UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) DEVIN G. NUNES, ) ) Plaintiff, ) ) v. ) Case No. 20-cv-01403 (APM) ) WP COMPANY LLC, ) D/B/A THE WASHINGTON POST, ) AND SHANE HARRIS ) ) Defendants. ) _________________________________________ )
MEMORANDUM OPINION
I. INTRODUCTION
This case arises from an article published in The Washington Post concerning a purported
conversation that Plaintiff Representative Devin G. Nunes had with President Donald J. Trump
about a classified intelligence briefing. Plaintiff filed this suit against Defendants WP Company
LLC (d/b/a The Washington Post) (“the Post”) and Shane Harris, one of the article’s authors,
alleging defamation and civil conspiracy. Plaintiff has yet to serve Defendant Harris. The Post
now moves to dismiss the Complaint for failure to state a claim.
For the reasons outlined below, the court grants the Post’s Motion to Dismiss and denies
Plaintiff’s Motion for Leave to File an Amended Complaint for futility.
II. BACKGROUND
A. Factual Background
Plaintiff has served in the U.S. House of Representatives since 2003. Compl., ECF No. 1
[hereinafter Compl.], ¶ 8. He represents California’s 22nd Congressional District, which is in the
San Joaquin Valley and includes portions of Tulare and Fresno Counties, and he currently serves as the Ranking Member of the House Permanent Select Committee on Intelligence (the “House
Intelligence Committee”). Id.
On February 21, 2020, the Post published an article titled “Senior intelligence official told
lawmakers that Russia wants to see Trump reelected.” Id. ¶ 3; Def.’s Mem. of Law in Supp. of
Mot. to Dismiss, ECF No. 9 [hereinafter Def.’s Mem.], Ex. A, ECF No. 9-1 [hereinafter Article].
The Article reported that Shelby Pierson, a senior U.S. intelligence official, told members of the
House Intelligence Committee, including Plaintiff, that Russia had “developed a preference” for
President Trump and wanted to see him reelected. Id. According to an unnamed committee
official, the briefing was open to all Committee members and covered “election security and
foreign interference in the run-up to the 2020 election.” Id. The Article did not specify the date
of the briefing. See id.
The Article went on to report that President Trump “learned about Pierson’s remarks from
Rep. Devin Nunes (Calif.), the committee’s ranking Republican and staunch Trump ally.” Id. The
Article continued: “Trump grew angry at his acting director of national intelligence, Joseph
Maguire, in the Oval Office, seeing Maguire and his staff as disloyal for speaking to Congress
about Russia’s perceived preference.” Id. Citing “people familiar with the matter,” the Article
noted that “Trump erroneously believed that Pierson had given the assessment exclusively to Rep.
Adam B. Schiff (D-Calif.), the chairman of the House Intelligence Committee.” Id. The Article
did not specify the source or basis for the President’s erroneous belief. See id. President Trump
reportedly said that “Maguire should not have let the Capitol Hill briefing happen—particularly
before he received the briefing—and that he should not have learned about it from a congressman,”
an apparent reference to Plaintiff. Id. The Article reported that “[Pierson’s] analysis and Trump’s
furious response ruined Maguire’s chances of becoming the permanent intelligence chief.” Id.
2 Maguire had been considered “a leading candidate to be nominated to the post of [Director of
National Intelligence], . . . [b]ut Trump’s opinion shifted . . . when he heard from [Nunes] about
the official’s remarks.” Id. The Article noted that, on Wednesday, February 19, 2020, President
Trump announced on Twitter that he was replacing Maguire with Richard Grenell, the then–U.S.
ambassador to Germany and “a vocal loyalist.” Id.
B. Procedural Background
On March 2, 2020, Plaintiff originally filed this action against Defendants in the Eastern
District of Virginia, alleging one count of defamation per se and one count of common law
conspiracy. Id. ¶¶ 16–29. In his Complaint, Plaintiff contends that statements in the Article,
“republished millions upon millions of times,” id. ¶ 15, “accuse and impute to [him] criminal
misconduct” and “prejudice [him] in his profession and employment as a United States
Congressman,” id. ¶ 18. Specifically, he identifies two statements as false and defamatory:
(1) that Plaintiff told President Trump that Pierson had given her assessment of Russia’s preference
for President Trump “exclusively to Rep. Adam Schiff” and (2) that the President’s “opinion of
Maguire shifted” after hearing from Plaintiff about Pierson’s remarks. Id. ¶ 4. The Complaint
seeks at least $250,000,000 in compensatory damages and at least $350,000 in punitive damages.
Id. at 23.
On March 26, 2020, the Post moved to dismiss the Complaint for failure to state a claim
and also moved to transfer the case to the District Court for the District of Columbia. See Def.’s
Mot. to Dismiss Compl., ECF No. 8; Def.’s Mot. to Transfer, ECF No. 10. In moving to dismiss,
the Post argued that the Complaint failed to sufficiently allege a false and defamatory statement
and actual malice, and that the civil conspiracy claim failed for the same reasons. See Def.’s Mem.
at 8–17, 26–28. In addition, asserting that California law applies to Plaintiff’s claims, the Post
3 maintained that Plaintiff’s claims are procedurally barred in part because he failed to provide notice
of them under California’s Retraction Statute, Cal. Civ. Code § 48a. See id. at 17–24. Due to that
failure, according to the Post, all that is available as a remedy to Plaintiff under California law is
special damages, which he did not plead. See id. at 24–26.
On May 27, 2020, the case was transferred to this court, ECF No. 21, where the Post
renewed its motion to dismiss, see Def.’s Suppl. Br., ECF No. 24. Nearly four months later, with
the motion to dismiss still pending, Plaintiff asked for leave to file an amended complaint. See
Pl.’s Mot. for Leave to File Amended Compl., ECF No. 30 [hereinafter Pl.’s Mot. for Leave]. The
proposed amendments do not alter Plaintiff’s substantive allegations but rather add a new false
light invasion of privacy claim, respond to the Post’s procedural defense under California’s
Retraction Statute, and shore up Plaintiff’s pleading on special damages. See Pl.’s Mot. for Leave,
First Am. Compl., ECF No. 30-1 [hereinafter Am. Compl.]
III. LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint. Sickle v.
Torres Advanced Enter. Sols., LLC, 884 F.3d 338, 344 (D.C. Cir. 2018). “To survive a motion to
dismiss, a complaint must contain sufficient factual matter . . . to state a claim to relief that is
plausible on its face.” Id. at 344–45 (alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). A claim is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
When evaluating a motion under Rule 12(b)(6), the court must “accept the plaintiff’s
factual allegations as true,” Sickle, 884 F.3d at 345, and “construe the complaint in favor of the
plaintiff, who must be granted the benefit of all inferences that can be derived from the facts
4 alleged,” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012) (internal quotation marks
omitted). The court need not accept as true, however, “a legal conclusion couched as a factual
allegation.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id.
In determining whether a complaint fails to state a claim under Rule 12(b)(6), a court “may
consider only the facts alleged in the complaint, any documents either attached to or incorporated
in the complaint and matters of which [the court] may take judicial notice.” Trudeau v. FTC, 456
F.3d 178, 183 (D.C. Cir. 2006) (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621,
624–25 (D.C. Cir. 1997)). As relevant here, “[a] district court may consider documents attached
to a motion to dismiss, without converting the motion into a motion for summary judgment, if
those documents’ authenticity is not disputed, they were referenced in the complaint, and they are
‘integral’ to one or more of the plaintiff’s claims.” See Scott v. J.P. Morgan Chase & Co., 296 F.
Supp. 3d 98, 105 (D.D.C. 2017) (citing Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1133
(D.C. Cir. 2015) and Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004)).
IV. DISCUSSION
The Complaint contains two related counts: The first claims that Defendants defamed
Plaintiff; the second claims that Defendants conspired with House Democrats to defame
him. Compl. ¶¶ 16–29. The Post argues that both counts should be dismissed for failure to state
a claim. See Def.’s Mem. As explained below, the court agrees. 1 And because Plaintiff’s
1 Because the court finds that Plaintiff fails to plead plausible claims of defamation and civil conspiracy, the court does not reach the thorny question of whether the California Retraction Statute applies to Plaintiff’s claims and limits his relief to special damages.
5 proposed amendments fail to cure the Complaint’s fundamental defects, the court also denies
Plaintiff’s Motion for Leave to File an Amended Complaint.
A. Count I: Defamation
1. Defamation by Implication
Although Plaintiff styles the first count as “defamation per se,” Compl. at 15, his claims
are more appropriately considered defamatory implication claims. “[D]efamation by implication
stems not from what is literally stated, but from what is implied.” White v. Fraternal Order of
Police, 909 F.2d 512, 518 (D.C. Cir. 1990). Plaintiff does not challenge the substantial truth of
any statement in the Article. See Compl. ¶ 4 (taking issue with one statement not actually in the
Article and contesting another statement’s implication). Rather, he alleges that “[t]he defamatory
gist of the [Article] is that Plaintiff lied to and deceived the President of the United States[.]” Id.
¶ 5 (emphasis added); Pl.’s Mem. in Opp’n to Def.’s Mot. to Dismiss, ECF No. 15 [hereinafter
Pl.’s Opp’n], at 4–5 (same). Thus, Plaintiff contests not any assertion of fact contained in the
Article but, rather, the meaning conveyed by those facts.
To establish defamation by implication, the plaintiff must demonstrate (1) that “a
defamatory inference can reasonably be drawn” and (2) that “the particular manner or language in
which the true facts are conveyed” supplies “additional, affirmative evidence suggesting that the
defendant intends or endorses the defamatory inference.” White, 909 F.2d at 520. 2 Here, the
2 Although the parties disagree on which state’s defamation law applies, compare Pl.’s Opp’n at 10–12, with Def.’s Mem. at 17–22, the Post’s defenses are derived from the First Amendment’s protections, so the court need not make a choice-of-law determination for present purposes. In any event, as to the grounds for dismissal, neither side has suggested any material difference in the applicable law. See, e.g., Jankovic v. Int’l Crisis Grp., 494 F.3d 1080, 1088 (D.C. Cir. 2007) (applying D.C. law and stating that a plaintiff must allege, among other things, “that the defendant made a false and defamatory statement concerning the plaintiff” (internal quotation marks omitted)); Schaecher v. Bouffault, 772 S.E.2d 589, 594 (Va. 2015) (“An ‘actionable’ statement is both false and defamatory.”); Taus v. Loftus, 151 P.3d 1185, 1209 (Cal. 2007) (indicating the same).
6 Complaint alleges two defamatory implications stemming from statements in the Article, neither
of which can rationally be considered reasonable or intended or endorsed.
Plaintiff first alleges that Defendants defamed him by implying that he “lied to and
deceived the President of the United States” by telling the President that Shelby Pierson “had given
an exclusive briefing” to Representative Adam Schiff. Compl. ¶¶ 4–5. The Article does not,
however, say that Plaintiff told the President that Pierson had delivered an “exclusive briefing” to
Representative Schiff. It reports only that “Trump erroneously believed that Pierson had given the
assessment exclusively to Rep. Adam B. Schiff.” Article. Plaintiff pieces that statement together
with the Article’s subsequent statement that “Trump learned about Pierson’s remarks from
[Plaintiff]” to allege the implication that Plaintiff lied to the President. Compl. ¶¶ 4–5. But such
an inference is unreasonable. Even if one could plausibly read the Article as implying that
Plaintiff’s communications with President Trump somehow contributed to the President’s
erroneous belief, nothing in the Article suggests that Plaintiff affirmatively “lied to and deceived”
the President. As the Post notes in its brief: “In the absence of any other explanation, the
reasonable assumption is that there was a simple misunderstanding or miscommunication.” Def.’s
Mem. at 10. The defamatory implication Plaintiff asserts is further negated by the Post’s
description of the briefing as one “offered to all members of the committee.” Article. That
uncontested fact leaves the reader with the impression that the President’s “erroneous”
understanding was the product of mistake or misunderstanding, not a falsehood uttered by Plaintiff.
This view is reinforced by the Article’s description of Plaintiff as “a staunch Trump ally.” Article.
Plaintiff points to no facts to support the inference that a “staunch ally” would deliberately deceive
the President about the exclusivity of an intelligence briefing, when the fact of the briefing’s access
7 to all members was so readily ascertainable. For these same reasons, the alleged defamatory
inference cannot be considered either intended or endorsed by Defendants.
Plaintiff’s second alleged implication fares no better. The Complaint highlights the
Article’s statement that “Trump’s opinion of [Acting Director of National Intelligence Maguire]
shifted . . . when he heard from a Republican ally about [Pierson’s] remarks.” Compl. ¶ 4. In
Plaintiff’s view, that statement implies that Plaintiff sought “to ‘ruin’ Maguire’s chances of
becoming the permanent intelligence chief.” See id. But as the Post points out, the Article explains
that it was “[t]he intelligence official’s analysis and Trump’s furious response [that] ruined
Maguire’s chances of becoming the permanent intelligence chief,” not Plaintiff’s characterization
of Pierson’s remarks. Def.’s Mem. at 12 (alterations in original) (quoting the Article). As a result,
any inference that Plaintiff sought to “ruin” Maguire’s chances for appointment as Director of
National Intelligence is unreasonable. And assuming it were reasonable, Plaintiff provides no
warrant for the idea that “the particular manner or language” of the Article’s statements supplies
“additional, affirmative evidence suggesting that the [Post] intends or endorses” such an inference.
White, 909 F.2d at 520.
2. Actual Malice
Even if the court were to treat Plaintiff’s claims as straightforward defamation claims, the
Post argues that Count I should be dismissed for an independent reason: The Complaint does not
plausibly allege that Defendants acted with “actual malice.” Def.’s Mem. at 12–17. The court
agrees.
At the outset, Plaintiff does not dispute that he is a “public figure” for purposes of
defamation law. See generally Pl.’s Opp’n. Accordingly, to make out any kind of defamation
claim, Plaintiff must plausibly allege that Defendants published the Article “with ‘actual malice,’
8 that is, with ‘knowledge that it was false or with reckless disregard of whether it was false or not.’”
Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1292 (D.C. Cir. 1988) (quoting N.Y. Times
v. Sullivan, 376 U.S. 254, 280 (1964)). Stated another way, Plaintiff must plead facts that would
render it plausible that Defendants “in fact entertained serious doubts as to the truth of [their]
publication.” St. Amant v. Thompson, 390 U.S. 727, 731 (1968). He fails to do so.
Instead of engaging with the Post’s arguments on actual malice, Plaintiff repeats various—
largely conclusory—allegations from his Complaint. See Pl.’s Opp’n at 16–21. One set of
allegations amounts to nothing more than the naked assertion that Defendants knew the statements
in the Article were false. See id. at 16–18 (citing Compl. ¶ 21(a) (Defendants “manufactured the
statements out of whole cloth”); id. ¶ 21(b) (Defendants “conceived the story line in advance of
any investigation”); id. ¶ 21(f) (“The words chosen by [Defendants] . . . evince their . . . actual
malice.”)). This type of pleading, which offers no more than “labels and conclusions” and a
reference to the relevant legal standard, does not satisfy Rule 8. Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555); see also id. (noting that a complaint does not suffice “if it tenders
naked assertions devoid of further factual enhancement” (cleaned up)).
Another set of allegations boils down to the claim that Defendants published the Article
due to animus against Plaintiff and others. See Pl.’s Opp’n at 16, 18–21 (citing Compl. ¶ 7
(Defendants “republished false statements in order to impugn Plaintiff’s reputation and undermine
his relationship with the President”); id. ¶ 21(g) (Defendants “harbor an institutional hostility,
hatred, extreme bias, spite and ill-will towards Plaintiff”); id. ¶ 21(h) (Defendants “published and
republished the false defamatory statements about Plaintiff out of a desire to hurt Plaintiff and to
permanently stigmatize him”); id. ¶ 21(i) (Defendants published the Article “out of reprisal for the
findings in the December 11, 2019 Inspector General (IG) Report”)). Besides the fact that these
9 allegations are similarly conclusory, “caselaw resoundingly rejects the proposition that a motive
to disparage someone is evidence of actual malice.” Parsi v. Daioleslam, 890 F. Supp. 2d 77, 90
(D.D.C. 2012); see also Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 665 (1989)
(“[A defendant’s] motive in publishing a story . . . cannot provide a sufficient basis for finding
actual malice.”); Arpaio v. Zucker, 414 F. Supp. 3d 84, 92 (D.D.C. 2019) (“[T]he motivations
behind defendants’ communications—inspired by political differences or otherwise—do not
impact whether defendants acted with actual malice as a matter of law.”).
Plaintiff also peppers his opposition brief with several stray allegations that do nothing to
move the needle. First, he cites his allegation that, pre-publication, Defendants initially
represented that Plaintiff and the President met at the White House on February 13, 2020, even
though Defendants did not ultimately include that inaccuracy in the Article. Pl.’s Opp’n at 17
(citing Compl. ¶ 21(c)). The court struggles to understand how a decision not to publish an
inaccurate statement supports the claim that Defendants knowingly published false statements in
the Article. If anything, Defendants’ attempted verification and subsequent exclusion of the
inaccurate statement suggests the opposite. Next, Plaintiff contends that Defendants “abandoned
all journalistic standards and integrity . . . in writing, editing, and publishing the [Article].” Id. at
17–18 (quoting Compl. ¶ 21(d)). Yet Plaintiff nowhere identifies the “journalistic standards and
integrity” that the Post purportedly violated. He cites Gilmore v. Jones for the general proposition
that a “failure to investigate or observe journalistic standards, although not determinative, is
relevant to the actual malice inquiry,” 370 F. Supp. 3d 630, 671 (W.D. Va. 2019) (internal
quotation marks omitted). Pl.’s Opp’n at 18. But in Gilmore itself, the departure from journalistic
standards was a failure to seek comment, see 370 F. Supp. 3d at 674–75—the opposite of what
happened here, see Article (noting that “[a] spokesman for [Plaintiff] did not respond to requests
10 for comment”); see generally Pl.’s Opp’n (not disputing the point). Finally, Plaintiff references
his allegation that Defendants knew he was in Tulsa, Oklahoma, for a campaign event on February
14, 2020, the day after the classified briefing. He maintains this fact shows that he could not have
possibly advised the President about the briefing. Pl.’s Opp’n at 18 (citing Compl. ¶ 21(e)).
Although his allegation includes a specific fact that might bear on Defendants’ subjective
knowledge, it does not conflict with what the Post reported in the Article. As the Post notes, “[t]he
Article does not report when President Trump learned of the briefing from [Plaintiff] (or how) . . .
[Plaintiff] could have conveyed the information to President Trump on a different day[.]” Def.’s
Mem. at 15. 3 The allegation, therefore, does not support Plaintiff’s claim that the Post knew that
anything it reported in the Article was false.
***
Because the Complaint fails to plead the threshold requirements for defamation by
implication and, in any case, fails to plausibly plead actual malice, Count I is dismissed.
B. Count II: Common Law Conspiracy
Count II alleges a common law conspiracy between Defendants and House Democrats “for
the express purpose of defaming and injuring Plaintiff.” Compl. ¶¶ 24–29; see Pl.’s Opp’n
at 21–22. But “[b]ecause [Plaintiff’s underlying] defamation claim fails, so do[es] [his] other tort
claim[] based upon the same allegedly defamatory speech.” Farah v. Esquire Mag., 736 F.3d 528,
540 (D.C. Cir. 2013). Thus, Count II must also be dismissed. Cf. Lokhova v. Halper, 441 F. Supp.
3d 238, 266 (E.D. Va. 2020) (“[W]here there is no actionable claim for the underlying alleged
wrong, plaintiff cannot maintain a claim for civil conspiracy.” (internal quotation marks omitted)).
3 Even accepting as true Plaintiff’s assertion that he did not “meet or speak” to the President either on February 13 or 14, 2020, Compl. ¶ 4, additional days passed before February 19, 2020, when the President reportedly announced his decision to replace Maguire as intelligence chief, see Article. Plaintiff noticeably does not allege he did not “meet or speak” with the President between February 15 and 19, 2020.
11 C. Plaintiff’s Motion for Leave to File an Amended Complaint
Having explained the deficiencies in Plaintiff’s original Complaint, the court now
addresses his Motion for Leave to File an Amended Complaint. As Plaintiff rightly notes, “it is
an abuse of discretion to deny leave to amend unless there is sufficient reason, such as . . . futility
of amendment.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (internal quotation
marks omitted). “[A]rguing the futility of an amendment is akin to contending that the new
complaint would not survive a motion to dismiss.” Bess v. District of Columbia, Civ. Action
No. 19-3152 (JEB), 2020 WL 4530581, at *3 (D.D.C. Aug. 6, 2020).
Here, the court concludes that Plaintiff’s amendments would be futile because they fail to
cure the defects explained above. For one, the Amended Complaint contains no further allegations
that would satisfy the pleading requirements for defamation by implication. Compare
Compl. ¶¶ 4–5, with Am. Compl. ¶¶ 2–3. Moreover, the Amended Complaint does nothing to
address Plaintiff’s inability to plead actual malice. Instead, it repeats the same litany of conclusory
or otherwise insufficient allegations. See Am. Compl. ¶ 16. Plaintiff invites the court to reconsider
the actual malice standard established in New York Times v. Sullivan, Pl.’s Reply in Supp. of Mot.
for Leave to File Am. Compl., ECF No. 32, at 6–11, but for obvious reasons, the court cannot do
so, see Agostini v. Felton, 521 U.S. 203, 237 (1997) (indicating that lower courts should “leav[e]
to th[e] [Supreme Court] the prerogative of overruling its own decisions”).
Lastly, Plaintiff’s inclusion of a third count—false light invasion of privacy—is unavailing.
See Am. Compl. ¶¶ 24–28. “[A] plaintiff may not use related causes of action to avoid the
constitutional requisites of a defamation claim. The First Amendment considerations that apply
to defamation therefore apply also to [a plaintiff’s] count[] for false light.” Farah, 736 F.3d at 540
(citation omitted). Because Plaintiff cannot overcome those First Amendment considerations in
12 the defamation context, the same must be true for his false light claim, which is based on the same
underlying allegations. See Am. Compl. ¶¶ 24–28. Thus, because Plaintiff’s false light claim
would not survive a Rule 12(b)(6) motion, its inclusion does not alter the futility of the Amended
Complaint. See Bess, 2020 WL 4530581, at *3.
V. CONCLUSION
For the reasons stated, the Post’s Motion to Dismiss, ECF No. 8, is granted, and Plaintiff’s
Motion for Leave to File an Amended Complaint, ECF No. 30, is denied. A separate final order
accompanies this Memorandum Opinion. 4
Dated: December 24, 2020 Amit P. Mehta United States District Court Judge
4 As Plaintiff has made no effort, to the court’s knowledge, to serve Defendant Harris, the court dismisses this action in its entirety.