No. 00-1045 

In the Supreme Court of the United States 

TRW INC., PETITIONER 

v. 

ADELAIDE ANDREWS 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AND THE FEDERAL TRADE COMMISSION 
AS AMICI CURIAE SUPPORTING RESPONDENT 

JOHN D. GRAUBERT 

Acting General Counsel 

JOHN F. DALY 

Assistant General Counsel 

LAWRENCE DEMILLE-WAGMAN 

Attorney 
Federal Trade Commission 
Washington, D.C. 20580 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

Counsel of Record 

LAWRENCE G. WALLACE 

Deputy Solicitor General 

EDWARD C. DUMONT 

Assistant to the Solicitor 

General 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514–2217 

QUESTION PRESENTED 

Whether the limitation period under the Fair Credit 
Reporting Act, 15 U.S.C. 1681 et seq., which allows pri- 
vate damage actions “to enforce any liability created 
under [the Act]” to be brought “within two years from 
the date on which the liability arises,” begins to run at 
the time of an alleged violation, even if the potential 
plaintiff has no reason to know that she has been 
injured. 

(I) 

TABLE OF CONTENTS 

Page 

Statement ........................................................................................ 1 

Summary of argument .................................................................. 
6 

Argument ........................................................................................ 9 

I. The language of the Fair Credit Reporting Act 

permits the use of a discovery rule in deter- 
ming when the statutory limitation on private 

enforcement actions begins to run ............................... 
10 

A. Use of a discovery rule is consistent with 

the Act’s provision that the time for suit 

runs from the time that “liability arises” ............ 

10 

B. Inclusion of an express anti-concealment 

provision in Section 1681p does not imply 

a congressional intention to prohibit use 

of a discovery rule ................................................... 

15 

II. Use of a discovery rule best comports with the 

history, structure, and purposes of the Fair 

Credit Reporting Act ..................................................... 

24 

Conclusion ....................................................................................... 30 

TABLE OF AUTHORITIES 

Cases: 

Akutowicz v. United States, 859 F.2d 1122 (2d Cir. 

1988) ......................................................................................... 14 

Associated Indem. Corp. v. State Indus. Accident 

Comm’n, 12 P.2d 1075 (Cal. Ct. App. 1932), dis- 
approved in part on other grounds, 172 P.2d 884 

(Cal. 1946) ................................................................................ 

12 

Basic Inc. v. Levinson, 485 U.S. 224 (1988) ...................... 

28 

Bay Area Laundry & Dry Cleaning Pension Trust 

Fund v. Ferbar Corp., 522 U.S. 192 (1997) ................ 

11, 14 

Burnett v. New York Cent. R.R., 380 U.S. 424 (1965) .... 

25 

Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th 

Cir. 1990), cert. denied, 501 U.S. 1261 (1991) ........ 18, 19, 20 

(III) 

IV 

Cases—Continued: Page 

Connors v. Hallmark & Son Coal Co., 935 F.2d 336 

(D.C. Cir. 1991) ........................................................ 

18, 20, 25, 26 

Crown Coat Front Co. v. United States, 386 U.S. 

503 (1967) ............................................................................... 

9, 24 

Englerius v. Veterans Admin., 837 F.2d 895 

(9th Cir. 1988) ......................................................................... 

14 

Herget v. Central Nat’l Bank & Trust Co., 324 U.S. 4 

(1945) ........................................................................................ 13 

Herman & MacLean v. Huddleston, 459 U.S. 375 

(1983) ........................................................................................ 21 

Holmberg v. Armbrecht, 327 U.S. 392 (1946) .... 

5, 14, 20, 26 

Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997) ................ 14, 18, 

20, 24 
Lampf, Pleva, Lipkind, Prupis & Petigrow v. 

Gilbertson, 501 U.S. 350 (1991) .......................................... 

13 

Reading Co. v. Koons, 271 U.S. 58 (1926) .......... 

7-8, 9, 24, 25 

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

18, 28, 29 

Tijerina v. Walters, 821 F.2d 789 (D.C. Cir. 1987) .......... 

14, 

22, 26 

United States v. Beggerly, 524 U.S. 38 (1998) ........ 
13, 20, 27 

United States v. Brockamp, 519 U.S. 347 (1997) ... 

13, 15, 19 

United States v. Kubrick, 444 U.S. 111 (1979) ............. 

11, 12, 

14, 23, 24, 25, 30 
United States v. Lindsay, 346 U.S. 568 (1954) ................. 

11 

Urie v. Thompson, 337 U.S. 163 (1949) .................... 

12, 24, 26 

Wolin v. Smith Barney Inc., 83 F.3d 847 (7th Cir. 

1996) ........................................................... 

16, 17, 18, 19, 20, 22 

Zenith Radio Corp. v. Hazeltine Research, Inc., 

401 U.S. 321 (1971) ................................................................ 

11 

Statutes: 

Fair Credit Reporting Act, 15 U.S.C. 1681 et seq. .............. 

3 

15 U.S.C. 1681b .................................................................. 

3, 4, 6 

15 U.S.C. 1681b (1994 & Supp. V 1999) ............................. 

27 

15 U.S.C. 1681e(a) ................................................... 

3, 5, 6, 27, 29 

15 U.S.C. 1681e(a)-(b) ........................................................... 9 

V 

Statutes—Continued: Page 

15 U.S.C. 1681e(b) ...................................................... 

3, 5, 27, 29 

15 U.S.C. 1681g-1681i (1994 & Supp. V 1999) ................... 

27 

15 U.S.C. 1681i(a) ................................................................... 

3, 5 

15 U.S.C. 1681n (1994 & Supp. V 1999) ............................. 
1 

15 U.S.C. 1681n-1681o (1994 & Supp. V 1999) ................ 
9, 27 

15 U.S.C. 1681o (1994 & Supp. V 1999) ............................. 
1 

15 U.S.C. 1681p (§ 618) ................................................... 

passim 

15 U.S.C. 1681s (1994 & Supp. V 1999) .............................. 

28 

15 U.S.C. 1681s(a)-(b) (1994 & Supp. V 1999) ................... 

1 

Federal Employers’ Liability Act, 45 U.S.C. 56 ................. 

12 

Federal Torts Claims Act, 28 U.S.C. 2401(b) ...................... 

11 

Privacy Act of 1974, 5 U.S.C. 552a (1994 & Supp. V 

1999) ......................................................................................... 6 

5 U.S.C. 552a(g)(5) .................................................... 

7, 13, 15 

26 U.S.C. 6511 ............................................................................ 
15 

29 U.S.C. 1113(a) ....................................................................... 
17 

Miscellaneous: 

2 C. Corman, Limitation of Actions (1991 & Supp. 
1993) ............................................................................... 

16, 19-20 
Note, Developments in the Law: Statutes of Limita- 
tions, 63 Harv. L. Rev. 1177 (1950) ................................... 
11 

4 C. Wright & A. Miller, Federal Practice and Proce- 
dure (2d ed.): 
1987 & Supp. 1996 ............................................................. 
16 

Supp. 2001 ....................................................................... 16, 18 

In the Supreme Court of the United States 

No. 00-1045 

TRW INC., PETITIONER 

v. 

ADELAIDE ANDREWS 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AND THE FEDERAL TRADE COMMISSION 
AS AMICI CURIAE SUPPORTING RESPONDENT 

INTEREST OF THE UNITED STATES AND THE 
FEDERAL TRADE COMMISSION 

The Fair Credit Reporting Act confers public en- 
forcement authority on the Federal Trade Commission 
with respect to most consumer reporting agencies and 
others subject to the Act, and on other federal agencies 
or officers with respect to certain financial institutions 
and other specified parties. 15 U.S.C. 1681s(a)-(b) (1994 
& Supp. V 1999). Private suits under 15 U.S.C. 1681n 
and 1681o (1994 & Supp. V 1999) supplement public 
enforcement efforts. 

STATEMENT 

1. In June 1993, respondent Adelaide Andrews saw 
a doctor in Santa Monica, California. In connection with 
the appointment she provided the doctor’s office with 
personal information, including her date of birth and 

(1) 

2 

social security number. A receptionist named Andrea 
Andrews processed that information. Pet. App. 16a. 

In 1994 Andrea Andrews moved to Las Vegas. 
There she rented an apartment under the name “Ade- 
laide (Andrea) Andrews,” using respondent’s social se- 
curity number and driver’s license number, and 
obtained telephone and electric service in respondent’s 
name. Pet. App. 16a. She arranged for television ser- 
vice from Prime Cable of Las Vegas, using respondent’s 
social security number. Id. at 3a, 17a. She also applied 
for credit at Dillard’s and Express Department Stores 
and through companies called FCNB Preferred Charge 
and Commercial Credit, in each case using respondent’s 
social security number, and in one case using respon- 
dent’s date of birth as well. Id. at 2a-3a, 16a-17a. 

The companies all requested credit reports on their 
prospective customer—in four cases from petitioner 
TRW, and in one case from former defendant Trans 
Union Corporation, Inc. Pet. App. 16a-17a. Petitioner 
or Trans Union matched the information supplied to 
them to the social security number, last name, and first 
initial associated with credit files they maintained 
concerning respondent, and provided the requesters 
with information from those files. Id. at 17a. They also 
noted the requests and disclosures in the files they 
maintained on respondent. Id. at 3a, 19a. Dillard’s 
Department Store then extended credit to Andrea 
Andrews, and Prime Cable provided her with service. 
Id. at 3a, 17a-18a. Andrea eventually failed to pay what 
she owed to Dillard’s, to Prime Cable, and to her 
landlord. Id. at 17a; Pet. Br. 6. 

In May 1995 respondent inquired about refinancing 
the mortgage on her home, and the bank requested a 
credit report on her. The report combined information 
from petitioner’s and Trans Union’s files, and showed a 

3 

delinquent Dillard’s account in Las Vegas. Pet. App. 
18a. Respondent then contacted petitioner and Trans 
Union to obtain copies of the files they maintained on 
her. When she saw that petitioner’s file showed the 
Dillard’s account and requests for credit reports by 
other businesses in Las Vegas, she contacted peti- 
tioner, Dillard’s, and the Las Vegas police. Pet. Br. 7. 
At respondent’s request, petitioner deleted from her 
file all entries that had arisen from Andrea Andrews’ 
activities. Pet. App. 3a. 

2. In October 1996 respondent sued petitioner and 
Trans Union under the Fair Credit Reporting Act 
(FCRA), 15 U.S.C. 1681 et seq. See Pet. App. 3a. She 
alleged that petitioner had violated 15 U.S.C. 1681b and 
1681e(a) by providing reports on her “without rea- 
sonable grounds for believing that the * * * reports 
were to be used in connection with a credit transaction 
involving [respondent].” J.A. 15 (Compl. ¶ 23). She 
also alleged that petitioner had violated Section 
1681e(b) by “fail[ing] to maintain and follow ‘reasonable 
procedures to assure maximum possible accuracy of the 
information concerning’ [respondent]” in their files. 
J.A. 16 (Compl. ¶ 28). She sought actual and punitive 
damages and an injunction requiring petitioner to com- 
ply with the FCRA “by ‘requiring a sufficient number 
of corresponding points of reference’ before dissemi- 
nating an individual’s credit history or attributing infor- 
mation to an individual’s credit file.” Pet. App. 4a 
(quoting Compl. ¶ 42(a), reprinted at J.A. 19).1 

1 The complaint also alleged that Trans Union had violated 
15 U.S.C. 1681i(a) by failing to respond appropriately when respon- 
dent notified it that the information in its files was inaccurate (J.A. 

17), and that the defendants’ violations of the FCRA justified 
equitable relief under California law (J.A. 18-19). 

4 

The district court granted partial summary judgment 
in favor of petitioner, based in part on the statute of 
limitations that applies to private actions under the 
FCRA. Pet. App. 22a-25a. The court concluded (id. at 
25a) that the limitation period, which is generally “two 
years from the date on which the liability arises,” 15 
U.S.C. 1681p, began to run on the date that petitioner 
made each challenged disclosure of information about 
respondent. Respondent thus could not pursue any 
claim based on petitioner’s disclosures of information to 
FCNB and Prime Cable, because each of those dis- 
closures was made more than two years before respon- 
dent filed her complaint. Pet. App. 23a, 25a. 

The court rejected respondent’s contention that the 
Act should be construed to include a “discovery rule,” 
under which the limitation period would not begin to 
run until respondent learned or should have learned 
that a disclosure had been made, and under which all of 
respondent’s claims would have been timely. Pet. App. 
23a-25a. The court pointed out that the FCRA limita- 
tion provision includes a “specific exception” (id. at 23a) 
for situations in which a defendant has “materially and 
willfully misrepresented” information that the Act 
requires it to disclose to a potential plaintiff and that is 
material to establishing the defendant’s liability. See 
15 U.S.C. 1681p. The court held that “the discovery 
rule does not apply to the FCRA except in the one 

* * * circumstance” set out in the Act. Pet. App. 23a, 
25a. 

The district court made various other pre-trial rul- 
ings, including that disclosure of information in connec- 
tion with a credit application by someone impersonating 
a consumer does not violate 15 U.S.C. 1681b (Pet. App. 
25a-29a), and that petitioner’s general procedures for 
deciding what files to disclose in response to requests 

5 

for credit reports, and its disclosure of respondent’s 
files in this case, were “reasonable as a matter of law” 
(id. at 34a n.15), and did not violate 15 U.S.C. 1681e(a). 
See Pet. App. 29a-34a.2 Trans Union then settled with 
respondent. See J.A. 5. Respondent’s remaining claims 
against petitioner were tried to a jury, which found for 
petitioner. Pet. App. 5a. 

3. The court of appeals reversed in part and 
remanded for trial on respondent’s remaining claims. 
Pet. App. 1a-9a. The court rejected the district court’s 
conclusion that the FCRA’s limitation period began to 
run from the date of each disclosure of information 
about respondent, without regard to when respondent 
knew or should have known of the disclosure. Id. at 5a- 
6a. The court held that construction of the limitation 
provision was governed instead by “[t]he general 
federal rule * * * that a federal statute of limitations 
begins to run when a party knows or has reason to 
know that she was injured,” because “unless Congress 
has expressly legislated otherwise, the equitable doc- 
trine of discovery ‘is read into every federal statute of 
limitations.’ ” 

Ibid. (quoting Holmberg v. Armbrecht, 
327 U.S. 392, 397 (1946)). The court noted (id. at 6a) 

2 The district court also held that there were issues of fact with 
respect to respondent’s claims against Trans Union under 15 
U.S.C. 1681e(b) and 1681i(a) (Pet. App. 35a-45a, 45a-48a); that peti- 
tioner was entitled to judgment that the report it furnished to the 
bank when petitioner was considering refinancing her home had 
not caused her any economic damage (id. at 48a-51a); that peti- 
tioner was entitled to summary judgment on respondent’s claim 
for punitive damages, but Trans Union was not (id. at 53a-57a); and 
that respondent was potentially entitled to disgorgement of profits 
under state law (id. at 52a-53a), and to injunctive relief against 
Trans Union but not against petitioner, which was no longer 
engaged in the credit reporting business (id. at 57a-64a). 

6 

that it had “followed this approach in interpreting an 
analogous statute,” the Privacy Act of 1974, 5 U.S.C. 
552a (1994 & Supp. V 1999). Applying the discovery 
rule, none of respondent’s claims was time-barred. Pet. 
App. 6a. 

The court also held that petitioner’s disclosures of 
respondent’s information in response to requests gener- 
ated by Andrea Andrews’ activities violated Section 
1681b, and that the jury should have been allowed to 
consider whether petitioner’s procedures for deciding 
to make such disclosures were nonetheless reasonable 
enough to insulate petitioner from liability under Sec- 
tion 1681e(a). See Pet. App. 6a-8a. The court affirmed 
the judgment entered for petitioner on those claims 
that had been tried, and remanded the case for trial of 
respondent’s remaining claims. Id. at 8a-9a. 

SUMMARY OF ARGUMENT 

A credit reporting agency may become subject to 
private civil liability under the FCRA by failing to 
follow reasonable procedures to assure that the infor- 
mation it maintains is accurate, and that information is 
disclosed to third parties only as permitted by the Act. 
When a report containing inaccurate information is re- 
leased, however, or information concerning a consumer 
is inappropriately disclosed, considerable time often 
elapses before the affected consumer has any reason to 
learn of the violation. The issue is whether, in light of 
this circumstance, the Act’s two-year statute of limita- 
tions should begin to run only once the potential 
plaintiff knows or should know that she has been 
harmed. 

The first question to be addressed is whether the 
language of the Act will bear that construction. Under 
15 U.S.C. 1681p, a private action must be brought 

7 

“within two years from the date on which the liability 
arises.” This Court has endorsed the use of a “dis- 
covery rule,” under otherwise appropriate circum- 
stances, when a limitation period runs from the time a 
“claim” or “cause of action” “accrues.” Courts of ap- 
peals have also applied the rule under the very similar 
limitation provision in the Privacy Act, which requires 
that an action “to enforce any liability created under” 
that Act be brought “within two years from the date on 
which the cause of action arises.” 5 U.S.C. 552a(g)(5). 
The “liability arises” language of Section 1681p does not 
differ from the language in those other provisions in 
any way that precludes the use of a discovery rule. 

That conclusion does not change because Section 
1681p—like the Privacy Act—includes an express anti- 
concealment provision. That provision is not, as peti- 
tioner contends, simply a “limited discovery rule.” It 
incorporates a version of the judicial doctrine of “equit- 
able estoppel,” which is distinct both from the discovery 
rule and from the related doctrine of equitable tolling. 
Because each principle has its own domain, and because 
the circumstances under which FCRA claims typically 
arise strongly support the use of a discovery rule, Con- 
gress’s inclusion of an express version of one principle 
does not compel the conclusion that it intended to 
exclude application of the others. Nor would the use of 
a discovery rule render the express provision “superflu- 
ous.” 

Because the text of the Act neither requires nor 
precludes use of a discovery rule, the question becomes 
how the limitation provision is best interpreted, “in the 
light of the general purposes of the statute and of its 
other provisions, and with due regard to those practical 
ends which are to be served by any limitation of the 
time within which an action must be brought.” Reading 

8 

Co. v. Koons, 271 U.S. 58, 62 (1926). A primary purpose 
of limitations—to encourage the prompt presentation of 
claims—is not implicated until events may fairly be 
expected to put a potential plaintiff on notice of the 
need for diligence in discovering and presenting the 
claim. Accordingly, this Court has applied the discov- 
ery rule to cases involving medical malpractice and 
latent occupational injuries—cases in which potential 
plaintiffs often will not learn of their injuries until some 
time after they have been inflicted. The FCRA, like 
the Privacy Act, fits that model. 

That conclusion is consistent with Congress’s selec- 
tion of a relatively short limitation period, and with the 
history and structure of the Act. Although Congress 
expected potential plaintiffs to be diligent in pursuing 
suspected claims, there is no reason to think that it 
intended to impose a limitation period that would begin 
to run against claims that even a diligent consumer had 
no reason to suspect. Moreover, because enforcement 
of the Act’s provisions relies to a significant extent on 
private litigation, use of a discovery rule serves the 
public interest, as well as the interests of private liti- 
gants. Such a rule strikes the proper balance between 
potential defendants’ legitimate interest in repose, and 
the private and public interests in ensuring that 
potential plaintiffs have a fair opportunity to discover 
and present claims under the Act. 

9 

ARGUMENT 

The Fair Credit Reporting Act requires, among 
other things, that credit reporting agencies maintain 
reasonable procedures both to assure “maximum possi- 
ble accuracy” of the information in their consumer 
credit files and to avoid releasing that information to 
any third party except as specifically permitted by the 
Act. 15 U.S.C. 1681e(a)-(b). Those obligations are 
enforced in large part through private damage suits 
under the Act. 15 U.S.C. 1681n-1681o (1994 & Supp. V 
1999). The Act operates in a context, however, in which 
an individual will frequently have no immediate reason 
to know if a credit report containing inaccurate infor- 
mation has been released, or if a report is released to an 
unauthorized person or for an unauthorized purpose. 
The question presented here is whether, in that unusual 
statutory context, the Act’s two-year statute of limita- 
tions on private enforcement actions should begin to 
run only once the potential plaintiff becomes (or should 
become) aware that she has suffered some injury. 

In answering that question, the first inquiry is 
whether the language of the Act will permit such a 
construction. If it will, then the question becomes 
whether that is the best interpretation of the Act, “in 
the light of the general purposes of the statute and of 
its other provisions, and with due regard to those 
practical ends which are to be served by any limitation 
of the time within which an action must be brought.” 
Crown Coat Front Co. v. United States, 386 U.S. 503, 
517 (1967) (quoting Reading Co. v. Koons, 271 U.S. 58, 
62 (1926)). 

10 

I. THE LANGUAGE OF THE FAIR CREDIT REPORT- 
ING ACT PERMITS THE USE OF A DISCOVERY 
RULE IN DETERMINING WHEN THE STATUTORY 
LIMITATION ON PRIVATE ENFORCEMENT AC- 
TIONS BEGINS TO RUN 

A. Use Of A Discovery Rule Is Consistent With The 

Act’s Provision That The Time For Suit Runs From 

The Time That “Liability Arises” 

Section 618 of the Act, 15 U.S.C. 1681p, provides 
that: 

An action to enforce any liability created under this 
[Act] may be brought * * * within two years from 
the date on which the liability arises, except that 
where a defendant has materially and willfully 
misrepresented any information required under this 
subchapter to be disclosed to an individual and the 
information so misrepresented is material to the 
establishment of the defendant’s liability to that 
individual under this subchapter, the action may be 
brought at any time within two years after dis- 
covery by the individual of the misrepresentation. 

That language does not foreclose the use of a discovery 
rule, under which a “liability” under the Act would first 
“arise[],” so as to start the running of the limitation 
period, when a potential plaintiff first learns (or with 
due diligence should learn) that she has been injured by 
the conduct of a potential defendant. 

This Court has not previously interpreted a statute 
of limitations that uses the particular “liability arises” 
language that is found in Section 1681p. The Court has, 
however, held that where it is otherwise appropriate, a 
discovery rule is compatible with similar language 
under which a limitation period begins to run when a 

11 

“claim” or a “cause of action” “accrues.” In United 
States v. Kubrick, 444 U.S. 111, 113, 119-122 (1979), the 
Court rejected the argument that a “claim” for medical 
malpractice under the Federal Tort Claims Act 
“accrue[d],” under the applicable statute of limitations, 
28 U.S.C. 2401(b), only when the plaintiff learned that 
he might be entitled to legal relief for his injury. The 
Court concluded that such a generous rule would 
unduly undermine the purposes of the Act’s limitation 
provision. 444 U.S. at 123. The Court endorsed, how- 
ever, the rule that a malpractice “claim ‘accrues’ within 
the meaning of the [FTCA] when the plaintiff knows 
both the existence and the cause of his injury.” Id. at 
113; see id. at 122. Thus, the statute of limitations on 
Kubrick’s claim began to run when he learned that his 
loss of hearing was probably caused by earlier treat- 
ment with an antibiotic—neither earlier, at the time of 
the treatment itself, nor later, when Kubrick was first 
told that the treatment had been improper. Id. at 113- 
114, 118-123. That rule, the Court concluded, properly 
balanced the interests in fairness and repose in the 
malpractice context.3 

In first interpreting the FTCA’s limitation provision 
to include a discovery rule for malpractice cases, lower 

3 By contrast, the “standard rule” in most circumstances is that 
“the limitations period commences when the plaintiff has ‘a com- 
plete and present cause of action,’ ” Bay Area Laundry & Dry 
Cleaning Pension Trust Fund v. Ferbar Corp., 522 U.S. 192, 201 
(1997), which normally occurs once all the elements giving rise to 
the cause of action have come into existence, see Note, Develop- 
ments in the Law: Statutes of Limitations, 63 Harv. L. Rev. 1177, 
1200-1201 (1950). See also Zenith Radio Corp. v. Hazeltine Re- 
search, Inc., 401 U.S. 321, 338-342 (1971); United States v. Lindsay, 
346 U.S. 568, 569 (1954) (“In common parlance a right accrues 
when it comes into existence[.]”). 

12 

federal courts relied on this Court’s decision in Urie v. 
Thompson, 337 U.S. 163, 168-171 (1949). See Kubrick, 
444 U.S. at 120 n.7. Urie involved an action under the 
Federal Employers’ Liability Act by a plaintiff who 
sought compensation for the disabling effects of long- 
term exposure to silica dust at work. 337 U.S. at 165- 
166. The Court held that the employee’s “cause of 
action” did not “accrue[]” for purposes of the FELA’s 
limitation provision, 45 U.S.C. 56, until he became dis- 
abled and was diagnosed with silicosis. 

337 U.S. at 168- 
171. 

The Court rejected the argument that because Urie 
“must unwittingly have contracted silicosis long before” 
it disabled him, his cause of action must have “accrued” 
at that time. 337 U.S. at 169. The Court concluded that 
in framing a “humane legislative plan” such as the 
FELA, Congress would not have “intended such conse- 
quences to attach to blameless ignorance.” Id. at 170. 
Moreover, a holding that the limitation period began to 
run before the employee had any reason to know he had 
been injured would be inconsistent with “the traditional 
purposes of statutes of limitations, which convention- 
ally require the assertion of claims within a specified 
period of time after notice of the invasion of legal 
rights.” Ibid. (emphasis added). Instead, the Court 
agreed with the statutory construction adopted by a 
state court in an analogous workers’ compensation case, 
under which “the afflicted employee can be held to be 
‘injured’ only when the accumulated effects of the dele- 
terious substance manifest themselves.” Ibid. (quoting 
Associated Indemnity Corp. v. State Indus. Accident 
Comm’n, 12 P.2d 1075, 1076 (Cal. Ct. App. 1932), dis- 
approved in part on other grounds, Colonial Ins. Co. v. 
Industrial Accident Comm’n, 172 P.2d 884 (Cal. 1946)). 

13 

Although the “liability arises” language used in 
Section 1681p is not the same as that construed in Urie 
and Kubrick, it does not differ in any way that pre- 
cludes the use of a discovery rule.4 To the contrary, 
because the legal rights that may be vindicated through 
litigation are inversely related to legal duties subject to 
judicial enforcement, one would normally expect a 
potential defendant’s legal “liability” to “arise,” at least 
for purposes of a statute of limitations, at the same time 
that the potential plaintiff ’s “claim” or “cause of action” 
“accrues.” That expectation is reenforced in this case 
by the first phrase of Section 1681p, which refers to the 
plaintiff ’s potential action not as a “claim” or a “cause of 
action,” but as “[a]n action to enforce any liability 
created under” the Act. Similarly, the Section’s ex- 
press anti-concealment provision applies, by its terms, 
when misrepresented information is “material to the 
establishment of the defendant’s liability” to a potential 
plaintiff. Thus, in drafting Section 1681p, Congress 
simply spoke consistently in terms of legal “liability” 
rather than in terms of a legal “claim” or “cause of 
action.” 

It is instructive to compare the language of Section 
1681p with the very similar limitation provision in the 
Privacy Act of 1974, 5 U.S.C. 552a(g)(5). That provision 

4 There are some statutes whose language in context leaves 
little doubt about when a limitation period begins to run, or that 
the only applicable discovery rule is one expressed in the text. See 
United States v. Beggerly, 524 U.S. 38, 48 (1998); United States v. 
Brockamp, 519 U.S. 347, 350-352 (1997) (“unusually emphatic” and 
detailed language concerning date tax return was filed or tax was 
paid excluded even equitable tolling); Lampf, Pleva, Lipkind, 
Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 360 & n.6, 362 n.8, 
363 (1991); Herget v. Central Nat’l Bank & Trust Co., 324 U.S. 4 
(1945). This is not such a case. 

14 

also refers to actions “to enforce any liability created 
under” the Act, and includes a concealment provision 
that refers to establishment of the defendant’s “liabil- 
ity.” While the limitation period under the Privacy Act 
runs from the date on which the cause of action arises, 
rather than the date on which the liability arises, as in 
the FCRA, there is no reason to suspect that Congress 
attached significance to that difference in phraseology. 
To the contrary, the use of the different phrases in 
otherwise directly comparable provisions strongly sug- 
gests that Congress viewed the terms as interchange- 
able. Cf. Bay Area Laundry & Dry Cleaning Pension 
Trust Fund v. Ferbar Corp., 522 U.S. 192, 201 (1997) 
(construing statute that speaks in terms of when a 
“cause of action” “arose”); Holmberg v. Armbrecht, 327 
U.S. 392, 397 (1946) (not reaching question “[w]hen the 
liability, if any, accrued in this case”). As the court 
below in this case noted (Pet. App. 6a), courts of 
appeals have uniformly construed the Privacy Act 
limitation provision to incorporate a discovery rule. 
See Englerius v. Veterans Admin., 837 F.2d 895, 898 
(9th Cir. 1988) (citing cases); Tijerina v. Walters, 821 
F.2d 789, 797-798 (D.C. Cir. 1987); see also Akutowicz v. 
United States, 859 F.2d 1122, 1126 (2d Cir. 1988). The 
United States has long acquisced in that holding. 

Thus, under this Court’s cases, the language of Sec- 
tion 1681p neither compels nor precludes a determina- 
tion that liability does not “arise[],” or the limitation 
period begin to run, “until the plaintiff has discovered 
both [her] injury and its cause.” Kubrick, 444 U.S. at 
120; cf. Klehr v. A.O. Smith Corp., 521 U.S. 179, 192-193 
(1997) (noting that language of a borrowed limitation 
provision “does not necessarily provide all the an- 
swers,” and deferring consideration of “various [possi- 
ble] discovery accrual rules”). Although every statute 

15 

must be considered on its own terms, appellate deci- 
sions construing the Privacy Act confirm that such an 
interpretation of the language is permissible, and sug- 
gest that it would be appropriate here as well. 

B. Inclusion Of An Express Anti-Concealment Provision 

In Section 1681p Does Not Imply A Congressional 

Intention To Prohibit Use Of A Discovery Rule 

The foregoing conclusion does not change because 
Section 1681p—like Section 552a(g)(5)—includes an 
express anti-concealment provision. That provision is 
not, as petitioner contends (Br. 20-21), simply a “limited 
discovery rule.” It incorporates, instead, a version of 
the judicial doctrine of equitable estoppel. That doc- 
trine is distinct both from the discovery rule and from 
the related doctrine of equitable tolling. Congress’s 
decision to include an express version of one principle in 
the text of the Act does not compel the conclusion that 
it intended to exclude application of the others—at 
least here, where the particular circumstances under 
which FCRA actions typically arise otherwise support 
the use of a discovery rule. See pp. 24-30, infra. Nor 
would the use of a discovery rule render the anti- 
concealment provision “superfluous” (Pet. Br. 23). 

1. In United States v. Brockamp, 519 U.S. 347, 348- 
349 (1997), two taxpayers claimed that they suffered 
from disabilities (senility or alcoholism) that had pre- 
vented them from complying with the statutory dead- 
line for filing tax refund claims under 26 U.S.C. 6511, 
and that their time for filing suit should be extended 
under principles of “equitable tolling.” The Court 
concluded that such tolling would be inconsistent with 
the structure and purpose of the relevant tax laws. See 
519 U.S. at 350-354. The Court’s opinion does not itself 
define “equitable tolling.” The Court instead relied, for 

16 

that purpose, on citations to two authorities: 4 C. 
Wright & A. Miller, Federal Practice and Procedure 
§ 1056 (2d ed. 1987 & Supp. 1996) (Wright & Miller), and 
Judge Posner’s opinion for the Seventh Circuit in Wolin 

v. Smith Barney Inc., 83 F.3d 847, 852 (1996). 
Both those authorities draw a distinction, important 
here, between the doctrines of “equitable tolling” and 
“equitable estoppel.” See Wright & Miller § 1056, at 48- 
58 nn.25.1-25.3 (Supp. 2001); Wolin, 83 F.3d at 852-853; 
see also 2 C. Corman, Limitation of Actions, chs. 8-10 
(discussing tolling), 11 (discussing discovery rule) (1991 
& Supp. 1993). Wolin explains that “[e]quitable tolling 
is invoked when the prospective plaintiff simply does 
not have and cannot with due diligence obtain infor- 
mation essential to bringing a suit,” whereas “[e]quit- 
able estoppel * * * is invoked when the prospective 
defendant * * * make[s] * * * a special effort to 
cover up [a] fraud or does something else to prevent the 
prospective plaintiff from suing in time, such as 
promising not to plead the statute of limitations as a 
defense,” 83 F.3d at 852, or actively “conceal[ing] his 
identity or other facts that the plaintiff needed in order 
to be able to file suit” (id. at 850). The two doctrines 

differ critically in scope in the following respect: 
when the plea is equitable tolling rather than equi- 
table estoppel, the defendant is innocent of the delay 
(though not of course of the original wrong), so the 
plaintiff must use due diligence to be allowed to toll 
the statute of limitations; if he does not, he has no 
equitable claim to avoid the time bar. In the case of 
equitable estoppel, which requires active miscon- 
duct by the defendant, the plaintiff is not required 
to be diligent. 

17 

Id. at 852. The particular form of “active misconduct” 
in which a defendant conceals its identity or other facts 
critical to the plaintiff’s ability to bring suit is a “part of 
[the equitable estoppel doctrine] that goes by the name 
‘fraudulent concealment.’ ” Id. at 850; see also id. at 855 
(fraudulent concealment “is not a synonym for equitable 
estoppel, though it overlaps with it”). 

From this discussion, it is clear that the anti-con- 
cealment provision that Congress included in Section 
1681p addresses issues of equitable estoppel, and in 
particular of fraudulent concealment. Cf. Wolin, 83 
F.3d at 850 (discussing analogous provision in 29 U.S.C. 
1113(a)); 83 F.3d at 855 (noting possible effect of inclu- 
sion of express statutory provision concerning conceal- 
ment on continued applicability of other aspects of 
equitable estoppel doctrine). The provision does not 
apply unless the defendant has “willfully misrepre- 
sented” to the plaintiff information that it had a duty to 
disclose under the FCRA, and that is “material to the 
establishment of the defendant’s liability”—and, ac- 
cordingly, of the plaintiff ’s right to sue—under the Act. 
15 U.S.C. 1681p. When it does apply, the limitation 
period runs from “discovery by the [plaintiff] of the 
misrepresentation”—without regard to the plaintiff’s 
diligence in uncovering the defendant’s misconduct. In 
enacting those provisions, Congress may well have 
“modifie[d] and supplant[ed] the judge-made doctrine” 
of equitable estoppel. Cf. Wolin, 83 F.3d at 850 (dis- 
cussing analogous provision). There is, however, no 
reason to conclude in this case that in addressing 
fraudulent concealment, Congress meant to preclude 
use of the discovery rule in construing or applying 
Section 1681p. 

That rule is “another judge-made doctrine of statute 
of limitations law generally applicable in federal cases 

18 

(unless of course modified by statute * * *),” and it 
“must be distinguished from” both equitable estoppel 
and equitable tolling. Wolin, 83 F.3d at 852; see also 
Connors v. Hallmark & Son Coal Co., 935 F.2d 336, 
340-341 (D.C. Cir. 1991) (R.B. Ginsburg, J.) (deciding 
case on discovery-rule grounds and therefore not reach- 
ing issues of fraudlent concealment); Wright & Miller 
§ 1056, at 46-48 n.1.2 (Supp. 2001). Wolin relies, in turn, 
on the discussion of the different doctrines in Cada v. 
Baxter Healthcare Corp., 920 F.2d 446, 450-453 (7th 
Cir. 1990) (Posner, J.), cert. denied, 501 U.S. 1261 
(1991). This Court too has noted the distinction. See 
Klehr, 521 U.S. at 192 (citing Cada for its “descri[ption 
of the] differences among various discovery rules and 
doctrines of ‘equitable tolling’ and ‘equitable estop- 
pel’ ”); cf. Rotella v. Wood, 528 U.S. 549, 554 n.2 (2000) 
(reserving applicability of discovery rule in private 
suits under Racketeer Influenced and Corrupt Organi- 
zations Act); id. at 561 (citing Klehr as noting “distinc- 
tions between different equitable devices” that might 
also apply). 

Wolin explains that under the discovery rule, “the 
statute of limitations does not even begin to run until 
the prospective plaintiff learns or should learn that he 
has been injured.” 83 F.3d at 852. Equitable tolling 
and estoppel, by contrast, normally operate “[a]fter the 
statute of limitations starts running,” and define certain 
circumstances under which running of the period may 
be “arrested.” Ibid. Cada elaborates that where some- 
thing about the original wrongful conduct (such as a 
fraud) “prevent[s] the plaintiff from discovering that he 
is a victim” of the wrong (i.e., that he has been injured), 
the effect of that conduct is “within the domain of the 
discovery rule”; if that rule applies, the circumstances 
will “postpone the date of accrual” of a claim and the 

19 

beginning of the limitation period. 920 F.2d at 451. In 
the case of equitable tolling or estoppel, by contrast, 
“the plaintiff is assumed to know that he has been 
injured, so that the statute of limitations has begun to 
run; but he cannot obtain information necessary to 
decide whether the injury is due to wrongdoing and, if 
so, wrongdoing by the defendant.” Ibid. 

Thus, these doctrines differ from the discovery rule 
in the following respects. First, because the discovery 
rule governs the time when the limitation period begins 
to run, a plaintiff is, by definition, entitled to the benefit 
of the entire limitation period after the time she learns 
(or should learn) that the defendant’s conduct has 
injured her. Under equitable estoppel as a judicial doc- 
trine, the plaintiff would be entitled to the full statutory 
limitation period, plus any time during which the 
defendant succeeded in actively concealing some fact 
material to the plaintiff ’s right or decision to sue. 
Cada, 920 F.2d at 452. Under equitable tolling, how- 
ever, where the plaintiff lacks critical information but 
the defendant has not actively concealed that infor- 
mation, the plaintiff is, under Cada, entitled only to 
whatever extension of the statutory period (if any) is 
reasonably necessary to allow her time to sue. Id. at 
453. The plaintiff must, in other words, “bring suit 
within a reasonable time after [s]he has obtained, or by 
due diligence could have obtained, the necessary infor- 
mation.” Ibid.; see also Wolin, 83 F.3d at 852-853. 

Second, equitable tolling is often claimed on the basis 
of some sort of special disability—such as minority, 
illness, or absence of the plaintiff or defendant from the 
jurisdiction—that prevented the potential plaintiff 
from suing in the time ordinarily allowed. See, e.g., 
Brockamp, 519 U.S. at 348 (senility and alcoholism 
claimed as extenuating disabilities); 2 Corman, supra, 

20 

chs. 9-10. The analysis therefore focuses on the actual 
circumstances of a particular plaintiff. Equitable estop- 
pel focuses on whether, and for how long, special con- 
duct by a particular defendant wrongfully prevented 
the plaintiff from suing that defendant to seek redress 
for a known injury. See Wolin, 83 F.3d at 850, 852. In 
contrast to each of those doctrines, the discovery rule 
asks when a potential plaintiff knew, or when a rea- 
sonable person in her position should have known, that 
she had been injured by the defendant’s conduct. See 2 
Corman, supra, § 11.4 & n.2; see also id. §§ 11.5.6 & 

n.51, 11.5.8. It is therefore most appropriately em- 
ployed where the very fact of injury may not ordinarily 
be apparent to the person injured. See Connors, 935 
F.2d at 342-343. 

The discovery rule and the doctrines of tolling and 
estoppel are, of course, closely related, and Cada points 
out that they are “frequently confused.” 920 F.2d at 
451; see also, e.g., Wolin, 83 F.3d at 852; cf. Klehr, 521 
U.S. at 192 (reserving judgment on related issues and 
noting that “[t]he legal questions involved may be 
subtle and difficult.”). Our point here does not depend 
on any comprehensive exploration of their subtleties, or 
reconciliation of their potentially overlapping domains. 
Cf., e.g., Beggerly, 524 U.S. at 48 (indicating that by 
including its own express discovery rule, a statutory 
limitation provision had “already effectively allowed for 
equitable tolling”); Holmberg, 327 U.S. at 397 (dis- 
cussing equitable doctrines and giving as an example 
the discovery rule traditionally applied in cases of 
fraud). What we have said in broad outline concerning 
the relevant background legal principles suffices to 
show that the express anti-concealment provision in 
Section 1681p covers only circumstances that would 
otherwise be addressed primarily by the “fraudulent 

21 

concealment” strain of the equitable estoppel doctrine. 
Because that doctrine is distinct from the discovery 
rule, and because use of the discovery rule is otherwise 
appropriate in the special circumstances the FCRA (see 
pp. 24-30, infra), the fact that Congress chose to 
address directly circumstances that would otherwise 
raise issues of estoppel does not justify an inference 
that it thereby intended to exclude operation of the 
discovery rule in determining when the basic limitation 
period begins to run. Cf. Herman & MacLean v. 
Huddleston, 459 U.S. 375, 387 n.23 (1983) (expressio 
unius maxim “cannot properly be applied to a situation 
where the remedies redress different misconduct and 
where the remedial purposes of the Acts would be 
undermined by a presumption of exclusivity”). 

2. Nor would use of the discovery rule render the 
anti-concealment provision “superfluous.” See Pet. Br. 
23-25. As the foregoing discussion explains, the two 
apply in different circumstances, and address different 
potential problems. The discovery rule applies when a 
potential plaintiff does not even know that she has been 
injured, and prevents the limitation period from begin- 
ning to run until she is (or should be) on notice of the 
injury—at which point she may fairly be held to a 
requirement of due diligence. The concealment provi- 
sion applies, whether or not the plaintiff is aware of the 
injury, if the defendant attempts through wrongful 
misrepresentations to prevent or dissuade the plaintiff 
from filing suit, and seeks to ensure that the defendant 
will not profit from that conduct. 

These differences lead to the use of different criteria 
for when the limitation period begins to run: When the 
potential plaintiff learned or should have learned of her 
injury, or when she actually learned of the potential 
defendant’s wrongful misrepresentations. As the Dis- 

22 

trict of Columbia Circuit explained in a Privacy Act 
case, rejecting essentially the same argument peti- 
tioner makes here, the difference between the date 
when the plaintiff should, with due diligence, have 
learned of her injury and the date that she actually 
learned, with or without diligence, of a defendant’s 
related misrepresentation is enough to give each rule 
independent scope. See Tijerina, 821 F.2d at 798; cf. 
Wolin, 83 F.3d at 852 (distinguishing tolling from 
estoppel based on diligence requirement). 

A simple example clarifies the point. If a credit 
reporting agency included false derogatory information 
in a consumer’s file and released it to a requester, in 
violation of the Act, but the consumer had no reason to 
learn of the wrong (for instance, because the requester 
granted her credit in any event—although perhaps on 
less favorable terms than it otherwise would have 
offered), under the discovery rule the limitation period 
in Section 1681p would not begin to run. If another 
requester, receiving the same information, later denied 
the consumer credit, the consumer would presumably 
be put on inquiry notice of the violation, and the dis- 
covery rule would start the running of the normal 
limitation period—whether or not the consumer took 
any further action. If, however, the consumer then 
asked the reporting agency whether it had provided a 
report to the second requester, and the agency denied 
doing so, then the basic period would become irrelevant 
as to that defendant. The anti-concealment rule would 
start a new period running whenever the consumer 
later actually discovered that the defendant had lied to 
her—even if the consumer had other means of learning 
the truth at the time of the first denial, and even if she 
did not diligently pursue the matter thereafter. 

23 

The discovery rule would not, therefore, “operate in 
exactly the same manner” as the anti-concealment pro- 
vision, even “[a]s a practical matter.” See Pet. Br. 24. 
First, it is not true that a potential plaintiff who is able 
to invoke the concealment provision is necessarily “also 
blamelessly ignorant of her claims and therefore pro- 
tected by a general discovery rule.” Ibid. Such a 
plaintiff might well be on at least inquiry notice of her 
claims, and thus outside the protection of the discovery 
rule, at the time a misrepresentation is made. Or a 
plaintiff who is on notice may never make the inquiry 
that might trigger either a misrepresentation or an 
honest response. Indeed, that would be the classic 
situation for the operation of any statute of limitations 
—when the plaintiff is on notice that she has (or may 
have been) been injured, and has enough information to 
pursue her right to legal redress, but does not do so 
with due diligence. See, e.g., Kubrick, 444 U.S. at 122- 
125. 

Second, it is not true that “the limitations period 
under a general discovery rule would commence at the 
same time as the period under the” concealment provi- 
sion. See Pet. Br. 24. In cases where there is a 
misrepresentation, the general period may or may not 
have begun to run before that time, depending on 
whether other circumstances have given the potential 
plaintiff reason to know that she has been injured by 
conduct within the purview of the Act. For the same 
reason, the basic limitation period in such a case might 
or might not, in theory, “run for the same two-year 
period” as the period established by the concealment 
provision. Whether it would or not is of little moment, 
however, because if there is a misrepresentation, the 
concealment provision wholly supplants the basic 
limitation period with respect to the misrepresenting 

24 

defendant—whether or not the discovery rule is, or 
otherwise would have been, used to determine when 
that period began to run. The basic period operates in 
cases—presumably the vast majority—in which there is 
not a misrepresentation; and in those cases, a variety of 
other attendant circumstances will determine when a 
potential plaintiff first had enough information to 
trigger a duty of diligence in deciding whether or not to 
pursue a legal remedy under the FCRA. 

II. USE OF A DISCOVERY RULE BEST COMPORTS 
WITH THE HISTORY, STRUCTURE, AND PUR- 
POSES OF THE FAIR CREDIT REPORTING ACT 

Because the text of Section 1681p neither requires 
nor precludes the use of a discovery rule for purposes of 
the basic limitation period, the real question in this case 
is which of two possible statutory constructions—a 
discovery rule, or a strict time-of-violation rule—is the 
more appropriate one. This Court has repeatedly cau- 
tioned that such an inquiry is purposive, not “technical” 
or “mechanical.” Crown Coat Front, 386 U.S. at 517; 
Urie, 337 U.S. at 169; Reading Co., 271 U.S. at 61-62 
(“We do not think it is possible to assign to the word 
‘accrued’ any definite technical meaning which by itself 
would enable us to say whether the statutory period 
begins to run at one time or the other.”); cf. Klehr, 521 
U.S. at 192-193 (deferring consideration of possible 
accrual rules). In Kubrick, for example, the Court 
accepted the basic discovery rule (awareness of injury 
and cause) as appropriate for malpractice cases under 
the FTCA, but rejected a more generous rule because it 
“would undermine the purpose of the limitations stat- 
ute, which is to require the reasonably diligent pres- 
entation of tort claims.” 444 U.S. at 123; see id. at 122- 
125. As Kubrick demonstrates, such distinctions are to 

25 

be made by interpreting any given limitation provision 
“in the light of the general purposes of the statute and 
of its other provisions, and with due regard to those 
practical ends which are to be served” by the limitation 
period. Reading Co., 271 U.S. at 62; cf. Burnett v. New 
York Cent. R.R., 380 U.S. 424, 426-436 (1965) (pur- 
posive analysis of tolling question). In the case of the 
FCRA, those considerations favor use of a discovery 
rule. 

The “obvious purpose” of a limitation provision “is to 
encourage the prompt presentation of claims.” Kub- 
rick, 444 U.S. at 117. Limitation of actions protects 
potential defendants and the courts from the need to 
litigate stale claims—after “affording plaintiffs what 
the legislature deems a reasonable time to present 
th[ose] claims.” Ibid. In the ordinary case, in which 
conduct by a known defendant has arguably led to a 
known or alleged injury to the plaintiff, those dual 
purposes are well served by starting the running of the 
limitation period from the time when the plaintiff ’s 
claim is first ripe for legal resolution. See note 3, supra; 
Connors, 935 F.2d at 342. 

In certain types of cases, however, the plaintiff often 
will not learn of an injury, in the ordinary course, until 
some time after it has been inflicted. In such cases it 
may be meaningless to require “diligence” by the 
plaintiff from the time of the unsuspected injury, and 
inconsistent with legislative intent to allow a period of 
limitation to begin to run (and perhaps to run com- 
pletely) before the plaintiff is even aware of the basic 
factual predicates for her potential cause of action. It is 
in such situations that this Court has applied the 
discovery rule. See Kubrick, 444 U.S. at 122 (medical 
malpractice) (“That [the plaintiff] has been injured in 
fact may be unknown or unknowable until the injury 

26 

manifests itself; and the facts about causation may be in 
the control of the putative defendant, unavailable to the 
plaintiff or at least very difficult to obtain.”); Urie, 337 
U.S. at 170 (compensation for latent occupational 
injury) (Remedial legislation would not have “intended 
such consequences to attach to blameless ignorance”; 
rather, “statutes of limitations * * * conventionally 
require the assertion of claims within a specified period 
of time after notice of the invasion of legal rights.”); see 
also Holmberg, 327 U.S. at 397 (fraud). 

The FCRA fits this model. As the D.C. Circuit ob- 
served about the Privacy Act, the FCRA “seeks to pro- 
vide a remedy for [wrongful] conduct that by its very 
nature is frequently difficult to discover.” Tijerina, 821 
F.2d at 797. As with Privacy Act violations, “unau- 
thorized, unconsented-to disclosure[s]” of credit infor- 
mation, or careless inclusions of inaccurate information 
in a credit report, are “unlikely to come to the subject’s 
attention until [they] affect[] him adversely, if then,” 
and “possible violations of the Act are often not 
immediately apparent to the aggrieved individual.” Id. 
at 797-798. Thus, in construing the FCRA, as in con- 
struing the Privacy Act, “Congress’s desire to provide a 
civil remedy would be poorly served if the cause of 
action could arise before the plaintiff even had reason to 
know of the violation.” Id. at 798; see also Connors, 935 
F.2d at 343 (holding discovery rule applicable under 
different statute because conduct was “likely to [cause] 
a hidden injury, similar to the type of injury that has 
long triggered the discovery rule,” and because use of 
rule would be consistent with Congress’s remedial 
intent). It is similarly appropriate to construe Section 
1681p to include the discovery rule. 

That conclusion is consistent with the length of the 
FCRA limitation period. Where a statute permits an 

27 

unusually long time to bring suit, Congress may already 
have taken into account the difficulties a plaintiff may 
face in learning the facts necessary to perfect his cause 
of action. Cf. Beggerly, 524 U.S. at 48-49 (taking “un- 
usually generous nature” of 12-year period into account 
in rejecting equitable tolling under the Quiet Title Act). 
The FCRA’s two-year period is, however, not lengthy, 
and suggests that Congress would not have expected 
the period to begin to run until the potential plaintiff is 
on at least inquiry notice of a possible claim. 

Use of a discovery rule is also consistent with the 
history and structure of the FCRA. As petitioner 
recognizes (Br. 36), Congress when it adopted the Act 
was well aware of the difficulties then facing consumers 
in discovering how or whether they might have been 
harmed by credit reporting practices. Although the 
Act addressed those difficulties in part by adopting new 
disclosure rules and record-correction mechanisms, see 
15 U.S.C. 1681g-1681i (1994 & Supp. V 1999), it also 
required reporting agencies to follow “reasonable pro- 
cedures” to ensure the accuracy of their reports, 
15 U.S.C. 1681e(b), and to ensure compliance with the 
Act’s specific restrictions on the release of information 
to third parties, 15 U.S.C. 1681b (1994 & Supp. V 1999); 
15 U.S.C. 1681e(a). Those procedural requirements 
were to be enforced in large part through private law- 
suits. 15 U.S.C. 1681n-1681o (1994 & Supp. V 1999). In 
enacting those provisions, Congress was surely aware 
that the nature of the credit reporting business would 
not fundamentally change, and that many records 
would still be compiled and released to third parties 
without any direct notice to the affected consumer. 
Although it no doubt expected potential plaintiffs to be 
diligent in pursuing suspected claims—in part by using 
the Act’s new tools for forcing disclosures by the 

28 

reporting agencies—there is no reason to think it 
intended to impose a limitation period that would run 
even as to claims a consumer had no reason to suspect.5 

That conclusion serves the public interest, as well as 
the interests of private litigants such as respondent. As 
petitioner points out (Br. 30), major credit reporting 
agencies in the United States maintain computerized 
files on nearly 200 million individuals—virtually the 
entire adult population of the United States—and issue 
hundreds of millions of consumer reports every year. 
Although the FCRA gives the Federal Trade Commis- 
sion and other federal officials authority to enforce the 
Act, 15 U.S.C. 1681s (1994 & Supp. V 1999), their 
resources are not sufficient by themselves to ensure 
adequate monitoring of compliance. Enforcement of the 
Act therefore depends to an important degree on 
private damage actions, in which plaintiffs act not only 
on their own behalf, but as “private attorneys general.” 
Rotella, 528 U.S. at 557; cf., e.g., Basic Inc. v. Levinson, 
485 U.S. 224, 231 (1988) (private suits are “an essential 
tool for enforcement” of securities laws). 

5 Petitioner notes (Br. 36-37) that Congress did not adopt in 
haec verba a proposal, offered in testimony by Professor Arthur 
Miller, that the limitation period “should be measured ‘from the 
date of the occurrence of the violation or the date on which the 
violation is discovered.’ ” On the other hand, as petitioner explains 
(Br. 37), the “occurrence” language of various precursor bills was 
ultimately changed, without explanation, to the final “liability 
arises” language of Section 1681p. Neither observation answers 
the question, presented here, whether the language Congress actu- 
ally adopted should or should not be read to incorporate the dis- 
covery rule. Since the language permits such a reading, that ques- 
tion is best answered by examining whether use of the rule is 
consistent with the remainder of the Act and serves its purposes. 

29 

Such actions have become even more important in 
recent years as the phenomenon of identity theft, 
illustrated by the facts of this case, has expanded the 
possibilities for (and potential damage from) violations 
of the Act. Identity theft cases underscore the impor- 
tance of the “reasonable procedures” provisions 
(15 U.S.C. 1681e(a) and (b)) that lie at the heart of 
respondent’s claim on the merits in this case. Yet the 
Federal Trade Commission’s analysis of consumer com- 
plaints indicates that in cases of identity theft it takes 
more than 25% of victims a year or more to discover 
that they have been victimized. In the absence of a 
discovery rule, those victims would have a year or less 
to investigate whether they had been harmed by 
related violations of the FCRA, and if so to bring suit. 

The important public purposes served by private 
litigation can under some circumstances counsel against 
undue extension of a limitation period. See Rotella, 528 
U.S. at 558 (enforcement of statutes through such 
litigation is “an object pursued the sooner the better”). 
It supports, however, the use of a rule under which the 
limitation period begins to run only once a potential 
plaintiff knows that she has been injured. Only then 
may the running of the period effectively encourage a 
private litigant to be diligent in pursuing her potential 
statutory remedies, thereby also serving the public 
interest. Compare id. at 558-559 (“Rotella does not deny 
that he knew of his injury * * * when it occurred[.]”). 

Compared to a rule under which “liability arises” at 
the time of an FCRA violation, even if the affected 
consumer has no reason to know the violation has 
occurred, a discovery rule will somewhat lengthen the 
time during which a defendant may find itself subject to 
suit. By definition, however, it does so only when the 
plaintiff has exercised due diligence. In such situations, 

30 

in which neither party is to blame for the delay in notice 
of injury to the plaintiff, and in which the defendant 
may or may not be operating in complete good faith, the 
discovery rule reconciles the affected interests by 
allowing litigation on the merits of the plaintiff ’s statu- 
tory claims. That outcome serves the ends of justice 
and law enforcement, and imposes on defendants only 
the ordinary costs of establishing that their business 
practices comply with applicable federal law. Accord- 
ingly, in the view of the United States and the Federal 
Trade Commission—the agency charged by Congress 
with principal responsibility for enforcement of the 
FCRA—use of the discovery rule under the FCRA 
strikes the proper balance between potential defen- 
dants’ legitimate interest in repose and the private and 
public interests in ensuring that potential plaintiffs 
receive the full measure of “what the legislature [has] 
deem[ed] a reasonable time to present their claims.” 
Kubrick, 444 U.S. at 117. 

CONCLUSION 

The judgment of the court of appeals should be 
affirmed. 

Respectfully submitted. 

JOHN D. GRAUBERT 

Acting General Counsel 

JOHN F. DALY 

Assistant General Counsel 

LAWRENCE DEMILLE-WAGMAN 

Attorney 
Federal Trade Commission 
BARBARA D. UNDERWOOD 

Acting Solicitor General 

LAWRENCE G. WALLACE 

Deputy Solicitor General 

EDWARD C. DUMONT 

Assistant to the Solicitor 

General 

MAY 2001