Gillie v. Law Office of Eric A. Jones, LLC, 14–3836.

Citation785 F.3d 1091
Decision Date08 May 2015
Docket NumberNo. 14–3836.,14–3836.
PartiesPamela GILLIE; Hazel Meadows, Plaintiffs–Appellants, v. LAW OFFICE OF ERIC A. JONES, LLC; Eric A. Jones; Wiles, Boyle, Burkholder & Bringardner Co., LPA; Mark Jeffrey Sheriff; Sarah Sheriff, Defendants–Appellees, Ohio Attorney General, Intervenor–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

ARGUED:James E. Nobile, Nobile & Thompson Co., L.P.A., Hilliard, Ohio, for Appellants. Christopher P. Conomy, Office of the Ohio Attorney General, Columbus, Ohio, for IntervenorAppellee. Boyd W. Gentry, Law Office Of Boyd W. Gentry, LLC, Beavercreek, Ohio, for Jones Appellees. Michael L. Close, Isaac Wiles Burkholder & Teetor, Columbus, Ohio, for Appellees Wiles and Sheriff. ON BRIEF:James E. Nobile, Eric E. Willison, Nobile & Thompson Co., LPA, Hilliard, Ohio, for Appellants. Christopher P. Conomy, Sherry M. Phillips, Office of the Ohio Attorney General, Columbus, Ohio, for IntervenorAppellee. Boyd W. Gentry, Law Office Of Boyd W. Gentry, LLC, Beavercreek, Ohio, for Jones Appellees. Michael L. Close, Dale D. Cook, Isaac Wiles Burkholder & Teetor, Columbus, Ohio, for Appellees Wiles and Sheriff.

Before: CLAY, GILMAN, and SUTTON, Circuit Judges.

CLAY, J., delivered the opinion of the court in which GILMAN, J., joined. SUTTON, J. (pp.1110–17), delivered a separate dissenting opinion.

OPINION

CLAY, Circuit Judge.

Plaintiffs Pamela Gillie and Hazel Meadows appeal the district court order entering summary judgment in favor of Defendants Eric A. Jones; the Law Office of Eric A. Jones, LLC (Jones Law Office); Mark J. Sheriff; Sarah Sheriff; and Wiles, Boyle, Burkholder & Bringardner Co., LPA (Wiles Law Firm). Plaintiffs brought this action under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., alleging that Defendants utilized a deceptive, misleading, or false representation or means in attempting to collect consumer debts Plaintiffs owed to entities owned and operated by the State of Ohio. The Attorney General intervened on behalf of Defendants, asserting that the alleged misrepresentation—consisting of sending debt-collection notices on the Attorney General's letterhead—was not a misrepresentation at all and was, in fact, authorized by the Attorney General. The district court found that Defendants were exempt from FDCPA coverage as “officers” of the State of Ohio; and that, in any event, their use of the Attorney General's letterhead did not violate the FDCPA.

For the reasons set forth below, we VACATE the summary judgment in favor of Defendants and REMAND this case to the district court for further proceedings consistent with this opinion.

BACKGROUND

On September 20, 1977, Congress enacted the Fair Debt Collection Practices Act, Pub.L. 95–109, 91 Stat. 874 (codified at 15 U.S.C. 1692 et seq. ), as Title VIII of the Consumer Credit Protection Act. Abusive debt collection practices were at the time, and remain today,1 a “serious national problem” that “touches the lives of many Americans.” S.Rep. No. 95–382, at 2 (1977), 1977 U.S.C.C.A.N. 16952 The FDCPA specifically sought to target all “third party and “independent debt collectors,” whom the Senate cited as “the prime source of egregious collection practices.” Id. The Senate's contention was that independent debt collectors have little incentive to act fairly, given that they “are likely to have no future contact with the consumer and often are unconcerned with the consumer's opinion of them.” Id. at 2. Moreover, the independent collector's commissions-based incentive to collect as many debts as possible is problematic, because it increases the likelihood of abusive collection practices. Id. The same concerns, however, are not present for “in house collectors,” who were to be excluded from the FDCPA's broad definition of the term “debt collector.” Id. at 3 (internal quotation marks omitted). “Government officials, such as marshals and sheriffs,” were offered by the Senate as the lone example of “in house” collectors working in the public sector. Id. at 3. The statutory language ultimately adopted for this exemption excluded from the definition of debt collector, “any officer or employee of ... any State to the extent that collecting or attempting to collect any debt is in the performance of his official duties.” 15 U.S.C. § 1692a(6)(C). This language remains the only exemption for state actors. The term “debt collector,” from which these state actors are exempted, was ultimately defined as “any person ... who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” § 1692a(6). The overwhelming breadth of this provision is fitting, given Congress's intent to extinguish all abusive debt collection practices. One of these practices consisted of independent debt collectors “misrepresenting” that they were, in fact, “government official [s].” S.Rep. No. 95–382, at 8 (1977), 1977 U.S.C.C.A.N. 1695. This concern, along with the issue of who would qualify for the state sector exemption, are among the issues we address in this opinion.

Special Counsel and the Ohio Attorney General

Title I, Chapter 131, of the Ohio Revised Code governs the collection of debts3 owed to the State of Ohio. These debts include unpaid taxes, overdue fees on governmental services, and administrative fines, as well as consumer debts arising from transactions with various State-owned entities (e.g., overdue tuition from a State university or unpaid medical bills from a State hospital). This case is about consumer debts. Debts that remain uncollected by the State entity to whom the debt is owed are eventually “certified” to the Office of the Ohio Attorney General (“OAG”). Ohio Rev.Code § 131.02(A). The Attorney General is thereafter responsible for collecting the debt or disposing of it by other means (e.g., securing a judgment, selling or transferring the claim on the debt, or causing the debt to be canceled). §§ 131.02(C), (F).

The Attorney General is not personally required to collect the debts certified to the OAG. Section 109.08 of the Ohio Revised Code provides that the Attorney General may enlist “special counsel to collect debts on the Attorney General's behalf. The statute reads in full:

The attorney general may appoint special counsel to represent the state in connection with all claims of whatsoever nature which are certified to the attorney general for collection under any law or which the attorney general is authorized to collect.
Such special counsel shall be paid for their services from funds collected by them in an amount approved by the attorney general.
The attorney general shall provide to the special counsel appointed to represent the state in connection with claims arising out of [specific tax debts] the official letterhead stationery of the attorney general. The special counsel shall use the letterhead stationery, but only in connection with the collection of such claims arising out of those taxes.

Ohio Rev.Code § 109.08.

Special counsel receive their appointment by submitting a successful response to a Request for Qualifications. Once selected, they enter into a “retention agreement” with the Attorney General that defines the scope of their engagement.

The retention agreement contains a few provisions that are germane to this dispute. First, actions taken by special counsel are only authorized by and through the retention agreement and only for its duration. (R. 48–8, 2013 Retention Agreement, PageID # 634 (“No services rendered by Special Counsel after the date of Termination shall be authorized or payable without an additional agreement from the Attorney General.”)). Second, “Special Counsel shall be engaged by the Attorney General solely on an independent contractor basis.” (Id. at PageID # 635 (“No Special Counsel ... shall be regarded as in the employment, or as an employee of, the Attorney General or the State Clients.”)). Third, “the appointment of Special Counsel is personal in nature and does not extend to any law firm that the Special Counsel is associated with.” (Id. at PageID # 634). Fourth, claims are assigned to special counsel; however, all collections must be forwarded and endorsed to the Attorney General before the special counsel is entitled to receive a percentage of the collections-based fee. Fifth, the retention agreement requires special counsel to “comply with the same standards of behavior as set forth in ... the Fair Debt Collection Practices Act.” (Id. at PageID # 646). In addition to these provisions, though not in the agreement, special counsel have been orally directed by the Attorney General to utilize OAG letterhead in connection with all collections (including consumer debts, even though it is contrary to Ohio's code4 ).

On April 13, 2012, the OAG announced a “Request for Qualifications for Special Counsel of Fiscal Year 2013 (“RFQ”). (R. 48–11, Jones Response to RFQ, PageID # 658). The RFQ solicited responses from qualified attorneys who wished to enter into a contract to perform debt collection on behalf of the state. The relationship would be “defined by contract” and the “appointment” would “only become effective upon execution of [the] Retention Agreement.” (Id. at PageID # 661, 663).

Defendant Mark J. Sheriff submitted a response to the RFQ on May 1, 2012. Sheriff, a partner at Wiles Law Firm, had previously been appointed as a special counsel. Sarah Sheriff also worked for Defendant Wiles Law Firm at the time under the direction of Mark Sheriff. Defendant Eric A. Jones submitted a response to the RFQ on May 2, 2012. Jones, who owned and operated Defendant Jones Law Office, had likewise served as a special counsel in previous years. Sheriff and Jones became special counsel to the Attorney General for fiscal year 2013 upon the execution of the retention agreements they received, following their selection based on their respective responses to the RFQ.

On May 24, 2012, Plaintiff ...

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