permitting the messages , that they must be official communications and that Bradford is , therefore , protected from liability by sovereign immunity .
The Court disagreed .
In a somewhat shocking determination , the Court found that because Bradford was sued for damages , he was the real party in interest and not the Commonwealth of Pennsylvania , so sovereign immunity does not apply . In reaching that determination , the Court expanded legal doctrine holding individual government actors are not always protected for their official acts :
“[ i ] t does not follow that every time a public official acts under color of state law , the suit must of necessity be one against the official in his or her official capacity …. The fact that Rep . Bradford may have been acting within the scope of his role as a state legislator when he made the calls does not make this an official capacity suit …. any adverse judgment against Rep . Bradford would not bind the Commonwealth .”
Get it ?
Because Perrong sued Bradford personally and not the government , the suit is not defeated by sovereign immunity .
If that feels outlandishly oversimplified , it ’ s because it is .
Plainly , government officials acting on behalf of the government are not always subject to individual suit merely because they are sued individually , but that seems to be the implication of the ruling . ( And ironically — but perhaps intentionally — such a legal doctrine would absolutely destroy Trump ’ s recent efforts to expand his own immunity for official acts elsewhere . . . and I wonder if that ’ s what ’ s really lurking here .)
After deriving the “ individual sued , not government sued , so suit goes on ” approach , the Court analyzed whether any form of qualified immunity might , nonetheless , prevent the suit .
First , the Court determined qualified immunity is a defense available under the TCPA since such a defense is presumptively available in any federal suit unless a carve out applies in the statute — and none exists in the TCPA .
However , the court easily determined no qualified immunity existed for Bradford because the TCPA provision he allegedly violated is clear — thou shalt not use a prerecorded voice call to contact a cell phone .
Of course , the issue is not at all clear because the FCC has clearly found communications by the government are not subject to the TCPA . And since the messages at issue were seemingly government communications , Bradford could not possibly be liable for them . Hence the clarity of the application of the law to Bradford was far from established .
It doesn ’ t look like that argument was made , or at least it wasn ’ t addressed by the Court . Instead , the analysis focused on whether the TCPA ’ s statutory principles were clear enough , and the court found that they were .
In the end , the Court concluded Bradford can be held individually liable for the calls his office made , and the TCPAWorld is rocked anew .
As massive a ruling as this is , there are two rather big holes in the analysis that may unravel it on appeal or in future cases :
1 . As just mentioned , qualified immunity plainly exists here because the application of the TCPA to seemingly governmental messages such as those at issue in Perrong is uncertain to say the least . This is true because the FCC has specifically held such messages are not subject to the TCPA ; and
2 . Bradford ’ s defense team seems to have missed a massive issue — Who made the calls to begin with ? They appear to have conceded he made the calls for purposes of the MSJ (“ There doesn ’ t seem to be a dispute , at least for purposes of this motion , that Rep . Bradford caused the House Communications Office to make the calls at issue in this case .”). That feels like a big miss . I highly doubt Bradford personally instructed anyone to make the calls . And , zooming out , I think the argument can be safely made that the Commonwealth of Pennsylvania made the calls , not the individual that sent the proposal to the House Communications Office . I think either of those arguments could have landed and resulted in a win here . But neither was made .
So , at bottom , Perrong may be read as broadly as to hold a public official is always liable for official calls made by their office . Or , as narrowly as , a public official is only liable for official calls made by their office when their lawyers don ’ t properly assert the calls were actually made by staffers and / or the government they are serving .
So it remains to be seen whether this Perrong case is as earth-shattering as it initially appears or just another reminder that bad lawyering makes bad results . ( Again , I ’ m not saying there was bad lawyering here . It ’ s not clear to me , and I didn ’ t go back and read all the briefs to find out . I am focused solely on the narrow issues — too narrow , in my view — addressed in the ruling itself .)
We ’ ll keep a very close eye on this .
And those of you in the communications wing of the government or the political parties or the communications platforms that serve them : now would be a really good time to grab your virtual tickets to the Law Conference of Champions — the definitive event discussing legal issues related to the TCPA and outreach .
GET YOUR TICKETS TODAY !
TROUTMANAMIN . COM • 21