Bliss v. Corecivic, Inc.

• Decision Date: 27 October 2020
• Docket Number: No. 19-16167,19-16167
• Citation: 978 F.3d 1144
• Parties: Kathleen BLISS, Plaintiff-Appellant, v. CORECIVIC, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

978 F.3d 1144

Kathleen BLISS, Plaintiff-Appellant,

v.CORECIVIC, INC., Defendant-Appellee.

No. 19-16167

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 2020 San Francisco, California

Filed October 27, 2020

Anna P. Prakash (argued), Matthew H. Morgan, and Charles A. Delbridge, Nichols Kaster, PLLP, Minneapolis, Minnesota; Paul S. Padda and Joshua Y. Ang, Paul Padda Law, PLLC, Las Vegas, Nevada; for Plaintiff-Appellant.

Nicholas D. Acedo (argued), Daniel P. Struck, and Kevin L. Nguyen, Struck Love Bojanowski & Acedo, PLC, Chandler, Arizona; for Defendant-Appellee.

Before: Eric D. Miller and Danielle J. Hunsaker, Circuit Judges, and Patrick J. Schiltz,^* District Judge.

HUNSAKER, Circuit Judge:

Criminal defense attorney Kathleen Bliss sued CoreCivic, Inc. under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. §§ 2510 – 2523, and Nevada's wiretap act, Nev. Rev. Stat. §§ 200.610 – 200.690 (collectively the "Wiretap Act" or the "Act").¹ Bliss alleged CoreCivic unlawfully recorded privileged telephone calls between herself and her clients who were detained in CoreCivic's detention facility in Nevada. The question we must decide is whether "the violation" triggering the statute of limitations is CoreCivic's call-recording protocol as a whole or each individual call that it recorded. Because we conclude it is the latter, we reverse in part the district court's grant of summary judgment in favor of CoreCivic and remand for further proceedings.

I. BACKGROUND

A. CoreCivic's Interceptions

Bliss practices criminal law in Nevada. On June 27, 2016, she received discovery from the government in her client Robert Kincade's case, which included recordings CoreCivic made of privileged telephone calls between Bliss and Kincade. The government provided additional discovery that also contained calls recorded on July 18 and 19, 2016. For various reasons, Bliss did not review the government's discovery and uncover the telephone recordings until late September 2016. Thus, she continued to communicate by telephone with Kincade, who remained in CoreCivic's Nevada facility, after receiving the government's June and July productions. When Bliss finally did review the discovery in late September, she learned that CoreCivic recorded privileged telephone calls between her and Kincade at least through July 19, 2016.

Soon after Bliss learned her calls with Kincade were recorded, she "pushed back" by telling the government and the court about CoreCivic's interceptions. Apparently believing her "push[ ] back" would stop CoreCivic's recording practice, Bliss resumed telephone communications with her clients detained at CoreCivic's Nevada facility. Bliss's actions did not have the intended result, however, and Bliss alleges that CoreCivic continued to record calls between attorneys and their clients at the Nevada facility through February 2019.

B. Bliss's Lawsuit for Wiretap Act Violations

More than two years after receiving the initial discovery containing recordings of her telephone calls, on July 12, 2018, Bliss sued CoreCivic in federal court on behalf of a purported nationwide class and Nevada subclass of similarly-situated attorneys for violation of the Wiretap Act. Bliss alleged, among other things, that CoreCivic knowingly recorded her privileged telephone calls with her clients after July 12, 2016.

CoreCivic moved for summary judgment arguing Bliss's claims were barred by the Act's two-year statute of limitations because her first reasonable opportunity to discover the alleged violation was no later than June 27, 2016, when she received the government's first production that included CoreCivic's telephone recordings. The district court noted a lack of guidance from our circuit about the meaning of the phrase "the violation," which is the triggering event for the Wiretap Act's limitation period, and it heavily relied on the D.C. Circuit's reasoning in Sparshott v. Feld Entertainment, Inc. , 311 F.3d 425 (D.C. Cir. 2002). There, the plaintiff brought claims under the Wiretap Act after a co-worker with whom she was in a romantic relationship recorded her phone calls and conducted other surveillance over an extended period. Id. at 427–28. The D.C. Circuit rejected the plaintiff's attempt to distinguish between types of wiretapping for purposes of the statute of limitations, holding that the plaintiff's discovery of some surveillance activities was enough to give the plaintiff a reasonable opportunity to discover the extent of the overall scheme. Id. at 430–31.

The district court noted that, as in Sparshott , Bliss's claims arose from a pattern of conduct: CoreCivic had a protocol under which it recorded all telephone calls in the same manner and from the same location. And the district court concluded that the Act's statute of limitations began running for all calls recorded under CoreCivic's protocol when the government first produced discovery that included recorded telephone calls because this discovery gave Bliss her first reasonable opportunity to learn of CoreCivic's wiretapping activities. Because the district court concluded that the statute of limitations was triggered for all of CoreCivic's recording activity, it held Bliss's claims were time barred in their entirety because she filed suit over two years after receiving the initial discovery on June 27, 2016, and it granted summary judgment for CoreCivic. Bliss timely appealed.

We have jurisdiction to review the district court's summary-judgment decision under 28 U.S.C. § 1291, and we review the decision and rulings on the appropriate statute of limitations de novo. Johnson v. Poway Unified Sch. Dist. , 658 F.3d 954, 960 (9th Cir. 2011) ; Livingston Sch. Dist. Nos. 4 & 1 v. Keenan , 82 F.3d 912, 915 (9th Cir. 1996).

II. DISCUSSION

The Wiretap Act provides a civil cause of action to "any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of [ 18 U.S.C. §§ 2510 – 2523 ]." 18 U.S.C. § 2520(a). A plaintiff must bring an action under the Act no "later than two years after the date upon which the claimant first has a reasonable opportunity to discover the violation ." Id. § 2520(e) (emphasis added). The parties dispute the meaning of this triggering event—"the violation." Bliss argues "the violation" refers to each separate interception, or recorded call, and that multiple interceptions cannot constitute a single violation. CoreCivic urges us to construe "the violation" to mean the overall wiretapping scheme or practice, not each discrete recording.

A. The Meaning of "the Violation" under the Act

In interpreting the disputed phrase, "[w]e begin, as always, with the text." Esquivel-Quintana v. Sessions , ––– U.S. ––––, 137 S. Ct. 1562, 1568, 198 L.Ed.2d 22 (2017). While the Act identifies what is violative conduct, it does not separately define the meaning or scope of "the violation" that triggers the statute of limitations. See 18 U.S.C. § 2510. Thus, to ascertain the reach of this phrase we consider the public understanding of the words at the time of enactment, Bostock v. Clayton County , ––– U.S. ––––, 140 S. Ct. 1731, 1738, 207 L.Ed.2d 218 (2020), "as well as the language and design of the statute as a whole," K Mart Corp. v. Cartier, Inc. , 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988) ; see also Maracich v. Spears , 570 U.S. 48, 65, 133 S.Ct. 2191, 186 L.Ed.2d 275 (2013) (stating "an interpretation of a phrase of uncertain reach is not confined to a single sentence when the text of the whole statute gives instruction as to its meaning"); United Sav. Ass'n of Tex. v. Timbers of Inwood Forest Assocs., Ltd. , 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988) (describing statutory interpretation as a "holistic endeavor").

It will come as no surprise that when Congress enacted the Act's statute of limitations in 1986, "violation" was commonly defined in the singular as "the act of violating" or "a breach or infringement, as of a law or agreement." Random House College Dictionary 1469 (Revised ed. 1982) (emphasis added). One source made this point even more explicit, defining "violation" as "[i]nfringement or breach ... of some principle or standard of conduct or procedure, as an oath, promise, law, etc.; an instance of this ." Compact Edition of the Oxford English Dictionary 3635 (1971) (emphasis added). These common definitions are consistent with the prevailing legal definition. See Black's Law Dictionary 1408 (5th ed. 1979) (defining "violation" as "breach of right, duty or law").

Thus, as it is clear that the statute is referring to a singular violative event, the material question is how the Act defines violative conduct, i.e., whether it prohibits individual acts, or practices and schemes that result in unlawful acts. Considering "the violation" in the larger context of the Act indicates that this phrase refers to each individual interception (or other action) that violates the Act, not overall practices or schemes that result in many individual interceptions. As stated above, the Act prohibits the interception of certain types of communication. 18 U.S.C. § 2520(a). "Intercept" is defined as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." Id. § 2510(4) (emphasis added). Anyone who "intentionally uses" a "device to intercept any oral communication " under circumstances specified in the Act is subject to punishment. Id. § 2511(1)(b) (emphasis added). And a civil cause of action is available to anyone "whose wire, oral, or electronic communication is intercepted." Id. § 2520(a) (emphasis added).

The plain import of these definitions is that each interception is a discrete violation. Cf. Fultz v. Gilliam , 942 F.2d 396, 402 (6th Cir. 1991) (holding "[t]he text of the Wiretap[ ] Act plainly indicates, and its purpose necessitates, that a new...