Amicus Curiae Brief — Kevin C. Rotkiske, Petitioner v. Paul Klemm, et al.
Supreme Court briefJul 18, 2019
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No. 18-328
In the Supreme Court of the United States
KEVIN C. ROTKISKE, PETITIONER
v.
PAUL KLEMM, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENTS
MARY MCLEOD
General Counsel
JOHN R. COLEMAN
Deputy General Counsel
STEVEN Y. BRESSLER
Assistant General Counsel
KRISTIN BATEMAN
Attorney
Bureau of Consumer
Financial Protection
Washington, D.C. 20552
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
MALCOLM L. STEWART
Deputy Attorney General
JONATHAN C. BOND
Assistant to the Solicitor
General
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
The Fair Debt Collection Practices Act (FDCPA),
15 U.S.C. 1692 et seq., imposes various requirements on
“a debt collector * * * in connection with the collection
of any debt.” 15 U.S.C. 1692c(a); see 15 U.S.C.
1692c-1692g. In addition to administrative enforcement
of those requirements by federal agencies, 15 U.S.C.
1692l, the FDCPA authorizes a private civil action
against a debt collector “who fails to comply with any”
of the FDCPA’s provisions. 15 U.S.C. 1692k(a). Such
an action “to enforce any liability created by” the
FDCPA “may be brought * * * within one year from
the date on which the violation occurs.” 15 U.S.C.
1692k(d). The question presented is as follows:
Whether the “discovery rule” applies to the one-year
statute of limitations under the FDCPA.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statutory provisions involved ...................................................... 1
Statement ...................................................................................... 2
Summary of argument ................................................................. 8
Argument....................................................................................... 9
I. Section 1692k(d) cannot fairly be construed to
identify the plaintiff ’s actual or constructive
discovery of a violation as the event that triggers
the FDCPA’s one-year limitations period................... 10
A. The FDCPA’s text unambiguously makes the
occurrence of an alleged violation the starting
point for the Act’s limitations period .................... 11
B. Section 1692k(d)’s clear text displaces any
default presumption in favor of a discovery
rule ............................................................................ 15
C. The FDCPA’s purposes do not justify
departing from the statutory text ......................... 18
II. Petitioner identifies no valid basis for excusing his
noncompliance with the FDCPA’s filing deadline...... 22
A. Traditional principles of equitable tolling apply
to the FDCPA, but petitioner forfeited any
equitable-tolling argument in this case................. 23
B. The special rule the Court has recognized for
fraud suits does not apply to petitioner’s
FDCPA claim .......................................................... 27
Conclusion ................................................................................... 33
Appendix — Statutory provisions ........................................... 1a
TABLE OF AUTHORITIES
Cases:
Allen ex. rel. Martin v. LaSalle Bank, N.A.,
629 F.3d 364 (3d Cir. 2011),
cert. denied, 565 U.S. 1177 (2012) ....................................... 3
(III)
IV
Cases—Continued:
Page
American Pipe & Constr. Co. v. Utah,
414 U.S. 538 (1974).............................................................. 25
Amy v. Watertown (No. 2), 130 U.S. 320 (1889) ................. 29
Astoria Fed. Sav. & Loan Ass’n v. Solimino,
501 U.S. 104 (1991).............................................................. 15
Avery v. Cleary, 132 U.S. 604 (1890) ....................... 29, 30, 31
Bailey v. Glover,
88 U.S. (21 Wall.) 342 (1875) .....................5, 9, 27, 28, 29, 30
Bay Area Laundry & Dry Cleaning Pension Trust
Fund v. Ferbar Corp. of Cal., Inc.,
522 U.S. 192 (1997).............................................................. 14
Cada v. Baxter Healthcare Corp.,
920 F.2d 446 (7th Cir. 1990),
cert. denied, 501 U.S. 1261 (1991) ..................................... 10
California Pub. Emps.’ Ret. Sys. v. ANZ Sec., Inc.,
137 S. Ct. 2042 (2017) ..................................22, 23, 24, 25, 26
Credit Suisse Sec. (USA) LLC v. Simmonds,
566 U.S. 221 (2012)........................................................ 26, 27
Department of Homeland Sec. v. MacLean,
135 S. Ct. 913 (2015) ........................................................... 13
Exploration Co. v. United States,
247 U.S. 435 (1918).................................................. 29, 30, 31
Food Mktg. Inst. v. Argus Leader Media,
139 S. Ct. 2356 (2019) ................................................... 12, 16
Gabelli v. SEC, 568 U.S. 442 (2013) ......................... 10, 14, 28
Glus v. Brooklyn E. Dist. Terminal,
359 U.S. 231 (1959).............................................................. 25
Harris Trust & Sav. Bank v. Salomon Smith
Barney Inc., 530 U.S. 238 (2000).................................... 11
Henson v. Santander Consumer USA Inc.,
137 S. Ct. 1718 (2017) ......................................................... 22
Holmberg v. Armbrecht, 327 U.S. 392 (1946) ........ 12, 24, 30
V
Cases—Continued:
Page
Irwin v. Department of Veterans Affairs,
498 U.S. 89 (1990) ............................................................ 25
Jerman v. Carlisle, McNellie, Rini, Kramer &
Ulrich, L.P.A., 559 U.S. 573 (2010) ..................................... 3
Kirkendall v. Department of the Army,
479 F.3d 830 (Fed. Cir.),
cert. denied, 552 U.S. 948 (2007) ....................................... 25
Klehr v. A. O. Smith Corp., 521 U.S. 179 (1997) ................. 26
Lampf, Pleva, Lipkind, Prupis & Petigrow v.
Gilbertson, 501 U.S. 350 (1991) ................................... 25, 31
Lozano v. Montoya Alvarez, 572 U.S. 1 (2014) ...... 23, 25, 31
Mangum v. Action Collection Servs.,
575 F.3d 935 (9th Cir. 2009) ............................................... 21
Mathews v. Kidder, Peabody & Co.,
260 F.3d 239 (3d Cir. 2001) ............................................... 6
Menominee Indian Tribe of Wis. v. United States,
136 S. Ct. 750 (2016) ........................................................... 26
Merck & Co. v. Reynolds, 559 U.S. 633 (2010)........ 10, 13, 31
Mertens v. Hewitt Assocs., 508 U.S. 248 (1993) ................. 19
National R.R. Passenger Corp. v. Morgan,
536 U.S. 101 (2002).............................................................. 12
Nutraceutical Corp. v. Lambert, 139 S. Ct. 710 (2019) ..... 24
OBB Personenverkehr AG v. Sachs,
136 S. Ct. 390 (2015) ........................................................... 27
Obduskey v. McCarthy & Holthus LLP,
139 S. Ct. 1029 (2019) ......................................................... 22
Petrella v. Metro-Goldwyn-Mayer, Inc.,
572 U.S. 663 (2014)........................................................ 14, 25
Ramírez-Carlo v. United States,
496 F.3d 41 (1st Cir. 2007) ................................................. 25
Rodriguez v. United States, 480 U.S. 522 (1987)................ 22
Rosenthal v. Walker, 111 U.S. 185 (1884) ..................... 29, 30
VI
Cases—Continued:
Page
Ross v. Blake, 136 S. Ct. 1850 (2016) ................................... 11
Rotella v. Wood, 528 U.S. 549 (2000) ................. 20, 21, 22, 25
SEC v. Capital Gains Research Bureau, Inc.,
375 U.S. 180 (1963).............................................................. 31
Sherwood v. Sutton,
21 F. Cas. 1303 (C.C.D.N.H. 1828).................................... 28
TRW Inc. v. Andrews, 534 U.S. 19 (2001) ........... 7, 16, 17, 18
Traer v. Clews, 115 U.S. 528 (1885) ............................... 29, 30
United States v. American Trucking Ass’ns,
310 U.S. 534 (1940).............................................................. 18
United States v. Wells, 519 U.S. 482 (1997) ........................ 15
Urie v. Thompson, 337 U.S. 163 (1949) ............. 11, 15, 16, 17
Wahl v. Midland Credit Mgmt., Inc.,
556 F.3d 643 (7th Cir. 2009) ................................................. 3
William A. Graham Co. v. Haughey,
646 F.3d 138 (3d Cir.),
cert. denied, 565 U.S. 963 (2011) ................................. 10, 23
Young v. United States,
535 U.S. 43 (2002) .................................. 14, 16, 21, 24, 25, 31
Statutes:
Fair Credit Reporting Act, 15 U.S.C. 1681 et seq. ............. 17
15 U.S.C. 1681p (1976) .................................................... 13
15 U.S.C. 1681p (2000) .................................................... 17
Fair Debt Collection Practices Act,
15 U.S.C. 1692 et seq. ............................................................ 1
15 U.S.C. 1692(e) ................................................... 2, 19, 1a
15 U.S.C. 1692b................................................................ 21
15 U.S.C. 1692c-1692i ........................................................ 2
15 U.S.C. 1692c(a) ............................................................. 2
15 U.S.C. 1692c(a)(1) ....................................................... 19
15 U.S.C. 1692c(a)(2) ....................................................... 19
VII
Statutes—Continued:
Page
15 U.S.C. 1692c(a)(3) ....................................................... 20
15 U.S.C. 1692c(b) ....................................................... 2, 21
15 U.S.C. 1692c(c) ............................................................ 19
15 U.S.C. 1692d............................................................ 2, 19
15 U.S.C. 1692d(3) ........................................................... 21
15 U.S.C. 1692d(4) ........................................................... 21
15 U.S.C. 1692e ............................................................ 2, 2a
15 U.S.C. 1692e(2) ..................................................... 32, 2a
15 U.S.C. 1692e(2)(A) .................................................. 4, 2a
15 U.S.C. 1692e(2)(B) .................................................. 4, 2a
15 U.S.C. 1692e(5) ................................................. 4, 32, 2a
15 U.S.C. 1692f .................................................................. 2
15 U.S.C. 1692f(6)(A) ...................................................... 20
15 U.S.C. 1692f(6)(C) ...................................................... 20
15 U.S.C. 1692f(7) ............................................................ 19
15 U.S.C. 1692f(8) ............................................................ 19
15 U.S.C. 1692g(a) ....................................................... 2, 20
15 U.S.C. 1692g(b) ............................................................. 2
15 U.S.C. 1692k(a) ....................................................... 2, 3a
15 U.S.C. 1692k(a)(2) .................................................. 3, 3a
15 U.S.C. 1692k(b) ....................................................... 3, 4a
15 U.S.C. 1692k(c) ....................................................... 3, 4a
15 U.S.C. 1692k(d) .............................................passim, 4a
15 U.S.C. 1692k(e) ....................................................... 3, 5a
15 U.S.C. 1692l(a) .............................................................. 1
15 U.S.C. 1692l(a)-(c) ........................................................ 2
15 U.S.C. 1692l(b) .............................................................. 1
Federal Employers’ Liability Act,
45 U.S.C. 51 et seq............................................................... 16
45 U.S.C. 56 ...................................................................... 16
Federal Farm Loan Act, ch. 245, 39 Stat. 360 .................... 24
VIII
Statutes—Continued:
Page
5 U.S.C. 552a(g)(5) (1976) ............................................... 13, 14
7 U.S.C. 210(a) (1976) ............................................................ 14
7 U.S.C. 499f(a) (1976) ........................................................... 14
10 U.S.C. 2733(b)(1) (1976) ................................................... 14
15 U.S.C. 77m (1976) ............................................................. 13
15 U.S.C. 77www(a) (1976) ................................................... 13
15 U.S.C. 78i(e) (1976) ........................................................... 13
15 U.S.C. 78r(c) (1976) .......................................................... 13
15 U.S.C. 1711 (1976)............................................................. 13
19 U.S.C. 1621 (1976)............................................................. 13
22 U.S.C. 2356(a) (1976) ........................................................ 14
26 U.S.C. 7217(c) (1976) .................................................. 13, 14
28 U.S.C. 1658(b)(1) ......................................................... 11, 13
28 U.S.C. 2401 (1976)............................................................. 14
29 U.S.C. 1113 (1976)............................................................. 13
31 U.S.C. 241(c)(1) (1976) ...................................................... 14
32 U.S.C. 715(b)(1) (1976) ..................................................... 14
38 U.S.C. 236 (1976)............................................................... 14
45 U.S.C. 153(r) (1976) .......................................................... 14
47 U.S.C. 415(a)-(c) (1976) .................................................... 14
49 U.S.C. 16(3)(a)-(c) (1976) .................................................. 14
49 U.S.C. 908(f )(1)(A)-(C) (1976).......................................... 14
Miscellaneous:
J. K. Angell, A Treatise on the Limitations of
Actions at Law and Suits in Equity and
Admiralty (2d ed. 1846) ..................................................... 28
Black’s Law Dictionary:
(Rev. 4th ed. 1968) ........................................................... 12
(10th ed. 2014) .................................................................. 12
IX
Miscellaneous—Continued:
Page
Calvin W. Corman, Limitation of Actions (1991):
Vol. 1 ................................................................................. 15
Vol. 2 ................................................................................. 26
John P. Dawson, Undiscovered Fraud and Statutes
of Limitation, 31 Mich. L. Rev. 591 (1933) ...................... 28
2 Joseph Story, Commentaries on Equity Jurisprudence as Administered in England and America
(Rev. 2d ed. 1839) ................................................................ 28
Webster’s New International Dictionary
(2d ed. 1949)......................................................................... 12
Whether Fraud Is a Sufficient Answer, in an Action
at Law, to a Plea of the Statute of Limitations,
1 U.S. L. Intelligencer & Rev. 139 (1829) ........................ 28
H. G. Wood, A Treatise on the Limitation of Actions
at Law and in Equity (Dewitt C. Moore ed.,
4th ed. 1916):
Vol. 1 ........................................................................... 14, 28
Vol. 2 ................................................................................. 15
In the Supreme Court of the United States
No. 18-328
KEVIN C. ROTKISKE, PETITIONER
v.
PAUL KLEMM, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENTS
INTEREST OF THE UNITED STATES
This case concerns the limitations period that applies
to private suits under the Fair Debt Collection Practices Act (FDCPA or Act), 15 U.S.C. 1692 et seq. The
Bureau of Consumer Financial Protection (Bureau), the
Federal Trade Commission (FTC), and other federal
agencies share responsibility for enforcement of the
FDCPA. 15 U.S.C. 1692l(a) and (b). Private actions
alleging violations of the FDCPA supplement those
enforcement efforts. The United States therefore has a
substantial interest in the rules governing such private
enforcement suits.
STATUTORY PROVISIONS INVOLVED
Pertinent statutory provisions are reprinted in the
appendix to this brief. App., infra, 1a-5a.
(1)
2
STATEMENT
1. Congress enacted the FDCPA in 1977 to “eliminate abusive debt collection practices by debt collectors” and to “insure that those debt collectors who
refrain from using abusive debt collection practices are
not competitively disadvantaged.” 15 U.S.C. 1692(e).
The FDCPA pursues those objectives primarily by regulating the activities of “debt collector[s]” “in connection with the collection of [a] debt.” 15 U.S.C. 1692c(a);
see 15 U.S.C. 1692c-1692i. Among other things, the Act
restricts debt collectors’ communications with consumers and third parties “in connection with the collection
of any debt,” 15 U.S.C. 1692c(a) and (b); prohibits debt
collectors from “harass[ing], oppress[ing], or abus[ing]
any person,” or from making “false, deceptive, or misleading representation[s],” “in connection with the collection of any debt,” 15 U.S.C. 1692d, 1692e; and bans
debt collectors’ use of “unfair or unconscionable means
to collect or attempt to collect any debt,” 15 U.S.C.
1692f. The FDCPA also requires a debt collector seeking to collect a debt promptly to provide the consumer
certain information and, if the consumer “dispute[s]”
the debt, to “cease collection” until the debt collector
provides verification. 15 U.S.C. 1692g(a) and (b).
The Bureau, the FTC, and other federal agencies
enforce the FDCPA. 15 U.S.C. 1692l(a)-(c). The FDCPA
also authorizes private suits. “[A]ny debt collector who
fails to comply with [the FDCPA] with respect to any person is liable to such person,” 15 U.S.C. 1692k(a), and the
affected person may file suit in federal or state court to
enforce such liability, 15 U.S.C. 1692k(d).
The FDCPA’s private right of action is part of a “calibrated scheme” designed to incentivize compliance
with the Act by debt collectors and “self-enforcement”
3
by consumers. Jerman v. Carlisle, McNellie, Rini,
Kramer & Ulrich, L.P.A., 559 U.S. 573, 603 (2010). The
FDCPA largely “is a strict liability statute” in the sense
that, for most of its provisions, “a collector ‘need not be
deliberate, reckless, or even negligent to trigger liability.’ ” Wahl v. Midland Credit Mgmt., Inc., 556 F.3d
643, 646 (7th Cir. 2009) (citation omitted); accord, e.g.,
Allen ex. rel. Martin v. LaSalle Bank, N.A., 629 F.3d
364, 368 n.7 (3d Cir. 2011), cert. denied, 565 U.S. 1177
(2012). Whether a violation was “intentional” is a factor
that a court may consider “[i]n determining the amount
of liability” for statutory damages, 15 U.S.C. 1692k(b),
but generally is not an element of a plaintiff ’s claim.
The FDCPA limits defendants’ liability in certain
respects. A debt collector may not be held liable for “any
act done or omitted in good faith in conformity with any
advisory opinion of the Bureau,” 15 U.S.C. 1692k(e), or for
an unintentional violation that “resulted from a bona fide
error” if the debtor maintained “procedures reasonably
adapted to avoid any such error.” 15 U.S.C. 1692k(c). The
FDCPA authorizes awards of statutory damages but caps
such damages in both individual and class actions. See
15 U.S.C. 1692k(a)(2). Finally, and most relevant here,
Congress placed a time limit on private actions: “An
action to enforce any liability created by th[e] [FDCPA]
may be brought * * * within one year from the date on
which the violation occurs.” 15 U.S.C. 1692k(d).
2. This case arises from the dismissal of petitioner’s
complaint. Pet. App. 3. Petitioner’s operative, amended
complaint alleges the following facts, which the district
court assumed to be true. Id. at 16 n.1.
In 2005, petitioner fell into arrears on a credit-card
debt. 2 C.A. App. 8a. His credit-card company referred
4
the debt to respondents for collection. Ibid. 1 In March
2008, respondents sued petitioner, seeking to collect
approximately $1500. Ibid. Respondents attempted to
serve petitioner at an address where he no longer lived.
Ibid. A person whose race and physical description did
not match petitioner accepted service. Ibid. Respondents subsequently withdrew the complaint. Ibid.
In January 2009, respondents refiled the debt-collection
suit against petitioner and attempted to serve petitioner at
the same address. 2 C.A. App. 8a. Another person petitioner did not know accepted service on petitioner’s behalf.
Ibid. When petitioner did not respond to the suit, the
court entered a default judgment against him. Ibid.
3. a. In June 2015, petitioner commenced this action
against respondents. Pet. App. 3. His operative, amended
complaint asserted a single claim under the FDCPA.
2 C.A. App. 9a. Citing 15 U.S.C. 1692e(2)(B) and (5), petitioner alleged that respondents had commenced the 2009
debt-collection lawsuit after the applicable state-law limitations period had expired, and that respondents had
thereby “violated the FDCPA by contacting [petitioner]
without lawful ability to collect.” 2 C.A. App. 9a. Section
1692e(2)(B) prohibits a “false representation of * * * any
services rendered or compensation which may be lawfully
received by any debt collector for the collection of a debt.”
15 U.S.C. 1692e(2)(B). 2 Section 1692e(5) prohibits a
“threat to take any action that cannot legally be taken or
that is not intended to be taken.” 15 U.S.C. 1692e(5).
1
Petitioner’s complaint “d[id] not distinguish between” the
respondents, and the court of appeals referred to respondents collectively. Pet. App. 3 n.1. This brief does so as well.
2
Petitioner may have intended to invoke Section 1692e(2)(A),
which prohibits a “false representation of * * * the character,
amount, or legal status of any debt.” 15 U.S.C. 1692e(2)(A).
5
Petitioner’s complaint alleged that he “was completely
unaware of all actions against him regarding the credit
card debt” until September 2014, when he was denied a
mortgage because his credit report referred to the
default judgment against him. 2 C.A. App. 8a. Petitioner
asserted that, “[b]ecause the nature of the service of the
collection lawsuit purposefully ensured that [petitioner]
could never properly be served at an address at which he
no longer live[d], [respondents’] acts were ‘of such character as to conceal themselves to warrant equitable tolling.’ ” Id. at 8a-9a (quoting Bailey v. Glover, 88 U.S.
(21 Wall.) 342, 349-350 (1875)) (brackets omitted).
Respondents moved to dismiss petitioner’s suit as
time-barred under 15 U.S.C. 1692k(d). Pet. App. 3. In
his response, petitioner stated that he “withdr[ew] [his]
statute of limitations argument and corresponding allegations” pending discovery. D. Ct. Doc. 17, at 4 (Nov. 10,
2015). He asserted that “[t]he gravamen of [his] complaint [wa]s that [respondents] falsely, unfairly, and
deceptively took [their] collection judgment in 2009
against [petitioner] at an address [respondents] knew
[petitioner] did not occupy.” Ibid.; see Pet. App. 17 n.2.
Petitioner did not further amend his complaint. In contending that his suit should not be dismissed as untimely,
he invoked both the “[d]iscovery [r]ule” and principles of
“ ‘equitable tolling.’ ” Id. at 4-5 (citation omitted).
b. The district court dismissed petitioner’s suit as
untimely. Pet. App. 15-29. The court rejected petitioner’s contention “that the discovery rule, which delays
the beginning of a limitations period until the plaintiff
knew of or should have known of his injury, applies to
FDCPA claims.” Id. at 21; see id. at 22-26. The court
held that the “language of the statute” establishes that
the limitations period begins to run “on the date of the
6
defendant’s last opportunity to comply with the statute,
rather than the date on which the plaintiff discovers or
should have discovered the violation.” Id. at 22, 25-26.
In this case, the court held, the “alleged violation of the
FDCPA occurred ‘on or about January 2009’ ” when the
debt-collection suit was refiled, not when petitioner discovered that suit. Id. at 26 (brackets omitted).
The district court also rejected petitioner’s “alternative” contention that “the doctrine of equitable tolling”
applied because respondents had engaged in “fraudulent concealment.” Pet. App. 21-22, 27; see id. at 26-29.
The court held that, to invoke equitable tolling, a plaintiff
must “prove ‘(1) active misleading by the defendant,
(2) which prevents the plaintiff from recognizing the
validity of her claim within the limitations period,
(3) where the plaintiff ’s ignorance is not attributable to
her lack of reasonable due diligence in attempting to uncover the relevant facts.’ ” Id. at 27 (quoting Mathews v.
Kidder, Peabody & Co., 260 F.3d 239, 256 (3d Cir. 2001))
(internal quotation marks omitted). The court found that
petitioner had made “no allegations of active misleading,” and that he was “was not misled by any conduct
committed by any [respondent].” Id. at 28-29.
4. Petitioner appealed. Pet. App. 4. Following oral argument, the court of appeals sua sponte ordered rehearing en banc, ibid., and unanimously affirmed, id. at 1-14.
On appeal, petitioner contended that the “discovery
rule” delayed the start of the one-year limitations
period. Pet. App. 7, 13; see Pet. C.A. Br. 6, 13-16; Pet.
C.A. Supp. Br. 1-19. The court of appeals rejected that
argument. Pet. App. 7-13. It agreed with the district
court that Section 1692k(d) “sp[eaks] clearly” and precludes “imply[ing] a discovery rule.” Id. at 5.
7
The court of appeals observed that a legislature
enacting a limitations period typically chooses between
“two basic models”: “a statute can run from ‘the date
the injury actually occurred, an approach known as the
‘occurrence rule’ ”; or it “may delay the start of the limitations period until ‘the date the aggrieved party knew
or should have known of the injury, that is, the “discovery rule.” ’ ” Pet. App. 6 (citations omitted). The court
held that “the occurrence rule plainly applies” under
Section 1692k(d) because Congress “specifie[d] that the
‘date on which the violation occurs’ starts the limitations
period.” Ibid. While acknowledging that the FDCPA
“does not state in haec verba that the discovery rule shall
not apply,” the court explained that “Congress’s explicit
choice of an occurrence rule” in the FDCPA “implicitly
excludes a discovery rule.” Id. at 7-8 (quoting TRW Inc.
v. Andrews, 534 U.S. 19, 28 (2001)). The court reserved
judgment on whether limitations periods defined by different, “less-determinate language”—for example, limitations periods that start when a claim “ ‘accrues’ ” or
“ ‘arises’ ”—would be understood to incorporate a discovery rule. Id. at 7 (brackets and citations omitted).
The court of appeals also rejected petitioner’s contention that, because FDCPA plaintiffs sometimes allege
“fraud, deception, or self-concealing behavior,” a discovery rule should be inferred to avoid “thwart[ing]” the
Act’s purpose. Pet. App. 8. The court explained that,
“[a]s the language of the FDCPA makes clear, many
violations will be apparent to consumers the moment
they occur” and are not “inherently fraudulent, deceptive, or self-concealing.” Id. at 9. The court further
observed that, “to the extent that FDCPA claims do deal
with ‘false, deceptive, or misleading representations,’
8
* * * equitable tolling remains available in appropriate
cases.” Id. at 9-10 (brackets and citation omitted).
The court of appeals “d[id] not reach the question”
whether equitable tolling would apply in these circumstances, finding that petitioner had “failed to raise [that
argument] on appeal.” Pet. App. 13. The court “emphasiz[ed] that [its] holding * * * should not be read to foreclose the possibility that equitable tolling might apply to
FDCPA violations that involve fraudulent, misleading, or
self-concealing conduct.” Ibid. The court noted that, “[i]f
[petitioner] had preserved reliance on equitable tolling on
appeal,” four judges “would have remanded to allow the
District Court” to reconsider that argument. Id. at 14 n.5.
SUMMARY OF ARGUMENT
I. The FDCPA’s one-year limitations period cannot
fairly be construed as beginning to run only when a plaintiff discovers or should discover the alleged violation. The
limitations provision states that “[a]n action to enforce
any liability created by [the FDCPA] may be brought
* * * within one year from the date on which the violation
occurs.” 15 U.S.C. 1692k(d). That language unambiguously identifies the date of the violation, not the date of
actual or constructive discovery, as the date when the oneyear period for filing suit commences.
Contrary to petitioner’s contention, this Court has
never adopted a general presumption that federal limitations periods should be read to incorporate a discovery
rule. The decisions on which petitioner relies are better
understood as interpreting particular limitations periods
or applying equitable principles to excuse untimely filings. And even if such a presumption existed, it would
be overcome by the FDCPA’s plain text, which unambiguously identifies the date a violation occurs as the
event that triggers the one-year limitations period.
9
II. Equitable principles sometimes may warrant
excusing a plaintiff ’s failure to comply with a limitations
period, or precluding a defendant from asserting untimeliness as a defense. At least in some circumstances,
those principles apply to the FDCPA. The most familiar
principle, equitable tolling, might apply if (as petitioner
asserts) respondents concealed their debt-collection suit
from him. But the court of appeals found that petitioner
had forfeited any equitable-tolling argument, and he
does not challenge that conclusion. This Court has also
recognized what is arguably a distinct, per se rule for
fraud cases, under which a limitations period does not
operate until the plaintiff discovers or should discover
the fraud. Bailey v. Glover, 88 U.S. (21 Wall.) 342,
348-350 (1875). But petitioner’s FDCPA claim is not an
action for fraud as traditionally understood.
ARGUMENT
A private suit under the FDCPA “may be brought
* * * within one year from the date on which the violation
occurs.” 15 U.S.C. 1692k(d). Petitioner’s complaint
alleges that respondents violated the FDCPA in 2009,
2 C.A. App. 8a-9a, but he did not bring suit until 2015, Pet.
App. 3. Petitioner contends (Br. 13) that his suit should
be treated as timely, despite that six-year delay, based
on “the ‘discovery rule,’ ” which he describes as “an
equitable doctrine, which either delays the commencement of, or suspends the running of, the applicable statute of limitations.” See id. at 14-41. Courts do not use
the term “discovery rule” consistently, and petitioner’s
argument might implicate at least two distinct concepts.
To the extent petitioner urges this Court to interpret
Section 1692k(d) as delaying the start of the limitations
period until he discovered the alleged violation, that
argument is foreclosed by the statutory text. To the
10
extent petitioner contends that equitable or similar
principles should excuse his noncompliance with the
limitations period in these circumstances, that argument also fails, but for different, case-specific reasons.
I. SECTION 1692k(d) CANNOT FAIRLY BE CONSTRUED
TO IDENTIFY THE PLAINTIFF’S ACTUAL OR
CONSTRUCTIVE DISCOVERY OF A VIOLATION AS
THE EVENT THAT TRIGGERS THE FDCPA’S ONEYEAR LIMITATIONS PERIOD
Petitioner’s argument (Br. 13) that “the discovery
rule applies” to private FDCPA actions might be understood as contending that Section 1692k(d) should be
interpreted to give the plaintiff one year to file suit after
he discovers or reasonably should have discovered the
alleged violation. Although courts do not use the term
“discovery rule” consistently, see William A. Graham
Co. v. Haughey, 646 F.3d 138, 149-150 (3d Cir.) (collecting cases), cert. denied, 565 U.S. 963 (2011), this Court
and others have often used the term to refer to “a doctrine that delays accrual of a cause of action”—and with
it, the start of the limitations period—“until the plaintiff
has ‘discovered’ it.” Merck & Co. v. Reynolds, 559 U.S.
633, 644 (2010); see, e.g., Gabelli v. SEC, 568 U.S. 442,
449 (2013); Cada v. Baxter Healthcare Corp., 920 F.2d
446, 450 (7th Cir. 1990), cert. denied, 501 U.S. 1261
(1991). Where the doctrine applies, an action is deemed
to be timely if the plaintiff files suit within the prescribed period following discovery of the cause of action.
Whether a particular limitations provision incorporates that approach is a matter of statutory interpretation. Some statutes expressly make the “discovery” of a
claim, injury, or other specified facts the event that triggers the limitations period. See, e.g., Merck, 559 U.S. at
644-653 (construing limitations period that ran from
11
“the discovery of the facts constituting the violation” of
the securities laws, 28 U.S.C. 1658(b)(1)). Or a court
may conclude that, although a particular time bar’s text
is ambiguous, the statutory context indicates that Congress intended a discovery rule to apply. See, e.g., Urie
v. Thompson, 337 U.S. 163, 168-171 (1949). In either
circumstance, a court may conclude as a matter of statutory interpretation that a particular limitations period
does not start running until a plaintiff does or should
discover specified facts.
Section 1692k(d) cannot plausibly be construed in
that manner because it identifies “the date on which the
violation occurs” as the date when the one-year period
for filing suit begins. 15 U.S.C. 1692k(d). That language forecloses any interpretation that would make
(actual or constructive) discovery of the violation the
triggering event. And a principle delaying the “accrual”
of a plaintiff ’s cause of action would not benefit petitioner because the commencement of the FDCPA’s limitations period does not turn on when a claim accrues.
Contrary to petitioner’s contention, neither this Court’s
precedent nor the FDCPA’s purposes provide a valid
basis for reading in a discovery rule.
A. The FDCPA’s Text Unambiguously Makes The
Occurrence Of An Alleged Violation The Starting Point
For The Act’s Limitations Period
“Statutory interpretation * * * begins with the text.”
Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). “And where
the statutory language provides a clear answer” to a particular question, the inquiry “ends there as well.” Harris
Trust & Sav. Bank v. Salomon Smith Barney Inc.,
530 U.S. 238, 254 (2000) (citation omitted). That is true of
limitations periods no less than other statutes. “If Congress explicitly puts a limit upon the time for enforcing a
12
right which it created, there is an end of the matter.”
Holmberg v. Armbrecht, 327 U.S. 392, 395 (1946). The
ordinary meaning of the FDCPA’s text is dispositive here.
1. Section 1692k(d) states that a private suit “may be
brought * * * within one year from the date on which
the violation occurs.” 15 U.S.C. 1692k(d). Because the
Act does not define “violation” or “occurs,” courts must
“ask what th[ose] term[s’] ‘ordinary, contemporary, common meaning’ was when Congress enacted” the FDCPA
in 1977. Food Mktg. Inst. v. Argus Leader Media,
139 S. Ct. 2356, 2362 (2019) (citation omitted). In 1977, as
today, “violation” meant the “[a]ct or instance of violating,
or state of being violated”—specifically, “[i]nfringement;
transgression, nonobservance; as, the violation of law,
covenants, promises, etc.” Webster’s New International
Dictionary 2846 (2d ed. 1949) (Webster’s Second); accord
Black’s Law Dictionary 1800 (10th ed. 2014) (“An
infraction or breach of the law; a transgression. * * *
The act of breaking or dishonoring the law; the contravention of a right or duty”); Black’s Law Dictionary
1741 (Rev. 4th ed. 1968) (Black’s Fourth) (“Injury;
infringement; breach of right, duty or law”). And, as
this Court held in construing a limitations period enacted
not long before the FDCPA, an unlawful act “ ‘occur[s]’
on the day that it ‘happen[s].’ ” National R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 110 (2002); see id. at
109-110 & n.5 (practice occurred when it “took place or
happened”); accord Black’s Fourth 1231; Webster’s
Second 1684.
Taken together, the words “violation” and “occurs”
establish that Section 1692k(d)’s one-year period for filing suit begins to run on the date of the act or omission
that is alleged to have violated the FDCPA. The text
cannot plausibly be construed to identify the plaintiff ’s
13
actual or constructive discovery of the violation as the
event that triggers the FDCPA’s limitations period. In
ordinary parlance, no reasonable speaker would use the
phrase “the date on which the violation occurs” to refer
to the date when a person harmed by a violation learned
or should have learned of it.
2. The “violation occurs” language in Section
1692k(d) is especially probative in contrast to language
Congress had previously used in other limitations provisions. A number of federal statutes that were in force
when Congress enacted the FDCPA stated that a limitations period would begin—either in general or in
specified circumstances, and sometimes paired with an
outer repose period—upon the “discovery” of a violation, injury, or other event. 15 U.S.C. 77m (1976); see,
e.g., 5 U.S.C. 552a(g)(5) (1976); 15 U.S.C. 77www(a),
78i(e), 78r(c), 1681p, 1711 (1976); 19 U.S.C. 1621 (1976);
26 U.S.C. 7217(c) (1976); 29 U.S.C. 1113 (1976); cf. Merck,
559 U.S. at 644-653 (construing 28 U.S.C. 1658(b)(1)). If
Congress had intended to incorporate a similar “discovery” trigger in the FDCPA, it “knew how” to do so.
Department of Homeland Sec. v. MacLean, 135 S. Ct.
913, 921 (2015) (other, preexisting statutes showed that,
“[h]ad Congress wanted to draw [a particular] distinction, there were far easier and clearer ways to do so”).
Congress also eschewed other commonplace formulations that would have delayed the start of the
FDCPA’s limitations period until a plaintiff has a complete cause of action, and that would at least have preserved the possibility of a discovery rule. In 1977 as
today, many federal statutes contained limitations periods that ran from the date when a plaintiff ’s cause of
action “arises” or “accrues,” sometimes in combination
with a period running from the date of discovery. E.g.,
14
7 U.S.C. 210(a), 499f(a) (1976) (“accrues”); 10 U.S.C.
2733(b)(1) (1976) (same); 28 U.S.C. 2401 (1976) (same);
31 U.S.C. 241(c)(1) (1976) (same); 32 U.S.C. 715(b)(1)
(1976) (same); 38 U.S.C. 236 (1976) (same); 45 U.S.C.
153(r) (1976) (same); 47 U.S.C. 415(a)-(c) (1976) (same);
49 U.S.C. 16(3)(a)-(c), 908(f )(1)(A)-(C) (1976) (same);
5 U.S.C. 552a(g)(5) (1976) (“arises”); 22 U.S.C. 2356(a)
(1976) (same); 26 U.S.C. 7217(c) (1976) (same). “[T]he
‘standard rule’ ”—which has “governed since the 1830’s”
—“is that a claim accrues ‘when the plaintiff has a complete and present cause of action.’ ” Gabelli, 568 U.S. at
448 (citation omitted); see Petrella v. Metro-GoldwynMayer, Inc., 572 U.S. 663, 670 (2014). A limitations
period that runs “from ‘the date on which the cause of
action arose’ ” similarly “incorporates th[at] standard
rule.” Bay Area Laundry & Dry Cleaning Pension
Trust Fund v. Ferbar Corp. of Cal., Inc., 522 U.S. 192,
201 (1997) (citation omitted).
A limitations period that runs from the date a claim
“accrues” or “arises” would not necessarily incorporate
a discovery rule, but those formulations would at least
leave the door ajar. Unless the statute specifies otherwise, a cause of action is “ ‘complete and present’ for limitations purposes” when “the plaintiff can file suit and
obtain relief,” Bay Area Laundry, 522 U.S. at 201—
that is, when the plaintiff “has the right to apply to the
court for relief,” 1 H. G. Wood, A Treatise on the Limitation of Actions at Law and in Equity § 122a, at 684
(Dewitt C. Moore ed., 4th ed. 1916) (Wood). And a cause
of action may be complete in that sense even if the plaintiff is unaware of it. See Young v. United States,
535 U.S. 43, 49 (2002) (“There is nothing unusual about
a statute of limitations that commences when the claimant has a complete and present cause of action, whether
15
or not he is aware of it.” (citing 1 Calvin W. Corman,
Limitation of Actions § 6.1, at 370, 378 (1991) (Corman), and 2 Wood § 276c(1), at 1411)). But the context
of a particular limitations period might show that Congress did not intend a claim to “accrue” until the plaintiff
discovered his injury or other facts. See, e.g., Urie,
337 U.S. at 168-171 (concluding, in light of the statutory
purpose, that a claim based on a latent disease “accrued”
only when the plaintiff discovered the disease).
In Section 1692k(d), however, Congress rejected
those familiar formulations. Instead, it made the
“occur[rence]” of an FDCPA “violation”—that is, the
defendant’s allegedly unlawful conduct—the event that
triggers the one-year period. 15 U.S.C. 1692k(d). In
doing so, Congress foreclosed any interpretation of that
time period as beginning only when a plaintiff discovers
or should discover the alleged violation.
B. Section 1692k(d)’s Clear Text Displaces Any Default
Presumption In Favor Of A Discovery Rule
Petitioner does not contend that the FDCPA’s text
affirmatively suggests that the one-year period for filing
suit begins only when a plaintiff does or should discover
the alleged violation. Instead, he principally argues
(Br. 16-28) that, by 1977, this Court’s precedent had
established a default presumption that federal statutes of
limitations incorporate a discovery rule, and that the
FDCPA’s limitations period should be construed in accordance with that presumption. Those arguments lack merit.
1. Federal statutes ordinarily should be read
“against a background of common-law adjudicatory principles,” Astoria Fed. Sav. & Loan Ass’n v. Solimino,
501 U.S. 104, 108 (1991), and “Congress expects its statutes to be read in conformity with this Court’s precedents,” United States v. Wells, 519 U.S. 482, 495 (1997).
16
But petitioner has identified no decision of this Court either before 1977, cf. Food Mktg. Inst., 139 S. Ct. at
2365-2366, or since then that has adopted a presumption
that federal limitations periods incorporate a delayedaccrual discovery rule. In 2001, the Court observed that,
although lower courts had adopted that approach, this
Court “ha[d] not adopted that position as [its] own.”
TRW Inc. v. Andrews, 534 U.S. 19, 27 (2001). The following year, the Court noted that it is unremarkable for a
plaintiff ’s claim to accrue, and the limitations period to
start running, “whether or not [the plaintiff ] is aware of
[the claim].” Young, 535 U.S. at 49.
Petitioner points (Br. 25) to Urie, but in that case the
Court simply interpreted the particular limitations
period at issue—which governed claims brought by
injured employees under the Federal Employers’ Liability Act (FELA), 45 U.S.C. 51 et seq.—as running from
the date a plaintiff discovered a latent injury. See Urie,
337 U.S. at 168-174. The plaintiff sued his employer
under FELA after contracting silicosis from inhaling silica dust at work. Id. at 165-166. The employer contended that the claim was barred by FELA’s three-year
limitations period, which ran from the date “the cause
of action accrued,” 45 U.S.C. 56. Urie, 337 U.S. at
168-169. The employer argued that the plaintiff had
first been exposed to silica dust many years earlier and
must have contracted his disease outside the limitations
period, or alternatively that every inhalation of silica
dust gave rise to a distinct injury and only injuries
caused within the three-year period preceding the suit’s
commencement were still actionable. Id. at 169.
The Court rejected those “constructions of the statute.”
Urie, 337 U.S. at 169. It concluded that those interpretations contradicted the “humane legislative plan,” and that
17
“such mechanical analysis of the ‘accrual’ of [the plaintiff ’s]
injury * * * can only serve to thwart the congressional
purpose.” Id. at 169-170. Instead, the Court held that “the
afflicted employee can be held to be ‘injured’ only when the
accumulated effects of the deleterious substance manifest
themselves.” Id. at 170 (citation omitted).
Petitioner cites (Br. 21-27) other decisions holding
various limitations periods inapplicable in particular
circumstances, but those decisions do not reflect any
presumption that is relevant here. As discussed below,
some of those decisions applied traditional principles of
equitable tolling to excuse untimely filings; but that
doctrine is not at issue here because petitioner forfeited
any equitable-tolling argument. See pp. 23-27, infra.
Others applied what is arguably a distinct, per se rule
that the Court has long recognized in the specific context of fraud claims; but petitioner’s suit is not an action
for fraud. See pp. 27-32, infra.
2. In any event, even if some or all federal statutes of
limitations were presumed to delay the start of the limitations period until a claim or injury is discovered, Congress
clearly displaced any such presumption in the FDCPA.
See TRW, 534 U.S. at 28-31. In TRW, the Court held that,
even assuming a “presumption exists” that “all federal
statutes of limitations, regardless of context, incorporate
a general discovery rule,” Congress had overcome that
presumption in the Fair Credit Reporting Act (FCRA),
15 U.S.C. 1681 et seq. 534 U.S. at 27. The Court observed
that Congress had included in the FCRA both a general
limitations period running “from the date on which the
liability arises,” and an exception for certain cases of
material, willful misrepresentation in which the period
ran from the date of “discovery by the individual of the
misrepresentation.” Id. at 28 (quoting 15 U.S.C. 1681p
18
(2000)). The Court held that “[t]he most natural reading
of ” the provision was that “Congress implicitly excluded a
general discovery rule by explicitly including a more limited one.” Ibid. A contrary approach, the Court observed,
would render the FCRA’s limited-purpose discovery rule
“entirely superfluous in all but the most unusual circumstances.” Id. at 29; see id. at 29-31.
The FDCPA’s text unmistakably supplants any presumption in favor of a discovery rule. Construing Section 1692k(d) to delay the onset of the one-year bar until
a plaintiff learns of a violation would not merely render
a portion of the statutory language superfluous, as in
TRW; it would flatly contravene the text’s clear command that the occurrence of a violation starts the clock.
As in TRW, 534 U.S. at 27, the Court accordingly need
not determine whether a general presumption in favor
of a discovery rule exists because the FDCPA’s plain
language would overcome any such presumption.
C. The FDCPA’s Purposes Do Not Justify Departing From
The Statutory Text
Petitioner contends (Br. 29-39) that the FDCPA’s
purposes “suggest” that Congress intended to incorporate a discovery rule, because some violations of the Act
will not be apparent to a plaintiff within the limitations
period, and Congress could not have intended for private suits to be barred before a plaintiff has learned of
the unlawful acts. That argument lacks merit.
Section 1692k(d)’s clear text, which unambiguously
designates the occurrence of the violation as the event
that starts the one-year period for filing suit, is the most
“persuasive evidence of the purpose of [the] statute.”
United States v. American Trucking Ass’ns, 310 U.S.
534, 543 (1940). Generalized “notions of [the FDCPA’s]
‘basic purpose’ are * * * inadequate to overcome the
19
words of its text regarding the specific issue under consideration.” Mertens v. Hewitt Assocs., 508 U.S. 248, 261
(1993). Rather than attempt to discern whether a discovery rule would better effectuate the Act’s overall objectives, the Court should give effect to Congress’s judgment that Section 1692k(d)’s “violation occurs” trigger
best achieves Congress’s aims.
In any event, petitioner overstates the extent to
which applying Section 1692k(d) by its terms is likely to
preclude plaintiffs from bringing meritorious suits. The
Act’s overarching goal is to eliminate “abusive debt collection practices” through which professional “debt collectors” attempt to pressure debtors to repay their
debts. 15 U.S.C. 1692(e). Consistent with that objective, many acts the FDCPA forbids will be readily
apparent to a potential plaintiff. For example, the
FDCPA makes it unlawful for a debt collector:
•
to communicate with a consumer at an inconvenient time or place, 15 U.S.C. 1692c(a)(1);
•
to communicate directly with a consumer represented by counsel, or after the consumer has requested in writing that the debt collector cease
communications, 15 U.S.C. 1692c(a)(2) and (c);
•
to communicate with the consumer by postcard,
or to send the consumer mail in an envelope containing any language or symbol other than the
debt collector’s address and (if it does not disclose that the sender is a debt collector) its business name, 15 U.S.C. 1692f(7) and (8);
•
to engage in harassing, oppressive, or abusive
conduct, such as using or threatening violence,
using obscene language, or causing a phone to
ring repeatedly, 15 U.S.C. 1692d;
20
•
to repossess or disable property in which the collector has no enforceable security interest,
15 U.S.C. 1692f(6)(A);
•
to threaten to take nonjudicial action to dispossess or disable property if the debt collector has
no legal right to do so, 15 U.S.C. 1692f(6)(C); or,
•
to fail to send a required notice when first communicating with a consumer in connection with
collecting a debt, 15 U.S.C. 1692g(a).
Petitioner observes (Br. 32) that, for some FDCPA
violations, a consumer might know of the debt collector’s conduct but not of other facts or circumstances
that make that conduct unlawful. For example, the Act
prohibits a debt collector from communicating with a
consumer at the consumer’s place of employment only
if the debt collector “knows or has reason to know that
the consumer’s employer prohibits” such workplace
communications. 15 U.S.C. 1692c(a)(3). Although a
consumer ordinarily will know whether he has been contacted by a debt collector at work, he might not know
whether the debt collector had actual or constructive
knowledge of the employer’s workplace-communication
rule. The traditional discovery rule, however, would not
benefit a consumer in those circumstances. The Court
“ha[s] been at pains to explain” that, under the “discovery accrual rule” that courts have applied in certain
other contexts, “what starts the clock” is “discovery of
the injury, not discovery of the other elements of a
claim.” Rotella v. Wood, 528 U.S. 549, 555 (2000). Reading a discovery rule into Section 1692k(d) thus would
not address the concern that petitioner raises.
21
Petitioner is correct that, for some violations of the
FDCPA, a plaintiff might not learn even of the defendant’s conduct within the limitations period. For example, the Act generally bars debt collectors from communicating with third parties in connection with collecting a debt and from publicizing the debt. See 15 U.S.C.
1692b, 1692c(b), 1692d(3) and (4). A consumer will not
necessarily learn of such third-party communications
within one year. But it does not follow from that possibility that Congress intended to incorporate an acrossthe-board discovery rule.
Congress may have anticipated that most FDCPA
violations will come to the consumer’s attention promptly.
For example, communications intended to pressure or
cajole a consumer into paying a debt, whether through
harassment or embarrassment, will often be made
known to the consumer by design. See, e.g., Mangum
v. Action Collection Servs., 575 F.3d 935, 937-938
(9th Cir. 2009). And if a consumer remains unaware of
a violation because a defendant conceals its unlawful
conduct, traditional principles of “equitable tolling may
be one answer to the plaintiff ’s difficulty.” Rotella,
528 U.S. at 561; see id. at 560 (rejecting discovery rule
but clarifying that the Court’s decision did not displace
“equitable principles of tolling”). As discussed below, see
pp. 23-24, infra, Congress is “presumed to draft limitations periods in light of th[at] background principle,”
Young, 535 U.S. at 49-50, and it may have anticipated that
equitable tolling would address many of the situations
petitioner envisions.
To the extent cases might arise where Section
1692k(d) bars a suit by a plaintiff who did not learn of
an alleged violation within a year, and where equitable
tolling or other principles do not excuse the suit’s
22
untimeliness, that possibility reflects Congress’s balancing of “competing values,” Rodriguez v. United
States, 480 U.S. 522, 526 (1987) (per curiam). “[N]o statute yet known pursues its stated purpose at all costs,”
Henson v. Santander Consumer USA Inc., 137 S. Ct.
1718, 1725 (2017) (brackets, citation, and internal quotation marks omitted), and the FDCPA embodies various compromises, see, e.g., Obduskey v. McCarthy &
Holthus LLP, 139 S. Ct. 1029, 1035-1038 (2019). Congress may have concluded that, if no suit is brought
within a year of a violation and equitable principles do
not apply, policies of “repose, elimination of stale
claims, and certainty about a plaintiff ’s opportunity for
recovery and a defendant’s potential liabilities”
(Rotella, 528 U.S. at 555) under a strict-liability regime
outweigh allowing a private suit to proceed. 3
II. PETITIONER IDENTIFIES NO VALID BASIS FOR
EXCUSING HIS NONCOMPLIANCE WITH THE FDCPA’S
FILING DEADLINE
For the reasons set forth above, Section 1692k(d)’s
text clearly forecloses any argument that petitioner complied with Section 1692k(d), i.e., that petitioner filed his
suit within the one-year interval that Section 1692k(d)
specifies. Petitioner’s contention that a “discovery rule”
applies here might alternatively be understood as arguing that, even though he commenced this suit outside the
As noted above, p. 13, supra, some federal limitations provisions
that expressly incorporate a discovery rule also establish an explicit
outer limit on the period for filing suit. See also California Pub.
Emps.’ Ret. Sys. v. ANZ Sec., Inc., 137 S. Ct. 2042, 2049-2050 (2017).
Those provisions reflect Congress’s willingness to tolerate occasional cases in which even diligent plaintiffs are unable to file timely
suits, in order to further competing interests in finality and repose.
See id. at 2051.
3
23
FDCPA’s limitations period, that failure should be
excused on equitable or other similar grounds. See, e.g.,
Pet. Br. 13, 24 (describing “discovery rule” as an “equitable doctrine”). Courts have sometimes used the term
“discovery rule” in that manner, e.g., William A. Graham Co., 646 F.3d at 150, and many of the decisions
petitioner cites applied the substance of that approach.
Petitioner’s FDCPA suit, however, cannot be deemed
timely on that basis. Although the established doctrine
of equitable tolling applies to the FDCPA, petitioner
forfeited any equitable-tolling argument in this case.
Petitioner also points to decisions applying what is
arguably a distinct, per se rule for fraud cases. But to
the extent that rule differs from ordinary equitable tolling, it is inapplicable here because petitioner’s FDCPA
suit is not an action for fraud.
A. Traditional Principles Of Equitable Tolling Apply To
The FDCPA, But Petitioner Forfeited Any EquitableTolling Argument In This Case
1. Although some principles that save seemingly
time-barred suits from dismissal—such as a delayedaccrual discovery rule—“derive from legislative enactments,” others instead “derive from the traditional
power of the courts to ‘apply the principles . . . of equity
jurisprudence.’ ” California Pub. Emps.’ Ret. Sys. v.
ANZ Sec., Inc., 137 S. Ct. 2042, 2050 (2017) (citation
omitted). The “classic example is the doctrine of equitable tolling, which permits a court to pause a statutory
time limit ‘when a litigant has pursued his rights diligently but some extraordinary circumstance prevents
him from bringing a timely action.’ ” Ibid. (quoting
Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014)). “It is
hornbook law that limitations periods are customarily
24
subject to equitable tolling, unless tolling would be inconsistent with the text of the relevant statute.” Young,
535 U.S. at 49 (citations and internal quotation marks
omitted). Whether equitable tolling is available under a
particular law is a matter of statutory interpretation in
the sense that a court must determine whether Congress
intended to displace that doctrine. See, e.g., Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 714 (2019). But
equitable tolling is an exercise of “the judicial power to
promote equity, rather than to interpret and enforce statutory provisions.” ANZ Securities, 137 S. Ct. at 2051.
At least some of the decisions on which petitioner relies
(Br. 21-27) to support applying a discovery rule in substance applied equitable tolling. Holmberg, supra, for
example, involved a suit by a bank’s creditors against a
bank shareholder. The plaintiffs sought to obtain money
due to them under a provision of the Federal Farm Loan
Act, ch. 245, 39 Stat. 360, that made shareholders of a
bank responsible for the bank’s debts. Holmberg,
327 U.S. at 393 & n.1. The plaintiffs alleged that the
defendant had fraudulently concealed his ownership of
shares, effectively preventing the plaintiffs from suing
until they discovered the concealed ownership ten years
later. Id. at 393. The defendant contended that the suit
was untimely, arguing that, although the federal statute
lacked an express limitations provision, it implicitly incorporated a state-law time bar. Id. at 393-394.
Without addressing “[w]hen the liability, if any,
accrued in th[at] case,” the Holmberg Court held that
the statute was subject to “historic principles of equity,”
including the rule that a suit will not be dismissed
“because of mere lapse of time” if “fraudulent conduct
on the part of the defendant may have prevented the
plaintiff from being diligent” in bringing suit. 327 U.S.
25
at 395-397. This Court has described Holmberg as a
“paradigm application[ ] of equitable tolling principles,”
ANZ Securities, 137 S. Ct. at 2052, and it has often cited
that case to illustrate the doctrine, see, e.g., Petrella,
572 U.S. at 681; Lozano, 572 U.S. at 11; Young, 535 U.S.
at 49; Rotella, 528 U.S. at 560-561; Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350,
363 (1991). Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 232-233 (1959), and American Pipe &
Construction Co. v. Utah, 414 U.S. 538, 552-559 (1974),
likewise involved the application of equitable-tolling or
analogous principles to particular contexts. This Court
has described both decisions in those terms. See, e.g.,
ANZ Securities, 137 S. Ct. at 2051-2052; Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 & nn.3-4 (1990). 4
2. The parties and the court of appeals in this case
appear to agree that equitable tolling is available in
FDCPA suits in at least some circumstances. See Pet. Br.
16-19; Resp. Br. 35-36; Br. in Opp. 9-10; Pet. App. 13-14.
That conclusion is correct. Section 1692k(d) does not
expressly or implicitly preclude application of equitabletolling principles. To be sure, this Court has held in other
contexts that Congress’s adoption of a time bar that “runs
from the defendant’s last culpable act * * * , not from the
accrual of the claim,” is “close to a dispositive indication
that the statute is one of repose.” ANZ Securities,
Respondents describe (Br. 38-39) Glus as applying equitable
estoppel rather than equitable tolling. To the extent the doctrines
are meaningfully distinct, cf., e.g., Ramírez-Carlo v. United States,
496 F.3d 41, 49 (1st Cir. 2007) (noting that this Court has “treated
equitable estoppel as a form of equitable tolling” (citing Irwin,
498 U.S. at 96)); Kirkendall v. Department of the Army, 479 F.3d
830, 838-839 (Fed. Cir.) (en banc) (same), cert. denied, 552 U.S. 948
(2007), the distinction is irrelevant here because petitioner has not
separately argued that equitable estoppel applies, see Resp. Br. 39.
4
26
137 S. Ct. at 2049. But as petitioner notes, Section
1692k(d) lacks the other “common feature” often found in
statutes that impose inflexible repose periods: “a two-tier
structure” that pairs “a shorter statute of limitations and
a longer statute of repose.” Id. at 2049, 2055; see Pet. Br.
17-18. And nothing else in Section 1692k(d)’s text or context signals that Congress intended to displace traditional
equitable tolling.
Petitioner’s factual allegations, if true, might warrant application of equitable tolling. “Generally, a litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Credit Suisse Sec.
(USA) LLC v. Simmonds, 566 U.S. 221, 227 (2012)
(citation and emphasis omitted); cf. Menominee Indian
Tribe of Wis. v. United States, 136 S. Ct. 750, 756 n.2
(2016) (reserving judgment on whether that formulation, articulated in the habeas context, applies more
generally). Petitioner’s allegations that respondents
“purposefully ensured that [petitioner] could never
properly be served” in the debt-collection suit, 2 C.A.
App. 8a, and that respondents filed a false affidavit of
service attesting that he had been properly served, Pet.
Br. 7-8, might well constitute an extraordinary circumstance outside petitioner’s control—as an instance of, or
close analogue to, what courts have termed “fraudulent
concealment.” Klehr v. A. O. Smith Corp., 521 U.S. 179,
194 (1997); see 2 Corman §§ 9.7, 9.9, at 55-78.
It is less clear from the complaint whether petitioner
exercised the requisite degree of diligence. Cf. Credit
Suisse, 566 U.S. at 227. But in this pleading-stage posture, it is not apparent from the complaint that petitioner
could have learned of the debt-collection suit earlier by
27
reasonable effort. Amici Professors Bray et al. argue (Br.
21-22) that “[e]quitable tolling does not apply” here
because a victim who “does not know he has been injured”
cannot satisfy the diligence requirement because he is not
“pursuing his rights at all.” This misunderstands the
inquiry. A plaintiff who has been delayed in discovering
his injury satisfies the diligence requirement by showing
that he “remain[ed] in ignorance * * * without any fault
or want of diligence or care on his part.” Credit Suisse,
566 U.S. at 227 (emphasis altered; citation omitted).
In all events, the question whether equitable tolling
would apply in these circumstances is not presented in
this case. The court of appeals did not decide that issue
because it determined that petitioner had forfeited any
equitable-tolling argument by “fail[ing] to raise it on
appeal.” Pet. App. 13. Petitioner had argued in the district court that equitable tolling should apply, but the
court of appeals found that he had abandoned that argument on appeal. See pp. 5-6, 8, supra. Petitioner has not
challenged that finding in this Court, and he does not identify any “unusual circumstance[ ]” that would warrant
overlooking that forfeiture. OBB Personenverkehr AG v.
Sachs, 136 S. Ct. 390, 398 (2015). There is accordingly no
basis to overturn the court of appeals’ judgment based on
equitable-tolling principles. If the Court concludes, however, that consideration of equitable tolling is essential to
proper analysis of the question presented, it should dismiss the writ of certiorari as improvidently granted.
B. The Special Rule The Court Has Recognized For Fraud
Suits Does Not Apply To Petitioner’s FDCPA Claim
Petitioner also points (Br. 21-24) to a line of this
Court’s decisions beginning with Bailey v. Glover,
88 U.S. (21 Wall.) 342 (1875), that have arguably recognized a special, per se rule for fraud suits. Under that
28
rule, a limitations period is deemed not to apply to a suit
for fraud while the plaintiff, despite reasonable diligence,
remains unaware of the fraud. See id. at 348-350;
Gabelli, 568 U.S. at 449. That special rule is inapplicable
here because petitioner’s suit is not an action for fraud.
1. Early American courts placed particular weight on
English decisions addressing statute-of-limitations
issues because most States that adopted statutes of limitations patterned them closely on a 1623 English law.
See 1 Wood § 2, at 6; J. K. Angell, A Treatise on the Limitations of Actions at Law and Suits in Equity and Admiralty Ch. II, § 3, at 12 (2d ed. 1846) (Angell). English
courts of equity traditionally applied a principle that a
limitations period generally did not operate to bar an
action alleging fraud until the plaintiff discovered or reasonably should have discovered it. See 2 Joseph Story,
Commentaries on Equity Jurisprudence as Administered in England and America §§ 1521-1521a, at 737-739
(Rev. 2d ed. 1839); Angell Ch. XVIII, § 1, at 188. It was
less clear whether that principle also applied to actions
at law. See, e.g., John P. Dawson, Undiscovered Fraud
and Statutes of Limitation, 31 Mich. L. Rev. 591, 597-599
(1933) (Dawson); Angell Ch. XVIII, § 2, at 188-191;
Whether Fraud Is a Sufficient Answer, in an Action at
Law, to a Plea of the Statute of Limitations, 1 U.S. L.
Intelligencer & Rev. 139, 139-140 (1829) (Intelligencer).
Courts in this country likewise were initially divided on
the question. In an influential decision, Justice Story, riding circuit, concluded that the principle did apply to
actions at law. See Sherwood v. Sutton, 21 F. Cas. 1303,
1303-1308 (C.C.D.N.H. 1828) (No. 12,782). Ultimately,
that position came to predominate in lower courts. See
Dawson 599-606; Angell Ch. XVIII, §§ 3-4, at 191-195;
Intelligencer 140-141.
29
In 1875, this Court adopted that view as well. See Bailey, 88 U.S. (21 Wall.) at 348-350. In Bailey, an assignee
in bankruptcy brought suit to set aside a fraudulent conveyance that the defendant had effected “to defraud the
only creditor named in [the defendant’s bankruptcy] petition.” Id. at 343. The defendant sought dismissal under a
law that required suit to be brought “within two years
from the time of [sic] the cause of action accrued for or
against [the] assignee.” Id. at 344 (argument of counsel)
(citation and emphasis omitted). The Court held that dismissal was unwarranted, even though the suit “was not
filed until more than two years after the cause of action
accrued” and thus did not satisfy the limitations provision’s terms. Id. at 345, 349. The Court relied on a “very
often applied” principle that governed cases in which “the
object of the suit is to obtain relief against a fraud”:
[W]hen there has been no negligence or laches on the
part of a plaintiff in coming to the knowledge of the
fraud which is the foundation of the suit, and when
the fraud has been concealed, or is of such character
as to conceal itself, the statute does not begin to run
until the fraud is discovered by, or becomes known
to, the party suing [or his privies].
Id. at 347, 349-350.
In the ensuing years, the Court often reiterated Bailey’s rule. See, e.g., Exploration Co. v. United States,
247 U.S. 435, 446-448 (1918); Avery v. Cleary, 132 U.S.
604, 609-611 (1890); Amy v. Watertown (No. 2), 130 U.S.
320, 324-325 (1889); Traer v. Clews, 115 U.S. 528,
537-538 (1885); Rosenthal v. Walker, 111 U.S. 185, 190
(1884). But the Court appears to have applied that per
se rule only in suits that sounded in fraud that either
had been concealed or was inherently self-concealing.
30
See Exploration Co., 247 U.S. at 446 (suit by government to annul land patent based on fraud); Traer,
115 U.S. at 536 (suit to invalidate “fraudulent transactions”); Rosenthal, 111 U.S. at 186 (suit to recover
assets conveyed in “fraudulent transfer” under bankruptcy law). And it expressly declined to apply that
rule to a claim that did not involve concealed or selfconcealing fraud. See Avery, 132 U.S. at 609-611.
In Avery, a bankruptcy assignee brought suit to recover property that he alleged had been wrongfully
withheld from the estate, but he did not show that the
property had been fraudulently withheld. See 132 U.S.
at 609-611. The Court explained that the defendant’s
failure to disclose the property might have been an honest mistake and “would not establish fraud within the
meaning of the rule announced in Bailey.” Id. at 610. A
defendant’s efforts to conceal relevant facts from the
plaintiff in a non-fraud case might warrant application
of the ordinary rule of equitable tolling if the other
requirements of that doctrine are met. See, e.g., Holmberg, 327 U.S. at 395-396. But to the extent Bailey recognized a distinct, per se rule, the Court appears to have
applied that rule only to actions for fraud.
2. It is debatable whether the rule recognized in
Bailey is best understood as an interpretive rule for
construing limitations periods, or instead as an equitable principle—i.e., as either a specialized application of,
or close analogue to, equitable tolling. Some decisions,
including Bailey itself, describe the rule as delaying
when the time bar “begin[s] to run,” 88 U.S. (21 Wall.)
at 350, and the Court has stated that Bailey’s “equitable
doctrine is read into every federal statute of limitation,”
Holmberg, 327 U.S. at 397. But the Court has also
repeatedly cited Bailey as applying equitable tolling.
31
See Lozano, 572 U.S. at 11; Merck, 559 U.S. at 644;
Young, 535 U.S. at 49; Lampf, 501 U.S. at 363. That
characterization better accords with the origin of the
principle in courts of equity and the lack of any apparent textual basis for reading Bailey’s rule into many
limitations periods. In Exploration Co., for example,
the Court applied the Bailey rule while emphasizing
that the statute before it lacked any provision delaying
accrual of a cause of action until discovery. 247 U.S. at
447. And because the applicable limitations period in
Exploration Co. ran from the “date of the issuance of ”
the land patent that the plaintiff sought to annul, id. at
445 (citation omitted), the Bailey rule provided no evident basis for concluding that the suit had been filed
within the statutorily prescribed period.
However Bailey’s rule for fraud cases is understood,
it is inapplicable here because petitioner’s FDCPA
claim does not allege “fraud within the meaning of the
rule announced in Bailey.” Avery, 132 U.S. at 610. Private actions for fraud traditionally encompassed misrepresentations made knowingly or at least recklessly.
See, e.g., ibid.; SEC v. Capital Gains Research Bureau,
Inc., 375 U.S. 180, 192 (1963). FDCPA claims generally
do not require that element of a traditional fraud claim.
In general, the FDCPA’s private-action provision
imposes a strict-liability regime, and many of its provisions prohibit conduct that does not involve deception at
all, but rather involves harassment and abuse designed to
pressure a debtor to repay a debt. See pp. 3, 19-20, supra.
In this case, petitioner does not appear to allege a
knowing or reckless misrepresentation, which is not an
element of his FDCPA claim. See p. 3-5, supra. His
operative, amended complaint alleges a single claim:
that respondents “violated the FDCPA by contacting
32
[petitioner] without lawful ability to collect.” 2 C.A.
App. 9a. That claim was ostensibly based on his allegation that the debt-collection suit respondents commenced was itself time-barred. See ibid. That claim
does not sound in fraud, and neither FDCPA provision
the complaint cites (ibid.) requires a knowing or reckless
misrepresentation. One prohibits certain “threat[s],”
15 U.S.C. 1692e(5), and the other bars certain “false
representation[s],” 15 U.S.C. 1692e(2). But a claim
under either one would not require proof of a knowing
or reckless misrepresentation, and the complaint does
not allege any particular knowing or reckless misrepresentation made by respondents.
In his briefing below and in this Court, petitioner has
characterized his suit as focused instead on respondents’
allegedly intentional service of process at the wrong
address to conceal the debt-collection suit from petitioner. See Pet. Br. 8-9, 12; D. Ct. Doc. 17, at 4; Pet. App.
17 & n.2. But the amended complaint does not allege that
the intentional misdirection of service itself violated the
FDCPA. Rather, it alleges that the misdirection prevented petitioner from learning that respondents had
engaged in other conduct (filing a time-barred debtcollection lawsuit) that the FDCPA prohibited. As discussed above, if petitioner had preserved the argument,
those allegations (if true) might warrant equitable tolling. But they fall outside the class of suits to which this
Court traditionally has applied Bailey’s special rule for
fraud claims.
33
CONCLUSION
The judgment of the court of appeals should be
affirmed.
Respectfully submitted.
MARY MCLEOD
General Counsel
JOHN R. COLEMAN
Deputy General Counsel
STEVEN Y. BRESSLER
Assistant General Counsel
KRISTIN BATEMAN
Attorney
Bureau of Consumer
Financial Protection
JULY 2019
NOEL J. FRANCISCO
Solicitor General
MALCOLM L. STEWART
Deputy Attorney General
JONATHAN C. BOND
Assistant to the Solicitor
General
APPENDIX
1.
15 U.S.C. 1692 provides:
Congressional findings and declaration of purpose
(a)
Abusive practices
There is abundant evidence of the use of abusive,
deceptive, and unfair debt collection practices by many
debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of
individual privacy.
(b)
Inadequacy of laws
Existing laws and procedures for redressing these
injuries are inadequate to protect consumers.
(c)
Available non-abusive collection methods
Means other than misrepresentation or other abusive debt collection practices are available for the effective collection of debts.
(d)
Interstate commerce
Abusive debt collection practices are carried on to a
substantial extent in interstate commerce and through
means and instrumentalities of such commerce. Even
where abusive debt collection practices are purely intrastate in character, they nevertheless directly affect
interstate commerce.
(e)
Purposes
It is the purpose of this subchapter to eliminate
abusive debt collection practices by debt collectors, to
insure that those debt collectors who refrain from using
abusive debt collection practices are not competitively
(1a)
2a
disadvantaged, and to promote consistent State action
to protect consumers against debt collection abuses.
2.
15 U.S.C. 1692e provides in pertinent part:
False or misleading representations
A debt collector may not use any false, deceptive, or
misleading representation or means in connection with
the collection of any debt. Without limiting the general application of the foregoing, the following conduct
is a violation of this section:
*
*
*
*
*
(2) The false representation of—
(A) the character, amount, or legal status of any
debt; or
(B) any services rendered or compensation
which may be lawfully received by any debt collector
for the collection of a debt.
*
*
*
*
*
(5) The threat to take any action that cannot legally
be taken or that is not intended to be taken.
*
*
*
*
*
3a
3.
15 U.S.C. 1692k provides:
Civil liability
(a)
Amount of damages
Except as otherwise provided by this section, any
debt collector who fails to comply with any provision of
this subchapter with respect to any person is liable to
such person in an amount equal to the sum of—
(1) any actual damage sustained by such person
as a result of such failure;
(2)(A) in the case of any action by an individual,
such additional damages as the court may allow, but
not exceeding $1,000; or
(B) in the case of a class action, (i) such amount
for each named plaintiff as could be recovered under
subparagraph (A), and (ii) such amount as the court
may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of $500,000 or 1 per centum of the
net worth of the debt collector; and
(3) in the case of any successful action to enforce the foregoing liability, the costs of the action,
together with a reasonable attorney’s fee as determined by the court. On a finding by the court that
an action under this section was brought in bad faith
and for the purpose of harassment, the court may
award to the defendant attorney’s fees reasonable in
relation to the work expended and costs.
4a
(b)
Factors considered by court
In determining the amount of liability in any action
under subsection (a) of this section, the court shall consider, among other relevant factors—
(1) in any individual action under subsection
(a)(2)(A) of this section, the frequency and persistence of noncompliance by the debt collector, the
nature of such noncompliance, and the extent to which
such noncompliance was intentional; or
(2) in any class action under subsection (a)(2)(B)
of this section, the frequency and persistence of noncompliance by the debt collector, the nature of such
noncompliance, the resources of the debt collector,
the number of persons adversely affected, and the
extent to which the debt collector’s noncompliance
was intentional.
(c)
Intent
A debt collector may not be held liable in any action
brought under this subchapter if the debt collector shows
by a preponderance of evidence that the violation was
not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.
(d)
Jurisdiction
An action to enforce any liability created by this
subchapter may be brought in any appropriate United
States district court without regard to the amount in
controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.
5a
(e)
Advisory opinions of Bureau
No provision of this section imposing any liability
shall apply to any act done or omitted in good faith in
conformity with any advisory opinion of the Bureau,
notwithstanding that after such act or omission has
occurred, such opinion is amended, rescinded, or determined by judicial or other authority to be invalid for
any reason.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.