(dissenting):
Because I do not believe that the Connecticut prejudgment remedy for attaching real property is unconstitutional, I respectfully dissent.
Connecticut permits any person starting a lawsuit to file on the land records an attachment of the real property of the defendant. Conn.Gen.Stat. § 52-278e(a)(l). This prejudgment remedy assures the *862plaintiff a source of funds in the event the lawsuit is successful. To obtain this attachment the plaintiff must present sworn evidence sufficient to persuade a state court judge at an ex parte hearing that probable cause exists to believe that the lawsuit will be successful. Id. If an attachment is permitted, the defendant is entitled to an “expeditious” adversary hearing at which the attachment will be dissolved unless the plaintiff establishes probable cause in the context of an adversary hearing. Id. § 52-278e(c). Connecticut permits appellate review of an order denying a motion to dissolve an attachment. Id. § 52-278Z (a). To assure that a defendant becomes aware of his right to challenge an ex parte real estate attachment, Connecticut requires the attaching plaintiff to serve the defendant with notice of his right to a hearing to challenge the claim of probable cause, to request that the attachment be vacated or modified, or that a bond be substituted, or to claim exemption from attachment. Id. § 52-278e(b). Connecticut also permits a defendant to recover double damages for commencing a civil lawsuit without probable cause. Id. § 52-568(a)(l) (West Supp.1989).
The Court concludes that these protections fall short of the requirements of the Due Process Clause. The Court believes that a real estate attachment may not be issued until probable cause has been established at an adversary hearing. In addition, Judge Pratt believes that due process requires Connecticut to condition the grant of an attachment on the plaintiffs posting a bond for damages in the event the attachment is determined to be wrongful and to provide a damage remedy for wrongful attachment as part of the attachment scheme, rather than as part of the general remedy for vexatious litigation. However, since this latter point does not command the support of a majority of the panel, it is not a requirement imposed by today’s ruling.
The Due Process Clause is not a code of civil procedure. It assures that no state will “deprive” any person of “property” without “due process of law.” U.S. Const, amend. XIV. An ex parte prejudgment attachment of real estate does not deprive the owner of any possessory rights in his property. At most, it impairs the market value of the property during the brief interval between the ex parte attachment and the “expeditious” adversary hearing required by state law. If the owner has no plans to sell the property or borrow upon it during that interval, the ex parte attachment has caused him no adverse consequence. If, during that interval, he wishes to realize the full market value of his property, he may replace the attachment with a bond.1 Nevertheless, I can agree that the impaired market value, though temporary and remediable, is a sufficient “deprivation” to warrant some due process protection. I disagree, however, that due process requires more than Connecticut has provided, which includes (1) a demonstration of probable cause, (2) factual allegations, (3) evidence supported by oath, (4) a pre-at-tachment determination by a state court judge of the sufficiency of the probable cause showing, (5) a prompt post-attachment adversary hearing, (6) notice of the right to such a hearing, (7) appellate review of an adverse decision, and (8) double damages in the event suit is commenced without probable cause.
The Court finds these protections constitutionally deficient for lack of a pre-attach ment adversary hearing. Reliance is placed on a line of Supreme Court cases dealing with prejudgment remedies. See Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895 (1974); North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719 (1975). All of these case, however, are distinguishable from the pending case in a crucial respect: They involved prejudgment remedies that totally deprived the defendant of the possession, use, and enjoyment of his property. In Sniadach, the defendant lost his wages, “a specialized type of property presenting distinct problems in our economic system.” 395 U.S. at 340, 89 S.Ct. at 1822. In Fuentes, the defendants lost their personal property, which was seized and sold. In Mitchell, where an ex parte hearing was deemed sufficient, property was seized and sequestered. In Di-Chem, funds owed to the defendant were garnished, putting them *863“totally beyond use during the pendency of the litigation.” 419 U.S. at 606, 95 S.Ct. at 722. I see no basis to apply the same due process protections deemed necessary for these total deprivations of property to the relatively minor impairment of interests caused by an attachment of real estate. Though the impairment may be deemed a deprivation, it is one so slight as to require no more process than Connecticut has provided.2
The Court supports the equation between the total deprivations involved in the Supreme Court’s prejudgment remedy cases and the minor impairment involved in this case by enlisting our recent decision in United States v. Premises & Real Property at 4492 S. Livonia Rd., 889 F.2d 1258, 1263 (2d Cir.1989), where we said, “As a general rule, due process has been held to require notice and an opportunity to be heard prior to the deprivation of a property interest.” But Livonia, which I joined, involved precisely the type of total deprivation that the Supreme Court cases on prejudgment remedies had involved: The Government’s process, obtained ex parte, entitled it to seize the defendant’s home. Requiring an adversary hearing before that type of deprivation is no authority for imposing the same procedure on an impairment of market value that will last but a few days and can very likely be removed at once in favor of a bond if circumstances warrant.
The private interest affected is the first of the three factors to be assessed in determining how much process is due. See Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 902-03, 47 L.Ed.2d 18 (1976). In Sniadach and its progeny the private interest was significant. In the pending case, it is far less significant and, for all that appears in the record, is entirely theoretical. There is no indication that the landowner sought to sell his property or borrow on it during the interval between the ex parte hearing and his opportunity for a prompt adversary hearing.
The Supreme Court has informed us that not every state sanctioned impairment in the marketability of real property must be preceded by an adversary hearing. See Bartlett v. Williams, 464 U.S. 801, 104 S.Ct. 46, 78 L.Ed.2d 67 (1983) (dismissing for want of a substantial federal question an appeal challenging Connecticut’s lis pen-dens procedure, Conn.Gen.Stat. §§ 52-325, -325a, 325b, for lack of a pre-filing hearing). Though not entitled to the same deference due a decision reached after plenary consideration, Caban v. Mohammed, 441 U.S. 380, 390 n. 9, 99 S.Ct. 1760, 1767 n. 9, 60 L.Ed.2d 297 (1979), the dismissal in Bartlett is a ruling on the merits and a binding precedent, Hicks v. Miranda, 422 U.S. 332, 343-45, 95 S.Ct. 2281, 2288-90, 45 L.Ed.2d 223 (1975). The case for allowing an ex parte lis pendens procedure may be somewhat stronger than the ease for allowing ex parte prejudgment attachments, but from the standpoint of the private interest adversely affected, the attachment and the lis pendens are indistinguishable, and both are far less significant than the total deprivations that occurred in the Sniadach line of cases.
Moreover, in Di-Chem the Supreme Court identified the defects of the Georgia garnishment procedure as lack of participation by a judicial officer, lack of notice to the defendant, and lack of opportunity for an “early hearing.” 419 U.S. at 606, 95 S.Ct. at —. If the Court had shared the view of the panel majority in this case that due process requires an adversary hearing before any prejudgment remedy may issue, it could hardly have contented itself with pointing out the lack of an “early hearing.”
Judge Pratt, but not Judge Mahoney nor myself, finds the Connecticut statute additionally deficient because damages for wrongful attachment are not secured by a bond nor recoverable in the litigation in which the attachment was obtained. I agree with Judge Mahoney that Connecticut appears to allow a claim for wrongful commencement of litigation to be presented as a counterclaim in the main lawsuit. See Sonnichsen v. Streeter, 4 Conn.Cir.Ct. 659, 666-67, 239 A.2d 63, 67-69 (1967); see also Hydro Air of Conn., Inc. v. Versa Technologies, Inc., 99 F.R.D. 111 (D.Conn.1983) *864(applying Connecticut law). Even if state law required a separate lawsuit, I do not believe that the Constitution regulates state procedure to the extent of insisting that damages for wrongful attachment must be available in the underlying lawsuit rather than in a subsequent suit.
More fundamentally, however, I do not agree that a damage suit or a bond requirement is a constitutionally mandated component of a valid prejudgment remedy. The bond requirement was urged by Justice Powell, speaking only for himself in his concurrence in Di-Chem, 419 U.S. at 611, 95 S.Ct. at 725. We should be chary of concurrence jurisprudence. The Supreme Court has an obligation, especially when outlining new constitutional requirements,3 to express a ruling that commands the support of a majority of the Court. The modern Court has considered various forms of prejudgment remedies on four occasions. It has found the procedures constitutionally deficient in Sniadach, Fuentes, and Di-Chem, and valid in Mitchell. None of these decisions holds that due process requires the attaching plaintiff to post a bond and respond in damages for wrongful attachment. Due process is the procedure constitutionally required for taking certain kinds of action; it is not a guaranty of damage remedies for wrongful action, much less of security for the recovery of such damages.
I must acknowledge that the Supreme Court’s opinion in Mitchell, upholding the validity of a prejudgment sequestration remedy, contains favorable references to a damage action for wrongful issuance of a writ, 416 U.S. at 617, 94 S.Ct. at 1905, and to the plaintiffs obligation to post a bond to secure such damages, id. at 608, 94 S.Ct. at 1900. But I see no basis for translating these references into constitutional requirements. The damage remedy was mentioned only as a feature that “buttressed” the state’s basic protection of providing judicial control of the entire sequestration process, id. at 617, 94 S.Ct. at 1905, and the bond requirement seems to be mentioned only in describing the overall system, id. at 608, 94 S.Ct. at 1900. I have no doubt that such features are meritorious. I do not believe, however, that the Supreme Court regards them as constitutional requirements.
Connecticut’s procedure for prejudgment real estate attachments has been held to comport with due process requirements by a unanimous Connecticut Supreme Court, see Fermont Division, Dynamics Corp. of America, Inc. v. Smith, 178 Conn. 398, 423 A.2d 80 (1979) (Peters, J.), and by three judges of the District Court for the District of Connecticut, see Shaumyan v. O’Neill, 716 F.Supp. 65 (D.Conn.1989) (Nevas, J.); Pinsky v. Duncan, 716 F.Supp. 58 (D.Conn.1989) (Eginton, J.); Read v. Jacksen, Civ. No. B-85-85, 1988 WL 163017 (D.Conn. Feb. 18, 1988) (Zampano, J.). The opinions of now Chief Justice Peters in Fermont and of Judge Nevas in Shau-myan are particularly thoughtful and persuasive. Though in dissent, I am pleased to note my agreement with their views.
PRATT, Circuit Judge:John F. Di Giovanni and the State of Connecticut have petitioned for rehearing of our decision in this appeal filed on March 9, 1990. The petitions are granted only insofar as we amend our prior opinion to hold that, except for the present case, our declaration of the unconstitutionality of Conn.Gen. Stat. § 52-278e(a)(l) shall have prospective effect only, i.e., shall be applicable only to attachments filed after March 9, 1990. The petitions are denied in all other respects.
In its petition, the State of Connecticut suggests that our decision is contrary to McCahey v. L.P. Investors, 774 F.2d 543 (2d Cir.1985), a case not originally cited to us by any of the briefs of any party. While there is passing dictum in McCahey that might be interpreted as inconsistent with the panel majority’s opinion, the point was not extensively considered there and we do not view McCahey’s holding as conflicting with out own.
The state also suggests that it was not given sufficient opportunity to intervene under 28 U.S.C. § 2403(b). Although the district court failed to notify the state of its right to intervene, we afforded it that opportunity on appeal. The state accepted the invitation, fully briefed the constitutional issues for us, and in doing so made no claim that it wished to reopen the trial record to present additional evidence. We are satisfied that its interests have been adequately protected.
*865Finally, in order to avoid ambiguity, the following references in the slip opinion to Conn.Gen.Stat. § 52-278e will be expanded in the final opinion to read § 52-278e(a)(l).*
So ordered.
. If a request to replace the attachment with a bond were denied, it would be arguable that the statute has been unconstitutionally applied. But no such request was made or refused in this case.
. In Fuentes v. Shevin, 407 U.S. at 86, 92 S.Ct. at 1997, the Court observed, "The Fourteenth Amendment draws no bright lines around three-day, 10-day or 50-day deprivations of property. Any significant taking of property by the State is within the purview of the Due Process Clause.” Thus, the brief duration of the impairment in the market value of the property does not remove it from the category of "deprivation" enti-tied to due process protection, but surely the brevity of the impairment significantly affects the extent of process that is due. “[T]he length ... of a deprivation of use or possession would be another factor to weigh in determining the appropriate form of hearing_” North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. at 606, 94 S.Ct. at 722.
. In an earlier day, prejudgment remedies without a prior adversary hearing were routinely found to be constitutional. See McKay v. McInne, 279 U.S. 820, 49 S.Ct. 344, 73 L.Ed. 975 (1929) (per curiam); Coffin Bros. v. Bennett, 277 U.S. 29, 48 S.Ct. 422, 72 L.Ed. 768 (1928); Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837 (1921).
Editor’s Note: Changes have been incorporated into the opinion.