Salcedo v. Hanna

936 F.3d 1162

John SALCEDO, individually and on behalf of others similarly situated, Plaintiff - Appellee,

v.Alex HANNA, an individual, The Law Offices of Alex Hanna, P.A., a Florida Professional Association, Defendants - Appellants.

No. 17-14077

United States Court of Appeals, Eleventh Circuit.

August 28, 2019

Scott D. Owens, Sean Martin Holas, Scott D. Owens, PA, HOLLYWOOD, FL, Rebecca Smullin, Scott Lawrence Nelson, Public Citizen Litigation Group, WASHINGTON, DC, Seth Lehrman, EdwardsPottinger, LLC, FORT LAUDERDALE, FL, for Plaintiff - Appellee.

Daniel Frederick Blonsky, Susan Elizabeth Raffanello, Coffey Burlington, PL, Richard J. Ovelmen, Steven Blickensderfer, Carlton Fields, PA, MIAMI, FL, for Defendants - Appellants.

Before JILL PRYOR and BRANCH, Circuit Judges, and REEVES,^* District Judge.

BRANCH, Circuit Judge:

Is receiving a single unsolicited text message, sent in violation of a federal statute, a concrete injury in fact that establishes standing to sue in federal court? To answer that question, we have examined the statute, our precedent, and—following the Supreme Court’s guidance—history and the judgment of Congress, and we conclude that the allegations in this suit do not establish standing.

I. BACKGROUND

At 9:56 a.m. on August 12, 2016, John Salcedo, a former client of Florida attorney Alex Hanna and his law firm,¹ received a multimedia text message from Hanna offering a ten percent discount on his services.

Salcedo filed suit in the district court as the representative of a putative class of former Hanna clients who received unsolicited text messages from Hanna in the past four years, alleging violations of the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227(b)(1)(A)(iii).² He sought, among other relief, statutory damages of $500 per text message and treble damages of $1,500 per text message sent willfully or knowingly. See 47 U.S.C. § 227(b)(3).

Hanna moved to dismiss the complaint for lack of standing, arguing in the alternative that it should be dismissed as to Mr. Hanna for failure to state a claim against him and that certain parts of the complaint should be stricken. The district court disagreed, finding in relevant part that Salcedo had standing under Mohamed v. Off Lease Only, Inc. , No. 15-23352-Civ-COOKE/TORRES, 2017 WL 1080342 (S.D. Fla. Mar. 22, 2017). However, finding that its order "involves a controlling question of law as to which there is a substantial ground for difference of opinion," the court allowed Salcedo to pursue an interlocutory appeal and stayed its proceedings pending appeal. A panel of our Court granted Hanna’s petition for permission to appeal under 28 U.S.C. § 1292(b). We now consider his appeal.

II. STANDARD OF REVIEW

"We review standing determinations de novo ." Bochese v. Town of Ponce Inlet , 405 F.3d 964, 975 (11th Cir. 2005).

III. DISCUSSION

Our analysis proceeds as follows. We first introduce the TCPA, the statute under which Salcedo has filed suit. Next, we discuss the standing requirements of Article III of the Constitution, which help to define our limited power to resolve only cases or controversies. We then turn to Salcedo’s particular allegations of harm and analyze them in view of our Circuit precedent, history, and the judgment of Congress.

A. The Telephone Consumer Privacy Act of 1991

Because it found that "residential telephone subscribers consider automated or prerecorded telephone calls ... to be a nuisance and an invasion of privacy," Telephone Consumer Protection Act of 1991, S. 1462, 102d Cong., Pub. L. No. 102-243, § 2, ¶ 10 (1991), in 1991 Congress enacted the TCPA to restrict interstate telemarketing. The TCPA thus prohibits using automatic telephone dialing systems to call residential or cellular telephone lines without the consent of the called party. 47 U.S.C. § 227(b)(1)(A)(iii), (B). It also prohibits sending unsolicited advertisements via facsimile machine. Id. § 227(b)(1)(C). It authorizes the Federal Communications Commission ("FCC") to enact implementing regulations. Id. § 227(b)(2). Finally for our purposes, the TCPA creates a private right of action whereby a person or entity may seek compensatory or injunctive relief against violators. Id. § 227(b)(3).

There have been two relevant updates to the TCPA and its enforcement regime since 1991. First, in October 1992, Congress amended the TCPA to allow the FCC to exempt free-to-receive cellular calls if it so chooses. Id. § 227(b)(2)(C). The FCC has not done so. Second, the statute has been silent as to text messaging, for that medium did not exist in 1991. But under its TCPA rulemaking authority, the FCC has applied the statute’s regulations of voice calls to text messages. 30 FCC Rcd. 7961, 7964 n.3, 7978–79, 8016–22 (2015) ; 18 FCC Rcd. 14014, 14115 (2003) ; see also Campbell–Ewald Co. v. Gomez , ––– U.S. ––––, 136 S. Ct. 663, 667, 193 L.Ed.2d 571 (2016) ("A text message to a cellular telephone, it is undisputed, qualifies as a ‘call’ within the compass of § 227(b)(1)(A)(iii)."). Thus, Salcedo’s complaint facially appears to state a cause of action under the TCPA as interpreted by the FCC.

B. Article III Standing

Not every right created by Congress or defined by an executive agency is automatically enforceable in the federal courts. Our tripartite system of government recognizes that "there is no liberty if the power of judging be not separated from the legislative and executive powers." The Federalist No. 78 , at 465 (Alexander Hamilton) (Clinton Rossiter ed. 1961). To protect this separation of powers, we must assure ourselves that our exercise of jurisdiction falls within the Constitution’s grant of judicial power.

Article III vests the judicial power in the federal courts and extends that power to "Cases" and "Controversies." U.S. Const. art. III, §§ 1 –2. One tool for determining that the matters before us are truly cases or controversies, as understood by Article III, is the doctrine of standing. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "The law of Article III standing ... serves to prevent the judicial process from being used to usurp the powers of the political branches." Clapper v. Amnesty Int’l USA , 568 U.S. 398, 408, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013). Even when those political branches appear to have granted us jurisdiction by statute and rule, we are still obliged to examine whether jurisdiction exists under the Constitution.

As the Supreme Court has explained, the "irreducible constitutional minimum" to establish Article III standing requires three elements. Lujan , 504 U.S. at 560, 112 S.Ct. 2130. "The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (citing Lujan , 504 U.S. at 560–61, 112 S.Ct. 2130 ). It is the first element—the "foremost" of the three, id. (quoting Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 103, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) )—that is disputed in this appeal and to which we now turn.

To establish standing, an injury in fact must be concrete.³ Id. at 1548. "A ‘concrete’ injury must be ‘de facto ’; that is, it must actually exist," as opposed to being hypothetical or speculative. Id. A concrete injury need be only an "identifiable trifle." United States v. Students Challenging Regulatory Agency Procedures (SCRAP) , 412 U.S. 669, 689 n.14, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973) (noting that sufficiently concrete injuries have included a fraction of a vote, a $5 fine and costs, and a $1.50 poll tax). But sometimes plaintiffs allege intangible injuries that we cannot so easily identify.

When the concreteness of an alleged injury is difficult to recognize, we look to "history and the judgment of Congress" for guidance. Spokeo , 136 S. Ct. at 1549. But an act of Congress that creates a statutory right and a private right of action to sue does not automatically create standing; "Article III standing requires a concrete injury even in the context of a statutory violation." Id.⁴ "[T]he requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute." Summers v. Earth Island Inst. , 555 U.S. 488, 497, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009).

C. Eleventh Circuit Precedent

Because Salcedo bears the burden of establishing federal jurisdiction, Lujan , 504 U.S. at 561, 112 S.Ct. 2130, we look to the substance of his amended complaint’s allegations to determine if he has standing due to a concrete injury. Salcedo alleged that receiving the one text message "caused Plaintiff to waste his time answering or otherwise addressing the message. While doing so, both Plaintiff and his cellular phone were unavailable for otherwise legitimate pursuits." He further alleged that the message also "resulted in an invasion of Plaintiff’s privacy and right to enjoy the full utility of his cellular device."

These allegations are qualitatively different from those in our Circuit precedent that have been successful in establishing standing to sue over a single violation of the TCPA. In Palm Beach Golf Center–Boca, Inc. v. John G. Sarris, D.D.S., P.A. , 781 F.3d 1245, 1252 (11th Cir. 2015), we found standing for a plaintiff who alleged that receiving a junk fax in violation of the TCPA harmed him because, during the minute or so that it took to receive and process the fax message, his fax machine was unavailable for receiving legitimate business messages. Accord Florence Endocrine Clinic, PLLC v. Arriva Med., LLC , 858 F.3d 1362, 1366 (11th Cir. 2017) (considering also "the cost of printing the unsolicited fax"). To the extent we have relied on tangible costs such as the consumption of paper and ink or toner to establish injury in fact, Salcedo cannot so rely, since receiving a text message uses no paper, ink, or toner. His...