dissenting:
I respectfully dissent. The majority opinion forcefully argues both the “vested rights” *498and the separation of powers propositions in holding § 27A(b) unconstitutional. After careful consideration, I am persuaded that the arguments for upholding the statute have the better logic and support.
There are two principal attacks on § 27A that are advanced to us. First, the defendants-appellees argue that the statute would, by permitting the reopening of a final unap-pealed judgment, violate what they term “the constitutional vested rights doctrine,” relying heavily on McCullough v. Virginia, 172 U.S. 102,19 S.Ct. 134, 43 L.Ed. 382 (1898). Brief for Defendants-Appellees at 14, 16. Second, the defendants argue that § 27A also violates the separation of powers doctrine because it has no prospective effect. Id. at 33.1
I
The argument premised on the “vested rights” theory is mainly grounded on McCullough. That case involved state bond coupons — contracts between the State of Virginia and the bondholders. The state had passed a law making it illegal to pay taxes using bond redemption coupons in lieu of cash, and instead required bondholders to pay their taxes normally and sue for a “refund” based on the value of their bondhold-ings later. McCullough did so, sued for his refund, won, and had his judgment affirmed on appeal. Later, the Virginia legislature passed retroactive legislation repealing the statute that authorized the taxpayer’s particular form of suit. The Supreme Court held that it was “not within the power of a legislature to take away rights which have been once vested by a judgment.” McCullough, 172 U.S. at 123, 19 S.Ct. at 142.
It is important to remember, however, that in McCullough, the Court discussed at length the contract rights that were involved. Referring to an earlier decision in Hartman v. Greenhow, 102 U.S. 672, 679, 26 L.Ed. 271 (1880), the Court quoted a statement that “a contract was thus consummated between the State and the holder of the new bonds, and the holders of the coupons_” McCullough, 172 U.S. at 107, 19 S.Ct. at 136. Later, McCullough noted that while it is undoubtedly the general rule to accept a construction placed by the courts of a state on its statutes, one exception was always recognized “in reference to the matter of contracts alleged to have been impaired.” Id. at 109, 19 S.Ct. at 136. Indeed, the contract rights discussion predominates through most of the opinion. Id. at 106-123, 19 S.Ct. at 135-142. This does not destroy the force of the holding of lack of power for the legislation to take away rights “which have been once vested by a judgment,” but the pronouncement of the rule in the context of contract rights and an established money judgment inform our analysis and application of the McCullough holding.
The significance of the contract rights background is reinforced by Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434 (1934), where the Court held invalid under the Due Process Clause legislation depriving private individuals of rights under renewable term insurance issued under the War Risk Insurance Act. The Court recognized that mere withdrawal of consent to suit against the government on the policies would not imply repudiation. So long as the contractual obligation was recognized, Congress could direct the fulfillment of the contractual obligation without interposition of a court or an administrative tribunal. Id. at 582, 54 S.Ct. at 844-845. However, because the legislation involved obviously intended to abolish rights, and not remedies, it was held invalid under the Fifth Amendment prohibition against the taking of property without just compensation. Id. at 579, 585, 54 S.Ct. at 843, 846. In Pacific Mutual Life Ins. v. First RepublicBank Corp., 997 F.2d 39, 46-47 (5th Cir.1993), cert. pending (Oct. 18, 1993), Judge Reavley notes that the Due Process Clause foundation for McCullough *499has been recognized by the Supreme Court. E.g., Hodges v. Snyder, 261 U.S. 600, 602-03, 43 S.Ct. 435, 436, 67 L.Ed. 819 (1923). Thus, the McCullough pronouncement about “vested rights” should be read as one of due process protection of a judicial determination of contract rights.
The reasoning in Pacific Mutual, supra, is persuasive to me for upholding § 27A, despite McCullough and the “vested rights” argument of defendants. Pacific Mutual traces the history of McCullough and points out significant cases which do not recognize any absolute rule on the sanctity of prior unappealed judgments, notably Fleming v. Rhodes, 331 U.S. 100, 67 S.Ct. 1140, 91 L.Ed. 1368 (1947), and Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976). In Fleming, landlords who sought to evict tenants under state judgments recovered in suits for the restitution of leased property following the lapse of wartime price regulations. State court judgments for eviction were entered as sought but, after a brief hiatus, Congress enacted curative legislation prohibiting the eviction of tenants and extending the price regulations. The Supreme Court reversed a federal district court ruling that the new statute violated the Fifth Amendment Due Process Clause, stating:
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 paramount powers of Congress could be nullified by “prophetic discernment.” The rights acquired by judgments have no different standing.
Fleming, 331 U.S. at 107, 67 S.Ct. at 1144 (emphasis added) (footnotes omitted).
The majority opinion would distinguish Fleming on the reasoning that the law in question did not compel the state courts to reopen final judgments, but merely directed the courts to enjoin future eviction proceedings by the appellant. This analysis is unpersuasive. The impact on the landlords is the same as if the judgments for eviction had been formally set aside. Reliance on form over substance by the majority is unconvincing. Since the constitution authorized the subsequently enacted legislation in Fleming for its important purposes, there was no due process violation there, nor is there here.
The reasoning from Fleming and its holding were reaffirmed in FHA v. Darlington, Inc., 358 U.S. 84, 91, 79 S.Ct. 141, 146, 3 L.Ed.2d 132 (1958). The Court there stated that in Fleming it
was held that the landlord could be enjoined from evicting the tenants under the state judgment, as any “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.
Id. at 91 n. 6, 79 S.Ct. at 146 n. 6. See also Paramino Lumber Co. v. Marshall, 309 U.S. 370, 375, 377-78, 60 S.Ct. 600, 601, 602-03, 84 L.Ed. 814 (1940) (upholding constitutionality of an Act ordering Compensation Commission to review case and issue new order, despite finality of the earlier unappealed order; no due process violation occurred since Act did not direct entry of an award).
The majority opinion here relies on the forceful decision in Plaut v. Spendthrift Farm, Inc., 1 F.3d 1487 (6th Cir.1993). Nevertheless, I remain convinced that Pacific Mutual has the stronger reasoning and that § 27A should be upheld as the Fifth Circuit has done. In enacting § 27A to limit the retroactive impact of Lampf and Beam on investors claiming fraudulent wrongs, Congress exercised its “paramount regulatory power,” FHA v. Darlington, Inc., 358 U.S. at 91 n. 6, 79 S.Ct. at 146 n. 6. The Supreme Court has thus described § 27A’s remedial action:
Congress intervened by limiting the retroactive effect of our decision, and the caution in its intervention is instructive. In an approach parallel to the one it adopted for the insider trading statute, Congress did no more than direct the applicable “limitation period for any private civil action implied under section 78j(b) of this title [§ 10(b) of the 1934 Act] that was commenced on or before June 19,1991 [the *500day prior to issuance of Lampf, Pleva]." 15 U.S.C. § 78aa-1 (Supp. III).
Musick, Peeler & Garrett v. Employers Ins. of Wausau, — U.S. -, -, 113 S.Ct. 2085, 2089, 124 L.Ed.2d 194 (1993).
Congress thus protected from the severity of Lampf and Beam the large number of pending claims of securities fraud which would otherwise be barred. In doing so, no contract rights merged into a judgment were upset as in McCullough. The remedial statute instead merely provided for reopening of dismissals grounded on limitations, not on the lack of merit of the claims made under § 10(b) and Rule 10b-5. This is a proper regulatory function, in my judgment. The Supreme Court has “emphasized that the private enforcement of the Securities laws as a supplement to SEC action, was highly desirable.” Grace v. Ludwig, 484 F.2d 1262, 1267 (2d Cir.1973), cert. denied, 416 U.S. 905, 94 S.Ct. 1610, 40 L.Ed.2d 110 (1974) (citing J.I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964)); see also Wechsler v. Southeastern Properties, Inc., 506 F.2d 631, 635 (2d Cir.1974). The Supreme Court has noted that private litigants “act not only on their own behalf but also ‘as private attorneys general in vindicating .a policy that Congress considered' to be of the highest priority[]”’ and that “[t]he role of ‘private attorneys general’ is not uncommon in modem legislative programs.” Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 211, 93 S.Ct. 364, 367-68, 34 L.Ed.2d 415 (1972) (citing J.I. Case Co. v. Borak, supra; other citations omitted). Thus, the remedial measures undertaken in § 27A are freighted with' the public interest, and do not merely deal with private rights.
For these reasons and others forcefully given in Pacific Mutual by the Fifth Circuit, I would hold that the “vested rights” arguments of the defendants do not justify invalidating the statute.
II
Defendants’ remaining contention is that § 27A violates' the separation of powers doctrine, arguing, inter alia, that: (1) the statute has no prospective effect; (2) the statute is not a valid exercise of legislative authority under Article I; and (3) in Anixter, 977 F.2d at 1544, this court did not address Article I. Brief for Defendants-Appellees at 33, 35.
In Anixter, 977 F.2d at 1544-47, this court held that § 27A does not violate the separation of powers doctrine. It is true that the instant case concerns final and unappealed summary judgments granted on the ground that the claims of plaintiffs were time-barred, while in Anixter the judgments had not become final. This, however, does not deprive the forceful reasoning of Anixter of meaning here. There was extended analysis of the separation of powers issue and it is instructive. At the outset the Anixter court said clearly that it could not “avoid deciding whether the separation of powers doctrine barred Congress from enacting § 27A.” 977 F.2d at 1544. It then distinguished United States v. Klein, 80 U.S. 128, 20 L.Ed. 519 (1871), noting that § 27A does not “direct courts to make specific factual findings or mandate a result in a particular case.” Anixter, 977 F.2d at 1545. “Instead, in Section 27A, Congress prescribed a new statute of limitations for the judiciary to apply to all Section 10(b) litigation pending on June 19, 1991.” Id. We concluded that:
Section 27A does not direct certain factual findings or impose a rale of decision for § 10(b) claims. It changes the law. Axel Johnson [v. Arthur Andersen & Co.], 790 F.Supp. [476] at 476 [ (S.D.N.Y.1992) ]. “Section 27A merely turns back the legal clock to the period just prior to Lampf and then permits courts independently to adjudicate any reopened actions on the basis of the law as they determine it then existed.” Adler v. Berg Harmon Assocs., 790 F.Supp. 1235, 1243 (S.D.N.Y.1991).
Indeed, Section 27A changes the law and was intended to change the law. Before its enactment, all § 10(b) claims were governed by the one-year/three-year Lampf statute of limitations as applied retroactively by Beam. “Section 27A changed the law by limiting the one-year/three-year rule to prospective application only and by subjecting Section 10(b) claims filed prior to June 19, 1991 to the limitations period determined to be applicable by the court in which the action was filed.” Berg Harmon, 790 F.Supp. at 1243.
*501In enacting Section 27A, Congress exercised a key legislative power. Statutes of limitations traditionally reside in the legislative branch. “They have come into law not through the judicial process but through legislation. They represent a public policy about the privilege to litigate. Their shelter has never been regarded as what now is called a ‘fundamental’ right_” Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628 (1945)_ “Legislation to alter such a technical defense, and its application even to dismissed cases, goes far less to the heart of the judicial function than would a legislative attempt to reverse adjudications which had addressed the true merits of the disputes in question.” Axel Johnson, 790 F.Supp. at 483.
It is this peculiar realm of legislative prerogative which nullifies defendants’ additional contentions of denial of due process and equal protection, propped on the belief our prior dismissal gave them a vested right in a judgment that Congress cannot now annul. ...
* * * * * *
Consequently, we hold § 27A constitutional. Plaintiffs timely moved to reinstate their claims under § 27A(b). We therefore reinstate the verdict "with regard to the relief awarded for violations of § 10(b) and Rule 10b-5.
Anixter, 977 F.2d at 1545-47 (emphasis added).
Defendants argue that § 27A has no prospective effect at all and that Congress may not enact such a statute. However, such a statute was upheld in Paramino Lumber Co., 309 U.S. at 374-75, 60 S.Ct. at 601. The statute in Paramino which operated on the prior injury and award was retrospective, but was held valid against due process objections under the Fifth Amendment. Id. at 378, 60 S.Ct. at 602-03. And the Court concluded by rejecting a separation of powers challenge to this retroactive legislation: “Nor can we say that this legislation is an excursion of the Congress into the judicial function.” Id. at 381, 60 S.Ct. at 604.
What we said in Anixter answers sufficiently the notion that we did not deal with Article I powers there. We held that in “enacting Section 27, Congress exercised a key legislative power. Statutes of limitations traditionally reside in the legislative branch.” Anixter, 977 F.2d at 1546 (emphasis added). The obvious reference is to Article I powers. Moreover, the contention that the statute violates the separation of powers doctrine because it operates only retroactively is unpersuasive. I agree with Henderson v. Scientific-Atlanta, Inc., 971 F.2d 1567, 1573 (11th Cir.1992), cert. denied, — U.S. -, 114 S.Ct. 95, 126 L.Ed.2d 62 (1993), which rejected that point. “We fail to see the significance of such a distinction [between partial and total retroactivity]. The central issue is whether section 27A violates separation of powers principles by interfering with judicial decision-making. The presence of an additional prospective effect in no way lessens such interference if it exists at all” — which the court held was not the case. Id. at 1573.
I feel that United States v. Sioux Nation of Indians, 448 U.S. 371, 100 S.Ct. 2716, 65 L.Ed.2d 844 (1980), is instructive on the extent of Congressional power in this context. In Sioux Nation, there was an earlier determination by the Court of Claims that a 1942 decision operated as res judicata so that a fair dealings claim of the Sioux was barred. In 1978 Congress lifted the res judicata bar and authorized the taking of new evidence. The new Act was upheld against a separation of powers challenge. The Court held that Congress had the power to waive the res judicata bar of the prior judgment; this was a proper Article I exercise of power. Id. at 396-97, 100 S.Ct. at 2731-32. Congress did not attempt to award judgment, grant a new trial, reverse a decree of the court, nor interfere with the administration of justice. Id. at 398, 100 S.Ct. at 2732. Similarly here I feel Congress properly acted within the range of its Article I powers and did not trench upon the judiciary in merely allowing a new day in court on the claims that had been held time barred after Larnpf came down. See also Cooke v. Manufactured Homes, Inc., 998 F.2d 1256 (4th Cir.1993) (§ 27A does not violate the separation of powers doctrine); *502Berning v. R.G. Edwards & Sons, Inc., 990 F.2d 272 (7th Cir.1993) (same); Gray v. First Winthrop Corp., 989 F.2d 1564 (9th Cir.1993) (same).
In sum, I am unconvinced that the separation of powers or “vested rights” challenges to § 27A overcome the statute’s presumption of constitutionality. We should uphold it. Accordingly, I respectfully dissent.