Eric Payne, the former contracting director of the Office of the Chief Financial Officer, has filed his opposition to the anti-SLAPP motion filed by the District of Columbia and his former boss, Natwar Gandhi.
Unlike Dan Snyder and Bradlee Dean, who responded to anti-SLAPP motions by arguing that the SLAPP statute violated the Home Rule (here and here), Payne’s opposition does not attack the statute’s constitutionality. Instead, Payne argues that the statute should not apply because he is not a well-heeled individual aiming to punish a private person, which, he argues, was the purpose of the statute. While Payne’s description can be debated, ultimately it is irrelevant. If the requirements of the statute are satisfied (i.e., does the suit arise from an act in furtherance of the right of advocacy on an issue of public interest), the statute applies.
The defendants’ motion rested primarily on their assertion that any statements made by Gandhi were privileged as a matter of law:
because Mr. Payne was an employee of the Office of Chief Financial Officer, Dr. Gandhi’s official duties included informing the public about Mr. Payne and the circumstances of his departure, particularly after Mr. Payne had so vigorously inserted his own self-serving narrative directly into the public discourse. Alternatively, Dr. Gandhi’s statements concerning the decision to fire Mr. Payne, which in itself was within Dr. Gandhi’s official duties. Therefore, as in Moss, the statements here were made “in relation to” Dr. Gandhi’s official duties and are thus protected by absolute immunity for that reason as well.
Payne responds by arguing that Gandhi’s statements were: (a) “ministerial” and thus not subject to any immunity (under DC law, if an official’s function is “ministerial,” there is no immunity; however, if it is “discretionary,” the immunity applies); or (b) made with malice, sufficient to overcome any privilege. For both of these arguments, however, there is an absence of authority in the opposition showing why Payne is correct; instead, there is a lot of rhetoric about why he must be correct.
The District of Columbia also argued that its motion should be granted because statements that Payne was fired for “poor performance” or for being a “very poor manager” would not be interpreted by a reasonable person to be defamatory of Payne. This was the weakest point in its argument and Payne appropriately focuses on it in his opposition.
(The District of Columbia also obliquely argued that Gandhi’s statements about Payne’s job performance were opinion; this was a potentially strong argument, but it was completely underdeveloped in the DC opening brief).