United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 20, 1998 Decided July 14, 1998
No. 97-5257
Steven K. Berry,
Appellant
v.
Sherman M. Funk, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(94cv02163)
Theodore B. Olson argued the cause and filed the briefs for
appellant. Michelle L. Bodley entered an appearance.
R. Craig Lawrence, Assistant United States Attorney, ar-
gued the cause for appellees, with whom Wilma A. Lewis,
United States Attorney, was on the brief. John D. Bates,
Assistant United States Attorney, entered an appearance.
Before: Silberman, Williams, and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Silberman.
Silberman, Circuit Judge: Steven K. Berry, former Acting
Assistant Secretary of State for Legislative Affairs, com-
plained that various present and former State Department
officials and employees monitored his telephone conversations
with Elizabeth Tamposi, former Assistant Secretary of State
for Consular Affairs, and used and disclosed the contents of
these calls in violation of the federal wiretap statute and the
Fourth Amendment. The district court granted summary
judgment for the defendants. We vacate and remand for
further proceedings.
I.
The facts before us are drawn from appellant's complaint
as well as a government document attached as an exhibit to
the complaint entitled Special Inquiry Into the Search and
Retrieval of William Clinton's Passport Files, and which
under Fed. R. Civ. P. 10(c) is considered a part thereof for all
purposes (the government does not dispute the contents of
the latter document). This case arises out of events that
caused considerable controversy in the heat of the 1992
presidential campaign. It will be recalled that President
Clinton's involvement with the draft during the Vietnam War
was a matter of widespread attention and great confusion.
Rumors floated that, while abroad, he had sought to renounce
his citizenship in order to avoid military service. Although
Clinton's passport records provided no substantiation for this
accusation, State Department personnel reviewing these doc-
uments became concerned that Clinton's file may have been
tampered with in order to eliminate embarrassing materials.
(The matter was referred to the FBI, which, after a brief
investigation, found no evidence of tampering.)
Appellant was involved in the "Clinton passport probe" as a
result of interest expressed by Republican congressmen. He
was, at the time, the Acting Assistant Secretary of State for
Legislative Affairs. Performing what he viewed as his liaison
responsibilities, Berry assisted Congressman Gerald Solomon
in drafting a letter to the Department in which Solomon
would inquire whether Clinton had ever asked about or
sought dual citizenship. Berry then called Assistant Secre-
tary of State for Consular Affairs Elizabeth Tamposi and
asked her what files the Department kept or retained con-
cerning citizenship records which would contain information
about Clinton.
Two days later (and one day after Solomon's letter arrived),
on September 30, 1992, Tamposi placed a telephone call to
Berry through the State Department Operations Center to let
him know that she had Clinton's file in her possession.1 The
Operations Center (also known as "the Watch") is a round-
the-clock communications center that performs a variety of
functions, such as generating briefings on world events and
serving as the focal point for handling urgent crises. The
Watch also provides a communications support function.
High-ranking Department officials can call the Center, and
Watch Officers will connect them to other government offi-
cials. The Watch's telephone console provides its Officers
with the capacity to monitor all telephone calls placed through
the Operations Center. This capability is to be used to serve
several interests of the State Department; it enables Watch
Officers to monitor crisis situations, author memorandums of
conversations between officials for State Department records,
and patch others into conversations as needed.
During their September 30 conversation, Tamposi told
Berry that Clinton's passport file may have been tampered
with and described to him the condition of some of the
documents. Three days later, on October 3, 1992, Berry
placed another call to Tamposi through the Watch to discuss
a second letter he was about to receive from Solomon. Tam-
posi told Berry that the State Department's Inspector Gener-
al and the FBI were investigating the possibility that some-
__________
1 Tamposi obtained the file through conducting a search pursu-
ant to FOIA requests that had been submitted by the media and
designated by personnel in the State Department's FOIA office for
expedited processing.
one tampered with Clinton's file. Later that day, Berry
spoke with Janet Mullins, Assistant to the President for
Political Affairs. Mullins told Berry that Tamposi had at-
tempted to contact Margaret Tutwiler, Assistant to the Presi-
dent for Communications, to discuss the Clinton passport file
matter. She told him to relay to Tamposi that it was
inappropriate for the White House to become involved in the
issue and that her calls would not be returned. The next
evening, October 4, 1992, Tamposi called Berry through the
Watch, and Berry passed Mullins' message to Tamposi.2
Berry alleges that his three telephone conversations with
Tamposi which took place between September 30 and October
4 were intentionally monitored by Watch Officers in the
Operations Center. The Operations Center Manual in effect
at the time of these conversations cautioned that calls be-
tween Senior Department Officials (other than the Secretary
and Deputy Secretary) "should not be monitored unless they
so request." He further complains that one of the Watch
Officers during the October 4 call pressed a button that
caused the call to go "live," resulting in the broadcast of the
conversation throughout the entire Operations Center. Ber-
ry insists that he had no knowledge that his calls were being
monitored and that neither he nor Tamposi had ever consent-
ed to monitoring.
On October 15, Acting Secretary of State Lawrence Eagle-
burger learned that the Operations Center apparently had
overheard conversations between Berry and Tamposi and was
concerned that the contents of these conversations contained
evidence of misconduct by Berry and/or Tamposi. Eaglebur-
ger asked the Acting Inspector General Roscoe Suddarth--
the Inspector General Sherman Funk was on an overseas
trip--to speak with the Watch Officers who had overheard
__________
2 During one of their conversations, although it is not clear
which, Tamposi asked Berry whether he knew of any political
appointees that might assist in searching Clinton's records in Lon-
don. Berry provided only the name of the Ambassador to the
United Kingdom but commented it would be inappropriate to
burden him with that task.
the calls to determine if there was sufficient evidence to begin
a more formal inquiry.3 Suddarth immediately convened a
meeting with John Duncan, Counsel to the Inspector General,
Glyn Davies, Director of the Operations Center, and Robert
Pearson, Director of the Executive Secretariat. Participants
in this session were informed that the monitoring of the
Berry/Tamposi telephone calls may have violated both Opera-
tions Center procedure and Title III of the Omnibus Crime
Control and Safe Streets Act of 1968, 18 U.S.C. ss 2510-2521
(1994 & Supp. II 1996).
After interviewing Watch Officers who had overheard the
Berry/Tamposi conversations, Suddarth recommended to Ea-
gleburger that the Inspector General's Office (the Office) be
authorized to open a formal administrative investigation into
possible misconduct by State Department employees in the
search for the Clinton passport files. Eagleburger so direct-
ed. (This, at least, is the version of events recounted in
Eagleburger's affidavit. Berry's complaint and the Office's
report both claim that the Office decided to open a formal
investigation and merely notified Eagleburger of its decision.)
The Operations Center immediately issued new guidelines for
monitoring calls, which provided that "we must ask permis-
sion of the party initiating the call ... to remain on the line,"
but the Acting Inspector General postponed investigation of
the Operations Center's monitoring until the Clinton passport
file inquiry was complete. The Office's procedure was incon-
sistent with its normal practice of investigating alleged crimi-
nal conduct before investigating supposed administrative mis-
conduct.
__________
3 We take notice that, the day before (October 14), Michael
Isikoff had a front-page story in The Washington Post "rais[ing]
questions" as to whether Tamposi's communications to the London
Embassy concerning Clinton's passport files reflected deviations
from standard procedures in the handling of passport records.
Michael Isikoff & Eugene Robinson, U.S. Sought Clinton Files at
Embassy, Wash. Post, Oct. 14, 1992, at A1. And three days before
that, Anna Quindlen in The New York Times implied the Bush State
Department had engaged in "dirty tricks." Anna Quindlen, Rumor
Has It, N.Y. Times, Oct. 11, 1992, s 4, at 17.
When the Office consulted the FBI for its assistance in the
misconduct inquiry, the Bureau learned of the possibly illegal
monitoring by Watch Officers and thereupon notified the
Office that a criminal investigation by the Department of
Justice would soon commence. Duncan, Counsel to the In-
spector General, protested that such an investigation would
harm the Office's inquiry into the Clinton passport matter.
Representatives from the FBI, the Office, and the Criminal
Division of the Justice Department met to resolve the dis-
pute. Michael Shepard, Chief of the Public Integrity Section
of the Criminal Division, expressed concern that if the moni-
toring of the Berry/Tamposi calls were illegal, it would impair
the ability of the Justice Department to prosecute should
criminal wrongdoing be uncovered in the Clinton passport
inquiry. He advised the Office to assemble a group of
investigators "untainted" by knowledge of the monitored con-
versations' contents to take over the Clinton investigation.
Inspector General Funk thereupon returned to Washington
where he was scheduled to brief Eagleburger about the
investigation the next morning. Because Funk was suppos-
edly "untainted" and Eagleburger also wished to remain
"untainted," 4 Funk was not told the contents of the
Berry/Tamposi calls until after his meeting with the Acting
Secretary. Soon after this session, the FBI began its investi-
gation into the Watch's monitoring activities, and Funk
turned over the investigation of the Clinton passport files
inquiry to an "untainted" team of investigators led by Ter-
rence Shea, Assistant Inspector General for Security Over-
sight. The Office claims that information from the "tainted"
investigators was screened and only "untainted" information
was turned over to the new team. As Funk and Suddarth
were "tainted," they recused themselves from any further
participation in investigative determinations, report drafting,
__________
4 Eagleburger's wish to remain untainted puzzles us as he
presumably had already been tainted on October 15, the date he
heard rumors about the contents of the calls and ordered the
preliminary investigation.
and referrals for potential administrative or criminal miscon-
duct.
On November 18, 1992, the Office publicly released a report
entitled, Special Inquiry Into the Search and Retrieval of
William Clinton's Passport Files. The Justice Department
had yet to make a determination regarding the legality of
Operations Center monitoring practices so the report was the
product of only the "untainted" team's work. The report
concluded that Berry provided assistance for activities that he
knew were designed to undermine the Clinton campaign and
that these actions "were inappropriate and probably a viola-
tion of the Hatch Act." The Office recommended that "ap-
propriate disciplinary action" be taken against Berry. At a
press conference held in conjunction with the release of the
report, Funk stated generally that State Department person-
nel whose conduct had been investigated had "attempt[ed] to
use the Department of State, the records, and the people of
the Department of State to influence the outcome of a presi-
dential election."
After receiving a copy of the Inspector General's report,
Genta Hawkins Holmes, Director of the Foreign Service,
requested that Eagleburger relieve Berry of his duties. Ea-
gleburger did so, but Berry remained with State Department
in another position at the same salary for the remainder of
the Bush Administration. The report subsequently formed
the basis for the Attorney General's application for, and court
approval of, the appointment of an Independent Counsel to
investigate possible criminal activity relating to the search of
Clinton's passport records. After a three-year investigation,
the Independent Counsel, in a letter to Berry's counsel,
concluded, "[W]e have discovered no evidence that Berry
committed any crime related to the matters which resulted in
the Appointment of an Independent Counsel. Indeed, we
have concluded that he acted within the scope of his authority
and responsibilities at the time of the incident and did not
violate any law, government regulation or ethics standard."
The Justice Department never brought criminal charges
related to the monitoring of telephone conversations by Oper-
ations Center staff. Berry, however, filed a civil suit alleging
that the interception, disclosure, and use of the contents of his
telephone conversations with Tamposi violated Title III and
constituted an unlawful search and seizure under the Fourth
Amendment. 18 U.S.C. s 2511(1) (1994) prohibits any person
from:
(a) intentionally intercept[ing], endeavor[ing] to inter-
cept, or procur[ing] any other person to intercept or
endeavor to intercept, any wire, oral, or electronic com-
munication;
....
(c) intentionally disclos[ing], or endeavor[ing] to dis-
close, to any other person the contents of any wire, oral,
or electronic communication, knowing or having reason
to know that the information was obtained through the
interception of a wire, oral, or electronic communication
in violation of this subsection;
(d) intentionally us[ing], or endeavor[ing] to use, the
contents of any wire, oral, or electronic communication,
knowing or having reason to know that the information
was obtained through interception of a wire, oral, or
electronic communication in violation of this subsection.
Berry raised the following allegations: that Watch Officers
(John Does 1 through 33) intercepted his conversations with
Tamposi in violation of s 2511(1)(a) and unlawfully used and
disclosed the contents of these conversations in making notes
and disclosing the contents of these conversations to the
Office of the Inspector General in violation of s 2511(1)(c) &
(d); that Director Davies and Deputy Director Stephen Mull
of the Operations Center procured the interception of his
telephone conversations in violation of s 2511(1)(a) and used
and disclosed the contents of these conversations in violation
of s 2511(1)(c) & (d); that Funk, Duncan, Shea, Suddarth,
Robert S. Terejesen, an Assistant Inspector General, and
other unnamed members of the Office of the Inspector Gener-
al's investigative team (John Does 34 through 66) conducted
an investigation initiated on the basis of information obtained
from unlawfully monitored conversations in violation of
s 2511(1)(d) and disclosed the contents of these conversations
to numerous persons during the course of their investigation
in violation of s 2511(1)(c); 5 that Director General Holmes
used and disclosed information obtained from the illegally
monitored conversations in her memorandum recommending
that Berry be relieved of his duties in violation of s 2511(1)(c)
& (d); that unnamed State Department employees (John
Does 66 through 100) procured the interception of his tele-
phone conversations in violation of s 2511(1)(a) and used and
disclosed the contents of these conversations in initiating the
Office of the Inspector General's investigation in violation of
s 2511(1)(c) & (d); and that the aforementioned conduct
constituted an unlawful search and seizure in violation of the
Fourth Amendment.6
Berry asked for actual damages, which he computed as
$3,000,000, or statutory damages, whichever was shown to be
greater. See 18 U.S.C. s 2520(c)(2) (1994). The government
representing all defendants moved to dismiss Berry's com-
plaint or, in the alternative, for summary judgment, arguing
that Berry's statutory claims were time barred, that the
interception, use, and disclosure of these calls fell into one or
more statutory exceptions, that defendants were entitled to
qualified immunity from both Berry's statutory and constitu-
tional claims, and that the use or disclosure of illegally
intercepted communications did not constitute a Fourth
Amendment violation. The district court granted defendants'
motion for summary judgment in its entirety without explana-
tion.
II.
We look to the government's arguments first because it
was the moving party on the summary judgment motion.
__________
5 Berry claims, in particular, that Inspector General Funk's
"damaging" and "unsupported" statements at the November 18
press conference constituted a prohibited "use" of illegally inter-
cepted information under the statute.
6 The government draws our attention to the fact that former
Secretary Eagleburger is not a defendant in this case, but a
plaintiff, of course, is not obliged to sue everyone against whom he
may have a claim.
And it is axiomatic that we review the grant de novo (whether
or not the district court expresses its reasons). The govern-
ment claims that Berry's statutory claims are time barred. A
civil action under the wiretap statute "may not be commenced
later than two years after the date upon which the claimant
first has a reasonable opportunity to discover the violation,"
18 U.S.C. s 2520(e) (1994), and Berry filed his complaint on
October 6, 1994, more than two years after the conversations
at issue. It is argued that Berry was obliged to assert in his
complaint that he discovered the monitoring took place with-
in two years of his filing suit. But that is patently incorrect;
the statute of limitations is an affirmative defense and once
the government put it in play Berry submitted a sworn
affidavit that he did not discover--and had no reasonable
opportunity to discover--that his calls had been intercepted
until after October 6, 1992. The government has not rebut-
ted that affidavit, but it alternatively claims that Berry must
have realized--presumably as a matter of law--that he had
been monitored once one of his calls was broadcast through-
out the Operations Center on October 4. But Berry was not
in the Watch Center, and the government has not explained
how or why Berry would have known that his call was
broadcast. To conclude on this record that the government
has met its burden of showing Berry was contemporaneously
on notice of the monitoring is out of the question. Indeed,
the government's claim is so conclusory it is doubtful that it
has even raised a genuine issue as to a material fact--let
alone established that the factual issue was conclusively re-
solved in its favor under Rule 56.
We turn to the meat of the government's case, which is its
claim that the various defendants' activities fell within the
statutory exceptions (defenses) to the wiretap statute.
A. The Business Extension Exception
For a communication to be "intercepted" under the terms
of the statute, its contents must be acquired "through the use
of any electronic, mechanical, or other device." 18 U.S.C.
s 2510(4) (1994). An "electronic, mechanical, or other de-
vice," in turn, is defined as "any device or apparatus which
can be used to intercept a wire ... communication other
than--
(a) any telephone ... instrument, equipment or facility,
or any component thereof, (i) furnished to the subscriber
or user by a provider of wire ... communication service
in the ordinary course of its business and being used by
the subscriber or user in the ordinary course of its
business ...."
18 U.S.C. s 2510(5)(a) (1994) (emphasis added). The govern-
ment argues no calls were "intercepted" within the meaning
of the statute because both requirements of the business
extension exemption were satisfied. The Operations Center
telephone console which contains the monitoring capability
was indisputably furnished by AT&T, a provider of wire
service acting in the ordinary course of business, and was
used by Watch Officers in the ordinary course of their
business when they patched Berry's calls to and from Tampo-
si. The government, in other words, contends that merely
because the intercepted call was a business call, monitoring it
was ipso facto in the ordinary course of business.
Berry disputes that interpretation, which would allow a
business to monitor any particular call whether or not it was
its ordinary business practice and whether or not employees
were on notice that their calls would be monitored. He
argues, to the contrary, that employees always must be on
actual notice, which would be impossible to establish here
because the monitoring took place contrary to the Operation
Center's guidelines, which, as we have noted, provided that
calls should not be monitored unless so requested.
The Eleventh Circuit in Epps v. St. Mary's Hospital, 802
F.2d 412 (11th Cir. 1986), on which the government relies, did
seem to accept the general principle that any call whose
subject is business, if monitored, is necessarily done in the
ordinary course of business even if not authorized by a
company monitoring policy and not known to employees. Id.
at 416-17. We think that is too limited an interpretation of
"ordinary course of business." We are inclined to agree with
the Fourth Circuit that if covert monitoring is to take place it
must itself "be justified by a valid business purpose," Sanders
v. Robert Bosch Corp., 38 F.3d 736, 741 (4th Cir. 1994), or,
perhaps, at least must be shown to be undertaken normally.
Here, there was no reason presented as to the need for secret
monitoring nor was it shown to be routine. Putting aside
whether, and under what circumstances, notice to employees
is required, in this case the government's position is fatally
undermined by the Operation Center guidelines which clearly
indicate the norm of behavior the Watch Officers were to
follow and which must be regarded as the ordinary course of
business for the Center. We think very little of the govern-
ment's contention that the phrase "should not" in the guide-
lines rather than "shall not" suggests that the Officers were
free to disregard the guidelines and therefore normality is
defined by that freedom.
B.The Switchboard Operator and Provider Exception
18 U.S.C. s 2511(2)(a)(i) (1994) provides:
It shall not be unlawful under this chapter for an opera-
tor of a switchboard, or an officer, employee, or agent of
a provider of wire ... communication service, whose
facilities are used in the transmission of a wire ...
communication, to intercept, disclose, or use that commu-
nication in the normal course of his employment while
engaged in any activity which is a necessary incident to
the rendition of his service or to the protection of that
service, except that a provider of wire communication
service to the public shall not utilize service observing or
random monitoring except for mechanical or service
quality control checks.
(Emphasis added). The government claims this exception
covers the actions of the Watch Officer defendants who
actually overheard Berry's conversations and that if their
interception and use was legal, it then follows that the
subsequent use and disclosure by others would not be illegal.
Berry responds that the exception does not apply, because,
again, it cannot possibly be deemed in the normal course of a
Watch Officer's employment to engage in any monitoring
contrary to the guidelines. As we have indicated in the
discussion above, we agree with this proposition, but do not
think the exception applies here regardless of the Watch
Officers' normal practices. A switchboard operator is autho-
rized to overhear (and disclose and use) only that part of a
conversation "which is a necessary incident to the rendition of
his service." We think it rather obvious from the statutory
language that Congress recognized switchboard operators,
when connecting calls, inevitably would overhear a small part
of a call, but the exception permitting them to use that
content is limited only to that moment or so during which the
operator must listen to be sure the call is placed. (It has
been held that the operator also may stay on the line on those
rare occasions when he hears something troubling during that
moment, such as the planning of a murder.) See, e.g., Adams
v. Sumner, 39 F.3d 933 (9th Cir. 1994); United States v.
Axselle, 604 F.2d 1330 (10th Cir. 1979); United States v.
Savage, 564 F.2d 728 (5th Cir. 1977). In short, the switch-
board operator, performing only the switchboard function, is
never authorized simply to monitor calls.
The government, pointing to the last part of the clause--
"except that a provider of wire communication service to the
public shall not utilize service observing or random monitor-
ing except for mechanical or service quality control checks"
(emphasis added)--asserts that the negative implication of
that wording indicates that non-providers can monitor at will,
presumably to their hearts' content. We think that construc-
tion is quite strained and unpersuasive. The clause actually
recognizes two exceptions, one for switchboard operators of
all kinds 7 and the second for employees of public providers of
wire communications service, like inter-exchange or local
carriers. The provider's employees might be obliged to moni-
tor calls considerably beyond the incidental overhearing by a
switchboard operator. The part which pertains to the provid-
__________
7 Berry's brief claimed that the switchboard operator portion of
the exception was itself limited to a service provider, but Berry
prudently abandoned that position at oral argument.
er then is obviously designed to insure the carrier engages in
service observing or random monitoring only to check for
quality control. But there is not even a suggestion in the
clause that a switchboard operator acting as a switchboard
operator can ever engage in any random monitoring--let
alone for other than quality control.
C. Prior Consent Exception
The statute authorizes the interception of wire communica-
tions "where ... one of the parties to the communication has
given prior consent to such interception." 18 U.S.C.
s 2511(2)(c) & (d) (1994). And it has been uniformly held
that implicit consent will satisfy. See Griggs-Ryan v. Smith,
904 F.2d 112, 116-18 (1st Cir. 1990); United States v. Wil-
loughby, 860 F.2d 15, 19 (2d Cir. 1988). Berry claimed that
neither he nor Tamposi ever consented to the monitoring of
their calls. The government argues, however, that they did
know (or should have known) that Watch Officers, as part of
their duties, listened to conversations. They particularly
fault Berry for not alleging that the operators told him they
were dropping off the line after the calls were placed. The
government's argument presumably is that as a matter of law
any reasonable person would assume that an operator stayed
on the line if not told otherwise. We think that proposition is
absurd.
Implied consent, to be sure, "is inferred 'from surrounding
circumstances indicating that the [party] knowingly agreed to
the surveillance.' " Griggs-Ryan, 904 F.2d at 117 (quoting
United States v. Amen, 831 F.2d 373, 378 (2d Cir. 1987)).
The key question in such an inquiry obviously is whether
parties were given sufficient notice. Compare Griggs-Ryan,
904 F.2d at 118 (implied consent where prison inmate was
expressly informed that incoming calls were being moni-
tored), with Campiti v. Walonis, 611 F.2d 387, 393 (1st Cir.
1979) (no implied consent where regulations did not inform
inmates of monitoring). Without actual notice, consent can
only be implied when "[t]he surrounding circumstances [ ]
convincingly show that the party knew about and consented
to the interception." United States v. Lanoue, 71 F.3d 966,
981 (1st Cir. 1995) (emphasis added).
The government may be able to establish that Berry was
aware that the Operations Center had the capacity to monitor
calls. But appellees have introduced no evidence that either
he or Tamposi was told that these specific conversations
would be monitored. Nor do we think that the circumstances
surrounding these conversations remotely suggest that Berry
or Tamposi knew about the interceptions. (Recall that the
Operation Center's guidelines explicitly directed Watch Offi-
cers not to monitor unless the parties to the conversation so
requested.) We certainly cannot conclude that an operator's
failure to inform a party that he is getting off the line
normally raises a suspicion in a reasonable person's mind that
his call is being monitored. The question of implied consent
thus raises a genuine issue of material fact that is not
appropriately decided on summary judgment. See In re
State Police Litig., 888 F. Supp. 1235, 1265 (D.Conn. 1995).
D. Law Enforcement Exception
This defense the government asserts for the benefit of the
defendants in the Office of Inspector General--not those in
the Operations Center. It is argued that as law enforcement
officers the former were entitled to use and disclose the
contents of Berry's conversations even had they been inter-
cepted illegally because they neither participated in nor spon-
sored the interception. 18 U.S.C. s 2517 (1994) in part
provides:
(1) Any investigative or law enforcement officer who,
by any means authorized by this chapter, has obtained
knowledge of the contents of any wire, oral, or electronic
communication, or evidence derived therefrom, may dis-
close such contents to another investigative or law en-
forcement officer to the extent that such disclosure is
appropriate to the proper performance of the official
duties of the officer making or receiving the disclosure.
(2) Any investigative or law enforcement officer who,
by any means authorized by this chapter, has obtained
knowledge of the contents of any wire, oral, or electronic
communication or evidence derived therefrom may use
such contents to the extent such use is appropriate to the
proper performance of his official duties.
(Emphasis added.)
As might be expected, Berry disputes that State Depart-
ment employees working in the Office of Inspector General
are "investigative or law enforcement officers" within the
statute's meaning. The statute defines such officers as those
"empowered by law to conduct investigations of or to make
arrests for offenses enumerated in this chapter," 18 U.S.C.
s 2510(7) (1994) (emphasis added), such as bribery, murder,
and robbery. See 18 U.S.C. s 2516(1) (1994). Admittedly,
these are not the normal targets of Inspector General investi-
gations. But the Foreign Service Act authorizes the Office to
investigate complaints "concerning the possible existence of
an activity constituting a violation of the laws or regulations."
22 U.S.C. s 3929(f)(1) (emphasis added). That language
sweeps so broadly as to compel us to conclude that the
Inspector General defendants are investigative officers within
the meaning of the Act.
The more difficult question, on which there is an apparent
circuit split, is whether it can be said that these defendants,
who clearly used the intercepted conversations, obtained
knowledge of the contents "by any means authorized by this
chapter." The only explicitly authorized means under the
statute are judicially approved wiretaps, see 18 U.S.C. s 2518
(1994), and the scattered statutory exceptions throughout
Title III. Yet, as Berry concedes, and as the Ninth Circuit
has recognized, see Chandler v. United States Army, 125 F.3d
1296, 1300 (9th Cir. 1997), if an investigative or law enforce-
ment officer is given the contents of an interception under the
impression that the interception was legally obtained, then
use or disclosure, too, would be authorized by the statute.
That is so because the prohibition on use or disclosure only
applies to those "knowing or having reason to know that the
information was obtained through the interception of a ...
communication in violation of this subsection." 18 U.S.C.
s 2511(1)(c) & (d). In this case, however, it is undisputed
that the Inspector General's office knew of the circumstances
under which Berry's conversations were intercepted and its
employees were well aware--they had been warned by coun-
sel and the FBI--that the interceptions might be illegal.
The government nevertheless maintains that there is no
limitation on a law enforcement officer's use or disclosure of
illegally intercepted information so long as he was not in-
volved in or did not procure the interception. It refers to
such an officer as having "clean hands." Although the text of
s 2517(1) & (2) does not appear hospitable to the govern-
ment's construction, it relies on a Fifth Circuit case, Forsyth
v. Barr, 19 F.3d 1527 (5th Cir. 1994), in which the court
perceived a distinction between the sections' wording and that
of a companion provision, 18 U.S.C. s 2517(3) (1994), which
uses the phrase "intercepted in accordance with the provi-
sions of this chapter" (emphasis added), rather than "means
authorized by this chapter." Section 2517(3) bars recipients
of illegally intercepted information from testifying as to that
information. The government argues, and the Fifth Circuit
agreed, that Congress in s 2517(3) indicated that it knew how
to explicitly bar information on the ground that it was illegal-
ly intercepted without regard to any other consideration.
Therefore, in s 2517(1) & (2), Congress must have meant
"means authorized by this chapter" to be, in some sense, less
restrictive. Although the government never indicates what
"means authorized by this chapter" affirmatively signifies, it
contends, that whatever it means, it does not ban the use of
information known to be illegally intercepted in a case like
ours. We disagree. The Fifth Circuit in Forsyth relied on a
portion of Title III's legislative history, the Senate Report
which said:
Neither paragraphs (1) nor (2) [of s 2517] are limited to
evidence intercepted in accordance with the provisions of
the proposed chapter, since in certain limited situations
disclosure and use of illegally intercepted communica-
tions would be appropriate to the proper performance of
the officers' duties. For example, such use and disclo-
sure would be necessary in the investigation and prosecu-
tion of an illegal wiretapper himself.
Id. at 1544 (emphasis removed) (quoting S. Rep. No. 90-1097,
reprinted in 1968 U.S.C.C.A.N. 2112, 2188). It appears to us,
however, that in that passage the authors of the Report
understandably contemplated that if an illegal interception
were prosecuted, it would be necessary for officers to "use"
the contents of that interception but still did not wish the
officers to testify about it because the testimony would fur-
ther injure the privacy of the speaker. See also Chandler,
125 F.3d at 1302 ("[T]he illegal interceptor has no standing to
invoke the act as a shield for his own violation."). We simply
do not understand the Fifth Circuit's use of that special
example in the legislative history to justify a broader knowing
use of illegally intercepted conversations against one of the
speakers.8
Nor are we persuaded by the reasoning of the Sixth Circuit
in United States v. Murdock, 63 F.3d 1391 (6th Cir. 1995).
The court seems to have relied only on policy notions rather
than the language of the statute in accepting the govern-
ment's "clean hands" argument. (To assume that an officer
who knowingly uses illegally intercepted conversations has
clean hands is to assume the conclusion.) Instead, we agree
with the Ninth Circuit's decision in Chandler. There, the
court held that Army investigators were not shielded by the
law enforcement exception when they used a tape they had
reason to know was illegally intercepted. Chandler, 125 F.3d
at 1302. The Ninth Circuit, as do we, rejected Murdock
because its interpretation did not square with the statute's
language.
E. Qualified Immunity
The government contends that even if none of the statutory
exceptions are available to any of the defendants, the district
__________
8 The Fifth Circuit's discussion might be thought dicta because
the police in that case were unaware of the illegal nature of the
monitoring when they received the tapes, and for much of their
investigation.
court's order can be affirmed because all defendants are
entitled to qualified immunity. In the context of constitution-
al torts, qualified immunity means that a government official
sued personally is not liable unless his conduct violates "clear-
ly established ... rights of which a reasonable person would
have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The government would have us apply that doctrine to the
statutory claims as well as Berry's constitutional claims. We
have never held, however, that qualified immunity applies
broadly to Title III claims and we do not see why it would.
Qualified immunity is typically invoked in two types of cases:
Bivens 9 actions--constitutional torts--brought against feder-
al officials and claims brought against state officers under 42
U.S.C. s 1983 (1994). But these causes of action were largely
"devised by the Supreme Court without any legislative or
constitutional (in the sense of positive law) guidance."
Crawford-El v. Britton, 93 F.3d 813, 832 (en banc) (Silber-
man, J., concurring) (D.C. Cir. 1996). It is understandable,
then, that the Court also developed the doctrine of qualified
immunity to reduce the burden on public officials. We agree
with Berry, however, that the qualified immunity doctrine
applied to constitutional torts and s 1983 actions has no
application to his statutory claims. That is so because Title
III itself provides a complete defense for "[a] good faith
reliance on ... a court warrant or order, a grand jury
subpoena, a legislative authorization, or a statutory authoriza-
tion." 18 U.S.C. s 2520(d) (1994). (The government has not
asserted this defense for appellees.) When Congress itself
provides for a defense to its own cause of action, it is hardly
open to the federal court to graft common law defenses on top
of those Congress creates. See City of Milwaukee v. Illinois,
451 U.S. 304, 314 (1981) ("[W]hen Congress addresses a
question previously governed by a decision rested on federal
common law the need for such an unusual exercise of lawmak-
ing by federal courts disappears."). This is particularly so
when Congress provides for a good faith defense that is more
limited than the qualified immunity good faith doctrine the
__________
9 Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
judiciary has devised; Congress, it might be said, has "occu-
pied the field."
As the government reminds us, we have before recognized
qualified immunity against both Fourth Amendment and Title
III claims. See Halperin v. Kissinger, 606 F.2d 1192 (D.C.
Cir. 1979); Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir.
1975). But those cases involved a statutory exception, since
repealed, that nothing in Title III "shall limit the constitution-
al power of the President ... to protect national security
information against foreign intelligence activities." 18 U.S.C.
s 2511(3) (1970). Because "Congress made the applicability
of Title III turn on the future course of constitutional law,"
Zweibon, 516 F.2d at 671, we held that in cases where
defendants raised this exception the doctrine of qualified
immunity applied to plaintiff's statutory claims in the same
manner as it applied to plaintiff's constitutional claims. See
Halperin, 606 F.2d at 1209 n.115 (D.C. Cir. 1979). Berry's
statutory claims here, however, do not similarly turn on a
constitutional question.
In sum, we conclude that appellees were not entitled to
summary judgment with respect to Berry's statutory claims.
Certain of Berry's claims do seem weak at this stage. For
example, we have trouble understanding how Director Gener-
al Holmes' consideration and recitation of publicly released
information in recommending that Berry be relieved of his
duties could be considered a prohibited use or disclosure
under Title III. And we rather doubt that those, such as
Shea, who apparently were solely involved with the "untaint-
ed" portion of the investigation can be held liable. Neverthe-
less, without further factual development, we cannot say at
this stage that any of Berry's specific statutory claims are
without merit.
F. Bivens Claims
Berry asserts that the use of an electronic device to
capture a telephone conversation constitutes a "search and
seizure" within the meaning of the Fourth Amendment. See
Katz v. United States, 389 U.S. 347, 353 (1967). Whether the
interception constitutes a constitutional violation, in turn,
"depends on whether the person invoking its protection can
claim a justifiable, a reasonable, or a legitimate expectation of
privacy." Smith v. Maryland, 442 U.S. 735, 740 (1979)
(internal quotations and citations omitted). Assuming Ber-
ry's allegations to be true, the monitoring of his phone
conversations with Tamposi may well have been a violation of
his Fourth Amendment rights. The combination of a lack of
notice that his calls were being monitored with the Operation
Center's guideline, which explicitly warned against listening
to the calls at issue, could well have created a "legitimate
expectation of privacy" on Berry's part. See In re State
Police Litig., 888 F. Supp. at 1256 (recognizing that "the
determination of whether the plaintiffs' expectations of priva-
cy were reasonable depends on proof of the absence of
notice.")
The only defendants, however, who allegedly monitored
Berry's conversations were the Watch Officers. Berry seeks
to hold the other appellees liable for Fourth Amendment
violations on different theories, which they vigorously contest.
While Operations Center Director Davies and Deputy Di-
rector Mull claim that Berry is attempting to impose liability
on them under a theory of respondeat superior, his complaint
actually alleges that they, and others in the Operations
Center, procured the interceptions in question. Berry also
asserts that the appellees from the Office of Inspector Gener-
al and Director General Holmes violated his Fourth Amend-
ment rights by disclosing and using the contents of the
unconstitutionally monitored calls.
Appellees maintain that Berry's allegations do not make
out a Fourth Amendment violation, and alternatively, that
they are entitled to qualified immunity on these claims as
their conduct did not "violate clearly established ... constitu-
tional rights of which a reasonable person would have
known." Harlow, 457 U.S. at 818. We need not at this point,
however, resolve the validity of Berry's Bivens claims. We
rather doubt that appellees' conduct, apart from the procure-
ment and actual interception of the telephone calls, consti-
tutes clearly established Fourth Amendment violations, see
United States v. Calandra, 414 U.S. 338, 354 (1974) ("Ques-
tions based on illegally obtained evidence are only a deriva-
tive use of the product of a past unlawful search and seizure.
They work no new Fourth Amendment wrong."). Still, there
is no difference between the conduct relevant to Berry's
statutory claims and the conduct relevant to his constitutional
claims. Although defendants pleading qualified immunity are
ordinarily entitled to a decision on both questions before the
commencement of discovery, see Mitchell v. Forsyth, 472 U.S.
511, 526 (1985), resolving Berry's constitutional claims is
unnecessary now because dismissing them would not spare
appellees any time or expense.
* * *
The district court inappropriately granted summary judg-
ment before allowing Berry to discover evidence in support of
the allegations set forth in his complaint. We accordingly
vacate the award of summary judgment and remand for
further proceedings.