dissenting:
The majority is correct in concluding that Smith v. Duff & Phelps, Inc., 891 F.2d 1567, 1569-70 (11th Cir.1990), established “that the statute of limitations for section 10(b) claims is the period that the forum state applies to the most closely analogous state claim.” Lampf, Pleva, Lipkind, Prupis & Petigrew v. Gilbertson, — U.S. -, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991), however, overruled Smith and established that § 10(b) “actions are subject to a federal one-year/three-year statute of limitations” as stated by the majority. This new statute of limitations established in Lampf is to be retroactively applied. See Lampf, — U.S. at-, 111 S.Ct. at 2781-82; James B. Beam Distilling Co. v. Georgia, — U.S.-, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991); Lufkin v. McCallum, 956 F.2d 1104 (11th Cir.1992). When the district court granted summary judgment for defendant based upon the Lampf Beam rationale as to limitations and retroactivity, it was correct in light of the then existing case law.
While plaintiffs’ ensuing appeal was pending here, Congress enacted the FDIC Improvement Act of 1991 amending the Securities Exchange Act of 1934, and obviously intended to have “effect on pending private causes of action.” The apparent legislative purpose of § 27A “was to return to the status quo as it existed prior to Lampf.” Congress directed that the law that existed immediately before Lampf should be applied to pending cases, applying its own principles of retroactivity.
Scientific Atlanta argues that Congress’ action violated its due process rights and its interests established under the Lampf rule. I concur with the majority in its analysis and rejection of the challenges based upon the Fifth Amendment.
Defendant also challenges the constitutionality of § 27A based upon the Separation of Power doctrine. A number of district courts have considered like challenges and have reached different results. All have recognized that a court should declare a congressional enactment unconstitutional only for the most compelling reasons. Nonetheless, courts have struck down congressional enactments for separation of powers violations. See e.g., Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986). Despite the careful and thoughtful reasoning of the majority in this difficult case, I am persuaded by the collective efforts of what appear to me to be a majority of district courts that have considered this issue.1 I would find the *1576congressional enactment in controversy, designed to affect pending litigation and to overrule Supreme Court decisions, to be unconstitutional. I am persuaded that Congress infringed upon judicial authority by setting out specific rules of decision in pending cases, such as the instant case, as proscribed in United States v. Klein, 80 U.S. (13 Wall.) 128, 20 L.Ed. 519 (1871).
I would affirm the decision of the district court, and accordingly I respectfully dissent.
. A partial list of district court cases that have determined § 27A to be unconstitutional follows:
Johnston v. CIGNA Corp., 789 F.Supp. 1098 (D.Colo.1992);
Bank of Denver v. Southeastern Capital Group, Inc., 789 F.Supp. 1092 (D.Colo.1992);
TGX Corp. v. Simmons, 786 F.Supp. 587 (E.D.La.1992);
Mancino v. Inti Tech. Corp., No. 89-7244-RMT, 1992 WL 114436 (C.D.Cal. Mar. 10, 1992);
In re Brichard Sec. Litig., 788 F.Supp. 1098 (N.D.Cal.1992);
Abrams & Wofsy v. Renaissance Investment Corp., Nos. l:87-cv-1931-WCO, l:87-cv-1962-WCO, 1:87-cv-2074-WCO, l:87-cv-2454-WCO (N.D.Ga. July 21, 1992);
In re: Prudential-Bache Energy Income Partnerships Sec. Litig., No. 888, 1992 WL 142575 (M.D.La. June 9, 1992);
Rosenthal v. Dean Witter Reynolds, Inc., No. 91-F-591 (D.Col. June 15, 1992);
Pacific Mutual Life Ins. Co. v. First Republic-bank Corp., No. 3:91-CV-0441-H (N.D.Tex. July 13, 1992);
*1576Dulude v. Cigna Sec., Inc., No. 90-CV-72191-DT (E.D.Mich. May 14, 1992).