On January 3, 2020, in Buchholz v. Meyer Njus Tanick, P.A., No. 18-2261 (6th Cir. 2020), the Sixth Circuit Court of Appeals upheld the district court’s decision dismissing a complaint alleging violations of the Fair Debt Collection Practices Act on the grounds that the plaintiff lacked Article III standing. The Court found the plaintiff’s allegation that he was anxious about being subjected to future litigation could not meet the concreteness requirement necessary to show an injury in fact. The Court also held that, even assuming the debt collector violated the FDCPA by sending two letters suggesting an attorney had reviewed the debts, procedural violation alone could not give rise to a cognizable injury that would confer Article III standing.
This action arose out of two letters Gustave Buchholz received in May 2018 about overdue payments he owed on two accounts with Synchrony Bank. The letters came from Meyer Njus Tanick, PA (MNT), a Minneapolis-based law firm, and appeared on MNT’s letterhead. The letters – each of which referred to a specific account – were signed by an attorney working at MNT. The letters did not threaten legal action. Instead, the letters advised Buchholz that they were communications from a debt collector and that MNT had been retained to collect the referenced debts. Buchholz did not dispute the debts but claimed that the letters made him feel anxious and fear that MNT would sue him if he did not promptly pay.
Buchholz sued MNT, alleging that MNT violated the FDCPA, 15 U.S.C. 1692e, e(3) and e(10), by giving the impression that an attorney had reviewed the accounts and determined that he owed the debts. Specifically, the complaint alleged that Synchrony Bank works with MNT on a regular basis and has a “proportionally large number of accounts that are subjected to collection activities.” As a result, MNT sends a “large number of collection letters to consumers on a daily basis.” And because the lawyer who signed both letters is MNT’s only Michigan-based attorney, the complaint alleged that it was “unlikely” she devoted “much time to Plaintiff’s accounts.” Buchholz alleged further that MNT sends out such a high volume of letters that MNT attorneys could not engage in a meaningful review of the underlying accounts. But, he alleged, the letters appear on law firm letterhead and created the impression that an attorney had reviewed the file and made “the professional considered determination to send the letter.” Receiving the letters, he claimed, made him feel anxious and fear that MNT would sue him.
MNT moved to dismiss Buchholz’s complaint for lack of subject matter jurisdiction and for failure to state a claim. The district court granted MNT’s motion on both grounds, and Buchholz appealed.
The Sixth Court focused on whether the injury alleged by Buchholz was sufficiently concrete to bestow Article III standing. After reviewing Supreme Court case law discussing the roles played both by historical causes of action and Congress in determining whether an intangible injury is concrete, as well as the Supreme Court’s recent decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), the Sixth Circuit held that Buchholz had two ways of proving an injury, in fact, flowing from MNT’s alleged violation of the FDCPA: (1) he could allege that MNT violated the statute in a way that caused him concrete harm, or (2) he could allege that MNT’s violation of the statute created a risk of harm that Congress intended to prevent.
Because Buchholz alleged both, the Sixth Circuit addressed each argument in turn. First, he claimed that the anxiety he felt from reading MNT’s letters and fearing litigation was a concrete injury in fact. Second, he claimed that MNT’s alleged FDCPA violation by itself amounted to an injury in fact, setting aside any anxiety he suffered.
The Sixth Circuit Expresses Doubt that Anxiety can Constitute Concrete Injury in Fact
Buchholz argued that his anxiety constituted a concrete injury, pointing to a Ninth Circuit case permitting the plaintiff to recover emotional distress damages in FDCPA case involving a debt collector that instituted litigation against the plaintiff when the collector knew the debt was barred by a prior judgment. The Sixth Circuit noted that the case, and others like it, did not address the issue of injury in fact. Accordingly, the Court could not infer from those cases that Buchholz’s anxiety was an injury in fact. Moreover, in those cases, emotional distress was supported by corroborating allegations that established more than bare anxiety. Determining that Spokeo instructs courts to look to traditional harms, here in the context of psychological injuries, the Court indicated alleging anxiety alone appears to fall short of a cognizable injury as a matter of general tort law. Thus, the Sixth Circuit observed that Buchholz’s failure to allege anything more than anxiety made it “skeptical about whether he has established an injury in fact.”
Fear of Future Harm is not a Cognizable Injury
Ultimately, the Court determined that it did not need to decide whether anxiety alone can be injury in fact because Buchholz failed a different aspect of the injury in fact analysis. His anxiety as alleged amounted to fear of future harm (fear that he would be sued) – an injury that is “rarely” cognizable. Fear of future harm is not an injury in fact unless the future harm is “certainly impending.” Clapper v. Amnesty Intl USA, 568 U.S. 398, 410 (2013). Buchholz lacked standing under Clapper because the threat of litigation was not “certainly impending.” The letters did not threaten litigation and, most importantly, Buchholz did not allege that he refused to pay his debts. Buchholz’s allegation of anxiety fell short of the injury-in-fact requirement because it amounted to an allegation of fear of something that might or might not occur in the future.
Buchholz’s Alleged Injury Failed to Meet the Traceability Requirement
The Sixth Circuit went on to hold that, even if Buchholz could show injury in fact based on anxiety, he could not show that his injury was traceable to MNT’s conduct. Buchholz was anxious about the consequences of his decision not to pay debts he admitted he owed. This is a self-inflicted injury and therefore is not fairly traceable to the complained-of conduct. The standard for proving traceability is less demanding than that to show tort causation – i.e., the harm can flow indirectly – but an injury can be so completely due to the plaintiff’s own fault that it breaks the causal chain. Here, Buchholz did not claim that he did not owe the debts nor did he allege that MNT’s letters contained any inaccuracies. The cause of his anxiety – that he would be subjected to legal action – was traceable only to his own actions, because he chose not to pay his debts.
Any FDCPA Procedural Violation did not Establish an Injury in Fact
Next, the Sixth Circuit turned to the possibility that Buchholz suffered an injury in fact due to MNT’s alleged FDCPA violation. Buchholz claimed that MNT violated the FDCPA, 15 U.S.C. 1692e(3), when it sent two letters suggesting an attorney had formed a legal opinion that he owed the two debts. As Spokeo makes clear, however, not all procedural violations “open the door to federal court.”
The Court addressed three recent decisions it found illustrative on this issue. In Hagy v. Demers & Adams, 882 F.3d 616 (6th Cir. 2018), the Sixth Circuit held that no concrete harm resulted from a debt collector’s procedural failure to put the FDCPA disclosure on letter to plaintiffs’ counsel agreeing that plaintiffs were not liable for the balance of a debt. In contrast, in Macy v. GC Servs. Ltd. Pship, 897 F.3d 747 (6th Cir. 2018), the Court held that a disclosure that failed to mention the debtors were required to dispute a debt in writing could have led them to contest the debt orally and waive some of the FDCPA’s other protections. Accordingly, the procedural violation gave rise to an injury in fact. Finally, Demarais v. Gurstel Chargo, P.A., 869 F.3d 685 (8th Cir. 2017), involved an attempt to collect a debt that had been resolved in favor of the debtor and that res judicata barred from collection. The Eighth Circuit held that the violation gave rise to an injury in fact because Congress had “identified a harm – being subjected to attempts to collect debts not owed” and common law provided analogous examples of harm, such as malicious prosecution.
The Sixth Circuit held that Buchholz’s claimed injury was similar to the situation in Hagy. Even if MNT violated the FDCPA by misrepresenting that an attorney had reviewed Buchholz’s debts, the Court was unable to identify any harm from that violation. Buchholz did not deny owing the debts, nor did he identify any inaccuracy or omission in the letters. The letters simply did not cause any harm, much less harm Congress sought to prevent when enacting the FDCPA. Nor was there any analogous common law harm – another indication that Buchholz’s alleged harm was not cognizable.
The Concurrence Would Find that Anxiety Alone is a Concrete Harm
Judge Murphy concurred in the judgment and with the majority’s determination that Buchholz did not plausibly allege that his anxiety was caused by the purportedly illegal conduct of MNT. He wrote separately to express his disagreement with the majority’s “doubt” that mental anxiety can create a case or controversy under Article III. Judge Murphy would find that mental harms arising from the violation of only personal rights create Article III cases. If a plaintiff’s claim is sufficiently particularized (i.e., the plaintiff asserts the violation of a private right), Judge Murphy “tend[s] to think that mental distress satisfies any additional concreteness requirement.”
With this case, the Sixth Circuit signaled that anxiety alone may be insufficient to demonstrate an injury in fact, lending ammunition to defendants seeking to defeat subject matter jurisdiction in cases involving procedural violations of the FDCPA.