Rivers v Roadway Express Brief for Petitioners

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Date is approximate
Topic
- Economic Justice
Notable Person
- Elaine R. Jones
Organization
- NAACP Legal and Educational Defense Fund, Inc.
Collection
- Brief Collection
Taxonomy
Identifier
- 0e23b286-c29a-ee11-be36-6045bdeb8873
Cite this item

Brief Collection, LDF Court Filings. Rivers v Roadway Express Brief for Petitioners, 1993. 0e23b286-c29a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d241fa03-75d5-4ccb-9d6d-e8f24c4f6644/rivers-v-roadway-express-brief-for-petitioners. Accessed August 04, 2025.

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    No. 92-938

In  T he

Supreme Court oi ttje Umtetr states?
October  Term , 1992

Maurice Rivers and Robert C. Davison,
Petitioners,

v.

Roadway E xpress, Inc.,
Respondent.

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

BRIEF FOR PETITIONERS

Elaine R. Jones 
*Charles Stephen Ralston 
Eric Schnapper 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

Cornelia T.L. Pillard 
Kerry Scanlon 
NAACP Legal Defense & 

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

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

Attorneys for Petitioners

* Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



1

Question Presented

Should § 101 of the Civil Rights Act of 1991, enacted 
during the pendency of this case, apply to plaintiffs’ claims 
under 42 U.S.C. § 1981 when those claims are tried on 
remand?



11

Parties to the Proceeding

The Petitioners, plaintiffs in this action, are Maurice 
Rivers and Robert C. Davison, black former employees of 
the defendant. The Respondent is defendant Roadway 
Express, Inc., a national trucking company which operated 
a garage in Toledo, Ohio where Rivers and Davison worked.



Ill

Table of Contents

Pages

Question Pr e s e n t e d ........................................................ i

Parties to the Pro ceed in g ...................................... ii

Table of Contents................................................ .. . iii

Table of Authorities ............................................  v

Opinions Below ..........................................    1

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

Statutes In vo lv ed .....................................................  2

Statement Of The Ca s e ............................................  5

1. Statement of Facts ...........................................  5

2. Proceedings Below ............................................  7

Summary of Argument ............................................  9

Argument ..................................................................  12

I. The Plain Language of h ie  Civil
Rights Act of 1991 Requires its 
Applicahon to the Pending Case . . . . . .  12

II. The Relevant Legal Presumphon 
Requires Application Of § 101
Of The Civil R ights Act Of 1991.............  20



IV

A. Section 101 Presumptively 
Applies Under Bradley v.
Richmond School Board . . . . . . . . .  20

1. No Statutory Direction 
or Legislative History 
Contravenes Application
of § 101 . . . . . . . . . . . . . . . . .  22

2. No "Manifest Injustice"
to Roadway Results from 
Applying § 101 . . . . . . . . . . . .  26

B. Bradley’s Operation In This 
Case Is Consistent With
Prior Law . . . . . . . . . . . . . . . . . . . .  30

1. Section 101 Applies Because 
it Affords Additional
Remedies and Procedures . . . .  32

2. Section 101 Applies Because
It Is Restorative . . . . . . . . . . . .  35

C. This Court’s "Retroactivity"
Decisions Since Bradley Are 
Consistent With That Decision 
And Support Application of
§ 101 Here ............................... .. 39

Conclusion .......................................................... .. 45

Appendix A



Table of Authorities

Cases Pages

Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975) .......... . ...........................................  26

American Tobacco Co. v. Patterson,
456 U.S. 63 (1 9 8 2 )___ _____ _ _____ . . . . . . . . . .  20

Andrus v. Charlestons Stone Product Co.,
436 U.S. 604 (1978) .......................................................  34

Andrus v. Glover Construction Co.,
446 U.S. 608 (1980) ..........................     16

Bennett v. New Jersey,
470 U.S. 632 (1985) .........................................  21, 30, 41, 42

Blanchard v. Bergeron,
489 U.S. 87 (1989) .........................................................  20

Blodgett v. Holden,
275 U.S. 142 (1927) .................................... ..................  32

Bowen v. Georgetown University Hospital,
488 U.S. 204 (1988) ........................ .......................  23, 41, 42

Bradley v. Richmond School Board,
416 U.S. 696, 711 (1974)............................................... passim

Butts v. City o f New York Department o f 
Housing Preservation and Development,
No. 92-7850, 1993 WL 85026
(2d Cir. Mar. 24 1993) ............................... ..................  18

Colautti v. Franklin, 
439 U.S. 379 (1979) 17



VI

Consumer Product Safety Commission v.
GTE Sylvania, Inc., 447 U.S. 102 (1980) . . . . . . . . .  12

Cooper v. City o f North Olmstead,
795 F.2d 1265 (6th Cir. 1986) . . . . . . . . . . . . . . . . .  28

Cort v. Ash, 422 U.S. 66 (1975) .  ___ . . . . . . . . . .  21

Cox v. Hart, 260 U.S. 427 (1 9 2 2 )___ . . . . . . . . . . .  36

Davis v. Michigan Department o f Treasury,
489 U.S. 803 (1989) ............................ .. 15

Delaware State College v. Ricks,
449 U.S. 250 (1980) .................................... .. 28

EEOC v. Arabian American Oil Co. &
Aramco Serv. Co., 499 U .S .___, 111
S. Ct. 1227 (1991) ....................................... ................ 13

Fray v. Omaha World Herald Co.,
960 F.2d 1370 (8th Cir. 1 9 9 2 ) ............................. 19

Freeborn v. Smith,
69 U.S. 160 (1865) . ............... 34

Frisbie v. Whitney,
lb  U.S. 187 (1870) .................................... ..................... 35

Goodman v. Lukens Steel Co.,
482 U.S. 656 (1987) ............... 22, 28

Greene v. United States,
376 U.S. 149 (1964) .............. ................ ............... .. 44

Gulf Offshore Co. v. Mobil Oil Corp.,
453 U.S. 473 (1981) ............ ................................ .. 22, 27



Harvis v. Roadway Express,
923 F.2d 59 (6th Cir. 1991)....... .................. .. 6

Howell v. Commons, 239 U.S. 506 (1916) . . . . . . .  33, 34

Hull v. Cuyahoga Valley Bd. o f Educ.,
926 F.2d 505 (6th Cir.) cert, denied,
111 S.Ct. 2917 (1991) . .....................................................  8

Hutto v. Finney, 437 U.S. 678
reh’g denied, 439 U.S. 1122 (1979) ...........................  21

Jarecki v. G. D. Searle & Co.,
367 U.S. 303 (1960) .......................................................  18

Johnson v. Railway Express Agency,
421 U.S. 454 (1975) .......................................................  28

Jones v. Alfred Mayer Co.,
392 U.S. 409 (1968) ........................................................ 27

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

Kungys v. United States,
485 U.S. 759 (1988) ....................................................... 17

Leatherman v. Tarrant County,
61 U.S.L.W. 4205 (March 3, 1993) ..........................  16, 17

Leonard v. City o f Frankfort Electric &
Water Plant, 752 F.2d 189 (6th Cir. 1985) .................  28

Lewellyn v. Frick, 268 U.S. 238 (1925) ...................... 32

Lytle v. Household Manufacturing, Inc.,
494 U.S. 545 (1990) .......................................................  8, 29

vii



Mackey v. Lanier Collections Agency &
Service, Inc., 486 U.S. 825 (1988) . . . . . . . . . . . . . .  17

McDonald v. Santa Fe Trail
Transportation Co., 427 U.S. 273 (1976) . . . . . . . . . .  28

North Haven Board o f Education v. Bell,
456 U.S. 512 (1982) .................................... 16

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

Polaroid Corp. v. Commissioner o f 
Internal Revenue, 278 F.2d 148
(1st Cir. 1960) ................. ............................ .. 18

Red Lion Broadcasting Co. v. F.C.C.,
395 U.S. 367 (1969) .................................... 36, 37

Regan v. Wald, 468 U.S. 222 (1984) ...................... .. 20

Republic National Bank v. United States,
____U .S .____ , 121 L. Ed. 2d 474 (1992) . . . . . . . .  44

Estate o f Reynolds v. Martin,
985 F.2d 470 (9th Cir. 1993) ..................................... 12, 38

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

Sampeyreac v. United States,
32 U.S. 222 (1833) ...................... .. 33

St. Francis College v. A l Khazraji,
481 U.S. 604 (1987) ................... ..................................  28

Thorpe v. Housing Authority o f Durham,
393 U.S. 268 (1969) . . . . . . . . . . . . . . . . . . . . . . . .  20

viii



Twenty Per Cent Cases,
87 U.S. 179 (1 8 7 4 ) ...................................... ........... . . .  32

United States v. Heth,
7 U.S. (3 Cranch) 399 (1806) ....... ..............................  31

United States v. Menasche,
348 U.S. 528 (1955) .......................................................  17

United States v. Nordic Village, Inc.,
112 S.Ct. 1011 (1 9 9 2 ).....................................................  17

United States v. Schooner Peggy,
1 Cranch 103, 2 L. Ed. 49 (1801) ...............................  20

United States v. Security Industrial Bank,
459 U.S. 70 (1982) .......................................................... 44

Wards Cove Packing Company v. Atonio,
490 U.S. 642 (1989) .......................................................  13

Watts, Watts & Co. v. Unione Austriaca,
248 U.S. 9 (1 9 1 8 )............ ................................................ 34

Winston v. Lear-Siegler, Inc.,
558 F.2d 1266 (6th Cir. 1 9 7 7 ) ....................................... 28

Statutes

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

29 U.S.C. § 185(a) (LMRA) .........................................  7

42 U.S.C. § 1977A(b) and ( c ) ....... ..............................  19

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

42 U.S.C. §§ 2000e-et (Title VII) ..................................  2

ix



Civil Rights Act of 1991, 105 Stat. 1071,
Pub, L. 102-166 . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2, 7

Miscellaneous

H.R. Conf. Rep. No. 856, 101st Cong.,
2d Sess. (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . .  19

S. Rep. No. 101-315, 101st Cong.,
2d Sess. (1990) ............................................................  23, 26

S. Rep. No. 315, 101st Cong., 2d
Sess. (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  40

101st Cong., 1st Sess., at 111 (1990) (statement
of Donald B. Ayer, Deputy Attorney General) . . . . .  26

101st Cong., 2d Sess. 18, 113 (1990) (Committee 
on Education and Labor) . ................. ................ .. 40

136 Cong. Rec. S 9848
(daily ed. July 17, 1990) . ......................................... .. . 40

137 Cong. Rec. H6747, 6768
(daily ed. Aug. 3, 1990) .................................. .............. 19

137 Cong. Rec. 102d Cong ................................ .. 40

137 Cong. Rec. S16562
(daily ed. Oct. 24, 1 9 9 0 ) ................... ....................... . 19, 25

137 Cong. Rec. H3998, 3908
(daily ed. June 4, 1991) ...................... .......................... 19, 39

137 Cong. Rec. S15325
(daily ed. Oct. 29, 1 9 9 1 )............ ...................................  23



137 Cong. Rec. S15483-85
(daily ed. Oct. 30, 1991) . ............ ....................... 23

137 Cong. Rec. S15936
(daily ed. Nov. 5, 1991) ..............................................  23, 24

137 Cong. Rec. H9511, H9530-31
(daily ed. Nov. 7, 1991)................................................  23, 24

101st Cong., 2d Sess. 9, 70 (1990)
(Committee on the Jud ic iary )......................................  40

H.R. Rep. 644, 101st Cong,
2d Sess. (1 9 9 0 )........................ .....................................  23, 38

S.Rep. 315, 101st Cong.
2d Sess. (1 9 9 0 ).......................................................... 23, 25, 38

Civil Rights Act of 1990: Hearings on S2104 
Before the Senate Committee on Labor and Human 
Resources, 101st Cong., 1st Sess. (1990)
(statement of Donald B. Ayer, Deputy
Attorney General) .......................................................... 25

xi



No. 938

In The

Supreme Court of tfje Mmteb States!
October Term, 1992

Maurice Rivers and Robert C. Davison,,
Petitioners,

v.

Roadway Express, Inc.,
Respondent.

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

BRIEF FOR PETITIONERS

Opinions Below

The opinion of the Sixth Circuit is reported at 973 
F.2d 490 (6th Cir. 1992), and is set out at la-16a of the 
Appendix to the Petition for Certiorari.1 The order of the 
Court of Appeals denying respondent’s petition for 
rehearing and for rehearing en banc is unreported and is set

1 Citations to the Appendix to the Petition for Certiorari are 
in the form "P.A. .”



2

out at P.A. 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 P.A. 19a-24a.

Jurisdiction

The decision of the Sixth Circuit was entered on 
August 24,1992. Respondent’s timely petition for rehearing 
en banc was denied on October 13, 1992. The Court 
granted the petition for certiorari on February 22, 1993. On 
March 23, 1993, the Clerk granted an extension of time 
within which to file this Brief up to and including April 30, 
1993. This Court has jurisdiction to hear this case pursuant 
to 28 U.S.C. § 1254(1).

Statutes Involved

This case involves 42 U.S.C. § 1981, as amended by 
§ 101 of the Civil Rights Act of 1991, 105 Stat. 1071, P.L. 
102-166, codified at 42 U.S.C. § 1981(b), and Title VII, 42 
U.S.C. §§ 2000e-et seq. Prior to the 1991 Act, § 1981 
provided as follows:

All persons within the jurisdiction of the 
United States shall have the same right 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 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 no 
other.



3

Section 101 of the Civil Rights Act of 1991 amends § 1981 
as follows:

Sec . 101. Prohibition  Against All Racial 
D iscrimination in the Making and E nforcement 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, perform ance, 
modification, and termination of contracts, 
and the enjoyment of all benefits, privileges, 
terms, and conditions of the contractual 
relationship.

"(c) The rights protected by this 
section are protected against impairment by 
nongovernm ental d iscrim ination and 
impairment under color of State law."

This case also involves provisions of the Civil Rights Act of 
1991 relating to the Act’s application to pending claims, 
including sections 109(c), 402(a) and 402(b), which provide 
in pertinent part:



4

Sec. 109. Protection of Extraterritorial
Employment.

sfc * *

(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.

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.

Title VII provisions prohibiting discriminatory
discharge and retaliation provide in pertinent part:

Sec. 2000e-2. Unlawful employment practices

(a) Employer practices. It shall be an unlawful
employment practice for an employer—

(1) to fail or refuse to hire or to discharge any 
individual, or otherwise to discriminate against any 
individual with respect to his compensation, terms, 
conditions, or privileges of employment, because of 
such individual’s race, color, religion, sex, or national 
origin; or



5

(2) to limit, segregate, or classify his employees or 
applicants for employment in any way which would 
deprive or tend to deprive any individual of 
employment opportunities or otherwise adversely 
affect his status as an employee, because of such 
individual’s race, color, religion, sex, or national 
origin.

Sec . 2000e-3. Other  unlawful employment practices

(a) D iscrimination for making charges, 
t e s t if y in g , a ssistin g , or  pa r t ic ip a t in g  in  
ENFORCEMENT proceedings. It shall be an unlawful 
employment practice for an employer to discriminate against 
any of his employees ... because he has opposed any practice 
made an unlawful employment practice by this title or 
because he has made a charge, testified, assisted, or 
participated in any manner in an investigation, proceeding, 
or hearing about this title.

Statement Of The Case

Petitioners Maurice Rivers and Robert C. Davison 
seek reversal of the decision of the United States Court of 
Appeals for the Sixth Circuit not to apply § 101 of the Civil 
Rights Act of 1991 to their claims of race discrimination in 
employment against their former employer, Roadway 
Express, Inc. ("Roadway" or "the Company").

1. Statement of Facts

The allegations and the facts of record in support of 
plaintiffs’ contentions are as follows: Maurice Rivers and 
Robert Davison, who are both experienced black garage 
mechanics, worked successfully for Roadway from 1972 and 
1973, respectively, until they were discharged in 1986. They 
were two of only four black employees working in Roadway’s 
Toledo garage in 1986. On August 22, 1986, Roadway



6

managers told Rivers and Davison to attend disciplinary 
hearings on their accumulated work records. J.A. 17a;2 Guy 
depo. 8/12/87, at 151.3 For racially discriminatory reasons, 
the managers did not give Rivers and Davison the 
contractually required prior written notice routinely provided 
to white employees. Davison depo. 7/20/87, at 187-88; 
Rivers depo. 7/14/87, at 297-299; Guy depo. 8/12/87, at 148- 
151. Both plaintiffs refused to attend the hearings because 
of the inadequate notice. Both were suspended in their 
absence. They filed successful grievances complaining of the 
preemptory, racially discriminatory disciplinary proceedings.
J.A. 17a; Rivers depo. 7/14/87, at 321-22; McCord depo. 
9/3/87, at 285-86, 293. As soon as plaintiffs prevailed on 
their grievances, however, Roadway again convened 
disciplinary hearings, again without the requisite notice, and 
discharged the petitioners on September 26, 1986 after they 
refused to attend. J.A. 16a; McCord depo. 9/3/87, at 286; 
Rivers depo. 7/14/87 at 327; Guy depo. 8/12/87 at 168-69. 
P.A. 2a-3a. The discharges were retaliatory and racially 
discriminatory. Id. See generally P.A. 2a-3a.4

2 Citations to the Joint Appendix are referred to in the form 
"J.A.

3 Citations in this form refer to depositions in the record 
below.

4 The district court severed the claims of Rivers and Davison 
from those of their original co-plaintiff, James T. Harvis, Jr., on the 
ground that the claims were based on different factual circumstances 
and a joint trial could be prejudicial. Harvis’ trial was conducted 
first, from May 30, 1989 through June 13, 1989, J.A. 8a-9a, with the 
Rivers and Davison jury trial scheduled to proceed starting on 
September 12, 1989. J.A. 8a. This Court decided Patterson v. 
McLean Credit Union, 491 U.S. 164 (1989), on June 15, 1989, 
immediately following Harvis’ trial, and Rivers’ and Davison’s jury 
trial never took place.



7

2. Proceedings Below

Rivers and Davison sued under 42 U.S.C. §§ 1981, 
2000e et seq., and demanded a jury.5 J.A. 3a. The district 
court dismissed their § 1981 discriminatory and retaliatory 
discharge claims prior to trial based on this Court’s decision 
in Patterson v. McLean Credit Union, 491 U.S. 164 (1989). 
P.A. la-16a. Patterson construed the right to "make and 
enforce contracts" as not protecting workers from post-hiring 
race discrimination unless the discrimination was related to 
the making of a new contract (as in certain instances of 
promotion discrimination), 491 U.S. at 177, 185-86, or unless 
it affected the enforcement of contract rights (as in 
discrimination relating to a grievance or complaint of a 
breach of contract), id. at 177-78. After the court dismissed 
the § 1981 claims, it conducted a bench trial on the Title VII 
claims and found in favor of defendant Roadway. J.A. 11a- 
12a.

Rivers and Davison filed a timely appeal. J.A. 13a. 
While the appeal was pending, Congress enacted the Civil 
Rights Act of 1991, which among other things, overturned 
Patterson. Pub. L. No. 102-166, 105 Stat. 1071 (1991). The 
Court of Appeals for the Sixth Circuit granted the parties 
leave to file supplemental briefs addressing the applicability 
of the 1991 Act.

In an opinion dated August 24, 1992, the Court of 
Appeals reversed. P.A. la-18a. The court held that the 
district court erred in dismissing the § 1981 retaliation claims 
because Patterson permitted claims of discrimination in

3 Plaintiffs also asserted claims against Roadway under § 301 
of the Labor Management Relations Act (LMRA), 29 U.S.C. 
§ 185(a), and a hybrid § 301/duty of fair representation claim against 
the Union, Local Union 20, International Brotherhood of Teamsters, 
Chauffeurs, Warehousemen, and Helpers of America. These claims 
are not at issue here, and the union is not a party in this Court.



8

enforcement of contracts, and Rivers’ and Davison’s "ability 
to enforce claimed contract rights was impaired because of 
their race." P.A. 8a. The Sixth Circuit thus remanded the 
case for a jury trial under § 1981 on the claims of 
discrimination in contract enforcement and directed 
redetermination by the district court of the racial discharge 
claims under Title VII if necessary in light of the jury’s 
verdict, as required by Lytle v. Household Mfg., Inc., 494 U.S. 
545 (1990). P.A. 9a-10a.

The Court of Appeals held, however, that when the 
case is tried to a jury for the first time on remand, the 
unamended version of § 1981 as construed by Patterson 
should apply, rather than the current version as amended by 
§ 101 of the Civil Rights Act of 1991. P.A. lla-14a. The 
Court thus applied Patterson retroactively even after it had 
been legislatively rejected. It held — nine months after 
Congress enacted the Civil Rights Act of 1991 repudiating 
Patterson and directing that the statute "take effect upon 
enactment" —  that the 1991 Act did not apply to plaintiffs’ 
pending § 1981 claims.6 Section 101 of the Act defines 
§ 1981 ’s reference to the equal right to "make and enforce 
contracts" to include an equal right to "the making, 
performance, modification, and termination of contracts, and 
the enjoyment of all benefits, privileges, terms and 
conditions of the contractual relationship." Patterson, in 
contrast, limited § 1981 to discrimination in either the 
contract-formation stage, or in efforts to enforce contract 
rights, which lower courts have construed not to cover most 
discrimination on the job or in firing. See, e.g., Hull v. 
Cuyahoga Valley Bd. o f Educ., 926 F.2d 505 (6th Cir.) cert, 
denied, 111 S.Ct. 2917 (1991).

6 Judge Siler concurred in the decision not to apply the 
amended version of § 1981, but dissented from the holding that 
Patterson does not bar the claims. P.A. at 14a-16a.



9

Under the remand order, only the claims of 
retaliatory discharge specifically linked to plaintiffs’ efforts 
to enforce their contractual rights will be tried to the jury 
under instructions conforming to Patterson. The claims of 
discriminatory discharge and retaliation not linked to 
contract enforcement — e.g., not involving impairment of a 
right to grieve contract violations — will then be decided by 
the judge in light of the jury’s verdict. If plaintiffs prevail on 
the claims governed by Patterson, they will be entitled under 
the Sixth Circuit’s decision to a Title VII judgment and to 
backpay on all claims, but may seek damages only on the 
claim of discrimination in contract enforcement. Thus, the 
practical effects of not applying § 101 in this case are that a 
judge, not a jury, would determine plaintiffs’ claims of race- 
based discharge, and even if the jury finds discrimination on 
the contract enforcement claim, no damages beyond backpay 
would be available on the racial discharge claim.

Summary of Argument

Section 101 of the Civil Rights Act amends 42 U.S.C. 
§ 1981 to ensure that the § 1981 right to "make and enforce" 
contracts free from racial discrimination includes the right 
to "performance, modification, and termination of contracts" 
without regard to race, and the equal enjoyment of "all 
benefits, privileges, terms and conditions of the contractual 
relationship." The question here is whether § 101 applies to 
plaintiffs’ pending employment discrimination claims against 
their former employer, Roadway Express, Inc., when those 
claims proceed to trial. For two independent reasons, § 101 
does apply.

First, the plain language and structure of the Civil 
Rights Act of 1991 mandate that the Act be applied to this 
case. The Act directs that it "shall take effect upon 
enactment." It was enacted on November 21, 1991, and is 
thus applicable to cases pending as of that date. Two 
exemptions from the general rule of immediate effectiveness



10

expressly preclude the Act’s application to certain pre
existing claims. The language of these exemptions and the 
fact that they were carved out of the general rule make clear 
that Congress intended the Act to apply to pre-existing 
claims which were not explicitly exempted.

Second, even if the Act’s plain meaning did not 
require that it apply here, § 101 is presumed to apply to a 
pending case such as this one. The unanimous Court in 
Bradley v. Richmond School Bd., 416 U.S. 696, 711 (1974), 
held that new statutory provisions presumptively apply to 
pending cases unless the statute directs otherwise, or the 
application would create a "manifest injustice." The analysis 
under Bradley must focus on the particular provision sought 
to be applied, i.e. § 101 here, and not on the statute as a 
whole. There is nothing in the text or history of the Act 
that would overcome the Bradley presumption with respect 
to § 101.

Application of § 101 here also does not impose any 
"manifest injustice" under Bradley, and failure to apply it 
would be unfair to Rivers and Davison. Section 1981 as 
amended is a key component of federal protection against 
race discrimination in employment, and its prompt 
enforcement not only is in the national interest, but is 
necessary to ensure Petitioners a full remedy. Moreover, 
Roadway has no matured or vested rights that are implicated 
by application of § 101; the law’s application here would 
merely afford plaintiffs additional remedies and procedures 
for violations already covered by Title VII. No new and 
unanticipated substantive obligations would be imposed on 
Roadway as a result of applying § 101. When Petitioners 
were fired, retaliatory and race-based discharge were both 
against federal law: Title VII has consistently prohibited 
such conduct, and because Roadway fired Rivers and 
Davison prior to Patterson v. McLean Credit Union, 491 U.S. 
164 (1989), § 1981 was also then assumed to prohibit it. 
Section 101 is thus merely restorative of the law as the



11

parties knew it when the conduct challenged in this case 
took place.

The Bradley presumption is consistent with the 
decisional law that preceded and followed Bradley. The 
characteristics of § 101 which make its application fair under 
Bradley also make it typical of the kinds of statutes that 
traditionally were applied to pending cases long before 
Bradley. Section 101 as applied here is remedial and 
procedural. It is also restorative. New laws that are 
remedial, procedural, or restorative are properly applied to 
pending claims. In contrast, statutes that disturb vested 
rights or that render conduct illegal after it has occurred, 
routinely have not been applied to pending cases, and such 
statutes are similarly inapplicable under Bradley’s manifest 
injustice exception.

This Court’s cases since Bradley carry forward these 
same basic principles. For example, the Court in Bowen v. 
Georgetown University Hospital, 488 U.S. 204 (1988), refused 
to apply a post-hoc change in rates for medical services 
already performed. Bowen thus involves the type of new law 
which, under Bradley, is not presumed to apply because it 
would impair vested rights and thereby amount to a manifest 
injustice. Bowen’s statement that "[rjetroactivity is not
favored in the law" is best understood to use the word 
"retroactivity" as a term of art, referring precisely to those 
applications of new laws that would impermissibly disturb 
vested rights or change substantive legal rules. Thus, Bradley 
establishes a presumption that new laws apply in the absence 
of manifest injustice, and Bowen announces a presumption 
against application of laws when such application would be 
"retroactive," i.e. when it would cause the very injustice that 
the Bradley standard is designed to avoid. These principles 
require that § 101 be applied to the pending case.



12

Argument

I. The Plain Language of the Civil Rights 
Act of 1991 Requires its Application to  
the Pending Case

Based on the language of the 1991 Civil Rights Act, 
the Court should apply § 101 of the statute here. As this 
Court recently held, "[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 must ordinarily be regarded as conclusive." Kaiser 
Aluminum & Chemical Corp. v. Bonjomo, 494 U.S. 827, 835 
(1990) (quoting Consumer Product Safety Comm’n v. GTE 
Sylvania, Inc., 447 U.S. 102 (1980)). Thus, "where the 
Congressional intent is clear, it governs." Id. The language 
of the Civil Rights Act of 1991 expresses Congress’ clear 
intent that the Act apply to pending cases. Estate o f 
Reynolds v. Martin, 985 F.2d 470 (9th Cir. 1993).

Three provisions of the Civil Rights Act of 1991 
expressly address the applicability of the Act to pending 
cases. Section 402 contains two of those provisions — the 
general rule requiring immediate application of the 1991 Act 
(in subsection 402(a)) and one exception to that rule (in 
subsection 402(b)):

Section  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



13

impact case for which a complaint was filed before 
March 1, 1975, and for which an initial decision was 
rendered after October 30, 1983.7

Additionally, § 109 states, in relevant part:

Se c t io n  109. P r o t e c t io n  o f  Ex t r a t e r r it o r ia l  
E m pl o y m e n t .8 * * Oil

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

These provisions, viewed in light of accepted principles of 
statutory construction, require that the Act be applied to 
pending claims not specifically excepted. These are the only 
provisions in the entire Act regarding when it applies, and 
not one word suggests that the Act was not intended as a 
general matter to apply to pending cases.

7 Section 402(b), excepting "certain disparate impact cases" 
from the Act, is a special provision proposed by Alaska Senator 
Murkowski, who selected the filing and decision dates referred to in 
order to ensure that the provision excepts only Wards Cove Packing 
Company v. Atonio, 490 U.S. 642 (1989). Section 402(b) relieves 
Ward’s Cove Packing Company from the obligation to defend itself 
under the 1991 Act’s standards.

8 Section 109 extends the protections of the Civil Rights Act
of 1964, as amended, to United States citizens working overseas for
American companies, and thus overrules EEOC v. Arabian American
Oil Co. & Aramco Serv. Co., 499 U .S .__ , 111 S. Ct. 1227 (1991).



14

Even standing alone, § 402(a) makes clear that § 101 
applies to petitioners’ § 1981 claims. Section 402(a) states 
the general rule for application of the 1991 Act. It explicitly 
provides that the Act must "take effect upon enactment." 
The changes in the law must be construed as effective and 
binding upon the enactment date, November 21,1991, which 
was well before the Court of Appeals issued its August 24, 
1992 remand order. Section 1981 as amended by § 101 — 
rather than the pre-Act version of § 1981 as construed in 
Patterson — must apply in all proceedings in this case after 
November 21, 1991. The consequence of applying § 101 
would be that all of plaintiffs’ race discrimination claims, 
whether they involve retaliation for contract enforcement or 
not, would on remand be tried to the jury, and damages 
would be available if plaintiffs prevail. The Sixth Circuit, 
however, erroneously decided that only the contract- 
enforcement claims should go to the jury and provide a basis 
for an award of damages, and that even if the jury finds that 
the Company was racially motivated, the racial discharge 
claims should be redetermined by the judge. That decision 
contradicts the 1991 Act’s express terms requiring courts to 
give the statute effect as of its enactment date, November 
21, 1991.

The language of the 1991 Act is clear notwithstanding 
that it does not utilize words such as "prospective" or 
"retrospective." Indeed, in order to be clear with respect to 
its applicability or non-applicability to pending claims, a 
statute need not refer to pending or pre-existing claims 
specifically, either by way of inclusion or exclusion. In 
Kaiser Aluminum Corp. v. Bonjomo, 494 U.S. 827, for 
example, the statute did not state in so many words that it 
was inapplicable to pending claims. The Court, however, 
drew inferences from the language and structure of the law 
and held based on those inferences that the "most logical 
reading of the statute" on its face was that it did not apply



15

to pending claims. See also Davis v. Michigan Dept, o f 
Treasury, 489 U.S. 803, 809 (1989) (holding that "the words 
of the statute must be read in their context and with a view 
to their place in the overall statutory scheme"). The 
inferences to be drawn from the plain language and 
structure of the 1991 Act are far more straightforward than 
those this Court made in Bonjomo in reaching the 
conclusion that the statute in that case was clear on its face.9

The "most logical reading" of the 1991 Act requires 
application of § 101 to Rivers’ and Davison’s § 1981 claims, 
because where Congress intended the Act not to apply to 
pending claims, it said so. Sections 402(b) and 109(c) are 
the only two exceptions to § 402(a)’s general mandate that 
the 1991 Act "take effect upon enactment." Section 402(b) 
forbids immediate application of the Act to a particular 
pending case, and § 109(c) forbids application of the Act to 
pre-existing claims regarding discrimination overseas. The 
presence of those two exceptions compels the conclusion 
that § 101, which is not subject to any such exception, must 
be applied to pending cases such as this one.

9 The statute at issue in Bonjorno nowhere referred to pending 
claims, and did not state that it was prospective only. Rather, the 
Court concluded that the statute plainly did not apply to the pending 
claims in Bonjorno because it referred to calculation of interest "from
the date of the entry of the judgment...." 494 U.S. at 838, and
because it referred to "the rate" and"a rate" of interest, id. (emphasis 
in opinion). The Court viewed these terms as meaning 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, so that the post-judgment 
Act could not apply. Id. at 839-40. Thus, although the dividing point 
between cases with pre-Act judgments and cases with post-Act 
judgments was not specified by the legislation, the Court said that it 
was clear because that was "the most logical reading of the statute." 
Id. at 838.



16

That § 402(a) establishes a rule of application 
different from §§ 109(c) and 402(b) is emphasized by the 
particular terms Congress used. Section 402(a) controls 
"except as otherwise specifically provided." (Emphasis 
added). This language makes plain that the only other 
specific provisions regarding applicability of the Act — §§ 
109(c) and 402(b) -— are exceptions to the general rule stated 
in § 402(a). Similarly, § 402(b) controls "notwithstanding any 
other provision of the Act." The only "other provision" even 
potentially relating to the applicability of the Act in the 
circumstances described in § 402(b) is the general rule in § 
402(a). If § 402(a) already excluded all pre-existing claims, 
both § 402(b) and § 109(c) would be unnecessary surplusage.

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

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

Russello v. United States, 464 U.S. 16, 23 (1983) {quoting 
United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 
1972)). See North Haven Bd. o f Educ. v. Bell, 456 U.S. 512, 
521 (1982)\ Andrus v. Glover Construction Co., 446 U.S. 608, 
616-17 (1980). The Court this Term unanimously applied 
this rule in Leatherman v. Tarrant County, 61 U.S.L.W. 4205, 
4207 (March 3, 1993), to hold that no heightened standard 
of particularity applies to the pleading of § 1983 claims. 
Federal Rule of Civil Procedure 9(b) requires special 
particularity in pleading certain actions, but does not include 
§ 1983 claims among them, so the Court held that § 1983 
claims are not subject to the requirement of special



17

particularity. The Court in Leatherman applied the 
venerable rule "expressio unius est exclusio alterius," id., or, 
as Black’s Law Dictionary translates, "the expression of one 
thing is the exclusion of another." The fact that the 1991 
Act exempts from § 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. Similarly, the decision specially 
to exempt the Wards Cove case from the Act’s provisions 
implies that the Act does not exempt other pending 
litigation, such as this case.

A second canon of statutory construction supporting 
application of § 101 in this case is the rule against construing 
any statutory provision as redundant. As this Court held in 
United States v. Menasche, 348 U.S. 528 (1955), "[t]he 
cardinal principle of statutory construction is to save and not 
to destroy. It is our duty to give effect, if possible, to every 
clause and word of a statute, rather than to emasculate an 
entire section...." Id. at 538-39 (internal quotations marks 
and citations omitted). This rule was reaffirmed last Term 
in United States v. Nordic Village, Inc., 112 S.Ct. 1011, 1015 
(1992), in which the Court held that "a statute must, if 
possible, be construed in such a fashion that every word has 
some operative effect."10 If § 402(a) were construed to bar 
application of the Act to conduct occurring before the date 
of enactment, § 109(c)’s directive that § 109 "shall not apply

10 See, Kungys v. United States, 485 U.S. 759, 778 (1988) (holding 
that "no provision [of a statute] should be construed to be entirely 
redundant"); Mackey v. Lanier Collections Agency & Sen’., Inc., 486 
U.S. 825, 837 (1988) (stating that "we are hesitant to adopt an 
interpretation of a congressional enactment which renders superfluous 
another portion of that same law"); Colautti v. Franklin, 439 U.S. 379, 
392 (1979) (holding that reading a statute to render a section 
"redundant or largely superfluous" violates "the elementary cannon of 
construction that a statute should be interpreted so as not to render 
one part inoperative").



18

with respect to conduct occurring before the date of 
enactment" would be a mere reiteration of a rule already 
laid down generally by § 402(a). Similarly, if § 402(a) barred 
application of the Act to all pending cases, there would be 
no need to enact 402(b), barring its application to one 
specific pending case. See Jarecki v. G. D. Searle & Co., 367 
U.S. 303, 307 (1960) ("If there is a big hole in the fence for 
the big cat, need there be a small hole for the small one?") 
{quoting Polaroid Corp. v. Commissioner o f Internal Revenue, 
278 F.2d 148, 153 (1st Cir. I960).11

The Court of Appeals in this case misapplied the 
rules of statutory construction by relying on extraneous 
statements to reject the statute’s plain meaning. Although 
the court acknowledged plaintiffs’ contention that 
"retroactivity is implied because two sections are expressly 
made prospective," it dismissed that plain language 
implication by drawing on a passing reference in a statement 
accompanying the President’s veto of the Civil Rights Act of 
1990, which contained a completely different effective date 
provision, and on Congress’ failure in 1990 to override that 
veto. P.A. 12a.12 The court below adopted this analysis

11 To read §§ 109 and 402(b) as mere "insurance policies" 
adopted to make doubly clear in certain instances that the Act shall 
not apply is to ignore this basic rule against construing statutes to 
render provisions redundant. E.g., Butts v. City of New York Dep’t of 
Hous. Presen’ation and Dev., No. 92-7850, 1993 WL 85026, at *11 (2d 
Cir., Mar. 24, 1993) (citing cases). If every redundancy could be 
called an insurance policy, this rule would be turned on its head. The 
very notion of a provision being an "insurance policy," or reiteration 
of another provision, contravenes the well established rule that each 
statutory provision must be read to have independent meaning.

12 Section 15 of the 1990 Act, passed by the House and Senate 
in October 1990, made the Patterson provision applicable to "all

(continued...)



19

from Fray v. Omaha World Herald Co., 960 F.2d 1370, 1377 
(8th Cir. 1992), in which the court inferred from the Senate’s 
failure by a single vote to override the 1990 veto that 
Congress "knew from their 1990 experience that, because of 
the President’s veto power, they could not enact a law [in 
1991] that purported to legislate retroactively." Id. (Emphasis 
in original). The bill President Bush signed in 1991, 
however, contained numerous provisions that he deemed 
unacceptable in his 1990 veto message, including the right to 
a jury trial, the availability of punitive damages, and 
compensatory damage awards up to $300,000.12 13 In 
addition, both Fray and the court in this case ignored the 
fact that in 1991, attempts to preclude application of the act 
to conduct occurring before its effective date were also 
repeatedly defeated.14 While the lower court in this case 
correctly concluded that the legislative history on the 
applicability of § 101 to pending claims reflects "conflicting 
views," P.A. 12a, a few sentences later it erroneously relied

12(...continued)
proceedings pending on or commenced after June 15, 1989" and 
allowed courts under certain circumstances to vacate completely final 
judgments "as to which the rights of any of the parties thereto have 
become fixed and vested." H.R. Conf. Rep. No. 856, 101st Cong., 2d 
Sess. 10 (1990).

President Bush’s October 22, 1990 veto message included a 
passing reference to the bill’s "unfair retroactivity rules" — a 
reference not to the application of the Act to pending cases but 
rather to the authorized reopening of closed and dismissed cases as 
to which all appeals had been exhausted. See 136 Cong. Rec. S16562 
(daily ed. October 24, 1990).

13 Compare 42 U.S.C. § 1977A(b) and (c) with 137 Cong. Rec. 
S16562 (daily ed. Oct. 24, 1990).

14 See 136 Cong. Rec. H6747 (daily ed. Aug. 3, 1990), rejected 
at id. 6768; 137 Cong. Rec. H3998 (daily ed. June 4, 1991), rejected at 
id. 3908.



20

on legislative history as if it were unambiguous and thereby 
undermined the clear message of the statute’s language.13 * 15

II. The Relevant Legal Presumption Requires 
Application Of § 101 Of The Civil Rights 
Act Of 1991

A. Section 101 Presumptively Applies Under 
Bradley v. Richmond School Board

Because the language of the Act is clear, the statute’s 
plain meaning is a sufficient ground standing alone to 
require reversal of the decision of the Sixth Circuit. If, 
however, the Court disagrees that the statute’s text in itself 
requires application of § 101 to future proceedings in this 
case, the presumption in favor of retroactivity independently 
requires that result.

In Bradley v. Richmond School Board, this Court 
unanimously held 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. 696, 711 (1974), citing United States v. Schooner 
Peggy, 1 Cranch 103, 2 L. Ed 49 (1801). See Thorpe v. Hous. 
Auth. o f Durham, 393 U.S. 268 (1969). Bradley applied § 718 
of the 1972 Emergency School Aid Act, which provided for

13 Unless legislative history is unequivocal in opposition to
application of new legislation to pending cases, it cannot be read to
alter the textual message of the statute. Regan v. Wald, 468 U.S. 222, 
237 (1984); American Tobacco Co. v. Patterson, 456 U.S. 63, 75 
(1982); see Blanchard v. Bergeron, 489 U.S. 87, 98-99 (1989) (Scalia, 
J., concurring in part and concurring in the judgment).



21

attorney’s fees for school desegregation litigation for time 
spent on the case prior to the law’s effective date. The 
Court of Appeals denied a fee award, asserting that statutes 
should not be applied to conduct occurring before their 
effective date unless Congress clearly mandated such 
application. See 416 U.S. at 715 n. 20. This Court reversed, 
holding that "we must reject the contention that a change in 
the law is to be given effect in a pending case only where 
that is the clear and stated intention of the legislature." Id. 
at 715. Rather, the correct presumption is precisely the 
opposite: a law is presumed to apply unless it directs
otherwise or its application would be unjust. Id. at 711.

This Court has repeatedly reaffirmed Bradley. In 
Hutto v. Finney, 437 U.S. 678, reh’g denied, 439 U.S. 1122 
(1979), the Court applied the Civil Rights Attorney’s Fees 
Awards Act of 1976 to a case that was pending when the Act 
was passed, based in part on "this Court’s general practice" 
of applying to pending cases statutes that are silent as to 
their applicability. Id. at 694 n. 23.16 In Cort v. Ash, 422 
U.S. 66 (1975), the Court followed Bradley to apply a new 
law giving the Federal Elections Commission jurisdiction 
over a pending challenge to misuse of corporate funds: 
"[T]he Amendments constitute an intervening law that 
relegates to the Commission’s cognizance respondent’s 
complaint.... [Ojur duty is to decide this case according to 
the law existing at the time of our decision." Id. at 76-77 
(citing Bradley). See Bennett v. New Jersey, 470 U.S. 632, 639 
(1985) (reaffirming Bradley and declining under the 
"manifest injustice" exception to apply a 1978 amendment 
establishing new substantive standards for Title I 
expenditures to funds already spent under earlier grants); 
Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 486 n. 16

16 Hutto also illustrates that Congress legislates in reliance on 
Bradley. See id. at 694 n. 23 (quoting House Report which 
acknowledges Bradley standard).



22

(1981) (following Bradley to hold that an appellate court 
must apply the law in effect at the time it renders its 
decision); see also, Goodman v. Lukens Steel Co., 482 U.S. 
656, 662 (1987) (relying on Thorpe and Schooner Peggy).17

Bradley mandates application of the Civil Rights Act 
of 1991 to this case unless there is "statutory direction or 
legislative history to the contrary," or unless application of 
the Act would result in "manifest injustice" to the defendant. 
None of these conditions obtains here.

1. No Statutory Direction or Legislative 
History Contravenes Application of 
§ 101

First, there is no language in the Civil Rights Act of 
1991 that forbids its application to pending cases. Even if 
the Court disagrees with Point I, supra, and holds that the 
text is unclear as to whether the statute applies to pending 
cases, Point I certainly demonstrates that the statutory text 
cannot be read as clearly precluding its application to all 
pending claims.

Second, the legislative history of the Act does not 
preclude its application to pending cases. The context, 
purpose and history of the statute are consistent with 
application of § 101 here. The original, bipartisan sponsors 
and leading proponents were Senator Kennedy in the Senate 
and Representatives Edwards and Fish in the House. Each 
of them insisted that the Act applied to pending cases, 
unless in a particular case that application would be

17 Decisions upon which Roadway relied below to urge that 
Bradley was an aberration which should not be followed are actually 
consistent with Bradley and support application of § 101 here. See 
infra, Point II.C.



23

manifestly unjust.18 The views of these sponsors were the 
same as those reflected in the analysis agreed upon in the 
1990 committee reports, which recognized that the rule in 
Bradley controlled and generally favored application to 
pending cases.19

Senator Danforth disagreed with Senator Kennedy 
about which legal presumption, if any, was likely to govern 
application of the Act to pending cases. 137 Cong. Rec. 
S15483-85 (daily ed. Oct. 30, 1991) (interpretative 
memorandum introduced by Sen. Danforth). Senator 
Danforth believed that applicability under the Act should be 
decided not under Bradley, but under Bowen v. Georgetown 
University Hosp., 488 U.S. 204 (1988), and the opinion of 
Justice Scalia in Kaiser Aluminum  v. Bonjomo, 494 U.S. at 
840. 137 Cong. Rec. S15483 (daily ed. Oct. 30, 1991).
Senator Danforth explicitly acknowledged, however, that the 
views he expressed "may not be the interpretation of Senator 
Hatch or Senator Kennedy or anyone else." 137 Cong. Rec. 
S15325 (daily ed. Oct. 29, 1991). These views do not 
amount to a congressional mandate overriding the Bradley 
presumption.

18 137 Cong. Rec. S15485 (daily ed. Oct. 30, 1991), id. S15936 
(daily ed. Nov. 5 1991) (remarks of Senator Kennedy approving of 
the general rule that new legislation is applied to pending cases); 137 
Cong. Rec. H9530-31 (daily ed. Nov. 7, 1991) (remarks of 
Representative Edwards underscoring importance of application of 
Act to pending cases to avert many years of future enforcement of 
repudiated law, and to avoid conferring an undeserved windfall on 
defendants); id. at H9549 (remarks of Representative Fish, concurring 
with Rep. Edwards and stating "I think it should be clear that the bill 
applies to pending cases").

19 H.R. Rep. 101-644, pt. 2, at 45 (101st Cong., 2d Sess. 1990); 
S. Rep. 101-315, at 59 (101st Cong. 2d Sess. 1990).



24

The extraordinary lengths to which Congress went to 
add the § 402(b) exception to a version of the Act which 
already contained § 402(a) also forecloses the possibility 
that, under § 402(a), the Act applies only prospectively. 
Alaska Senator Murkowski sought the § 402(b) exception for 
W ard’s Cove Packing Company alone, and he explicitly said 
so in seeking support for it. Murkowski assured his 
colleagues that the Wards Cove Packing Co, v. Atonio case is 
the only case that fits the general-sounding description in 
402(b). 137 Cong. Rec. S15954 (daily ed. Nov. 5, 1991). 
The inclusion of this section was necessary only because 
without it, Congress understood that the Act would have 
applied to the Ward’s Cove Packing Company pursuant to 
§ 402(a). When the 1991 Act passed the Senate on October 
30, 1991, however, § 402(b) was inadvertently omitted. 
Senator Dole then took the extraordinary step of insisting 
that the bill be returned to the Senate floor for further 
debate and a separate vote to add this provision.20 When 
the bill was presented for a second vote, both supporters and 
opponents of the § 402(b) exemption in the House and 
Senate concurred that its effect was to exempt the Wards 
Cove Company from the 1991 Act standards in the litigation 
still pending against it (a result that the supporters lauded 
and the opponents decried). This controversy would have

20 See generally 137 Cong. Rec. S15950-68 (daily ed. Nov. 5, 
1991).

According to members of Congress, President Bush, too, 
insisted on a separate vote on § 402(b). See 137 Cong. Rec. H9506 
(daily ed. Nov. 7, 1991) (Rep. McDermott) ("[Tjhe Rules Committee 
was forced to adopt a closed rule, because the White House said the 
bill will be vetoed if this Wards Cove exemption is removed."); H9511 
(daily ed. Nov. 7, 1991) (Rep. Walker) ("I have heard the President 
would veto this bill unless this exemption for Wards Cove is 
included.")



25

been unintelligible if § 402(a) already made the entire Act 
inapplicable to pre-existing claims.

The congressional intent behind § 101 in particular 
also belies any conclusion that Congress intended the Act to 
apply only to post-Act cases. There was complete unanimity 
from the outset of the legislative process in 1989 that the 
Patterson decision improperly narrowed the law and should 
be repudiated.21 An important part of Congress’ 
motivation from the outset of the entire legislative process 
was to stop dismissals of § 1981 claims under Patterson.22 
Even the Bush Administration, whose legislative proposal 
also rejected Patterson, expressed dissatisfaction with "the 
cases applying Patterson over the past eight months."23 
Many of the dismissals which Congress and the President 
cited as improper were in cases in which Title VII claims 
were also pending — as they are in this case — but afforded 
no jury right and lesser remedies.24 Application of § 101 to

21 See infra note 36.

22 See S. Rep. No. 101-315, 101st Cong., 2d Sess., at 13 (1990) 
(referring to more than 200 race discrimination claims dismissed 
under Patterson).

Senator Hatch 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). If § 101 applied prospectively only, 
it could not "take care of' a plaintiff in a pending case, as Senator 
Hatch promised this legislation would.

23 Civil Rights Act of 1990: Hearings on S 2104 Before 
The Senate Committee on Labor and Human Resources, 
101st Cong., 1st Sess., at 111 (1990) (statement of Donald B. Ayer, 
Deputy Attorney General).

24 See S. Rep. No. 101-315, 101st Cong., 2d Sess., at 13 (1990).



26

afford Rivers and Davison a jury trial and damages on each 
of their discrimination claims is consistent with the 
legislative purpose behind the enactment of that section.

2. No "Manifest Injustice" to Roadway 
Results from Applying § 101

There is no risk of "manifest injustice" from 
application of the Act to Rivers’ and Davison’s claims. 
Manifest injustice under Bradley is determined by "(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 law 
upon those rights." 416 U.S. at 717. No manifest injustice 
results from application of the 1991 Act here.

The central distinction made by the Court in Bradley 
regarding the "nature and identity of the parties" 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 is 
presumed. 416 U.S. at 718-19.25 Civil rights cases clearly 
fall within this latter category. The Reconstruction-era civil

25 Bradley specifically identified school desegregation and Title 
II litigation as examples of matters of national concern. In Title II 
litigation, although the parties are not governmental actors, a private 
plaintiff functions as "a private attorney general, vindicating a policy 
that Congress considered of the highest priority." 416 U.S. at 719. 
The Court has repeatedly characterized eradication of employment 
discrimination as of similarly vital public importance. In Albemarle 
Paper Co. v. Moody, 422 U.S. 405 (1975), the Court observed that 
there was "an equally strong public interest" in implementation of 
Title II and Title VII, id. at 415, and emphasized that enforcement 
of federal law against employment discrimination served the 
"[ijmportant national goals" of "eradicating discrimination throughout 
the economy and making persons whole for injuries suffered through 
past discrimination." Id. at 417-21.



27

rights laws, including § 1981, were enacted to eliminate "the 
badges and the incidents of slavery,'1,26 thereby addressing 
matters of as great a public concern as the United States 
courts have ever been called upon to adjudicate. The 
application of the Civil Rights Act of 1991 to these parties 
vindicates the important public purpose of preventing racial 
discrimination.

The second factor relevant to whether application of 
the statute would be unjust under Bradley is the nature of 
the rights at stake. This factor is primarily concerned with 
protecting accrued causes of action of plaintiffs:

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.

Bradley, 416 U.S. at 720. See Gulf Offshore Co., 453 U.S. at 
486 n. 16 (holding that the "manifest injustice" exception 
does not apply where "the change does not extinguish a 
cause of action but merely requires a retrial").

No matured rights of Roadway are implicated by 
application here of § 101. At the time the alleged 
discrimination took place, discrimination in any aspect of 
employment was illegal under both Title VII and § 1981. 
Furthermore, as to § 1981, this was clearly Roadway’s 
understanding.26 27 The law in the Sixth Circuit was clear that

26 Jones v. Alfred Mayer Co., 392 U.S. 409, 440 (1968).

27 Prior to this Court’s Patterson decision, the only legal basis 
upon which Roadway had contended that plaintiffs’ § 1981 claims 
were not viable was its contention in the Supplement to Defendant 
Roadway Express Inc.’s Answer to Plaintiffs’ First Amended

(continued...)



28

§ 1981 was available to remedy retaliatory and discriminatory 
discharge.27 28 This Court had repeatedly assumed as 
much,29 and the district court had sustained plaintiffs’ 
§ 1981 claims before this Court decided Patterson. J.A. 7a.

By having plaintiffs’ § 1981 claims dismissed under 
Patterson in a case in which parallel Title VII claims were 
still pending, Roadway enjoyed a reprieve from facing a jury 
on plaintiffs’ discrimination claims, and from the risk of 
having to pay damages beyond backpay. Given the 
pendency of the appeal, however, that reprieve cannot have 
generated any matured right that would be manifestly unjust 
to disturb. As this Court explained in Freeborn v. Smith, 69 
U.S. 160 (1865):

[I]t is hard to perceive what vested right the 
defendant in error had .... If either party 
could be said to have a vested right, it was

27(...continued)
Complaint that "section 1981 does not confer a private right of action 
for plaintiffs in this case." Indeed, Roadway conceded below, in 
characterizing the claims after Patterson as "no longer viable under 
§ 1981," (emphasis added), that such claims previously were viable. 
Brief of Appellee, at 18.

28 See generally Cooper v. City o f North Olmstead, 795 F.2d 1265, 
1270 (6th Cir. 1986) (holding that discriminatory discharge is 
actionable under § 1981, n.3); Leonard v. City o f Frankfort Elec. & 
Water Plant, 752 F.2d 189, 195 (6th Cir. 1985) (same); Winston v. 
Lear-Siegler, Inc., 558 F.2d 1266, 1268 (6th Cir. 1977) (holding that 
retaliatory discharge is actionable under § 1981).

29 Several Supreme Court cases assumed the viability of 
discharge and retaliation claims. See, e.g., Goodman v. Lukens Steel 
Co., 482 U.S. 656 (1987); St. Francis College v. A l Khazraji, 481 U.S. 
604 (1987); Delaware State College v. Ricks, 449 U.S. 250 (1980); 
McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 275 (1976); 
Johnson v. Railway Express Agency, 421 U.S. 454, 459-60 (1975).



29

[the] plaintiff who had legally brought his 
case to this court for review, and whose 
remedy had been suspended by an accident or 
circumstance, over which he had no control.
If the judgment below was erroneous, ... the 
defendant is only claiming a vested right in a 
wrong judgment. "The truth is ... there is no 
such thing as a vested right to do wrong ...."

69 U.S. at 175 (citation omitted). Because the district court 
erred in dismissing even the narrowed claims under 
Patterson, the § 1981 retaliation claim has been remanded 
for a jury trial independent of application of § 101. Under 
Lytle v. Household Mfg., Inc., 494 U.S. 545, moreover, if 
plaintiffs prove discrimination before the jury, the court will 
make new factual determinations and enter a new judgment 
on the Title VII claims consistent with the jury’s findings.30 
To apply § 101 on remand to require that all of plaintiffs’ 
discrimination claims be tried before the jury as opposed to 
the judge would therefore impair no matured rights. There 
is, of course, no matured right in a wrong judgment, such as 
the judgment of the district court in dismissing all § 1981 
claims under an erroneous application of Patterson.

The third consideration relating to whether 
application of the Act would produce a "manifest injustice" 
is the impact of the change in the law. This factor concerns 
"the possibility that new and unanticipated obligations may 
be imposed upon a party without notice or an opportunity 
to be heard." Bradley, 416 U.S. at 720. Because the cause 
of action under § 101 merely restores to plaintiffs their pre- 
Patterson § 1981 remedy for discrimination that has been

30 Roadway conceded below that, if the appeals court 
determined the § 1981 dismissal was in error, which it has since done, 
the Title VII judgment could not be left in place and estop the 
§ 1981 litigation. Supplemental Brief of Appellee, at 48.



30

consistently illegal under Title VII, defendants cannot 
identify any "new and unanticipated obligations." Roadway 
was on notice when the challenged conduct occurred that 
discriminatory discharge of employees was illegal, and such 
conduct has consistently remained illegal at all relevant 
times.31 This application of Bradley comports with the 
implication of Bennett v. New Jersey, 470 U.S. at 639-40, that 
Bradley does not require retrospective application of statutes 
that create new substantive liabilities. See infra, Point II.C., 
at 41-42. No new substantive liability is created by applying 
§ 101 to allow a jury trial and damages on all claims on 
remand.

B. B r a d l e y ’s  Operation In This Case 
Is Consistent With Prior Law

For two centuries, application of new statutes to pre
existing claims has been a routine matter of statutory 
construction. Long before the decision in Bradley, this Court 
consistently recognized that, unless Congress expressly 
directed otherwise, statutes like § 101 presumptively applied 
to pre-existing claims. Two characteristics of § 101 make it 
presumptively applicable: (1) the changes it makes are
remedial and procedural, and (2) it is restorative of the law 
as the parties and Congress previously interpreted it. Where 
a law enacts new remedies and procedures to enforce an 
existing right, the Court has long presumed that the new law 
applies to pre-existing claims. And where legislation restores 
a legal rule or standard that the parties knew governed their 
conduct when that conduct took place, such restorative 
legislation has also been presumed to apply to pre-existing 
claims. These two categories are consistent with the Bradley 
presumption and its manifest injustice exception; remedial

31 Roadway itself asserted in the Court of Appeals that "there 
is no dispute that Appellants’ claims, however characterized, were 
actionable under Title VII ...." Brief of Appellee, at 16.



31

and restorative laws are two common types of laws which, 
when applied to pending cases, do not create manifest 
injustice.

A new law which is either procedural or restorative 
presumptively applies in a pending case. Thus, even if the 
Court concluded that § 101 is not procedural and remedial, 
but substantive, the restorative nature of § 101 is an 
independent basis requiring its application here under this 
Court’s settled law. And, similarly, even a non-restorative 
provision applies if the provision is merely procedural or 
remedial.

Other categories of new laws have for many years 
been presumed to be inapplicable to pre-existing claims, and 
they coincide with the manifest injustice exception under 
Bradley: laws which revoke vested rights, and those which 
render illegal conduct that was legal when engaged in. This 
Court has consistently held that statutes which would vitiate 
a "vested right" or a matured cause of action if they were 
applied to pre-existing claims do not so apply.32 The Court 
has also held that statutes altering established substantive 
rules of conduct on which parties had relied to their

32 E.g., United States v. Heth, 7 U.S. (3 Cranch) 399 (1806)
(holding that vested right to compensation for past services at rate 
pertaining when services rendered cannot be disturbed by application 
of new statute lowering compensation rate); id. at 413 (Paterson, J.) 
(referring to presumption against construction that would "interfere 
with ... antecedent rights, services, and remuneration"); id. at 414 
(Cushing, J.) (referring to presumption against construction that 
would "devest vested rights"), id. at 411 (Washington, J.) (referring to 
"expectation" of collectors); Twenty Per Cent Cases, 87 U.S. 179, 187- 
88 (1874) (holding, where raise in salary that was in effect when the 
work to be compensated was done was subsequently repealed, that 
the repeal would interfere with vested rights and should be construed 
so as not to apply).



32

detriment should not be applied to pre-existing claims.33 
The most common example of such reliance occurs where 
new legislation renders illegal conduct that was previously 
lawful. See generally Point II.G , infra.

1. Section 101 Applies Because it Affords 
Additional Remedies and Procedures

Because § 101 aids enforcement of anti-
discrimination law by adding procedures and remedies, and 
does not substantively expand the types of race 
discrimination that federal law prohibits, this Court’s cases 
during the last two centuries mandate that § 101 apply here. 
Section 101 would effect a remedial change here because it 
would enhance the available remedies for retaliation and for 
discriminatory discharge-conduct which has at all relevant 
times been illegal and subject to equitable relief under Title

33 Lewellyn v. Frick, 268 U.S. 238 (1925), referred to

the general principle "that laws are not to be 
considered as applying to cases which arose before 
their passage" is preserved, when to disregard it 
would be to impose an unexpected liability that, if 
known, might have induced those concerned to avoid 
it, and to use their money in other ways.

268 U.S. at 252 (emphasis added). Similarly, in Blodgett v. Holden, 
275 U.S. 142 (1927), the Court refused to apply a new tax to gifts 
given prior to its enactment, commenting:

It seems wholly unreasonable that one who, in entire 
good faith and without the slightest premonition of 
such consequence, made absolute disposition of his 
property by gifts should thereafter be required to 
pay a charge for so doing.

275 U.S. at 147; see also id. at 149 (Holmes, J., concurring) (quoting 
Lewellyn).



33

VII. Section 101 merely provides an opportunity to recover 
damages for such conduct, and in this case an opportunity 
for a § 1981 jury trial on plaintiffs’ discriminatoiy discharge 
claims. Thus, § 101 merely adds remedies and procedures 
for substantive wrongs already recognized.

Section 101 is therefore applicable under this Court’s 
established law favoring application to pre-existing claims of 
new remedies to enforce established rights. Justice Holmes 
rightly observed that when Congress amends remedies, "it 
evinces a change of policy, and an opinion that the rights ... 
can be better preserved by "the [new remedial scheme.] The 
consideration applies with the same force to all cases...." 
Howell v. Commons, 239 U.S. 506, 508 (1916). Where 
Congress concludes that an existing remedial scheme is 
defective, and creates what it believes to be a fairer and 
more effective method of enforcement, that congressional 
judgment extends to all cases, whether they arose before or 
after the new law. Having made such a judgment, it would 
be surprising indeed if Congress chose to leave in effect for 
any category of cases the discarded remedial scheme which 
it had found inadequate.

The Court has consistently applied to pending cases 
statutes that alter the remedies available in civil litigation. 
In Sampeyreac v. United States, 32 U.S. 222 (1833), for 
example, the Court noted that

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



34

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

32 U.S. at 239-240.34

The court below erroneously concluded that the 1991 
Act makes a substantive — rather than remedial and 
procedural — change in the law in part because the court 
considered the 1991 Act as a whole, rather than examining 
the specific impact of applying § 101 in this case. P.A. 14a. 
But plaintiffs are not asking the Court to apply all of the 
1991 Act’s provisions here; they ask only that § 101 be 
applied. The Court in Bradley itself properly looked only at 
§ 718 of the 1972 Emergency School Aid Act. 416 U.S. at 
709. The 1991 Act in its entirety, like the 1972 Act at issue 
in Bradley and many other federal laws, is long and complex. 
The Bradley rule would be entirely unworkable if it required 
courts in each case to sift through dozens or perhaps 
hundreds of pages of statutory provisions to determine 
whether any of them are substantive before they can address 
the provision sought to be applied.

Under the Court of Appeals’ analysis, this Court’s 
doctrine on application of remedial and procedural changes 
would be all but abolished. The existence of any substantive 
provision in a statute would by definition bar application of 
other, wholly remedial or procedural provisions to pending 
cases. The proper application here of Bradley's distinction 
between substantive and non-substantive changes in law

34 The Court has repeatedly applied to pending litigation new 
laws authorizing federal courts to hear claims the merits of which 
were actionable, in some other forum, prior to the new laws. See e.g., 
Andrus v. Charlestone Stone Prod. Co., 436 U.S. 604, 607-08 n. 6 
(1978); Watts, Watts & Co. v. Unione Austriaca, 248 U.S. 9 (1918); 
Hallowed v. Commons, 239 U.S. 506, 508 (1916); Freeborn v. Smith, 
69 U.S. 160 (1865).



35

requires examination of § 101 alone within the factual and 
procedural context of this case.

2. Section 101 Applies Because It 
Is Restorative

Section 101 should also be applied to pending cases 
because it repudiated what Congress viewed as this Court’s 
too-restrictive interpretation of § 1981. The statute thereby 
returned the § 1981 standard to what the lower courts and 
the parties understood it to be when the conduct challenged 
in this case took place. When plaintiffs were fired in 1986, 
jury trials and damages were generally understood had been 
authorized under § 1981. Congress sought to restore what 
it and virtually all the lower courts thought had been the 
reach of § 1981 prior to Patterson.

The Supreme Court on a number of occasions has 
rejected arguments that vested rights are injured by 
legislation which was intended to restore formerly prevailing 
law or legal status. This principle was applied over a century 
before Bradley and Bonjomo in Frisbie v. Whitney, 76 U.S. 
187 (1870). Frisbie, like many others similarly situated, had 
purchased and settled on land in an area of California 
"supposed by almost every one in that country to be private 
property." Id. at 188. A subsequent judicial decision, 
however, held that the land in question was actually the 
property of the United States, causing "a rush" of outsiders 
to file claims on the land under then-existing law authorizing 
homesteading on government land. Within a few months of 
the judicial decision, however, a "magnanimous" Congress 
adopted new legislation giving previous occupants such as 
Frisbie an opportunity to purchase at nominal cost the farms 
they had built and cultivated. The Supreme Court



36

unanimously rejected the claim of a subsequent homesteader 
that the new legislation violated his vested rights. Id. at 193- 
96.3S

Because the parties in this case understood the 
governing law at the time of the underlying conduct to be 
the same in all respects — procedural, remedial and 
substantive — as the law which has been restored under 
§ 101, no vested rights or expectations are at risk. See supra 
Point II. A.2. at 28-30. When the discrimination against 
Rivers and Davison took place, § 1981 was generally 
considered to apply to claims of discriminatory discharge. 
See id. Defendant Roadway never relied on the Patterson 
decision or any similar construction of § 1981 in personnel 
decisions with respect to Rivers and Davison, and the 
Company never asserted before Patterson that retaliation or 
discharge was not covered by § 1981. Section 101 should 
thus be applied here because it describes the law as the 
parties understood it when the challenged conduct occurred.

In determining whether a law is restorative, the Court 
also looks to the understanding of Congress regarding prior 
law. Laws enacted for the purpose of "correcting" judicial 
interpretations of statutes and restoring prior law should be 
applied to pending claims in order to give full effect to their 
restorative purpose. This result follows from the rule that 
"[subsequent legislation declaring the intent of an earlier 
statute is entitled to great weight in statutory construction." 
Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 380-81 
and n.8 (1969). Thus, when Congress enacts legislation

35 See also Cox v. Hart, 260 U.S. 427 (1922) (holding vested 
rights not violated by statute restoring preference to claimant to 
public land who had settled there "when the law conferred a right to 
do so"); Freeborn v. Smith, 69 U.S. 160 (1865) (holding vested right 
not violated by new statute restoring an appeal right to an appellant 
whose appeal had been extinguished when Nevada changed from a 
territory to a state).



37

expressly designed to correct what it deems to have been an 
erroneous interpretation of statutory language, it would 
defeat the deference required by Red Lion to decline to 
apply the statute to pending cases in order to give effect to 
its restorative function.

If restorative legislation were applied only 
prospectively, for numerous litigants the law would not be 
"restored" at all. Where Congress considered the 
disapproved decision a mistaken departure from prior 
precedents, as it so clearly did with respect to Patterson, it 
may be presumed that Congress did not intend forever to 
disadvantage litigants who had the misfortune of having 
pending cases while the error was temporarily in effect. As 
the Ninth Circuit explained in Estate o f Reynolds v. Martin, 
985 F.2d at 475, "Congress’ expressed desire to undo the 
effects of recent Supreme Court decisions, and to restore 
civil rights law to its previous state, reinforces our belief that 
Congress intended the courts to apply the Act to cases 
presently before them." A statute adopted for the express 
purpose of restoring prior law cannot plausibly be 
understood to codify for all pre-existing but unresolved 
claims the very decision which Congress disapproved.

The presumption in favor of application of restorative 
statutes does not depend on whether Patterson was actually 
wrongly decided. It does not matter whether the parties 
were "correct" in their pre-Patterson legal assumptions that 
§ 1981 covered all forms of discharge and retaliation. 
Rather, the point is that those were their assumptions. The 
parties’ understanding at the time is no less salient to the 
analysis here simply because the Court subsequently reached 
a different conclusion. If Roadway shared in the commonly 
held assumption, reasonable in view of case law at the time, 
that § 1981 prohibited race discrimination in all aspects of 
employment, it cannot now be heard to protest that 
application of § 101 produces unexpected and thus 
manifestly unjust effects.



38

It similarly does not matter whether Congress was 
actually "correct" in its view of the original version of § 1981. 
What matters is that Congress believed Patterson was a 
misinterpretation of the original statute, and that its purpose 
in enacting § 101 was to reiterate what it took to be the 
meaning and intent of the original statute. The issue is not 
what the original statute actually meant, but what Congress 
in 1991 thought (however mistakenly in the Court’s view) the 
statute meant, and whether Congress thus believed the 1991 
Act merely codified the intent of the earlier law. The 
legislative history on this precise point overwhelmingly 
supports the conclusion that Congress believed that Patterson 
was wrongly decided and therefore sought to restore § 1981 
by legislatively overruling Patterson,36 The structure of

36 Both in 1990 and in 1991, there was unanimity on this point, 
and even the strongest opponents of the overall legislation — in 
Congress and in the Bush Administration — agreed that Patterson 
created an unintended and unacceptable restriction of § 1981 rights. 
In an April 3, 1990 letter from Attorney General Thornburgh to 
Senator Kennedy, the Bush Administration vigorously opposed most 
of the 1990 bill Senator Kennedy and others had introduced, but it 
supported overruling Patterson because "[w]e believe that the law as 
interpreted in Patterson leaves a significant gap in Section 1981 
coverage that should be filled." (Letter from Attorney General Dick 
Thornburgh to Senator Edward M. Kennedy, April 3, 1990, p. 11).

The June 8, 1990 Report of the Senate Committee on Labor 
and LIuman Resources on the Civil Rights Act of 1990 devoted an 
entire section to "The Need to Restore the Protection Against All 
Racial Discrimination in the Making and Enforcement of Contracts," 
stating that Patterson "sharply cut back on the scope and effectiveness 
of Section 1981." S. Rep. No. 315, 101st Cong., 2d Sess. 12 (1990). 
The Report also included a statement of minority views of Senators 
Hatch, Thurmond and Coats, with just one sentence regarding 
Patterson: "The Lorance and Patterson decisions do merit reversal." 
Id. at 65. The House reports in 1990 contained similar statements. 
See H.R. Rep. No. 644 Part 2, 101st Cong., 2d Sess. 9, 70 (1990) 
(Committee on the Judiciary) and H. R. Rep. No. 644 Part 1, 101st

(continued...)



39

§ 101, which is presented as an interpretation of the phrase 
"make and enforce contracts" from the original version of 
§ 1981, rather than as a re-wording of the original statutory 
phrase, comports with the legislative history. Because § 101 
is restorative both with respect to the legal consequences 
Roadway anticipated when it discharged Rivers and Davison, 
and with respect to what Congress thought it was 
accomplishing in enacting § 101, established law requires its 
application here.

C. This Court’s "Retroactivity" Decisions 
Since B r ad le y  Are Consistent With That 
Decision and Support Application 
of § 101 Here

The Court’s decision in Bowen v. Georgetown Univ. 
Hosp., 488 U.S. 204 (1988), while consistent with the 
principles articulated above, is not applicable here. Bowen 
announces a presumption against "retroactivity" for laws that 
change substantive rights, while Bradley establishes an 
opposite presumption for procedural, remedial and 
restorative measures. In Bonjomo, 494 U.S. 827, the Court 
ruled that the presumption articulated in Bradley was "[i]n

“ (...continued)
Cong., 2d Sess. 18,113 (1990) (Committee on Education and Labor).

On July 17, 1990, Senator Kennedy said in floor debates, 
"Now, we put the law back to what it was prior to Patterson in our 
substitute. The Bush Administration has also adopted virtually 
similar language in their own proposal, to overturn Patterson." 136 
Cong. Rec. S 9848 (daily ed. July 17, 1990). The terms of the 
discussion were the same in 1991. Senator Durenberger pointed out 
that the 1991 Act overturned Patterson and Lorance and that "[a]ll 
interested parties, including the Administration, civil rights groups 
and business groups, agree that these two cases incorrectly narrowed 
the protections available to minorities." 137 Cong. Rec. 102d Cong., 
1st Sess., S 7026 (daily ed. June 4, 1991).



40

apparent tension" with language in Bowen, but concluded 
that it did not need to "reconcile the two lines of precedent" 
because the case was decided based on the plain language of 
the statute. Id. at 837.37 What may appear to be a conflict 
when the issue is framed as whether new statutes in general 
apply "retroactively" disappears on closer analysis of the 
nature of the legal changes at issue. The recent holdings of 
this Court carry forward the basic principles of Bradley and 
the pre-Bradley cases: new laws that impair vested rights or 
retrospectively change standards of conduct are "retroactive" 
in the technical legal sense used in Bowen and thus do not 
apply in pending cases, whereas other new laws, including 
remedial, procedural and restorative provisions, are not in 
the category of "retroactive" applications which Bowen 
condemns, and they do apply.38

37 Justice Scalia argued in a separate concurring opinion, which 
no other member of the Court joined, that Bradley was "in 
irreconcilable contradiction" with the line of cases regarding 
"retroactivity" and should be overruled. 494 U.S. at 841. Eight 
justices rejected that characterization of Bowen and Bradley. Four 
members of the Court, dissenting as to the meaning of the language 
of the statute at issue, insisted that Bowen and Bradley were entirely 
consistent, id. at 864-65; the majority opinion described any tension 
between the precedent as merely "apparent." Id. at 837.

38 The United States is the party which argues most frequently 
in the federal courts that new statutes should apply to pending cases, 
and in so doing the Government frequently relies on Bradley. See 
Appendix A hereto (listing cases in which the United States has 
relied upon, or stood to benefit from, application of the Bradley 
presumption). A holding by this Court that Bowen or Bonjomo have 
limited or overruled Bradley might seriously jeopardize the 
government’s enforcement efforts in areas far beyond civil rights. 
The agencies recently invoking the Bradley presumption include the 
Immigration and Naturalization Service and Criminal and Civil 
Divisions of the Department of Justice, the Department of Labor, the 
Environmental Protection Agency, Federal Deposit Insurance 
Corporation, Resolution Trust Corporation, Department of Health 
and Human Services, and many others. Id.



41

In Bowen, the Court construed rule-making authority 
of the Secretary of Health and Human Services not to 
include authority to adopt a "retroactive cost-limit rule," 
which would have permitted the United States to recoup 
fees already paid to the Hospital under prior reimbursement 
standards. In so holding, the Court commented:

Retroactivity 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. The agency rule that Bowen identified as 
impermissibly "retroactive" would have deprived New Jersey 
of funds to which it was contractually entitled.

Bowen thus presented a classic problem of applying 
a new rule to conduct performed in reliance on existing legal 
standards. The hospitals had provided the medical services 
based on the government’s representation that the hospitals 
would be reimbursed at rates that were fixed by the then 
controlling reimbursement schedules. When those rates 
were lowered two years later, their retroactive application 
would have required the State to repay over $2 million for 
services already rendered under the old schedule. Thus, to 
apply the new rule to the State’s claims would have been 
"manifestly unjust" under Bradley.

Bonjomo’s suggestion that Bowen and Bradley are 
reconcilable — but simply did not need to be reconciled in 
that case, see 494 U.S. at 837 — is consistent with the 
Court’s earlier post -Bradley decisions. In Bennett v. New 
Jersey, 470 U.S. 632 (1985), for example, the Court explained 
that the presumption against "retroactivity" was a 
presumption regarding statutes affecting substantive rights 
and obligations:



42

Bradley held that a statutory provision for 
attorney’s fees applied retroactively to a fee 
request that was pending when the statute 
was enacted. This holding rested on the 
general principle that a court must apply the 
law in effect at the time of its decision, which 
Bradley concluded holds true even if the 
intervening law does not expressly state that 
it applies to pending cases. Bradley, however, 
expressly acknowledged limits on this 
principle. "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." This 
limitation comports with another venerable 
rule of statutory interpretation, i.e. that 
statutes affecting substantive rights and 
liabilities are presumed to have only 
prospective effect. See, eg., United States v.
Security Industrial Bank, 459 U.S. 70, 79 
(1982); Greene v. United States, 376 U.S. 149,
160 (1964). Cf. Bradley, [416 U.S.] at 725 
(noting that statutory change did not affect 
substantive obligations).

470 U.S. at 639-40 (emphasis added) (citations omitted).

The Court in Bennett held that the statute at issue in 
that case was "presumptively" inapplicable to existing claims 
because the statute had altered standards of conduct on 
which the parties had earlier relied. The majority 
emphasized the need for fixed standards on which officials 
granting Title I funds and those receiving them could rely. 
470 U.S. at 640. Bennett suggests the Bradley line of 
decisions "comports with" the decisions referred to in Bowen 
because the circumstances expressly excepted from the 
Bradley presumption — statutes which would affect vested



43

rights or standards on which parties would have relied — are 
precisely the circumstances to which the Bowen presumption 
applies.

Thus, the Bowen presumption applies where 
application of a new law to a pre-existing claim would be 
"manifestly unjust" within the meaning of Bradley, and is 
fully consistent with that case. Because § 101 affects no 
vested rights and effects no substantive change, but merely 
restores remedies and procedures available when this case 
began, the Bradley presumption applies here. Within the 
meaning of Bowen, application of § 101 in this case is not a 
"retroactive" application at all.

Similarly, the Court viewed the post-judgment 
interest statute at issue in Bonjomo, which applied to ail 
appeals taken from judgments entered after the effective 
date of the statute, October 1, 1982, as prospective. The 
Court so characterized it despite the fact that, for years after 
that effective date, most such appeals would occur in cases 
that were filed before, and arose out of conduct occurring 
before, October 1982. Application of the new interest rate 
to a November 1982 judgment, although necessarily 
involving a pre-Act claim, was characterized as not 
retroactive, because it was only on the date of judgment that 
the losing party, in deciding whether to pay the judgment or 
appeal, would have relied on the potential interest cost of 
further disputing that award.39 As Justice Thomas recently

39 See Bonjorno, 494 U.S. at 839:

[Ojn the date of judgment expectations with respect 
to interest liability were fixed, so that the parties 
could make informed decisions about the cost and 
potential benefits of paying the judgments or seeking 
appeal.

(continued...)



44

explained, "not every application of a new statute to a 
pending case will produce a ‘retroactive effect.’" Republic 
National Bank v. United States, _____ U.S. , 121 L. Ed. 2d 
474, 492 (1992) (opinion of Thomas, J., concurring). Where, 
as here, a new statute affects only the procedures to be 
applied and the remedies to be awarded, its application to 
a pending case has no "retroactive" effect. In contrast, 
where a new law changes the substantive rules governing 
conduct, or eradicates vested rights, it is properly said to be 
truly retroactive within the technical legal meaning of that 
term as used in Bowen. Application of § 101 to the further 
proceedings that will in any event occur in this case has no 
"retroactive effect," because it merely means that a jury trial 
and damages will be available on all the discrimination 
claims. The non-retroactive effect of applying § 101 here is 
also clear because both a jury and damages were thought to 
be available when this case began. 39

39(...continued)
Justice Scalia denounced "retroactive" applications, but characterized 
as "prospective" the application of the new interest rate to any 
judgment entered after October 1, 1982 without regard to when the 
original violation occurred. Id. at 841.



45

Conclusion

The judgment of the Court of Appeals should be 
reversed insofar as it held that the unamended version of 
§ 1981, and not the statute as amended by § 101 of the 1991 
Civil Rights Act, governs the trial of plaintiffs’ employment 
discrimination claims on remand to the district court.

Respectfully submitted,

Cornelia T.L. Pillard 
Kerry Alan Scanlon 
NAACP Legal Defense & 

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

Elaine R. Jones 
* Charles Stephen Ralston 

Eric Schnapper 
NAACP Legal Defense & 

Educational Fund, Inc. 
99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

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

Attorneys for Petitioners

* Counsel of Record



APPENDIX



APPENDIX A

Appellate Cases in Which the United States 
Has Sought to Apply a New Statute to a 

Pre-Existing Claim

This list includes reported appellate decisions in 
which a court’s opinion considered possible application of a 
new statute to a pre-existing claim and in which the party 
that would have benefitted from that application was an 
agency of the United States government. Because it was not 
feasible to examine the actual briefs in those cases, it is 
possible there may be a few instances in which the argument 
was raised by the court sua sponte. and was never briefed by 
the United States. Conversely, there are may be instances 
in which the United States sought such an application but 
they are not on this list, either because the reported opinion 
did not discuss the issue or because the opinion was not 
officially reported. Except as noted, the court decided to 
apply the new statute to the claim at issue.



2a

Department of Justice - Criminal Cases

Turner v. United States, 410 F.2d 837, 842-43 (5th Cir. 1969) 
(1967 amendment to Universal Military Training and Service 
Act).

United States v. Haughton, 413 F.2d 736, 738 (9th Cir. 1969) 
(1967 amendment to Universal Military Training and Service 
Act).

United States v. Vanella, 619 F.2d 384, 385-86 (5th Cir. 1980) 
(amendment to Speedy Trial Act).

United States v. Femandez-Toledo, 749 F.2d 703 (11th Cir. 
1985) (amendment to Bail Act) (application denied).

Nilson Van & Storage Co. v. Marsh, 755 F.2d 362, 364-66 (4th 
Cir. 1985) (Comprehensive Crime Control Act of 1984).

United States v. Angiulo, 755 F.2d 969, 970-74 (1st Cir. 1985) 
(Bail Reform Act of 1984).

United States v. Zannino, 761 F.2d 52 (1st Cir. 1985) (Bail 
Reform Act of 1984).

United States v. Affleck, 765 F.2d 944 (10th Cir. 1985) (Bail 
Reform Act of 1984)

United States v. Miller, 830 F.2d 1073, 1075-76 (9th Cir. 1987) 
(Comprehensive Crime Control Act of 1984).

United States v. Wright, 873 F.2d 437, 443-44 (1st Cir. 1989) 
(amendment to statute regarding sentencing guidelines).

Commonwealth o f Northern Mariani Islands v. Mendiola, 976 
F.2d 475 (9th Cir. 1972)



3a

Department of Justice - General Civil Litigation

Beatty v. United States, 191 F.2d 317, 320 (8th Cir. 1951) 
(1949 amendment to Housing and Rent Act).

United States v. Alabama, 362 U.S. 602 (1960) (1960 Civil 
Rights Act).

United States v. Village Corp., 298 F.2d 816 (4th Cir. 1962) 
(Virginia law extending statute of limitations).

United States v. Hinds County School Bd., 560 F.2d 619, 622- 
23 (5th Cir. 1977) (1972 Equal Educational Opportunity 
Act).

United States v. State o f North Carolina, 587 F.2d 625, 626 
(4th Cir. 1978) (executive branch reorganization approved by 
Congress).

United States v. Fresno Unified School Dist., 592 F.2d 1088, 
1093-94 (9th Cir. 1979) (executive branch reorganization 
approved by Congress).

United States v. Commonwealth o f Virginia, 620 F.2d 1018, 
1022 (4th Cir. 1980) (executive branch reorganization 
approved by Congress).

United States v. Elrod, 627 F.2d 813, 819 (7th Cir. 1980) 
(Civil Rights of Institutionalized Persons Act).

Ruiz v. Estelle, 679 F.2d 1115, 1134-36 (5th Cir. 1982) (Civil 
Rights of Institutionalized Persons Act).

United States v. Marengo County Comm’n, 731 F.2d 1546, 
1552-55 (11th Cir. 1984) (1982 amendments to Voting Rights 
Act).



4a

United States v. Dallas County Comm’n, 739 F.2d 1529, 1534 
(11th Cir. 1984) (1982 amendment to Voting Rights Act).

United States v. 6.93 Acres o f Land , 852 F.2d 633 (1st Cir. 
1988) (amendment to Equal Access Justice Act).

Ayers v. Allain, 893 F.2d 732, 754-56 (5th Cir. 1990) (Civil 
Rights Restoration Act)

United States v. Peppertree Apartments, 942 F.2d 1555, 1560- 
61 (11th Cir. 1991) (amendments to National Housing Act).

Department of Justice - Immigration and Naturalization 
Service

United States v. Kairys, 782 F.2d 1374 (7th Cir. 1986) (1961 
amendment to immigration law).

Ayala-Chavez v. United States I.N.S., 945 F.2d 288, 294-95 
(9th Cir. 1991) (1990 amendment to Anti-Drug Abuse Act) 
(application denied).

Department of Labor

Bethlehem Shipbuilding Corp. v. Cardillo, 102 F.2d 299, 303 
(1st Cir. 1939) (1934 amendment to Longshoremen’s and 
Harbor Workers’ Compensation Act).

Luckenbach S.S. Co., Inc. v. Norton, 106 F.2d 137, 138 (3d 
Cir. 1939) (1934 amendment to Longshoremen’s and Harbor 
Workers’ Compensation Act).

New Amsterdam Casualty Co. v. Cardillo, 108 F.2d 492, 493 
(D.C. Cir. 1939) (1934 amendment to Longshoremen’s and 
Harbor Workers’ Compensation Act).



5a

Overseas African Construction Corp. v. McMullen, 500 F.2d 
1291 (2d Cir. 1974) (amendment to 33 U.S.C. §928 [check 
this].

Cooper Stevedoring o f Louisiana, Inc. v. Washington, 556 F.2d 
268, 271-72 (5th Cir. 1977) (1972 amendment to
Longshoremen’s and Harbor Workers’ Compensation Act).

Marshall v. Sink, 614 F.2d 37, 38 n .l (4th Cir. 1980) (Federal 
Mine Safety and Health Amendment Act of 1977).

Reeves v. International Telephone and Telegraph Corp., 616 
F.2d 1342, 1350 (5th Cir. 1980) (1978 amendment to Fair 
Labor Standards Act).

Sikora v. American Can Co., 622 F.2d 1116, 1119 (3d Cir. 
1980) (amendment to ADEA) (application denied).

Rivera v. Becerra, 714 F.2d 887, 896 (9th Cir. 1983) (1980 
amendment to Federal Unemployment Tax Act).

Environmental Protection Administration

Republic Steel Corp. v. Costle, 581 F.2d 1228, 1233-34 (6th 
Cir. 1978) (Clean Water Act of 1977).

United States v. Monsanto Co., 858 F.2d 160, 175-76 (4th Cir.
1988) (amendment to Comprehensive Environmental 
Response, Compensation and Liability Act).

United States v. R.W. Meyer, 889 F.2d 1497, 1505-06 (6th Cir.
1989) (Superfund Amendments and Reauthorization Act).

Schalk v. Reilly, 900 F.2d 1091, 1096-97 (7th Cir. 1990) (1988 
Superfund Amendments and Reauthorization Act).



6a

Federal Deposit Insurance Corporation

Demurs v. First Service Bank for Savings, 907 F„2d 1237, 
1239-40 (1st Cir. 1990) (Financial Institutions Reform, 
Recovery and Enforcement Act).

Federal Deposit Ins. Corp. v. 232, Inc., 920 F.2d 815, 818-19 
(11th Cir. 1991) (Financial Institutions Reform, Recovery 
and Enforcement Act).

Federal Deposit Ins. Corp. v. Kasai, 913 F.2d 487, 493 (8th 
Cir. 1990) (Financial Institutions Reform, Recovery and 
Enforcement Act).

Federal Deposit Ins. Corp. v. Wright, 942 F.2d 1089, 1095 (7th 
Cir. 1991) (Financial Institutions Reform, Recovery and 
Enforcement Act).

Federal Deposit Ins. Corp. v. New Hampshire Insurance Co., 
1991 U.S. App. LEXIS 30071 (9th Cir. 1991) (Financial 
Institutions Reform, Recovery and Enforcement Act).

Kirkbride v. Continental Cas. Co., 933 F.2d 729 (9th Cir. 
1991) (Financial Institutions Reform, Recovery and 
Enforcement Act).

Greenberg v. Comptroller o f the Currency, 938 F.2d 8 (2nd 
Cir. 1991) (Financial Institutions Reform, Recovery and 
Enforcement Act).

N. C.N.B. Texas National Bank v. P&R Investments No. 6, 965 
F.2d 518 (5th Cir. 1992) (Financial Institutions Reform, 
Recovery and Enforcement Act).

North Arkansas Medical Center v. Barrett, 962 F.2d 780 (8th 
Cir. 1992) (Financial Institutions Reform, Recovery and 
Enforcement Act).



7a

Resolution Trust Corporation

In re Resolution Trust Corp., 888 F.2d 57, 58 (8th Cir. 1989) 
(Financial Institutions Reform, Recovery and Enforcement 
Act).

Resolution Trust Corp. v. Lightfoot, 938 F.2d 65, 67 (7th Cir. 
1991) (Financial Institutions Reform, Recovery and 
Enforcement Act).

Resolution Trust Corp. v. Camp, 965 F.2d 25 (5th Cir. 1972) 
(Financial Institutions Reform, Recovery and Enforcement 
Act).

Department of Health and Human Services

Harper-Grace Hospitals v. Schweiker, 691 F.2d 808, 811 (6th 
Cir. 1982) (law regarding Medicaid reimbursement).

Memorial Hosp. v. Heckler, 706 F.2d 1130, 1136 (11th Cir. 
1983) (amendment to Medicaid law).

Hyatt v. Heckler, 151 F.2d 1455, 1458-59 (4th Cir. 1985) 
(Social Security Disability Benefits Reform Act of 1984).

Other

Hallowell v. Commons, 239 U.S. 506 (1916) (36 Stat. 855) 
(Department of the Interior).

Federal Reserve Bank o f Richmond v. Kalin, 11 F.2d 50 (4th 
Cir. 1935) (48 Stat. 184) (Federal Reserve Board).

Ziffrin v. United States, 318 U.S. 73, 78 (1943) (amendment 
to Interstate Commerce Act) (Interstate Commerce 
Commission).



8a

Bowles v. Strickland, 151 F.2d 419 (5th Cir. 1945) (1944 
amendment to Emergency Price Control Act) (Office of 
Price Administration).

Hospital A ss’n o f New York State, Inc. v. Toia, 511 F.2d 790, 
796 (2d Cir. 1978) (amendment to Medicaid Act) 
(Department of Health, Education and Welfare).

Natural Resources Defense Council v. United States Nuclear 
Regulatory Commission, 580 F.2d 698, 699-700 (D.C. Cir. 
1978) (Nuclear Non-Proliferation Act of 1978).

Chamberlain v. Kurtz, 589 F.2d 827, 835 (5th Cir. 1979) 
(amendment to Internal Revenue Code) (I.R.S.).

United States v. City o f Miami, Fla., 614 F.2d 1322, 1328 (5th 
Cir. 1980) (executive branch reorganization approved by 
Congress).

Coca-Cola Co. v. Federal Trade Commission, 642 F.2d 1387, 
1390 (D.C. Cir. 1981) (Soft Drink Interbrand Competition 
Act).

United States v. Holcomb, 651 F.2d 231, 234 (4th Cir. 1981) 
(Horse Protection Act Amendments of 1976) (Department 
of Agriculture).

Equal Employment Opportunity Comm ’n. v. County o f Santa 
Barbara, 666 F.2d 373, 375 n. 6a (9th Cir. 1982) (amendment 
to ADEA) (application denied) (E.E.O.C.).

Central Freight Lines, Inc. v. United States, 669 F.2d 1063, 
1069-70 (5th Cir. 1982) (Motor Carrier Act of 1980) 
(Interstate Commerce Commission).



9a

United States v. Tex-La Elec. Co-op., Inc., 693 F.2d 392, 404 
(5th Cir. 1982) (1977 Department of Energy Act) 
(Department of Energy).

People o f State o f Illinois v. I.C.C., 698 F.2d 868, 872 (7th 
Cir. 1983) (Staggers Act) (application denied) (Interstate 
Commerce Commission).

Petrou Fisheries, Inc. v. I.C.C., 727 F.2d 542, 545-48 (5th Cir. 
1984) (Railroad Revitalization and Regulatory Reform Act) 
(application denied).

Long. v. United States I.R.S., 742 F.2d 1173, 1183 (9th Cir. 
1984) (Economic Recovery Tax Act).

Black Hills Power and Light Co. v. Weinberger, 808 F.2d 665, 
672 and n.5 (8th Cir. 1987) (Competitiveness in Contracting 
Act) (Department of Defense).

Danbury, Inc. v. Olive, 820 F.2d 618, 625 (3d Cir. 1987) (Tax 
Reform Act) (Government of the Virgin Islands).

Lunsford v. Price, 885 F.2d 236 240 (5th Cir. 1989) (Federal 
Employees Liability Reform and Tort Compensation Act of 
1988) (Tennessee Valley Authority).
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Rivers v Roadway Express Brief for Petitioners

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