Amicus Curiae Brief — Kevin C. Rotkiske, Petitioner v. Paul Klemm, et al.

Supreme Court briefJul 19, 2019

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No. 18-328

IN THE

Supreme Court of the United States

KEVIN ROTKISKE,

Petitioner,

PAUL KLEMM, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

Brief of the Mortgage Bankers Association and the

Chamber of Commerce of the United States of America

as Amici Curiae in Support of Respondents

HELEN KANOVSKY

JUSTIN WISEMAN

MORTGAGE BANKERS ASSOCIATION

1919 M St. NW, 5th Floor

Washington, DC 20036

(202) 557-2700

Counsel for Amicus Mortgage

Bankers Association

DARYL JOSEFFER

JANET GALERIA

U.S. CHAMBER LITIGATION CENTER

1615 H St., NW

Washington, DC 20062

(202) 463-5337

Counsel for Amicus Chamber of

Commerce of the United States of

America

ELAINE J. GOLDENBERG

Counsel of Record

M UNGER, TOLLES & OLSON LLP

1155 F St. NW, 7th Floor

Washington, DC 20004

(202) 220-1100

Elaine.Goldenberg@mto.com

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE ...................... 1

INTRODUCTION ...................................................... 2

ARGUMENT .............................................................. 4

II.

There Is No Background Discovery Rule

For The “Blamelessly Ignorant” That

May Be Engrafted Onto The Text Of A

Federal Statute Of Limitations

Provision ......................................................... .4

This Court Should Not Endorse

The Background Rule That

Petitioner Urges ................................... 4

In Any Event, The Specific

Language Of The Statute Of

Limitations Provision At Issue

Here Precludes Implication Of A

Discovery Rule .................................... 16

Engrafting A Discovery Rule Onto The

FDCPA’s Limitations Provision, Or

Onto Limitations Provisions More

Generally, Would Have Broad Negative

Consequences ................................................ 20

CONCLUSION ........................................................ 28

TABLE OF AUTHORITIES

Page(s)

FEDERAL CASES

Rotkiske v. Klemm,

890 F.3d 422 (3d Cir. 2018) ................ 15, 17, 19, 20

American Pipe & Construction Co. v.

Utah,

414 U.S. 538 (1974) .............................................. 13

Amy v. City of Watertown,

130 U.S. 320 (1889) .................................. 10, 11, 12

Astoria Fed. Sav. & Loan Ass’n v.

Solimino,

501 U.S. 104 (1991) .............................................. 11

Bailey v. Glover,

88 U.S. (21 Wall.) 342 (1875) ......................... 12, 13

Baldwin County Welcome Center v.

Brown,

466 U.S. 147 (1984) .............................................. 11

Bay Area Laundry and Dry Cleaning

Pension Trust Fund v. Ferbar Corp.

of Cal.,

522 U.S. 192 (1997) ................................................ 6

Beach v. Ocwen Fed. Bank,

523 U.S. 410 (1998) .............................................. 27

iii

Board of Regents of Univ. of State of

N.Y. v. Tomanio,

446 U.S. 478 (1980) ........................................ 21, 23

BP Am. Prod. Co. v. Burton,

549 U.S. 84 (2006) .................................................. 8

Burnett v. Grattan,

468 U.S. 42 (1984) ................................................ 22

California Public Employees’ Retirement

System v. ANZ Sec., Inc.,

137 S. Ct. 2042 (2017) .............................. 17, 19, 26

Cent. Bank of Denver, N.A. v. First

Interstate Bank of Denver, N.A.,

511 U.S. 164 (1994) .......................................... 8, 25

Clark v. Iowa City,

87 U.S. (20 Wall.) 583 (1875) ................................. 6

Clark v. Martinez,

543 U.S. 371 (2005) ........................................ 13, 14

CTS Corp. v. Waldburger,

134 S. Ct. 2175 (2014) .......................................... 17

Duncan v. Walker,

533 U.S. 167 (2001) .............................................. 10

Exploration Co. v. United States,

247 U.S. 435 (1918) .............................................. 13

Gabelli v. SEC,

568 U.S. 442 (2013) .............................. 6, 11, 12, 19

Glus v. Brooklyn Eastern Dist. Terminal,

359 U.S. 231 (1959) ........................................ 12, 13

Graham County Soil & Water Conservation

Dist. v. United States ex rel. Wilson,

545 U.S. 409 (2005) ................................................ 6

Green v. Brennan,

136 S. Ct. 1769 (2016) ............................................ 6

Guar. Trust Co. v. United States,

304 U.S. 126 (1938) .............................................. 21

Henson v. Santander Consumer USA Inc.,

137 S. Ct. 1718 (2017) .......................................... 16

Holmberg v. Armbrecht,

327 U.S. 392 (1946) ........................................ 12, 13

Irwin v. Department of Veterans Affairs,

498 U.S. 89 (1990) ................................................ 15

Jacobson v. Healthcare Fin. Servs.,

434 F. Supp. 2d 133 (E.D.N.Y. 2006) ................... 23

Jerman v. Carlisle, McNellie, Rini,

Kramer & Ulrich LPA,

559 U.S. 573 (2010) .............................................. 23

Johnson v. Railway Express Agency, Inc.,

421 U.S. 454 (1975) ................................................ 6

Klehr v. A.O. Smith Corp.,

521 U.S. 179 (1997) ...................................... 6, 7, 22

Lozano v. Montoya Alvarez,

572 U.S. 1 (2014) ...................................... 12, 15, 16

Magwood v. Patterson,

561 U.S. 320 (2010) .............................................. 16

Mangum v. Action Collection Serv., Inc.,

575 F.3d 935 (9th Cir. 2009) ................................ 17

Merck & Co. v. Reynolds,

130 S. Ct. 1784 (2010) ............................................ 7

Miller v. Javitch, Block & Rathbone,

561 F.3d 588 (6th Cir. 2009) ................................ 23

Mills v. Habluetzel,

456 U.S. 91 (1982) .................................................. 6

Nat’l R.R. Passenger Corp. v. Morgan,

536 U.S. 101 (2002) ........................................ 16, 17

Obduskey v. McCarthy & Holthus LLP,

139 S. Ct. 1029 (2019) .......................................... 24

Order of R.R. Telegraphers v. Ry.

Express Agency,

321 U.S. 342 (1944) .............................................. 22

Palmer v. Champion Mortg.,

465 F.3d 24 (1st Cir. 2006) ................................... 27

Palmore v. United States,

411 U.S. 389 (1973) .............................................. 19

Pasquantino v. United States,

544 U.S. 349 (2005) .............................................. 14

Reading Co. v. Koons,

271 U.S. 58 (1926) .................................... 14, 15, 28

Rotella v. Wood,

528 U.S. 549 (2000) .......................................passim

SCA Hygiene Prod. Aktiebolag v. First

Quality Baby Prod., LLC,

137 S. Ct. 954 (2017) .............................................. 6

SEC v. Tambone,

597 F.3d 436 (1st Cir. 2010) ................................. 25

Stoneridge Inv. Partners, LLC v.

Scientific-Atlanta, Inc.,

552 U.S. 148 (2008) ................................................ 5

TRW Inc. v. Andrews,

534 U.S. 19 (2001) .........................................passim

United States v. Beggerly,

524 U.S. 38 (1998) ................................................ 25

United States v. Kubrick,

444 U.S. 111 (1979) .................................... 7, 21, 22

Urie v. Thompson,

337 U.S. 163 (1949) ................................................ 7

Wallace v. Kato,

549 U.S. 384 (2007) ................................................ 6

Wilder v. Va. Hosp. Ass’n,

496 U.S. 498 (1990) ................................................ 5

FEDERAL STATUTES

12 U.S.C. 1715z-4a(d) .................................................. 8

12 U.S.C. 2614 ........................................................... 26

vii

12 U.S.C. 3416 ............................................................. 8

12 U.S.C. 4010(d) ....................................................... 26

15 U.S.C. 77m ........................................................ 8, 27

15 U.S.C. 78r(c) ............................................................ 8

15 U.S.C. 78u-6 .......................................................... 18

15 U.S.C. 78u-6(h)(B)(1)(iii)(I)(bb) .............................. 8

15 U.S.C. 1635(f) ........................................................ 26

15 U.S.C. 1640(e) ....................................................... 26

15 U.S.C. 1641 ........................................................... 27

15 U.S.C. 1679i(1)(a).................................................. 18

15 U.S.C. 1679i(1)(b).................................................. 18

15 U.S.C. 1681j .......................................................... 19

15 U.S.C. 1681p ......................................................... 14

15 U.S.C. 1691e(f) ...................................................... 26

15 U.S.C. 1692d ......................................................... 19

15 U.S.C. 1692d(2) ..................................................... 13

15 U.S.C. 1692f(2) ...................................................... 19

15 U.S.C. 1692f(3) ...................................................... 19

15 U.S.C. 1692f(4) ...................................................... 19

15 U.S.C. 1692k ......................................................... 17

viii

15 U.S.C. 1692k(d) ..............................................passim

15 U.S.C. 1693m(g) .................................................... 26

15 U.S.C. 1711(a)(2) ..................................................... 9

15 U.S.C. 1935(b), (g) ................................................. 27

15 U.S.C. 3006(c) ......................................................... 9

15 U.S.C. 6104(a) ......................................................... 9

18 U.S.C. 2520(e) ......................................................... 9

18 U.S.C. 2710(c)(3) ..................................................... 9

19 U.S.C. 1621 ............................................................. 9

19 U.S.C. 1621(1) ....................................................... 10

26 U.S.C. 7431(d) ......................................................... 9

28 U.S.C 1658(b) .......................................................... 9

29 U.S.C. 2617(c) ....................................................... 27

31 U.S.C. 3731(b) ......................................................... 9

42 U.S.C. 9612(d)(2)(A) ................................................ 9

42 U.S.C. 9613(g)(1) ..................................................... 9

STATE STATUTES

225 Ill. Comp. Stat. Ann. 425/9.5 .............................. 28

N.Y. Unconsol. Law § 8610 (McKinney) ................... 28

S.C. Code Ann. § 35-1-509(j)(1) ................................. 28

OTHER AUTHORITIES

Bob Carlson, American Bar Assoc., ABA

President Says Fair Debt Collection

Practices Act Should Exclude

Attorneys, Bloomberg Law (Jan. 9,

2019), available at

https://news.bloomberglaw.com/bank

ruptcy-law/insight-aba-presidentsays-fair-debt-collection-practicesact-should-exclude-attorneys; .............................. 24

CFPB, Check Your Credit Report Once A

Year, available at

https://files.consumerfinance.gov

/f/documents/cfpb_adult-fin-ed_checkyour-credit-report.pdf ........................................... 19

Consumer Fin. Protection Bureau, Fair

Debt Collection Practices Act: CFPB

Annual Report 2016 (Mar. 2016) ......................... 23

Larry Cordell et al., The Cost of Delay,

Working Paper No. 13-15 (Apr. 24,

2013), available at

http://www.philadelphiafed.org/bankresources/publications/presentations/

the-cost-of-delay.pdf ............................................. 25

Richard A. Epstein, The Temporal

Dimension in Tort Law,

53 U. Chi. L. Rev. 1175 (1986) ............................. 22

Freddie Mac, Single-Family

Seller/Servicer Guide, Ex. 83 (Dec.

12, 2018),

http://www.freddiemac.com/singlefam

ily/service/pdf/exh83.pdf ....................................... 25

FTC, Free Credit Reports,

https://www.consumer.

ftc.gov/articles/0155-free-creditreports ................................................................... 20

WebRecon Stats for Dec 2018: 2018

Ends with a Whimper, WebRecon

(last visited July 18, 2019),

https://webrecon.com/webrecon-statsfor-dec-2018-2018-ends-with-awhimper/ ............................................................... 23

Webster’s Third New Int’l Dictionary

2554 ....................................................................... 17

Ralph K. Winter, Paying Lawyers,

Empowering Prosecutors, and

Protecting Managers: Raising the

Cost of Capital in America,

42 Duke L.J. 945 (1993) ....................................... 25

2 H. Wood, Limitation of Actions (4th ed.

1916)........................................................................ 7

H.G. Wood, A Treatise on the

Limitations of Actions at Law and in

Equity (1901) ........................................................ 11

Nathaniel Wuerffel, Market Structure

and Liquidity in the U.S. Treasury

and Agency Mortgage-Backed

Security (MBS) Markets (May 17,

2016), available at

https://www.newyorkfed.org/newseve

nts/speeches /2016/wue160517 ............................ 27

INTEREST OF THE AMICI CURIAE 1

The Mortgage Bankers Association (“MBA”) is a

national association representing the real estate

finance industry. It has more than 2,200 members,

including real estate finance companies, mortgage

companies, mortgage brokers, commercial banks,

thrifts, life insurance companies, and others in the

mortgage lending field. MBA seeks to strengthen the

nation’s residential and commercial real estate

markets, to support sustainable homeownership, and

to extend access to affordable housing to all

Americans.

The Chamber of Commerce of the United States of

America (the “Chamber”) is the world's largest

business federation. It represents 300,000 direct

members and indirectly represents the interests of

more than 3 million companies and professional

organizations of every size, in every industry sector,

and from every region of the country. An important

function of the Chamber is to represent the interests

of its members in matters before Congress, the

Executive Branch, and the courts. To that end, the

Chamber regularly files amicus curiae briefs in cases

that raise issues of concern to the nation’s business

community.

Amici have a strong interest in ensuring that

statutory provisions stating when applicable statutes

of limitations begin to run are enforced just as

Congress has written them. Implication of a discovery

Pursuant to Rule 37.6 of this Court, amici affirm that no counsel

for a party authored this brief in whole or in part and that no

person other than amici, their members, and their counsel made

a monetary contribution to its preparation or submission. The

parties have consented to the filing of this brief.

rule into the Fair Debt Collection Practices Act

(FDCPA) is inconsistent with basic principles of

statutory interpretation, and it would undermine

repose and certainty in important sectors of the

economy.

INTRODUCTION

This case presents a useful opportunity for this

Court to clarify that, contrary to petitioner’s

argument, Congress does not legislate (and has not

legislated in the past) against a background discoveryof-injury rule that is to be implied into federal statutes

of limitations in favor of any plaintiff who was

“blamelessly ignorant” (Pet. Br. 28) of his injury. As

Justice Scalia explained in his opinion concurring in

the judgment in TRW Inc. v. Andrews, 534 U.S. 19

(2001), there is no historical grounding for such a rule.

And when Congress wishes to use discovery of injury

as a means of triggering the running of a statute of

limitations, it has said so expressly. This Court should

not engraft language that Congress has found

appropriate only in a limited category of circumstances

onto statutory provisions where that language does

not appear.

That is particularly true given that the judgment

reflected in a statute of limitations is so

quintessentially legislative. Any statute of limitations

reflects a balance between a policy in favor of

redressing injuries and a policy in favor of repose—and

Congress sometimes finds the latter policy

particularly compelling. Repose creates certainty; it

avoids presentation of stale claims, as to which

evidence may no longer be available; and it relieves

burdens on the judicial system. Congress’s judgment

in favor of repose should not be disturbed by

interpreting statutory language to mean something

other than what it actually says.

To be sure, as Justice Scalia’s concurring opinion

also explained, there is some historical basis in cases

of fraud for affording some relief with respect to the

limitations period. But this Court’s cases do not

establish a discovery rule in that regard that Congress

could have understood itself to be legislating against.

And, in any event, there is no warrant for applying

such a rule to statutes as to which claims sometimes

may implicate fraudulent conduct and sometimes may

implicate conduct that has nothing to do with fraud.

That would countenance reading the same statutory

language to mean two different things depending on

particular factual circumstances, an approach to

statutory interpretation that this Court has firmly

rejected. The better approach is the one taken by the

court of appeals below: assessing whether a plaintiff

asserting fraudulent concealment meets the

requirements of the separate equitable tolling

doctrine, under which tolling is “the exception, not the

rule.” Rotella v. Wood, 528 U.S. 549, 561 (2000).

Regardless of how the Court resolves those broader

questions, no implied discovery rule can apply here

given the language of the FDCPA’s statute-oflimitations provision. Under 15 U.S.C. 1692k(d), the

limitations period begins running on the date when

the alleged “violation” occurred. That language, which

does not appear in any of the statutes addressed in this

Court’s prior cases involving discovery of injury,

admits of no exceptions. And whether petitioner

qualifies for equitable tolling is not presented in this

case given his forfeiture of that argument in the lower

courts.

Accepting petitioner’s construction of the FDCPA

would have serious negative consequences—and those

consequences would only expand along with the scope

of any discovery rule that this Court were to adopt. As

to the FDCPA itself, imposition of a discovery rule

would upset settled expectations, likely lead to

increased litigation, make debt collection more

expensive and difficult, and potentially interfere with

foreclosure, all of which would make credit more

expensive and otherwise have a deleterious economic

effect. Many other statutes—a number of them

involving finance-related matters—include language

virtually identical to the FDCPA, and extra-textual

lengthening of the limitations periods under those

statutes would also create uncertainty and economic

harm. In addition, to the extent that the Court were

to suggest that a discovery rule should be implied into

statutes that have different language than Section

1692k(d), the ripple effects of that decision would

reach into many corners of federal and state

limitations law, with seriously destabilizing effects.

ARGUMENT

There Is No Background Discovery Rule For

The “Blamelessly Ignorant” That May Be

Engrafted Onto The Text Of A Federal

Statute Of Limitations Provision

A. This Court Should Not Endorse The

Background Rule That Petitioner Urges

Petitioner claims that he “is not advocating that

the Court adopt a generally applicable discovery rule.”

Pet. Br. 16 n.16. In fact, though, he is necessarily

asserting the existence of a background discovery

rule—one seemingly not limited to claims of fraud—

that is implied into federal statutes of limitations even

when Congress has not chosen to enact such a rule.

See, e.g., id. at 28 (arguing that “it is difficult to

imagine that Congress would have expected anything

other than judicial application of the discovery rule to

the FDCPA claim of Petitioner or any other

blamelessly ignorant plaintiff”). Although this Court’s

decision in TRW appears to leave that question open

to some degree, see 534 U.S. at 27 (stating that “[t]o

the extent” a “presumption exists” that “all federal

statutes of limitations, regardless of context,

incorporate a general discovery rule unless Congress

has expressly legislated otherwise,” the court of

appeals “conspicuously overstated its scope and force”)

(citation omitted), no such background rule exists now,

or existed in 1977 when Congress enacted the FDCPA.

This Court should clarify the law and bring order and

certainty to the interpretation of federal statutes of

limitations by rejecting the contention that a discovery

rule should be implied into the FDCPA or into federal

statutes more generally. See id. at 38 (Scalia, J.,

concurring in the judgment) (explaining that

expressions of “uncertainty” about the “background

rule” make “all unspecifying new legislation a roll of

the dice” and “cast[] the meaning of innumerable other

limitation periods in doubt”).

1. Congress’s enactment of a statute of limitations

for claims under a federal statute “reflects a concern,

grounded in separation of powers, that Congress

rather than the courts controls the availability of

remedies for violations of statutes.” Stoneridge Inv.

Partners, LLC v. Scientific-Atlanta, Inc., 552 U.S. 148,

165 (2008) (quoting Wilder v. Va. Hosp. Ass’n, 496 U.S.

498, 509 n.9 (1990)). Congress is, after all, the proper

body to decide how “to strike the balance between

remediation of all injuries and a policy of repose,”

TRW, 534 U.S. at 38 (Scalia, J., concurring in the

judgment)—a judgment that may involve “subtle and

difficult” questions, Klehr v. A.O. Smith Corp., 521

U.S. 179, 191-193 (1997); see Johnson v. Railway

Express Agency, Inc., 421 U.S. 454, 463-464 (1975)

(explaining that imposition of a limitations period

“reflects a value judgment concerning the point at

which the interests in favor of protecting valid claims

are outweighed by the interests in prohibiting the

prosecution of stale ones”); Mills v. Habluetzel, 456

U.S. 91, 101 n.9 (1982) (limitations decisions are “best

left to legislative determination and control”).

The “standard rule” against which the courts

interpret Congress’s enactments is, and long has been,

that a “limitations period commences when the

plaintiff has a complete and present cause of action.”

TRW, 534 U.S. at 36 (Scalia, J., concurring in the

judgment) (quoting Bay Area Laundry and Dry

Cleaning Pension Trust Fund v. Ferbar Corp. of Cal.,

522 U.S. 192, 201 (1997)). This Court has frequently

stated as much. See, e.g., Gabelli v. SEC, 568 U.S. 442,

448 (2013) (noting that the standard rule has governed

since the 1830s); Green v. Brennan, 136 S. Ct. 1769,

1776 (2016); Graham County Soil & Water

Conservation Dist. v. United States ex rel. Wilson, 545

U.S. 409, 418 (2005); Wallace v. Kato, 549 U.S. 384,

388, 391-392 (2007); Clark v. Iowa City, 87 U.S. (20

Wall.) 583, 589 (1875).

That standard rule does not ask whether the

plaintiff has knowledge of the injury underlying the

cause of action, or of any of the other facts that give

rise to the cause of action. Rather, it asks only

whether those facts exist. See, e.g., SCA Hygiene Prod.

Aktiebolag v. First Quality Baby Prod., LLC, 137 S. Ct.

954, 962 (2017) (explaining that it is “not ordinarily

true” that a discovery rule “triggers the running of a

statute of limitations” and concluding that a discovery

rule “is not a universal feature of statutes of

limitations”); 2 H. Wood, Limitation of Actions

§ 276c(1), at 1411 (4th ed. 1916) (“That a person

entitled to an action has no knowledge of his right to

sue, or of the facts out of which his right arises, does

not postpone the period of limitation.”).

This Court has never held that a discovery rule

should be implied into a statute of limitations simply

because a “blamelessly ignorant” plaintiff misses the

deadline for filing suit. None of the cases cited by

petitioner articulates such a broad-based rule. Setting

aside certain cases involving fraud, which are

discussed further below, see pp. 11-16, infra, this

Court has squarely held on only one occasion that a

discovery rule should be implied.

See Urie v.

Thompson, 337 U.S. 163, 169-171 (1949) (medical

claim under Federal Employers’ Liability Act). As

Justice Scalia explained in his concurrence in TRW,

that case rests on an outdated mode of statutory

interpretation that looks to how “humane” the

underlying legislation can be said to be, id. at 170—a

question that is for Congress to answer in choosing the

language of a statute-of-limitations provision in the

first place. See TRW, 534 U.S. at 37 (Scalia, J.,

concurring in the judgment); see also id. at 37 n.2

(noting that on several other occasions the Court has

observed that the courts of appeals have implied an

injury-discovery rule, but has not adopted that

principle itself) (citing United States v. Kubrick, 444

U.S. 111, 120 & n.7 (1979) (medical-malpractice

action), Rotella, 528 U.S. at 555, and Klehr, 521 U.S.

at 191); id. at 27-28 (majority opinion) (reaching

similar conclusion); Merck & Co. v. Reynolds, 130 S.

Ct. 1784 (2010) (discussing discovery rule in case

involving express statutory discovery-rule provision).

In any event, no background discovery rule for the

blamelessly ignorant can be derived from a single case

decided in 1949. And if Congress wishes to vary the

standard rule, it well knows how to do so expressly.

See TRW, 534 U.S. at 38 (Scalia, J., concurring in the

judgment); see also BP Am. Prod. Co. v. Burton, 549

U.S. 84, 92 (2006) (rejecting argument that statute of

limitations was intended to apply to administrative

proceedings when Congress “knew how to identify

administrative proceedings” expressly); cf. Cent. Bank

of Denver, N.A. v. First Interstate Bank of Denver, N.A.,

511 U.S. 164, 176-177, 181 (1994) (rejecting argument

that “general principles of tort law” on aiding and

abetting should be engrafted onto all statutes given

that Congress “knew how to impose aiding and

abetting liability when it chose to do so”). A multitude

of federal statutes of limitations—including statutes

enacted before the enactment of the FDCPA in 1977—

expressly incorporate a discovery rule of some kind,

making a limitations period run in some or all

circumstances from the date that the plaintiff

discovered his injury or other key facts. 2

See, e.g., 12 U.S.C. 1715z-4a(d) (authorizing certain housing

claims brought within six years after the government “discovers

any use of a property’s assets and income in violation of”

regulations); 12 U.S.C. 3416 (authorizing claims regarding right

to financial privacy brought within three years of “the date of

discovery of [the] violation”); 15 U.S.C. 77m (under certain

securities laws, “[n]o action shall be maintained * * * unless

brought within one year after the discovery of the untrue

statement or the omission, or after such discovery should have

been made by the exercise of reasonable diligence,” with outside

period of repose) (enacted before 1977); 15 U.S.C. 78r(c) (similar)

(enacted before 1977); 15 U.S.C. 78u-6(h)(B)(1)(iii)(I)(bb) (three2

If Congress had believed that courts would imply a

discovery rule into a federal statute for a plaintiff who

was unaware of his injury during the limitations

period, those discovery-rule provisions would have

been superfluous. See TRW, 534 U.S. at 31 (“It is ‘a

year time limit for anti-retaliation actions by securities

whistleblowers from “the date when facts material to the right of

action are known or reasonably should have been known by the

employee alleging a violation”); 15 U.S.C. 6104(a) (authorizing

claims relating to telemarketing brought “within 3 years after

discovery of the violation”); 15 U.S.C. 1711(a)(2) (claims

regarding land-sale contracts must be brought within three years

of “discovery of the violation or after discovery should have been

made by the exercise of reasonable diligence”); 15 U.S.C. 3006(c)

(authorizing claims regarding horse-betting filed within three

years of “the discovery of the alleged violation upon which such

civil action is based”); 18 U.S.C. 2520(e) (authorizing civil claims

for interception or use of certain communications if brought

within “two years after the date upon which the claimant first has

a reasonable opportunity to discover the violation”); 18 U.S.C.

2710(c)(3) (authorizing civil claims for wrongful disclosure of

certain records if brought within two years of “the date of

discovery”); 19 U.S.C. 1621 (under tariff law, providing that with

respect to certain statutory violations “no suit or action * * * may

be instituted unless commenced within 5 years after the date of

the alleged violation or, if such violation arises out of fraud,

within 5 years after the date of discovery of fraud”); 26 U.S.C.

7431(d) (authorizing claims for unauthorized disclosure of tax

information brought within two years “after the date of discovery

by the plaintiff of the unauthorized inspection or disclosure”); 28

U.S.C 1658(b) (claim of securities fraud may be brought no later

than two years “after the discovery of the facts constituting the

violation,” with five-year repose period); 31 U.S.C. 3731(b)

(authorizing claims under False Claims Act brought within three

years of “the date when facts material to the right of action are

known or reasonably should have been known” to a U.S. official);

42 U.S.C. 9612(d)(2)(A) (authorizing claims regarding hazardous

substances brought within three years of the “date of the

discovery of the loss and its connection with the release in

question”); 42 U.S.C. 9613(g)(1) (similar).

cardinal principle of statutory construction’ that ‘a

statute ought, upon the whole, to be so construed that,

if it can be prevented, no clause, sentence, or word

shall be superfluous, void, or insignificant.’”) (quoting

Duncan v. Walker, 533 U.S. 167, 174 (2001)). That

strongly suggests that Congress understood the

“standard rule,” and not a discovery rule, as the

background principle against which it was legislating. 3

While the professors’ amicus brief filed in support

of neither party suggests (at 14-18) that Congress’s

discovery-rule enactments all serve special clarifying

purposes that a background discovery rule would not

address, that is simply not so. See, e.g., 19 U.S.C.

1621(1) (statute of limitations providing for discovery

rule in cases of fraud without imposing outside period

of repose). More generally, if Congress were indeed

legislating with an understanding that some

background discovery-rule-by-implication existed, it

would be odd indeed for Congress to enact affirmative

discovery rules that cover only certain limited

situations. It would make far more sense for Congress

to state that no discovery rule should be applied in

specified circumstances. But neither petitioner nor

any of his amici has come forward with examples of

that kind of negatively stated enactment.

As the Court explained in 1889 in Amy v. City of

Watertown, 130 U.S. 320 (1889), “great caution” must

be exercised in deciding that “the running of a statute

of limitation may be suspended by causes not

According to petitioner (Br. 28 n.25), when this Court decided

TRW in 2001 Congress may have experienced some doubt about

the existence of a background discovery rule, thus explaining why

Congress would start stating a discovery rule expressly in certain

statutes. But enactment of a number of the statutes cited in the

preceding footnote predated TRW.

mentioned in the statute itself,” lest “the court would

make the law instead of administering it.” Id. at 32325. 4 Concluding that a background discovery rule for

all “blamelessly ignorant” plaintiffs exists now, or

existed in 1977, would throw that caution to the winds.

There is no warrant for that kind of departure from

statutory text, or for the imposition of what amounts

to a clear-statement rule by which Congress can avoid

implication of a discovery limitations trigger only if it

disclaims clearly any intent that such a rule apply.

Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S.

104, 108-109 (1991) (clear-statement rule intrudes on

Congress’s legislative authority and is therefore

justified only to protect “independent values of * * *

magnitude and constancy” such as federalism and

separation of powers). Moreover, the strong interest

in repose and certainty, as well as in avoiding

litigation of stale claims, points powerfully in the other

direction.

As Justice Scalia explained in his TRW

concurrence, although “Congress has been operating

against the background rule” set forth above “for a

very long time,” there also has “historical[ly]” been

See ibid. (“The general rule is that the language of the act must

prevail, and no reasons based on apparent inconvenience or

hardship can justify a departure.”); see also, e.g., Gabelli, 568 U.S.

at 454; Baldwin County Welcome Center v. Brown, 466 U.S. 147,

152 (1984) (per curiam) (“Procedural requirements established by

Congress for gaining access to the federal courts are not to be

disregarded by courts out of a vague sympathy for particular

litigants.”); H.G. Wood, A Treatise on the Limitations of Actions

at Law and in Equity § 274 (1901) (describing discovery principle

as “a judicial exception engrafted upon the statute, by the

assumption of legislative and equitable powers,” that “is not

warranted by any principle or rule of law, nor can it be supported

by any known rule for the construction of statutes”).

some solicitude with respect to limitations periods for

parties who are claiming fraud. TRW, 534 U.S. at 37

(Scalia, J., concurring in the judgment); see Gabelli,

568 U.S. at 449; see also, e.g., Amy, 130 U.S. at 324325.

Despite the acknowledged historical roots of that

solicitude, Congress would not have understood in

1977 (let alone would understand now) that a

discovery rule in cases of fraud was to be implied into

all (or virtually all) federal statutes of limitations so as

to delay the commencement of the limitations period.

Such an understanding could not be reconciled with

Congress’s practice of enacting express discovery

rules—including in contexts in which fraud is clearly

at issue—when it wishes its statutes of limitations to

function in that way. See pp. 8-10, supra. And a

uniform principle along those lines cannot be derived

from this Court’s cases, which have often spoken in

terms of equitable tolling rather than of delay in the

commencement of a limitations period, see Lozano v.

Montoya Alvarez, 572 U.S. 1, 10-11 (2014) (describing

Holmberg v. Armbrecht, 327 U.S. 392 (1946), and

Bailey v. Glover, 88 U.S. (21 Wall.) 342 (1875), as

equitable tolling cases); have not found a fraud-specific

rule appropriate to every “context,” see Gabelli, 568

U.S. at 449; have described the fraud that might afford

relief from a statute of limitations in differing terms,

see, e.g., Glus v. Brooklyn Eastern Dist. Terminal, 359

U.S. 231, 231-232 (1959) (discussing “estoppel” and

focusing on whether defendant expressly misled

plaintiff as to the length of the statute of limitations);

have sometimes involved situations in which no

federal statute of limitations existed, see Holmberg,

327 U.S. at 394-395; and have stated that where

Congress has spoken directly to the statute of

limitations question “there is an end of the matter”

because what Congress has said is “definitive,” id. at

395; but see id. at 397 (stating in dicta that the

“equitable doctrine” regarding discovery of fraud “is

read into every federal statute of limitation”). 5

In any event, however, no fraud discovery rule

could possibly be implied with respect to any statute

that—like the FDCPA—proscribes not only acts that

might be said to be fraudulent but also acts that

cannot be characterized in that way because they

involve no deception. 6 See, e.g., 15 U.S.C. 1692d(2)

(proscribing use of profane language in collecting

debts). Language in a federal statute of limitations

about when a limitations period begins to run cannot

mean one thing in fraud cases and a different thing in

non-fraud cases. Rather, it must mean the same thing

in all cases involving claims governed by that

particular statute of limitations. Any other result

would run contrary to basic principles of statutory

interpretation. See, e.g., Clark v. Martinez, 543 U.S.

The cases relied upon petitioner (Br. 21-28) do not clarify the

matter. In Glus, the Court cited cases in which the Court had

stated that estoppel was not appropriate where Congress had

made some express provision. 359 U.S. at 231-232, 234 & n.11,

235. In Exploration Co. v. United States, 247 U.S. 435 (1918), the

Court variously spoke of fraudulent “concealment” and

“fraudulent transactions.” Id. at 449-450. Bailey v. Glover, 21

Wall. 342 (1875), involved affirmative concealment of fraud. Id.

at 348-349. And American Pipe & Construction Co. v. Utah, 414

U.S. 538 (1974), is simply irrelevant. It involves tolling, not the

discovery rule, and has nothing to do with fraud or even more

generally with blameless ignorance.

In addition, no such rule could apply to any statute that

indicated Congress’s contrary intent, whether implicitly or

explicitly. See TRW, 534 U.S. at 27-28. Congress has indicated

its contrary intent here. See pp. 16-20, infra.

371, 378, 382, 386 (2005) (rejecting “dangerous

principle that judges can give the same statutory text

different meanings in different cases,” which “would

render every statute a chameleon, its meaning subject

to change depending on” facts “in each individual

case,” and thus would “invent a statute rather than

interpret one”); Pasquantino v. United States, 544 U.S.

349, 358 (2005). It would embroil the courts in trying

to decide which statutory claims sound in fraud and

which ones do not—a challenging enterprise in a

statutory context divorced from the common law. And

it would render utterly inexplicable Congress’s choice

to enact statutes of limitations that specify, with

respect to causes of action that may or may not be

based on a claim of fraud, that a discovery rule applies

only to cases involving misrepresentations or other

indicia of fraud. See, e.g., 15 U.S.C. 1681p (at issue in

TRW). A case-by-case implied discovery rule for fraud

would already have accomplished exactly that aim.

No doubt for such reasons, this Court has rejected

the idea that a single statute of limitations can be read

two different ways. In Reading Co. v. Koons, 271 U.S.

58 (1926), the Court addressed the statute of

limitations in the Federal Employers’ Liability Act,

which provided that “no action shall be maintained

under this act unless commenced within two years

from the day the cause of action accrued.” Id. at 60.

One party argued that in cases of wrongful death the

cause of action did not accrue until appointment of an

administrator who was able to bring suit on behalf of

the decedent, asserting that background historical

principles dictated that conclusion. See id. at 64. The

Court disagreed, explaining that the statute also

applied to claims for personal injuries short of death,

as to which no administrator would ever be appointed,

and observing that “[i]t cannot be supposed that

Congress, in enacting the statute intended to impose a

fixed limitation of two years within which all actions

for personal injury must be begun, regardless of death

and of the time of appointment of an administrator of

the injured employee, * * * at the same time intended

to allow an indefinite period within which application

may be made for the appointment of an administrator

as the prerequisite to an action to recover for wrongful

death.” Id. at 63. It is equally fanciful to believe that

Congress meant the language of the FDCPA

limitations provision that specifies the trigger for the

running of the limitations period to be read in different

ways depending on the particular facts of the case

before the court.

As to a statute that covers at least some nonfraudulent conduct, then, a limitations inquiry

involving fraud should (absent some contrary

instruction in the statutory text) be directed instead to

the question whether equitable tolling might apply.

That is how the court of appeals approached the

problem here. See 890 F.3d at 428-429; see also, e.g.,

Rotella v. Wood, 528 U.S. 549, 560-561 (2000)

(rejecting discovery rule and stating that concern for

the “blameless[ly] ignoran[t]” can be dealt with

through “equitable principles of tolling”). Rather than

varying Congress’s express textual choice of the event

that triggers commencement of a limitations period,

“equitable tolling pauses the running of, or ‘tolls,’ a

statute of limitations when a litigant has pursued his

rights diligently but some extraordinary circumstance

prevents him from bringing a timely action.” Lozano,

572 U.S. at 10-11; see, e.g., Irwin v. Department of

Veterans Affairs, 498 U.S. 89, 96 (1990) (“equitable

tolling” of limitations period may be appropriate

“where the complainant has been induced or tricked by

his adversary’s misconduct into allowing the filing

deadline to pass”). Dealing with fraud under the

rubric of equitable tolling, if the statute at hand

permits, has the virtue of a firm grounding in a

common-law rule that this Court has consistently

recognized. See Lozano, 572 U.S. at 11. It also ensures

that varying of the limitations period by the courts is

“the exception, not the rule.” Rotella, 528 U.S. at 561;

see Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.

101, 114 (2002) (equitable-tolling doctrine is to be

“applied sparingly”).

B. In Any Event, The Specific Language Of

The Statute Of Limitations Provision At

Issue Here Precludes Implication Of A

Discovery Rule

Even assuming that it were appropriate in some

cases to imply a discovery rule into the text of a federal

statute-of-limitations provision that does not

expressly provide for such a rule, no such implication

is appropriate with respect to a statute of limitations,

like the one at issue in this case, under which the

“occur[rence]” of a “violation” triggers the running of

the limitations period.

15 U.S.C. 1692k(d); see

generally Henson v. Santander Consumer USA Inc.,

137 S. Ct. 1718, 1725-1726 (2017) (explaining in

FDCPA case that judiciary’s role is “to apply, not

amend, the work of the People’s representatives”);

Magwood v. Patterson, 561 U.S. 320, 334 (2010) (“We

cannot replace the actual text with speculation as to

Congress’ intent.”). Notably, none of the cases on

which petitioner relies in support of its asserted

background discovery-rule principle involved a statute

worded in that way.

1. Section 1692k(d) provides that “[a]n action to

enforce any liability created by this subchapter may be

brought * * * within one year from the date on which

the violation occurs.” 15 U.S.C. 1692k. Congress thus

chose to start the limitations period running on the

date of “the violation”—that is, the date of an alleged

culpable act or omission by the defendant.

Some other words commonly used in statutes of

limitations may arguably be “less-determinate,” 890

F.3d at 426, but the meaning of the word “violation” is

plain.

As Judge O’Scannlain has explained in

interpreting Section 1692k(d), “[a] ‘violation’ is ‘an

infringement or transgression’; it is not the discovery

of an infringement or a transgression.” Mangum v.

Action Collection Serv., Inc., 575 F.3d 935, 945 (9th

Cir. 2009) (O’Scannlain, J., specially concurring)

(quoting Webster’s Third New Int’l Dictionary 2554).

Accordingly, “[t]he ‘date on which the violation occurs’

must refer to the date on which the ‘infringement’ or

‘transgression’ complained of by the plaintiff took

place,” not some date after the violation when a

plaintiff who was previously unaware of the violation

discovered that he had been injured. Id. at 945; see

TRW, 534 U.S. at 28-33 (finding discovery rule

inconsistent with language of particular provision

before the Court); cf. California Public Employees’

Retirement System v. ANZ Sec., Inc., 137 S. Ct. 2042,

2049-2050 (2017) (provision that “runs from the

defendant’s last culpable act (the offering of the

securities), not from the accrual of the claim,” is not

subject to exception); CTS Corp. v. Waldburger, 134 S.

Ct. 2175, 2182 (2014) (same); Morgan, 536 U.S. at 109110 (requirement that a charge be filed “after” a

specified practice “occurred” means “that a litigant has

up to” a specified amount of time “after the unlawful

practice happened to file”).

That interpretation is confirmed by the existence of

statutes—including at least one involving consumer

credit—in which Congress chose to couple a

limitations period that runs from “the date of the

occurrence of the violation” with an express discovery

rule that operates as an exception to the normal

functioning of the limitation period. For example,

Section 1679i(1)(a) of Title 15 states that an action

under the Credit Repair Organizations Act may be

brought before “the end of the 5-year period beginning

on the date of the occurrence of the violation involved.”

15 U.S.C. 1679i(1)(a). Section 1679i(1)(b) then goes on

to state that in cases involving material and willful

misrepresentations the limitations period concludes

instead at “the end of the 5-year period beginning on

the date of the discovery by the consumer of the

misrepresentation.” 15 U.S.C. 1679i(1)(b).

That provision is a specific manifestation, involving

the same operative language found in Section

1692k(d), of the broader principle set forth above:

Congress would have had no need to specify a

discovery-rule exception to the usual limitations

period, governing specific cases in which the claim

under the statute involved a misrepresentation, if

Congress had believed that such a discovery rule

would be automatically read into subsection (a) despite

its specification of a “violation” as the “occur[rence]”

that triggers the running of the limitations period. See

pp. 8-10, supra; see also, e.g., 15 U.S.C. 78u-6 (similar

limitations provision combining “violation” trigger

with express discovery-rule exception). That cements

the conclusion that Congress did not understand or

intend for a discovery rule to somehow be read into the

“violation” language in Section 1692k(d). Rather, if

Congress had intended Section 1692k(d) to involve a

discovery rule in any set of circumstances, Congress

would have said so expressly. See, e.g., Palmore v.

United States, 411 U.S. 389, 395 & n.5 (1973).

Moreover, if Congress had expressly provided for a

discovery rule it also could have considered whether to

set an outside limit on the length of time a prospective

plaintiff has to discover his alleged injury. After all,

“statutes applying a discovery rule * * * often couple

that rule with an absolute provision for repose,”

Gabelli, 568 U.S. at 453, so as not to leave potential

defendants with an “interminable threat of liability,”

ANZ Sec., 137 S. Ct. at 2049-2050. Implying a

discovery rule into Section 1692k(d) would mean that

the provision has no such outside period of repose,

since the courts cannot fix one by judicial fiat. That

consequence underscores the fact that imposition of a

discovery rule is a judgment that should be left in

Congress’s hands.

As a practical matter, there is no reason here to

suppose that Congress intended a limitations period

for FDCPA claims that may never end. Most violations

of the FDCPA will be quickly known to prospective

plaintiffs. See 890 F.3d at 426-427. For instance, a

debtor can hardly fail to notice that he is experiencing

harassment, 15 U.S.C. 1692d, or that he has written a

post-dated check, 15 U.S.C. 1692f(2)-(4). Even with

respect to the violation alleged here, petitioner could

readily have discovered the unpaid amount within the

limitations period if he had—as federal authorities

recommend—checked his credit report on a yearly

basis (and, by federal statute, such a once-a-year

report can be obtained for free). See 15 U.S.C. 1681j;

CFPB, Check Your Credit Report Once A Year,

available at https://files.consumerfinance.gov/f/docum

ents/cfpb_adult-fin-ed_check-your-credit-report.pdf;

FTC, Free Credit Reports, available at https://www.

consumer.ftc.gov/articles/0155-free-credit-reports.

Congress’s provision of a one-year period that begins

running on the date of an FDCPA violation rather than

on the date of some later discovery of injury thus

represents an eminently rational judgment—one that

should remain in Congress’s own hands.

2. The en banc court of appeals left open the

possibility that a party similarly situated to petitioner

could assert entitlement to “equitable tolling,” which

the court described as potentially addressing “FDCPA

violations that involve fraudulent, misleading, or selfconcealing conduct.” 890 F.3d at 428. But the court

determined that petitioner had forfeited any such

argument in this case by failing to raise it. See ibid.

This case therefore presents no occasion for this Court

to map out the details of equitable tolling in an FDCPA

case. See generally pp. 15-16, supra. It is enough,

here, simply to note the possibility that where fraud is

at issue a party bringing an FDCPA suit may, on a

case-by-case basis, be able to establish that the oneyear period that runs from the date of the violation

should be tolled for some period of time once it has

already begun running.

II. Engrafting A Discovery Rule Onto The

FDCPA’s Limitations Provision, Or Onto

Limitations Provisions More Generally,

Would Have Broad Negative Consequences

Interpreting the FDCPA’s statute of limitations to

include an implied discovery rule for which Congress

did not provide, and that flies in the face of the text

Congress enacted, would have serious negative policy

consequences. Those consequences would reverberate

in industries affected by the FDCPA, depriving

financial institutions and actors involved in debt

collection of the certainty and repose that Congress

afforded them when it enacted a statute of limitations

that expires one year after the date of any violation.

Similar consequences would also reverberate in a

variety of other industries and areas of the law. The

same “violation” language set forth in the FDCPA

limitations provision appears in a number of other

federal statutes of limitations (as well as in state

statutes). And, of course, to the extent that this Court

were to endorse implication of a discovery rule into

statutes of limitations more generally, the negative

consequences would be felt even more widely.

1. Congress’s judgment that a plaintiff has one

year from the date of a violation to bring suit under the

FDCPA gives repose to debt-collectors who might be

subject to such a suit and to the parties for whom the

debts are being collected.

Limitations provisions are not, after all, “simply

technicalities.” Board of Regents of Univ. of State of

N.Y. v. Tomanio, 446 U.S. 478, 487 (1980). Rather,

they represent the legislature’s judgment that

potential defendants are eventually entitled to

“certainty,” Rotella, 528 U.S. at 555, and that “it is

unjust to fail to put the adversary on notice to defend

within a specified period of time.” United States v.

Kubrick, 444 U.S. 111, 117 (1979); see Guar. Trust Co.

v. United States, 304 U.S. 126, 136 (1938) (“The statute

of limitations is a statute of repose, designed to protect

the citizens from stale and vexatious claims, and to

make an end to the possibility of litigation after the

lapse of a reasonable time. It has long been regarded

by this Court * * * as a meritorious defense, in itself

serving a public interest.”). Statutes of limitations

also “promote justice” and judicial efficiency by

preventing “revival of claims that have been allowed

to slumber until evidence has been lost, memories

have faded, and witnesses have disappeared.” Order

of R.R. Telegraphers v. Ry. Express Agency, 321 U.S.

342, 348-349 (1944); see Kubrick, 444 U.S. at 117

(limitations statutes “protect defendants and the

courts from having to deal with cases in which the

search for truth may be seriously impaired by the loss

of evidence”); Burnett v. Grattan, 468 U.S. 42, 53

(1984); see generally Richard A. Epstein, The

Temporal Dimension in Tort Law, 53 U. Chi. L. Rev.

1175, 1182 (1986).

The implied discovery rule that petitioner urges

would, by contrast, create uncertainty and

unpredictability. Although discovery-rule provisions

that Congress has enacted are often backed by some

maximum deadline for suit that affords repose, under

petitioner’s approach no such repose would exist. See

p. 19, supra. Instead, a plaintiff could have an infinite

time to bring suit if he could claim that he did not

discover his injury until after the limitations period

would otherwise have run and he was not at fault for

that delay, so long as he did not allow more than the

length of the limitations period to elapse between the

time of that discovery and the filing of his complaint.

See 15 U.S.C. 1692k(d); Klehr, 521 U.S. at 187

(discovery rule that “lengthens the limitations period

dramatically” conflicts with a limitations statute’s

“basic objective” of ensuring repose); cf. id. at 199

(Scalia, J., concurring in part and concurring in the

judgment) (“[A]ny period of limitation is utterly

meaningless without specification of the event that

starts it running.”).

Imposing such a rule on the FDCPA would spur on

the cottage industry of FDCPA litigation. The number

of FDCPA suits is already high. See Consumer Fin.

Protection Bureau, Fair Debt Collection Practices Act:

CFPB Annual Report 2016, at 15 (Mar. 2016); U.S.

Chamber Amicus Br. (Midland Funding LLC v.

Johnson, No. 16-348) at App. 1a (number of plaintiffs

bringing individual FDCPA claims in federal court

grew from around 1,300 plaintiffs in 2001 to over

11,800 plaintiffs in 2015); WebRecon Stats for Dec

2018: 2018 Ends with a Whimper, WebRecon (last

visited July 18, 2019), https://webrecon.com/webreconstats-for-dec-2018-2018-ends-with-a-whimper/

(in

2016 through 2018 the number of FDCPA complaints

per year ranged between approximately 9,000 and

10,000).

And such suits—often asserting only

technical or non-meritorious violations—can readily

be used as a delaying tactic by debtors and as leverage

for settlements. Jerman v. Carlisle, McNellie, Rini,

Kramer & Ulrich LPA, 559 U.S. 573, 617 (2010)

(Kennedy, J., dissenting) (discussing “troubling

dynamic” associated with FDCPA suits); Miller v.

Javitch, Block & Rathbone, 561 F.3d 588, 596 (6th Cir.

2009) (recognizing “cottage industry” of FDCPA

litigation) (quoting Jacobson v. Healthcare Fin. Servs.,

434 F. Supp. 2d 133, 138-139 (E.D.N.Y. 2006)).

Extending the statute of limitations in the way that

petitioner suggests would only increase the number of

suits while upsetting “settled expectations.” Bd. of

Regents v. Tomanio, 446 U.S. 478, 487 (1980). And

defendants would not likely be able to predict exactly

which suits were coming, or how many; instead, they

would face the possibility of long-term liability with

respect to every step they ever take or have taken to

collect a debt. If a suit were brought at a great enough

length of time from the alleged violation, defendants

would likely no longer have relevant records, and the

courts—having

first

expended

resources

determining whether the plaintiff was “blamelessly

ignorant” and when he discovered his injury—might

have to wrestle with all of the problems associated

with stale claims.

A debt collector that must face FDCPA suits

brought long after the date of any violation may, as a

result, charge more for its services, or pay less to

acquire debt, and ultimately may have less success

collecting debts that financial institutions and others

are owed. Creating unnecessary and unpredictable

hurdles to collect legitimate debts disrupts lending

markets, possibly resulting in less capital to fund new

loans and support other economic activity. And when

it is “harder to collect valid debts, all consumers are

forced to pay more for credit.” Bob Carlson, American

Bar Assoc., ABA President Says Fair Debt Collection

Practices Act Should Exclude Attorneys, Bloomberg

Law (Jan. 9, 2019), available at https://news.

bloomberglaw.com/bankruptcy-law/insight-aba-presid

ent-says-fair-debt-collection-practices-act-should-excl

ude-attorneys; see ibid. (stating that the FDCPA can

“result[] in unfair ‘gotcha’ lawsuits, higher costs” for

businesses relying on others “to collect legitimate

debts, and more expensive credit for everyone”).

Moreover, to the extent that the debt in question is

a secured debt such as mortgage debt, a party could

attempt to use a newly discovered FDCPA claim as

leverage in a foreclosure or bankruptcy proceeding.

See generally Obduskey v. McCarthy & Holthus LLP,

139 S. Ct. 1029 (2019). More FDCPA suits and greater

uncertainty in that context could increase the costs

associated with foreclosure and make it more difficult

for lenders and servicers to foreclose when necessary,

which would affect communities through increased

blight due to prolonged foreclosures and would make

it harder for would-be home buyers to get mortgages

in the first place. See generally Larry Cordell et al.,

The Cost of Delay, Working Paper No. 13-15 at 3 (Apr.

24, 2013), available at http://www.philadelphiafed.org/

bank-resources/publications/presentations/the-cost-ofdelay.pdf (concluding that longer foreclosure timelines

greatly increase costs associated with foreclosure);

Freddie Mac, Single-Family Seller/Servicer Guide, Ex.

83 (Dec. 12, 2018), http://www.freddiemac.com/

singlefamily/service/pdf/exh83.pdf;

cf.

generally

United States v. Beggerly, 524 U.S. 38, 48-49 (1998) (as

to “ownership of land” it is of “special importance” that

involved parties “know with certainty what their

rights are, and the period during which those rights

may be subject to challenge”).

In short, as in other areas of the law, “uncertainty

and excessive litigation can have ripple effects.” Cent.

Bank, 511 U.S. at 189. Expending time and resources

in anticipating, litigating, or settling stale FDCPA

cases not only negatively affects the defendants (or

prospective defendants) themselves; it also increases

the cost of capital and otherwise inflicts more general

economic damage. SEC v. Tambone, 597 F.3d 436,

452-453 (1st Cir. 2010) (Boudin, J., concurring)

(explaining in securities case that “[n]o one

sophisticated about markets believes that multiplying

liability is free of cost”); Ralph K. Winter, Paying

Lawyers, Empowering Prosecutors, and Protecting

Managers: Raising the Cost of Capital in America, 42

Duke L.J. 945, 948 (1993) (“Unnecessary civil * * *

liability diminishes the return to, and increases the

cost of, capital.”).

2. If this Court rules that a discovery rule applies

despite the language of Section 1692k(d), similar

negative effects may well be felt with respect to other

federal statutes that include a “violation”-based

limitations period that is virtually identical to that

found in the FDCPA. Those statutes include (but are

not limited to) the Truth in Lending Act, which

imposes requirements regarding credit transactions,

see 15 U.S.C. 1640(e) (measuring limitations periods

for civil suit from “the date of the occurrence of the

violation”); see also 15 U.S.C. 1635(f); the Real Estate

Settlement Procedures Act, which governs various

aspects of the real estate settlement process, see 12

U.S.C. 2614 (action must be brought within specified

period “from the date of the occurrence of the

violation”); the Equal Credit Opportunity Act, which

addresses discrimination against credit applicants, see

15 U.S.C. 1691e(f) (private action shall not “be brought

later than 5 years after the date of the occurrence of

the violation,” although additional grace period is

afforded if an agency takes enforcement action); the

Electronic Funds Transfer Act, which deals with

electronic means of managing finances, see 15 U.S.C.

1693m(g) (action may be brought “within one year

from the date of the occurrence of the violation”), and

provisions relating to banks’ responsibilities to make

deposited funds available to customers, see 12 U.S.C.

4010(d) (action may be brought “within one year after

the date of the occurrence of the violation involved”).

It is likely no coincidence that so many financerelated limitations provisions contain that “violation”

language. That is an area in which certainty and

repose are especially valuable and necessary. Cf., e.g.,

ANZ Sec., Inc., 137 S. Ct. at 2055 (“stability and

reliance are essential components of valuation and

expectation for financial actors” in the securities

“marketplace”). For example, because a court in a

TILA case may decide the propriety of rescission of a

mortgage transaction under certain circumstances, 15

U.S.C. 1935(b), (g); Palmer v. Champion Mortg., 465

F.3d 24, 26-27 (1st Cir. 2006), or otherwise impugn a

mortgage lender’s actions and impose damages, a suit

under TILA can cast a cloud over an existing

mortgage. See generally Beach v. Ocwen Fed. Bank,

523 U.S. 410, 418 (1998); see also 15 U.S.C. 1641

(mortgage assignees are liable under TILA, and

subject to rescission remedy, under certain

circumstances). If the time to bring a suit is extended

by a discovery rule, then a cloud of uncertainty will

grow, costs to borrowers will increase, and the

liquidity necessary for a functioning mortgage market

could be compromised, since investors can price timelimited risk far better than indefinite liability. See,

e.g., Nathaniel Wuerffel, Market Structure and

Liquidity in the U.S. Treasury and Agency MortgageBacked Security (MBS) Markets (May 17, 2016)

(discussing economic importance of liquidity in

mortgage market), available at https://www.newyork

fed.org/newsevents/speeches /2016/wue160517.

Petitioner’s proposed rule also could well have

effects in many other areas in which repose is

necessary.

Various other federal statutes of

limitations run from the date of a “violation” (rather

than, for instance, from accrual of liability). See, e.g.,

15 U.S.C. 77m (to enforce liability under particular

provision of securities laws, action must be “brought

within one year after the violation upon which it is

based”); 29 U.S.C. 2617(c) (action may be brought

alleging violation of Family and Medical Leave Act not

later than “2 years after the date of the last event

constituting the alleged violation”). Various state-law

limitations periods do as well. See, e.g., S.C. Code Ann.

§ 35-1-509(j)(1) (certain securities-law violations

under Uniform Securities Act, which has been adopted

by a large number of States); 225 Ill. Comp. Stat. Ann.

425/9.5 (violation of Collection Agency Act); N.Y.

Unconsol. Law § 8610 (McKinney) (violation of rules

relating to rent).

3. Of course, to the extent that this Court were to

endorse implication of a discovery rule into all federal

statutes of limitations that do not foreclose such a rule

by their text, including statutes that use language

other than “violation,” the implications would be far

broader.

As this Court has explained, “[a]n

interpretation of a statute purporting to set a definite

limitation upon the time of bringing action, without

saving clauses, which would, nevertheless, leave

defendants subject indefinitely to actions for the wrong

done, would, we think, defeat its obvious purpose.”

Reading Co., 271 U.S. at 65. The purpose of many

federal limitations provisions would be defeated in just

that way by an implied discovery rule. Extending for

an uncertain and indefinite period of time the period

in which claims can be brought would undermine the

strong interest in repose and in avoiding litigation of

stale claims, and every sector of the economy would

suffer the resulting ill effects.

CONCLUSION

For the foregoing reasons, the judgment of the en

banc court of appeals should be affirmed.

Respectfully submitted,