00-1045 TRW, Inc. v. Andrews

Listen to this article

“Congress provided in the FCRA that the two-year statute of limitations runs from ‘the date on which the liability arises” subject to a single exception for cases involving a defendant’s willful misrepresentation of material information. sec. 1681p. The most natural reading of sec. 1681p is that Congress implicitly excluded a general discovery rule by explicitly including a more limited one. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993)(‘Expressio unius est exclusio alterius.’). We would distort sec. 1681p’s text by converting the exception into the rule.

“At least equally telling, incorporating a general discovery rule into sec. 1681p would not merely supplement the explicit exception contrary to Congress’ apparent intent; it would in practical effect render that exception entirely superfluous in all but the most unusual circumstances. A consumer will generally not discover the tortious conduct alleged here-the improper disclosure of her credit history to a potential user-until she requests her file from a credit reporting agency. If the agency responds by concealing the offending disclosure, both a generally applicable discovery rule and the misrepresentation exception would operate to toll the statute of limitations until the concealment is revealed. Once triggered, the statute of limitations would run under either for two years from the discovery date. In this paradigmatic setting, then, the misrepresentation exception would have no work to do.”

Reversed and remanded.

Local Effect:

The Court’s decision is consistent with governing Seventh Circuit case law. Rylewicz v. Beaton Servs., Ltd., 888 F.2d 1175 (CA7 1989).

Certiorari to the United States Court of Appeals for the Ninth Circuit, Ginsburg, J.