between this court and congress that relationship has long been governed in part by two important presumptions relevant here st that congress legislates against the backdrop of the common law and nd that congress legislates aware of this court decisions when congress enacted the f t c in one thousand nine hundred and seventy seven this court have long ago adopted a common law rule venture only known as the discovery rule applicable to cases of fraud in concealment citing to and quoting part the bar of the statute does not begin to run until the fraud is discovered there will be no special circumstance or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party the court then continued in a home birth explaining unequivocally this equitable doctrine is read into every federal statute of limitation and added even those where quote an explicit statute of limitation for bringing suit close quote united states concedes as it has in prior cases that there is a common law discovery will applicable to fraud in concealment in the decision below the rd circuit never mention the home bird case its analysis began and ended with two words in section eight hundred and thirteen d violation occurred the rd circuit understood that those two words by implication not expressly but by implication that said appendix page eight displaced the common law discover a rule applicable to a fraud in reaching this conclusion the rd circuit deployed what i believe is a false dichotomy what the rd circuit described on the one hand is an occurrence rule on the other hand a common law discover in the view of the rd circuit if a congress deploys in a statute the so called occurrence rule the common law discovery rule is presumed to be displeased the rd circuit stated no decision of this court in setting forth this dichotomy between an occurrence rule and of common law discover rule that analysis is that page six of the appendix that conclusion of the st circuit is also in opposition to this court's decision in  dollars in the exploration kates was just discussed at length in our brief in the briefs of the other parties there that is i think fairly characterized as an occurrence rule of a statute in exploration ran from the date of issuance of a land patent so that was a date certain tied to facts that under the fear of a rd circuit of my friends is an occurrence rule and there the court determined that the common law discovery rule should apply to can't  tolly equitable stoppel and what i call the self concealing fraud which was the one mentioned in exploration argued by the government to go belly up and in other cases are you creating a th that that every case every federal statute inherently says for whatever reason if you didn't then what do you make of footnote five in the rd circuit's opinion because four of the i guess there justices are judges the judges would have three men due to allow the district court to consider whether he would be entitled to rely on this doctrine being the self concealing rule because our president had not previously recognize that a defendant self continue it concealing conduct may be a basis for equitable tolling that seems to me that they understood the same thing i did which is that there might be excelled concealing a rule but that you had waived it and that's why those four judges weren't voting to remain at the how do you read that any differently this is as good a time as any to get to an important issue here which is the confusion understanding the relationship between what i'm calling the common law discover rule the daily homework rule and the refrain i was using of fraud or concealment comes from t r w directly which is why i was using it but not intended to create a different doctrine  all of the parties here and the scholars amica sprit of that was submitted all agree that there are as been at times confusing use of terminology and i think it is impeding an understanding of what is really going on in the courts below in this case and in the rd circuit's discussion of these issues including in footnote five that you refer to so let me if i may set in trying to answer your question set forth what i think is the best understanding of the discovery rule on the one hand the equitable to the other hand and then try and bring it directly to your question of what i understand the rd circuit to have been doing it with no five our view is that the best understanding of the discovery rule is that that applies when the plaintiff is unaware of their cause of action or the facts giving rise to the cause of action here the violation because of a fraudulent conduct or self concealing conduct by the defendant and in that situation the clock for the statute of limitations does not begin to run at all equitable tolling on the other hand applies we think best understood in a situation where the plaintiff is aware of the violation giving rise to a cause of action but for some reason and applying the elements set forth in this court exercised due diligence diligently pursued his or her rights but was unable because of some extraordinary circumstance to timely file suit then if the doctrine is deemed to apply then the untimely filing is forgiven and in that circumstance the statute of limitations is best understood to have begun to run but then be told or be added because of the circumstances that's our understanding of the these rules and that's the same understanding i think that the scholars set forth and it's under that view equitable tolling would be best understood is not applicable to this situation now this court i respectfully submit has sometimes used the label of equitable tolling to describe circumstances that i think are best understood as the daily homework discovery rule and that is cause confusion here and in courts below it i think it to cause confusion in the rd circuit and the  circuit appeared to operate under the view at the time this case was decided that self concealing conduct did not qualify that there had to be some separate act apart from the elements of the offense in addition that was concealing an example that i'm familiar with from my own practices and i trust cases where although they use the label of fraudulent concealment which i think is best understood separately as a close cousin of the discovery rule in those circumstances but you have a violation alleged of say section one of the sherman act a conspiracy and most cases when there's a statute of limitations argument that the conduct went back more than the four years provided in the statute there's an argument about whether the conspiracy was concealed most it's there require some additional action in addition to the there the conspiracy itself is there was cover i'm sorry to interrupt is the discovery rule equitable i believe it now but i think it is equitable but also properly understood as an exercise in statutory interpretation i don't think i'm granting you that so the discovery rule could be part of a statute but if it's not part of the statu there exists i think you're saying an equitable discovery rule as well that is akin to but maybe not the same as equitable tolling so your argument yes to the last part of that that i need is given real clear on the answer to clarity we do need clarity i will do my best and i agree that that's useful for everybody there's a distinction between statutory discovery rule obviously am a common law discovered the statutory discovery rule is employed by congress from time to time it was present in its year w for example that was in my understanding the basis for the ruling in that case principally was that congress had and had decided to statutorily right in a discovery rule and then  ying traditional tools of statutory interpretation determined that it wouldn't then also add on the common law just discovered rule so when there is an absence like here of a statutory discover rule then the question becomes to congress intend to permit or displace the addition or in the words a good belly the grafting onto which i don't view as pejoratively but i think my friends on the other side attempt to use that way grafting on or onto or importing into the statute or common law discover rule use common law discoveries that equivalent to equitable discovery i think it's the doctrine that originated in equity but also applied to cases of law the court said that back in daly that the doctrine had its origins  in equity applied to law and it is applied and i think here is where i think that that it's both equitable and origins and i think in nature but but also fundamentally an exercise in statutory interpretation because the touchstone is whether or not intended congress intended to foreclose or permit the application of the common law doctrine to the statute in the absence of express indication if you are arguing in across the board discovery rule applies to was unaware what we're saying is that if they were unaware because of circumstances that fit within the paley homework framework fraud that prevented the plaintiff from knowing about the cause of action under that longstanding it might not be but we have a very dear different circumstance in this case so the facts that are alleged and you'll recall that this case comes to the court on a ruling on the twenty six motion so of course the court construes the allegation accepts the allegations as true the allegations as made and as understood by the lower courts were as follows the respondent retained a process server to serve filed a complaint against  my client there was an affidavit of service filled out that said that the head of the household had been served and that was false and they had and we allege in the fax below assert that they had reason to know that that was false so they filed in a false affidavit of service and that false affidavit of service was then the basis for a default judgment so it's those two actions together the filing of a false affidavit of service and that obtaining a default judgment on that basis that we conten were you i mean the cases that were brought were somebody said give me your land and i will because the land is gold or something on it that was a law so by my land it has gold on it and they sell the land and it doesn't have gold and that sort of about to i've never heard of a fraud case i'm not saying you do you may be actionable i mean it may be that you recover under the statute it may be a bad thing but it doesn't sound like common law fraud to me so is there something that where you the person you brought it is a judge because the process server rightly or wrongly filed the wrong name but that's what you're saying is a common law fraud yes the and what is the what is the case that says a process server who fills in the wrong name and fools the judge is the person who hired the process server is has committed common law fraud well it's not with respect justice prior it's not just the process server and the allegations go further than an innocent mistake we and the other side argues that this was an innocent mistake i'm asking you what here brings your case within the rubric of common law fraud so if we had lord cook in front of us you say he would say oh i recognize this old man still recognizes that that this is common law fraud right that's what i want to know and that that's exactly that's why it is not that was that the next point which was that then the attorneys are the ones who filed the affidavit of service which we contend they had reason to know was false and then except in the false statement of a process or yes you know the closest case that you have found that calls that activity common law fraud is we didn't look for a specific case or you didn't because it's so obvious that it's common law for a while if you may not find a satisfactory but we weren't the only ones here who thought that this constituted fraud the solicitor general's brief i believe it's a page twenty soon i'm not i'm not that i'm just trying to find out  undiscovered for i thought an element of that is that the basic underlying thing is common law fraud and that's what i'm trying to investigate now that if you have nothing more to say i have no c a also acknowledged in their brief that what's what's at issue here it has a name it's called sewer service it's so prevalent that it has a name there was testimony before congress when the f t c p a was an act it representative from the f t c came to didn't make it out the process server was still where the process should be to the process server and i think it's helpful to understand for context here there was an original while they were certainly following the direction to serve process we don't and there is nothing in the record that indicates the substance of the discussion we do know that the st service was attempted in an address and it falsely represented that the defen the plaintiff was personally served he was not also represented he was black cording to the affidavit of service he's not he's caucasian it represented he was fifty one years old he was in his late thirty's at the time that was that and so they had reason and then that suit was withdrawn we believe because they knew that the affidavit of service was false and the plaintiff didn't actually live at that address then a new suit was filed and a new affidavit of service the one at issue was was mister i know this is terribly confusing because of the confusion of the use of terms that's why i can i called it a self concealing a fraud it's not the violation at issue have been several questions so i want to if i could just make this clear because i think the facts are important and they should be addressed on remand we're not saying we when on remand were the other side will get to make its arguments including that we don't fit within the contours of fraud but we believe that this  close what the decision below was you don't get a just a common law discovered rule applied to the statute period that was wrong that should be reversed and we should have an opportunity then to have arguments about these issues whether the approach of the view of justice pri law fraud as described in black's law dictionary which is a misrepresentation it was a knowing misrepresentation of the court they served at an address that they knew was not his they said they serve the head of the household and that was false and then they used that false affidavit made sworn under oath the attorneys then went into court and used that as the basis for obtaining a default judgment which then prevented my client from attending a mortgage which he still doesn't have to this you've referred to remain and a few times i think the other side's argument is that the statute itself does not have a discovery rule and that any equity bull discovery rules which are terming and common mall discovery rule that might exist and last congress expressly displaces it was not raised circuit but home bird and bailey were both cited to the rd circuit and at the time it was clear in the but i think what they're saying and this may not be a winning argument i just want to get your response to i think what they're saying is those are raised in the context of statutory interpretation reading the statute does not contain a discovery rule there may be still an equitable discovery role but you didn't separately i think they're saying that if you can separately raise that kind of a quota will discovery argument your response to that is wrong or under they are wrong in their understanding of the operation of the two words violation occurred and its effect on whether the common law discover rule applies we say that that language is inconclusive with respect to the question of whether or not congress and tenets of permit were preclude the application of the common law discovery rule and we then urge the court to apply traditional tools of statutory interpretation to look to the statutes purpose to eliminate these  practices that are prohibited the structure of the statute we discussed this at length in a breeze and based on those factors we believe it's clear that congress would have intended for the common law discover rule to apply to understand what about your petition in this court because as i read your petition in this court it was more about the general statutory interpretation question whether there is a discovery rule that applies generally in this statute then it is about whether certain equitable exceptions might continue to not address whether there was an equitable exception of of the of the hind the rd circuit might have thought had been waived well that certainly wasn't how it was intended no you may know i didn't draft out as i don't read it that way and i  know for certain that that was not intended to exclude that what may i finish what was intended with the petition to was to raise the question precisely as i attempted to present it this morning which is whether or not congress intended to permit or for close the application of the common law discovery rule to the statute and we contend that congress clearly did not intend to close it thank you counsel rootsy mr chief justice in may please the court mr ganns and i agree that this case is about the relationship between this court and congress congress provided in the f t c p a a that the statute of limitations would begin to run when the violation occurs not when it is discovered that answers the question presented in the circuit the plain meaning of violation occurs concerns when the defendant commits the violation not when the plaintiff learns of it unlike more ambiguous phrases like claim a cruise or liability arises violation occurred simply can't be read any other way and we know congress itself understands violation occurs that way because in other statutes including the one thousand nine hundred and seventy eight right to financial privacy act congress used the phrase violation o like justice ginsburg and justice kagan i understand the question presented here to be whether an across the board discovery rule applies to the f t c p a the that's the only issue that the rd circuit decided the circuit ition does not cite bailey or home bird doesn't mention the word fraud if it had we might have had an argument in our brief in opposition for why this case doesn't present a fraud case and therefore would be a an inadequate vehicle to consider that question so that the only question before this court is what should be whether there's an across the board discovery rule despite all of that mr get focused his argument this morning on the fraud cases there are a number of reasons why the fraud cases don't ultimately help him i'd like to start out focusing on one which is those cases are properly understood a equitable tolling cases not as discovery will cases that's how this court most recently characterized them in cases like a n z and lazaro and it matters for four reasons that the terminology be used correctly and that we distinguish between discovery rule and equitable tolling the four reasons are the following st the two doctrines of discovery one equable coing are different concepts with different sources the discovery rules about how to read the words congress question that's the exercise the t r w was engaged in equitable tolling is about excusing noncompliance with the words the congress has chosen it is an application of courts inherent equitable powers confirmed in the  four i think what t r w was talking about was that the discovery rule might apply to fraud statutes that's different from saying that there is a discovery rule in any case of fraud that happens to arise under a non fraud statute like the that's why the way to think of excusing noncompliance with the limitations period in a situation that did present fraud would be as equitable tolling because equitable tolling is a case by case doctrine in which courts use the and so i couldn't file the suit in time and so you should told the statute of limitations until i can i mean that would be one and then a different one would be this kind of i couldn't possibly have known that the statute of limitations had even started to run because there was fraud committed against me is that right i mean you can put them on wonder an umbrella label but those are two different things aren't they i agree that they would be under the same category of equitable relief because in both situations what a court would be doing is not applying the language that congress wrote congress didn't say anything about earthquakes but congress would be excusing compliance with the language the congress i'm sure the court would be excus with the language that congress wrote based on either the earthquake or fraught with those have in common is that they are under the bucket of equitable relief from what congress wrote and as a warning and as your view that those are for closed by this statute or is your view simply th those arguments were waived and this case has nothing to do about them but them our argument is that those arguments were waived they're not properly before this court the only question before this court is how to read the words that congress wrote and when congress wrote the words violation occurred it didn't leave the door open to read that across the board in every f t p a case as violation occurs or is discussed so you are not taking a position one way or the other about whether those equitable defenses can but i don't think that is presented by this case by this case the issue hasn't been brief the rd circuit didn't the rd circuit how that it was waived it was not presented in the store petition and simply not not part of the show it's it's an open question if you the statute of the sort you have here that those claims could certainly be raised or at least you think it's an open question we're not arguing that that's foreclosed by the statute we're saying that issue is simply not presented by this case and similarly the bailee kind of  equitable years also saying where you're also saying that you're just not saying well we're saying that it wasn't preserved and therefore is not properly before this court at this stage there's no there's no reason and on a question that all all members of the end bank rd circuit court held was waived for members went out of their way to point out in footnote five that they would have remained that if only had been preserved but but it wasn't that i suppose what you tolling are different doctrines that's the rd of them is that i think equitable tolling has a higher bar equitable tolling applies or only in extraordinary circumstances which as this court said in rotella which distinguish between the discovery rule and i quibble talling that's a virtue of that quibble talling that it's the exception not the rule if if the court is going to exercise its inherent equitable powers to override the language that congress has written that should be something that only happens in unusual exceptional circumstances and it should be recollection of how to avoid one the statute might provide for totally that's the argument in front of us you say no not no man should benefit from his own wrong now that might apply here except for the fact that the rd circuit said absolutely waived he never raised it and so forth and he didn't even claim the raise that was but there is a  one and the th one which justice scalia said in this case is a out of bailey which applied from lord cook or something in his ancient origins and that if your basic claim is a claim of fraud if your basic claim is a claim of fraud there is a tolling rule no one was that ever raised clearly probably not two is the basic claim here was a claim that this is  non collectable debt not that it was a fraudulent that i take it that the basic claim was not fraud but i'm not sure on either of those points so should we send it back on those points no and let me unpack that question and make three different points about it st the bailey the bailey wine of authority as judge posner described in that seven circuit case still fits within the category of equitable relief from the statute rather than interpret in the statute and the only question presented in the cert petition set aside even what happened in the rd circuit in the circuit titian here is the question of statutory interpretation circulation doesn't cite bailey doesn't mention fraud it would be quite out of the ordinary for this court to remand for consideration of a question that the lower court considered waived and didn't decide and that the petitioner didn't even raise in the circulation itself  where it has mattered where it has been dispositive of an issue such as in a n z the court has been careful to distinguish between equitable doctrines equable tolling and the discovery rules and that is that is really the only way to read these cases balian holmberg an exploration co they are best understood as equitable cases because throughout those opinions the court is talking about the exercise of the traditional equitable powers  those cases are not engaged in statutory interpretation if you look at a case like bailey or home berg it is not doing the same thing as t r w it's not even holmberg for example is not even asking the question how do we parse the words liability arises or in bailey i think it was cause of action accrued it's not even a question of what that language means it's simply creating an exception to it and that is the better way to understand those those cases in any event even if there were some sort of a fraud discovery rule that still wouldn't help here for three reasons one of which is the waiver which i talked about too even if there is a background even if there were a background fraud discovery rule congress could still overcome that it would still only be a presumption and the language that congress used here a violation of kurds would overcome any common law discovery rule where if a patent issues which is like with a violation occurs we still apply the equitable doctrine to concealment doctrine in exploration even though the languages are almost identical so how do you separate exploration from here because i think what the court was doing in exploration co is best understood as equitable towing not as reading that language about the passion pad issuing to mean pat issuing or is discovered this goes to the fundamental question what is the court doing is it interpret ing language like patent issues or violation occurred to mean something other than what it says or is it exercising the court's inherent equitable power to override what the language that so you're saying there's no can so concealing from whatsoever that the very act that you do this is what they're claiming the very act that the that you are alleged to have done doesn't wouldn't qualify assuming and i know that you take issue with whether you really knew that was his address or not and whether the lawyer just made a mistake in not seeing his files i want to put all that aside let and held on to his judgment until the statute of limitation passed do you believe that there's no common law self concealing fraud there  i don't think that that is common law self concealing fraud i think that might well qualify for equitable towing you don't need to put the fraud label on it for it to be equitable towing in a case where the court actually decided that equitable tolling was properly presented and preserved but i don't think that that would be common law fraud because it does not involve an intentional misrepresentation that that's not an answer to but to the court it's still perhaps it shouldn't if that's what's actually alleged and if it's dealt with as equitable tolling rather than rather than reading language like a violation occurs to trigger the limitations period upon anything other than when the violation occurs with respect to this case though it's not just the waiver in this court and in the rd circuit i'd also direct the court to the complaint in this case it's a three page complaint and it's in the court of appeals appendix at six and the operative complaint itself does not allege what is now being described as so called sewer service the operative complaint alleges that the the debt collection lawsuit here was filed out of  we're dealing with here we are miles removed from the sorts of allegations in some of the amica sprigs about different cases involving sewers and i make sure i have the terminology correct story on the couple the legal points so on the discovery r there's a discovery rules well linked to fraud is just as can spur said you st look to whether it's in the statute you say no it's not in the statute if you're correct about that you see if there is some kind of there's an equitable discovery doctrine also linked to fraud that can apply to your argument is that no one could all doctrines were raised here and therefore we shouldn't consider the scope of how that might apply so accurate i think that we had that in the other part of that is you were making an argument that the words of the statute here expressly displaced equitable discovery and i think that's a shake here argument because that would mean any time it's not in the statute itself it's also meaning discovery it's also expressly displaced you don't need this argument to win but you are giving it as an alternative and i want to pressure on that i said that's actually not the argument that i am intending to make i don't think that congress needs to express lee saying no discovery rule in order to foreclose the discovery will if you had more ambiguous elaine i know i know you're not an equitable doctrine you don't think the congress has to say no equitable doctrines but even for the statutory discovery rule i don't think congress has to express the foreclosed statutory discovery will it in a situation where let's say you had like agree with you on that on the statutory discovery so just assume i'm with them but they're still exists i think you just said that a kind of acquittal discovery rule unless congress has displaced that and i would soon there's a higher bar for congress to expressly displace the equitable discovery then there is for whether it's in the statute in the st place i agree and the only tweak that i would make to i think the way that you formulate all of that i view the equitable discovery rule is just as a species of equitable tolling if like judge posner you want to list out all seven different kinds of equitable doctrines that allow a court to override what congress has written that would be one of them but i think the more helpful way to think of it is that there are two categories there's statutory interpretation what has congress provided as the the the rule to apply across the statute in every f t c p a a case as to that question violation occurs means violation occurs not discovered then there's another bucket of various equitable doctrines that can be invoked under the court's authority to override statutory language so i one of those are present i think that that distinction is helpful but i want to push back on it a little because it's all statutory interpretation isn't it i mean as long as we understand that congress could say and no equitable doctrines shall apply either then in some sense we're doing statutory interpretation even when we say that congress didn't displa statute equitable doctrines aren't way sure there's always the question of whether congress has overridden the longstanding equitable power of the courts to itself override the statutory terms of congress as you said there  question there but the difference between the equitable doctrines and the discovery was i'm using that term is that there is a presumption in favor of the availability of the court's equitable powers and there's a higher bar that congress has needed in order to foreclose that if we're in the equitable bucket you did something akin to a plain statement to get rid of the equitable doctrines in the statute you probably are going to frown on the phrase plain statement but something clear it something clear this court has often looked to the statute of repose and and if you have that this court has read into that sort of situation that congress meant to displace equitable powers thank you begin to run until a violation is discovered that's a question about what the statute means and the text supplies a clear answer no petitioner appears to be abandoning reliance on that broad theory and is now it relying exclusively on this argument from bail fraud rule we agree with respondent that bailey's fraud rule does not apply in this case at least as it's been up for the court for three reasons or three points i'd like to make the st we agree with respondent the fundamental distinction that matters is between interpret ing the way a statute of limitations operates and equitable relief from that statute it's the distinction this court drew in a n z in describing american pipe you've got interpretive enforcing statutes and you've got equitable relief from the the operation of the statu and it's true that those are all statutory interpretation interpretation questions but they are very different questions because on the one hand the discovery rule that comes out of the statute has to be in the text in context of the statute whereas equitable relief whether it's viewed as one umbrella doctrine or s divided into several different species are all exercises of course traditional free standing powers courts of equity to relieve parties from the operation of a statute which we agree with respondent that difference matters not just with respect to how clear a statute must be to displace or make clear that that doctor doesn't apply but also the scope of the rule that results of the court observed in rotella so to put it in terms of judge posner's opinion and caught the st category of the statutes a cruel rule set forth in the statute that's our st bucket everything else fits into that nd bucket and it's simply a question of whether you so divide into two subsidiary categories or not but the nd point is where bailey fits in this taxonomy and we acknowledge that language in the courts opinions over the past number of years have sent some mixed signals to the extent you address it here we think the better view is that those cases are understood as applications of equitable principles whether equitable tolling or a close cousin for three reasons st the rule or rose at equity starting in courts  chancery and later carried over to courts of law nd that's really the only way to understand cases like exploration company where the statute by its term doesn't run from discovery doesn't leave room for a discovery rule that can't be read to impose a discovery rule but it certainly can be understood not to  place background equitable principles and rd the court has repeatedly and recently cited balian holmberg in other cases including in contexts where it mattered as mr director he was explaining on the equitable side of the line the most recent example as you noted is a n z and in that case it mattered whether american pipe was equitable or statutory in nature and the court relied on the fact that american pipe had cited all holmberg which a n z called a paradigm application of equitable tolling so we think the court's most recent and repeated word on this is that it falls on the equitable side of the line that even if you think there are cases where there you have an ambiguous statutory provision and you can look to equitable principles to help you figure that out that's fine but that the underlying principle is still equitable in nature and that would be like the court's opinion  had an express discovery rule and the question is what does discovery mean so the court surveyed equitable practice state statutes and all manner of things that were relevant to figuring out what congress meant in that provision do you think that that equitable principle is the same as the way the court has defined equitable totally meaning we have very we have very strict construction and you're equitable tolly certain elements to it do you think the apply more broadly to all the equitable principles who or is it a separate principle so our view and i'm not sure anything turns on it here is that it's a subset of that broader equitable principle you might think of it in terms of the kind of  is either concealed affirmatively or self concealing satisfies by itself the extraordinary circumstance requirement of tolling and then the nd element diligence is just the same across both both context so it seems like a subset of the broader principle of equitable tolling which explains why the court's decisions in cases where it mattered not just in a n z but in lamps and in describe cases like homburg and bailey as falling into this bucket so we we understand it to fall in the equitable tolling or the equitable relief side of the line but at the end of the day to decide this case i don't think you need to resolve that particular question if it's any kind of equitable relief i think petitioner has disclaimed reliance on that and certainly didn't present that below or in the petition but even if you think it's a statutory rule that could be read in to every statute we don't think this falls within the category of fraud like to amend this is it page one hundred and four any of the court of appeals appendix volume two editions counsel in fact we said no as i think that ship has sailed ultimately we don't have a strong interest in whether you apply that rule here or leave it to the rd circuit but i think respect for the court of appeals in the integrity of this or shariah process of is fraud has been used to prevent the plaintiff from noticing it so if you understand bailey as an application of more general equitable principles that grant relief not just from fraud but from concealment and other kinds of extraordinary circumstances like the earthquake then we don't think it does matter bailey i think is best understood as applying those general principles in the particular context that was recurring at the time of flawed claims so if you understand it that way there's no rigid boundary bailey is simply explaining how those general principles apply in a particular setting if instead you understand bailey however as a rule of statutory interpretation that departs from the way we ordinarily review read statutes and we suggest you should apply that exception that departure on its own terms rather than expanding it as i think addition had suggested in briefing but again if you understand it is an application of equitable principles you don't need to draw a line between the problem in of the underlying claim which would be really focused on the object or foundation of the suit or other examples like homework which wasn't a fraud action but involved concealment  pieces of a piece as involving general principles of equitable relief and everything hangs together for his new questions thank you council of five minutes mr grant thank you mr chief justice perhaps  try and quickly make five points that i hope address some of the questions raised by the court this morning st there's no question that this court of though when bailey and homer were decided didn't use the label discovery rule in more recent cases like belly has clearly identified a discovery rule which i think under the best reading is separate from equitable told the nd point is that there's an argument advanced in the briefs and today by both counsel for the respondent the united states that the issue is whether a statute is all or nothing either a common law discover rule applies to every claim under the statute or to not at all that is that view is unsupported and contradicted by baillie exploration and homework itself subset of cases under the statute where the doctrine otherwise applied it wasn't all or nothing as my friends suggest the rd point concerns confusion about the relationship of the documents mr bond said that the court has in the past sent mixed signals i think that's a fair characterization and i think that unfortunately those mixed signals cause confusion both on the part of the parties and in the courts below  observed that the nd circuit in the case being reviewed had had was adding to an equitable tolling claim the requirement that there be some action in addition to the cause of action that caused the concealment that is the same idea that is present in footnote five in the rd circuit's decision below where the rd circuit said and this wasn't this was for the court it wasn't just on behalf of those four members who would have wished to review equitable tolly the court as a whole said our president has not previously recognized that a defendant's so concealing conduct may be the basis for equitable tolling so the rd circuit which by the way had gone on banks who were spawn today was recognizing that previously its own cases had said that there had requirement for some additional action which petitioners counsel did not believe was present here the next point is concerns this question of whether the discovery rule is a matter of  an exception an equitable exception to a statute which is imposed by courts themselves or whether it's statutory interpretation that touched on in either cases justice kagan i believe was was alluding to is congressional intent and we believe that congress here when you look at the statute as a whole not ignoring the language you need for thirteen d but the statute as a whole including its purposes including its exportation that it wanted to eliminate the practices it issues clearly would not have meant to foreclose a lawsuit by were presented facts like petitioners facts here the final point i'd like to raise concerns other points related to that i believe i heard counsel for the respondent say that under his view the discovery rule is a subset of acquittal tolling i could understand why one would come to that view given the confusion of the doctrine i've set out a different view which we think is the better understanding but if their view is correct then i don't know how they can argue it was waived if the discovered the whole burgh bailey rule is a subset of equitable tolling we pressed the bally home rule below those cases were cited in the supplemental briefing after the court decided to go on bond so i think the assertion that the arguments that were presented here were waived or incorrect the final point concerns respondents challenge to the sufficiency of the complaint the just the district court in the st circuit here understood exactly what was that issue i must candidly acknowledge that the complaint here was not a paragon of clarity  believe clearly falls within the ambit of the common law discovery rule unless the court has further questions like thank you thank you counsel the case is submitted