Berry, Steven K. v. Funk, Sherman M.

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.