Justice Seeks Dismissal of Ballenger Lawsuit

Posted February 9, 2004 at 6:31pm

Stepping in on behalf of Rep. Cass Ballenger, the Justice Department has asked a federal judge to dismiss a $2 million defamation lawsuit filed against the retiring North Carolina Republican by the nation’s largest Islamic civil rights group.

In a motion filed late Friday, the U.S. attorney for the District of Columbia certified that Ballenger was acting within the scope of his employment as a Member of Congress when he made remarks to a North Carolina newspaper blaming the Council on American-Islamic Relations for the breakup of his 50-year marriage and calling the group a “fundraising arm” of Hezbollah, a militant Lebanese group that the U.S. government has identified as a terrorist organization.

CAIR filed the suit in December, charging that Ballenger’s remarks — published in an Oct. 4 article in The Charlotte Observer — defamed the organization.

In the Observer article, Ballenger, one of the wealthiest Members of Congress, said that CAIR’s move into a Capitol Hill office on the same block of New Jersey Avenue Southeast as his townhouse “bugged the hell” out of his wife, Donna. He said that she grew increasingly nervous about the group’s presence after the Sept. 11, 2001, terrorist attacks and that women wearing “hoods” were entering and leaving its office. Ballenger also told the newspaper that he had reported the group to the FBI and the CIA.

“Diagonally across from my house, up goes a sign — CAIR the fund-raising arm for Hezbollah,” Ballenger was quoted as saying. “That’s 2 1/2 blocks from the Capitol … and they could blow it up.”

Under U.S. anti-terrorism laws, it is a felony to finance groups like Hezbollah.

The council said in its lawsuit, which seeks $2 million in damages, that Ballenger’s comments harmed its reputation and held the organization up to “public scorn, hatred, and ridicule.”

The initial complaint argued that Ballenger was not acting in his role as a Member of Congress because the comments about CAIR were made while discussing the alleged reasons for his marital separation. Ballenger’s marital problems are a “purely personal matter. The reasons for the defendant’s marital separation involve no matters of public concern or policy,” the CAIR suit argued.

But the Justice Department disagreed. Under the 1946 Federal Tort Claims Act, 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.

The key question is whether the government official was acting within the scope of his or her official duties. The answer often varies because each state has different interpretations of what falls into the scope of employment. The CAIR suit was brought in the U.S. District Court for the District of Columbia.

Assistant U.S. Attorney Mark Nagle, chief of the civil division, certified that “Ballenger was acting within the scope of his authority as an employee of the United States at the time of the alleged incident.”

The effect would be to take Ballenger’s name off the lawsuit and substitute the United States as the defendant. If that happens, the case will, essentially, be over because the United States cannot be sued for libel or slander under the doctrine of sovereign immunity.

“Since there has been no waiver of sovereign immunity for these claims, they must be dismissed,” the government argued in its motion.

In addition, claims under the FTCA must first be filed administratively with the agency where the government official works. CAIR did not file such a claim with the House of Representatives, which handles tort complaints on behalf of House Members and staff.

The Ballenger lawsuit has similarities to a 1988 case against former Judiciary Chairman Jack Brooks (D-Texas). In that case, a political consultant and his firm, Texas Dynamics Inc., filed suit in Texas state court against Brooks. The suit alleged that Brooks defamed the firm during a press interview in Brooks’ Washington, D.C., office, by a Houston television station, concerning the status of an appropriations bill to restore the battleship USS Texas. The consulting firm had been working to obtain a $5 million appropriation for the project.

The Justice Department intervened on behalf of Brooks and sought dismissal of the case. In 1995, the U.S. Court of Appeals for the 5th Circuit agreed in a decision that established that Members of Congress are covered under the FTCA.

The scope of employment issue under the FTCA is also currently an unsettled matter in a pending wrongful death lawsuit filed against former Rep. Bill Janklow (R-S.D.). The family of a motorcyclist killed by Janklow in a car crash has filed suit against Janklow, who was convicted of second-degree manslaughter in December. The Justice Department has not indicated yet whether it will certify that Janklow was acting within the scope of his employment at the time of the crash.

Arsalan Iftikhar, CAIR’s director of legal affairs, declined to comment, referring a call to the group’s outside counsel, Jeremiah Denton.

Denton, a Virginia Beach trial lawyer whose Web site notes that “when the stakes are high, the deck is stacked, and the odds are long, Jeremiah Denton is the lawyer to call,” did not return messages left at his office.

CAIR is scheduled to file a reply in court later this month. If it opposes the Justice Department’s motion, the issue will be up to U.S. district Judge Richard Leon, who has a great deal of legislative experience during several stints as an outside counsel to various Congressional committees before being appointed to the bench in 2001 by President Bush.