The Supreme Court/The Supreme Court.iso/pc/ascii/1992/92_938/92_938.zd

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SUPREME COURT OF THE UNITED STATES
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No. 92-938
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MAURICE RIVERS and ROBERT C. DAVISON,
PETITIONERS v. ROADWAY EXPRESS, INC.
on writ of certiorari to the united states court
of appeals for the sixth circuit
[April 26, 1994]

  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,- was widely understood
to apply to the discriminatory enforcement and termina-
tion 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
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 legisla-
tion, 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 congres-
sionally 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.
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 retroac-
tivity 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.  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 inter-
preted 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 pre-
sumptions on retroactivity, its broad dicta disfavored the
retroactive application of congressional enactments and
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 injus-
tice 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.
  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, in the
present context 101 provides a remedy for conduct that
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 dis-
missed petitioners' claim differs little from the law as
amended by the Civil Rights Act of 1991, and applica-
tion of 101 in this case would neither alter the expecta-
tions 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.