In Hagy v. Demers & Adams, 2018 WL 914953, at *3–5 (C.A.6 (Ohio), 2018), the Court of Appeals for the 6th Circuit held that “[w]e know of no circuit court decision since Spokeo that endorses an anything-hurts-so-long-as-Congress-says-it-hurts theory of Article III injury.”. Thus, the 6th Circuit held that a bare FDCPA violation without correlative injury did not vest Article III standing in the consumer. The Court of Appeals by its own admission went a step further and held that Congress did not have the authority, and even if it did it did not exercise it, to create injury where there is none.
In one sense, it seems easy to say that the Hagys have standing to bring a claim against Demers under the Act with respect to his June 30 letter. The complaint makes allegations with respect to each element of the cause of action: (1) Demers sent a letter to the Hagys about a debt implicating a duty established by the Act; (2) the letter failed to include the required disclosure; and (3) the Hagys seek statutory damages. These kinds of allegations usually eliminate any doubts about Article III standing and usually allow the parties and the court to move on to the merits. But usually is not always. What makes this case different is that Demers challenges Congress’s authority to create this injury—to create an injury in fact that involves no harm of any sort that could satisfy the injury-in-fact requirements of Article III. See Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S.Ct. 1540, 1546–48, 194 L.Ed.2d 635 (2016). The relevant conduct is Demers’ June 30 letter to the Hagys’ lawyer, James Sandy. Demers sent the letter to confirm that he had received the Hagys’ signed Deed and that Green Tree would no longer require the Hagys to pay their deficiency balance. . . .James Hagy admits that what Demers said in his letter “turned out to be true.” R. 67 at 27. Far from causing the Hagys any injury, tangible or intangible, the June 30 letter gave them peace of mind, and they have never testified otherwise. At this point in the case, no one plausibly argues (or even alleges) that the Hagys suffered an actual injury and damages from the letter. Demers had nothing to do with the true source of their anxiety—Green Tree’s phone calls seeking to collect the deficiency weeks after the Hagys executed the Deed, which could be injury-causing. That leaves the possibility that Congress’s creation of a statutory injury and damages suffices to satisfy Article III’s standing imperative. Congress created a cause of action—and injury—that covers Demers’ failure to disclose in his June 30 letter “that the communication [wa]s from a debt collector.” 15 U.S.C. § 1692e(11). But it is not that simple, as the Supreme Court recently established in Spokeo. To satisfy the injury in fact requirement, the Hagys must point to some harm other than the fact of “a bare procedural violation.” Spokeo, 136 S.Ct. at 1550. Not all procedural violations, not even all inaccuracies, cause real harm. . . .But the Hagys have not shown, in truth have not even tried to show, that this failure to disclose caused them any actual harm beyond that “bare procedural violation.” As they argued in their briefs and as they reiterated at oral argument, the letter was “hurtful” only “because it did not provide the [required] notice.” Oral Arg. at 18:19–18:46. They do not say that the non-disclosure created a risk of double payment, caused anxiety, or led to any other concrete harm. On this record, it is difficult to see—and we cannot see—how the June 30 letter did anything other than help the Hagys. When Green Tree came calling, in point of fact, James Hagy relied on the June 30 letter to refuse to pay the deficiency balance. The letter was good news when it arrived, and it became especially good news when Green Tree persisted in trying to collect a no-longer-collectible debt. The district court thought a bare violation of § 1692e(11) sufficed, even after Spokeo. “Congress,” it said, “has created a new right—the right to receive the required disclosures in communications governed by the FDCPA—and a new injury—not receiving such disclosures.” . . .We know of no circuit court decision since Spokeo that endorses an anything-hurts-so-long-as-Congress-says-it-hurts theory of Article III injury. Although Congress may “elevate” harms that “exist” in the real world before Congress recognized them to actionable legal status, it may not simply enact an injury into existence, using its lawmaking power to transform something that is not remotely harmful into something that is. Spokeo, 136 S.Ct. at 1548–49. Today’s case illustrates the necessity of this limit. It’s not just that this letter gave the Hagys everything they wanted. They insist that an even better letter—“Attached is a thousand dollars in cash, no strings attached, no response needed”—would cause a concrete injury if it omitted the required disclosure. Oral Arg. at 18:50–19:30. That approach, if accepted, would leave Congress as the sole author of any limits on the Article III judicial power to hear cases and controversies. We appreciate that Congress has some leeway “to define injuries and articulate chains of causation.” Lujan, 504 U.S. at 580, 112 S.Ct. 2130 (Kennedy, J., concurring). And we appreciate that, “because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important.” Spokeo, 136 S.Ct. at 1549. But it did not purport to use that judgment or leeway here. All it did was require debt collectors to disclose in their “communications [with consumers] that the communication is from a debt collector” and entitle individuals to sue for “fail[ures] to comply” with that requirement—no matter whether the letter sought to collect a debt or release one. 15 U.S.C. §§ 1692e(11), 1692k(a). Nowhere in the Act (or for that matter the legislative record) does Congress explain why the absence of such a warning always creates an Article III injury. As we have said before and repeat here, “standing is not met simply because a statute creates a legal obligation,” as in § 1692e(11), “and allows a private right of action for failing to fulfil this obligation,” as in § 1692k(a). Lyshe, 854 F.3d at 860; see also Wall v. Mich. Rental, 852 F.3d 492, 495 (6th Cir. 2017); Soehnlen v. Fleet Owners Ins. Fund, 844 F.3d 576, 582 (6th Cir. 2016). Congressional leeway cannot mean judicial abdication. Broad though Congress’s powers may be to define and create injuries, they cannot override constitutional limits. It may be true, for example, that it is difficult to think of “property” without law. In truth, there may be no such thing as “property” without law, and the law that creates property interests often will be legislative. But neither Congress nor a state legislature may define “private property” in a way that eliminates an otherwise cognizable claim under the Takings Clause of the Fifth (and Fourteenth) Amendment. See Murr v. Wisconsin, ––– U.S. ––––, 137 S.Ct. 1933, 1942–45, 198 L.Ed.2d 497 (2017). And Congress may not make a First Amendment limit on its power go away by announcing that flag burning is not “speech.” See Texas v. Johnson, 491 U.S. 397, 402–06, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). . . It’s difficult, we recognize, to identify the line between what Congress may, and may not, do in creating an “injury in fact.” Put five smart lawyers in a room, and it won’t take long to appreciate the difficulty of the task at hand. But what spares us the task of precisely drawing that line, and what makes this case relatively easy, is that Congress did not even try to show that the absence of this warning would always create an injury. All we need say today is that Congress may not say that anything is an injury, and by saying so expect the federal courts to agree. Just as there must be some limits on Congress’s power to regulate commerce,  there must be some limits on Congress’s power to create injuries in fact suitable for judicial resolution. Because Congress made no effort to show how a letter like this would create a cognizable injury in fact and because we cannot see any way in which that could be the case, we must dismiss this claim for lack of standing.