               Case: 17-14077       Date Filed: 08/28/2019      Page: 1 of 22


                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT



                                        No. 17-14077



                          D.C. Docket No. 0:16-cv-62480-DPG

JOHN SALCEDO,
individually and on behalf of others similarly situated,

                                                                         Plaintiff - Appellee,

                                            versus

ALEX HANNA,
an individual,
THE LAW OFFICES OF ALEX HANNA, P.A.,
a Florida Professional Association,

                                                                   Defendants - Appellants.



                      Appeal from the United States District Court
                          for the Southern District of Florida



                                     (August 28, 2019)

Before JILL PRYOR and BRANCH, Circuit Judges, and REEVES, * District
Judge.

*
  Honorable Danny C. Reeves, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
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BRANCH, Circuit Judge:

       Is receiving a single unsolicited text message, sent in violation of a federal

statute, a concrete injury in fact that establishes standing to sue in federal court? To

answer that question, we have examined the statute, our precedent, and—following

the Supreme Court’s guidance—history and the judgment of Congress, and we

conclude that the allegations in this suit do not establish standing.

                                     I. BACKGROUND

       At 9:56 a.m. on August 12, 2016, John Salcedo, a former client of Florida

attorney Alex Hanna and his law firm, 1 received a multimedia text message from

Hanna offering a ten percent discount on his services.

       Salcedo filed suit in the district court as the representative of a putative class

of former Hanna clients who received unsolicited text messages from Hanna in the

past four years, alleging violations of the Telephone Consumer Protection Act of

1991 (“TCPA”), 47 U.S.C. § 227(b)(1)(A)(iii).2 He sought, among other relief,

statutory damages of $500 per text message and treble damages of $1,500 per text



1
  For simplicity, and without implying any view as to Mr. Hanna’s possible personal liability,
throughout this opinion we will refer to both defendants—Mr. Hanna and his law firm—
collectively as “Hanna.”
2
  “It shall be unlawful for any person within the United States . . . 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 . . . to any
telephone number assigned to a . . . cellular telephone service . . . .” 47 U.S.C.
§ 227(b)(1)(A)(iii).
                                                  2
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message sent willfully or knowingly. See 47 U.S.C. § 227(b)(3).

      Hanna moved to dismiss the complaint for lack of standing, arguing in the

alternative that it should be dismissed as to Mr. Hanna for failure to state a claim

against him and that certain parts of the complaint should be stricken. The district

court disagreed, finding in relevant part that Salcedo had standing under Mohamed

v. Off Lease Only, Inc., No. 15-23352-Civ-COOKE/TORRES, 2017 WL 1080342

(S.D. Fla. Mar. 22, 2017). However, finding that its order “involves a controlling

question of law as to which there is a substantial ground for difference of opinion,”

the court allowed Salcedo to pursue an interlocutory appeal and stayed its

proceedings pending appeal. A panel of our Court granted Hanna’s petition for

permission to appeal under 28 U.S.C. § 1292(b). We now consider his appeal.

                          II. STANDARD OF REVIEW

      “We review standing determinations de novo.” Bochese v. Town of Ponce

Inlet, 405 F.3d 964, 975 (11th Cir. 2005).

                                III. DISCUSSION

      Our analysis proceeds as follows. We first introduce the TCPA, the statute

under which Salcedo has filed suit. Next, we discuss the standing requirements of

Article III of the Constitution, which help to define our limited power to resolve

only cases or controversies. We then turn to Salcedo’s particular allegations of

harm and analyze them in view of our Circuit precedent, history, and the judgment


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of Congress.

                A. The Telephone Consumer Privacy Act of 1991

      Because it found that “residential telephone subscribers consider automated

or prerecorded telephone calls . . . to be a nuisance and an invasion of privacy,”

Telephone Consumer Protection Act of 1991, S. 1462, 102d Cong., Pub. L. No.

102-243, § 2, ¶ 10 (1991), in 1991 Congress enacted the TCPA to restrict interstate

telemarketing. The TCPA thus prohibits using automatic telephone dialing systems

to call residential or cellular telephone lines without the consent of the called party.

47 U.S.C. § 227(b)(1)(A)(iii), (B). It also prohibits sending unsolicited

advertisements via facsimile machine. Id. § 227(b)(1)(C). It authorizes the Federal

Communications Commission (“FCC”) to enact implementing regulations. Id.

§ 227(b)(2). Finally for our purposes, the TCPA creates a private right of action

whereby a person or entity may seek compensatory or injunctive relief against

violators. Id. § 227(b)(3).

      There have been two relevant updates to the TCPA and its enforcement

regime since 1991. First, in October 1992, Congress amended the TCPA to allow

the FCC to exempt free-to-receive cellular calls if it so chooses. Id. § 227(b)(2)(C).

The FCC has not done so. Second, the statute has been silent as to text messaging,

for that medium did not exist in 1991. But under its TCPA rulemaking authority,

the FCC has applied the statute’s regulations of voice calls to text messages. 30


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FCC Rcd. 7961, 7964 n.3, 7978–79, 8016–22 (2015); 18 FCC Rcd. 14014, 14115

(2003); see also Campbell–Ewald Co. v. Gomez, 136 S. Ct. 663, 667 (2016) (“A

text message to a cellular telephone, it is undisputed, qualifies as a ‘call’ within the

compass of § 227(b)(1)(A)(iii).”). Thus, Salcedo’s complaint facially appears to

state a cause of action under the TCPA as interpreted by the FCC.

                               B. Article III Standing

      Not every right created by Congress or defined by an executive agency is

automatically enforceable in the federal courts. Our tripartite system of

government recognizes that “there is no liberty if the power of judging be not

separated from the legislative and executive powers.” The Federalist No. 78, at 465

(Alexander Hamilton) (Clinton Rossiter ed. 1961). To protect this separation of

powers, we must assure ourselves that our exercise of jurisdiction falls within the

Constitution’s grant of judicial power.

      Article III vests the judicial power in the federal courts and extends that

power to “Cases” and “Controversies.” U.S. Const. art. III, §§ 1–2. One tool for

determining that the matters before us are truly cases or controversies, as

understood by Article III, is the doctrine of standing. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992). “The law of Article III standing . . . serves to

prevent the judicial process from being used to usurp the powers of the political

branches.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). Even when


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those political branches appear to have granted us jurisdiction by statute and rule,

we are still obliged to examine whether jurisdiction exists under the Constitution.

       As the Supreme Court has explained, the “irreducible constitutional

minimum” to establish Article III standing requires three elements. Lujan, 504 U.S.

at 560. “The plaintiff must have (1) suffered an injury in fact, (2) that is fairly

traceable to the challenged conduct of the defendant, and (3) that is likely to be

redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540,

1547 (2016) (citing Lujan, 504 U.S. at 560–61). It is the first element—the

“foremost” of the three, id. (quoting Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 103 (1998))—that is disputed in this appeal and to which we now turn.

       To establish standing, an injury in fact must be concrete.3 Id. at 1548. “A

‘concrete’ injury must be ‘de facto’; that is, it must actually exist,” as opposed to

being hypothetical or speculative. Id. A concrete injury need be only an

“identifiable trifle.” United States v. Students Challenging Regulatory Agency

Procedures (SCRAP), 412 U.S. 669, 689 n.14 (1973) (noting that sufficiently

concrete injuries have included a fraction of a vote, a $5 fine and costs, and a $1.50

poll tax). But sometimes plaintiffs allege intangible injuries that we cannot so



3
  An injury in fact must also be particularized, that is, affecting the plaintiff “in a personal and
individual way.” Spokeo, 136 S. Ct at 1548 (quoting Lujan, 504 U.S. at 560 n.1). It is undisputed
that Salcedo’s allegations are of a personal and individual nature. As the would-be class
representative, Salcedo must establish his own personal, concrete injury notwithstanding
whatever injuries may have been suffered by the other members of the class. Id. at 1547 n.6.
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easily identify.

       When the concreteness of an alleged injury is difficult to recognize, we look

to “history and the judgment of Congress” for guidance. Spokeo, 136 S. Ct. at

1549. But an act of Congress that creates a statutory right and a private right of

action to sue does not automatically create standing; “Article III standing requires

a concrete injury even in the context of a statutory violation.” Id. 4 “[T]he

requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be

removed by statute.” Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009).

                              C. Eleventh Circuit Precedent

       Because Salcedo bears the burden of establishing federal jurisdiction, Lujan,

504 U.S. at 561, we look to the substance of his amended complaint’s allegations

to determine if he has standing due to a concrete injury. Salcedo alleged that

receiving the one text message “caused Plaintiff to waste his time answering or

otherwise addressing the message. While doing so, both Plaintiff and his cellular



4
  Recognizing that “a bare procedural violation” of a statute “may result in no harm,” Spokeo
reaffirms the proposition that we must always look for concrete harm when assessing Article III
standing. See 136 S. Ct. at 1550. In some contexts this will mean identifying purely speculative
“harm” that never actually materializes as failing to allege an injury in fact. See, e.g., Nicklaw v.
CitiMortgage, Inc., 839 F.3d 998, 1003 (11th Cir. 2016), reh’g en banc denied, 855 F.3d 1265
(11th Cir. 2017) (holding that a violation of the mortgage satisfaction reporting requirements of a
state law resulted in no concrete harm to the plaintiff).
        But we should not ignore the Supreme Court’s guidance in Spokeo in cases that purport
to allege more than merely technical statutory violations. This appeal presents a close question in
which we must determine whether Salcedo’s allegations are real and concrete as opposed to
figmentary. Spokeo’s instruction to consider history and the judgment of Congress, id. at 1549,
helpfully guides us in our conclusion that Salcedo has not alleged a concrete injury in fact.
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phone were unavailable for otherwise legitimate pursuits.” He further alleged that

the message also “resulted in an invasion of Plaintiff’s privacy and right to enjoy

the full utility of his cellular device.”

       These allegations are qualitatively different from those in our Circuit

precedent that have been successful in establishing standing to sue over a single

violation of the TCPA. In Palm Beach Golf Center–Boca, Inc. v. John G. Sarris,

D.D.S., P.A., 781 F.3d 1245, 1252 (11th Cir. 2015), we found standing for a

plaintiff who alleged that receiving a junk fax in violation of the TCPA harmed

him because, during the minute or so that it took to receive and process the fax

message, his fax machine was unavailable for receiving legitimate business

messages. Accord Florence Endocrine Clinic, PLLC v. Arriva Med., LLC, 858

F.3d 1362, 1366 (11th Cir. 2017) (considering also “the cost of printing the

unsolicited fax”). To the extent we have relied on tangible costs such as the

consumption of paper and ink or toner to establish injury in fact, Salcedo cannot so

rely, since receiving a text message uses no paper, ink, or toner. His complaint

alleges generally that some text messages cause recipients to incur costs to their

wireless service providers, but he has not alleged specifically that Hanna’s text cost

him any money.

       Salcedo’s allegations of intangible costs, on the other hand, bear some facial

similarities to those in Palm Beach Golf. But they differ in kind, rendering Palm


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Beach Golf inapplicable. At oral argument, Salcedo asserted that receiving

Hanna’s message was comparable to using a minute of fax machine time, but his

complaint does not so allege. Rather, it alleges time wasted only generally. In the

absence of a specific time allegation, we decline to assume an equivalence to the

facts of Palm Beach Golf when receiving a fax message is qualitatively different

from receiving a text message. A fax message consumes the receiving device

entirely, while a text message consumes the receiving device not at all. A cell

phone user can continue to use all of the device’s functions, including receiving

other messages, while it is receiving a text message.

      Salcedo also makes an allegation about unavailability, but that too is distinct

from Palm Beach Golf. There, we were concerned about the fully realized

opportunity cost of being unable to receive other faxes for a full minute. By

contrast, Salcedo has alleged no particular loss of opportunity. A fax machine’s

inability to receive another message while processing a junk fax has no analogy

with cell phones and text messaging. Salcedo’s assertion that he and his phone

were unavailable appears only to recite language we used in Palm Beach Golf. Cf.

781 F.3d at 1252 (quoting H.R. Rep. 102-317, at 10 (1991)). We are entitled to

look past this conclusory recitation to the actual factual substance of Salcedo’s

allegations. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“we are not bound to

accept as true a legal conclusion couched as a factual allegation”).


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       Thus, Circuit precedent in Palm Beach Golf does not dictate the outcome of

this appeal. And, for reasons we will discuss below, we find our sister circuit’s

decision involving this precise issue unpersuasive. See Van Patten v. Vertical

Fitness Group, LLC, 847 F.3d 1037, 1043 (9th Cir. 2017) (holding that the receipt

of two unsolicited text messages constituted an injury in fact).5 In the absence of

controlling authority, we turn our analysis to the framework outlined by the

Supreme Court in Spokeo. We look to history and the judgment of Congress to see

whether they support treating Salcedo’s allegations as a concrete injury in fact. Our

examination reveals little support for so doing.

                               D. The Judgment of Congress

       We first note what Congress has said in the TCPA’s provisions and findings 6

about harms from telemarketing via text message generally: nothing. The TCPA is

completely silent on the subject of unsolicited text messages. Of course, text

messaging in its current form did not exist in 1991 when the TCPA was enacted,


5
  Nor are we bound by the Supreme Court’s holding in another TCPA text-messaging case that
the case was not mooted by an unaccepted settlement offer. See Campbell–Ewald, 136 S. Ct. at
670. The Court did not reach the unraised question of whether the plaintiff had alleged an injury
in fact, in part because the defendant apparently never asserted that the plaintiff had failed to do
so. See id. at 667–68. “[W]e are not bound by a prior decision’s sub silentio treatment of a
jurisdictional question.” Okongwu v. Reno, 229 F.3d 1327, 1330 (11th Cir. 2000).
6
  Context matters. We are not suggesting that legislative history should play a role in statutory
interpretation. Salcedo’s allegation is undisputedly a violation of the statute as interpreted by the
FCC. Nonetheless, because the Supreme Court has instructed us to consider “the judgment of
Congress” in assessing Article III standing, we will consider the congressionally enacted
findings as informative of that judgment. See Spokeo, 136 S. Ct. at 1549; cf. Palm Beach Golf,
781 F.3d at 1252 (citing House committee report).
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but Congress has amended the statute several times since then without adding text

messaging to the categories of restricted telemarketing.7 As we have mentioned, it

is only through the rulemaking authority of the FCC that the voice call provisions

of the TCPA have been extended to text messages. At most, we could take

Congress’s silence as tacit approval of that agency action.

       On the other hand, Congress’s legislative findings about telemarketing

suggest that the receipt of a single text message is qualitatively different from the

kinds of things Congress was concerned about when it enacted the TCPA. In

particular, the findings in the TCPA show a concern for privacy within the sanctity

of the home that do not necessarily apply to text messaging. “Unrestricted

telemarketing . . . can be an intrusive invasion of privacy,” and “[m]any consumers

are outraged over the proliferation of intrusive, nuisance calls to their homes from

telemarketers,” Congress found. Pub. L. No. 102-243, § 2, ¶¶ 5, 6. By contrast, cell

phones are often taken outside of the home and often have their ringers silenced,

presenting less potential for nuisance and home intrusion. It is thus not surprising

that, after Congress found that the FCC “should have the flexibility to design

different rules for those types of automated or prerecorded calls that it finds are not




7
 Following recent amendments, however, the TCPA will expressly include text messaging in its
prohibitions on transmitting false caller ID information. Consolidated Appropriations Act, 2018,
H.R. 1625, 115th Cong., Pub. L. No. 115-141, div. P, § 503(a) (2018) (to be codified at 47
U.S.C. § 227(e)).
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considered a nuisance or invasion of privacy,” id. ¶ 13, within a year it instructed

the FCC that it may exempt “calls to a telephone number assigned to a cellular

telephone service that are not charged to the called party,” 47 U.S.C.

§ 227(b)(2)(C).

       On text messaging generally, then, the judgment of Congress is ambivalent

at best; its privacy and nuisance concerns about residential telemarketing are less

clearly applicable to text messaging. Any possible deference to the FCC’s

interpretation of the TCPA 8—the source of its application to text messaging—is

not obviously relevant where the Supreme Court has specifically instructed us to

consider the judgment of Congress. And congressional silence is a poor basis for

extending federal jurisdiction to new types of harm. We take seriously the silence

of that political branch best positioned to assess and articulate new harms from

emerging technologies. See Spokeo, 136 S. Ct. at 1549 (citing Lujan, 504 U.S. at

578)). With this point of caution in mind, we now turn to the judgment of Congress

about the specific harms that Salcedo has alleged he suffered when he received

Hanna’s message.



8
 In this case, we need not reach the issue of whether the agency’s interpretation of the statute is
entitled to any deference. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,
843 (1984) (requiring deference to agency’s interpretation of silent or ambiguous statute);
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) (allowing court to determine level of
deference in proportion to agency’s demonstration of persuasive reasoning); cf., e.g., Josendis v.
Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1320 (11th Cir. 2011) (rejecting Chevron
deference where the statutory language was clear and unambiguous).
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      We consider the judgment of Congress when assessing standing because

“Congress is well positioned to identify intangible harms that meet minimum

Article III requirements.” Id. As we have mentioned, Congress was concerned

about “intrusive invasion[s] of privacy” into the home when it enacted the TCPA.

Pub. L. No. 102-243, § 2, ¶ 5. Salcedo argues that the particular privacy interest

Congress has identified is “the freedom from unwanted robocalls,” but that

observation is too general. As we have noted, a single unwelcome text message

will not always involve an intrusion into the privacy of the home in the same way

that a voice call to a residential line necessarily does. Certainly, Salcedo has not

alleged that he was in his home when he received Hanna’s message. As we have

also noted, the 1992 amendment allowing the FCC to exempt free-to-receive calls

to cell phones, 47 U.S.C. § 227(b)(2)(C), suggests less congressional concern

about calls to cell phones. And by nature of their portability and their ability to be

silenced, cell phone calls may involve less of an intrusion than calls to a home

phone. We realize that Congress in 1991 could not have foreseen the explosion in

personal cell phone use, the popularity of text messaging, and the near-extinction

of the residential telephone line. But Spokeo instructs us to consider the judgment

of Congress about the alleged harm, not to imagine what Congress might say about

a harm it has not actually addressed.

      We note that our sister circuit has reached the opposite conclusion in this


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context. See Van Patten, 847 F.3d at 1043. The Ninth Circuit quoted many of these

same findings, further noting Congress’s purpose of “protect[ing] consumers from

the unwanted intrusion and nuisance of unsolicited telemarketing phone calls and

fax advertisements.” See Pub. L. No. 102-243, § 2, ¶ 12. But that court stopped

short of examining whether isolated text messages not received at home come

within that judgment of Congress. Instead, it concluded that “Congress identified

unsolicited contact as a concrete harm.” Van Patten, 847 F.3d at 1043. We disagree

with this broad overgeneralization of the judgment of Congress and have focused

our own analysis on text messaging specifically.

       Other stated concerns behind the TCPA are also inapposite to Salcedo’s

allegations. The congressional committee found telemarketing by fax problematic

in part because “it occupies the recipient’s facsimile machine so that it is

unavailable for legitimate business messages while processing and printing the

junk fax.” H.R. Rep. 102-317, at 10 (1991), quoted in Palm Beach Golf, 781 F.3d

at 1252. As we have noted, such a concern has little application to the

instantaneous receipt of a text message. The judgment of Congress, then, provides

little support for finding that Salcedo’s allegations state a concrete injury in fact.9




9
  Congress also stated concerns not raised by either party here: concerns for public safety “when
an emergency or medical assistance telephone line is seized,” Pub. L. No. 102-243, § 2, ¶ 5; for
the cost borne by consumers who use technology to avoid unwanted calls, id. ¶ 11; and for
“commercial freedoms of speech and trade” that telemarketers enjoy, id. ¶ 9.
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                                           E. History

       We now turn to history for guidance, because the case or controversy

requirement of Article III “is grounded in historical practice.” Spokeo, 136 S. Ct. at

1549. Thus, “it is instructive to consider whether an alleged intangible harm has a

close relationship to a harm that has traditionally been regarded as providing a

basis for a lawsuit in English or American courts.” Id.

       With respect to his allegations of invasion of privacy, we look to the

generally accepted tort of intrusion upon seclusion,10 which creates liability for

invasions of privacy that would be “highly offensive to a reasonable person.”

Restatement (Second) of Torts § 652B. The requirement that the interference be

“substantial” and “strongly object[ionable]” instructs us that a plaintiff might be

able to establish standing where an intrusion on his privacy is objectively serious

and universally condemnable. See id. cmt. d (no liability for one, two, or three

phone calls; liability “only when the telephone calls are repeated with such

persistence and frequency as to amount to a course of hounding the plaintiff”). By

contrast, Salcedo’s allegations fall short of this degree of harm. We do not see this

type of objectively intense interference where the alleged harm is isolated,




10
   Most of the accepted torts generally known as “invasion of privacy” involve privacy in the
rather specific sense of one’s right to be free from unwanted publicity. See Restatement (Second)
of Torts § 652A. It is only the privacy tort of intrusion upon seclusion, id. § 652B, that bears any
possible relationship to Salcedo’s allegations.
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momentary, and ephemeral.

      The tort of intrusion upon seclusion also requires an intrusion “upon the

solitude or seclusion of another or his private affairs or concerns.” Id. § 652B.

Although Salcedo argues that his cell phone is part of his private affairs, the

Restatement contemplates a different category of intrusion into private affairs,

listing examples including eavesdropping, wiretapping, and looking through one’s

personal documents. See id. cmt. b. Simply sending one text message to a private

cell phone is not closely related to the severe kinds of actively intermeddling

intrusions that the traditional tort contemplates. Salcedo’s reasoning would equate

opening your private mail—a serious intrusion indeed—with mailing you a

postcard.

      With respect to his allegations of nuisance, Salcedo asks us to compare the

traditional torts of trespass and nuisance, but we find them also to be distinct both

in kind and in degree. Trespass requires intentionally “enter[ing] land in the

possession of the other,” id. § 158(a), and private nuisance is “a nontrespassory

invasion of another’s interest in the private use and enjoyment of land,” id. § 821D.

Although, as we have noted, Congress was concerned about intrusions into the

home when it enacted the TCPA, Salcedo has alleged no invasion of any interest in

real property here. Furthermore, even in the context of nuisance to real property, in

Florida, “[m]ere disturbance and annoyance as such do not in themselves


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necessarily give rise to an invasion of a legal right.” A & P Food Stores, Inc. v.

Kornstein, 121 So. 2d 701, 703 (Fla. 3d Dist. Ct. App. 1960). Hanna’s text

message is thus not closely related to these traditional harms because it is not

alleged to have infringed upon Salcedo’s real property, either directly or indirectly.

      Salcedo also asks us to consider the personal property torts of conversion

and trespass to chattel. Conversion is an interference with chattel “which so

seriously interferes with the right of another to control it that the actor may justly

be required to pay the other the full value of the chattel.” Restatement (Second) of

Torts § 222A. Salcedo’s allegations are nowhere near a complete and permanent

dominion over his phone, so recourse to this serious kind of tort is unhelpful. The

same is true for the tort of trespass to chattel, which involves intentionally “using

. . . a chattel in the possession of another.” Id. § 217(b). Traditionally, liability

arises for this kind of trespass only when “the possessor is deprived of the use of

the chattel for a substantial time” or when the trespass harms “the possessor’s

materially valuable interest in the physical condition, quality, or value of the

chattel.” Id. § 218(c) & cmt. e; cf. United States v. Jones, 565 U.S. 400, 426 (2012)

(Alito, J., concurring) (“Trespass to chattels has traditionally required a physical

touching of the property.”). Thus, although Salcedo’s allegations here bear a

passing resemblance to this kind of historical harm, they differ so significantly in

degree as to undermine his position. History shows that Salcedo’s allegation is


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precisely the kind of fleeting infraction upon personal property that tort law has

resisted addressing.

       We again note that our sister circuit has reached the opposite conclusion. See

Van Patten, 847 F.3d at 1043. We decline to adopt its reasoning and instead

embrace more fully the Supreme Court’s instruction to look for a “close

relationship” to a traditionally redressable harm. See Spokeo, 136 S. Ct. at 1549

(citing Vt. Agency of Nat. Res., 529 U.S. 765, 775–77 (2000) (discussing traditional

qui tam law in a case about qui tam relator Article III standing)). The Ninth

Circuit’s one-sentence review of history simply asserted, “Actions to remedy

defendants’ invasions of privacy, intrusion upon seclusion, and nuisance have long

been heard by American courts, and the right of privacy is recognized by most

states.” Van Patten, 847 F.3d at 1043. But as we have more thoroughly explained,

an examination of those torts reveals significant differences in the kind and degree

of harm they contemplate providing redress for.

       In sum, we find that history and the judgment of Congress do not support

finding concrete injury in Salcedo’s allegations. 11 Salcedo has not alleged anything


11
   Salcedo urges us to follow the reasoning that allowed us to find standing in Perry v. Cable
News Network, Inc., 854 F.3d 1336, 1340–41 (11th Cir. 2017). The facts here do not permit us to
do so. In Perry, we found standing under the Video Privacy Protection Act, 18 U.S.C. § 2710,
for a plaintiff suing over privacy violations involving a mobile video app. Perry held that the
plaintiff’s allegations and the 1980s-era statute involved precisely the same substantive privacy
right. Not so here. As we have discussed, both the judgment of Congress and history here reveal
concerns about intrusions into the privacy of the home and interferences with property that do
not readily transfer to the context of cell phones.
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like enjoying dinner at home with his family and having the domestic peace

shattered by the ringing of the telephone. Nor has he alleged that his cell phone

was searched, dispossessed, or seized for any length of time. Salcedo’s allegations

of a brief, inconsequential annoyance are categorically distinct from those kinds of

real but intangible harms. The chirp, buzz, or blink of a cell phone receiving a

single text message is more akin to walking down a busy sidewalk and having a

flyer briefly waived in one’s face. Annoying, perhaps, but not a basis for invoking

the jurisdiction of the federal courts. All told, we conclude that Salcedo’s

allegations do not state a concrete harm that meets the injury-in-fact requirement of

Article III.

                                F. Quality, Not Quantity

       To be clear, we are not attempting to measure how small or large Salcedo’s

alleged injury is. Article III standing is not a “You must be this tall to ride”

measuring stick. “There is no minimum quantitative limit required to show injury;

rather, the focus is on the qualitative nature of the injury, regardless of how small

the injury may be.” Saladin v. City of Milledgeville, 812 F.2d 687, 691 (11th Cir.

1987). Our assessment today is thus qualitative, not quantitative. We have assessed

how concrete and real the alleged harm is, Spokeo, 136 S. Ct. at 1548, and we have

concluded that it is not the kind of harm that constitutes an injury in fact. Some

harms that are intangible and ephemeral may do so, but Salcedo’s allegations of


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the harm he suffered from receiving a single text message do not.

      To be sure, under our precedent, allegations of wasted time can state a

concrete harm for standing purposes. We have found standing where the harm was,

for example, time wasted traveling to the county registrar’s office, Common

Cause/Ga. v. Billups, 554 F.3d 1340, 1351 (11th Cir. 2009); and correcting credit

reporting errors, Pedro v. Equifax, Inc., 868 F.3d 1275, 1280 (11th Cir. 2017).

These precedents strongly suggest that concrete harm from wasted time requires, at

the very least, more than a few seconds. And on this point the judgment of

Congress sheds a final ray of light. The TCPA instructs the FCC to establish

telemarketing standards that include releasing the called party’s line within five

seconds of a hang-up, 47 U.S.C. § 227(d)(3)(B), demonstrating that, on the margin,

Congress does not view tying up a phone line for five seconds as a serious

intrusion.

      Our responsibility to ensure that plaintiffs allege a real injury in fact requires

us to look closely at their allegations in light of the statute, our precedent, history,

and the judgment of Congress. Such inquiries will, of course, have differing

outcomes depending on those inputs. Compare, e.g., Perry, 854 F.3d at 1340–41

(finding standing based on intangible harm of statutory violation), and Palm Beach

Golf, 781 F.3d at 1252 (same), with Nicklaw v. CitiMortgage, Inc., 839 F.3d 998,

1003 (11th Cir. 2016), reh’g denied, 855 F.3d 1265 (11th Cir. 2017) (en banc)


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(finding no standing because plaintiff alleged “neither a harm nor a material risk of

harm”). We acknowledge that Congress, as a political entity, is well positioned to

assess new harms in light of developments in technology and society, and to

respond to the concerns of the American people about novel encroachments on life,

liberty, and property. See Spokeo, 136 S. Ct. at 1549. The federal courts are not

similarly tasked. We have only the power “to say what the law is.” Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 177 (1803). And when a plaintiff comes to us

without alleging a concrete harm, a real injury that states a case or controversy, we

cannot do even that much.

                                     IV. CONCLUSION

       We REVERSE the decision of the district court that Salcedo has standing to

sue and REMAND with instructions to dismiss without prejudice the amended

complaint.12




12
   Hanna has asked us to instruct the district court to dismiss Salcedo’s amended complaint with
prejudice. But a jurisdictional dismissal is entered without prejudice. Stalley ex rel. United States
v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008). “A dismissal
‘without prejudice’ refers to the fact that the dismissal is not on the merits.” Grayson v. K Mart
Corp., 79 F.3d 1086, 1094 n.7 (11th Cir. 1996). Although refiling may prove futile (Salcedo has
already amended his complaint once in attempt to shore up his allegations), we and the district
court presently lack jurisdiction to make that merits determination.
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JILL PRYOR, concurring in judgment only:

      Plaintiff John Salcedo sued defendants Alex Hanna and the Law Offices of

Alex Hanna, P.A. (together, “Hanna”) under the Telephone Consumer Protection

Act of 1991 (“TCPA”), 47 U.S.C. § 227(b)(1)(A)(iii), after they sent him a single

unwanted text message advertisement. I agree with the majority opinion that we

lack subject matter jurisdiction because Salcedo has no standing to bring a TCPA

claim. I write separately to emphasize my understanding that the majority’s

holding is narrow and the conclusion that Salcedo lacks standing is driven by the

allegations in his complaint that Hanna sent him only one text message. The

majority opinion—appropriately, in my view—leaves unaddressed whether a

plaintiff who alleged that he had received multiple unwanted and unsolicited text

messages may have standing to sue under the TCPA. With this understanding, I

concur in the majority’s judgment.




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