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Marino v. Bowers

decided: September 8, 1981; As Amended September 11, 1981.



Before Gibbons, Weis and Sloviter, Circuit Judges. Before Seitz, Chief Judge, and Aldisert, Adams, Gibbons, Hunter, Weis, Garth, Higginbotham and Sloviter, Circuit Judges.

Author: Sloviter



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.



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.*fn1 Marino requested injunctive and declaratory relief, reinstatement with backpay, and punitive damages.


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).*fn2


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, 364 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.


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.

On appeal, the Supreme Court did not pass upon our theory of prospective application because it determined that the rule announced in American Tobacco was not a new one. Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 88 S. Ct. 2224, 20 L. Ed. 2d 1231 (1968). The Court, noting that American Tobacco relied on existing authorities, found no "abrupt and fundamental shift in doctrine as to constitute an entirely new rule which in effect replaced an older one." Id. at 497, 88 S. Ct. at 2233. It concluded that it "(could) not say that prior to those cases potential antitrust defendants would have been justified in thinking that then current antitrust doctrines permitted them to do all acts conducive to the creation or maintenance of a monopoly so long as they avoided direct exclusion of competitors or other predatory acts." Id. at 499, 88 S. Ct. at 2234.

Thus, in determining whether the rule of law in question fits within the first Chevron factor, a court must look both to the state of the law at the time of the ruling and the reasonable perceptions of those persons who claim to have relied on it. Marino argues that Elrod had a firm foundation in previous decisions of the Supreme Court, particularly West Virginia Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943), and Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972), and therefore was "clearly foreshadowed." In Barnette, the Court held unconstitutional a Board of Education resolution requiring all teachers and pupils in public schools to salute the flag. In Perry, the Court held that a state university professor could not be discharged for exercising his constitutional right to criticize his superiors on matters of public concern. While these cases reaffirmed the broad diapason of the First Amendment, we do not believe that either case was a harbinger of the destruction of the patronage system effected by Elrod. The fact that Perry and other First Amendment cases were subsequently relied upon by the Elrod majority does not signify that Elrod was clearly foreshadowed.

On the contrary, there was a substantial line of federal cases which had rejected constitutional challenges to the dismissal of "at will" employees for patronage purposes. Nunnery v. Barber, 503 F.2d 1349 (4th Cir. 1974), cert. denied, 420 U.S. 1005, 95 S. Ct. 1448, 43 L. Ed. 2d 763 (1975); Alomar v. Dwyer, 447 F.2d 482 (2d Cir. 1971) (per curiam), cert. denied, 404 U.S. 1020, 92 S. Ct. 683, 30 L. Ed. 2d 667 (1972). See also Young v. Coder, 346 F. Supp. 165 (M.D.Pa.1972); Norton v. Blaylock, 285 F. Supp. 659 (D.Ark.1968), aff'd, 409 F.2d 772 (8th Cir. 1969). In Nunnery v. Barber, supra, the court held that dismissal of a state liquor store manager did not violate either the First or Fourteenth Amendment, and distinguished Perry v. Sindermann on the ground that it did not involve a patronage employee. That court failed to see the inevitable connection between Perry and patronage dismissals which Marino contends should have been apparent to Bucks County officials. In Alomar v. Dwyer, the Court of Appeals for the Second Circuit rejected the claim of a government employee that her discharge based on her refusal to change her political allegiance to the incumbent party violated her rights of free speech and assembly. 447 F.2d at 483. The court held that the "plain hard fact is that so far as the Constitution is concerned there is no prohibition against the dismissal of Government employees because of their political ... affiliations." Id., quoting Bailey v. Richardson, 86 U.S. App. D.C. 248, 182 F.2d 46, 59 (D.C.Cir.), aff'd per curiam by an equally divided court, 341 U.S. 918, 71 S. Ct. 669, 95 L. Ed. 1352 (1950). In Young v. Coder, 346 F. Supp. at 169, the court, although declining to reach the constitutionality of the "spoils system", concluded that the spoils system "has to date been considered a valid exercise of discretionary authority." Similarly, in Norton v. Blaylock, the court commented, "Aside from considerations of race, religion or constitutionally protected conduct, none of which appear to be involved here, a public employee still assumes the risk, as far as the Constitution is concerned of being discharged for personal or political reasons." 285 F. Supp. at 662.

More importantly, there was a clear holding of the Pennsylvania Supreme Court that affirmed the legality of such patronage firings. In 1971, Pennsylvania transportation workers sought to challenge the dismissals they anticipated under a forthcoming change of administration. AFSCME v. Shapp, 443 Pa. 527, 280 A.2d 375 (1971).*fn3 Plaintiffs contended that they "should be entitled to notice and a hearing before discharge, and that political affiliation is not a proper or lawful basis or ground for discharge." Id. at 536, 280 A.2d at 376 (emphasis added). The Pennsylvania Supreme Court held that plaintiffs had not established a constitutional right to retain their jobs, notwithstanding their allegations that they were being fired solely on the grounds of political sponsorship or affiliation. Id. at 377-78. See also Scott v. ...

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