Camarie Mangum v. Action Collection Service, Inc ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAMARIE MANGUM, 
Plaintiff-Appellant,
v. No. 08-35191
D.C. No.
ACTION COLLECTION SERVICE, INC.,
DBA Action Collection;  4:05-CV-00507-
BONNEVILLE BILLING & BLW
COLLECTIONS, INC.; CITY OF OPINION
POCATELLO; DON FURU,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, District Judge, Presiding
Argued and Submitted
June 2, 2009—Portland, Oregon
Filed August 4, 2009
Before: Diarmuid F. O’Scannlain, Ferdinand F. Fernandez,
and Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fernandez;
Concurrence by Judge O’Scannlain
10115
10118 MANGUM v. ACTION COLLECTION SERVICE
COUNSEL
DeAnne Casperson, Holden, Kidwell, Hahn & Crapo,
P.L.L.C., Idaho Falls, Idaho, for the plaintiff-appellant.
MANGUM v. ACTION COLLECTION SERVICE 10119
Blake G. Hall, Anderson Nelson Hall Smith P.A., Idaho Falls,
Idaho; Todd R. Erikson, Todd R. Erikson, P.A., Idaho Falls,
Idaho, for the defendants-appellees.
OPINION
FERNANDEZ, Circuit Judge:
Camarie Mangum appeals the district court’s determination
that her action against Bonneville Billing & Collections, Inc.
(“Bonneville”), under the Fair Debt Collection Practices Act
(“FDCPA”)1, was barred by the statute of limitations2 and that
the discovery rule doctrine could not apply as a matter of law.
That led to a grant of summary judgment3 against her.4
Mangum also appeals the district court’s determinations
that she had not shown a right to relief under 42 U.S.C.
§ 1983 against the City of Pocatello, Idaho, or Captain Don
Furu based upon alleged violations of the FDCPA, the Fair
Credit Reporting Act (“FCRA”)5 and a claimed constitutional
right to privacy. That led to the grant of a summary judgment
on the claims based upon the statutes, and a judgment as a
matter of law6 on the claim based upon the right of privacy.
We affirm as to the City and Furu, but reverse as to Bonne-
ville.
1
15 U.S.C. §§ 1692-1692p.
2
15 U.S.C. § 1692k(d).
3
Fed. R. Civ. P. 56.
4
We note that Mangum also named other parties, for example, Action
Collection Services, Inc., but those parties are not before us on appeal.
5
15 U.S.C. §§ 1681-1681x.
6
Fed. R. Civ. P. 50(a).
10120 MANGUM v. ACTION COLLECTION SERVICE
BACKGROUND
Mangum was a dispatcher for the City, who began work in
November 1998, and was terminated on August 1, 2006. On
December 2, 2004, Chief of Police Edward Guthrie was at a
store in Pocatello, Idaho, where he observed a list containing
names of individuals from whom checks would no longer be
accepted. Mangum’s name was on the list. Subsequently,
Chief Guthrie directed Captain Furu to conduct an internal
investigation to determine why Mangum’s name was included
on the list, and to assess whether Mangum was engaged in
conduct that violated department policies relating to moral
conduct and professional image.
As part of his investigation, Furu examined small-claims-
court-actions files that contained copies of prior bad checks
written by Mangum. On December 7, 2004, Furu also con-
tacted collection agencies Bonneville and Bannock Collec-
tions, Inc. to inquire about possible claims they may have had
against Mangum for writing bad checks. On December 8th,
2004, Bonneville provided Furu with copies of insufficient-
fund checks written by Mangum. Furu’s investigation indi-
cated that Mangum had written at least twenty-six checks
with insufficient funds, including one to the City itself.
On December 9, 2004, Furu notified Mangum by letter that
he had initiated his investigation, and on December 15, 2004,
Mangum attended an investigative interview with Furu in
which she first became aware of the fact that the debt collec-
tion agencies had provided copies of her check information to
Furu. Mangum states that she never gave those agencies per-
mission to release her debt information to third parties. By
December 19, 2004, Mangum had hired an attorney regarding
the incident.
On December 14, 2005, Mangum finally filed a complaint
in the United States District Court for the District of Idaho
and asserted causes of action under the FDCPA, the FCRA,
MANGUM v. ACTION COLLECTION SERVICE 10121
and 42 U.S.C. § 1983. On August 15, 2006, Mangum filed an
amended complaint adding § 1983 claims against Captain
Furu. All parties then filed motions for summary judgment.
The district court dismissed Mangum’s FDCPA claim against
Bonneville on statute of limitations grounds, and dismissed
her FCRA claims against Bonneville on the ground that it was
not an entity against whom the FCRA could be asserted. The
district court denied the City’s motion for summary judgment
as to Mangum’s § 1983 claim based on constitutional
grounds. However, it dismissed Captain Furu on the ground
that he was entitled to qualified immunity.
Mangum next filed a motion for reconsideration and
requested that the district court address her § 1983 claims
based on the purported FCRA and FDCPA violations. The
district court denied her motion for reconsideration and con-
cluded that neither the FCRA nor the FDCPA provided a right
that she could pursue under § 1983. The parties then pro-
ceeded to trial on the right of privacy claim, and at the close
of Mangum’s evidence, the City filed a motion for judgment
as a matter of law. The district court granted that motion and
entered judgment in favor of the City on the same day. This
appeal followed.7
JURISDICTION AND STANDARDS OF REVIEW
The district court had jurisdiction pursuant to 28 U.S.C.
§§ 1331, 1343. We have jurisdiction pursuant to 28 U.S.C.
§ 1291.
We review the district court’s order granting summary
judgment de novo. Aguilera v. Baca, 510 F.3d 1161, 1167
(9th Cir. 2007). “An order granting summary judgment will
only be affirmed if the evidence, read in the light most favor-
7
It is unclear whether Mangum intends to appeal the judgment in favor
of Captain Furu. In all events, what we say as to her claims against the
City applies to him as well.
10122 MANGUM v. ACTION COLLECTION SERVICE
able to the non-moving party, demonstrates the absence of a
genuine issue as to any material fact, and the moving party is
entitled to judgment as a matter of law.” Id.We also review the district court’s order granting a motion
for judgment as a matter of law under Fed. R. Civ. P. 50 de
novo. Torres v. City of Los Angeles, 548 F.3d 1197, 1205 (9th
Cir. 2008). “ ‘Judgment as a matter of law is appropriate
when the evidence presented at trial permits only one reason-
able conclusion.’ ” Id. (quoting Santos v. Gates, 287 F.3d 846,
851 (9th Cir. 2002)). That is, “ ‘[a] motion for judgment as a
matter of law is properly granted only if no reasonable juror
could find in the non-moving party’s favor.’ ” Id.DISCUSSION
As we see it, the principal issue with which we must wres-
tle is whether our usual discovery rule jurisprudence can
apply to the statute of limitations for an FDCPA action. We
will, therefore, take up that question first and will thereafter
consider Mangum’s claims against the City under § 1983.
A. FDCPA and the Discovery Rule
[1] The statute of limitations for FDCPA actions is found
at 15 U.S.C. § 1692k(d), which, with its heading, reads as fol-
lows: “Jurisdiction: 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 contro-
versy, or in any other court of competent jurisdiction, within
one year from the date on which the violation occurs.” That
phraseology, says Bonneville, with little discussion, means
that the time for bringing an action is an element of subject
matter jurisdiction. Were that so, equitable tolling could not
apply.8 See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89,
8
The discovery rule is not the same as equitable tolling. See Garcia v.
Brockway, 526 F.3d 456, 465 (9th Cir. 2008) (en banc). However, because
MANGUM v. ACTION COLLECTION SERVICE 10123
93-95, 111 S. Ct. 453, 456-57, 112 L. Ed. 2d 435 (1990);
Marley v. United States, 548 F.3d 1286, 1290 (9th Cir. 2008).
However, there is an operating presumption that “equitable
tolling [is] applicable to suits against private defendants,” a
presumption that also applies to “suits against the United
States.” Irwin, 498 U.S. at 95-96, 111 S. Ct. at 457. Of neces-
sity, that must mean that statute of limitations provisions will
not be seen to be jurisdictional in character, absent some sig-
nificant indication to the contrary in the statutory language or
in the legislative history. Bonneville points to no such lan-
guage or history; nor have we found any.9
[2] Of course, there is the heading “Jurisdiction” in 15
U.S.C. § 1692k(d), but the statute itself does not have that head-
ing,10 and the mere fact that the Office of the Law Revision
Counsel11 chose to create the heading when it codified the
provision does not affect our decision. There can be little
doubt that titles, in general, are of some help,12 but the mere
it does not matter here, we will assume, without deciding, that the discov-
ery rule could not apply either, if the time limitation was jurisdictional.
See Archer v. Nissan Motor Acceptance Corp., 550 F.3d 506, 508 (5th Cir.
2008) (stating where time limitation was a jurisdictional bar, the “discov-
ery rule does not apply”); Felter v. Norton, 412 F. Supp. 2d 118, 122
(D.D.C. 2006) (stating that if statute of limitations is jurisdictional, it can-
not be overcome by discovery rule), remanded on other grounds, Felter
v. Kempthorne, 473 F.3d 1255 (D.C. Cir. 2007).
9
The most history we have found is S. Rep. No. 95-382, at 8 (1997),
reprinted in 1977 U.S.C.C.A.N. 1695, 1702, which hurts rather than helps
Bonneville’s position by separating the concept of jurisdiction from that
of time in the following language: “Jurisdiction for actions is conferred on
U.S. district and state courts; there is a 1 year statute of limitations.” There
is also a House of Representatives report, but it merely sets out the statu-
tory language and, thus, affords no insights. See H.R. Rep. No. 95-131, at
15, 23 (1997).
10
Fair Debt Collection Practices Act, Pub. L. No. 95-109, § 813, 91 Stat.
874, 881 (1977).
11
The Office is supervised by the Committee on the Judiciary of the
House of Representatives. 1 U.S.C. § 202.
12
See Almendarez-Torres v. United States, 523 U.S. 224, 234, 118 S. Ct.
1219, 1226, 140 L. Ed. 2d 350 (1998).
10124 MANGUM v. ACTION COLLECTION SERVICE
addition of a title by the Law Revision Counsel cannot change
the meaning or intent of a statutory provision.13 Also, we
attach no particular significance to the fact that this statute of
limitations appears in the same sentence in which the jurisdic-
tion provision appears. Nothing in the structure of that sen-
tence tells us that the time limitation was also a jurisdictional
limitation. In fact, a more natural reading is that parties may
bring their action in any “court of competent jurisdiction” and
may do so “within one year.” 15 U.S.C. § 1692k(d). It is fair
to say that parties are faced with a “when” issue and a “what
court” issue for every action, but the former does not usually
control or affect the latter. In short, we agree with both the
fine discussion and the conclusion in Clark, 176 F. Supp. 2d
at 1068, that is, “the presumption that statutory time limits are
not jurisdictional has not been rebutted by anything in the lan-
guage or legislative history of the FDCPA.”14 That said, we
must still consider whether commencement of the one year
period was delayed by the discovery rule.15
[3] We have made it clear that, in general, the discovery
rule applies to statutes of limitations in federal litigation, that
is, “[f]ederal law determines when the limitations period
begins to run, and the general federal rule is that ‘a limitations
period begins to run when the plaintiff knows or has reason
13
See United States v. Welden, 377 U.S. 95, 98 n.4, 84 S. Ct. 1082, 1085
n.4, 12 L. Ed. 2d 152 (1964); see also Clark v. Bonded Adjustment Co.,
176 F.Supp.2d 1062, 1067-68 (E.D.Wash. 2001).
14
We are aware of the Eighth Circuit Court of Appeals’ statement in
reviewing this section that it was “not at liberty to disregard the jurisdic-
tional limitations Congress has placed upon the federal courts.” Mattson
v. U.S. West Commc’ns, Inc., 967 F.2d 259, 262 (8th Cir.1992). But that
statement was made without any real analysis, and we are unsure but what
“jurisdiction” was used in a somewhat colloquial sense. In any event, we
do not agree that the language is jurisdictional.
15
As we have noted, the discovery rule differs from equitable tolling.
See Garcia, 526 F.3d at 465. While in most instances the differences may
be quite arcane, we need not consider them here because we will hold that
the discovery rule does apply. We need go no further.
MANGUM v. ACTION COLLECTION SERVICE 10125
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) (quoting Trotter v. Int’l Long-
shoremen’s & Warehousemen’s Union, 704 F.2d 1141, 1143
(9th Cir. 1983)). Indeed, even when a statute — FCRA —
expressly stated that an action must be brought “within two
years from the date on which the liability arises”16 subject to
an exception for willful misrepresentation,17 we held that the
discovery rule applied where there was no willful misrepre-
sentation. See Andrews v. TRW, Inc., 225 F.3d 1063, 1066-67
(9th Cir. 2000), rev’d, 534 U.S. 19, 122 S. Ct. 441, 151 L. Ed.
2d 339 (2001).
The Supreme Court felt that we had gone too far; as it said:
We doubt that Congress, when it inserted a carefully
worded exception to the main rule, intended simulta-
neously to create a general discovery rule that would
render that exception superfluous. In sum, the evi-
dence of the early incarnations of § 1681p, like the
“liability arises” language on which Congress ulti-
mately settled, fails to convince us that Congress
intended sub silentio to adopt a general discovery
rule in addition to the limited one it expressly pro-
vided.
TRW Inc. v. Andrews, 534 U.S. 19, 33, 122 S. Ct. 441, 450,
151 L. Ed. 2d 339 (2001). That, of course, does not speak to
the discovery rule, in general, but Bonneville argues that it
affects the FDCPA because of a couple of comments by the
Court along the way.
[4] The Court did say that “[t]he FCRA does not govern an
area of the law that cries out for application of a discovery
rule.” Id. at 28, 122 S. Ct. at 447. And, says Bonneville, the
16
15 U.S.C. § 1681p (1994).
17
Id.
10126 MANGUM v. ACTION COLLECTION SERVICE
FDCPA deals with essentially the same general area of the
law. Perhaps so, but nothing in the Court’s comment — dicta
or not — indicates that crying out was a threshold require-
ment for a discovery rule, and it certainly made no difference
in the case itself, which dealt with the express limitations
enacted by Congress for the FCRA.
True it is that, as Bonneville notes, the Supreme Court
expressed some skepticism about general application of the
discovery rule. It noted that we had presumed that absent
express legislation to the contrary “all federal statutes of limi-
tations, regardless of context, incorporate a general discovery
rule.” Id. at 27, 122 S. Ct. at 446. If there were any presump-
tion at all, it said, we had “conspicuously overstated its scope
and force.” Id. The Court then noted that it had previously
recognized that federal courts generally apply a discovery rule
when a statute does not speak to the issue, but, it continued,
“we have not adopted that position as our own.” Id., 122 S.
Ct. at 447. However, the Court did not say whether it would
or would not do so in a proper case because one thing was
clear: it had never gone as far as we had gone, and we were
wrong to have done so. Id.[5] The above is surely food for thought and is worth mus-
ing on, but it does not overrule or seriously undermine our
general approach to the point that we can now ignore pre-
existing Ninth Circuit law. We simply cannot declare that the
rule is inapplicable in a case like this one. Cf. Miller v. Gam-
mie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc) (holding
that a panel can reexamine our prior precedent when that has
been undermined by later Supreme Court authority.)18
[6] All of the above being true, we are required to hold that
18
One court of appeals has declined to find that the rule has been under-
mined at all. See Skwira v. United States, 344 F.3d 64, 74-75 (1st Cir.
2003). Another has expressed uncertainty, but has not resolved the issue.
See Johnson v. Riddle, 305 F.3d 1107, 1114 n.3 (10th Cir. 2002).
MANGUM v. ACTION COLLECTION SERVICE 10127
Mangum did file in a timely fashion. By any account, the first
time she discovered (or could have discovered) that her
checks had been disclosed to the City was December 15,
2004, when she spoke with Captain Furu, and she filed her
action on December 14, 2005 — close, but good enough.19
Therefore, the district court erred, and we must reverse the
summary judgment as to Bonneville.
B. Section 1983 Claims
In order to state a 42 U.S.C. § 1983 claim against the City,
Mangum was required to show that “(1) the action com-
plained of occurred ‘under color of law,’ and (2) the action
resulted in a deprivation of a constitutional right or a federal
statutory right.” Azer v. Connell, 306 F.3d 930, 935 (9th Cir.
2002). In that regard, it is important to emphasize that § 1983
does not itself create substantive rights; rather, it merely pro-
vides a “mechanism for enforcing individual rights” that are
conferred or secured by other statutory or constitutional provi-
sions. See Gonzaga Univ. v. Doe, 536 U.S. 273, 285, 122 S.
Ct. 2268, 2276, 153 L. Ed. 2d 309 (2002).
(1) The Statutorily Based Claims
Mangum asserts a § 1983 claim against the City based upon
a claimed violation by the City of the FCRA and the FDCPA.
Neither theory is viable.
[7] As the City points out, the FCRA does not even apply
to the debt collection agencies, much less to the City. That is
to say, it confers no rights against those agencies or the City;
its strictures relate only to consumer reporting agencies. But
“consumer reporting agency” is an appellation for those that
19
We note that Mangum’s long wait after she discovered the disclosure
does not affect our decision. Cf. Socop-Gonzalez v. INS, 272 F.3d 1176,
1195 (9th Cir. 2001) (en banc) (holding that “the days during a tolled
period simply are not counted against the limitations period”).
10128 MANGUM v. ACTION COLLECTION SERVICE
assemble or evaluate consumer credit information, etc., “for
the purpose of furnishing consumer reports to third parties.”
15 U.S.C. § 1681a(f). At most, debt collection agencies (and,
sometimes, governmental entities) could be “furnishers” of
information to a consumer reporting agency in certain
instances,20 but there is no claim that information was so fur-
nished in this case. In short, this case has nothing whatsoever
to do with fair credit reporting,21 and the FCRA cannot form
the basis of Mangum’s § 1983 action.
[8] Similarly, while it is conceivable that a debt collector
could be held responsible for releasing copies of Mangum’s
bad checks to the City,22 a matter on which we express no
opinion, nothing in the FDCPA purports to confer a right of
action against a third party that received the information.
Here, not only was the City not a “debt collector,” but also it
was not even attempting to collect a debt. Again, there simply
is no statutory basis upon which to found a claim against the
City based upon the FDCPA.
(2) Constitutional Right of Privacy
Mangum finally argues that she has a viable claim against
the City because it violated her constitutional right of privacy
when it obtained copies of the insufficient fund checks that
she had placed in the stream of commerce. While there is a
constitutional right to what is known as informational privacy,23
which may even encompass confidential financial informa-
tion,24 that avails her nothing in this case. What Mangum
claims is that once the insufficient-fund check was negotiated
20
See 15 U.S.C. § 1681s-2.
21
See Gorman v. Wolpoff & Abramson, LLP, 552 F.3d 1008, 1013-14
(9th Cir. 2009).
22
See 15 U.S.C. § 1692a(6).
23
See Nelson v. NASA, 530 F.3d 865, 877-78 (9th Cir. 2008).
24
See Nelson, 530 F.3d at 877; Denius v. Dunlap, 209 F.3d 944, 957-58
(7th Cir. 2000).
MANGUM v. ACTION COLLECTION SERVICE 10129
by her victim, ultimately rejected by her bank, and then
returned to the victim, who put it out for collection but never
returned it to her possession, a right of privacy to the informa-
tion on that instrument somehow sprang into being. That
right, she says, would include any insufficient fund informa-
tion entered upon the check by other parties. We disagree.
[9] The Supreme Court put its finger on the core of the
problem with Mangum’s assertion decades ago, when it was
faced with a claim by a defendant that the Fourth Amendment
to the United States Constitution precluded the government
from subpoenaing checks, deposit slips, and other records, in
the hands of the defendant’s banks. United States v. Miller,
425 U.S. 435, 436-38, 96 S. Ct. 1619, 1621, 48 L. Ed. 2d 71(1976). The Court stated:
[W]e perceive no legitimate “expectation of privacy”
in their contents. The checks are not confidential
communications but negotiable instruments to be
used in commercial transactions. All of the docu-
ments obtained, including financial statements and
deposit slips, contain only information voluntarily
conveyed to the banks and exposed to their employ-
ees in the ordinary course of business.
Id. at 442, 96 S. Ct. at 1624; see also United States v. Payner,
447 U.S. 727, 732, 100 S. Ct. 2439, 2444, 65 L. Ed. 2d 468(1980).
[10] Mangum seeks to confine that holding to its narrow
facts, that is, checks in the possession of the banks, but points
to nothing that would cabin the principle in that way. Why
would she acquire more of a privacy right when the bank
returned the check to her victim — the person to whom she
gave it — or when that victim made further use of that docu-
ment of false promise? We think there is no viable basis for
an assertion that she did. See, e.g., SEC v. Jerry T. O’Brien,
Inc., 467 U.S. 735, 743, 104 S. Ct. 2720, 2725-26, 81 L. Ed.
10130 MANGUM v. ACTION COLLECTION SERVICE
2d 615 (1984) (“It is established that, when a person commu-
nicates information to a third party even on the understanding
that the communication is confidential, he cannot object if the
third party conveys that information or records thereof to law
enforcement authorities.”); United States v. Cormier, 220
F.3d 1103, 1108 (9th Cir. 2000) (finding no reasonable expec-
tation of privacy in information a person gave a hotel when
he registered as a guest); Wang v. United States, 947 F.2d
1400, 1403 (9th Cir. 1991) (finding no reasonable expectation
of privacy in records a person gave to his financial consul-
tant); United States v. Choate, 576 F.2d 165, 175 (9th Cir.
1978) (finding no reasonable expectation of privacy in infor-
mation on the outside of an envelope deposited in the mail).
[11] To the extent Mangum suggests that the very enact-
ment of the FDCPA gave her a right of privacy in the checks
and the information thereon as soon as the victims turned
them over to collection agencies, we disagree. Congress did
indicate that its purpose was to “eliminate abusive debt col-
lection practices,”25 and noted that those practices can contrib-
ute to a number of ills, including “invasions of individual
privacy.”26 But that is far from saying that the information on
the check itself is private or that once a check is put out for
collection, any other person who sees or obtains it, or a copy
of it, has violated the bad check writer’s right of privacy. In
fact, the only remedy for violations of the FDCPA is against
the debt collector itself,27 when that collector wrongfully com-
municates the information “in connection with the collection”
of a debt.28 That is a relatively narrow prohibition and remedy.29
25
15 U.S.C. § 1692(e).
26
15 U.S.C. § 1692(a).
27
15 U.S.C. § 1692k.
28
15 U.S.C. § 1692c.
29
Here, for example, one might ask whether the disclosure was even in
connection with collection of a debt. However, that issue is not before us
and we need not decide it at this time.
MANGUM v. ACTION COLLECTION SERVICE 10131
[12] Nor does it avail Mangum to point to the general, and
somewhat amorphous, right to informational privacy. No
doubt that right exists. See Nelson, 530 F.3d at 879-80 & n.5.
However, the existence of that right is a far cry from holding
that a person who places a negotiable instrument into the
stream of commerce, an instrument that could (and indeed
would) be seen by numerous individuals, who could, them-
selves, have shown it to others, including the City, still
retained a legitimate expectation that if the check came into
the hands of a collection agency, no other individual, includ-
ing the City, could ask for a copy. The thought that a bad
check writer retains some inchoate constitutionally protected
right of privacy in what her bad check discloses while and
after it moves through the stream of commerce is daedalian,
but it will not bear examination. The bad check writer
eschews privacy when the check is launched, and surely does
not reacquire it along the way. It is one thing to say that a per-
son has a privacy right and can refuse to give out personal
information when asked. It is quite another thing to say that
having sent a negotiable instrument into the stream of com-
merce, the person has a privacy right to preclude others from
obtaining information that is found upon the instrument itself
— here, of course, Mangum’s bad check, which she could
have reasonably foreseen would wind up in the hands of a
collection agency. Simply put, at no point did the information
in question become sufficiently personal to merit constitu-
tional protection. See Ferm v. U.S. Tr. (In re Crawford), 194
F.3d 954, 958 (9th Cir. 1999).
It being pellucid that Mangum had no reasonable expecta-
tion of privacy in the checks she issued and placed in the
stream of commerce, we need not go on to ask whether the
City would have an interest in obtaining the information on
those checks, which would outweigh some privacy interest of
hers. Thus, we will not issue an advisory opinion that purports
to balance the City’s need for information about a police
department employee’s improper activities against some
10132 MANGUM v. ACTION COLLECTION SERVICE
hypothetical interest of Mangum in keeping the information
on her bad checks from the City.
CONCLUSION
Mangum, who issued dozens of bad checks, asserts that her
constitutional rights were violated when the city police
department, where she worked, obtained copies of the checks
from those who were seeking to collect upon them. We hold
that no constitutional right of hers was violated. Similarly, the
City did not violate any right she had under FCRA or
FDCPA. Thus, we affirm the judgment for the City and for
Captain Furu, who conducted the City’s investigation.
However, the district court erred when it determined that
any claim against Bonneville was barred by the FDCPA’s
one-year statute of limitations, 15 U.S.C. § 1692k(d) on the
basis that it was filed more than a year after the alleged “vio-
lation” and the discovery rule cannot apply. Because we dis-
agree with the latter proposition, we must reverse.
AFFIRMED in part, REVERSED in part, and
REMANDED. The parties shall bear their own costs on
appeal.
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 Mangum had no constitu-
tional right to privacy in the bad checks she voluntarily depos-
ited into the stream of commerce. Accordingly, I join Part B
of the court’s opinion without reservation.
MANGUM v. ACTION COLLECTION SERVICE 10133
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 sug-
gest 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 con-
flicts 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 dis-
covery rule does not apply, equitable tolling permits
Mangum’s suit under Socop-Gonzales v. INS, 272 F.3d 1176(9th Cir. 2001) (en banc). Socop-Gonzales, however, was a
significant, unwarranted departure from ancient principles of
equity. Because I believe Socop-Gonzales 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, Bonne-
ville provided the department with copies of bad checks writ-
ten 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
10134 MANGUM v. ACTION COLLECTION SERVICE
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 vio-
lation.
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 “in-
fringement” 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. Law-
rence 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 prece-
dent requires us to apply the discovery rule to every non-
MANGUM v. ACTION COLLECTION SERVICE 10135
jurisdictional statute of limitations, regardless of the plain lan-
guage 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
brought his claim more than two years after the apartments
were built, but fewer than two years after he rented an apart-
ment. 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 discrimina-
tory 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, reason-
ing: “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 limita-
tions for private civil actions begins to run when the discrimi-
natory act occurs—not when it’s encountered or discovered.”
Garcia, 526 F.3d 465. The “occurrence” of the “discrimina-
tory housing practice,” we held, is the “failure to design and
construct,” not the plaintiff ’s 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 lim-
itations, 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
10136 MANGUM v. ACTION COLLECTION SERVICE
conclusion creates a stark intracircuit conflict, I cannot join
Part A of the court’s opinion.
III
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 Socop-Gonzales, a decision, I respect-
fully suggest, was wrongly decided.
It is an age-old principle that “[e]quity always refuses to
interfere where there has been gross laches in the prosecution
of rights.” McQuiddy v. Ware, 20 Wall. 14, 19 (1874); see
also McKnight v. Taylor, 42 U.S. 161, 168 (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 (1984) (“One who
fails to act diligently cannot invoke equitable principles to
excuse that lack of diligence.”). Thus, equitable tolling per-
mits 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 Bonne-
ville had provided the police department with the bad checks.
At that point, she still had fifty-one weeks— ninety-eight per-
cent of the original limitations period—in which to file. Yet,
inexplicably, Mangum let the limitations period expire, wait-
ing an additional fifty-two weeks before filing suit. She offers
no explanation for the lengthy delay, and her claim accord-
ingly should be time barred.
Despite Mangum’s manifest failure to act diligently, our
decision in Socop-Gonzales compels me to deem her claim
timely. Socop-Gonzales 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-
MANGUM v. ACTION COLLECTION SERVICE 10137
Gonzales, 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 limitations period automatically lengthens by a
period equal to the time between the violation and the discov-
ery 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 Socop-Gonzales, 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-Gonzales
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 oth-
erwise behaving in a non-diligent manner. As December
approaches, the paper deadline looms ominously. Seeking an
opening, the student reads Socop-Gonzales 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 atti-
tude towards equitable tolling. Before Socop-Gonzales, no
federal court, in any circuit, had ever concluded that it must
turn a blind eye to a litigant’s post-discovery lack of dili-
gence. The general rule has always been quite the opposite.
See, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 419 (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.”).
10138 MANGUM v. ACTION COLLECTION SERVICE
Several courts of appeals have also rejected our court’s
equitable tolling jurisprudence, reasoning persuasively that
the plaintiff ’s 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 limita-
tions 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 toll-
ing.”); Phillips v. Heine, 984 F.2d 489, 492 (D.C. Cir. 1993)
(“[A]lthough courts often speak vaguely of the doctrine’s sus-
pending the operation of the statute until the tolling circum-
stance is corrected, tolling does not bring about an automatic
extension of the statute of limitations by the length of the toll-
ing period. It gives the plaintiff extra time only if he needs it.”).1
The 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
plaintiff ’s 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 liti-
gant from suing in a situation like the one here, where
1
But see Cabello v. Fernandez-Larios, 402 F.3d 1148, 1156 (11th Cir.
2005) (adopting the Socop-Gonzales rule).
MANGUM v. ACTION COLLECTION SERVICE 10139
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 ineq-
uitably 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 noth-
ing 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-Gonzales’s justifications for its rule do not withstand
scrutiny. Contrary to Socop-Gonzales’s view, the automatic
extension rule does not promote “certainty and uniformity.”
Socop-Gonzales, 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 discov-
ered 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
10140 MANGUM v. ACTION COLLECTION SERVICE
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 unifor-
mity” are victims of the Socop-Gonzales rule; they are not
beneficiaries.
Socop-Gonzales also highlights what it supposes to be Con-
gress’ “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-Gonzales, 272
F.3d at 1196 (internal quotation marks and citation omitted).
As the above discussion should make clear, this assertion fun-
damentally 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
interested in repose. The plaintiff is interested in having a rea-
sonable amount of time to file a claim. In contrast to situa-
tions 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. Con-
gress’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, unjustifi-
MANGUM v. ACTION COLLECTION SERVICE 10141
ably treats statutes of limitations as merely “arbitrary obsta-
cles to the vindication of just claims.” Id. This case is a clear
example of how Socop-Gonzales’s automatic extension rule,
in many circumstances, converts equitable tolling into tolling
at will.
Notwithstanding that Socop-Gonzales was wrongly
decided, I concur specially in the court’s judgment.