Welch v. Cadre Capital

946 F.2d 185, 1991 WL 197100
CourtCourt of Appeals for the Second Circuit
DecidedOctober 7, 1991
DocketNo. 263, Docket 90-7419
StatusPublished
Cited by46 cases

This text of 946 F.2d 185 (Welch v. Cadre Capital) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Welch v. Cadre Capital, 946 F.2d 185, 1991 WL 197100 (2d Cir. 1991).

Opinion

JON O. NEWMAN, Circuit Judge:

On remand from the Supreme Court, we reconsider our prior ruling, Welch v. Cadre Capital, 923 F.2d 989 (2d Cir.1991) (“Welch I”), which had rejected retroactive application of the ruling in Ceres Partners v. GEL Associates, 918 F.2d 349 (2d Cir.1990), adopting a uniform federal statute of limitations for actions brought under section 10(b) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78j(b) (1988). The Supreme Court remanded Welch I for reconsideration in light of Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, — U.S. -, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991) (“Lampf”), and James B. Beam Distilling Co. v. Georgia, — U.S. -, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991) (“Jim Beam ”). Northwest Savings Bank, PaSA v. Welch, — U.S. -, 111 S.Ct. 2882, 115 L.Ed.2d 1048 (1991).

In Lampf, the Supreme Court adopted the same one year/three-year statute of limitations for section 10(b) actions that we had adopted in Ceres Partners. Significantly, the Court gave retroactive application to the new rule, applying it to the litigation in which the new rule was announced. Lampf, 111 S.Ct. at 2782-83. This retroactive application, undertaken without any discussion of the retroactivity issue, was made over a dissenting opinion that pointed out that the Court had previously declined to apply new statute of limitations rules to the litigation in which the new rule was announced. Id. at 2785, 2786-87 (O’Connor, J., with whom Kennedy, J., joins, dissenting) (citing American Trucking Associations, Inc. v. Smith, — U.S. -, 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990), Saint Francis College v. Al-Khazraji, 481 U.S. 604, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987), and Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971)).

It is arguable that Lampf applied the new limitations rule retroactively to the litigation in which the rule was announced to avoid Article III concerns about advisory opinions, without implying that the new rule applies retroactively to all other lawsuits still pending on direct review. That argument, however, is foreclosed by the decision in Jim Beam. The Court there ruled that its prior decision applying a tax ruling retroactively to the litigation in which the rule was announced, see Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984), applied to all similarly situated litigants whose cases were pending on direct review. Jim Beam, 111 S.Ct. at 2448. Indeed, the Court ruled that in the civil context it is error not to apply retroactively to all cases pending on direct review a rule of federal law previously applied retroactively in the case announcing the rule. Id. at 2446. The Court thus rejected what Justice Souter called “selective prospectivity,” id. at 2444, a technique that Justice White said the Court [187]*187had never applied in the context of civil litigation. See id. at 2448 & n. * (White, J., concurring).

The amicus curiae advances the interesting argument that the Supreme Court has indeed used selective prospectivity on one occasion and done so precisely in the context of applying a new limitations rule. In Saint Francis College v. Al-Khazraji, supra, the Court affirmed the Third Circuit’s decision declining to apply retroactively the two-year limitations period that the Third Circuit had determined in Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir.1985), was applicable to actions under 42 U.S.C. § 1981 (1988). Yet the Third Circuit had applied its limitations ruling to the parties in the Goodman case, and its decision to do so was explicitly affirmed by the Supreme Court in Goodman v. Lukens Steel Co., 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987), a case decided one month after Saint Francis College. The amicus contends that this is selective pros-pectivity, but there are reasons for believing that the Supreme Court might not regard it as such.

First, Goodman applied the new limitations rule only to limit the period of recoverable damages, whereas Saint Francis College declined to apply the two-year limitations rule to render untimely a suit brought within the previously applicable six-year limitations period. The Supreme Court may be instructing that as to section 1981 suits, the two-year limitations period applies entirely prospectively when the issue is timeliness of suit and entirely retroactively when the issue is the extent of recoverable damages. Second, the Court noted that when the Goodman suit was filed, the Third Circuit law as to the applicable limitations period was unsettled, whereas when the Saint Francis College suit was filed several years later, Third Circuit law had settled upon a six-year limitations period. See Goodman, 482 U.S. at 663, 107 S.Ct. at 2622. Retroactive application of the new two-year period was thus thought permissible for the Goodman plaintiffs, but not for the Saint Francis College plaintiff.

Of course, the plaintiffs in the pending case are more like the plaintiff in Saint Francis College than like the plaintiffs in Goodman, since they filed a suit timely under clearly settled pre-existing law, and the rejection of selective prospectivity defeats their suit entirely, rather than merely limiting the amount of damages. Nevertheless, we cannot ignore the fact that the latest pronouncement from the Supreme Court in Jim Beam declares that it is error not to apply fully retroactively a new rule that has been applied to the parties in the case in which the rule was announced, as occurred in Lampf. When the Supreme Court issues a decision like Jim Beam, when Justice White, without disagreement from any member of the Court, pointedly reports that there is no precedent for selective prospectivity in the civil context, and when the pending case is remanded for reconsideration in light of Jim Beam and Lampf, but not also in light of Saint Francis College, we are obliged to apply Lampf retroactively to all cases that were pending on direct review when Lampf was decided. Were it not for Jim Beam, we would welcome the opportunity to withhold retroactive application of the new limitations rule from all plaintiffs (other than those in the Lampf litigation) who filed timely under the pre-existing limitations period, for all of the reasons we set forth in Welch I. But, until advised to the contrary, we feel obliged to disregard the prior teaching of Saint Francis College and apply the more recent guidance of Jim Beam.

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Bluebook (online)
946 F.2d 185, 1991 WL 197100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/welch-v-cadre-capital-ca2-1991.