PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-1668

___________

KEVIN C. ROTKISKE,

 Appellant 

v.

PAUL KLEMM, Esq., DBA Nudelman, Klemm & 

Golub, P.C., DBA Nudelman, Nudelman & Ziering, P.C., 

Klemm & Associates; NUDELMAN, KLEMM & GOLUB, 

P.C., DBA Nudelman, Nudelman & Ziering, P.C., DBA 

Klemm & Associates; NUDELMAN, NUDELMAN & 

ZIERING, P.C., DBA Nudelman, Klemm & Golub, P.C., 

Klemm & Associates; KLEMM & ASSOCIATES, DBA 

Nudelman, Klemm & Golub, P.C., Nudelman, Nudelman & 

Ziering, P.C.; JOHN DOES 1-10 

__________

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania

(D.C. No. 2-15-cv-03638)

District Judge: Honorable Gene E. K. Pratter

___________
2

Argued January 18, 2017

En Banc Rehearing Ordered September 7, 2017

Reargued En Banc February 21, 2018

Before: SMITH, Chief Judge, McKEE, AMBRO, 

CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., 

VANASKIE, SHWARTZ, KRAUSE, RESTREPO, 

BIBAS, and FISHER*

, Circuit Judges

(Filed: May 15, 2018)

Matthew B. Weisberg [Argued]

Weisberg Law

7 South Morton Avenue

Morton, PA 19070

Adina H. Rosenbaum, Esq. [Argued]

Public Citizen Litigation Group

1600 20th Street, N.W.

Washington, DC 20009

Counsel for Plaintiff-Appellant

Carl E. Zapffe [Argued]

Fenton & McGarvey Law Firm

2401 Stanley Gault Parkway

Louisville, KY 40223

Counsel for Defendants-Appellees

 * Honorable D. Michael Fisher, United States Circuit 

Judge for the Third Circuit, assumed senior status on February 

1, 2017.
3

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

This appeal requires us to determine when the statute of 

limitations begins to run under the Fair Debt Collection 

Practices Act (FDCPA or Act), 91 Stat. 874, 15 U.S.C. § 1692 

et seq. The Act states that “[a]n action to enforce any liability 

created by this subchapter may be brought in any appropriate 

United States district court . . . within one year from the date 

on which the violation occurs.” 15 U.S.C. § 1692k(d). The 

United States Courts of Appeals for the Fourth and Ninth 

Circuits have held that the time begins to run not when the 

violation occurs, but when it is discovered. See Lembach v. 

Bierman, 528 F. App’x 297 (4th Cir. 2013) (per curiam); 

Mangum v. Action Collection Serv., Inc., 575 F.3d 935 (9th Cir. 

2009). We respectfully disagree. In our view, the Act says what 

it means and means what it says: the statute of limitations runs 

from “the date on which the violation occurs.” 15 U.S.C.

§ 1692k(d).

I

The relevant facts of this case are undisputed. Appellant 

Kevin Rotkiske accumulated credit card debt between 2003 

and 2005, which his bank referred to Klemm & Associates 

(Klemm) for collection. Klemm sued for payment in March 

2008 and attempted service at an address where Rotkiske no 

longer lived, but eventually withdrew its suit when it was 

unable to locate him. Klemm tried again in January 2009,
4

refiling its suit and attempting service at the same address.1

Unbeknownst to Rotkiske, somebody at that residence 

accepted service on his behalf, and Klemm obtained a default 

judgment for around $1,500. Rotkiske discovered the judgment 

when he applied for a mortgage in September 2014.

On June 29, 2015, Rotkiske sued Klemm and several

associated individuals and entities asserting, inter alia, that the 

above-described collection efforts violated the FDCPA.

Defendants moved to dismiss Rotkiske’s FDCPA claim as 

untimely and the United States District Court for the Eastern 

District of Pennsylvania agreed. The District Court rejected 

Rotkiske’s argument that the Act’s statute of limitations 

incorporates a discovery rule which “delays the beginning of a 

limitations period until the plaintiff knew of or should have 

known of his injury.” Rotkiske v. Klemm, No. 15-3638, 2016 

WL 1021140, at *3 (E.D. Pa. Mar. 15, 2016). It found the 

“actual statutory language” sufficiently clear that the clock 

began to run on Defendants’ “last opportunity to comply with 

the statute,” not upon Rotkiske’s discovery of the violation. Id. 

at *4. The Court also rejected Rotkiske’s request for equitable 

tolling as duplicative of his discovery rule argument. Id. at *5.

Rotkiske timely appealed the judgment of the District 

Court and a panel of this Court heard oral argument on January 

18, 2017. Prior to issuing an opinion and judgment, on 

 1 In a certification accompanying Defendants’ motion to 

dismiss, Klemm’s managing partner stated that by the time of 

the second suit he had moved to a new firm named Nudelman, 

Nudelman & Ziering. Because Rotkiske has sued (among 

others) both Klemm and Nudelman, and the complaint’s 

allegations do not distinguish between them, for the sake of 

simplicity we refer only to Klemm. 
5

September 7, 2017, the Court sua sponte ordered rehearing en 

banc, and argument was held on February 21, 2018. 

II2

“Statutory interpretation, as we always say, begins with 

the text.” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). The text 

at issue in this appeal reads:

An action to enforce any liability created by this 

subchapter may be brought in any appropriate 

United States district court . . . within one year 

from the date on which the violation occurs.

15 U.S.C. § 1692k(d) (emphasis added). In declining

Rotkiske’s request to read the statute to imply a discovery rule, 

the District Court found that this language spoke clearly. We 

agree, and will affirm its judgment dismissing Rotkiske’s 

untimely FDCPA claim.

 2 The District Court had jurisdiction under 28 U.S.C. 

§ 1331. We have jurisdiction under 28 U.S.C. § 1291. Our 

review of an order dismissing a complaint for failure to state a 

claim is plenary, Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 

2005), as is our review of questions of statutory interpretation, 

United States v. Zavrel, 384 F.3d 130, 132 (3d Cir. 2004). We 

will affirm an order dismissing a complaint only when the 

complaint fails to “contain sufficient factual matter, accepted 

as true, to ‘state a claim to relief that is plausible on its face.’” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
6

Statutes of limitation provide “security and stability to 

human affairs” and are “vital to the welfare of society.” Gabelli 

v. S.E.C., 568 U.S. 442, 448–49 (2013) (citations omitted). The

standard rule is that a statute of limitations “commences when 

the plaintiff has ‘a complete and present cause of action.’” Bay 

Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar 

Corp. of Cal., 522 U.S. 192, 201 (1997) (quoting Rawlings v. 

Ray, 312 U.S. 96, 98 (1941)). By fixing an end point for civil 

liability, Congress advances “the basic policies of all 

limitations provisions: repose, elimination of stale claims, and 

certainty about a plaintiff’s opportunity for recovery and a 

defendant’s potential liabilities.” Gabelli, 568 U.S. at 447–48

(quoting Rotella v. Wood, 528 U.S. 549, 555 (2000)). 

We recently summarized the two basic models that “a

legislature may choose” in fixing the start of a limitations 

period. G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 

613 (3d Cir. 2015). First, a statute can run from “the date the 

injury actually occurred, an approach known as the ‘occurrence 

rule.’” Id. Alternatively, Congress may delay the start of the 

limitations period until “the date the aggrieved party knew or 

should have known of the injury, that is, the ‘discovery rule.’” 

Id.

Sometimes Congress clearly picks one model or 

another. When a statute of limitations begins to run only when 

“the plaintiff acquired or should have acquired actual 

knowledge of the existence of such cause of action,” the 

discovery rule plainly applies. See, e.g., 29 U.S.C. 

§ 1451(f)(2); Bay Area Laundry, 522 U.S. at 204 (interpreting 

29 U.S.C. § 1451(f)(2) to impose a discovery rule); Merck & 

Co. v. Reynolds, 559 U.S. 633, 648 (2010) (interpreting similar 

language in 28 U.S.C. § 1658(b)(1)). Likewise, when Congress 

specifies that the “date on which the violation occurs” starts the
7

limitations period, the occurrence rule plainly applies.

Accordingly, we hold that § 1692k(d)’s one-year limitations 

period begins to run when a would-be defendant violates the 

FDCPA, not when a potential plaintiff discovers or should 

have discovered the violation.

Congress does not, of course, always express statutes of 

limitations so directly. Instead of expressly enacting an 

occurrence or a discovery rule, Congress often articulates

statutes of limitations in terms somewhere between those two 

poles. Some statutes of limitations begin when a “claim first

accrue[s].” See, e.g., Gabelli, 568 U.S. at 447–48 (interpreting

28 U.S.C. § 2462). Others start when the “cause of action 

arises” or when “liability arises.” See, e.g., McMahon v. United 

States, 342 U.S. 25, 27 (1951) (interpreting Suits in Admiralty 

Act); Bay Area Laundry, 522 U.S. at 201 (interpreting 29 

U.S.C. § 1451(f)(1)). And we have little doubt that an 

exhaustive search would yield still other variations—some 

subtle, some stark. This appeal does not implicate the lessdeterminate language of those statutes, however.

III

Despite the “occurrence” language of the FDCPA,

Rotkiske insists that the discovery rule applies. His argument 

relies on the text of the FDCPA, the policies underlying the 

Act, decisions of two of our sister courts of appeals finding a 

discovery rule in the FDCPA, and decisions of this Court 

applying a discovery rule to other federal statutes. We consider 

each point in turn.
8

A

For starters, we reject summarily Rotkiske’s assertion

that the text of the FDCPA is silent on the discovery rule. See 

Rotkiske Supp. Br. 6. While it is true that the Act does not state 

in haec verba that “the discovery rule shall not apply,” the 

Supreme Court made clear in TRW Inc. v. Andrews, 534 U.S. 

19, 28 (2001), that Congress may “implicitly” provide as 

much. In that Fair Credit Reporting Act (FCRA) case, the 

Court held that Congress had “implicitly excluded a general

discovery rule by explicitly including a more limited one.” 534 

U.S. at 28. The same natural reading applies to the FDCPA in 

this appeal: Congress’s explicit choice of an occurrence rule 

implicitly excludes a discovery rule. A quotidian example 

illustrates why this is so. When a bill states that payment is 

timely if it is “received at the bank by 5:00,” it goes without 

saying that a check arriving at 6:00 is late even if it was

postmarked a week earlier. Short of the express command that 

TRW tells us is not required, it is hard to imagine how Congress 

could have more clearly foreclosed the discovery rule.

B

Rotkiske also highlights the remedial purpose of the 

FDCPA, which was enacted to combat the national problem of 

abusive debt-collection practices. Rotkiske Supp. Br. 10–11. 

Rotkiske emphasizes that those practices may involve fraud, 

deception, or self-concealing behavior such that the failure to 

apply the discovery rule would thwart the principal purpose of 

the Act. Id. at 11–13. He warns that “[a]bsent the discovery 

rule, vulnerable consumers will be left without redress if the 

harm caused by debt collectors’ abusive or deceptive acts 

remains concealed for over a year.” Id. at 16. We disagree for 

two reasons.
9

First, to the extent Rotkiske contends that the collection 

practices the FDCPA proscribes are inherently fraudulent, 

deceptive, or self-concealing, the statute belies his argument. 

Debtors are often vexed by overzealous or unscrupulous debt 

collectors precisely because of repetitive contacts by phone or 

mail. As the language of the FDCPA makes clear, many 

violations will be apparent to consumers the moment they 

occur. See, e.g., 15 U.S.C. § 1692c(a)(1) (proscribing 

communication regarding debt collection “at any unusual time 

or place”); id. § 1692d (proscribing various forms of 

harassment in the service of debt collection, including “[t]he 

use of obscene or profane language” and “[t]he publication of 

a list of consumers who allegedly refuse to pay debts”); id.

§ 1692f(7) (proscribing “[c]ommunicating with a consumer 

regarding a debt by post card”). The Act’s statute of limitations 

applies to all of its provisions, so we decline Rotkiske’s 

invitation to interpret the Act as if it contemplated only 

concealed or fraudulent conduct.3

 3 The fact that the conduct proscribed by the FDCPA 

will usually be obvious to its victims distinguishes this case 

from our decision in Stephens v. Clash, 796 F.3d 281 (3d Cir. 

2015). There, we considered a child sexual abuse claim 

governed by a statute that required a filing “within six years 

after the right of action first accrues.” 796 F.3d at 285 (quoting 

18 U.S.C. § 2255(b) (2012)). We reasoned that since “child 

pornography is most often distributed in secret and without the 

victim’s immediate knowledge,” the statute’s fundamental 

objective of providing redress to exploited children would 

most often “be thwarted without the discovery rule.” Id. at 

285–86.
10

Second, to the extent that FDCPA claims do deal with 

“false, deceptive, or misleading representation[s],” id. § 1692e, 

nothing in the Act impairs the discretion district courts possess 

to avoid patent unfairness in such cases. As we shall explain, 

equitable tolling remains available in appropriate cases.

C

In addition to his textual and purposive arguments, 

Rotkiske asks us to follow the Ninth Circuit’s decision in

Mangum v. Action Collection Service, Inc., and the Fourth 

Circuit’s decision in Lembach v. Bierman, both of which 

implied a discovery rule in the Act’s statute of limitations. We 

respectfully decline to do so.

Most fundamentally, neither opinion analyzed the 

“violation occurs” language of the FDCPA. In Mangum, the 

Ninth Circuit did not engage the text of the Act, relying instead 

on its expansive holding in Norman-Bloodsaw v. Lawrence 

Berkeley Lab., 135 F.3d 1260, 1266 (9th Cir. 1998), that “the 

discovery rule applies to statutes of limitations in federal 

litigation.” Mangum, 575 F.3d at 940. The Ninth Circuit did 

acknowledge that the Supreme Court had reversed its

application of the Norman-Bloodsaw rule to the FCRA in 

TRW. Id. at 940–41. Nevertheless, after brushing aside TRW’s 

analysis as “food for thought . . . worth musing on,” id. at 941, 

the majority of the panel in Mangum concluded that TRW

neither overruled nor undermined that circuit’s prior precedent

regarding the general applicability of the discovery rule, id.4

 4 Judge O’Scannlain disagreed, relying on essentially 

the same reading of the statutory text that we adopt here. 
11

Like the Ninth Circuit in Mangum, the Fourth Circuit in 

Lembach failed to engage the statutory text on its way to 

determining that a discovery rule would vindicate the policies 

underlying the FDCPA. Lembach, 528 F. App’x at 302. The 

Court reasoned—without mentioning equitable tolling—that 

because plaintiffs “had no way of discovering the alleged 

violation,” the defendant “should not be allowed to profit from 

the statute of limitations when its wrongful acts have been 

concealed.” Id. For these reasons, we decline to join either the 

Ninth or the Fourth Circuits in holding that the statute means 

something other than what it plainly says.

D

In addition to the opinions of our sister courts in 

Mangum and Lembach, Rotkiske places substantial weight on

our opinion in Oshiver v. Levin, Fishbein, Sedran & Berman, 

38 F.3d 1380 (3d Cir. 1994). In dictum in that case, we applied 

the discovery rule to Title VII, even though the statutory 

language required charges to be filed within 180 days “after the 

alleged unlawful employment practice occurred.” 42 U.S.C. 

§ 2000e–5(e).

The problem with Rotkiske’s reliance on Oshiver is that 

its dictum is in obvious tension with the Supreme Court’s 

decision in TRW. Instead of focusing on the statutory text

(which we relegated to a footnote, 38 F.3d at 1385 n.3), we 

described a “general rule” that “the statute of limitations begins 

to run . . . [on] the date on which the plaintiff discovers” an 

injury rather than “the date on which the wrong that injures the 

plaintiff occurs,” id. at 1385 (emphasis in original). The

 

Mangum, 575 F.3d at 944 (O’Scannlain, J., specially 

concurring).
12

Supreme Court’s approach in TRW counsels in favor of 

reconsidering our earlier practice of presuming that federal 

statutes of limitations include an implied discovery rule. 

Indeed, to the extent that our decisions have relied on such a

general presumption in applying a discovery rule to statutes 

that expressly begin to run when a violation “occurs,” they 

cannot be reconciled with the Supreme Court’s mandate that

when “the text [of a statute] and reasonable inferences from it 

give a clear answer,” that is “the end of the matter.” Brown v. 

Gardner, 513 U.S. 115, 120 (1994) (citations omitted). See 

Oshiver, 38 F.3d at 1385 (presuming applicability of discovery 

rule); Podobnik v. U.S. Postal Serv., 409 F.3d 584, 590 (3d Cir. 

2005) (same, following Oshiver).

Rather than imply a discovery rule by rote “in the 

absence of a contrary directive from Congress,” see, e.g., 

Disabled in Action of Pa. v. S.E. Pa. Transp. Auth., 539 F.3d 

199, 209 (3d Cir. 2008), we must parse each limitations period 

using ordinary principles of statutory analysis—beginning

with the statutory text and then proceeding to consider its 

structure and context. See, e.g., TRW, 534 U.S. at 28–33. As

part of that inquiry into context, it may sometimes prove 

appropriate to consider whether there are “historical[] or 

equitable reasons” to adopt either an occurrence or a discovery 

rule. Gabelli, 568 U.S at 454. See, e.g., TRW, 534 U.S. at 27–

28 (noting that latent disease and medical malpractice, but not 

the FCRA, are contexts that “cr[y] out for application of a 

discovery rule”); Stephens v. Clash, 796 F.3d 281, 285–88 (3d 

Cir. 2015) (noting the secretive nature of trade in child 

pornography and the likelihood that an occurrence rule would 

frustrate Congress’s objective to provide a remedy to 

blameless minor victims). This is not such a case, however, 
13

because the text of § 1692k(d) plainly incorporates an 

occurrence rule. 

IV

We conclude by emphasizing that our holding today 

does nothing to undermine the doctrine of equitable tolling.

Indeed, we have already recognized the availability of 

equitable tolling for civil suits alleging an FDCPA violation. 

See Glover v. F.D.I.C., 698 F.3d 139, 151 (3d Cir. 2012) 

(considering and rejecting an equitable tolling argument where 

no extraordinary barrier existed to plaintiff’s suit). We do not 

reach the question in this case only because Rotkiske failed to 

raise it on appeal. Accordingly, our opinion should not be read 

to foreclose the possibility that equitable tolling might apply to

FDCPA violations that involve fraudulent, misleading, or selfconcealing conduct. See, e.g., Bailey v. Glover, 88 U.S. (21 

Wall.) 342, 348 (1874) (“[W]here the party injured by the fraud 

remains in ignorance of it without any fault or want of 

diligence or care on his part, the bar . . . does not begin to run 

until the fraud is discovered, though there be no special 

circumstances or efforts on the part of the party committing the 

fraud to conceal it . . . .”).

5

 5 If Rotkiske had preserved reliance on equitable tolling 

on appeal, then Judges McKee, Ambro, Vanaskie, and Shwartz 

would have remanded to allow the District Court to consider 

whether he would be entitled to rely on this doctrine because 

our precedent had not previously recognized that a defendant’s 

self-concealing conduct may be a basis for equitable tolling.
14

V

Civil actions alleging violations of the Fair Debt 

Collection Practices Act must be filed within one year from the 

date of the violation. Because Rotkiske’s action was filed well 

after that period expired, his action was untimely. We will 

affirm the judgment of the District Court.