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Buchfield v. Derwinski
, 782 F. Supp. 532; 1992 U.S. Dist. LEXIS 1341; 58 Fair
Empl. Prac. Cas. (BNA) 34; 58 Empl. Prac. Dec. (CCH) P41,291(D.Colo. 1992)

v.Civil Action No.

January 29, 1992, Decided
January 29, 1992, Filed
For the Plaintiff: Walter E. Brown III, Esq., Billie G. Burchfield, Esq., 309 Eighth
Street, Glenwood Springs, CO 81601
Adam J. Conti, Esq., Mack & Bernstein, 100 Peachtree Street, N. W., Suite 600,
Atlanta, GA 30303-1909.
Buchfield v. Derwinski, 782 F. Supp. 532 (D.Colo.1992)
Page 1 of 10

For the Defendant: Michael J. Norton, Esq., United States Attorney, Kathleen L.
Torres, Esq., Assistant United States Attorney, 633 17th Street, Suite 1600, Denver,
CO 80202.
JUDGES: Sherman G. Finesilver, Chief Judge, United States District Court
Sherman G. Finesilver, Chief Judge.
This matter comes before the Court on Plaintiff's Motion to Amend Complaint and
Try This Matter by Jury, filed December 18, 1991. Plaintiff seeks to apply the
provisions of the Civil Rights Act of 1991 (the "Act") to a case that was pending prior
to the date of enactment. This matter has been fully briefed by the litigants. Jurisdiction
is based on 28 U.S.C.A. @ 1331 (West Supp. 1991). For the reasons stated below,
the Motion to Amend Complaint and Try This Matter by Jury is DENIED.
Plaintiff Annie Rosella Burchfield ("Burchfield") is a nurse employed by the United
States Department [**2] of Veterans Affairs ("VA Department"). n1 Burchfield has
been employed by the VA Department, or its predecessor, the Veterans Administration
since January 1980. During 1988, Burchfield was employed at the Richmond Veterans
Affairs Medical Center. Burchfield's supervisor was Darlene Ewers.
During the summer of 1988, while temporarily separated from her husband,
Burchfield alleges that Ewers informed her that if Burchfield reconciled with her
Buchfield v. Derwinski, 782 F. Supp. 532 (D.Colo.1992)
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1All factual recitations contained in this Order have been alleged in the litigants'

husband, then her VA career would be finished, but that if Burchfield divorced her
husband, then Ewers would assist Plaintiff in securing a chief nurse position in the VA
system. Burchfield alleges that Ewers showed sexual interest in her, by brushing up
against Plaintiff's breasts on at least one occasion and by trying to share a hotel room
with Plaintiff on a business trip.
Burchfield subsequently reconciled with her husband. After this reconciliation,
Burchfield charges that [**3] Ewers disclosed private and embarrassing facts about
her and made false and disparaging remarks about her sexuality and job performance to
other VA employees.
Plaintiff brought this matter to the attention of the VA Department. An informal
resolution was reached and Burchfield was transferred to the VA Medical Center in
Grand Junction, Colorado. Burchfield claims that the VA Department assured her that
no information about the incident would be disseminated to her next duty station.
Burchfield began working at Grand Junction on December 18, 1988. Burchfield
claims that Grand Junction's Chief of Nursing Service Raedelle Mundy learned of her
prior problems in late January or February of 1989. Burchfield also alleges that Mundy
engaged in a pattern of retaliation and ostracism that included the dissemination of false
information, poor work performance appraisals, and extended assignments away from
her official duties.
Plaintiff's two-count Employment Discrimination Complaint, filed August 15, 1991,
seeks declaratory, remedial, and injunctive relief for sex discrimination and retaliation
pursuant to 42 U.S.C.A. [*534] @@ 2000e-5 and 16 (West 1981). November
21, 1991 is the effective [**4] date of the Act. Therefore, this case was pending
before the Act's enactment.
Fed. R. Civ. P. 15(a) provides that a motion for leave to amend pleadings "shall be
freely given when justice so requires." However, courts will deny motions to amend
Buchfield v. Derwinski, 782 F. Supp. 532 (D.Colo.1992)
Page 3 of 10

pleadings when such amendments would be futile or would not survive a motion to
dismiss. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962);
Glick v. Koenig, 766 F.2d 265, 268-69 (7th Cir. 1985); In re Ampicillin Antitrust
Litigation, 82 F.R.D. 647, 650 (D.D.C. 1979).
On November 21, 1991, President Bush signed the Act into law. Plaintiff maintains
that the Act's provisions should apply to cases pending at the time of enactment. We
A review of Supreme Court precedents reveals [**5] two conflicting lines of
authority on the issue of retroactive application of newly enacted laws or regulations to
pending cases. In Bradley v. School Board of the City of Richmond, 416 U.S. 696,
711-17, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1973), and Thorpe v. Housing Authority of
the City of Durham, 393 U.S. 268, 281-83, 21 L. Ed. 2d 474, 89 S. Ct. 518 (1969),
the Supreme Court directed the lower courts to apply the law in effect at the time a
decision was rendered, even if that involved retroactive application to pending cases. In
Bradley, the Court articulated a presumption 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." Bradley, 416 U.S. at 715.
The second line of cases includes Kaiser Aluminum & Chemical Corp. v. Bonjorno,
494 U.S. 827, 836-37, 108 L. Ed. 2d 842, 110 S. Ct. 1570 (1990), and Bowen v.
Georgetown University Hospital, 488 U.S. 204, 208, 102 L. Ed. 2d 493, 109 S. Ct.
468 (1988). The Georgetown Court adopted the following presumption:
Retroactivity is not favored in the law. Thus, congressional enactments and
administrative rules will not be construed to have retroactive effect unless their [**6]
language requires this result.
Buchfield v. Derwinski, 782 F. Supp. 532 (D.Colo.1992)
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2 We expressly limit our opinion to cases filed and pending prior to the date of
enactment. Accordingly, we decline to address whether the Act applies.

Georgetown, 488 U.S. at 208. This presumption directly conflicts with the presumption
enunciated in Bradley. In Bonjorno, the Court recognized the apparent conflict
between the Bradley and Georgetown lines of authority, but declined to reconcile those
precedents, reasoning that "under either view, where the congressional intent is clear, it
governs." Bonjorno, 494 U.S. at 837.
In a comprehensive and well-reasoned opinion, the Tenth Circuit expressly adopted
the Georgetown presumption against retroactivity and rejected the Bradley presumption
in favor of retroactivity. DeVargas v. Mason & Hanger-Silas Mason Co., 911 F.2d
1377, 1389-92 (10th Cir. 1990), cert. denied, 112 L. Ed. 2d 860, 111 S. Ct. 799
(1991); accord Wagner Seed Co. v. Bush, 946 F.2d 918, 924 (D.C. Cir. 1991). The
DeVargas Court considered the issue of retroactive application with respect to the Civil
Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28 (1988)
("Restoration Act"). In DeVargas, the Tenth Circuit focused upon congressional intent
to determine [**7] whether the Restoration Act applied retroactively to pending
cases. DeVargas, 911 F.2d at 1384.
The DeVargas Court held that new laws would not be applied retroactively absent
"clear congressional intent" to the contrary. Id. The Tenth Circuit found that the "clear
congressional intent" standard for retroactive application of statutes "requires articulated
and clear statements on retroactivity, not inferences drawn from the general purpose of
the legislation." Id. [*535] at 1387. Applying this standard, the Tenth Circuit found
floor statements by Congressmen in favor of retroactivity unpersuasive in light of the
absence of any mention of retroactive application in the statute or the Senate report. Id.
at 1386.
The Circuits, however, remain divided in choosing among the Bradley and
Georgetown presumptions regarding retroactivity.
3 Reported opinions from the district
Buchfield v. Derwinski, 782 F. Supp. 532 (D.Colo.1992)
Page 5 of 10
3 Compare Wagner Seed Co. v. Bush, 946 F.2d 918, 924 (D.C. Cir. 1991) and
Simmons v. Lockhart, 931 F.2d 1226, 1230 (8th Cir. 1991) and Alpo Petfoods, Inc.
v. Ralston Purina Co, 286 App. D.C. 192, 913 F.2d 958, 963-64 n.6 (D.C. Cir.
1990) and DeVargas, 911 F.2d at 1384 (holding that the Georgetown presumption is
the better rule) with United States v. Peppertree Apartments, 942 F.2d 1555, 1560-61

courts indicate a deep division on the issue of applying the Act retroactively to pending
cases. In circuits where the Georgetown presumption against retroactivity has been
adopted, district courts generally have rejected retroactive application [**8] of the
Act to cases pending on the date of enactment. Van Meter v. Barr, 778 F. Supp. 83,
1991 U.S. Dist. LEXIS 18674, at *3-9 (D.D.C. December 18, 1991) (Gesell, J.);
Hansel v. Public Serv. Co. of Colo., 778 F. Supp. 1126, 1991 U.S. Dist. LEXIS
17904, *28-31 (D. Colo. 1991) (Babcock, J.); accord James v. American Int'l
Recovery, Inc., 1991 U.S. Dist. LEXIS 18408 (N.D. Ga. December 3, 1991); see
also Sorlucco v. New York City Police Dep't, 780 F. Supp. 202, 1992 U.S. Dist.
LEXIS 71, at *32-34 (S.D.N.Y. January 7, 1992) (precluding retroactive application
to a case that had been tried prior to enactment under a narrow reading of Bradley). In
circuits where the Bradley presumption of retroactivity is controlling, district courts have
applied the Act retroactively. Stender v. Lucky Stores, Inc., 780 F. Supp. 1302, 1992
U.S. Dist. LEXIS 274, at *13-15 (N.D. Cal. January 7, 1992); King v. Shelby
Medical Center, 779 F. Supp. 157, 1991 U.S. Dist. LEXIS 18228, at *1-8 (N.D. Ala.
December 18, 1991); Mojica v. Gannett Co., 779 F. Supp. 94, 1991 U.S. Dist.
LEXIS 17388, *14 (N.D. Ill. November 27, 1991) (relying upon the Seventh Circuit's
[**9] precedent). We also note that the Equal Employment Opportunity
Commission has issued an opinion against retroactive application of the Act and has
determined not to seek to apply the Act's provisions to pending cases. E.E.O.C.
Notice No. 915.002 (December 27, 1991).
Applying the standards set forth in DeVargas, we begin by considering the language
of the Act. Section 402 of the Act provides:
Buchfield v. Derwinski, 782 F. Supp. 532 (D.Colo.1992)
Page 6 of 10
(11th Cir. 1991) and FDIC v. Wright, 942 F.2d 1089, 1095 n.6 (7th Cir. 1991) and
Northern Mariana Islands v. Kawano, 917 F.2d 379, 381-82 (9th Cir. 1990), cert.
denied, 113 L. Ed. 2d 224, 111 S. Ct. 1116 (1991) and Kruso v. International Tel. &
Tel. Co., 872 F.2d 1416, 1424-25 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217, 110
L. Ed. 2d 664 (1990) and Leake v. Long Island Jewish Med. Ctr., 695 F. Supp. 1414
1415-18 (E.D.N.Y. 1988), aff'd 869 F.2d 130, 131 (2d Cir. 1989) (holding that the
Bradley presumption is the better rule). See generally Ayers v. Allain, 893 F.2d 732,
755-56 (5th Cir. 1990), aff'd en banc, 914 F.2d 676 (5th Cir. 1990) (applying the
Restoration Act retroactively).

(a) . . . Except as otherwise specifically provided, this Act and the amendments made
by this Act shall take effect upon enactment.
(b) . . . 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.

On its face, the language of section 402 fails to express a clear congressional intent
regarding the retroactive application of the Act. In other situations, Congress has stated
explicitly that new legislation shall apply to pending litigation. See DeVargas, 911 F.2d
at 1385 & n.7. Congress failed to incorporate such a statement in the Act.
The legislative history indicates that Congress was [**11] deeply divided along
partisan lines on the issue of retroactivity. Senators Danforth and Kennedy issued a
joint "Interpretive Memorandum" relating to the Act. See 137 Cong. Rec. S15483-85
(daily ed. October 30, 1991). The Senators agreed on all points except the issue of
retroactivity. Senator Danforth expressed the intent not to apply the Act retroactively.
Id. at S15483. Other Republican Senators, such as Senator Dole, id. at S15478, and
Senator Murkowski, id. at S15493, concurred with Senator Danforth. Senator
Kennedy expressed the view that the bill was intended to apply retroactively, [*536]
citing Bradley and its progeny with approval. Id. S15485. Given this division of
opinion on retroactivity, the legislative history fails to provide the Court with an
expression of "clear congressional intent."
From a policy perspective, the Court is troubled by Congress' drafting of the Act,
particularly Congress' failure to directly address and resolve the retroactivity issue.
Senator Kennedy recognized that "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 date of enactment."
Id. [**12] Congressional indecision on the retroactivity issue has forced both the
Buchfield v. Derwinski, 782 F. Supp. 532 (D.Colo.1992)
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federal courts and litigants to expend valuable time and resources resolving an issue that
is wholly unrelated to the merits of civil rights cases.
4 The burdens placed on the judicial
system "frustrate[] the early and orderly resolution of issues which should demand
greater attention -- compensating the victim or vindicating accused commercial entities."
In re Air Crash Disaster at Stapleton Int'l Airport, 720 F. Supp. 1445, 1454 (D. Colo.
1988). [**13]
Although judges do not act as policy making authorities, courts are called upon to
manage cases that arise under federal statutes. The trial judge's perspective offers
important insight into the clarity of legislation and the problems that ambiguities create
for judicial administration. Accordingly, it behooves judges to call to the attention of
Congress inadequacies in statutes that frustrate the efficient resolution of litigation.
Recently, the President's Council on Competitiveness issued a series of
recommendations for improving the legal system. See Agenda for Civil Justice Reform
in America, A Report from the President's Council on Competitiveness (August 1991)
("Agenda"). The Agenda recognized that "poorly drafted federal statutes" shared part
of the responsibility for increasing litigation. Id. at 9. The Agenda specifically
recommended that all legislative proposals should be reviewed against a "litigation
hazards" checklist. Id. Adherence to such a checklist would reduce the need for parties
to litigate issues of statutory construction collateral to the merits of their cases, conserve
judicial and litigants' resources, and promote more expedient resolution [**14] of
When reviewing proposed legislation, Congress specifically should address the
following items in order to reduce the need for collateral litigation:
Buchfield v. Derwinski, 782 F. Supp. 532 (D.Colo.1992)
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4 For a discussion of the deep divisions in Congress on the retroactivity issue, see S.
Poor, Rights Act's Retroactivity Still Disputed, Nat'l L.J., January 27, 1992, at 19,
22-23. For a discussion of the impact of Congress' failure to resolve the retroactivity
issue on the courts, see Legal Flurry: Court Cases Explore Whether the Civil-Rights
Law is Retroactive, Wall St. J., January 28, 1992, at 1; J. Groner, New Rights Act
Ducks Crucial Issue, Legal Times, Dec. 9, 1991, at 1, 18-19.

1) clear statements of legislative intent;
2) definitions of key terms;
3) a statute of limitations;
4) a statement of court jurisdiction and removability;
5) the conditions and procedures of acquiring personal jurisdiction;
6) listing of available types of relief;
7) the conditions for attorney's fee awards, if authorized;
8) whether a private cause of action is authorized;
9) whether state law is preempted;
10) whether the proposed legislation affects or changes existing federal legislation and in
what way;
11) whether exhaustion of administrative remedies is required and whether any
administrative proceedings are to be formal or informal;
12) whether private arbitration or other dispute resolution agreements remain viable
under the legislation's relief and enforcement provisions; and
13) whether the legislation is to be applied retroactively.

Buchfield v. Derwinski, 782 F. Supp. 532 (D.Colo.1992)
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[*537] One such checklist has been proposed by the Report of the Federal Courts
Study Committee, at 91-92 (April 2, 1990).
Because Congress failed to deal squarely with the retroactivity issue, courts have
spent and will continue to spend considerable time resolving this issue. The need to
commit judicial and litigants' resources to a matter that Congress could have resolved by
more precise legislative drafting frustrates efforts to reform and streamline the American
legal system.
ACCORDINGLY, it is ordered that:
1) Plaintiff's Motion to Amend Complaint and Try This Matter by Jury, filed
December 18, 1991, is hereby DENIED.
2) The Civil Rights Act of 1991 does not apply retroactively to cases pending at the
time of enactment.
Dated this 29th day of January, 1992, at Denver, Colorado.
Sherman G. Finesilver, Chief Judge, United States District Court
Buchfield v. Derwinski, 782 F. Supp. 532 (D.Colo.1992)
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5 The Federal Courts Study Committee is a congressionally mandated committee. The
committee's diverse membership includes judges and Congressmen. The committee
conducted a fifteen-month study of the problems facing the federal courts, and its
findings carry significant weight.

Buchfield v. Derwinski, 782 F. Supp. 532 (D.Colo.1992)
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