Wallace v. Housing Authority of City of Columbia

• Decision Date: 08 May 1992
• Docket Number: Civ. A. No. 3:91-3440-19AH.
• Citation: 791 F. Supp. 137
• Court: U.S. District Court — District of South Carolina
• Parties: Meredith A. WALLACE, Plaintiff, v. HOUSING AUTHORITY OF the CITY OF COLUMBIA; Rodney H. Fauser, in both his official and individual capacities, Defendants.

791 F. Supp. 137

Meredith A. WALLACE, Plaintiff, v. HOUSING AUTHORITY OF the CITY OF COLUMBIA; Rodney H. Fauser, in both his official and individual capacities, Defendants.

Civ. A. No. 3:91-3440-19AH.

United States District Court, D. South Carolina, Columbia Division.

May 8, 1992.

Benjamin M. Mabry, Columbia, S.C., for plaintiff.

Vance J. Bettis, Columbia, S.C., for defendants.

ORDER

SHEDD, District Judge.

This is an employment discrimination case. Plaintiff commenced this action on November 13, 1991, alleging sex and pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; and the Civil Rights Act of 1871, 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636 and Local Rule 19.02 (DSC), this matter was assigned to the Honorable Charles W. Gambrell, United States Magistrate Judge, for all pretrial proceedings.

On February 26, 1992, plaintiff filed a Motion For Leave To Amend the Complaint to add a claim for compensatory damages and a demand for a jury trial on her Title VII claim based on the Civil Rights Act of 1991 ("the Act"), which was signed into law on November 21, 1991. On March 19, 1992, Magistrate Judge Gambrell filed a Report and Recommendation ("the Report") in which he recommends that plaintiff's motion be denied based on his finding that the Act does not apply retroactively. Plaintiff has filed an objection to the Report in which she restates the arguments that she presented in her motion to amend. This matter is now before the Court for review of the Report pursuant to 28 U.S.C. § 636.

The applicable standard of review is clear. The magistrate judge makes only a recommendation to the Court, to which any party may file written objections within ten days after being served with a copy of the report and recommendation. 28 U.S.C. § 636(b)(1)(B)-(C). The Court is not bound by the recommendation of the magistrate judge but, instead, retains responsibility for the final determination. Mathews v. Weber, 423 U.S. 261, 271, 96 S.Ct. 549, 554, 46 L.Ed.2d 483 (1976). The Court is required to make a de novo determination of those portions of the report or specified findings or recommendation as to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the report and recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472, 88 L.Ed.2d 435 (1985). While the level of scrutiny entailed by the Court's review of the Report thus depends on whether or not objections have been filed, in either case the Court is free, after review, to accept, reject, or modify any of the magistrate judge's findings or recommendations. Wood v. Schweiker, 537 F.Supp. 660, 661 (D.S.C.1982).

The Court has carefully reviewed the Report and plaintiff's objection thereto and has specifically considered de novo those portions of the Report to which plaintiff has objected. In addition, the Court has reviewed the legislative history of the Act and the controlling case law. Based on this review, the Court agrees with the conclusion of Magistrate Judge Gambrell, and now holds, that the Act is not to be applied retroactively. This conclusion is warranted by the decisions in Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988),¹ and Leland v. Federal Ins. Adm'r, 934 F.2d 524 (4th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 417, 116 L.Ed.2d 437 (1991);² and is consistent with all of the reported decisions in this circuit dealing with this issue, see McCormick v. Consolidation Coal Co., 786 F.Supp. 563 (N.D.W.Va.1992); Rowson v. County of Arlington, Va., 786 F.Supp. 555 (E.D.Va.1992) (1992 Westlaw 52182);³Percell v. International Business Machs., Inc., 785 F.Supp. 1229 (E.D.N.C.1992) (1992 Westlaw 46478);⁴Patterson v. McLean Credit Union, 784 F.Supp. 268 (M.D.N.C. 1992); Khandelwal v. Compuadd Corp., 780 F.Supp. 1077 (E.D.Va.1992); as well as with the only two circuit court decisions of which the Court is aware. See Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992); Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir.1992) (1992 Westlaw 45451).⁵ Accordingly, the Court will overrule plaintiff's objection and accept the Report.

IT IS THEREFORE ORDERED that plaintiff's objection be OVERRULED, the Report be ACCEPTED, and plaintiff's Motion For Leave To Amend be DENIED.

AND IT IS SO ORDERED.

REPORT AND RECOMMENDATION

GAMBRELL, United States Magistrate Judge.

This case is before the court on the motion by plaintiff's counsel, J. Lewis Cromer, Esq., for leave to amend the complaint. On February 26, 1992, Mr. Cromer filed the motion for leave to amend. Plaintiff's counsel seeks leave to amend the complaint to add claims for compensatory damages relating to mental anguish, loss of earning capacity, loss of reputation, and "other harms," under the Civil Rights Act of 1991. On the basis of § 102 of the Civil Rights Act of 1991, the plaintiff also seeks a jury trial. Cited in the motion for leave to amend are Mojica v. Gannett Company, Inc., 779 F.Supp. 94 (N.D.Ill.1991), and King v. Shelby Medical Center, 779 F.Supp. 157 (N.D.Alabama 1991). Plaintiff's counsel indicates that he has consulted with defendants' counsel, but states that he has not been able to secure consent from counsel for the defendants.

The plaintiff's motion to amend includes a memorandum of law. In that memorandum, the plaintiff contends that the decision of the Supreme Court in Bradley v. School Board of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974), requires the court to apply the 1991 Act retroactively because she "only seeks to invoke procedural and remedial changes in the 1991 Act." Plaintiff's counsel argues that the district court in Mojica v. Gannett Co., supra, applied the Bradley holding in concluding that retroactive application of the 1991 Act is required. Plaintiff's counsel collects cases outside this circuit holding that statutory changes which are procedural or remedial in nature apply retroactively.

Plaintiff's counsel also maintains that the court's reliance on the decision of the Court of Appeals in Leland v. Federal Insurance Administrator, 934 F.2d 524 (4th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 417, 116 L.Ed.2d 437 (1991), "would be misplaced" because the retroactive application of a statute in that case would have altered a substantive right in an insurance contract. Also cited is Bennett v. New Jersey, 470 U.S. 632, 639, 105 S.Ct. 1555, 1560, 84 L.Ed.2d 572 (1985), which holds that statutes affecting substantive rights and liabilities are presumed to have only prospective effect. In a separate paragraph, plaintiff's counsel calls attention to Bowen v. Georgetown University Hospital, 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988), which held that the Secretary of Health and Human Services had no authority, under amendments to the Medicare Act, to promulgate retroactive regulations concerning reimbursement(s) to hospitals.

Plaintiff's counsel contends that Bradley is controlling because the Civil Rights Act of 1991 only affects procedural and remedial changes, whereas Bowen v. Georgetown University Hospital applies to substantive rights. In what is a transition paragraph into the plaintiff's next major contention, plaintiff's counsel states, "whether the 1991 Act applies retroactively is a matter of congressional intent, which should not be decided by an arguably unconstitutional irrebuttable presumption ... against retroactivity." (Plaintiff's brief, at pages 3-4). The plaintiff also cites Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990), as holding that "the legislative intent controls the manner in which a statute is to be construed — where it is clear." (Plaintiff's brief, at page 4).

In his second major contention, plaintiff's counsel maintains that "the 1991 Act and its legislative history require retroactive assessment of compensatory damages and jury trials." The plaintiff criticizes the rationale of the district court in Khandelwal v. Compuadd Corp., 780 F.Supp. 1077 (E.D.Va.1992), and states that the district court in Khandelwal acknowledged that § 402(b) of the Civil Rights Act of 1991 would be meaningless if § 402(a) is not construed as a general rule of retroactivity: "The court dismissed this well settled rule of construction instead relying on the minority party's legislative history." In a footnote, plaintiff's counsel indicates that the district court in Khandelwal "mistakenly relied upon Van Meter v. Barr, 778 F.Supp. 83 (D.D.C.1991) , because Barr is limited to federal employees." Prior to addressing the legislative history of the 1991 Act, plaintiff's counsel characterizes Mojica, supra, as being "far more persuasive than Khandelwal, which recognized that other courts were applying the 1991 Act retroactively." Plaintiff's counsel again cites King v. Shelby Medical Center, supra.

In discussing the legislative history of the 1991 Act, plaintiff's counsel directs attention to House Report No. 102-40(I), which, according to plaintiff's counsel, shows that "the legislative history demonstrates a clear preference for retroactivity." (Plaintiff's brief, at page 5). The House Report also mentions that the 1991 Act was to be applied to all proceedings pending on or commenced after the date of enactment. Plaintiff's counsel indicates that the House of Representatives "intended the damage remedy to be applied retroactively because it had given employers ample time to comply with the law." Plaintiff's counsel, inter alia, specifically refers to the defeat of the "Republican" amendment to H.R. 1, which stated that the 1991 Act would not apply to any claim arising before the date of enactment.

Plaintiff's counsel also refers to the so-called ...