review constrains us to consider the case that is actually before us, and, if it requires us to announce a new rule, to do so in the context of the case and apply it to the parties who brought us the case to decide. To do otherwise is to warp the role that we, as judges, play in a government of limited powers.
Id. at 2449-50.
Explicitly rejecting the approach taken by the Blackmun and Scalia pluralities, Justice White concurred in the judgment "on the narrower ground employed by Justice Souter." Id. at 2449.
Because only three Justices articulated a constitutional basis for the holding, Beam cannot be accorded the status of a "constitutional mandate." But see, e.g., TGX Corp., No. 87-5298, slip op. at 13 (Beam opinion states "constitutional mandate"); In re Brichard Secs. Litig., No. C-87-2987, slip op. at 26 (Beam is a constitutional decision). The attempts of several courts, and of the defendants here, to read constitutional underpinnings into the opinion of the Souter plurality are unpersuasive given its plain rejection of such a rationale in the face of the Blackmun/Scalia plurality opinions. The defendants also argue that the Souter plurality's opinion is based on principles rooted in Article III notwithstanding its non-constitutional language. The primary support for this argument is the Souter plurality's adoption of Griffith v. Kentucky, 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708 (1987), in which the Court proscribed selective prospectivity in the criminal context based on Article III concerns and "principles of equality." Because Justice Souter invoked only the latter rationale in adopting Griffith, his reliance on that case does not translate into reliance on Article III as the grounds of decision.
II. Section 27A(b)'s Effect on Final Judgments
Defendants also argue that § 27A(b) violates both the separation of powers and Fifth Amendment due process because it directs federal courts to reverse or suspend final judgments. Indeed, under the so-called "vested rights" doctrine, the legislature may not, consistent with Article III and the Fifth Amendment, direct the reversal or suspension of a decision of a federal court, see Hayburn's Case, 2 U.S. (2 Dall.) 409, 1 L. Ed. 436 (1792), or take away rights which have been once vested by judgment, McDaniel, 855 F.2d at 810-12 (11th Cir. 1988) ("Congress' power to create new causes of action, new legal rights, or impose previously unrecognized duties, does not permit it to disturb a right that vests as the result of a judgment."); McCullough v. Virginia, 172 U.S. 102, 123-24, 43 L. Ed. 382, 19 S. Ct. 134 (1898) ("when . . . actions have passed into judgment the power of the legislature to disturb the rights created thereby ceases"). However, absent the entry of a final judgment, the dismissal of an action as time-barred does not invest the prevailing party with any property rights, see Chase Secs. Corp. v. Donaldson, 325 U.S. 304, 310-16, 89 L. Ed. 1628, 65 S. Ct. 1137 (1945) (where defendant's "statutory immunity from suit had [not] been fully adjudged so that legislative action deprived it of a final judgment in its favor" due process not violated by restoration of remedy to plaintiff); Campbell v. Holt, 115 U.S. 620, 29 L. Ed. 483, 6 S. Ct. 209 (1885), and does not implicate separation of powers concerns, see McDaniel, 855 F.2d at 810; Axel Johnson, No. 89 Civ. 6490, slip op. at 11-14.
In light of these considerations, the defendants' challenge to § 27A(b) cannot be sustained either facially or as applied. Although § 27A(b) directs courts to reinstate cases dismissed as time barred subsequent to June 19, 1991 if they would have been timely under the law existing on that date, it does not speak specifically to cases in which final judgment has been entered and the time for appeal has expired. Cf. McDaniel, 855 F.2d at 808-10 ("constitutional difficulty" would be presented if statute expressly provided that it was to apply to cases in which final, unappealed judgments had been rendered prior to statute's enactment date; "If, as the plaintiffs claim, the HCPA was designed to reach cases such as this one, it would conflict manifestly with a longstanding rule which insulates certain adjudicated rights from the reach of the legislature.").
Neither does § 27A(b) violate these constitutional norms as applied. Here, final judgment was not entered until well after the enactment of the statute. Thus, at the time of the enactment, no rights were vested, nor was the adjudicative integrity of this court implicated. See Tonya K. v. Board of Educ., 847 F.2d 1243, 1247-48 (7th Cir. 1988) ("If the defendants wanted to have a judgment . . . on which to rely, they had to secure a dismissal with prejudice in 1984. They did not, and the Constitution does not give them as a gift what they failed to secure when they had the chance.")
In summary, § 27A violates neither separation of powers principles nor the due process clause of the Fifth Amendment. The statute effects a change in the law underlying § 10(b) claims which does not contravene a constitutionally grounded Supreme Court decision and does not upset the finality of judgments of the federal courts, either facially or as applied. Because § 27A is therefore not unconstitutional, and because Rabin's claims would have been timely under the law in effect in this jurisdiction on June 19, 1991, his motion to reinstate his § 10(b) claims is granted.
It is so ordered.
New York, N. Y.
July 10, 1992
ROBERT W. SWEET