Chenault v. U.S. Postal Service

• Decision Date: 14 September 1994
• Docket Number: No. 92-35128,92-35128
• Citation: 37 F.3d 535
• Parties: , 3 A.D. Cases 1185, 7 A.D.D. 135, 5 NDLR P 365 Stanley CHENAULT, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 535

37 F.3d 535

63 USLW 2222, 3 A.D. Cases 1185, 7

A.D.D. 135, 5 NDLR P 365

Stanley CHENAULT, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, Defendant-Appellee.

No. 92-35128.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 14, 1994 ^*.

Decided Oct. 6, 1994.

Glenn N. Solomon, Portland, OR, for plaintiff-appellant.

Michael S. Rabb, Deborah Ruth Kant and Marleigh D. Dover, U.S. Dept. of Justice, Washington, DC, Judith D. Kobbervig, Asst. U.S. Atty., Portland, OR, Alice L. Covington and Beth McGarry, U.S. Postal Service, San Bruno, CA, for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before: ALDISERT ^**, TANG and THOMPSON, Circuit Judges.

ALDISERT, Circuit Judge.

This appeal by Stanley Chenault from the district court's denial of his motion to amend his complaint and dismissal of his action after a two-day bench trial by a magistrate judge requires us to determine whether certain sections of the Civil Rights Act of 1991 may be applied retroactively. Specifically, we must examine Section 102, which provides for compensatory and punitive damages as well as a jury trial in employment discrimination cases, Section 107, which creates a new framework for analyzing mixed-motive discrimination claims, and Section 114(1), which extends the period for filing discrimination claims against the federal government from 30 days to 90 days, in light of Landgraf v. USI Film Prods., --- U.S. ----, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) and Rivers v. Roadway Express, Inc., --- U.S. ----, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994). We conclude that none of the sections in question may be applied retroactively and therefore affirm the judgment of the district court.

The district court had jurisdiction pursuant to 28 U.S.C. Secs. 1331 and 1343, and 29 U.S.C. Sec. 794a(a)(1). We have jurisdiction under 28 U.S.C. Sec. 1291. Appeal was timely filed under Rule 4(a) of the Federal Rules of Appellate Procedure.

I.

In August 1989, after exhausting his administrative remedies, Stanley Chenault brought suit against the United States Postal Service alleging that it constructively discharged him from his position as a distribution clerk and failed to provide him a reasonable accommodation for his handicap under the Rehabilitation Act of 1973, which forbids discrimination of government employees on the basis of a handicap. The district court dismissed Chenault's failure-to-accommodate claim as time-barred in February 1991 because he did not bring his action against the government within 30 days of the final administrative decision, as required by the statute in effect at the time. See 42 U.S.C. Sec. 2000e-16(c) (1980). It also concluded that Chenault was not entitled to equitable tolling of the 30-day limitations period. ¹ On November 7, 1991, while Chenault's constructive discharge claim was still pending, the Civil Rights Act of 1991 was signed into law effective immediately, significantly restructuring existing federal prohibitions against employment discrimination. In December 1991, shortly before his case was to go to trial, Chenault moved to amend his complaint based on the passage of the Civil Rights Act of 1991. He argued that his failure-to-accommodate claim should be reinstated because he now had 90 days to file his complaint under Section 114(1) of the Act, that he was now entitled to compensatory damages in the amount of $300,000 and punitive damages in the amount of $50,000 under Section 102, and that the court was compelled to evaluate his claim of employment discrimination under the standard of review set forth in Section 107.

The district court denied Chenault's motion at a pretrial conference and ruled that the Civil Rights Act of 1991 did not apply to his case because the action was pending when the Act became law. A magistrate judge conducted a two-day bench trial thereafter and ruled against Chenault on his remaining claims. The district court dismissed the action on December 20, 1991 and Chenault appealed from this final judgment, alleging that the court erred in concluding that Sections 102, 107 and 114 could not be applied to cases pending at the time of enactment. We entered an order removing the case from the oral argument calendar pending Supreme Court consideration of the retroactivity of the Civil Rights Act of 1991. In April 1994, the Court decided that Sections 101 and 102 of the Act do not apply to cases arising before November 21, 1991. Landgraf, --- U.S. ----, 114 S.Ct. 1483; Rivers, --- U.S. ----, 114 S.Ct. 1510.

Whether a statute may be applied retroactively is a question of law this court reviews de novo. United States v. Alpine Land & Reservoir Co., 878 F.2d 1217, 1222 (9th Cir.1989).

II.

The Court held in Landgraf that Section 102 of the Act may not be applied retroactively, stating "congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." --- U.S. at ----, 114 S.Ct. at 1500 (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493 (1988)). It held that "prospectivity remains the appropriate default rule" and that there can be no retroactive application unless their is "clear intent" by Congress. Id. at ----, 114 S.Ct. at 1501. The Court emphasized the "well-settled presumption against application of the class of new statutes that would have genuinely 'retroactive' effect." Id. at ----, 114 S.Ct. at 1503. To have a genuinely "retroactive" effect, the Court held that the newly enacted rule must "impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Id. at ----, 114 S.Ct. at 1505.

Had the Court ended its discussion at this point, our task would be simple: Because Congress did not express a "clear intent" to have any provision of the Civil Rights Act of 1991 apply retroactively, the Act in its entirety may not apply to cases pending at the time of its enactment. Indeed, this is the interpretation of some courts of appeals. See, e.g., Cross v. State of Alabama, No. 92-7005, 1994 WL 424303 at * 19 (11th Cir. Aug. 30, 1994). However, the Court did not decide that the Act in toto may not apply retroactively, rather it instructed courts to "evaluate each provision of the Act in light of ordinary judicial principles concerning the application of new rules to pending cases and pre-enactment conduct." Landgraf, --- U.S. at ----, 114 S.Ct. at 1505.

The Court then suggested that these "ordinary judicial principles" should be informed by whether a particular provision is substantive or procedural in nature: "Because rules of procedure regulate secondary rather than primary conduct, the fact 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." Id. at ----, 114 S.Ct. at 1502. For example, in rejecting the argument that Section 102 of the Act applied retroactively, the Court stated that "[i]f Section 102 did no more than introduce a right to jury trial in Title VII cases, the provision would presumably apply to cases tried after November 21, 1991, regardless of when the underlying conduct occurred. However, because Section 102(c) makes a jury trial available only '[i]f a complaining party seeks compensatory or punitive damages,' the jury trial option must stand or fall with the attached damages provisions [which are substantive]." Id. at ----, 114 S.Ct. at 1505 (footnote omitted). The Court noted that "[w]e have sometimes said that ... new 'procedural' [statutes] should presumptively apply to pending cases." Id. at ---- n. 37, 114 S.Ct. at 1507 n. 37.

Landgraf created a scheme whereby courts must scrutinize each provision of a given statute to ascertain whether it is "substantive" or "procedural," and implied that if a provision is substantive, a presumption against retroactive application attaches; if it is procedural, a presumption in favor of retroactive application attaches.

III.

With these precepts in mind, we must now examine the three sections of the Act that are the subject of this appeal.

At the very least, Landgraf squarely stands for the proposition that Section 102, which affords discrimination plaintiffs additional damages remedies, is a substantive amendment and may not be applied retroactively. Thus, the district court did not err in concluding that Section 102 did not apply to Chenault's action.

Nor do we have any difficulty concluding that Section 107 may not be applied retroactively. Section 107 permits a finding that an employer has committed an unlawful employment practice whenever an improper consideration is a "motivating factor" in an employment decision, regardless of whether the employer would have taken the same action in the absence of the improper consideration:

[B]ecause under prior law a finding that an employer would have reached the same employment decision absent the improper motivating factor rendered the employer free from any liability, not merely free from liability for certain remedies, see Price Waterhouse [v. Hopkins], 490 U.S. [228,] 258, 109 S.Ct. [1775,] 1794-95 [ (1989) ], we must conclude that Sec. 107 alters the legality of the employer's conduct and thus affixes new legal consequences to past conduct.

Preston v. Commonwealth of Virginia, 31 F.3d 203, 207-08 (4th Cir.1994); see also Hook v. Ernst & Young, 28 F.3d 366, 368 (3d Cir.1994) ("We conclude that Section 107 does not govern this case because that section does not apply to conduct occurring prior to enactment in 1991.").

The most difficult question before us is the potential retroactivity of Section 114(1), which extends the filing period in employment discrimination cases against the government from 30 days to 90 days. We have previously suggested that a rule extending a statute of limitations is...