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NO IMMUNITY FOR GOVERNMENT ROBOCALLS: Trump-Appointed Judge Destroys Personal Immunity for Seemingly Official Acts in TCPA Suit and There Seems to Be More Here Than Meets The Eye
Monday, May 13, 2024

Holy smokes this is a massive ruling.

A federal court in Pennsylvania just held individual legislators can be personally liable under the TCPA for calls they make in connection with their official government functions– for instance drawing attention to an annual event where they could learn about services from non profits and other government service providers.

The result here is stunning–and could have shades of impact for “official” conduct by lawmakers and executive branch officials coast to coast. Then again, this could just be a simple case of bad lawyering and the suit may end up having very limited impact. Stay with me.

But let’s break this down, because there are a lot of interesting pieces here.

First the ruling in Perrong v. Mathew Bradford, 2:23-cv-00510-JDW (Doc. 54)( E.D. Pa. May 13, 2024) was brought to you by repeat-litigator-turned-attorney Andrew Perrong.

Perrong was recently thrashed at the Third Circuit Court of Appeals in a suit in which he tried to expand the TCPA’s autodialer definition, and he seemed to be barking up the wrong tree in his suit against Bradford as well. The Court had already dismissed several counts of Perrong’s claim against Bradford–including the autodialer claim–but the claim related to prerecorded calls remained.

At issue is this– can a sitting lawmaker be sued individually when his or her office sends prerecorded robocalls as part of official government communications to constituents?

The communications are paid for by the political parties–perhaps the problem–but are approved by the House House Communications Office, who reviews the request with House Legal and Ethics to make sure that the underlying event has “a clear legislative purpose and public benefit.”

As the opinion explains it:

Once the event is vetted, a staffer in the House Communications Office drafts a script describing the event, provides it to the legislator’s office, and coordinates with the legislator’s office as to the specifics of the call. The legislator records the audio for the call and uploads it to a website. The House Communications Office provides the audio to Cleo to make the actual calls.

Perrong sued arguing that Bradford was responsible for the calls. Bradford–as well as the Democratic and Republican caucuses who also got involved in the suit and submitted briefs in support of Bradford– argued that because Bradford’s office complied with the House rule permitting the messages that they must be official communications and that Bradford is, therefore, protected from liability by sovereign immunity.

The Court disagreed.

In a somewhat shocking determination the Court found that because Bradford was sued for damages he was the real party in interest and not the Commonwealth of Pennsylvania. So sovereign immunity does not apply. In reaching that determination the Court expanded legal doctrine holding individual government actors are NOT always protected for their official acts:

 “[i]t does not follow that every time a public official acts under color of state law, the suit must of necessity be one against the official in his or her official capacity…. The fact that Rep. Bradford may have been acting within the scope of his role as a state legislator when he made the calls does not make this an official capacity suit.. any adverse judgment against Rep. Bradford would not bind the Commonwealth.” 

Get it?

Because Perrong sued Bradford personally and not the government the suit is not defeated by sovereign immunity.

If that feels outlandishly oversimplified its because it is.

Plainly government officials acting on behalf of the government are not always subject to individual suit merely because they are sued individually–but that seems to be the implication of the ruling. (And ironically–but perhaps intentionally—such a legal doctrine would absolutely destroy Trump’s recent efforts to expand his own immunity for official acts elsewhere… and I wonder if that’s what’s really lurking here.)

After deriving the “individual sued not government sued so suit goes on” approach, the Court analyzed whether any form of qualified immunity might, nonetheless, prevent the suit. First the Court determines qualified immunity is a defense available under the TCPA since such a defense is presumptively available in any federal suit unless a carve out applies in the statute–and none exists in the TCPA.

However the court easily determined no qualified immunity existed for Bradford because the TCPA provision he allegedly violated is clear– thou shalt not use a prerecorded voice call to contact a cell phone.

Of course, the issue is not at all clear because the FCC has clearly found communications by the government are not subject to the TCPA. And since the messages at issue were seemingly government communications Bradford could not possibly be liable for them. Hence the clarity of the application of the law to Bradford was far from established.

It doesn’t look like that argument was made, or at least it wasn’t addressed by the Court. Instead the analysis focused on whether the TCPA’s statutory principles were clear enough, and the court found that they were.

In the end the Court concluded Bradford can be held individually liable for the calls his office made and the TCPAWorld is rocked anew.

As massive a ruling as this is, there are two rather big holes in the analysis that may unravel it on appeal or in future cases:

  1. As just mentioned, qualified immunity plainly exists here because the application of the TCPA to seemingly governmental messages such as those at issue in Perrong is uncertain to say the least. This is true because the FCC has specifically held such messages are NOT subject to the TCPA; and
  2. Bradford’s defense team seems to have missed a massive issue– who made the calls to begin with? They appear to have conceded he made the calls for purposes of the MSJ (“There doesn’t seem to be a dispute, at least for purposes of this motion, that Rep. Bradford caused the House Communications Office to make the calls at issue in this case.”) That feels like a big miss. I highly doubt Bradford personally instructed anyone to make the calls. And, zooming out, I think the argument can be safely made that the Commonwealth of Pennsylvania made the calls, not the individual that sent the proposal to the House Communications Office. I think either of those arguments could have landed and resulted in a win here. But neither was made.

So at bottom, Perrong may be read as broadly as to hold a public official is always liable for official calls made by their office. Or, as narrowly as, a public official is only liable for official calls made by their office when their lawyers don’t properly assert the calls were actually made by staffers and/or the government they are serving.

So it remains to be seen whether this Perrong case is as Earth-shattering is it initially appears or just another reminder that bad-lawyering makes bad results (again, not saying there was bad lawyering here– not clear to me and I didn’t go back and read all the briefs to find out. I am focused solely on the narrow issues (too narrow in my view) addressed in the ruling itself.)

We’ll keep a VERY close eye on this.

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