Kathleen Bliss v. Corecivic, Inc.

                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT

KATHLEEN BLISS,                                     No. 19-16167
                       Plaintiff-Appellant,
                                                      D.C. No.
                      v.                           2:18-cv-01280-
                                                     JAD-GWF
CORECIVIC, INC.,
                     Defendant-Appellee.              OPINION


         Appeal from the United States District Court
                   for the District of Nevada
         Jennifer A. Dorsey, District Judge, Presiding

              Argued and Submitted June 9, 2020
                  San Francisco, California

                      Filed October 27, 2020

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

                   Opinion by Judge Hunsaker




    *
      The Honorable Patrick J. Schiltz, United States District Judge for
the District of Minnesota, sitting by designation.
2                   BLISS V. CORECIVIC, INC.

                          SUMMARY **


                           Wiretap Act

    The panel affirmed in part and reversed in part the
district court’s grant of summary judgment, on statute of
limitations grounds, on a criminal defense attorney’s claims
of violations of the Wiretap Act by CoreCivic, Inc., in the
alleged recording of privileged telephone calls between the
attorney and clients who were detained in CoreCivic’s
detention facility in Nevada.

    A plaintiff must bring an action under the Wiretap Act
no “later than two years after the date upon which the
claimant first has a reasonable opportunity to discover the
violation.” The panel held that “the violation” triggering the
statute of limitations was each individual call that CoreCivic
recorded, rather than CoreCivic’s recording protocol as a
whole, and CoreCivic was entitled to summary judgment
only as to calls that the attorney had a reasonable opportunity
to discover were recorded more than two years before she
filed suit.

    The panel affirmed the district court’s determination that
the statute of limitations was first triggered when the
attorney received discovery in June 2016 that contained
recordings of her privileged telephone calls, and the district
court’s holding that the attorney’s claims were untimely to
the extent they were based on earlier interceptions. The
panel held that to the extent the attorney’s claims were based
on calls recorded after June 2016, the timeliness of such

    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                   BLISS V. CORECIVIC, INC.                        3

claims depended on when she first had a reasonable
opportunity to discover that such calls were recorded. The
panel reversed in part and remanded for the district court to
conduct this analysis.


                           COUNSEL

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.


                            OPINION

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

    1
       The Nevada legislature amended Nevada’s Act to conform with
the Federal Act, with a few exceptions inapplicable here. See Lane v.
Allstate Ins. Co., 

969 P.2d 938

, 940 (Nev. 1998).
4                 BLISS V. CORECIVIC, INC.

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
                 BLISS V. CORECIVIC, INC.                   5

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. 6

               BLISS V. CORECIVIC, INC.

    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
                  BLISS V. CORECIVIC, INC.                   7

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, 

137 S. Ct. 1562

, 1568 (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, 

140 S. Ct. 1731

, 1738 (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 (1988); see also Maracich
v. Spears, 

570 U.S. 48

, 65 (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 (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
8                  BLISS V. CORECIVIC, INC.

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 and discrete cause of action accrue[s] under
section 2511(1)(c) each time a recording of an unlawfully
intercepted communication is played to a third party who has
not yet heard it”); see, e.g., Allen v. Brown, 

320 F. Supp. 3d 16

, 37 (D.D.C. 2018) (interpreting Sparshott as providing
                   BLISS V. CORECIVIC, INC.                        9

authority that “each interception is a discrete violation,”
triggering its own limitations period because the court
dismissed the federal wiretap claim where there were no
“incidents of wiretapping which occurred within two years
of the plaintiffs’ filing suit”) (quoting 

Sparshott, 311 F.3d at 431

); In re Cases Filed by DIRECTV, Inc., 

344 F. Supp. 2d 647

, 656 (D. Ariz. 2004) (denying a motion to dismiss
because “each violation . . . gives rise to a discrete cause of
action” and violations may have occurred within the
limitations period) (citation and quotation marks omitted).
Construing “the violation” to refer to a larger pattern or
scheme that results in multiple interceptions is inconsistent
with the Act’s multiple references to “communication” in the
singular. There simply is no textual basis for morphing what
otherwise would be considered separate violations into a
single violation because they flow from a common practice
or scheme.

    CoreCivic argues the Act’s statutory-damages provision
indicates that the overall scheme, and not individual acts
taken as part of that scheme, is the relevant violation. The
Act provides for statutory damages “of $100 a day for each
day of violation or $10,000,” whichever is greater. 18 U.S.C.
§ 2520(c)(2)(B). We do not see how this provision
necessitates interpreting “the violation” to refer to an overall
pattern or scheme that results in multiple violations. But see
DirecTV, Inc. v. Webb, 

545 F.3d 837

, 845 (9th Cir. 2008)
(noting the statutory-damages provision “suggests” that each
signal interception does not constitute a separate violation
because it “contemplat[es] a single violation . . . over many
days”). 2 The statutory-damages provision clarifies that

    2
       The defendant in Webb possessed 57 pirate-access devices, but
because his system as a whole “was capable of just one signal
interception no matter how many devices Webb attached to it,” we held
10                   BLISS V. CORECIVIC, INC.

violations are remedied on a per-day basis, not a per-
occurrence basis. That is, if multiple violations occur in a
single day, only one damage assessment is made. And were
a single violation to extend over multiple days, the number
of assessments would be based on the number of days the
violation continued. This provision does not address the
question before us, nor does it indicate, as CoreCivic
suggests, that a course of conduct leading to multiple
interceptions must be treated as a single violation.

    In sum, we conclude that the only reasonable
interpretation based on both the text and context of the Act
is that “the violation” refers to each separate interception,
whether the interception is a singular event or part of a larger
pattern of conduct. See 

Maracich, 570 U.S. at 65

.

B. Accrual of Bliss’s Claims

    Although the district court incorrectly construed “the
violation” to refer to a scheme or practice in this case, it
correctly determined that the Act’s two-year statute of
limitations was first triggered when Bliss received discovery
in June 2016 that contained recordings of her privileged
telephone calls. As stated above, the Wiretap Act bars a
claim if the plaintiff files suit more than “two years after the
date upon which the claimant first has a reasonable
opportunity to discover the violation.” 18 U.S.C. § 2520(e).

that conduct to constitute one violation, not 57. 

Webb, 545 F.3d at 845

.
We did not consider how to evaluate interceptions separated in time. See

id. “[W]ell-reasoned dicta is

the law of the circuit, but we are not bound
by a prior panel’s comments made casually and without analysis, uttered
in passing without due consideration of the alternatives, or done as a
prelude to another legal issue that commands the panel’s full attention.”
United States v. McAdory, 

935 F.3d 838

, 843 (9th Cir. 2019) (citations
and alterations omitted).
                     BLISS V. CORECIVIC, INC.                        11

Here, the undisputed facts establish that Bliss had such
notice of recordings made before June 27, 2016, when she
received discovery from the government on that date that
included recorded calls. Although Bliss did not uncover the
recordings until approximately three months later, accrual of
the limitations period is not based on when the plaintiff
actually discovers a violation but when the plaintiff first had
a “reasonable opportunity” to do so.

Id. Therefore, we affirm

the district court’s holding that Bliss’s claims are untimely
to the extent they are based on interceptions that occurred
before June 27, 2016.

     However, the record indicates that Bliss continued
communicating by telephone with her clients detained in
CoreCivic’s Nevada facility after June 27, 2016. To the
extent her claims are based on calls that were recorded after
this date, the timeliness of such claims depends on when she
first had a reasonable opportunity to discover that such calls
were recorded. 18 U.S.C. § 2520(e). Because the district
court did not address when Bliss first had a reasonable
opportunity to discover that calls occurring after June 27,
2016, were being recorded, we decline to reach this issue and
remand for the district court to conduct this analysis. We do
note, however, that to the extent Bliss’s claims are based on
calls that were recorded less than two years before she filed
suit on July 12, 2018, they are not time barred. 3


    3
      The parties agree that the conclusion we reach should apply equally
to Bliss’s federal and state-law claims. Although the global statute of
limitations governing statutory actions under Nevada law does not use
the term “the violation,” see Nev. Rev. Stat. § 11.190(4)(b), the
remainder of our analysis applies with equal force to that provision.
Nevada’s limitations period, like the federal Act’s, begins to run when
the plaintiff “knows or should know of facts” supporting a cause of
action. See Bemis v. Estate of Bemis, 

967 P.2d 437

, 440 & n.1 (Nev.
12                   BLISS V. CORECIVIC, INC.

                      III.     CONCLUSION

    Each interception of Bliss’s privileged telephone calls is
a separate violation of the Act. Therefore, the statute of
limitations is triggered anew for each call that CoreCivic
recorded, and CoreCivic is entitled to summary judgment
only as to calls that Bliss had a reasonable opportunity to
discover were recorded more than two years before she filed
suit.

    AFFIRMED IN PART, REVERSED IN PART, and
REMANDED for further proceedings consistent with
this opinion. Each party shall bear its own costs on appeal.




1998) (emphasis omitted). And Nevada’s wiretap act likewise suggests
that each interception gives rise to a discrete claim. See, e.g., Nev. Rev.
Stat. § 200.620(1) (“[I]t is unlawful for any person to intercept or attempt
to intercept any wire communication . . . .” (emphasis added));

id. § 200.650 (“[A]

person shall not intrude upon the privacy of other
persons by surreptitiously listening to . . . any private conversation
engaged in by the other persons . . . .” (emphasis added));

id. § 200.690 (parallel

damages provision).
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