Boehner v. McDermott

• Decision Date: 20 August 2004
• Docket Number: No. 98-0594(TFH).,98-0594(TFH).
• Citation: 332 F.Supp.2d 149
• Parties: John A. BOEHNER, Plaintiff, v. James A. McDERMOTT, Defendant.
• Court: U.S. District Court — District of Columbia

332 F.Supp.2d 149

John A. BOEHNER, Plaintiff, v. James A. McDERMOTT, Defendant.

No. 98-0594(TFH).

United States District Court, District of Columbia.

August 20, 2004.

Louis K. Fisher, Michael Carvin, Jones, Day, Reavis & Pogue, Washington, DC, for Plaintiff.

Edwin John U., Eugene Frank Assaf, Jr., Frank Cicero, Jr., Kirland & Ellis, Chicago, IL, for Defendant.

MEMORANDUM OPINION

THOMAS F. HOGAN, Chief Judge.

Pending before the Court are Plaintiff and Defendant's cross motions for summary judgment. Because both motions relate to the same set of facts and issues the Court will rule on both motions simultaneously. Upon careful review of both motions, oppositions, replies thereto, and the entire record herein, the Court will grant Defendant's motion in part and deny the motion in part, and the Court will grant in part and deny in part Plaintiff's motion.¹

I. BACKGROUND

This case results from a disclosure made by Defendant James McDermott to members of the press concerning an illegal intercept of a conference call between Plaintiff John Boehner and several House Republican leaders. McDermott is a Democratic member of the House of Representatives, representing the Seventh District of Washington, and Boehner is a Republican member of the House of Representatives, representing the Eighth District of Ohio. The subject of the conversation was a discussion of potential responses to the House Ethics Committee Probe of then-House Speaker Newt Gingrich. Boehner Dep. at 15-16.

Boehner participated in the conference call on a cellular phone inside his car while parked at a Waffle House restaurant in northern Florida. Boehner Dep. at 9. The conference call was electronically intercepted by a Florida couple, Alice and John Martin, using a radio scanner. Def.'s Ans. ¶ 8. The Martins recorded the call and then delivered that tape to the Gainesville, Florida office of Democratic Representative Karen Thurman, who at the time represented the Fifth District of Florida. See id. ¶ 10. Representative Thurman advised the Martins to deliver the tape to Defendant, who was then a ranking Democratic member of the House Committee on Standards of Official Conduct ("House Ethics Committee"). See Cover letter of 1/8/1997 that the Martins presented to Defendant along with the tape (hereinafter "Cover Letter") (found at Pl.'s Statement of Undisputed Facts ("SUF") Ex. B-8).

On January 8, 1997, the Martins personally delivered a copy of the tape enclosed in an envelope to McDermott in the anteroom of the House Ethics Committee (the "Committee") in Washington, D.C. McDermott Dep. at 157-58. Along with the tape was a letter explaining that the tape contained "a conference call heard over a scanner," and that "[the Martins] understand that [the Martins] will be granted immunity." Pl.'s SUF Ex. B-8 (Cover Letter). Before this encounter, McDermott claims to have had no knowledge of either the Martins or the tape. See McDermott Decl. ¶ 3 (found at Def.'s Opp'n Ex. F). McDermott later that evening returned to his office, opened the envelope, and listened to the tape. McDermott Dep. at 162. He maintains, however, that he has no recollection of seeing the accompanying letter at any time prior to his disclosure. Id. at 150.

That evening and the following day, McDermott disclosed the tape to the New York Times and the Atlanta Journal-Constitution. Id. at 174-75. The New York Times published a story regarding the contents of the disclosed tape on the front page of its January 10, 1997 edition. Adam Clymer, Gingrich is Heard Urging Tactics in Ethics Case, N.Y. Times, Jan. 10, 1997, at A1 (found at Pl.'s SUF Ex. B-2). The article references only an anonymous Congressional source, but McDermott acknowledges that he was the source. McDermott Dep. at 220-21. At a press conference on January 13, 1997, the Martins declared that they were responsible for intercepting Plaintiff's conversation and identified McDermott as the person to whom they delivered a copy of the conversation. Def.'s Ans. ¶ 24. Only after the Martins' press conference did McDermott deliver copies of the conversation to other members of the House Ethics Committee. Id. ¶ 25. McDermott resigned from the committee the same day. Id.

II. PROCEDURAL HISTORY

Plaintiff filed a complaint on March 9, 1998 alleging that Defendant knowingly disclosed an unlawfully intercepted communication in violation of federal wiretapping statute, 18 U.S.C. § 2511(1)(c)², and a Florida wiretapping statute, Fla. Stat. § 934.03(1)(c).³ Plaintiff seeks recovery for damages under 18 U.S.C. § 2520 and Fla. Stat. § 934.10 that authorize private actions to recover for violations of the federal and state wiretapping statutes, respectively. This Court granted Defendant's motion to dismiss, finding that the First Amendment protected the disclosure of lawfully obtained information. Boehner v. McDermott, No. CIV. 98-594, 1998 WL 436897, ^*7 (D.D.C. July 28, 1998), rev'd, 191 F.3d 463 (D.C.Cir.1999). The United States Court of Appeals for the District of Columbia reversed this Court by distinguishing McDermott's conduct from the controlling precedent in Florida Star v. B.J.F., 491 U.S. 524, 533, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989) ("If a newspaper lawfully obtains truthful information about a matter of public significance, then [the government] may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.") (quoting Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979)). See Boehner v. McDermott, 191 F.3d 463, 470-76 (D.C.Cir.1999), vacated by 532 U.S. 1050, 121 S.Ct. 2190, 149 L.Ed.2d 1022 (2001). The Court of Appeals found that the federal and state wiretapping statutes were not unconstitutional as applied to McDermott. 191 F.3d at 478. The Supreme Court granted certiorari, vacated the judgment of the Court of Appeals, and remanded the case in light of its decision in Bartnicki v. Vopper, 532 U.S. 514, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001). McDermott v. Boehner, 532 U.S. 1050, 121 S.Ct. 2190, 149 L.Ed.2d 1022 (2001). Finally, on remand from the Supreme Court, the Court of Appeals reversed this Court's dismissal of the case and remanded, stating "[w]e also conclude that we would benefit from having the district court pass upon the arguments that have taken on new-found importance after Bartnicki." Boehner v. McDermott, 22 Fed.Appx. 16, 2001 WL 1699420 (D.C.Cir.2001).

Plaintiff filed the instant motion for summary judgment on Dec. 16, 2002. In that motion, Plaintiff claims that Defendant's knowledge that the tape was illegally intercepted and his subsequent disclosure of the tape to members of the press "triggers liability for both statutory and punitive damages." Pl.'s Mot. at 5. Defendant also filed a motion for summary judgment on Dec. 16, 2002, asserting that because the facts in the instant case are indistinguishable from Bartnicki, his disclosure was protected by the First Amendment. Def.'s Mot. at 12-13. Defendant also claims that the Florida statute does not apply to a disclosure that occurred entirely outside of Florida. Id. at 12.

III. MOTION FOR SUMMARY JUDGMENT

Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (stating that a court may enter summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."). A material fact is one that "might affect the outcome of the suit under the governing law...." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). There is a genuine issue of material fact "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In reviewing a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inference are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505. However, "[o]nly disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment." Id. at 248, 106 S.Ct. 2505. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge...." Id. at 255, 106 S.Ct. 2505. Therefore, a trial court should use caution when granting summary judgment "where there is reason to believe that the better course would be to proceed to a full trial." Id.

Building on Anderson, our Court of Appeals stated that

[i]n deciding whether there is a genuine issue of fact before it, the court must assume the truth of all statements proffered by the party opposing summary judgment — subject to an exception [that some statements are so conclusory as to come within an exception to that rule]. This is the standard even when the court entertains grave doubts about such a statement; like the weighing of evidence generally, the task of determining the credibility of a witness is the exclusive domain of the finder of fact.

Greene v. Dalton, 164 F.3d 671, 674 (D.C.Cir.1999) (citations omitted).

IV. DISCUSSION

A. Applicability of the Florida Statute

Florida Statute § 934.03 provides language substantively identical to 18 U.S.C. § 2511, under which Plaintiff also seeks recovery, as well as to the analogous D.C.Code § 23-542. The Court, however, must assess the applicability of Florida law to the facts of this case, most of which occurred in the District of Columbia.

The locations of the events of this case are not in dispute. Plaintiff participated in a cell phone...