Respondents Brief — Rivers v. Roadway Express, Inc.

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IN THE

Supreme Court of the sates Biates

OCTOBER TERM, 1992

MAuRICE Rivers and Rosert C. DAVISON,

Petitioners,

Vv.

Roapway Express, INc.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF FOR THE RESPONDENT

GLEN D. NAGER

(Counsel of Record)

LAURIE F’. CALDER

JONES, Day, REAVIS & POGUE

1450 G Street, N.W.

Washington, D.C. 20005-2088

(202) 879-3939

JOHN T. LANDWEHR

THOMAS J. GIBNEY

EASTMAN & SMITH

One SeaGate, 24th Floor

P.O. Box 10082

Toledo, Ohio 43699-0032

(419) 241-6000

Attorneys for Respondent

WiLson - Eras Printinc Co.. Inc. . 789-0096 - WasHINGTON. D.C 20001

QUESTION PRESENTED

Whether Section 101 of the Civil Rights Act of 199]

applies to claims arising from conduct which occurred

and which was adjudicated to be non-discriminatory prior

to the date on which Section 101 became law.

(i)

PARENTS AND SUBSIDIARIES

In accordance with Rule 29.1 of the Rules of the

Court, respondent included its list of parent companies

and subsidiaries in its Brief in Opposition to Petition for

Writ of Certiorari, at ii,

TABLE OF CONTENTS

Page

QUESTION PRESENTED... i

PARENTS AND SUBSIDIARIES... ii

TABLE OF AUTHORITIES v

STATUTES INVOLVED 1

STATEMENT OF THE CASE... sts 1

SUMMARY OF ARGUMENT... 4

IE ae sitinherihcadaateeniaaitaaniimaaias 7

I. A STATUTE SHOULD NOT BE APPLIED

TO CONDUCT OR TRIALS OCCURRING BE-

FORE THE DATE OF ITS ENACTMENT

UNLESS ITS TERMS CLEARLY AND UN.

EQUIVOCALLY COMMAND A RETROAC.-

ee EE dete ee iehiaion 8

Il. THE CIVIL RIGHTS ACT OF 1991 DOES

NOT CLEARLY AND UNEQUIVOCALLY

COMMAND APPLICATION OF ITS TERMS

TO CONDUCT OR TRIALS OCCURRING

BEFORE THE DATE OF ITS ENACTMENT | 13

A. The Language Of Section 402(a) Does Not

Clearly And Unequivocally Command Retro-

CIIPUD cvsiisshtnisslintatiteliaai eo ea a, 14

B. The Act’s Structure And Legislative His-

tory Do Not Clearly And Unequivocally

Command Retroactive Application _.. 16

C. The Purposes Of The Act Do Not Establish

A Clear And Unequivocal Command For

Retroactivity senhtsahiienreetaiaes 24

TABLE OF CONTENTS—Continued

Ill. THE PRESUMPTION THAT A STATUTE

DOES NOT APPLY TO CONDUCT OR

TRIALS OCCURRING BEFORE THE DATE

OF ITS ENACTMENT APPLIES TO SEC-

TION 101 OF THE CIVIL RIGHTS ACT OF

A. Petitioners Err In Characterizing Section

101 As A Mere Remedial, Procedural Or

Restorative Law

1. Section 101 Does Not Merely Create

New Remedies And Jury Trial Rights

For Pre-Existing Wrongs Under Title

VII... yactereaincnenineannsiainnattintaniisitamiiiianiaiaaa ii

2. Section 101 Is Not A Mere “Restorative”

SUIT ciseahsieetinbencintinbiteetnatadeastetienertie

B. Even Remedial, Procedural And Restorative

Laws Are Subject To The Traditional Pre-

Page

TABLE OF AUTHORITIES

CASES Page

Alexander v. Gardner-Denver Co., 415 U.S. 36

EES oe AEE Ler eee a 28

Andrus v. Charlestone Stone Prods. Co., 436 U.S.

604 (1978) seissentinbbhegueiiineeieainiiae tina aa ; 46

Baynes v. AT&T Technologies, Ine., 976 F.2d 1370

a Bn 28

Bell v. New Jersey, 461 U.S. 773 CS 46

Bennett v. New Jersey, 470 U.S. 632 (1985) 6, 13, 27,

36, 37

Bonet v. Texas, 308 U.S. 463 ee 46

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

UI arriiecieiintietinesterieiiinmeistamatitat tec a) 8,13

(BNA) 579 (2d Cir. 1998) Me 47

Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) =e 36

Cannon v. University of Chicago, 441 U.S. 677

AR ie ha eae 15

City of Richmond v. J.A. Croson Co., 488 U.S. 469

EL nae saliaielesaicdantibins nN AE ete oe 10

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

(4th Cir. 1980) Se 15

Cort v. Ash, 422 U.S. 66 (1975) _......... va 46

County of Oregon v. Gunther, 452 US. 161

EN ee ce EE ee ee 19

Cox v. Hart, 260 U.S. 427 (1922) 46

Dash v. Van Kleeck, 5 Am. Dec. 291 (1811) 9, 43

Davis v. Michigan Dep't of Treasury, 489 U.S. 803

reek sciieieeiiaed siiieeasies ieeienatiisundbinieats 7

DeBartolo Corp. v. Florida Gulf Coast Bldg. &

Constr. Trades Council, 485 U.S. 568 (1988) 16

DeVargas v. Mason & Hanger-Silas Mason Co.,

911 F.2d 1377 (10th Cir. 1990), cert. denied,

498 U.S. 1074 (1991) Ne a 42, 43, 47

Duplex Printing Press Co. v. Deering, 254 U-S.

I IIIT cterienincninciniciensincsttssniictieteri et Min 46

TABLE OF AUTHORITIES—Continued

Page

EEOC v. ARAMCO, 1118. Ct. 1227 (1991) : 20

Estate of Reynolds v. Martin, 985 F.2d 470 (9th

| ARR a lay ae ae 24

Ex Parte Collette, 337 U.S. 55 (1949) : 46

Fray v. Omaha World Herald Co., 960 F.2d 1370

_\. aR 47

Freeborn v. Smith, 69 U.S. (2 Wall.) 160 (1865). 46

Frisbie v. Whitney, 76 U.S. (9 Wall.) 187 (1870). 46

458 U.S. 375 (1982)... ts ORE Bie 30

General Electric v. Gilbert, 429 U.S. 125 (1976) 15

1190) . ata LE 14, 28, 31

Goodman v. Lukens Steel Co., 482 U.S. 656

(1987) ' 46

Great American Fed. Sav. & Loan Ass’n v.

Novotny, 442 U.S. 366 ee 28

Greene v. United States, 376 U.S. 149 (1964) 11, 45

Griggs v. Duke Power Co., 401 US. 424 (1971) 32

Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473

ee | 46

Hallowell v. Commons, 239 U.S. 506 (1916) 46

Harper v. Virginia Dep't of Taration, No. 91-974

(U.S. June 18, 1993). 31, 42

Hicks v. Brown Group, Inc., 982 F.2d 295 (8th

Cir. 1992) (en banc), petition for cert. filed,

61 U.S.L.W. 3669 (U.S. Mar. 23, 1998) (No.

92-1638) .................... sanisinimeeia. am 27

Hodel v. Irving, 481 U.S. 704 (1987) 10

Hodges v. Snyder, 261 U.S. 600 (1923) 16

Hutto v. Finney, 437 U.S. 678 (1978) 46

James B. Beam Distilling Co. v. Georgia, 111 S. Ct.

2439 (1991) ' CLES AO 42

James v. United States, 366 U.S. 213 (1961) 10, 39

Jensen v. Gulf Oil Refining & Mktg. Co.. 623 F.2d

406 (5th Cir. 1980) aaa ai : 15

vii

TABLE OF AUTHORITIES—Continued

Page

Jett v. Dallas Independent Sch. Dist., 491 U.S. 701

I ihe saieiatiaibdibidieienidtinecsstii 38

Johnson v. Railway Express Agency, Inc., 421 U.S.

EE ee eA 28

Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363 (5th

Cir. 1992), petition for cert. filed, 61 U.S.L.W.

3356 (U.S. Sept. 29, 1992) (No. 92-737) ............ 28, 42

Kaiser Alum. & Chem. Corp. v. Bonjorno, 494

i eee ...... passim

cert. granted Feb. 22,1993) sss caeiahineiaidias 16, 29

Leland v. Federal Ins. Adm’r, 934 F.2d 524 (4th

Cir.), cert. denied, 112 S. Ct. 417 (1991) 15

Lorillard v. Pons, 434 U.S. 575 (1978) 16

(7th Cir. 1992), petition for cert. filed, 61

U.S.L.W. 3446 (U.S. Dec. 3. 1992) (No. 92-

977) .... ae | isiipieciilia aia ---ene-. passim

Mackey v. Lanier Collection A gency & Serv., Inc.,

486 U.S. 825 (1988) | 19, 42

Massachusetts v. Morash, 490 U.S. 107 (1989) 17.19

Mertens v. Hewitt Assocs., 61 U.S.L.W. 4510

(U.S. June 1,1993) is 25

Miller v. Florida, 482 U.S. 423 (1987) 10, 36, 44

Miller v. United States, 294 U.S. 435 (1935) ...... 11

Minority Police Officers v. City of South Bend,

617 F. Supp. 1330 (D. Ind. 1985), aff'd, 801

F.2d 964 (7th Cir. 1986). sis 30

Morton v. Mancari, 417 U.S. 535 (1974) 28

Mozee v. American Commercial Marine Serv. Co.,

963 F.2d 929 (7th Cir.), cert. denied. 113 S. Ct.

207 (1992) 12, 14

National R.R. Passenger Corp. v. National Ass’n

of R.R. Passengers, 414 U.S. 453 (1974) 29

Patterson v. McLean Credit Union, 491 U.S. 164

(1989) ‘teiietaiadacbitin ante rn 3, 29

viii

TABLE OF AUTHORITIES—Continued

TVA v. Hill, 4837 U.S. 158 ae ee

Union Pac. R.R. v. Laramie Stock Yards, 231 U.S.

190 (1913) ............

431 U.S. 1 (1977)... sist

United States v. Burke, 112 S. Ct. 1867 (1992)

Page

8, 36

. BT, 44

36, 44

TABLE OF AUTHORITIES—Continued

United States v. Heinszen & Co., 206 U.S. 370

ITI idicisoniclynsebienieantesindcneiiaehiniaiaiet it

United States v. Magnolia Petroleum Co., 276 U.S.

al, ERISA IETS ap eae een 11,

United States v. Security Industrial Bank, 459

Weaver v. Graham, 450 U.S. 24 (1981) PN 9,

CONSTITUTIONAL PROVISIONS AND

STATUTES

ments of 1978, Pub. L. No. 95-256, 92 Stat. 189

Americans With Disabilities Act of 1990, 42

U.S.C. § 12101 et seq. :

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

105 Stat. 1071 " Sneiidiiaadated vine ai

Page

36, 45

36, 39

3, 6

TABLE OF AUTHORITIES—Continued

Page

Sec. 2, 105 Stat. 1071... aniagmaituncadaias 24, 32

Sec. 3,105 Stat.1071... Haan ......25, 32, 34

Sec. 101,105 Stat.1071.000020@0@€28282 passim

Sec. 102,105 Stat.1072... 5, 18, 29

Sec. 105, 105 Stat. 1074 0. 34

Sec. 109(c), 105 Stat.1077.... 5, 18,19

Sec. 110, 105 Stat. 1078... 17

Sec. 402(a),105Stat.1099 passim

Sec. 402(b),105Stat.1099 5, 18,19

Civil Rights Act of 1964, Title VII, 42 U.S.C.

RS | 6a ee a eee passim

eR FS | eee 10

Mont. Const., art. XIII, $1,cl.3 .......... Re nae 10

Wome, Comtat.. oh, 1, ort, GB... ccecceccecce-cce----.-........ 10

Ohio Const., art. 11,§ 28 0 10

Pregnancy Discrimination Act, Pub. L. No. 95-

555, 92 Stat. 2076 (1978) 0 15

Pub. L. No. 101-336, § 108, 104 Stat. 337 (1990). 18

US. Comst., art. I, § 8, 1. $ ............................... 10

LEGISLATIVE HISTORY

Civil Rights Act of 1990: Hearing on S2104

Before the Senate Comm. on Labor and Human

Resources, 101st Cong., Ist Sess. (1990) 33

H.R. 1, 102d Cong., 1st Sess. (June 11, 1991) ..... 20, 34

H.R. 1, 102d Cong., 1st Sess. (Jan. 83,1991) 20

H.R. Conf. Rep. No. 856, 191st Cong., 2d Sess.

IAS Eee 2 ee ea ee 19

S. 1207, 102d Cong., Ist Sess. (1991)... 20, 23

S. 1208, 102d Cong., Ist Sess. (1991) 20

S. 1209, 102d Cong., Ist Sess. (1991). sis” 20

S. 1407, 102d Cong., Ist Sess. (1991) ss 21

S. 1408, 102d Cong., Ist Sess. (1991) Sapa pean 21

S. 1409, 102d Cong., Ist Sess. (1991). sits 21

S. 1745, 102d Cong., Ist Sess. (Sept. 24,1991) 21

S. 2104, 101st Cong., 1st Sess. (1990), reprinted

in 136 Cong. Rec. H6827-30 (daily ed. Aug. 3,

AER SERVE DS, nek SA oid SOS ON Lae ee 33, 34

TABLE OF AUTHORITIES—Continued

Page

135 Cong. Rec. $10221 (daily ed. Aug. 4, 1989)... 33

136 Cong. Rec. $1523 (daily ed. Feb. 22,1990) 33

136 Cong. Rec. S16418-19 (daily ed. Oct. 22, 1990).. 19, 34

137 Cong. Rec. E14 (daily ed. Jan.3,1991) 19

137 Cong. Rec. H3925 (daily ed. June5,1991) 20

137 Cong. Rec. H3926 (daily ed. June 5, I 20

137 Cong. Rec. H3934 (daily ed. June 5, 1991) ......... 20

137 Cong. Rec. H9526 (daily ed. Nov.7,1991) 34

137 Cong. Rec. H9543 (daily ed. Nov. 7, | 34

137 Cong. Rec. $7020 (daily ed. June 4, | ne 20

137 Cong. Rec. S7021 (daily ed. June 4,1991) 20

137 Cong. Rec. S7023 (daily ed. June 4,1991) 20

137 Cong. Rec. S7071-78 (daily ed. June 4,(1991).. 20

137 Cong. Rec. S8983-89 (daily ed. June 27, 1991).. 21

157 Cong. Rec. S8984 (daily ed. June 27, 1991). 21

137 Cong. Rec. S8586-87 (daily ed. June 27, 1991) .. 21

137 Cong. Rec. S13581-82 (daily ed. Sept. 24,

PII TEE Ec ETS SnD PN DI 21

137 Cong. Rec. S15233 (daily ed. Oct. 25, 1991)........ 21, 24

137 Cong. Rec. S15234 (daily ed. Oct. 25, 1991) ....... 34

137 Cong. Rec. S15237 (daily ed. Oct. 25, 1991) ....... 21,24

137 Cong. Rec. $15275 (daily ed. Oct. 25,1991) _ 22

137 Cong. Rec. $15276 (daily ed. Oct. 25,1991). 22

137 Cong. Rec. $15472 (daily ed. Oct. 30,1991) 34

137 Cong. Rec. S15483 (daily ed. Oct. 30,1991) 22

137 Cong. Rec. S15485 (daily ed. Oct. 30, 1991) 22

137 Cong. Rec. 815953 (daily ed. Nov. 5, 1991) 23

137 Cong. Rec. $15963 (daily ed. Nov. 5, 1991) ....... 23

MISCELLANEOUS

1 William Blackstone, Commentaries ., aie 9

William N. Eskridge, Jr., Overriding Supreme

Court Statutory Interpretation Decisions, 101

wae ees oe Ce =... 26

2A N. Singer, Sutherland Statutory Construction

§ 47.37 (4th ed. rev. 1984) EDP As 17

xii

TABLE OF AUTHORITIES—Continued

Page

Elmer E. Smead, The Rule Against Retroactive

Legislation: A Basic Principle of Jurispru-

dence, 20 Minn. L. Rev. 775 (19386) .... sis 9

Joseph Story, Commentaries on the Constitution,

§ 1398 (3d ed. 1858) LIP aes Og ny ET 9,12

The Federalist No. 44 (James Madison) _.... 9

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-938

MAuRICE RIVERS and RosBert C. DAVISON,

“ Petitioners,

Roapway Express, INC.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF FOR THE RESPONDENT

STATUTES INVOLVED

The statute involved in this case is the Civil Rights

Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071. It

is reprinted in Appendix B of the brief of petitioner in

No. 92-757, and is excerpted in the brief of petitioners.

STATEMENT OF THE CASE

1. Petitioners Maurice Rivers and Robert C. Davison

are black garage mechanics who previously were em-

ployed by respondent Roadway Express, Inc. (Pet. App.

2a). In August 1986, garage Supervisors of respondent

scheduled disciplinary hearings for petitioners based on

their accumulated work records, including problems of

absenteeism, poor workmanship, and insubordination (id.:

Guy Dep. at 158-60 & Exs. 47, 48 (Aug. 12, 1987)).

After petitioners were notified of the hearings but failed to

attend, they were suspended for two days (Opp. App.

A4-A5). Petitioners filed grievances, claiming that they

had not received proper notice of the hearings, and were

awarded back pay (id. at A5-A6).

A garage manager of respondent then scheduled new

disciplinary hearings during working hours for petition-

ers and some white mechanics (Opp. App. A6-A8).

Petitioners and one white mechanic refused to attend

(id. at A7-A10). As a result, on September 26, 1986.

petitioners and the white mechanic were discharged “for

refusing several direct orders to attend the hearings and

for [their] accumulated work record[s]”” (Pet. App. 3a).

2. On December 22, 1986, petitioners, along with

another discharged mechanic, James T. Harvis, Jr. (col-

lectively, “plaintiffs”), filed a complaint in district court

against respondent and their union local (R.1 ). The com-

plaint alleged that respondent had violated 42 U.S.C.

Section 1981 and the governing collective bargaining

agreement by discharging plaintiffs because of their race

and without just cause (R.1 at 1-5). The complaint fur-

ther alleged that the union had violated its duty of fair

representation in processing plaintiffs’ grievances (id. at

1. 4-5). On October 18, 1988. plaintiffs amended their

complaint. adding discrimination claims under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. $ 2000e et seg.

(J.A. 15a-20a; see Opp. App. A3).

On November 30, 1988, the district court granted sum-

mary judgment against the plaintiffs on their breach of

collective bargaining agreement and duty of fair repre-

sentation claims, finding that, “[dlespite [the] extensive

record” in the case, “plaintiffs have failed to present any

evidence of arbitrariness, discrimination or bad faith in

the processing of their grievances” (J.A. 29a). Subse-

quently, the court separately submitted plaintiff Harvis’

Section 1981 discharge claim to a jury. which, on June

13, 1989, returned a verdict in favor of respondent and

against Harvis (Pet. App. 20a).

On July 10, 1989, the district court issued an Order

directing petitioners to show cause why this Court’s deci-

sion in Patterson vy. McLean Credit Union, 491 U.S. 164

(1989), did not require dismissal of their Section 1981

claims (Pet. App. 19a). On January 19, 1990, the court

dismissed those claims (id. at 24a). The court then

held a bench trial on petitioners’ Title VII retaliation and

discharge claims and, on October 18, 1990, entered judg-

ment for respondent, finding that “black emplovees were

not treated differently than white employees with respect

to the scheduling of disciplinary hearings,” and that peti-

tioners were discharged “for refusing direct orders and

for [their] accumulated work record|s]” and “not... be-

cause of [their] race” (Opp. App. A6, A9, Al0, A13).

3. On November 21, 1991, while petitioners’ appeals

were pending, Congress passed the Civil Rights Act of

1991 (“the Act” or “CRA”), Pub. L. No. 102-166, 105

Stat. 1071 (1991). Among other provisions, the CRA

amended Title VII, Section 1981. the Age Discrimination

in Employment Act of 1967 (“ADEA”). 29 U.S.C. § 621

et seq., and the Americans With Disabilities Act of 1990

(“ADA”), 42 U.S.C. § 12101 et seq. In particular, Sec-

tion 101(b) of the Act expanded Section 198] to cover

“the making, performance, modification. and termination

of contracts, and the enjoyment of all benefits, privileges,

terms, and conditions of the contractual relationship.”

105 Stat. 1072.

4. Eight months later. on August 24, 1992. the court

of appeals affirmed in part. reversed in part, and re-

manded for further proceedings on petitioners’ retaliation

claims (Pet. App. 2a). The court first held that, under

Patterson, the district court had properly dismissed _peti-

tioners’ race discrimination in discharge claims (id. at 2a.

4a-6a). The court next held that petitioners’ retaliation

claims survived Patterson and that relitigation of these

retaliation claims is rot precluded by the district court’s

prior Title VII judgment (id. at 2a, 6a-10a). Finally,

the court rejected petitioners’ argument that the Act

should be applied retroactively to their Section 198]

claims, reasoning that “retroactive application of the 199]

Act would affect ‘substantive rights and liabilities of the

parties’” (Pet. App. 13a ( quoting Vogel v. City of Cin-

cinnati, 959 F.2d 594, 598 (6th Cir.), cert. denied, 113

S. Ct. 86 (1992)). Accordingly, the court remanded for

further proceedings only on petitioners’ “§ 1981 claims

based on retaliation for attempting to enforce contract

rights” (Pet. App. 14a).'

SUMMARY OF ARGUMENT

I. The principle that legislation looks forwards. not back-

wards, and its corollary that retroactivity is not favored

in the law, are deeply rooted in this nation’s most basic

concepts of justice and limited government through checks

and balances, It is a basic concept of justice that citizens

Should have fair warning of the law and its sanctions so

that they can avoid these sanctions if they wish. It is also

a basic concept of limited government through checks and

balances that the power retroactively to identify wrong-

doers and impose sanctions is a power more properly

exercised in the enforcement of the law than in the course

of framing the law. These concepts of justice and limited

government through checks and balances are reflected in

the rule of construction that this Court has applied for

nearly two hundred years in interpreting nonpenal civil

Statutes—namely, that nonpenal civil statutes will be pre

sumed not to apply to conduct or trials that occurred be-

fore the dates of their enactment unless their terms clearly

and unequivocally command such a retroactive effect.

1 Petitioners and the Solicitor General suggest (Pet. Br. 9, 14,

29; U.S. Br. 26 n.15) that the remand of petitioners’ retaliation

claims reopens the district court’s Title VII judgment on their

discharge claims as well. But the court of appeals affirmed the

district court’s disposition of the discriminatory discharge claims,

and did not purport to remand on those claims; it remanded only

on the retaliation claims (Pet. App. 2a, 4a-7a, 14a).

Il. The Civil Rights Act of 1991 does not clearly and

unequivocally command such a retroactive effect. The

language of Section 402(a) of the Act, which states that.

“le]xcept as otherwise specifically provided, the Act and

the amendments made by this Act shall take effect upon

enactment.” 105 Stat. 1099, is facially ambiguous. But

Congress had previously passed numerous statutes with

the same or similar language, which courts had con-

strued to have only a prospective effect. Congress is pre-

sumed to have been aware of this prior judicial interpre-

tation and, by including such language in Section 402(a).

to have adopted that interpretation for purposes of this

Act.

Construing Section 402(a) to make the Act generally

prospective would not, as petitioners and the Solicitor

General contend, improperly deprive other effective date

provisions in the Act of independent and particular effect.

Section 402(a)'s “[e]xcept as otherwise specifically pro-

vided” language derives meaning from Section 102 of

the Act, by ensuring that the latter section’s provisions for

damages and jury trials in cases brought under the Amer-

icans with Disabilities Act (“ADA”) of 1990 would not

apply until the ADA’s employment provisions themselves

became effective—seven months after the CRA’s effective

date. Likewise, Section 402(a)’s independent and par-

ticular effect is to avoid for the Act in general the unam-

biguous resolution of the prospectivity versus retrospec-

tivity question that Sections 109(c) and 402(b) of the

Act unambiguously resolve for the particular statutory

sections to which they respectively apply.

Il. The alternative argument of petitioners and the

Solicitor General that Section 101 should be judicially

presumed to apply retroactively is also unsound. As peti-

tioners and the Solicitor General concede. the broadly-

Stated presumption of retroactivity set forth in. this

Court’s decision in Bradley v. School Board, 416 US.

696, 711 (1974), does not upply where a law “affect{s]

substantive rights and liabilities,” Bennett v. New Jersey,

aan (anna ee

470 U.S. 632, 639 (1985). Section 101 is plainly such

a law.

A. Contrary to the argument of petitioners and the

Solicitor General, Section 101 neither merely creates new

remedies and procedures for pre-existing wrongs under

Title VII nor merely “restores” Section 1981 to some

supposed prior state. Section 101 is a distinct positive

law that outlaws much conduct that Title VII does not

outlaw; and Section 101 does not lose its substantive con-

tent merely because Title VII outlaws some of the same

conduct. Likewise, Section 101 is not a law that merely

“restores” Section 1981 to a state allegedly intended by

the Congress that first enacted it. While factions in Con-

gress favored enacting such a restorative law, the majority

did not enact a law that purports to do so—as the statute’s

language and legislative history make clear.

B. Even if Section 101 could properly be character-

ized as a remedial, procedural or restorative law, how-

ever, it still should be governed by the traditional pre-

sumption against retroactive application of statutes. The

Court has held that the traditional presumption applies

to laws by which human action is regulated. The new

Substantive rights and correlative remedies that Section

101 creates (and to which a jury trial right implicitly at-

taches) plainly may constitute such laws.

Application of the traditional presumption to Section

101 furthers the principles of justice and limited govern-

ment that underlie the presumption of prospectivity.

Under these principles, citizens should have notice of the

sanctions that may be applied to their conduct, and a

fair opportunity to avoid those sanctions. Likewise, citi-

zens should not be judged or punished by later created

legislative standards—even those that purport to impose

standards that previously existed in the law. In a system

of limited government, Congress is presumed ill-suited to

create such retrospective damages rules and behavioral

standards. While Congress has the power to act retro-

spectively, the principles of justice and limited govern-

;

ment through checks and balances that underlie the pre-

sumption of prospectivity require that Congress make

clear its intent to do so.

There is no sound jurisprudential or doctrinal reason

for ignoring these principles in the context of Section

101. Contrary to petitioners’ contention, this Court's

case law does not justify exempting remedial, procedural,

Or restorative statutes from the traditional presumption

of prospectivity. Moreover, adoption of a different pre-

sumption for laws like Section 101 would not only

undermine the basic principles of justice and limited gov-

ernment through checks and balances that underlie the

Presumption of prospectivity, but it would also needlessly

increase the workload of the courts—which would have to

start pigeonholing laws as either “substantive,” “remedial,”

“procedural,” or “restorative” in order to determine which

presumption is applicable—and unnecessarily complicate

and confuse the process of interpreting statutes. To the

extent that Bradley may be read to support such a pre-

sumption of retroactivity, the Court should make clear

that it no longer states the governing law.

ARGUMENT

The question here is whether Section 101] of the Civil

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

1071-72 (1991), is to be given retroactive application—

i.e., whether the rights that Section 101 establishes (and

the remedies and jury trial right that implicitly attach

to those rights) are to be applied to conduct that occurred,

and that was adjudicated to be non-discriminatory, prior

to the passage of the Act. The answer to that statutory

interpretation question, as with all Statutory interpreta-

tion questions, must be found in the language and struc-

ture of the Act, read against the relevant background leg-

islative materials. See, e.g., Davis v. Michigan Dep't of

Treasury, 489 U.S. 803, 80% (1989),

In this instance, however, that exercise does not take

place in a vacuum. This Court has announced that “lilt

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 backwards; and are never

to be construed retrospectively unless the language of the

Act shall render such construction indispensable.” Rey-

nolds v. M’Arthur, 27 U.S. (2 Pet.) 417, 434 (1829)

(Marshall, J.). This principle governs this case.

To be sure, petitioners do not accept this principle

as the law. Based on Bradley v. School Board, 416 US.

696 (1974), they argue instead that, where remedial.

procedura! or restorative laws are concerned, Congress

is presumed to have intended that its statutes will be

applied retroactively unless manifest injustice would re-

sult, or unless there is statutory direction to the contrary.

That being so, we proceed as follows: First, we explore

the reasons for and background to the traditional pre-

sumption of prospectivity. Then, we address the Statutory

materials and demonstrate that, under the traditional pre-

sumption, Section 101 of the Act may not be applied

retroactively. Finally, we demonstrate that, contrary to

petitioners’ argument, Section 101 is not a mere remedial.

procedural or restorative law and that, even if it were. the

traditional presumption would apply and would preclude

retroactive application of Section 101.

I. A STATUTE SHOULD NOT BE APPLIED TO CON.

DUCT OR TRIALS OCCURRING BEFORE THE

DATE OF ITS ENACTMENT UNLESS ITS TERMS

CLEARLY AND UNEQUIVOCALLY COMMAND A

RETROACTIVE EFFECT

The principle that legislation “look[s] forwards, not back-

wards,” Reynolds v. M'Arthur, 27 US. at 434. and its

corollary that “[rJetroactivity is not favored in the law.”

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208

(1988), are deeply rooted in the most basic concepts

of justice and in the system of limited government through

checks and balances that is the particular genius of our

constitutional plan. As Justice Story noted, “retrospective

laws are . . . generally unjust: and . . . neither accord

with sound legislation nor with the fundamental principles

of the social compact.” Joseph Story, Commentaries on

the Constitution, § 1398 (3@ ed. 1858),

The justice component of these principles has an an-

cient lineage. Since the time of the Greeks and Romans.

it has been recognized that, “as a matter of justice[,] laws

should not be enforced before the subjects have an oppor-

tunity to become acquainted with them.” Elmer E. Smead,

The Rule Against Retroactive Legislation: A Basic Prin-

ciple of Jurisprudence, 20 Minn. L. Rev. 775, 777 (1936)

(citing 1 William Blackstone, Commentaries *46 (1765)).

See also Kaiser Alum. & Chem. C orp. v. Bonjorno, 494

U.S. 837, 855 (1990) (Scalia, J., concurring). This

Court has thus stated that time-honored principles of law

require that statutes “give fair notice of their effect and

permit individuals to rely on their meaning until explicitly

changed.” Weaver v. Graham, 450 US. 24, 28 (1981).

As Justice Story suggested, however, in American law,

the principle that conduct should be judged under the law

that existed when the conduct took place is not based solely

on concepts of justice. It is also based on a principle of

limited government through checks and balances—-spe-

cifically, the principle that the retrospective identification

of wrongdoers and imposition of punishment is a power

more properly exercised in the enforcement of the law

than in the course of framing the law. See Dash y. Var

Kleeck, 5 Am. Dec. 291, 310 (1811) (Kent. J.) (dis-

favor of retroactive laws is based on the notion that “the

power of the law-giver is limited and defined”): Smead.

supra, at 797 (American law “transpos[ed] [the] prin-

ciple [against retroactive laws} . . . into an effective

transcendental limitation on legislative power”): see also

The Federalist No. 44, at 128-29 (James Madison). As

Justice Harlan explained in the context of the criminal

law:

Aside from problems of warning and specific intent,

the policy of the prohibition against ex post facto

legislation would seem to rest on the apprehension

that the legislature, in imposing penalties on past

conduct, even though the conduct could properly

have been made criminal and even though the de-

lendant who engaged in that conduct in the past

believed he was doing wrong (as for instance when

the penalty is increased retroactively on an existing

crime), may be acting with a purpose not to prevent

dangerous conduct generally but to impose by legis-

lation a penalty against specific persons or classes

of persons.

James v. United States, 366 U.S. 213, 247 n.3 (1961)

(Harlan, J., concurring in part, dissenting in part). Ac-

cord, City of Richmond vy. J.A. Croson Co., 488 U.S.

469, 513-14 (1989) (Stevens, J.. concurring) (noting

applicability of these concerns in the civil law context).

This healthy mistrust of retroactive laws—criminal and

civil—is reflected in the constitutions of both the United

States and the several states. To ensure that “legislatures

[are] restrained from enacting arbitrary or vindictive leg-

islation,” Miller v. Florida, 482 U.S. 423. 429 (1987),

and that “legislative enactments give ‘fair warning of

their effect,’” id. at 430 (citation omitted). the Consti-

tution’s Ex Post Facto and Bill of Attainder clauses pro-

scribe all retroactive punitive legislation. See U.S. Const.,

art. I, § 9, cl. 3. The constitutions of several states even

more broadly outlaw all legislation, including civil legis-

lation, which has retroactive effects. See, e.g., N. H.

Const., pt. 1, art. 23; Colo. Const., art. Il, $ 11; Mont.

Const., art. XIII, $1, cl. 3: Ohio Const., art. II, § 28.

And the federal constitution, while not proscribing all

retroactive civil legislation, generally bars (or demands

compensation for) civil laws that destroy or impair vested

or contractual rights, see, e.g., Hodel v. Irving, 481 US.

704 (1987); United States Trust Co. of N.Y. v. New

Jersey, 431 U.S. 1 (1977). and requires that “[{t}he retro-

spective aspects of [all] legislation, as well as the pro-

spective aspects, . . . meet the test of due process,” Usery

v. Turner Elkhorn Mining Co., 428 U.S. 1, 17 (1976),

Indeed, this Court has made it clear that “the justifica-

tions for the latter may not suffice for the former,” id.,

and has stated that it would “hesitate to approve the

retrospective imposition of liability on any theory of

deterrence . . . or blameworthiness.” /d. at 17-18.

Not surprisingly, the rules of construction that this

Court has adopted for interpreting nonpenal civil statutes

reflect the same skepticism about retroactive laws. Ac-

cord, Bonjorno, 494 U.S. at 855-56 (Scalia, J., concur-

ring); Luddington v. Indiana Bell Tel. Co., 966 F.2d

225, 227-29 (7th Cir. 1992) (Posner, J.), petition for

cert. filed, 61 U.S.L.W. 3446 (U.S. Dec. 3, 1992) (No.

92-977). Thus, the Court has announced that “ ‘the first

rule of [statutory] construction is that legislation must be

considered as addressed to the future, not to the past

- + «+ ” Greene v. United States, 376 US. 149, 160

(1964) (citation omitted), Applying this “first rule” of

construction, the Court has long held that:

Words in a statute [do not] have a retrospective

operation, unless they are so clear, strong, and im-

perative, that no other meaning can be annexed to

them, or unless the intention of the legislature can-

not be otherwise satisfied.

United States v. Heth, 7 US. (3 Cranch) 399, 413

(1806).?

* See also, e.g., Bruner v. United States, 343 U.S. 112, 117 n.8

(1952) (“[A] statute is not to be given retroactive effect unless

such construction is required by explicit language or by necessary

implication”); Miller v. United States, 294 U.S. 435, 489 (1985)

(“The law is well settled that generally a statute cannot be con-

strued to operate retrospectively unless the legislative intention to

that effect unequivocally appears”); United States v. Magnolia

Petroleum Co., 276 US. 160, 162-63 (1928) (“Statutes are not

to be given retroactive effect or construed to change the status of

claims fixed in accordance with earlier provisions unless the legis-

lative purpose to do so plainly appears.”); Schwab v. Doyle, 258

U.S. 529, 587 (1922) (“It is the proclamation of both [principle

As Justice Scalia has explained, this presumption of

non-retroactivity “gives effect to enduring notions of what

is fair, and thus accords with what legislators almost al-

ways intend.” Bonjorno, 494 U.S. at 856 (Scalia, J.,

concurring). And, by requiring that Congress be explicit

about its intentions, the principle impedes retrospective

legislative sanction of specific persons or classes of per-

sons and thus holds the legislature’s “awesome power. . .

a little in check.” Luddington v. Indiana Bell Tel. Co.,

966 F.2d at 228 (Posner, J.). The presumption of pro-

spectivity thereby promotes the same principles of justice

and limited government through checks and balances that

underlie the more express and unyielding constitutional

protections against retroactive laws. Accord, Joseph Story,

Commentaries on the Constitution, § 1398; Luddington,

966 F.2d at 227-28."

Of course, “[iJt will remain difficult, in many cases,

to decide whether the presumption has been overcome

by text, and indeed to decide whether a particular appli-

cation is retroactive.” Bonjorno, 494 U.S. at 857 (Scalia,

J., concurring) (emphasis in original). Whether a par-

ticular application is retroactive will “depen|[d] upon what

one considers the determinative event by which retro-

activity or prospectivity is to be calculated.” Jd. at 857

n.3. And many new laws—especially new laws concern-

‘ug trial procedures such as jury trials and evidentiary

rules—will typically be triggered only by events that

occur after the dates of their enactment. Accord, Mozee

v. American Commercial Marine Serv. Co., 963 F.2d

and authority| that a statute should not be given a retrospective

operation unless its words make that imperative. .. .”).

3 As Justice Scalia noted in his concurrence in Kaiser Alum. &

Chem. Corp. v. Bonjorno, 494 U.S. 837, 841-42 n.1 (1990), the

presumption of non-retroactivity is inapplicable in the context of

laws repealing punishments. See Yeaton v. United States, 9 U.S.

(5 Cranch) 281, 283 (1809); United States v. Tynen, 78 US.

(11 Wall.) 88, 95 (1871). Such laws repealing punishments impli-

cate none of the concerns that inform the longstanding jurispru-

dential disfavor of retroactive laws.

929, 939 & n.5 (7th Cir.), cert. denied, 113 S. Ct. 207

(1992) (except when applied to cases already adjudi-

cated, rules aimed at trial procedure generally do not

require retroactive application). But where a retroactive

application of a nonpenal civil statute is sought, the

presumption against retroactivity is “very strong,” United

States Fidelity and Guar. Co. v. United States, 209 U.S.

306, 314 (1908), and remains the governing principle

today.

Thus, in United States v. Security Industrial Bank, this

Court held that:

{!A] retrospective operation will not be given to a

Statute which interferes with antecedent rights .. .

unless such be “the unequivocal and inflexible im-

port of the terms, and the manifest intention of the

legislature.”

459 U.S. 70, 79 (1982) (citation omitted). Likewise, in

Bennett v. New Jersey, 470 U.S. 632, 641 (1985), the

Court reiterated that nonpenal laws will be construed to

apply only prospectively “absent a clear indication to the

contrary in the relevant statutes or legislative history.”

And, in Bowen v. Georgetown University Hospital, 488

U.S. at 208, the Court said that “congressional enact-

ments and administrative rules will not be construed to

have retroactive effect unless their language requires this

result.”

Il. THE CIVIL RIGHTS ACT OF 1991 DOES NOT

CLEARLY AND UNEQUIVOCALLY COMMAND

APPLICATION OF ITS TERMS TO CONDUCT OR

TRIALS OCCURRING BEFORE THE DATE OF

ITS ENACTMENT

In this case, petitioners recognize that they are seeking

to apply the Civil Rights Act of 1991 retroactively. Spe-

cifically, they state (Pet. Br. 9, 14) that they are seek-

ing to apply Section 101’s new substantive rights to

conduct that occurred prior to the Act’s enactment and

that. if the Court does no’ do so, the correlative dam-

ages remedies and jury trial rights that impliedly attach to

Section 1981 claims will not be available to them. In-

deed, although they attempt to evade the issue by sug-

gesting (Pet. Br. 9, 29) that the court below vacated a

discharge ruling that it in fact affirmed (see note 1,

supra), petitioners are in fact seeking to have Section

101’s new rights and correlative damages remedies and

jury trial rights applied retroactively to claims that have

already been adjudicated and have been held to be with-

out merit.

Under this Court’s traditional presumption, the Act

may be retroactively applied in this unjust and wasteful

fashion only if the statute clearly and unequivocally com-

mands such an application. Contrary to the argument of

petitioners and the Solicitor General, nothing in the Act’s

language, legislative history, or purposes provides this

clear and unequivocal command.

A. The Language Of Section 402(a) Does Not Clearly

And Unequivocally Command Retroactivity

The Act’s general effective date provision, Section

402(a), provides that, “[e|xcept as otherwise specifically

provided, this Act and the amendments made by this

Act shall take effect upon enactment.” As the court

below and a number of other courts of appeals have

concluded, this ambiguous language has a variety of con-

ceivable meanings: “it could mean that the Act applies

to pending cases or it could mean it should be applied

only to conduct occurring as of the date of enactment.”

Rivers v. Roadway Express, Inc., No. 91-3348 (6th Cir.

Aug, 24, 1992) (Pet. App. 12a). See also, e.g., Gersman

v. Group Health Ass'n, 975 F.2d 886, 888-89 (D.C. Cir.

1992), petition for cert. filed, 61 U.S.L.W. 3523 (US.

Jan. 13, 1993) (No. 92-1190); Rowe v. Sullivan, 967

F.2d 186, 192 (Sth Cir. 1992); Mozee, 963 F.2d at

932-33.

When Congress included this facially ambiguous lan-

guage in the Act, however, it was not writing on a

clean slate. This statutory language had been used many

times before and the courts had routinely interpreted this

language to apply only to conduct and trials occurring

after the date of the statutes’ enactments. See, e.g.,

Yakim v. Califano, 587 F.2d 149, 150 (3d Cir. 1978)

(Black Lung Benefits Reform Act of 1977); Leland vy.

Federal Ins. Adm’r, 934 F.2d 524, 529 (4th Cir.) (Na-

tional Flood Insurance Act), cert. denied, 112 S. Ct. 417

(1991).

indeed, Congress had included such language in the

1978 amendments to Title VII made by the Pregnancy

Discrimination Act (“PDA”), Pub. L. No. 95-555, 92

Stat. 2076 (1978). which overruled this Court’s decision

in General Electric v. Gilbert, 429 U.S. 125 (1976), and

in the 1978 amendments to the ADEA, Pub. L. No.

95-256, 92 Stat. 189 (1978), which overruled this Court’s

decision in United Airlines, Inc. v. McMann, 434 USS.

192 (1977). Again, courts construing the PDA and the

1978 ADEA amendments held that those statutes applied

only to conduct and trials occurring after the dates of

their enactments. See, e.g., Jensen v. Gulf Oil Refining &

Mktg. Co., 623 F.2d 406, 413 (Sth Cir. 1980) (constru-

ing 1978 ADEA amendments); Sikora v. American Can

Co., 622 F.2d 1116, 1123-24 (3d Cir. 1980) (same):

Condit v. United Air Lines, Inc., 631 F.2d 1136, 1140

(4th Cir. 1980) (construing PDA); Schwabenbauer v.

Board of Education, 667 F.2d 305, 310 n.7 (2d Cir.

1981) (same).

Congress is presumed to have been aware of the prior

judicial interpretation of this language and, by including

that language in Section 402(a), to have adopted that

interpretation for purposes of this Act. See Cannon vy.

University of Chicago, 441 U.S. 677, 696-99 (1979).

This presumption is especially appropriate where, as here,

the Act amended the very same statutes that had previ-

ously been amended—and amended with prospective effect

only—through the same “effective date” language used

here. See Lorillard v. Pons, 434 U.S. 575, 581 (1978).'

Bb. The Act’s Structure And Legislative History Do

Not Clearly And Unequivocally Command Retro-

active Application

In seeking to avoid the facial ambiguity of Section

402(a)’s language and the suggestion of prospectivity that

arises from prior judicial interpretation of statutes con-

taining similar language, petitioners and the Solicitor

General argue (Pet. Br. 12-18; U.S. Br. 6-7, 12-15)

that Section 402(a) must be construed as generally

rendering the Act retroactively applicable in order to

give independent and particular effect to other language

in the Act concerning effective dates. Indeed, joined by

the petitioners in Landgraf v. USI Film Products, No. 92-

757 (U.S. cert. granted Feb. 22, 1993) (Pet. Br. 92-

757, at 15-20), but not by the Solicitor General (U.S.

Br. 15-16), petitioners argue (Pet. Br. 18-19, 22-26)

that the statute’s legislative history shows that Congress

specifically intended that the Act generally be applied

retroactively. This argument simply misunderstands the

statute’s structure and legislative history.

1. It is important to recognize at the outset that canons

which ordinarily counsel in favor of searching for a con-

struction that gives all language in a statute independent

* Indeed, construing the language of Section 402(a) as gen-

erally making the Act retroactive would run afoul of the canon of

construction that courts should construe statutes, if at all pos-

sible, so as to avoid constitutional problems. See DeBartolo Corp.

v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S.

568, 575 (1988). Although petitioners apparently do not claim

that the Act applies to cases in which final judgments have been

entered, they do not point to anything in the language of Section

402(a) that purports to draw a distinction between final and non-

final judgments. This statutory omission would raise serious due

process concerns if the Act were construed generally to apply

retroactively. See, e.g., Hodges v. Snyder, 261 U.S. 600, 603

(1923).

and particular effect cannot be mechanically applied in

the coatext of this Act’s effective date provisions. Al-

though petitioners and the Solicitor General bring three

effective date provisions to the attention of the Court,

they studiously and tellingly ignore a fourth effective

date provision in the Act. Section 110 of the Act estab-

lishes an institute through which the EEOC is to pro-

vide technical assistance and training on employment

discrimination laws and regulations, and subsection (b}

of that provision states that: “The amendment made by

this section shall take effect on the date of the enactment

of this Act.” 105 Stat. 1078. This language is essen-

tially identical to, and unavoidably redundant of, the

pertinent language in Section 402(a). That being the

case. it is doubtful that the canons of construction upon

which petitioners and the Solicitor General rely can bear

the weight that is being placed upon them in this case. See

2A N. Singer, Sutherland Statutory Construction § 47.37,

at 258 (4th rev. ed. 1984) (independent and particular

meaning need not be given “where [it is] apparent

from the context of the act that the [provision] is sur-

plusage”):; see also Massachusetts v. Morash, 490 US.

107, 114 n.9 (1989) (“ ‘Many of the benefits incorpor-

ated in section 1002(1) by the cross-reference to section

186(c) are already found in section 1002(1). Thus it

is evident that Congress was not concerned with dupli-

cation, but only with assuring that all benefits covered by

section 186(c) were also covered by section 1002(1)°”

(citation omitted ) ).

2. In all events, Section 402(a) need not be con-

strued as making the Act generally retroactive in order

to give effect to all of the statute’s effective date language.

The contrary argument of petitioners and the Solicitor

General (Pet. Br. 15-16; U.S. Br. 7, 12-14) is in error.

Section 402(a)’s “except as otherwise specifically pro-

vided” qualifying clause plainly can find independent and

particular effect without construing Section 402(a) as

generally making the Act retroactive. Section 102 of the

Act, which creates limited rights to compensatory and

punitive damages (as well as to jury trials in cases seck-

ing such damages), applies in cases brought under the

ADA as well as in cases brought under Title VII. But

the employment law provisions of the ADA were not to

become effective until July 26, 1992—more than seven

months after the date of the Civil Rights Act’s enactment.

See Pub. L. No. 101-336, § 108, 104 Stat. 337 (1990)

(codified at 42 U.S.C. § 12111). Thus, construing the

Act to apply only prospectively does not in any way

render Section 402(a)’s qualifying clause superfluous:

that clause had the effect of ensuring that the Act’s dam-

ages and jury trial provisions did not become effective for

ADA cases until the employment law provisions of the

ADA themselves became effective.

It is likewise clear that Section 402(a) need not be

construed as generally making the Act retroactive in order

to give independent and particular effect to Sections

109(c) and 402(b) of the Act, the two provisions of the

Act which unambiguously state that specified sections of

the statute do not apply to pre-enactment conduct or

trials. Retroactivity is not the only statutory alternative

to such unambiguous prospectivity provisions. Ambiguity

that leaves the ultimate resolution of the prospectivity

versus retroactivity question to judicial default rules of

construction is an equally plausible statutory alternative.

So understood, the language of Section 402(a) has an

independent and particular effect—specifically, it avoids

an unambiguous resolution of the prospectivity versus

retroactivity question for the Act in general that Sections

109(c) and 402(b) expressly and unambiguously re.

solve for the particular statutory provisions to which they

apply.”

* As petitioners concede (Pet. Br. 19, 22-23), Congress was

aware, as it is presumed to be aware, that there was an “apparent

3. Contrary to petitioners’ argument, the Act’s legis-

lative history in fact confirms that Congress did not un-

derstand cither the qualifying clause to Section 402(a)

or Sections 109(c) and 402(b) to imply that Section

402(a) makes the Act generally apply retroactively.

Indeed. the legislative history confirms that the sponsors

of these provisions intended the Act to apply only pro-

spectively.

a. Before Congress enacted Section 402(a), various

factions in Congress attempted to enact civil rights legis-

lation that was expressly retroactive. The Civil Rights

Act of 1990 included explicit retroactive transition pro-

visions. See H.R. Conf. Rep. No. 856, 101st Cong., 2d

Sess. 9. $15 (1990). But President Bush vetoed the

1990 bill, citing, among other objectionable features, its

“unfair retroactivity rules.” Ser 136 Cong. Rec. S16418

19 (daily ed. Oct. 22, 1990).

At the beginning of the 102d Congress. Representative

Brooks introduced H.R. | as the Civil Rights Act of

1991. 137 Cong. Rec. El4 (daily ed. Jan. 3. 1991)

Like the vetoed Civil Rights Act of 1990, H.R. 1 con-

tained explicit retroactive transition rules. H.R. | stated,

tension” in this Court’s case law concerning whether ambiguous

statutory language is presumed prospective or retroactive. See

Boniorno, 494 U.S. at 837. This tension created some risk that

the courts might eventually hold the Act generally to apply retro-

actively, notwithstanding the presumptive inference that the Act

should be expected to be construed as prospective only-—just as

other statutes containing language like that in Section 402(a)

had been construed. By making Sections 109(c) and 402(b) un-

ambiguously prospective, Congress ensured that the statutory

provisions to which those sections specifically relate would in no

event be applied retroactively —no matter how the “apparent ten

sion” in the prospectivity case law is resolved and no matter how

the various default rules of construction are reconciled. This

Court has recognized that Congress sometimes enacts such statutory

“insurance” provisions. See, e.g.. Mackey v. Lanier Collection

Agency & Serv., 486 U.S. 825, 838-39 & n.13 (1988); County of

Oregon v. Gunther, 452 U.S. 161, 170 (1981): see also Massechu-

setts v. Morash, 490 U.S. 107, 114 n.9 (1989).

for example, that Section 12 (the predecessor to Section

101 of the Act) would “apply to all proceedings pending

on or commenced after June 15, 1989.” H.R. 1, 102d

Cong., Ist Sess., § 15(a)(6) (Jan. 3, 1991).

The House ultimately passed the Brooks-Fish substi-

tute, which differed from H.R. | in only one respect

that is significant here. In response to this Court’s 1991 de-

cision in EEOC v. ARAMCO, 111 S. Ct. 1227 (1991),

the substitute contained a provision “extend[ing] Title

VII coverage to United States citizens who are employed

abroad by American firms.” 137 Cong. Rec. H3934

(daily ed. June 5, 1991); see H.R. 1, 102d Cong. Ist

Sess. $ 119(c) (June 11, 1991). This provision, which

ultimately became Section 109 of the Act, expressly

stated that it did not “apply with respect to conduct oc-

curring before the date of enactment of the Act,” a

reservation that was clearly necessary at the time because

H.R. | was otherwise expressly retroactive. Compare id.

at $113 (see 137 Cong. Rec. H3925 (daily ed. June 5,

1991)) with id. at §$119(c) (see 137 Cong. Rec.

H3926).

b. Although the House passed the Brooks-Fish sub-

stitute, Senator Danforth and a coalition of eight other

Senate Republicans believed that “there [was] almost no

chance that [it] [would] be enacted into law.” 137 Cong.

Rec. $7020 (daily ed. June 4, 1991). They thus intro-

duced a package of three compromise bills—S. 1207.

S. 1208, and S. 1209, 102d Cong., Ist Sess. (1991).

137 Cong. Rec. $2071-78. Section 3 of S. 1207 contained

the language that is now Section 101 of the Act. See id. at

$7021. Section 13(a) contained the predecessor to Sec-

tion 402(a), stating that, “le]xcept as provided in sub-

section (b), this Act and the amendments made by this

Act shall take effect upon enactment.” /d. at $7023.

Section 13(b) stated that “[t]he amendments made by

Section 5.” which had to do with certain challenges to

consent orders, “shall apply to proceedings pending on or

commenced after June 12, 1989.” /d.

Although the Administration had fewer objections to

this package of bills than it did to the Brooks-Fish sub-

Stitute, it did object to several provisions, including Sec-

tion 13(b)’s retroactive application of Section 5. See

137 Cong. Rec. S8984 (daily ed. June 27, 1991). On

June 27, 1991, Senator Danforth and his Republican co-

sponsors attempted to meet the Administration’s various

concerns by introducing S. 1407, S. 1408 and S. 1409,

102d Cong., Ist Sess. (1991), as substitutes for their

initial bills. See 137 Cong. Rec. $8983-89 (daily ed.

June 27, 1991). In regard to the retroactivity issue,

Senator Danforth and his co-sponsors stated that their

substitute “made the section in question prospective.” /d.

at S8984. This was accomplished by providing that

“{t}his Act and the amendments made by this Act shall

take effect upon enactment.” 137 Cong. Rec. $8987

(daily ed. June 27, 1991).

As introduced, §. 1407 also contained the ARAMCO

provision that had been in the Brooks-Fish substitute ver-

sion of H.R. |. including the language stating that “[{t}he

amendments made by this section shall not apply with

respect to conduct occurring before the date of the enact-

ment of this Act.” S. 1407, § 11, 102d Cong., Ist Sess.

(1991). See also 137 Cong. Rec. S8986-87 (daily ed.

June 27, 1991). None of the sponsors so much as men-

tioned the inclusion of the ARAMCO provision.

c. §. 1407, S. 1408, and S. 1409 were then combined

and redesignated as S. 1745, which contained the lan-

guage of Sections 402(a) and 109(c) as eventually

enacted. See S. 1745, 102d Cong., Ist Sess. (Sept. 24,

1991): see also 137 Cong. Rec. S1I3581-82 (daily ed.

Sept. 24. 1991). About a month later, the redesignated

bill obtained the support of leading Republicans and

Democrats, including Senators Hatch and Kennedy, when

a compromise was reached on its treatment of the burden

of proof rules applicable in disparate impact cases. See

137 Cong. Rec. $15233, $15237 (daily ed. Oct. 25,

1991) (statements of Sen. Kennedy and Sen. Hatch). As

part of that compromise, the Republican and Democratic

leaders agreed to include the amendment that Is now Sec-

tion 402(b) of the Act, with its highly specific effective

date provision, to ensure that the Wards Cove Packing

Company could not possibly be affected by the Act's

passage. See 137 Cong. Rec. $15276 (daily ed. Oct. 25,

1991) (§22(b)). The compromise did not change in

any way the provisions that would become Sections

402(a) and 109(c) of the Act. See id. at $15275

($ 12(c)):; id. at $15276 (§ 22(a)).

On October 30, 1991, Senator Danforth introduced an

interpretive memorandum on behalf of himself and the

original co-sponsors of S$. 1745 which reiterated their

view that “[t]he bill provides that, unless otherwise speci-

fied, the provisions of this legislation shall take effect

upon enactment and shall not apply retroactively. 137

Cong. Rec. $15485 (daily ed. Oct. 30, 1991). Senator

Danforth explained that the addition of Section 402(b)

“is intended only to provide additional assurance that the

provisions of the bill will not be applied to certain cases

that fit the provisions of that subsection. It should not be

read in derogation of the sponsors’ intention not to pro-

vide for retroactive effect or application as expressed in

[Section 402(a)] of the bill.” /d. at $15483 (statement

of Sen. Danforth). However. even though these state-

ments were consistent with all prior explanations that

Senator Danforth had made about the effect of the lan-

guage in Sections 402(a) and (b), Senator Kennedy took

the floor and stated that “[ilt will be up to the courts to

determine the exient to which the bill will apply to cases

and claims that were pending on the date of enactment.

Id. at $15485 (statement of Sen. Kennedy).

The Senate thereafter proceeded inadvertently to omit

Section 402(b) from the draft of the bill that. on October

30, 1991, was passed. Accordingly, on November 5,

1991. Senator Dole insisted that the bill be returned to

the floor so that Section 402(b) could be reinserted into

it. See, e.g., 137 Cong. Rec. $15953 (daily ed. Nov 5,

1991) (statement of Sen. Dole). In reintroducing Section

402(b), Senator Dole reiterated that: “[a]bsolutely no

inference is intended or should be drawn from the lan-

guage of this amendment to section 402 that the provi-

sions of the Act or the amendments it makes may other-

wise apply retroactively to conduct occurring before the

date of enactment of this Act.” Jd. at $15953. Senator

Kennedy supported Senator Dole’s resolution, Stating

that, “[iJronically, the defeat of the . . . amendment would

make it more likely the courts would not apply the res-

torations to any pending cases, including the Wards Cove

case.” Jd. at $15963 (statement of Sen. Kennedy).

d. This legislative history is entirely inconsistent with

petitioners’ argument that the qualifying clause to Section

402(a) and the unambiguous prospectivity provisions of

Sections 109(c) and 402(b) demonstrate a clear and un-

equivocal intent of Congress that the Act generally would

apply retroactively to conduct and trials occurring before

the date of its enactment. On the contrary, as explained

above, the legislative history shows that Section 402(a)’s

“except as otherwise specifically provided” language orig-

inated in S. 1207, which, at that time, had an expressly

retroactive provision. It also shows that Section 109(c)’s

unambiguous prospectivity language originated in the

Brooks-Fish substitute for H.R. 1, which was otherwise

expressly retroactive at the time. And the unambiguous

prospectivity language of Section 402(b) was placed into

the Act expressly to protect the Wards Cove Packing

Company from any judicial shifts in the underlying pre-

sumption of prospectivity. Indeed, the legislative history

Shows that the original sponsors of these various provi-

sions understood them to establish prospectivity for the

Act, both generally and particularly.®

® Petitioners incorrectly suggest (Pet. Br. 23) that the views of

Senator Kennedy provide a basis for a contrary understanding.

Senator Kennedy had no hand in drafting Section 402(a) and was

4. In all events, the statute’s structure and legislative

history do not justify generally applying the Act retro-

actively. At most, they only create doubt about the

statute’s intended meaning. They plainly do not estab-

lish the clear and unequivocal command that is needed

for the Act to be applied to conduct or trials occurring

before the date of the statute’s enactment.

C. The Purposes Of The Act Do Not Establish A Clear

And Unequivocal Command For Retroactivity

Quoting from the sole appellate decision that has found

a clear and unequivocal command for general retroactive

application of the Act’s provisions, see Estate of Reynolds

v. Martin, 985 F.2d 470 (9th Cir. 1993), petitioners and

the Solicitor General join the Landgraf petitioners in ob-

jecting (Pet. Br. 33, 37; U.S. Br. 27-28; Pet. Br. No.

92-757. at 34-35) that it would undermine the purposes

of the Act to continue to apply judicial decisions that the

1991 Congress deemed incorrect and remedies and pro-

cedures that the 1991 Congress found inadequate, But

this objection starts from a false premise.

The Act does not purport to pursue the “purposes” that

this objection attributes to it. In the relevant “Findings”

provisions of the statute, the 1991 Congress stated only

that “additional remedies under Federal law are needed

to deter unlawful harassment and intentional discrimina-

tion in the workplace[.]” and that “'egislation is necessary

to provide additional protections against unlawful dis-

crimination in employment.” CRA §§ 2(1), 2(3); 105

not its sponsor. Rather, as shown above, he became a supporter

of the bill late in the legislative process, after and as a result of a

key compromise on the Act’s treatment of the burden of proof rules

applicable in disparate impact cases. See 137 Cong. Ree. 815235,

$15287 (daily ed. Oct. 25, 1991) (statements of Sen. Kennedy

and Sen. Hatch). Thus, Senator Kennedy's subsequently stated

views on the issue of retroactivity are not entitled to special weight;

and, in all events, Senator Kennedy stated only that the courts

would determine the extent to which the Act would apply to pend-

ing cases, not that the Act would be fully retroactive in all instances

except those set forth in Sections 109(c) and 402(b).

Stat. 1071. In the relevant “Purposes” provisions of the

Act, the 1991 Congress stated only that it intended “to

provide appropriate remedies for intentional discrimina-

tion and unlawful harassment in the workplace|,]" and

“to respond to recent decisions of the Supreme Court by

expanding the scope of relevant civil rights statutes... .”

CRA §§ 3(1), 3(4); 105 Stat. 1071. There is no finding

or stated purpose that the Act's new provisions are to be

applied to conduct or trials that have already occurred;

indeed, the concepts of “deterring” and “providing addi-

tional protections” against unlawful conduct, and of “ex-

panding” the scope of the civil rights laws, suggest pre-

cisely the opposite conclusion.

This Court should not simply assume on the basis of

“vague notions of [the Act's] *hasic purpose’ that Con-

gress intended to act retroactively. Mertens v. Hewitt

Assocs., 61 U.S.L.W. 4510, 4515 (U.S. June 1, 1993).

Like so many statutes, this Act purported to settle “in-

numerable disputes between powerful competing interests

—not all in favor of potential plaintiffs.” /d. Particularly

in these circumstances, it would “ ‘frustrate[] rather than

effectuate|]| legislative intent simplistically to assume that

whatever furthers the statute’s primary objective must be

the law.” PBGC vy. LTV Corp., 496 U.S. 633, 647

(1990) (citation omitted) (emphasis in original), In-

deed, as this Court has observed, “the purpose of a stat-

ute includes not only what it sets out to change, but also

what it resolves to leave alone.” West Virginia Univ.

Hosps., Inc. v. Casey, 111 8. Ct. 1138, 1147 (1991),

The statute’s text and legislative history, when read in

conjunction with the traditional presumption of prospec-

tivity, establish that Congress intended to change the

rules only for future conduct and future trials; the fact

that Congress decided to revise the civil rights laws in re-

sponse to decisions of this Court, and to expand the rem-

edies and procedures of the pre-existing statutory scheme,

simply does not suggest, much less establish, that Con-

gress intended to act retroactively.’

Ill. THE PRESUMPTION THAT A STATUTE DOES

NOT APPLY TO CONDUCT OR TRIALS OCCUR-

RING BEFORE THE DATE OF ITS ENACTMENT

APPLIES TO SECTION 101 OF THE CIVIL RIGHTS

ACT OF 1991

Apparently recognizing that the text, legislative history

and purposes of the Civil Rights Act of 1991 do not

clearly and unequivocally command retroactive applica-

tion of any of its provisions, petitioners and the Solicitor

General argue in the alternative (Pet. Br. 20-44; U.S. Br.

7-9, 17-28) that, at least with respect to Section 101 of

the Act, no such command is necessary. Rather, citing

Bradley v. School Board, 416 U.S. at 711, which stated

that “a court is to apply the law in effect at the time it

renders its decision, unless doing so would result in mani-

fest injustice or there is statutory direction or legislative

history to the contrary.” petitioners and the Solicitor Gen-

eral argue that the rights expressly stated in Section 101,

and its correlative remedies and jury trial rights, must be

judicially presumed to apply even to conduct and trials

that, as here, occurred prior to the statute’s enactment.

This argument should be rejected.

A. Petitioners Err In Characterizing Section 101 As

A Mere Remedial, Precedural Or Restorative Law

As petitioners and the Solicitor General ultimately con-

cede (Pet. Br. 30, 39-43; U.S. Br. 7-8, 17-21), this

7 Congress regularly passes legislation that overrules decisions

of this Court (and the lower federal courts) and that adds new

remedies and procedures to pre-existing statutory schemes. See

William N. Eskridge, Jr., Overriding Supreme Court Statutory

Interpretation Decisions, 101 Yale L.J. 331, 335-36 (1991) (since

1975, Congress has annually overruled an average of 12 Supreme

Court decisions). The argument of petitioners and the Solicitor

General does not and cannot explain why this Act, but not all of

these countless other statutes, should be interpreted to apply

retroactively.

Court’s decision in Bennett v. New Jersey, 470 US. at

639, makes it clear that the presumption of retroactivity

arguably found in Bradley must be reconciled with the

traditional presumption of prospectivity and cannot apply

to laws that “affect[] substantive rights and liabilities.”

Petitioners and the Solicitor General seek to avoid Ben-

nett by arguing (Pet. Br. 30-39; U.S. Br. 9, 25-28) that,

as a remedial, procedural and restorative law, Section 101

does not “affect[] substantive rights and liabilities.” But,

even assuming, arguendo, that remedial, procedural and

restorative laws do not affect substantive rights and liabil-

ities, which they may and frequently do, it is clear that

petitioners and the Solicitor General err in characterizing

Section 101 as a mere remedial, procedural and or resto-

rative law.

1. Section 101 Does Not Merely Create New Reme-

dies And Jury Trial Rights For Pre-Existing

Wrongs Under Title Vil

Contrary to the argument of petitioners and the Solici-

tor General (Pet. Br. 32-33; U.S. Br. 25-26), Section 101

does not merely create new remedies and jury trial rights

for pre-existing wrongs under Title VII. As the Solicitor

General concedes (U.S. Br. 26 n.16), Section 101 pro-

hibits much conduct that Title VII does not prohibit

(e.g., Section 101, but not Title VII, applies to small

employers). and thus it is inaccurate to say that the two

Statutes enact the same substantive norm. Even more im-

portantly. however, even if Section 101 and Title VII

enacted the same substantive norm, it is nevertheless still

the case that Section 101 is a distinct positive law. For

this reason, as every court of appeals to address the

question has concluded, Section 101 cannot properly be

characterized as merely creating new remedies and jury

trial rights for pre-existing wrongs under Title VII, much

less retroactive ones. See Hicks v. Brown Group, Inc.,

982 F.2d 295, 297 (8th Cir. 1992) (en banc). petition

for cert. filed, 61 U.S.L.W. 3669 (U.S. Mar. 23, 1993)

(No. 92-1538); Baynes v. AT&T Technologies, Inc., 976

F.2d 1370, 1374 n.5 (11th Cir. 1992): Gersman, 975

F.2d at 899; Johnson v. Uncle Ben's, Inc., 965 F.2d

1363, 1374 (Sth Cir. 1992), petition for cert. filed, 61

U.S.L.W. 3356 (U.S. Sept. 29, 1992) (No. 92-737).

That Title VII may already have proscribed some con-

duct that Section 101 now also proscribes is legally irrele-

vant. This Court has recognized that “the legislative

history of Title VII manifests a congressional intent to

allow an individual to pursue independently his rights

under both Title VII and other applicable state and fed-

eral statutes.” Alexander v. Gardner-Denver Co., 415

U.S. 36, 48 (1974). It has thus held, for example, that

the non-discrimination rights and obligations that collec-

tive bargaining agreements create and that are enforce-

able under the federal labor laws must be treated as

legally distinct from the non-discrimination rights and

obligations that Title VII creates—even if they are identi-

cal in content. Jd. at 50-51. Likewise, the Court has

long held that the rights that Section 1981 and Title VII

establish are “‘separate, distinct, and independent.” John-

son v. Railway Express Agency, Inc., 421 U.S. 454, 461,

476 n.14 (1975): Great American Fed. Sav. & Loan

Ass’n v. Novotny, 442 U.S. 366, 377 (1979). As with

Title VII and these other laws, Title VII and Section 101

were enacted at different times, and by different Con-

gresses. Thus, the substantive rights and obligations posi-

tively created by Title Vi! and Section 101, while similar

in content in certain respects, must be treated as legally

distinct and independent from each other. See Morton

v. Mancari, 417 U.S. 535, 551 (1974) (“[W]hen two

statutes are capable of co-existence, it is the duty of the

courts, absent a clearly expressed congressional intention

to the contrary, to regard each as effective.”). The

amendment that Section 101 makes to Section 1981 is

not drained of its substantive content simply because

Title VII contains a somewhat similar behavioral

prohibition.

Indeed, to treat Section 101 as merely creating new

(retroactive) remedies and procedures for pre-existing

wrongs under Title VII would frustrate the intent of Con-

gress. In enacting Section 101, Congress treated it

as statutorily separate and distinct from the rights

and enforcement scheme of Title VII. Thus, whereas

Section 101 expressly expands the substantive rights (and

thus implicitly expands the correlative remedies and jury

trial rights) available in Section 1981 cases, it is Section

102 of the Act that supplies new damages remedies and

jury trial rights for cases brought to enforce rights

created under Title VII. The new damages remedies

and jury trial rights available under Section 102, how-

ever, are subject to distinct statutory limitations that do

not apply to or limit cases brought under Section 101; just

as the markedly different remedies and procedures avail-

able under Title VII, as originally enacted, were subject

to distinct statutory limitations not applicable to Section

1981. See United States v. Burke, 112 S. Ct. 1867, 1873

& n.12 (1992). Thus, Section 102 confirms that the

remedies and procedures available under Section 101 are

not to be applied in cases involving Title VII’s prohibi-

tions and, concomitantly, that Section 101 may not prop-

erly be treated as a mere (retroactive) remedial and pro-

cedural supplement to Title VII. To do so would violate

the “frequently stated principle of statutory construction

... that[,] when legislation expressly provides a particular

remedy or remedies, courts should not expand the cover-

age of the statute to subsume other remedies.” National

R.R. Passenger Corp. v. National Ass'n of R.R. Passen-

gers, 414 U.S. 453, 458 (1974); see also, e.g., Patterson,

491 U.S. at 181; Brown v. General Servs. Admin., 425

U.S. 820, 832 (1976).°

* The question whether the new damages remedies and jury trial

rights created by Section 102 of the Act apply retroactively is at

issue in the companion case to this one, Landgraf v. USI Film

Products, No. 92-757. However, petitioners in this case have not

argued that Section 102 applies retroactively +» their Title VII

claims; their argument is limited to whether Section 101 of the

Act applies retroactively to their Section 1981 claims.

2. Section 101 Is Not A Mere “Restorative” Law

Just as it does not merely create new remedies and

procedures for pre-existing wrongs under Title VII, Sec-

tion 101 does not merely “restore” Section 1981 to the

state allegedly intended by the Congress that enacted it.

The contrary argument of petitioners and the Solicitor

General (Pet. Br. 35-39; U.S. Br. 26-28) is plainly

wrong.

To begin with, petitioners err in their repeated, self-

serving—and, we believe, legally irrelevant—assertion

( Pet. Br. 10-1 1, 27-28. 35-39) that it was clear at the

time of the conduct at issue in this case that respondent

could be held liable under Section 1981 for the alleged

discriminatory discharges of petitioners. At the time,

it was clear that several Justices of this Court held

the view that the interpretation of Section 1981 an-

nounced in Runyon v. McCrary, 427 U.S. 160 (1976),

was incorrect and that Runyon’s reach should be

limited, if not reconsidered. Sce id. at 187 (Powell, J.,

concurring); id. at 192 (White, J., & Rehnquist, J., dis-

senting); General Bldg. Contractors Ass'n vy. Pennsyl-

vania, 458 U.S. 375, 406 (1982) (Stevens, J., concur-

ring). Moreover, at the time, while a number of courts

had held or assumed that Section 1981 applied to dis-

criminatory discharge claims, a number of lower courts

had held that Section 1981 did not apply to all aspects

of the employment relationship. See, e.g., Williams v.

Atchison, Topeka and Santa Fe Ry., 627 F. Supp. 752,

757 (W.D. Mo. 1986): Minority Police Officers v. City

of South Bend,17 F. Supp. 1330, 1352 n.52 (D. Ind.

1985). aff'd, 801 F.2d 964 (7th Cir. 1986) (same).

Indeed, the Fourth Circuit decision that led to the cer-

tiorari grant and ultimate decision in the Patterson case

had been fully briefed and argued by this time—and was

rendered only two months later. See Patterson v. McLean

Credit Union, 805 F.2d 1143 (4th Cir. 1986). In short,

the law under Section 1981 was in a state of flux at the

time, and it was certainly foreseeable that, when presented

with the question, this Court might hold Section 1981 to

be inapplicable to claims that did not concern the initial

formation or enforcement of a contract. See Gersman,

975 F.2d at 900 n.7 (“[I]t is far from altogether clear

that the law before Patterson was universally perceived to

be contrary to the Patterson holding.” ).

In any event, petitioners plainly err in suggesting that

the question whether Section 101 is a “restorative” law

can properly be determined by reference to what conduct

particular individuals may at the time have subjectively

believed was or was not covered by Section 1981. The

nature and reach of a law cannot shift and spring on the

basis of such individual expectations and understandings;

to allow it to do so would result in courts having to make

unwieldly distinctions between litigants on the basis of

their equitable and reliance interests and, even more

importantly, to treat similarly situated litigants differently

mere'y because they viewed the requirements of the law

differently. Accord, Harper v. Virginia Dep’t of Taxation,

No. 91-974, slip op. at 6-7, 8-9 (U.S. June 18, 1993).

Indeed, in the context of determining whether a sub-

sequent law is “restorative” of a prior law, it is incon-

ceivable that the issue would turn on the subjective or,

for that matter, the objective understandings of the prior

law by particular individuals. No private individual can

determine what Congress will intend to do in a later

enactment. Only the later enacting Congress can de-

termine whether it is “restoring” either a prior Congress’s

supposed intent or a prior judicial interpretation of that

intent. Moreover, while the consistency and quality of

judicial interpretations of a prior law may influence the

later Congress’s judgment about whether it is appropriate

to enact a “restorative” law, such interpret: ions are not

determinative of that subsequent congressional intent.

Rather, that subsequent intent can be established only

by the language, structure, and legislative history of the

subsequent statute. And, contrary to petitioners’ argu-

ment, the language, structure, and legislative history

of the Civil Rights Act of 1991 do not manifest an intent

to “restore” Section 1981 to some alleged prior state—

much less to “restore” it retroactively.

As noted above, the Act's “Findings” section speaks

only of the need for “additional protections against unlaw-

ful discrimination in employment” and ‘additional reme-

dies . . . to deter” such discrimination. CRA §§ 2(1),

2(3); 105 Stat. 1071 (emphases added). As also noted

above, the Act’s stated “Purposes” are, among other

things, only “to provide appropriate remedies for inten-

tional discrimination,” “to codify” this Court’s definitions

of “business necessity’ and “job related” in Griggs v.

Duke Power Co., 401 U.S. 424 (1971), and subsequent

decisions, and “to respond” to other decisions of this

Court, including Patterson, ““by expanding the scope of

relevant civil rights statutes.” CRA §§$3(1), 3(2),

3(4); 105 Stat. 1071 (emphasis added). The Act thus

does not state anywhere that it intends to “restore” Sec-

tion 1981 to any supposed prior state.

In fact, the omission of such a stated intent was not

accidental. The Act’s legislative history shows that cer-

tain factions in Congress wished to pass legislation with

express statements of ‘restorative’ intent. But they

failed. And the final statutory language points in the

other direction.

{

As is implicit in petitioners’ argument (Pet. Br. 25,

38-39 n.36), the Bush Administration initially opposed

any legislative revision of Section 1981 as interpreted by

the Patterson Court, preferring instead to study the effects

of the Court’s interpretation. Moreover. when the Ad-

ministration finally agreed to a legislative revision of Sec-

tion 1981, then-Deputy Attorney General Donald B. Ayer

explicitly testified:

that important changes are necessary in two ureas.

The first is the situation posed by ti.e U.S. Supreme

Court’s decision in the Patterson case involving sec-

tion 1981... . The U.S. Supreme Court read

. the words “make and enforce,” which are in-

deed the words of the statute, to mean precisely

that, one might say read them narrowly in terms

of their precise meanings, and I must say in that,

I think, acted reasonably.

But at the same time as I say they acted reason-

ably, I think the Court left us with a situation plainly

requiring legislative change.

Civil Rights Act of 1990: Hearing on S. 2104 Before the

Senate Comm. on Labor and Human Resources, 10\st

Cong., Ist Sess. 107 (1990); see id. at 105 (“‘the deci-

sions . . . are well within the zone of reasonable inter-

pretation’). Deputy Attorney General Ayer’s views were

echoed by key Republicans in Congress. See, e.g., 135

Cong. Rec. $10221 (daily ed. Aug. 4, 1989) (statement

of Sen. Hatch) (noting that the Patterson Court gave

“{a] reasonable reading” of Section 1981); 136 Cong.

Rec. $1523 (daily ed. Feb. 22, 1990) (statement of Sen.

Dole) (“Although [Patterson| . . . may have been correct

as a matter of statutory construction, the Justice Depart-

ment believes—and I agree—that legislation is needed to

ensure that the underlying purposes of our Federal civil

rights laws are not needlessly frustrated.’’).

Of course, the Civil Rights Act of 1990 nevertheless

included express “restorative” language. See S. 2104,

101st Cong., Ist Sess. (1990), reprinted in 136 Cong.

Rec. H6827-30 (daily ed. Aug. 3, 1990). S. 2104 stated

that its purpose, among other things, was “‘to respond to

the Supreme Court's recent decisions by restoring the

civil rights protections that were dramatically limited by

those decisions.” /d. at H6827 ($ 2(b)(1)). Moreover,

the bill had two provisions with express “restorative” in-

tents: Section 4 was entitled “Restoring The Burden Of

Proof In Disparate Impact Cases,” id. at H6827-28; and

Section 12, which addressed the Patterson decision, was

entitled “Restoring Prohibition Against All Racial Dis-

crimination In The Making And Enforcement Of Con-

tracts,” id. at H6829. Indeed, Section 15 set out express

rules for applying those various provisions retroactively,

including Section 12. /d.

But President Bush vetoed the Civil Rights Act of

1990. See 136 Cong. Rec. $16418-19 (daily ed. Oct.

22, 1990). Moreover, in his veto message, President Bush

made it clear that he did not view the Administration’s

proposal to revise Section 1981 as serving a “restora-

tive” purpose #f all; rather, he explained that his alterna-

tive bill would “create expanded protections against on-

the-job racial discrimination by extending 42 U.S.C.

$ 1981 to the performance as well as the making of con-

tracts.” 136 Cong. Rec. $16418 (daily ed. Oct, 22,

1990).

In 1991, the battle among the competing factions con-

tinued. The House passed H.R. 1, which, like the vetoed

Civil Rights Act of 1990, contained express indications

of both a restorative and retroactive intent. See H.R. 1,

102d Cong., Ist Sess. $$ 2(b)(1), 102, 110, 113 (June

11, 1991). Ultimately, however, a majority agreed upon

provisions with titles that do not have express restorative

purposes (or retroactive transition rules). See CRA

§ 105, 105 Stat. 1074 (“Burden of Proof in Disparate

Impact Cases”); CRA § 101, 105 Stat. 1071 (“Prohibi-

tion Against All Racial Discrimination In The Making

And Enforcement Of Contracts”). And the majority

agreed that the Act’s express “Purposes” would speak

only of “respond{ing]” to Supreme Court decisions, and

of “expanding” the remedies and protections of the civil

rights laws, rather than “restoring” them. See CRA

§ 3, 105 Stat. 1071."

®In doing so, some members of Congress claimed that the revi-

sion to Section 1981 served a restorative purpose, while others

claimed that it did not. Compare 137 Cong. Rec. H9526 (daily ed.

Nov. 7, 1991) (Edwards interpretive memorandum) (Section 101

has restorative purpose) ; id. at S15234-35 (daily ed. Oct. 25, 1991)

(statement of Sen. Kennedy) (same); with id. at H9543 (daily

ed. Nov. 7, 1991) (Hyde interpretive memorandum) (Section 1981

is being expanded) ; id. at $15472 (daily ed. Oct. 30, 1991) (Dole

interpretive memorandum) (same).

Thus, the text and legislative history of the Act fail

to support petitioners’ contention that Congress had a dif-

ferent opinion as to the original meaning of the Civil

Rights Act of 1866 than did this Court and, in passing

Section 101, was acting to “restore” that original intent

or some prior judicial interpretation of that intent. While

some factions in Congress may have held this view,

neither the statute’s text nor its legislative history sug-

gests that a majority agreed upon it.

B. Even Remedial, Procedural And Restorative Laws

Are Subject To The Traditional Presumption Of

Prospectivity

In any event, even if Section 101 of the Act could

properly be characterized as in some sense “remedial,”

“procedural” or “restorative,” it still would be subject to

the traditional presumption that statutes are not applied

to conduct or trials occurring before the dates of their

enactment unless Congress has clearly and unequivocally

so required. The Court has in fact held that the “rule

[t}hat a statute shall not be given retroactive effect unless

such a construction is required by explicit language or by

necessary implication .. . has been applied by this Court

to statutes governing procedure,” United States v. St.

Louis, San Francisco & Texas Ry., 270 U.S. 1, 3 (1926).

It is therefore clear that that presumption would apply

in the event a litigant was seeking retroactive application

of a new, free-standing jury trial right to a trial that had

already occurred. However, in the context of Section

101, there is no separate issue as to whether a free-

standing jury trial right is presumed to apply only pro-

spectively; the jury trial right that is implicitly embodied

there applies only where the substantive right and cor-

relative remedies of that section apply. And it is clear

that the traditional presumption applies to Section 101’s

substantive rights and correlative remedies, even if they

could be described as having a “remedial,” “procedural,”

or “restorative” character.

1. New Damages Rules And Restorative Laws May

Affect Substantive Rights And Liabilities

Contrary to the argument of petitioners and the Solici-

tor General, new damages rules and supposedly restora-

tive laws are plainly laws that may “affect|] substantive

rights and liabilities,” laws which even petitioners and

the Solicitor General admit (Pet. Br. 30, 39-44; U.S. Br.

17-21) are subject to the traditional presumption of pro-

spectivity. Whiie the Court has not had occasion specifi-

cally to discuss what laws may “affect[] substantive rights

and liabilities,” it has equated that phrase with the scope

of the traditional presumption of prospectivity. See Ben-

nett v. New Jersey, 470 U.S. at 639. Moreover, the

Court has held that the traditional presumption of pro-

spectivity applies to any law “by which human action is

regulated.” Union Pacific R.R. v. Laramie Stock Yards,

231 US. 190, 199 (1913). Accord, Reynolds vy.

M’Arthur, 27 U.S. at 434. New damages rules and

supposedly restorative laws plainly may constitute such

laws.

a. Just as with laws that impair vested rights or

establish new standards of conduct, laws that create new

damages rules regulate human action—i.e., they mate-

rially change the legal consequences of human behavior.

Thus, in its Ex Post Facto cases, the Court has said that

“‘It}he enhancement of a crime, or penalty, scems to

come within the same mischief as the creation of a crime

or penalty’ after the fact.” Weaver v. Graham, 450 USS.

24, 28 n.9 (1981) (quoting Calder v. Bull, 3 US. (3

Dall.) 386, 397 (1798) (Paterson, J.)). See also Miller

v. Florida, 482 U.S. at 433 (“a change in the law

that alters a substantial right can be ex post facto

‘even if the statute takes a seemingly procedural form.’ ”

(citation omitted)). And, likewise, in its civil cases, the

Court has applied the traditional presumption of prospec-

tivity to laws that would increase, for example, the inter-

est award that attaches to a liability. See United States

v. Maenolia Petroleum Co., 276 U.S. 160, 162-63

(1928). A retroactive change in the damages rules ap-

plicable to a claim “attaches a new disability, in respect

to transactions or considerations already past,” Sturges v.

Carter, 114 U.S. 511, 519 (1888), and thereby plainly

“affect[s] a substantive right or liability,” Bennett, 470

U.S. at 639.

Importantly, application of the presumption of prospec-

tivity to new damages rules furthers the policy that citi-

zens should have a fair opportunity to avoid the sanctions

established for the law’s violation. As Judge Posner has

explained, “|t]he 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.” Luddington, 966 F.2d at 229. “That is the

philosophy behind the ex post facto clause and also be-

hind the interpretive principle that presumes that a new

civil statute applies only to conduct that occurs after its

effective date.” Id.

Contrary to the argument of the Solicitor General and

the petitioners in these consolidated cases (Pet. Br. 28-

29; U.S. Br. 22-23; Pet. Br. No. 92-757, at 31-32), this

understanding of the presumption does not assume that

an employer has a “vested right to do wrong” or can

“pay for the right to discriminate.” It is important to

remember that, while Section 101 prohibits only inten-

tional discrimination, the argument that remedial laws

should be presumed retroactive cannot logically be limited

to the intentional discrimination context. Rather, the

argument extends to all sorts of laws—e.g., tax laws,

immigration laws, farm crop subsidy laws, and all types

of employment laws, including those that impose li-

ability on the basis of negligence, recklessness or even

just socially unacceptable consequences (such as a law

that prohibits employment policies with a disparate im-

pact which are not justified by “business necessity”).

Even the Landgraf petitioners appear to concede (Pet.

Br. No. 92-757, at 32 n.28) that, in such contexts, the

law in fact routinely instructs individuals to determine the

amount of care that must be taken by, among other

things, comparing the costs and benefits of taking addi-

tional precautions.

Even in the context of intentional discrimination laws,

the suggestion that a presumption of prospectivity for

remedial laws assumes that an employer has a right to

pay to discriminate is more invective than analysis. As

the late-Justice Marshall recognized:

An employer can act only through individual super-

visors and employees; discrimination is rarely carried

out pursuant to a formal vote of a corporation’s

board of directors. Although an employer may some-

times adopt company wide discriminatory policies

violative of Title VII, acts that may constitute Title

VII violations are generally effected through the

actions of individuals, and often an individual may

take such a step even in defiance of company policy.

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 75

(1986) (Marshall, J., concurring). The question, then,

that employers face is not whether they should pay for

the right to intentionally discriminate. Rather, the ques-

tion for an employer is how much to invest in programs

for education, training, detection, discipline and other

methods of prevention to ensure that others do not in-

tentionally discriminate (or appear to have discriminated ),

and thereby cause liability to be vicariously imposed on

the employer through principles of respondeat superior.

Knowledge of the remedies applicable under a statute

plainly and properly affect an employer's entirely non-

discriminatory resolution of this negligence-type question.

See id. at 70-72 (agreeing with EEOC that employer lia-

bility under Title VII for sexual harassment may be

affected by the precautions and safeguards that an em-

ployer has adopted); Jett v. Dallas Independent Sch.

Dist., 491 U.S. 701, 728 (1989) (holding that, if munici-

palities were subject to respondeat superior liability under

Section 1981, “the careful balance drawn by the 42d

Congress between local autonomy and fiscal integrity and

the vindication of federal rights could be completely

upset” )."”

While the foregoing suffices for present purposes, we

would add that the presumption of prospectivity naturally

and properly extends to protecting expectations about the

remedial consequences of even calculated non-compliance

with the law. In the criminal context, it is plain that the

Ex Post Facto Clause protects such expectations. See

Weaver, 450 U.S. at 30; James v. United States, 366 U.S.

at 247 n.3 (Harlan, J.). In the civil context, while the

constitutional prohibition is not nearly so absolute, the

philosophy of the ex post facto rule still applies, for

“many of us would squawk very loudly indeed if people

with unpaid parking tickets were made retroactively liable

[for]” substantially increased civil sanctions—e.g., civil

forfeiture of their cars. See Luddington, 966 F.2d at

229. Indeed, in both the civil and criminal contexts, the

' Indeed, even where an employer’s own allegedly intentionally

discriminatory conduct is in issue, a presumption of prospectivity

for remedial laws does not assume a right to pay to discriminate.

The remedies applicable to an intentional discrimination law affect

whether a law-abiding employer simply avoids or postpones lawful

adverse employment actions—and instead engages, for example, in

progressive discipline such as warnings—because the risk and

penalties of misperceived motives are too great. They also affect

whether an employer engages in demographic testing or validation

efforts prior to implementing an employment policy or practice.

They further affect how much time, effort and expense an em-

ployer incurs in contemporaneously documenting the lawful reasons

for its actions—-so that its decisions will be easier to defend in

the event that they are challenged. In addition, the available reme-

dies affect whether an employer obtains a legal opinion before

going forward with a decision, or offers severance pay in exchange

for a release of a possible claim. And the remedies applicable to a

possible claim affect the time, effort and expense that an employer

incurs in preserving and preparing the testimony of witnesses,

developing its litigation strategy, and putting on its case at trial.

In other words, the remedies available under a law shape a wide

variety of behavior that is entirely independent of any decision

whether to violate the law.

retroactive application of new sanctions is inconsistent

with the principle that iegislatures are ill-suited to the

task of retrospectively identifying wrongdoers and impos-

ing punishments. /d. at 228; see also Usery v. Turner-

Elkhorn Mining Co., 428 U.S. at 17-18 (the Court would

“hesitate to approve the retrospective imposition of lia-

bility on any theory of deterrence . . . or blameworthi-

ness.” ). In short, even in the civil remedial context, the

traditional presumption of prospectivity furthers the prin-

ciples of justice and limited government through checks

and balances that underlie the historic disfavor of retro-

active laws. Accord, Luddington, 966 F.2d at 228.

In the final analysis, therefore, there is simply nothing

jurisprudentially anomalous about the situation where

Congress amends a law and adds new remedies to a pre-

existing statutory scheme. Though it would be wrong

to do so (for the reasons explained above), it may even

be assumed, as do petitioners and the Solicitor General,

that retroactive remedial laws harbor less potential for

mischief and are less likely to upset settled expectations

or impair vested rights than other kinds of laws. Those

are simply reasons, however, why contemporary policies

and politics may lead Congress to act retroactively, and

reasons why this Court may be inclined to sustain such

retroactive remedial legislation against constitutional chal-

lenge. They are not reasons to presume that Congress

has chosen to act retroactively. On the contrary, because

retroactive remedial laws may alter the legal consequences

of human action just as surely as mav laws addressing

substantive standards of conduct, the judicial inquiry

should remain the same-——/.e., the Court should require a

clear and unequivocal statement by Congress of an in-

tent to act retroactively. Accord, Prince v. United States,

19 F. Cas. 1331, 1332 (C.C.D. Mass. 1814) (No.

11.425) (Story. J.) (“it is a general rule, that statutes

are to be construed to operate in futuro... . And this

maxim applies as well to remedial as to other statutes’ )

(emphasis added).

There is, in fact, an important practical reason to pre-

serve the traditional presumption of prospectivity in this

context. The issue here is what the so-called default rule

of construction should be in cases where Congress has

failed to make its intentions clear and unequivocal. The

simpler that default rule of construction is, the more likely

it is that the rule will serve its purpose of allowing Con-

gress, the courts and the citizenry to know what Con-

gress must do in order to make its laws retroactive. As

even the Solicitor General concedes (U.S. Br. 21), how-

ever, distinguishing between substantive laws, on the one

hand, and remedial (and procedural) laws, on the other

hand, is not a simple feat; and petitioners and the Solici-

tor General acknowledge that, even after that herculean

feat is completed, the three-factor “manifest injustice” test

still must be applied to determine whether a remedial

(or procedural) law is retroactive. Indeed, the Solicitor

General would add yet another level of analysis for law-

suits against the government. See U.S. Br. 21 n.11. It

is clear, therefore, that a presumption of retroactivity

for remedial (and procedural) laws would dramatically

increase the work required of the courts in interpreting

Statutes and, even more importantly, defeat the law-

informing and facilitating functions of the default rule

of construction that is at issue. There is no good reason

to adopt such an impractical interpretive course.

b. Nor is there good reason to adopt that interpretive

course in the context of so-called “restorative” laws. “Re-

storative” laws plainly may change the legal consequences

of human conduct. That they do so makes them quin-

tessential examples of laws that may “affect substantive

rights and liabilities.”

Contrary to the suggestion of petitioners and the Solic-

itor General (Pet. Br. 29-30, 35-37; U.S. Br. 25-26), it

does not matter that the so-called “restorative” law may

be consistent as a matter of fact with the subjective or,

for that matter, objective expectations of the particular

parties at the time the alleged conduct took place. As

noted above, litigants cannot “be distinguished for choice-

of-law purposes on the particular equities of their claims

to prospectivity: whether they actually relied on the old

rule and how they would suffer from application of the

new.” James B. Beam Distilling Co. v. Georgia, 111

S. Ct. 2439, 2447 (1991) (Opinion of Souter, J.).

“The applicability of rules of law are not to be switched

on and off according to individual hardship[.|” /d.

at 2448. Accord, Harper v. Virginia Dep't of Taxation,

No. 91-974, slip op. at 6-7 n. 9, 8-9. Indeed, a contrary

rule would create “enormous satellite litigation,” Lud-

dington, 966 F.2d at 229, in which courts would be

required to make “unwieldy distinctions between classes

of litigants based on the degree to which they relied

on the legal regime antedating the [passage of the

statute.]” Uncle Ben’s, Inc., 965 F.2d at 1374. In any

legal “system that aspires to fairness and equality, .. .

the substantive law will not shift and spring on such a

basis.” James B. Beam Distilling Co.. 111 S. Ct. at 2447.

Accord, Harper v. Virginia Dep’t of Taxation, supra.

Nor may the retroactivity of a statute turn, as petition-

ers and the Solicitor General suggest (Pet. Br. 36-39;

U.S. Br. 26-28), on whether a subsequent Congress pur-

ports to be correcting what it deems to be an erroneous

judicial interpretation of an earlier statute. “[I]t would

be naive to suppose that Congress sits to review the in-

terpretive soundness of judicial decisions. Congress is

not a judicial body, let alone a body of academic com-

mentators on judicial decisions.” Luddington, 966 F.2d

at 228. Moreover, this Court has repeatedly stressed that

“‘ t]he views of a subsequent Congress form a hazardous

basis for inferring the intent of an earlier one,” and that

“ijt is the intent of the Congress that enacted [the act]

... that controls.’ Mackey v. Lanier Collection Agency

& Serv., Inc., 486 U.S. at 840 (citations omitted).

“Congress, of course, has the power to change the law

and may amend the law to comport with either its own or

the (perceived) intentions of the Congress which orig-

inally enacted the law.” DeVargas v. Mason & Hanger-

Silas Mason Co., 911 F.2d 1377, 1388 (10th Cir. 1990),

cert. denied, 498 U.S. 1074 (1991). But “[w]hen a

subsequent Congress amends the law in response to the

Supreme Court’s interpretation, it does not revive the

original enacting Congress’s interpretation of the statute

which existed before the Supreme Court's interpretation.

Rather, the result of a subsequent Congress’s ‘restoration’

efforts is newly created law.” Jd. at 1338. As with any

newly enacted legislation, Congress must state its inten-

tions with regard to retroactivity clearly and unequivo-

cally. Accord, Dash v. Van Kleeck, 5 Am. Dec. at 312;

Luddington, 966 F.2d at 228.

Again, “[t]here is nothing jurisprudentially unique

about the situation where Congress amends a statute in

response to the Supreme Court's interpretation.” DeVar-

gas, 911 F.2d at 1388. To be sure, the “restorative” pur-

pose of a law may sometimes lead Congress to choose to

act retroactively; it may provide the political basis for

doing so (just as it may provide the political basis for

enacting a purely prospective law); or it may provide

a suggestion of Congress’s intent to act retroactively. Re-

storative purpose may also in some cases provide the jus-

tification for sustaining a retroactive law against constitu-

tional challenge. But the restorative nature of a law

should not change the threshold judicial inquiry into

whether Congress has acted retroactively. The principles

of justice and limited government through checks and

balances that underlie the presumption of prospectivity—

i.e., fair warning of the law and its sanctions, and limiting

the ability of those who frame the law retrospectively to

identify wrongdoers and impose sanctions—still require

that Congress make its intent to restore the law retro-

actively clear and unequivocal. Indeed, as with new

damages laws, altering the judicial inquiry for so-called

“restorative” laws would needlessly increase the workload

of the courts and unnecessarily complicate—in fact, de-

feat—the law-informing and facilitating functions of the

default rule of construction that is in issue.

2. This Court’s Case Law Does Not Justify Ex-

cepting Remedial, Procedural Or Restorative

Laws From The Traditional Presumption Of

Prospectivity

In arguing that new damages rules (and correlative

jury trial rights) and restorative laws should neverthe-

less be presumed to apply retroactively, petitioners and

the Solicitor General purport to find substantial justifica-

tion for their position in this Court’s case law. See Pet.

Br. 20-22, 27-29, 33-34, 35, 39-44; U.S. Br. 17-21. But

the Court’s cases in fact do not justify excepting remedial,

procedural or restorative laws from the traditional pre-

sumption of prospectivity.

a. To begin with, petitioners plainly err in suggesting

(Pet. Br. 39-44) that, under this Court’s cases, either new

damages laws (and correlative jury trial rights) or re-

storative laws are not “retroactive” at all. Contrary to

petitioners’ suggestion (Pet. Br. 40), “retroactivity” is not

a “term of art” which refers only to laws that would

disturb vested rights or change substantive standards of

conduct. Rather, the Court has defined a “retroactive”

law as one that “assign[s] . . . a quality or effect to acts

or conduct which they did not have or did not contem-

plate when they were performed.” Union Pac. R.R. v.

Laramie Stock Yards, 231 U.S. at 199; see also, eé.g.,

Sturges v. Carter, 114 U.S. at 519 (“‘[E]very statute,

which takes away or impairs vested rights acquired under

existing law, or creates a new obligation, imposes a new

duty, or attaches a new disability in respect to transac-

tions or considerations already past, must be deemed

retrospective.” (citation omitted)); Miller v. Florida,

482 U.S. at 430 (“A law is retrospective if it ‘changes

the legal consequences of acts completed before its effec-

tive date.’” (citation omitted) ). Thus, while some such

laws (such as trial procedures) may generally have only

prospective effect, it is clear that new damages rules (and

correlative jury trial rights) and restorative laws may in

fact be “retroactive” in their application, as they are

here, in the sense this Court has defined that term.

b. Joined by the Solicitor General, petitioners also sug-

gest (Pet. Br. 20-22, 27-29, 33-34; U.S. Br. 17-21) that

this Court has a long history in its cases of presuming

that remedial, procedural and restorative laws are retro-

active. But the case law does not support this suggestion.

To begin with, petitioners and the Solicitor General

conveniently ignore the fact that, under this Act, jury

trial rights do not apply independently of the new dam-

ages remedies (and substantive rights) created by Section

101 and, accordingly, that the question whether new jury

trial provisions should be presumed to apply retroactively

is not separately presented. Likewise, they ignore this

Court’s clear statement, made over a half century ago,

that the rule ‘‘[t]hat a statute shall not be given retroac-

tive effect unless such construction is required by explicit

language or by necessary implication . . . has been ap-

plied by this Court to statutes governing procedure.”

United States v. St. Louis, San Francisco & Texas Ry.,

270 U.S. at 3. Similarly, they ignore the many occasions

on which the Court has applied the traditional presump-

tion to procedural or remedial laws. See, e.g., id. (stat-

ute of limitations); Magnolia Petroleum Co., 276 US.

at 162-63 (statute determining date from which interest

on tax refund may be collected); Greene, 376 U.S. at

160 (regulation changing conditions under which mone-

tary restitution was payable). And, finally, petitioners

and the Solicitor General do not cite even a single case

that purports to hold that a “restorative” law is presumed

retroactive.

Equally important, the cases that the Solicitor General

and the petitioners in these consolidated cases do cite do

not apply a presumption of retroactivity to new damages

rules or restorative laws (or, for that matter, to new

jury trial provisions). Many of the cited cases involved

expressly retroactive laws or laws that drew upon antece-

dent facts for their operation; the question was generally

whether those expressly retroactive laws were constitu-

tional.’ Other of the cited cases concerned the retro-

activity of judicial decisions, which, unlike statutes, are

presumed to apply retroactively.” Still other of the cited

cases concerned the jurisdiction or jurisdictional discre-

tion of the courts,’* which, as Justice Thomas recently

explained, generally does not involve retroactive applica-

tion of the law and, in all events, “speak[s] to the power

of the court rather than to the rights or obligations of the

parties.” Republic Nat’! Bank of Miami v. United States,

113 S. Ct. 554, 565-66 (1992) (Thomas, J., concurring).

And still other of the cited cases concerned requests for

declaratory or injunctive relief against future conduct, ”

which also do not involve retroactive application of law.”

11 e.g., Sampeyreac v. United States, 32 (7 Pet.) U.S. 222,

dines te a v. Smith, 69 U.S. (2 Wall.) 160, 162, 174-

75 (1865); Frisbie v. Whitney, 76 (9 Wall.) U.S. 187, 180-08,

196-97 (1870); Cox v. Hart, 260 U.S. 427, 435 (1922) ; United

States v. Heinszen & Co., 206 U.S. 370, 381-82 (1907) ; Hutto v.

Finney, 437 U.S. 678, 694 n.23 (1978); The Schooner Peggy, 5

U.S. (1 Cranch) 103, 107, 110 (1801).

12 Gulf Offshore Co. v. Mobile Oil Corp., 453 U.S. 473, 486 n.16

(1981) ; Goodman v. Lukens Steel Co., 482 U.S. 656, 662 (1987).

13 See Bell v. New Jersey, 461 U.S. 773, 777 n.3 (1983) ; Andrus

v. Charlestone Stone Prods. Co., 436 U.S. 604, 607 n.6 ( 1978) ;

Ex Parte Collett, 337 U.S. 55, 71 (1949) (forum non conveniens

statute) ; Hallowell v. Commons, 239 U.S. 506, 508 (1916) ; Railread

v. Grant, 98 U.S. 398, 401 (1879). |

14. See Cort v. Ash, 422 U.S. 66, 74 (1975); Duplex Printing

Press Co. v. Deering, 254 U.S. 448, 464 (1921).

15 Petitioners and the Solicitor General cite a number of other

cases that do not fit in these categories but that still do not involve

a presumption by this Court that new statutes should apply retro-

actively. In Watts, Watts & Co., Ltd. v. Unione Austriaca Di

Navigazione, 248 U.S. 9, 21-23 (1918), the Court simply held that

the United States’ declaration of war made it inappropriate for a

federal court to continue with a proceeding. In Bonet v. Texas,

308 U.S. 463, 471 (1940), the Court held only that it could not find

“clear or manifest” error in a decision of the Supreme Court of

Puerto Rico that a local statute establishing a new procedure for

workers’ compensation laws applied to pending cases. Finally, in

Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 87 (1982), the Court

merely “assume[d], arguendo,” that new amendments applied to a

Indeed, only two decisions of this Court—Bradley v.

School Board, 416 U.S. 696, and Thorpe v. Housing Au-

thority, 393 U.S. 268 (1969)—can arguably be cited for

the proposition that a new statute may be presumed

retroactive—remedial, procedural, restorative, or other-

wise. In Bradley, the Court held that a new attorney

fees statute applied to a case that was pending in the

court of appeals at the time of the law’s enactment. In

Thorpe, the Court held that a new regulation, which was

promulgated while the case was pending on certiorari and

which required housing authorities to inform a tenant of

the reasons for an eviction prior to instituting the evic-

tion, should be applied to invalidate an eviction order

issued almost eighteen months before the regulation was

adopted. In each case, the Court justified its decision by,

among other things, stating that a court—or at least an

appellate court—must apply the law in effect at the time

that it renders a decision.

As Justice Scalia and a number of courts of appeals

have concluded, however, a rule of this type is irreconcil-

able with the traditional rule that statutes are presumed

prospective. See Bonjorno, 494 U.S. at 855 (Scalia, J.,

concurring); see also, e.g., Butts v. City of New York

Dep't of Housing Preserv. and Dev., 61 Fair. Empl. Prac.

Cas. (BNA) 579, 589 (2d Cir. 1993); DeVargas, 911

F.2d at 1390; Sargisson v. United States, 913 F.2d 918,

922-23 (Fed. Cir. 1990); Fray v. Omaha World Herald

Co., 960 F.2d 1370, 1374-75 (8th Cir. 1992). Moreover,

the Court's decision in Bennett expressly rejects the broad

sweep of the language in Bradley and Thorpe, and, in so

doing, has arguably “deprived Bradley [and Thorpe] of

[their] substantive content inasmuch as retroactive appli-

cation is never sought (or defended against) except as a

means of ‘affecting substantive rights and liabilities’ at is-

sue in the litigation.” Bonjorno, 494 U.S. at 853 (Scalia,

J., concurring); see also id. at 854. In all events, this

Court should make it clear that Bradley and Thorpe do not

justify excepting new remedial, procedural or restorative

laws from the traditional presumption of prospectivity.

First, as Justice Scalia explained in his Bonjorno con-

currence, id. at 844-51, Bradley and Thorpe made no

effort to reconcile their holdings or reasoning with the

traditional presumption that statutes are applied only

prospectively. They do not mention that traditional pre-

sumption or discuss any cases in which it was applied.

Moreover, as Justice Scalia further explained, the cases

that Bradley and Thorpe cite are entirely consistent with

the traditional rule. The Court should hesitate to build

exceptions to the traditional rule off of cases that do not

even discuss it, let alone provide a reasoned basis for

discarding it or departing from it. Indeed, as noted above

(at page 45), to do so would conflict with cases that

expressly hold that the traditional presumption ts applica-

ble, for example, to procedural and remedial laws.

Second, as noted above, in this context, a distinction

between substantive behavioral rules, on the one hand,

and remedial, procedural or restorative rules, on the other

hand, is conceptually and practically unsound. Again, the

issue here is not whether particular situations justify the

enactment of retroactive laws; rather, the issue is what

should be judicially presumed in the absence of clear

legislative direction. Even for new remedial, procedural

and restorative laws, a presumption of retroactivity is con-

trary to the principle that people should have fair warn-

ing of the laws against which their conduct will be meas-

ured and the sanctions that will be applied to them if they

fail to conform. While that principle of justice may be

less compelling to some in the context of what they regard

as remedial, procedural or restorative laws, it still applies

with sufficient force to recommend its use as a default

rule of construction that Congress is free to override.

Moreover, a presumption of retroactivity limited to new

remedial, procedural or restorative laws is still entirely

inconsistent with the principle of limited government that

legislation looks forwards, not backwards, and that the

power retrospectively to identify wrongdoers and punish

them is a power that should rarely, if ever, be exercised

by the legislature in the course of framing the law.

And a presumption of retroactivity for new remedial,

procedural and restorative laws, but not for substantive

laws, would needlessly increase the work of courts trying

to interpret statutes, and inevitably lead to confusion and

conflict in the development and administration of the law.

Indeed, the suspect nature of the entire enterprise is

confirmed by the “manifest injustice” qualification that

petitioners and the Solicitor General concede is necessary

for a presumption of retroactivity properly to work. As

is Clear from their application of it in this case, the “mani-

fest injustice” standard requires nothing less than a judi-

cial rebalancing of the myriad economic, moral, and

political considerations that Congress must consider in

determining whether retroactive action is justified and

desirable in a particular context. Thus, whereas the peti-

tioners in these consolidated cases urge that the Act

requires retrial of any cases pending on appeal on the

date of enactment, the Solicitor General advises (U.S.

Br. 24 n.14) that such retrials would be manifestly unjust

where the initial trial went to judgment without error.

Likewise, whereas the petitioners in these consolidated

cases urge that all of the Act’s damages provisions should

be applied retroactively, the Solicitor General advises

(U.S. Br. 23 n.13) that it may be manifestly unjust to

apply the Act’s punitive damages provisions retroactively.

“[A] rule of law, designed to give statutes the effect Con-

gress intended, has thus been transformed to a rule of

discretion, giving judges power to expand or contract the

effect of legislative action.” Bonjorno, 494 U.S. at 857

(Scalia, J., concurring). Whatever role a rule of discre-

tion might properly play in deciding whether to apply

this Court’s own decisions retroactively, it seems apparent

that such a rule of discretion has no proper role to play

in the interpretation of statutes. See TVA v. Hill, 437

U.S. 153, 194-95 (1978).

In sum, with all respect, to the extent that they purport

to establish a presumption of retroactivity for statutes,

Bradley and Thorpe are unsound at every turn. Con-

trary to basic principles of justice and limited government

through checks and balances, they start with the errone-

ous premise that retroactivity is the presumptive norm in

statutory law. And, contrary to long-standing teaching

about the proper role of courts in interpreting statutes,

Bradley and Thorpe seek to moderate this anomalous

presumption by improperly turning the law on and off

according to individual hardships and reliance interests.

This Court should clarify that the language concerning

retroactivity in Bradley and Thorpe does not state the

governing law, and that the lower courts should apply all

new statutes, including the Civil Rights Act of 1991,

prospectively, unless Congress has clearly and unequivo-

cally commanded to the contrary.

CONCLUSION

The judgment of the court of appeals should be af-

firmed insofar as it held that the Civil Rights Act of 1991

was not retroactively applicable to this case.

Respectfully submitted,

GLEN D. NAGER

(Counsel of Record)

LAURIE F.. CALDER

JONES, DAY, REAVIS & POGUE

1450 G Street, N.W.

Washington, D.C. 20005-2088

(202) 879-3939

JOHN T. LANDWEHR

THOMAS J. GIBNEY

EASTMAN & SMITH

One SeaGate, 24th Floor

P.O. Box 10032

Toledo, Ohio 43699-0032

(419) 241-6000

Date: June 25, 1993 Attorneys for Respondent

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.