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
6
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
7
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
10
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
12
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.