Eikenberry v. Callahan

• Decision Date: 30 April 1981
• Docket Number: No. 80-2514,80-2514
• Citation: 653 F.2d 632
• Parties: Peter G. EIKENBERRY, Appellant, v. Nicholas P. CALLAHAN.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 632

653 F.2d 632

209 U.S.App.D.C. 377

Peter G. EIKENBERRY, Appellant, v. Nicholas P. CALLAHAN.

No. 80-2514.

United States Court of Appeals District of Columbia Circuit.

April 30, 1981.

Leon Friedman and Mark Lynch, Washington, D. C., on motions for appellant.

Robert L. Begleiter, Sp. Asst. U. S. Atty., Brooklyn, N. Y., on motions for appellee.

Before McGOWAN, Chief Judge, WRIGHT and WILKEY, Circuit Judges.

Opinion PER CURIAM.

PER CURIAM:

On October 31, 1980, the District Court dismissed for lack of subject-matter jurisdiction a Bivens First Amendment action brought under 28 U.S.C. § 1331(a) by appellant against a former FBI official. ¹ The District Court found that "to a legal certainty, damages in the instant case do not exceed $10,000." ² Appellant moved for reconsideration November 8, 1980, but this request was denied November 12. On December 1, 1980, the Federal Question Jurisdictional Amendments Act of 1980 ³ became law, eliminating the $10,000 amount-in-controversy requirement for federal question cases under § 1331. ⁴ Appellant filed this appeal from the District Court's dismissal December 8, 1980. On February 4, 1981, appellant filed a motion for summary reversal. Appellee moved for summary affirmance March 12, 1981.

Appellant argues that the recent amendment to § 1331 applies to this case and requires this court to reverse the District Court's order of dismissal. Appellee contests the applicability of the amendment to this case, but alternatively asks this court to affirm for failure to state a First Amendment claim upon which relief can be granted. Because we hold that Pub.L.No.96-486 applies to cases pending on appeal, we vacate the order of dismissal and remand the case to the District Court for further proceedings.

I. BACKGROUND

Peter G. Eikenberry ran unsuccessfully for the Democratic nomination for Congress against John J. Rooney, the incumbent, in 1968 and 1970. On February 25, 1974, the New York Times published an article revealing that in 1968 the FBI had supplied Rooney with "secret" information compiled on Eikenberry by the FBI at the request of an aide to Rooney. Nicholas Callahan, then Assistant Director of the Administrative Division of the FBI, delivered the information to Rooney, with the approval of then Director J. Edgar Hoover.

Eikenberry filed a complaint April 4, 1974, in the Eastern District of New York. On October 22, 1979, this case was transferred to the District Court in this circuit. Appellee renewed his motion for summary judgment in the District Court here. Appellee argued below that the statute of limitations barred Eikenberry's suit, that Eikenberry had failed to state a claim upon which relief can be granted, and that, in any event, appellee was immune from suit. The Court sua sponte raised the jurisdictional issue, and after the parties briefed this issue, the Court dismissed the action for lack of jurisdiction.

II. DOES PUB.L.NO.96-486 APPLY TO THIS CASE?

Section 4 of Pub.L.No.96-486 states:

This act shall apply to any civil action pending on the date of enactment of this Act.

In Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), the Supreme Court set out the principles of retroactivity to be applied here.

(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.

In the absence of an express congressional statement on the applicability of legislation to pending cases, retroactivity is the rule. As the Supreme Court stated in Bradley, "(E)ven where the intervening law does not explicitly recite that it is to be applied to pending cases, it is to be given recognition and effect." 416 U.S. at 715, 94 S.Ct. at 2018. It must be emphasized that it is for Congress to specifically provide for nonretroactivity if that is its intent. ⁵

In 1976, Congress amended § 1331(a) to eliminate the jurisdictional amount requirement in most federal question cases "action(s) brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity." ⁶ Pub.L.No.94-574, § 2, 90 Stat. 2721 (1976). There Congress did not specify, as it did in the December 1, 1980 amendment, that the 1976 amendment to § 1331(a) was to be applied to pending cases. ⁷ In Ralpho v. Bell, 569 F.2d 607, 615 n.51 (D.C. Cir. 1977), this court, "bereft ... of any congressional specification," analyzed legislative intent to determine whether that act applied to pending cases. The court concluded that the amendment at issue there was to be applied to that pending case, in light of the remedial nature of the amendment.

The remedial purposes found in Ralpho apply here with equal force. The House Report indicated that Pub.L.No.96-486

will complete the work of the 94th Congress which eliminated the jurisdictional amount requirement in cases brought against Federal defendants. It resolves the anomolous (sic) situation faced by persons who, although their Federal rights have been violated, are barred from a Federal forum solely because they have not suffered a sufficient economic injury.

H.R.Rep.No.1461, 96th Cong., 2d Sess., at 1 (1980), U.S.Code Cong. & Admin.News 1980, p. 5063. In Section 4 of Pub.L.No.96-486, Congress expressly indicated its intent "that this bill shall apply to any civil action pending in Federal ( ⁸ court on the date of enactment. By putting congressional intent into immediate effect, this provision will eliminate ongoing jurisdictional battles, thus saving valuable court time." Id. at 4 (emphasis added).

However, in Ralpho this court stopped short of a full embrace of retroactivity. Instead, the court held only that the 1976 amendment

was intended to reach at least one category of already-pending cases (,) ... those, unembarrassed by the statute of limitations or legal impediment of any other kind, the plaintiff could refile after the Act took effect. We think it entirely reasonable to suppose that in the instance of the suit that clearly can be reinstated Congress felt it the part of common sense not to require the inconvenience of refiling.

569 F.2d at 615 n.51 (emphasis added). ⁹ The court "(left) for another day consideration of the Act's applicability to situations of a different type." Id. ¹⁰

This action appears to be "embarrassed by the statute of limitations." Using 1974 as the year the statute of limitations began to run, the three-year period applicable to Bivens actions brought in the District of Columbia ¹¹ ran in 1977, well before Congress enacted Pub.L.No.96-486. But the discussion in Ralpho was never intended to finally and completely settle the question of the amendment's applicability to pending cases. This court's express reservation of the amendment's broader reach is not authority for the proposition that retroactivity is permissible only if refiling would not be barred by the statute of limitations. Indeed, the Supreme Court, citing Ralpho with approval, appeared to indicate that the amendment is to be applied retroactively without regard to whether refiling would be precluded by the limitations period. Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 607-608 n.6, 98 S.Ct. 2002, 2004-2005, 56 L.Ed.2d 570 (1978). ¹²

Appellee also invites this court to construe the word "pending" to exclude cases no longer pending in district court. Appellee contends that Pub.L.No.96-486 and the section it amended concern only the jurisdiction of the district courts over cases before those courts and that it does not apply to cases pending in other fora. Because the District Court denied appellant's motion for reconsideration November 12, the action was not pending in that court on December 1, the date of enactment. Such a narrow definition of "pending" finds no support in the case law, and a restricted application of the retroactivity Congress mandated is plainly at odds with the discernible legislative intent. The ordinary meaning of "pending" includes cases pending on appeal. In Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 272-274, 281-283, 89 S.Ct. 518, 520-522, 525-526, 21 L.Ed.2d 474 (1968), a case relied on by the Court in Bradley, the Supreme Court applied to the case before it a circular ordered by the Department of Housing & Urban Development after the Supreme Court had granted certiorari. If a regulatory directive is applied to a case pending before the Supreme Court on a writ of certiorari (after the North Carolina Supreme Court had affirmed the state court eviction order), then certainly a statute which specifies that it shall apply to any pending civil action must apply to a case pending on direct appeal from the District Court. ¹³

Lastly, appellee argues that the rule of retroactivity confirmed by the Supreme Court in Bradley is inapplicable where (1) the change in the law is jurisdictional, not substantive, and (2) "in mere private cases between individuals," Bradley, 416 U.S. at 711, 94 S.Ct. 2016, quoting United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110, 2 L.Ed. 49 (1801). Conceding that there is a reluctance to apply to pending cases a change in the law conferring subject matter jurisdiction, see Corporacion Venezolana de Fomento v. Vintero Sales Corp., 629 F.2d 786, 790-791 (2d Cir. 1980), this is precisely what the Supreme Court did in Andrus in the absence of explicit congressional direction to do so. ¹⁴

Appellee's reliance on Chief Justice Marshall's exposition in Schooner Peggy is also misplaced. A suit against a former FBI official for violation of appellant's civil rights is not the sort of "mere private case( ) between individuals" contemplated by the Court. In any event, the concern voiced in Schooner Peggy is echoed both in the manifest injustice standard of Bradley and the remedy-right dichotomy explicated by Judge McGowan in Hastings, supra note 14....