Patricia Smith and Charles Woos v. Hillary Rodham Clinton and United States of America

Sean Smith and Tyrone Woods tragically

perished in the September 11, 2012, attacks on United States

facilities in Benghazi, Libya. Their parents, Patricia Smith and

Charles Woods, sued former Secretary of State Hillary

Rodham Clinton for common-law torts based on her use of a

private email server in conducting State Department affairs

while Secretary of State and public statements about the cause

of the attacks she made in her personal capacity while a

presidential candidate. They appeal the substitution of the

United States as the defendant on the claims involving the

email server and the dismissal of their complaint for lack of

subject matter jurisdiction and failure to state a claim. We

affirm.

I.

The genesis of this case is in Clinton’s private meeting

with Smith and Woods on September 14, 2012, in the wake of

their sons’ deaths. According to the complaint, Secretary

Clinton “lied to [Smith and Woods] and told [them] that the

Benghazi Attack was the result of [an] anti-Muslim YouTube

video that had been posted online and that the creator of the

video would be arrested.” Compl. ¶ 19. An entry in Woods’s

daily journal for September 14, 2012, records that “[Woods]

gave Hillary a hug and shook her hand, and she said [they] are

going to have the film maker arrested who was responsible for

the death of [his] son.” Id. ¶ 20.

Four years after this meeting, Smith and Woods sued

Clinton for wrongful death, negligence, defamation, false light,

intentional infliction of emotional distress, and negligent

infliction of emotional distress. Their tort claims stem in part

from Clinton’s use of a private email server while she was

Secretary of State “to conduct official government business,

3

including but not limited to,” Smith and Woods allege,

“sending and receiving thousands of e-mails regarding matters

of national security.” Id. ¶ 9. This information allegedly

included the “location of . . . government operations in

Benghazi, Libya” and “was intercepted by foreign powers.” Id.

¶ 15. The complaint further alleges that Islamic terrorists

acquired this information and “used it to plan, orchestrate, and

carry out the horrific and devastating attack on the American

diplomatic compound in Benghazi, . . . resulting in the death of

four Americans, including Sean Smith and Tyrone Woods.” Id.

¶ 16. The remaining claims arise from four statements Clinton

made in her personal capacity during the 2016 presidential

campaign, in response to Smith and Woods’s accusations that

she lied to them during the September 14 meeting about the

cause of the attack. They alleged that these statements defamed

them by “either directly calling them liars, or [] strongly

implying that they are liars.” Id. ¶ 23. The complaint alleged:

First, on December 6, 2015, ABC News’ George

Stephanopoulos asked Clinton about the attack in Benghazi:

“‘Did you tell them it was about the film?’” Id. ¶ 23(a) (citation

omitted). Clinton responded:

No. You know, look I understand the continuing grief

at the loss that parents experienced with the loss of

these four brave Americans. And I did testify, as you

know, for 11 hours. And I answered all of these

questions. Now, I can’t — I can’t help it the people

think there has to be something else there. I said very

clearly there had been a terrorist group, uh, that had

taken responsibility on Facebook, um, between the

time that, uh, I – you know, when I talked to my

daughter, that was the latest information; we were, uh,

giving it credibility. And then we learned the next day

it wasn’t true. In fact, they retracted it. This was a

4

fast-moving series of events in the fog of war and I

think most Americans understand that.

Id. (internal quotation marks and citation omitted).

Second, on December 30, 2015, in an editorial board

meeting, Conway Daily Sun columnist Tom McLaughlin

referred to Clinton’s answer to Stephanopoulos and asked

“‘Somebody is lying. Who is it?’” Id. ¶ 23(b) (citation

omitted). Clinton responded: “‘Not me, that’s all I can tell

you.’” Id. (citation omitted).

Third, during the Democratic Presidential Primary Debate

on March 9, 2016, “[w]hen asked about [] Smith’s allegation

that [] Clinton lied to her by blaming the Benghazi Attack on

the YouTube video,” Clinton responded, “‘I feel a great deal of

sympathy for the families of the four brave Americans that we

lost at Benghazi, and I certainly can’t even imagine the grief

that she has for losing her son, but she’s wrong. She’s

absolutely wrong.’” Id. ¶ 23(c) (citation omitted).

Fourth, in a July 31, 2016, interview with Chris Wallace

of Fox News Sunday, Clinton said,

Chris, my heart goes out to both of them. Losing a

child under any circumstances, especially in this case,

two State Department employees, extraordinary men

both of them, two CIA contractors gave their lives

protecting our country, our values. I understand the

grief and the incredible sense of loss that can motivate

that. As other members of families who lost loved

ones have said, that’s not what they heard[.] I don’t

hold any ill feeling for someone who in that moment

may not fully recall everything that was or wasn’t

said.

5

Id. ¶ 23(d) (internal quotation marks and citation omitted).

The district court granted the United States’ motion to

substitute itself for Clinton under the Federal Employees

Liability Reform and Tort Compensation Act (“Westfall Act”),

28 U.S.C. § 2679, for those claims involving Clinton’s use of

a private email server while Secretary of State. The district

court then dismissed without prejudice the wrongful death,

negligence, and intentional infliction of emotional distress

counts against Clinton in her official capacity for lack of

subject matter jurisdiction due to Smith and Woods’s failure to

exhaust their administrative remedy under the Federal Tort

Claims Act, 28 U.S.C. § 2675(a). The district court also

dismissed without prejudice the defamation, false light, and

intentional infliction of emotional distress counts against

Clinton in her personal capacity for failure to state plausible

claims for relief. Smith and Woods voluntarily withdrew their

claim for negligent infliction of emotional distress.

II.

Smith and Woods appeal the Westfall Act substitution of

the United States for Clinton and the dismissal of the remaining

tort claims. Our review is de novo. Council on Am. Islamic

Rel. v. Ballenger, 444 F.3d 659, 664 (D.C. Cir. 2006) (CAIR);

Weyrich v. New Republic, Inc., 235 F.3d 617, 623 (D.C. Cir.

2001).

A.

The Justice Department certified that, “with respect to the

incidents alleged in the Complaint, . . . Clinton was acting

within the scope of her office as the Secretary of State of the

United States at the time of the alleged conduct that purportedly

occurred while she was in office, i.e., from January 21, 2009 to

6

February 1, 2013.” Westfall Certification at 2, No. 16-cv-1606,

ECF. No. 23-1 (Oct. 21, 2016). That certification is prima facie

evidence that any harm allegedly caused by Clinton’s email

communications was within the scope of her employment and

thus that the United States was properly substituted. CAIR, 444

F.3d at 662. Smith and Woods bore the burden of alleging

“specific facts” that could overcome that presumption. Id.

(internal quotation marks and citation omitted); see also

Kimbro v. Velten, 30 F.3d 1501, 1509 (D.C. Cir. 1994).

Smith and Woods contend that conducting official

business on a private server could not have been within the

scope of Clinton’s employment as the Secretary of State

because the Department of State’s “general policy [is] that

normal day-to-day operations be conducted on an authorized

[Automated Information System].” Appellant Br. 24 (quoting

Josh Gerstein, Clinton Private Email Violated “Clear-Cut”

State Dept. Rules, POLITICO, Mar. 5, 2015) (second alteration

in original). These allegations, even if true, fall well short of

rebutting the United States’ Westfall Certification.

Extensive precedent makes clear that alleging a federal

employee violated policy or even laws in the course of her

employment — including specific allegations of defamation or

of potentially criminal activities — does not take that conduct

outside the scope of employment. “The proper inquiry . . .

‘focuses on the underlying dispute or controversy, not on the

nature of the tort, and is broad enough to embrace any

intentional tort arising out of a dispute that was originally

undertaken on the employer’s behalf.’” CAIR, 444 F.3d at 664

(D.C. Cir. 2006) (quoting Weinberg v. Johnson, 518 A.2d 985,

992 (D.C. 1986)). What matters is whether the underlying

activity itself was part of the employee’s duties. For instance,

in CAIR, 444 F.3d at 664–665, the court held that because

responding to media inquiries was one of the congressman’s

7

authorized duties, such responses fell within the scope of

employment even when defamatory. See also, e.g., Wuterich

v. Murtha, 562 F.3d 375, 384–85 (D.C. Cir. 2009)

(congressman’s media interviews about military incident, even

if defamatory, were within scope of employment); Rasul v.

Myers, 512 F.3d 644, 656–659 (D.C. Cir. 2008), vacated and

remanded on other grounds, 555 U.S. 1083 (2008), reinstated

in relevant part, 563 F.3d 527, 528–529 (D.C. Cir. 2009)

(senior officials alleged to have implemented and supervised

systemic torture of Guantanamo Bay detainees acted within the

scope of their employment because their responsibilities

included detaining and interrogating suspected enemy

combatants); Wilson v. Libby, 535 F.3d 697, 712 (D.C. Cir.

2008) (Executive officials acted within their scope of

employment when disclosing a covert operative’s identity for

retributive reasons while speaking to the press); id. at 712 n.2

(temporal and spatial scope of employment for important

Executive officials not limited to regular working hours or

government property).

Therefore, the parts of Count V — intentional infliction of

emotional distress — dealing with Clinton’s activities as

Secretary of State were properly dismissed. The complaint

challenges only Clinton’s use of “her private e-mail server to

send and receive confidential and classified government

information, often concerning matters of national security” and

“other government operations in Benghazi, Libya that the

deceased were a part of.” Compl. ¶ 50. Regardless of whether

or not these activities were conducted properly or lawfully,

those types of communications fall within the heartland of her

duties as Secretary of State. See Schneider v. Kissinger, 412

F.3d 190, 194–95 (D.C. Cir. 2005) (foreign policy decisions

committed to political branches). The same is true for Count I,

wrongful death, which is based upon Clinton’s use of “a private

email server to send and receive secret, confidential and

8

classified government information,” Compl. ¶ 26, and Count

IV, negligence, premised on Clinton’s “handling of

confidential and classified government information via her

personal email server,” id. ¶ 44.

Because the district court properly granted the United

States’ motion to substitute itself for Clinton on Counts I, IV,

V, and VI (now dismissed), those claims were then governed

by the Federal Tort Claims Act, which requires exhaustion of

administrative remedies before a lawsuit may be brought. 28

U.S.C. § 2675(a). Smith and Woods conceded that they failed

to exhaust their administrative remedies. Pls’ Opp’n to U.S.

Mots. at 7, No. 16-cv-1606, ECF No. 30 (Nov. 18, 2016). The

district court thus lacked subject matter jurisdiction over the

Westfall Act covered claims. McNeil v. United States, 508

U.S. 106, 113 (1993).

B.

Even assuming the truth of the alleged falsity of Clinton’s

statements, the district court did not err in dismissing the

remaining tort claims for defamation, false light, and

intentional infliction of emotional distress (in relevant part) for

failure to state a claim. Fed. R. Civ. P. 12(b)(6).

1. The district court correctly found that the defamation

claim, Count II, does not state a plausible claim for relief.

Smith v. Clinton, 253 F. Supp. 3d 222, 240–43 (D.D.C. 2017).

A plaintiff claiming defamation must allege:

(1) the defendant made a false and defamatory

statement concerning the plaintiff; (2) the defendant

published the statement without privilege to a third

party; (3) the defendant’s fault in publishing the

statement amounted to at least negligence; and (4)

either the statement was actionable as a matter of law

9

irrespective of special harm, or its publication caused

the plaintiff special harm.

Hourani v. Mirtchev, 796 F.3d 1, 16 (D.C. Cir. 2015) (quoting

Oparaugo v. Watts, 884 A.2d 63, 76 (D.C. 2005)) (internal

quotation marks omitted).

Smith and Woods pled neither that Clinton’s statements

are actionable as a matter of law nor special damages. Federal

Rule of Civil Procedure 9(g) requires that special damages “be

specifically stated.” The complaint merely contains a

boilerplate recitation, unaccompanied by any factual detail,

that “[a]s a direct and proximate result of Defendant Clinton’s

statements, [Smith and Woods] have suffered pecuniary

damage, as well as injury to reputation, impairment to standing

in their community, personal humiliation, pain and suffering,

and emotional distress.” Compl. ¶ 37. The affidavits of Smith

and Woods allege the same harm, almost verbatim. See Woods

Aff. ¶ 7; Smith Aff. ¶ 6.

They also did not plead that the challenged statements are

defamatory as a matter law, a status reserved for statements

about extreme subjects, such as criminal behavior, “serious

sexual misconduct,” “a loathsome disease,” or a person’s

suitability for his chosen profession, Carey v. Piphus, 435 U.S.

247, 262 n.18 (1978); see also Hall v. District of Columbia,

867 F.3d 138, 149 (D.C. Cir. 2017). Clinton’s statements are

not of that character. In Weyrich, this court held that that an

article claiming the plaintiff “‘began to suffer bouts of

pessimism and paranoia,’” though “unflattering,” was not

actionable. 235 F.3d at 624–25 (citation omitted). Similarly,

even if Clinton’s statements could be understood as casting

Smith and Woods as liars, this unpleasant portrayal does not

amount to defamation per se. Smith and Woods do not

challenge these aspects of the district court’s decision on

10

appeal, nor did they seek in district court to amend their

complaint to provide the required specificity.

Even if Smith and Woods had adequately pled this

element, their claim fails because Clinton’s statements are not

“‘reasonably capable of any defamatory meaning,’” which is a

question of law. Id. at 627 (quoting White v. Fraternal Order

of Police, 909 F.2d 512, 518 (D.C. Cir. 1990)). “A statement

is defamatory if it tends to injure plaintiff in his trade,

profession or community standing, or lower him in the

estimation of the community.” Id. at 627 (internal quotation

marks and citation omitted). “An allegedly defamatory remark

must be more than unpleasant or offensive; the language must

make the plaintiff appear odious, infamous, or ridiculous.” Id.

(internal quotation marks and citation omitted).

Clinton has made no such remarks here. In the ABC News

interview, she contradicted Smith and Woods’s version of

events but did not state or imply they were lying, instead noting

she “underst[ood] [their] continuing grief.” Compl. ¶ 23(a).

And in the Conway Daily Sun interview, it was the reporter, not

Clinton, who posits someone is lying; all Clinton did was deny

that she was lying. Id. ¶ 23(b). In the two subsequent

interviews, Clinton bolstered her own version of events by

noting that others present at the meeting supported her account

and suggesting reasons why her recollection differed from that

of Smith and Woods. Id. ¶ 23(c) and (d). Clinton did state that

Ms. Smith was “absolutely wrong,” id. ¶ 23(c), but disagreeing

with another person’s recollection does not necessarily imply

that the other person is lying. The D.C. Court of Appeals has

refrained from finding disagreement to constitute defamation

even where the disagreement was combative, as in Levant v.

Whitley, 755 A.2d 1036, 1040 (D.C. 2000), where the plaintiff

was accused of “bringing shame” to the employer. The court

reasoned that “[a]t most” the parties “had an intense

11

disagreement,” which did “not rise to the level of defamation.”

Id. at 1046. Here, the facts of disagreement are less “intense”

in the sense that Clinton does not accuse Smith and Woods of

lying, and instead acknowledges their grief while respectfully

disagreeing with their recollection. Because none of her

responses stated or could be reasonably understood as implying

that either Smith or Woods was lying, the claim fails.

2. The false light claim, Count III, also fails. “Because

[defamation and false light] are so similar,” a plaintiff may

plead them as alternatives and a reviewing court “must also

satisfy itself that the statement does not arguably place [the

plaintiff] in a ‘highly offensive’ false light” in addition to

finding the statements are not capable of defamatory meaning.

Weyrich, 235 F.3d at 628. Because Clinton merely disagreed

with Smith and Woods’s recollection of events and couched

this disagreement in sympathy, no reasonable person could

conclude that Clinton’s statements put Smith and Woods in a

“highly offensive” false light.

3. With respect to the portion of Count V that survived the

Westfall Act jurisdictional dismissal, the complaint is fatally

deficient as to, at minimum, the first and third elements of an

intentional infliction of emotional distress claim. Under

District of Columbia law, “a plaintiff must show (1) extreme

and outrageous conduct on the part of the defendant which

(2) intentionally or recklessly (3) causes the plaintiff severe

emotional distress.” Armstrong v. Thompson, 80 A.3d 177, 189

(D.C. 2013) (internal quotation marks and citation omitted).

As to the first element, “[t]he conduct must be ‘so outrageous

in character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious,

and utterly intolerable in a civilized community.’” Id. (quoting

Drejza v. Vaccaro, 650 A.2d 1308, 1312 n.10 (D.C. 1994)).

None of Clinton’s denials of allegations that she lied or her

12

remarks that Smith and Woods are incorrect comes close to

meeting that strict standard. In fact, in Weaver v. Grafio, 595

A.2d 983, 985, 991 (D.C. 1991), the D.C. Court of Appeals

held that the defendant’s act of mailing his employers a copy

of a letter to an ethics committee accusing them of a felony was

not outrageous conduct. Here, Clinton did not explicitly accuse

Smith and Woods of lying, let alone of committing a crime.

Likewise, as to the third prong, the complaint is silent as

to how Smith’s or Woods’s emotional distress manifested

itself. The complaint alleges that they suffered “severe

emotional distress stemming from the death of [their] sons.”

Compl. ¶ 52 (emphasis added). But nothing in the factual

allegations plausibly suggests that Clinton’s statements, rather

than the tragic deaths, triggered “emotional distress of so acute

a nature that harmful physical consequences might not be

unlikely to result.” Ortberg v. Goldman Sachs Grp., 64 A.3d

158, 164 (D.C. 2013) (internal quotation marks and citation

omitted).

We affirm the order substituting the United States as a

defendant and dismissing the claims for lack of subject matter

jurisdiction or failure to state a claim.

So ordered.