Petition for Writ of Certiorari — Luddington v. Indiana Bell Telephone Co.

No.

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

GEORGE LUDDINGTON,

Petitioner,

V e

INDIANA BELL TELEPHONE CO.

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

*John Moss, Jr.

156 E. Market, #200

Indianapolis, IN 46204

(317) 635-1945

*Counsel of Record for

Petitioner

No.

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

GEORGE LUDDINGTON,

Petitioner,

Ve

INDIANA BELL TELEPHONE CO.

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

*John Moss, Jr.

156 E. Market, #200

Indianapolis, IN 46204

(317) 635-1945

*Counsel of Record for

Petitioner

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Civil Rights Act

of 1991, 42 U.S.C. §1981 as amended,

applies to cases which were pending,

before the United States Courts of Ap-

peals, but undecided, on the effective

date of said Civil Rights Act, which

cases were filed in the United States

District Courts before June 15, 1989,

the date on which this Court decided

the case of Patterson v. McClean Credit

Union, 491 U.S. 164, 109 S.Ct. 2363

(1989).

2. Whether Congress intended that

certain portions of the Civil Rights

Act of 1991 apply to cases that were

pending and on-going when said Act be-

came effective, particularly in light

of Sections 109(c) and 402(b) of the

Civil Rights Act of 1991.

(i)

3. Whether the Civil Rights Act

of 1991, was intended as a curative act

of the judicial interpretations placed

on 42 U.S.C. §1981 and as such is ret-

roactive.

er ge ee

PARTIES BELOW

The party Plaintiff below is Peti-

tioner herein who is the named Plain-

tiff. Respondent was the satuaden’ be-

low. The Appeal to the Seventh Cir-

cuit, and this Petition were filed on

behalf of the named Plaintiff.

(ii)

Bids

i ai hm CC

TABLE OF CONTENTS

Questions Presented For hevhew... «0 i

POECLOS BOAGWecccncecssescocsesvecses Af

ZOBDLO GE AVENOCICLES cc cccccccssece i1iii

OPINIONS BELOW. cccccccccscasececsesccs 2

SUR EREAOCAOR nce ccecccscececenscessess 3

STSCuUtes TNVOLVEG .cccccccccccses eves 3

Statement of the Case......... esoes Se]

Reasons for Granting the Writ:.... 7-ll

THERE IS A CONFLICT AMONG

HOLDINGS OF THE JUDICIAL

CIRCUITS ON THE QUESTION

OF WHETHER OR NOT THE CIVIL

RIGHTS ACT OF 1991 APPLIES

TO CASES THAT WERE PENDING

AND ON GOING ON THE DATE THAT

SAID ACT BECAME EFFECTIVE.

SAID CONFLICT AMONG THE

JUDICIAL CIRCUITS ON THE

VITAL QUESTION OF NATIONAL

CONCERN MUST BE RESOLVED BY

THIS COURT.

TO CONFIRM THAT CONGRESS

INTENDED THE CIVIL RIGHTS

ACT TO APPLY TO CASES

PENDING AND ON GOING ON

THE EFFECTIVE DATE OF SAID

ACT.

TO CONFIRM THAT THE CIVIL

RIGHTS ACT OF 1991 CURES ANY

DEFECT IN, OR ANY UNACCEPTABLE JUDI-

(iii)

I TE Eee

CIAL INTERPRETATION

PLACED ON 42 U.S.C. §1981.

ATGUMENE Sc ccccccccccccccsccccccclli Zh \

1A: The Civil Rights Act of

1991 including 42 U.S.C.

§1981 as amended, was |

intended to apply to un-

decided cases pending in

Court, upon the effective

date of said Act.

1B: The Civil Rights Act of

1991 was intended to over-

rule Patterson v. McClean

Credit Union, 491 U.S. 164,

109 S.Ct. 2363 (1989.

1C: The United States Courts

had jurisdiction over the

Petitioner's 42 U.S.C.

§1981 claims:

a. before Patterson, supra,

was decided; and

b. after Patterson, supra,

was overruled.

1D: The United States Congress

intended for the Civil Rights

Act of 1991 to have immediate

application to all cases

pending in Court, and on-going,

when said Act became effective.

Ee er

Appendix:

Opinion of the Court of Appeals....la

June 15, 1992

Judgment of Court of Appeals...... 10a

September 4, 1992, Denying

Petition for Rehearing, with

Suggestion of Rehearing

En Banc

Judgment of U.S. District Court...lla

Granting Summary Judgment in

Favor of Defendant

The Civil Rights Act of 1991,..... l2a

Pub.L. No. 102-166, 105 Stat. 1071

(relevant provisions )

Section 1977 of the Revised....... l2a

Statues, 42 U.S.C. §1981

(1988 )

TABLE OF AUTHORITIES

Cases: Page:

Davis v. City & County of San. 8,10,

Francisco (No. 91-15113) i1,135,16

(Sth Cir., Oct. 6, 1992)

Fray V. Omaha World Hearld Co..... 8

960 F.2d 1370 (8th Cir. 1992)

Johnson v. Uncle Ben's Inc....... 8

1, 1992)

Luddington v. Indiana Bell....... 2

966 F.2d 225 (7th Cir. 1992)

McFaddin v. Evans-Snider Buel 22

(1901 US S.Ct.) 185 US 505,

34a, fas

PR SE) 8 re 12

(US S.Ct. 1902) 183 US 43

Mozee v. American Commerical..... 8

Marine Service Co., 963 F.2d 929

(7th Cir.1992)

Patterson v. McClean Credit Union 14,15

109 S.Ct. 2363 (1989) 16,25

Rowlett v Anheuser Busch, Inc. 18,19

832 F.2d 194 (lst Cir. 1987)

Sharpless v Mayor of Philadelphia. 12

(S.Ct.PA 1853) found at 21 PA

147 59 Am.Dec. 759

es Sn 1 CM cca cece esecensccads ae

(iiii)

™ NO Ae OMNI TR,

ean is

206 US 370, 387

Vogel v. City of Cincinnati......

959 F.2d 594 (6th Cir. 1992)

Williamson v. Handy Button ......

Machine Co. 817 F.2d 1290

(7th Cir. 1987)

Wilmington v. J.I. Case Co.......-.

793 F.2d 909 (8th Cir. 1986)

Statutes:

28 U.S.C. S$lLS94( Lp) ccccccccce

Civil Rights Act 1991...........

42 U.S.C. §1981

\

Meier mien -

E———————

No.

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1992

GEORGE LUDDINGTON,

Petitioner,

Ve

INDIANA BELL TELEPHONE CO.

Respondent.

PETITION FOR WRIT OF CERTIORARI

Petitioner, George Luddington,

respectively prays that a writ of

certiorari issue to review the judgment

and opinion of the United States Court

of Appeals for the Seventh Circuit en-

tered in this proceeding on June l5,

1992.

Se ae tana ee

es

OPINIONS BELOW

The opinion of the United

States Court of Appeals for the Seventh

Circuit holding that the 1991 Civil

Rights Act does not apply to this case

is reported Luddington v. Indiana Bell

Telephone Co., 966 F.2d 225, (7th Cir.

1992). The opinion is reproduced

starting at page A-l of the Appendix.

The United States District

Court, Southern District of Indiana,

Indianapolis Division, entered Memoran-

dum Decisions. On April 23, 1990, the

Court granted in part, and denied in

Part Defendant's Motion for Summary

Judgment. On February l, 1991, the

Court granted Defendant Summary Judg-

ment. On May 10, 1991, the Court de-

nied Plaintiff's Motion for a New

Trial.

EE EOE eeEOoO

3

JURISDICTION

This Court has jurisdiction

Over this case under 28 U.S.C.

§1254(1). The final judgment of the

Court of Appeals was entered on Septem-

ber 4, 1992. This petition is pre-

sented within ninety (90) days from

said final decision and invokes this

Court's jurisdiction under 28 U.S.C.

§1254(1).

STATUTES INVOLVED

Pertinent portions of the Civil

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

105 Stat-1071 pet app-pp-to Sect.1977

of the Revised Statutes 42 U.S.C. §1981

is reproduced at appendix pages

STATEMENT OF THE CASE

Background: The Petitioner's

complaint in this case, filed November

4, 1986, alleged that Respondent en-

gaged in discrimination against him in

ee

4

employment, by (1)denying Petitioner

promotions, (2) racial harassment, (3)

and disparate treatment, because of Pe-

titioner's race and because of Peti-

tioners (i) prior EEO complaints

against Respondent, and (ii) prior em-

ployment discrimination law suits filed

against the Respondent.

Petitioner was employed by Re-

spondent on the 28th day of January,

1966. He was paid on an hourly basis

and classified as a craftsman. Peti-

tioner's progress was noted as his job

performance was consistently good to

excellent. During his employment with

Respondent, Petitioner obtained a BS

degree from Purdue University in

Engineering--Computer Science. Peti-

tioner's applications for promotions to

management-supervisory jobs were all

denied. After Petitioner filed an em-

ployment discrimination suit based on

race for denying promotions to him in

1979 in the United States District

Court, Southern District of Indiana,

Indianapolis Division, Petitioner was

promoted to a level (1) supervisory po-

Sition. Petitioner has not been pro-

moted since that time.

In 1984, Petitioner was admit-

ted to practice law in the State of In-

diana, after graduating from Indiana

School of Law, Indianapolis Division.

Between the years 1980-1986,

Petitioner filed numerable applications

for job promotions, no job promotion

was awarded to Petitioner. Although

Respondent Caucasian employees, who had

less job experience and ability, and

whose job performance appraisals and

promotability grades were below Peti-

tioner, were promoted; in addition

en

6

thereto, Respondent employees who had

not protested Respondent's discrimina-

tory practices based on race and re-

taliation, received job promotions

preferable to Petitioner.

On the 23rd day of April, 1990,

the Respondent's Motion for a Summary

Judgment was granted in part and denied

in part, the trial Judge held that with

respect to certain "jobs", there were

material issues of fact remaining for

trial as to whether Respondent had dis-

criminated against Petitioner in promo-

tion. Respondent filed a Motion to Re-

consider ruling on Motion for Summary

Judgment.

On the lst day of February,

1991, the Trial Judge reconsidered its

prior Summary Judgment Ruling and

granted summary judgment in Respon-

dent's favor and dismissed Petitioner's

7

complaint. While this case was pending

and on going before the Court of Ap-

peals, the Congress passed and the

President signed into law the Civil

Rights Act of 1991. On June 15, 1992,

the Court of Appeals for the Seventh

Circuit affirmed the Trial Court's rul-

ing and in doing so held that the Civil

Rights Act of 1991 does not apply to

this case.

Petitioner filed a Petition for

Rehearing with suggestion of rehearing

en banc. On September 4, 1992, the

Court of Appeals denied said Petition

for rehearing.

REASONS FOR GRANTING THE WRIT

There is a conflict among Hold-

ings of the Judicial Circuits on the

question "Does the Civil Rights Act of

1991 apply to cases that were pending

and on going on the date that said Act

became effective.

The Fifth Circuit in Johnson v.

Uncle Ben's Inc. No. 91-2590 (5th Cir.

July 1, 1992); the Sixth Circuit in

Vogel v. City of Cincinnati, 959 F.2d

594 (6th Cir. 1992); the Seventh Cir-

cuit in Mozee v. American Commercial

Marine Service Co., 963 F.2d 929 (7th

Cir.1992), one Judge dissenting; the

Eighth Circuit in Fray v. Omaha World

Herald Company, 960 F.2d 1370 (8th Cir.

1992), all held that the 1991 Civil

Rights Act does not apply to cases that

were pending and on going on the date

that said act became effective. The

Ninth Circuit in Davis v. City & County

of San Francisco (No. 91-15113) (9th

Cir., Oct. 6, 1992) held that the Civil

Rights Act of 1991 applies to litiga-

tion that was pending and on going on

the effective date of said act. Said

a en wes

Court held that:

"...-the language of the act

reveals Congress' clear .

intention that the majority

of the Act's provisions be

applied to cases pending at

the time of its passage."

The Ninth Circuit went on to say:

"Section 402(a) of the new

law states that '[e]xcept as

otherwise specifically pro-

vided, this Act and the amend-

ments made by this Act shall

take effect upon enactment.”

By itself, this language does ;

not determine whether the Act ;

applies to ongoing cases, though

it does give at least ‘some

indication that [Congress]

believed that application of

{the Act's] provisions was

urgent.' However, two other

sections of the Act reveal

Congress' intent that the :

Act generally apply to pending

litigation.

CLO EEDA HOM 3

Section 109(c) of the Act states

that its extension of Title

VII's protections to United

States citizens working for

American companies overseas

‘shall not apply with respect to

conduct occurring before the

date of the enactment of this

Act.' Section 402(b) declares,

furthermore, that ‘nothing in

this Act shall apply to any

disparate impact case for which

10

a complaint was filed before

March 1, 1975, and for which an

initial decision was rendered

after October 30, 1983.

These directives from Congress

that in two specific instances

the Act not be applied to cases

having to do with pre-Act con-

duct provide strong evidence of

Congress' intent that the courts

treat other provisions of the

Act as relevant to such cases.

'{W)here Congress includes par-

ticular language in one section

of a statute but omits it in an-

other section of the same Act,

it is generally presumed that

Congress acts intentionally and

purposely in the disparate in-

clusion or exclusion.” (cita-

tions omitted)

The conflict among the Judicial

Circuits on the vital question of na-

tional concern must be resolved by this

Court.

The Ninth Circuit case, Davis,

supra, is the best reasoned case. It

finds congressional intent that the

1991 Civil Rights Act apply to “cases

pending” when said act became effective

from the Act itself in the light of

’

long standing rules of statutory con- |

struction.

The above cited cases that are

in conflict with Davis case supra, as

pointed out in Davis, supra, either ig-

nore, or show varying degrees of the

lack of concern for the Significance of

Sections 109(c) and 402(b); and Rules

of Statutory Construction are improp-

erly applied.

The Civil Rights Act of 1991

cures any defects or unacceptable judi-

cial interpretations placed on 42

U.S.C. §1981.

ARGUMENT

OS" AR ARRITZ FT RO RR mm RRR Co he SERRE RE mr Ne a a om

nie

The decision of the Court of Ap-

peals of June 15, 1992, is erroneous in

that it is based on said Court of Ap-

peals speculation that, slip Op. pg.3:

"President Bush would probably

have vetoed a statute that

contained an express pro-

vision for retroactivity”...

but the Democratic majority in both

houses would equally have 'vetoed'

an express provision for

12

prospective application."

Either statement may or may not be

true, we do not know. (slip op- pg 5 )

However, the statement leaves us in the

political thicket. Judicial specula-

tion over the wisdom of legislation may

not serve as the basis for a4 judicial

decision interpreting a statute.

Courts do not have the power

and are not at liberty to determine the

wisdom of a statute. Certainly then,

no judicial decision should be based on

what a Judge thinks that a legislature

may have done, or may not have done, so

long as the legislation is constitu-

tional. The judiciary does not have

the power to interfere with legislative

functions. See McHard v. Louisville,

(US S.Ct. 1902) 183 US 43; also see

Sharpless v Mayor of Philadelphia,

(S.Ct. PA.1853) found at 21 PA 147, 59

—— ‘i

13

Am.Dec. 759.

The Court of Appeals statement

that the decisions of the Supreme Court are

in irreconcilable conflict on the

question of whether a statute applies

to cases pending on the effective date

of the statute is not controlling.

Congress expressed the clear intent

that the 1991 Civil Rights Act apply to

pending and on-going cases. Therefore,

it is not necessary to resolve any con-

flict which may exist among decisions

of this Court on said subject in order

to determine congress-ional intent on

the subject of the application of the

Civil Rights Act of 1991, to cases

that were pending on the date of said

act.

The Court of Appeals appeared

to reason that the Civil Rights Act of

1991 should have only prospective ap-

—

12 VOR RTRRR IP MERINO ARCO ern re

oo ee

a ence ee

14

plication because the Defendant should

not be subjected to a civil penalty for

conduct that they had no reason to

think unlawful is erroneous. Long be-

fore the passage of the Civil Rights

Act of 1991, the Federal Statutes 42

U.S.C. §2000(e) et seq., and 42 U.S.C.

§1981 and 42 U.S.C. §1983, made it un-

lawful to discriminate in employment

practices against specified classes of

people, including members of the black

race.

The Court of Appeals recognizes

(slip op. pg.6) that..."the 1991 Civil

Rights Statute ‘overruled’

Patterson...other decisions that..-«

congress believed had misinterpreted 42

U.S.C. §1981."

The Court of Appeals decision

holds that 42 U.S.C. §1981, as amended

by 1991 Civil Rights Act, should not be

15

applied retroactively because of the

severity of the Civil penalty imposed

by the 1991 Act. Said argument is er-

roneous, the amount of the possible

damage award is not increased. Even

during the brief period of Patterson,

Supra, an employer who discriminated in

violation of 42 U.S.C. §1981 was ex-

posed to general damages.

The instant case is anogalous

to the Davis v. San Fransico, supra

case, in the following respect:

a. The instant case was filed

when this Court's ruling decisions held

that 42 U.S.C. §1981 provided relief

for all forms of employment discrimina-

tion based on race.

b. The Supreme Court subse-

quently handed down Patterson v.

McClean, supra, in which said Court

limited the application of 42 U.S.C.

16

§198l1 to pre-contract employment deci-

sions based on race.

c. Then Congress passed the

Civil Rights Act of 1991, which over-

ruled the Supreme Court's ruling in

Patterson, supora.

In Davis v. San Fransico, supra, the

matter of the application of the Civil

Rights Act thereto evolved as follows:

In the instant case, the Court

| of Appeals for the Seventh Circuit

erred by holding that the 1991 Civil

Rights Act is not retroactive because

said 1991 Act reflects policy and poli-

tics. The Court of Appeals said at

page 6 of the Slip Opinion, as follows:

"The new civil rights act

reflects contemporary policy

and politics, rather than

a dispute between Congress

and the Supreme Court over

the mechanics of inter-

pretation."

The Court of Appeals erred in

17

its reasoning that the 1991 Civil

Rights Act is not retroactive because

it would increase the liability of the

employer who violates the law by dis-

criminating against certain protected

classes of employees. This is not so.

The 1991 Civil Rights Act, §1977A Dam-

ages in cases of Intentional Discrimi-

nation in Employment, (b) compensatory

and punitive damages (3) limitations,

A-D, states as follows:

"(a)Right of Recovery--(1) Civil

Rights--In an action brought by a

complaining party under section

706 or 717 of the Civil Rights

Act of 1964 (42 U.S.C. 2000e-

53).--(3) Limitations--The sum of

the amount of compensatory dam-

ages awarded under this section

for future pecuniary

losses...shall not exceed, for

each complaint party:

(A) in the case of a respondent

who has more than 14 and fewer

than 101 employees in each of 20

or more calendar weeks in the

current or preceding calendar

year, $50,000;

(B) in the case of a respondent

who has more than 100 and fewer

than 201 employees in each of 20

i a i al man ae a ae |

| 18

or more calendar weeks in the

current or preceding calendar

year $100,000; and

(C) in the case of a respondent

who has more than 200 and fewer

than 501 employees in each of 20

or more calendar weeks in the

current or preceding calendar

year, $200,000; and

(D) in the case of a respondent

who has more than 500 employees

in each of 20 or more calendar

weeks in the current or preceding

calendar year $300,000."

The 1991 Civil Rights Act

placed a ceiling on the amount of puni-

tive damages and compensatory damages

recovered under 42 U.S.C. §2000e(2),

§2000e(3), et seq. However, prior to

the passage of the Civil Rights Act of

1991, no ceiling was placed on the

amount of punitive or compensatory dam-

ages that were available to an employee

who had been the victim of discrimina-

tion in employment, in violation of 42

U.S.C. §1981.

In the case of Rowlett v.

Se

19

Anheuser Busch, Inc., 832 F.2d 194 (lst

Cir. 1987), a case brought pursuant to

42 U.S.C. §1981, the Jury awarded

$3,000,000.00 in damages to a single

Plaintiff. (remitter ordered)

In the case of Williamson v.

Handy Button Machine Co., 817 F.2d 1290

(7th Cir. 1987), a case brought pursu-

ant to 42 u.S.C. §1981, the Jury

awarded $150,000.00 in compensatory

damages and $100,000.00 in punitive

damages to a single Plaintiff (peti-

tioner could not determine the number

of persons employed by employer from

reading said case.)

In the case of Wilmington v.

J.I. Case Co., 793 F.2d 909 (Sth Cir.

1986), the Jury awarded $400,000.00 in

in punitive damages.

Obviously, the portion of the

Civil Rights Act of 1991, which appears

20

to limit damage exposure of the dis-

criminating employer, is a benefit to

said employer. This limit on liability

may be likened to a situation in which

a State passes an act which makes the

imposition of the death penalty unlaw-

ful upon persons who had committed

crimes that theretofore allowed the im-

position of the death penalty.

The Court of Appeals, for the

Seventh Circuit, argument (p.5, slip

op.) that the 1991 Civil Rights Act

should not be applied to cases pending

when said act became effective because

of the effect that such application

would have is a matter for legislative

wisdom and is beyond the scope of said

Court's legitimate sphere of concern.

This argument is not correct, by said

argument, the Court wanders again into

the legislative political thicket which

21

is “off-limits for the Judiciary"; it

second guesses the wisdom of the legis-

lature. Also, it tends to question the

power of the legislature. Clearly, the

Congress had the power to pass the 1991

Civil Rights Act. Also, Congress ex-~

pressed it's intent within the contours

of said act, that said act apply to

cases which were pending and "on-going"

at the time said act became effective.

As a part of said act, Congress found

that additional remedies are needed to

deter unlawful harassment and inten-

tional discrimination in the work

place. Civil Rights Act, §2(1). Con-

gress stated that legislation is neces-

sary to provide additional protection

against unlawful harassment and dis-

crimination, Civil Rights Act, Section

2(3). The Court stated that the pur-

pose of said act was to provide appro-

22

priate remedies for intentional discrimi-

nation and unlawful harassment in the

work place. CRA, Section (1)...§3(4)to

respond to recent decisions of the Su-

preme Court by expanding the scope of

relevant civil rights statutes in order

to provide adequate protection to victims

of discrimination. With the Civil Rights

Act of 1991, Congress expressed and pre-

sented the need and intended that the act

apply to cases that were pending on the

effective date thereon. Also, Sections

109(c) and 402(b), further confirm Con-

gress' intent that certain portions of

said act apply to cases which were pend-

ing on the effective date thereof.

In McFaddin v. Evans-Snider Buel

Co., (1901 US S.Ct.) 185 US 505, 513,

913, in response to an argument Opposing

Congress’ power to pass retrospective

laws, this Court stated at page 512, 513:

23

But we are of opinion that these

objections are not well

founded...What obstacle was in the

way of legislation to supply the

omission to make provision for such

cases in the original act? If it

comes within the category of retro-

spective legislation, as has been

argued, we find nothing in the Con-

stitution limiting the power of

Congress to amend or correct omis-

sions in previous acts. It is well

settled that where there is no di-

rect con-stitutional prohibition, a

State may pass retrospective laws,

such as, in their operation, may

affect suits pending, and give to a

party a remedy which he did not

previously possess, or modify an

existing remedy, or remove an im-

pediment in the way of legal pro-

ceedings. . . . Such acts are of a

remedial nature, and are the pecu-

liar subject of legislation. They

are not liable to the imputation of

being assumptions of judicial

power.

The power of a legislature to pass

laws giving validity to past deeds

which were before ineffectual is

well settled."

Moreover, Congress has the power

to pass legislation which cures any lack

or irregularity or impotence in statutes

that are then on the books. U.S. v.

Heinszen & Co., 206 US 370, 387. The

j

4

;

24

Civil Rights Act of 1991 is a curative

Statute to 42 U.S.C. §1981 and as such,

said Civil Rights Act applies to cases

that were pending at the time said Act

was passed. As stated in the Heinszen

case supra, at page 387:

"Nor is it important in any of the

cases to which cures the irregular-

ity, defect or want of original

authority, was passed after suit

brought, in which such irregularity

or defect became matter of impor-

tance. The bringing of suits

vests in a party no right to a par-

ticular decision; and his case must

be determined on the law as it

stands, not when the suit was

brought, but when the judgment is

rendered." (citations omitted)

CONCLUSION

In conclusion, this Court should

grant this Petition and issue a Writ to

the United States Court of Appeals for

the Seventh Circuit directing it to enter

judgment that the Civil Rights Act of

25

1991 applies to this case, which was :

filed prior to June 15, 1989, the date of

this Court's decision in Patterson v.

McClean Credit Union, 109 S.Ct. 2363

(1989), which was pending and on-going on

the date that the Civil Rights Act of

1991 became effective; and further, di-

rect said Court to overrule the District

Court's grant of Summary Judgment and re-

turn this case to the United States Dis-

trict Court fo ial.

ctf y submitted:

“Moss , Jr. vi

Attorney for Petition

156 E. Market, #200

Indianapolis, IN 46204

(317) 635-1945

| 3n the

United States Court of Appeals

For the Seventh Circuit

No. 91-2320

GEORGE J. LUDDINGTON,

Plaintiff-Appellant,

Vv.

INDIANA BELL TELEPHONE COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 86 C 1295—John D. Tinder, Judge.

ARGUED APRIL 6, 1992—Decipep June 15, 1992

Before PosNER and KANNE Circuit Judges, and BURNS,

Senior District Judge.*

POSNER, Circuit Judge. George Luddington has been

employed by Indiana Bell since 1966. In 1979 he moved

out of the worker ranks and into a bottom-rung m

ment position, where he has been stuck ever since.

tween 1982 and 1984 he applied for at least 35 other posi-

tions—most higher, some not—with the company. Turned

down every time, in 1986 he filed this suit, which c

that every turndown precipitated four distinct statutory

* Hon. James M. Burns of the District of Oregon, sitting by

designation.

2 No. 91-2320

the only other courts of +r to have decided it, Vogel

; City of Cincinnati, 959 F 2d 594, 597-98 (6th Cir. 1992);

an open question in this circuit, rather than, as we would

ordinarily do, dispose of it with a citation to our recent

a new employment relation. The decision, applied as deci-

sions normally (perhaps, after James B. Beam Distilling

Co. v. Georgia, 111 S. Ct. 2439 (1991), always) are to pend-

ing as well as to new cases, wiped out many of Ludding-

ton’s claims. The new civil rights act makes section 198]

expressly applicable to all racial discrimination in a con-

tractual relation. 42 U.S.C. § 1981(b). If, as Luddington

A statute could be applied (1) to cases filed and completed

before the effective date of the Statute that arise from

it

No. 91-2320 3

acts committed before that effective date, (2) to cases filed

before the effective date of the statute, but not completed

ment.” This could mean no more than that employers

they must begin to comply, on pain of sanctions if they

fail, on the day the act wns passed. So interpreted the

cases as well, which losing litigants could reopen to take

advantage of the new act. The floor debates on the 1991

act reveal, as one would expect, divergent views on these

questions. It seems futile to search for a legislative in-

he had done so the previous session and his veto had not

been overridden—but the Democratic majority in both

~~ meiner epee

4 No. 91-2320

This politically convenient solution was facilitated by the

fact that the courts do not have a consistent rule for

deciding whether a statute shall be given retroactive, or

merely prospective, effect when the statute does not say.

Either of the contending factions in Congress could thus

hope that statutory silence would work in its favor. In

some cases, notably Bradley v. School Board of City of

Richmond, 416 U.S. 696 (1974), the Supreme Court had

announced a presumption that statutes are to be applied

retroactively, at least in the sense of being applied to

cases pending on the statute’s effective date. In other

cases it had said the opposite. Justice Scalia examined the

two lines of cases in Kaiser Aluminum & Chemical Corp.

v. Bonjorno, 494 U.S. 827, 841 (1990) (concurring opinion),

and pronounced them “in irreconcilable contradiction.” We

agree. We too have straddled this divide. Littlefield v.

McGuffey, 954 F.2d 1337, 1345 (7th Cir. 1992); Orrego v.

833 West Buena Joint Venture, 943 F.2d 730 (7th Cir.

1991); FDIC v. Wright, 942 F.2d 1089, 1095 and n. 6 (7th

Cir. 1991); McKnight v. General Motors Corp., 908 F.2d

104, 110-11 (7th Cir. 1990).

The idea that the iaw should confine its prohibitions and

regulations to future conduct, so that the persons subject

That brings us part of the way to resolution of the ques-

tion whether the recent civil rights act should be applied

pro ively only, but not all the way, because we are

ue only of a mption against retroactive ap-

plication. Proced innovations not likely to bias deci-

sion systematically in favor of one litigant rather than

No. 91-2320 5

his opponent can, without serious affront to the values

crystallized in the phrase “rule of law,” be applied to

cases pending when the innovations were adopted; and

that is the norm even in criminal cases. Dobbert v.

Florida, 432 U.S. 282 (1977); Prater v. United States

Parole Comm’n, 802 F.2d 948, 953 (7th Cir. 1986) (en

banc). In civil cases, the presumption against retroactive

substantive lawmaking is actually reversed when the new-

ly promulgated “law” is a judicial decision, whether over-

ruling a previous decision or otherwise changing the settled

course of the law. Chowaniec v. Arlington Park Race

Track, Lid., 934 F.2d 128, 131-32 (7th Cir. 1991); NLRB

v. Bufco Corp., 899 F.2d 608, 611-12 (7th Cir. 1990); Agfa-

Gevaert, A.G. v. A.B. Dick Co., 879 F.2d 1518, 1524 (7th

Cir. 1989); EEOC v. Vucitech, 842 F.2d 936, 941 (7th Cir.

1988); In re Resolution Trust Co., 888 F.2d 57, 58 (8th

Cir. 1989). In reliance on this presumption—which the Su-

preme Court’s recent decision in Beam may, as we noted,

have rendered irrebuttable, although the absence of a major-

ity opinion makes it more than usually difficult to construct

the Court’s holding—we held in McKnight v. General Motors

Corp., supra, 908 F.2d at 107, that Patterson should be

applied retroactively. This result rested not on the fiction

that judges find rather than make law but on such prac-

tical reasons as that otherwise litigants might lack ade-

quate incentives to seek legal change through the courts

and courts might feel too free to make such changes, be-

cause the costs in disturbance of e tions would be

minimized by prospective application. Moreover, the power

of a court to redistribute wealth and otherwise disturb

settled expectations is held in check by the judicial tradi-

tion of incremental change and by the limited control that

judges exercise over taxing and spending. A legislature

has awesome power uncabined by a professional tradition

of modesty and this power is held a little in check by the

presumption that its handiwork is to be applied only to

future conduct.

We might regard this as an exceptional case by point-

ing out that just as Patterson overruled or at least qual-

fe NE BE ll er

PART RA tS Oe CARD EI Bre ie

6 No. 91-2320

ified the decisions that had created the legal regime ufder

which Luddington brought this suit back in 1986, so the

1991 civil rights statute “overruled” Patterson and several

other decisions that a majority of the Con believed

had misinterpreted 42 U.S.C. § 1981. And we just said

that prospective overruling is the norm. But it would be

naive to suppose that Congress sits to review the inter-

pretive soundness of judicial decisions. Congress is not a

judicial body, let alone a body of academic commentators on

Judicial decisions. When it “overrules” a Supreme Court

decision it is not registering disagreement with the merits

of what the Court did; it is laying down a new rule of

conduct—ordinarily for the future. Section 1981 dates back

to 1866. It is as unlikely that Congress was attempting

to restore section 1981 to the understanding of its framers

as that Patterson in cutting back the earlier decisions had

restored the statute to its original understanding. The new

civil rights act reflects contemporary policy and —

rather than a dispute between Congress and the upreme

Court over the mechanics of interpretation.

If the Civil Rights Act.of 1991 made merely technical

changes to the statute the presumption of prospective ap-

plication would be rebutted. It does more. True, it does

not prohibit any conduct not already prohibited by Title

VII, except the practice of “race norming” (raising mean

test scores of minority applicants to the mean of the ma-

jority). 42 U.S.C. § 2000e-2(/). It makes changes in rem-

edies, procedures, and evidence. But such changes can

have as profound an impact on behavior outside the court-

room as avowedly substantive changes. Before the Act

was | sent ee is to say in the short-lived regime of

the Patterson decision—a plaintiff in an employment dis-

crimination case based on race could invoke section 1981

and thus obtain common law damages only if the discrimi-

nation took the form of refusal to hire in the first place

or, if the plaintiff was already an employee, to promote

into a new loyment relation (such as associate to part-

ner in a law ). A discharge, or a refusal to make an

ordinary promotion or a lateral transfer, was not covered;

No. 91-2320 7

a victim of discrimination in these forms was remitted to

lesser remedies, those of Title VII. The new statute

brings these acts under section 1981 and thus subjects

employers to greater liabilities.

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 retroac-

tively liable to life imprisonment; and in fact such a

change although purely remedial would violate the ex post

facto clause. Miller v. Florida, 482 U.S. 423 (1987); Se-

— Books, Inc. v. Ingemunson, 901 F.2d 630, 639 (7th

ir. 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

gf the new environment created by the change. That is

the philosophy behind the ex’ post facto clause and also

behind the interpretive principle that presumes that a new

civil statute applies only to conduct that occurs after its

effective date. :

All this may seem rather hollow in a case such as this,

where the change brought about by the new statute is

a change back to the legal regime that existed when the

defendant committed the acts for which it is being sued.

Patterson was decided three years after the last act for

which Luddington seeks to hold Indiana Bell liable. In-

diana Bell had the same incentive to avoid racial discrim-

ination back then as it does under the Civil Rights Act

of 1991. Well, but not quite. The pre-Patterson “legal

regime” to which we have referred was merely a set of

lower-court decisions, constituting a stab in the dark con-

cerning issues on which the Supreme Court had not yet

ruled. it was a tentative regime, which Patterson swept

away. And it would be a considerable paradox to hold that

the older the conduct complained of, the more securely

the conduct is subject to the new statute. The Civil Rights

8 No. 91-2320

Act of 1991 would be applied to racial discrimination com-

mitted before 1989, as well as to that committed since 1991,

but racial discrimination committed between 1989 and 1991

would be subject to the more liberal (from a defendant’s

standpoint) regime of the Patterson decision. A jurispru-

dence of effective dates for the 1991 statute would be too

complex to be worth elaborating and applying, especially

when we consider the added costs of litigation that would

be imposed. Here for example retroactive application of

the 1991 statute would require us to remand a case al-

ready in its sixth year that has not been tried. Retroac-

tive application across the board would produce massive

dislocations in ongoing litigation and defeat substantial

reliance interests of employers. Retroactive application

carefully tailored to situations (quite possibly illustrated

by this case) in which those reliance interests are minimal

would engender enormous satellite litigation and associ-

ated uncertainty to fix an indistinct boundary. We hold

that the new act is applicable only to conduct engaged

in after the effective dates (plural because several sec-

tions carry different effective dates) in the act, at least

if the suit had been brofight before the effective date.

That knocks out many of Luddington’s section 1981

claims but leaves all his Title VII claims unaffected. In-

diana Bell, citing cases which hold that skeletal or per-

functory arguments do not googie issues for appellate

review, asks us not to reach the merits of those claims.

It points out, in support of its request, that Luddington’s

brief does not specify which of the 140 claims presented

to the district court he wants us to review, that the ques-

tions presented in his brief do not correspond to the ques-

tions actually argued in the brief, that the brief quotes

a passage about civil rights which does not appear in the

toxic-waste case that the brief cites as its source for the

passage, and that the statement of facts contains virtually

no references to the record.

Luddington filed a reply brief, but it contains no reply

whatsoever to Indiana Bell’s argument that his opening

brief failed to preserve his claims for review by this court.

Although we could search through the summary judgment

No. 91-2320 9

record—examine carefully all 140 claims, or 84 claims (4

x (35 - 14)), or some lesser number—and see whether we

be emacs This court - not - to act as aux-

awyer tor a party to an appeal. The re nsibilit

for the identification, framing, and argument of the hones

on appeal is that of the lawyers, not that of the judges.

Associates, No. 91-1443, slip op. at 13 (7th Cir. May 22,

1992); United States v. Harvey, 959 F.2d 1371, 1376 (7th

Cir. 1991); United States v, Giovannetti, 919 F.2d 1223,

1230 (7th Cir. 1990). At least this is true in civil cases,

where there is no constitutional or other legal right to

competent representation. We add, should anyone think

us too quick to sacrifice substantive justice on the altar

of administrative convenience and other bloodless institu-

tional considerations, that a quick perusal of the record

has brought to light no indications that the district judge

committed any errors.

AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA AOTXXXC-92-001—Midwest Law Printing Co., Inc., Chicago—6-15-92

BRED wh 6 Rn i FO teh A a iE 4

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

September 4, 1992

Before

HON. RICHARD A. POSNER, CIRCUIT JUDGE

HON. MICHAEL S. KANNE, CIRCUIT JUDGE

HON. JAMES M. BURNS,

SENIOR DISTRICT JUDGE*

No. 91-2320

GEORGE J. LUDDINGTON, )Appeal from the

)United States

Plaintiff-Appellant)District Court for

)the Southern

Vv. )District of Indiana

)Indianapolis Div.

INDIANA BELL JNo.86 C 1295

TELEPHONE COMPANY, )John D. Tinder

) Judge

Defendant-Appellee. )

ORDER

On July 13, 1992, plaintiff-

appellant filed a petition for rehearing

with suggestion for rehearing en banc.

All of the judges on the original panel

have voted to deny the petition, and none

of the active judges** has requested a

vote on the suggestion for rehearing en

banc. The petition is therefore DENIED.

*Hon. James Burns of District of Oregon,

Sitting by designation.

**Hon. Walter J. Cummings did not

Darticipate in the consideration of

the suggestion for rehearing en

banc.

10a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

GEORGE J. LUDDINGTON, )

Plaintiff, )

)

Ve ) IP 86-1295-c

)

INDIANA BELL TELEPHONE )

Defendant. )

SUMMARY JUDGMENT IN FAVOR OF DEFENDANT

This Court, having this day issued

its Entry Regarding Defendant's And

Plaintiff's Motions to Reconsider Entry

Granting In Part and Denying In Part De-

fendant's Motion for Summary Judgment,

now, therefore, and in accordance there-

with,

IT IS ORDERED, ADJUDGED AND DECREED

that plaintiff George J. Luddington take

nothing by way of his complaint in the

above captioned cause of action, and

plaintiff Luddington's complaint is

hereby dismissed as to all counts in fa-

vor of defendant Indiana Bell Telephone

Co.

ALL OF WHICH IS ORDERED THIS ist day

of February 1991.

John Daniel Tinder, Judge

U.S. District Court

O.B. Vol. 37, page 88

lla

hn &

ee ee ee ee De mae oe

se ati: tin A pte a sy, Ce EM OES

tt

GE AE attr oe rei ON

The text of 1977 of the Civil

Rights Act of 1991, (42 U.S.C. §1981)

@S amended, subsection (6b) provides:

"For purposes of this section, the term

‘make and enforce contracts' includes

the making, performance, modification,

and termination of contracts, and the

enjoyment of all benefits, privileges,

terms, and conditions of the contrac-

tual relationship. The rights pro-

tected by this section are protected

against impairment by nongovernmental

discrimination and impairment under

color of State law."

The text of Civil Rights Act 1991,

§1977A: Damages in cases of Inten-

tional disrimination in employment,

§3(a-d), "(3) Limitations--The sum of

the amount of compensatory damages

awarded under this section for further

pecuniary losses, emotional pain, suf-

fering, inconvenience, mental anguish,

loss of enjoyment of life, and other

nonpecuniary losses, and the amount of

punitive damages awarded under this

section, shall not exceed, for each

complaint party--(A) in the case of a

respondent who has more than 14 and

fewer than 101 employees in each of 20

Or more calendar weeks in the current

Or preceding calendar year, $50,000;

(B) in the case of respondent who has

more than 100 and fewer than 201 em-

ployees in each of 20 or more calendar

weeks in the current or preceding cal-

endar year, $100,000; (C) in the case

of a respondent who has more than 200

and fewer than 501 employees in each of

20 or more calendar weeks in the cur-

rent or preceding calendar year

l2a

eittdteat.

$200,000; and (D) in the case of a re-

Spondent who has more than 500 employ -

ees in each of 20 or more calendar

weeks in the current or preceding cal-

endar year $300,000.

The text of Section 109(c), of the

Civil Rights Act of 1991 States: (C)

APPLICATION OF AMENDMENTS .--The amend-

ments made by this section Shall not

apply with respect to conduct occurring

before the date of the enactment of

this Act.

The text of Section 2 of the Civil

Rights Act of 199] States--FINDINGS.

The Congress finds that (1) additional

remedies under Federal law are needed

to deter unlawful harassment and inten-

tional discrimination in the workplace;

(2) the decision of the Suprme Court in

Wards Cove Packing Co. v. Atonio, 490

US 642 (1989) has weakened the scope

and effectiveness of Federal civil

rights protections; and (3) legislation

is necessary to provide additional pro-

tections against unlawful discrimina-

tion in employment.

The text of Section 3 of the Civil

Rights Act of 1991 States--PURPOSES.

The purposes of this Act are (1) to

Provide appropriate remedies for inten-

tional discrimination and unlawful har-

assment in the workplace; (2) to codify

the concepts of "business necessity"

and "job related" enunicated by the Su-

preme Court in Griggs v. Duke Power

Co., 401 US 424 (1971) and in the other

Supreme Court decisions prior to Wards

ale ee + tle ten AL,

Cove Packing v. Atonio, 490 US 642

(1989); (4) to respond to recent deci-

Sions of the Supreme Court by expanding

the scope of relevant civil rights

statutes in order to provide adequate

protection to victims of discrimina-

tion.