Gustav Buchholz v. Meyer Njus Tanick, PA

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0002p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

GUSTAV BUCHHOLZ, ┐
Plaintiff-Appellant, │
│
> No. 18-2261
v. │
│
│
MEYER NJUS TANICK, PA, │
Defendant-Appellee. │
┘

Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:18-cv-00607—Gordon J. Quist, District Judge.

Argued: June 20, 2019

Decided and Filed: January 3, 2020

Before: COOK, NALBANDIAN, and MURPHY, Circuit Judges.

_________________

COUNSEL

ARGUED: Philip D. Stern, STERN THOMASSON LLP, Springfield, New Jersey, for
Appellant. Kathleen H. Klaus, MADDIN HAUSER ROTH & HELLER, Southfield, Michigan,
for Appellee. ON BRIEF: Philip D. Stern, Andrew T. Thomasson, Francis R. Greene, STERN
THOMASSON LLP, Springfield, New Jersey, for Appellant. Kathleen H. Klaus, MADDIN
HAUSER ROTH & HELLER, Southfield, Michigan, for Appellee.

NALBANDIAN, J., delivered the opinion of the court in which COOK, J., joined, and
MURPHY, J., joined in part. MURPHY, J. (pp. 19–25), delivered a separate opinion concurring
in part and in the judgment.
 No. 18-2261 Buchholz v. Meyer Njus Tanick, PA Page 2

_________________

OPINION
_________________

NALBANDIAN, Circuit Judge. Gustav Buchholz received two letters from law firm
Meyer Njus Tanick, PA (“MNT”) about two debts he owed to Synchrony Bank. The letters,
which appeared on MNT letterhead and were signed by an MNT attorney, informed Buchholz
that MNT was acting as a debt collector and provided contact information for him to either
challenge or pay the debts. Buchholz does not dispute the debts, but he alleges that the letters
made him feel anxious and fear that MNT would sue him if he did not promptly pay.

So Buchholz sued MNT. Buchholz alleges that MNT violated the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., by giving the impression that an attorney
had reviewed his case and determined that he owed the debts. Buchholz alleges that MNT
processes so many debt collection letters each day that no MNT attorney could possibly engage
in a meaningful review of individual claims.

But Buchholz’s case fails before we can even consider its merits. Because Buchholz has
shown no injury in fact that is traceable to MNT’s challenged conduct, he lacks standing to sue,
and we lack jurisdiction to hear his case. We affirm the district court’s dismissal of Buchholz’s
complaint.

I.

Buchholz, a Michigan resident, received two letters in May 2018 about overdue payments
he owed on two accounts with Synchrony Bank.1 The letters came from MNT, a Minneapolis-
based law firm, and appeared on MNT’s letterhead. As Buchholz explains in his complaint, each
letter referred to a specific account, but the content is identical and “formulaic in nature,” save
for the “information regarding the specific account the letter was referencing.” (R. 12, First Am.
Compl. at ¶¶ 14–15.) MNT attorney Kara Harms signed both letters, but Buchholz alleges that

1One account was for a Walmart credit card. The other account was for a Sam’s Club personal credit
account.
 No. 18-2261 Buchholz v. Meyer Njus Tanick, PA Page 3

because the signatures are identical, MNT must have inserted “some sort of pre-populated or
stock signature.” (Id. at ¶ 17–18.)

Although MNT is a law firm, the letters do not threaten legal action. Indeed, the letters
purport to be “communication[s] [ ] from a debt collector” and explain that MNT “has been
retained to collect the above-referenced debt[s].” (See, e.g., R. 14-2, Letter.) Still, Buchholz
alleges that after he received the letters, he “felt an undue sense of anxiety that he would be
subjected to legal action if prompt payment was not made.” (R. 12, First Am. Compl. at ¶ 32.)
Because of that anxiety, Buchholz “conferred with his counsel” about MNT’s letters. (Id. at ¶
33.) And then Buchholz sued MNT.

Buchholz alleges that MNT violated the FDCPA—specifically, 15 U.S.C. § 1692e, e(3),
and e(10). His claim relies on a series of inferences, including that Synchrony Bank “clearly
works with [MNT] on a regular basis” and that Synchrony Bank has a “proportionally large
number of accounts that are subjected to collection activities.” (Id. at ¶ 23, 22.) Buchholz asks
the court to infer that because MNT works with Synchrony, MNT must send “a large number of
collection letters to consumers on a daily basis.” (Id. at ¶ 23.) And Buchholz alleges that
because Kara Harms (whose signature appears on the two letters he received) is MNT’s only
Michigan-based attorney, “it is unlikely” she devoted “much time to Plaintiff’s accounts, let
alone the additional letters she sends out on a daily basis.” (Id. at ¶ 29.) Indeed, Buchholz
claims that MNT processes such a high volume of debt-collection letters that Harms and other
MNT attorneys cannot engage “in a meaningful review of the underlying accounts prior to
determining whether to send the collection letters.” (Id. at ¶ 30). But the letters, which appear
on law firm letterhead, create the impression that the attorney “has reviewed the file and made
the professional, considered determination to send the letter.” (Id. at ¶ 41.) And this, according
to Buchholz, violates the FDCPA.

MNT moved to dismiss Buchholz’s complaint for lack of subject-matter jurisdiction and
for failing to state a claim. The district court granted MNT’s motion, holding that Buchholz
lacked standing to sue MNT. Alternatively, the court held that even if it had subject-matter
jurisdiction, it would have dismissed Buchholz’s complaint for failing to state a claim. Buchholz
appeals the dismissal of his complaint.
 No. 18-2261 Buchholz v. Meyer Njus Tanick, PA Page 4

II.

This court reviews de novo a district court’s dismissal of a complaint for lack of subject-
matter jurisdiction. See, e.g., Cartwright v. Garner, 751 F.3d 752, 760 (6th Cir. 2014). In doing
so, we take the allegations in the complaint as true. Id. at 759.

A.

Not all disputes have a home in federal court. Article III limits the judicial power to
resolving actual “Cases” and “Controversies,” not theoretical questions. U.S. Const. art. III, § 2.
And one “telltale” of a case or controversy is that “the parties have standing to bring it.” Hagy v.
Demers & Adams, 882 F.3d 616, 620 (6th Cir. 2018). Although the term “standing” does not
appear in Article III, our standing doctrine is “rooted in the traditional understanding of a case or
controversy” and limits “the category of litigants empowered to maintain a lawsuit in federal
court[.]” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). The effect is to confine “the
federal courts to a properly judicial role[.]” Id.

There are three elements to standing. The plaintiff “must have (1) suffered 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.” Id. The plaintiff carries the burden of
establishing those three elements, and at the pleading stage, the plaintiff must clearly allege facts
demonstrating each element. Id. Moreover, the injury in fact must be both “(a) concrete and
particularized, . . . and (b) actual or imminent, not conjectural or hypothetical[.]” Lujan v. Defs.
of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks and citations omitted).

Buchholz must first show that he has suffered an injury in fact, which itself includes two
sub-elements, concreteness and particularization. Id. The parties do not dispute that Buchholz’s
injury is particularized, but as the Supreme Court has repeatedly underscored, particularization is
not enough. Spokeo, 136 S. Ct. at 1548; Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158
(2014); Massachusetts v. EPA, 549 U.S. 497, 517 (2007). The injury must also be concrete, and
the parties dispute if the alleged injury here meets that criteria.
 No. 18-2261 Buchholz v. Meyer Njus Tanick, PA Page 5

A concrete injury is, like it sounds, “real and not abstract.” Spokeo, 136 S. Ct. at 1548
(punctuation and internal quotation marks omitted). But that does not mean all concrete injuries
must be tangible economic or physical harms. Spokeo noted that “intangible injuries can
nevertheless be concrete.” Id. at 1549. Specifically, the Court cited cases that vindicate First
Amendment values as examples in support. Id. (citing Pleasant Grove City v. Summum,
555 U.S. 460 (2009) (free speech); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520
(1993) (free exercise)); see also Rachel Bayefsky, Psychological Harm and Constitutional
Standing, 81 Brook. L. Rev. 1555, 1557 (2016) (“The idea that certain intangible interests can
count for Article III standing is by no means novel.”).

On the other hand, courts have recognized that there are, as there must be, limits on what
kinds of allegations of intangible harm satisfy Article III. The Spokeo Court held that “it is
instructive to consider whether an alleged intangible harm has a close relationship to a harm that
has traditionally been regarded as providing a basis for a lawsuit in English or American courts.”
136 S. Ct. at 1549. In Valley Forge Christian College v. Americans United for Separation of
Church and State, the Court held that the alleged “psychological consequence presumably
produced by observation of conduct with which one disagrees” is “not an injury sufficient to
confer standing under Art. III[.]” 454 U.S. 464, 485 (1982). And in Humane Society of United
States v. Babbitt, the court held that “general emotional ‘harm,’ no matter how deeply felt,
cannot suffice for injury-in-fact for standing purposes.” 46 F.3d 93, 98 (D.C. Cir. 1995). See
also Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 619–20 (2007) (Scalia, J.,
concurring in the judgment) (Courts should reject the “conceptualizing of injury in fact in purely
mental terms[.]”). And at least one commentator has noted that “the Supreme Court has not
directly analyzed the cognizability of psychological harm as injury-in-fact.” Bayefsky, supra, at
1557.

In addition, and relevant here, some concrete, intangible injuries may also flow from
statutory violations. Spokeo, 136 S. Ct. at 1549. Indeed, Congress may “define injuries and
articulate chains of causation that will give rise to a case or controversy where none existed
before[.]” Lujan, 504 U.S. at 580 (Kennedy, J., concurring in part and concurring in the
judgment). But again, there are restrictions. Though Congress may create new procedural rights
 No. 18-2261 Buchholz v. Meyer Njus Tanick, PA Page 6

and provide plaintiffs with causes of action to vindicate those rights, separation-of-powers
principles prevent Congress from expanding the scope of the judicial power beyond what Article
III permits. See Huff v. TeleCheck Servs., Inc., 923 F.3d 458, 464–65 (6th Cir. 2019). Congress
cannot confer standing on a plaintiff—and thus open the door to federal court—when the
plaintiff has not sustained an injury in fact; Article III’s standing requirements still apply.
Spokeo, 136 S. Ct. at 1549. As the Court explained, “Congress’[s] role in identifying and
elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact
requirement whenever a statute grants a person a statutory right and purports to authorize that
person to sue to vindicate that right.” Id. A plaintiff cannot “for example, allege a bare
procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement
of Article III.” Id.

The facts in Spokeo highlight this principle. Spokeo involved the Fair Credit Reporting
Act of 1970, 15 U.S.C. § 1681, et seq., which requires consumer credit reporting agencies to
“follow reasonable procedures to assure maximum possible accuracy of” consumer credit
reports. § 1681e(b). The statute provides consumers with a cause of action if a consumer
reporting agency violates their statutorily created procedural rights. But as the Court noted, not
all procedural violations rise to the level of an injury in fact:

A violation of one of the FCRA’s procedural requirements may result in no harm.
For example, even if a consumer reporting agency fails to provide the required
notice to a user of the agency’s consumer information, that information regardless
may be entirely accurate. In addition, not all inaccuracies cause harm or present
any material risk of harm. An example that comes readily to mind is an incorrect
zip code. It is difficult to imagine how the dissemination of an incorrect zip code,
without more, could work any concrete harm.

Spokeo, 136 S. Ct. at 1550. So when a reporting agency issues a credit report that misstates the
consumer’s zip code, the plaintiff may have a statutory ticket to federal court because, in a
hyper-literal sense, the agency failed to provide accurate information. But because the plaintiff
has not sustained an injury in fact, Article III keeps the court’s doors closed.2

2The Court in Spokeo did not hold that the plaintiffs lacked standing but instead remanded to the Ninth
Circuit, instructing that court to determine whether the plaintiff sustained a concrete injury.
 No. 18-2261 Buchholz v. Meyer Njus Tanick, PA Page 7

The Court acknowledged that some violations of procedural rights “can be sufficient in
some circumstances to constitute [an] injury in fact.” Id. at 1549. In those cases, the “risk of
real harm” can satisfy Article III’s concreteness requirement, and the plaintiff “need not allege
any additional harm beyond the one Congress has identified.” Id. The Court did not establish a
bright-line rule for when a procedural violation, by itself, rises to the level of an injury in fact,
and this court has since noted that “[i]t’s difficult, we recognize, to identify the line between
what Congress may, and may not, do in creating an ‘injury in fact.’” Hagy, 882 F.3d at 623. But
the Supreme Court explained that “both history and the judgment of Congress play important
roles” in determining whether an intangible injury is concrete. Spokeo, 136 S. Ct. at 1549.
Under that framework, on top of whether the alleged intangible harm has a “close relationship”
to traditional harms, courts must consider whether Congress has “identif[ied] and elevat[ed]” an
intangible harm. Id. “Congress[,]” the Court noted, “is well positioned to identify intangible
harms that meet minimum Article III requirements[.]” Id.

Spokeo suggests that Buchholz has two ways of proving an injury in fact flowing from
MNT’s alleged violation of the FDCPA. First, Buchholz could allege that MNT violated the
statute in a way that caused him concrete harm. Second, Buchholz could allege that MNT’s
violation of the statute did not cause tangible harm but created a risk of harm that Congress
intended to prevent. Buchholz makes both arguments. First, Buchholz claims that the anxiety he
felt from reading MNT’s letters and from fearing litigation is a concrete injury in fact. And
second, he argues that MNT’s alleged FDCPA violation, by itself, amounts to an injury in fact,
setting aside the anxiety he experienced.

Anxiety as Injury in Fact. It is far from clear that a bare allegation of anxiety is a
concrete injury. Buchholz cites no case from this court holding that anxiety, on its own, is an
injury in fact—and as best we can tell, no such case exists. Instead, Buchholz points us to non-
binding authority holding that a plaintiff could recover damages for emotional distress under the
FDCPA. As Buchholz notes, the Ninth Circuit held that a district court did not abuse its
discretion in denying a motion for a new trial after a jury awarded damages for emotional
distress in a FDCPA suit. McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939,
957 (9th Cir. 2011). There, a debt-collection law firm prosecuted a lawsuit against the plaintiff,
 No. 18-2261 Buchholz v. Meyer Njus Tanick, PA Page 8

even though the firm knew that the lawsuit was time-barred. Id. at 947. After the jury awarded
statutory and punitive damages, along with $250,000 for emotional distress, the defendants
moved for a new trial and then appealed the district court’s denial of that motion. Id. at 957.
The Ninth Circuit affirmed that decision, explaining that the FDCPA “provides for the award of
actual damages[,]” which could include damages for personal humiliation, embarrassment,
mental anguish, and emotional distress. Id.

Within our circuit, several district courts have held the same. One court allowed the
plaintiff to recover emotional-distress damages after a debt collector made repeated phone calls
to collect a disputed debt, warned that the plaintiff had committed a felony by failing to pay the
debt, and “stated she was outside the local county Sheriff’s Office and [ ] about to walk in to get
a warrant for [the] Plaintiff’s arrest.” Smith v. Reliant Grp. Debt Mgmt. Sols., 2018 WL
3753976, at *3 (E.D. Mich. Aug. 8, 2018). Likewise, a different district court held that the
plaintiff could recover damages for emotional distress where the debt collector threatened to
seize the plaintiff’s personal property and press criminal charges if the plaintiff did not pay in
twenty-four hours. Link v. Recovery Sols. Grp., L.L.C., 2018 WL 1980657, at *5 (E.D. Mich.
Apr. 27, 2018).

Buchholz asks us to infer from those cases that anxiety, in the context of the FDCPA, is a
cognizable injury. But those cases do not address the basis for the court’s subject-matter
jurisdiction. Thus, we cannot tell what the plaintiff’s injury in fact was. As Buchholz knows
well (and we discuss later), there are different ways to satisfy Article III’s injury-in-fact
requirement. Some procedural violations, by themselves, can amount to an injury in fact, even
when the plaintiff has not suffered a tangible injury. See Spokeo, 136 S. Ct. at 1550. And that
may well be what happened in those three cases, where the debt collector either knowingly
litigated a time-barred claim or where the debt collector threatened the consumer with arrest and
criminal prosecution unless the consumer paid promptly. Indeed, those violations alone may be
cognizable injuries, setting aside whatever additional injuries the plaintiffs may have suffered.
So we cannot infer from those three cases that the anxiety Buchholz has alleged is an injury in
fact.
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Moreover, in those cases, the emotional distresses were accompanied by corroborating
allegations that established more than bare anxiety. This makes sense. Spokeo instructs us to look
to traditional harms when assessing allegations of intangible harm. And in the context of
psychological injuries, alleging “anxiety” alone appears to fall short of cognizable injury as a
matter of general tort law. One source, for example, defines psychological injury as “the result
of exposure to an incident that is mentally and emotionally traumatic because the incident
presents a threat to the plaintiff’s life: to health, to control over one’s life, to peace of mind and
enjoyment of life, or even the threat of death itself.” 26 Am. Jur. Proof of Facts 3d 1 n.3 (1994).
Similarly, under the Restatement:

Emotional distress passes under various names, such as mental suffering, mental
anguish, mental or nervous shock, or the like. It includes all highly unpleasant
mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment,
anger, chagrin, disappointment, worry, and nausea. It is only where it is extreme
that the liability arises.

Restatement (Second) of Torts § 46 (1965).

To be fair, the Restatement (Third) of Torts: Physical and Emotional Harm § 45 (2012)
broadly defines “emotional harm” to mean “impairment or injury to a person’s emotional
tranquility.” And a comment notes that this harm “encompasses a variety of mental states,
including . . . anxiety . . . .” Id. § 45 cmt. a. Nevertheless, that Restatement defines the possible
liability for emotional harm narrowly to exclude mere anxiety: “An actor who by extreme and
outrageous conduct intentionally or recklessly causes severe emotional harm to another is subject
to liability for that emotional harm and, if the emotional harm causes bodily harm, also for the
bodily harm.” Id. § 46. So the conduct must be “extreme and outrageous” and the emotional
harm must be “severe.” In other words, “[a] great deal of conduct may cause emotional harm,
but the requisite conduct for this claim—extreme and outrageous—describes a very small slice
of human behavior. The requirement that the resulting harm be severe further limits claims.” Id.
§ 46 cmt. a. Looking to traditional harms here does not help Buchholz.
 No. 18-2261 Buchholz v. Meyer Njus Tanick, PA Page 10

Thus, Buchholz’s failure to allege anything other than anxiety makes us skeptical about
whether he has established an injury in fact.3 In addition, we are reluctant to find that what the
Supreme Court held in Spokeo⸺that an allegation of a “bare procedural violation” cannot satisfy
Article III⸺can be undone by the simple addition of one word to a pleading.

Nevertheless, we need not decide whether a bare anxiety allegation, in the abstract, fails
to satisfy the injury-in-fact requirement. Buchholz fails to establish his Article III standing for
other reasons more specifically related to his complaint.

Indeed, Buchholz fails a different aspect of the injury-in-fact analysis. His problem is
that his anxiety, as alleged, amounts to the fear of a future harm—an “injury” that is rarely
cognizable. After Buchholz received MNT’s letters, he allegedly “felt an undue sense of anxiety
that he would be subjected to legal action if prompt payment [on his debts] was not made.”
(R. 12, First Am. Compl. ¶ 32 (emphasis added).) In other words, Buchholz was nervous about
being sued at some point in the future.

But the Supreme Court has explained that the fear of a future harm is not an injury in fact
unless the future harm is “certainly impending.” Clapper v. Amnesty Int’l USA, 568 U.S. 398,
410 (2013). That case addressed a constitutional challenge to the Foreign Intelligence
Surveillance Act of 1978, which authorizes government surveillance of certain foreigners located
outside the United States. Id. at 401. The challengers, a group of attorneys and human rights
advocates, alleged several injuries in fact, including their fear that the government would
monitor their communications with foreign contacts. Id. at 410. But because it was far from
certain that the government would intercept any of the challengers’ communications, the Court
described the challengers’ alleged injury as a “highly speculative fear” that was not cognizable.
Id. When a plaintiff claims to have standing based on the threat of a future injury, it is not
enough that the future injury is reasonably likely to occur—the “threatened injury must be
certainly impending.” Id.

3We are mindful of the Supreme Court’s admonition that we must keep the merits of his claim separate
from the standing question. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 96 (1998) (explaining the
“fundamental distinction” between the merits and standing). Buchholz’s failure to allege what would amount to a
plausible merits claim of emotional distress at common law seems, perhaps, more suited to the former inquiry and
not the latter.
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Buchholz lacks standing under Clapper because the threat of litigation was not “certainly
impending” when Buchholz filed his complaint. MNT’s letters do not threaten litigation, nor has
Buchholz alleged that he received any other communications from MNT warning that a lawsuit
was forthcoming. And most importantly, Buchholz has not alleged that he refuses to pay what
MNT says he owes. Rather, he fears what might happen if he does not pay. So far as we know,
Buchholz might decide to pay his debts, warding off any prospect of litigation. Because
Buchholz has neither alleged that MNT has threatened to sue him nor that he refuses to pay his
debts, we cannot infer that litigation is “certainly impending.”

Finally, a plaintiff cannot create an injury by taking precautionary measures against a
speculative fear. The Clapper challengers offered another theory of standing, explaining that
they had incurred “costly and burdensome measures to protect the confidentiality of sensitive
communications.” Id. at 407 (internal quotation marks and citation omitted). The Court rejected
that basis for standing, too, underscoring that the harm the challengers sought to avoid was “not
certainly impending.” Id. at 416. Plaintiffs “cannot manufacture standing merely by inflicting
harm on themselves based on their fears of hypothetical future harm that is not certainly
impending.” Id. So Buchholz cannot claim—nor does he—that his meetings with his attorney
amount to an injury in fact. Thus, Buchholz’s allegation of anxiety falls short of the injury-in-
fact requirement because it amounts to an allegation of fear of something that may or may not
occur in the future.

Next, even if Buchholz’s anxiety allegation could satisfy the injury-in-fact requirement,
Buchholz must still satisfy the two remaining standing prerequisites: traceability and
redressability. On this front, Buchholz comes up short again. MNT argues that Buchholz’s
sense of anxiety is “nothing other than the anxiety he would feel in facing debt collection,” not
because of anything specific to the letters. (Appellee Br. at 27.) In other words, Buchholz is
anxious about the consequences of his decision to not pay the debts that he does not dispute he
owes.

Buchholz’s alleged injury looks like a self-inflicted injury, in which case he lacks
standing to sue MNT. The D.C. Circuit, for example, has repeatedly stated that self-inflicted
injuries are not even injuries in fact. Pub. Citizen, Inc. v. Nat’l Highway Traffic Safety Admin.,
 No. 18-2261 Buchholz v. Meyer Njus Tanick, PA Page 12

489 F.3d 1279, 1290 (D.C. Cir. 2007) (Kavanaugh, J.); Nat’l Family Planning & Reprod. Health
Ass’n, Inc. v. Gonzales, 468 F.3d 826, 831 (D.C. Cir. 2006); Fair Emp’t Council of Greater
Washington, Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1276–77 (D.C. Cir. 1994). But the real
point is that a self-inflicted injury fails the second standing prerequisite, traceability. The
plaintiff must show “a fairly traceable connection between the plaintiff’s injury and the
complained-of conduct of the defendant.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
103 (1998); see also Warth v. Seldin, 422 U.S. 490, 505 (1975) (To satisfy Article III, plaintiff
must show “the asserted injury was the consequence of the defendants’ actions[.]”). But if the
plaintiff caused his own injury, he cannot draw a connection between that injury and the
defendant’s challenged conduct. A self-inflicted injury, by definition, is not traceable to anyone
but the plaintiff.

This court has not addressed when an injury is self-inflicted, but other courts and treatises
offer guidance. The standard for establishing traceability for standing purposes is less
demanding than the standard for proving tort causation. Pub. Interest Research Grp. of N.J., Inc.
v. Powell Duffryn Terminals Inc., 913 F.2d 64, 72 (3d Cir. 1990). At the pleading stage, the
plaintiff’s burden of “alleging that their injury is ‘fairly traceable’” to the defendant’s challenged
conduct is “relatively modest[.]” Bennett v. Spear, 520 U.S. 154, 171 (1997). Thus, harms that
flow “indirectly from the action in question can be said to be ‘fairly traceable’ to that action for
standing purposes.” Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263,
1273 (11th Cir. 2003).

Still, there are cases when a plaintiff will fail to meet the traceability standard, such as
when an injury is “so completely due to the [plaintiff’s] own fault as to break the causal chain.”
Petro-Chem Processing, Inc. v. E.P.A., 866 F.2d 433, 438 (D.C. Cir. 1989) (quoting 13 Wright,
Miller & Cooper, Federal Practice and Procedure § 3531.5, at 458 (2d ed. 1984)). To give an
example, the D.C. Circuit held that two plaintiffs could not obtain injunctive relief against their
former employer because their injury was self-inflicted. Taylor v. F.D.I.C., 132 F.3d 753, 759
(D.C. Cir. 1997). In that case, an employer reassigned the plaintiffs to a less desirable division
after the plaintiffs expressed concerns about an internal reorganization. Id. The employees
ultimately resigned and then sued, requesting reassignment to the positions they held before
 No. 18-2261 Buchholz v. Meyer Njus Tanick, PA Page 13

criticizing the reorganization. Id. at 766. The D.C. Circuit noted that although the plaintiffs may
have only formally requested reassignment to their old jobs, they effectively sought
reinstatement to the company on top of reassignment. But because the plaintiffs departed the
company voluntarily, they had “create[d] a large hole in their cause of action: In requesting
reinstatement, they seek a remedy for injury that is in large part self-inflicted.” Id. at 767.

For his first alleged injury in fact, Buchholz does not dispute that he owed the debts, nor
does he allege that MNT’s letters contained any inaccuracies. To be sure, MNT’s letters made
clear that Buchholz’s creditors had not forgotten about him. But the anxiety Buchholz alleges is
not because of anything MNT wrote. He alleges an “undue sense of anxiety that he would be
subjected to legal action if prompt payment was not made” on his debts. (R. 12, First Am.
Compl. at ¶ 32 (emphasis added).) The cause of that anxiety falls squarely on Buchholz because
he chose not to pay his debts—and now fears the consequences of his delinquency. So even if
anxiety is a cognizable injury—and we have our doubts—the anxiety that Buchholz alleges is not
traceable to anyone but him. For these reasons, Buchholz cannot establish standing based on his
allegations of anxiety.4

Procedural Violation as Injury in Fact. Buchholz has one other possible injury in fact:
MNT’s alleged FDCPA violation. Buchholz claims that MNT violated the FDCPA’s prohibition
of the “false representation or implication that any individual is an attorney or that any
communication is from an attorney” when it sent two letters suggesting that an attorney had
formed a professional legal opinion that he owed the two debts. 15 U.S.C. § 1692e(3). And
Buchholz argues that this violation, by itself, is an injury in fact.

Congress may create procedural rights and provide parties with a cause of action to
vindicate their rights. It did so with the FDCPA, which allows consumers to sue “any debt
collector who fails to comply with any provision [of the FDCPA.]” 15 U.S.C. § 1692k(a). But
just because a plaintiff alleges a procedural violation does not mean the plaintiff has
constitutional standing. Spokeo, 136 S. Ct. at 1549. No matter what Congress provides by

4This also stands in direct contrast with the emotional distress that plaintiffs have recovered for in other
cases because that distress is directly traceable to the defendants’ debt-collecting conduct.
 No. 18-2261 Buchholz v. Meyer Njus Tanick, PA Page 14

statute, the plaintiff must still satisfy Article III’s standing prerequisites, including the injury-in-
fact requirement. Id.

Spokeo makes this principle clear. The relevant statute in Spokeo—the Fair Credit
Reporting Act—regulates creating consumer credit reports and requires credit reporting agencies
to engage in “fair and accurate credit reporting.” 15 U.S.C. § 1681(a)(1). And like the FDCPA,
that statute provides consumers with a cause of action to sue any party that “willfully fails to
comply with any requirement” of the Act. 15 U.S.C. § 1681n(a). But not all violations of the
Fair Credit Reporting Act are injuries in fact. See, e.g., Spokeo, 136 S. Ct. at 1550 (“It is
difficult to imagine how the dissemination of an incorrect zip code, without more, could work
any concrete harm.”). A bare procedural violation, “divorced from any concrete harm,” cannot
satisfy Article III’s injury-in-fact requirement, even if the plaintiff has a statutory basis for
litigating the claim in federal court. Id. at 1549.

The upshot of Spokeo is that not all procedural violations open the door to federal court.
But some do, even when the procedural violation causes only an intangible injury. Id. Congress
may choose to “identify[] and elevat[e]” certain intangible, concrete harms by statute. Id. That
is not to say that Congress can, by statute, declare an injury concrete when the injury is, in fact,
abstract and non-cognizable. But Congress may provide procedural rights that protect concrete
interests, along with causes of action that allow plaintiffs to vindicate their rights. So if the
plaintiff alleges a violation of a procedural right that protects a concrete interest, the plaintiff
“need not allege any additional harm beyond the one Congress has identified.” Id.

Spokeo tells us to consider two factors to determine whether an intangible injury is
cognizable. First, we consider congressional judgment. Id. Because Congress is “well
positioned to identify intangible harms that meet minimum Article III requirements,” its decision
to create certain procedural rights and causes of action is “instructive and important.” Id. So we
look to “whether Congress conferred the procedural right in order to protect an individual’s
concrete interests.” Macy v. GC Servs. Ltd. P’ship, 897 F.3d 747, 754 (6th Cir. 2018) (internal
quotation marks omitted) (quoting Strubel v. Comenity Bank, 842 F.3d 181, 189 (2d Cir. 2016)).
 No. 18-2261 Buchholz v. Meyer Njus Tanick, PA Page 15

Although Congress’s judgment may be informative, Spokeo explains, it is not
determinative. That brings us to the second factor, the common law. An intangible harm that is
analogous to a harm recognized at common law signals that the harm is cognizable. To that end,
we consider traditional harms under English and American law. Spokeo, 136 S. Ct. at 1549.

Three recent, post-Spokeo decisions—two from this court, the other from the Eighth
Circuit—help further clarify when an FDCPA violation creates an injury in fact. In Hagy, we
held that the plaintiffs lacked standing because they suffered no harm—tangible or intangible—
from the alleged procedural violation. 882 F.3d at 618. Having defaulted on a loan, the
plaintiffs in Hagy contacted their creditor to try to work out a payment agreement, and they
succeeded: the creditor’s attorney wrote the plaintiffs’ attorney to say that the plaintiffs were no
longer responsible for the remaining balance on the loan. Id. at 618–19. But under the FDCPA,
debt collectors must identify themselves as such when communicating with consumers, and the
creditor’s attorney failed to do so in his correspondence with the plaintiffs’ attorney. Id.
(discussing 15 U.S.C. § 1692e(11)). So even though the creditor’s attorney relieved them of
their obligation to pay, the plaintiffs sued the attorney for violating the FDCPA.

We held that the plaintiffs lacked standing because they did not (and could not) allege
any harm from the creditor’s procedural violation. Id. at 623. The creditor’s attorney delivered
good news, essentially eliminating the plaintiffs’ debt, so no harm could have come from that
communication. That is not to say that a violation of § 1692e(11) can never cause an injury in
fact, just that it does not necessarily create a cognizable injury. Whether a procedural violation
is cognizable depends on the particular circumstances of the case. And based on the record in
Hagy, we could not see “how the [creditor attorney’s] letter did anything other than help the
[plaintiffs].” Id. at 622.

Macy, another FDCPA case published several months after Hagy, falls on the other end
of the spectrum: the Macy plaintiffs alleged a procedural violation that turned out to be an injury
in fact. 897 F.3d at 761. Those plaintiffs received a debt-collection letter explaining that they
could dispute their debt within 30 days—and that if they did so, the debt collector would provide
them with verification of the debt’s validity. Id. at 751. But the debt collector neglected to
inform the plaintiffs that it was legally obligated to provide that verification only if the plaintiffs
 No. 18-2261 Buchholz v. Meyer Njus Tanick, PA Page 16

contested the debt in writing. Id.5 The plaintiffs sued, and the defendants challenged the court’s
subject-matter jurisdiction, arguing that the plaintiffs had not suffered an injury in fact.
We rejected that challenge and held that the plaintiffs had standing because the debt collectors’
misstatement could have led the plaintiffs to contest the debt orally and waive some of the
FDCPA’s other protections of their concrete interests. Id. at 758. For example, if the plaintiffs
had disputed their debts orally and requested verification of the debt’s validity, the debt collector
could have continued to demand payment from the plaintiffs without first providing evidence
that the debt was, in fact, valid. Id. In short, the defendant’s letter placed the plaintiffs “at a
materially greater risk of falling victim to ‘abusive debt collection practices.’” Id. (quoting
15 U.S.C. § 1692(e)).

Finally, the Eighth Circuit held that an alleged FDCPA violation was an injury in fact
because the plaintiff alleged a harm that Congress intended to prevent and that bears a close
relationship to harms recognized at common law. Demarais v. Gurstel Chargo, P.A., 869 F.3d
685 (8th Cir. 2017). The dispute in Demarais began in state court, where a debt-collection firm
filed a complaint to collect a consumer debt. Id. at 689. The consumer did not answer the
complaint, but rather than file a default judgment, the debt-collection firm asked the court to set
the case for trial, thinking that the consumer would not appear.6 On the date of trial, however,
the consumer appeared with an attorney, ready to litigate. The debt-collection firm, on the other
hand, had not prepared, assuming that the consumer would not show. Caught flatfooted, the
debt-collection firm ultimately moved to dismiss the complaint with prejudice. Id. at 690. But
several weeks later, the debt-collection firm sent the consumer a letter demanding payment on
the debt, along with interrogatories and requests for admission, and told the consumer to respond
in 30 days. Id.

5Under 15 U.S.C. § 1692g(a)(4), the debt collector must notify the consumer of its obligation to obtain
verification of the debt and mail that verification to the consumer if the consumer disputes the debt in writing. And
under 15 U.S.C. § 1692g(a)(5), the debt collector must provide the consumer with the name and address of the
original creditor—again only if the consumer disputes the debt in writing.
6The plaintiff alleged that under Minnesota law, obtaining a judgment for non-appearance at trial is easier
than obtaining a default judgment on a consumer debt when the consumer fails to answer a complaint. Demarais v.
Gurstel Chargo, P.A., 869 F.3d 685, 689 (8th Cir. 2017)
 No. 18-2261 Buchholz v. Meyer Njus Tanick, PA Page 17

After receiving that letter, the consumer sued the debt-collection firm in federal court,
alleging that the firm violated the FDCPA by trying to collect a debt not “permitted by law.” See
15 U.S.C. § 1692f(1). The debt-collection firm argued that the plaintiff, who had alleged only
intangible injuries, had not shown a concrete injury in fact, so the court considered Spokeo’s two
factors. On the first factor, congressional judgment, the court noted that Congress had
“identified a harm—being subjected to attempts to collect debts not owed[,]” and that Congress
created a procedural right to “be free from attempts to collect debts not owed, helping to guard
against identified harms.” Demarais, 869 F.3d at 691–92. And on the common law, the court
explained that the harm Congress identified—being asked to pay a debt not owed—resembles
“the harm suffered by victims of the common-law torts of malicious prosecution, wrongful use
of civil proceedings, and abuse of process.” Id. at 691. Having alleged a harm that Congress
intended to prevent—and that resembled a harm recognized at common law—the plaintiff
satisfied Article III’s injury-in-fact requirement. Id. at 692.

Buchholz claims that MNT’s alleged procedural violation caused a concrete—though
intangible—injury. So we consider the two factors from Spokeo, congressional judgment and the
common law, to determine whether the procedural violation is cognizable. Buchholz argues—
and we do not disagree—that Congress passed the FDCPA to prevent debt collectors from
engaging in abusive debt-collection practices. But even assuming MNT violated the statute by
misrepresenting that an attorney had reviewed Buchholz’s debts, we find ourselves, like we were
in Hagy, unable to identify any harm to come from that violation. Buchholz gives us no reason
to believe he did not owe the debts. He does not allege, for example, that the statute of
limitations has expired, that res judicata precludes MNT from collecting the debts, or even that
MNT miscalculated the amounts he allegedly owes. Nor does he allege, like the plaintiffs in
Macy, any omissions or misstatements in the letters that could have caused him to waive some of
his procedural rights under the FDCPA. The letters simply informed Buchholz of the two debts
and contained boilerplate language—required under the FDCPA—about how to pay or challenge
the debts. And to be sure, Buchholz has not alleged that MNT threatened him with arrest or
criminal prosecution, as the debt collectors did in Smith and Link. We are at a loss for how
MNT’s letters caused any harm, much less harm that Congress intended to prevent when it
enacted the FDCPA.
 No. 18-2261 Buchholz v. Meyer Njus Tanick, PA Page 18

As to the second Spokeo factor, the common law, Buchholz comes up short again.
Buchholz makes no argument that the injury he suffered is like a harm that the common law
recognizes. Nor could he. MNT’s letters do not even mention litigation, so any comparison to
abuse of process would be inapt. Malicious prosecution does not fit, either, because Buchholz
has not alleged that MNT ever threatened him with arrest, criminal prosecution, or civil
litigation. Nor does intentional infliction of emotional distress, as we discuss above, which
requires conduct “so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Restatement (Second) of Torts § 46, cmt. d (1965). MNT’s letters cannot possibly
rise to that level. Buchholz’s failure to identify an analogous harm and corresponding common
law cause of action—and our inability to identify one on his behalf—is another signal that his
alleged harm is not cognizable.

Because Buchholz has not shown that he suffered a harm Congress intended to prevent or
that is analogous to a harm that the common law recognizes, he cannot prevail on the theory that
MNT’s procedural violation, by itself, is an injury in fact.

III.

Buchholz has failed to allege a concrete injury in fact fairly traceable to MNT’s
challenged conduct. Thus, he lacks standing to bring this claim, and we lack subject-matter
jurisdiction to consider it. For that reason, we decline to address MNT’s alternative argument
that Buchholz has failed to state a claim. We AFFIRM.
 No. 18-2261 Buchholz v. Meyer Njus Tanick, PA Page 19

______________________________________________________

CONCURRING IN PART AND IN THE JUDGMENT
______________________________________________________

MURPHY, Circuit Judge, concurring in part and concurring in the judgment. The court
offers a thoughtful discussion of difficult standing questions, and I concur in a part of its opinion.
The court rightly holds that, under current pleading rules, Gustav Buchholz did not plausibly
allege that his anxiety was caused by the (purportedly) illegal conduct of Meyer Njus Tanick,
PA. And the court rightly holds that, under current Supreme Court precedent, a violation of the
Fair Debt Collection Practices Act does not automatically create standing. I cannot, however,
join in the parts of the opinion that express doubt over whether mental anxiety can create a
“Case” or “Controversy” under Article III of the Constitution. I therefore concur in the
judgment, as I believe that mental harm can produce an Article III case. I write to briefly explain
my thinking.

I begin with the basics. Article III grants only the “judicial Power” to federal courts and
permits those courts to exercise this power only in “Cases” or “Controversies.” U.S. Const. art.
III, §§ 1–2. These words place real limits on the judicial branch’s power to intervene in people’s
lives through the resolution of (often weighty) legal issues. Cf. In re 2016 Primary Election, 836
F.3d 584, 587–88 (6th Cir. 2016). That has been true since the founding. When President
Washington asked the Supreme Court for a legal opinion apart from a pending “case,” the
Justices replied that the “lines of separation drawn by the Constitution between the three”
branches of government prevented them from giving that sort of advice. 3 Henry P. Johnston,
The Correspondence and Public Papers of John Jay 488 (1891); see 3 Joseph Story,
Commentaries on the Constitution of the United States § 1565 & n.3, at 420 (1833). The rule
against “advisory opinions” has been in place ever since. See Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 101 (1998); United States v. Fruehauf, 365 U.S. 146, 157 (1961); United
States v. Evans, 213 U.S. 297, 300–01 (1909).

With this judicial limit secure, the Supreme Court next needed “to distinguish requests
for advisory opinions” that courts must decline from the “true ‘Cases’ and ‘Controversies’” that
they may entertain. Ann Woolhandler & Caleb Nelson, Does History Defeat Standing
 No. 18-2261 Buchholz v. Meyer Njus Tanick, PA Page 20

Doctrine?, 102 Mich. L. Rev. 689, 722 (2016). The Court has defined these terms with an eye
toward history, holding that they refer to disputes “of the sort traditionally amenable to, and
resolved by, the judicial process.” Steel Co., 523 U.S. at 102 (citing Muskrat v. United States,
219 U.S. 346, 356–57 (1911)). In other words, the judicial power “come[s] into play only in
matters that were the traditional concern of the courts at Westminster and only if they arose in
ways that to the expert feel of lawyers constituted ‘Cases’ or ‘Controversies.’” Vt. Agency of
Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 774 (2000) (quoting Coleman v. Miller, 307 U.S.
433, 460 (1939) (Frankfurter, J., concurring)).

The concept that now goes by “standing” (but that existed well before that label) is one of
the “doctrine[s] rooted in the traditional understanding of a case or controversy.” Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547 (2016); see Woolhandler & Nelson, supra, at 691. The Supreme
Court’s cases have gradually molded this doctrine into the test we know today: To sue, a plaintiff
“must have (1) suffered 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,
136 S. Ct. at 1547. Its cases have further developed the test’s injury element to require the
“invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual
or imminent.’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations omitted).

When applying this modern test, though, the Court has not lost sight of evidence about
what has historically made out a “case.” E.g., Sprint Commc’ns Co. v. APCC Servs., Inc., 554
U.S. 269, 274–85 (2008); Vt. Agency, 529 U.S. at 773–78. Take the injury-in-fact element. The
Court has not considered whether an asserted injury qualifies as “concrete” using judicial
intuition alone. It has instead considered whether the injury “has a close relationship to a harm
that has traditionally been regarded as providing a basis for a lawsuit in English or American
courts.” Spokeo, 136 S. Ct. at 1549. That makes good sense. An “accepted tradition” that courts
can redress a certain type of injury should “not to be laid on the examining table and scrutinized
for its conformity to” the concrete-injury element more recently devised by the Court. See Rita
v. United States, 551 U.S. 338, 379 (2007) (Scalia, J., concurring in part and concurring in the
judgment) (citation omitted). No, “such traditions are themselves the stuff out of which” the
meaning of that element should be formed. See id. (citation omitted). Here, as elsewhere, “[a]ny
 No. 18-2261 Buchholz v. Meyer Njus Tanick, PA Page 21

test the Court adopts must acknowledge a practice that was accepted by the Framers and has
withstood the critical scrutiny of time and political change.” Town of Greece v. Galloway, 572
U.S. 565, 577 (2014); see Burnham v. Super. Ct. of Cal., 495 U.S. 604, 619 (1990) (plurality
op.).

How does this analysis play out for mental distress? In my view, it depends on the nature
of the actions that cause the distress. Compare two examples. In the first, the government agrees
to transfer its property to a religious college. Bystanders to this transfer sue to stop it, claiming
as their injury the distress caused from knowing that their government is violating the
Establishment Clause. See Valley Forge Christian Coll. v. Ams. United for Separation of Church
& State, Inc., 454 U.S. 464, 485 (1982). In the second, a group pickets outside the funeral of a
soldier killed in Afghanistan using odious language like “Thank God for Dead Soldiers.” The
soldier’s father sues the group for the intentional infliction of emotional distress, claiming as his
injury the distress caused by their conduct. See Snyder v. Phelps, 562 U.S. 443, 448–50 (2011).
I tend to think that the former allegations do not suffice whereas the latter allegations likely do.
Why? When it comes to whether mental harms can establish an Article III case, I read Supreme
Court precedent as resembling Justice Thomas’s recent proposal to distinguish between an
alleged violation of a public right (like the first example) and an alleged violation of a private
right (like the second example). Spokeo, 136 S. Ct. at 1550–53 (Thomas, J., concurring). That
precedent suggests that mental harms arising from the violation of only personal rights create
Article III cases.

Start with the public-rights example. See Valley Forge, 454 U.S. at 485. The Supreme
Court has “consistently held that a plaintiff raising only a generally available grievance about
government—claiming only harm to his and every citizen’s interest in proper application of the
Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it
does the public at large—does not state an Article III case or controversy.” Lance v. Coffman,
549 U.S. 437, 439 (2007) (per curiam) (citation omitted); Schlesinger v. Reservists Comm. to
Stop the War, 418 U.S. 208, 225–26 (1974); Ex parte Levitt, 302 U.S. 633, 635–36 (1937) (per
curiam); Fairchild v. Hughes, 258 U.S. 126, 129–30 (1922); cf. Kanuszewski v. Mich. Dep’t of
Health & Human Servs., 927 F.3d 396, 426 (6th Cir. 2019) (Rogers, J., concurring). Even when
 No. 18-2261 Buchholz v. Meyer Njus Tanick, PA Page 22

the government’s alleged violation of a law produces mental distress in the party who seeks to
challenge it, that sort of “psychological” trauma alone “is not an injury sufficient to confer
standing under Art. III.” Valley Forge, 454 U.S. at 485. So the Supreme Court has dismissed
suits challenging government conduct when parties not directly affected by that conduct have
asserted mental harms like the stigma from racial discrimination, Allen v. Wright, 468 U.S. 737,
755 (1984), or the discomfort from knowing that a species may go extinct, Lujan, 504 U.S. at
562–64; see ASARCO Inc. v. Kadish, 490 U.S. 605, 616 (1989) (plurality op.). (The offense for
those who come across public monuments with a religious cast may or may not fall within this
category too. See Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2098–100 (2019)
(Gorsuch, J., concurring in the judgment).)

Turn to the private-rights example. See Snyder, 562 U.S. at 448. The Supreme Court has
recognized that an “intangible harm” can qualify as an Article III injury. See Spokeo, 136 S. Ct.
at 1549; Sierra Club v. Morton, 405 U.S. 727, 738 (1972). If a plaintiff’s claim is sufficiently
particularized (or, in Justice Thomas’s view, if the plaintiff asserts the violation of a private
right), I tend to think that mental distress satisfies any additional concreteness requirement.
I reach that conclusion for a simple reason: It comports with a long tradition of allowing
plaintiffs to sue for mental-distress damages. Cf. Vt. Agency, 529 U.S. at 773–78. “Distress,”
including “mental suffering or emotional anguish,” “is a personal injury familiar to the law,
customarily proved by showing the nature and circumstances of the wrong and its effect on the
plaintiff.” Carey v. Piphus, 435 U.S. 247, 263–64 & n.20 (1978). Recovery for that type of
injury has been part of our common-law tradition for centuries. See, e.g., Joseph Henry Beale,
Collection of Cases on the Measure of Damages 337–63 (1895) (collecting cases); see also
Arthur G. Sedgwick, Elements of Damages: A Handbook for the Use of Students and
Practitioners 98–105 (1896). “In a variety of actions founded on personal torts, and in many
where no positive bodily harm has been inflicted, the plaintiff is permitted to recover for injury
to the feelings and affections, for mental anxiety, personal insult, and that wounded sensibility
which follows the invasion of a large class of personal rights.” Ballou v. Farnum, 93 Mass. 73,
77 (1865).
 No. 18-2261 Buchholz v. Meyer Njus Tanick, PA Page 23

I concede that the common law typically authorized “no recovery” if a plaintiff incurred
only “mental suffering.” S. Express Co. v. Byers, 240 U.S. 612, 615 (1916) (citing 1 Thomas
Cooley, A Treatise on the Law of Torts 94 (3d ed. 1906)); see Restatement (First) of Torts § 46.
Instead, mental-distress damages were usually “‘parasitic’” in the sense that a plaintiff could
recover for those injuries only if the plaintiff asserted “the violation of some other recognized
legal right.” Calvert Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harv.
L. Rev. 1033, 1048 (1936) (citation omitted); Restatement (First) of Torts § 47(b). But that
limitation does not alter my thinking. For starters, it came with exceptions. Consider the
common-law tort of assault. “Since the ancient case of the tavern keeper’s wife who
successfully dodged the hatchet cast at her by an irate customer,” courts have allowed recoveries
for mental anxiety alone when caused by an attempted battery. Magruder, supra, at 1033–34,
1050 (discussing De S. & Wife v. W. de S., (1348 or 1349) Y.B. 22 Edw. 3, f. 99, pl. 60); see 3
William Blackstone, Commentaries on the Laws of England *120; Restatement (First) of Torts
§ 24 cmt. c; id. § 905 cmt. e. Besides, this common-law rule addressed the scope of the
substantive tort law; it did not treat mental suffering as a non-existent harm. As one case noted,
the rule meant only that “the act complained of was not an infraction of any legal right, and
hence not an actionable wrong at all”; it did not mean that “mental suffering, as a distinct
element of damage, is never a proper subject of compensation.” Larson v. Chase, 50 N.W. 238,
239 (Minn. 1891); see Sedgwick, supra, at 103–04.

And, as Lujan teaches, legislatures may “elevat[e] to the status of legally cognizable
injuries concrete, de facto injuries that were previously inadequate in law.” 504 U.S. at 578.
State common-law courts have already made that elevation in this context—as evidenced by the
modern torts allowing recovery for the intentional or negligent infliction of emotional distress.
See, e.g., Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 544–50 (1994); Hustler Magazine, Inc.
v. Falwell, 485 U.S. 46, 53 (1988); see generally William L. Prosser, Insult and Outrage, 44 Cal.
L. Rev. 40 (1956). Congress, when acting within the bounds of its Article I powers, can elevate
this kind of concrete and particularized mental injury too. It, for example, may permit a debtor
to sue for the distress caused by a debt collector’s threatened violence if the debtor doesn’t pay
up, even if the debtor had no federal right to recover for that distress before 1977. (That said,
whether the Fair Debt Collection Practices Act’s “actual damages” language, in fact, covers
 No. 18-2261 Buchholz v. Meyer Njus Tanick, PA Page 24

mental distress is not before us. 15 U.S.C. § 1692k(a)(1); cf. FAA v. Cooper, 566 U.S. 284
(2012).)

To be sure, courts may sometimes face difficulty distinguishing between an Article III
case (in which an individual has sued for the mental distress caused by the violation of a private
right) and a nonjusticiable request for an advisory opinion (in which an individual has sued for
the mental distress caused by the violation of a public right). See William Baude, Standing in the
Shadow of Congress, 2016 Sup. Ct. Rev. 197, 230–31. In a different context, for example, the
Supreme Court has “not been entirely consistent” when differentiating the core private rights that
must be adjudicated in Article III courts from the “public rights” that may be adjudicated outside
them. Stern v. Marshall, 564 U.S. 462, 488 (2011). The principles that the Court currently
applies in that context may not map on neatly in this one. Yet current standing law already
requires courts to draw something like this distinction between private and public rights with its
requirement that an injury be “particularized” and “affect the plaintiff in a personal and
individual way.” Spokeo, 136 S. Ct. at 1548 (citation omitted). This “historically recognized”
distinction might help give content to the particularity element in difficult cases. Woolhandler
& Nelson, supra, at 693.

In the end, this analysis leads me to decline to join the court’s suggestion that anxiety
alone may not be a concrete Article III injury. But, as the court goes on to explain, Buchholz’s
allegations against the two letters sent by Meyer Njus Tanick collapse under a combination of
standing’s traceability element and the Supreme Court’s pleading standards. Buchholz alleges
that he felt anxiety from the letters’ purportedly false (and entirely implied) representation that a
lawyer had meaningfully reviewed his debt. Even if Buchholz could recover for mental anxiety,
he has failed to plead enough allegations suggesting that this implied representation—as opposed
to the fact that he had received a letter from a lawyer about a valid debt—caused any distress.
See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 417 (2013). In addition, the court rightly adds
that Buchholz may not fall back on the mere invasion of a right provided by the Fair Debt
Collection Practices Act. The Supreme Court has rejected the view that “the violation of a
statutory right automatically satisfies the injury-in-fact requirement whenever a statute authorizes
a person to sue to vindicate that right.” Frank v. Gaos, 139 S. Ct. 1041, 1046 (2019) (per
 No. 18-2261 Buchholz v. Meyer Njus Tanick, PA Page 25

curiam); see Hagy v. Demers & Adams, 882 F.3d 616, 621–23 (6th Cir. 2018). That leaves
Buchholz with no injury on which to rest his claim, so the district court properly dismissed it for
lack of standing.