Respondents Brief — Landgraf v. USI Film Products

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No. 92-757 Y 25:

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

BARBARA LANDGRAF,

Petitioner,

Vv.

USI Fir_M PRODUCTs,

BONAR PACKAGING, INC., and

QUANTUM CHEMICAL CORPORATION,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF FOR RESPONDENTS

DAVID N. SHANE *

BAKER & DANIELS

300 N. Meridian Street

Suite 2700

Indianapolis, IN 46204

(317) 237-0300

Counsel for Respondents

June 25, 1998 * Counsel of Record

WiLson - Epas Paintine Co.. Inc. - 769-0096 - WASHINGTON, D.C. 20001

‘BEST AVAILABLE COPY!”

QUESTION PRESENTED

Does the Civil Rights Act of 1991 apply retroactively

to cases pending when the Act became law so as to entitle

Petitioner to the redress provided in Section 102 of the

Act?

(i)

PARENTS AND SUBSIDIARIES

The Respondents were defendants-appellees below.

Quantum Chemical Corporation is a Virginia corpora-

tion and a publicly traded company. USI Film Products

was a manufacturing plant in the USI Division of Quan-

tum. Bonar Packaging, Inc., is a Canadian corporation

and purchased the USI Film Products plant from Quan-

tum subsequent to Petitioner’s resignation from employ-

ment at the plant. Quantum does not have any parent

company. Quantum has the following non-wholly-owned

subsidiary companies:

Atlantic Energy, Inc.

CUE Insurance Limited

Fallon Propane and Butane Company

Northwest L.P.G. Supply Ltd.

Petrolane Finance Corp.

Petrolane Gas Service L.P.

Petrolane Incorporated

Quantum Petrochemical Corporation Limited

TABLE OF CONTENTS

QUESTION PRESENTED ..................... ss aaeemamebihialatinsaiene

PARENTS AND SUBSIDIARIES .......... euieneiiemsdaese

TABLE OF AUTHORITIES ....0000000000..... siaaiiesiiaiionind

STATUTE INVOLVED ...........2.....0...2..00.00--0- Rishemnsendisians

STATEMENT OF THE CASE ................... isicatesiaponsiain

SUMMARY OF THE ARGUMENT ......

i nlereceeenccniddennndavasavecsenceneucseoescsooees

Il.

III.

SECTION 102 OF THE ACT DOES NOT

APPLY TO PENDING CASES ....00......

A. Retroactivity Is Not Favored In The Law....

B. Congressional Action Must Meet A Strict

Standard In Order To Operate Retrospec-

C. The Civil Rights Act of 1991 Does Not

1. The Language Of The Act Does Not

Require Retroactivity .................................

2. Congress Made A Conscious Choice

Demonstrating The Act Does Not Apply

D. The Act Does Not Apply Retroactively..._...

A PRESUMPTION OF RETROACTIVE AP-

PLICATION OF THE ACT TO PENDING

CASES IS UNWARRANTED AND UN-

EVEN UNDER BRADLEY RETROACTIVE

APPLICATION CANNOT STAND |...

A. There Is Statutory History To The Con-

a aia anreaiines een

TABLE OF CONTENTS—Continued

B. The Act Creates A New Substantive Lia-

1. The Act Increases Respondents’ Sub-

RD BI | siciirrctctentitictetscenicnes

2. Prospective Application Is Essential To

Permit Employers To Adjust Their In-

ternal Regulation Of Human Conduct....

3. Section 102 Implicates Both New Sub-

stantive Rights And New Substantive

C. The New Jury Trial Procedure Follows The

New Substantive Liability —....000000000000000..

D. Retroactive Application Of The New Sub-

stantive Rights And Liabilities And Jury

Trial Provisions Would Be Manifestly Un-

IV. PROSPECTIVE APPLICATION WILL PAR-

ALLEL THE PROGRESSIVE PATH OF THE

Page

TABLE OF AUTHORITIES

Cases Page

Bennett v. New Jersey, 470 U.S. 632 (1985) ...... 18, 25, 31

Bohen v. East Chicago, 799 F.2d 1180 (7th Cir.

I catia a 3

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204

SEES ERS REE ae reece See 4, 8, 9, 18, 20

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

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) —.......... 34

Cannon v. Univ. of Chicago, 441 U.S. 677 (1979)... 14-15

Chevron U.S.A., Inc. v. Natural Resources De-

fense Council, Inc., 467 U.S. 837 (1984) ............ 17

Claridge Apartments Co. v. Commissioner, 323

i ele 8

Condit v. United Air Lines, Inc., 631 F.2d 1136

DI I ca 14

Dash v. Van Kleeck, 7 Johns. 477 (1811) —............ 8

Greene v. United States, 376 U.S. 149 (1964)... 25, 31

Haddock v. Haddock, 201 U.S. 562 (1906) _.......... 25

Jensen v. Gulf Oil Refining & Marketing Co., 623

es ee ee ee, ccrmmenienndnnantune 14

Kaiser Aluminum & Chemical Corp. v. Bonjorno,

Cy a I itineraries 20, 21, 22

Landgraf v. USI Film Products, et al., 968 F.2d

£4 EE 4, 5, 26, 27, 32, 34

Luddington v. Indiana Bell Tel. Co., 966 F.2d 225,

(7th Cir. 1992) petition for cert. filed Dec. 3,

SiN cciiccenentaaeaniainasadsianiinamaieaeananl 22, 23, 24, 26, 27, 33, 34

Massachusetts v. Morash, 490 U.S. 107 (1989)... 12

Miller v. Florida, 482 U.S. 423 (1987) ................... 30

Moore v. Califano, 633 F.2d 727 (6th Cir. 1980)... 14

Palmer v. Massachusetts, 308 U.S. 79 (1939)........ 13

Peak v. United States, 353 U.S. 43 (1957) ............ 10

Reynolds v. M’Arthur, 27 U.S. (2 Pet.) 417

FR ee ee 9

Schwab v. Doyle, 258 U.S. 529 (1922) 200... 12-13

Sikora v. American Can Co., 622 F.2d 1116 (3rd

I eae ee eee 14

Stender v. Lucky Stores, Inc., 780 F. Supp. 1302

SEES TEED: EIT | sccnecnslin denhbdaaencoeaacasedensimeaaasiaehalinlaains 19

TABLE OF AUTHORITIES—Continued

Page

Thorpe v. Housing Auth., 393 U.S. 268 (1969)... passim

Touche Ross & Co. v. Redington, 442 U.S. 560

FREE Sve ee ae NS a A TS Oe 15

Union Pacific R.R. v. Laramie Stock Yards Co.,

a SO SE 9-10, 17, 18, 30

United States v. Burke, —— U.S. ——, 112 S.Ct.

— REREEENESENOmancte CEE rr 28, 29, 30, 31, 36

United States v. Heth, 1 U.S. (3 Cranch) 399

RSE ES ace ee MCE eee aN me CS 9,10, 12,13

United States v. Security Indus. Bank, 459 U.S.

ht 18, 19, 25, 31

United States v. St. Louis, S. F. & T. R.R., 270

sees 9

United States v. Wurts, 303 U.S. 414 (1938) _......... 11

United States Fidelity & Guaranty Co. v. United

States ex rel. Struthers Wells Co., 209 U.S. 306

ea a a 9, 12,13

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1

ETRE EER SET E, t RE EA Ee ee 27, 34

Weaver v. Graham, 450 U.S. 24 (1981) ...... Sees 30, 33

Wiener v. Farm Credit Bank of St. Louis, 759

F. Supp. 510 (E.D. Ark. 1991) ............. eee 19

Statutes

Americans With Disabilities Act of 1990

TET LE ene Hee ne Cae aaa 11

I inierel ll

Civil Rights Act of 1991, Pub. L. No. 102-166, 105

Eco . 1

Section 2, 105 Stat. 1071 nnn... 36

Section 102, 105 Stat. 1072 00... passim

Section 108, 105 Stat. 1075 nn. 12

Section 109(c), 105 Stat. 1077 11,12

Section 110, 105 Stat. 1078 ...... OES evden be Solero 12

Section 402(a), 105 Stat.1099 10, 11, 12, 13, 16

Section 402(b), 105 Stat. 1099 11,12

Title VII of the Civil Rights Act of 1964

42 U.S.C. § 20000 ef seg. ............................... aoknes 2,7

vii

TABLE OF AUTHORITIES—Continued

Page

RL 3,4

42 U.S.C. § 2000e-5(f) (4) ....0.... ee. 31

Pub. L. No. 92-161, 86 Stat. 103 (1972) ..00000 0... 13, 14

Pub. L. No. 95-555, 96 Stat. 2076 (1978) 0.0000... 14

Legislative History

136 Cong. Rec. $16418-19 (Oct. 22, 1990) 0... 15

S. 2104, 101st Cong., 2d Sess. § 15(a) (4) (1990). 15

Other Authorities

90 4th Fed. Prac. Digest (1992)... 19

Miscellaneous

Benjamin N. Cardozo, The Growth of the Law

(Yale University Press) (1924) 0000000... 21

O.W. Holmes, The Path of the Law, 10 Harvard

Law Review 457 (1897) _............0 ee 28

Sir Thomas More, Utopia, bk. 2, 105 (E.P. Dut-

ton & Co., Inc.) (1915) (1516) 0.0000... 21

Story, J., Commentaries on the Constitution

SR ES ls a i a Ae eee Oe 8,21

IN THE

Supreme Cont of the United States

OCTOBER TERM, 1992

No. 92-757

BARBARA LANDGRAF,

. Petitioner,

USI FILM Propucts,

BONAR PACKAGING, INC., and

QUANTUM CHEMICAL CORPORATION,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF FOR RESPONDENTS

STATUTE INVOLVED

The case involves the Civil Rights Act of 1991 (“the

Act” or “1991 Act”), Publ. L. No. 102-166, 105 Stat.

1071 (1991). (Appendix B to Petition For Certiorari)

The specific provision at issue in this case is Section 102

of the Act.

STATEMENT OF THE CASE

While working for the USI Film Products plant in

Tyler, Texas, Barbara Landgraf (‘“Landgraf” or “Peti-

tioner”) was subjected to sexual harassment by a fellow

employee, John Williams. (Joint Appendix (“Jt.App.”)

9, @1.1) When Landgraf notified her immediate super-

visor, Bobby Martin, about the harassment, he did not

respond. (Jt.App. 9, @1.2,3) Landgraf reported the har-

assment to Sam Forsgard, who handled personnel matters

at USI. He investigated immediately. (Jt.App. 9-10,

€ 4, 5) Williams was given the plant’s most serious form

of written reprimand and transferred to another depart-

ment in order to reduce his contact with Landgraf. (Jt.

App. 9-10, € 6; 22) Landgraf was told to notify Forsgard

if Williams continued to bother her; she reported no such

incidents to USI. (Jt.App. 21-22) The plant’s remedial

measures alleviated the harassment Landgraf had been

subjected to by her co-worker Williams. (Jt.App. 10, @ 6)

Landgraf resigned in January 1986, a few days after

the plant instituted its remedial measures. (Jt.App. 10,

€7) Her letter of resignation made no reference to

Williams or the harassment. (Jt.App. 2)

Later in 1986, Landgraf filed a charge with the Equal

Employment Opportunity Commission (“EEOC”), alleg-

ing a violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq., because of Williams’ harassment

and her resignation, which she attributed to the plant’s

discriminatory work environment. (Jt.App. 3-4) The

EEOC subsequently issued a determination finding that

her co-worker Williams had sexually harassed her; that

after Landgraf had reported the harassment, the plant

transferred Williams and issued him written discipline, so

that “Respondent provided remedy on its own initiative”

(Jt.App. 4); and that Landgraf resigned “because she was

unable to get along with other co-workers.” (Jt.App. 5)

The determination found that “no additional relief is nec-

essary” because “Respondent undertook prompt remedial

action,” and that her resignation was not a constructive

discharge. (Jt.App. 5) The determination was issued

September 15, 1988.

Landgraf brought suit under Title VII in the United

States District Court for the Eastern District of Texas.

She also sought relief under pendent state law claims,

which were dismissed as untimely. (Jt.App. 13, § 8)

The matter was tried to the court. In its findings of fact,

conclusions of law and judgment (Jt.App. 9-14), the dis-

trict court found that Landgraf was subjected to sexual

harassment by Williams, her fellow employee, by which

she suffered mental anguish; that when she reported it to

Forsgard he “immediately conducted an appropriate in-

vestigation” and responded; that “[t}he remedial meas-

ures instituted by Forsgard alleviated the harassment;”

that “at the time Landgraf resigned from her job, USI

had taken steps . . . to eliminate the hostile working en-

vironment arising from the sexual harassment;” and that

Landgraf was motivated to resign by her conflicts and

unpleasant relationships with co-workers generally.

(Jt.App. 9-10, €€ 1.1, 10, 5, 6, I1.6) As a matter of

law, the district court found that her resignation was not

a constructive discharge (Jt.App. 11, 4 11.6) and that

Landgraf was not entitled to any damages remedy under

42 U.S.C. § 2000e-5(g), quoting from Bohen v. East

Chicago, 799 F.2d 1180, 1184 (7th Cir. 1986):

“[N]o damages are available under Title VII. If

Congress wishes to amend the provisions of Title VII

to provide a remedy of damages, it can do so. Until

then, this court may only enforce the statute as

written, and as currently written Title VII does not

contemplate damages.”

(Jt.App. 12, € 7) Judgment was entered May 22, 1991.

(Jt.App. 14)

Landgraf appealed. After briefing on the appeal was

completed. and while the appeal was pending oral argu-

ment, the Civil Rights Act of 1991 was enacted on

November 21, 1991.

On February 6, 1992, Landgraf’s counsel sent a letter

to the court of appeals, stating in pertinent part:

Recent amendments to Title VII, 42 U.S.C.

§ 2000e et seq., contained in the Civil Rights Act of

1991 may bear on the issues before the Court in

the above referenced matter. The Civil Rights Act

of 1991 has become law since the briefs of the par-

tics were filed.

Please bring this matter to the Court’s attention.

(Jt.App. 17-18)

Following oral argument, the court of appeals affirmed

the district court’s decision. (Jt.App. 19-28) Landgraf

v. USI Film Products, et al., 968 F.2d 427 (Sth Cir.

1992). The court rejected Landgraf’s claim of construc-

tive discharge, noting:

Although USI’s investigation of this incident may not

have been overly sensitive to Landgraf’s state of

mind. the company had taken steps to alleviate the

situation and told Landgraf to let them know of any

further problems. A reasonable employee would not

have felt compelled to resign immediately following

the institution of measures which the district court

found to be reasonably calculated to stop the harass-

ment.

(Jt.App. 23-24) The court also rejected her claim for

damages, because “‘[w]Je have consistently interpreted [42

U.S.C. § 2000e-5(g)] to mean that ‘only equitable relief

is available under Title VII’? and “damages . . . are

legal, not equitable relief... .” (Jt.App. 25)

The court below found that Section 102 of the Civil

Rights Act of 1991, providing for compensatory and

punitive damages, with right of jury trial, did not apply

retroactively. Finding “no clear congressional intent on

the general issue of the Act’s application to pending

cases,” the court turned to legal principles involving

retroactivity. Recognizing that such principles were

“somewhat uncertain” in light of Bowen v. Georgetown

Univ. Hosp., 488 U.S. 204 (1988), and Bradley v.

School Board, 416 U.S. 696 (1974), the court, applying

the Bradley standard arguendo, held that the provisions

of Section 102 “should not be applied retroactively to

this case.” (Jt.App. 26-27)

The court rejected retroactive application of the jury

trial provisions: “We are not persuaded that Congress

intended to upset cases which were properly tried under

the law at the time of trial. . . . To require USI to retry

this case because of a statutory change enacted after the

trial was completed would be an injustice and a waste of

judicial resources.” (Jt.App. 27)

The court found similarly for the compensatory and

punitive damage provisions of Section 102:

Retroactive application of this provision to con-

duct occurring before the Act would result in a

manifest injustice. . . . Unlike allowing prevailing

plaintiffs to recover attorneys’ fees as in Bradley,

the amended damage provisions of the Act are a

seachange in employer liability for Title VII viola-

lions. ...

... There is a practical point at which a dramatic

change in the remedial consequences of a rule works

change in the normative reach of the rule itself. It

would be an injustice within the meaning of Bradley

to charge individuai employers with anticipating this

change in damages available under Title VII... .

[They] impose ‘an additional or unforeseeable obli-

gation’ contrary to the well-settled law before the

amendments.

(Jt.App. 27-28)

SUMMARY OF THE ARGUMENT

The law does not favor retroactivity. Statutes are pre-

sumed to apply only prospectively to human conduct, un-

less Congress provides to the contrary using words that

are clear, strong and imperative, of unequivocal and in-

flexible import, manifestly evidencing a Congressional in-

tent for retroactive application and requiring that result.

The Civil Rights Act of 1991 does not satisfy the

standard for retroactive application. Its language does

not provide for retroactive application, and efforts to

draw negative inferences from its provisions are both

erroneous and insufficient to establish the necessary mani-

fest intention. Its legislative drafting path demonstrates

an intentional Congressional choice against retroactivity,

and its legislative history either supports prospective ap-

plication or is at worst of no value in divining legislative

intent.

Petitioner’s use of Bradley and Thorpe v. Housing

Auth., 393 U.S. 268 (1969), to attempt to reverse the

ancient principle disfavoring retroactive legislation, by us-

ing those cases to call for a presumption in favor of

retroactivity, leads to unjust and unwise results and should

not be countenanced. The use of Bradley and Thorpe

by litigants and the resulting confusion in the lower courts

should be brought to a halt by a reaffirmation of the

principle that absent clear Congressional direction to the

contrary, statutes regulating human conduct have only

prospective operation. To the extent that they are in-

consistent with that fundamental principle of jurispru-

dence, Bradley and Thorpe should be disapproved.

Even applying the Bradley analysis arguendo, the pro-

visions of Section 102 of the 1991 Act should not be

applied retroactively. Their creation as part of the Act

and its effective date provisions evidenced a legislative

choice against retroactivity. They add a tort-like cause

of action to Title VII, which previously provided only

for restitutionary, equitable relief; as such, they affect

substantive rights and liabilities. And their retroactive

application to human conduct and trials occurring before

their enactment would create manifest injustice.

Prospective application, recognizing a new right to dif-

ferent damages flowing from Congress’ new conception of

injury to be redressed by Title VII, will advance the Con-

gressional purposes of the 1991 Act by providing new

regulation of human conduct.

ARGUMENT '

Petitioner asks the Court to find that the new punitive

damage, compensatory damage and related jury trial pro-

visions of Section 102 of the Act apply retroactively to

her case because it was pending appeal when the Act

was passed. Her cause below addressed human actions

that occurred in the winter of 1985-1986; was filed in

court under Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq., in 1989 (with no claim under

Title VII for compensatory or punitive damages or jury

trial); * was tried in February 1991; and was on appeal

pending decision when the Act became law in November

1991. Petitioner asks the Court to hold that Section 102

should be applied retroactively, in order that she now

might make a new claim of injury under Title VII for

which she seeks compensatory and punitive damages, de-

termined by a jury, based on those human actions that

occurred before, and were tried before, the Act became

law. Her request should fail, because Section 102 of the

Act does not and should not apply retroactively to pend-

ing cases involving human conduct or trials occurring

before the Act’s effective date.

1In its Brief, Roadway Express, Inc., Respondent in Rivers v.

Roadway Express, Inc., No. 92-938, has addressed exhaustively

various issues common to these consolidated cases. In order not

to burden the Court with redundant argument, Respondents in this

case join in Roadway’s Brief and will not repeat here the arguments

made there, which are incorporated herein by reference.

2 Petitioner sought no compensatory or punitive damages or

other legal relief under Title VII. Petitioner sought equitable

relief under Title VII and compensatory and punitive damages under

pendent state common law claims. At trial, Petitioner conceded

that her state common law claims were barred by the applicable

statute of limitations, and the district court dismissed those claims

with prejudice. (Jt. App. 13, { 8)

I. SECTION 102 OF THE ACT DOES NOT APPLY TO

PENDING CASES

A. Retroactivity Is Not Favored In The Law

“Retroactivity is not favored in the law.” Bowen v.

Georgetown Univ. Hosp., 488 U.S. at 208. “Retro-

activity, even where permissible, is not favored, except

upon the clearest mandate.” Claridge Apartments Co.

v. Commissioner, 323 U.S. 141, 164 (1944). The

principle is not new. It finds expression in ancient texts,

English common law, Constitutional doctrine (the test of

due process, the ex post facto and bill of attainder pro-

hibitions), this Court’s rules of statutory construction,

and simple fairness.

The non-retroactivity principle is a fundamental tenet

of American jurisprudence. In the criminal sphere of

the law, the principle is embodied in a flat constitutional

prohibition of ex post facto laws. In the civil area, the

non-retroactivity principle antedates the Constitution it-

self:

It is a principle in the English law, as ancient as

the law itself, that a statute, even of its omnipo-

tent Parliament, is not to have a retrospective effect.

Dash v. Van Kleeck, 7 Johns. 477, 503 (1811). The non-

retroactivity principle is embodied in the ancient maxim

Nova Constitutio Futuris Formam Imponere Debet, Et

Non Praeteritis (“a new state of the law ought to affect

the future, not the past”). It is a principle that has been

embraced by the greatest scholars in our legal history, e.z.,

Story, J., Commentaries on the Constitution § 1398

(1873) (“retrospective laws are . . . generally unjust,

and .. . neither accord with sound legislation nor with

the fundamental principles of the social compact.”).

[t is a principle that has been taken for granted by the

distinguished members of this Court for generation upon

generation. Chief Justice Marshall declared:

It is a principle which has always been held sacred

in the United States, that laws by which human

action is to be regulated look forwards, not back-

wards; and are never to be construed retrospectively,

unless the language of the act shall render such

construction indispensable. No words are found in

the act of 1818, which render this odious construc-

tion indispensable.

Reynolds v. M’Arthur, 27 U.S. (2 Pet.) 417, 434

(1829). A century later, Justice Brandeis, writing for

the Court, observed:

That a statute shall not be given retroactive effect,

unless such construction is required by explicit lan-

guage or by necessary implication, is a rule of gen-

eral application.

United States v. St. Louis, 8. F. & T. R.R., 270 US. 1,

3 (1926).

B. Congressional Action Must Meet A Strict Standard

In Order To Operate Retrospectively

Given the principle disfavoring retroactivity, there is

a standard which legislation by Congress must meet in

order to operate retrospectively. “[C]Jongressional enact-

ments . . . will not be construed to have retroactive effect

unless their language requires this result.” Bowen, 488

U.S. at 208 (emphasis added). A statute “ought never

to receive such a [retroactive] construction if if is sus-

ceptible of any other.” United States Fidelity & Guaranty

Co. v. United States ex rel. Struthers Wells Co., 209 US.

306, 314 (1908) (emphasis added). Rather, “[w]Jords used

in a statute ought not to have a retrospective operation,

unless they are so clear, strong and imperative, that no

other meaning can be annexed to them, or unless the in-

tention of the legislature cannot be otherwise satisfied.”

United States v. Heth, 1 US. (3 Cranch) 399, 413

(1806) (emphasis added). Therefore, “a retrospective

operation will not be given ‘o a statute which interferes

with antecedent rights or by which human action is regu-

lated, unless such be the ‘unequivocal and inflexible im-

port of the terms, and the manifest intention of the legis-

lature.” Union Pacific R.R. v. Laramie Stock Yards Co.,

231 U.S. 190, 199 (1913) (emphasis added) (quoting

Heth, at 413).

C. The Civil Rights Act of 1991 Does Not Meet The

Standard

The Civil Rights Act of 1991, including the new jury

trial and compensatory and punitive damage provisions

of Section 102, does not satisfy this standard. Its lan-

guage does not require such a result; it is susceptible of

other construction. Its words are not clear, strong and

imperative; other meanings can be annexed to them. The

import of its terms are not unequivocal and inflexible;

and the intentions of its enacting Congress are anything

but manifest.

1. The Language Of The Act Does Not Require

Retroactivity

Section 402(a) speaks to the “Effective Date” of the

Act. It states: “Except as otherwise specifically provided

this Act and the amendments made by this Act shall

take effect upon enactment.” Enactment occurred on

November 21, 1991.°

This language certainly does not require retroactivity.

The words are not so “clear, strong and imperative” as

to apply the Act retroactively; the words do not speak

to retroactivity at all. They are not “unequivocal and in-

flexible” in compelling the application of the Act retro-

actively to the facts of a pending case, the human ac-

tion of which occurred years before the Act; the words

do not speak to pending cases at all. On their face, the

3 Read in common sense terms, the Act and its amendments would

take effect to regulate human conduct that occurs on or after

November 21, 1991, not before. “That seems to us to be the com-

mon sense of the matter; and common sense often makes good

law.” Peak v. United States, 353 U.S, 43, 46 (1957).

words of Section 402(a) of the Act stated by Congress to

establish its effect say nothing at all about pending cases

or retroactivity. The reader cannot find a requirement of

retroactivity in its words.

Unable to draw comfort from the language of Section

402(a), Petitioner attempts to draw negative inferences

from its language and legislative history. Neither leads

to aconclusion of retroactive application: *

* The qualifying language of Section 402(a)—‘“Ex-

cept as otherwise specifically provided”’—has a purpose.

Sections 102(a)(2) and (3) of the Act, 42 U.S.C.

$$ 198la(2) and (3), addressed intentional discrimina-

tion under the Americans With Disabilities Act of 1990

(“ADA”), 42 U.S.C. § 12101 et seg. Section 108 of

the ADA, 42 U.S.C. §$ 12111, “otherwise specifically

provided” that the employment provisions of the ADA

did not become effective until July 26, 1992, well after

the enactment of the Civil Rights Act of 1991. Absent the

qualifying language of Section 402(a), the damages pro-

visions of Section 102(a)(2) and (3) of the 1991 Civil

Rights Act would have been effective before the ADA

itself. That would be absurd.°

* Petitioner argues that Section 109(c) (coverage of

expatriates) and Section 402(b) (effectively, the Ward's

Cove litigation) are prospective, so that the rest of the

Act must be applied retroactively. It is not so. They are

isolated pieces of the statute: one originated in a ver-

sion of the bill which was expressly retroactive; the other

was a late amendment whose proponents made clear its

presence was not in derogation of the prospective effect

* See the Brief of Roadway Express, Inc., pp. 16-24.

5 Cf. United States v. Wurts, 303 U.S. 414, 418 (1938) (“It would

require language so clear as to leave room for no other reasonable

construction in order to induce the belief that Congress intended

a statute of limitations to begin to run before the right barred by

it has accrued”).

of the Act. They both survived into the final statute as

insurance policies for specific situations. Both sections

are susceptible of other construction and can have other

meanings annexed to them. United States Fidelity &

Guaranty Co., 209 U.S. at 314; Heth, 1 U.S. (3 Cranch)

at 413."

* The Act is redundant already (Section 110(b)

needlessly restates Section 402(a)). Section 402(b) and

Section 109(c) easily can be interpreted as having a

purpose to be redundant for emphasis. Massachusetts v.

Morash, 490 U.S. 107, 113 n.9 (1989) (“Congress was

not concerned with duplication” ).

Properly read and interpreted, the Act is prospective;

it does not apply to pending cases. But even assuming

arguendo that the Act can be read to have two mean-

ings, the principle that retroactivity is not favored argues

that the meaning which rejects retroactivity must be

applied:

The initial admonition is that laws are not to be

considered as applying to cases which arose before

their passage unless that intention be clearly de-

clared.... If the absence of such determining dec-

* Petitioner (Pet. Br. at 10, n.7) argues that Section 108(n) (2)

(A) and (B) also demonstrate retroactive operation of the Act.

The argument is tortured, and it fails. Section 108 looks prospec-

tively, to reduce challenges to litigated or consent judgments or

orders that are being implemented through employment practices.

Subsection (2)(A) preserves standards of intervention when such

a judgment or order is challenged; subsection (2)(B) protects the

rights of certain parties to the proceeding in the event of such a

challenge. Both are rationally applicable prospectively, to keep a

court from interpreting subsections (1)(A) and (B), which limit

such challenges, to affect either legitimate intervenors or certain

parties to the order or judgment itself. Petitioner’s out of context

use of the language shows the depth of negative inference to which

she must go to seek (unsuccessfully) a suggestion of retroactivity.

And her argument ironically ignores the motive of Section 108,

“facilitating prompt and orderly resolution” of proceedings, a goal

that retroactive application of the Act most assuredly would

frustrate.

laration leaves to the statute a double sense, it is the

command of the cases, that which rejects retroactive

application must be selected.

Schwab v. Doyle, 258 U.S. 529, 534-35 (1922).

Where the reader seeks a “clear, strong and impera-

tive” and “unequivocal and inflexible” statement of retro-

activity, use of negative inference does not suffice:

And so we have one of those problems in the read-

ing of a statute wherein meaning is sought to be

derived not from specific language but by fashioning

a mosaic of significance out of the innuendos of dis-

jointed bits of a statute. At best this is subtle busi-

ness, calling for great wariness lest what professes to

be mere rendering becomes creation and attempted

interpretation of legislation becomes legislation itself.

Palmer v. Massachusetts, 308 U.S. 79, 83 (1939).

Where, as here, analysis of the asserted interpretation

demonstrates other explanations, it is all the clearer that

retroaciive application is precluded. Where, as _ here,

“other meaning[s] can be annexed” to the words of the

Statute alleged to create retroactivity, Heth, 1 U.S. (3

Cranch) at 413, prospective application is further re-

inforced. The possibility of an inferred construction does

not suffice to satisfy the standard to create retrospective

application. A statute “ought never to receive such a

[retroactive] construction if it is susceptible of any other.”

United States Fidelity & Guaranty Co., 209 U.S. at 314.

2. Congress Made A Conscious Choice Demonstrat-

ing The Act Does Not Apply To Pending Cases

In selecting the language of Section 402(a), Congress

had choices. It was amending Title VII, the history of

which provided at least two relevant options.

In amending Title VII in 1972, Congress specifically

expressed. in language that is clear, strong. imperative,

unequivocal and inflexible, that certain of the amendments

applied to cases then pending. Specifically, Section 14 of

those amendments, Public Law No. 92-261, 86 Stat. 103,

113 (1972), stated:

The amendments made by this Act to section 706

of the Civil Rights Act of 1964 shall be applicable

with respect to charges pending with the Commission

on the date of enactment of this Act and all charges

filed thereafter.

(Emphasis added. )

In amending Title VII in 1978, Congress took a dif-

ferent course. Section 2(a) of Public Law No. 95-555,

92 Stat. 2076 (1978), provided an effective date as

follows:

Except as provided in subsection (b), the amend-

ment made by this Act shall be effective on the date

of enactment.

By the time Congress addressed a new civil rights act

in 1990 and 1991, the courts had interpreted language of

the same sort as Congress used in 1978—and used again

in the 1991 Act—to be prospective in operation, i.e., they

had found that legislative use of the phrase “shall be ef-

fective on the date of enactment” does not create any

retroactive application to pending cases. See, e.g., Condit

v. United Air Lines, Inc., 631 F.2d 1136, 1139-40 (4th

Cir. 1980) (so interpreting the 1978 amendments to

Title VII). See also, Jensen v. Gulf Oil Refining &

Marketing Co., 623 F.2d 406, 410 (Sth Cir. 1980);

Sikora v. American Can Co., 622 F.2d 1116, 1123-24

(3rd Cir. 1980). Cf., Moore v. Califano, 633 F.2d 727,

732-33 (6th Cir. 1980) (finding that in using “just a

general provision”’—*“The provisions of this Act shall take

effect on the date of enactment of this Act . . .”——“Con-

gress thus failed to make any specific provision for retro-

active application of the amendments to cases pending on

appeal before the courts.”) Congress is presumed to

know of prior judicial interpretations of its statutory lan-

guage when it uses similar language at a later time.

Cannon v. Univ. of Chicago, 441 U.S. 677, 696-99

(1979).

Congress used language to amend Title VII in 1972

which demonstrates it knows how to write statutes which

apply to pending cases. Congress used language to amend

Title VII in 1978 which demonstrates it knows how to

write statutes which do not apply to pending cases, and

the courts confirmed that conclusion. Cf., Touche Ross

& Co. v. Redington, 442 U.S. 560, 571 (1979) (“Ob-

viously, then, when Congress wished to provide a private

damage remedy, it knew how to do so and did so

expressly.” ).

The difference in language was not lost on C-ngress in

its effort to pass a new civil rights act. When it drafted

initial versions of what became the Civil Rights Act of

1990, Congress used language modeled after the 1972

amendments. For example, the 1990 version of the act

contained provisions expressly addressing pending cases,

one of which made the amendment expanding recognized

injuries and possible damages under Title VII expressly

applicable to pending cases. Section 15(a)(4) of that

act provided:

Section . . . 8 [expanding damages under Title

VII to include compensatory and punitive damages]

. Shall apply to all proceedings pending on or

commenced after the date of enactment of this Act.

S. 2104, 10Ist Cong., 2d Sess. § 15(a)(4) (1990)

(Senate version of the 1990 Civil Rights Act) (emphasis

added). The language is clear, unequivocal, and inflex-

ible. It might have been unconstitutional, but it otherwise

would have met the standard for retroactive application.

But the language did not survive. The act was vetoed

by President Bush. 136 Cong. Rec. $16418-19 (Oct. 22.

1990). That veto put a focus on retroactivity, because

one of the President’s reasons for vetoing the legislation

was the “unfair” rules it contained about retroactivity. /d.

Congress tried again in 1991, using similar language.

But before legislation was enacted in 1991, Congress

backed off the language that would have applied the

amendments to pending cases. Instead, Congress sub-

stituted in Section 402(a) the language that made the

amendments effective upon enactment, language previ-

ously interpreted to be only prospective in operation.

( ongress’ choice was clear. Its intent is revealed by

the path it chose to develop language that would become

law. The statute’s drafting path moves away from Con-

gress’ prior clear language establishing retroactive appli-

cation to pending cases and toward Congress’ prior lan-

guage interpreted to confirm prospective application.

Congress not only is presumed to know the difference

between the two choices; the history of the 1991 Act

shows Congress did know the difference.

Not only is language requiring retroactivity absent,

but it is manifestly intentionally absent. Retroactivity

language was contained in prior versions of the bill, but

it was eliminated as a part of the legislative compromise

that led to the enactment of the 1991 amendments.’ Pe-

titioners “are now waging in a judicial forum a specific

7 Petitioner cannot find comfort in examination of the Admin-

istration’s proposal (Pet. Brief, p. 19). The language that made

its way into the statute as enacted came from Senator Danforth’s

proposal, which parroted language previously used by Congress in

amending Title VII, and interpreted by the courts, to be prospective

in its operation. See Roadway’s Brief in No. 92-938, pp. 20-23.

The Administration’s proposal was not the source of the legislation.

Even ignoring that fact, the proposal is internally consistent: one

sentence of the Administration’s proposal is prospective, by prior

Congressional usage and judicial interpretation (“This Act and the

amendments made by this Act shall take effect upon enactment”) ;

the other is non-retroactive (“The amendments made by this Act

shall not apply to any claim arising before the effective date of this

Act”). The Administration’s proposal thus called once for prospec-

tive application and once against retroactive application. That the

legislation ultimately enacted only called once for prospective ap-

plication does not make it retroactive.

policy battle which they ultimately lost” in the Congress.

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 864 (1984). Congress

could not muster adequate support to apply the amend-

ments to pending cases; it could muster adequate sup-

port to make the amendments prospective. That is most

compelling evidence of legislative intent. As part of the

legislative bargain to achieve new law, the operation of

the 1991 Civil Rights Act is prospective.

D. The Act Does Not Apply Retroactively

Congress chose away from language to apply the Act

retroactively to pending cases. It chose toward language

interpreted to apply the Act only prospectively. Its lan-

guage provisions support that result. Its legislative his-

tory does not negate it.* It is only by attempting, errone-

ously, to derive meaning by “fashioning a mosaic” out of

“the innuendos of disjointed bits of a statute” or snippets

of legislative dialogue that even a negative inference of

retroactivity can be postulated. That is not the stuff of

which the retrospective editing of the regulation of human

conduct and the resulting rights, obligations and liabili-

ties should be made.

The principle that retroactive regulation of human

conduct is not favored demands not an_ inconclusive

approach to retroactivity but a clear statement of it.

When a statute is alleged to apply retrospectively, the

search is for “the unequivocal and inflexible import of

* As noted in detail in Roadway’s Brief in No. 92-938, pp. 22-

23, the history of legislative debate supports prospective applica-

tion and does not compel retroactive application. At worst, the

legislative history reflects a draw in the last minute war of words.

Even Petitioner, focusing on the statements of individual legisla-

tors, concludes that the comments of legislators are inconclusive.

(Petitioner’s Brief, p. 14 and n.12) The key is this: neither legis-

lative debate nor various midnight maneuverings by individual

legislators restored the language Congress previously had used, and

earlier had tried but failed to use here, to apply a statute amending

Title VII retroactively to pending cases.

the terms, and the manifest intention of the legislature.”

Union Pacific R.R., 231 U.S. at 199. The terms of the

1991 Act and their history do not provide an “un-

equivocal and inflexible import” for retroactivity; an (at

worst) inconclusive legislative dialogue does not evi-

dence the necessary “manifest intention of the legislature.”

Id. Lacking these, retroactivity—not favored by the law

—should not result.

II. A PRESUMPTION OF RETROACTIVE APPLICA-

TION OF THE ACT TO PENDING CASES IS UN-

WARRANTED AND UNSOUND

Petitioner relies upon Bradley, 416 U.S. at 711-12

(1974) (“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 legis-

lative history to the contrary”) to argue for a presump-

tion that Section 102 should be applied retroactively be-

cause it came on the books while her case was pending.

See also, Thorpe, 393 U.S. at 281-82 (1969). Before

addressing this case assuming Bradley/Thorpe arguendo,

Respondents respectfully submit that history has shown

that current efforts to apply Bradley’Thorpe have created

too much confusion and disarray in the law. Their twig

cannot be grafted onto Bowen's tree. The Court should

use this opportunity to stop their misdirected growth.

Bradley and its progenitor Thorpe are unto themselves.

Before, and since, the Court has articulated the principle

that retroactivity is not favored and has sought “lan-

guage [that] requires this [retroactive] result.” Bowen, at

208. See also, United States v. Security Indus. Bank, 459

U.S. 70, 79 (1982) (“statutes operate only prospec-

tively”).

The Court already has attempted to limit the scope of

Bradley and Thorpe. In Bennett v. New Jersey, 470 US.

632 (1985), which issued after both Bradley and Thorpe,

the Court noted that Bradley’s self-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.” /d., at

639-40.

Yet the experience of the lower courts in trying to deal

with the ambiguities of discretion created by a seeming

choice between the recent Bradley/Thorpe approach

(which Petitioner interprets to mean statutes are pre-

sumed retroactive) and the long-standing principle just

reaffirmed in Bowen (which confirms statutes are pre-

sumed prospective) demonstrates the need for a clear

restatement of the rule. Petitioner’s own catalogue (Pe-

tition in 92-757, pp. E-1 to E-27, listing more than 250

cases on the 1991 Act) reflects the vast amount of judi-

cial time and energy spent on the issue in the context of

this one statute alone. What could and should be simple

and clear as a default rule, permitting the lower courts

to move on to the merits of justice, is instead a cauldron

of confusion that has suspended and delayed the advance

of the law.”

A critical element of the confusion is demonstrated by

Petitioners’ use of Bradley as a jumping off point in these

consolidated cases. The use is expansive—it effectively

would reverse the principle that the law disfavors retro-

activity. If Bradley means what Petitioner contends—

that the phrase “apply the law in effect at the time it

renders its decision” means a new statute presumptively

® What may have been obvious to law students—“[t]he principle

that statutes operate only prospectively, while judicial decisions

operate retrospectively, is familiar to every law student,” United

States v. Security Indus. Bank, 459 at 79 (1982)—is no longer so

to lawyers. Cf., for example, 90 4th Fed. Digest at p. 188 (1992):

E.D. Ark. 1991. There is a strong presumption against

retroactivity of statutes. Wiener v. Farm Credit Bank of

St. Louis, 759 F. Supp. 510 [aff’d, 975 F.2d 1350 (8th Cir.

1992) }.

N.D. Cal. 1992. Presumption exists in favor of retroactive

application of statutes, .. . Stender v. Lucky Stores, Inc., 780

F. Supp. 1302.

applies to human conduct and trials that preceded it—

then the presumption against retroactivity of laws regu-

lating human conduct becomes a presumption in favor of

retroactivity, and Bowen and 200 years of principle are

cut down to die.

Justice Scalia has noted the many reasons for the Court

to reaffirm the “clear rule” that “absent specific indication

to the contrary, the operation of nonpenal legislation is

prospective only.” Kaiser Aluminum & Chemical Corp.

v. Bonjorno, 494 U.S. 827, 841 (1990) (Scalia, J., con-

curring). After reciting examples demonstrating that the

presumption against retroactive application of statutes is

both ancient and sacred in the law, and explaining the

derivation of the Thorpe and Bradley results, Justice

Scalia gets to the heart of the matter:

It is significant that not a single one of the earlier

cases cited in Thorpe and Bradley—except, of

course, the cases dealing with judicial decisions

rather than statutes and the case dealing with repeal

of a criminal statute—even purports to be applying

a presumption of retroactivity. They purport to be

following the express command of the statute, or

not to be acting retroactively at all.

Id., at 850. This recognition, buttressed by lengthy ex-

position and recitation of the cases themselves, id., at

848-53, isolates the problem with Thorpe and Bradley:

their verbiage unintentionally created fallow ground, and

counsel for litigants subsequently have planted the seed

of expansive misreading of their scope and effect, by

using the wrong “point of departure” in the analysis of

prospective or retroactive application. /d., at 858. Brad-

ley and Thorpe did not expressly address or reverse the

historical presumption against retroactive application of

Statutes regulating human conduct. But they have been

interpreted as doing just that.

Justice Scalia’s words in 1990 were prescient in one

aspect, to be sure:

The Thorpe-Bradley presumption of retroactivity,

which is arguably formulated to apply to a rela-

tively narrow class of cases but which logically must

be extended across-the-board, misleads prospective

litigants and confuses judges of the lower courts.

Id. The hundreds of cases cited in the Petition For Cer-

tiorari here are vivid testimony to that misleading and

confusing effect. And what has happened here can, and

likely will, be repeated for other statutes enacted by Con-

gress in other contexts. Once the seeds are on the wind,

they will land and grow.

There are other reasons for pulling the weed that is

growing from Bradley-Thorpe. The first is that it is

impractical in the realm of regulation of human conduct.

A presumption of retroactivity is a presumption that hu-

man actions may be given consequences that did not

exist, and thus were not known, when the actions occurred.

This not only would reverse the principle of non-retro-

activity; it would strike both the heart of the universal

purpose of the law, to guide conduct, and the notions

of fairness and justice on which such yuidance is based.

If laws are to “be made and published only to the intent

that by them every man should be put in remembrance

of his duty,” Sir Thomas More, Utopia, bk. 2 105 (E.P.

Dutton & Co., Inc.) (1955) (1516), then “[l]aw as a

guide to conduct is reduced to the level of mere futility

if it is unknown and unknowable.” Benjamin N. Cardozo,

The Growth of the Law (Yale University Press) (1924),

p. 3. Because they change the consequences of actions

taken before their existence to guide conduct, “retrospec-

tive laws are . .. generally unjust; and .. . neither

accord with sound legislation nor with the fundamental

principles of the social compact.” Story, J., Commen-

taries On The Constitution § 1398 (1873). Yet Peti-

tioner’s use of Bradley-Thorpe would make all such laws

presumptively retroactive to regulate human conduct.

The second reason for discarding further judicial use

of a presumption of retroactivity is that it forces the

courts into the realm of policy. Bradley itself recognizes

the need for escape from presumption and invokes the

concept of “manifest injustice.” The presumption of retro-

activity has that effect, to be sure. (See infra, pp. 31-

35). The concept may be soothing in theory, but it is

wrenching in practice. It pulls the courts onto very soft

ground, where the result of their thinking can and does

“expand or contract the effect of legislative action” across

time. Bonjorno, 494 U.S. at 857 (Scalia, J., concurring).

If “manifest injustice” is not ascertained by the court,

human conduct long since past and tried may be re-

vived and new consequences attached to it; if “manifest

injustice” is ascertained, the human conduct and its trial

may remain in repose. And what determines “manifest

injustice”? This is adequately unclear. As Justice Scalia

explains, “[a] rule of law, designed to give statutes the

effect Congress intended, has thus been transformed to a

rule of discretion, ... ” /d. By what that discretion

would be fettered, if at all, is unstated and unknown.

Individual courts, motivated by “mercy, or compassion,

or social utility, or whatever other policy motivation might

make one favor a particular result,” must attempt to

“judge action on the basis of a legal rule that was not

even in effect when the action was taken.” /d. Legisla-

tion by Congress (“should we make this conduct sub-

ject to that rule, or not?”) becomes legislation by the

court (“should I make this conduct subject to that rule,

or not?”). The temptations lead away from predictable

justice.

Third, Congress itself needs some restraint. Its power

to create law is “awesome.” Luddington v. Indiana Bell

Tel. Co., 966 F.2d 225, 228 (7th Cir. 1992), petition

for cert. filed (Dec. 3, 1992). Its ability to create sub-

stantive rights and obligations is an exercise of the public

will, withhout any concern for “incremental change.” /d.

Congress needs no justification to depart from current

Statutes that serve to guide conduct, and it has no “tra-

dition of modesty.” /d. Beyond the Constitution, Con-

gress’ power to affect the lives and fortunes of the citi-

zens of the country and the companies that provide them

work knows few restraints. One can overexercise power.

Congress is not harmed, and faith in its processes and

prescriptions is aided, if “this power is held a little in

check by the presumption that its handiwork is to be

applied only to future conduct.” /d.

Fourth, the use of a presumption of retroactivity in-

flicts a terrible price upon judicial administration. It is

effectively a one-two punch. Congress can be, and often

has been, silent as to retroactivity when enacting a statute

regulating human conduct. Under the “presumption” of

retroactivity asserted under Bradley Thorpe, courts must

—in virtually every case brought under such a statute—

ascertain whether that silence works a manifest injustice.

The burden is worsened if, as is logical, manifest injustice

is separately determined in the context of each individual

case brought under the statute. As each of these separate

decisions is rendered (the results may be inconsistent),

the burden passes to courts of appeal, who must attempt

to reconcile them or distinguish them on the facts of in-

dividual cases. The matrix of permutations and combina-

tions of results—under each statute, and then under them

all collectively— would pound on the minds of jurists,

pushing them away from the merits of justice and into

the discretionary interstices of a whole new jurisprudence

of “manifest injustice.” And then, while the federal judi-

ciary staggers under this new burden, the second body

blow comes: for those cases where “manifest injustice”

is not found, the courts would have to reach back to

rewrite the obligations and consequences, the rights and

liabilities, which would (unknowingly, because retroac-

tively) guide the human conduct of the parties to cases

and adjust their results, retrospectively. See, e.g., Lud-

dington, 966 F.2d at 299 (“Retroactive application

across the board would produce massive dislocations in

ongoing litigation . . . [and] engender enormous satellite

litigation and associated uncertainty to fix an indistinct

boundary”). The impracticality of such an approach is

obvious.

The manner of containing the problem is not difficult.

It requires only a confirmation that, when a court applies

a law in effect at the time of its decision, it must still

apply the sacred principle of statutes regulating human

conduct—they are not to be applied retrospectively unless

Congress manifests such an intention clearly and un-

equivocally. A court’s first recognition may be to ascer-

tain what laws are in effect when it reaches its decision,

but its second recognition must be not to apply a law to

human conduct which has preceded the effective date of

the statute, unless Congress clearly has so provided.

Litigants’ misuse and judges’ confusion over Bradley

and Thorpe in the context of human conduct have created

an aberrant growth that should be cut clean while it is

still young. The clear rule reaffirmed in Bowen should

stand.

Ill. EVEN UNDER BRADLEY RETROACTIVE APPLI-

CATION CANNOT STAND

Even assuming arguendo that Bradley is used as a

point of departure, Petitioner’s reliance on it here is mis-

placed.

A. There Is Statutory History To The Contrary

As noted, supra at pp. 13-17, when Congress’ draft-

ing path and choices, and the resulting language of the

effective provisions of the statute, as interpreted by the

courts, properly are considered, they lead to a conclusion

of prospective operation. That same analysis rejects the

Bradley presumption. There is statutory history to the

contrary. Bradley, 416 U.S. at 711-12.

—"

B. The Act Creates A New Substantive Liability

Under Bennett, 470 U.S. at 639-40, “statutes affecting

substantive rights and liabilities are presumed to have

only prospective effect.” See also United States v. Se-

curity Indus. Bank, 459 U.S. at 79 (1982); Greene v.

United States, 376 U.S. 149, 160 (1964). In Bennett,

470 U.S. at 640, the Court recognized that Bradley itself

noted that its statutory change “did not affect substantive

obligations.” Section 102 clearly affects Petitioner’s sub-

Sstantive rights and Respondents’ substantive obligations

and liabilities.

1. The Act Increases Respondents’ Substantive

Liabitities

There can be no doubt that the addition of compensa-

tory and punitive damages affected—expanded by up to

$300,000 per claim—employers’ “substantive liabilities”

under Title VII. That such an increase in potential liability

derived from a statute whose clear purpose is to regulate

human conduct impacts that conduct. As such, it affects

both substantive liabilities and substantive obligations."

The impact on liabilities is obvious: The potential dam-

age claim has increased from actual lost wages and other

restitutionary relief to that relief plus (for large employ-

ers) up to an additional $300,000."

1” As noted below, the increase in the degree of financial liability

is driven by a recognition of new tort-like personal injuries and

legal damages to compensate for them. But even were the $300,000

increase solely one of degree, it would still create and impose new

liability. As Justice Holmes explained:

I have heard it suggested that the difference is one of degree.

I am the last man in the world to quarrel with a distinction

simply because it is one of degree. Most distinctions, in my

opinion, are of that sort, and are none the worse for it.

Haddock v. Haddock, 201 U.S. 562, 631 (1906) (Holmes, J., dis-

senting).

'! Petitioner’s disingenuous approach aids and abets her faulty

logic. She does not address a simple question: if one person seeks

2. Prospective Application Is Essential To Permit

Employers To Adjust Their Internal Regulation

Of Human Conduct

As the court of appeals noted below:

the amended damage provisions of the Act are a

seachange in employer liability for Title VII viola-

tions.

... There is a practical point at which a dramatic

change in the remedial consequences of a rule works

change in the normative reach of the rule itself.

Landgraf, 968 F.2d at 433. See also, Luddington v.

Indiana Bell Tel. Co., 966 F.2d 225, 229:

[Changes in remedies] can have as profound an im-

pact on behavior outside the courtroom as avowedly

substantive changes. . . . The new statute .

subjects employers to greater liabilities.

... The amount of care that individuals and firms

take to avoid subjecting themselves to liability

whether civil or criminal is a function of the severity

of the sanction, and when the severity is increased

they are entitled to an opportunity to readjust their

level of care in light of the new environment created

by the change. That is the philosophy behind the

ex post facto clause and also behind the interpretive

to obtain money from another person, how can that not be sub-

stantive? Petitioner wants to hide under labels. She wants to

leverage the labels with inferences from the legislative perspective.

What she does not want to do, because it would bring the effect of

her claim out into the open, is look at what will happen if she

prevails here. What will happen is she will have a new claim for

money today, based on an injury first recognized under Title VII

in 1991 (“mental anguish”), that she did not have when she was

employed, when she quit, when she filed her charge and her lawsuit,

when she tried her lawsuit and lost it, or when she appealed it.

That new claim for money is substantive. However Petitioner

would label it, the Act, if applied retroactively, would have an effect

on her substantive rights (they might be worth more) and on

Respondents’ substantive liabilities (they might increase).

principle that presumes that a new civil statute ap-

— only to conduct that occurs after its effective

ate.

This is especially true where the human conduct being

regulated occurs at many levels of the respondent employ-

er’s operation. The case here is illustrative. The human

conduct that the court below found caused Petitioner some

“mental anguish” was “sexual harassment,” “the source

of which was a fellow employee named John Williams.”

(Jt.App. 9, 41, 10, 410) The employer did not com-

mit the harassment; Petitioner's fellow employee did.

Neither was a supervisor. The theory of substantive lia-

bility for the harassment that Petitioner espouses against

Respondents is thus derivative and based on respondeat

superior.

_ Such a claim of vicarious liability makes all the more

important that employers have the opportunity to train

and counsel their supervision and plant management in

how to respond. That effort, and the resources committed

to it, is affected by the source and degree of liability in-

volved. Landgraf, 968 F.2d at 433; Luddington, 966

F.2d at 229. For Respondents to be subjected retroac-

tively to materially increased exposure for human conduct

it did not commit patently increases its substantive liabili-

ties. Cf., Usery v. Turner Elkhorn Mining Co., 428 US.

1, 17-18) (1976) (noting a hesitancy “to approve the

retrospective imposition of liability on any theory of

deterrence” ).”*

#2 Petitioner invokes Holmes’ “bad man” (Pet. Br. at 31) to

suggest employers will assume a vested right to discriminate and

act with impunity absent retroactive application of the Act. The

reference is loud but inaccurate and illogical.

First, the facts here disprove the assumption. Three separate

reviews, by the EEOC, the district court and the court of appeals,

found that the efforts of USI eliminated the hostile working envi-

ronment. The employer took steps to stop the harassment, without

any recognition of tort-like injuries or availability of legal damages,

and thus neither the agency nor the courts had any recognized

3. Section 102 Implicates Both New Substantive

Rights And New Substantive Liabilities

Petitioner deals with Section 102 as if all it does is

increase the price to be paid by an employer for discrimi-

nation. That is not so. The provisions of Section 102 do

much more. They add a new cause of action, premised

upon injuries not even recognized under Title VII as it

existed from 1964 until late 1991, for which new reme-

dies are available.

This Court recognized the impact of the provisions of

Section 102 in United States v. Burke, US. .

112 S.Ct. 1867 (1992). Writing last term, but address-

ing Title VII as it existed prior to the amendments made

injury left to remedy under Title VII. If there are “bad men” out

there hypothetically, USI was not one.

Second, Petitioner cites Holmes’ use of a hypothetical “bad man”

without learning the lesson Holmes was trying to teach. He saw

the law as a prospective means to guide the conduct of people based

not on intrinsic morality but on their ability to predict consequences

of different courses of action. For Holmes, the “bad man” proved

the need to know what the consequences of human actions would

be: “[{I]f we take the view of our friend the bad man we shall

find that he does not care two straws for the axioms or deductions,

but that he does want to know what the .. . courts are likely to

do in fact. I am much of his mind.” Holmes, The Path Of The

Law, 10 Harvard Law Review 457, 460-61 (1897). Statutes are

one means: “It is to make the prophecies easier to be remembered

and to be understood .. . that statutes are passed in a general

form.” Id., at 458. And the purpose of such laws remains to guide

conduct, to let people know “under what circumstances and how far

they will run the risk of coming against what is so much stronger

than themselves.” Jd., at 457. Deterrence of human conduct by

avoidance of risk and liability is Holmes’ method of the law, “to

advise people in such a way as to keep them out of court.” Id. He

is four-square with the principle against retroactive application of

laws regulating human conduct: What has already occurred cannot

be deterred, and liability inflicted beyond that forewarned by law

when the conduct occurs is not only unjust but inhibits people’s

acceptance and use of the law as a deterring prophecy. Retroactive

recognition of injuries and imposition of liabilities blocks the path

of the law as a guide to human conduct.

by the Civil Rights Act of 1991, the Court recognized

that before 1991 Title VII “does not allow for compensa-

tory or punitive damages; instead, it limits available reme-

dies to backpay, injunctions, and other equitable relief.”

Id., at 1873." Therefore, “the circumscribed remedies

available under Title VII stand in marked contrast not

only to those available under traditional tort law, but

under other federal antidiscrimination statutes, as well.”

Id. — the source of the limited focus was Congress

itself:

Notwithstanding a common-law tradition of broad

tort damages and the existence of other federal anti-

discrimination statutes offering similarly broad rem-

edies, Congress declined to recompense Title VII

plaintiffs for anything beyond the wages properly

due them. . . . Thus, we cannot say that a statute

such as Title VII, whose sole remedial focus is the

award of backwages, redresses a tort-like personal

injury....

Id. at 1874. The substantive rights for plaintiffs under

Title VII before the enactment of the Civil Rights Act

of 1991 did not include the right to damages for tort-like

personal injuries; Title VII neither recognized nor reme-

died tort-like personal injuries.'* And the substantive lia-

‘8 Here, such relief was not necessary below because, as the

EEOC, district court and court of appeals all recognized, USI had

undertaken the relief itself. Jt. App. 5 (EEOC) (“since [USI]

undertook prompt remedial action, the Commission, accordingly,

deems that no additional relief is necessary”) ; Jt. App. 11 (district

court) (“USI had taken steps .. . to eliminate the hostile working

environment arising from the sexual harassment’); Jt. App. 26

(court of appeals) (Landgraf challenged, but did not prevail on,

“the propriety of USI’s reaction to the harassment”).

Title VII as it existed until November 1991 says nothing of

personal injuries. It was not until the 1991 Act that Title VII's

coverage extended to the injuries described in Section 102(b) (3):

“future pecuniary losses, emotional pain, suffering, inconvenience,

ese anguish, loss of enjoyment of life, and other nonpecuniary

osses,”’

bilities for defendants under Title VII before the enact-

ment of the Civil Rights Act of 1991 did not include the

obligation to pay damages for such injuries. Title VII as

it then existed provided no such cause of action.

The Court, writing after the enactment of the 1991

amendments from the Act, made clear that these sub-

stantive matters changed with the 1991 Act but that the

Court was not prepared to transport them retroactively

back to the consequences of human actions at times be-

fore the 1991 Act:

Under the Civil Rights Act of 1991, victims of in-

tentional discrimination are entitled to a jury trial,

at which they may recover compensatory damages

for “future pecuniary losses, emotional pain, suffer-

ing, inconvenience, mental anguish, loss of enjoy-

ment of life, and other nonpecuniary losses,” as well

as punitive damages. See Pub. L. 102-66, 105 Stat.

1073. . . . [W]e believe that Congress’ decision to

permit jury trials and compensatory and punitive

damages under the amended act signals a marked

change in its 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 law-

suit.

Id., at 1874, n.12 (emphasis added).

If a substantively retroactive law is one that creates

“a quality or effect to acts or conduct which they did

not have or did not contemplate when they were per-

formed,” Union Pacific R.R., 231 U.S. at 199, or one that

“changes the legal consequences of acts completed before

its effective date,” Miller v. Florida, 482 U.S. 423, 431

(1987), quoting Weaver v. Graham, 450 US. 24, 31

(1981), then the compensatory and punitive damage

provisions of Section 102 certainly are substantive in

how they would affect Respondents retroactively. Its pro-

visions are a “marked change” and they “cannot be im-

ported back into analysis of the statute as it existed at

the time of this lawsuit.” Burke, 112 S.Ct., at 1874,

n.12. Even assuming Bradley, no presumption of retro-

active application of Section 102 applies, because Section

102 “affect[s] substantive rights and liabilities [and thus

is] presumed to have only prospective effect.” Bennett,

470 U.S. at 639-40; Security Indus. Bank, 459 U.S. at

79; Greene v. United States, 376 U.S. at 160.

C. The New Jury Trial Procedure Follows The New

Substantive Liability

Before the Civil Rights Act of 1991, Title VII cases

were tried to the court. 42 U.S.C. § 2000e-5(f)(4). Sec-

tion 102(c) changes that, by providing:

If a complaining party seeks compensatory or

punitive damages under this section [102, which did

not exist until 1991 ]—

(1) any party may demand a trial by jury; and

(2) the court shall not inform the jury of the lim-

itations described in subsection (b)(3).

This language makes clear that the new right to a jury

trial is dependent upon the availability of the new com-

pensatory or punitive damages. The jury trial of Section

102(c) is thus linked to the substantive liability of Sec-

tion 102(a). Because the substantive liability precludes

retroactive application, the jury trial, having no inde-

pendent purpose, is precluded as well.

D. Retroactive Application Of The New Substantive

Rights And Liabilities And Jury Trial Provisions

Would Be Manifestly Unjust

Ignoring arguendo the aberrational injection of Bradley

and Thorpe into the realm of regulation of human con-

duct; ignoring arguendo the substantive rights and liabil-

ities expanded and thus affected by Section 102; and as-

suming arguendo the retroactive application of Section

102’s punitive and cmpensatory damage provisions, via

jury trial, to Respondents here, such an application is

“manifestly unjust.” There are many reasons.

To begin, for a defendant to receive and respond to

allegations, to defend them at trial, to be put to an appeal,

to have it be fully briefed, and then to have the whole

process be derailed and recycled by a communication

from Petitioner’s counsel to the court, ultimately seeking

ex post facto a new proceeding with expanded liability

from a new trier of fact, unfairly upsets the justice al-

ready dispensed. In layman’s terms, it wasn’t over when

it should have been. The ad hoc growth of a new pro-

ceeding would produce a windfall for the Petitioner. Jus-

tice is not well-dispensed from a merry-go-round. See

Landgraf, 968 F.2d at 432-33, rejecting the notion of

a remand for a jury trial:

We are not persuaded that Congress intended to

upset cases whiche were properly tried under the law

at the time of trial. [citing Bennett] To require

USI to retry this case because of a statutory change

enacted after the trial was completed would be an

injustice and a waste of judicial resources.

Second, the proceeding would have to examine all over

again the facts of Petitioner’s claim, which would be a

clear waste of precious judicial time and energy, or

would have to bind Respondents to the litigation tactics

and judgments they made in a proceeding in which mat-

ters such as punitive damages and compensatory dam-

ages were not at issue and in which the trier of fact

was an experienced Federal judge, not a jury. There

are many aspects of any judicial proceeding—from the

understanding of the law at the time to the strategic

judgments of offers of evidence to the nuances of stipu-

lations—that may change dramatically if the plaintiff's

state of mind is a source of potential injury and dam-

ages; if the trier can add punishment to remedy; if the

trier of fact is jury, not judge; and so on. The injustice

a version of “bait and switch”—is manifest.

Third, the result would be freakish and arbitrary. Em-

ployers whose employees engaged in conduct in the mid-

1980s similar to that involved here would be left free

in history, without retroactive application of Section 102

to that conduct, while Respondents here would be retro-

actively bound to respond to Section 102 as if it had

been in effect when such human conduct occurred. The

selective rewriting of history that would be occasioned by

a retroactive application of Section 102 would not im-

pact employees and employers evenly, nor with a just

hand. Some would have the rights and liabilities estab-

lished by their proceedings touched not a whit; others,

like Respondents here, would watch the records in their

proceedings no longer be worth the paper they are printed

on. An extra-record letter from counsel to the court at

the tail end of an appeal is an odd, unusual and unjust

means to distinguish among employers and employees to

see which suddenly have new rights and liabilities and

which do not.

Fourth, Congress made no distinction between punitive

and compensatory damages in Section 102. The $300,-

000 cap applies collectively. The notion that an em-

ployer may be punished—subjected to punitive damages

—in an ex post facto proceeding, based on human con-

duct that occurred before the possible punishment was

even known, would be unjust beyond quarrel. See, e.g.,

Luddington, 966 F.2d 225, 227-28 (1992):

The idea that the law should confine its prohibitions

and regulations to future conduct, so that the per-

sons subject to the law can conform their conduct

to it and thus avoid being punished, whether crim-

inally or civilly, for conduct that they had no reason

to think unlawful, is a component of the traditional

conception of the “rule of law.” . . . [CJonformity

to it is the right policy for courts to follow in default

of other guidance.

Cf., Weaver v. Graham, 450 U.S. 24, 28 (1981) (“ ‘[t}he

enhancement of a... penalty . . . seems to come within

the same mischief as the creation of a. . . penalty after

the fact’”) (quoting Calder v. Bull, 3 U.S. (3 Dall.)

386, 397 (1798) (Paterson, J.) ).

Fifth, the employers involved would have had no

opportunity to measure the risk of their conduct. A po-

tential $300,000 swing in exposure will have a deterrent

effect. Indeed, that is precisely what Congress recog-

nized. See Section 2(1) of the Act: “additional reme-

dies under Federal law are needed to deter unlawful

harassment and intentional discrimination in the work-

place.” There is an obvious discrepancy between a statu-

tory purpose to deter conduct and a retroactive applica-

tion of a substantive liability provision to human conduct

that occurred six years ago. Cf., Usery v. Turner Elk-

horn Mining Co., 428 U.S. at 17-18 (expressing the

Court’s hesitancy “to approve the retrospective imposition

of liability on any theory of deterrence”). It is impossible

to deter conduct that has already occurred.

The corollary of deterrence is an opportunity to avoid

the penalty imposed for the violation. For employers

such as Respondents here to be subjected to the penalty

withhout the opportunity to avoid it would be manifestly

unjust. See, e.g., Landgraf, 968 F.2d at 433:

It would be an injustice . . . to charge individual

employers with anticipating this change in damages

available under Title VII. . . . [(C]ompensatory and

punitive damages impose ‘an additional or unforeseen

obligation’ contrary to the well-settled law before the

amendments. [quoting Bradley, 416 U.S. at 721).

See also Luddington, 966 F.2d at 229 (“such changes

[in damages] can have as profound an impact on be-

havior outside the courtroom as avowedly substantive

changes”).

Finally, the discretion provided to courts to implement

the concept of “manifest injustice” in the context of sub-

stantive rights and liabilities itself would be unjust. The

context is a loophole, a sea of discretion. The substan-

tive rights and liabilities created by Title VII alone cover

virtually the full spectrum of employment decisions, with

plaintiffs of both sexes and every race, religion, national

origin and other protected criteria. At any given point

in time, their proceedings are at stages across the entire

gamut from charge to appeal. The resulting matrix of

possibilities against which to create new claims and pro-

ceedings is virtually infinite. And there would be nothing

save the words “manifest injustice” to guide the courts.

The resulting proliferation of rulings, all subject to appeal,

can hardly be expected to have that degree of uniformity

and predictability which tells the litigants involved they

have been treated fairly.

What Petitioner seeks here is a rule that would rewrite

the substantive effects of history, by allowing a plaintiff

retroactively to create and expand substantive legal re-

lief, and thus retroactively to impose on a defendant new

and expanded substantive legal liability, unknown to the

defendant in the exercise of its obligations and unavail-

able to the plaintiff in the pursuit of her rights at the time

when the relevant human actions occurred, using a pro-

ceeding not even created until long after the conduct

giving rise to the dispute occurred and well after the

dispute had been tried. That is manifestly unjust.’

15 In an era where the rights of the individual are expanding by

increased Congressional regulation of “human action,” there will

always be individuals whose “human actions” fall on the “before”

rather than the “after” side of the line when Congress creates a

new substantive right and imposes a new substantive liability. It

is a natural instinct for such individuals to act in their own self-

interest, seek to remake history, and drag the benefits of the future

into the past. Lawyers may enjoy this exercise, but few others

will. The courts risk loss of precious time and energy. The Con-

gress risks judicial discretion that undercuts or overrides legisla-

tive intent. The humans whose actions are regulated will lose the

ability to look to positive law as a guide to their conduct, for fear

next year’s enactments will be applied backwards in time and shake

their reliance upon the law like leaves from a tree in the wind.

The result is that in the name of equality the quality of law, justice

and life risks being degraded for all.

IV. PROSPECTIVE APPLICATION WILL PARALLEL

THE PROGRESSIVE PATH OF THE LAW

It is quite evident that there is no basis to find retro-

active application of Section 102 to pending cases in-

volving human conduct and trials that occurred prior to

the enactment of the 1991 Act. What Congress did, and

how Congress did it, simply defeats any claim of retro-

spective operation of the Act. And why Congress did

what it did does not compel retroactive operation either.

To the contrary, the purposes of the 1991 Congress en-

acting its Civil Rights Act through the compromises it

reached comport entirely with a prospective operation of

the statute.

Congress’ findings that gave rise to the Act asserted

the need for both deterrence and additional protections

against discrimination. See Section 2(1) (“additional

remedies under Federal law are needed to deter unlawful

harassment and intentional discrimination in the work-

place”) and 2(3) (“legislation is necessary to provide

additional protections against unlawful discrimination in

employment”). These are entirely consistent with pro-

spective application. The new regulations of human con-

duct, injuries and remedies created by the Act will serve

to provide “additional protections” against discrimination

in the future and “additional remedies” when it does

occur; and they will serve to “deter” the conduct and its

results made actionable by the Act. As this Court has

noted, Congress’ supporting reports recognized the need

to acknowledge new injuries and provide new compensa-

tory and punitive damages for them via Section 102.

Burke, 112 S.Ct. at 1874, n.12. Congress’ purposes will

be served with prospective application of Section 102.

In the regulation of human conduct, at the federal

level, it is the actions of Congress that move the law

forward. In 1991, a new Congress determined to expand

recognized injuries under Title VII (to include those

“tort-like” injuries identified in Section 102(b)(3)) and

to create new liabilities under Title VII (to include com-

pensatory and punitive damages) to recompense individ-

uals who suffer such injuries and file claims based on

them. What the 1991 Congress did to create these ex-

panded rights and liabilities based on the human conduct

regulated by Title VII in 1991 should be applied, prospec-

tively.

The presumption against retroactivity of laws regulat-

ing human conduct has its basis in fundamental notions

of substantial justice and fair play. Its application in the

American system of government both reflects and rein-

forces basic attributes of our democratic institutions. The

legislative process is not static; rather, it is a dynamic

process in which shifting coalitions of interest groups

forge coalitions, make compromises, and ultimately forge,

through the legislative struggle, an act of Congress. This

process repeats itself each session of Congress—there is

not but one Congress, rather a series of Congresses, each

of which is entitled to respect as the legislative representa-

tives of the people at any given point in time.

The law that was in effect at the time that the facts of

this lawsuit occurred, at the time that this lawsuit was

instituted, and at the time that this lawsuit was tried,

represented a compromise of conflicting interests by a

Congress that intended such human conduct to be gov-

erned by a law that it had passed. That Congress, under

basic principles of American public law, could not bind

future Congresses and prohibit them from ever altering

that law, and the balance of interests that it represented.

But just as an earlier Congress cannot bind a future

Congress, a future Congress should not be presumed to

undo the work of earlier Congresses absent explicit statu-

tory language, particularly in the realm of regulation of

human conduct.

Explicit statutory language exists regarding the law

applicable to this case—the conduct occurred after the

effective date of the Civil Rights Act of 1964, as amended

in 1972 and 1978, and those Congresses intended that

this conduct be governed by the substantive rules and

liabilities that had been enacted. Under those substantive

rules, USI was found by the EEOC, the district court and

the court of appeals to have responded properly and in a

manner that alleviated the harassment being caused by

Petitioner's fellow employee, so that neither injunctive

nor declaratory relief was warranted. Under those sub-

stantive rules, there was no recognition under Title VII

of Petitioner's mental anguish caused by her fellow em-

ployee as an injury, nor any provision of legal damages

under Title VII to compensate her for it. Absent explicit

statutory language erasing the positive law created by the

earlier Congresses, there is no basis for applying a differ-

ent rule of law to this case. To do so would be a usurpa-

tion of the legislative authority possessed by the Ejighty-

Eighth Congress that enacted the Civil Rights Act of

1964, and the Ninety-Second and Ninety-Fifth Congresses

that amended it in 1972 and 1978.

Under the Petitioner’s view of the law, there would be

no finality to litigation. The dynamic legislative process,

which in some respect or another is constantly changing,

would necessitate reconsideration of a myriad of deci-

sions in lawsuits at all stages of development, simply be-

cause Congress has not spoken clearly to the question of

retroactivity. This position would destroy the wisdom

handed down over the generations by the illustrious mem-

bers of this Court—that the principle of non-retroactivity

of laws regulating human conduct has been held sacred in

the United States, and that clear language from Congress

is required before a court will adopt the “odious construc-

tion” of making a statute retroactive.”

16 There is a visionary purpose to the Court’s historical principle

that “retroactivity is not favored in the law’’—to keep the creation

of law at a time separate from and prior to the application of it,

so that the “policy preferences” of the legislature may not be cre-

The retroactive application of the 1991 amendments

to this case would erase the legislative compromise that

earlier Congresses deemed appropriate to govern the hu-

man conduct that occurred in this case. That position

flies in the face of centuries of jurisprudence, sound prin-

ciples of American government, the realities of the legisla-

tive process, and fundamental notions of substantial jus-

tice and fair play.

The progressive path of the law is served societally

with a prospective application of the statute. The new

injuries are now recognized, and the new damages on

which they are based are now available under all statutes

addressed by Section 102. Employers are now on notice

of the increased liabilities that may accrue, and those

increased liabilities serve to motivate increased employer

vigilance against harassment and intentional discrimina-

tion, creating the deterrent effect Congress desires. Should

human actions nevertheless be imperfect, the new injuries

Congress recognized and the new damages Congress pro-

vided for them in the 1991 Act are now available. Con-

gress’ purposes are served.

ated at the same time (or even after) the courts reward or punish

the conduct to which the preferences are applied. A presumption

that Congress at least will let citizens know—in “clear, strong and

imperative” language of “unequivocal and flexible import”—when

it would rewrite the effects of history that cannot be recovered from

the past helps them have faith in Congress and the courts as a guide

to their conduct in the future. It is fundamental to the rule of law.

CONCLUSION

The judgment of the Court of Appeals holding that the

Civil Rights Act of 1991 did not retroactively apply to

this case should be affirmed.

Respectfully submitted,

DAVID N. SHANE *

BAKER & DANIELS

300 N. Meridian Street

Suite 2700

Indianapolis, IN 46204

(317) 237-0300

Counsel for Respondents

June 25, 1993 * Counsel of Record

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