Murtha's immunity claim upheld in defamation suit

Kathleen Cullinan | Libel | Feature | April 14, 2009

A defamation lawsuit against U.S. Rep. John Murtha (D-Pa.) is set to be dismissed after the U.S. Court of Appeals for the District of Columbia (D.C. Cir.) ruled Tuesday that the plaintiff had not shown that Murtha's disputed comments to news reporters went beyond the bounds of his job.

Murtha was sued in August 2006 by Marine Staff Sergeant Frank Wuterich over remarks the congressman made to reporters about a gunfight in Haditha, Iraq that left more than 20 civilians dead. Wuterich is currently awaiting trial over his role that day.

Murtha reportedly told the news outlets the Haditha killings were a matter of "cold-blooded murder and war crimes." Wuterich claimed that was false and defamatory.

Under the Westfall Act, Senior Circuit Judge Harry Edwards wrote in Tuesday's opinion, a federal employee is immune to lawsuits so long as the attorney general certifies that he was, at the time of the incident, acting within his scope of employment. Accordingly, Murtha obtained the attorney general's certification that he'd spoken as a congressman. But the district court denied the certification to allow Wuterich to conduct limited discovery, with depositions, on the scope-of-employment issue.

Murtha appealed, and the three-judge panel found in his favor.

Compelling Murtha to go through discovery would undermine his immunity, the appellate court found; further, Wuterich did not go far enough in alleging that Murtha had spoken outside the confines of his job to warrant denial of the attorney general's certification.

Drawing on Council on Am. Islamic Relations, Inc. v. Ballenger, in which the dismissal of another defamation suit against a congressman was upheld, Edwards wrote that "the underlying conduct – interviews with the media about the pressures on American troops in the ongoing Iraq war – is unquestionably of the kind that Congressman Murtha was employed to perform as a Member of Congress."

The district court order was vacated and the case was sent back with instructions that, in keeping with the Westfall Act, the U.S. government replace Murtha as the defendant. Sovereign immunity protects the government from a defamation suit; the suit is expected to be dismissed.