Ballenger, CAIR to Meet With Judge on Lawsuit

Posted September 24, 2004 at 5:26pm

Justice Department lawyers defending Rep. Cass Ballenger (R-N.C.) against a $2 million defamation suit have asked a federal judge for a protective order shielding the government from having to produce specific information about the 77-year-old Congressman’s wife, work and statements he made to the press last year.

The Council on American Islamic Relations is requesting the information as part of a lawsuit the group filed against Ballenger in late 2003 after the retiring lawmaker called the group a “fund-raising arm for Hezbollah” and blamed it for the breakup of his 50-year marriage.

Lawyers for CAIR, which is the nation’s largest Islamic civil-rights advocacy group, contend that Ballenger’s statements, published in an Oct. 4 article in The Charlotte Observer, were false and defamatory.

But now, approximately one year after Ballenger made the remarks, the case has come down to a single key issue: whether Ballenger was acting within the scope of his employment as a Member of Congress when he made the remarks.

In the next chapter in a case that has been contentious from the start, both sides’ lawyers are scheduled to meet today with U.S. District Judge Richard Leon for a status conference to determine how the case will proceed.

The Justice Department took over Ballenger’s defense in February, arguing that the retiring Congressman was in fact acting in an official capacity when he spoke to Charlotte Observer reporter Tim Funk.

Under the 1946 Federal Tort Claims Act, the federal government covers liability claims for negligent and wrongful acts committed by employees acting within the scope of their official duties. Because the United States cannot be sued for libel or slander under the doctrine of sovereign immunity, the Justice Department asked that the suit be dismissed.

According to the article, Ballenger told Funk that his wife, Donna, had become distressed when CAIR moved into a Capitol Hill office on the same block where the couple lived after Sept. 11, 2001.

Ballenger said the group’s presence “bugged the hell” out of his spouse and that she was nervous about women wearing “hoods” who she said were coming and going from the group’s office.

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

In its four-count complaint, CAIR claimed that Ballenger’s comments harmed its reputation and held the organization up to “public scorn, hatred and ridicule.” Moreover, the group has claimed that Ballenger was not acting within the scope of his employment as a member of the House or a federal employee.

The Justice Department lawyers insist Ballenger was acting in his official role and have asked Leon to deny CAIR’s requests for discovery until the court has settled the question of whether Ballenger was acting as an employee of the United States when he made the comments reported in the Observer.

CAIR’s lawyers have asked Ballenger to answer a long list of questions regarding any and all statements that he, or any staff member, made about CAIR, including statements he may have made on the House floor, in his office, during any public interview or appearance as well as any statements he may have made in the same settings regarding his marital separation.

The group’s lawyers are also seeking detailed information regarding the nature, circumstances and substance of Funk’s interview of Ballenger, as well as information regarding whether Ballenger’s wife has ever worked in his Congressional office and where she resides, according to court filings.

U.S. Attorney Kenneth Wainstein and Assistant Attorneys R. Craig Lawrence and Peter Blumberg, in a Sept. 15 motion for a protective order, opposed CAIR’s proposal for “unfettered discovery.”

CAIR’s lawyers, Jeremiah Denton and Julie Quagliano, are seeking a 90-day period to take depositions, answer interrogatories and obtain information.