United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES COURT OF APPEALS December 22, 2004
For the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 03-20834
POOJA GOSWAMI, Individually, and on behalf of all others
similarly situated,
Plaintiff-Appellant,
VERSUS
AMERICAN COLLECTIONS ENTERPRISE, INC.,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
ON PETITION FOR REHEARING
(Opinion July 28, 2004, 5th Cir. 2004, ___F.3d___)
Before DAVIS and PRADO, Circuit Judges.*
PER CURIAM:
Appellant, in his petition for rehearing, argues that the
panel opinion is inconsistent with Peter v. GC Servs., L.P., 310
F.3d 344 (5th Cir. 2002). We disagree because Peter is completely
distinguishable from our case. It is true that in Peter, the panel
*
Judge Pickering was a member of the original panel but retired
on December 8, 2004, and did not participate in this decision.
concluded that the language on the envelope violated § 1692f(8).
However, in Peter, the envelope from the collection agency bore the
return address of the U.S. Department of Education. The panel
concluded that impersonation of the Department of Education caused
the envelope to be in violation of this subsection and the court
focused on the debt collector’s deceptive practice of impersonating
the Department of Education. The panel in Peter relied on the
Senate Report to the FDCPA and stated:
The Senate Report accompanying the FDCPA explained that
the purpose of the act was “to protect consumers from a
host of unfair, harassing and deceptive debt collection
practices without imposing unnecessary restrictions on
ethical debt collectors.” S. REP. NO. 95-382, at 1-2,
reprinted in 1977 U.S. Code Cong. & Admin. News 1695,
1696. One of the deceptive practices Congress was
concerned about was “impersonating public officials”.
The panel explicitly declined to consider whether to adopt a
“benign language exception”1 because, under the facts, “any
implicit exception for benign language cannot be stretched to cover
that thoroughly disapproved practice.” Peter, (310 F.3d at 352).
It is also significant that since our opinion issued, the
Eighth Circuit in Strand v. Diversified Collection Services, 380
F.3d 316 (8th Cir. 2004), decided a case involving § 1692f(8), which
is completely consistent with our opinion. Thus, our research
1
See Peter, 310 F.3d at 351 (5th Cir. 2002), stating “We do not
need to reach the issue of whether § 1692f(8) implicitly includes
an exemption for benign language, since the Defendants’
impersonation of the Department of Education is certainly not
benign”.
2
discloses no reported case that is inconsistent with our opinion.
Treating the petition for rehearing en banc as a petition for
panel rehearing, the petition for panel rehearing is DENIED, and
the court, having been polled at the request of one of the members
of the court and a majority of the judges who are in regular active
service not having voted in favor, (Fed. R. App. P. And 5th Cir. R.
35), the Petition for Rehearing En Banc is also DENIED.**
**
Judge Clement is recused and did not participate in the
consideration of the petition for rehearing en banc.
3
JERRY E. SMITH, Circuit Judge, with whom DeMOSS, Circuit Judge, joins
dissenting from the denial of rehearing en banc:
The panel has made an erroneous interpretation of this im-
portant statute.2 More significantly, it has invented a new and
unusual means of interpreting statutes that have general intro-
ductory statements, or preambles, followed by specific provisions.
Because the court should have taken this matter en banc to correct
the error, I respectfully dissent.
The panel agrees, Goswami, 377 F.3d at 493, that the envelope
in question easily violates the plain wording of 15 U.S.C. §
1692f(8), which prohibits “using any language or symbol, other than
the debt collector’s address, on any envelope when communicating
with a consumer by use of the mails . . . .” Not only do the words
“Priority Letter” in a blue strip across the face of the envelope
run afoul of this specific proscription, but, as the panel
accurately acknowledges, the debt collector “admitted that the
markings on the envelope had been developed to entice debtors to
open the letter.” Goswami, 377 F.3d at 491.
The panel also correctly opines that “we do not look beyond
the plain meaning of the statute unless the statute is absurd or
2
See Goswami v. Am. Collections Enter., Inc., 377 F.3d 488,
492-94 (5th Cir. 2004). I dissent only in regard to the panel’s
result and reasoning regarding the words added to the envelope. I
express no view as to the content of the letter.
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ambiguous. Without ambiguity we are not permitted to look to the
legislative history or agency interpretation.” Id. at 492. The
panel finds ambiguity not in subsection 8, but by “read[ing] §
1692f(8) together with the opening paragraph or preface of
§ 1692f.” Id. at 493.
This is error. The preamble is extremely general and contains
only two terms that the panel employs to create ambiguity: that a
debt collector may not use “unfair or unconscionable means” to
collect a debt. No reported case, nor any regulation, nor the
legislative history, nor any agency interpretation or commentary
makes mention of the preamble to limit the reach of subsection 8,3
nor did the debt collector argue or suggest that the introductory
language should be considered at all. Use of the two general words
of the preamble (“unfair or unconscionable”) to overrule the
specific proscription of subsection 8 is purely a concoction of
the panel.4
3
One of the three district court cases on which the panel
relies, Masuda v. Thomas Richards & Co., 759 F. Supp. 1456 (C.D.
Cal. 1991), actually reads the introductory language to expand the
scope of the section beyond the proscriptions set forth in the
eight subsections of § 1692f. See id. at 1461 n.10.
4
Nor is consideration of the introductory language incompatible
with enforcement of subsection 8 as written. I assume even the
panel would agree that if it had wanted to, Congress could have
said that (1) a debt collector may not use “unfair or unconscion-
able means,” and (2) those words are “hereby defined to include
using any language other than the collector’s address.” If
Congress had done it that way, there is no doubt this plaintiff has
established a violation, because the envelope contravenes that
(continued...)
5
In contrast to the general language in the introduction,
subsection 8 is specific in prohibiting “any language or symbol”
other than an address. Although the panel fails even to mention
it, this matter should be controlled by the well-accepted inter-
pretive maxim that specific provisions prevail over general ones.5
It is a mystery why the panel did not even try to grapple with this
important rule. In light of the panel opinion, and this court’s
refusal to rehear it en banc, one is left to wonder whether this
bedrock of statutory interpretation retains viability in this
4
(...continued)
precise standard.
But in fact, that is exactly what Congress did do in this
statute, in language that is not much different. It said that (1)
a debt collector may not use “unfair or unconscionable means,” and
(2) the following conduct is a violation: using any language other
than the collector’s address.
5
“However inclusive may be the general language of a statute,
it will not be held to apply to a matter specifically dealt with in
another part of the same enactment . . . . Specific terms prevail
over the general in the same or another statute which otherwise
might be controlling.” Fourco Glass Co. v. Transmirra Corp., 353
U.S. 222, 228-29 (1957) (ellipses in original, internal quotations
and citation omitted). “As a fundamental rule of statutory
interpretation, specific provisions trump general provisions.”
Navarro-Miranda v. Ashcroft, 330 F.3d 672, 676 (5th Cir. 2003).
One basic principle of statutory construction is that where
two statutes appear to conflict, the statute addressing the
relevant matter in more specific terms governs. A similar
provision applies to interpretation of various sections of the
same enactment. A provision must be considered in context,
and the more specific provision within a statute prevails.
United States v. Neary (In re Armstrong), 206 F.3d 465, 470-71 (5th
Cir. 2000) (internal citations omitted).
6
circuit.
The panel opinion, moreover, is at odds with a recent opinion
of this court, Peter v. GC Servs., L.P., 310 F.3d 344 (5th Cir.
2002), which interprets the same subsection at issue
hereSS§ 1692f(8)SSbut reaches a contrary result. The Peter case was
briefed extensively to the panel, and the reader is left to guess
why the panel makes no reference to it.
In Peter, the plaintiff alleged that the debt collector (which
was collecting on a student loan) had violated subsection 8 by
including, on the envelope, the words “US Department of Education”
followed by a post office box address and the words “Official
Business/Penalty for Private Use, $300.” The panel in Peter noted,
310 F.3d at 351, that “[w]e may not look beyond the text of the
statute except in those rare instances where using the plain
meaning of the text creates an ‘absurd result’” (citation omitted).
The panel held that “if § 1692f(8) is read as a whole, no absurd
result ensues, meaning we need not inquire beyond the statutory
text.” Id.
Thus, the panel in Peter held that the envelope was a viola-
tion of the statute. That panel made no mention of the preamble on
which the Goswami panel so heavily relies. To the contrary, it
used only the explicit, unambiguous text of subpart 8 to decide the
issue.
Specifically in regard to another section of the same Act (§
7
1692e(14)), the panel in Peter noted that it was “enacted against
a backdrop of cases in which courts held that communications
designed to create a false sense of urgency were deceptive.” Id.
at 352. That conclusion logically applies to the entirely of the
Fair Debt Collection Practices Act, including § 1692f(8). Surely,
in the present case (Goswami), the inclusion, in a bright blue
strip, of the words “Priority Letter” on the envelope creates the
sort of false sense of urgency that the panel condemned in Peter.
Moreover, the Goswami panel holds that there is no violation
unless the envelope indicates that it “relate[s] to collection of
delinquent debts.” In imposing liability, the panel in Peter
logically decided to the contrary.
Curiously, although failing to mention the recent, binding
Fifth Circuit authority (Peter), the Goswami panel relies on three
district court opinions from California and Connecticut. In the
process of ignoring Peter, the panel, 377 F.3d at 493, invents a
new test for interpreting subsection 8: that it prohibits only
“markings that would signal that it is a debt collection letter and
tend to humiliate, threaten, or manipulate debtors.” This is pure
judicial legislation. The panel boldly makes up these words out of
whole cloth, reflecting, presumably, the scope the panel wishes the
statute to have.
These words find no basis in any reported case, or in the
statute, or in any regulations, legislative history, or agency in-
8
terpretation or commentary. The panel’s newly-enunciated test
would require a different result in Peter, because adding “US
Department of Education” to the envelope does not humiliate,
threaten, or manipulate. The conflicting results in Goswami and
Peter cannot be reconciled.
The panel opinion is pure legislation from the bench. The
opinion may have reached a result with which the panel feels com-
fortable, but it clouds this court’s statutory interpretation
jurisprudence, especially regarding whether a couple of general
words in a preface or preamble can be used by clever lawyers to
override specific provisions that unmistakably set forth the will
of Congress.
Parties and counsel now are in genuine doubt whether, as to
the statute at issue, Peter or Goswami represents the binding law
of the circuit. Because the court should take this case en banc to
reconcile the conflict, I respectfully dissent.
9