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Sheriff v. Gillie

United States Supreme Court

May 16, 2016

MARK J. SHERIFF, ET AL., PETITIONERS
v.
PAMELA GILLIE, ET AL

         Argued March 29, 2016

          ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

          SYLLABUS

          [194 L.Ed.2d 626] The Fair Debt Collection Practices Act (FDCPA or Act) aims to eliminate " abusive debt collection practices," 15 U.S.C. § 1692(a)-(d), by, as relevant [194 L.Ed.2d 627] here, barring " false, deceptive, or misleading representation[s] . . . in connection with the collection of any debt," § 1692e. Governing " debt collectors," the Act excludes from the definition of that term " any officer . . . of . . . any State to the extent that collecting . . . any debt is in the performance of his official duties." § 1692a(6)(C).

         Under Ohio law, overdue debts owed to state-owned agencies and instrumentalities are certified to the State's Attorney General for collection or disposition. Carrying out this responsibility, the Attorney General appoints, as independent contractors, private attorneys, naming them " special counsel" to act on the Attorney General's behalf. The Attorney General requires special counsel to use the Attorney General's letterhead in communicating with debtors. Among the special counsel appointed by the Attorney General in 2012 were petitioners Mark Sheriff and Eric Jones. Consistent with the Attorney General's direction, Sheriff's law firm and Jones sent debt collection letters on the Attorney General's letterhead to respondents Hazel Meadows and Pamela Gillie, respectively. The signature block of each letter contained the name and address of the signatory as well as the designation " special" or " outside" counsel to the State Attorney General. Each letter also identified the sender as a debt collector seeking payment for debts to a state institution. Meadows and Gillie filed a putative class action in Federal District Court, alleging that defendants had, by using the Attorney General's letterhead, employed deceptive and misleading means to attempt to collect consumer debts, in violation of the FDCPA. The Ohio Attorney General intervened, seeking a declaratory judgment that special counsel's use of the Attorney General's letterhead is neither false nor misleading, and urging that special counsel be deemed officers of the State exempted from the Act. The District Court granted summary judgment for defendants, holding that special counsel are " officers" of the State and, in any event, their use of the Attorney General's letterhead is not false or misleading. The Sixth Circuit vacated that judgment, concluding that special counsel, as independent contractors, are not entitled to the FDCPA's state-officer exemption. The appeals court remanded for trial the question whether use of the Attorney General's letterhead would mislead a debtor into believing that it is the Attorney General who is collecting the debt.

          Held :

          Assuming, arguendo, that special counsel do not rank as " state officers" within the meaning of the Act, petitioners' use of the Attorney General's letterhead, nevertheless, does not offend § 1692e.

         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. The character of the relationship between special counsel and the Attorney General bolsters the Court's determination. Special counsel work closely with attorneys in the Attorney General's Office, providing legal services on the Attorney General's behalf in furtherance of the Attorney General's debt collection responsibilities [194 L.Ed.2d 628] for the State. A debtor's impression that a letter from special counsel is a letter from the Attorney General's Office is thus scarcely inaccurate.

         Special counsel's use of the Attorney General's letterhead is also consistent with § 1692e(9)'s specific prohibition against " falsely represent[ing]" that a communication is " authorized, issued, or approved" by a State. Because the Attorney General authorized--indeed required--special counsel to use his letterhead, special counsel create no false impression in doing just that. Nor did special counsel use an untrue name in their letters, in violation of § 1692e(14). Special counsel do not employ a false name when they use the Attorney General's letterhead at his instruction, for special counsel act as the Attorney General's agents in debt-related matters. The Court sees no reason, furthermore, to construe the FDCPA in a manner that would interfere with the Attorney General's chosen method of fulfilling his statutory obligation to collect the State's debts.

         The Sixth Circuit raises the specter of consumer confusion and the risk of intimidation from special counsel's use of the Attorney General's letterhead, but its exposition is unconvincing. Pp. 6-11.

785 F.3d 1091, reversed and remanded.

         Eric E. Murphy argued the cause for petitioners.

         E. Joshua Rosenkranz argued the cause for respondents.

         Sarah E. Harrington argued the cause for the United States, as amicus curiae.

          OPINION

         GINSBURG, J.

          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, 91 Stat. 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 [194 L.Ed.2d 629] counsel do not rank as " state officers," we hold, nevertheless, that their use of the Attorney General's letterhead does not offend ยง 1692e. Not fairly described as " false" or " misleading," use of the letterhead accurately conveys that special counsel, in seeking to collect debts owed to ...


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