Ballenger Awaits Word On Defense in Lawsuit

Posted January 9, 2004 at 6:08pm

As Rep. Cass Ballenger fights a $2 million libel lawsuit filed against him by the Council on American-Islamic Relations, the millionaire North Carolina Republican is waiting to find out whether he’ll have to pay his own legal expenses or if taxpayers will end up footing the bill.

Late last week U.S. District Judge Richard Leon granted Ballenger an extension to respond to CAIR’s complaint while the House general counsel’s office and the Justice Department worked to sort out whether the matter relates to official federal business and will thus be handled by the federal government or a private attorney.

“We have initiated discussions with the Office of the U.S. Attorney for the District of Columbia regarding the scope of employment issue and appropriate litigation responsibilities for this case, and those discussions are ongoing at this time,” House General Counsel Geraldine Gennet wrote in a memorandum filed last month with the court.

At issue in the case are statements Ballenger made in October to The Charlotte Observer in which he blamed the demise of his 50-year marriage on the proximity of his D.C. home to CAIR’s headquarters — a situation that he said caused significant stress and “bugged the hell” out of his wife.

In the interview, Ballenger also accused CAIR of being a “fundraising arm” for the terrorist organization Hezbollah — a statement at the core of CAIR’s defamation suit.

“With this lawsuit, we are sending a clear message to all those who make malicious and defamatory statements against American Muslims or their institutions that they will be held accountable in a court of law,” CAIR Legal Director Arsalan Iftikhar said in a statement at the time of the suit’s filing last month.

Whether Ballenger was acting within the scope of his employment when he made the statements about CAIR will be key to determining not only who will represent Ballenger and pay for his defense, but also whether he can even be sued or has any financial responsibility in the matter.

If it is determined that Ballenger was acting within the scope of his official duties or employment, then the Federal Tort Claims Act could apply.

Under the FTCA, the federal government covers liability claims for negligent and wrongful acts committed by employees or officials — including judges, lawmakers, Congressional staff and agency bureaucrats — who are acting within the scope of their official duties.

But the 77-year-old retiring lawmaker appears to be in strong financial position if he ends up having to cover the legal bills for the case on his own.

Financial disclosure forms show the Hickory Republican is worth at least $8.5 million, with much of that wealth stemming from Plastics Packaging Inc., a family business he has run for roughly 40 years.

Moreover, Ballenger could explore other options to pay his legal bills if the government decides not to handle the matter, including establishing a legal expense fund under House ethics guidelines. He could also ask for the Federal Election Commission’s permission to use remaining campaign funds — as of Dec. 31, 2003, he had $42,233 cash on hand — to pay his legal bills.

“Regardless of what determinations are finally made, either the Department of Justice or private counsel for Congressman Ballenger will need time to enter its appearance and file appropriate motions,” Gennet argued in the memorandum, with which Judge Leon apparently agreed.

Ballenger now has until Feb. 6 to file his response.

In a court filing submitted last week, CAIR objected to Ballenger’s request for additional time and rejected the assertion that the lawsuit has anything to do with Ballenger’s official office or duties.

“The allegations of this suit are unrelated to Ballenger’s job as a member of the House of Representatives,” CAIR lawyers Julie Quagliano and Michael Zisa wrote.

“He has not been sued in his official capacity. The Complaint specifically avers that ‘[t]he defendant did not make The Statement within the scope of his employment as a federal employee or a member of the U.S. House of Representatives, but made it while discussing the alleged reasons for his marital separation, a purely personal matter.’”

Damon Chappie contributed to this story.