9th Circuit Affirms District Court’s Dismissal of TCPA Claims vs. ex-Rep. Speier

Morgan Christen. Judge Daniel Bress dissented. The FCC “reasonably concluded” the TCPA doesn’t apply to robocalls “made by federal legislators conducting official government business, including organizing tele-town halls,” it said. The U.S. District Court for Northern California therefore “properly dismissed the suit,” it said. The district court also didn’t abuse its discretion in denying Cheng leave to amend his complaint,” said the opinion. Amending the complaint amendment “would be futile” because Cheng hasn’t offered any new facts that he would add to an amended complaint to contest whether Speier’s robocalls “are subject to the TCPA’s requirements,” it said. In his dissent, Bress said it’s “undisputed” that the TCPA’s prohibitions don’t apply to federal lawmakers conducting their official course of business. But Cheng also sued Speier “in her individual capacity,” and “sovereign immunity” doesn’t bar suits “seeking to impose individual liability on government officials,” said the judge. The question, then, is whether Cheng’s suit “is properly characterized as an individual capacity suit, or one that is really against the sovereign,” he said. Case law shows Cheng’s lawsuit against Speier “is an individual capacity suit to which sovereign immunity does not apply,” he said. Cheng is alleging Speier “committed tort-like wrongdoing in the form of unwanted robocalls,” said the judge. He doesn’t seek a money judgment against the U.S. or Congress, but from Speier herself, he said. Since Speier no longer is in Congress, there’s “no risk that any injunction against Speier in her personal capacity would run against the sovereign,” he said. The district court “therefore erred” in dismissing Cheng’s TCPA claim against Speier in her individual capacity, he said. Bress favored limiting the 9th Circuit’s decision to that issue and remanding to the district court for further proceedings, “including its consideration in the first instance of any other bases for dismissal that Speier might raise,” he said: “That would include whether the TCPA extends to members of Congress in the circumstances alleged, as well as any personal immunity or other defenses that Speier would offer.”