dissenting:
I cannot agree with the majority’s conclusion that the Civil Rights Restoration Act applies retroactively to Lussier’s claim. Because I feel that the law requires this Court to affirm the district court opinion, I respectfully dissent.
A. Retroactivity
In Bennett v. New Jersey, 470 U.S. 632, 105 S.Ct. 1555, 84 L.Ed.2d 572 (1985), the Supreme Court held that “absent a clear indication to the contrary in the relevant statutes or legislative history, changes in the substantive standards governing federal grant programs do not alter obligations and liabilities arising under earlier grants.” Bennett, 470 U.S. at 641, 105 S.Ct. at 1561. The Court based its decision on the fact that enforcement of the requirements of federal grant programs must be evaluated by the law in effect at the time the grants are made. Id. at 640, 105 S.Ct. at 1560. Otherwise, the government’s right to recover misspent funds would “depend on the *672fortuitous timing of completion of the review process.” Id. In other words, “statutes affecting substantive rights and liabilities are presumed to have only prospective effect.” Id. at 639, 105 S.Ct. at 1560. Similarly, this Court has held that “statutory changes that are procedural or remedial in nature apply retroactively,” United States v. Vanella, 619 F.2d 384, 386 (5th Cir.1980), while “retrospective operation will not be given to a statute which interferes with antecedent rights.” Id. at 395 (quoting Greene v. United States, 376 U.S. 149, 160, 84 S.Ct. 615, 621, 11 L.Ed.2d 576 (1964)).
Section 794a(a)(2) of the Rehabilitation Act states that anyone discriminated against in violation of section 794 shall have available the remedies found in Title VI of the Civil Rights Act of 1964 (42 U.S.C.A. § 2000d et seq.). Section 602 of Title VI allows compliance to be effected by termination of or refusal to grant federal assistance. 42 U.S.C.A. § 2000d-l. Thus, like the statute involved in Bennett, section 794 gives the federal government a right to rescind assistance if there is no compliance. Under the broad holding in Bennett, therefore, a substantive change in section 794 cannot alter any obligations and liabilities arising under the earlier grants.
The majority concludes that Bennett and National Wildlife Federation v. Marsh, 747 F.2d 616 (11th Cir.1984), are not dispos-itive because they involve “amendments to statutory grant programs which substantively altered eligibility requirements.” I disagree. Before March 1988, agencies and institutions were liable under section 794 only if a specific program or activity received federal assistance. After the amendment’s passage, such agencies and institutions became liable if they themselves received any federal funding. It is clear, therefore, that the 1988 amendment alters the substantive obligations and liabilities of agencies and institutions receiving federal funds. The amendment clearly alters eligibility requirements. Under Bennett, such changes cannot apply retroactively. The majority also concludes that retroactive application of the amendment will not work manifest injustice under Bradley because the amendment affects the rights of agencies rather than the rights of individuals. I fail to see how this injustice is any more just because it disadvantages a government agency rather than an individual.
The majority finds that the Civil Rights Restoration Act works no substantive change, but is merely remedial in nature, and clarifies what Congress intended all along. I disagree for two reasons. First, while Congress may have intended section 794 to apply to any agency receiving federal funds, the Supreme Court held otherwise in Grove City College v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), and agencies justifiably gauged their obligations under that decision. Second, even if the Restoration Act is simply remedial, this Court and the Supreme Court also have held that a statute, even one which is remedial in nature, may not be applied retroactively to affect antecedent rights. Vanella, 619 F.2d at 395; Greene v. United States, 376 U.S. 149, 160, 84 S.Ct. 615, 621, 11 L.Ed.2d 576 (1964). I cannot reconcile the retroactive application of the Restoration Act with these principles.
Lussier’s suit against Wainwright, Uhrig and Fortner is precluded for an additional reason. There is some contention between the parties, raised in the Department’s motion to dismiss and addressed by the majority in footnote 10, regarding whether Lussier may sue the individual defendants under section 794. The Department argues that these individuals are shielded from liability by qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Even assuming that individuals may be sued under section 794 —and this Circuit has not so held1 — it appears that qualified immunity would protect these defendants. They are government officials — directors and officers of the correctional institute — performing the discretionary functions of hiring and firing. *673Id. at 818, 102 S.Ct. at 2788. At the time of Lussier’s firing in 1983, they could not have reasonably been expected to know that section 794 applied to Lussier, because this Circuit did not define contagious disease as a handicap until 1985, when it decided Arline v. School Bd. of Nassau County, 772 F.2d 759 (11th Cir.1985); that decision was not affirmed by the Supreme Court until 1987. School Bd. of Nassau County v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987). As the majority suggests, therefore, the individual defendants must be allowed to raise the defense of qualified immunity regardless of the outcome of the retroactivity question.
B. Section 1983
The fact that Lussier has no cause of action under section 794 also should preclude his claim that the defendants violated 42 U.S.C.A. § 1983 by discriminating against him under section 794. I agree with the majority, however, that the summary judgment on the equal protection/rational basis claim must be reversed and that suit must be remanded to the district court for further factual development regarding this claim. The fact that the defendants did not violate section 794 does not foreclose the possibility that they may have had no rational basis for refusing to rehire Lussier after he recovered from the hepatitis.
C. Retroactive Back Pay and Benefits
My conclusion that the Restoration Act does not apply retroactively leads me to conclude that Lussier has no claim for retroactive back pay and benefits. Even if Lussier did have a section 794 claim, however, I am hard-pressed to see how section 2000d-7 provides him the means to recover back pay and benefits. First, it does not appear from my review of the record that this issue is properly before the Court. It was in the November 18, 1987 grant of summary judgment on Lussier’s section 1983 claim against Wainwright that the district court denied Lussier retroactive relief. Lussier did not appeal from that judgment. He appealed from the October 18, 1988 summary judgment on his section 794 claims, which did not address the back pay/benefits question, and from the March 28, 1989 denial of his motion to reconsider that summary judgment. Because Lussier did not appeal from the judgment which resolved these issues, it is not proper for this Court to consider them.
Had the question properly been appealed, Lussier has not supplemented his pleadings to set forth “transactions or occurrences or events that have happened since the date of the pleading_” Fed.R.Civ.P. 15(d). It is not the role of this Court to instruct Lussier in the art of proper pleading. Absent such a supplement, Lussier has no claim.
For the above reasons, I conclude that this Court should affirm the district court on all issues except Lussier’s equal protection claim. That issue should be remanded for further factual development.
. Because section 794 gives a right of action against programs or activities receiving federal funds, it is difficult to see how one could interpret the statute as providing a right of action against individuals. Individuals are not programs or activities.