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Lindenbaum v. Realgy, LLC

Lindenbaum v. Realgy, LLC

United States Court of Appeals for the Sixth Circuit

July 29, 2021, Argued; September 9, 2021, Decided; September 9, 2021, Filed

File Name: 21a0213p.06

No. 20-4252

Opinion

 [*526]   [***2]  JOHN K. BUSH, Circuit Judge. Courts do not rewrite, amend, or strike down statutes. ] We only "say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803). The district court held that a court conducting severability analysis defies that time-honored rule and instead "eliminat[es]" part of a statute. Lindenbaum v. Realgy, LLC, 497 F. Supp. 3d 290, 297 (N.D. Ohio 2020). It does not. We therefore reverse.

In 1991, Congress prohibited almost all robocalls to cell phones and landlines. Barr v. Am. Ass'n of Pol. Consultants, Inc. (AAPC), 140 S. Ct. 2335, 2344, 207 L. Ed. 2d 784 (2020) (plurality opinion); 47 U.S.C. § 227(b)(1)(B). That seemed to change in 2015, when Congress attempted to enact an amendment to those  [*527]  broad prohibitions to allow robocalls if they were made "solely to collect a debt owed to or guaranteed by the United States." 47 U.S.C. § 227(b)(1)(A)(iii), (b)(1)(B).

The amendment, however, was unconstitutional. So held the Supreme Court in AAPC. The Court determined that adding the exemption for government-debt robocalls would cause impermissible content discrimination. AAPC, 140 S. Ct. at 2347 (plurality opinion); [**3]  id. at 2357 (Sotomayor, J., concurring in the judgment); id. at 2363 (Gorsuch, J., concurring in part and dissenting in part). The Court also held that the exception was severable from the rest of the restriction, leaving the general prohibition intact. Id. at 2356 (plurality opinion); id. at 2357 (Sotomayor, J., concurring in the judgment); id. at 2363 (Breyer, J., concurring in part and dissenting in part). During its severability analysis, the three-justice plurality offered a brief footnote musing on the liability of parties who made robocalls between the exception's enactment and the Court's AAPC decision. Id. at 2355 n.12 (plurality opinion). Those justices  [***3]  thought that "no one should be penalized or held liable for making robocalls to collect government debt after the effective date of the 2015 government-debt exception," but that their decision "does not negate the liability of parties who made robocalls covered by the robocall restriction."1 Id.

In late 2019 and early 2020, Roberta Lindenbaum received two robocalls from Realgy, LLC advertising its electricity services. She sued, alleging violations of the robocall restriction. After the Supreme Court decided AAPC, Realgy moved to dismiss the case for lack of subjectmatter jurisdiction. The [**4]  district court granted the motion. It reasoned that severability is a remedy that operates only prospectively, so the robocall restriction was unconstitutional and therefore "void" for the period the exception was on the books. Lindenbaum, 497 F. Supp. 3d at 298-99. Because it was "void," the district court believed, it could not provide a basis for federal-question jurisdiction. Id. at 299. Lindenbaum timely appealed. The United States intervened in support of Lindenbaum to defend its statute.

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13 F.4th 524 *; 2021 U.S. App. LEXIS 27159 **; 2021 FED App. 0213P (6th Cir.) ***

ROBERTA LINDENBAUM, individually and on behalf of all others similarly situated, Plaintiff-Appellant, UNITED STATES OF AMERICA, Intervenor-Appellant, v. REALGY, LLC, a Connecticut limited liability company, dba Realgy Energy Services, Defendant-Appellee.

Subsequent History: US Supreme Court certiorari denied by Realgy v. Lindenbaum, 2022 U.S. LEXIS 1611 (U.S., Mar. 21, 2022)

Prior History:  [**1] Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:19-cv-02862—Patricia A. Gaughan, Chief District Judge.

Lindenbaum v. Realgy, LLC, 497 F. Supp. 3d 290, 2020 U.S. Dist. LEXIS 201572, 2020 WL 6361915 (N.D. Ohio, Oct. 29, 2020)

CORE TERMS

robocalls, plurality opinion, district court, government-debt, retroactively, courts

Governments, Legislation, Interpretation, Courts, Judicial Precedent, Authority to Adjudicate, Civil Procedure, Appeals, Standards of Review, De Novo Review, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Severability, Effect & Operation, Amendments, Constitutional Law, Fundamental Freedoms, Freedom of Speech, Scope, Prospective Operation