Given all of the activity swirling around the FCC and Capitol Hill these days, one thing seems inevitable—change is on the horizon. It still remains to be seen whether this comes in the form of new regulations, an order by the FCC, or additional “robocall” legislation, but what will the impact of this change be when it comes time for application?

If change is in the form of new legislation, the Landgraf retroactivity test could provide the answer and have an effect on pending TCPA cases.  Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994). Interestingly, in what may turn out to be the perfect storm, the Landgraf retroactivity test could be under review in the midst of these legislative developments—that is, if the Supreme Court decides to take up the issue by granting Pennsylvania Higher Education Assistance Agency’s (“PHEAA”) petition for writ of certiorari, filed on April 24, 2018. As we reported previously, in Silver v. Pa. Higher Educ. Assistance Agency, 706 Fed. Appx. 369 (9th Cir. 2017), the Ninth Circuit reversed a district court’s decision to retroactively apply an amendment to the Telephone Consumer Protection Act (“TCPA”).  See here.

To refresh your recollection from law school days: the retroactive application of new legislation is governed by the test set forth in the seminal Supreme Court case Landgraf v. USI Film Products.  In the absence of an express prescription by Congress requiring retroactive application, Landgraf requires the court to determine:

• whether the new statute would have retroactive effect, i.e., whether it 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; and
• whether congressional intent favors retroactive application.

511 U.S. at 245.

Since the Landgraf decision, application of the retroactivity test by Circuit Courts has led to inconsistent results. On the one hand, the Third and Seventh Circuit Courts have held that statutory amendments do not apply retroactively to a pending case because such application would eliminate or limit liability. See Matthew v. Kidder Peabody & Co., Inc. 161 F.3d 156 (3d Cir. 1998) (amendment to the Racketeer-Influenced and Corrupt Organizations Act (“RICO”) did not apply retroactively); Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614 (7th Cir. 2007) (amendment to the Fair Credit Reporting Act did not apply retroactively).  In contrast, the Sixth Circuit Court has retroactively applied statutory amendments to eliminate liability. Bellsouth Telecommunication, Inc. v. Southeast Telephone, Inc., 462 F.3d 650 (6th Cir. 2006) (finding newly promulgated FCC regulations that eliminated a remedy did not “impair a vested right”); Combs v. Commissioner of Social Security, 459 F.3d 640 (6th Cir. 2006) (majority of en banc court held the refusal to adjudicate plaintiff’s pending application regarding her disability pursuant to the old regulation did not have impermissible retroactive effect).

Although Circuit Court splits of the sort described above are not uncommon, inconsistency in a single Circuit’s internal application of that test is indeed unusual. And when it comes to the application of the Landgraf retroactivity test, the Ninth Circuit Court has rendered decisions that simply cannot be reconciled.

In TwoRivers v. Lewis, 174 F.3d 987 (9th Cir. 1999), the Ninth Circuit Court reversed the district court’s decision to retroactively apply an amendment that deleted a special tolling provision for prisoners under Section 1983. Likewise, in Scott v. Boos, 214 F.3d 940 (9th Cir. 2000), the Ninth Circuit refused to apply a new law passed by Congress because it would eliminate RICO liability.

But a mere two years later, in Southwest Center for Biological Diversity v. U.S. Dept. of Agriculture, 314 F.3d 1060 (9th Cir. 2002), the Ninth Circuit applied an amendment to the Freedom of Information Act (“FOIA”) retroactively to a pending case, resulting in the elimination of liability against the government curiously for its refusal to provide certain information regarding an endangered bird.  Similarly, in Biological Diversity v. U.S. Department of Agriculture, 626 F.3d 1113 (9th Cir. 2010), the Ninth Circuit held applying FOIA amendments to a pending case would have “no impermissible retroactive effect under Landgraf.” Id. at 1117.

Adding to this potpourri of cases is Silver v. Pa. Higher Educ. Assistance Agency, 706 Fed. Appx. 369 (9th Cir. 2017) discussed above.  The 2015 amendment in Silver, enacted as part of the Balanced Budget Act (“BBA”), specifically exempted telephone calls made on behalf of the federal government using an automatic telephone dialing system or a recorded voice to collect a debt.

Due to this constant flip-flopping across Circuits and within the Ninth Circuit, the PHEAA has filed a petition for writ of certiorari to the Supreme Court of the United States asking the high court to resolve the split. The question presented is:

Does the amendment to the Telephone Consumer Protection Act that insulates parties collecting federal debts “impair rights a party possessed when he acted,” if applied to dismiss a lawsuit pending when the amendment was enacted, and therefore have impermissible retroactive effect under this Court’s Landgraf standard?

If taken up by the Supremes, the resulting decision stands to impact the retroactive application of any new law or statutory amendments relating to the TCPA, or, for that matter, any other new legislation that might be coming down the pike.

We will cross our fingers that the high court grants cert for consistency’s sake.  Of course, Dorsey’s team will be standing by to report on the outcome either way.