United States v. Bedi ( 2021 )

20-1955-cv
United States v. Bedi
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2020
ARGUED: MAY 20, 2021
DECIDED: SEPTEMBER 30, 2021
No. 20-1955-cv
UNITED STATES OF AMERICA,
Plaintiff – Counter-Defendant – Appellee,
v.
VICKRAM BEDI and DATALINK COMPUTER PRODUCTS, INC.,
Defendants – Counter-Claimants – Appellants. *
________
Appeal from the United States District Court
for the Northern District of New York
________
Before: WALKER, CABRANES, and WESLEY, Circuit Judges.
________
Datalink Computer Products, Inc. (Datalink) and its president,
Vickram Bedi, appeal from a judgment of the Northern District of
* The Clerk of Court is directed to amend the caption as set forth above.
2 No. 20-1955-cv
New York (Hurd, J.) granting summary judgment to the Government
on its claim to collect approximately $341,000 in back wages on behalf
of Helga Ingvarsdóttir, a native of Iceland and former Datalink
employee. The back wages were owing to Ingvarsdóttir under federal
law governing the H-1B visa program, which requires employers to
pay H-1B workers no less than the “prevailing” or “actual” wage in
their area of employment. After Bedi and Datalink refused to comply
with an order from the U.S. Department of Labor (DOL) to remit the
wages, the Government brought this action to collect the unpaid
wages under the Federal Debt Collection Procedures Act (FDCPA),
28 U.S.C. § 3001 et seq.
On appeal, Bedi and Datalink principally argue that the
Government may not use the procedures of the FDCPA to collect the
unpaid wages. They contend that an administrative award of back
wages is not an amount “owing to the United States” under the
FDCPA, and that our circuit’s contrary decision in NLRB v. E.D.P.
Medical Computer Systems, Inc., 6 F.3d 951 (2d Cir. 1993), should be
reconsidered. For the reasons that follow, we agree. We hold that the
Government may not rely on the FDCPA to collect back wages on
Ingvarsdóttir’s behalf. We therefore REVERSE the judgment of the
district court, overrule E.D.P., and restore the reach of the FDCPA to
the limits enacted by Congress.
________
JESSE Z. GRAUMAN, Senior Attorney (Stanley E.
Keen, Deputy Solicitor for National Operations,
Jennifer S. Brand, Associate Solicitor, Rachel
Goldberg, Counsel for Appellate Litigation, on the
brief), United States Department of Labor,
Washington, District of Columbia, for Plaintiff –
Counter-Defendant – Appellee United States of
America.
3 No. 20-1955-cv
ALAN LEWIS (Leonardo Trivigno, on the brief),
Carter Ledyard & Milburn LLP, New York, New
York, for Defendants – Counter-Claimants –
Appellants Vickram Bedi and Datalink Computer
Products, Inc.
________
JOHN M. WALKER, JR., Circuit Judge:
Datalink Computer Products, Inc. (Datalink) and its president,
Vickram Bedi, appeal from a judgment of the Northern District of
New York (Hurd, J.) granting summary judgment to the Government
on its claim to collect approximately $341,000 in back wages on behalf
of Helga Ingvarsdóttir, a native of Iceland and former Datalink
employee. The back wages were owing to Ingvarsdóttir under federal
law governing the H-1B visa program, which requires employers to
pay H-1B workers no less than the “prevailing” or “actual” wage in
their area of employment. After Bedi and Datalink refused to comply
with an order from the U.S. Department of Labor (DOL) to remit the
wages, the Government brought this action to collect the unpaid
wages under the Federal Debt Collection Procedures Act (FDCPA). 1
On appeal, Bedi and Datalink principally argue that the
Government may not use the procedures of the FDCPA to collect the
unpaid wages. They contend that an administrative award of back
wages is not an amount “owing to the United States” under the
FDCPA, and that our circuit’s contrary decision in NLRB v. E.D.P.
Medical Computer Systems, Inc. 2 should be reconsidered. For the
reasons that follow, we agree. We hold that the Government may not
rely on the FDCPA to collect back wages on Ingvarsdóttir’s behalf.
We therefore REVERSE the judgment of the district court, overrule
1 See 28 U.S.C. § 3001 et seq.
2 6 F.3d 951 (2d Cir. 1993).
4 No. 20-1955-cv
E.D.P., and restore the reach of the FDCPA to the limits enacted by
Congress. 3
BACKGROUND
This appeal turns on a question of statutory interpretation:
whether the FDCPA authorizes the United States to collect on an
administrative order requiring a private employer to remit back pay
to its former employee. While this question is a purely legal one, we
begin with a brief discussion of the facts and procedural history to
explain how this dispute originated.
From 1995 to 2010, Bedi was the president and sole shareholder
of Datalink, a small company that sold and serviced computers. In
2005, Bedi sought to hire an employee through the H-1B visa program
to speak with customers and to handle administrative work. The H-
1B visa program allows U.S. employers to bring temporary workers
to the United States to perform “specialty occupation[s].” 4 To
participate in the program, employers must comply with certain labor
standards, including by paying H-1B workers no less than the
“actual” or “prevailing” wage in their area of employment. 5 In this
case, Bedi obtained approval from the Department of Homeland
Security to hire Ingvarsdóttir, a native of Iceland. In doing so, he
3 This opinion has been circulated to all active judges of the court prior
to filing.
4 See 8 U.S.C. § 1101(a)(15)(H)(i)(b).
5 Specifically, the H-1B visa program requires participating employers
to pay workers the greater of (a) “the actual wage level paid by the
employer to all other individuals with similar experience and qualifications
for the specific employment in question,” or (b) “the prevailing wage level
for the occupational classification in the area of employment.” Id.§ 1182(n)(1)(A)(i)(I), (II).
5 No. 20-1955-cv
certified to the DOL that he would pay her no less than the prevailing
wage of $61,152 per year to work as an “Account Executive.”
Ingvarsdóttir’s employment with Datalink did not go
smoothly. According to Ingvarsdóttir, Bedi abused and manipulated
her, paid her only “sporadic[ally],” and forced her to perform
“continuous servant work” for him and his mother. 6 The two also
engaged in criminal activity. In November 2010, Bedi and
Ingvarsdóttir were arrested and charged in New York State court in
connection with an elaborate scheme to defraud one of Datalink’s
clients, Roger Davidson. Bedi pled guilty to first-degree grand
larceny and was sentenced to three to nine years’ imprisonment.
Ingvarsdóttir pled guilty to second-degree grand larceny and was
sentenced to five years’ probation.
In March 2012, while Bedi and Ingvarsdóttir’s criminal
proceedings were pending, Ingvarsdóttir filed a complaint with the
DOL’s Wage and Hour Division alleging that she “receiv[ed] virtually
no wages” from Datalink for her work from 2005 to 2010. 7 The DOL
has authority to determine whether an H-1B employer has failed to
pay wages as required by the H-1B visa program. 8 Pursuant to that
authority, the agency issued a written determination on August 6,
2012, finding that Bedi and Datalink failed to pay Ingvarsdóttir
$237,066.06 in wages required by the H-1B statute and regulations.
The determination ordered them to pay the required back wages
within 15 days, unless either party requested a hearing before an
administrative law judge (ALJ).
Following the DOL’s August 6 determination, Bedi and
Ingvarsdóttir both requested hearings before an ALJ. The ALJ held
6 Supp. App. at 24–25, 32–33.
7 Supp. App. at 119.
8 See 20 C.F.R. §§ 655.705(a)(2), 655.805(a)(2).
6 No. 20-1955-cv
two hearings in the summer of 2013 and received post-hearing
briefing from the parties. On August 4, 2014, the ALJ issued a final
written decision holding Bedi and Datalink jointly and severally liable
to Ingvarsdóttir for $341,693.03 in back wages, plus pre- and post-
judgment interest (the Administrative Order). 9 Although Bedi and
Datalink appealed to the Administrative Review Board (ARB), the
ARB substantially affirmed the Administrative Order on February 29,
2016. 10
Bedi and Datalink failed to comply with the Administrative
Order and did not remit back wages to Ingvarsdóttir. Ingvarsdóttir
sought to collect on the debt in state court, but her action was
dismissed because she failed to establish that the court could grant
her that relief. 11 Shortly thereafter, the Government initiated this
action to collect the back wages under the FDCPA. As relevant here,
the FDCPA authorizes the Government to recover judgment on a
“debt,” which the law defines as “an amount that is owing to the
United States” on account of several enumerated “source[s] of
indebtedness to the United States.” 12 Although the text of the
Administrative Order awarded back wages to “Ingvarsdottir,” not
“the United States,” the Government claimed that the unpaid sum fell
within the definition of “debt” such that the Government could collect
the wages on Ingvarsdóttir’s behalf.
On January 29, 2018, Bedi and Datalink moved to dismiss the
9The Administrative Order states: “IT IS ORDERED that . . . Datalink
and Vickram Bedi pay Complainant Helga Ingvarsdottir $341,693.03 in
back wages.” Joint App. at 119.
10 The ARB reduced the award of back wages from $341,693.03 to
$340,987.43 to account for three days in 2006 when Ingvarsdóttir was unable
to work.
11 See Ingvarsdóttir v. Bedi, No. 155571/2016, 2017 WL 1438265, at *3–4
(N.Y. Sup. Ct., N.Y. Cnty. Apr. 24, 2017).
12 28 U.S.C. § 3002(3)(B).
7 No. 20-1955-cv
Government’s complaint, arguing that the agency’s award of back
wages was not “owing to the United States” as required by the plain
text of the FDCPA. 13 The district court denied the motion. Relying
on our prior decision in E.D.P., it explained that a federal agency’s
award of back wages may qualify as a debt “owing to the United
States” when the agency “act[s] ‘in the overall public interest’ of
preventing unfair labor practices.” 14 While the district court
acknowledged that E.D.P. was a split-panel decision and that other
circuits have ruled to the contrary, it determined that it was bound by
E.D.P., which remained “the law of the Second Circuit.” 15
On December 13, 2019, when the parties moved for summary
judgment, Bedi and Datalink renewed their argument that
Ingvarsdóttir’s back wages were not “owing to the United States”
under the FDCPA. The district court again rejected the argument,
reiterating its prior conclusion “that the Second Circuit’s decision in
E.D.P. permitted the Government to use the FDCPA to pursue the
back pay awarded to Ingvarsdóttir.” 16 After disposing of Bedi and
Datalink’s remaining arguments, the district court entered judgment
in favor of the Government. 17 Bedi and Datalink timely appealed.
13 See id. § 3002(3)(A), (B).
14 See United States v. Bedi (Bedi I), 318 F. Supp. 3d 561, 567 (N.D.N.Y.
2018) (quoting E.D.P., 6 F.3d at 954).
15 Id. at 567 & n.6. Bedi and Datalink moved to certify the 2018 opinion
for interlocutory appeal under 28 U.S.C. § 1292(b). The district court denied
the motion on January 28, 2019, concluding that “the controlling law of this
Circuit is not fundamentally uncertain but simply unfavorable to
defendants.” United States v. Bedi (Bedi II), No. 17cv1168, 2019 WL 356546,
at *4 (N.D.N.Y. Jan. 28, 2019).
16 United States v. Bedi (Bedi III), 453 F. Supp. 3d 563, 567 (N.D.N.Y. 2020).
17 Id. at 574.
8 No. 20-1955-cv
DISCUSSION
We review a district court’s decision granting summary
judgment de novo, drawing all inferences in favor of the nonmoving
party. 18 Summary judgment is appropriate only “if the movant shows
that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” 19 The interpretation of a
statute is a question of law, which we review de novo. 20
On appeal, Bedi and Datalink argue that the district court erred
in granting summary judgment to the Government because the
Administrative Order awarding back wages was not a debt “owing
to the United States” as required by the FDCPA. 21 They urge us to
overrule E.D.P. as contrary to the plain meaning of the statute and as
inconsistent with the decisions of our sister circuits and the Supreme
Court. In the alternative, Bedi and Datalink contend that, even if the
FDCPA could apply to the Administrative Order, the district court
erred by rejecting their affirmative defense of in pari delicto. 22
Reviewing the district court’s decision de novo, we agree that
the FDCPA does not authorize the Government to collect on the
Administrative Order and conclude that E.D.P. was wrongly decided.
Accordingly, without objection by the active judges of the Second
Circuit, we overrule the majority opinion in E.D.P. and, in so doing,
restore the reach of the FDCPA to the limits enacted by Congress.
18Fischer v. Forrest, 968 F.3d 216, 219 (2d Cir. 2020).
19Fed. R. Civ. P. 56(a).
20 Roach v. Morse, 440 F.3d 53, 56 (2d Cir. 2006).
21 See 28 U.S.C. § 3002(3)(A), (B).
22 “The doctrine of in pari delicto, a term meaning ‘of equal fault,’ reflects
the principle that a plaintiff who has participated in wrongdoing equally
with another person may not recover from that other person damages
resulting from the wrongdoing.” Republic of Iraq v. ABB AG, 768 F.3d 145,
160 (2d Cir. 2014).
9 No. 20-1955-cv
Because our interpretation of the statute resolves this appeal, we
decline to address Bedi and Datalink’s affirmative defense of in pari
delicto.
When resolving a dispute over a statute’s meaning, our
principal task is “to afford the law’s terms their ordinary meaning at
the time Congress adopted them.” 23 When the statutory text is plain
and unambiguous, our “sole function” is “to enforce it according to
its terms.” 24 “Extrinsic materials have a role in statutory
interpretation only to the extent they shed a reliable light on the
enacting Legislature’s understanding of otherwise ambiguous
terms.” 25 After all, “[i]f judges could add to, remodel, update, or
detract from old statutory terms inspired only by extratextual sources
and our own imaginations, we would risk amending statutes outside
the legislative process reserved for the people’s representatives.” 26
We thus begin with the statutory text, exhausting “all the textual and
structural clues” bearing on its meaning 27 and construing each word
“in its context and in light of the terms surrounding it.” 28
The FDCPA “provides the exclusive civil procedures for the
United States to recover a judgment on a debt.” 29 The statute applies
23 Niz-Chavez v. Garland, 141 S. Ct. 1474, 1480 (2021).
24 See Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004) (quoting Hartford
Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000)); see
also BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004) (“[O]ur inquiry
begins with the statutory text, and ends there as well if the text is
unambiguous.”).
25 Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005).
26 Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1738 (2020).
27 Wisc. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018).
28 Leocal v. Ashcroft, 543 U.S. 1, 9 (2004).
29 28 U.S.C. § 3001(a)(1).
10 No. 20-1955-cv
only to an amount qualifying as a “debt,” 30 which it defines in two
subparts:
(A) an amount that is owing to the United States on
account of a direct loan, or loan insured or guaranteed,
by the United States; or
(B) an amount that is owing to the United States on
account of a fee, duty, lease, rent, service, sale of real or
personal property, overpayment, fine, assessment,
penalty, restitution, damages, interest, tax, bail bond
forfeiture, reimbursement, recovery of a cost incurred by
the United States, or other source of indebtedness to the
United States, but that is not owing under the terms of a
contract originally entered into by only persons other
than the United States[.] 31
Because our decision turns on the scope of the FDCPA’s definition of
“debt,” these two subparts are the focus of our analysis.
The text and structure of these provisions lead us to identify
both a primary requirement and a limitation to the definition of
“debt.” First, to qualify as a “debt,” the amount must always be
“owing to the United States.” 32 This primary requirement is present
at the beginning of both subparts (A) and (B), and it carries through
each of the twists and turns in the ensuing statutory text. The
language that follows the phrases “on account of” describes
permissible sources of indebtedness but does not modify the prior
30See id. § 3001(c) (“This chapter shall not apply with respect to an
amount owing that is not a debt or to a claim for an amount owing that is
not a debt.”).
31 Id. § 3002(3)(A), (B).
32 Id.
11 No. 20-1955-cv
condition requiring the debt to be “owing to the United States.” 33
Thus, the Government may not use the FDCPA to collect any “fee,”
“rent,” or “damages” owing to anyone. 34 Only when such amounts
are owing to the “United States” may the statutory authority apply. 35
Second, while this primary requirement is a necessary condition, a
limitation in subpart (B) provides that it is not always sufficient. Even
if the debt is “owing to the United States” on account of a permissible
source, the Government may not collect under subpart (B) of the
FDCPA if the amount is “owing under the terms of a contract
originally entered into by only persons other than the United
States.” 36
We next consider the ordinary meaning of the phrase “owing
to the United States” and its subsequent limitation in subpart (B). In
the context of the provisions here, a reasonable reader would
understand the phrase “owing to the United States” to place the
United States in the position of a creditor seeking to recover a debt. 37
In other words, the ordinary meaning of this phrase requires the
United States to be the holder of the debt—i.e., the one “to whom [the]
debt is owing” 38—such that it has a direct financial stake in the debt
33Id.
34See id. § 3002(3)(B).
35 The statute defines “United States” as:
(A) a Federal corporation;
(B) an agency, department, commission, board, or other
entity of the United States; or
(C) an instrumentality of the United States.
Id. § 3002(15).
36 Id. § 3002(3)(B).
37 See FHFA v. UBS Ams. Inc., 712 F.3d 136, 141 (2d Cir. 2013) (“We must
attempt to ascertain how a reasonable reader would understand the
statutory text, considered as a whole.” (internal quotation marks omitted)).
38 See Creditor, Black’s Law Dictionary (6th ed. 1990) (in circulation at
time of FDCPA’s enactment in 1990).
12 No. 20-1955-cv
itself. This interpretation flows not only from the plain meaning of
the words “owing” 39 and “indebtedness” 40 but also from other
textual clues embedded in the definition. 41 For example, the sources
of indebtedness identified in subparts (A) and (B) reflect
circumstances in which the federal treasury holds a direct financial
interest in recovering the sum. That is true regardless of whether the
Government holds the debt in its capacity as sovereign (e.g., with
respect to a “duty,” “fine,” or “tax”) or as a party to a business or
financial transaction (e.g., with respect to a “loan,” “rent,” or “sale of
. . . property”). 42 The scope of the limitation in subpart (B) is plain as
well. As the Fifth Circuit explained in Sobranes Recovery Pool I, LLC v.
Todd & Hughes Construction Corp., the limitation simply “pulls out
from the definition those amounts owing to the United States that find
their genesis in contracts where the United States was not an original
party.” 43
Applying the ordinary meaning of the statute to the question
presented, we are unable to conclude that the DOL’s award of back
wages to Ingvarsdóttir created an indebtedness “owing to the United
States.” Ingvarsdóttir, not the United States, was deprived of fair
wages during the term of her employment, and the Administrative
Order requires Bedi and Datalink to pay “Ingvarsdóttir,” not “the
39See Merriam-Webster’s Collegiate Dictionary (9th ed. 1989) (defining
“owe” as “to be under obligation to pay” or “to be indebted to”).
40 See id. (defining “indebtedness” as “something (as an amount of
money) that is owed”).
41 See Leocal, 543 U.S. at 9 (“[W]e construe language in its context and in
light of the terms surrounding it.”).
42 See 28 U.S.C. § 3002(3)(A), (B).
43 509 F.3d 216, 223 (5th Cir. 2007) (discussing the limitation in subpart
(B) of 28 U.S.C. § 3002(3)).
13 No. 20-1955-cv
United States.” 44 As these facts make clear, the Government has no
claim to the debt itself. Any wages it collects will be remitted to
Ingvarsdóttir, the only party to whom the debt is owing.
The Government argues that Bedi and Datalink’s debt is
“owing to the United States” because the Government’s collection
efforts preserve fair wages in the United States and vindicate the
broader interests of the American public. It further argues that the
limitation in subpart (B) presents no barrier to collection because Bedi
and Datalink’s debt derives from federal regulations rather than any
employment agreement that Ingvarsdóttir may have signed. We do
not dispute the premise of either argument: the Government may
serve the public interest when it acts as a vehicle for Ingvarsdóttir to
collect the wages she is due, and federal law requires H-1B employers
to pay the required wage regardless of whether the employee signs
an agreement accepting lower compensation. 45 But neither of these
facts transform the debt itself into one that is “owing to the United
States,” which is the statute’s primary requirement. 46 Thus, while we
acknowledge the Government’s strong interest in promoting
compliance with the H-1B visa program, we conclude that the
Government may not use the procedures of the FDCPA to collect the
Administrative Order on Ingvarsdóttir’s behalf.
Although the text is unambiguous, our conclusion is fortified
by the legislative history. As the House report makes clear, the
FDCPA was intended to address the growing problem of delinquent
debt owing to the United States, in great measure due to high rates of
As noted above, the Administrative Order requires “that . . . Datalink
44
and Vickram Bedi pay Complainant Helga Ingvarsdottir $341,693.03 in
back wages.” Joint App. at 119.
45 See 8 U.S.C. § 1182(n)(1)(A)(i) (requiring employer to certify that it will
pay the required wage).
46 See 28 U.S.C. § 3002(3)(A), (B).
14 No. 20-1955-cv
default in various government loan programs. 47 In describing the
purpose and structure of the bill, the House report refers only to
“debts owed to the United States government,” “Federal debts,” and
“government-owned debts,” emphasizing that the goal of the FDCPA
was to “lessen[] the effect of delinquent debts on the massive federal
budget deficit [then] undermining the economic well-being of the
Nation.” 48 As the First Circuit explained in United States v. Bongiorno,
the procedural tools granted to the Government through the FDCPA
serve the legislative purpose “when [they] operate[] in regard to a
debt whose recovery will directly augment the public coffers.” 49 Put
differently, Congress intended the FDCPA to apply to only those
debts “in which the government has a direct pecuniary stake.” 50
The Government gives short shrift to this abundant historical
evidence. It argues that, while the FDCPA certainly applies to debts
that “fill the public coffers,” we should also consider the importance
of effective collection for the enforcement of federal labor laws. 51
According to the Government, “Congress surely did not intend to
have DOL go through years of investigations, administrative
hearings, and appellate review leading to final agency action to
enforce a federal labor law, only to have enforcement of its own order
. . . be left to the disparate collection regimes that the FDCPA was
specifically enacted to avoid.” 52 Again, the Government’s argument
misses the mark. Nothing in the legislative history indicates that
Congress enacted the FDCPA to aid in the enforcement of federal
labor laws or to promote compliance with other obligations that are
47See H.R. Rep. No. 101-736, at 23–25 (1990), reprinted in 1990
U.S.C.C.A.N. 6472, 6631–33.
48 Id.49 106 F.3d 1027, 1039 (1st Cir. 1997).
50 Id. at 1037.
51 Appellee’s Br. at 35–36 (citing E.D.P., 6 F.3d at 955).
52 Id. at 38.
15 No. 20-1955-cv
regulated by the Government but owed to private parties. While
these could have been valid objectives of Congress, it is not the job of
judges to effectively rewrite the statute to achieve them. 53
Our decision also accords with an analogous decision of the
Supreme Court. Nearly seventy years ago in Nathanson v. NLRB, the
Supreme Court held that an award of back pay by the National Labor
Relations Board (NLRB) was not a “debt owing [to] the United States”
under the Bankruptcy Act. 54 The Court explained that, while the
Bankruptcy Act allowed the NLRB to file a claim for the back pay “as
agent for the injured employees,” it did not follow that any debt owed
was entitled to priority as a debt “owing [to] the United States.” 55 The
Court emphasized that any funds collected would not flow to the
federal treasury, but rather to “wage claimants who were
discriminated against by their employer.” 56 And although the
Government tries to distinguish Nathanson, its analysis is
unpersuasive. The bankruptcy provisions addressed in Nathanson
parallel the FDCPA in terms of both their text and the legislative
purpose that Congress sought to achieve. 57
Despite the plain meaning of the statute, its legislative history,
and the Supreme Court’s guidance in Nathanson, the Government has
one last argument: in E.D.P., a split panel of our court held that the
Government could rely on the FDCPA to collect an NLRB award of
53See Bostock, 140 S. Ct. at 1738.
344 U.S. 25, 27 (1952) (construing 11 U.S.C. § 104(a) (West Supp. 1952)
54
(repealed 1978), which prioritized “debts owing to . . . the United States”).
55 Id.56 Id. at 28.
57 See id. at 27–28 (explaining that “[t]he priority granted by [the
Bankruptcy Act] was designed to secure an adequate public revenue to
sustain the public burthens and discharge the public debts” (internal
quotation marks omitted)).
16 No. 20-1955-cv
back pay owing to a private employee. 58 Applying that decision here,
the Government argues that it may also collect the DOL’s award of
back wages notwithstanding the fact that the wages are ultimately
owing to Ingvarsdóttir.
We reject the Government’s argument because E.D.P. was
wrongly decided. Shirking both the statutory text and the weight of
the legislative history, the majority in E.D.P. structured its opinion
around a single sentence in a statement offered by Congressman
Brooks, one of the bill’s sponsors in the House. Specifically, the
majority seized on the Congressman’s pronouncement that the
FDCPA “will not apply to obligations which begin as purely private
loan or contract obligations.” 59 From this, the majority reasoned that,
if an obligation is not “purely private,” it must fall within the reach of
the FDCPA. 60 In other words, the majority construed the
Congressman’s statement as delineating the only condition required
for the FDCPA to apply without according any significance to the
primary requirement in the statutory text: that the debt to be enforced
must be “owing to the United States.” 61
Even if we were to set aside the plain text of the statute (which
undoubtedly we must not do), the Congressman’s statement simply
cannot bear the weight the majority opinion assigned to it. In his full
statement on the House floor, the Congressman explained that “[t]he
definition of ‘debt’ was carefully written to make clear that the [A]ct
58E.D.P., 6 F.3d at 954–55.
59 Id. at 954 (quoting 136 Cong. Rec. H13288 (daily ed. Oct. 27, 1990)
(statement by Congressman Brooks)).
60 See id. at 955.
61 See 28 U.S.C. § 3002(3)(A), (B).
17 No. 20-1955-cv
will not apply to obligations which begin as purely private loan or
contract obligations.” 62 He then provided an example:
[I]f one of our constituents goes to his neighborhood
bank or thrift and takes out a business or personal loan,
that transaction is between him and the bank or thrift. . . .
This is true even if the bank or thrift later fails and is
taken over by Federal regulators. If the Federal
Government seeks to recover these loan or contract
obligations, it may do so in exactly the way it proceeded
in the past; it is not eligible to use the new procedures in
this [A]ct. 63
Viewed in context, it seems clear that Congressman Brooks was
addressing nothing more than the limitation in subpart (B), which
simply “pulls out from the definition those amounts owing to the
United States that find their genesis in contracts where the United
States was not an original party.” 64 There is no evidence that the
Congressman believed that the limitation dispensed with the primary
requirement that all debts must be “owing to the United States” for
the FDCPA to apply. Even if that result were the unstated aim of his
remarks, the Congressman could not achieve on the House floor what
he failed to attain in the text itself. “After all, only the words on the
page constitute the law adopted by Congress and approved by the
President.” 65
62 136 Cong. Rec. H13288 (daily ed. Oct. 27, 1990).
63 Id.64 Sobranes, 509 F.3d at 223.
65 Bostock, 140 S. Ct. at 1738.
18 No. 20-1955-cv
Moreover, while E.D.P. has only once been cited within our
circuit for the relevant proposition, 66 two of our sister circuits have
expressly rejected E.D.P., creating a circuit split in need of
remediation. In Bongiorno, the First Circuit held that the Government
could not use the FDCPA to collect unpaid child support ordered as
restitution in a criminal case. 67 While collection of the debt would
promote the public interest, the court emphasized that the
Government “[was] not the holder of the debt in any legally
cognizable sense” because it sought “to collect restitution not to its
own behoof but for the benefit of a private party.” 68 Looking to the
statutory text, the legislative purpose, and the Supreme Court’s
decision in Nathanson, the court rejected the majority opinion in
E.D.P., concluding that a debt does not come within the FDCPA’s
grasp “if the United States is neither the formal owner nor the direct
beneficiary of it.” 69
The Fifth Circuit endorsed a similar construction of the FDCPA
in Sobranes, holding that the Government could not rely on the Act to
66See NLRB v. Kadouri Int’l Foods, Inc., No. 13mc0251, 2013 WL 3893330,
at *3 (E.D.N.Y. July 24, 2013) (adopting the report and recommendation of
the magistrate judge). This single citation to E.D.P. illustrates that there are
virtually no reliance interests that would weigh against overruling E.D.P.
67 106 F.3d at 1036. As the First Circuit explained in United States v.
Witham, Congress remedied this deficiency by passing the Mandatory
Victims Restitution Act (MVRA), which expressly authorized the
Government to use the procedures of the FDCPA to enforce private-victim
restitution orders in criminal cases. 648 F.3d 40, 44–48 (1st Cir. 2011); see
also United States v. Mays, 430 F.3d 963, 965 (9th Cir. 2005) (same); United
States v. Phillips, 303 F.3d 548, 551 (5th Cir. 2002) (same). While we agree
that Congress may expand the reach of the FDCPA through separate
statutory enactments, Congress has not provided the Government with any
separate authority to use the procedures of the FDCPA to collect an
administrative award of back pay like the one at issue here.
68 Bongiorno, 106 F.3d at 1039.
69 Id. at 1037.
19 No. 20-1955-cv
collect an FDIC judgment because the underlying notes were
“originally entered into by only persons other than the United
States.” 70 As in Bongiorno, the panel refused to follow E.D.P. The
court observed that E.D.P.’s “textual analysis is brief at best and
spends nary a word on the limiting clause in [subpart (B)] . . . .
Looking past the text saps persuasive force from the majority’s
opinion.” 71 The compelling analyses in Bongiorno and Sobranes give
us yet another reason to abandon E.D.P.
Of course, we recognize that E.D.P. is controlling precedent,
and we readily acknowledge that a panel of our court is ordinarily
“bound by the decisions of prior panels until such time as they are
overruled either by an en banc panel of our Court or by the Supreme
Court.” 72 In this case, however, we have circulated our opinion to all
active judges of the court prior to filing and received no objection. 73
And, “[w]hile stare decisis is undoubtedly of considerable importance
to questions of statutory interpretation, the Supreme Court ‘ha[s]
never applied stare decisis mechanically to prohibit overruling . . .
earlier decisions determining the meaning of statutes.’” 74 Our
principal duty, we believe, is to faithfully interpret the law Congress
enacted. 75 Accordingly, we overrule E.D.P. as wrongly decided and
inconsistent with the ordinary meaning of the FDCPA.
70509 F.3d at 221–24 (quoting 28 U.S.C. § 3002(3)(B)).
71Id. at 226.
72 In re Zarnel, 619 F.3d 156, 168 (2d Cir. 2010) (quoting United States v.
Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004)).
73 See, e.g., Shipping Corp. of. India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d
58, 67 & n.9 (2d Cir. 2009) (reversing prior panel holding through notice to
all active judges).
74 Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 310 (2d Cir. 2007) (en
banc) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 695 (1978)).
75 See Bostock, 140 S. Ct. at 1738.
20 No. 20-1955-cv
CONCLUSION
For the foregoing reasons, we REVERSE the judgment of the
district court and REMAND with instructions to enter judgment in
favor of Bedi and Datalink.