370 F.3d 1196 (D.C. Cir. 2004), 03-7047, Barr v. Clinton

Docket Nº:03-7047.
Citation:370 F.3d 1196
Party Name:The Honorable Bob BARR, Appellant, v. William Jefferson CLINTON, et al., Appellees.
Case Date:June 11, 2004
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1196

370 F.3d 1196 (D.C. Cir. 2004)

The Honorable Bob BARR, Appellant,

v.

William Jefferson CLINTON, et al., Appellees.

No. 03-7047.

United States Court of Appeals, District of Columbia Circuit

June 11, 2004

Argued April 12, 2004.

Rehearing and Rehearing En BancDenied Aug. 3, 2004. [*]

Page 1197

[Copyrighted Material Omitted]

Page 1198

Appeal from the United States District Court for the District of Columbia (No. 02cv00437).

Paul J. Orfanedes argued the cause for appellant. With him on the briefs was Larry E. Klayman.

Suzanne H. Woods argued the cause for appellees. With her on the brief were David E. Kendall, Roger W. Wilcox Jr., and William Alden McDaniel Jr. John G. Perazich and Paul J. Cambria Jr. entered appearances.

Before: EDWARDS, RANDOLPH, and TATEL, Circuit Judges.

OPINION

TATEL, Circuit Judge:

In this lawsuit, Congressman Bob Barr charges that President Clinton and one of his political advisors unlawfully conspired with Larry Flynt, publisher of Hustler magazine, to gather and disseminate disparaging information about Barr in order to retaliate for his role in the Clinton impeachment proceedings. The district court dismissed the complaint, finding it time barred and, alternatively, that it failed to state a claim upon which relief could be granted. We affirm, but on different grounds. We affirm the dismissal

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as to Clinton and his advisor because the complaint fails to allege that either took any action within the statute of limitations to further the conspiracy, and as to Flynt because the complaint fails to allege that the disparaging information was either false or published with reckless or knowing disregard for its falsity, as required by the First Amendment.

I.

Because the district court dismissed the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), we construe the complaint "liberally," granting plaintiff "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) (reviewing 12(b)(6) dismissal); accord Artis v. Greenspan, 158 F.3d 1301, 1305-06 (D.C.Cir. 1998) (reviewing 12(b)(1) dismissal). Viewed through that lens, the complaint relates the following facts:

Congressman Bob Barr, who represented the seventh district of Georgia from 1995 until 2003, "was the first Congressman to call for [an] impeachment inquiry of former President ... William Jefferson Clinton." Compl. ¶ 9. Barr "repeatedly and aggressively pressed" that position, id., and also served as a House Manager during the U.S. Senate impeachment trial. Id. ¶ 17.

On October 4, 1998, Larry Flynt ran an advertisement in the Washington Post offering one million dollars to anyone who would admit to having had an affair with a member of Congress. Id. ¶ 15. Acknowledging that Flynt's professed objective was to "expose the hypocrisy of members of Congress," the complaint alleges that "[i]n reality," Flynt was acting "in concert with [defendants Clinton and James Carville, a senior member of Clinton's 1992 campaign staff, to] gather[] information from FBI and/or other government files about ... Plaintiff Barr, and disseminate[] information from those files to the media in an attempt to intimidate, impede and/or retaliate against Plaintiff to prevent him from performing his official duties ... and to harm Plaintiff Barr's reputation." Id.

In support of this allegation, the complaint asserts that Carville maintained files containing information about Barr which he had obtained from confidential government sources and "routinely disseminated this material to the media." Id. ¶ 10. In a January 7, 1999 press conference, Flynt's estranged daughter "stated that Flynt had likely been supplied by Defendant Carville with confidential FBI files to assist Flynt in his search for 'dirt' on Congressmen, including [Barr], in an on-going effort ... to prevent them from performing their official duties." Id. ¶ 19. As to Clinton, the complaint alleges that he "approved and ratified" Flynt's efforts to intimidate Barr. Id. ¶ 18. The complaint cites a 1998 Los Angeles Times article stating: "[Clinton] laughed about the fact that Larry Flynt, publisher of Hustler magazine, had become the latest influence on the Washington political debate ... [and] regaled his listeners with a description of a letter that Flynt wrote to independent counsel Kenneth W. Starr ... congratulating Starr for aiding the cause of pornography." Elizabeth Shogren, "Clinton Puts His Faith in History," L.A. Times, Dec. 22, 1998, at A1.

On January 11, 1999, Flynt appeared on a television news program and, according to the complaint, divulged information from the government files, including that Barr "had not told the truth, under oath, in divorce proceedings, and that he had pressured his former wife into having an abortion." Compl. ¶ 21. During a Salon.com interview on February 23, 1999, Flynt not only repeated those accusations,

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but also announced that he intended to publish a one-time issue called The Flynt Report, which would contain additional improperly obtained information about Barr and other officials. Id. ¶ ¶ 29-30.

On several occasions during the impeachment proceedings, Barr expressed his concern about defendants' alleged efforts to gather and disseminate negative information about him. He wrote to President Clinton on March 30, 1998, seeking access to all White House documents relating to him. Id. ¶ 13. On March 3 and April 2, 1999, he also wrote to Attorney General Janet ReNo. Alleging that the attacks and threatened attacks by Carville, Flynt, and others amounted to "a deliberate and concerted effort to impede" the impeachment process, Barr requested a formal Justice Department investigation. Id. ¶ ¶ 32, 34. In response, the Justice Department informed Barr that it had reviewed the matter and determined that an investigation was unwarranted. Id. ¶ ¶ 33, 35.

Finally, on April 5, 1999, Flynt and L.F.P., Inc., his publishing company, released The Flynt Report. Id. ¶ 31. Attached to the complaint, the report states, among other things, that Barr "failed to tell the truth about adulterous sex while under oath in a 1986 deposition," and that, in contrast to his "public opposition to abortion," he "drove [his wife] to the clinic to have [an] abortion performed [and l]ater he returned to the facility to pick her up and paid for the procedure." The Flynt Report 20-24 (L.F.P., Inc.1999).

On March 7, 2002, Barr filed suit in the United States District Court for the District of Columbia against defendants Clinton, Carville, Flynt, and L.F.P., Inc. In the only count at issue in this appeal, Barr claimed that the defendants violated 42 U.S.C. § 1985(1) by conspiring to prevent him from performing his official duties. Section 1985(1) makes it unlawful for "two or more persons ... [to] conspire to prevent, by force, intimidation, or threat, any person ... from discharging any duties [of public office]; ... or to injure him in his person or property on account of his lawful discharge of the duties of his office." 42 U.S.C. § 1985(1) (2000). Among other things, section 1985 plaintiffs must allege the elements of civil conspiracy, including: "an agreement to take part in an unlawful action or a lawful action in an unlawful manner." Hall v. Clinton, 285 F.3d 74, 83 (D.C.Cir. 2002). Seeking damages in excess of $30 million, see Compl. ¶ 41, Barr alleged that defendants:

tacitly or explicitly agreed, in violation of 42 U.S.C. § 1985(1), to participate in a common scheme and unlawful on-going conspiracy ... in furtherance [of which they] recommended, agreed to, and participated in obtaining information from Plaintiff's confidential FBI and/or other government files, in violation of [federal law], then disclosing that information to the public ... [such that] Plaintiff was hindered in the lawful discharge of his duties ... and suffered substantial damages, including, but not limited to loss of reputation and emotional distress.

Id. ¶ ¶ 38-40.

All defendants filed motions to dismiss under rules 12(b)(1) and 12(b)(6). See Fed.R.Civ.P. 12(b)(1) (lack of subject matter jurisdiction); 12(b)(6) (failure to state a claim). They argued that the complaint was barred by the...

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