Rights Act expressly provides that in two instances it is to operate prospectively, see §§ 109(c) and 402(b), Congress must have intended that the balance of the Act apply retroactively.
The court concludes that it is far more likely that without the positive assurance of prospectivity provided to American corporations abroad by § 109(c) and Wards Cove Company by § 402(b) the Act could not have passed, and that Congress otherwise left it to the courts to assess which other provisions would apply prospectively or retroactively. See Fray, 960 F.2d at 1376. The court finds that the language of the 1991 Act does not evince a clear intent regarding retroactivity generally,
and that the legislative history strongly suggests that Congress agreed to disagree about retroactivity and to leave the issue to the courts to decide.
In the absence of a clear Congressional directive, the court must assess the retroactivity of the Act by referring to relevant judicial precedent. In Bradley v. Richmond School Board, 416 U.S. 696, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974), the Supreme Court held that an Education Amendment of 1972 authorizing an award of attorney fees to prevailing plaintiffs in school desegregation suits applied to cases pending at the time of enactment. In Thorpe v. Housing Authority of Durham, 393 U.S. 268, 21 L. Ed. 2d 474, 89 S. Ct. 518 (1969), the Court held that new federal public housing eviction procedures applied to pending cases. The Court stated that absent contrary legislative direction or unless it would result in "manifest injustice," new laws should be applied to pending cases. Bradley, 416 U.S. at 711, 715; Thorpe, 393 U.S. at 281-82.
In Bennett v. New Jersey, 470 U.S. 632, 639, 84 L. Ed. 2d 572, 105 S. Ct. 1555 (1985), the Supreme Court stated that statutes which affect "substantive rights and liabilities" are presumptively prospective and held that substantive Education Amendments were not to be applied retroactively. In Bowen v. Georgetown University Hosp., 488 U.S. 204, 102 L. Ed. 2d 493, 109 S. Ct. 468 (1988), the Court held that new Medicare reimbursement entitlement regulations should not be applied retroactively and stated that new statutes and regulations are presumptively prospective. Id. at 208. In Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 108 L. Ed. 2d 842, 110 S. Ct. 1570 (1990), the Court noted an "apparent tension" between Bradley and Bowen. Id. at 837.
If one focuses on the specific holdings of these cases and thus the context in which the statements about retroactivity were made, the tension between the lines of cases may indeed be more "apparent" than real. Particularly when viewed in light of the ancient common law hostility to retroactive application of new laws, it fairly appears that the Supreme Court has distinguished between new procedures and remedies for existing causes of action which may be given retroactive effect unless to do so would be clearly unjust, and new substantive statutory rights and obligations which are not to be applied retroactively absent a clear legislative mandate to the contrary. See Gersman, 975 F.2d at 899; Johnson, 965 F.2d at 1374. This distinction is consistent with the rationale underlying the general hostility to retrospective legislation and the notion of fundamental fairness that one should not be held liable on a cause of action which did not exist at the time of the conduct on which it is premised.
Indeed, even in Bradley, the Court evinced concern about disrupting legal relationships among private parties and suggested that the retrospective alteration of vested rights or imposition of new obligations could result in "manifest injustice." Bradley, 416 U.S. at 720. In Davis v. Omitowoju, 883 F.2d 1155, 1170-71 (3d Cir. 1989), the Court stated that new statutes should not be applied retroactively when to do so would affect prior existing rights or obligations.
The retroactive application of § 101(2)(b) of the Act to pre-formation conduct would affect the substantive rights and obligations of the parties. See Aiken, 799 F. Supp. at 531 (Act affects rights and obligations of parties); Graham v. State Farm Mutual Automobile Insurance Co., 1992 WL 334024 at *4 (E.D. Pa. November 2, 1992) (Section 1981 as amended by Act alters substantive rights). At the time it allegedly occurred, the conduct of which plaintiff complains did not support a cause of action under § 1981. The court will not apply § 101(b)(2) retroactively to sustain such a cause of action now. Plaintiff's § 1981 claim will be dismissed.
To sustain his § 1983 claim, plaintiff must show that he was deprived of a federally secured right by one acting under color of state law. See Rendell-Baker v. Kohn, 457 U.S. 830, 838, 73 L. Ed. 2d 418, 102 S. Ct. 2764 (1982); Krynicky v. University of Pittsburgh, 742 F.2d 94, 97 (3d Cir. 1984). Plaintiff does not allege that defendant corporation is a state actor or has such a symbiotic relationship with the state effectively to be an instrumentality of the state.
To sustain his § 1985 claim, plaintiff must establish that defendants conspired to violate his civil rights for reasons of race or other class-based animus. See Pratt v. Thornburgh, 807 F.2d 355, 357 (3d Cir. 1986), cert. denied, 484 U.S. 839, 98 L. Ed. 2d 83, 108 S. Ct. 125 (1987). Plaintiff does not allege that defendant conspired with anyone to discriminate against him. Plaintiff argues that it should be "obvious" that in denying him his rights, defendant "acted at all times through its agents, servants, workmen and employees." A corporation and its agents acting on its behalf or employees in the performance of their corporate functions cannot conspire. See Doherty v. American Motors Corp., 728 F.2d 334, 339-40 (6th Cir. 1984). That a corporate action reflects a collective decision by several corporate officials does not satisfy the conspiracy element of § 1985. See Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir. 1972).
Accordingly, plaintiff's §§ 1983 and 1985 claims will also be dismissed. An appropriate order will be entered.
AND NOW, this 8th day of March, 1993, upon consideration of defendant's Motion to Dismiss and plaintiff's response thereto, consistent with the accompanying memorandum, IT IS HEREBY ORDERED that said Motion is GRANTED and the above-captioned case is DISMISSED.
BY THE COURT:
JAY C. WALDMAN, J.