JOHN SALCEDO, individually and on behalf of others similarly situated, Plaintiff - Appellee,
ALEX HANNA, an individual, THE LAW OFFICES OF ALEX HANNA, P.A., a Florida Professional Association, Defendants - Appellants.
from the United States District Court for the Southern
District of Florida D.C. Docket No. 0:16-cv-62480-DPG
JILL PRYOR and BRANCH, Circuit Judges, and REEVES, [*] District Judge.
BRANCH, CIRCUIT JUDGE
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.
a.m. on August 12, 2016, John Salcedo, a former client of
Florida attorney Alex Hanna and his law firm,  received a
multimedia text message from Hanna offering a ten percent
discount on his services.
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). 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).
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.
STANDARD OF REVIEW
review standing determinations de novo."
Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975
(11th Cir. 2005).
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
The Telephone Consumer Privacy Act of 1991
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).
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, 136 S.Ct. 663,
667 (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.
Article III Standing
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
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 (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 (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.
Supreme Court has explained, the "irreducible
constitutional minimum" to establish Article III
standing requires three elements. Lujan, 504 U.S. at
560. "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, 136 S.Ct. 1540, 1547 (2016)
(citing Lujan, 504 U.S. at 560-61). It is the first
element-the "foremost" of the three, id.
(quoting Steel Co. ...