Maureen Riccio v. Sentry Credit Inc ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-1463
_____________
MAUREEN RICCIO,
on behalf of herself and all others
similarly situated,
Appellant
v.
SENTRY CREDIT, INC.;
JOHN DOES 1-25
On Appeal from the United States District Court
for the District of New Jersey
District Court No. 3-17-cv-01773
District Judge: The Honorable Brian R. Martinotti
Argued February 19, 2020
Before: SMITH, Chief Judge, McKEE, AMBRO,
CHAGARES, JORDAN, HARDIMAN, GREENAWAY,
JR., SHWARTZ, KRAUSE, RESTREPO, BIBAS,
PORTER, MATEY, and PHIPPS, Circuit Judges
(Filed: March 30, 2020)
Joseph K. Jones [ARGUED]
Benjamin J. Wolf
Jones Wolf & Kapasi
375 Passaic Avenue
Suite 100
Fairfield, NJ 07004
Counsel for Appellant
Jacob C. Cohn [ARGUED]
Gordon Reese Scully Mansukhani
Three Logan Square
1717 Arch Street, Suite 610
Philadelphia, PA 19103
Peter G. Siachos
Gordon Reese Scully Mansukhani
18 Columbia Turnpike
Suite 220
Florham Park, NJ 07932
Counsel for Appellee
2
____________________
OPINION OF THE COURT
_____________________
SMITH, Chief Judge.
This case presents a question of statutory
interpretation: does 15 U.S.C. § 1692g(a)(3) allow debtors
to orally dispute a debt’s validity?
It also presents a question of stare decisis: should our
en banc Court resolve a circuit conflict by overturning a
three-decades-old panel decision which has been eroded
by intervening Supreme Court authority?
Because we answer both questions affirmatively, we
will overrule Graziano v. Harrison’s contrary
interpretation of § 1692g(a)(3) and affirm.
I
A
The statutory interpretation question arises from
language which appears in the Fair Debt Collection
Practices Act, 15 U.S.C. §§ 1692–1692p (FDCPA). The
FDCPA protects against abusive debt collection practices
3
by imposing restrictions and obligations on third-party
debt collectors. See §§ 1692b–1692j.
This case concerns one of those requirements: that debt
collectors send debtors a letter notifying them of their right
to dispute the debt. See § 1692g. Section 1692g(a)
specifies five things the letter, often called a “validation
notice,” must include:
(1) the amount of the debt;
(2) the name of the creditor to whom the debt
is owed;
(3) a statement that unless the consumer,
within thirty days after receipt of the notice,
disputes the validity of the debt, or any
portion thereof, the debt will be assumed to
be valid by the debt collector;
(4) a statement that if the consumer notifies
the debt collector in writing within the thirty-
day period that the debt, or any portion
thereof, is disputed, the debt collector will
obtain verification of the debt or a copy of a
judgment against the consumer and a copy of
such verification or judgment will be mailed
to the consumer by the debt collector; and
4
(5) a statement that, upon the consumer’s
written request within the thirty-day period,
the debt collector will provide the consumer
with the name and address of the original
creditor, if different from the current creditor.
The question presented is whether the letter must
require all disputes to be in writing, or whether
§ 1692g(a)(3) permits oral disputes.
Before answering that question, it is instructive to
examine other protections the FDCPA provides when
debts are disputed. For instance, § 1692g(b) demands that:
If the consumer notifies the debt collector in
writing within the thirty-day period described
in subsection (a) that the debt, or any portion
thereof, is disputed, or that the consumer
requests the name and address of the original
creditor, the debt collector shall cease
collection of the debt, or any disputed portion
thereof, until the debt collector obtains
verification of the debt or a copy of a
judgment, or the name and address of the
original creditor, and a copy of such
verification or judgment, or name and
address of the original creditor, is mailed to
the consumer by the debt collector.
5
In addition, debt collectors are prohibited from reporting
disputed debts to credit agencies without noting the fact of
a dispute. See § 1692e(8) (prohibiting collectors from
“[c]ommunicating or threatening to communicate to any
person credit information which is known or which should
be known to be false, including the failure to communicate
that a disputed debt is disputed”). Finally, collectors
seeking payments on multiple debts owed by the same
debtor cannot apply a payment to any disputed debts. See
§ 1692h (“If any consumer owes multiple debts and makes
any single payment to any debt collector with respect to
such debts, such debt collector may not apply such
payment to any debt which is disputed by the consumer
and, where applicable, shall apply such payment in
accordance with the consumer’s directions.”).
B
We first considered the import of § 1692g(a)(3) in
Graziano. See 950 F.2d 107 (3d Cir. 1991). There, a three-
judge panel expressed “the view that, given the entire
structure of section 1692g, subsection (a)(3) must be read
to require that a dispute, to be effective, must be in
writing”:
Adopting [a contrary] reading of the statute
would thus create a situation in which, upon
the debtor’s non-written dispute, the debt
collector would be without any statutory
ground for assuming that the debt was valid,
6
but nevertheless would not be required to
verify the debt or to advise the debtor of the
identity of the original creditor and would be
permitted to continue debt collection efforts.
We see no reason to attribute to Congress an
intent to create so incoherent a system. We
also note that there are strong reasons to
prefer that a dispute of a debt collection be in
writing: a writing creates a lasting record of
the fact that the debt has been disputed, and
thus avoids a source of potential conflicts.
Id. at 112; accord Caprio v. Healthcare Revenue Recovery
Grp., LLC, 709 F.3d 142, 148 (3d Cir. 2013) (“In
Graziano v. Harrison, we specifically concluded that
‘subsection (a)(3), like subsections (a)(4) and (a)(5),
contemplates that any dispute, to be effective, must be in
writing.’” (citation omitted) (quoting Graziano, 950 F.3d
at 112)).
C
In the matter now before us, Maureen Riccio fell
behind on payments to M-Shell Consumer Oils. Sentry
Credit bought the debt and sought to collect on it. So it
sent Riccio a letter containing the following notification:
7
Compl. Ex. A.
Riccio sued,1 alleging the letter violated § 1692g(a)(3)
by providing a debtor with multiple options for contacting
Sentry Credit rather than explicitly requiring any dispute
be in writing. App. 53-54. Sentry Credit agreed that it had
to require Riccio to dispute the debt in writing under
1
The FDCPA authorizes private actions and imposes strict
liability for violations, with statutory damages up to $1000
and potential fee-shifting. See § 1692k.
8
Graziano, but the company viewed its letter as complying
with that requirement. It therefore moved for judgment on
the pleadings, and the District Court granted the motion.
See 2018 WL 638748, at *4-6 (D.N.J. Jan. 31, 2018).
Riccio timely appealed. The District Court exercised
jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
under 28 U.S.C. § 1291 and review statutory interpretation
questions de novo. See United States v. Hodge, 948 F.3d
160, 162 (3d Cir. 2020).
II
As noted, a panel of this Court previously concluded
§ 1692g(a)(3) requires that “any dispute, to be effective,
must be in writing.” Graziano, 950 F.2d at 112. Yet reading
the statutory text with fresh eyes—and more importantly,
with the past three decades of Supreme Court statutory-
interpretation caselaw—we think § 1692g(a)(3) permits
oral disputes.
A
We begin by looking at § 1692g(a)(3) itself. That
provision refers only to “disputes,” without specifying oral
or written. Used generally, the word fairly encompasses
both forms of communication. See, e.g., Dispute, Oxford
English Dictionary (2d ed. 1989) (“To discuss, debate, or
argue (a question); . . . To argue against, contest,
9
controvert; To call in question or contest the validity or
accuracy of a statement, etc., or the existence of a thing.”).
We must read § 1692g as a whole. Subsection (a)(3)
merely calls for “the consumer” to “dispute[] the validity
of the debt” in order to rebut the statutory presumption of
validity. But (a)(4) requires “the consumer [to] notif[y] the
debt collector in writing” before forcing the collector to
mail documentation verifying the debt. (emphasis added).
And (a)(5) similarly demands that the consumer make a
“written request within the thirty-day period” to compel
the collector to “provide the consumer with the name and
address of the original creditor, if different from the
current creditor.” (emphasis added). Subsection (b) then
echoes (a)(4) and (5), obliging collectors to “cease
collection . . . until . . . obtain[ing] verification” if the
debtor “notifie[d] the debt collector” of a dispute or
requested the creditor’s identity “in writing.” (emphasis
added). That intra-section variation strongly signals that
§ 1692g permits oral disputes. “We refrain from
concluding here that the differing language in the [various]
subsections has the same meaning in each.” Russello v.
United States, 464 U.S. 16, 23 (1983).
We must also consider the entirety of the FDCPA. Like
§ 1692g(a)(3)—but unlike (a)(4), (a)(5), and (b)—
§§ 1692e(8) and 1692h also discuss “dispute[s]” without
specifying a method of communication. That inter-section
variation amplifies the variation within § 1692g and, in
10
our view, refutes Riccio’s suggestion that Congress
inadvertently omitted a writing requirement from
§ 1692g(a)(3). “[W]here Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” Russello, 464 U.S. at 23(alteration in original) (quoting United States v. Wong Kim
Bo, 472 F.2d 720, 722 (5th Cir. 1972)).
Finally, we consider one of the most venerable of our
interpretive canons: the rule against surplusage. See
Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995) (“[T]he
Court will avoid a reading which renders some words
altogether redundant.”); see also Marbury v. Madison, 5
U.S. (1 Cranch) 137, 174 (1803) (using this canon to
interpret U.S. Const. art. III, § 2, cl. 2). Collectively, the
text of § 1692g(a)(3), (a)(4), and (b) signifies that if a
debtor makes the effort to dispute the debt in writing, the
collector must immediately stop collecting, verify the
debt, and respond. Yet if the debtor merely disputes the
debt orally, the collector can continue attempts to collect
the debt. It will, though, eventually have to prove the
debt’s validity.
Injecting a writing requirement into (a)(3) effectively
strikes that provision from the statute. It is a truism that if
a debt isn’t presumed valid, the debt collector must
eventually verify it. Subsection (a)(3) merely restates that
11
point: if the debtor disputes the debt, the collector must
verify it at some point down the road. But (a)(4) and (b)
demand that if the debtor disputes the debt in writing, the
collector must prove its validity immediately. So if every
dispute must be conveyed in writing, collectors must prove
every debt immediately—no collector can ever count on
its future ability to prove a debt. Put differently, inserting
a writing requirement into (a)(3) means that every dispute
triggers (a)(4) and (b). That simply can’t be right. If every
dispute triggers (a)(4) and (b), then (a)(3) has no
independent effect.
* * *
The upshot: § 1692g(a)(3)’s plain meaning permits a
debtor to dispute a debt orally. And when a “‘statute’s
language is plain, the sole function of the courts’—at least
where the disposition required by the text is not absurd—
‘is to enforce it according to its terms.’” Hartford
Underwriters Ins. Co. v. Union Planters Bank, N.A., 530
U.S. 1, 6 (2000) (quoting United States v. Ron Pair
Enters., 489 U.S. 235, 241 (1989)).
Riccio tries using this absurd-result exception to
shoehorn a writing requirement into § 1692g(a)(3).2 But
2
Riccio also uses United States v. American Trucking
Associations, 310 U.S. 534, 543 (1940), to argue she need
not show that permitting oral disputes would be absurd,
just that it would be unreasonable. Simply put, that
12
that dog won’t hunt. “An absurd interpretation is one that
‘defies rationality or renders the statute nonsensical and
superfluous.’” Encompass Ins. Co. v. Stone Mansion Rest.
Inc., 902 F.3d 147, 152 (3d Cir. 2018) (quoting United
States v. Moreno, 727 F.3d 255, 259 (3d Cir. 2013)). As
long as Congress could have any conceivable justification
for a result—even if the result carries negative
consequences—that result cannot be absurd. See United
States v. Fontaine, 697 F.3d 221, 228 (3d Cir. 2012)
(“[S]tandard interpretive doctrine . . . defines an ‘absurd
result’ as an outcome so contrary to perceived social
values that Congress could not have ‘intended’ it.”
(quoting John F. Manning, The Absurdity Doctrine, 116
Harv. L. Rev. 2387, 2390 (2003))); Hanif v. Attorney Gen.,
694 F.3d 479, 487 (3d Cir. 2012); see also In re Visteon
Corp., 612 F.3d 210, 234 (3d Cir. 2010) (“Virtually all
laws would be absurd if judged by whether they
accomplish a perfect solution to an underlying legislative
concern.”).
misrepresents the current state of the law. To depart from
a statute’s plain meaning today, the text must dictate a
result so unreasonable that it amounts to an absurdity. See
Tenn. Valley Auth. v. Hill, 437 U.S. 153, 187 n.33 (1978);
see also MORI Assocs., Inc. v. United States, 102 Fed. Cl.
503, 537-39 (2011) (detailing American Trucking
Associations’s practical abrogation).
13
Reading § 1692g(a)(3) to permit oral disputes falls far
short of the high bar this Court has set. In fact, allowing
oral disputes makes sense: it provides debtors multiple
methods to dispute debts while assigning various rights
depending on the method.3 An oral dispute can still defeat
the presumption of validity, still prevent collectors from
reporting the debt without noting the dispute, and still
preclude debt collectors holding multiple debts of the
same debtor from applying a payment to the disputed debt.
It just doesn’t force the debt collector to immediately stop,
verify, and respond in the way the FDCPA requires if a
dispute is in writing. That’s hardly absurd. If nothing else,
it is easier to prove written disputes and therefore easier to
enforce the additional protections that attach. 4
3
On this point, it bears noting that purposively reading the
FDCPA underscores our textual conclusion. At bottom,
expanding the ways a debtor can dispute a debt’s validity
makes it easier for debtors to invoke its protections. So
demanding written disputes not only flouts the FDCPA’s
text—it also hoodwinks the Act’s purpose.
4
Relatedly, at oral argument, Riccio’s counsel argued that
permitting oral disputes would spawn conundrums over
the “magic words” that distinguish a formal dispute from
informal grumbling. Oral Argument at 3:16, 4:57 (Feb. 19,
2020), https://www2.ca3.uscourts.gov/oralargument/
audio/18-1463Ricciov.%20SentryCreditInc.mp3; see also
id. at 6:05, 50:31. We think district courts are more than
14
Lest any doubt remains, Lamie v. United States Trustee
should settle the matter. There, the Supreme Court refused
to “read an absent word into [a] statute” despite “an
apparent legislative drafting error” that rendered the
statute “awkward, and even ungrammatical.” 540 U.S.
526, 530-38 (2004). “With a plain, nonabsurd meaning in
view, we need not proceed in this way,” the Court said,
noting their “longstanding” “unwillingness to soften the
import of Congress’ chosen words even if we believe the
words lead to a harsh outcome.” Id. at 538.
So too here. Even if we thought Congress inadvertently
omitted a writing requirement from § 1692g(a)(3), and
even if we thought permitting oral disputes precipitated an
incoherent system, we must still recognize the validity of
oral disputes based on § 1692g’s plain meaning. “If
Congress enacted into law something different from what
it intended, then it should amend the statute . . . . ‘It is
beyond our province to rescue Congress from its drafting
errors, and to provide for what we might think . . . is the
preferred result.’” Id. at 542 (second omission in original)
(quoting United States v. Granderson, 511 U.S. 39, 68
(1994) (Kennedy, J., concurring in the judgment)).
capable of that linedrawing. In fact, they already do it
when reviewing a debtor’s written communication.
15
B
Other courts have reached the same conclusion. The
Second, Fourth, and Ninth Circuits reject a writing
requirement, openly splitting with Graziano. See Clark v.
Absolute Collection Serv., Inc., 741 F.3d 487, 490-91 (4th
Cir. 2014) (per curiam); Hooks v. Forman, Holt, Eliades &
Ravin, LLC, 717 F.3d 282, 285-86 (2d Cir. 2013);
Camacho v. Bridgeport Fin. Inc., 430 F.3d 1078, 1080-81
(9th Cir. 2005). And without noting the split, the First,
Fifth, Sixth, and Seventh Circuits have taken the same
position. See Macy v. GC Servs. Ltd., 897 F.3d 747, 757-
58 (6th Cir. 2018); Evans v. Portfolio Recovery Assocs.,
LLC, 889 F.3d 337, 347 n.6 (7th Cir. 2018); Sayles v.
Advanced Recovery Sys., Inc., 865 F.3d 246, 249-50 (5th
Cir. 2017); Brady v. Credit Recovery Co., 160 F.3d 64, 66-
67 (1st Cir. 1998).
C
In sum, we no longer think § 1692g(a)(3) requires
written disputes. Simply put, “Congress did not write the
statute that way.” United States v. Naftalin, 441 U.S. 768,
773 (1979). Subsections (a)(4), (a)(5), and (b) command a
written dispute; (a)(3) does not. “We would not presume
to ascribe this difference to a simple mistake in
draftsmanship.” Russello, 464 U.S. at 23.
16
III
The foregoing details our reasoning, and our
disagreement with Graziano. Yet we must consider
whether stare decisis justifies our upholding that
precedent. “Stare decisis—in English, the idea that today’s
Court should stand by yesterday’s decisions—is ‘a
foundation stone of the rule of law.’” Kimble v. Marvel
Entm’t, LLC, 135 S. Ct. 2401, 2409 (2015) (quoting
Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 798
(2014)). To be sure, stare decisis “is not an inexorable
command,” but it is critical to “promote[] the evenhanded,
predictable, and consistent development of legal
principles, foster[] reliance on judicial decisions, and
contribute[] to the actual and perceived integrity of the
judicial process.” Payne v. Tennessee, 501 U.S. 808, 827
(1991). In fact, sometimes it “means sticking to some
wrong decisions.” Kimble, 135 S. Ct. at 2409. After all, “it
is usually ‘more important that the applicable rule of law
be settled than that it be settled right.’” Id. (quoting Burnet
v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932)
(Brandeis, J., dissenting)). That’s especially true in
statutory interpretation cases like this one, because
Congress can correct unintended interpretations. See id. at
2409-10.
Before overruling its own precedent, the Supreme
Court looks for “‘special justification[s]’ [] over and above
the belief ‘that the precedent was wrongly decided.’”
17
Kimble, 135 S. Ct. at 2409 (quoting Halliburton Co. v.
Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014)). Those
include “the quality of [the prior case]’s reasoning, the
workability of the rule it established, its consistency with
other related decisions, developments since the decision
was handed down, and reliance on the decision.” Janus v.
AFSCME, 138 S. Ct. 2448, 2478-79 (2018). Though we,
as a lower court, “play a different role in the federal
system,” we join virtually every other Circuit in weighing
those same considerations before overturning our own
caselaw. Critical Mass Energy Project v. NRC, 975 F.2d
871, 876 (D.C. Cir. 1992) (en banc); see also United States
v. Sykes, 598 F.3d 334, 338 (7th Cir. 2010), aff’d, 564 U.S.
1 (2011), overruled on other grounds by Johnson v. United
States, 135 S. Ct. 2551 (2015); Shi Liang Lin v. U.S. Dep’t
of Justice, 494 F.3d 296, 310 (2d Cir. 2007) (en banc);
United States v. Heredia, 483 F.3d 913, 918-19 (9th Cir.
2007) (en banc); Glazner v. Glazner, 347 F.3d 1212, 1216
(11th Cir. 2003) (en banc); Festo Corp. v. Shoketsu
Kinzoku Kogyo Kabushiki Co., 234 F.3d 558, 575 (Fed.
Cir. 2000) (en banc), vacated on other grounds, 535 U.S.
722 (2002); Stewart v. Dutra Constr. Co., 230 F.3d 461,
467 (1st Cir. 2000), rev’d on other grounds, 543 U.S. 481(2005); Coats v. Penrod Drilling Corp., 61 F.3d 1113,
1137-38 (5th Cir. 1995) (en banc); McKinney v. Pate, 20
F.3d 1550, 1565 n.21 (11th Cir. 1994) (en banc).
We also consider three factors unique to courts of
appeals. First, prior en banc decisions carry more stare
18
decisis weight than prior panel decisions. See United
States v. Games-Perez, 695 F.3d 1104, 1124 (10th Cir.
2012) (Gorsuch, J., dissental) (“[I]t is surely
uncontroversial to suggest that the point of the en banc
process, the very reason for its existence, is to correct
grave errors in panel precedents when they become
apparent, even if the panel precedents in question happen
to be old or involve questions of statutory or regulatory
interpretation.”); Igartua v. United States, 654 F.3d 99,
100 (1st Cir. 2011) (statement of Lynch, C.J., and Boudin
& Howard, JJ.) (declining “to reopen settled issues which
have already been given en banc treatment”); McKinney,
20 F.3d at 1565 n.21 (“It must be recalled that this is the
first time this court sitting en banc has addressed this issue;
thus, the implications of stare decisis are less weighty than
if we were overturning a precedent established by the court
en banc.”). See generally Letter from Justice Sandra Day
O’Connor to Ret. Justice Byron R. White (June 23, 1998),
published in Review of the Report by the Commission on
Structural Alternatives for the Federal Courts of Appeals
Regarding the Ninth Circuit and the Ninth Circuit
Reorganization Act: Hearing on S. 253 Before the
Subcomm. on Admin. Oversight & the Courts of the S.
Comm. on the Judiciary, 106th Cong. 71 (1999)
[hereinafter Ninth Circuit Review] (“It is important to the
federal system as a whole that the Courts of Appeals utilize
en banc review to correct panel errors within the circuit
that are likely to otherwise come before the Supreme
Court.”); Letter from Justice Antonin Scalia to Ret. Justice
19
Byron R. White (Aug. 21, 1998), published in Ninth
Circuit Review 72 (“[T]he function of en banc hearings . .
. is not only to eliminate intra-circuit conflicts, but also to
correct and deter panel opinions that are pretty clearly
wrong. . . . The disproportionate segment of [the Supreme
Court’s] discretionary docket that is consistently devoted
to reviewing [a court of appeals’s] judgments, and to
reversing them by lop-sided margins, suggests that this
error-reduction function is not being performed
effectively.”).
Second, “[w]hile we generally ‘decide cases before us
based on our own examination of the issue, not on the
views of other jurisdictions,’ the[] more recent [contrary]
decisions [from other circuits] suggest that we should
‘consider whether the reasoning applied by our colleagues
elsewhere is persuasive.’” Bastardo-Vale v. Attorney
Gen., 934 F.3d 255, 267 (3d Cir. 2019) (en banc) (quoting
In re Grossman’s Inc., 607 F.3d 114, 121 (3d Cir. 2010)
(en banc)); see also United States v. Corner, 598 F.3d 411,
414 (7th Cir. 2010) (en banc) (“Although . . . it is rarely
appropriate to overrule circuit precedent just to move from
one side of a [circuit] conflict to another, reconsideration
is more appropriate when [we] can eliminate the conflict
by overruling a decision that lacks support elsewhere.”);
cf. Wagner v. PennWest Farm Credit, ACA, 109 F.3d 909,
912 (3d Cir. 1997) (“In light of such an array of
[unanimous] precedent [from other courts of appeals], we
would require a compelling basis to hold otherwise before
20
effecting a circuit split.”); Butler Cty. Mem’l Hosp. v.
Heckler, 780 F.2d 352, 357 (3d Cir. 1985) (“[T]his Court
should be reluctant to contradict the unanimous position
of other circuits.”).
Third, “on rare occasions a circuit precedent, though
not directly overruled or superseded, nonetheless might
crumble” if “case law postdating ‘the original decision,
although not directly controlling, nevertheless offers a
sound reason for believing that the former panel, in light
of fresh developments, would change its collective
mind.’” Stewart, 230 F.3d at 467 (quoting Williams v.
Ashland Eng’g Co., 45 F.3d 588, 592 (1st Cir. 1995)).
All three factors support overturning Graziano. Given
Lamie and other recent Supreme Court decisions, we
believe the panel that decided Graziano would decide it
differently today. And what’s more, Graziano was only a
panel decision; our en banc Court has never expressed a
view on the issue presented. By expressing our view today,
we put an end to a circuit split and restore national
uniformity to the meaning of § 1692g.
Traditional stare decisis considerations point in the
same direction. For starters, district courts applying
Graziano have split over whether identical language
violates its rule. See Cadillo v. Stoneleigh Recovery
Assocs., LLC, No. 17-7472, 2019 WL 1091391, at *4
(D.N.J. Mar. 8, 2019) (collecting cases), appeal docketed,
19-2811 (3d Cir. Aug. 8, 2019).
21
Additionally, “the growth of judicial doctrine” has
undermined Graziano’s reasoning. Patterson v. McClean
Credit Union, 491 U.S. 164, 173 (1989), superseded on
other grounds by statute, Civil Rights Act of 1991, Pub. L.
No. 102-166, 105 Stat. 1071, as recognized in Jones v. R.R.
Donnelly & Sons Co., 541 U.S. 369, 383 (2004). Recall
how Graziano framed its own conclusion: “subsection
(a)(3) . . . contemplates that any dispute, to be effective,
must be in writing.” 950 F.2d at 112 (emphasis added).
That is a curious verb choice, since it suggests the panel
thought § 1692g(a)(3) meant something other than what it
says. See, e.g., Contemplate, Oxford English Dictionary
(2d ed. 1989) (“To have in view, look for, expect, take into
account as a contingency to be provided for. To have in
view as a purpose; to intend, purpose.”).
But that is not how we read statutes today. In the years
before Graziano, the Supreme Court engaged in statutory
interpretation with statements like, “[a]bsent a clearly
expressed legislative intention to the contrary, th[e
statutory] language must ordinarily be regarded as
conclusive.” Consumer Prod. Safety Comm’n v. GTE
Sylvania, Inc., 447 U.S. 102, 108 (1980) (emphasis
added). In the years since Graziano, the Court has
instructed us “that [the] legislature says . . . what it means
and means . . . what it says.” Henson v. Santander
Consumer USA Inc., 137 S. Ct. 1718, 1725 (2017)
(alteration and omissions in original) (quoting Dodd v.
United States, 545 U.S. 353, 357 (2005)). In other words,
22
“[a]s Justice Kagan recently stated, ‘we’re all textualists
now.’” Brett M. Kavanaugh, Fixing Statutory
Interpretation, 129 Harv. L. Rev. 2118, 2118 (2016)
(reviewing Robert A. Katzmann, Judging Statutes (2014))
(quoting Justice Elena Kagan, The Scalia Lecture: A
Dialogue with Justice Kagan on the Reading of Statutes at
8:28 (Nov. 17, 2015), http://perma.cc/BCF-FEFR). We
decline to breathe new life into Graziano’s atextual
interpretation of § 1692g(a)(3), an interpretation that has
already made us the “legal last-man-standing” among the
courts of appeals. Kimble, 135 S. Ct. at 2411.
Moreover, any legitimate reliance interests seem
minimal. Overturning Graziano merely requires debt
collectors to prospectively tweak their collection notice
template. If anything, since debt collectors may operate
nationwide, overturning Graziano should make their job
easier by allowing them to use the same form no matter
where a debtor resides. By contrast, resuscitating
Graziano would mean collectors must use one notice in
Pennsylvania, New Jersey, Delaware, and the Virgin
Islands, but another everywhere else. And overturning
Graziano helps debtors too, since the case’s atextual rule
requires more than the statutory text mandates for them to
dispute a debt’s validity. See supra note 3 and
accompanying text.
* * *
23
By today’s standards, Graziano’s “reasoning was
clearly wrong”; changes in the way we interpret statutes
“have unmoored the case from its doctrinal anchors.”
Morrow v. Balaski, 719 F.3d 160, 180 (3d Cir. 2013)
(Smith, J., concurring). Both traditional stare decisis
principles and considerations unique to courts of appeals
convince us that Graziano should be, and now is,
overruled.
IV
Perhaps anticipating the result we announce today,
Riccio asks us to curb our holding’s retroactive application
so that Graziano still governs her claim. Her only support
for that argument is New Jersey precedent allowing state-
court judges to limit a holding’s retroactive application
“when ‘considerations of fairness and justice, related to
reasonable surprise and prejudice to those affected’
counsel [them] to do so.” Malinowski v. Jacobs, 915 A.2d
513, 517 (N.J. 2007) (quoting N.J. Election Law Enf’t
Comm’n v. Citizens to Make Mayor–Council Gov’t Work,
526 A.2d 1069, 1073 (N.J. 1987)).
Yet federal courts follow a different rule. Our holding
today “is the controlling interpretation of federal law and
must be given full retroactive effect in all cases still open
on direct review and as to all events, regardless of whether
such events predate or postdate our announcement of the
rule.” Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97
(1993). “[W]e can scarcely permit ‘the substantive law [to]
24
shift and spring’ according to ‘the particular equities of
[individual parties’] claims’ of actual reliance on an old
rule and of harm from a retroactive application of the new
rule.” Id. (alterations in original) (quoting James B. Beam
Distilling Co. v. Georgia, 501 U.S. 529, 543 (1991)
(opinion of Souter, J.)). We will, therefore, apply to this
case our new rule that debt collectors need not require
debtors to dispute the validity of their debt in writing.5
5
We do not suggest that debt collectors who sent
Graziano-compliant letters before today will be on the
hook for failing to foresee our change in the law. Just as
collectors who act “in good faith in conformity with any
[agency] advisory opinion” cannot be liable if that
“opinion is amended, rescinded, or” judicially invalidated,
§ 1692k(e), collectors should not be penalized for good-
faith compliance with then-governing caselaw. To that
end, we note district courts can withhold damages for
unintentional errors, § 1692k(b), award no damages for
trivial violations, § 1692k(a)(1), and even award
attorney’s fees to the collector if the debtor’s suit “was
brought in bad faith and for the purpose of harassment,”
§ 1692k(a)(3). See generally Jerman v. Carlisle,
McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 597-
99 (2010). We have confidence in district courts to
exercise that discretion appropriately.
25
V
Our new rule dooms Riccio’s claim. As we and several
other Circuits have held, debt collection notices must
intelligibly convey the § 1692g(a) requirements. See
Wilson v. Quadramed Corp., 225 F.3d 350, 354-55 (3d Cir.
2000) (collecting cases). Put another way, a hypothetical
“least sophisticated debtor” should be able to read the
notice and reasonably discern her rights. Id.; cf. United
States v. Nat’l Fin. Servs., Inc., 98 F.3d 131, 136 (4th Cir.
1996) (noting the least sophisticated debtor standard “also
prevents liability for bizarre or idiosyncratic
interpretations of collection notices by preserving a
quotient of reasonableness and presuming a basic level of
understanding and willingness to read with care”).6
Sentry Credit’s collection notice easily clears that bar.
Its plainspoken language reproduces § 1692g(a)(3)–(5)
nearly word-for-word, alerting the least sophisticated
debtor of her rights as effectively as does the statute itself.
6
Although Judge Matey reaches the same conclusion as
the Court, it is his view that the atextual “least
sophisticated debtor” test announced in Graziano warrants
reexamination. See Jensen v. Pressler & Pressler, 791
F.3d 413, 418 (3d Cir. 2015) (noting that the “least
sophisticated debtor” requirement “appears nowhere in the
text of the statute”). In his view, in an appropriate case, we
should revisit whether that standard comports with the
ordinary meaning of the FDCPA.
26
A collection notice can never mislead the least
sophisticated debtor by relying on the language Congress
chose. And since that’s all this notice did, Sentry Credit
did not violate § 1692g.
VI
In short, we conclude that debt collection notices sent
under § 1692g need not require that disputes be expressed
in writing. In doing so, we overrule Graziano’s contrary
holding. Because Sentry Credit’s notice perfectly tracked
§ 1692g’s text, we will affirm the judgment of the District
Court.
27