The opinion of the court was delivered by: PRATT
This action is before the Court upon defendants' renewed motion for summary judgment. To facilitate an appreciation of the issues currently before this Court, we believe it appropriate to present the background of this litigation.
A. History of this Action.
This Court on July 20, 1973 dismissed the action, entering summary judgment for defendants and denying plaintiffs' cross-motion for partial summary judgment on the issue of liability. 363 F. Supp. 936 (D.D.C. 1973). We determined that the surveillance was conducted pursuant to the President's national security powers and therefore was not cognizable under Title III or under the Fourth Amendment. 363 F. Supp. at 942-44. Our holding was reversed by the United States Court of Appeals for the District of Columbia Circuit en banc, a majority concluding that the Fourth Amendment required a warrant and a plurality determining that Title III also mandated the issuance of a warrant in the circumstances presented in the subject case. Zweibon v. Mitchell, 170 U.S. App. D.C. 1, 516 F.2d 594 (1975) (en banc), cert. denied, 425 U.S. 944, 48 L. Ed. 2d 187, 96 S. Ct. 1684 (1976). In its remand of the case to this Court, the Court of Appeals directed our attention to defendants' interposition of three affirmative defenses to an assessment of liability: (1) whether the Court's determination that the wiretaps were illegally instituted should be applied to establish liability for activity antedating the Supreme Court's decision in United States v. United States District Court, 407 U.S. 297, 32 L. Ed. 2d 752, 92 S. Ct. 2125 (1972) (hereinafter Keith), if the determination in this case were based upon the Keith decision; (2) whether the doctrine of official immunity insulated these defendants from liability for these actions performed in their official capacities; and (3) whether damage relief should be denied because defendants acted in the good faith belief that their actions were lawful. 516 F.2d at 607, n.18.
Defendants have not advanced the second defense in their renewed motion for summary judgment, preferring to reserve this issue until the Supreme Court rules on the question of official immunity in a constitutional tort context in Butz v. Economou, 535 F.2d 688 (2d Cir. 1976), cert. granted, 429 U.S. 1089, 97 S. Ct. 1097, 51 L. Ed. 2d 534 (1977). See Memorandum of Points and Authorities in Support of Defendants' Renewed Cross-Motion for Summary Judgment, at 27, n.18. We therefore decline to consider and evaluate the immunity defense at this time.
The third defense, that of good faith, is likewise not reached by the Court at this time.
We therefore direct our attention to the issue of retroactive application of the Keith decision, framed by our Court of Appeals as follows:
"If the illegality of these wiretaps is based upon the Supreme Court's decision in Keith, . . . there are strong factors which dictate that that decision should not be applied retroactively in this damage suit, which is based upon surveillance which occurred before the date of that decision."
As a preliminary and necessary inquiry to our analysis of the retroactivity question, we note that the en banc Court of Appeals has found that "this case does indeed involve the foreign affairs of this country and therefore falls outside the holding in Keith and into the area it reserved for future disposition." 516 F.2d at 652. Although the Court recognized that Zweibon presented an issue which the Keith decision had reserved for future disposition, it relied upon the Keith rationale to conclude that a warrant should have been secured before these electronic surveillances were instituted. Zweibon v. Mitchell, supra, 516 F.2d at 652-53.
(1) Constitutional cause of action. We therefore turn our attention to the criteria summarized and endorsed by the Supreme Court in Chevron Oil v. Huson, 404 U.S. 97, 106-07, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971), for determining whether the ruling of the Court of Appeals should be applied prospectively only or whether liability should be assessed in this action. The Court presented the following guidelines:
"First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that 'we must . . . weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.' Finally, we have weighed the inequity imposed by retroactive application, for 'where a decision of this Court could produce substantial inequitable results if ...