concurring in part and dissenting in part.
The crux of the majority’s argument is that section 27A(b) violates the constitutional principle of separation of powers by asking courts to reverse final judgments. The majority essentially argues that section 27A(b) allows an impermissible reopening of adjudicated cases. Although I agree that section 27A(b) cannot be constitutionally applied to the plaintiffs in the instant case, I write separately because I do not believe that section 27A(b) violates separation of powers principles in all contexts. To the contrary, section 27A(b) is an example of Congress permissibly overriding a judicial interpretation of a statute, without violating principles of separation of powers.
The issue of finality is only relevant in this case because the -plaintiffs did not appeal the district court’s initial dismissal of their claim. If the plaintiffs had appealed that ruling, the judgment could not be considered “final” under any analysis, but instead “pending” until it had completed its way through the appellate process. In Gray v. First Winthrop Corp., 989 F.2d 1564 (9th Cir.1993), the Ninth Circuit held that section 27A(b) did not violate principles of finality for cases which had been appealed. The court stated that:
These cases are properly construed as “pending” cases for separation of powers purposes. See Griffith v. Kentucky, 479 U.S. 314, 321 n. 6, 107 S.Ct. 708, 712 n. 6, 93 L.Ed.2d 649 (1987) (judgment is “final” and case is no longer pending only after “the availability of appeal [is] exhausted, and the time for a petition for certiorari [has] elapsed or a petition for certiorari finally [has been] denied”); see also Georgia Ass’n of Retarded Citizens v. McDaniel, 855 F.2d 805, 813 (11th Cir.1988) (“When it so intends, [Congress’] ability to affect the content of a nonfinal judgment in a civil case, through retroactive legislation ceases only when a case’s journey through the courts comes to an end.”), cert. denied, 490 U.S. 1090, 109 S.Ct. 2431, 104 L.Ed.2d 988 (1989); de Rodulfa v. United States, 461 F.2d 1240, 1253 (D.C.Cir.) (“[T]he suit is pending until the appeal is disposed of, and until disposition any judgment appealed from it is still sub judice.”) (internal quotations omitted)), cert. denied, 409 U.S. 949, 93 S.Ct. 270, 34 L.Ed.2d 220 (1972).
Id. at 1571.
The Seventh Circuit reached the same conclusion in Berning v. A.G. Edward & Sons, Inc., 990 F.2d 272 (7th Cir.1993). The court reasoned that, because the case was pending on appeal at the time that section 27A was passed, there was no final judgment to be upset. The court stated that:
The principle that Congress may impose new legal rules applicable in pending cases was recognized by the Supreme Court almost two hundred years ago in United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110, 2 L.Ed. 49 (1801). Because Congress is free to make changes in the law applicable to pending civil cases, “[t]he legislature may change a statute of limitations at the last instant, extending or abrogating the remedy for an established wrong.” Tonya K. ex rel. Diane K. v. Board of Education, 847 F.2d 1243, 1247 (7th Cir.1988).
Id. at 277.
In the case at hand, Congress was unable to protect these litigants under section 27A(b), because by the time 27A(b) was enacted, the time period for filing an appeal had passed. Nevertheless, for those litigants who did appeal the district court’s initial dismissal of their claim, section 27A(b) does not disturb final judgments, and is therefore consistent with separation of powers requirements.
Courts are under a duty to impose a saving interpretation of an otherwise unconstitutional statute so long as it is “fairly possible to interpret the statute in a manner that renders it constitutionally valid.” Robertson v. Seattle Audubon Society, — U.S. —, 112 S.Ct. 1407, 118 L.Ed.2d 73 (1992); Communications Workers of Am. v. Beck, 487 U.S. 735, 762, 108 S.Ct. 2641, 2657, 101 L.Ed.2d 634 (1988). Accordingly, I would AFFIRM the judgment of the district court on the grounds that section 27A(b) cannot be constitutionally applied to the litigants in the instant case, but I would not find section 27A(b) unconstitutional as applied to litigants *1501who appealed the initial dismissal of their claims.