{ "id": 8920172, "name": "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 UNIVERSITY, Defendants", "name_abbreviation": "Huber v. North Carolina State University", "decision_date": "2004-04-20", "docket_number": "No. COA03-145", "first_page": "638", "last_page": "646", "citations": [ { "type": "official", "cite": "163 N.C. App. 638" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "489 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "888-89" } ], "opinion_index": 0 }, { "cite": "347 N.C. 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551301 ], "year": 1997, "pin_cites": [ { "page": "112-13" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0097-01" ] }, { "cite": "493 S.E.2d 746", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 270", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551363, 551119, 551121, 551218, 551071 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0270-02", "/nc/347/0270-01", "/nc/347/0270-03", "/nc/347/0270-04", "/nc/347/0270-05" ] }, { "cite": "487 S.E.2d 760", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "765" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 712", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11713093 ], "year": 1997, "pin_cites": [ { "page": "718" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0712-01" ] }, { "cite": "533 U.S. 194", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9313023 ], "weight": 5, "year": 2001, "pin_cites": [ { "page": "201" }, { "page": "281" }, { "page": "202" }, { "page": "282" } ], "opinion_index": 0, "case_paths": [ "/us/533/0194-01" ] }, { "cite": "121 L. Ed. 2d 431", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1992, "opinion_index": 0 }, { "cite": "506 U.S. 985", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12035616, 12035130, 12035173, 12035238, 12035081, 12035561, 12035342, 12034992, 12035285, 12035509, 12035449, 12035034, 12035391 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/us/506/0985-13", "/us/506/0985-04", "/us/506/0985-05", "/us/506/0985-06", "/us/506/0985-03", "/us/506/0985-12", "/us/506/0985-08", "/us/506/0985-01", "/us/506/0985-07", "/us/506/0985-11", "/us/506/0985-10", "/us/506/0985-02", "/us/506/0985-09" ] }, { "cite": "413 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "284" } ], "opinion_index": 0 }, { "cite": "330 N.C. 761", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511641 ], "year": 1992, "pin_cites": [ { "page": "772-74" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0761-01" ] }, { "cite": "457 U.S. 800", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6194865 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "818" }, { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/us/457/0800-01" ] }, { "cite": "779 F.2d 532", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1539745 ], "year": 1985, "pin_cites": [ { "page": "535-36", "parenthetical": "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" } ], "opinion_index": 0, "case_paths": [ "/f2d/779/0532-01" ] }, { "cite": "62 L. Ed. 2d 96", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1979, "opinion_index": 0 }, { "cite": "444 U.S. 871", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11366112, 11366204, 11366152, 11366794, 11366348, 11366957, 11366705, 11366643, 11366580, 11366265, 11366873, 11366490, 11366395, 11367067 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/444/0871-01", "/us/444/0871-03", "/us/444/0871-02", "/us/444/0871-11", "/us/444/0871-05", "/us/444/0871-13", "/us/444/0871-10", "/us/444/0871-09", "/us/444/0871-08", "/us/444/0871-04", "/us/444/0871-12", "/us/444/0871-07", "/us/444/0871-06", "/us/444/0871-14" ] }, { "cite": "18 U.S.C. \u00a7 2511", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(l)(b)(iv)" } ], "opinion_index": 0 }, { "cite": "598 F.2d 839", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 494168 ], "year": 1979, "pin_cites": [ { "page": "854", "parenthetical": "holding that Congress had the constitutional authority to enact 18 U.S.C. \u00a7 2511(l)(b)(iv) under the Commerce Clause" } ], "opinion_index": 0, "case_paths": [ "/f2d/598/0839-01" ] }, { "cite": "517 U.S. 44", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11744357 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "72-73" }, { "page": "276-77" } ], "opinion_index": 0, "case_paths": [ "/us/517/0044-01" ] }, { "cite": "108 F.3d 1379", "category": "reporters:federal", "reporter": "F.3d", "year": 1997, "opinion_index": 0 }, { "cite": "1993 WL 189941", "category": "reporters:specialty_west", "reporter": "WL", "year": 1993, "pin_cites": [ { "parenthetical": "stating that \"[s]ection 2520(a) expressly provides that municipal entities may be held liable for violations of the Federal Wiretapping Act\"" } ], "opinion_index": 0 }, { "cite": "1993 U.S. Dist. LEXIS 7365", "category": "reporters:specialty_lexis", "reporter": "U.S. Dist. LEXIS", "year": 1993, "pin_cites": [ { "parenthetical": "stating that \"[s]ection 2520(a) expressly provides that municipal entities may be held liable for violations of the Federal Wiretapping Act\"" } ], "opinion_index": 0 }, { "cite": "829 F. Supp. 998", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 398696 ], "year": 1993, "pin_cites": [ { "page": "1001-03", "parenthetical": "concluding that governmental entities may not be held liable under federal wiretapping law" } ], "opinion_index": 0, "case_paths": [ "/f-supp/829/0998-01" ] }, { "cite": "205 F.3d 976", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11461004 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "980-81" }, { "page": "980-81" } ], "opinion_index": 0, "case_paths": [ "/f3d/205/0976-01" ] }, { "cite": "832 F. Supp. 808", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3820829 ], "year": 1993, "pin_cites": [ { "page": "822-23" } ], "opinion_index": 0, "case_paths": [ "/f-supp/832/0808-01" ] }, { "cite": "179 F.3d 420", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 844383 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/f3d/179/0420-01" ] }, { "cite": "959 F. Supp. 813", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 883458 ], "year": 1997, "pin_cites": [ { "page": "819-20" } ], "opinion_index": 0, "case_paths": [ "/f-supp/959/0813-01" ] }, { "cite": "130 F. Supp. 2d 1370", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 11136786 ], "year": 2001, "pin_cites": [ { "page": "1374-75" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/130/1370-01" ] }, { "cite": "129 L. Ed. 2d 813", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "512 U.S. 1207", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 39776, 39937, 39202, 39399, 39949, 39506, 39218, 39732, 39320, 39897, 39227, 39645, 39423 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/us/512/1207-01", "/us/512/1207-13", "/us/512/1207-04", "/us/512/1207-10", "/us/512/1207-07", "/us/512/1207-06", "/us/512/1207-02", "/us/512/1207-03", "/us/512/1207-12", "/us/512/1207-05", "/us/512/1207-11", "/us/512/1207-08", "/us/512/1207-09" ] }, { "cite": "18 F.3d 91", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10502608 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "94-95" }, { "page": "94-95" } ], "opinion_index": 0, "case_paths": [ "/f3d/18/0091-01" ] }, { "cite": "18 U.S.C.A. \u00a7 2520", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2003, "pin_cites": [ { "page": "(a)", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "115 Stat. 272", "category": "laws:leg_session", "reporter": "Stat.", "year": 2001, "opinion_index": 0 }, { "cite": "250 F.3d 980", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11102119 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "982" }, { "page": "985-86" }, { "page": "985" } ], "opinion_index": 0, "case_paths": [ "/f3d/250/0980-01" ] }, { "cite": "100 Stat. 1848", "category": "laws:leg_session", "reporter": "Stat.", "year": 1986, "opinion_index": 0 }, { "cite": "18 U.S.C. \u00a7 2510", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "pin_cites": [ { "page": "(6)" } ], "opinion_index": 0 }, { "cite": "18 U.S.C. \u00a7 2520", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "82 Stat. 223", "category": "laws:leg_session", "reporter": "Stat.", "year": 1968, "opinion_index": 0 }, { "cite": "528 U.S. 62", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9476145 ], "weight": 5, "year": 2000, "pin_cites": [ { "page": "73" }, { "page": "535" }, { "page": "80" }, { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/us/528/0062-01" ] }, { "cite": "527 U.S. 706", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1248280 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "712", "parenthetical": "holding that sovereign immunity shields States from private suits in state courts pursuant to federal causes of action" }, { "page": "652", "parenthetical": "holding that sovereign immunity shields States from private suits in state courts pursuant to federal causes of action" } ], "opinion_index": 0, "case_paths": [ "/us/527/0706-01" ] }, { "cite": "561 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 292", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219987, 220132, 219965, 220110 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0292-04", "/nc/355/0292-02", "/nc/355/0292-03", "/nc/355/0292-01" ] }, { "cite": "556 S.E.2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "40" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 336", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9379559 ], "year": 2001, "pin_cites": [ { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0336-01" ] }, { "cite": "585 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491680, 491908, 491631, 491892, 491541, 491830 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0457-02", "/nc/357/0457-03", "/nc/357/0457-05", "/nc/357/0457-06", "/nc/357/0457-04", "/nc/357/0457-01" ] }, { "cite": "576 S.E.2d 726", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "728" }, { "page": "729" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 371", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9190695 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "374" }, { "page": "375" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0371-01" ] } ], "analysis": { "cardinality": 949, "char_count": 21335, "ocr_confidence": 0.758, "pagerank": { "raw": 5.886585119628046e-08, "percentile": 0.3687635842861881 }, "sha256": "e2155d5a5ef20ec8cb45fede61f1b6a84abf2b674c21a97c7e1d0a25d8a4a4e2", "simhash": "1:9fd6943a766d8357", "word_count": 3248 }, "last_updated": "2023-07-14T15:27:37.331987+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and ELMORE concur." ], "parties": [ "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 UNIVERSITY, Defendants" ], "opinions": [ { "text": "WYNN, Judge.\nBy this appeal, defendants North Carolina State University (\u201cNCSU\u201d), Jeff Mann (\u201cMann\u201d), George Worsley (\u201cWorsley\u201d), Dave Rainer (\u201cRainer\u201d), and Thomas Younce (\u201cYounce\u201d) (collectively hereinafter \u201cDefendants\u201d) contend the trial court erred in denying their motion to dismiss claims brought by Plaintiff Ginger Huber (\u201cPlaintiff\u2019)- 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 Plaintiffs claims against Mann, Worsley and Rainer. In a cross-appeal, defendant Ralph Harper (\u201cHarper\u201d) argues the trial court erred in denying his motion to dismiss, in that (I) Plaintiffs complaint failed to name Harper in his individual capacity; (II) the doctrine of qualified immunity bars Plaintiffs claims; and (III) public official immunity bars Plaintiffs claims. After careful consideration, we affirm the orders of the trial court.\nOn 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\u2019s 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 (\u201cDepartment of Public Safety\u201d). During her orientation, Plaintiff was never notified that any telephone lines within the Department of Public Safety\u2019s offices were recorded. Two months later, however, fellow employees informed Plaintiff of the existence of a \u201cDigital Audio Tape\u201d 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\u2019s telephone in the evenings and did not want to record his own conversations.\nIn November of 1998, Harper issued a departmental \u201cStandard Operating Procedure\u201d entitled \u201cDownloading Telephone Calls and Radio Transmissions from the [Digital Audio Tape] Recorder.\u201d 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 conduct.\nIn late 1999 and early 2000, Plaintiff became aware that, despite Harper\u2019s 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.\nOn 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.\nIn her amended complaint, Plaintiff set forth claims against Defendants and Harper for violations of (1) federal wiretapping law; (2) Plaintiff\u2019s right to privacy under the Fourth and Fourteenth Amendments to the United States Constitution; (3) State wiretapping law; and (4) Plaintiff\u2019s rights under Article I, sections 19 and 20 of the North Carolina Constitution. Defendants and Harper filed motions to dismiss Plaintiff\u2019s complaint, which motions the trial court granted in part and denied in part. Defendants and Harper appealed.\nAs 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 Plaintiffs claims. We therefore address the merits of those arguments set forth by Defendants and Harper concerning immunity.\nIn 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 Plaintiffs 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.\n18 U.S.C. Section 2520(a)\nCongress 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, \u00a7802, 82 Stat. 223 (1968). Section 2520(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 \u201cperson\u201d responsible for such violations. See 18 U.S.C. \u00a7 2520(a) (2000). The term \u201cperson\u201d under section 2520(a) is defined as \u201cany 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.\u201d 18 U.S.C. \u00a7 2510(6) (2000).\nIn 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 \u201cor entity\u201d following \u201cperson,\u201d allowing for civil action against \u201cthe person or entity which engaged in [the] violation.\u201d However, Congress did not expressly define the term \u201centity\u201d.\nFinally, section 2520(a) was again amended in 2001 by the USA Patriot Act, which added the phrase \u201cother than the United States\u201d following \u201cperson or entity.\u201d 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 \u201cany 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.\u201d 18 U.S.C.A. \u00a7 2520(a) (West Supp. 2003) (emphasis added). The question for this Court is whether the term \u201centity\u201d includes governmental entities, which would signal that the statute abrogates their sovereign immunity\nPlaintiff asserts Congress abrogated State sovereign immunity by adding the term \u201centity\u201d to those liable to suit. Defendants contend the statutory language does not express an \u201cunequivocal intention\u201d 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. 2d 1370, 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 \u201centity\u201d to those against whom a suit could be pursued under section 2520(a), Congress could have only meant \u201cgovernmental entities,\u201d inasmuch as the term \u201cperson\u201d 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.\nThe 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 \u201c[s]ection 2520(a) expressly provides that municipal entities may be held liable for violations of the Federal Wiretapping Act\u201d), affirmed, 108 F.3d 1379 (7th Cir. 1997). The Court in Abbott concluded that the plain meaning of the term \u201cperson\u201d as defined by section 2510(6) did not include governmental entities, and therefore governmental entities were immune from suit. Abbott, 205 F.3d at 980-81.\nWe agree with the United States Courts of Appeals for the Second and Sixth Circuits that the term \u201centity\u201d necessarily means governmental entities. A contrary decision renders the term \u201centity\u201d superfluous. See Adams, 250 F.3d at 985; Organizacion JD LTDA., 18 F.3d at 94-95. The definition of \u201cperson\u201d includes \u201cpartnership, association, joint stock company, trust or corporation;\u201d i.e., business entities. If the term \u201cbusiness entity\u201d is substituted for the word \u201cperson,\u201d then recovery is possible under section 2520(a) from \u201cthe business entity or entity.\u201d Unless the term \u201centity\u201d denotes governmental entities, the phrase is redundant and nonsensical. The addition of the phrase \u201cother than the United States\u201d 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 \u201cother than the United States.\u201d We conclude that, by adding the term \u201centity\u201d to section 2520(a), Congress expressed its clear intent to create civil liability for governmental \u00e9ntities.\nHaving 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 Congress the authority to abrogate the States\u2019 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).\nDefendants assert that the federal wiretapping law was drafted pursuant to authority granted to Congress imder 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. \u00a7 2511(l)(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.ll (stating that, \u201c[s]o holding, we need not decide whether the other constitutional bases advanced by the government would suffice\u201d). 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 the Fourteenth Amendment\u2019s 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).\nWe 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 Plaintiffs 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.\nQualified Immunity\nDefendants and Harper further contend they are entitled to qualified immunity from Plaintiffs federal and constitutional claims. Under the doctrine of qualified immunity, \u201cgovernment 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 of which a reasonable person would have known.\u201d 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\u2019s 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, \u201cthe next, sequential step is to ask whether the right was clearly established.\u201d Id. \u201cThe 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.\u201d Id. at 202, 150 L. Ed. 2d at 282.\nIn her complaint, Plaintiff alleged that Harper intentionally recorded her personal telephone calls for illicit and \u201cpersonal purposes and not for any investigative or law enforcement purposes.\u201d The complaint also denied that such recording was conducted in the ordinary course of business. Plaintiff further alleged that Defendants \u201cencouraged, ratified, or knowingly acquiesced in the actions of Defendant Harper.\u201d These allegations are sufficient to demonstrate a violation of Plaintiff\u2019s constitutional and statutory right to privacy. We must therefore determine whether Plaintiff\u2019s right to privacy was clearly established at the time.\nDefendants and Harper argue that Harper could not have known that his actions violated Plaintiff\u2019s 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 \u201c \u2018may require factual determinations respecting disputed aspects of the officer\u2019s conduct.... Thus, if there are genuine issues of historical fact respecting the officer\u2019s conduct or its reasonableness under the circumstances, summary judgment is not appropriate, and the issue must be reserved for trial\u2019 \u201d) (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)).\nPublic Official Immunity\nHarper contends he is also entitled to public official immunity from Plaintiffs 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\u2019s motion to dismiss on this issue.\nDefendants 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,\nAffirmed.\nJudges TIMMONS-GOODSON and ELMORE concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "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." ], "corrections": "", "head_matter": "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 UNIVERSITY, Defendants\nNo. COA03-145\n(Filed 20 April 2004)\n1. Appeal and Error\u2014 appealability \u2014 interlocutory order\u2014 sovereign immunity\nIssues of immunity affect a substantial right and warrant immediate review.\n2. Telecommunications\u2014 wiretapping \u2014 federal statute \u2014 abrogation of state sovereign immunity\nThe 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 immunity.\n3. Telecommunications\u2014 wiretapping \u2014 state university public safety director \u2014 qualified immunity\nThe trial court properly denied defendant\u2019s 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.\n4. Telecommunications\u2014 wiretapping university employees\u2014 public official immunity \u2014 scope of duties\nThe trial court properly denied a motion to dismiss claims arising from the recording of personal telephone recordings by a university\u2019s public safety director where defendant claimed public official immunity, but there were issues as to whether the director was acting outside the scope of his duties.\nAppeal 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.\nMoore & Van Allen, PLLC, by Reed J. Hollander and Ellis & Winters, LLP, by Jonathan D. Sasser, for plaintiff appellee.\nAttorney 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.\nAttorney General Roy Cooper, by Assistants Attorney General Deborrah L. Newton and William McBlief for defendant appellant Ralph Harper." }, "file_name": "0638-01", "first_page_order": 668, "last_page_order": 676 }