74 F.3d 1296 (D.C. Cir. 1996), 94-7137, McFarlane v. Esquire Magazine

Docket Nº:94-7137.
Citation:74 F.3d 1296
Party Name:Robert C. McFARLANE, Appellant, v. ESQUIRE MAGAZINE, et al., Appellees.
Case Date:January 30, 1996
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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74 F.3d 1296 (D.C. Cir. 1996)

Robert C. McFARLANE, Appellant,


ESQUIRE MAGAZINE, et al., Appellees.

No. 94-7137.

United States Court of Appeals, District of Columbia Circuit

January 30, 1996

Argued Sept. 6, 1995.

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[Copyrighted Material Omitted]

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Forrest A. Hainline, III, Washington, DC, argued the cause and filed the briefs, for appellant.

Bruce W. Sanford, Washington, DC, argued the cause, for appellees. With him on the brief were Lee T. Ellis, Jr., Henry S. Hoberman and Robert D. Lystad.

Before: WILLIAMS, GINSBURG and RANDOLPH, Circuit Judges.


In the late '80s and early '90s articles appeared in the American press asserting an "October Surprise"--a scheme by members of the 1980 Reagan-Bush campaign team to thwart President Carter's efforts to negotiate

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the release of Iran's American hostages by inducing the Iranians to delay their agreement. Ultimately (in January 1993) a bipartisan task force of the House of Representatives emphatically rejected these claims. See Joint Report of the Task Force to Investigate Certain Allegations Concerning the Holding of American Hostages by Iran in 1980, H. Rep. No. 102-1102 (102d Cong., 2d Sess.) ("Task Force Report"). In the meantime, however, defendant Craig Unger wrote and defendants Esquire Magazine and Hearst Corporation (collectively "Esquire") published an article sketching out the conspiracy theory in lurid terms. The magazine's October 1991 cover asked, "Did the Republicans conspire with Iran and Israel to delay the release of the hostages and steal the 1980 presidential election?" The article's answer appeared to be a qualified Yes.

In a breathless and kaleidoscopic account rivaling an Oliver Stone movie, Unger writes that plaintiff Robert McFarlane, while an aide to Senator Tower, attended a February 1980 meeting with Iranian officials in Teheran--a meeting that "helped set up later meetings in Madrid, which in turn paved the way for the crucial October rendezvous in Paris." (In the "October rendezvous" George Bush and William J. Casey are supposed to have closed the deal by which Iranians stalled hostage negotiations in exchange for promises of arms. But see Task Force Report at 173 (finding that the records and testimony "conclusively prove candidate George Bush's whereabouts in October 1980," and that he did not travel to Paris in the period alleged).) It is not said just how the February meeting "helped set up" later meetings (or how those "paved the way" for the supposed climax in Paris), but in the course of the account the defendants used language effectively calling McFarlane an Israeli spy. McFarlane focuses on this passage, which quotes from Ari Ben-Menashe, a self-professed former Israeli spy and a major source for conspiracy theorists:

In February 1980, Ben-Menashe says, Robert "Bud" McFarlane, then an aide to Senator John Tower, and Earl Brian, a businessman who had been secretary of health in Reagan's California cabinet, met highly placed Iranian officials in Teheran. In a sworn affidavit submitted by Elliott [sic] Richardson on behalf of one of his clients, a computer-software company called Inslaw, Ben-Menashe states that both McFarlane and Brian had a "special relationship" with Israeli intelligence, McFarlane having been recruited by Rafi Eitan, a legendary Israeli agent who was the model for a leading character in John LeCarre's Little Drummer Girl. "McFarlane was the famous Mr. X in the Pollard case," adds Ben-Menashe, referring to the trial of Jonathan Pollard, an American convicted of spying for Israel. In Pollard's case there were persistent allegations about another, unnamed American who secretly worked for the Israelis.

Both McFarlane and Brian have declined comment.

McFarlane and Brian's visit, Ben-Menashe says, helped set up later meetings in Madrid, which in turn paved the way for the crucial October rendezvous in Paris.

(Emphasis added, except for Little Drummer Girl.)

Unger's article discloses doubts about Ben-Menashe's credibility, including quotations from intelligence officials and journalists calling him a "fake" and a "con man." The article also says that Ben-Menashe took a lie detector test for a news organization and "failed miserably," but then adds that "it's almost impossible to dismiss him."

McFarlane brought suit against both Esquire and Unger in the U.S. District Court for the District of Columbia, alleging that the above passage falsely conveyed to Esquire's readers that McFarlane was an Israeli spy and a traitor to his country. After discovery the district court granted defendants' motion for summary judgment. It held that it had no personal jurisdiction over Unger and that no reasonable jury could have found, by clear and convincing evidence, that Esquire had published the piece with "actual malice," i.e., with knowledge that the statements were false or with reckless disregard of their probable falsity, which McFarlane, as an undisputed public figure, would have to prove in order to win his case. See New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct.

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710, 725-26, 11 L.Ed.2d 686 (1964); Liberty Lobby, Inc. v. Dow Jones & Co., Inc., 838 F.2d 1287, 1293 (D.C.Cir.1988). We affirm.

* * *

I. Personal jurisdiction over Unger

McFarlane claims that the court had personal jurisdiction over Unger by virtue of subsection (3) or (4) of the District's statute relating to personal jurisdiction based on conduct linked to the District:

(a) A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person's--

(1) transacting any business in the District of Columbia;

. . . . .

(3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia;

(4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia.

D.C.Code 1981 Sec. 13-423(a). Although the D.C. Court of Appeals reads subsection (1) to extend to the "limits of due process," see Environmental Research Int'l v. Lockwood Greene Eng., 355 A.2d 808 (D.C.1976), McFarlane does not assert it. See also Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) (exploring limits of due process as applied to personal jurisdiction over out-of-state writer of an article defaming a resident of the forum state). And the subsections he does assert are unavailing. The first, Sec. 13-423(a)(3), requires that both tortious injury and an act predicate to it take place within the District. But Unger's acts were not in the District; it is undisputed that he wrote the article in New York and delivered it to Esquire in New York. The case is therefore like Moncrief v. Lexington Herald-Leader Co., 807 F.2d 217 (D.C.Cir.1986), where the defendant in Kentucky published and mailed a newspaper that allegedly defamed the plaintiff in the District, and we found no basis for jurisdiction under subsection (3).

McFarlane argues that in a libel action the injury is part of the tort, so that, in law, the defendant has committed an act within the District. We rejected that claim in Moncrief, on the ground that to accept it would obliterate subsection (3)'s careful distinction between "injury" and "act." Id. at 220-21. McFarlane appears to concede that circuit precedent excludes Unger from the purview of Sec. 13-423(a)(3), and invites us to overrule Moncrief. But we have no power to do so, even if we thought it desirable. One panel of the court does not have authority to overrule another. See, e.g., United States v. Caldwell, 543 F.2d 1333, 1369 n. 19 (D.C.Cir.1974).

Section 13-423(a)(4) is of no more help to McFarlane. It contemplates jurisdiction when there is tortious injury within the District accompanied by any of three specified kinds of additional contacts between the District and the defendant, not necessarily related to the contested act or injury. Crane v. Carr, 814 F.2d 758, 763 (D.C.Cir.1987). McFarlane has not shown that Unger had any of the specified types of contacts. His appeal makes no claim at all on the third type--deriving substantial revenue from goods used or consumed, or services rendered, in the District. Invoking the first and second types (regular business or persistent course of conduct), he points to the fact of Unger's having written for six national publications whose circulations include the District and, on two occasions, writing for District-based publications (the Washington Post and the New Republic). But writing an article for a publication that is circulated throughout the nation, including the District, hardly constitutes doing or soliciting business, or engaging in a persistent course of conduct, within the District. The writer is not the publisher; Unger's contacts must be assessed separately. See Keeton v. Hustler Magazine, 465 U.S. 770, 781 n. 13, 104 S.Ct. 1473, 1482 n. 13, 79 L.Ed.2d 790 (1984).

Thus we are left with two articles appearing in Washington-based publications, one in

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the Washington Post (which was written after McFarlane's complaint was filed and is therefore no basis for personal jurisdiction, see Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 52 (2d Cir.1991); Asarco, Inc. v. Glenara, Ltd., 912 F.2d 784, 787 n. 1 (5th Cir.1990)) and one in the New Republic. If "regularly" and "persistent" are to have any meaning, sale of two articles to District-based publications over a career in journalism cannot amount to "regularly" doing...

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