James v. American International Recovery, Inc. (799 F. Supp. 1156, 1992)

ORDER

ROBERT H. HALL, District Judge.

This is a civil rights case brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. The case is currently before the court on: (1) Plaintiff’s Motion to Set Aside Magistrate’s Report and Recommendation [82-2]; (2) Plaintiff’s Motion for Leave to Alert Court to Recent Development Concerning the Retroactivity of the Civil Rights Act of 1991 [93-1]; (3) Defendant’s Motion to Alert Court to Recent Developments Concerning Non-retroactivity of the Civil Rights Act of 1991 [98-1]; and (4) Plaintiff’s Motion to Alter or Amend Judgment and Order filed December 3, 1991 [86-1].

The court: (1) DENIES as moot Plaintiff’s Motion to Set Aside Magistrate’s Report and Recommendation [82-1]; (2) GRANTS Plaintiff’s Motion for Leave to Alert Court to Recent Development Concerning the Retroactivity of the Civil Rights Act of 1991 [93-1]; (3) GRANTS Defendant’s Motion to Alert Court to Recent Developments Concerning Non-retroactivity of the Civil Rights Act of 1991 [98-1]; and (4) DENIES Plaintiff’s Motion to Alter or Amend Judgment and Order filed December 3, 1991 [86-1].

BACKGROUND

Plaintiff Colzie D. James was employed by Defendant American International Recovery, Inc. from approximately May, 1984 until her discharge on April 19, 1988. On February 15, 1989, Plaintiff commenced the instant lawsuit, alleging in her Complaint that Defendant discriminated against her on the basis of sex and race by harassing her on the job and ultimately terminating her employment. Specifically, Plaintiff in her Complaint alleged Defendant’s discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”) and 42 U.S.C. § 1981.

Thereafter, this case was referred to a Magistrate Judge sitting as a Special Master pursuant to 42 U.S.C. § 2000e-5(f)(5), Rule 53 of the Federal Rules of Civil Procedure, and Rule 920-2, Internal Operating Procedures of this court. See Parker v. Dole, 668 F.Supp. 1563 (N.D.Ga.1987) (Hall, J.) (holding that the referral of discrimination cases to Magistrate Judges is permissible and is in keeping with the purposes of Title VII).

On June 17, 1989, the United States Supreme Court issued its decision in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), which decision limited the scope of 42 U.S.C. § 1981. See discussion, infra p. 1161. Pursuant to Patterson, the Magistrate Judge in the instant case dismissed Plaintiff’s § 1981 claim. Because the dismissal of Plaintiff’s § 1981 claim left Plaintiff with only a Title VII claim, the Magistrate Judge also struck Plaintiff’s demand for jury trial. This case was tried before the Magistrate Judge on April 2-4, 1991. On November 1, 1991, the Magistrate Judge issued his Report and Recommendation recommending that Plaintiff’s Title VII claim be dismissed as unsupported by the evidence, and that judgment be entered in Defendant’s favor on all of Plaintiff’s claims.

On November 20, 1991, Plaintiff filed a Motion to Set Aside Magistrate’s Report and Recommendation. Plaintiff therein contended that due to the imminent passage of the Civil Rights Act of 1991, the Magistrate Judge’s dismissal of Plaintiff’s § 1981 claim, as well as his denial of her demand for jury trial of the matter, were in error. Thus, contended Plaintiff, this court should set aside and disregard the Magistrate's Report and Recommendation, reinstate Plaintiff’s § 1981 claim, and allow Plaintiff’s demand for jury trial of the matter.

On December 3, 1991, after fully reviewing the Magistrate Judge’s Report and Recommendation, as well as Plaintiff’s Motion to Set Aside, this court adopted the Magistrate Judge’s Report and Recommendation, dismissed Plaintiff’s Complaint, and entered judgment in Defendant’s favor with regard to all of Plaintiff’s claims. With regard to Plaintiff’s contention that the dismissal of her § 1981 claim and the denial of her demand for jury trial were in error due to the passage of the Civil Rights Act of 1991, this court specifically held: “The Civil Rights Act of 1991 was signed by the President and became effective on November 21, 1991. It does not apply to cases arising before the effective date of the Act.” Order dated Dec. 3, 1991.

Presently, Plaintiff has filed, in addition to her Motion to Set Aside Magistrate’s Report and Recommendation [82-1], which this court failed specifically to deny, a Motion to Alter or Amend Judgment and Order filed December 3, 1991 [86-1], as well as a Motion for Leave to Alert Court to Recent Development Concerning the Retroactivity of the Civil Rights Act of 1991 [89-1]. In addition, Defendant has filed a Motion for Leave to Alert Court to Recent Developments Concerning Non-retroactivity of the Civil Rights Act of 1991 [98-1]. The court will consider each Motion separately.

DISCUSSION

I. Plaintiffs Motion to Set Aside Magistrate’s Report and Recommendation

Plaintiff filed this Motion subsequent to the Magistrate Judge’s issuance of his Report and Recommendation in the instant case. Although this court indeed considered Plaintiffs Motion prior to the court’s issuance of its December 3, 1991 Order adopting the Magistrate’s Report and Recommendation, the court in that December 3, 1991 Order did not expressly state that it was denying Plaintiff’s Motion to Set Aside. As a result, Plaintiff’s Motion apparently was never expressly acted upon by this court, although the practical, and intended, effect of the court’s December 3, 1991 Order in fact was to deny Plaintiff’s Motion.

Nevertheless, for the sake of clarity, the court hereby expressly states that it DENIES as moot Plaintiff’s Motion to Set Aside. That Motion, aside from having been rendered moot by this court’s December 3, 1991 Order, also advances arguments virtually identical to those presently being reasserted by Plaintiff in her Motion to Alter or Amend this Court’s December 3, 1991 Judgment and Order. See infra, p. 1160.

II. Plaintiffs and Defendant’s Motions for Leave to Alert Court to Recent Developments

In these Motions, both Plaintiff and Defendant request leave to alert this court to recent developments with regard to the currently much debated issue of whether the Civil Rights Act of 1991 is to be applied retroactively so as to allow civil rights plaintiffs with cases currently pending before the court the additional relief provided by the Act. This indeed presents a very difficult question, and one regarding which recent court decisions evidence a marked uncertainty and disagreement. See cases cited, infra p. 1162 n. 6. Accordingly, this court welcomes the input of the parties as regards recent developments in this area, the landscape of which literally changes on a daily basis. As a result, the court as an initial matter GRANTS both Plaintiff’s and Defendant’s Motions to. Alert Court to Recent Developments.

III. Plaintiffs Motion to Alter or Amend Judgment and Order filed December 3, 1991

Plaintiff, pursuant to Federal Rule of Civil Procedure 59(e), in this Motion requests that the court alter or amend its Judgment and Order, filed December 3, 1991, in which the court adopted the Magistrate Judge’s Report and Recommendation, dismissed Plaintiff’s Complaint, and entered judgment in Defendant’s favor on all of Plaintiff’s claims. In this Motion, Plaintiff in essence reasserts the arguments previously submitted in support of her Motion to Set Aside Magistrate’s Report and Recommendation, which has been denied by this court. See supra, p. 1160. Specifically, Plaintiff bases her Motion upon her argument that the Civil Rights Act of 1991 should be retroactively applied to her case, so as to allow reinstatement of her previously dismissed § 1981 claim, as well as the allowance of her demand for jury trial of this matter. Thus, Plaintiff requests that this court alter or amend its December 3, 1991 Judgment and Order by rejecting the Magistrate’s Report and Recommendation, reinstating Plaintiff’s § 1981 claim, and reinstating and granting Plaintiff’s demand for jury trial of the instant matter.

In considering Plaintiff’s Motion, the central issue before the court is whether certain provisions of the Civil Rights Act of 1991 (“1991 Act”), enacted on November 21, 1991, are to be applied retroactively to cases pending before the court at the time of the statute’s enactment.

A. The 1991 Civil Rights Act

The 1991 Act states that among its purposes are “[t]o amend the Civil Rights Act of 1964 to strengthen and improve Federal civil rights laws, to provide for damages in cases of intentional employment discrimination, [and] to clarify provisions regarding disparate impact actions____” Pub.L. No. 102-166, 105 Stat. 1071 (1991), “Synopsis.” Moreover, § 3 of the Act provides:

SEC. 3. PURPOSES

The purposes of this Act are—

(1) to provide appropriate remedies for intentional discrimination and unlawful harassment in the workplace;

(2) to codify the concepts of “business necessity” and “job related” enunciated by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424 [91 S.Ct. 849, 28 L.Ed.2d 158] (1971), and in other Supreme Court decisions prior to Wards Cove Packing Co. v. Atonio, 490 U.S. 642 [109 S.Ct. 2115, 104 L.Ed.2d 733] (1989);

(3) to confirm statutory authority and provide statutory guidelines for the adjudication of disparate impact suits under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); and

(4) 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.

Id. at § 3.

Toward these ends, the 1991 Act, among other things, provides more protection to the victims of discrimination by amending the relevant law in reference to damages, jury trials and burdens of proof. Chiefly, the 1991 Act reverses the 1989 Supreme Court holding in Patterson v. McLean Credit Union, cited supra, in which the Supreme Court substantially restricted the remedies available to a civil rights plaintiff. In Patterson, the Court defined 42 U.S.C. § 1981 as prohibiting discrimination only in the making of a contract, rather than in any subsequent conduct of the parties in the course of the contractual relationship. As a result, the Court held that a plaintiff alleging discrimination in the course of an employment relationship ordinarily could not maintain an action under § 1981. The practical result of the Court’s decision in Patterson was to severely restrict the causes of action and remedies available to a civil rights plaintiff. Indeed, many civil rights plaintiffs pursuing claims under both Title VII and § 1981 were, following Patterson, limited to claims under Title VII.

In response to this situation, Congress drafted § 101(2)(b) of the Act, which provides:

Section 1977 of the Revised Statutes (42 U.S.C.1981) is amended—

(2) by adding at the end the following new subsections:

“(b) 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.

Also at issue in the instant case is § 102 of the 1991 Act. Section 102(a) and (b) make available to a plaintiff compensatory and punitive damages for intentional violations of Title VII, 42 U.S.C. § 2000e (1988), the Americans with Disabilities Act of 1990, Pub.L. No. 101-336, 104 Stat. 327, 42 U.S.C. § 12101 et seq. (1990), and § 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791 (1988). The Act does, however, place a cap on punitive damages recoverable by the plaintiff, based upon the number of employees employed by the defendant. See 1991 Act, § 102(b)(3). Subsequent to Patterson and prior to enactment of the 1991 Act, a plaintiff proceeding under one of these statutes was entitled to recover only equitable remedies in the form of back pay and injunctive relief. Section 102(c) of the 1991 Act provides that a plaintiff seeking compensatory and punitive damages under subsections (a) and (b) enjoys a right to a jury trial if so demanded.

Plaintiff in the instant case contends that §§ 101(2)(b) and 102 of the Act should be retroactively applied to her case, resulting in this court’s reconsideration of its December 3, 1991 Judgment and Order, the setting aside of the Magistrate’s Report and Recommendation, the reinstatement of Plaintiff’s § 1981 claim, and the allowance of a jury trial of the instant matter. In so arguing, Plaintiff places squarely before this court the much debated issue of whether those sections of the 1991 Act should be retroactively applied so as to allow Plaintiff’s requested relief.

As numerous courts have recognized, this is an issue riddled with conflict, not only within this district and circuit, but extending as far as the Supreme Court of the United States. The various courts recently faced with this question have come down on all conceivable sides of the issue, with the result that judicial opinions generated at all levels rely upon conflicting precedent to reach equally conflicting results, some courts acknowledging the obvious conflict and confusion, others sweeping it away under one logical guise or another as inapplicable to the specific case at hand.

This court sets forth in this opinion to address the conflict directly. As an initial matter, the court apologizes for the length and rather involved nature of the following analysis. However, this is an issue which is not only riddled with conflict, but also of great importance, to both the judiciary and legislative branches of our government. It therefore is this court’s opinion that it is not only desirable, but also necessary, for the courts to proceed as expeditiously as possible toward an eventual resolution of this issue of basic statutory construction, which indeed cuts to the very heart of the legislative-judicial relationship.

B. Judicial Conflict Regarding Retroactivity

The course of development and general nature of the precedential conflict at issue in this lawsuit is by now well known to all who have been faced with the question currently before this court. The court therefore will struggle for brevity in outlining those underlying considerations. First, it is well established that in determining whether a statute will be applied retroactively or prospectively only, the first duty of the court is to look to the language of the statute itself. Dawson Chemical Co. v. Rohm & Haas Co., 448 U.S. 176, 180, 100 S.Ct. 2601, 2605, 65 L.Ed.2d 696 (1980). “Absent a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980).

Where the language of the statute is unclear, the court must examine the statute’s legislative history. The Supreme Court has clearly stated that “where the congressional intent is clear, it governs.” Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 837, 110 S.Ct. 1570, 1577, 108 L.Ed.2d 842 (1990).

Where both the statute’s language and its legislative history are unclear with regard to retroactivity, the Supreme Court has fashioned certain well defined presumptions to determine the applicability of new laws to pending cases. Unfortunately, the Supreme Court in so doing has developed two distinct and conflicting lines of cases which weigh upon this court’s decision. One line of cases is represented by the Supreme Court’s decision in Bradley v. Richmond School Bd., 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), and the other by the Court’s decision in Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988).

In Bradley, the Supreme Court was called upon to determine the propriety of retroactively applying a newly enacted civil rights attorney’s fees statute to a pending school desegregation case. Specifically, the Court was faced with the determination of whether § 718 of Title VII of the Emergency School Aid Act, 20 U.S.C. § 1617 (Education Amendments of 1972), which authorized an award of attorney’s fees to a prevailing plaintiff where no such authorization had existed previously, could be retroactively applied to a rather protracted case which had been in the courts for some thirteen years, and the appeal of which was pending at the time of § 718’s enactment. Relying primarily upon the Court’s earlier decisions in Thorpe v. Housing Auth. of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969) and United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L.Ed. 49 (1801), the Court in Bradley concluded 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.” 416 U.S. at 711, 94 S.Ct. at 2016.

According to the Court in Bradley, the determination of whether “manifest injustice” would result from the retroactive application of the provision in question depends upon the court’s analysis of the following three factors: “(1) the nature and identity of the parties, (2) the nature of their rights, and (3) the nature of the impact of the change in law upon those rights.” Id. at 717, 94 S.Ct. at 2019.

In Bowen, the Supreme Court was called upon to determine the propriety of retroactive application of certain newly adopted Department of Health and Human Services (“DHHS”) regulations to a pending case. Such retroactive application, if permitted, would have necessitated the return to the government of reimbursement payments given to health care providers pursuant to the Medicare Act, 42 U.S.C. § 1395x(v)(l)(A). Rather than following Bradley, the Court in Bowen looked to another line of its earlier decisions, including Greene v. United States, 376 U.S. 149, 160, 84 S.Ct. 615, 621, 11 L.Ed.2d 576 (1964), Claridge Apartments Co. v. Comm’r, 323 U.S. 141, 164, 65 S.Ct. 172, 174, 89 L.Ed. 139 (1944), Miller v. United States, 294 U.S. 435, 439, 55 S.Ct. 440, 441, 79 L.Ed. 977 (1935), and United States v. Magnolia Petroleum Co., 276 U.S. 160, 162-163, 48 S.Ct. 236, 237, 72 L.Ed. 509 (1928). After examining that line of precedent, the Court in Bowen concluded, “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.” 488 U.S. at 208, 109 S.Ct. at 471. Accordingly, the Court in Bowen concluded that retroactive application of the DHHS regulations in that case was impermissible.

Under both Bradley and Bowen, where the language of the statute is clear, that statutory mandate is to be followed. Likewise, where the legislative history evidences a clear legislative intent with regard to retroactivity, that legislative intent is to be honored. Where both the statutory language and the legislative history are unclear, under Bowen, the presumption is against retroactive application. In contrast, under Bradley, the presumption is in favor of retroactive application, the only exception being if retroactive application of the statute would be manifestly unjust. Clearly, therefore, in eases where the statute itself does not address retroactivity, and the legislative history is unclear, Bradley and Bowen oftentimes mandate opposite results, the only exception being cases falling within Bradley’s “manifest injustice” exception.

In Kaiser Aluminum and Chemical Corp. v. Bonjorno, cited supra, the Supreme Court acknowledged the “apparent tension” between these two lines of precedent but refused to reconcile the conflict. 494 U.S. at 837, 110 S.Ct. at 1576. The problem is well stated in a concurrence by Justice Scalia in which he states:

I regret that the court has chosen not to respond to the conflict between two relatively recent cases saying that unless there is specific indication to the contrary a new statute should be applied retroactively absent “manifest injustice” ..., and the many cases, old and new which have said that unless there is specific indication to the contrary the new statute should be applied only prospectively. In the rules of construction that they announce, if not in the results they produce, these two lines of cases are not merely, as the [majority of the] Court confesses, in “apparent tension,” they are in irreconcilable contradiction, and have spawned Courts of Appeals opinions to match.

Id.

Unfortunately, and in accordance with Justice Scalia’s remarks in Bonjomo, the conflict in the Supreme Court is reflected in decisions of the Eleventh Circuit Court of Appeals, the pronouncements of which necessarily determine the course of decision to be taken by this court. That is, the Eleventh Circuit has followed both lines of Supreme Court precedent on this issue while at the same time acknowledging the resulting confusion. See United States v. Peppertree Apartments, 942 F.2d 1555, 1561 n. 3 (11th Cir.1991), petition for cert. granted and judgment vacated sub nom. Bailes v. United States, — U.S. —, 112 S.Ct. 1755, 118 L.Ed.2d 419 (1992); Wright v. Director, Fed. Emergency Mgt. Agency, 913 F.2d 1566, 1573 (11th Cir.1990). In Wright, the Court stated:

[T]he principle affirmed in Bradley has generated some confusion in the federal courts, since it appears to conflict with the ... long-standing rule of statutory construction, restated in Bowen, that favors the prospective application of statutes and regulations.

913 F.2d at 1573.

First, in Wright, the Eleventh Circuit considered the propriety of retroactive application of a newly promulgated regulation of the Federal Emergency Management Agency. After acknowledging and fully discussing both the Bowen and Bradley presumptions, the Court in Wright stated:

[W]e agree with the Supreme Court’s pronouncement that statutes (and regulations) “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.”

Id. at 1574 (quoting Magnolia, cited supra, 276 U.S. at 162-63, 48 S.Ct. at 237). Thus, the Court in Wright adopted the Bowen approach, and as a result found retroactive application to be impermissible in that case.

Inexplicably, the Eleventh Circuit the very next year, in deciding Peppertree, unequivocally held that pursuant to Bradley, “ ‘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.’ ” 942 F.2d at 1560-61 (quoting Bradley, 416 U.S. at 711, 94 S.Ct. at 2016). Although recognizing in a footnote the potential conflict with both Bowen at the Supreme Court level and Wright within the circuit, the Court stated in the same footnote, “This circuit has relied upon the Bradley analysis to determine the retroactive application of statutory changes.” Id. at 1561 n. 3 (citing Fed’l Deposit Ins. Corp. v. 232, Inc., 920 F.2d 815, 818 n. 4 (11th Cir.1991)). Thus, concluded the Court in Peppertree, “unless otherwise directed by the United States Supreme Court or the Eleventh Circuit en banc, we are bound by precedent to apply the Bradley analysis.” Id. (citing United States v. Thomas, 916 F.2d 647, 652 n. 6 (11th Cir.1990)).

In Peppertree, the government alleged that the defendants had disbursed funds received from the Department of Housing and Urban Development (“HUD”) in violation of a regulatory agreement between the parties. Specifically at issue in Peppertree was the retroactive application of a damages statute enacted subsequent to the defendants’ alleged violation of the regulatory agreement, so as to allow the government to recover double damages in that case. After determining that that case did not fall within the Bradley analysis’ “manifest injustice” exception, the Court found retroactive application of the damages statute in question to be appropriate.

The Peppertree decision was also based upon the Court’s recognition that “[statutory changes that are remedial in nature apply retroactively.” Id. at 1560 (citing Lussier v. Dugger, 904 F.2d 661, 665 (11th Cir.1990) (“Statutory changes that are procedural or remedial in nature apply retroactively.”) (quoting United States v. Vanella, 619 F.2d 384, 386 (5th Cir.1980)) (also citing United States v. Fernandez-Toledo 749 F.2d 703, 705 (11th Cir.1985) (“[Cjases in this circuit have held that new statutes that affect antecedent rights will not apply retroactively while those that affect only procedure or remedy will apply retroactively.”)). The Court in Peppertree concluded that since the statute in question affected only remedy, it was to apply retroactively.

Thus, the Eleventh Circuit, through Wright and Peppertree, has in effect chosen as the law to be applied in this circuit two directly conflicting lines of precedent handed down by the Supreme Court. As an initial matter, it is well established that one circuit panel may not overrule the decision of a prior circuit panel. See United States v. Hamblin, 911 F.2d 551, 554 (11th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 2241, 114 L.Ed.2d 482 (1991) (three-judge circuit panel is bound by circuit precedent even if such precedent has not been followed or cited with approval since its publication); United States v. Machado, 804 F.2d 1537, 1543 (11th Cir.1986) (“Only a decision by this court sitting en banc or by the United States Supreme Court can overrule a prior panel decision.”); Robinson v. Tanner, 798 F.2d 1378, 1383 (11th Cir. 1986), cert. denied, 481 U.S. 1039, 107 S.Ct. 1979, 95 L.Ed.2d 819 (1987) (“[0]ne panel of this court may not overrule the decision of a prior panel.”) (citing Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc) (“The old Fifth [Circuit] followed the absolute rule that a prior decision of the circuit (panel or en banc) could not be overruled by a panel but only by the court sitting en banc. The Eleventh Circuit decides in this case that it chooses, and will follow, this rule.”)); Druid Hills Civic Ass’n v. Fed. Highway Admin., 772 F.2d 700, 716 n. 18 (11th Cir.1985), cert. denied, 488 U.S. 819, 109 S.Ct. 60, 102 L.Ed.2d 38 (1988) (“[0]nly this court sitting en banc or the United States Supreme Court can overrule precedent binding on this court.”) (citing Julius v. Johnson, 755 F.2d 1403, 1404 (11th Cir.1985) (per curiam)). Rather, where two circuit court decisions contain conflicting rules of law, this court is bound by both circuit decisions. Ga. Ass’n of Retarded Citizens v. McDaniel, 855 F.2d 794, 797 (11th Cir.1988).

Nevertheless, decisions issued by the circuit court sometimes conflict, thus requiring lower courts such as this one to decide which precedent to follow. The rule within the Eleventh Circuit is that in the event there is an intra-circuit conflict on a given issue, the district court is required to follow Supreme Court authority “or the weight of authority within the circuit.” United States v. Hobson, 672 F.2d 825, 827 (11th Cir.), cert. denied, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d 166 (1982). See also, McDaniel, 855 F.2d at 797; Dorse v. Armstrong World Indus., 798 F.2d 1372, 1376 (11th Cir.1986); Gresham Park Community Org. v. Howell, 652 F.2d 1227, 1235 (5th Cir.1981). When there is no clear weight of authority within the circuit, the court must “resort to common sense and reason” in deciding which rule to follow. Hobson, 672 F.2d at 827. See also, McDaniel, 855 F.2d at 797; Dorse, 798 F.2d at 1376.

Thus, courts such as this one currently find themselves in a very confusing situation, and one which offers virtually no hope, at least in the near future, of the arrival of either any clear rules of statutory construction or any real consistency in outcome. The Supreme Court has issued two lines of precedent which seemingly are in direct conflict, at least in a substantial number of cases. As a result, the Eleventh Circuit likewise has issued two lines of precedent to which this court is bound. Finally, the Eleventh Circuit has mandated that, in determining which precedent to follow, lower courts faced with this situation should apply “common sense and reason” in determining which is the better precedent. This court respectfully submits that it wonders whether, viewed together, these tests enumerated by the Supreme Court and the Eleventh Circuit, if submitted to the scrutiny generally applied to statutes, would be deemed void for vagueness. That is, these tests, viewed together, seem to this court to offer no clear precedent for the instant disposition whatsoever.

C. Analysis of the Instant Situation

1. Statutory Language of the 1991 Act

As stated before, any process of statutory construction necessarily begins with the language of the statute itself. With regard to the 1991 Act, the text of the Act does not address whether it is to be applied retroactively or prospectively only. Section 402(a) provides simply that, “[e]xcept as otherwise specifically provided, this Act and the amendments made by this Act shall take effect upon enactment.” Nevertheless, the mere fact that the Act is to become effective “upon enactment” says nothing about whether, following such enactment, the Act’s provisions are to be applied to conduct occurring, and cases commenced, prior to that enactment, or only to conduct occurring and cases commenced subsequent to enactment.

In the instant case, Defendant argues that the express language of § 402(a) itself indicates that the statute is not to be applied retroactively. Defendant cites the Court’s recent decision in Holman v. Macy’s South, No. 1:91-CV-2324-JTC, 57 Fair Empl.Prac.Cas. (BNA) 1405, 1992 WL 117107 (N.D.Ga. Jan. 8, 1992) (Harper, M.J.). In Holman, the Court relied upon the Eleventh Circuit decision in Wilson v. Gen. Motors Corp., 888 F.2d 779 (11th Cir.1989), in holding that the language, “effective upon the date of enactment”, employed in § 402(a) should be interpreted as indicating that the Act is to be applied only to conduct occurring after that date. Holman, 57 Fair Empl.Prac.Cas. (BNA) at 1405 (citing Wilson, 888 F.2d at 781). Nevertheless, the court finds this argument unpersuasive. Rather, this court finds that the phrase “effective upon the date of enactment” says nothing about whether the Act is to be applied retroactively to cases pending at the time of its enactment.

As a second grounds for arguing that the language of the Act itself indicates that it is to be applied prospectively only, Defendant contends that the Act’s own definition of the term “complaining party”, which is found in § 104(Z) of the Act, indicates that the Act is to be applied prospectively only. Section 104(i) provides that “[t]he term ‘complaining party’ means the Commission, the Attorney General, or a person who may bring an action or proceeding under this title.” Here, Defendant argues that the phrase “a person who may bring an action” indicates that plaintiffs who have already brought actions are to be excluded from the Act’s coverage. Defendant quotes Van Meter v. Barr, 778 F.Supp. 83, 85 (D.D.C.1991) (Gesell, J.), for the proposition that “[b]y its terms, the statute seems to contemplate that only plaintiffs who have not yet brought their actions are entitled to invoke the new Act.” The court realizes that the Court in Van Meter found Defendant’s present argument persuasive, and refused to allow retroactive application of the Act, seemingly on that basis alone. Nevertheless, this court is unpersuaded. Given the many ambiguities in both the statutory language and the legislative history in the instant case, see infra, the court finds that basing its present decision on the mere use of the phrase “may bring” in a single definition in the Act not only would ignore the reality of this very confused situation, but also would require that the court hang its hat on mere technicalities of construction. This the court refuses to do.

The only two additional sections even addressing the retroactivity issue are §§ 109 and 402(b) of the Act. First, § 109 specifically overrules Equal Employment Opportunity Comm’n v. Arabian Am. Oil Co., 499 U.S. —, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991), by providing that Title VII applies to United States citizens employed in foreign countries. Subsection (c) of § 109 provides that “[t]he amendments made by [§ 109] shall not apply with respect to conduct occurring before the date of the enactment of this act.” 1991 Act, § 109(c).

Second, § 103 of the Act specifically overrules Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989). Due to the fact that Wards Cove had been vigorously litigated before the courts for some 24 years, interested parties sought to obtain extra protection from the retroactive application of § 103 to disturb and hinder the progress of that lengthy litigation. In response, § 402(b) of the Act was drafted, its sole purpose being to provide to the Wards Cove Packing Company additional protection from any retroactive application of § 103 of the Act to that ongoing litigation. See 137 Cong.Rec. S15963 (daily ed. Nov. 5, 1991) (statement of Sen. Kennedy) (“[Section 402(b) ] only keeps the bill from applying to the parties in the Wards Cove case itself____”); 137 Cong.Rec. S15478 (daily ed. Oct. 30, 1991) (interpretive memorandum submitted by Sen. Dole) (“At the request of the Senators from Alaska, section [402(b) ] specifically points out that nothing in the Act will apply retroactively to the Wards Cove Packing Company, an Alaska company that spent 24 years defending against a disparate impact challenge.”). Specifically, § 402(b) provides:

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.

1991 Act, § 402(b). Section 402(b) was added to the third version of the Senate bill that eventually became the 1991 Act, S. 1745.

This court recognizes the potential for arguing, as Plaintiff does here, that since §§ 109(c) and 402(b) of the Act specifically except a special category of cases from retroactive application, the remaining portions of the Act must by implication apply retroactively. Nevertheless, the court rejects that argument. Both § 109(c) and § 402(b) by their express language provide for very limited application, § 109(c) applying strictly to claims asserted under § 109 of the Act, and § 402(b) applying strictly to the Wards Cove litigation.

With regard to § 402(b) specifically, the statements made by various Senators as well as Representatives clearly indicate that both sides of Congress intended for that section to apply to the Wards Cove litigation alone, and furthermore for § 402(b) not to be construed to speak to the intended application of the Act as a whole. In the Senate, Senator Danforth expressed his view that § 402(b)

is intended only to provide additional assurance that the provisions of the bill will not be applied to certain cases that fit the provisions of that subsection. It should not be read in derogation of the sponsors’ intention not to provide for retroactive effect or application as expressed in subsection [402(a) ] of the bill.

137 Cong.Rec. S15483 (daily ed. Oct. 30, 1991). Likewise, Senator Murkowski, who introduced § 402(b), stated:

The inclusion of language regarding this case [Wards Cove ] should not be interpreted as a precedent for any other case. Nor should it be viewed as creating an implication regarding whether or not this legislation applies retroactively generally. It is to be interpreted as a congressional determination that regardless of how the general retroactivity issue is resolved, the Wards Cove case is one in which it is clear that this legislation should not apply retroactively.

Id. at S15493 (daily ed. Oct. 30, 1991). In addition, Senator Dole introduced into the Congressional Record an interpretive memorandum explaining that it was not Congress’ intent that § 402(b) be interpreted to indicate that the rest of the Act should apply retroactively. That memorandum states:

Absolutely no inference is intended or should be drawn from the language of this amendment to section 402 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. Such retroactive application of the Act and its amendments is not intended; on the contrary, the intention of this amendment to section 402 is simply to honor a commitment to eliminate every shadow of a doubt as to any possibility of retroactive application to the case involving the Wards Cove Company.

Id. at S15953 (daily ed. Nov. 5, 1991).

On the House side, Representative Hyde stated:

[ Wards Cove ] has been in the court for 24 years and someday it ought to be closed, but this bill is prospective and therefore Wards Cove is not affected by it____ Now, the offending amendment that was put in by the Senate is unnecessary. It is surplusage. It does not accomplish or achieve a thing and it really should not be the subject of so much excitation.

137 Cong.Rec. H9512 (daily ed. Nov. 7, 1991). Thus, in light of the numerous statements by various Senators and Representatives alike, to the effect that § 402(b) does not speak to the retroactivity of the Act as a whole, the court declines to adopt Plaintiff’s position to the contrary.

On the other hand, the court is also aware of the potential for arguing, as Defendant does here, that since Congress failed to include a provision expressly authorizing retroactive application, they necessarily must have intended for the Act to have prospective effect only. Nevertheless, the court is equally unpersuaded by Defendant’s proposed stance. As the Seventh Circuit Court of Appeals has recognized, Defendant’s argument is negated by the fact that although the Bush Administration submitted a proposed bill which contained explicitly prospective language, Congress expressly declined to adopt that proposal. Mozee v. Am. Commercial Marine Serv. Co., 963 F.2d 929 (7th Cir.1992).

In addition, Plaintiff apparently argues that since Congress in enacting the 1991 Act expressly overruled the Supreme Court decision in Patterson, this court is precluded from finding that the Act applies prospectively only, but rather is required to apply the Act retroactively. Here Plaintiff argues:

In passing the 1991 Act Congress was correcting and clarifying what the scope of Section 1981 contained____ Therefore, there is no need to determine if the provisions of the 1991 Act should be applied retroactively, as Congress has stated, in effect, that the Patterson decision was erroneous, and that Section 1981 applies, and was intended to apply to terminations at all times previous to Patterson, and afterwards. Clearly, the separation of powers doctrine is the governing principle in rendering a decision with regard to the scope of Congressional intent.

Plaintiff’s Reply to Defendant’s Supplemental Brief in Opposition to Plaintiff’s Motion to Alter or Amend Judgment or Order entered December 3, 1991, filed April 2, 1992 [96-1], pp. 9-10. The court finds Plaintiff’s argument to be totally without merit. The mere fact that Congress enacts legislation overruling a line of Supreme Court decisions says nothing about whether that new legislation is to be applied retroactively or prospectively only. Plaintiff’s concern with the separation of powers doctrine is here misplaced. Indeed, Plaintiff’s proposed interpretation would itself turn the separation of powers doctrine on its head, by in effect vesting Congress with the power to formulate legal precedent binding upon the courts. This is clearly prohibited by the separation of powers doctrine.

Having carefully examined the above provisions of the 1991 Act, this court agrees with the numerous courts previously conducting the same analysis which have found that the statutory language of the Act is unclear with regard to the retroactivity issue. See, e.g., Mozee v. Am. Commercial Marine Serv. Co., cited supra, 963 F.2d at 933 (“[W]e cannot divine from the Act’s language whether Congress intended the Act to apply retroactively to pending cases.”); Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992) (at most, § 402(a) “creates (or preserves) an ambiguity as to whether Congress intended the Act to be generally retroactive.”); Vogel v. City of Cincinnati, 959 F.2d 594, 58 Fair Empl.Prac.Cas. (BNA) 402 (6th Cir.1992) (“The 1991 [A]ct, on its face, does not make clear whether it should [be] applied retroactively or prospectively.”); Bailey v. Am. Int’l Adjustment Co., Inc., Civ.Action No. 1:91-cv-1524-RLV (N.D.Ga. April 20, 1992 (Vining, J.), Order at 2 (the language of the Act is not clear with regard to retroactivity); Glanton v. Henkel Chem. Corp., Civ.Action No. 4:91-cv-119-HLM (N.D.Ga. April 2, 1992) (Murphy, J.), Order at 3 (same); Curtis v. Metro Ambulance Serv., Inc., Civ.Action No. 1:89-CV-1867-JOF (N.D.Ga. March 25, 1992) (Forrester, J.), Order at 4 (same); Long v. Carr, 784 F.Supp. 887, 889 (N.D.Ga.1992) (Freeman, J.), (same).

2. Legislative History of the 1991 Act

In light of the ambiguous language of the 1991 Act, the court must next examine its legislative history in an attempt to identify “clear legislative intent” regarding the retroactivity issue. With regard to whether the 1991 Act’s legislative history evidences a clear legislative intent regarding retroactivity, the courts, once again, come down on both sides of the issue. For example, compare Stevens v. Mann, No. H-90-2175, 57 Fair Empl.Prac.Cas. (BNA) 1290, 1292, 1992 WL 101764 (S.D.Tex.1992) (Harmon, J.) (1991 Act’s language and legislative history indicate a congressional intent not to retroactively apply its provisions) with Mozee, 963 F.2d at 934 (“A clear indication of congressional intent cannot be deciphered from the legislative history or the 1991 Act’s language.”); Fray, 960 F.2d at 1376 (legislative history indicates no clear congressional intent regarding retroactivity); Vogel, 959 F.2d at 598 (“The legislative history provides no guidance on [the] question [of retroactivity].”). Courts in this district have consistently found the Act’s legislative history to be unclear with regard to the issue of retroactivity. See, e.g., Glanton, Order at 4 (“[Congressional intent concerning the retroactivity of this new law is anything but clear.”); Curtis, Order at 6 (“[T]he legislative history of the Act concerning retroactivity is inconclusive.”); Long, 784 F.Supp. at 889 (“[N]either the language of the Act, nor the legislative history explicitly indicates whether the Act should apply retroactively.”). Nevertheless, in light of the divergent findings of the various courts on this issue, this court feels compelled to conduct its own independent analysis of the legislative history in question.

In 1990, Congress passed an initial civil rights bill overruling Patterson and certain Supreme Court Title VII decisions. This bill specifically provided for retroactive application to conduct occurring prior to its enactment. The President vetoed the 1990 bill, citing, inter alia, the bill’s “unfair retroactivity rules.” 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). Congress’ attempted override failed.

The following year, Congress again took up this subject, and the House again passed a bill overruling Patterson. This second bill likewise expressly provided for retroactive application. In the Senate, bipartisan sponsors drafted a compromise bill, S.1745, during the summer of 1991. In drafting this compromise bill, the sponsors, realizing that the President would not sign a bill expressly providing for retroactive application, deleted the retroactivity provisions. See 137 Cong.Rec. S15503-12 (daily ed. Oct. 30, 1991), S.1745, § 402. Subsequently, S.1745 passed both the Senate and House, and became law when the President signed it two weeks later, on November 21, 1991. See President’s Signing Statement, 1991 U.S.C.C.A.N., Vol. 11, p. 768, 27 Weekly Comp.Pres.Doc. 1701 (Nov. 25, 1991).

Although there were no legislative committee reports explaining S.1745, the congressional floor debates were extensive and involved vigorous participation by both proponents and opponents of retroactivity. Apparently, the only thing these two congressional factions did agree upon with regard to retroactivity was that Congress was leaving it “to the courts to determine the extent to which the bill will apply to cases and claims that are pending on the date of enactment.” 137 Cong.Rec. S15485 (daily ed. Oct. 30, 1991) (statement of Sen. Kennedy); 137 Cong.Rec. S15963 (daily ed. Nov. 5, 1991) (statement of Sen. Kennedy). Although they agreed on the fact that they were leaving this decision to the courts, congressional proponents and opponents of retroactivity, not surprisingly, vigorously disagreed as to how the courts should interpret this “congressional abdication.” Fray, 960 F.2d at 1376. The Court in Fray characterized Congress’ ensuing construction of the legislative history as follows:

Demonstrating a sophisticated understanding of how judges dissect legislative history, congressional proponents of retroactivity argued that Bradley’s presumption of retroactivity would of course apply, while opponents argued with equal vigor that [Bowen ]’s presumption of non-retroactivity would carry the day. The opposing sides also placed conflicting interpretive legal memoranda in the legislative record.

Id.

Indeed, these conflicting opinions are reflected in the various contributions to the Congressional Record submitted by individual members of Congress participating in the floor debates. In the Senate, the Republican view, expressed by Senator Dan-forth, was that the Act would apply prospectively only, see 137 Cong.Rec. S15483 (daily ed. Oct. 30, 1991), while the Democratic view, expressed by Senator Kennedy, was that the Act would apply retroactively. See 137 Cong.Rec. S15485 (daily ed. Oct. 30, 1991); 137 Cong.Rec. S15963 (daily ed. Nov. 5, 1991). The same divergence of opinion was expressed in the House of Representatives. See 137 Cong.Rec. H9548 (daily ed. Nov. 7, 1991) (statement of Rep. Hyde) (“[T]he Act and the amendments made by the Act ... will not apply to cases arising before the effective date of the Act.”); 137 Cong.Rec. H9530 (daily ed. Nov. 7, 1991) (statement of Rep. Edwards) (“The intent of the sponsors is that ... the provisions of the bill be applied to pending cases except where the bill expressly provides otherwise.”). Finally, Senator Dan-forth himself stated that courts interpreting the Act should not look to the numerous and inconsistent statements by legislators, but rather should look to the language of the statute and should apply the appropriate rules of construction. See 137 Cong.Rec. S15325 (daily ed. Oct. 29, 1991) (“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 1991 Act].”).

This court concludes, as have so many of its honorable colleagues, that the 1991 Act’s legislative history is hopelessly ambiguous with regard to whether the Act was intended to apply retroactively or prospectively only. See, e.g., Mozee, 963 F.2d at 934 (“A clear indication of congressional intent cannot be deciphered from the legislative history or the 1991 Act’s language.”); Fray, 960 F.2d at 1376 (legislative history not clear on issue of retroactivity); Vogel, 959 F.2d at 597 (same); Bailey, Order at 2 (same); Curtis, Order at 6-7 (same); Long, 784 F.Supp. at 889 (same). See also, Van Meter, 778 F.Supp. at 84 (“[T]he 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.”). Indeed, perhaps the only clear consensus to emerge from the legislative history is that the 1991 Act passed with agreement on all issues except that of retroactivity. See 137 Cong.Rec. S15483 (daily ed. Oct. 30, 1991) (interpretive memorandum submitted by principal sponsors Senators Danforth and Kennedy showing agreement on every issue except retroactivity).

Again, the court is aware of the possible argument that since Congress in the 1991 Act failed to include a provision specifically authorizing retroactive application, which certainly Congress knows how to do, and indeed has done in numerous prior statutes, they necessarily must have intended that the Act be applied prospectively only. Again, however, the court finds this argument to be negated by the fact that Congress expressly declined to adopt a proposed bill, submitted by the Bush Administration, which expressly provided for prospective only application. See supra p. 1169 and n. 11.

The court is also aware of the potential for arguing that the history of the 1991 Act itself stands as evidence of Congress’ intent that the bill apply prospectively only. That is, the facts are that Congress drafted a bill expressly providing for retroactivity. The President refused to sign the bill, citing as his reason, inter alia, the bill’s “unfair retroactivity rules.” 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). An attempted congressional override failed. The very next session, the House of Representatives drafted a second bill, also expressly providing for retroactive application. Realizing that the President would not sign such a bill, the Senate drafted a compromise bill, from which all retroactivity provisions had been deleted. This compromise bill passed in both the Senate and House. Finally, the President signed this compromise bill, which was completely silent on the issue of retroactivity, into law.

Proponents of this argument would assert that since Congress drafted a bill expressly providing for retroactive application, then intentionally deleted this provision, Congress necessarily must have intended for the bill to apply prospectively only. See Immigration Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421, 442-43, 107 S.Ct. 1207, 1218-19, 94 L.Ed.2d 434 (1987) (“ ‘Few principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.’ ”) (quoting Nachman Corp. v. Pension Benefit Guar. Corp., 446 U.S. 359, 392-93, 100 S.Ct. 1723, 1742, 64 L.Ed.2d 354, reh’g denied, 448 U.S. 908, 100 S.Ct. 3051, 65 L.Ed.2d 1137 (1980) (Stewart, J. dissenting)) (also citing Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 200, 95 S.Ct. 392, 401, 42 L.Ed.2d 378 (1974) (where provisions previously included in a bill are deleted prior to passage, that congressional shift “militates against a judgment that Congress intended a result that it expressly declined to enact.”); Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983) (“[I]t is generally presumed that Congress acts intentionally and purposely in the ... inclusion or exclusion [of statutory provisions].”)). See also, Div. 998, Amalgamated Ass’n of Street Employees v. Wis. Employment Relations Bd., 340 U.S. 383, 392 n. 15, 71 S.Ct. 359, 364 n. 15, 95 L.Ed. 364 (1951) (President’s successful veto of a bill followed by passage of a similar bill in a subsequent session, but without the language to which the President objected, indicates that the objectionable language was expressly rejected); Maddox v. Norwood Clinic, Inc., 783 F.Supp. 582, 585 (N.D.Ala.1992) (“When Congress wants a bill to apply retroactively, it is capable of saying so in plain, unequivocal language.”). See generally, Note, The First Words: The President’s Place in “Legislative History”, 89 Mich.L.Rev. 399, 412 (1990) (“Although a successful [presidential] veto means that the original bill never becomes law, a similar bill may well be passed later in its stead. If the President signs the subsequent bill, courts should be able to use the President’s veto message from the original bill to infer that the later bill takes into account the objections and policy preferences of the President.”) (footnote omitted).

Indeed, the Eighth Circuit Court of Appeals in Fray found this argument compelling. The Court stated:

Here, the President vetoed a bill containing an explicit retroactivity provision. That veto could not be overridden and a compromise bill omitting those provisions was then enacted. Whatever ambiguities may be found elsewhere in the Act and its legislative history, we think this is dispositive.

960 F.2d at 1378. The Court concluded: “When a bill mandating retroactivity fails to pass, and a law omitting that mandate is then enacted, the legislative intent was surely that the new law be prospective only; any other conclusion simply ignores the realities of the legislative process.” Id.

Nevertheless, this court is unpersuaded, due to the many conflicting statements made by the various Senators and Representatives during the floor debates, as well as Congress’ express refusal to accept the Bush Administration’s proposed bill expressly providing for prospective only effect. Rather, in light of the total situation surrounding the drafting and enactment of the 1991 Act, this court merely views the removal of the original retroactivity provisions as an act of compromise by members of Congress who, understandably, very much wanted to obtain the President’s signature on this second bill. In order to reach this goal, they either had to accept the Bush Administration’s proposal, and make the bill expressly prospective in effect — to which the Democratic side voiced strong objection — or simply delete the offending retroactivity provisions, and leave the retroactivity decision to the courts. By their own admission, members of Congress apparently saw this second alternative as the lesser of evils, and accordingly deleted the retroactivity provisions. In light of this ambiguous legislative history, this court does not view the actual deleting itself of the retroactivity provisions in question as dispositive evidence one way or the other.

As the court struggles to interpret the 1991 Act, also of some interpretive authority is the construction given the Act by the Equal Employment Opportunity Commission (“EEOC”). On December 27, 1991, in response to the uncertainty attending the enactment of the 1991 Act, and specifically with regard to the retroactivity issue, the EEOC, pursuant to Executive Order 12067, issued its “Policy Guidance on Retroactivity of Civil Rights Act of 1991.” That document states as its purpose “to provide guidance on whether the compensatory and punitive damages provisions of the Civil Rights Act of 1991 apply to pending charges and to conduct occurring prior to the effective date of the Act.” After discussing the particular damages provisions in question, the Act’s language and legislative history, and the conflicting Supreme Court precedents, the EEOC concluded:

Bowen represents the Supreme Court’s more recent holding on this issue, and the Commission will follow the dictates of that case with regard to the retroactivity of the damages provisions. Accordingly, the Commission will not seek damages in charges filed prior to enactment of the Act, or in post-Act charges that challenge, pre-Act conduct____[T]he Commission will not seek damages under the Civil Rights Act of 1991 for events, occurring before November 21, 1991.

EEOC Policy Guidance on Retroactivity of Civil Rights Act of 1991, 1 Daily Lab.Rep. (BNA) D-l, D-2 (Jan. 2, 1992) (emphasis added).

As the agency charged with the administration of all civil rights statutes, the EEOC’s interpretation of the 1991 Act must be accorded substantial weight. “Generally, absent clear legislative intent, the construction given a statute by the agency that administers it is entitled to deference, provided it is reasonable.” Vogel, 959 F.2d at 598. Moreover, the Supreme Court has held that where

Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.

“The power of an administrative agency to administer a congressionally created ... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” Morton v. Ruiz, 415 U.S. 199, 231 [94 S.Ct. 1055, 1072, 39 L.Ed.2d 270] (1974). If Congress has explicitly left a gap- for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.

Chevron U.S.A., Inc. v. Natural Res. Defense Council, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694, reh’g denied, 468 U.S. 1227, 105 S.Ct. 28, 82 L.Ed.2d 921 (1984) (footnotes omitted). See also, United States v. Shimer, 367 U.S. 374, 383, 81 S.Ct. 1554, 1560, 6 L.Ed.2d 908 (1961) (“If [the agency’s] choice represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.”).

In Vogel, as here, the Sixth Circuit Court of Appeals was faced with the question of the propriety of retroactive application of the 1991 Act to a pending case. After examining the Act’s language and legislative history, as well as the interpretation given the Act by the EEOC, the Court in Vogel concluded, “In light of the ambiguity of the statute on its face and the lack of congressional guidance, the EEOC’s decision to apply the 1991 [A]ct prospectively appears reasonable.” 959 F.2d at 598. Apparently based almost solely upon the EEOC’s interpretation of the 1991 Act, the Court in Vogel held that retroactive application of the Act was impermissible. Id.

Nevertheless, the EEOC’s interpretation of the 1991 Act has not gone unchallenged. In response to the EEOC’s Policy Guidance, the United States Commission on Civil Rights (“CCR”) on February 13, 1992 issued its “Memorandum of Law on the EEOC’s Policy Guidance on the Application of Damages Provisions of the Civil Rights Act of 1991 to Pending Charges and PreAct Conduct.” In a cover letter addressed to the Assistant Legal Counsel for the EEOC, the Staff Director of the CCR explained the CCR’s function as follows:

The United States Commission on Civil Rights (Commission) is an independent, bipartisan agency of the Federal Government established to review legal developments, and appraise Federal policies, involving discrimination or a denial of equal protection. In fulfilling this mission, the Commission holds hearings and submits reports containing findings and recommendations to the President and Congress.

In carrying out those statutory re