MEMORANDUM AND ORDER
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.