Browning v. Clinton, No. 01-5050.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Tatel
• Citation: 292 F.3d 235
• Parties: Dolly Kyle BROWNING and Direct Outstanding Creations Corporation, Appellants v. William Jefferson CLINTON, et al., Appellees
• Docket Number: No. 01-5050.
• Decision Date: 11 June 2002

292 F.3d 235 Dolly Kyle BROWNING and Direct Outstanding Creations Corporation, Appellants
v.
William Jefferson CLINTON, et al., Appellees No. 01-5050. United States Court of Appeals, District of Columbia Circuit. Argued April 5, 2002. Decided June 11, 2002. Rehearing Denied August 1, 2002.

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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.

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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 "longstanding friendship" with former President Clinton — a friendship she alleges "included an extramarital, sexual relationship" — 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. ¶¶ 15, 20. Browning copyrighted her novel in 1988 and sent it to Warner Books, where an editor "encouraged [her] to continue to work on [it]." Id. ¶ 22. Thereafter, Browning charges, Clinton 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. ¶ 32. Clinton's brother also "threaten[ed] [her]" by phone. Id. ¶ 33. The following year, appellee Bruce Lindsey, then serving as Deputy White House Counsel, "threatened... Browning by telling her sister[,] `we've read your sister's book and we don't want it published.'" Id. ¶ 38.

In 1994, Browning and Clinton met at their thirtieth high school reunion where, according to Browning, Clinton "apologized to [her] for the threat that had been made against her." Id. ¶ 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. ¶ 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 Weekly 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 á clef that could knock Primary Colors right out

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of the headlines." Id. ¶ 47 (internal quotation marks omitted) (first alteration in original). In the end, however, Browning received no "positive responses, offers to publish, or contracts from any of the publishers that she contacted." Id. ¶ 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. ¶ 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 mistress." Id. ¶ 51 (internal quotation marks omitted). According to the article, although "[i]t seemed plausible ... that [such] a memoir ... would find a home at Regnery [Publishing 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 appellee 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. ¶ 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. ¶ 73. Scott's portion reports that Browning "repeatedly" stated that "her story was not true but ... she was angry and needed money." Id. ¶ 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 Browning describing her alleged affair with Clinton. Appellee Robert S. Bennett, Clinton's attorney, appeared on CNN and described Jones's filing as "scurrilous." Id. ¶ 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 substantial evidence ... to rebut that salacious material.

Id. ¶ 81.

Based on the foregoing, Browning asserts eight common and federal law claims: (1) tortious interference with prospective business opportunity (against all appellees); (2) disparagement 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

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(against Clinton, Lindsey, Scott, and Bennett); (6) civil RICO (against Clinton and Lindsey); (7) Bivens liability for violation 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 dismissed 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, 78 S.Ct. 99, 2 L.Ed.2d 80 (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] plaintiff[] 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 plaintiff'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." Swierkiewicz v. Sorema N.A., 534 U.S. 506, ___, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002) (quoting Conley, 355 U.S. at 47, 78 S.Ct. 99). 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 § 1357, at 347-48 (2d ed.1990) (explaining that Rule 12(b)(6) dismissal is appropriate 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...