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Thompson v. Armstrong

Court of Appeals of Columbia District

April 7, 2016


         Argued February 29, 2016.

          Appeal from the Superior Court of the District of Columbia. (CAB-4137-09). (Hon. Stuart G. Nash, Trial Judge).

         Joshua J. Fougere, with whom Joseph R. Guerra, Noah T. Katzen, and Arthur B. Spitzer were on the brief, for appellant.

         Kevin Byrnes, for appellee.

         Before BLACKBURNE-RIGSBY and BECKWITH, Associate Judges, and FARRELL, Senior Judge.


         Farrell, Senior Judge:

         A jury 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. Armstrong's favor.[1]

         I. Background


         The 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the verge of leaving TIGTA to take a job at the United States Department of Agriculture (USDA) when the USDA abruptly rescinded its offer of employment after one of Mr.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.).[2] 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.[3]

         This 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.

         At the 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.[4] 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.


         In 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 ยง 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. ...

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