Debra Seitz v. City of Elgin, Illinois

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1045
D EBRA S EITZ and G REG W ELTER,
Plaintiffs-Appellants,
v.
C ITY OF E LGIN,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 11-cv-4803—Joan Humphrey Lefkow, Judge.
A RGUED JUNE 4, 2013—D ECIDED JUNE 24, 2013
Before F LAUM, S YKES, and H AMILTON, Circuit Judges.
F LAUM, Circuit Judge. Plaintiffs-appellants Debra Seitz,
a real estate professional, and Greg Welter, then an
Elgin police officer, found themselves in trouble after
the City of Elgin (“City”) learned about Greg’s use of
police databases to further the interests of a real estate
management company that he partially owned. The
City learned of Greg’s actions when it received print-outs
of email traffic between Greg and Seitz. The two sued
2 No. 13-1045
Greg’s then-wife Tamara and another individual for
accessing Greg’s email account without authorization
and disclosing the emails to the City. They also sued
the City for its use of the emails. The district court dis-
missed the complaint against the City, finding no basis
for municipal liability under the applicable statute.
We affirm.
I. Background
A. Factual Background
Debra Seitz and Greg Welter are partners who own in
part Wasco Investment Corp., a property management
company.1 Although the partnership totals six, Seitz and
Greg run the company’s day-to-day operations. Greg, at
the time, was also a police officer with the City. To facili-
tate Wasco’s operations, both Seitz and Greg created
Yahoo! email accounts.
In August 2010, a City employee approached Seitz
with copies of emails that she and Greg had exchanged
using the email accounts. The emails showed that Greg
had used the Law Enforcement Agencies Data System
(“LEADS”) to research cars parked in front of Wasco
properties. Illinois, however, limits use of LEADS to
criminal justice purposes. See Ill. Admin. Code tit. 20,
§ 1240.80(a), (d). A few days later, Elgin’s police chief
confronted Greg with the emails and notified him of a
1
Because this appeal arises from an order on a motion
to dismiss, we report the facts as alleged in plaintiffs’ verified
second amended complaint.
No. 13-1045 3
coming misconduct investigation regarding his use of
LEADS.
The City officials had obtained the emails through an
anonymous letter sent to Elgin’s corporation counsel.
Tamara, a fellow Elgin police officer, and Robert Beeter
were allegedly behind that letter. They accessed Greg’s
email account, read through emails stored on that
account, printed the emails at the heart of this litiga-
tion, and conveyed those print-outs to the corporation
counsel under cover of anonymity.
Greg and Seitz sued Tamara and Beeter, alleging viola-
tions of the Federal Wiretap Act (FWA), the Stored Com-
munications Act (SCA), and the Computer Fraud and
Abuse Act, in addition to state law claims. Plaintiffs
also sued Elgin under the FWA.
B. Procedural Background
The City moved to dismiss the count against it on
three grounds. First, it argued that the FWA does
not authorize a cause of action against municipalities.
Second, the City claimed plaintiffs did not adequately
allege a “contemporaneous” interception as required by
the FWA. Finally, the City argued that plaintiffs did
not allege the City knew the emails had been intercepted
as the term is defined in the FWA.
Reaching only the first grounds for dismissal, the
district court concluded that Abbott v. Village of Winthrop
Harbor, 205 F.3d 976 (7th Cir. 2000), controlled: because
the FWA prohibited “persons” from intercepting com-
munications and did not extend its definition of “person”
4 No. 13-1045
to municipalities, the FWA authorized no cause of
action against municipalities. Abbott, 205 F.3d at 980.
The district court granted the motion to dismiss on those
grounds without reaching the sufficiency of plaintiffs’
pleadings.
II. Discussion
We review de novo a district court’s ruling on a motion
to dismiss, accepting as true all factual assertions in the
complaint. Stayart v. Google Inc., 710 F.3d 719, 722 (7th Cir.
2013). The FWA confers a civil cause of action on “any
person whose wire, oral, or electronic communication is
intercepted, disclosed, or intentionally used in violation of
this chapter.” 18 U.S.C. § 2520(a). The aggrieved party may
sue “the person or entity, other than the United States,
which engaged in that violation.” Id. The statute did not
always read this way, however. Initially, it authorized
recovery only against “the person” who violated the FWA.2
Abbott, 205 F.3d at 980. In 1986, however, Congress ex-
tended the cause of action from against any “person” to
against any “person or entity” who committed the viola-
tion. Electronic Communications Privacy Act of 1986, Pub.
L. No. 99-508, § 103, 100 Stat. 1848, 1853-54. It did so
without significant comment in the legislative history. See
2
The prior statute read: “Any person whose wire or oral
communication is intercepted, disclosed, or used in violation
of this chapter shall (1) have a civil cause of action against
any person who intercepts, discloses, or uses or procures
any other person to intercept, disclose, or use such communica-
tions . . . .” 18 U.S.C. § 2520(a) (1982).
No. 13-1045 5
Amati v. City of Woodstock, 829 F. Supp. 998, 1003 (N.D. Ill.
1993). Finally, in 2001, the PATRIOT Act amended the
statute again, yielding the current wording that extends
liability to a “person or entity, other than the United
States.” USA PATRIOT Act of 2001, Pub. L. No. 107-56,
§ 223(a)(1), 115 Stat. 272, 293.
Importantly, the FWA also defines “person.” A person
is “any employee, or agent of the United States or any
State or political subdivision thereof, and any individual,
partnership, association, joint stock company, trust, or
corporation.” 18 U.S.C. § 2510(6). The plain text of that
definition—which has remained unchanged since pas-
sage of the original act in 1968—does not extend to gov-
ernment units. Instead, it reaches only employees or
agents of a government. The Senate Report accompanying
the original bill confirmed this meaning: “The defini-
tion explicitly includes any officer or employee of the
United States or any State or political subdivision of a
State. . . . Only the governmental units themselves are
excluded. . . . Otherwise the definition is intended to be
comprehensive.” Amati, 829 F. Supp. at 1001 (quoting
S. Rep. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N.
2112, 2179)). Thus, as originally composed in 1968, the
FWA created a cause of action only against “persons” and
then excluded municipalities from the definition
of “persons.” It created no cause of action against mu-
nicipalities or any other governmental unit.3
3
Plaintiffs argue for the first time in their reply brief that the
City is vicariously liable even under the original definition of
(continued...)
6 No. 13-1045
Plaintiffs argue, however, that inclusion of the word
“entity” in the 1986 amendments brought municipalities
within the scope of § 2520. Because the definition of
“person” already included “partnership[s], association[s],
joint stock compan[ies], trust[s], or corporation[s],” they
advance, the word “entity” must reach government units.
Plaintiffs are right: The plain meaning of “entity” includes
government units. Black’s Law Dictionary 477 (5th ed. 1979)
(“Entity includes person, estate, trust, governmental
unit.”). And if “entity” referred only to business or non-
profit corporations and associations, the 1986 amend-
3
(...continued)
person. Because that definition includes “any employee, or
agent of . . . any State or political subdivision” and because a
municipality may only act through its employees or agents,
plaintiffs argue an employee’s or agent’s violation of the
FWA renders the municipality vicariously liable. First, plain-
tiffs have waived this argument by raising it only in their
reply brief. See Bracey v. Grondin, 712 F.3d 1012 (7th Cir. 2013).
Second, plaintiffs offer no argument or authority establishing
municipalities as “political subdivisions” of the state under
the FWA (a question we leave open in this opinion). But even
assuming no such deficiencies, this argument nevertheless
falls short. Monell v. Department of Social Services declined to
impose vicarious liability on municipalities under § 1983 when
neither the text nor the legislative history of the statute
offered any support for doing so. 436 U.S. 658, 691 (1978). So
too here. The statutory text and the legislative history from
the original 1968 enactment of the FWA both underscore that
§ 2520 did not impose liability on “governmental units,”
either directly or under a theory of vicarious liability.
No. 13-1045 7
ments would add nothing to the statute because the
definition of “person” already included such organiza-
tions. We must give effect to each word when interpreting
statutes, see Damato v. Hermanson, 153 F.3d 464, 470 (7th
Cir. 1998) (“Statutes must be interpreted, if possible, to
give each word some operative effect.” (quoting Walters
v. Metro. Educ. Enters., 519 U.S. 202, 209 (1997)), and
defining “entity” to reach only organizations already
defined as “persons” would render “entity” superfluous.
The subsequent amendment of § 2520 by the PATRIOT
Act—to add the phrase “other than the United States” as a
modifier to “person or entity”—only underscores that
something in the phrase “person or entity” encompasses
government units. If not, then no need existed for the
PATRIOT Act’s qualifier.
Following this chain of reasoning, other courts have
found municipalities amenable to suit under § 2520. See,
e.g., Adams v. City of Battle Creek, 250 F.3d 980, 985 (6th Cir.
2001) (“The addition of the words ‘entity’ can only mean a
governmental entity because prior to the 1986 amend-
ments, the definition of ‘person’ already included business
entities. In order for the term not to be superfluous, the
term ‘entity’ necessarily means governmental entities.”);
Garza v. Bexar Metro. Water Dist., 639 F. Supp. 2d 770, 774
(W.D. Tex. 2009) (“There would have been no reason for
Congress to carve out an exception for the United States
if governmental entities could not be sued under the
statute.”); Williams v. City of Tulsa, 393 F. Supp. 2d 1124,
1132-33 (N.D. Okla. 2005) (“Congress’ subsequent amend-
ment in 2001 to exclude the United States from entities
that could be liable evidences a Congressional under-
8 No. 13-1045
standing that the 1986 amendment created governmental
liability.”); Conner v. Tate, 130 F. Supp. 2d 1370, 1374-75
(N.D. Ga. 2001); Dorris v. Absher, 959 F. Supp. 813, 820
(M.D. Tenn. 1997), rev’d in part on other grounds, 179 F. 3d
420 (6th Cir. 1999); PBA Local No. 38 v. Woodbridge Police
Dep’t, 832 F. Supp. 808, 823 (D.N.J. 1993); see also
Organizacion JD LTDA v. U.S. Dep’t of Justice, 18 F.3d 91,
94-95 (2d Cir. 1994) (using same analysis to find gov-
ernmental units amenable to suit as a “person or entity”
under § 2707).
Although we agree with plaintiffs that “entity” as used
in § 2520 includes government units, plaintiffs neverthe-
less have no cause of action against the City for the
specific FWA violations alleged here. Section 2520 itself
creates no substantive rights. Rather, it simply provides
a cause of action to vindicate rights identified in other
portions of the FWA, specifically communications “inter-
cepted, disclosed, or intentionally used in violation of
this chapter.” § 2520(a) (emphasis added). In this sense,
§ 2520 is like 42 U.S.C. § 1983. See Levin v. Madigan, 692
F.3d 607, 611 (7th Cir. 2012) (“Section 1983 does not
create substantive rights, but operates as a means for
vindicating federal rights conferred elsewhere.” (citation
omitted)). Thus, we must look to the scope and nature
of the specific substantive right plaintiffs accuse defen-
dants of violating to determine whether plaintiffs may
assert that right against a municipality.
Here, plaintiffs accuse the City of violating § 2511(1)(c)-
(d), which prohibits “any person” from intentionally dis-
closing or using communications intercepted in viola-
No. 13-1045 9
tion of the FWA. 18 U.S.C. § 2511(1)(c)-(d). Thus, § 2511(1)
protects only against actions taken by a “person” as
defined in the statute, which does not include municipali-
ties. See § 2510(6); Abbott, 205 F.3d at 980. Only a “person”
can violate § 2511(1). And because § 2520 creates a cause
of action only for “violation[s] of” the FWA, it necessarily
follows that § 2520 confers a cause of action to enforce
§ 2511(1) only against persons as defined by the statute.4
We therefore reaffirm the conclusion of Abbott: even
though “entity” includes government units, § 2520 pro-
4
Here again, § 1983 provides a helpful analogue. In considering
whether someone may vindicate a particular statutory right
using § 1983, we ask whether the statute confers a right on
“identifiable persons,” see McCready v. White, 417 F.3d 700, 703
(7th Cir. 2005), and whether the putative plaintiff is a member
of that class of identifiable persons, see Planned Parenthood v.
Comm’r of Ind. State Dep’t of Health, 699 F.3d 962, 973 (7th Cir.
2012). Section 2511(1) no doubt confers rights on identifiable
persons, but it limits that group only to individuals aggrieved
by a “person” as defined in § 2510(6). Thus, an individual whose
communications are intercepted or used by someone else—like
plaintiffs’ claim against the City in this case—is not an “identi-
fiable person” who enjoys the statutory right conferred by
§ 2511(1) and made actionable by § 2520(a). In other words,
an individual whose communications are intercepted or used
by someone other than a § 2510(6) person is not an intended
beneficiary of the statute and can have no cause of action
under § 2520. Cf. Marie O. v. Edgar, 131 F.3d 610, 619 (7th
Cir. 1997) (requiring courts to consider whether “plaintiff is
an intended beneficiary of the statute” when deciding whether
statute creates a right enforceable through § 1983).
10 No. 13-1045
vides no cause of action against a municipality for viola-
tions of § 2511(1) because nothing in the 1986 amend-
ments altered the scope of the substantive violation by
expanding it beyond “persons” as defined in the FWA.
Plaintiff’s suggestion that the PATRIOT Act created such
a cause fails for the same reason: Like the 1986 amend-
ments, the PATRIOT Act amendments made no change
to the scope of § 2511(1).5 That provision continues to
apply only to a “person.”
This reading of the statute, however, gives meaning to
each word of § 2520 only if the FWA somewhere else
creates a substantive right against an “entity.” It does.
Section 2511(3)(a)—added by the same 1986 law that
inserted “or entity” into § 2520—prohibits “a person or
entity providing an electronic communication service to
the public [from] intentionally divulg[ing] the contents of
any communication . . . while in transmission on that
service to any person or entity other than an addressee
or intended recipient of such communication.” See
§ 2511(3)(a) (emphasis added); see also Pub. L. No. 99-508,
§ 102, 100 Stat. at 1853. Thus, § 2511(3)(a) creates a sub-
stantive right enforceable against an entity.6 Because the
5
This assumes, of course, that Congress could even create a
cause of action that did not previously exist solely through
language that does nothing more than identify an exception.
We find that assumption questionable.
6
For the reasons above, we believe this use of “entity” includes
government units. Apparently, municipal governments have,
in fact, entered or attempted to enter the telecommunications
(continued...)
No. 13-1045 11
1986 amendments added § 2511(3), they also had to
alter § 2520 to match the “person or entity” language
used in § 2511(3). See Amati, 829 F. Supp. at 1002-03.
Without that change, parties could sue a “person” who
violated § 2511(3)(a) but not an entity even though
§ 2511(3) explicitly referenced both.7 Thus, excluding
governmental units from liability for violations of
§ 2511(1) does not, as Adams suggested, read “entity” out
of the statute.
Adams (and the district courts following it) did not
consider that § 2520 creates no substantive rights and did
not consider whether other parts of the FWA created
6
(...continued)
business. See Nixon v. Mo. Mun. League, 541 U.S. 125 (2004)
(describing Missouri municipalities challenging state law
prohibiting governmental entry into telecom market); City of
Abilene v. FCC, 164 F.3d 49 (5th Cir. 1999) (Texas municipality
challenging state law prohibiting governmental entry into the
telecom market); see also Brandon Doutre & Dan Haugen, Iowa
Has Several Examples of Municipal Telecom Companies, Water-
loo Cedar Falls Courier (June 26, 2005), http://wcfcourier.com/
ne w s/regio na l/iow a-has-several-exa m p les-of-m u nicip al-
telecom -com panies/artic le _ 4 5 d d 4 6 b e-a 0 45-5e21-a5b9-
c16f9e943734.html (last accessed on June 5, 2013).
7
Section 2511(3) harbors other differences from subsection (1)
that further distinguish between the two provisions. Unlike
subsection (1), which metes out criminal punishment on its
violators, subsection (3) imposes no criminal sanction. This
difference further suggests Congress made a deliberate choice
to subject only “persons” to the requirements of § 2511(1) but
to extend § 2511(3) to any “person or entity.”
12 No. 13-1045
substantive rights enforceable against an entity. Those
cases simply ended the inquiry with the conclusion
that governmental units are “entities” under § 2520 and
therefore were amenable to suit for all violations of the
FWA. In doing so, Adams relied heavily on the legislative
history of another, closely-related statute: the Stored
Communications Act, 18 U.S.C. § 2707. The same 1986 law
that added “or entity” to § 2520 also created the SCA in its
entirety. Pub. L. No. 99-508, § 201, 100 Stat. at 1860-68. And
§ 2707, which creates a private cause of action for viola-
tions of the SCA, uses language similar to § 2520: “any . . .
person aggrieved by any violation of this chapter in
which the conduct constituting the violation is engaged
in with a knowing or intentional state of mind may, in
a civil action, recover from the person or entity, other
than the United States, which engaged in that viola-
tion.” § 2707(a). Thus, § 2707 deploys the same “person or
entity” language used in § 2520 (and, like § 2520, the
PATRIOT Act later amended § 2707 to exempt the United
States). The Senate Report accompanying § 2707 makes
clear that “entity” includes governmental units. Under
§ 2707(a), anyone “aggrieved by any violation of this
new chapter may recover from any person or en-
tity—including governmental entities—who knowingly
or intentionally violated this chapter.” Anderson v. City
of Columbus, 374 F. Supp. 2d 1240, 1245 (M.D. Ga. 2005)
(quoting S. Rep. No. 99-541, at 43 (1986), reprinted in 1986
U.S.C.C.A.N. 3355, 3597); accord Adams, 250 F.3d at 985.
But like § 2520, § 2707 does not itself create any substan-
tive rights. Rather, it confers a private cause of action for
violations defined elsewhere in the SCA. And unlike
No. 13-1045 13
§ 2511(1), which creates a substantive right only against a
“person,” the relevant substantive provision of the SCA
speaks in much broader terms: “[W]hoever (1) intentionally
accesses without authorization a facility through which
an electronic communication service is provided; or
(2) intentionally exceeds an authorization to access
that facility; and thereby obtains, alters, or prevents
authorized access to a wire or electronic communication
while it is in electronic storage in such system shall be
punished . . . .” § 2701(a) (emphasis added). Thus, Adams
inappropriately consulted the legislative history of a
statute that does not truly parallel the FWA. The legisla-
tive history suggesting a cause of action against govern-
mental units thus reflects not just the use of “person
or entity” in § 2707—as Adams emphasized—but also the
broader substantive right created by § 2701—which
Adams ignored. Section 2707 and its legislative history
therefore offer little help in determining the scope and
breadth of the substantive right created by § 2511(1). On
that question, the text of the FWA is clear. The substan-
tive rights that plaintiffs allege apply only against a
“person,” which does not include a municipality.
Finally, had Congress hoped to expand liability under
the FWA to include governmental units, it surely could
have done so with more clarity. For example, Congress
could have amended the substantive statute itself, incor-
porating the same “person or entity” language used in
§ 2520 and § 2707 or the “whoever” language found in
§ 2701. It could have amended the definition of “person”
in § 2510(6)—which applies to both the FWA and the
SCA—to include governmental units. Or it could have
deleted the definition of “person” altogether, thereby
14 No. 13-1045
reverting to the general definition of “person” in 1 U.S.C.
§ 1, which encompasses municipalities. See Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 688-89 (1978). At a minimum,
we would expect some mention of this dramatic expan-
sion of municipal liability in the legislative history. See
Abbott, 205 F.3d at 980.
To sum up, the 1986 amendment permits suit against
governmental units through the addition of “entity” to the
statutory text. But it does so only for substantive pro-
visions that identify an “entity” as a potential violator
of that provision. Any conclusion otherwise ignores at
least some part of the statutory text. If “entity” does not
extend to government units, it adds nothing to the stat-
ute. And if we subject governmental units to suit for
violations of § 2511(1), we ignore the statute’s use
of “person” rather than “person or entity.” Our inter-
pretation avoids both of these pitfalls, giving due weight
to the addition of “entity” while remaining faithful to
the plain text of § 2511(1).
III. Conclusion
For these reasons, we A FFIRM the district court’s dis-
missal of plaintiffs’ complaint and confirm the continued
validity of Abbott in this circuit. As this conclusion
disposes of all claims raised against the City, we have no
need to consider the sufficiency of plaintiffs’ complaint
and do not address the City’s other grounds for affirming
the district court’s decision.
6-24-13