Patricia Smith v. Hillary Clinton , 886 F.3d 122 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted February 9, 2018 Decided March 27, 2018
No. 17-5133
PATRICIA SMITH AND CHARLES WOODS,
APPELLANTS
v.
HILLARY RODHAM CLINTON AND UNITED STATES OF
AMERICA,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-01606)
Larry E. Klayman was on the briefs for appellants.
David E. Kendall, Katherine M. Turner, and Amy Saharia
were on the brief for appellee Hillary Rodham Clinton.
Jessie K. Liu, U.S. Attorney, U.S. Attorney’s Office, and
Mark B. Stern and Weili J. Shaw, Attorneys, U.S. Department
of Justice, were on the brief for appellee United States of
America.
Before: ROGERS, MILLETT, and PILLARD, Circuit Judges
Opinion for the Court filed PER CURIAM.
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PER CURIAM: Sean Smith and Tyrone Woods tragically
perished in the September 11, 2012, attacks on United States
facilities in Benghazi, Libya. Their parents, Patricia Smith and
Charles Woods, sued former Secretary of State Hillary
Rodham Clinton for common-law torts based on her use of a
private email server in conducting State Department affairs
while Secretary of State and public statements about the cause
of the attacks she made in her personal capacity while a
presidential candidate. They appeal the substitution of the
United States as the defendant on the claims involving the
email server and the dismissal of their complaint for lack of
subject matter jurisdiction and failure to state a claim. We
affirm.
I.
The genesis of this case is in Clinton’s private meeting
with Smith and Woods on September 14, 2012, in the wake of
their sons’ deaths. According to the complaint, Secretary
Clinton “lied to [Smith and Woods] and told [them] that the
Benghazi Attack was the result of [an] anti-Muslim YouTube
video that had been posted online and that the creator of the
video would be arrested.” Compl. ¶ 19. An entry in Woods’s
daily journal for September 14, 2012, records that “[Woods]
gave Hillary a hug and shook her hand, and she said [they] are
going to have the film maker arrested who was responsible for
the death of [his] son.” Id. ¶ 20.
Four years after this meeting, Smith and Woods sued
Clinton for wrongful death, negligence, defamation, false light,
intentional infliction of emotional distress, and negligent
infliction of emotional distress. Their tort claims stem in part
from Clinton’s use of a private email server while she was
Secretary of State “to conduct official government business,
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including but not limited to,” Smith and Woods allege,
“sending and receiving thousands of e-mails regarding matters
of national security.” Id. ¶ 9. This information allegedly
included the “location of . . . government operations in
Benghazi, Libya” and “was intercepted by foreign powers.” Id.
¶ 15. The complaint further alleges that Islamic terrorists
acquired this information and “used it to plan, orchestrate, and
carry out the horrific and devastating attack on the American
diplomatic compound in Benghazi, . . . resulting in the death of
four Americans, including Sean Smith and Tyrone Woods.” Id.
¶ 16. The remaining claims arise from four statements Clinton
made in her personal capacity during the 2016 presidential
campaign, in response to Smith and Woods’s accusations that
she lied to them during the September 14 meeting about the
cause of the attack. They alleged that these statements defamed
them by “either directly calling them liars, or [] strongly
implying that they are liars.” Id. ¶ 23. The complaint alleged:
First, on December 6, 2015, ABC News’ George
Stephanopoulos asked Clinton about the attack in Benghazi:
“‘Did you tell them it was about the film?’” Id. ¶ 23(a) (citation
omitted). Clinton responded:
No. You know, look I understand the continuing grief
at the loss that parents experienced with the loss of
these four brave Americans. And I did testify, as you
know, for 11 hours. And I answered all of these
questions. Now, I can’t — I can’t help it the people
think there has to be something else there. I said very
clearly there had been a terrorist group, uh, that had
taken responsibility on Facebook, um, between the
time that, uh, I – you know, when I talked to my
daughter, that was the latest information; we were, uh,
giving it credibility. And then we learned the next day
it wasn’t true. In fact, they retracted it. This was a
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fast-moving series of events in the fog of war and I
think most Americans understand that.
Id. (internal quotation marks and citation omitted).
Second, on December 30, 2015, in an editorial board
meeting, Conway Daily Sun columnist Tom McLaughlin
referred to Clinton’s answer to Stephanopoulos and asked
“‘Somebody is lying. Who is it?’” Id. ¶ 23(b) (citation
omitted). Clinton responded: “‘Not me, that’s all I can tell
you.’” Id. (citation omitted).
Third, during the Democratic Presidential Primary Debate
on March 9, 2016, “[w]hen asked about [] Smith’s allegation
that [] Clinton lied to her by blaming the Benghazi Attack on
the YouTube video,” Clinton responded, “‘I feel a great deal of
sympathy for the families of the four brave Americans that we
lost at Benghazi, and I certainly can’t even imagine the grief
that she has for losing her son, but she’s wrong. She’s
absolutely wrong.’” Id. ¶ 23(c) (citation omitted).
Fourth, in a July 31, 2016, interview with Chris Wallace
of Fox News Sunday, Clinton said,
Chris, my heart goes out to both of them. Losing a
child under any circumstances, especially in this case,
two State Department employees, extraordinary men
both of them, two CIA contractors gave their lives
protecting our country, our values. I understand the
grief and the incredible sense of loss that can motivate
that. As other members of families who lost loved
ones have said, that’s not what they heard[.] I don’t
hold any ill feeling for someone who in that moment
may not fully recall everything that was or wasn’t
said.
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Id. ¶ 23(d) (internal quotation marks and citation omitted).
The district court granted the United States’ motion to
substitute itself for Clinton under the Federal Employees
Liability Reform and Tort Compensation Act (“Westfall Act”),
28 U.S.C. § 2679, for those claims involving Clinton’s use of
a private email server while Secretary of State. The district
court then dismissed without prejudice the wrongful death,
negligence, and intentional infliction of emotional distress
counts against Clinton in her official capacity for lack of
subject matter jurisdiction due to Smith and Woods’s failure to
exhaust their administrative remedy under the Federal Tort
Claims Act, 28 U.S.C. § 2675(a). The district court also
dismissed without prejudice the defamation, false light, and
intentional infliction of emotional distress counts against
Clinton in her personal capacity for failure to state plausible
claims for relief. Smith and Woods voluntarily withdrew their
claim for negligent infliction of emotional distress.
II.
Smith and Woods appeal the Westfall Act substitution of
the United States for Clinton and the dismissal of the remaining
tort claims. Our review is de novo. Council on Am. Islamic
Rel. v. Ballenger, 444 F.3d 659, 664 (D.C. Cir. 2006) (CAIR);
Weyrich v. New Republic, Inc., 235 F.3d 617, 623 (D.C. Cir.
2001).
A.
The Justice Department certified that, “with respect to the
incidents alleged in the Complaint, . . . Clinton was acting
within the scope of her office as the Secretary of State of the
United States at the time of the alleged conduct that purportedly
occurred while she was in office, i.e., from January 21, 2009 to
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February 1, 2013.” Westfall Certification at 2, No. 16-cv-1606,
ECF. No. 23-1 (Oct. 21, 2016). That certification is prima facie
evidence that any harm allegedly caused by Clinton’s email
communications was within the scope of her employment and
thus that the United States was properly substituted. CAIR, 444
F.3d at 662. Smith and Woods bore the burden of alleging
“specific facts” that could overcome that presumption. Id.
(internal quotation marks and citation omitted); see also
Kimbro v. Velten, 30 F.3d 1501, 1509 (D.C. Cir. 1994).
Smith and Woods contend that conducting official
business on a private server could not have been within the
scope of Clinton’s employment as the Secretary of State
because the Department of State’s “general policy [is] that
normal day-to-day operations be conducted on an authorized
[Automated Information System].” Appellant Br. 24 (quoting
Josh Gerstein, Clinton Private Email Violated “Clear-Cut”
State Dept. Rules, POLITICO, Mar. 5, 2015) (second alteration
in original). These allegations, even if true, fall well short of
rebutting the United States’ Westfall Certification.
Extensive precedent makes clear that alleging a federal
employee violated policy or even laws in the course of her
employment — including specific allegations of defamation or
of potentially criminal activities — does not take that conduct
outside the scope of employment. “The proper inquiry . . .
‘focuses on the underlying dispute or controversy, not on the
nature of the tort, and is broad enough to embrace any
intentional tort arising out of a dispute that was originally
undertaken on the employer’s behalf.’” CAIR, 444 F.3d at 664
(D.C. Cir. 2006) (quoting Weinberg v. Johnson, 518 A.2d 985,
992 (D.C. 1986)). What matters is whether the underlying
activity itself was part of the employee’s duties. For instance,
in CAIR, 444 F.3d at 664–665, the court held that because
responding to media inquiries was one of the congressman’s
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authorized duties, such responses fell within the scope of
employment even when defamatory. See also, e.g., Wuterich
v. Murtha, 562 F.3d 375, 384–85 (D.C. Cir. 2009)
(congressman’s media interviews about military incident, even
if defamatory, were within scope of employment); Rasul v.
Myers, 512 F.3d 644, 656–659 (D.C. Cir. 2008), vacated and
remanded on other grounds, 555 U.S. 1083 (2008), reinstated
in relevant part, 563 F.3d 527, 528–529 (D.C. Cir. 2009)
(senior officials alleged to have implemented and supervised
systemic torture of Guantanamo Bay detainees acted within the
scope of their employment because their responsibilities
included detaining and interrogating suspected enemy
combatants); Wilson v. Libby, 535 F.3d 697, 712 (D.C. Cir.
2008) (Executive officials acted within their scope of
employment when disclosing a covert operative’s identity for
retributive reasons while speaking to the press); id. at 712 n.2
(temporal and spatial scope of employment for important
Executive officials not limited to regular working hours or
government property).
Therefore, the parts of Count V — intentional infliction of
emotional distress — dealing with Clinton’s activities as
Secretary of State were properly dismissed. The complaint
challenges only Clinton’s use of “her private e-mail server to
send and receive confidential and classified government
information, often concerning matters of national security” and
“other government operations in Benghazi, Libya that the
deceased were a part of.” Compl. ¶ 50. Regardless of whether
or not these activities were conducted properly or lawfully,
those types of communications fall within the heartland of her
duties as Secretary of State. See Schneider v. Kissinger, 412
F.3d 190, 194–95 (D.C. Cir. 2005) (foreign policy decisions
committed to political branches). The same is true for Count I,
wrongful death, which is based upon Clinton’s use of “a private
email server to send and receive secret, confidential and
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classified government information,” Compl. ¶ 26, and Count
IV, negligence, premised on Clinton’s “handling of
confidential and classified government information via her
personal email server,” id. ¶ 44.
Because the district court properly granted the United
States’ motion to substitute itself for Clinton on Counts I, IV,
V, and VI (now dismissed), those claims were then governed
by the Federal Tort Claims Act, which requires exhaustion of
administrative remedies before a lawsuit may be brought. 28
U.S.C. § 2675(a). Smith and Woods conceded that they failed
to exhaust their administrative remedies. Pls’ Opp’n to U.S.
Mots. at 7, No. 16-cv-1606, ECF No. 30 (Nov. 18, 2016). The
district court thus lacked subject matter jurisdiction over the
Westfall Act covered claims. McNeil v. United States, 508
U.S. 106, 113 (1993).
B.
Even assuming the truth of the alleged falsity of Clinton’s
statements, the district court did not err in dismissing the
remaining tort claims for defamation, false light, and
intentional infliction of emotional distress (in relevant part) for
failure to state a claim. Fed. R. Civ. P. 12(b)(6).
1. The district court correctly found that the defamation
claim, Count II, does not state a plausible claim for relief.
Smith v. Clinton, 253 F. Supp. 3d 222, 240–43 (D.D.C. 2017).
A plaintiff claiming defamation must allege:
(1) the defendant made a false and defamatory
statement concerning the plaintiff; (2) the defendant
published the statement without privilege to a third
party; (3) the defendant’s fault in publishing the
statement amounted to at least negligence; and (4)
either the statement was actionable as a matter of law
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irrespective of special harm, or its publication caused
the plaintiff special harm.
Hourani v. Mirtchev, 796 F.3d 1, 16 (D.C. Cir. 2015) (quoting
Oparaugo v. Watts, 884 A.2d 63, 76 (D.C. 2005)) (internal
quotation marks omitted).
Smith and Woods pled neither that Clinton’s statements
are actionable as a matter of law nor special damages. Federal
Rule of Civil Procedure 9(g) requires that special damages “be
specifically stated.” The complaint merely contains a
boilerplate recitation, unaccompanied by any factual detail,
that “[a]s a direct and proximate result of Defendant Clinton’s
statements, [Smith and Woods] have suffered pecuniary
damage, as well as injury to reputation, impairment to standing
in their community, personal humiliation, pain and suffering,
and emotional distress.” Compl. ¶ 37. The affidavits of Smith
and Woods allege the same harm, almost verbatim. See Woods
Aff. ¶ 7; Smith Aff. ¶ 6.
They also did not plead that the challenged statements are
defamatory as a matter law, a status reserved for statements
about extreme subjects, such as criminal behavior, “serious
sexual misconduct,” “a loathsome disease,” or a person’s
suitability for his chosen profession, Carey v. Piphus, 435 U.S.
247, 262 n.18 (1978); see also Hall v. District of Columbia,
867 F.3d 138, 149 (D.C. Cir. 2017). Clinton’s statements are
not of that character. In Weyrich, this court held that that an
article claiming the plaintiff “‘began to suffer bouts of
pessimism and paranoia,’” though “unflattering,” was not
actionable. 235 F.3d at 624–25 (citation omitted). Similarly,
even if Clinton’s statements could be understood as casting
Smith and Woods as liars, this unpleasant portrayal does not
amount to defamation per se. Smith and Woods do not
challenge these aspects of the district court’s decision on
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appeal, nor did they seek in district court to amend their
complaint to provide the required specificity.
Even if Smith and Woods had adequately pled this
element, their claim fails because Clinton’s statements are not
“‘reasonably capable of any defamatory meaning,’” which is a
question of law. Id. at 627 (quoting White v. Fraternal Order
of Police, 909 F.2d 512, 518 (D.C. Cir. 1990)). “A statement
is defamatory if it tends to injure plaintiff in his trade,
profession or community standing, or lower him in the
estimation of the community.” Id. at 627 (internal quotation
marks and citation omitted). “An allegedly defamatory remark
must be more than unpleasant or offensive; the language must
make the plaintiff appear odious, infamous, or ridiculous.” Id.
(internal quotation marks and citation omitted).
Clinton has made no such remarks here. In the ABC News
interview, she contradicted Smith and Woods’s version of
events but did not state or imply they were lying, instead noting
she “underst[ood] [their] continuing grief.” Compl. ¶ 23(a).
And in the Conway Daily Sun interview, it was the reporter, not
Clinton, who posits someone is lying; all Clinton did was deny
that she was lying. Id. ¶ 23(b). In the two subsequent
interviews, Clinton bolstered her own version of events by
noting that others present at the meeting supported her account
and suggesting reasons why her recollection differed from that
of Smith and Woods. Id. ¶ 23(c) and (d). Clinton did state that
Ms. Smith was “absolutely wrong,” id. ¶ 23(c), but disagreeing
with another person’s recollection does not necessarily imply
that the other person is lying. The D.C. Court of Appeals has
refrained from finding disagreement to constitute defamation
even where the disagreement was combative, as in Levant v.
Whitley, 755 A.2d 1036, 1040 (D.C. 2000), where the plaintiff
was accused of “bringing shame” to the employer. The court
reasoned that “[a]t most” the parties “had an intense
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disagreement,” which did “not rise to the level of defamation.”
Id. at 1046. Here, the facts of disagreement are less “intense”
in the sense that Clinton does not accuse Smith and Woods of
lying, and instead acknowledges their grief while respectfully
disagreeing with their recollection. Because none of her
responses stated or could be reasonably understood as implying
that either Smith or Woods was lying, the claim fails.
2. The false light claim, Count III, also fails. “Because
[defamation and false light] are so similar,” a plaintiff may
plead them as alternatives and a reviewing court “must also
satisfy itself that the statement does not arguably place [the
plaintiff] in a ‘highly offensive’ false light” in addition to
finding the statements are not capable of defamatory meaning.
Weyrich, 235 F.3d at 628. Because Clinton merely disagreed
with Smith and Woods’s recollection of events and couched
this disagreement in sympathy, no reasonable person could
conclude that Clinton’s statements put Smith and Woods in a
“highly offensive” false light.
3. With respect to the portion of Count V that survived the
Westfall Act jurisdictional dismissal, the complaint is fatally
deficient as to, at minimum, the first and third elements of an
intentional infliction of emotional distress claim. Under
District of Columbia law, “a plaintiff must show (1) extreme
and outrageous conduct on the part of the defendant which
(2) intentionally or recklessly (3) causes the plaintiff severe
emotional distress.” Armstrong v. Thompson, 80 A.3d 177, 189
(D.C. 2013) (internal quotation marks and citation omitted).
As to the first element, “[t]he conduct must be ‘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 intolerable in a civilized community.’” Id. (quoting
Drejza v. Vaccaro, 650 A.2d 1308, 1312 n.10 (D.C. 1994)).
None of Clinton’s denials of allegations that she lied or her
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remarks that Smith and Woods are incorrect comes close to
meeting that strict standard. In fact, in Weaver v. Grafio, 595
A.2d 983, 985, 991 (D.C. 1991), the D.C. Court of Appeals
held that the defendant’s act of mailing his employers a copy
of a letter to an ethics committee accusing them of a felony was
not outrageous conduct. Here, Clinton did not explicitly accuse
Smith and Woods of lying, let alone of committing a crime.
Likewise, as to the third prong, the complaint is silent as
to how Smith’s or Woods’s emotional distress manifested
itself. The complaint alleges that they suffered “severe
emotional distress stemming from the death of [their] sons.”
Compl. ¶ 52 (emphasis added). But nothing in the factual
allegations plausibly suggests that Clinton’s statements, rather
than the tragic deaths, triggered “emotional distress of so acute
a nature that harmful physical consequences might not be
unlikely to result.” Ortberg v. Goldman Sachs Grp., 64 A.3d
158, 164 (D.C. 2013) (internal quotation marks and citation
omitted).
We affirm the order substituting the United States as a
defendant and dismissing the claims for lack of subject matter
jurisdiction or failure to state a claim.
So ordered.