Jose Gomez v. Campbell-Ewald Co.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE GOMEZ, individually and on No. 13-55486
behalf of a class of similarly situated
individuals, D.C. No.
Plaintiff-Appellant, 2:10-cv-02007-
DMG-CW
v.
CAMPBELL-EWALD COMPANY, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted
July 11, 2014—Pasadena, California
Filed September 19, 2014
Before: Fortunato P. Benavides,* Kim McLane Wardlaw,
and Richard R. Clifton, Circuit Judges.
Opinion by Judge Benavides
*
The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
2 GOMEZ V. CAMPBELL-EWALD CO.
SUMMARY**
Telephone Consumer Protection Act
The panel vacated the district court’s summary judgment
in favor of the defendant on personal and putative class
claims under the Telephone Consumer Protection Act.
The plaintiff alleged that the defendant company
instructed or allowed a third-party vendor to send unsolicited
text messages on behalf of the United States Navy, with
which the defendant had a marketing contract.
The panel held that pursuant to Diaz v. First Am. Home
Buyers Prot. Corp., 732 F.3d 948 (9th Cir. 2013), the
plaintiff’s individual claim was not mooted by his refusal to
accept a settlement offer under Federal Rule of Civil
Procedure 68. Pursuant to Pitts v. Terrible Herbst, Inc., 653
F.3d 1081 (9th Cir. 2011), the putative class claims were not
mooted where the plaintiff rejected the settlement offer
before he moved for class certification. The panel concluded
that Pitts and Diaz were not clearly irreconcilable with
Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013)
(addressing collective action brought pursuant to Fair Labor
Standards Act).
The panel held that 47 U.S.C. § 227(b)(1)(A)(iii), which
restricts unsolicited text messaging, does not violate the First
Amendment.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GOMEZ V. CAMPBELL-EWALD CO. 3
The panel held that a defendant may be held vicariously
liable for TCPA violations where the plaintiff establishes an
agency relationship, as defined by federal common law,
between the defendant and a third-party caller.
Finally, the panel held that the defendant was not entitled
to derivative sovereign immunity. It remanded the case for
further proceedings consistent with this opinion.
COUNSEL
Evan M. Meyers (argued), McGuire Law, P.C., Chicago,
Illinois; Michael J. McMorrow, McMorrow Law, P.C.,
Chicago, Illinois; and David C. Parisi, Parisi & Havens LLP,
Sherman Oaks, California, for Plaintiff-Appellant.
Laura A. Wytsma (argued), Michael L. Mallow, Christine M.
Reilly, and Meredith J. Siller, Loeb & Loeb LLP, Los
Angeles, California, for Defendant-Appellee.
OPINION
BENAVIDES, Circuit Judge:
Plaintiff Jose Gomez appeals adverse summary judgment
on personal and putative class claims brought pursuant to the
Telephone Consumer Protection Act (“TCPA”), 47 U.S.C.
§ 227(b)(1)(A)(iii) (2012). Gomez alleges that the Campbell-
Ewald Company instructed or allowed a third-party vendor to
send unsolicited text messages on behalf of the United States
Navy, with whom Campbell-Ewald had a marketing contract.
4 GOMEZ V. CAMPBELL-EWALD CO.
Because we conclude that Campbell-Ewald is not entitled to
immunity, and because we find no alternate basis upon which
to grant its motion for summary judgment, we vacate the
judgment and remand to the district court.
I.
The facts with respect to Gomez’s personal claim are
largely undisputed. On May 11, 2006, Gomez received an
unsolicited text message stating:
Destined for something big? Do it in the
Navy. Get a career. An education. And a
chance to serve a greater cause. For a FREE
Navy video call [number].
The message was the result of collaboration between the
Navy and the Campbell-Ewald Company,1 a marketing
consultant hired by the Navy to develop and execute a
multimedia recruiting campaign. The Navy and Campbell-
Ewald agreed to “target” young adults aged 18 to 24, and to
send messages only to cellular users that had consented to
solicitation. The message itself was sent by Mindmatics, to
whom the dialing had been outsourced. Mindmatics was
responsible for generating a list of phone numbers that fit the
stated conditions, and for physically transmitting the
messages. Neither the Navy nor Mindmatics is party to this
suit.
In 2010, Gomez filed the present action against
Campbell-Ewald, alleging a single violation of 47 U.S.C.
§ 227(b)(1)(A)(iii), which states:
1
The company is now known as Lowe Campbell Ewald.
GOMEZ V. CAMPBELL-EWALD CO. 5
It shall be unlawful for any person within the
United States, or any person outside the
United States if the recipient is within the
United States—
(A) to make any call (other than a call
made for emergency purposes or made
with the prior express consent of the
called party) using any automatic
telephone dialing system or an artificial or
prerecorded voice— . . .
(iii) to any telephone number assigned
to a paging service [or] cellular
telephone service . . . .
Gomez contends that he did not consent to receipt of the text
message. He also notes that he was 40 years old at the time
he received the message, well outside of the Navy’s target
market. It is undisputed that a text message constitutes a call
for the purposes of this section. See Satterfield v. Simon &
Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009) (“[W]e hold
that a text message is a ‘call’ within the meaning of the
TCPA.”). In addition to seeking compensation for the alleged
violation of the TCPA, Gomez also sought to represent a
putative class of other unconsenting recipients of the Navy’s
recruiting text messages.
After a 12(b)(6) motion to dismiss was denied, Campbell-
Ewald tried to settle the case. Campbell-Ewald offered
Gomez $1503.00 per violation, plus reasonable costs, but
Gomez rejected the offer by allowing it to lapse in accordance
with its own terms.
6 GOMEZ V. CAMPBELL-EWALD CO.
Campbell-Ewald then moved to dismiss the case under
Rule 12(b)(1), arguing that Gomez’s rejection of the offer
mooted the personal and putative class claims. After the
court denied the motion, Campbell-Ewald moved for
summary judgment, seeking derivative immunity under
Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940).
In opposition to the summary judgment motion, Gomez
presented evidence that the Navy intended the messages to be
sent only to individuals who had consented or “opted in” to
receive messages like the recruiting text. A Navy
representative testified that Campbell-Ewald was not
authorized to send texts to individuals who had not opted in.
The district court ultimately granted the motion, holding that
Campbell-Ewald is “immune from liability under the doctrine
of derivative sovereign immunity.” Gomez v. Campbell-
Ewald Co., No. CV 10-2007 DMG CWX, 2013 WL 655237,
at *6 (C.D. Cal. Feb. 22, 2013). Gomez filed a timely appeal,
arguing that the Yearsley doctrine is inapplicable.
This Court reviews summary judgment de novo, affirming
only where there exists no genuine dispute of material fact.
Satterfield, 569 F.3d at 950; see also FED. R. CIV. P. 56(a).
We are free to affirm “on any basis supported by the record.”
Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir.
2009).
II.
We begin with jurisdiction. Upon Gomez’s timely
appeal, Campbell-Ewald filed a motion to dismiss for lack of
jurisdiction, arguing that the personal and putative class
claims were mooted by Gomez’s refusal to accept the
settlement offer. We denied that motion without prejudice,
and now reject Campbell-Ewald’s argument on the merits.
GOMEZ V. CAMPBELL-EWALD CO. 7
Gomez’s individual claim is not moot. Campbell-Ewald
argues that “whether or not the class action here is moot,” the
individual claim was mooted by Gomez’s rejection of the
offer. The company is mistaken. Although this issue was
unsettled until recently, we have now expressly resolved the
question. “[A]n unaccepted Rule 68 offer that would fully
satisfy a plaintiff’s claim is insufficient to render the claim
moot.” Diaz v. First Am. Home Buyers Prot. Corp., 732 F.3d
948, 950 (9th Cir. 2013). Because the unaccepted offer alone
is “insufficient” to moot Gomez’s claim, and as Campbell-
Ewald identifies no alternate or additional basis for mootness,
the claim is still a live controversy.
Similarly, the putative class claims are not moot. We
have already explained that “an unaccepted Rule 68 offer of
judgment—for the full amount of the named plaintiff’s
individual claim and made before the named plaintiff files a
motion for class certification—does not moot a class action.”
Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1091–92 (9th
Cir. 2011). Like the Pitts plaintiff, Gomez rejected the offer
before he moved for class certification. Gomez’s rejection
therefore does not affect any class claims.
Campbell-Ewald recognizes that it is asking this panel to
depart from these precedents. Yet it is well settled that we
are bound by our prior decisions. Miller v. Gammie, 335 F.3d
889, 900 (9th Cir. 2003) (en banc). Although there is an
exception for precedents that have been overruled, that
exception applies only where “the relevant court of last resort
[has] undercut the theory or reasoning underlying the prior
circuit precedent in such a way that the cases are clearly
irreconcilable.” Ibid. Campbell-Ewald argues that Pitts and
Diaz are clearly irreconcilable with the Supreme Court’s
recent decision in Genesis Healthcare Corp. v. Symczyk, —
8 GOMEZ V. CAMPBELL-EWALD CO.
U.S. —, 133 S. Ct. 1523 (2013). Campbell-Ewald overstates
the relevance of that case, which involved a collective action
brought pursuant to § 16(b) of the Fair Labor Standards Act.
Id. at 1526–27. The defendant argued that the case was
mooted by the plaintiff’s rejection of a settlement offer of
complete relief. Id. at 1528. The Supreme Court ultimately
agreed, first accepting the lower court’s conclusion that the
personal claim was moot, and then holding that the named
plaintiff had “no personal interest in representing putative,
unnamed claimants, nor any other continuing interest that
would preserve her suit from mootness.” Id. at 1532.
Campbell-Ewald correctly observes that Genesis
undermined some of the reasoning employed in Pitts and
Diaz. For example, the Pitts opinion referred to the risk that
a defendant might “pick off” named plaintiffs in order to
evade class litigation. 653 F.3d at 1091 (quoting Weiss v.
Regal Collections, 385 F.3d 337, 344 (3d Cir. 2004)). The
Genesis Court distanced itself from such reasoning, pointing
out that the argument had only been used once by the high
Court, and only “in dicta.” 133 S. Ct. at 1532 (referring to
Deposit Guar. Nat’l Bank, Jackson, Miss. v. Roper, 445 U.S.
326, 339 (1980)). Nevertheless, courts have universally
concluded that the Genesis discussion does not apply to class
actions.2 In fact, Genesis itself emphasizes that “Rule 23
2
At least ten courts had expressly stated that the Genesis analysis does
not bind courts with respect to class action claims. E.g., Epstein v.
JPMorgan Chase & Co., No. 13 Civ. 4744(KPF), 2014 WL 1133567, at
*9 (S.D.N.Y. Mar. 21, 2014) (“The court agrees with Plaintiff that these
[prior class action] cases were not affected by the Supreme Court’s recent
decision in Genesis . . . .”); Knutson v. Schwan’s Home Serv., Inc., No.
3:12-cv-0964-GPC-DHB, 2013 WL 4774763, at *11 (S.D. Cal. Sept. 5,
2013) (concluding that Pitts was not affected by Genesis). We are not
aware of any court that has held otherwise.
GOMEZ V. CAMPBELL-EWALD CO. 9
[class] actions are fundamentally different from collective
actions under the FLSA” and, therefore, the precedents
established for one set of cases are “inapplicable” to the
other. 133 S. Ct. at 1529. Accordingly, because Genesis is
not “clearly irreconcilable” with Pitts or Diaz, this panel
remains bound by circuit precedent, and Campbell-Ewald’s
mootness arguments must be rejected. Miller, 335 F.3d at
900.
III.
Campbell-Ewald’s constitutional challenge is equally
unavailing. The company argues that the statute is
unconstitutional either facially or as applied, but its argument
relies upon a flawed application of First Amendment
principles. Although the district court did not ultimately
reach this issue, the record confirms that the challenge was
properly raised below.
We have already affirmed the constitutionality of this
section of the TCPA. Moser v. FCC, 46 F.3d 970, 973–74
(9th Cir. 1995). The government may impose reasonable
restrictions on the time, place, or manner of protected speech,
provided that the restrictions “are justified without reference
to the content of the restricted speech, that they are narrowly
tailored to serve a significant governmental interest, and that
they leave open ample alternative channels for
communication of the information.” Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for
Creative Non-Violence, 468 U.S. 288, 293 (1984) (other
citations omitted)). In analyzing the section, the Moser Court
focused on the content-neutral statutory language. “Because
nothing in the statute requires the [Federal Communications
Commission] to distinguish between commercial and
10 GOMEZ V. CAMPBELL-EWALD CO.
noncommercial speech, we conclude that the statute should
be analyzed as a content-neutral time, place, and manner
restriction.”3 We then upheld the statute after finding that the
protection of privacy is a significant interest, the restriction
of automated calling is narrowly tailored to further that
interest, and the law allows for “many alternative channels of
communication.” Id. at 974–75.
Campbell-Ewald does not contest our reasoning in Moser.
Instead, Campbell-Ewald argues that the government’s
interest only extends to the protection of residential privacy,
and that therefore the statute is not narrowly tailored to the
extent that it applies to cellular text messages. The argument
fails. First, this Court already applies the TCPA to text
messages. Satterfield, 569 F.3d at 951–52. Second, there is
no evidence that the government’s interest in privacy ends at
home—the fact that the statute reaches fax machines suggests
otherwise. See 47 U.S.C. § 227(b)(1)(C). Third, to whatever
extent the government’s significant interest lies exclusively
in residential privacy, the nature of cell phones renders the
restriction of unsolicited text messaging all the more
necessary to ensure that privacy. After all, it seems safe to
assume that most cellular users have their phones with them
when they are at home. Campbell-Ewald itself notes that in
many households a cell phone is the home phone. In fact,
recent statistics suggest that over 40% of American
households now rely exclusively on wireless telephone
3
46 F.3d at 973. Campbell-Ewald does not argue that the statute is no
longer content neutral insofar as some implementing regulations
distinguish between commercial and noncommercial calls. See 47 C.F.R.
§ 64.1200(a)(2) (2014); cf. Destination Ventures, Ltd. v. FCC, 46 F.3d 54,
56 (9th Cir. 1995) (holding that the TCPA’s treatment of commercial
facsimile transmissions, 42 U.S.C. § 227(b)(1)(C), is a constitutionally
permitted content-based restriction).
GOMEZ V. CAMPBELL-EWALD CO. 11
service.4 As a consequence, prohibiting automated calls to
land lines alone would not adequately safeguard the stipulated
interest in residential privacy. For all these reasons,
Campbell-Ewald’s argument is without merit.
Nor does the government speech doctrine provide
Campbell-Ewald with a meritorious constitutional challenge.
Campbell-Ewald argues that military recruiting messages are
a form of government speech afforded greater protection by
the First Amendment. Campbell-Ewald mischaracterizes the
doctrine. The government speech doctrine is a jurisprudential
theory by which the federal government can regulate its own
communication “without the constraint of viewpoint
neutrality.” Downs v. L.A. Unified Sch. Dist., 228 F.3d 1003,
1017 (9th Cir. 2000), cert. denied, 532 U.S. 994 (2001). For
example, the First Amendment does not require the federal
government to fund messages both for and against abortion.
Cf. Rust v. Sullivan, 500 U.S. 173, 203 (1991) (upholding,
under the government speech doctrine, regulations forbidding
certain publicly funded doctors from endorsing abortion).
Similarly, in this context, the doctrine would preclude
Campbell-Ewald from demanding that the Navy create an
advertising campaign that discourages military participation.
The government speech doctrine is simply immaterial to the
present dispute, in which the plaintiff is not advocating for
viewpoint neutrality, but is instead challenging the regulation
of a particular means of communication.
4
See Karen Kaplan, Still have a land line? 128 million don’t., L.A.
TIMES, July 8, 2014, http://www.latimes.com/science/sciencenow/la-sci-
sn-wireless-only-households-in-america-20140708-story.html.
12 GOMEZ V. CAMPBELL-EWALD CO.
IV.
Campbell-Ewald nevertheless argues that it cannot be
held liable for TCPA violations because it outsourced the
dialing and did not actually make any calls on behalf of its
client. See 47 U.S.C. § 227(b)(1)(A)(iii) (rendering it
unlawful “to make any call” using an automated dialing
system). Gomez, in fact, concedes that a third party
transmitted the disputed messages. Even so, Campbell-
Ewald’s argument is not persuasive.
Although Campbell-Ewald did not send any text
messages, it might be vicariously liable for the messages sent
by Mindmatics. The statute itself is silent as to vicarious
liability. We therefore assume that Congress intended to
incorporate “ordinary tort-related vicarious liability rules.”
Meyer v. Holley, 537 U.S. 280, 285 (2003). Accordingly,
“[a]bsent a clear expression of Congressional intent to apply
another standard, the Court must presume that Congress
intended to apply the traditional standards of vicarious
liability . . . .” Thomas v. Taco Bell Corp., 879 F. Supp. 2d
1079, 1084 (C.D. Cal. 2012), aff’d, — F. App’x —, 2014 WL
2959160 (9th Cir. July 2, 2014) (per curiam). Although we
have never expressly reached this question, several of our
district courts have already concluded that the TCPA imposes
vicarious liability where an agency relationship, as defined by
federal common law, is established between the defendant
and a third-party caller.5
5
Ibid. See also Kristensen v. Credit Payment Servs., No.
2:12–CV–00528-APG, — F. Supp. 2d —, 2014 WL 1256035 (D. Nev.
Mar. 26, 2014); In re Jiffy Lube Int’l Inc., 847 F. Supp. 2d 1253 (S.D. Cal.
2012); Kramer v. Autobytel, Inc., 759 F. Supp. 2d 1165 (N.D. Cal. 2010).
GOMEZ V. CAMPBELL-EWALD CO. 13
This interpretation is consistent with that of the statute’s
implementing agency, which has repeatedly acknowledged
the existence of vicarious liability under the TCPA. The
Federal Communications Commission is expressly imbued
with authority to “prescribe regulations to implement the
requirements” of the TCPA. 47 U.S.C. § 227(b)(2). As early
as 1995, the FCC stated that “[c]alls placed by an agent of the
telemarketer are treated as if the telemarketer itself placed the
call.” In re Rules and Regulations Implementing the TCPA of
1991, 10 FCC Rcd. 12391, 12397 (1995). More recently, the
FCC has clarified that vicarious liability is imposed “under
federal common law principles of agency for violations of
either section 227(b) or section 227(c) that are committed by
third-party telemarketers.” In re Joint Petition Filed by Dish
Network, LLC, 28 FCC Rcd. 6574, 6574 (2013). Because
Congress has not spoken directly to this issue and because the
FCC’s interpretation was included in a fully adjudicated
declaratory ruling, the interpretation must be afforded
Chevron deference. Metrophones Telecomms., Inc. v. Global
Crossing Telecomms, Inc., 423 F.3d 1056, 1065 (9th Cir.
2005) (citing Nat’l Cable & Telecomms. Ass’n v. Brand X
Internet Servs., 545 U.S. 967, 980–85 (2005)) (other citations
omitted), aff’d, 550 U.S. 45 (2007); see also Chevron, U.S.A.,
Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843 (1984)
(“If, however, the court determines Congress has not directly
addressed the precise question at issue, the court does not
simply impose its own construction on the statute, as would
be necessary in the absence of an administrative
interpretation.” (footnote omitted)).
Campbell-Ewald concedes that the FCC already
recognizes vicarious liability in this context, but argues that
vicarious liability only extends to the merchant whose goods
or services are being promoted by the telemarketing
14 GOMEZ V. CAMPBELL-EWALD CO.
campaign. Yet the statutory language suggests otherwise, as
§ 227(b) simply imposes liability upon “any person”—not
“any merchant.” See Ali v. Fed. Bureau of Prisons, 552 U.S.
214, 221 (2008) (interpreting the use of “any” as “all-
encompassing”); 47 C.F.R. § 64.1200 (interpreting the phrase
“any person” to reach individuals and entities). And although
the FCC’s 2013 ruling may emphasize vicarious liability on
the part of merchants, the FCC has never stated that vicarious
liability is only applicable to these entities.6 Indeed, such a
construction would contradict “ordinary” rules of vicarious
liability, Meyer, 537 U.S. at 285, which require courts to
consider the interaction between the parties rather than their
respective identities. See RESTATEMENT (THIRD) OF AGENCY
(2006) §§ 2.01, 2.03, 4.01 (explaining that agency may be
established by express authorization, implicit authorization,
or ratification).
Given Campbell-Ewald’s concession that a merchant can
be held liable for outsourced telemarketing, it is unclear why
a third-party marketing consultant shouldn’t be subject to that
same liability. As a matter of policy it seems more important
to subject the consultant to the consequences of TCPA
infraction. After all, a merchant presumably hires a
consultant in part due to its expertise in marketing norms. It
6
Dish Network, 28 FCC Rcd. at 6574. The FCC uses the word “seller,”
which Campbell-Ewald construes as the merchant whose goods or
services are featured in the telemarketing campaign. The FCC actually
defines seller as an “entity on whose behalf a telephone call or message
is initiated for the purpose of encouraging the purchase or rental of, or
investment in, property, goods, or services.” See 47 C.F.R
§ 64.1200(f)(9). We need not determine whether Campbell-Ewald
constitutes a seller under this definition, as we conclude that vicarious
liability turns on the satisfaction of relevant standards of agency,
irrespective of a defendant’s nominal designation.
GOMEZ V. CAMPBELL-EWALD CO. 15
makes little sense to hold the merchant vicariously liable for
a campaign he entrusts to an advertising professional, unless
that professional is equally accountable for any resulting
TCPA violation. In fact, Campbell-Ewald identifies no case
in which a defendant was exempt from liability due to the
outsourced transmission of the prohibited calls.
Moreover, our own precedent belies any argument that
liability is not possible. In our seminal case regarding text
messages and the TCPA, we allowed a case to proceed
against an analogous marketing consultant who was not
“responsible for the actual transmission of the text messages.”
See Satterfield, 569 F.3d at 951. In Satterfield, a publisher
had instructed a marketing consultant to create a text message
campaign advertising a new Stephen King novel. Id. at 949.
The consultant in turn outsourced the recipient selection and
message transmission to two other subcontractors. Id. A
recipient sued both the publisher and the marketing consultant
for alleged violations of the TCPA. Id. at 950. The district
court entered summary judgment in favor of both defendants,
holding that the cellular user had consented to receive
advertisements when it signed its cellular service contract.
Id. We ultimately reversed and remanded the case, holding
(inter alia) that the cellular service agreement did not
constitute “express consent” to receive the advertisement in
dispute. Id. at 955. So although we did not explain the basis
of the defendants’ potential liability, we implicitly
acknowledged the existence of that basis. The present case
affords an opportunity to clarify that a defendant may be held
vicariously liable for TCPA violations where the plaintiff
establishes an agency relationship, as defined by federal
common law, between the defendant and a third-party caller.
16 GOMEZ V. CAMPBELL-EWALD CO.
Before moving on, we should note that Gomez asks us to
endorse another potential source of liability by holding that
direct liability applies where a third party is “closely
involved” in the placing of the calls. Because the facts are
not yet developed, the present case does not require such a
determination. We therefore leave that question for another
day. See United States v. Manning, 527 F.3d 828, 837 n.8
(9th Cir. 2008) (“[W]e simply express no view on issues
unnecessary to this [decision].” (citation omitted)).
V.
Finally, we turn to the legal theory underlying the district
court’s decision. The court entered summary judgment after
concluding that Campbell-Ewald is exempt from liability
under Yearsley, 309 U.S. 18. Gomez contends that Yearsley
is outdated and inapposite, and that the district court should
have applied the standard articulated in Boyle v. United
Technologies Corp., 487 U.S. 500 (1988). The availability of
these defenses is a question of law that we review de novo.
In re Hanford Nuclear Reservation Litig., 534 F.3d 986, 1000
(9th Cir. 2008).
After reviewing the relevant law, we agree with Gomez
that Yearsley is not applicable. Yearsley established a narrow
rule regarding claims arising out of property damage caused
by public works projects. The dispute involved erosion
caused by efforts to render the Missouri River more
navigable. Yearsley, 309 U.S. at 19. The Court reasoned that
if—as alleged—the contractor’s work was in accordance with
express Congressional directive and resulted in an
unconstitutional taking of property, “the Government has
impliedly promised to compensate the plaintiffs and has
afforded a remedy for its recovery by a suit in the Court of
GOMEZ V. CAMPBELL-EWALD CO. 17
Claims.” Id. at 21–22 (citing 28 U.S.C. § 250 (1940)) (other
citations omitted). As a consequence, there was an adequate
remedy available and no need for action against the private
contractor. Id. at 22.
It seems clear that the reasoning employed by the
Yearsley Court is not relevant here. Gomez’s claims do not
implicate a constitutional “promise to compensate” injured
plaintiffs such that an alternate remedy exists. Nor does the
case belong in some other venue. Cf. Myers v. United States,
323 F.2d 580, 583 (9th Cir. 1963) (remanding under Yearsley
for transfer to Court of Claims). Instead, Congress has
expressly created a federal cause of action affording
individuals like Gomez standing to seek compensation for
violations of the TCPA. In the seventy-year history of the
Yearsley doctrine, it has apparently never been invoked to
preclude litigation of a dispute like the one before us. This
Court, in particular, has rarely allowed use of the defense, and
only in the context of property damage resulting from public
works projects.
In its brief discussion, the district court did not explain its
decision to apply Yearsley to the facts and issues at bar. The
cases cited by the court do not support such an interpretation.7
At oral argument, we asked Campbell-Ewald to name any
authority that might justify the application of Yearsley to the
facts of this case. Campbell-Ewald responded by pointing to
a recent Fifth Circuit decision dismissing a class action under
7
See Ackerson v. Bean Dredging LLC, 589 F.3d 196, 204–07 (5th Cir.
2009) (applying Yearsley in traditional public works context); Butters v.
Vance Int’l Inc., 225 F.3d 462, 466 (4th Cir. 2000) (adjudicating immunity
under the Foreign Sovereign Immunity Act); Myers, 323 F.2d at 583(applying Yearsley to property loss resulting from highway construction).
18 GOMEZ V. CAMPBELL-EWALD CO.
Yearsley. See Ackerson, 589 F.3d 196. Yet that case—like
Yearsley itself—involved allegations of property damage
resulting from dredging work undertaken to improve the
nation’s waterways. Id. at 202–03 (listing allegations that the
United States and its contractors had irreparably damaged
Louisiana’s coastline and wetlands in the 1960s, ultimately
contributing to the widespread loss of property during
Hurricane Katrina). So while the Fifth Circuit’s decision may
rebut Gomez’s argument that Yearsley is stale precedent, it
does not warrant application of the doctrine to the present
dispute.
Nor does the Boyle pre-emption doctrine provide
Campbell-Ewald with a relevant defense. The doctrine
precludes state claims where the imposition of liability would
undermine or frustrate federal interests. See Nielsen v.
George Diamond Vogel Paint Co., 892 F.2d 1450, 1454 (9th
Cir. 1990) (explaining that the Boyle standard is used to
determine when “federal law should displace state law”).
Boyle involved a wrongful death action brought under
Virginia law against a government contractor that had
supplied a helicopter to the United States military. See
487 U.S. at 502. After a jury returned a verdict in favor of
the plaintiffs, the Fourth Circuit reversed, holding that
liability was precluded in part by the federal interest inherent
in military decisions. Id. at 503, 510. The Supreme Court
agreed, explaining that when “an area of uniquely federal
interest” is implicated by a federal purchase, state law is
displaced where “a significant conflict exists between an
identifiable federal policy or interest and the operation of
state law, or the application of state law would frustrate
specific objectives of federal legislation . . . .” Id. at 507(internal brackets, quotation marks, and citations omitted).
The Court then remanded after establishing a rule by which
GOMEZ V. CAMPBELL-EWALD CO. 19
courts should determine whether a specific contractor is
acting pursuant to a military contract such that the defense is
available. Id. at 512.
Although Boyle in effect created a defense for some
government contractors, it is fundamentally a pre-emption
case. The Boyle Court established two related rules: (1) a
general rule whereby state claims may be pre-empted by
federal law, and (2) a specific rule whereby certain military
contractors may be exempt from state tort liability in
furtherance of that pre-emption. 487 U.S. at 507–08, 512. In
arguing that Boyle governs here, Gomez overlooks the pre-
emption predicate, assuming that Boyle represents a general
grant of immunity for government contractors. Yet Boyle
itself includes footnotes emphasizing the displacement
question and indicating that it should not be construed as
broad immunity precedent. Id. at 505 n.1, 508 n.3. We have
already clarified this point, explaining that Boyle “is directed
toward deciding the extent to which federal law should
displace state law with respect to the liability of a military
contractor.” Nielsen, 892 F.2d at 1454. Accordingly,
although Boyle may apply more broadly than to the facts of
that case alone, that broader applicability is rooted in pre-
emption principles and not in any widely available immunity
or defense.
Returning to the present case, Gomez brings a claim
under federal law, so pre-emption is simply not an issue. The
Boyle doctrine is thus rendered inapposite. Even Campbell-
Ewald—notwithstanding a vested interest in maintaining
every possible means of exoneration—admits that a Boyle
defense is not permissible here. Because the defendant does
not assert a Boyle defense, we need not belabor the present
20 GOMEZ V. CAMPBELL-EWALD CO.
discussion—we accept Campbell-Ewald’s concession that
Boyle is not relevant.
Campbell-Ewald contends that a new immunity for
service contractors was espoused by the Supreme Court in
Filarsky v. Delia, — U.S. —, 132 S. Ct. 1657 (2012). Yet the
Court did not establish any new theory, and although the
Filarsky discussion does include a broad reading of the
qualified immunity doctrine, id. at 1667–68, that doctrine is
not implicated by this case. Filarsky involved alleged
constitutional violations brought pursuant to 42 U.S.C.
§ 1983. See id. at 1661. The Supreme Court granted
certiorari to resolve a dispute as to whether one of the
defendants—an attorney contracted by municipal
government—was eligible for the qualified immunity
afforded to his city-employed colleagues. Id. at 1660–61. To
determine the scope of the doctrine, the Court examined “the
‘general principles of tort immunities and defenses’
applicable at common law.” Id. at 1662 (quoting Imbler v.
Pachtman, 424 U.S. 409, 418 (1976)). When the examination
revealed that part-time and lay officials had been granted
immunity throughout the nineteenth century, id. at 1665, the
Court concluded that the contractor was properly entitled to
the same qualified immunity enjoyed by his publicly
employed counterparts.
Filarsky has little to offer Campbell-Ewald. The decision
is applicable only in the context of § 1983 qualified immunity
from personal tort liability. See, e.g., ibid. (“[I]mmunity
under § 1983 should not vary depending on whether an
individual working for the government does so as a full-time
employee, or on some other basis.”). Moreover, the Court
afforded immunity only after tracing two hundred years of
precedent. Here, not only do we lack decades or centuries of
GOMEZ V. CAMPBELL-EWALD CO. 21
common law recognition of the proffered defense, we are
aware of no authority exempting a marketing consultant from
analogous federal tort liability.
Nor are we persuaded that we should establish the novel
immunity asserted by defendants. As the Supreme Court has
recognized, immunity “comes at a great cost.” Westfall v.
Erwin, 484 U.S. 292, 295 (1988), superseded by statute on
other grounds, Pub. L. No. 100-694, 102 Stat. 4563 (1988),
codified at 28 U.S.C. § 2679(d), as recognized in Adams v.
United States, 420 F.3d 1049, 1052 (9th Cir. 2005). Where
immunity lies, “[a]n injured party with an otherwise
meritorious tort claim is denied compensation,” which
“contravenes the basic tenet that individuals be held
accountable for their wrongful conduct.” Westfall, 484 U.S.
at 295. Accordingly, immunity must be extended with the
utmost care. The record contains sufficient evidence that the
text messages were contrary to the Navy’s policy permitting
texts only to persons who had opted in to receive them.
Consequently, we decline the invitation to craft a new
immunity doctrine or extend an existing one.
VI.
As explained herein, Campbell-Ewald’s four arguments
in support of summary judgment each fail. And because the
motion was based on pure questions of law, we were not
briefed on the factual predicates of liability. Campbell-Ewald
has therefore not carried its burden to demonstrate an absence
of material fact or to show that it is otherwise “entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a).
22 GOMEZ V. CAMPBELL-EWALD CO.
Accordingly, we VACATE the district court’s order and
remand the case for further proceedings consistent with this
opinion.
VACATED and REMANDED.
The costs shall be taxed against the Defendant-Appellee.