TGX Corporation v. Simmons

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 20, 1993
• Docket: 92-3375
• Status: Published

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 92-3375 _____________________

TGX CORP.,

Plaintiff,

versus

GLORIA ANNETTE TURNER SIMMONS, ET AL.,

Defendants-Appellants Cross-Appellees,

GREENWICH INSURANCE COMPANY, ET AL.,

Defendants-Appellees Cross-Appellants.

* * * * * *

GAYLON D. SIMMONS, ET AL.,

Plaintiffs-Appellants Cross-Appellees,

J.C. TEMPLETON, ET AL.,

_______________________________________________________

Appeal from the United States District Court for the Eastern District of Louisiana _______________________________________________________

* * * * * * _____________________

No. 92-1662 _____________________

PACIFIC MUTUAL LIFE INSURANCE CO.,

Plaintiff-Appellant,

FIRST REPUBLICBANK CORP., ET AL.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Texas _______________________________________________________ (July 20, 1993)

Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges.

REAVLEY, Circuit Judge:

Plaintiffs who suffered dismissals in two separate

securities-fraud cases asked the district courts to reinstate

their claims under § 27A(b) of the Securities Exchange Act, 15

U.S.C. § 78aa-1(b), which Congress enacted in November 1991. The

district courts denied these motions after holding that § 27A(b)

violates the Constitution by disturbing final judgments and

invading judicial authority. We conclude that the legislation is

constitutional and we reinstate the plaintiffs' suits.

I. BACKGROUND

A. PACIFIC MUTUAL LIFE INS. CO. V. FIRST REPUBLICBANK CORP., ET AL.

In March 1991, Pacific Mutual Life Insurance Company (PMLI)

sued investment bankers and accountants (collectively PMLI Defendants)1 for securities fraud under § 10(b) of the 1934

Securities Exchange Act (1934 Act), 15 U.S.C. § 78j(b). PMLI's

claims arise from the June 1987 merger of InterFirst Corporation

and RepublicBank Corporation, PMLI's purchase of InterFirst

securities in July and September 1987 for approximately $8

million, and the PMLI Defendants' facilitation of those

transactions.

From long before PMLI purchased the securities to the time

after PMLI filed its suit, this court determined the statute of

limitations for implied private actions under § 10(b) according

to analogous state law. When PMLI filed its suit in the United

States District Court for the Northern District of Texas, our

precedent recognized that the four-year limitations period

applicable to fraud actions in Texas also governs § 10(b) actions

filed there. In re Sioux, Ltd., Sec. Litig. v. Coopers &

Lybrand, 914 F.2d 61, 64 (5th Cir. 1990). For that reason,

although the PMLI Defendants filed dispositive motions under FED.

R. CIV. P. 9(b) and 12(b)(6), they did not contest the timeliness

of PMLI's suit.

While these motions awaited the district court's

consideration, the Supreme Court issued Lampf, Pleva, Lipkind,

Prupis & Petigrow v. Gilbertson, 111 S.Ct. 2773 (1991). Lampf

implicitly overrules Sioux, Ltd. and many similar cases in other

circuits with its holding that the Securities Exchange Act as

1 The PMLI Defendants are Morgan Stanley & Co., Goldman Sachs & Co., Ernst & Young & Co., and Salomon Brothers Inc.

3 written in 1934, not state law, establishes the limitations

period for § 10(b) suits. Id. at 2780. The Court read the

Securities Exchange Act of 1934 to establish a uniform rule that

"[l]itigation instituted pursuant to § 10(b) ... must be

commenced within one year after the discovery of the facts

constituting the violation and within three years after such

violation." Id. at 2782 (1-and-3 rule).

On the same day that the Court rendered Lampf, it decided

James B. Beam Distilling Co. v. Georgia, 111 S.Ct. 2439 (1991).

A plurality of the Beam Court held that Georgia's Supreme Court

erred by "refus[ing] to apply a rule of federal law retroactively

after the case announcing the rule has already done so." Id. at

2446. Beam teaches that "when th[is] Court has applied a rule of

law to the litigants in one case it must do so with respect to

all others not barred by procedural requirements or res

judicata." Id. at 2448.

Because the Lampf Court applied the 1-and-3 rule to

eliminate Gilbertson's § 10(b) claim, Beam required courts to

apply the limitation rule announced in Lampf to pending claims

under § 10(b). The PMLI Defendants promptly brought Lampf and

Beam to the district court's attention, and the court dismissed

PMLI's § 10(b) claims with prejudice in August 1991. The

district court based its dismissal on the fact that "the face of

[PMLI's complaint establishes] that this action was filed more

than three years after the alleged misrepresentations or

4 omissions upon which [PMLI's] claim rests." Recognizing no way

around Lampf and Beam, PMLI did not appeal.

Three months later, however, Congress provided a way around

Lampf and Beam by passing § 27A, which provides:

(a) Effect on Pending Causes of Action. )) The limitation period for any private civil action implied under section 10(b) of this Act that was commenced on or before June 19, 1991, shall be the limitation period provided by the laws applicable in the jurisdiction, including principles of retroactivity, as such laws existed on June 19, 1991.

(b) Effect on Dismissed Causes of Action. )) Any private civil action implied under section 10(b) of this Act that was commenced on or before June 19, 1991 )) (1) which was dismissed as time barred subsequent to June 19, 1991, and (2) which would have been timely filed under the limitation period provided by the laws applicable in the jurisdiction, including principles of retroactivity, as such laws existed on June 19, 1991, shall be reinstated on motion by the plaintiff not later than 60 days after [December 19, 1991].

1934 Act, § 27A (amended by P.L. 102-242 (December 19, 1991)),

codified at 15 U.S.C. § 78aa-1. On January 31, 1992, PMLI filed

a motion to reinstate pursuant to § 27A(b). The PMLI Defendants

challenged the constitutionality of § 27A(b), and the district

court admitted the United States as an intervenor to explain why

§ 27A is constitutional. After considering the parties' written

submissions, the district court held: 1) § 27A(b) contravenes due

process by divesting the PMLI Defendants of their final judgment;

and 2) § 27A contravenes the constitutionally-mandated

retroactivity of new legal rules recognized in Beam. PMLI

5 appeals from the district court's denial of its motion to

reinstate.

B. SIMMONS, ET AL. V. TGX CORP., ET AL.

In 1987, TGX Corporation sued Gaylon Simmons2 over a $21

million stock purchase contract which the parties executed in

November 1986, and Simmons filed a counterclaim against TGX under

§ 10(b). TGX filed for bankruptcy protection in 1990, staying

the counterclaim. Simmons then filed a separate § 10(b) suit in

March 1990 against attorneys, accountants, and directors

(collectively TGX Defendants)3 who facilitated the stock

purchase.

Simmons sued the TGX Defendants in the United States

District Court for the Eastern District of Louisiana.4 The

parties disputed whether Simmons met Louisiana's two-year

prescriptive period for securities fraud, which this court has

held applicable to § 10(b) claims. Jensen v. Stellings, 841 F.2d

600, 606 (5th Cir. 1988). The Supreme Court rendered Lampf and

Beam before the district court ruled on the parties' limitation

dispute.

2 Gloria Simmons joins Gaylon Simmons as a party to this dispute. 3 The TGX Defendants are J.C. Templeton, Joe H. Foy, Harry V. Carlson, Robert Ted Enloe, III, W.A. Griffin, Thomas L. Kister, Leonard Leon, Edward T. Cotham, Bracewell & Patterson, BDO Seidman, Greenwich Insurance Co., and William M. Templeton. Simmons amended his complaint to add Greenwich and W.M. Templeton as defendants in May 1991. 4 The court consolidated this suit with the suit between TGX Corporation and Simmons.

6 The TGX Defendants informed the district court that Simmons

sued them in March 1990, and his complaint alleges November 1986

misdeeds. They argued that these facts entitled them to

dismissal under Lampf's 1-and-3 rule. Simmons did not dispute

the effect of Lampf, and the district court directed the TGX

Defendants to draft a judgment and order. That document recited:

all of the federal claims asserted are time- barred, and the Defendants are entitled to judgment on those claims as a matter of law; and [the court finds that] final judgment should be entered....

[P]laintiffs' claims ... under ... the Securities Exchange Act of 1934 are hereby dismissed with prejudice.

Simmons asked the district court to delete "with prejudice" from

the judgment to avoid any preclusive effect, and the court

obliged before signing it in August 1991. Simmons did not appeal

this judgment.

Simmons sought the deletion from the August 1991 judgment

because he thought that he could avoid Lampf by adding the TGX

Defendants as parties to the 1987 counterclaim against TGX, and

he did not want the dismissal in the March 1990 suit to preclude

him from doing so. Simmons's idea ultimately proved

unsuccessful,5 and the district court entered another judgment

5 A magistrate permitted Simmons to amend his 1987 counterclaim for purposes of procedure only, but the district court held that the additional claims did not relate back to the 1987 claims, so those claims were still untimely. In its September 1991 minute entry explaining why Simmons's § 10(b) claims were still untimely, the district court stated that the August 1991 judgment did not preclude the amendment to the 1987 counterclaim because the court entered the August 1991 judgment without prejudice.

7 dismissing Simmons's § 10(b) claims against the TGX Defendants in

October 1991. Simmons did not appeal this October 1991 judgment.

With renewed hope from § 27A(b), Simmons filed a Motion to

Reinstate the March 1990 suit in January 1992. The parties

disputed both the applicability and constitutionality of §

27A(b). In March 1992, the district court held: 1) the court

dismissed Simmons's March 1990 § 10(b) suit "as time barred"

within the meaning of § 27A(b) despite the fact that the court

dismissed the suit without prejudice in August 1991; and 2)

Simmons timely filed his § 10(b) claims under Louisiana's two-

year prescription period and Jensen; but 3) § 27A contravenes the

constitutionally-mandated retroactivity of new legal rules

recognized in Beam. TGX Corp. v. Simmons, 786 F. Supp. 587 (E.D.

La. 1992).

In April 1992, Simmons asked for a new trial on his

reinstatement motion. In May 1992, the district court denied

Simmons's motion for a new trial after holding that, in addition

to Beam's implications, § 27A(b) violates due process principles

by upsetting final judgments. Simmons appeals from the district

court's denials of his motion to reinstate and his new-trial

motion. The TGX Defendants cross-appeal the district court's

ruling that Simmons's March 1990 suit falls within the scope of §

27A(b) even though the district court dismissed that suit without

prejudice in August 1991. The United States intervenes to defend

the constitutionality of § 27A(b).

8 II. ANALYSIS

Simmons and PMLI ultimately raise the same novel

constitutional questions, so we decide both appeals in this

opinion. We review the district courts' decisions concerning the

meaning and constitutionality of § 27A(b) de novo. Moulton v.

City of Beaumont, 991 F.2d 227, 230 (5th Cir. 1993); Gray v.

First Winthrop Corp., 989 F.2d 1564, 1567 (9th Cir. 1993). We

proceed without the benefit of prior appellate attention to §

27A(b).

A. WHETHER A CONSTITUTIONAL SECTION 27A(b) HELPS SIMMONS

The TGX Defendants argue that § 27A(b) does not afford

Simmons any relief even if it is constitutional, because Simmons

asked the district court to dismiss his March 1990 claims under §

10(b) without prejudice. But all of their arguments require an

inaccurate reading of § 27A(b).

Congress wrote § 27A(b) to prevent courts from applying

Lampf to cases that plaintiffs filed before the Court rendered

Lampf. Section 27A(b) states a specific procedure (motion for

reinstatement within 60 days of enactment) to restart "[a]ny" §

10(b) claim "commenced on or before June 19, 1991 ... which was

dismissed as time barred" after Lampf, but "would have been

timely filed" before Lampf.

What little legislative history exists for § 27A confirms

that Congress intended to obliterate Lampf and Beam for all cases

9 filed before the Court rendered Lampf.6 See, e.g., 137 CONG. REC.

S17382 (daily ed. Nov. 21, 1992) (Sen. Riegle, § 27A sponsor)

("The language of the bill is designed to return plaintiffs and

defendants to exactly the position that they had on June 19,

1991," the day before the Court rendered Lampf.); id. at H11813

(daily ed. Nov. 26, 1991) (Rep. Markey) ("The language ...

unambiguously reverses the Lampf ruling's application of the 1-

year and 3-year statute of limitations...."). The Supreme Court

itself has recognized as much. See Musick, Peeler & Garrett v.

Employers Ins. of Wausau, 1993 WL 179262 at *5 ("Congress ...

limit[ed] the retroactive effect of [Lampf by directing] the

applicable 'limitation period for any private civil action

implied under [§ 10(b)] that was commenced on or before June 19,

1991....'"); id. at *11 (Thomas, J., dissenting) (Congress

"alter[ed] the retroactive effect of the 10b-5 limitations period

that we adopted in Lampf."). We know of no evidence or reason

that supports a narrower reading of § 27A. Compare Herman &

MacLean v. Huddleston, 103 S. Ct. 683, 689 (1983) (interpreting

securities laws to "further[] their broad remedial purposes").

1. Time-Bar Dismissal

The TGX Defendants seize on the district court's statement

that Simmons did not voluntarily dismiss his § 10(b) claims under

FED. R. CIV. P. 41 by asking the court to dismiss those claims

6 For a comprehensive treatment of the legislative history of § 27A, see Anthony Michael Sabino, A Statutory Beacon or a Relighted Lampf? The Constitutional Crisis of the New Limitary Period for Federal Securities Law Actions, 28 TULSA L.J. 23, 27-30 (1992).

10 without prejudice in August 1991. Simmons, 786 F. Supp. at 590.

They argue that the court's statement is erroneous, and once we

recognize that Simmons voluntarily dismissed his claims, we must

hold that the claims were not "dismissed as time barred" under §

27A(b)(1).

But even if Simmons chose to dismiss his § 10(b) claims, the

record conclusively establishes that he did so because Lampf

rendered those claims time barred. The district court's August

1991 judgment states this very fact. We interpret "dismissed as

time barred" in § 27A(b) to include all cases that were dismissed

because of Lampf's time bar. Simmons satisfies this but-for

scrutiny.

2. Nullification

The TGX Defendants have found language in our cases in which

this court states that the effect of a voluntary dismissal is to

"put the plaintiff in the same legal position in which he would

have been had he never brought the first suit." Taylor v. Bunge

Corp., 775 F.2d 617, 619 (5th Cir. 1985). They would have us

apply this language, irrespective of the reasons for and context

in which we used it, to hold that Simmons's suit vanished upon

voluntary dismissal, leaving nothing to reinstate by operation of

§ 27A(b).

But there is no rule that makes all voluntarily dismissed

cases absolutely null for all purposes. This court has permitted

a district court to resurrect a voluntarily dismissed case under

FED. R. CIV. P. 60. Boehm v. Office of Alien Property, 344 F.2d

11 194 (5th Cir. 1965). And even if there were an absolute-nullity

rule, we could not apply it in the face of contrary congressional

intent unless we could articulate a constitutional basis for

doing so. As we have explained, Congress intended broad relief

from Lampf for any § 10(b) claim "that was commenced on or before

June 19, 1991." Simmons commenced his § 10(b) claims against the

TGX Defendants on March 8, 1990, which places those claims within

the ambit of § 27A(b).

3. Avoidance

The TGX Defendants cite cases holding that courts should

refrain from deciding constitutional questions if possible. See,

e.g., Daylo v. Administrator of Veterans' Affairs, 501 F.2d 811,

819 (D.C. Cir. 1974) ("[W]hen one interpretation of a statute

would create a substantial doubt as to the statute's

constitutional validity, the courts will avoid that

interpretation absent a 'clear statement' of a contrary

legislative intent."). They accompany these cites with creative

readings of § 27A(b) that would avoid constitutional questions,

while conveniently killing Simmons's claims.7 None of their

7 For example, the TGX Defendants suggest that Congress really accomplished nothing whatsoever in § 27A because the "laws applicable ... as such laws existed on June 19, 1991," which § 27A directs courts to apply, are defined by the Securities Exchange Act of 1934, just as Lampf holds. They also suggest that § 27A only replaces the one-year limitations period discussed in Lampf, and does not affect Lampf's direction that § 10(b) actions be further limited by a three-year statute of repose.

The PMLI Defendants suggest that Congress only meant § 27A(b) to reinstate actions that were dismissed from a district court, but still pending on appeal at the time a party files a

12 readings respects Congress' unmistakable intent to keep Lampf

from operating retroactively in cases that were dismissed as time

barred.8 We will not ignore the obvious meaning of § 27A simply

to avoid the constitutional questions that Congress has created.

4. Claim Preclusion

Finally, the TGX Defendants point to the district court's

October 1991 dismissal of Simmons's amended counterclaim in the

TGX suit. They argue that the court dismissed this amended

counterclaim with prejudice, and the amended counterclaim raised

the same claims that Simmons pursues through his January 1992

reinstatement motion under § 27A(b), so claim preclusion bars any

reinstatement of Simmons's March 1990 claims regardless of §

But the TGX Defendants have waived any claim-preclusion

argument by failing to raise it in the district court. Our

thorough search of the record reveals no mention of claim

preclusion by the court's October 1991 judgment, and we refuse to

consider it for the first time on appeal. See Russell v.

SunAmerica Sec., Inc., 962 F.2d 1169, 1172 (5th Cir. 1992)

(failure to present res judicata argument to district court

usually prevents appellate court from addressing the issue); see

also Aluminum Prod. Distrib., Inc. v. Aaacon Auto Transp., Inc.,

motion for reinstatement. 8 Cf. Georgia Ass'n of Retarded Citizens v. McDaniel, 855 F.2d 805, 809 (11th Cir. 1988) (Though Congress intended a statute to control cases "pending" before enactment of the statute, the court found no clear intent that the statute would apply to pending cases that a court had also finally dismissed.).

13 549 F.2d 1381, 1384 (10th Cir. 1977) (where a party asserted res

judicata for the first time in a new-trial motion, "the district

court was not bound by any [prior] judgment," and the appellate

court refused to consider any preclusive effect on appeal).

We come to the central question of both cases: the

constitutionality of § 27A(b).

B. WHETHER THE CONSTITUTION PROTECTS INDIVIDUALS OR THE JUDICIARY FROM

§ 27A(B)

Congress' authority to establish limitations periods for

securities-fraud claims cannot be disputed. See Musick, 1993 WL

179262 at *4-*5. Section 27A(b) is controversial exclusively for

its retroactivity.9 While the Constitution proscribes

retroactive criminal legislation, it contains no analogous civil

provision. U.S. CONST. art. I, § 9; Mahler v. Eby, 44 S. Ct.

283, 286 (1924).

The PMLI Defendants and TGX Defendants (collectively

Defendants) argue that the Supreme Court's precedent and the

structure of the Constitution establish that § 27A(b)

unconstitutionally affects individuals and the federal judiciary.

The district courts agreed with them. We do not.

9 A retroactive statute "gives to preenactment conduct a different legal effect from that which it would have had without the passage of the statute." Charles B. Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 HARV. L. REV. 692, 692 (1960) (hereinafter Constitutionality of Retroactive Legislation).

14 1. Individual Rights

The Constitution's Fifth Amendment prohibits Congress from

depriving any person of property without due process of law. The

Defendants claim that § 27A(b) contravenes the Fifth Amendment by

compromising two of their property rights as recognized by the

Supreme Court.

a. The Right to a Final, Nonappealable Judgment

Each of the defendants in these cases (collectively

Defendants) possessed final, nonappealable judgments dismissing

the plaintiffs' § 10(b) claims. Unlike § 27A(a), § 27A(b)

effectively nullifies these judgments, so the cases addressing

the constitutionality of § 27A(a) have nothing to say about

whether § 27A(b) unconstitutionally abrogates any right to a

final judgment.10 For guidance on this question, we turn to the

The Defendants rely upon McCullough v. Virginia, 19 S. Ct.

134 (1898) and its progeny to argue that § 27A(b) cannot

constitutionally take away their judgments. McCullough obtained

a judgment against Virginia in 1892, but a Virginia appellate

court reversed that judgment. Id. at 135. Between the time of

10 The only appellate courts to rule on the constitutionality of § 27A to date have upheld it as a means of changing the limitations period in pending § 10(b) cases. Cooke v. Manufactured Homes, Inc., 1993 WL 248257, at *8 (4th Cir. July 9, 1993); Cooperativa de Ahorro y Credito Aguada v. Kidder, Peabody & Co., 1993 WL 156464, at *3 & n.11 (1st Cir. May 19, 1993); Berning v. A.G. Edwards & Sons, 990 F.2d 272, 279 (7th Cir. 1993); Gray, 989 F.2d at 1574; Anixter v. Home-State Prod. Co., 977 F.2d 1533, 1547 (10th Cir. 1992); Henderson v. Scientific-Atlanta, Inc., 971 F.2d 1567, 1570 (11th Cir. 1992).

15 judgment and its reversal, Virginia's legislature repealed the

statute that authorized McCullough's suit. When the Supreme

Court agreed to hear McCullough's appeal, Virginia asked the

Court to apply the new law repealing authorization for the suit

and dismiss McCullough's appeal. Id. at 142. The Court

emphatically refused Virginia's request:

It is not within the power of a legislature to take away rights which have been once vested by a judgment. Legislation may act on subsequent proceedings, may abate actions pending, but when those actions have passed into judgment the power of the legislature to disturb the rights created thereby ceases.

Id.11

Our research indicates that the Court has never applied this

holding in McCullough to decide another case. Moreover, both

before and after McCullough, the Court has decided cases with

identical relevant facts according to a different rule.12

11 Before McCullough, the Court did not adhere to such an absolute rule. See Freeland v. Williams, 9 S. Ct. 763, 767-68 (1889) (sustaining a state law which invalidated a final judgment for damages in a trespass action); Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. 421, 431 (1855) (accepting "as a general proposition ... especially as it respects adjudication upon the private rights of parties," that legislation "cannot have the effect and operation to annul the judgment of the court already rendered, or the rights determined thereby in favor of the plaintiff") (emphasis added). 12 In United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103 (1801), Chief Justice Marshall explained:

[I]f, subsequent to the judgment, and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied.... [T]he court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful

16 Accordingly, we must carefully scrutinize McCullough's rationale

in assessing the precedential value of its broad statement

concerning rights vested by judgment.

The McCullough Court did not explicitly ground its holding

in the Constitution. In subsequent decisions, however, the Court

explained that the Fifth Amendment's Due Process Clause is the

source of constitutional protection for judgments, including the

one that belonged to McCullough. E.g., Hodges v. Snyder, 43 S.

Ct. 435, 436 (1923). Thus, we decide this case according to the

jurisprudence that the Court has developed to describe how due

process protects individuals from retroactive legislation. The

Defendants stress a "vested rights" theory exemplified by

when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.

Id. at 110. Almost two hundred years later, Schooner Peggy remains good law. See Kaiser Aluminum & Chem. Corp. v. Bonjorno, 110 S. Ct. 1570, 1581-82 (1990) (Scalia, J., concurring) (reciting history of the Court's adherence to Schooner Peggy while advocating a rule requiring a clear manifestation of legislative intent before courts will recognize retroactive legislation); see also Griffith v. Kentucky, 107 S. Ct. 708, 712 n.6 (judgment is final for purposes of the constitutional prohibition on retroactive criminal legislation only when "a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied"). But in McCullough, the Court ignored Schooner Peggy and the fact that McCullough's case was pending on appeal when Virginia's legislature changed the law, deciding instead that the law applicable to a case "freezes" at the time the trial court renders its judgment. 19 S. Ct. at 142 ("The writ of error to the court of appeals of [Virginia] brought the validity of [the trial court's] judgment into review, and the question presented to that court was whether, at the time it was rendered, it was rightful or not.") (emphasis added). The McCullough Court may have understood Schooner Peggy to apply only to Article III courts, and ignored it for this reason.

17 McCullough, but we find talk of vested rights to merely state due

process conclusions, and thus unnecessarily confusing. The Court

explains:

the words "vested right" are nowhere used in the constitution, neither in the original instrument nor in any of the amendments to it. We understand very well what is meant by a vested right to real estate, to personal property, or to incorporeal hereditaments. But when we get beyond this, although vested rights may exist, they are better described by some more exact term, as the phrase itself is not one found in the language of the constitution.

Campbell v. Holt, 6 S. Ct. 209, 213 (1885). A seminal treatise

recognizes what has happened when courts have departed from the

Constitution in search of an amorphous "vested rights" theory:

Judicial opinions are full of standards which purport to govern decision[s] concerning the legality of retroactive application of new law. On close examination most of them turn out to be little more than ways to restate the problem. Probably the most hackneyed example of such a rule is to the effect that a law cannot be retroactively applied to impair vested rights. But the statement of that proposition does nothing more than focus attention on the question concerning what circumstances qualify a right to be characterized as "vested."

NORMAN J. SINGER, 2 SUTHERLAND STATUTORY CONSTRUCTION § 41.05, at 364-65

(C. Sands 4th ed. 1986); accord Constitutionality of Retroactive

Legislation, 73 Harv. L. Rev. at 696. We waste no further time

with the "vested rights" language, and turn to due process.

When the Court rendered McCullough, it may have held the

absolutist view, indicated by the statement quoted above, that

the Due Process Clause protects all final judgments from

18 retroactive legislation. But the Court has retreated from this

view. The Court permits retroactive legislation to annul private

judgments that affect public rights, Hodges, 43 S. Ct. at 436, or

private injunctions upon changed circumstances. System

Federation No. 91, Ry. Employees' Dept., AFL-CIO v. Wright, 81 S.

Ct. 368, 371 (1961) (modifying a permanent injunction to conform

with subsequently-enacted amendments to the Railway Labor Act).

The dispositive retreats from any absolute McCullough rule,

however, come in Fleming v. Rhodes, 67 S. Ct. 1140 (1947) and

Usery v. Turner Elkhorn Mining Co., 96 S. Ct. 2882 (1976).

In Fleming, landlords obtained valid final judgments from a

Texas court entitling them to evict certain tenants upon the

lapse of wartime price regulations. Congress cured the lapse

within two months, and included a law which prohibited the

eviction of the tenants with its extension of price regulations.

67 S. Ct. at 1141 n.3. A price-control administrator asked a

federal district court to apply this law to enjoin the landlords

and state officials from executing their judgments, but the

district court held that the federal statute violated the Fifth

Amendment's Due Process Clause. Id. at 1141-42. The Supreme

Court reversed, explaining that

Federal regulation of future action based upon rights previously acquired by the person regulated is not prohibited by the Constitution. So long as the Constitution authorizes the subsequently enacted legislation, the fact that its provisions limit or interfere with previously acquired rights does not condemn it. Immunity from federal regulation is not gained through forehanded contracts. Were it otherwise the

19 paramount powers of Congress could be nullified by "prophetic discernment." The rights acquired by judgments have no different standing. The protection of housing accommodations in defense-areas through the price control acts may be accomplished by the [administrator] notwithstanding these prior judgments. The preliminary injunctions should have been granted.

Id. at 1144 (footnotes omitted and emphasis added), cited with

approval in Federal Housing Admin. v. Darlington, Inc., 79 S. Ct.

141, 146 & n.6 ("[A]ny 'vested' rights by reason of the state

judgment were acquired subject to the possibility of their

dilution through Congress' exercise of its paramount regulatory

power.").

Usery arose from Congress' efforts to provide compensation

to coal miners and their survivors. The disputed legislation

establishes an administrative procedure under which victims of

the disease known as "black lung" and their survivors may collect

benefits from coal companies, mandates certain presumptions

against the coal companies, and operates retroactively. 96 S.

Ct. at 2889-90. The companies argued that the statute

unconstitutionally deprived them of their property because it

imposed upon them "an unexpected liability for past, completed

acts that were legally proper and, at least in part, unknown to

be dangerous at the time." Id. at 2892. The Court responded:

It is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality, and that the burden is on one complaining of a due process violation to establish that the

20 legislature has acted in an arbitrary and irrational way....

To be sure, insofar as the Act requires compensation for disabilities bred during employment terminated before the date of enactment, the Act has some retrospective effect.... And it may be that the liability imposed by the Act for disabilities suffered by former employees was not anticipated at the time of actual employment. But our cases are clear that legislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations. See Fleming v. Rhodes....

Id. at 2892-93 (citations and footnotes omitted). The Court then

assessed the practical consequences of the Act's retrospective

imposition of liability and concluded that this imposition "is

justified as a rational measure to spread the costs of the

employees' disabilities to those who have profited from the

fruits of their labor...." Id. at 2893.

The Defendants would have us distinguish Fleming and Usery

on the ground that the Court in neither case permitted a

retroactive statute to upset a final, nonappealable judgment;

they maintain that the rights created by judgments are sacrosanct

above other due process rights, and that the McCullough rule

endures for judgment-based rights. This argument fails to

distinguish Fleming or Usery.

While the Fleming Court noted that the retroactive

legislation which it upheld only compromised the landlords'

ability to enforce their judgment rights as opposed to any

compromise of the rights themselves, 67 S. Ct. at 1144, the Court

has also recognized (as do we) that the removal of a remedy has

21 the same effect as the removal of a right. See Chase Sec. Corp.

v. Donaldson, 65 S. Ct. 1137, 1142 (1945) ("[I]t is troublesome

to sustain as a 'right' a claim that can find no remedy for its

invasion."); Lynch v. United States, 54 S. Ct. 840, 844 (1934)

("Contracts between individuals or corporations are impaired ...

whenever the right to enforce them is taken away or materially

lessened.").

Usury teaches that Congress can, under some circumstances,

create private civil liability for past acts. We recognize

nothing in the Usery Court's analysis that would limit Congress

from retroactively creating liability for securities fraud if it

justified this retroactive effect with reasons comparable to

those recited in Usery. See 96 S. Ct. at 2893-94. Because Usery

allows Congress to avert questions of judgment rights altogether,

there is no due process reason why Congress cannot reach the same

result by upsetting a judgment.

Moreover, FED. R. CIV. P. 60(b) itself destroys the

Defendants' position that final, nonappealable judgments confer

sacrosanct due-process rights on individuals. Rule 60(b) permits

courts to "relieve a party ... from a final judgment ... for ...

any ... reason justifying relief from the operation of the

judgment." The Court has repeatedly acknowledged that Rule 60

"provides courts with authority 'adequate to enable them to

vacate judgments whenever such action is appropriate to

accomplish justice.'" Liljeberg v. Health Servs. Acquisition

Corp., 108 S. Ct. 2194, 2204 (1988) (citation omitted). The

22 Tenth Circuit is especially likely to disturb final judgments

under Rule 60(b) upon subsequent changes in the law: "a change in

relevant case law by the United States Supreme Court warrants

relief under Fed. R. Civ. P. 60(b)(6)." Adams v. Merrill Lynch

Pierce Fenner & Smith, 888 F.2d 696, 702 (10th Cir. 1989).

Rule 60(b) has spawned an extensive jurisprudence; no doubt

remains as to its constitutionality. And we know of nothing to

indicate that an individual holds any greater constitutional

right against one branch of government than she holds against

another. This reasoning establishes that, despite McCullough,

judgments that are final and nonappealable do not create rights

that are absolutely immune from congressional manipulation.

It is not our place to state general rules as to when the

Due Process Clause permits Congress to disturb judgments. We

limit our inquiry to the facts before us. Fortunately, the Court

provides ample guidance in Donaldson. See 65 S. Ct. at 1141-43.

Donaldson sued a securities broker under Minnesota statutory

and common-law fraud theories. A state judge ruled that the

broker violated the Minnesota securities statute and that

Donaldson timely filed his claim because his absence from the

state tolled Minnesota's limitations period. Minnesota's Supreme

Court held the latter ruling erroneous, and remanded for further

proceedings. Id. at 1138. Meanwhile, Minnesota's legislature

enacted a limitations statute which permitted any securities

fraud claim to be brought within one year of the statute if the

securities were delivered more than five years before the

23 statute's enactment date. Donaldson met the five year delivery

requirement and availed himself of the new statute in Minnesota's

courts. Id. at 1139. The broker appealed to the Supreme Court,

arguing that Minnesota deprived him of due process by applying

the new limitations period to him. We quote extensively from the

Court's unanimous refutation of this argument because we find it

applicable here:

Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost. ... They represent a public policy about the privilege to litigate. Their shelter has never been regarded as what now is called a "fundamental" right or what used to be called a "natural" right of the individual. He may, of course, have the protection of the policy while it exists, but the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control.

....

.... The Fourteenth Amendment [Due Process Clause] does not make an act of state legislation void merely because it has some retrospective operation. ... Some rules of law probably could not be changed retroactively without hardship and oppression .... Assuming that statutes of limitation like other types of legislation could be so manipulated that their retroactive effects would offend the Constitution, certainly it cannot be said that lifting the bar of a statute of limitation so as to restore a remedy lost through mere lapse of time is per se an offense against the Fourteenth Amendment. Nor has the appellant pointed out

24 special hardships or oppressive effects which result from lifting the bar in this class of cases with retrospective force. This is not a case where appellant's conduct would have been different if the present rule had been known and the change foreseen. It does not say, and could hardly say, that it sold unregistered stock depending on a statute of limitation for shelter from liability. The nature of the defenses shows that no course of action was undertaken by appellant on the assumption that the old rule would be continued. When the action was commenced, it no doubt expected to be able to defend by invoking Minnesota public policy that lapse of time had closed the courts to the case, and its legitimate hopes have been disappointed. But the existence of the policy at the time the action was commenced did not, under the circumstances, give the appellant a constitutional right against change of policy before final adjudication.

Id. at 1142-43 (citations and footnotes omitted).

The Defendants understandably stress the last phrase of the

quoted passage, and observe that while Donaldson permits a

legislature to retroactively change limitations periods, it says

nothing about whether a legislature can divest a party of a final

judgment. The problem with this argument is that Donaldson

predates both Fleming and Usery, which we understand to establish

that Congress may upset final judgments under some circumstances.

To decide whether § 27A(b) can constitutionally upset final

judgments, we observe that the Court in Donaldson, Fleming, and

Usery invariably considered whether the legislature acted

rationally toward the party asserting a due process violation to

25 determine whether retroactive legislation deprived those parties

of rights without due process.13

In Fleming, the Court understood the landlords asserting due

process rights to have taken advantage of an inadvertent two-

month lapse in price-control regulation of defense-area housing

during wartime, and held that Congress could rationally exercise

its commerce authority to deny them this advantage. 67 S. Ct. at

1143-44. In Usery, the Court analyzed the effect of the

retroactive legislation on the coal companies to determine

whether the legislation "me[t] the test of due process" and

concluded that the legislation was "justified as a rational

13 Even before Usery, one commentator comprehensively surveyed the Court's decisions concerning the constitutionality of retroactive legislation, and concluded that three inquiries, none of them dispositive, inform the Court's rationality decisions: 1) the nature of the public interest served by the retroactive enactment; 2) the extent of the abrogation of the preenactment right; and 3) the nature of the right affected by a retroactive statute. Constitutionality of Retroactive Legislation, 73 HARV. L. REV. at 697, 711, 717. He considers a statute that retroactively upsets final judgments primarily under the third criteria, and explains:

the Court has indicated that it would be reluctant to permit the legislature to interfere with a right which has been "adjudicated ... in final and unreviewable determination." However, it must be remembered that this is only one of many considerations in determining the constitutionality of retroactive legislation, and in any given case, the Court may deem the interests in the retroactive application of the statute to a right which has been reduced to judgment prior to its enactment sufficient to outweigh the disadvantages of such application. Such a case was Fleming v. Rhodes ....

Id. at 718-19.

26 measure to spread the costs of the employees' disabilities." 96

S. Ct. at 2893. Likewise, as we quote above, the Donaldson Court

carefully considered the effect of the retroactive limitations

statute on the broker before holding that Minnesota's legislature

worked no injustice. 65 S. Ct. at 1143. And recently, the Court

upheld a statute that retroactively assessed a fee for use of the

Iran-United States Claims Tribunal against a due process

challenge by applying this standard: "the test of due process"

for "[t]he retroactive aspects of legislation" is met if "the

retroactive application of the legislation is itself justified by

a rational legislative purpose." United States v. Sperry Corp.,

110 S. Ct. 387, 396 (1989) (quoting Pension Benefit Guar. Corp.

v. R.A. Gray & Co., 104 S. Ct. 2709, 2718 (1984)).

Donaldson frees us from speculating as to the bounds of due-

process rationality when a legislature promulgates retroactive

laws. Like the statute at issue in Donaldson, § 27A(b) restores

a remedy that PMLI and Simmons lost through lapse of time. Like

the fraud-based cause of action at issue in Donaldson, the

Defendants' conduct would not have been different if they would

have foreseen § 27A(b). Like the effect of the retroactive

legislation at issue in Donaldson, § 27A(b) subjects the

Defendants to a lawsuit.

As a matter of practical effect on the parties, § 27A(b)

differs from the Donaldson legislation in one important respect.

The Donaldson Court characterized the broker's expectation that

the limitation law would remain as it was when suit was filed as

27 a "legitimate hope[]," yet held this expectation insufficient to

render Minnesota's retroactive limitations statute violative of

due process. Id. Section 27A(b) represents Congress'

complementary view that courts should honor the expectations of

plaintiffs and defendants as they ascertained § 10(b) limitations

law upon the filing of these suits before Lampf. Section 27A(b)

fulfills the hopes that the Donaldson Court found legitimate, and

is thus a stronger candidate for retroactivity than the statute

upheld by the Court; strong enough, we hold, to upset the

Defendants' final, nonappealable judgments.14

b. The Right to a Statute of Repose

The Defendants argue that even if Congress can legitimately

upset their judgments with § 27A(b), the statute still

contravenes due process because it creates civil liability for

past acts. Their argument rests on William Danzer & Co. v. Gulf

14 By this statement, we recognize that § 27A(b) should survive any heightened scrutiny required for retroactive legislation that upsets a judgment. We do not imply that retroactive legislation necessarily receives heightened scrutiny if it upsets a final judgment. A judgment for money is a species of property right, and we see no reason why the Constitution accords any more protection to an individual's right to her money when this right is represented by a judgment than when this right is represented by a savings passbook. See Tonya K. by Diane K. v. Board of Educ. of Chicago, 847 F.2d 1243, 1247 (7th Cir. 1988) ("Once the court has fixed property rights by judgment, the legislature has no greater power over this form of property than over any other."). The Supreme Court, this court, and others have consistently permitted legislatures to retroactively affect individuals' rights to money by applying a rationality standard. See Sperry, 110 S. Ct. at 396-97; Pension Benefit Guar. Corp., 104 S. Ct. at 2718; Usery, 96 S. Ct. at 2893; Wright v. Union Central Life Ins. Co., 58 S. Ct. 1025, 1031-34 (1938); Hoffman v. City of Warwick, 909 F.2d 608, 618-19 (1st Cir. 1990); Fust v. Arnar-Stone Lab., Inc., 736 F.2d 1098, 1100 (5th Cir. 1984); DiPippa v. United States, 687 F.2d 14, 19 (3d Cir. 1982).

28 & S.I.R. R., 45 S. Ct. 612 (1925), where the Court distinguishes

between time-bar statutes that bar the remedy of suit in court,

and those that extinguish the liability altogether. Id. at 613;

see also Donaldson, 65 S. Ct. 1141 n.8 (distinguishing Danzer

according to its remedy/liability dichotomy). If a time-bar

statute extinguishes liability, the Danzer Court held that a

legislature cannot constitutionally amend such a statute to

revive liability once extinguished. 45 S. Ct. at 613. To do so

would "retroactively ... create liability" and thus "deprive the

defendant of its property without due process of law in

contravention of the Fifth Amendment." Id.

The Defendants point to the Lampf Court's distinction

between a one-year statute of limitation and a three-year statute

of repose, and its holding that Congress effectively created this

time-bar structure in 1934. See 111 S. Ct. at 2780. They

observe that, like the statute at issue in Danzer, the three-year

repose period recognized by the Lampf Court is an absolute bar

not subject to equitable tolling. Compare id. at 2782 with

Danzer, 45 S. Ct. at 613. From this, they reason that Congress

in 1934 enacted an absolute three-year limit on liability for §

10(b) violations. Because § 27A(b) operates in these cases to

lift this three-year outside limit, the Defendants argue that the

statute "retroactively ... creates liability" in contravention of

due process according to Danzer.

As a preliminary matter, we note that the Usery Court

squarely held that Congress may retroactively create liability

29 for past acts, and thus compromises Danzer's holding that such

legislation per se contravenes due process. See Usery, 96 S. Ct.

at 2893 (legislation is not unlawful solely because "the effect

of the legislation is to impose a new duty or liability based on

past acts") (citations omitted). The Court has also questioned

the continued validity of a dichotomy between remedy and right,

at least where extinction of the remedy has the same effect as

extinction of the right. See Donaldson, 65 S. Ct. at 1142; see

also Lynch, 54 S. Ct. at 844. And the last time a party asked

the Court to apply Danzer, the Court did not even make a

determination as to whether the time-bar statute at issue

affected remedy or liability. International Union of Elec.,

Radio & Mach. Workers v. Robbins & Myers, Inc., 97 S. Ct. 441,

450-51 (1976).

But even if Danzer remains good law, it does not help the

Defendants. Danzer and its progeny are inapposite to statutes

that bar remedies, while leaving liability intact. We need look

no further than Lampf to determine whether the three-year statute

of repose asserted by the Defendants bars liability.

The Lampf Court strove for crystal clarity in stating its

holding: "[T]he governing standard for an action under § 10(b)

[is] the language of § 9(e) of the 1934 Act, 15 U.S.C. § 78i(e)."

111 S. Ct. at 2782 n.9. Section 9(e), as passed by Congress in

1934, provides:

No action shall be maintained to enforce any liability created under this section, unless brought within one year after the discovery

30 of the facts constituting the violation and within three years after such violation.

This language unequivocally bars an action to enforce a

liability, and says nothing about the continued existence of that

liability. Nowhere does the Lampf Court even imply that the

absolute three-year statute of repose extinguishes liability

under § 10(b). We hold that it does not.

This holding conflicts with the Tenth Circuit's holding in

Anixter v. Home-Stake Production Co., 939 F.2d 1420, 1434 (10th

Cir. 1991) that § 13 of the 1934 Act limits liability and not

remedy. The Lampf Court relied upon § 13 to hold that § 9(e)

governs § 10(b) limitations periods, yet mentioned nothing about

limitation of liability. 111 S. Ct. 2780 & n.7. And like §

9(e), the language of § 13 unequivocally indicates a limitation

of remedy, not of liability.15 We disagree with the Anixter

court's opposite conclusion.

The Defendants wrongly assume that a statute of repose must

go to liability rather than remedy. See City of El Paso v.

Simmons, 85 S. Ct. 577, 582 n.9 ("[T]he statute of repose

challenged here is an alteration of remedy rather than

obligation."). They are also mistaken that a time-bar statute

15 Section 13 provides:

In no event shall any such action be brought to enforce a liability created under § 77k or 77l(1) of this title more than three years after the security was bona fide offered to the public, or under § 77l(2) of this title more than three years after the sale.

15 U.S.C. § 77m.

31 limits liability merely because a legislature structures it as an

absolute bar that is not subject to equitable tolling. In Short

v. Belleville Shoe Manufacturing Co., 908 F.2d 1385 (7th Cir.

1990), the court discussed § 13 as follows:

Courts say that equitable tolling does not apply under § 13, but this is not strictly accurate. It is better to say that equitable tolling and related doctrines do not extend the period of limitations by more than the two-year grace period § 13 allows. Congress did not obliterate these valuable doctrines so much as it set bounds on the length of delay.

Id. at 1391 (citations omitted). Rather than assess whether a

statute is characterized as one of repose or limitation, or

whether it is subject to equitable tolling, the relevant inquiry

under Danzer is whether the legislature intended liability or

remedy to be extinguished by a time bar. Donaldson, 65 S. Ct.

1141 n.8. The primary evidence of this intent is, of course, the

language of the statute.16 In this case, we understand Congress

to have decided in § 9(e) that the three-year time bar goes to

remedy only.

Accordingly, the Defendants have failed to establish that §

27A(b) unconstitutionally deprives them of any right.

2. Judicial Authority

The Defendants next invite us to strike § 27A(b) as an

affront to our Article III authority even if it does not

16 The Ninth Circuit has distinguished Danzer by applying a presumption that time bar statutes "go to matters of remedy only." Starks v. S.E. Rykoff & Co., 673 F.2d 1106, 1109 (9th Cir. 1982).

32 contravene their constitutional rights. Other courts have

considered some of the exact arguments made by the Defendants,

and we draw on their wisdom before reaching the Defendants' novel

contentions.

a. Beam and Klein

The Defendants present the same Beam argument that the

district court describes in Simmons, 786 F. Supp. at 592-94, and

the Ninth Circuit describes in Gray, 989 F.2d at 1571-72. We

adopt the Ninth Circuit's analysis rejecting this argument

insofar as it explains why any constitutional rule articulated in

Beam does not limit Congress' powers under Article I. Id. at

1572; accord Cooke, 1993 WL 248257 at *8; Berning, 990 F.2d at

277-78. The Defendants also argue that § 27A(b) affects the

outcome of cases without changing the law in violation of the

rule announced in United States v. Klein, 80 U.S. 128 (1871). We

adopt the analysis of the Eleventh Circuit in Scientific-Atlanta,

971 F.2d at 1572, which explains that § 27A respects Klein by

changing the law. Accord Cooke, 1993 WL 248257 at *8; Berning,

990 F.2d at 278-79; Gray, 989 F.2d at 1568-70; Anixter, 977 F.2d

at 1544-46.

b. Pure Retroactivity

The Defendants also contend that Article I does not confer

authority upon Congress to enact purely retroactive legislation.

We view such a blanket prohibition as tantamount to a civil Ex

Post Facto Clause, something that the Court has explicitly

refused to recognize. See Galvan v. Press, 74 S. Ct. 737, 743

33 n.4 ("The Court ... has undeviatingly enforced the ... position,

first expressed in Calder v. Bull," that "the ex post facto

Clause applies only to prosecution for crime.... It would be an

unjustifiable reversal to overturn a view of the Constitution so

deeply rooted and so consistently adhered to.") (citation

omitted); cf. Cummings v. Bostwick, 481 F. Supp. 1251, 1254 & n.6

(D. N.H. 1980) (the constitutions of Colorado, Georgia, Idaho,

Missouri, New Hampshire, Ohio, Tennessee and Texas explicitly

prohibit all retroactive legislation).

To the contrary, the Court has held that a statute is not

unconstitutional merely for its retroactivity. See Usery, 96 S.

Ct. at 2893; see also Scientific-Atlanta, 971 F.2d at 1573

(rejecting argument that § 27A transgresses separation of powers

doctrine because it is purely retroactive). The Defendants do

not adequately distinguish Usery by explaining that the statute

at issue in that case had some prospective effect. The Usery

Court nowhere predicates its blessing of retroactive legislation

on an associated prospective component. Indeed, the Court has

before upheld purely retroactive legislation against a

separation-of-powers challenge. See United States v. Sioux

Nation of Indians, 100 S. Ct. 2716, 2745 (1980). The

Constitution imposes no bar on purely retroactive legislation per

se.

c. Final Judgments

Lastly, the Defendants assert that § 27A(b)

unconstitutionally usurps judicial authority by upsetting final

34 judgments.17 They say that § 27A(b) places Congress in the

position of a super-appellate court, exercising review authority

over the Supreme Court and its decisions in Lampf and Beam.

To define the constitutional separation of legislative and

judicial authority, the Court focuses upon "the practical effect

that the congressional action will have on the constitutionally

assigned role of the federal judiciary." Commodity Futures

Trading Comm'n v. Schor, 106 S. Ct. 3245, 3257 (1986). Under

this standard, we find § 27A(b) harmless.

With § 27A(b), Congress did not overrule decisions of the

Supreme Court. As we have held through Scientific-Atlanta,

Congress changed the law after final judgment in Lampf and Beam,

giving plaintiffs a new right to assert in court through a

reinstatement motion. The Defendants understandably claim a

violation of their constitutional rights by this action, but §

27A(b) takes no authority from the judiciary. Most

significantly, § 27A(b) leaves the final resolution of

securities-fraud disputes to the courts )) we will decide, indeed

are here deciding, which controversies will end in dismissal

despite § 27A(b). If we understood a statute's purpose to be the

reversal of results in particular controversies between private

individuals, we would strike the statute as violative of our

authority to decide cases. See, e.g., United States v. O'Grady,

89 U.S. 641, 648 (1875) (finding that the Treasury Secretary

17 The Ninth Circuit pretermitted this question in Gray. See 989 F.2d at 1571.

35 invaded judicial authority by offsetting a court's judgment with

claimed, but unlitigated tax liability). But § 27A(b) is

innocent on this score.

By upsetting final judgments, § 27A(b) at most denies us

some authority to say when a controversy is over. There is no

constitutional impediment to this denial if we share authority

with Congress to say when a controversy is done. In Sioux

Nation, the Court held that the Constitution does not forbid

Congress from mandating that a controversy continues when the

Court says that it is done.

The Sioux Nation brought a Fifth Amendment takings claim

against the United States because our government breached a

treaty obligation to reserve the Black Hills of South Dakota to

the Sioux. The United States Court of Claims dismissed the Sioux

Nation's claim for interest on the value of the seized property

as barred by res judicata. United States v. Sioux Nation of

Indians, 518 F.2d 1298, 1306 (Ct. Cl. 1975). The Supreme Court

denied certiorari. 96 S. Ct. 449 (1975). Three years later,

Congress directed the Court of Claims to review the claim's

merits without consideration of res judicata. See 25 U.S.C. §

70s(b); 100 S.Ct. at 2727. After the Court of Claims ruled in

favor of the Sioux Nation, the government appealed, asserting

that § 70s(b) violates the constitutional separation of

legislative and judicial authority. The Court upheld § 70s(b),

permitting Congress to say that a controversy continues after the

Court has said that it does not. 100 S. Ct. at 2735-36; see also

36 Tonya K., 847 F.2d at 1247 (citing Sioux Nation for the

proposition that "Congress may invite a court to reconsider even

when it may not dictate the outcome").

Schooner Peggy and its extensive progeny also represent

compelling evidence that the Constitution permits Congress and

the judiciary to share authority in deciding when a court is

finished deciding a particular controversy between individuals.

See 5 U.S. (1 Cranch) at 110. With the exception of

McCullough,18 the Court has repeatedly observed Chief Justice

Marshall's admonition that appellate courts must decide cases

according to the law that exists when they decide, not the law

that existed when the lower court rendered its decision.

In an extreme and stringent application of this rule, the

Court rendered 149 Madison Avenue Corp. v. Asselta, 67 S. Ct.

1726, modifying, 67 S. Ct. 1178 (1947). The 149 Madison Avenue

Court had affirmed a judgment for overtime pay due plaintiffs.

67 S. Ct. at 1184. But before the time for rehearing had run,

Congress retroactively created a defense for the defendants, who

asked the Court to reconsider its affirmance in light of the

change in law. The Court changed its judgment from an affirmance

to a remand so that the district court could consider the case in

light of the new law. 67 S. Ct. at 1726. The district court

eventually entered judgment for the defendants. Asselta v. 149

Madison Ave. Corp., 90 F. Supp. 442 (S.D.N.Y. 1950).

18 See note 12, supra.

37 Of course, the rule announced in Schooner Peggy does not

depend on whether the intervening law helps a particular party.

Courts must apply the new law regardless of whether it ends a

case that the court otherwise would have remanded for further

proceedings. Thus, we interpret Schooner Peggy to support the

constitutional proposition that Congress and the judiciary share

authority to decide when the judiciary's word on a controversy is

its last.

The Defendants have articulated no constitutional reason why

these controversies should not continue.

III. CONCLUSION

We REVERSE the orders of the district courts and reinstate

the cases. We REMAND for further proceedings consistent with

this opinion.