good morning please the court my name is matt lokeren i represent the appellant neil silver mr silver has appeal with the district courts march twenty sixth teen order granting pennsylvania higher education assistance agenc motion for summary judgment this order retroactively applied to the november second two thousand and fifteen bipartisan budget act amendment cited budget act which amended the telephone consumer protection act through the course of if we were to agree with you on the retroactivity question that there's no exception to the general rule against retroactivity there were some alternative grounds that were presented both to the district court and here but the other one has to do with whether there is actually a pre recorded voice or the use of an automatic telephone dialing system and there is no evidence as i see of any prerecorded voice so we're down in my thinking on this decision tree to whether there is an automatic telephone dialing system involved a with regard to that particular alternative ground your honor i do think there is evidence that a prerecorded voice was either used or capable of being used and that's the question of capable is different than you and why does that count correct the cable is different to being used to mr silver did testify that he believes he received a prepared voice from in addition that in the record at three eleven and three twelve during the deposition of mr crow b so in other words what you are suggesting is an issue for there's an issue of fact they're correct that you have produced to this point your clients saying they did use it and they had the capability of using it and therefore there's an issue of fact which somebody ought to give a thought to that's correct your honor and then in addition to the record portion that i cited which was pages three eleven and three twelve also i three thirteen of voices well the problem with the whole thing is you have some basis for the fact they could and you keep giving us more of that but the real the real fact issue is presented by your client they did and then they say they didn't and then you say you got all this stuff that suggests they might and they could have and your client says they did and so therefore it makes it a fact issue that's what your argument is right yes you are in my client's testimony is at page one forty two any of the excerpts of the record with regard to whether the dying system itself is constitutes an automated telephone dialing system the at to eighty seven in the target deemed an automated telephone dying system on a number of kit occasions which means and that instance you at least have some evidence to suggest that it is what the fine alternative ground for granting the motion for summary judgment was the issue of consent and revocation of that consent with regard to the you know i caught the original t c p a because in my opinion the mini version hasn't been enacted but revoking consent was appropriate at that time and then based upon the f c c is august twenty sixth teen report an order revocation is still proper so from the record we have multiple letters between multiple letters and e mails between eighty nine from starting eighty nine from the exit or the record going through one of the six so i want to seven from the excerpt of the record where mr silver is saying do not call me so we communicate with me through these standard means is written means so i do believe with regard to can sense that there is a tribal issue is a tribal issue or is the evidence there and we can make a legal determination i would prefer a legal determination but i didn't want to go straight there and as i didn't want to get that yeah i'd a minimum he'll come up and say travel issue on that one at a minimum there's  day and if so if we get back to the other it seems to me that what you're really saying is ok let's look at the three step inquiry there's no there's no express statement on its reach no retro there's no retroactivity there's no question the clear manifestation of congressional intent is a tough one for them to win so no retro regard to the freedom of information act was the sole consideration at that time that led to the southwest decision and here our government interests in a third or sorry our interest in acting the amendment is different and only we have the government interests that the amendment is intended to facilitate collection of student loans of the government we also have the consumer protection interests that's envisioned in the telephone consumer protection act decisions there are different government interested in at issue in the amendment and one of the retroactivity of the amendment was applied to extinguish the consumer the plaintiff's action that's why the ninth circuit found it to be an i good morning in may please the court donald bradley appearing by special designation of the attorney general of the commonwealth of pennsylvania on behalf of the appellee pennsylvania higher education systems agency which if it please the court i will refer to as fia t acronym p h a i understand the court was interested off the bat in the a t v s and recorded voice issue what i would like to spend a little bit of time on the retroactivity issue specifically the land graft test by the united states supreme court is the test we should look at but it's important to analyze what the supreme court had in front of it when it issued the land graph opinion the courts have talked about the land graft presumption against retroactivity but that's really a misnomer  land graft had two lines of authority in front of it when it issued that decision that was the actual presumption in favor of retroactivity announced by the supreme court decisions in bradley and thorpe and others and there was also a presumption against retroactivity in the supreme court cases of bowen and others and what land graph did was reconcile those competing lines of authority recognizing the tension between them and came up with its own standard and the court has recognized that the first step there is express congressional intent we don't have that here either way to use a guest that we approach this i'm just trying to make sure that  same as yours based on what's now argued that we still have a presumption against the retroactivity no your honor the bradley and floor plan of cases still get cited there's a six i understand because their side of i guess when i was reading the supreme court's decision when it applied to three step inquiry it seemed to me that they were suggesting there was still a presumption against retroactivity and that you had to have one of these three order overcome the presumption i don't think it should be treated as a presumption your honor it really is a test where you start from scratch and depending on how the three steps of the test play out you either have in permissible retroactive effect or you don't and under the second step if you you look to whether rights were impaired or you act if you come out on all three and there are still be retroactivity it can be applied retroactively yes all that you just a minute if you can't meet any one of this three steps can you still have retroactivity absolutely that's the way the test works if there's a letter for instance the first step is is there an express date there is no express statement so if that were the only test it would not be retroactive right in this case friction in that sense it's a presumption right and i applied that presumption in each one of the steps so if you don't need to stab it isn't retroactive in that sense yes i guess it could be considered a presumption i just want to make sure we were we were seeing at the same way ok and then i look at three clear congressional intent if you think there's clear congressional intent in any place in this i don't think you need to get to that step because i understand but if in fact two were out of the way if in fact you lost on two you have anything to say about three sure there is congressional  the title of the statute nor the statements of its supporters are adequate to conclude that congress specifically intended specific oh i guess where's the clear manifestation the f c c has made statements other courts have made statements they have those statements have not said congress intended as one other wired say doesn't have anything to elect congress say right but give it to me out of the statute and seemed to me that retroactivity or not it does not but there are cases that have dealt with statutes that involve similar government interests that have found congressional intent to because like i tried to because they hyped it up i don't find it in the statute i don't find it any place i can always go find what i want to find if i want to find it or i can decided and then cite some congressional idea in my mind i'm just trying to make sure i understand your argument  letter but in that case this court found that in cases of sovereign immunity the land graft presumption flat out does not apply found an exception and this court in that case did not base that on express congressional intent regarding retroactivity it based it on the government interest involved and when we're dealing with sovereign immunity those are the same kinds of interest we're dealing with here where congress intended to expedite the ability of the government to collect taxpayer money and make that as efficient as possible act that is helping the government that's enough to give the congressional intent it is and it's also you have and your argument i'm not sure i agree maybe we go to number two where you really had your argument focused and i took it off sure and to has three sub steps if if an amendment will impair the rights of a party when that person acted or increase that party's liability or impose new duties on that party then that's an impermissible retroactive effect and it won't be applied retroactively now here two and three i don't think there's any legitimate argument that the amendment here increased anybody's liability or added anybody's duties or obligations one where a party's rights impacted when they acted when this amendment was too impaired have the right party possess twenty correct there there's at least room for argument we don't believe  that an inability to sue is the impairment of rights that the land grab the court had in mind and this court agrees with that there's more than just an inability to sue the terms procedural as i understand it assuming the facts in the light most what they claim that can be brought and won't be dismissed on summary judgment which we think it should have been dismissed on summary judgment even if it's not held retroactive but as this court held in the in the southwest decision the expectation of success in is not the kind of right that the lange graft court had in mind when it is announced it's standard procedure for a case right that was a for your case and so was the biodiversity case but it's been extended beyond the foyer context we have hasbrouck case the federal privacy act the energy policy act as well out of this court in fact what you're arguing to me is the fact that this amendment extinguishes a cause of action that accrued to one and there are examples if for example the amendment had increased the length of the statute of limitations to create liability to create a cause of action where one previously had not existed there we w hear the other way that this had been permissible and then once the amendment made the call impermissible another if you flip the amendment in that case then it would have been an impermissible limitations along gate's the amount of time allotted to bring the claim why does not eliminating the claim altogether also mean the same impairs the right of a party possessed because it's the difference between creating liability and limiting liability and there are cases in fact that the appellant cites the beaver and bruce cases deal with and did not cite the finke case which came out of this court the same year dealing with the same statutory amendment and moment to nine hundred eighty three that altered the tolling provision in the two rivers case the court applied and had this manifest injustice standard which was added to the land graft analysis found that in the two rivers case because the plaintiff was would have been given two years to file but didn't there was a manifest injustice in applying the statute retroactively ective it actively but in the bank case the plaintiff had only been given three months therefore it would have been manifestly unjust to apply the statute which are actively and under that standard we don't have a manifest injustice when the cause of action is eliminated in furtherance of congressional intent not just to promote the united states interests but also to promote consumer interests because there's an interest in consumers being able to contact their government student lending agencies in order to  assistance that they need with those payments thank you can or should be a thank you actually i've nothing further unless there are any specific questions i do i am interested in your response to the argument that we just heard that when we add or when the legislation would add or increase liability then that would affect rights but when it diminishes or restricts or eliminates potential liability that doesn't affect rights with response to that i think it with this particular amendment by taking away mr silver's right to file a lawsuit that would be an impermissible retroactive fact and i cited the four ninth circuit cases earlier with that something that previously was considered improper is no longer considered improper and why isn't that the kind of judgment that back casts also by saying you know we made a mistake by saying that this was improper activity and we recognize that there are really good policy reasons for not making that activity improper why isn't that the sort of judgment that ought to have retroactive or it's different here is if you look at the august two thousand and sixteen f c c report and order there is a still a carve out for a booking consent it's in paragraph thirty eight of that order but consent is irrelevant under the you gauge with my question about right that is simply where congress has said you know we made something improper but really that was we now think that was a mistake but that activity should be ok it's not about her of timing it's a matter of  substantive determination by congress that the activity should be permitted and and i guess i have a hard time seeing wind that sort of judgment shouldn't be given retroactive because i don't think that's the end of the analysis that retroactivity doesn't even matter because under the current version of the statute this still would have been improper as that's what i read the current wire why are we having the whole conversation about retroactivity if that's the case because the basis of the  ting of the dismissal so if you look at the law that was in affects prior to the amendment you have revocation the law that will be employed implemented and i don't think it's been implemented yet because in the final paragraph of the aug twenty sixth enough c c order it says