U.S. Court of Appeals for the 4^th Circuit 

Tort; defamation: Where a congressional advisor alleged that he was defamed by an article about efforts to dig up dirt on Joe and Hunter Biden, his suit was dismissed. Most of the statements in the article weren’t about him, he failed to show that those statements about him were false and defamatory, the statements were privileged and there was no showing of actual malice. Harvey v. Cable News Network Inc., Nos. 21-1527, 21-1535 (filed Sept. 2, 2022).

Tort

Defamation

BOTTOM LINE: Where a congressional advisor alleged that he was defamed by an article about efforts to dig up dirt on Joe and Hunter Biden, his suit was dismissed. Most of the statements in the article weren’t about him, he failed to show that those statements about him were false and defamatory, the statements were privileged and there was no showing of actual malice.

CASE: Harvey v. Cable News Network Inc., Nos. 21-1527, 21-1535 (filed Sept. 2, 2022) (Judges GREGORY, Thacker, Harris).

FACTS: In 2017, Derek Harvey became a senior advisor to congressman Devin Nunes. On Nov. 22, 2019, CNN published an online article entitled “Exclusive: Guiliani associate willing to tell Congress Nunes met with ex-Ukrainian to get dirt on Biden.” Harvey contends that article defamed him and cast him in a false light.

The district court dismissed his amended complaint for failure to state a claim. Harvey appeals from that dismissal. He and his counsel also appeal the district court’s award of fees, expenses and costs pursuant to 28 U.S.C. § 1927 and the court’s inherent authority based on a finding that the amended complaint “unreasonably multiplied the proceedings.”

LAW: Plaintiff must allege facts showing that a particular statement is about him, false and defamatory. But most of the statements Harvey complains of are about Devin Nunes. Of those that are about Harvey, they say that he was part of the entourage that accompanied Nunes to Vienna, and that Nunes directed him to meet and that he did meet, with Lev Parnas to discuss reaching out to Ukrainian prosecutors who might have information on the Bidens. But Harvey has again failed to establish that these statements are either materially false or defamatory.

In his amended complaint, Harvey attempted to address the court’s concern that he had not established that the statements were false, but without alleging any new facts, these amendments did nothing to address the conclusory nature of his assertion that the statements are untrue. Adding the words “materially false” to the statements does not make them so, and any “[m]inor inaccuracies do not amount to falsity so long as the substance or gist is justified.”

Harvey also made additions to his initial complaint to address the district court’s conclusion that the statements were not defamatory. However the allegedly defamatory statements about Harvey do not allege that he personally engaged in any misconduct or that he was otherwise incapable or lacked the qualifications to perform his duties; they only describe what he did as a subordinate acting on Nunes’ orders. Allegations that Nunes was seeking to hide the purpose of the trip did not defame Harvey. Regardless of the reason for the timing of the trip, it complied with congressional disclosure requirements.

The district court also concluded that the amended complaint should be dismissed because Harvey failed to sufficiently plead that any of CNN’s statements about him were made with actual malice. Harvey, however, maintains that he was a private individual, not a public figure, and in any event, he plausibly alleged that CNN published the statements with actual malice. The court finds none of Harvey’s arguments availing.

Harvey “held positions involving substantial direction and control of governmental affairs” and exercised “significant discretion” on Nunes’ behalf. And while Harvey alleges as proof of actual malice that CNN fabricated statements falsely attributed to him, relied on a single, unreliable source and failed to interview an important, easily accessible witness, these conclusory allegations fall short.

The district court held, and this court agrees, that Harvey failed to state a claim because CNN’s statements were privileged under the fair report privilege. Harvey nevertheless maintains that the statements cannot be subject to any fair report privilege because CNN did not report on any legal or official proceeding, Parnas never testified before the House Intelligence Committee and the fact that he claimed he was willing to testify at some point before Congress did not trigger any privilege. These arguments are simply contrary to settled Maryland law.

Harvey’s amended complaint also includes a claim for false light invasion of privacy. But “[a] claim for placing [a] plaintiff in false light . . . may not stand unless the claim also meets the standards of defamation.” Because Harvey has failed to state a claim for defamation, his false light claim fails as well.

Inherent in both the court’s authority to impose sanctions and in § 1927 is an element of bad faith. Here, the district court erred in sanctioning Harvey and his counsel because the conduct the court cited as grounds for the award does not demonstrate bad faith, and there is no other evidence in the record that the appellants undertook the effort to amend the complaint in bad faith.

Affirmed in part, vacated in part.