orthodox since Aristotle -- for the court to complete (not enlarge) the statute by reading it to bring about the end that the legislators would have specified had they thought about it more clearly or used a more perspicuous form of words.
Not surprisingly, courts that have considered the 1991 Civil Rights Act's retroactivity -- both those cited above and others -- look first to the statute's language, then to its legislative history, and finally to governing Supreme Court precedent. And as the quotations and this court's reference to them intimate, few courts have found either the words or the legislative history of the 1991 Act determinative. See, e.g., Johnson, 965 F.2d at 1372 ("The statutory language and legislative history is inconclusive on the question of retroactive application."); Petra Cablevision, 793 F. Supp. at 421 ("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.").
Turning first to the Act's language, litigants have relied on Sections 109 and 402(b), both of which are expressly prospective, to argue that the remainder of the Act is retrospective. However, as most courts have agreed, it is just as likely that Congress intended the language of these two sections as specific insurance of prospective application without imposing any effect on the statute's remainder. See Gersman, 1992 WL 220163 at *4 ("Given the convoluted legislative history of this Act and the war of interests firing at each other across the floor of both legislative houses, one might view these two subsections not as redundancies, but rather as insurance policies."); Fray, 960 F.2d at 1377 ("Whenever a congressional majority could be marshalled, retroactivity opponents 'hedged their bets' by expressly making specific provisions, such as [Section 109], prospective only."); Petra Cablevision, 793 F. Supp. at 421 ("[I]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."). Certainly, the language is anything but clear. But see Davis, 976 F.2d 1536, (discussing prospective language of Sections 109 and 402(b) as indicating retroactive application of statute's remainder and comparing cases that held otherwise). Similarly, Section 402(a)'s directive -- that the Act shall take effect on November 21, 1991 -- does not indicate that as of that date all courts considering conduct under the statute's auspices are to apply the statute to the behavior before them. See Mozee, 963 F.2d at 933 ("Section 402(a)'s language is hopelessly ambiguous as to the issue of whether Congress intended the 1991 Civil Rights Act to apply retroactively to pending cases.").
Since the statute's language does not answer the retroactivity question, courts have looked to its legislative history. However, there are no legislative committee reports that explain the 1991 Act. Fray, 960 F.2d at 1376. And the floor debates represent highly politicized views of individual Congress members. Id. at 1376-77; Davis, 976 F.2d 1536, & n.9; see also Croce, 786 F. Supp. at 1144 ("Upon review of excerpts from the Act's legislative history, it is clear that the colloquy concerning retroactivity split along partisan lines."). Thus, "the contenders could not agree, so they dumped the question into the judiciary's lap without guidance." Luddington, 966 F.2d at 227 (Posner, J.).
Given the lack of guidance from Congress, courts have turned to Supreme Court precedent discussing retroactivity of statutory provisions. And, as many others already have acknowledged, the cases are "irreconcilably" conflicted. See Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 841, 108 L. Ed. 2d 842, 110 S. Ct. 1570 (1990) (Scalia, J., concurring) ("In the rules of construction that they announce, if not in the results they produce, these two lines of cases are not merely as the Court confesses, in 'apparent tension,' . . . they are in irreconcilable contradiction, and have spawned Courts of Appeals opinions to match."); Gersman, 1992 WL 220163 at *7-12 (detailing history and precedent leading up to adoption of opposing retroactivity presumptions). The two Supreme Court cases that announce apparently polar rules of law regarding retroactivity are Bowen v. Georgetown University Hosp., 488 U.S. 204, 208, 102 L. Ed. 2d 493, 109 S. Ct. 468 (1988) ("Retroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.") and Bradley v. School Bd., 416 U.S. 696, 711, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974) ("[A] court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary."). See also Kaiser Aluminum, 494 U.S. at 840-58 (Scalia, J., concurring) (discussing the Bowen/Bradley conflict and advocating express overruling of Bradley).
To date, however, the supreme Court has not reconciled the tension between the laws of Bowen and Bradley. As a result, lower courts have struggled with how to understand and work within this conflict; with respect to the 1991 Act and especially Section 101(b), courts have navigated these conflicting cases by relying on Bennett v. New Jersey, 470 U.S. 632, 84 L. Ed. 2d 572, 105 S. Ct. 1555 (1985). See, e.g., Gersman, 1992 WL 220163 at *13-14. In Bennett, a case centering around the misuse of certain federal fund grants, the Supreme Court refused to apply a statute retroactively because "substantive rights" were involved. Bennett, 470 U.S. at 639. Distinguishing Bradley, the Court explained that "statutes affecting substantive rights and liabilities are presumed to have only prospective effect." Id. The Court also emphasized the practical implication of its holding: the necessity that parties be able to adjust their conduct to the governing standards in place when that conduct occurred. Id. at 640.
As several courts have recognized,
Section 101 affects substantive antecedent rights. Under Patterson, § 1981 did not prohibit discrimination in promotions [or terminations] before the enactment of § 101. Section 101 extended § 1981 to such discriminatory conduct. We then presume that § 101 does not apply to conduct that occurred before its enactment, absent clear evidence to the contrary. There is no such clear evidence.
Johnson, 965 F.2d at 1374. From this recognition, these courts have reasoned that parties -- employers in Section 1981 cases -- should not be punished for engaging in conduct -- here discriminatory termination -- that was permissible at the time that the conduct occurred. See Gersman, 1992 WL 220163 at *13-14; Mozee, 963 F.2d at 936 ("One of the policies embodied in the need for prospective application is that it is unfair to hold private parties accountable for rules which were not in effect at the time in which the parties' relevant conduct took place. . . . As such, the better and more fair rule is to hold parties accountable for only those acts that were in violation of the law at the time the acts were performed."); see also Baynes, 976 F.2d 1370, )(applying both Bowen and Bradley presumptions to conclude that Section 101 should be prospective only); Fray, 960 F.2d at 1378 (same). This court joins the majority of its sister courts and therefore declines to apply Section 101(b) of the 1991 Civil Rights Act to conduct that occurred when Patterson was the governing law.
This holding does not end the inquiry, however, since in this case the conduct for which plaintiff seeks to recover occurred prior to the Patterson decision. At the time that Amboy terminated Hill's employment, the Second Circuit interpreted Section 1981 as extending to job discrimination occurring after contract formation. See Gonzalez, 909 F.2d at 722. As such, plaintiff argues that the only sensible course for this court to take is to apply Section 101(b) to Amboy's conduct; to do otherwise, plaintiff asserts, would take conduct that fell within Section 1981 when it occurred and now once again falls within the statute's purview and would place that conduct beyond the reach of the Civil Rights Act by virtue of a rule in effect -- via Patterson -- for only two years.
Several other courts have addressed the retroactivity question in the context of pre-Patterson conduct. For example, just months after the Mozee decision was handed down, a different panel of the Seventh Circuit faced the specific question of how the 1991 Act should apply to behavior that occurred prior to Patterson. See Luddington, 966 F.2d at 229. Rather than relying on the language of Mozee quoted above, the court discussed the theoretical and practical drawbacks that would result from its excepting this narrow category of cases from prospective application:
The pre-Patterson "legal regime" to which we have referred was merely a set of lower-court decisions, constituting a stab in the dark concerning 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 Act of 1991 would be applied to racial discrimination committed 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 jurisprudence 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.
Id. Similarly, in Johnson, 965 F.2d at 1374, the Fifth Circuit stated:
We recognize the apparent anomaly that, at the time of [the] allegedly discriminatory conduct, Patterson had not yet been decided and, under the decisions of many lower courts, § 1981 applied to racial discrimination in promotions. [Defendant's] reliance on the law announced in Patterson, therefore, may be minimal. . . . We are not persuaded. As a matter of law the rule announced in Patterson applies retroactively . . . . [Defendant] is just as entitled to the preservation of its substantive interests under this rule as litigants whose conduct occurred after Patterson was decided. Any other holding would require unwieldy distinctions between classes of litigants based on the degree to which they relied on the legal regime antedating the Civil Rights Act of 1991. We decline to embark on such an inquiry.
See also Gersman, 1992 WL 220163 at *15 ("The fact, stressed by the dissent, that the conduct involved here occurred before the decision in Patterson is of no legal effect. It simply cannot be the law that retroactive application of a statute is governed by whether or not the parties reasonably, but mistakenly, believed that the law at the time of their conduct was what the law later became.").
In her Gersman dissent Judge Wald forcefully propounds the opposing argument; she argues that rather than distinguishing between substance and procedure, Bennett instructs courts to focus on parties' expectations at the time of their conduct. Id. at *16-31 (Wald, J., dissenting) ("Because the law prior to the Supreme Court's decision in Patterson. . . with respect to § 1981's applicability to post-formation conduct was substantially identical to the law as enacted in § 101 of the Civil Rights Act, the retroactive application of that section to the parties in this case would not undermine the parties' reasonable expectations concerning the rights and obligations arising out of their conduct in October 1987."). She therefore concludes that parties who engaged in discrimination after contract formation reasonably expected that their conduct would be actionable and therefore should be held accountable for that conduct. Id. at *22 ("To the extent that the law prior to Patterson was the same as the law enacted in the Civil Rights Act, the application of § 101 of the Act to the facts of this case would not be 'manifestly unjust,' and the Bradley presumption should govern. Because the new law was the same as what the parties reasonably understood the law to be before Patterson, there is no reason not to apply § 101 retroactively.").
Admittedly, neither of the two alternatives with which this court is faced is optimal: one protects conduct that was impermissible when it occurred merely because a Supreme Court case announced a rule that Congress soon rejected; the second alternative slivers out and protects a two-year period of post-contract formation discrimination but makes the exact same conduct outside the relevant window of time actionable. Forced to choose between these alternatives, this court finds the former more coherent and therefore more palatable. As Luddington and Johnson recognized, singling out pre-Patterson conduct for retroactive application not only would incur practical difficulties, but also would ignore the well entrenched rule that Supreme Court cases should be applied retroactively. James B. Beam Distilling Co. v. Georgia, U.S. , 111 S. Ct. 2439, 115 L. Ed. 2d 481 (1991). In addition, differentiating between pre- and post-Patterson conduct would sacrifice the finality and stability that Supreme court cases and statutes bring -- or should bring -- to the law. While Section 1981 has experienced a tortuous history, differentiating pre-Patterson conduct will only further confuse the statute's scope and application. Absent Congressional or appellate court guidance, this court refuses to take such a step. Accordingly, plaintiff Hill's Section 1981 claims fail as a matter of law, causing this court to grant summary judgment to defendant Amboy on plaintiff's fourth cause of action.
This court hereby denies all motions for summary judgment on plaintiff's Title VII action. As to all other causes of action, this court grants summary judgment in favor of defendants.
Dated: Brooklyn, New York
November 12th 1992
I. Leo Glasser, U.S. D. J.