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MCCULLOUGH v. CONRAIL

March 3, 1992

WORTHAM M. McCULLOUGH, ROBERT McCULLOUGH, and GERALD A. GORE, Plaintiffs,
v.
CONSOLIDATED RAIL CORPORATION, Defendant.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

ORDER

 Before the court is Consolidated Rail Corporation's ("Conrail") motion to dismiss the amended complaint of Wortham McCullough, Robert McCullough, and Gerald Gore (collectively "plaintiffs"). For reasons detailed below, the motion is granted.

 FACTS

 Plaintiffs filed their complaint in March, 1990, alleging violations of 42 U.S.C. § 2000e et seq. for conduct occurring in 1983 and 1984. On December 4, 1991, plaintiffs were granted leave to amend their complaint to add claims under the Civil Rights Act of 1991 (the "Act"). Conrail moved to dismiss the amended complaint contending the Act did not apply to plaintiffs' claims, because the Act only applied to conduct occurring after it was signed into law. *fn1" Because the allegedly discriminatory conduct occurred before November 21, 1991, when President Bush signed the Act into law, the court must determine whether the Act is to be applied retroactively.

 DISCUSSION

 Determining whether a statute is to be applied retroactively is a matter of statutory construction. United States v. Kimberlin, 776 F.2d 1344, 1347 (7th Cir. 1985). Although some courts have deferred ruling on whether the Act should be applied retroactively until such time as the Supreme Court rules on the issue, that Court has implicitly suggested it would rather the circuits flesh out the problem before granting certiorari. See Holland v. First Virginia Banks, Inc., No. 91-974, 117 L. Ed. 2d 401, 1992 U.S. LEXIS 1266, 112 S. Ct. 1152 (S. Ct. Feb. 24, 1992); Gersman v. Group Health Assoc., Inc., 117 L. Ed. 2d 127, 112 S. Ct. 960 (1992) (both granting certiorari, vacating decision, and remanding the cases so that the circuit court could consider applicability of the Act). This court will therefore resolve the matter here.

 I. Review of Applicable Law

 The Supreme Court has laid down two separate tests to determine whether a statute should be applied retroactively or prospectively in Bradley v. School Bd. of Richmond, 416 U.S. 696, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974) and Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 102 L. Ed. 2d 493, 109 S. Ct. 468 (1988). There is an "apparent tension" between these two decisions, Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 837, 108 L. Ed. 2d 842, 110 S. Ct. 1570 (1990), and Justice Scalia went so far as to call the conflict irreconcilable. Id. at 841 (Scalia, J., concurring). As the court concludes that the result under either rule is the same, this court analyzes the Act under both rules, in a fashion similar to that employed by the Supreme Court in Bonjorno, in reaching its conclusion that the Act should apply prospectively. See id. at 837.

 A. Bradley v. School Board of Richmond

 In Bradley, parents of several school-age children sought attorneys' fees resulting from protracted desegregation litigation in the Richmond, Virginia school system. The district court awarded fees, despite the absence of a specific statutory grant of power to do so, based on the court's equity power and an analogy to the provision in the Civil Rights Act of 1964 which provided for the award of fees and costs. The school board appealed. After submission, but prior to the rendering of the Fourth Circuit's opinion, 20 U.S.C. § 1617 (1970 ed., Supp. II) was amended to provide for the award of attorney's fees in an appropriate school desegregation case. The en banc panel of the Court of Appeals did not consider application of § 1617 to the Bradley case as they had previously held that the law applied only to cases filed after its effective date. Bradley v. School Bd. of Richmond, 472 F.2d 318, 331 n.57 (4th Cir. 1972) (en banc) (citing Thompson v. School Bd. of City of Newport News, 472 F.2d 177, 178 (4th Cir. 1972)). The appellate court then reversed the trial court's award of fees finding that the invocation of equity to award fees was not proper. Id. at 332.

 The Supreme Court reversed, holding that the Court of Appeals should have applied § 1617 to Bradley. Bradley, supra, 416 U.S. at 724. The Court explained that "even where the intervening law does not explicitly recite that it is to be applied to pending cases, it is to be given recognition and effect." Id. at 715 (citing Thorpe v. Housing Auth. of Durham, 393 U.S. 268, 21 L. Ed. 2d 474, 89 S. Ct. 518 (1969) (expanding on holding of United States v. Schooner Peggy, 1 Cranch 103 (1801))). *fn2" Thus, the Court created a presumption that a Congressional enactment was to be applied retroactively to post-judgment decisions pending on appeal. Id.

 The Court found, however, that the presumption was not absolute and created two exceptions. First, if Congress has stated an intent to have the law be applied prospectively, it must be so applied. Id. at 715-16. Second, no retroactive effect can be given to a law if such an application would result in "manifest injustice". Id. at 716-717 (citing Thorpe and Schooner Peggy). "Manifest injustice" is a phrase of art, itself comprised of a three-part test used to determine whether a law should be applied retroactively. That tripartite analysis considers, "(a) the nature and identities of the parties, (b) the nature of their rights, and (c) the nature of the impact of the change in law upon those rights." Id. at 717.

 B. Bowen v. Georgetown University Hospital

 Fourteen years later, the Court decided Bowen v. Georgetown University Hospital. There, the Secretary of Health and Human Services promulgated an administrative regulation that attempted to retroactively affect the calculation of the "wage-index" for hospitals under the cost reimbursement program of Medicare. The Court was called upon to decide whether Congress (through the Medicare Act) had authorized the Secretary to create and implement ...


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