Full Opinion (html_with_citations)

Appellate Case: 22-3006     Document: 010110784515       Date Filed: 12/16/2022    Page: 1
                                                                                  FILED
                                                                      United States Court of Appeals
                                       PUBLISH                                Tenth Circuit

                       UNITED STATES COURT OF APPEALS                       December 16, 2022

                                                                          Christopher M. Wolpert
                              FOR THE TENTH CIRCUIT                           Clerk of Court
                          _________________________________

  ELIZABETH SHIELDS,

        Plaintiff - Appellant,

  v.                                                          No. 22-3006

  PROFESSIONAL BUREAU OF
  COLLECTIONS OF MARYLAND, INC.,

        Defendant - Appellee.
                       _________________________________

                      Appeal from the United States District Court
                               for the District of Kansas
                         (D.C. No. 2:20-CV-02205-HLT-GEB)
                        _________________________________

 Russell S. Thompson, IV, Thompson Consumer Law Group, PC, Scottsdale, Arizona, for
 Plaintiff-Appellant.

 Joshua C. Dickinson (Kersten L. Holzhueter with him on the brief), Spencer Fane LLP,
 Kansas City, Missouri, for Defendant-Appellee.
                         _________________________________

 Before TYMKOVICH, PHILLIPS, and McHUGH, Circuit Judges.
                  _________________________________

 TYMKOVICH, Circuit Judge.
                   _________________________________

       Professional Bureau of Collections of Maryland, Inc. sent three collection

 letters to Elizabeth Shields over outstanding student loan debt. It used an outside

 mailer to send the letters. The letters did not indicate the debt balance could increase
Appellate Case: 22-3006    Document: 010110784515         Date Filed: 12/16/2022     Page: 2



 due to interest and fees from the date of the letters. Shields sued, alleging the

 disclosure of her debt and the misleading letters violated the Fair Debt Collection

 Practices Act (FDCPA).

       The district court dismissed because it found Shields lacked a concrete injury

 necessary for standing. We affirm. Shields did not allege that Professional Bureau’s

 use of a mailer and the content of its letters sufficiently harmed her.

                                    I. Background

       Shields has significant outstanding student loan debt. In July 2019,

 Professional Bureau sent her a collection letter that listed the assigned balance as

 $184,580.73 and the debt balance as $217,657.60 without explaining the

 difference or that the debt could increase due to interest, fees, and other charges.

 In early August, Professional Bureau sent a second letter with the same debt

 balance. It later sent a third letter with a debt balance of $218,727.01 without

 explaining the increase. Professional Bureau used an outside mailer to compose

 and send the letters.

       Shields sued under the FDCPA. She alleged Professional Bureau violated

 15 U.S.C. § 1692c(b) by communicating her debt to the mailer and violated

 § 1692e(2)(A), (10) and § 1692g(a)(1) by misrepresenting her debt. Professional

 Bureau moved to dismiss, alleging Shields lacked standing because she lacked a

 concrete injury. Shields responded and included a declaration of additional facts

 to show her injuries. The district court treated Professional Bureau’s motion as a

 facial challenge to subject matter jurisdiction, declined to consider the
                                             2
Appellate Case: 22-3006    Document: 010110784515        Date Filed: 12/16/2022    Page: 3



 declaration, and dismissed Shields’s complaint without prejudice because she

 lacked standing. It later rejected Shields’s requests to reopen the case, reconsider

 dismissal, and allow an amended complaint.

                                     II. Analysis

       Shields asserts she has standing because she suffered both concrete

 tangible and intangible injuries. And she claims the district court erroneously

 rejected her efforts to reopen the case and allow her to file an amended

 complaint.

       A. Standing

       The FDCPA limits how debt collectors can pursue certain types of debt and

 creates a private right of action when they violate those limitations. See

 Tavernaro v. Pioneer Credit Recovery, Inc.,
43 F.4th 1062, 1067
 (10th Cir.

 2022). But to invoke that right, “a violation of a legal entitlement alone is

 insufficient.” Laufer v. Looper,
22 F.4th 871, 878
 (10th Cir. 2022). Article III of

 the Constitution requires a plaintiff have standing to sue, meaning she has

 incurred (or will incur) (1) “an injury in fact, (2) that is fairly traceable to the

 challenged conduct of the defendant, and (3) that is likely to be redressed by a

 favorable judicial decision.” Spokeo, Inc. v. Robins,
578 U.S. 330, 338
 (2016).

 The injury must be concrete—real, not abstract—and can be either tangible (e.g.,

 physical) or intangible (e.g., reputational).
Id. at 340
. We determine “standing

 on a claim-by-claim basis.” Santa Fe All. for Pub. Health and Safety v. City of

 Santa Fe,
993 F.3d 802, 813
 (10th Cir. 2021), cert. denied,
142 S. Ct. 1228
                                            3
Appellate Case: 22-3006    Document: 010110784515     Date Filed: 12/16/2022     Page: 4



 (2022). Although a district court has discretion in how it resolves standing

 challenges under Rule 12(b)(1), Sizova v. Nat’l Inst. of Standards & Tech.,
282 F.3d 1320, 1326
 (10th Cir. 2002), we review its ultimate decision de novo, Baker

 v. USD 229 Blue Valley,
979 F.3d 866, 871
 (10th Cir. 2020).

       Tangible harms in the FDCPA context include familiar injuries like

 detrimental reliance on a collection letter that misrepresents debt. An intangible

 harm might occur if a collector used billboards to publicly shame a private citizen

 into paying his debt. When considering “whether an intangible harm constitutes

 injury in fact, both history and the judgment of Congress play important roles.”

 Spokeo,
578 U.S. at 340
. “Congress may ‘elevat[e] to the status of legally

 cognizable injuries concrete, de facto injuries that were previously inadequate in

 law.’”
Id. at 341
 (alteration in Spokeo) (quoting Lujan v. Defs. of Wildlife,
504 U.S. 555, 578
 (1992)). But the central question is “whether the asserted harm has

 a ‘close relationship’ to a harm traditionally recognized as providing a basis for a

 lawsuit in American courts.” TransUnion LLC v. Ramirez,
141 S. Ct. 2190, 2200

 (2021). The harms must be similar “in kind, not degree.” Lupia v. Medicredit,

 Inc.,
8 F.4th 1184
, 1192 (10th Cir. 2021) (internal quotation marks omitted).

 Because an “exact duplicate” is unnecessary, TransUnion,
141 S. Ct. at 2204
, a

 plaintiff may have standing for a statutory claim even if she could not succeed on

 the traditional tort, Lupia, 8 F.4th at 1192.




                                            4
Appellate Case: 22-3006      Document: 010110784515       Date Filed: 12/16/2022   Page: 5



       Shields alleges Professional Bureau injured her in two ways: by disclosing

 her debt and sending misleading letters. We conclude neither caused a concrete

 injury.

                1. Disclosure

           The FDCPA generally prohibits debt collectors from communicating, “in

 connection with the collection of any debt, with any person” without the

 consumer’s consent or court permission. § 1692c(b). 1 There are, however, a few

 exceptions, such as the consumer, the consumer’s attorney, and the collector’s

 attorney. Id. Outside mailers are not one of the enumerated exceptions.

       Shields asserts Professional Bureau’s disclosure violated the FDCPA and

 injured her. Here, like below, she primarily relies on a close relationship with the

 traditional tort of public disclosure of private facts. That tort occurs when a

 tortfeasor gives “publicity to a matter concerning the private life of another” and

 “the matter publicized is of a kind that (a) would be highly offensive to a

 reasonable person, and (b) is not of legitimate concern to the public.”



       1
            In relevant part, the statute says,

                [W]ithout the prior consent of the consumer given directly
                to the debt collector, or the express permission of a court
                of competent jurisdiction, or as reasonably necessary to
                effectuate a postjudgment judicial remedy, a debt collector
                may not communicate, in connection with the collection of
                any debt, with any person other than the consumer, his
                attorney, a consumer reporting agency if otherwise
                permitted by law, the creditor, the attorney of the creditor,
                or the attorney of the debt collector.
                                                  5
Appellate Case: 22-3006    Document: 010110784515        Date Filed: 12/16/2022   Page: 6



 Restatement (Second) of Torts § 652D (Am. L. Inst. 1977). “Publicity” means

 the information is conveyed “to the public at large, or to so many persons that the

 matter must be regarded as substantially certain to become one of public

 knowledge.” Id. cmt. a.

       The Eleventh Circuit recently rejected a similar argument in Hunstein v.

 Preferred Collection and Management Services, Inc. (Hunstein III),
48 F.4th 1236, 1240
 (11th Cir. 2022) (en banc). There, the plaintiff sued after a debt

 collector used an outside mailer to send a collection letter.
Id.
 A panel twice

 found he had standing. Hunstein I,
994 F.3d 1341
, 1348–49 (11th Cir. 2021)

 (pre-TransUnion); Hunstein II,
17 F.4th 1016, 1027
 (11th Cir. 2021) (post-

 TransUnion). But the en banc court concluded otherwise because the plaintiff

 failed to allege publicity and “without publicity, there is no invasion of privacy.”

 Hunstein III,
48 F.4th at 1245
. This means that without publicity, there is “no

 harm, at least not one that is at all similar to that suffered after a public

 disclosure.”
Id.
 The Eleventh Circuit observed the difference between private

 and public disclosure “is qualitative, not quantitative.”
Id. at 1249
.

       Like Hunstein, Shields failed to allege anything close to the required

 publicity element. She only alleged Professional Bureau disclosed her debt to its

 outside mailer—certainly not the public at large nor someone likely to widely

 communicate her debt. Shields did not have to plead and prove the tort’s

 elements to prevail. But to proceed, she had to at least allege a similar harm. For

 example, we recently found a plaintiff who received one improper call about her

                                            6
Appellate Case: 22-3006    Document: 010110784515        Date Filed: 12/16/2022    Page: 7



 alleged debt could pursue an FDCPA claim because her harm was analogous to

 the tort of intrusion upon seclusion. Lupia, 8 F.4th at 1191–92. Although a

 single call may have been insufficient for traditional tort liability, it was still the

 same kind of harm, i.e., an intrusion into her privacy. Id. at 1192.

       But here, Shields’s alleged harm was that one private entity (and,

 presumably, some of its employees) knew of her debt. That is not the same kind

 of harm as public disclosure of private facts, which is concerned with highly

 offensive information being widely known. See Restatement, supra, § 652D cmt.

 a (“[I]t is not an invasion of the right of privacy, within the rule stated in this

 Section, to communicate a fact concerning the plaintiff’s private life to a single

 person or even to a small group of persons.”). Like Hunstein, Shields alleged

 private—not public—disclosure.

       Beyond public disclosure, Shields briefly tries to link the statutory

 violation to intrusion upon seclusion. But she never alleged Professional Bureau

 intruded her “private solitude.” Cf. Lupia, 8 F.4th at 1191. She throws out other

 torts, like defamation, but fails to explain their relevance. See DePaula v. Easter

 Seals El Mirador,
859 F.3d 957, 967
 (10th Cir. 2017) (declining to consider

 inadequately briefed arguments). In short, Shields did not suffer a concrete

 injury when Professional Bureau used the outside mailer.

              2. Substance of the Letters

       The FDCPA also regulates how collectors communicate with consumers.

 Collectors may not falsely represent “the character, amount, or legal status of any

                                            7
Appellate Case: 22-3006   Document: 010110784515       Date Filed: 12/16/2022    Page: 8



 debt,” § 1692e(2)(A), or use “any false representation or deceptive means to

 collect or attempt to collect any debt or to obtain information concerning a

 consumer,” § 1692e(10). And “[w]ithin five days after the initial communication

 with a consumer in connection with the collection of any debt, a debt collector

 shall, unless . . . contained in the initial communication or the consumer has paid

 the debt, send the consumer a written notice containing the amount of the debt.”

 § 1692g(a)(1). Shields alleges Professional Bureau violated these provisions by

 not truthfully informing her about her debt balance and that the balance could

 increase.

       When Shields responded to Professional Bureau’s dismissal motion, she

 attached a declaration of facts to show the letters caused, among other injuries,

 detrimental reliance. The district court declined to consider the declaration

 because Professional Bureau facially challenged subject matter jurisdiction. A

 facial challenge “assumes the allegations in the complaint are true and argues

 they fail to establish jurisdiction,” while a factual challenge “goes beyond the

 allegations in the complaint and adduces evidence to contest jurisdiction.” Baker,
979 F.3d at 872
.

       Professional Bureau did not provide evidence outside the pleadings. By

 contrast, Shields tried to use the declaration to bolster her complaint and defeat

 the facial challenge. See Harty v. W. Point Realty, Inc.,
28 F.4th 435, 442
 (2d

 Cir. 2022). The district court did not abuse its discretion by not considering her

 declaration. See
id.

                                          8
Appellate Case: 22-3006   Document: 010110784515      Date Filed: 12/16/2022   Page: 9



       Confined to her complaint, Shields pleaded only that the letters were

 generally prejudicial to consumers and caused her to be confused and believe her

 debt was not accruing interest. But she never alleged the letters caused her to do

 anything. Her confusion and misunderstanding are insufficient to confer

 standing. See Pierre v. Midland Credit Mgmt., Inc.,
29 F.4th 934
, 939 (7th Cir.

 2022). And it would be unreasonable for a debtor in Shields’s position to believe

 that her debt would not continue to accrue interest, absent a well-pleaded

 allegation to the contrary.

       As a last attempt, Shields tries to link her alleged harms to common-law

 fraud. But fraud recognizes that harm may flow from relying on a

 misrepresentation, and Shields never pleaded reliance. See Trichell v. Midland

 Credit Mgmt., Inc.,
964 F.3d 990
, 998 (11th Cir. 2020). In other words, she did

 not allege the same kind of harm as required by the tort of fraud.

       In sum, Shields did not plead any concrete tangible or intangible harms.

       B. Post-Judgment Motions

       We review a district court’s rulings on Rule 59(e) and Rule 60(b)(6)

 motions and requests for leave to amend a complaint for an abuse of discretion.

 Nelson v. City of Albuquerque,
921 F.3d 925, 929
 (10th Cir. 2019); Kile v. United

 States,
915 F.3d 682, 688
 (10th Cir. 2019); Hertz v. Luzenac Grp.,
576 F.3d 1103, 1117
 (10th Cir. 2009).

       After the district court dismissed the case and entered judgment, Shields

 requested the court reopen the case, reconsider dismissal, and allow her to file an

                                          9
Appellate Case: 22-3006     Document: 010110784515        Date Filed: 12/16/2022    Page: 10



  amended complaint with the allegations contained in her declaration. She asserts

  she was entitled to relief because the Supreme Court issued TransUnion, the

  Eleventh Circuit issued Hunstein II, and she must pay to refile. Her arguments

  are unavailing.

        A party may move “to alter or amend a judgment.” Fed. R. Civ. P. 59(e).

  Such relief may be warranted because of “an intervening change in the controlling

  law” or “the need to correct clear error or prevent manifest injustice.” Servants of

  the Paraclete v. Does,
204 F.3d 1005, 1012
 (10th Cir. 2000). The court may also

  relieve a party from a final judgment for “any other reason that justifies relief.” Fed.

  R. Civ. P. 60(b)(6). Because Rule 60(b)(6) is “a grand reservoir of equitable power

  to do justice in a particular case,” a court may grant relief “only in extraordinary

  circumstances and only when necessary to accomplish justice.” Cashner v. Freedom

  Stores, Inc.,
98 F.3d 572, 579
 (10th Cir. 1996) (internal quotation marks omitted).

        First, assuming TransUnion changed the law of standing rather than

  explained Spokeo, it was not an intervening change. The Supreme Court issued

  its opinion before Shields responded to Professional Bureau’s motion. The

  district court even gave her additional time to respond because of TransUnion.

        Second, after the district court dismissed Shields’s complaint, the Eleventh

  Circuit issued Hunstein II, which found the plaintiff had standing. Obviously,

  this Eleventh Circuit case was not controlling (and not a change—it confirmed

  Hunstein I).



                                             10
Appellate Case: 22-3006   Document: 010110784515      Date Filed: 12/16/2022   Page: 11



        Third, Shields asserts the court should have reopened the case because she

  must pay filing and service fees to refile. But she had the burden to establish

  standing, so she bears the cost of her deficient pleading. Lujan, 504 U.S. at 560–

  61. It is not manifestly unjust nor an extraordinary circumstance that she must

  pay to refile.

        The district court did not abuse its discretion by denying Shields’s request

  to reopen the case and reconsider dismissal. And because it did not reopen the

  case, it properly declined to allow an amended complaint. See Combs v.

  PriceWaterhouseCoopers LLP,
382 F.3d 1196, 1205
 (10th Cir. 2004).

                                  III. Conclusion

        For the foregoing reasons, we affirm.




                                          11