Tuesday, March 27, 2018

But Her Server

The United States Court of Appeals for the District of Columbia Circuit affirmed the dismissal of Benghazi- inspired litigation

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.

The court found that the various proposed causes of action either failed to state a claim or lacked subject matter jurisdiction

“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 appellants were represented by Larry Klayman. Secretary Clinton was represented by David Kendall. Jessie K. Liu represented the United States.

The per curiam opinion was signed by Circuit Judges Rogers, Millett and Pilliard. (Mike Frisch)


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