Van Meter v. Barr, Civ. A. No. 91-0027.

• Decision Date: 18 December 1991
• Docket Number: Civ. A. No. 91-0027.
• Citation: 778 F. Supp. 83
• Parties: Michael VAN METER, Plaintiff, v. William P. BARR, Attorney General, Defendant.
• Court: U.S. District Court — District of Columbia

778 F. Supp. 83

Michael VAN METER, Plaintiff, v. William P. BARR, Attorney General, Defendant.

Civ. A. No. 91-0027.

United States District Court, District of Columbia.

December 18, 1991.

David J. Shaffer, Washington, D.C., Steven A. Berliner, Los Angeles, Cal., David Kairys, Philadelphia, Pa., Joseph M. Sellers and Elizabeth A. Singer, Washington, D.C., for plaintiff.

Anne M. Gulyassy and Robert S. Whitman, Washington, D.C., for defendant.

MEMORANDUM

GESELL, District Judge.

In this Title VII race discrimination case, a Special Agent of the Federal Bureau of Investigation ("FBI"), who brought suit in this Court on January 7, 1991, moves to amend his complaint to include a claim for compensatory damages and a request for a jury trial pursuant to the Civil Rights Act of 1991 ("1991 Act"), which became effective more than nine months after the original complaint was filed. The motion is opposed and has been fully briefed and argued.

The Court confronts an issue of first impression in this jurisdiction, where according to the Clerk of the Court, some 322 cases invoking the Civil Rights Act of 1964, as amended ("1964 Act") are pending, the large majority of which, like the above-captioned case, involve federal employees.

The 1991 Act

Plaintiff moved to amend his complaint on November 21, 1991, the day the President signed the 1991 Act. In his proposed second amended complaint, plaintiff invokes sections 102(b) and (c) of the 1991 Act, which read as follows:

Sec. 102. Damages in Cases of Intentional Discrimination

(a) Right of Recovery. —

(1) Civil Rights. — In an action brought by a complaining party under section 706 or 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5) against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) prohibited under section 703, 704, or 717 of the Act (42 U.S.C. 2000e-2 or 2000e-3), and provided that the complaining party cannot recover under section 1977 of the Revised Statutes (42 U.S.C. 1981), the complaining party may recover compensatory and punitive damages as allowed in subsection (b), ...

Section 102(b) provides for compensatory and punitive damages in such actions, up to certain specified limits, but disallows punitive damages against the government.

(c) Jury Trial. — If a complaining party seeks compensatory or punitive damages under this section —

(1) any party may demand a trial by jury....

The 1991 Act contains no provision stating specifically whether or not the damages and jury sections cited above apply to cases, such as the present case, already pending in U.S. District Courts. Moreover, the legislative history of the 1991 Act not only fails to provide any guidance on the question, but as the parties agree, it affirmatively leaves the issue in a state of total confusion. The congressional "debates" were, with few exceptions, hardly more than a series of declarations and counterdeclarations, which often addressed "retroactivity" without ever defining that term or focusing on the crucial, separate problem at issue here of how the 1991 Act was supposed to affect federal employment cases pending before the courts.

The new damages provision plaintiff is attempting to invoke does not eliminate the equitable remedies available under the 1964 Act, such as back pay, promotion, protection against retaliation, and the like; and the carefully crafted administrative procedures involving conciliation, evidentiary hearings before an Administrative Law Judge, and agency review, which comprise a necessary prerequisite to the federal government's waiver of sovereign immunity in cases affecting its employees, remain intact.

Discussion

Irrespective of the passing comments made by the parties in their briefs, there can be no dispute based on distinctions between substance and procedure as far as the issue before the Court is concerned. A right to seek compensatory damages in a jury trial against the United States is a major substantive provision.

In a decision by Judge (now Justice) Thomas, joined by Judges Edwards and Sentelle, this Circuit — after considering the recent decisions of the U.S. Supreme Court in this area — stated:

"Substantive legislation will not be given retroactive effect `unless such be "the unequivocal and inflexible import of the statutory terms, and the manifest intention of the legislature"'"....

Alpo Pet Foods, Inc. v. Ralston Purina Co., 913 F.2d 958, 963 n. 6 (D.C.Cir.1990) (quoting Georgetown University Hospital v. Bowen, 821 F.2d 750, 758 (D.C.Cir.1987), aff'd, 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988)). That holding confirmed the developing view of the Circuit on an issue that has not yet been finally resolved by the Supreme Court. See Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 1576-77, 108 L.Ed.2d 842 (1990) (recognizing the "apparent tension" between Bowen v. Georgetown University Hospital, 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493 (1988) and Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974)). The question of retroactivity was revisited by the Circuit in Wagner Seed Company, Inc. v. Bush, with the same result. There the court held that if "the presumption against retroactivity is not rebutted by clear terms to the contrary ... then the statute applies only prospectively." Wagner Seed, 946 F.2d 918, 924 (D.C.Cir.1991) (citing United States Fidelity & Guaranty Co. v. United States, 209 U.S. 306, 314, 28 S.Ct. 537, 539, 52 L.Ed. 804 (1908) (holding that a statute "ought not to receive retroactive construction unless the words used are so clear, strong, and imperative that no other meaning can be annexed to them, or unless the intention of the legislature cannot be otherwise satisfied")). In the present case, no such clear language appears in the statute, and the legislative history remains too ambiguous to provide the type of conclusive support for retroactivity that might overcome the presumption.

To be sure, as plaintiff points out, the 1991 Act provides that it shall "take effect upon enactment," see 1991 Act, § 402(a); but that provision makes no reference to Title VII federal employment cases that have already been filed in federal court. Prior to filing, those actions were required to comply with Title VII's explicit provisions regarding exhaustion of administrative remedies. The two provisions of the 1991 Act that were included in order to ensure that earlier Supreme Court decisions overruled by the Act are not affected retroactively, see 1991 Act, §§ 109(c), 402(b), similarly have no significance to the issue presented here. The only question that this Court must decide is whether or not section 102(a) of the Act applies retroactively to an existing Title VII case involving a federal agency, and the statute contains no explicit language in that regard.

If anything, the statute seems to indicate that it will apply only prospectively in such cases. According to section 102(a) of the Act, "complaining parties" may seek compensatory and — in suits against private employers — punitive damages. Section 102(d) defines a "complaining party" as "the Equal Employment Opportunity Commission, the Attorney General, or a person who may bring an action or proceeding under title VII...." By its terms, the statute seems to contemplate that only plaintiffs...