The opinion of the court was delivered by: TROUTMAN
Plaintiff's motion for reconsideration invites us to determine whether the recent Supreme Court decision in Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982), should be given retroactive effect.
We conclude that it should and deny the motion.
In determining whether Harlow is entitled to retroactive effect, we are guided by the seminal case of Chevron Oil v. Huson, 404 U.S. 97, 106-07, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971), which held that holdings in civil cases should be limited to prospective application where they "overrul[e] clear past precedent" or announce a rule of law which was not "clearly foreshadowed". Courts should also consider whether retroactive application of the new decision will "further or retard" the new rule and whether "substantial inequitable results" will flow from retroactive application. See also, Perez v. Dana Corp., 545 F. Supp. 950, 951 (E.D. Pa. 1982). In applying this test, courts are reminded that proper deference should be accorded the "long standing" rule that "judicial precedents normally have retroactive as well as prospective effect". National Ass'n. of Broadcasters v. FCC, 180 U.S. App. D.C. 259, 554 F.2d 1118, 1130 (D.C. Cir. 1976). See also, United States v. Holcomb, 651 F.2d 231, 234 (4th Cir. 1981) (per curiam). Hence, plaintiff, in advocating only prospective application of Harlow carries the burden that such treatment is warranted. Talley v. United States Postal Service, 532 F. Supp. 786, 790 (D. Minn. 1982). In describing this burden, some courts require the opponent of retroactive application to meet all three of the Chevron Oil factors. See e.g., N.L.R.B. v. Lyon & Ryan Ford, Inc., 647 F.2d 745, 757 (7th Cir.), cert. denied, 454 U.S. 894, 70 L. Ed. 2d 209, 102 S. Ct. 391 (1981).
Harlow modified the previously accepted method of testing defendants' claims that their conduct was shielded by "good faith" or "qualified" immunity. Prior thereto, defendants, whose official conduct was challenged, had to "objectively" and "subjectively" prove that their conduct was, indeed, in "good faith". Wood v. Strickland, 420 U.S. 308, 321-22, 43 L. Ed. 2d 214, 95 S. Ct. 992 (1975). Harlow abrogated the "subjective" aspect of the "good faith" analysis because the court felt that the "social costs" of such inquiries were impermissibly high. Harlow v. Fitzgerald, 457 U.S. at , 102 S. Ct. at 2737, 73 L. Ed. 2d at 408.
Whether the announced method of testing "good faith" as articulated in Harlow "overruled clear past precedent" or was not "clearly foreshadowed" is a close question. On one hand, the court modified a rule which had been relatively firmly established and had been "frequently" invoked to avoid summary disposition. Harlow v. Fitzgerald, 457 U.S. at , 102 S. Ct. at 2738, 73 L. Ed. 2d at 409. On the other hand, the court's ruling is compatible with the prior holding and rationale of Butz v. Economou, 438 U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978). See, Harlow v. Fitzgerald, 457 U.S. at , 73 L. Ed. 2d at 409. Judge Broderick recently observed that Harlow merely represented an "adjustment" or "refinement" of the "traditional law of qualified immunity". Forsyth v. Kleindienst, 551 F. Supp. 1247, slip op. at 3 (E.D. Pa. 1982) (denying motion for an interlocutory appeal pursuant to 28 U.S.C. § 1292 (b).) We agree.
Although this issue, i.e., whether Harlow announced a rule which was not "clearly foreshadowed", is not subject to facile resolution, we conclude that Harlow merely represents a modification in the law of qualified immunity. Hence, plaintiff has failed to meet the first part of the Chevron Oil test.
Plaintiff also fails to satisfactorily meet the second aspect of the test, whether retroactive application will advance or retard the Harlow holding. Harlow's "refine[ment]" of the immunity analysis, Forsyth v. Kleindienst, 551 F. Supp. 1247 (E.D. Pa. 1982), is predicated upon the "special costs" which inquiries of subjective immunity typically spawn. 457 U.S. at , 102 S. Ct. at 2738, 73 L. Ed. 2d at 409. These include
the expense of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office.
Harlow v. Fitzgerald, 457 U.S. at , 102 S. Ct. 2727 at 2736, 73 L. Ed. 2d at 408. Failure to retrospectively apply Harlow would result in a continuance and augmentation of these "special costs".
We recognize that the retroactive application of Harlow will work a hardship upon plaintiff. We do not believe, however, that this hardship, standing alone, is so great and substantial that it calls for abrogation of the general rule, "familiar to every law student" that judicial decisions normally "operate retrospectively". United States v. Security International Bank, 51 U.S.L.W. 4007, 4010, 459 U.S. 70, 103 S. Ct. 407, 74 L. Ed. 2d 235 (1982).
Finally, although not expressly considering the Chevron Oil analysis, the Third Circuit has sub silentio arrived at the same conclusion which we have reached today. In remanding to the district court, Scott v. Plante, 691 F.2d 634, 639 (3d Cir. 1982) observed that " obviously on remand the trial court will take [ Harlow ] into account . . .". (emphasis added). Additionally, Chief Judge Luongo, relying upon Harlow, barred a claim which arose in December, 1980. Souders v. Parole Agents, 547 F. Supp. 187 (E.D. Pa. September 23, 1982). See also, Forsyth v. Kleindienst, supra, (applying Harlow to a claim which arose in 1970.) Accordingly, we conclude that Harlow applies retroactively; plaintiff's motion to reconsider will be denied.
An appropriate order shall ...