Zerilli v. Evening News Ass'n

• Citation: 628 F.2d 217
• Decision Date: 11 June 1980
• Docket Number: No. 79-1298,79-1298
• Parties: , 6 Media L. Rep. 1530 Anthony ZERILLI and Michael Polizzi, Appellants, v. The EVENING NEWS ASSOCIATION, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 217

628 F.2d 217

202 U.S.App.D.C. 217, 6 Media L. Rep. 1530

Anthony ZERILLI and Michael Polizzi, Appellants, v. The EVENING NEWS ASSOCIATION, et al.

No. 79-1298.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 7, 1980.

Decided June 11, 1980.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 78-0766).

Sol Z. Rosen, Washington, D. C., for appellants.

E. Anne McKinsey, Asst. U. S. Atty., Washington, D. C., with whom Carl S. Rauh, U. S. Atty. at the time the brief was filed, John A. Terry and Peter E. George, Asst. U. S. Attys., Washington, D. C., were on the brief, for federal appellees.

Richard L. Cys, Washington, D. C., for appellee The Evening News Association. Stuart F. Pierson, Washington, D. C., also entered an appearance for appellee The Evening News Ass'n.

Before McGOWAN, TAMM and WALD, Circuit Judges.

Opinion for the court filed by Circuit Judge TAMM.

TAMM, Circuit Judge:

In this case, we must decide the merit of statutory and constitutional claims for monetary damages resulting from the disclosure of information originally obtained in violation of the fourth amendment. More specifically, we must determine whether 18 U.S.C. § 2520 (1976), which establishes a civil remedy for the disclosure of information obtained by unlawful surveillance, supports a cause of action when the surveillance occurred before, but the disclosure after, the effective date of the section. In addition, we must decide whether a private newspaper may be held liable under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for conspiring to have federal officials disclose information that had been obtained in violation of the Constitution. We conclude that neither section 2520 nor Bivens imposes liability in the circumstances of this case, and we therefore affirm the district court's dismissal of the complaint.

I. THE FACTUAL BACKGROUND

On May 1, 1978, plaintiffs Anthony Zerilli and Michael Polizzi filed an action in the United States District Court for the District of Columbia against the Attorney General and other, unknown agents of the United States Department of Justice (the federal defendants) and against The Evening News Association, the publisher of The Detroit News (the newspaper). Plaintiffs alleged that the Department of Justice, in the early 1960's, had unlawfully "bugged" the office of the Home Juice Company in Detroit, Michigan, intercepting certain communications between plaintiffs and others. Some ten to fifteen years later, in 1976, agents of the Department allegedly disclosed the contents of these communications to the newspaper, which then published the material in a series of articles entitled "Organized Crime in Detroit."

Plaintiffs asserted three legal theories in seeking compensatory and punitive damages. First, they charged the defendants with violating 18 U.S.C. § 2511(1) (c) (1976), which prohibits certain disclosures of intercepted communications, and claimed that 18 U.S.C. § 2520 therefore entitled them to a civil recovery. Second, plaintiffs asserted a right to recovery against the federal defendants based directly on the fourth amendment. Finally, plaintiffs contended that they were entitled to relief against the newspaper on the ground that it had conspired with the federal defendants to violate plaintiffs' fourth amendment rights. ¹ The federal defendants and the newspaper each moved to dismiss the complaint for "failure to state a claim upon which relief can be granted," Fed.R.Civ.P. 12(b)(6). Judge Oliver Gasch granted the motions and dismissed the complaint. This appeal followed.

II. PLAINTIFFS' CLAIM UNDER 18 U.S.C. § 2520

In 1968, as title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197, Congress enacted chapter 119 of title 18 of the United States Code, which addresses a variety of issues concerning wiretapping and other interceptions of wire and oral communications. See 18 U.S.C. §§ 2510-2520 (1976) (amended in part 1978). Chapter 119 "has as its dual purpose (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized." S.Rep. No. 1097, 90th Cong., 2d Sess. 66, reprinted in (1968) U.S.Code Cong. & Admin.News, pp. 2112, 2153. As the Supreme Court has observed, "The Act represents a comprehensive attempt by Congress to promote more effective control of crime while protecting the privacy of individual thought and expression." United States v. United States District Court, 407 U.S. 297, 302, 92 S.Ct. 2125, 2129, 32 L.Ed.2d 752 (1972).

Chapter 119 authorizes the interception of wire and oral communications only under specified conditions and only upon prior judicial approval. See 18 U.S.C. §§ 2516, 2518(1)-(8) (1976) (amended 1978). Interceptions not conforming to these requirements generally are unlawful, see id. § 2511, and the unlawfully obtained information may not be used as evidence in a legal proceeding, see id. § 2515 (1976); see also id. § 2518(9)-(10) (amended 1978). Moreover, the statute makes it a criminal offense to engage in an unlawful interception or to disclose or use information that was obtained by such means. See id. § 2511(1) (1976). Section 2520 of chapter 119, the section relied upon by plaintiffs here, provides a civil cause of action for the victim of an unlawful interception against any person who intercepts, discloses, or uses the plaintiff's communications in violation of the chapter. Id. § 2520. A successful claimant may recover actual and punitive damages, as well as attorneys' fees. Id. ² Section 2520, along with the rest of chapter 119, went into effect on June 19, 1968. In the case before us, the alleged disclosures first by the federal defendants, and then by the newspaper occurred in 1976, after chapter 119 was in force. The interception that allegedly produced the disclosed information, on the other hand, occurred in the early 1960's, well before the statute's effective date. Thus, the issue we must resolve is whether section 2520 provides a remedy for the post-enactment disclosure of information that was unlawfully obtained through a pre-enactment interception. ³

The starting point in construing any statute is the language of the statute itself, see, e. g., Lewis v. United States, 445 U.S. 55, 60, 100 S.Ct. 915, 918, 63 L.Ed.2d 198 (1980), and if that language is clear, the judicial inquiry ends, for a court must give effect to a statute's unambiguous meaning. As the Supreme Court observed in Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1917), "It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed . . . . Where the language is plain and admits of no more than one meaning the duty of interpretation does not arise and the rules which are to aid doubtful meanings need no discussion." Id. at 485, 37 S.Ct. at 194. See also United States v. Davis, 617 F.2d 677 at 682 (D.C.Cir. 1979).

Enforcing the literal language of Congress is especially important in the present case. Chapter 119 represents a "comprehensive scheme" for the regulation of wiretapping and other interceptions of wire and oral communications, see Gelbard v. United States, 408 U.S. 41, 46, 92 S.Ct. 2357, 2360, 33 L.Ed.2d 179 (1972), a scheme that was

drafted . . . with exacting precision. As its principal sponsor, Senator McClellan, put it:

"(A) bill as controversial as this . . . requires close attention to the dotting of every 'i' and the crossing of every 't' . . . ." (114 Cong.Rec.) 14751 ((1968)).

Under these circumstances, the exact words of the statute provide the surest guide to determining Congress' intent, and we would do well to confine ourselves to that area.

United States v. Donovan, 429 U.S. 413, 441, 97 S.Ct. 658, 675, 50 L.Ed.2d 652 (1977) (Burger, C. J., concurring in part and concurring in the judgment).

Section 2520 provides a remedy when a person's communications are "intercepted, disclosed, or used in violation of this chapter." 18 U.S.C. § 2520 (1976) (emphasis added). To identify such a violation in the present case, plaintiffs contend that defendants violated section 2511(1)(c) after the effective date of chapter 119 by making unlawful disclosures of information. A disclosure is unlawful under section 2511(1)(c), however, only if the information disclosed was "obtained through the interception of a wire or oral communication in violation of this subsection." Id. § 2511(1)(c) (emphasis added). Thus, for a disclosure to be unlawful under chapter 119, the information disclosed must have been obtained through an interception that itself violated the provisions of the chapter. Obviously, the interception in the present case could not have violated chapter 119, for its provisions had not yet been adopted at the time the interception occurred. ⁴ Because the interception did not violate the chapter, the subsequent disclosure also fell outside its provisions; therefore, no liability could arise under section 2520. See Meredith v. Gavin, 446 F.2d 794, 799 (8th Cir. 1971) (denying recovery under section 2520) ("Since . . . the interception . . . was not obtained in violation of the Act, its subsequent use and disclosure was not a violation of the Act."). See also Smith v. Cincinnati Post & Times-Star, 475 F.2d 740, 741 (6th Cir. 1973) (per curiam). ⁵

Contrary to plaintiffs' contention, ⁶ our adherence to the plain meaning of the statute will not create a "carte blanche" for the liability-free disclosure of communications that were unlawfully intercepted prior to the effective date of chapter 119. In appropriate cases, other remedies for such disclosures may exist. For example, if all the elements can be shown, a common-law tort...