Derek Harvey v. CNN

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1527
DEREK J. HARVEY,
Plaintiff – Appellant,
v.
CABLE NEWS NETWORK, INCORPORATED,
Defendant – Appellee,
and
LEV PARNAS; JOSEPH A. BONDY,
Defendants.
No. 21-1535
DEREK J. HARVEY,
Plaintiff,
v.
CABLE NEWS NETWORK, INCORPORATED,
Defendant – Appellee,
and
LEV PARNAS; JOSEPH A. BONDY,
Defendants,
v.
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JOSEPH LEE MEADOWS,
Movant – Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
Richard D. Bennett, Senior District Judge. (1:20-cv-03068-RDB)
Argued: March 8, 2022 Decided: September 2, 2022
Before GREGORY, Chief Judge, THACKER, and HARRIS, Circuit Judges.
Affirmed in part, vacated in part by published opinion. Chief Judge Gregory wrote the
opinion, in which Judge Thacker and Judge Harris joined.
ARGUED: Steven Scott Biss, LAW OFFICE OF STEVEN S. BISS, Charlottesville,
Virginia; Gregory M. Lipper, CLINTON & PEED, Washington, D.C., for Appellants.
Thomas G. Hentoff, WILLIAMS & CONNOLLY LLP, Washington, D.C., for Appellee.
ON BRIEF: Stephen J. Fuzesi, Nicholas G. Gamse, Anna J. Hrom, WILLIAMS &
CONNOLLY LLP, Washington, D.C., for Appellee.
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GREGORY, Chief Judge:
Appellant Derek Harvey appeals the district court’s dismissal of his amended
complaint filed against Cable News Network (“CNN”) alleging defamation and false light
invasion of privacy. Harvey challenges the district court’s finding that his amended
complaint failed to cure deficiencies identified in his initial pleading. He and his counsel
also appeal the 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.” J.A. 320. 1
For the reasons that follow, we affirm the district court’s finding that Harvey’s
amended complaint failed to state a claim of either defamation or false light invasion of
privacy. But we vacate the district court’s award of sanctions, finding that the court abused
its discretion in awarding them where the record does not support a finding that Harvey or
his counsel filed the amended complaint in bad faith.
I.
United States Army Colonel Derek Harvey retired in 2006 following a 26-year
military career as an intelligence officer and Middle East Foreign Area Officer. He was
appointed to the National Security Council in 2017, and later that year became a Senior
Advisor to United States Congressman Devin Nunes of California. Harvey alleges that his
1
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
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reputation for “integrity, honesty, ethics, judgment and performance” was “valuable” and
“necessary in his practice and profession.” J.A. 107.
In November 2019, Rep. Nunes was the Chairman of the House Select Permanent
Committee on Intelligence. He was considered the “top Republican on the House
Intelligence Committee,” “one of Trump’s key allies in Congress,” and “a staunch
defender” of the former President during his first impeachment trial, where it was alleged
that Trump, “[u]sing the powers of his high office . . . solicited the interference of a foreign
government, Ukraine, in the 2020 United States Presidential election.” H.R. Res. 755,
116th Cong., art. I (2019). Early in the impeachment investigation, various news outlets
reported that a focus of the investigation was the effort of Trump’s personal attorney,
Rudy Giuliani, to press the Ukrainian government to investigate former Vice President and
2020 presidential candidate Joseph Biden, and that Giuliani was working with a Ukrainian-
born American businessman, Lev Parnas, among others, in this effort. 2 Parnas had recently
2
For example, The Washington Post reported on October 10, 2019, that Parnas “had
been helping Giuliani investigate . . . Biden” and that “[s]ince late 2018, [Parnas] ha[d]
been assisting Giuliani’s push to get Ukrainian officials to investigate Biden and his son
. . . .” See Devlin Barrett, John Wagner & Rosalind S. Helderman, Two Business
Associates of Trump’s Personal Lawyer Giuliani Have Been Arrested and are in Custody,
Wash. Post (Oct. 10, 2019, 7:00 PM), https://www.washingtonpost.com/politics/two-
business-associates-of-trumps-personal-lawyer-giuliani-have-been-arrested-and-are-in-
custody/2019/10/10/9f9c101a-eb63-11e9-9306-47cb0324fd44_story.html (last visited
August 19, 2022). And on November 20, 2019, The Daily Beast published an article stating
that “[Parnas had] helped arrange meetings and calls in Europe for [Rep. Devin Nunes] in
2018.” Betsy Swan, Lev Parnas Helped Rep. Devin Nunes’ Investigations, Daily Beast
(Nov. 20, 2019, 7:58 PM), https://www.thedailybeast.com/lev-parnas-helped-rep-devin-
nunes-investigations (last visited August 19, 2022). The Daily Beast article was introduced
during the impeachment hearing the day after it was published. See H. Permanent Select
Comm. on Intel. Impeachment Inquiry, 116th Cong. 146:9-21 (2019).
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been indicted in New York for conspiring to disguise Ukrainian campaign donations to
American federal and state political candidates in violation of federal campaign finance
laws. Shortly thereafter, Parnas received a congressional subpoena as part of the
impeachment investigation.
On November 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. J.A. 185–88. The author, CNN Senior Reporter Vicky Ward, reported that Parnas’
criminal defense attorney, Joseph Bondy, told CNN that Parnas was “willing to comply
with a congressional subpoena for documents and testimony as part of the impeachment
inquiry in a manner that would allow him to protect his Fifth Amendment rights against
self-incrimination.” J.A. 186. Specifically, CNN reported that Parnas “was willing to tell
Congress about meetings [Rep. Nunes] had in Vienna last year” with former Ukrainian
Prosecutor General Viktor Shokin to “dig[] up dirt on Joe Biden.” J.A. 185. Bondy said
that Parnas learned of the meetings, held in December 2018, directly from Shokin.
According to the CNN article, “Bondy told CNN that his client and Nunes began
communicating around the time of the Vienna trip,” and that “Parnas says he worked to put
Nunes in touch with the Ukrainian who could help Nunes dig up dirt on Biden and Democrats
in Ukraine.” J.A. 185. Bondy also told CNN that “Nunes planned the trip to Vienna after
Republicans lost control of the House of Representatives in the November 6, 2018 mid-term
elections.” J.A. 187. “‘Mr. Parnas learned through Nunes’ investigator, Derek Harvey, that
the Congressman had sequenced this trip to occur after the mid-term elections yet before
Congress’ return to session so that Nunes would not have to disclose the trip details to his
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Democrat colleagues in Congress, said Bondy.’” Id. Ward reported that congressional travel
records showed that “Nunes and three aides,” Harvey among them, “traveled to Europe from
November 30 to December 3, 2018.” J.A. 186. But the article acknowledged that the travel
records did “not specify that Nunes and his staff went to Vienna or Austria, and [that] Nunes
was not required to disclose the exact details of the trip.” Id.“Bondy said according to his client, following a brief in-person meeting in late 2018,
Parnas and Nunes had at least two more phone conversations, and that Nunes instructed
Parnas to work with Harvey on the Ukraine matters. Parnas said that shortly after the
Vienna trip, he and Harvey met at the Trump International Hotel in Washington, where
they discussed claims about [Biden and his son Hunter] as well as allegations of Ukrainian
election interference, according to Bondy.” J.A. 187.
Bondy also told CNN that Parnas was willing to testify about “a series of regular
meetings he says he took part in at the Trump International Hotel . . . that concerned
Ukraine.” Id. Bondy said that “Parnas became part of what he described as a ‘team’ that
met several times a week” at the hotel that included, himself, Giuliani, and others and that
“Harvey would occasionally be present as well” as “Nunes’ proxy.” Id.CNN published its statements, including express references to Harvey, across its
various digital, cable, and social media platforms in Maryland, where Harvey resides, and
elsewhere. They were in turn republished by other news and social media outlets. Ward later
appeared on a broadcast of CNN’s Cuomo Prime Time, where she and anchor Chris Cuomo
discussed the story, and where Cuomo called on Nunes to respond to the allegations.
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Both Nunes and Harvey repeatedly declined to comment for the CNN article prior to
publication, and “CNN was unable to reach Shokin for comment.” J.A. 186. When Nunes
was quoted elsewhere denying the story, Ward updated her article to reflect his denial.
In January 2020, Democrats on the House Intelligence Committee released and
posted on a House website documents Parnas produced in response to the congressional
subpoena. They included twenty pages of instant messages between Parnas and Harvey
showing that the two men coordinated interviews with current and former Ukrainian
prosecutors, including Shokin, as well as meetings at the Trump International Hotel.
Following the Intelligence Committee’s release of the subpoenaed documents, CNN
tweeted about and provided a link to the documents and published another online report.
Jeremy Herb & Manu Raju, New impeachment documents show more texts about possible
surveillance of former U.S. ambassador to Ukraine, CNN (Jan. 18, 2020),
https://www.cnn.com/2020/01/17/politics/lev-parnas-documents-january-17/index.html
(last visited August 11, 2022). This report described “communications between Parnas
and Nunes aide Derek Harvey, in which they arrange interviews with Ukrainian officials
and apparent meetings at the Trump International Hotel in Washington, D.C.” that “draw
Nunes . . . even further into the efforts undertaken by Giuliani and his associates to . . . dig
up dirt on the President’s political rivals.” J.A. 86, 87.
On October 21, 2020, Harvey filed a complaint against CNN, Parnas, and Bondy
alleging defamation and false light invasion of privacy, seeking compensatory and punitive
damages and an injunction to prevent further publication of the allegedly false and
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defamatory statements. 3 J.A. 43–52. As to CNN, the complaint alleged that CNN’s
statements, including those made and published in the November 2019 online report, on
Cuomo Prime Time, and in the January 2020 tweet and online report defamed Harvey by
falsely accusing him of “participating in an effort to aid and abet . . . criminal, unethical,
and dishonest conduct,” “exposed [him] to public scorn, ridicule and contempt,” and
“imputed to him deception, lack of integrity, and ethical improprieties that severely
prejudiced [him] in his employment” because they suggested his unfitness to perform the
duties of his position as Nunes’ advisor and investigator. J.A. 15.
In the complaint, Harvey denied that he made a trip to Vienna. He alleged instead
that he and Nunes were part of a delegation that traveled to Libya and Malta to discuss
security and intelligence issues, and that neither he nor Nunes met with any Ukrainian
officials. He further denied that Nunes deceived his congressional colleagues by timing
the trip to avoid congressional disclosure requirements, or that he told Parnas that Nunes
met or communicated with Shokin as part of an investigation of Biden. Harvey
characterized Parnas as “a known liar, con man and hustler, an indicted criminal defendant,
who CNN knew had every reason to lie.” J.A. 30. Harvey also claimed that CNN knew
of Parnas’ character and status as a “fraudster” and a “radioactive wolf in sheep’s clothing,”
3
The district court later dismissed the complaint as to non-resident defendants Parnas
and Bondy without prejudice for lack of personal jurisdiction pursuant to Federal Rule of
Civil Procedure 12(b)(2), finding that the exercise of jurisdiction over them was (1) not
authorized under Maryland’s “long-arm” statute, and (2) would not “comport with the due
process requirements of the Fourteenth Amendment of the U.S. Constitution.” J.A. 60, 61.
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and thus had “serious doubts as to Parnas’ credibility, veracity and the truth and accuracy
of his statements” when it published them. J.A. 39–40.
CNN moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim. CNN argued that most of the challenged statements
were not about Harvey, and the ones that were about him were not defamatory or materially
false. CNN also claimed that the statements were privileged under Maryland law and that
Harvey failed to plausibly allege actual malice.
The district court granted the motion to dismiss. In its memorandum opinion, the
court gave several reasons for its finding that the complaint failed to state a claim. The court
found that of the eight alleged defamatory statements that were in fact published by CNN,
none of them supported a defamation claim. At the outset, the court reasoned that because
“the House Republicans stated in the executive summary of the official House impeachment
report [that] they believed there was ‘nothing wrong with asking serious questions’ about the
Bidens and their dealings in Ukraine,” “Harvey’s arguments that it was defamatory for CNN
to state or otherwise imply that he was assisting Nunes in investigation of a political rival are
simply without merit.” J.A. 76. The court then went on to explain “how the[] statements
fail to state a claim for defamation for numerous other reasons.” Id.First, the court analyzed each statement and concluded that Harvey failed to
plausibly claim how any of them were legally defamatory because they were not
“concerning Harvey,” defamatory, or materially false. J.A. 79. In one instance, the court
also found that a challenged statement did not expose Harvey to public scorn, and in others,
deemed the challenged statements mere statements of opinion.
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Next, the court found that Harvey independently failed to state a claim because he
had not met the additional requirement to show that the challenged statements were not
privileged under the Maryland fair report privilege, which protects those who “report legal
and official proceedings that are, in and of themselves defamatory, so long as the account
is ‘fair and substantially accurate.’” Piscatelli v. Smith, 35 A.3d 1140, 1149 (Md. 2012)
(quoting Chesapeake Publ’g Corp. v. Williams, 661 A.2d 1169, 1174 (Md. 1995)). The
court determined that the statements were privileged as (1) fair and accurate summaries of
a report on the official impeachment proceedings, see Nanji v. National Geographic Soc.,
403 F. Supp. 2d 425, 434 (D. Md. 2005) (dismissing defamation claim where statements
fairly and accurately reported on official proceedings), or (2) Bondy’s summaries of what
information his client Parnas was willing to provide in response to the House subpoena,
see Norman v. Borison, 17 A.3d 697, 708-11 (Md. 2011) (recognizing absolute privilege
for statements made by attorney of record extrinsic to judicial or quasi-judicial proceedings
under certain circumstances).
Finally, the court found Harvey had failed to state a claim on a third ground—he could
not plausibly allege actual malice as he is required to do as a public official. The court found
the conclusory allegations in Harvey’s complaint were insufficient to adequately plead
falsity or reckless disregard for the truth. See Mayfield v. Nat’l Ass’n for Stock Car Auto
Racing, Inc., 674 F.3d 369, 378 (4th Cir. 2012). The court found the complaint was “devoid
of any factual allegations with respect to the state of mind of reporters who published the
article and tweets,” and as to Ward, the only reporter identified by name, Harvey “fail[ed] to
assert facts plausibly alleging that she subjectively knew the information to be false,” or
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“subjectively believed it to be probably false.” J.A. 92; see also N.Y. Times v. Sullivan, 376
U.S. 254, 287 (1964) (“actual malice” standard is subjective). The court also noted that
although CNN’s reporting was based on information provided by recently-indicted Parnas,
reliance on “tainted or troubled sources does not alone establish actual malice,” see Talley v.
Time, Inc., 923 F.3d 878, 903 (10th Cir. 2019), and “including grounds for doubting a
source,” as CNN did here when it reported Parnas’ allegations as mere “claims” and about
his criminal charges, “may actually rebut a claim of malice.” See, e.g., McFarlane v. Esquire
Mag., 74 F.3d 1296, 1304 (D.C. Cir. 1996); J.A. 93.
The court then dismissed Harvey’s false light claim, which “must also meet the
standards for defamation,” for the same reasons. Ross v. Cecil Cty. Dep’t of Soc. Servs.,
878 F. Supp. 2d 606, 624 (D. Md. 2012) (citing Crowley v. Fox Broad Co., 851 F. Supp.
700, 704 (D. Md. 1994)).
But the district court did not dismiss Harvey’s complaint with prejudice; it instead
granted Harvey leave to amend within fifteen days “if Plaintiff possesse[d] facts to cure such
manifest deficiencies addressed in [its] Memorandum Opinion.” J.A. 99. In so doing, the
court warned that “[s]uch an Amended Complaint may still be subject to dismissal by reason
of repeated failure to cure deficiencies or futility of the amendment.” J.A. 99. Thus, while
the court’s initial dismissal was without prejudice, it ordered the clerk of court to dismiss the
case with prejudice if a satisfactory amended complaint was not filed by March 4, 2021.
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Harvey’s lead counsel, Steven Biss, with the assistance of local counsel,
Joseph Meadows, 4 electronically filed an amended complaint at “8:04 p.m.” on the day
that it was due, “after the clerk’s office of [the district court] had closed and just hours
before the deadline of midnight on March 4, 2021.” J.A. 310, 319. In the Amended
Complaint, Harvey dropped claims arising from statements not published by CNN, another
from the Cuomo Prime Time segment, as well as others related to the January 2020 online
report and tweets. He then merged certain statements that had previously been listed
separately, thereby reducing the number of alleged defamatory statements from twenty to
five. He added additional language supporting his claim of defamation, specifically
referring to the statements as “materially false” and alleging that CNN falsely accused him
of participating in and concealing a “shadow foreign policy,” J.A. 136, and of “publishing
derogatory statements concerning Nunes—[his] superior,” J.A. 138, and that these false
statements prejudiced him in his employment as a congressional advisor and “affect[ed]
his fitness to be an intelligence officer – conduct that could cost him his security clearance
and subject him to discipline.” J.A. 139. He also removed his request for injunctive relief.
On March 12, 2021, CNN moved to dismiss the Amended Complaint, again for
failure to state a claim, stating that it did not cure any of the deficiencies previously identified
by the district court. CNN argued that the Amended Complaint was substantively identical
4
Meadows represents to this Court that he has been a practicing attorney for 23
years and until this case had never worked with Biss or been disciplined or sanctioned by
any court or bar.
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to the original and its amendments consisted largely of conclusory additions and deletions of
text rather than the addition of new and material factual allegations.
CNN further maintained that “[b]y persisting in pressing materially the same
allegations that this Court already held do not state a claim,” the filing of the Amended
Complaint “unnecessarily prolongs and multiplies this proceeding.” J.A. 171. In a
footnote to the final sentence of its memorandum in support of dismissal, CNN asked the
court to award it “fees, costs, and expenses for the filing of this motion to dismiss the
Amended Complaint, pursuant to 28 U.S.C. § 1927 and this Court’s inherent authority,
because the filing [of] a near-identical Amended Complaint has multiplied the proceedings
unreasonably and vexatiously.” J.A. 183 n.12.
In response, Harvey stated—also in a footnote—that “Plaintiff and his Counsel need
not respond to an argument—as opposed to a motion—for sanctions,” relying on Federal
Rule of Civil Procedure 7(b)(1) and Local Rule 105.8(b). J.A. 283 n.14. He also argued
that he had amended his complaint in good faith to address the issues the district court
raised in its opinion, and that CNN had failed to show bad faith on the part of Harvey or
his counsel that would warrant an award of sanctions. Id.CNN’s reply on the sanctions issue was again in a footnote. It argued that although
it had not filed a motion, the sanctions request was “properly before the Court,” citing
authority that a separate motion was not necessarily required to request sanctions. CNN
also discussed warnings issued by other courts to Harvey’s lead counsel in cases involving
clients Meadows did not represent and in litigation in which Meadows played no role. See
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J.A. 300 (“[C]ourts in this Circuit already have warned [Biss] about the potential for
sanctions on multiple occasions . . . .”).
The district court granted the motion to dismiss the Amended Complaint with
prejudice on grounds consistent with CNN’s motion to dismiss. The court agreed that the
Amended Complaint was a mere “repetition of the original Complaint with no new material
factual allegations” that “failed to remedy the deficiencies of [Harvey’s] original
Complaint.” J.A. 308, 313. The court reaffirmed that dismissal was warranted on multiple
independent grounds, including that the statements did not have defamatory meaning, were
privileged, and the Amended Complaint did not plausibly allege either material falsity or
actual malice.
On the issue of sanctions, the court noted that Harvey was permitted to file an
Amended Complaint only if he possessed facts to cure the deficiencies addressed in the
court’s opinion and warned of its dismissal if he did not. The court recognized that “Harvey
made some additions to his Amended Complaint that were presumably meant to address
this Court’s concerns that none of the statements were actually defamatory,” but the
“additions d[id] not aid the Plaintiff’s case” and the cases he cited were distinguishable.
J.A. 315. The court held that “[t]he filing of such an Amended Complaint is the sort of bad
faith courts have repeatedly found to merit sanctions under 28 U.S.C. § 1927 and the
courts’ inherent authority to sanction,” J.A. 319, and that “Harvey and his counsel
unreasonably and vexatiously extended this matter in bad faith with the filing of a last-
minute Amended Complaint which did not in any way seek to cure the deficiencies
previously addressed by [the] Court.” J.A. 308. Invoking both its statutory and inherent
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authority, the court found it appropriate to sanction Harvey, Biss, and Meadows, ultimately
assessing fees, costs, and expenses totaling $21,489.76 against them.
Meadows retained his own counsel and moved for reconsideration of the sanctions
order, raising both due process and substantive issues and asserting that his role in
preparing the Amended Complaint was limited “by the time given him to review said
complaint, the scope of his agreed-upon role as local counsel, and his day-of-deadline
exercise of legal judgment in deciding to permit the amended complaint to be filed.” J.A.
361–62. The district court denied the motion on the ground that the amendments to the
complaint “were minimal, superficial, and did nothing to address the Court’s concerns,”
and therefore “unreasonably multiplied the proceedings.” J.A 382.
This appeal followed. Harvey and Biss appealed the dismissal of the Amended
Complaint and the award of sanctions, while Meadows filed a separate appeal of the court’s
sanctions award.
II.
This Court reviews de novo an order granting a motion to dismiss. Va. Citizens Def.
League v. Couric, 910 F.3d 780, 783 (4th Cir. 2018). In ruling on a motion to dismiss, the
court “accept[s] as true all well-pleaded facts in a complaint and construe[s] them in the
light most favorable to the plaintiff.” Driver Opportunity Partners I, L.P. v. First United
Corp., No. CV RDB-20-2575, 2021 WL 82864, at *1 (D. Md. Jan. 8, 2021) (quoting
Wikimedia Found. v. Nat’l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017)).
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Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain a
“short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “A complaint has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “Threadbare recitals
of elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Id. (citing Twombly, 550 U.S. at 555). Thus, “although for the purposes of a motion to
dismiss we must take all of the factual allegations in the complaint as true, we are not bound
to accept as true a legal conclusion couched as a factual allegation.” Id. A plaintiff must
plausibly allege facts that, if proven, would be sufficient to establish each element of the
claim. Accordingly, we must examine each of the alleged defamatory statements and
determine whether Harvey has, with respect to any of them, established all of the elements
of a claim of defamation. Where a plaintiff fails to state a claim in his amended complaint
after having been “advised with specificity of the legal deficiencies” in the initial
complaint, dismissal with prejudice is appropriate. Watkins v. Wash. Post, No. PWG-17-
818, 2018 WL 805394, at *8 (D. Md. Feb. 9, 2018) (citing Weigel v. Maryland, 950. F.
Supp. 2d 811, 825-26 (D. Md. 2013)).
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III.
A.
To establish a prima facie case of defamation under Maryland law, 5 a plaintiff must
sufficiently allege “(a) a false and defamatory statement concerning another; (b) an
unprivileged publication to a third party; (c) fault amounting to at least negligence on the
part of the publisher; and (d) either actionability of the statement irrespective of special
harm or the existence of special harm caused by the publication.” Rabinowitz v. Oates,
955 F. Supp. 485, 488 (D. Md. 1996) (citing DeLeon v. St. Joseph Hosp., Inc., 871 F.2d
1229, 1236 (4th Cir. 1989)). “A defamatory statement is one which tends to expose a
person to public scorn, hatred, contempt or ridicule, thereby discouraging others in the
community from having a good opinion of, or from associating or dealing with, that
person.” Batson v. Shiflett, 602 A.2d 1191, 1210 (Md. 1992) (citing Bowie v. Evening
News, 129 A. 797, 799 (Md. 1925)). A defamatory statement must also “refer to some
ascertaining or ascertainable person, and that person must be the plaintiff.” Great Atl. &
Pac. Tea Co. v. Paul, 261 A.2d 731, 736 (Md. 1970). “‘A false statement is one that is not
substantially correct.’” Batson, 602 A.2d at 1212; see also Nanji, 403 F. Supp. 2d at 431(explaining that a statement is only false if it is “not substantially correct”).
5
Jurisdiction in the district court was based on diversity of citizenship under 28
U.S.C. § 1332(a), thus Maryland law applies. Hartford Fire Ins. Co. v. Harleysville Mut.
Ins. Co., 736 F.3d 255, 261 n.3 (4th Cir. 2013) (citing Erie R. Co. v. Tompkins, 304 U.S. 64(1938)).
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B.
In finding that the Amended Complaint remained insufficient to state a claim of
defamation, the court concluded that (1) the Amended Complaint “ha[d] done nothing to
address this Court’s concerns that the statements have little [to] do with Harvey at all,” J.A.
314; (2) it “failed to address the fact that none of the statements are materially false,” id.;
(3) the additional allegations made to address the court’s concerns that the statements were
not defamatory “d[id] not aid[] Harvey’s case,” J.A. 315; and (4) it “fail[ed] to show that
CNN made any of the allegedly defamatory statements with actual malice” as required by
his status as a public official. J.A. 316. Harvey has also appealed the district court’s earlier
ruling that the statements are also protected by Maryland’s fair report privilege. We have
examined Harvey’s Amended Complaint and agree with the district court that his
amendments failed to address the deficiencies identified in the initial complaint.
1.
The first element of defamation requires a plaintiff to allege that a particular
statement is about him, false, and defamatory. Harvey’s Amended Complaint narrowed
his allegations to five purportedly defamatory statements. J.A. 102–04. In summary, CNN
reported that Parnas intended to testify that Nunes and three aides, including Harvey, went
to Vienna where Nunes met several times with Shokin, that Nunes recruited Parnas in an
effort to merge his investigative operations with Giuliani’s, and that Nunes directed Harvey
to meet with Parnas to discuss how to “reach out to . . . various Ukraine prosecutors, who
might have information on the Bidens.” J.A. 103. The statements also included the
allegation that Parnas learned through Harvey that the trip was deliberately timed to avoid
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disclosing details about the trip to House Democrats. This statement is independently
corroborated in part by the Congressional Record, which documents that Nunes, Harvey,
and others went to Europe during the relevant time period, although it does not reveal the
purpose of the trip or with whom they met. Finally, CNN reported that Parnas’ attorney
said Parnas would testify that after the trip, he and Harvey met at the Trump International
Hotel to discuss “claims about the Bidens.” J.A. 102.
Despite Harvey’s efforts to address the district court’s concerns that this element
was not sufficiently pled, most of the statements Harvey complains of continue to be about
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 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. As the district court found, “[t]he statements allege nothing
more than that Harvey was a source of information about Nunes” or that he was a
“subordinate acting in compliance with the orders of his superior.” J.A. 314.
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. See Iqbal, 556 U.S. at 678. 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.” Nanji, 403 F. Supp. 2d at 431; see also
Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir. 1993) (“[W]here the alleged
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defamatory ‘sting’ arises from substantially true facts, the plaintiff may not rely on minor
or irrelevant inaccuracies to state a claim for libel.”) (citing AIDS Counseling & Testing
Ctrs. v. Grp. W Television, Inc., 903 F.2d 1000, 1004 (4th Cir. 1990)).
And even though Harvey denies attending any meeting or having any discussions
with Parnas about reaching out to Ukrainian prosecutors who might have information on
the Bidens and asserts that CNN’s statements are entirely fabricated, J.A. 111–12;
Appellants’ Br. 22–23, instant messages disclosed during former President Trump’s first
impeachment proceedings show that Harvey worked with Parnas to arrange meetings with
Ukrainian prosecutors and to plan subsequent meetings at the Trump International Hotel.
See J.A. 178, 220–35. Harvey does not deny in his Amended Complaint that he engaged
in these communications. Because the alleged defamatory “sting” in this case arises from
the true fact that Harvey arranged for meetings with Ukrainian prosecutors, including
Shokin, Harvey cannot rely on any minor or irrelevant alleged inaccuracies in the
statements to support his defamation claim. See Chapin, 993 F.2d at 1092. Accordingly,
Harvey has not pled sufficient facts to establish that the statements about him are materially
false.
Harvey also made additions to his initial complaint to address the district court’s
conclusion that the statements were not defamatory. He added allegations that the
statements “would adversely affect his fitness to be an intelligence officer,” and “could
cost him his security clearance and subject him to discipline,” and that the false allegation
that he published “derogatory statements concerning Nunes—Plaintiff’s superior” was
“highly prejudicial” to his position as Nunes’ aide. J.A. 138–39. Presumably, these
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additions were intended to support Harvey’s assertion that the statements imputed to him
demonstrated “unethical or improper conduct” in his profession as a congressional aide
and intelligence officer, and that such statements are “universally found to be defamatory.”
See, e.g., Wagner v. Gibson, No. CIV. WDQ-12-3581, 2013 WL 4775380, at *4 (D. Md.
Sept. 4, 2013).
In Wagner, the statements at issue were deemed defamatory because they “imputed
incapacity or lack of due qualifications.” Id.; see also Thompson v. Upton, 146 A.2d 880,
883 (Md. 1958) (explaining that “libel” includes “publication that relates to a person’s
office, trade, business or employment, if the publication imputes to him some incapacity
or lack of due qualifications”); Siegert v. Gilley, 500 U.S. 226, 228 (1991) (finding
defendant’s description of plaintiff as “both inept and unethical, perhaps the least
trustworthy individual I have supervised in my thirteen years” defamatory.). But no such
implication was made here. Unlike the statements in Wagner, Thompson, and Siegert, 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. 6
6
Harvey also objects to the district court’s reliance, in part, on its conclusion that it
was not defamatory for CNN to state or imply that Harvey was acting at Nunes’ direction
to gather information relating to a political rival because the Republican House leadership
(Continued)
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Moreover, that Harvey was purportedly the source of the information is not
defamatory. See Burrascano v. Levi, 452 F. Supp. 1066, 1072 (D. Md. 1978) (accusing
someone of being an informant is not libelous), aff’d sub nom. Burrascano v. U.S. Att’y
Gen., 612 F.2d 1306 (4th Cir. 1979). And “[s]tatements to the effect plaintiffs have a secret
is not itself defamatory, even a politically explosive one.” Nunes v. Lizza, 486 F. Supp. 3d
1267, 1282 (N.D. Iowa 2020); see also McCafferty v. Newsweek Media Grp., Ltd., No. CV
18-1276, 2019 WL 1078355, at *4 (E.D. Pa. Mar. 7, 2019) (finding that defendant’s
statement that certain actions were taken to “camouflage a political agenda” was not
defamatory), aff’d, 955 F.3d 352 (3d Cir. 2020). Thus, we agree with the district court that
even with Harvey’s amendments, the Amended Complaint still fails to sufficiently plead
that CNN’s statements about him were defamatory.
2.
a.
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. “[A] public official suing for defamatory statements relating to
official conduct” must prove “by clear and convincing evidence, that ‘the statement was
thought that there was “nothing wrong with asking serious questions about the Bidens and
their dealings in Ukraine.” J.A. 76 (citing H.R. Rep. No. 116-346, at 3-4 (2019) (H. Comm.
on the Judiciary Report on the Impeachment of Donald J. Trump, President of the United
States). He argues that the relevant audience that could find the statements defamatory was
broader than the Republican Party leadership. We need not address this question. The
district court clearly relied on multiple alternative grounds for the dismissal of the
complaint, noting that it “failed to state a claim for defamation for numerous additional
reasons.” J.A. 76.
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made with “actual malice”—that is, with knowledge that it was false or with reckless
disregard of whether it was false or not.’” Hosmane v. Seley-Radtke, 132 A.3d 348, 354
(Md. App.), aff’d, 149 A.3d 573 ( Md. 2016) (citing N.Y. Times, 376 U.S. at 279–80); see
also Samuels v. Tschechtelin, 763 A.2d 209, 242 (Md. App. 2000) (citing Shapiro v.
Massengill, 661 A.2d 202, 217 (Md. App. 1995)) (“[A]ctual malice is established when the
plaintiff shows, by clear and convincing evidence, that the defendant published the
statement in issue either with reckless disregard for its truth or with actual knowledge of
its falsity.”). We agree with the district court that the Amended Complaint did not
sufficiently allege actual malice.
The district court first determined that Harvey was a public official required to plead
and prove 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. 7 And because he plausibly alleged a claim of defamation, the court
erred in dismissing his false light claim and in granting CNN’s request for an award of fees
and costs. We find none of Harvey’s arguments availing.
b.
As a preliminary matter, we affirm the district court’s conclusion that Harvey was
a public official. “[T]he ‘public official’ designation applies ‘at the very least to those
among the hierarchy of government employees who have, or appear to the public to have,
substantial responsibility for or control over the conduct of government affairs.’” Horne
7
Harvey has preserved for further appeal his argument that N.Y. Times v. Sullivan
should be reconsidered. See J.A. 274–76; Appellant’s Br. 25.
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v. WTVR, LLC, 893 F.3d 201, 207 (4th Cir. 2018) (citing Rosenblatt v. Baer, 383 U.S. 75,
85 (1966)). “The public official category is by no means limited to upper echelons of
government. All important government employees are subject to discussion by the people
who employ them and by others who would comment on their behavior. Thus, a plaintiff
with either actual or apparent substantial responsibility can be deemed a public official for
purposes of a defamation claim.” Id. (internal citations omitted) (citing Rosenblatt, 383
U.S. at 85–86).
Harvey argues that he should not have been required to plead actual malice because
his role as a former member of the National Security Council and Nunes’ Senior Advisor
did not per se make him a public figure and that he did not voluntarily assume a prominent
role in the public controversy surrounding the investigation of the Bidens or the former
President’s impeachment. We disagree. Harvey “held positions involving substantial
direction and control of governmental affairs” and exercised “significant discretion” on
Nunes’ behalf. J.A. 96. See McFarlane, 74 F.3d at 1301 (aide to U.S. Senator found to be
a public figure “having held various high-level positions” in government); De Falco v.
Anderson, 506 A.2d 1280, 1284 (N.J. Super. Ct. App. Div. 1986) (former aide to U.S.
Congressman deemed a public figure).
The authorities Harvey cites in support of his assertion that he is a private individual
for purposes of his defamation claim are not persuasive. He asserts that our case is
analogous to Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), where the court determined
that the petitioner, an attorney hired to represent the family of a shooting victim in a civil
action against a police officer, was not a public figure. Harvey maintains that he, like the
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petitioner, is not a public figure because he did not “voluntarily assume a role of special
prominence in this public controversy.” See id. at 351. This case is clearly distinguishable.
As the Gertz Court noted, “at the time of publication [the petitioner] had never held any
remunerative governmental position,” and his “appearance at the coroner’s inquest” in a
role “related solely to his representation of a private client” did not “render[] him a ‘de
facto public official.’” See id. at 351–52; see also Wells v. Liddy, 186 F.3d 505, 536–37
(1999) (explaining that the public exposure of a Democratic National Committee secretary
during and after break-in did not support a finding that she “voluntarily assume[d] a role
of special prominence” in the ongoing “public controversy” regarding Watergate). We
agree with the district court that “[g]iven the perceivable and presumably actual importance
of Harvey’s [former] position, as well as his significant history of public service, including
his appointment to the National Security Council,” Harvey was “a public official and was
therefore required to plead actual malice in this case.” J.A. 97.
c.
Next, 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. But these conclusory allegations fall short. See
Mayfield, 674 F.3d at 377–78 (explaining that conclusory allegations are insufficient to
adequately plead knowledge of falsity or reckless disregard for the truth and that a plaintiff
must plead enough facts to raise the existence of knowledge of falsity “above the
speculative level.”). The actual malice standard is subjective; whether the speaker
knowingly uttered a falsehood or “in fact entertained serious doubts as to the truth of his
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publication” is measured by the state of mind of “the persons . . . having responsibility for
the publication.” Id. at 287.
Harvey contends that CNN’s statements were made with malice because they either
knew the statements were false, or acted with reckless disregard for the truth. But his
Amended Complaint did not add any new facts regarding the state of mind of the reporters
who published the statements, and still does not plausibly allege that Ward or the other CNN
reporters subjectively knew the information was false, or that it was subjectively false.
Harvey argues there were obvious reasons for CNN to doubt the veracity and accuracy
of information received from Parnas, including his questionable character and his indictment
on federal charges, but CNN instead minimized problems with his credibility and ignored
information that would have demonstrated the falsity of his statements in order to facilitate the
publication of a fabricated story. Harvey also asserts that malice was shown by CNN’s failure
to interview Shokin to verify that Parnas’ story was false. Harvey characterized Shokin as an
“easily accessible” witness, as evidenced by “the ease with which the Washington Post and
[One American News Network] found [him].” J.A. 118–119, 123–128.
But “[c]ourts have consistently held that reliance on tainted or troubled sources does
not alone establish actual malice.” Talley, 923 F.3d at 903. Moreover, including the grounds
for doubting a source, as CNN did here, may actually rebut a claim of malice. McFarlane,
74 F.3d at 1304. CNN reported that Parnas had been indicted on federal campaign finance
charges, and characterized the statements made through his lawyer as “claims.” CNN also
acknowledged that Shokin had not verified whether the substance of Parnas’ purported
testimony was either true or false, reporting that “CNN was unable to reach Shokin for
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comment.” J.A. 186. Harvey has not offered any evidence that CNN’s statement on this
point was untrue. In sum, “‘naked assertion[s]’ devoid of ‘further factual enhancement’”
that a defendant has “failed to observe journalistic standards, conceived a storyline in
advance and sought to find evidence to confirm that story, and relied on unreliable or biased
sources in researching” a purportedly defamatory article, fail to plausibly allege malice.
Lizza, 486 F. Supp. 3d, at 1297 (citing Twombly, 550 U.S. at 555, 557).
d.
Finally, Harvey fails to state a claim for defamation for the additional reason that he
cannot show that any of CNN’s statements are not privileged. See Marinkovic v. Vasquez,
No. GLR-14-3069, 2015 WL 3767165, at *5 (D. Md. June 16, 2015) (explaining that to
prevail on a claim for defamation, a plaintiff must prove all elements of defamation and
that the statements are not privileged). Under Maryland law, the fair report privilege
protects those who “report legal and official proceedings that are, in and of themselves
defamatory, so long as the account is ‘fair and substantially accurate.’” Piscatelli, 35 A.2d
at 1149 (quoting Chesapeake Publ’g Corp., 661 A.2d at 1174). “The privilege arises from
the public interest in having access to information about official proceedings and public
meetings.” Id. (citation omitted).
The district court held, and we agree, that Harvey failed to state a claim because
CNN’s statements were privileged under the fair report privilege. The court properly found
that CNN fairly and accurately reported on what Bondy said his client would say in
response to the subpoena and summarized (and provided a link to) official documents from
the impeachment proceedings that revealed Harvey’s discussions regarding interviews
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with Ukrainian prosecutors. See Gubarev v. BuzzFeed, Inc., 340 F. Supp. 3d 1304, 1318–
19 (S.D. Fla. 2018) (finding that where an article included a conspicuous hyperlink to
documents related to an official proceeding, the ordinary reader could understand the
article was a report on those proceedings and thus was protected by Florida’s fair report
privilege). None of Harvey’s amendments to his initial complaint address the district
court’s holding on this issue. 8
Nevertheless, Harvey maintains first that CNN published statements are not and
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 cannot show that the statements made by CNN were not privileged, and therefore
8
We note that Maryland also recognizes an absolute privilege for statements made
by an attorney of record in both judicial and quasi-judicial proceedings, as well as those made
by an attorney of record extrinsic to such proceedings under certain circumstances. Norman,
17 A.3d at 708–11. Extrinsic statements are protected, among other circumstances, when
such statements are “connected contextually” to a pending or ongoing judicial or quasi-
judicial proceeding although “not designed necessarily to produce a proceeding or cause one
to be filed.” Id. at 710–11. “Connected contextually” means having “some rational,
articulable relevance or responsiveness to [a] proceeding.” Id. at 714. “Maryland courts
recognize an absolute privilege for attorneys to make potentially defamatory statements if
the statements have some rational relationship to the judicial proceedings.” Mixter v.
Farmer, 81 A.3d 631, 634 (Md. 2013). The absolute privileges accorded to attorneys and
other participants in judicial proceedings work alongside the qualified fair report privilege
“given to persons who report to others defamatory statements uttered during the course of
judicial proceedings.” Rosenberg v. Helinski, 616 A.2d 866, 872 (Md. 1992). Here, not only
were CNN’s published statements protected by the fair report privilege, Bondy’s statements
about which CNN reported were also privileged, as they were rationally related to the
impeachment proceedings and thus absolutely privileged under Maryland law.
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for this and all the foregoing reasons, he cannot state a claim for defamation under
Maryland law. 9
3.
Harvey’s Amended Complaint also includes a claim for false light invasion of
privacy. Under Maryland law, to succeed on a claim for false light, the plaintiff must show
that (1) the defendant “g[ave] publicity to a matter concerning [the plaintiff] that place[d]
the [plaintiff] before the public in a false light,” (2) “the false light” “would be highly
offensive to a reasonable person,” and (3) the defendant knew or recklessly disregarded
“the falsity of the publicized matter and the false light in which the [plaintiff] would be
placed.” Ostrzenski v. Seigel, 177 F.3d 345, 252 (4th Cir. 1999) (internal citations omitted).
But “[a] claim for placing [a] plaintiff in false light . . . may not stand unless the claim also
meets the standards of defamation.” Watkins, 2018 WL 805394, at *4; see also Ross, 878
F. Supp. 2d at 624 (D. Md. 2012) (same). Because Harvey has failed to state a claim for
defamation, his false light claim fails as well.
IV.
Finally, Harvey challenges the district court’s decision to award sanctions to CNN
pursuant to both its inherent authority and 28 U.S.C. § 1927. We are convinced that under
9
Because we affirm the district court’s findings that Harvey failed to sufficiently
plead actual malice and that CNN’s statements are privileged, we need not address
Harvey’s additional argument that any privilege CNN had has been “forfeited” because the
statements were made by an unreliable source—Parnas—and with actual malice.
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either legal standard, the district court abused its discretion in sanctioning Harvey and his
counsel.
Harvey and his counsel 10 argue that the district court abused its discretion in
sanctioning them on both procedural and substantive grounds. They allege that the court
failed to provide them with adequate process before imposing sanctions, and that the filing
of the Amended Complaint did not justify an award of fees and costs. Sanctions under 28
U.S.C. § 1927 and the district court’s inherent authority require severe misconduct
reflecting clear bad faith, and they maintain that their conduct in no way met that standard.
A.
This Court reviews the award of sanctions pursuant to a court’s inherent authority,
and under 28 U.S.C. § 1927, for abuse of discretion. Six v. Generations Fed. Credit Union,
891 F.3d 508, 518–19 (4th Cir. 2018) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 55
(1991) (“We review a court’s imposition of sanctions under its inherent power for abuse of
discretion.” (internal citations omitted)); EEOC v. Great Steaks, Inc., 667 F.3d 510, 522
(4th Cir. 2012) (“Our review of a district court’s decision concerning whether to award
costs, expenses, and attorneys’ fees under [28 U.S.C. § 1927] is for abuse of discretion.”
(internal citations omitted)). We review “the factual findings underpinning” a sanctions
award “for clear error,” Newport News Holdings Corp. v. Virtual City Vision, Inc., 650
F.3d 423, 443 (4th Cir. 2011), and issues of law de novo. Resorts of Pinehurst, Inc. v.
Pinehurst Nat’l Corp., 148 F.3d 417, 423 (4th Cir. 1998). While “[a] district court’s
10
Meadows appealed separately on the issue of sanctions. Harvey and Biss have
expressly adopted Meadows’ arguments. See Appellant’s Opening Br. at 29 n.13.
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decision to impose sanctions is entitled to substantial deference,” Blue v. Dep’t of Army,
914 F.2d 525, 538 (4th Cir. 1990), abuse of discretion may be found where “‘on the entire
evidence [we are] left with the definite and firm conviction that a mistake has been
committed.’” Six, 891 F.3d at 519 (citing Anderson v. City of Bessemer City, 470 U.S. 564,
573 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
Federal courts’ authority to sanction “derives from courts’ ‘certain “inherent
powers,” not conferred by rule or statute, “to manage their own affairs so as to achieve the
orderly and expeditious disposition of cases.”’” Six, 891 F.3d at 519 (quoting Goodyear
Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186 (2017)). Courts are empowered “to
fashion an appropriate sanction for conduct which abuses the judicial process,” such as “an
order . . . instructing a party that has acted in bad faith to reimburse legal fees and costs
incurred by the other side.” Id.Similarly, Section 1927 authorizes a court to require “[a]ny attorney . . . who so
multiplies the proceedings in any case unreasonably and vexatiously” to “satisfy personally
the excess costs, expenses, and attorneys’ fees reasonably incurred because of such
conduct.” 28 U.S.C. § 1927. It also permits an award of sanctions “for bad-faith conduct
that wrongfully multiplies proceedings.” Id. at 520; see also West Coast Theater Corp. v.
City of Portland, 897 F.2d 1519, 1528 (9th Cir. 1990) (“Section 1927 sanctions require a
bad faith showing.”). Inherent then, in both the court’s authority to impose sanctions and
in Section 1927, is an element of bad faith. Here, we are convinced that the district court
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erred in sanctioning Harvey and his counsel 11 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.
B.
Harvey and his counsel cite two grounds for the vacatur of the district court’s
sanctions order. First, they argue that the court failed to provide them with required
procedural protections before the imposition of sanctions. Second, the court did not
establish an adequate basis to conclude that the Amended Complaint was filed in bad faith
11
We reject CNN’s argument that Biss failed to personally note an appeal of the
sanctions award. A notice of appeal must “specify the party or parties taking the appeal by
naming each one in the caption or body of the notice.” Fed. R. App. P. 3(c)(1)(A); Newport
News Holdings Corp., 650 F.3d at 443. Biss has complied with the plain language of Rule
3(c)(1)(A). The body of the Notice of Appeal, as amended, provides: “Plaintiff/Appellant,
Derek J. Harvey and his Counsel, Steven S. Biss . . . , hereby files this Amended Notice of
Appeal, and notes his Appeal to the United States Court of Appeals for the Fourth Circuit
from” the district court’s order “awarding CNN fees and costs” and its subsequent order
granting CNN its requested amount of attorney’s fees and expenses. J.A. 399–400
(emphasis added). The body of the Notice of Appeal names Biss as a party taking the
appeal. No further compliance with Rule 3(c)(1)(A) is required. See also Lokhova v.
Halper, 30 F.4th 349, 353 (4th Cir. 2022) (Federal Rule of Appellate Procedure
3(c)(1)(A)’s “use of the disjunctive confirms the efficacy of naming the parties in either
the notice’s caption or its body”).
CNN maintains that Biss’ intent to appeal the sanctions award on his own behalf
was not “objectively clear” in the Notice of Appeal. See Fed. R. App. P. 3(c)(7) (explaining
that an appeal will not be dismissed “for failure to name a party whose intent to appeal is
otherwise clear from the notice”); In re United Refuse LLC, 171 F. App’x 426, 430 (4th
Cir. 2006) (quoting advisory committee notes to Rule 3(c) (intent to appeal must be
“objectively clear.”)). But this Court makes an “objectively clear” intent inquiry only when
an appellant has “ fail[ed] to name a party” who intends to appeal as required by Rule
3(c)(1)(A). See Fed. R. App. P. 3(c)(7). This is not the case here. Although unartfully
done, Biss did manage to name himself, along with his client, as an appellant in this case.
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and therefore abused its discretion in sanctioning them. We address each of these
arguments in turn.
1.
Pursuant to Federal Rule of Civil Procedure 7, “[a] request for a court order must
be made by motion.” Fed. R. Civ. P. 7(b)(1). The motion “must be in writing,” “state with
particularity the grounds for seeking the order;” and “state the relief sought.” Fed. R. Civ.
P. 7(b)(1)(A)-(C). Further, District of Maryland Local Rules require that each motion
include a separate “memorandum setting forth the reasoning and authorities in support of
it,” D. Md. Local R. 105.1, and that judges request responses before granting sanctions
motions, see D. Md. Local R. 105.8(b).
CNN did not file a separate motion for the imposition of sanctions. Instead, CNN—
in a single-sentence footnote on the last page of its memorandum in support of its motion
to dismiss the Amended Complaint—argued that “CNN should be awarded fees, costs, and
expenses for the filing of th[e] motion to dismiss the Amended Complaint . . . because the
filing [of] a nearly identical Amended Complaint has multiplied the proceedings
unreasonably and vexatiously,” and cited, without discussion, a string of cases in support
of its demand. J.A. 183. The Appellants contend that the district court, in ruling on a
request for sanctions made in a footnote rather than requiring a formal motion afforded
them no meaningful opportunity to respond as required by the district court’s local rules,
or to address the circumstances related to Meadows’ filing of the Amended Complaint as
local counsel. CNN nevertheless argues that its footnote seeking sanctions satisfies the
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requirements of Rule 7, and further that even in the absence of a motion, the district court
had the discretion to consider its request.
First, we find no merit in CNN’s argument that its request for sanctions has met the
requirements of either Rule 7 or the applicable local rules. Our Court addressed similar
circumstances in Cozzarelli v. Inspire Pharmaceuticals, 549 F.3d 618 (4th Cir. 2008). There,
the plaintiffs “never filed a motion for leave to amend” or “present[ed] the district court with
a proposed amended complaint.” Id. at 630. They “instead requested leave to amend only
in a footnote of their response to defendants’ motion to dismiss, and again in the final
sentence of their objections to the recommendation of the magistrate judge.” Id. This Court
found that “[t]hose requests did not qualify as motions for leave to amend, see Fed. R. Civ.
P. 7(b), 15(a), and we cannot say that the district court abused its discretion by declining to
grant a motion that was never properly made,” Id. at 630–31 (citing United States ex rel.
Williams v. Martin–Baker Aircraft Co., 389 F.3d 1251, 1259 (D.C. Cir. 2004)).
Thus, we turn to whether the court denied Harvey and his counsel process, and
thereby abused its discretion, in granting a request for sanctions that did not comply with
the procedural requirements of Rule 7(b) or the applicable local rules. Certainly, this Court
has warned against ruling on a “minimally addressed” issue based on arguments only raised
in a footnote, as it is “‘unfair’” to the opposing party “‘and would risk an improvident or
ill-advised opinion on the legal issues raised.’” Sanders v. Callender, No. CV DKC 17-
1721, 2018 WL 337756, at *7 (D. Md. Jan. 9, 2018) (quoting Hunt v. Nuth, 57 F.3d 1327,
1338 (4th Cir. 1995)). “This reasoning has led district courts to decline to consider
arguments only raised in a footnote.” Id.34
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But in undertaking the necessary review in this case, we must acknowledge that
despite the absence of a formal motion and their assertion that they “need not respond to
an argument—as opposed to a motion—for sanctions,” J.A. 283 n.14, Harvey and his
counsel did respond to CNN’s sanctions request, asserting (with the support of several
citations to case law) that the complaint was amended in good faith and that CNN had
failed to show bad faith on their part that warranted the “drastic” award of sanctions for
amending the complaint. Id. And CNN replied, stating that a “separate motion is not
necessarily required to request § 1927 sanctions,” Meathe v. Ret, 547 F. App’x 683, 691
(6th Cir. 2013), and that the district court’s inherent power to order sanctions is “organic,
without need of a statute or rule for its definition,” Kaur v. Grigsby, No. PWG-17-7, 2017
WL 4050229, at *2 (D. Md. Sept. 13, 2017) (quoting United States v. Shaffer Equip. Co.,
11 F.3d 450, 462 (4th Cir. 1993)). On the merits, CNN reiterated that the proceedings were
multiplied by the filing of a nearly-identical Amended Complaint that did nothing to cure
the deficiencies, and this bad faith conduct warranted sanctions. Thus, the district court,
having received written argument on both the procedural and substantive issues, ruled on
the request without further briefing or a hearing. And Meadows’ opportunity to be heard
on the issue of sanctions did not end there. He moved the court to reconsider the imposition
of sanctions and filed an accompanying memorandum in support to which CNN responded.
In light of these facts, and where there were ample opportunities to object, we cannot
conclude, under the unique circumstances of this case, that it was an abuse of discretion
for the district court to consider the sanctions request without a formal motion. See Meathe,
547 F. App’x at 691 (explaining that a “separate motion is not necessarily required to
35
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request § 1927 sanctions” where the issue is “squarely presented before the court” through
argument in the brief in opposition to motion for leave to amend).
2.
Turning to the merits, we address whether the district court abused its discretion in
awarding sanctions based on a finding of bad faith. The district court invited Harvey to
amend his complaint within fifteen days if he “possesse[d] facts to cure such manifest
deficiencies addressed in [its] Memorandum Opinion,” J.A. 99, and warned that an
amended complaint that did not cure the deficiencies would be dismissed with prejudice.
In dismissing the Amended Complaint, the court found that “Harvey and his counsel
unreasonably and vexatiously extended this matter in bad faith with the filing of a last-
minute Amended Complaint which did not in any way seek to cure the deficiencies
previously addressed by this Court,” J.A. 308, and that its filing was “the sort of bad faith”
that courts have found to merit sanctions under 28 U.S.C. § 1927 and under a court’s
inherent authority to sanction. J.A. 319.
CNN maintains that the district court was well within its discretion to award
sanctions for filing a substantially duplicative complaint that violated the court’s
conditional leave to amend and that required CNN and the court to expend time and
resources in response. But Harvey and his counsel maintain that they did not act in bad
faith or willfully abuse the judicial process, nor did the filing of the Amended Complaint
unreasonably or vexatiously multiply the proceedings. They argue that sanctions under 28
U.S.C. § 1927 and the district court’s inherent authority both require severe misconduct
reflecting clear bad faith. Their conduct, they assert, reflects instead their good faith effort
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to serve their client’s interests and to prevent dismissal of the action in the face of
challenging circumstances, and that proceedings in this case—unlike cases in which
sanctions are typically awarded—were extended by only a few weeks. We conclude that
the district court abused its discretion in awarding sanctions. The record does not support
a finding that Harvey and his counsel undertook the effort to amend the complaint and to
survive CNN’s motion to dismiss in bad faith.
To review the district court’s award of sanctions, we examine the court’s findings
and its explanation for making the sanctions award. See Tenkku v. Normandy Bank, 348
F.3d 737, 743 (8th Cir. 2003) (“In imposing sanctions under § 1927, the district court must
make findings and provide an adequate explanation so that we may review its
determination that sanctions were warranted.” (citing Lee v. L.B. Sales, Inc., 177 F.3d 714,
718–19 (8th Cir. 1999)). The district court relied on certain facts in finding that Harvey
and his counsel “unreasonably and vexatiously extended [the] matter in bad faith.” J.A.
308. The court first characterized the Amended Complaint as “last-minute,” id., noting
that it was filed electronically after the clerk’s office closed and “just hours” before the
midnight deadline. J.A. 319. But ultimately, evidence that the Amended Complaint was
filed just before the deadline at the end of a prescribed 15-day period set by the court does
not establish bad faith or otherwise support a conclusion that counsel sought to
“unreasonably” or “vexatiously” extend the proceedings. These facts carry little weight
given the short period of time provided for amendment and filing.
Of more concern is that the Amended Complaint did not cure the deficiencies in
Harvey’s initial complaint. There is no dispute that the district court warned Harvey of
37
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dismissal with prejudice should his Amended Complaint fail to allege facts to cure the
deficiencies identified by the court. But when a district court grants leave to amend a
complaint and later finds, as it often does, that an amended complaint continues to fail to
state a claim, the typical outcome is dismissal of the amended complaint, not an award of
sanctions against the litigant and his counsel for making an attempt. Although Harvey’s
effort to amend was unsuccessful, his filing of a single amended complaint does not, under
the circumstances presented here, demonstrate a level of egregiousness, a pattern of
misconduct, or result in protracted litigation to the extent that this Court and others have
found bad faith that warranted sanctions.
Although the district court decided, and we now affirm, that the Amended
Complaint fell short of stating a claim of either defamation or false light invasion of
privacy, we cannot conclude that the amendments were made in bad faith. As the district
court acknowledged, “Harvey made some additions to his Amended Complaint that were
presumably meant to address this Court’s concerns that none of the statements were
actually defamatory,” but concluded the “additions d[id] not aid the Plaintiff’s case” and
that the cases he cited were distinguishable. J.A. 315. Harvey made several amendments
that were more than “minimal” or “superficial.” J.A. 382. Harvey’s counsel reduced the
number of defamatory statements from twenty to five, deleting statements the court found
were not about Harvey. He also deleted his requests for damages and an injunction because
the court had already held that they would not state a claim. He then added allegations that
the statements were “materially false,” tended to expose him to “public scorn, hatred,
contempt or ridicule,” defamed him in his capacity as a congressional advisor and
38
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intelligence officer, and could jeopardize his security clearance. In the end, however, the
court found that Harvey had not pled sufficient facts to support his amended allegations.
But we cannot conclude that these efforts are equivalent to those we have found
sanctionable.
In its Memorandum Opinion, the district court likened the conduct of Harvey and
his counsel to that of litigants who were sanctioned under materially different
circumstances and for far more egregious conduct. None of the cases the district court cites
persuade us that Harvey’s filing of a single Amended Complaint, where the original
complaint was dismissed without prejudice and where the court invited him to amend,
justifies the sanctions award.
For example, the court in Wages v. IRS, 915 F.2d 1230 (9th Cir. 1990), affirmed
sanctions against a pro se litigant who “attempt[ed] to file an amended complaint that did
not materially differ from one which the district court had already concluded did not state
a claim,” concluding that it “evidenced bad faith in multiplying the proceedings . . .
‘unreasonably and vexatiously.’” Id. at 1235. But in that case, the court had dismissed an
initial complaint with prejudice after advising the litigant that “amending her complaint
would not cure the fundamental defects in her action.” Id. at 1233. Yet the litigant
proceeded to file an amended complaint that was substantially the same as the one the court
dismissed.
The same is true of Sweetland v. Bank of Am. Corp., 241 F. App’x 92 (4th Cir.
2007). There, the court affirmed a sanctions order where the litigant “pursued [his] claims
well after he knew that evidentiary support for the allegations would not be forthcoming”;
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“stall[ed] the discovery process through evasive and nonresponsive answers,” causing “the
magistrate judge [to] impose[] monetary sanctions”; “fil[ed] a baseless summary judgment
motion”; and made “intentional misrepresentations for the purpose of obtaining a
settlement from the defendants.” Id. at 97. The court found he engaged in “unreasonable
and vexatious” conduct “that increased the cost of the proceedings.” Id. at 98.
Finally, the district court found support for its sanctions award in In re Brown, 126
B.R. 615 (Bankr. M.D. Fla 1991). The court awarded sanctions on the grounds that the
plaintiff’s counsel filed an amended complaint that was an “almost verbatim” version of
the initial complaint that “did not even attempt to cure the defects which had been found
to exist in the original Complaint,” and thereby “unreasonably multipl[ied] proceedings by
requiring the Court to review two Complaints and hold hearings on two Motions To
Dismiss.” Id. at 617. For these transgressions, the court sanctioned him $300. Id.Our Circuit provided a more recent example of the type of conduct that constitutes
bad faith and that “unreasonably or vexatiously” extends the proceedings in Six v.
Generations Federal Credit Union, 891 F.3d at 508. We affirmed the imposition of
sanctions against three attorneys and their law firms where they “acted in bad faith and
vexatiously and violated their duty of candor by hiding a relevant and potentially
dispositive document from the Court” for nearly two years and thereby “multiplied the
proceedings, wasted court resources, misled the Court, and caused [the defendant] to incur
unnecessary attorney’s fees.” Id. at 517–18.
The cases upon which the district court relies as examples of sanctionable conduct
involve fraud, deceit, misrepresentation, harassment, and unethical conduct. Harvey and his
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counsel’s conduct did not rise to the level of misconduct that those courts have found
supports a finding of bad faith. Indeed, the circumstances presented in this case are more
akin to Anderson v. Smithfield Foods, Inc., 353 F.3d 912 (11th Cir. 2003), where the
plaintiffs appealed the district court’s imposition of Rule 11 sanctions against them for filing
an amended complaint. The Eleventh Circuit found the sanctions award was an abuse of
discretion because the plaintiffs had filed the amended complaint only after the district court
concluded that the plaintiffs were not seeking the proper remedy to vindicate their rights, but
then identified deficiencies in their pleadings and gave them leave to amend. Id. at 916.
Finally, we acknowledge that CNN incurred attorneys’ fees and costs in responding
to the Amended Complaint. But absent a finding that it was filed in bad faith or to
unreasonably or vexatiously extend the case, we cannot conclude that it was within the
district court’s discretion to compensate CNN for its time and expense in doing so. 12
V.
For the foregoing reasons, we affirm the dismissal of Harvey’s defamation and false
light claims, but vacate the award of sanctions against Harvey and his attorneys, Biss and
Meadows.
AFFIRMED IN PART, VACATED IN PART
12
Because we find that the district court’s award of sanctions is not justified under
the circumstances, we do not address the assertion that Meadows’ “circumstances as local
counsel” should have precluded the district court from sanctioning him.
41