                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 13 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


NEIL SILVER, on behalf of himself and            No.   16-15664
all others similarly situated,
                                                 D.C. No. 4:14-cv-00652-PJH
              Plaintiff-Appellant,

 v.                                              MEMORANDUM*

PENNSYLVANIA HIGHER
EDUCATION ASSISTANCE AGENCY,
DBA FedLoan Servicing,

              Defendant-Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Phyllis J. Hamilton, Chief Judge, Presiding

                     Argued and Submitted December 7, 2017
                            San Francisco, California

Before: GRABER and N.R. SMITH, Circuit Judges, and SIMON,** District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.
      Plaintiff Neil Silver appeals from the district court’s order granting summary

judgment to Defendant Pennsylvania Higher Education Assistance Agency

(PHEAA). We have jurisdiction under 28 U.S.C. § 1291.1

      1. Silver first argues that the district court erred in retroactively applying an

exception to the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C.

§ 227, enacted during the pendency of this case. We agree. The Supreme Court has

adopted a three part test for determining whether a statute should be given

retroactive effect. E.g., Beaver v. Tarsadia Hotels, 816 F.3d 1170, 1187-88 (9th

Cir.) (identifying and applying the three-part test articulated in Landgraf v. USI

Film Prods., 511 U.S. 244 (1994)), cert. denied, 137 S. Ct. 113 (2016).

      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.”


      1
        The parties briefly argued over Silver’s standing in their briefs, but the
alleged standing issue was conclusively resolved in favor of Silver’s standing by
this court’s recent decision in Van Platten v. Vertical Fitness Group, LLC, 847
F.3d 1037, 1043 (9th Cir. 2017) (concluding that “a violation of the TCPA is a
concrete, de facto injury”).
                                            2
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).




                                            3
      2. Reviewing the alternative grounds to affirm, we conclude that disputed

issues of material fact preclude summary judgment on each of the alternative

grounds presented.

      Accordingly, we reverse the entry of summary judgment and remand for

further proceedings consistent with this memorandum.

      REVERSED and REMANDED.




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