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May 20, 1992

KELVIN D. SMITH, Plaintiff,

The opinion of the court was delivered by: CAROL BAGLEY AMON


 I. Introduction

 On November 5, 1990, argument was held on defendants' original motion to dismiss the amended complaint in this case, plaintiff's cross-motion to disqualify defendants' counsel, and defendants' motion for sanctions pursuant to Fed. R. Civ. P. 11. After hearing argument, the Court denied plaintiff's motion to disqualify and denied defendants' motion for sanctions. Defendants' motion to dismiss was granted as to the first cause of action alleging a violation of 42 U.S.C. § 1981, with leave to replead, and a decision on defendants' motion to dismiss plaintiff's pendent state claims and strike plaintiff's demand for compensatory damages pursuant to his Title VII claim was reserved.

 Plaintiff then amended his complaint for the second time restating his Section 1981 claim in his first and fifth causes of action. In his first cause of action, plaintiff asserts that the defendants' actions violated 42 U.S.C. § 1981, in that the relevant grievance procedures outlined in the manual were not complied with at any time, although such procedures were complied with for similarly situated white individuals. (Complaint, P17). As a fifth cause of action plaintiff again invoked 42 U.S.C. § 1981 alleging that Section 1981 was violated when defendants refused to enter into a new contract to rehire him in another position, although defendants routinely did so for similarly situated white individuals. (Complaint, P25).

 Defendants subsequently renewed their motion to dismiss these claims and the pendent state claims, and to strike plaintiff's demand for compensatory damages under Title VII. On January 15, 1992, the Court issued a Memorandum and Order dismissing the plaintiff's Section 1981 claims, as contained in his first and fifth cause of action, and his demand for compensatory damages under Title VII. The state law claims were retained as pendant to the Title VII claim.

 The Court found that as to plaintiff's argument that the defendants entered into the employment contract with an intent to either not honor the contract or to terminate the contract because of plaintiff's race, such a Section 1981 claim was barred by the Supreme Court's holding in Patterson v. McClean Credit Union, 491 U.S. 164, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989). Plaintiff's theory that defendants' failure to rehire him after his discharge was actionable under Section 1981, was found to be simply a claim for discriminatory discharge, again barred by Patterson. As to plaintiff's claim that defendants discriminatorily failed to enforce the relevant grievance procedures, the Court found no evidence of any obstruction of plaintiff's access to judicial or non-judicial fora for resolution of the employment dispute. *fn1"

  Plaintiff has since moved for reargument maintaining that the Civil Rights Act of 1991 should be applied retroactively to the instant case. Plaintiff argues that application of the 1991 Act would result in reinstatement of his dismissed Section 1981 claims, *fn2" as well as allowing compensatory damages and a jury trial on his Title VII claim. The Court agreed to hear reargument on the issue of the retroactivity of the Civil Rights Act of 1991. For the reasons stated below, the Court finds that the Civil Rights Act of 1991 is to be applied prospectively, and plaintiff's motion is therefore denied.

 II. Discussion

 On November 21, 1991, President Bush signed into law the Civil Rights Act of 1991, Pub. Law No. 102-166, 105 Stat. 1071 (1991) (the "Act" or "CRA"). The CRA was the product of a congressional effort to pass a civil rights bill that would "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." Civil Rights Act of 1991, § 3. *fn3"

 The Act altered prior law in three ways which are relevant to the instant case. Section 101 of the Act amended 42 U.S.C. § 1981, by adding a new subsection (b) which states:

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 contractual relationship.

 A new subsection (c) makes clear that the protections of Section 1981 apply to nongovernmental discrimination as well as that occurring under color of state law.

 Section 102 of the Act adds a new section following 42 U.S.C. § 1981 which provides that:

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-5) against a respondent who engaged in unlawful intentional discrimination . . . prohibited under section 703, 704, or 717 of the Act . . . and provided that the complaining party cannot recover under section 1977 of the revised statutes (42 U.S.C. 1981), the complaining party may recover compensatory and punitive damages as allowed in subsection(b), in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent.

 Section 102 also states that where a complaining party seeks compensatory or punitive damages under that section, any party may demand a jury trial. *fn4"

 The Supreme Court authority on the retroactivity of legislation has proceeded along divergent lines. In Bradley v. Richmond School Board, 416 U.S. 696, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974), the Court, relying on Thorpe v. Durham Housing Authority, 393 U.S. 268, 21 L. Ed. 2d 474, 89 S. Ct. 518 (1969), held that "a court is to apply the law in effect at the time it renders its decision." Bradley, 416 U.S. at 712. The two exceptions to this rule are where retrospective application of a law would result in manifest injustice to one of the parties or where there is clear congressional intent to the contrary. Id. at 713. A conflicting position was expressed in Bowen v. Georgetown University Hospital, 488 U.S. 204, 109 S. Ct. 468, 471, 102 L. Ed. 2d 493 (1988), where the Court stated that "retroactivity is not favored in the law . . . Congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Id. (as quoted in Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 110 S. Ct. 1570, 1577, 108 L. Ed. 2d 842 (1990)). The conflict between these two views was recognized in Kaiser, 110 S. Ct. at 1577. The Kaiser Court, however, declined to resolve this conflict because it found that under either view, Bradley or Bowen, "where congressional intent is clear, it governs." Kaiser, 110 S. Ct at 1577. Thus, in Kaiser, the Court was able to resolve the issue by looking to the language of the statute in question and congressional intent. *fn5"

 Accordingly, this Court's analysis of the CRA must begin with the language of the statute. As a general rule of statutory interpretation, where the statute's language is plain, absent a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive. Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 109, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980).

 A. The Language of the Civil Rights Act of 1991

 Section 402(a) of the Act states that "except as otherwise specifically provided, this Act and the amendments made by the Act shall take effect upon enactment." Two other provisions are also relevant. Section 109 deals with discrimination by American companies against U.S. citizens working abroad. Section 109(c) states that "the amendments made by this section shall not apply with respect to conduct occurring before the date of the enactment of this Act." Also of note is Section 402(b), an amendment offered by Senator Frank Murkowski, designed to provide a safe haven for the parties in the Wards Cove case. That section provides that:

Notwithstanding any other provision of this Act, nothing in this Act shall apply to any disparate impact case for which a complaint was filed before March 1, 1975, and for which an initial decision was rendered after October 30, 1983.

 Civil Rights Act of 1991, § 402(b).

 Plaintiff maintains that the provisions of Sections 109(c) and 402(b), stating that the Act will not be given retroactive effect as to these two discrete classes of claims, demonstrate that Congress intended Section 402(a) to give retroactive effect to the remaining provisions of the CRA. These provisions would, according to plaintiff, be redundant if Section 402(a) were to be read as requiring prospective application of the entire Act. See, e.g., Mackey v. Lanier Collection Agency & Serv. Inc., 486 U.S. 825, 837, 100 L. Ed. 2d 836, 108 S. Ct. 2182 (1988); Russello v. United States, 464 U.S. 16, 23, 78 L. Ed. 2d 17, 104 S. Ct. 296 (1983) ("Where Congress includes particular language in one section of a statute but omits it from another section of the same Act, it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion or exclusion.").

 In addition, plaintiff argues that Congress intended the Act "to take effect upon enactment." Since the purpose of the Act was to overturn prior Supreme Court rulings and restore the law to its prior position, plaintiff reasons that the Act can only "take effect upon enactment" in a meaningful way if retroactive application is required. If not, the law which Congress sought to overrule would continue to be the prevailing law in thousands of cases where the complained of conduct occurred prior to November 21, 1991. According to plaintiff this would result in years of litigation utilizing interpretations of the law which Congress sought to overrule.

 Plaintiff's view finds support in some of the recent cases which have examined the retroactivity question and have found the language of the statute to support retrospective application. See, e.g., Stender v. Lucky Stores, Inc., 780 F. Supp. 1302 (N.D.Cal. 1992). Most courts, however, have acknowledged, even where ultimately applying the Act retroactively, that the language of the statute is less than clear and that it is possible to read the language as supporting prospective, as well as retrospective application. See, e.g., Mojica v. Gannett Co., Inc., 779 F. Supp. 94, 1991 U.S. Dist. LEXIS 17388 (N.D. Ill. Nov. 27, 1991) (finding Act retroactive but acknowledging language and legislative history is unclear); Tyree v. Riley, CV-88-2494, slip op. at 30 (D.N.J. Feb. 7, 1992) (finding language and legislative history unclear and applying act prospectively).

 Although Section 402(b) has been relied upon as supporting the conclusion that the other provisions of the Act are retroactive, an equally fair reading is that Section 402(b) was included simply to ensure that the Act would not be read to allow further litigation in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 104 L. Ed. 2d 733, 109 S. Ct. 2115 (1989), and that no further significance can be attributed to this section. See Thompson v. Johnson & Johnson Management Information Center, 783 F. Supp. 893 (D.N.J. 1992). The legislative history, which is discussed in greater detail below, indicates that Section 402(b) was intended to apply only to the Wards Cove case. See 137 Cong. Rec. S15,483 (daily ed. Oct. 30, 1991) (Statement of Sen. Danforth); 137 Cong. Rec. H9512 (daily ed. Nov. 7, 1991)(statement of Rep. Hyde); Cong. Rec. S15,954 (daily ed. Nov. 5, 1991) (letter of Sen. Murkowski). See also Khandelwal v. Compuadd Corp., 780 F. Supp. 1077, 1079-80 (E.D. Va. 1992). Given that there was considerable uncertainty among members of Congress as to whether the act would be applied prospectively or retrospectively, see infra, § II.B.2, it is logical to conclude that Congress simply sought to insure that no matter what happened to the rest of the Act, Wards Cove would be immune. See Thompson, slip op. at 6. The same reasoning applies to Section 109(c).

 Similarly, the fact that the Act was to "take effect upon enactment" can be read as indicating that the provisions of the Act would only apply to cases instituted and conduct occurring after the enactment of the legislation. Another plausible reading is that the language has no relation to the retroactivity question and was included simply to make clear that the Act would become law upon enactment, not at some specified time in the future. *fn6"

 Thus, it would appear that a reasonable argument could be made for either retroactive or prospective application of the Act based solely upon its language. Accordingly, the Court ...

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