T. H. BELL, SECRETARY OF EDUCATION, PETITIONER V. STATE OF NEW JERSEY No. 83-2364 In the Supreme Court of the United States October Term, 1983 The Solicitor General, on behalf of T. H. Bell, Secretary of Education, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Third Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statutes and regulation involved Statement Reasons for granting the petition Conclusion Appendix OPINIONS BELOW The opinion of the court of appeals (App. infra, 1a-5a) is reported at 724 F.2d 34. The prior opinion of the court of appeals (App. infra, 6a-31a) is reported at 662 F.2d 208. The decision of the Education Appeal Board (App. infra, 32a-58a) is unreported. JURISDICTION The judgment of the court of appeals (App. infra, 60a-6ła) was entered on December 27, 1983, and a petition for rehearing was denied on February 17, 1984 (App. infra, 62a). On May 3, 1984, Justice Brennan extended the time for filing a petition for a writ of certiorari to and including June 16, 1984. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTES AND REGULATION INVOLVED 20 U.S.C. (1976 ed.) 241e(a) provided in pertinent part: A local educational agency may receive a grant under this subchapter for any fiscal year only upon application therefor approved by the appropriate State educational agency, upon its determination (consistent with such basic criteria as the Commissioner may establish) -- (1) that payments under this subchapter will be used for * * * programs and projects * * * (A) which are designed to meet the special educational needs of educationally deprived children in school attendance areas having high concentrations of children from low-income families * * * . 20 U.S.C. 2732(a)(1) provides in pertinent part: (A) local educational agency shall use funds received under this subchapter in school attendance areas having high concentrations of children from low-income families (hereinafter referred to as "eligible school attendance areas") * * * . A local educational agency may designate any school attendance area in which at least 25 per centum of the children are from low-income families as an eligible school attendance area if the aggregate amount expended under this subchapter and under a State program meeting the requirements of section 2751(c) of this title in that fiscal year in each school attendance area of that agency in which projects assisted under this subchapter were carried out in the preceding fiscal year equals or exceeds the amount expended from those sources in that area in such preceding fiscal year. 45 C.F.R. 116.17(d) (1972) provided in pertinent part: A school attendance area for either a public elementary or a public secondary school may be designated as a project area if the estimated percentage of children from low-income families residing in that attendance area is as high as the percentage of such children residing in the whole of the school district, or if the estimated number of children from low-income families residing in that attendance area is as large as the average number of such children residing in the several school attendance areas in the school district. QUESTION PRESENTED Whether subsequent amendments in substantive requirements of federal grants should be applied retroactively to audits of previously expended grant funds in the absence of any legislative direction to that effect. STATEMENT The statutory and factual background of this case is summarized in Bell v. New Jersey, No. 81-2125 (May 31, 1983), slip op. 1-3. In brief, federal auditors determined that respondent misused funds it had received as grants in 1970-1972 under Title I of the Elementary and Secondary Education Act of 1965 (ESEA), 20 U.S.C. (1976 ed.) 241a et seq., to improve the educational opportunities available to disadvantaged children. /1/ The funds were provided to finance programs "which contribute particularly to meeting the special educational needs of educationally deprived children" in areas with high concentrations of children from low-income families (20 U.S.C. (1976 ed.) 241a). The Secretary's implementing regulations established that a school attendance area met the statutory eligibility requirement if the percentage of low-income children in the area was at least as high as the percentage of such children in the entire school district (45 C.F.R. 116.17(d) (1972)). Respondent gave its assurances, as a condition of its receipt of the grant funds, that the funds would be spent only for programs and projects that satisfied all the applicable Title I requirements (20 U.S.C. (1976 ed.) 241f(a)(1)). The federal audit revealed that, despite these assurances, more than $1 million of Title I funds had been expended in school attendance areas in Newark between September 1, 1970 and September 1, 1972, where the percentages of low-income children were below the district-wide percentage of such children, in clear violation of 45 C.F.R. 116.17(d) (1972). After administrative review of these audit findings, the Education Appeal Board concluded that the Title I funds had been used in ineligible school attendance areas in Newark, and directed New Jersey to repay $1,031,304 to the Department of Education (App., infra, 57a-58a). The Secretary declined to review the Appeal Board's decision, which accordingly became final (id. at 15a). Respondent thereupon petitioned for judicial review, challenging both the Secretary's jurisdiction to require recoupment and the validity of the administrative determination that the funds had been misspent. The court of appeals agreed with respondent's jurisdictional argument and therefore did not consider the alternative claim (App., infra, 8a). This Court reversed, "conclud(ing) that the Secretary has followed the proper procedures. He has administratively determined the amount of the debt owed by (respondent) to the Federal Government * * * as he is empowered to do" (slip op. 18-19). The Court remanded the case to the court of appeals for consideration of the State's objections to the merits of the Secretary's determination (id. at 19). On remand, the court of appeals again refused to require the repayment of the funds in issue. For the first time, /2/ respondent argued that its compliance with the conditions attached to its Title I grant should be tested by the standards contained in the 1978 Amendments to the ESEA, rather than by the standards that were in effect when the funds were awarded and expended. The amended standards permitted the use of Title I funds in any school attendance area "in which at least 25 per centum of the children are from low-income families * * * if the aggregate amount expended under (Title I) and under a (qualifying) State program * * * in that fiscal year in each school attendance area of that agency in which (Title I) projects * * * were carried out in the preceding fiscal year equals or exceeds the amount expended from those sources in that area in (the) preceding fiscal year" (20 U.S.C. 2732(a)(1)). Respondent asserted that, if tested by this more lenient standard, most of the 1970-1972 Newark expenditures were allowable. The court of appeals agreed that the eligibility standards contained in the 1978 Amendments should be applied to the 1970-1972 grant fund expenditures, on the theory that "(a) federal court or administrative agency must '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'" (App., infra, 4a, quoting Bradley v. School Board, 416 U.S. 696, 711 (1974)). Finding no such manifest injustice or contrary statutory indication, the court concluded that retroactive application of the 1978 standards was appropriate, particularly because those amendments were assertedly "remedial," and the case "involves a public matter of great national concern (rather than) the routine private lawsuit in which a retrospective application of a law would disadvantage a private party who had relied on a settled body of private law" (App., infra, 4a-5a). The court accordingly remanded the case to the Secretary to determine, for each school attendance area that had a Title I project in the relevant years, whether the 1970-1972 expenditures conformed to the 1978 standards. REASONS FOR GRANTING THE PETITION Last Term, this Court in this case "established the right of the Federal Government to recover funds misused by the States" when they receive Title I grants. Bell v. New Jersey, slip op. 17. The decision of the court of appeals on remand, denying such recovery when subsequent legislation has modified the standard with which a state failed to comply, substantially eviscerates the Secretary's right to recover misspent funds and seriously jeopardizes the federal government's ability adequately to monitor grants-in-aid for compliance with statutory and regulatory requirements. Moreover, the decision below is inconsistent with the decisions of other courts of appeals and with basic principles of statutory interpretation and federal grant law, and misreads both the congressional intent in enacting the 1978 Amendments and the decision of this Court in Bradley v. School Board, supra. Review by this Court is plainly warranted. 1. In Bell v. New Jersey, supra, this Court unanimously held that the federal government may recover misused funds "advanced as part of a federal grant-in-aid-program under Title I of the Elementary and Secondary Education Act" (slip op. 1). The Court emphasized that states are required "to honor the obligations voluntarily assumed as a condition of federal funding" (slip op. 16) and that when a state "fail(s) to fulfill those assurances, * * * (it becomes) liable for the funds misused, as the grant specified" (slip op. 17). /3/ The court of appeals nevertheless concluded that respondent can avoid such liability, even though it failed to fulfill an assurance made when the funds were received and expended, if it can show that subsequent grants did not require the giving of that assurance. This conclusion cannot be reconciled with the approach of other courts of appeals, which have consistently analyzed the terms of the statutes and regulations in effect when the expenditures were made to determine whether the expenditures were proper. See, e.g., Indiana v. Bell, 728 F.2d 938, 941 n.6 (7th Cir. 1984); Kentucky v. Secretary of Education, 717 F.2d 943, 945, 947 n.9 (6th Cir. 1983), petition for cert. pending, No. 83-1798; West Virginia v. Secretary of Education, 667 F.2d 417, 420 (4th Cir. 1981). Cf. Woods v. United States, 724 F.2d 1444, 1446 n.1 (9th Cir. 1984) (Food Stamp Program); North Carolina Comm'n of Indian Affairs v. Dep't of Labor, 725 F.2d 238, 239 (4th Cir. 1984) (CETA Program). These decisions, unlike the one below, conform to the basic principle that a grantee, in exchange for federal funds, agrees to comply with specific terms and conditions relating to the use of those funds. See, e.g., Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 17(1981); King v. Smith, 392 U.S. 309 (1968). As Justice White stated in his concurring opinion in this Court's prior decision in this case, Bell v. New Jersey, No. 81-2125, slip op. 2: The States entered into contractual-type agreements with the United States to disburse the (Title I) monies in accordance with specified conditions. The States had no legitimate claim to a right to be able to breach these conditions with impunity. In the absence of any contrary congressional intent, agreements such as these are surely enforceable. The "specified conditions" agreed to by respondent in exchange for Title I funds during 1970-1972 were the statute and regulations then in effect, not statutory changes enacted more than six years after the grant funds were expended. 2.a. The court of appeals erred in ignoring the basic and longstanding rule of statutory construction that substantive legislation must apply prospectively, unless there is a clear legislative intent to the contrary. United States v. Security Industrial Bank, 459 U.S. 70, 79 (1982); Greene v. United States, 376 U.S. 149, 160 (1964); Claridge Apartments Co. v. Commissioner, 323 U.S. 141, 164 (1944); United States v. Magnolia Petroleum Co., 276 U.S. 160, 162-163 (1928) ("Statutes 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 to do so plainly appears." (citing cases)); Cameron v. United States, 231 U.S. 710, 720 (1914) ("In the absence of a clearly expressed legislative intent to the contrary the court will presume that the law-making power is acting for the future and does not intend to impair obligations incurred or rights relied upon in the past conduct of men when other legislation was in force."); United States v. Heth, 7 U.S. (3 Cranch) 339, 413 (1806); Smead, The Rule Against Retroactive Legislation: A Basic Principle of Jurisprudence, 20 Minn. L. Rev. 775 (1936). As this Court stated in Union Pacific R. R. v. Laramie Stock Yards Co., 231 U.S. 190, 199 (1913): (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." The new eligibility requirements enacted as part of the 1978 Amendments were clearly substantive legislation, relating to the standards and conditions under which school districts accepted and used Title I grant funds. Nothing in either the requirements themselves or their legislative history even suggests, much less unequivocally requires, that they are to be applied retroactively. Indeed, Congress's intent to apply 20 U.S.C. 2732(a)(1) prospectively is apparent both from the terms of the statute and from its legislative history. The statute specifies that October 1, 1978, is its effective date (Pub. L. No. 95-561, Section 1530, 92 Stat. 2380) -- a strong indication that it is to be applied only to grants made after that date. That reading is reinforced by 20 U.S.C. 2702, which also indicates a prospective period of applicability for the new substantive Title I requirements: During the period beginning October 1, 1978, and ending September 30, 1983, the Secretary shall, in accordance with the provisions of this subchapter, make payments to State educational agencies for grants made on the basis of entitlements created under this subchapter. The legislative history supports this language. The House Report states that the changed requirements clarify "the manner in which school districts are to distribute Title I funds among eligible schools and children," thus confirming that the changes apply only to future grants. H. R. Rep. 95-1137, 95th Cong., 2d Sess. 21 (1978) (emphasis added). The court of appeals erroneously found a contrary legislative intent in statements in the hearings that the 1978 Amendments were designed to correct a preceived "injustice * * * (to) areas with high concentrations of low income families" (App., infra, 4a (footnote omitted)). But the statements to which the court referred (id. at 4a n.2) contain no mention of the change at issue here in the eligibility requirements for school attendance areas. In any event, although the House and Senate Reports refer generally to a congressional intent to "clarify" existing Title I requirements (H.R. Rep. 95-1137, 95th Cong., 2d Sess. 22 (1978); S. Rep. 95-856, 95th Cong., 2d Sess. 130 (1978)), such references hardly show that the amendments were intended to affect grants that had previously been made. See LTV Federal Credit Union v. UMIC Government Securities, 704 F.2d 199, 202 (5th Cir. 1983); Sikora v. American Can Co., 622 F.2d 1116, 1121 (3d Cir. 1980). The court of appeals cited no evidence demonstrating "the manifest intention of the legislature" to "interfere( ) with antecedent rights" (Union Pacific R.R. v. Laramie Stock Yards Co., supra). /4/ Any possible doubt concerning the legislative intent in this regard is laid to rest by 1 U.S.C. 109, the general savings statute, which provides that "(t)he repeal of any statute shall not have the effect to release or extinguish any * * * liability incurred under such statute, unless the repealing Act shall expressly so provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such * * * liability." This statute applies to amendments, as well as outright repeals. Warden v. Marrero, 417 U.S. 653, 660 (1974); United States v. Mechem, 509 F.2d 1193, 1194 n.3 (10th Cir. 1975). Moreover, "the term 'liability' as used in the general savings statute has been broadly construed by the courts to comprehend all obligations arising out of any breach of a statutory duty." NLRB v. National Garment Co., 166 F.2d 233, 237 & n.4 (8th Cir. 1948) (citing cases); accord, Hertz v. Woodman, 218 U.S. 205, 217-218 (1910). See also United States v. Carter, 171 F.2d 530 (5th Cir. 1948) (applying statute to require restitution of overcharges to purchasers of housing under expired statute). There is certainly nothing in the 1978 Amendments that expressly prohibits the continuing applicability of the substantive standards under which the 1970-1972 grants were made; the general savings statute thus provides that the obligations the states voluntarily undertook concerning the ways in which those grants would be expended remain enforceable. b. Bradley v. School Board, 416 U.S. 696 (1974), upon which the court of appeals relied (App, infra, 4a), does not support the retroactive application of the substantive eligibility standards in the 1978 Amendments to grants made and expended when earlier statutory provisions were in effect. In Bradley, this Court stated (416 U.S. at 711) that an appellate court should generally apply the law in effect at the time it renders its decision unless to do so would work a manifest injustice or would be inconsistent with the legislative intent. As we have shown, there is such inconsistency here. Furthermore, application of the substantive eligibility requirements of the 1978 Amendments to these claims would be manifestly unjust. Indeed, the Bradley principle has only been followed in civil cases where application of the law in effect at the time of a court's decision would not alter material substantive rights or affect liability for prelitigation conduct. Thus, it has been followed in retroactively applying new statutes concerning remedies or procedures for matters such as attorney's fees (Bradley v. School Board, supra; Hutto v. Finney, 437 U.S. 678 (1978)), injunctive relief for future violations (Cort v. Ash, 422 U.S. 66 (1975)), and jury instructions where the changed law "did not extinguish a cause of action" (Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473 (1981)). But the Court has consistently refused to apply the Bradley principle in circumstances that affect a party's substantive rights. See, e.g., United States v. Security Industrial Bank, supra; Employees v. Missouri Pub. Health Dep't, 411 U.S. 279 (1973); see also Bradley, 416 U.S. at 720 ("The Court 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."); Hutto v. Finney, 437 U.S. at 695. The court of appeals believed that the "presumption of retroactivity is particularly strong" because the 1978 Amendments were allegedly "remedial" (App., infra, 4a). It is frequently stated that remedial statutes are to be applied to cases pending at the time of enactment. See, e.g., Koger v. Ball, 497 F.2d 702, 705-706 (4th Cir. 1974); Silverlight v. Huggins, 488 F.2d 107, 109 (3d Cir. 1973); Connett v. Jerseyville, 96 F.2d 392, 400 (7th Cir. 1938); cf. Funkhouser v. Preston Co., 290 U.S. 163, 167-168 (1933). For purposes of retroactivity analysis, however, a remedial statute is one that neither enlarges nor impairs substantive rights, but rather relates to the means and procedures for enforcing those rights. McGee v. International Life Ins. Co., 355 U.S. 220 (1957); Winfree v. Northern Pac. Ry., 227 U.S. 296, 301-302 (1913). /5/ The court of appeals also found it significant that "the case * * * involves a public matter of great national concern and is argued on direct appeal by two public agencies. This is not the routine private lawsuit in which a retorspective application of a law would disadvantage a private party who had relied on a settled body of private law. See Bradley, supra, 416 U.S. at 716-721" (App., infra, 5a). In this regard as well, the court below misinterpreted Bradley. That case does not suggest that retroactivity analysis should overlook unfairness to public entities, even when a case involves a matter of great national concern. Instead, the Court in Bradley emphasized the disparity in the resources available to the litigants there: the "publicly funded" School Board and the "class of children whose constitutional right to a nondiscriminatory education" was directly served by the litigation (416 U.S. at 718). In that context, the Court noted that the great national concern of furthering such education would be enhanced by a full award of attorney's fees. But the Court also emphasized (416 U.S. at 720) that such an award was not unfair to the School Board, which from the outset of the litigation had had a constitutional obligation to provide a nondiscriminatory education and also knew that it faced the possibility that it would be required to pay attorney's fees (416 U.S. at 721). In contrast, here there is no such striking disparity in the resources available to the litigating parties, and no national concern that would be even indirectly served by denying recoupment of misspent grant funds. See Bell v. New Jersey, slip op. 9 n.8. /6/ Instead, the issues presented by this case, "even though raised by a state, are closely akin to private wrongs" (Oklahoma v. Civil Service Comm'n, 330 U.S. 127, 136-137 (1947)). Furthermore, there was certainly no abrogation of responsibilities by the Secretary with knowledge of the possible consequences. The final determination letter, demanding the repayment of misspent Title I funds, was sent on June 11, 1976, well before enactment of the 1978 Amendments (App., infra, 32a). In fact, the Bradley analysis suggests that retroactive application of the substantive provisions of the 1978 Amendments would be inappropriate in this context, because denying retroactivity will further the policies of the ESEA by permitting effective audits and thus by encouraging grantees to conform to their voluntarily accepted obligations. On the other hand, the retroactive application adopted by the court below will seriously complicate agency efforts to audit state compliance with grant conditions and to correct deficiencies identified in that process, particularly in programs where close congressional oversight results in frequent statutory changes in the conditions under which grants are made. An audit necessarily assumes that the standards to be applied are fixed -- otheruise, there is simply no way to determine whether certain expenditures were proper. If those standards change during the course of administrative or judicial review after the audit is completed, the information needed to determine whether the expenditures complied with the new standards may simply not be available, even if a new audit is conducted. For example, here the court of appeals directed the Secretary to determine whether respondent satisfied the requirements of the 1978 Act for each school attendance area that received Title I funds in the relevant years, but there is no assurance that the records necessary to make that determination for 1970-1972 are still available, or indeed were even collected. /7/ And, of course, where, as in the ESEA, the statute is regularly amended, the process can go on indefinitely. Although the court of appeals directed the Secretary to apply the 1978 standards, by the time the decision issued the 1981 Act had once again altered the relevant standards. See Pub. L. No. 97-35, 95 Stat. 464, 20 U.S.C. 3801 et seq. The need for finality thus argues strongly against the result below. 3. The financial impact of the court of appeals' decision is difficult to quantify, but it will surely be substantial. Because both the Education Amendments of 1978 and the successor program, Chapter 1 of the Education Consolidation and Improvement Act of 1981, 20 U.S.C. 3801 et seq.), generally were designed to simplify grant procedures and to relax many of the standards with which the states must comply as a condition of eligibility for federal funds, the principle of retroactivity espoused by the court below has a potentially broad applicability to audits under the earlier statutes, as well as to audits under the 1978 Amendments. Thus, defenses based on the decision below can be expected in a substantial number of pending cases, in which approximately $68 million in Title I audit claims are in dispute. Nor is the impact of this erroneous decision limited to the Title I program. As we noted in our petition (at 17-18), in Bell v. Kentucky, petition for cert. pending, No. 83-1798, the Office of Management and Budget has informed us that a survey of a sample of the major federal granting agencies, responsible for approximately 38% of the total Fiscal Year 1983 grants, shows that there are currently some $830 million in audit exceptions outstanding. It is not unusual for statutory or regulatory standards to be changed between the time that grant funds are spent and the demand for repayment is made at the conclusion of the audit process. If those changes impose conditions on grant recipients that are more stringent -- or simply different -- than those to which they agreed to conform when they received and expended the funds, it is clear that the failure to comply with the subsequent conditions, no matter hou desirable or "remedial" they may be as a matter of policy, is no ground for demanding the repayment of funds that were properly expended under the conditions applicable at the time the expenditures were made. Cf. Pennhurst State School & Hospital v. Halderman, 451 U.S. at 24. The result should be the same when the subsequent conditions are less, rather than more, stringent: the propriety of the expenditures still should be judged by the standards in effect when they were made, not by those subsequently enacted for later grants. In sum, the decision of the court of appeals clouds the standards to be applied in auditing compliance with billions of dollars in federal grants-in-aid. This uncertainty will seriously, complicate the audit process itself, and the resolution of any disputes that arise out of that process. Like the related decision in Bell v. Kentucky, No. 83-1798, the decision below thus creates a problem that, in the absence of a definitive correction by this Court, can be expected to recur with some frequency and to exacerbate federal-state relations whenever it does so. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX. E. LEE Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General HARRIET S. SHAPIRO Assistant to the Solicitor General AL J. DANIEL, JR. Attorney JUNE 1984 /1/ As the Court explained (slip op. 1-2): "Local educational agencies obtain federal (Title I) grants through state educational agencies, which in turn obtain grants from the Department of Education upon providing assurances to the Secretary that the local educational agencies will spend the funds only on qualifying programs. Section 182(a), 20 U.S.C. 2734 (1976 ed. Supp. V)" (footnotes omitted). /2/ Although the court of appeals acknowledged that appellate courts do not generally consider issues that have not been passed on by the agency or court whose decision is under review, it concluded that an exception to this rule was appropriate here because it believed the issue to be one "of national importance, which is singularly within the competence of appellate courts and is not predicated on complex factual determinations" (App., infra, 3a-4a n.1). /3/ The Court did not find it necessary at that stage of the case to address directly the question presented here -- whether the substantive provisions of the 1978 Amendments apply retroactively (slip op. 3 n.3). It did, however, retroactively apply the provisions of the 1978 Amendments that merely changed the forum for review from the Title I Audit Hearing Board to the Education Appeal Board, noting that "(a)s Justice Holmes explained for the Court in Hallowell v. Commons, 239 U.S. 506, 508 (1916), a change of forum 'takes away no substantive right' and thus can apply retroactively" (Bell v. New Jersey, slip op. 4 n.3). In contrast, the retroactive application of the revised standards now at issue deprives the Secretary of the substantive right to recoup misspent grant funds. /4/ We note that, in 1981, the Senate considered an amendment to an appropriations bill that would have relieved the states of any obligation to repay Title I funds that had been misspent before 1978. Although the amendment was ultimately defeated on a point of order (127 Cong. Rec. S5429 (daily ed. May 21, 1981)), nothing in the debate concerning the desirability of forgiving the accrued liabilities of the states remotely suggests that those liabilities -- which were calculated on the basis of the standards prevailing at the time of the expenditures -- had been altered in any way by the 1978 "clarification" of those standards /5/ Tcherpnin v. Knight, 389 U.S. 332 (1967), the only case cited by the court of appeals, has nothing to do with retroactivity. There, the Court held that the Securities Exchange Act of 1934 was "remedial" in the sense that it provided a new substantive remedy for previously inadequately protected interests, and that it therefore should be interpreted broadly to effectuate that remedial purpose. The Court certainly did not suggest that, because the Act was remedial, it should apply to conduct occurring 0efore the Act was passed. /6/ Significantly, the reference in Bradley to "great national concerns" (416 U.S. at 719) derived from Chief Justice Marshall's language in United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801), in which the Court applied the peace treaty uith France to require the return of a ship seized during the war. There, the Court explained that "in great national concerns where individual rights, acquired by war, are sacrificed for national purposes, the contract, making the sacrifice, ought always to receive a construction conforming to its manifest import * * * ." There is, of course, no remotely similar national concern at issue here. Instead, as in Sikora v. American Can Co., 622 F.2d 1116, 1122 (3d Cir. 1980), "resolution of this case (will) not cause repercussions in the international community, nor (will) it implicate long standing consitutional violations as in Bradley." /7/ Under regulations in effect at the time involved in this case, Title I expenditure records were not required to be maintained beyond five years unless they were involved in an audit; there was no requirement that a state keep expenditure records of the kind necessary for a determination of compliance with the new standard (20 U.S.C. 2732(a)(1)). 45 C.F.R. 116.54 (1972). Accord, 34 C.F.R. 200.56 (Chapter 1 recordkeeping requirement). APPENDIX