Rivers v. Roadway Express, Inc., 511 U.S. 298, 12 (1994)

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Cite as: 511 U. S. 298 (1994)

Opinion of the Court

was enacted in response to Patterson does not supply sufficient evidence of a clear congressional intent to overcome the presumption against statutory retroactivity.

B

A lack of clear congressional intent would not be dispositive if, as petitioners argue, 101 is the kind of restorative statute that should presumptively be applied to pending cases. Petitioners maintain that restorative statutes do not implicate fairness concerns relating to retroactivity at least when, as is the case in this litigation, the new statute simply enacts a rule that the parties believed to be the law when they acted.9 Indeed, amici in support of petitioners contend, fairness concerns positively favor application of 101 to pending cases because the effect of the Patterson decision

of 1981. Compare, e. g., 137 Cong. Rec. H9526 (Nov. 7, 1991) (remarks of Rep. Edwards), with id., at H9543 (Nov. 7, 1991) (remarks of Rep. Hyde). The history also includes some debate over the proper test for courts to apply—specifically, the "Bradley" presumption or the "Bowen" presumption, see Landgraf, ante, at 263-265—to determine the applicability of the various provisions of the Act to pending cases. Compare, e. g., 137 Cong. Rec. 30340 (1991) (remarks of Sen. Kennedy) (citing Bradley test), with id., at 29043-29044 (remarks of Sen. Danforth) (favoring Bowen test). As we noted in Landgraf, ante, at 262-263, the legislative history reveals that retroactivity was recognized as an important and controversial issue, but that history falls far short of providing evidence of an agreement among legislators on the subject.

9 They point out that respondent has no persuasive claim to unfair surprise, because, at the time the allegedly discriminatory discharge occurred, the Sixth Circuit precedent held that 1981 could support a claim for discriminatory contract termination. See, e. g., Cooper v. North Olm-stead, 795 F. 2d 1265, 1270, n. 3 (1986); Leonard v. City of Frankfort Elec. and Water Plant Bd., 752 F. 2d 189, 195 (1985). See also Mozee v. American Commercial Marine Service Co., 963 F. 2d 929, 941 (CA7 1992) (Cudahy, J., dissenting); Gersman v. Group Health Assn., Inc., 975 F. 2d 886, 907-908 (CADC 1992) (Wald, J., dissenting), cert. pending, No. 92-1190. We note, however, that this argument would not apply to any cases arising after Patterson was decided but before the 1991 Act's enactment.

309

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