Sheriff v. Gillie , 136 S. Ct. 1594 ( 2016 )

(Slip Opinion) OCTOBER TERM, 2015 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SHERIFF ET AL. v. GILLIE ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 15–338. Argued March 29, 2016—Decided May 16, 2016
The Fair Debt Collection Practices Act (FDCPA or Act) aims to elimi-
nate “abusive debt collection practices,” 15 U.S. C. §1692(a)–(d), by,
as relevant here, barring “false, deceptive, or misleading representa-
tion[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 col-
lection 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 be-
half. The Attorney General requires special counsel to use the Attor-
ney General’s letterhead in communicating with debtors. Among the
special counsel appointed by the Attorney General in 2012 were peti-
tioners 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, em-
ployed deceptive and misleading means to attempt to collect consum-
er debts, in violation of the FDCPA. The Ohio Attorney General in-
2 SHERIFF v. GILLIE
Syllabus
tervened, 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 de-
fendants, 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, con-
cluding that special counsel, as independent contractors, are not enti-
tled to the FDCPA’s state-officer exemption. The appeals court re-
manded for trial the question whether use of the Attorney General’s
letterhead would mislead a debtor into believing that it is the Attor-
ney 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 Attor-
ney 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 prohibi-
tion against “false . . . or misleading representation[s].” The letter-
head identifies the principal—Ohio’s Attorney General—and the sig-
nature 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 At-
torney General’s behalf in furtherance of the Attorney General’s debt
collection responsibilities for the State. A debtor’s impression that a
letter from special counsel is a letter from the Attorney General’s Of-
fice 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 repre-
sent[ing]” that a communication is “authorized, issued, or approved”
by a State. Because the Attorney General authorized—indeed re-
quired—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 Gen-
eral’s letterhead at his instruction, for special counsel act as the At-
torney 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 Gen-
eral’s letterhead, but its exposition is unconvincing. Pp. 6–11.
Cite as: 578 U. S. ____ (2016) 3
Syllabus
785 F.3d 1091, reversed and remanded.
GINSBURG, J., delivered the opinion for a unanimous Court.
Cite as: 578 U. S. ____ (2016) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
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 Gen-
eral’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 (prohibit-
ing 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.”
2 SHERIFF v. GILLIE
Opinion of the Court
§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 let-
terhead 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”
Cite as: 578 U. S. ____ (2016) 3
Opinion of the Court
practices. §1692e. “Without limiting” this general ban,
§1692e enumerates 16 categories of conduct that qualify
as false or misleading. Two of those categories are perti-
nent 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 ap-
proval,” §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 Gen-
eral, who is responsible for collecting, settling, or other-
wise 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 agree-
ments “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 Gen-
eral’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
4 SHERIFF v. GILLIE
Opinion of the Court
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 re-
spondent 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 num-
ber] 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
——————
1 As noted above, Mark Sheriff, not Sarah Sheriff, was appointed
special counsel.
Cite as: 578 U. S. ____ (2016) 5
Opinion of the Court
DENISE HALL at Eric A. Jones, L.L.C., [phone num-
ber] 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 letter-
head 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.
——————
2 Ohio Rev. Code Ann. §109.08 (Lexis 2014) requires the Attorney
General to provide special counsel with his “official letterhead station-
ery” for the collection of tax debts. The Attorney General has interpreted
this provision as mandating the use of his letterhead for tax claims, but
permitting its use for the collection of other debts. Whether this is a
correct interpretation of Ohio law is not before us.
6 SHERIFF v. GILLIE
Opinion of the Court
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 mis-
leading 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 believ-
ing 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 attor-
neys 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 “of-
ficers” exempt from the FDCPA’s governance, and that, in
any case, the debt collection letters they sent to respond-
ents comply with the Act. We pretermit the question
——————
3 We granted the petition for certiorari filed by Mark Sheriff, Sarah
Sheriff, the Wiles firm, and the Ohio Attorney General. Jones and the
Law Offices of Eric A. Jones, LLC, filed a separate petition for certio-
rari as well as a separate brief in this case in support of petitioners. We
refer to defendants collectively as “petitioners.”
Cite as: 578 U. S. ____ (2016) 7
Opinion of the Court
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 At-
torney General’s letterhead accurately conveys that spe-
cial counsel act on behalf of the Attorney General.
Special counsel’s use of the Attorney General’s letter-
head at the Attorney General’s direction does not offend
§1692e’s general prohibition against “false . . . or mislead-
ing representation[s].” The letterhead identifies the prin-
cipal—Ohio’s Attorney General—and the signature block
names the agent—a private lawyer hired as outside coun-
sel to the Attorney General. It would not transgress
§1692e, respondents acknowledge, if, in lieu of using the
Attorney General’s letterhead, special counsel’s communi-
cations 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 accu-
rate, 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 inclu-
sion 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 rela-
——————
4 Although respondents argued below that Sarah Sheriff’s inaccurate
use of the “special counsel” designation also violates the FDCPA, they
have not pursued that argument before this Court. In any case, the
letter merely conveyed the debtor’s remaining balance, without any
suggestion of followup action. Sarah Sheriff’s misstatement of her title
thus qualifies as an immaterial, harmless mistake.
8 SHERIFF v. GILLIE
Opinion of the Court
tionship between special counsel and the Attorney Gen-
eral. 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 Attor-
neys General “frequently assist Special Counsel in draft-
ing pleadings, and sometimes join cases as co-counsel to
assist Special Counsel with particularly sensitive or com-
plex 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 pro-
scription 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 offi-
cial[s].” S. Rep. No. 95–382, p. 8 (1977). Here, the Attor-
ney General authorized—indeed required—special counsel
to use his letterhead in sending debt collection communi-
cations. 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
——————
5 We address here only “special counsel.” The considerations
relevant to that category may not carry over to other debt-collector
relationships.
Cite as: 578 U. S. ____ (2016) 9
Opinion of the Court
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 responsi-
ble 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 Attor-
ney 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 in-
struction, 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 Gen-
eral), 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 enforce-
ment 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 rehear-
ing en banc). Ohio’s Attorney General has chosen to
appoint special counsel to assist him in fulfilling his obliga-
——————
6 Because we conclude that the letters sent by petitioners were truth-
ful, we need not consider the parties’ arguments as to whether a false
or misleading statement must be material to violate the FDCPA, or
whether a potentially false or misleading statement should be viewed
from the perspective of “the least sophisticated consumer,” Brief for
Respondent Gillie et al. 57, or “[t]he average consumer who has de-
faulted on a debt,” Brief for Petitioners 41.
10 SHERIFF v. GILLIE
Opinion of the Court
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, encour-
ages 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,
Cite as: 578 U. S. ____ (2016) 11
Opinion of the Court
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 respond-
ents] . . . 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.
——————
7 Having determined that use of the Attorney General’s letterhead
inaccurately suggested that the letters were from the Attorney Gen-
eral’s Office, the Sixth Circuit remanded to the District Court for trial
on whether this practice was “materially false, deceptive and mislead-
ing.” Gillie v. Law Office of Eric A. Jones, LLC, 785 F.3d 1091, 1109–
1110 (2015). But all of the relevant facts are undisputed, and the
application of the FDCPA to those facts is a question of law. The
District Court therefore properly granted summary judgment for
defendants.