Hicks v. Brown Group, Inc.

• Decision Date: 30 December 1992
• Docket Number: 88-2817,Nos. 88-2769,s. 88-2769
• Citation: 982 F.2d 295
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 488, 60 Empl. Prac. Dec. P 41,922 Kenneth G. HICKS, Plaintiff-Appellee, v. BROWN GROUP, INC., d/b/a Brown Shoe Company, Inc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 295

982 F.2d 295

61 Fair Empl.Prac.Cas. (BNA) 488,

60 Empl. Prac. Dec. P 41,922

Kenneth G. HICKS, Plaintiff-Appellee, v. BROWN GROUP, INC., d/b/a Brown Shoe Company, Inc. Defendant-Appellant.

Nos. 88-2769, 88-2817.

United States Court of Appeals Eighth Circuit.

Submitted July 21, 1992.

Decided Dec. 30, 1992.

Thomas M. Hanna and Fred A. Ricks, Jr., St. Louis, MO, argued, for defendant-appellant.

Michael J. Hoare and John D. Lynn, St. Louis, MO, argued, for plaintiff-appellee.

Before RICHARD S. ARNOLD, Chief Judge, HEANEY, Senior Circuit Judge, McMILLIAN, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges, En Banc.

LOKEN, Circuit Judge, with whom RICHARD S. ARNOLD, Chief Judge, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges, join.

Kenneth G. Hicks lost his job in 1982 when Brown Group, Inc., reduced the supervisory staff at its Benton, Missouri, terminal. Hicks, a white male then 51 years old, sued and a jury found that he was terminated because of his race in willful violation of 42 U.S.C. § 1981. He was awarded $1.00 in actual damages, $10,000 in punitive damages, and his costs and attorneys' fees. Brown Group appealed and a panel of this court affirmed, one judge dissenting. See Hicks v. Brown Group, Inc., 902 F.2d 630 (8th Cir.1990), which contains a thorough recitation of the background facts.

Brown Group then filed a petition for a writ of certiorari, and the Supreme Court remanded. 111 S.Ct. 1299 (1991). Following remand, the panel unanimously reversed the judgment of the district court, concluding that Hicks's discriminatory discharge claim is not actionable under § 1981 as construed in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), and our en banc decision in Taggart v. Jefferson County Child Support Enforcement Unit, 935 F.2d 947 (8th Cir.1991). Hicks v. Brown Group, Inc., 946 F.2d 1344 (8th Cir.), motion to vacate denied, 952 F.2d 991 (8th Cir.1991). Hicks then sought a writ of certiorari and the Supreme Court again remanded, this time "for further consideration in light of the Civil Rights Act of 1991." --- U.S. ----, 112 S.Ct. 1255, 117 L.Ed.2d 485 (1992).

On remand, the panel submitted the case to the court en banc, recognizing that the Supreme Court's remand requires us to consider again the issue of statutory retroactivity decided by another panel in Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992). We now uphold the decision in Fray that § 101(2)(b) of the Civil Rights Act of 1991 does not apply retroactively to cases pending at the time of its enactment. Accordingly, we reinstate the panel's October 9, 1991, decision.

Section 101(2)(b) of the 1991 Act legislatively overruled Patterson:

For purposes of this section, 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.

42 U.S.C. § 1981(b) (emphasis added). Thus, Hicks's § 1981 claim fails under Patterson and Taggart but would succeed if this provision in the 1991 Act retroactively applies to his case.

This retroactivity question has already been the subject of substantial judicial exposition. In addition to our decision in Fray, ¹ at least five other circuits have concluded that various provisions of the 1991 Act do not apply retroactively to cases pending at the time of enactment. See, e.g., Gersman v. Group Health Assoc., Inc., 975 F.2d 886 (D.C.Cir.1992); Rowe v. Sullivan, 967 F.2d 186 (5th Cir.1992); Holt v. Michigan Dept. of Corrections, 974 F.2d 771 (6th Cir.1992); Luddington v. Indiana Bell Tel. Co., 966 F.2d 225 (7th Cir.1992); Baynes v. AT & T Technologies, Inc., 976 F.2d 1370 (11th Cir.1992). One circuit has reached a contrary conclusion. See Davis v. City & County of San Francisco, 976 F.2d 1536, 1549-56 (9th Cir.1992). Given this wealth of learned judicial discourse, we see no need to redefine the background principles and precedents that shape this significant issue. Instead, we will briefly summarize the reasons that lead us to adhere to our decision in Fray.

1. The initial question is whether Congress in the 1991 Act evidenced its intent on this question of retroactivity. The Ninth Circuit concluded that "the language of the Act reveals Congress' clear intention that the majority of the Act's provisions be applied to cases pending at the time of its passage." Davis, 976 F.2d at 1550. The court in Davis divined that intent from the two provisions in the Act that were expressly made prospective only, concluding from these provisions that the rest of the statute must be applied retroactively.

In Fray, we concluded that the presence of these provisions does not outweigh the overwhelming legislative evidence that a divided Congress intended "to hand this controversial issue to the judiciary by passing a law that contained no general resolution of the retroactivity issue." 960 F.2d at 1377. Every other circuit to consider the question has agreed. As the D.C. Circuit explained:

However, given the convoluted legislative history of the Act and the war of interests firing at each other across the floor of both legislative houses, one might view these two subsections not as redundancies, but rather as insurance policies [for those who opposed retroactivity].

Gersman, 975 F.2d at 890. We agree that neither the language of the 1991 Act nor its legislative history reflects an identifiable congressional intent that the statute be generally retroactive.

2. With congressional intent indiscernible, we must apply the conflicting presumptions as to statutory retroactivity articulated in Bradley v. Richmond School Bd., 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974), on the one hand, and Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493 (1988), on the other. Under the Bradley test, we must apply the Act to pending cases unless it provides expressly to the contrary or manifest injustice would result from retroactive application. But under Georgetown Hospital, the Act is prospective unless it expressly provides for retroactive application. Thus, the issue seems to present a choice between two equally applicable but inconsistent lines of Supreme Court precedent.

Of course, when two Supreme Court decisions seem inconsistent, they are seldom equally applicable. If Bradley is the more applicable--if it is a controlling precedent--we are not free to ignore it. However, we conclude that Bradley involved distinguishable circumstances. In Bradley, a statute allowing attorneys' fees in school desegregation cases was applied retroactively to a pending claim for attorneys' fees against a public school district. This case, on the other hand, involves a dispute between private parties. Long before Bradley, the Supreme Court noted that, when a new statute may affect private disputes, courts should "struggle hard against a construction which will, by a retrospective operation, affect the rights of parties." United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110, 2 L.Ed. 49 (1801), quoted in Bradley, 416 U.S. at 717, 94 S.Ct. at 2019.

Section 101 of the 1991 Act expands the range of conduct that will violate § 1981. In Bennett v. New Jersey, 470 U.S. 632, 639, 105 S.Ct. 1555, 1560, 84 L.Ed.2d 572 (1985), the Supreme Court stated that the Bradley presumption of retroactivity should be limited by the "venerable rule of statutory interpretation ... that statutes affecting substantive rights and liabilities are presumed to have only prospective effect." In holding that the 1991 Act does not apply retroactively, many circuits have distinguished Bradley and followed the Georgetown Hospital presumption on this ground. See Gersman, 975 F.2d at 898-99; Baynes, 976 F.2d at 1374-75; Johnson v. Uncle Ben's, Inc., 965 F.2d 1363, 1374 (5th Cir.1992), petition for cert. filed, 61 U.S.L.W. 3356 (No. 92-737, Sept. 29, 1992); Mozee v. American Commercial Marine Serv. Co., 963 F.2d 929, 936 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 207, 121 L.Ed.2d 148 (1992); Vogel v. City of Cincinnati, 959 F.2d 594, 598 (6th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 86, 121 L.Ed.2d 49 (1992). We agree. ² 3. Although we can readily distinguish the Civil Rights Act of 1991 from the statute at issue in Bradley, we also believe that the conflicting presumptions articulated in Bradley and Georgetown Hospital reflect truly divergent lines of authority on the question of statutory retroactivity. We recently reviewed these conflicting precedents in Simmons v. Lockhart, 931 F.2d 1226, 1230 (8th Cir.1991), and concluded:

[Where] Congress's silence is ambiguous ... one must choose between the Bradley and Georgetown Hospital presumptions. The better rule is that of Georgetown Hospital.... [T]he presumption against retroactive application best preserves the distinction between courts and legislatures: the former usually act retrospectively, settling disputes between persons, the latter usually act prospectively, setting the general rules for future conduct.

See also Criger v. Becton, 902 F.2d 1348, 1353-54 (8th Cir.1990).

Some have argued that the Civil Rights Act of 1991 should nonetheless be given retroactive effect because it is "restorative" legislation--by overruling recent Supreme Court decisions such as Patterson, the Act restored prior law and therefore did not interfere with justified expectations or vested rights. We agree with the Seventh Circuit's response to this contention:

When [Congress] "overrules" a Supreme Court decision it is not registering disagreement with the merits of what the Court did; it is laying down a new rule of conduct--ordinarily for the future. Section 1981 dates back to 1866. It is as unlikely that Congress was attempting to restore section 1981...