Whilе their divorce proceeding was pending, a husband put a recording device on a telephone in the marital home. The device recorded a number of conversations between his wife and third parties without the consent of any party to the conversations. She discovered the device and filed a lawsuit against her husband. In contrast to her husband’s successful effort to obtain a divorce, the wife’s lawsuit against him for covertly recording her conversations with others has not succeeded thus far.
The federal claim alleged in the wife’s lawsuit is based on the wiretapping provisions of Title III of the Omnibus Crime Control and Safe Streets Act of. 1968, 18 U.S.C. §§ 2510-22. Parts of that Act outlaw non-consensual recordings of private conversations, subject tо certain specified exceptions, and authorize civil remedies on behalf of those who suffer violations of the statutory provisions. The plain language of the statute prohibits “any person” from making recordings of private conversations in which no party consents and authorizes “any person” whose conversation is recorded in violation of the рrohibition to recover damages. Despite those clear statutory provisions,
Simpson v. Simpson,
Applying the Simpson decision in this case, the district court dismissed the wife’s Title III claim against her husband. We think it clear that the district court was required to take that action by the Simpson decision, and just as clear that the Simpson decision is wrong. It ought to be overruled, and we would if we could.
I. BACKGROUND
James and Elisabeth Glazner were married in July of 1980. James filed for divorce in February of 1999. Before the divorce was finalized on June 6, 2000, but while he was still living with Elisabeth, James bought a recording device from Radio Shack, attached it to a phone line in *1300 the marital home, and hid the device underneath an oak display case. The next day he left on a trip. While he was gone, his wife used the phone and her conversations with others were recorded without thе consent of any party to the conversations. (The nature of the conversations that were recorded is not disclosed in the record.)
During one of those conversations, Elisabeth Glazner noticed the phone “sounded hollow” which prompted her to check all of the phones in the house. The resulting search turned up the recording device. She removed the tape and took it to her neighbors to see if they knew how to erase it. They advised her to keep the tape as it was, which she did. She called the police, who came and removed the recording device from the telephone line.
Before the divorce was finalized, Elisabeth Glazner filed suit against James in the United States District Court for the Northern Distriсt of Alabama, claiming that he had violated her rights under 18 U.S.C. § 2511 by recording her telephone conversations with other parties without consent, and seeking damages from him under 18 U.S.C. § 2520. The Simpson decision read an interspousal exemption into those provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, and it was on that basis the district court entered summary judgment against Elisabeth on her sole federal claim. She also had a number of state law claims which the district court dismissed without prejudice under 28 U.S.C. § 1367(c).
II. DISCUSSION
Elisabeth Glazner argues that her case is distinguishable from
Simpson
because James had already filed for divorce when he recorded her conversations, while in the
Simpson
case neither party filed for divorce until after the recording occurred.
1
In support of her argument, Elisabeth points out that the
Simpson
opinion expressly limits its holding to the facts presented in that case: “Our decision is, of course, limited to the specific facts of this case.”
*1301 Having studied the Simpson decision carefully, we agree with that panel’s own appraisal of the rule established by the results of the аppeal read against the facts of that case. The rule of the Simpson decision is that there is an interspousal exemption to Title Ill’s prohibitions against non-consensual recordings, at least where the recording device is attached to a phone in the marital home and no outside parties are involved in making the recording. The fact that a divorcе proceeding was not pending at the time of the recording in Simpson is not necessary to the result in that case, either from any indication in the opinion itself or logically. If preservation of marital peace and harmony were the rationale of Simpson, there would be little point to the result reached, because when the lawsuit in that case was filed the partiеs were already divorced. That case and this one illustrate the obvious about the state of matrimony in these kind of cases: by the time one spouse gives the other a basis for a Title III claim it is all over but the shouting, and there has probably been a good bit of that, too.
James Glazner, like John Simpson, recorded his wife’s conversations over a phone line in the home where the two of them were living together and sharing a common phone line, and while they were still married. Under the Simpson decision, James’ actions did not violate 18 U.S.C. § 2511, so Elisabeth may not recover any damages from him under 18 U.S.C. § 2520.
Elisabeth Glazner argues that the
Simpson
decision ought to be overruled. We as a panel cannot do that. Under the prior panel precedent rule we, no less than the district court, are bound to follow the
Simpson
decision unless and until it is overruled by this Court sitting en banc or by the Supreme Court.
Saxton v. ACF Indus., Inc.,
Although we are bound by the prior panel precedent rule to follow
Simpson
regardless of our misgivings about it, we are not required to agree with that decision,
see, e.g., Saxton v. ACF Indus., Inc.,
The plain language of Title III clearly encompasses the fаctual circumstances of this case, it manifestly forbids what James Glazner did to Elisabeth Glazner, and it unequivocally gives her a cause of action against him. The pertinent provisions state that: “[ejxcept 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” violates the Act. 18 U.S.C. § 2511(l)(a) (emphasis added). It is undisputed that none of the statutory exceptions referred to in the introductory clause
*1302
of that provision applies in this ease.
See also Simpson,
The language of Title III makes no distinction between married and unmarried persons, between spouses and strangers. It plainly applies to “any person” on bоth sides of the violation (save only the inapplicable exceptions). We have repeatedly held that the word “any” is unambiguous, noting the Supreme Court’s observation in
United States v. Gonzales,
The
Simpson
court did not pretend otherwise about the plain meaning of the statutory language. It recognized that “the naked language of Title III, by virtue of its inclusiveness, reaches this case.”
“[W]e must presume that Congress said what it meant and meant what it said.”
Steele,
The one exception to the plain language doctrine, the one circumstance in which a court may properly look beyond what Congress has said with clarity, is where giving effect to the plain language Congress used would lead to a truly absurd result.
United States v. Maung,
The
Simpson
court did not stop with the plain language of Title III as it should have, but after acknowledging the inescapable meaning of that language, it proceeded to attempt an escape based upon its own view that regardless of what Congress had said, “Congress did not intend such a far reaching result, one extending into areas normally left to states, those of the marital home and domestic conflicts.”
Even though each specific discussion of the matter it could find in the legislative history lends no support to its theory, аnd actually seems to point the other way, the Simpson court still concluded that Congress did not mean what it said because the legislative history does not sufficiently corroborate, in that court’s view, the plain meaning of the statutory language Congress chose to express its intent. See id. at 809 (acknowledging that statements in the legislative history “suggest congressional awareness that private individuals were using electronic surveillance techniques within their own homes,” but concluding that “they do not support the proposition that Congress was concerned that such activities took place”). The Simpson court essentially reasoned that Congress did not intend what it said in the statute because it did not say the same thing with equal clarity in the legislative history. See id. at 805. That reasoning turns legislative interpretation upside down. There is *1304 no requirement that Congress, in order to prevent judicial re-writing of statutes, must not only speak in a clear and straightforward manner in statutes but must also lard the legislative history with statements proving that it really, really did mean what it said in each statute. It is not the function of the judiciary to determine whether Congress has devoted enough thought and сonsideration to what it has enacted. We are to apply statutes, not reconsider them.
Towards the end of its opinion, the
Simpson
court put forward two “other considerations” to justify its decision. Neither one does. The first “other consideration” is that Title III provides an exception from its provisions for a telephone “being used by the subscriber or user in the ordinary course of its business,” by excluding those telеphones from the definition of an “electronic, mechanical, or other device.” 18 U.S.C. § 2510(5)(a)(i);
see Simpson,
Nonetheless, the
Simpson
court thought the § 2510(5)(a)(i) exception, although not applicable, was “indicative of Congress’s intention to abjure from deciding a very intimate question of familial relations, that of the extent of privacy family members may expect within the home vis-a-vis each other.”
The second “other consideration” the
Simpson
opinion proffers is that criminal statutes should be strictly construed, a canon of construction known as the rule of lenity.
Id.
But the rule of lenity applies only where there is an ambiguity in the statute; it cannot be employed to override clear statutory lаnguage.
See United States v. Ortega-Torres,
Simpson
was the first federal court of appeals decision in the country to address the issue of whether Title Ill’s prohibitions apply to electronic eavesdropping between spouses using a telephone found in the marital home. A clear majority of courts to address the issue since then have disagreed with
Simpson. See Heggy v. Heggy,
That the Simpson decision has managed to survive as the law of this circuit for nearly three decades shows that inertia is more than just a law of physics. The time has come to overturn that decision, and rehearing en banc should be granted in this case for that purpose. Until then, we are required to affirm the district court’s grant of summary judgment against Elisabeth Glazner. 2
AFFIRMED.
Notes
. It is not entirely clear from the
Simpson
opinion that a divorce proceeding was not already underway at the time the recordings were made in that case. The opinion says that after he mаde the recordings the husband “played them for a lawyer, on whose advice the wife agreed to an uncontested divorce.”
. We express no opinion on whether, if en banc rehearing is granted and the
Simpson
decision is overturned, the new rule ought to be applied in this case or prospectively only.
See generally Wagner v. Daewoo,
No. 01-11998,