Landgraf v. USI Film Products

FILM PRODUCTS USI LANDGRAF et al. April Argued 1993 Decided October No. 92-757. Court, Rehnquist, J.,

Stevens, opinion delivered the J., JJ., J., filed Ginsburg, Scaua, joined. and O’Connor, Souter, C. and Kennedy in which Thomas, judgment, opinion concurring an J., JJ., filed dissenting opinion, Blackmun, post, joined, p. post, 286. p. 294. petitioner. Schnapper argued On the the cause for

Eric Timothy Garrigan, B. Rich- Saunders, were Paul C. briefs Seymour, R. Vinick. T. and Sharon ard Days argued for the United cause General Solicitor urging the brief reversal. On et as amici curiae States al. Acting Bryson, Acting Assistant At- Solicitor General were torney Deputy Wallace, Turner, Solicitor General General Long, Flynn, Dimsey, Dennis Jr., A. David K. J. Robert Livingston. Troth, Donald R. K. Rebecca theOn for respondents. the cause Nager argued D. Glen N. Shane* was David brief óf the Court. delivered the opinion Stevens

Justice Act) (1991 Act or creates Act of Rights The Civil cer- damages and punitive recover compensatory right Act of 1964. Rights of the Civil of Title VII violations tain 1981a(a) (1988 ed., C. 1977A(a), Rev. Stat. 102-166, Pub. L. Act, the 1991 § 102 of added IV), Supp. that any party further provides The Act 1072. 105 Stat. are sought.1 if such damages jury a trial by demand may whether these provisions to decide certiorari We granted when on appeal that was pending Title VII case to a do not. they We hold enacted. statute was I 17, 1986, January peti- through From September Film USI was employed Barbara Landgraf tioner * Ameri- for the Asian urging reversal were filed curiae Briefs of amici Chin, by Denny Doreena al. Education Fund et Legal Defense and can Ancheta; Women’s Law Center and for the National Wong, Angelo N. Vargyas. and Ellen J. by Judith E. et al. Schaeffer American urging were filed for the curiae affirmance Briefs of amici Holzhauer, Frey, L. Andrew by et al. James D. Trucking Associations Rubinstein, Barney, Kenneth Getter, R. and Javier H. Daniel Kenneth S. Inc., Kolson; Express, by Alan J. Thiemann. and for Motor R Advisory Equal Employment filed for the amici curiae were Briefs of McDowell, Williams, Mona C. Douglas S. and by E. Council et al. Robert Peo- the Advancement Colored Zeiberg; Association for for the National Zaleznick, Kelleher, Fleischaker, L. Steven by Marc L. David ple et al. Lieberman, Freeman, Ventrell-Monsees, Dennis M. Michael Cathy Steven Foltin; Rabinove, Abrams, and Richard Hayes, Willie Samuel Courtland by Douglas Fryer, Douglas M. Dun- Packing Co. M. and for Wards Cove can, Phillips. L. and Richard §1981a(c) (1988 IV), ed., §1977A(c), Supp. U. S. C. 1 See Rev. Stat. conformity simplicity, with the of the 1991 Act. For added damages jury provi we will refer to the trial practice parties, 102(a) (c), respectively. §§ sions as worked the (USI) Texas. She in Tyler,

Products plant plastic a machine produced shift operating to a.m. p.m. Williams repeatedly named John A fellow employee bags. con- and physical remarks with inappropriate her harassed to her immediate supervisor Petitioner’s complaints tact. the incidents she reported but when relief, her no brought an investigation, he conducted manager, to the personnel de- him to another and transferred Williams, reprimanded her job. later quit Four days petitioner partment. the Equal Employ- with charge filed a timely Petitioner Commission). (EEOC or Commission ment Opportunity had been likely determined that petitioner The Commission a hostile work envi- creating of sexual harassment the victim Act of Title VII of Civil Rights in violation of ronment seq., et concluded that her em- §2000e but 1964, U. S. C. had remedied violation. Accordingly, adequately ployer a notice of and issued dismissed the charge the Commission to sue. right this action 21,1989, against commenced

On July petitioner successor owner, and that USI, company’s its corporate trial, the District Court found interest.2 After bench her to suf- harassed causing had sexually petitioner Williams However, the court concluded that she fer mental anguish. The court said: had not been constructively discharged. harassment was serious enough “Although hostile work environment existed establish severe that a reasonable per- it was not so Landgraf, This is son would have felt compelled resign. partic- true in of the fact that at the time Land- ularly light taken from her USI had ... resigned job, steps graf eliminate the hostile environment from arising working the sexual harassment. voluntarily resigned Landgraf plant Respondent Quantum Corporation Chemical owned the USI Inc., Packaging, petitioner Respondent when worked there. Bonar subse quently purchased operation. the with for

from her USI reasons unrelated to employment in the sexual harassment to for Pet. question.” App. B-3-4. Cert. court

Because the found was employment petitioner’s VII, violation of Title was not enti- terminated she relief, and Title tled to because VII did not then equitable her relief, other form court dismissed authorize any complaint. was 21,1991, while

On petitioner’s appeal pend- November Act of into law Civil the President Rights signed ing, argument The Court of rejected petitioner’s 1991. Appeals a on remanded for trial should be jury damages that her case remand Its decision not to rested the 1991 Act. pursuant the law effect “a court must ‘apply premise would result unless so decision, it renders its the time doing direction or there is statutory legisla- in manifest injustice Bd. School the contrary.’ Bradley [v. tive history (1974)].” 2d Richmond, 968 F. 1992). for (CA5 on the first provision jury Commenting 102(c), stated that the defendant §in the court trial requiring of a enacted ‘‘to this case because statutory change retry would be an and trial was injustice after the completed rules resources. We procedural waste of apply judicial cases, do not invalidate followed but we procedures pending Id., new was at 432-433. before the rule adopted.” court then characterized provision compensatory liabil- §in 102 ‘‘a seaehange employer damages punitive it concluded that would Title VII violations” and ity obli- this kind of additional unforeseeable unjust date of the effective to conduct occurring gation Id., in the District 433. no clear error Act. Finding affirmed the Court’s factual Court Appeals findings, for respondents. judgment the case for with

We certiorari set argument granted Inc., Rivers 298. Our order v. Roadway Express, post, p. § 102 of the 1991 limited to the whether question argument it law. 507 U. S. when became to cases pending Act applies decision, we of our (1993). Accordingly, purposes the of Court and Court Appeals the District assume that of dis- in at the time the the law effect properly applied of fact findings the relevant conduct and that criminatory the was therefore assume petitioner were We correct. VII, of Title but that violative sexual harassment victim of even damages recovery the did not then authorize any law if assume, arguendo, was We also she injured. though would be petitioner to occur today, the conduct were same find that she trial and that the jury might entitled to a jury mental or anguish that her was discharged, constructively damages an award of against other would support injuries Thus, controlling question the her former employer. the law should have Appeals applied whether Court of occurred, or discriminatory in at the time the conduct effect in of its 1992. July at the time decision

II submission is that the text Petitioner’s primary on its Act that it be to cases enact- applied pending requires Her if would make entire argument, ment. accepted, (with Act two narrow to conduct that exceptions) applicable occurred, filed, and to that were before the Act’s effec- cases case, tive in this we date. 102 is at issue only Although our with a of the brief preface analysis description scope the 1991 Act. Act to a

The 1991 is in series large response part of this Acts of decisions Rights Court Civil interpreting and 1964. 105 Stat. note 3(4), following Section C. as one of the Act’s U. S. identifies expressly pur- “to recent poses respond to decisions Court Supreme of relevant civil statutes expanding scope rights order to to victims of discrimi- provide protection adequate That section, §2(2), nation.” as well as a specific finding Atonio, identifies Wards Cove Co. v. Packing Sec- concerns.3 rise to special decision that gave as a Proof in Disparate “Burden of Act, entitled 105 of the tion Cove. to Wards Cases,” is a direct response Impact “re- drafted with were obviously of the Act sections Other § 101 Thus, in mind. Court” Supreme cent decisions post, Rivers, 298) amended the 1866 (which is at issue p. in the of racial discrimination Act’s Rights prohibition Civil contracts,” § 42 1981 U. S. C. and [of] “mak[ing] enforce[ment] to Patterson v. McLean (1988 in ed., IV), response Supp. to Price Union, Credit § (1989); 164 107 responds 491 U. Hopkins, (1989), Waterhouse forth setting 490 228 by v. U. S. § 108 cases; “mixed motive” responds standards applicable Wilks, to Martin v. cer- (1989), by prohibiting S. 755 U. con- implementing to employment practices tain challenges American Arabian to EEOC v. § decrees; sent 109 responds Co., “em- Oil the term (1991), by redefining include certain United States in Title VII to as used ployee” em- countries for United States working foreign citizens Technologies, Lorance v. AT&T §112 to responds ployers; Inc., to (1989), employees’ rights by expanding § to 113 responds discriminatory seniority systems; challenge Casey, Hospitals, Virginia Inc. West Univ. 499 U. S. 83 v. fees attorney’s may that an award (1991), by providing Library Con- fees; responds include expert gress Shaw, interest allowing 478 U. S. 310 the United States. against judgments Act, however, in the A number of important provisions For exam- decisions. were not Court responses Supreme test §106 new against adjusting enacts a prohibition ple, 2(2) the Wards Cove decision “has weakened the Section finds §3(2) rights protections,” scope and of Federal civil effectiveness codify” concepts enunciated expresses Congress’ intent “to certain Atonio, Packing “Supreme prior to Wards Cove Co. Court decisions (1989).” express references to that case U. S. 642 We take note of the 402(b), petitioner places particular it on which because is the focus infra, reliance. See at 258-263. sex, or national race, color, religion, the basis of

scores “on Title VII to include coverage § 117 extends origin”; and certain employees House of Representatives §§301-325 establish special proce- Branch; Legislative from discrimination. employees Senate protect dures directly that did respond Among provisions at issue in this case, is the one decision Court any Supreme §102. Intentional Discrimina- in Cases of

Entitled “Damages in relevant tion,” part: § 102 provides “(a) Right Recovery.—

“(1) a com- an action brought by Civil Rights. —In section 706 or 717 of the Civil under plaining party (42 2000e-5) a re- Act of 1964 U. S. C. against Rights in unlawful intentional discrimi- who spondent engaged (not nation an that is unlawful be- employment practice of its under section cause disparate impact) prohibited (42 or 717 of the Act U. S. C. 2000e-2 or 2000e- 703, 704, cannot re- 3), provided complaining party (42 under 1977 of the Revised Statutes cover section recover com- 1981), U. S. C. complaining party may in addition to damages any ... pensatory punitive relief authorized section of the Civil 706(g) Rights from 1964, Act of the respondent.

“(c) seeks Trial. —If Jury complaining party compensa- or under this section— tory punitive damages “(1) a trial demand any party may by jury.” Act, Before the enactment of the 1991 Title VII afforded form of mone- remedies. only “equitable” primary relief Title VI available was I’s rem- tary backpay.4 backpay 4 seeking We plaintiff backpay have decided whether a under Title g., Lytle Inc., See, Mfg., e. Household jury VII v. is entitled to a trial. 549, (1990) (assuming deciding right jury 494 U. S. n. 1 without no (1990) (same). trial); Terry, Teamsters v. peti 494 U. S. Because on that Labor Act, modeled National Relations edy,5 160(c), § is a “make-whole” that resembles 29 U. S. C. remedy in some Albemarle respects. compensatory damages (1975). Moody, Co. 405, 418-422 Paper However, the new of the 1991 Act is compensatory damages provision to,” “in addition and does not or duplicate, the back- replace allowed Indeed, under law. remedy prior pay prevent the 1991 Act recovery, double provides compensatory “shall not include interest on or damages backpay, backpay, other of relief authorized under section any type 706(g) 102(b)(2). § Act of Civil 1964.” Rights Section relief significantly expands monetary po- available to who would have been entitled tentially plaintiffs under law. Before mon- backpay prior example, relief for a etary discriminatorily discharged employee gen- included an amount to the erally “only the em- equal wages would have earned from the date of ployee to the discharge reinstatement, date of with lost benefits such along fringe benefits.” United States Burke, vacation pay pension 102, however, Under a Title VII who wins a award also seek plaintiff backpay may compensa- losses, for “future tory damages emotional pecuniary pain, inconvenience, mental loss of suffering, anguish, enjoyment 102(b)(3). life, and other losses.” nonpecuniary In ad- argue tioner does not right jury she had a trial even pre-1991 under law, again question. we need not address this 5“If respondent the court finds that the intentionally engaged has in... employment an practice charged unlawful complaint, may the court . may . . order such appropriate, affirmative action as may in- clude, to, but is not limited hiring employees, reinstatement with or pay without back any equitable ... or other relief as the court deems appropriate. pay liability Back shall not accrue from a date more than years two prior filing to the charge of a with the Commission. Interim earnings or amounts earnable with diligence by reasonable person or persons against operate discriminated shall to reduce the pay back other- wise allowable.” Rights 1964, § Civil Act 706(g), amended, as (1988 IV). §2000e-6(g) ed., U. S. C. Supp. “with malice acted that the employer it is shown when

dition, federally pro- to the [plaintiff’s] indifference reckless or with recover punitive 102(b)(1), may plaintiff tected rights,” damages.6 for some forms of relief monetary 102 also allows

Section have not jus- that would previously discrimination workplace any illustrates, this case As Title VII. relief under tified under law was prior proved, if discrimination even unlawful relief unless recover monetary could not a Title VII plaintiff ef- have some concrete found to was also the discrimination as a denied status, such the plaintiff’s employment fect on or termination. in compensation, a differential promotion, Burke, (“[T]he circumscribed reme- S., at 240. U. stand in the 1991 Act] under Title VII [before dies available available under traditional to those only marked contrast statutes, anti-discrimination but under other federal law, tort well”). to recover however, allows plaintiff Section has been unlawful discrimi- in which there in circumstances or “terms, conditions, employ- in the privileges nation the discrimi- §2000e-2(a)(l),7 even though 42 U. C. ment,” short, In or a loss of discharge pay. did not involve a nation of eradicat- “central statutory purposes to further Title VII’s economy making per- discrimination throughout ing discrimina- whole for suffered injuries through past sons Paper Co., tion,” Albemarle 102 of the U. 102(b)(3) limits, employer, imposes varying with the size of the Section damages may compensatory punitive on the amount of Thus, damages the sum such plaintiff. awarded to an individual $50,000 plaintiff may employers for with between awarded a not exceed employees; $100,000 employers 101 and 200 and 100 for with between employees; $200,000 employees; employers with between and 500 $300,000 employers employees. with more than 500 Inc., Systems, (1993) (discrimina See Harris Forklift “terms, conditions, employment” privileges tion or actionable under discrimination”) (cita ‘tangible’ Title VII “is not limited to ‘economic’ omitted). quotation tions and internal marks

255 relief available in the expansion a major Act effects 1991 discrimination. of employment victims both bill passed rights civil 1990, comprehensive In inAct to the 1991 similar Although of Congress. Houses con- in that it differed the 1990 bill respects, other many many for application calling expressly language tained damages providing the section including its provisions, discrimination, to cases intentional employment in cases ve- The President enactment.8 its (expected) arising 8 1990, 2104, 101st Rights Act of of the Civil section The relevant (1990), provided: Cong., 1st Sess. Application Rules. and Transition of Amendments

"Sec. 15. Application by— made “(a) amendments Amendments. —The on or commenced “(1) proceedings pending apply 4 to all shall section Atonio, 490 Packing v.Co. of Wards Cove 1989 date [the June after 642]; U. S. or commenced “(2) pending on proceedings all apply 5 shall section 228]; U. S. Hopkins, 1,1989 Waterhouse date of Price May [the after commenced “(3) pending on or proceedings apply 6 shall to all section 755]; Wilks, 490 U. S. 12,1989 Martin v. date of [the after June 7(a)(3) compensa- "(4) 7(a)(4), 7(b), 7(a)(1), [providing and sections discrimination], 9, 10, damages for intentional tory punitive the date of after pending on or commenced proceedings to all apply shall Act; of this enactment 7(a)(2) after “(5) proceedings pending on or apply to all shall section Inc., Technologies, of Lorance v. AT&T date [the June 900]; and “(6) pending on or commenced proceedings all shall section Union, 491 v. McLean Credit date of Patterson [the

after June 164]. — “(b) Transition Rules “(1) the effective Any by entered a court between In orders General. — (a) this Act date of enactment of described in subsection and the dates 4, 5, 7(a)(2), the amendments made sections that are inconsistent with if, year date of enact- not later than after such shall be vacated ment, request for such relief is made. Judgments. (1)

“(3) (2), any final paragraphs Final —Pursuant this Act as to judgment prior entered to the date of the enactment of fixed and rights any parties which the thereto have become “unfair the bill’s however, citing 1990 legislation, toed Con- for his disapproval.9 reason as one rules” retroactivity 136 Cong. the veto. See to override failed narrowly gress in favor 1990) (66 vote 34 Senate (Oct. Rec. S16589 override). of 1991 Act can- in the language of comparable

The absence to unawareness to oversight be attributed realistically not that one seems Rather, likely it issue. retroactivity enact the it made possible of the compromises the kind explicit to include was an agreement version in the 1990 bill. found command retroactivity retroactivity provision the elaborate omission of source only political no means was by bill—which because not dispositive that legislation over controversy —is was struck where the compromise not tell us precisely it does have for example, might, The Legislature in the 1991 Act. that, of retroactivity form on a less expansive settled in 1991 de- finally reach cases already did not bill, the 1990 unlike cases still to reach only A decision 8,n. cided. See supra. in the failure Congress’ provide explain might pending judg- judicial of such seeking further review vested, the time for where Code, States 28 of the United expired pursuant to title ment has otherwise Appellate Procedure, Rules of and the Federal Rules of Civil the Federal pursuant part justice requires if Procedure, in whole or shall be vacated 60(b)(6) appro- other of Civil Procedure or of the Federal Rules to rule requirements of authority, with the constitutional priate and consistent process due of law.” Returning Approval Without Message Senate See President’s to the (Oct. 1990, Weekly Comp. Doc. 1632-1634 Rights Pres. the Civil Act (Oct. S16418, 22,1990). The 22,1990), S16419 reprinted Cong. in 136 Rec. “retroactivity” only briefly; to the bill’s message President’s veto referred referred was Attorney to which the President General’sMemorandum only special expansive, may read to refer to the bill’s no more 8, supra, rather than its provision reopening judgments, final see n. Attorney See Memorandum of the provisions covering pending cases. (Oct. 1990) App. to Brief for Petitioner General to the President (“And in the law made unfairly applies changes A-13 Section 15 added). decided") (emphasis already S. 2104 to cases sections would certain it had Act, as Our dates. preenactment on specific pending to proceedings text on the statutory is whether then, first question, 1991 Act should intent that the an relies manifests petitioner its went to trial before that arose to cases be applied enactment.

Ill on three relies provisions textual argument Petitioner’s 109(c). 402(a), Section 402(a), 402(b), §§ Act: the 1991 to the directly ques- of the Act that speaks the only provision states: us, tion Act this provided, as otherwise specifically

“Except effect this Act shall take made by amendments and the enactment.” upon before resolve the itself, question not, by does

That language effective on will become that a statute A statement us. it has any suggest not even arguably does certain date an earlier date.10 conduct that occurred to application suggests that to Title VII history prior amendments The of especially inapt have been an would “effective-upon-enactment” formula Equal Title VII in the When it amended way pending cases. to reach 1972, Congress explicitly provided: of Employment Opportunity Act Rights of the Civil Act to section 706 by amendments made this “The charges pending with the respect to applicable with Act of 1964 shall charges filed of this Act and all the date of enactment Commission on contrast, amending 92-261, 14,86 § 113. In Stat. Pub. L. thereafter.” 1978, Con- pregnancy the basis of VII to bar discrimination on Title gress provided: (b), by made this Act the amendment

“Except provided in subsection §2(a), 92 Stat. 2076. on the date of enactment.” shall be effective the 1978 amendments only Appeals to consider whether The Courts of they See Schwabenbauer did not. applied pending to cases concluded (CA2 310, Olean, n. 7 667 F. 2d School Dist. v. Board Ed. of of of (CA4 Lines, Inc., F. 1139-1140 1981); Air 2d. Condit v. United Co., 1980). F. 2d Refining Marketing & Jensen v. Oil See also Gulf (CA5 1980) Employment Act amendments (Age Discrimination inapplica- of this Act” designated on the date enactment to “take effect argue Rather, otherwise. she contends does not Petitioner 402(a) § superfluous introductory would be clause that the 402(b) 109(e), §§ provide pro- which to it refers unless spective in limited contexts. 402(b) exempt agree parties was intended to against disparate impact single lawsuit the Wards Cove 402(b) provides:

Packing Company. Section “(b) Impact Disparate Cases.—Notwith- Certain nothing any provision standing Act, of this in this other any disparate impact apply to case which a Act shall complaint 1, 1975, March and for was filed before after initial decision was rendered October 1983.” an 109(c), extending part Title VII section Section employers, states: overseas

“(c) Application Amendments —The amend- respect with ments made this section shall not occurring the date of the enactment of conduct this Act.”

According petitioner, two subsections are the “other these 402(a), provisions” contemplated first clause of in the together strong negative inference that all create a sections prospective apply specifically of the Act not declared pending cases that arose before November 1991. addressing particulars petitioner’s argument,

Before extraordinary places weight we observe that she on two com- paratively provisions long minor and in a narrow com- plex Applying arising entire Act to statute. the cases from preenactment important consequences, conduct would have including possibility completed the trials that before its en- Co., enactment); Sikora v. American Can arising ble to case (CA3 1980) (same). F. 2d 1119-1124 Congress If we assume that University cf. Cannon decisions, was familiar Chicago, with those 402(a) (1979), § 441 U. S. language 698-699 its choice of would imply nonretroactivity. that retried and the possibility need to be

actment would for conduct damages liable for punitive would be employers appli- Purely prospective the Act’s enactment. antedating the life of a remedial would cation, hand, on the other prolong statutes, civil constructions of scheme, rights and of judicial the wanting. high found Given that Congress obviously broad coverage stakes of the retroactivity question, statute, retroactivity pro- and the and specific prominent bill, Congress it would be surprising visions in- negative have chosen to resolve that question through limited effect. quite ferences drawn from two provisions the canon that a court should Petitioner, however, invokes of a statute and thus avoid effect to every provision give g., Mackey e. See, different redundancy among provisions. Agency Service, Inc., & v. Lanier Collection the word “otherwise” 837, and n. 11 Unless 402(b) 402(a) contends, § 109(c), § she § refers to either 402(a) More- §in are entirely superfluous. first five words “[ejxpressio unius est exclusio over, on the canon relying County Narcotics In- Tarrant alterius,” see Leatherman telligence Unit, and Coordination because Congress provided specifi- that petitioner argues (§§ 109(c) 402(b)), we for' in two cally prospectivity places for the remainder infer it the opposite should that intended of the statute. 402(a) § as begins: “Except

Petitioner emphasizes A scan of the statute for otherwise specifically provided.” effective dates reveals concerning other “specific provisions” 402(b) 109(c) §§ are the most candidates. likely those decree and since Since provisions prospectivity, exceptions, 402(a) § tells us that are specific provisions 402(b) rule of should be considered prescribing general Petitioner’s has some but we retroactivity. force, argument most find it intended the unlikely Congress introductory clause carry critically important meaning petitioner 402(a) it. Had wished to have such a de- assigns Congress meaning, surely language terminate it would have used com- parable predecessor damages to its reference to the Title VII provisions legislation: provisions in the 1990 that the new apply proceedings pending on “shall to all or commenced after the date of enactment of this Act.” S. 101st 15(a)(4)(1990). § Cong., 1st Sess. entirely possible Congress

It is inserted the “other- specifically provided” language wise not because it under- stood the “takes effect” clause to establish a rule of retroac- tivity only provisions” specific to which two “other would exceptions, any specific timing but instead to assure that provisions prevail general in the Act would over the “take compli- effect on enactment” command. The drafters of a piece legislation containing separate cated more than 50 may “except sections well have inserted the as otherwise provided” language merely to avoid the risk of an inadver- introductory tent conflict in the statute.11 If the clause of 402(a) § §§402(b), specifically 109(c), was intended to refer why both, it is difficult to understand the drafters chose appro- word “otherwise” rather than either or both of the priate section numbers. unpersuaded by petitioner’s argument

We are also 402(b) 109(c) §§ merely duplicate both the “take effect 402(a) upon § pro- enactment” command of unless all other including § damages provisions visions, pending argument depends assumption cases. That on the provisions that all uniformly those other must be treated purposes pending of their cases based preenactment thesis, conduct. That however, no 11There is some evidence that the drafters of the 1991 Act did not devote particular attention to interplay of the Act’s “effective provi date” sions. Section which directs the EEOC to establish a “Technical As Training sistance Institute” assist'employers complying with antidis crimination regulations, laws and contains a subsection providing that it “shall take effect on 110(b). the date of the enactment of this Act.” 402(a) provision That unavoidably are redundant. entirely possible indeed, It is one. inevitable an means — the resolve to unable it was probable because highly that,— legislation, clarity the 1990 of retroactivity the with issue open resolved to be issue as an Congress the matter viewed retroactivity doubts left precedents on by Our courts. the con- apply absence in the rule would default what about provisions suggested some that guidance, and gressional others arising while before enactment might to cases Hospi- Georgetown Univ. Compare Bowen v. might not.12 Bradley Rich- 13d. v. School with U. S. tal, 488 Jersey, (1974). v. New also Bennett mond, Congress only not did matters The 109(c) §§ specificity in out with were set courts to the leave judicial 402(b). concerning retro- Congressional doubt and routine that the coupled the likelihood activity with doctrine, require language courts would upon enactment” “take effect explana- provide plausible upon doctrine, that fall back to 109(c) 402(b) provi- §§ makes neither that for both tion redundant. sion unlikely 402(b), § the that it

Turning seems the text of to provision (“Notwithstanding any other introductory phrase immediately preced- Act”) to to refer the was meant this any contend that petitioner does not ing Since subsection. general issue, the date speaks effective provision the other phrase interpret requires argument us to logic her 402(a).” “Notwithstanding Peti- nothing more than mean selected argument the drafters assumes that textual tioner’s 402(a) identify two word “otherwise” indefinite the unius” “expressio petitioner’s force of point This also diminishes Con assumption that unsupported Once one abandons argument. alike, and provisions would be treated that all of Act’s gress expected 109(c) rule, §§ applicable default uncertainty about takes account from 402(b) implication petitioner draws carry negative do anything than de doing provision as more We not read either them. do cov respect specific retroactivity with to the matters finitively rejecting language. plain its ered term “any more indefinite the even subsections

specific more than 402(b) to refer to § nothing other provision” 402(a). Here §402(b)’s again, peti- next-door neighbor §— us to assume would require tioner’s statutory argument an route convey indirect chose surprisingly Congress Act’s concerning message and easily expressed important cases. effect on pending Act reinforces of the 1991 history relevant legislative 402(b) bear cannot 402(a), 109(c), and §§

our conclusion as 1991 bill The them. places upon the weight petitioner retroac contained explicit in the House introduced originally bill.13 the 1990 those found to similar tivity provisions omit was upon that agreed substitute the However, Senate The legislative retroactivity provisions.14 ted those explicit the about statements some frankly partisan discloses history state but those date effective language, of the final meaning as any general be read reflecting cannot plausibly ments Mem that no evidence reveals history The agreement.15 13 (1991), in 137 § reprinted Sess. 113 Cong., 1st R. 102d See, e. H. g., to the (Jan. 3,1991). proviso The prospectivity H3924-H3925 Rec. Cong. legis to first added employers overseas was VII to extending Title section 1,R. 102d See H. to cases. pending to apply was generally lation that 119(c) Rec. H3925-H3926 Cong. in 137 reprinted § 1st Sess. Cong., introduced, provi the 1991). (June Thus, language was at the time its 109(c) not redundant. surely was became sion that 14 provided explicitly hand, that would have proposals two the other On (Mar. S3021, S3023 Cong. Rec. See foundered. also prospectivity 13255,13265-13266. id., 12,1991); behalf on introduced memorandum” “interpretive example, an For Act, the became the bill that of S. sponsors Republican of seven that, unless otherwise provides bill “[t]he that Danforth stated Senator enactment upon effect shall take legislation of this provisions the specified, added). Sen Id., (emphasis at 29047 retroactively.” apply not and shall the to determine the up to 'courts that it “will Kennedy responded ator pending that were and cases claims will which the bill extent Ibid, Bd. Rich v. School Bradley (citing of enactment.” date the of reveals other (1974)). partisan history mond, legislative provisions. date” the Act’s “effective meaning of proper on the statements carry weight little statements that such Danforth observed Senator it: history. put heAs legislative tacitly struck on been agreement had an believed

bers suggest little to retroactivity issue, controversial the interplay of the intended Congress understood peti 109(c) effect 402(b), the decisive 402(a), to have §§ 1991 Act history of Instead, the assigns them. tioner disagree agreed to legislators impression that conveys the apply to would the Act extent to what whether about conduct. preenactment may indicate bill passage

Although of appli retroactive favored Congress also majority the 1991 of law become majority not does the will cation, even §7, cl. I, in Article path charted it follows unless 919, 946-951 Chadha, 462 U. S. INS Constitution. unambiguous directive the kind the absence In elsewhere must look §15 bill, we found applies this case. whether guidance on

> ’ between tension “apparent find uncommon It is Professor As statutory construction. canons different can- many traditional illustrated, famously Llewellyn question the resolve In order equal opposites.16 have ons have labored courts federal Act, 1991 open the left floor salt grain large with a take advised would be well court “[A] Congressional Record in the placed statements and debate us.” that is legislation for the interpretation an to create purport (Oct. 29,1991).) S15325 Rec. Cong. the and Decision Theory Appellate the Remarks Llewellyn, See L. Rev. Construed, Vand. are to How Statutes about or Canons Rules between conflict apparent identified article Llewellyn’s that canon liability or forfeiture, aor new penalty a new imposing statute “[a] having construed not be will of action right new creating a disability, or effect” a retroactive rule that countervailing and if retroactive construed liberally “[rjemedial are to be statutes such receive should they justice, the ends promote will

interpretation omitted). (citations Id., construction.” contradictory in seemingly statements found two reconcile intervening changes concerning the effect of our decisions applicable generally framed as a is Each statement the law. specify interpreting their tem- that do statutes rule for is to rule that “a court poral first is the The reach. Bradley, decision,” its it renders at the time law in effect “[Retroactiv- the axiom that second is S., at 711. U. corollary interpretive its ity law,” and in the is not favored will “congressional administrative rules enactments unless their lan- retroactive effect to have not be construed S., at guage requires Bowen, 488 U. 208. this result.” “apparent previously tension” between noted haveWe expressions. Aluminum Kaiser & Chemical those (1990); Bonjorno, Bennett, see also Corp. unnecessary in it Kaiser to We found S., at 639-640. 470 U. seeming view, under either conflict “because resolve governs,” congressional clear, and the it intent where the in that case evinced prejudgment statute at issue interest applicable congressional “not it was intent” that “clear judgments its effective date.” entered before today, however, we have con- In the case before us 837-838. any expression evince clear the 1991Act does not cluded that arising before the to cases of intent on 102’s apparent therefore, focus on the must, Act’s enactment. We handling espoused have between the rules we tension problems of an instruction from in the absence similar Congress. begin by noting no between the that there is tension

We holdings Bradley of which were unani- Bowen, both Relying unanimous decision— mous on another decisions. Authority Thorpe Housing Durham, 393 U. S. 268 (1969) authorizing Bradley a statute held —we rights plaintiffs attorney’s civil award of fees to successful appeal applied pending at the time the a case that was Department of statute was held that the enacted. Bowen statutory authority to Health and Human lacked Services hospitals private refund requiring promulgate rule a promulga- rendered payments for services Medicare purport to opinion did not in Bowen rule. Our of the tion light, turn we In this Bradley reach. limit its or to overrule mindful canons the two “apparent between tension” vitality, the “maxim unquestionable canon of another every opinion, expressions, in general disregarded that be those the case in with in connection taken are to be Virginia, 6 Wheat. v. expressions Cohens used.” are (1821). A presumption demonstrated, the has As Scalia Justice juris- deeply in our legislation rooted against retroactive than legal older doctrine centuries prudence, and embodies dic- Elementary of fairness Republic.17 considerations our opportunity to know an should have that individuals tate accordingly; their conduct conform and to the law is what disrupted.18 lightly For expectations not be should settled legal of conduct “principle effect reason, the that existed ordinarily the law under assessed should ap- place universal timeless and has took the conduct when concurring). In peal.” Kaiser, at J., U. (Scalia, Corp. Bonjorno, v. Aluminum & Chemical See Kaiser g., (1990) (Scalia, e. Dash also, J., concurring). See 842-844, 855-856 Eng (“It (N. 1811) Meeck, principle is a *477, Y. Van *503 Johns. itself, statute, its even of law, ancient as the lish common law effect”) J.); (Kent, C. retrospective to have a omnipotent parliament, is not Principle of A Legislation: Basic Smead, Against Retroactive The Rule L. Rev. 775 Jurisprudence, 20 Minn. (“Ret (1992) Romein, 181, 191 Corp. See General Motors are more serious presents problems of unfairness that legislation roactive deprive citizens legislation, it can posed by prospective because than those Munzer, transactions”); A upset settled legitimate expectations (“The (1982) L. Rev. Theory Legislation, 61 Texas of Retroactive behavior persons their entitlement have rule of law... is a defeasible advance”). Fuller, The L. governed by publicly fixed in also rules (hereinafter Fuller). (1964) Morality Law 51-62 creativity society, and dynamic in both commercial free, a gives peo- by rule of law that a is fostered endeavors artistic consequences legal of their actions. ple about confidence antiretroactivity surprising that the not It is therefore provisions expression of our Consti- principle in several finds flatly prohibits retroac- Facto Clause Ex Post The tution. legislation.19 penal I, Article cl. tive prohibits type passing of retroactive another from States Obligation “impairing of Contracts.” legislation, laws Legis- prevents Takings Clause Amendment’s The Fifth actors) (and private depriving government from lature other rights except “public property use” persons a vested prohibitions “just compensation.” payment upon The §§ legislatures prohibit 9-10, I, persons in Art. on “Bills of Attainder” meting singling out sum- out disfavored from g., past mary punishment e. See, United States conduct. (1965). The Due Process 437, 456-462 Brown, 381 U. S. repose protects in fair notice and the interests also Clause justi- by legislation; may compromised retroactive be applica- prospective to validate a statute’s fication sufficient “may retro- not suffice” to warrant its under the Clause tion Mining application. Usery Co., v. Turner Elkhorn active 428 U. S. provisions that retroactive statutes

These demonstrate particular Legislature’s unmatched raise concerns. suddenly powers sweep away expectations allow it to settled responsivity and without individualized consideration. Its political pressures poses may tempted risk that it legislation against use retroactive as a means retribution unpopular groups As Marshall ob- individuals. Justice opinion Graham, in his served for the Court Weaver v. only the Ex Post Facto en- Clause Article I contains two Ex Post Facto Clauses, one directed to Con 1). (§9, gress 3), (§10, cl. the other to the States cl. We have construed Bull, See Calder applicable only penal legislation. the Clauses as (1798) J.). (opinion Chase, Dali. 390-391 effect about the warning” have “fair individuals sures that power but also “restricts statutes, governmental of criminal vindictive legisla- arbitrary potentially restraining omitted).20 Id., at 28-29 (citations tion.” limited course, are of restrictions, of The Constitution’s of one of those provisions, a violation specific Absent scope; is not of retroactive civil legislation unfairness the potential statute its for a court to fail to a give reason a sufficient en- often serve Retroactivity provisions intended scope.21 (1989) 469, 513-514 (“Leg Co., A v. J. Croson U. See Richmond gov rules to policymaking promulgate bodies that primarily islatures are against the enact prohibitions The constitutional ern future conduct. a valid concern laws and bills of attainder reflect post ment ex facto past conduct political process punish to or characterize the use of the about legislative judicial system, rather than the citizens. It is the private fashion identify past wrongdoers and to equipped is best to process, that have ex presumably the conditions that would that will create remedies committed”) (Stevens, J., concurring part in and wrong had no been isted States, n. 3 James v. United 366 U. S. concurring judgment); in (retroactive (1961) may pre to punitive purpose measures reflect “a not penalty generally impose by legislation but to a dangerous vent conduct persons”). against specific persons or classes of special argued legislation that retroactive also offered James Madison special improper legislative opportunities powerful for the to obtain “[bjills laws, Madison, attainder, According post ex facto benefits. to “contrary to the first impairing obligation of contracts” were and laws legisla- compact, every principle and to of sound principles of .the social “specu- tion,” the “influential” to part because such measures invited measures,” public to the detriment of the “more industrious late] on (J. community.” p. No. part less informed of the The Federalist 1961). Hochman, Supreme Court and the Constitution- Cooke ed. (1960) (a 692,693 retroac- ality Legislation, of Retroactive 73 Harv. L. Rev. knowledge will benefit “may passed tive statute with an exact of who it”). from cases, however, avoiding adjudication In some the interest questions against application. constitutional will counsel a retroactive effect, challenged given regulatory For if a statute is to be retroactive supports prospective necessarily sus application interest that will not also Guaranty Corpo past tain its to events. See Pension Benefit Co., (1984); Gray Usery A Turner ration v. R. & respond to purposes, legitimate whether benign tirely prevent circumvention mistakes, emergencies, correct preceding immediately its interval in the statute of a new new law comprehensive to a give effect simply passage, or requirement that salutary. However, a Congress considers helps ensure clear Congress make its intention first retroac- that the benefits Congress has determined itself disruption or unfairness. outweigh potential for tivity long retroactivity disfavored, de- statutory has been While always “retroactively” operates ciding statute when a Sitting Circuit, Justice task. simple mechanical Propaga- Society Story influential definition an offered (CC (No. 13,156) Gospel Wheeler, 22 F. Cas. tion of Hamp- provision 1814), construing New a case NH “retrospective” broadly prohibits shire Constitution rejected Story first civil.22 Justice and both criminal laws only explicitly retroactive provision bars the notion that the from a effect to take legislation, . enacted e., i. “statutes . . a con- passage.” Such Id., at 767. their time anterior “utterly of all subversive concluded, would be he struction, prohibition. the ban objects” Instead, Ibid. which, legislation statutes, retrospective “all embraced only passage, vested though operating affect their from punitive dam- Co., 1,17 In this case Mining Elkhorn we assume purposes present but for provision may question, raise a ages application of provide for ample power to retroactive Congress has §102. 22 “Retrospec Rights provides: Bill of Hampshire Article 23 of the New laws, unjust. No such highly injurious, oppressive and tive laws are or the therefore, made, decision of causes be either for the civil should new statute Society At in the case was a punishment issue offenses.” wrongful possessors by allowing certain rule that reversed common-law owner, rightful compensation land, being ejected by the to obtain upon the new stat Story land. Justice improvements made on the held not, consistently with Arti impaired rights and thus could ute owner’s improvements made before applied require compensation cle Cas., See 22 F. 766-769. the statute’s enactment. "Jus- Ibid. principle, “Upon transactions.” and past

rights elaborated, tice Story vested or impairs takes away which statute,

“every a new creates laws, or existing under acquired rights dis new attaches a or newa duty, imposes obligation, al or considerations transactions in respect ability, Ibid. . . . retrospective deemed must be ready past, Van Dash v. Bull, 3 Dali. Calder (citing 1811)). (N. Y. Kleeck, 1 Johns. *477 concep- functional varied, similar have formulas Though this voice found have “retroactivity” tions legislative elsewhere.23 decisions Court’s be merely “retrospectively” does operate A statute antedating conduct from arising in a case it is cause applied Miami Bank Nat. see Republic enactment, the statute's J., concur (1992) (Thomas, 80, 100 States, U. S. v. United expecta or upsets in judgment), concurring in part ring ask must court Rather, law.24 based prior tions (“A (1987) is retro law 423, 430 Florida, See, Miller v. e. g., its completed of acts consequences legal ‘changes the if it spective (1981)); Graham, U. S. ”) Weaver (quoting effective date’ (1913) 190, 199 Co., U. S. Yards Stock v. Laramie Co. R. Union Pacific to acts or conduct effect or quality “a (retroactive gives statute performed”); were they when contemplate did not not have they did (a one (1885) statute retroactive Carter, Sturges v. laws, existing under acquired rights vested impairs away or “takes new disabil duty, or attaches newa imposes obligation, a new or creates 1979) (5th Justice (quoting ed. 1184 Dictionary Law Black’s See also ity”). Con Statutory on Singer, Sutherland 2 N. Society); from definition Story’s and 1993) (“The ‘retroactive’ terms (5th ed. rev. §41.01, 337 p. struction acts They describe usage .... judicial synonymous are ‘retrospective’ obliga and rights or have occurred which on transactions operate which act”). the of passage before existed which tions expecta may unsettle statutes uncontroversially prospective 24 Even zoning or tax property a new conduct: past on burdens impose and tions those prompted expectations the reasonable may upset regulation per the harms banning gambling newa law property; acquire to affected or law’s enactment the casino before a construct begun to had son who

270 legal consequences new provision attaches the new

whether conclusion The its completed enactment. before events to “retroactively” the comes operates rule particular a concerning and ex- nature the judgment process of of a end degree connection of the law and in the change tent past rule relevant new operation of the between dis- retroactivity room will leave Any test event. classify unlikely the enor- is to cases, in hard agreement philosophical clar- perfect changes with legal variety of mous judges tend on retroactivity a matter ity. However, Water v. Groton instinct[s],” see ... have “sound Danforth (1901) (Holmes, 1033, N. E. Co., Mass. reli- notice, reasonable fair J.), considerations and familiar guidance. sound offer expectations settled ance, and have declined Court, we days this early Since rights burdening private statutes effect to give retroactive Thus, United intent. its clear Congress had made unless apply a refused we Heth, 3 Cranch v. States collec- of customs reducing commissions statute federal enactment statute’s commenced tors to collections imperative” strong, “clear, lacked the statute because (opin- id., application, requiring retroactive language statutory ret- J.). against presumption Paterson, ion by reference explained consistently been roactivity has persons after burdens on imposing new unfairness applied to stat- contrary rule law a common Indeed, at fact. rights re- private on a burden merely removed utes civil); (whether such criminal provision penal pealing a (“If every time Fuller See cards. to count learning his life spent affairs, made secure he were his arranging law in existing relied man law would of our body rules, the whole legal change any against merely retroactive forever”). “is not made Moreover, a statute ossified Hart, Cox v. operation.” its facts upon antecedent it draws because States, S. 292 U. United (1922). Reynolds S.U. Tranbarger, R. Co. Alton (1934); Chicago & 444-449

271 punishment acts an- preclude repeals were understood g., Chambers, States v. tedating repeal. e. United See, (1934); Den- F. R. Co.v. C. & S. Gulf, 223-224 217, 291 U. S. Tynen, (1912); 11Wall. States v. United 503, 506 224 U. S. nis, (1871); 440-441 429, 13 How. Crocker, Norris v. 93-95 88, Cty. Washington & v. Baltimore (1852); Maryland rel. ex (1845); States, Yeaton v. United 552 534, Co.,3 How. R. Ohio (1809). (repealing 1 U. S. C. 109 But see Cranch 5 rule). common-law applied category we have largest cases which

The retroactivity statutory against has involved presumption rights, property affecting mat- provisions contractual new prime impor- stability predictability are of ters which been limited to presumption however, has not, tance.26 Heong States, 112 v. United At issue Chew cases. such example, provision “Chinese was a 536 S.U. barring from reen- laborers Chinese Act” of 1882 Restriction prepared when tering a certificate without United States country. did not the statute they held that We exited this reentry had left the United States laborer who of a bar the promulgated. requirement was Jus- before the certification law in opinion that the for the observed Court tice Harlan’s accorded laborers had the 1882 enactment effect before the “uni- and invoked right certificate, reenter without against “giv[ing] accepted a retro- formly” rule statutes 26 Bank, Security 70, Industrial 469 U. S. g., United States v. e. See, Commissioner, 141, Claridge Apartments Co. v. (1982); 323 U. S. 79-82 Louis, Co., S. F. & T. R. States v. St. United (1944); R. Union Co. (1914); v. Henley, Holt v. (1926); Pacific Cases, Co., Twenty per Cent. 199; Laramie Stock Yards 231 U. Waterson, (1873); Carroll Sohn (1874); 17 Wall. Wall. Carroll, (1854). majority our great While the v. Lessee of 16 How. 276 antiretroactivity presumption have involved in relying upon decisions applied pre burdening private parties, we have tervening statutes monetary obligations only that fell on the sumption involving in cases new Co., Magnolia Petroleum S. 160 See United States government. States, v. United (1928); White 191 U. S. 546 in- previously are whereby rights vested operation, spective language so compelled so to do juriously affected, unless that such was room to doubt positive leave no as to and clear legislature.” Id., at 559. intention “congressional enactments in Bowen that statement Our ret- to have be construed rules will administrative and requires language result,” this their effect unless roactive long of cases.26 step line with this 208, was S., at 488 U. retroactivity in paradigmatic case of awas itself Bowen recoup, sought cost limit agency under to a federal hospi- paid to had been regulations 1984, funds issued id., 207; our search earlier, see rendered services tals for retroactivity authorizing was congressional intent for clear spanning approach in decisions taken with the consistent two centuries. retroactivity spe- statutory had against presumption legislative to view tended in which courts era force

cial rights circum- property contract and with interference supply century, legislation to has come spectly. In this circumspection ordering, legal has means dominant judgments. legislative greater way given deference Mining Co., Usery Turner Elkhorn v. See Building Blaisdell, S.U. Assn. v. & Loan Home 15-16; (1934). impedi- But the constitutional while 436-444 pros- modest, legislation are now retroactive civil ments to appropriate default rule. Because pectivity remains widely how intuitions about statutes held it accords with retroactivity against ordinarily presumption will operate, a expectations. public legislative generally with coincide Congress Requiring itself has intent assures clear potential affirmatively of retroac- unfairness considered the price acceptable that it is an tive determined States, White g., (1964); 376 U. e. Greene United also, v. Moore, States, United States v. United (1903); v. 191 U. S. 645 Roland, Gibson, (1854); Ladiga Murray (1878); 15 How. 2 How. requirement countervailing a Such pay benefits. policy responsibility Congress for fundamental

allocates temporal proper statutes, concerning reach of judgments predict- legislators giving virtue the additional and has legislate. against background which to rule able B against presumption long Although have embraced we recognized long just retroactivity, have statutory we “apply in many the law should situations, a court in that, Bradley, 416 U. decision,” its time it renders at the effect after the events though enacted that law was 711, even no conflict course, gave is, There rise to the suit. that against presumption retroac- principle a between unambiguous. question Chief tivity statute in when the opinion v. Schooner in United States Marshall’s Justice (1801), point. Because Peggy, this illustrates 1 Cranch was signed September the case treaty 30, 1800, while on unambiguously provided restora- appeal, for the pending on yet definitively property condemned,” captured “not tion original), en- (emphasis a decree we reversed in id., at 107 condemning vessel September a French 1800, 23, on tered application in American waters. Our had been seized our decision in Schooner at the time of of “the law in effect” language simply response Peggy of the statute. to the was Id., at 109. application specific legislative authorization,

Even absent unquestion- passed events in suit is after the of new statutes intervening ably proper many stat- in When the situations. propriety prospective relief, the ute authorizes or affects application provision Thus, in new is not retroactive. of the Tri-City Central Trades Coun- American Steel Foundries v. (1921), Clayton Act, that 20 of the cil, 257 we held appeal, governed pending the enacted the case was while injunctive against picketing. propriety In re- relief labor intervening manding statute, suit operates injunction futuro,” that “relief we observed right” in the decree no “vested plaintiff had that the g., also, e. 201. See S., at by the trial court. entered (1969); Printing Duplex Press 45, Beals, 396 U. v. Hall (1921). Deering, 254 U. S. Co. v. conferring intervening statutes regularly applied

We have lay when jurisdiction or not jurisdiction, whether ousting or was filed. suit when the underlying occurred conduct 112, 116-117 States, 343 U. S. v. United Thus, Bruner “consistent]” ordered an practice, we (1952),relying on our under jurisdictional statute because dismissed action re- subsequently (properly) was filed been it had Commons, 239 U. S. v. also pealed.27 Hallowell See (1916); 567,575 Osbornes, 9 Wall. Assessors 508-509 Co., Products Stone Andrus v. Charlestone Conversely, in that, because held we 607-608, 6n. 436 U. S. appeal pending on case was passed while a statute requirement for amount-in-controversy eliminated had. failed to respondent had the fact federal-question cases, controversy the commencement allege $10,000 States also United moment.” of no “now action was curiam); (1960) Stephens (per Alabama, (1899). Application 445, 478 Nation, U. S. 174 v. Cherokee away usually no substan- “takes rule jurisdictional of a new to hear that is changes simply the tribunal right but tive normally law Present S., at 508. Hallowell, 239 U. case.” jurisdictional statutes because governs situations such in rights or than to the rather power the court “speak to the Miami, Republic Nat. Bank parties,” obligations of the concurring). at 100 S., 506 U. (Thomas, J., 27 Bruner, noted: specifically we In a stat principle general not affect the rule does jurisdictional “This is re such construction effect unless retroactive given is not be ute United Compare necessary implication. by explicit language or quired Co., Smallwood (1926), 1, Louis, with F. R. 270 U. v. St. S. & T. States (1927).” n. Gallardo, 8. 343 U. 275 U. S. v. in suits rules often may applied Changes procedural concerns without their enactment raising arising Collett, in Ex parte For retroactivity. example, about 1404(a) S. C. governed we held that U. 55,71 U. S. to that statute’s of an action instituted prior the transfer reliance interests We noted the diminished enactment. Because rules of S., at 71.28 matters procedure. conduct, than rather secondary primary procedure regulate was instituted after the a new rule the fact that procedural not make application rise to the suit does conduct giving Carson, McBurney at trial retroactive. Cf. rule (1879).29 prohibit Facto Clause to strictly construed the Ex Post While we have increasing punishments after the creating statutes application of new application procedural changes even if fact, upheld intervening we have particular operated disadvantage new rule to a defendant’s of the Florida, (1977); See, 293-294 see g., Dobbert v. 432 U. S. e. case. Ohio, (1990); Beazell v. Youngblood, 497 U. S. 37 also Collins 29 course, procedural does not mean fact that a new rule Of the mere concerning filing of every A new rule applies pending that it case. complaint already had complaints govern an action in which the would regime, promulgation and the of a new properly been filed under the old trial. require appellate remand for a new rule of evidence would not an approving procedural rules reflect the Our orders amendments to federal ordinarily provisions of such applicability commonsense notion that the See, g., Amending posture case. e. Order depends particular on the (amendments (1990) Procedure, Criminal 495 U. S. 969 Federal Rules of just practicable”); Order applicable pending cases “insofar as (1982) (same); Procedure, 456 U. S. 1015 Amending Federal Rules of Civil (1975) Forms, 421 U. S. 1021 Amending Bankruptcy Rules and Order (amendments in the applicable pending “except to the extent that cases proceeding pend opinion particular of the court their in a then injustice”). Contrary ing not be feasible or would work to Justice would post, presumption restrict suggestion, we do not Scalia’s (Nei rights.” statutory retroactivity involving “vested against to cases 269, retroactivity, quoted supra, at so Story’s ther is Justice definition of restricted.) retroactivity suggest we concerns about have no Nor do application procedural to rules. upon Bradley principally Bd. relies v. School

Petitioner (1974), Housing Thorpe Richmond, S. 696 v. U. of (1969), support Authority Durham, in 393 U. S. 268 ordinary interpretive support argument rules that our her Thorpe, application In we that an of 102 to her case. held requiring housing authority give agency circular a local to opportunity respond evicting notice of reasons and proceeding applicable tenant was to an eviction commenced Thorpe regulation before the issued. shares much with both “prospective-relief” supra, “procedural” and cases. See Thorpe hearing pro- we noted in that new Thus, at 273-275. party’s obligations did not affect either cedures under the agreement housing authority peti- lease between the and the yet tioner, S., 279, and, 393 U. at because the tenant had “not significance housing we saw no fact vacated,” that the authority had “decided to evict her before the circular was Thorpe issued,” id., at 283. The Court viewed the new procedures impedi- eviction as “essential to remove a serious protection rights.” ment to the successful of constitutional (1976)(per Miller, Ibid.30 Cf. Youakim v. curiam) (citing Thorpe propriety applying new law to one). avoiding necessity deciding constitutionality . of old holding Bradley similarly compatible Our with the disfavoring line of decisions “retroactive” of stat- Bradley, In utes. the District Court had awarded attor- ney’s upon general equitable principles, fees and costs, parents prevailed seeking desegre- who had in an action gate public Virginia. schools of Richmond, While the

30 Thorpe is consistent principle, analogous with the to that at work in presumption the common-law repeals statutes, about of criminal government should grace private parties disadvantaged by accord an old rule when adopts it one. Cf. DeGurules generous new and more INS, (CA9 1987). 833 F. 2d Indeed, Thorpe 862-863 twice cited Chambers, United States 291 U. S. 217 which ordered dismissal prosecutions pending repealed. when the National Act Prohibition was Thorpe, id., 38; n. n. 40. Congress Appeals, en- of pending the before Court was case au- of § Amendments Education of the acted parties prevailing in the to award courts federal thorized attorney’s fee. reasonable desegregation cases a school provision did not new fee Appeals held that the of Court the before services rendered fees for the award authorize reversed. This Court of the amendments. date effective rely 718 to parties private could the We concluded that resting attorney’s our decision fees, support their claim at in effect the law principle a court is “on the doing result would unless so decision, its it renders the time legisla- statutory direction or injustice or there in manifest contrary.” at 711. S., history tive presump categorical language suggests a Although that we now application law, rules of new of all in favor tion pre Bradley alter the well-settled did not make it clear new class of statutes against of the sumption new genuinely effect. Like “retroactive” have would attorney’s provision Thorpe,,the fee hearing requirement in in we Bradley the cases which did not resemble issue statutory against presumption retroactiv invoked have are Attorney’s observed, we have ity. determinations, fee separa “uniquely of action” main cause to the “collateral proved at trial.” White to be of action ble from cause Security, Dept Employment Hampshire U. S. v. New (1982). Finney, also Hutto See 445, 451-452 enactment Moreover, even 695, n. (which authority the District Court courts had 718, federal exercised) equitable upon Bradley fees based to award had Bradley opinion it clear, made would principles. our As stronger equitable imagine attor case for an be difficult parents plaintiff ney’s in which the than a lawsuit fee award desegregating the costs of have bear would otherwise (noting public U. schools. their children’s compli brought plaintiffs school board “into had that the mandate”) (citing v. Board Brown its ance with constitutional (1954)). light prior Education, In availability of a fee and the likelihood that fees would award, pre-existing theories, be assessed under we concluded that simply impose “d[id] the new fee statute an additional or obligation” upon Bradley, unforeseeable the school board. 416 atS.,U. 721. approving application provision, Bradley

In of the new fee long applying did not take issue with the line of decisions presumption against retroactivity. opinion Our distin- guished, prior applied criticize, but did not cases that had antiretroactivity (citing id., canon. See at 720 Greene v. (1964); Claridge Apart- States, United 376 149, U. S. 160 Commissioner, ments Co. v. 323 141, U. S. 164 Co., Union R. Co. v. Laramie Stock Yards 231 U. S. Pacific (1913)). upon Bradley The authorities we relied support lend further to the conclusion that we did not intend displace presumption against applying the traditional stat- affecting rights, utes substantive liabilities, or duties to con- arising duct before their Kaiser, S., enactment. See 494 U. concurring). Bradley at 849-850 (Scalia, J., relied on Thorpe precedents and on other that are consistent with a presumption against statutory retroactivity, including deci- involving explicitly sions retroactive statutes, see S., 416 U. (citing, at 713, n. 17 alia, inter Smith, Freeborn v. 2 Wall. 160 (1865)),31 intervening judicial the retroactive (citing, see decisions, S., 416 U. at 713-714, 17 alia, n. inter (1935)),32 Patterson Alabama, v. 294 600, U. 607 statutes 31 Bradley, In Peggy cited Schooner we for the “current principle, law” recognized but we that the law at issue in Peggy Schooner had expressly- application. S., called for retroactive 712, See 416 U. at (describing n. 16 Peggy Schooner holding that Court obligated “apply was the terms convention,” which had applied recited that it yet to all vessels not condemned”) “definitively convention). (emphasis in 32 Bradley decided, At the time was it was point no means a truism to out that rules judicial in intervening announced normally decisions should applied to a case pending when the intervening decision came down. In our judicial doctrine on retroactivity involved a substantial meas discretion, ure of guided by equitable Bradley resembling standards

279 alia, inter 17 S., 416 n. (citing, U. altering jurisdiction, Alabama, States v. (1960)), United repeal 362 U. S. United n. statute, (citing a criminal U. Chambers, (1934)). States v. in none Moreover, Thorpe Bradley that have relied upon of our decisions cast doubt on the traditional presumption against we have of a statute.33 “retrospective” application truly Huson, Oil v. 404 U. S. injustice” test itself. See Chevron Co. “manifest (1965). Walker, (1971); 97,106-107 v. 381 U. S. While Linkletter say judicial a new rule in a it accurate in 1974 announced was only presumptively applicable pending cases, we have was decision retroactivity. Harper Virginia firm established a rule of since Taxation, (1993); Kentucky, S. 314 Dept. 509 U. S. 86 Griffith Raab, 656, 661-662, See, Treasury Employees v. Von g., e. (1989) (considering intervening regulations injunctive action and n. Amendment) agency’s drug testing policy (citing under Fourth challenging Co., (1987) 656, Thorpe); (applying v. Lukens Steel 482 U. S. Goodman judicial arising in to case rule announced decision before the decision Bradley for the “usual rule that federal citing ... cases should be decided existing decision”); in accordance with the law at the time of the Saint (1987) 604, (in College Al-Khazraji, involving Francis v. 481 U. S. case rule”); retroactivity judicial decision, citing Thorpe of for same “usual S., 694, Finney, (relying “general practice” Hutto v. 437 U. n. 23 Bradley uphold attorney’s award of fees under passed statute after the Youakim, pending); services had been rendered but while case was still curiam) (per (remanding at 237 for reconsideration of constitu injunctive light tional claim for in intervening regulations) relief of state (1976) (citing Ash, Thorpe)-, Cort v. (stating Bradley U. application warranted intervening transferring of statute to administra agency jurisdiction injunctive relief); tive Hamling over claim for States, (1974) 87, 101-102 United 418 U. S. (reviewing obscenity conviction light Court) subsequent of (citing First Amendment of decision this Bradley), (1974) Shultz, 21,49, Bankers Assn. v. 416 U. S. n. 21 California (in injunction against action for banking statute, enforcement of disclosure citing Thorpe proposition for that Court should consider constitutional question in light regulations suit); issued after commencement of Dif Baptist Miami, Inc., v. Central Church 404 U. S. fenderfer (1972) (citing Thorpe in holding intervening repeal of a ex state tax emption for property certain church “inappropriate” petitioner’s rendered request injunctive for Clause); relief based on the Establishment Citizens Park, (1971) to Preserve Volpe, Overton Inc. (refusing implicates enacted after federal statute a a case

When whether determine task is to suit, the court’s first events proper expressly prescribed statute’s Congress has Congress is no need course, there so, has done If reach. stat- judicial When, however, the rules. default resort to express the court must deter- command, such contains no ute effect, would have retroactive the new statute whether mine rights party possessed impair when it would e., whether i. liability past party’s conduct, or increase a acted, he already respect transactions impose duties with new retroactively, operate our completed. would If the statute govern presumption it does not teaches traditional favoring congressional intent such result. absent clear V given guiding instruc- the absence of whether, ask We now § Rights Congress, of 1991 is 102 of the Act from Civil tions govern arising type provision cases that should supra, 260-261, and n. As we observed its enactment. provi- special think that the diverse is no reason to all there uniformly purposes. the Act must be treated such sions of pro- contrary, the instruction that the we understand To upon mean that to “take effect enactment” to visions are light provision of the Act in courts should evaluate each concerning ordinary judicial principles of new pending preenactment conduct. rules to cases readily according provisions may Two of 102 classified 102(c)(1) right principles. jury to these trial set out plainly procedural change is a of the sort that would ordi- narily govern effective date. If trials conducted after its § right jury in Title 102 did no more than introduce a trial Thorpe required by agency findings to remand to under for administrative regulation already adequate new for because administrative record was Beals, (1969) (in review); Hall judicial injunc- for action statute, citing Thorpe authority tive relief from state election for con- statute). sidering intervening amendment of cases presumably provision would cases, the VII under- regardless when the of 21,1991, November after tried 102(c) makes However, because occurred.34 lying conduct party complaining seeks “[i]f only a jury available trial a option jury damages,” trial punitive compensatory or damages provisions. attached with the or fall must stand 102(b)(1) line. clearly side the other on is Section plaintiff damages punitive if the authorizes subsection That discriminatory prac- “engaged ain the defendant that shows reckless with discriminatory practices malice or with or tice aggrieved rights federally protected of an to the indifference “punitive” or “exem- given very labels The individual.” support them, that damages, the rationales plary” as well as key of crimi- they characteristics share demonstrate damages punitive imposition of Retroactive nal sanctions. question. Turner See constitutional raise serious would approve (Court “hesitate would at 17 Elkhorn, 428 U. theory liability any de- of imposition retrospective of blameworthiness”); Braisted, 363 Veau De ... terrence (1960) (“The post is law an ex mark facto designated punishment fairly imposition be of what can Spencer acts”). A. v. Vuitton past Louis also 1985) (retroactive (CA2 Handbags Corp., 765 F. 2d provisions of damages Trade- punitive treble potential present Counterfeiting “would Act mark ques- entertained problem”). Before we post ex facto a statute with confronted have would tion, we preenactment con- damages punitive explicitly authorized ex- no such Rights contains of 1991 Act The Civil duct. plicit command. recovery 102(a)(1) authorizing provision of easily not It does damages classified.

compensatory not of a however, promulgation recognized, Appeals Court As the had of cases that retrial ordinarily not warrant jury trial rule would new customary 29, supra. Thus, See n. judge. to a been tried previously case. jury trial this for a support remand practice would as occurred; when it was lawful conduct

make unlawful § only supra, 252-255, reaches discrim- noted, we have by already prohibited Title VII. inatory Concerns conduct by the fact that muted are further of fair notice a lack about (although many not this cases inwas discrimination such one) monetary liability subject in the form of already seriously anyone com- contend that the backpay. could Nor damages provisions of a “retributive” or smack pensatory legislative purpose. 102reflects suspect Section Con- other more com- gress’ of discrimination victims desire to afford established more than a plete of rules redress for violations Rights generation ago Act of 1964. At least in the Civil damages provisions, compensatory respect then, to its with objections category to retroactive in which is not in a greatest grounds have their force. of fairness on damages provision compensatory Nonetheless, the new applied “retrospectively” operate it were to con if would occurring certain 21, 1991. Unlike before November duct damages quintes compensatory are of relief, other forms damages may looking. Compensatory seritially backward wrongdoers than to make victims intended less to sanction they that affects the liabili but do so a mechanism whole, “compensate” by They distribut ties of do not defendants. ing public by requiring particular coffers, funds from the but employers pay they The introduction harms caused. right compensatory damages type legal is also the change private parties’ plann impact that would have an damages ing.35 In this to which the new case, event and amici surprise up of unfair petitioner suggest, As concerns employment setting expectations in the case of intentional are attenuated discrimination, generation. more than a How which has been unlawful for ever, entirely damages provi if absent fairness concerns would not be enactment, preceding sions of 102 were to to events its facts management, apprised Respondent of this case illustrate. USI’s when co-worker, timely wrongful petitioner's took action to rem conduct of edy problem. liability no imposed The law then in effect on an em ployer discriminatory who corrected before the work conditions conditions respond discriminatory of conduct provision relates is provision applied that here, agent Williams; if John ents’ legal conduct. important burden to that new an would attach § the kind remedy conclude, is damages in we The new antedating its en to events provision not that does of congressional intent. of clear in the absence actment prior relief, no law afforded one, in like this In cases creating and its § action, cause of newa be seen as 102 can pronounced. rights especially Section impact parties’ is on monetary persons like right relief on to a new 102 confers environment a hostile work petitioner of were victims who pros- constructively discharged, the novel but were employers. Title liability Because damages pect for their of backpay recovery in some previously of authorized VII 102(a) damages compensatory are under and because cases, provision any backpay the new recoverable, to in addition damages increasing of the amount statute a also resembles Even preestablished of action. cause under available applied provision in if would, however, the view, under undoubtedly im- arising date, the Act’s effective before cases disability” respect pose employers “new found liable a Gospel, Propagation Society past to events. See liability, party’s of a The extent Cas., at 767. 22 F. important legal criminal, is an as civil context well discharge. As result in the victim’s constructive so severe as to became superior respondeat theory on a against respondents sessing damages ques Even when the conduct surprise. thus entail an element would inherent illegal, degree of unfairness is morally reprehensible or tion oc on conduct imposes additional burdens based the law whenever (Ex Weaver, Post Facto Clause past. in the 450 U. at 28-30 curred Cf. restraint, not turn on “an governmental and does fair notice and assures damages provisions of right punishment”). less The new individual’s preven expected give managers an added incentive to take 102 can be discriminatory conduct subordinates measures to ward off tive before pre occurs, by applying regime purpose is not served it but that conduct. enactment in Bradley Neither cannot ignored.36

consequence had in which Congress since before or case nor in itself, any in- substantially a statute read we have spoken, not clearly to apply of a party private monetary liability creasing Win- enactment. the statute’s before occurring conduct (stat- (1913) 296,301 Co., R. Northern Pacific free death for wrongful cause action new federal creating ute in absence enactment arising to case inapplicable Fidel- States United “clear implication”); words” “explicit Wells rel. Struthers ex States v. United Co. Guaranty &ity 36 abol or changing statutes held that consistently have courts state actions wrongful-death in available damages of amount on the limits ishing aris intent, actions to apply legislative of clear not, the absence in should State, 273 A. 2d v. 451 Dempsey See, g., e. enactment. their before ing found . has . issue . has considered 1982) which court (R. (“Every I. in damage of the elements or the amount as to change subsequent or procedural than rather to be substantive statute wrongful-death Klei prospectively”); applied be must change such remedial, any thus and 372, 437, 444, P. 2d 581 Co., Kan. R. 224 v. Missouri-Kansas-Texas brink authority,” of weight “great with the accord (1978) in (holding, 378 in recoverable maximum statutory increase, repeal or decrease “an in a apply should not thus and is not retroactive” actions death wrongful Brad enactment) original); in (emphasis the statute’s arising case (1974) (refusing 369, 371 2d 436, N. W. Knutson, 432, 215 2d 62 Wis. ley v. misconduct death to wrongful damages cap in increase apply to damage[s] limita increases date; “statutory before effective occurring not remedial mere rights in substantive actually changes are tions Buder, 515 R. Co. v. Francisco Louis-San rel. St. ex State changes”); liability (statute wrongful-death 1974) removing (Mo. 409, 411 2dW. conduct; “an act preenactment apply not to construed limitation they the time at ascribed were effects legal certain transaction, which to a subject be reasons, thereafter not, cogent without should transpired, parties of and liabilities rights alter which effects set of different (1973) 723, 725 701, A. 2d Proulx, 698, 313 N. H. 113 thereto”); Mihoy v. clearly would of accident date after the limit (“To increased apply an ex of absence In the retrospectively. liability the defendant’s enlarge retro intended legislature that the cannot conclude we provision, press ' 774, 2d 534 S. W. McGuffy, v. also Fann application”). spective 1967). (Minn. Buchl, N. W. 2d 150 1975); Muckier (Ky. 19n.

285 re- statute (1908) (construing 314-315 Co., 209 from damages recover rights subcontractors’ stricting “clear, of absence as prospective contractors prime favoring Congress from language imperative” strong retroactivity).37 and amici force- true, as petitioner frequently

It will statute of newa that retroactive here, argue fully consider- That fully.38 more its purpose vindicate would “pro statutes, like new new “remedial” said sometimes haveWe g., e. See, pending apply to cases. ones, presumptively should cedural” 1404(a) is a remedial (“Clearly, Collett, n. 38 S., U. at parte Ex (Ex Beazell, actions”); 269 U. pending applicable provision remedies and control of “legislative not limit Facto Clause does Post substance”). While affect matters do procedure modes swpra, remedies, 273- see kinds for some true holds that statement intro a statute relief), not classified we have prospective (discussing that should change sort “remedial” liability as the damages ducing “Retroactive modification” cases. pending presumptively mischief potential less “normally much may harbo[r] damages remedies Hastings v. Earth liability,” principles of in the changes than retroactive cert, denied, S. 905 (CADC), Corp., F. 2d Satellite significant. still nevertheless potential but that County Gwinnett in Franklin that our decision argues Petitioner to her of 102 Schools, (1992), supports application U. S. 60 Public in- have been legal rights “where that principle the Relying on case. right to sue such general for a provides vaded, statute and a federal remedy good the make any to may available invasion, use federal courts ” Hood, (1946)), we S. id., 327 U. v. Bell (quoting wrong,’ the Education Title IX action of right of under Franklin that the held argues damages. Petitioner a claim of included Amendments because, damages obtain if she cannot position her that Franklin supports violation despite an adjudged § remediless to will be left pursuant she How- workplace of discrimination. to free right under Title VII of her we to which is not a Rights Act of 1964 statute ever, Civil Title VII of the reme- favor of all available presumption apply “traditional the would right to “general create a did not U. 72. That statute dies.” 503 specified of “circum- discrimination, a set but instead employment sue” for (1992). Burke, States United See remedies.” scribed allow for dam- VII did amendment, Title scheme the 1991 the Until presumption the rebut to sufficient is not however, ation, pursue to crafted retroactivity. are seldom Statutes against necessary their enactment compromises single goal, and a would those that than adopting other require means may legislator who goal. A effectively pursue main the most reasonably oppose might prospective statute supported a there is Indeed, the same statute. of retroactive ex- the 1990 version’s of the omission that to believe reason passage of in the retroactivity provisions a factor was press provision plainly sort of not the 102is Section bill. retroactively a operate because be understood that must reading it render ineffective. contrary would retroactivity statutory against presumption general policy and upon sound considerations founded widely ex- long shared held practice, accords with legislation. We are operation of pectations about usual no have found we applies Because to 102. it satisfied that the Civil congressional intent that clear evidence arising its apply to cases Rights of 1991 should Act judgment of the Court that we conclude enactment, Appeals be affirmed. must ordered.

It is so Kennedy whom Justice with Scalia, Justice judgments.* concurring join, Justice Thomas h—I judicial agree there exists with Court I of course legislative great antiquity, enactment presumption, (cid:127) retroactively ab- rights affecting does not substantive contrary. generally Kaiser See sent statement to clear specifically Congress has remedies ages. We not free fashion are Workers, Airlines, Transport Inc. Northwest chosen not extend. Inc., Roadway Express, 92- No. to Rivers opinion applies also *[This 938, post, p. 298.] 827,840 Bonjorno, 494 U. S. Corp. v. Chemical &

Aluminum will- however, is (1990) concurring). Court, J., (Scalia, by the text supplied, not statement ing that clear to let par- legislators who by individual question, but law of the legislators in and even law, the of ticipated the enactment a similar failed to enact tried and Congress which an earlier floor debate only the combs For the Court law. Rights Civil issue, the Reports statute Committee (1991 Act), 1071, see 105 Stat. 102-166, L. Pub. Act of history of procedural reviews the 262-268, but also ante, at Congress to attempt by a unsuccessful, earlier, an different Rights Act Civil legislation, the similar enact 255-257, 268. ante, at Cong., see 1st Sess. 101st into a rule statement” effectively the “clear converts This that under- even rule—and legislative intent” “discernible rejection of the floor The Court’s the difference. states “frankly they are because Senators of certain statements gen- reflecting any read as plausibly be partisan” and “cannot any exercise like other 262, reads ante, at agreement,” eral undisciplined historicizing,1 legislative soft science in the If it is requirement. any “clear by statement” distinctive enough to surely seeking, it is not arewe statement” “clear reflecting as “plausibly be read can the insist that statement clearly reflect must statement agreement”; the general history do that, can legislative agreement. No general has been itself. That the statute only the text but course, retroactivity rule from meaning “clear statement” the Heth, 3 g., States e. United See, times. the earliest J.) (“Unless, (Johnson, therefore, the (1806) 399, Cranch construction, of a different imperious admit are too words to a future restrie[t] of the law should] words [the Court bemay unique. effort Court’s acknowledge, I must respect, one In judgment in its irony supporting as well novelty There Dan- citing Senator are unreliable Act floor statements statements floor effect that Act to the on the 1991 floor statement forth’s ante, 262-263, n. 15. unreliable. 1991 Act are on the 288 J.) (“[I]t [is] (Cushing, unreasonable,

operation”); at id., would give construction, my opinion, the law express retrospective it contained unless effect, have such Murray 421,423 Gibson, 15 How. purpose”); v. to that words “required (1854)(statutes retroactively operate unless not do impli- necessary by and unavoidable by express command (1922)(“[A] Doyle, stat- cation”); 258 S.U. Shwab operation retrospective its unless given a not be ute should swpra, Bonjorno, imperative”); also see make that words (collecting applying the (concurring opinion) cases 842-844 test). clear rule to be deem that I do not clear statement changed history legislative regarding by dicta the Court’s present case. operates expressly it ret- state that 1991Act does The specification of roactively, petitioner its contends that but 109(c) §§ and sections, prospective-only for two 402(b), provisions retroactive. implies are that its other 402(a) § argues states petitioner since precisely, that More [the specifically provided, “[e]xcept as otherwise 109(c) §§ upon Act] enactment”; and since effect shall take 402(b) oper- provide specifically shall that those sections and upon only prospectively; en- “shall take effect the term ate 402(a) effect. The mean retroactive must actment” argument response is that and subtle to this refined short subtlety state- for clear are no substitute refinement presumed upon “[S]hall enactment” is take effect ment. upon prospective enactment,” have effect mean “shall by any nega- strong presumption be overcome is too 402(b).2 109(c) §§ derived from tive inference Co., Pennsylvania v. Union Gas 491 Ü. S. suggests that in Petitioner implication language sufficient negative found the the Court subjection of congressional satisfy requirement the “clear statement” Scanlon, Hospital State suit, see Atascadero private the States to express inclusion However, in case it was “person[s],” see 42 U. S. C. potentially in the liable of States definition liability in §9601(21), States’ certain as reinforced the limitation of circumstances, 9601(20)(D), plain to find a that led Court limited see plain liability. (noting the “cascade of statement of See 491 U.

HHHH petition- evaluation of opinion begins with an s The Court its retro- the statute dictates the text of argument that er’s argument rejection of that application. Court’s active upon long insists ought, as it so as it as forceful cannot assump- and constant clarity the ancient the of compromising compara- attributing by a prospective, legislation is tion that favor of Bradley presumption in nouveau pedigree to the ble See Brad- of decision. at the time in effect applying the law Richmond, 416 S. 711-716 U. ley Bd. v. School repeat here, need not elsewhere and demonstrated As I have Authority Durham, 393 Housing Thorpe v. Bradley and and invented precedents simply our misread S.U. Bon- generally rule. utterly and erroneous new an concurring). J., supra, jorno, (Scalia, Bradley-Thorpe pedigree of the embellishing the Besides way reaffirm its out of goes the Court presumption, by gained over- nothing to be I see holdings cases. of those should the indefensible think do I neither ruling them, but really inde- Thorpe, least, is And needlessly be defended. “be- required that issue there regulation at fensible. housing authori- local proceeding instituting eviction an fore reasons tenant... inform the . should ties . . (emphasis 272, and n. supra, at Thorpe, . . .” . eviction eviction added). requirement on an imposed that The Court regulation is- 18 months proceeding instituted was plainly retroactive was That sued. question; presents a closer Bradley in wrong. The result litiga- ongoing provision attorney’s fees application of an retroactive, how- If it were arguably not retroactive. is tion (as suggests) the Court surely be saved it would ever, attorney’s theory under of another the existence ante, at discretionarily see awarded, might have been fees 277-278. id., at 30 (Scalia, J., concurring part liability); supporting

language” here. nothing comparable There dissenting part).

I II disagreement with the significant, most My last, and meaning of retro- pertains to the analysis case of this Court’s crafted the definition adopts its own activity. The Court involving provision of the New Story in a case by Justice “retrospective” prohibited Hampshire Constitution impairs away or only if it “takes is retroactive laws: a law existing new laws, or creates a acquired rights under vested disability, a new duty, imposes new or attaches obligation, already past.” or considerations respect to transactions Wheeler, 22 Gospel F. Cas. Propagation Society J.). 1814) (CC (No. (Story, 13,156) NH rights” focus that expect this “vested might from One (as op- procedure changes in rules all would hold Court substance) retroactively. And matters of posed to formu- from the Court’s conclusion the same draw one would provision at- being the new “whether test as lation completed before consequences to events legal new taches directly Post our Ex from test borrowed its enactment” —a Florida, 482 g., Miller v. see, e. jurisprudence, Clause Facto (1987), adopted a substantive- have where we (“[N]o post ex violation id., at 433 see procedural line, facto procedural”). In merely change is in the law if the occurs faithfully applying the from shrinks however, the Court fact, seemingly defends first It that it has announced. test rights” the- a “vested distinction procedural-substantive (“Because regu- procedure rules of ante, at 275 ory entails, a conduct, fact that primary secondary than rather late giving conduct after the rule was instituted procedural new trial application the rule at does make the suit rise to retroactive”).' ill- acknowledges broad and a it soon But undefined) “[T]he exception: mere (indeed, utterly defined ap- mean that it procedural does not is new fact a rule 29. Ante, at n. Under every pending case.” plies to concerning filing com- exception, new rule this “a complaint govern in which an action plaints would not promulga- “the already properly ibid., and filed,” been had ordinarily jury not warrant rule would a trial tion of new judge,” a previously tried to been that had of cases retrial how either of these to see It is hard ante, 281, n. 34. any preserves application retroactive allow refusals to any given right in right.” vested one has a “‘No “vested parte procedure.’” Collett, 337 U. S. Ex mode of quoting Hahlo, Crane exceptions seemingly “vested to the Court’s random (substance-vs.-procedure) I made, must be rights” criterion fundamentally wrong. It suggest, that criterion is because rights” upsetting may “vested substantive well be that Hamp- interpretation proper of New touchstone was the interpretation prohibition, it is for constitutional shire’s Clauses, Ex Post Facto see Constitution’s the United States anything to do I doubt that it has But ante, n. 28. question clear before us here: absent mundane the more with presumed temporal contrary, is the to the what statement question, purposes of that For statute? change presumed be retro- procedural more should no think, I issue, The critical a substantive one. active than rights,” governs or “vested not whether the rule affects procedure, is the relevant ac- but rather what substance tivity regulates. oth- Absent clear statement that the rule activity only occurs such relevant erwise, after Most statutes are the statute is covered. effective date of regulate primary will not be conduct, and hence meant to involving applied their conduct that occurred before in trials purpose have a different effective date. But other statutes retroactivity A a relevant event. and therefore different testimony, governing expert exam- of new rule evidence ple, regulating of and the event trial, is aimed at the conduct retroactivity of the relevant to of the rule is introduction testimony. though procedural rule, it is a it would un- Even testimony already questionably applied taken— not example, reversing appeal, the new a case on because applied which antedated a trial been at had not rule statute. approach rights” inadequacy “vested of the Court’s

The change apparent the incidents of in one of when a becomes opinion The classifies entitlements. alters substantive trial procedural permits provisions attorney’s “retro- fees (in application in- to cases the sense of active” volving preenactment

conduct). ante, It at 277-278. person holding liable for attor- a me, however, seems holding right” ney’s no less than affects a “substantive fees damages, compensatory punitive which the him liable for attorney’s affecting right. If fees vested treats as a Court involving that antedated conduct can be awarded a suit purpose fee-authorizing it is because the statute, encourage suit conduct, but fee award is not to affect rights that the retroactiv- for the vindication of certain —so encouragement ity filing is suit, whereafter event is the purpose longer perhaps because the no needed. Or retroactivity event fee award is to suit—so that the facilitate whereafter facilitation can no suit, is the termination of longer be achieved. rights” square

The “vested test does not with our consist- practice giving effect to statutes that alter ent immediate jurisdiction. g., States, See, court’s e. Bruner v. United (1952); 112, 116-117, and n. 8 Hallowell v. Com- (1916); parte mons, McCardle, 7 Wall. 239 U. S. 506 cf. Ex (1869); Ritchie, Insurance Co.v. 5 Wall. 544-545 (1867); King London, see also v. Justices the Peace (K. 1764). Eng. Rep. Burr. ex- B. Court plains aspect retroactivity jurisprudence by this of our not- ing jurisdictional that “a new rule” will often not involve “ retroactivity Story’s away in Justice sense it because ‘takes right simply changes no substantive but tribunal ” quoting supra, Ante, to hear the Hallowell, case.’ may surely always. 508. That be true sometimes, but jurisdictional deny litigant A rule can a forum for his claim 84, entirely, of Stat. Act see Portal-to-Portal §§ may leave him with an 251-262, or amended, 29 U. S. C. deny for some collateral rea- will forum that relief alternate bar). (e. jurisdiction Our g., a of limitations statute son purpose that the explained, the fact think, I are cases per- jurisdiction eliminating is to conferring provisions power the rele- judicial that exercise mit or forbid the —so at which retroactivity purposes is the moment vant event applying a Thus, sought to be exercised. power is judicial past action to undo statute jurisdiction-eliminating prevent retroactively; applying it to but applying it would be applying is takes effect the statute any judicial after action prospectively. it forms eliminating previously available

Finally, statutes challenge the Court’s provide another prospective relief injunc- requested traditionally withhold approach. Courts if law, even by then-current are authorized tions at the suit commenced at the time they were authorized enjoined was first sought to be primary conduct time the v. Tri- Foundries g., American Steel e. engaged See, in. (1921);Duplex Council, 257 U. S. City Trades Central (1921). The 443,464 Peering, 254 U. S. Printing v. Press Co. possible is nothing it with whether to do reason, which has “[o]bvi- relief, right prospective a vested to have only ibid. operates ously, futuró,” of relief this form future prospective relief is to affect purpose of Since judging remedy past, the time relevant than rather ordered.3 very which is retroactivity it is the moment its pre- why explains event also retroactivity on the relevant A focus a statute by interpreting not violated retroactivity is against sumption secondary transactions —so-called past effect legal the future to alter 204,219- Hospital, Univ. Georgetown see Bowen retroactivity, and the (1988) J., McNulty, Corporations concurring) (citing (¿CALIA, (1967)); Cox cf. Laws, L. 55 Calif. Rev. 58-60 Conflict Intertemporal Hart, applies gambling new ban A ante, 269-270, n. construction, see under casinos existing casinos and to those investments. disability” past a new it “attaches though even easy always determine, it will maintain that

I do assessing for purpose, relevant event statute’s from the example, suggested, a statu- retroactivity. As I have its presents attorney’s case. a difficult tory fees provision for in both it is Ordinarily, answer is clear—as however, the p. post, Roadway Express, Inc., 298. Landgraf Rivers v. and provisions any of the I do not think Court, Unlike They easily are all ante, at 281. classified,” is “not- at issue primary conduct, the occur- regulation directed at primary is the relevant event. conduct rence of Blackmun, dissenting. Justice “apparent eagerness ten- Perhaps to resolve from an Bonjorno, Corp. v. Aluminum & Chemical see Kaiser sion,” (1990), Bradley Bd. between v. School 827, 837 (1974), Georgetown Bowen v. Richmond, 416 U. S. (1988), rejects the Hospital, Court U. S. Univ. reading,” logical of the Civil Kaiser, S., 494 U. “most (Act), resorts to a Rights 1991, 105 Act of Stat. retroactivity. approach against seems to presumption This principle fidelity pay that the to the settled insufficient me to language “starting point interpretation ‘is the of a statute ” quoting Kaiser, Con- itself,’ of the statute Sylvania, Safety Inc., sumer Product Comm’n v. GTE (1980), against presumption and extends the 102, legislation beyond reach and its historical retroactive purpose. straightforward analysis Act indicates of the

A textual § damages provision compensatory and its at- that 102’s appeal pending right jury cases to a trial tendant 402(a) begins analysis with This on the date of enactment. specifically “Except as otherwise Act, 105 Stat. 1099: provided, made this Act amendments this Act and the retroactivity activity gambling, not the primary relevant event is the primary activity constructing casinos. rule the “settled upon Under enactment.” effect take

shall fashion possible, in such be construed if must, a statute Nor- v. operative effect,” States every United word has (1992),citing States United Village, Inc., 503 U. S. dic §402(a)’s quali- 528, 538-539 Menasche, 348 U. S. provided,” specifically “[e]xcept fying as otherwise clause, pol- surplusage or an “insurance as mere dismissed cannot be interpretation. judicial Cf. Gersman icy” against future 1992). (CADC 2d Group Assn., Inc., 975 F. Health sections logically to the Act’s two refers it most Instead, apply to provid[ing]” statute does not “specifically that the (a) 402(b), 105 Stat. pending enactment: on the date of cases apply to provides, did not effect, in that the Act which 1099, Packing Atonio, then-pending Co.v. case of Wards Cove (b) 109(c), § (1989), which 1078, 105 and Stat. 490 U. S. employment protections of overseas the Act’s states that occurring respect apply to conduct with “shall not Self-evidently, if the of this Act.” date of the enactment 402(b) §§ pending inapplicable cases, to Act were entire 109(c) Kungys “entirely v. United redundant.” would be (1988) (plurality opinion). Thus, States, 759, 109(c) 402(b) §§ implication do not that, is while the clear provisions including pending 102— apply cases, to other — legislative clearly expressed intention “‘Absent do.1 regarded language contrary, [this] as conclu- must... ” quoting Product 835, at Consumer Kaiser, S., 494 U. sive.’ Sylvania, Safety at 108. Inc., GTE Comm’n v. featuring history legislative a welter of con- Act, of the frankly flicting partisan” ante, statements, floor and “some contrary report, no such committee evinces 262, but no 1 is, course, proposition particular “a stat- “unexceptional” It an implicitly [applica- retroactive may ute in some circumstances authorize (1988) Georgetown Hospital, Univ. Bowen tion].” added). (concurring opinion) (emphasis Thus, I see no reason dismiss as “un- intent.2

legislative ante, statute, natural of the the most reading likely,” is also some other “possi- to embrace reading order ante, at 260. ble,” did not answer of the statute if the

Even language under our it would be appropriate retroactivity question, The well- cases.3 §102 to pending precedents retroactive legislation, against established presumption settled grounded serves expectations, which protect g., Smead, The e. See, Rule vested rights. a respect of Ju- A Basic Principle Retroactive Legislation: Against (1936) (retroactivity 20 Minn. L. Rev. risprudence, of the 1991 to consider the Appeals Court of Virtually every history provides legislative that the concluded cases has pending Act to Assn., Inc., 975 See, Health Group e. Gersman g., guidance. no reliable (CADC Marine Service 1992); Commercial v. American Mozee F. 2d 886 1992). (CA7 Co., F. 2d 929 the ve- retroactivity language of strong in the Act of The absence to final judg- the new law applied would have legislation, toed 1990 Sess., cases, Cong., 101st 2d see H. R. to pending ments as well as 3,1990) 15(b)(3) (provid- (Aug. Rec. H6829 Cong. at 136 reprinted of the enactment of to the date prior entered judgment final “any ing have become any parties thereto rights Act as to which this requires” if part justice or in vacated whole shall be fixed and vested... with intent Congress’ instructive of is not permits), the Constitution rejected lan- also Congress Significantly, to cases alone. pending respect 1990 or 1991 Act. the reach of the beyond claims put pending that guage Act) (“The (Michel-LaFalce amend- to 1990 id., amendment at H6747 See arising to claims with apply respect Act shall not by made this ments (Michel-LaFalce id., Act”); H6768 enactment of this the date of (Sen. 12,1991) Mar. (daily S3023 ed. 137 Rec. rejected); Cong. amendment retroactivity Act’s the 1990 which included of S. Dole’s introduction (introduction Michel defeat of id., at 13265-13266 provision); 1). R. for H. substitute right and the damages compensatory are issue in this case Directly at employer an requiring little unfairness While there is to a trial. jury discrimination, or to have acts of victims of intentional the compensate to for damages imposition punitive the damages, determine those jury a one not question, a more difficult represents conduct preenactment opinion. I no express one on which in this case and squarely addressed against a construction developed an “inhibition doctrine presumption rights”). This vested violate would . . . which §102, legislation, such as applied remedial to not be need previously any was proscribe conduct not does 222, 238 Sampeyreac States, Pet. legal. v. United See remedy, (“Almost (1833) providing affects every new law, existing time upon at the of action operates causes Corp., 2d Hastings 628 F. passed”); Earth Satellite is law (“Modification adjusts (CADC) remedy merely 85, 93 liability in instances enforcement, of method extent, or known”), liability previously was possibility of (1980); cert, Kent, Commentaries J. denied, (Chancellor objection to Kent’s Law *455-*456 American on rights” changing “not under- “affecting is vested lawa may retro- be of a apply statutes, which to remedial stood impair they contracts, or provided spective do not nature, rights”). vested absolute disturb employer generation had an last has within

At no time permit harassment; right engage in or to sexual vested wrong.’” thing right to do as a vested is no such “‘there also 2 N. Smith, Wall. Freeborn p. Statutory 41.04, 349 Singer, Construction Sutherland 1986) (4th do (procedural and remedial statutes rev. ed. pend- presumed away rights are take vested not actions). expands ing the remedies the Act 102 of Section but does discrimination, for acts of intentional available scope employee’s right freé from basic to be alter duty. legal corresponding employer’s discrimination responsi- holding employer nothing unjust an about There illegal injuries been conduct that has caused ble years. almost respectfully

Accordingly, I dissent.

Case Details

Case Name: Landgraf v. USI Film Products

Court Name: Supreme Court of the United States

Date Published: Apr 26, 1994

Citation: 511 U.S. 244

Docket Number: 92-757

Court Abbreviation: SCOTUS