Leake v. Long Island Jewish Medical Center Motion for Leave to File and Brief Amicus Curiae

    ORIGINAL

UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

ROBERT LEAKE,
Plaintiff-Appellee,

-V-

LONG ISLAND JEWISH MEDICAL CENTER,
Defendant-Appellant.

On Appeal from the United States District Court 
Eastern District of New York

MOTION FOR LEAVE TO FILE AND BRIEF AMICUS CURIAE 
FOR THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.

Julius LeVonne Chambers 
Charles Stephen Ralston 

99 Hudson St.,
16th Floor
New York, N.Y. 10013 
(212) 219-1900

Attorneys for Amicus 
Curiae NAACP Legal 
Defense and Educational 
Fund. Inc.



TABLE OF CONTENTS
TABLE OF CONTENTS........................................ i
TABLE OF AUTHORITIES...................................... i
MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE ..............  1
ISSUE PRESENTED FOR REVIEW ...............................  1
STATEMENT OF THE C A S E ....................................  1
ARGUMENT ..................................................  x

THE CIVIL RIGHTS RESTORATION ACT OF 1988 SHOULD BE 
APPLIED TO CASES PENDING AT THE TIME OF ITS 
ENACTMENT ......................................  !

CONCLUSION ................................................  6
CERTIFICATE OF SERVICE ....................................  7

TABLE OF AUTHORITIES

Cases! Page:

American Steel Foundries v. Tri-City Cent. Trades Council,
257 U.S. 184 (1921).................................... ...

Bennet v. New Jersey, 470 U.S. 632 (1985) .................. 5
Bradley v. School Board of Richmond, 416 U.S. 696 (1974) . 2, 3,

5
Carpenter v. Wabash Railway Co., 309 U.S. 23 (1940) ........  2
Goldstein v. California, 412 U.S. 546 (1973) .............. 3
Greene v. United States, 376 U.S. 149 (1963)................ 5
Grove City College v. Bell, 465 U.S. 555 (1984) ............ 4
Johnson v. United States, 163 F.2d 30 (1st Cir. 1908) . . . .  3
Reynolds v. United States, 292 U.S. 443 (1934) ..............  3

1



Thorpe v. Housing Authority of Durham, 393 U.S. 268 (1969) . 2, 5
United States v. Alabama, 362 U.S. 602 (1960) ..............  2
United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103 (1801)

2
Vanderbark v. Owens-Illinois Glass Company, 311 U.S. 538 (1941)

2
Ziffrin v. United States, 318 U.S. 73 (1943) ................  2

Statutes:
Age Discrimination A c t ...................................... ...
Civil Rights Restoration Act of 1987 ......................  1, 5
Rehabilitation Act ......................................  5
Title IX of the Education Amendments of 1972 ................ ...
Title VI of the Civil Rights Act of 1964 .................... ...

Other Authorities:
134 Cong. Rec. H583 (daily ed. Mar. 2, 1988)................ ...
Senate Report No. 100-64, P. 6 (100th Cong., 1987) ..........  4



Docket No. 88-7815

UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

ROBERT LEAKE,
Plaintiff-Appellee,

-V-

LONG ISLAND JEWISH MEDICAL CENTER,
Defendant-Appellant.

On Appeal from the United States District Court 
Eastern District of New York

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE 
FOR THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.

The NAACP Legal Defense and Educational Fund, Inc., moves 
the Court for leave to file the attached Brief Amicus Curiae in 
support of the plaintiff-appellee in this case. In support of 
this motion movant would show the following.

1. The NAACP Legal Defense and Educational Fund, Inc., 
(LDF) is a not-for-profit corporation established under the laws 
of New York as a legal aid society. Its principle purpose is to 
secure the civil and constitutional rights of Black persons 
through litigation and education. For nearly fifty years, its 
attorneys have represented parties or amicus curiae in thousands 
of civil rights cases presenting a variety of significant issues.

2. LDF handled the cases that established the law 
concerning the application of new statutes or regulations to



pending civil rights cases. Bradley v. School Board of Richmond. 
416 U.S. 696 (1974); Thorpe v. Housing Authority of the City of 
Durham, 393 U.S. 268 (1969). Thus, its interest and expertise
encompasses both the effectiveness of the Civil Rights 
Restoration Act of 1988 and the proper standards for deciding 
whether a newly-enacted statute should be applied to a pending 
case.

For the foregoing reasons, we believe that our views will be 
of assistance to the Court and pray that leave be granted to file 
the attached brief amicus curiae.

Respectfully submitted,

s:
Julius LeVonne Champers 
Charles Stephen Ralston

99 Hudson St., 16th Floor 
New York, N.Y. 10013 
(212)-219-1900

Attorneys for Movant NAACP 
Legal Defense and Educational 
Fund, Inc.

2



Docket No. 88-7815

UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

ROBERT LEAKE,
Plaintiff-Appellee,

-V-

LONG ISLAND JEWISH MEDICAL CENTER,
Defendant-Appellant.

On Appeal from the United States District Court 
Eastern District of New York

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

ISSUE PRESENTED FOR REVIEW
Amicus adopts the statement of Plaintiff-Appellee of the 

Issue Presented For Review.

STATEMENT OF THE CASE
£micus adopts the Statement of the Case of Plaintiff- 

Appellee .

ARGUMENT
THE CIVIL RIGHTS RESTORATION ACT OF 1988 
SHOULD BE APPLIED TO CASES PENDING AT THE 

TIME OF ITS ENACTMENT
the court below framed the question presented by 

this case as whether the newly-enacted Civil Rights Restoration 
Act of 1987 should be applied "retroactively", retroactivity in



its technical meaning is not the issue. Rather, the issue is 
whether the long-standing rule that a federal court must apply 
the law as it exists at the time of decision, unless special 
circumstances exist so as to make such a result unjust, should be 
followed here. See Bradley v. School Board of Richmond. 416 U.S. 
696, 710-711 (1974).

The rule was first established by the United States Supreme 
Court in United States v. Schooner Peaav. 5 U.S. (1 Cranch) 103 
(1801). There, Chief Justice Marshall stated, "if, subsequent to 
the judgment, and before the decision of the appellate court, a 
law intervenes and positively changes the rule which governs, the 
law must be obeyed, or its obligation denied." id. at 106.

The Supreme Court has applied this rule under a wide variety 
of circumstances. For example, in Thorpe v. Housing Authority of 
Durham, 393 U.S. 268 (1969), after the plaintiff public housing
authority had won an eviction order in state courts, the 
Department of Housing and Urban Development altered the 
procedural prerequisites to such evictions. The Court held that 
the defendant could not be evicted unless the new procedures were 
followed. 393 U.S. at 281. See also, United States v, Alabama. 
362 U.S. 602, 604 (1960)(newly enacted 1960 Civil Rights Act 
authorizing suits against a state applied on appeal); Ziffrin v. 
United— States, 318 U.S. 73, 78 (194 3) (amendment to Interstate
Commerce Act defeating petitioner's claim applied to pending
case) ; Vanderbark—v_._Owens-Illinois Glass Company. 311 U.S. 538
(1941); Carpenter v. Wabash Railway Co.. 309 U.S. 23, 27 (1940),

2



and cases cited; American Steel Foundries v. Tri-Citv Cent.
Trades Council, 257 U.S. 184, 201 (1921); Reynolds v. United
States. 292 U.S. 443, 449 (1934).

Except where the statute involved expressly purports to be 
of exclusively prospective application, see, e.g. . Goldstein v. 
California, 412 U.S. 546, 552 (1973), the Supreme Court has
routinely applied new laws to all pending cases without reference 
to legislative history and without reguiring express statutory 
language that they be so applied. When Congress has concluded 
that greater justice would be done if a new legal principle were 
applied to some recurring circumstances, Congress must be
presumed to have intended that that new standard and the more 
equitable result entailed be applied to all cases, including 
those pending at the time the statute was enacted. Compare
Johnson v. United States, 163 F.2d 30, 32 (1st Cir. 1908)(Holmes, 
J. ) .

The principle that a court is to apply the law as of the 
time it decides the case was discussed at length by the Supreme
Court in Bradley__v._School Board of Richmond. 416 U.S. 696
(1974). In Bradley, as noted by the court below, the Supreme 
Court rejected the argument that a new law should be applied to a 
pending case only when it was the "clear and stated intention of 
the legislature." Id. at 715. Rather, the rule is the opposite; 
new law will be applied unless a contrary intent is made clear by 
Congress or its application would result in "manifest injustice." 
Id. at 711. Neither exception is applicable here.

3



With regard to Congressional intent, to the extent the 
legislative history indicates anything, it is that the statute 
was to apply to pending cases since its purpose was to restore 
the law to what it was before the Supreme Court decided Grove 
City College v. Bell. 465 U.S. 555 (1984). See, Senate Report 
No. 100-64, P. 6 (100th Cong., 1987). Thus, the Act did not

new rights, but rather returned the law to conform to 
Congress7 original intent and to the consistent administrative 
practice and court decisions that existed before the Supreme 
Court7 s new and restrictive reading of the federal funding 
statutes. Id. at 6-13.

That Congress7 intent was that the 1987 Act apply to pending 
cases is strongly suggested by the discussion of the urgent need 
for the Act in the Senate Report at pp. 13-18. The report speaks
of cases in the formal enforcement stage that "are still in
jeopardy," and of "clear violations of federal law [that] go
uncorrected.77 id. at 13. And, as the court below noted, the
only express statement in the legislative history expresses the 
intent that the Act "applies to all pending cases." Remarks of 
Cong. Edwards, 134 Cong. Rec. H583 (daily ed. Mar. 2, 1988)

With regard to whether it would be unjust to apply the law 
to a pending case, it is similarly clear that it would be unjust 
not to. The purpose of the Civil Rights Restoration Act was to 
restore the law to what it was before Grove City; thus, the 
statute restored rights that had existed before that decision. 
In contrast, those cases in which the Supreme Court has refused

4



to give effect to new law are ones in which the result would be 
to defeat existing rights. Thus, for example, as explained by 
the Court in Thorpe (393 U.S. at 282), in Greene v. United 
States, 376 U.S. 149 (1963) the Court refused to apply new and 
more strenuous administrative procedures for obtaining 
remuneration to a claimant who had already obtained a "final" and 
favorable determination under the old procedures. More recently, 
in Bennet v. New Jersey. 470 U.S. 632 (1985), the Court refused 
to apply statutory changes in the requirements for federal grants 
to a pending case in the absence of clear congressional intent to 
do so because such a result would be unjust, and distinguished 
Bradley on that basis.

Amicus urges that it is imperative that the Civil Rights 
Restoration Act of 1987 be applied in all cases brought or 
pending at or after the time of its enactment. The statute is 
remedial and seeks to correct an interpretation of the law by the 
Supreme Court that Congress believed had had deleterious effects 
on the enforcement of the civil rights laws and, therefore, on 
the substantive rights of those the laws sought to protect. 
Failure to hold that existing programs that receive federal aid 
are subject to the obligations of the Act will result in the 
continuing and future denial of the civil rights of thousands of 
persons for whose benefit the Rehabilitation Act, Title IX of the 
Education Amendments of 1972, the Age Discrimination Act, and 
Title VI of the Civil Rights Act of 1964 were enacted.

5



CONCLUSION
For the foregoing reasons, the decision of the district 

court should be affirmed.
Respectfully submitted,

Julius LeVonne Chambers 
Charles Stephen Ralston

99 Hudson St., 16th Floor 
New York, N.Y. 10013
(212)-219-1900

6



CERTIFICATE OF SERVICE
I hereby certify that I have served copies on the foregoing 

brief amicus curiae on the parties by depositing the same in the
United States mail, first class postage prepaid, addressed as
follows:

L. DONALD PRUTZMAN, JR., ESQ.
JOSIAH GREENBERG, ESQ.
STECHER JAGLOM & PRUTZMAN 
900 Third Avenue 
New York, N.Y. 10022

Attorneys for Plaintiff-Appellee
DAVID H. DIAMOND, ESQ.
SUMMIT ROVINS & FELDESMAN
445 Park Avenue
New York, N.Y. 10022

Attorneys for Defendant-Appellant
Done this day of December, 19”"

'̂Charles Stephen Ralston
Attorney for Amicus Curiae 
NAACP Legal Defense and 
Educational Fund, Inc.

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