Legal Case Summary

Rotkiske v. Klemm

Date Argued: Wed Oct 16 2019
Case Number: 18-328
Docket Number: 16351622
Judges:Not available
Duration: 50 minutes
Court Name: Supreme Court

Case Summary

**Case Summary: Rotkiske v. Klemm** **Docket Number:** 16351622 **Court:** [Specify the court, e.g., U.S. Supreme Court, state court, etc.] **Date of Decision:** [Specify date] **Background:** The case of Rotkiske v. Klemm centers on a dispute involving the Fair Debt Collection Practices Act (FDCPA). The plaintiff, Daniel Rotkiske, had incurred a debt that was subsequently subject to collection efforts by the defendant, John Klemm. The core issue revolved around whether Rotkiske’s claim was barred by the statute of limitations provided under the FDCPA, which stipulates a one-year period for filing claims against debt collectors. **Key Issues:** 1. Whether the statute of limitations under the FDCPA begins to run at the moment the violation occurs or when the victim becomes aware of the violation. 2. The interpretation of the “discovery rule” in the context of the FDCPA and how it applies to consumer protections against debt collectors. **Arguments:** - **Plaintiff (Rotkiske):** Argued that the statute of limitations should start when the plaintiff discovers the violation, not when it occurs. He claimed he was unaware of the debt collection activities and thus should be allowed to pursue his claims despite the passage of time. - **Defendant (Klemm):** Argued that the statute of limitations had expired regardless of Rotkiske’s knowledge of the violation, and that adherence to the one-year limit is critical for ensuring predictability in debt collection practices. **Court’s Analysis:** The court examined the language of the FDCPA, relevant precedents, and the principle of the discovery rule. It considered how various jurisdictions interpret the start of the limitations period and whether consumers should be afforded additional time based on their awareness of the violation. **Decision:** [Details about the court's ruling, whether it favored Rotkiske or Klemm, and any important legal principles established in the decision.] **Significance:** The ruling in Rotkiske v. Klemm has significant implications for consumers and debt collectors alike, clarifying the application of the FDCPA’s statute of limitations and potentially influencing future cases regarding consumer rights and protections against unfair debt collection practices. **Conclusion:** The case serves as a critical examination of consumer protection laws, emphasizing the balance between protecting consumers from predatory practices while also maintaining fairness and consistency in legal proceedings related to debt collection. --- *Note: For complete accuracy, specific details such as decision dates, court name, and the court's final opinion should be added, as those details are not provided in the prompt.*

Rotkiske v. Klemm


Oral Audio Transcript(Beta version)

We'll hear argument next in case 18328, wrote Kiske versus Klem. Mr. Gantt? Mr. Chief Justice, and may it please the Court. While this case is about the FDCPA, it is also fundamentally about the relationship between this Court and Congress. That relationship has long been governed in part by two important presumptions relevant here. First, that Congress legislates against the backdrop of the common law. And second, that Congress legislates aware of this Court's decisions. When Congress enacted the FDCPA in 1977, this Court had long ago adopted a common law rule, eventually known as the Discovery Rule, applicable to cases of fraud and concealment. Siding to and quoting the Bayley decision of this Court from 1875 in Homeburg in 1946, this Court stated that it had long ago adopted as its own the Old Champsary Rule. They were 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 will be no special circumstance or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party. The Court then continued in Homeburg explaining unequivocally, this equitable doctrine is read into every federal statute of limitation and added even those where quote an explicit statute of limitation for bringing suit, close quote. The United States concedes as it has in prior cases that there is a common law discovery rule applicable to fraud and concealment. In the decision below, the Third Circuit never mentioned the Homeburg case. Its analysis began and ended with two words in Section 813D, violation occurred. The Third Circuit understood that those two words by implication, not expressly, but by implication, that's at appendix page 8, displaced the common law discovery rule applicable to fraud. In reaching this conclusion, the Third Circuit deployed what I believe is a false dichotomy. What the Third Circuit described on the one hand is an occurrence rule and on the other hand a common law discovery rule. And in the view of the Third Circuit, if a Congress deploys in a statute, a so-called occurrence rule, a common law discovery rule is presumed to be displaced. The Third Circuit cited no decision of this Court in setting forth this dichotomy between an occurrence rule and a common law discovery rule that analysis that page 6 of the appendix. That conclusion of the Third Circuit is also an opposition to this Court's decision in 1918 in the Exploration Cates, which is discussed at length in our brief in the briefs of the other parties. There, that is, I think, fairly characterized as an occurrence rule. The statute and exploration ran from the date of issuance of a land patent. So that was a date certain tied to facts. That, under the theory of the Third Circuit, and my friends is an occurrence rule, and they are the Court determined that the common law discovery rule should apply

. Ms. Agant, you keep saying fraud and self-concealing as if they are alternative rules. I think of there being multiple equitable doctrines, equitable tolling, equitable a stopper, and what I call the self-concealing fraud, which was the one mentioned in an exploration argued by the government in Gabelli and in other cases. Are you creating a fourth? That every case, every Federal statute inherently says, for whatever reason, if you didn't discover the fraud, equity could let you have a discovery rule. No, we are not intending to proper the rule. In fact, what we are attempting to do is advance the application of the already established rule, the Bailey-Homebook rule, and my friend. The point that I call it the self-concealing rule is that the fraud you committed is by its nature self-concealing. Is that an accurate way of stating that rule? I think so. We are not intending to differentiate. All right. Then what do you make a footnote five in the Third Circuit's opinion? Because four of the, I guess, their justices or judges there, judges would have remanded to allow the district court to consider whether he would be entitled to rely on this doctrine being the self-concealing rule. Because our President had not previously recognized that a defended self-continent concealing conduct may be a basis for equitable tolling. That seems to me that they understood the same thing I did, which is that there might be a self-concealing rule, but that you had waived it. And that's why those four judges were invading to remand. How do you read that any differently? This is as good a time as any to get to an important issue here, which is the confusion understanding of relationship between what I'm calling the common law discovery rule, the Bailey-Homebook rule, and the refrain I was using of fraud or concealment comes from TRW directly, which is why I was using it, but not intending to create the different doctrine. All of the parties here and the scholars, Amicus brief, that was submitted all agree that there has been at times confusing use of terminology. And I think it is impeding an understanding of what is really going on in the courts below and this case, and in the Third Circuit's discussion of these issues, including in footnote five that you referred to, Your Honor. So let me, if I may, in trying to answer your question, set forth what I think is the best understanding of the discovery rule on the one hand, the equitable tool and rule on the other hand, and then try and bring it directly to your question of what I understand the Third Circuit to have been doing in footnote five. Our view is that the best understanding of the discovery rule is that it applies when the plaintiff is unaware of their cause of action or the facts giving rise to the cause of action here, the violation because of fraudulent conduct or self-concealing conduct by the defendant. And in that situation, the clock for the statute of limitations does not begin to run at all. Equitable tolling, on the other hand, applies, we think, best understood in a situation where the plaintiff is aware of the violation giving rise to a cause of action. But for some reason, applying the elements set forth in this court, exercise due diligence or diligently pursued his or her rights, but was unable because of some extraordinary circumstance to timely file suit, then if the doctrine is deemed to apply, then the untimely filing is forgiven. And in that circumstance, the statute of limitations is best understood to have begun to run, but then be told or abated because of the circumstances. That's our understanding of these rules, and that's the same understanding, I think that the scholars said forth. And it's under that view, equitable tolling would be best understood as not applicable to this situation

. Now, this Court, I respectfully submit, has sometimes used the label of equitable tolling to describe to circumstances that I think are best understood as the Bailey Homework Discovery Rule. And that has caused confusion here and and in courts below, and I think it did cause confusion in the third circuit. And the third circuit appeared to operate under the view at the time this case was decided that self-concealing conduct did not qualify, that there had to be some separate act apart from the elements of the offense. In addition, that was concealing, an example that I'm familiar with from my own practices in antitrust cases, where although they use the label of fraudulent concealment, which I think is best understood separately as a close cousin of the Discovery Rule, in those circumstances, you have a violation alleged of, say, Section 1 of the Sherman Act, a conspiracy. And most cases, when there's a statute of limitations argument that the contact went back more than the four years provided in the statute, there's an argument about whether the conspiracy was concealed. Most courts there require some additional action in addition to the, there the conspiracy itself. I'm sorry to interrupt, is the Discovery Rule equitable? I believe it is. But I think it is equitable, but also properly understood as an exercise in statutory interpretation. I don't think there are many reasons. I'll grant you that. So the Discovery Rule could be part of a statute, but if it's not part of a statute, there exists, I think you're saying, an equitable Discovery Rule as well that is akin to, but maybe not the same as equitable tolling. Is that your argument? Yes to the last part of that, that that quote was. Can you just give me a real clear on the answer to, because clarity, we do need clarity. I will do my best. I agree that that's useful for everybody. There's a distinction between statutory Discovery Rule, obviously, and the common law Discovery Rule. The statutory Discovery Rule is employed by Congress from time to time. It was present in, it's here W, for example. That was, in my understanding, the basis for the ruling in that case principally was that Congress had decided to statutorily write in a Discovery Rule and then apply traditional tools of statutory interpretation to determine that it wouldn't then also add on the common law Discovery Rule. So when there is an absence like here of a statutory Discovery Rule, then the question becomes to Congress intend to permit or displace the addition or the words of Gabelli, the grafting onto, which I don't view as pejoratively, but I think my friends on the other side attempt to use that way. Grafting onto or importing into, the statute of common law Discovery Rule. You use common law Discovery as had equivalent to equitable discovery. I think it's the doctrine that originated in equity, but also applied to cases of law. The Court said that back in Bailey, the doctrine had its origins in equity applied to law, and it is applied. And I think, and here's where I think that it's both equitable in origins, and I think in nature, but also fundamentally an exercise in statutory interpretation, because the touchstone is whether or not it intended, Congress intended to foreclose or permit the application of the common law doctrine to the statute in the absence of some express indication

. And if you are arguing and across the board Discovery Rule applies to the FDCPA, I think the TRW weighs very heavily against you. So you could be arguing across the board Discovery Rule, or you could accept that there is a fraud exception. You seem to be arguing the first that in the, there's a Discovery Rule for all FDCPA cases. Justice Ginsburg, we mean the latter. So, except the fraud exception, but then the government tells us that this case doesn't fit within the fraud exception. And it clearly does. So just to be clear, we're not arguing that every FDCPA action is timely so long as the plaintiff was unaware. What we're saying is that if they were unaware because of circumstances that fit within the Bailey homework framework, fraud that prevented the plaintiff from knowing about their cause of action under that longstanding doctrine, then the plaintiff is permitted to file out of time. Is it? It's not a violation. What happened here serving the debtor at an address that was not the debtor's? That's not a violation of the FDCPA, is it? Onto itself, it might not be, but we have a very different circumstance in this case. So the facts that are alleged, and you'll recall that this case comes to the court on a ruling on a 12 B6 motion. So of course, the court can choose the allegations, except the allegations as true. The allegations is made and is understood by the lower courts or as follows. The respondent retained a process server to serve file to complaint against my client. There was an affidavit of service filled out that said that the head of the household had been served. And that was false and they had in the wheeledge in the facts below a certain, they had reason to know that that was false. So they filed a false affidavit of service and that false affidavit of service was then the basis for a default judgment. So it's those two actions together. The filing of a false affidavit of service and then obtaining a default judgment on that basis that we contend violates sections 807 and 808 of the statute, which were codified at section 1692 E&F. Those prohibits any false deceptive or misleading representation or means of pursuing a debtor. And the issue, I don't think the issue is, is your basic claim, a claim of fraud. And the other. And it doesn't sound it. I mean, who did you fraud? The judge? Yes, the, the, where, was it? I've never heard of a case brought under this. Where the fraud, you, I mean the cases that were brought, where somebody said, get me your land and I will, because the land has gold or something on it, that was a lie

. So by my land, it has gold on it and they sell the land and it doesn't have gold on it. That's sort of fraud, okay? But I've never heard of a fraud case. I'm not saying you may, you may be actionable. I mean, it may be that you recover under the statute. It may be a bad thing, but it doesn't sound like common law fraud to me. So is there something where the person who defrauded is a judge, because the process server, rightly or wrongly, filed the wrong name? But that's what you're saying is a common law fraud. Yes, the, and then what is the, what is the, what is the, what is the, what is the, what is the case that says a process server who fills in the wrong name and fools the judge, is the person who hired the process server is, has committed common law fraud. Well, it's not, with respect to Justice Breyer, it's not just the process server and the allegations go further than an innocent mistake. And the other side argues that this was an innocent. I'm asking you, what here brings your case within the rubric of common law fraud. So if we had Lord Cook in front of us, you see, he would say, oh, I recognize this old man still recognizes that this is common law fraud. That's what I want to know. And our allegation is that the, the, the, the knowing misrepresentation on the affidavit service or reckless representation, we cite to bloodline. Who represented, who writes the representation of the process server or the, or the, or the, or the person? The process server signs signs under, effectively under penalty of purger. Yeah. That the representations are true. They were false and we can make the representations. The process server makes the representations. Oh, so are you, are you your client, the process server? No, that, that's why it is not. That was the next point, which was that then the attorneys are the ones who file the affidavit of service, which we contend they had reason to know was false. And then the, the attorneys then prosecute the case of, in a, I know the latter part. I got the latter part. That's the harm. But, but the, the, the fraud consists of an attorney making a knowingly accepting the false statement of a process server. Now, the closest case that you have found that calls that activity common law fraud is

. We didn't look for a specific case, you were. No, you didn't, because it's so obvious that it's common law fraud. Well, if, if you may not find the satisfactory, but we weren't the only ones here who thought that this constituted fraud, the solicitor general's brief, I believe it's a page 20. No, no, I'm not, I'm not that. I'm just trying to find out by myself, and I, and I'm not certain that's why I'm asking. And, and so the solicitor general called this akin to fraudulent concealment. A akin to, you know, wait, that's totally different thing. Your discovery, look, I might buy below this is Judge Posner's opinion in the Cotta case. So if that's wrong, you better stop me now. But I've read that about it. I don't know whether it's wrong because I haven't read it, so I won't stop. Well, it's a very good list of all these different doctrines, equitable, a stop-all, equitable list, and they're like six of them or something. And one of them, the thing that you're talking about now is a special thing called, what's it called, undiscovered fraud. I thought an element of that is that the basic underlying thing is common law fraud. And that's what I'm trying to investigate now. That if you have nothing more to say, I have nothing more to say because I knew more about it, I wouldn't ask the question. I don't have a case, I wish I did. Obviously, that is something that could be, and we respectfully submit, should be addressed on remand. Not only the solicitor general, but one of the amici, the trade, the major trade association for the creditors, the ACA, also acknowledged in their brief that what's at issue here, it has a name, it's called sewer service. It's so prevalent that it has a name. There was testimony before Congress when the FTCPA was enacted. A representative from the FTC came to Congress at the beginning of the hearings that led to the enactment of the statute. And August of 1976 said that this phenomenon, which is that issue here, sewer service, is a major problem in many urban areas. I read you said the statement was the process server. The process server was told by the creditor, served process at this address

. So it wasn't the process server didn't make it up. The process server was told where the process should be served. The process server, and I think it's helpful to understand for context here, there was an original suit that was withdrawn, which also had a defective affidavit of service. And then a subsequent one that led to the default judgment at issue here. It was the same process. Kagan, you know, the process server was just following the directions of the person who engaged the process server. Well, they were certainly following the direction to serve process. There's nothing in the record that indicates the substance of the discussion. We do know that the first service was attempted in an address. And it falsely represented that the plaintiff was personally served. He was not. It also represented. He was black, according to the affidavit of service. He's not. He's Caucasian. It represented. He was 51 years old. He was in his late 30s at the time. That was added. And so they had reason. And then that suit was withdrawn. We believe because they knew that the affidavit of service was false and that the plaintiff didn't actually live at that address. Then a new suit was filed and a new affidavit of service, the one issue, was- Kagan, yes. I know it is terribly confusing because of the confusion of the use of terms. That's why I called it a self-concealing fraud

. It's not the violation at issue that's self-concealing. It's how the violation came about that could be by self-concealing fraud, correct? Isn't that your point? We believe that the common law discovery rule, the Bailey-Homber rule, can apply either if the fraud is an element of the offense, which it effectively is your under our view under subsections E and F, or it can be separated apart in addition to the elements of the offense. So here, there have been several questions, so I want to, if I could, just make this clear because I think the facts are important and they should be addressed on remand. And we're not saying we win on remand, the other side will get to make its arguments including that we don't fit with the macontors of fraud. But we believe that this is close- the decision below was you don't get a common law discovery rule applied to the statute period. That was wrong. That should be reversed and we should have an opportunity then to have arguments about these issues, whether the approach of the view of Justice Breyer is right, or at least your arguing hypothetical, you know. For arguments sake, the view of Judge Posner that this might fall outside common law fraud, we don't think it does. We cited black's law dictionary. In my view, this falls squarely within the contours of common law fraud is described in black's law dictionary, which is a misrepresentation. It was a knowing misrepresentation of the Court. They served at an address that they knew was not his. They said they served ahead of the household, and that was false. And then they used that false affidavit made sworn under oath, the attorneys then went into court, and used it as the basis for obtaining a default judgment, which then prevented my client from obtaining a mortgage which he still doesn't have to this day. You've referred to remand a few times. I think the other side's argument is that the statute itself does not have a discovery rule and that any equitable discovery rule, or as you're terming a common law discovery rule that might exist in less Congress expressly displaces it, was not raised in the third circuit. Your response to that? I'm sorry. What wasn't raised in the first century? Equitable discovery. It is true that equitable tolling per se was not addressed in the third circuit. But Homeberg and Bailey were both cited to the third circuit, and at the time it was clear in the first. I think what they're saying, and this may not be a winning argument, but I just want to get your response to it. I think what they're saying is those were raised in the context of statutory interpretation reading the statute. It does not contain a discovery rule. There may be still an equitable discovery rule, but you didn't separately, I think they're saying this, you didn't separately raise that kind of equitable discovery argument. Your response to that is that wrong

. They are wrong in their understanding of the operation of the two words violation occurred, and it's effect on whether the common law discovery rule applies. We say that that language is inconclusive with respect to the question of whether or not Congress intended to permit or preclude the application of the common law discovery rule, and we then urge the Court to apply traditional tools of statutory interpretation to look to the statute's purpose, to eliminate these debt collection practices that are prohibited, the structure of the statute. We discuss this a length and a brief, and based on those factors, we believe it's clear that Congress would have intended for the common law discovery rule to apply to this. Kagan, what about your petition in this Court? Because as I read your petition in this Court, it was more about the general statutory interpretation question, whether there is a discovery rule that applies generally in this statute, than it is about whether certain equitable exceptions might continue to exist. You're referring to the petition for search theory? The petition for search theory clearly presented the discovery rule for consideration. And again, what did that mean? Well, as I read the petition, it really did not address whether there was an equitable exception of the kind that the Third Circuit might have thought had been waived. Well, that certainly wasn't how it was intended, and I'll, you may know, I didn't draft that. I don't read it that way, and I know for certain that that was not intended to exclude that. What may I finish? What was intended with the petition was to raise the question precisely as I attempted to present it this morning, which is whether or not Congress intended to permit or for close the application of the common discovery rule to the statute, and we contend that Congress clearly did not intend to foreclose it. Thank you, counsel. Thank you. Mr. Muratsky? Mr. Chief Justice, in May of pleased the Court. Mr. Gantan, I agree that this case is about the relationship between this Court and Congress. Congress provided in the FDCPA that the statute of limitations would begin to run when the violation occurs, not when it is discovered. That answers the question presented in the Serpentition. The plain meaning of violation occurs concerns when the defendant commits the violation, not when the plaintiff learns of it. Unlike more ambiguous phrases like claim accrues or liability arises, violation occurs simply can't be read any other way. And we know Congress itself understands violation occurs that way, because in other statutes, including the 1978 Right to Financial Privacy Act, Congress used the phrase violation occurs to distinguish an occurrence-based limitations period from a discovery based one. Why position simply did I let you finish? I think you still have a little time left, don't you? Oh, sorry. Well, like Justice Ginsburg and Justice Kagan, I understand the question presented here to be whether in across the board discovery rule applies to the FDCPA. That's the only issue that the Third Circuit decided. The Serpentition does not cite Bayley or Holmberg, doesn't mention the word fraud

. If it had, we might have had an argument in our briefing opposition for why this case doesn't present a fraud case and therefore would be an inadequate vehicle to consider that question. So the only question before this Court should be whether there's in across the board discovery rule. Despite all of that, Mr. Gantt focused his argument this morning on the fraud cases. There are a number of reasons why the fraud cases don't ultimately help him. I'd like to start out focusing on one, which is those cases are properly understood as equitable tolling cases, not as discovery rule cases. That's how this Court most recently characterized them in cases like ANZ and in Luzano, and it matters for four reasons that the terminology be used correctly and that we distinguish between discovery rule and equitable tolling. The four reasons are the following. First, the two doctrines of discovery rule and equitable tolling are different concepts with different sources. The discovery rule is about how to read the words Congress writes in a statute. It's a statutory interpretation question. That's the exercise that the TRW was engaged in. Equitable tolling is about excusing non-compliance with the words that Congress has chosen. It is an application of Court's inherent equitable powers, confirmed in the Judiciary Act, which exists independent of what Congress has said in any particular statute of limitations. As a result of that, and this is my second point, the discovery rule and equitable tolling have different scopes. The discovery rule. But I thought that the Justice Scalia and my opinion in TRW spoke about the discovery rule, not equitable tolling, exception to the discovery. Does this discovery rule could apply cases of fraud? I think what TRW was talking about was that the discovery rule might apply to fraud statutes. That's different from saying that there is a discovery rule in any case of fraud that happens to arise under a non-fraud statute like the FBCPA. The words violation occurred, occurs, have to mean the same thing no matter what the underlying type of FDCPA violation. It can't mean violation occurs in a non-fraud claim, but violation occurs or is discovered in a fraud claim. And that's why the way to think of excusing non-compliance with a limitations period in a situation that did present fraud would be as equitable tolling. Because equitable tolling is a case-by-case doctrine in which courts use their inherent equitable powers to excuse non-compliance with the statute on particular fact. I mean, there might be variants of equitable tolling. Might not be there

. I mean, one variant is there were extraordinary circumstances in Earthquake hit. And so I couldn't file this suit in time. And so you should toll the statute of limitations until I can. I mean, that would be one. And then a different one would be this kind of, I couldn't possibly have known that the statute of limitations had even started to run because there was fraud committed against me. Is that right? I mean, you can put them all under an umbrella label, but those are two different things, aren't they? I agree that they would be under the same category of equitable relief because in both situations what a court would be doing is not applying the language that Congress wrote. Congress didn't say anything about earthquakes, but Congress would be excusing compliance with the language, the Congress, I'm sorry, the court would be excusing compliance with the language that Congress wrote based on either the earthquake or fraud. What those have in common is that they are under the bucket of equitable relief from what Congress wrote rather than- So, if those are foreclosed by the statute or is your view simply that those arguments were waived, and this case has nothing to do about them, with them. Our argument is that those arguments were waived. They're not properly before this court. The only question before this court is how to read the words that Congress wrote, and when Congress wrote the words violation occurred, it didn't leave the door open to read that across the board in every FDCPA case as violation occurs or is discovered. So, you are not taking the position one way or the other about whether those equitable defenses can be raised. I don't think that is presented by this case. The issue hasn't been brief. The Third Circuit didn't, the Third Circuit held that it was waived. It's not presented in the circuitition, and simply not part of the problem. So, it's an open question. If you have a typical, I don't know if it's typical, but equitable tolling situation, there are hurricane, you know, whatever, even the courthouse's closed sort of thing. Even though you're dealing with a statute of the sort you have here, those claims could certainly be raised. Or at least you think it's an open question. We are not arguing that that's foreclosed by this statute. We're saying that issue is simply not presented by this case. So, and similarly, the Bailey kind of equitable rule. You're also saying that you're just not saying. We're saying that it wasn't preserved, and therefore is not properly before this court at this stage. There's no reason to remand on a question that all members of the N.Bank Third Circuit Court held was waived. Four members went out of their way to point out in footnote five that they would have remanded if only had been preserved, but it wasn't. I suppose what you have to maintain, though, is that equitable tolling has a higher or different threshold than simply a discovery rule. And that is actually, I said I had four reasons why I think the discovery rule and equitable tolling are different doctrines. That's the third of them, is that I think equitable tolling has a higher bar. Equitable tolling applies, or only in extraordinary circumstances, which, as this court said in Rhotela, which distinguished between the discovery rule and equitable tolling, that's a virtue of equitable tolling that it's the exception not the rule. If the court is going to exercise its inherent equitable powers to override the language that Congress has written, that should be something that only happens in unusual exceptional circumstances. And I should look at my recollection of Katta and so forth. One, the statute might provide for tolling. That's the argument in front of us. You say no. He says, yes, you're going on the words. A second basis would be equitable tolling. The Court House blows up or so hurricane. That's not here. Forget it. The third is sometimes called equitable as stop-all, and that's no man should benefit from his own wrong. That might apply here, except for the fact that the third circuit said absolutely waived, he never raised it and so forth, and he doesn't even claim he raised that with. But there is a fourth one. And the fourth one, which Justice Scalia said in this case, is out of Bailey, which applied from Lord Cook or something and is of ancient origins, and that's if your basic claim is a claim of fraud. If your basic claim is a claim of fraud, there is a tolling rule. Now, one, was that ever raised clearly, probably not. Two, is the basic claim here. It was a claim that this is an uncollectable debt, not that it was a fraudulent debt

. There's no reason to remand on a question that all members of the N.Bank Third Circuit Court held was waived. Four members went out of their way to point out in footnote five that they would have remanded if only had been preserved, but it wasn't. I suppose what you have to maintain, though, is that equitable tolling has a higher or different threshold than simply a discovery rule. And that is actually, I said I had four reasons why I think the discovery rule and equitable tolling are different doctrines. That's the third of them, is that I think equitable tolling has a higher bar. Equitable tolling applies, or only in extraordinary circumstances, which, as this court said in Rhotela, which distinguished between the discovery rule and equitable tolling, that's a virtue of equitable tolling that it's the exception not the rule. If the court is going to exercise its inherent equitable powers to override the language that Congress has written, that should be something that only happens in unusual exceptional circumstances. And I should look at my recollection of Katta and so forth. One, the statute might provide for tolling. That's the argument in front of us. You say no. He says, yes, you're going on the words. A second basis would be equitable tolling. The Court House blows up or so hurricane. That's not here. Forget it. The third is sometimes called equitable as stop-all, and that's no man should benefit from his own wrong. That might apply here, except for the fact that the third circuit said absolutely waived, he never raised it and so forth, and he doesn't even claim he raised that with. But there is a fourth one. And the fourth one, which Justice Scalia said in this case, is out of Bailey, which applied from Lord Cook or something and is of ancient origins, and that's if your basic claim is a claim of fraud. If your basic claim is a claim of fraud, there is a tolling rule. Now, one, was that ever raised clearly, probably not. Two, is the basic claim here. It was a claim that this is an uncollectable debt, not that it was a fraudulent debt. I take it that the basic claim was not fraud, but I'm not sure on other abose points. So should we send it back on those points? Kagan No, and let me unpack that question and make three different points about it. First, the Bailey line of authority, as Judge Posner described in that seven-circuit case, still fits within the category of equitable relief from the statute rather than interpreting the statute. And the only question presented in the circuit, is that aside even what happened in the third circuit, in the circuit here, is the question of statutory interpretation. The circuit, the Bailey doesn't mention fraud. It would be quite out of the ordinary for this Court to remand for consideration of a question that the lower court considered waived and didn't decide, and that the petitioner didn't even raise in the circuit, itself. So that's one answer. In the second point. If we don't agree with you, this is under the rubric of equitable toll. I mean, I talked to Justice Scalia, was very clear when he said, the discovery rule, as a general matter, doesn't toll when your statute of limitation triggered by the, what was the occurrence of the violation. But he said there is an exception to the non-application of the discovery rule for fraud. We have recognized historical, historical exception for cases based on fraud. Justice Ginsburg, the Court, and it pains me to say this, Justice Scalia, have not, have not always been precise in their use of this terminology. But where it has mattered, the over-nose grave hearing that, what were it's not? Where it has mattered, where it has been dispositive of an issue such as in ANZ. The Court has been careful to distinguish between equitable doctrines, equitable tolling, and the discovery rule. And that is, that is really the only way to read these cases, Bailey and Holmberg and Exploration Co. They are best understood as equitable cases because throughout those opinions, the Court is talking about the exercise of traditional equitable powers. And those cases are not engaged in statutory interpretation. If you look at a case like Bailey or Holmberg, it is not doing the same thing as TRW. It's not even, Holmberg, for example, was not even asking the question, how do we have a cause of action accrued? It's not even a question of what that language means. It's simply creating an exception to it. And that is the better way to understand those cases. In any event, even if there were some sort of a fraud discovery rule, that still wouldn't help here for three reasons, one of which is the waiver which I've talked about, two, even if there is a background, even if there were a background fraud discovery rule, Congress could still overcome that. It would still only be a presumption. And the language that Congress used here, violation occurs, would overcome any common law discovery rule

. I take it that the basic claim was not fraud, but I'm not sure on other abose points. So should we send it back on those points? Kagan No, and let me unpack that question and make three different points about it. First, the Bailey line of authority, as Judge Posner described in that seven-circuit case, still fits within the category of equitable relief from the statute rather than interpreting the statute. And the only question presented in the circuit, is that aside even what happened in the third circuit, in the circuit here, is the question of statutory interpretation. The circuit, the Bailey doesn't mention fraud. It would be quite out of the ordinary for this Court to remand for consideration of a question that the lower court considered waived and didn't decide, and that the petitioner didn't even raise in the circuit, itself. So that's one answer. In the second point. If we don't agree with you, this is under the rubric of equitable toll. I mean, I talked to Justice Scalia, was very clear when he said, the discovery rule, as a general matter, doesn't toll when your statute of limitation triggered by the, what was the occurrence of the violation. But he said there is an exception to the non-application of the discovery rule for fraud. We have recognized historical, historical exception for cases based on fraud. Justice Ginsburg, the Court, and it pains me to say this, Justice Scalia, have not, have not always been precise in their use of this terminology. But where it has mattered, the over-nose grave hearing that, what were it's not? Where it has mattered, where it has been dispositive of an issue such as in ANZ. The Court has been careful to distinguish between equitable doctrines, equitable tolling, and the discovery rule. And that is, that is really the only way to read these cases, Bailey and Holmberg and Exploration Co. They are best understood as equitable cases because throughout those opinions, the Court is talking about the exercise of traditional equitable powers. And those cases are not engaged in statutory interpretation. If you look at a case like Bailey or Holmberg, it is not doing the same thing as TRW. It's not even, Holmberg, for example, was not even asking the question, how do we have a cause of action accrued? It's not even a question of what that language means. It's simply creating an exception to it. And that is the better way to understand those cases. In any event, even if there were some sort of a fraud discovery rule, that still wouldn't help here for three reasons, one of which is the waiver which I've talked about, two, even if there is a background, even if there were a background fraud discovery rule, Congress could still overcome that. It would still only be a presumption. And the language that Congress used here, violation occurs, would overcome any common law discovery rule. You know, I think that. If a patent issued, which is like what a violation, when a violation occurs, we still apply the equitable doctrine, the concealment doctrine in exploration, even though the language is aroma identical. So how do you separate exploration from here? Q. Because I think what the Court was doing in expiration code is best understood as equitable tolling, not as reading that language about the patent issuing to mean patent issuing or is discovered. This goes to the fundamental question, what is the Court doing? Is it interpreting language like patent issued or violation occurred to mean something other than what it says, or is it exercising the Court's inherent equitable power to override what the language says? Q. So are you saying there is no concealed concealing fraud whatsoever that the very act that you do, this is what they are claiming, the very act that you are alleged to have done, doesn't wouldn't qualify, assuming, and I know that you take issue with whether you really knew that was his address or not, and whether the lawyer just made a mistake in not seeing his own files, I want to put all of that aside. Let us assume for the sake of argument that the lawyer knew this wasn't the address, that the lawyer knew the process server had affected sewerage servers. And yet he intentionally lied to the Court and held on to his judgment until the Statute of Limitation passed. Do you believe that there is no common law, self-concealing fraud there? Q. Um, I don't think that that is common law, self-concealing fraud. I think that that might well qualify for equitable tolling. You don't need to put the fraud label on it for it to be equitable tolling. In a case where the Court actually decided that equitable tolling was properly presented and preserved. But I don't think that that would be common law fraud because it does not involve an intentional misrepresentation. That's not a bad thing. Q. Not sure that it's defendant, but to the Court, it's still conduct that would be fraudulent, maybe not on the defendant, but certainly on the Court, and why should that deprive the defendant of a cause of action? Q. It's actually alleged, and if it's dealt with as equitable tolling, rather than reading language like violation occurs to trigger the limitations period upon anything other than when the violation occurs. With respect to this case, though, it's not just the waiver in this Court and in the Third Circuit. I'd also direct the Court to the complaint in this case. It's a three-page complaint, and it's in the Court of Appeals appendix at 6A. The operative complaint itself does not allege what is now being described as so-called sewer service. The operative complaint alleges that the debt collection lawsuit here was filed out of time, and that as a result of what happened with the improper service, the plaintiff was entitled to equitable tolling on that claim because he didn't learn of the untimely lawsuit. So on a 12-B motion, which is what we're dealing with here, we are miles removed from the sorts of allegations in some of the amicus briefs about different cases involving sewer service. I make sure I have the terminology correct, sorry, on a couple of legal points

. You know, I think that. If a patent issued, which is like what a violation, when a violation occurs, we still apply the equitable doctrine, the concealment doctrine in exploration, even though the language is aroma identical. So how do you separate exploration from here? Q. Because I think what the Court was doing in expiration code is best understood as equitable tolling, not as reading that language about the patent issuing to mean patent issuing or is discovered. This goes to the fundamental question, what is the Court doing? Is it interpreting language like patent issued or violation occurred to mean something other than what it says, or is it exercising the Court's inherent equitable power to override what the language says? Q. So are you saying there is no concealed concealing fraud whatsoever that the very act that you do, this is what they are claiming, the very act that you are alleged to have done, doesn't wouldn't qualify, assuming, and I know that you take issue with whether you really knew that was his address or not, and whether the lawyer just made a mistake in not seeing his own files, I want to put all of that aside. Let us assume for the sake of argument that the lawyer knew this wasn't the address, that the lawyer knew the process server had affected sewerage servers. And yet he intentionally lied to the Court and held on to his judgment until the Statute of Limitation passed. Do you believe that there is no common law, self-concealing fraud there? Q. Um, I don't think that that is common law, self-concealing fraud. I think that that might well qualify for equitable tolling. You don't need to put the fraud label on it for it to be equitable tolling. In a case where the Court actually decided that equitable tolling was properly presented and preserved. But I don't think that that would be common law fraud because it does not involve an intentional misrepresentation. That's not a bad thing. Q. Not sure that it's defendant, but to the Court, it's still conduct that would be fraudulent, maybe not on the defendant, but certainly on the Court, and why should that deprive the defendant of a cause of action? Q. It's actually alleged, and if it's dealt with as equitable tolling, rather than reading language like violation occurs to trigger the limitations period upon anything other than when the violation occurs. With respect to this case, though, it's not just the waiver in this Court and in the Third Circuit. I'd also direct the Court to the complaint in this case. It's a three-page complaint, and it's in the Court of Appeals appendix at 6A. The operative complaint itself does not allege what is now being described as so-called sewer service. The operative complaint alleges that the debt collection lawsuit here was filed out of time, and that as a result of what happened with the improper service, the plaintiff was entitled to equitable tolling on that claim because he didn't learn of the untimely lawsuit. So on a 12-B motion, which is what we're dealing with here, we are miles removed from the sorts of allegations in some of the amicus briefs about different cases involving sewer service. I make sure I have the terminology correct, sorry, on a couple of legal points. So on the discovery role, there's a discovery role linked to fraud, as Justice Ginsburg said, you first look to whether it's in the statute, you say no. If it's not in the statute, if you're correct about that, you see if there's some kind of, there's an equitable discovery doctrine also linked to fraud that can apply. But your argument is that no equitable doctrines were raised here, and therefore we shouldn't consider the scope of how that might apply. Is that accurate? I think that would be a good opinion. Okay. The other part of that is you were making an argument that the words of the statute here expressly displaced, equitable discovery, and I think that's a shake here. Argument, because that would mean any time it's not in the statute itself, it's also meaning discovery, it's also expressly displaced. You don't need this argument to win, but you are giving it as an alternative, and I want to press you on that. So that's actually not the argument that I am intending to make. Okay. I don't think that Congress needs to expressly say no discovery role in order to foreclose the discovery role. If you had more ambiguous language, I know you're not saying that. I'm saying that. I'm saying that. You don't think that Congress has to say no equitable doctrines. But even for the statutory discovery role, I don't think Congress has to expressly foreclose a statutory discovery role in any situation where let's say you had like a lot of that. I agree with you on that on the statutory discovery, because I'll just assume I'm with you. But there still exists, I think you just said, a kind of equitable discovery role in less Congress has displaced that. And I would assume there's a higher bar for Congress to expressly displace the equitable discovery than there is for whether it's in the statute in the first place. I agree. And the only tweak that I would make to, I think the way that you formulated all of that, I view the equitable discovery role just as a species of equitable tolling. If like Judge Posner, you want to list out all seven different kinds of equitable doctrines that allow a court to override what Congress has written, that would be one of them. But I think the more helpful way to think of it is that there are two categories. There's statutory interpretation. What has Congress provided as the rule to apply across the statute in every FBCPA case? As to that question, violation occurs, means violation occurs, not discovered

. So on the discovery role, there's a discovery role linked to fraud, as Justice Ginsburg said, you first look to whether it's in the statute, you say no. If it's not in the statute, if you're correct about that, you see if there's some kind of, there's an equitable discovery doctrine also linked to fraud that can apply. But your argument is that no equitable doctrines were raised here, and therefore we shouldn't consider the scope of how that might apply. Is that accurate? I think that would be a good opinion. Okay. The other part of that is you were making an argument that the words of the statute here expressly displaced, equitable discovery, and I think that's a shake here. Argument, because that would mean any time it's not in the statute itself, it's also meaning discovery, it's also expressly displaced. You don't need this argument to win, but you are giving it as an alternative, and I want to press you on that. So that's actually not the argument that I am intending to make. Okay. I don't think that Congress needs to expressly say no discovery role in order to foreclose the discovery role. If you had more ambiguous language, I know you're not saying that. I'm saying that. I'm saying that. You don't think that Congress has to say no equitable doctrines. But even for the statutory discovery role, I don't think Congress has to expressly foreclose a statutory discovery role in any situation where let's say you had like a lot of that. I agree with you on that on the statutory discovery, because I'll just assume I'm with you. But there still exists, I think you just said, a kind of equitable discovery role in less Congress has displaced that. And I would assume there's a higher bar for Congress to expressly displace the equitable discovery than there is for whether it's in the statute in the first place. I agree. And the only tweak that I would make to, I think the way that you formulated all of that, I view the equitable discovery role just as a species of equitable tolling. If like Judge Posner, you want to list out all seven different kinds of equitable doctrines that allow a court to override what Congress has written, that would be one of them. But I think the more helpful way to think of it is that there are two categories. There's statutory interpretation. What has Congress provided as the rule to apply across the statute in every FBCPA case? As to that question, violation occurs, means violation occurs, not discovered. Then there's another bucket of various equitable doctrines that can be invoked under the court's authority to override statutory language. None of those are presented. I think that that distinction is helpful, but I want to push back on it a little, because it's all statutory interpretation, isn't it? I mean, as long as we understand that Congress could say, and no equitable doctrines shall apply either, then in some sense we're doing statutory interpretation, even when we say that Congress didn't displace equitable doctrines, aren't we? But, sure, there's always the question of whether Congress has overridden the longstanding equitable power of the court to itself override the statutory terms that Congress has used. So there is a statutory interpretation question there. But the difference between the equitable doctrines and the discovery rule, as I'm using that term, is that there is a presumption in favor of the availability of the court's equitable powers, and there's a higher bar that Congress has to use in order to foreclose that, if we're in the equitable bucket. You need something akin to a plain statement to get rid of the equitable doctrines in the statute. You probably are going to frown on the phrase plain statement, but something clear. Something clear this court has often looked to the sort of two parts of the statute. Because they're equitable, so we're not going to assume silence displaces these equitable doctrines. Correct. You're not going to assume silence does, that this court has typically looked to a sort of two parts structure where you would have a shorter discovery-based limitations period coupled with a longer statute of repose. And if you have that, this court has read into that sort of situation that Congress meant to displace equitable powers. Thank you, Council. Mr. Bond. Mr. Chief Justice, and may it please the Court. The question on which this Court granted review and the only question the Third Circuit decided is whether the FDCPA should be interpreted to impose a statute-wide rule that the limitations period does not begin to run until a violation is discovered. That's a question about what the statute means and the text supplies a clear answer. No. Now, Petitioner appears to be abandoning reliance on that broad theory and is now relying exclusively on this argument from Bailey's fraud rule. We agree with Respondent that Bailey's fraud rule does not apply in this case, at least as it's been teed up for the Court for three reasons or three points I'd like to make. Now, first, we agree with Respondent that the fundamental distinction that matters is between interpreting the way a statute of limitations operates and equitable relief from that statute. It's the distinction this Court drew in ANZ in describing American pipe. You've got interpreting and enforcing statutes and you've got equitable relief from the operation of the statute

. Then there's another bucket of various equitable doctrines that can be invoked under the court's authority to override statutory language. None of those are presented. I think that that distinction is helpful, but I want to push back on it a little, because it's all statutory interpretation, isn't it? I mean, as long as we understand that Congress could say, and no equitable doctrines shall apply either, then in some sense we're doing statutory interpretation, even when we say that Congress didn't displace equitable doctrines, aren't we? But, sure, there's always the question of whether Congress has overridden the longstanding equitable power of the court to itself override the statutory terms that Congress has used. So there is a statutory interpretation question there. But the difference between the equitable doctrines and the discovery rule, as I'm using that term, is that there is a presumption in favor of the availability of the court's equitable powers, and there's a higher bar that Congress has to use in order to foreclose that, if we're in the equitable bucket. You need something akin to a plain statement to get rid of the equitable doctrines in the statute. You probably are going to frown on the phrase plain statement, but something clear. Something clear this court has often looked to the sort of two parts of the statute. Because they're equitable, so we're not going to assume silence displaces these equitable doctrines. Correct. You're not going to assume silence does, that this court has typically looked to a sort of two parts structure where you would have a shorter discovery-based limitations period coupled with a longer statute of repose. And if you have that, this court has read into that sort of situation that Congress meant to displace equitable powers. Thank you, Council. Mr. Bond. Mr. Chief Justice, and may it please the Court. The question on which this Court granted review and the only question the Third Circuit decided is whether the FDCPA should be interpreted to impose a statute-wide rule that the limitations period does not begin to run until a violation is discovered. That's a question about what the statute means and the text supplies a clear answer. No. Now, Petitioner appears to be abandoning reliance on that broad theory and is now relying exclusively on this argument from Bailey's fraud rule. We agree with Respondent that Bailey's fraud rule does not apply in this case, at least as it's been teed up for the Court for three reasons or three points I'd like to make. Now, first, we agree with Respondent that the fundamental distinction that matters is between interpreting the way a statute of limitations operates and equitable relief from that statute. It's the distinction this Court drew in ANZ in describing American pipe. You've got interpreting and enforcing statutes and you've got equitable relief from the operation of the statute. And it's true that those are all statutory interpretation questions, but they're very different questions because on the one hand, a discovery rule that comes out of the statute has to be in the text and context of the statute, whereas equitable relief, whether it's viewed as one umbrella doctrine or subdivided into several different species, are all exercises of course traditional, free standing powers, courts of equity to relieve parties from the operation of a statute. We agree with Respondent that that difference matters, not just with respect to how clear a statute must be to displace or make clear that that doctrine doesn't apply, but also the scope of the rule that results at the Court of Serbian Rhotela. So to put it in terms of Judge Posner's opinion in Kata, the first category of statutes of cruel rules set forth in the statute, that's our first bucket. Everything else fits into that second bucket. And it's simply a question of whether you sub-divided into a subsidiary categories or not. Now, the second point is where Bailey fits in this taxonomy. And we acknowledge that language in the Court's opinions over the past number of years have sent some mixed signals. To the extent you address it here, we think the better view is that those cases are understood as applications of equitable principles, whether equitable tolling or a close cousin, for three reasons. First, the rule of rows at equity, starting in the Court's own chance and later carried over to Court's law. Second, that's really the only way to understand cases like exploration company where the statute, by its terms, doesn't run from discovery, doesn't leave room for a discovery rule. That can't be read to impose a discovery rule, but it certainly can be understood not to displace background equitable principles. And third, the Court has repeatedly and recently cited Bailey and Homeberg in other cases, including in context where it mattered, as Mr. Duretsky was explaining, on the equitable side of the line. The most recent example, as he noted, is ANZ. And in that case, it mattered whether American pipe was equitable or statutory in nature. And the Court relied on the fact that American pipe had cited Homeberg, which ANZ called a paradigm application of equitable tolling. So we think the Court's most recent and repeated word on this is that it falls on the equitable side of the line. But even if you think there are cases where there are, you have an ambiguous statutory provision and you can look to equitable principles to help you figure that out, that's fine, but that the underlying principle is still equitable in nature. And that would be like the Court's opinion in Merck, where you had an express discovery rule. And the question is, what does discovery mean? So the Court surveyed equitable practice, state statutes, in all manner of things that were relevant to figuring out what Congress meant in that provision. Sotomayor, do you think that that equitable principle is the same as the way the Court has defined equitable tolling? Meaning we have very strict construction under equitable tolling and certain elements to it. Do you think the same apply more broadly to all the equitable principles, or is it a separate principle altogether? So our view, and I'm not sure anything turns on it here, is that it's a subset of that broader equitable principle. You might think of it in terms of the kind of fraud that satisfies Bailey, which is fraud that has either concealed, affirmatively or self-concealing, satisfies by itself the extraordinary circumstance requirement of tolling. And then the second element diligence is just the same across both contexts. So it seems like a subset of the broader principle of equitable tolling, which explains why the Court's decisions in cases where it mattered, not just in ANZ, but in LAMPF and in Ratella, described cases like Holmberg and Bailey as falling into this bucket

. And it's true that those are all statutory interpretation questions, but they're very different questions because on the one hand, a discovery rule that comes out of the statute has to be in the text and context of the statute, whereas equitable relief, whether it's viewed as one umbrella doctrine or subdivided into several different species, are all exercises of course traditional, free standing powers, courts of equity to relieve parties from the operation of a statute. We agree with Respondent that that difference matters, not just with respect to how clear a statute must be to displace or make clear that that doctrine doesn't apply, but also the scope of the rule that results at the Court of Serbian Rhotela. So to put it in terms of Judge Posner's opinion in Kata, the first category of statutes of cruel rules set forth in the statute, that's our first bucket. Everything else fits into that second bucket. And it's simply a question of whether you sub-divided into a subsidiary categories or not. Now, the second point is where Bailey fits in this taxonomy. And we acknowledge that language in the Court's opinions over the past number of years have sent some mixed signals. To the extent you address it here, we think the better view is that those cases are understood as applications of equitable principles, whether equitable tolling or a close cousin, for three reasons. First, the rule of rows at equity, starting in the Court's own chance and later carried over to Court's law. Second, that's really the only way to understand cases like exploration company where the statute, by its terms, doesn't run from discovery, doesn't leave room for a discovery rule. That can't be read to impose a discovery rule, but it certainly can be understood not to displace background equitable principles. And third, the Court has repeatedly and recently cited Bailey and Homeberg in other cases, including in context where it mattered, as Mr. Duretsky was explaining, on the equitable side of the line. The most recent example, as he noted, is ANZ. And in that case, it mattered whether American pipe was equitable or statutory in nature. And the Court relied on the fact that American pipe had cited Homeberg, which ANZ called a paradigm application of equitable tolling. So we think the Court's most recent and repeated word on this is that it falls on the equitable side of the line. But even if you think there are cases where there are, you have an ambiguous statutory provision and you can look to equitable principles to help you figure that out, that's fine, but that the underlying principle is still equitable in nature. And that would be like the Court's opinion in Merck, where you had an express discovery rule. And the question is, what does discovery mean? So the Court surveyed equitable practice, state statutes, in all manner of things that were relevant to figuring out what Congress meant in that provision. Sotomayor, do you think that that equitable principle is the same as the way the Court has defined equitable tolling? Meaning we have very strict construction under equitable tolling and certain elements to it. Do you think the same apply more broadly to all the equitable principles, or is it a separate principle altogether? So our view, and I'm not sure anything turns on it here, is that it's a subset of that broader equitable principle. You might think of it in terms of the kind of fraud that satisfies Bailey, which is fraud that has either concealed, affirmatively or self-concealing, satisfies by itself the extraordinary circumstance requirement of tolling. And then the second element diligence is just the same across both contexts. So it seems like a subset of the broader principle of equitable tolling, which explains why the Court's decisions in cases where it mattered, not just in ANZ, but in LAMPF and in Ratella, described cases like Holmberg and Bailey as falling into this bucket. So we understand it to fall in the equitable tolling or the equitable relief side of the line. But at the end of the day, to decide this case, I don't think you need to resolve that particular question. If it's any kind of equitable relief, I think Petitioner has disclaimed reliance on that and certainly didn't present that below or in the petition. But even if you think it's a statutory rule that could be read in to every statute, we don't think this falls within the category of fraud claims. As Mr. Duresky was explaining, I don't think the complaint here, the single allegation that concerns improper service paragraph 14 of the complaint, doesn't allow any kind of misrepresentation, isn't premised on fraud. And to the point of amendment, when the district court asked Petitioner's Council, if he would like to amend, and this is at page 104A of the Court of Appeals Appendix Volume 2, Petitioner's Council emphatically said no. So I think that ship has sailed. Ultimately, we don't have a strong interest in whether you apply that rule here or leave it to the third circuit. But I think respect for the Court of Appeals and the integrity of the Surshirae process suggests that you should take the petitioner, the petition that its word and decide the case on those terms. Court has no further questions. Why, I have one. Why does it matter that it is a fraud claim, rather than whatever the claim is, fraud has been used to prevent the plaintiff from noticing it? So if you understand Bayley as an application of more general equitable principles that grant relief, not just from fraud, but from fraudulent concealment and other kinds of extraordinary circumstances like the earthquake, then we don't think it does matter. Bayley, I think, is best understood as applying those general principles in the particular context that was recurring at the time of fraud claims. So if you understand it that way, there's no rigid boundary. Bayley is simply explaining how those general principles apply in a particular setting. If instead you understand Bayley, however, as a rule of statutory interpretation that departs from the way we ordinarily read statutes, then we'd suggest you should apply that exception, that departure on its own terms rather than expanding it as I think the petitioner had suggested in the briefing. But again, if you understand it as an application of equitable principles, you don't need to draw a line between the rather than the underlying claim which was Bayley focused on the object or foundation of the suit or other examples like Homebird, which wasn't a fraud action, but involved fraudulent concealment. If you view those cases of a piece as involving general principles of equitable relief and everything hangs together. Councillor Neill. Thank you, Councillor. Thank you, Councillor. Five minutes, Mr. Gant. Thank you, Mr

. So we understand it to fall in the equitable tolling or the equitable relief side of the line. But at the end of the day, to decide this case, I don't think you need to resolve that particular question. If it's any kind of equitable relief, I think Petitioner has disclaimed reliance on that and certainly didn't present that below or in the petition. But even if you think it's a statutory rule that could be read in to every statute, we don't think this falls within the category of fraud claims. As Mr. Duresky was explaining, I don't think the complaint here, the single allegation that concerns improper service paragraph 14 of the complaint, doesn't allow any kind of misrepresentation, isn't premised on fraud. And to the point of amendment, when the district court asked Petitioner's Council, if he would like to amend, and this is at page 104A of the Court of Appeals Appendix Volume 2, Petitioner's Council emphatically said no. So I think that ship has sailed. Ultimately, we don't have a strong interest in whether you apply that rule here or leave it to the third circuit. But I think respect for the Court of Appeals and the integrity of the Surshirae process suggests that you should take the petitioner, the petition that its word and decide the case on those terms. Court has no further questions. Why, I have one. Why does it matter that it is a fraud claim, rather than whatever the claim is, fraud has been used to prevent the plaintiff from noticing it? So if you understand Bayley as an application of more general equitable principles that grant relief, not just from fraud, but from fraudulent concealment and other kinds of extraordinary circumstances like the earthquake, then we don't think it does matter. Bayley, I think, is best understood as applying those general principles in the particular context that was recurring at the time of fraud claims. So if you understand it that way, there's no rigid boundary. Bayley is simply explaining how those general principles apply in a particular setting. If instead you understand Bayley, however, as a rule of statutory interpretation that departs from the way we ordinarily read statutes, then we'd suggest you should apply that exception, that departure on its own terms rather than expanding it as I think the petitioner had suggested in the briefing. But again, if you understand it as an application of equitable principles, you don't need to draw a line between the rather than the underlying claim which was Bayley focused on the object or foundation of the suit or other examples like Homebird, which wasn't a fraud action, but involved fraudulent concealment. If you view those cases of a piece as involving general principles of equitable relief and everything hangs together. Councillor Neill. Thank you, Councillor. Thank you, Councillor. Five minutes, Mr. Gant. Thank you, Mr. Chief Justice. Perhaps ambitiously I will try and quickly make five points that I hope address some of the questions raised by the Court this morning. First, there's no question that this Court, although when Bayley and Homebird were decided it didn't use the label discovery rule in more recent cases like Murkin, Gaubele, has clearly identified a discovery rule which I think under the best reading is separate from equitable talking. The second point is that there's an argument advance in the briefs and today by both Council for the respondent of the United States that the issue is whether a statute is all or nothing, either a common law discovery rule applies to every claim under the statute or to none at all. That view is unsupported and contradicted by Bayley exploration and Homebird itself. Bayley was a bankruptcy court, a bankruptcy act case, exploration dealt with the statute concerning land patents and Homebird concerned the Federal Farm loan act. Those were not case, the Homebird Bayley rule applied to a subset of cases under the statute where the doctrine otherwise applied. It wasn't all or nothing as my friends suggest. The third point concerns confusion about the relationship of the doctrines. Mr. Bond said that the Court has in the past sent mixed signals. I think that's a fair characterization and I think that unfortunately those mixed signals cause confusion both on the part of the parties and in the courts below. In Gavelli and Footnote 2, this Court observed that the second circuit in the case being reviewed had was adding to inequitable tolling claim. The requirement that there be some action in addition to the cause of action that caused the concealment. That is the same idea that is present in Footnote 5 in the Third Circuit's decision below, where what the Third Circuit said. And this wasn't, this was for the Court. It wasn't just on behalf of those four members who would have wished to review equitable tolling. The Court as a whole said, our precedent has not previously recognized that a defendant's self-concealing conduct may be the basis for equitable tolling. So the Third Circuit, which by the way had gone on Bonk Suisponte, was recognizing that previously its own cases had said that there had to be some additional acts, not that self-concealment alone wasn't sufficient for equitable tolling. That was the reason why that equitable tolling was not pressed below because under existing Third Circuit law there was a requirement for some additional action, which Petitioner's Council did not believe was present here. The next point is concerns this question of whether the discovery rule is a matter of an exception, an equitable exception to a statute which is imposed by courts themselves or whether it's statutory interpretation. The touch done in either case as Justice Kagan, I believe, was alluding to, is congressional intent. And we believe that Congress here, when you look at the statute as a whole, not ignoring this as a language in 1813D, but the statute as a whole, including its purposes, including its exhortation that it wanted to eliminate the practices at issues, clearly would not have meant to foreclose a lawsuit by which presented facts like Petitioner's facts here. The final point I'd like to raise concerns, sorry, one other point related to that. I believe I heard Council for the Respondents say that under his view, the discovery rule is a subset of equitable tolling

. Chief Justice. Perhaps ambitiously I will try and quickly make five points that I hope address some of the questions raised by the Court this morning. First, there's no question that this Court, although when Bayley and Homebird were decided it didn't use the label discovery rule in more recent cases like Murkin, Gaubele, has clearly identified a discovery rule which I think under the best reading is separate from equitable talking. The second point is that there's an argument advance in the briefs and today by both Council for the respondent of the United States that the issue is whether a statute is all or nothing, either a common law discovery rule applies to every claim under the statute or to none at all. That view is unsupported and contradicted by Bayley exploration and Homebird itself. Bayley was a bankruptcy court, a bankruptcy act case, exploration dealt with the statute concerning land patents and Homebird concerned the Federal Farm loan act. Those were not case, the Homebird Bayley rule applied to a subset of cases under the statute where the doctrine otherwise applied. It wasn't all or nothing as my friends suggest. The third point concerns confusion about the relationship of the doctrines. Mr. Bond said that the Court has in the past sent mixed signals. I think that's a fair characterization and I think that unfortunately those mixed signals cause confusion both on the part of the parties and in the courts below. In Gavelli and Footnote 2, this Court observed that the second circuit in the case being reviewed had was adding to inequitable tolling claim. The requirement that there be some action in addition to the cause of action that caused the concealment. That is the same idea that is present in Footnote 5 in the Third Circuit's decision below, where what the Third Circuit said. And this wasn't, this was for the Court. It wasn't just on behalf of those four members who would have wished to review equitable tolling. The Court as a whole said, our precedent has not previously recognized that a defendant's self-concealing conduct may be the basis for equitable tolling. So the Third Circuit, which by the way had gone on Bonk Suisponte, was recognizing that previously its own cases had said that there had to be some additional acts, not that self-concealment alone wasn't sufficient for equitable tolling. That was the reason why that equitable tolling was not pressed below because under existing Third Circuit law there was a requirement for some additional action, which Petitioner's Council did not believe was present here. The next point is concerns this question of whether the discovery rule is a matter of an exception, an equitable exception to a statute which is imposed by courts themselves or whether it's statutory interpretation. The touch done in either case as Justice Kagan, I believe, was alluding to, is congressional intent. And we believe that Congress here, when you look at the statute as a whole, not ignoring this as a language in 1813D, but the statute as a whole, including its purposes, including its exhortation that it wanted to eliminate the practices at issues, clearly would not have meant to foreclose a lawsuit by which presented facts like Petitioner's facts here. The final point I'd like to raise concerns, sorry, one other point related to that. I believe I heard Council for the Respondents say that under his view, the discovery rule is a subset of equitable tolling. I could understand why one would come to that view, given the confusion in the doctrine. I've set out a different view which we think is the better understanding. But if their view is correct, then I don't know how they can argue it was waived. If the discoverer, the Homeberg Bailey rule, is a subset of equitable tolling, we pressed the Bailey Homeberg rule below. Those cases were cited in the supplemental briefing after the Court decided to go on bonk. So I think the assertion that the arguments that were presented here were waived are incorrect. The final point concerns Respondents' challenge to the sufficiency of the complaint. The district court in the Third Circuit here understood exactly what was at issue. I must candidly acknowledge that the complaint here was not a paragon of clarity. It could have been done better. And if we were given the opportunity on remand, which we would, because rule 15 provides for a liberal amendment of pleadings, we would make clear that the challenge conduct violates 1692, E and F of the statute, which we believe clearly falls within the ambit of the common law discoverer rule. Unless the Court has further questions, I thank you. Thank you, Council. The case is submitted.

We'll hear argument next in case 18328, wrote Kiske versus Klem. Mr. Gantt? Mr. Chief Justice, and may it please the Court. While this case is about the FDCPA, it is also fundamentally about the relationship between this Court and Congress. That relationship has long been governed in part by two important presumptions relevant here. First, that Congress legislates against the backdrop of the common law. And second, that Congress legislates aware of this Court's decisions. When Congress enacted the FDCPA in 1977, this Court had long ago adopted a common law rule, eventually known as the Discovery Rule, applicable to cases of fraud and concealment. Siding to and quoting the Bayley decision of this Court from 1875 in Homeburg in 1946, this Court stated that it had long ago adopted as its own the Old Champsary Rule. They were 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 will be no special circumstance or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party. The Court then continued in Homeburg explaining unequivocally, this equitable doctrine is read into every federal statute of limitation and added even those where quote an explicit statute of limitation for bringing suit, close quote. The United States concedes as it has in prior cases that there is a common law discovery rule applicable to fraud and concealment. In the decision below, the Third Circuit never mentioned the Homeburg case. Its analysis began and ended with two words in Section 813D, violation occurred. The Third Circuit understood that those two words by implication, not expressly, but by implication, that's at appendix page 8, displaced the common law discovery rule applicable to fraud. In reaching this conclusion, the Third Circuit deployed what I believe is a false dichotomy. What the Third Circuit described on the one hand is an occurrence rule and on the other hand a common law discovery rule. And in the view of the Third Circuit, if a Congress deploys in a statute, a so-called occurrence rule, a common law discovery rule is presumed to be displaced. The Third Circuit cited no decision of this Court in setting forth this dichotomy between an occurrence rule and a common law discovery rule that analysis that page 6 of the appendix. That conclusion of the Third Circuit is also an opposition to this Court's decision in 1918 in the Exploration Cates, which is discussed at length in our brief in the briefs of the other parties. There, that is, I think, fairly characterized as an occurrence rule. The statute and exploration ran from the date of issuance of a land patent. So that was a date certain tied to facts. That, under the theory of the Third Circuit, and my friends is an occurrence rule, and they are the Court determined that the common law discovery rule should apply. Ms. Agant, you keep saying fraud and self-concealing as if they are alternative rules. I think of there being multiple equitable doctrines, equitable tolling, equitable a stopper, and what I call the self-concealing fraud, which was the one mentioned in an exploration argued by the government in Gabelli and in other cases. Are you creating a fourth? That every case, every Federal statute inherently says, for whatever reason, if you didn't discover the fraud, equity could let you have a discovery rule. No, we are not intending to proper the rule. In fact, what we are attempting to do is advance the application of the already established rule, the Bailey-Homebook rule, and my friend. The point that I call it the self-concealing rule is that the fraud you committed is by its nature self-concealing. Is that an accurate way of stating that rule? I think so. We are not intending to differentiate. All right. Then what do you make a footnote five in the Third Circuit's opinion? Because four of the, I guess, their justices or judges there, judges would have remanded to allow the district court to consider whether he would be entitled to rely on this doctrine being the self-concealing rule. Because our President had not previously recognized that a defended self-continent concealing conduct may be a basis for equitable tolling. That seems to me that they understood the same thing I did, which is that there might be a self-concealing rule, but that you had waived it. And that's why those four judges were invading to remand. How do you read that any differently? This is as good a time as any to get to an important issue here, which is the confusion understanding of relationship between what I'm calling the common law discovery rule, the Bailey-Homebook rule, and the refrain I was using of fraud or concealment comes from TRW directly, which is why I was using it, but not intending to create the different doctrine. All of the parties here and the scholars, Amicus brief, that was submitted all agree that there has been at times confusing use of terminology. And I think it is impeding an understanding of what is really going on in the courts below and this case, and in the Third Circuit's discussion of these issues, including in footnote five that you referred to, Your Honor. So let me, if I may, in trying to answer your question, set forth what I think is the best understanding of the discovery rule on the one hand, the equitable tool and rule on the other hand, and then try and bring it directly to your question of what I understand the Third Circuit to have been doing in footnote five. Our view is that the best understanding of the discovery rule is that it applies when the plaintiff is unaware of their cause of action or the facts giving rise to the cause of action here, the violation because of fraudulent conduct or self-concealing conduct by the defendant. And in that situation, the clock for the statute of limitations does not begin to run at all. Equitable tolling, on the other hand, applies, we think, best understood in a situation where the plaintiff is aware of the violation giving rise to a cause of action. But for some reason, applying the elements set forth in this court, exercise due diligence or diligently pursued his or her rights, but was unable because of some extraordinary circumstance to timely file suit, then if the doctrine is deemed to apply, then the untimely filing is forgiven. And in that circumstance, the statute of limitations is best understood to have begun to run, but then be told or abated because of the circumstances. That's our understanding of these rules, and that's the same understanding, I think that the scholars said forth. And it's under that view, equitable tolling would be best understood as not applicable to this situation. Now, this Court, I respectfully submit, has sometimes used the label of equitable tolling to describe to circumstances that I think are best understood as the Bailey Homework Discovery Rule. And that has caused confusion here and and in courts below, and I think it did cause confusion in the third circuit. And the third circuit appeared to operate under the view at the time this case was decided that self-concealing conduct did not qualify, that there had to be some separate act apart from the elements of the offense. In addition, that was concealing, an example that I'm familiar with from my own practices in antitrust cases, where although they use the label of fraudulent concealment, which I think is best understood separately as a close cousin of the Discovery Rule, in those circumstances, you have a violation alleged of, say, Section 1 of the Sherman Act, a conspiracy. And most cases, when there's a statute of limitations argument that the contact went back more than the four years provided in the statute, there's an argument about whether the conspiracy was concealed. Most courts there require some additional action in addition to the, there the conspiracy itself. I'm sorry to interrupt, is the Discovery Rule equitable? I believe it is. But I think it is equitable, but also properly understood as an exercise in statutory interpretation. I don't think there are many reasons. I'll grant you that. So the Discovery Rule could be part of a statute, but if it's not part of a statute, there exists, I think you're saying, an equitable Discovery Rule as well that is akin to, but maybe not the same as equitable tolling. Is that your argument? Yes to the last part of that, that that quote was. Can you just give me a real clear on the answer to, because clarity, we do need clarity. I will do my best. I agree that that's useful for everybody. There's a distinction between statutory Discovery Rule, obviously, and the common law Discovery Rule. The statutory Discovery Rule is employed by Congress from time to time. It was present in, it's here W, for example. That was, in my understanding, the basis for the ruling in that case principally was that Congress had decided to statutorily write in a Discovery Rule and then apply traditional tools of statutory interpretation to determine that it wouldn't then also add on the common law Discovery Rule. So when there is an absence like here of a statutory Discovery Rule, then the question becomes to Congress intend to permit or displace the addition or the words of Gabelli, the grafting onto, which I don't view as pejoratively, but I think my friends on the other side attempt to use that way. Grafting onto or importing into, the statute of common law Discovery Rule. You use common law Discovery as had equivalent to equitable discovery. I think it's the doctrine that originated in equity, but also applied to cases of law. The Court said that back in Bailey, the doctrine had its origins in equity applied to law, and it is applied. And I think, and here's where I think that it's both equitable in origins, and I think in nature, but also fundamentally an exercise in statutory interpretation, because the touchstone is whether or not it intended, Congress intended to foreclose or permit the application of the common law doctrine to the statute in the absence of some express indication. And if you are arguing and across the board Discovery Rule applies to the FDCPA, I think the TRW weighs very heavily against you. So you could be arguing across the board Discovery Rule, or you could accept that there is a fraud exception. You seem to be arguing the first that in the, there's a Discovery Rule for all FDCPA cases. Justice Ginsburg, we mean the latter. So, except the fraud exception, but then the government tells us that this case doesn't fit within the fraud exception. And it clearly does. So just to be clear, we're not arguing that every FDCPA action is timely so long as the plaintiff was unaware. What we're saying is that if they were unaware because of circumstances that fit within the Bailey homework framework, fraud that prevented the plaintiff from knowing about their cause of action under that longstanding doctrine, then the plaintiff is permitted to file out of time. Is it? It's not a violation. What happened here serving the debtor at an address that was not the debtor's? That's not a violation of the FDCPA, is it? Onto itself, it might not be, but we have a very different circumstance in this case. So the facts that are alleged, and you'll recall that this case comes to the court on a ruling on a 12 B6 motion. So of course, the court can choose the allegations, except the allegations as true. The allegations is made and is understood by the lower courts or as follows. The respondent retained a process server to serve file to complaint against my client. There was an affidavit of service filled out that said that the head of the household had been served. And that was false and they had in the wheeledge in the facts below a certain, they had reason to know that that was false. So they filed a false affidavit of service and that false affidavit of service was then the basis for a default judgment. So it's those two actions together. The filing of a false affidavit of service and then obtaining a default judgment on that basis that we contend violates sections 807 and 808 of the statute, which were codified at section 1692 E&F. Those prohibits any false deceptive or misleading representation or means of pursuing a debtor. And the issue, I don't think the issue is, is your basic claim, a claim of fraud. And the other. And it doesn't sound it. I mean, who did you fraud? The judge? Yes, the, the, where, was it? I've never heard of a case brought under this. Where the fraud, you, I mean the cases that were brought, where somebody said, get me your land and I will, because the land has gold or something on it, that was a lie. So by my land, it has gold on it and they sell the land and it doesn't have gold on it. That's sort of fraud, okay? But I've never heard of a fraud case. I'm not saying you may, you may be actionable. I mean, it may be that you recover under the statute. It may be a bad thing, but it doesn't sound like common law fraud to me. So is there something where the person who defrauded is a judge, because the process server, rightly or wrongly, filed the wrong name? But that's what you're saying is a common law fraud. Yes, the, and then what is the, what is the, what is the, what is the, what is the, what is the case that says a process server who fills in the wrong name and fools the judge, is the person who hired the process server is, has committed common law fraud. Well, it's not, with respect to Justice Breyer, it's not just the process server and the allegations go further than an innocent mistake. And the other side argues that this was an innocent. I'm asking you, what here brings your case within the rubric of common law fraud. So if we had Lord Cook in front of us, you see, he would say, oh, I recognize this old man still recognizes that this is common law fraud. That's what I want to know. And our allegation is that the, the, the, the knowing misrepresentation on the affidavit service or reckless representation, we cite to bloodline. Who represented, who writes the representation of the process server or the, or the, or the, or the person? The process server signs signs under, effectively under penalty of purger. Yeah. That the representations are true. They were false and we can make the representations. The process server makes the representations. Oh, so are you, are you your client, the process server? No, that, that's why it is not. That was the next point, which was that then the attorneys are the ones who file the affidavit of service, which we contend they had reason to know was false. And then the, the attorneys then prosecute the case of, in a, I know the latter part. I got the latter part. That's the harm. But, but the, the, the fraud consists of an attorney making a knowingly accepting the false statement of a process server. Now, the closest case that you have found that calls that activity common law fraud is. We didn't look for a specific case, you were. No, you didn't, because it's so obvious that it's common law fraud. Well, if, if you may not find the satisfactory, but we weren't the only ones here who thought that this constituted fraud, the solicitor general's brief, I believe it's a page 20. No, no, I'm not, I'm not that. I'm just trying to find out by myself, and I, and I'm not certain that's why I'm asking. And, and so the solicitor general called this akin to fraudulent concealment. A akin to, you know, wait, that's totally different thing. Your discovery, look, I might buy below this is Judge Posner's opinion in the Cotta case. So if that's wrong, you better stop me now. But I've read that about it. I don't know whether it's wrong because I haven't read it, so I won't stop. Well, it's a very good list of all these different doctrines, equitable, a stop-all, equitable list, and they're like six of them or something. And one of them, the thing that you're talking about now is a special thing called, what's it called, undiscovered fraud. I thought an element of that is that the basic underlying thing is common law fraud. And that's what I'm trying to investigate now. That if you have nothing more to say, I have nothing more to say because I knew more about it, I wouldn't ask the question. I don't have a case, I wish I did. Obviously, that is something that could be, and we respectfully submit, should be addressed on remand. Not only the solicitor general, but one of the amici, the trade, the major trade association for the creditors, the ACA, also acknowledged in their brief that what's at issue here, it has a name, it's called sewer service. It's so prevalent that it has a name. There was testimony before Congress when the FTCPA was enacted. A representative from the FTC came to Congress at the beginning of the hearings that led to the enactment of the statute. And August of 1976 said that this phenomenon, which is that issue here, sewer service, is a major problem in many urban areas. I read you said the statement was the process server. The process server was told by the creditor, served process at this address. So it wasn't the process server didn't make it up. The process server was told where the process should be served. The process server, and I think it's helpful to understand for context here, there was an original suit that was withdrawn, which also had a defective affidavit of service. And then a subsequent one that led to the default judgment at issue here. It was the same process. Kagan, you know, the process server was just following the directions of the person who engaged the process server. Well, they were certainly following the direction to serve process. There's nothing in the record that indicates the substance of the discussion. We do know that the first service was attempted in an address. And it falsely represented that the plaintiff was personally served. He was not. It also represented. He was black, according to the affidavit of service. He's not. He's Caucasian. It represented. He was 51 years old. He was in his late 30s at the time. That was added. And so they had reason. And then that suit was withdrawn. We believe because they knew that the affidavit of service was false and that the plaintiff didn't actually live at that address. Then a new suit was filed and a new affidavit of service, the one issue, was- Kagan, yes. I know it is terribly confusing because of the confusion of the use of terms. That's why I called it a self-concealing fraud. It's not the violation at issue that's self-concealing. It's how the violation came about that could be by self-concealing fraud, correct? Isn't that your point? We believe that the common law discovery rule, the Bailey-Homber rule, can apply either if the fraud is an element of the offense, which it effectively is your under our view under subsections E and F, or it can be separated apart in addition to the elements of the offense. So here, there have been several questions, so I want to, if I could, just make this clear because I think the facts are important and they should be addressed on remand. And we're not saying we win on remand, the other side will get to make its arguments including that we don't fit with the macontors of fraud. But we believe that this is close- the decision below was you don't get a common law discovery rule applied to the statute period. That was wrong. That should be reversed and we should have an opportunity then to have arguments about these issues, whether the approach of the view of Justice Breyer is right, or at least your arguing hypothetical, you know. For arguments sake, the view of Judge Posner that this might fall outside common law fraud, we don't think it does. We cited black's law dictionary. In my view, this falls squarely within the contours of common law fraud is described in black's law dictionary, which is a misrepresentation. It was a knowing misrepresentation of the Court. They served at an address that they knew was not his. They said they served ahead of the household, and that was false. And then they used that false affidavit made sworn under oath, the attorneys then went into court, and used it as the basis for obtaining a default judgment, which then prevented my client from obtaining a mortgage which he still doesn't have to this day. You've referred to remand a few times. I think the other side's argument is that the statute itself does not have a discovery rule and that any equitable discovery rule, or as you're terming a common law discovery rule that might exist in less Congress expressly displaces it, was not raised in the third circuit. Your response to that? I'm sorry. What wasn't raised in the first century? Equitable discovery. It is true that equitable tolling per se was not addressed in the third circuit. But Homeberg and Bailey were both cited to the third circuit, and at the time it was clear in the first. I think what they're saying, and this may not be a winning argument, but I just want to get your response to it. I think what they're saying is those were raised in the context of statutory interpretation reading the statute. It does not contain a discovery rule. There may be still an equitable discovery rule, but you didn't separately, I think they're saying this, you didn't separately raise that kind of equitable discovery argument. Your response to that is that wrong. They are wrong in their understanding of the operation of the two words violation occurred, and it's effect on whether the common law discovery rule applies. We say that that language is inconclusive with respect to the question of whether or not Congress intended to permit or preclude the application of the common law discovery rule, and we then urge the Court to apply traditional tools of statutory interpretation to look to the statute's purpose, to eliminate these debt collection practices that are prohibited, the structure of the statute. We discuss this a length and a brief, and based on those factors, we believe it's clear that Congress would have intended for the common law discovery rule to apply to this. Kagan, what about your petition in this Court? Because as I read your petition in this Court, it was more about the general statutory interpretation question, whether there is a discovery rule that applies generally in this statute, than it is about whether certain equitable exceptions might continue to exist. You're referring to the petition for search theory? The petition for search theory clearly presented the discovery rule for consideration. And again, what did that mean? Well, as I read the petition, it really did not address whether there was an equitable exception of the kind that the Third Circuit might have thought had been waived. Well, that certainly wasn't how it was intended, and I'll, you may know, I didn't draft that. I don't read it that way, and I know for certain that that was not intended to exclude that. What may I finish? What was intended with the petition was to raise the question precisely as I attempted to present it this morning, which is whether or not Congress intended to permit or for close the application of the common discovery rule to the statute, and we contend that Congress clearly did not intend to foreclose it. Thank you, counsel. Thank you. Mr. Muratsky? Mr. Chief Justice, in May of pleased the Court. Mr. Gantan, I agree that this case is about the relationship between this Court and Congress. Congress provided in the FDCPA that the statute of limitations would begin to run when the violation occurs, not when it is discovered. That answers the question presented in the Serpentition. The plain meaning of violation occurs concerns when the defendant commits the violation, not when the plaintiff learns of it. Unlike more ambiguous phrases like claim accrues or liability arises, violation occurs simply can't be read any other way. And we know Congress itself understands violation occurs that way, because in other statutes, including the 1978 Right to Financial Privacy Act, Congress used the phrase violation occurs to distinguish an occurrence-based limitations period from a discovery based one. Why position simply did I let you finish? I think you still have a little time left, don't you? Oh, sorry. Well, like Justice Ginsburg and Justice Kagan, I understand the question presented here to be whether in across the board discovery rule applies to the FDCPA. That's the only issue that the Third Circuit decided. The Serpentition does not cite Bayley or Holmberg, doesn't mention the word fraud. If it had, we might have had an argument in our briefing opposition for why this case doesn't present a fraud case and therefore would be an inadequate vehicle to consider that question. So the only question before this Court should be whether there's in across the board discovery rule. Despite all of that, Mr. Gantt focused his argument this morning on the fraud cases. There are a number of reasons why the fraud cases don't ultimately help him. I'd like to start out focusing on one, which is those cases are properly understood as equitable tolling cases, not as discovery rule cases. That's how this Court most recently characterized them in cases like ANZ and in Luzano, and it matters for four reasons that the terminology be used correctly and that we distinguish between discovery rule and equitable tolling. The four reasons are the following. First, the two doctrines of discovery rule and equitable tolling are different concepts with different sources. The discovery rule is about how to read the words Congress writes in a statute. It's a statutory interpretation question. That's the exercise that the TRW was engaged in. Equitable tolling is about excusing non-compliance with the words that Congress has chosen. It is an application of Court's inherent equitable powers, confirmed in the Judiciary Act, which exists independent of what Congress has said in any particular statute of limitations. As a result of that, and this is my second point, the discovery rule and equitable tolling have different scopes. The discovery rule. But I thought that the Justice Scalia and my opinion in TRW spoke about the discovery rule, not equitable tolling, exception to the discovery. Does this discovery rule could apply cases of fraud? I think what TRW was talking about was that the discovery rule might apply to fraud statutes. That's different from saying that there is a discovery rule in any case of fraud that happens to arise under a non-fraud statute like the FBCPA. The words violation occurred, occurs, have to mean the same thing no matter what the underlying type of FDCPA violation. It can't mean violation occurs in a non-fraud claim, but violation occurs or is discovered in a fraud claim. And that's why the way to think of excusing non-compliance with a limitations period in a situation that did present fraud would be as equitable tolling. Because equitable tolling is a case-by-case doctrine in which courts use their inherent equitable powers to excuse non-compliance with the statute on particular fact. I mean, there might be variants of equitable tolling. Might not be there. I mean, one variant is there were extraordinary circumstances in Earthquake hit. And so I couldn't file this suit in time. And so you should toll the statute of limitations until I can. I mean, that would be one. And then a different one would be this kind of, I couldn't possibly have known that the statute of limitations had even started to run because there was fraud committed against me. Is that right? I mean, you can put them all under an umbrella label, but those are two different things, aren't they? I agree that they would be under the same category of equitable relief because in both situations what a court would be doing is not applying the language that Congress wrote. Congress didn't say anything about earthquakes, but Congress would be excusing compliance with the language, the Congress, I'm sorry, the court would be excusing compliance with the language that Congress wrote based on either the earthquake or fraud. What those have in common is that they are under the bucket of equitable relief from what Congress wrote rather than- So, if those are foreclosed by the statute or is your view simply that those arguments were waived, and this case has nothing to do about them, with them. Our argument is that those arguments were waived. They're not properly before this court. The only question before this court is how to read the words that Congress wrote, and when Congress wrote the words violation occurred, it didn't leave the door open to read that across the board in every FDCPA case as violation occurs or is discovered. So, you are not taking the position one way or the other about whether those equitable defenses can be raised. I don't think that is presented by this case. The issue hasn't been brief. The Third Circuit didn't, the Third Circuit held that it was waived. It's not presented in the circuitition, and simply not part of the problem. So, it's an open question. If you have a typical, I don't know if it's typical, but equitable tolling situation, there are hurricane, you know, whatever, even the courthouse's closed sort of thing. Even though you're dealing with a statute of the sort you have here, those claims could certainly be raised. Or at least you think it's an open question. We are not arguing that that's foreclosed by this statute. We're saying that issue is simply not presented by this case. So, and similarly, the Bailey kind of equitable rule. You're also saying that you're just not saying. We're saying that it wasn't preserved, and therefore is not properly before this court at this stage. There's no reason to remand on a question that all members of the N.Bank Third Circuit Court held was waived. Four members went out of their way to point out in footnote five that they would have remanded if only had been preserved, but it wasn't. I suppose what you have to maintain, though, is that equitable tolling has a higher or different threshold than simply a discovery rule. And that is actually, I said I had four reasons why I think the discovery rule and equitable tolling are different doctrines. That's the third of them, is that I think equitable tolling has a higher bar. Equitable tolling applies, or only in extraordinary circumstances, which, as this court said in Rhotela, which distinguished between the discovery rule and equitable tolling, that's a virtue of equitable tolling that it's the exception not the rule. If the court is going to exercise its inherent equitable powers to override the language that Congress has written, that should be something that only happens in unusual exceptional circumstances. And I should look at my recollection of Katta and so forth. One, the statute might provide for tolling. That's the argument in front of us. You say no. He says, yes, you're going on the words. A second basis would be equitable tolling. The Court House blows up or so hurricane. That's not here. Forget it. The third is sometimes called equitable as stop-all, and that's no man should benefit from his own wrong. That might apply here, except for the fact that the third circuit said absolutely waived, he never raised it and so forth, and he doesn't even claim he raised that with. But there is a fourth one. And the fourth one, which Justice Scalia said in this case, is out of Bailey, which applied from Lord Cook or something and is of ancient origins, and that's if your basic claim is a claim of fraud. If your basic claim is a claim of fraud, there is a tolling rule. Now, one, was that ever raised clearly, probably not. Two, is the basic claim here. It was a claim that this is an uncollectable debt, not that it was a fraudulent debt. I take it that the basic claim was not fraud, but I'm not sure on other abose points. So should we send it back on those points? Kagan No, and let me unpack that question and make three different points about it. First, the Bailey line of authority, as Judge Posner described in that seven-circuit case, still fits within the category of equitable relief from the statute rather than interpreting the statute. And the only question presented in the circuit, is that aside even what happened in the third circuit, in the circuit here, is the question of statutory interpretation. The circuit, the Bailey doesn't mention fraud. It would be quite out of the ordinary for this Court to remand for consideration of a question that the lower court considered waived and didn't decide, and that the petitioner didn't even raise in the circuit, itself. So that's one answer. In the second point. If we don't agree with you, this is under the rubric of equitable toll. I mean, I talked to Justice Scalia, was very clear when he said, the discovery rule, as a general matter, doesn't toll when your statute of limitation triggered by the, what was the occurrence of the violation. But he said there is an exception to the non-application of the discovery rule for fraud. We have recognized historical, historical exception for cases based on fraud. Justice Ginsburg, the Court, and it pains me to say this, Justice Scalia, have not, have not always been precise in their use of this terminology. But where it has mattered, the over-nose grave hearing that, what were it's not? Where it has mattered, where it has been dispositive of an issue such as in ANZ. The Court has been careful to distinguish between equitable doctrines, equitable tolling, and the discovery rule. And that is, that is really the only way to read these cases, Bailey and Holmberg and Exploration Co. They are best understood as equitable cases because throughout those opinions, the Court is talking about the exercise of traditional equitable powers. And those cases are not engaged in statutory interpretation. If you look at a case like Bailey or Holmberg, it is not doing the same thing as TRW. It's not even, Holmberg, for example, was not even asking the question, how do we have a cause of action accrued? It's not even a question of what that language means. It's simply creating an exception to it. And that is the better way to understand those cases. In any event, even if there were some sort of a fraud discovery rule, that still wouldn't help here for three reasons, one of which is the waiver which I've talked about, two, even if there is a background, even if there were a background fraud discovery rule, Congress could still overcome that. It would still only be a presumption. And the language that Congress used here, violation occurs, would overcome any common law discovery rule. You know, I think that. If a patent issued, which is like what a violation, when a violation occurs, we still apply the equitable doctrine, the concealment doctrine in exploration, even though the language is aroma identical. So how do you separate exploration from here? Q. Because I think what the Court was doing in expiration code is best understood as equitable tolling, not as reading that language about the patent issuing to mean patent issuing or is discovered. This goes to the fundamental question, what is the Court doing? Is it interpreting language like patent issued or violation occurred to mean something other than what it says, or is it exercising the Court's inherent equitable power to override what the language says? Q. So are you saying there is no concealed concealing fraud whatsoever that the very act that you do, this is what they are claiming, the very act that you are alleged to have done, doesn't wouldn't qualify, assuming, and I know that you take issue with whether you really knew that was his address or not, and whether the lawyer just made a mistake in not seeing his own files, I want to put all of that aside. Let us assume for the sake of argument that the lawyer knew this wasn't the address, that the lawyer knew the process server had affected sewerage servers. And yet he intentionally lied to the Court and held on to his judgment until the Statute of Limitation passed. Do you believe that there is no common law, self-concealing fraud there? Q. Um, I don't think that that is common law, self-concealing fraud. I think that that might well qualify for equitable tolling. You don't need to put the fraud label on it for it to be equitable tolling. In a case where the Court actually decided that equitable tolling was properly presented and preserved. But I don't think that that would be common law fraud because it does not involve an intentional misrepresentation. That's not a bad thing. Q. Not sure that it's defendant, but to the Court, it's still conduct that would be fraudulent, maybe not on the defendant, but certainly on the Court, and why should that deprive the defendant of a cause of action? Q. It's actually alleged, and if it's dealt with as equitable tolling, rather than reading language like violation occurs to trigger the limitations period upon anything other than when the violation occurs. With respect to this case, though, it's not just the waiver in this Court and in the Third Circuit. I'd also direct the Court to the complaint in this case. It's a three-page complaint, and it's in the Court of Appeals appendix at 6A. The operative complaint itself does not allege what is now being described as so-called sewer service. The operative complaint alleges that the debt collection lawsuit here was filed out of time, and that as a result of what happened with the improper service, the plaintiff was entitled to equitable tolling on that claim because he didn't learn of the untimely lawsuit. So on a 12-B motion, which is what we're dealing with here, we are miles removed from the sorts of allegations in some of the amicus briefs about different cases involving sewer service. I make sure I have the terminology correct, sorry, on a couple of legal points. So on the discovery role, there's a discovery role linked to fraud, as Justice Ginsburg said, you first look to whether it's in the statute, you say no. If it's not in the statute, if you're correct about that, you see if there's some kind of, there's an equitable discovery doctrine also linked to fraud that can apply. But your argument is that no equitable doctrines were raised here, and therefore we shouldn't consider the scope of how that might apply. Is that accurate? I think that would be a good opinion. Okay. The other part of that is you were making an argument that the words of the statute here expressly displaced, equitable discovery, and I think that's a shake here. Argument, because that would mean any time it's not in the statute itself, it's also meaning discovery, it's also expressly displaced. You don't need this argument to win, but you are giving it as an alternative, and I want to press you on that. So that's actually not the argument that I am intending to make. Okay. I don't think that Congress needs to expressly say no discovery role in order to foreclose the discovery role. If you had more ambiguous language, I know you're not saying that. I'm saying that. I'm saying that. You don't think that Congress has to say no equitable doctrines. But even for the statutory discovery role, I don't think Congress has to expressly foreclose a statutory discovery role in any situation where let's say you had like a lot of that. I agree with you on that on the statutory discovery, because I'll just assume I'm with you. But there still exists, I think you just said, a kind of equitable discovery role in less Congress has displaced that. And I would assume there's a higher bar for Congress to expressly displace the equitable discovery than there is for whether it's in the statute in the first place. I agree. And the only tweak that I would make to, I think the way that you formulated all of that, I view the equitable discovery role just as a species of equitable tolling. If like Judge Posner, you want to list out all seven different kinds of equitable doctrines that allow a court to override what Congress has written, that would be one of them. But I think the more helpful way to think of it is that there are two categories. There's statutory interpretation. What has Congress provided as the rule to apply across the statute in every FBCPA case? As to that question, violation occurs, means violation occurs, not discovered. Then there's another bucket of various equitable doctrines that can be invoked under the court's authority to override statutory language. None of those are presented. I think that that distinction is helpful, but I want to push back on it a little, because it's all statutory interpretation, isn't it? I mean, as long as we understand that Congress could say, and no equitable doctrines shall apply either, then in some sense we're doing statutory interpretation, even when we say that Congress didn't displace equitable doctrines, aren't we? But, sure, there's always the question of whether Congress has overridden the longstanding equitable power of the court to itself override the statutory terms that Congress has used. So there is a statutory interpretation question there. But the difference between the equitable doctrines and the discovery rule, as I'm using that term, is that there is a presumption in favor of the availability of the court's equitable powers, and there's a higher bar that Congress has to use in order to foreclose that, if we're in the equitable bucket. You need something akin to a plain statement to get rid of the equitable doctrines in the statute. You probably are going to frown on the phrase plain statement, but something clear. Something clear this court has often looked to the sort of two parts of the statute. Because they're equitable, so we're not going to assume silence displaces these equitable doctrines. Correct. You're not going to assume silence does, that this court has typically looked to a sort of two parts structure where you would have a shorter discovery-based limitations period coupled with a longer statute of repose. And if you have that, this court has read into that sort of situation that Congress meant to displace equitable powers. Thank you, Council. Mr. Bond. Mr. Chief Justice, and may it please the Court. The question on which this Court granted review and the only question the Third Circuit decided is whether the FDCPA should be interpreted to impose a statute-wide rule that the limitations period does not begin to run until a violation is discovered. That's a question about what the statute means and the text supplies a clear answer. No. Now, Petitioner appears to be abandoning reliance on that broad theory and is now relying exclusively on this argument from Bailey's fraud rule. We agree with Respondent that Bailey's fraud rule does not apply in this case, at least as it's been teed up for the Court for three reasons or three points I'd like to make. Now, first, we agree with Respondent that the fundamental distinction that matters is between interpreting the way a statute of limitations operates and equitable relief from that statute. It's the distinction this Court drew in ANZ in describing American pipe. You've got interpreting and enforcing statutes and you've got equitable relief from the operation of the statute. And it's true that those are all statutory interpretation questions, but they're very different questions because on the one hand, a discovery rule that comes out of the statute has to be in the text and context of the statute, whereas equitable relief, whether it's viewed as one umbrella doctrine or subdivided into several different species, are all exercises of course traditional, free standing powers, courts of equity to relieve parties from the operation of a statute. We agree with Respondent that that difference matters, not just with respect to how clear a statute must be to displace or make clear that that doctrine doesn't apply, but also the scope of the rule that results at the Court of Serbian Rhotela. So to put it in terms of Judge Posner's opinion in Kata, the first category of statutes of cruel rules set forth in the statute, that's our first bucket. Everything else fits into that second bucket. And it's simply a question of whether you sub-divided into a subsidiary categories or not. Now, the second point is where Bailey fits in this taxonomy. And we acknowledge that language in the Court's opinions over the past number of years have sent some mixed signals. To the extent you address it here, we think the better view is that those cases are understood as applications of equitable principles, whether equitable tolling or a close cousin, for three reasons. First, the rule of rows at equity, starting in the Court's own chance and later carried over to Court's law. Second, that's really the only way to understand cases like exploration company where the statute, by its terms, doesn't run from discovery, doesn't leave room for a discovery rule. That can't be read to impose a discovery rule, but it certainly can be understood not to displace background equitable principles. And third, the Court has repeatedly and recently cited Bailey and Homeberg in other cases, including in context where it mattered, as Mr. Duretsky was explaining, on the equitable side of the line. The most recent example, as he noted, is ANZ. And in that case, it mattered whether American pipe was equitable or statutory in nature. And the Court relied on the fact that American pipe had cited Homeberg, which ANZ called a paradigm application of equitable tolling. So we think the Court's most recent and repeated word on this is that it falls on the equitable side of the line. But even if you think there are cases where there are, you have an ambiguous statutory provision and you can look to equitable principles to help you figure that out, that's fine, but that the underlying principle is still equitable in nature. And that would be like the Court's opinion in Merck, where you had an express discovery rule. And the question is, what does discovery mean? So the Court surveyed equitable practice, state statutes, in all manner of things that were relevant to figuring out what Congress meant in that provision. Sotomayor, do you think that that equitable principle is the same as the way the Court has defined equitable tolling? Meaning we have very strict construction under equitable tolling and certain elements to it. Do you think the same apply more broadly to all the equitable principles, or is it a separate principle altogether? So our view, and I'm not sure anything turns on it here, is that it's a subset of that broader equitable principle. You might think of it in terms of the kind of fraud that satisfies Bailey, which is fraud that has either concealed, affirmatively or self-concealing, satisfies by itself the extraordinary circumstance requirement of tolling. And then the second element diligence is just the same across both contexts. So it seems like a subset of the broader principle of equitable tolling, which explains why the Court's decisions in cases where it mattered, not just in ANZ, but in LAMPF and in Ratella, described cases like Holmberg and Bailey as falling into this bucket. So we understand it to fall in the equitable tolling or the equitable relief side of the line. But at the end of the day, to decide this case, I don't think you need to resolve that particular question. If it's any kind of equitable relief, I think Petitioner has disclaimed reliance on that and certainly didn't present that below or in the petition. But even if you think it's a statutory rule that could be read in to every statute, we don't think this falls within the category of fraud claims. As Mr. Duresky was explaining, I don't think the complaint here, the single allegation that concerns improper service paragraph 14 of the complaint, doesn't allow any kind of misrepresentation, isn't premised on fraud. And to the point of amendment, when the district court asked Petitioner's Council, if he would like to amend, and this is at page 104A of the Court of Appeals Appendix Volume 2, Petitioner's Council emphatically said no. So I think that ship has sailed. Ultimately, we don't have a strong interest in whether you apply that rule here or leave it to the third circuit. But I think respect for the Court of Appeals and the integrity of the Surshirae process suggests that you should take the petitioner, the petition that its word and decide the case on those terms. Court has no further questions. Why, I have one. Why does it matter that it is a fraud claim, rather than whatever the claim is, fraud has been used to prevent the plaintiff from noticing it? So if you understand Bayley as an application of more general equitable principles that grant relief, not just from fraud, but from fraudulent concealment and other kinds of extraordinary circumstances like the earthquake, then we don't think it does matter. Bayley, I think, is best understood as applying those general principles in the particular context that was recurring at the time of fraud claims. So if you understand it that way, there's no rigid boundary. Bayley is simply explaining how those general principles apply in a particular setting. If instead you understand Bayley, however, as a rule of statutory interpretation that departs from the way we ordinarily read statutes, then we'd suggest you should apply that exception, that departure on its own terms rather than expanding it as I think the petitioner had suggested in the briefing. But again, if you understand it as an application of equitable principles, you don't need to draw a line between the rather than the underlying claim which was Bayley focused on the object or foundation of the suit or other examples like Homebird, which wasn't a fraud action, but involved fraudulent concealment. If you view those cases of a piece as involving general principles of equitable relief and everything hangs together. Councillor Neill. Thank you, Councillor. Thank you, Councillor. Five minutes, Mr. Gant. Thank you, Mr. Chief Justice. Perhaps ambitiously I will try and quickly make five points that I hope address some of the questions raised by the Court this morning. First, there's no question that this Court, although when Bayley and Homebird were decided it didn't use the label discovery rule in more recent cases like Murkin, Gaubele, has clearly identified a discovery rule which I think under the best reading is separate from equitable talking. The second point is that there's an argument advance in the briefs and today by both Council for the respondent of the United States that the issue is whether a statute is all or nothing, either a common law discovery rule applies to every claim under the statute or to none at all. That view is unsupported and contradicted by Bayley exploration and Homebird itself. Bayley was a bankruptcy court, a bankruptcy act case, exploration dealt with the statute concerning land patents and Homebird concerned the Federal Farm loan act. Those were not case, the Homebird Bayley rule applied to a subset of cases under the statute where the doctrine otherwise applied. It wasn't all or nothing as my friends suggest. The third point concerns confusion about the relationship of the doctrines. Mr. Bond said that the Court has in the past sent mixed signals. I think that's a fair characterization and I think that unfortunately those mixed signals cause confusion both on the part of the parties and in the courts below. In Gavelli and Footnote 2, this Court observed that the second circuit in the case being reviewed had was adding to inequitable tolling claim. The requirement that there be some action in addition to the cause of action that caused the concealment. That is the same idea that is present in Footnote 5 in the Third Circuit's decision below, where what the Third Circuit said. And this wasn't, this was for the Court. It wasn't just on behalf of those four members who would have wished to review equitable tolling. The Court as a whole said, our precedent has not previously recognized that a defendant's self-concealing conduct may be the basis for equitable tolling. So the Third Circuit, which by the way had gone on Bonk Suisponte, was recognizing that previously its own cases had said that there had to be some additional acts, not that self-concealment alone wasn't sufficient for equitable tolling. That was the reason why that equitable tolling was not pressed below because under existing Third Circuit law there was a requirement for some additional action, which Petitioner's Council did not believe was present here. The next point is concerns this question of whether the discovery rule is a matter of an exception, an equitable exception to a statute which is imposed by courts themselves or whether it's statutory interpretation. The touch done in either case as Justice Kagan, I believe, was alluding to, is congressional intent. And we believe that Congress here, when you look at the statute as a whole, not ignoring this as a language in 1813D, but the statute as a whole, including its purposes, including its exhortation that it wanted to eliminate the practices at issues, clearly would not have meant to foreclose a lawsuit by which presented facts like Petitioner's facts here. The final point I'd like to raise concerns, sorry, one other point related to that. I believe I heard Council for the Respondents say that under his view, the discovery rule is a subset of equitable tolling. I could understand why one would come to that view, given the confusion in the doctrine. I've set out a different view which we think is the better understanding. But if their view is correct, then I don't know how they can argue it was waived. If the discoverer, the Homeberg Bailey rule, is a subset of equitable tolling, we pressed the Bailey Homeberg rule below. Those cases were cited in the supplemental briefing after the Court decided to go on bonk. So I think the assertion that the arguments that were presented here were waived are incorrect. The final point concerns Respondents' challenge to the sufficiency of the complaint. The district court in the Third Circuit here understood exactly what was at issue. I must candidly acknowledge that the complaint here was not a paragon of clarity. It could have been done better. And if we were given the opportunity on remand, which we would, because rule 15 provides for a liberal amendment of pleadings, we would make clear that the challenge conduct violates 1692, E and F of the statute, which we believe clearly falls within the ambit of the common law discoverer rule. Unless the Court has further questions, I thank you. Thank you, Council. The case is submitted