when "manifest injustice" would result. Bradley, 416 U.S. at 711. In order to avoid such injustice, it suggests that courts should consider "(a) the nature and identity of the parties, (b) the nature of their rights, and (c) the nature of the impact on the change in law upon those rights." Id. at 717.
The first prong of the Bradley test recognizes the distinction between litigation brought in the public interest and suits brought solely to vindicate private concerns. See Croce, 786 F. Supp. at 1145. Boss argues that Title VII cases such as the instant one are, by their nature, of "great national concern" and therefore merit a presumption of retroactivity. See Bradley, 416 U.S. at 718-19. This Court concedes that the underlying issues involved in Title VII cases are of great national concern. However, the question of whether § 102's jury trial and compensatory damages provisions should be granted on a retroactive or prospective basis is of great concern only to the parties involved.
Defendant notes that "statutes affecting substantive rights and liabilities are presumed to have only prospective effect." Bennett v. New Jersey, 470 U.S. 632, 639, 84 L. Ed. 2d 572, 105 S. Ct. 1555 (1985). Boss, however, asserts that defendant would not have altered its conduct either in reliance on the previous law, or with knowledge of the new law. Therefore, she contends, the changes in the Act are not substantive. See Memorandum of Law of Plaintiff-Intervenor Theresa Boss at 24-25.
Assuming, arguendo, that plaintiff-intervenor's contention is correct, then applying the remedies in § 102 on a retroactive basis would do no more than grant her the right to a jury trial and the possibility of receiving up to $ 300,000 in additional damages. This is hardly a matter of national concern and consequently there is no need to apply these remedies retroactively. See Bradley, 416 U.S. at 717 (there may be injustice in retroactively applying a change in law in cases involving private matters). If, on the other hand, the Act's new provisions would have a deterrent effect on defendant, then the change in law would be substantive and it would be unfair to penalize defendant for conduct it would not have committed had the Act been in effect at the time. See Bennett, 470 U.S. at 63940.
Plaintiff-intervenor also asserts that because the Act does not render previously lawful conduct illegal, applying the provisions of § 102 of the Act to this case would not impact on "substantive rights and liabilities." See United States v. Security Indus. Bank, 459 U.S. 70, 79, 103 S. Ct. 407, 74 L. Ed. 2d 235 (1982). This Court finds, however, that "[a] right to seek compensatory damages in a jury trial . . . is a major substantive provision." Van Meter v. Barr, 778 F. Supp. 83, 84 (D.D.C. 1991); see Vogel, 959 F.2d at 598. ("Bradley should be read narrowly and should not be applied in contexts where 'substantive rights and liabilities', broadly construed, would be affected"). Therefore, to the extent that § 102's provisions are substantive, their retroactive application is barred by Bennett.
c. The Second Circuit and Most Authority Support Bowen
Relying on Gonzalez v. Home Ins. Co., 909 F.2d 716 (2d Cir. 1990), plaintiff-intervenor contends that the Second Circuit has supported a presumption of retroactivity. However, Gonzalez concerns the retroactivity of judicial decisions rather than legislative enactments. Id. at 723. "The principle that statutes operate only prospectively, while judicial decisions operate retrospectively, is familiar to every law student." Security Indus. Bank, 459 U.S. at 79 (citations omitted); see Bennett, 470 U.S. at 639 (same).
Moreover, in Lehman v. Burnley, 866 F.2d 33 (2d Cir. 1989), the Second Circuit found retroactive application of a statute inappropriate. Id. at 37 (citing Bowen); see also Leland v. Federal Ins. Admin., 934 F.2d 524, 528 (4th Cir.), cert. denied, 116 L. Ed. 2d 437, 112 S. Ct. 417 (1991) (same); Alpo Petfoods, Inc. v. Ralston Purina Co., 913 F.2d 958, 963-64 (D.C. Cir. 1990) (same); Petra Cablevision, 793 F. Supp. 417, 1992 U.S. Dist. LEXIS 7618 at *14 (a majority of circuit courts and district courts have supported Bowen).
Accordingly, this Court holds that the jury trial and compensatory damages provisions of § 102 of the Civil Rights Act of 1991 should be applied only prospectively.
Notwithstanding the aforementioned holding, this Court recognizes that many district courts have held that the provisions in § 102 of the Act should be applied retroactively and that this issue has not yet been decided by the Supreme Court or the Second Circuit. Accordingly, for the purpose of judicial economy, this Court will contemporaneously conduct both a bench trial and a jury trial. At the conclusion of the trial, (1) the Court will decide the case from the bench, applying the law in effect before the enactment of the Civil Rights Act of 1991; (2) the jury will be instructed that if it finds for plaintiff, it may award compensatory damages not greater than $ 300,000, as provided in § 102 of the Act; and (3) the Court's opinion will be sealed until the jury's decision is announced. In the event that the Second Circuit or the Supreme Court rules that the remedies in § 102 of the Act should have been applied to this case, there will then be no need to remand the case for a new trial; instead, the jury's verdict and award, if any, can then be given full effect.
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York
July 6, 1992