Opinion for the Court filed by Circuit Judge SENTELLE.
Dissenting Opinion filed by Circuit Judge WALD.
SENTELLE, Circuit Judge:
When last we considered this case, we affirmed the judgment of the District Court dismissing appellants' complaint for failure to state a claim on which relief could be granted. We now reconsider that decision on remand from the Supreme Court in light of the Civil Rights Act of 1991. Because we find pertinent portions of that Act do not apply retroactively, we conclude that our original opinion remains a valid statement of applicable law. Thus, we again affirm the District Court's dismissal.
I. Background
A. Factual Background and Procedural History
As indicated above, this case is on a return visit to our Court. While the facts are discussed at some length in our prior opinion, Gersman v. Group Health Ass'n, Inc., 931 F.2d 1565 (D.C.Cir.1991), and the original District Court decision by the same name, 725 F.Supp. 573 (D.D.C.1989), we will sketch them here briefly as a foundation for the further discussion of the case's procedural history which follows.
Alan Gersman and Computer Security International, Inc. ("CSI"), of which he is president (collectively "appellants" or "CSI"), brought suit against Group Health Association, Inc. ("GHA" or "appellee") under 42 U.S.C. § 1981, alleging that GHA had wrongfully terminated a contract with CSI in 1987 because its president was Jewish. The District Court held that neither the individual nor the corporate plaintiff had standing. 725 F.Supp. at 577-78. The District Court alternatively held that the Supreme Court's decision in Patterson v. McClean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), governed the case; that under Patterson, § 1981 afforded relief only for discrimination in the formation of contracts; and that therefore, plaintiff's allegations of a discriminatory termination stated no claim. Id. at 574-76.
On appeal, we concluded that the District Court was correct on both grounds as to Gersman, but held that CSI had standing. We nonetheless affirmed because we agreed that Patterson governed, and that under Patterson, CSI had failed to state a claim. Gersman, 931 F.2d at 1572-73.
Thereafter, appellants sought certiorari to the Supreme Court. On January 27, 1992, the Supreme Court granted the writ of certiorari but did not approach the merits. Rather, it vacated the judgment and remanded the case to this Court "for fur ther consideration in light of the Civil Rights Act of 1991." — U.S.-,-, 112 S.Ct. 960, 960, 117 L.Ed.2d 127 (1992).
B. The Statutory Framework
At the time of our prior decision, 42 U.S.C. § 1981 was the only United States statute arguably reaching the conduct alleged in this case. That statute guarantees the right to "make and enforce contracts" under the "equal benefit of all laws____" In Patterson, the Supreme Court interpreted the contract clause of the statute as meaning what it says, but no more. That is, § 1981 was held to apply to the formation of contracts, but not "to conduct which occurs after the formation of a contract and which does not interfere with the right to enforce established contract obligations." 491 U.S. at 171, 109 S.Ct. at 2369. In our original Gersman decision, we applied Patterson to the facts of this case and held that the complaint stated no claim under § 1981.
After the entry of our decision but while CSI's petition for certiorari was still pending before the Supreme Court, Congress enacted the Civil Rights Act of 1991. That Act included a provision adding two new subsections to § 1981. Subsection b provides:
For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
Pub.L. No. 102-166, § 101, codified at 42 U.S.C. § 1981 (emphasis added). The essential question for us today is whether that subsection applies retroactively to pending cases which seek redress under § 1981 for conduct occurring prior to its enactment.
II. Analysis
Unsurprisingly, CSI argues that the Civil Rights Act of 1991, or at least the pertinent provision, applies retroactively. Equally predictably, GHA argues that it does not. Both assert presumptions drawn from Supreme Court decisions. While we will trace the origin and reasoning of these presumptions at greater length below, we introduce each briefly here. Appellants rely on Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974), which asserted "the principle that a court is to 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."
GHA argues from Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208, 109 S.Ct. 468, 471, 102 L.Ed.2d 493 (1988), which stated that "congressional enactments and administrative rales will not be construed to have retroactive effect unless their language requires this result."
A. Congressional Intent
We are thus apparently trapped between opposed walls of presumption directed by the Higher Authority. Initially, the language of both presumptions appears to open a possible line of interpretive escape; each presumption applies only in the absence of statutory terms clearly directing the choice between retroactive and prospective application.
Each party here argues that Congress has set such guideposts. Each party points to some of them. Unfortunately, the guideposts point in conflicting directions. Appellants offer three parts of the Civil Rights Act of 1991 bearing on the question at hand: (1) § 101 itself; (2) the general effective date of the Act set forth in § 402(a); and (3) § 109(c) and 402(b), which address questions of retroactivity. As appellants see it, the language of § 101 saying that "the term 'make and enforce contracts' includes the . termination of contracts," coupled with the enacting language of § 402(a), "[ejxcept as otherwise specifically provided, this Act and the amendments made by this Act shall take effect upon enactment," establishes the statute's retroactivity. They argue that because the statute's enactment date is November 21, 1991 and the Act contains no other language of prospectivity, courts ad dressing cases after the effective date should apply § 101, whether the conduct under adjudication occurred before or after the enactment. It is not apparent to us that this is anything more than a restatement of the Bradley presumption.
Appellee argues the contrary from the same language. That is, appellee asserts the "take effect upon enactment" language in § 402(a) is evidence of congressional intent that the amendment apply prospectively only. In appellee's view, the District Court rehearing the controversy between Patterson and the McClean Credit Union interprets this provision correctly by holding that "the four words 'take effect upon enactment' must be interpreted to indicate a beginning point . from which date the Act and its amendments would be operative on events coming within their scope, but having no effect on events occurring before that date as the Act was not operative prior to November 21, 1991." Patterson v. McLean Credit Union, 784 F.Supp. 268, 273-74 (M.D.N.C.1992). Accord Franklin v. New Mexico, 730 F.2d 86, 87 (10th Cir. 1984) (statutory language that " 'amendments made by this section shall become effective on the date of the [statute's] enactment' . indicate[s] an intent for prospective application of the amendment.").
Appellee goes on to argue that we should read the "take effect upon enactment" language as evidencing a congressional intent to preclude retroactive application because Congress has expressed itself quite clearly in other statutes where it intended retroactive application. They offer us by way of example the Federal Home Loan Bank Act, 12 U.S.C. § 1439a (all monies deposited pursuant to the statute shall be available "retroactively as well as prospectively"); Black Lung Benefits Act, 30 U.S.C. § 945(a)(1) & (c) (providing for processing of benefit claims "pending on, or denied on or before" the effective date and awarding benefits "on a retroactive basis").
Again, it would seem that this argument is no more than a restatement of the Bowen presumption. Thus, after we examine the language of the relevant section and the enacting section, we are left with each side arguing that Congress has expressed an intent to apply the statute in a manner consistent with that side's view because it has not given us language clearly expressing a contrary intent. Appellants thus come back around to the Bradley presumption from which they started and, likewise, appellee returns to the Bowen presumption.
Once before in considering the apparent inconsistency in presumptions established by the Bradley and Bowen decisions, we noted that an act stating "only when . amendments 'become effective' " but not stating "whether they apply to conduct preceding the specified date or to litigation pending on that date," is ambiguous and "does not require us to apply" the amendments to conduct preceding the enactment or to litigation pending at the day of enactment. Alpo Petfoods, Inc. v. Ralston Purina Co., 913 F.2d 958, 964 n. 6 (D.C.Cir.1990) (Thomas, J.). Consistent with our prior decision, we can find no unambiguous answer to the retroactivity question in the enacting language here.
Appellants' argument from § 109(c) and 402(b) carries a bit more substance, but only a bit. Section 109 extends the coverage of Title VII and the Americans with Disabilities Act to extraterritorial employment. Subsection (c) provides that "the amendments made by this section shall not apply with respect to conduct occurring before the date of the enactment of this act." Subsection 402(b) is contained in the same section as the general effective date. The subsection specifies that "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." The striking specificity of this last subsection was directed toward Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989), the case in which the Supreme Court clarified the burden of proof rules in disparate impact cases under Title VII. All parties agree that Congress enacted § 105 of the Act with the express intent to effect a shifting of the burden of proof in disparate impact cases.
Appellants argue that the inclusion of express language against retroactivity in § 109(c) and 402(b) should convince us that Congress intended retroactive application of the rest of the Act under the Supreme Court's caution that "no provision [of a statute] should be construed to be entirely redundant," Kungys v. United States, 485 U.S. 759, 778, 108 S.Ct. 1537, 1550, 99 L.Ed.2d 839 (1988). As appellants further note, the Supreme Court has elsewhere advised: "[W]e are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law." Mackey v. Lanier Collection Agency, 486 U.S. 825, 837, 108 S.Ct. 2182, 2189, 100 L.Ed.2d 836 (1988).
However, given the convoluted legislative history of this Act and the war of interests firing at each other across the floor of both legislative houses, one might view these two subsections not as redundancies, but rather as insurance policies. Senator Dole, a principal proponent of the inclusion of § 402(b), which had been inadvertently omitted from the Senate version of the Act, expressly argued that "[absolutely no inference is intended or should be drawn from the language of this [section] that the provisions of the Act or the amendments it makes may otherwise apply retroactively to conduct occurring before the date of enactment of this Act." 137 Cong.Rec. S15,953 (daily ed. Nov. 5, 1991). Likewise, Senator Danforth, recognized by appellants themselves as "the Senator most responsible for passage of the Civil Rights Act of 1991," Brief for Appellants at 16, stated that the section "should not be read in derogation of the sponsors' intention not to provide for retroactive effect____" 137 Cong.Rec. at S15,483 (daily ed. Oct. 30, 1991). On the House side, Representative Hyde assured his colleagues that the section was "unnecessary" and "surplusage" and that it did "not accomplish or achieve a thing and it should not be the subject of so much excitation." 137 Cong.Rec. H9,512 (daily ed. Nov. 7, 1991). See also 137 Cong. Rec. S15,966 (daily ed. Nov. 5, 1991) (remarks of Senator Gorton) ("the language in question does no more than reaffirm for one specific case the more general mandate of the bill that the civil rights amendments will be applied prospectively").
We hasten to say that we do not rely on these snippets of legislative history as definitive evidence of congressional intent. Appellants offer language from other sections with no direct bearing on the question of retroactivity of § 101(b), and argue that a failure to apply § 101(b) retroactively attributes to Congress an intent to insert redundancy into the Act. We offer the legislative history only to illustrate that such an intent is by no means an impossibility. Although it is helpful in construing one section of a statute to test whether a proffered interpretation would render another section surplusage, it is not conclusive. Given the potentially drastic impact of retroactivity of the disparate impact section on the Wards Cove defendants, it is not unthinkable that legislators wished to reassure the employers that they would not face recoveries of back pay plus interest from some time in the early 1970s for conduct committed twenty years or so before the passage of the statute.
Although the legislative history we offer above does no more than illustrate the possibility that Congress may have intended such an insurance policy, it also does no less. At the end of our examination, we remain where we began. Congress has not provided a clear expression of its intent as to the retroactive or prospective application of § 101(b) in the language of the statute.
B. Legislative History
Even as each litigant offers us sections of legislative language to support opposing views of congressional intent on the retroactivity question, so do they and their supporting amici offer segments of legislative history. We examine their offerings, but we caution at the outset that we do so with much reluctance. At its best, legislative history is an undependable guide to the meaning of a statute. In the first place, we must remember that it is the meaning of the statute, and not the disembodied intent of the legislature, that we seek. "As Justice Holmes remarked, 'we do not inquire what the legislature meant; we ask only what the statute means.' " Starr, Observations About the Use of Legislative History, 1987 Duke L.J. 371, 378 (quoting O.W. Holmes, The Theory of Legal Interpretation in Collected Legal Papers, 207 (1920)).
We offer this observation not merely for its cleverness, but also for its substance. It is only the statute itself that is law. A statement by a single member of the legislature or a report by a single committee (or even by an entire house) is not. The Supreme Court has noted that a bill is not law until it is passed by both the Houses and presented to the President for his approval, or re-passed by two-thirds of each House after his disapproval. INS v. Chadha, 462 U.S. 919, 945-46, 103 S.Ct. 2764, 2781, 77 L.Ed.2d 317 (1983) (citing U.S. Const. art. 1, sec. 1 & sec. 7 cl. 2, 3).
With full awareness of the warning signs, we walk through the mine field of legislative history in search of congressional intent only with grave trepidation. Once there, we find that the cautions were never more warranted. Many versions of the Civil Rights Act were offered, many were rejected. One was passed, only to be vetoed. Finally, after much amendment, compromise, and rhetoric, Congress enacted the bill that the President signed. Along the way, many representatives and many senators speaking for various constituencies made a variety of remarks. Never have we been so convinced of the wisdom of the late Judge Leventhal's observation that "reviewing legislative history is like looking over the crowd at a party and picking out one's friends." See Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L.Rev. 195, 214 (1983). In the present case, each side introduces us to its own favorite acquaintances.
Appellants first point us to the historic fact that Representative Michel offered a substitute bill for the Civil Rights Act of 1991. That substitute contained a two-sentence provision on the effective date:
This act and the amendments made by this act should take effect upon enactment. The amendments made by this act shall not apply to any claim arising before the effective date of this act.
137 Cong.Rec. H3,898 (daily ed. June 4, 1991). As the version ultimately adopted by Congress contained a one-sentence enactment clause identical to the first sentence in the Michel substitute, but did not contain the second sentence, appellants argue that we should infer that Congress expressly rejected the idea embodied in the second sentence that the Act does not apply to deeds done before its effective date. From this they would then have us reason that Congress must have expressly intended the opposite; that Congress did intend to regulate deeds done before the passage of the Act. See generally Russello v. United States, 464 U.S. 16, 23-24,104 S.Ct. 296, 301, 78 L.Ed.2d 17 (1983) ("Where Congress includes limiting language in an earlier version of a bill but deletes it prior to enactment, it may be presumed that the limitation was not intended."). Unfortunately, this argument is little more than a rehash of the Bradley presumption: in the absence of a contrary comment, the Act applies retroactively.
For the most part, however, appellants, with commendable candor, note that the bill, having followed a tortuous path to enactment, did not leave behind the more useful footprints of legislative history, such as committee reports of single houses or a conference report. The House of Representatives acted first and passed a comprehensive bill. The Senate deliberated without the benefit of the normal committee process, attempting to fashion a proposal that would command the support of a veto-proof bipartisan majority of Senators. The House simply took up and passed the Senate bill without conference.
Both Senator Danforth, a principal Republican sponsor of the final bill, and Senator Kennedy, a principal Democratic sponsor, indicated that the legislative history had little utility. Danforth: "Whatever is said on the floor of the Senate about a bill is the view of the Senator who is saying it. And if it is not written into legislative language, it does not necessarily bind and probably does not bind anybody else, including the 30-some odd cosponsors of the legislation." 137 Cong.Rec. S15,325 (daily ed. Oct. 29,1991). Kennedy: "It will be up to the courts to determine the extent to which the bill will apply to cases and claims that are pending on the day of enactment." 137 Cong.Rec. S15,485 (daily ed. Oct. 30, 1991).
Appellee nonetheless presents several of its "friends." Not the least of these is the President's veto message of the 1990 Act, which specifically singles out "unfair retroactivity rules" as a reason for the veto. 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). Appellee reasons that the subsequent signing by the President of the 1991 Act indicates understanding by him — one of the three parties to its enactment — that no such retroactivity was intended.
Appellee further offers us reasoning not unlike the argument appellants advanced with reference to Representative Michel's substitute. H.R. 1, rejected by the substitution of the Senate version, contained explicitly retroactive transition rules. As the final version did not, appellants argue that we should conclude that Congress had no intention to make the Act retroactive. We should therefore hold, they argue, that Congress intended it to be prospective only. See Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992) (concluding that legislative history clearly indicates that the Civil Rights Act of 1991 should be applied prospectively). This last step sounds a great deal like the presumption advanced in Bowen. It does not sound like very much more.
Appellee goes on to offer us numerous statements placed in the record by numerous members of the Congress after the statute's enactment. As we have noted before, a "contradiction between [congressmen on opposite sides of a question of legislative interpretation] need not dismay us, nor need we seek to resolve it." Antolok v. United States, 873 F.2d 369, 377 (D.C.Cir.1989). Such a contradiction "may simply remind us once again that
an endemic interplay, in Congress, of political and legislative consideration . makes it necessary for judges to exercise extreme caution before concluding that a statement made in floor debate, or at a hearing, or printed in a committee document may be taken as statutory gospel."
Id. (quoting International Bhd. of Elec. Workers, Local Union No. 474 v. NLRB, 814 F.2d 697, 717 (D.C.Cir.1987) (Buckley, J., concurring)). More bluntly put, a single member may be attempting to reassure his own constituency or even to create legislative history for citation by courts. See generally International Bhd. of Elec. Workers, 814 F.2d at 715-20 (Buckley, J., concurring).
To our minds the most convincing floor statement is one presented by appellants:
I simply want to state that a court would be well advised to take with a large grain of salt floor debate and statements placed into the Congressional Record which purport to create an interpretation for the legislation that is before us.
137 Cong. Rec. S15,325 (daily ed. Oct. 29, 1991) (statement of Senator Danforth).
As the reader may have by now surmised, we do not find the legislative history to resolve the question of legislative intent. We are therefore left where we began this analysis. That is, appellants principally rely on the Bradley presumption. Appellee principally relies on the Bowen presumption. They are in apparent conflict.
C. The Conflicting Presumptions
Before attempting to determine which of the apparently conflicting presumptions govern the case before us, we will review at some greater length the two lines of authority. In Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), several black plaintiffs had brought an action to compel desegregation of the public schools of Richmond, Virginia. During the progress of the litigation, the school board conceded that the plan under which it had been operating was not constitutional. After further proceedings concerning the remedy, the district court entered a judgment in favor of the plaintiffs, which included a fee award. The school board appealed from the award of fees.
Following initial submissions of the case to the Court of Appeals but before its decision, Congress enacted § 718 of the Education Amendments of 1972, 20 U.S.C. § 1617 which granted federal courts authority to award attorneys fees to a prevailing party in a school desegregation case. The Fourth Circuit, noting that no orders were pending or appealable before the district court on the effective date of the statute, ruled that § 718 did not apply to services rendered prior to its effective date. The Supreme Court reversed.
In analyzing the retroactivity question, the Bradley Court looked first to the words of Chief Justice Marshall in United States v. Schooner Peggy, 1 Cranch 103, 2 L.Ed. 49 (1801). In that case Marshall had noted for the Court that the "general rule" is that "an appellate court is only to inquire whether a judgment, when rendered, was erroneous or not." Id. at 110 (emphasis supplied). But the Court further noted, "if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs," the new law must be obeyed. Id.
The Court went on to qualify that obligation, however, by recognizing that "[i]t is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties____" Id. at 110. But the Schooner Peggy case was not a "mere private case between individuals." It involved condemnation following seizure of a French vessel by an American ship. During the pendency of the case on appeal to the Supreme Court from the Circuit, the two nations entered a convention "providing in part: 'property captured and not yet definitively condemned, or which may be captured before the exchange of ratification . shall be mutually restored. " Bradley, 416 U.S. at 712 n. 16, 94 S.Ct. at 2016 n. 16 (quoting Schooner Peggy, 1 Cranch at 107 (emphasis in Bradley)). This being the case, the Schooner Peggy Court went on to state that "in great national concerns, . the Court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside." 416 U.S. at 712, 94 S.Ct. at 2016 (quoting Schooner Peggy, 1 Cranch at 110).
Obviously, there is some distance between the Schooner Peggy ruling, establishing that the law at the time of the appellate hearing applies in cases of great national concern but is to be "struggled against" in cases between private parties, and a flat presumption that laws apply retroactively. In bridging that gap, the Bradley Court relied on only one case between the 1801 decision and its own 1974 holding. In that one case, Thorpe v. Housing Authority of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969), the Court ruled in more general terms that "an appellate court must apply the law in effect at the time it renders the decision." Id. at 281, 89 S.Ct. at 526.
In the Thorpe decision, after the plaintiff Municipal Housing Authority had obtained an eviction order from a state court, and after that order had been affirmed by the state supreme court, Housing Authority of Durham v. Thorpe, 267 N.C. 431, 148 S.E.2d 290, cert. granted, 385 U.S. 967, 87 S.Ct. 515, 17 L.Ed.2d 432 (1966), the Department of Housing and Urban Development published a circular ordering new procedural prerequisites for such an eviction. The United States Supreme Court then remanded to the Supreme Court of North Carolina "for such further proceedings as [might] be appropriate in the light of" the Housing and Urban Development directive. Thorpe v. Housing Authority of Durham, 386 U.S. 670, 673-74, 87 S.Ct. 1244, 1246, 18 L.Ed.2d 394 (1967) (per curiam). The North Carolina Supreme Court reaffirmed its original decision at 271 N.C. 468, 157 S.E.2d 147 (1967), sub. nom. Housing Authority of Durham v. Thorpe.
The United States Supreme Court again granted certiorari and this time reached the retroactivity issue. Relying on Schooner Peggy, the Court held that "the general rule . is that an appellate court must apply the law in effect at the time it renders its decision." 393 U.S. at 281, 89 S.Ct. at 526. In its analysis of Thorpe, the Bradley Court reaffirmed that the decision "stands for the proposition that even where the intervening law does not explicitly recite that it is to be applied to pending cases, it is to be given recognition and effect." 416 U.S. at 715, 94 S.Ct. at 2018.
The Bradley Court went on to note, as we did in our brief discussion above, that this presumption would apply only "in the absence of clear legislative direction to the contrary____" 416 U.S. at 715, 94 S.Ct. at 2018. Moreover, it suggested a remaining vitality to Chief Justice Marshall's concern about retroactivity in " 'mere private cases between individuals.' " 416 U.S. at 718, 94 S.Ct. at 2019 (quoting Schooner Peggy, supra, at 110). The Court also noted possible exceptions to retroactivity in cases where it could cause a party to suffer "manifest injustice." 416 U.S. at 716, 94 S.Ct. at 2019 (citing Thorpe, 393 U.S. at 282, 89 S.Ct. at 526 (in turn citing Greene v. United States, 376 U.S. 149, 160, 84 S.Ct. 615, 621, 11 L.Ed.2d 576 (1964))). In expositing its concern for the disruption of the legal relationship between private parties, the Court suggested that possible injustices resulting from retrospective application would include infringement upon or deprivation of "a right that had matured or become unconditional." 416 U.S. at 720, 94 S.Ct. at 2020 (citing Greene v. United States, 376 U.S. at 160, 84 S.Ct. at 621). Finally, the Bradley Court implied that such manifest injustice would occur where the retrospective application would impose "new and unanticipated obligations . without notice or an opportunity to be heard." 416 U.S. at 720, 94 S.Ct. at 2021.
Appellants argue that none of these exceptions applies and therefore that the Bradley presumption should govern. Unfortunately for appellants (and perhaps for our ease of decision, although the question of the application of the exceptions may not be as simple as appellants assume), that is not the end of the Supreme Court's treatment of the retroactivity question. In Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988), the Supreme Court held, "[rjetroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Id. at 208, 109 S.Ct. at 471. In Bowen, the Secretary of Health and Human Services had promulgated new regulations setting limits on the level of reimbursement allowable for Medicare costs. The Secretary attempted to apply these limitations retroactively. In the language quoted above, the Supreme Court affirmed the Court of Appeals and District Court decisions denying the Secretary's retroactive application. Justice Kennedy, writing for a unanimous Supreme Court, did so without citing either Bradley or Thorpe.
The Bowen Court did, however, cite a long line of cases supporting its presumption against retroactivity — a line not overruled in either Bradley or Thorpe. See, e.g., Greene v. United States, 376 U.S. 149, 160, 84 S.Ct. 615, 621, 11 L.Ed.2d 576 (1964) ; Claridge Apartments Co. v. Commissioner, 323 U.S. 141, 164, 65 S.Ct. 172, 185, 89 L.Ed. 139 (1944); Miller v. United States, 294 U.S. 435, 439, 55 S.Ct. 440, 441- 42, 79 L.Ed. 977 (1935); and United States v. Magnolia Petroleum Co., 276 U.S. 160, 162-63, 48 S.Ct. 236, 237, 72 L.Ed. 509 (1928).
To take the oldest from the Bowen Court's list, in the Magnolia Petroleum case, the Supreme Court considered an amendment to the Revenue Act affecting the computation of interest on refunds. The Commissioner of Internal Revenue had calculated interest due based on the statute in effect at the .time of the payment. The taxpayer contended that interest should be computed according to the later enactment. In rejecting the taxpayer's contention, the unanimous Supreme Court held, "[s]tatutes are not to be given retroactive effect or construed to change the status of claims fixed in accordance with earlier provisions unless the legislative purpose so to do plainly appears." 276 U.S. at 162-63. In support of this proposition, the Magnolia Petroleum Court cited a line of cases dating back to United States v. Heth, 3 Cranch 399, 413, 2 L.Ed. 479 (1806) ("[w]ords in a statute ought not to have a retrospective operation, unless they are so clear, strong, and imperative, that no other meaning can be annexed to them, or unless the intention of the legislature cannot be otherwise satisfied.").
In fact, as one of our sibling circuits has noted, the principle of legislative prospectivity began with Roman civil law and extended forward "through the centuries [of] venerable common law commentators such as Bracton, Cope, Blackstone, and Sir Francis Bacon." Fray v. Omaha World Herald Company, 960 F.2d 1370, 1374 (8th Cir.1992) (citing Smead, The Rule Against Retroactive Legislation: A Basic Principle of Jurisprudence, 20 Minn.L.Rev. 775, 775-81 (1936)). As the Fray Court further noted, prior to the Thorpe decision "this was a long and well established principle of American jurisprudence as well____" Id.
In fact, the Supreme Court has stated more than once that
[T]he first rule of construction is that legislation must be considered as addressed to the future, not to the past . a retrospective operation will not be given to a statute which interferes with antecedent rights . unless such be "the unequivocal and inflexible import of the terms and the manifest intention of the legislature."
Greene v. United States, 376 U.S. at 160, 84 S.Ct. at 621-22 (quoting Union Pacific Railroad Co. v. Laramie Stockyards Co., 231 U.S. 190, 199, 34 S.Ct. 101, 102, 58 L.Ed. 179 (1913)). As the Eighth Circuit noted in Fray, "the Supreme Court destabilized this rather settled doctrine in Thorpe . and again in Bradley____" 960 F.2d at 1374. Unfortunately, as we noted above, the Bradley and Thorpe decisions do not overrule the prospective presumption lines and the Bowen Court neither overrules nor cites Bradley and Thorpe. Thus, the two presumptions continue to exist in apparent inconsistency.
The problem posed by the conflicting lines surfaced in Kaiser Aluminum and Chemical Corp. v. Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990). There, the Court considered an amendment to 28 U.S.C. § 1961 changing the rate at which post-judgment interest should be calculated passed after the entry of a judgment. Justice O'Connor, for the majority, recognized the two presumptions and the "apparent tension" between "the rule articulated in Bradley " and the "generally accepted axiom" reaffirmed in Bowen. 494 U.S. at 837, 110 S.Ct. at 1577. The Court nonetheless did not find it necessary to "reconcile the two lines of precedent" because the Court found clear congressional intention that the amendment to § 1961 was to apply prospectively only. Id.
However, four justices of the Court did not find congressional intent to be nearly so clear as did the majority. Justice White, writing for himself and Justices Marshall, Brennan, and Blackmun, determined that "the tension" between Bradley and Bowen "is more apparent than real____" 494 U.S. at 864, 110 S.Ct. at 1591 (White, J., dissenting). In his view — which admittedly we oversimplify — the Bowen presumption applies to prevent " 'altering the past legal consequences of past actions.' " Id. at 866, 110 S.Ct. at 1592 (emphasis in original) (quoting Bowen, 488 U.S. at 219, 109 S.Ct. at 477 (Scalia, J., concurring)). The Bradley presumption, on the other hand, is in Justice White's view a choice-of-law rule making it the general practice that changes in law apply to pending cases. Justice White would not apply this choice-of-law rule mechanically, but would examine the status of rights involved and the public interest implicated.
Justice Scalia, who joined Justice O'Con-nor's majority opinion in Kaiser Aluminum, nonetheless wrote separately to treat at length the Bradley-Bowen problem. To him the "two lines of cases are not merely . in 'apparent tension' . they are in irreconcilable contradiction____" 494 U.S. at 841, 110 S.Ct. at 1579 (Scalia, J., concurring). Justice Scalia's concurrence catalogs at length the history of the presumption against retrospective operation, concluding that "[djuring . more than 150 years of doctrinal certainty," the Supreme Court denied retroactive application to new statutory law except when "the statute affirmatively so required." Id. at 844, 110 S.Ct. at 1580. He then reviewed the Thorpe-Bradley line and argued that those cases misinterpreted and misapplied Schooner Peggy. In Justice Scalia's view, Schooner Peggy stands for the proposition that only when Congress "plainly says" that legislation has retroactive effect are courts to depart from "the ordinary presumption which courts will 'struggle hard' to apply" against retroactivity. Id. at 846-47, 110 S.Ct. at 1582 (emphasis in original) (quoting Thorpe, 393 U.S. at 281, 89 S.Ct. at 526). Without reiterating the entire argument, we note that Justice Scalia set forth a record of
(1) An unbroken line of precedent, prior to 1969, applying a presumption that statutes are not retroactive (except for repeal of penal provisions in all cases). (2) In 1969, with Thorpe, a departure from the tradition . for cases in which the statute has been enacted after initial adjudication. (3) From 1969 to the present, (a) firm adherence to the prior tradition in cases not involving post-adjudication enactment, and (b) the expression of adherence to the new presumption in post-adjudication enactment cases, but with only one case (Bradley, in 1974) where it seemingly produced a difference in outcome____
Id. at 853-54, 110 S.Ct. at 1985-86.
It is against this background that we must determine the retroactivity question in the present case.
D. Reconciliation and Application
We might echo Justice Scalia's plea in his Kaiser Aluminum concurrence that the Supreme Court "eliminate the confusion of the past two decades" and unqualifiedly affirm the principle of construction to be applied in retroactivity cases. 494 U.S. at 858, 110 S.Ct. at 1588 (Scalia, J., concurring); see also Luddington v. Indiana Bell Telephone Co., 966 F.2d 225 (7th Cir. 1992) (suggesting that the absence of a clear judicial retroactivity rule may provide an incentive for Congress to avoid addressing whether a new statute will have prospective or retroactive effect). We, however, obviously lack the power to overrule either Bowen or Bradley and therefore must find some principled way to determine which governs the case before us.
In our search we find persuasive and illuminating the exposition of Justice Scalia in his separate opinion in Kaiser Aluminum. As we discussed above, that separate opinion detailed how the historic line of Supreme Court decisions logically leads to a conclusion that new statutory law is presumed to apply prospectively except when "the statute affirmatively so require[s]." Kaiser Aluminum, 494 U.S. at 844, 110 S.Ct. at 1580. Persuasive as we find this, however, it remains the exposition of a single Justice and cannot overrule Bradley and Thorpe.
A further element of authority informing our decisionmaking is prior case law within our Circuit. While we have not spoken to the question of retroactivity of the Civil Rights Act of 1991, we have previously addressed the general retroactivity principle which must govern it. Indeed, one district court within this Circuit has applied our prior teachings to the question of re troactivity of another provision of the 1991 Act. In Van Meter v. Barr, 778 F.Supp. 83, 84-85 (D.D.C.1991), the district court held that the statute applied only prospectively, and further held that this conclusion was compelled by our decisions Alpo Petfoods, Inc. v. Ralston Purina Co., 913 F.2d 958 (D.C.Cir.1990), and Wagner Seed, Inc. v. Bush, 946 F.2d 918 (D.C.Cir.1991).
Indeed, the district court's decision in Van Meter was obedient to our language in those cases. In Alpo, as the Van Meter court noted, we stated:
Retroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.
913 F.2d at 964 n. 6 (Thomas, J.) (quoting Bowen v. Georgetown Univ. Hospital, 488 U.S. at 208, 109 S.Ct. at 471). Likewise, in Wagner Seed, we stated that "[i]f the presumption against retroactivity is not rebutted by clear terms to the contrary . then the statute applies only prospectively." 946 F.2d at 924. We cited an array of Supreme Court cases in support of this proposition. The Van Meter district court therefore was on firm ground when it held the presumption against retroactivity to be the law of this Circuit.
At first blush, it would appear that we, like the district court in Van Meter, should simply bind ourselves to our prior opinions and declare for Bowen over Bradley. We are, after all, bound by the decisions of prior panels of this Court "unless and until overturned by the court en banc or by Higher Authority." Save Our Cumberland Mountains, Inc. v. Hodel, 826 F.2d 43, 54 (D.C.Cir.1987) (Ruth B. Ginsburg, J., concurring). However, for two reasons, we do not deem ourselves to be so completely bound in the present case. First, the quoted language from Alpo Petfoods is candidly dicta. As we stated later in the same footnote, "even if we were to apply the Bradley presumption and give the 1988 Act retroactive effect, the substance of our . analysis would remain the same." 913 F.2d at 964 n. 6. In Wagner Seed, the Bowen analysis is not determinative of the result either, and therefore must be deemed not a holding, but rather a dictum, albeit an exceedingly strong one. Binding circuit law comes only from the holdings of a prior panel, not from its dicta. Cf. United States v. North, 910 F.2d 843, 881 (D.C.Cir.1990) ("[w]e are bound only by prior published opinions of this Circuit and not by other means of deciding cases.").
Second, even if the language of Alpo Petfoods and Wagner Seed were holdings rather than dicta, we still would be left with the troubling fact that two unreversed decisions of the Higher Authority are contra. Therefore, although we conclude that the language of our prior decisions impels us toward a presumption of prospectivity, we cannot comfortably assert that we are fettered by them to that choice.
Thus, the greater weight of authority from the Supreme Court and the existing authority from this Circuit establish that as between the two propositions that statutes presumptively apply to preenactment conduct and that they presumptively apply only to post-enactment conduct, the latter prevails. That is, generally "congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Bowen, 488 U.S. at 208, 109 S.Ct. at 471. In addition to conforming to the longest and largest line of Supreme Court decisions, this has the obvious salutary result that persons may know when they act the legal consequences of their actions. " '[Retrospective laws are . generally unjust; and . neither accord with sound legislation nor with the fundamental principles of the social compact.' " Kaiser Aluminum v. Bonjorno, 494 U.S. at 855-56, 110 S.Ct. at 1587 (Scalia, J., concurring) (quoting J. Story, Commentaries on the Constitution, § 1398 (1851)).
Nonetheless, that leaves us, as an inferi- or court, with the question of what to do with the presumption stated by Thorpe and Bradley in the highest court. We are not in fact the first circuit to wrestle with this problem. The Fifth, Sixth, Seventh, and Eighth Circuits have already dealt with the question of the retroactivity or prospectivity of the Civil Rights Act of 1991. Fray v. Omaha World Herald Co., 960 F.2d 1370, 1374-78 (8th Cir.1992); Johnson v. Uncle Ben's, Inc., 965 F.2d 1363 (5th Cir.1992); Luddington v. Indiana Bell Telephone Co., 966 F.2d 225 (7th Cir.1992); Mozee v. American Commercial Marine Serv. Co., 963 F.2d 929, 934-38 (7th Cir.1992); and Vogel v. Cincinnati, 959 F.2d 594, 597-98 (6th Cir.1992). All have held, as we do, that the Act does not apply retroactively.
In our holding, we are informed, as have been three of our sibling circuits, by the Supreme Court's decision in Bennett v. New Jersey, 470 U.S. 632, 639, 105 S.Ct. 1555, 1560, 84 L.Ed.2d 572 (1985). See Fray, 960 F.2d at 1374; Uncle Ben's, 965 F.2d at 1374; and Mozee, 963 F.2d at 934.
In Bennett, the Supreme Court considered a controversy arising from efforts of the United States Secretary of Education to recover from the state of New Jersey federal grant funds allegedly misused during the years 1970-72. The statute governing the grants, 20 U.S.C. § 241(a) et seq. had been amended in 1978. The Third Circuit had held that standards set by the amendments should apply to determine the propriety of expenditures in previous years. New Jersey Department of Education v. Hufstedler, 724 F.2d 34, 36-37 (1983). The Supreme Court reversed, and in doing so, discussed Bradley. The Court noted that Bradley had held "a statutory provision for attorney's fees applied retroactively to a fee request that was pending when the statute was enacted." 470 U.S. at 639, 105 S.Ct. at 1560. The Court further noted the Bradley Court's recognition of "the general principle that a court must apply the law in effect at the time of its decision____" Id. However, the Bennett Court distinguished Bradley and applied the 1978 amendments prospectively only. It did so offering alternative rationales. First, the Court noted that it
has refused to apply an intervening change to a pending action where it has concluded that to do so would infringe upon or deprive a person of a right that had matured or become unconditional.
Id. (quoting Bradley, 416 U.S. at 720, 94 S.Ct. at 2020). Further, the Bennett Court discussed the evidence of congressional intent, and noted that it did not appear that Congress "intended the substantive standards of the 1978 amendments to apply retroactively." 470 U.S. at 641, 105 S.Ct. at 1561. But most pertinently to the overarching question of the primacy of the Bowen presumption or the Bradley pronouncement, the Bennett Court stated that the limitation quoted above from the Bradley opinion "comports with another venerable rule of statutory interpretation, i.e., that statutes affecting substantive rights and liabilities are presumed to have only prospective effect." 470 U.S. at 639, 105 S.Ct. at 1560, citing United States v. Security Industrial Bank, 459 U.S. 70, 79, 103 S.Ct. 407, 413, 74 L.Ed.2d 235 (1982); Greene v. United States, 376 U.S. 149, 160, 84 S.Ct. 615, 621, 11 L.Ed.2d 576 (1964).
The Supreme Court in Bennett did not purport to overrule Bradley. But it noted that the Bradley decision concerned allowance of attorney fees, while acknowledging the continued vitality of the "venerable rule of statutory interpretation" followed in Security Industrial and Greene as applicable to "substantive rights and liabilities." 470 U.S. at 639, 105 S.Ct. at 1560. Therefore, we conclude that the Court has given us the basis upon which we must now distinguish the applicability of the two presumptions. The Bowen presumption must apply in the case of changes in substantive law. That being said, and Bradley still apparently being recognized by the Supreme Court, we agree with the Fifth Circuit that the Bradley presumption of applicability of law as of the time of decision must pertain to "remedial provision^] — not substantive obligations or rights under a statute." Uncle Ben's, 965 F.2d at 1374 (citing Bennett, 470 U.S. at 639, 105 S.Ct. at 1560).
The provision before the Court in Bradley, as noted in Bennett, applied to a remedy, not to the rights of the parties. The rights of the parties were the same before and after the change. The statutory amendment enlarged only the remedy. Likewise, in Thorpe, the amending statute altered procedural, not substantive, rights. Landlords had the same rights and limitations on eviction of tenants as before, but the required procedures had changed. Not so in the present case. In Johnson v. Uncle Ben's, Inc., the Fifth Circuit stated:
Section 101 affects substantive antecedent rights. Under Patterson, § 1981 did not prohibit discrimination in promotions before the enactment of § 101. Section 101 extended § 1981 to such discriminatory conduct. We then presume that § 101 does not apply to conduct that occurred before its enactment, absent clear evidence to the contrary. There is no such clear evidence.
965 F.2d at 1374.
Likewise here. Under Patterson, § 1981 did not prohibit discrimination in termination of contracts. Gersman v. Group Health Ass'n, Inc., 931 F.2d 1565, 1571. Section 101 extended § 1981 to that discriminatory conduct. Like the Fifth Circuit, we presume that a substantive statutory change such as § 101 does not apply to conduct that occurred before its enactment, absent clear evidence of congressional intent to the contrary. As we demonstrated above, there is no such clear evidence.
The fact, stressed by the dissent, that the conduct involved here occurred before the decision in Patterson is of no legal effect. It simply cannot be the law that retroactive application of a statute is governed by whether or not the parties reasonably, but mistakenly, believed that the law at the time of their conduct was what the law later became. One obvious problem with such a rule is that there is no way of determining in most cases what the parties mistakenly believed the law to be at the time of their conduct. Indeed, this is such a case. The dissent states, "because the new law was the same as what the parties reasonably understood the law to be before Patterson, there is no reason not to apply § 101 retroactively." Dissent at 45. Our colleague does not, however, explain how she knows what Group Health understood the law to be at the time of its termination of the contract with Gersman.
The Fifth Circuit dealt with this same argument in Uncle Ben's, and dispatched it quickly.
As a matter of law, the rule announced in Patterson applies retroactively to UBI's conduct in 1974. Lavender v. V. & B. Transmissions & Auto Repair, 897 F.2d 805, 806-07 (5th Cir.1990). Cf. James B. Beam Distilling Co. v. Georgia, — U.S. -, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991). UBI is just as entitled to the preservation of its substantive interests under this rule as litigants whose conduct occurred after Patterson was decided. Any other holding would require unwieldy distinctions between classes of litigants based on the degree to which they relied on the legal regime antedating the Civil Rights Act of 1991. We decline to embark on such an inquiry.
965 F.2d at 1374.
Other than substituting GHA for UBI and a citation from this Circuit — the original opinion in this case, 931 F.2d at 1565— for Lavender, we merely join the language of our sibling circuit. See also Luddington v. Indiana Bell Telephone Co., 966 F.2d at 229-30.
Nor do we share our dissenting colleague's apparent conclusion that the Fifth Circuit in Landgraf v. USI Film Products, 968 F.2d 427 (5th Cir.1992), retreated from its application of Bowen in Uncle Ben's. The Uncle Ben's panel concluded as we do today that the Supreme Court in Bennett impels us toward the conclusion that the Bowen presumption of prospective application of statutory amendments, not the Bradley presumption of retroactive application, applies in cases where the substantive law is changed. 965 F.2d at 1372-74. The language quoted from Landgraf by our colleague is not to the contrary. True, Judge Higgenbotham (also the author of the Uncle Ben's decision) did state for the court "the measure of manifest injustice under Bradley is not controlled by formal labels of substantive or remedial changes. Instead, we focus on the practical effects the amendments have upon the settled expectations of the parties." Id. 968 F.2d at 433. However, he did so, not in the context of determining which of the two conflicting presumptions applied, but rather to demonstrate that on the facts of the Landgraf case it did not matter. The amendments in question there would apply only prospectively in either event.
More specifically, the Landgraf panel was considering at that point whether § 102(a)(3), (b)(3), substantially expanding compensatory and punitive damage awards available in Title VII cases, would apply to pre-Act conduct. As the substantive-remedial distinction drawn in Uncle Ben's might lead to the conclusion that the Bradley presumption in favor of retroactivity would apply, Judge Higgenbotham was pointing out that even if it did, its own built-in exception for "manifest injustice" would lead to prospective application of the amendment.
Summary and Conclusion
It is the general rule that substantive statutory amendments do not apply to preamendment conduct. This holding is consistent with Bradley and Thorpe, which dealt with remedial and procedural amendments. The present case concerns a substantive amendment and pre-amendment conduct. The rights of the parties must be adjudicated as they were under the law prevailing at the time of the conduct. Therefore, we adopt our prior decision in Gersman v. Group Health Ass'n, Inc., 931 F.2d 1565 (D.C.Cir.1991). The decision of the District Court is
Affirmed.
. Appellants also claimed under the District of Columbia Human Rights Act, D.C.Code § 1-2501 et seq. Because the changes in the law prompting the Supreme Court to remand our earlier decision have no effect on the dismissal of that claim, we will not further discuss it.
. The three parties to which we refer are the two Houses necessary for bicameral enactment and the President necessary for presentment.
.Justice Scalia wrote a separate concurrence but expressly "agree[d] with the Court that general principles of administrative law suggest that . the Medicare Act . does not permit retroactive application of the . cost-limit rule." 488 U.S. at 216, 109 S.Ct. at 475 (Scalia, J., concurring).
.The Bradley Court did cite Greene as an example of a case where "manifest injustice" caused an exception to its perceived presumption of retroactive application. 416 U.S. at 716-17, 94 S.Ct. at 2019.
. We do not mean by this to imply that the district court in any fashion erred in following our prior language. Had the Court above us given as clear guidance in the choice between Bowen and Bradley as we gave the district court, we would without doubt be following it today, even if it were in dicta. On the other hand, we do not mean to imply affirmation of the Van Meter decision either. That case now pends before another panel of this Court. We do not have the full record before us, and they, not we, will of course determine the result in that controversy.
. We recognize that this is not a wholly satisfactory distinction. To call the change in Thorpe "procedural" as opposed to "substantive" ignores the proposition suggested by Justice Scalia in his Kaiser Aluminum concurrence that "Thorpe could not possibly have come out the way it did under prior law." 494 U.S. at 848-49, 110 S.Ct. at 1583. Nonetheless, given the present guidance from the Supreme Court, and the continued vitality of the two lines of authority, we see no other resolution. Though the substantive/procedural distinction is imperfect, it at least recognizes the Supreme Court's authority to interpret past and .present law, and offers a standard for resolving retroactivity disputes on objective grounds. Adopting the "reasonable expectations test" advocated by the dissent would only promote unpredictable and subjective analyses. How this distinction and the Bradley exception for "manifest injustice" play out in the context of such major, though arguably remedial, changes as the right to jury trial and expanded damages under § 102(b) and (c) of the 1991 Act is for another day and another case, perhaps Van Meter, supra.
. We would further note that it is far from altogether clear that the law before Patterson was universally perceived to be contrary to the Patterson holding. Every case the dissent cites from either the Supreme Court or this Circuit is offered for its dicta. There was apparently no holding upon which the parties could have relied, even if their reliance were relevant. See Luddington v. Indiana Bell Telephone Co., 966 F.2d at 229 ("the pre-Patterson 'legal regime' . was merely a set of lower-court decisions, constituting a stab in the dark concerning issues on which the Supreme Court had not yet ruled.").