No.

18-328

IN THE
SUPREME COURT OF THE UNITED STATES
_____________
KEVIN ROTKISKE,
Petitioner,
V.
PAUL KLEMM, ET AL.,
Respondents.
____________

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit
____________

BRIEF FOR PETITIONER

_____________

MATTHEW B. WEISBERG SCOTT E. GANT

WEISBERG LAW Counsel of Record
7 South Morton Avenue SAMUEL S. UNGAR
Morton, PA 19070 BOIES SCHILLER FLEXNER LLP
1401 New York Avenue, NW
Washington, DC 20005
(202) 237-2727

Attorneys for Petitioner

 i

QUESTION PRESENTED
Whether the “discovery rule” applies to the one-
year statute of limitations under the Fair Debt
Collection Practices Act, 15 U.S.C. §§ 1692, et seq.
 ii

PARTIES TO THE PROCEEDING

Petitioner is Kevin Rotkiske, the plaintiff below.

Respondents are Paul Klemm, Esq., Nudelman,

Klemm & Golub, P.C., Nudelman, Nudelman &
Ziering, P.C, Klemm & Associates, and John Does 1-
10, the defendants below.
 iii

TABLE OF CONTENTS

QUESTION PRESENTED ....................................... i

PARTIES TO THE PROCEEDING ......................... ii

TABLE OF AUTHORITIES ................................... vi

OPINIONS BELOW ................................................. 1

JURISDICTION ....................................................... 1

STATUTORY PROVISIONS .................................. 2

STATEMENT OF THE CASE ................................ 3

SUMMARY OF ARGUMENT................................ 11

ARGUMENT .......................................................... 14

I. The “Discovery Rule” ....................................... 14

II. Under the Best Reading of the FDCPA,

Petitioner’s Lawsuit Was Not Time-Barred
and Should Not Have Been Dismissed on
That Basis ........................................................ 16

A. The FDCPA’s Text Does Not Settle

Whether the Discovery Rule Applies to
Private Civil Lawsuits Under the
Statute....................................................... 16
 iv

B. Congress Is Presumed to Legislate

Against the Background of Common
Law Principles and Aware of This
Court’s Decisions ...................................... 19

C. Congress Reasonably Would Have

Believed Courts Would Apply the
Discovery Rule to the FDCPA In Light
of This Court’s Decisions Over the
Preceding Decades .................................... 21

D. The FDCPA’s Purposes and Structure

Suggest the Discovery Rule Applies to
Private Civil Lawsuits Under the
Statute....................................................... 29

1. Congress Designed the FDCPA to

Incentivize Private Civil Lawsuits as
the Primary Means For Achieving
the Statute’s Objectives ......................... 30

2. Congress Structured the FDCPA to

Include Among Its Targets
Numerous Specifically Prohibited
Actions About Which the Victim
Could or Likely Would Be Unaware
at the Time of the Violation ................... 31
 v

3. Dismissing Lawsuits Filed By

“Blamelessly Ignorant” Plaintiffs
After Discovery of an FDCPA
Violation as Time-Barred Is
Inconsistent With the Purposes and
Structure of the Statute, and Would
Yield “Odd” Results Eschewed by the
Court When Considering
Congressional Intent.............................. 36

E. Applying the Discovery Rule to the

FDCPA Is Fully Consistent With the
General Purposes Underlying Statutes
of Limitation ............................................. 39

CONCLUSION ....................................................... 41
 vi

TABLE OF AUTHORITIES

CASES

American Pipe & Constr. Co. v. Utah,

414 U.S. 538 (1974) ............................. 27, 39, 40

Artis v. District of Columbia,

138 S. Ct. 594 (2018) ....................................... 39

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

501 U.S. 104 (1991) ......................................... 19

Bailey v. Glover,
88 U.S. 342 (1874) .................................... passim

Bay Area Laundry & Dry Cleaning Pension

Trust Fund v. Ferbar Corp. of Cal., Inc.,
522 U.S. 192 (1997) .................................... 40-41

Board of Regents of Univ. of

State of New York v. Tomanio,
446 U.S. 478 (1980) ......................................... 39

California Pub. Emps.’ Ret. Sys. v.

ANZ Secs., Inc.,
137 S. Ct. 2042 (2017) .................... 15-16, 17, 20

Chaudhry v. Gallerizzo,
174 F.3d 394 (4th Cir. 1999) ........................... 31

China Agritech, Inc. v. Resh,

138 S. Ct. 1800 (2018) ..................................... 18

Corley v. United States,

556 U.S. 303 (2009) ......................................... 37
 vii

CTS Corp. v. Waldburger,

573 U.S. 1 (2014) ................................. 10, 17, 18

Davis v. Michigan Dep’t of Treasury,

489 U.S. 803 (1989) ......................................... 29

Exploration Co. v. United States,

247 U.S. 435 (1918) ........................20, 23, 24, 40

Fouts v. Express Recovery Servs., Inc.,

602 F. App’x 417 (10th Cir. 2015) ................... 31

Gabelli v. SEC,
568 U.S. 442 (2013) ......................................... 28

Glus v. Brooklyn E. Dist. Terminal,

359 U.S. 231 (1959) ......................................... 26

Gonzales v. Arrow Fin. Servs., LLC,

660 F.3d 1055 (9th Cir. 2011) ......................... 31

Gonzalez v. Kay,
577 F.3d 600 (5th Cir. 2009) ........................... 31

Graham Cty. Soil & Water Conservation Dist.

v. United States ex rel. Wilson,
559 U.S. 280 (2010) ......................................... 29

Green v. Brennan,
136 S. Ct. 1769 (2016) ............................... 37, 38

Henson v. Santander Consumer USA Inc.,

137 S. Ct. 1718 (2017) ................................. 4, 29

Holmberg v. Armbrecht,
327 U.S. 392 (1946) ........................24, 25, 26, 28
 viii

Honda v. Clark,
386 U.S. 484 (1967) .................................... 38-39

Irwin v. Department of Veterans Affairs,

498 U.S. 89 (1990) ........................................... 10

Jerman v. Carlisle, McNellie, Rini,

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

John R. Sand & Gravel Co. v. United States,

552 U.S. 130 (2008) .............................. 17, 39-40

Jones v. R.R. Donnelley & Sons Co.,

541 U.S. 369 (2004) .................................... 37-38

King v. Burwell,
135 S. Ct. 2480 (2015) ..................................... 29

Kolbasyuk v. Capital Mgmt. Servs., LP,

918 F.3d 236 (2d Cir. 2019) ............................. 31

Lampf, Pleva, Lipkind, Prupis &

Petigrow v. Gilbertson,
501 U.S. 350 (1991) ......................................... 17

LeBlanc v. Unifund CCR Partners,

601 F.3d 1185 (11th Cir. 2010) ....................... 31

Levins v. Healthcare Revenue Recov. Grp. LLC,

902 F.3d 274 (3d Cir. 2018) ............................. 31

Lozano v. Montoya Alvarez,

572 U.S. 1 (2014) ....................................... 10, 20
 ix

Macy v. GC Servs. Ltd. P’ship,

897 F.3d 747 (6th Cir. 2018) ........................... 31

Merck & Co., Inc. v. Reynolds,

559 U.S. 633 (2010) ........................15, 20, 25, 28

Meyer v. Holley,
537 U.S. 280 (2003) ......................................... 20

Midland Funding, LLC v. Johnson,

137 S. Ct. 1407 (2017) ................................... 3, 5

New Prime Inc. v. Oliveira,

139 S. Ct. 532 (2019) ....................................... 16

O’Boyle v. Real Time Resolutions, Inc.,

910 F.3d 338 (7th Cir. 2018) ........................... 31

Pace v. DiGuglielmo,
544 U.S. 408 (2005) ...................................... 9-10

Petrella v. Metro-Goldwyn-Mayer, Inc.,

572 U.S. 663 (2014) ..................................... 9, 17

Pollard v. Law Office of Mandy L. Spaulding,

766 F.3d 98 (1st Cir. 2014) .............................. 31

Reiter v. Cooper,
507 U.S. 258 (1993) .................................... 36-37

Rotella v. Wood,
528 U.S. 549 (2000) ......................................... 28

SCA Hygiene Prods. Aktiebolag v. First

Quality Baby Prods., LLC,
137 S. Ct. 954 (2017) ....................................... 19
 x

Scheffler v. Gurstel Chargo, P.A.,

902 F.3d 757 (8th Cir. 2018) ........................... 31

Sheriff v. Gillie,
136 S. Ct. 1594 (2016) ....................................... 3

Smith v. United States,

568 U.S. 106 (2013) .................................... 19-20

Sykes v. Harris,
No. 09 CIV. 8486 (DC), 2016 WL 3030156
(S.D.N.Y. May 24, 2016) .................................. 12

Sykes v. Mel S. Harris & Assocs. LLC,

780 F.3d 70 (2d Cir. 2015) ............................... 12

TRW Inc. v. Andrews,

534 U.S. 19 (2001) ..................................... 25, 28

United States v. Brockamp,

519 U.S. 347 (1997) ......................................... 17

United States v. Welden,

377 U.S. 95 (1964) ............................................. 2

United States v. Wells,

519 U.S. 482 (1997) ......................................... 20

Urie v. Thompson,
337 U.S. 163 (1949) ............................. 25, 26, 40
 xi

STATUTES AND LEGISLATIVE MATERIALS

15 U.S.C. § 1692 ................................................. 3, 29

15 U.S.C. § 1692b ................................................... 31

15 U.S.C. § 1692c ............................................. 32, 33

15 U.S.C. § 1692d .............................................. 33-34

15 U.S.C. § 1692e ............................................... 3, 34

15 U.S.C. § 1692f .......................................... 3, 34, 35

15 U.S.C. § 1692j .................................................... 35

15 U.S.C. § 1692k ........................................... 2, 4, 30

21 U.S.C. § 335b ..................................................... 17

28 U.S.C. § 1254(1)................................................... 1

28 U.S.C. § 1658 ..................................................... 17

Pub. L. 104-208, 110 Stat. 3009 (1996) ................. 34

Pub. L. No. 95-109, 91 Stat. 874 (1977) (the

“Fair Debt Collection Practices Act”) ....... passim

13 Weekly Comp. Pres. Doc.

(Sept. 20, 1977) ................................................ 21

123 CONG. REC. H8996

(daily ed. Sept. 8, 1977) ......................... 4, 30, 38

S. Rep. No. 95-382 (1977)......................................... 5

 xii

The Debt Collection Practices Act: Hearings

Before the Subcommittee on Consumer
Affairs of the House Banking, Currency
and Housing Committee on H.R. 11969,
94th Cong. (1976) ............................................ 21

OTHER AUTHORITIES

2 Calvin W. Corman,
Limitation of Actions (1991) ...........14, 22, 25, 39

2 Horace G. Wood, A Treatise on the

Limitation of Actions at Law and in
Equity (1893) ........................................ 22-23, 25

4 Charles Alan Wright & Arthur R. Miller,

Federal Practice & Procedure
(4th ed. Apr. 2019 update) .............................. 15

54 C.J.S. Limitations of Actions

(Mar. 2019 update) ......................... 14-15, 25, 39

Black’s Law Dictionary

(10th ed. 2014) ................................10, 12, 14, 39

Developments in the Law—Statutes of

Limitations, 63 Harv. L. Rev. 1177
(1950) .......................................................... 25-26

Ernst & Young, The Impact of Third-Party

Debt Collection on the US National and
States Economies in 2016 (2017).................... 4-5
 xiii

Jeff Sovern & Kate E. Walton, Are Validation

Notices Valid?: An Empirical Evaluation
of Consumer Understanding of Debt
Collection Validation Notices,
70 S.M.U. L. Rev. 63 (2017) ........................... 5-6

Kyle Graham, The Continuing Violation

Doctrine, 43 Gonzaga L. Rev. 271 (2008)........ 15

Larry M. Eig, Congressional Research Serv.,

Statutory Interpretation: General
Principles and Recent Trends (2014) .............. 20

Margaret Mikyung Lee, Congressional

Research Serv., Fair Debt Collection
Practices Act (FDCPA) (2013) ........................... 4

Mary S. Humes, RICO and a Uniform Rule

of Accrual, 99 Yale L. J. 1399 (1990) .............. 25

Note, Improving Relief From Abusive Debt

Collection Practices,
127 Harv. L. Rev. 1447 (2014) .......................... 6

Terry Carter, Payback: Lawyers on Both

Sides of Collection are Feeling Debt’s
Sting, 96 A.B.A. J. 40 (2010) ........................... 12

Thomas M. Cooley, A Treatise on the

Constitutional Limitations (1868)................... 40
 xiv

Viktar Fedaseyeu & Robert Hunt, The

Economics of Debt Collection:
Enforcement of Consumer Credit
Contracts (Fed. Reserve Bank of Phila.,
Working Paper No. 18-04, 2018) ....................... 6

2010 CFPB ANN. FDCPA REP. ........................... 5, 11

2011 CFPB ANN. FDCPA REP. ........................... 5, 11

2012 CFPB ANN. FDCPA REP. ........................... 5, 11

2013 CFPB ANN. FDCPA REP. ........................... 5, 11

2014 CFPB ANN. FDCPA REP. ........................... 5, 11

2015 CFPB ANN. FDCPA REP. ............................... 30

2016 CFPB ANN. FDCPA REP. ............................... 30

2017 CFPB ANN. FDCPA REP. ............................... 30

2018 CFPB ANN. FDCPA REP. ............................... 30

2019 CFPB ANN. FDCPA REP. ........................... 5, 30

 1

OPINIONS BELOW
The Opinion of the United States Court of
Appeals for the Third Circuit was issued on May 15,
2018, is reported at 890 F.3d 422, and is reproduced
in the Petition Appendix at Pet. App. 1.1
The March 15, 2016 Opinion of the United
States District Court for the Eastern District of
Pennsylvania is unreported, but is available at 2016
WL 1021140, and is reproduced at Pet. App. 15.
JURISDICTION
This Court has jurisdiction under 28 U.S.C.
§ 1254(1). The Third Circuit issued its opinion and
entered judgment on May 15, 2018. Pet. App. 1-14.
The Petition for Writ of Certiorari was filed on
September 11, 2018, and granted on February 25,
2019.

1 References to the Petition Appendix are in the form “Pet.

App.”
 2

STATUTORY PROVISIONS
This case concerns interpretation of the Fair
Debt Collection Practices Act (the “FDCPA”), Pub. L.
No. 95-109, 91 Stat. 874 (1977), including section
813(d), which provides:
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.
15 U.S.C. § 1692k(d).2

2 The “Jurisdiction” heading of 15 U.S.C. § 1692k(d) was not

included in the statute passed by Congress. § 813, 91 Stat. at
881. The heading was added by the Office of the Law Revision
Counsel, and has never been enacted into positive law. Where
a change “was made by a codifier without the approval of
Congress, it should be given no weight.” United States v.
Welden, 377 U.S. 95, 98 n.4 (1964).
 3

STATEMENT OF THE CASE

A. The Fair Debt Collection Practices Act
Confronted with “abundant evidence of the use
of abusive, deceptive, and unfair debt collection
practices by many debt collectors,” and finding that
then-existing laws and procedures were “inadequate
to protect consumers,” 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(a), (b), (e).3
The FDCPA’s broad proscriptions include a ban
on the use of “any false, deceptive, or misleading
representation” by debt collectors, including sixteen
specific forms of such conduct. § 1692e. The statute
similarly prohibits “unfair or unconscionable means
to collect or attempt to collect any debt.” § 1692f.
While government agencies—initially the
Federal Trade Commission (FTC), and now
primarily the Consumer Financial Protection
Bureau (CFPB)—are assigned reporting
responsibilities and enforcement authority by the

3 See also Sheriff v. Gillie, 136 S. Ct. 1594, 1598 (2016) (noting
enactment to prevent competitive disadvantage of
appropriately-acting debt collectors); Jerman v. Carlisle,
McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 577 (2010)
(“Congress enacted the FDCPA . . . to ensure that debt
collectors who abstain from [abusive] practices are not
competitively disadvantaged”). The statute also “seeks to help
consumers . . . by preventing consumer bankruptcies.”
Midland Funding, LLC v. Johnson, 137 S. Ct. 1407, 1414
(2017).
 4

FDCPA, “the chief means of obtaining compliance

with the act [is] . . . the civil liability section . . . by
enabling the consumer to sue whenever there has
been a violation of the act.” 123 CONG. REC. H8996
(daily ed. Sept. 8, 1977) (statement of Rep.
Annunzio, primary sponsor). As the Court has
observed, Congress included in the FDCPA a
“calibrated scheme of statutory incentives to
encourage self-enforcement.” Jerman, 559 U.S. at
603; see also Henson v. Santander Consumer USA
Inc., 137 S. Ct. 1718, 1720 (2017) (statute
“authorizes private lawsuits and weighty fines
designed to deter wayward collection practices”);
Margaret Mikyung Lee, Congressional Research
Serv., Fair Debt Collection Practices Act (FDCPA) 10
(2013) (The FDCPA reflects “congressional intent to
deter unlawful debt collection practices via private
enforcement actions.”). These statutory incentives
include the recovery of “any actual damage” suffered
from the violation, 15 U.S.C. § 1692k(a)(1), and the
discretionary award of statutory damages, subject to
certain limits. § 1692k(a)(2)(A). Congress also
provided for the award of attorney’s fees and costs to
prevailing plaintiffs. § 1692k(a)(3).
The third-party debt collection industry
governed by the FDCPA is enormous. According to
an Ernst & Young report commissioned by the
industry’s largest trade association, in 2016 U.S.
debt collection agencies earned $10.9 billion in
commissions and fees, and employed almost 130,000
individuals. Ernst & Young, The Impact of Third-
 5

Party Debt Collection on the US National and States

Economies in 2016 i (2017).4
Notwithstanding the FDCPA, the third-party
debt collection industry generates large numbers of
complaints to the federal government each year.
Between 2009 and 2013, the FTC received more than
600,000 complaints about debt collection activities.5
Congress recognized that attributes of the third-
party debt collection industry render it ripe for
consumer mistreatment. For instance, “[u]nlike
creditors, who generally are restrained by the desire
to protect their good will when collecting past due
accounts,” third-party debt collectors may “have no
future contact with the consumer and often are
unconcerned with the consumer’s opinion of them.”
S. Rep. No. 95-382, at 2 (1977); see also Jeff Sovern
& Kate E. Walton, Are Validation Notices Valid?: An
Empirical Evaluation of Consumer Understanding of
Debt Collection Validation Notices, 70 S.M.U. L. Rev.
63, 66 (2017) (“Congress’s view that it need regulate
only external collectors may perhaps be explained by
the perceived reluctance of original creditors to lose
customer good will by abusing customers. In
contrast, debt buyers and collectors who do not need

4 See also Midland Funding, 137 S. Ct. at 1416 (Sotomayor, J.,

dissenting) (“Debt collection is a lucrative and growing
industry.”); 2019 CFPB ANN. FDCPA REP. 8 (“Debt collection is
an $11.5 billion industry that employs nearly 118,500 people
across approximately 7,700 collection agencies in the United
States.”).
5 2010-14 CFPB ANN. FDCPA REPS. The CFPB has estimated

that “28 percent of consumers with a credit file have a trade

line listed for a debt a third party is collecting.” 2019 CFPB
ANN. FDCPA REP. 8.
 6

a good reputation among consumers can be less

concerned about alienating customers and so might
be tempted to behave badly.”). The operation of the
industry in the decades since the FDCPA was
enacted has not lessened the acute need for its
effective operation to deter and redress misconduct
by debt collectors. See Note, Improving Relief From
Abusive Debt Collection Practices, 127 Harv. L. Rev.
1447, 1449 (2014) (observing that “[t]he consumer
debt collection industry is premised on a high-
volume business model,” and that high volume
strategies “rely heavily on the assumption that
consumers often fail to show up to contest the case”
with “defective notice” among the reasons for failure
to respond); Viktar Fedaseyeu & Robert Hunt, The
Economics of Debt Collection: Enforcement of
Consumer Credit Contracts 1, 35 (Fed. Reserve Bank
of Phila., Working Paper No. 18-04, 2018) (“[w]hen
the creditor hires third-party firms that collect in
their own name . . . such firms are less constrained
by the creditor in terms of the practices that they
use”; “third-party debt collection generates, on
average, about 10 times more complaints from
consumers than a first-party debt collector”; third-
party debt collectors “use harsher debt collection
practices than original creditors”).
 7

B. Facts and Procedural History6

Between 2003 and 2005, Petitioner incurred
credit card debt of approximately $1,200.
Petitioner’s bank referred that debt to Respondent
Klemm & Associates (“Klemm”) for collection.
In March 2008, Klemm filed suit against
Petitioner seeking to collect on the debt. Klemm
attempted personal service at an address it believed
belonged to Petitioner, but Petitioner had moved.
Instead, an individual unknown to and unassociated
with Petitioner ostensibly accepted service.
However, Klemm was unable to locate Petitioner’s
new address, and the complaint was withdrawn.
Pet. App. 16.
In January 2009, Klemm again filed suit and
again attempted service at the same address from
which Petitioner had long ago moved.7 During this
attempt a different individual—also unknown to
Petitioner—ostensibly accepted service. Pet. App.
16. Klemm then filed with the court an Affidavit of
Service, which falsely verified that the “Adult in

6 This case comes to the Court after dismissal at the pleading

stage. Petitioner’s allegations were appropriately accepted as
true by the courts below when dismissing Petitioner’s case.
Pet. App. 4 n.2, 18. The Third Circuit therefore correctly
observed that “[t]he relevant facts of this case are undisputed.”
Pet. App. 3.
7 As the Third Circuit noted, Respondent Paul Klemm was
initially the managing partner of Respondent Klemm &
Associates, then moved to a different firm. That firm—initially
known as Nudelman, Nudelman & Ziering, and later known as
Nudelman, Klemm & Golub—is also named as a respondent.
Pet. App. 3 n.1. Like the Third Circuit, “for the sake of
simplicity we refer only to Klemm.” Id.
 8

charge of Defendant(s) residence” had been served.

Certification of Paul Klemm (“Klemm Certif.”) Ex. B,
Rotkiske v. Klemm, No. 15-3638 (Oct. 19, 2015 E.D.
Pa.), ECF No. 16-6.
Lacking notice of the second proceeding,
Petitioner did not appear, and on March 5, 2009, the
Philadelphia Municipal Court entered a default
judgment against Petitioner in the amount of
$1,182.39. Docket Report, Capital One Bank, N.A. v.
Rotkiske, SC-09-01-06-3327 (Phila. Cty. Mun. Ct.)
(“Mun. Ct. Dkt.”).
Petitioner lacked any knowledge of service of the
complaint, of the lawsuit against him, or the default
judgment, until September 2014, when he was
denied a home mortgage as a result of the default
judgment. Pet. App. 3, 16-17.
On June 29, 2015, less than one year after
discovering the lawsuit filed against him and the
default judgment, Petitioner filed suit in the United
States District Court for the Eastern District of
Pennsylvania. Pet. App. 3. He amended his
complaint on October 19, 2015. “The Amended
Complaint alleges that the Defendants deliberately
made sure that [Petitioner] would not be properly
served and thus wrongly obtained the default
judgment against him in violation of the FDCPA.”
Pet. App. 17; id. at 27 (district court: Petitioner
alleged Defendants served the lawsuit “at the same
address as the first collection suit, even though the
 9

Defendants knew this was no longer [his]

residence.”).8
Klemm moved to dismiss Petitioner’s amended
complaint on the basis that it was untimely.9 On
March 15, 2016, the District Court issued an opinion
finding that “the discovery rule does not apply” to
the FDCPA, and therefore that Petitioner’s claim
was untimely because “not filed within the one-year
statute of limitations found in the FDCPA.”10 Pet.
App. 26.11

8 The false Affidavit of Service filed by Respondents, which

verified that the “Adult in charge of Defendant(s) residence”
had been served, made it possible for a default judgment to be
obtained without Petitioner’s knowledge.
9 Defendants also sought dismissal on the basis of the Rooker-

Feldman doctrine. Pet. App. 18. That ground for dismissal

was rejected by the district court, id. at 21, and was not
appealed. Defendants did not seek dismissal on the ground
that a violation of the FDCPA had not occurred. Defendants
also moved, in the alternative, under Federal Rule of Civil
Procedure 56(a), but the district court ruled instead on the
basis of Federal Rule of Civil Procedure 12.
10 The District Court contemporaneously issued an order

granting Klemm’s motion to dismiss with prejudice. See Pet.

App. 29.
11 The district court rejected Petitioner’s invocation of
“equitable tolling” on the ground that, “even though technically
available,” it was “no more than a second attempt to apply the
discovery rule to his FDCPA claim.” Pet. App. 29. The
relationship of the discovery rule to “equitable tolling” (or other
doctrines that may abate running of a limitations period, such
as “equitable estoppel) is hardly self-evident. While “it is, in
effect, a rule of interpretation,” Petrella v. Metro-Goldwyn-
Mayer, Inc., 572 U.S. 663, 681 (2014), equitable tolling does not
appear to have a settled definition or parameters. In Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005), the Court observed:
“Generally, a litigant seeking equitable tolling bears the
 10

Petitioner timely appealed to the Third Circuit,

and the appeal was briefed and then initially argued
before a three-judge panel on January 18, 2017. Pet.
App. 1. On September 7, 2017, before the panel
released an opinion, the Court of Appeals sua sponte
ordered rehearing en banc. Id. On May 15, 2018,
the en banc Third Circuit affirmed the District
Court’s dismissal of Petitioner’s FDCPA claim,
holding that the statute’s “one-year limitations
period begins to run when a would-be defendant
violates the FDCPA, not when a potential plaintiff
discovers or should have discovered the violation.”
Pet. App. 6.

burden of establishing two elements: (1) that he has been

pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Cf. Irwin v. Department of
Veterans Affairs, 498 U.S. 89 (1990) (extensively discussing
“equitable tolling” without defining it); see also CTS Corp. v.
Waldburger, 573 U.S. 1, 9 (2014) (“[E]quitable tolling [is] a
doctrine that ‘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.’”) (quoting Lozano v. Montoya Alvarez,
572 U.S. 1, 10 (2014)). The primary definition of equitable
tolling in Black’s Law Dictionary sounds strikingly like the
discovery rule: “The doctrine that the statute of limitations will
not bar a claim if the plaintiff, despite diligent efforts, did not
discovery the injury until after the limitations period had
expired, in which case the statute is suspended or tolled until
the plaintiff discovers the injury.” See Equitable Tolling,
Black’s Law Dictionary 656 (10th ed. 2014) (emphasis added).
 11

SUMMARY OF ARGUMENT
Congress enacted the FDCPA more than four
decades ago to “eliminate” widespread misconduct by
third-party debt collectors—misconduct that was
hurting consumers, and disadvantaging scrupulous
debt collectors who suffered competitively when
refraining from such tactics.
In addition to generally prohibiting false,
deceptive, misleading, unfair and unconscionable
conduct by third-party debt collectors, the FDCPA
specifically proscribes a wide range of violations
which can or are likely to occur without immediate
awareness by the victim. See infra Section II.D.2.
The existence of victims “blamelessly ignorant” of
FDCPA violations giving rise to liability under the
statute is not an anomaly. The FTC and CFPB
report thousands of complaints about debt collector
actions which, by their nature, might not come to the
attention of the prospective plaintiff until months or
years after they transpire. For example, of the
approximately 600,000 complaints the FTC received
about debt collection activities between 2009 and
2013, nearly half concerned actions by debt collectors
that might occur without the consumer’s knowledge
at the time of the violation itself.12 And it stands to

12 See 2010-14 CFPB ANN. FDCPA REPS (129,622 complaints

about debt collectors who failed to provide written notice of a
debt owed; 92,871 complaints about debt collectors who failed
to identify themselves as debt collectors; 57,834 complaints
about debt collectors who revealed the existence or amount of a
debt to a third party).
 12

reason that many more such violations occur but are

not reported to the FTC or CFPB.13
Petitioner is a quintessential “blamelessly
ignorant” plaintiff—unaware for a time of the
violation giving rise to his potential cause of action
because of deceptive, misleading or fraudulent
conduct by the prospective defendant. Here, the
default judgment obtained by Respondents was
made possible by the filing of a fraudulent Affidavit
of Service. See Fraud, Black’s Law Dictionary 775
(10th ed. 2014) (defining “fraud” as “[a] knowing
misrepresentation or knowing concealment of a
material fact” or “[a] reckless representation made
without justified belief in its truth to induce another
person to act”).14

13 In 2016, several debt collectors paid $60 million to settle

allegations they had operated a “default judgment mill.”
According to the complaint, the defendants would
systematically generate summonses and complaints directed to
debtors, intentionally fail to serve them, and submit false
proofs of service to the courts in order to collect default
judgments. Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70,
76 (2d Cir. 2015); Sykes v. Harris, No. 09 CIV. 8486 (DC), 2016
WL 3030156 (S.D.N.Y. May 24, 2016). The defendants
obtained nearly 50,000 default judgments, creating more than
$1 billion in liabilities for unsuspecting debtors. 780 F.3d at
70; 2016 WL 3030156 at *1.
14 Petitioner’s amended complaint specifically challenged “the

nature of the service of the collection lawsuit” which

“purposefully ensured that plaintiff could never properly be
served . . . .” Amended Complaint at ¶ 14, Rotkiske v. Klemm,
No. 15-3638 (Oct. 19, 2015 E.D. Pa.), ECF No. 15. The willful
failure to properly serve a complaint but nevertheless file proof
of service is common enough to have its own name in the debt
collection industry—“sewer service.” See Terry Carter,
Payback: Lawyers on Both Sides of Collection are Feeling Debt’s
Sting, 96 A.B.A. J. 40, 45 (2010).
 13

This case concerns the application of section

813(d)’s one-year limitations period to claims
brought by the victim of an FDCPA violation who
was blamelessly ignorant of the violation until more
than one year after it occurred. The specific question
presented to the Court is whether the “discovery
rule”—an equitable doctrine, which either delays the
commencement of, or suspends the running of, the
applicable statute of limitations—applies to the
FDCPA. It does.
The text of section 813(d) makes clear it is not a
statute of repose, which would preclude the
application of equitable doctrines to abate the
running of the limitations period. Respondents seem
to have conceded as much, arguing that the petition
for certiorari should have been denied because of the
availability of equitable tolling for an FDCPA claim.
See Brief in Opposition to the Petition 8-11.
What the text of section 813(d) does not make
clear, however, is whether an FDCPA claim is time-
barred even if brought within one year of when the
violation was or could have been discovered. The
answer to that question lies elsewhere—in the
common law reflected in, and developed by, this
Court’s decisions, and in the remainder of the
FDCPA itself, whose purpose and structure strongly
suggest the discovery rule applies.
Congress legislates against a background of
common law principles. In the decades preceding
enactment of the FDCPA, this Court issued several
decisions that would have reasonably led Congress
to conclude that a private civil suit like
Petitioner’s—delayed only by his blameless
ignorance of the facts giving rise to his claim and by
 14

defendants’ own fraudulent or concealing actions,

but brought within one year of learning those facts—
would not be dismissed by a court as untimely.
Congress drafted the FDCPA aware of those
decisions, and nothing in the statute suggests it did
not intend for them to apply to cases brought
challenging violations of the statute. To the
contrary, consideration of the purposes and structure
of the FDCPA strongly suggest that the best reading
of the statute is that it permits Petitioner’s lawsuit
to proceed notwithstanding that it was not filed
within one year of the violation about which he was
blamelessly ignorant.
ARGUMENT
I. The “Discovery Rule”
The discovery rule is “essentially one of equity,”
which “allows the cause of action to accrue when the
litigant first knows or with due diligence should
know the facts that will form the basis for an action.”
2 Calvin W. Corman, Limitation of Actions § 11.1.1,
at 134-35 (1991); see also Discovery Rule, Black’s
Law Dictionary 565 (10th ed. 2014) (“The rule that a
limitations period does not begin to run until the
plaintiff discovers (or reasonably should have
discovered) the injury giving rise to the claim. The
discovery rule usu[ally] applies to injuries that are
inherently hard to detect . . . .”); 54 C.J.S.
Limitations of Actions § 136 (Mar. 2019 update)
(Under the discovery rule, “a cause of action does not
accrue until a claimant knows or should reasonably
know of the existence of his or her claim.”).
“The [discovery] rule avoids dismissing a suit on
grounds of limitation when a plaintiff is blamelessly
 15

ignorant of his or her cause of action . . . .” Id.

(footnote omitted); see also Kyle Graham, The
Continuing Violation Doctrine, 43 Gonzaga L. Rev.
271, 278 (2008) (“The discovery rule” concerns “the
plaintiff who remains excusably ignorant of a claim,”
and when applicable “the statute of limitations on a
claim begins to run only when the plaintiff knew or
should have known of the essential facts underlying
the cause of action.”15
* * *
The question before the Court is whether, under
the best reading of the FDCPA, Congress intended to
permit or foreclose a lawsuit like Petitioner’s: one
filed within one year of his learning about
Respondents’ violation of the statute, which could
not have been filed within one year of the violation
due to Petitioner’s “blameless ignorance.”16

15 “The often confusing distinction between accrual and tolling

of statutes of limitations is at play in those cases discussing
the discovery rule; the rule has been characterized as
performing both functions.” 4 Charles Alan Wright & Arthur
R. Miller, Fed. Prac. & Proc. § 1056 (4th ed. Apr. 2019 update).
It does not appear the distinction matters for purposes of this
case, but Petitioner submits the better view is that the
discovery rule precludes a limitations clock from starting to run
at all, rather than “tolling” or pausing an already-running
clock. Cf. Merck & Co., Inc. v. Reynolds, 559 U.S. 633, 644
(2010) (“[T]he ‘discovery rule’ [is] a doctrine that delays accrual
of a cause of action until the plaintiff has ‘discovered’ it”). For
that reason, this brief has removed the word “toll” from the
Question Presented as it appeared in the Petition for Writ of
Certiorari.
16 Respect for the distinct roles assigned to Congress and the

federal courts by the Constitution warrants a statute-specific

determination of whether Congress intended for the discovery
rule to apply. Cf. California Pub. Emps.’ Ret. Sys. v. ANZ Secs.,
 16

II. Under the Best Reading of the FDCPA,

Petitioner’s Lawsuit Was Not Time-Barred
and Should Not Have Been Dismissed on
That Basis
Applying traditional tools of statutory
interpretation, the best reading of the FDCPA is that
Congress intended to permit a lawsuit like
Petitioner’s, and that the courts below erred in
concluding otherwise.
A. The FDCPA’s Text Does Not Settle
Whether the Discovery Rule Applies to
Private Civil Lawsuits Under The
Statute
When interpreting a federal statute, this Court
has made clear that its responsibility is to discern
Congress’s intent, and then honor that intent by
employing the best reading of the statute consistent
with it. New Prime Inc. v. Oliveira, 139 S. Ct. 532,
543 (2019).
The Court typically begins its inquiry with the
text of the statute at issue.
Here, the text of section 813(d) makes one thing
abundantly clear: it is not a statute of repose, which
would preclude the application of equitable doctrines
to abate the running of the limitations period.
“[S]tatutory time bars can be divided into two
categories: statutes of limitations and statutes of

Inc., 137 S. Ct. 2042, 2050 (2017) (“[W]hether a tolling rule

applies to a given statutory time bar is one ‘of statutory
intent.’”). Petitioner is not advocating that the Court adopt a
generally applicable discovery rule.
 17

repose. ANZ Secs., 137 S. Ct. at 2049. Statutes of

limitations “typically permit courts to toll the
limitations period in light of special equitable
considerations.” John R. Sand & Gravel Co. v.
United States, 552 U.S. 130, 133 (2008); see also
United States v. Brockamp, 519 U.S. 347, 350 (1997)
(“Ordinarily limitations statutes use fairly simple
language, which one can plausibly read as
containing an implied ‘equitable tolling’ exception.”).
“In contrast, statutes of repose are enacted to give
more explicit and certain protection to defendants.
These statutes ‘effect a legislative judgment that a
defendant should be free from liability after the
legislatively determined period of time.’” ANZ Sec.,
137 S. Ct. at 2049 (quoting CTS Corp., 573 U.S. at
9).
In weighing whether Congress intended to
create a statute of repose, the Court has looked for a
“two-sentence structure,” 137 S. Ct. at 2049, pairing
a shorter statute of limitations with a “corollary”
unqualified termination of liability. Petrella v.
Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 697
(2014); see, e.g., 21 U.S.C. § 335b(b)(3)(B) (“No action
may be initiated under this section . . . more than 6
years after the date when facts material to the act
are known or reasonably should have been known by
the Secretary but in no event more than 10 years
after the date the act took place.”); 28 U.S.C. § 1658
(suit “may be brought not later than the earlier of
(1) 2 years after the discovery of the facts
constituting the violation; or (2) 5 years after such
violation.”); see also Lampf, Pleva, Lipkind, Prupis &
Petigrow v. Gilbertson, 501 U.S. 350, 363 (1991)
(“The 3-year limit is a period of repose inconsistent
with tolling.”).
 18

The FDCPA’s time limit for filing suit was not

drafted as a statute of repose, to which equitable or
common law exceptions may not apply. See CTS
Corp., 573 U.S. at 9; China Agritech, Inc. v. Resh,
138 S. Ct. 1800, 1809 (2018) (“Statutes of repose . . .
are not ubiquitous. Most statutory schemes provide
for a single limitation period without any outer
limit . . . .”) (internal citation omitted).
Respondents appear to concede that the text of
section 813(d) permits the application of equitable
principles to a lawsuit brought under the FDCPA
more than one year after the violation occurred,
having argued that the petition for certiorari should
have been denied because of the availability of
equitable tolling for an FDCPA claim. See Brief in
Opposition to the Petition 8-11.17
The Third Circuit likewise reads the text of
section 813(d) as permitting the application of
equitable principles to the FDCPA, finding that
district courts have “discretion . . . to avoid patent
unfairness” when applying the Act’s limitations
period. Pet. App. 10; id. at 13 (“we have already

17 Respondents have taken the position throughout this case

that the text of the FDCPA does not foreclose the application of
equitable tolling doctrines. Reply Brief in Support of
Defendants’ Motion to Dismiss the Complaint at 4, Rotkiske v.
Klemm, No. 15-3638 (E.D. Pa. Nov. 17, 2015), ECF No. 18
(“Defendants are not claiming that equitable tolling cannot be
used on an FDCPA claim . , , ,”); Appellees’ Supplemental Brief,
Rotkiske v. Klemm, No. 16-1668 (3d Cir. Dec. 21, 2017)
(consumers “have a handful of tolling doctrines at their
disposal for use in FDCPA cases—tolling doctrines such as
fraudulent concealment.”).
 19

recognized the availability of equitable tolling for

civil suits alleging an FDCPA violation”).18
Because the text of section 813(d) does not
manifest congressional intent to foreclose judicial
application of the discovery rule, discerning
legislative intent about that issue requires other
interpretative tools.19
B. Congress Is Presumed to Legislate
Against the Background of Common
Law Principles and Aware of This
Court’s Decisions
“Congress is understood to legislate against a
background of common-law adjudicatory principles.”
Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S.
104, 108 (1991); see also SCA Hygiene Prods.
Aktiebolag v. First Quality Baby Prods., LLC, 137 S.
Ct. 954, 966 (2017) (discussing “presumption that
Congress legislates against the background of
general common-law principles”); Smith v. United
States, 568 U.S. 106, 112 (2013) (faced with the
legislature’s silence about the applicable burden of

18 The Court of Appeals did not explain how it reconciles

permitting equitable tolling with its conclusion that the text of
section 813(d) categorically forecloses application of the
discovery rule to claims brought by blamelessly ignorant
plaintiffs.
19 The Court of Appeals recognized that, in general, it should

“begin[] with the statutory text and then proceed[] to consider

its structure and context.” Pet. App. 12. In this case, however,
it stopped after considering a few words in section 813(d)—
refusing to consider “historical or equitable” reasons to adopt a
discovery rule. Id. at 13.
 20

proof, concluding “we presume that Congress

intended to preserve the common-law rule”).
Thus, “[w]hen [Congress] adopts a statute,
related judge-made law (common law) is presumed
to remain in force and work in conjunction with the
new statute absent a clear indication otherwise.”
Larry M. Eig, Congressional Research Serv.,
Statutory Interpretation: General Principles and
Recent Trends 20 (2014); see also Meyer v. Holley,
537 U.S. 280, 286 (2003) (Congress’s silence permits
inference that it intended to apply ordinary
background tort principles).
This important presumption often works in
tandem with another: “[W]e presume that Congress
expects its statutes to be read in conformity with
this Court’s precedents.” United States v. Wells, 519
U.S. 482, 495 (1997); see also Merck, 559 U.S. at 648
(“We normally assume that, when Congress enacts
statutes, it is aware of relevant judicial precedent.”);
Exploration Co. v. United States, 247 U.S. 435, 449
(1918) (“When Congress passed the act in question
the rule of Bailey v. Glover was the established
doctrine of this court. It was presumably enacted
with the ruling of that case in mind.”).
As with all federal statutes, Congress is
presumed to have drafted and enacted the FDCPA
having in mind the common law and this Court’s
decisions. Cf. ANZ Secs., 137 S. Ct. at 2050 (“Tolling
rules . . . often apply to statutes of limitations based
on the presumption that Congress ‘legislate[s]
against a background of common-law adjudicatory
principles.”) (quoting Lozano v. Montoya Alvarez, 572
U.S. 1, 10 (2014)).
 21

C. Congress Reasonably Would Have

Believed Courts Would Apply the
Discovery Rule to the FDCPA In Light
of This Court’s Decisions Over the
Preceding Decades
Congress began hearings on the legislation that
became the FDCPA in April 1976, and ultimately
passed the statute in September 1977.20 In the
preceding decades this Court issued several
decisions that would have reasonably led Congress
to conclude that a civil suit like Petitioner’s—
delayed only by his blameless ignorance of the facts
giving rise to his claim and by defendants’ own
fraudulent or concealing actions, but brought within
one year of learning those facts—would not be
dismissed by a court as untimely.
* * *
In Bailey v. Glover, 88 U.S. 342 (1874), a case
under the Bankruptcy Act, while acknowledging the
importance of a limitations period and the objective
of “speedy disposition of the bankrupt’s assets,” id.
at 346, the Court also recognized the “very often
applied” principle that “in mitigation of the strict
letter of general statutes of limitation . . . when the
object of the suit is to obtain relief against a fraud,
the bar of the statute does not commence to run until
the fraud is discovered or becomes known to the

20 The Debt Collection Practices Act: Hearings Before the

Subcommittee on Consumer Affairs of the House Banking,
Currency and Housing Committee on H.R. 11969, 94th Cong.
(1976). President Carter signed the FDCPA on September 20,
1977. 13 Weekly Comp. Pres. Doc. 1382-83 (Sept. 20, 1977).
 22

party injured by it.” Id. at 347. In rejecting a

limitations argument, the Court further observed:
In suits in equity where relief is sought on
the ground of fraud, the authorities are
without conflict in support of the doctrine
that where the ignorance of the fraud has
been produced by the affirmative acts of the
guilty party in concealing the facts from the
other, the statute will not bar relief provided
suit is brought within proper time after the
discovery of the fraud. We also think that in
suits in equity the decided weight of
authority is in favor of the proposition that
where the party injured by the fraud
remains in ignorance of it without any fault
or want of diligence or care on his part, the
bar of the statute does not begin to run until
the fraud is discovered, though there be no
special circumstances or efforts on the part of
the party committing the fraud to conceal it
from the knowledge of the other party.
Id. at 347-48.21

21 “Since Bailey v. Glover the Supreme Court has adopted the

position that in cases involving elements of fraud neither a
statute of limitations nor the equitable doctrine of laches can
begin to run until the fraud is or should have been discovered.”
Corman, supra, § 11.5.4, at 192-93; see also 2 Horace G. Wood,
A Treatise on the Limitation of Actions at Law and in Equity
§ 275, at 704 (1893) (“[I]t is an established rule of equity that
where relief is asked on the ground of actual fraud, especially if
the fraud has been concealed, that time will not run in favor of
the defendant until the discovery of the fraud, or until, with
reasonable diligence, it might have been discovered.”); id. at
707 (“It is an inflexible rule in those courts, when applying the
 23

In Exploration Co., 247 U.S. at 445, the Court

addressed a limitations defense to a lawsuit alleging
land patents were procured by fraud.
Notwithstanding that the statute at issue provided
lawsuits “shall only be brought within six years after
the date of the issuance of such patents,” the Court
rejected the limitations argument, explaining: “We
think the true rule is established in federal
jurisprudence by the decision of this court in Bailey
v. Glover.” Exploration, 247 U.S. at 446. After
noting that in the statute at issue “there was no
provision that the cause of action should not be
deemed to have accrued until the discovery of the
fraud,” referring to Bailey, the Court recounted:
“But it was held that for the purpose of such statutes
the cause of action did not accrue until the discovery
of the fraud; that such was the undisputed doctrine
of courts of equity, and that the weight of authority,
English and American, applied the same rule to
actions at law.” Id. at 447. The Court then added:
“When Congress passed the act in question the rule
of Bailey v. Glover was the established doctrine of
this court. It was presumably enacted with the
ruling of that case in mind.” Id. at 449. Therefore,
in light of the “now almost universal” rule that
“statutes of limitations to set aside fraudulent
transactions shall not begin to run until the
discovery of the fraud,” the Court rejected the
contention that the lawsuit filed after the expiration

general limitation prescribed in cases like this, to regard the

cause of action as having accrued at the time the fraud was or
should have been discovered . . . .”).
 24

of the limitations period was foreclosed. Id. (“We

cannot believe that Congress intended to give
immunity to those who for the period named in the
statute might be able to conceal their fraudulent
action from the knowledge of the agents of the
government.”).
In Holmberg v. Armbrecht, 327 U.S. 392 (1946),
the Court considered a limitations challenge to a
lawsuit under the Federal Farm Loan Act. Invoking
Bailey and Exploration, the Court rejected the
contention the lawsuit was too late: “this Court long
ago adopted as its own the old chancery rule that
where a plaintiff has been injured by fraud and
‘remains in ignorance of it without any fault or want
of diligence or care on his part, the bar of the statute
does not begin to run until the fraud is discovered,
though there be no special circumstances or efforts
on the part of the party committing the fraud to
conceal it from the knowledge of the other party.’”
Id. at 397 (quoting Bailey, 88 U.S. at 348). The
Court elaborated, explaining unequivocally: “This
equitable doctrine is read into every federal statute
of limitation”—even those with “an explicit statute of
limitation for bringing suit.” Id. (emphasis added).22

22 The doctrine set out in Bailey, Exploration and Holmberg is

applied without imposing rigid limitations on the concept of
“fraud” for purposes of evaluating defendant’s action which
impeded discovery of the misconduct. For example, in
Holmberg, the “fraudulent conduct” that “prevented the
plaintiff from being diligent” was concealing stock ownership
under the name of another person. Holmberg, 327 U.S. at 393,
396. See also Wood, supra, § 276 at 708 (“The provision that if
a person liable to an action shall conceal the fact from the
knowledge of the person entitled thereto, the action may be
 25

Three years later, the Court decided Urie v.

Thompson, 337 U.S. 163 (1949), which concerned a
limitations challenge to a lawsuit under the Federal
Employers’ Liability Act. Without expressly citing
Bailey, Exploration or Holmberg, the Court ruled
consistent with the doctrine reinforced by those
decisions, rejecting the notion that Congress
intended to impose a time bar on a plaintiff whose
suit was delayed only by “blameless ignorance.” Id.
at 170. Barring such a suit, the Court concluded,
could not be “reconciled with the traditional
purposes of statutes of limitations, which
conventionally require the assertion of claims within
a specified period of time after notice of the invasion
of legal rights.” Id. (emphasis added).23

commenced at any time within the period of limitation after the

discovery of the cause of action, applies to causes of action for
fraud, as well as to other causes of action . . . .”); Mary S.
Humes, RICO and a Uniform Rule of Accrual, 99 Yale L. J.
1399, 1407 & n.54 (1990) (citing Holmberg to illustrate
“expansion of the [discovery] rule to non-fraud Federal
actions”); id. at 1418 (“Now the discovery rule governs most
Federally created causes of action, regardless of whether these
actions involve fraud.”); Corman, supra, § 8.1, at 2-3
(“Doubtless, the expanded application of the discovery rule has
been a leading development in contemporary adjudication of
limitations actions.”); 54 C.J.S. Limitations of Actions § 136
(Mar. 2019 update) (“Federal courts generally apply a discovery
accrual rule when a statute is silent on the issue.”). In TRW
Inc. v. Andrews, 534 U.S. 19, 27 (2001), this Court described
Holmberg’s rule as applicable to “fraud or concealment.”
(emphasis added). Later, in Merck, the Court observed that
“both state and federal courts have applied forms of the
‘discovery rule’ to claims other than fraud.” 559 U.S. at 645.
23 By 1950, commentators recognized “judicial reluctance to
attribute to Congress an intent to require the courts to depart
 26

In Glus v. Brooklyn Eastern District Terminal,

359 U.S. 231, 231 (1959), the Court rejected the
argument that a claim under the Federal Employers’
Liability Act not filed “within three years from the
day the cause of action accrued” was too late. After
the lower courts had dismissed the lawsuit of a
plaintiff who delayed filing because the defendants
represented that the plaintiff had seven years to sue
(instead of three), this Court revered, explaining “we
need look no further than the maxim that no man
may take advantage of his own wrong.” Id. at 232.
“Deeply rooted in our jurisprudence this principle
has been applied in many diverse classes of cases by
both law and equity courts and has frequently been
employed to bar inequitable reliance on statutes of
limitations.” Id. at 232-33 (footnote omitted).
Finding nothing in the language or history of the
Federal Employers Liability Act “to indicate that
this principle of law, older than the country itself,
was not to apply in suits arising under that statute,”
the Court held that the petitioner’s lawsuit was
timely. Id. at 234-35 (footnotes omitted).
If Congress had enacted the FDCPA after
hearing no more from the Court after Bailey,
Exploration, Holmberg, Urie and Glus, it would have
been reasonable for Congress to expect that courts
would apply the discovery rule to claims of a
blamelessly ignorant plaintiff alleging violation of

from the traditional equity practice of refusing to bar a plaintiff

who has had no opportunity to discover the wrong.”
Developments in the Law—Statutes of Limitations, 63 Harv. L.
Rev. 1177, 1267 (1950) (footnote omitted).
 27

the Act absent an express indication by the

legislature that they should not.
But not long before Congress began drafting the
FDCPA, the Court decided one of its most significant
statute of limitations decisions: American Pipe &
Construction Co. v. Utah, 414 U.S. 538 (1974). In
American Pipe, the Court held that the
commencement of a putative class action “tolls the
running of the statute for all purported members of
the class,” despite the four-year time limit specified
in the statute at issue. Id. at 553. In explaining its
decision, the Court pointedly observed that, when a
plaintiff has been unable to sue because of the
defendant’s actions, “this Court has not hesitated to
find the statutory period tolled or suspended.” Id. at
559. The Court simultaneously also explained: “the
mere fact that a federal statute providing for
substantive liability also sets a time limitation upon
the institution of suit does not restrict the power of
the federal courts to hold that the statute of
limitations is tolled under certain circumstances not
inconsistent with the legislative purpose.” Id.
 28

* * *
These cases form the backdrop against which the
FDCPA was enacted.24 Taken together, 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.25

24 In Merck, the Court identified both Bailey and Holmberg in

explaining the origins of the discovery rule. 559 U.S. at 644-45;
see also Gabelli v. SEC, 568 U.S. 442, 449 (2013) (citing Bailey
and Holmberg, and noting the rule’s “centuries-old roots”).
25 In Rotella v. Wood, 528 U.S. 549 (2000), the Court observed

that “the traditional federal accrual rule of injury discovery” is

“generally appl[ied] . . . when a statute is silent on the issue.”
Id. at 555. The following year, in TRW, the Court noted its
observation from Rotella, but remarked: “we have not adopted
that position as our own.” 534 U.S. at 27. In the decision
below, the Third Circuit acknowledged it was departing from
that court’s “earlier practice of presuming that federal statutes
of limitations include an implied discovery rule.” Pet. App. 12;
see also id. at 22 (district court: “Absent a contrary directive
from Congress, the discovery rule applies to federal statutes of
limitations.”). The Court of Appeals attributed its shift to
TRW. Id. at 12. But when Congress enacted the FDCPA in
1977, it almost certainly operated under the same view as the
Third Circuit did before TRW—that courts regularly employed
a discovery rule to the claims of blamelessly ignorant plaintiffs.
Even if it is arguable that after TRW it would have been less
reasonable for Congress to expect courts to apply the discovery
rule to a statute absent express direction in the legislation, that
has no bearing here given the FDCPA was enacted long before
TRW. As for TRW itself, it rejected the Ninth Circuit’s holding
that “a generally applied discovery rule” governs claims under
the Fair Credit Report Act, finding the particular text and
structure of the Act “evidence Congress’ intent to preclude
judicial implication of a discovery rule.” 534 U.S. at 28
(“Congress implicitly excluded a general discovery rule by
explicitly including a more limited one.”). But Petitioner here
is not advocating for a generally applicable discovery rule like
 29

D. The FDCPA’s Purposes and Structure

Suggest the Discovery Rule Applies to
Private Civil Lawsuits Under The
Statute
“It is a fundamental canon of statutory
construction that the words of a statute must be read
in their context and with a view to their place in the
overall statutory scheme.” Davis v. Michigan Dep’t
of Treasury, 489 U.S. 803, 809 (1989). The Court’s
“duty, after all, is ‘to construe statutes, not isolated
provisions.’” King v. Burwell, 135 S. Ct. 2480, 2489
(2015) (quoting Graham Cty. Soil & Water
Conservation Dist. v. United States ex rel. Wilson,
559 U.S. 280, 290 (2010)).
Confronted with “abundant evidence of the use of
abusive, deceptive, and unfair debt collection
practices by many debt collectors,” and finding that
then-existing laws and procedures were “inadequate
to protect consumers,” 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.” § 1692(a), (b), (e). “Downright
deceit” was among the misconduct that “drew
Congress’s eye to the debt collection industry,”
leading to enactment of the FDCPA. Henson, 137 S.
Ct. at 1720.

the Ninth Circuit’s version rejected in TRW, and the FDCPA

differs materially from the Fair Credit Report Act.
 30

1. Congress Designed the FDCPA to

Incentivize Private Civil Lawsuits as
the Primary Means For Achieving the
Statute’s Objectives
This Court has previously recognized the
centrality of private suits to achieving the FDCPA’s
objectives, noting its “calibrated scheme of statutory
incentives to encourage self-enforcement.” Jerman,
559 U.S. at 603; see also 123 CONG. REC. H8996
(daily ed. Sept. 8, 1977) (“the chief means of
obtaining compliance with the act [is] . . . the civil
liability section, that is, by enabling the consumer to
sue whenever there has been a violation of the act.”)
(statement of Rep. Annunzio, primary sponsor).
These statutory incentives include the recovery of
“any actual damage” suffered from the violation, 15
U.S.C. § 1692k(a)(1), and the discretionary award of
statutory damages, subject to certain limits.
§ 1692k(a)(2)(A). Congress also provided for the
award of attorney’s fees and costs to prevailing
plaintiffs. § 1692k(a)(3).
In contrast with the robust private enforcement
scheme created by the FDCPA, the FTC and CFPB
historically bring only a handful of enforcement
actions each year. For example, during 2018 the
CFPB initiated one enforcement action, and the FTC
initiated two. 2019 CFPB ANN. FDCPA REP. 24, 29,
32. Each agency initiated an average of fewer than
seven enforcement actions annually in recent years.
See 2015-19 CFPB ANN. FDCPA REPS.
 31

2. Congress Structured the FDCPA to

Include Among Its Targets Numerous
Specifically Prohibited Actions About
Which the Victim Could or Likely
Would Be Unaware at the Time of the
Violation
In addition to generally prohibiting false,
deceptive, misleading, unfair and unconscionable
conduct by third-party debt collectors, the FDCPA
specifically proscribes a wide range of actions about
which the victim could or likely would be unaware at
the time of the violation—as occurred here.26
For example, section 804 requires or proscribes
specific actions by “[a]ny debt collector
communicating with any person other than the
consumer for the purpose of acquiring location
information about the consumer.” 15 U.S.C. § 1692b
(emphasis added). Because a violation of section 804
26 There is a consensus among the federal courts of appeals
that “[i]n evaluating whether a particular debt-collection
practice violates the Act,” they should examine the practice
from the perspective of the “least sophisticated debtor.” Levins
v. Healthcare Revenue Recovery Grp. LLC, 902 F.3d 274, 280
(3d Cir. 2018). See also Pollard v. Law Office of Mandy L.
Spaulding, 766 F.3d 98, 103 & n.4 (1st Cir. 2014); Kolbasyuk v.
Capital Mgmt. Servs., LP, 918 F.3d 236, 239 (2d Cir. 2019);
Chaudhry v. Gallerizzo, 174 F.3d 394, 408 (4th Cir. 1999);
Gonzalez v. Kay, 577 F.3d 600, 607 (5th Cir. 2009); Macy v. GC
Servs. Ltd. P’ship, 897 F.3d 747, 758 n.8 (6th Cir. 2018);
O’Boyle v. Real Time Resolutions, Inc., 910 F.3d 338, 344 (7th
Cir. 2018) (“unsophisticated debtor” standard); Scheffler v.
Gurstel Chargo, P.A., 902 F.3d 757, 761-62 (8th Cir. 2018);
Gonzales v. Arrow Fin. Servs., LLC, 660 F.3d 1055, 1061 (9th
Cir. 2011); Fouts v. Express Recovery Servs., Inc., 602 F. App’x
417, 421 (10th Cir. 2015); LeBlanc v. Unifund CCR
Partners, 601 F.3d 1185, 1194 (11th Cir. 2010).
 32

necessarily involves communication with someone

other than the consumer, there will necessarily be a
delay—potentially lengthy—between the violation
and its discovery by the prospective plaintiff.
Section 805 provides “a debt collector may not
communicate with a consumer in connection with
the collection of any debt” under certain
circumstances, but several of those circumstances
turn on information not necessarily available to the
consumer. 15 U.S.C. § 1692c(a). For instance, debt
collector communication is proscribed:
(2) if the debt collector knows the consumer
is represented by an attorney with respect to
such debt and has knowledge of, or can
readily ascertain, such attorney’s name
and address, unless the attorney fails to
respond within a reasonable period of
time to a communication from the debt
collector or unless the attorney consents
to direct communication with the
consumer; or
(3) at the consumer’s place of employment if
the debt collector knows or has reason to
know that the consumer’s employer
prohibits the consumer from receiving such
communication.
§ 1692c(a)(2)-(3). (emphasis added).
Another provision, section 805(b), governs debt
collector communication with third-parties in
connection with collection of a debt—generally
prohibiting them absent consent from the consumer,
subject to specified exceptions. But because
violations of this section arise based on
 33

communications with someone other than the

consumer, the prospective plaintiff is unlikely to be
aware of a violation at the time it occurs. Moreover,
awareness of a violation of this section may require
knowledge of subsidiary facts not immediately
available to the consumer—such as whether the
communication was made with “the express
permission of a court of competent jurisdiction, or as
reasonably necessary to effectuate a postjudgment
judicial remedy.” 15 U.S.C. § 1692c(b).
Section 806 generally provides: “A debt collector
may not engage in any conduct the natural
consequence of which is to harass, oppress, or abuse
any person in connection with the collection of a
debt.” 15 U.S.C. § 1692d. Among the specific
conduct prohibited in that section are several
violations about which the consumer may not be
immediately aware, including:
(3) The publication of a list of consumers who
allegedly refuse to pay debts, except to a
consumer reporting agency or to persons
meeting the requirements of section 603(f) or
604(3) of this Act.
(4) The advertisement for sale of any debt to
coerce payment of the debt.
(5) Causing a telephone to ring or engaging
any person in telephone conversation
repeatedly or continuously with intent to
annoy, abuse, or harass any person at the
called number.
(6) Except as provided in section 804, the
placement of telephone calls without
meaningful disclosure of the caller’s identity.
 34

15 U.S.C. § 1692d(3)-(6); 91 Stat. at 877.

Section 807 provides “[a] debt collector may not
use any false, deceptive, or misleading
representation or means in connection with the
collection of any debt,” and then identifies sixteen
specific examples of such prohibited conduct.27 15
U.S.C. § 1692e. Any violation under this section is
capable of avoiding detection by the consumer
because it necessarily turns on the provision of
“false, deceptive, or misleading” representations, and
the consumer may be unaware or unable to ascertain
the accuracy of the information imparted by the debt
collector.
Section 808 provides “[a] debt collector may not
use unfair or unconscionable means to collect or
attempt to collect any debt.” 15 U.S.C. § 1692f. At
least two types of conduct specifically prohibited by
this section may escape detection by the consumer
for months or years:
(5) Causing charges to be made to any person
for communications by concealment of the
true purpose of the communication. Such
charges include, but are not limited to,
collect telephone calls and telegram fees.
(6) Taking or threatening to take any
nonjudicial action to effect dispossession or
disablement of property if . . .

27 With one exception, these sixteen categories are unchanged

since enactment of the FDCPA in 1977. In 1996, Congress
amended 15 U.S.C. § 1692e(11) to alter the requirements for
language debt collectors must use on legal pleadings. Pub. L.
104-208, § 2305, 110 Stat. 3009, 3425 (1996).
 35

(B) there is no present intention to take

possession of the property.
15 U.S.C. § 1692f(5)-(6) (emphasis added).
Section 812(a) provides: “It is unlawful to design,
compile, and furnish any form knowing that such
form would be used to create the false belief in a
consumer that a person other than the creditor of
such consumer is participating in the collection of or
in an attempt to collect a debt such consumer
allegedly owes such creditor, when in fact such
person is not so participating.” 15 U.S.C.
§ 1692j(a) (emphasis added). A violation of this
section could plausibly escape a consumer’s detection
because the consumer is unaware or unable to
ascertain whether such a person is actually
participating.
 36

3. Dismissing Lawsuits Filed By

“Blamelessly Ignorant” Plaintiffs After
Discovery of an FDCPA Violation as
Time-Barred Is Inconsistent With the
Purposes and Structure of the Statute,
and Would Yield “Odd” Results
Eschewed by The Court When
Considering Congressional Intent
As the foregoing makes clear, by its very terms
the FDCPA expressly prohibits numerous actions
and types of misconduct about which the consumer
may be unaware for months or years after they
occur. The existence of victims “blamelessly
ignorant” of FDCPA violations giving rise to liability
is a logical consequence of the statute’s provisions—
not an anomaly.28 And the existence of such
violations is corroborated by FTC and CFPB reports
of tens of thousands of complaints which, by their
nature, might not come to the attention of the
prospective plaintiff for a considerable period after
the violation. See supra p.11 & n.12.
The notion that Petitioner and other blamelessly
ignorant victims of FDCPA violations lost the right
to sue even before learning of violations giving rise
to their claims is precisely the kind of “odd”
interpretive result the Court avoids “in the absence
of any such indication in the statute.” Reiter v.

28 The Third Circuit erroneously presumed that “the conduct

proscribed by the FDCPA will usually be obvious to its victims,”
in attempting to distinguish this case from a prior decision in
which it applied the discovery rule to another statute to avoid
thwarting that statute’s “fundamental objective.” Pet. App. 9
n.3.
 37

Cooper, 507 U.S. 258, 267 (1993); see also Green v.

Brennan, 136 S. Ct. 1769, 1776 (2016) (quoting
Reiter); Corley v. United States, 556 U.S. 303, 317
(2009) (“the absurdities of literalism . . . show that
Congress could not have been writing in a literalistic
frame of mind”).29
Foreclosing lawsuits by blamelessly ignorant
plaintiffs would also reward wayward debt collectors
for concealing their misconduct from consumers as
the limitations period starts and runs out. Indeed, it
would have the perverse effect of encouraging debt
collectors to conceal their FDCPA violations, because
even a short delay in discovery, coupled with section
813(d)’s one-year limit, could be enough to shield the
debt collector from responsibility for his or her
actions.30 These results would be entirely at odds
with “[t]he history that led to the enactment” of the
statute, Jones v. R.R. Donnelley & Sons Co., 541 U.S.

29 It is hardly self-evident that the victim of an FDCPA

violation who is unaware of the conduct giving rise to liability
under the statute has Article III standing to sue before
becoming aware of the violation. If there is no standing prior to
discovery of the violation, the Third Circuit’s interpretation of
the FDCPA as foreclosing a claim before standing to assert it
even exists may raise constitutional questions that would be
avoided by application of the discovery rule.
30 Congress no doubt understood that a lawsuit cannot be filed

immediately upon discovery of an FDCPA violation. A

consumer suspecting a violation would have to search for, and
then consult with, an attorney, and then negotiate terms of
engagement (including a fee arrangement), before being able to
file a lawsuit. Debt collectors know this too—which means that
concealing their misconduct may result in successful evasion of
liability even if the violations are discovered by the consumer
prior to the one year anniversary of their occurrence.
 38

369, 380 (2004), and Congress’s aim to “eliminate”

abusive debt collection practices.
Such a rule also would have the counterintuitive
effect of treating identical FDCPA violations
differently, depending on the contingency of whether
the victim learns of the violation before or after the
one-year anniversary of its occurrence. But there is
nothing in the FDCPA to suggest that Congress
intended to enact a “sometimes-a-claim-sometimes-
not” approach. Green, 136 S. Ct. at 1779.
Also at risk is the FDCPA’s carefully “calibrated
scheme” of self-enforcement. Jerman, 559 U.S. at
603. By legislative design, and in practice, “the chief
means” of encouraging compliance with the FDCPA
are the private lawsuits authorized by the statute,
123 CONG. REC. H8996, incentivized by the
availability of actual and statutory damages, as well
as attorney’s fees and costs. Congress’s scheme
would be impaired by effectively rendering immune
broad swaths of misconduct. And that would not
only harm consumers, but it also would undermine
Congress’s express objective of leveling the
competitive playing field between law-abiding and
unscrupulous debt collectors.
Consideration of the FDCPA’s purposes and
structure strongly suggests that the best reading of
the statute is that it permits Petitioner’s lawsuit to
proceed notwithstanding that it was filed more than
one year after the violation about which he was
blamelessly ignorant.31 Cf. Honda v. Clark, 386 U.S.

31 On remand, once the case is beyond the pleading stage,

Petitioner would have to establish before the district court that
 39

484, 495, 500 (1967) (Based on “[a]n analysis of the

statutory scheme as devised by Congress” and
considering the “result most consistent with the
legislative purpose of Act,” the statute “itself
requires tolling the limitation period.”); Jerman, 559
U.S. at 618-19 (Kennedy, J., dissenting) (“When
construing a federal statute, courts should be
mindful of the effect of the interpretation on
congressional purposes explicit in the statutory
text.”).
E. Applying the Discovery Rule to the
FDCPA Is Fully Consistent With the
General Purposes Underlying Statutes
of Limitation
While statutes of limitation are “fundamental to
a well-ordered judicial system,” Board of Regents of
Univ. of State of New York v. Tomanio, 446 U.S. 478,
487 (1980), their utility derives from the purposes
they serve—primarily “preventing surprises” to
defendants, and “barring a plaintiff who has slept on
his rights.” Artis v. District of Columbia, 138 S. Ct.
594, 608 (2018) (quoting American Pipe, 414 U.S. at
554). Thus, as the Court has recognized, “[m]ost

he satisfies the factual predicate for application of the discovery

rule: that he did not know, and could not through reasonable
due diligence have known, the facts giving rise his FDCPA
claim. See Corman, supra § 11.1.1, at 134-35; Discovery Rule,
Black’s Law Dictionary 565 (10th ed. 2014) (“limitations period
does not begin to run until the plaintiff discovers (or reasonably
should have discovered) the injury giving rise to the claim”; 54
C.J.S. Limitations of Actions § 136 (Mar. 2019 update) (“cause
of action does not accrue until a claimant knows or should
reasonably know of the existence of his or her claim.”).
 40

statutes of limitations seek primarily to protect

defendants against stale or unduly delayed claims.”
John R. Sand & Gravel Co. v. United States, 552
U.S. 130, 133 (2008).
Where, like here, the only reason a lawsuit was
not filed before expiration of the limitation period is
“blameless ignorance” of the facts giving rise to the
claim as a result of actions by the defendant, none of
the primary purposes underlying statutes of
limitation are served by foreclosing the suits as time-
barred. Cf. Thomas M. Cooley, A Treatise on the
Constitutional Limitations 366 (1868) (“All statutes
of limitation . . . must proceed on the idea that a
party has had an opportunity to try his right in the
courts.”).
The consistency of abating the statute of
limitations here with the general purposes
underlying adopting limitations periods is another
factor militating in favor of concluding that Congress
intended to permit the abatement. See, e.g.,
American Pipe, 414 U.S. at 555 (“the tolling rule we
establish here is consistent . . . with the proper
function of the limitations statute”); Urie, 337 U.S.
at 170 (“Nor do we think those consequences can be
reconciled with the traditional purposes of statutes
of limitations, which conventionally require the
assertion of claims within a specified period of time
after notice of the invasion of legal rights.”); see also
Exploration, 247 U.S. at 449 (“We cannot believe
that Congress intended to give immunity to those
who for the period named in the statute might be
able to conceal their fraudulent action from the
knowledge of the agents of the government.”); Bay
Area Laundry & Dry Cleaning Pension Trust Fund v.
 41

Ferbar Corp. of Cal., Inc., 522 U.S. 192, 200 (1997)

(rejecting interpretation of statute under which “the
limitations period commences at a time when the
[plaintiff] could not yet file suit” as “inconsistent
with basic limitations principles”).
CONCLUSION
The Judgment of the Third Circuit should be
reversed, and the case remanded for further
proceedings.

May 2019 Respectfully submitted,

SCOTT E. GANT
Counsel of Record
SAMUEL S. UNGAR
BOIES SCHILLER FLEXNER LLP
1401 New York Avenue, NW
Washington, DC 20005
(202) 237-2727

Attorneys for Petitioner