Greenberg, Jack; and Others, 1995, undated - 113 of 114

    <JJL

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

NO. 90-3559

MARY ANN VANCE,
Appellee/Cross-Appellant,

v.
SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, 

Appellant/Cross-Appellee

APPEAL FROM THE UNITED STATES DISTRICT COURT, 
MIDDLE DISTRICT OF FLORIDA, 

JACKSONVILLE DIVISION

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

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON 
JUDITH REED 
ERIC SCHNAPPER

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

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

Counsel for Amicus



CERTIFICATE OF INTERESTED PERSONS
Pursuant to Eleventh Circuit Rules 27-1(a) and 28-2(b), the 

undersigned counsel for Amicus Legal Defense Fund hereby adopts the 
Certificate of interest set forth in the brief filed by Mary Ann 
Vance, appellee/cross-appellant.

STATEMENT REGARDING ORAL ARGUMENT 
Amicus Legal Defense Fund hereby adopts the statement 

regarding oral argument set forth in the brief filed by Mary Ann 
Vance, appellee/cross-appellant. Amicus agrees that oral argument 
would materially assist the court in deciding the issues; however, 
Amicus does not seek to participate in oral argument before this
court.



TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS .............................. i
STATEMENT REGARDING ORAL ARGUMENT ............................  i
STATEMENT OF JURISDICTION .....................................  vii
STATEMENT OF THE I S S U E S .......................................  1
STATEMENT OF THE C A S E .......................................... 1
SUMMARY OF ARGUMENT ............................................  1
ARGUMENT .......................................................  2
II. THE PLAIN LANGUAGE OF THE CIVIL RIGHTS ACT OF

1991 REQUIRES ITS APPLICATION TO PENDING CASES
..................................................... 3

A. The Language of Sections 402(a), 402(b), and
109(c)   4

III. SECTION 101 SHOULD BE PRESUMED APPLICABLE TO
PRE-EXISTING CLAIMS ............................... 8

A. Bradley Is Controlling Precedent In This Circuit . 9
B. Bradley Reguires That Section 101 Be Applied to

Pre-Existing Claims .................................  10
C. New Remedies and Procedures for Enforcing Pre-

Existing Rights Are Presumptively Applicable to 
Pre-Existing Claims .................................  13

D. Application of the Civil Rights Act of 1991 is
Particularly Appropriate Here Because the Act 
Restores Prior Law that Has Long Governed This 
Litigation...............................................16

IV. THE INTERPRETATION OF § 1981 ANNOUNCED IN PATTERSON
SHOULD NOT BE APPLIED TO THIS CASE AFTER CONGRESS HAS
EXPRESSLY REJECTED THAT INTERPRETATION ...................  19

CONCLUSION 24



TABLE OF AUTHORITIES
Cases page
Adams v. Brinegar, 521 F.2d 129 (7th Cir. 1 9 7 5 ) .............  15
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)...........  11
American Trucking Assns. v. Smith, 110 L.Ed.2d 148 (1990) . . 22
Ayers v. Allain, 893 F.2d 732 (5th Cir. 1990),

914 F .2d 676 (5th Cir. 199 )(en banc),
cert, granted on other grounds, 113 L.Ed.2d 644 (1991) . 17

Bennett v. New Jersey, 470 U.S. 632 (1985) ....................9
Bowen v. Georgetown University Hospital, 488 U.S. 204 (1985) . 9
Bradley v. Richmond School Board, 416 U.S. 696 (1974) . . passim
Bristow v. Drake Street, Inc., 1992 U.S. Dist.

LEXIS 499 (N.D. 111. 1 9 9 2 ) ..............................  12
Brown v. General Services Administration,

507 F .2d 1300 (2d Cir. 1974), aff'd.
425 U.S. 820 (1976) ..................................... 15

Bunch v. United States, 548 F.2d 336 (9th Cir. 1977) . . . .  16
Bush v. State Industries, Inc., 599 F.2d 780 (6th Cir. 1979) 16
Campbell v. Dominick & Dominick, Inc.,

872 F . 2d 358 (11th Cir. 1 9 8 9 ) ............................  10
Carlton v. BAWW, Inc., 751 F.2d 781 (5th Cir. 1 9 8 5 ) ........... 6
Carter v. Duncan-Huggins, Ltd.,

727 F . 2d 1225 (D.C. Cir. 1 9 8 4 ) ..........................  13
Chevron Oil Co. v. Huson, 404 U.S. 97 (1971)   21
Colautti v. Franklin, 439 U.S. 379, 392 (1979).................. 6
Cornelia v. Schweiker, 728 F.2d 978 (8th Cir. 1 9 8 4 ) ............. 7
Delmay v. Paine Webber, 872 F.2d 356 (11th Cir. 1989) . . . .  10
Downs v. Blount, 170 F.15 (9th Cir. 1 9 0 9 ) .................... 12
Eastland v. Tennessee Valley Authority,

553 F. 2d 364 (5th Cir. 1 9 7 7 ) ...............................15
iii



Federal Deposit Ins. Corp. v. 232, Inc., 920 F.2d 815 (11th Cir. 
1 9 9 1 ) ................................... 10
Ferrero v. Associated Materials, Inc.,

923 F . 2d 1441 (11th Cir. 1 9 9 1 ) .............................14
Freeborn v. Smith, 69 U.S. 160 (1865)........................  12
Gersman v. Group Health Ass'n., ___ U.S. ___, 1991 U.S.

LEXIS 655, No. 91-724 (Jan. 27, 1992) ....................3
Gillespie & EEOC v. Norwest Corp., Civil Action

85-C—1318/85-C-1393, (E.D. Wise. Feb. 14, 1992) . . . .  19
Goodman v. Lukens Steel, 482 U.S. 656 (1987) ...............  23
Graham v. Bodine Electric Co., 57 F.E.P.

Cases 1428 (N.D. 1 9 9 2 ) ................................. 6,.19
Great American Tool and Mfg. Co. v. Adolph Coors Co.,

Civil Action 91-B-2057 (D. Colo. Jan. 16, 1992) . . . .  19
Grove City College v. Bell, 465 U.S. 555 (1984).......... 16
Hallowell v. Commons, 239 U.S. 506 (1916).................... 15
Hamilton v. Rodgers, 791 F.2d 439 (5th Cir. 1 9 8 6 ) ...........  13
Hansel v. Public Service Co., 57 F.E.P.

Cases 858 (D. Colo. 1991)  19
Hastings v. Earth Satellite Corp., 628 F.2d 85

(D.C. Cir. 1980), cert, denied, 449 U.S. 905 (1980) . . .  7
Holland v. First Virginia Banks, U.S. , 1991 U.S.

LEXIS 1266, No. 91-974 (Feb. 24, 1992)   3
In re Amatex Corp., 755 F.2d 1034 (3d Cir. 1985)  6
In re Grey, 29 B.R. 286 (D. Kan. 1983)   17
In re Salem Mortg. Co., 783 F.2d 626 (6th Cir. 1986)   6
James B. Beam Distilling Co. v. Georgia,

115 L . Ed. 2d 481 (1991)............................... 21, 22
Kaiser Aluminum & Chemical Co. v. Bonjorno,

110 S.Ct. 1570 (1990)  9

Erebia v. Chrysler Plastic Products Corp., 772 F.2d 1250 (6th Cir.
1985), cert, denied, 106 S.Ct. 1197 (1986) .................. 13

iv



King v. Shelby Medical Center,
779 F. Supp. 157 (N.D.Ala. 1 9 9 1 ) ........................ 19

Koger v. Ball, 497 F.2d 702 (4th Cir. 1 9 7 4 ) .................  15
Laubie v. Sonesta International Hotel Corp.,

752 F . 2d 165 (5th Cir. 1 9 8 5 ) ............................  17
Leake v. Long Island Jewish Medical Center,

869 F . 2d 130 (2d Cir. 1989) ............................  17
Long v. Carr (N.D. Ala., No. 1:88-CV-263-RCF),

Order, Jan. 31, 1992 ..................................... 6
Lussier v. Dugger, 904 F.2d 661 (11th Cir. 1990) ......... 2, 17
Lytle v. Household Mfg. Inc., 108 L.Ed.2d 504 (1990) ......... 4
Mahroom v. Hook, 563 F.2d 1369 (9th Cir. 1977),

cert, denied, 436 U.S 904 (1978)........................  15
Mackey v. Lanier Collections Agency & Serv., Inc.,

486 U.S. 825 (1988)....................................... 6
Matter of Reynolds, 726 F.2d 1420, 1423 (9th Cir. 1984) . . . .  7
McGinnis v. Ingrain Equipment Co. Inc.,

918 F. 2d 1491 (11th Cir. 1 9 9 0 ) ............................ 3
Mobile v. Bolden, 446 U.S. 55 (1980) ........................  17
Mojica v. Gannett Co., 779 F. Supp. 94 (N.D. 111. 1991) . . . .  6
Mrs W. v. Tirozzi, 832 F.2d 748 (2d Cir. 1987) .............  17
Nazaire v. Trans World Airlines, Inc.,

807 F . 2d 1372 (7th Cir. 1 9 8 6 ) ............................  13
Occidental Chemical v. Int'l Chem. Wrkrs. Union,

853 F . 2d 1310 (6th Cir. 1988) ..........................  23
Patterson v. McLean Credit Union,

491 U.S. 164 (1989) ................................. passim
Place v. Weinberger, 497 F.2d 412 (6th Cir. 1974),

vacated 426 U.S. 932 (1976) ............................  15
Russello v. United States, 464 U.S. 16 (1983) .................. 5
Saltarikos v. Charter Mfg. Co., Inc.,

57 F.E.P. Cases 1225 (E.D. Wise. 1992) .................. 19

v



Sanders v. Culinary Workers Local No. 226,
CV-S-89-735 (D. Nev. Feb 11, 1 9 9 2 ) ......................  19

Sherman v. Burke Contracting, Inc.,
891 F . 2d 1527 (11th Cir. 1 9 9 0 ) ..........................  20

Smith V. Robinson, 468 U.S. 992 (1984) ......................  17
Sperling v. United States, 515 F.2d 465 (3d Cir.),

cert, denied, 426 U.S. 919 (1975) ......................  15
Standard Oil of Cal. v. United States, 429 U.S. 17 (1976) . . 21
Stender v. Lucky Stores, Inc.,

57 F.E.P. Cases 1445 (N.D. Cal. 1 9 9 2 ) ...............  6, 12
Thompson v. Sawyer, 678 F.2d 257 (D.C. Cir. 1982) . . .  8, 15, 16
Thorpe v. Housing Authority of Durham, 393 U.S. 268 (1969) . 10
United States v. Fernandez-Toledo,

745 F . 2d 703 (11th Cir. 1985) ..........................  14
United States v. Kairys, 782 F.2d 1374 (7th Cir.),

cert, denied, 476 U.S. 1153 (1986)......................  6
United States v. Marengo County Comm'n,

731 F.2d 1546 (11th Cir.) cert, denied,
469 U.S. 976 (1984) .....................................  17

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

942 F . 2d 1555 (11th Cir. 1 9 9 1 ) ............... 1, 9, 10, 14
United States v. The Schooner Peggy,

5 U.S. 103 (1 Cranch) (1801)............................ 10
Van Meter v. Barr, 57 F.E.P. Cases 769 (D.D.C. 1991) . . . .  19
Walt Disney Productions v. Air Pirates,

581 F.2d 751 (9th Cir. 1978) cert, denied sub. nom.
O'Neil v. Walt Disney Prod., 439 U.S. 1132 (1979) . . . .  7

Weahkee v. Powell, 532 F.2d 727 (10th Cir. 1976) ...........  15
Weaver v. Casa Gallardo, Inc., 922 F.2d 1515 (11th Cir. 1991) . 3
Wilmington v. J.I. Case Co., 793 F.2d 909 (8th Cir. 1986) . . 13
Womack v. Lynn, 504 F.2d 267 (D.C. Cir. 1974) .............  15

vi



Wright v. Director, FEMA, 913 F.2d 1566 (11th Cir. 1990) . . 9

Statutes
42 U.S.C. § 1 9 8 1 ..................................................2
1991 Civil Rights Act .....................................  passim
Civil Rights Act § 1 0 1 ................................... passim
Civil Rights Act § 101(b) ..................................... 2
Civil Rights Act § 1 0 9 ( c ) ................................ 4, 5, 6, 7
Civil Rights Act § 402 ( a ) ................................ 4, 5, 7, 8
Civil Rights Act § 402 ( b ) ................................4, 5, 6, 7
Executive Order 11246 .......................................... 13
Title II of the 1964 Civil Rights A c t ........................ 11
Title VII of the 1964 Civil Rights A c t ....................passim
Legislative Materials
137 Cong. Rec. S 15500 (Daily ed. Oct. 30, 1991)   18
137 Cong. Rec. S 15503 (daily ed. Oct. 30, 1991)  3
137 Cong. Rec. S2261 (Daily ed. Feb. 22, 1991)   18
137 Cong. Rec. S15233-34 (Daily ed. Oct. 25, 1991)   18
137 Cong. Rec. S15329 (Daily ed. Oct. 16, 1 9 9 0 ) ............  18
Cong. Rec. S 16465 (daily ed. Oct. 24, 1990) ...............  18
Other Authorities 
C. Endlich, Commentary on the

Interpretation of Statutes (1888)   12

V l l



STATEMENT OF JURISDICTION
Amicus Legal Defense Fund hereby adopts 

Jurisdiction set forth in the brief filed by 
appellee/cross-appellant.

the Statement of 
Mary Ann Vance,

vm



STATEMENT OF THE ISSUES
Amicus Legal Defense Fund hereby adopts the Statement of 

Issues set forth in the brief filed by Mary Ann Vance, 
appellee/cross-appellant.

STATEMENT OF THE CASE
Amicus Legal Defense Fund hereby adopts the Statement of The 

Case set forth in the brief filed by Mary Ann Vance, 
appellee/cross-appellant.

SUMMARY OF ARGUMENT
On November 21, 1991, Congress adopted the 1991 Civil Rights 

Act. Section 101 of the Act was enacted for the express purpose of 
overturning the decision in Patterson v. McLean Credit Union. 491 
U.S. 164 (1989). The decision in Bradley v. Richmond School Board. 
416 U.S. 696 (1974), directs that new legislation be applied to
pre-existing claims unless such application would result in 
"manifest injustice . . .  or there is statutory direction or 
legislative history to the contrary." 416 U.S. at 711; United 
States v. Peppertree Apartments. 942 F.2d 1555 (11th Cir. 1991).
The plain language of the Civil Rights Act reguires its 
application, and the legislative history, while not clear and 
unambiguous, does not reguire a different result. Application of 
the Bradley test to the facts of the instant case demonstrate that 
no injustice would be caused by application of section 101 to the 
instant case.

1



Where Congress adopts legislation to restore legal principles 
that prevailed until a Supreme Court decision to the contrary, that 
legislation should be presumed applicable to pending cases. See, 
e.g., Lussier v. Dugger. 904 F.2d 661 (11th Cir. 1990) (applying 
Civil Rights Restoration Act to a pending case). Because Congress 
has now disavowed the "principles" and "understanding" set forth in 
Patterson. so that retroactive application of the repudiated 
decision is no longer appropriate.

ARGUMENT
I. INTRODUCTION

When the discriminatory acts at issue in this case originally 
occurred, that discrimination, under then prevailing case law, was 
clearly actionable under 42 U.S.C. § 1981. That caselaw was still 
controlling in early 1986, when this action was filed, and on 
April 1987, when this case was first tried and a jury found 
Southern Bell liable for discrimination.

Subsequently, in June 1989, the Supreme Court decided 
Patterson v. McLean Credit Union. 491 U.S. 164 (1989), which 
substantially limited the types of employment discrimination that 
could be redressed under section 1981. On November 21, 1991,
Congress adopted the 1991 Civil Rights Act. Section 101 of the Act 
was enacted for the express purpose of overturning the Patterson 
decision. Section 101 amends section 1981 to add a subsection (b) 
as follows:

(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.



137 Cong. Rec. S 15503 (daily ed. Oct. 30, 1991) . We urge that
section 101 applies to pending cases, and is thus dispositive of
appellant's Patterson argument. Second, we maintain that
retroactive application of Patterson itself to a case arising
before Patterson, such as this one, is no longer appropriate.
II. THE PLAIN LANGUAGE OF THE CIVIL RIGHTS ACT OF 1991

REQUIRES ITS APPLICATION TO PENDING CASES
Southern Bell Telephone and Telegraph Company, defendant and 

appellant/cross-appellee ("Southern Bell"), cites the general rule 
that "an appellate court should apply the law in effect at the time 
it renders its decision." McGinnis v. Ingram Equipment Co. Inc.. 
918 F .2d 1491, 1495 (11th Cir. 1990). Br. at 35. We submit that
application of this rule to the instant case requires application 
of the Civil Rights Act to Vance.

The plain language of the statute governs the question of 
which provisions apply to pre-existing claims, i,e.. to claims 
occurring before November 21, 1991. Two provisions expressly
exempt from coverage certain specified pre-existing claims. The 
necessary implication of these provisions is that all other pre­
existing claims, including any claims under section 101, are 
covered by the Act.1

The Supreme Court has already indicated that the 1991 Act 
may apply to pending cases, See Gersman v. Group Health Ass'n. .
U.S. ___ , 1991 U.S. LEXIS 655, No. 91-724 (Jan. 27, 1992); Holland
v. First Virginia Banks. ___ U.S.___, 1991 U.S. LEXIS 1266, No. 91-
974 (February 24, 1992). The Supreme Court in Gersman and Holland 
vacated decisions of the District of Columbia and Fourth Circuits, 
respectively, and remanded for further consideration in light of 
the Civil Rights Act of 1991. Cf. Weaver v. Casa Gallardo. Inc.. 
922 F.2d 1515, 1519 (11th Cir. 1991) (finding support for
proposition that Patterson applied in fact that Supreme Court in

3



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

The Act contains three specific provisions governing the 
applicability of its various sections to pre-existing claims. 
First, section 109, prohibiting discrimination against certain 
Americans working abroad, is expressly limited to acts of 
discrimination occurring after November 21, 1991:

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

Second, section 402(b) exempts from all provisions of the Act 
"certain . . . cases" involving claims2 that already existed prior 
to November 21, 1991:

(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.

Third, the applicability of the Act to pre-existing claims not 
governed by section 109(c) or 402(b) is controlled by section 
402(a):

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

remanding Lytle v. Household Mfq. Inc.. 108 L.Ed.2d 504 (1990)
indicated lower court should consider effect of Patterson^.

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

4



Together these three sections construct a careful and 
deliberate scheme in which Congress dealt expressly with the issue 
of which pre-existing claims should and should not be covered by 
the Act. Congress clearly decided there were two types of pre­
existing claims to which the Act should not be applied —  pre­
existing claims involving allegedly discriminatory conduct 
occurring outside the United States, and certain very old disparate 
impact claims. Equally clearly, however, Congress made a 
deliberate decision to include under the Act those pre-existing 
claims that were not exempted by sections 109(c) or 402(b), such as 
intentionally discriminatory conduct occurring within the United 
States, or disparate impact cases filed after March 1, 1975.

The conclusion that section 402(a) contemplates application of 
the Act to pre-existing claims not exempted by sections 109(c) and 
402(b) is dictated by several well established canons of con­
struction. First,

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

Russello v. United States. 464 U.S. 16, 23 (1983) (quoting United 
States v. Wong Kim Bo. 472 F.2d 720, 722 (5th Cir. 1982)). The 
decision to exempt from section 109, and from that section alone, 
"conduct occurring before the date of enactment", can only be read 
as a decision not to place any such limitations on the other 
provisions of the Act.

5



Second, if the general language of section 402(a) were 
interpreted to exclude application of the statute to any existing 
claim, sections 109(c) and 402(b) would be utterly redundant.3 
Several decisions applying the Civil Rights Act to pre-existing 
claims have relied on the express exclusion of such claims in 
sections 109 and 402(b).4

The courts of appeals have repeatedly held that where Congress 
has expressly limited only certain parts of a law to post-Act 
claims, Congress must have intended that the balance of the statute 
would apply to pre-existing claims.5 Where Congress intended that 
an entire statute —  rather than just specific sections —  be

See Colautti v. Franklin. 439 U.S. 379, 392 (1979) 
(reading a statute to render a section "redundant or largely 
superfluous" violates "the elementary canon of construction that a 
statute should be interpreted so as not to render one part 
inoperative"); Mackey v, Lanier Collections Agency & Serv.. Inc.. 
486 U.S. 825, 837 (1988) (same).

Mojica v. Gannett Co.. 779 F. Supp. 94 (N.D. 111. 1991); 
Stender v. Lucky Stores. Inc.. 57 F.E.P. Cases 1445, 1446 (N.D. 
Cal. 1992); Graham v. Bodine Electric Co.. 57 F.E.P. Cases 1428, 
1429 (N.D. 111. 1992); Long v. Carr. (N.D. Ala., No. l:88-CV-263- 
RCF), Order, Jan. 31, 1992, p. 5 n. 4.

In re Amatex Corp. . 755 F.2d 1034, 1037 (3d Cir. 1985) 
("Since none of these statutory exceptions are applicable here, we 
conclude that the 1984 Act controls" the pre-existing claim) ; In re 
Salem Mortg. Co.. 783 F.2d 626, 631 n.14 (6th Cir. 1986) (express 
limitation as to only certain subsections "implies that, except for 
those subsections specifically excepted . . . the provisions . . . 
apply to pending cases,"); United States v. Kairvs. 782 F.2d 1374, 
1382 and n.13 (7th Cir.), cert, denied. 476 U.S. 1153 (1986); 
Matter of Busick. 831 F.2d 745, 748 (7th Cir. 1987); Carlton v. 
BAWW, Inc.. 751 F .2d 781, 787 n.6 (5th Cir. 1985).

6



inapplicable to existing claims, it has not hesitated to expressly 
so provide.6

The provisions of sections 109(c) and 402(b) show that 
Congress knew full well what language to use if it wished to exempt 
a category of pre-existing claims from the Act, and that Congress 
deliberately utilized such explicit language where, and only where, 
it wanted to create an exemption.7 The provisions of section 
402(a) control "except as otherwise specifically provided." 
(Emphasis added). This language makes clear that the specific 
provisions of section 109(c) and 402(b) are exceptions to, and thus 
necessarily different from, the otherwise applicable general rule 
under sections 402(a). Similarly, section 402(b), where relevant, 
controls "notwithstanding any other provision of the Act."

Section 402(a) provides that "the amendments made by this Act 
shall take effect upon enactment." (Emphasis added).8 Most of

See. e.g.. Walt Disney Productions v. Air Pirates. 581 
F.2d 751, 754 (9th Cir. 1978) cert, denied sub, nom. 0 /Neil v. Walt 
Disney Prod.. 439 U.S. 1132 (1979).

See Hastings v. Earth Satellite Corp. . 628 F.2d 85, 92-93 
(D.C. Cir. 1980), cert, denied. 449 U.S. 905 (1980) ("the absence 
of a provision prohibiting retroactivity is significant" because 
other amendments to the same statute had been expressly 
inapplicable to pre-act claims) (emphasis in original); Cornelia v. 
Schweiker, 728 F.2d 978, 988 (8th Cir. 1984) ("Congress could have 
excluded pre-effective date fees had it chosen to do so. It has 
not done so and we will not imply such a limitation.")

Matter of Reynolds. 726 F.2d 1420, 1423 (9th Cir. 1984):
While not dispositive on the issue before us, 
the fact that Congress expressed its intention 
that the statute take effect upon enactment is 
some indication that it believed that 
application of its provisions was urgent. We 
certainly cannot construe this expression of

7



"the amendments made by this Act" are entirely remedial. They do 
not render illegal previously lawful practices, but provide (or 
restore) certain procedures, standards and remedies which the 
courts are to use in resolving and redressing claims. The 
amendments incorporating these remedial provisions can "take effect 
upon enactment" in a meaningful way only if they apply to pre­
existing claims.

Even more incongruously, if section 402(a) were construed to
exempt all pre-existing claims, the law generally in "effect" in
most cases until the mid-1990's would be not the Civil Rights Act
of 1991, but the very Supreme Court decisions that Congress
overwhelmingly voted to overturn. When Congress provided in
section 402(a) that certain amendments would "take effect upon
enactment", it cannot have meant that those very decisions would as
a practical matter remain in effect until the end of the century.
III. SECTION 101 SHOULD BE PRESUMED APPLICABLE TO

PRE-EXISTING CLAIMS
We urge that the language of the Civil Rights Act demonstrates 

that Congress intended that section 101 apply to pre-existing 
claims. Moreover, established law regarding application of 
statutes to pending cases requires the same result. The decision 
in Bradley v. Richmond School Board. 416 U.S. 696 (1974), directs 
that new legislation be applied to pre-existing claims unless such

congressional concern as a direction that the 
law should not be applied to pending matters.

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

8



No suchapplication would result in "manifest injustice." 
injustice would be caused by application of section 101 to the 
instant case.

A. Bradley Is Controlling Precedent In This 
Circuit

Bradley has been widely accepted and applied since it was
handed down in 1979.9 The Eleventh Circuit most recently affirmed
the vitality of Bradley in United States v. Peppertree Apartments.
942 F.2d 1555 (11th Cir. 1991),

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

942 F .2d at 1561 n.3. The Eleventh Circuit declined to rehear the
cases en banc. ____  F.2d ____  (11th Cir. 1991), cert, pending.
____ U.S.L.W. ____  .10 The party in Peppertree urging application
of a new law to a pre-existing claim was the United States. Since

In 1990, however, Justice Scalia authored a concurring 
opinion in Kaiser Aluminum & Chemical Co. v. Boniorno. 110 S.Ct. 
1570, 108 L.Ed.2d 842 (1990), in which he urged that Bradley was
bad law and should be overruled. Although no other member of the 
Court joined Justice Scalia's opinion, he argued that Bradley was 
inconsistent with the Court's post-1974 decisions in Bowen v. 
Georgetown University Hospital. 488 U.S. 204 (1985) and Bennett v. 
New Jersey. 470 U.S. 632 (1985).

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

9



Bowen this circuit has in at least four instances relied on Bradley
in holding a new law applicable to a pre-existing claim.11

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

In Bradley v. Richmond School Board. 416 U.S. 696 (1974), the
Court unanimously established

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

416 U.S. at 711. The Court went on to "reject the contention that 
a change in the law is to be given effect in a pending case only 
where that is the clear and stated intention of the legislature." 
416 U.S. at 715. The Court observed that this rule of construction 
had long been applied by decisions reaching back into the 
nineteenth century,12 most recently in Thorpe v. Housing Authority 
of Durham. 393 U.S. 268 (1969).

Bradley establishes a three part test for determining whether 
the application of section 101 to a pending case or other pre­
existing claim would be "manifestly unjust":

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

416 U.S. at 717.

U.S. v. Peppertree Apartments. 942 F.2d 1555 (11th Cir. 
1991); Federal Deposit Ins. Corp. v. 232, Inc.. 920 F.2d 815 (11th 
Cir. 1991); Delmay v. Paine Webber. 872 F.2d 356, 357-58 (11th Cir. 
1989); Campbell v. Dominick & Dominick. Inc.. 872 F.2d 358, 360-61 
(11th Cir. 1989) .

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

10



1. The first of the Bradley standards poses no problem for
the application of the Civil Rights Act to existing claims. The 
central distinction made by Bradley in this regard is between "mere 
private cases between individuals", in which application of a new 
law to pre-existing claims may be inappropriate, and litigation 
involving matters of "great national concern", where application of 
a new statute to pre-existing claims is presumed absent clear 
congressional intent to the contrary. 416 U.S. at 718, 719.13 The 
Court in Bradley identified two specific illustrations of matters 
of public, rather than purely private, concern —  school 
desegregation, the issue in Bradley itself, and the public 
accommodations provisions of Title II of the 1964 Civil Rights Act. 
In Title II litigation, the Court observed, the plaintiff functions 
"as a private attorney general, vindicating a policy that Congress 
considered of the highest priority." 416 U.S. at 718-19. The 
Court has characterized Title VII as of similarly vital public 
importance. Albemarle Paper Co. v. Moody. 422 U.S. 405, 415
(1975) .

2. With regard to the second Bradley factor, the nature of 
the rights at stake, the Court explained that manifest injustice

13 The question in Bradley concerned the applicability of a 
1972 statute authorizing awards of counsel fees in school 
desegregation cases. The plaintiffs had sued in 1961, and had 
obtained a series of injunctions between 1964 and 1972. The legal 
work for which counsel fees were sought had occurred prior to the 
effective date of the 1972 law. The court of appeals denied a fee 
award, asserting that statutes should not be construed to apply to 
conduct occurring before their effective date unless Congress had 
clearly mandated such application. The Supreme Court unanimously 
overturned that interpretation of the statute.

11



would result if the rights affected adversely by application of a 
new law were vested rights:

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

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

Section 101 does not deprive any party of any accrued claim,
cause of action, or other vested right. As applied in this case,
section 1981 and section 101 are essentially remedial. The
discrimination alleged by Vance was at all times unlawful under
Title VII. The practical significance of section 1981 is that it
provides only an additional remedy for the intentional
discrimination also forbidden by Title VII. But such an
augmentation of remedies affects no vested right, because "one
cannot have a vested right in a state of the law which left the
injured party without, or with only a defective remedy." Ferrero
v. Associated Materials. Inc.. 923 F.2d 1441, 1446 (11th Cir.
1991) ,14

See also Bristow v. Drake Street. Inc.. 1992 U.S. Dist. 
LEXIS 499 (N.D. 111. 1992) (Memorandum Opinion and Order, p. 
3)("Infringement upon 'matured' rights is not a concern here 
because '[T[here is no vested right in remedies'"); Stender v. 
Lucky Stores. Inc.. 57 F.E.P. Cases at 1449 ("The court rejects 
defendant's argument that by expanding defendant's liability for 
intentional discrimination the Civil Rights Act has infringed upon 
its unconditional rights. Defendant has no unconditional right to 
limit plaintiffs to a particular type of remedy"); Freeborn v. 
Smith. 69 U.S. 160, 175 (1865) ("there is no such thing as a vested 
right to do wrong"); Downs v. Blount. 170 F.15, 21 (9th Cir. 
1909)("[T]here can be 'no vested right to do wrong'"); C. Endlich, 
Commentary on the Interpretation of Statutes. 386-7 (1888) ("the 
defaulter can have no vested right in a state of the law which left

12



3. With regard to the third Bradley factor, the impact of 
the change in the law, the Court explained that it was concerned 
lest "new and unanticipated obligations ... be imposed." 416 U.S. 
at 720.

The reasoning of Bradley is equally applicable here. 
Application of section 101 to this case would not render unlawful 
conduct lawful when it occurred. On the contrary, Southern Bell 
certainly knew at the time of the alleged discrimination that 
racial discrimination in employment was unlawful. Because it has 
more than fifteen employees, Southern Bell has at all relevant 
times been covered by Title VII. At the time when this action 
arose, discrimination of the type alleged was clearly unlawful 
under section 1981, Title VII, and Executive Order 11246.15

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

The lower courts have uniformly applied a presumption favoring 
application to pre-Act claims in the case of statutes that merely 
affect the procedures, remedies and other methods of enforcing 
established rights. Since section 1981 merely provides an

the injured party without, or with only a defective remedy ....")

At the time Patterson was decided lower federal courts 
that had considered the issue unanimously concluded that 
discrimination in terms and conditions of employment was actionable 
under section 1981. Nazaire v. Trans World Airlines. Inc.. 807 
F .2d 1372, 1380 (7th Cir. 1986); Wilmington v. J.I, Case Co.. 793 
F .2d 909 (8th Cir. 1986); Hamilton v. Rodgers. 791 F.2d 439, 442 
(5th Cir. 1986); Erebia v. Chrysler Plastic Products Corp.. 772 
F .2d 1250, 1254-57 (6th Cir. 1985), cert, denied. 106 S.Ct. 1197 
(1986); Carter v. Duncan-Huggins, Ltd.. 727 F.2d 1225, 1233 (D.C. Cir. 1984) .

13



additional remedy for conduct already forbidden by Title VII, that 
presumption applies to section 101. Recognition of this 
presumption regarding procedural and remedial legislation is well 
established in this circuit.16

The most noteworthy instance in which the courts applied this 
distinction between conduct-regulating and remedial law concerned 
the 1972 amendments to Title VII. Prior to 1972 Title VII did not 
apply to federal employees. Section 717 of the 1972 legislation 
forbad federal agencies to discriminate on the basis of race, etc., 
and authorized victims of such discrimination to bring suit in 
federal court for back pay, injunctive relief, and counsel fees. 
The 1972 amendment was widely interpreted to apply to acts of 
discrimination occurring prior to the effective date of the 
statute. The courts reasoned that although Title VII itself did 
not forbid federal employment discrimination prior to March 24, 
1972, such discrimination had in fact been illegal before 1972 
under the Constitution, an earlier statute and several executive 
orders.

Ferrero v. Associated Materials Inc.. 923 F.2d 1441, 1445 
(11th Cir. 1991) (separate rule of construction favoring 
application to pending cases of "procedural statutes and statutes 
that affect only a litigant's remedy"); United States v. Peppertree 
Apartments. 942 F.2d 1555, 1560-61 (11th Cir. 1991) ("Statutory 
changes that are remedial in nature apply retroactively.... The 
change in the statute . . . does not impose a new obligation upon 
[the defendant]. Instead, it imposes and additional remedy on 
already proscribed conduct.... '[T]he statute imposed no new 
obligation; it merely reinforced an existing one'"); United States 
v. Fernandez-Toledo. 745 F.2d 703, 705 (11th Cir. 1985) 
(presumption in favor of applying laws "that affect only procedure 
or remedy").

14



The circuit courts regarded the application of Title VII to 
federal agencies as purely remedial because agency discrimination 
was already forbidden by other laws.17 Several of these decisions 
observed that insofar as it added to the available method of 
enforcement, a right to file suit in federal court, section 717 was 
merely providing a new tribunal for redressing existing rights.18 
The Supreme Court approved this interpretation of the 1972 Title 
VII amendment in Brown v. General Services Administration. 425 U.S. 
820, 824 n.4 (1976).

The same presumption in favor of applying new remedies to pre­
existing claims was applied in a variety of other contexts. In 
1974 the ADEA was amended to cover federal employees, who had 
previously been outside the protection of the Act. For many years 
before 1974, however, age discrimination in federal employment had

17 Roger V. Ball. 497 F.2d 702, 705-07 (4th Cir. 1974). In 
Womack v. Lynn, 504 F.2d 267, 269 (D.C. Cir. 1974) the court noted 
that Section 717(c) was "merely a procedural statute ... 
affect[ing] the remedies available to federal employees .... 
[whose] right to be free of such discrimination has been assured 
for years." (Emphasis in original). See also, Sperling v. United 
States, 515 F.2d 465, 473-74 (3d Cir.), cert, denied. 426 U.S. 919 
(1975); Adams v. Brineqar. 521 F.2d 129, 131-32 (7th Cir. 1975); 
Thompson v. Sawyer. 678 F.2d 257, 287-88 (D.C. Cir. 1982); Mahroom 
v . Hook. 563 F.2d 1369, 1373 (9th Cir. 1977) (guoting Roger and 
Womack). cert, denied. 436 U.S. 904 (1978); Eastland v. Tennessee 
Valley Authority. 553 F.2d 364, 367 n.5 (5th Cir. 1977); Weahkee v. 
Powell. 532 F . 2d 727, 729 (10th Cir. 1976); Brown v. General 
Services Administration. 507 F.2d 1300, 1305-06 (2d Cir. 1974), 
aff'd 425 U.S. 820 (1976) (endorsing reasoning of Womack and 
Roger); but see Place v. Weinberger. 497 F.2d 412 (6th Cir. 1974), 
vacated 426 U.S. 932 (1976).

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

15



been forbidden by Executive Orders and Civil Service Commission
regulations. Accordingly, the courts applied the 1974 ADEA 
amendment to pre-Act claims. Bunch v. United States. 548 F.2d 336, 
339 (9th Cir. 1977). Similarly, the Fair Labor Standards Act, 
which prohibits certain forms of sex based salary discrimination, 
was amended in 1974 so that for the first time it applied to 
federal agencies.19 Similarly, the FLSA was amended in 1977 to 
provide a cause of action for employees of private or public 
employers who were retaliated against for seeking to enforce the 
statute. Such retaliation by employers had long been illegal, but 
the prohibition was not until 1977 enforceable by a private action. 
This amendment too was applied to existing claims.20

D. Application of the Civil Rights Act of 1991 is 
Particularly Appropriate Here Because the Act 
Restores Prior Law that Has Long Governed This 
Litigation.

A number of circuit courts, including this court, have held 
that where Congress adopts legislation to restore legal principles 
that prevailed until a Supreme Court decision to the contrary, that 
legislation should be presumed applicable to pending cases. For 
example, the Civil Rights Restoration Act of 1987, which reversed 
the Supreme Court's erroneous interpretation in Grove City College 
v . Bell , 465 U.S. 555 (1984), of Title IX of the Education

The D.C. Circuit held the 1974 amendment applicable to 
all pending claims against the General Printing Office, noting that 
a specific Executive Order forbidding discrimination at the GPO had 
been issued in 1969. Thompson v. Sawyer. 678 F.2d 257 (D.C. Cir. 1982) .

Bush v. State Industries. Inc.. 599 F.2d 780, 786 (6thCir. 1979) .
16



Amendments of 1972, has repeatedly been applied to cases that were 
pending when the Act passed notwithstanding the absence of any 
statutory language specifying whether it should so apply.

In Lussier v. Dugger. 904 F.2d 661 (11th Cir. 1990), this 
court applied the Civil Rights Restoration Act to a pending case 
because the statute "does not change prior legislation, but merely 
corrects prior judicial interpretations which the Congress believed 
'unduly narrowed the civil rights laws" 904 F.2d at 
688. In United States v. Marengo County Comm'n. 731 F.2d 1546, 
1553 (11th Cir.) cert, denied. 469 U.S. 976 (1984), the United 
States successfully urged that the 1982 amendment to section 2 of 
the Voting Rights Act correcting Mobile v. Bolden. 446 U.S. 55 
(1980), be applied to pending cases.21 Similarly, state statutes 
intended to restore prior law have been construed as applicable to 
pre-existing claims. In re Grey. 29 B.R. 286, 289 (D. Kan. 1983); 
Laubie v. Sonesta International Hotel Coro.. 752 F.2d 165, 167-68 
(5th Cir. 1985).

This interpretation of restorative legislation is a sensible 
assessment of congressional intent. The purpose of such 
legislation to return the law to where it was prior to the 
disapproved judicial interpretation. If such legislation were

21 See also, Avers v. Allain. 893 F.2d 732, 754-55 and n. 116 
(5th Cir. 1990), 914 F.2d 676 (5th Cir. 199_) (en banc), cert, 
granted on other grounds. 113 L.Ed.2d 644 (1991); Mrs W. v. 
Tirozzi. 832 F.2d 748 (2d Cir. 1987) (applying a 1986 amendment to 
the Education of the Handicapped Act overturning the Supreme Court 
decision in Smith v. Robinson. 468 U.S. 992 (1984); Leake v. Long 
Island Jewish Medical Center. 869 F.2d 130 (2d Cir. 1989) 
(application, on similar grounds, of the Civil Rights Restoration 
Act to pre-existing claims.

17



applied only prospectively, the law —  for numerous litigants and 
for perhaps years into the future —  would not be "restored” at 
all.

Section 101 is the paradigm of restorative legislation. It was 
adopted for the express purpose of overturning the Supreme Court 
decision in Patterson. in order to restore the interpretation of 
section 1981 that had prevailed until that 1989 decision.22

The Senate debates on the legislation make clear that there 
was a broad consensus on at least one aspect of the legislation —  
that the Patterson case be overruled.23 Senator Hatch went even 
further, when he announced, after Brenda Patterson testified in 
Congress, that the bill "would take care of Brenda Patterson. We 
are prepared to do that right now. We are for overruling the 
Patterson versus McLean case." Cong. Rec. S 16465 (Daily ed. Oct. 
24, 1990) (emphasis added). Legislation that applied prospectively

See 137 Cong. Rec. S15500 (Daily ed. Oct. 30, 1991) , 
where Senator Danforth stated: "[W]hat was wrong in 1989 was not 
simply that the Supreme Court wrongly decided a half dozen cases, 
some of them dealing with technical issues such as how to define 
business necessity. What was wrong was that in the year 1989 the 
Supreme Court chose to turn the clock back, and that can never 
happen in civil rights; it can never be allowed to happen." 137 
Cong. Rec. S15233-34 (Daily ed. Oct. 25, 1991) (Statement of Sen. 
Kennedy) (discussing how the bill "overrules", "restores", and 
"reverses" the Supreme Court's decisions).

"There is one aspect of this bill everybody agrees with 
. . . and that is the overrule of . . . the Patterson versus McLean 
case." 137 Cong. Rec. S15329 (Daily ed. Oct. 16, 1990) (Statement 
of Sen. Hatch); "In agreement with the administration, Senator 
Kennedy, and the civil rights groups, my bill would also overturn 
. . . Patterson versus McLean Credit Union." 137 Cong. Rec. S2261 
(Daily ed. Feb. 22, 1991) (Statement of Sen. Simpson).

18



only could not "take care of" a plaintiff in a pending case, as 
Senator Hatch promised this legislation would.

Where Congress overrules judicial decisions through 
legislation, the new legislation must apply to pending cases in 
order to effectuate the most basic purpose of the law.24 In 
enacting the 1991 Civil Rights Act to restore prior law, Congress 
did not intend courts and litigants to continue for the next decade 
or longer to interpret and to apply the repudiated Supreme Court 
decisions to some cases, while applying the 1991 Civil Rights Act 
to others.

See, King v. Shelby Medical Center. 779 F. Supp. 157 
(N.D.Ala. 1991) (allowing plaintiffs to amend their complaints 
under the 1991 Act to raise § 1981 not previously asserted) ; 
Sanders v. Culinary Workers Local No. 226. slip op. at 6, Civil 
Action CV-S-89-735 (D. Nev. Feb 11, 1992); Graham. 57 F.E.P. Cases 
at 1430; Stender. 57 F.E.P. Cases at 1447-48; Saltarikos v. Charter 
Mfg. Co. , Inc. . 57 F.E.P. Cases 1225 (E.D. Wise. Jan. 8, 1992); 
Gillespie & EEOC v. Norwest Coro.. Civil Action 85-C-1318/85-C- 
1393, slip op. at 3 (E.D. Wise. Feb. 14, 1992). Courts have denied 
defendants' motions to dismiss or otherwise restrict plaintiffs' 
claims under Patterson. e.g.. Mojica v. Gannett. 779 F. Supp. 94 
(N.D.I11. 1991); Graham. 57 F.E.P. Cases at 1429, 1431; Sanders, 
slip op. at 7; Great American Tool and Mfg. Co. v. Adolph Coors 
Co. . Civil Action 91-B-2057, slip op. at 5 (D. Colo. Jan. 16, 
1992); Stender. 57 F.E.P. Cases at 1449.

The Courts that have ruled that the 1991 Act does not apply to 
pending cases have generally done so in the context of requests for 
damages and demands for juries under § 102 of the 1991 Act. See. 
e.g., Hansel v. Public Service Co.. 57 F.E.P. Cases 858 (D. Colo. 
1991); Van Meter v. Barr. 57 F.E.P. Cases 769 (D.D.C. 1991). 
Section 102, however, unlike sections 101 and 112, is not strictly 
restorative because it authorizes damages to some plaintiffs who 
could not previously seek them.

19



IV. THE INTERPRETATION OF § 1981 ANNOUNCED IN PATTERSON SHOULD NOT 
BE APPLIED TO THIS CASE AFTER CONGRESS HAS EXPRESSLY REJECTED 
THAT INTERPRETATION
In the months following Patterson and the other now overturned 

Supreme Court decisions, it was often assumed and occasionally held 
by the courts that those decisions would be applied retroactively 
to pre-decision claims. The adoption of the Act is a supervening 
change in the law that provides a basis for concluding that 
retroactive application of the now repudiated decisions is no 
longer appropriate. Southern Bell argues that "refusal to apply 
Patterson retroactively would . . . interfere with the carefully
crafted remedies set forth in Title VII." Br. at 38. This 
reasoning was part of the basis for the Supreme Court's decision in 
Patterson; however Congress has now made clear that its view is 
that a plaintiff should have the benefit of both statutes.25

The Supreme Court decision in Patterson did not decide, and 
could not have even considered, whether retroactive application 
would still be appropriate if the Court's own decision was later 
overturned by Congress. That question remains an open, unresolved 
issue in the Supreme Court, and thus in the lower courts as well. 
Even in Patterson itself, the Supreme Court's mandate would not 
preclude a lower court from considering this question, and now 
holding, in light of the Civil Rights Act, that Patterson should

Cf. Sherman v. Burke Contracting, Inc.. 891 F.2d 1527, 
1534 (11th Cir. 1990, interpreting Patterson as a decision that
Title VII is the exclusive remedy for some types of employment 
decision. This court notes in its opinion in that case that a 
judgment granting "relief under a statute that provides no relief 
..." must be reversed. Id. at 1535. The current statute provides 
relief for the conduct of which Vance complains.

20



not be applied retroactively. "[T]he appellate mandate relates to 
the record and issues then before the court, and does not purport 
to deal with possible later events." Standard Oil of Cal, v. United 
States. 429 U.S. 17, 18 (1976).

Four members of the Supreme Court —  White, O'Connor, 
Rehnquist and Kennedy —  adhere to the standard announced in 
Chevron Oil Co. v. Huson. 404 U.S. 97 (1971), for determining 
whether a decision should be applied retroactively. See James B. 
Beam Distilling Co. v. Georgia. 115 L.Ed.2d 481, 494, 495 (1991) 
(White, J., concurring), 497, 499-500 (O'Connor, J., dissenting). 
Their views are of particular importance, since these justices 
provided the critical deciding votes in the overturned decisions.

Under Chevron the first factor required to justify non­
retroactivity is that the decision in question "must establish a 
new principle of law ... by overruling clear past precedent on 
which litigants may have relied...." 404 U.S. at 106. Neither 
Patterson nor the other overruled decisions purported to consider 
whether they might have had this effect. But Congress, in voting 
to overturn these decisions, based that legislation on its finding 
that the decisions had overruled previously well established 
precedents, precedents on which plaintiffs had frequently relied.

Under Chevron a court is also to consider "the purpose and 
effect" of the new decision, and whether failure to apply that 
decision retroactively will "retard its operation". 404 U.S. at 
107. Thus in Patterson. where the majority opinion was based on a 
view that a broad interpretation of section 1981 would interfere

21



with Title VII, the majority might in 1989 have evaluated whether 
such interference would occur if the rule in Patterson were not 
extended retroactively. But today the policy analysis underlying 
Patterson has been disavowed by Congress. It would be indefensible 
to apply Patterson retroactively in order to achieve a "purpose and 
effect" that Congress has now expressly repudiated.

Justice Stevens, Blackmun and Souter take the view that full 
retroactivity is likely to be appropriate because non-retroactivity 
would mean that the courts in some instances would continue to 
enforce now-repudiated legal principles.26 In James B. Beam 
Distilling. Justice Stevens explained that retroactivity "is in 
keeping with the traditional function of the courts to decide cases 
before them based upon their best current understanding of the 
law." 115 L.Ed.2d at 488. But where the "principles" and 
"understanding" in the decision at issue have been disavowed and 
overturned by Congress, these same arguments cut decisively against 
retroactive application of the repudiated decision. In such a 
situation retroactive application itself would mean "applying 
principles determined to be wrong", and disregarding the "best 
current understanding of the law."

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

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

110 L.Ed.2d at 183.
22



"The general rule is that judicial decisions have retroactive 
effect."27 In order for Congress to correct a judicial 
misinterpretation of a federal statute the corrective legislation 
must also apply to pending cases. Otherwise, the erroneous 
interpretation would persist despite Congress's repudiation of it.

In order to dismiss a pre-Patterson section 1981 claim, a 
court would today have to hold both that the repudiated Patterson 
decision is retroactive and that the legislation overturning 
Patterson is not. Such a combination of conclusions seems 
indefensible as a matter of statutory law, where Congress is 
responsible for determining the content of the law, and the courts 
play the more limited role of carrying out the will of Congress. 
Due respect for the institutional roles of the courts and Congress 
requires not applying retroactively a decision that has been 
overturned by legislation restoring the law which prevailed prior 
to that decision.

Vance filed suit under prior law, which clearly recognized the 
viability of her claims. That prior law has now been restored. It 
thus makes no sense to use as the rule of decision the Supreme 
Court's erroneous interpretation of § 1981 in Patterson, which has 
been repudiated. Applying Patterson retroactively to plaintiff's 
claims while refusing to apply the 1991 Act would amount to 
ensnaring plaintiffs' valid claims on a crag between inconsistent

Occidental Chemical v. Int'l Chem. Wrkrs. Union. 853 F.2d 
1310, 1316 (6th Cir. 1988) , citing Goodman v. Lukens Steel. 482 
U.S. 656, 662 (1987).

23



"retroactivity" rules, while according defendants windfall immunity 
from liability for their discriminatory conduct.

CONCLUSION
For the above reasons, the court should hold that section 101

of the 1991 Civil Rights Act applies to pre-existing claims, and 
that the decision in Patterson should not be applied retroactively.

Respectfully submitted, 

JULIUS L. CHAMBERS
CHARLES STEPHEN RALSTON 
JUDITH REED 
ERIC SCHNAPPER

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

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

Counsel for Amicus

24



CERTIFICATE OF SERVICE

This is to certify that a copy of the above and foregoing has
been served by United States Mail, postage prepaid and properly
addressed on the following:
Mr. Dana G. Bradford, II 
Attorney at Law
BAUMER, BRADFORD AND WALTERS, P.A.
Suite 2000
225 Water Street
Jacksonville, Florida 32201
Mr. Francis B. Semmes 
General Attorney 
Southern Bell Telephone 
and Telegraph Company 
Suite 4300
675 W. Peachtree Street 
Atlanta, Georgia 30375
Mr. Scott Fortune 
Attorney at Law
447 Atlantic Boulevard, Suite # 2 
Atlantic Beach, Florida 32233
Mr. Charles Cook Howell III 
Attorney at Law
FOLEY AND LANDER, COMMANDER, LEGLER 
200 Laura Street 
Jacksonville, Florida 32202
Mr. William J. Sheppard 
Attorney
SHEPPARD AND WHITE, P.A.
215 Washington Street 
Jacksonville, Florida 32202

This the day of March,

NAACP Legal Defense & 
Educational Fund, Inc.

25