Gorss Motels, Inc. v. Safemark Systems, LP

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 18-12511, 18-15232
________________________
D.C. Docket No. 6:16-cv-01638-GAP-DCI
GORSS MOTELS, INC.,
a Connecticut corporation, individually and
as the representative of a class of similarly situated persons,
E&G, INC., a West Virginia corporation, individually and
as the representatives of a class of similarly situated persons,
Plaintiffs - Appellants,
versus
SAFEMARK SYSTEMS, LP,
Defendant - Appellee.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(July 26, 2019)
Before WILLIAM PRYOR, NEWSOM, and BRANCH, Circuit Judges.
WILLIAM PRYOR, Circuit Judge:
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This consolidated appeal requires us to decide whether, under the Telephone
Consumer Protection Act, 47 U.S.C. § 227, a fax recipient provided prior express
permission to receive faxes from a sender and, if so, whether the faxes needed to
contain opt-out notices under an agency regulation. Gorss Motels, Inc., and E&G,
Inc., operate hotels as franchisees of Wyndham Hotel Group. In their franchise
agreements, the hotels agreed that Wyndham affiliates could offer assistance with
purchasing items for their hotels and provided their fax numbers. Safemark
Systems, a Wyndham affiliate that provides safes to franchisees, sent two faxes to
franchisees, including Gorss and E&G. The hotels filed a complaint against
Safemark on behalf of a putative class alleging that the faxes violated the Act,
which makes it unlawful to send certain unsolicited fax advertisements. The
district court denied class certification and concluded that the solicited-fax rule, a
regulation of the Federal Communications Commission that required solicited
faxes to include compliant opt-out notices, 47 C.F.R. § 64.1200(a)(4)(iv) (effective
until March 19, 2019), was invalid. The district court later granted summary
judgment to Safemark. It ruled that the faxes did not violate the prohibition on
unsolicited faxes because the hotels had provided prior express permission to
receive faxes from Safemark in their franchise agreements. And the district court
reiterated that, because the faxes were solicited, they did not need to contain
compliant opt-out notices. While these appeals were pending, the Commission
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eliminated the solicited-fax rule in the light of our sister circuit’s decision that the
rule is invalid, see Bais Yaakov of Spring Valley v. Fed. Commc’ns Comm’n, 852
F.3d 1078 (D.C. Cir. 2017), cert. denied 138 S. Ct. 1043 (2018). Because we agree
that the faxes were solicited and need not have contained opt-out notices, we
affirm.
I. BACKGROUND
Gorss Motels and E&G operate hotels as franchisees of Wyndham Hotel
Group. To become Wyndham franchisees, both hotels executed franchise
agreements, which required them to maintain Wyndham’s standards at their hotels.
Those standards included that the hotels must purchase or obtain certain items only
from suppliers that Wyndham approved. In section 4.4 of the franchise agreement,
the hotels agreed that Wyndham “may offer optional assistance to [them] with
purchasing items used at or in the Facility.” And the hotels agreed that Wyndham’s
“affiliates may offer this service on [its] behalf.” The hotels provided their fax
numbers in a later section of the agreement. Over their years as Wyndham
franchisees, the hotels also provided their fax numbers on several “Contact
Information” forms.
To assist its franchisees with purchasing items for their hotels, Wyndham
facilitated the “Approved Supplier Program” through its wholly owned subsidiary
Worldwide Sourcing Solutions. The Approved Supplier Program benefits
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franchisees by identifying suppliers with products that conform to Wyndham’s
standards and by obtaining competitive pricing on those products. Franchisees
receive communications about suppliers in the program from Wyndham. And at
Wyndham’s annual conference, which franchisees attend, approved suppliers set
up booths to promote their products. Gorss and E&G registered for these
conferences and again provided their fax numbers on their registration forms.
Suppliers who are part of the Approved Supplier Program have access to the
franchisees. To participate in the program, suppliers are required to pay a fee, part
of which creates a marketing fund that each supplier may use for various marketing
opportunities directed at the franchisees. Suppliers also gain access to a database
containing the franchisees’ contact information. The database included the fax
numbers of Gorss and E&G.
Safemark, a company that manufactures, leases, and sells safes, was an
approved supplier of safes for Wyndham franchisees. In 2013, Safemark hired a
fax broadcasting company to send a one-page fax to the franchisees using the
contact information from the Approved Supplier Program’s database. The 2013 fax
advertised Safemark’s safes and promoted its booth at an upcoming Wyndham
conference. It contained no notice of how a recipient could opt out of receiving
future faxes from Safemark. The 2013 fax was transmitted to 7,402 recipients,
including Gorss.
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Near the end of 2015, Desiree Rico, a Worldwide Sourcing marketing
manager, emailed Michele Anderson, Safemark’s contracts manager, to inquire
whether Safemark would like to spend the remainder of its marketing fund for that
year. Rico suggested several marketing options, including an upcoming fax blast to
Wyndham franchisees and banner advertisements on the Wyndham franchisee
website. Anderson forwarded the email to Nancy Wright, the Safemark Vice
President of Sales. Wright later recalled speaking to Anderson about the fax blast
and “probably said fine.” Anderson responded to Rico’s email by requesting that
the banner ads redirect users who click them to a specific page on Safemark’s
website, but she did not mention the fax blast. The next day, Rico sent Anderson
an email confirming that the fax blast would occur the first week of December and
attached a copy of the Safemark fax.
During the first week of December 2015, Worldwide Sourcing sent a five-
page fax to the franchisees promoting the products of several approved suppliers,
including Safemark. Each page of the fax promoted a different supplier’s product.
The bottom of each page contained an opt-out notice with a Wyndham email and
phone number. The 2015 fax was transmitted to 3,328 recipients, including Gorss
and E&G.
Gorss filed a complaint, which E&G later joined, against Safemark alleging
that the 2013 and 2015 faxes violated the Telephone Consumer Protection Act, 47
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U.S.C. § 227. After discovery ensued, the hotels moved for certification of two
classes, one for recipients of the 2013 fax and one for recipients of the 2015 fax.
To satisfy the requirement for class actions that common questions predominate,
see Fed. R. Civ. P. 23(b)(3), the hotels argued that the question whether the faxes
contained deficient opt-out notices was common to the class. The hotels contended
that, regardless of whether the faxes were unsolicited or solicited, they required
compliant opt-out notices because the Act requires an opt-out notice on unsolicited
faxes, 47 U.S.C. § 227(b)(1)(C), (b)(2)(D), and a regulation from the Federal
Communications Commission known as the “solicited-fax rule” required the same
opt-out notice on solicited faxes, 47 C.F.R. § 64.1200(a)(4)(iv) (effective until
March 19, 2019). After Gorss filed its complaint, Safemark petitioned the
Commission for a retroactive waiver of the solicited-fax rule for its faxes. See
Petition of Safemark Systems, LP for Retroactive Waiver of 47 C.F.R. §
64.1200(a)(4)(iv), CG Docket Nos. 02-278, 05-338 (filed Oct. 6, 2016).
The district court denied class certification. It ruled that common questions
did not predominate because it would be required to conduct individual inquiries
into whether each fax recipient had given permission for Safemark to send the
faxes—that is, whether the faxes were solicited. The district court rejected the
hotels’ argument that, even if the faxes were solicited, the solicited-fax rule
required them to contain compliant opt-out notices. The district court relied on a
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decision from the District of Columbia Circuit holding that the solicited-fax rule
was unlawful, see Bais Yaakov, 852 F.3d 1078. “Without determining whether
Bais Yaakov is binding in this Circuit,” the district court found “the opinion to be
persuasive” and declined to apply the solicited-fax rule to Safemark’s faxes—that
is, if the faxes were solicited, the district court concluded that Safemark’s faxes
need not have contained opt-out notices. “Given that the Solicited Fax Rule d[id]
not apply, and the issues of consent [could not] be resolved without individualized
inquiry,” the district court ruled that common questions did not predominate and so
class certification was inappropriate.
We granted the hotels permission to appeal the denial of class certification.
But the district court denied the hotels’ motion to stay the proceedings while its
interlocutory appeal was pending. Both parties moved for summary judgment.
Meanwhile, the Commission issued an order eliminating the solicited-fax
rule. See Order, Petitions for Reconsideration and/or Declaratory Ruling and
Retroactive Waiver of 47 C.F.R. § 64.1200(a)(4)(iv) Regarding the Commission’s
Opt-Out Notice Requirement for Faxes Sent with the Recipient’s Prior Express
Permission, 33 FCC Rcd. 11179, 11179 (Nov. 14, 2018) [hereinafter Elimination
Order]. In the same order, the Commission “dismiss[ed] as moot the ten pending
petitions for retroactive waiver,” which included Safemark’s petition. Id. at 11183;
see also id. at 11182 n.21 (listing pending petitions). The elimination of the
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solicited-fax rule would become effective when it was published in the Federal
Register. Id. at 11184.
The next day, the district court granted summary judgment to Safemark and
denied the hotels’ motion. It ruled that the faxes were solicited and so not subject
to the Act because the hotels had given their prior express permission to receive
faxes from Safemark. It reasoned that the hotels had given their permission by
agreeing in their franchise agreements that Wyndham and its affiliates could
contact them about purchasing items for their hotels and by providing their fax
numbers to Wyndham in the franchise agreements and on several other occasions.
And the district court relied on its earlier ruling that solicited faxes do not require
opt-out notices.
The hotels appealed the summary judgment, and we consolidated that appeal
with the earlier appeal of the denial of class certification. While the hotels’ appeals
were pending, the Commission’s order eliminating the solicited-fax rule was
published in the Federal Register and so became effective. See Rules and
Regulations Implementing the Telephone Consumer Protection Act of 1991:
Regarding the Commission’s Opt-Out Notice Requirement for Faxes Sent With the
Recipient’s Prior Express Permission, 84 Fed. Reg. 10266, 10266 (FCC Mar. 20,
2019).
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II. STANDARD OF REVIEW
We “review[] de novo summary judgment rulings and draw[] all inferences
and review[] all evidence in the light most favorable to the non-moving party.”
Freixa v. Prestige Cruise Servs., 853 F.3d 1344, 1346 (11th Cir. 2017) (quoting
Craig v. Floyd County, 643 F.3d 1306, 1309 (11th Cir. 2011)). Summary judgment
is appropriate “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a).
III. DISCUSSION
To protect consumers from unsolicited fax advertisements, Congress passed
the Telephone Consumer Protection Act in 1991 and amended it with the Junk Fax
Prevention Act in 2005. See Pub. L. No. 102-243, 105 Stat. 2394 (1991) (codified
as amended at 47 U.S.C. § 227); Pub. L. No. 109-21, 119 Stat. 359 (2005)
(codified at 47 U.S.C. § 227). Congress authorized the Federal Communications
Commission to issue regulations to implement the Act. See 47 U.S.C. § 227(b)(2).
The Act prohibits the use of “any telephone facsimile machine, computer, or other
device to send, to a telephone facsimile machine, an unsolicited advertisement.” Id.
§ 227(b)(1)(C). It defines an “unsolicited advertisement” as “any material
advertising the commercial availability or quality of any property, goods, or
services which is transmitted to any person without that person’s prior express
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invitation or permission, in writing or otherwise.” Id. § 227(a)(5). Safemark does
not contest that its faxes were advertisements. The Act contains an exception that
permits certain unsolicited faxes. An unsolicited fax is permissible when, among
other requirements, the sender has an “established business relationship” with the
recipient and includes an opt-out notice on the fax. See id. § 227(b)(1)(C),
(b)(2)(D).
The Act supplies a private right of action for fax recipients to sue fax
senders for violations of the Act or its regulations, see id. § 227(b)(3), and violators
face stiff penalties. They are liable for the greater of a plaintiff’s actual damages or
$500 per violation. Id. And if a court finds that a defendant “willfully or
knowingly” violated the Act, it may treble the damages. Id.
We divide our discussion in two parts. First, we explain that the district court
did not err when it ruled that the faxes were solicited because the hotels gave their
prior express permission to receive faxes from Safemark. Second, we explain that,
because the Commission eliminated the solicited-fax rule during the pendency of
this consolidated appeal, Safemark’s faxes need not have contained opt-out
notices. Because the district court correctly granted summary judgment to
Safemark, we need not decide whether it correctly denied class certification.
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A. The Faxes Were Solicited Because the Hotels Gave Prior Express
Permission to Receive Faxes from Safemark.
The Act prohibits the use of a fax machine to send “unsolicited
advertisement[s],” id. § 227(b)(1)(C) (emphasis added), but it does not prohibit
solicited advertisements. To decide whether a fax was solicited or unsolicited, we
look to the Act’s definition of an “unsolicited advertisement.” See Bais Yaakov,
852 F.3d at 1082. An “unsolicited advertisement” is one that was “transmitted to
a[] person without that person’s prior express invitation or permission, in writing
or otherwise.” 47 U.S.C. § 227(a)(5). So if a fax recipient provided his “prior
express invitation or permission” to receive the fax, the fax was solicited and not
subject to the Act’s prohibition on unsolicited faxes. See Bais Yaakov, 852 F.3d at
1082.
Because the Act does not define “prior express . . . permission,” we give that
term “its ‘contextually appropriate ordinary meaning.’” In re Failla, 838 F.3d
1170, 1176 (11th Cir. 2016) (quoting Antonin Scalia & Bryan A. Garner, Reading
Law § 6, at 70 (2012)). The term “permission” is defined as “the official act of
allowing someone to do something” or “[a] license or liberty to do something;
authorization.” Permission, Black’s Law Dictionary (11th ed. 2019); see also
Permission, Oxford English Dictionary (online ed.) (defining “permission” as the
“action of permitting, allowing, or giving consent; consent, leave, or liberty to do
something”). And “express permission” is permission “that is clearly and
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unmistakably granted by actions or words, oral or written.” Permission, Black’s
Law Dictionary (11th ed. 2019). The Commission has also provided some
guidance on the meaning of express permission: “Express permission to receive a
faxed ad requires that the consumer understand that by providing a fax number, he
or she is agreeing to receive faxed advertisements.” In re Rules & Regulations
Implementing the Telephone Consumer Protection Act (TCPA) of 1991, 68 Fed.
Reg. 44144, 44168 (FCC July 25, 2003). The qualifier “prior” modifying “express
permission” means that the fax recipient must have given his express permission
before the fax was sent. See Prior, Oxford English Dictionary (online ed.)
(defining “prior” as “[t]hat precedes in time”).
The hotels argue that they never provided their prior express permission to
receive faxes from Safemark, but their franchise agreements constitute an “official
act of allowing” Safemark the liberty to send them faxes. In their franchise
agreements, the hotels agreed that Wyndham “may offer optional assistance to
[them] with purchasing items used at or in the Facility,” and they specifically
agreed that Wyndham “affiliates may offer this service on [Wyndham’s] behalf.”
In a later section, the hotels provided their fax numbers. By agreeing that
Wyndham affiliates could offer assistance with purchasing items for the hotels and
by providing their fax numbers, the hotels gave express permission to receive fax
advertisements from affiliates, including Safemark. See Travel 100 Grp. v.
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Mediterranean Shipping Co., 889 N.E.2d 781, 787–90 (Ill. App. Ct. 2008) (holding
that a travel agency provided its express permission to receive faxes from affiliates
of an industry network it had joined); accord CE Design, Ltd. v. Speedway Crane,
LLC, 35 N.E.3d 1022, 1030–33 (Ill. App. Ct. 2015). The hotels expressly agreed to
receive information about purchasing items from Wyndham affiliates, so they
cannot complain that an affiliate sent them that kind of information.
The hotels argue that their franchise agreements only evince “implied”
permission, but we disagree. To constitute express permission, the agreements
need not use magic words. See Travel 100 Grp., 889 N.E.2d at 789 (rejecting the
argument that a fax recipient could not have provided its express permission if “it
did not state its permission or invitation to receive advertisements in its own
words”). Although express permission requires a “clear[] and unmistakabl[e]
communicat[ion],” it does not require that a recipient state specifically that his
permission includes faxed advertisements. Compare Express, Black’s Law
Dictionary (11th ed. 2019), with Specific, Black’s Law Dictionary (11th ed. 2019).
Our inquiry focuses on whether a “consumer [would] understand that by
providing a fax number, he or she is agreeing to receive faxed advertisements.” In
re Rules & Regulations, 68 Fed. Reg. at 44168. True, the hotels’ agreements did
not use the words “faxed advertisements.” But the franchise agreements
contemplated that the hotels could receive “optional assistance” with “purchasing
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items” from Wyndham and its affiliates. A reasonable consumer would understand
that assistance with purchasing items entails receiving information about buying
products, and an advertisement is by definition an “act of informing,” which
includes “the promotion of goods and services.” Advertisement, Oxford English
Dictionary (online ed.). And the hotels would have to receive this optional
assistance with purchasing items—that is, advertisements—by some medium. By
providing their fax numbers in their agreements, the hotels invited the assistance or
advertisements to come by fax. The combination of these two provisions in the
franchise agreement does not amount to implied permission; it establishes that the
hotels “clearly and unmistakably granted by actions or words” permission for
Safemark to send them faxed advertisements. Permission, Black’s Law Dictionary
(11th ed. 2019).
The hotels equate the provision of their fax numbers in the franchise
agreements with the mere distribution of their fax numbers, but the hotels did more
than merely distribute their fax numbers. The Commission has explained that
“mere distribution or publication of a telephone facsimile number is not the
equivalent of prior express permission to receive faxed advertisements.” In re
Rules & Regulations, 68 Fed. Reg. at 44168. But mere distribution concerns
something akin to the use of a business’s fax number that it listed publicly “for the
convenience of [its] customers,” not “for other companies’ advertising purposes.”
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Id. So a business that goes through the process of joining an industry directory and
agrees to furnish its fax number to industry suppliers has done “more than merely
mak[e] a fax number public.” CE Design, 35 N.E.3d at 1030.
The hotels did not merely distribute their fax numbers when they included
them in their franchise agreements. Unlike a business that publicly lists its fax
number only for its customers’ use, the hotels executed franchise agreements in
which they listed their fax numbers and agreed to receive information from their
franchisor’s affiliates, including Safemark. And Safemark did not obtain the
hotels’ fax numbers from a publicly available source meant for the hotels’
customers; it obtained their fax numbers from Wyndham’s franchisee database, to
which Wyndham provided Safemark access as an approved affiliate. The hotels
voluntarily decided to become Wyndham franchisees and, as part of that process,
agreed to receive information from Wyndham affiliates. So the hotels did more
than merely distribute or publish their fax numbers.
The hotels also suggest that the fax sender must obtain prior express
permission directly from the recipient, but we disagree. To qualify as a solicited
advertisement, the sender must have the recipient’s “prior express invitation or
permission,” but nothing in the text of the Act requires that the sender obtain
permission directly from the recipient. See 47 U.S.C. § 227(a)(5). We cannot
impose a limitation that Congress did not include. Cf. Scalia & Garner, Reading
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Law § 8, at 93 (“Nothing is to be added to what the text states or reasonably
implies . . . .”). A fax recipient may provide his express permission to receive faxes
from third parties, which the hotels did when they agreed in their franchise
agreements with Wyndham to receive assistance with purchasing items from
Wyndham affiliates. See Travel 100 Grp., 889 N.E.2d at 789.
Despite their franchise agreements, the hotels contend that the testimony of
Steven Gorss, the Gorss president, that the hotels never provided Safemark
permission to send them faxes precludes summary judgment, but this testimony is
immaterial. To preclude summary judgment, there must be an issue of fact that is
material, meaning that, “under the applicable substantive law, it might affect the
outcome of the case.” Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014)
(citation and internal quotation marks omitted). That Steven Gorss testified that the
faxes were unsolicited and “[n]o supplier was ever given permission to send faxes
to [Gorss]” does not affect the outcome of this case. This testimony about what
Steven Gorss subjectively thought is immaterial because the hotels had already
provided their express permission in their franchise agreements. And the hotels
have not argued that they ever rescinded that permission. Steven Gorss also
testified that he understood the franchise agreement to mean that Wyndham
“affiliates could provide them information” and that “they could send [them]
advertising any time they wanted,” so long as they did so “legally.” Because the
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hotels gave their prior express permission to receive faxes from Safemark, the
faxes were solicited and so did not violate the Act.
B. Because the Commission Eliminated the Solicited-Fax Rule, Safemark’s
Faxes Need Not Have Contained Opt-Out Notices.
The hotels contend that, even if the faxes were solicited, they violated the
Act because they failed to contain opt-out notices that satisfied the Commission’s
solicited-fax rule. The hotels argue that the district court violated the Hobbs Act
when it refused to apply the solicited-fax rule. The Hobbs Act vests the courts of
appeals with the “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in
part), or to determine the validity” of certain agency orders. 28 U.S.C. § 2342.
According to the hotels, the district court violated that Act when it followed
the decision in Bais Yaakov and declined to apply the solicited-fax rule to
Safemark’s faxes. The hotels point to our decision in Mais v. Gulf Coast Collection
Bureau, 768 F.3d 1110 (11th Cir. 2014), which held that a “district court exceeded
its power” when it “refus[ed] to enforce” an order of the Commission on the
ground that it was inconsistent with the Telephone Consumer Protection Act. Id. at
1119. In Mais, we interpreted the Hobbs Act’s grant of exclusive jurisdiction to the
courts of appeals as stripping district courts of any power to consider the validity
of the Commission’s orders—in facial, preenforcement challenges to an agency
order and private civil enforcement actions in which a party contests the order. See
id.; see also Self v. Bellsouth Mobility, Inc., 700 F.3d 453, 461 (11th Cir. 2012).
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But see PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct.
2051, 2056 (2019) (Thomas, J., concurring in the judgment) (arguing that the logic
underlying our decision in Mais “rests on a mistaken—and possibly
unconstitutional—understanding of the relationship between federal statutes and
the agency orders interpreting them”); id. at 2062 (Kavanaugh, J., concurring in the
judgment) (explaining that “the Hobbs Act does not expressly preclude review in
enforcement actions” and arguing that “[w]e cannot presume that Congress
silently intended to preclude judicial review”).
To address this issue, we must consider the continued validity of the
solicited-fax rule. In 2006, the Commission promulgated a regulation that required
senders of solicited faxes to include the opt-out notice required by the Act for
unsolicited fax advertisements—the so-called “solicited-fax rule.” See Rules and
Regulations Implementing the Telephone Consumer Protection Act of 1991; Junk
Fax Prevention Act of 2005, 71 Fed. Reg. 25967, 25971–72 (FCC May 3, 2006)
(formerly codified at 47 C.F.R. § 64.1200(a)(4)(iv)). The solicited-fax rule
provided that “[a] facsimile advertisement that is sent to a recipient that has
provided prior express invitation or permission to the sender must include an opt-
out notice that complies with the requirements in paragraph (a)(4)(iii) of this
section.” 47 C.F.R. § 64.1200(a)(4)(iv) (effective until March 19, 2019). Paragraph
(a)(4)(iii) of that section fleshed out the statutory requirement of an opt-out notice
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on an unsolicited fax. Id. § 64.1200(a)(4)(iii); see also 47 U.S.C. § 227(b)(2)(D).
After promulgating the solicited-fax rule, the Commission faced several
challenges to it. In response to several petitioners’ challenge in 2014, the
Commission asserted that it had authority to require opt-out notices on solicited
faxes, but it also granted some petitioners retroactive waivers. See Order, Anda,
Inc., 29 FCC Rcd. 13998, 13998, 14005 (Oct. 30, 2014). The Commission
encouraged others to seek retroactive waivers, see id. at 14008, and Safemark filed
a petition for a waiver in 2016.
Fax senders filed petitions for review of the 2014 order in several circuits, so
the Judicial Panel on Multidistrict Litigation consolidated the petitions in the
District of Columbia Circuit. In Bais Yaakov, the court “h[e]ld that the FCC’s 2006
Solicited Fax Rule is unlawful to the extent that it requires opt-out notices on
solicited faxes.” 852 F.3d at 1083. The court explained that “Congress drew a line
in the text of the [Telephone Consumer Protection Act] between unsolicited fax
advertisements and solicited fax advertisements.” Id. at 1082. Because “the Act
requires an opt-out notice on unsolicited fax advertisements [but] does not require
a similar opt-out notice on solicited fax advertisements,” the Commission has no
authority to require opt-out notices on solicited faxes. Id. That is, the Commission
cannot “mandate[] that senders of solicited faxes comply with a statutory
requirement that applies only to senders of unsolicited faxes.” Id. at 1080.
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In response to the decision in Bais Yaakov, the Commission eliminated the
solicited-fax rule in an order. In November 2018, Patrick Webre, the chief of the
Commission’s Consumer and Governmental Affairs Bureau, issued the order
pursuant to his delegated rulemaking authority. See Elimination Order, 33 FCC
Rcd. at 11179; see also 47 C.F.R. §§ 0.141, 0.204. The chief’s action has the same
force and effect as actions of the Commission. 47 C.F.R. § 0.203(b). The order
“eliminate[d] the Commission’s rule requiring opt-out notices on faxes sent with
the recipients’ prior permission or consent.” Elimination Order, 33 FCC Rcd. at
11179. Specifically, the order “eliminate[d] section 64.1200(a)(4)(iv) from Title 47
of the Code of Federal Regulations.” Id. at 11183. The chief explained that “this
action [was taken] in response to the decision of the Court of Appeals for the D.C.
Circuit finding that the rule is unlawful.” Id. at 11179 (citation and internal
quotation marks omitted). And the chief “dismiss[ed] as moot ten pending petitions
for retroactive waiver of the rule”—including Safemark’s petition. Id.
The elimination of the solicited-fax rule took effect “upon publication of
th[e] Order in the Federal Register.” Id. at 11184. While these appeals were
pending, the order was published in the Federal Register on March 20, 2019. See
Rules and Regulations Implementing the Telephone Consumer Protection Act of
1991: Regarding the Commission’s Opt-Out Notice Requirement for Faxes Sent
With the Recipient’s Prior Express Permission, 84 Fed. Reg. at 10266. And the
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solicited-fax rule no longer appears in the Electronic Code of Federal Regulations.
See 47 E.C.F.R. § 64.1200 (current as of July 24, 2019), available at
http://www.ecfr.gov (last visited July 26, 2019). The solicited-fax rule no longer
stands as an operative regulation.
The hotels argue that the Commission’s elimination of the rule applies only
prospectively and so does not preclude liability for Safemark’s past violations of
the rule while it was in effect, but we disagree. To be sure, the retroactive effect of
the repeal of a legal obligation can pose thorny questions. The common-law rule
was “that after the expiration or repeal of a law, no penalty can be enforced, nor
punishment inflicted, for violations of the law committed while it was in force,
unless some special provision be made for that purpose by statute.” Yeaton v.
United States, 9 U.S. 281, 283 (1809) (Marshall, C.J.). This rule governed not only
penalties under criminal and penal statutes but also civil statutory rights of action
that had yet to be reduced to judgment. See, e.g., Curran v. Owens, 15 W. Va. 208,
218–24 (1879) (collecting decisions); J.G. Sutherland, Statutes and Statutory
Construction § 163, at 217 & n.6 (1891) (stating the rule that “[r]ights depending
on a statute and still inchoate, not perfected by final judgment or reduced to
possession, are lost by repeal or expiration of the statute” and collecting decisions).
For federal statutes, Congress later reversed the common-law rule by
prescribing that “[t]he repeal of any statute shall not have the effect to release or
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extinguish any penalty, forfeiture, or liability incurred under such statute, unless
the repealing Act shall so expressly provide.” 1 U.S.C. § 109 (emphasis added). Of
course, regulations are not statutes, so section 109 does not by its terms include
them. It may be that the elimination of a regulation is still generally subject to the
common-law rule. But we need not answer that question to resolve this appeal.
Under either the common-law rule or modern retroactivity doctrine, the
retroactive effect of the elimination of a legal obligation depends ultimately on the
expressed intent of the legislator. See Scalia & Garner, Reading Law § 41, at 262
(“[A] statute can explicitly or by clear implication be made retroactive.”); Curran,
15 W. Va. at 226 (“Whether the repealing statute shall have the effect to stop
proceedings in pending cases depends upon the intent of the Legislature.”). Seen in
this light, the contradiction between the common-law rule and the modern rule
reflected in section 109 is more apparent than real. Those rules are not inflexible
commands but are instead rebuttable presumptions of textual interpretation. See
Scalia & Garner, Reading Law § 41, at 261 (explaining that “[t]he presumption
against retroactivity is a guide to interpretation”). That both are presumptions is
obvious from each rule’s inclusion of a proviso that it can be dislodged by a clear
expression of the contrary legislative intent. Compare Yeaton, 9 U.S. at 283
(forbidding post-repeal enforcement of pre-repeal liabilities “unless some special
provision be made for that purpose by statute”), with 1 U.S.C. § 109 (stating that
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repeal does not extinguish past liabilities “unless the repealing Act shall so
expressly provide”).
When the Commission eliminated the solicited-fax rule, both its rationale
and its actions made clear that the rule could no longer be enforced against
defendants, not even for past violations. The rationale for the order eliminating the
solicited-fax rule was the decision in Bais Yaakov “that the rule [was] unlawful.”
Elimination Order, 33 FCC Rcd. at 11183. The Commission did not merely
determine that the solicited-fax rule was bad policy and should be repealed;
instead, it accepted the holding of Bais Yaakov that the solicited-fax rule was
invalid and, as a result, was never legally in force at all. See Metheny v.
Hammonds, 216 F.3d 1307, 1310 (11th Cir. 2000) (explaining that a regulation
without statutory authority is “legally void”). The Commission’s actions with
respect to the pending waiver petitions also manifested its understanding that the
elimination of the solicited-fax rule precluded liability for past violations. In the
same order eliminating the solicited-fax rule, the Commission explained that,
because it had eliminated the rule, it “f[ound] no need to consider the remaining
pending petitions seeking temporary waiver of the rule,” which included
Safemark’s pending petition, and dismissed Safemark’s petition as moot.
Elimination Order, 33 FCC Rcd. at 11183; see also id. at 11182 n.21 (listing
pending petitions). By dismissing Safemark’s petition as moot, the Commission
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made clear that Safemark needed no waiver because the eliminated rule could not
be applied to its faxes.
“[O]ur duty is to decide this case according to the law existing at the time of
our decision.” Cort v. Ash, 422 U.S. 66, 76 (1975). Even if the hotels could have
prevailed when the solicited-fax rule was extant, the Commission has eliminated
the rule and has unambiguously abated liability for any past violations of its
requirements. So Safemark is entitled to judgment as a matter of law. And “[w]e
may, of course, affirm the [summary] judgment of the district court on any ground
that finds support in the record.” Hardison v. Cohen, 375 F.3d 1262, 1269 (11th
Cir. 2004).
IV. CONCLUSION
We AFFIRM the summary judgment in favor of Safemark.
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WILLIAM PRYOR, Circuit Judge, joined by NEWSOM and BRANCH, Circuit
Judges, concurring:
Because the elimination of the solicited-fax rule applies to Safemark, we
need not decide whether the district court violated the Hobbs Act when it refused
to apply that rule. But I write separately to explain that our precedents have
misconstrued the Act’s grant of “exclusive jurisdiction” to the circuit courts “to
enjoin, set aside, suspend (in whole or in part), or to determine the validity of”
certain agency orders, 28 U.S.C. § 2342. Our precedents, Self v. Bellsouth
Mobility, Inc., 700 F.3d 453 (11th Cir. 2012), and Mais v. Gulf Coast Collection
Bureau, 768 F.3d 1110 (11th Cir. 2014), interpret the Act to mean that an agency’s
interpretation of federal law in a final order is subject to only a single 60-day
window for judicial review in a single circuit-court proceeding, outside of which
no party to any proceeding in any court may question the agency’s interpretation,
no matter how wrong. Four justices of the Supreme Court have recently
explained—with good reason and without any justice voicing a contrary
interpretation—that the Act means no such thing and might well be
unconstitutional if it did. See PDR Network, LLC v. Carlton & Harris
Chiropractic, Inc., 139 S. Ct. 2051, 2057, 2062–66 (2019) (Kavanaugh, J.,
concurring in the judgment); see also id. at 2056–57 (Thomas, J., concurring in the
judgment). The Hobbs Act, correctly construed, does not require district courts
adjudicating cases within their ordinary jurisdiction to treat agency orders that
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interpret federal statutes as binding precedent. Our precedents’ interpretation of the
Hobbs Act ignores the statutory context, generates absurd results, and raises
serious constitutional doubts. In the earliest appropriate case, we should correct our
mistake en banc.
The Hobbs Act, also known as the Administrative Orders Review Act, see
id. at 2053 (majority opinion), provides for direct review of final orders of
administrative agencies by petitions for review filed in the courts of appeals. In
that context, the Act vests the courts of appeals with the “exclusive jurisdiction to
enjoin, set aside, suspend (in whole or in part), or to determine the validity of”
orders of certain agencies, including the Federal Communications Commission, 28
U.S.C. § 2342. The Act establishes comprehensive procedures for the exercise of
that jurisdiction. An agency must provide notice “[o]n the entry of a final order
reviewable under th[e] [Act].” Id. § 2344. Then, “[a]ny party aggrieved by th[at]
final order” has “60 days after its entry” to “file a petition to review the order in the
court of appeals.” Id. The court of appeals in such a proceeding receives the
administrative record, see id. § 2346; determines the legal questions presented, see
id. § 2347; and ultimately may “make and enter . . . a judgment determining the
validity of, and enjoining, setting aside, or suspending, in whole or in part, the
order of the agency,” id. § 2349(a). When multiple petitions for review of the same
order are filed, they are consolidated in a single circuit court. See id. § 2112(a)(3).
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This Court has construed the Act’s grant of “exclusive jurisdiction” to the
courts of appeals to bar district courts from so much as considering any
argument—by any party, in any case—that an agency order misinterpreted the law,
“no matter how wrong the agency’s interpretation might be,” PDR Network, 139 S.
Ct. at 2063 (Kavanaugh, J., concurring in the judgment). In Self v. Bellsouth
Mobility, Inc., we held that a district court must dismiss a complaint for lack of
subject-matter jurisdiction if, “[t]o prevail on her claims, [the plaintiff] must
establish” a proposition of law “which would mean that [agency] orders are wrong
or invalid.” 700 F.3d at 462. We reasoned that, “[b]ecause the courts of appeals
have exclusive jurisdiction over claims to enjoin, suspend, or invalidate a final
[agency] order, the district courts do not have it.” Id. at 461. Later, in Mais v. Gulf
Coast Collection Bureau, we held that a district court “exceeded its jurisdiction”
when it entertained and agreed with the defendant’s argument that the agency order
on which the plaintiff relied was unambiguously inconsistent with the governing
statute. 768 F.3d at 1119. “As we s[aw] it, the district court lacked the power to
consider in any way the validity of the [agency] [r]uling,” including the correctness
of its legal conclusions. Id. at 1113. These precedents are wrong.
The Act’s grant of exclusive jurisdiction means that a district court may not
entertain a petition for review of an agency order subject to the Act. And a district
court may not suspend the effect of an agency order upon a party that the order
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directly binds. See Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget
Transatlantic, 400 U.S. 62, 69–72 (1970). But the Hobbs Act does not require a
district court to follow an agency’s interpretation of a statute every time a case
within its jurisdiction presents a question of federal law that the agency has
addressed in an order.
Contrary to fundamental principles of statutory construction, our precedents
latched onto the term “exclusive jurisdiction” without asking the key question:
“‘exclusive jurisdiction’ to do what?” PDR Network, 139 S. Ct. at 2063
(Kavanaugh, J., concurring in the judgment). “Perhaps no interpretive fault is more
common than the failure to follow the whole-text canon, which calls on the judicial
interpreter to consider the entire text, in view of its structure and of the physical
and logical relation of its many parts.” Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts § 24, at 167 (2012). Our Hobbs Act
precedents illustrate this failure.
The Hobbs Act grants the courts of appeals the exclusive jurisdiction to
directly review certain agency orders by petitions for review. From beginning to
end, the Act establishes procedures to govern such direct-review proceedings. See,
e.g., 28 U.S.C. § 2343 (defining venue for petition proceedings); id. § 2344
(establishing timeliness, content, and service requirements for petitions); id. § 2345
(authorizing prehearing conferences in petition proceedings); id. § 2346 (providing
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for transmittal of the record from the agency to the court of appeals in petition
proceedings); id. § 2347 (establishing various procedural rules for petition
proceedings); id. § 2348 (describing the potential parties by right or intervention
and conferring a right to counsel in petition proceedings); id. § 2350 (providing
that the Supreme Court may exercise its normal forms of appellate jurisdiction
over decisions of the circuit courts in petition proceedings). So the Act’s grant of
exclusive jurisdiction clearly means that a district court lacks jurisdiction over a
petition for review of an agency order to which the Hobbs Act applies. But nothing
in the scheme of the Act suggests—much less dictates—our further conclusion that
whenever an interpretation in an agency order touches on a legal issue in an action
within the jurisdiction of a district court, the court must either dismiss the
complaint or treat the agency order as binding precedent.
Our precedents’ focus on the grant of exclusive jurisdiction in section 2342
ignores that another provision of the Hobbs Act employs the same language and
confirms that it refers only to direct review of agency orders. Under section
2349(a), “[t]he court of appeals in which the record on review is filed . . . has
exclusive jurisdiction to make and enter, on the petition, evidence, and proceedings
set forth in the record on review, a judgment determining the validity of, and
enjoining, setting aside, or suspending, in whole or in part, the order of the
agency.” Id. § 2349(a). This provision unambiguously refers to the court of
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appeals’ direct action upon the order under petition for review, and it does so in
language that is materially indistinguishable from that of section 2342. In the light
of this parallel language, there is no reason to think that section 2342 refers to any
proceedings other than direct review. See Scalia & Garner, Reading Law § 25, at
170 (explaining that materially identical language “is presumed to bear the same
meaning throughout a text”).
The judicial-review section of the Communications Act, 47 U.S.C. § 402,
which incorporates the Hobbs Act by reference, also confirms that the Act’s grant
of exclusive jurisdiction concerns only direct review of the agency order. Section
402(a) makes certain orders of the Federal Communications Commission
reviewable under the Hobbs Act. It provides that “[a]ny proceeding to enjoin, set
aside, annul, or suspend any order of the Commission . . . (except those appealable
under subsection (b) . . . ) shall be brought as provided by” the Act. Id. § 402(a)
(emphasis added). Next, section 402(b) provides that certain decisions and orders
of the Commission may be directly appealed to the District of Columbia Circuit.
See id. § 402(b). These two adjacent subsections present petitions for review under
the Hobbs Act and appeals under section 402(b) as two parallel avenues of judicial
review that apply to different agency actions but belong to the same basic kind.
The unmistakable implication is that the words “proceeding to enjoin, set aside,
annul, or suspend any order of the Commission,” id. § 402(a), like an appeal, refer
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to a direct-review proceeding that may result in a judgment operating directly
against the agency order.
Our precedents assume that a district court that declined to follow an agency
order subject to the Hobbs Act would encroach upon the courts of appeals’
“exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to
determine the validity of” such orders, see Mais, 768 F.3d at 1120–21; Self, 700
F.3d at 461–62, but this erroneous premise flows from our failure to interpret
section 2342 in the context of the whole Act. In the sole context with which the
Act is concerned—that of direct review of agency orders by petitions for review—
a court “determines the validity” of the order only when its judgment operates
directly against the order and the agency that made it. That is, in much the same
way that our disposition of an appeal operates on the judgment of the district court,
a disposition of a Hobbs Act petition operates on the order under review. See, e.g.,
Bais Yaakov of Spring Valley v. Fed. Commc’ns Comm’n, 852 F.3d 1078, 1083
(D.C. Cir. 2017) (“vacat[ing]” the order under review and “remand[ing]” to the
agency).
But when a district court merely “disagrees with the agency’s interpretation”
of governing law in a run-of-the-mill civil action, “that ruling does not invalidate
the order and has no effect on the agency’s ability to enforce the order against
others.” PDR Network, 139 S. Ct. at 2063 (Kavanaugh, J., concurring in the
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judgment) (emphasis added). “Rather, the district court simply determines that the
defendant is not liable under the correct interpretation of the statute,” which it
determines—just as it would in any other case within its jurisdiction—“under the
usual principles of statutory interpretation, affording appropriate respect to the
agency’s interpretation.” Id. at 2063–64. By declining to follow an agency order
that it thinks clearly misinterpreted the law, the district court does not “determine
the validity” of that order in the sense contemplated by the Hobbs Act. See id. at
2063; see also id. at 2056 (Thomas, J., concurring in the judgment) (“Interpreting a
statute does not ‘determine the validity’ of an agency order interpreting or
implementing the statute.”).
That our precedents overread the grant of exclusive jurisdiction in section
2342 becomes even clearer when we consider that other statutes provide for direct
review of agency action “and expressly preclude judicial review in subsequent
enforcement actions.” Id. at 2059 (Kavanaugh, J., concurring in the judgment)
(emphasis added) (collecting statutes). For example, one paragraph of the Clean
Water Act mirrors the Hobbs Act in providing for direct review of certain agency
orders in the courts of appeals if an application for review is made within 120 days.
33 U.S.C. § 1369(b)(1). The next paragraph of the Act provides that those orders
“shall not be subject to judicial review in any civil or criminal proceeding for
enforcement.” Id. § 1369(b)(2). “Congress knows how to explicitly preclude
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judicial review in enforcement proceedings,” and it did so years before it passed
the Hobbs Act. PDR Network, 139 S. Ct. at 2061 (Kavanaugh, J., concurring in the
judgment); see also id. at 2064–65 (discussing the Emergency Price Control Act of
1942, which combined an analogous grant of “exclusive jurisdiction” with an
explicit bar on other courts’ “power to consider the validity of” covered agency
actions (citation omitted)). And “elementary principles of administrative law
establish that the proper default rule is to allow [judicial] review” unless Congress
says otherwise. Id. at 2060; see also see also Bowen v. Mich. Acad. of Family
Physicians, 476 U.S. 667, 670 (1986) (“begin[ning]” statutory construction “with
the strong presumption that Congress intends judicial review of administrative
action”). That Congress enacted the Hobbs Act without “expressly preclud[ing] as-
applied judicial review of an agency interpretation in subsequent enforcement
proceedings” underscores our precedents’ error in giving it that effect. PDR
Network, 139 S. Ct. at 2063 (Kavanaugh, J., concurring in the judgment).
Consider the stark implications of our misconstruction of the Hobbs Act.
Under our interpretation, in “a dispute between private parties,” the party that “did
not even initiate th[e] suit” may not be heard to argue that the agency order being
enforced against him misinterpreted the law. Id. at 2056 (Thomas, J., concurring in
the judgment); cf. Mais, 768 F.3d at 1120–21. Conversely, a plaintiff with a viable
claim under the law Congress enacted may be unable to pursue it simply because
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an agency has misinterpreted the law in an order to which he was a not a party. Cf.
Self, 700 F.3d at 461–64. These bars may apply even if the party had no reason to
file a petition for review when the order was made and possibly even if the party
did not exist when the order was made.
True, the Administrative Procedure Act may provide an exception to our
reading of the Hobbs Act for a party who had no “prior” and “adequate”
“opportunity for judicial review,” 5 U.S.C. § 703; see also PDR Network, 139 S.
Ct. at 2055–56 (majority opinion), but it is doubtful that the Hobbs Act’s grant of
exclusive jurisdiction depends on an individual assessment of the adequacy of a
party’s prior opportunities to challenge an order. Such case-by-case, party-by-party
determinations of adequacy would be difficult to evaluate—contravening the
general principle that “jurisdictional rules should be clear.” Lapides v. Bd. of
Regents of Univ. Sys. of Ga., 535 U.S. 613, 621 (2002).
At least in the ordinary case, our precedents task all persons with both the
foreknowledge—some would say the clairvoyance—to identify any agency orders
that might concern them in future litigation and the resources to bring an
immediate challenge against each of those orders. “Requiring all those potentially
affected parties to bring a facial, pre-enforcement challenge within 60 days or
otherwise forfeit their right to challenge an agency’s interpretation of a statute
borders on the absurd.” PDR Network, 139 S. Ct. at 2062 (Kavanaugh, J.,
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concurring in the judgment); see also Adamo Wrecking Co. v. United States, 434
U.S. 275, 290 (1978) (Powell, J., concurring) (observing that it “is totally
unrealistic to assume that more than a fraction of the persons and entities affected
by [agency action]—especially small contractors scattered across the country—
would have knowledge of its promulgation or familiarity with or access to the
Federal Register”).
Our precedents attempt to sweeten this bitter pill by suggesting that a party
to a private civil action could “ask the [agency] to reconsider its interpretation” and
then “challenge the [agency’s] response in the court of appeals,” Mais, 768 F.3d at
1121; see also Self, 700 F.3d at 462, but this “promise of an alternative path of
judicial review is empty,” PDR Network, 139 S. Ct. at 2065 (Kavanaugh, J.,
concurring in the judgment). “[J]udicial review may not always be available under
that route.” Id. at 2065–66. For example, a petition for reconsideration of an order
of the Commission must be filed within 30 days, less time than the Hobbs Act
affords for a petition for review. See 47 U.S.C. § 405(a). And the Commission has
no duty to issue declaratory rulings. See 47 C.F.R. § 1.2(a) (“The Commission
may . . . issue a declaratory ruling” as provided by the Administrative Procedure
Act. (emphasis added)); 5 U.S.C. § 554(e) (“The agency, . . . in its sound
discretion, may issue a declaratory order . . . .” (emphasis added)). “And even if
judicial review is available, it may only be deferential judicial review of the
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agency’s discretionary decision to decline to take new action, not judicial review of
the agency’s initial interpretation of the statute.” PDR Network, 139 S. Ct. at 2066
(Kavanaugh, J., concurring in the judgment).
Unsurprisingly, if the Hobbs Act meant what we have said it means, its
constitutionality would be in doubt. For one, our interpretation “raises significant
questions under the Due Process Clause.” Id. at 2062. As we have construed it, the
Hobbs Act prevents parties “from raising arguments about the reach and authority
of agency rules enforced against them.” Id. So it effectively grants agency orders
binding, issue-preclusive effect with respect to every party in every possible suit
that may come before a district court. As the Supreme Court has long
acknowledged, due process generally prohibits the issue preclusion of nonparties.
See Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 329 (1971);
see also Taylor v. Sturgell, 553 U.S. 880, 893–95 (2008) (enumerating the six
limited exceptions to this rule). But, under our interpretation, the Hobbs Act estops
vast numbers of nonparties who—if and when it eventually matters to them—
might wish to advance a view of the law different from that of the agency.
Our interpretation also threatens the separation of powers. If our precedents
were correct that district courts could never second-guess agency interpretations in
orders subject to the Hobbs Act, “then the Act would trench upon Article III’s
vesting of the ‘judicial Power’ in the courts.” PDR Network, 139 S. Ct. at 2057
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(Thomas, J., concurring in the judgment); see also U.S. Const. art. III, § 1. “[T]he
judicial power, as originally understood, requires a court to exercise its
independent judgment in interpreting and expounding upon the laws,” and that
duty “necessarily entails identifying and applying the governing law.” PDR
Network, 139 S. Ct. at 2057 (Thomas, J., concurring in the judgment) (citation and
internal quotation marks omitted).
To be sure, district courts must sometimes defer to agency interpretations of
statutes. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837
(1984). But that deference only occurs if the district court determines that the
governing statute is ambiguous—a determination that requires the district court to
consult first the text of the statute. See id. at 842–43. By contrast, our interpretation
of the Hobbs Act prevents district courts from even considering the statute and
instead requires them to “treat [agency] interpretations of the [statute] as
authoritative,” no matter how patently incorrect. See PDR Network, 139 S. Ct. at
2057 (Thomas, J., concurring in the judgment) (citation and internal quotation
marks omitted). That is, our interpretation requires not “mere . . . deference” to
agency interpretations but absolute “abdication” of the judicial power to determine
the law that governs a case. Id. at 2066 (Kavanaugh, J., concurring in the
judgment). The Supreme Court has never suggested that Congress can transfer that
core judicial power to an agency wholesale. See Commodity Futures Trading
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Comm’n v. Schor, 478 U.S. 833, 851 (1986) (highlighting the constitutional
significance of “the extent to which the ‘essential attributes of judicial power’ are
reserved to Article III courts”). In the same vein, by “requir[ing] courts to give the
force of law to agency pronouncements on matters of private conduct without
regard to the text of the governing statute,” the Act as we have interpreted it would
effectively “permit a body other than Congress to exercise the legislative power, in
violation of Article I.” PDR Network, 139 S. Ct. at 2057 (Thomas, J., concurring in
the judgment) (citation and internal quotation marks omitted); see also U.S. Const.
art. I, § 1.
At a minimum, we should reconsider our precedents to avoid these serious
constitutional difficulties. See Scalia & Garner, Reading Law § 38, at 247
(explaining that, under the constitutional-doubt canon, “[a] statute should be
interpreted in a way that avoids placing its constitutionality in doubt”); see also
PDR Network, 139 S. Ct. at 2062 (Kavanaugh, J., concurring in the judgment)
(suggesting the application of the constitutional-doubt canon to the Hobbs Act).
When a court is “deciding which of two plausible statutory constructions to adopt,”
“[i]f one of them would raise a multitude of constitutional problems, the other
should prevail” based on “the reasonable presumption that Congress did not intend
the alternative which raises serious constitutional doubts.” Clark v. Martinez, 543
U.S. 371, 380–81 (2005). As I have explained, an alternative reading of the Hobbs
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Act is not only plausible but compelling. The Act excludes district courts from
participating in the direct review of agency orders, but it does not require district
courts exercising their ordinary jurisdiction to treat agency orders as if they were
binding precedent. Instead of perpetuating an incorrect—and probably
unconstitutional—interpretation of the Hobbs Act, we should overrule our
decisions in Self and Mais en banc as soon as an appropriate case comes before us.
39