                                                                   [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                     FOR THE ELEVENTH CIRCUIT           U.S. COURT OF APPEALS
                     ___________________________          ELEVENTH CIRCUIT
                                                               MAY 5 2000
                                                           THOMAS K. KAHN
                                 No. 99-10813                   CLERK
                         ___________________________

                     D.C. Docket No. 98-00038-CV-6


VICKEY HORTON TAPLEY,
                                                     Plaintiff - Appellee,

                                   versus

DARRELL COLLINS,
WILLIAM TORRANCE,
RONNIE DIXON, and
THE CITY OF VIDALIA, GEORGIA
                                                     Defendants - Appellants.

                     ____________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                    ____________________________

                                (May 5, 2000)


Before CARNES, BARKETT and MARCUS, Circuit Judges.


CARNES, Circuit Judge:
        Vickey Tapley filed a lawsuit in federal district court against the City of

Vidalia, and city officials Darrell Collins, William Torrance, and Ronnie Dixon

contending that they had violated various state and federal rights of hers, including

her rights under the Federal Electronics Communications Privacy Act, 18 U.S.C.

§§ 2510-2522 (“the Federal Wiretap Act”). Tapley, a Georgia Bureau of

Investigation (“GBI”) agent, alleged that Collins, the Chief of Police, listened to

her private cordless telephone conversations without her consent or knowledge,

and together with Torrance, the City Manager, relayed the content of those

conversations to Dixon, the Mayor, and to Greg Owens, Tapley’s GBI supervisor.1

        Collins, Torrance, and Dixon moved for summary judgment on the Federal

Wiretap Act claims on qualified immunity grounds.2 The district court denied

their motion for summary judgment, holding that qualified immunity is not a

defense to Federal Wiretap Act claims. Because of that holding, the district court


    1
     Tapley filed a separate lawsuit against Owens, and he is not a party to this appeal or to the
lawsuit from which it stems.
   2
    The complaint is utterly silent on whether the individual defendants are sued in their individual
capacities, but from the beginning the parties and the district court have treated this case as though
they are. Otherwise, the qualified immunity contentions, arguments, and rulings, as well as this
appeal, have no basis. See Hill v. Dekalb Reg’l Youth Detention Ctr., 40 F.3d 1176, 1184 n.16
(11th Cir. 1994) (“It is well-settled that qualified immunity only protects public officials from
lawsuits brought against them in their individual capacity.”)(internal quotation marks and citations
omitted). Under these circumstances, we will treat the case as one in which the individual defendants
are being sued in their individual capacities. See Jackson v. Georgia Dep’t of Transp., 16 F.3d 1573,
1575 (11th Cir. 1994) (“When it is not clear in which capacity the defendants are sued, the course
of proceedings typically indicates the nature of the liability sought to be imposed.”).

                                                  2
did not decide whether they would be entitled to qualified immunity if it is an

available defense to such claims. Those three individual defendants appeal the

denial of summary judgment, arguing that the district court erred in determining

that the defense of qualified immunity is not available to public officials faced with

Federal Wiretap Act claims.3 For the reasons that follow, we agree with the

defendants, reverse the district court’s holding that qualified immunity is

inapplicable to such claims, and remand for that court to determine whether these

individual defendants are entitled to summary judgment on the basis of qualified

immunity.




                                     I. BACKGROUND



  3
     The City of Vidalia also attempts to appeal the district court’s denial of its motion for summary
judgment, which was based on the City’s contention that a municipality cannot be held civilly liable
for violations of the Federal Wiretap Act by its officials. We lack jurisdiction to interlocutorily
review any ruling relating to the City of Vidalia. See Swint v. Chambers County Comm’n, 514 U.S.
35, 51, 115 S. Ct. 1203, 1206 (1995) (“[N]or is there ‘pendent party’ appellate authority to take up
the commission’s case.”); Pickens v. Hollowell, 59 F.3d 1203, 1208 (11th Cir. 1995) (“[W]e have
no pendent party appellate jurisdiction.”). Accordingly, we will dismiss the City’s appeal.

                                                  3
                                             A. Facts4

       During the evening of November 3, 1997, Darrell Collins, the Chief of

Police for the City of Vidalia, was at home listening to his personal scanner, a

device which intercepts radio transmissions on several bands of frequency. Collins

heard his name come over the scanner, so he pushed a key to lock in the frequency.

He soon realized he had intercepted a telephone conversation between Vickey

Tapley, a GBI agent who lived down the street from him, and her former GBI

supervisor. That evening Collins listened to Tapley’s conversations in three

different telephone calls, and he made typed notes of what he heard in all three.

       Later that evening, Chief Collins telephoned his supervisor, City Manager

William Torrance, and told him about intercepting the conversations and some of

what had been said during them. The next morning, Collins and Torrance met to

discuss the intercepted conversations. Together, they called Greg Owen, Tapley’s

GBI supervisor at the time, to tell him the nature of these conversations. In

response, Owen went to City Hall and met with Collins, Torrence and Mayor

Ronnie Dixon. During their meeting, Collins and Torrance both told Owen and

Dixon details of Tapley’s telephone conversations which Collins had intercepted.


   4
     “In considering the denial of a defendant's summary judgment motion, we are required to view
the facts, which are drawn from the pleadings, affidavits, and depositions, in the light most favorable
to the plaintiff[].” Swint v. City of Wadley, 51 F.3d 988, 992 (11th Cir. 1995).

                                                  4
Upon hearing the nature of the conversations, Owen asked for and was given a

copy of the typed notes Collins had made of the conversations. Soon after, Owen

confronted Tapley about those telephone conversations, and he reassigned her to a

different territory so that she no longer had responsibility for the City of Vidalia.

                                 B. Procedural History

        After learning that her telephone conversations had been intercepted and

discussed, Tapley filed suit in federal district court against Collins, Torrance,

Dixon and the City of Vidalia, Georgia. Her complaint contained claims alleging:

(1) violation of the Federal Wiretap Act; (2) violation of O.C.G.A. § 16-11-62, the

“Georgia Wiretap Act;” 5 (3) invasion of privacy; (4) intentional infliction of

emotional harm; and (5) violation of her civil rights under color of state law (42

U.S.C. § 1983). Tapley and the defendants filed cross motions for summary

judgment on liability. In their motions, the individual defendants asserted qualified

immunity as a defense to the Federal Wiretap claim and the § 1983 claim.

        The district court granted summary judgment to Tapley against all of the

defendants as to liability under the Georgia Wiretap Act and the Federal Wiretap

Act claims. In the process, the court denied the individual defendants’ motion for

summary judgment based upon the defense of qualified immunity, concluding that

    5
      Although Tapley’s complaint did not mention the Georgia Wiretap Act, the district court
interpreted it as containing a claim under that act.

                                             5
defense was unavailable to a claim under the Federal Wiretap Act. The court also

denied the defendants’ motion for summary judgment on Tapley’s state law claim

of intentional infliction of emotional distress. It deferred a ruling on the summary

judgment motions insofar as the § 1983 claim was concerned.

         After the defendants moved for reconsideration, the district court entered an

order granting summary judgment to the defendants on the basis of qualified

immunity on the § 1983 claim. The district court’s other rulings, including the one

that qualified immunity is not available as a defense to Federal Wiretap Act claims,

stood.

                                      II. DISCUSSION

         The Federal Wiretap Act provides that a person who “intentionally

intercepts, endeavors to intercept, or procures any other person to intercept or

endeavor to intercept, any wire, oral, or electronic communication” is subject to

criminal sanctions and civil liability. 18 U.S. C. § 2511(1)(a). The Act also

subjects to civil and criminal liability anyone who discloses the contents of an

illegally intercepted communication, see 18 U.S.C. § 2511(1)(c), or uses the

contents of a intercepted communication, knowing or having reason to know that it

was illegally obtained, see 18 U.S.C. § 2511(1)(d).6 The Act explicitly provides a

   6
       The Federal Wiretap Act provides in relevant part as follows:


                                                6
complete defense to any civil or criminal action brought under the statute where

the defendant relied in good faith upon certain authorities enumerated in the

statute. See 18 U.S.C. § 2520(d). 7



        (1) Except as otherwise specifically provided in this chapter any person who –

        (a) intentionally intercepts, endeavors to intercept, or procures any other person to
        intercept or endeavor to intercept, any wire, oral or electronic communication;
        (b) intentionally uses, endeavors to use, or procures any other person to use or
        endeavor to use any electronic, mechanical, or other device to intercept any oral
        communication . . .
        (c) intentionally discloses, or endeavors to disclose, to any other person the contents
        of any wire, oral, or electronic communication, knowing or having reason to know
        that the information was obtained through the interception of a wire, oral, or
        electronic communication in violation of this subsection;
        (d) intentionally uses, or endeavors to use, the contents of any wire, oral, or
        electronic communication, knowing or having reason to know that the information
        was obtained through the interception of a wire, oral, or electronic communication
        in violation of this subsection;
        ...
        shall be punished as provided in subsection (4) or shall be subject to suit as provided
         in subsection (5).

        18 U.S.C. § 2511(1).
   7
       That part of the Act states:

        (d) Defense. – A good faith reliance on –

        (1) a court warrant or order, a grand jury subpoena, a legislative authorization, or a
        statutory authorization;
        (2) a request of an investigative or law enforcement officer under section 2518(7) of
        this title; or
        (3) a good faith determination that section 2511(3) of this title permitted the conduct
        complained of;

        is a complete defense against any civil or criminal action brought under this chapter
        or any other law.

        18 U.S.C. § 2520(d).

                                                  7
      The existence of that good faith defense in the statute is the main reason the

district court concluded that qualified immunity was unavailable to defendants

sued for violating the Federal Wiretap Act. The district court’s factual premise

about the Act is certainly correct – the Act does contain an explicit, specific

defense of good faith – but we disagree with the court’s legal premise, which is

that existence of a good faith defense in a statute rules out the defense of qualified

immunity.

      Qualified immunity is an immunity from suit that extends to government

officials performing discretionary functions. See Harlow v. Fitzgerald, 457 U.S.

800, 817-18, 102 S. Ct. 2727, 2738 (1982). Under this common-law defense,

public officials sued in their individual capacities are entitled to qualified immunity

when their actions do not violate “clearly established statutory or constitutional

rights.” Id., at 818, 102 S. Ct. at 2738 (emphasis added); Davis v. Scherer, 468

U.S. 183, 194 n.12, 104 S. Ct. 3012, 3019 n.12 (1984) (“[O]fficials sued for

violations of rights conferred by a statute or regulation, like officials sued for

violation of constitutional rights, do not forfeit their immunity by violating some

other statute or regulation.”).

      The Supreme Court has placed few restrictions on the availability of the

qualified immunity defense. See, e.g., Malley v. Briggs, 475 U.S. 335, 341, 106 S.


                                           8
Ct. 1092, 1096 (1986) (explaining that the qualified immunity defense protects “all

but the plainly incompetent or those who knowingly violate the law”). Of course,

Congress creates and controls statutory causes of action and has the power to

abrogate defenses, including the common law defense of qualified immunity, if it

wishes to do so. But the Supreme Court has said that the defense of qualified

immunity is so well established, that if Congress wishes to abrogate it, Congress

should specifically say so. See Buckley v. Fitzsimmons, 509 U.S. 259, 268, 113

S. Ct. 2606, 2613 (1993) ("Certain immunities were so well established in 1871,

when § 1983 was enacted, that we presume that Congress would have specifically

so provided had it wished to abolish them.") (citations and internal quotation marks

omitted); Owen v. City of Independence, 445 U.S. 622, 637, 100 S. Ct. 1398, 1408

(1980) (“Congress would have specifically so provided had it wished to abolish the

doctrine.” (quoting Pierson v. Ray, 386 U.S. 547, 555, 87 S. Ct. 1213, 1218

(1967))).

      In Gonzalez v. Lee County Hous. Auth., 161 F.3d 1290 (11th Cir. 1998), we

decided whether Congress had abrogated the qualified immunity defense in the

Fair Housing Act. That act, like the Federal Wiretap Act, contains an explicit good




                                         9
faith defense.8 That similarity between the acts makes our Gonzalez decision

particularly instructive on this issue.

           In Gonzalez the plaintiff argued that the existence of the good faith defenses

in the Fair Housing Act meant that Congress intended to abrogate the defense of

qualified immunity to claims under that act. We unequivocally rejected that

argument and held that qualified immunity is a defense to the Fair Housing Act,

despite the inclusion of a good faith statutory defense. We said that “[n]either the

text nor the legislative history of section 3617 [of the Fair Housing Act] indicates

that Congress intended to abrogate the qualified immunity to which executive-

branch officials were entitled under common law.” Id. at 1299. We explained that

our conclusion to that effect was consistent with decisions of our Court and other

courts holding that public officials are entitled to qualified immunity when sued

under a federal statute. See id. at 1300 & n.34. We cited eleven federal appeals

court decisions holding that qualified immunity is available as a defense to claims

arising under eight different federal statutes.9 Gonzalez forecloses Tapley’s

       8
      The Fair Housing Act provides: “A person shall not be held personally liable for monetary
damages for a violation of this chapter if such person reasonably relied, in good faith, on the
application of the exemption under this subsection relating to housing for older persons.” 42 U.S.C.
§ 3607(b)(5)(A) (emphasis added).
   9
     Those decisions we cited in Gonzalez, id. at 1300 n.34, were Lussier v. Dugger, 904 F.2d 661,
663-64, 670 n.10 (11th Cir.1990) (the Rehabilitation Act of 1973); Cullinan v. Abramson, 128 F.3d
301, 307-12 (6th Cir.1997) (the Racketeer Influenced and Corrupt Organizations Act), cert. denied,
523 U.S. 1094, 118 S. Ct. 1560 (1998); Torcasio v. Murray, 57 F.3d 1340, 1343 (4th Cir.1995) (the

                                                10
contention, and the district court’s holding, that the existence of an explicit good

faith defense in a federal statute rules out the defense of qualified immunity.

       Tapley also argues that the statutory good faith defense and qualified

immunity are equivalent, so permitting both defenses is redundant. We doubt that

Tapley believes that, because if it were true, whether the defense of qualified

immunity is available would not matter to her claim, and she would not have

attempted to convince the district court and tried to convince us that it is

unavailable. In any event, qualified immunity and the good faith defense in the

Federal Wiretap Act are not equivalent defenses. The two are different in several

important respects.

       Qualified immunity is an objective test, see Anderson v. Creighton, 483 U.S.

635, 639, 107 S. Ct. 3034, 3038 (1987), while good faith defenses are subjective in

nature, see Harlow, 457 U.S. at 816, 102 S. Ct. at 2737. Qualified immunity is as a

Americans with Disabilities Act and the Rehabilitation Act of 1973); Lue v. Moore, 43 F.3d 1203,
1205 (8th Cir.1994) (the Rehabilitation Act of 1973); McGregor v. Louisiana State Univ. Bd. of
Supervisors, 3 F.3d 850, 862 & n.19 (5th Cir.1993) (the Rehabilitation Act of 1973); Cronen v.
Texas Dep't of Human Servs., 977 F.2d 934, 939-40 (5th Cir.1992) (Food Stamp Act of 1977); Doe
v. Attorney General, 941 F.2d 780, 797-99 (9th Cir.1991) (the Rehabilitation Act of 1973);
Christopher P. by Norma P. v. Marcus, 915 F.2d 794, 798-801 (2d Cir.1990) (the Education for All
Handicapped Children Act of 1975); P.C. v. McLaughlin, 913 F.2d 1033, 1040-42 (2d Cir.1990) (the
Education for All Handicapped Children Act of 1975 and the Rehabilitation Act of 1973); Affiliated
Capital Corp. v. City of Houston, 735 F.2d 1555, 1569-70 (5th Cir.1984) (the Sherman Antitrust
Act); National Black Police Ass'n, Inc. v. Velde, 712 F.2d 569, 574-80 (D.C. Cir.1983) (Title VI of
the Civil Rights Act of 1964 and the Crime Control Act of 1973). We also cited in Gonzalez as
contrary authority Samuel v. Holmes, 138 F.3d 173, 178 (5th Cir.1998) (holding that qualified
immunity is not an available defense in retaliation claims brought under the False Claims Act).


                                                11
question of law for the judge, while good faith generally is a jury question. See id.

at 816-18, 102 S. Ct. at 2737-38. Because it is a question of law for the judge, a

qualified immunity defense more often can be, and generally should be, decided

earlier in the litigation than a good faith defense. See Hunter v. Bryant, 502 U.S.

224, 227, 112 S. Ct. 534, 536 (1991) (“[B]ecause the entitlement is an immunity

from suit rather than a mere defense to liability, we repeatedly have stressed the

importance of resolving immunity questions at the earliest possible stage in

litigation.”) (internal marks and citations omitted); Siegert v. Gilley, 500 U.S. 226,

232, 111 S. Ct. 1789, 1793 (1991) (Qualified immunity is determined at the earliest

point in the litigation “to spare a defendant not only unwarranted liability, but

unwarranted demands customarily imposed upon those defending a long drawn out

lawsuit.”). Finally, a denial of qualified immunity is interlocutorily appealable, see

Behrens v. Pelletier, 516 U.S. 299, 307, 116 S. Ct. 834, 839 (1996), while a denial

of a good faith defense is appealable only after there has been a final judgment in

the case, see 28 U.S.C. § 1291; Cohen v. Beneficial Indus. Loan Corp., 337 U.S.

541, 546, 69 S. Ct. 1221, 1225-26 (1949).

      Only two circuits have directly addressed the issue of whether qualified

immunity is a defense to a suit brought under the Federal Wiretap Act. They

reached opposite conclusions. In Berry v. Funk, 146 F.3d 1003 (D.C. Cir. 1998),


                                          12
the D.C. Circuit held that qualified immunity is not a Federal Wiretap Act defense,

reasoning, as the district court in this case did, that because Congress had already

set forth a statutory good faith defense “it is hardly open to the federal court to

graft common law defenses on top of those Congress creates.” Id. at 1013.

      One year after Berry was decided, the Sixth Circuit in Blake v. Wright, 179

F.3d 1003 (6th Cir. 1999), disagreed with the D.C. Circuit’s decision and held that

qualified immunity is a defense to violations of the Federal Wiretap Act. The

Sixth Circuit reasoned that by adopting qualified immunity as a defense for public

officials but not private citizens, courts had determined that public officials were to

receive more protection from statutory claims than ordinary citizens. See id. at

1012. The reason for that extra protection is to avoid “the general costs of

subjecting officials to the risks of trial – distraction of officials from their

governmental duties, inhibition of discretionary action, and deterrence of able

people from public service.” Harlow, 457 U.S. at 816, 102 S. Ct. at 2737. It

follows that courts should not infer that Congress meant to abolish in the Federal

Wiretap Act that extra layer of protection qualified immunity provides for public

officials simply because it included an extra statutory defense available to

everyone. See Berry, 179 F.3d at 1012. As the Sixth Circuit also explained: “We

fail to see the logic of providing a defense of qualified immunity to protect public


                                           13
officials from personal liability when they violate constitutional rights that are not

clearly established and deny them qualified immunity when they violate statutory

rights that similarly are not clearly established.” Id. at 1013. Neither do we.

      Finally, the Sixth Circuit made this point for which we have heard no

persuasive answer: “We would not strip a judge or prosecutor of absolute

immunity because the claim related to a statutory violation and the statute provided

an affirmative defense. By the same token, police officers and public officials

performing governmental functions should not lose their qualified immunity

because of an affirmative defense which might or might not protect them but

would, in all events, require they be subject to extended litigation and deprive them

of the benefits of qualified immunity.” Id. at 1012.

      We agree with the Sixth Circuit’s holding and reasoning in Blake and

disagree with the D.C. Circuit’s Berry decision. As the Supreme Court has

explained, the qualified immunity defense is so well-rooted in our jurisprudence

that only a specific and unequivocal statement of Congress can abolish the defense.

See Buckley v. Fitzsimmons, 509 U.S. 259, 268, 113 S. Ct. 2606, 2613 (1993)

("Certain immunities were so well established in 1871, when § 1983 was enacted,

that we presume that Congress would have specifically so provided had it wished

to abolish them.") (citations and internal quotation marks omitted); Owen v. City


                                          14
of Independence, 445 U.S. 622, 637, 100 S.Ct. 1398, 1408 (1980) (quoting Pierson

v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218 (1967)) (“‘Congress would have

specifically so provided had it wished to abolish the doctrine.’”). The Federal

Wiretap Act lacks the specific, unequivocal language necessary to abrogate the

qualified immunity defense. Any contrary conclusion would be inconsistent with

our Gonzalez decision, which we are bound to follow.

        Because the defense of qualified immunity is available to public officials

who are sued under the Federal Wiretap Act, the district court erred in ruling it out

in this case. On remand, the court should apply qualified immunity principles to

the law and evidence applicable to this case and decide whether the individual

defendants are entitled to summary judgment on qualified immunity grounds

insofar as the Federal Wiretap Act claim against them in their individual capacities

is concerned. We remand the case to the district court for that purpose.10

   10
      We have pendent appellate jurisdiction to decide some subsidiary issues concerning whether
the defendants’ alleged actions violated the Federal Wiretap Act at all, because those issues are
inextricably intertwined with the qualified immunity issues which we have interlocutory jurisdiction
to review. See Swint v. Chambers County Comm’n, 514 U.S. 35, 51, 115 S. Ct. 1203, 1212 (1995);
Moniz v. City of Fort Lauderdale, 145 F.3d 1278, 1281 n.3 (11th Cir. 1998). An example is the
issue of whether interception of a conversation being transmitted by a cordless phone of the nature
allegedly used in this case, lacking as it did certain privacy features, violates the Federal Wiretap
Act. But those issues have been poorly briefed, if at all, by the parties, and we exercise our
discretion to decline to decide them now. See Belcher v. City of Foley, 30 F.3d 1390, 1401 (11th
Cir. 1994)(“We decline to exercise our discretion to review the remaining claims under pendent
appellate jurisdiction.”) We imply no view on any issue concerning whether the alleged conduct
of the defendants violated the Federal Wiretap Act. For now, we decide only that the district court
erred in holding that qualified immunity was not an available defense at all to Federal Wiretap Act
claims.

                                                 15
                              V. CONCLUSION

      The denial of summary judgment to the individual defendants is

REVERSED AND REMANDED for further proceedings consistent with this

opinion.

      The appeal of the City of Vidalia is DISMISSED for lack of jurisdiction.




                                       16
BARKETT, Circuit Judge, specially concurring:

      I concur because I believe this result is dictated by this Court’s decision in

Gonzalez v. Lee County Hous. Auth., 161 F.3d 1290 (11th Cir. 1998).




                                         17
