Landgraf v. USI Film Products Brief for Amicus Curiae Supporting Petitioners

    Nos. 92-757 and 92-938

In % fttprott* (Emtrt at tbp Tl&nxUb Zlatas
October Term , 1992

Barbara Landgraf, petitioner

v.
USI F ilm  Products, et al.

M aurice R ivers, et al., petitioners

v.
Roadway E xpress, Inc .

ON WRITS OF CERTIORARI TO THE 
UNITED STATES COURTS OF APPEALS 
FOR THE FIFTH AND SIXTH CIRCUITS

BRIEF FOR THE UNITED STATES AND THE 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 

AS AMICI CURIAE SUPPORTING PETITIONERS

vY^illiam C. Bryson
Acting Solicitor General

J ames P. Turner 
Acting Assistant Attorney General

Lawrence G. Wallace 
Deputy Solicitor General

Robert A. Long, Jr.
Assistant to the Solicitor General

David K. Flynn 
Dennis J. Dimsey 
Rebecca K. Troth 

Attorneys
Department of Justice

Donald R. Livingston Washington, D.C. 20530
General Counsel (202) 511-2217
Equal Employment

Opportunity Commission 
Washington, D.C. 20507



QUESTION PRESENTED

Whether Sections 101 and 102 of the Civil Rights Act 
of 1991, Pub. L. No. 102-166, 105 Stat. 1071, apply to 
claims that were pending on the date of enactment.

(i)





TABLE OF CONTENTS

Interest of the United States and the Equal Employ­
ment Opportunity Commission ----- ----------- --------- 1

Statement......... ... ....... .................... .... ........... ........ ............ 2
Introduction and summary of argum ent..........................  6
Argument:

Sections 101 and 102 of the Civil Rights Act of 
1991 apply to claims that were pending at the time 
of enactment _____________ ______ ____________  10
A. Textual analysis of the Act indicates that, ex­

cept as otherwise specifically provided, the Act 
applies to pending cases ........... ............... ....... . 12

B. The legislative history does not express a clear
legislative intention that the Act should not 
apply to pending cases ___ _________ ____ __  15

C. In the absence of clear evidence of congressional
intent, it is proper for courts to presume that 
procedural and remedial provisions apply to 
pending cases ......... ............... ................ ...............  17

D. Sections 101 and 102 apply to petitioners’
claims------------ ------ -------------- --------------------  22
1. Section 102 applies to Landgraf’s sexual

harassment claims ....... ........... ............ ........ . 22
2. Section 101 applies to petitioners’ claims in

Rivers........ ................... .............. ................ . 25
Conclusion ___________ ___ _________ _______ .... 28

TABLE OF AUTHORITIES
Cases:

Ardestani V. INS, 112 S. Ct. 515 (1991) ................. 21-22
Atascadero State Hosp, V. Scanlon, 473 U.S. 234

(1985) ................. ................................................. - 22
Ayers V. Attain, 893 F.2d 732, vacated, 914 F.2d

676 (5th Cir. 1990) ................ ............ ... ...........  27

Page

(III)



Cases—Continued:
IV

Page
Baynes V. AT&T Technologies, Inc., 976 F.2d 1370

(11th Cir. 1992) ............................ .......................  15
Beazell v. Ohio, 269 U.S. 167 (1925) ......................  8,19
Bennett v. New Jersey, 470 U.S. 632 (1985).......
Bonet V. Texas Co., 308 U.S. 463 (1940) ....... .......  20
Bowen V. Georgetown University Hospital, 488

U.S. 204 (1988) ........... ......................... 3,7,8,12,18,21
Bradley V. School Board, 416 U.S. 696 (1974).. 3, 7, 8,12,

17,18,21
Butts V. City of New York Dep’t  of Housing 

Preservation & Dev., No, 92-7850 (2d Cir. Mar.
24, 1993) ...... ................ ..... .............. ....... ...............  14, 15

Chase Securities Corp. V. Donaldson, 325 U.S. 304
(1945) .................. ........................... .................... ............. 21

Claridge Apartments Co. v. Commissioner, 323
U.S, 141 (1964) ............. .......... ............................. 19

Collett, Ex parte, 337 U.S. 55 (1949) _____ ___  20
Consumer Product Safety Comm’n V. GTE Syl-

vania, Inc., 447 U.S. 102 (1980) ________ ____  13
DeVargas V. Mason & Hanger-Silas Mason Co.,

911 F.2d 1377 (10th Cir. 1990), cert, denied,
111 S, Ct. 799 (1991)................................ ..........  27-28

EEOC V. Arabian American Oil Co., I l l  S. Ct.
1227 (1991) .......................... ..................... ...... . 11

Estate of Reynolds V. Martin, 985 F.2d 470 (9th
Cir. 1993) .......... ......................................... .14,15,17, 28

FD1C V. Wright, 942 F.2d 1089 (7th Cir. 1991).... 10
Fray V. Omaha World Herald Co., 960 F,2d 1370

(8th Cir. 1992) __________ ____ ______ ..6, 15, 16, 26
Freeborn V. Smith, b9 U.S. (2 Wall.) 160 (1865).. 23
Gersman v. Group Health Ass’n, 975 F.2d 886

(D.C. Cir. 1992) ............... ................... ............. . 15
Greene v. United States, 376 U.S. 149 (1964).... 12,19-20
Hallowell V. Commons, 239 U.S. 506 (1916) _____ 20
Hastings V. Earth Satellite Corp., 628 F.2d 85

(D.C. Cir.), cert, denied, 449 U.S. 905 (1980).... 22, 23 
Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363 (5th 

Cir. 1992), petition for cert, pending, No. 92- 
737............... .....................................................3, 13,15-16



Cases—Continued:
v

Page
Kaiser Aluminum & Chemical Corp. V. Bonjorno,

494 U.S. 827 (1990) ........ ................... 7, 12,13,17, 19, 20
Kremer V. Chemical Construction Co., 456 U.S'.

461 (1982) ..... ....... ....... ....................... .......... . 24-25
Kungys V. United States, 485 U.S. 759 (1988).....„ 14
Luddington V. Indiana Bell Tel. Co., 966 F.2d 225 

(7th Cir.), petition for cert, pending, No. 92-
977______ ____ ___ _________ ___ _________  15, 23

Lussier V. Dugger, 904 F.2d 661 (11th Cir. 1990).. 27
Lytle V. Household Manufacturing, Inc., 494 U.S.

545 (1990) ............ ........................................... ..... 25, 26
Martin V. Wilks, 490 U.S. 755 (1989) ......... .......... 11
Meritor Savings Bank, FSB  V. Vinson, 477 U.S.

57 (1986) ........... ........ ...... ..................... .............  2
Miller V. United States, 294 U.S, 435 (1935)........... 19
Mojica V. Gannett Co., Inc., Nos. 91-3921 & 92-

1104 (7th Cir. Mar. 4, 1993)............................... 6, 9, 25
Mozee V. American Commercial Marine Service 

Co., 963 F.2d 929 (7th Cir.), cert, denied, 113 
S, Ct. 207 (1992) .... .............. ... ....5-6,13-14,16, 25, 26

O’Hare V. General Marine Transport Corp., 740 
F.2d 160 (2d Cir. 1984), cert, denied, 469 U.S.
1212 (1985) ....... ................ ............... ........... ........  26

Patterson V. McLean Credit Union, 491 U.S. 164
(1989) ......... ............... - __ _____ _____ _______ 5, 9, 10

Price Waterhouse V. Hopkins, 490 U.S. 228
(1989) ...................... ....................... ... .................. . 11

Railroad Co. V. Grant, 98 U.S. 398 (1879) ...........  20
Reding V. FDIC, 942 F.2d 1254 (8th Cir. 1991).... 10
Runyon V. McCrary, 427 U.S. 160 (1976) ....... ......  26
Russello V. United States, 464 U.S. 16 (1983)___  13
Sampeyrac V. United States, 32 U.S. (7 Pet.) 222

(1833)......................................     20
Schalk V. Reilly, 900 F.2d 1091 (7th Cir. 1990).... 10
Society for the Propagation of the Gospel V.

Wheeler, 22 F. Cas. 756 (C.C.D.N.H. 1814).........  12
United States V. The Schooner Peggy, 5 U.S. (1

Cranch) 102 (1801) ..........     18,24
Thorpe v. Housing Authority, 393 U.S. 268

(1969).....................................................................  17,21



Union Pac. R.R. v. Laramie Stock Yards Co., 231
U.S. 190 (1913) .......... ........ ................... .............  20

United States V. Burke, 112 S. Ct. 1867 (1992).... 23
United States V. Fordice, 112 S. Ct. 2727 (1992)...., 27
United States V. Heth, 7 U.S. (3 Crunch) 399

(1806) ............. ................ ............... ........................  20
United States V. Magnolia Petroleum Co., 276 U.S.

160 (1928) ............. .... ................... ............ ...........  19
United States V. Monsanto Co., 858 F.2d 160 (4th

Cir. 1988) __      10
United States V. Murphy, 937 F.2d 1032 (6th Cir.

1991) ...........     10
United States V. Nordic Village, Inc., 112 S. Ct.

1011 (1992)................ ............... ........... ........... . 7,14
United States Department of Energy V. Ohio, 112

S. Ct. 1627 (1992) ........... .... .......... ................... . 21
United States V. Security Indus. Bank, 459 U.S.

70 (1982) ...................... ................. ....... .......... . 12
United States V. Singer Co., 889 F.2d 1327 (4th

Cir. 1989) _____ ___ ____ _____ ______ ___ _ 10
Vogel v. City of Cincinnati, 959 F.2d 594 (6th

Cir.), cert, denied, 113 S, Ct. 86 (1992) ........ ...  6,16
Wards Cove Packing Co. V. Atonio, 490 U.S. 642

(1989) .......................................... ...........................  11
Womack V. Lynn, 504 F.2d 267 (D.C. Cir. 1974).. 22

Constitution and statutes:
U.S. Const. Amend. VII _______ ______________  25
Civil Rights Act of 1964, Tit. VII, 42 U.S.C.

2000e et seq. ....._________ ____ ____ ___ ______ 1, 26
42 U.S.C. 2000e(b) ............................. ...............  26

Civil Rights Restoration Act of 1987, Pub. L. No.
100-259, 102 Stat, 28 ....... ..... ........... ....... ......... 27

Civil Rights Act of 1991, Pub. L. No. 102-166,
105 Stat. 1071 ................. .............. ........ 1, 2, 5, 8,10, 23

§ 2,105 Stat. 1071............ ........................ ...... . 10
§ 3, 105 Stat. 1071............. .......... ........ .............  10
§ 101,105 Stat. 1071.......... 6, 7, 9,10,12,16,17, 25, 26
§ 102,105 Stat. 1072........6, 7,11,12,17, 22, 23, 24, 25

VI
Cases—Continued: Page



VII

Statutes—Continued: Page
§ 102 (a) (1), 105 Stat. 1072....... ....... ...............  2, 23
§ 102 (b) (1), 105 Stat. 1073...............-...... -......  11, 24
§ 102 (b) (3), 105 Stat. 1073.............. — ...........  H
§ 102 (c), 105 Stat. 1073 .................. ....... ...............  2
§ 104,105 Stat. 1074................    —............ ............. H
§ 105,105 Stat. 1074 ..................  —. H
§ 107,105 Stat. 1075-1076 ..................................  11
§ 108,105 Stat. 1076-1077...................  11
§ 109,105 Stat. 1078 ........ ............... ... ..... .........  H
§ 109 (c), 105 Stat. 1078............. .......... ...........................7,13,14,15
§ 113,105 Stat. 1079 ................... ------- ----- --  H
§ 204(b), 105 Stat. 1084........   14
§ 303 (b) (4), 105 Stat. 1089...............    14
§ 402 (a ) , 105 Stat. 1099 ................... ............... 7,13, 14
§ 402 (b ), 105 Stat. 1099 ..................... ....... 7,13,14,15

Education Amendments of 1972, Pub. L. No. 92-
318 and 92-531, 86 Stat. 235 and 1051 ................ 17

False Claims Act, 31 U.S.C. 3729-3733 ... ... ...........  10
Federal Courts Improvement Act of 1982, Pub. L.

No. 97-164, 96 Stat. 25 .................................... ..  19
Financial Institutions Reform, Recovery, and En­

forcement Act of 1989, Pub. L. No. 101-73, 103
Stat. 183 .............................................     10

28 U.S.C. 1961...... ............... ....... ......... ..... ... ...........  19
42 U.S.C. 1981.......... ........... ....I, 4, 5, 6, 9,10, 25, 26, 27, 28

Miscellaneous:
H. Black, Handbook on the Construction and In­

terpretation of the Laws (2d ed. 1911)....... ......  20
136 Cong. Rec,:

p. S9321 (daily ed. July 10,1990)   ...... ........  27
p. S9336 (daily ed. July 10,1990)................... 26
p. S16,419 (daily ed. Oct. 22,1990) ___ ______ 16

136 Cong. Rec.:
pp. H6746-H6747 (daily ed. Aug. 3, 1990)
p. H6768 (daily ed. Aug. 3,1990)...... ....... .
p. H6786 (daily ed. Aug. 2,1990).......... .....

16
16
16



137 Cong. Rec. (daily ed. June 4,1991) :
p. H3898....... .... ....................... ................... .......  16
p, H3908...... ........ ....... ............................ ....... . 16

137 Cong. Rec. (daily ed. Mar. 12,1991) :
p. S3021 ........ ...... ,............ ....... ................... ........ 16
p. S3023 .............       16

137 Cong. Rec. S15,285 (daily ed. Oct. 28, 1991).... 27
137 Cong. Rec. (daily ed. Oct. 29,1991) :

p. SI5,325..................     15
p. 815,338.........................................   24
p, S15,383 ......... ....... ........................................... 26, 27

137 Cong. Rec. (daily ed. Oct. 30,1991) :
p. 815,483 .......... .......... ............... .... ....... ............  27
p, S I5,489.........       27

EEOC Policy Document No. 915.002, Policy Guid­
ance on Application of Damages Provisions of 
the Civil Rights Act of 1991 to Pending Charges
and Pre-Act Conduct (Dec. 27, 1991)............ . 9

EEOC Policy Document No. 915.002, Rescission of 
Policy Guidance on Application of Damages 
Provisions of the Civil Rights Act to Pending 
Charges and Pre-Act Conduct (Apr. 19, 1993).. 9

H.R. Conf. Rep. No, 856, 101st Cong., 2d Sess.
(1990) ..... ........................ ....... .... ...................... ...  16

H.R. Rep. No. 644, 101st Cong., 2d Sess. Pt. 1
(1990) ...... ....................................... .......................  16

2 N. Singer, Sutherland Statutory Construction
(4th ed. 1986) .................. .................................... 12, 20

Srnead, The Rule Against Retroactive Legislation:
A Basic Principle of Jurisprudence, 20 Minn. L.
Rev. 775 (1936) ................. ................... ....... .......  20

Wald, Same Observations on the Use of Legisla­
tive History in the 1981 Supreme Court Term,
68 Iowa L. Rev. 195 (1983) .................... ............  15

VIII
Miscellaneous—Continued: Page



Jn tfj? &itpr?mi> ( ta rt of %  Itritrb Btntm
O c to b er  T e r m , 1992

No. 92-757
B arbara  L a n d g ra f , p e t it io n e r

v.
USI F il m  P r o d u c ts , e t  a l .

No. 92-938
M a u r ic e  R iv e r s , et  a l ., p e t it io n e r s

v.

R oadway  E x pr e ss , I n c .

ON WRITS OF CERTIORARI TO THE 
UNITED STATES COURTS OF APPEALS 
FOR THE FIFTH AND SIXTH CIRCUITS

BRIEF FOR THE UNITED STATES AND THE 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 

AS AMICI CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES AND THE 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

This case concerns the application of the Civil Rights 
Act of 1991 (Act) to claims that were pending on No­
vember 21, 1991, the effective date of the Act. The Act 
amended Title VII of the Civil Rights Act of 1964. 42 
U.S.C. 2000e et seq., as well as 42 U.S.C. 1981. The 
Department of Justice and the Equal Employment Op­
portunity Commission (EEOC) share substantial re-

(1)



2

sponsibility for the enforcement of Title VII. In addition, 
the United States is a defendant in Title VII actions 
brought by federal employees. The Court’s resolution of 
the question presented in these cases may also affect the 
application of other statutes enforced by the United 
States.

STATEMENT

1. In No. 92-757, petitioner Barbara Landgraf was 
employed by USI Film Products in Tyler, Texas, from 
September 1984 through January 1986. Throughout her 
employment, John Williams, a male co-worker, subjected 
her to “continuous and repeated inappropriate verbal 
comments and physical contact.” 92-757 Pet. App. A2. 
Landgraf complained repeatedly about the harassment 
to her direct supervisor, who took no action. Eventually, 
she reported the harassment to the personnel manager. 
The personnel manager investigated and found that four 
other women “corroborated Landgraf’s reports of Wil­
liams’ engaging in inappropriate touching and three 
women reported verbal harassment.” Ibid. Williams was 
not suspended or dismissed, as USI’s policy required, but 
instead received a written reprimand and was transferred 
to another department. Ibid. Shortly thereafter, Land­
graf resigned from the company and filed a charge of 
discrimination with the EEOC.

On July 21, 1989, Landgraf filed suit against USI 
alleging that she had been sexually harassed and con­
structively discharged in violation of Title VII. On May 
22, 1991, following a bench trial, the district court en­
tered judgment for the respondents. 92-757 Pet. 3-4. 
The court found that Landgraf had demonstrated that 
the sexual harassment “was severe enough to make USI 
a ‘hostile work environment’ for purposes of Title VII 
liability.” 92-757 Pet. App. A2. The court nevertheless 
ruled that she was not entitled to any relief, because it 
found that she had not been constructively discharged as 
a result of the harassment. The district court found that



3

“the sexual harassment by Williams was not severe 
enough that a reasonable person would have felt com­
pelled to resign,” id. at A4, and that Landgraf in fact 
resigned because of problems with her co-workers that 
were unrelated to the Title VII violation, id. at A4-A5.

Landgraf appealed, arguing that the district court erred 
in finding that she had not been constructively discharged. 
On November 21, 1991, while her appeal was pending, 
Congress enacted the Civil Rights Act of 1991, Pub. L. 
No. 102-166, 105 Stat. 1071. Landgrafs counsel noti­
fied the court of appeals of the potential applicability 
of the new Act to her case, asserting that Sections 
102(a)(1) and 102(c) of the Act entitled her to com­
pensatory and punitive damages and the right to a jury 
trial. 92-757 Pet. App. A2.

The court of appeals affirmed. 92-757 Pet. App. Al- 
A10. It agreed that Landgraf had “suffered significant 
sexual harassment” that was “sufficiently severe to sup­
port a hostile work environment claim under Title VII.” 
92-757 Pet. App. A3 (citing Meritor Savings Bank, FSB 
v. Vinson, 477 U.S. 57 (1986)). The court of appeals 
agreed with the district court, however, that the sexual 
harassment was “insufficient to support a finding of con­
structive discharge.” Id. at A5.

The court of appeals held that the enactment of the 
Civil Rights Act of 1991 did not entitle Landgraf to a 
jury trial in which she could seek compensatory and 
punitive damages. 92-757 Pet. App. A8-A10. The court 
first concluded that “there is no clear congressional in­
tent on the general issue of the Act’s application to 
pending cases.” Id. at A8 (citing Johnson v. Uncle Ben’s, 
Inc., 965 F.2d 1363 (5th Cir. 1992), petition for cert, 
pending, No. 92-737 (filed Sept. 29, 1992)). The court 
then noted that the principles governing the application 
of new statutes to pending cases are “somewhat uncer­
tain” in light of this Court’s decisions in Bradley v. 
School Board, 416 U.S. 696 (1974), and Bowen v. 
Georgetown University Hospital, 488 U.S. 204 (1988).



4

The court did not resolve this apparent conflict, how­
ever, because it found that even under the Bradley 
standard, the new provisions should not be applied in 
this case. 92-757 Pet. App. A8-A9.

The court was “not persuaded that Congress intended 
to upset cases which were properly tried under the law 
at the time of trial.” 92-757 Pet. App. A9. The court 
also concluded that it would be a “manifest injustice” 
to allow Landgraf to collect compensatory or punitive 
damages under the new Act, finding that “the amended 
damage provisions of the Act are a seachange in em­
ployer liability for Title VII violations.” 92-757 Pet. 
App. A9-A10.

2. In No. 92-938, petitioners Maurice Rivers and 
Robert Davison, who are black, were hired as garage 
mechanics by Roadway Express, Inc., in the early 1970s. 
In August 1986, Roadway managers directed Rivers and 
Davison to attend a disciplinary hearing about their work 
records. 92-938 Pet. App. 2a. Rivers and Davison re­
fused to attend the hearing on the ground that Roadway 
had failed to provide adequate written notice pursuant 
to the terms of a collective bargaining agreement. Road­
way held the hearing anyway and suspended both peti­
tioners for two days. Petitioners then filed and won 
grievances challenging the lack of notice. Ibid. Shortly 
thereafter, Roadway’s labor relations manager announced 
that he would hold disciplinary hearings within 72 hours. 
Rivers and Davison again refused to attend, alleging 
inadequate notice. On September 26, 1986, Roadway 
discharged Rivers and Davison, purportedly on the basis 
of their work records and their refusal to attend the 
hearings. Id. at 3a.

Rivers and Davison filed suit in February 1987, alleg­
ing, inter alia, that Roadway had discriminated against 
them on the basis of race in violation of 42 U.S.C. 1981 
and Title VII. Petitioners argued that the discharges were 
racially motivated, and that they were fired in retaliation 
for enforcing their contractual rights in the grievance 
hearing in violation of Section 1981. The district court



5

initially denied Roadway’s motion for summary judg­
ment, but dismissed petitioners’ Section 1981 discharge 
and retaliation claims after this Court decided Patterson 
v. McLean Credit Union, 491 U.S. 164 (1989). 92-938 
Pet. App. 3a-4a, 23a-24a. The district court then held 
a bench trial on the Title VII claims. On October 18, 
1990, the court entered judgment for respondent, finding 
that petitioners had failed to establish that their termina­
tions were racially motivated. Id. at 4a; 92-938 Br. in 
Opp. App. A1-A13.

Petitioners appealed the dismissal of their Section 1981 
claims, arguing that Patterson does not preclude a re­
taliatory discharge claim arising from attempts to enforce 
contractual rights. While the appeal was pending, Con­
gress passed the Civil Rights Act of 1991. Rivers and 
Davison then argued that the new Act, reversing the 
effect of Patterson, should be applied to their Section 1981 
claims. 92-938 Pet. App. 2a, 4a, 11a.

The court of appeals affirmed in part and reversed in 
part. 92-938 Pet. App. la-14a. It concluded that Patter­
son did not preclude petitioners’ Section 1981 claim that 
they were fired in retaliation for attempting to enforce 
their contract rights. Id. at 7a-9a. The court of appeals 
affirmed the district court’s dismissal of the discrimina­
tory discharge claims under Section 1981, however, hold­
ing that Patterson applied to claims that were pending 
at the time of that decision. Id. at 6a.

The court also held that the Civil Rights Act of 1991 
does not apply to claims that were pending at the time 
of enactment. 92-938 Pet. App. lla-14a. The court 
noted the seemingly conflicting rules of construction es­
tablished in Bradley and Bowen, and concluded that the 
legislative history of the Act “sheds little light on the 
matter, as Senators expressed conflicting views and no 
legislative committee reports exist explaining the bill.” 
Id. at 11 a-12a (citing Mozee v. American Commercial 
Marine Serv. Co., 963 F.2d 929 (7th Cir.), cert, denied,



6

113 S, Ct, 207 (1992); Fray v. Omaha World Herald 
Co., 960 F.2d 1370 (8th Cir. 1992); Vogel v. City of 
Cincinnati, 959 F.2d 594 (6th Cir.), cert, denied, 113 
S. Ct. 86 (1992)). Following Vogel, the court held 
that Bradley does not apply where “substantive rights and 
liabilities” would be affected. 92-938 Pet. App. 13a. The 
court concluded that application of the Civil Rights Act 
of 1991 to petitioners’ claims would “adversely affect 
substantive rights and liabilities.” 92-938 Pet. App. 14a. 
The court rejected petitioners’ argument that the retro­
activity analysis depends upon the particular section at 
issue, and not whether the Act as a whole is considered 
retroactive. Ibid.1

INTRODUCTION AND SUMMARY OF ARGUMENT1

Congress enacted the Civil Rights Act of 1991 pri­
marily to provide new procedures and remedies to vic­
tims of discrimination, including compensatory and puni­
tive damages and jury trials under Title VII. The Act 
was largely a response to a series of decisions of this 
Court that Congress viewed as unduly restricting the re­
lief available to plaintiffs alleging violations of their civil 
rights. The Act “creates few new rules against discrim­
ination, focusing instead on outlining new procedures and 
remedies to use in new trials.” Mojica v. Gannett Co., 
Nos. 91-3921 & 92-1104 (7th Cir. Mar. 4, 1993), slip 
op. 9 (Cummings, I., dissenting from order granting re­
hearing en banc).

These cases present the question whether Sections 101 
and 102 of the Act apply to cases that were pending on 
the date of enactment, as well as to cases filed after 
the date of enactment challenging pre-enactment con­

1 Judge Siler dissented from the court’s ruling that Patterson 
does not exclude claims under Section 1981 based on retaliation 
for attempting to enforce contract rights. 92-938 Pet. App. 14a-16a. 
That question is not at issue in this Court, which limited its grant 
of certiorari to the retroactivity question.



7

duct. In answering that question, the first step is to 
determine, if possible, what Congress intended. “[Wjhere 
the congressional intent is clear, it governs.” Kaiser 
Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 
837 (1990).

A textual analysis of the Act indicates that Sections 
101 and 102 apply to pending cases. Sections 109(c) 
and 402(b) expressly limit the retroactive effect of speci­
fied provisions of the Act. 105 Stat. 1078, 1099. More­
over, Section 402(a) states that, “[ejxcept as other­
wise specifically provided, this Act * * * shall take effect 
upon enactment,” 105 Stat. 1099. Failure to apply the 
other provisions of the Act to pending cases would render 
the qualifying clause “[ejxcept as otherwise specifically 
provided” unnecessary, in contravention of “the settled 
rule that a statute must, if possible, be construed in such 
fashion that every word has some operative effect.” 
United States v. Nordic Village, Inc., 112 S. Ct. 1011, 
1015 (1992).

The legislative history of the Act does not contradict 
that analysis. Individual legislators addressed the retro­
activity issue, but disagreed on how it should be resolved. 
Although the President vetoed an earlier bill containing 
an express retroactivity provision, Congress in turn failed 
to pass several bills containing express anti-retroactivity 
provisions.

Even if the text of the Act were not clear on the point, 
it would be appropriate to apply Sections 101 and 102 to 
pending cases. In deciding whether new statutes should 
govern pre-enactment conduct in the absence of clear 
evidence of congressional intent, courts have perceived 
a conflict between Bradley v. School Board, 416 U.S. 
696 (1974), and Bowen v. Georgetown University Hos­
pital, 488 U.S. 204 (1988). In Bradley, a case involving 
attorney’s fees, the Court affirmed “the principle that a 
court is to apply the law in effect at the time it renders 
its decision, unless doing so would result in manifest



8

injustice or there is statutory direction or legislative his­
tory to the contrary.” 416 U.S. at 711. In Bowen, in 
which the Department of Health and Human Services 
attempted to recapture payments made to hospitals under 
prior regulations, the Court said that “[rjetroactivity is 
not favored in the law. Thus, congressional enactments 
and administrative rules will not be construed to have 
retroactive effect unless their language requires this re­
sult.” 488 U.S. at 208.

These cases can be reconciled. In Bennett v. New 
Jersey, 470 U.S. 632 (1985), the Court held that the 
“substantive provisions of the 1978 Amendments to Title 
I of the Elementary and Secondary Education Act” do 
not apply to funds spent more than six years before en­
actment. 470 U.S. at 633-634. The Court distinguished 
the case from Bradley, relying on a “venerable rule of 
statutory interpretation, i.e., that statutes affecting sub­
stantive rights and liabilities are presumed to have only 
prospective effect.” 470 U.S. at 639.

Bennett suggests a rule that is both fair and consistent 
with Congress’s purpose in enacting new legislation: when 
Congress has not prescribed how new statutes are to be 
applied to pending cases, substantive provisions (such as 
those prohibiting conduct that was not illegal before) 
should not be applied to pending cases. On the other 
hand, procedural and remedial provisions may be applied 
to pending cases unless doing so would result in “mani­
fest injustice.” Bradley, 416 U.S. at 711. In most cases, 
it is not manifestly unjust to allow victims of discrimina­
tion to benefit from the remedies, or procedures that Con­
gress has authorized. In particular, there is no injustice 
in requiring the wrongdoer, rather than the victim, to 
bear the costs of injury caused by discriminatory conduct 
that was unlawful at the time it occurred.

In our view, the provisions of the Civil Rights Act of 
1991 at issue here should be applied to petitioners’ claims. 
Landgraf seeks damages for sexual harassment that the



9

district court found constituted a violation under existing 
law. She was denied a remedy for the harassment, even 
though both lower courts found it to be “significant” and 
“severe.” 92-757 Pet. App. A2-A3. Allowing her com­
pensation for her injury, as Congress provided in Section 
102, comports with basic notions of fairness. Similarly, 
the Rivers petitioners asserted a cause of action under 
Section 1981 for discriminatory discharge, which the 
district court dismissed after this Court decided Patter­
son v. McLean Credit Union, 491 U.S. 164 (1989). In 
enacting Section 101, Congress plainly registered its dis­
satisfaction with this Court’s decision in Patterson. Be­
cause Congress clearly intended to deny Patterson fur­
ther effect, and because in the present context Section 
101 provides a remedy for conduct that was illegal under 
Title VII, the new Act should be applied to petitioners’ 
claims.2

2 Shortly after the Act was passed, the EEOC issued a Policy 
Guidance announcing that the EEOC would not process charges for 
damages for conduct that occurred before November 21, 1991. 
EEOC Policy Document No. 915.002, Policy Guidance on Applica­
tion of Damages Provisions of the Civil Rights Act of 1991 to 
Pending Charges and Pre-Act Conduct (Dec. 27, 1991). That 
document did not purport to explain an area in which the EEOC 
has expertise (i.e., Title VII). Instead, it represented the EEOC’s 
analysis of this Court’s decisions on retroactivity. The EEOC’s 
initial conclusion that it would follow Bowen because it was decided 
after Bradley does not preclude a different analysis here, particu­
larly in light of the EEOC’s recent rescission of the Policy Guid­
ance. EEOC Policy Document No. 915.002, Rescission of Policy 
Guidance on Application of Damages Provisions of the Civil Rights 
Act to Pending Charges and Pre-Act Conduct (Apr. 19, 1993).

In addition, the United States has taken the position in a num­
ber of lower courts that the provisions of the Act generally do not 
apply to conduct that occurred before its effective date. See, e.g., 
U.S. Br. in Van Meter v. Barr, No. 92-5046 (D.C. Cir.) ; U.S. Br. 
in Mojica v. Gannett Co., Nos. 91-3921 and 92-1104 (7th Cir.). 
We have re-examined our position and have concluded that it is



10

ARGUMENT
SECTIONS 101 AND 102 OF THE CIVIL RIGHTS ACT
OF 1991 APPLY TO CLAIMS THAT WERE PENDING
AT THE TIME OF ENACTMENT

The President signed the Civil Rights Act of 1991 
into law on November 21, 1991. Congress found that 
“additional remedies under Federal law are needed to 
deter unlawful harassment and intentional discrimination 
in the workplace.” §2, 105 Stat. 1071. Accordingly, 
the Act “provide[s] appropriate remedies for intentional 
discrimination and unlawful harassment in the work­
place.” § 3, 105 Stat. 1071. Many provisions of the Act 
“respond to recent decisions of [this] Court by expand­
ing the scope of relevant civil rights statutes in order 
to provide adequate protections to victims of discrimina­
tion.” Ibid.

The Act comprises a variety of provisions addressing 
different issues that have arisen under the civil rights 
statutes in recent years. Section 101 of the Act responds 
to Patterson v. McLean Credit Union, 491 U.S. 164 
(1989), and provides that the phrase “make and enforce 
contracts” in 42 U.S.C. 1981 includes “the making, per-

both incorrect and contrary to the longstanding position of the 
government with respect to statutory retroactivity. See, e.g.,
U. S. Br. at 17 in Bennett v. New Jersey, No. 83-2064 (“statutes 
affecting substantive rights or obligations are considered prospec­
tive only,” while statutes “involving procedures, remedies, or 
prospective relief * * * appl[y] to pending cases”) ; United States
V. Murphy, 937 F.2d 1032, 1037-1038 (6th Cir. 1991) (amendments 
to False Claims Act, 31 U.S.C. 3729-3733) ; United States v. 
Singer Co., 889 F.2d 1327, 1333-1334 (4th Cir. 1989) (same) ; 
Schalk v. Reilly, 900 F.2d 1091, 1096 (7th Cir. 1990) (amendments 
to Comprehensive Environmental Response, Compensation, and 
Liability Act of 1980) ; United States v. Monsanto Co., 858 F.2d 
160, 175 (4th Cir. 1988) (same) ; Reding V. FDIC, 942 F.2d 1254, 
1256-1257 (8th Cir. 1991) (Financial Institutions Reform, Recov­
ery, and Enforcement Act of 1989) ; FDIC V. Wright, 942 F.2d 
1089, 1094-1097 (7th Cir. 1991) (same).



11

formance, modification, and termination of contracts, and 
the enjoyment of all benefits, privileges, terms, and con­
ditions of the contractual relationship.” 105 Stat. 1072. 
Section 102 amends Title VII to allow victims of dis­
crimination to seek compensatory and punitive damages, 
and permits either party to seek a jury trial if such dam­
ages are sought. 105 Stat. 1072.8 Sections 104 and 105, 
105 Stat. 1074, respond to this Court’s decision in Wards 
Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), and 
govern burdens of proof in disparate impact cases. Sec­
tion 106, 105 Stat. 1075, prohibits altering the results of 
employment-related test scores on the basis of race, color, 
religion, sex, or national origin. Section 107, 105 Stat. 
1075-1076, addresses the type of “mixed motive” case at 
issue in Price Waterhouse v. Hopkins, 490 U.S. 228 
(1989), and limits relief where the employer proves that 
the same action would have been taken in the absence of 
the discrimination. Section 108, 105 Stat. 1076-1077, re­
sponds to Martin v. Wilks, 490 U.S. 755 (1989), by lim­
iting the ability of non-parties who received adequate no­
tice to challenge Title VII judgments and consent decrees. 
Section 109, 105 Stat. 1077-1078, responds to EEOC v. 
Arabian American Oil Co., I l l  S. Ct. 1227 (1991), by 
extending Title VII to U.S. citizens working abroad. In 
Section 113, 105 Stat. 1079, Congress expanded the defi­
nition of attorney’s fees to include expert fees. 3

3 Section 102 permits a plaintiff to recover compensatory and 
punitive damages in an amount limited by the size of the employer. 
Plaintiffs may recover no more than $50,000 if the employer has 15 
to 100 employees, no more than $100,000 if the employer has more 
than 100 but fewer than 201 employees, no more than $200,000 if 
the employer has more than 200 but fewer than 501 employees, and 
no more than $300,000 if the employer has more than 500 employees. 
§ 102 (b) (3), 105 Stat. 1073. No punitive damages may be awarded 
against government entities. § 102(b) (1), 105 Stat. 1073.



12

A. Textual Analysis Of The Act Indicates That, Except 
As Otherwise Specifically Provided, The Act Applies 
To Pending Cases

The issue in these cases is whether particular provisions 
of the Act—Sections 101 and 102—apply to cases that 
were pending on the date of enactment and that arise out 
of conduct that occurred before the date of enactment. 
The issue is often framed in terms of whether the pro­
visions of the Act apply “retroactively.” 4 The first step 
in the inquiry is to determine, if possible, the intent of 
Congress. “[W]here the congressional intent is clear, it 
governs,” subject only to constitutional limitations. Kaiser 
Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 
837 (1990) (citing Bradley v. School Board, 416 U.S. 
696, 716-717 (1974), and Bowen v. Georgetown Univer­
sity Hospital, 488 U.S. 204, 208 (1988)). “The starting 
point for interpretation of a statute ‘is the language of 
the statute itself. Absent a clearly expressed legislative

4 The terminology used in this area—“retroactive” (or its syno­
nym, “retrospective”) versus “prospective” application of law— 
is not always used consistently. The classic definition was stated 
by Justice Story in Society for the Propagation of the Gospel V. 
Wheeler, 22 Fed. Cas. 756, 757 (C.C.D.N.H. 1814) (No. 13,156) : 

[EJvery statute, which takes away or impairs vested rights 
acquired under existing laws, or creates a new obligation, 
imposes a new duty, or attaches a new disability in respect to 
transactions or considerations already past, must be deemed 
retrospective.

Accord 2 N. Singer, Sutherland Statutory Construction § 41.01, 
at 337-338 (4th ed. 1986). This understanding holds whether the 
change in law occurs during the pendency of litigation, e.g., Greene 
V. United States, 376 U.S. 149 (1964), or precedes any litigation, 
e.g., United States V. Security Indus. Bank, 459 U.S. 70 (1982). 
It should be noted, however, that “retroactive” is sometimes de­
fined more restrictively, to mean “the application of a change in 
law to overturn a judicial adjudication of rights that has already 
become final.” Kaiser Aluminum, 494 U.S. at 864 (White, J., 
dissenting).



13

intention to the contrary, that language must ordinarily 
be regarded as conclusive.’ ” Kaiser Aluminum, 494 U.S. 
at 835 (quoting Consumer Product Safety Comm’n v. 
GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)).

Textual analysis of the Act indicates that the Act 
applies to pending cases (and to cases filed after enact­
ment based on pre-enactment conduct) except as other­
wise specifically provided by Congress. Section 402 of 
the Act, the “Effective Date” provision, states:

(a) IN GENERAL.—Except as otherwise spe­
cifically 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 im­
pact case for which a complaint was filed before 
March 1, 1975, and for which an initial decision 
was rendered after October 30, 1983.

105 Stat. 1099. In addition, Section 109(c), part of the 
section expanding Title VIPs coverage to U.S. citizens 
working overseas, provides that “[t]he amendments made 
by this section shall not apply with respect to conduct 
occurring before the date of the enactment of this Act.” 
105 Stat. 1078.

Sections 109(c) and 402(b) expressly limit the retro­
active effect of specified provisions of the Act. The in­
clusion of those provisions suggests that the other provi­
sions of the Act are retroactive. See Russello v. United 
States, 464 U.S. 16, 23 (1983) (“[W]here Congress in­
cludes 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”).

Some courts have concluded that Sections 109(c) and 
402(b) merely ensure that certain provisions of the Act 
will not be applied retroactively. See, e.g., Johnson v. 
Uncle Ben’s, Inc., 965 F.2d at 1372-1373; Mozee v. Ameri-



14

can Commercial Marine Service Co., 963 F.2d 929, 
932-933 (7th Cir.), cert, denied, 112 S. Ct. 207 (1992). 
But that construction of the statutory language is incon­
sistent with Section 402(a). Section 402(a) provides: 
“Except as otherwise specifically provided, this Act and 
the amendments made by this Act shall take effect upon 
enactment.” 105 Stat. 1099. Standing alone, the phrase 
“shall take effect upon enactment” might mean that the 
Act applies retroactively, or merely that it applies to 
conduct that occurs on or after the effective date. As 
the Ninth Circuit recognized in Estate of Reynolds v. 
Martin, 985 F.2d 470 (1993), however, that ambiguity 
disappears when one considers the qualifying clause 
“[ejxcept as otherwise specifically provided.” It is a 
“settled rule that a statute must, if possible, be construed 
in such fashion that every word has some operative ef­
fect.” United States v. Nordic Village, Inc., 112 S. Ct. 
1011, 1015 (1992). See also Kungys v. United States, 
485 U.8. 759, 778 (1988). “The qualifying clause of 
Section 402(a), if it is to mean anything, must mean 
that the Act contains counterexamples that specifically 
provide for exceptions to the general rule enunciated 
elsewhere in section 402(a).” Reynolds, 985 F.2d at 
473. The express prospectivity provisions of Sections 
109(c) and 402(b) are the only plausible exceptions to 
the general rule of Section 402(a).5 Accordingly, the 
text of the statute indicates that, except as otherwise 6

6 In Butts V. City of New York Dep’t of Housing Preservation 
and Dev., No. 92-7850 (2d Cir. Mar. 24, 1993), the court suggested 
that the qualifying clause of Section 402 (a) might apply to Section 
204(b) (which requires the Glass Ceiling Commission to submit a 
report not later than 15 months after enactment) and to Section 
303 (b) (4) (which requires an official to be appointed within 90 
days after enactment). 105 Stat. 1084, 1089. That suggestion is 
unpersuasive. The time periods specified in Sections 204(b) and 
303 (b) (4) began to run on November 21, 1991. Consequently, 
those provisions were effective upon enactment and cannot serve 
as counterexamples to the general rule of Section 402(a).



15

specifically provided (in Sections 109(c) and 402(b)),
the Act applies to pending cases.

B. The Legislative History Does Not Express A Clear 
Legislative Intention That The Act Should Not Apply 
To Pending Cases

The legislative history of the Act does not undermine 
the foregoing textual analysis. No conference report or 
committee reports accompanied the Act. Although indi­
vidual legislators addressed the retroactivity question, 
they did not agree on how it should be resolved. See 
Fray v. Omaha World Herald Co., 960 F.2d 1370, 1376 
n.10 (8th Cir. 1992) (collecting citations to conflicting 
statements and “interpretive memoranda” of various leg­
islators). Any attempt to draw inferences from this 
welter of conflicting statements would validate the obser­
vation of the late Judge Leventhal that reviewing legis­
lative history is like “looking over a crowd and picking 
out your friends.” Wald, Some Observations on the Use 
of Legislative History in the 1981 Supreme Court Term, 
68 Iowa L. Rev. 195, 214 (1983). Indeed, Senator 
Danforth, an opponent of retroactivity, candidly stated 
(137 Cong. Rec. 815,325 (daily ed. Oct. 29, 1991)):

[A] court would be well advised to take with a 
large grain of salt floor debate and statements placed 
into the Congressional Record which purport to 
create an interpretation for the legislation that is 
before us.

Most courts of appeals have heeded that warning and 
properly refused to accord any weight to the Act’s legis­
lative history, in which one can find ample support for 
either position.8 In Fray, however, the Eighth Circuit 6

6 See Luddington V. Indiana Bell Tel, Co., 966 F.2d 225, 227 
(7th Cir.), petition for cert, pending, No. 92-977 (filed Dec. 3,
1992) ; Butts V. City of New York, No. 92-7850 (2d Cir. Mar. 24,
1993) , slip op. 2219; Reynolds, 985 F.2d at 477; Baynes V. AT&T 
Technologies, Inc., 976 F.2d 1370, 1372 (11th Cir. 1992) ; Gersman 
V. Group Health Ass’n, 975 F.2d 886, 892 (D.C. Cir. 1992) ; John-



16

concluded that the legislative history demonstrated that 
Section 101 should not be applied retroactively because 
the President had vetoed an earlier bill containing an 
explicit retroactivity provision.7 In that court’s view, 
“ [w]hen a bill mandating retroactivity fails to pass, and 
a law omitting that mandate is then enacted, the legisla­
tive intent was surely that the new law be prospective 
only.” 960 F.2d at 1378. The Eighth Circuit overlooked 
the fact that Congress failed to pass bills containing 
explicit anti-retroactivity provisions.8 Consequently, the 
legislative history does not reveal a clear congressional 
intention that the Act should not be applied retroactively.

son, 965 F.2d at 1372; Mozee, 963 F.2d at 934; Vogel V. City of 
Cincinnati, 959 F.2d 594, 597-598 (6th Cir.), cert, denied, 113 
S. Ct. 86 (1992).

7 In 1990, Congress passed a bill that expressly applied to pend­
ing cases, as well as to certain cases in which final judgment had 
been entered and the time to appeal had expired. H.R. Conf. Rep. 
No. 856, 101st Cong., 2d Sess. 9 (1990). The President vetoed the 
bill and referred to the retroactivity provision as “unfair.” 136 
Cong. Rec. S16,419 (daily ed. Oct. 22, 1990). The veto was 
sustained.

8 In early 1991, Senator Dole introduced a bill containing lan­
guage expressly limiting the new provisions to conduct that occurred 
after enactment. 137 Cong. Rec. S3021, S3023 (daily ed. Mar. 12, 
1991). The Senate never voted on the bill. In June 1991, Repre­
sentative Michel proposed the same anti-retroactivity language as 
part of a substitute bill in the House, but the substitute was 
rejected by a vote of 266 to 162. 137 Cong. Rec. H3898, H3908 
(daily ed. June 4, 1991).

Proposals to include express anti-retroactivity provisions in the 
1990 bill were also unsuccessful. The Michel-LaFalee bill would 
have exempted all pre-existing claims from coverage. 136 Cong. 
Rec. H6746-H6747 (daily ed. Aug. 3, 1990). That bill was rejected 
by a vote of 238 to 188. 136 Cong. Rec. H6768 (daily ed. Aug. 3, 
1990). Two other proposals to limit the retroactive effect of the 
legislation were also unsuccessful. See 136 Cong. Rec. H6786 (daily 
ed. Aug. 2, 1990) (statement of Rep. Moorhead) ; H.R. Rep. No. 
644, 101st Cong., 2d Sess. Pt. 1, at 90 (1990).



17

Although individual legislators had different beliefs about 
the meaning of the Act, “those individual members’ be­
liefs [are] unimportant, given the clear text of the Act.” 
Reynolds, 985 F.2d at 478.

C. In The Absence Of Clear Evidence Of Congressional 
Intent, It Is Proper For Courts To Presume That 
Procedural And Remedial Provisions Apply To Pend­
ing Cases

Even if the textual analysis set forth above were not 
dispositive, it would nevertheless be appropriate to apply 
Sections 101 and 102 in these cases. Although this 
Court has noted an “apparent tension” in its prior deci­
sions concerning the retroactive effect of statutes, Kaiser 
Aluminum, 494 U.S. at 837, the tension is just that— 
more apparent than real. Under this Court’s decisions, 
the presumption against retroactive application of new 
statutes generally applies only to substantive provisions. 
In contrast, procedural and remedial provisions generally 
apply to pending cases and to cases filed after the effec­
tive date of the legislation.

1. In Bradley v. School Board, 416 U.S. 696 (1974), 
a unanimous Court held that the attorney’s fee provisions 
of the Education Amendments of 1972 could be applied 
in a case pending on appeal to allow plaintiffs to recover 
attorney’s fees incurred prior to the effective date of the 
Act. The Court relied on “the principle that a court is 
to apply the law in effect at the time it renders its deci­
sion, unless doing so would result in manifest injustice 
or there is statutory direction or legislative history to the 
contrary.” 416 U.S. at 711.9

9 The Court in Bradley relied on its prior decision in Thorpe V. 
Housing Authority, 393 U.S. 268 (1969). In Thorpe, the Depart­
ment of Housing and Urban Development had issued a circular 
while the petitioner’s case was pending in this Court. The circular 
required local housing authorities to afford tenants in federally 
assisted housing projects prior notice of the reasons for an eviction



18

In Bradley, the Court identified three factors relevant 
to determining whether applying the law in effect at the 
time of the court’s decision would result in manifest 
injustice: “ (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. As to the first concern, the Court agreed with 
Chief Justice Marshall’s statement in United States v. 
The Schooner Peggy, 5 U.S. (1 Cranch) 102, 110 
(1801), that in “great national concerns * * * the court 
must decide according to existing laws,” although the 
courts should “struggle hard against a construction which 
will, by a retrospective operation, affect the rights of 
parties * * * in mere private cases between individuals.” 
416 U.S. at 717, 719. As to the second concern, the 
Court asked whether application of an intervening change 
in the law “would infringe upon or deprive a person of 
a right that had matured or become unconditional.” Id. 
at 720. The third concern “stems from the possibility 
that new and unanticipated obligations may be imposed 
upon a party without notice or an opportunity to be 
heard.” Ibid.

2. In Bowen v. Georgetown University Hospital, 488 
U.S. 204 (1988), the Department of Health and Human 
Services (HHS) issued a cost-limit schedule under the 
Medicare Act that would have recouped payments already 
made to hospitals under an earlier version of the regula­
tions. The Court unanimously held that HHS had no 
statutory authority to promulgate retroactive regulations. 
The Court observed that “[rjetroactivity is not favored in 
the law. Thus, congressional enactments and administra­
tive rules will not be construed to have retroactive effect 
unless their language requires this result.” 488 U.S. at

and an opportunity to respond. The Court held that the circular 
applied to petitioner, even though the housing authority had already 
secured an eviction order that had been affirmed by the North 
Carolina Supreme Court,



19

208 (citing Greene v. United States, 376 U.S. 149, 160 
(1964); Claridge Apartments Co. V. Commissioner, 323 
U.S. 141, 164 (1944); Miller v. United States, 294 U.S. 
435, 439 (1935); United States v. Magnolia Petroleum 
Co., 276 U.S. 160, 162-163 (1928)).

3. In Kaiser Aluminum, 494 U.S. at 827, the Court 
considered whether the postjudgment interest provisions 
of the Federal Courts Improvement Act of 1982, amend­
ing 28 U.S.C. 1961, applied to judgments entered before 
the effective date of the Act. In Kaiser Aluminum, the 
Court was not required to “reconcile” the “apparent 
tension” between Bradley and Bowen, because the lan­
guage of the statute “evidence[d] clear congressional in­
tent that amended § 1961 is not applicable to judgments 
entered before its effective date.” 494 U.S. at 837-838.

4. The Court’s decision in Bennett v. New Jersey, 
470 U.S. 632 (1985), provides a basis for resolving the 
apparent tension between Bowen and Bradley. In Ben­
nett, the Court held that the “substantive provisions” of 
the 1978 Amendments to Title I of the Elementary and 
Secondary Education Act did not apply “retroactively 
for determining if Title I funds were misused during the 
years 1970-1972.” 470 U.S. at 633-634. The Court 
concluded that “[bjoth the nature of the obligations that 
arose under the Title I program and Bradley itself sug­
gest that changes in substantive requirements for federal 
grants should not be presumed to operate retroactively.” 
470 U.S. at 638. The Court noted Bradley's express 
limitation that an “intervening change” should not ap­
ply to a pending action when “to do so would infringe 
upon or deprive a person of a right that had matured or 
become unconditional.” 470 U.S. at 639 (quoting Brad­
ley, 416 U.S. at 720). “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.” 470 U.S. at 
639. See also Greene v. United States, 376 U.S. 149,



160 (1964) (“a retrospective operation will not be given 
to a statute which interferes with antecedent rights” ); 
Union Pac. R.R. v. Laramie Stock Yards Co., 231 U.S. 
190, 199 (1913) (same); United States v. Heth, 1 U.S. 
(3 Crunch) 399, 413 (1806) (same).

Bennett is consistent with a long line of decisions of 
this Court applying new statutory provisions that are pro­
cedural or remedial in nature in pending litigation. See, 
e.g., Ex parte Collett, 337 U.S. 55, 71 (1949) (forum 
non conveniens rule); Bonet v. Texas Co., 308 U.S. 
463, 467 (1940) (method of collecting compensation 
awards); Hallowed v. Commons, 239 U.S. 506, 508 
(1916) (statute transferring jurisdiction from district 
court to executive agency); Railroad Co. v. Grant, 98 
U.S. 398, 401 (1879) (statute conferring exclusive au­
thority on Secretary of the Interior); Sampeyrac v. United 
States, 32 U.S. (7 Pet.) 222, 239 (1833) (“Almost 
every law, providing a new remedy, affects and operates 
upon causes of action existing at the time the law is 
passed.” ). See also 2 N. Singer, Sutherland Statutory 
Construction §41.04, at 349 (4th ed. 1986) (procedural 
statutes and remedial provisions that do not take away 
vested rights apply to pending actions); H. Black, Hand­
book on the Construction and Interpretation of the Laws 
§ 120, at 403-408 (2d ed. 1911) (laws authorizing new' 
or enlarged remedies for existing causes of action or 
changing rules of procedure or evidence apply to pending 
actions, unless vested rights would be disturbed).10

10 The decisions discussed in Justice Scalia’s concurring opinion 
in Kaiser Aluminum, see 494 U.S. at 842-844, are not to the con­
trary. Those decisions concerned the application of what were 
deemed to be statutes changing substantive rights, rather than 
procedural or remedial statutes, to pending cases. An article cited 
by Justice Scalia makes that point clear. See 494 U.S. at 842. 
The author of the article explains that retroactivity doctrine in 
the United States developed as “an inhibition against a construc­
tion which * * * would violate vested rights.” Smead, The Rule 
Against Retroactive Legislation: A Basic Principle of Jurispru­
dence, 20 Minn. L. Rev. 775, 784 (1936).

20



21

Accordingly, substantive changes—e.g., a statutory 
change that makes illegal conduct that formerly was 
legal—should not be applied to a case in which the 
underlying conduct occurred before the statute’s effective 
date. See Bowen, 488 U.S. at 204. But procedural or 
remedial changes should be applied to a pending case 
unless Congress has specified otherwise, or unless their 
application would result in “manifest injustice.” Bradley, 
416 U.S. at 711; Thorpe, 393 U.S. at 282. This ap­
proach to reconciling Bradley and Bowen focuses on the 
nature of the particular statutory provision at issue, 
rather than on the statute as a whole. It reflects the 
reality that Congress may enact statutes that contain a 
mixture of substantive, procedural, and remedial provi­
sions. We therefore disagree with the suggestion (see 
92-938 Pet. App. 14a) that courts should always make a 
single retroactivity determination for an entire statute.

We acknowledge that it will not always be obvious 
whether a provision should be classified as substantive, 
procedural, or remedial. But as the Court noted in an­
other context in Chase Securities Corp. v. Donaldson, 325 
U.S. 304, 314 (1945), “[t]he abstract logic of the dis­
tinction between substantive rights and remedial or pro­
cedural rights may not be clear-cut, but it has been found 
a workable concept to point up the real and valid differ­
ence between rules in which stability is of prime im­
portance and those in which flexibility is a more impor­
tant value.” In addition, we do not suggest that any 
new provision that may be labeled “remedial” or “pro­
cedural” must be applied to all pending cases. Courts 
have flexibility not to apply a new procedural or remedial 
provision in order to avoid manifest injustice.11

11 In addition, a different presumption may be appropriate if the 
suit is against the government, because statutory waivers of 
sovereign immunity are strictly construed, and must be express 
rather than implied. See United States Department of Energy V. 
Ohio, 112 S. Ct. 1627, 1633 (1992) ; Ardestani V. INS, 112 S. Ct.



22

D. Sections 101 and 102 Apply To Petitioners’ Claims

1. Section 102 Applies to Landgraf’s Sexual Harass­
ment Claims

In Landgraf, both the court of appeals and the district 
court held that petitioner was sexually harassed in viola­
tion of Title VII. While the case was pending on appeal, 
Congress passed the Act. Section 102 of the Act permits 
victims of sexual harassment to recover compensatory 
and punitive damages, as well as backpay. The Act thus 
expands the remedies available for acts of intentional 
discrimination, but does not alter the scope of the em­
ployee’s basic right to be free from discrimination or the 
employer’s corresponding legal duty.

Because compensatory damages are an additional rem­
edy for intentional misconduct that was illegal under 
Title VII before the effective date of the 1991 Act, apply­
ing the new provisions to pending cases is appropriate 
under Bradley and Bowen. “Modification of remedy 
merely adjusts the extent, or method of enforcement, of 
liability in instances in which the possibility of liability 
previously was known.” Hastings v. Earth Satellite Corp., 
628 F.2d 85, 93 (D.C. Cir.), cert, denied, 449 U.8. 905 
(1980) (removal of ceiling for workers’ compensation 
disability is remedial and immediately applicable). See 
also Womack v. Lynn, 504 F.2d 267, 269 (D.C. Cir. 
1974) (new remedy for discrimination applied to pending 
case because federal employees’ “right to be free of such 
discrimination has been assured for years”) (emphasis 
omitted). Thus, while “[rjetroactive creation of legal 
responsibilities or abolition of legal rights risks unfairness 
because the retroactive change confounds the expecta-

515, 520 (1991). See also Atascadero State Hosp. V. Scanlon, 473 
U.S. 234, 242 (1985) (“Congress may abrogate the States’ con­
stitutionally secured immunity from suit only by making its in­
tention unmistakably clear in the language of the statute.”).



23

tion upon which persons acted,” changes in remedies
“often do not involve the same degree of unfairness.” 
Hastings, 628 F.2d at 93.12

The court of appeals concluded that applying the dam­
ages provisions of Section 102 to conduct that occurred 
before the effective date of the Act would be unfair to 
employers who did not foresee that they might be liable 
for more than backpay. See 92-757 Pet. App. A10 (com­
pensatory damages represent “a seachange in employer 
liability”); see also Luddington, 966 F.2d at 228-229. 
But Section 102 applies only to intentional acts of dis­
crimination that were illegal under Title VII at the time 
they were committed. “[TJhere is no such thing as a vested 
right to do wrong.” Freeborn v. Smith, 69 U.S. (2 Wall.) 
160, 175 (1865). Consequently, it is not unfair to re­
quire employers to compensate the victims of illegal dis­
crimination for injury caused by the employer’s illegal 
conduct. Indeed, Bradley authorized basically compara­
ble relief (an award of previously unauthorized attorney’s 
fees, which would not have been incurred but for the 
wrongdoer’s unlawful conduct).13 * * * * 18

12 In holding that backpay awards are taxable as ordinary income
in United States V. Burke, 112 S. Ct. 1867, 1874 & n.12 (1992),
the Court noted that the damages provisions of the Civil Rights
Act of 1991 reflect a “marked change in [Congress’s] conception 
of the injury redressable by Title VII, and cannot be imported
back into analysis of the statute as it existed at the time of this
lawsuit.” That statement does not address the question whether 
Section 102 should be considered “substantive” in the context of 
the Act’s application to pending claims for make-whole relief.

18 We think it is a much different and more difficult question 
whether the punitive damages provisions of Section 102 should 
be applied to cases involving conduct that occurred prior to the 
effective date of the Act. By definition, punitive damages do not 
merely compensate, the victim for his or her injury. And we are 
not aware of any statute in which Congress has explicitly applied 
a provision allowing punitive damages to conduct that occurred 
before the statute was enacted—a consideration relevant to the



24

Concern for employers must be balanced against con­
cern for the victims of intentional discrimination. If the 
employer does not bear the cost of intentional discrim­
ination, that cost will be borne by the victim. In striking 
that balance, it is important to bear in mind that Title VII 
cases are not “mere private cases between individuals,” 
The Schooner Peggy, 5 U.S. (1 Cranch) at 110, but 
instead are concerned with unlawful discrimination, one 
of the greatest of our national concerns. In enacting the 
compensatory damages provisions of Section 102, Con­
gress determined that the employer, rather than the victim, 
should bear the full cost of the discrimination. 137 Cong. 
Rec. S15,338 (daily ed. Oct. 29, 1991) (statement of 
Sen. DeConcini) (Congress intended to “place the in­
jured party, inasmuch as possible, in the same position 
he or she would have been in the absence of the discrim­
inatory act against the person”). There is nothing unjust 
about holding the wrongdoer responsible for injuries 
caused by conduct that has been illegal for almost 30 
years. Accordingly, Landgraf should be remanded for a 
hearing on appropriate damages under Section 102.14

question of presumed legislative intent. We note, however, that 
any potential unfairness to employers is mitigated by Section 102 
(b) (1), which allows the jury to award punitive damages only if 
the plaintiff demonstrates that the employer “engaged in a dis­
criminatory practice or discriminatory practices with malice or 
with reckless indifference to the federally protected rights of an 
aggrieved individual.” The courts below concluded that Section 
102 as a whole should not be applied to pre-enactment conduct, and 
therefore did not consider the arguments for drawing a distinction 
between compensatory and punitive damages. We believe it would 
be appropriate for the Court to follow its usual course and not 
address a question that was not considered or decided by the courts 
below.

14 In cases in which the district court entered an error-free judg­
ment for the defendant prior to the Act’s effective date, we do 
not believe plaintiffs are entitled to retrial merely on the ground 
that a jury might reach a different result as to liability. Cf. Kremer



25

2. S e c tio n  101 A p p l ie s  to  P e t i t io n e r s ’ C la im s  in  Rivers

In Rivers, the conduct at issue occurred before the 
effective date of the Act and before the Court decided 
Patterson. While the case was pending in the district 
court, this Court decided Patterson. The district court 
dismissed the Section 1981 discriminatory discharge claim 
in light of Patterson. While the case was pending on 
appeal, Congress passed the new Act.

There is no doubt that Section 101 expands the scope 
of Section 1981 to cover conduct that did not violate 
Section 1981 as construed by this Court in Patterson. In 
most cases, however—including this one—Section 101 
applies to conduct that was already illegal under Title

V. Chemical Construction Co., 456 U.S. 461, 481 (1982) (prior de­
termination against Title VII plaintiff in state proceedings bars 
Title VII claim, by collateral estoppel, unless there is reason to 
doubt quality, extensiveness, or fairness of procedures followed in 
prior litigation). If the district court has entered judgment for the 
plaintiff on the liability issue, however, we believe cases on appeal 
should be remanded for a determination of damages. Because 
Section 102 provides for jury trials in cases in which plaintiffs 
seek compensatory and punitive damages, it is arguable that Seventh 
Amendment considerations require that defendants in such a situ­
ation have an opportunity to relitigate the liability issue before 
a jury. Cf. Lytle V. Household Manufacturing, Inc., 494 U.S. 545 
(1990) (Seventh Amendment precludes according collateral-estoppel 
effect to district court’s determination of issues common to equita­
ble and legal claims where the court resolved the equitable claims 
first solely because it erroneously dismissed the legal claims). 
In our view, the considerations set out above warrant application 
of Sections 101 and 102 to pending cases, even if turns out that, 
in limited circumstances, the entire case must be retried. In the 
alternative, however, the Court might hold that the new provisions 
should be applied to pending cases unless their application would 
require a retrial. See Mojica V. Gannett Co., Nos. 91-3921 & 92-1104 
(7th Cir. Mar. 4, 1993) (Cummings, J., dissenting from order 
granting rehearing en banc) (suggesting that the Act should be 
applied to pending cases that had not yet been tried) ; Mozee, 
963 F.2d at 937 (same).



26

VII long before November 21, 1991.15 Fray, 960 F.2d 
at 1378 (conduct covered by Section 101 “was clearly 
actionable under Title VII”); Mozee, 963 F.2d at 941 
(Cudahy, J., dissenting) (“Section 101 merely provides 
new remedies for old wrongs.”); see also O’Hare v. Gen­
eral Marine Transport Corp., 740 F.2d 160, 171 (2d 
Cir. 1984), cert, denied, 469 U.S. 1212 (1985) (ERISA 
amendment awarding interest and attorney’s fees applies 
to pending case where employer was liable under a dif­
ferent provision before the amendment). Consequently, 
“application of § 101 to [a] pending case would neither 
alter the rights and expectations of the parties nor dis­
turb previously vested rights.” Fray, 960 F.2d at 1378.16

In addition, Congress viewed Section 101 as restoring 
a remedy for Section 1981 violations that was eliminated 
by Patterson, which denied remedies to victims of discrim­
ination in hundreds of cases that were pending at the 
time of the decision. See 136 Cong. Rec. S9336 (daily 
ed. July 10, 1990) (statement of Sen. Hatch); 137 Cong.

15 In the present case, the district court ruled that the employer 
was not liable under Title VII. The court of appeals nonetheless 
properly ruled that the district court’s holding under Title VII 
did not have a collateral estoppel effect on the Section 1981 claims. 
See Lytle v. Household Mfg., Inc., 494 U.S. 545 (1990). Because 
the Sixth Circuit has remanded the other Section 1981 issue to be 
tried before a jury, application of the Act would not require the 
district court to conduct additional proceedings. See 92-938 Pet. 
App. 9a-10a.

16 Not all conduct that is proscribed by Section 101 was also 
unlawful under Title VII or another civil rights law. For example, 
Title VII does not apply to employers with fewer than 15 em­
ployees. 42 U.S.C. 2000e (b). Moreover, Section 1981 is not lim­
ited to the employment context. See, e.g., Runyon v. McCrary, 427 
U.S. 160 (1976). Under the view we advance, Section 101 would 
not apply to conduct that was not unlawful at the time it occurred. 
In addition, punitive damages were not available under Title VII 
prior to the Act. If the Court were to conclude that punitive 
damages should not be available under Section 102 to plaintiffs 
injured by pre-Act conduct, see note 13, supra, we believe that the 
same result would be appropriate under Section 101.



27
Rec. 815,383 (daily ed. Oct. 29, 1991) (statement of 
Sen. Jeffords); 136 Cong. Rec. S9321 (daily ed. July 
10, 1990) (statement of Sen. Kennedy). As Senator 
Leahy described the result of Patterson (137 Cong. Rec. 
S15,489 (daily ed. Oct. 30, 1991)):

If, for example, an employer intentionally harasses 
or otherwise persecutes an employee solely on ac­
count of race, the current civil rights laws cannot 
require the employer to compensate that person fully 
for the damage he has caused, no matter how great 
or how real. Nor can the employer be forced to 
pay punitive damages no matter how outrageous his 
conduct has been. By overturning the Supreme 
Court’s decision in Patterson versus McLean Credit 
Union, the Civil Rights Act of 1991 would remedy 
this injustice.

See also 137 Cong. Rec. S15,483 (daily ed. Oct. 30, 
1991) (statement of Sen. Simpson) (“almost everyone 
agree[d]” that Patterson needed to be “overturnfed]”); 
137 Cong. Rec. S15,383 (Oct. 29, 1991) (statement of 
Sen. Jeffords) (“[ejvery civil rights proposal made over 
the past year-and-a-half has included a Patterson reversal 
as one of its terms”); 137 Cong. Rec. 815,285 (Oct. 28, 
1991) (statement of Sen. Seymour) (bill restoring rem­
edies under Section 1981 was “noncontroversial”). Where 
Congress unequivocally finds that a recent Supreme Court 
decision unfairly denies a remedy for discrimination, it is 
proper for the courts to infer that Congress intended for 
the curative legislation to apply to pending cases, and 
to deny the contrary decision any further effect. Cf. 
Lussier v. Dugger, 904 F.2d 661 (11th Cir. 1990) 
(Civil Rights Restoration Act of 1987 reversing Grove 
City decision applied to pending case); Ayers v. Allain, 
893 F.2d 732, 754-755 & n.l 16 (5th Cir.), vacated on 
other grounds, 914 F.2d 676 (5th Cir. 1990) (en banc), 
vacated sub nom. United States v. For dice, 112 S. Ct. 
2727 (1992) (same). But see DeVargas v. Mason & 
Hanger-Silas Mason Co., 911 F.2d 1377 (10th Cir.



28

1990), cert, denied, 111 S. Ct. 799 (1991). As the 
Ninth Circuit observed in Reynolds, it “would seriously 
undermine Congress’ stated intent” if the Court were to 
hold that “the decisions [Congress] repudiated would 
live on in the federal courts for * * * years.” 985 F.2d 
at 475-476. See also Mojica, slip op. 12 (Cummings, J., 
dissenting from order granting rehearing en banc) (“It 
would be sophistry to suggest that Patterson should have 
lingering effect in new civil rights cases for years to come, 
when Congress has so emphatically expressed its dis­
approval of that decision.”).

CONCLUSION

The judgments of the courts of appeals should be re­
versed, and the cases remanded for further proceedings.

Respectfully submitted.

William C. Bryson 
Acting Solicitor General

James P. Turner 
Acting Assistant Attorney General

Lawrence G. Wallace 
Deputy Solicitor General

Robert A. Long, Jr.
Assistant to the Solicitor General

David K. Flynn 
Dennis J. Dimsey 
Rebecca K. Troth 

Attorneys
Donald R. Livingston

General Counsel 
Equal Employment

Opportunity Commission
April 1993

&  O. S . GOVERNMENT PRINTING OFFICE; 1 9 9 3 3 4 2 4 7 9  6 0 2 6 3