Lead Opinion
delivered the opinion óf the Court.
The Civil Rights Act of 1991 (1991 Act or Act) creates a right to recover compensatory and punitive damages for certain violations of Title VII of the Civil Rights Act of 1964. See Rev. Stat. § 1977A(a), 42 U. S. C. § 1981a(a) (1988 ed., Supp. IV), as added by § 102 of the 1991 Act, Pub. L. 102-166, 105 Stat. 1072. The Act further provides that any party may demand a trial by jury if such damages are sought.
I
From September 4, 1984, through January 17, 1986, petitioner Barbara Landgraf was employed in the USI Film
Petitioner filed a timely charge with the Equal Employment Opportunity Commission (EEOC or Commission). The Commission determined that petitioner had likely been the victim of sexual harassment creating a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq., but concluded that her employer had adequately remedied the violation. Accordingly, the Commission dismissed the charge and issued a notice of right to sue.
On July 21,1989, petitioner commenced this action against USI, its corporate owner, and that company’s successor in interest.
“Although the harassment was serious enough to establish that a hostile work environment existed for Landgraf, it was not so severe that a reasonable person would have felt compelled to resign. This is particularly true in light of the fact that at the time Landgraf resigned from her job, USI had taken steps ... to eliminate the hostile working environment arising from the sexual harassment. Landgraf voluntarily resignedfrom her employment with USI for reasons unrelated to the sexual harassment in question.” App. to Pet. for Cert. B-3-4.
Because the court found that petitioner’s employment was not terminated in violation of Title VII, she was not entitled to equitable relief, and because Title VII did not then authorize any other form of relief, the court dismissed her complaint.
On November 21,1991, while petitioner’s appeal was pending, the President signed into law the Civil Rights Act of 1991. The Court of Appeals rejected petitioner’s argument that her case should be remanded for a jury trial on damages pursuant to the 1991 Act. Its decision not to remand rested on the premise that “a court must ‘apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.’ Bradley [v. School Bd. of Richmond,
We granted certiorari and set the case for argument with Rivers v. Roadway Express, Inc., post, p. 298. Our order limited argument to the question whether § 102 of the 1991
II
Petitioner’s primary submission is that the text of the 1991 Act requires that it be applied to cases pending on its enactment. Her argument, if accepted, would make the entire Act (with two narrow exceptions) applicable to conduct that occurred, and to cases that were filed, before the Act’s effective date. Although only § 102 is at issue in this case, we preface our analysis with a brief description of the scope of the 1991 Act.
The 1991 Act is in large part a response to a series of decisions of this Court interpreting the Civil Rights Acts of 1866 and 1964. Section 3(4), 105 Stat. 1071, note following 42 U. S. C. § 1981, expressly identifies as one of the Act’s purposes “to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination.” That section, as well as a specific finding in §2(2), identifies Wards Cove Packing Co. v. Atonio,
Other sections of the Act were obviously drafted with “recent decisions of the Supreme Court” in mind. Thus, § 101 (which is at issue in Rivers, post, p. 298) amended the 1866 Civil Rights Act’s prohibition of racial discrimination in the “mak[ing] and enforce[ment] [of] contracts,” 42 U. S. C. § 1981 (1988 ed., Supp. IV), in response to Patterson v. McLean Credit Union,
A number of important provisions in the Act, however, were not responses to Supreme Court decisions. For example, §106 enacts a new prohibition against adjusting test
Entitled “Damages in Cases of Intentional Discrimination,” § 102 provides in relevant part:
“(a) Right of Recovery.—
“(1) Civil Rights. — In an action brought by a complaining party under section 706 or 717 of the Civil Rights Act of 1964 (42 U. S. C. 2000e-5) against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) prohibited under section 703, 704, or 717 of the Act (42 U. S. C. 2000e-2 or 2000e-3), and provided that the complaining party cannot recover under section 1977 of the Revised Statutes (42 U. S. C. 1981), the complaining party may recover compensatory and punitive damages ... in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent.
“(c) Jury Trial. — If a complaining party seeks compensatory or punitive damages under this section—
“(1) any party may demand a trial by jury.”
Before the enactment of the 1991 Act, Title VII afforded only “equitable” remedies. The primary form of monetary relief available was backpay.
Section 102 significantly expands the monetary relief potentially available to plaintiffs who would have been entitled to backpay under prior law. Before 1991, for example, monetary relief for a discriminatorily discharged employee generally included “only an amount equal to the wages the employee would have earned from the date of discharge to the date of reinstatement, along with lost fringe benefits such as vacation pay and pension benefits.” United States v. Burke,
Section 102 also allows monetary relief for some forms of workplace discrimination that would not previously have justified any relief under Title VII. As this case illustrates, even if unlawful discrimination was proved, under prior law a Title VII plaintiff could not recover monetary relief unless the discrimination was also found to have some concrete effect on the plaintiff’s employment status, such as a denied promotion, a differential in compensation, or termination. See Burke,
In 1990, a comprehensive civil rights bill passed both Houses of Congress. Although similar to the 1991 Act in many other respects, the 1990 bill differed in that it contained language expressly calling for application of many of its provisions, including the section providing for damages in cases of intentional employment discrimination, to cases arising before its (expected) enactment.
The absence of comparable language in the 1991 Act cannot realistically be attributed to oversight or to unawareness of the retroactivity issue. Rather, it seems likely that one of the compromises that made it possible to enact the 1991 version was an agreement not to include the kind of explicit retroactivity command found in the 1990 bill.
The omission of the elaborate retroactivity provision of the 1990 bill — which was by no means the only source of political controversy over that legislation — is not dispositive because it does not tell us precisely where the compromise was struck in the 1991 Act. The Legislature might, for example, have settled in 1991 on a less expansive form of retroactivity that, unlike the 1990 bill, did not reach cases already finally decided. See n. 8, supra. A decision to reach only cases still pending might explain Congress’ failure to provide in the
Ill
Petitioner’s textual argument relies on three provisions of the 1991 Act: §§ 402(a), 402(b), and 109(c). Section 402(a), the only provision of the Act that speaks directly to the question before us, states:
“Except as otherwise specifically provided, this Act and the amendments made by this Act shall take effect upon enactment.”
That language does not, by itself, resolve the question before us. A statement that a statute will become effective on a certain date does not even arguably suggest that it has any application to conduct that occurred at an earlier date.
The parties agree that § 402(b) was intended to exempt a single disparate impact lawsuit against the Wards Cove Packing Company. Section 402(b) provides:
“(b) Certain Disparate Impact Cases. — Notwithstanding any other provision of this Act, nothing in this Act shall apply to any disparate impact case for which a complaint was filed before March 1, 1975, and for which an initial decision was rendered after October 30, 1983.”
Section 109(c), part of the section extending Title VII to overseas employers, states:
“(c) Application of Amendments — The amendments made by this section shall not apply with respect to conduct occurring before the date of the enactment of this Act.”
According to petitioner, these two subsections are the “other provisions” contemplated in the first clause of § 402(a), and together create a strong negative inference that all sections of the Act not specifically declared prospective apply to pending cases that arose before November 21, 1991.
Before addressing the particulars of petitioner’s argument, we observe that she places extraordinary weight on two comparatively minor and narrow provisions in a long and complex statute. Applying the entire Act to cases arising from preenactment conduct would have important consequences, including the possibility that trials completed before its en
Petitioner, however, invokes the canon that a court should give effect to every provision of a statute and thus avoid redundancy among different provisions. See, e. g., Mackey v. Lanier Collection Agency & Service, Inc.,
Petitioner emphasizes that § 402(a) begins: “Except as otherwise specifically provided.” A scan of the statute for other “specific provisions” concerning effective dates reveals that §§ 402(b) and 109(c) are the most likely candidates. Since those provisions decree prospectivity, and since § 402(a) tells us that the specific provisions are exceptions, § 402(b) should be considered as prescribing a general rule of retroactivity. Petitioner’s argument has some force, but we find it most unlikely that Congress intended the introductory clause to carry the critically important meaning petitioner assigns it. Had Congress wished § 402(a) to have such a de
It is entirely possible that Congress inserted the “otherwise specifically provided” language not because it understood the “takes effect” clause to establish a rule of retroactivity to which only two “other specific provisions” would be exceptions, but instead to assure that any specific timing provisions in the Act would prevail over the general “take effect on enactment” command. The drafters of a complicated piece of legislation containing more than 50 separate sections may well have inserted the “except as otherwise provided” language merely to avoid the risk of an inadvertent conflict in the statute.
We are also unpersuaded by petitioner’s argument that both §§ 402(b) and 109(c) merely duplicate the “take effect upon enactment” command of § 402(a) unless all other provisions, including the damages provisions of § 102, apply to pending cases. That argument depends on the assumption that all those other provisions must be treated uniformly for purposes of their application to pending cases based on preenactment conduct. That thesis, however, is by no
Turning to the text of § 402(b), it seems unlikely that the introductory phrase (“Notwithstanding any other provision of this Act”) was meant to refer to the immediately preceding subsection. Since petitioner does not contend that any other provision speaks to the general effective date issue, the logic of her argument requires us to interpret that phrase to mean nothing more than “Notwithstanding § 402(a).” Petitioner’s textual argument assumes that the drafters selected the indefinite word “otherwise” in § 402(a) to identify two
The relevant legislative history of the 1991 Act reinforces our conclusion that §§ 402(a), 109(c), and 402(b) cannot bear the weight petitioner places upon them. The 1991 bill as originally introduced in the House contained explicit retroactivity provisions similar to those found in the 1990 bill.
Although the passage of the 1990 bill may indicate that a majority of the 1991 Congress also favored retroactive application, even the will of the majority does not become law unless it follows the path charted in Article I, §7, cl. 2, of the Constitution. See INS v. Chadha,
>
It is not uncommon to find “apparent tension ’ between different canons of statutory construction. As Professor Llewellyn famously illustrated, many of the traditional canons have equal opposites.
We have previously noted the “apparent tension” between those expressions. See Kaiser Aluminum & Chemical Corp. v. Bonjorno,
We begin by noting that there is no tension between the holdings in Bradley and Bowen, both of which were unanimous decisions. Relying on another unanimous decision— Thorpe v. Housing Authority of Durham,
A
As Justice Scalia has demonstrated, the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.
It is therefore not surprising that the antiretroactivity principle finds expression in several provisions of our Constitution. The Ex Post Facto Clause flatly prohibits retroactive application of penal legislation.
These provisions demonstrate that retroactive statutes raise particular concerns. The Legislature’s unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals. As Justice Marshall observed in his opinion for the Court in Weaver v. Graham,
The Constitution’s restrictions, of course, are of limited scope; Absent a violation of one of those specific provisions, the potential unfairness of retroactive civil legislation is not a sufficient reason for a court to fail to give a statute its intended scope.
While statutory retroactivity has long been disfavored, deciding when a statute operates “retroactively” is not always a simple or mechanical task. Sitting on Circuit, Justice Story offered an influential definition in Society for Propagation of the Gospel v. Wheeler,
“every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective . . . Ibid. (citing Calder v. Bull, 3 Dali. 386 (1798), and Dash v. Van Kleeck, 1 Johns.* 477 (N. Y. 1811)).
Though the formulas have varied, similar functional conceptions of legislative “retroactivity” have found voice in this Court’s decisions and elsewhere.
A statute does not operate “retrospectively” merely because it is applied in a case arising from conduct antedating the statute's enactment, see Republic Nat. Bank of Miami v. United States,
Since the early days of this Court, we have declined to give retroactive effect to statutes burdening private rights unless Congress had made clear its intent. Thus, in United States v. Heth,
The largest category of cases in which we have applied the presumption against statutory retroactivity has involved new provisions affecting contractual or property rights, matters in which predictability and stability are of prime importance.
Our statement in Bowen that “congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result,”
The presumption against statutory retroactivity had special force in the era in which courts tended to view legislative interference with property and contract rights circumspectly. In this century, legislation has come to supply the dominant means of legal ordering, and circumspection has given way to greater deference to legislative judgments. See Usery v. Turner Elkhorn Mining Co.,
B
Although we have long embraced a presumption against statutory retroactivity, for just as long we have recognized that, in many situations, a court should “apply the law in effect at the time it renders its decision,” Bradley,
Even absent specific legislative authorization, application of new statutes passed after the events in suit is unquestionably proper in many situations. When the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive. Thus, in American Steel Foundries v. Tri-City Central Trades Council,
We have regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed. Thus, in Bruner v. United States,
Our holding in Bradley is similarly compatible with the line of decisions disfavoring “retroactive” application of statutes. In Bradley, the District Court had awarded attorney’s fees and costs, upon general equitable principles, to parents who had prevailed in an action seeking to desegregate the public schools of Richmond, Virginia. While the
Although that language suggests a categorical presumption in favor of application of all new rules of law, we now make it clear that Bradley did not alter the well-settled presumption against application of the class of new statutes that would have genuinely “retroactive” effect. Like the new hearing requirement in Thorpe,, the attorney’s fee provision at issue in Bradley did not resemble the cases in which we have invoked the presumption against statutory retroactivity. Attorney’s fee determinations, we have observed, are “collateral to the main cause of action” and “uniquely separable from the cause of action to be proved at trial.” White v. New Hampshire Dept of Employment Security,
In approving application of the new fee provision, Bradley did not take issue with the long line of decisions applying the presumption against retroactivity. Our opinion distinguished, but did not criticize, prior cases that had applied the antiretroactivity canon. See id., at 720 (citing Greene v. United States,
V
We now ask whether, given the absence of guiding instructions from Congress, § 102 of the Civil Rights Act of 1991 is the type of provision that should govern cases arising before its enactment. As we observed supra, at 260-261, and n. 12, there is no special reason to think that all the diverse provisions of the Act must be treated uniformly for such purposes. To the contrary, we understand the instruction that the provisions are to “take effect upon enactment” to mean that courts should evaluate each provision of the Act in light of ordinary judicial principles concerning the application of new rules to pending cases and preenactment conduct.
Two provisions of § 102 may be readily classified according to these principles. The jury trial right set out in § 102(c)(1) is plainly a procedural change of the sort that would ordinarily govern in trials conducted after its effective date. If § 102 did no more than introduce a right to jury trial in Title
Section 102(b)(1) is clearly on the other side of the line. That subsection authorizes punitive damages if the plaintiff shows that the defendant “engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” The very labels given “punitive” or “exemplary” damages, as well as the rationales that support them, demonstrate that they share key characteristics of criminal sanctions. Retroactive imposition of punitive damages would raise a serious constitutional question. See Turner Elkhorn,
The provision of § 102(a)(1) authorizing the recovery of compensatory damages is not easily classified. It does not
Nonetheless, the new compensatory damages provision would operate “retrospectively” if it were applied to conduct occurring before November 21, 1991. Unlike certain other forms of relief, compensatory damages are quintesseritially backward looking. Compensatory damages may be intended less to sanction wrongdoers than to make victims whole, but they do so by a mechanism that affects the liabilities of defendants. They do not “compensate” by distributing funds from the public coffers, but by requiring particular employers to pay for harms they caused. The introduction of a right to compensatory damages is also the type of legal change that would have an impact on private parties’ planning.
In cases like this one, in which prior law afforded no relief, § 102 can be seen as creating a new cause of action, and its impact on parties’ rights is especially pronounced. Section 102 confers a new right to monetary relief on persons like petitioner who were victims of a hostile work environment but were not constructively discharged, and the novel prospect of damages liability for their employers. Because Title VII previously authorized recovery of backpay in some cases, and because compensatory damages under § 102(a) are in addition to any backpay recoverable, the new provision also resembles a statute increasing the amount of damages available under a preestablished cause of action. Even under that view, however, the provision would, if applied in cases arising before the Act’s effective date, undoubtedly impose on employers found liable a “new disability” in respect to past events. See Society for Propagation of the Gospel,
It will frequently be true, as petitioner and amici forcefully argue here, that retroactive application of a new statute would vindicate its purpose more fully.
The presumption against statutory retroactivity is founded upon sound considerations of general policy and practice, and accords with long held and widely shared expectations about the usual operation of legislation. We are satisfied that it applies to § 102. Because we have found no clear evidence of congressional intent that § 102 of the Civil Rights Act of 1991 should apply to cases arising before its enactment, we conclude that the judgment of the Court of Appeals must be affirmed.
It is so ordered.
Notes
See Rev. Stat. §1977A(c), 42 U. S. C. §1981a(c) (1988 ed., Supp. IV), as added by § 102 of the 1991 Act. For simplicity, and in conformity with the practice of the parties, we will refer to the damages and jury trial provisions as §§ 102(a) and (c), respectively.
Respondent Quantum Chemical Corporation owned the USI plant when petitioner worked there. Respondent Bonar Packaging, Inc., subsequently purchased the operation.
Section 2(2) finds that the Wards Cove decision “has weakened the scope and effectiveness of Federal civil rights protections,” and §3(2) expresses Congress’ intent “to codify” certain concepts enunciated in “Supreme Court decisions prior to Wards Cove Packing Co. v. Atonio,
We have not decided whether a plaintiff seeking backpay under Title VII is entitled to a jury trial. See, e. g., Lytle v. Household Mfg., Inc.,
“If the court finds that the respondent has intentionally engaged in... an unlawful employment practice charged in the complaint, the court may . . . order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay ... or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.” Civil Rights Act of 1964, § 706(g), as amended, 42 U. S. C. § 2000e-6(g) (1988 ed., Supp. IV).
Section 102(b)(3) imposes limits, varying with the size of the employer, on the amount of compensatory and punitive damages that may be awarded to an individual plaintiff. Thus, the sum of such damages awarded a plaintiff may not exceed $50,000 for employers with between 14 and 100 employees; $100,000 for employers with between 101 and 200 employees; $200,000 for employers with between 200 and 500 employees; and $300,000 for employers with more than 500 employees.
See Harris v. Forklift Systems, Inc.,
The relevant section of the Civil Rights Act of 1990, S. 2104, 101st Cong., 1st Sess. (1990), provided:
"Sec. 15. Application of Amendments and Transition Rules.
“(a) Application of Amendments. — The amendments made by—
“(1) section 4 shall apply to all proceedings pending on or commenced after June 5, 1989 [the date of Wards Cove Packing Co. v. Atonio,490 U. S. 642 ];
“(2) section 5 shall apply to all proceedings pending on or commenced after May 1,1989 [the date of Price Waterhouse v. Hopkins,490 U. S. 228 ];
“(3) section 6 shall apply to all proceedings pending on or commenced after June 12,1989 [the date of Martin v. Wilks,490 U. S. 755 ];
"(4) sections 7(a)(1), 7(a)(3) and 7(a)(4), 7(b), 8 [providing for compensatory and punitive damages for intentional discrimination], 9, 10, and 11 shall apply to all proceedings pending on or commenced after the date of enactment of this Act;
“(5) section 7(a)(2) shall apply to all proceedings pending on or after June 12, 1989 [the date of Lorance v. AT&T Technologies, Inc.,490 U. S. 900 ]; and
“(6) section 12 shall apply to all proceedings pending on or commenced after June 15, 1989 [the date of Patterson v. McLean Credit Union,491 U. S. 164 ].
“(b) Transition Rules —
“(1) In General. — Any orders entered by a court between the effective dates described in subsection (a) and the date of enactment of this Act that are inconsistent with the amendments made by sections 4, 5, 7(a)(2), or 12, shall be vacated if, not later than 1 year after such date of enactment, a request for such relief is made.
“(3) Final Judgments. — Pursuant to paragraphs (1) and (2), any final judgment entered prior to the date of the enactment of this Act as to which the rights of any of the parties thereto have become fixed andvested, where the time for seeking further judicial review of such judgment has otherwise expired pursuant to title 28 of the United States Code, the Federal Rules of Civil Procedure, and the Federal Rules of Appellate Procedure, shall be vacated in whole or in part if justice requires pursuant to rule 60(b)(6) of the Federal Rules of Civil Procedure or other appropriate authority, and consistent with the constitutional requirements of due process of law.”
See President’s Message to the Senate Returning Without Approval the Civil Rights Act of 1990, 26 Weekly Comp. Pres. Doc. 1632-1634 (Oct. 22,1990), reprinted in 136 Cong. Rec. S16418, S16419 (Oct. 22,1990). The President’s veto message referred to the bill’s “retroactivity” only briefly; the Attorney General’s Memorandum to which the President referred was no more expansive, and may be read to refer only to the bill’s special provision for reopening final judgments, see n. 8, supra, rather than its provisions covering pending cases. See Memorandum of the Attorney General to the President (Oct. 22, 1990) in App. to Brief for Petitioner A-13 (“And Section 15 unfairly applies the changes in the law made by S. 2104 to cases already decided") (emphasis added).
The history of prior amendments to Title VII suggests that the “effective-upon-enactment” formula would have been an especially inapt way to reach pending cases. When it amended Title VII in the Equal Employment Opportunity Act of 1972, Congress explicitly provided:
“The amendments made by this Act to section 706 of the Civil Rights Act of 1964 shall be applicable with respect to charges pending with the Commission on the date of enactment of this Act and all charges filed thereafter.” Pub. L. 92-261, § 14,86 Stat. 113. In contrast, in amending Title VII to bar discrimination on the basis of pregnancy in 1978, Congress provided:
“Except as provided in subsection (b), the amendment made by this Act shall be effective on the date of enactment.” §2(a), 92 Stat. 2076.
The only Courts of Appeals to consider whether the 1978 amendments applied to pending cases concluded that they did not. See Schwabenbauer v. Board of Ed. of School Dist. of Olean,
There is some evidence that the drafters of the 1991 Act did not devote particular attention to the interplay of the Act’s “effective date” provisions. Section 110, which directs the EEOC to establish a “Technical Assistance Training Institute” to assist'employers in complying with antidiscrimination laws and regulations, contains a subsection providing that it “shall take effect on the date of the enactment of this Act.” § 110(b). That provision and § 402(a) are unavoidably redundant.
This point also diminishes the force of petitioner’s “expressio unius” argument. Once one abandons the unsupported assumption that Congress expected that all of the Act’s provisions would be treated alike, and takes account of uncertainty about the applicable default rule, §§ 109(c) and 402(b) do not carry the negative implication petitioner draws from them. We do not read either provision as doing anything more than definitively rejecting retroactivity with respect to the specific matters covered by its plain language.
See, e. g., H. R. 1, 102d Cong., 1st Sess. § 113 (1991), reprinted in 137 Cong. Rec. H3924-H3925 (Jan. 3,1991). The prospectivity proviso to the section extending Title VII to overseas employers was first added to legislation that generally was to apply to pending cases. See H. R. 1, 102d Cong., 1st Sess. § 119(c) (1991), reprinted in 137 Cong. Rec. H3925-H3926 (June 5, 1991). Thus, at the time its language was introduced, the provision that became § 109(c) was surely not redundant.
On the other hand, two proposals that would have provided explicitly for prospectivity also foundered. See 137 Cong. Rec. S3021, S3023 (Mar. 12,1991); id., at 13255,13265-13266.
For example, in an “interpretive memorandum” introduced on behalf of seven Republican sponsors of S. 1745, the bill that became the 1991 Act, Senator Danforth stated that “[t]he bill provides that, unless otherwise specified, the provisions of this legislation shall take effect upon enactment and shall not apply retroactively.” Id., at 29047 (emphasis added). Senator Kennedy responded that it “will be up to the 'courts to determine the extent to which the bill will apply to cases and claims that were pending on the date of enactment.” Ibid, (citing Bradley v. School Bd. of Richmond,
“[A] court would be well advised to take with a large grain of salt floor debate and statements placed in the Congressional Record which purport to create an interpretation for the legislation that is before us.” 137 Cong. Rec. S15325 (Oct. 29,1991).)
See Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes are to be Construed, 3 Vand. L. Rev. 395 (1950). Llewellyn’s article identified the apparent conflict between the canon that
“[a] statute imposing a new penalty or forfeiture, or a new liability or disability, or creating a new right of action will not be construed as having a retroactive effect”
and the countervailing rule that
“[rjemedial statutes are to be liberally construed and if a retroactive interpretation will promote the ends of justice, they should receive such construction.” Id., at 402 (citations omitted).
See Kaiser Aluminum & Chemical Corp. v. Bonjorno,
See General Motors Corp. v. Romein,
Article I contains two Ex Post Facto Clauses, one directed to Congress (§9, cl. 3), the other to the States (§10, cl. 1). We have construed the Clauses as applicable only to penal legislation. See Calder v. Bull, 3 Dali. 386, 390-391 (1798) (opinion of Chase, J.).
See Richmond v. J. A Croson Co.,
James Madison argued that retroactive legislation also offered special opportunities for the powerful to obtain special and improper legislative benefits. According to Madison, “[bjills of attainder, ex post facto laws, and laws impairing the obligation of contracts” were “contrary to the first principles of .the social compact, and to every principle of sound legislation,” in part because such measures invited the “influential” to “speculate] on public measures,” to the detriment of the “more industrious and less informed part of the community.” The Federalist No. 44, p. 301 (J. Cooke ed. 1961). See Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. 692,693 (1960) (a retroactive statute “may be passed with an exact knowledge of who will benefit from it”).
In some cases, however, the interest in avoiding the adjudication of constitutional questions will counsel against a retroactive application. For if a challenged statute is to be given retroactive effect, the regulatory interest that supports prospective application will not necessarily also sustain its application to past events. See Pension Benefit Guaranty Corporation v. R. A Gray & Co.,
Article 23 of the New Hampshire Bill of Rights provides: “Retrospective laws are highly injurious, oppressive and unjust. No such laws, therefore, should be made, either for the decision of civil causes or the punishment of offenses.” At issue in the Society case was a new statute that reversed a common-law rule by allowing certain wrongful possessors of land, upon being ejected by the rightful owner, to obtain compensation for improvements made on the land. Justice Story held that the new statute impaired the owner’s rights and thus could not, consistently with Article 23, be applied to require compensation for improvements made before the statute’s enactment. See
See, e. g., Miller v. Florida,
Even uncontroversially prospective statutes may unsettle expectations and impose burdens on past conduct: a new property tax or zoning regulation may upset the reasonable expectations that prompted those affected to acquire property; a new law banning gambling harms the person who had begun to construct a casino before the law’s enactment or
See, e. g., United States v. Security Industrial Bank,
See also, e. g., Greene v. United States, 376 U. S. 149, 160 (1964); White v. United States,
In Bruner, we specifically noted:
“This jurisdictional rule does not affect the general principle that a statute is not to be given retroactive effect unless such construction is required by explicit language or by necessary implication. Compare United States v. St. Louis, S. F. & T. R. Co.,270 U. S. 1 , 3 (1926), with Smallwood v. Gallardo,275 U. S. 56 , 61 (1927).”343 U. S., at 117, n. 8 .
While we have strictly construed the Ex Post Facto Clause to prohibit application of new statutes creating or increasing punishments after the fact, we have upheld intervening procedural changes even if application of the new rule operated to a defendant’s disadvantage in the particular case. See, e. g., Dobbert v. Florida,
Of course, the mere fact that a new rule is procedural does not mean that it applies to every pending case. A new rule concerning the filing of complaints would not govern an action in which the complaint had already been properly filed under the old regime, and the promulgation of a new rule of evidence would not require an appellate remand for a new trial. Our orders approving amendments to federal procedural rules reflect the commonsense notion that the applicability of such provisions ordinarily depends on the posture of the particular case. See, e. g., Order Amending Federal Rules of Criminal Procedure,
Thorpe is consistent with the principle, analogous to that at work in the common-law presumption about repeals of criminal statutes, that the government should accord grace to private parties disadvantaged by an old rule when it adopts a new and more generous one. Cf. DeGurules v. INS,
In Bradley, we cited Schooner Peggy for the “current law” principle, but we recognized that the law at issue in Schooner Peggy had expressly-called for retroactive application. See
At the time Bradley was decided, it was by no means a truism to point out that rules announced in intervening judicial decisions should normally be applied to a case pending when the intervening decision came down. In 1974, our doctrine on judicial retroactivity involved a substantial measure of discretion, guided by equitable standards resembling the Bradley
See, e. g., Treasury Employees v. Von Raab,
As the Court of Appeals recognized, however, the promulgation of a new jury trial rule would ordinarily not warrant retrial of cases that had previously been tried to a judge. See n. 29, supra. Thus, customary practice would not support remand for a jury trial in this case.
As petitioner and amici suggest, concerns of unfair surprise and upsetting expectations are attenuated in the case of intentional employment discrimination, which has been unlawful for more than a generation. However, fairness concerns would not be entirely absent if the damages provisions of § 102 were to apply to events preceding its enactment, as the facts of this case illustrate. Respondent USI’s management, when apprised of the wrongful conduct of petitioner's co-worker, took timely action to remedy the problem. The law then in effect imposed no liability on an employer who corrected discriminatory work conditions before the conditions
The state courts have consistently held that statutes changing or abolishing limits on the amount of damages available in wrongful-death actions should not, in the absence of clear legislative intent, apply to actions arising before their enactment. See, e. g., Dempsey v. State,
We have sometimes said that new “remedial” statutes, like new “procedural” ones, should presumptively apply to pending cases. See, e. g., Ex parte Collett,
Petitioner argues that our decision in Franklin v. Gwinnett County Public Schools,
[This opinion applies also to Rivers v. Roadway Express, Inc., No. 92-938, post, p. 298.]
Concurrence Opinion
concurring in the judgments.
h — I
I of course agree with the Court that there exists a judicial presumption, of great antiquity, that a legislative enactment • affecting substantive rights does not apply retroactively absent clear statement to the contrary. See generally Kaiser
This effectively converts the “clear statement” rule into a “discernible legislative intent” rule — and even that understates the difference. The Court’s rejection of the floor statements of certain Senators because they are “frankly partisan” and “cannot plausibly be read as reflecting any general agreement,” ante, at 262, reads like any other exercise in the soft science of legislative historicizing,
The 1991 Act does not expressly state that it operates retroactively, but petitioner contends that its specification of prospective-only application for two sections, §§ 109(c) and 402(b), implies that its other provisions are retroactive. More precisely, petitioner argues that since § 402(a) states that “[e]xcept as otherwise specifically provided, [the 1991 Act] shall take effect upon enactment”; and since §§ 109(c) and 402(b) specifically provide that those sections shall operate only prospectively; the term “shall take effect upon enactment” in § 402(a) must mean retroactive effect. The short response to this refined and subtle argument is that refinement and subtlety are no substitute for clear statement. “[S]hall take effect upon enactment” is presumed to mean “shall have prospective effect upon enactment,” and that presumption is too strong to be overcome by any negative inference derived from §§ 109(c) and 402(b).
The Court s opinion begins with an evaluation of petitioner’s argument that the text of the statute dictates its retroactive application. The Court’s rejection of that argument cannot be as forceful as it ought, so long as it insists upon compromising the clarity of the ancient and constant assumption that legislation is prospective, by attributing a comparable pedigree to the nouveau Bradley presumption in favor of applying the law in effect at the time of decision. See Bradley v. School Bd. of Richmond,
Besides embellishing the pedigree of the Bradley-Thorpe presumption, the Court goes out of its way to reaffirm the holdings of those cases. I see nothing to be gained by overruling them, but neither do I think the indefensible should needlessly be defended. And Thorpe, at least, is really indefensible. The regulation at issue there required that “before instituting an eviction proceeding local housing authorities . . . should inform the tenant... of the reasons for the eviction . . . .” Thorpe, supra, at 272, and n. 8 (emphasis added). The Court imposed that requirement on an eviction proceeding instituted 18 months before the regulation issued. That application was plainly retroactive and was wrong. The result in Bradley presents a closer question; application of an attorney’s fees provision to ongoing litigation is arguably not retroactive. If it were retroactive, however, it would surely not be saved (as the Court suggests) by the existence of another theory under which attorney’s fees might have been discretionarily awarded, see ante, at 277-278.
My last, and most significant, disagreement with the Court’s analysis of this case pertains to the meaning of retro-activity. The Court adopts as its own the definition crafted by Justice Story in a case involving a provision of the New Hampshire Constitution that prohibited “retrospective” laws: a law is retroactive only if it “takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.” Society for Propagation of the Gospel v. Wheeler,
One might expect from this “vested rights” focus that the Court would hold all changes in rules of procedure (as opposed to matters of substance) to apply retroactively. And one would draw the same conclusion from the Court’s formulation of the test as being “whether the new provision attaches new legal consequences to events completed before its enactment” — a test borrowed directly from our Ex Post Facto Clause jurisprudence, see, e. g., Miller v. Florida,
The seemingly random exceptions to the Court’s “vested rights” (substance-vs.-procedure) criterion must be made, I suggest, because that criterion is fundamentally wrong. It may well be that the upsetting of “vested substantive rights” was the proper touchstone for interpretation of New Hampshire’s constitutional prohibition, as it is for interpretation of the United States Constitution’s Ex Post Facto Clauses, see ante, at 275, n. 28. But I doubt that it has anything to do with the more mundane question before us here: absent clear statement to the contrary, what is the presumed temporal application of a statute? For purposes of that question, a procedural change should no more be presumed to be retroactive than a substantive one. The critical issue, I think, is not whether the rule affects “vested rights,” or governs substance or procedure, but rather what is the relevant activity that the rule regulates. Absent clear statement otherwise, only such relevant activity which occurs after the effective date of the statute is covered. Most statutes are meant to regulate primary conduct, and hence will not be applied in trials involving conduct that occurred before their effective date. But other statutes have a different purpose and therefore a different relevant retroactivity event. A new rule of evidence governing expert testimony, for example, is aimed at regulating the conduct of trial, and the event relevant to retroactivity of the rule is introduction of the testimony. Even though it is a procedural rule, it would unquestionably not be applied to testimony already taken— reversing a case on appeal, for example, because the new
The inadequacy of the Court’s “vested rights” approach becomes apparent when a change in one of the incidents of trial alters substantive entitlements. The opinion classifies attorney’s fees provisions as procedural and permits “retroactive” application (in the sense of application to cases involving preenactment conduct). See ante, at 277-278. It seems to me, however, that holding a person liable for attorney’s fees affects a “substantive right” no less than holding him liable for compensatory or punitive damages, which the Court treats as affecting a vested right. If attorney’s fees can be awarded in a suit involving conduct that antedated the fee-authorizing statute, it is because the purpose of the fee award is not to affect that conduct, but to encourage suit for the vindication of certain rights — so that the retroactivity event is the filing of suit, whereafter encouragement is no longer needed. Or perhaps because the purpose of the fee award is to facilitate suit — so that the retroactivity event is the termination of suit, whereafter facilitation can no longer be achieved.
The “vested rights” test does not square with our consistent practice of giving immediate effect to statutes that alter a court’s jurisdiction. See, e. g., Bruner v. United States,
Finally, statutes eliminating previously available forms of prospective relief provide another challenge to the Court’s approach. Courts traditionally withhold requested injunctions that are not authorized by then-current law, even if they were authorized at the time suit commenced and at the time the primary conduct sought to be enjoined was first engaged in. See, e. g., American Steel Foundries v. TriCity Central Trades Council,
In one respect, I must acknowledge, the Court’s effort may be unique. There is novelty as well as irony in its supporting the judgment that the floor statements on the 1991 Act are unreliable by citing Senator Dan-forth’s floor statement on the 1991 Act to the effect that floor statements on the 1991 Act are unreliable. See ante, at 262-263, n. 15.
Petitioner suggests that in Pennsylvania v. Union Gas Co., 491 Ü. S. 1 (1989), the Court found the negative implication of language sufficient to satisfy the “clear statement” requirement for congressional subjection of the States to private suit, see Atascadero State Hospital v. Scanlon,
A focus on the relevant retroactivity event also explains why the presumption against retroactivity is not violated by interpreting a statute to alter the future legal effect of past transactions — so-called secondary retroactivity, see Bowen v. Georgetown Univ. Hospital,
Directly at issue in this case are compensatory damages and the right to a jury trial. While there is little unfairness in requiring an employer to compensate the victims of intentional acts of discrimination, or to have a jury determine those damages, the imposition of punitive damages for preenactment conduct represents a more difficult question, one not squarely addressed in this case and one on which I express no opinion.
Dissenting Opinion
dissenting.
Perhaps from an eagerness to resolve the “apparent tension,” see Kaiser Aluminum & Chemical Corp. v. Bonjorno,
A straightforward textual analysis of the Act indicates that § 102’s provision of compensatory damages and its attendant right to a jury trial apply to cases pending on appeal on the date of enactment. This analysis begins with § 402(a) of the Act, 105 Stat. 1099: “Except as otherwise specifically provided, this Act and the amendments made by this Act
Even if the language of the statute did not answer the retroactivity question, it would be appropriate under our precedents to apply §102 to pending cases.
At no time within the last generation has an employer had a vested right to engage in or to permit sexual harassment; “‘there is no such thing as a vested right to do wrong.’” Freeborn v. Smith,
Accordingly, I respectfully dissent.
It is, of course, an “unexceptional” proposition that “a particular statute may in some circumstances implicitly authorize retroactive [application].” Bowen v. Georgetown Univ. Hospital,
Virtually every Court of Appeals to consider the application of the 1991 Act to pending cases has concluded that the legislative history provides no reliable guidance. See, e. g., Gersman v. Group Health Assn., Inc.,
The absence in the Act of the strong retroactivity language of the vetoed 1990 legislation, which would have applied the new law to final judgments as well as to pending cases, see H. R. 4000, 101st Cong., 2d Sess., § 15(b)(3) (1990), reprinted at 136 Cong. Rec. H6829 (Aug. 3,1990) (providing that “any final judgment entered prior to the date of the enactment of this Act as to which the rights of any of the parties thereto have become fixed and vested... shall be vacated in whole or in part if justice requires” and the Constitution permits), is not instructive of Congress’ intent with respect to pending cases alone. Significantly, Congress also rejected language that put pending claims beyond the reach of the 1990 or 1991 Act. See id., at H6747 (Michel-LaFalce amendment to 1990 Act) (“The amendments made by this Act shall not apply with respect to claims arising before the date of enactment of this Act”); id., at H6768 (Michel-LaFalce amendment rejected); 137 Cong. Rec. S3023 (daily ed. Mar. 12,1991) (Sen. Dole’s introduction of S. 611, which included the 1990 Act’s retroactivity provision); id., at 13255, 13265-13266 (introduction and defeat of Michel substitute for H. R. 1).