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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
GINGER HUBER, Plaintiff, v. NORTH CAROLINA STATE UNIVERSITY;
RALPH HARPER, DIRECTOR OF PUBLIC SAFETY, NORTH CAROLINA STATE
UNIVERSITY; JEFF MANN, ASSOCIATE VICE CHANCELLOR FOR BUSINESS,
NORTH CAROLINA STATE UNIVERSITY; GEORGE L. WORSLEY, VICE
CHANCELLOR OF FINANCE & BUSINESS, NORTH CAROLINA STATE
UNIVERSITY; DAVE RAINER, ASSOCIATE VICE CHANCELLOR FOR
ENVIRONMENTAL HEALTH AND PUBLIC SAFETY, NORTH CAROLINA STATE
Filed: 20 April 2004
Appeal and Error_appealability --interlocutory order _sovereign immunity
Issues of immunity affect a substantial right and warrant immediate review.
Telecommunications_wiretapping_federal statute_abrogation of state sovereign
The trial court properly denied a motion to dismiss claims against a state university under
federal wiretapping law where defendant claimed sovereign immunity. Congress acted within its
constitutional powers by holding governmental entities liable and abrogating state sovereign
Telecommunications_wiretapping_state university public safety director_qualified
The trial court properly denied defendant's motion to dismiss claims arising from a state
university official recording personal telephone conversations of an employee where defendant
claimed qualified immunity, but there was a factual dispute as to whether the recordings were
made pursuant to standard procedure.
Telecommunications_wiretapping university employees_public official
immunity_scope of duties
The trial court properly denied a motion to dismiss claims arising from the recording of
personal telephone recordings by a university's public safety director where defendant claimed
public official immunity, but there were issues as to whether the director was acting outside the
scope of this duties.
Appeal by defendants from orders entered 4 October 2002 by
Judge Howard E. Manning, Jr., in Wake County Superior Court. Heard
in the Court of Appeals 12 November 2003.
Moore & Van Allen, PLLC, by Reed J. Hollander and Ellis &
Winters, LLP, by Jonathan D. Sasser, for plaintiff appellee.
Attorney General Roy Cooper, by Special Deputy Attorney
General Thomas J. Ziko, for defendant appellants North
Carolina State University, Jeff Mann, George L. Worsley,
Dave Rainer, and Thomas Younce.
Attorney General Roy Cooper, by Assistants Attorney General
Deborrah L. Newton and William McBlief, for defendant
appellant Ralph Harper.
By this appeal, defendants North Carolina State University
(NCSU), Jeff Mann (Mann), George Worsley (Worsley), Dave
Rainer (Rainer), and Thomas Younce (Younce) (collectively
hereinafter Defendants) contend the trial court erred in denying
their motion to dismiss claims brought by Plaintiff Ginger Huber
(Plaintiff). Specifically, Defendants assert that (I) the
doctrine of sovereign immunity bars claims brought against NCSU and
Younce in his official capacity; (II) the complaint failed to name
Mann, Worsley, and Rainer in their individual capacities; and (III)
the doctrine of qualified immunity bars Plaintiff's claims against
Mann, Worsley and Rainer. In a cross-appeal, defendant Ralph
Harper (Harper) argues the trial court erred in denying his
motion to dismiss, in that (I) Plaintiff's complaint failed to name
Harper in his individual capacity; (II) the doctrine of qualifiedimmunity bars Plaintiff's claims; and (III) public official
immunity bars Plaintiff's claims. After careful consideration, we
affirm the orders of the trial court.
On 3 May 2001, Plaintiff filed a complaint, which was later
amended, against Defendants and Harper in Wake County Superior
Court. According to the pertinent allegations contained in
Plaintiff's amended complaint, Plaintiff began employment on 13
October 1997 as personal assistant to Harper, who was at that time
the director of the NCSU Department of Public Safety (Department
of Public Safety). During her orientation, Plaintiff was never
notified that any telephone lines within the Department of Public
Safety's offices were recorded. Two months later, however, fellow
employees informed Plaintiff of the existence of a Digital Audio
Tape recorder in the Department of Public Safety offices, which,
Plaintiff also learned, Harper used to record the personal
telephone conversations of a certain employee. When Plaintiff
confronted Harper with this information, Harper assured Plaintiff
that her telephone line was not connected to the Digital Audio Tape
system and could not be recorded. Harper explained that he often
used Plaintiff's telephone in the evenings and did not want to
record his own conversations.
In November of 1998, Harper issued a departmental Standard
Operating Procedure entitled Downloading Telephone Calls andRadio Transmissions from the [Digital Audio Tape] Recorder. Under
the Standard Operating Procedure, the only personnel granted access
to the Digital Audio Tape recorder were the computer support
technician and the telecommunications center supervisor. In May of
1999, however, Harper hired Audio Data Systems, Inc. to install
computer software on his office computer to enable him to listen to
the telephone conversations of Department of Public Safety
employees. According to the complaint, Harper did so in order to
prevent Department of Public Safety employees from revealing his
improper activities. Such alleged activities included unauthorized
personal expenditure of departmental funds, misuse of departmental
computer systems, inappropriate personal relationships with female
employees and retaliation against employees who interfered with his
In late 1999 and early 2000, Plaintiff became aware that,
despite Harper's protestations to the contrary, her personal
telephone conversations were being recorded. Harper assured her
that any such recording was in error, and told her that he would
have her telephone line removed from the Digital Audio Tape
recorder. Plaintiff learned in June of 2000 that her line was
still being recorded.
On 18 June 2000, a local newspaper published a front-page
article detailing its investigation of improper conduct by Harper,including his surreptitious recording of telephone conversations of
Department of Public Safety employees. Shortly after publication
of the article, NCSU informed Harper that he should retire by 30
June 2000. Defendant Younce subsequently became the new Director
of Public Safety.
In her amended complaint, Plaintiff set forth claims against
Defendants and Harper for violations of (1) federal wiretapping
law; (2) Plaintiff's right to privacy under the Fourth and
Fourteenth Amendments to the United States Constitution; (3) State
wiretapping law; and (4) Plaintiff's rights under Article I,
sections 19 and 20 of the North Carolina Constitution. Defendants
and Harper filed motions to dismiss Plaintiff's complaint, which
motions the trial court granted in part and denied in part.
Defendants and Harper appealed.
 As a preliminary matter, we note that although the denial
of a motion to dismiss is an interlocutory order, where an appeal
from an interlocutory order raises issues of sovereign immunity, it
affects a substantial right sufficient to warrant immediate
appellate review. Campbell v. Anderson, 156 N.C. App. 371, 374,
576 S.E.2d 726, 728, disc. review denied, 357 N.C. 457, 585 S.E.2d
385 (2003). Defendants and Harper argue, inter alia, that the
doctrines of sovereign and qualified immunity bar Plaintiff'sclaims. We therefore address the merits of those arguments set
forth by Defendants and Harper concerning immunity.
 In general, because NCSU is a State agency, Wood v. N.C.
State Univ., 147 N.C. App. 336, 338, 556 S.E.2d 38, 40 (2001),
disc. review denied, 355 N.C. 292, 561 S.E.2d 887 (2002), NCSU and
Younce in his official capacity are entitled to sovereign immunity
against Plaintiff's federal wiretap claim. See Alden v. Maine, 527
U.S. 706, 712, 144 L. Ed. 2d 636, 652 (1999) (holding that
sovereign immunity shields States from private suits in state
courts pursuant to federal causes of action). However, Congress
may abrogate sovereign immunity of the States when it (1) expresses
an unequivocal intention to abrogate such immunity and (2) acts
pursuant to a valid grant of constitutional authority. Kimel v.
Florida Bd. of Regents, 528 U.S. 62, 73, 145 L. Ed. 2d 522, 535
(2000). We therefore examine the federal wiretapping law to
determine whether it expresses an intent by Congress to abrogate
State sovereign immunity, and, if so, whether Congress acted within
its constitutional authority in doing so.
18 U.S.C. Section 2520(a)
Congress enacted section 2520(a) of Title 18 of the United
States Code as part of the Omnibus Crime Control and Safe Streets
Act in 1968. See Omnibus Crime Control and Safe Streets Act of
1968, Pub. L. No. 90-351, §802, 82 Stat. 223 (1968). Section2520(a) allows an individual whose rights are violated by the
interception and disclosure of wire or oral communications to bring
a private cause of action against any person responsible for such
violations. See 18 U.S.C. § 2520(a) (2000). The term person
under section 2520(a) is defined as 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) (2000).
In 1986, Congress enacted legislation in response to the
growing use of electronic communications. The Electronic
Communications Privacy Act of 1986 criminalized and created civil
liability for intentionally intercepting electronic communications
without a judicial warrant. See Electronic Communications Privacy
Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (1986); Adams v.
City of Battle Creek, 250 F.3d 980, 982 (6th Cir. 2001). In doing
so, the Electronic Communications Privacy Act expanded section
2520(a) to allow for recovery for the interception and disclosure
of electronic communication, in addition to wire and oral
communication. Significantly, the 1986 amendment also added the
words or entity following person, allowing for civil action
against the person or entity which engaged in [the] violation.
However, Congress did not expressly define the term entity.
Finally, section 2520(a) was again amended in 2001 by the USAPatriot Act, which added the phrase other than the United States
following person or entity. See Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107-
56, 115 Stat. 272 (2001). Thus, as currently enacted, section
2520(a) states that any person whose wire, oral, or electronic
communication is intercepted, disclosed, or intentionally used in
violation of this chapter may in a civil action recover from the
person or entity, other than the United States, which engaged in
that violation such relief as may be appropriate. 18 U.S.C.A. §
2520(a) (West Supp. 2003) (emphasis added). The question for this
Court is whether the term entity includes governmental entities,
which would signal that the statute abrogates their sovereign
Plaintiff asserts Congress abrogated State sovereign immunity
by adding the term entity to those liable to suit. Defendants
contend the statutory language does not express an unequivocal
intention by Congress to abrogate such immunity. The majority of
the federal courts addressing the issue have held that a
governmental entity may be liable in a civil suit. See
Organizacion JD LTDA. v. U.S. Dept. of Justice, 18 F.3d 91, 94-95
(2nd Cir. 1994), cert. denied, 512 U.S. 1207, 129 L. Ed. 2d 813
(1994); Adams, 250 F.3d at 985-86; Conner v. Tate, 130 F. Supp. 2d1370, 1374-75 (N.D. Ga. 2001); Dorris v. Absher, 959 F. Supp. 813,
819-20 (M.D. Tenn. 1997), affirmed in part and reversed in part on
other grounds, 179 F.3d 420 (6th Cir. 1999); PBA Local No. 38 v.
Woodbridge Police Dept., 832 F. Supp. 808, 822-23 (D.N.J. 1993).
These courts reasoned that, by adding the word entity to those
against whom a suit could be pursued under section 2520(a),
Congress could have only meant governmental entities, inasmuch as
the term person already included business entities by definition.
The addition of the language evinced a clear intent by Congress to
abrogate the protections of sovereign immunity to the States.
The United States Court of Appeals for the Seventh Circuit has
ruled to the contrary, however. See Abbott v. Village of Winthrop
Harbor, 205 F.3d 976, 980-81 (7th Cir. 2000); see also Amati v.
City of Woodstock, Ill., 829 F. Supp. 998, 1001-03 (N.D. Ill. 1993)
(concluding that governmental entities may not be held liable under
federal wiretapping law); but see Bodunde v. Parizek, 1993 U.S.
Dist. LEXIS 7365, 1993 WL 189941 (N.D.Ill. 1993) (stating that
[s]ection 2520(a) expressly provides that municipal entities may
be held liable for violations of the Federal Wiretapping Act),
affirmed, 108 F.3d 1379 (7th Cir. 1997). The Court in Abbott
concluded that the plain meaning of the term person as defined by
section 2510(6) did not include governmental entities, and
therefore governmental entities were immune from suit. Abbott, 205F.3d at 980-81.
We agree with the United States Courts of Appeals for the
Second and Sixth Circuits that the term entity necessarily means
governmental entities. A contrary decision renders the term
entity superfluous. See Adams, 250 F.3d at 985; Organizacion JD
LTDA., 18 F.3d at 94-95. The definition of person includes
partnership, association, joint stock company, trust or
corporation; i.e., business entities. If the term business
entity is substituted for the word person, then recovery is
possible under section 2520(a) from the business entity or
entity. Unless the term entity denotes governmental entities,
the phrase is redundant and nonsensical. The addition of the
phrase other than the United States to section 2520(a) in 2001
provides further support for this conclusion. If Congress did not
believe section 2520(a) created liability for governmental
entities, there would have been no need to create a special
liability exception for the federal government by adding the phrase
other than the United States. We conclude that, by adding the
term entity to section 2520(a), Congress expressed its clear
intent to create civil liability for governmental entities.
Having satisfied the first part of our inquiry, we must now
determine whether Congress could properly abrogate sovereign
immunity. Section Five of the Fourteenth Amendment grants Congressthe authority to abrogate the States' sovereign immunity. Kimel,
528 U.S. at 80, 145 L. Ed. 2d at 540. Thus, where Congress enacts
legislation pursuant to its authority under Section Five of the
Fourteenth Amendment, such legislation may properly abrogate the
sovereign immunity of the States. Id. Congress cannot abrogate
sovereign immunity pursuant to the Commerce Clause, however.
Seminole Tribe of Florida v. Florida, 517 U.S. 44, 72-73, 134 L.
Ed. 2d 252, 276-77 (1996).
Defendants assert that the federal wiretapping law was drafted
pursuant to authority granted to Congress under the Commerce
Clause. See United States v. Duncan, 598 F.2d 839, 854 (4th Cir.
1979) (holding that Congress had the constitutional authority to
enact 18 U.S.C. § 2511(1)(b)(iv) under the Commerce Clause), cert.
denied, 444 U.S. 871, 62 L. Ed. 2d 96 (1979). The Court in Duncan,
however, expressly declined to consider whether other
constitutional bases would support the federal wiretapping law.
See id. at 854 n.11 (stating that, [s]o holding, we need not
decide whether the other constitutional bases advanced by the
government would suffice). However, in a later decision, the
United States Court of Appeals for the Ninth Circuit, after
examining the legislative history of the federal wiretapping law,
concluded that Congress prohibited the interception of oral
communications pursuant to both the Commerce Clause and theFourteenth Amendment's grant of privacy. See United States v.
Anaya, 779 F.2d 532, 535-36 (9th Cir. 1985) (noting that Congress
was uncertain as to whether all interceptions of oral
communications had an effect on interstate commerce, and therefore
legislated pursuant to its authority under the Fourteenth
Amendment, as well as the Commerce Clause).
We agree that Congress acted pursuant to its power under both
the Commerce Clause and Section Five of the Fourteenth Amendment in
legislating the federal wiretapping law. As such, Congress could
properly abrogate State sovereign immunity by holding governmental
entities liable under section 2520(a). We therefore conclude the
doctrine of sovereign immunity does not shield NCSU and Younce from
Plaintiff's claim against them for violations of federal
wiretapping law. The trial court properly denied the motions by
NCSU and Younce to dismiss on this basis, and we overrule this
assignment of error.
 Defendants and Harper further contend they are entitled to
qualified immunity from Plaintiff's federal and constitutional
claims. Under the doctrine of qualified immunity, government
officials performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights ofwhich a reasonable person would have known. Harlow v. Fitzgerald,
457 U.S. 800, 818, 73 L. Ed. 2d 396, 410 (1982); Corum v.
University of North Carolina, 330 N.C. 761, 772-74, 413 S.E.2d 276,
284, cert. denied, Durham v. Corum, 506 U.S. 985, 121 L. Ed. 2d 431
(1992). In determining whether qualified immunity exists, the
initial inquiry is whether, taken in the light most favorable to
the party asserting the injury, the facts alleged show the
officer's conduct violated a constitutional right. Saucier v.
Katz, 533 U.S. 194, 201, 150 L. Ed. 2d 272, 281 (2001). If the
facts sufficiently allege a constitutional violation, the next,
sequential step is to ask whether the right was clearly
established. Id. The relevant, dispositive inquiry in
determining whether a right is clearly established is whether it
would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted. Id. at 202, 150 L. Ed.
2d at 282.
In her complaint, Plaintiff alleged that Harper intentionally
recorded her personal telephone calls for illicit and personal
purposes and not for any investigative or law enforcement
purposes. The complaint also denied that such recording was
conducted in the ordinary course of business. Plaintiff further
alleged that Defendants encouraged, ratified, or knowingly
acquiesced in the actions of Defendant Harper. These allegationsare sufficient to demonstrate a violation of Plaintiff's
constitutional and statutory right to privacy. We must therefore
determine whether Plaintiff's right to privacy was clearly
established at the time.
Defendants and Harper argue that Harper could not have known
that his actions violated Plaintiff's privacy rights, asserting
that the recordings were made for law enforcement purposes and in
the ordinary course of business. Because the office telephone
lines were recorded for law enforcement purposes, Defendants submit
Plaintiff had no reasonable expectation of privacy in her personal
telephone conversations. Whether the recordings were made pursuant
to standard departmental procedure or otherwise, however, remains
an issue of vital factual dispute between the parties. As such,
the trial court properly denied the motions to dismiss on this
issue. See Campbell, 156 N.C. App. at 375, 576 S.E.2d at 729
(noting that the determination of whether qualified immunity exists
'may require factual determinations respecting disputed aspects of
the officer's conduct. . . . Thus, if there are genuine issues of
historical fact respecting the officer's conduct or its
reasonableness under the circumstances, summary judgment is not
appropriate, and the issue must be reserved for trial') (quoting
Roberts v. Swain, 126 N.C. App. 712, 718, 487 S.E.2d 760, 765,
cert. denied, 347 N.C. 270, 493 S.E.2d 746 (1997)).
Public Official Immunity
 Harper contends he is also entitled to public official
immunity from Plaintiff's claims against him for violations of
sections 15A-287 et seq
. of the North Carolina General Statutes.
The public immunity doctrine protects public officials from
individual liability for negligence in the performance of their
governmental or discretionary duties. Myer v. Walls
, 347 N.C. 97,
112-13, 489 S.E.2d 880, 888-89 (1997). Public official immunity
does not protect a public official from liability based on corrupt
or malicious actions, however. Id
. As was the case with qualified
immunity, outstanding issues of fact remain as to whether Harper
acted outside the scope of his duties, maliciously or with a
corrupt purpose. The trial court therefore properly denied
Harper's motion to dismiss on this issue.
Defendants and Harper present additional arguments involving
issues unrelated to immunity and requiring factual determinations
yet to be resolved by the trial court. As these issues are not
properly before this Court, we do not address them. The orders of
the trial court are hereby,
Judges TIMMONS-GOODSON and ELMORE concur.
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