. In sum, given the unanimity among the federal courts, all of which have ruled negatively on the claim of secondary liability under § 2520, this theory of liability must also fail and that aspect of Count One must be dismissed as against CSP Defendants. C. The Remaining Theory of Disclosure/Use Liability under § 2520 Must Fail Because the Complaint Does Not Set Forth Facts to Establish Even a Claim for Primary Liability under the Federal Wiretap Act. The final and only legally available theory of liability relative to the CSP Defendants for violation of the Federal Wiretap Act is that they disclosed or used illegally intercepted oral communications.

“Congress intended to streamline the language of the provision by using the blanket phrase ‘person or entity which engaged in that violation’ rather than delineating each kind of violation separately-- but that it did not, in so doing, intend to eliminate procurement violations from civil liability.” Id. at 428 (citing S. Rep. No. 95-797, at 26- 27 (1986), as reprinted in 1986 U.S.C.C.A.N. 3555, 3580-81). In further contrast with CSP Defendants’ and the Peavy court’s approach, the Eleventh and Ninth Circuits have presupposed that post-amendment 18 U.S.C. § 2520 allows civil damages for procurement violations. In Tapley v. Collins, 211 F.3d 1210 (11 th Cir. 2000), the Eleventh Circuit said that the Act “provides that a person who intentionally intercepts, endeavors to intercept, or procures any other person to intercept Case 1:09-cv-02030-CKK Document 102 Filed 10/11/11 Page 14 of 28 10 or endeavor to intercept

Similarly, under the Wiretap Act, 18 U.S. C. § 2510, civil actions may be brought only by a “person whose . . . communication is intercepted, disclosed, or intentionally used.” 18 U.S.C. § 2520(a). The Stored Communication Act likewise limits it civil remedies to “person[s] aggrieved” under the statute, id.

The decisions to the contrary that AT&T relies on are not persuasive. The courts in Tapley v. Collins, 211 F.3d 1210 (11th Cir. 2000) and Blake v. Wright, 179 F.3d 1003 (6th Cir. 1999), superimposed qualified immunity on top of the good faith defense of 18 U.S.C. § 2520(d). For the reasons stated above, the better view, and the one compelled by Jacobson, is that Congress intended the explicit statutory defenses it created to be exclusive.

sion of critical facts of both the injury and its cause, even though he may be unaware that a legal wrong has occurred); Fish v. GreatBanc Trust Co., 749 F.3d 671, 679 (7th Cir. 2014)(in ERISA context, definition of “actual knowledge” does not require a potential plaintiff to have knowledge of every last detail of a transaction, or knowledge of its illegality.”)(citation omitted); Norman v. Salomon Smith Barney, Inc., 350 F. Supp. 2d 382, 391 n.3 (S.D.N.Y. 2004)(defendant in action under the Investment Advisors Act need not show plaintiffs were aware conduct was illegal, only that plaintiffs were on inquiry notice about the specific facts that form the predicate of their claim).2 Because as of January 7, 2014, Hoover had all of the factual information he relied upon to bring his claim under 18 U.S.C. § 2511, he cannot now argue that he did not have a reasonable opportunity to discover the alleged interception as of January 7, 2014, and his claim is time-barred pursuant to 18 U.S.C. § 2520(e). 2 See also Montenegro v. United States, 248 F.3d 585, 594 (7th Cir. 2001), overruled on other grounds by Ashley v. United States, 266 F.3d 671 (7th Cir. 2001)(ignorance of legal rights does not toll statute of limitations); Shoshone Indian Tribe of Wind River Reservation, Wyo. v. United States, 672 F.3d 1021, 1032 (Fed. Cir. 2012)(same); Turner v. Bowen, 862 F.2d 708, 710 (8th Cir. 1988)(same); Quina v. Owens-Corning Fiberglas Corp., 575 F.2d 1115, 1118 (5th Cir. 1978)(same); Jamison v. Jones, 197 Fed. Appx. 743, 746, 2006 WL 2556385, *1 (10th Cir. 2006)(same); Jackson v. Astrue, 506 F.3d 1349, 1356 (11th Cir. 2007)(same); Richards v. Mileski, 662 F.2d 65, 71 n.10 (D.C. Cir. 1981)(same). Case: 3:16-cv-00424-jdp Document #: 37 Filed: 02/09/17 Page 7 of 11 8 II. HOOVER FAILS TO DEMONSTRATE THAT HE FILED AN ADMINISTRATIVE CLAIM UNDER THE FEDERAL TORT CLAIM ACT As Hoover himself acknowledges, before filing an FTCA cl

The plain language of the Federal Wiretap Act creates no liability or private cause of action for “attempted interception.” See 18 U.S.C. § 2520. Case 2:13-cv-00988-DBP Document 18 Filed 01/06/14 Page 19 of 41 13 ii.

Viewed in Case3:08-cv-04373-VRW Document31 Filed06/26/09 Page10 of 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 also Smith v. SEC, 129 F.3d 356, 364 (6th Cir. 1997) (vacating decision that Section 2520 waived the sovereign immunity of the United States). Section 223 may be read as resolving this difference while adding a separate cause of action under which the new “unauthorized disclosure” violation could be raised against the United States. 5 See also Exh. 6 to Govt. Motion (147 Cong. Rec. S11007 and S11057 (daily ed. Oct. 25, 2001) (section-by-section” descriptions of Patriot Act describing Section 223 as creating unauthorized disclosure provision) (submitted herewith). The DOJ Manual cited by plaintiffs, see Pls. Opp. (Dkt. 29) at 9, is not to the contrary, but describes the liability of individual “officers and employees of the United States who have engaged in willful violations” of ECPA and (in a paragraph omitted from plaintiffs’ quotation) contrasts that with ECPA’s “separate provisions for suits against the United States” under Section 2707 which excludes the United States from suit

6 Defendants offer four statutes as candidates. The first two statutes that Defendants rely 7 on with respect to the Wiretap Act and ECP A violations, 18 U.S.c. §§ 2520(a) and 2707(a), do 8 not grant consent to suit against the United States, so they do not meet the first requirement of 9 the exception. The third statute, section 2712, does grant consent to suit against the United 10 States, but it does not meet the second requirement because it does not forbid equitable relief.

Similarly, under the Wiretap Act, 18 U.S. C. § 2510, civil actions may be brought only by a “person whose . . . communication is intercepted, disclosed, or intentionally used.” 18 U.S.C. § 2520(a). The Stored Communication Act likewise limits its civil remedies to “person[s] aggrieved” under the statute, id.

See 18 U.S.C. § 2712 (authorizing suit against “the United States”). And the fact that Congress has expressly excluded the United States from causes of action under the Electronic Communications Privacy Act, see 18 U.S.C. § 2520 and § 2707, as Plaintiffs note, see Pls. Opp. at 24, reinforces the conclusion that prior versions of these provisions, which authorized suit against a “person or entity,” were not intended to waive the sovereign immunity of the United States.