Browning, Dolly Kyle v. Clinton, William J. ( 2002 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 5, 2002 Decided June 11, 2002
No. 01-5050
Dolly Kyle Browning and
Direct Outstanding Creations Corporation,
Appellants
v.
William Jefferson Clinton, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 98cv01991)
Larry Klayman argued the cause and filed the briefs for
appellants.
David E. Kendall argued the cause for appellee William
Jefferson Clinton, et al. With him on the brief were Allen P.
Waxman, Kevin Hardy, Bruce Lindsey, appearing pro se,
and William C. Oldaker.
John D. Aldock argued the cause and filed the brief for
appellee Robert S. Bennett.
Floyd Abrams and Landis C. Best were on the brief for
appellee Jane Mayer and Advanced Magazine Publishers Inc.
Before: Edwards, Rogers and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: In this appeal, we review the district
court's Rule 12(b)(6) dismissal of eight common and federal
law claims against former President Clinton, two of his
lawyers, one of his aides, The New Yorker, and a journalist.
Construing the complaint liberally and giving appellant the
"benefit of all inferences that can be derived from the facts
alleged," Kowal v. MCI Communications Corp., 16 F.3d 1271,
1276 (D.C. Cir. 1994), we affirm as to all appellees except Mr.
Clinton; with respect to Mr. Clinton, we affirm the dismissal
of six claims and reverse two.
I.
This case involves appellant Dolly Kyle Browning's "long-
standing friendship" with former President Clinton--a friend-
ship she alleges "included an extramarital, sexual relation-
ship"--and her "semi-autobiographical novel" in which the
female protagonist has a long-standing extramarital affair
with the governor of a southern state. Am. Compl. p p 15, 20.
Browning copyrighted her novel in 1988 and sent it to War-
ner Books, where an editor "encouraged [her] to continue to
work on [it]." Id. p 22. Thereafter, Browning charges, Clin-
ton and the other appellees engaged in a scheme to prevent
publication of her book and defame her. According to the
amended complaint, the scheme involved the following:
In 1992, Browning's own brother, allegedly at Clinton's
direction, telephoned to "warn[ ] [Browning], 'if you cooperate
with the media we will destroy you.' " Id. p 32. Clinton's
brother also "threaten[ed] [her]" by phone. Id. p 33. The
following year, appellee Bruce Lindsey, then serving as Depu-
ty White House Counsel, "threatened [ ] Browning by telling
her sister[,] 'we've read your sister's book and we don't want
it published.' " Id. p 38.
In 1994, Browning and Clinton met at their thirtieth high
school reunion where, according to Browning, Clinton "apolo-
gized to [her] for the threat that had been made against her."
Id. p 41. Shortly thereafter, Browning's sister and Lindsey,
acting as intermediaries, reached an "understanding" about
what Browning could say: She "was permitted to say publicly
that she and Clinton had a thirty-three year relationship that
from time to time included sex," but "agreed not to tell the
true story" and "not to use ... the 'A words' ... adultery
and affair"; Clinton agreed "not [to] tell any lies about [her]."
Id. p 44 (internal quotation marks omitted).
Browning retained a literary agent in the summer of 1995.
Later that year, Esquire magazine published an article about
Browning and her book, and in early 1996, Publisher's Week-
ly reported that Browning was "ready to go public in a big
way via the book business[,] ... assuming, that is, that a
publisher bites. This month, [Browning's literary agent] will
begin shopping around a bombshell roman A clef that could
knock Primary Colors right out of the headlines." Id. p 47
(internal quotation marks omitted) (first alteration in origi-
nal). In the end, however, Browning received no "positive
responses, offers to publish, or contracts from any of the
publishers that she contacted." Id. p 55. Appellant Direct
Outstanding Creations Corporation, a business created by
Browning's husband, subsequently "acquired ... rights to
... the manuscript ... [but] has not been able to sell [those]
rights to ... any publisher[ ]." Id. p 56.
Appellee The New Yorker ran an article in 1997 by appellee
Jane Mayer attributing comments to publisher Alfred S.
Regnery about "a memoir by a putative Presidential mis-
tress." Id. p 51 (internal quotation marks omitted). Accord-
ing to the article, although "[i]t seemed plausible ... that
[such] a memoir ... would find a home at Regnery [Publish-
ing Co.][,]" Regnery said he "wouldn't touch [the book] with a
ten-foot pole" because it wasn't "particularly newsworthy"
and was "far below [Regnery's] standards." Id. (internal
quotation marks omitted). Browning claims that she never
sent her manuscript to Regnery, and that Regnery never
made these statements.
In January 1998, Clinton, in connection with his deposition
in the Paula Corbin Jones litigation, produced a handwritten
memo summarizing his high school reunion conversation with
Browning. The memo, which Clinton testified he and appel-
lee Marsha Scott, a White House aide, prepared several days
after the reunion, states that when Clinton "pointed out that
[Browning's book] wasn't true, [Browning] said[,] 'well, I'll
say it's just fiction, just a story[,]' and that she needed the
money and she didn't care if it hurt me or the presidency,
that others had made money and she felt abandoned." Id.
p 69 (internal quotation marks omitted). In his deposition,
Clinton explained that after writing the first part of the
memo, he gave it to Scott who read it and added her own
notes. Id. p 73. Scott's portion reports that Browning "re-
peatedly" stated that "her story was not true but ... she was
angry and needed money." Id. p 74 (internal quotation marks
omitted). Time later published excerpts from the memo.
In March 1998, Jones, in opposition to Clinton's motion for
summary judgment in that litigation, filed a ninety-page brief
and 600 pages of exhibits, among which were statements from
several witnesses, including a four-page affidavit from Brown-
ing describing her alleged affair with Clinton. Appellee
Robert S. Bennett, Clinton's attorney, appeared on CNN and
described Jones's filing as "scurrilous." Id. p 80 (internal
quotations omitted). At a press conference later that month,
Bennett called Jones's "700-page filing"
little more than a web of deceit and distortions....
Despite the plaintiff's ... insistence on using her last
filing to dump into the media every piece of garbage they
can get before the court, we will not respond in kind to
that. Despite their vicious and false attacks, our filing
focuses on the weaknesses of the plaintiff's case and her
witnesses .... Because they dumped so much garbage
.... we had to move to strike it and to present substan-
tial evidence ... to rebut that salacious material.
Id. p 81.
Based on the foregoing, Browning asserts eight common
and federal law claims: (1) tortious interference with prospec-
tive business opportunity (against all appellees); (2) dispar-
agement of property (against The New Yorker and Mayer);
(3) defamation (against Clinton, Scott, and Bennett); (4)
"false light" invasion of privacy (against Clinton, Scott, and
Bennett); (5) intentional infliction of emotional distress
(against Clinton, Lindsey, Scott, and Bennett); (6) civil RICO
(against Clinton and Lindsey); (7) Bivens liability for viola-
tion of the First Amendment (against Clinton and Lindsey);
and (8) civil conspiracy (against all appellees). Concluding
that Browning failed to state a claim with respect to each
count and denying leave to amend, the district court dis-
missed the complaint with prejudice under Federal Rules of
Civil Procedure 12(b)(6) and 15(a). Browning appeals.
II.
A Rule 12(b)(6) motion tests the legal sufficiency of a
complaint: dismissal is inappropriate unless the "plaintiff can
prove no set of facts in support of his claim which would
entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46
(1957). Reviewing de novo, Moore v. Valder, 65 F.3d 189, 192
(D.C. Cir. 1995), we accept the plaintiff's factual allegations as
true and construe the complaint "liberally," "grant[ing] plain-
tiff[ ] the benefit of all inferences that can be derived from the
facts alleged," Kowal, 16 F.3d at 1276. At the Rule 12(b)(6)
stage, we do not assess "the truth of what is asserted or
determin[e] whether a plaintiff has any evidence to back up
what is in the complaint." ACLU Found. of S. Cal. v. Barr,
952 F.2d 457, 467 (D.C. Cir. 1991). As the Supreme Court
reiterated in a case decided after the district court dismissed
this case, Federal Rule of Civil Procedure 8 requires "simply
[that] ... 'the defendant [give] fair notice of what the plain-
tiff's claim is and the grounds upon which it rests.' This
simplified notice pleading standard relies on liberal discovery
rules and summary judgment motions to define disputed facts
and issues and to dispose of unmeritorious claims." Swier-
kiewicz v. Sorema N.A., 534 U.S. 506, ___, 122 S. Ct. 992, 998
(2002) (quoting Conley, 355 U.S. at 47). That said, we accept
neither "inferences drawn by plaintiffs if such inferences are
unsupported by the facts set out in the complaint," nor "legal
conclusions cast in the form of factual allegations." Kowal, 16
F.3d at 1275; cf. 5A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure s 1357, at 347-48
(2d ed. 1990) (explaining that Rule 12(b)(6) dismissal is appro-
priate where the allegations contradict the claim asserted,
e.g., where the allegations in an action for negligence showed
that the plaintiff's own negligence was the sole proximate
cause of the injury).
With these standards in mind, we begin with Browning's
allegation that appellees "intentionally ... [and] maliciously
... interfered with" her business opportunity to publish her
novel. Am. Compl. p 91. To survive a motion to dismiss on
this claim, Browning must plead "(1) the existence of a valid
business relationship or expectancy, (2) knowledge of the
relationship or expectancy on the part of the interferer, (3)
intentional interference inducing or causing a breach or ter-
mination of the relationship or expectancy, and (4) resultant
damage." Bennett Enters. v. Domino's Pizza, Inc., 45 F.3d
493, 499 (D.C. Cir. 1995). The first element--business expec-
tancy--must be "commercially reasonable to anticipate."
Whelan v. Abell, 953 F.2d 663, 673 (D.C. Cir. 1992) (internal
quotation marks and citation omitted). Although Browning's
allegation that she "had a reasonable expectation" of selling
her book to a publisher, Am. Compl. p 88, might, standing
alone, fall short, she also alleges not only that a Warner
Books editor "encouraged" her to continue working on the
book, id. p 22 (appellees mischaracterize Warner's response
as an unequivocal "reject[ion]," Clinton Appellees' Br. at 4),
but also that she received favorable press coverage in the
Esquire and Publisher's Weekly articles. Indeed, the latter
described her novel as a "bombshell" that "could knock
Primary Colors right out of the headlines.' " Am. Compl.
p 47. Reading the complaint liberally in Browning's favor
and bearing in mind that discovery and summary judgment
motions, not Rule 12(b)(6) dismissals, are the appropriate
vehicles for weeding out unmeritorious claims, see Swierkiew-
icz, 534 U.S. at ___, 122 S. Ct. at 998, we think these
allegations, though thin, could support an inference that it
was "commercially reasonable [for Browning] to anticipate"
selling the book. Whelan, 953 F.2d at 673 (internal quotation
marks and citation omitted). We certainly understand how
the district court could have concluded that the lack of
responses from publishers "contradicted" the reasonableness
of any such expectation, Browning v. Clinton, No. 98-1991,
slip op. at 15 (D.D.C. Feb. 8, 2001), but Browning theorizes
that no one responded because "Clinton, acting individually
and through various agents, ... threaten[ed] ... potential
publishers," Am. Compl. p 50.
Insisting that we should nevertheless affirm the dismissal
of the tortious interference claim, three appellees--Clinton,
Lindsey, and Scott--argue that Browning failed to plead
another element of the claim, i.e., causation. It "defies logic,"
they say, to conclude that Clinton and others caused publish-
ers "with a wide range of political beliefs" to reject the book.
Clinton Appellees' Br. at 6. At the Rule 12(b)(6) stage,
however, we must give Browning the benefit of all inferences
and confine our analysis to the facts alleged. The amended
complaint neither identifies publishers she contacted nor
characterizes their "political beliefs." Whether a triable issue
of fact exists regarding her allegation that "potential publish-
ers" failed to respond positively due to "threat[s]" from
Clinton and his "agents" is a question for summary judgment.
We are equally unpersuaded by these appellees' argument
that Browning failed to plead still another element, i.e.,
intentional interference. Browning cannot rely on her allega-
tion that Clinton and his "agents" "threaten[ed] ... potential
publishers," they say, because in failing to specify statements,
publishers, or times, the allegation is too "conclusory." Id. at
5. Though extremely general and based only "on information
and belief," Am. Compl. p 50, the allegation satisfies Rule 8 as
to Clinton (like the parties, we read the word "agents," when
used in connection with alleged threats to publishers, to
include neither Lindsey nor Scott nor any other appellee).
The allegation gives "fair notice of what [Browning's] claim is
and the grounds upon which it rests." Swierkiewicz, 534 U.S.
at ___, 122 S.Ct. at 997 (internal quotation marks and citation
omitted). By signing the complaint, moreover, Browning's
counsel affirmed (on pain of sanctions) that he made "reason-
able inquiry" into the facts supporting the complaint. See 5
Wright & Miller, s 1224, at 205 (explaining that pleading
"on information and belief" is appropriate unless special
pleading requirements apply or the information is within the
plaintiff's knowledge, and noting the relationship between this
permissive standard and Rule 11(b)'s requirement that the
attorney who signs the pleadings affirms having made "rea-
sonable inquiry" into the allegations).
These three appellees also argue that Browning cannot rely
on the alleged threats to intimidate her into not publishing
her story because her claim requires conduct that induced
third parties--here, potential publishers--to decline a busi-
ness relationship. The Restatement of Torts, upon which
appellees rely, actually defines tortious interference more
broadly, including conduct that "prevent[s] the [plaintiff] from
acquiring or continuing the prospective relationship" in addi-
tion to conduct that "induc[es] or otherwise caus[es] a third
person not to enter into or continue the prospective relation."
Restatement (Second) of Torts s 766B (1977). The amended
complaint, however, alleges that after (and therefore despite)
the threat Browning made concerted efforts to sell her
book--thus contradicting any basis for her claim other than
interference with third parties. Although the amended com-
plaint's allegations against Clinton and Scott are not limited
to actions directed at Browning, this is not the case as to
Lindsey. The only allegations against him are that he threat-
ened Browning and, on Clinton's behalf, negotiated the "un-
derstanding" with her. We will therefore affirm the dismissal
of this claim against Lindsey.
The claim against Scott also fails, but on statute of limita-
tions grounds. The amended complaint alleges that in 1994,
Scott added notes to the memo describing Browning's en-
counter with Clinton at their high school reunion, and that
Scott showed those notes to Clinton--conduct Browning char-
acterizes as defamatory, and which forms the sole basis for
her tortious interference claim against Scott. This tortious
interference claim is therefore "intertwined" with Browning's
defamation claim. See Mittleman v. United States, 104 F.3d
410, 415-17 (D.C. Cir. 1997) (holding that a claim is "inter-
twined" with another claim when they are based on the same
underlying facts). When a cause of action with no prescribed
statute of limitations is "intertwined" with one having a
prescribed limitations period, District of Columbia courts
apply the prescribed period. See id. at 415-16. In the
District of Columbia, tortious interference with business ex-
pectancy claims have no prescribed statute of limitations, so
we must apply the one-year statute for defamation. See D.C.
Code s 12-301(4) (West 2001). Because Scott's conduct oc-
curred more than a year before Browning filed her complaint,
we will affirm the dismissal of the tortious interference claim
against Scott. By contrast, the tortious interference claim
against Clinton is not "intertwined" with Browning's defama-
tion claim. Browning alleges that Clinton and his unidentified
"agents" intentionally interfered with her business opportuni-
ty through conduct other than defamation--including by
threatening publishers.
Appellee Bennett urges us to affirm the dismissal of
Browning's tortious interference claim against him because
his CNN and press conference statements, the only conduct
Browning alleges he engaged in, could not have "hindered her
ability to publish her book." Appellee Bennett's Br. at 12.
Even given the liberal reading owed pleadings, we agree.
Made two years after Browning and her agent contacted
publishers, Bennett's comments focused on what he called
"salacious," "scurrilous," and "deceit[ful]" filings by Jones.
Am. Compl. p p 80, 81. Those filings included a Browning
affidavit describing her alleged relationship with Clinton.
But even if a listener familiar with the circumstances of the
Jones case could infer that Bennett's language applied to
Browning, see infra pp. 14-15, their timing and content make
the necessary causal inference "unsupported by the facts set
out in the complaint." Kowal, 16 F.3d at 1275. We will
therefore affirm the dismissal of the tortious interference
claim against Bennett.
The final two appellees, The New Yorker and Jane Mayer,
argue that Browning cannot show that Mayer's article "inter-
fered with Browning's longstanding and unsuccessful prior
efforts to publish her novel ... [since] 1988," pointing out
that the article "profiled a publisher[,] ... did not focus on
Browning or her novel[,] [and] ... did not even mention
Browning or the novel by name." The New Yorker Appellees'
Br. at 13. Although we think these appellees overstate their
case when they characterize Browning's efforts as "unsuc-
cessful ... since 1988"--after all, the Warner Books editor
"encouraged" her, Am. Compl. p 22--we agree that in view of
the content of Mayer's article, the relationship between the
article and any publisher's failure to buy Browning's book is
too attenuated for her to have successfully pleaded causation.
We will therefore affirm the dismissal of this claim against
The New Yorker and Mayer.
The foregoing leaves the tortious interference claim intact
against Mr. Clinton only. We will therefore reverse the
dismissal of that claim and remand for further proceedings.
This requires that we also reverse the dismissal of the
common law civil conspiracy claim against Mr. Clinton. In
dismissing this claim, the district court relied on its conclu-
sion that Browning failed to plead an underlying tort. See
Halberstam v. Welch, 705 F.2d 472, 479 (D.C. Cir. 1983)
(holding that civil conspiracy is not a separate cause of action,
but rather a means of establishing liability for underlying
torts). We have determined, however, that Browning has
stated a tortious interference claim against Mr. Clinton, and
he offers no basis for affirmance other than the absence of an
underlying tort. As to the other appellees, however, we will
affirm the dismissal of the civil conspiracy claim because, as
we indicate below, Browning has failed to allege an underly-
ing tort against any of them.
III.
We agree with the district court that Browning's remaining
claims cannot survive Rule 12(b)(6) review. We explain each
in turn.
As support for her disparagement of property claim against
The New Yorker and Mayer, Browning relies on the article
reporting Regnery's negative comments. A disparagement of
property claim requires that the plaintiff plead "special dam-
ages," Fowler v. Curtis Publ'g Co., 182 F.2d 377, 378 (D.C.
Cir. 1950), that is, "pecuniary harm resulting from the defen-
dant's unprivileged publication of false statements, with
knowledge or reckless disregard of the falsity, concerning the
plaintiff's property or product," Art Metal-U.S.A., Inc. v.
United States, 753 F.2d 1151, 1155 n.6 (D.C. Cir. 1985).
Fedral Rule of Civil Procedure 9(g) requires that special
damages be "specifically stated," i.e., the plaintiff must allege
actual damages with "particularity" and specify " 'facts show-
ing that such special damages were the natural and direct
result' " of the defendant's conduct (here, the alleged false
and disparaging article). Fowler, 182 F.2d at 379 (quoting
Erick Bowman Remedy Co. v. Jensen Salsbery Labs., 17 F.2d
255, 261 (8th Cir. 1926)). This heightened pleading standard
applies because "special damages," unlike general damages,
are "not the necessary consequence of [the] defendant's con-
duct, [but] stem from the particular circumstances of the
case." 5 Wright & Miller, s 1310, at 700. A plaintiff can
satisfy this pleading obligation by identifying either particular
customers whose business has been lost or facts showing an
established business and the amount of sales before and after
the disparaging publication, along with evidence of causation.
See Art Metal-U.S.A., 753 F.2d at 1155 n.6 (explaining the
type of allegations required to plead special damages); cf.
Fowler, 182 F.2d at 379 (affirming a dismissal for failure to
plead special damages where the plaintiffs alleged only that
"as a result of the malicious publication" they lost a total
dollar amount of business).
Browning's amended complaint states that "[a]s a proxi-
mate result of the publication of [Mayer's article], ... neither
[ ] Browning nor Direct Outstanding Creations Corporation
were [sic] able to sell the publishing and other rights in the
manuscript," and therefore that they suffered damages "in-
cluding but not limited to marketing and other business
expenses incurred ..., loss of goodwill, [and] emotional dis-
tress and mental anguish." Am. Compl. p p 96, 95. Accord-
ing to Browning, these allegations satisfy Rule 9(g) because
they "notify the defendant as to the nature of the claimed
damages." Appellant's Br. at 19. Amplifying this point at
oral argument, counsel insisted that "the standard of pleading
special damages has been relegated to notice pleading." Tr.
of Oral Arg. at 10. We find no support for this proposition.
Indeed, it runs counter to the very case Browning cites,
Schoen v. Washington Post, which expressly requires that
disparagement of property claims set forth "the precise na-
ture of the losses as well as the way in which the special
damages resulted from the allegedly false publication." 246
F.2d 670, 672 (D.C. Cir. 1957). The plaintiff in Schoen
specified his business receipts before and after defendant's
disparaging publication, alleged that the publication caused
"many customers to withdraw their custom," and identified
three such customers. Id. Browning's amended complaint
contains no allegations remotely like those in Schoen. She
neither quantifies her loss nor identifies any lost business
relationships. She alleges no facts suggesting causation.
While it may not be "necessary ... to provide ... the
maximum degree of detail that plaintiff might be capable of
providing," Appellant's Br. at 19 (internal quotation marks
and citation omitted) (emphasis added), Browning merely
asserts in general terms that The New Yorker article cost her
financially. We agree with the district court that Rule 9(g)
requires more.
Browning alleges three separate defamatory acts by Clin-
ton and one each by Scott and Bennett. For her first claim
against Clinton, she asserts that the 1994 memo he and Scott
prepared was defamatory and that Clinton "published" it
when he showed his notes to Scott. See Croixland Ltd.
Props. v. Corcoran, 174 F.3d 213, 215-16 (D.C. Cir. 1999)
(explaining the publication requirement for a defamation
claim). The district court found the memorandum protected
by both the "common interest" and the "conditional[ ] ...
common law" privileges. Browning, No. 98-1991, slip op. at
18. Browning appeals only the latter, so we will affirm based
on the former. See Corson & Gruman Co. v. NLRB, 899
F.2d 47, 50 n.4 (D.C. Cir. 1990) (holding that an appellant
waives an issue not argued in brief). Because her claim
against Scott also concerns the 1994 memo, and because
Browning also fails to challenge the district court's "common
interest" finding with respect to Scott, we will affirm that
portion of the district court's order as well.
Browning next claims that Clinton defamed her by produc-
ing the 1994 memo in the Jones litigation and then testifying
about it in his deposition. "[S]tatements preliminary to or in
the course of a judicial proceeding," however, enjoy an "abso-
lute privilege" "so long as the defamatory matter has some
relation--a standard broader than legal relevance--to the
proceeding." Finkelstein, Thompson & Loughran v. Hemis-
pherx Biopharma, Inc., 774 A.2d 332, 338 (D.C. 2001) (inter-
nal quotation marks and citations omitted). According to
Browning, Clinton's production of the memo was "not inciden-
tal to any judicial proceeding," but, rather, Clinton gratu-
itously "use[d] the judicial system in furtherance of his
scheme to defame [ ] Browning." Appellant's Br. at 25, 29.
She points to Jones's first set of document requests, the
responses to which, Browning contends, did not include her
affidavit. Unmentioned by Browning, however, Clinton's re-
sponse to Jones's second set of document requests indicates
that Jones actually sought "all documents created in or
relating to the time from May 8, 1986 to the present concern-
ing Dolly Kyle Browning," and that Clinton "produced all
documents responsive to this request." Resp. to Pl.'s Second
Set of Doc. Reqs. at 19. Because Clinton's production of
Browning's affidavit thus "ha[d] some relation" to the Jones
litigation, Finkelstein, 774 A.2d at 338 (internal quotation
marks and citation omitted), it is, as the district court found,
absolutely privileged.
Browning contends that Time's publication of excerpts
from the 1994 memo amounted to another defamatory act by
Clinton. The amended complaint, however, nowhere links
Clinton to the Time publication. Instead, the amended com-
plaint vaguely alleges that "[o]n information and belief, Clin-
ton ... published [the] memorandum to other individuals."
Am. Compl. p 75. Browning has thus failed to plead a critical
element of defamation, i.e., that Clinton "published" the de-
famatory statement. See Croixland, 174 F.3d at 215.
The defamation claim against Bennett rests on his press
statements about Jones's filing. To survive a Rule 12(b)(6)
motion, Browning must allege that Bennett's statements
"concern[ed]" her--that is, that a "reasonable listener" could
think that Bennett was referring to Browning even though he
never named her--and that the comments were defamatory.
Id. When a statement refers to a group, a member of that
group may claim defamation if the group's size or other
circumstances are such that a reasonable listener could con-
clude the statement referred to each member or "solely or
especially" to the plaintiff. Serv. Parking Corp. v. Wash.
Times Co., 92 F.2d 502, 506 (D.C. Cir. 1937) (internal quota-
tion marks and citation omitted); see also Restatement (Sec-
ond) of Torts s 564A (1977) ("[G]eneral[ly] ... no action lies
for ... defamatory words concerning a large group or class of
persons," but it may when "the words are ... reasonably
understood to have personal application ... [based on the]
circumstances[.]"). Insisting that she successfully alleged
this element, Browning points out that Bennett's statements
refer to Jones's court filings, which included Browning's
affidavit, and to Jones's "witnesses," of which Browning was
one. "Bennett," Browning asserts, "was plainly accusing
[me] of criminal conduct--perjury." Appellant's Br. at 35.
According to Bennett, because he described Jones's filings
in their totality, emphasizing their voluminous nature--a
"700-page filing"--no reasonable person could think his state-
ment applied to Browning's four-page affidavit. Although
that may be true generally, a listener who knew Jones's filing
contained the Browning affidavit might well believe that
Bennett's reference to Jones's "witnesses" pertained to each
witness, including Browning. See Restatement (Second) of
Torts s 564 cmt. b (1977) ("If the applicability of the defama-
tory matter to the plaintiff depends upon extrinsic circum-
stances, it must appear that some person ... familiar with
the circumstances ... [could] reasonably believe[ ] that [the
statement] referred to the plaintiff."). We need not resolve
this issue, however, for we believe that no reasonable person
would be able to infer that Bennett was accusing Browning of
deceitfulness, let alone perjury. Bennett aimed his words of
falsehood--"web of deceit and distortions," "vicious and
false"--at Jones's entire "700-page" filing. Am. Compl. p 81.
By contrast, when Bennett expressly mentioned "witnesses"
(again, this included Browning), he spoke merely of their
"weaknesses." Id. Given the hotly contested and high pro-
file nature of the Jones litigation, Bennett's other allegedly
defamatory words--"scurrilous," "garbage," "salacious"--
amount only to non-actionable "hyperbole." See Moldea v.
New York Times Co., 22 F.3d 310, 313 n.2, 314 (D.C. Cir.
1994) (holding that "hyperbole" is protected from defamation
claims due to the "constitutional protection afforded to paro-
dy, satire, and other imaginative commentary," and explain-
ing the "importance of context" in identifying hyperbole); see
also, e.g., Nat'l Assoc. of Letter Carriers v. Austin, 418 U.S.
264, 286 (1974) (calling a strikebreaker a "traitor to his
country" was "merely rhetorical hyperbole").
Browning's false light invasion of privacy claim rests on the
same facts as her defamation claim. We will therefore affirm
the dismissal of that claim as well. See White v. Fraternal
Order of Police, 909 F.2d 512, 518 (D.C. Cir. 1990) (holding
that the privileges and defenses applicable to a defamation
claim apply to a false light claim based on the same facts).
We turn next to Browning's charge of intentional infliction
of emotional distress by Clinton, Bennett, Scott, and Lindsey.
This tort requires conduct so " 'outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intoler-
able in a civilized community.' " Bernstein v. Fernandez, 649
A.2d 1064, 1075 (D.C. 1991) (quoting Restatement (Second) of
Torts s 46 cmt. d (1965)). Liability requires more than
"mere insults, indignities, threats, annoyances, petty oppres-
sions, or other trivialities." Homan v. Goyal, 711 A.2d 812,
818 (D.C. 1998) (internal quotation marks and citation omit-
ted). As the two cases Browning cites demonstrate, the tort
is reserved for truly outrageous behavior. In one case, the
defendant gave the plaintiff's home address to a third person
who the defendant should have expected would harass and
even threaten the plaintiff's life. See id. at 818-20. In the
other case, a landlord not only tolerated unsafe and unsani-
tary conditions in his rental properties, but when tenants
organized a rent strike, hired workers who harassed and
intimidated the tenants, even "brandish[ing]" firearms. Jon-
athan Woodner Co. v. Breeden, 665 A.2d 929, 934-35 (D.C.
1995). Browning's allegations are not at all comparable.
In support of her intentional infliction of emotional distress
claim against Bennett, Browning again relies on Bennett's
statements at the press conference. In our view, however, no
reasonable jury could find terms like "scurrilous" and "gar-
bage," uttered during politically charged litigation, to "go
beyond all possible bounds of decency." Ordinary Washing-
ton press conferences would otherwise routinely invite litiga-
tion.
Browning's claim against Clinton relies on the threats she
alleges were conveyed through Lindsey and others, the nego-
tiations culminating in the "understanding" that she would
"not use 'the A words' " and that Clinton would not "tell lies
about her," and Clinton's creation of the 1994 memo and its
production in the Jones litigation. Yet no reasonable jury
could conclude that either the threats or the "A word"
"understanding," disturbing as they may have been to Brown-
ing, amounted to conduct "utterly intolerable in a civilized
community." Id.; cf. McConathy v. Dr. Pepper/Seven Up
Corp., 131 F.3d 558, 564 (5th Cir. 1998) (holding that a
plaintiff failed to state an emotional distress claim against her
supervisor, who, when the plaintiff sought time off to have
surgery, "threatened to fire her," and made comments de-
scribed by the court as "cruel" and "unfair"). And certainly
no reasonable jury could find that Clinton acted "outrageous-
ly" by privately meeting with an aide to prepare a memoran-
dum (even an allegedly false one), and then producing it in
response to a discovery request. Because the allegations
against Clinton encompass Scott's and Lindsey's behavior,
Browning's emotional distress claims against them fail as
well.
Browning's civil RICO claim alleges that Clinton and Lind-
sey violated the RICO statute by "acquir[ing]," "maintain[ing]
control of," and "conduct[ing]" "the affairs" of the Office of
the President through a "pattern of racketeering activity," 18
U.S.C. s 1962(b), (c), directed at concealing Clinton's extra-
marital relationships (including with Browning). She also
accuses appellees of "conspir[ing]" to engage in this pattern
of racketeering. Id. s 1962(d). Browning alleges a series of
racketeering activities: threats intended both to deter her
from revealing her story and to frighten her into agreeing to
the "A word" "understanding" (in violation of the Hobbs Act,
id. s 1951); interstate telephone calls to negotiate the "un-
derstanding," with which she says Clinton had no intention of
complying, and to secure the publication of The New Yorker's
allegedly disparaging article (in violation of the wire fraud
statute, id. s 1343); and Clinton's allegedly false Jones testi-
mony (in violation of the obstruction of justice statute, id.s 1503). Because of these "racketeering activities," Brown-
ing claims, she suffered "injury to [her] business and proper-
ty." Am. Compl. p 135; see 18 U.S.C. s 1964(c) (authorizing
a civil damages suit by "[a]ny person injured in his business
or property by reason of a [RICO] violation").
Construing Browning's amended complaint to allege injury
by a scheme to intimidate her into keeping her story secret--
that is, foregoing her "property right ... to market and sell
any description of her long-standing relationship with Clin-
ton"--the district court found this claim barred by the four-
year statute of limitations for civil RICO claims because,
although Browning alleges receiving threats back to 1992, she
did not sue until September 1998. Browning, No. 98-1991,
slip op. at 20-22. On appeal, Browning claims (as she also
did in the district court) that her injury was her "[in]ability to
market and publish [her] book," Appellant's Br. at 55, an
injury she claims to have discovered no earlier than "the
Spring of 1996," when she began "attempting to find a
publisher," id. at 49. Stated this way, her civil RICO claim
still fails. Putting aside whether the alleged conduct violates
the cited criminal statutes and therefore constitutes racke-
teering activity, see 18 U.S.C. s 1961 (listing crimes qualify-
ing as acts of racketeering), Browning pleads no facts sug-
gesting "some direct relation between the injury asserted and
the injurious conduct alleged"--in other words, proximate
causation, Holmes v. Secs. Investor Prot. Corp., 503 U.S. 258,
268 (1992) (internal quotation marks and citation omitted).
Although the threats and telephone calls leading to the "A
word" agreement bear on Browning's charge that Clinton and
Lindsey frightened her into not revealing her story, they have
nothing to do with the failure of any publisher to buy her
novel. Similarly, the relationship between any evaporation of
interest in Browning's book and the publication of The New
Yorker article is "too remote." Id. at 269. Equally unper-
suasive is Browning's claim that Clinton's allegedly false and
"defamatory" Jones testimony "injure[d] [her] ability to mar-
ket ... [her] book," Appellant's Br. at 55, for no factual
allegations support this utterly conclusory contention. Link-
ing the alleged racketeering activity with her claimed injury
requires, as the district court observed, "a huge leap in logic."
Browning, No. 98-1991, slip. op. at 23.
Browning's Bivens claim, asserted against Clinton and
Lindsey, alleges violation of her First Amendment rights
because Clinton, acting through Lindsey: (1) "threaten[ed]
[her] if she spoke publicly" about her relationship with Clin-
ton; and (2) "forced [her]," by "threatening to defame her,"
not to use the words "adultery" or "affair" to describe that
relationship. Am. Compl. p p 138, 139 (internal quotation
marks omitted). Critical to a successful Bivens claim, of
course, Clinton and Lindsey must have acted "under color of
[federal] authority." Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388, 389 (1971). Browning theorizes that as
"officials at the highest level of the federal government," they
"used [their] office[s]" to "threaten and intimidate" her. Ap-
pellant's Br. at 57. "All actions of a government official,"
however, "are not, simply by virtue of the official govern-
ment's employ, accomplished under the color of ... law."
Johnson v. Knowles, 113 F.3d 1114, 1117-18 (9th Cir. 1997)
(affirming a 12(b)(6) dismissal of a section 1983 suit against a
state legislator because the defendant's actions were related
to his role as a member of his political party, not to his
position as an elected official, and therefore he was not acting
under color of state law) (internal quotation marks and cita-
tion omitted). To be "under color of authority," the conduct
must be "cloaked with official power [and the official must]
purport[ ] to be acting under color of official right." Lopez v.
Vanderwater, 620 F.2d 1229, 1236 (7th Cir. 1980) (holding
that a state court judge's preparation of a criminal complaint
against the defendant, and presentation of those charges to
himself, were actions taken under color of state law). As the
district court found, Browning alleges no facts suggesting
that Clinton and Lindsey purported to act under color of
official right, or in other words, that their alleged threats
(including to defame her) reflected anything more than a
private dispute. See Gritchen v. Collier, 254 F.3d 807, 812-13
(9th Cir. 2001) (holding that a police officer's threat to bring a
defamation suit did not constitute action under color of law
because "[p]ursuing private litigation [was] not abuse [of the
officer's] position or authority as a police officer"). Conclud-
ing otherwise would entirely eviscerate the "under color of
authority" requirement.
Finally, Browning's counsel asserted at oral argument that
the district court erred by dismissing the amended complaint
with prejudice. Because that argument appears nowhere in
Browning's brief, however, we will not consider it. See
Corson, 899 F.2d at 50 n.4.
IV.
In sum, we: (1) affirm the dismissal of the amended
complaint against all appellees except former President Clin-
ton; (2) affirm the dismissal of the defamation, false light
invasion of privacy, intentional infliction of emotional distress,
civil RICO, and Bivens claims against Mr. Clinton; and (3)
reverse the dismissal of the intentional interference with
business opportunity claim against Mr. Clinton (and the
related common law civil conspiracy claim) and remand for
further proceedings. With respect to the latter causes of
action, we emphasize that given the generous reading due
complaints at this stage, we find only that Browning has
stated a claim upon which relief could be granted. Assuming
the district court determines that it either has diversity
jurisdiction over the remaining common-law claims, see 28
U.S.C. s 1332, or that it should retain supplemental jurisdic-
tion, see id. s 1367(c)(3), whether Browning can then survive
summary judgment or ultimately prevail depends on whether
she is able to produce evidence to support her allegation that
Mr. Clinton intentionally interfered with her "commercially
reasonable expectation" of publishing her book. Proceedings
in the district court must concern this narrow issue only.
The Federal Rules of Civil Procedure give the district court
all the authority it needs to prevent the use of discovery for
unrelated purposes.
So ordered.