FILED

NOT FOR PUBLICATION

JUL 12 2023

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CLYDE CHENG, individually and on No. 22-16170 behalf of all others similarly situated, D.C. No. 3:22-cv-00083-SI Plaintiff-Appellant,

v. MEMORANDUM*

JACKIE SPEIER, Congresswoman, in her official and individual capacities,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Susan Illston, District Judge, Presiding

Argued and Submitted May 11, 2023 San Francisco, California

Before: S.R. THOMAS, CHRISTEN, and BRESS, Circuit Judges. Dissent by Judge BRESS.

Clyde Cheng appeals the district court’s dismissal of his putative class action

against Congresswoman Jackie Speier seeking monetary damages and injunctive

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. relief under the Telephone Consumer Protection Act (TCPA) for repeated

unsolicited telephone calls promoting virtual town hall events. We have

jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a dismissal on the

basis of sovereign immunity, Crowe v. Or. State Bar, 989 F.3d 714, 724 (9th Cir.

2021), and may affirm the district court’s judgment on any ground supported by

the record, Sec. Life Ins. Co. of Am. v. Meyling, 146 F.3d 1184, 1190 (9th Cir.

1998). We review for abuse of discretion a denial of leave to amend. Brown v.

Stored Value Cards, Inc., 953 F.3d 567, 573 (9th Cir. 2020). We affirm. Because

the parties are familiar with the factual and procedural history of the case, we need

not recount it here.

I

The TCPA does not apply to robocalls made by federal legislators

conducting official government business, including organizing tele-town halls.

The TCPA applies in relevant part to “any person within the United States.”

47 U.S.C. § 227(b). The statute defines “person” to include “an individual,

partnership, association, joint-stock company, trust, or corporation.” Id. § 153(39).

There is a “longstanding interpretive presumption that ‘person’ does not include

the sovereign.” Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 780

(2000). And here, there is no “affirmative showing of statutory intent [in the

2 TCPA] to the contrary.” Id. at 781. Indeed, the federal government has not

waived sovereign immunity under the TCPA, Campbell-Ewald Co. v. Gomez, 577

U.S. 153, 166 (2016), and the statute’s “legislative history lacks any indication that

Congress sought to impede [] important government communications, as opposed

to telemarketing and other calls by private entities,” In the Matter of Rules &

Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 31 F.C.C. Rcd. 7394,

7401 (2016) (“Broadnet I”), reversed in part on other grounds, 35 F.C.C. Rcd.

15052 (2020) (“Broadnet II”).

Moreover, the Federal Communications Commission has reasonably

concluded that “the TCPA does not apply to calls made by or on behalf of the

federal government in the conduct of official government business.” Id. at 7394;

see also Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,

843–44 (1984) (instructing that, when Congress has not spoken to an issue and the

statutory term at issue is ambiguous, courts should defer to “a reasonable

interpretation made by the administrator of an agency”). Specifically, “robocalls to

organize tele-town halls, when made by federal legislators or agents acting under

authority validly conferred by the federal government, are not subject to the

TCPA’s robocall consent requirement, as long as the robocalls are conducted in the

legislators’ official capacity and not, for example, as part of a campaign for re-

3 election.” Broadnet I, 31 F.C.C. Rcd. at 7398–99. Here, the district court correctly

determined that “constituent communications and town halls are part of

Congresswoman Speier’s job duties” and the calls were not “made for a private

purpose.” As a result, the TCPA does not apply to Congresswoman Speier’s

robocalls, and the district court properly dismissed the suit.

II

The district court did not abuse its discretion in denying leave to amend the

complaint. “A district court acts within its discretion to deny leave to amend when

amendment would be futile.” Parents for Priv. v. Barr, 949 F.3d 1210, 1221 (9th

Cir. 2020) (citation omitted). Here, amendment would be futile because Cheng has

not offered any new facts that he would add to an amended complaint in order to

contest whether Congresswoman Speier’s robocalls are subject to the TCPA’s

requirements.

AFFIRMED.

4

FILED

JUL 12 2023

Cheng v. Speier, No. 22-16170

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

BRESS, J., dissenting:

This putative class action alleges that while in Congress, former

Congresswoman Jackie Speier violated the Telephone Consumer Protection Act

(TCPA). The district court concluded that sovereign immunity bars the plaintiff’s

claims. The majority affirms on the alternative ground that the TCPA does not

apply to robocalls made by federal legislators conducting official government

business, such as when they communicate with constituents about virtual

townhalls.

In my view, we first need to decide the sovereign immunity question. We

have held that sovereign immunity is a “threshold jurisdictional issue[].” Daniel v.

Nat’l Park Serv., 891 F.3d 762, 765–66 (9th Cir. 2018). It is “quasi-

jurisdictional,” in the sense that it “may be forfeited where the sovereign fails to

assert it.” Acres Bonusing, Inc. v. Marston, 17 F.4th 901, 907 (9th Cir. 2021)

(quoting Pistor v. Garcia, 791 F.3d 1104, 1110–11 (9th Cir. 2015)). But when a

defendant timely and properly invokes sovereign immunity, “we lack subject

matter jurisdiction.” Id. at 908 (citing cases); see also Donovan v. Vance, 70 F.4th

1167, 2023 WL 3961129, at *3 (9th Cir. 2023). Thus, we must “at the outset”

resolve the sovereign immunity question. Acres Bonusing, 17 F.4th at 908.

1 The plaintiff has now abandoned any claim against Congresswoman Speier

in her official capacity, to which sovereign immunity would have applied. See

Lewis v. Clarke, 581 U.S. 155, 162–63 (2017); see also Campbell-Ewald Co. v.

Gomez, 577 U.S. 153, 166 (2016) (“The United States and its agencies, it is

undisputed, are not subject to the TCPA’s prohibitions because no statute lifts their

immunity.”) But the plaintiff has also sued Congresswoman Speier in her

individual capacity. This analysis is different.

Sovereign immunity does not bar suits seeking to impose individual liability

on government officials. Lewis, 581 U.S. at 162–63; Magassa v. Mayorkas, 52

F.4th 1156, 1162 (9th Cir. 2022); Acres Bonusing, 17 F.4th at 908. “‘Officers sued

in their personal capacity come to court as individuals,’ and the real party in

interest is the individual, not the sovereign.” Lewis, 581 U.S. at 162–63 (quoting

Hafer v. Melo, 502 U.S. 21, 27 (1991) (brackets omitted)). The question, then, is

whether the plaintiff’s suit is properly characterized as an individual capacity suit,

or one that is really against the sovereign.

In deciding whether the sovereign is the real party in interest, “[t]he critical

question is ‘whether the remedy sought is truly against the sovereign.’” Acres

Bonusing, 17 F.4th at 908 (quoting Lewis, 581 U.S. at 162)). Importantly, this

does not mean that sovereign immunity applies whenever government officials

“are sued for actions taken in the course of their official duties.” Id. at 910

2 (quoting Pistor v. Garcia, 791 F.3d at 1112). Again, the “[t]he critical inquiry is

who may be legally bound by the court’s adverse judgment.” Id. at 909 (quoting

Lewis, 581 U.S. at 165).

By these standards, the plaintiff’s lawsuit against former Congresswoman

Speier is an individual capacity suit to which sovereign immunity does not apply.

The plaintiff is alleging that Congresswoman Speier committed tort-like

wrongdoing in the form of unwanted robocalls. The plaintiff does not seek a

money judgment against the United States or Congress, but from Speier herself.

And since Speier is no longer a Member of Congress, there is no risk that any

injunction against Speier in her personal capacity would run against the sovereign.

Indeed, the plaintiff concedes that his request for injunctive relief is now moot due

to Congresswoman Speier’s retirement from Congress. Even if monetary liability

against Speier might influence how Congress or its Members choose to do

constituent outreach, what matters for sovereign immunity purposes is that any

“judgment will not operate” against the government. Lewis, 581 U.S. at 163. The

district court therefore erred in dismissing the plaintiff’s TCPA claim against

Speier in her individual capacity.

I would limit our decision to this issue and remand to the district court for

further proceedings, including its consideration in the first instance of any other

bases for dismissal that Speier might raise. That would include whether the TCPA

3 extends to members of Congress in the circumstances alleged, as well as any

personal immunity or other defenses that Speier would offer.

4