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COHEN v. AUSTIN

June 28, 1993

ROBERT N. COHEN
v.
RICHARD G. AUSTIN, ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION



The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER

 JOYNER, J.

 June 28, 1993

 The defendant, Richard G. Austin, Administrator, Government Services Administration, has filed a motion to strike the plaintiff's demand for a jury trial and compensatory damages in this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. The issue before this Court is whether the 1991 amendments to the Civil Rights Act of 1964, Pub.L.No. 102-166, 105 Stat. 1071 (1991), which allow for compensatory damages and a jury trial, apply retroactively as the alleged conduct in this action occurred prior to the effective date of these amendments. For the reasons that follow, the motion will be granted.

 Sections 102(a)(1) and 102(c)(1) of the Civil Rights Act of 1991 ("the Act"), codified at 42 U.S.C.A. §§ 1981a (a)(1) and 1981 a(c)(1), allow for compensatory and punitive damages and a jury trial in a Title VII action. *fn1" Prior to the Act, only equitable relief was allowed under Title VII.

 Although the Third Circuit has not as yet addressed the retroactivity of the Act, eight circuit courts have ruled on the question with seven finding in favor of prospective application. *fn2" Likewise, the majority of courts in the Third Circuit which have addressed the issue of retroactivity have concluded that the Act should not apply retroactively. *fn3"

 1. Legislative Intent/History

 An analysis of both the language of the Act and its legislative history does not conclusively reveal whether retroactive application was intended. Language throughout the Act provides conflicting indications as to its retroactivity. Section 402(a) of the Act states "except as otherwise specifically provided, this Act and the amendments made by this Act shall take effect upon enactment." Pub.L.No. 102-166, § 402(a), 105 Stat. 1099. This statement is not conclusive as it may be interpreted to mean the Act applies to "conduct which occurred after the enactment, . . . [or] cases filed after the enactment, . . . [or] all proceedings beginning after the enactment, . . . [or] to all pending cases at any stage of the proceedings." Mozee v. American Commercial Marine Service Co., 963 F.2d 929, 932 (7th Cir. 1992); Aiken v. Bucks Ass'n for Retarded Citizens, Inc., 799 F. Supp. 522, 527 (E.D.Pa. 1992); Kimble v. DPCE, Inc., 784 F. Supp. 250, 251 (E.D.Pa. 1992).

 On the other hand, sections 109(c) and 402(b) contain language which explicitly forbids retroactive application of their provisions, which could indicate that other provisions of the Act should be applied retroactively by implication. However, courts have found that these sections were so drafted merely to provide extra assurance that their provisions would only apply to post-enactment conduct. *fn4" Aiken, 799 F. Supp. at 527. Finally § 102(d), Pub.L.No. 102-166, § 102(d), 105 Stat. 1073, which in defining "complaining party" states "a person who may bring an action or proceeding under Title VII. . . ." could indicate the Act is only to apply to plaintiffs who have not as yet brought suit. See Van Meter v. Barr, 778 F. Supp. 83, 85 (D.D.C. 1991). Because the provisions of the Act are susceptible to various reasonable interpretations, the language of the Act is ambiguous as to retroactivity.

 Likewise, the Act's legislative history is inconclusive on the issue of retroactivity as it includes statements both supporting retroactive application, and adamant statements in favor of prospective application only. See Johnson v. Uncle Ben's, Inc., 965 F.2d 1363, 1372 (5th Cir. 1992); Mozee, 963 F.2d at 934 (7th Cir. 1992); Vogel v. City of Cincinnati, 959 F.2d 594, 598 (6th Cir. 1992). It has also been noted that President Bush's veto of the 1990 Civil Rights Act which was explicitly retroactive, is an indication for prospective application of the Act, but this is also not dispositive. Fray v. Omaha World Herald Co., 960 F.2d 1370, 1378 (8th Cir. 1992); Savko v. Port Auth. of Allegheny County, 800 F. Supp. 268, 271 (W.D.Pa. 1992).

 2. Supreme Court on Retroactivity

 There are two conflicting lines of case law from the Supreme Court on retroactive application of legislation emanating from Bradley v. School Board of Richmond, 416 U.S. 696, 94 S. Ct. 2006, 40 L. Ed. 2d 476 (1974) and Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 109 S. Ct. 468, 102 L. Ed. 2d 493 (1988). In Bradley, the Supreme Court held that a statute should be applied retroactively unless it would result in manifest injustice or there is clear legislative intent to the contrary. Bradley, 416 U.S. at 710, 94 S. Ct. at 2016. While in Bowen, 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." Bowen, 488 U.S. at 208, 109 S. Ct. at 471. In Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 110 S. Ct. 1570, 108 L. Ed. 2d 842 (1990), the Court, though recognizing this "apparent tension", did not take the opportunity to reconcile Bradley and Bowen as they resolved their issue on a finding of clear congressional intent. Justice Scalia's concurrence in Kaiser advocated prospective application of ...


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