Case: 16-11518   Date Filed: 09/29/2016   Page: 1 of 11


                                                                     [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-11518
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:15-cv-01129-ODE



BRYSON RAY,

                                                            Plaintiff-Appellant,

                                   versus

MCCULLOUGH PAYNE & HAAN, LLC,

                                                           Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                            (September 29, 2016)

Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.

ED CARNES, Chief Judge:
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       The venue provision in the Fair Debt Collection Practices Act (FDCPA)

requires that “[a]ny debt collector who brings any legal action on a debt against

any consumer shall . . . bring such action only in the judicial district or similar

legal entity — (A) in which such consumer signed the contract sued upon; or (B) in

which such consumer resides at the commencement of the action.” 15 U.S.C.

§ 1692i(a)(2). In this case, the law firm of McCullough Payne & Haan, LLC filed

a lawsuit in state court against Bryson Ray, a consumer-debtor. In compliance

with the FDCPA’s venue provision, the McCullough firm brought that action in

Fulton County, Georgia, where Ray resided. After obtaining a judgment against

Ray in that action, the McCullough firm initiated a garnishment proceeding against

Ray’s bank to collect on the judgment. 1 As required by Georgia law, it brought the

garnishment action in Cobb County, Georgia, where the bank, as the garnishee,

was located.

       In response to the garnishment action, Ray filed this lawsuit, alleging that

the McCullough firm had violated the FDCPA by bringing the garnishment action

in a judicial district other than the one in which Ray resided or signed the

underlying contract. On the McCullough firm’s motion, the district court


       1
         The McCullough firm contends that the record “does not indicate whether the
garnishment action was a wage garnishment [against Ray’s employer] or a bank garnishment
[against Ray’s bank].” Ray contends that it was a bank garnishment action. Because the
outcome of this case does not depend on that issue, we will assume without deciding that Ray’s
bank was the defendant in the garnishment action.


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dismissed Ray’s complaint, concluding that the FDCPA’s venue provision does not

apply to garnishment actions under Georgia law because the provision applies only

to legal actions “against any consumer” and a garnishment action is against the

garnishee, not the consumer. Ray appeals the district court’s dismissal, which we

review de novo. See Robbins v. Garrison Prop. & Cas. Ins. Co., 

,

585–86 (11th Cir. 2015).

      The only question in this case is whether the FDCPA’s venue provision

applies to post-judgment garnishment proceedings. The McCullough firm

maintains that this Court has already decided that question in Pickens v. Collection

Services, 

(11th Cir. 2001) (unpublished table decision). In that

case, the district court concluded that the FDCPA’s venue provision does not apply

to Georgia garnishment actions and we affirmed without opinion under 11th

Circuit Rule 36-1, which has since been repealed. See id.; Pickens v. Coll. Servs.

of Athens, Inc., 

, 1380–81 (M.D. Ga. 2001). The firm asserts

that “the Eleventh Circuit affirmation in Pickens is binding authority on this

panel.” That could not be more wrong. In this Court, unpublished decisions, with

or without opinion, are not precedential and they bind no one. See 11th Cir. R. 36-

2 (“Unpublished opinions are not considered binding precedent . . . .”); United

States v. Irey, 

, 1215 n.34 (11th Cir. 2010) (“Unpublished opinions

are not precedential . . . .”); U.S. Steel, LLC v. Tieco, Inc., 

, 1280



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n.3 (11th Cir. 2001) (“An affirmance pursuant to Rule 36-1 has no precedential

value.”); Va. Props., Inc. v. Home Ins. Co., 

, 1132 n.2 (11th Cir.

1996) (explaining that when a panel affirms without opinion under Rule 36-1, the

decision “will have no precedential value”) (quotation marks omitted). And, of

course, district court opinions are not binding on us either. See Pereda v.

Brookdale Senior Living Cmtys., Inc., 

, 1273 n.7 (11th Cir. 2012).

No binding precedent answers the question whether the FDCPA’s venue provision

applies to Georgia garnishment proceedings.

      Three other circuits have answered that question as it pertains to the laws of

other states. The First Circuit did so in Smith v. Solomon & Solomon, PC, 

(1st Cir. 2013), which involved post-judgment enforcement proceedings

under Massachusetts’ trustee process. Like the McCullough firm, the law firm in

Smith obtained a judgment against a consumer in the judicial district in which the

consumer resided and then, about ten months later, it filed a collection action in

another district against a “trustee” (in that case, the consumer’s employer), seeking

to attach the consumer’s wages to satisfy the judgment. 

The consumer

filed suit, alleging that the law firm’s second action violated the FDCPA’s venue

provision. 

parties agreed that “the FDCPA venue provision applies

only to legal actions brought ‘against any consumer,’” they disputed “whether a




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post-judgment enforcement proceeding . . . qualifies as a legal action ‘against any

consumer.’” 

(quoting 15 U.S.C. § 1692i(a)).

      To answer that question, the Smith court looked to the state statutes and

rules that governed Massachusetts’ trustee process. The statute required the

judgment-creditor to file the collection action in the county in which the trustee or

employer (not the consumer) was located, and the rules required the judgment

creditor to direct the summons to the trustee or employer (not the consumer) and

required the trustee or employer (not the consumer) to respond. 

–76. The

First Circuit found that although the consumer had an interest in the proceedings

and the statute allowed her to request a change of venue, “[f]undamentally . . . a

Massachusetts trustee process action is geared toward compelling the trustee to act,

not the debtor.” 

For those reasons, the First Circuit concluded that

because post-judgment enforcement proceedings under Massachusetts law did not

qualify as a legal action “against the consumer,” the FDCPA venue provision did

not apply to them. 

      The Eighth Circuit reached the same result in Hageman v. Barton, 

(8th Cir. 2016), which involved post-judgment enforcement proceedings under

Illinois law. Like the firms in this case and in Smith, the law firm in Hageman first

obtained a judgment against the consumer in Missouri state court and then, several

months later, initiated garnishment proceedings in Madison County, Illinois. 

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612–13. The consumer sued the law firm, contending, among other things, that the

firm violated the FDCPA’s venue provision by bringing the garnishment action in

a judicial district “where [he] neither worked nor resided and which bore no

relationship to the underlying debt.” 

The Eighth Circuit explained that

“[t]he [FDCPA’s] venue restriction . . . applies only to legal actions ‘on a debt

against any consumer,’” which means that “the applicability of [the provision]

depends upon whether . . . the garnishment proceedings pursuant to Illinois law are

legal actions ‘against any consumer.’” 

U.S.C. § 1692i(a)).

      Following the First Circuit’s lead, the Eighth Circuit looked to the state

statutes governing Illinois’ garnishment proceedings. Like Massachusetts, Illinois

required the judgment-creditor to direct its summons against the consumer’s

employer (not the consumer) and required the employer (not the consumer) to

respond to and comply with any garnishment order. 

Based on that, the

Eighth Circuit concluded that because a post-judgment garnishment action under

Illinois law “did not amount to an action ‘against the consumer,’” the FDCPA’s

venue provision did not apply to it. 

      Only one circuit has reached a contrary result. In Fox v. Citicorp Credit

Services, Inc., 

, 1515 (9th Cir. 1994), the Ninth Circuit held that the

FDCPA’s venue provision applied to post-judgment garnishment proceedings

under Arizona law. That decision did not, however, discuss the “against any



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consumer” language in the FDCPA or whether its venue provision applied to

actions directed at third parties rather than consumers. As such, it has little

persuasive value. See 

–77; 

.

      In this case, the question is whether the FDCPA’s venue provision applies to

post-judgment garnishment proceedings under Georgia law. As the First and

Eighth Circuits have correctly explained, the FDCPA’s venue provision applies

only to legal actions “against any consumer.” 15 U.S.C. § 1692i(a); see 

; 

. That is what its words say and what its

words mean. As a result, whether the provision applies to Georgia garnishment

proceedings depends on whether those proceedings are legal actions “against any

consumer.”

      The answer to that question is not difficult. We know that a Georgia

garnishment proceeding is not an action against a consumer because Georgia law

tells us as much. The garnishment process in Georgia requires the judgment-

creditor to direct its summons to the garnishee (not the consumer), Ga. Code § 18-

4-8(a), and it requires the garnishee (not the consumer) to file an answer, Ga. Code

§ 18-4-10(a). Not only that, but the governing statute specifically provides that

“[a] garnishment proceeding is an action between the plaintiff [judgment-creditor]

and garnishee.” Ga. Code § 18-4-15(a). Although the consumer “may become a

party to the garnishment by filing a claim with the clerk of court,” 

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is fundamentally an action against the garnishee, not the consumer. For that

reason, the FDCPA’s venue provision does not apply to post-judgment

garnishment proceedings under Georgia law and Ray’s FDCPA claim therefore

fails.

         Ray contends that we should not adopt this interpretation for several reasons.

He first argues that this reading fails as a matter of statutory construction. By its

terms, the FDCPA’s venue provision applies only to a “legal action on a debt

against any consumer.” 15 U.S.C. § 1692i(a). Ray asserts that, under the last-

antecedent canon, the phrase “against any consumer” modifies only the term

“debt” and not the term “legal action.” If he is correct, the venue provision would

apply to “any legal action on a debt,” whether or not that action is against a

consumer or some other third party, provided that the debt is “against any

consumer.” Under that construction, the venue provision would apply to a Georgia

garnishment proceeding because it is a “legal action” concerning “a debt against

any consumer.”

         We reject that tortured reading of the statute. To begin with, Ray invokes

the wrong canon of construction. Because the statutory clause at issue here does

not contain any pronouns and, “[s]trictly speaking, only pronouns have

antecedents,” the last-antecedent canon does not apply. Antonin Scalia & Bryan

A. Garner, Reading Law: The Interpretation of Legal Texts 152 (2012); see also



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Lockhart v. United States, 577 U.S. ___, 

, 970 (2016) (Kagan, J.,

dissenting). The more appropriate canon is the nearest-reasonable-referent canon,

which “also applies to adjectives, adverbs, and adverbial or adjectival phrases.”

Scalia & Garner, Reading Law at 152. That canon provides that “a prepositive or

postpositive modifier normally applies only to the nearest reasonable referent.” 

venue provision contains two such modifiers: “on a debt” and

“against any consumer.” The reason the second one does not modify the first one

is because “on a debt” is itself a prepositional phrase that modifies its nearest

referent, “any legal action.” See 

Under the nearest-reasonable-referent

canon, “against any consumer” modifies “legal action,” and the FDCPA venue

provision applies only to a “legal action . . . against any consumer.”

      Ray also argues that our reading of the FDCPA fails as a matter of policy.

One purpose of the statute’s venue provision is to prevent debt collectors from

filing suits in distant and inconvenient forums, thereby depriving consumers of the

opportunity to defend themselves against debt-collection lawsuits. See 

(citing S. Rep. No. 95-382 at 5 (1977), reprinted in 1977 U.S.C.C.A.N.

1695, 1699). Ray asserts that excluding post-judgment garnishment proceedings

from the FDCPA’s coverage undermines that purpose. As the First Circuit

explained in Smith, however, the concern that a consumer will lose his opportunity

to defend himself from a debt-collection lawsuit “is not present in the case of a



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post-judgment proceeding.” 

because “[t]he original suit to collect on

the debt occurred in a forum that was convenient for [the consumer],” the

consumer “had an opportunity to defend against it,” and the consumer was not

“denied [his] day in court.” 

omitted).

      The Federal Trade Commission’s reading of the FDCPA supports this

reasoning. See 

; 

. The

Commission’s commentary provides, “If a judgment has been obtained from a

forum that satisfies the requirements of this section, a debt collector may bring suit

to enforce it in another jurisdiction.” Statements of General Policy or

Interpretation Staff Commentary on the Fair Debt Collection Practices Act, 53 Fed.

Reg. 50,097, 50,101 (Dec. 13, 1988). That interpretation makes sense, the

Commission noted, “because the consumer previously has had the opportunity to

defend the original action in a convenient forum.” 

0,109. Although that

commentary does not bind us, we accord it “considerable weight.” Hawthorne v.

Mac Adjustment, Inc., 

, 1372 n.2 (11th Cir. 1998).

      Finally, Ray argues that our reading of the FDCPA fails as a matter of

federalism. He asserts that the meaning of federal law should not hinge on state-

law definitions and that our interpretation must instead “begin and end with the

text of the federal law.” Not always, and not here. “Although federal law governs

the interpretation of a federal statute,” federal law sometimes “adopts state law as



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the federal rule of decision.” In re Prudential of Fla. Leasing, Inc., 

,

1298 (11th Cir. 2007). And in interpreting a federal statute, we may look to state

law when “a national rule is unnecessary to protect the federal interests underlying

[a statutory scheme].” United States v. Kimbell Foods, Inc., 

, 718, 

, 1453 (1979).

      As we have already explained, our interpretation of the venue provision is

consistent with the statute’s purpose. Under our reading, a debt collector must still

bring its original action against the consumer in a venue prescribed by the FDCPA.

Once it has obtained a judgment, however, the debt collector may bring an action

in another jurisdiction to enforce it. That statutory scheme affords the consumer an

opportunity to defend himself against the original action in a convenient forum.

Because a national rule in this context is unnecessary to ensure that opportunity, it

is appropriate to look to state law to determine whether a state’s post-judgment

enforcement proceedings are “against any consumer” for the purposes of the

FDCPA.

      AFFIRMED.




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