Hunstein v. Preferred Collection & Mgmt. Servs.

• Decision Date: 08 September 2022
• Docket Number: 19-14434
• Parties: RICHARD HUNSTEIN, Plaintiff-Appellant, v. PREFERRED COLLECTION AND MANAGEMENT SERVICES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

RICHARD HUNSTEIN, Plaintiff-Appellant,
v.
PREFERRED COLLECTION AND MANAGEMENT SERVICES, INC., Defendant-Appellee.

No. 19-14434

United States Court of Appeals, Eleventh Circuit

September 8, 2022

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:19-cv-00983-TPB-TGW

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Before WILLIAM PRYOR, Chief Judge, WILSON, JORDAN, ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, BRASHER, and TJOFLAT, ^[*] Circuit Judges.

OPINION

GRANT, CIRCUIT JUDGE

In opinion after opinion, one standing issue continues to arise-what it takes to show concrete harm. That question was once tricky. But for this case and others like it, where the plaintiff alleges no harm besides the violation of a statute, the Supreme Court has cut a straightforward path. Like it or not, that path is ours to follow.

We have done so before. We recently held, en banc, that pleading a bare procedural violation of a statute was not enough, at least on its own, to establish concrete injury. And in that same case, we followed the Supreme Court's direction to consider

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common-law torts as sources of information on whether a statutory violation had caused a concrete harm. The comparison shed helpful light there; because two tort elements were missing from the statutory violation, no similar harm could be inferred between the two.

The Supreme Court has since ratified our approach. In TransUnion, the Court reiterated that harm from a statutory violation had to be "real" in order to be concrete, and that one way to tell if a harm is real is to compare it to a harm redressed in a traditional common-law tort. The Court also used the same approach that we did-comparing the elements-to determine whether the harm caused by a new statutory violation was similar to the one invoked by an old tort claim. When viewed as a way to evaluate whether actual harm occurred, this approach makes sense-if the elements do not match up, how could the harm that results from those elements?

Here, we walk that same path again. The plaintiff alleges that a creditor sent information about his debt to a mail vendor, which then sent him a letter on behalf of the creditor reminding him of the terms of the debt. Though he identified no specific harm in his complaint, he now claims that the debt collector's act caused him a concrete injury because it was analogous to the commonlaw tort of public disclosure. The problem with this theory is that his alleged reputational injury lacks a necessary element of the comparator tort-the requirement that the disclosure be public.

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Without publicity, a disclosure cannot possibly cause the sort of reputational harm remediated at the common law.

The comparison to public disclosure of private facts is the sole basis on which the plaintiff rested his claim of concrete harm. Because that comparison fails, he cannot show any real harm, and we dismiss his complaint.

I.

Richard Hunstein experienced a nearly inevitable frustration of modern American life-an expensive medical bill. When he did not pay, the hospital transferred the debt to a collection agency, Preferred Collection and Management Services. The agency, in turn, hired a commercial mail vendor to notify Hunstein that he needed to settle his debt. To that end, the collection agency sent its vendor several pieces of information, including Hunstein's name, his son's name, the amount of the debt, and the fact that the debt was incurred by Hunstein for his son's medical treatment. The vendor inserted the information into a prewritten form letter (on Preferred Collection's letterhead and with Preferred Collection's signature) and sent it along to Hunstein.^[1]

Within days of receiving the letter, Hunstein filed suit. He alleged that Preferred Collection had disclosed information about

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his debt to a third party-the mail vendor-in violation of the Fair Debt Collection Practices Act.^[2] See 15 U.S.C. § 1692c(b). The district court granted Preferred Collection's motion to dismiss, finding no violation because the communication to the mail vendor was not "in connection with the collection of any debt" as required for liability under the Act. Id. Hunstein appealed.

A panel of this Court reversed-but not before requesting supplemental briefing on standing. Hunstein v. Preferred Collection & Mgmt. Servs., Inc., 994 F.3d 1341, 1344-45 (11th Cir. 2021). Our en banc decision in Muransky v. Godiva Chocolatier, Inc. had recently been issued, making it clear that Hunstein's suit could not survive a standing inquiry if he simply alleged a "bare procedural violation" of the Fair Debt Collection Practices Act. See 979 F.3d 917, 921 (11th Cir. 2020). Muransky, to be sure, was also clear that some statutory violations could cause a real harm that supported standing; we reiterated the Supreme Court's guidance from Spokeo, Inc. v. Robins that one way to evaluate such alleged statutory harms was by comparing them to traditional common-law tort claims. See id. at 926 (citing 578 U.S. 330, 340-41 (2016)).

Because Hunstein had pleaded what could be characterized, at best, as an intangible harm resulting from a statutory violation,

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the panel considered whether his alleged injury had a common-law analogue. It did-at least as the panel saw it. The majority opinion recognized that Hunstein had alleged neither a tangible harm nor a "risk of real harm," but held that his injury was concrete in any event. Hunstein, 994 F.3d at 1346-49 (quoting Muransky, 979 F.3d at 927). It was enough, the panel said, that his alleged harm had a "close relationship" to "invasion-of-privacy torts," especially "public disclosure of private facts." Id. at 1347 (quotations omitted). The panel also concluded, in what it treated as either a second or a separate stage in evaluating concrete injury, that Hunstein had the judgment of Congress on his side. Id. at 1348.

Before that opinion went into effect, the Supreme Court issued TransUnion LLC v. Ramirez, which drilled down on what a plaintiff must show to establish that an alleged intangible harm is a concrete injury. 141 S.Ct. 2190 (2021). The panel vacated its first opinion in light of TransUnion. Hunstein v. Preferred Collection & Mgmt. Servs., Inc., 17 F.4th 1016, 1020 (11th Cir. 2021). But it also issued a new one. The new opinion spent more energy on the standing analysis, but ultimately reached the same result-this time over a vigorous dissent.

The panel majority admitted that TransUnion "may seem- at least on its face-to be in some tension with" the conclusion that Hunstein had standing to bring his claim. Id. at 1031. Even so, at least by the lights of the majority, the allegation that "some measure of disclosure in fact occurred" was close enough to the tort of public disclosure to constitute a concrete injury. Id. at 1027,

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1032. The dissent disagreed, arguing that such logic "swe[pt] much more broadly than TransUnion would allow." Id. at 1038 (Tjoflat, J., dissenting).

Following the revised opinion, our full Court voted to take the case en banc. Hunstein v. Preferred Collection & Mgmt. Servs., Inc., 17 F.4th 1103, 1104 (11th Cir. 2021). We now consider, in light of Spokeo, Muransky, and TransUnion, whether Hunstein has standing.

II.

We review Article III standing de novo. Muransky, 979 F.3d at 923. A plaintiff must support "each element" of standing with "the manner and degree of evidence required at the successive stages of the litigation." Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). Here, at the motion-to-dismiss stage, a plaintiff must allege facts that, taken as true, "plausibly" state that the elements of standing are met. Thole v. U.S. Bank N.A., 140 S.Ct. 1615, 1621 (2020); see also Muransky, 979 F.3d at 924 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009)).

III.

As we have explained, one of the "unexpected consequences of the common-law-analogy approach to identifying harms is the growing insistence on hammering square causes of action into round torts." Muransky, 979 F.3d at 931. That admonition finds new life in this case. Hunstein does his best to shove a nonpublic

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transfer of information into a tort targeting public disclosure, but it just does not fit.

When considering whether an alleged intangible harm is concrete, or "real," we look to see if it matches up with a harm "traditionally recognized as providing a basis for lawsuits in American courts." TransUnion, 141 S.Ct. at 2204. Spokeo offered, and TransUnion affirmed, a "simple instruction" about how to do so: "see if a new harm is similar to an old harm." Muransky, 979 F.3d at 931. Although an "exact duplicate" of a traditionally recognized harm is not required, the new allegations cannot be missing an element "essential to liability" under the comparator tort. TransUnion, 141 S.Ct. at 2209 (quotation omitted).

This guidance helps us heed our own warning to avoid "overthinking" the analysis. Muransky, 979 F.3d at 931. The new harm Hunstein alleges-a disclosure to a private party-is not similar to the old harm cited, disclosure to the public. That traditional tort requires publicity, and Hunstein alleges none. Without publicity, none of the exposure targeted by the tort of public disclosure is at play. He thus has failed to allege a concrete harm, and has no standing to bring his suit.

A.

The reason it matters whether Hunstein has alleged a concrete harm, rather than simply a statutory violation, is that federal courts have limited jurisdiction. Under the Constitution, we only have power to resolve "Cases" and "Controversies." U.S.

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Const. art. III, § 2. Though three traditional doctrines govern whether a case or controversy exists-standing, ripeness, and mootness-standing has gotten the lion's share of the attention in recent cases.

The "irreducible constitutional minimum of standing" itself has three components: injury in fact, causation, and...