Silver Lining Playbook: Ninth Circuit Reverses Retroactive Application of TCPA Amendment Limiting Liability for Calls Made to Collect on Government-Backed Debt
In 2015, Congress enacted an amendment to the TCPA that exempted calls made in an effort to collect upon federally-backed debt. The amendment seemed straightforward enough. By adding the word “except” to the statute, Congress clarified that the TCPA applies except where it doesn’t. And it doesn’t apply to calls regarding federally-backed debt. The end.
At least that is what Judge Phyllis J. Hamilton of the Northern District of California thought when she wrote the opinion of Silver v. Pennsylvania Higher Education Assistance Agency, 2016 WL 1258629 (N.D. Cal. Apr. 8, 2016). There, Judge Hamilton concluded, neatly enough, that she could not find the Defendant liable for calls made to collect federally-backed debt under a statute that expressly exempted such conduct from liability.
While the Plaintiff had argued that the amendment should not be applied retroactively, the Silver district court had little problem finding otherwise. The rule under the Supreme Court’s Landgraf test is that statutes are to be applied as written, unless the application of an amendment would impose liability on a person that had acted in reliance on the previous version of the statute. Judge Hamilton found—correctly—that no one had relied on the TCPA’s previous language to their detriment. So she applied the statute as written and dismissed the case.
While this all seems straightforward, the Ninth Circuit Court of Appeals had a different take on the analysis. In a one-page memorandum opinion issued this week, the Ninth Circuit reversed and remanded Judge Hamilton’s Silver opinion, reasoning that: “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…” See Silver v. Pennsylvania Higher Education Assistance Agency, 2017 U.S. App. LEXIS 25196, at *2 (9th Cir. Dec. 13, 2016).
On the latter point, the Silver appellate panel cited Beaver v. Tarsadia Hotels, 816 F.3d 1170, 1188 (9th Cir. 2016), which indeed held that deprivation of an accrued right of action cuts against “retroactive” application of a statute, at least where plaintiffs “possessed and exercised” the right of action prior to the amendment’s passage.
While one can certainly take issue with the Ninth Circuit’s expansive application of the Landgraf test to include preservation of accrued private rights of action—that’s not at all what the Supreme Court had in mind when it penned Landgraf. Beaver is the law of the Ninth Circuit and the Silver panel obviously felt its hands were tied. Notably, however, the rule of Beaver only applies where the plaintiff has brought suit before the amendment. The Silver lining: TCPA plaintiffs filing suit after 2015 should not be able to take advantage of Beaver, as they had not yet “exercised” their claims prior to the amendment’s enactment.