Opposition Brief — Hicks v. Brown Group, Inc.

Suprome Court, U.S.

FILED

Re, |

No. 91-1116 | FEB 5 1992

OFFICE GF THE CLERK

IN THE

Supreme Court of the Bnited States

OcToBeR TERM, 1991

KENNETH HICKS,

Petitioner,

vs.

Brown Grovp, INc., d/b/a

BROWN SHOE COMPANY, INC.,

Respondent.

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

THOMAS M. HANNA’

SHELLEY M. PULLIAM

McMahon, BERGER, HANNA,

LINIHAN, Copy & McCarTHYy

2730 North Ballas Road

Suite 200

St. Louis, Missouri 63131

Telephone: (314) 567-7350

Attorneys for Respondent

* Counsel of Record

EUGENE F. JORDAN

Associate General Counsel

Brown Group, Inc.

P. O. Box 29

8400 Maryland Avenue

St. Louis, Missouri 63166

Telephone: (314) 854-4116

St. Louis Law Printing,Inc. 13307ManchesterRd. St Louis,MO 63131 314-231-4477

RULE 29.1 LIST

Brown Group, Inc., d/b/a Brown Shoe Company, Inc., has no

parent. Brown Group, Inc. holds no controlling interest in any

companies which are not wholly-owned subsidiaries.

— ili—

TABLE OF CONTENTS

I irs ccccsncesnnscsnnvesssecsnnssnsnssensesonse

PUMOUNS TOT DOOR YEE CC WIE ..........00:0cscccccessccsscssesscesses

I.

This Cause Is Not The Proper Vehicle Upon

Which To Grant Certiorari To Resolve The

Issue Of Whether The Civil Rights Act Of

1991 Applies Retrospectively To Pending

A. The Alleged Conflict Is Not The Type Of

Conflict Upon Which Certiorari Is Based

And Thus, 'n Accordance With Supreme

Court Rule 10, Review By This Court Is

I a iscccnnntansonsestpnacdesnsnssoroes

B. A Resolution Of This Issue As It Relates

To This Factually Unique Case May Not

Fully Resolve The Issue In General And

Thus, Lacks Sufficient General Impor-

tance To Merit Review By This Court ..

C. This Court Should Deny Certiorari On

The Issue Of The Retrospectivity Of The

Civil Rights Act Of 1991 Inasmuch As

Such Issue Is Not Properly Before This

Nis tlisinieuesttbbentansionssensievseees Cina

Il.

— ee

The Petition For Certiorari Should Be Denied

Outright Inasmuch As The Civil Rights Act Of

1991 Is Clearly Prospective In Nature ..........

A. The Civil Rights Act Of 1991 Is Not To

Be Applied Retrospectively ................+

1. Sponsors’ Interpretative Memoran-

2. Section By Section Analysis ..........

3. Supreme Court Authority ...............

B. The Civil Rights Act Of 1990 and H.R. 1

1991 Provide Further Indicia That The

Civil Rights Act Of 1991 Be Applied

Prospectively Only ...........:ccssccsseeseeeeeees

1. Civil Rights Act Of 1990 ............0.

nese

The Specific Wards Cove Exemption Of Sec-

tion 402(b) Does Not Support An Inference

Of General Retrospectivity .............:ccccceeeees

The Extraterritoriality Provision Of Section

109(c) Does Not Support An Inference Of

General Retrospectivity ..............cscssseesseeeeees

The EEOC Policy Guidance On Retrospectivity

Of The Civil Rights Act Of 1991 Comports

With The View That The Amendments Not Be

Applied Retrospectively ...........::cssseeseeseees

SN A la en ee ee SANDS) AS aR Neen Oe ee

13

14

15

16

17

18

18

19

19

20

21

22

Appendix

A. Order of the United States District Court for

the Eastern District of Missouri (October 28,

i TN A oe A-1

B. Order of the United States Court of Appeals

for the Eighth Circuit (October 31, | A-2

C. Order of the United States District Court for

the Eastern District of Missouri (November

Say Sec nentectctae A-3

—

TABLE OF AUTHORITIES

Page(s)

Cases:

Baxter v. Morizavires, 455 U.S. 1006 (1982) ............... 6

Bess v. Bess, 929 F.2d 1332 (8th Cir. 1991)................ 21

Bowen v. Georgetown University Hospital, 488 U.S.

BE AD cnxssnsnnsensinssrsevenesensssasssoesnennssncnstaaiene 15,16,17,18

Bradley v. School Board of the City of Richmond, 416

BED GI CIID ccsicsnscanernceesessecsrescsenssnnssqsesvecncsnsnnece 18

Bread Political Action Committee v. Federal Election

Commission, 455 U.S. 577 (1982) ............:cccceeeees 14

Brown Group, Inc. v. Hicks, 111 S$. Ct. 1299 (1991)... 2

Claridge Apartments Co. v. Commissioner, 323 U.S.

BITE PIED ncsnnsnssnenssenvesesoresesssspesstnescneoscssonsssessnecone 17

Consumer Product Safety Commission v. G.T.E.

Sylvania, Inc., 447 U.S. 102 (1980) ...........sesssee 13-14

Courtney v. Canyon Television & Appliance Rental, 899

F.2d B45 (Oth Cir. 1990) .........ccccrorssccscesccsssscesceeees 7

EEOC v. Federal Labor Relations Authority, 476 U.S. 19

PI ctenicsansedsnncncadhinansnasscsnseansntsensacsanstasnasantconenses 11

Federal Energy Administration v. Algonquin SNG, Inc.,

MBG U.S. SAB CUGIG) .....0000csncersscocscecsoscosesssvenseoresens 16

G.D. Searle & Co. v. Cohn, 455 U.S. 404 (1982) ......... 11

Gonzalez v. Home Insurance Co., 909 F.2d 715 (2d Cir.

— vii—

Greco v. Orange Memorial Hospital Corp., 423 U.S.

REAR NS oa EO ee oR Oe 6

Green v. United States, 376 U.S. 149 (1964) oo... 17

Hicks v. Brown Group, Inc., 902 F.2d 630 (8th Cir.

Para iinssdsveinsseichcibeiabidebpraganisdicteinap inadiscaaicceiabicp iinakreitions 2

High v. Broadway Industries, Inc., No. 90-1066-CV-W-3

ee IE a ITI stehcccdocasnstscnipnsichisdendaeliansiacesaannons 22

Kaiser Aluminum & Chemical Corp. v. Bonjorno, 110

ie idle Se EIU ssinicsesninncnsectlbsnasinsiephistenstiiuns 13,15,16,17

Lavender v. V & B Transmission & Auto Repair, 897

Pron CUE REE EI. MINI cscientenscuchittnciiantisonstenannotncninn 7

McKnight v. General Motors Corp., 908 F.2d 104 (7th

eT: HUMINT sistnseusiticilcnliiiinbsceiliiiiaaddbniaddaniniiaisniiseine 7

Miller v. United States, 294 U.S. 435 (1935)... 17

NLRB v. Locai 103, International Association of Bridge

WOPROTR, 454 US. SES CEGTB) ..ccccscccccocvcecsesesssccece 17

North Haven Board of Education v. Bell, 456 U.S. 512

PI ITNTTET Acdldscaiiaiienoneishitentehanalastaitidapiesuhindisdiliddbicideinician 16

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

So IUED vitestchsensessiniesidisinicieaciinlile bicsdiitioastiaaiadbasiddeiclibtiaatin yay

Russell v. United States, 464 U.S. 16 (1983) oo... 19

Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S.

ED LisniccriicestisssssehantileiaiaeisSailtsaadanieaaieenitbilineiaise 16

Taggart v. Jefferson County Child Support Enforcement

Unit, 915 F.2d 396 (8th Cir. 1990), reh’g en banc,

I e PTD scticascinsnsenssiainnsrecenidichaindannerniiacias 2

United States v. Magnolia Petroleum Co., 276 U.S. 160

GIPIIOTE Sircsisnooioneisiiastslansaonennnitsionsadiénlieantsmndiatandenilcinaadabeats 17

— viii —

United States v. Menasche, 348 U.S. 528 (1955) ......... 20-21

United States v. Vogel Fertilizer Co., 455 U.S. 16

IE ssl sionsnptistsniosncctancsaapinniesnidnhemenansegnciatiicdptesiciaienntiien 17

Statutes, Regulations and Rules:

ee IIE scheisietiesabeniienteonecicninennndiesaisensesnssetienmnennccnniinen passim

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

Immigration and Nationality Act of 1952, 66 Stat.

Ti pshshciesosconbicusteniesnileniiemiaiiapenaiiaiitsannsnnnimanmaneninnatomanvniine 20

Rule 10, Rules of the Supreme Court...............::0::ce00 4,7,8

Rule 14.1, Rules of the Supreme Courtt................::0000+ 1

Rule 40, Federai Rules of Appellate Procedure .......... 10,11,12

Miscellaneous:

137 Cong. Rec. S 15478 (daily ed. Oct. 30, 1991)........ 16

137 Cong. Rec. S 15483 (daily ed. Oct. 30, 1991)........ 15

137 Cong. Rec. S 15485 (daily ed. Oct. 30, 1991)........ 15

137 Cong. Rec. S 15953 (daily ed. Nov. 5, 1991) ........ 20

137 Cong. Rec. S 15963 (daily ed. Nov. 5, 1991) ........ 19

137 Cong. Rec. S 15966 (daily ed. Nov. 5, 1991) ........ 20

EEOC Policy Guidance on Retroactivity of Civil Rights

Diiin GE TEE GUO. ZF, TIDE) a ecsccxssssccinersescesnsereenes 21

Harlan, J., Manning the Dikes, 13 Record of N.Y.C. Bar

I ee I cicdisatiiarpasinsienioenesitinnsennniiaiiovennisionn 8

Fg EP cckenietiinnnninnanannnnsnanianananaisnanmaananenanaaniensuis 17

No. 91-1116

In THE

Supreme Court of the United States

OcTOoBER TERM, 1991

KENNETH HICcks,

Petitioner,

VS.

Brown Group, INc., d/b/a

BROWN SHOE ComPANY, INC.,

Respondent.

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

STATEMENT OF THE CASE

Pursuant to Supreme Court Rule 14.1(g), Petitioner is re-

quired to provide “[a] statement of the case containing the facts

material to the consideration of the questions presented.” (em-

phasis omitted). Inasmuch as Petitioner failed to provide this

Court with a statement including all material and procedural

facts, Respondent herein is compelled to provide a brief state-

ment of the case.

In 1982, Kenneth Hicks was terminated from his employment

by Brown Group, Inc., d/b/a Brown Shoe Company, Inc., Re-

spondent herein. Hicks brought suit under the Civil Rights Act

a eo

of 1866, codified at 42 U.S.C. § 1981, alleging that his termina-

tion was improperly motivated by his race, white. In 1988,

judgment was entered against Respondent based upon the jury’s

verdict. While the jury awarded Hicks zero in actual damages,

itnonetheless awarded Hicks Ten Thousand Dollars ($10,000.00)

in punitive damages. In response, the court modified the jury

verdict by increasing the verdict through a grant of additur,

awarding one dollar ($1.00) in nominal damages.

On appeal, a panel of the Eighth Circuit Court of Appeals

affirmed, Hicks v. Brown Group, Inc., 902 F.2d 630 (8th Cir.

1990), despite this Court’s earlier decision in Patterson v.

McLean Credit Union, 491 U.S. 164 (1989), which clearly held

that discriminatory discharges, inter alia, are not actionable

under § 1981. In response, Respondent herein properly and

timely filed a Petition for Rehearing En Banc, which was denied.

Accordingly, Respondent herein properly and timely filed its

Petition for a Writ of Certiorari with this Court.

In the interim, a different panel of the Eighth Circuit Court of

Appeals criticized Hicks, but, albeit reluctantly, followed prece-

dent. Taggart v. Jefferson County Child Support Enforcement

Unit, 915 F.2d 396 (8th Cir. 1990). Thereafter, the Eighth

Circuit then granted rehearing en banc in Taggart. In lighi of the

Circuit’s impending en banc decision in Taggart, this Court

vacated the judgment in Hicks and remanded the cause on writ

of certiorari. See Brown Group, Inc. v. Hicks, 111 S. Ct. 1299

(1991).

In June of 1991, the Eighth Circuit issued its en banc decision

in Taggart, holding that discriminatory discharge claims are not

actionable under section 1981. 935 F.2d 947, 948 (8th Cir.

1991). Thereafter, a panel of the Eighth Circuit issued an order

on October 9, 1991 reversing the judgment in favor of Hicks and

remanding the cause to the district court with directions to

dismiss the Complaint with prejudice. Hicks neither filed a

ae

petition for rehearing nor petitioned the court for an extension of

time in which to do so. On October 22, 1991, Hicks filed a

motion to stay the mandate pending an application for certiorari

with this Court, and Respondent herein filed its brief in opposi-

tion. By order of court dated October 28, 1991 United States

Magistrate David D. Noce dismissed the cause with prejudice.

At that point, the cause had been adjudicated under the laws that

existed prior to the enactment of the Civil Rights Act of 1991.

Despite the October 28, 1991 dismissal of the cause, the Eighth

Circuit granted Hicks’ motion to stay the mandate until Decem-

ber 30, 1991. The court further stated that if a petition for writ

of certiorari was filed on or before December 30, the stay would

continue.

In response, Hicks filed a motion to vacate Judge Noce’s order

dismissing the cause, which was subsequently granted on No-

vember 12, 1991. Hicks had yet to file his petition for writ of

certiorari. Nine days later, on November 21, 1991, the Civil

Rights Act of 1991 was enacted, which provided, in part, that

discriminatory discharges were actionable under section 1981.

Thereafter, Hicks filed a motion to vacate the Eighth Circuit’s

October 9, 1991 order, which reversed and remanded with

directions to dismiss Hicks’ cause, as well as a motion to extend

the stay of the mandate for eight days, so he might petition this

Court for a writ of certiorari. Both motions were denied. On

December 30, 1991, the stay of the mandate expired. On January

7, 1992, Hicks filed this Petition for Writ of Certiorari in this

Court.

a

SUMMARY OF ARGUMENT

Petitioner herein is urging this Court to grant his Petition for

Writ of Certiorari to the Eighth Circuit Court of Appeals to

decide the issue of whether the Civil Rights Act of 1991 is

retrospective ir nature and thus, applicable to the instant case.

Alternatively, Petitioner requests this Court to grant the petition,

vacate the Eighth Circuit’s prior judgment and remand the cause

to the court of appeals with directions to address the same issue.

In response, Respondent herein respectfully submits that this

Court, in its discretion, deny the instant petition. A review of the

unique procedural posture of this case, as well as all relevant

facts and circumstances, indicate clearly that this cause is not the

proper vehicle upon which to grant certiorari to resolve the issue

of whether the Civil Rights Act of 1991 applies retrospectively.

First, the alleged conflict alluded to by Petitioner is not the

type of conflict upon which certiorari is customarily based and

thus, in accordance with Supreme Court Rule 10, review by this

Court is unwarranted. The conflict upon which Petitioner bases

his petition arises among the district courts. Inasmuch as this

alleged conflict may in fact be resolved subsequently at the

appellate level, this ‘conflict’ is not ripe. It is the duty and

function of the appellate courts to resolve such conflicts, and

thus, this ‘conflict’ is properly resolved at the appellate level. In

accordance with that view, the type of conflict generally suffi-

cient to warrant review by this Court arises at the appellate level,

not at the district court level. In addition, the ‘conflict’ upon

which Petitioner bases his petition arises wholly outside the

realm of this particular case, thereby rendering this case an

inappropriate candidate for a grant of certiorari herein. Accord-

ingly, in accordance with Supreme Court Rule 10, the instant

petition should be denied.

—

Second, due to the unique factual and procedural posture of

this case, any resolution herein will not fully resolve the issue in

general and thus, this case is not the proper vehicle upon which

to base a grant of certiorari. As set out in more detail below, this

case has, in effect, been fully adjudicated as of October 9, 1991

under the laws that existed prior to the effective date of the Civil

Rights Act of 1991. In addition, the procedural posture of this

case evidences a gross abuse by Petitioner of the judicial system

and the federal rules, which afforded Petitioner the present

opportunity to seek certiorari herein. Such abuse should not be

condoned herein by a grant of certiorari.

Third, this case is an improper vehicle for review inasmuch as

the issue of the retrospectivity of the Civil Rights Act of 1991

was not properly or timely presented to the Eighth Circuit Court

of Appeals. The issue of the possible application of the Civil

Rights Act of 1991 to this case was initially raised in Petitioner’s

motion to vacate filed on December 23, 1991. This motion, in

essence, was a petition for rehearing which was neither timely

filed nor in the proper form. Accordingly, since this issue is not

properly before this Court, certiorari should be denied.

Moreover, Respondent submits that the inst» * petition be

denied outright inasmuch as the Civil Rights Act of 1991 is

clearly prospective in naiure, thereby rendering any grant of

certiorari unnecessary. Recent decisions of this Court have

fashioned a strong presumption against retrospectivity, which is

overcome only when Congress expressly declares otherwise.

There exist no such explicit declarations in the 1991 Act, and

thus, the 1991 Act is clearly prospective in application. Further-

more, legislative intent is clear that the 1991 Act is to be applied

only prospectively. Accordingly, this Court should deny this

petition in its entirety.

ae ona

REASONS FOR DENYING THE WRIT

I. This Cause Is Not The Proper Vehicle Upon

Which To Grant Certiorari To Resolve The Issue Of

Whether The Civil Rights Act Of 1991 Applies

Retrospectively To Pending Cases.

Petitioner herein is urging this Court to grant a wnit of

certiorari in efforts to breathe a second life into this particular

cause. Petitioner is seeking to have this Court either decide the

issue of retrospectivity of the Civil Rights Act of 1991 or,

alternatively, to order the cause remanded for further consider-

ation in light of the Civil Rights Act of 1991. Simply put,

Petitioner is seeking to apply the 1991 Act to this cause of action

which arose nearly ten years ago and was, in effect, fully

adjudicated before the passage of the 1991 Act.

Petitioner relies heavily upon the existence of an apparent

conflict which has surfaced among district courts in urging this

Court to grant the petition. To the contrary, the existence of a

direct conflict on a seemingly important issue is not dispositive;

this Court has, in its discretion, denied certiorari notwithstanding

such clear conflict. See, e.g., Baxter v. Morizavires, 455 U.S.

1006 (1982); Greco v. Orange Memorial Hospital Corp., 423

U.S. 1000 (1975). A review of the unique procedural posture of

this case and consideration of all relevant facts and circum-

stances demonstrates convincingly that this particular cause is

not the proper vehicle for the resolution of whether the 1991 Act

is to be applied retrospectively or prospectively.

A. The Alleged Conflict Is Not The Type Of Conflict

Upon Which Certiorari Is Based And Thus, In

Accordance With Supreme Court Rule 10, Review By

This Court Is Unwarranted.

When the Eighth Circuit Court of Appeals rendered its order

on October 9, 1991 ordering the dismissal of this cause with

ae,

prejudice, the order was wholly in accord with this Court’s

holding in Patterson, barring section 1981 suits based upon

discriminatory discharges. Moreover, the Eighth Circuit’s order

was in accord with various circuit courts as well. See, é.2.,

Gonzalez v. Home Insurance Co., 909 F.2d 715, 722 (2d Cir.

1990); McKnight v. General Motors Corp., 908 F.2d 104, 108-

09 (7th Cir. 1990), Courtney v. Canyon Television & Appliance

Rental, 899 F.2d 845, 849 (9th Cir. 1990); Lavender v. V & B

Transmission & Auto Repair, 897 F.2d 805, 807-08 (5th Cir.

1990). Clearly, since the decision of the Eighth Circuit rendered

herein did not conflict with other courts of appeals, a state court

of last resort, or did not otherwise so far depart from the accepted

course of judicial proceedings, a grant of certiorari would be

improvident herein. See S. Ct. R. 10.1(a).

Yet, Petitioner Hicks cites to several district court Opinions as

evidence of an alleged conflict sufficient to warrant a grant of

certiorari in this case. Notwithstanding the existence of such

alleged conflict among these certain district courts, this Court

should deny this petition. As explained above, no Rule 10

conflict arose due to the adjudication of this particular case. The

conflict to which Petitioner Hicks alleges is thus outside the

realm of this particular case, thereby rendering this case an

improper vehicle for review. Simply put, Petitioner Hicks is

attempting to ‘bootstrap’ the conflict so as to make this case

appear to be a proper vehicle for review. To the contrary, while

the district court cases cited by Petitioner Hicks may well be

proper candidates for ultimate review on certiorari, this case

most Certainly is not.

More importantly, this alleged ‘conflict’ is not yet ripe,

inasmuch as further litigation may produce a consensus at the

appellate level, or at least, a satisfactory majority. Accordin gly,

inasmuch as this issue may well be rendered moot by subsequent

courts of appeals’ rulings, this petition is, in essence, a request

for an advisory opinion, which therefore must be denied out-

ata

right. Again, the type of conflict sufficient to warrant review by

this Court must arise at the appellate level, not at the district

court level. As stated by Justice Harlan:

Generally speaking, nothing short of a difference of deci-

sion between two Courts of Appeals, or between a Court of

Appeals and the Court of Claims, whose judgments are

reviewable directly by the Supreme Court, will suffice to

satisfy the ‘conflict’ rule. A conflict of decision between

two district courts is not a ground for certiorari, since

resolution of such a conflict is a matter resting with the

Courts of Appeals.

Harlan, J., Manning the Dikes, 13 REcorD oF N.Y.C. BAR Ass’N

541, 552 (1958) (emphasis added).

Thus, the conflict alleged herein is clearly not one which

merits review by this Court. Not only is Petitioner Hicks

attempting to bootstrap the conflict to proffer an appearance of

a meritorious basis for review, he is also attempting to deny the

courts of appeals the opportunity to perform that which they

were created to do—produce a consensus among their respective

district courts. As exemplified throughout the existence of our

judicial system, conflicts among district courts are properly

resolved by the respective courts of appeals, and not by this

Court. Accordingly, inasmuch as this conflict is not yet ripe for

review, nor within the scope of Supreme Court Rule 10, this

Court, in its exercise of discretion, should deny certiorari herein.

B. A Resoiuiion Of This Issue As It Relates To This

Factually Unique Case May Not Fully Resolve The Issue

In General And Thus, Lacks Sufficient General

Importance To Merit Review By This Court.

Although the issue of the retrospectivity of the Civil Rights

Act of 1991 might well be significant in future cases that may be

presented properly before this Court, the unusual posture of this

=

particular case renders it an inappropriate candidate for consid-

eration of this issue. For all practical purposes, this case has been

fully and finally adjudicated. This matter, arising nearly ten

years ago, has been fully tried before a jury, appealed and

affirmed, denied rehearing en banc, vacated and remanded by

this Court, reversed by the Eighth Circuit on October 9, 1991

with orders to dismiss and, in accordance with such orders, a

mandate had, in fact, issued dismissing this case with prejudice

—— all prior to the passage of the Civil Rights Act of 1991. Yet,

while Petitioner Hicks wholly failed to file a proper and timely

motion for rehearing en banc in response to the October 9, 1991

order, just prior to the issuance of the mandate he filed a motion

to stay the mandate for the express and sole purpose of “applica-

tion to the Supreme Court for a Writ of Certiorari.” This motion,

granted after the mandate had already issued, provided for a stay

up to and including December 390, 1991, which was to continue

provided Petitioner Hicks filed his petition within that period.

Yet, Petitioner Hicks filed his petition on January 7, one week

after the expiration of the stay of the mandate.

While technically this case may be deemed “pending” inas-

much as the order issuing the mandate was vacated, for all

practical effects and purposes this matter has been fully and

finally adjudicated prior to the passage of the Civil Rights Act of

1991. Specifically, the October 9, 1991 order represented the

full adjudication of the parties’ rights; the ministerial act of the

issuance of the mandate itself, which was immediately forth-

coming inasmuch as the stay of the mandate had expired, was all

that remained. Petitioner Hicks was apparently cognizant of this

fact, as represented by his unsuccessful attempt to extend the stay

of the mandate, which was set to expire on December 30, 1991.

Inasmuch as this case is not representative of the type of cases

which would, in fact, be otherwise appropriate vehicles for

review, a resolution of the issue in this case will not resolve the

alleged conflict and thus, certiorari should be denied.

—

Further indicia of the ‘finality’ of this cause as of October 9,

1991 is Petitioner Hicks’ failure to file timely a petition for

rehearing with suggestions for rehearing en banc in response to

the Eighth Circuit’s October 9 adjudication. As evidenced by his

failure to so file, there existed no “points of law or fact which in

the opinion of the petitioner the Court ha[d] overlooked or

misapprehended.” Fed. R. App. P. 40(a). Thus, it is clear that

Petitioner Hicks’ motivation behind his motion to stay the

mandate was not, in fact, to petition for certiorari as he so

represented — there existed no proper grounds upon which such

petition could be based. To the contrary, Petitioner Hicks’

motivation behind the motion to stay the mandate was solely to

delay the issuance of the mandate in anticipation of the passage

of the Civil Rights Act of 1991. Thus, in the event of such

passage, Petitioner Hicks could rely upon the Act to revive his

cause of action. In fact, Petitioner Hicks concedes as much in his

Statement of the Case. He states: “At [the time of the expiration

of the period in which to petition for rehearing], the Civil Rights

Act of 1991 was not law. ... Accordingly, plaintiff Hicks was

in no position to file a timely petition for rehearing ....” Petition

for Writ of Certiorari, at 6.

Moreover, this is not the first instance in this case whereupon

Petitioner Hicks had awaited in anticipation the passage of

intervening legislation. When this cause was previously before

this Court on a petition for writ of certiorari, Petitioner herein

urged this Court to exercise judicial restraint in interpreting

section 1981 based in significant part upon the speculation that

Congress was soon to pass the Civil Rights Act of 1990. Thus,

it is clear that at the time Petitioner Hicks filed his motion to stay

the mandate, it was not filed with the intention to file a petition

for certiorari, but was filed to bide time for Congress to pass the

legislation which would provide his only basis for further re-

view. Itis only as aresult of this abuse of the judicial process that

allows Petitioner Hicks, on the basis of a procedural technicality

a | en

arising solely from this flagrant abuse, to argue for the ultimate

revival of his cause. Such abuse cannot be condoned herein by

the grant of certiorari.

As demonstrated by the foregoing, this is not the proper

vehicle for this Petition for Writ of Certiorari on this issue. Not

only has this case, in effect, been finally adjudicated, but the

procedural posture evidences a gross abuse of the judicial system

and the federal rules. Such abuse and indifference to notions of

judicial economy, to which Petitioner Hicks now conveniently

alludes, should not be rewarded. In summary, the resolution of

the issue as it relates to the peculiar posture of this case effec-

tively precludes a finding of broad, general importance to merit

review by this Court. Accordingly, this Court, in its discretion,

should deny this Petition for Writ of Certiorari.

C. This Court Should Deny Certiorari On The Issue Of

the Retrospectivity Of The Civil Rights Act Of

1991 Inasmuch As Such Issue Is Not Properly

Before This Court.

The issue of the retrospectivity of the Civil Rights Act of 1991

is not properly before this Court inasmuch as it was not properly

or timely raised before the Eighth Circuit Court of Appeals. The

issue of the possible retrospectivity of the Civil Rights Act of

1991 initially was raised in Petitioner Hicks’ motion to vacate

filed on December 23, 1991. Such motion is one not contem-

plated by either the Federal Rules of Appellate Procedure or the

local rules of the Eighth Circuit. In essence, the motion was a

petition for rehearing which was neither timely nor in the proper

form. See Fed. R. App. P. 40. Accordingly, this issue was not

properly presented to the Court of Appeals and thus, should not

now be decided by this Court. See EEOC v. Federal Labor

Relations Authority, 476 U.S. 19, 24 (1986); G.D. Searle & Co.

v. Cohn, 455 U.S. 404, 412 n.7 (1982).

—

In response, Petitioner Hicks argues that he was unable to file

properly a motion for rehearing because the Civil Rights Act of

1991 had not yet been enacted before the expiration of the filing

period. Petitioner Hicks’ contention, however, further evi-

dences the inappropriateness of this case for review. As of the

expiration date of the period in which to file such petition,

Petitioner Hicks had no proper grounds upon which to base a

petition for rehearing. Hence, it is apparent the rights of the

parties had been fully and fairly adjudicated. Again, only

through abuse of process is Petitioner Hicks able to attempt to

revive this claim, and, in effect, to have this case, which spanned

over ten years, retried in its entirety.

In addition, it is important to note that the fourteen-day

limitation contained in Rule 40, Federal Rules of Appellate

Procedure, is designed, in part, to promote judicial economy/

efficiency, ensure prompt redress, and respect finality of judg-

ments. While Rule 40 permits an enlargement of time by court

order, Petitioner Hicks failed to seek such enlargement, despite

the immense publicity surrounding the “impending” Civil Rights

Actof 1991. Therefore, even assuming arguendo that Petitioner

Hicks should not be denied certiorari due to his failure to file a

properly or timely petition for rehearing, it is certainly relevant

that Petitioner Hicks, despite the incumbence upon him to do so

in light of the publicity surrounding the imminency of the

passage of the Civil Rights Act of 1991, wholly failed to seek an

enlargement of time in which to file his petition pursuant to Rule

40. Petitioner Hicks failed to adhere to either the rules or their

time limitations. Thus, to allow Petitioner Hicks to now, after the

fact, be heard on this issue would render the underlying prin-

ciples behind Rule 40 meaningless.

In summary, Petitioner Hicks failed to file timely or properly

a petition for rehearing in response to the Eighth Circuit’s

October 9, 1991 order, and, in addition, failed to seek an

extension of time in which to do so. Additionally, Petitioner

=.

Hicks’ motion to vacate the October 9 order, in which this issue

initially was raised, was in essence an improperly and untimely

filed petition forrehearing. Accordingly, since this issue was not

properly presented to the Eighth Circuit Court of Appeals, it

would be improvident to grant certiorari herein.

II. The Petition For Certiorari Should Be Denied

Outright Inasmuch As The Civil Rights Act Of

1991 Is Cleariy Prospective In Nature.

The Civil Rights Act of 1991 (Pub. L. No. 102-166) was

approved by Congress on November 7, 1991, and signed into law

by President Bush on November 21, 1991. Section 102(b) of the

Act provides for the recovery of compensatory and punitive

damages; Section 102(c) establishes a right to jury trial. On the

general question of retroactivity, the starting point is Section

402. Section 402 establishes the effective date for the above

provisions:

Sec. 402. EFFECTIVE DATE.

(a) In General. Except-as otherwise specifically pro-

vided, this Act and the amendments made by this Act

shall take effect upon enactment.

(b) Certain Disparate Impact Cases. Notwithstanding any

other provision oy this Act, nothing in this Act shail

apply to any disparate impact case for which a com-

plaint was filed before March 1, 1975, and for which

an initial decision was rendered after October 30,

1983.

The “starting point for interpretation of a statute ‘is the

language of the statute itself. Absent a clearly expressed legis-

lative intention to the contrary, that language must ordinarily be

regarded as conclusive.’ “ Kaiser Aluminum & Chemical Corp.

v. Bonjorno, 110 S. Ct. 1570, 1575 (1990) (quoting Consumer

i

="

Product Safety Comm’ n v. G.T.E. Sylvania, Inc., 447 U.S. 102,

108 (1980)).

Section 402(a) states that “[e]xcept as otherwise specifically

provided, this Act and the amendments made by this Act shall

take effect upon enactment.” The Act is silent as to its retrospec-

tive application. Accordingly, the inquiry can end here. It is a

“familiar canon of statutory construction,” Consumer Product

Safety Commission v.G.T.E .Sylvania Corp., 447 U.S. 102, 180

(1980), that the plain language of a statute must control its

meaning in the absence of “clear evidence” of a “clearly ex-

pressed” congressional intent to the contrary. Bread Political

Action Committee v. Federal Election Commission, 455 U.S.

577, 580 (1982). Yet, Petitioner Hicks is urging courts to read

402(a) as if it contained a qualifying clause: “[e]xcept as

otherwise specifically provided in actions specifying that its

provisions are prospective, this Act and the amendments made

by this Act shall take effective upon enactment and shall apply

to all cases pending upon or filed after that date.” Such urging

clearly is improper.

Even assuming that section 402’s language is not completely

dispositive, the legislative history of the Act establishes, beyond

a doubt, that the Act is not to be applied retrospectively.

A. The Civil Rights Act Of 1991 Act Is Not To

Be Applied Retrospectively.

The Civil Rights Act of 1991 arose in the Senate as S. 1745 and

is backed by a wealth of legislative history clearly demonstrating

that it was never intended to apply retrospectively. A fairreview

of the legislative history compels the conclusion that the Act

does not apply retrospectively.

= _

1. Sponsors’ Interpretative Memorandum.

On October 30, 1991, Senator Danforth, the chief sponsor of

the compromise which led to the Act, submitted the Sponsors’

Interpretative Memorandum regarding S. 1745. The Interpreta-

tive Memorandum was “intended to reflect the intent of all of the

original co-sponsors to S. 1745” and was signed by Senator

Danforth and six others. Prior to printing the Memorandum,

Senator Danforth cited with approval two recent Supreme Court

decisions:

Our intention in drafting the effective date provision was to

adhere to the principle followed by the vast majority of

Supreme Court cases and exemplified by Bowen and Jus-

tice Scalia’s concurrence in Bonjorno.

137 Cong. Rec. S 15483 (daily ed. Oct. 30, 1991).

In explaining what was then denominated as Section 22 (now

Section 402), this Interpretative Memorandum provided as fol-

lows regarding retrospectivity:

The Bill provides that, unless otherwise specified, the

provisions of this legislation shall take effect upon enact-

ment and shall not apply retroactively.

Id. at S 15485 (emphasis added).

No Senator expressed any direct challenge to this relevant

section of the Interpretive Memorandum. In fact, Senator

Kennedy, in his response to the introduction of the Interpretive

Memorandum, did not state that the 1991 Act was to be applied

retrospectively. At most, Senator Kennedy merely abdicated the

responsibility to the judiciary, without stating his intent. /d.

While clearly expressing his divergent views on other issues

raised in the Interpretive Memorandum, he took no clear position

on the issue of retrospectivity, despite the clear and unambigu-

ous views expressed in the Interpretive Memorandum.

—"

Accordingly, the view of prospectivity espoused by Senator

Danforth is of substantial importance. Indeed, “remarks. . . of

the sponsor of the language ultimately enacted, are an authorita-

tive guide to -he statute’s construction.” North Haven Bd. of

Educ. v. Bell, 456 U.S. 512, 526-27 (1987). Further, the

statements of Senator Danforth are “to be accorded substantial

weight,” Federal Energy Adm’n v. Algonquin SNG, Inc., 426

U.S. 548, 564 (1976), inasmuch as “‘it is to the sponsors that we

look when the meaning of the statutory words is in doubt.”

Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384,

394-95 (1981). Clearly, as submitted by Senator Danforth, the

Interpretive Memorandum rejects retrospective application of

the Civil Rights Act of 1991.

2. Section by Section Analysis.

Shortly before Senator Danforth submitted the Interpretative

Memorandum, Senator Dole introduced into the record a Section

by Section Analysis representing the views of President Bush,

together with fourteen additional Senators. The language con-

tained within this analysis regarding Section 402 is one hundred

percent (100%) in accord with that of the Interpretive Memoran-

dum. The analysis submitted by Senator Dole of the effective

date provision states as follows:

Section 22 specifies that the Act and the Amendments made

by the Act take effect upon enactment. Accordingly, they

will not apply to cases arising before the effective date of the

Act. [citing Bowen and Bonjorno}. At the request of the

Senators from Alaska, section 22(b) specifically points out

that nothing in the Act will apply retroactively to the Wards

Cove Packing Company, an Alaska company that spent 24

years defending against a disparate impact challenge.

137 Cong. Rec. S 15478 (daily ed. Oct. 30, 1991) (emphasis

added).

a |

Moreover, President Bush, on signing this Act, stressed that

the administration wouid treat this analysis “as authoritative

interpretive guidance by all officials in the executive branch with

respect to the . .. matters covered in the documents.” Statement

on Signing the Civil Rights Act of 1991,27 Weekly Compilation

of Presidential Documents 1701, 1702 (Nov. 21, 1991). Such

presidential statements are indeed relevant in a court’s interpre-

tation of a statute. See, e.g., United States v. Vogel Fertilizer Co.,

455 U.S. 16, 31-32 (1982) (according “great weight” to execu-

tive views); NLRB v. Local 103, Int'l Ass’ n of Bridge Workers,

434 U.S. 335, 347 n.9 (1978) (presidential transmittal letter).

3. Supreme Court Authority.

Both the Interpretive Memorandum and the Section By Sec-

tion Analysis make it quite clear that the Act is to be interpreted

from a prospective standpoint in accord with Bowen v.

Georgetown University Hospital, 488 U.S. 204, 109 S. Ct. 468

(1988), and the concurring opinion of Justice Scalia in Kaiser

Aluminum & Chemical Corp. v. Bonjorno, 110 S. Ct. 1570

(1990). Bowen clearly held that a new statute should be applied

only prospectively unless there exists specific indication to the

contrary. 109 S. Ct. at 471. In so holding, this Court stated,

“Retroactivity is not favored in the law. Thus, congressional

enactments and administrative rules will not be construed to

have retroactive effect unless their language requires this result.”

Id. (citing Greene v. United States, 376 U.S. 149, 160 (1964);

Claridge Apartments Co. v. Commissioner, 323 U.S. 141, 164

(1944); Miller v. United States, 294 U.S. 435, 439 (1935); United

States v. Magnolia Petroleum Co.,276U.S. 160, 162-63 (1928)).

Thus, the merit of any argument in support of retrospectivity

is wholly dependent upon the current viability of the “principle

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

decision, unless doing so would result in manifest injustice or

there is statutory direction or legislative history to the contrary.”

= som

Bradley v. School Bd. of the City of Richmond, 416 U.S. 696,711

(1974). At a minimum, the continuing viability of Bradley is

subject to question inasmuch as it pre-dates this Court’s most

recent holdings on this issue. Further, in light of Justice Scalia’s

insightful concurrence in Bonjorno, it is more probable than not

that Bradley is simply no longer ‘good law.’ Simply put, recent

decisions of this Court have fashioned a strong presumption

against retrospectivity, overcome only when Congress expressly

declares otherwise. Since there is no express language mandat-

ing retrospectivity, the Civil Rights Act of 1991 clearly is

prospective in nature.

B. The Civil Rights Act Of 1990 And H.R. 1 1991

Provide Further Indicia That The Civil Rights Act

Of 1991 Be Applied Prospectively Only.

Had Congress intended the Act to apply to pending cases,

Congress is quite capable of saying so. Twice in recent months

Congress proposed amendments to Title VII/Section 1981 which

plainly applied retrospectively. The defeat of these amend-

ments, coupled with the legislative history of the Act, amplify

the conclusion that the Act does not apply retrospectively.

1. Civil Rights Act of 1990.

Markedly different than the Civil Rights Act of 1991, the 1990

Act contained very specific language clearly evidencing Con-

gress’ intent that the law apply retrospectively. Section 15 of S.

2104 provided that certain provisions would apply “to all pro-

ceedings pending on or commenced after” the date of the

particular Supreme Court decision being overturned. Moreover,

the section provided for the vacating of orders and the reopening

of cases where orders were inconsistent the new legislation.

President Bush summarily rejected this legislation. Following

the Presidential veto of the Civil Rights Act of 1990, Congress

chose not to incorporate retrospective language into the 1991

=<

Act. The absence of such language constitutes additional evi-

dence of congressional intent: by consciously failing to inject

retrospective language into the Act, it is clear that Congress did

not intend the Civil Rights Act of 1991 to be applied retrospec-

tively.

2. H.R. 1 1991.

Even more persuasive is Congress’ deletion of specific retro-

spective language in H.R. 1, an earlier House version of the 1991

Act. Section 112 of H.R. 1 contained specific language which

provided that the legislation would apply to all proceedings

“pending on or commenced after” the date of the decision being

overturned by the legislation. Section 112 was ultimately

deleted from the bill and replaced with the present Section 402.

Where Congress includes certain language in an earlier version

of legislation, but deletes it prior to enactment, itis presumed that

the former language was not intended. Russell v. United States,

464 U.S. 16 (1983). The deletion of Section 112 from H.R. 1 is

clear and convincing evidence of Congress’ rejection of any

retrospective application of the Civil Rights Act of 1991.

C. The Specific Wards Cove Exemption Of Section

402(b) Does Not Support An Inference Of General

Retrospectivity.

Section 402(b) (Wards Cove exemption) of the Act does not

effect the general prospectivity of the Act. Congress has clearly

expressed its view that the Act not be applied retrospectively,

and has guarded against any implication to the contrary arising

from this specific exemption. In fact, legislative history clearly

demonstrates that this section was inserted only to correct a

technical error. See 137 Cong. Rec. S 15963 (daily ed. Nov. 5,

1991). Senator Dole, with the agreement of Senators Murkowski

and Stevens, introduced the following clear history into the

record:

~~

Absolutely no inference is intended or should be drawn

from the language of [the Wards Cove exemption] that the

provisions of the Act or the amendments it makes may

otherwise apply retroactively to conduct occurring before

the date of enactment of this Act. Such retroactive appli-

cation of the Act and its amendments is not intended; on the

contrary, the intention of [the Wards Cove exemption] is

simply to honor a commitment to eliminate every shadow

of a doubt as to any possibility of retroactive application to

the case involving the Wards Cove Company.

137 Cong. Rec. S 15953 (daily ed. Nov. 5, 1981) (“Legislative

History, Technical Corrections”) (emphasis added).

Other Senators expressing the same view included Senator

Durenberger, id. at 15966 (“Some may attempt to argue ata later

date that a special exemption creates an inference that the bill, in

general, is retroactive. [T]hat is the wrong conclusion to draw

from this [exemption].”); and Senator Simpson. /d. (“By

[exempting Wards Cove], I am in no way implying that all other

companies with litigation pending on the date of enactment

should be treated retroactively.”).

D. The Extraterritoriality Provision Of Section 109(c)

Does Not Support An Inference Of General

Retrospectivity.

Section 109(c) does not negate the general prospectivity of the

Act as expressed in section 402(a). In fact, this Court similarly

has rejected such proposition in United States v. Menasche, 348

U.S. 528 (1955). In Menasche, this Court entertained the issue

of whether there was a conflict between two sections of the

Immigration and Nationality Act of 1952 (INA), 66 Stat. 280.

Specifically, section 405(a) of the INA provided, with language

similar to that contained in section 402 of the Civil Rights Act of

1991, that “nothing contained in this Act, unless otherwise

—

specifically provided therein, shall be construed... .” Another

section of the INA, section 405(b), provided that “except as

otherwise specifically provided in Title II... .” This Court, in

rejecting the argument that section 405(b) negated the general

prospectivity of section 405(a), emphasized that section 405(b)

“merely implement[ed] and emphasiz[ed] the operation of its

forerunner and “the slight negative implication derived . . . is

overcome by the broad sweep of § 405(a) and its direction that

prior law applies unless the Act ‘otherwise specifically

provid[ed].” ” Menasche, 348 U.S. at 527-28 (emphasis omit-

ted). Similarly, the slight negative implication arising from

section 109(c) of the Civil Rights Act of 1991 in no way negates

the general prospectivity of the Act as provided by section

402(a).

E. The EEOC Policy Guidance On Retrospectivity

Of The Civil Rights Act Of 1991 Comports With

The View That The Amendments Not Be

Applied Retrospectively.

In terms of the damages provisions in the Civil Rights Act of

1991, the United States Equal Employment Opportunity Com-

mission has concluded it will not seek damages in charges filed

prior to the enactment of the Act, or in post-Act charges that

challenge pre-Act conduct. The Commission has reasoned that

because Bowen represents this Court’s more recent holding on

the issue of retrospectivity, the Commission will follow the

dictates of that case with regard to the retrospectivity of the

damages provision. Moreover, the Commission has recognized

that a strong argument can be made that, even under Bradley,

“manifest injustice” would occur if the damage provisions were

applied to pre-Act conduct and cases pending upon enactment.

See EEOC Policy Guidance on Retroactivity of Civil Rights Act

of 1991, reprinted in 1 Daily Labor Report D-1 (Jan. 2, 1992), at

n.15 (citing Bess v. Bess, 929 F.2d 1332, 1335-36 (8th Cir. 1991)

—, . pom

(retroactive application of damages provision in Electronic

Communications Privacy Act of 1986 would result in manifest

injustice” since it “could alter the rights of individuals and the

expectation of private litigants”)); see also High v. Broadway

Industries, Inc., No. 90-1066-CV-W-3 (D. Mo. Jan. 7, 1992).

CONCLUSION

For all the foregoing reasons, Respondent herein respectfully

submits that the Petition for a Writ of Certiorari be denied in its

entirety.

Respectfully submitted,

THOMAS M. HANNA*

SHELLEY M. PULLIAM

McMaAHon, BERGER, HANNA,

LINIHAN, Copy & McCAaRTHY

2730 North Ballas Road

Suite 200

St. Louis, Missouri 63131

Telephone: (314) 567-7350

Attorneys for Respondent

* Counsel of Record

EUGENE F. JORDAN

Associate General Counsel

Brown Group, Inc.

P. O. Box 29

8400 Maryland Avenue

St. Louis, Missouri 63166

Telephone: (314) 854-4116

APPENDIX

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APPENDIX A

UNTIED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 85-1392 C (2)

KENNETH G. HICKS,

Plaintiff,

v.

BROWN GROUP, INC., etc.,

Defendant.

ORDER

In accordance with the Order of the United States Court of

Appeals for the Eighth Circuit, filed on October 9, 1991,

IT IS HEREBY ORDERED that the complaint filed in this

action, now on remand, is dismissed with prejudice.

/s/ David D. Noce

UNITED STATES MAGISTRATE

JUDGE

Signed this 28th day of October, 1991.

eX oe

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 88-2769/2817EMSL

Kenneth G. Hicks,

Appellee,

VS.

Brown Group, Inc., d/b/a

Brown Shoe Company, Inc.,

Appellant.

Appeal from the United States District Court

for the Eastern District of Missouri

Appellee’s motion for stay of mandate has been considered by

the court and is granted.

The issuance of mandate in this case shall be stayed to and

including December 30, 1991. If within that time there is filed

with the Clerk of this Court a certificate of the Clerk of the

Supreme Court that a petition for writ of certiorari has been filed,

this stay shall continue until final disposition of the case by that

court.

October 31, 1991

Order Entered at the Direction of the Court:

/s/ Michael E. Gans

Clerk, U. S. Court of Appeals, Eighth Circuit

a en

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

No. 85-1392 C (2)

KENNETH G. HICKS,

Plaintiff,

Vv.

BROWN GROUP, INC., etc.,

Defendant.

ORDER

Consistent with the Order of the United States Court of

Appeals for the Eighth Circuit, filed on October 31, 1991,

IT IS HEREBY ORDERED that the motion of plaintiff to

vacate the Order issued by this Court on October 28, 1991, is

sustained.

/s/ David D. Noce

UNITED STATES MAGISTRATE

JUDGE

Signed this 12th day of November, 1991.