Appeal from the United States District Court for the District of Columbia (No. 02cv00437)
Before: Edwards, Randolph, and Tatel, Circuit Judges.
The opinion of the court was delivered by: Tatel, Circuit Judge
Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.
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 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.
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, 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 ...