The opinion of the court was delivered by: JAMES F. MCCLURE, JR.
On October 7, 1991, plaintiff Judith S. Tyler filed this action under the Equal Pay Act 29 U.S.C. § 206(d) et seq. and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq., alleging sex discrimination. Tyler has filed a motion to amend her complaint to include requests for compensatory and punitive damages and a demand for a jury trial as authorized by Section 102 of the Civil Rights Act of 1991, Pub L. No. 102-166, 105 Stat. 1071-1100 ("Act" or "1991 Act"), which was enacted on November 21, 1991.
The question of whether the 1991 Act is applicable to cases pending at the time the Act was passed has plagued district courts for the past six months. Despite the numerous opportunities courts have been afforded to address this issue, no consensus opinion has developed. Although the three circuit courts which have had the opportunity to address this issue have all held that the Act has no retroactive effect, each court based its decision on a different rationale. See Mozee v. American Commercial Marine Service Company, 963 F.2d 929 (based on general presumption of prospective application, the court held that the Act does not apply to case pending on appeal during its enactment); Fray v. Omaha world Herald Company, Nos. 91-2439, 91-2443 and 91-2713 (8th Cir. April 3, 1992) (based on legislative intent, court held that Section 101 of the Act should not be applied to pending cases or other pre-enactment conduct); Vogel v. The City of Cincinnati, 959 F.2d 594 (based on the Equal Employment Opportunity Commission's policy statement that it would not seek damages under the 1991 Act for events occurring prior to its enactment, court held that the Act was not retroactive). It should be noted that each of these panel decisions of the circuit courts was accompanied by a dissenting opinion on the issue of retroactivity.
Much of the confusion as to the retroactive effect of the 1991 Act has been generated by an apparent conflict between two Supreme Court cases. In Bowen v. Georgetown University, 488 U.S. 204, 102 L. Ed. 2d 493, 109 S. Ct. 468 (1988), the Supreme Court stated:
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 (citations omitted). However, in a previous decision the Supreme Court stated that "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. Bradley v. Richmond School Board, 416 U.S. 696, 711, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974).
The Supreme Court noted the tension between these decisions in Kaiser Aluminum v. Bonjorno, 494 U.S. 827, 108 L. Ed. 2d 842, 110 S. Ct. 1570 (1990), but declined to make any attempt to reconcile the inconsistencies. Instead, the court stated that it need not "reconcile the two lines of precedent, represented by Bradley, supra, and Georgetown, supra, because under either view, where the congressional intent is clear, it governs." Kaiser Aluminum, supra, at 837 (citations omitted).
To add to the confusion, after much debate as to the retroactive effect of the 1991 Act, Congress reached a compromise which effectively left the decision up to the courts.
The compromise was expressed on the Congressional Record by the co-sponsors of the Act, Senators Kennedy and Danforth.
Mr. President, I am pleased that Senator KENNEDY has agreed with almost all of the original cosponsors, interpretative memorandum. I understand that he questions only the discussion in our memorandum that the original cosponsors, who are the authors of the effective date provision, do not intend for the bill to have any retroactive effect or application.
My review of Supreme Court case law supports my reading that in the absence of an explicit provision to the contrary, no new legislation is applied retroactively. Rather, new statutes are to be given prospective application only, unless Congress explicitly directs otherwise, which we have not done in this instance. Support for this proposition is derived from Justice Scalia's concurring opinion in Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 110 S. Ct. 1570, 1579, 108 L. Ed. 2d 842 (1990), and the unanimous opinion of the Supreme Court in Bowen v. ...