                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
PATRICIA SMITH, et al.,              )
                                     )
                  Plaintiffs,       )
                                     )
      v.                            )    Civil Action No. 16-1606 (ABJ)
                                     )
HILLARY RODHAM CLINTON,             )
                                     )
                  Defendant.         )
____________________________________)

                                  MEMORANDUM OPINION

       Plaintiffs Patricia Smith and Charles Woods have brought this action against the former

Secretary of State, Hillary Rodham Clinton (“Secretary Clinton”), alleging that Secretary Clinton’s

use of a private email server caused the death of their sons Sean Smith and Tyrone Woods.

Plaintiffs’ theory is that Secretary Clinton’s use of the private email account when she was serving

as Secretary of State exposed confidential information about plaintiffs’ relatives to the terrorists

who ultimately took their lives in Benghazi, Libya in September of 2012. See Compl. [Dkt. # 1]

¶¶ 26–28, 44–47. Plaintiffs also allege that Secretary Clinton defamed them and placed them in a

false light when, as a candidate for the office of President of the United States, she disputed their

accounts of conversations that she had with them about the circumstances that led to attack in

Benghazi. Id. ¶¶ 33–42. Finally, plaintiffs allege that Secretary Clinton’s conduct – both as

Secretary of State and later on the campaign trail – intentionally and negligently caused them to

suffer emotional distress. Id. ¶¶ 50–56.

       The United States has moved to substitute itself as the defendant for any actions that

Secretary Clinton took as Secretary of State. In that capacity, it moves to dismiss the claims for

wrongful death (Count I) and negligence (Count IV) in their entirety, along with those portions of
the claims for intentional and negligent infliction of emotional distress (Counts V and VI,

respectively) that are premised on actions Secretary Clinton took as Secretary of State.

       The law allows the United States to substitute itself as the defendant where a lawsuit

challenges acts taken by a government official who was acting in the scope of his or her

employment at the time of the alleged torts. To resolve the question of whether Secretary Clinton

was acting in the scope of her employment, the relevant inquiry is not whether her use of the

private email server was lawful or unlawful. Instead, the only issue to be resolved is whether the

Secretary’s communication with State Department personnel concerning State Department

business through that means fell within the scope of Secretary Clinton’s employment. Because

the Court finds that Secretary Clinton was acting in the scope of her employment when she

transmitted the emails that are alleged to give rise to her liability, the motion to substitute will be

granted. And because plaintiffs failed to raise their claims with the State Department before

bringing suit as is legally required, the government’s motion to dismiss the counts against the

United States will be granted.

       In addition, Secretary Clinton has moved to dismiss the defamation and false light claims

(Counts II and III), as well as the intentional and negligent infliction of emotional distress claims

insofar as they are premised on actions she took after she left office (Count V and VI). Plaintiffs

allege that Secretary Clinton lied to them when she allegedly told them that it was a YouTube

video that prompted the attack on the consulate in Benghazi. See Compl. ¶ 24. They further claim

that when Secretary Clinton – then candidate Clinton – was subsequently asked about plaintiffs’

allegation that she had lied, she defamed plaintiffs or put them in a false light when she disputed

their account of their conversation with her. See id. ¶ 23. But because plaintiffs have not stated a




                                                  2
claim for defamation or false light, or for intentional infliction of emotional distress, Secretary

Clinton’s personal motion to dismiss will be granted as well.

        The untimely death of plaintiffs’ sons is tragic, and the Court does not mean to minimize

the unspeakable loss that plaintiffs have suffered in any way. But when one applies the appropriate

legal standards, it is clear that plaintiffs have not alleged sufficient facts to rebut the presumption

that Secretary Clinton was acting in her official capacity when she used her private email server

to communicate with State Department personnel about State Department business, and that they

have not stated claims that Secretary Clinton defamed them, put them in a false light, or

intentionally inflicted emotional distress. For those reasons, the case will be dismissed. Nothing

about this decision should be construed as making any determination or expressing any opinion

about the propriety of the use of the private email server or the content or accuracy of the

statements made by the Secretary to the family members or to anyone else in the days following

the Benghazi attack.

                                         BACKGROUND

        For purposes of this motion, the Court must assume the facts alleged by the plaintiffs to be

true.

        From 2009 to 2013, Secretary Clinton served as the United States Secretary of State.

Compl. ¶ 8. During her tenure – as the world has come to know – she “utilized a private e-mail

server to conduct official government business.” Id. ¶ 9. Plaintiffs allege that Secretary Clinton

used the private server to send and receive “thousands of e-mails regarding matters of national




                                                  3
security, including information that has been categorized as ‘top secret,’ ‘secret,’ and

‘confidential.’” Id.

       Plaintiffs specifically allege that Secretary Clinton used her private e-mail server to “send

and receive information about the location of Ambassador Christopher Stevens . . . and other

government operations in Benghazi, Libya. Compl. ¶ 15. 1 From there, they posit that the email

server was hacked by a number of foreign countries, that terrorists thereby obtained the e-mails,

and that the terrorists used them to “plan, orchestrate, and carry out the horrific and devastating




1       For purposes of this motion, the Court must accept the factual allegations set forth in the
complaint as true. But the recitation of those allegations in this opinion should not be viewed as a
finding that Secretary Clinton was in fact communicating about where Ambassador Stevens could
be found. In support of this allegation, the complaint cites a Breitbart article which contains a
number of emails. See Compl. at 2 n.1, citing Aaron Klein, Hillary Emails Betrayed Whereabouts
of Murdered Ambassador Chris Stevens, Breitbart (Mar. 1, 2016), http://www.breitbart.com/
national-security/2016/03/01/hillary-emails-betrayed-whereabouts-of-murdered-ambassador-
chris-stevens/. However, the emails – from March and April of 2011 – all predate Stevens’s
service as the Ambassador, which began in March 2012, see Nomination of J. Christopher Stevens,
https://www.congress.gov/nomination/112th-congress/1233, they discuss his plans in his role as
the U.S. envoy to the Libyan rebels, and none divulge his specific location in any event.
                                                 4
attack on the American diplomatic compound in Benghazi, Libya on September 11, 2012, resulting

in the death of four Americans, including Sean Smith and Tyrone Woods.” Id. ¶¶ 15–16. 2

       According to plaintiffs, on the day of the attack, and in the days that followed, Secretary

Clinton attempted to blame an anti-Muslim YouTube video for inciting the violence. Compl. ¶ 18.

In particular, on September 12, 2012, when Secretary Clinton gave public remarks about the attack,

she said: “Some have sought to justify this vicious behavior, along with the protest that took place

at our Embassy in Cairo yesterday, as a response to inflammatory material posted on the internet.”

Id. And the complaint states that, two days after the attack, when Secretary Clinton met with the

families of the four Americans who were killed, she “lied to Plaintiffs and told Plaintiffs that the

Benghazi attack was the result of the anti-Muslim YouTube video that had been posted online,”

and she promised the families that the “creator of the video would be arrested.” Id. ¶ 19.

According to the complaint, plaintiff Woods “contemporaneously recorded this September 14,

2012 interaction with [Secretary] Clinton by writing in his diary . . . ‘I gave Hillary a hug and




2        Plaintiffs allege that the private email server was hacked by state actors from Russia, Iran,
China, South Korea, and Germany, and they cite a news article to support that factual assertion.
Compl. ¶¶ 13 & n.6, citing Josh Gerstein & Rachel Bade, Clinton Server Faced Hacking from
China, South Korea, and Germany, Politico (Oct. 8, 2015), http://www.politico.com/
story/2015/10/hillary-clinton-email-server-hacked-china-south-korea-germany-214546. But the
article mentions only China, South Korea, and Germany, and more important, it states – in the first
sentence – that the hacking attempts from those three countries occurred “after [Clinton] stepped
down in 2013.” Meanwhile, plaintiffs point to nothing – not any of the emails that have been made
public or any Congressional reports or news accounts – to establish any of the other links in the
alleged chain of events, i.e., that “Islamic terrorists obtained the information sent and received by
[Secretary] Clinton . . . and used it to plan, orchestrate, and carry out the horrific and devastating
attack.” Compl. ¶ 16. So while the Court must accept the complaint on its face at this juncture,
there is nothing on the face of the complaint that reveals the evidentiary support for the conclusory
assertion that there was a causal connection between the Secretary’s use of the private email server
– even if it was ill-advised – and the tragic events in Benghazi.
                                                  5
shook her hand, and she said we are going to have the film maker arrested who was responsible

for the death of my son.’” Id. ¶ 20.

       The narrative in the complaint then jumps forward more than three years, and it recounts

various statements that Secretary Clinton made during the Presidential election season in late 2015

and early 2016. Secretary Clinton has long maintained that she never told plaintiffs that the

Benghazi attack was caused by the YouTube video; plaintiffs allege that when she advanced those

denials, Secretary Clinton lied about their September 2012 interaction and thereby defamed them.

       Paragraph 23 of the complaint recounts four specific instances of alleged defamation:

           x   December 6, 2015 interview with George Stephanopoulos of ABC:
               Stephanopoulos asked Clinton, “[d]id you tell them it was about the film?” Compl.
               ¶ 23(a). Secretary Clinton replied:
                      No. You know, look I understand the continuing grief at the loss
                      that parents experienced with the loss of these four brave
                      Americans. And I did testify, as you know, for 11 hours. And I
                      answered all of these questions. Now, I can’t – I can’t help it the
                      people think there has to be something else there. I said very clearly
                      there had been a terrorist group that had taken responsibility on
                      Facebook between the time that, I – you know, when I talked to my
                      daughter, that was the latest information; we were giving it
                      credibility. And then we learned the next day it wasn’t true. In fact,
                      they retracted it. This was a fast-moving series of events in the fog
                      of war and I think most Americans understand that.
               Id.

           x   December 30, 2015 meeting with the Conway Daily Sun Editorial Board: The
               complaint alleges that Conway Daily Sun columnist Tom McLaughlin brought up
               the ABC interview and asked: “Somebody is lying. Who is it?” Compl. ¶ 23(b).
               Secretary Clinton responded: “Not me, that’s all I can tell you.” Id.

           x   March 9, 2016, during the Democratic Presidential Debate. Secretary Clinton
               was asked about plaintiff Smith’s allegation that Secretary Clinton lied to her by
               blaming the Benghazi attack on the YouTube video. Compl. ¶ 23(c). Secretary
               Clinton responded:
                      I feel a great deal of sympathy for the families of the four brave
                      Americans that we lost at Benghazi, and I certainly can’t even


                                                6
                       imagine the grief that she has for losing her son, but she’s wrong.
                       She’s absolutely wrong.
               Id.

           x   July 31, 2016 interview with Chris Wallace of Fox News. In response to a
               question about “why [plaintiffs] would make . . . up” their claims, Secretary
               Clinton said:
                       Chris, my heart goes out to both of them. Losing a child under any
                       circumstances, especially in this case, two State Department
                       employees, extraordinary men both of them, two CIA contractors
                       gave their lives protecting our country, our values. I understand the
                       grief and the incredible sense of loss that can motivate that. As other
                       members of families who lost loved ones have said, that’s not what
                       they heard. I don’t hold any ill feeling for someone who in that
                       moment may not fully recall everything that was or wasn’t said.
               Compl. ¶ 23(d). 3

Plaintiffs make the conclusory assertion that Secretary Clinton “defamed [p]laintiffs by either

directly calling them liars, or by strongly implying that they are liars.” Compl. ¶ 23.

       Plaintiffs filed this six-count complaint on August 8, 2016. In Count I, plaintiffs bring a

claim for wrongful death, alleging that “[t]he deaths of Sean Smith and Tyrone Woods were

directly and proximately caused by the negligent and reckless actions of [Secretary] Clinton, who

used her private email server to send and receive secret, confidential, and classified government

information that compromised the location of Ambassador Christopher Stevens and thus the U.S.

Department of State . . . in Benghazi, Libya.” Compl. ¶ 26. In Count II, plaintiffs allege that the

four statements Secretary Clinton made during the campaign in 2015 and 2016 were defamatory,

id. ¶¶ 33–37, and in Count III, they allege that those four statements placed them in a false light.

Id. ¶¶ 39–42. In Count IV, plaintiffs allege that Secretary Clinton acted negligently in the handling



3      See also Compl. ¶ 23(d) n.14, citing Tommy Christopher, Chris Wallace Grills Hillary
Clinton About Benghazi Parents’ Claims She Blamed Video, Mediaite (July 31, 2016), http://
www.mediaite.com/tv/fox-news-chris-wallace-grills-hillary-clinton-about-benghazi-parents-
claims-she-blamed-video/.
                                                 7
of her private email server, and that her negligence directly and proximately caused the deaths of

Sean Smith and Tyrone Woods. Id. ¶¶ 44–48. In Count V, plaintiffs allege that Secretary Clinton

committed the tort of intentional infliction of emotional distress (1) when she “used her private

email server to send and receive confidential and classified government information,” and (2) in

defaming and holding plaintiffs in a false light during the campaign. Id. ¶¶ 50–52. And in Count

VI, plaintiffs allege that Secretary Clinton negligently inflicted emotional distress when she (1)

was “negligent and reckless” in her “handling of classified government information,” and (2) when

she defamed plaintiffs and held them in a false light. Id. ¶¶ 54–56. 4

       On October 21, 2016, the United States filed a motion pursuant to the Westfall Act, 28

U.S.C. § 2679, arguing that the United States should be substituted as a defendant for all counts

that arose out of Secretary Clinton’s actions as Secretary of State.        U.S. Mot. for Partial

Substitution [Dkt. # 23] (“U.S. Mot. to Substitute”) at 3–4. Accordingly, the United States has

requested that Counts I and IV be deemed to be against the United States in their entirety, and that

Counts V and VI should be deemed to be against the United States insofar as they allege

wrongdoing arising out of events that occurred when Secretary Clinton served as an officer of the

United States. Id. Based on that substitution, the United States filed a motion to dismiss Counts I

and IV in their entirety, and to dismiss Counts V and VI in part, for lack of subject matter

jurisdiction. United States Mot. to Dismiss [Dkt. # 24] (“U.S. MTD”) at 1–2. The government




4      Plaintiffs have since withdrawn the negligent infliction of emotional distress count. See
Pl.’s Mem. of Law in Opp. to Def. Clinton’s Mot. [Dkt. # 34] at 3 n.2.
                                                 8
also moved to dismiss for lack of personal jurisdiction due to a failure to properly serve Secretary

Clinton or the United States. Id. at 3–4.

       On November 14, 2016, Secretary Clinton filed a separate motion to dismiss plaintiffs’

claims based on her conduct as a Presidential candidate for defamation, false light, intentional

infliction of emotional distress, and negligent infliction of emotional distress, for failure to state a

claim under Federal Rule of Civil Procedure 12(b)(6). Def. Hillary Rodham Clinton’s Mot. to

Dismiss [Dkt. # 28] (“Clinton MTD”).

       Plaintiffs opposed the motions filed by the United States, Pls.’ Opp. to the U.S. Mot. to

Substitute & U.S. MTD [Dkt. # 30] (“Pls.’ Opp. to U.S. Mots.”), and they opposed Secretary

Clinton’s motion to dismiss as well. Pl.’s Mem. of Law in Opp. to Clinton MTD [Dkt. # 34] (“Pls.’

Opp. to Clinton MTD”). The United States replied in support of its motions, Reply Mem. in

Further Supp. of U.S. Mot. to Substitute [Dkt. # 32] (“U.S. Substitution Reply”); U.S. Reply Mem.

in Further Supp. of U.S. MTD [Dkt. # 33] (“U.S. MTD Reply”), and Secretary Clinton replied in

support of her motion to dismiss as well. Def. Clinton’s Reply in Supp. of Clinton MTD [Dkt.

# 35] (“Clinton MTD Reply”).

                                    STANDARD OF REVIEW

       In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must

“treat the complaint’s factual allegations as true . . . and must grant plaintiff ‘the benefit of all

inferences that can be derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216

F.3d 1111, 1113 (D.C. Cir. 2000) (internal citations omitted), quoting Schuler v. United States,

617 F.2d 605, 608 (D.C. Cir. 1979); see also Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139

(D.C. Cir. 2011). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those




                                                   9
inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff’s

legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

I.     Subject Matter Jurisdiction
       Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a

preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan

v. Sibley Int’l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited

jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. EPA, 363

F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with an

examination of our jurisdiction.”). “[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as

well as a statutory requirement . . . no action of the parties can confer subject-matter jurisdiction

upon a federal court.’” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003),

quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).

       When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a

motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the complaint.”

Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S.

64 (1987). Rather, “a court may consider such materials outside the pleadings as it deems

appropriate to resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v.

D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat’l

Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharm., Inc. v. FDA,

402 F.3d 1249, 1253 (D.C. Cir. 2005).

II.    Service of Process
       Under Rule 12(b)(5), plaintiffs bears the burden to establish that they have properly

effectuated service. Light v. Wolf, 816 F.2d 746, 751 (D.C. Cir. 1987). When a defendant

                                                 10
challenges the sufficiency of service, the plaintiff “must demonstrate that the procedure employed

satisfied the requirements of the relevant portions of Rule 4 and any other applicable provision of

law.” Id. (citations omitted). If a plaintiff does not meet his burden to show proper service of

process, the Court may dismiss the complaint without prejudice for ineffective service of process.

See Fed. R. Civ. P. 12(b)(5); Simpkins v. D.C. Government, 108 F.3d 366, 368–69 (D.C. Cir. 1997).

III.    Failure to State a Claim
        “To survive a [Rule 12(b)(6)] 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 claim

is facially plausible when the pleaded factual content “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. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more

than a sheer possibility that a defendant has acted unlawfully.” Id., quoting Twombly, 550 U.S. at

556. A pleading must offer more than “labels and conclusions” or a “formulaic recitation of the

elements of a cause of action,” id., quoting Twombly, 550 U.S. at 555, and “[t]hreadbare recitals

of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

Id., citing Twombly, 550 U.S. at 555.

        When considering a motion to dismiss under Rule 12(b)(6), the Court is bound to construe

a complaint liberally in the plaintiff’s favor, and it should grant the plaintiff “the benefit of all

inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d

1271, 1276 (D.C. Cir. 1994). In ruling upon a motion to dismiss for failure to state a claim, a court

may ordinarily consider only “the facts alleged in the complaint, documents attached as exhibits

or incorporated by reference in the complaint, and matters about which the Court may take judicial



                                                   11
notice.” Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002), citing EEOC v. St.

Francis Xavier Parochial Sch., 117 F.3d 621, 624–25 (D.C. Cir. 1997).

                                           ANALYSIS

I.     The United States will be substituted as the defendant pursuant to the Westfall Act.
       The Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C.

§ 2679, commonly referred to as the Westfall Act, “accords federal employees absolute immunity

from common-law tort claims arising out of acts they undertake in the course of their official

duties.” Osborn v. Haley, 549 U.S. 225, 229 (2007). The purpose of the Westfall Act “is to relieve

covered employees from the cost and effort of defending [a] lawsuit, and to place those burdens

on the Government’s shoulders.” Wuterich v. Murtha, 562 F.3d 375, 380 (D.C. Cir. 2009), quoting

Osborn, 549 U.S. at 252.

       “When a federal employee is sued for wrongful or negligent conduct,” the Attorney

General or his delegate may certify that the employee “was acting within the scope of his office or

employment at the time of the incident out of which the claim arose.” Osborn, 549 U.S. at 229–

30, quoting 28 U.S.C. § 2679(d)(1)–(2). “Upon the Attorney General’s certification, the employee

is dismissed from the action, and the United States is substituted as the defendant in place of the

employee.” Id. at 230. “Thereafter, the suit is governed by the Federal Tort Claims Act (‘FTCA’)

and is subject to all of the FTCA’s exceptions for actions in which the Government has not waived

sovereign immunity.” Wuterich, 562 F.3d at 380, citing Osborn, 549 U.S. at 230. Unless one of

the exceptions to the waiver of sovereign immunity set forth in the FTCA applies, the Westfall Act

certification “converts the tort suit into a FTCA action over which the federal court lacks subject

matter jurisdiction and has the effect of altogether barring plaintiff’s case.” Id.; see also Majano

v. United States, 469 F.3d 138, 139 (D.C. Cir. 2006).



                                                12
       But a district court should not treat a Westfall Act certification as conclusive evidence, and

a plaintiff may challenge “the government’s scope of employment determination.” Stokes v.

Cross, 327 F.3d 1210, 1213 (D.C. Cir. 2003), citing Gutierrez de Martinez v. Lamango, 515 U.S.

417, 420 (1995). If a plaintiff mounts that challenge, the certification “constitute[s] prima facie

evidence that the employee was acting within the scope of his employment,” Council on Am.

Islamic Relations v. Ballenger, 444 F.3d 659, 662 (D.C. Cir. 2006) (per curiam), and the plaintiff

must rebut that presumption by alleging “sufficient facts that, taken as true, would establish that

the defendants’ actions exceeded the scope of their employment.” Stokes, 327 F.3d at 1215. The

court should adhere to the teachings of Iqbal and Twombly in determining whether the plaintiff

has met his or her burden to rebut the presumption. Jacobs v. Vrobel, 724 F.3d 217, 221 (D.C.

Cir. 2013). Only if the plaintiff satisfies that burden will he or she, “if necessary, attain ‘limited

discovery’ to resolve any factual disputes over jurisdiction.” Id. at 220–21, quoting Wuterich, 562

F.3d at 381.

       Here, defendants have filed a Westfall Act certification from James G. Touhey, Jr., the

Director of the Torts Branch, Civil Division, Department of Justice. Certification, Ex. A to U.S.

Mot. to Substitute [Dkt. # 23-1]. Touhey certifies that Secretary Clinton “was acting within the

scope of her office as the Secretary of State of the United States at the time of the alleged conduct

that purportedly occurred while she was in office, i.e., from January 21, 2009 to February 1, 2013.”

Id.; see also 28 C.F.R. § 15.4(a) (delegating the authority to make Westfall Act certifications to

“any Director of the Torts Branch, Civil Division, Department of Justice”). Based on that

certification, defendant has moved to substitute the United States as the proper defendant for

plaintiffs’ claims in Counts I and IV, and as the proper defendant in counts V and VI to the extent




                                                 13
that those counts challenge Secretary Clinton’s actions while she was Secretary of State. U.S.

Mot. to Substitute at 3–4.

       To rebut the presumption created by the Westfall Act certification, plaintiffs bear the

burden of pleading sufficient facts that would establish that defendant’s actions exceeded the scope

of her employment. Stokes, 327 F.3d at 1215. Because plaintiffs have failed to allege sufficient

facts to rebut the presumption, the United States will be substituted as the defendant with respect

to the counts that relate to Secretary Clinton’s conduct as Secretary of State.

       “In determining whether an employee acted within the scope of his employment, [a court

must] consider the substantive law of the jurisdiction where the employment relationship

exists – here, the law of the District of Columbia.” Jacobs, 724 F.3d at 221, citing Majano, 469

F.3d at 141. D.C. courts follow the test set forth in the Second Restatement of Agency, which

explains that conduct of a servant is within the scope of employment if: “(a) it is of the kind he is

employed to perform; (b) it occurs substantially within the authorized time and space limits;

[and] (c) it is actuated, at least in part, by a purpose to serve the master.” Id., citing Restatement

(Second) of Agency § 228.        “The test is ‘objective’ and is ‘based on all the facts and

circumstances,’” id., quoting Weinberg v. Johnson, 518 A.2d 985, 991 (D.C. 1986), and it has been

“broadly interpreted.”    Id.   Accordingly, under District of Columbia law, “[t]he scope-of-

employment test often is akin to asking whether the defendant merely was on duty or on the job

when committing the alleged tort.” Id., quoting Harbury v. Hayden, 522 F.3d 413, 422 n.4 (D.C.

Cir. 2008).




                                                 14
       Plaintiffs challenge the certification by asserting that their “claims are being brought

against [Secretary] Clinton in her individual capacity and not her capacity as former Secretary of

State of the United States.” Pls.’ Opp. to U.S. Mots. at 1. They argue that defendant was acting

outside her duties as Secretary of State because she: (1) used a private email server to send and

receive emails, (2) retained State Department records after departing office, and (3) failed to

preserve certain emails that were sent and received via the private email server. Pls.’ Opp. to U.S.

Mots. at 2–3. 5 And they posit that “using a private email server to send and receive classified

information, including information that directly led to the Benghazi attack[,] is not the kind

[Secretary] Clinton was employed to perform.” Pls.’ Opp. to U.S. Mots. at 4, citing Compl. ¶¶ 9,

15. But the Westfall Act determination is not based on whether the government employee’s actions

can be characterized as wrongful or unlawful; the question is whether she was acting within the

scope of the position occupied at the time.

       Courts have emphasized that “[t]o qualify as conduct of the kind [an employee] was

employed to perform, the defendant’s actions must have either been of the same general nature as

that authorized or incidental to the conduct authorized.” Ballenger, 444 F.3d at 664 (emphasis in

original), quoting Haddon v. United States, 68 F.3d 1420, 1424 (D.C. Cir. 1995). In Ballenger,

the Court of Appeals upheld the district court’s substitution of the United States as a defendant in

a case in which the plaintiff brought an action for defamation and slander against a U.S.

Congressman for certain statements he made on the telephone to a reporter. Id. at 661–62. The

court reasoned that “[t]he appropriate question . . . is whether th[e] telephone conversation” in

which the defendant allegedly made a defamatory statement about the plaintiff “was the kind of



5       Plaintiffs do not explain how Secretary Clinton’s recordkeeping practices after she left
office has any bearing on whether she was acting in the scope of her employment at the time of
the Benghazi attack.
                                                15
conduct [the defendant] was employed to perform” – not whether the allegedly defamatory

sentence itself was within the scope of the defendant’s employment. Id. at 664–65. The court

concluded that the congressman’s communication with the press fell within the scope of his duties,

which require him to have a relationship with the public. Id.

       Similarly, in Jacobs, the Court of Appeals upheld the substitution of the United States as a

defendant for a manager at the General Services Administration who allegedly defamed the

plaintiff when he received a call for an employment reference from the plaintiff’s prospective

employer. 724 F.3d at 222. The Court of Appeals, relying on Ballenger, focused on the type of

act – “responding to a prospective employer’s request for a reference” – and concluded that it was

“plainly ‘the type of conduct [the defendant] was employed to perform’” as a supervisor. Id.,

quoting Ballenger, 444 F.3d at 664.

       Ballenger and Jacobs are consistent with other circuit precedent on whether senior

Executive Branch officials were acting within the scope of their employment. See Wilson v. Libby,

535 F.3d 697, 711–12 (D.C. Cir. 2008) (holding that the defendants – Vice President Cheney,

former Chief of Staff I. Lewis Libby, former Senior Advisor to the President Karl C. Rove, and

the former Deputy Secretary of State Richard L. Armitage – acted within the scope of their

employment when they made comments to the press which revealed a covert agent’s identity,

because “[i]t can hardly be disputed that such discussions were of the type that the defendants were

employed to perform”); Rasul v. Myers, 512 F.3d 644, 656–60 (D.C. Cir. 2008) (holding that the

alleged “authorization, implementation and supervision of torture” was within the scope of

employment of military officers who interrogated defendants at the United States Naval Base at

Guantanamo Bay, Cuba, because “the detention and interrogation of suspected enemy combatants

[was] a central part of the [employees’] duties as military officers charged with winning the war



                                                16
on terror,” even notwithstanding “allegations of serious criminality”), vacated and remanded, 555

U.S. 1083 (2008), reinstated in relevant part, 563 F.3d 527 (D.C. Cir. 2009).

       Here, the complaint alleges that Clinton “served as U.S. Secretary of State from 2009 until

2013” and that “[d]uring her tenure as Secretary of State,” she “utilized a private e-mail server to

conduct official government business,” which ultimately, plaintiffs allege, led to the death of their

sons. Compl. ¶¶ 8, 9, 17. And the “law requires that we focus on the type of act . . . that allegedly

gave rise to the tort, not the wrongful character of that act.” Jacobs, 724 F.3d at 221. So the

question is not whether Secretary Clinton is being sued in her individual or official capacity, and

it also does not matter whether Secretary Clinton used a private email server lawfully or

unlawfully.     Instead, the relevant inquiry is whether Secretary Clinton’s electronic

communications with State Department personnel about official business during her tenure were

within the scope of her employment as the head of the State Department.

       The Court finds that Secretary Clinton was acting within the scope of her employment at

the relevant time because her actions – communicating with other State Department personnel and

advisors about the official business of the department – fall squarely within the scope of her duty

to run the Department and conduct the foreign affairs of the nation as Secretary of State. So,

pursuant to the Westfall Act, the Court will substitute the United States as the sole defendant in

Counts I and IV, and as the defendant in Counts V and VI to the extent that those counts relate to

actions taken during Secretary Clinton’s tenure as Secretary of State. The claims of wrongful

death, negligence, intentional infliction of emotional distress, and negligent infliction of emotional

distress against Secretary Clinton in her individual capacity will be dismissed.




                                                 17
II.     The Court lacks subject matter jurisdiction over plaintiffs’ tort claims because
        plaintiffs have not exhausted their administrative remedies.
        After a Westfall Act substitution in a tort case, “the suit is governed by the Federal Tort

Claims Act (‘FTCA’) and is subject to all of the FTCA’s exceptions for actions in which the

[g]overnment has not waived sovereign immunity.” Wuterich, 562 F.3d at 380, citing Osborn,

549 U.S. at 230. The FTCA bars plaintiffs from bringing certain claims against the government,

see 28 U.S.C. § 2680, and it sets requirements for administrative exhaustion of claims and timely

filing of administrative claims. 28 U.S.C. § 2401(b). Here, the government has not waived its

sovereign immunity, plaintiffs’ tort claims are specifically excluded under the FTCA, and

plaintiffs have failed to exhaust their administrative remedies. Therefore, the Court lacks subject

matter jurisdiction over plaintiffs’ tort claims.

        Under the FTCA:

                An action shall not be instituted upon a claim against the United States for
                money damages for injury or loss of property or personal injury or death
                caused by the negligent or wrongful act or omission of any employee of the
                [g]overnment while acting within the scope of his office or employment,
                unless the claimant shall have first presented the claim to the appropriate
                Federal agency and his claim shall have been finally denied by the agency.
28 U.S.C. § 2675(a). 6 Where a plaintiff does not exhaust administrative remedies, the FTCA bars

his tort claims. McNeil v. United States, 508 U.S. 106, 113 (1993) (affirming dismissal of

plaintiff’s FTCA claim for lack of subject matter jurisdiction because “[t]he FTCA bars claimants

from bringing suit in federal court until they have exhausted their administrative remedies”).

        Plaintiffs concede that they failed to exhaust administrative remedies. Pls.’ Opp. to U.S.

Mots. at 7–8. But they argue that their failure to exhaust should be excused because they contend




6      There are a number of exceptions to the requirements of the FTCA, see 28 U.S.C. § 2680,
but none are applicable here.
                                                    18
that exhaustion would be futile. Id. Plaintiffs’ argument fails, because the FTCA’s exhaustion

requirement is jurisdictional and cannot be excused.

       An administrative exhaustion requirement can be jurisdictional or it can be non-

jurisdictional. Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir. 2004). Non-

jurisdictional exhaustion refers to “a judicially created doctrine requiring parties who seek to

challenge agency action to exhaust available administrative remedies before bringing their case to

court.” Id. A court may excuse a lack of non-jurisdictional exhaustion for a number of reasons,

including where there are no facts in dispute, where the disputed issue is outside of the agency’s

expertise, where the agency may not be able to redress the grievance, where exhaustion would

prejudice the litigants, or where exhaustion would be futile because of agency bias. Id., citing

McKart v. United States, 395 U.S. 185, 197–98, 198 n.15 (1969); McCarthy v. Madigan, 503 U.S.

140, 146–49 (1992).

       There is a presumption that exhaustion is non-jurisdictional “unless ‘Congress states in

clear, unequivocal terms that the judiciary is barred from hearing an action until the administrative

agency has come to a decision.’” Id. at 1248, quoting I.A.M. Nat’l Pension Fund Benefit Plan C

v. Stockton Tri Indus., 727 F.2d 1204, 1208 (D.C. Cir. 1984). But where “Congress requires resort

to the administrative process as a predicate to judicial review . . . a court cannot excuse it.” Id.

The D.C. Circuit has “treated the FTCA’s requirement of filing an administrative complaint with

the appropriate agency prior to instituting an action as jurisdictional.” Simpkins, 108 F.3d at 371.

Here, because plaintiffs concede that they failed to exhaust administrative remedies, the Court has




                                                 19
no power to hear the claims against the United States at all. 7 Given this lack of subject matter

jurisdiction, Counts I and IV will be dismissed without prejudice in their entirety under Rule

12(b)(1), and Counts V and VI will be similarly dismissed without prejudice to the extent that they

allege intentional or negligent infliction of emotional distress due to Secretary Clinton’s email

practices. 8

        Because the counts against the United States will be dismissed for lack of subject matter

jurisdiction, the Court need not consider whether service on the United States was proper. 9

III.    Plaintiffs’ defamation and false light claims do not state a plausible claim for relief.
        In Count II, plaintiffs allege that Secretary Clinton defamed them when she made the

statements set forth in paragraph 23 of the complaint and denied telling plaintiffs that the Benghazi

Attack was caused by an anti-Muslim YouTube video. According to plaintiffs, with these



7        In a prior unrelated opinion in an FTCA case, the Court observed that the “only recognized
exceptions to the exhaustion requirement are where administrative remedies are inadequate or
where irreparable injury would result absent immediate judicial review.” Bannum, Inc. v. Samuels,
No. 15-cv-1233, 2016 WL 6459549, at *8 (D.D.C. Oct. 28, 2016), citing Randolph-Sheppard
Vendors of Am. v. Weinberger, 795 F.2d 90, 108 (D.C. Cir. 1986). However, Randolph-Sheppard
was a case that involved non-jurisdictional exhaustion, and it does not stand for the proposition
that failure to exhaust an FTCA claim can be excused.

8       The D.C. Circuit has explained that a dismissal for failure to exhaust administrative
remedies under the FTCA should be without prejudice, so that a plaintiff can exhaust those claims
and refile the lawsuit. Simpkins, 108 F.3d at 371.

9        The Court notes, though, that plaintiffs admit that they failed to properly effect service on
the United States because they failed to strictly comply with Federal Rule of Civil Procedure 4(i).
See Pls.’ Opp. to U.S. Mots. at 8. “A federal court may assert personal jurisdiction over a defendant
only if ‘the procedural requirements of effective service of process are satisfied.’” Freedom
Watch, Inc. v. OPEC, 766 F.3d 74, 78 (D.C. Cir. 2014), quoting Mann v. Castiel, 681 F.3d 368,
372 (D.C. Cir. 2012). While courts sometimes consider actual notice in cases where service was
technically improper but where a plaintiff is otherwise “in substantial compliance with the formal
requirements of the Federal Rules,” id. at 81, quoting Prewitt Enters., Inc. v. OPEC, 353 F.3d 916,
924 n.14 (11th Cir. 2003), the Court need not decide whether actual notice is sufficient in this case,
in light of its dismissal of the United States on subject matter jurisdiction grounds. But plaintiffs
should take care to comply fully with Rule 4 if the matter is re-filed after the claims are exhausted.
                                                 20
statements, Secretary Clinton falsely accused them of lying. Compl. ¶ 33. In Count III, they allege

that Secretary Clinton’s statements “placed [them] in a false light.” Id. ¶ 41.

       A.      Legal standard
       To state a claim for defamation under District of Columbia law, a plaintiff must allege “(1)

that he was the subject of a false and defamatory statement; (2) that the statement was published

to a third party; (3) that publishing the statement was at least negligent; and (4) that the plaintiff

suffered either actual or legal harm.” Farah v. Esquire Magazine, 736 F.3d 528, 533–34 (D.C.

Cir. 2013). Similarly, “[a] ‘false light claim . . . requires a showing of: (1) publicity; (2) about a

false statement, representation or imputation; (3) understood to be of and concerning the plaintiff;

and (4) which places the plaintiff in a false light that would be offensive to a reasonable person.’”

Doe v. Bernabei & Wachtel, PLLC, 116 A.3d 1262, 1267 (D.C. 2015), quoting Bean v. Gutierrez,

980 A.2d 1090, 1094 (D.C. 2009). Because these two torts share similar elements, they are often

“analyzed in the same manner,” especially “where the plaintiff rests both his defamation and false

light claims on the same allegations.” Blodgett v. Univ. Club, 930 A.2d 210, 222–23 (D.C. 2007).

While the elements of false light are similar to the elements of defamation, the remedies are

distinct. “[A] defamation tort redresses damage to reputation while a false light privacy tort

redresses mental distress from having been exposed to public view.” White v. Fraternal Order of

Police, 909 F.2d 512, 518 (D.C. Cir. 1990).

       “When confronted with a motion to dismiss [a defamation claim], a court must evaluate

‘[w]hether a statement is capable of defamatory meaning,’” which is a threshold “question of law.”

Jankovic v. Int’l Crisis Grp., 494 F.3d 1080, 1091 (D.C. Cir. 2007), quoting Weyrich v. New

Republic, Inc., 235 F.3d 617, 627 (D.C. Cir. 2001). A court must also determine the threshold

question of law of whether the statement is false. White, 909 F.2d at 520 (“Defamatory meaning

and falsity are distinct elements of the tort of defamation and are considered separately.”). To

                                                 21
evaluate whether a statement is capable of defamatory meaning, courts use a two-part framework

that considers “‘(a) whether a communication is capable of bearing a particular meaning, and (b)

whether that meaning is defamatory.’ The jury then determines whether the communication was

in fact so understood by its recipient.” Moldea v. N.Y. Times Co., 15 F.3d 1137, 1142 (D.C. Cir.

1994), quoting Restatement (Second) of Torts § 614 (1977), modified on reh’g on other grounds,

22 F.3d 310 (D.C. Cir. 1994). Because the Court finds no defamatory meaning, it will not

separately assess whether the statements were provably false.

       B.       Plaintiffs have failed to plausibly allege that Secretary Clinton made
                statements capable of a defamatory meaning, so the defamation claims fail as
                a matter of law.
       Plaintiffs allege that Secretary Clinton defamed them when she publicly disputed plaintiffs’

report that the Secretary of State had told them in 2012 that the “Benghazi Attack was caused by

an anti-Muslim YouTube video.” Compl. ¶ 33. They state that the defendant defamed them “by

either directly calling them liars, or by strongly implying that they are liars.” Id. ¶ 23. But in

ruling on a motion to dismiss, the Court is only bound by plaintiff’s factual assertions, not their

conclusions or characterizations of the facts. Browning, 292 F.3d at 242.

       Plaintiffs specifically allege that the following statements were defamatory:

            x   In response to a question, “Did you tell them it was about the film,” Secretary
                Clinton said, “No . . . I said very clearly there had been a terrorist group, that had
                taken responsibility on Facebook . . . And then we learned the next day it wasn’t
                true. In fact, they retracted it. This was a fast-moving series of events in the fog of
                war and I think most Americans understand that.” Compl. ¶ 23(a).
This statement contradicts plaintiff’s account but it does not state or suggest that they are lying.

            x   In light of plaintiffs’ allegations, Secretary Clinton was asked, “Somebody is lying.
                Who is it?” She responded, “Not me, that’s all I can tell you.” Id. ¶ 23(b).
Here, it was the reporter who sensationalized the dispute by positing that someone was lying, and

the Secretary simply denied that she was.


                                                  22
           x   When asked about plaintiff Smith’s allegations, Secretary Clinton said, “I feel a
               great deal of sympathy for the families of the four brave Americans that we lost at
               Benghazi, and I certainly can’t even imagine the grief that she has for losing her
               son, but she’s wrong. She’s absolutely wrong.” Id. ¶ 23(c).
This was a firm denial of plaintiff Smith’s accusation but again, it does not state or suggest that

plaintiff Smith was intentionally lying or impugn her character in any way.

           x   In response to a question about the plaintiffs, Secretary Clinton said “As other
               members of families who lost loved ones have said, that’s not what they heard. I
               don’t hold any ill feeling for someone who in that moment may not fully recall
               everything that was or wasn’t said.” Id. ¶ 23(d).
Here, the Secretary bolstered her own account of events and offered a reason for why plaintiffs’

version differed, it was not that the family members were lying.

       “[T]he defamatory meaning inquiry focuses only on whether a reasonable reader could

understand a statement as tending to injure a plaintiff’s reputation.” Moldea, 15 F.3d at 1142.

Ultimately, “[i]t is only when the court can say that the publication is not reasonably capable of

any defamatory meaning and cannot be reasonably understood in any defamatory sense that it can

rule as a matter of law, that it was not libelous.” White, 909 F.2d at 518, quoting Levy v. Am.

Mutual Ins. Co., 196 A.2d 475, 476 (D.C. 1964).

       Here, plaintiffs do not point to any statement in which the Secretary directly accused them

of lying, so their claim is based upon a claim that such an accusation was implied. In a case

involving defamation by implication – where defamation is alleged based “not from what is

literally stated, but from what is implied . . . , courts must be vigilant not to allow an implied

defamatory meaning to be manufactured from words not reasonably capable of sustaining such

meaning.” White, 909 F.2d at 518–19. As the D.C. Circuit held in White:

               [Where] a communication, viewed in its entire context, merely conveys
               materially true facts from which a defamatory inference can reasonably be
               drawn, the libel is not established. But if the communication, by the
               particular manner or language in which the true facts are conveyed, supplies

                                                23
               additional, affirmative evidence suggesting that the defendant intends or
               endorses the defamatory inference, the communication will be deemed
               capable of bearing that meaning.
Id. at 520.

        Under District of Columbia law, an “allegedly defamatory remark must be more than

unpleasant or offensive; the language must make the plaintiff appear ‘odious, infamous, or

ridiculous.’” Jankovic, 494 F.3d at 1091, quoting Howard Univ. v. Best, 484 A.2d 958, 989 (D.C.

1984). 10 Applying that test, the Court concludes that the statements in question are not capable of

a defamatory meaning.

        Secretary Clinton did not refer to plaintiffs as liars. While interviewers repeatedly pressed

her to answer the question, “who lied,” only once did she answer the question directly, and even

then, her comments focused solely on her own conduct, not the plaintiffs’. See Compl. ¶ 23(b)

(“Not me, that’s all I can tell you.”). And in each of the other responses catalogued in the

complaint, Secretary Clinton expressed empathy and regret. Id. ¶¶ 23(a) (“You know, look I

understand the continuing grief at the loss that parents experienced with the loss of these four brave

Americans”); id. ¶ 23(c) (responding to a question about plaintiff Smith’s allegations, “I feel a

great deal of sympathy for the families of the four brave Americans that we lost at Benghazi, and

I certainly can’t even imagine the grief that she has for losing her son”); id. ¶ 23(d) (“Chris, my

heart goes out to both of them. Losing a child under any circumstances . . . I understand the grief

and the incredible sense of loss that can motivate that.”).




10      Secretary Clinton argued in her motion to dismiss that at least some of the statements at
issue did not make plaintiffs appear to be “odious, infamous or ridiculous.” Clinton MTD at 10.
Other than noting that defendant’s contention is “wrong,” Pls.’ Opp. to Clinton MTD at 6, plaintiffs
do not respond to the argument, so they may have conceded it. LCvR 7(b); see also Cohen v. Bd.
of Trs. of Univ. of D.C., 819 F.3d 476, 480 (D.C. Cir. 2016).
                                                 24
       While Secretary Clinton certainly maintained that the plaintiffs were “wrong,” and she

noted that others who heard the same exchange supported her version, those comments do not

begin to rise to the level of the statements found to be actionable in Jankovic. In that case, the

D.C. Circuit found a statement defamatory because it “could lead a reasonable reader to conclude”

that the plaintiff was “actively in alliance” with an international leader who had committed “war

crimes.” Jankovic, 494 F.3d at 1091. Plaintiffs may find the candidate’s statements in her own

defense to be “unpleasant or offensive,” but Secretary Clinton did not portray plaintiffs as “odious,

infamous, or ridiculous.” See id., quoting Best, 484 A.2d at 989. To the contrary, the statements

portray plaintiffs as normal parents, grieving over the tragic loss of their loved ones.

       So Count II will be dismissed on the basis that plaintiffs have not plausibly alleged that

Secretary Clinton made defamatory statements about them.

       C.      Plaintiffs have not alleged that the statements were defamatory as a matter of
               law, nor have they alleged special harm.
       Even if Secretary Clinton had uttered statements that, by implication, could give rise to a

defamatory meaning, plaintiffs have not alleged that they suffered harm as a result, and Count II

could be dismissed on that ground as well. A claim for defamation requires either a statement that

is “actionable as a matter of law” regardless of whether it caused actual harm, or a showing that

the “publication caused the plaintiff special harm.” Competitive Enter. Inst. v. Mann, 150 A.3d

1213, 1240 (D.C. 2016), quoting Oparaugo v. Watts, 884 A.2d 63, 76 (D.C. 2005). A statement

is actionable as a matter of law when it “tend[s] to injure a person’s reputation,” such as when a

speaker “imput[es] to a person a criminal offense; a loathsome disease; matter affecting adversely

a person’s fitness for trade, business, or profession; or serious sexual misconduct.” Carey v.

Piphus, 435 U.S. 247, 262 n.18 (1978); see also Franklin v. Pepco Holdings, Inc., 875 F. Supp.

2d 66, 75 (D.D.C. 2012) (“A statement is defamatory as a matter of law . . . if it is so likely to


                                                 25
cause degrading injury to the subject’s reputation that proof of that harm is not required to recover

compensation.”), citing Carey, 434 U.S. at 262; Farnum v. Colbert, 293 A.2d 279, 282 (D.C. 1972)

(a court can overlook an absence of facts related to damages if the slanderous words “inherently

tend to damage a person’s reputation”), citing Restatement of Torts § 569 (1938).

       Plaintiffs allege that Secretary Clinton’s suggestion that they lied has caused them to suffer

“injury to reputation,” Compl. ¶ 37, but the alleged instances of defamation in this case do not

satisfy the legal test for statements that are inherently actionable as a matter of law. Plaintiffs

maintain in response to the motion to dismiss that the statements are actionable per se because

they “clearly adversely affect [p]laintiffs’ ability to be employed.” Pls.’ Opp. to Clinton MTD at

13. But that is not clear at all, and plaintiffs’ bald assertion is not sufficient to liken Secretary

Clinton’s statements to the sorts of utterances that courts consider to be defamatory per se. There

are no facts alleged that would support an inference that the statements by Secretary Clinton, even

if they had implied or suggested that the plaintiffs had not been truthful about this one very specific,

highly personal matter, would have any impact on the plaintiffs’ ability to secure or maintain

employment; indeed, the complaint makes no mention of whether the plaintiffs are engaged in any

profession at all, or if they are seeking work. And the statements do not rise to the level of a

criminal accusation or a public charge of sexual misconduct.

       In the absence of a published statement that is defamatory per se, plaintiffs were bound to

allege actual or pecuniary harm. Again, in opposition to the motion, plaintiffs point to a purely

conclusory allegation. Pls.’ Opp. to Clinton MTD at 13 (“As a direct and proximate result of

[Secretary] Clinton’s statements, [p]laintiffs have suffered pecuniary damage . . . .”), quoting

Compl. ¶ 37. But plaintiffs must offer more than labels and conclusions to state a claim, see Iqbal,

556 U.S. at 668, quoting Twombly, 550 U.S. at 555, and this is insufficient. See Xereas v. Heiss,



                                                  26
933 F. Supp. 2d 1, 19 (D.D.C. 2013) (holding that the plaintiff in a defamation case “must allege

some specific harm and the actual pecuniary loss arising from that harm”), citing Franklin, 875 F.

Supp. 2d at 75 (granting a motion to dismiss a defamation claim where a plaintiff alleged harm

stemming from the “risk [of] having her credit suffer,” because the plaintiff did “not say that this

harm has actually occurred, or that she has sustained any pecuniary loss as a result.”).

       Because plaintiffs have not adequately pled that they suffered harm, the defamation count

could be dismissed on that independent basis as well. 11

       D.      Plaintiffs’ false light claim fails to state a claim for the same reasons.
       In Count III, plaintiffs allege that the allegedly defamatory statements set forth in paragraph

23 of the complaint “placed Plaintiffs in a false light that would be offensive to a reasonable

person.” Compl. ¶¶ 39–42. Because plaintiffs rest “both [their] defamation and false light claims

on the same allegations . . . the claims will be analyzed in the same manner.” Blodgett, 930 A.2d

at 222–23. The Court finds that the statements at issue, which did not portray plaintiffs as “odious,

infamous, or ridiculous,” Jankovic, 494 F.3d at 1091, quoting Best, 484 A.2d at 989, would not

be highly offensive to a reasonable person. See Weyrich, 235 F.3d at 628 (recognizing that the

“highly offensive” and “odious, infamous, and ridiculous” inquiries are “similar,” but noting that

the two tests “may sometimes produce different results”), citing Restatement (Second) of Torts

§ 652E cmt b. So Count III will be dismissed for failure to state a claim.

IV.    Plaintiffs have not stated a claim for intentional infliction of emotional distress caused
       by the allegedly defamatory statements.
       In Count V, plaintiffs allege that Secretary Clinton’s actions in using the private email

server, and in “defaming and holding [them] in a false light . . . on information and belief, directly



11     In light of the Court’s findings on the lack of any defamatory meaning or special harm, the
Court need not address the question of whether the statements are provably false or whether they
were made without privilege. See Clinton MTD at 11–15.
                                                 27
caused [p]laintiffs severe emotional distress.” Compl. ¶¶ 50–52. “The elements of [the tort of

intentional infliction of emotional distress] are ‘(1) extreme and outrageous conduct on the part of

the defendant which (2) intentionally or recklessly (3) causes the plaintiff severe emotional

distress.’” Smith v. United States, 843 F.3d 509, 515 (D.C. Cir. 2016), quoting Minch v. District

of Columbia, 952 A.2d 929, 940 (D.C. 2008). To qualify as sufficiently extreme and outrageous,

the conduct at issue must be “so outrageous in character, and so extreme in degree, as to go beyond

all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized

community.” Armstrong v. Thompson, 80 A.3d 177, 189 (D.C. 2013), quoting Drejza v. Vaccaro,

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

        The portion of the count dealing with the email server was dismissed once the United States

was substituted as a defendant. As for the portion of the count that deals with Secretary Clinton’s

statements as a private citizen, the fact that the Secretary disputed the plaintiffs’ account of events

does not rise to the level of being “utterly intolerable in a civilized community.” Armstrong, 80

A.3d at 189. So Count V does not state a plausible claim for intentional infliction of emotional

distress.

                                          CONCLUSION

        The Court finds for purposes of the Westfall Act that Secretary Clinton was acting in the

scope of her employment when she communicated with State Department personnel via the private

email server as Secretary of State, and it finds that she did not defame the plaintiffs or hold them

in a false light when she disputed their public allegations that she had lied to them in 2012. So

judgment will be entered for the United States on Counts I and IV, and on Counts V and VI to the

extent that they relate to the actions that Secretary Clinton took as Secretary of State, and judgment




                                                  28
will be entered for Secretary Clinton on Counts II and III, and on Counts V and VI to the extent

that those counts are premised on the alleged defamation.

       A separate order will issue.




                                            AMY BERMAN JACKSON
                                            United States District Judge

DATE: May 26, 2017




                                               29
