OCTOBER TERM, 1993
Syllabus
LANDGRAF v. USI FILM PRODUCTS ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No. 92-757. Argued October 13, 1993-Decided April 26, 1994
After a bench trial in petitioner Landgraf's suit under Title
VII of the Civil Rights Act of 1964 (Title VII), the District Court
found that she had been sexually harassed by a co-worker at
respondent USI Film Products, but that the harassment was not so
severe as to justify her decision to resign her position. Because
the court found that her employment was not terminated in violation
of Title VII, she was not entitled to equitable relief, and because
Title VII did not then authorize any other form of relief, the
court dismissed her complaint. While her appeal was pending, the
Civil Rights Act of 1991 (1991 Act or Act) became law, § 102 of
which includes provisions that create a right to recover
compensatory and punitive damages for intentional discrimination
violative of Title VII (hereinafter § 102(a)), and authorize any
party to demand a jury trial if such damages are claimed
(hereinafter § 102(c)). In affirming, the Court of Appeals rejected
Landgraf's argument that her case should be remanded for a jury
trial on damages pursuant to § 102.
Held: Section 102 does not apply to a Title VII case that was
pending on appeal when the 1991 Act was enacted. Pp. 250-286.
(a) Since the President vetoed a 1990 version of the Act on the
ground, among others, of perceived unfairness in the bill's
elaborate retroactivity provision, it is likely that the omission
of comparable language in the 1991 Act was not congressional
oversight or unawareness, but was a compromise that made the Act
possible. That omission is not dispositive here because it does not
establish precisely where the compromise was struck. For example, a
decision to reach only cases still pending, and not those already
finally decided, might explain Congress' failure to provide in the
1991 Act, as it had in the 1990 bill, that certain sections would
apply to proceedings pending on specified preenactment dates. Pp.
250-257.
(b) The text of the 1991 Act does not evince any clear
expression of congressional intent as to whether § 102 applies to
cases arising before the Act's passage. The provisions on which
Landgraf relies for such an expression-§ 402(a), which states that,
"[e]xcept as otherwise specifically provided, this Act and the
amendments made by this Act shall take effect upon enactment," and
§§ 402(b) and 109(c), which provide for prospective application in
limited contexts-cannot bear the heavy
245
weight she would place upon them by negative inference: Her
statutory argument would require the Court to assume that Congress
chose a surprisingly indirect route to convey an important and
easily expressed message. Moreover, the relevant legislative
history reveals little to suggest that Members of Congress believed
that an agreement had been tacitly reached on the controversial
retroactivity issue or that Congress understood or intended the
interplay of the foregoing sections to have the decisive effect
Landgraf assigns them. Instead, the history conveys the impression
that legislators agreed to disagree about whether and to what
extent the Act would apply to pre enactment conduct. pp.
257-263.
(c) In order to resolve the question left open by the 1991 Act,
this Court must focus on the apparent tension between two seemingly
contradictory canons for interpreting statutes that do not specify
their temporal reach: the rule that a court must apply the law in
effect at the time it renders its decision, see Bradley v. School
Bd. of Richmond,
416
U. S. 696, 711, and the axiom that statutory retroactivity is
not favored, see Bowen v. Georgetown Univ. Hospital,
488 U. S. 204, 208. Pp.
263-265.
(d) The presumption against statutory retroactivity is founded
upon elementary considerations of fairness dictating that
individuals should have an opportunity to know what the law is and
to conform their conduct accordingly. It is deeply rooted in this
Court's jurisprudence and finds expression in several
constitutional provisions, including, in the criminal context, the
Ex Post Facto Clause. In the civil context, prospectivity remains
the appropriate default rule unless Congress has made clear its
intent to disrupt settled expectations. Pp. 265-273.
(e) Thus, when a case implicates a federal statute enacted after
the events giving rise to the suit, a court's first task is to
determine whether Congress has expressly prescribed the statute's
proper reach. If Congress has done so, there is no need to resort
to judicial default rules. Where the statute in question
unambiguously applies to pre enactment conduct, there is no
conflict between the antiretroactivity presumption and the
principle that a court should apply the law in effect at the time
of decision. Even absent specific legislative authorization,
application of a new statute to cases arising before its enactment
is unquestionably proper in many situations. However, where the new
statute would have a genuinely retroactive effect-i. e., where it
would impair rights a party possessed when he acted, increase his
liability for past conduct, or impose new duties with respect to
transactions already completedthe traditional presumption teaches
that the statute does not govern absent clear congressional intent
favoring such a result. Bradley did not displace the traditional
presumption. Pp. 273-280.
246
Syllabus
(f) Application of the foregoing principles demonstrates that,
absent guiding instructions from Congress, § 102 is not the type of
provision that should govern cases arising before its enactment,
but is instead subject to the presumption against statutory
retroactivity. Section 102(b)(1), which authorizes punitive damages
in certain circumstances, is clearly subject to the presumption,
since the very labels given "punitive" or "exemplary" damages, as
well as the rationales supporting them, demonstrate that they share
key characteristics of criminal sanctions, and therefore would
raise a serious question under the Ex Post Facto Clause if
retroactively imposed. While the § 102(a)(1) provision authorizing
compensatory damages is not so easily classified, it is also
subject to the presumption, since it confers a new right to
monetary relief on persons like Landgraf, who were victims of a
hostile work environment but were not constructively discharged,
and substantially increases the liability of their employers for
the harms they caused, and thus would operate "retrospectively" if
applied to pre enactment conduct. Although a jury trial right is
ordinarily a procedural change of the sort that would govern in
trials conducted after its effective date regardless of when the
underlying conduct occurred, the jury trial option set out in §
102(c)(1) must fall with the attached damages provisions because §
102(c) makes a jury trial available only "[i]f a complaining party
seeks compensatory or punitive damages." Pp.280-286.
968 F.2d
427, affirmed.
STEVENS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SOUTER, and GINSBURG, JJ., joined.
SCALIA, J., filed an opinion concurring in the judgment, in which
KENNEDY and THOMAS, JJ., joined, post, p. 286. BLACKMUN, J., filed
a dissenting opinion, post, p.294.
Eric Schnapper argued the cause for petitioner. On the briefs
were Paul C. Saunders, Timothy B. Garrigan, Richard T. Seymour, and
Sharon R. Vinick.
Solicitor General Days argued the cause for the United States et
al. as amici curiae urging reversal. On the brief were Acting
Solicitor General Bryson, Acting Assistant Attorney General Turner,
Deputy Solicitor General Wallace, Robert A. Long, Jr., David K.
Flynn, Dennis
J. Dimsey, Rebecca K. Troth, and Donald R.
Livingston.
247
Glen D. Nager argued the cause for respondents. On the brief was
David N. Shane.
*
JUSTICE STEVENS delivered the opinion of the Court.
The Civil Rights Act of 1991 (1991 Act or Act) creates a right
to recover compensatory and punitive damages for certain violations
of Title VII of the Civil Rights Act of 1964. See Rev. Stat. § 1977
A(a), 42 U. S. C. § 1981a(a) (1988 ed., Supp. IV), as added by §
102 of the 1991 Act, Pub. L. 102-166, 105 Stat. 1072. The Act
further provides that any party may demand a trial by jury if such
damages are sought.1 We granted certiorari to decide whether these
provisions apply to a Title VII case that was pending on appeal
when the statute was enacted. We hold that they do not.
I
From September 4, 1984, through January 17, 1986, petitioner
Barbara Landgraf was employed in the USI Film
*Briefs of amici curiae urging reversal were filed for the Asian
American Legal Defense and Education Fund et al. by Denny Chin,
Doreena Wong, and Angelo N Ancheta; and for the National Women's
Law Center et al. by Judith E. Schaeffer and Ellen
J.
Vargyas.
Briefs of amici curiae urging affirmance were filed for the
American Trucking Associations et al. by James D. Holzhauer, Andrew
L. Frey, Kenneth S. Geller, Javier H. Rubinstein, Daniel R. Barney,
and Kenneth
Briefs of amici curiae were filed for the Equal Employment
Advisory Council et al. by Robert E. Williams, Douglas S. McDowell,
and Mona C. Zeiberg; for the National Association for the
Advancement of Colored People et al. by Marc L. Fleischaker, David
L. Kelleher, Steven S. Zaleznick, Cathy Ventrell-Monsees, Steven M.
Freeman, Michael Lieberman, Dennis Courtland Hayes, Willie Abrams,
Samuel Rabinove, and Richard Foltin; and for Wards Cove Packing Co.
by Douglas M. Fryer, Douglas M. Duncan, and Richard L.
Phillips.
1 See Rev. Stat. § 1977A(c), 42 U. S. C. § 1981a(c) (1988 ed.,
Supp. IV), as added by § 102 of the 1991 Act. For simplicity, and
in conformity with the practice of the parties, we will refer to
the damages and jury trial provisions as §§ 102(a) and (c),
respectively.
248
Products (USI) plant in Tyler, Texas. She worked the 11 p.m. to
7 a.m. shift operating a machine that produced plastic bags. A
fellow employee named John Williams repeatedly harassed her with
inappropriate remarks and physical contact. Petitioner's complaints
to her immediate supervisor brought her no relief, but when she
reported the incidents to the personnel manager, he conducted an
investigation, reprimanded Williams, and transferred him to another
department. Four days later petitioner quit her job.
Petitioner filed a timely charge with the Equal Employment
Opportunity Commission (EEOC or Commission). The Commission
determined that petitioner had likely been the victim of sexual
harassment creating a hostile work environment in violation of
Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et
seq., but concluded that her employer had adequately remedied the
violation. Accordingly, the Commission dismissed the charge and
issued a notice of right to sue.
On July 21, 1989, petitioner commenced this action against USI,
its corporate owner, and that company's successor in interest.2
After a bench trial, the District Court found that Williams had
sexually harassed petitioner causing her to suffer mental anguish.
However, the court concluded that she had not been constructively
discharged. The court said:
"Although the harassment was serious enough to establish that a
hostile work environment existed for Landgraf, it was not so severe
that a reasonable person would have felt compelled to resign. This
is particularly true in light of the fact that at the time Landgraf
resigned from her job, USI had taken steps ... to eliminate the
hostile working environment arising from the sexual harassment.
Landgraf voluntarily resigned
2 Respondent Quantum Chemical Corporation owned the USI plant
when petitioner worked there. Respondent Bonar Packaging, Inc.,
subsequently purchased the operation.
249
from her employment with USI for reasons unrelated to the sexual
harassment in question." App. to Pet. for Cert. B-3-4.
Because the court found that petitioner's employment was not
terminated in violation of Title VII, she was not entitled to
equitable relief, and because Title VII did not then authorize any
other form of relief, the court dismissed her complaint.
On November 21, 1991, while petitioner's appeal was pending, the
President signed into law the Civil Rights Act of 1991. The Court
of Appeals rejected petitioner's argument that her case should be
remanded for a jury trial on damages pursuant to the 1991 Act. Its
decision not to remand rested on the premise that "a court must
'apply the law in effect at the time it renders its decision,
unless doing so would result in manifest injustice or there is
statutory direction or legislative history to the contrary.'
Bradley [v. School Bd. of Richmond,
416 U. S. 696, 711
(1974)]."
968 F.2d
427, 432 (CA5 1992). Commenting first on the provision for a
jury trial in § 102(c), the court stated that requiring the
defendant "to retry this case because of a statutory change enacted
after the trial was completed would be an injustice and a waste of
judicial resources. We apply procedural rules to pending cases, but
we do not invalidate procedures followed before the new rule was
adopted." Id., at 432-433. The court then characterized the
provision for compensatory and punitive damages in § 102 as "a
seachange in employer liability for Title VII violations" and
concluded that it would be unjust to apply this kind of additional
and unforeseeable obligation to conduct occurring before the
effective date of the Act. Id., at 433. Finding no clear error in
the District Court's factual findings, the Court of Appeals
affirmed the judgment for respondents.
We granted certiorari and set the case for argument with Rivers
v. Roadway Express, Inc., post, p. 298. Our order limited argument
to the question whether § 102 of the 1991
250
Act applies to cases pending when it became law. 507 U. S. 908
(1993). Accordingly, for purposes of our decision, we assume that
the District Court and the Court of Appeals properly applied the
law in effect at the time of the discriminatory conduct and that
the relevant findings of fact were correct. We therefore assume
that petitioner was the victim of sexual harassment violative of
Title VII, but that the law did not then authorize any recovery of
damages even though she was injured. We also assume, arguendo, that
if the same conduct were to occur today, petitioner would be
entitled to a jury trial and that the jury might find that she was
constructively discharged, or that her mental anguish or other
injuries would support an award of damages against her former
employer. Thus, the controlling question is whether the Court of
Appeals should have applied the law in effect at the time the
discriminatory conduct occurred, or at the time of its decision in
July 1992.
II
Petitioner's primary submission is that the text of the 1991 Act
requires that it be applied to cases pending on its enactment. Her
argument, if accepted, would make the entire Act (with two narrow
exceptions) applicable to conduct that occurred, and to cases that
were filed, before the Act's effective date. Although only § 102 is
at issue in this case, we preface our analysis with a brief
description of the scope of the 1991 Act.
The 1991 Act is in large part a response to a series of
decisions of this Court interpreting the Civil Rights Acts of 1866
and 1964. Section 3(4), 105 Stat. 1071, note following 42 U. S. C.
§ 1981, expressly identifies as one of the Act's purposes "to
respond to recent decisions of the Supreme Court by expanding the
scope of relevant civil rights statutes in order to provide
adequate protection to victims of discrimination." That section, as
well as a specific finding in § 2(2), identifies Wards Cove Packing
Co. v. Atonio, 490 U. S. 642
251
(1989), as a decision that gave rise to special concerns.3
Section 105 of the Act, entitled "Burden of Proof in Disparate
Impact Cases," is a direct response to Wards Cove.
Other sections of the Act were obviously drafted with "recent
decisions of the Supreme Court" in mind. Thus, § 101 (which is at
issue in Rivers, post, p. 298) amended the 1866 Civil Rights Act's
prohibition of racial discrimination in the "mak[ing] and
enforce[ment] [of] contracts," 42 U. S. C. § 1981 (1988 ed., Supp.
IV), in response to Patterson v. McLean Credit Union,
491 U. S. 164 (1989); §
107 responds to Price Waterhouse v. Hopkins,
490 U. S. 228 (1989), by
setting forth standards applicable in "mixed motive" cases; § 108
responds to Martin v. Wilks,
490 U. S. 755 (1989), by
prohibiting certain challenges to employment practices implementing
consent decrees; § 109 responds to EEOC v. Arabian American Oil
Co.,
499 U. S.
244 (1991), by redefining the term "employee" as used in Title
VII to include certain United States citizens working in foreign
countries for United States employers; § 112 responds to Lorance v.
AT&T Technologies, Inc.,
490 U. S. 900 (1989), by
expanding employees' rights to challenge discriminatory seniority
systems; § 113 responds to West Virginia Univ. Hospitals, Inc. v.
Casey,
499 U. S.
83 (1991), by providing that an award of attorney's fees may
include expert fees; and § 114 responds to Library of Congress v.
Shaw,
478 U. S.
310 (1986), by allowing interest on judgments against the
United States.
A number of important provisions in the Act, however, were not
responses to Supreme Court decisions. For example, § 106 enacts a
new prohibition against adjusting test
3 Section 2(2) finds that the Wards Cove decision "has weakened
the scope and effectiveness of Federal civil rights protections,"
and § 3(2) expresses Congress' intent "to codify" certain concepts
enunciated in "Supreme Court decisions prior to Wards Cove Packing
Co. v. Atonio,
490 U.
S. 642 (1989)." We take note of the express references to that
case because it is the focus of § 402(b), on which petitioner
places particular reliance. See infra, at 258-263.
252
scores "on the basis of race, color, religion, sex, or national
origin"; § 117 extends the coverage of Title VII to include the
House of Representatives and certain employees of the Legislative
Branch; and §§ 301-325 establish special procedures to protect
Senate employees from discrimination. Among the provisions that did
not directly respond to any Supreme Court decision is the one at
issue in this case, § 102.
Entitled "Damages in Cases of Intentional Discrimination," § 102
provides in relevant part:
"(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 2000e3), 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 ... in addition
to any relief authorized by section 706(g) of the Civil Rights Act
of 1964, from the respondent.
"(c) Jury Trial.-If a complaining party seeks compensatory or
punitive damages under this section-
"(1) any party may demand a trial by jury."
Before the enactment of the 1991 Act, Title VII afforded only
"equitable" remedies. The primary form of monetary relief available
was backpay.4 Title VII's backpay rem-
4 We have not decided whether a plaintiff seeking backpay under
Title VII is entitled to a jury trial. See, e. g., Lytle v.
Household Mfg., Inc.,
494 U. S. 545, 549, n. 1
(1990) (assuming without deciding no right to jury trial);
Teamsters v. Terry,
494 U. S. 558, 572 (1990)
(same). Because peti-
253
edy,5 modeled on that of the National Labor Relations Act, 29 U.
S. C. § 160(c), is a "make-whole" remedy that resembles
compensatory damages in some respects. See Albemarle Paper Co. v.
Moody,
422 U. S.
405, 418-422 (1975). However, the new compensatory damages
provision of the 1991 Act is "in addition to," and does not replace
or duplicate, the backpay remedy allowed under prior law. Indeed,
to prevent double recovery, the 1991 Act provides that compensatory
damages "shall not include backpay, interest on backpay, or any
other type of relief authorized under section 706(g) of the Civil
Rights Act of 1964." § 102(b)(2).
Section 102 significantly expands the monetary relief
potentially available to plaintiffs who would have been entitled to
backpay under prior law. Before 1991, for example, monetary relief
for a discriminatorily discharged employee generally included "only
an amount equal to the wages the employee would have earned from
the date of discharge to the date of reinstatement, along with lost
fringe benefits such as vacation pay and pension benefits." United
States v. Burke,
504
U. S. 229, 239 (1992). Under § 102, however, a Title VII
plaintiff who wins a backpay award may also seek compensatory
damages for "future pecuniary losses, emotional pain, suffering,
inconvenience, mental anguish, loss of enjoyment of life, and other
nonpecuniary losses." § 102(b)(3). In ad-
tioner does not argue that she had a right to jury trial even
under pre-1991 law, again we need not address this question.
5 "If the court finds that the respondent has intentionally
engaged in ... an unlawful employment practice charged in the
complaint, the court may ... order such affirmative action as may
be appropriate, which may include, but is not limited to,
reinstatement or hiring of employees, with or without back pay ...
or any other equitable relief as the court deems appropriate. Back
pay liability shall not accrue from a date more than two years
prior to the filing of a charge with the Commission. Interim
earnings or amounts earnable with reasonable diligence by the
person or persons discriminated against shall operate to reduce the
back pay otherwise allowable." Civil Rights Act of 1964, § 706(g),
as amended, 42 U. S. C. § 2000e-5(g) (1988 ed., Supp. IV).
254
dition, when it is shown that the employer acted "with malice or
with reckless indifference to the [plaintiff's] federally protected
rights," § 102(b)(1), a plaintiff may recover punitive
damages.6
Section 102 also allows monetary relief for some forms of
workplace discrimination that would not previously have justified
any relief under Title VII. As this case illustrates, even
if unlawful discrimination was proved, under prior law a Title VII
plaintiff could not recover monetary relief unless the
discrimination was also found to have some concrete effect on the
plaintiff's employment status, such as a denied promotion, a
differential in compensation, or termination. See Burke, 504 U. S.,
at 240. ("[T]he circumscribed remedies available under Title VII
[before the 1991 Act] stand in marked contrast not only to those
available under traditional tort law, but under other federal
anti-discrimination statutes, as well"). Section 102, however,
allows a plaintiff to recover in circumstances in which there has
been unlawful discrimination in the "terms, conditions, or
privileges of employment," 42 U. S. C. § 2000e-2(a)(1),7 even
though the discrimination did not involve a discharge or a loss of
pay. In short, to further Title VII's "central statutory purposes
of eradicating discrimination throughout the economy and making
persons whole for injuries suffered through past discrimination,"
Albemarle Paper Co., 422 U. S., at 421, § 102 of the
6 Section 102(b)(3) imposes limits, varying with the size of the
employer, on the amount of compensatory and punitive damages that
may be awarded to an individual plaintiff. Thus, the sum of such
damages awarded a plaintiff may not exceed $50,000 for employers
with between 14 and 100 employees; $100,000 for employers with
between 101 and 200 employees; $200,000 for employers with between
200 and 500 employees; and $300,000 for employers with more than
500 employees.
7See Harris v. Forklift Systems, Inc.,
510 U. S. 17,21 (1993)
(discrimination in "terms, conditions, or privileges of employment"
actionable under Title VII "is not limited to 'economic' or
'tangible' discrimination") (citations and internal quotation marks
omitted).
255
1991 Act effects a major expansion in the relief available to
victims of employment discrimination.
In 1990, a comprehensive civil rights bill passed both Houses of
Congress. Although similar to the 1991 Act in many other respects,
the 1990 bill differed in that it contained language expressly
calling for application of many of its provisions, including the
section providing for damages in cases of intentional employment
discrimination, to cases arising before its (expected) enactment.8
The President ve-
8The relevant section of the Civil Rights Act of 1990, S. 2104,
101st Cong., 1st Sess. (1990), provided:
"SEC. 15. ApPLICATION OF AMENDMENTS AND TRANSITION RULES. "(a)
ApPLICATION OF AMENDMENTS.- The amendments made by-
"(1) section 4 shall apply to all proceedings pending on or
commenced after June 5, 1989 [the date of Wards Cove Packing Co. v.
Atonio, 490
"(2) section 5 shall apply to all proceedings pending on or
commenced after May 1, 1989 [the date of Price Waterhouse v.
Hopkins,
490 U. S.
228]; "(3) section 6 shall apply to all proceedings pending on
or commenced after June 12, 1989 [the date of Martin v. Wilks,
490 U. S.
755];
"(4) sections 7(a)(1), 7(a)(3) and 7(a)(4), 7(b), 8 [providing
for compensatory and punitive damages for intentional
discrimination], 9, 10, and 11 shall apply to all proceedings
pending on or commenced after the date of enactment of this
Act;
"(5) section 7(a)(2) shall apply to all proceedings pending on
or after June 12, 1989 [the date of Lorance v. AT&T
Technologies, Inc.,
490 U. S. 900]; and
"(6) section 12 shall apply to all proceedings pending on or
commenced after June 15, 1989 [the date of Patterson v. McLean
Credit Union, 491
"(b) TRANSITION RULES.-
"(1) IN GENERAL.-Any orders entered by a court between the
effective dates described in subsection (a) and the date of
enactment of this Act that are inconsistent with the amendments
made by sections 4, 5, 7(a)(2), or 12, shall be vacated if, not
later than 1 year after such date of enactment, a request for such
relief is made.
"(3) FINAL JUDGMENTS.-Pursuant to paragraphs (1) and (2), any
final judgment entered prior to the date of the enactment of this
Act as to which the rights of any of the parties thereto have
become fixed and
256
toed the 1990 legislation, however, citing the bill's "unfair
retroactivity rules" as one reason for his disapprovaI.9 Congress
narrowly failed to override the veto. See 136 Congo Rec. S16589
(Oct. 24, 1990) (66 to 34 Senate vote in favor of override).
The absence of comparable language in the 1991 Act cannot
realistically be attributed to oversight or to unawareness of the
retroactivity issue. Rather, it seems likely that one of the
compromises that made it possible to enact the 1991 version was an
agreement
not to include the kind of explicit retroactivity
command found in the 1990 bill.
The omission of the elaborate retroactivity provision of the
1990 bill-which was by no means the only source of political
controversy over that legislation-is not dispositive because it
does not tell us precisely where the compromise was struck in the
1991 Act. The Legislature might, for example, have settled in 1991
on a less expansive form of retroactivity that, unlike the 1990
bill, did not reach cases already finally decided. See n. 8, supra.
A decision to reach only cases still pending might explain
Congress' failure to provide in the
vested, where the time for seeking further judicial review of
such judgment has otherwise expired pursuant to title 28 of the
United States Code, the Federal Rules of Civil Procedure, and the
Federal Rules of Appellate Procedure, shall be vacated in whole or
in part if justice requires pursuant to rule 60(b)(6) of the
Federal Rules of Civil Procedure or other appropriate authority,
and consistent with the constitutional requirements of due process
of law."
9 See President's Message to the Senate Returning Without
Approval the Civil Rights Act of 1990, 26 Weekly Compo Pres. Doc.
1632-1634 (Oct. 22, 1990), reprinted in 136 Congo Rec. SI6418,
S16419 (Oct. 22, 1990). The President's veto message referred to
the bill's "retroactivity" only briefly; the Attorney General's
Memorandum to which the President referred was no more expansive,
and may be read to refer only to the bill's special provision for
reopening final judgments, see n. 8, supra, rather than its
provisions covering pending cases. See Memorandum of the Attorney
General to the President (Oct. 22, 1990) in App. to Brief for
Petitioner A-13 ("And Section 15 unfairly applies the changes in
the law made by S. 2104 to cases already decided") (emphasis
added).
257
1991 Act, as it had in 1990, that certain sections would apply
to proceedings pending on specific preenactment dates. Our first
question, then, is whether the statutory text on which petitioner
relies manifests an intent that the 1991 Act should be applied to
cases that arose and went to trial before its enactment.
III
Petitioner's textual argument relies on three provisions of the
1991 Act: §§ 402(a), 402(b), and 109(c). Section 402(a), the only
provision of the Act that speaks directly to the question before
us, states:
"Except as otherwise specifically provided, this Act and the
amendments made by this Act shall take effect upon enactment."
That language does not, by itself, resolve the question before
us. A statement that a statute will become effective on a certain
date does not even arguably suggest that it has any application to
conduct that occurred at an earlier date.10
10 The history of prior amendments to Title VII suggests that
the "effective-upon-enactment" formula would have been an
especially inapt way to reach pending cases. When it amended Title
VII in the Equal Employment Opportunity Act of 1972, Congress
explicitly provided:
"The amendments made by this Act to section 706 of the Civil
Rights Act of 1964 shall be applicable with respect to charges
pending with the Commission on the date of enactment of this Act
and all charges filed thereafter." Pub. L. 92-261, § 14, 86 Stat.
113. In contrast, in amending Title VII to bar discrimination on
the basis of pregnancy in 1978, Congress provided:
"Except as provided in subsection (b), the amendment made by
this Act shall be effective on the date of enactment." § 2(a), 92
Stat. 2076.
The only Courts of Appeals to consider whether the 1978
amendments applied to pending cases concluded that they did not.
See Schwabenbauer v. Board of Ed. of School Dist. of Olean,
667 F.2d
305, 310, n. 7 (CA2 1981); Condit v. United Air Lines, Inc.,
631 F.2d
1136, 1139-1140 (CA4 1980). See also Jensen v. Gulf Oil
Refining & Marketing Co.,
623 F.2d
406, 410
(CA5 1980) (Age Discrimination in Employment
Act amendments designated to "take effect on the date of enactment
of this Act" inapplica-
258
Petitioner does not argue otherwise. Rather, she contends that
the introductory clause of § 402(a) would be superfluous unless it
refers to §§ 402(b) and 109(c), which provide for prospective
application in limited contexts.
The parties agree that § 402(b) was intended to exempt a single
disparate impact lawsuit against the Wards Cove Packing Company.
Section 402(b) provides:
"(b) CERTAIN DISPARATE IMPACT CASES.-Notwithstanding any other
provision of this Act, nothing in this Act shall apply to any
disparate impact case for which a complaint was filed before March
1, 1975, and for which an initial decision was rendered after
October 30, 1983."
Section 109(c), part of the section extending Title VII to
overseas employers, states:
"(c) ApPLICATION OF AMENDMENTs.-The amendments made by this
section shall not apply with respect to conduct occurring before
the date of the enactment of this Act."
According to petitioner, these two subsections are the "other
provisions" contemplated in the first clause of § 402(a), and
together create a strong negative inference that all sections of
the Act not specifically declared prospective apply to pending
cases that arose before November 21, 1991.
Before addressing the particulars of petitioner's argument, we
observe that she places extraordinary weight on two comparatively
minor and narrow provisions in a long and complex statute. Applying
the entire Act to cases arising from preenactment conduct would
have important consequences, including the possibility that trials
completed before its en-
ble to case arising before enactment); Sikora v. American Can
Co.,
622 F.2d
1116, 1119-1124
(CA3 1980) (same). If we assume that
Congress was familiar with those decisions, cf. Cannon v.
University of Chicago,
441 U. S. 677, 698-699
(1979), its choice of language in §402(a) would imply
nonretroactivity.
259
actment would need to be retried and the possibility that
employers would be liable for punitive damages for conduct
antedating the Act's enactment. Purely prospective application, on
the other hand, would prolong the life of a remedial scheme, and of
judicial constructions of civil rights statutes, that Congress
obviously found wanting. Given the high stakes of the retroactivity
question, the broad coverage of the statute, and the prominent and
specific retroactivity provisions in the 1990 bill, it would be
surprising for Congress to have chosen to resolve that question
through negative inferences drawn from two provisions of quite
limited effect.
Petitioner, however, invokes the canon that a court should give
effect to every provision of a statute and thus avoid redundancy
among different provisions. See, e. g., Mackey v. Lanier Collection
Agency & Service, Inc.,
486 U. S. 825, 837, and
n. 11 (1988). Unless the word "otherwise" in § 402(a) refers to
either § 402(b) or § 109(c), she contends, the first five words in
§ 402(a) are entirely superfluous. Moreover, relying on the canon
"[elxpressio unius est exclusio alterius," see Leatherman v.
Tarrant County Narcotics Intelligence and Coordination Unit,
507 U. S. 163,
168 (1993), petitioner argues that because Congress provided
specifically for prospectivity in two places (§§ 109(c) and
402(b)), we should infer that it intended the opposite for the
remainder of the statute.
Petitioner emphasizes that § 402(a) begins: "Except as otherwise
specifically provided." A scan of the statute for other "specific
provisions" concerning effective dates reveals that §§ 402(b) and
109(c) are the most likely candidates. Since those provisions
decree prospectivity, and since § 402(a) tells us that the specific
provisions are exceptions, § 402(b) should be considered as
prescribing a general rule of retroactivity. Petitioner's argument
has some force, but we find it most unlikely that Congress intended
the introductory clause to carry the critically important meaning
petitioner assigns it. Had Congress wished § 402(a) to have such a
de-
260
terminate meaning, it surely would have used language comparable
to its reference to the predecessor Title VII damages provisions in
the 1990 legislation: that the new provisions "shall apply to all
proceedings pending on or commenced after the date of enactment of
this Act." S. 2104, 101st Cong., 1st Sess. § 15(a)(4) (1990).
It is entirely possible that Congress inserted the "otherwise
specifically provided" language not because it understood the
"takes effect" clause to establish a rule of retroactivity to which
only two "other specific provisions" would be exceptions, but
instead to assure that any specific timing provisions in the Act
would prevail over the general "take effect on enactment" command.
The drafters of a complicated piece of legislation containing more
than 50 separate sections may well have inserted the "except as
otherwise provided" language merely to avoid the risk of an
inadvertent conflict in the statute.ll If the introductory clause
of § 402(a) was intended to refer specifically to §§ 402(b),
109(c), or both, it is difficult to understand why the drafters
chose the word "otherwise" rather than either or both of the
appropriate section numbers.
We are also unpersuaded by petitioner's argument that both §§
402(b) and 109(c) merely duplicate the "take effect upon enactment"
command of § 402(a) unless all other provisions, including the
damages provisions of § 102, apply to pending cases. That argument
depends on the assumption that all those other provisions must be
treated uniformly for purposes of their application to pending
cases based on preenactment conduct. That thesis, however, is by
no
11 There is some evidence that the drafters of the 1991 Act did
not devote particular attention to the interplay of the Act's
"effective date" provisions. Section 110, which directs the EEOC to
establish a "Technical Assistance Training Institute" to assist
employers in complying with antidiscrimination laws and
regulations, contains a subsection providing that it "shall take
effect on the date of the enactment of this Act." § 110(b). That
provision and § 402(a) are unavoidably redundant.
261
means an inevitable one. It is entirely possible-indeed, highly
probable-that, because it was unable to resolve the retroactivity
issue with the clarity of the 1990 legislation, Congress viewed the
matter as an open issue to be resolved by the courts. Our
precedents on retroactivity left doubts about what default rule
would apply in the absence of congressional guidance, and suggested
that some provisions might apply to cases arising before enactment
while others might not.12 Compare Bowen v. Georgetown Univ.
Hospital,
488 U. S.
204 (1988), with Bradley v. School Bd. of Richmond,
416 U. S. 696 (1974). See
also Bennett v. New Jersey,
470 U. S. 632 (1985). The
only matters Congress did not leave to the courts were set out with
specificity in §§ 109(c) and 402(b). Congressional doubt concerning
judicial retroactivity doctrine, coupled with the likelihood that
the routine "take effect upon enactment" language would require
courts to fall back upon that doctrine, provide a plausible
explanation for both §§ 402(b) and 109(c) that makes neither
provision redundant.
Turning to the text of § 402(b), it seems unlikely that the
introductory phrase ("Notwithstanding any other provision of this
Act") was meant to refer to the immediately preceding subsection.
Since petitioner does not contend that any other provision speaks
to the general effective date issue, the logic of her argument
requires us to interpret that phrase to mean nothing more than
"Notwithstanding § 402(a)." Petitioner's textual argument assumes
that the drafters selected the indefinite word "otherwise" in §
402(a) to identify two
12 This point also diminishes the force of petitioner's
"expressio unius" argument. Once one abandons the unsupported
assumption that Congress expected that all of the Act's provisions
would be treated alike, and takes account of uncertainty about the
applicable default rule, §§ 109(c) and 402(b) do not carry the
negative implication petitioner draws from them. We do not read
either provision as doing anything more than definitively rejecting
retroactivity with respect to the specific matters covered by its
plain language.
262
specific subsections and the even more indefinite term "any
other provision" in § 402(b) to refer to nothing more than §
402(b)'s next-door neighbor-§ 402(a). Here again, petitioner's
statutory argument would require us to assume that Congress chose a
surprisingly indirect route to convey an important and easily
expressed message concerning the Act's effect on pending cases.
The relevant legislative history of the 1991 Act reinforces our
conclusion that §§ 402(a), 109(c), and 402(b) cannot bear the
weight petitioner places upon them. The 1991 bill as originally
introduced in the House contained explicit retroactivity provisions
similar to those found in the 1990 bill.13 However, the Senate
substitute that was agreed upon omitted those explicit
retroactivity provisions.14 The legislative history discloses some
frankly partisan statements about the meaning of the final
effective date language, but those statements cannot plausibly be
read as reflecting any general agreement. 15 The history reveals no
evidence that Mem-
13 See, e.
g., H. R. 1, 102d Cong., 1st Sess. § 113
(1991), reprinted in 137 Congo Rec. H3924-H3925 (Jan. 3, 1991). The
prospectivity proviso to the section extending Title VII to
overseas employers was first added to legislation that generally
was to apply to pending cases. See H. R. 1, 102d Cong., 1st Sess. §
119(c) (1991), reprinted in 137 Congo Rec. H3925-H3926 (June 5,
1991). Thus, at the time its language was introduced, the provision
that became § 109(c) was surely not redundant.
14 On the other hand, two proposals that would have provided
explicitly for prospectivity also foundered. See 137 Congo Rec.
S3021, S3023 (Mar. 12, 1991);
id., at 13255,
13265-13266.
15 For example, in an "interpretive memorandum" introduced on
behalf of seven Republican sponsors of S. 1745, the bill that
became the 1991 Act, Senator Danforth stated that "[t]he bill
provides that, unless otherwise specified, the provisions of this
legislation shall take effect upon enactment and shall not apply
retroactively." Id., at 29047 (emphasis added). Senator Kennedy
responded that it "will be up to the courts to determine the extent
to which the bill will apply to cases and claims that were pending
on the date of enactment." Ibid. (citing Bradley V. School Bd. of
Richmond,
416 U. S.
696 (1974)). The legislative history reveals other partisan
statements on the proper meaning of the Act's "effective date"
provisions. Senator Danforth observed that such statements carry
little weight as legislative history. As he put it:
263
bers believed that an agreement had been tacitly struck on the
controversial retroactivity issue, and little to suggest that
Congress understood or intended the interplay of §§ 402(a), 402(b),
and 109(c) to have the decisive effect petitioner assigns them.
Instead, the history of the 1991 Act conveys the impression that
legislators agreed to disagree about whether and to what extent the
Act would apply to preenactment conduct.
Although the passage of the 1990 bill may indicate that a
majority of the 1991 Congress also favored retroactive application,
even the will of the majority does not become law unless it follows
the path charted in Article I, § 7, cl. 2, of the Constitution. See
INS v. Chadha,
462 U.
S. 919, 946-951 (1983). In the absence of the kind of
unambiguous directive found in § 15 of the 1990 bill, we must look
elsewhere for guidance on whether § 102 applies to this case.
IV
It is not uncommon to find "apparent tension" between different
canons of statutory construction. As Professor Llewellyn famously
illustrated, many of the traditional canons have equal opposites.16
In order to resolve the question left open by the 1991 Act, federal
courts have labored to
"[A] court would be well advised to take with a large grain of
salt floor debate and statements placed in the CONGRESSIONAL RECORD
which purport to create an interpretation for the legislation that
is before us." 137 Congo Rec. S15325 (Oct. 29, 1991).
16 See Llewellyn, Remarks on the Theory of Appellate Decision
and the Rules or Canons about How Statutes are to be Construed, 3
Vand. L. Rev. 395 (1950). Llewellyn's article identified the
apparent conflict between the canon that
"[a] statute imposing a new penalty or forfeiture, or a new
liability or disability, or creating a new right of action will not
be construed as having a retroactive effect"
and the countervailing rule that
"[r]emedial statutes are to be liberally construed and if a
retroactive interpretation will promote the ends of justice, they
should receive such construction." Id., at 402 (citations
omitted).
264
reconcile two seemingly contradictory statements found in our
decisions concerning the effect of intervening changes in the law.
Each statement is framed as a generally applicable rule for
interpreting statutes that do not specify their temporal reach. The
first is the rule that "a court is to apply the law in effect at
the time it renders its decision," Bradley, 416 U. S., at 711. The
second is the axiom that "[r]etroactivity is not favored in the
law," and its interpretive corollary that "congressional enactments
and administrative rules will not be construed to have retroactive
effect unless their language requires this result." Bowen, 488 U.
S., at 208.
We have previously noted the "apparent tension" between those
expressions. See Kaiser Aluminum & Chemical Corp. v. Bonjorno,
494 U. S. 827,
837 (1990); see also Bennett, 470 U. S., at 639-640. We found it
unnecessary in Kaiser to resolve that seeming conflict "because
under either view, where the congressional intent is clear, it
governs," and the prejudgment interest statute at issue in that
case evinced "clear congressional intent" that it was "not
applicable to judgments entered before its effective date." 499 U.
S., at 837-838. In the case before us today, however, we have
concluded that the 1991 Act does not evince any clear expression of
intent on § 102's application to cases arising before the Act's
enactment. We must, therefore, focus on the apparent tension
between the rules we have espoused for handling similar problems in
the absence of an instruction from Congress.
We begin by noting that there is no tension between the holdings
in Bradley and Bowen, both of which were unanimous decisions.
Relying on another unanimous decisionThorpe v. Housing Authority of
Durham,
393 U. S.
268 (1969)-we held in Bradley that a statute authorizing the
award of attorney's fees to successful civil rights plaintiffs
applied in a case that was pending on appeal at the time the
statute was enacted. Bowen held that the Department of Health and
Human Services lacked statutory authority to
265
promulgate a rule requiring private hospitals to refund Medicare
payments for services rendered before promulgation of the rule. Our
opinion in Bowen did not purport to overrule Bradley or to limit
its reach. In this light, we turn to the "apparent tension" between
the two canons mindful of another canon of unquestionable vitality,
the "maxim not to be disregarded that general expressions, in every
opinion, are to be taken in connection with the case in which those
expressions are used." Co hens v. Virginia, 6 Wheat. 264, 399
(1821).
A
As JUSTICE SCALIA has demonstrated, the presumption against
retroactive legislation is deeply rooted in our jurisprudence, and
embodies a legal doctrine centuries older than our Republic.17
Elementary considerations of fairness dictate that individuals
should have an opportunity to know what the law is and to conform
their conduct accordingly; settled expectations should not be
lightly disrupted.18 For that reason, the "principle that the legal
effect of conduct should ordinarily be assessed under the law that
existed when the conduct took place has timeless and universal
appeal." Kaiser, 494 U. S., at 855 (SCALIA, J., concurring). In
17See Kaiser Aluminum & Chemical Corp. v. Bonjorno,
494 U. S. 827, 842-844,
855-856 (1990) (SCALIA, J., concurring). See also, e. g., Dash v.
Van Kleeck, 7 Johns. *477, *503 (N. Y. 1811) ("It is a principle of
the English common law, as ancient as the law itself, that a
statute, even of its omnipotent parliament, is not to have a
retrospective effect") (Kent, C. J.); Smead, The Rule Against
Retroactive Legislation: A Basic Principle of Jurisprudence, 20
Minn. L. Rev. 775 (1936).
18See General Motors Corp. v. Romein,
503 U. S. 181, 191 (1992)
("Retroactive legislation presents problems of unfairness that are
more serious than those posed by prospective legislation, because
it can deprive citizens of legitimate expectations and upset
settled transactions"); Munzer, A Theory of Retroactive
Legislation, 61 Texas L. Rev. 425, 471 (1982) ("The rule of law ...
is a defeasible entitlement of persons to have their behavior
governed by rules publicly fixed in advance"). See also L. Fuller,
The Morality of Law 51-62 (1964) (hereinafter Fuller).
266
a free, dynamic society, creativity in both commercial and
artistic endeavors is fostered by a rule of law that gives people
confidence about the legal consequences of their actions.
It is therefore not surprising that the antiretroactivity
principle finds expression in several provisions of our
Constitution. The Ex Post Facto Clause flatly prohibits retroactive
application of penallegislation.19 Article I, § 10, cl. 1,
prohibits States from passing another type of retroactive
legislation, laws "impairing the Obligation of Contracts." The
Fifth Amendment's Takings Clause prevents the Legislature (and
other government actors) from depriving private persons of vested
property rights except for a "public use" and upon payment of "just
compensation." The prohibitions on "Bills of Attainder" in Art. I,
§§ 9-10, prohibit legislatures from singling out disfavored persons
and meting out summary punishment for past conduct. See, e. g.,
United States v. Brown,
381 U. S. 437, 456-462
(1965). The Due Process Clause also protects the interests in fair
notice and repose that may be compromised by retroactive
legislation; a justification sufficient to validate a statute's
prospective application under the Clause "may not suffice" to
warrant its retroactive application. Usery v. Turner Elkhorn Mining
Co.,
428 U. S. 1,
17 (1976).
These provisions demonstrate that retroactive statutes raise
particular concerns. The Legislature's unmatched powers allow it to
sweep away settled expectations suddenly and without individualized
consideration. Its responsivity to political pressures poses a risk
that it may be tempted to use retroactive legislation as a means of
retribution against unpopular groups or individuals. As Justice
Marshall observed in his opinion for the Court in Weaver v. Graham,
450 U. S. 24
(1981), the Ex Post Facto Clause not only en-
19 Article I contains two Ex Post Facto Clauses, one directed to
Congress (§ 9, cl. 3), the other to the States (§ 10, cl. 1). We
have construed the Clauses as applicable only to penal legislation.
See Calder v. Bull, 3 Dall. 386, 390-391 (1798) (opinion of Chase,
J.).
267
sures that individuals have "fair warning" about the effect of
criminal statutes, but also "restricts governmental power by
restraining arbitrary and potentially vindictive legislation." Id.,
at 28-29 (citations omitted).20
The Constitution's restrictions, of course, are of limited
scope. Absent a violation of one of those specific provisions, the
potential unfairness of retroactive civil legislation is not a
sufficient reason for a court to fail to give a statute its
intended scope.21 Retroactivity provisions often serve en-
20 See Richmond v.
J. A. Croson Co.,
488 U. S. 469, 513-514
(1989) ("Legislatures are primarily policymaking bodies that
promulgate rules to govern future conduct. The constitutional
prohibitions against the enactment of ex post facto laws and bills
of attainder reflect a valid concern about the use of the political
process to punish or characterize past conduct of private citizens.
It is the judicial system, rather than the legislative process,
that is best equipped to identify past wrongdoers and to fashion
remedies that will create the conditions that presumably would have
existed had no wrong been committed") (STEVENS, J., concurring in
part and concurring in judgment); James v. United States,
366 U. S. 213, 247, n. 3
(1961) (retroactive punitive measures may reflect "a purpose not to
prevent dangerous conduct generally but to impose by legislation a
penalty against specific persons or classes of persons").
James Madison argued that retroactive legislation also offered
special opportunities for the powerful to obtain special and
improper legislative benefits. According to Madison, "[b]ills of
attainder, ex post facto laws, and laws impairing the obligation of
contracts" were "contrary to the first principles of the social
compact, and to every principle of sound legislation," in part
because such measures invited the "influential" to "speculat[e] on
public measures," to the detriment of the "more industrious and
less informed part of the community." The Federalist No. 44, p. 301
(J. Cooke ed. 1961). See Hochman, The Supreme Court and the
Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. 692,
693 (1960) (a retroactive statute "may be passed with an exact
knowledge of who will benefit from it").
21 In some cases, however, the interest in avoiding the
adjudication of constitutional questions will counsel against a
retroactive application. For if a challenged statute is to be given
retroactive effect, the regulatory interest that supports
prospective application will not necessarily also sustain its
application to past events. See Pension Benefit Guaranty
Corporation v. R. A. Gray & Co.,
467 U. S. 717, 730
(1984); Usery v. Turner
268
tirely benign and legitimate purposes, whether to respond to
emergencies, to correct mistakes, to prevent circumvention of a new
statute in the interval immediately preceding its passage, or
simply to give comprehensive effect to a new law Congress considers
salutary. However, a requirement that Congress first make its
intention clear helps ensure that Congress itself has determined
that the benefits of retroactivity outweigh the potential for
disruption or unfairness.
While statutory retroactivity has long been disfavored, deciding
when a statute operates "retroactively" is not always a simple or
mechanical task. Sitting on Circuit, Justice Story offered an
influential definition in Society for Propagation of the Gospel v.
Wheeler, 22 F. Cas. 756 (No. 13,156) (CC NH 1814), a case
construing a provision of the New Hampshire Constitution that
broadly prohibits "retrospective" laws both criminal and civiI.22
Justice Story first rejected the notion that the provision bars
only explicitly retroactive legislation, i. e., "statutes ...
enacted to take effect from a time anterior to their passage." Id.,
at 767. Such a construction, he concluded, would be "utterly
subversive of all the objects" of the prohibition. Ibid. Instead,
the ban on retrospective legislation embraced "all statutes, which,
though operating only from their passage, affect vested
Elkhorn Mining Co., 428 U. S. 1, 17 (1976). In
this case the punitive damages provision may raise a question, but
for present purposes we assume that Congress has ample power to
provide for retroactive application of § 102.
22 Article 23 of the New Hampshire Bill of Rights provides:
"Retrospective laws are highly injurious, oppressive and unjust. No
such laws, therefore, should be made, either for the decision of
civil causes or the punishment of offenses." At issue in the
Society case was a new statute that reversed a common-law rule by
allowing certain wrongful possessors of land, upon being ejected by
the rightful owner, to obtain compensation for improvements made on
the land. Justice Story held that the new statute impaired the
owner's rights and thus could not, consistently with Article 23, be
applied to require compensation for improvements made before the
statute's enactment. See 22 F. Cas., at 766-769.
269
rights and past transactions." Ibid. "Upon principle," Justice
Story elaborated,
"every statute, which takes away or impairs vested rights
acquired under existing laws, or creates a new obligation, imposes
a new duty, or attaches a new disability, in respect to
transactions or considerations already past, must be deemed
retrospective .... " Ibid. (citing Calder v. Bull, 3 Dall. 386
(1798), and Dash v. Van Kleeck, 7 Johns. *477 (N. Y. 1811)).
Though the formulas have varied, similar functional conceptions
of legislative "retroactivity" have found voice in this Court's
decisions and elsewhere.23
A statute does not operate "retrospectively" merely because it
is applied in a case arising from conduct antedating the statute's
enactment, see Republic Nat. Bank of Miami v. United States,
506 U. S. 80, 100
(1992) (THOMAS, J., concurring in part and concurring in judgment),
or upsets expectations based in prior law.24 Rather, the court must
ask
23 See, e. g., Miller v. Florida,
482 U. S. 423, 430 (1987)
("A law is retrospective if it 'changes the legal consequences of
acts completed before its effective date''') (quoting Weaver v.
Graham,
450 U. S.
24, 31 (1981)); Union Pacific R. Co. v. Laramie Stock Yards
Co.,
231 U. S.
190, 199 (1913) (retroactive statute gives "a quality or effect
to acts or conduct which they did not have or did not contemplate
when they were performed"); Sturges v. Carter,
114 U. S. 511, 519 (1885)
(a retroactive statute is one that "takes away or impairs vested
rights acquired under existing laws, or creates a new obligation,
imposes a new duty, or attaches a new disability"). See also
Black's Law Dictionary 1184 (5th ed. 1979) (quoting Justice Story's
definition from Society); 2 N. Singer, Sutherland on Statutory
Construction § 41.01, p. 337 (5th rev. ed. 1993) ("The terms
'retroactive' and 'retrospective' are synonymous in judicial usage
.... They describe acts which operate on transactions which have
occurred or rights and obligations which existed before passage of
the act").
24 Even uncontroversially prospective statutes may unsettle
expectations and impose burdens on past conduct: a new property tax
or zoning regulation may upset the reasonable expectations that
prompted those affected to acquire property; a new law banning
gambling harms the person who had begun to construct a casino
before the law's enactment or
270
whether the new provision attaches new legal consequences to
events completed before its enactment. The conclusion that a
particular rule operates "retroactively" comes at the end of a
process of judgment concerning the nature and extent of the change
in the law and the degree of connection between the operation of
the new rule and a relevant past event. Any test of retroactivity
will leave room for disagreement in hard cases, and is unlikely to
classify the enormous variety of legal changes with perfect
philosophical clarity. However, retroactivity is a matter on which
judges tend to have "sound ... instinct[s]," see Danforth v. Groton
Water
Co., 178 Mass. 472, 476, 59 N. E. 1033, 1034 (1901)
(Holmes, J.), and familiar considerations of fair notice,
reasonable reliance, and settled expectations offer sound
guidance.
Since the early days of this Court, we have declined to give
retroactive effect to statutes burdening private rights unless
Congress had made clear its intent. Thus, in United States v. Heth,
3 Cranch 399 (1806), we refused to apply a federal statute reducing
the commissions of customs collectors to collections commenced
before the statute's enactment because the statute lacked "clear,
strong, and imperative" language requiring retroactive application,
id., at 413 (opinion of Paterson, J.). The presumption
against statutory retroactivity has consistently been explained by
reference to the unfairness of imposing new burdens on persons
after the fact. Indeed, at common law a contrary rule applied to
statutes that merely removed a burden on private rights by
repealing a penal provision (whether criminal or civil); such
spent his life learning to count cards. See Fuller 60 ("If every
time a man relied on existing law in arranging his affairs, he were
made secure against any change in legal rules, the whole body of
our law would be ossified forever"). Moreover, a statute "is not
made retroactive merely because it draws upon antecedent facts for
its operation." Cox v. Hart,
260 U. S. 427, 435
(1922). See Reynolds v. United States,
292 U. S. 443, 444-449
(1934); Chicago & Alton R. Co. v. Tranbarger,
238 U. S. 67, 73
(1915).
271
repeals were understood to preclude punishment for acts
antedating the repeal. See, e. g., United States v. Chambers,
291 U. S. 217,
223-224 (1934); Gulf, C. & S. F. R. Co. v. Dennis,
224 U. S. 503, 506
(1912); United States v. Tynen, 11 Wall. 88, 93-95 (1871); Norris
v. Crocker, 13 How. 429, 440-441 (1852); Maryland ex rel.
Washington Cty. v. Baltimore
& Ohio R. Co., 3 How. 534,
552 (1845); Yeaton v. United States, 5 Cranch 281, 284 (1809). But
see 1 U. S. C. § 109 (repealing common-law rule).
The largest category of cases in which we have applied the
presumption against statutory retroactivity has involved new
provisions affecting contractual or property rights, matters in
which predictability and stability are of prime importance.25 The
presumption has not, however, been limited to such cases. At issue
in Chew Heong v. United States,
112 U. S. 536 (1884), for
example, was a provision of the "Chinese Restriction Act" of 1882
barring Chinese laborers from reentering the United States without
a certificate prepared when they exited this country. We held that
the statute did not bar the reentry of a laborer who had left the
United States before the certification requirement was promulgated.
Justice Harlan's opinion for the Court observed that the law in
effect before the 1882 enactment had accorded laborers a right to
reenter without a certificate, and invoked the "uniformly" accepted
rule against "giv[ing] to statutes a retro-
25 See, e. g., United States v. Security Industrial Bank,
459 U. S. 70,
79-82 (1982); Claridge Apartments Co. v. Commissioner,
323 U. S. 141, 164
(1944); United States v. St. Louis, S. F. & T. R. Co.,
270 U. S. 1, 3 (1926); Holt
v. Henley,
232 U. S.
637, 639 (1914); Union Pacific R. Co. v. Laramie Stock Yards
Co., 231 U. S., at 199; Twenty per Cent. Cases, 20 Wall. 179, 187
(1874); Sohn v. Waterson, 17 Wall. 596,599 (1873); Carroll v.
Lessee of Carroll, 16 How. 275 (1854). While the great majority of
our decisions relying upon the antiretroactivity presumption have
involved intervening statutes burdening private parties, we have
applied the presumption in cases involving new monetary obligations
that fell only on the government. See United States v. Magnolia
Petroleum Co.,
276 U.
S. 160 (1928); White v. United States,
191 U. S. 545 (1903).
272
spective operation, whereby rights previously vested are
injuriously affected, unless compelled to do so by language so
clear and positive as to leave no room to doubt that such was the
intention of the legislature." Id., at 559.
Our statement in Bowen that "congressional enactments and
administrative rules will not be construed to have retroactive
effect unless their language requires this result," 488 U. S., at
208, was in step with this long line of cases.26 Bowen itself was a
paradigmatic case of retroactivity in which a federal agency sought
to recoup, under cost limit regulations issued in 1984, funds that
had been paid to hospitals for services rendered earlier, see
id., at 207; our search for clear congressional intent
authorizing retroactivity was consistent with the approach taken in
decisions spanning two centuries.
The presumption against statutory retroactivity had special
force in the era in which courts tended to view legislative
interference with property and contract rights circumspectly. In
this century, legislation has come to supply the dominant means of
legal ordering, and circumspection has given way to greater
deference to legislative judgments. See Usery v. Turner Elkhorn
Mining Co., 428 U. S., at 15-16; Home Building & Loan Assn. v.
Blaisdell,
290 U. S.
398, 436-444 (1934). But while the constitutional impediments
to retroactive civil legislation are now modest, prospectivity
remains the appropriate default rule. Because it accords with
widely held intuitions about how statutes ordinarily operate, a
presumption against retroactivity will generally coincide with
legislative and public expectations. Requiring clear intent assures
that Congress itself has affirmatively considered the potential
unfairness of retroactive application and determined that it is an
acceptable price
26 See also, e. g., Greene v. United States,
376 U. S. 149, 160
(1964); White v. United States,
191 U. S. 545 (1903);
United States v. Moore,
95 U. S. 760, 762 (1878);
Murray v. Gibson, 15 How. 421, 423 (1854); Ladiga v. Roland, 2 How.
581, 589 (1844).
273
to pay for the countervailing benefits. Such a requirement
allocates to Congress responsibility for fundamental policy
judgments concerning the proper temporal reach of statutes, and has
the additional virtue of giving legislators a predictable
background rule against which to legislate.
B
Although we have long embraced a presumption against statutory
retroactivity, for just as long we have recognized that, in many
situations, a court should "apply the law in effect at the time it
renders its decision," Bradley, 416 U. S., at 711, even though that
law was enacted after the events that gave rise to the suit. There
is, of course, no conflict between that principle and a presumption
against retroactivity when the statute in question is unambiguous.
Chief Justice Marshall's opinion in United States v. Schooner
Peggy, 1 Cranch 103 (1801), illustrates this point. Because a
treaty signed on September 30, 1800, while the case was pending on
appeal, unambiguously provided for the restoration of captured
property "not yet definitively condemned,"
id., at 107
(emphasis in original), we reversed a decree entered on September
23, 1800, condemning a French vessel that had been seized in
American waters. Our application of "the law in effect" at the time
of our decision in Schooner Peggy was simply a response to the
language of the statute. Id., at 109.
Even absent specific legislative authorization, application of
new statutes passed after the events in suit is unquestionably
proper in many situations. When the intervening statute authorizes
or affects the propriety of prospective relief, application of the
new provision is not retroactive. Thus, in American Steel Foundries
v. Tri-City Central Trades Council,
257 U. S. 184 (1921), we
held that § 20 of the Clayton Act, enacted while the case was
pending on appeal, governed the propriety of injunctive relief
against labor picketing. In remanding the suit for application of
the intervening statute,
274
we observed that "relief by injunction operates in futuro," and
that the plaintiff had no "vested right" in the decree entered by
the trial court. 257 U. S., at 201. See also, e.
g., Hall v.
Beals,
396 U. S.
45, 48 (1969); Duplex Printing Press Co. v. Deering,
254 U. S. 443, 464
(1921).
We have regularly applied intervening statutes conferring or
ousting jurisdiction, whether or not jurisdiction lay when the
underlying conduct occurred or when the suit was filed. Thus, in
Bruner v. United States,
343 U. S. 112, 116-117
(1952), relying on our "consisten[t]" practice, we ordered an
action dismissed because the jurisdictional statute under which it
had been (properly) filed was subsequently repealed.27 See also
Hallowell v. Commons,
239 U. S. 506, 508-509
(1916); Assessors v. Osbornes, 9 Wall. 567, 575 (1870). Conversely,
in Andrus v. Charlestone Stone Products Co.,
436 U. S. 604, 607-608,
n. 6 (1978), we held that, because a statute passed while the case
was pending on appeal had eliminated the amount-in-controversy
requirement for federal-question cases, the fact that respondent
had failed to allege $10,000 in controversy at the commencement of
the action was "now of no moment." See also United States v.
Alabama,
362 U. S.
602, 604 (1960) (per curiam); Stephens v. Cherokee Nation,
174 U. S. 445,
478 (1899). Application of a new jurisdictional rule usually "takes
away no substantive right but simply changes the tribunal that is
to hear the case." Hallowell, 239 U. S., at 508. Present law
normally governs in such situations because jurisdictional statutes
"speak to the power of the court rather than to the rights or
obligations of the parties," Republic Nat. Bank of Miami, 506 U.
S., at 100 (THOMAS, J., concurring).
27 In Bruner, we specifically noted:
"This jurisdictional rule does not affect the general principle
that a statute is not to be given retroactive effect unless such
construction is required by explicit language or by necessary
implication. Compare United States v. St. Louis, S. F. & T. R.
Co.,
270 U. S. 1, 3
(1926), with Smallwood v. Gallardo,
275 U. S. 56, 61 (1927)."
343 U. S., at 117, n. 8.
275
Changes in procedural rules may often be applied in suits
arising before their enactment without raising concerns about
retroactivity. For example, in Ex parte Collett,
337 U. S. 55, 71 (1949),
we held that 28 U. S. C. § 1404(a) governed the transfer of an
action instituted prior to that statute's enactment. We noted the
diminished reliance interests in matters of procedure. 337 U. S.,
at 71.28 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. Cf. McBurney v. Carson,
99 U. S. 567, 569
(1879).29
28While we have strictly construed the Ex Post Facto Clause to
prohibit application of new statutes creating or increasing
punishments after the fact, we have upheld intervening procedural
changes even if application of the new rule operated to a
defendant's disadvantage in the particular case. See, e. g.,
Dobbert v. Florida,
432 U. S. 282, 293-294
(1977); see also Collins v. Youngblood,
497 U. S. 37 (1990);
Beazell v. Ohio,
269
U. S. 167 (1925).
29 Of course, the mere fact that a new rule is procedural does
not mean that it applies to every pending case. A new rule
concerning the filing of complaints would not govern an action in
which the complaint had already been properly filed under the old
regime, and the promulgation of a new rule of evidence would not
require an appellate remand for a new trial. Our orders approving
amendments to federal procedural rules reflect the commonsense
notion that the applicability of such provisions ordinarily depends
on the posture of the particular case. See, e.
g., Order
Amending Federal Rules of Criminal Procedure, 495 U. S. 969 (1990)
(amendments applicable to pending cases "insofar as just and
practicable"); Order Amending Federal Rules of Civil Procedure, 456
U. S. 1015 (1982) (same); Order Amending Bankruptcy Rules and
Forms, 421 U. S. 1021 (1975) (amendments applicable to pending
cases "except to the extent that in the opinion of the court their
application in a particular proceeding then pending would not be
feasible or would work injustice"). Contrary to JUSTICE SCALIA'S
suggestion, post, at 290, we do not restrict the presumption
against statutory retroactivity to cases involving "vested rights."
(Neither is Justice Story's definition of retroactivity, quoted
supra, at 269, so restricted.) Nor do we suggest that concerns
about retroactivity have no application to procedural rules.
276
Petitioner relies principally upon Bradley v. School Bd. of
Richmond,
416 U. S.
696 (1974), and Thorpe v. Housing Authority of Durham,
393 U. S. 268 (1969), in
support of her argument that our ordinary interpretive rules
support application of § 102 to her case. In Thorpe, we held that
an agency circular requiring a local housing authority to give
notice of reasons and opportunity to respond before evicting a
tenant was applicable to an eviction proceeding commenced before
the regulation issued. Thorpe shares much with both the
"procedural" and "prospective-relief" cases. See supra, at 273-275.
Thus, we noted in Thorpe that new hearing procedures did not affect
either party's obligations under the lease agreement between the
housing authority and the petitioner, 393 U. S., at 279, and,
because the tenant had "not yet vacated," we saw no significance in
the fact that the housing authority had "decided to evict her
before the circular was issued," id., at 283. The Court in Thorpe
viewed the new eviction procedures as "essential to remove a
serious impediment to the successful protection of constitutional
rights." Ibid.30 Cf. Youakim v. Miller,
425 U. S. 231, 237 (1976)
(per curiam) (citing Thorpe for propriety of applying new law to
avoiding necessity of deciding constitutionality of old one).
Our holding in Bradley is similarly compatible with the line of
decisions disfavoring "retroactive" application of statutes. In
Bradley, the District Court had awarded attorney's fees and costs,
upon general equitable principles, to parents who had prevailed in
an action seeking to desegregate the public schools of Richmond,
Virginia. While the
30 Thorpe is consistent with the principle, analogous to that at
work in the common-law presumption about repeals of criminal
statutes, that the government should accord grace to private
parties disadvantaged by an old rule when it adopts a new and more
generous one. Cf. DeGurules v. INS,
833 F.2d
861, 862-863 (CA9 1987). Indeed, Thorpe twice cited United
States v. Chambers,
291 U. S. 217 (1934),
which ordered dismissal of prosecutions pending when the National
Prohibition Act was repealed. See Thorpe, 393 U. S., at 281, n. 38;
id., at 282, n. 40.
277
case was pending before the Court of Appeals, Congress enacted §
718 of the Education Amendments of 1972, which authorized federal
courts to award the prevailing parties in school desegregation
cases a reasonable attorney's fee. The Court of Appeals held that
the new fee provision did not authorize the award of fees for
services rendered before the effective date of the amendments. This
Court reversed. We concluded that the private parties could rely on
§ 718 to support their claim for attorney's fees, resting our
decision "on the principle that a court is to apply the law in
effect at the time it renders its decision, unless doing so would
result in manifest injustice or there is statutory direction or
legislative history to the contrary." 416 U. S., at 711.
Although that language suggests a categorical presumption in
favor of application of all new rules of law, we now make it clear
that Bradley did not alter the well-settled presumption against
application of the class of new statutes that would have genuinely
"retroactive" effect. Like the new hearing requirement in Thorpe,
the attorney's fee provision at issue in Bradley did not resemble
the cases in which we have invoked the presumption against
statutory retroactivity. Attorney's fee determinations, we have
observed, are "collateral to the main cause of action" and
"uniquely separable from the cause of action to be proved at
trial." White v. New Hampshire Dept. of Employment Security,
455 U. S.
445,451-452 (1982). See also Hutto v. Finney,
437 U. S. 678, 695, n. 24
(1978). Moreover, even before the enactment of § 718, federal
courts had authority (which the District Court in Bradley had
exercised) to award fees based upon equitable principles. As our
opinion in Bradley made clear, it would be difficult to imagine a
stronger equitable case for an attorney's fee award than a lawsuit
in which the plaintiff parents would otherwise have to bear the
costs of desegregating their children's public schools. See 416 U.
S., at 718 (noting that the plaintiffs had brought the school board
"into compliance with its constitutional mandate") (citing Brown v.
Board
278
of Education,
347
U. S. 483, 494 (1954)). In light of the prior availability of a
fee award, and the likelihood that fees would be assessed under
pre-existing theories, we concluded that the new fee statute simply
"d[id] not impose an additional or unforeseeable obligation" upon
the school board. Bradley, 416 U. S., at 721.
In approving application of the new fee provision, Bradley did
not take issue with the long line of decisions applying the
presumption against retroactivity. Our opinion distinguished, but
did not criticize, prior cases that had applied the
antiretroactivity canon. See id., at 720 (citing Greene v. United
States,
376 U. S.
149, 160 (1964); Claridge Apartments Co. v. Commissioner,
323 U. S. 141,
164 (1944), and Union Pacific R. Co. v. Laramie Stock Yards Co.,
231 U. S. 190,
199 (1913)). The authorities we relied upon in Bradley lend further
support to the conclusion that we did not intend to displace the
traditional presumption against applying statutes affecting
substantive rights, liabilities, or duties to conduct arising
before their enactment. See Kaiser, 494 U. S., at 849-850 (SCALIA,
J., concurring). Bradley relied on Thorpe and on other precedents
that are consistent with a presumption against statutory
retroactivity, including decisions involving explicitly retroactive
statutes, see 416 U. S., at 713, n. 17 (citing, inter alia,
Freeborn v. Smith, 2 Wall. 160 (1865)),31 the retroactive
application of intervening judicial decisions, see 416 U. S., at
713-714, n. 17 (citing, inter alia, Patterson v. Alabama,
294 U. S. 600, 607
(1935)),32 statutes
31 In Bradley, we cited Schooner Peggy for the "current law"
principle, but we recognized that the law at issue in Schooner
Peggy had expressly called for retroactive application. See 416 U.
S., at 712, n. 16 (describing Schooner Peggy as holding that Court
was obligated to "apply the terms of the convention," which had
recited that it applied to all vessels not yet "definitively
condemned") (emphasis in convention).
32 At the time Bradley was decided, it was by no means a truism
to point out that rules announced in intervening judicial decisions
should normally be applied to a case pending when the intervening
decision came down. In 1974, our doctrine on judicial retroactivity
involved a substantial measure of discretion, guided by equitable
standards resembling the Bradley
279
altering jurisdiction, 416 U. S., at 713, n. 17 (citing, inter
alia, United States v. Alabama,
362 U. S. 602 (1960)),
and repeal of a criminal statute, 416 U. S., at 713, n. 17 (citing
United States v. Chambers,
291 U. S. 217 (1934)).
Moreover, in none of our decisions that have relied upon Bradley or
Thorpe have we cast doubt on the traditional presumption against
truly "retrospective" application of a statute.33
"manifest injustice" test itself. See Chevron Oil Co. v. Huson,
404 U. S. 97,
106-107 (1971); Linkletter v. Walker,
381 U. S. 618, 636
(1965). While it was accurate in 1974 to say that a new rule
announced in a judicial decision was only presumptively applicable
to pending cases, we have since established a firm rule of
retroactivity. See Harper v. Virginia Dept. of Taxation,
509 U. S. 86 (1993);
Griffith v. Kentucky,
479 U. S. 314 (1987).
33 See, e. g., Treasury Employees v. Von Raab,
489 U. S. 656, 661-662,
and n. 1 (1989) (considering intervening regulations in injunctive
action challenging agency's drug testing policy under Fourth
Amendment) (citing Thorpe); Goodman v. Lukens Steel Co.,
482 U. S. 656,662 (1987)
(applying rule announced in judicial decision to case arising
before the decision and citing Bradley for the "usual rule ... that
federal cases should be decided in accordance with the law existing
at the time of the decision"); Saint Francis College v.
Al-Khazraji,
481 U.
S. 604, 608 (1987) (in case involving retroactivity of judicial
decision, citing Thorpe for same "usual rule"); Hutto v. Finney,
437 U. S., at 694, n. 23 (relying on "general practice" and Bradley
to uphold award of attorney's fees under statute passed after the
services had been rendered but while case was still pending);
Youakim, 425 U. S., at 237 (per curiam) (remanding for
reconsideration of constitutional claim for injunctive relief in
light of intervening state regulations) (citing Thorpe); Cort v.
Ash,
422 U. S. 66,
77 (1975) (stating that Bradley warranted application of
intervening statute transferring to administrative agency
jurisdiction over claim for injunctive relief); Hamling v. United
States,
418 U. S.
87, 101-102 (1974) (reviewing obscenity conviction in light of
subsequent First Amendment decision of this Court) (citing
Bradley); California Bankers Assn. v. Shultz,
416 U. S. 21, 49, n. 21
(1974) (in action for injunction against enforcement of banking
disclosure statute, citing Thorpe for proposition that Court should
consider constitutional question in light of regulations issued
after commencement of suit); Diffenderfer v. Central Baptist Church
of Miami, Inc.,
404
U. S. 412, 414 (1972) (citing Thorpe in holding that
intervening repeal of a state tax exemption for certain church
property rendered "inappropriate" petitioner's request for
injunctive relief based on the Establishment Clause); Citizens to
Preserve Overton Park, Inc. v. Volpe,
401 U. S. 402, 419 (1971)
(refusing
280
When a case implicates a federal statute enacted after the
events in suit, the court's first task is to determine whether
Congress has expressly prescribed the statute's proper reach. If
Congress has done so, of course, there is no need to resort to
judicial default rules. When, however, the statute contains no such
express command, the court must determine whether the new statute
would have retroactive effect, i. e., whether it would 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. If the statute would operate
retroactively, our traditional presumption teaches that it does not
govern absent clear congressional intent favoring such a
result.
v
We now ask whether, given the absence of guiding instructions
from Congress, § 102 of the Civil Rights Act of 1991 is the type of
provision that should govern cases arising before its enactment. As
we observed supra, at 260-261, and n. 12, there is no special
reason to think that all the diverse provisions of the Act must be
treated uniformly for such purposes. To the contrary, we understand
the instruction that the provisions are to "take effect upon
enactment" to mean that courts should evaluate each provision of
the Act in light of ordinary judicial principles concerning the
application of new rules to pending cases and preenactment
conduct.
Two provisions of § 102 may be readily classified according to
these principles. The jury trial right set out in § 102(c)(1) is
plainly a procedural change of the sort that would ordinarily
govern in trials conducted after its effective date. If § 102 did
no more than introduce a right to jury trial in Title
to remand to agency under Thorpe for administrative findings
required by new regulation because administrative record was
already adequate for judicial review); Hall v. Beals,
396 U. S. 45, 48 (1969)
(in action for injunctive relief from state election statute,
citing Thorpe as authority for considering intervening amendment of
statute).
281
VII cases, the provision would presumably apply to cases tried
after November 21, 1991, regardless of when the underlying conduct
occurred.34 However, because § 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.
Section 102(b)(1) is clearly on the other side of the line.
That subsection authorizes punitive damages if the plaintiff
shows that the defendant "engaged in a discriminatory practice or
discriminatory practices with malice or with reckless indifference
to the federally protected rights of an aggrieved individual." The
very labels given "punitive" or "exemplary" damages, as well as the
rationales that support them, demonstrate that they share key
characteristics of criminal sanctions. Retroactive imposition of
punitive damages would raise a serious constitutional question. See
Turner Elkhorn, 428 U. S., at 17 (Court would "hesitate to approve
the retrospective imposition of liability on any theory of
deterrence ... or blameworthiness"); De Veau v. Braisted,
363 U. S. 144, 160 (1960)
("The mark of an ex post facto law is the imposition of what can
fairly be designated punishment for past acts"). See also Louis
Vuitton S. A. v. Spencer Handbags Corp.,
765
F.2d 966, 972 (CA2 1985) (retroactive application of punitive
treble damages provisions of Trademark Counterfeiting Act of 1984
"would present a potential ex post facto problem"). Before we
entertained that question, we would have to be confronted with a
statute that explicitly authorized punitive damages for
preenactment conduct. The Civil Rights Act of 1991 contains no such
explicit command.
The provision of § 102(a)(1) authorizing the recovery of
compensatory damages is not easily classified. It does not
34 As the Court of Appeals recognized, however, the promulgation
of a new jury trial rule would ordinarily not warrant retrial of
cases that had previously been tried to a judge. See n. 29,
supra. Thus, customary practice would not support remand for
a jury trial in this case.
282
make unlawful conduct that was lawful when it occurred; as we
have noted, supra, at 252-255, § 102 only reaches discriminatory
conduct already prohibited by Title VII. Concerns about a lack of
fair notice are further muted by the fact that such discrimination
was in many cases (although not this one) already subject to
monetary liability in the form of backpay. Nor could anyone
seriously contend that the compensatory damages provisions smack of
a "retributive" or other suspect legislative purpose. Section 102
reflects Congress' desire to afford victims of discrimination more
complete redress for violations of rules established more than a
generation ago in the Civil Rights Act of 1964. At least with
respect to its compensatory damages provisions, then, § 102 is not
in a category in which objections to retroactive application on
grounds of fairness have their greatest force.
Nonetheless, the new compensatory damages provision would
operate "retrospectively" if it were applied to conduct occurring
before November 21, 1991. Unlike certain other forms of relief,
compensatory damages are quintessentially backward looking.
Compensatory damages may be intended less to sanction wrongdoers
than to make victims whole, but they do so by a mechanism that
affects the liabilities of defendants. They do not "compensate" by
distributing funds from the public coffers, but by requiring
particular employers to pay for harms they caused. The introduction
of a right to compensatory damages is also the type of legal change
that would have an impact on private parties' planning.35 In this
case, the event to which the new damages
35 As petitioner and amici suggest, concerns of unfair surprise
and upsetting expectations are attenuated in the case of
intentional employment discrimination, which has been unlawful for
more than a generation. However, fairness concerns would not be
entirely absent if the damages provisions of § 102 were to apply to
events preceding its enactment, as the facts of this case
illustrate. Respondent USI's management, when apprised of the
wrongful conduct of petitioner's co-worker, took timely action to
remedy the problem. The law then in effect imposed no liability on
an employer who corrected discriminatory work conditions before the
conditions
283
provision relates is the discriminatory conduct of respondents'
agent John Williams; if applied here, that provision would attach
an important new legal burden to that conduct. The new damages
remedy in § 102, we conclude, is the kind of provision that does
not apply to events antedating its enactment in the absence of
clear congressional intent.
In cases like this one, in which prior law afforded no relief, §
102 can be seen as creating a new cause of action, and its impact
on parties' rights is especially pronounced. Section 102 confers a
new right to monetary relief on persons like petitioner who were
victims of a hostile work environment but were not constructively
discharged, and the novel prospect of damages liability for their
employers. Because Title VII previously authorized recovery of
backpay in some cases, and because compensatory damages under §
102(a) are in addition to any backpay recoverable, the new
provision also resembles a statute increasing the amount of damages
available under a preestablished cause of action. Even under that
view, however, the provision would, if applied in cases arising
before the Act's effective date, undoubtedly impose on employers
found liable a "new disability" in respect to past events. See
Society for Propagation of the Gospel, 22 F. Cas., at 767. The
extent of a party's liability, in the civil context as well as the
criminal, is an important legal
became so severe as to result in the victim's constructive
discharge. Assessing damages against respondents on a theory of
respondeat superior would thus entail an element of surprise. Even
when the conduct in question is morally reprehensible or illegal, a
degree of unfairness is inherent whenever the law imposes
additional burdens based on conduct that occurred in the past. Cf.
Weaver, 450 U. S., at 28-30 (Ex Post Facto Clause assures fair
notice and governmental restraint, and does not turn on "an
individual's right to less punishment"). The new damages provisions
of § 102 can be expected to give managers an added incentive to
take preventive measures to ward off discriminatory conduct by
subordinates before it occurs, but that purpose is not served by
applying the regime to preenactment conduct.
284
consequence that cannot be ignored.36 Neither in Bradley itself,
nor in any case before or since in which Congress had not clearly
spoken, have we read a statute substantially increasing the
monetary liability of a private party to apply to conduct occurring
before the statute's enactment. See Winfree v. Northern Pacific R.
Co.,
227 U. S.
296, 301 (1913) (statute creating new federal cause of action
for wrongful death inapplicable to case arising before enactment in
absence of "explicit words" or "clear implication"); United States
Fidelity & Guaranty Co. v. United States ex rel. Struthers
Wells
36 The state courts have consistently held that statutes
changing or abolishing limits on the amount of damages available in
wrongful-death actions should not, in the absence of clear
legislative intent, apply to actions arising before their
enactment. See, e. g., Dempsey v. State, 451 A. 2d 273 (R. 1. 1982)
("Every court which has considered the issue ... has found that a
subsequent change as to the amount or the elements of damage in the
wrongful-death statute to be substantive rather than procedural or
remedial, and thus any such change must be applied prospectively");
Kleibrink v. Missouri-Kansas-Texas R. Co., 224 Kan. 437, 444, 581
P. 2d 372, 378 (1978) (holding, in accord with the "great weight of
authority," that "an increase, decrease or repeal of the statutory
maximum recoverable in wrongful death actions is not retroactive"
and thus should not apply in a case arising before the statute's
enactment) (emphasis in original); Bradley v. Knutson, 62 Wis. 2d
432, 436, 215 N. W. 2d 369, 371 (1974) (refusing to apply increase
in cap on damages for wrongful death to misconduct occurring before
effective date; "statutory increases in damage[s] limitations are
actually changes in substantive rights and not mere remedial
changes"); State ex rel. St. Louis-San Francisco R. Co. v. Buder,
515 S. W. 2d 409, 411 (Mo. 1974) (statute removing wrongful-death
liability limitation construed not to apply to preenactment
conduct; "an act or transaction, to which certain legal effects
were ascribed at the time they transpired, should not, without
cogent reasons, thereafter be subject to a different set of effects
which alter the rights and liabilities of the parties thereto");
Mihoy v. Proulx, 113 N. H. 698, 701, 313 A. 2d 723, 725 (1973) ("To
apply the increased limit after the date of the accident would
clearly enlarge the defendant's liability retrospectively. In the
absence of an express provision, we cannot conclude that the
legislature intended retrospective application"). See also Fann v.
McGuffy, 534 S. W. 2d 770, 774, n. 19 (Ky. 1975); Muckler v. Buehl,
150 N. W. 2d 689, 697 (Minn. 1967).
285
Co.,
209 U. S.
306, 314-315 (1908) (construing statute restricting
subcontractors' rights to recover damages from prime contractors as
prospective in absence of "clear, strong and imperative" language
from Congress favoring retroactivity).37
It will frequently be true, as petitioner and amici forcefully
argue here, that retroactive application of a new statute would
vindicate its purpose more fully.38 That consider-
37We have sometimes said that new "remedial" statutes, like new
"procedural" ones, should presumptively apply to pending cases.
See, e.
g., Ex parte Collett, 337 U. S., at 71, and n. 38
("Clearly, § 1404(a) is a remedial provision applicable to pending
actions"); Beazell, 269 U. S., at 171 (Ex Post Facto Clause does
not limit "legislative control of remedies and modes of procedure
which do not affect matters of substance"). While that statement
holds true for some kinds of remedies, see supra, at 273274
(discussing prospective relief), we have not classified a statute
introducing damages liability as the sort of "remedial" change that
should presumptively apply in pending cases. "Retroactive
modification" of damages remedies may "normally harbo[r] much less
potential for mischief than retroactive changes in the principles
of liability," Hastings v. Earth Satellite Corp.,
628 F.2d
85, 93 (CADC), cert. denied,
449 U. S. 905 (1980), but
that potential is nevertheless still significant.
38Petitioner argues that our decision in Franklin v. Gwinnett
County Public Schools,
503 U. S. 60 (1992),
supports application of § 102 to her case. Relying on the principle
that "where legal rights have been invaded, and a federal statute
provides for a general right to sue for such invasion, federal
courts may use any available remedy to make good the wrong,'" id.,
at 66 (quoting Bell v. Hood,
327 U. S. 678, 684
(1946)), we held in Franklin that the right of action under Title
IX of the Education Amendments of 1972 included a claim for
damages. Petitioner argues that Franklin supports her position
because, if she cannot obtain damages pursuant to § 102, she will
be left remediless despite an adjudged violation of her right under
Title VII to be free of workplace discrimination. However, Title
VII of the Civil Rights Act of 1964 is not a statute to which we
would apply the "traditional presumption in favor of all available
remedies." 503 U. S., at 72. That statute did not create a "general
right to sue" for employment discrimination, but instead specified
a set of "circumscribed remedies." See United States v. Burke,
504 U. S. 229,
240 (1992). Until the 1991 amendment, the Title VII scheme did not
allow for dam-
286
SCALIA, J., concurring in judgments
ation, however, is not sufficient to rebut the presumption
against retroactivity. Statutes are seldom crafted to pursue a
single goal, and compromises necessary to their enactment may
require adopting means other than those that would most effectively
pursue the main goal. A legislator who supported a prospective
statute might reasonably oppose retroactive application of the same
statute. Indeed, there is reason to believe that the omission of
the 1990 version's express retroactivity provisions was a factor in
the passage of the 1991 bill. Section 102 is plainly not the sort
of provision that must be understood to operate retroactively
because a contrary reading would render it ineffective.
The presumption against statutory retroactivity is founded upon
sound considerations of general policy and practice, and accords
with long held and widely shared expectations about the usual
operation of legislation. We are satisfied that it applies to §
102. Because we have found no clear evidence of congressional
intent that § 102 of the Civil Rights Act of 1991 should apply to
cases arising before its enactment, we conclude that the judgment
of the Court of Appeals must be affirmed.
It is so ordered.
JUSTICE SCALIA, with whom JUSTICE KENNEDY and JUSTICE THOMAS
join, concurring in the judgments.*
I
I of course agree with the Court that there exists a judicial
presumption, of great antiquity, that a legislative enactment
affecting substantive rights does not apply retroactively absent
clear statement to the contrary. See generally Kaiser
ages. We are not free to fashion remedies that Congress has
specifically chosen not to extend. See Northwest Airlines, Inc. v.
Transport Workers,
451
U. S. 77, 97 (1981).
*[This opinion applies also to Rivers v. Roadway Express, Inc.,
No. 92938, post, p. 298.]
287
Aluminum & Chemical Corp. v. Bonjorno,
494 U. S. 827, 840 (1990)
(SCALIA, J., concurring). The Court, however, is willing to let
that clear statement be supplied, not by the text of the law in
question, but by individual legislators who participated in the
enactment of the law, and even legislators in an earlier Congress
which tried and failed to enact a similar law. For the Court not
only combs the floor debate and Committee Reports of the statute at
issue, the Civil Rights Act of 1991 (1991 Act), Pub. L. 102-166,
105 Stat. 1071, see ante, at 262-263, but also reviews the
procedural history of an earlier, unsuccessful, attempt by a
different Congress to enact similar legislation, the Civil Rights
Act of 1990, S. 2104, 101st Cong., 1st Sess. (1990), see ante, at
255-257, 263.
This effectively converts the "clear statement" rule into a
"discernible legislative intent" rule-and even that understates the
difference. The Court's rejection of the floor statements of
certain Senators because they are "frankly partisan" and "cannot
plausibly be read as reflecting any general agreement," ante, at
262, reads like any other exercise in the soft science of
legislative historicizing,l undisciplined by any distinctive "clear
statement" requirement. If it is a "clear statement" we are
seeking, surely it is not enough to insist that the statement can
"plausibly be read as reflecting general agreement"; the statement
must clearly reflect general agreement. No legislative history can
do that, of course, but only the text of the statute itself. That
has been the meaning of the "clear statement" retroactivity rule
from the earliest times. See, e. g., United States v. Heth, 3
Cranch 399, 408 (1806) (Johnson, J.) ("Unless, therefore, the words
are too imperious to admit of a different construction, [the Court
should] restric[t] the words of the law to a future
1 In one respect, I must acknowledge, the Court's effort may be
unique.
There is novelty as well as irony in its supporting the judgment
that the floor statements on the 1991 Act are unreliable by citing
Senator Danforth's floor statement on the 1991 Act to the effect
that floor statements on the 1991 Act are unreliable. See ante, at
262-263, n. 15.
288
SCALIA, J., concurring in judgments
operation");
id., at 414 (Cushing, J.) ("[I]t [is]
unreasonable, in my opinion, to give the law a construction, which
would have such a retrospective effect, unless it contained express
words to that purpose"); Murray v. Gibson, 15 How. 421, 423 (1854)
(statutes do not operate retroactively unless "required by express
command or by necessary and unavoidable implication"); Shwab v.
Doyle,
258 U. S.
529, 537 (1922) ("[A] statute should not be given a
retrospective operation unless its words make that imperative");
see also Bonjorno, supra, at 842-844 (concurring opinion)
(collecting cases applying the clear statement test). I do not deem
that clear rule to be changed by the Court's dicta regarding
legislative history in the present case.
The 1991 Act does not expressly state that it operates
retroactively, but petitioner contends that its specification of
prospective-only application for two sections, §§ 109(c) and
402(b), implies that its other provisions are retroactive. More
precisely, petitioner argues that since § 402(a) states that
"[e]xcept as otherwise specifically provided, [the 1991 Act] shall
take effect upon enactment"; and since §§ 109(c) and 402(b)
specifically provide that those sections shall operate only
prospectively; the term "shall take effect upon enactment" in §
402(a) must mean retroactive effect. The short response to this
refined and subtle argument is that refinement and subtlety are no
substitute for clear statement. "[S]hall take effect upon
enactment" is presumed to mean "shall have prospective effect upon
enactment," and that presumption is too strong to be overcome by
any negative inference derived from §§ 109(c) and 402(b).2
2 Petitioner suggests that in Pennsylvania v. Union Gas Co.,
491 U. S. 1 (1989),
the Court found the negative implication of language sufficient to
satisfy the "clear statement" requirement for congressional
subjection of the States to private suit, see Atascadero State
Hospital v. Scanlon,
473 U. S. 234, 242
(1985). However, in that case it was the express inclusion of
States in the definition of potentially liable "person[s]," see 42
U. S. C. § 9601(21), as reinforced by the limitation of States'
liability in certain limited circumstances, see § 9601(20)(D), that
led the Court to find a plain statement of liability. See 491 U.
S., at 11 (noting the "cascade of plain
289
II
The Court's opinion begins with an evaluation of petitioner's
argument that the text of the statute dictates its retroactive
application. The Court's rejection of that argument cannot be as
forceful as it ought, so long as it insists upon compromising the
clarity of the ancient and constant assumption that legislation is
prospective, by attributing a comparable pedigree to the nouveau
Bradley presumption in favor of applying the law in effect at the
time of decision. See Bradley v. School Bd. of Richmond,
416 U. S. 696, 711-716
(1974). As I have demonstrated elsewhere and need not repeat here,
Bradley and Thorpe v. Housing Authority of Durham,
393 U. S. 268 (1969),
simply misread our precedents and invented an utterly new and
erroneous rule. See generally Bonjorno, supra, at 840 (SCALIA, J.,
concurring).
Besides embellishing the pedigree of the Brad ley- Thorpe
presumption, the Court goes out of its way to reaffirm the holdings
of those cases. I see nothing to be gained by overruling them, but
neither do I think the indefensible should needlessly be defended.
And Thorpe, at least, is really indefensible. The regulation at
issue there required that "before instituting an eviction
proceeding local housing authorities ... should inform the tenant
... of the reasons for the eviction .... " Thorpe, supra, at 272,
and n. 8 (emphasis added). The Court imposed that requirement on an
eviction proceeding instituted 18 months before the regulation
issued. That application was plainly retroactive and was wrong. The
result in Bradley presents a closer question; application of an
attorney's fees provision to ongoing litigation is arguably not
retroactive. If it were retroactive, however, it would surely not
be saved (as the Court suggests) by the existence of another theory
under which attorney's fees might have been discretionarily
awarded, see ante, at 277-278.
language" supporting liability);
id., at 30 (SCALIA, J.,
concurring in part and dissenting in part). There is nothing
comparable here.
290
SCALIA, J., concurring in judgments
III
My last, and most significant, disagreement with the Court's
analysis of this case pertains to the meaning of retroactivity. The
Court adopts as its own the definition crafted by Justice Story in
a case involving a provision of the New Hampshire Constitution that
prohibited "retrospective" laws: a law is retroactive only if it
"takes away or impairs vested rights acquired under existing laws,
or creates a new obligation, imposes a new duty, or attaches a new
disability, in respect to transactions or considerations already
past." Society for Propagation of the Gospel v. Wheeler, 22 F. Cas.
756, 767 (No. 13,156) (CC NH 1814) (Story, J.).
One might expect from this "vested rights" focus that the Court
would hold all changes in rules of procedure (as opposed to matters
of substance) to apply retroactively. And one would draw the same
conclusion from the Court's formulation of the test as being
"whether the new provision attaches new legal consequences to
events completed before its enactment"-a test borrowed directly
from our Ex Post Facto Clause jurisprudence, see, e. g., Miller v.
Florida,
482 U. S.
423, 430 (1987), where we have adopted a substantiveprocedural
line, see id., at 433 ("[N]o ex post facto violation occurs if the
change in the law is merely procedural"). In fact, however, the
Court shrinks from faithfully applying the test that it has
announced. It first seemingly defends the procedural-substantive
distinction that a "vested rights" theory entails, ante, at 275
("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"). But it soon acknowledges a broad
and illdefined (indeed, utterly undefined) exception: "[T]he mere
fact that a new rule is procedural does not mean that it applies to
every pending case." Ante, at 275, n. 29. Under this exception, "a
new rule concerning the filing of complaints would not govern an
action in which the complaint
291
had already been properly filed," ibid., and "the promulgation
of a new jury trial rule would ordinarily not warrant retrial of
cases that had previously been tried to a judge," ante, at 281, n.
34. It is hard to see how either of these refusals to allow
retroactive application preserves any "vested right." "'No one has
a vested right in any given mode of procedure.'" Ex parte Collett,
337 U. S. 55, 71
(1949), quoting Crane v. Hahlo,
258 U. S. 142, 147
(1922).
The seemingly random exceptions to the Court's "vested rights"
(substance-vs.-procedure) criterion must be made, I suggest,
because that criterion is fundamentally wrong. It may well be that
the upsetting of "vested substantive rights" was the proper
touchstone for interpretation of New Hampshire's constitutional
prohibition, as it is for interpretation of the United States
Constitution's Ex Post Facto Clauses, see ante, at 275, n. 28. But
I doubt that it has anything to do with the more mundane question
before us here: absent clear statement to the contrary, what is the
presumed temporal application of a statute? For purposes of that
question, a procedural change should no more be presumed to be
retroactive than a substantive one. The critical issue, I think, is
not whether the rule affects "vested rights," or governs substance
or procedure, but rather what is the relevant activity that the
rule regulates. Absent clear statement otherwise, only such
relevant activity which occurs after the effective date of the
statute is covered. Most statutes are meant to regulate primary
conduct, and hence will not be applied in trials involving conduct
that occurred before their effective date. But other statutes have
a different purpose and therefore a different relevant
retroactivity event. A new rule of evidence governing expert
testimony, for example, is aimed at regulating the conduct of
trial, and the event relevant to retroactivity of the rule is
introduction of the testimony. Even though it is a procedural rule,
it would unquestionably not be applied to testimony already
takenreversing a case on appeal, for example, because the new
292
SCALIA, J., concurring in judgments
rule had not been applied at a trial which antedated the
statute.
The inadequacy of the Court's "vested rights" approach becomes
apparent when a change in one of the incidents of trial alters
substantive entitlements. The opinion classifies attorney's fees
provisions as procedural and permits "retroactive" application (in
the sense of application to cases involving preenactment conduct).
See ante, at 277-278. It seems to me, however, that holding a
person liable for attorney's fees affects a "substantive right" no
less than holding him liable for compensatory or punitive damages,
which the Court treats as affecting a vested right. If attorney's
fees can be awarded in a suit involving conduct that antedated the
fee-authorizing statute, it is because the purpose of the fee award
is not to affect that conduct, but to encourage suit for the
vindication of certain rights-so that the retroactivity event is
the filing of suit, whereafter encouragement is no longer needed.
Or perhaps because the purpose of the fee award is to facilitate
suit-so that the retroactivity event is the termination of suit,
whereafter facilitation can no longer be achieved.
The "vested rights" test does not square with our consistent
practice of giving immediate effect to statutes that alter a
court's jurisdiction. See, e. g., Bruner v. United States,
343 U. S. 112, 116-117,
and n. 8 (1952); Hallowell v. Commons,
239 U. S. 506 (1916); cf.
Ex parte McCardle, 7 Wall. 506, 514 (1869); Insurance Co. v.
Ritchie, 5 Wall. 541, 544-545 (1867); see also King v. Justices of
the Peace of London, 3 Burr. 1456, 97 Eng. Rep. 924 (K. B. 1764).
The Court explains this aspect of our retroactivity jurisprudence
by noting that "a new jurisdictional rule" will often not involve
retroactivity in Justice Story's sense because it "'takes away no
substantive right but simply changes the tribunal that is to hear
the case.'" Ante, at 274, quoting Hallowell, supra, at 508. That
may be true sometimes, but surely not always. A jurisdictional rule
can deny a litigant a forum for his claim
293
entirely, see Portal-to-Portal Act of 1947, 61 Stat. 84, as
amended, 29 U. S. C. §§ 251-262, or may leave him with an alternate
forum that will deny relief for some collateral reason
(e.
g., a statute of limitations bar). Our jurisdiction cases are
explained, I think, by the fact that the purpose of provisions
conferring or eliminating jurisdiction is to permit or forbid the
exercise of judicial power-so that the relevant event for
retroactivity purposes is the moment at which that power is sought
to be exercised. Thus, applying a jurisdiction-eliminating statute
to undo past judicial action would be applying it retroactively;
but applying it to prevent any judicial action after the statute
takes effect is applying it prospectively.
Finally, statutes eliminating previously available forms of
prospective relief provide another challenge to the Court's
approach. Courts traditionally withhold requested injunctions that
are not authorized by then-current law, even if they were
authorized at the time suit commenced and at the time the primary
conduct sought to be enjoined was first engaged in. See, e. g.,
American Steel Foundries v. TriCity Central Trades Council,
257 U. S. 184
(1921); Duplex Printing Press Co. v. Deering,
254 U. S. 443, 464
(1921). The reason, which has nothing to do with whether it is
possible to have a vested right to prospective relief, is that
"[o]bviously, this form of relief operates only in futuro," ibid.
Since the purpose of prospective relief is to affect the future
rather than remedy the past, the relevant time for judging its
retroactivity is the very moment at which it is ordered.3
3 A focus on the relevant retroactivity event also explains why
the presumption against retroactivity is not violated by
interpreting a statute to alter the future legal effect of past
transactions-so-called secondary retroactivity, see Bowen v.
Georgetown Univ. Hospital,
488 U. S. 204, 219220
(1988) (SCALIA, J., concurring) (citing McNulty, Corporations and
the Intertemporal Conflict of Laws, 55 Calif. L. Rev. 12, 58-60
(1967)); cf. Cox v. Hart,
260 U. S. 427, 435
(1922). A new ban on gambling applies to existing casinos and
casinos under construction, see ante, at 269-270, n. 24, even
though it "attaches a new disability" to those past investments.
The
294
I do not maintain that it will always be easy to determine, from
the statute's purpose, the relevant event for assessing its
retroactivity. As I have suggested, for example, a statutory
provision for attorney's fees presents a difficult case.
Ordinarily, however, the answer is clear-as it is in both Landgraf
and Rivers v. Roadway Express, Inc., post, p. 298. Unlike the
Court, I do not think that any of the provisions at issue is "not
easily classified," ante, at 281. They are all directed at the
regulation of primary conduct, and the occurrence of the primary
conduct is the relevant event.
JUSTICE BLACKMUN, dissenting.
Perhaps from an eagerness to resolve the "apparent tension," see
Kaiser Aluminum & Chemical Corp. v. Bonjorno,
494 U. S. 827, 837
(1990), between Bradley v. School Bd. of Richmond,
416 U. S. 696 (1974), and
Bowen v. Georgetown Univ. Hospital,
488 U. S. 204 (1988), the
Court rejects the "most logical reading," Kaiser, 494 U. S., at
838, of the Civil Rights Act of 1991, 105 Stat. 1071 (Act), and
resorts to a presumption against retroactivity. This approach seems
to me to pay insufficient fidelity to the settled principle that
the "starting point for interpretation of a statute 'is the
language of the statute itself,'" Kaiser, 494 U. S., at 835,
quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc.,
447 U. S. 102,
108 (1980), and extends the presumption against retroactive
legislation beyond its historical reach and purpose.
A straightforward textual analysis of the Act indicates that §
102's provision of compensatory damages and its attendant right to
a jury trial apply to cases pending on appeal on the date of
enactment. This analysis begins with § 402(a) of the Act, 105 Stat.
1099: "Except as otherwise specifically provided, this Act and the
amendments made by this Act
relevant retroactivity event is the primary activity of
gambling, not the primary activity of constructing casinos.
295
shall take effect upon enactment." Under the "settled rule that
a statute must, if possible, be construed in such fashion that
every word has operative effect," United States v. Nordic Village,
Inc.,
503 U. S.
30, 36 (1992), citing United States v. Menasche,
348 U. S. 528, 538-539
(1955), § 402(a)'s qualifying clause, "[e]xcept as otherwise
specifically provided," cannot be dismissed as mere surplusage or
an "insurance policy" against future judicial interpretation. Cf.
Gersman v. Group Health Assn., Inc.,
975 F.2d
886, 890 (CADC 1992). Instead, it most logically refers to the
Act's two sections "specifically provid[ing]" that the statute does
not apply to cases pending on the date of enactment: (a) § 402(b),
105 Stat. 1099, which provides, in effect, that the Act did not
apply to the then-pending case of Wards Cove Packing Co. v. Atonio,
490 U. S. 642
(1989), and (b) § 109(c), 105 Stat. 1078, which states that the
Act's protections of overseas employment "shall not apply with
respect to conduct occurring before the date of the enactment of
this Act." Self-evidently, if the entire Act were inapplicable to
pending cases, §§ 402(b) and 109(c) would be "entirely redundant."
Kungys v. United States,
485 U. S. 759, 778 (1988)
(plurality opinion). Thus, the clear implication is that, while §§
402(b) and 109(c) do not apply to pending cases, other
provisions-including § 102do.1 "'Absent a clearly expressed
legislative intention to the contrary, [this] language must ... be
regarded as conclusive.'" Kaiser, 494 U. S., at 835, quoting
Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S., at
108. The legislative history of the Act, featuring a welter of
conflicting and "some frankly partisan" floor statements, ante, at
262, but no committee report, evinces no such contrary
1 It is, of course, an "unexceptional" proposition that "a
particular statute may in some circumstances implicitly authorize
retroactive [application]." Bowen v. Georgetown Univ. Hospital,
488 U. S. 204,
223 (1988) (concurring opinion) (emphasis added).
296
legislative intent.2 Thus, I see no reason to dismiss as
"unlikely," ante, at 259, the most natural reading of the statute,
in order to embrace some other reading that is also "possible,"
ante, at 260.
Even if the language of the statute did not answer the
retroactivity question, it would be appropriate under our
precedents to apply § 102 to pending cases.3 The wellestablished
presumption against retroactive legislation, which serves to
protect settled expectations, is grounded in a respect for vested
rights. See, e.
g., Smead, The Rule Against Retroactive
Legislation: A Basic Principle of Jurisprudence, 20 Minn. L. Rev.
775, 784 (1936) (retroactivity
2 Virtually every Court of Appeals to consider the application
of the 1991 Act to pending cases has concluded that the legislative
history provides no reliable guidance. See, e. g., Gersman v. Group
Health Assn., Inc.,
975 F.2d
886 (CADC 1992); Mozee v. American Commercial Marine Service
Co., 963 F.2d
929 (CA7 1992).
The absence in the Act of the strong retroactivity language of
the vetoed 1990 legislation, which would have applied the new law
to final judgments as well as to pending cases, see H. R. 4000,
101st Cong., 2d Sess., § 15(b)(3) (1990), reprinted at 136 Congo
Rec. H6829 (Aug. 3, 1990) (providing that "any final judgment
entered prior to the date of the enactment of this Act as to which
the rights of any of the parties thereto have become fixed and
vested ... shall be vacated in whole or in part if justice
requires" and the Constitution permits), is not instructive of
Congress' intent with respect to pending cases alone.
Significantly, Congress also rejected language that put pending
claims beyond the reach of the 1990 or 1991 Act. See
id., at
H6747 (Michel-LaFalce amendment to 1990 Act) ("The amendments made
by this Act shall not apply with respect to claims arising before
the date of enactment of this Act");
id., at H6768
(Michel-LaFalce amendment rejected); 137 Congo Rec. S3023 (daily
ed. Mar. 12, 1991) (Sen. Dole's introduction of S. 611, which
included the 1990 Act's retroactivity provision);
id., at
13255, 13265-13266 (introduction and defeat of Michel substitute
for H. R. 1).
3 Directly at issue in this case are compensatory damages and
the right to a jury trial. While there is little unfairness in
requiring an employer to compensate the victims of intentional acts
of discrimination, or to have a jury determine those damages, the
imposition of punitive damages for preenactment conduct represents
a more difficult question, one not squarely addressed in this case
and one on which I express no opinion.
297
doctrine developed as an "inhibition against a construction
which ... would violate vested rights"). This presumption need not
be applied to remedial legislation, such as § 102, that does not
proscribe any conduct that was previously legal. See Sampeyreac v.
United States, 7 Pet. 222, 238 (1833) ("Almost every law, providing
a new remedy, affects and operates upon causes of action existing
at the time the law is passed"); Hastings v. Earth Satellite Corp.,
628 F.2d
85, 93 (CADC) ("Modification of remedy merely adjusts the
extent, or method of enforcement, of liability in instances in
which the possibility of liability previously was known"), cert.
denied,
449 U. S.
905 (1980); 1 J. Kent, Commentaries on American Law *455-*456
(Chancellor Kent's objection to a law "affecting and changing
vested rights" is "not understood to apply to remedial statutes,
which may be of a retrospective nature, provided they do not impair
contracts, or disturb absolute vested rights").
At no time within the last generation has an employer had a
vested right to engage in or to permit sexual harassment; "'there
is no such thing as a vested right to do wrong.'" Freeborn v.
Smith, 2 Wall. 160, 175 (1865). See also 2 N. Singer, Sutherland on
Statutory Construction § 41.04, p. 349 (4th rev. ed. 1986)
(procedural and remedial statutes that do not take away vested
rights are presumed to apply to pending actions). Section 102 of
the Act expands the remedies available for acts of intentional
discrimination, but does not alter the scope of the employee's
basic right to be free from discrimination or the employer's
corresponding legal duty. There is nothing unjust about holding an
employer responsible for injuries caused by conduct that has been
illegal for almost 30 years.
Accordingly, I respectfully dissent.
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