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January 23, 1992



The opinion of the court was delivered by: HARRY D. LEINENWEBER


 Plaintiff, Joseph Graham ("Graham"), filed a two-count complaint in August 1990 alleging racial discrimination in defendant's, Bodine Electric Company, failure to promote him. Count I is brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"). Count II asserts the same allegations but is brought pursuant to 42 U.S.C. § 1981 ("Section 1981"). The case is now before the court on defendant's motion for partial summary judgment as to Count II. For the reasons stated herein, the court denies defendant's motion.


 Defendant argues that Graham does not have a viable Section 1981 claim under the tests enunciated by the United States Supreme Court in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L. Ed. 2d 132 (1989), and its progeny. Graham does not contest this analysis but claims that Patterson and its progeny do not apply to this case because they were effectively overruled by the Civil Rights Act of 1991 (the "Act" or the "1991 Act"), passed on November 21, 1991. Defendant agrees that plaintiff would have a viable Section 1981 discrimination claim if the 1991 Act applied, but argues the court should not apply the 1991 Act to cases pending at the time the Act was passed. Simply stated, the issue now before the court is whether the 1991 Act should be applied retroactively.

 Only one court in this district has ruled on this issue to date. In Mojica v. Gannett Co., 1991 WL 270602 (N.D. Ill.), Judge Hart held that the 1991 Act should be applied retroactively. The court finds Judge Hart's opinion highly persuasive. In Mojica, the court therefore applied the test enunciated by the Supreme Court in Bradley v. School Bd. of City of Richmond, 416 U.S. 696, 94 S. Ct. 2006, 40 L. Ed. 2d 476 (1974). Under Bradley, statutes which go into effect during a case's pendency are presumed to apply to that case unless there is clear Congressional intent to the contrary or application of the law would result in manifest injustice to one of the parties. In Mojica, the court found the legislative history of the 1991 Act inconclusive on the issue of retroactivity and that no manifest injustice would result from retroactivity. The court agrees.

 I. Congressional Intent

 The court's first inquiry in determining whether the statute applies to pending cases is the legislative intent in enacting it. In re Busick, 831 F.2d 745, 748 (7th Cir. 1987). To determine Congressional intent, a court must first look to the plain language of the statute. If the statute is silent, the court can apply general principles of statutory construction to determine if intent is implicit in the overall context of the statute. Finally, the court can also look to the legislative history of the statute for enlightenment.

 The plain language of the statute is not helpful in this case. Nowhere does the Act specifically provide for retroactive or proactive application. The only portion of the 1991 Act dealing with the effective date of the Act as a whole does not consider retroactivity. Section 402(a) of the 1991 Act states: "Except as otherwise provided, this Act shall take effect upon enactment." Section 402(a) does not indicate if, when the Act takes effect, it applies to cases already pending before courts.

 When the court looks to the overall context of the 1991 Act, it becomes clear that retroactivity is consistent with the language of the 1991 Act. Under general principles of statutory construction, a court must interpret a statute to give effect to every clause. "No provision should be construed as entirely redundant." Kungys v. U.S., 485 U.S. 759, 778, 108 S. Ct. 1537, 99 L. Ed. 2d 839 (1988). Two sections of the 1991 Act contain specific provisions for prospective application; this suggests that other portions of the 1991 Act do apply to pending cases. Section 109(c) states: "The Amendments made by this section shall not apply with respect to conduct occurring before the date of the enactment of this Act." Section 402(b) states: "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." If Congress intended the entire Act to apply only prospectively, it would not have needed to include these provisions. The court is unwilling to emasculate these provisions by making them redundant.

 A close examination of the legislative history of the 1991 Act reveals that Congress did not agree on whether the 1991 Act would apply to pending cases. The two sponsors of the bill in the Senate, Senators Danforth and Kennedy, did not agree. See 137 Cong. Rec. S15483-85 (Daily ed. Oct. 30, 1991) (Senator Danforth); 137 Cong. Rec. S15485-87 (Daily ed. Oct. 30, 1991) (Senator Kennedy). The Republicans were not of one mind. See, e.g., 137 Cong. Rec. H9549 (Daily ed. Nov. 7, 1991) (Statement of Representative Fish for retroactive application). There are no Committee Reports on the 1991 Act as finally enacted. Certainly, Congressional intent does not mandate only prospective application or meet the Bradley requirement that there be at least a "fair indication that the statute, properly construed, has only prospective effect." FDIC v. Wright, 942 F.2d 1089, 1095 (7th Cir. 1991).

 Supporting this view of Congressional intent is the fact that the 1991 Act was intended to return Section 1981 to its coverage before Patterson. In cases where Congress is correcting Supreme Court interpretations of a statute rather than creating new rights, the statute is frequently interpreted retroactively absent evidence of intent to the contrary. See Mrs. W. v. Tirozzi, 832 F.2d 748, 755 (2d Cir. 1987); Leake v. Long Island Jewish Med. Center, 695 F.Supp. 1414, 1417 (E.D.N.Y. 1988), aff'd, 869 F.2d 130 (2d Cir. 1989) (per curiam).

 Notwithstanding the ambiguity of Congressional intent, the language of the statute and general principles of statutory construction better support the view ...

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