obligations on a party without notice or an opportunity to be heard. Bradley, 416 U.S. at 720. Here, the Act does create new and substantial rights and liabilities. Conrail, if proven to have committed the alleged violations, could be liable for thousands of dollars in punitive and compensatory damages not previously recoverable, least of all nine years ago when the alleged activities occurred. Applying such a change to the parties in this case would create substantial liabilities that could not be anticipated, even by the most visionary, in 1983 and 1984 when the conduct allegedly occurred. With such a change, prospective application is required.
Consequently, all three factors in the Bradley analysis for the manifest injustice exception support a conclusion that the law should be applied prospectively. The parties are private persons and entities although the issue is of national concern. Congress, in passing the new legislation, created real and substantial new rights for plaintiffs and concurrently real and substantial new obligations and liabilities for defendants. The Act as such is not merely remedial. Therefore, it would be manifestly unjust and in contradiction with both the facts and intent of Bradley to apply this law prospectively. As a result, both Bradley exceptions, legislative history and manifest injustice, are met here and prospective application of the Act is required. So too does Georgetown Hospital mandates prospective application.
IV. Other Caselaw
The case of Mojica v. Gannett Co., 779 F. Supp. 94 (N.D.Ill. 1991), reached a different conclusion using the Bradley analysis.
In reaching its decision, the distinguished judge emphasized that "the prevailing law was consistent with the 1991 Act's amendments to § 1981." Id. at 98-99. Thus, the court held that the 1991 Act did nothing to change the rights and liabilities of the parties in that case. Id. at 98. Mojica, therefore, is very fact-specific regarding the Act; in § 1981 cases the Act is retroactive at least in part because there was no perceived change in the law. Id. at 99. Yet the court did not have the benefit of the EEOC's policy statement which may have altered the judge's analysis as their decision, as the body charged with enforcement of the Act, is entitled to deference. However, as plaintiffs here attempt to invoke the entire Act, this court must take a broader perspective than the Mojica court was permitted to. To the extent this case speaks to the same issues as Mojica, the court disagrees with those conclusions. See also Graham v. Bodine Elec. Co., 1992 U.S. Dist. LEXIS 679 (N.D.Ill. Jan. 23, 1992); Bristow v. Drake Street, Inc., 1992 U.S. Dist. LEXIS 499 (N.D.Ill. Jan. 21, 1992) (both holding Act, in some part, is to be applied retroactively). See also Cary v. CHA, No. 87 C 6998, 1991 U.S. Dist. LEXIS 18543 (N.D.Ill. Dec. 16, 1991).
Dozens of other district courts have considered the subject and are evenly split on the question. Van Meter v. Barr, 778 F. Supp. 83 (D.D.C. 1991) was one of the first to hold that the law should be given prospective effect and overruled plaintiffs objections that the law was only a procedural nicety and therefore could easily be applied retroactively. Id. at 84; accord Johnson v. Rice, Civ. A. No. 2:85- CV-1318, 1992 WL 16284 (S.D. Ohio Jan. 24, 1992). Other examples of cases determining prospective effect are Tyree v. Riley, No. Civ.A. 88-2494 (ALJ), 783 F. Supp. 877, 1992 U.S. Dist. LEXIS 1741 (D.N.J. Feb. 7, 1992); Thompson v. Johnson & Johnson Mngt. Info. Ctr., 783 F. Supp. 893, 1992 U.S. Dist. LEXIS 1930 (D.N.J. Feb. 18, 1992); Khandelwal v. Compuadd Corp., No. 91-451, 780 F. Supp. 1077, 1992 U.S. Dist. LEXIS 448 (E.D.Va. Jan., 15, 1992); Sorlucco v. New York City Police Dept., No. 85 Civ. 6895 (MBM), 780 F. Supp. 202, 1992 U.S. Dist. LEXIS 71 (S.D.N.Y. Jan. 7, 1992); Hansel v. Public Serv. Co. of Colorado, 778 F. Supp. 1126 (D.Colo. 1991). The court is not without support for its conclusion that the law should be applied prospectively.
In sum, this court holds that the Civil Rights Act of 1991 applies prospectively. Therefore, for the foregoing reasons, plaintiffs' amended complaint is dismissed without prejudice.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court