Opinion 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.
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.
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:
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.
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.
The remedial purposes found in Ralpho apply here with equal force. The House Report indicated that Pub.L.No.96-486
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[
However, in Ralpho this court stopped short of a full embrace of retroactivity. Instead, the court held only that the 1976 amendment
569 F.2d at 615 n.51 (emphasis added).
This action appears to be "embarrassed by the statute of limitations." Using 1974 as the year the statute of limitations began
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.
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.
III. SHOULD THIS COURT AFFIRM THE DISTRICT COURT'S DISMISSAL ON OTHER GROUNDS?
Appellee argues that even if the December 1 amendment confers jurisdiction in this case, this court can and should affirm the judgment of the District Court for failure to state a claim upon which relief can be granted. Appellee asks this court to independently determine from the record that, as a matter of law, appellant cannot make out a Bivens claim for damages. However, appellee admits that in order for appellee to establish the alternative ground for affirmance, a full development of the background of this case, with reference to the record in the District Court, is required.
It is a time-honored rule of law that "[a] successful party in the District Court may sustain its judgment on any ground that finds support in the record." Jaffke v. Durham, 352 U.S. 280, 281, 77 S.Ct. 307, 308, 1 L.Ed.2d 314 (1952). But appellee's own argument belies the relevance of this principle to this case. Appellee wishes to use this appeal to develop a record sufficient to permit this court to affirm, but if there is a record to be developed, it is for the District Court to do so in the first instance. If the District Court should grant summary judgment for appellee, the case would then be in a proper posture to be heard on appeal.
As the Supreme Court noted in Dandridge v. Williams, 397 U.S. 471, 476 n.6, 90 S.Ct. 1153, 1157, 25 L.Ed.2d 491 (1970), "[w]hen attention has been focused on other issues ..., it may be appropriate to remand the case rather than deal with the merits of that question in this Court." Here the District Court's attention was focused almost entirely on the jurisdictional question. It is far better to return the case to the District Court for it to determine for the first time the merits of the case.
We hold that Pub.L.No.96-486 is to be applied retroactively to cases pending on appeal.
Vacated and remanded.
628 F.2d at 92-93 (emphasis in original) (footnotes omitted).
It cannot be gainsaid that Congress knows how to restrict the retroactive application of the laws it enacts if it so wishes. When Congress amended 28 U.S.C. § 1343 to include the District of Columbia within the meaning of "state" for purposes of the statute, Pub.L.No.96-170, 93 Stat. 1283 (1979), Congress specifically provided that the amendment "shall apply with respect to any deprivation of rights, privileges or immunities secured by the Constitution and laws occurring after the date of enactment of this Act." Id. § 3 (emphasis added). Congress thus elected not to apply this amendment to pending cases based on a past wrong. Fenster v. Schneider, 636 F.2d 765, 767 n.2 (D.C. Cir. 1980) (Jurisdiction found to exist on appeal under § 1343 because plaintiff sought injunctive relief against a continuing wrong).
(emphasis in original) (citation and footnotes omitted).
The December 1 amendment repealing the last vestige of the amount-in-controversy requirement in federal question cases is directed at the remedy. Pub.L.No.96-486 does not at all alter the responsibilities of federal officials or employers sued in their individual capacity. The amendment does adjust the extent and method of enforcement of liability, in securing a federal court without regard to an amount-in-controversy.