'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. This danger is not present where statutes merely effect remedies or procedures. [citations omitted throughout]
Friel v. Cessna Aircraft Co., 751 F.2d 1037, 1039 (9th Cir. 1985).
In order to determine whether manifest injustice would result from retroactive application, Bradley requires the court to consider the nature of the parties, the nature of their rights, and the nature of the impact of the change in law upon those rights. Bradley, 416 U.S. at 717. First, this case does not resemble "mere private cases between individuals," where the court should struggle against retroactive application. Id. at 718. Rather it involves the role of federal law in deciding an issue of great public concern: the procedural rights afforded victims of discrimination.
Second, manifest injustice may also result if retroactive application would "deprive a person of a right that had matured or become unconditional." Id. at 720. Plaintiff's rights are enhanced, not limited, by retroactive application of the Act. The defendant has not argued this issue, but I note that a defendant has no unconditional right to limit the remedy available to a plaintiff. As Judge Patel observed, "the Supreme Court has upheld the retroactive application of laws which enhance economic penalties for conduct which occurred prior to the enactment of a statute." Stender, 780 F. Supp. at 1308, citing, Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 728-31, 81 L. Ed. 2d 601, 104 S. Ct. 2709 (1984).
Third, the Supreme Court feared that manifest injustice might result "from the possibility that new and unanticipated obligations may be imposed upon a party without notice or an opportunity to be heard." Bradley, 416 U.S. at 720. This element was addressed by the court in Department of Mental Health:
The parties retain their due process rights to fully litigate the issues, the only difference is that Intervenor will now be entitled to a jury trial on the issues of intentional discrimination and compensatory damages (a right long guaranteed in most litigation by the Constitution and jealously guarded in the law) and to be fully compensated for any harm she suffered by reason of discrimination. By the same token, Defendant retains all its rights not to be subjected to liability, unless and until Intervenor and/or Plaintiff bear the burden of proof and demonstrate intentional discrimination. Compensatory damages may only be recovered where "Respondent . . . engaged in unlawful intentional discrimination . . . ." 1991 Civil Rights Act Section 102(a) amending 42 U.S.C. § 1981a.
785 F. Supp. at 854. There has been no showing in this case that provision of a jury trial and compensatory damages will unfairly impose new and unanticipated obligations on either party. In conclusion, I find that manifest injustice would not result from the retroactive application of the Civil Rights Act of 1991.
For the foregoing reasons, the Navy's motion to dismiss is denied. The denial is without prejudice to raise the issue again if the Ninth Circuit rules directly on this point. The plaintiff's objections to the declarations submitted by the Navy are denied as moot.
IT IS SO ORDERED:
JOHN S. RHOADES, SR.
UNITED STATES DISTRICT JUDGE