repeal of a ceiling on the District of Columbia's workman's compensation benefits could allow a disabled employee to collect a disability award in excess of the ceiling even though his injuries occurred prior to the repeal. In holding that the repeal may be applied retroactively, the Court of Appeals stated:
The existence of a . . . ceiling in effect allowed the employer to avoid the responsibility for the full costs associated with his enterprise because it deprived his employees of compensation for earning capacity lost in the employer's service. Removing the artificial ceiling, therefore, creates no injustice. It instead removes an obstacle to fair treatment by 'allocating to the [employer] an actual, measurable cost of his business.
Id. at 94 (quoting Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 19, 49 L. Ed. 2d 752, 96 S. Ct. 2882 (1976)). Similarly, Section 102 of the 1991 Act simply allows the plaintiff to receive an award, should the employer ultimately be found liable by a jury for acts of racial discrimination, that more accurately reflects the harms wrought be the wrongful conduct.
The preceding Bradley analysis notwithstanding, some courts have held that retroactive allowance for compensatory damages could, in fact, work a manifest injustice. See Landgraf v. USI Film Prod., 968 F.2d 427, 433 (5th Cir. 1992) (holding in suit between private parties
that retroactive application of 1991 Act's provisions for compensatory and punitive damages would work a manifest injustice), petition for cert. filed, 61 U.S.L.W. 3371 (U.S. Oct. 28, 1992) (No. 92-757); Letourneau v. Casa Mia, Inc., 804 F. Supp. 389, 392-93 (D. Me. 1992) (same); Crumley v. Delaware State College, 797 F. Supp. 341, 352 (D. Del. 1992) (same). But see Kent, 801 F. Supp. at 336 (holding in suit against federal employees that retroactive application of 1991 Act's provisions for jury trial and compensatory damages causes no manifest injustice); Bridges v. Eastman Kodak Co., 800 F. Supp. 1172, 1178 (S.D.N.Y. 1992) (holding no manifest injustice, in suit between private parties, and including claim for punitive damages); Jaekel v. Equifax Mktg. Decision Sys., Inc., 797 F. Supp. 486, 493-94 (E.D. Va. 1992) (same); Tyler v. Pennsylvania, 793 F. Supp. 98, 101-02 (M.D. Pa. 1992) (holding no manifest injustice, in suit against state government).
For instance, in Landgraf, the Fifth Circuit argues:
Retroactive application of this provision [regarding compensatory and punitive damages] to conduct occurring before the Act would result in a manifest injustice. The addition of compensatory and punitive damages to the remedies available to a prevailing Title VII plaintiff does not change the scope of the statute's coverage. That does not mean, however, that these are inconsequential changes in the Act. As Judge Posner notes in Ludington [v. Indiana Bell Tel. Co., 966 F.2d 225, 229 (7th Cir. 1992), petition for cert. filed, 61 U.S.L.W. 3446 (U.S. Dec. 3, 1992) (No. 92-977)], "such changes can have as profound an impact on behavior outside the courtroom as avowedly substantive changes."
968 F.2d at 433. The reasoning behind this statement was laid out by Judge Posner in Ludington: "The amount of care that individuals and firms take to avoid subjecting themselves to liability whether civil or criminal is a function of the severity of the sanction . . . ." 966 F.2d at 229. Judge Posner makes essentially an economic argument based on the premise that potential future costs control present conduct, and retroactive application of the 1991 Act's damages section unfairly alter the costs to employers after decisions about conduct have already been made and executed. This argument was stated more bluntly in Crumley:
Because of the potential for lawsuits, decisions to downsize or to terminate employees often include a calculus of exposure to damages in civil suits. For this reason it can be persuasively argued that it is unreasonable to expect defendants to pay damages that were not calculated into their decisions.
797 F. Supp. at 352.
As persuasive as the reasoning in Landgraf, Ludington, and Crumley is in the context of private employers, it must be plainly distinguished from this case, which involves a suit against an independent agency of the United States. First, any "calculus of exposure" in this case is affected less significantly than in those cases because the government is protected against punitive damages by the 1991 Act. See 42 U.S.C. § 1981a(b)(1). Secondly, and fundamentally, the government is not a private individual, and principles of fairness that require notice and a right to be heard before subjecting private parties to retroactive liability do not obtain against the government. That is the clear import of Supreme Court rulings regarding retroactivity dating to the inception of this nation. See, e.g., Bradley, 416 U.S. at 724 (allowing retroactive award of attorney's fees in case against local school district); Schooner Peggy, 5 U.S. at 110 (urging no retroactive application of laws in cases between private parties).
Hence, the arguments that compel a finding of manifest injustice in suits between private litigants do not apply to the present case, and the preceding analysis of Bradley factors remains firm. As this case involves procedural and remedial changes in the law, Gersman dictates that the Bradley presumption in favor of retroactive application applies, and because the Court finds that no manifest injustice will occur, the Bradley presumption is controlling. Accordingly, defendants Motion to Strike Plaintiff's Demand for Compensatory Damages and a Trial by Jury must be denied.
An appropriate Order accompanies this Memorandum Opinion.
GEORGE H. REVERCOMB
United States District Judge
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 812 F. Supp. 246.
ORDER - February 4, 1993, Filed
For the reasons set forth in the accompanying Memorandum Opinion, it is
ORDERED that Defendant's Motion to Dismiss and for Summary Judgment is DENIED; and it is
FURTHER ORDERED that Defendant's Motion to Strike Plaintiff's Demand for Compensatory Damages and a Trial by Jury is DENIED; and it is
FURTHER ORDERED that a status conference in this case shall take place at 9:00 a.m. on March 12, 1993.
GEORGE H. REVERCOMB
United States District Judge