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VAN METER v. BARR

December 18, 1991

MICHAEL VAN METER, Plaintiff,
v.
WILLIAM P. BARR, Attorney General, Defendant.


Gesell


The opinion of the court was delivered by: GERHARD A. GESELL

In this Title VII race discrimination case, A Special Agent of the Federal Bureau of Investigation ("FBI"), who brought suit in this Court on January 7, 1991, moves to amend his complaint to include a claim for compensatory damages and a request for a jury trial pursuant to the Civil Rights Act of 1991 ("1991 Act"), which became effective more than nine months after the original complaint was filed. The motion is opposed and has been fully briefed and argued.

 The Court confronts an issue of first impression in this jurisdiction, where according to the Clerk of the Court, some 322 cases invoking the Civil Rights Act of 1964, as amended ("1964 Act") are pending, the large majority of which, like the above-captioned case, involve federal employees.

 The 1991 Act

 Plaintiff moved to amend his complaint on November 21, 1991, the day the President signed the 1991 Act. in his proposed second amended complaint, plaintiff invokes sections 102(b) and (c) of the 1991 Act, which read as follows:

 Sec. 102. Damages in Cases of Intentional Discrimination

 (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 as allowed in subsection (b), . . .

 [Section 102(b) provides for compensatory and punitive damages in such actions, up to certain specified limits, but disallows punitive damages against the government.]

 (c) Jury Trial. -- If a complaining party seeks compensatory or punitive damages under this section --

 (1) any party may demand a trial by jury . . . .

 The 1991 Act contains no provision stating specifically whether or not the damages and jury sections cited above apply to cases, such as the present case, already pending in U.S. District Courts. Moreover, the legislative history of the 1991 Act not only fails to provide any guidance on the question, but as the parties agree, it affirmatively leaves the issue in a state of total confusion. The congressional "debates" were, with few exceptions, hardly more than a series of declarations and counterdeclarations, which often addressed "retroactivity" without ever defining that term or focusing on the crucial, separate problem at issue here of how the 1991 Act was supposed to affect federal employment cases pending before the courts.

 The new damages provision plaintiff is attempting to invoke does not eliminate the equitable remedies available under the 1964 Act, such as back pay, promotion, protection against retaliation, and the like; and the carefully crafted administrative procedures involving conciliation, evidentiary hearings before an Administrative Law Judge, and agency review, which comprise a necessary prerequisite to ...


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