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SUPREME COURT OF THE UNITED STATES
_________________
No. 15–338
_________________
MARK J. SHERIFF, et al., PETITIONERS
v.PAMELA GILLIE, et al.
on writ of certiorari to the united states
court of appeals for the sixth circuit
[May 16, 2016]
Justice Ginsburg delivered the opinion of the
Court.
Ohio law authorizes the State’s Attorney General
to retain, as independent contractors, “special counsel” to act on
the Attorney General’s behalf in collecting certain debts owed to
Ohio or an instrumentality of the State. Ohio Rev. Code Ann.
§109.08 (Lexis 2014). As required by the Attorney General, special
counsel use the Attorney General’s letterhead in communicating with
debtors. App. 93. The Fair Debt Collection Practices Act, 91Stat.
874, 15 U. S. C. §1692
et seq. (FDCPA or Act),
aims to eliminate “abusive debt collection practices.”
§1692(a)–(d). To that end, the Act imposes various procedural and
substantive obligations on debt collectors. See,
e.g.,
§1692d (prohibiting harassing, oppressive, or abusive conduct);
§1692e (barring “false, deceptive, or misleading representation[s]
. . . in connection with the collection of any debt”);
§1692g(a) (setting out requirements for the contents of initial
notices to consumers). The FDCPA excludes from the definition of
“debt collector” “any officer or employee of the United States or
any State to the extent that collecting . . . any debt is
in the performance of his official duties.” §1692a(6)(C).
This case involves litigation between debtors to
Ohio institutions and special counsel who sought to collect money
owed to the institutions. The petition raises two questions: (1) Do
special counsel appointed by Ohio’s Attorney General qualify as
“state officers” exempt from the FDCPA’s governance? (2) Is special
counsel’s use of the Attorney General’s letterhead a false or
misleading representation proscribed by §1692e?
Assuming,
arguendo, that special counsel
do not rank as “state officers,” we hold, nevertheless, that their
use of the Attorney General’s letterhead does not offend §1692e.
Not fairly described as “false” or “misleading,” use of the
letterhead accurately conveys that special counsel, in seeking to
collect debts owed to the State, do so on behalf of, and as
instructed by, the Attorney General.
I
Responding to reports of abusive practices by
third-party collectors of consumer debts, Congress enacted the
FDCPA “to eliminate abusive debt collection practices by debt
collectors, to insure that those debt collectors who refrain from
using abusive debt collection practices are not competitively
disadvantaged, and to promote consistent State action to protect
consumers against debt collection abuses.” §1692(e). Primarily
governing “debt collector[s],” the Act defines that term to include
“any person . . . in any business the principal purpose
of which is the collection of any debts, or who regularly collects
or attempts to collect . . . debts owed or due or
asserted to be owed or due another.” §1692a(6). Excluded from the
definition is “any offi-cer or employee of the United States or any
State to the extent that collecting or attempting to collect any
debt is in the performance of his official duties.”
§1692a(6)(C).
Among other proscriptions, the FDCPA prohibits
debt collectors from employing “false, deceptive, or misleading”
practices. §1692e. “Without limiting” this general ban, §1692e
enumerates 16 categories of conduct that qualify as false or
misleading. Two of those categories are pertinent to our review:
“[t]he use or distribution of any written communication which
simulates or is falsely represented to be a document authorized,
issued, or approved by any court, official, or agency of
. . . any State, or which creates a false impression as
to its source, authorization, or approval,” §1692e(9); and “[t]he
use of any business, com-pany, or organization name other than the
true name of the debt collector’s business, company, or
organization,” §1692e(14). A debt collector who violates the Act is
liable for both actual and statutory damages. §1692k(a).
This case concerns the debt collection practices
of those charged with collecting overdue debts owed to Ohio-owned
agencies and instrumentalities. Among such debts are past-due
tuition owed to public universities and unpaid medical bills from
state-run hospitals. Under Ohio law, overdue debts are certified to
the State’s Attorney General, who is responsible for collecting,
settling, or otherwise disposing of them. Ohio Rev. Code Ann.
§131.02(A), (C), (F). Carrying out this responsibility, the
Attorney General may appoint private attorneys as “special counsel
to represent the state” in collecting certified claims.
§109.08.
Special counsel enter into year-long retention
agreements “on an independent contractor basis” to “provide legal
services on behalf of the Attorney General to one or more State
Clients.” App. 143–144. The Attorney General’s Office assigns
individual claims to special counsel, who are paid a set percentage
of the funds they collect for the State. §109.08;
id., at
144–145, 149–152. With “the prior approval of the Attorney
General,” special counsel may litigate and settle claims on behalf
of the State.
Id., at 149. Special counsel may continue to
represent private clients so long as doing so does not create a
conflict of interest with their work for the Attorney General.
Among the special counsel appointed by the Attorney General in 2012
were Mark Sheriff, a partner at the law firm of Wiles, Boyle,
Burkholder, and Bringardner Co. LPA (Wiles firm), and Eric Jones,
of the Law Offices of Eric A. Jones, LLC.
When special counsel contact debtors on behalf
of the State, the Attorney General requires them to use his
letterhead.
Id., at 93. Consistent with this requirement,
Sarah Sheriff, an employee of the Wiles firm, sent respondent Hazel
Meadows a debt collection letter on the Ohio Attorney General’s
letterhead. The letter reads:
“Sir/Madam: Per your request, this is a
letter with the current balance owed for your University of Akron
loan that has been placed with the Ohio Attorney General. Feel free
to contact me at [telephone number] should you have any further
questions.”
Gillie v.
Law Office of Eric A. Jones,
LLC, 785 F. 3d 1091, 1119 (CA6 2015).
The amount Meadows owed is listed in the
letter’s subject line.
Ibid. After the body of the letter,
Sheriff’s signature appears, followed by the firm’s name, its
address, and the designation “Special Counsel to the Attorney
General for the State of Ohio.”
Ibid.[
1] The letter concludes with a notice that it is
“an attempt to collect a debt” and that the senders “are debt
collectors.”
Ibid.
Respondent Pamela Gillie received a letter, also
on the Ohio Attorney General’s letterhead, in relation to a debt
she owed to a state-run hospital:
“Dear Sir/Madam, You have chosen to ignore
repeated attempts to resolv[e] the referenced . . .
medical claim. If you cannot make immediate full payment call
DENISE HALL at Eric A. Jones, L.L.C., [phone number] at my office
to make arrangements to pay this debt.”
Id., at 1118.
That text is followed by a bolded, all-caps
notice that the letter is “a communication from a debt collector.”
Ibid. Signed by Eric A. Jones, “Outside Counsel for the
Attorney General’s Office,” the letter includes Jones’s telephone
and fax numbers.
Ibid. A tear-away portion at the bottom of
the page for return of payment is addressed to Jones’s law office.
Ibid.
After receiving these letters, Meadows and
Gillie filed a putative class action in the United States District
Court for the Southern District of Ohio, asserting that Mark
Sheriff, Sarah Sheriff, Jones, and their law firms had violated the
FDCPA. By sending debt collection notices on the Attorney General’s
letterhead rather than the letterhead of their private firms,
Meadows and Gillie alleged, defendants had employed deceptive and
misleading means to attempt to collect consumer debts. The Ohio
Attorney General intervened as a defendant and counterclaimant,
seeking a declaratory judgment that special counsel’s use of his
letterhead, as authorized by Ohio law,[
2] is neither false nor misleading. Further, the Attorney
General urged, special counsel should be deemed officers of the
State and therefore outside the FDCPA’s compass.
The District Court granted summary judgment for
defendants, concluding that special counsel are “officers” of the
State of Ohio and, in any event, their use of the Attorney
General’s letterhead is not false or misleading.
Gillie v.
Law Office of Eric A. Jones, LLC, 37 F. Supp. 3d 928
(2014).
The Court of Appeals for the Sixth Circuit
vacated the District Court’s judgment. Because special counsel are
independent contractors, the court determined, they are not
entitled to the FDCPA’s state-officer exemption. 785 F. 3d, at
1097–1098. Turning to the deceptive and misleading practices
charge, the Court of Appeals concluded that there is a genuine
issue of material fact as to whether an unsophisticated consumer
would be misled “into believing it is the Attorney General who is
collecting on the account.”
Id., at 1106. The court
therefore remanded the case for trial on this issue.
Id., at
1110.
Judge Sutton dissented from both holdings. In
his view, “deputizing . . . private lawyers to act as
assistant attorneys general makes them ‘officers’ of the State for
. . . collection purposes.”
Ibid. He further
concluded that special counsel’s use of the Attorney General’s
letterhead “accurately describes the relevant legal realities—that
the law firm acts as an agent of the Attorney General and stands in
[his] shoes . . . in collecting money owed to the State.”
Id., at 1110–1111. The Sixth Circuit denied en banc
rehearing. We granted certiorari, 577 U. S. ___ (2015), and
now reverse.[
3]
II
As they did below, petitioners maintain that,
as special counsel appointed by the Attorney General, they are
“officers” exempt from the FDCPA’s governance, and that, in any
case, the debt collection letters they sent to respondents comply
with the Act. We pretermit the question whether, as petitioners
contend and Judge Sutton would have held, special counsel qualify
as state officers. For purposes of this decision, we assume,
arguendo, that special counsel are not “officers” within the
meaning of the Act and, therefore, rank simply as “debt collectors”
within the FDCPA’s compass. We conclude, nevertheless, that
petitioners complied with the Act, as their use of the Attorney
General’s letterhead accurately conveys that special counsel act on
behalf of the Attorney General.
Special counsel’s use of the Attorney General’s
letterhead at the Attorney General’s direction does not offend
§1692e’s general prohibition against “false . . . or
misleading representation[s].” The letterhead identifies the
principal—Ohio’s Attorney General—and the signature block names the
agent—a private lawyer hired as outside counsel to the Attorney
General. It would not transgress §1692e, respondents acknowledge,
if, in lieu of using the Attorney General’s letterhead, special
counsel’s communications opened with a bold-face statement: “We
write to you as special counsel to the [A]ttorney [G]eneral who has
authorized us to collect a debt you owe to [the State or an
instrumentality thereof].” Tr. of Oral Arg. 31 (internal quotation
marks omitted). If that representation is accurate,
i.e.,
not “false . . . or misleading,” it would make scant
sense to rank as unlawful use of a letterhead conveying the very
same message, particularly in view of the inclusion of special
counsel’s separate contact information and the conspicuous notation
that the letter is sent by a debt collector.[
4]
Our conclusion is bolstered by the character of
the relationship between special counsel and the Attorney General.
As earlier recounted, special counsel “provide legal services on
behalf of the Attorney General to one or more State Clients” in
furtherance of the Attorney General’s responsibilities as debt
collector for state-owned entities and instrumentalities. App.
143–144. In performing this function, special counsel work closely
with attorneys in the Attorney General’s Office. For example,
Assistant Attorneys General “frequently assist Special Counsel in
drafting pleadings, and sometimes join cases as co-counsel to
assist Special Counsel with particularly sensitive or complex
cases.”
Id., at 102. Special counsel and Assistant Attorneys
General even stand in one another’s stead, as needed, to cover
proceedings in ongoing litigation.
Ibid. Given special
counsel’s alliance with attorneys within the Attorney General’s
Office, a debtor’s impression that a letter from special counsel is
a letter from the Attorney General’s Office is scarcely
inaccurate.[
5]
On safe ground with respect to §1692e’s general
proscription against false and misleading representations, special
counsel’s use of the Attorney General’s letterhead is consistent
too with §1692e(9)’s specific prohibition against “falsely
represent[ing]” that a communication is “authorized, issued, or
approved” by a State. In enacting this provision, Congress sought
to prevent debt collectors from “misrepresenting” that they are
“government official[s].” S. Rep. No. 95–382, p. 8 (1977). Here,
the Attorney General authorized—indeed required—special counsel to
use his letterhead in sending debt collection communications.
Special counsel create no false impression in doing just what they
have been instructed to do. Instead, their use of the Attorney
General’s letterhead conveys on whose authority special counsel
writes to the debtor. As a whole, the communication alerts the
debtor to both the basis for the payment obligation and the
official responsible for enforcement of debts owed to the State,
while the signature block conveys who the Attorney General has
engaged to collect the debt.
Nor did special counsel, in sending letters on
the Attorney General’s letterhead, use a name other than their
“true name,” in violation of §1692e(14). Although the FDCPA does
not say “what a ‘true name’ is, its import is straightforward: A
debt collector may not lie about his institutional affiliation.”
785 F. 3d, at 1115 (Sutton, J., dissenting). Special counsel
do not employ a false name when using the Attorney General’s
letterhead at his instruction, for special counsel, as the Attorney
General’s agents, act for him in debt-related matters. Far from
misrepresenting special counsel’s identity, letters sent by special
counsel accurately identify the office primarily responsible for
collection of the debt (the Attorney General), special counsel’s
affiliation with that office, and the address (special counsel’s
law firm) to which payment should be sent.[
6]
We further note a federalism concern. “Ohio’s
enforcement of its civil code—by collecting money owed to it—[is] a
core sovereign function.”
Gillie v.
Law Office of Eric A.
Jones, LLC, No. 14–3836 (CA6, July 14, 2015), App. to Pet. for
Cert. 10a (Sutton, J., dissenting from denial of rehearing en
banc). Ohio’s Attorney General has chosen toappoint special counsel
to assist him in fulfilling his obliga-tion to collect the State’s
debts, and he has instructed his appointees to use his letterhead
when acting on his behalf. There is no cause, in this case, to
construe federal law in a manner that interferes with “States’
arrangements for conducting their own governments.”
Nixon v.
Missouri Municipal League, 541 U. S. 125, 140 (2004)
(citing
Greg-ory v.
Ashcroft, 501 U. S. 452, 460
(1991) ).
The Sixth Circuit’s contrary exposition is
unconvincing. Use of the Attorney General’s letterhead, the Court
of Appeals emphasized, has led to confusion among debtors, as the
Attorney General has received phone calls inquiring whether letters
sent by special counsel are authentic. 785 F. 3d, at 1107. But
the Sixth Circuit overlooked that the Attorney General’s prompt and
invariable answer to those inquiries was “yes.” To the extent that
consumers may be concerned that the letters are a “scam,” the
solution is for special counsel to say more, not less, about their
role as agents of the Attorney General. Special counsel’s use of
the Attorney General’s letterhead, furthermore, encourages
consumers to use official channels to ensure the legitimacy of the
letters, assuaging the very concern the Sixth Circuit
identified.
In addition to the specter of consumer
confusion, the Sixth Circuit stressed the risk of intimidation—that
the Attorney General’s letterhead would “place pressure on those
individuals receiving the letters” to pay their state debts.
Id., at 1105. There are two bases for this concern, neither
of which is persuasive. First, invocation of the Attorney General’s
imprimatur could lead debtors to prioritize their debt to
the State over other, private debts out of a belief that the
consequences of failing to pay a state debt would be more severe.
This impression is not false; the State does have enforcement
powers beyond those afforded private creditors. A debtor’s tax
refund, for example, “may be applied in satisfaction” of her debt,
regardless of whether the State has obtained a judgment, Ohio Rev.
Code Ann. §5747.12 (Lexis 2013), and a debt owed to the State takes
priority over most private debts in state probate proceedings,
§2117.25(A) (Lexis Supp. 2015). “The special consequences of state
debts explain why the Act bars debt collectors
unaffiliated
with a State from using the State’s name to scare debtors into
paying. When the State itself is doing the demanding, however,
nothing about the resulting fear misleads.” 785 F. 3d, at 1116
(Sutton, J., dissenting). In other words, §1692e bars debt
collectors from deceiving or misleading consumers; it does not
protect consumers from fearing the actual consequences of their
debts.
Second, debtors might worry that the letters
imply that the Attorney General, as the State’s top law enforcement
official, intends to take punitive action against them. “But
neither of the milquetoast letters [received by respondents]
. . . threatens criminal prosecution, civil penalties, or
any action whatsoever.”
Id., at 1116–1117. Use of the
Attorney General’s letterhead merely clarifies that the debt is
owed to the State, and the Attorney General is the State’s debt
collector. The FDCPA is not sensibly read to require special
counsel to obscure that reality.[
7]
* * *
For the reasons stated, the judgment of the
Court of Appeals for the Sixth Circuit is reversed, and the case is
remanded for further proceedings consistent with this
opinion
.
It is so ordered.