Ameritech Corp. v. McCann
| Citation | 176 F.Supp.2d 870 |
| Decision Date | 17 December 2001 |
| Docket Number | No. 99-C-675.,99-C-675. |
| Parties | AMERITECH CORPORATION, Plaintiff, v. E. Michael McCANN, in his official capacity as District Attorney of Milwaukee County, Wisconsin, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Stephen J. Liccione, Ameritech, Stephen M. Glynn, Glynn Fitzgerald & Albee, Milwaukee, WI, for Plaintiff.
Mary Woolsey Schlaefer, Donald V. Latorraca, Wisconsin Department of Justice, Office of the Attorney General, Madison, WI, for Defendant.
DECISION AND ORDER
This declaratory judgment action under 28 U.S.C. § 2201 "(Section 2201") comes before the Court on a motion to dismiss by the defendant, E. Michael McCann ("McCann"). The defendant is the District Attorney for Milwaukee County. It is undisputed that his office is a prosecutorial unit of the State of Wisconsin. Wis. Stat. § 978.01(1). The plaintiff, Ameritech Corporation ("Ameritech"), is a telecommunications firm. From time to time, pursuant to subpoena, Ameritech provides the defendant with data concerning incoming telephone calls directed to designated telephone numbers. In this lawsuit, Ameritech seeks a declaration that it is entitled to reimbursement, under 18 U.S.C. § 2706 ("Section 2706"), for the costs associated with providing such information. Subsection (b) of Section 2706 purports to allow the recovery of such expenses in state court. The Court concludes that this declaratory judgment action is barred by Wisconsin's sovereign immunity and that it does not fall within the exception recognized in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Alternatively, the Court is unable to grant declaratory relief in favor of Ameritech because the plaintiff seeks a "right to reimbursement" in state court that would likewise be barred by Wisconsin's sovereign immunity. Accordingly, the Court grants the defendant's motion and dismisses the complaint.
In the course of investigating criminal activity, McCann's office occasionally obtains subpoenas directed to Ameritech for the production of data concerning incoming calls to designated phone numbers. Complaint, ¶ 5. According to Ameritech, compliance with these orders requires the compilation of information in the form of "automated message accounting studies" ("AMA studies") that would not otherwise be prepared by the company. Id.
Ameritech gave notice to the Wisconsin law enforcement community that effective March 1, 1999, it would be seeking reimbursement of its reasonable costs for the production of AMA studies pursuant to Section 2706, which Congress enacted as part of the Electronic Communications Privacy Act of 1986 ("ECPA"). Complaint, ¶ 9. Section 2706 provides, in part, as follows:
(a) Payment. — Except as otherwise provided in subsection (c), a governmental entity obtaining the contents of communications, records, or other information under section 2702, 2703, or 2704 of this title shall pay to the person or entity assembling or providing such information a fee for reimbursement for such costs as are reasonably necessary and which have been directly incurred in searching for, assembling, reproducing or otherwise providing such information. Such reimbursable costs shall include any costs due to necessary diuption of normal operations of any electronic communication service or remote computing service in which such information may be stored.
(b) Amount. — The amount of the fee provided by subsection (a) shall be as mutually agreed by the governmental entity and the person or entity providing the information, or, in the absence of agreement, shall be as determined by the court which issued the order for the production of such information (or the court before which a criminal prosecution relating to such information would be brought, if no court order was issued for production of the information).
18 U.S.C. § 2706.1 McCann, relying upon Wisconsin law, informed Ameritech that his office did not recognize Ameritech's right to be reimbursed and did not intend to pay. Complaint ¶ 11. According to Ameritech, Wisconsin's state law enforcement agencies are the only such agencies in the country to have "resisted payment of statutory reimbursement." Id., ¶ 13.
On June 17, 1999, Ameritech filed this lawsuit against McCann, in his official capacity as District Attorney. The complaint seeks relief under the Declaratory Judgment Act, 28 U.S.C. § 2201. Specifically, Ameritech requests a declaration that "under 18 U.S.C. § 2706(a), it has a right to reimbursement for such costs as are reasonably necessary and which have been directly incurred in searching for, assembling, reproducing, or otherwise producing AMA studies in response to subpoenas and court orders." Complaint, ¶ 16. Ameritech's complaint does not reference the enforcement mechanism set forth in subsection (b) of Section 2706. Furthermore, at least as far as the Court is aware, Ameritech has not pursued its "right to reimbursement" in the court(s) that issued the subpoenas for the AMA studies.
Answering the complaint, McCann asserted various affirmative defenses, including lack of subject matter jurisdiction, failure to state a claim upon which relief could be granted, and defenses based on the Tenth and Eleventh Amendments to the United States Constitution. Subsequently, McCann filed a motion to dismiss.2 The Court, in a written opinion, found that an actual case or controversy existed concerning the meaning of a federal statute. Accordingly, the Court denied McCann's motion to the extent it asserted lack of subject matter jurisdiction. However, the Court postponed a final decision on the motion to dismiss and ordered supplemental briefing on two questions: (1) whether Section 2706 "may constitutionally be applied to a state agency," especially in light of the Tenth Amendment, and (2) whether Section 2706 preempts state law.
In its previous opinion, the Court suggested in a footnote that it would not grant McCann's motion to dismiss on the basis of the Eleventh Amendment. Decision and Order of July 20, 2000, p. 10 n. 3.3 However, the Court's subsequent research, aided by the supplemental briefing of the parties, has persuaded the Court that state sovereign immunity poses insurmountable obstacles to the declaratory relief sought by Ameritech. Not only does sovereign immunity bar this declaratory judgment action, it would also bar any action in state court seeking monetary relief from the defendant. In other words, even if this action could proceed, the Court would be unable to grant the relief sought by Ameritech, i.e., a declaration that the plaintiff has "right to reimbursement" capable of enforcement in state court.
In ruling on a motion under Rule 12(b)(6), the Court accepts as true all of the well-pleaded factual allegations in the plaintiff's complaint and draws all reasonable inferences in favor of the plaintiff. Tobin for Governor v. Illinois State Bd. of Elections, 268 F.3d 517, 521 (7th Cir.2001). Dismissal is proper only if it appears beyond doubt that the plaintiff cannot prove any set of facts that would entitle it to relief. Id. (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
Before discussing the sovereign immunity issues in this case, the Court addresses the scope of the declaratory relief sought by Ameritech. On its face, Ameritech's complaint is confined to subsection (a) of Section 2706, which states in relevant part that a "governmental entity obtaining the contents of communications, records or other information ... shall pay to the person or entity assembling or providing such information a fee for reimbursement for such costs as are reasonably necessary and which have been directly incurred in searching for, assembling, reproducing or otherwise providing such information." 18 U.S.C. § 2706(a). In asking this Court to recognize a statutory "right to reimbursement," however, Ameritech implicitly asks this Court to endorse the enforcement mechanism set forth in subsection (b), which allows a telecommunications company to seek reimbursement in state court. Without the enforcement mechanism in subsection (b), the "right to reimbursement" created by subsection (a) is meaningless. Properly understood, therefore, the complaint in this action seeks a declaration that Ameritech has a right to reimbursement that is capable of enforcement in state court as provided in subsection (b). At a minimum, Ameritech is attempting to obtain a declaratory judgment in federal court that will be res judicata in state court on the question of McCann's liability under subsection (a). See Benning v. Board of Regents, 928 F.2d 775, 778 (7th Cir.1991), discussed infra.
"Although the Constitution establishes a National Government with broad, often plenary authority over matters within its recognized competence, the founding document `specifically recognizes the States as sovereign entities.'" Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (quoting Seminole Tribe v. Florida, 517 U.S. 44, 71, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)). An important attribute of sovereignty is immunity from suit. Thus, under the Eleventh Amendment,4 citizens may not bring suit against a State or any instrumentality thereof without the State's consent. See U.S. Const. amend. XI.; Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 33 L.Ed. 842 (1890). In Hans, supra, the Supreme Court held that sovereign immunity shielded the States from federal suits by their own citizens. Some law review commentators and some courts regard this understanding of sovereign immunity as a "severe restriction on federal jurisdiction" that ought to be "circumvented" whenever possible. Froebel v. Meyer, 13 F.Supp.2d 843, 848-49 (E.D.Wis.1998), aff'd, 217 F.3d...
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Ameritech Corp. v. McCann
...exception to sovereign immunity for suits seeking prospective equitable relief against state officials. See Ameritech Corp. v. McCann, 176 F.Supp.2d 870, 877-80 (E.D.Wis.2001). In the alternative, the Court held that § 2706(b), the ECPA subsection authorizing a suit against a state in the s......
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Ameritech Corp. v. McCann
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