MEMORANDUM OPINION
Grаnting Defendant Anthony Williams’s Motion for Dismissal on the Ground of Qualified Immunity
I. INTRODUCTION
This matter comes before the court on a motion to dismiss filed by defendant Anthony Williams, who is sued due to events and statements arising out of his tenure as the Chief Financial Officer (“CFO”) of the District of Columbia. The plaintiffs, nine former District of Columbia government employees, brought this consolidated action asserting claims under the United States Constitution, federal law and District of Columbia law arising out of their termination. Following this court’s decisions in favor of the defendants on previous dispositive motions, 1 only one claim *37 survives: the plaintiffs’ claim that Mr. Williams’s 2 derogatory comments at a press conference violated their Fifth Amendment liberty interest in their reputation, i.e., their interest in not being defamed. Moreover, the claim survives only as to four of the original eight plaintiffs, Ms. Alexis, Ms. Graham, Ms. James and Ms. Kinard. 3
Mr. Williams moves to dismiss the complaint on the ground that he is entitled to qualified immunity for the statements in question. 4 For the reasons which follow, the court will grant Mr. Williams’s motion.
II. BACKGROUND
The factual background and procedural history of this case are set forth in this court’s Memorandum Opinions issued on March 30, 1999 and June 15, 1999. On September 9, 1999 plaintiffs’ counsel and Mr. Williams’s counsel contacted chambers by telephone and informed the court that Mr. Williams refused to respond to interrogatories and document-production requests and refused to be deрosed as a party in this matter. Mr. Williams stated that he is entitled to qualified immunity which shields him not only from liability but also from discovery.
By order dated September 10, 1999, this court granted Mr. Williams’s motion to stay all discovery directed at him pending resolution of the instant motion to dismiss. Discovery continues, however, as to the four remaining plaintiffs and the defendant District of Columbia.
III. LEGAL STANDARD
A. Motion to Dismiss
A motion to dismiss for failure to state a claim upon which relief can be granted tests not whether the plaintiff will prevail on the merits, but instead whether or not he has properly stated a claim.
See Scheuer v. Rhodes,
*38 B. A Government Official’s Entitlement to Qualified Immunity
1. Objective Test
“Government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald,
To determine whether immunity applies, the court must determine “whether, assuming the truth of the plaintiffs allegations, the official’s conduct violated clearly established law.”
Crawford-El v. Britton,
2. What Constitutes a “Clearly Established” Right?
For purposes of qualified immunity, a right is “clearly established” if “the contours of that right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.”
Wilson v. Layne,
In short, the doctrine “gives ample room for mistaken judgments” by government officials acting in the discharge of their duties.
Id.; see, e.g., Harris v. D.C.,
3. Scope of Qualified Immunity
Where qualified immunity applies, it provides not simply a defense to liability, but also “an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the purely legal question whether the conduct ... violated clearly established law.”
Farmer v. Moritsugu,
IV. LEGAL ANALYSIS
A. The “Right” Which Must Have Been “Clearly Established”
Thе plaintiffs contend that qualified immunity does not apply, because Mr. Williams “clearly knew that defaming a persons [sic] character and infringing on their Fifth Amendment liberty interest was a violation of their rights from which he could not be immune.” See Opp. to Mot. to Dis. at 6. This formulation mis-characterizes the issue. Surely a reasonable official should have known the employees had a clearly established right not to be defamed. But this begs the question whether he should have known, that criticizing a large group of employees, without naming or singling out any one in particular, violated some clearly established right.
In other words, the plaintiffs frame too broadly the “right” which must have been “clearly established.” The issue is not whether they had some
generalized
liberty interest in not being defamed. Framing the right so abstractly would divorce the immunity analysis from the circumstances in which' the official’s conduct occurred. The court is obliged to consider those circumstances, because the immunity inquiry is “fact-specific.”
See Anderson v. Creighton,
Thus, in determining whether an official has immunity, the court must specifically define the allegedly violated right with reference to the context in which the official’s conduсt occurred. The Supreme Court has explained the rationale for this standard:
For example, the right to due process of law is clearly established by the Due Process Clause, and thus there is a sense in which any action that violates the Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right. Much the same could be said about any other constitutional or statutory violation. But if the test of “clearly established law” were to be applied at this level of generality, it would bear no relationship to the “objective legal reasonableness” that is the touchstonе of Harlow [v. Fitzgerald,457 U.S. 800 , 102 *40 S.Ct. 2727,73 L.Ed.2d 396 (1982)]. Plaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified immunity simply by alleging violation of extremely abstract rights.
Anderson v. Creighton,
Accordingly, the court inquires whether pre-1997 D.C. Circuit lаw “clearly established” a right not to be criticized as an unnamed member of a large group. For the reasons which follow, the court concludes that right was not “clearly established” under the circumstances here.
B. Group Defamation: When an Unnamed Member of a Group Has a “Clearly Established” Right Not to Have the Group Disparaged
Defamation is personal; a plaintiff who alleges defamation “must show that [the allegedly defamatory] statement was published ‘of and concerning’ him”
Summerlin v. Washington Star,
7 Media L.Rep. 2460, 2461 (D.D.C.1981). Allegations of defamation by an organization or group and its members are not interchangeable. Statements which refer to an organizаtion or group do not necessarily implicate its members.
See Provisional Government v. ABC,
It has not been easy for group members to overcome the group defamation doctrine. To do so, a member of the derogated group must demonstrate either that “(a) the group or class is so small that the matter can reasonably be understood to refer to the member [hereinafter the “small-group exception”], or (b) the circumstances of publication reasonably give rise to the conclusion that there is
particular reference
to the member.”
Restatement 2d of Torts
§ 564A (emphasis added). In other words, in order to actionably defame an individual, a statement about a group “must contain some special application of the defamatory matter to the individual.”
See AIDS Counseling & Testing Centers v. Group W Television, Inc.,
As mentioned above, thе rule that unnamed members of a disparaged group have no right to sue for defamation admits of an exception for smaller groups under certain circumstances: “Where the group or class [defamed] is small, and each and every member of the group or class is referred to, then any individual member can sue.”
Neiman-Marcus v. Lait,
Conversely, when a group consists of more than about 25 people, the courts have traditionally found that defamation of the group does not constitute defamation of a particular group member who was neither named nor singled out in the remarks.
See Mullins v. Brando,
In short, the cases surveyed from other federal and state jurisdictions do not establish a “bright line” above which a defamed group is “tоo big” for an unnamed individual member to sue for defamation. The cases do evince a consistent rule of thumb, however, that unnamed group members generally are not permitted to sue for group defamation if the group has more than 25 members; they will almost invariably not be permitted to sue if the group has more than 100 members. As discussed below, these rules of thumb have been followed in this Circuit.
C. The Plaintiffs’ Argument that they Had a Clearly Established Right that the Group Not Be Defamed Because They Were “Identifiable,” even though Unnamed
1. The Plaintiffs as Unnamed but “Identifiable”
When Mr. Williams made his statements in 1997, case law in this Circuit did not “clearly establish” an unnamed individual’s right not to have someone defame a large group to which he belongs. On the con *42 trary, the cases established that such an individual generally does not have a right to sue for defamation of the group. Therefore, the plaintiffs take a different approach.
The plaintiffs do not deny that Mr. Williams did not identify any particular employee by name or by position. Nor do the plaintiffs allege that Mr. Williams directed his remarks solely or especially at certain terminated employees. Rather, the plaintiffs contend that they were nonetheless “named and identified” because when Mr. Williams held the press conference “at least some of the Plaintiffs were being escorted out of their office buildings” and the District posted a list of the 165 terminated employees “on the door of at least the 801 East building at St. Elizabeth’s Hospital.” See Opp. to Mot. to Dis. at 7. The plaintiffs do not specifically allege that the four plaintiffs left in this case were among those escorted out of the building.
The court has carefully considered the plaintiffs’ argument but concludes that it is not sufficient to defeat Mr. Williams’s claim of immunity. For one thing, the court has not found controlling precedents which made it “clear” what circumstances serve to render unnamed group members “identified.” Furthermore, a qualified-immunity decision from the D.C. Circuit Court of Appeals shows it was far from “cleаr” that “identifiable” group members are entitled to sue for defamation of the group when they are not named. See infra.
If the plaintiffs’ defamation claim were tried, their “unnamed but identifiable” argument might enable them to prevail on the principle that an unnamed individual has a right against derogation of the group when the remarks effectively identify him and in some way particularly pertain to him. Even that is not clear, however, because the plaintiffs have not alleged that Mr. Williams’s remarks had any particular or special application to any individual employee. In any event, to defeat Mr. Williams’s claim of qualified immunity, the plaintiffs must do more than show thаt Mr. Williams’s remarks violated their rights. The plaintiffs must show that the law of this Circuit in January 1997 “clearly established” an unnamed group member’s right not to have the group derogated under circumstances similar to those here. The court cannot conclude that right was established, let alone “clearly” established, at the time of Mr. Williams’s statements.
2. Pre-1997 Group-Defamation Precedents in the D.C. Circuit
Preliminarily, the Court of Appeals for the D.C. Circuit has declared, “In a case of a defamatory publication directed against a class, without in any way identifying my specific individual, no individual member of the group has any redress.”
Fowler v. Curtis Pub. Co.,
Service Parking
is at odds with the plaintiffs’ position in two important respects. First, someone reading the newspaper article there readily could have found out the identities of the few parking-lot owners the article disparaged. Without undue effort, such a person then wоuld have known exactly who had been disparaged in the article. Nonetheless, the Court of Appeals did not consider that enough to give an unnamed parking-lot owner a right to sue for defamation of the class. This suggests that the plaintiffs, who were not named in Mr. Williams’s statements, do not gain the right to sue for defamation of the group merely because a listener could have gone on to find out who comprised the group.
Cf. Sommer v. Oak Brook Park Dist. Bd.,
Service Parking
is also inconsistent with the plaintiffs’ position in a second respect. The newspaper article there disparaged the class of downtown D.C. parking lot owners, which the court found consisted of only 10-12 such owners running 20-30 lots at the time. The trial court could have concluded that the owners, although unnamed, had the right to sue for defamation because the article’s disparaging comments were directed at a small group and applied to every member of the group. As discussed above, that “small grоup, all members targeted” situation is a recognized exception to the group-defamation rule. The trial court, however, came to the opposite conclusion, and the Court of Appeals agreed. The Court of Appeals clearly stated, “Nor is'the downtown class so small, as shown by the appellant’s evidence, as to cause defamation of it to defame the appellant.”
Service Parking,
The rule thus stated by the courts and text writers represents, undoubtedly, what has been regarded as a sound compromise between the conflicting interests involved in [defamation] cases. On the one hand is the social interest in free ... discussion of matters of general concern, and on the other is the individual interest in reputation. The courts have chosen not to limit freedom of public discussion except to prevent harm occasioned by defamatory statements reasonably susceptible of special application to a given individual.
Service Parking,
In fairness to the plaintiffs, the court has considered that Service Parking might be distinguished from the instant case on *44 the ground that the plaintiffs here are “even more” readily identifiable than the parking-lot owners in Service Parking. Probably it would have taken less effort to find out the names of the employees in the instant group than to find out the names of the lot owners in Service Parking. But the reason plaintiffs would need to distinguish this Circuit’s decision in Service Parking is precisely that Service Parking is unfavorable to the plaintiffs’ position and is not contradicted by any decision from this Circuit. To the extent that Service Parking offers guidance as to when a group member is “identifiable” so as to escape the group-defamation rule, it casts doubt on the plaintiffs’ argument that they were sufficiently “identifiable” to sue for defamation of their group. In any event, any lack of guidance in our cases about when identifiable unnamed group members can sue for group defamation demonstrates that the law on this point was not “clearly established” as required to defeat a claim of immunity.
Another decision of the D.C. Circuit Court of Appeals,
Fowler v. Curtis Pub. Co.,
Lastly, in
Riss & Co. v. Ass’n of American Railroads,
[T]he class concerned [101 railroads] is still a large one. *** The article does not concern more than railroads as a class or at most the [101] Class I railroads of “the Eastern and Western Territories.” In the language of the eases, there is no reference to “some ascertained or ascertainable person.”
Id.
(quoting
Service Parking,
In short, controlling decisions from the D.C. Circuit Court of Appeals and from this court — Service Parking, Fowler and Riss — cast serious doubt on whether an unnamed individual had a right to sue for group defamation in 1997, even if the listener сould find out the group members’ identities.
3. Pre-1997 Group-Defamation Decisions Outside the D.C. Circuit
In addition, the drafters of the Second Restatement of Torts suggest that 25 members is the
de facto
maximum group size for unnamed individuals to have a right to sue for defamation of the group.
See Restatement 2d of Torts,
§ 564A comm. b. Lastly, as discussed
supra,
in 1997 there was persuasive authority from other Circuits and states consistent with this Circuit’s view on individual recovery
*45
for large-group defamation. In 1995, for instance, a U.S. District Court in New York noted, “[t]he parties have not identified any cases where individual members of groups larger than sixty have been permitted to go forward [with a group-defamation claim].”
Anyanwu v. CBS,
4. Summary
This Circuit’s group-defamation precedents undermine the plaintiffs’ position that large-group members in their circumstances had a right to sue for group defamation. The plaintiffs “have not brought to [the court’s] attention any cases of controlling authority in [this] jurisdiction at the time of the incident which clearly established the rule on which they seek to rely, nor have they identified a consensus of cases of persuasive authority such that a reasonable officer [in Mr. Williams’s position] could not have believed that his actions were lawful.”
Wilson v. Layne,
D. The Relevance, if Any, of this Court’s Previous Denial of Defendant’s Motion for Summary-Judgment on the Plaintiffs’ Defamation Claim
This court denied the defendants’ motion for summary judgment on the defamation claim. See March 30, 1999 Opinion and June 15, 1999 Opinion Denying Reconsideration. The plaintiffs contend that this shows they had a clearly established right not to have their group derogated: “As the Court held ..., there is a material issue of fact regarding Defendant’s statements and their possible violation of Plaintiffs’ constitutional liberty interest creating an issue for a jury. Thus ... Defendant Williams does not qualify for [qualified immunity].” See Opp. to Mot. to Dis. at 5. This does not follow.
In denying the defendants summary judgment on the defamation claim, the court did not address whether persons in the plaintiffs’ position have a “clearly established” right to sue for defamation of а large group. Rather, the court held only that it would be possible for a reasonable jury to find, as a matter of fact, that Mr. Williams stigmatized the plaintiffs so as to damage their reputations. “Qualified immunity insulates officials from liability when a
legal question
governing their conduct is unclear, not when a jury question concerning that conduct is close.”
Harris v. D.C.,
E. No Discovery Necessary to Resolve Immunity Issue
The court has the authority to permit limited discovery directed to an
*46
official claiming qualified immunity if the discovery is necessary to decide whether the official is entitled to the claimed immunity, “such as the actions that thе official actually took....”
See Crawford-El v. Britton,
V. CONCLUSION
For the foregoing reasons, this court will grant Mr. Williams’s motion to dismiss on the ground of qualified immunity. 8
An appropriate Order directing the parties in a fashion consistent with this Memorandum Opinion is issued and executed simultaneously this 29 day of Septembеr, 1999.
ORDER
Granting Motion to Dismiss Defendant Williams on the Ground of Qualified Immunity
For the reasons set forth in this court’s simultaneously executed and issued Memorandum Opinion.
It is this 23 day of September, 1999,
ORDERED that the motion to dismiss as to defendant Anthony Williams shall be and hereby is GRANTED; and it is
FURTHER ORDERED that the complaint shall be and hereby is DISMISSED with prejudice as to defendant Anthony Williams.
SO ORDERED.
Notes
. On March 30, 1999 this court denied the defendant’s motion for summary judgment on this claim. On June 15, 1999 this court denied the defendants’ motion to reconsider that *37 ruling. The defendants filed an interlocutory appeal to the U.S. Court of Appeals for the D.C. Circuit on August 5, 1999.
. The plaintiffs also seek to impose liability on the District of Columbia for Mr. Williams's remarks. The plaintiffs also named Deloras Shepherd, former CFO of the District’s Department of the Treasury, as a party defendant, but all claims applicable to her have been previously dismissed from this case.
. This means that four plaintiffs are no longer in this case: Ms. Brannic, Mr. Hmaey, Ms. Thomas and Mr. Timikate.
. The plaintiffs assert that Mr. Williams waived the immunity defense by failing to plead it specifically. This is inaccurate. Mr. Williams raised the qualified immunity defense in his May 1998 answer to former plaintiff Jasper Mills's complaint (before the individual plaintiffs’ complaints were replaced by a consolidated complaint) and also in his June 1999 answer to the plaintiffs’ consolidated amended complaint.
The plaintiffs also complain that Mr. Williams never sought leave of court to file a motion to dismiss based on immunity. The plaintiffs appear to argue that because Mr. Williams did not move for dismissal on this ground in the motions he filed earlier this year, he may not do so now. This argument lacks merit. Page 5 of this court’s Scheduling & Procedures Order of June 15, 1999 specifically states, "Dispositive motions on grounds not previously advanced before and decided by the court are due on or before Tuesday, November 23, 1999...."
. The plaintiffs assert, "in order to determine whether an official can be shielded by immunity, an inquiry must be made into that official’s knowledge and information regarding the alleged violated right.” See Opp. to Mot. to Dis. at 6 n. 3. This is incorrect because it foсuses on Mr. Williams’s actual knowledge of the law instead of what a reasonable official in his position should have known.
.
Cf. In re Houbigant, Inc.,
. The plaintiffs also assert that the qualified-immunity analysis entails "a fact-specific inquiry into Defendant Williams’ scope of knowledge of Plaintiffs' employment, skills and wоrk ethic. This is a matter which raises a question of fact for the jury thereby defeating Defendant's motion.” Opp. to Mot. to Dis. at 6 n. 3. This is an incorrect statement of the *46 law of qualified immunity. The factual basis for Mr. Williams’s derogatory statements about the group of terminated employees could bear on whether those statements were true, or whether Mr. Williams made those statements in good faith. But Mr. Williams’s knowledge of the terminated employees’ skills and work ethic has nothing to do with whether a reasonable official in his position should have known those comments violated some clearly established right.
. This decision does not dispose of the complaint as against the defendant District of Columbia.
See, e.g., Neal v. D.C.,