Mangum v. Action Collection Service, Inc.

O’SCANNLAIN, Circuit Judge,

specially concurring:

I agree with the court that neither Pocatello nor Bonneville is a “consumer reporting agency” within the meaning of the Fair Credit Reporting Act (“FCRA”). Nor do I object to the majority’s holding that Pocatello is not a “debt collector” for purposes of the Fair Debt Collection Practices Act (“FDCPA”). I also fully agree that Man-gum had no constitutional right to privacy in the bad checks she voluntarily deposited into the stream of commerce. Accordingly, I join Part B of the court’s opinion without reservation.

I cannot concur, however, in Part A, which holds that the discovery rule extends the FDCPA’s statute of limitations to permit Mangum’s otherwise untimely suit. I respectfully suggest that Part A cannot be squared with the plain language of the statute, which starts the clock on the “date on which the violation occurs,” not the date on which the plaintiff discovers the violation. By applying the discovery rule in the face of unequivocal statutory language to the contrary, Part A conflicts with our en banc decision in Garcia v. Brockway, 526 F.3d 456 (9th Cir.2008) (en banc).

Nevertheless, our court’s equitable tolling jurisprudence requires me to concur in the result. Although I believe the discov*945ery rule does not apply, equitable tolling permits Mangum’s suit under Socop-Gonzalez v. INS, 272 F.3d 1176 (9th Cir.2001) (en banc). Socop-Gonzalez, however, was a significant, unwarranted departure from ancient principles of equity. Because I believe Socop-Gonzalez was wrongly decided, I concur specially in the court’s judgment.

I

Camarie Mangum worked as a dispatcher for the Pocatello Police Department between 1998 and 2005. On December 2, 2004, Police Chief Edward Guthrie went shopping at the local SuperSave store. While there, he discovered that Mangum was listed as a person from whom the store would no longer accept checks. Guthrie ordered an internal investigation to determine whether Mangum’s conduct violated department policies relating to moral conduct and professional image.

On December 8, 2004, as part of the investigation, Bonneville provided the department with copies of bad checks written by Mangum. A week later, on December 15, 2004, Mangum met with the investigating officer and became aware for the first time that Bonneville had disclosed the checks. Though she knew within one week that the checks had been disclosed, Mangum waited fifty-one additional weeks — until December 14, 2005 — before she finally sued Bonneville and Pocatello. Thus, Mangum filed suit more than one year after the violation, but less than one year after discovering the violation.

II

The FDCPA’s statute of limitations provides: “An action to enforce any liability created by this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k (emphasis added).

This language is not ambiguous. A “violation” is “an infringement or transgression”; it is not the discovery of an infringement or a transgression. Webster’s Third New Int’l Dictionary 2554; see also Black’s Law Dictionary 1600-01 (Garner 8th ed.) (“An infraction or breach of the law” or “the contravention of a right or duty.”). The “date on which the violation occurs” must refer to the date on which the “infringement” or “transgression” complained of by the plaintiff took place. In this case, Bonneville provided the police department with the checks on December 8, 2004. Mangum’s suit was untimely because it was brought more than one year after such disclosures. That should be the end of the matter.

The majority, however, reaches the opposite conclusion. Without discussing the statute’s text, the majority applies “the general federal rule ... that a limitations period begins to run when the plaintiff knows or has reason to know of the injury which is the basis of the action.” Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1266 (9th Cir.1998). Because Mangum sued less than one year after discovering the disclosures, the majority allows her claim to proceed. The majority appears to be under the impression that our precedent requires us to apply the discovery rule to every non-jurisdictional statute of limitations, regardless of the plain language of the statute.

That is not our law. Rather, we may apply the discovery rule only when the text of the applicable statute of limitations permits us to do so. In Garcia, for example, a tenant asserted that Brockway, the owner of a housing complex, violated the Fair Housing Act by constructing apartments that were not wheelchair compatible. Garcia, 526 F.3d at 459. The tenant *946brought his claim more than two years after the apartments were built, but fewer than two years after he rented an apartment. Under the FHA’s statute of limitations, “[a]n aggrieved person may commence a civil action in an appropriate United States district court or State court not later than 2 years after the occurrence or the termination of an alleged discriminatory housing practice.” 42 U.S.C. § 3613(a)(1)(A) (emphasis added). Like the statute at issue here, the FHA’s statute of limitations starts the clock on the date the violation occurs, not the date the plaintiff discovers the violation.

Despite the plain text of the statute, the tenant sought to invoke the discovery rule. We rejected his argument, reasoning: “Holding that each individual plaintiff has a claim until two years after he discovers the failure to design and construct would contradict the text of the FHA, as the statute of limitations for private civil actions begins to run when the discriminatory act occurs — not when it’s encountered or discovered.” Garcia, 526 F.3d at 465. The “occurrence” of the “discriminatory housing practice,” we held, is the “failure to design and construct,” not the plaintiffs discovery of the violation. Id. at 464.

Garcia resolves this case. Just as the tenant’s argument conflicted with the plain meaning of the FHA’s statute of limitations, Mangum’s contention contradicts the plain text of the FDCPA, as the statute of limitations begins to run on the “date on which the violation occurs,” not the date on which the violation is discovered. Because the majority’s contrary conclusion creates a stark intracircuit conflict, I cannot join Part A of the court’s opinion.

Ill

Nevertheless, our court’s equitable tolling jurisprudence requires me to concur in the result. Although the discovery rule does not apply, equitable tolling permits Mangum’s suit under our decision in So-cop-Gonzalez, a decision, I respectfully suggest, was wrongly decided.

It is an age-old principle that “[ejquity always refuses to interfere where there has been gross laches in the prosecution of rights.” McQuiddy v. Ware, 20 Wall. 14, 19, 22 L.Ed. 311 (1874); see also McKnight v. Taylor, 42 U.S. 161, 168, 1 How. 161, 11 L.Ed. 86 (1843) (“There must be conscience, good faith, and reasonable diligence, to call into action the powers of the court.”); Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 148, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (“One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence.”). Thus, equitable tolling permits an otherwise untimely suit only if the plaintiff shows she acted diligently in pursuing her legal rights.

Here, it is beyond dispute that Mangum grossly neglected her legal rights. Within one week, she discovered that Bonneville had provided the police department with the bad checks. At that point, she still had fifty-one weeks — ninety-eight percent of the original limitations period — in which to file. Yet, inexplicably, Mangum let the limitations period expire, waiting an additional fifty-fwo weeks before filing suit. She offers no explanation for the lengthy delay, and her claim accordingly should be time barred.

Despite Mangum’s manifest failure to act diligently, our decision in Socop-Gonzalez compels me to deem her claim timely. Socop-Gonzalez invented the rule that “when a statute of limitations is tolled, the days during a tolled period simply are not counted against the limitations period.” Socop-Gonzalez, 272 F.3d at 1195. In other words, the statute does not begin running until the tolled period ends. Applied here, so long as a plaintiff acts diligently before discovering the violation, the limita*947tions period automatically lengthens by a period equal to the time between the violation and the discovery of the violation. Here, Mangum could not reasonably have known of the violation until the police department told her about it. Accordingly, the week between the violation and the discovery mechanically tacks on to the end of the limitations period. Thus, under So-cop-Gonzalez, Mangum timely filed her claim, even though her lengthy fifty-two week delay before filing abundantly demonstrates her lack of diligence.

In another context, the silliness of the Socop-Gonzalez approach would be obvious. Suppose a college student enrolls in a course with an end of semester paper requirement. She gets sick during the first week of the semester and cannot work on the paper for that week. After she recovers, she spends three and a half months dilly dallying, partying, or otherwise behaving in a non-diligent manner. As December approaches, the paper deadline looms ominously. Seeking an opening, the student reads Socop-Gonzalez and demands a one week extension based on her illness at the beginning of the semester. Should the professor be obligated to grant the extension?

Unsurprisingly, we are nearly alone in our permissive attitude towards equitable tolling. Before Socop-Gonzalez, no federal court, in any circuit, had ever concluded that it must turn a blind eye to a litigant’s post-discovery lack of diligence. The general rule has always been quite the opposite. See, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 419, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) (“[N]ot only did petitioner sit on his rights for years before he filed his [state post-conviction petition], but he also sat on them for five more months after his [state post-conviction] proceedings became final before deciding to seek relief in federal court. Under long-established principles, petitioner’s lack of diligence precludes equity’s operation.”).

Several courts of appeals have also rejected our court’s equitable tolling jurisprudence, reasoning persuasively that the plaintiffs post-discovery lack of diligence should matter. See, e.g., Cada v. Baxter Healthcare Corp., 920 F.2d 446, 452 (7th Cir.1990) (“We do not think equitable tolling should bring about an automatic extension of the statute of limitations by the length of the tolling period or any other definite term. It is, after all, an equitable doctrine. It gives the plaintiff extra time if he needs it. If he doesn’t need it there is no basis for depriving the defendant of the protection of the statute of limitations.”); Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir.2000) (“The claimant had abundant time (74 days) following the EEOC’s March 28, 1996 actual release to her of the ... notice in which to institute her court action prior to the June 10, 1996 expiration of limitations.”); Bhd. of Locomotive Eng’rs v. CSX Transp., Inc., 522 F.3d 1190, 1197 (11th Cir.2008) (“Even when the arbitrator issued an interpretation on April 7, 2006, BLET waited until August 1, 2006, to file its petition for enforcement. These delays show BLET’s lack of diligence and such lack of diligence is inimical to a request for tolling.”); Phillips v. Heine, 984 F.2d 489, 492 (D.C.Cir.1993) (“[A]lthough courts often speak vaguely of the doctrine’s suspending the operation of the statute until the tolling circumstance is corrected, tolling does not bring about an automatic extension of the statute of limitations by the length of the tolling period. It gives the plaintiff extra time only if he needs it.”).1

*948The traditional rule makes eminent sense. Equitable tolling, as the name indicates, is an equitable doctrine; it concerns itself with fairness to litigants. It is not fair to extinguish a plaintiffs claim when she could not have discovered the information necessary to file within the limitations period. On the other hand, there is nothing unfair about preventing a litigant from suing in a situation like the one here, where Mangum had ninety-eight percent of the original limitations period in which to file, and yet inexplicably chose not to do so.

Yet there is certainly unfairness of another kind here. It bears emphasizing that equitable tolling differs from equitable estoppel in that the former applies only when both parties are innocent. See Cada, 920 F.2d at 452 (equitable tolling is “a doctrine that adjusts the rights of two innocent parties,” whereas equitable estoppel applies when the defendant inequitably prevented the plaintiff from filing). Thus, fairness to the plaintiff is only one side of the equitable tolling coin. The other is avoiding prejudice to a defendant who has done nothing to prevent the plaintiff from filing. When both parties are innocent, I agree with the Seventh Circuit that “the negligence of the party invoking the doctrine” should “tip the balance against its application.” Id. at 453. In short, applying equitable tolling in this case produces an undeserved windfall to the plaintiff and unwarranted prejudice to the defendant. To return to the parable of the lazy college student, should the college professor grant the extension if doing so would require him to forego a long-planned Christmas vacation with his family?

Socop-Gonzalez’s justifications for its rule do not withstand scrutiny. Contrary to Socop-Gonzalez’s view, the automatic extension rule does not promote “certainty and uniformity.” Socop-Gonzalez, 272 F.3d at 1195. Rather, it merely shifts the inquiry from whether the plaintiff had a reasonable amount of time post-discovery to file her claim to whether the plaintiff had actually discovered the violation. As the Seventh Circuit puts it, “[t]he simplicity would be delusive. Inquiry would shift from how much time the plaintiff needed after he discovered the essential information bearing on his claim in order to prepare his complaint to how much information really was essential.” Cada, 920 F.2d at 453.

Here, for example, suppose Mangum had sued fifty-three weeks after discovering the alleged violation. To excuse her delay, she might have argued that she did not have enough information by December 15, 2004, when she found out that the checks had been disclosed. She might have argued, quite reasonably, that she did not obtain the essential information until she had a few days to read up on the law, or even until she was terminated in August 2006. How much information is enough? This sort of inquiry carries the potential to “extend the statute of limitations in virtually all cases, making the ostensibly fixed deadline illusory.” Id. “Certainty and uniformity” are victims of the Socop-Gonzalez rule; they are not beneficiaries.

Socop-Gonzalez also highlights what it supposes to be Congress’ “intended policy objectives”: “to permit plaintiffs to take a specified amount of time (even if they don’t need it) to further investigate their claim and consider their options before deciding whether to file suit.” Socop-Gonzalez, 272 F.3d at 1196 (internal quotation marks and citation omitted). As the above discussion should make clear, this assertion fundamentally misunderstands the twin purposes of limitations periods. Statutes of limitations balance the interests of two parties; they do not exist solely to give plaintiffs a “specified amount of time” to “consider their options.” The defendant is *949interested in repose. The plaintiff is interested in having a reasonable amount of time to file a claim. In contrast to situations in which equitable estoppel is at issue, here the defendant had nothing to do with the delay. If the plaintiff has had enough time to file, the defendant should not be denied repose.

IV

Statutes of limitations “protect important social interests in certainty, accuracy, and repose.” Cada, 920 F.2d at 452. Congress’s adoption of a limitations period reflects a judgment that defendants should not have to worry about stale claims after a certain amount of time has elapsed. Yet our precedent, by turning a blind eye to the defendant’s interests, unjustifiably treats statutes of limitations as merely “arbitrary obstacles to the vindication of just claims.” Id. This case is a clear example of how Socop-Gonzalez’s automatic extension rule, in many circumstances, converts equitable tolling into tolling at will.

Notwithstanding that Socop-Gonzalez was wrongly decided, I concur specially in the court’s judgment.

. But see Cabello v. Femandez-Larios, 402 F.3d 1148, 1156 (11th Cir.2005) (adopting the Socop-Gonzalez rule).