III. 42 U.S.C. § 1981
42 U.S.C. § 1981 provides in pertinent part: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts." In 1989, the United States Supreme Court held that section 1981's prohibition against racial discrimination in the making and enforcing of contracts "covers only conduct at the initial formation of the contract," and does not apply to discriminatory post-formation conduct. Patterson v. McLean Credit Union, 491 U.S. 164, 180, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989). Because plaintiff's § 1981 claim is based entirely upon discriminatory conditions of employment and the termination of his contract rather than its formation, Patterson requires that it be dismissed.
In the Civil Rights Act of 1991 ("CRA"), Pub. L. No. 102-166, Congress responded to Patterson by amending § 1981 to provide relief from discrimination in the "making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship." Civil Rights Act of 1991, § 101(2)(b); 42 U.S.C. § 1981(b). CRA became effective on November 21, 1991, approximately six months after the allegedly discriminatory discharge of which plaintiff complains. Therefore, CRA applies to plaintiff's § 1981 claim, and will save the claim from DRC's motion to dismiss, only if it applies retroactively.
The third circuit has not yet decided whether CRA should be applied retroactively. All but one of the courts of appeals which have confronted the issue have held that the Act is not retroactive. See Butts v. City of New York Dept. of Housing Preservation and Development, 990 F.2d 1397 (2d Cir. 1993); Johnson v. Uncle Ben's Inc., 965 F.2d 1363 (5th Cir. 1992); Harvis v. Roadway Express, Inc., 973 F.2d 490 (6th Cir. 1992); cert. granted sub nom., Rivers v. Roadway Express, Inc., 113 S. Ct. 1250 (1993); Banas v. American Airlines, 969 F.2d 477 (7th Cir. 1992); Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir. 1992); Baynes v. AT&T Technologies, Inc., 976 F.2d 1370 (11th Cir. 1992); Gersman v. Group Health Ass'n., Inc., 298 U.S. App. D.C. 23, 975 F.2d 886 (D.C. Cir. 1992). Contra Davis v. City and County of San Francisco, 976 F.2d 1536 (9th Cir. 1992), vacated in part on other grounds on denial of rehearing, 984 F.2d 345 (9th Cir. 1993). Additionally, most decisions by courts in this District have held that the Act only applies prospectively. See Matthews v. Freedman, 1993 U.S. Dist. LEXIS 7662, Civil Action No. 88-3127, 1992 WL 204164 at *4 (E.D. Pa. June 8, 1993) (citing cases).
Although the weight of authority is against applying the Act retroactively, the Court of Appeals for the Ninth Circuit, in Davis, supra, gave solid reasons for its holding that the Act is retroactive. The Davis court found that the legislative history of the act contains numerous contradictions on the topic of retroactivity and casts no real light upon Congress's intent. Focussing on the language of the Act, the Davis court noted that the Act explicitly prohibits retroactivity with regard to conduct covered by its sections 402(b) and 109(c).
Applying the "elementary canon of construction that a statute should be interpreted so as not to render one part inoperative," South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 510 n. 22, 106 S. Ct. 2039, 2046 n. 22, 90 L. Ed. 2d 490 (1986) (quoting Colautti v. Franklin, 439 U.S. 379, 392, 99 S. Ct. 675, 684, 58 L. Ed. 2d 596 (1979)), the Davis court concluded that the rest of the Act must be read to apply retroactively. Davis 976 F.2d at 1551. Otherwise, the specific language barring retroactive application of sections 402(b) and 109(c) is redundant and pointless. Davis 976 F.2d at 1553.
The third circuit, in acknowledgment of the importance of the question of whether CRA is retroactive, has voted to decide the issue en banc. Sinnovich v. Port Authority of Allegheny County, 983 F.2d 1266, 1993 U.S. App. LEXIS 818, 1993 WL 13604 (3d Cir. 1993). Due to the conflict in authority in the courts of appeals and the pending resolution of this issue before our own court of appeals, this court will not decide the retroactivity issue at this time. Instead, DRC's motion to dismiss Richardson's § 1981 claim will be denied without prejudice, and we will await the outcome of Sinnovich, which should be dispositive of the issue.
AND NOW, this 27th day of July, 1993, upon consideration of defendant's motion to dismiss and plaintiff's response thereto, it is hereby ORDERED:
1. Defendant's motion to dismiss plaintiff's Title VII claim is DENIED.
2. Defendant's motion to dismiss plaintiff's 42 U.S.C. § 1981 claim is DENIED WITHOUT PREJUDICE.
BY THE COURT:
James T. Giles, J.