                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 12, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 PAMELA A. PHILLIPS,

          Plaintiff-Appellee,
                                                         No. 08-1420
 v.                                        (D.Ct. No. 1:07-CV-00604-WYD-MEH)
                                                          (D. Colo.)
 FRED BELL, also known as Jeff
 Bell; ANDREW LLUBERES; and
 JOHN DOES 1 through 10,

          Defendants-Appellants.
                        ____________________________

                                ORDER AND JUDGMENT *


Before O'BRIEN and BRORBY, Circuit Judges, and DOWNES, District Judge. **



      Appellants Fred Bell, also known as Jeff Bell, and Andrew Lluberes

(together referred to as Appellants) appeal the district court’s denial of their

motion to dismiss, in favor of Appellee Pamela Phillips on her Bivens action 1



      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
       Honorable William F. Downes, U.S. District Court Judge, District of
Wyoming, sitting by designation.
      1
        See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971).
against them for alleged violations of Title III of the Omnibus Crime Control and

Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (hereafter referred to as the

Federal Wiretap Act or the Act). Exercising our jurisdiction under 28 U.S.C.

§ 1291, we reverse and remand for further proceedings.



                              I. Factual Background

      This case concerns whether Appellees – employees of the Federal Bureau

of Alcohol, Tobacco, Firearms, and Explosives (ATF) – are entitled to dismissal

of the complaint against them under Federal Rule of Civil Procedure 12(b)(6) and

on qualified immunity grounds for their alleged violations of the Federal Wiretap

Act regarding their disclosure of telephone recordings between Ms. Phillips and

another person who recorded those conversations without her permission.

Specifically, Ms. Phillips alleges in her Second Amended Complaint (complaint)

that in November 2005, ATF agents arrested Ronald Young in Florida on charges

pertaining to an outstanding Colorado warrant. Subsequent to his Florida arrest

and interview, Mr. Young consented to a search of four Broward County, Florida

locations, including an apartment, a motel room, a motor vehicle, and a storage

facility, where agents seized, among other things, numerous recorded telephone

conversations between Mr. Young and Ms. Phillips which he recorded without her

consent.




                                        -2-
      According to Ms. Phillips’s complaint, the ATF agents who obtained the

recordings disclosed and released copies of the seized recordings of her oral

communications to numerous federal and state law enforcement officers,

including Agent Bell, who is employed with the ATF in Arizona. She alleges that

on September 5, 2006, Agent Bell disclosed the contents of the recordings to

other law enforcement officers who provided sworn affidavits identifying the

voices on the recordings as belonging to Mr. Young and Ms. Phillips. Ms.

Phillips further alleges that on the next day, September 6, 2006, Agent Bell

caused the contents of the recordings to be “disclosed ... and used in public

documents,” which the parties have since clarified are a search warrant for her

home and the supporting affidavits identifying the participants’ voices. The

complaint further alleges Agent Bell participated in the September 2006 search of

her home in Aspen, Colorado, as apparently supported by the search warrant and

affidavits attached thereto. While the complaint fails to disclose the contents of

the telephone recordings, the parties have clarified the search warrant and

affidavits discussing their contents implicate Ms. Phillips in the murder of her ex-

husband, who was killed by a car bomb in Arizona in 1996. They also

acknowledge, for the purpose of this appeal, that the recorded conversations

indicate she agreed to pay Mr. Young to murder her ex-husband, but the

timeliness of her payments to him was in dispute. However, no allegation in the

complaint references these circumstances.

                                         -3-
      Besides alleging Agent Bell wrongly disclosed the contents of the

recordings to other law enforcement officers for the purpose of searching her

home, Ms. Phillips alleges Agent Bell disclosed to or otherwise assisted an ATF

Public Affairs employee, Mr. Lluberes, who was located in Washington, D.C., in

the disclosure of the recorded conversations to seven Colorado media outlets,

including major newspaper agencies and television news network affiliates.

Finally, she alleges Agent Bell disclosed and used the contents of the recorded

conversations during an interview with an unidentified private Aspen citizen.2



                            II. Procedural Background

      Based on the facts alleged, Ms. Phillips filed the instant Bivens action

against Agent Bell and Mr. Lluberes, individually, alleging they violated her

rights under the Fourth Amendment and the Federal Wiretap Act. In so doing,

she alleges Mr. Young recorded her:

      oral telephone communications without [her] knowledge and prior
      consent specifically for the purpose of committing a criminal or
      tortious act, including without limitation, invasion of privacy,
      extreme and outrageous conduct, intentional infliction of emotional
      distress, defamation of character, and/or improper recording of
      private communications for improper use and disclosure.


      2
         In her complaint, Ms. Phillips also alleged Florida ATF Agents Richard
Coes and Hugh O’Connor disclosed or otherwise assisted Agent Bell and Mr.
Lluberes in disclosing the contents of the seized recordings to the media and/or
other private persons in Colorado. However, because she voluntarily dismissed
her claims against them we need not address them on appeal.

                                        -4-
Apt. App. at 44 (¶ 20). In implicating Agent Bell and Mr. Lluberes in violation

of the Act, she alleged that “[b]y virtue of their employment as special agents

with the ATF Bureau, [Appellants] knew or had reason to know that the seized

recordings of [her] oral communications had been improperly and illegally

intercepted [by Mr. Young] under both the federal and Florida wiretap statutes.” 3

Id. at 45 (¶ 25).



      Appellants moved to dismiss under Rule 12(b)(6) and qualified immunity

grounds, arguing the complaint’s factual allegations were too conclusory to state

a claim, the actions alleged were not unlawful, and, even if they were, a

reasonable officer in their positions would not have known so when the conduct

occurred. The district court dismissed Ms. Phillips’s Fourth Amendment claims,

reasoning she possessed alternative claims for damages under the Federal Wiretap

Act. However, it declined to dismiss her allegations concerning violations of the

Federal Wiretap Act, concluding it was not evident whether the Act’s “one-party

consent” exception foreclosed her claims because it was not clear if Mr. Young

had a criminal or tortious purpose in making the recordings and if Appellants

knew of that purpose. In addition, the district court held the alleged violations of

the Federal Wiretap Act were clearly established and, in so doing, singularly

      3
        While Ms. Phillips’s complaint mentions the Florida wiretap statutes,
Appellants point out that the Florida statutes have not been raised as an issue on
appeal. We agree, and therefore decline to address them in this appeal.

                                         -5-
relied on Berry v. Funk, 146 F.3d 1003 (D.C. Cir. 1998), to explain its holding.



      This appeal follows, in which Appellants again contend they are entitled to

dismissal of the complaint on sufficiency and qualified immunity grounds. First,

they argue Ms. Phillips’s bald assertions Mr. Young recorded the conversations

for a criminal or tortious purpose and that Appellants knew or had reason to know

of his purpose merely because of their ATF positions, are conclusory and fail the

“plausibility standard” required for a denial of their motion to dismiss. In making

this contention, they point out other plausible noncriminal and nontortious

reasons may have existed as to why Mr. Young recorded the conversations,

including creating a bargaining chip with prosecutors in the event of his arrest or

protecting himself from any efforts by Ms. Phillips to either pin the murder solely

on him or cause him harm because of his knowledge of her participation in the

murder.



      In addition, Appellants argue they are entitled to qualified immunity from

Ms. Phillips’s claim they violated the Federal Wiretap Act. In so doing, they

assert any use of the recorded conversations by Agent Bell in the course of his

investigatory activities, including their use in support of the search warrant, meets

the Act’s law enforcement exception. Next, they claim no violation of the Act

occurred regarding distribution of information to the news media or private

                                         -6-
citizens because: (1) that information was already public, based on unsealed

affidavits supporting the search warrant for Ms. Phillips’s home; and (2)

distribution of “public information” under the Act’s statutory history is not a

violation of the Act. Finally, they argue that, even if the complaint adequately

states a violation of the Federal Wiretap Act, the district court erred in not

granting their motion to dismiss because the conduct of Agent Bell and Mr.

Lluberes was not contrary to clearly established law, as demonstrated by the facts:

(1) the law is unsettled regarding what law enforcement officers may legally do

with information they innocently obtain from private parties who have unlawfully

intercepted it; and (2) different courts of appeals have reached conflicting

conclusions about whether 18 U.S.C. § 2517(1) and (2) and § 2515 of the Federal

Wiretap Act incorporate a clean-hands exception. 4



          III. Jurisdiction, Standard of Review, and Sufficiency of Complaint

      As a preliminary matter, the parties agree “[w]e have jurisdiction to hear

appeals of the denial of qualified immunity when they turn on an issue of law.”


      4
          In their appeal brief, Appellants also state newspaper accounts suggest
that, following the district court’s decision, Ms. Phillips was indicted in Arizona
for the 1996 murder of her ex-husband but fled the country and remains abroad.
While they do not raise the issue of the “fugitive disentitlement doctrine” on
appeal, they note they may raise such a defense in any further district court
proceeding as grounds for dismissal. Because Appellants have not raised this
issue on appeal or provided sufficient legal argument and citation of authority in
support thereof, we decline to address it.

                                          -7-
Eaton v. Meneley, 379 F.3d 949, 952 (10 th Cir. 2004). Turning to our standard of

review and applicable legal principles involving motions to dismiss, we review de

novo a district court’s denial of a motion to dismiss a complaint under Federal

Rule of Civil Procedure 12(b)(6) for failure to state a claim. See Dias v. City and

County of Denver, 567 F.3d 1169, 1178 (10 th Cir. 2009); Gann v. Cline, 519 F.3d

1090, 1092 (10 th Cir. 2008); Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215

(2007). “We assume the truth of all well-pleaded facts in the complaint, and draw

reasonable inferences therefrom in the light most favorable to the plaintiff[].”

Dias, 567 F.3d at 1178 (alteration added). This assumption, however, is

inapplicable when the complaint relies on a recital of the elements of a cause of

action supported by mere conclusory statements. See Ashcroft v. Iqbal, ___ U.S.

___, 129 S. Ct. 1937, 1949 (2009).



      In addition, “[t]he court’s function on a Rule 12(b)(6) motion is not to

weigh potential evidence that the parties might present at trial, but to assess

whether the plaintiff’s complaint alone is legally sufficient to state a claim for

which relief may be granted” under Rule 8(a)(2). Smith v. United States, 561

F.3d 1090, 1098 (10 th Cir. 2009) (quotation marks and citation omitted), cert.

denied, ___ S. Ct. ___, 2010 WL 154973 (U.S. Jan. 19, 2010) (No. 09-549).

While, generally, only the complaint and its allegations are considered in a

motion to dismiss, documents referred to in the complaint may be considered at

                                         -8-
the motion-to-dismiss stage if they are “central to the plaintiff’s claim” and their

authenticity is undisputed. Alvarado, 493 F.3d at 1215. Accordingly, in this

case, we will generally consider the search warrant and supporting affidavits

referenced in the complaint which summarize the contents of the recordings

because they are central to Ms. Phillips’s claims, and their authenticity is

undisputed.



      In reviewing a motion to dismiss, it is important to note “Federal Rule of

Civil Procedure 8(a)(2) provides that a complaint must contain ‘a short and plain

statement of the claim showing that the pleader is entitled to relief.’” Robbins v.

Oklahoma, 519 F.3d 1242, 1246 (10 th Cir. 2008). In the past, we “generally

embraced a liberal construction of [this] pleading requirement,” and held “a

complaint containing only conclusory allegations could withstand a motion to

dismiss unless its factual impossibility was apparent from the face of the

pleadings ....” Id. However, the Supreme Court has recently “clarified” this

standard, stating that “to withstand a motion to dismiss, a complaint must contain

enough allegations of fact ‘to state a claim to relief that is plausible on its face.’”

Id. at 1247 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Specifically, “[f]actual allegations must be enough to raise a right to relief above

the speculative level,” Twombly, 550 U.S. at 555, so that “[t]he allegations must

be enough that, if assumed to be true, the plaintiff plausibly (not just

                                          -9-
speculatively) has a claim for relief.” Robbins, 519 F.3d at 1247. Under this

standard, “a plaintiff must nudge his claims across the line from conceivable to

plausible in order to survive a motion to dismiss.” Smith, 561 F.3d at 1098.

Therefore, a plaintiff must “frame a ‘complaint with enough factual matter (taken

as true) to suggest’ that he or she is entitled to relief.” Robbins, 519 F.3d at 1247

(quoting Twombly, 550 U.S. at 556).



      On the other hand, we have also held “granting a motion to dismiss is a

harsh remedy which must be cautiously studied, not only to effectuate the spirit of

the liberal rules of pleading but also to protect the interests of justice.” Dias, 567

F.3d at 1178 (quotation marks and citation omitted). “Thus, ‘a well-pleaded

complaint may proceed even if it strikes a savvy judge that actual proof of those

facts is improbable, and that a recovery is very remote and unlikely.’” Id.

(quoting Twombly, 550 U.S. at 556).



      In discussing the sufficiency of a complaint’s allegations, we look to two

Supreme Court decisions, Twombly and Iqbal, which provide the determinative

test for whether a complaint meets the requirements of Federal Rules of Civil

Procedure 8(a)(2) and 12(b)(6) for assessing whether it is legally sufficient to

state a claim for which relief may be granted. In Twombly, the Supreme Court

considered a class action complaint alleging a conspiracy to restrain trade by

                                         -10-
communication carriers. 550 U.S. at 548-51. As previously noted, it held a

complaint’s “allegations must be enough that, if assumed to be true, the plaintiff

plausibly (not just speculatively) has a claim for relief.” Robbins, 519 F.3d at

1247. The Twombly Court explained this “does not impose a probability

requirement at the pleading stage,” but “calls for enough fact[s] to raise a

reasonable expectation that discovery will reveal evidence of” misconduct

required for relief. 550 U.S. at 556. As a result, the Court pointed out the

complaint must provide “more than labels and conclusions” or merely “a

formulaic recitation of the elements of a cause of action,” so that “courts ‘are not

bound to accept as true a legal conclusion couched as a factual allegation.’” Id. at

555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). It concluded a “bare

assertion” of the elements required to make a claim is not enough, but a claim

needs “some further factual enhancement” to get it from “possibility” to the

requisite “plausibility” required for relief. Id. at 556-57.



      The Twombly Court applied these principles when considering the class

action complaint’s allegation asserting the defendants:

      engaged in a contract, combination or conspiracy to prevent
      competitive entry in their respective local telephone and/or high
      speed internet services markets by, among other things, agreeing not
      to compete with one another and to stifle attempts by others to
      compete with them and otherwise allocating customers and markets
      to one another ....


                                         -11-
Id. at 551 & n.2, 564; Iqbal, 129 S. Ct. at 1950. It determined this and the other

allegations in the complaint were “merely legal conclusions” for claiming a legal

conspiracy, which, without additional allegations of “action or inaction,” failed to

assert facts sufficient to state a claim for relief “plausible on its face.” Twombly,

550 U.S. at 564-70. Following Twombly, we determined that “plausibility,” as

used by the Supreme Court, referred to the scope of the allegations in a

complaint, and “if they are so general that they encompass a wide swath of

conduct, much of it innocent, then the plaintiffs have not nudged their claims

across the line from conceivable to plausible.” Robbins, 519 F.3d at 1247

(quotation marks and citation omitted).



      Following Twombly, the Iqbal Court considered a Pakistani Muslim pretrial

detainee’s complaint alleging government officials, following the September 11,

2001 terrorist attacks, unconstitutionally arrested and detained him under

restrictive or harsh conditions based on his race, religion, or national origin. See

129 S. Ct. at 1939. In addressing the sufficiency of Mr. Iqbal’s complaint, the

Supreme Court discussed the two working principles underlying Twombly. First,

it noted “the tenet that a court must accept as true all of the allegations contained

in a complaint is inapplicable” to “[t]hreadbare recitals of the elements of a cause

of action, supported by mere conclusory statements ....” Id. at 1949. Second, it

pointed out “only a complaint that states a plausible claim for relief survives a

                                          -12-
motion to dismiss,” and that “[d]etermining whether a complaint states a plausible

claim for relief will ... be a context-specific task that requires the reviewing court

to draw on its judicial experience and common sense.” Id. at 1950. It further

explained that “where the well-pleaded facts do not permit the court to infer more

than the mere possibility of misconduct,” the complaint has merely made an

allegation, “but it has not shown that the pleader is entitled to relief.” Id.

(emphasis added) (alteration, quotation marks, and citation omitted).



      In addressing the first principle, the Supreme Court considered Mr. Iqbal’s

allegation government officials “knew of, condoned, and willfully and

maliciously agreed to subject him to harsh conditions of confinement as a matter

of policy, solely on account of his religion, race, and/or national origin and for no

legitimate penological interest” and that one of the defendants was “the principle

architect of this invidious policy,” while the other was “instrumental in adopting

and executing it.” Id. at 1951 (quotation marks and citations omitted). The Iqbal

Court determined these were “bare assertions ... [that] amount to nothing more

than a ‘formulaic recitation of the elements’ of a constitutional ... claim” and that

the allegations were “conclusory and not entitled to be assumed true.” Id.

(quoting Twombly, 550 U.S. at 555).



      With regard to the second Twombly principle, the Iqbal Court looked at the

                                          -13-
complaint’s factual allegations and concluded, if taken as true, they were

consistent with discrimination based on race, religion, or national origin. Id.

However, it determined the more likely or plausible explanation for the

defendants’ conduct was based on the nondiscriminatory intent of directing law

enforcement to arrest and detain individuals because of their suspected link to the

attacks, which, although producing a disparate, incidental impact on Arab

Muslims, was not a policy intended to target either Arabs or Muslims. Id. As a

result, it determined the allegations in Mr. Iqbal’s complaint, even if inferencing

purposeful, invidious discrimination, did not “plausibly establish” the alleged

discrimination. Id.



                         IV. Applicable Statutory Scheme

      Having outlined Twombly, Iqbal, and other principles involving the

sufficiency of a complaint’s allegations, we turn to the statutory structure on

which Ms. Phillips bases her claim and the elements she must plead to state such

a claim. The Federal Wiretap Act prohibits, with specified exceptions, both: (1)

the intentional interception of “any wire, oral, or electronic communication,” 18

U.S.C. § 2511(1)(a); and (2) the intentional disclosure or use of the contents of

any such illegally intercepted communication if the persons who disclose or use it

did so “knowing, or having reason to know,” the communication was intercepted

in violation of the Federal Wiretap Act. 18 U.S.C. § 2511(1)(c) and (d). While

                                         -14-
§ 2511(1)(c) and (d) prohibit such intentional disclosure or use of any illegally

intercepted communication, the legislative history of the Act states § 2511(1)(c)

and (d) were not intended to apply to “[t]he disclosure of the contents of an

intercepted communication that had already become ‘public information’ or

‘common knowledge.’” S. Rep. No. 90-1097, at 4 (1968), as reprinted in 1968

U.S.C.C.A.N. 2112, 2181.



      In addition, one of the explicit exceptions to the Act’s prohibition against

interception of communications involves the “one-party consent” rule. See 18

U.S.C. § 2511(2)(d). Under this exception, interception of a communication by or

with the consent of a party to the communication is not unlawful, unless the

interception is “for the purpose of committing any criminal or tortious act in

violation of the Constitution or laws of the United States or of any State.” Id.

Other exceptions are specific to “investigative or law enforcement officer[s].” 18

U.S.C. § 2517. Under § 2517(1), any officer “who, by any means authorized” by

the Federal Wiretap Act, obtains knowledge of an intercepted communication,

may “disclose” it to another such officer “to the extent that such disclosure is

appropriate to the proper performance of the official duties of the officer making

or receiving the disclosure.” Similarly, an officer who, by means “authorized” by

the Act, obtains knowledge of the contents of an intercepted communication may

“use” it “to the extent such use is appropriate to the proper performance of his

                                         -15-
official duties.” 18 U.S.C. § 2517(2). The Federal Wiretap Act also provides

“good faith” defenses to civil liability, including certain requests of an

investigative or law enforcement officer or for reliance on “a court warrant or

order, a grand jury subpoena, a legislative authorization, or a statutory

authorization.” 18 U.S.C. § 2520(d).



                               V. Discussion of Issues

                           A. Sufficiency of Allegations

      Applying Twombly, Iqbal, and the other applicable principles presented

here, we look at the instant complaint to see whether it includes the necessary

elements for a cause of action as well as alleges facts sufficient to survive a

motion to dismiss. As discussed, the one-party consent exception allows

interception of a communication by or with the consent of a party to the

communication but prohibits an interception “for the purpose of committing any

criminal or tortious act ....” 18 U.S.C. § 2511(2)(d) (emphasis added). In her

complaint, Ms. Phillips alleges Mr. Young recorded her:

      oral telephone communications without [her] knowledge and prior
      consent specifically for the purpose of committing a criminal or
      tortious act, including without limitation, invasion of privacy,
      extreme and outrageous conduct, intentional infliction of emotional
      distress, defamation of character, and/or improper recording of
      private communications for improper use and disclosure.

Apt. App. at 44 (¶ 20) (emphasis added).


                                         -16-
      Other than providing the essential elements of the Act by claiming Mr.

Young committed a “criminal or tortious act” and citing a string of possible

scenarios in a conclusory fashion, it is evident the complaint offers little in terms

of factual allegations or “further factual enhancement.” Instead, as in Iqbal, we

are provided “a ‘formulaic recitation of the elements’ of a ... claim” where the

allegations are “conclusory” and therefore “not entitled to be assumed true.” 129

S. Ct. at 1951 (quoting Twombly, 550 U.S. at 555).



      However, even if we view the facts in Ms. Phillips’s complaint as true and,

thus, in a light most favorable to her, the complaint also fails to meet the

plausibility requirement. Ms. Phillips’s recitation of the statutory elements and

string of possible reasons for Mr. Young’s recording of their conversations is “so

general that [it] encompass[es] a wide swath of conduct,” Robbins, 519 F.3d at

1247, and lacks the necessary factual enhancements to get it from the

“possibility” of misconduct to a “plausibility” of such misconduct required for

relief. Twombly, 550 U.S. at 557. This is because disclosure of the recordings’

contents for the purposes Ms. Phillips claims, while possible, would have clearly

inculpated Mr. Young in the crime of murdering her ex-husband. As a result, it is

fairly implausible he would use such self-damning information for the purposes

she contends, including invading her privacy, intentionally inflicting emotional

distress, or defaming her character.

                                         -17-
      As the government points out, more plausible reasons exist for Mr. Young

making the recordings, including to protect himself against any future conduct by

Ms. Phillips in implicating him alone in her husband’s murder. In the event Ms.

Phillips did implicate him or he was later arrested, it is also plausible he

sagaciously made the recordings to provide himself leverage with the government

for a reduced sentence if he assisted in proving Ms. Phillips’s participation in the

murder. It is also possible he made the recordings for the purpose of ensuring she

paid him for the murder he committed, which, admittedly, amounts to extortion or

other criminal conduct, but which is not alleged in the complaint. Thus, while

Ms. Phillips’s complaint mentions certain possible reasons for Mr. Young making

the recordings, none of her alleged facts take us beyond pure speculation to

plausibility. Considering the circumstances another way, we are provided no

additional factual allegations to support Ms. Phillips’s contention Mr. Young

made the recordings to invade her privacy, intentionally inflict emotional distress,

or defame her character, so we are without sufficient “fact[s] to raise a reasonable

expectation that discovery will reveal evidence of” the type of misconduct for

which she requests relief. Twombly, 550 U.S. at 556.



      Even if we assume Mr. Young made the recordings “for the purpose of

committing a criminal or tortious act,” the Act requires that those, such as the

Appellants, who intentionally disclose or use the contents of any such illegally

                                          -18-
intercepted communication, do so “knowing or having reason to know” the

communication was intercepted in violation of the Act. 18 U.S.C. § 2511(1)(c)

and (d) (emphasis added). We have said that in asserting the material elements

under these provisions a complaint must allege the defendants knew: “(1) the

information used or disclosed came from an intercepted communication, and (2)

sufficient facts concerning the circumstances of the interception such that the

defendant[s] could, with presumed knowledge of the law, determine that the

interception was prohibited in light of” the Act. Thompson v. Dulaney, 970 F.2d

744, 749 (10 th Cir. 1992) (emphasis added).



      In this case, Ms. Phillips alleges that “[b]y virtue of their employment as

special agents with the ATF Bureau, [Appellants] knew or had reason to know

that the seized recordings of [her] oral communications had been improperly and

illegally intercepted” by Mr. Young under the Federal Wiretap Act. Apt. App. at

45 (¶ 25). However, like the allegations in Iqbal that one of the defendants was

“the principle architect of [an] invidious policy” and another was “instrumental in

adopting and executing it,” 129 S. Ct. at 1951, this allegation is conclusory

because Ms. Phillips points to no fact other than the Appellants’ positions of

employment for the proposition they knew or should have known of Mr. Young’s

alleged misconduct or of the “circumstances of the interception.” Thompson, 970

F.2d at 749. Nothing in the complaint indicates either Agent Bell, who was

                                        -19-
located in Arizona, or Mr. Lluberes, who was located in Washington, D.C., were

involved in Mr. Young’s Florida arrest and interview, or the Broward County

search of four locations resulting in discovery of the tapes. Merely because one

holds a law enforcement position does not establish he knew the criminal intent of

someone he has never met or investigated. The complaint similarly provides no

additional material facts concerning the circumstances of the interception to

conclude Appellants could somehow determine Mr. Young recorded the

conversations for the purpose of “committing a criminal or tortious act.” Instead,

given the plausibility that Mr. Young would not incriminate himself with the

recordings, we cannot agree with Ms. Phillips’s contention Appellants, merely

because of their positions with ATF, knew or should have known that Mr. Young

recorded their conversations for the purpose of “committing a criminal or tortious

act.”



        While we generally do not rely on information outside of a complaint’s

allegations, none of Ms. Phillips’s other pleadings or allegations persuade us of

the plausibility of her allegations. Specifically, Ms. Phillips stated in another

pleading and now on appeal that Mr. Young was known to be a fugitive and

wanted in Colorado for fraud crimes and that the only reason she could “fathom

for [Mr.] Young’s surreptitious recordings is that he planned to use the tapes

against her for any number of illegal purposes.” Apt. App. at 111. But these

                                         -20-
facts and her assumption are only speculation as to his reasons for making the

recordings. Similarly, during oral argument on appeal, her counsel contended

excerpts of the recordings, garnered from the affidavits in support of the search

warrant, suggested Mr. Young had a nefarious purpose of extortion in recording

their conversations. But, again, these allegations are outside the complaint and,

without more factual enhancement, appear conclusory or speculative. Thus, for

all of the reasons provided, Ms. Phillips has failed to “nudge” her claims “across

the line from conceivable to plausible in order to survive a motion to dismiss.”

Smith, 561 F.3d at 1098.



                              B. Qualified Immunity

      Having determined Ms. Phillips’s claims are insufficient to state a claim for

relief for the purpose of surviving Appellants’ motion to dismiss, we need not

address the issue of qualified immunity 5 raised by Appellants, including: (1)

whether Agent Bell allegedly violated the Federal Wiretap Act by disclosing the

      5
         Once a defendant asserts the qualified immunity defense to a substantive
due process claim, the burden shifts to the plaintiff to establish: (1) the
defendant’s conduct violated a statutory or constitutional right, and (2) the law
governing the conduct was clearly established at the time of the alleged violation.
See Eaton, 379 F.3d at 954; Saucier v. Katz, 533 U.S. 194, 201 (2001). In
determining whether the right was clearly established, “[t]he relevant, dispositive
inquiry ... is whether it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.” Saucier, 533 U.S. at 202. “A plaintiff
can demonstrate a constitutional right is clearly established by reference to cases
from the Supreme Court, the Tenth Circuit, or the weight of authority from other
circuits.” Anderson v. Blake, 469 F.3d 910, 914 (10th Cir. 2006).

                                        -21-
recordings to other law enforcement officers, using them in support of the search

warrant, or allegedly disclosing them to a private citizen during an investigative

interview; 6 or (2) whether the law governing his or Mr. Lluberes’s conduct was

clearly established at the time of the alleged violation. But, even if we elected to

consider qualified immunity and applied it here, it is highly doubtful Ms. Phillips

could prevail in carrying her burden to show the Appellants’ conduct violated a

statutory or constitutional right with regard to the disclosure of alleged “public

documents” regarding the contents of the seized recorded oral communications,

which, according to the parties, are the warrant and affidavits in support thereof.



      While counsel for Ms. Phillips conceded at oral argument that the

complaint alleges the disclosure of “public documents,” he also pointed out that,

typically, affidavits and/or search warrants are not available to the public.

However, as previously discussed, we generally consider only the allegations

contained in a complaint in considering the denial of a motion to dismiss, which,

here, clearly alleges disclosure of “public documents.” Additionally, as

      6
         As previously discussed, the Federal Wiretap Act provides certain law
enforcement exceptions for use or disclosure of such recordings. While Ms.
Phillips acknowledges at least two other circuits apply a “clean hands approach”
to these provisions so law enforcement officers may disclose the contents of
intercepted recordings to obtain and execute a warrant when they played no part
in the unlawful private interception, she suggests this circuit should reject such an
approach, as at least two other circuits have done. However, having disposed of
this appeal on the sufficiency of the allegations of the complaint, we decline to
address this issue.

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Appellants contend, the legislative history of the Federal Wiretap Act points out

the evident – § 2511(1)(c) was not intended to apply to “[t]he disclosure of the

contents of an intercepted communication that had already become ‘public

information’ or ‘common knowledge.’” S. Rep. No. 90-1097, at 4 (1968), as

reprinted in 1968 U.S.C.C.A.N. 2112, 2181. As a result, Ms. Phillips’s allegation

of disclosure of public documents is seemingly insufficient to allege a violation of

the Act.



                                  VI. Conclusion

      For the reasons articulated herein, we reverse the district court’s denial of

Appellants’ motion to dismiss and remand for further proceedings consistent with

this opinion.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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