be prospective only; any other conclusion simply ignores the legislative process." Id.
However, two factors negate the Seventh Circuit's reasoning that the legislative history is dispositive. First, if Congress had intended the 1991 Act to be applied prospectively, it would have adopted the proposed bill which contained explicit prospective language.
Its failure to do so is an indication that neither the prospective nor the retroactive proponents could muster the necessary votes to enact a statute that represented their views. Second, if the legislative intent was clear that the 1991 Act is to be applied prospectively, there would have been no need for further Congressional debate on whether the 1991 Act is to be applied retroactively or prospectively. As noted above, members of Congress continued to disagree on this issue up until the time of enactment. The conflicting interpretative memoranda by Senators Danforth and Kennedy, the 1991 Act's principal sponsors, are a striking demonstration of the inability of Congress to decide this issue. In acknowledging this problem, Senator Kennedy has expressed that "it will be up to the courts to determine the extent to which the bill will apply to cases and claims that are pending on the date of enactment." 137 Cong. Rec. S15485 (daily ed. Oct. 30, 1991). Consequently, it is clear that Congress has left the issue of the 1991 Act's retroactivity to the judiciary.
However, before turning to judicially-derived rules of statutory interpretation, the Court will first consider a policy guidance that the Equal Employment Opportunity Commission issued on this subject. When a court is faced with a problem of statutory construction, the Supreme Court has held that the court should show great deference to the interpretation given to the statute by the officers or agency charged with its administration. Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 57 L. Ed. 2d 337, 98 S. Ct. 2441 (1978) (citing Udall v. Tallman, 380 U.S. 1, 16, 13 L. Ed. 2d 616, 85 S. Ct. 792 (1965)). Consequently, the Court will examine the Equal Employment Opportunity Commission's interpretation of the 1991 Act for guidance on this issue.
C. Equal Employment Opportunity Commission Policy Guidance
On December 27, 1991, the Equal Employment Opportunity Commission ("EEOC") issued its Policy Guidance of Retroactivity of Civil Rights Act of 1991 on the application of the 1991 Act's damages provisions to pending charges and pre-Act conduct. See EEOC Policy Guidance of Retroactivity of Civil Rights Act of 1991 (Dec. 27, 1991), reprinted in BNA DAILY LABOR REPORT, No. 1, p. D-1 (Jan. 2, 1991) ("Policy Guidance"). In its analysis, the EEOC acknowledged that the statutory language and the legislative history are unclear as to whether the 1991 Act should be applied retroactively or prospectively. The EEOC also recognized that the conflicting Supreme Court precedents represented by Bradley, which favors retroactive application, and Bowen, which disfavors retroactive application, provided no clear guidance on how the 1991 Act is to be construed. Thus, in light of the ambiguity in the legislative history and Supreme Court precedents, the EEOC opted to follow Bowen because it represents the Supreme Court's more recent holding on this issue. Accordingly, the EEOC determined that it will not seek damages in charges filed prior to the enactment of the 1991 Act, or in post-Act charges that challenge pre-Act conduct.
The EEOC's Policy Guidance, however, is of little assistance to the Court. Congress, in enacting Title VII of the Civil Rights Act of 1964, did not confer upon the EEOC authority to promulgate rules or regulations pursuant to that Title. General Elec. Co. v. Gilbert, 429 U.S. 125, 141, 97 S. Ct. 401, 50 L. Ed. 2d 343 (1976). Rather, the EEOC, in the past, has issued guidelines which the Supreme Court has held do not constitute administrative "regulations." Albemarle Paper Co. v. Moody, 422 U.S. 405, 431, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1976). Nevertheless, this does not mean that EEOC guidelines are not entitled to consideration in determining legislative intent. But it does mean that courts may properly accord less weight to such guidelines than to administrative regulations which Congress has declared shall have the force of law. General Elec., 429 U.S. at 141.
The most comprehensive statement of the role of interpretative rulings such as the EEOC guidelines is found in Skidmore v. Swift & Co., 323 U.S. 134, 89 L. Ed. 124, 65 S. Ct. 161 (1944), where the Supreme Court stated that rulings, interpretations, and opinions of an agency that administers a statute, "while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which the courts . . . may properly resort for guidance." Id. at 140. "The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control." Id.
Consequently, the EEOC's policy guidance on the issue of retroactivity, although not binding on this Court, does constitute "a body of experience and judgment" to which the Court can look for direction. The Court notes that the EEOC correctly states that the statutory language is ambiguous, that Congressional intent is unclear, and that Supreme Court precedents are conflicting. Because of these factors, the EEOC opts to rely on Bowen for its stand on prospective application because the case represents the Supreme Court's more recent holding on the issue of retroactivity. This Court, however, declines to rely exclusively on the EEOC's path of reasoning and its reliance on Bowen.
While Bowen does represent the more recent decision by the Supreme Court, both Bradley and Thorpe still constitute good law until the Supreme Court overrules them. The Supreme Court had such an opportunity in Bonjorno but declined to do so, noting only that there is an "apparent tension" between Bradley and Bowen, 494 U.S. at 837, even in the face of Justice Scalia's invitation to overrule Bradley and Thorpe. Id. at 841. Therefore, this Court is not persuaded that it should give great weight to the EEOC's reasoning or reliance on Bowen. Accordingly, although this Court does take note of the EEOC's stand on this matter, the Court will turn to judicially-derived rules of construction in order to resolve this ambiguity.
D. Judicial History
Neither the Supreme Court nor the Ninth Circuit has ruled on the issue at bar. As of the date of this Order, those Circuits which have been willing to address the question have held that the 1991 Act is to be applied prospectively. See Johnson v. Uncle Ben's, Inc., 965 F.2d 1363, 1992 WL 147678 (5th Cir. 1992); Mozee v. American Commercial Marine Serv. Co., 963 F.2d 929 (7th Cir. 1992); Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir. 1992); Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir. 1992).
The district courts, however, have been distinctly less uniform in their decisions. One line of cases holds that the 1991 Act is to operate prospectively;
another line holds that the 1991 Act is to apply retroactively;
and at least one court has opted to wait for resolution of the issue in the higher courts.
In the Northern District of California, there are only two cases which have addressed this issue: Stender v. Lucky Stores, Inc., 780 F. Supp. 1302 (N.D. Cal. 1992), and Lee v. Sullivan, 787 F. Supp. 921 (N.D. Cal. 1992). Both Judge Patel and Magistrate Judge Brazil, respectively, held that the 1991 Act is retroactively applicable to cases which were pending on its effective date, November 21, 1991. In addition, there are four other district court cases in the Ninth Circuit which address the 1991 Act: two determined that the 1991 Act is retroactive;
one ruled that it is not retroactive;
and one declined to address the question of the 1991 Act's retroactivity.
These contradictory holdings are not surprising. The Supreme Court has set forth two inconsistent precedents concerning the approach a court should take when the language and the legislative history of an act are inconclusive on the issue of retroactivity. Under Bradley v. School Board of the City of Richmond, 416 U.S. 696, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974), a court must apply the law in effect at the time it renders its decision, even where the intervening law does not explicitly recite that it is to be applied to pending cases. Id. at 715 (citing Thorpe v. Housing Authority, 393 U.S. 268, 281, 21 L. Ed. 2d 474, 89 S. Ct. 518 (1969)). The Supreme Court has recognized two exceptions to this rule: the presumption does not govern where retrospective application would result in manifest injustice to one of the parties or where there is statutory direction or legislative history to the contrary. Id. at 711. In contrast, the Supreme Court in Bowen v. Georgetown University Hospital, 488 U.S. 204, 102 L. Ed. 2d 493, 109 S. Ct. 468 (1988), held that "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." Id. at 208. Although the Supreme Court has recognized the "apparent tension" in these two lines of cases, it has declined to resolve the issue. See Bonjorno, 494 U.S. 827, 837, 108 L. Ed. 2d 842, 110 S. Ct. 1570 (1990). Consequently, because of the conflicting Supreme Court precedents, "the district courts have reached one conclusion or the other concerning the retroactivity of the 1991 Act, according to whether their Circuit prefers the Bowen or Bradley line of cases." Poston v. Reliable Drug Stores, Inc., 783 F. Supp. 1166, 1169 (S.D. Ill. 1992).
In its decisions, the Ninth Circuit has followed both Bradley13 and Bowen.14 However, the Ninth Circuit appears to have resolved this tension in FDIC v. New Hampshire Ins. Co., 953 F.2d 478 (9th Cir. 1991). In that case, the Ninth Circuit adopted the reasoning in FDIC v. Howse, 736 F. Supp. 1437 (S.D. Tex. 1990), where Judge Lake determined that statutes affecting substantive rights are ordinarily given prospective effect because retroactive application could result in manifest injustice. Id. at 1446 (citing Bradley, 416 U.S. at 711)). On the other hand, statutory changes that are procedural or remedial in nature are usually held to be immediately applicable to pending cases. Id. The Ninth Circuit found Judge Lake's analysis of the concept of limited retroactive application to be persuasive and consistent with its holding in Gonzalez v. Aloha Airlines, Inc., 940 F.2d 1312 (9th Cir. 1991), where it had applied Bradley to an act changing the statute of limitations, even after Bowen. Id. at 1316. Moreover, the Court notes that this concept of limited retroactive application is consistent with the Ninth Circuit's decision in Friel v. Cessna Aircraft Co., 751 F.2d 1037 (9th Cir. 1985), where the court held that:
When a statute is addressed to remedies or procedures and does not otherwise alter substantive rights, it will be applied to pending cases. The purpose behind this rule of construction is clear. Non-retrospective application of a statute 'prevents the assigning of a quality or effect to acts or conduct which they did not have or did not contemplate when they were performed.' Id. at 1039 (quoting Union Pacific R.R. Co. v. Laramie Stock Yards Co., 231 U.S. 190, 199, 58 L. Ed. 179, 34 S. Ct. 101 (1913)). This danger is not present where statutes merely affect remedies or procedures.
Id. The Ninth Circuit's distinction between the prospective application of statutes affecting substantive rights and the retroactive application of statutes addressing remedies or procedures is supported by Supreme Court precedents.
In Bennett v. New Jersey, 470 U.S. 632, 84 L. Ed. 2d 572, 105 S. Ct. 1555 (1985), the Supreme Court refused to apply Bradley and instead presumed a prospective application of the statute. In reaching this conclusion, the Supreme Court indicated that the Bradley rule explicitly limited retroactive application where it "'would infringe upon or deprive a person of a right that had matured or become unconditional.'" Id. at 639 (quoting Bradley, 416 U.S. at 720). Indeed, the Bennett Court noted that the Bradley exception "comports with another venerable rule of statutory interpretation, i.e., that statutes affecting substantive rights and liabilities are presumed to have only prospective effect." Id.
In the present case, the 1991 Act contains substantive, procedural, and remedial provisions. As stated above, a court should not retroactively apply statutory provisions that define the scope of a party's substantive rights and obligations because this would result in a party unfairly being held accountable for laws that were not in effect at the time the relevant conduct was performed. See Bennett, 470 U.S. 632, 84 L. Ed. 2d 572, 105 S. Ct. 1555 ; New Hampshire Ins. Co., 953 F.2d 478; Friel, 751 F.2d 1037. However, a district court's application of newly-enacted trial procedures or damage provisions in effect at the time of the trial does not appear to raise the same concerns as the retroactive application of provisions altering the substantive rights of a party. Hence, a court arguably could apply the procedural and damage provisions of a statute retroactively and the substantive provisions prospectively.
Nevertheless, there are strong countervailing considerations to this argument. Specifically, confusion and disorder would result if courts were required to conduct a provision-by-provision analysis of a statute in order to distinguish between those provisions which regulate procedure and damages as opposed to those provisions which affect substantive rights and obligations. See Mozee, 963 F.2d at 940. Moreover, if a provision-by-provision approach were adopted, courts would have to conduct this type of inquiry for every statute that is unclear on its face and whose legislative history is ambiguous with respect to its application. Indeed, courts would have to analyze each and every provision of a statute to determine if it is to be applied retroactively or prospectively. This sort of piecemeal application of a statute, on a pragmatic level, would result in an administrative nightmare.
Furthermore, as noted above, the Ninth Circuit has held that "when a statute is addressed to remedies or procedures and does not otherwise alter substantive rights, it will be applied to pending cases." Friel, 751 F.2d at 1038 (emphasis added). This holding suggests that if a statute does not exclusively address itself to remedies or procedures, and instead also alters substantive rights, then the statute should not be applied to pending cases. Thus, implicit in this holding is the unwillingness of the Ninth Circuit to construe a statute in a piecemeal fashion.
The 1991 Act at issue in this case contains substantive, procedural, and remedial provisions. Thus, for the Court to apply the damage provisions retroactively, and the substantive provisions of the Act prospectively, would necessarily result in a piecemeal analysis and application of the 1991 Act. Because this method lacks feasibility, the Court declines to embrace such an approach.
Accordingly, the Court finds that the 1991 Act, in its entirety, should be applied prospectively.
In light of the above discussion, this Court finds that section 102 of the Civil Rights Act of 1991 does not apply retroactively to cases pending on the date of its enactment on November 21, 1991. Therefore, this Court concludes that plaintiffs' motion to amend should only be PARTIALLY GRANTED. Accordingly,
IT IS HEREBY ORDERED that:
(1) Plaintiffs' motion to amend the complaint to add a prayer for compensatory and punitive damages to Rita Schroeder's claim under Title VII of the Civil Rights Act of 1964 is DENIED.
(2) Plaintiffs' motion to amend the complaint to remove Laura Autrey from this litigation is GRANTED. Plaintiffs shall file their amended complaint reflecting this change within twenty days of the date this Order is filed. Failure to do so may result in sanctions against plaintiff and/or plaintiff's counsel.
IT IS SO ORDERED.
DATED: August 18, 1992
SAUNDRA BROWN ARMSTRONG
United States District Judge