Council on American Islamic Relations v. Ballenger

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 17, 2006 Decided April 11, 2006

No. 05-5161

COUNCIL ON AMERICAN ISLAMIC RELATIONS,

APPELLANT

v.

CASS BALLENGER,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 03cv02488)

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.

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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

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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

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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

(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:

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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 (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

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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

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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(a). Based on this certification, the United

States moved to dismiss on the theory that its name should be

substituted for Ballenger’s and that the case should be dismissed

as barred by sovereign immunity.

Both parties briefed the scope of employment issue and

conducted limited discovery. On March 29, 2005, the District

Court ruled that Ballenger was acting within the scope of his

employment when he uttered the statement in question. “To say

the least,” the court wrote, “speaking to the press is a critical

part of the expected and authorized conduct of a United States

Congressman.” Relying on Ballenger’s affidavit, the court also

found that he “was acting, at least in part, for the purpose of

preserving his effectiveness” as a congressman. Accordingly,

it upheld the Government’s certification, concluding that the

United States was properly substituted as a defendant and that

the case should be dismissed for lack of jurisdiction because the

United States had not waived sovereign immunity under the

FTCA. CAIR filed this appeal.

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IV. Legal Analysis

CAIR argues that Ballenger’s statement fell outside the

scope of his employment because it was neither conduct “of the

kind he is employed to perform,” Restatement § 228(1)(a), nor

was it “actuated, at least in part, by a purpose to serve the

master,” id. § 228(1)(c). The District Court’s legal conclusion

that Ballenger was acting within the scope of his employment is

subject to de novo review. See Hoston v. Silbert, 681 F.2d 876,

879 (D.C. Cir. 1982).

Under section 228(1)(a), CAIR maintains that Ballenger’s

allegedly defamatory statement itself was not conduct of the

kind he is employed to perform. This argument rests on a

misunderstanding of D.C. scope-of-employment law (not to

mention the plain text of the Westfall Act), which directs courts

to look beyond alleged intentional torts themselves. The proper

test has two disjunctive parts: “To qualify as conduct of the

kind he was employed to perform, the [defendant’s] actions

must have either been ‘of the same general nature as that

authorized’ or ‘incidental to the conduct authorized.’” Haddon,

68 F.3d at 1424 (quoting Restatement § 229) (emphasis added).

CAIR’s argument ignores the latter half of the test. If we

accepted its position, numerous D.C. agency-law decisions

would make no sense. See, e.g., Johnson v. Weinberg, 434 A.2d

404, 409 (D.C. 1981) (“Johnson”) (holding that a reasonable

juror could find that a laundromat employee acted within scope

of employment when he shot a customer during a dispute over

missing shirts); Lyon v. Carey, 533 F.2d 649, 652 (D.C. Cir.

1976) (holding that jury reasonably found that a mattress

deliveryman acted within scope of employment when he

assaulted and raped a customer following a delivery-related

dispute); see also Brown v. Argenbright Sec., Inc., 782 A.2d

752, 758 (D.C. 2001) (rejecting as “too broad” a rule that sexual

assaults are categorically outside the scope of employment).

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The proper inquiry in this case “focuses on the underlying

dispute or controversy, not on the nature of the tort, and is broad

enough to embrace any intentional tort arising out of a dispute

that was originally undertaken on the employer’s behalf.”

Weinberg, 518 A.2d at 992 (citations and internal quotation

marks omitted). Here, the “underlying dispute or controversy”

was the phone call between Ballenger and Funk discussing the

marital separation. The appropriate question, then, is whether

that telephone conversation—not the allegedly defamatory

sentence—was the kind of conduct Ballenger was employed to

perform. Cf. Haddon, 68 F.3d at 1424-25 (the touchstone of §

228(1)’s first prong is whether “employees’ intentional torts . . .

arise directly from the performance of their authorized duties”);

accord Penn Cent. Transp. Co. v. Reddick, 398 A.2d 27, 29-31

(D.C. 1979).

We hold that it was. Speaking to the press during regular

work hours in response to a reporter’s inquiry falls within the

scope of a congressman’s “authorized duties.” See, e.g.,

Operation Rescue Nat’l v. United States, 975 F. Supp. 92, 108-

09 (D. Mass. 1997) (A senator’s allegedly defamatory “response

to questions posed by the media” immediately following a

fundraiser falls within the scope of his employment.), aff’d, 147

F.3d 68, 71 (1st Cir. 1998). Cognizant that under D.C. law, this

prong is “liberally construe[d],” Stokes, 327 F.3d at 1216

(citations omitted), we hold that Ballenger’s allegedly

defamatory statement was incidental to the kind of conduct he

was employed to perform.

CAIR resists this conclusion on two grounds. First, it

insists that Ballenger’s statement was purely private, unrelated

to any matter of public concern. The circumstances of the

conversation belie this suggestion. The Charlotte Observer and

at least some subset of Ballenger’s constituents were interested

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in the separation. Given this level of public interest, we find

CAIR’s absolutist view at odds with reality. Moreover, it is

telling that Funk felt at liberty to ask Gurley—rather than

Ballenger himself—about the marital separation.

CAIR also asserts that Ballenger’s conversation was

“simply too remote from any congressional duty” to fall within

the scope of employment. CAIR would presumably have us

limit a congressman’s appropriate conduct to core legislative

functions such as drafting and lobbying for legislation. We

reject that view as far too cramped. “[T]he legislative duties of

Members of Congress are not confined to those directly

mentioned by statute or the Constitution. Besides participating

in debates and voting on the Congressional floor, a primary

obligation of a Member of Congress in a representative

democracy is to serve and respond to his or her constituents.”

Williams v. United States, 71 F.3d 502, 507 (5th Cir. 1995)

(holding that a congressman’s allegedly defamatory remarks in

an interview were within the scope of employment); Chapman

v. Rahall, 399 F. Supp. 2d 711, 714 (W.D. Va. 2005) (A

congressman’s “remarks, made to the media to ensure his

effectiveness as a legislator, can fairly and reasonably be

deemed to be an ordinary and natural incident or attribute of his

job as a legislator.” (internal quotation marks and citations

omitted)); cf. United States v. Brewster, 408 U.S. 501, 512

(1972) (describing as “entirely legitimate” a “wide range” of

“activities other than purely legislative activities,” including

“‘news letters’ to constituents, news releases, and speeches

delivered outside the Congress”).

Turning to section 228(1)(c), CAIR claims that Ballenger’s

statement was not “actuated, even in part, to serve the master.”

As with the first prong, CAIR faces an uphill battle: The

Restatement’s text reveals that even a partial desire to serve the

master is sufficient. Restatement § 228(1)(c). In his affidavit,

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Ballenger proffered several reasons for discussing his

separation. He wanted to maintain the “continued trust and

respect of [his] constituents” in order to preserve his “ability to

carry out [his legislative] responsibilities, both in the near-term

and in the long-term.” App. 23-24. Put another way, Ballenger

followed up with Funk to “defuse an issue that could affect [his]

representational responsibilities to [his] district and/or inhibit

[his] long-term ability to continue advancing [his] legislative

agenda in Congress.” Id. at 24. We agree with the District

Court that Ballenger’s conduct was motivated—at least in

part—by a legitimate desire to discharge his duty as a

congressman. See Rahall, 399 F. Supp. 2d at 715 (A

congressman’s “remarks, made to the media to ensure his

effectiveness as a legislator, can ‘fairly and reasonably be

deemed to be an ordinary and natural incident or attribute’ of his

job as a legislator.” (citation omitted)).

A Member’s ability to do his job as a legislator effectively

is tied, as in this case, to the Member’s relationship with the

public and in particular his constituents and colleagues in the

Congress. In other words, there was a clear nexus between the

congressman answering a reporter’s question about the

congressman’s personal life and the congressman’s ability to

carry out his representative responsibilities effectively. To that

extent, “service in the United States Congress is not a job like

any other.” United States v. Rostenkowski, 59 F.3d 1291, 1312

(D.C. Cir. 1995).

Finally, CAIR protests that a holding in favor of Ballenger

“would immunize many federal employees for any gratuitous

slander in the context of statements of a purely personal nature.”

It does no such thing. This case, like every judicial decision,

cannot be divorced from its facts. To be sure, it involves a

statement by a congressman to the press. But our ratio

decidendi necessarily depends on the context in which the

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statement was made. See Karl Llewellyn, THE BRAMBLE BUSH

72-76 (Oceana Publications, 1981) (1930) (Those “who think

that precedent produces or ever did produce a certainty that did

not involve matters of judgment and of persuasion . . . simply do

not know our system of precedent in which they live.”). We

lack the power to render an opinion on any case or controversy

not properly before us.

Having determined that Ballenger acted within the scope of

his employment when he made the remark in question, we hold

that the proper defendant under the Westfall Act is the United

States. Sovereign immunity bars suits against the United States

absent an explicit and unequivocal waiver. See Dep’t of Army

v. Blue Fox, Inc., 525 U.S. 255, 261 (1999). CAIR points to no

such waiver, and we have not found one. See 28 U.S.C. §

2680(h) (excepting “[a]ny claim arising out of . . . libel [or]

slander” from the scope of the federal government’s waiver of

sovereign immunity in the FTCA, id. § 1346(b)). Therefore,

informed by the Westfall Act, we agree with the District Court

that CAIR’s case is barred by sovereign immunity.

V. Conclusion

For the foregoing reasons, we affirm the District Court’s

dismissal of the complaint for lack of subject matter jurisdiction.

So ordered.