Accordingly, without a clear indication of congressional intent on the issue of prospective versus retroactive application, this Court must look to "judicially derived rules of construction in order to resolve this ambiguity." Mozee, 963 F.2d at 934.
Supreme Court precedent addressing the general issue of the retroactivity of legislation is somewhat divided. Bradley v. Richmond School Board, 416 U.S. 696, 40 L. Ed. 2d 476, 94 S. Ct. 2006, (1974), establishes a presumption of retroactivity absent either clear congressional intent to the contrary or the occurrence of manifest injustice. Bowen v. Georgetown University Hospital, 488 U.S. 204, 102 L. Ed. 2d 493, 109 S. Ct. 468, (1988), the more recent case, establishes a prospective presumption which is only defeated by evidence of a clear congressional intent that the legislation operate retroactively.
The Supreme Court recognized that the two cases exist in "apparent tension." Kaiser Aluminum, 494 U.S. at 837. Presented in Kaiser Aluminum with an opportunity to resolve the conflict, the Court declined to settle the issue, finding clear congressional intent that the statute at issue in that case was not meant to be applied retroactively.
Justice Scalia, in his concurring opinion in Kaiser Aluminum, expressed regret with the Court's decision to leave unresolved the conflict between Bradley and Bowen. In a thoughtful and comprehensive analysis of this issue, Justice Scalia concluded that the confusion which currently exists began with the Court's decision in Thorpe v. Housing Authority of Durham, 393 U.S. 268, 21 L. Ed. 2d 474, 89 S. Ct. 518, (1969), which held that a regulation of the Department of Housing and Urban Development had to be applied retroactively, thus invalidating an eviction order issued some 18 months before the regulation had been adopted. Justice Scalia makes a compelling argument that, prior to Thorpe, there existed an unbroken line of precedent applying a presumption that statutes are not retroactive (except for repeal of penal provisions). He opines that the Thorpe decision is based on a misreading of the Court's own precedent, and that it introduced confusion into an otherwise settled area of law. The confusion introduced by Thorpe was reinforced and expanded five years later in Bradley. As a result of his analysis, Justice Scalia concluded that the rule expressed in Bowen should be reaffirmed as "the clear rule of construction that has been applied, except for these last two decades of confusion, since the beginning of the Republic and indeed since the early days of common law: absent specific indication to the contrary, the operation of non-penal legislation is prospective only." Kaiser Aluminum, 494 U.S. at , 110 S. Ct. at 1579 (Scalia, J., concurring) (footnote omitted).
This Court finds the reasoning expressed in Justice Scalia's concurrence in Kaiser Aluminum to be highly persuasive. The confusion created by the co-existence of the Thorpe-Bradley and Bowen decisions should be ended by a reaffirmation of the Bowen rule that, absent clear congressional intent to the contrary, legislation should be applied on a prospective basis. The Second Circuit has itself endorsed and applied the Bowen rule in a different context. See, Lehman v. Burnley, 866 F.2d 33, 37 (2d Cir. 1989) (refusing to apply an agency ruling retroactively). Accordingly, because congressional intent was not clearly expressed with respect to the retroactivity of the Civil Rights Act of 1991, the Court concludes that the Act must be applied prospectively.
For the reasons set forth above, plaintiff's motion to amend her complaint is hereby denied.
ALL OF THE ABOVE IS SO ORDERED.
Michael A. Telesca
United States District Judge
Dated: August 12, 1992
Rochester, New York
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