action, "the right to jury trial on the 
legal claim, including all issues common to 
both claims, remains intact."

Lytle, 494 U.S. at 550 (citations omitted).

The Supreme Court distinguished the Lytle situation, 
where the equitable and legal claims were brought together, 
from the situation in Parklane Hosiery Co. v. Shore, 439 U.S. 
322 (1979), where the Supreme Court held that "an 
equitable determination can have collateral-estoppel effect 
in subsequent legal action and that this estoppel does not 
violate the Seventh Amendment." Lytle, 494 U.S. at 550-51 
(citing Parklane Hosiery Co., 439 U.S. at 335) (emphasis 
added).

We find that our situation falls squarely under the 
Lytle precedent and hold that collateral estoppel does not 
preclude relitigation of issues decided by the district court in 
its bench trial resolution of the equitable claims of Rivers 
and Davison under Title VII. As in Lytle, the purposes 
served by collateral estoppel do not justify applying the 
doctrine in this case. Id. at 553. Collateral estoppel is 
designed to protect parties from multiple lawsuits and 
potentially inconsistent decisions, as well as to conserve 
judicial resources. Ibid. Although remanding for further 
proceedings certainly will expend greater judicial resources, 
such litigation is essential in preserving Rivers’s and 
Davison’s seventh amendment rights to a jury trial.



11a

V

While this case was pending on appeal, the United 
States Congress passed the Civil Rights Act of 1991. 
Appellants now argue that the district court should also be 
reversed in light of the 1991 Act, which amends § 1981 to 
change the result in Patterson. The 1991 Act states that:

For 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.

Pub. L. 102-166, § 101(b); 42 U.S.C. § 1981(b).

Both this Circuit and the Eighth Circuit have 
addressed whether this act should apply retroactively to § 
1981 claims that were pending on appeal at the time of 
enactment. Both circuits have ruled that the CRA of 1991 
does not apply retroactively. Fray v. Omaha World Herald 
Co., 960 F.2d 1370 (8th Cir. 1992); Vogel v. City o f 
Cincinnati, 959 F.2d 594 (6th Cir. 1992); Mozee v. American 
Commercial Marine Service Co., 963 F.2d 929 (7th Cir. 1992).

Both Vogel and Fray examine the history of judicial 
treatment of retroactivity as applied to new legislation. 
Building upon both Roman civil law and English common 
law, up to 1969 it was a well-established principle in 
American jurisprudence that legislation must be applied only 
prospectively unless the legislature specifically decreed a 
retroactive application. Fray, 960 F.2d at 1374. However, in 
Thorpe v. Housing Auth. o f Durham, 393 U.S. 268 (1969), 
and in Bradley v. Richmond School Bd., 416 U.S. 696 (1974), 
the Supreme Court held that a new statute must be 
retroactively applied to a case that was pending on appeal at 
enactment "unless doing so would result in manifest injustice



12a

or there is statutory direction or legislative history to the 
contrary." Bradley, 416 U.S. at 711.

Later, in Bowen v. Georgetown University Hospital, 488 
U.S. 204 (1988), the Supreme Court reiterated the principle 
that "[rjetroactivity is not favored in the law. Thus, 
congressional enactments and administrative rules will not be 
construed to have retroactive effect unless their language 
requires the result." Id. at 208. While the Supreme Court 
acknowledged this tension in the case law in Kaiser 
Aluminum & Chemical Coip. v. Bonjorno, 494 U.S. 827
(1990). the court did not have to resolve the issue, as 
congressional intent was found to be clear in that case.

Given these conflicting rules of construction, both the 
Vogel and Fray courts examined the language and legislative 
history of the CRA of 1991 and concluded that it should not 
be applied retroactively. For example, § 402 of Pub. L. 102- 
166 states that "[ejxccpt as otherwise provided, this Act and 
the Amendments made by this Act shall take effect upon 
enactment." While appellants argue that this indicates 
retroactivity, the Vogel court correctly noted that this 
language could mean that the Act applies to pending cases 
or it could mean it should be applied only to conduct 
occurring as of that date of enactment. Vogel. 959 F.2d at 
597-98.

Both the Vogel and Fray courts also agree that the 
legislative history sheds little light on the matter, as Senators 
expressed conflicting views and no legislative committee 
reports exist explaining the bill. Fray. 960 F.2d at 1376-77. 
Appellants argue that retroactivity is implied because two 
sections are expressly made prospective. However, the Fray 
court notes that a bill that specifically changes the result in 
Patterson retroactively was vetoed by the President in 1990 
and Congress failed to override the veto. The court 
concluded that:



13a

We think a rather clear picture emerges from 
this review of the Act and its legislative 
history. Proponents of retroactively 
overruling Paltcrson commanded a majority in 
both houses of Congress, but they could not 
override the President’s veto of a 1990 bill 
that contained express retroactive provisions.
Thus, proponents could do no better than 
send an ambiguous law to the judiciary. On 
the other hand, opponents of retroactivity 
who favored enactment of a prospective law 
(including the President) were also willing to 
hand this controversial issue to the judiciary 
by passing a law that contained no general 
resolution of the retroactivity issue. However, 
when a congressional majority could be 
marshalled, retroactivity opponents "hedged 
their bets" by expressly making specific 
provisions, such as § 109, prospective only.

Fray, 960 F.2d at 1377.

Given the ambiguous legislative history and language
of the act, this court held in Vogel that

Bradley should be read narrowly and should 
not be applied in contexts where "substantive 
rights and liabilities", broadly construed, 
would be affected. Clearly, retroactive 
application of the 1991 Act would affect 
"substantive rights and liabilities" of the 
parties to this action.

Vogel, 959 F.2d at 598, citing United Stales v. Murphy, 937
F.2d 1032, 1037-38 (6th Cir. 1991).

Appellants argue that Vogel is not determinative here
since it deals with § 108, which is written differently from



14a

§ 101, the section at issue here. They also argue that the 
Fray opinion, which does deal specifically with § 101, is 
wrong. However, appellants’ arguments are not well taken 
on either count. Their distinction between § 101 and § 108 
is immaterial, as both Fray and Vogel examined the 
retroactivity of the 1991 CRA as a whole, not in terms of 
specific sections, and both courts concluded that applying 
the Act retroactively would adversely affect substantive rights 
and liabilities.

We agree with the Fray and Vogel decisions and hold 
that the 1991 CRA does not apply retroactively. However, 
as we also find that the district court misapplied Patterson, 
the case can be reversed on those substantive grounds alone. 
We REVERSE and REMAND for further proceedings 
under § 1981, as we hold that Patterson does not exclude 
§ 1981 claims based on retaliation for attempting to enforce 
contract rights.

SILER, Circuit Judge, concurring in part and 
dissenting in part. I concur with the majority opinion in full, 
except that which is listed in part III. It is my opinion that 
Patterson v. McLean Credit Union, 491 U.S. 164 (1989), does 
not permit a claim for retaliation pursuant to 42 U.S.C.
§ 1981 under the facts of this case. It may be that Patterson 
precludes any retaliatory claims under § 1981, but this court 
need not go that far.

First, I have much more of a problem than the 
majority in determining whether the plaintiffs ever alleged 
retaliatory discharge in either their first or amended 
complaints. However, for purposes of this analysis, I will 
assume that they did.

The majority relies upon the decisions in McKnight v. 
General Motors Corp.. 908 F.2d 104 (7th Circ. 1990), cert, 
denied. 111 S. Ct. 1306 (1991); and Von Zuckerstein v. 
Argonne Nal’l Lab., 760 F. Supp. 1310 (N.D. III. 1991).



15a

However, McKnight did not hold that § 1981 allows a claim 
tor retaliation. Instead, it assumed that it was so actionable 
"provided that the retaliation had a racial motivation." 
McKnight, 908 F.2d at 111. Then, the court went on to find 
that the plaintiff in that case "might be guilty of violating 
section 1981." Id. at 112 (emphasis added). It further stated 
that the question need not be pursued, "because General 
Motors did not interfere with contractual entitlements." Id.

Moreover, the court in Von Zuckerstein held at 1319 
that the plaintiffs in that case would have to establish "that 
they sought to use the internal grievance procedure to 
vindicate their contractual right to be free from 
discrimination." That is unlike the present case, which 
apparently does not have an antidiscrimination provision in 
the collective bargaining agreement.

Instead, I would follow the decision in Carter v. South 
Cent. Bell, 912 F.2d 832, 840 (5th Cir. 1990), cert, denied. 111 
S. Ct. 2916 (1991), which held that § 1981 no longer extends 
to retaliatory termination. Although that case is somewhat 
different from this one, in that the plaintiff asserted that he 
was retaliated against because of filing a charge with EEOC, 
which was a statutory right, not a contractual right, 
nevertheless, the court stated:

Were we to hold that section 1981 still 
encompasses retaliatory discharge, we would 
be encouraging litigation to determine what 
the employer’s subjective motive was when he 
fired the employee: was it to retaliate or 
"merely" to discriminate? This would be 
pointless. Both motives are equally invidious, 
and the employee suffers the same harm.
Because section 1981 no longer covers 
retaliatory termination, all suits for 
discriminatory dismissal must be brought 
under Title VII.



16a

Id. at 840-841. Accord Overby v. Chevron USA, Inc., 884 
F.2d 470, 472-473 (9th Cir. 1989), cited with approval in Hull 
v. Cuyahoga Valley Joint Vocational School Dist. Bd. o f Educ., 
926 F.2d 505, 509 (6th Cir.), cert, denied, 111 S. Ct. 2917
(1991), for the proposition that retaliatory discharge claim is 
conduct not cognizable under § 1981.

Moreover, this court has, by unpublished decisions, 
followed that rule from Carter. Although they have no 
precedential value, see Sixth Cir. R. 24(c), they were cited by 
Roadway Express in its brief. I am not inclined to 
completely ignore opinions of other judges on this court, 
even if they are not binding. In Christian v. Beacon Journal 
Publishing Co., No. 89-3822, 1990 U.S. App. LEXIS 12080 
(6th Cir. July 17, 1990) (unreported), the court held that 
claims of retaliatory discharge may not be brought pursuant 
to § 1981 under Patterson, citing Singleton v. Kellogg Co., No. 
89-1073, 1989 U.S. App. LEXIS 17920 (6th Cir. Nov. 29, 
1989) (per curiam) (unreported). See also Bohanan v. 
United Parcel Serv., No. 90-3155, 1990 U.S. App. LEXIS 
20154 (6th Cir. Nov. 14, 1990) (unreported) (Wellford, J., 
concurring). Therefore, I would affirm the district court in 
all respects.



17a

[Dated Oct. 13 1992]

No. 91-3348

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

JAMES T. HARVIS. JR., )
)

Plaintiff, )
)

MAURICE RIVERS; )
ROBERT C. DAVISON, )

)
Plaintiffs-Appellants, )

)
v ) O R D E R

)
ROADWAY EXPRESS. INC., )

)
Defendant-Appellee. )

BEFORE: GUY, BOGGS, and SILER, Circuit Judges.

The court having received a petition for rehearing en 
banc, and the petition having been circulated not only to the 
original panel members but also to all other active judges of 
this court, and no judge of this court having requested a 
vote on the suggestion for rehearing en banc, the petition 
for rehearing has been referred to the original hearing 
panel.

The panel has further reviewed the petition for 
rehearing and concludes that the issues raised in the petition 
were fully considered upon the original submission and



18a

decision of the case. Accordingly, the petition is denied. 
Judge Siler would grant rehearing for the reasons states in 
his dissent.

ENTERED BY ORDER OF THE COURT

___ N
Leonard Green, Clerk



19a

[Dated Jan. 19. 1990]

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF OHIO 

WESTERN DIVISION

James T. Harvis, Jr., 
et al.,

Plaintiffs Case No. C 86-7955

vs.

Roadway Express, Inc.. MEMORANDUM AND
et al., ORDER

Defendants

POTTER. J.:

This matter is before the Court on plaintiffs’ response 
to the Court’s show cause order of July 10, 1989, defendants’ 
reply, and plaintiffs’ surreply. This Court’s order of July 10, 
1989 ordered plaintiffs to show cause why their claims 
brought pursuant to 42 U.S.C. §1981 should not be 
dismissed pursuant to the Supreme Court’s decision in 
Patterson v. McLean Credit Union, 109 S. Ct. 2363 (1989).

The current posture of the case is such that a jury 
returned a verdict finding no violation of §1981 against 
plaintiff James Harvis. Two days later, on June 15, 1989, the 
Supreme Court decided Patterson. Defendants contend that 
the Patterson decision should not apply retroactively to 
Harvis’ §1981 claim. Plaintiff, however, argues precisely the 
opposite. The Patterson decision should, according to 
plaintiffs, be applied retroactively to Harvis’ claim, thus 
depriving the Court of subject matter jurisdiction on Harvis’



20a

§1981 claim. Plaintiffs contend that the Court must as a 
result disregard the jury verdict rendered on Harvis’ §1981 
claim and make its own findings of fact and conclusions of 
law with regard to Harvis’ 42 U.S.C. §2000e et seq. claim. 
Thus, the first issue before the Court is what effect the 
Patterson decision must be given regarding Harvis’ §1981 
claim.

The parties have correctly pointed out that judicial 
decisions involving statutory interpretation are generally 
applied retroactively. Chevron Oil Co. v. Huson, 404 U.S. 97 
(1971). However, under certain circumstances it is 
appropriate not to apply a decision retroactively. The 
Chevron court set forth a three-part analysis to be used in 
determining the nonretroactivity question. The court stated:

In our cases dealing with the nonretroactivity 
question, we have generally considered three 
separate factors. First, the decision to be 
applied nonretroactively must establish a new 
principal of law, either by overruling clear 
past precedent on which litigants have relied 
[citation omitted] or by deciding an issue of 
first impression whose resolution was not 
clearly foreshadowed [citation omitted].
Second, it has been stressed that "we must 
. . . weigh the merits and demerits in each 
case by looking at the prior history of the rule 
in question, its purpose and effect, and 
whether retrospective operation will further 
or retard its operation." [Citation omitted.]
Finally, we have weighed the inequity 
imposed by retroactive application, for 
"[w]here a decision of this Court could 
produce substantial inequitable results if 
applied retroactively, there is ample basis in



21a

our cases for avoiding the ’injustice or
hardship’ by a holding of nonretroactivity."
[Citation omitted.]

Id. at 106-107.

This Court has applied Patterson retroactively to cases 
pending before it. See, e.g., Haynes v. The Salvation Army, 
No. 3:89CV7115 (N.D. Ohio Aug. 22, 1989) and Hernandez 
v. AP Parts Co., No. C88-7797 (N.D. Ohio Aug. 22, 1989). 
However, those cases did not involve the factual scenario of 
the case sub judice since no jury verdict had been returned 
yet on the §1981 claims. Thus, the relevant question is 
whether the fact that a jury rendered a verdict on Harvis’ 
§1981 claim should preclude a retroactive application of 
Patterson. At least one other district court considered this 
issue in light of the Chevron nonretroactivity analysis and 
concluded that equity disfavors the retroactive application of 
Patterson to a §1981 claim tried to a verdict before a jury. 
Gillespie v. First Interstate Bank o f Wisconsin Southeast, 1989 
U.S. Dist. LEXIS 8150 (E.D. Wise. 1989). The Court agrees 
that to apply Patterson to §1981 claims tried to a verdict 
before a jury would yield an inequitable result to the 
prevailing party, whether it be plaintiff or defendant. 
Accordingly, Patterson does not apply to Harvis’ §1981 claim 
and the jury verdict on the claim survives Patterson.

When a party has a right to a jury trial on an issue 
involved in a legal claim, the court is bound by the jury’s 
determination of that issue as it relates to an accompanying 
equitable claim. In re Lewis, 845 F.2d 624, 629 (1988). 
Clearly, both 42 U.S.C. 2000e et seq. (Title VII) and 42 
U.S.C. §1981 require proof of purposeful discrimination on 
the part of a plaintiff in order to prevail. Daniels v. Board 
o f Educ. o f Ravenna City School District. 805 F.2d 203, 207 
(1986). In the case of Harvis, a jury found that intentional 
discrimination based on race was not a factor in his 
discharge. Pursuant to Lewis, this Court is bound to follow



22a

that determination with respect to Harvis’ Title VII claim 
and enter judgment in favor of defendant. The Court is 
persuaded that final judgment should be entered on Harvis’ 
claim pursuant to Rule 54(b). Harvis’ claims are dissimilar 
to those of Rivers and Davison and thus there is no just 
reason for delay in entering judgment on Harvis’ claims.

The second issue before the Court is whether the 
§1981 claims of plaintiffs should be dismissed pursuant to 
Patterson. It should be noted that the Court concludes, 
pursuant to the Chevron analysis, that Patterson should be 
applied retroactively to the §1981 claims of Rivers and 
Davison since they have not yet been tried to a jury.

Defendants [sic: Plaintiffs] Rivers and Davison have 
pled in essence that their discharges were racially motivated 
and thus violated §1981. However, in Patterson the court 
held as follows:

By its plain terms, the relevant 
provision in §1981 protects two rights: "the 
same right . . .  to make . . . contracts" and 
"the same right . . . to . . . enforce contracts."
The first of these protections extends only to 
the formation of a contract, but not to 
problems that may arise later from the 
conditions of continuing employment. The 
statute prohibits, when based on race, the 
refusal to enter into a contract with someone, 
as well as the offer to make a contract only 
on discriminatory terms. But the right to 
make contracts does not extend, as a matter 
of either logic or semantics, to conduct by the 
employer after the contract relation has been 
established, including breach of the terms of 
the contract or imposition of discriminatory 
working conditions. Such postformation 
conduct does not involve the right to make a



23a

contract, but rather implicates the 
performance of established contract 
obligations and the conditions of continuing 
employment, matters more naturally governed 
by state contract law and Title VII. See infra, 
a t __.

Patterson, 109 S. Ct. at 2372-73. Since the Patterson 
decision, this Court and others1 have concluded that §1981 
does not apply to discriminatory discharges since a discharge 
is conduct which occurs after the formation of a contract.

Finally, although plaintiffs Rivers and Davison 
contend that they were discharged in retaliation for 
exercising their grievance procedure rights, the Court is not 
persuaded that the complaint continues to state a claim 
upon which relief can be granted in light of Patterson. Other 
district courts have considered similar issues and concluded 
that claims that a plaintiff was discharged in retaliation for 
exercising rights still protected under §1981 do not state a 
claim under §1981 in light of Patterson. Dangerfield, et al. v. 
The Mission Press, 1989 U.S. Dist. LEXIS 8985 (N.D. 111. 
1989) (holding that a retaliatory discharge for filing EEOC 
complaint was no longer actionable under §1981); Hall, 1989 
U.S. Dist. LEXIS 9661 (N.D. 111. 1989) (holding that 
discharge for complaints about discrimination not 
actionable). In this case plaintiffs Rivers and Davison 
contend that they were discharged in retaliation for 
prevailing in a grievance hearing. However, such a 
"bootstrapping" of the actual breach of contract claim into a 
claim that plaintiffs were deprived of the right to enforce the 
contract was rejected in Patterson. Id. at 2376. Plaintiffs 
concede that "the claim of denial of access to those

1 See Williams v. National Railroad Passenger Corp. 1989 U.S. Dist. 
LEXIS 8859 (D. D.C. 1989); Hall v. County o f Cook, 1989 U.S. Dist. 
LEXIS 9661 (N.D. III. 1989); Haynes, supra', Hernandez, supra.



24a

[grievance and judicial] forums is not the claim here." 
Plaintiffs’ Reply at 6. Ironically, the denial of access to such 
forums is precisely what is protected under the "right to 
. . . enforce contracts" provision of §1981. Plaintiffs Rivers 
and Davison have been free to grieve or litigate their 
discharges in the appropriate forums. Thus, their complaint 
fails to allege that they have been deprived of their §1981 
rights. Accordingly, the §1981 claims of Rivers and Davison 
will be dismissed.

THEREFORE, for the foregoing reasons, good cause 
appearing, it is

ORDERED that judgment be, and hereby is, entered 
in favor of defendant on plaintiff Harvis’ 42 U.S.C. §2000e 
et seq. and 42 U.S.C. §1981 claims; and it is

FURTHER ORDERED that the 42 U.S.C. §1981 
claims of plaintiffs Rivers and Davison be, and hereby are 
DISMISSED.

/s/ John W. Potter______
United States District Judge