Opposition Brief — Mozee v. American Commercial Marine Service Co.

No. 92-248

IN THE .

Supreme Court of the United States

OCTOBER TERM, 1992

WILLIAM QO. MOZEE, et al.,

y. Petitioners,

AMERICAN COMMERCIAL MARINE SERVICE COMPANY,

Son | Respondent,

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

RESPONDENT'S BRIEF IN OPPOSITION

JAMES S. WHITEHEAD

(Counsel of Record)

SIDLEY & AUSTIN

One First National Plaza

Chicago, IL 60602

(312) 853-7703

JOHN K. GORDINIER

PEDLEY, Ross, ZIELKE

& GORDINIER

455 South Fourth Ave.

Louisville, KY 40202

LISA L. FLEMING

AMERICAN COMMERCIAL MARINE

SERVICE COMPANY

P.O. Box 610

Jeffersonville, IN 47130

September 4, 1992 Counsel for Respondent

_ aie a

WILSON - Epgs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

Whether the court of appeals correctly ruled that the

Civil Rights Act of 1991 does not apply to cases pending

mn appeal on the Act’s effective date?

(i)

|

ii

LIST OF PARTIES

Petitioners have correctly identified all of the parties to

the proceeding in the court below.

Respondent American Commercial Marine Service Com-

pany, Jeffboat Division (formerly Jeffboat, Inc.) is a

wholly owned subsidiary of American Commercial Lines,

Inc. There are no other subsidiaries of American Com-

mercial Lines, Inc. that it does not wholly own.

American Commercial Lines, is a wholly owned sub-

sidiary of CSX Corporation. Other subsidiaries of CSX

Corporation that are not wholly owned by it or by a

wholly owned subsidiary are listed in an appendix to this

brief.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ....... Gecacciedenalainasscenane - i

Ic ceiainsisisbiacetnscds iil

GR Nip yt hy | Se iv

pe ey iy i ge | OF |. | eee 1

a lit ct etl nddiadieniiencanatnceaniiosihassinsieos >

CONCLUSION 5 EBS EOE RT TCS 13

APPENDIX—RELATED PARTIES sacdeciaieadsias la

(iii)

|

1V

TABLE OF AUTHORITIES

CASES Page

Aiken V. Bucks Ass'n for Retarded Citizens, Ine.,

1992 WL 186582 (E.D. Pa. July 14, 1992) 7

Bennett Vv. New Jersey, 470 U.S. 632 (1985) 4,%

Boss Vv. Board of Ed., Union Free School Diat.,

1992 WL 160398 (E.D. N.Y. July 6, i992) 7

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

(1988) 8

Boyce V. Fleet Finance, Inc., 1992 WL 191596

(E.D. Va. July 7, 1992) 7

Bradley Vv. School Board, 416 U.S. 696 (1974) $

Brown V. Anheuser-Busch, Inc., 1992 WL 78065

(D. Colo. Mar. 31, 1992) 7

Bullock Vv. Dillard Dept. Stores, Inc., 1991 WL

167015 (D. Kan. June, 1992) 7

Crumley Vv. Delaware State College, 1992 WL

142243 (D. Del. June 11, 1992) 7

Donaldson V. Brady, 1992 WL 119497 (D. Colo.

May 14, 1992) ........ 7

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

(8th Cir. 1992), petition for vehouring filed,

Nos. 91-2439, 91-2443, and 91-2713 (8th Cir.

Apr. 27, 1992) 6, 1]

Gilmore V. Local 295, Teamsters, 1992 WL 188300

(S.D. N.Y. Aug. 6, 1992) 6

Haynes V. Glen Mills Schools, 1992 WL 97904 (E.D.

Pa. May 6, 1992) ............ 7

Huey V. Sullivan, 1992 WL 181142 (8th Cir. July

30, 1992) .. 6

Jaekel v. Equifax Marketing Decisions Systems,

Inc., 1992 U.S. Dist. LEXIS 9489 (E.D. Va.

Un Is nn eta 7

Johnson V. Railway Express Agency, Ine., 421 U.S.

A I Sess teaag eT 9

Johnson Vv. Uncle Ben's, Inc., 965 F.2d 1363 (5th

Sie: Seek co ee) a araiiosaiens 6, 11

Kelber v. Forest Electric Co rp., 1992 WL 189247

(5 A & | mene 7

King Vv. Tandy Corp., 1992 WL 174289 (M. D. Ga.

Fae I wcacieiedhaedectussamnadietepicubcditventeediailentanniiiis ; 7

Vv

TABLE OF AUTHORITIES—Continued

Konstantopoulos v. Westvaco Corp., 1992 WL

162957 (D. Del. June 19, 1992)

Landgraf Vv. USI Film Products, 1992 WL 17873

(5th Cir. July 30, 1992)

Luddington V4 Indiana Bell Tel. Co., 966 F.2d 225

(7th Cir. 1992), petition for rehearing filed,

No. 91-2320 (7th Cir. July 13, 1992)

Marswell v. Handicapped Educ. & Living Pro-

grams, Inc., 1992 WL 97801 (D. Kan. Apr. 13,

1992)

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

Mozee V. Jeffboat, Inc., 746 F.2d 365 (7th Cir.

1984)

Neibauer V. Philadelphia College of Pharmacy and

Science, 1992 WL 151321 (E.D. Pa. June 19,

1992)

Pagana-Fay Vv. Washington Suburban San. Comm'n,

1992 WL 159904 (D. Md. July 8, 1992)

Parton V. GTE North, Inc., 1992 WL 179687 (th

Cir. July 31, 1992)

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

(1989)

Robinson V. Davis Memorial Goodwill Indus., 790

F. Supp. 325 (D.D.C. 1992)

Rowe V. Sullivan, 967. F.2d 186 (5th Cir. 1992)

Sava Vv. General Electric Co., 789 F. Supp. 78 (D.

Conn. 1992)

Savko v. Port Auth. of Allegheny County, 1992

WL 110466 (W.D. Pa. May 22, 1992)

Sequoia Books, Inc. v. Ingemunson, 901 F.2d 630

(7th Cir. 1990) =

Smith v. Petra Cablevision Corp., 1992 WL 108356

(E.D. N.Y. May 20, 1992)

Stout Vv. International Business Machines, 1992 WL

166846 (S.D. N.Y. July 16, 1992)

Thompson V. Prudential Ins. Co. of America, 1992

WL 140825 (D. N.J. June 23, 1992)

Thorpe V. Housing Auth. of the City of Durham,

2ie MB Be | eee

~

~

oo

vi

TABLE OF AUTHORITIES—Continued

Page

Tyler Vv. Commonwealth of Pa., Dept. of Revenue,

1992 WL 133481 (M.D. Pa. June 4, 1992) .......... 7

Valdez v. Mercy Hosp., 961 F.2d 1401 (8th Cir.

ITED. svavanioncsniehisstiensicbannntiedi demande dcemmeca aaa 6

Virapen V. Eli Lilly, S.A., 1992 WL 150879 (D.

P.R. June 25, 1992) ..... sicaselceaipale capil eae aterm Ate 6

Vogel v. Cincinnati, 959 F.2d 594 (6th Cir. 1992),

petition for cert. filed, No. 91-2001, 60 U.S.L.W.

Oi Se. Tiaras Hk a umNa gy vet Ris 4,6

Wallace Vv. Housing Auth. of the City of Columbia,

791 F. Supp. 187 (D. S.C. 1992) ........... 7

Wards Cove Packing Co. v. Atonio, 490 U. S, 642

CIS kcscoidacl or ccatenuscpssentie adeetenl pitolah cise 3

Wisdom v. Intrepid Sea-Air Museum, 1992 WL

168224 (S.D. N.Y. June 26, 1992) 0.0.0.0... 7

STATUTES AND RULES

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

Ne OG DU. sxsiccscsecocacknsiusendsndubessscceaeneecene passim

Section 701 (b), 42 U.S.C. § 2000e(b) 00... 8

Section 706 (e), 42 U.S.C. § 2000e-5(e) 0000... 9

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

I ER ccchsctuncsusotcininchacsebocuiaettas eek ee ee passim

Ee MR MOONE sakchatenaasint eee 10

RT ETT RRO? NG eat SE 52 7 10

IRINA OPO MAN Cap mE ea 6, 8, 10

I I itr a ee 3

I ee ERE ne ponies Mem or ee 4, 6,10

|) Raa nEne ney Srna eta, Se 4

A RRMA MG NTR ER aa a Re eR ye 4

Section 105 .......... EM re GR sh ARN 4,6,11

I ee 11

SOCtIOM SOB CD) .......--.sccevcesesces etd een ieee 11

S.Ct. Rule 10.1 . Sonibaehaehiniencsencaie alee Eee eae 7

28 U.S.C. § 1292 (b) . desde seichieniaadasaakeraeeicama aap ane 3

42 U.S.C. g INEPT in\ic csddvstinesnacbdnasaiushenakiemnanaeane aaa ee passim

vii

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS

H.R. 1, 102d Cong., 1st Sess. (1991), 187 Cong.

Rec. H 3923 (daily ed. June 5, 1991)

S. 2104, 101st Cong., 2d Sess. (1990), 186 Cong.

Rec. H 9552 (daily ed. Oct. 12, 1990)

Page

11

11

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-248

WILLIAM O. MOZEE, et al.,

y Petitioners,

AMERICAN COMMERCIAL MARINE SERVICE COMPANY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION

Respondent American Commercial Marine Service Com-

pany, Jeffboat Division (“Jeffboat’’),’ hereby opposes the

petition for a writ of certiorari seeking review of the de-

cision of the United States Court of Appeals for the Sev-

enth Circuit in this case.

STATEMENT OF THE CASE

1. Petitioners William O. Mozee, Gregory L. Rankin,

Frederick Williams, and Joe Malone, African-Americans

who were formerly employed by Jeffboat, filed their class

action race discrimination claims under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seg., and

1 At the time this litigation commenced, Respondent’s Jeffboat

Division was separately incorporated as Jeffboat, Inc.

42 U.S.C. $1981 in 1977, alleging that Respondent had

engaged in a pattern and practice of race discrimination

against its African-American employees. The individual

complaint of petitioner Harold Barnes, filed in 1978, was

consolidated with Mozee for trial, which was held over a

four-month period in 1981-82. At the close of the evi-

dence, the district court entered judgment in favor of

Jeffboat and against Petitioners on each of their individ-

ual and class claims.

Petitioners appealed to the Seventh Circuit. The court

of appeals vacated the district court’s judgment and re-

manded for a new trial on the ground that “the findings

of fact made after trial by the district court [are] in-

sufficient to permit meaningful appellate review.” Mozee

V. Jeffboat, Inc., 746 F.2d 365, 367 (7th Cir. 1984).

2. On remand to the district court, the parties sub-

mitted the written record from the first trial as part of

the record to be considered by the court at the second trial.

In addition, the parties presented additional evidence con-

cerning Jeffboat’s pre-1980 employment practices during

the 1986 retrial.

On March 17, 1988, the district court issued its rulings

on liability. The court acknowledged that Jeffboat had

consistently hired African-Americans in greater numbers

than their representation in the surrounding labor market.

It also found that Jeffboat had not discriminated in the

areas of training for higher-rated positions, promotion

from bargaining unit positions to salaried nonunit fore-

man and higher managerial positions, special job assign-

ments, and the assignment of employees to vacant positions

in the bargaining unit in accordance with the seniority

system in the applicable collective bargaining agreement.

However, the court concluded that Plaintiffs had shown

that Jeffboat had violated Title VII and Section 1981 in

the selection of leadmen and gantry crane operators and

in the imposition of discipline for violations of company

rules.

3

Following this Court’s decisions in Patterson v. McLean

Credit Union, 491 U.S. 164 (1989), and Wards Cove

Packing Co. v. Atonio, 490 U.S. 642 (1989), Jeffboat re-

quested reconsideration of certain of the liability findings.

The district court concluded that its findings under Sec-

tion 1981 survived Patterson and also declined to recon-

sider its rulings in light of Wards Cove.

On June 7, 1990, the district court determined the

amounts of back pay to which the named plaintiffs were

entitled under Title VII and Section 1981. Petitioners

Mozee and Barnes, the only two plaintiffs with viable

Section 1981 claims,? were also awarded $5,000 each for

emotional distress. The court deferred consideration of

any class-wide award of punitive damages under Section

1981. The district court then certified its liability orders

for interlocutory review under 28 U.S.C. § 1292(b).

38. On August 14, 1991, the Seventh Circuit reversed

the named plaintiffs’ and the class-wide claims under Sec-

tion 1981 based on Patterson. It affirmed the named

plaintiffs’ individual Title VII claims, and it affirmed the

finding of class-wide liability under Title VII in promo-

tions to the leadman and gantry crane operator positions.

It vacated and remanded the findings of a class-wide Title

VII violation based on Jeffboat’s disciplinary practices.

4. While petitions for rehearing were pending, Con-

gress passed the Civil Rights Act of 1991, Pub. L. No.

102-166, 105 Stat. 1071 (“1991 CRA”). The Act became

effective on November 21, 1991. The court of appeals

asked the parties to brief the issue of the effects, if any,

of the new statute on this case.

On May 7, 1992, the Seventh Circuit issued its decision

on rehearing. Pet. App. la-24a. The court observed that

the plaintiffs had argued that several sections of the 1991

CRA should be applied to this case: (1) Section 101(b),

2 The district court had dismissed the Section 1981 claims of

the remaining named plaintiffs based on the statute of limitations.

4

“which expands the definition of what constitutes the

making and enforcement of a contract for section 1981

claims”; (2) Sections 104 and 105, “which pertain to the

business necessity defense for disparate impact cases un-

der Title VII’; (3) Section 102, “which makes compensa-

tory and punitive damages available for intentional dis-

crimination claims under Title VII.” Pet. App. 3a.*

The court first examined the language of the 1991 CRA

and the legislative history of the 1991 Act. It concluded

that “|a] clear indication of congressional intent cannot

be deciphered from the legislative history or the 1991

Act’s ianguage.”” Pet. App. 8a.

The court then relied upon language in Bennett v. New

Jersey, 470 U.S. 632, 639 (1985), for the proposition that

“statutes affecting substantive rights and liabilities are

presumed to have only prospective effect.” Pet. App. 13a.

Accordingly, the court determined that none of the 1991

CRA’s substantive changes should apply retroactively,

either in the court of appeals or on remand in the district

court. Pet. App. 13a-14a.

The court next considered whether to apply the 1991

Act’s procedural and damages provisions on remand. It °

identified, but declined to decide, the issue of whether

these provisions generally should be applied in a pending

case chailenging preenactment employer conduct where no

proceedings had as yet taken place in the district court.'

3 The court noted that plaintiffs had also referred to Section

102(c), “which pertains to the availability of a jury trial under

Title VII,” but observed that they had apparently conceded that

any right to a jury trial as a result of Section 102(c) had been

waived. Pet. App. 3a & n.1. In their petition to this Court, Pe-

titioners confirm that the availability of a jury trial under Sec-

tion 102(c) of the 1991 CRA is not at issue here. Pet. 5 n.4.

4 The court observed that the Sixth Circuit’s recent decision in

Vogel v. Cincinnati, 959 F.2d 594 (6th Cir. 1992), stood for the

proposition that, because some of the 1991 Act’s provisions affected

5

Instead, the court noted that its earlier decision had af-

firmed in part, reversed in part, and vacated and re-

manded in part the district court’s liability findings. Ac-

cordingly, the remand would not require an entirely new

proceeding. Under these circumstances, the court decided

that it would be confusing and inequitable to apply pro-

cedural and damages changes flowing from the 1991 CRA

to this case on remand. “Considering that the interlocu-

tory remand in Mozee /J will not initiate an entirely new

proceeding, the district court should not apply any of the

1991 Civil Rights Act’s provisions on remand.” Pet. App.

21a.

ARGUMENT

Contrary to Petitioners’ assertions, this does not pre-

sent any issues mertiting review by this Court. The

courts of appeals have uniformly ruled that the 1991 Civil

Rights Act does not apply retroactively to cases pending

on appeal on the date of its enactment. Nor does this case

present an appropriate vehicle for resolving whatever ten-

sion may exist in other contexts and under other statutes

concerning this Court’s decisions on retroactivity; the

courts of appeals have concluded that the 1991 CRA does

not apply to cases pending on appeal on its effective date

regardless of which of this Court’s precedents are fol-

lowed.

In addition, the decision below is correct. The court

properly applied this Court’s decisions and reached a re-

sult consistent with the intent of the 1991 CRA as mani-

fested in both the legislative and executive branches. Fi-

nally, the unique procedural posture of this case makes it

an unsuitable vehicle for determining whether the 1991

CRA applies generally to cases challenging pre-enactment

conduct, even if that general issue otherwise warranted

review by this Court.

substantive rights, the entire act should be applied prospectively and

commented that “[t]his position is not without merit.” Pet. App.

21a.

6

1. As Petitioners acknowledge (Pet. 13-15), every

court of appeals that has considered the effect of the

1991 CRA on cases pending on the Act’s effective date has

° held that the Act does not apply. The Fifth, Sixth, Sev-

enth, and Eighth Circuits all have concluded that the 1991

CRA does not apply retroactively to pending cases.° In

particular, these courts have uniformly determined that

it would be inappropriate to give a retroactive applica-

tion to the three 1991 CRA sections that Petitioners urge

this Court to apply in this case—Sections 101, 102, and

105.

The courts of appeals in the remaining circuits have

not yet addressed the retroactivity of the 1991 CRA.

While some early district court decisions in those circuits

applied the amendments retroactively (see Pet. 15-17),

more recent district court decisions from those circuits,

issued in the wake of the uniform court of appeals rulings

cited above, have found almost universally that the 1991

CRA does not apply to cases pending on the effective date.°

5In addition to the decision below, see Johnson v. Uncle Ben’s,

Inc., 965 F.2d 1363 (5th Cir. 1992); Landgraf v. USI Film Prod-

ucts, 1992 WL 178737 (5th Cir. July 30, 1992); Rowe v. Sullivan,

967 F.2d 186 (5th Cir. 1992); Vogel v. City of Cincinnati, 958 F.2d

594 (6th Cir. 1992), petition for cert. filed, No. 91-2001, 60 U.S.L.W.

3881 (June 11, 1992) ; Luddington v. Indiana Bell Tel. Co., 966 F.2d

225 (7th Cir. 1992), petition for rehearing filed, No. 91-2320 (7th

Cir. July 13, 1992); Fray v. Omaha World Herald Co., 960 F.2d

1370 (8th Cir. 1992), petition for rehearing filed, Nos. 91-2439,

91-2448, and 91-2713 (8th Cir. Apr. 27, 1992); Valdez v. Mercy

Hosp., 961 F.2d 1401 (8th Cir. 1992); Huey v. Sullivan, 1992 WL

181142 (8th Cir. July 30, 1992); Parton v. GTE North, Inc., 1992

WL 179687 (8th Cir. July 31, 1992).

® Cases from other circuits that have relied upon and followed

the uniform court of appeals decisions include:

First Circuit—Virapen v. Eli Lilly, S.A., 1992 WL 150879 (D.

P.R. June 25, 1992).

Second Circuit—Gilmore v. Local 295, Teamsters, 1992 WL

188300 (S.D. N.Y. Aug. 6, 1992); Stout v. International Business

Machines, 1992 WL 166846 (S.D. N.Y. July 16, 1992; Kelber v.

—eeEE

aaa

7

There is no reason to presume that those circuits will not

join the four that have to date found the Act to be prospec-

tive only. If not, however, this Court could review the

issue at that time. S.Ct. Rule 10.1.

2. This case also presents a poor vehicle to resolve any

tension that may exist among different decisions of this

Forest Electric Corp., 1992 WL 189247 (S.D. N.Y. July 7, 1992) ;

Boss v. Board of Ed., Union Free School Dist., 1992 WL 160398

(E.D. N.Y. July 6, 1992): Smith Vv. Petra Cablevision Corp., 1992

WL 108356 (E.D. N.Y. May 20, 1992); Sava v. General Electric

Co., 789 F.Supp. 78 (D. Conn. 1992).

Third Circuit—Aiken v. Bucks Ass’n for Retarded Citizens, Inc.,

1992 WL 186582 (E.D. Pa. July 14, 1992) ; Thompson Vv. Pruden-

tial Inc. Co. of America, 1992 WL 140825 (D. N.J. June 23, 1992) :

Neibauer vy. Philadelphia College of Pharmacy and Science, 1992

WL 151321 (E.D. Pa. June 19, 1992) ; Konstantopoulos v. West-

vaco Corp., 1992 WL 162957 (D. Del. June 19, 1992) ; Crumley v.

Delaware State College, 1992 WL 142243 (D. Del. June 11, 1992);

Haynes Vv. Glen Mills Schools, 1992 WL 97904 (E.D. Pa. May 6,

1992).

Fourth Circuit-— Pagana-Fay _\y. Washington Suburban San.

Comm’n, 1992 WL 159904 (D. Md. July 8, 1992) ; Boyce v. Fleet

Finance, Inc., 1992 WL 191596 (E.D. Va. July 7, 1992) : Wallace v.

Housing Auth. of the City of Columbia, 791 F.Supp. 137 (D. S.C.

1992).

Tenth Circuit—Bullock v. Dillard Dept. Stores, Inc., 1992 WL,

167015 (D. Kan. June 1, 1992); Donaldson v. Brady, 1992 WL

119497 (D. Colo. May 14, 1992) : Maxwell vy. Handicapped Educ. &

Living Programs, Inc., 1992 WL 97801 (D. Kan. Apr. 13, 1992) ;

Brown V. Anheuser-Busch. Inc., 1992 WL 78065 (D. Colo. Mar. 31,

1992).

Eleventh Circuit—King vy. Tandy Corp., 1992 WL 174289 (M.D.

Ga. July 24, 1992).

Contra, Wisdom vy. Intrepid Sea-Air Museum, 1992 WL 168224

(S.D. N.Y. June 26, 1992); Jaekel v. Equifax Marketing Decisions

Systems, Inc., 1992 U.S. Dist. LEXIS 9489 (E.D. Va. June 26,

1992); Tyler v. Commonwealth of Pa., Dept. of Revenue, 1992 WL

133481 (M.D. Pa. June 4, 1992) ; Savko v. Port Auth. of Allegheny

County, 1992 WL 110466 (W.D. Pa. May 22, 1992): Robinson v.

Davis Memorial Goodwill Indus., 790 F.Supp. 325 (D.D.C. 1992).

OO

Court on the general issue of retroactivity. To be sure,

there has on occasion been some confusion among lower

federal courts concerning other federal statutes (see Pet.

8-13). But there have been no such conflicting court of

appeals decisions under the 1991 CRA. The courts of ap-

peals, including the court below, have uniformly ruled

that the 1991 CRA does not apply to cases pending on

appeal on the Act’s effective date regardless of which of

this Court’s decisions are applied. Compare Bennett,

supra, and Bowen v. Georgetown Univ. Hosp. 488 U.S.

204 (1988), with Thorpe v. Housing Auth. of the City of

Durham, 393 U.S. 268 (1968), and Bradley v. School

Board, 416 U.S. 696 (1974).

Accordingly, if some clarification of the general rules

on the application of newly enacted statutes to pending

cases is necessary, it should arise under circumstances

where the courts disagree about the proper approach to

the particular statute at issue. In that way, the clarifica-

tion will affect the outcome of the case.

3. Nor is there merit in Petitioners’ assertions that

the petition should be granted because the decision below

was in error.

No court of appeals has accepted Petitioner’s argument

(Pet. 18) that Section 101 of the 1991 CRA should be

applied retroactively because it merely resulted in the

prohibition of conduct already subject to Title VII. As

Judge Posner demonstrated in writing for the court in

Luddington, Section 101 is clearly substantive, bringing

as it does new forms of employer conduct (e.g., discharges

and refusals to make an ordinary promotion or a lateral

transfer) within the scope of 42 U.S.C. § 1981’s prohibi-

tions. 966 F.2d at 229.7 Moreover, even if the expansion

7 Petitioners are in error when they assert that Section 1981

and Title VII are merely substantive duplicates of each other. Sec-

tion 1981 applies to many employers not covered by Title VII-

those with fewer than 15 employees. See Title VII $701(b), 42

U.S.C. §2000e(b). Moreover, claims under Title VII must be filed

9

of Section 1981’s coverage could be characterized as

merely an enhancement of the remedies available to vic-

tims of employment discrimination, the impact of that

change requires that it be made on a prospective basis

only, as Judge Posner explained:

It could be argued that since the underlying norm

of nondiscrimination was not new, employers should

not be heard to complain that the norm has now been

given teeth. But many of us would squawk very

loudly indeed if people with unpaid parking tickets

were made retroactively liable to life imprisonment;

and in fact such a change although purely remedial

would violate the ex post facto clause. Miller v. Flor-

ida, 482 U.S. 423 (1987); Sequoia Books, Inc. v.

Ingemunson, 901 F.2d 630, 639 (7th Cir. 1990). The

amount of care that individuals and firms take to

avoid subjecting themselves to liability whether civil

or criminal is a function of the severity of the sanc-

tion, 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.

966 F.2d at 229.

For these same reasons, there is no merit to Petitioners’

claim (Pet. 18-19) that the court below erred in not apply-

ing on remand the new provisions for compensatory and

with the Equal Employment Opportunity Commission within at

most 300 days of the challenged employer action. Title VII § 706 (e),

42 U.S.C. § 2000e-5(e). Claims under Section 1981 can be brought

directly to court within a limitations period borrowed from appli-

cable state law (see Johnson v. Railway Express Agency, Inc., 421

U.S. 454, 462 (1975)), which is generally longer than the charge-

filing period under Title VII. Accordingly, employees whose Title

VII claims are barred because they were not pursued in timely

fashion may still be able to pursue claims of violations under Sec-

tion 1981. Under these circumstances, it can hardly be argued that

the 1991 CRA’s expansion of conduct prohibited under Section 1981

did not alter an employer’s substantive obligations or expose an

employer to substantially greater liabilities,

10

punitive damages under Title VII in Section 102 of the

1991 CRA. Subjecting Jeffboat to damages of up to

$300,000 per claimant, in addition to back pay and other

equitable relief, for conduct that occurred nearly 20 years

before the 1991 CRA’s passage would result in manifest

injustice. As the Fifth Circuit explained in Landgraf,

1992 WL 178737, *5, “[t]here is a practical point at

which a dramatic change in the remedial consequences of

a rule works changé in the normative reach of the rule

itself.”

Second, Petitioners err when they assert that the court

below failed to acknowledge that Congress’ intent in en-

acting Section 101 was merely to “restore” the interpre-

tation of Section 1981 that certain lower courts had given

it prior to Patterson. Pet. 18. The express terms of the

1991 CRA belie any such restorative purpose. The con-

gressional “findings” accompanying the 1991 Act refer

in forward-looking terms to the need for “additional rem-

edies” and “additional protections” against unlawful em-

ployment discrimination. 1991 CRA $2 (emphasis

added). Pet. App. 64a. The “purposes” of the Act set

forth in Section 3 are similarly prospective in nature.*®

81991 CRA §3 (Pet. App. 64a-65a) provides (emphasis added) :

The purposes of this Act are—

(1) to provide appropriate remedies for intentional dis-

crimination and unlawful harassment in the workplace;

(2) to codify the concepts of “business necessity” and “job

related’ enunciated by the Supreme Court in Griggs v. Duke

Power Co., 401 U.S. 424 (1971), and in the other Supreme

Court decisions prior to Wards Cove Packing Co. v. Atonio,

490 U.S. 642 (1989) ;

(3) to confirm statutory authority and provide statutory

guidelines for the adjudication of disparate impact suits un-

der title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e

et seq.) ; and

(4) to respond to recent decisions of the Supreme Court by

expanding the scope of relevant civil rights statutes in order

to provide adequate protection to victims of discrimination.

11

Notably absent is any stated purpose to “restore” the

law.®

Finally, as Petitioners acknowledge (Pet. 20 n.16),

every court of appeals has rejected their argument that

the plain language of the 1991 CRA establishes that it

must be retroactively applied. No court of appeals has

found that the inclusion of the special provision in Sec-

tion 402(b), negating any possible retroactive application

to the Wards Cove Packing Company of the new burdens

of persuasion in 1991 CRA $105, or Section 109(c),

which ensures that the new imposition of liability on

employers for extraterritorial conduct does not apply

retroactively, establishes that it was Congress’ intent that

the Act as a whole applies to pending cases. See Fray,

960 F.2d at 1376-77; Johnson, 965 F.2d at 1373; Mozee,

Pet. App. 5a-7a.

4. Finally, the instant case would be a poor vehicle

for resolving the general issue of the impact of the 1991

CRA on pre-enactment employer conduct. The vast ma-

jority of cases in which this issue will arise are ones

®In marked contrast, the 1990 Civil Rights Act, a precursor to

the 1991 CRA that was vetoed by President Bush, contained an

express statement of Congress’ restorative purpose. The first stated

purpose of the 1990 Act was to “respond to the Supreme Court’s

recent decisions by restoring the civil rights protections that were

dramatically limited by those decisions. . . .” S. 2104, § 2(b)(1),

101st Cong., 2d Sess. (1990), 136 Cong. Rec. H 9552 (daily ed. Oct.

12, 1990) (emphasis added). The civil rights bill that passed the

House of Representatives early in the summer of 1991 contained

an identical statement of congressional purpose. H.R. 1, § 2(b)(1),

102d Cong., 1st Sess. (1991), 137 Cong. Rec. H 3923 (daily ed.

June 5, 1991). Consistent with such a purpose, both the 1990 Act

and 1991’s H.R. 1 were by their terms expressly retroactive and

would have applied to pending cases, S. 2104, §15(a), 101st Cong.,

2d Sess. (1990), 186 Cong. Rec. H 9552 (daily ed. Oct. 12, 1990);

H.R. 1, § 15(a), 102d Cong., 1st Sess. (1991), 187 Cong. Rec. H 3923

(daily ed. June 5, 1991). When the Civil Rights Act of 1991 was

passed, all references to “restorative” intent, like the provisions for

express retroactivity, were deleted.

12

that were pending in the trial courts awaiting adjudica-

tion on the date of enactment or that will have been

filed since November 21, 1991, but that challenge pre-

enactment employment actions. Relatively few cases were,

like the instant case, pending on appeal on the enactment

date, and this special class of cases will soon have left

the judicial system.

Moreover, this case was filed in 1977, had already been

through two full trials on liability, and was pending before

the court of appeals on an interlocutory appeal from all

liability findings on the effective date of the new Act.

The evidence presented by Petitioners at both the firs

and second trials largely centered on Respondent’s em-

ployment practices during the latter half of the 1970’s,

nearly two decades before the 1991 Act’s passage. In

its August 14, 1991, initial opinion, the court below dis-

posed of virtually all of the liability issues, leaving the

district court only to reconsider its findings on classwide

disciplinary claims under Title VII (and to take addi-

tional evidence on this one issue if the court sees fit).

Under these special circumstances, the court below

properly applied equity and justice in its determination

that Respondent not be subjected to new substantive rules

and unanticipated new liabilities years after the fact. As

Judge Wood explained for the court:

We must remember that this case has been in litiga-

tion for fifteen years. A remand under a new statute

after fifteen years of litigation seems anything but

just.

Pet. App. 17a-18a n.4.

13

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

JAMES S. WHITEHEAD

(Counsel of Record)

SIDLEY & AUSTIN

One First National Plaza

Chicago, IL 60603

(312) 853-7703

JOHN K. GORDINIER

PEDLEY, Ross, ZIELKE

& GORDINIER

455 South Fourth Ave.

Louisville, KY 40202

LIsA L. FLEMING

AMERICAN COMMERCIAL MARINE

SERVICE COMPANY

P.O. Box 610

Jeffersonville, IN 47130

September 4, 1992 Counsel for Respondent

la

APPENDIX

RELATED PARTIES

The subsidiaries of CSX Corporation that are not wholly

owned by it or by a wholly owned subsidiary are:

Akron and Barberton Belt Railroad Company

Akron Union Passenger Depot Company

Allegheny and Western Railway Company

Augusta and Summerville Railroad Company

Baltimore and Cumberland Valley Rail Road

Extension Company

Baronial Transportation Corporation

Beaver Street Tower Company

Belt Railway Company of Chicago

Central Florida Pipeline Corporation -

Central Rail Road Company of South Carolina

Central Transfer Railway and Storage Company

Chatham Terminal Company

Chicago and Western Indiana Railroad Company

Clearfield and Mahoning Railway Company

Cleveland Terminal & Valley Railroad Company

Dayton and Michigan Railroad Company

Dayton and Union Railroad Company

Green Real Estate Company

Home Avenue Railroad Company

Lakefront Dock and Railroad Terminal Company

Mid Allegheny Corporation

Nicholas, Fayette and Greenbrier Railroad Company

Norfolk and Portsmouth Belt Line Railroad Company

North Charleston Terminal Company

Paducah & Illinois Railroad Company

Richmond-Washington Company

RF&P Corporation

Terminal Railroad Association of St. Louis

Trailer Train Company

Wesjax Development Company

Winston-Salem Southbound Railway Company

Woodstock & Blocton Railway Company

Yukon Pacific Corporation