18 U S C 2520 - Wiretap Claim Attorney's Fees
18 U.S.C. 2520 (1993) allows a person to recover attorney's fees and other litigation costs associated with successfully pursuing a wiretap claim.
However, the question as to whether fees and costs are mandatory is a question of first impression in North Carolina.
Since we have no case law of our own State or the United States Supreme Court to guide us, we turn to the plain language of the statute and the persuasive authority of the Federal Circuit Courts.
18 U.S.C. 2520 (1993) reads
(a) In general.--Except as provided in section 2511(2)(a)(ii), any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity which engaged in that violation such relief as may be appropriate.
(b) Relief.--In an action under this section, appropriate relief includes (1) such preliminary and other equitable or declaratory relief as may be appropriate; (2) damages under subsection (c) and punitive damages in appropriate cases; and (3) a reasonable attorney's fee and other litigation costs reasonably incurred.
Subsection 2520(a) provides that the victim of a violation of the Electronic Communications Privacy Act may recover from the person or entity which engaged in that violation such relief as may be appropriate.
Subsection 2520(b)(3) allows the recovery of attorney's fees and other litigation costs reasonably incurred. the plain language of 2520 provides that a successful party may collect attorney's fees and litigation costs--it does not require such an award.
We conclude that since the statute does not require an award of attorney's fees or litigation costs, such an award is within the discretion of the trial court. Accordingly, we will overturn a trial court's award only upon a showing of an abuse of discretion.
We are supported in setting this standard of review by the holdings of the limited numberof federal cases which have reviewed the application of 2520(b)(3). In Culbertson v. Culbertson, 143 F.3d 825 (4th Cir. 1998), the United States Court of Appeals for the Fourth Circuit reviewed a case involving 18 U.S.C. 2520.
Although that case dealt with a subsection of 2520 not presently before us, the Court also set forth the standard of review for awards under 2520(b)(3).
The Court held that orders for attorney's fees and costs under 2520(b)(3) were subject to an abuse of discretion standard of review. See id. at 827.
Two other United States Circuit Courts have addressed the issue of whether 2520(b)(3) makes attorney's fees and costs mandatory, or whether such an award is within the discretion of the trial court.
The United States Court of Appeals for the Sixth Circuit and the United States Court of Appeals for the Eighth Circuit have both held that the award of fees and costs is within the sound discretion of the trial court, and an award will not be altered absent a showing of an abuse of discretion.
See Dorris v. Absher, 179 F.3d 420 (6th Cir. 1999); Bess v. Bess, 929 F.2d 1332 (8th Cir. 1991); Morford v. City of Omaha, 98 F.3d 398 (8th Cir. 1996).
See also Shaver v. Shaver, 799 F. Supp. 576 (E.D.N.C. 1992) (holding that the trial court has discretion whether to award costs and attorney's fees for violations of 18 U.S.C. 2520(b)(3)).