February 29, 2016.
from the Superior Court of the District of Columbia.
(CAB-4137-09). (Hon. Stuart G. Nash, Trial Judge).
J. Fougere, with whom Joseph R. Guerra, Noah T. Katzen, and
Arthur B. Spitzer were on the brief, for appellant.
Byrnes, for appellee.
BLACKBURNE-RIGSBY and BECKWITH, Associate Judges, and
FARRELL, Senior Judge.
awarded William H. Armstrong sizable damages in his suit
alleging intentional interference with a prospective
contractual relationship by Karen Thompson. Before us is Ms.
Thompson's appeal contending, mainly, that she was
erroneously denied judgment as a matter of law because the
suit, premised on true or non-provably false statements she
had made to a government agency about Mr. Armstrong's
fitness for a law enforcement position, was precluded by the
First Amendment. In light of what we conclude was Mr.
Armstrong's status as a public official at the time, we
agree with Ms. Thompson and reverse the judgment in Mr.
facts underlying Mr. Armstrong's multi-count suit against
Ms. Thompson are described in our earlier opinion,
Armstrong v. Thompson, 80 A.3d 177 (D.C. 2013) (
Armstrong I ), as follows:
[Mr.] Armstrong, a former special agent with the Treasury
Inspector General for Tax Administration (TIGTA), was on the
verge of leaving TIGTA to take a job at the United States
Department of Agriculture (USDA) when the USDA abruptly
rescinded its offer of employment after one of Mr.
Armstrong's TIGTA coworkers sent six then-anonymous
letters to the USDA avowing that the agency was making a
" grave error" in offering Mr. Armstrong a job
because he was under internal investigation for serious
integrity violations and other misconduct and would be a
liability to the USDA.
Id. at 180 (footnote omitted.). On the basis of
these letters, Mr. Armstrong brought five tort claims against
the letter writer, Ms. Thompson: defamation, invasion of
privacy (false light), invasion of privacy (publication of
private facts), intentional infliction of emotional distress,
and intentional interference with contractual relations.
Following discovery, the trial court (Judge Epstein) granted
summary judgment to Ms. Thompson on each claim after applying
the common-law elements of each tort. On Mr. Armstrong's
appeal, this court affirmed that decision as to the first
four claims. With particular focus on the defamation claim,
the court analyzed in detail Ms. Thompson's letters to
the USDA and concluded that " no reasonable juror could
deny the substantial truth of each of the statements [of
fact] to which Mr. Armstrong objects," and that the rest
of the statements " were assertions of opinion that were
unverifiable and therefore not actionable as
defamation." Id. at 185, 187.
court reversed, however, as to Mr. Armstrong's claim of
intentional interference with contractual relations. As a
defense to that tort, we recognized, the defendant may seek
" to prove that her interference was not wrongful,"
id. at 190, and in determining whether that burden
has been met courts, " following settled law in the
District of Columbia," must weigh seven factors as
spelled out in the Restatement (Second) Torts § 767
(1977). Id. at 191. Unlike the trial judge, we
concluded that on the evidence proffered by Mr. Armstrong,
" reasonable minds could differ on the outcome of this
balancing test and on . . . whether Ms. Thompson was legally
justified in intentionally interfering with Mr.
Armstrong's prospective employment." Id.
same time, we took note of the fact that in a post-argument
submission to this court Ms. Thompson had " argued for
the first time that the truthfulness of her allegations to
the USDA should preclude liability for intentional
interference under § 772 (a) of the Restatement."
Id. at 191 n.28. But, we observed, " this court
has never explicitly adopted § 772," and we
declined to consider the issue -- " not an uncomplicated
one" -- because Ms. Thompson had not argued " in
her appellate brief . . . or in the trial court that
truthfulness was a complete defense under Restatement §
772," id., citing " Dyer v. William
Bergman & Assocs., 657 A.2d 1132, 1137 n.5 (D.C. 1995)
(defendant waived his contention that the court should adopt
the 'truthful statement' defense to an intentional
interference claim by failing to raise the issue before the
trial court and in his first appeal)." In Armstrong
I, therefore, we " remanded [the case] for further
proceedings" limited to the intentional interference
claim. Id. at 192.
moving originally for summary judgment, Ms. Thompson had
argued that, besides common law defenses entitling her to
judgment as a matter of law, the First Amendment shielded her
completely from liability for truthful or not provably false
statements made to the USDA about Mr. Armstrong, a public
official, citing Hustler Magazine, Inc. v. Falwell,
485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988), and
Cohen v. Cowles Media Co., 501 U.S. 663, 111 S.Ct.
2513, 115 L.Ed.2d 586 (1991). Judge Epstein did not reach the
First Amendment argument because of his resolution of each
tort-claim on common law grounds. After this court's
partial reversal, Ms. Thompson renewed before the trial court
(now Judge Nash) the defense that her non-defamatory
statements of fact and opinion about a " public
official" were fully protected by the First Amendment.
Judge Nash declined to consider the argument, however,
because he deemed this court to have held that both the
common law (Restatement § 772) and First Amendment
defenses were waived. See JA 84-85 (finding no "
possibility that this court could, consistent with the Court
of Appeals decision, grant summary judgment to [Ms. ...