Council On American Islamic Relations v. Ballenger

• Citation: 444 F.3d 659
• Decision Date: 11 April 2006
• Docket Number: No. 05-5161.,05-5161.
• Parties: COUNCIL ON AMERICAN ISLAMIC RELATIONS, Appellant v. Cass BALLENGER, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

444 F.3d 659

COUNCIL ON AMERICAN ISLAMIC RELATIONS, Appellant v. Cass BALLENGER, Appellee.

No. 05-5161.

United States Court of Appeals, District of Columbia Circuit.

Argued March 17, 2006.

Decided April 11, 2006.

Jeremiah A. Denton, III argued the cause for appellant. With him on the briefs was Michael C. Zisa.

Peter D. Blumberg, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Kenneth L. Wainstein, U.S. Attorney, and Michael J. Ryan, Assistant U.S. Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: SENTELLE, ROGERS and GRIFFITH, Circuit Judges.

Opinion for the Court filed PER CURIAM.

PER CURIAM.

In this defamation action, we consider whether a congressman acted "within the scope of employment" when he discussed his marital status in his office, during regular business hours, in response to a reporter's inquiries. The District Court held that he did, and we agree. We therefore affirm the District Court's conversion of the case into an action against the United States pursuant to the procedures set forth in the Federal Employees Liability Reform and Tort Compensation Act of 1988 ("Westfall Act"), 28 U.S.C. § 2679, and its dismissal of the suit for lack of subject matter jurisdiction because the United States has not waived its sovereign immunity. See id. § 2680(h).

I. Factual Background

Cass Ballenger served as United States Representative for North Carolina's Tenth Congressional District from 1986 to 2005. In August 2003, the Charlotte Observer, a newspaper of wide circulation in Ballenger's district, profiled Ballenger in an article describing his background, interests, and legislative stances. The piece made no mention, however, of Ballenger's recent separation from his wife. After the article was published, a reader contacted its author, one Tim Funk, to ask why it was silent on Ballenger's marital status. Believing that at least some of his readership was interested in the separation, Funk decided to address it when he next wrote a story on Ballenger.

That opportunity arose about a month later. On September 30, 2003, Funk contacted Ballenger's office seeking information for a new article to be published the following week. Ballenger was unavailable, so his chief of staff, Dan Gurley, fielded the call. The conversation lasted about thirty minutes, taking place during regular business hours while Gurley was working in Ballenger's office suite on Capitol Hill. It focused on legislative issues — particularly trade and textiles — that were of interest to Congressman Ballenger and his constituents. Near the end of the interview, Funk asked about Ballenger's separation from his wife. Gurley confirmed that the separation had occurred, adding that it was amicable.

After the interview, Gurley related the substance of the conversation to Ballenger, who decided to follow up with Funk "for the following reasons":

I pride [myself] on my reputation in my district as a straight-talking businessman rather than a politician, and I was acutely aware that my ability to continue advancing my legislative agenda in Congress and to effectively represent my district depended on the continued trust and respect of my constituents. I also knew that reports about my marital status would be of concern in my socially conservative district. Moreover, as a veteran member of the House, I was acutely aware that a public scandal related to my marital status could undercut my ability to carry out these responsibilities, both in the near-term and in the long-term if it were to become an issue in a future re-election campaign. (At that time, I had not yet determined whether I would seek reelection in November 2004 . . . .) In short, I determined to clarify with Mr. Funk the state of my family situation in order to defuse an issue that could affect my representational responsibilities to my district and/or inhibit my long-term ability to continue advancing my legislative agenda in Congress.

App. 23-24.

With these objectives in mind, Ballenger called Funk from his congressional office during regular business hours on October 1, 2003. During the fifteen-minute conversation, Ballenger elaborated on the reasons why he and his wife had separated, chief among them being his wife's dissatisfaction with life in Washington, D.C. In particular, Ballenger explained that his wife became increasingly uncomfortable living across the street from the headquarters of the Council on American-Islamic Relations ("CAIR") after the September 11th attacks. During the course of this explanation, Ballenger stated that CAIR was the "fund-raising arm for Hezbollah." The United States Department of State has designated Hezbollah a foreign terrorist organization pursuant to 8 U.S.C. § 1189.

Ballenger's comment was republished in newspapers and electronically throughout the United States. CAIR, a nonprofit NGO whose stated goal is to promote a positive image of Islam in the United States and empower the American Muslim community, sued Ballenger for defamation and slander about two months later.

II. Legal Background

A. The Westfall Act

In Westfall v. Erwin, the Supreme Court held that federal officials are generally immune from state tort lawsuits for money damages if their conduct was both within the scope of employment and discretionary in nature. 484 U.S. 292, 299, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988). Congress apparently deemed this standard too exacting. It swiftly enacted the Westfall Act, which eliminates Westfall's "discretionary" requirement and prescribes "that federal employees' immunity from state tort lawsuits for money damages hinges exclusively on whether they were acting within the scope of employment during the alleged incident." Haddon v. United States, 68 F.3d 1420, 1422-23 (D.C.Cir. 1995). In pertinent part, the Act provides:

Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.

28 U.S.C. § 2679(d)(1) (emphasis added).

"[T]he Attorney General's certification that a federal employee was acting within the scope of his employment . . . does not conclusively establish as correct the substitution of the United States as defendant in place of the employee." Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995). But it does constitute prima facie evidence that the employee was acting within the scope of his employment. See Kimbro v. Velten, 30 F.3d 1501, 1509 (D.C.Cir.1994). "[A] plaintiff challenging the government's scope-of-employment certification bears the burden of coming forward with specific facts rebutting the certification." Stokes v. Cross, 327 F.3d 1210, 1214 (D.C.Cir.2003) (internal quotation marks and citation omitted). Once a court determines that the federal employee acted within the scope of employment, the case is, inter alia, restyled as an action against the United States that is governed by the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. See Haddon, 68 F.3d at 1423.

B. D.C. Scope-of-Employment Law

Under the Westfall Act, courts apply the respondeat superior law in the state in which the alleged tort occurred. See Stokes, 327 F.3d at 1214. District of Columbia law, which applies in this case, follows the RESTATEMENT (SECOND) OF AGENCY (1958) ("Restatement") in defining scope of employment. Moseley v. Second New St. Paul Baptist Church, 534 A.2d 346, 348 n. 4 (D.C.1987). The Restatement provides:

(1) Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits;

(c) it is actuated, at least in part, by a purpose to serve the master, and

(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

Restatement § 228. "[T]he test for scope of employment is an objective one, based on all the facts and circumstances." Weinberg v. Johnson, 518 A.2d 985, 991 (D.C. 1986) ("Weinberg"). Although scope of employment is generally a question for the jury, it "becomes a question of law for the court, however, if there is not sufficient evidence from which a reasonable juror could conclude that the action was within the scope of the employment." Boykin v. District of Columbia, 484 A.2d 560, 562 (D.C.1984) (collecting cases).

Because CAIR does not dispute that Ballenger made the statement in question while in his office during work hours — if indeed there are such limitations on a Representative's work — and because there are no allegations of force, only the first and third of section 228(1)'s elements are at issue in this case. Consistent with the Restatement's use of the conjunctive, both remaining prongs must favor Ballenger if we are to find that he acted within the scope of employment. See Haddon 68 F.3d at 1424 (citations omitted).

III. The District Court's Decision

CAIR sued Congressman Ballenger for defamation in the United States District Court for the District of Columbia on December 2, 2003. On February 5, 2004, Mark E. Nagel, then Civil Chief of the U.S. Attorney's Office for the District of Columbia, certified that Ballenger acted within the scope of his employment as an employee of the United States when he made the allegedly defamatory statement. See 28 U.S.C. § 2679(d); 28 C.F.R. § 15.3(...