FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE GOMEZ, individually and on

behalf of a class of similarly situated

individuals,

Plaintiff-Appellant,

v.

CAMPBELL-EWALD COMPANY,

Defendant-Appellee.

No. 13-55486

D.C. No.

2:10-cv-02007-

DMG-CW

OPINION

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 CampbellEwald 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 CampbellEwald 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, CampbellEwald 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. CampbellEwald 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.

ThisCourt reviews summaryjudgment 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 CampbellEwald 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.2In 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) (quotingClark 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 adequatelysafeguard 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-scisn-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, CampbellEwald’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 agencyrelationship, 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 “allencompassing”); 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)OFAGENCY

(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-partymarketing 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 (4thCir. 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 preemption 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 preemption 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 CampbellEwald—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.