DOJ-OGR-00021115.pdf

Case 22-1426, Document 59, 02/28/2023, 3475902, Page68 of 113 Pursuant to Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994), courts must follow a two-step framework to assess whether an act of Congress may be interpreted to apply retroactively. See Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1994); see also Enterprise Mortg. Acceptance Co., LLC, Securities Litig. v. Enterprise Mortg. Acceptance Co., 391 F.3d 401, 405-406 (2d Cir. 2004). "At the first stage, a court must 'determine whether Congress has expressly prescribed the statute's proper reach.' If Congress has done so, the inquiry ends[.]'. Enterprise, 391 F.3d at 405-406 (quoting Landgraf, 511 U.S. at 280). If, however, "the statute is ambiguous or contains no express command, the court proceeds to the second stage of the Landgraf test and 'determine[s] whether the new statute would have retroactive effect[.]'" Id. (quoting Landgraf, 511 U.S. at 280). "If the statute, as applied, would have such an effect, it will not be applied retroactively 'absent clear congressional intent' to the contrary." Id. (quoting Landgraf, 511 U.S. at 280). To apply the 2003 amendment to § 3283 retroactively, the Government must clear both hurdles of the Landgraf analysis. In fact, it cannot clear either of them. At step one, Congress clearly evinced an intent that the 2003 amendment operate only prospectively. Alternatively, at step two, the amendment would have an impermissible retroactive effect. 53 DOJ-OGR-00021115