United States Court of Appeals,

Eleventh Circuit.

No. 94-9157.

Jonathan RAVEN, Eli Shapiro, Plaintiffs-Appellees,

v.

OPPENHEIMER & CO., INC., Wendy's International, Inc., J. Michael

Bodnar, R. Wayne Lewis, Howard E. Sachs, Professional Restaurant

Services, Inc., Defendants-Appellants.

Jan. 22, 1996.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:89-cv-2046-RCF), Richard C. Freeman,

Judge.

Before EDMONDSON and BIRCH, Circuit Judges, and HENDERSON, Senior

Circuit Judge.

PER CURIAM:

The present appeal arises from an order of the United States

District Court for the Northern District of Georgia reinstating

this securities fraud action pursuant to § 27A(b) of the Securities

Exchange Act of 1934, 15 U.S.C. § 78aa-1, and Fed.R.Civ.P.

60(b)(6), after the action was dismissed as time-barred in

accordance with Lampf, Pleva, Lipkind, Prupis & Petigrow v.

Gilbertson, 501 U.S. 350, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991)

("Lampf "), and James B. Beam Distilling Co. v. Georgia, 501 U.S.

529, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991) ("Beam "). We reverse.

I. BACKGROUND

The plaintiffs, holders of securities offered by the Wendco

Northwest Limited Partnership, filed this lawsuit on May 26, 1989

in the United States District Court for the Northern District of

Illinois. The complaint alleged violations of Section 10(b) of the

Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), Rule 10b-5 of
the Securities and Exchange Commission, 17 C.F.R. § 240.10b-5, the

Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §

1961 et seq. ("RICO"), and state common law. On August 18, 1989,

the case was transferred to the United States District Court for

the Northern District of Georgia as authorized by 28 U.S.C. §

1404(a). Thereafter, on June 20, 1991, the United States Supreme

Court rendered its decisions in Lampf and Beam. In Lampf, the

Court rejected the practice of utilizing state statutes of

limitation for private causes of action arising under § 10(b) and

Rule 10b-5 and announced a uniform federal time frame requiring the

commencement of such actions within one year after the discovery of

the violation and no later than three years from the date of the

alleged violation. Lampf, 501 U.S. at 361-62, 111 S.Ct. at 2781-

82, 115 L.Ed.2d at 335-36. In Beam, the Court held that when a new

rule of federal law is implemented in the case announcing the rule,

it must be extended retroactively to all pending cases. Beam, 501

U.S. at 541-44, 111 S.Ct. at 2446-48, 115 L.Ed.2d at 492-93.

Because the limitation period required by Lampf was applied to the

litigants in that case, this court recognized, in Lufkin v.

McCallum, 956 F.2d 1104, 1108 (11th Cir.), cert. denied, 506 U.S.

917, 113 S.Ct. 326, 121 L.Ed.2d 246 (1992), that it must be

enforced with respect to similarly situated parties. See Henderson

v. Scientific-Atlanta, Inc., 971 F.2d 1567, 1569 (11th Cir.1992),

cert. denied, --- U.S. ----, 114 S.Ct. 95, 126 L.Ed.2d 62 (1993).

After Lampf and Beam were decided, the district court held

that the plaintiffs' § 10(b) and Rule 10b-5 claims were time-barred

and that the complaint failed to state a claim on the RICO cause of
action. Because no federal claims remained, the court declined to

exercise pendent or supplemental jurisdiction over the state law

counts. See 28 U.S.C. § 1367(c)(3). A judgment dismissing the

federal causes with prejudice and the state law claims without

prejudice was entered on October 16, 1991. The plaintiffs did not

appeal and, therefore, the judgment became final thirty days later.

See 28 U.S.C. § 2107(a).

On December 19, 1991, Congress amended the Securities Exchange

Act of 1934 by enacting § 27A. It provides:

Sec. 27A. (a) Effect on Pending Causes of Action.—The

limitation period for any private civil action implied under

section 10(b) of this Act that was commenced on or before June

19, 1991, shall be the limitation period provided by the laws

applicable in the jurisdiction, including principles of

retroactivity, as such laws existed on June 19, 1991.

(b) Effect on Dismissed Causes of Action.—Any private

civil action implied under section 10(b) of this Act that was

commenced on or before June 19, 1991—

(1) which was dismissed as time barred subsequent to

June 19, 1991, and

(2) which would have been timely filed under the

limitation period provided by the laws applicable in the

jurisdiction, including principles of retroactivity, as

such laws existed on June 19, 1991,

shall be reinstated on motion by the plaintiff not later than

60 days after the date of enactment of this section.

Pub.L. No. 102-242, § 476, 105 Stat. 2236, 2387 (1991) (codified at

15 U.S.C. § 78aa-1).

On February 14, 1992, the plaintiffs filed a motion to

reinstate their claims under § 10(b) and Rule 10b-5 in accordance

with § 27A(b). The defendants opposed the revival of the lawsuit

on the ground that the statute was unconstitutional. The district

court certified the constitutional question to the United States
 1

Section 2403(a) directs that, in actions attacking the

constitutionality of an Act of Congress affecting the public

interest, "the court shall certify such fact to the Attorney

General, and shall permit the United States to intervene for

presentation of evidence, if evidence is otherwise admissible in

the case, and for argument on the question of constitutionality." 

 2Rule 60(b) permits a court to relieve a party from a final

judgment for certain specified reasons such as mistake, newly

discovered evidence or fraud. Subsection (b)(6) is a catch-all

provision which empowers a court to do so for "any ... reason

justifying relief" not otherwise enumerated. 

Attorney General in accordance with 28 U.S.C. § 2403(a), 1 and

directed the parties to submit additional argument on point. In

subsequent briefing, the plaintiffs asserted that, even if § 27A(b)

was unconstitutional, the prior judgment dismissing the § 10(b) and

Rule 10b-5 claims could be set aside under the authority of §

27A(a) and Fed.R.Civ.P. 60(b)(6).2 After considering the

contentions of the parties and the views of the United States, on

September 24, 1992, the district court held that § 27A was

constitutional in its entirety and granted the plaintiffs' motion

to reinstate their claims pursuant to that statute. The court also

stated in a footnote that it found "merit in plaintiff's [sic]

request to reinstate the action under Fed.R.Civ.P. 60(b)" and

therefore "grant[ed] that motion independently." (R6-100 at 25 n.

9).

On September 1, 1994, the district court amended its order

dated September 24, 1992 to declare that it warranted interlocutory

appellate review and stayed the proceedings until further order.

This court subsequently granted permission to appeal. See 28

U.S.C. § 1292(b) (allowing appeals to be taken in civil cases from

decisions not otherwise appealable when the district court states
 3

The Court in Plaut declined to decide whether § 27A(b) also

offends the due process clause because the case could be decided

on the narrower separation of powers issue. Plaut, 514 U.S. at -

---, 115 S.Ct. at 1452, 131 L.Ed.2d at 341-42. 

in writing that the "order involves a controlling question of law

as to which there is substantial ground for difference of opinion

and that an immediate appeal from the order may materially advance

the ultimate termination of the litigation").

II. DISCUSSION

In the first round of briefs filed on appeal the parties

reiterated the arguments they had asserted in the district court.

The defendants urged us to reverse the district court's order on

the grounds that § 27A(b) contravenes the separation of powers

doctrine and the due process clause. The plaintiffs defended the

constitutionality of the statute and responded that, in any event,

the district court could revive the action relying on Fed.R.Civ.P.

60(b)(6) as its authority. Shortly thereafter, however, the

Supreme Court decided Plaut v. Spendthrift Farm, Inc., 514 U.S. ---

-, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995). In Plaut, a majority of

the Court held that § 27A(b) runs afoul of the separation of powers

doctrine and "is unconstitutional to the extent that it requires

federal courts to reopen final judgments entered before its

enactment."3

 Id. at ----, 115 S.Ct. at 1463, 131 L.Ed.2d at 356.

In a supplemental brief filed with this court the plaintiffs now

concede, as they must, that the district court was without

authority to give new life to the § 10(b) and Rule 10b-5 claims

under § 27A(b) because that subsection of the statute is

unconstitutional. They continue to maintain, however, that
 4

We note that although the district court's order declaring

the propriety of interlocutory appeal did not specifically

mention the need for an appellate decision on the Rule 60(b)(6)

question, the scope of interlocutory appellate review under 28

U.S.C. § 1292(b) "is not limited to the precise question

certified by the district court because the district court's

order, not the certified question, is brought before the court." 

Aldridge v. Lily-Tulip, Inc. Salary Retirement Plan Benefits

Comm., 40 F.3d 1202, 1207 (11th Cir.1994), cert. denied, --- U.S.

----, 116 S.Ct. 565, --- L.Ed.2d ---- (1995). We find that the

resolution of this issue will "materially advance the ultimate

termination of the litigation" and, thus, exercise our discretion

in favor of reaching this question as well. 28 U.S.C. § 1292(b). 

 5

In Henderson, the court found that Congress possessed the

constitutional authority to dictate the method for determining

the statute of limitations in a pending § 10(b) lawsuit. The

Supreme Court's decision in Plaut construing § 27A(b), which

addressed the revival of cases finally adjudicated, does not

affect the validity of the holding in Henderson. 

 6A better characterization of the effect of § 27A(a) is that

it restored, in § 10(b) cases filed on or before June 19, 1991,

the old method of calculating the statute of limitations

overruled by Lampf. 

reinstatement was permissible under Fed.R.Civ.P. 60(b)(6).4

Rule 60(b)(6) provides an "extraordinary remedy" by which a

district court may, in its discretion, relieve a party from a final

judgment in order to do justice. Ritter v. Smith, 811 F.2d 1398,

1400 (11th Cir.), cert. denied, 483 U.S. 1010, 107 S.Ct. 3242, 97

L.Ed.2d 747 (1987). The district court did not explain the basis

upon which it found merit in the plaintiffs' Rule 60(b)(6) motion.

The plaintiffs' brief filed in support of the motion, as well as

their briefs submitted on appeal, make it clear, however, that the

request was premised on an argument that § 27A(a), which was held

constitutional by this court in Henderson, 971 F.2d at 1575,5

established a new statute of limitations for all § 10(b) actions

filed on or before June 19, 1991,6 and that Rule 60(b)(6) relief
 7

"Any" may refer to "one, a, an, or some," or "one or more

without specification or identification." The Random House

College Dictionary 61 (1st ed.1980). 

may be founded upon such a change in the law. We presume,

therefore, that the district court employed this reasoning in

granting the motion. The defendants contend this was error because

§ 27A(a) has no application to the facts of this case.

We agree that the revival of this action does not fall within

the purview of § 27A(a). We begin our analysis by observing that,

in construing the effect of a statute, we must look to its language

and design as a whole. United States v. Chandler, 996 F.2d 1073,

1084 (11th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 2724,

129 L.Ed.2d 848 (1994). The text of § 27A(a) states that it

applies to "any" § 10(b) action commenced on or before June 19,

1991. The word "any" is capable of more than one meaning,

depending on the context in which it is used.7

 When viewed in the

context of § 27A as a whole, it becomes evident that the term "any"

in subsection (a) does not include lawsuits that were dismissed as

time-barred after June 19, 1991, which are governed by subsection

(b).

The heading of subsection (a), which refers to "Pending Causes

of Action," is further evidence that Congress did not intend for it

to apply to all § 10(b) actions filed on or before June 19, 1991,

as urged by the plaintiffs. Although section headings may not be

used to limit the plain meaning of the text of a statute, they may

be employed as tools of interpretation when the text is ambiguous.
 8

This is so only when the heading is part of the act as

written and passed by Congress and not added by those responsible

for codification. Castro, 837 F.2d at 442 n. 1. The heading of

subsection (a) was included in Congress's enactment of § 27A. 

See 105 Stat. at 2387. 

 9

The defendants also argue that a congressional, as opposed

to a judicial, change in the law may never be used to set aside a

final judgment under Rule 60(b)(6). Cf. Ritter, 811 F.2d at 1401

(a judicial reconstruction of what the law is may provide the

"truly extraordinary circumstances necessary" to support Rule

60(b)(6) relief). That Congress may not mandate the reopening of

a final judgment is obvious in light of Plaut. Whether the

separation of powers problem may somehow be avoided by seeking

Rule 60(b)(6) discretionary relief premised upon a new

congressional pronouncement seems doubtful. We need not decide

this thorny issue, however, given our conclusion that § 27A(a),

upon which the plaintiffs sought Rule 60(b)(6) relief, governs

only those cases still pending on December 19, 1991. 

United States v. Castro, 837 F.2d 441, 442 n. 1 (11th Cir.1988). 8

As we have stated, the word "any" is unclear unless put into

context. We find that the phrase "any private civil action" in

subsection (a), when considered in conjunction with the

subsection's heading and with subsection (b), was designed to

encompass only those § 10(b) complaints which were pending on

December 19, 1991. Without belaboring the meaning of the term

"pending," see Georgia Ass'n of Retarded Citizens v. McDaniel, 855

F.2d 805, 809 (11th Cir.1988) (recognizing that the word "pending"

is open to varying interpretations depending on the circumstances),

cert. denied, 490 U.S. 1090, 109 S.Ct. 2431, 104 L.Ed.2d 988

(1989), it cannot be said that the present action was pending on

December 19, 1991. We accordingly hold that the district court

abused its discretion by granting Rule 60(b)(6) relief founded upon

an application of § 27A(a).9

III. CONCLUSION

In keeping with the foregoing analysis, the district court's
order reinstating the plaintiffs' § 10(b) and Rule 10b-5 claims is

VACATED.