Date: 06-13-2002

Case Style: Dolly Kyle Browning, et al. v. William Jefferson Clinton, et al.

Case Number: 01-5050

Judge: Tatel

Court: United States Court of Appeals for the District of Columbia Circuit

Plaintiff's Attorney: Larry Klayman argued the cause and filed the briefs for appellants.

Defendant's Attorney: David E. Kendall argued the cause for appellee William Jefferson Clinton, et al. With him on the brief were Allen P. Waxman, Kevin Hardy, Bruce Lindsey, appearing pro se, and William C. Oldaker.

John D. Aldock argued the cause and filed the brief for appellee Robert S. Bennett.

Floyd Abrams and Landis C. Best were on the brief for appellee Jane Mayer and Advanced Magazine Publishers Inc.

Description: This case involves appellant Dolly Kyle Browning's "long- standing friendship" with former President Clinton--a friend- ship she alleges "included an extramarital, sexual relation- ship"--and her "semi-autobiographical novel" in which the female protagonist has a long-standing extramarital affair with the governor of a southern state. Am. Compl. p p 15, 20. Browning copyrighted her novel in 1988 and sent it to War- ner Books, where an editor "encouraged [her] to continue to work on [it]." Id. p 22. Thereafter, Browning charges, Clin- ton and the other appellees engaged in a scheme to prevent publication of her book and defame her. According to the amended complaint, the scheme involved the following:

In 1992, Browning's own brother, allegedly at Clinton's direction, telephoned to "warn[ ] [Browning], 'if you cooperate with the media we will destroy you.' " Id. p 32. Clinton's brother also "threaten[ed] [her]" by phone. Id. p 33. The following year, appellee Bruce Lindsey, then serving as Depu- ty White House Counsel, "threatened [ ] Browning by telling her sister[,] 'we've read your sister's book and we don't want it published.' " Id. p 38.

In 1994, Browning and Clinton met at their thirtieth high school reunion where, according to Browning, Clinton "apolo- gized to [her] for the threat that had been made against her." Id. p 41. Shortly thereafter, Browning's sister and Lindsey, acting as intermediaries, reached an "understanding" about what Browning could say: She "was permitted to say publicly that she and Clinton had a thirty-three year relationship that from time to time included sex," but "agreed not to tell the true story" and "not to use ... the 'A words' ... adultery and affair"; Clinton agreed "not [to] tell any lies about [her]." Id. p 44 (internal quotation marks omitted).

Browning retained a literary agent in the summer of 1995. Later that year, Esquire magazine published an article about Browning and her book, and in early 1996, Publisher's Week- ly reported that Browning was "ready to go public in a big way via the book business[,] ... assuming, that is, that a publisher bites. This month, [Browning's literary agent] will begin shopping around a bombshell roman A clef that could knock Primary Colors right out of the headlines." Id. p 47 (internal quotation marks omitted) (first alteration in origi- nal). In the end, however, Browning received no "positive responses, offers to publish, or contracts from any of the publishers that she contacted." Id. p 55. Appellant Direct Outstanding Creations Corporation, a business created by Browning's husband, subsequently "acquired ... rights to ... the manuscript ... [but] has not been able to sell [those] rights to ... any publisher[ ]." Id. p 56.

Appellee The New Yorker ran an article in 1997 by appellee Jane Mayer attributing comments to publisher Alfred S. Regnery about "a memoir by a putative Presidential mis- tress." Id. p 51 (internal quotation marks omitted). Accord- ing to the article, although "[i]t seemed plausible ... that [such] a memoir ... would find a home at Regnery [Publish- ing Co.][,]" Regnery said he "wouldn't touch [the book] with a ten-foot pole" because it wasn't "particularly newsworthy" and was "far below [Regnery's] standards." Id. (internal quotation marks omitted). Browning claims that she never sent her manuscript to Regnery, and that Regnery never made these statements.

In January 1998, Clinton, in connection with his deposition in the Paula Corbin Jones litigation, produced a handwritten memo summarizing his high school reunion conversation with Browning. The memo, which Clinton testified he and appel- lee Marsha Scott, a White House aide, prepared several days after the reunion, states that when Clinton "pointed out that [Browning's book] wasn't true, [Browning] said[,] 'well, I'll say it's just fiction, just a story[,]' and that she needed the money and she didn't care if it hurt me or the presidency, that others had made money and she felt abandoned." Id. p 69 (internal quotation marks omitted). In his deposition, Clinton explained that after writing the first part of the memo, he gave it to Scott who read it and added her own notes. Id. p 73. Scott's portion reports that Browning "re- peatedly" stated that "her story was not true but ... she was angry and needed money." Id. p 74 (internal quotation marks omitted). Time later published excerpts from the memo.

In March 1998, Jones, in opposition to Clinton's motion for summary judgment in that litigation, filed a ninety-page brief and 600 pages of exhibits, among which were statements from several witnesses, including a four-page affidavit from Brown- ing describing her alleged affair with Clinton. Appellee Robert S. Bennett, Clinton's attorney, appeared on CNN and described Jones's filing as "scurrilous." Id. p 80 (internal quotations omitted). At a press conference later that month, Bennett called Jones's "700-page filing"

little more than a web of deceit and distortions.... Despite the plaintiff's ... insistence on using her last filing to dump into the media every piece of garbage they can get before the court, we will not respond in kind to that. Despite their vicious and false attacks, our filing focuses on the weaknesses of the plaintiff's case and her witnesses .... Because they dumped so much garbage .... we had to move to strike it and to present substan- tial evidence ... to rebut that salacious material.

Id. p 81.

Based on the foregoing, Browning asserts eight common and federal law claims: (1) tortious interference with prospec- tive business opportunity (against all appellees); (2) dispar- agement of property (against The New Yorker and Mayer); (3) defamation (against Clinton, Scott, and Bennett); (4) "false light" invasion of privacy (against Clinton, Scott, and Bennett); (5) intentional infliction of emotional distress (against Clinton, Lindsey, Scott, and Bennett); (6) civil RICO (against Clinton and Lindsey); (7) Bivens liability for viola- tion of the First Amendment (against Clinton and Lindsey); and (8) civil conspiracy (against all appellees). Concluding that Browning failed to state a claim with respect to each count and denying leave to amend, the district court dis- missed the complaint with prejudice under Federal Rules of Civil Procedure 12(b)(6) and 15(a). Browning appeals.

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Click the case caption above for the full text of the Court's opinion.

Outcome: Affirmed in part and reversed in part

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: None