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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.

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