Harvey v. Cable News Network, Inc.

48 F.4th 257

Derek J. HARVEY, Plaintiff – Appellant,

v.CABLE NEWS NETWORK, INCORPORATED, Defendant – Appellee,andLev Parnas; Joseph A. Bondy, Defendants.

Derek J. Harvey, Plaintiff,

v.Cable News Network, Incorporated, Defendant – Appellee,andLev Parnas; Joseph A. Bondy, Defendants,

v.Joseph Lee Meadows, Movant – Appellant.

No. 21-1527

No. 21-1535

United States Court of Appeals, Fourth Circuit.

Argued: March 8, 2022

Decided: September 2, 2022

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.

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.

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 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 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: Giuliani 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 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.

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 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...