497 F.Supp.3d 290
N.D. Ohio2020Background
- Plaintiff Roberta Lindenbaum alleged Realgy, LLC placed prerecorded robocalls to her cell phone and, after suit was filed, to her landline without her express written consent, asserting violations of the TCPA (47 U.S.C. § 227).
- The case was stayed pending the Supreme Court’s decision in Barr v. American Ass’n of Political Consultants, Inc. (AAPC), which found the 2015 "government-debt" exception to §227(b)(1)(A)(iii) content-based and unconstitutional but severable.
- After AAPC issued, Realgy moved to dismiss for lack of subject-matter jurisdiction, arguing the TCPA as amended (2015–AAPC final judgment) was facially unconstitutional when the alleged calls were made and thus the court cannot adjudicate liability.
- Lindenbaum argued severance in AAPC should apply retroactively to pending cases (relying on AAPC language and traditional retroactivity principles), so the TCPA should be treated as constitutional for purposes of her claims.
- The court analyzed AAPC (including its plurality footnote), Harper v. Virginia Dept. of Taxation (retroactivity rule), Arthrex (retroactivity of severance), Eberle, and related authority, concluding AAPC did not resolve retroactivity for pending cases and footnote 12 was non-binding dictum.
- The court held severance operates prospectively for pending claims here; because the statute was facially unconstitutional at the time of the alleged calls, the court lacks jurisdiction and granted Realgy’s motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether severance in AAPC applies retroactively to pending cases so the TCPA (without the government-debt exception) governs past alleged robocalls | AAPC’s severance (and retroactivity doctrine) means pending cases should treat the statute as constitutional; footnote 12 supports retroactivity | Severance is a prospective judicial fix; the statute as amended was facially unconstitutional when calls were made (2015–AAPC judgment), so courts lack jurisdiction over claims arising in that period | Severance does not erase past unconstitutionality here; AAPC did not mandate retroactive application to pending cases and footnote 12 is non-binding dictum; dismissal for lack of jurisdiction granted |
| Whether AAPC footnote 12 compels non-liability for government-debt callers during the interim period | Footnote 12 implies those callers should not be penalized and supports retroactivity for pending suits | Footnote 12 is in a plurality opinion endorsed by only three Justices and is non-precedential dictum | Court treated footnote 12 as non-binding dictum and gave it limited persuasive weight; it does not control retroactivity |
| Whether Harper’s rule requiring retroactive application of new federal rules controls here | Harper requires new federal rules to be given full retroactive effect to cases still open on direct review | Severance is a forward-looking judicial fix that does not provide a remedy for past harms; Harper’s rule therefore does not apply to severance in this context | Court followed Arthrex’s reasoning: Harper does not compel retroactive application of severance where the remedy is forward-looking and cannot cure past liability |
| Whether severance can convert an unconstitutional amendment into having been void ab initio (erasing the amendment’s past legal effects) | Cites cases holding unconstitutional amendments are void and therefore should be treated as never valid | Severance does not mean the amendment never had effect; treating severance as void ab initio would raise due process and equal-treatment problems and is unsupported here | Court rejected the void-ab initio argument for this context and held the amendment’s interim existence matters for jurisdictional analysis |
Key Cases Cited
- Barr v. American Ass’n of Political Consultants, Inc., 140 S. Ct. 2335 (Sup. Ct. 2020) (held the 2015 government-debt exception content-based and unconstitutional, severed the exception, and addressed but did not definitively resolve retroactivity for pending cases)
- Harper v. Virginia Dep’t of Taxation, 509 U.S. 86 (Sup. Ct. 1993) (articulated rule that new federal rules generally apply retroactively to cases open on direct review)
- Seila Law LLC v. Consumer Fin. Protection Bureau, 140 S. Ct. 2183 (Sup. Ct. 2020) (discussed severance of unconstitutional statutory provisions in separation-of-powers context)
- Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019) (concurrence reasoning that severance is a forward-looking judicial fix and does not necessarily trigger Harper retroactivity)
- Eberle v. People of the State of Michigan, 232 U.S. 700 (Sup. Ct. 1914) (early case on statutory amendments and claims that certain amendments may be void; discussed and distinguished)
- Grayned v. City of Rockford, 408 U.S. 104 (Sup. Ct. 1972) (addresses analyzing the constitutionality of the statute in effect at the time of the challenged speech)
- McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178 (Sup. Ct. 1936) (jurisdictional burden in federal courts)
- Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244 (6th Cir. 1996) (Rule 12(b)(1) facial-attack standard and survival on any arguable basis in law)