Marino v. Bowers, 80-1395

Citation657 F.2d 1363
Decision Date19 September 1980
Docket NumberNo. 80-1395,80-1395
PartiesNicholas D. MARINO, Appellant, v. G. Roger BOWERS, George M. Metzger and John Welsh, Individually and Officially as members of the Board of Commissioners of Bucks County and Joseph F. Catania, Individually and The Board of Commissioners of Bucks County and County of Bucks, Pennsylvania, Appellees. . Submitted on Briefs Under Third Circuit Rule 12(6)
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Before GIBBONS, WEIS and SLOVITER, Circuit Judges.

Argued In Banc May 11, 1981.

Before SEITZ, Chief Judge, and ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

The issue on appeal in this case is whether the Supreme Court's decision in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), should be applied retroactively. The district court held that it should not, and dismissed appellant's complaint. We find that the court correctly applied the retroactivity factors enumerated in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), and affirm.

II.
A.

Appellant Nicholas D. Marino was hired by the Board of Commissioners of Bucks County, Pennsylvania (hereafter Board) in February 1973 as the maintenance manager of parks and recreation of Bucks County, a nonconfidential, non-civil service position. At that time, the three-member Board had a Democratic majority. Marino at all times relevant to this litigation was a registered Democrat. As a result of the November 1975 election in Bucks County, the composition of the Board changed to a Republican majority. On January 3, 1976, the new Board took office. On February 10, 1976, Marino was discharged.

Marino's complaint alleges that he had at all times performed his duties in a good and satisfactory manner, and that he was discharged "solely by reason of his political party affiliation and because he neither supported nor was a member of the newly elected majority political party and was unable to obtain the sponsorship of the leaders of that party." Because this case reaches us on a motion to dismiss, we must accept these allegations as true. Marino's complaint asserted claims under the First and Fourteenth Amendments of the United States Constitution, as well as under 42 U.S.C. §§ 1983, 1985, 1986 and 1988. Named as defendants were the Board of Commissioners of Bucks County, the County, the current commissioners in their official and individual capacities, and a former commissioner in his individual capacity. 1 Marino requested injunctive and declaratory relief, reinstatement with backpay, and punitive damages.

B.

On June 28, 1976, four months after Marino's discharge, the Supreme Court held that the patronage dismissal of a nonpolicymaking, nonconfidential governmental employee violated the employee's rights to freedom of belief and association guaranteed by the First Amendment. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Three years later, Marino filed his complaint which in substance is based on the Elrod decision. Defendants moved to dismiss the complaint for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). Defendants claimed that the Elrod decision should not be given retroactive effect and that none of the various civil rights statutes pleaded could support the action. In ruling on the motion, the district court looked to the factors set forth in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), as guiding a decision on retroactivity, and concluded that Elrod should not be given retroactive effect. Marino v. Bowers, 483 F.Supp. 765 (E.D.Pa.1980). Marino's other constitutional and statutory claims were also dismissed. Marino raises on appeal only the holdings that Elrod should not be applied retroactively and that he failed to allege a claim cognizable under 42 U.S.C. § 1985(3). 2

III.

It has long been recognized in criminal as well as civil cases that certain judicial rulings or interpretations should operate only prospectively. See, e. g., Gelpcke v. City of Dubuque, 68 U.S. (1 Wall.) 175, 17 L.Ed. 520 (1864); Havemeyer v. Iowa County, 70 U.S. (3 Wall.) 294, 18 L.Ed. 38 (1866); Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). The Supreme Court has held that even when the new ruling involves an interpretation of the Constitution, it will not necessarily be given retroactive effect, thereby weakening the force of the Blackstonian theory that judges do not make but merely "discover" law. Linkletter v. Walker, 381 U.S. at 622-29, 85 S.Ct. at 1733-37.

The factors to be considered in deciding whether a ruling is to be limited to prospective application were summarized in the Chevron case. First we must consider whether the decision overruled "clear past precedent on which litigants may have relied" or whether the issue was one "of first impression whose resolution was not clearly foreshadowed." Chevron Oil Co. v. Huson, 404 U.S. at 106, 92 S.Ct. at 355. Second, we must look to the prior history of the rule in question, its purpose and its effect to ascertain "whether retrospective operation will further or retard its operation." Id. at 107, 92 S.Ct. at 355. Finally, we must weigh "the inequity imposed by retroactive application." Id.

Marino contends that we should not undertake this analysis because a ruling dealing with fundamental personal rights should never be limited to prospective application. However, review of cases holding that constitutional rulings and interpretations should not be applied retroactively demonstrates that the analysis discussed in Chevron and the earlier Linkletter and Stovall decisions has been used in a wide variety of instances. To cite just a few examples, in Linkletter the Court held that the holding of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 111, 5 L.Ed.2d 90 (1961), that the exclusionary rule of the Fourth Amendment applied to the states through the due process clause of the Fourteenth Amendment, would not be applied retroactively. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Similarly, in Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), the Court declined to give retroactive application to the rulings of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which restricted the use of statements made by defendants while in police custody. These cases, although dealing with constitutional rules of criminal procedure, nonetheless implicated fundamental personal rights. Retroactive application of decisions has been denied even where the rulings involved such fundamental rights as the provision for a jury trial in serious criminal cases, DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968) (per curiam); the right to have criminal jury panels from which women were not systematically excluded, Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975) (per curiam); the right to vote in revenue bond elections, Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969) (per curiam); and freedom from "excessive entanglement" of church and state by a scheme of public funding of nonpublic sectarian schools, Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973). This court has limited to prospective application such significant rulings as lack of federal jurisdiction where diversity is "manufactured," McSparran v. Weist, 402 F.2d 867 (3d Cir. 1968) (en banc), cert. denied, 395 U.S. 903, 89 S.Ct. 1739, 23 L.Ed.2d 217 (1969); lack of adjudicatory power of improperly convened special court-martial tribunals, Brown v. United States, 508 F.2d 618 (3d Cir.), cert. denied, 422 U.S. 1027, 95 S.Ct. 2621, 45 L.Ed.2d 684 (1975); and the unconstitutionality of ex parte replevin procedures, Kacher v. Pittsburgh National Bank, 545 F.2d 842 (3d Cir. 1976). See also G. H. McShane Co. v. McFadden, 554 F.2d 111 (3d Cir.), cert. denied, 434 U.S. 857, 98 S.Ct. 178, 54 L.Ed.2d 129 (1977). In each case we considered whether retroactive application was warranted under the analysis suggested in Chevron or its predecessors. We turn then to that analysis.

A. Did Elrod v. Burns Establish a New Rule of Law?

In Hanover Shoe, Inc. v. United Shoe Machinery Corp., 377 F.2d 776 (3d Cir. 1967), aff'd in part, rev'd in part, 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), antitrust plaintiffs who had proven defendant had monopoly power but had not shown that it had actually engaged in predatory practices sought damages for defendant's monopolization for the entire period covered by the statute of limitations. This court held that the plaintiffs could only collect damages from the date of the Supreme Court's opinion in American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946), which we read as establishing a new rule that proof of predatory practices was not essential to a successful claim under section 2 of the Sherman Act. 377 F.2d at 787-90. We reasoned that the defendants had relied on clear and established doctrine and that the new rule of American Tobacco should only be applied prospectively.

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