SUPREME COURT OF THE UNITED STATES
_________________
No. 18–328
_________________
KEVIN C. ROTKISKE, PETITIONER
v. PAUL
KLEMM, et al.
on writ of certiorari to the united states
court of appeals for the third circuit
[December 10, 2019]
Justice Ginsburg, dissenting from the opinion
in part and from the judgment.
Generally, I agree with the Court, the
“discovery rule” does not apply to the one-year statute of
limitations contained in the Fair Debt Collection Practices Act
(FDCPA), 15 U. S. C. §1692k(d). That limitations period
ordinarily commences to run on the date “the violation occurs,”
ibid. See
TRW Inc. v.
Andrews,
534 U.S.
19, 28–33 (2001). But the ordinarily applicable time trigger
does not apply when fraud on the creditor’s part accounts for the
debtor’s failure to sue within one year of the creditor’s
violation.
Id., at 37 (Scalia, J., concurring in judgment).
See also
id., at 27 (majority opinion).
True, in the case at hand, debtor Rotkiske’s
FDCPA claim does not rest on any fraud inhering in the claim
creditor Klemm stated in his debt-collection suit. Rather, debtor
Rotkiske alleges that creditor Klemm commenced the debt-collection
suit too late. But Rotkiske was disarmed from asserting that
defense in Klemm’s suit, for he never received notice of the suit
and therefore had no opportunity to defend against it. For the same
reason, he was stopped
from raising an FDCPA claim challenging Klemm’s
suit within the one-year limitations period. By knowingly arranging
for service of the complaint against Rotkiske at an address where
Rotkiske no longer lived, and filing a false affidavit of service,
Rotkiske alleges, Klemm engaged in fraud. Such fraud, I would hold,
warrants application of the discovery rule to time Rotkiske’s FDCPA
suit from the date he learned of the default judgment against
him.
As today’s decision recognizes, see
ante,
at 6–7, 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 [of limitations] does not begin
to run until the fraud is discovered.”
Holmberg v.
Armbrecht,
327
U.S. 392, 397 (1946) (internal quotation marks omitted). See
also
Bailey v.
Glover, 21 Wall. 342, 347 (1875)
(“[W]hen 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 party injured by it.”).
Like the general discovery rule that lower courts have “appl[ied] .
. . when a statute is silent on the issue” of a claim’s accrual,
TRW Inc., 534 U. S., at 27 (quoting
Rotella v.
Wood,
528 U.S.
549, 555 (2000)), the fraud-based discovery rule operates as a
statutory presumption “read into every federal statute of
limitation,”
Holmberg, 327 U. S., at 397. This
circumscribed rule is distinct from the general discovery rule in
that it governs only “case[s] of fraud.”
Merck & Co. v.
Reynolds,
559 U.S.
633, 644 (2010). Unlike the general discovery rule, there is no
reason to believe the FDCPA displaced the fraud-based discovery
rule. The Court does not hold otherwise.
The fraud-based discovery rule has a thrust
different from equitable tolling.[
1]* “Equitable tolling” describes a doctrine that pauses,
or “tolls,” a statutory limitations period after it has commenced.
Lozano v.
Montoya Alvarez, 572 U.S. 1, 10 (2014). A
litigant qualifies for equitable tolling only if he establishes
“(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and prevented
timely filing.”
Menominee Tribe of Wis. v.
United
States, 577 U. S. __, __ (2016) (slip op., at 5) (internal
quotation marks omitted). For example, in
Burnett v.
New
York Central R. Co.,
380 U.S.
424 (1965), a plaintiff filed an action under the Federal
Employers’ Liability Act (FELA) in Ohio state court, alleging that
he sustained a workplace injury just under three years earlier.
Ibid. Several months later, the state court dismissed the
suit for improper venue under state law.
Id., at 425. The
plaintiff promptly brought an identical action in federal district
court. That court dismissed the action on the ground that the
FELA’s three-year statute of limitations began to run when the
plaintiff was injured and had expired while his state-court action
was pending.
Ibid. This Court reversed.
Id., at 436.
Yes, the limitations period began to run on the date of the
plaintiff’s injury. But, the Court held, the clock tolled during
the pendency of the plaintiff’s state-court suit.
Ibid.
Subtracting the time consumed by the state-court suit, the
plaintiff’s federal action was timely.
Id., at 426,
434–436.
By contrast, the fraud-based discovery rule sets
the time at which a claim accrues,
i.e., the time when the
statute of limitations commences to run. See
Merck &
Co., 559 U. S., at 644–645. It is “an exception to the
standard rule” that “a claim accrues when the plaintiff has a
complete and present cause of action.”
Gabelli v.
SEC,
568 U.S.
442, 448–449 (2013) (internal quotation marks omitted).
Accordingly, when a plaintiff is “injured by fraud . . . ‘the bar
of the statute does not begin to run until the fraud is
discovered.’ ”
Holmberg, 327 U. S., at 397 (quoting
Bailey, 21 Wall., at 348). For example, in
Exploration
Co. v.
United States,
247 U.S.
435 (1918), a company had unlawfully procured land from the
United States through a series of fraudulent transactions in 1902.
Id., at 437, 438. The parties involved in the transactions
successfully concealed the scheme until 1909.
Ibid. When the
Government brought suit to void the transactions, the company
raised the six-year statute of limitations as a defense.
Id., at 445. Applying the fraud-based discovery rule, the
Court held that the limitations period began to run only upon the
Government’s discovery of the fraud.
Id., at 449. The suit
was filed within six years of that date and was therefore timely.
Ibid.
I do not agree that Rotkiske failed to preserve
a fraud-based discovery rule argument in the Court of Appeals. See
ante, at 7. Rotkiske did raise the issue; he argued that
“[a]t the very least, . . . the discovery rule
applies to [FDCPA] claims based on false or misleading
misrepresentations or other self-concealing conduct.” Supp. Brief
for Appellant in No. 16–1668 (CA3), p.13 (citing
Bailey, 21
Wall., at 350). The Court of Appeals apparently declined to address
that argument because Rotkiske had failed to raise “equitable
tolling” in his appellate briefs. 890 F.3d 422, 428–429, and
n. 5 (CA3 2018). But failure to raise “equitable tolling”
should pose no obstacle to determining whether the discrete
fraud-based discovery rule applies to Rotkiske’s claim.
Nor do I agree that Rotkiske forfeited the issue
by not raising it in his petition for certiorari. See
ante,
at 7. Generously read, Rotkiske asked whether a discovery rule of
any kind applies to the FDCPA’s one-year statute of limitations.
While hardly a model of the deft pleader’s art, the petition for
certiorari stated that Rotkiske did not learn of Klemm’s
debt-collection suit and default judgment until long after their
occurrence because of the “intended re- service [of Klemm’s
complaint] at a known incorrect address.” Pet. for Cert. 8. His
brief on the merits in this Court noted: “Petitioner is not
advocating that the Court adopt a generally applicable discovery
rule.” Brief for Petitioner 16, n.16. His reply brief was more
precise: “The default judgment obtained by [Klemm] at issue in
[Rotkiske’s FDCPA complaint] was made possible by the filing of a
fraudulent Affidavit of Service.” Reply Brief 15. Indeed, the Court
recognizes that Rotkiske’s arguments included “a fraud-specific
discovery rule as an equitable doctrine.”
Ante, at 4.
Rotkiske’s FDCPA complaint, in my view, falls
comfort- ably within the fraud-based discovery rule’s scope. See
Brief for Samuel L. Bray et al. as
Amici Curiae 12–14.
Rotkiske alleged that Klemm engaged in “sewer
service”—intentionally serving process in a manner designed to
prevent Rotkiske from learning of the collection suit. Klemm did
so, according to Rotkiske, in order to ensure that Klemm’s untimely
suit would result in a default judgment that would remain
undiscovered until time to oppose that judgment, and to commence an
FDCPA suit, ran out. Though Rotkiske did not allege that “sewer
service” is itself a practice independently proscribed by the
FDCPA, such service is nonetheless a fraudulent abuse that should
trigger the fraud-based discovery rule. See Reply Brief 15–17.
The Government urges that the fraud-based
discovery rule applies only when the fraudulent conduct is itself
the basis for the plaintiff’s claim for relief. Brief for United
States as
Amicus Curiae 31–32. That is not so of Rotkiske’s
complaint, the Government observes, for his claim is premised on
the assertion that Klemm’s debt-collection suit was time
barred.
I do not view the fraud-based discovery rule as
so confined and would hold that the rule governs if either the
conduct giving rise to the claim is fraudulent, or if fraud infects
the manner in which the claim is presented. That understanding of
the rule is consistent with its equitable roots and historic
rationale. Nearly two centuries ago, Justice Story explained the
rule this way: “[E]very statute is to be expounded reasonably, so
as to suppress, and not to extend, the mischief[s ] which it
was designed to cure.”
Sherwood v.
Sutton, 21 F. Cas.
1303, 1307 (No. 12,782) (CC NH 1828). Because statutes of
limitations “preven[t] fraudulent and unjust claims from starting
up at great distances of time,” a limitations provision “ought not
. . . be so construed, as to become an instrument to
encourage fraud, if it admits of any other reasonable
interpretation.”
Ibid. “[C]ases of fraud, therefore, form an
implied exception [to a limitations prescription],” so as not to
“permi[t] the defendant to avail himself of his own fraud.”
Ibid. This Court expressed the same understanding of the
fraud-based discovery rule in
Bailey. There, the Court
stated: “To hold that by concealing a fraud, or by committing a
fraud in a manner that it concealed itself until such time as the
party committing the fraud could plead the statute of limitations
to protect it, is to make the law which was designed to prevent
fraud the means by which it is made successful and secure.” 21
Wall., at 349.
Klemm allegedly employed fraudulent service to
obtain and conceal the default judgment that precipitated
Rotkiske’s FDCPA claim. That allegation, if proved, should suffice,
under the fraud-based discovery rule, to permit adjudication of
Rotkiske’s claim on its merits.
* * *
For the reasons stated, I would vacate the
judgment of the Court of Appeals for the Third Circuit and remand
the case for further proceedings.
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