In a surprising turn of events this morning, the U.S. Court of Appeals for the Eleventh Circuit issued an order sua sponte to rehear Hunstein v. Preferred Collection and Management Services, Inc. en banc. The sua sponte order was issued after an Eleventh Circuit judge requested a poll on whether the case should be reheard en banc and a majority of the active judges voted in favor of the rehearing. The order also expressly vacated the existing substitute opinion issued by the panel earlier this month, meaning that the opinion is no longer binding precedent in the Eleventh Circuit and should not be cited as having any precedential value within the Eleventh Circuit or beyond.
Today’s order to rehear the case en banc follows the panel’s 2-1 decision last month, in which the panel issued a substitute opinion in response to the first effort to obtain rehearing by the defendant. In the substitute opinion, the majority affirmed its original April 2021 holding that the plaintiff had Article III standing and sufficiently pled a claim but also included analysis of the U.S. Supreme Court’s intervening decision in TransUnion v. Ramirez in the panel’s standing analysis. In dissent, Judge Tjoflat argued that the majority’s decision conferred standing too broadly in light of Ramirez and that Congress did not intend for a violation of FDCPA §1692c(b) to create standing in the absence of actual damages.
The next step will be for the Eleventh Circuit to state the specific issues on which it requests briefing and establish the timing for rehearing en banc. We are hopeful that the full court will agree to consider not just the standing issue on which the panel divided, but also the broader issue of whether any FDCPA claim can exist under the circumstances in light of the plain language of the FDCPA and other considerations, all of which were briefed extensively in prior amicus petitions supporting the defendant’s original rehearing effort earlier this year.