In Silver v. Pennsylvania Higher Education Assistance Agency, 2016 WL 1258629, at *2 (N.D.Cal., 2016), Judge Hamilton held that the amendment to the TCPA exempting “cal[s]… made solely to collect a debt owed to or guaranteed by the United States” (47 U.S.C. § 227(b)(1)(A)(iii)) applied retroactively, thus providing grounds in that case for summary judgment to the Defendant. In Silver v. Pennsylvania Higher Education Assistance Agency, 2017 WL 6349153, at *1 (C.A.9 (Cal.), 2017), the Court of Appeals for the Ninth Circuit reversed.
The first step of the inquiry requires an examination of the statute to determine if Congress has expressly stated when the provision is to go into effect. Id. at 1187. All parties agree there is no express statement in this statute. The second step asks whether the statute has a retroactive affect that would “impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” Landgraf, 511 U.S. at 280. The district court found that applying the TCPA amendment retroactively would not implicate this step. We disagree. This case involves a statutory personal injury claim that had accrued prior to the date Congress enacted the TCPA amendment at issue. Ninth Circuit law is clear that retroactively extinguishing a personal claim that has already accrued implicates the strong presumption against retroactivity under Landgraf. E.g., Beaver, 816 F.3d at 1188 (holding that “impair[ing p]laintiffs’ right to bring suit” where that right was “possessed and exercised prior to [an] amendment’s passage” is “enough to show the [a]mendment would have retroactive effect within the meaning of Landgraf whether or not this qualifies the rights as ‘vested’ ”). Moreover, under the third step of the analysis, we find no clear indication that Congress intended to override this strong presumption against retroactivity. The fact that the amendments were in the national interest of collecting debts owed to or secured by the government establishes the purpose for enacting the law, but it does little to show that Congress “affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits.” Id. (quoting Landgraf, 511 U.S. at 272-73).