Jankovic v. Int'l Crisis Grp.

• Decision Date: 10 May 2016
• Docket Number: 14–7178.,Nos. 14–7171,s. 14–7171
• Citation: 822 F.3d 576
• Parties: Milan JANKOVIC, also known as Philip Zepter, Appellant Fieldpoint B.V. and United Business Activities Holding, A.G., Appellees v. INTERNATIONAL CRISIS GROUP, a Non–Profit Organization, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

822 F.3d 576

Milan JANKOVIC, also known as Philip Zepter, AppellantFieldpoint B.V. and United Business Activities Holding, A.G., Appellees

v.INTERNATIONAL CRISIS GROUP, a Non–Profit Organization, et al., Appellees.

Nos. 14–7171

14–7178.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 10, 2016.

Decided May 10, 2016.

Rehearing En Banc Denied June 24, 2016.^*

Rodney A. Smolla argued the cause for appellant. With him on the briefs were William T. O'Brien, Lisa Norbett Himes, John W. Lomas Jr., and Malcolm I. Lewin.

Michael D. Sullivan argued the cause for appellees. With him on the brief were Thomas Curley, Mara J. Gassmann, Neil H. Koslowe, and Jonathan Greenblatt.

Hashim M. Mooppan was on the brief for amici curiae The Brookings Institution, et al. in support of defendants-appellees.

Before: HENDERSON, ROGERS and SRINIVASAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

Milan Jankovic, also known as Philip Zepter, sued the International Crisis Group (“ICG”) for defamation based on a statement in one of its reports that linked him to the Slobodan Milosevic regime. This is the third time this case is before the court. We twice previously reversed the dismissal of the complaint and remanded the case. Jankovic v. Int'l Crisis Grp. (Jankovic I), 494 F.3d 1080 (D.C.Cir.2007) ; Jankovic v. Int'l Crisis Grp. (Jankovic II), 593 F.3d 22 (D.C.Cir.2010). In the first appeal, the court held that one statement in an ICG report was capable of defamatory meaning, and, in the second appeal, the court rejected ICG's defenses that the statement was merely an opinion or a fair report or comment on a government document. Zepter now appeals the grant of summary judgment to ICG. Jankovic v. Int'l Crisis Grp. (Jankovic III), 72 F.Supp.3d 284 (D.D.C.2014). He contends that the district court erred in ruling that he was a limited-purpose public figure, and alternatively that, to the extent he was, the district court erred in finding that he failed to proffer evidence from which a reasonable jury could find by clear and convincing evidence that ICG published the defamatory statement with actual malice.

Upon de novo review, we hold that summary judgment was appropriately granted. On the evidence before the district court, Zepter was a limited-purpose public figure with respect to the public controversy surrounding political and economic reform in Serbia and integration of Serbia into international institutions during the post-Milosevic era. Contrary to his suggestion, he was not a mere bystander engaged in civic duties but was an advisor to and financial supporter of Prime Minister Zoran Djindjic, who came into power following Milosevic's ouster. Further, Zepter's mustering of evidence, deficient in part due to his procedural defaults, fails to show by clear and convincing evidence that ICG acted with actual malice in publishing the statement. Accordingly, we affirm.

I.

This appeal arises out of publication by the International Crisis Group of Serbian Reform Stalls Again (“Report 145”), a report about reforms in the wake of the assassination of Prime Minister Zoran Djindjic. This report followed closely after ICG's publication of Serbia After

Djindjic

(“Report 141”). ICG, a non-profit, multinational organization with over 90 staff members on five continents published reports like these as part of its mission to influence policymakers and to prevent and resolve deadly conflict. Jankovic I, 494 F.3d at 1084–85. These two reports were primarily authored and researched by James Lyon, who was ICG's project director for Serbia from 2000 through 2005.

Briefly: In 1999, Serbia was marred by violence as its President, Slobodan Milosevic, carried out a pattern of ethnic violence in the Serbian province of Kosovo. These actions resulted in military intervention by the North Atlantic Treaty Organization (“NATO”) and imposition of sanctions by the United States and European countries. Milosevic lost the presidency in a democratic election in 2000, but his successor, President Vojislac Kostunica, faced a politically powerful parliament led by Prime Minister Zoran Djindjic, who favored sweeping changes of Milosevic's policies. In 2001, Prime Minister Djindjic extradited Milosevic to The Hague, Netherlands, to stand trial for war crimes. Prime Minister Djindjic was assassinated in 2003. See Jankovic III, 72 F.Supp.3d at 292.

Report 145, as described by its principal author, addressed, among other things, the inability of the post-Milosevic Serbian government to achieve political and economic reform and to assert civilian control over the Milosevic-era police, military, and intelligence structures. It also analyzed continuing concerns about the influence of wealthy businessmen, some of whom were considered to have been closely connected to these power structures, on Serbia's fledgling democracy. ICG's concern was that without meaningful political and economic reform the prospect of further ethnic violence and national conflict in Serbia and the Balkans was likely.

As a successful businessman, Zepter was concerned about some of the negative statements ICG made about him in their reports. Born and raised in Serbia, Zepter established a successful cookware company after college and that business achieved success throughout Europe. Jankovic III, 72 F.Supp.3d at 292. Over time, Zepter expanded his business into other areas, including banking, and he had banking interests in Serbia while Milosevic was in power. He filed suit, alleging that statements in the two ICG reports and an e-mail sent by the principal author of the reports were defamatory, but this court held that only claims related to a three-paragraph statement in Report 145 could proceed. Jankovic I, 494 F.3d at 1084. That statement described Zepter as a member of the “New Serbian Oligarchy” and stated, for example, that he was “associated with the Milosevic regime and benefitted from it directly.” Report 145, at 17. It also stated that individuals like Zepter continued to be in positions of power and to enjoy access to public resources, and that few of the “crony companies” had been subject to legal action despite promises by reformers. Id. at 17–18. The court concluded that a reasonable reader could construe the statement as asserting “that Philip Zepter, personally, was a ‘crony’ of Milosevic who supported the regime in exchange for favorable treatment” and “that Philip Zepter was actively in alliance with Milosevic and his regime.” Jankovic I, 494 F.3d at 1091.

Having determined that the statement in Report 145 was capable of defamatory meaning, the court subsequently rejected ICG's defenses of fair report, fair comment, and opinion. Jankovic II, 593 F.3d at 26–28. ICG had supported portions of the statement with a list of frozen assets that was prepared by the U.S. Office of Foreign Assets Control (“OFAC”), and an accompanying Executive Order. See id. at 26–27. Although the list included the assets of a bank established by Zepter, the court held neither the fair report nor comment privileges applied because the list included the assets of all Serbian financial institutions, whether or not operated by Milosevic cronies. See id. at 26–27, 29. The court also rejected ICG's position that the statement was merely an opinion, concluding it was “sufficiently factual to be susceptible of being proved true or false.” Id. at 27–28 (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 21, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) ). To the extent it might have been an opinion, the court concluded it was not privileged because the opinion's factual basis was not fully disclosed in the report. See id. at 28.

Upon remand, the parties filed motions for summary judgment. Zepter moved for partial summary judgment, seeking to establish that he was a private figure and that the defamatory passage was false. ICG moved for summary judgment on the grounds that Zepter was a limited-purpose public figure and he had failed to proffer sufficient evidence of actual malice. The district court agreed with ICG. Jankovic III, 72 F.Supp.3d at 301, 316–17. In granting summary judgment to ICG, the district court took note of various procedural defaults that hindered Zepter's ability to meet his burden, including failing to seek timely discovery of Lyon's sources, see id. at 314 n. 32, and to dispute some of ICG's material facts, id. at 290.

Zepter appeals the grant of summary judgment, and our review is de novo, Lohrenz v. Donnelly, 350 F.3d 1272, 1274 (D.C.Cir.2003), while examining evidentiary and discovery rulings for abuse of discretion, Morrison v. Int'l Programs Consortium, Inc., 253 F.3d 5, 9 (D.C.Cir.2001).

II.

The Supreme Court has long enshrined “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (internal citation omitted). An action for defamation can be maintained only to the extent it does not interfere with First Amendment rights of free expression. Thus, “a public official” may not “recover[ ] damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice,’ that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 279–80, 84 S.Ct. 710. Since New York Times, the Court has explained that a similar rule applies to public figures, and, accordingly, speech relating to public officials and public figures, as distinct from private persons, enjoys greater protection under the First Amendment. Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) ; Curtis Publ'g Co. v. Butts, 388 U.S. 130, 154, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).

The...