FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CAMARIE MANGUM, 

Plaintiff-Appellant,

No. 08-35191 v.

D.C. No. ACTION COLLECTION SERVICE, INC.,  4:05-CV-00507- DBA Action Collection;

BONNEVILLE BILLING & BLW

COLLECTIONS, INC.; CITY OF OPINION

POCATELLO; DON FURU,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, District Judge, Presiding

Argued and Submitted

June 2, 2009—Portland, Oregon

Filed August 4, 2009

Before: Diarmuid F. O’Scannlain, Ferdinand F. Fernandez,

and Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fernandez;

Concurrence by Judge O’Scannlain

10115
COUNSEL

DeAnne Casperson, Holden, Kidwell, Hahn & Crapo,

P.L.L.C., Idaho Falls, Idaho, for the plaintiff-appellant.

10118 MANGUM v. ACTION COLLECTION SERVICE
Blake G. Hall, Anderson Nelson Hall Smith P.A., Idaho Falls,

Idaho; Todd R. Erikson, Todd R. Erikson, P.A., Idaho Falls,

Idaho, for the defendants-appellees.

OPINION

FERNANDEZ, Circuit Judge:

Camarie Mangum appeals the district court’s determination

that her action against Bonneville Billing & Collections, Inc.

(“Bonneville”), under the Fair Debt Collection Practices Act

(“FDCPA”)1, was barred by the statute of limitations2 and that

the discovery rule doctrine could not apply as a matter of law.

That led to a grant of summary judgment3 against her.4

Mangum also appeals the district court’s determinations

that she had not shown a right to relief under 42 U.S.C.

§ 1983 against the City of Pocatello, Idaho, or Captain Don

Furu based upon alleged violations of the FDCPA, the Fair

Credit Reporting Act (“FCRA”)5 and a claimed constitutional

right to privacy. That led to the grant of a summary judgment

on the claims based upon the statutes, and a judgment as a

matter of law6 on the claim based upon the right of privacy.

We affirm as to the City and Furu, but reverse as to Bonneville.

1

15 U.S.C. §§ 1692-1692p. 

2

15 U.S.C. § 1692k(d). 

3Fed. R. Civ. P. 56. 

4We note that Mangum also named other parties, for example, Action

Collection Services, Inc., but those parties are not before us on appeal. 

5

15 U.S.C. §§ 1681-1681x. 

6Fed. R. Civ. P. 50(a). 

MANGUM v. ACTION COLLECTION SERVICE 10119
BACKGROUND

Mangum was a dispatcher for the City, who began work in

November 1998, and was terminated on August 1, 2006. On

December 2, 2004, Chief of Police Edward Guthrie was at a

store in Pocatello, Idaho, where he observed a list containing

names of individuals from whom checks would no longer be

accepted. Mangum’s name was on the list. Subsequently,

Chief Guthrie directed Captain Furu to conduct an internal

investigation to determine why Mangum’s name was included

on the list, and to assess whether Mangum was engaged in

conduct that violated department policies relating to moral

conduct and professional image.

As part of his investigation, Furu examined small-claimscourt-actions files that contained copies of prior bad checks

written by Mangum. On December 7, 2004, Furu also contacted collection agencies Bonneville and Bannock Collections, Inc. to inquire about possible claims they may have had

against Mangum for writing bad checks. On December 8th,

2004, Bonneville provided Furu with copies of insufficientfund checks written by Mangum. Furu’s investigation indicated that Mangum had written at least twenty-six checks

with insufficient funds, including one to the City itself.

On December 9, 2004, Furu notified Mangum by letter that

he had initiated his investigation, and on December 15, 2004,

Mangum attended an investigative interview with Furu in

which she first became aware of the fact that the debt collection agencies had provided copies of her check information to

Furu. Mangum states that she never gave those agencies permission to release her debt information to third parties. By

December 19, 2004, Mangum had hired an attorney regarding

the incident.

On December 14, 2005, Mangum finally filed a complaint

in the United States District Court for the District of Idaho

and asserted causes of action under the FDCPA, the FCRA,

10120 MANGUM v. ACTION COLLECTION SERVICE
and 42 U.S.C. § 1983. On August 15, 2006, Mangum filed an

amended complaint adding § 1983 claims against Captain

Furu. All parties then filed motions for summary judgment.

The district court dismissed Mangum’s FDCPA claim against

Bonneville on statute of limitations grounds, and dismissed

her FCRA claims against Bonneville on the ground that it was

not an entity against whom the FCRA could be asserted. The

district court denied the City’s motion for summary judgment

as to Mangum’s § 1983 claim based on constitutional

grounds. However, it dismissed Captain Furu on the ground

that he was entitled to qualified immunity.

Mangum next filed a motion for reconsideration and

requested that the district court address her § 1983 claims

based on the purported FCRA and FDCPA violations. The

district court denied her motion for reconsideration and concluded that neither the FCRA nor the FDCPA provided a right

that she could pursue under § 1983. The parties then proceeded to trial on the right of privacy claim, and at the close

of Mangum’s evidence, the City filed a motion for judgment

as a matter of law. The district court granted that motion and

entered judgment in favor of the City on the same day. This

appeal followed.7

JURISDICTION AND STANDARDS OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C.

§§ 1331, 1343. We have jurisdiction pursuant to 28 U.S.C.

§ 1291.

We review the district court’s order granting summary

judgment de novo. Aguilera v. Baca, 510 F.3d 1161, 1167

(9th Cir. 2007). “An order granting summary judgment will

only be affirmed if the evidence, read in the light most favor7

It is unclear whether Mangum intends to appeal the judgment in favor

of Captain Furu. In all events, what we say as to her claims against the

City applies to him as well. 

MANGUM v. ACTION COLLECTION SERVICE 10121
able to the non-moving party, demonstrates the absence of a

genuine issue as to any material fact, and the moving party is

entitled to judgment as a matter of law.” Id.

We also review the district court’s order granting a motion

for judgment as a matter of law under Fed. R. Civ. P. 50 de

novo. Torres v. City of Los Angeles, 548 F.3d 1197, 1205 (9th

Cir. 2008). “ ‘Judgment as a matter of law is appropriate

when the evidence presented at trial permits only one reasonable conclusion.’ ” Id. (quoting Santos v. Gates, 287 F.3d 846,

851 (9th Cir. 2002)). That is, “ ‘[a] motion for judgment as a

matter of law is properly granted only if no reasonable juror

could find in the non-moving party’s favor.’ ” Id.

DISCUSSION

As we see it, the principal issue with which we must wrestle is whether our usual discovery rule jurisprudence can

apply to the statute of limitations for an FDCPA action. We

will, therefore, take up that question first and will thereafter

consider Mangum’s claims against the City under § 1983.

A. FDCPA and the Discovery Rule

[1] The statute of limitations for FDCPA actions is found

at 15 U.S.C. § 1692k(d), which, with its heading, reads as follows: “Jurisdiction: An action to enforce any liability created

by this subchapter may be brought in any appropriate United

States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within

one year from the date on which the violation occurs.” That

phraseology, says Bonneville, with little discussion, means

that the time for bringing an action is an element of subject

matter jurisdiction. Were that so, equitable tolling could not

apply.8See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89,

8The discovery rule is not the same as equitable tolling. See Garcia v.

Brockway, 526 F.3d 456, 465 (9th Cir. 2008) (en banc). However, because

10122 MANGUM v. ACTION COLLECTION SERVICE
93-95, 111 S. Ct. 453, 456-57, 112 L. Ed. 2d 435 (1990);

Marley v. United States, 548 F.3d 1286, 1290 (9th Cir. 2008).

However, there is an operating presumption that “equitable

tolling [is] applicable to suits against private defendants,” a

presumption that also applies to “suits against the United

States.” Irwin, 498 U.S. at 95-96, 111 S. Ct. at 457. Of necessity, that must mean that statute of limitations provisions will

not be seen to be jurisdictional in character, absent some significant indication to the contrary in the statutory language or

in the legislative history. Bonneville points to no such language or history; nor have we found any.9

[2] Of course, there is the heading “Jurisdiction” in 15

U.S.C. § 1692k(d), but the statute itself does not have that heading,10 and the mere fact that the Office of the Law Revision

Counsel11 chose to create the heading when it codified the

provision does not affect our decision. There can be little

doubt that titles, in general, are of some help,12 but the mere

it does not matter here, we will assume, without deciding, that the discovery rule could not apply either, if the time limitation was jurisdictional.

See Archer v. Nissan Motor Acceptance Corp., 550 F.3d 506, 508 (5th Cir.

2008) (stating where time limitation was a jurisdictional bar, the “discovery rule does not apply”); Felter v. Norton, 412 F. Supp. 2d 118, 122

(D.D.C. 2006) (stating that if statute of limitations is jurisdictional, it cannot be overcome by discovery rule), remanded on other grounds, Felter

v. Kempthorne, 473 F.3d 1255 (D.C. Cir. 2007). 

9The most history we have found is S. Rep. No. 95-382, at 8 (1997),

reprinted in 1977 U.S.C.C.A.N. 1695, 1702, which hurts rather than helps

Bonneville’s position by separating the concept of jurisdiction from that

of time in the following language: “Jurisdiction for actions is conferred on

U.S. district and state courts; there is a 1 year statute of limitations.” There

is also a House of Representatives report, but it merely sets out the statutory language and, thus, affords no insights. See H.R. Rep. No. 95-131, at

15, 23 (1997). 

10Fair Debt Collection Practices Act, Pub. L. No. 95-109, § 813, 91 Stat.

874, 881 (1977). 

11The Office is supervised by the Committee on the Judiciary of the

House of Representatives. 1 U.S.C. § 202. 

12See Almendarez-Torres v. United States, 523 U.S. 224, 234, 118 S. Ct.

1219, 1226, 140 L. Ed. 2d 350 (1998). 

MANGUM v. ACTION COLLECTION SERVICE 10123
addition of a title by the Law Revision Counsel cannot change

the meaning or intent of a statutory provision.13 Also, we

attach no particular significance to the fact that this statute of

limitations appears in the same sentence in which the jurisdiction provision appears. Nothing in the structure of that sentence tells us that the time limitation was also a jurisdictional

limitation. In fact, a more natural reading is that parties may

bring their action in any “court of competent jurisdiction” and

may do so “within one year.” 15 U.S.C. § 1692k(d). It is fair

to say that parties are faced with a “when” issue and a “what

court” issue for every action, but the former does not usually

control or affect the latter. In short, we agree with both the

fine discussion and the conclusion in Clark, 176 F. Supp. 2d

at 1068, that is, “the presumption that statutory time limits are

not jurisdictional has not been rebutted by anything in the language or legislative history of the FDCPA.”

14 That said, we

must still consider whether commencement of the one year

period was delayed by the discovery rule.15

[3] We have made it clear that, in general, the discovery

rule applies to statutes of limitations in federal litigation, that

is, “[f]ederal law determines when the limitations period

begins to run, and the general federal rule is that ‘a limitations

period begins to run when the plaintiff knows or has reason

13See United States v. Welden, 377 U.S. 95, 98 n.4, 84 S. Ct. 1082, 1085

n.4, 12 L. Ed. 2d 152 (1964); see also Clark v. Bonded Adjustment Co.,

176 F.Supp.2d 1062, 1067-68 (E.D.Wash. 2001). 

14We are aware of the Eighth Circuit Court of Appeals’ statement in

reviewing this section that it was “not at liberty to disregard the jurisdictional limitations Congress has placed upon the federal courts.” Mattson

v. U.S. West Commc’ns, Inc., 967 F.2d 259, 262 (8th Cir.1992). But that

statement was made without any real analysis, and we are unsure but what

“jurisdiction” was used in a somewhat colloquial sense. In any event, we

do not agree that the language is jurisdictional. 

15As we have noted, the discovery rule differs from equitable tolling.

See Garcia, 526 F.3d at 465. While in most instances the differences may

be quite arcane, we need not consider them here because we will hold that

the discovery rule does apply. We need go no further. 

10124 MANGUM v. ACTION COLLECTION SERVICE
to know of the injury which is the basis of the action.’ ”

Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d

1260, 1266 (9th Cir. 1998) (quoting Trotter v. Int’l Longshoremen’s & Warehousemen’s Union, 704 F.2d 1141, 1143

(9th Cir. 1983)). Indeed, even when a statute — FCRA —

expressly stated that an action must be brought “within two

years from the date on which the liability arises”

16 subject to

an exception for willful misrepresentation,17 we held that the

discovery rule applied where there was no willful misrepresentation. See Andrews v. TRW, Inc., 225 F.3d 1063, 1066-67

(9th Cir. 2000), rev’d, 534 U.S. 19, 122 S. Ct. 441, 151 L. Ed.

2d 339 (2001). 

The Supreme Court felt that we had gone too far; as it said:

We doubt that Congress, when it inserted a carefully

worded exception to the main rule, intended simultaneously to create a general discovery rule that would

render that exception superfluous. In sum, the evidence of the early incarnations of § 1681p, like the

“liability arises” language on which Congress ultimately settled, fails to convince us that Congress

intended sub silentio to adopt a general discovery

rule in addition to the limited one it expressly provided.

TRW Inc. v. Andrews, 534 U.S. 19, 33, 122 S. Ct. 441, 450,

151 L. Ed. 2d 339 (2001). That, of course, does not speak to

the discovery rule, in general, but Bonneville argues that it

affects the FDCPA because of a couple of comments by the

Court along the way. 

[4] The Court did say that “[t]he FCRA does not govern an

area of the law that cries out for application of a discovery

rule.” Id. at 28, 122 S. Ct. at 447. And, says Bonneville, the

1615 U.S.C. § 1681p (1994). 

17Id.

MANGUM v. ACTION COLLECTION SERVICE 10125
FDCPA deals with essentially the same general area of the

law. Perhaps so, but nothing in the Court’s comment — dicta

or not — indicates that crying out was a threshold requirement for a discovery rule, and it certainly made no difference

in the case itself, which dealt with the express limitations

enacted by Congress for the FCRA.

True it is that, as Bonneville notes, the Supreme Court

expressed some skepticism about general application of the

discovery rule. It noted that we had presumed that absent

express legislation to the contrary “all federal statutes of limitations, regardless of context, incorporate a general discovery

rule.” Id. at 27, 122 S. Ct. at 446. If there were any presumption at all, it said, we had “conspicuously overstated its scope

and force.” Id. The Court then noted that it had previously

recognized that federal courts generally apply a discovery rule

when a statute does not speak to the issue, but, it continued,

“we have not adopted that position as our own.” Id., 122 S.

Ct. at 447. However, the Court did not say whether it would

or would not do so in a proper case because one thing was

clear: it had never gone as far as we had gone, and we were

wrong to have done so. Id.

[5] The above is surely food for thought and is worth musing on, but it does not overrule or seriously undermine our

general approach to the point that we can now ignore preexisting Ninth Circuit law. We simply cannot declare that the

rule is inapplicable in a case like this one. Cf. Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc) (holding

that a panel can reexamine our prior precedent when that has

been undermined by later Supreme Court authority.)18

[6] All of the above being true, we are required to hold that

18One court of appeals has declined to find that the rule has been undermined at all. See Skwira v. United States, 344 F.3d 64, 74-75 (1st Cir.

2003). Another has expressed uncertainty, but has not resolved the issue.

See Johnson v. Riddle, 305 F.3d 1107, 1114 n.3 (10th Cir. 2002). 

10126 MANGUM v. ACTION COLLECTION SERVICE
Mangum did file in a timely fashion. By any account, the first

time she discovered (or could have discovered) that her

checks had been disclosed to the City was December 15,

2004, when she spoke with Captain Furu, and she filed her

action on December 14, 2005 — close, but good enough.19

Therefore, the district court erred, and we must reverse the

summary judgment as to Bonneville.

B. Section 1983 Claims

In order to state a 42 U.S.C. § 1983 claim against the City,

Mangum was required to show that “(1) the action complained of occurred ‘under color of law,’ and (2) the action

resulted in a deprivation of a constitutional right or a federal

statutory right.” Azer v. Connell, 306 F.3d 930, 935 (9th Cir.

2002). In that regard, it is important to emphasize that § 1983

does not itself create substantive rights; rather, it merely provides a “mechanism for enforcing individual rights” that are

conferred or secured by other statutory or constitutional provisions. See Gonzaga Univ. v. Doe, 536 U.S. 273, 285, 122 S.

Ct. 2268, 2276, 153 L. Ed. 2d 309 (2002). 

(1) The Statutorily Based Claims

Mangum asserts a § 1983 claim against the City based upon

a claimed violation by the City of the FCRA and the FDCPA.

Neither theory is viable.

[7] As the City points out, the FCRA does not even apply

to the debt collection agencies, much less to the City. That is

to say, it confers no rights against those agencies or the City;

its strictures relate only to consumer reporting agencies. But

“consumer reporting agency” is an appellation for those that

19We note that Mangum’s long wait after she discovered the disclosure

does not affect our decision. Cf. Socop-Gonzalez v. INS, 272 F.3d 1176,

1195 (9th Cir. 2001) (en banc) (holding that “the days during a tolled

period simply are not counted against the limitations period”). 

MANGUM v. ACTION COLLECTION SERVICE 10127
assemble or evaluate consumer credit information, etc., “for

the purpose of furnishing consumer reports to third parties.”

15 U.S.C. § 1681a(f). At most, debt collection agencies (and,

sometimes, governmental entities) could be “furnishers” of

information to a consumer reporting agency in certain

instances,20 but there is no claim that information was so furnished in this case. In short, this case has nothing whatsoever

to do with fair credit reporting,21 and the FCRA cannot form

the basis of Mangum’s § 1983 action. 

[8] Similarly, while it is conceivable that a debt collector

could be held responsible for releasing copies of Mangum’s

bad checks to the City,22 a matter on which we express no

opinion, nothing in the FDCPA purports to confer a right of

action against a third party that received the information.

Here, not only was the City not a “debt collector,” but also it

was not even attempting to collect a debt. Again, there simply

is no statutory basis upon which to found a claim against the

City based upon the FDCPA.

(2) Constitutional Right of Privacy

Mangum finally argues that she has a viable claim against

the City because it violated her constitutional right of privacy

when it obtained copies of the insufficient fund checks that

she had placed in the stream of commerce. While there is a

constitutional right to what is known as informational privacy,23

which may even encompass confidential financial information,24 that avails her nothing in this case. What Mangum

claims is that once the insufficient-fund check was negotiated

20See 15 U.S.C. § 1681s-2. 

21See Gorman v. Wolpoff & Abramson, LLP, 552 F.3d 1008, 1013-14

(9th Cir. 2009). 

22See 15 U.S.C. § 1692a(6). 

23See Nelson v. NASA, 530 F.3d 865, 877-78 (9th Cir. 2008). 

24See Nelson, 530 F.3d at 877; Denius v. Dunlap, 209 F.3d 944, 957-58

(7th Cir. 2000). 

10128 MANGUM v. ACTION COLLECTION SERVICE
by her victim, ultimately rejected by her bank, and then

returned to the victim, who put it out for collection but never

returned it to her possession, a right of privacy to the information on that instrument somehow sprang into being. That

right, she says, would include any insufficient fund information entered upon the check by other parties. We disagree.

[9] The Supreme Court put its finger on the core of the

problem with Mangum’s assertion decades ago, when it was

faced with a claim by a defendant that the Fourth Amendment

to the United States Constitution precluded the government

from subpoenaing checks, deposit slips, and other records, in

the hands of the defendant’s banks. United States v. Miller,

425 U.S. 435, 436-38, 96 S. Ct. 1619, 1621, 48 L. Ed. 2d 71

(1976). The Court stated:

[W]e perceive no legitimate “expectation of privacy”

in their contents. The checks are not confidential

communications but negotiable instruments to be

used in commercial transactions. All of the documents obtained, including financial statements and

deposit slips, contain only information voluntarily

conveyed to the banks and exposed to their employees in the ordinary course of business.

Id. at 442, 96 S. Ct. at 1624; see also United States v. Payner,

447 U.S. 727, 732, 100 S. Ct. 2439, 2444, 65 L. Ed. 2d 468

(1980).

[10] Mangum seeks to confine that holding to its narrow

facts, that is, checks in the possession of the banks, but points

to nothing that would cabin the principle in that way. Why

would she acquire more of a privacy right when the bank

returned the check to her victim — the person to whom she

gave it — or when that victim made further use of that document of false promise? We think there is no viable basis for

an assertion that she did. See, e.g., SEC v. Jerry T. O’Brien,

Inc., 467 U.S. 735, 743, 104 S. Ct. 2720, 2725-26, 81 L. Ed.

MANGUM v. ACTION COLLECTION SERVICE 10129
2d 615 (1984) (“It is established that, when a person communicates information to a third party even on the understanding

that the communication is confidential, he cannot object if the

third party conveys that information or records thereof to law

enforcement authorities.”); United States v. Cormier, 220

F.3d 1103, 1108 (9th Cir. 2000) (finding no reasonable expectation of privacy in information a person gave a hotel when

he registered as a guest); Wang v. United States, 947 F.2d

1400, 1403 (9th Cir. 1991) (finding no reasonable expectation

of privacy in records a person gave to his financial consultant); United States v. Choate, 576 F.2d 165, 175 (9th Cir.

1978) (finding no reasonable expectation of privacy in information on the outside of an envelope deposited in the mail).

[11] To the extent Mangum suggests that the very enactment of the FDCPA gave her a right of privacy in the checks

and the information thereon as soon as the victims turned

them over to collection agencies, we disagree. Congress did

indicate that its purpose was to “eliminate abusive debt collection practices,”

25 and noted that those practices can contribute to a number of ills, including “invasions of individual

privacy.”26 But that is far from saying that the information on

the check itself is private or that once a check is put out for

collection, any other person who sees or obtains it, or a copy

of it, has violated the bad check writer’s right of privacy. In

fact, the only remedy for violations of the FDCPA is against

the debt collector itself,27 when that collector wrongfully communicates the information “in connection with the collection”

of a debt.28 That is a relatively narrow prohibition and remedy.29

2515 U.S.C. § 1692(e). 

2615 U.S.C. § 1692(a). 

2715 U.S.C. § 1692k. 

2815 U.S.C. § 1692c. 

29Here, for example, one might ask whether the disclosure was even in

connection with collection of a debt. However, that issue is not before us

and we need not decide it at this time. 

10130 MANGUM v. ACTION COLLECTION SERVICE
[12] Nor does it avail Mangum to point to the general, and

somewhat amorphous, right to informational privacy. No

doubt that right exists. See Nelson, 530 F.3d at 879-80 & n.5.

However, the existence of that right is a far cry from holding

that a person who places a negotiable instrument into the

stream of commerce, an instrument that could (and indeed

would) be seen by numerous individuals, who could, themselves, have shown it to others, including the City, still

retained a legitimate expectation that if the check came into

the hands of a collection agency, no other individual, including the City, could ask for a copy. The thought that a bad

check writer retains some inchoate constitutionally protected

right of privacy in what her bad check discloses while and

after it moves through the stream of commerce is daedalian,

but it will not bear examination. The bad check writer

eschews privacy when the check is launched, and surely does

not reacquire it along the way. It is one thing to say that a person has a privacy right and can refuse to give out personal

information when asked. It is quite another thing to say that

having sent a negotiable instrument into the stream of commerce, the person has a privacy right to preclude others from

obtaining information that is found upon the instrument itself

— here, of course, Mangum’s bad check, which she could

have reasonably foreseen would wind up in the hands of a

collection agency. Simply put, at no point did the information

in question become sufficiently personal to merit constitutional protection. See Ferm v. U.S. Tr. (In re Crawford), 194

F.3d 954, 958 (9th Cir. 1999).

It being pellucid that Mangum had no reasonable expectation of privacy in the checks she issued and placed in the

stream of commerce, we need not go on to ask whether the

City would have an interest in obtaining the information on

those checks, which would outweigh some privacy interest of

hers. Thus, we will not issue an advisory opinion that purports

to balance the City’s need for information about a police

department employee’s improper activities against some

MANGUM v. ACTION COLLECTION SERVICE 10131
hypothetical interest of Mangum in keeping the information

on her bad checks from the City.

CONCLUSION

Mangum, who issued dozens of bad checks, asserts that her

constitutional rights were violated when the city police

department, where she worked, obtained copies of the checks

from those who were seeking to collect upon them. We hold

that no constitutional right of hers was violated. Similarly, the

City did not violate any right she had under FCRA or

FDCPA. Thus, we affirm the judgment for the City and for

Captain Furu, who conducted the City’s investigation.

However, the district court erred when it determined that

any claim against Bonneville was barred by the FDCPA’s

one-year statute of limitations, 15 U.S.C. § 1692k(d) on the

basis that it was filed more than a year after the alleged “violation” and the discovery rule cannot apply. Because we disagree with the latter proposition, we must reverse.

AFFIRMED in part, REVERSED in part, and

REMANDED. The parties shall bear their own costs on

appeal.

O’SCANNLAIN, Circuit Judge, specially concurring:

I agree with the court that neither Pocatello nor Bonneville

is a “consumer reporting agency” within the meaning of the

Fair Credit Reporting Act (“FCRA”). Nor do I object to the

majority’s holding that Pocatello is not a “debt collector” for

purposes of the Fair Debt Collection Practices Act

(“FDCPA”). I also fully agree that Mangum had no constitutional right to privacy in the bad checks she voluntarily deposited into the stream of commerce. Accordingly, I join Part B

of the court’s opinion without reservation.

10132 MANGUM v. ACTION COLLECTION SERVICE
I cannot concur, however, in Part A, which holds that the

discovery rule extends the FDCPA’s statute of limitations to

permit Mangum’s otherwise untimely suit. I respectfully suggest that Part A cannot be squared with the plain language of

the statute, which starts the clock on the “date on which the

violation occurs,” not the date on which the plaintiff discovers

the violation. By applying the discovery rule in the face of

unequivocal statutory language to the contrary, Part A conflicts with our en banc decision in Garcia v. Brockway, 526

F.3d 456 (9th Cir. 2008) (en banc).

Nevertheless, our court’s equitable tolling jurisprudence

requires me to concur in the result. Although I believe the discovery rule does not apply, equitable tolling permits

Mangum’s suit under Socop-Gonzales v. INS, 272 F.3d 1176

(9th Cir. 2001) (en banc). Socop-Gonzales, however, was a

significant, unwarranted departure from ancient principles of

equity. Because I believe Socop-Gonzales was wrongly

decided, I concur specially in the court’s judgment.

I

Camarie Mangum worked as a dispatcher for the Pocatello

Police Department between 1998 and 2005. On December 2,

2004, Police Chief Edward Guthrie went shopping at the local

SuperSave store. While there, he discovered that Mangum

was listed as a person from whom the store would no longer

accept checks. Guthrie ordered an internal investigation to

determine whether Mangum’s conduct violated department

policies relating to moral conduct and professional image.

On December 8, 2004, as part of the investigation, Bonneville provided the department with copies of bad checks written by Mangum. A week later, on December 15, 2004,

Mangum met with the investigating officer and became aware

for the first time that Bonneville had disclosed the checks.

Though she knew within one week that the checks had been

disclosed, Mangum waited fifty-one additional weeks—until

MANGUM v. ACTION COLLECTION SERVICE 10133
December 14, 2005—before she finally sued Bonneville and

Pocatello. Thus, Mangum filed suit more than one year after

the violation, but less than one year after discovering the violation.

II

The FDCPA’s statute of limitations provides: “An action to

enforce any liability created by this subchapter may be

brought in any appropriate United States district court without

regard to the amount in controversy, or in any other court of

competent jurisdiction, within one year from the date on

which the violation occurs.” 15 U.S.C. § 1692k (emphasis

added). 

This language is not ambiguous. A “violation” is “an

infringement or transgression”; it is not the discovery of an

infringement or a transgression. Webster’s Third New Int’l

Dictionary 2554; see also Black’s Law Dictionary 1600-01

(Garner 8th ed.) (“An infraction or breach of the law” or “the

contravention of a right or duty.”). The “date on which the

violation occurs” must refer to the date on which the “infringement” or “transgression” complained of by the plaintiff

took place. In this case, Bonneville provided the police

department with the checks on December 8, 2004. Mangum’s

suit was untimely because it was brought more than one year

after such disclosures. That should be the end of the matter.

The majority, however, reaches the opposite conclusion.

Without discussing the statute’s text, the majority applies “the

general federal rule . . . that a limitations period begins to run

when the plaintiff knows or has reason to know of the injury

which is the basis of the action.” Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1266 (9th Cir. 1998).

Because Mangum sued less than one year after discovering

the disclosures, the majority allows her claim to proceed. The

majority appears to be under the impression that our precedent requires us to apply the discovery rule to every non10134 MANGUM v. ACTION COLLECTION SERVICE
jurisdictional statute of limitations, regardless of the plain language of the statute.

That is not our law. Rather, we may apply the discovery

rule only when the text of the applicable statute of limitations

permits us to do so. In Garcia, for example, a tenant asserted

that Brockway, the owner of a housing complex, violated the

Fair Housing Act by constructing apartments that were not

wheelchair compatible. Garcia, 526 F.3d at 459. The tenant

brought his claim more than two years after the apartments

were built, but fewer than two years after he rented an apartment. Under the FHA’s statute of limitations, “[a]n aggrieved

person may commence a civil action in an appropriate United

States district court or State court not later than 2 years after

the occurrence or the termination of an alleged discriminatory housing practice.” 42 U.S.C. § 3613(a)(1)(A) (emphasis

added). Like the statute at issue here, the FHA’s statute of

limitations starts the clock on the date the violation occurs,

not the date the plaintiff discovers the violation.

Despite the plain text of the statute, the tenant sought to

invoke the discovery rule. We rejected his argument, reasoning: “Holding that each individual plaintiff has a claim until

two years after he discovers the failure to design and construct

would contradict the text of the FHA, as the statute of limitations for private civil actions begins to run when the discriminatory act occurs—not when it’s encountered or discovered.”

Garcia, 526 F.3d 465. The “occurrence” of the “discriminatory housing practice,” we held, is the “failure to design and

construct,” not the plaintiff ’s discovery of the violation. Id.

at 464.

Garcia resolves this case. Just as the tenant’s argument

conflicted with the plain meaning of the FHA’s statute of limitations, Mangum’s contention contradicts the plain text of the

FDCPA, as the statute of limitations begins to run on the

“date on which the violation occurs,” not the date on which

the violation is discovered. Because the majority’s contrary

MANGUM v. ACTION COLLECTION SERVICE 10135
conclusion creates a stark intracircuit conflict, I cannot join

Part A of the court’s opinion.

III

Nevertheless, our court’s equitable tolling jurisprudence

requires me to concur in the result. Although the discovery

rule does not apply, equitable tolling permits Mangum’s suit

under our decision in Socop-Gonzales, a decision, I respectfully suggest, was wrongly decided.

It is an age-old principle that “[e]quity always refuses to

interfere where there has been gross laches in the prosecution

of rights.” McQuiddy v. Ware, 20 Wall. 14, 19 (1874); see

also McKnight v. Taylor, 42 U.S. 161, 168 (1843) (“There

must be conscience, good faith, and reasonable diligence, to

call into action the powers of the court.”); Baldwin County

Welcome Ctr. v. Brown, 466 U.S. 147, 148 (1984) (“One who

fails to act diligently cannot invoke equitable principles to

excuse that lack of diligence.”). Thus, equitable tolling permits an otherwise untimely suit only if the plaintiff shows she

acted diligently in pursuing her legal rights.

Here, it is beyond dispute that Mangum grossly neglected

her legal rights. Within one week, she discovered that Bonneville had provided the police department with the bad checks.

At that point, she still had fifty-one weeks— ninety-eight percent of the original limitations period—in which to file. Yet,

inexplicably, Mangum let the limitations period expire, waiting an additional fifty-two weeks before filing suit. She offers

no explanation for the lengthy delay, and her claim accordingly should be time barred.

Despite Mangum’s manifest failure to act diligently, our

decision in Socop-Gonzales compels me to deem her claim

timely. Socop-Gonzales invented the rule that “when a statute

of limitations is tolled, the days during a tolled period simply

are not counted against the limitations period.” Socop10136 MANGUM v. ACTION COLLECTION SERVICE
Gonzales, 272 F.3d at 1195. In other words, the statute does

not begin running until the tolled period ends. Applied here,

so long as a plaintiff acts diligently before discovering the

violation, the limitations period automatically lengthens by a

period equal to the time between the violation and the discovery of the violation. Here, Mangum could not reasonably have

known of the violation until the police department told her

about it. Accordingly, the week between the violation and the

discovery mechanically tacks on to the end of the limitations

period. Thus, under Socop-Gonzales, Mangum timely filed

her claim, even though her lengthy fifty-two week delay

before filing abundantly demonstrates her lack of diligence.

In another context, the silliness of the Socop-Gonzales

approach would be obvious. Suppose a college student enrolls

in a course with an end of semester paper requirement. She

gets sick during the first week of the semester and cannot

work on the paper for that week. After she recovers, she

spends three and a half months dilly dallying, partying, or otherwise behaving in a non-diligent manner. As December

approaches, the paper deadline looms ominously. Seeking an

opening, the student reads Socop-Gonzales and demands a

one week extension based on her illness at the beginning of

the semester. Should the professor be obligated to grant the

extension?

Unsurprisingly, we are nearly alone in our permissive attitude towards equitable tolling. Before Socop-Gonzales, no

federal court, in any circuit, had ever concluded that it must

turn a blind eye to a litigant’s post-discovery lack of diligence. The general rule has always been quite the opposite.

See, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 419 (2005)

(“[N]ot only did petitioner sit on his rights for years before he

filed his [state post-conviction petition], but he also sat on

them for five more months after his [state post-conviction]

proceedings became final before deciding to seek relief in

federal court. Under long-established principles, petitioner’s

lack of diligence precludes equity’s operation.”).

MANGUM v. ACTION COLLECTION SERVICE 10137
Several courts of appeals have also rejected our court’s

equitable tolling jurisprudence, reasoning persuasively that

the plaintiff ’s post-discovery lack of diligence should matter.

See, e.g., Cada v. Baxter Healthcare Corp., 920 F.2d 446, 452

(7th Cir. 1990) (“We do not think equitable tolling should

bring about an automatic extension of the statute of limitations by the length of the tolling period or any other definite

term. It is, after all, an equitable doctrine. It gives the plaintiff

extra time if he needs it. If he doesn’t need it there is no basis

for depriving the defendant of the protection of the statute of

limitations.”); Graham-Humphreys v. Memphis Brooks

Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir. 2000) (“The

claimant had abundant time (74 days) following the EEOC’s

March 28, 1996 actual release to her of the . . . notice in

which to institute her court action prior to the June 10, 1996

expiration of limitations.”); Bhd. of Locomotive Eng’rs v. CSX

Transp., Inc., 522 F.3d 1190, 1197 (11th Cir. 2008) (“Even

when the arbitrator issued an interpretation on April 7, 2006,

BLET waited until August 1, 2006, to file its petition for

enforcement. These delays show BLET’s lack of diligence

and such lack of diligence is inimical to a request for tolling.”); Phillips v. Heine, 984 F.2d 489, 492 (D.C. Cir. 1993)

(“[A]lthough courts often speak vaguely of the doctrine’s suspending the operation of the statute until the tolling circumstance is corrected, tolling does not bring about an automatic

extension of the statute of limitations by the length of the tolling period. It gives the plaintiff extra time only if he needs it.”).1

The traditional rule makes eminent sense. Equitable tolling,

as the name indicates, is an equitable doctrine; it concerns

itself with fairness to litigants. It is not fair to extinguish a

plaintiff ’s claim when she could not have discovered the

information necessary to file within the limitations period. On

the other hand, there is nothing unfair about preventing a litigant from suing in a situation like the one here, where

1But see Cabello v. Fernandez-Larios, 402 F.3d 1148, 1156 (11th Cir.

2005) (adopting the Socop-Gonzales rule). 

10138 MANGUM v. ACTION COLLECTION SERVICE
Mangum had ninety-eight percent of the original limitations

period in which to file, and yet inexplicably chose not to do

so. 

Yet there is certainly unfairness of another kind here. It

bears emphasizing that equitable tolling differs from equitable

estoppel in that the former applies only when both parties are

innocent. See Cada, 920 F.2d at 452 (equitable tolling is “a

doctrine that adjusts the rights of two innocent parties,”

whereas equitable estoppel applies when the defendant inequitably prevented the plaintiff from filing). Thus, fairness to

the plaintiff is only one side of the equitable tolling coin. The

other is avoiding prejudice to a defendant who has done nothing to prevent the plaintiff from filing. When both parties are

innocent, I agree with the Seventh Circuit that “the negligence

of the party invoking the doctrine” should “tip the balance

against its application.” Id. at 453. In short, applying equitable

tolling in this case produces an undeserved windfall to the

plaintiff and unwarranted prejudice to the defendant. To

return to the parable of the lazy college student, should the

college professor grant the extension if doing so would

require him to forego a long-planned Christmas vacation with

his family?

Socop-Gonzales’s justifications for its rule do not withstand

scrutiny. Contrary to Socop-Gonzales’s view, the automatic

extension rule does not promote “certainty and uniformity.”

Socop-Gonzales, 272 F.3d at 1195. Rather, it merely shifts the

inquiry from whether the plaintiff had a reasonable amount of

time post-discovery to file her claim to whether the plaintiff

had actually discovered the violation. As the Seventh Circuit

puts it, “[t]he simplicity would be delusive. Inquiry would

shift from how much time the plaintiff needed after he discovered the essential information bearing on his claim in order to

prepare his complaint to how much information really was

essential.” Cada, 920 F.2d at 453. 

Here, for example, suppose Mangum had sued fifty-three

weeks after discovering the alleged violation. To excuse her

MANGUM v. ACTION COLLECTION SERVICE 10139
delay, she might have argued that she did not have enough

information by December 15, 2004, when she found out that

the checks had been disclosed. She might have argued, quite

reasonably, that she did not obtain the essential information

until she had a few days to read up on the law, or even until

she was terminated in August 2006. How much information

is enough? This sort of inquiry carries the potential to “extend

the statute of limitations in virtually all cases, making the

ostensibly fixed deadline illusory.” Id. “Certainty and uniformity” are victims of the Socop-Gonzales rule; they are not

beneficiaries.

Socop-Gonzales also highlights what it supposes to be Congress’ “intended policy objectives”: “to permit plaintiffs to

take a specified amount of time (even if they don’t need it) to

further investigate their claim and consider their options

before deciding whether to file suit.” Socop-Gonzales, 272

F.3d at 1196 (internal quotation marks and citation omitted).

As the above discussion should make clear, this assertion fundamentally misunderstands the twin purposes of limitations

periods. Statutes of limitations balance the interests of two

parties; they do not exist solely to give plaintiffs a “specified

amount of time” to “consider their options.” The defendant is

interested in repose. The plaintiff is interested in having a reasonable amount of time to file a claim. In contrast to situations in which equitable estoppel is at issue, here the

defendant had nothing to do with the delay. If the plaintiff has

had enough time to file, the defendant should not be denied

repose.

IV

Statutes of limitations “protect important social interests in

certainty, accuracy, and repose.” Cada, 920 F.2d at 452. Congress’s adoption of a limitations period reflects a judgment

that defendants should not have to worry about stale claims

after a certain amount of time has elapsed. Yet our precedent,

by turning a blind eye to the defendant’s interests, unjustifi10140 MANGUM v. ACTION COLLECTION SERVICE
ably treats statutes of limitations as merely “arbitrary obstacles to the vindication of just claims.” Id. This case is a clear

example of how Socop-Gonzales’s automatic extension rule,

in many circumstances, converts equitable tolling into tolling

at will.

Notwithstanding that Socop-Gonzales was wrongly

decided, I concur specially in the court’s judgment.

MANGUM v. ACTION COLLECTION SERVICE 10141