Sheriff v. Gillie

Oral argument transcript · No. 15-338 · October Term 2015 · argued March 29, 2016 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

• Eric E. Murphy, Columbus, Ohio, for the petitioner
• E. Joshua Rosenkranz, New York, N.Y., for the respondent
• Sarah E. Harrington, Assistant to the Solicitor General, amicus curiae supporting the respondent

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument first this morning in Case 15­338, Sheriff v. Gillie. Mr. Murphy. ORAL ARGUMENT OF ERIC E. MURPHY ON BEHALF OF THE PETITIONER

Eric E. Murphy: Mr. Chief Justice, and may it please the Court: Given resource constraints, Ohio law has always authorized its attorney general to appoint special counsel to undertake the attorney general's duty of representing the State in the courts. While the attorney general may appoint general deputies today, special counsel remain integral to the office. For example, the office has only 15 assistant attorneys general dedicated to collecting the billions of dollars of State debts scattered across all 88 Ohio counties. The office necessarily must rely on special counsel to be the frontline lawyers to collect these debts, yet the Sixth Circuit in this case held both that special counsel are not attorney general officers and may not use attorney general letterhead without risking Alderson Reporting Company Official ­ Subject to Final Review 1 liability under the Fair Debt Collection Practices Act. That was mistaken for two basic reasons. First, special counsel are State officers under that Act. And so they fall within the government exemption designed to protect government operations. And, second, special counsel's use of attorney general letterhead accurately conveyed their relationship to the office and furthered the purposes of the Act by putting the credibility of the office on the line and giving it a powerful incentive to monitor special counsel when they collect these debts. So I would like to begin first with the first question presented, the officer question. And the briefs have gone back and forth on what officer can mean historically and on what it should mean for the Act. I think ­­ I think what it should mean for the Act is ­­ is that the broadest conceivable definition should apply, precisely because this provision is designed to protect government operations.

Justice Ginsburg: May I ask you about the ­­ the general structure of the Act seems to be Alderson Reporting Company Official ­ Subject to Final Review 1 in­house collectors are okay, but outside collectors, whether for private or for government, fall under the Act. But do I understand your view correctly that that line doesn't exist for the State; that is, whether it's an in­house or an out­house collector, they're equally exempt?

Eric E. Murphy: I agree that ­­ I ­­ yes, you understand our position correctly. I do not think that the in­house/out­house ­­ outside dichotomy makes sense for purposes of the government exemption. And here's why: The prototypical ­­ in the legislative history, the sheriffs and marshals, as the prototypical exempt debt collectors for the government, and they are always outside of the private creditors who are the judgment creditors. So there are a core group of outside collectors ­­ the in ­­ outside of the creditor, that is ­­ who are the prototypical examples ­­

Justice Kagan: Well, why wouldn't Congress have expressed that more clearly? I mean, that's a big thing that you're saying, that the State debt collectors really ought to be treated very differently, the outside debt collectors from the Alderson Reporting Company Official ­ Subject to Final Review 1 private. And, on the face of the statute, the private and the State really are treated in exactly the same way. There are two provisions. They read identically to each other. And surely there were very clear ways of taking out the State outside debt collectors. You could have just said State debts aren't debts for purposes of this statute or State outside debt collectors aren't debt collectors for purposes of this statute, and yet Congress did none of those things. Rather, Congress adopted a set of provisions that seem perfectly parallel with respect to State and corporate entities.

Eric E. Murphy: So I disagree that they're perfectly parallel in these ways. First, I think "officer" means something different in the government context than it does in the private context. In the private context, as we cite Black's Law Dictionary, the prototypical officer is the president, the CEO, or the treasurer, high­level managers. But not ­­ that's not true for the government. The prototypical Officer can be ministerial officers, like police officers ­­

Justice Kagan: Well, I understand the Alderson Reporting Company Official ­ Subject to Final Review 1 argument that you can read the same term two different ways, but Congress did use the exact same terms.

Eric E. Murphy: But it ­­ but one is in the private context and one is in the government context. So I think, by definition, they have to have different meanings. And, number two, the inside/outside, you can see that with the creditor, because when the creditor collects, the creditor has to collect in their own name. If you look at the creditor exemption, (6)(A) ­­ a(6)(A), it says they're exempt if they collect in their own name. And, in fact, when they don't collect in their own name, in­house creditors become debt collectors, showing how the in­house/outside was supposed to work for creditors because, when you put your ­­ Congress has made the choice with respect to creditors, when you put your name on the line, the creditor will likely have a repeat relationship with the relevant debtor. And so goodwill was enough to exempt all inside creditors. You don't see this dichotomy ­­

Justice Sotomayor: What other ­­ what other position does the State call someone an Alderson Reporting Company Official ­ Subject to Final Review 1 independent contractor but we treat them as an officer nevertheless or an employee of someone? We may do it for tax purposes, but we then look at a series of factors to determine whether they're really employees or not. It's hard for you to argue these are employees; correct?

Eric E. Murphy: Yes. We don't ­­

Justice Sotomayor: They're totally without supervision in their actual debt collection; correct?

Eric E. Murphy: Well, not totally without supervision. I think that they're supervised by our standards, and they have to ­­ that's a ­­

Justice Sotomayor: Okay. But you're not claiming they're employees?

Eric E. Murphy: We're not claiming they're employees.

Justice Sotomayor: So what other situation have we ever, in any setting, treated someone whom is called an independent contractor, an officer of a company, government agency, anything? This is a novel sort of idea ­­

Eric E. Murphy: I don't think it's a ­­

Justice Sotomayor: That you as the state Alderson Reporting Company Official ­ Subject to Final Review 1 say this is an independent contractor, and now, by law, we're going to deem them an officer.

Eric E. Murphy: I just think independent contractor asks ­­ the independent contractor employee distinction asks a separate question than the officer ­­

Justice Sotomayor: Well, the problem I have is, I certainly understand officers ­­ like, with corporations. With corporations, officers are defined by their charter of incorporation. These are the officers; these are their responsibilities. It may set an income scale of some sort or tell you which agency within the corporation is going to determine that. And you have officers of State agencies that are defined by law. But I don't know that I've ever seen an officer defined by a contract.

Eric E. Murphy: Well, so two points: I think the closest analogy would be ­­ be a common law analogy that court referenced in Filarsky, which were the special deputy sheriffs. Filarsky cited treatises treating special deputy sheriffs ­­ those are sheriffs appointed to undertake the sheriff's duty for a particular task ­­ as officers within the meaning of resisting of officer statutes. Alderson Reporting Company Official ­ Subject to Final Review 1 Filarsky relied on that history in determining why the contractors in that case should be entitled to a qualified immunity. So I think that's the prototypical example. And we're not ­­ we're not arguing based on the contract. So the second point would be, if we were ­­ if all we had was the contract, we wouldn't be here today. For instance, we have collections associations ­­ they're called third­party vendors ­­ that we only contract with. There is no statute. We do not assert that they are officers or employees covered by this exemption. They just contract with us to help us with our collection activities. But special counsel are different. There is a statute, R.C. 109.08, that clearly indicates that just as, historically, sheriffs delegated to special deputies, the attorney general can delegate his sovereign duties to ­­

Justice Sotomayor: I ­­ I thought that that was just for tax collection. This is not a tax collection case, is it? I know the attorney general has read it as giving him more power than what it says on its face, but putting that aside, this is Alderson Reporting Company Official ­ Subject to Final Review 1 not a tax collection. This is a student debt collection, a consumer debt; correct?

Eric E. Murphy: That's ­­ that's confusing two points, Your Honor. The statute ­­ I disagree with the reading of the statute that suggests we can't use the letterhead elsewhere, but that's the letterhead question. That's Question 2. On the first question, whether he can appoint special counsel to undertake his task of representing the state when collecting these debts, there's no distinction between tax debts and other types of debts. He's ­­ he's ­­ they ­­ he can appoint these individuals to collect any type of debt that is certified to him. And it's the appointment that I think is key to make these individuals special counsel ­­

Justice Kagan: Mr. Murphy, can I ask, when ­­ when you are trying to fill out what it means for somebody to be an officer, are you looking to the Dictionary Act? Are you looking to the common law? Are you looking to our cases? Are you looking to some combination of the three ­­

Eric E. Murphy: I think ­­

Justice Kagan: ­­ or how would you prioritize those? Alderson Reporting Company Official ­ Subject to Final Review

Eric E. Murphy: As ­­ as Hobby Lobby suggested, I think the starting point when something is undefined is the Dictionary Act. So I start there, and then ­­ and then I ­­ I ­­ and then you look ­­ in ­­ for determining what those words mean in the Dictionary Act, I look to history.

Justice Kagan: Can I ­­ can I ask you, then, a question about the Dictionary Act?

Eric E. Murphy: Uh­huh.

Justice Kagan: Which says an officer "includes any person authorized by law to perform the duties of the office." And my question to you is ­­ is just which ­­ what is the office there?

Eric E. Murphy: I would ­­ I would call it the office of special counsel.

Justice Kagan: The office of special counsel.

Eric E. Murphy: So just like ­­ there's no office of ­­ literally no office of special counsel listed in Ohio law, but there's also no office of solicitor general. If you look at the Solicitor General Statute for the United States, there's no office ­­

Justice Kagan: But we know that office exists. Alderson Reporting Company Official ­ Subject to Final Review 1 (Laughter.)

Justice Kagan: So ­­ but ­­ okay. So ­­ so what does a statute have to do, then, to ­­ to authorize the person to perform the duties of the office?

Eric E. Murphy: Usually what the statutes do or what precisely R.C. 109.08 does, it says a superior can appoint ­­ appoint an inferior officer to engage in certain duties. Like the SG statute to help the ­­ assist the attorney general engage in his duties, that's exactly what this statute says. R.C. 109.08 says the attorney general may appoint special counsel to assist in the ­­ or to represent the State in the collections of these debts. So they say it doesn't even list the duty. I think it lists the precise duty that special counsel are to undertake.

Justice Kagan: I guess the question is whether it needs to more authorize an office. You know? A continuing, permanent thing as opposed to, you know, these officeholders who come and go, and sometimes there are more of them, and sometimes there are fewer of them, and sometimes they deal with X many cases, and sometimes they deal with Y many cases, and it all seems very fluctuating. Alderson Reporting Company Official ­ Subject to Final Review

Eric E. Murphy: I don't think that matters because, I think, historically, there were plenty of offices that had indefinite numbers. Today, for instance, assistant U.S. attorneys have indefinite numbers, and they get their duties from their superiors, I think, obviously in the same way. And I still think that the special deputy sheriffs are the best historical example. And those sheriffs were considered to be officers within the meaning of resisting of officer statutes precisely because they were trying to protect government functions. And I think that purpose analogy is pretty relevant here as well. The point of this exemption is to protect government operations, and the attorney general has been relying on special counsel to collect these debts since the time of the Great Depression. Special counsel have always been in the attorney general's Office, but debt­collecting duty ­­

Justice Sotomayor: So what does your contract require them to comply with the Act?

Eric E. Murphy: Because we're also the consumer protection branch office, and we want our people complying with the substantive standards of the Act. Alderson Reporting Company Official ­ Subject to Final Review 1 For instance, everybody agrees that tax debts are not covered by this Act, but we ask them to comply with the substantive standards of the FDCPA for tax debts. It's because we think that those are appropriate standards. What we are concerned about are the remedies and ­­

Justice Sotomayor: Are the remedies against the State?

Eric E. Murphy: Well, the remedies against special counsel. I think we are concerned ­­ Filarsky goes through various public policies ­­

Justice Sotomayor: No, I'm just talking practical question. Are you indemnifying?

Eric E. Murphy: No.

Justice Sotomayor: You're not indemnifying. They are contractually bound to follow the Act. And you're, instead, trying to give them immunity for their acts, even though they may have breached. We can get to that second question in a moment. Let's assume they breached the Act. Just an assumption. Don't go crazy. (Laughter.)

Justice Sotomayor: You want to give them Alderson Reporting Company Official ­ Subject to Final Review 1 immunity for their contractual violation.

Eric E. Murphy: Well, it would be immunity from the FDCPA. It wouldn't be immunity from other laws that would apply, for instance ­­

Justice Sotomayor: They're State officers. So what other laws?

Eric E. Murphy: Well, for instance, Section 1983. I think it's a double­edged sword. By becoming State officers, they become subject to 1983. So that would apply. Also State law. We don't give immunity even to me for reckless conduct.

Justice Sotomayor: Is there any case that you can point me to where they've been charged with a 1983 violation that you've indemnified them?

Eric E. Murphy: Well, we wouldn't indemnify them in any circumstances, but there is one case that said they were officers within the meaning of 1983. It was in the Southern District of Ohio ­­ I'm sorry. I'm blanking on the name now. But the Sixth Circuit cited it in a footnote.

Justice Ginsburg: You mentioned two categories of outside debt collectors for this scheme. One was this special counsel, for whom you are claiming exemption. Then you said there is this other category. Alderson Reporting Company Official ­ Subject to Final Review 1 How was it determined which kind of debt collector the State is going to use, the one that would be subject to the Act and the special counsel who would not?

Eric E. Murphy: You have to remember that these are lawyers. And how the process works is at JA 124 to 130, and let me just explain it briefly. It starts in­house. In­house employees of the office will send letters for most debts on our own letterhead in an attempt to collect in­house. When that proves unsuccessful, we go to third­party vendors, which are essentially collections associations which were the historically reason for this Act. They're not lawyers; they're collections associations. They send letters and make phone calls. And that's basically what they do. And that's the second step. So most debts will go through this entire process, and so they will be contacted by both these collections associations. And then the third step is special counsel, and the reason why special counsel are generally the third step is because that's when litigation becomes a distinct possibility, so you need lawyers. And that's what special counsel are here to Alderson Reporting Company Official ­ Subject to Final Review 1 do, which is continue ­­ they continue to send letters, and that's no doubt true, but then they may bring legal options on the table. They bring thousands of suits, as the two special counsel that are involved in this suit have done. So that's generally how the process works, though ­­ and we've never ­­ we've never contested that the collectors associations are officers within the meaning of the Act. And I think that gets back to the point that our position is not ­­ our position is not that all people collecting debts on behalf of the government are exempt. Our position is officers are. And so what does "officers" mean? And there I think you should interpret that broadly because the purpose of that is not to interfere with government operations. And I think this would interfere with our operations in the way the office has long collected the billions of dollars of State debts that it is required via statute to collect. And getting back to the substantive standards, I do think Filarsky has full application here for why it decided qualified immunity was appropriate in the 1983 context. I think the Alderson Reporting Company Official ­ Subject to Final Review 1 special counsel and the attorney general staff work closely together, but then special counsel would be the ones left holding the bag because there is no dispute that the attorney general staff are exempt. And so that would pull in the Filarsky point about maybe it will deter the talented individuals from collecting. Everybody agrees that these are vital government operations. They are vital to the fiscal health of the State. And that was a factor that Filarsky relied on. And then I think the third factor that Filarsky relied on was just the distracting nature of damages suits against the States. And I think this, again, is Exhibit A, because imagine what will happen if this case goes to trial. It's not just going to involve special counsel. It will involve our staff who have to respond to discovery and will likely have to testify about how the operations work. So when they're so closely connected in that way, I do think that it makes sense for the exemption to be interpreted with its purposes in mind. And when you look at the purposes and look at what will happen if this case proceeds, I think that's a good indication that these people are Alderson Reporting Company Official ­ Subject to Final Review 1 officers, and I think they easily fall within the historical definition of "officers." The special deputy sheriffs, I think, is the most analogous example, and there's plenty of cases that have treated them as officers.

Justice Sotomayor: Could you tell me what the definition is of "officer." Give me the definition.

Eric E. Murphy: I'm sorry.

Justice Sotomayor: What's your definition?

Eric E. Murphy: Oh, my definition.

Justice Sotomayor: Your definition seems to be tailored to this category. But tell me how ­­ what your general definition is.

Eric E. Murphy: So the Dictionary Act, authorized by law to perform the duties of the office. And unlike collections associations, where there is no authorization for the attorney general to appoint collections associations, there is a law that specifically authorizes us to appoint special counsel ­­

Justice Sotomayor: Does the law not authorize you to hire special ­­

Eric E. Murphy: Well, just our general ability to contract to perform our services. Alderson Reporting Company Official ­ Subject to Final Review

Justice Sotomayor: So how is this different from that?

Eric E. Murphy: Because there is a specific statute that express the ­­ delegates the attorney generals' duty of debt collection to special counsel. It's analogous to many laws that suggest the way an office position is created is a superior appointing an inferior. The law in Hartwell that created ­­ there was no office of clerk that ­­ called the clerk and officer, just said assistant treasurers can appoint the clerk.

Justice Kagan: How do you distinguish Germaine, Mr. Murphy? Because that seems a very similar kind of setup to your own. There is a statute that allows a superior to appoint some people, but those ­­ those contractors are ­­ sometimes there are more, sometimes there are fewer. The duties aren't precisely defined, and the court there says that's not an officer notwithstanding the statute.

Eric E. Murphy: So I would distinguish Germaine and several other cases both legally and factually. So start legally. There is no dispute that Germaine was a Alderson Reporting Company Official ­ Subject to Final Review 1 constitutional case. It was interpreted in the meaning of the Appointments Clause, and this Court said that when Congress uses the word "officer," it can easily use it in a broader sense than in the narrower constitutional meaning. The Court said this in Steele when it said that prohibition agents were officers within the meaning of a statute that only allowed officers to execute search warrants. And it said this in Lamar when it said Congress were officers. So the Court has repeatedly said that Congress can use the word "officer" in a way ­­

Justice Kagan: So that's to say that we take these cases, whether it's Germaine or, or your side, Hartwell, and we put them in a different box?

Eric E. Murphy: Exactly. We always caveated Hartwell by saying it was a constitutional officer basis. But, if they are a constitutional officer, I think by definition you should think that they are a statutory Officer. And, factually, I do think that the surgeon in Germaine was much more like the ­­ the surgeon in Germaine was more like the collection association than the special counsel themselves, and let me explain why. Alderson Reporting Company Official ­ Subject to Final Review 1 In Germaine the relevant office was the office of pension commissioners, and his job was to dole out pensions to appropriate parties. And so that was the official duty. And the surgeon, all he did was assist in helping with the duty. But when somebody else has actually delegated that duty, like a tax collector delegates to a deputy collector of customs, the delegation of the duty, it makes all the distinction in the world. And Auffmordt is on the same basis. It was a merchant appraiser. And the merchant appraiser was held not to be an officer in the customs office because they weren't actually going out and collecting the relevant customs; they were just helping the collector of customs. But Steele also makes quite clear that deputy collectors of customs would be officers because that's a situation where the superior officer is actually delegating his authority to the inferior officer there, the deputy. And I think that's the symmetry that matters here.

Justice Kagan: That seems ­­ if I understood you correctly, that seems an odd line to draw. It's the difference between delegating all of your authority and delegating part of your Alderson Reporting Company Official ­ Subject to Final Review 1 authority?

Eric E. Murphy: No. What is the authority? The authority of the attorney general's office and the authority of the tax collector is to represent the State in the court and to bind the State and to bind the third party in the court. Collections associations cannot do that. Special counsel absolutely do that. That's their main job. So just as ­­ for instance, assistant U.S. attorneys would be consider officers because when they stand up in court, they are representing the United States because the statute allows the AG to delegate those official duties to the deputy.

Justice Kennedy: Could you, Mr. Murphy, address the point, whether this is misleading?

Eric E. Murphy: Sure. I'll start at a high level and then get into the specifics.

Justice Kennedy: In the course of that, the statute says that you cannot falsely represent a document to be issued by. And if you could address that part of it.

Eric E. Murphy: Sure. I will start there. We think this is issued by the attorney general's office when special counsel send a letter. The official meaning of "issue" is to distribute in Alderson Reporting Company Official ­ Subject to Final Review 1 an official capacity. When they send these letters, they are distributing them in their official capacity as special counsel to the attorney general. So it's fully appropriate for the office to be listed at the top in those circumstances. I would draw, I guess, the analogy to clerk ­­ or courts. Courts issue subpoenas all the time through private attorneys nowadays, that the clerk of the court doesn't actually sign the subpoena anymore, but it has the name of the court at the top, and a private attorney is authorized to issue that subpoena. So I think that analogy is ­­ this case is an easier case, it seems to me, because special counsel have a strong relationship to the attorney general's office. But the very fact that a private attorney can issue a contract subpoena suggests that entities can issue things through people other than independent contract ­­ or other than employees.

Justice Ginsburg: What about the other provision that is allegedly violated, the one that proscribes use of any business or organization's name other than the true name of the debt collector's business or organization?

Eric E. Murphy: It's essentially the same Alderson Reporting Company Official ­ Subject to Final Review 1 logic. This strikes me as their true name when they are special counsel to the attorney general. The attorney general is their true name. It's their true name because it distinguishes them when they're acting as special counsel for the attorney general and when they're acting as private counsel for some private creditor.

Justice Kennedy: When they signed their name at the bottom and gave their law firm name, was that necessary?

Eric E. Murphy: It was. As a technical matter, it's necessary because the money gets sent to them, so they have to ­­

Justice Kennedy: Necessary for compliance with the Act?

Eric E. Murphy: Oh. I mean, it clarifies the relationship even more. It might be perhaps a closer question if they hadn't, but if they had just said special counsel, I would say, as a technical matter, it's necessary because how it works is when special counsel are assigned cases and individuals send them checks, they send them to their address. So we kind of have to.

Justice Breyer: What about only ­­ the recipient would think, at the least, the letter was Alderson Reporting Company Official ­ Subject to Final Review 1 authorized by the attorney general? What the statute says is special counsel can use the letterhead stationery only in connection with tax collection. Doesn't it? It says ­­ here it says, "The special counsels use the letterhead stationery, but only in connection with such claims arising out of those taxes." This isn't a tax. So he gets the letter, and he thinks, maybe at least the letter is an authorized letter. But it isn't an authorized letter because the statute says you can't authorize him to do it.

Eric E. Murphy: We disagree with that view of the statute. We think the statute says ­­ the first part of the statute says they shall use this letterhead, and the second says "but only in." We interpret that statute ­­ not just this attorney general but several other attorney generals have interpreted this statute only to require it in those tax contexts and to leave it to the attorney general in other context. And they haven't challenged that. At JA 114 to 115, they categorically deny it. And I think this turns a virtue into a vice, by the way. When they put our letterhead on Alderson Reporting Company Official ­ Subject to Final Review 1 there, it shows to consumers that they can actually call with concerns if they have concerns with special counsel or if they have concern with the debts. But if there is no further questions, I'd like to reserve the remainder of my time for rebuttal.

Chief Justice Roberts: Thank you, counsel. Mr. Rosencranz. ORAL ARGUMENT OF E. JOSHUA ROSENCRANZ ON BEHALF OF THE RESPONDENTS

Rosencranz: Thank you, Mr. Chief Justice, and may it please the Court: Your Honors, both questions presented really revolve around a single point: Private debt collectors retained as independent counsel for or by a State attorney general are not State officers. They are not the attorney general. They are not from his office. And they cannot legally hold themselves as being from his office. When the consumer sees letterhead that says "Office of the Attorney General," she thinks the letter comes from within that office, not from a professional debt collector with a personal financial stake in the outcome of the ensuing Alderson Reporting Company Official ­ Subject to Final Review 1 conversation. Congress saw the distinction. And as two of the questions from the Court suggested from Justice Ginsburg and Justice Kagan, the Act is actually built around this fundamental distinction. It's in the overarching definition of "debt collector," which defines the Act's coverage as "any person who regularly collects debts owed another." And then it's in each of the two provisions that have gotten a lot of focus from General Murfree's argument this morning, the two provisions that provide carve­outs. One says that the Act does not cover any officer or employee of a private business; the other says the Act doesn't cover any officer or employee of a State.

Chief Justice Roberts: If I could clarify, there may be two separate questions that may be part of your answer. But are these officers under State law ­­ whether they are under the debt collection Act or not is a separate question. Is it right that they're properly considered officers under State law because that is how the attorney general has designated them and views them?

Rosencranz: Absolutely not, Your Honor. Ohio law is the same as the law that's Alderson Reporting Company Official ­ Subject to Final Review 1 codified in the Dictionary Act. It's the same law that this Court has adopted in Metcalf. There has to be a permanent and continuing position. It has to be duties that are created by law, not ­­

Chief Justice Roberts: That's not true with respect to qualified immunity. There doesn't have to be a permanent ­­ I'm sorry. What was the other adjective? Permanent and what?

Rosencranz: Permanent and continuing office. Yes, Your Honor, you are exactly right. Filarsky is a qualified immunity case. Filarsky did not conclude that the person who got qualified immunity were officers. It concluded that they got qualified immunity even though they were not officers, just like in common law. Common law provided the posse comitatus ­­ you know, the posses who were deputized ­­ qualified immunity even though they were not officers. And this goes back to whether we're talking about the Dictionary Act definition or the definition of common law. Collections special counsel are simply not Officers even by designation of the attorney general. I mean, the attorney general has done Alderson Reporting Company Official ­ Subject to Final Review 1 everything humanly possible to divorce these individuals from the State.

Chief Justice Roberts: But they authorized it ­­ I'm sorry. Go ahead.

Justice Ginsburg: I think you have recognized ­­ tell me if I'm wrong about this ­­ that the special counsel could send out a dunning letter, and the first sentence says, in boldface, "We write to you as special counsel to the attorney general who has authorized us to collect a debt you owe to X government agency." That would be perfectly all right. No attorney general letterhead, but that opening sentence would be okay. "We have been authorized by the attorney general to collect a debt you owe to a State agency." No problem with that.

Rosencranz: That's correct, Your Honor. So just to be clear, we're shifting ground now to point 2 which is about whether it's a violation of the statute. And it is a violation of the statute because ­­ but I think in your hypothetical, Your Honor, the letterhead is the law firm's own letterhead. So it's a violation of the Alderson Reporting Company Official ­ Subject to Final Review 1 statute in this context because they are using the true name of the attorney general as their own true name. And, in the context that you just described, Your Honor, they are simply referring to who the client is or who it is that has hired them.

Justice Alito: I don't really see the difference between those two situations. But even to push the point a little bit further, suppose the State created a special seal for the special debt collections program of the State of Ohio or something like that, and they put that at the top of the letterhead. Would that be a violation of the statute?

Rosencranz: Again, so now we're talking about the substantive provisions. And that I'm happy to shift there. I think it probably would not be. I would have to know a little bit more about what the seal says and whether it conveys to ­­

Justice Alito: It's the seal of the State of Ohio, and it says "The Program of Special Debt Collection."

Rosencranz: Oh, Your Honor, I think that would be highly misleading. It would violate the same provisions that we're talking about. Alderson Reporting Company Official ­ Subject to Final Review

Justice Alito: Why would it be misleading? What would the recipient of that letter think that the recipient of the letter would not think if that recipient received the letter from the actual office of the attorney general?

Rosencranz: So I think the recipient of the letter would think the same thing that the recipient of this letter thinks. Let me just turn to what the recipient of this letter thinks. Just common, everyday experience, when you receive a letter that says at the letterhead "Office of the Attorney General," you think that the source of the letter is coming from someone within the attorney general's office.

Justice Kagan: I'm not sure what difference it makes. I mean, it seems to me that a letter like this gives you two kinds of information. One is it says "You owe some sum of money to the State," and that's perfectly true. And the other is that the person signing the letter is acting as an agent of the State, to collect that sum of money. And that seems perfectly true too. So, you know, the letterhead is just a way of saying, "I'm acting as an agent of the State to collect a sum of money owed to the State. And, yes, Alderson Reporting Company Official ­ Subject to Final Review 1 if you don't pay this sum of money, the State is not going to feel all that good about you." So it's all true.

Rosencranz: Your Honor, so let's go to the text of the statute, and Congress was very clear about that. The letters use a name other than the "true name" of the debt collectors ­­

Justice Kagan: Well, you can't really be very serious about that, because in Justice Ginsburg's hypothetical, they were using the name of the attorney general too.

Rosencranz: No, Your Honor ­­

Justice Kagan: One uses name in the text; one uses the name in the letterhead, but both are designed to do the exact same thing, which is to say, "I'm acting as agent of the Ohio Attorney General in order to collect a sum of money owed to the State."

Rosencranz: Your Honor, they are doing two different things. The statute talks about using your own true name, and then what you can't do is use someone else's true name as your own. The statute doesn't prohibit referring to your client or referring to the person who hired you in the text of the letter. That's not using someone else's name. Alderson Reporting Company Official ­ Subject to Final Review 1 That is correctly conveying information.

Justice Alito: I thought Justice Kagan asked you a functional question, and you are responding with a formal answer. And you may win on formal grounds, but if we could go back to the functional point. Let's suppose that I received two letters. One is the letter, and I owe a debt to the State of Ohio. And one is the letter that was sent in this case; the other is a letter that's identical except that it is signed by an assistant attorney general of the State of Ohio. Why do I have a different reaction to the former letter as opposed to the latter?

Rosencranz: Well, Your Honor, my answer is the attorney general's answer on pages 416 to 17 and page 334. The attorney general explains why he and the various debt collectors want to use attorney general's letterhead. And they say it's because, quote, they want ­­ they want to "get the debtor to prefer the debt with the State over and above these other debts." The attorney general believes that this letterhead communicates something that letterhead of Wiles, Boyle does not. Alderson Reporting Company Official ­ Subject to Final Review

Justice Alito: No, you're not answering my question. I wasn't asking you to compare the letter that was sent with a letter that makes no reference to the Attorney General of Ohio. I'm asking you to compare a letter that is sent by an assistant attorney general, identical in all other respects to the letter that was sent in this case with the type of letter that was sent here. What ­­ is there a difference in the reaction of the average consumer, the least sophisticated consumer, to those two letters?

Rosencranz: Yes, Your Honor. I would have a different reaction to those two letters. When I hear from someone who is in the attorney general's office, I think I am communicating with someone who is a public servant, who is doing his earnest ­­

Justice Breyer: You know, they all the time hire people to do different things who aren't public servants. I mean, why would you think that? I don't know. I think he's a public servant. Do I think he's an officer or a contractor or a ­­ no average person has any idea what we're talking about. Alderson Reporting Company Official ­ Subject to Final Review

Rosencranz: Your Honor, people react differently and I would react differently ­­

Justice Breyer: Well, you might. But what the statute says, it says the ­­ here's what it says literally: "The use ­­ it is wrong to use any business, company or organization's name other than the true name." Right?

Rosencranz: Yes.

Justice Breyer: So if Filene's Basement hires Mr. Smith, who is an independent collector, and Mr. Smith writes a letter ­­ just what Justice Ginsburg said. It says, Filene's Basement has asked me to write to you to say will you please pay their debt. Okay? There. They've used a name other than their own name. The statute doesn't cover that, does it?

Rosencranz: Of course not. And that's ­­

Justice Breyer: Of course not. Now, in other words, it has to be taken as modified by the first part of this. There has to be something that's false, deceptive, or misleading about it.

Rosencranz: No, Your Honor ­­

Justice Breyer: If you don't interpret it Alderson Reporting Company Official ­ Subject to Final Review 1 that way, I don't see what it can mean, unless it picks up the ­­ Justice Ginsburg's hypothetical.

Rosencranz: Your Honor, the reason I said "of course not" is because referring to someone in the body of the letter is not the same as using their ­­ their ­­

Justice Breyer: It isn't? I have just used their name.

Rosencranz: Your Honor ­­

Justice Breyer: I said they hired me. Isn't that using their name?

Rosencranz: It is ­­ no. If that's what the statute ­­

Justice Breyer: In English. I'm not talking about in statutes.

Rosencranz: No, Your Honor. If that's what the statute meant, then it would mean that you couldn't use the signatory's name either or ­­

Justice Breyer: Of course. It would be ridiculous. And, therefore, it isn't to be taken literally to refer to any use. And I guess in context it could be taken to mean a misleading use. And if it means a misleading use, I see nothing here misleading. What is it?

Rosencranz: Well, so, Your Honor ­­ Alderson Reporting Company Official ­ Subject to Final Review

Justice Breyer: And if there is nothing here misleading, and it doesn't mean misleading use and it doesn't mean ordinary English use, what does it mean?

Rosencranz: Your Honor, the ­­ a central premise of this statute, as I said at the outset, is to distinguish in­house creditors from outside creditors. Why? Because outside creditors were the ones who were guilty of the worst abuses. Outside creditors were the ones who misled, and Congress was trying to make sure that when the consumer is talking to a debt collector, they knew who they were precisely because the reputational interests of the attorney general's office are guarded by people within the attorney general's office in a way that debt collectors don't necessarily guard the interests of the attorney general's office. And an in­house ­­

Justice Kagan: Well, I think ­­ I would think that that would be a reason for using the ­­ the heading, because now the ­­ the Ohio Attorney General is responsible for all the actions that this debt collector is going to take. And the Ohio Attorney General is going to be more vigilant in policing the actions of that debt collector. You Alderson Reporting Company Official ­ Subject to Final Review 1 should want that.

Rosencranz: Well, Your Honor, that may ­­ in some world, that may be conceivably true. But it's not necessarily true. I mean, the ­­ the Petitioners have conceded that when a debt collector does this with IBM's letterhead, it would be a violation precisely because ­­

Justice Breyer: Why? Why? Why? Filene's Basement hires a service, and they say, here are 500 letters, and they all say "Filene's Basement." Now, we want you to send out on these letters ­­ letterhead so they'll know it's us ­­ you say ­­ and you say you're a special representative hired by us to pay the debt. Now, what's wrong with that? I would think it would be ­­ I mean, what worries me is when you don't have the letterhead. Then it it could be some scam. You see? But when you do have the letterhead, they're really getting themselves into trouble if it's a scam. And this isn't a scam.

Rosencranz: Well, Justice Breyer, the ­­ it gets back to the ­­ the question you had when you made originally when General Murfree was up here. I mean, the ­­ it can't be that just because you are referring to someone's name in the Alderson Reporting Company Official ­ Subject to Final Review 1 letterhead, you used their name, because Section G talks about the requirement that you actually have to identify the creditor. And in the ­­

Justice Breyer: So identifying the creditor. My point is, if it's the AG's letterhead or Filene's Basement's letterhead or Macy's letterhead, if they still exist, in ­­ in ­­ if ­­ if it's the official letterhead of the company, the recipient is more likely, not less likely, to understand what's happening. That's ­­ as long as ­­ yes. You see my point?

Rosencranz: I see your point.

Justice Breyer: Okay. Then what's the answer to my question?

Rosencranz: And ­­ and the answer is, Congress made the decision. I know ­­ I know that embedded in your question is the assumption that there is a ­­ a materiality requirement built into the first provision; that is, the first sentence. But Congress articulated a statute that said it is a violation to do any of the following things. And when Congress said it's a violation to do any of the following things, it's not up to the courts to ­­ to Alderson Reporting Company Official ­ Subject to Final Review 1 override Congress that ­­

Justice Kagan: I don't think that this is a materiality question. I actually do think that this is just a question of is it false or not. Is there anything false about using the attorney general's letterhead when you're an agent of the attorney general? That's the question.

Rosencranz: Well, so, first, just a point of clarification. The attorney general's contract with these individuals says that they are not an agent. But the direct answer to the question is ­­

Justice Kagan: Well, they obviously are an agent in all the usual uses of that term. They're acting for the Attorney General in collecting a debt. And the question is, is there anything false about saying, by way of the letterhead, I'm acting for the attorney general?

Rosencranz: Your Honor, it's totally fine to say I am acting for the attorney general. You can't do it using the ­­

Justice Kagan: Well, why? If you ­­ if I use my own letterhead, somebody is likely to throw it out before they get to the text because they've never seen this organization before. You know, the Alderson Reporting Company Official ­ Subject to Final Review 1 letterhead is a good way of really making the point, I am acting for the attorney general.

Rosencranz: Your Honor, the Congress wanted individuals who are unsophisticated to know who they were dealing with, especially when they were dealing with a professional debt collector who gets a cut of the proceeds.

Justice Kagan: But they're dealing with somebody who is acting for the attorney general.

Rosencranz: They are ­­ yes, they are, but they are dealing with someone who is acting for the attorney general in a context in which Congress was deeply concerned about how those individuals have the wrong incentive structures and will do anything to get their third of the proceeds.

Justice Kennedy: But ­­ but you're making the argument somewhat the ­­ like the argument that you made in the brief. The ­­ the debtor gets the letter from the attorney general, says, oh, the attorney general, I'm really concerned. They ought to be concerned because the State of Ohio can garnish their tax for the unpaid debt. It ­­ it's different. They ­­ they ought to know that it's the State. And you ­­ you say they don't ­­ for some reason you don't want them to be intimidated because Alderson Reporting Company Official ­ Subject to Final Review 1 they know it's the State.

Rosencranz: Your Honor, my ­­

Justice Kennedy: The State has a very strong interest in letting the debtor know that it's the ­­ that it's its debt.

Rosencranz: Your Honor, my main point is that Congress wanted people to know ­­ that is, consumers to know who they're dealing with. But to answer the question, it is simply not true that every debtor is better off paying the State's debt than some other debt. The Attorney General of Ohio does not have many more powers than anyone else has. And if you're choosing between paying ­­

Justice Kennedy: That's ­­ that's for the debtor's decision to make. That's the debtor's decision.

Rosencranz: Exactly. But the debtor needs to ­­

Justice Kennedy: But you ­­ it ­­ it seems to me that you ­­ your ­­ your solution is almost misleading in ­­ in another direction.

Rosencranz: Your Honor, there is nothing wrong with the debt collectors saying everything that you've just described as ­­ as to Alderson Reporting Company Official ­ Subject to Final Review 1 what could happen just because the State is involved. The truth is, the State has very few powers ­­ I mean, they have the power to take your lottery winnings. They have ­­ I mean ­­ and most debtors actually don't have a lot of lottery winnings. They have the power to ­­ to take your income tax refund. Most debtors do not expect an income tax refund anytime soon. That's it. The State has no additional power. And it is actually misleading to try to convey to these individuals why it is that ­­ excuse me. It's misleading to convey to these individuals that the debt collectors are from within the office.

Justice Sotomayor: Basically, this argument, as I understand it ­­ maybe you can correct me ­­ is that even a private collector could use the name of Filene's Basement because it's not misleading. It's telling the person, assuming they say, "I have been hired by Filene's Basement to collect your debt on Filene's Basement's letterhead and sign it "debt collector X, Y, and Z." Under this argument, that would be okay because it's not misleading?

Rosencranz: I ­­ I got confused on the question, but under the ­­ under ­­ Alderson Reporting Company Official ­ Subject to Final Review

Justice Sotomayor: Well, the questions have been asked of you. That would be the import.

Rosencranz: Yes. Yes. That is correct.

Chief Justice Roberts: No. Wait, wait ­­

Justice Sotomayor: And if I understand you correctly, you're saying we make a different judgment than Congress is about the relative weight of how misleading this is, but Congress made this judgment?

Rosencranz: Congress ­­ that is exactly correct, Your Honor. Congress made this judgment on the very specific ­­ on the very specific terms, the enumerated violations, Congress said it's misleading to do this. And Congress wanted to ­­

Chief Justice Roberts: I'm sorry. I don't want to interrupt, but I'm confused about your answer and maybe the question, or maybe both. Did you say ­­ as I understood the question, you have letterhead that says "Filene's Basement," and it's a private collector who's acting on behalf of Filene's Basement. Is that misleading?

Rosencranz: Yes, for exactly the reason that the attorney general conceded below. Alderson Reporting Company Official ­ Subject to Final Review 1 The concession was about IBM. But it's the same exact point. Debt collectors are different from the ­­ from the creditors, and Congress wanted people to know with whom they were communicating.

Chief Justice Roberts: Thank you, counsel.

Rosencranz: Thank you, Your Honor. ORAL ARGUMENT OF SARAH E. HARRINGTON ON BEHALF OF THE UNITED STATES

Chief Justice Roberts: Ms. Harrington?

Sarah E. Harrington: Thank you, Mr. Chief Justice, and may it please the Court: I'd like to make a couple of points on the first question presented and then try to answer some questions on the second question presented. The FDCPA applies to Ohio's debt collection special counsel because outside the context of this litigation, Ohio has chosen not to treat them as officers or employees of the State. There has been some discussion in the top half about Ohio Code Section 109.08. Excuse me. General Murfree has conceded that that does not create an office of special counsel. Just as a side note, the Office of U.S. Solicitor General is described and duties are given Alderson Reporting Company Official ­ Subject to Final Review 1 in the Code of Federal Regulation. There is no similar set of regulations that would create an office of special counsel here. But even if you were to assume, for the sake of argument, that the statute ­­ I'm sorry ­­ authorized the attorney general to create an office of special counsel and to treat the people that hired as special counsel as officers, that is not done so here. In the retention agreement, the attorney general has been careful to say that these people are not to be considered employees of the State for any purpose. The agreement not only does not indemnify the special counsel; it requires the special counsel to indemnify the State. It doesn't give them any rights to collect any debts. It gives the attorney general complete discretion over what debts the special counsel may collect.

Chief Justice Roberts: If you have a special ­­ I don't know what you call them ­­ prosecutor, special counsel who's appointed from U.S. Attorney's Office, say, because the other ­­ the office is recused from a particular matter, just for that one case, does he use ­­ maybe as factual matter, does he use the letterhead of the Alderson Reporting Company Official ­ Subject to Final Review 1 U.S. Attorney's office?

Sarah E. Harrington: I don't know in prosecuting cases. When the Federal government hires outside debt collectors to collect debts owed to the Federal government, they do not use ­­ those people do not use Federal government letterhead.

Justice Breyer: What about ­­ the states often do this. They hire a special lawyer to prosecute a special case ­­ it could be from a firm ­­ or it could be a set of cases. Could last a year. Now, are all of the people who do that, who fulfill that job ­­ it's not normally done federally, could be, I guess ­­ are they officers or not?

Sarah E. Harrington: Well, I think ­­ you know, this Court, all the time, sees private lawyers who are here representing States, and I don't think that they would be considered officers of the State merely because ­­

Justice Breyer: So if Mississippi hires a person to prosecute a murder case and it's called "special counsel" for the purpose of prosecuting murder cases for the next year, whatever, they're not officers? Alderson Reporting Company Official ­ Subject to Final Review

Sarah E. Harrington: Well, I guess my real answer is it's really up to the State. And so you would look at how the State treats those people. Here, if you look at how the State has treated the special ­­ the debt collection special counsel, outside the context of this litigation, it does not treat them as officers or employees. In the retention agreement, the attorney general has done everything possible to disclaim any inference that these people are part of the State government.

Justice Breyer: That's true.

Chief Justice Roberts: But he authorizes use of the seal.

Sarah E. Harrington: He authorizes the use of the letterhead, but ­­

Chief Justice Roberts: Well, that's ­­ you said they've done everything possible to separate them from the attorney general. That seems to be a pretty good effort to connect them to the attorney general.

Sarah E. Harrington: But as you can ­­

Chief Justice Roberts: "Here, use our stationery and our letterhead."

Sarah E. Harrington: But that ­­ the use of the letterhead doesn't ­­ isn't giving them any sort of Alderson Reporting Company Official ­ Subject to Final Review 1 sovereign authority, doesn't give them any discretion to bind the States. It doesn't create an office. You know, if you have nine special counsel one day and then eight special counsel the next day, you don't think of there being a vacancy in the office of ­­ office of special counsel. Generally when you have an office, you either have an officer or a vacancy. But here there's just ­­ the attorney general can hire any number of special counsel ­­

Chief Justice Roberts: I guess my point is simply that authorizing use of the seal does suggest a connection with the individual doing the debt collection work and the attorney general. And you said there's no way ­­ or they've done everything possible to show there's no connection.

Sarah E. Harrington: Well ­­

Chief Justice Roberts: I can't imagine anything they could do more dramatically to ­­ to show that there is a connection than say, "Here, use my letterhead."

Sarah E. Harrington: Well, I think if you look at retention agreement, what I meant is they've done everything possible in structuring the relationship between the special counsel and the office of Alderson Reporting Company Official ­ Subject to Final Review 1 attorney general to make clear that they are not a part of the office. Now, with respect to using the letterhead, I think that's intended to sort of convey a sense of seriousness to debtors who receive the letters. That's the point that ­­ that the State has made.

Chief Justice Roberts: Well, I expect it's meant to convey that this person is working for us. This person, I, the attorney general, think this is somebody who's acting on my behalf.

Sarah E. Harrington: Well, it's true that outside debt collectors are acting on behalf of the creditors who hire them, but that does not make them part of the creditor organization. You know, I think if you look at the definition of "debt collector" and the exemptions whether, with respect to private creditors or ­­ or public creditors, it's clear that Congress intended this statute to apply to independent contractors. But it also intended to allow creditors, whether private or public, to use their own in­house people without being subject to the requirements of the Act. And so it's really totally up to the State. If it's going to use its inside people, then it Alderson Reporting Company Official ­ Subject to Final Review 1 doesn't have to comply with the FDCPA. But when it hires outside third­party contractors, it does. If I could just address what Justice Breyer was asking about, the use of your true name, I think if you filled out a form that asked for your name and then said, "Have you used any other name?" you would take that to mean as your own name. And so I think that's the sense in which the statute means the use of another name. There's generally ­­

Justice Breyer: Well, this isn't that. Nobody thinks this person is the attorney general of the State.

Sarah E. Harrington: Well, I think ­­

Justice Breyer: The reason that's underlying disturbing me is there is a pretty well­known scam where people get phone calls from a person who identifies himself as somehow connected with the IRS, and you better send them $300 or $3,000 immediately to a certain post office box or you might find yourself in jail. Okay? Now, that's a scam.

Sarah E. Harrington: Right.

Justice Breyer: And if you get a letter out of the blue by somebody purporting to be an Alderson Reporting Company Official ­ Subject to Final Review 1 official person and there is nothing on the letterhead that suggests that you are such, you might well think, if you've at least had the experience I'm talking about, that this is a scam. And so what the purpose of this letterhead does is it is some indication to the recipient that it's not a scam, and the rest of the letter makes clear precisely what it is. So what I fail to see is anything at all misleading ­­ indeed, to the contrary ­­ in respect to using a letterhead. And if there is nothing misleading at all about it, I think I could interpret this statute that requires the contrary requirement in some form or other.

Sarah E. Harrington: Well, sir, I disagree that there's nothing misleading about it. I think it gives the impression that the letter was issued by the office of the attorney general, because there is a convention that, when you use the letterhead, that's signaling who the sender of the letter is. A law firm would never send a letter using its client's letterhead because that would give the wrong impression about who's sending the letter.

Justice Breyer: Why is it not sent by the attorney general in the sense that Filene's Basement Alderson Reporting Company Official ­ Subject to Final Review 1 gives 500 pieces of stationery to a debt collector and says, "Send them on this stationery. I want people to know it comes from us"?

Sarah E. Harrington: Well, that would be a violation of the Act, too, if the debt collectors were outside the independent contractor ­­

Justice Breyer: My goodness, then what we're going to have is all ­­ in other words, it's ­­ in your interpretation of this law, a piece of stationery that tends to indicate that the debt is ­­ the debt collector is indeed speaking for whom he purports to speak for, anything that indicates that in the view of the government violates this statute. I'd worry about it just as a practical matter because I think that might lead to more scams rather than fewer.

Sarah E. Harrington: I don't believe that's our view of the statute. I think the ­­ you know, the ­­ the FDCPA is premised on separating the creditor from outside third­party debt collectors. And so a debt collector has to be clear that he is not the creditor. And so when they use the creditor's letterhead, that gives a false impression. If they're worried that they're not going to be taken seriously, they can include with Alderson Reporting Company Official ­ Subject to Final Review 1 the letter, a separate letter from their ­­ from the creditor, from the attorney general, saying we authorized this person.

Justice Breyer: It's not being taken seriously. It's the false impression that ­­ we want the true impression that this comes from the person to whom you owe the debt.

Sarah E. Harrington: So you could include a separate piece of paper that verifies that, if you're concerned about that.

Justice Breyer: Oh, my goodness. The simple way to do that is send it on the stationery of that purpose.

Sarah E. Harrington: But Congress has made a determination that ­­

Justice Breyer: I don't see anything here that says you cannot send it on a letterhead of the person for whom you owe the debt. I just don't see that written here.

Sarah E. Harrington: Well, what Congress said is you can't give a misimpression as to who has issued the letter ­­

Justice Breyer: Misimpression. And the misimpression?

Sarah E. Harrington: The misimpression is that Alderson Reporting Company Official ­ Subject to Final Review 1 the attorney general's office has issued the letter. Now, remember, the only reason we're getting to the second question presented is if the special counsel, our officers, are not ­­

Justice Alito: Suppose ­­

Sarah E. Harrington: ­­ officers ­­

Justice Alito: Suppose that the special counsel prepares a letter just like the letter that's ­­ that was issued in this ­­ letters issued in this case. But before they send it, they take it to the attorney's office ­­ attorney general's office. They show it to somebody there. And they say, do you authorize me to send this? And the person says, yes, you're authorized to send it. Would it be misleading under those circumstances?

Sarah E. Harrington: It would, because it would still give the impression that it was issued by the office of the attorney general. And if it's sent by the third­party outside debt collector, then it's not issued by the office of the attorney ­­

Justice Alito: Even though it's approved ­­ suppose that they ­­ they take it to General DeWine, and they say, General, I would like to send this. Am I authorized to send it? He says, yes, that's fine. That's still misleading? Alderson Reporting Company Official ­ Subject to Final Review

Sarah E. Harrington: Yes, because in section ­­ Section 9, it talks about authorized, issued, or approved by a State agency. And so if you give the misimpression as to any one of those things, then it's a per se violation of the statute.

Justice Kennedy: It's your ­­ it's your position ­­ it's the position of the government of the United States that the Attorney General of Ohio is in violation of this law?

Sarah E. Harrington: No, that the special counsel are in violation ­­

Justice Kennedy: No. But he's approved it.

Sarah E. Harrington: He's ­­ he has sanctioned a violation of the law. But I ­­

Justice Sotomayor: But under your position, the ­­ the attorney general of the State of Ohio is in violation of the law. That's the position of the United States that you're arguing in this court?

Sarah E. Harrington: No, sir. Our ­­ may I answer?

Justice Kennedy: Sure.

Sarah E. Harrington: Our view is that the attorney general has authorized the special counsel Alderson Reporting Company Official ­ Subject to Final Review 1 to do something that is a violation of the law. He has not himself ­­ he is not subject to the law, so he has not himself violated the law.

Justice Kennedy: Well, the next time you come here in a criminal or a civil case and someone has authorized something, I will remind you of your answer. (Laughter.)

Chief Justice Roberts: Thank you, counsel. Mr. Murphy, you have four minutes remaining. REBUTTAL ARGUMENT OF ERIC E. MURPHY ON BEHALF OF THE PETITIONERS

Eric E. Murphy: Thank you, Mr. Chief Justice. Just a few points. First, going to Justice Kagan's question, I really think they are turning a virtue into a vice here. They're flipping the Act on its head. If you ­­ if you look at the tax statute that requires the AG to give this letterhead to special counsel for tax debts, the very next provision ­­ the very next provision of that Act, which was known as the Taxpayer Bill of Rights, the very next provision of that Act requires the AG to appoint problem resolution officers to handle complaints by debtors Alderson Reporting Company Official ­ Subject to Final Review 1 about special counsel or the employee assigned to the case.

Justice Sotomayor: How do they know who to call?

Eric E. Murphy: Precisely because the AG's letterhead ­­

Justice Sotomayor: Does the Act say that the special debt collector has to give them the AG's problem­solving ­­

Eric E. Murphy: No. But I think that ­­ that was the point of the law, was to put the letterhead, so they know to call the office. And then we have the regular customer service hotline that they can call and they'll ­­ they'll get ­­

Justice Sotomayor: But that's quite interesting, because the only number that's in these letters is the net ­­ number of the debt collector.

Eric E. Murphy: Well, that's right. But by putting the letterhead on the ­­ on ­­

Justice Sotomayor: Is there any obligation in the contract for the debt collector, when he receives a customer complaint, to give them the number of the AG's customer service ­­

Eric E. Murphy: There's not an obligation in the contract, but there certainly is an obligation Alderson Reporting Company Official ­ Subject to Final Review 1 in the contract for them to report that complaint to the AG. And I ­­ I ­­ I think that the AG has interpreted these problem resolution officers more broadly to allow it to handle all sorts of complaints. But I think the reputational idea is also significant, because when the AG authorizes these individuals to use the letterhead, that's a powerful incentive on the AG or the AG's office ­­

Justice Breyer: It also uses the word "issued." And so what about "issued"?

Eric E. Murphy: Well, I think that ­­ just look at the ­­ we're the only party that has actually cited the dictionary definition of "issue." And the dictionary definition of "issue" is to distribute in their official capacity. So when special counsel send these letters, they are distributing it in their official capacity as special counsel to the attorney general, not as private lawyers with their private law firms. I think that's an easy interpretation of "issue" that would authorize the ­­

Justice Kagan: But if we get to the second question, we've already decided that these people are not officers. They're independent contractors. Alderson Reporting Company Official ­ Subject to Final Review 1 They might be agents in a casual sense of the word, but they're not officers.

Eric E. Murphy: That's absolutely correct. Our first­level answer would be that they are ­­ should be ­­

Justice Kagan: Right. So if we assume that they're not officers, then I think Justice Breyer's question holds: What does it mean for that person to issue something as opposed to the Ohio ­­

Eric E. Murphy: I do think that you ­­ I do think that they're distributing it in their official capacity as special counsel. Whether they're independent contractors, officers, or employees, I think that's a separate question. And then I think it goes to the clear statement rule with respect to Justice Kennedy's comment. I think it's just a fundamental breach of etiquette, or of federalism, to suggest that private parties are the ones who get to decide who gets to use an attorney general's letterhead.

Justice Kagan: May I ask you ­­

Chief Justice Roberts: I think that question should be with the attorney general.

Justice Sotomayor: That's fine. But as far as I see it, isn't there one of these two cases Alderson Reporting Company Official ­ Subject to Final Review 1 where someone who wasn't the special counsel signed the letter?

Eric E. Murphy: That's absolutely true. But they've waived that argument because their theory of the case is that it's just the letterhead that's misleading. And I can easily ­­ I can get into the facts of that issue. That issue was this person got a call from the person ­­ from the Plaintiff, the Plaintiff asked for her balance. She sent the balance on the letter. It says, per your request, here is your balance, and then the Plaintiff turned around and sued the individual after they requested for the letter. So I think they've largely abandoned that idea that the letterhead was misleading. Thank you.

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:05 a.m., the case in the above­entitled matter was submitted.)