MAURICE RIVERS AND ROBERT C. DAVISON, PETITIONERS v. ROADWAY EXPRESS, INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued October 13, 1993
Decided April 26, 1994
Petitioners filed a complaint under, inter alia, 42 U.S.C. 1981, alleging that respondent, their employer, had fired them on baseless charges because of their race and because they had insisted on the same procedural protections in disciplinary proceedings that were afforded white employees. Before the trial, this Court issued Patterson v. McLean Credit Union, 491 U.S. 164, 171 , holding that 1981's prohibition against racial discrimination in the making and enforcement of contracts does not apply to conduct which occurs after the formation of a contract and which does not interfere with the right to enforce established contract obligations. The District Court relied on Patterson in dismissing petitioners' discriminatory discharge claims. While their appeal was pending, the Civil Rights Act of 1991 (1991 Act or Act) became law, 101 of which defines 1981's "make and enforce contracts" phrase to embrace all phases and incidents of the contractual relationship, including discriminatory contract terminations. The Court of Appeals ruled, among other things, that 1981 as interpreted in Patterson, not as amended by 101, governed the case.
Section 101 does not apply to a case that arose before it was enacted. Pp. 4-15.
STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, in which KENNEDY and THOMAS, JJ., joined. BLACKMUN, J., filed a dissenting opinion. [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 1]
JUSTICE STEVENS delivered the opinion of the Court.
Section 101 of the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, defines the term "make and enforce contracts" as used in 1 of the Civil Rights Act of 1866, Rev. Stat. 1977, 42 U.S.C. 1981, to include "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." We granted certiorari to decide whether 101 applies to a case that arose before it was enacted. We hold that it does not.
Petitioners Rivers and Davison were employed by respondent Roadway Express, Inc., as garage mechanics. On the morning of August 22, 1986, a supervisor directed them to attend disciplinary hearings later that day. Because they had not received the proper notice guaranteed by their collective bargaining agreement, petitioners refused to attend. They were suspended for two days, but filed grievances and were awarded two days' backpay. Respondent then held another disciplinary hearing, which petitioners also refused to attend, [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 2] again on the ground that they had not received proper notice. Respondent thereupon discharged them.
On December 22, 1986, petitioners filed a complaint alleging that respondent had discharged them because of their race in violation of 42 U.S.C. 1981. 1 They claimed, inter alia, that they had been fired on baseless charges because of their race and because they had insisted on the same procedural protections afforded white employees.
On June 15, 1989, before the trial commenced, this Court announced its decision in Patterson v. McLean Credit Union, 491 U.S. 164 . Patterson held that 1981 "does not apply to conduct which occurs after the formation of a contract and which does not interfere with the right to enforce established contract obligations." Id., at 171. Relying on Patterson, the District Court held that none of petitioners' discriminatory discharge claims were covered by 1981, and dismissed their claims under that section. After a bench trial on petitioners' Title VII claims, the District Court found that petitioners had been discharged for reasons other than their race, and entered judgment for respondent.
On appeal, petitioners contended that the District Court had misconstrued their complaint: they had not merely claimed discriminatory discharge, but more specifically had alleged that respondents had retaliated against them, because of their race, for attempting to enforce their procedural rights under the collective bargaining agreement. Because that allegation related to "enforcement" of the labor contract, petitioners [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 3] maintained, it stated a 1981 claim even under Patterson's construction of the statute. While petitioners' appeal was pending, the Civil Rights Act of 1991 became law. Section 101 of that Act provides that 1981's prohibition against racial discrimination in the making and enforcement of contracts applies to all phases and incidents of the contractual relationship, including discriminatory contract terminations. 2 Petitioners accordingly filed a supplemental brief advancing the argument that the new statute applied in their case. The Court of Appeals agreed with petitioners' first contention but not the second. Accordingly, it ruled that 1981 as interpreted in Patterson, not as amended by 101, governed the case, and remanded for a jury trial [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 4] limited to petitioners' "discrimination in contract enforcement" claim. See Harvis v. Roadway Express, Inc., 973 F.2d 490 (CA6 1992).
We granted certiorari, 507 U.S. ___ (1993), on the sole question whether 101 of the 1991 Act applies to cases pending when it was enacted and set the case for argument with Landgraf, ante, p. ___.
In Landgraf, we concluded that 102 of the 1991 Act does not apply to cases that arose before its enactment. The reasons supporting that conclusion also apply to 101, and require rejection of two of petitioners' submissions in this case. First, these petitioners, like the petitioner in Landgraf, rely heavily on a negative implication argument based on 402(a), 109(c) and 402(b) of the Act. That argument, however, is no more persuasive as to the application of 101 to preenactment conduct than as to that of 102. See ante, at ___ (slip op., at 11-18).
Second, petitioners argue that the case is governed by Bradley v. Richmond School Bd., 416 U.S. 696 (1974), rather than the presumption against statutory retroactivity. We are persuaded, however, that the presumption is even more clearly applicable to 101 than to 102. Section 102 altered the liabilities of employers under Title VII by subjecting them to expanded monetary liability, but it did not alter the normative scope of Title VII's prohibition on workplace discrimination. In contrast, because 101 amended 1981 to embrace all aspects of the contractual relationship, including contract terminations, it enlarged the category of conduct that is subject to 1981 liability.
Moreover, 1981 (and hence 101) is not limited to employment; because it covers all contracts, see, e.g., Runyon v. McCrary 427 U.S. 160 (1976), Tillman v. Wheaton-Haven Recreation Assn., Inc., 410 U.S. 431 (1973), a substantial part of 101's sweep does not [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 5] overlap Title VII. In short, 102 has the effect not only of increasing liability, but also of establishing a new standard of conduct. 3 Accordingly, for reasons we stated in Landgraf, the important new legal obligations 101 imposes bring it within the class of laws that are presumptively prospective.
Petitioners rely heavily on an argument that was not applicable to 102 of the 1991 Act, the section at issue in Landgraf. They contend that 101 should apply to their case because it was "restorative" of the understanding of 1981 that prevailed before our decision in Patterson. Petitioners advance two variations on this theme: Congress' evident purpose to "restore" pre-Patterson law indicates that it affirmatively intended 101 to apply to cases arising before its enactment; 4 moreover, there is a "presumption in favor of application of restorative statutes" to cases arising before their enactment. Brief for Petitioners 37.
Congress' decision to alter the rule of law established in one of our cases - as petitioners put it, to "legislatively overrul[e]," see id., at 38 - does not, by itself, reveal whether Congress intends the "overruling" statute to apply retroactively to events that would otherwise be governed by the judicial decision. 5 A legislative [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 6] response does not necessarily indicate that Congress viewed the judicial decision as "wrongly decided" as an interpretive matter. Congress may view the judicial decision as an entirely correct reading of prior law - or it may be altogether indifferent to the decision's technical merits - but may nevertheless decide that the old law should be amended, but only for the future. Of course, Congress may also decide to announce a new rule that operates retroactively to govern the rights of parties whose rights would otherwise be subject to the rule announced in the judicial decision. Because retroactivity raises special policy concerns, the choice to enact a statute that responds to a judicial decision is quite distinct from the choice to make the responding statute retroactive.
Petitioners argue that the structure and legislative history of 101 indicate that Congress specifically intended to "restore" prior law even as to parties whose rights would otherwise have been determined according to Patterson's interpretation of 1981. Thus, 101 operates as a gloss on the terms "make and enforce contracts," the original language of the Civil Rights Act of 1866 that was before this Court in Patterson. Petitioners also point to evidence in the 1991 Act's legislative history indicating legislators' distress with Patterson's construction of 1981 and their view that our decision had narrowed a previously established understanding of that provision. 6 Taken together, petitioners [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 7] argue, this evidence shows that it was Congress' sense that Patterson had cut back the proper scope of 1981, and that the new legislation would restore its proper scope. Regardless of whether that sense was right or wrong as a technical legal matter, petitioners maintain, we should give it effect by applying 101's broader definition of what it means to "make and enforce" a contract, rather than Patterson's congressionally disapproved reading, to cases pending upon 101's enactment.
We may assume, as petitioners argue, that 101 reflects congressional disapproval of Patterson's interpretation of 1981. We may even assume that many or [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 8] even most legislators believed that Patterson was not only incorrectly decided, but also represented a departure from the previously prevailing understanding of the reach of 1981. Those assumptions would readily explain why Congress might have wanted to legislate retroactively, thereby providing relief for the persons it believed had been wrongfully denied a 1981 remedy. Even on those assumptions, however, we cannot find in the 1991 Act any clear expression of congressional intent to reach cases that arose before its enactment.
The 1990 civil rights bill that was vetoed by the President contained an amendment to 1981, identical to 101 of the 1991 Act, that assuredly would have applied to pending cases. See Civil Rights Act of 1990, S. 2104, 101st Cong., 2d Sess., 12 (1990). See also Landgraf, ante, at ___, n. 8 (slip op., at 9-10, n.8). In its statement of purposes, the bill unambiguously declared that it was intended to "respond to the Supreme Court's recent decisions by restoring the civil rights protections that were dramatically limited by those decisions," S. 2104, 2(b)(1) (emphasis added), and the section responding to Patterson was entitled "Restoring Prohibition Against All Racial Discrimination in the Making and Enforcement of Contracts." Id. 12 (emphasis added). 7 [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 9] More directly, 15(a)(6) of the 1990 bill expressly provided that the amendment to 1981 "shall apply to all proceedings pending on or commenced after" the date of the Patterson decision.
The statute that was actually enacted in 1991 contains no comparable language. Instead of a reference to "restoring" preexisting rights, its statement of purposes describes the Act's function as "expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination." Civil Rights Act of 1991, 3(4), 105 Stat. 1071 (emphasis added). Consistently with that revised statement of purposes, the Act lacks any direct reference to cases arising before its enactment, or to the date of the Patterson decision. Taken by itself, the fact that 101 is framed as a gloss on 1981's original "make and enforce contracts," does not demonstrate an intent to apply the new definition to past acts. Altering statutory definitions, or adding new definitions of terms previously undefined, is a common way of amending statutes, and simply does not answer the retroactivity question. Thus, the text of the Act does not support the argument that 101 of the 1991 Act was intended to "restore" prior understandings of 1981 as to cases arising before the 1991 Act's passage.
The legislative history of the 1991 Act does not bridge the gap in the text. The statements that most strongly support such coverage are found in the debates on the 1990 bill. See n. 6, supra. Such statements are of questionable relevance to the 1991 Act, however, because the 1990 provision contained express retroactivity provisions that were omitted from the 1991 legislation. The statements relating specifically to 101 of the 1991 Act do not provide reliable evidence on whether Congress intended to "restore" a broader meaning of 1981 with respect to pending cases otherwise governed by Patterson's construction of the scope of the phrase "make [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 10] and enforce contracts." 8 Thus, the fact that 101 was enacted in response to Patterson does not supply sufficient evidence of a clear congressional intent to overcome the presumption against statutory retroactivity.
A lack of clear congressional intent would not be dispositive if, as petitioners argue, 101 is the kind of restorative statute that should presumptively be applied to pending cases. Petitioners maintain that restorative statutes do not implicate fairness concerns relating to retroactivity at least when, as is the case in this litigation, the new statute simply enacts a rule that the parties believed to be the law when they acted. 9 [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 11] Indeed, amici in support of petitioners contend, fairness concerns positively favor application of 101 to pending cases because the effect of the Patterson decision was to cut off, after the fact, rights of action under 1981 that had been widely recognized in the lower courts, and under which many victims of discrimination had won damage judgments prior to Patterson. See Brief for NAACP et al. as Amici Curiae 7-14.
Notwithstanding the equitable appeal of petitioners' argument, we are convinced that it cannot carry the day. Our decisions simply do not support the proposition that we have espoused a "presumption" in favor of retroactive application of restorative statutes. Petitioners invoke Frisbie v. Whitney, 9 Wall. 187 (1870), which involved a federal statute that enabled Frisbie and others to acquire property they had occupied and thought they owned prior to 1862, when, in another case, this Court held that the original grant of title by the Mexican government was void. 10 The new law in effect "restored" rights that Frisbie reasonably and in good faith thought he possessed before the surprising announcement of our decision. In the Frisbie case, however, the question was whether Congress had the power to enact legislation that had the practical effect of restoring the status quo retroactively. As the following passage from Frisbie demonstrates, there was no question about Congress' actual intent: [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 12]
In the case before us today, however, we do not question the power of Congress to apply its definition of the term "make and enforce contracts" to cases arising before the 1991 Act became effective, or, indeed, to those that were pending on June 15, 1989, when Patterson was decided. The question is whether Congress has manifested such an intent. Unlike the narrow error-correcting statutes at issue in Frisbie and Freeborn, 101 is plainly not the sort of provision that must be read to apply to pending cases "because a contrary reading would render it ineffective." Landgraf, ante, at ___ (slip op., at 43). Section 101 is readily comprehensible, and entirely effective, even if it applies only to conduct occurring after its effective date. A restorative purpose may be relevant to whether Congress specifically intended a new statute to govern past conduct, but we do not "presume" an intent to act retroactively in such cases. 11 We still require clear evidence of intent to [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 13] impose the restorative statute "retroactively." Section 101, and the statute of which it is a part, does not contain such evidence.
Congress, of course, has the power to amend a statute that it believes we have misconstrued. It may even, within broad constitutional bounds, make such a change retroactive, and thereby undo what it perceives to be the [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 15] undesirable past consequences of a misinterpretation of its work product. No such change, however, has the force of law unless it is implemented through legislation. Even when Congress intends to supersede a rule of law embodied in one of our decisions with what it views as a better rule established in earlier decisions, its intent to reach conduct preceding the "corrective" amendment must clearly appear. We cannot say that such an intent clearly appears with respect to 101. For this reason, and because it creates liabilities that had no legal existence before the Act was passed, 101 does not apply to preenactment conduct.
Accordingly, the judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
[ Footnote 2 ] The full text of 101, which is entitled "Prohibition Against All Racial Discrimination in the Making And Enforcement of Contracts," reads as follows:
[ Footnote 3 ] Even in the employment context, 1981's coverage is broader than Title VII's, for Title VII applies only to employers with 15 or more employees, see 42 U.S.C. 2000e(b), whereas 1981 has no such limitation.
[ Footnote 4 ] See Brief for Petitioners 35 ("Congress sought to restore what it and virtually all the lower courts thought had been the reach of 1981 prior to Patterson").
[ Footnote 5 ] Congress frequently "responds" to judicial decisions construing [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 6] statutes, and does so for a variety of reasons. According to one commentator, between 1967 and 1990, the legislature "overrode" our decisions at an average of "ten per Congress." Eskridge, Overriding Supreme Court Statutory Interpretation Decisions, 101 Yale L. J. 331, 338 (1991). Seldom if ever has Congress responded to so many decisions in a single piece of legislation as it did in the Civil Rights Act of 1991. See Landgraf, ante, at ___ (slip op., at 4-5).
[ Footnote 6 ] Thus, for example, the Senate Report on the 1990 civil rights bill that was passed by Congress but vetoed by the President stated: [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 7]
[ Footnote 7 ] We do not suggest that Congress' use of the word "restore" necessarily bespeaks an intent to restore retroactively. For example, Congress might, in response to a judicial decision that construed a criminal statute narrowly, amend the legislation to broaden its scope; the preamble or legislative history of the amendment might state that it was intended to "restore" the statute to its originally intended scope. In such a situation, there would be no need to read Congress' use of the word "restore" as an attempt to circumvent the Ex Post Facto Clause. Instead, "to restore" might sensibly be read as meaning "to correct, from now on." The 1990 bill did not suffer from such ambiguity, however, for it contained other provisions that made pellucidly clear that Congress contemplated the broader, retroactive kind of "restoration."
[ Footnote 8 ] The legislative history of the 1991 Act reveals conflicting views about whether 101 would "restore" or instead "enlarge" the original scope of 1981. Compare, e.g., 137 Cong. Rec. H9526 (Nov. 7, 1991) (remarks of Rep. Edwards), and id., at H9543 (Nov. 7, 1991) (remarks of Rep. Hyde). The history also includes some debate over the proper test for courts to apply - specifically, the "Bradley" presumption or the "Bowen" presumption, see Landgraf, ante, at ___ (slip op., at 18-20) - to determine the applicability of the various provisions of the Act to pending cases. Compare, e.g., 137 Cong.Rec. S15963 (Nov. 5, 1991) (remarks of Sen. Kennedy) (citing Bradley test), and id., at S15483 (Oct. 30, 1991) (remarks of Sen. Danforth) (favoring Bowen test). As we noted in Landgraf, ante, at ___ (slip op., at 16-18), the legislative history reveals that retroactivity was recognized as an important and controversial issue, but that history falls far short of providing evidence of an agreement among legislators on the subject.
[ Footnote 9 ] They point out that respondent has no persuasive claim to unfair surprise, because, at the time the allegedly discriminatory discharge occurred, the Sixth Circuit precedent held that 1981 could support a claim for discriminatory contract termination. See, e.g., Cooper v. North Olmstead, 795 F.2d 1265, 1270, n. 3 (CA6 1986); Leonard v. City of Frankfort Elec. and Water Plant Bd., 752 F.2d 189, 195 (CA6 1985). See also Mozee v. American Commercial Marine Service Co., 963 F.2d 929, 941 (CA7 1992) (Cudahy, J., dissenting); Gersman v. Group Health Assn., Inc., 975 F.2d 886, 907-908 (CADC [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 11] 1992) (Wald, J., dissenting), cert. pending, No. 92-1190. We note, however, that this argument would not apply to any cases arising after Patterson was decided but before the 1991 Act's enactment.
[ Footnote 10 ] See United States v. Vallejo, 1 Black 541 (1862). In his dissent in that case, Justice Grier stated that he could not "agree to confiscate the property of some thousand of our fellow citizens, who have purchased under this title and made improvements to the value of many millions, on suspicions first raised here as to the integrity of a grant universally acknowledged to be genuine in the country where it originated." Id., at 555-556 (emphasis in original).
[ Footnote 11 ] See N. Singer, Sutherland on Statutory Construction, 27.04, p. 472 (5th ed. 1993) ("The usual purpose of a special interpretive [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 13] statute is to correct a judicial interpretation of a prior law which the legislature considers inaccurate. Where such statutes are given any effect, the effect is prospective only").
[ Footnote 12 ] When Congress enacts a new statute, it has the power to decide when the statute will become effective. The new statute may govern from the date of enactment, from a specified future date, or even from an expressly announced earlier date. But when this Court construes a statute, it is explaining its understanding of what the statute has meant continuously since the date when it became law. In statutory cases the Court has no authority to depart from the congressional command setting the effective date of a law that it has enacted. Thus, it is not accurate to say that the Court's decision in Patterson "changed" the law that previously prevailed in the Sixth Circuit when this case was filed. Rather, given the structure of our judicial system, the Patterson opinion finally decided what 1981 had always meant and explained why the Courts of Appeals had misinterpreted the will of the enacting Congress. [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 1]
JUSTICE SCALIA, with whom JUSTICE KENNEDY and JUSTICE THOMAS join, concurring in the judgments.
I of course agree with the Court that there exists a judicial presumption, of great antiquity, that a legislative enactment affecting substantive rights does not apply retroactively absent clear statement to the contrary. See generally Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 840 (1990) (SCALIA, J., concurring). The Court, however, is willing to let that clear statement be supplied, not by the text of the law in question, but by individual legislators who participated in the enactment of the law, and even legislators in an earlier Congress which tried and failed to enact a similar law. For the Court not only combs the floor [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 2] debate and committee reports of the statute at issue, the Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1071, see ante, at 16-18, but also reviews the procedural history of an earlier, unsuccessful, attempt by a different Congress to enact similar legislation, the Civil Rights Act of 1990, S. 2104, 101st Cong., 1st Sess. (1990), see ante, at 9-11, 18.
This effectively converts the "clear statement" rule into a "discernible legislative intent" rule - and even that understates the difference. The Court's rejection of the floor statements of certain Senators because they are "frankly partisan" and "cannot plausibly be read as reflecting any general agreement" ante, at 17, reads like any other exercise in the soft science of legislative historicizing, 1 undisciplined by any distinctive "clear statement" requirement. If it is a "clear statement" we are seeking, surely it is not enough to insist that the statement can "plausibly be read as reflecting general agreement"; the statement must clearly reflect general agreement. No legislative history can do that, of course, but only the text of the statute itself. That has been the meaning of the "clear statement" retroactively rule from the earliest times. See, e.g., United States v. Heth, 3 Cranch 399, 408 (1806) (Johnson, J.) ("Unless, therefore, the words are too imperious to admit of a different construction, [the Court should] restric[t] the words of the law to a future operation"); id., at 414 (Cushing, J.) ("[I]t [is] unreasonable, in my opinion, to give the law a construction, which would have such a retrospective effect, unless it contained express words to that purpose"); [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 3] Murray v. Gibson, 15 How. 421, 423 (1854) (statutes do not operate retroactively unless "required by express command or by necessary and unavoidable implication"); Schwab v. Doyle, 258 U.S. 529, 537 (1922) ("a statute should not be given a retrospective operation unless its words make that imperative")' see also Bonjorno, supra, at 842-844 (concurring opinion (collecting cases applying the clear statement test). I do not deem that clear rule to be changed by the Court's dicta regarding legislative history in the present case.
The 1991 Act does not expressly state that it operates retroactively, but petitioner contends that its specification of prospective-only application for two sections, 109(c) and 402(b), implies that its other provisions are retroactive. More precisely, petitioner argues that since 402(a) states that "[e]xcept as otherwise specifically provided, [the 1991 Act] shall take effect upon enactment"; and since 109(c) and 402(b) specifically provide that those sections shall operate only prospectively; the term "shall take effect upon enactment in 402(a) must mean retroactive effect. The short response to this refined and subtle argument is that refinement and subtlety are no substitute for clear statement. "[S]hall take effect upon enactment" is presumed to mean "shall have prospective effect upon enactment," and that presumption is too strong to be overcome by any negative inference derived from 109(c) and 402(b). 2 [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 4]
The Court's opinion begins with an evaluation of petitioner's argument that the text of the statute dictates its retroactive application. The Court's rejection of that argument cannot be as forceful as it ought, so long as it insists upon compromising the clarity of the ancient and constant assumption that legislation is prospective, by attributing a comparable pedigree to the nouveau Bradley presumption in favor of applying the law in effect at the time of decision. See Bradley v. Richmond School Bd., 416 U.S. 696, 711 -716 (1974). As I have demonstrated elsewhere and need not repeat here, Bradley and Thorpe v. Housing Authority of Durham, 393 U.S. 268 (1969), simply misread our precedents and invented an utterly new and erroneous rule. See generally Bonjorno, 494 U.S., at 840 (SCALIA, J., concurring).
Besides embellishing the pedigree of the Bradley-Thorpe presumption, the Court goes out of its way to reaffirm the holdings of those cases. I see nothing to be gained by overruling them, but neither do I think the indefensible should needlessly be defended. And Thorpe, at least, is really indefensible. The regulation at issue there required that "before instituting an eviction proceeding local housing authorities . . . should inform the tenant . . . of the reasons for the eviction. . . ." Thorpe, supra, at 272, and n. 8 (emphasis added). The Court imposed that requirement on an eviction proceeding instituted eighteen months before the regulation issued. That application was plainly retroactive and was wrong. The result in Bradley presents a closer question; application of an attorney's fees provision to ongoing [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 5] litigation is arguably not retroactive. If it were retroactive, however, it would surely not be saved (as the Court suggests) by the existence of another theory under which attorney's fees might have been discretionarily awarded, see ante, at 33-34.
My last, and most significant, disagreement with the Court's analysis of this case pertains to the meaning of retroactivity. The Court adopts as its own the definition crafted by Justice Story in a case involving a provision of the New Hampshire Constitution that prohibited "retrospective" laws: a law is retroactive only if it "takes away or impairs vested rights acquired under existing laws, or creates a new disability, in respect to transactions or considerations already pat." Society for Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 767 (No. 13,516) (CCNH 1814) (Story, J.).
One might expect from this "vested rights" focus that the Court would hold all changes in rules of procedure (as opposed to matters of substance) to apply retroactively. And one would draw the same conclusion from the Court's formulation of the test as being "whether the new provision attaches new legal consequences to events completed before its enactment" - a test borrowed directly from our ex post facto Clause jurisprudence, see, e.g., Miller v. Florida, 482 U.S. 423, 430 (1987), where we have adopted a substantive-procedural line, see id., at 433 ("no ex post facto violation occurs if the change in law is merely procedural"). In fact, however, the Court shrinks from faithfully applying the test that it has announced. If first seemingly defends the procedural-substantive distinction that a "vested rights" theory entails, ante, at 31 ("[b]ecause rules of procedure regulate secondary rather than primary conduct, the fact [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 6] that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroactive"). But it soon acknowledges a broad and ill defined (indeed, utterly undefined exception: "Whether a new rule of trial procedure applies will generally depend upon the posture of the case in question." Ante, at 31, n. 29. Under this exception, "a new rule concerning the filing of complaints would not govern an action in which the complaint had already been filed," ibid., and the "the promulgation of a new jury trial rule would ordinarily not warrant retrial of cases that had previously been tried to a judge," ante, at 37, n.34. It is hard to see how either of these refusals to allow retroactive application preserves any "vested right." "`No one has a vested right in any given mode of procedure.'" Ex parte Collett, 337 U.S. 55, 71 (1949), quoting Crane v. Hahlo, 258 U.S. 142, 147 (1922).
The seemingly random exceptions to the Court's "vested rights" (substance-vs.-procedure) criterion must be made, I suggest, because that criterion is fundamentally wrong. It may well be that the upsetting of "vested substantive rights" was the proper touchstone for interpretation of New Hampshire's constitutional prohibition, as it is for interpretation of the United States Constitution's ex post facto Clauses, see ante, at 31, n. 28. But I doubt that it has anything to do with the more mundane question before us here: absent clear statement to the contrary, what is the presumed temporal application of a statute? For purposes of that question, a procedural change should no more be presumed to be retroactive than a substantive one. The critical issue, I think, is not whether the rule affects "vested rights," or governs substance or procedure, but rather what is the relevant activity that the rule regulates. Absent clear statement otherwise, only such relevant activity which occurs after the effective date of the statute is covered. Most statutes are meant to [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 7] regulate primary conduct, and hence will not be applied in trials involving conduct that occurred before their effective date. But other statutes have a different purpose and therefore a different relevant retroactivity event. A new rule of evidence governing expert testimony, for example, is aimed at regulating the conduct of trial, and the event relevant to retroactivity of the rule is introduction of the testimony. Even though it is a procedural rule, it would unquestionably not be applied to testimony already taken - reversing a case on appeal, for example, because the new rule had not been applied at a trial which antedated the statute.
The inadequacy of the Court's "vested rights" approach becomes apparent when a change in one of the incidents of trial alters substantive entitlements. The opinion classifies attorney's fees provisions as procedural and permits "retroactive" application (in the sense of application to cases involving pre-enactment conduct). See ante, 33-34. It seems to me, however, that holding a person liable for attorney's fees affects a "substantive right" no less than holding him liable for compensatory or punitive damages, which the Court treats as affecting a vested right. If attorney's fees can be awarded in a suit involving conduct that antedated the fee-authorizing statute, it is because the purpose of the fee award is not to affect that conduct, but to encourage suit for the vindication of certain rights - so that the retroactivity event is the filing of suit, whereafter encouragement is no longer needed. Or perhaps because the purpose of the fee award is to facilitate suit - so that the retroactivity event is the termination of suit, whereafter facilitation can no longer be achieved.
The "vested rights" test does not square with our consistent practice of giving immediate effect to statutes that alter a court's jurisdiction. See, e.g., Bruner v. United states, 343 U.S. 112, 116 -117, and n. 8 (1952); Hallowell v. Commons, 239 U.S. 506 (1916); cf. Ex parte [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 8] McCardle, 7 Wall. 506, 514 (1869); Insurance Co. v. Ritchie, 5 Wall. 541, 544-545 (1867); see also King v. Justices of the Peace of London, 3 Burr. 1456, 97 Eng. Rep. 924 (K. B. 1764). The court explains this aspect of our retroactivity jurisprudence by noting that "a new jurisdictional rule will often not involve `retroactivity' in Justice Story's sense because it `takes away no substantive right but simply changes the tribunal that is to hear the case.'" Ante, at 30, quoting Hallowell, supra, at 508. That may be true sometimes, but surely not always. A jurisdictional rule can deny a litigant a forum for his claim entirely, see Portal-to-Portal Act of 1947, 61 Stat. 84, as amended, 29 U.S.C. 251-262, or may leave him with an alternate forum that will deny relief for some collateral reason (e.g., a statute of limitations bar). Our jurisdiction cases are explained, I think, by the fact that the purpose of provisions conferring or eliminating jurisdiction is to permit or forbid the exercise of judicial power - so that the relevant event for retroactivity purposes is the moment at which that power is sought to be exercised. Thus, applying a jurisdiction-eliminating statute to undo past judicial action would be applying it retroactively; but applying it to prevent any judicial action after the statute takes effect is applying it prospectively.
Finally, statutes eliminating previously available forms of prospective relief provide another challenge to the Court's approach. Courts traditionally withhold requested injunctions that are not authorized by then-current law, even if they were authorized at the time suit commenced and at the time the primary conduct sought to be enjoined was first engaged in . See, e.g., American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184 (1921); Duplex Printing Press Co. v. Deering, 254 U.S. 443, 464 (1921). The reason, which has nothing to do with whether is possible to have a vested right to prospective relief, is that "[o]bviously, [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 9] this form of relief operates only in futuro," Derring, ibid. Since the purpose of prospective relief is to affect the future rather than remedy the past, the relevant time for judging is retroactivity is the very moment at which it is ordered. 3 .
I do not maintain that it will always be easy to determine, from the statute's purpose, the relevant event for assessing its retroactivity. As I have suggested, for example, a statutory provision for attorney's fees presents a difficult case. Ordinarily, however, the answer is clear - as it is in both Landgraf and Rivers. Unlike the Court, I do not think that any of the provisions at issue is "not easily classified," ante, at 38. They are all directed at the regulation of primary conduct, and the occurrence of the primary conduct is the relevant event.
[ Footnote 1 ] In one respect, I must acknowledge, the Court's effort may be unique. There is novelty as well as irony in his supporting the judgment that the floor statements on the 1991 Act are unreliable. See ante, at 17, n. 15.
[ Footnote 2 ] Petitioner suggests that in Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989), the Court found the negative implication of language sufficient to satisfy the "clear statement" requirement for congressional subjection of the States to private suit, see Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985). However, in that case it was the express inclusion of States in the definition of potentially liable "person[s]," see 42 U.S.C. 9601(21), as reinforced by the limitation of States' liability in certain limited circumstances, see 9601(20)(D), that led the Court to find a plain statement of liability. See 491 U.S., at 11 (noting the "cascade of plaint language" supporting liability); 491 U.S., at 30 [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 4] (SCALIA, J. concurring in part and dissenting in part.)). There is nothing comparable here.
[ Footnote 3 ] A focus on the relevant retroactivity event also explains why the presumption against retroactivity is not violated by interpreting a statute to alter the future legal effect of past transactions - so-called secondary retroactivity, see Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 219 -220 (1988) (SCALIA, J., concurring) (citing McNulty, Corporations and the Intertemporal Conflict of Laws, 55 Calif. L. Rev. 12, 58-60 (1967)); cf. Cox v. Hart, 260 U.S. 427, 435 (1922). A new ban on gambling applies to existing casinos and casinos under construction, see ante, at 25, n. 24, even thought it "attaches a new disability" to those past investments. The relevant retroactivity event is the primary activity of gambling, not the primary activity of constructing casinos. [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 1]
JUSTICE BLACKMUN, dissenting.
For the reasons stated in my dissent in Landgraf v. USI Film Products, ante, p. ___, I also dissent in this case. Here, just as in Landgraf, the most natural reading of the Civil Rights Act of 1991, 105 Stat. 1071, and this Court's precedents is that 101 applies to cases pending on appeal on the statute's enactment date, at least where application of the new provision would not disturb the parties' vested rights or settled expectations. This is such a case.
In 1986, when respondent Roadway Express, Inc., discharged petitioners Maurice Rivers and Robert C. Davison from their jobs as garage mechanics, 42 U.S.C. 1981, which gives all persons the same right to "make and enforce contracts," 1 was widely understood to apply to the discriminatory enforcement and termination of employment contracts. See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459 -460 (1975) ("Although this Court has not specifically so held, it is well settled among the Federal Courts of Appeals - and [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 2] we now join them - that 1981 affords a federal remedy against discrimination in private employment on the basis of race"). This understanding comports with 101 of the Civil Rights Act of 1991, 105 Stat. 1072, providing that "the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." The majority seemingly accepts petitioners' argument that, if this Court were to apply 101 to their case, "respondent has no persuasive claim to unfair surprise, because, at the time the allegedly discriminatory discharge occurred, the Sixth Circuit precedent held that 1981 could support a claim for discriminatory contract termination." Ante, at 10, n. 9.
Nonetheless, applying a new, supercharged version of our traditional presumption against retroactive legislation, the Court concludes that petitioners, whose claim was pending when this Court announced Patterson v. McLean Credit Union, 491 U.S. 164 (1989), are bound by that decision, which limited 1981 to contract formation. Patterson's tenure was - or surely should have been - brief, as 101 was intended to overrule Patterson and to deny it further effect. The Court's holding today, however, prolongs the life of that congressionally repudiated decision. See Estate of Reynolds v. Martin, 985 F.2d 470, 475-476 (CA9 1993) (denying application of 101 to cases pending at its enactment would allow repudiated decisions, including Patterson, to "live on in the federal courts for . . . years").
Although the Court's opinions in this case and in Landgraf do bring needed clarity to our retroactivity jurisprudence, they do so only at the expense of stalling the intended application of remedial and restorative legislation. In its effort to reconcile the "apparent tension," Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 837 (1990), between Bradley v. [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 3] Richmond School Bd., 416 U.S. 696 (1974), and Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988), the Court loses sight of the core purpose of its retroactivity doctrine, namely, to respect and effectuate new laws to the extent consistent with congressional intent and with the vested rights and settled expectations of the parties. In Bradley, a unanimous Court applied an intervening statute allowing reasonable attorney's fees for school desegregation plaintiffs to a case pending on appeal on the statute's effective date. The Court observed that the statute merely created an "additional basis or source for the Board's potential obligation to pay attorneys' fees." 416 U.S., at 721 . 2 Just as the school board in Bradley was on notice that it could be liable for attorney's fees, the employer in this case was on notice from the prevailing interpretation of 1981 that it could be liable for damages for a racially discriminatory contract termination. Indeed, in this case, the employer's original liability stemmed from the very provision that petitioners now seek to enforce.
In Bowen, by contrast, the Court unanimously interpreted authorizing statutes not to permit the Secretary of Health and Human Services retroactively to change the rules for calculating hospitals' reimbursements for past services provided under Medicare. Although Bowen properly turned on the textual analysis of the applicable statutes, neither citing Bradley nor resorting to presumptions on retroactivity, its broad dicta disfavored the retroactive application of congressional enactments and [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 4] administrative rules. See 488 U.S., at 208 . Bowen is consistent, however, with the Court's analysis in Bennett v. New Jersey, 470 U.S. 632 (1985), appraising the "[p]ractical considerations," id., at 640, that counsel against retroactive changes in federal grant programs and noting that such changes would deprive recipients of "fixed, predictable standards." Ibid. Bowen also accords with Bradley's concern for preventing the injustice that would result from the disturbance of the parties' reasonable reliance. Thus, properly understood, Bradley establishes a presumption that new laws apply to pending cases in the absence of manifest injustice, and Bowen and Bennett stand for the corresponding presumption against applying new laws when doing so would cause the very injustice Bradley is designed to avoid. 3
Applying these principles here, "[w]hen a law purports to restore the status quo in existence prior to an intervening Supreme Court decision, the application of that law to conduct occurring prior to the decision would obviously not frustrate the expectations of the parties concerning the legal consequences of their actions at that time." Gersman v. Group Health Ass'n, Inc., 975 F.2d 886, 907 (CADC 1992) (dissenting opinion). While 101 undoubtedly expands the scope of 1981 to prohibit conduct that was not illegal under Patterson, 4 in the present context 101 provides a remedy for conduct that [ RIVERS v. ROADWAY EXPRESS, INC., ___ U.S. ___ (1994) , 5] was recognized as illegal when it occurred, both under 1981 and under Title VII. Thus, as far as respondent Roadway is concerned, the law in effect when it dismissed petitioners' claim differs little from the law as amended by the Civil Rights Act of 1991, and application of 101 in this case would neither alter the expectations of the parties nor disturb previously vested rights. Because I believe that the most faithful reading of our precedents makes this the appropriate inquiry, I would reverse the judgment of the Court of Appeals and remand the case for further proceedings.
[ Footnote 1 ] Until the 1991 amendment, 1981 stated: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens. . . ."
[ Footnote 2 ] Here, of course, 101 creates a basis or source - in addition to Title VII - for the prohibition on racial discrimination in the enforcement of employment contracts. Title VII makes it illegal for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. 2000e-2(a)(1).
[ Footnote 3 ] An inquiry into the vested rights and settled expectations of the parties is fairer and more sensitive than a mechanical reliance on a substance/procedure dichotomy. See Gersman v. Group Health Ass'n, Inc., 975 F.2d 886, 906 (CADC 1992) (Wald, J., dissenting); Mozee v. American Commercial Marine Service Co., 963 F.2d 929, 940-941 (CA7 1992) (Cudahy, J., dissenting from denial of rehearing).
[ Footnote 4 ] Not all conduct proscribed by 101 was also unlawful under Title VII or other civil rights laws. For example, 101, unlike Title VII, see 42 U.S.C. 2000e(b), applies to small employers, and even outside the employment context, see, e.g., Runyon v. McCrary, 427 U.S. 160 (1976). Page I