United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 3, 2002 Decided August 20, 2002
Nos. 00-7210 & 00-7211
Republican National Committee and
Haley Barbour,
Appellees
v.
Gene Taylor, et al.,
Appellants
Appeals from the United States District Court
for the District of Columbia
(No. 97cv00691)
Lawrence R. DeMarcay III argued the cause for appellant
Gene Taylor. With him on the briefs was George J. Fowler
III. Bruce E. Aitken entered an appearance.
Charles P. Resor argued the cause pro se.
Thomas W. Kirby argued the cause for appellees. With
him on the brief was Jan W. Baran.
Before: Edwards, Henderson, and Garland, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: After publishing an offer to pay
one million dollars to the first person who could demonstrate
that a statement about Republican plans for Medicare spend-
ing was false, the Republican National Committee (RNC)
denied all claims for the prize. Two of those claims are now
before this court. The RNC prevailed in the district court on
its motion for summary judgment, and we affirm.
I
In December 1995, the Republican National Committee ran
an advertisement in the newspapers USA Today and Roll
Call. The ad is reproduced at the end of this opinion, and we
summarize its most salient features here. Prominently fea-
tured at the top of the ad is a photograph of Haley Barbour,
then chair of the RNC, holding an oversized check for one
million dollars, payable to "your name here." Next to and
below Barbour's image, the following text appears:
Heard the one about Republicans 'cutting' Medicare?
The fact is Republicans are increasing Medicare spend-
ing by more than half. I'm Haley Barbour, and I'm so
sure of that fact I'm willing to give you this check for a
million dollars if you can prove me wrong.
The advertisement goes on to assert that under the Republi-
can plan, the government would increase Medicare spending
over the next seven fiscal years, culminating in a 2002 expen-
diture 62% higher than that in 1995. In the bottom right
portion of the ad, framed in a border to look like a coupon,
the following appears:
[Photo not available electronically.]
The ad then invites readers who disagree with the bold text
in quotation marks (the "Challenge Statement") to check a
box labeled "I don't believe you, Haley" and return the
coupon with their analyses of "why you are wrong" to the
RNC's Washington, D.C. address.
Approximately eighty people across the country did not
believe Haley and mailed in claims for the million-dollar prize.
The RNC responded to each claimant by sending him or her
a form letter rejecting the claim as incorrect, and enclosing a
Congressional Budget Office report. After one rejected
claimant filed a breach of contract suit in the Superior Court
of the District of Columbia, the RNC and Barbour (hereinaf-
ter the RNC) posted a million-dollar bond and filed a statuto-
ry interpleader action against all of the claimants in the
United States District Court for the Southern District of
Mississippi, pursuant to 28 U.S.C. ss 1335, 2361. The Missis-
sippi district court subsequently determined that Washington,
D.C. was the more appropriate forum, and transferred the
interpleader action to the United States District Court for the
District of Columbia, pursuant to 28 U.S.C. s 1404(a). Re-
publican Nat'l Comm. v. Taylor, No. 4:97CV5LN (S.D. Miss.
Mar. 19, 1997) (hereinafter Mississippi Decision).
When the case was transferred to the federal district court
in this district, a number of the original interpleader defen-
dants failed to press their claims, and their cases were
dismissed. One claimant settled with the RNC. The RNC
then moved for summary judgment against the remaining
claimants, on two principal grounds: (1) that the advertise-
ment was merely a "parody" and not binding on the RNC;
and (2) that even if the ad were an offer to contract, the
Challenge Statement was not false. Although the court
rejected the first argument, it accepted the second and grant-
ed summary judgment against all of the claimants. Republi-
can Nat'l Comm. v. Taylor, No. 97-0691 (D.D.C. July 6,
2000) (hereinafter District Court Decision).
Only four claimants appealed the grant of summary judg-
ment. One appeal was dismissed because the appellant failed
to file a timely notice of appeal. Another panel of this court
summarily affirmed the judgment against a second. The
appeals of the remaining two claimants, Representative Gene
Taylor and Charles P. Resor, are addressed in this opinion.1
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1 The RNC moved to dismiss Taylor's appeal on the ground
that his notice of appeal, although signed by out-of-town counsel,
was not signed by a member of the district court bar, in violation of
D.D.C. Local Civ. R. 83.2(c)(1) ("All papers submitted by non-
members of the Bar of this Court must be signed by such counsel
and by a member of the Bar of this Court joined in compliance with
this Rule."). As the notice of appeal is a district court filing, Fed.
R. App. P. 3(a)(1), the local rule is made applicable by Fed. R. App. P.
1(a)(2) ("When these rules provide for filing a motion or other
document in the district court, the procedure must comply with the
practice of the district court."). Nonetheless, we deny the motion.
While a notice of appeal must be signed by counsel, Fed. R. Civ. P.
II
We review a grant of summary judgment de novo, affirm-
ing only if there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of
law. Levitan v. Ashcroft, 281 F.3d 1313, 1317 (D.C. Cir. 2002)
(citing Fed. R. Civ. P. 56(c)). As an initial matter, we must
determine which jurisdiction's law applies. None of the
parties addressed this question in their briefs, relying instead
on "the general law of contracts" and citing decisions from a
myriad of state and federal courts.
In a case like this one, in which jurisdiction is founded on
the diversity of the parties' citizenship, we apply the choice-
of-law rules of the forum state. Klaxon Co. v. Stentor Elec.
Mfg. Co., 313 U.S. 487, 496 (1941); Young Women's Christian
Ass'n v. Allstate Ins. Co. of Canada, 275 F.3d 1145, 1150
(D.C. Cir. 2002). The fact that the RNC filed the case under
the federal interpleader statute, 28 U.S.C. s 1335, does not
change the analysis as that statute rests on diversity jurisdic-
tion. Griffin v. McCoach, 313 U.S. 498, 503 (1941) (applying
forum state's choice-of-law rules in statutory interpleader
action); see Whirlpool Corp. v. Ritter, 929 F.2d 1318, 1320-21
(8th Cir. 1991). Moreover, although this case was transferred
to the federal district court for the District of Columbia, we
continue to apply the choice-of-law rules of the state--Missis-
sippi--in which the case was originally filed. Ferens v. John
Deere Co., 494 U.S. 516, 518-19 (1990); Van Dusen v. Bar-
rack, 376 U.S. 612, 639 (1964).
In deciding choice-of-law questions, Mississippi applies the
"center of gravity" test. Sheppard Pratt Physicians, P.A. v.
__________
11(a), the Supreme Court has recently held that even the complete
absence of a signature does not deprive a court of appeals of
jurisdiction, Becker v. Montgomery, 532 U.S. 757, 766 (2001). A
fortiori, an error as to which attorney signed the notice is nonjuris-
dictional. Under such circumstances, a court of appeals has discre-
tion to treat a filing irregularity "as it considers appropriate." Fed.
R. App. P. 3(a)(2). And because "imperfections in noticing an appeal
should not be fatal where no genuine doubt exists about who is
appealing, from what judgment, to which appellate court," Becker,
532 U.S. at 767, we decline to dismiss the appeal for this technical
violation.
Sakwa, 725 So. 2d 755, 757 (Miss. 1998) (citing Restatement
(Second) of Conflict of Laws s 188 (1971)); see Gann v.
Fruehauf Corp., 52 F.3d 1320, 1324 (5th Cir. 1995). As best
we can determine from the record, the jurisdiction that is the
center of gravity of this case is the District of Columbia--the
location of the RNC's headquarters, the place where one of
the two newspapers carrying the advertisement is published,
and the address to which all of the claims were mailed.
Indeed, that was essentially the reason given by the Missis-
sippi district court for transferring the case to the District of
Columbia in the first place. See Mississippi Decision, slip op.
at 9 ("[T]he clear focus of the events giving rise to this action
was the District of Columbia, from which the 'contest' or
'challenge' was devised and published and to which all 'contes-
tants' or 'challengers' sent their responses.").2 Moreover,
where, as here, the parties do not raise the choice-of-law issue
either in the district court or on appeal, courts generally
apply the law of the jurisdiction in which they sit. See, e.g.,
Cavic v. Grand Bahama Dev. Co., 701 F.2d 879, 882-83 (11th
Cir. 1983); Restatement (Second) of Conflict of Laws s 136
cmt. h; Eugene F. Scoles & Peter Hay, Conflict of Laws
s 12.19, at 426-27 (2d ed. 1992). In any event, none of the
parties cited any Mississippi cases in their briefs, and at oral
argument none suggested any way in which Mississippi law
differs from that of the District of Columbia on the issues
that are relevant to our decision. We will therefore apply the
contract law of the District in resolving this appeal.
III
In the district court, the RNC contended that its advertise-
ment was intended merely as a parody, and not as a docu-
ment that could bind it to make payment to a successful
__________
2 The only factor weighing in favor of Mississippi law is that it
is the state of residence of Barbour and of one of the interpleader
defendants, Representative Taylor. Both individuals, however,
worked in Washington, D.C. at the time, see Mississippi Decision,
slip op. at 7, 9, and at oral argument Barbour argued that D.C. law
should apply.
claimant. The district court rejected that contention, holding
that the ad was "an offer for a valid unilateral contract, which
anyone could have accepted by rendering performance in the
manner indicated." District Court Decision, slip op. at 9.3
On appeal, the RNC does not dispute that holding. We
therefore turn to the remaining question: the meaning of the
contract offered by the RNC.
Under District of Columbia law, the meaning of a contract
"is an issue for the finder of fact only if the contractual
language is ambiguous, i.e., where its interpretation depends
upon the credibility of extrinsic evidence or upon a choice of
reasonable inferences from such evidence." Dodek v. CF 16
Corp., 537 A.2d 1086, 1092 (D.C. 1988) (citations omitted).4
"Ambiguity exists only if the court determines that proper
interpretation of the contract depends upon evidence outside
the contract itself," and "[w]hether such ambiguity exists is a
__________
3 See Opton, Inc. v. FDIC, 647 A.2d 1126, 1134 n.6 (D.C. 1994)
(stating that a unilateral contract is one in which the promissor
makes a promise in exchange for a proposed act, and that "[p]erfor-
mance of the act constitutes acceptance of the offer, and at that
point a contract comes into being" (internal quotation marks omit-
ted)); Minton v. F.G. Smith Piano Co., 36 App. D.C. 137 (1911)
("The advertised offer of a reward or premium for the performance
of a specified act is a proposition submitted to all persons who may
accept and comply with its conditions. Until accepted it may be
withdrawn; but when accepted, it becomes a binding contract
between the proposer and the acceptor who shall have performed
the service or done the act required."); cf. Rosenthal v. Al Packer
Ford, Inc., 374 A.2d 377, 379-82 (Md. Ct. Spec. App. 1977) (discuss-
ing "prove me wrong" cases).
4 See 1010 Potomac Assocs. v. Grocery Mfrs. of Am., Inc., 485
A.2d 199, 205 (D.C. 1984) (holding that "the interpretation of an
integrated contract is a question of law unless it depends on the
credibility of extrinsic evidence or on a choice among reasonable
inferences to be drawn from extrinsic evidence" (citing Restate-
ment (Second) of Contracts s 212(2) (1981))); see also id. at 205
n.6 ("Analytically, of course, the question of what the parties
intended is clearly a question of fact. But the courts have long
called it a question of law." (internal quotation marks omitted)).
question of law for the court to determine." Id. at 1092-93.
Where, as here, "[n]one of the parties ... contends that
extrinsic evidence is at issue," but instead the parties "merely
present[ ] two competing versions of what [they] intended by
the disputed language," the contract's meaning is a question
for the court to decide. Id. at 1093; see 1010 Potomac
Assocs. v. Grocery Mfrs. of Am., Inc., 485 A.2d 199, 205 (D.C.
1984). In any case, we do not regard the Challenge State-
ment as ambiguous with respect to either of the two claims
that remain in this case.
A
As noted above, the Challenge Statement consists of the
following two sentences:
In November 1995, the U.S. House and Senate passed a
balanced budget bill. It increases total federal spending
on Medicare by more than 50% from 1995 to 2002,
pursuant to Congressional Budget Office standards.
Representative Taylor does not disagree with the second
sentence's assertion regarding increases in Medicare spend-
ing. Letter from Taylor to Barbour 1 (Dec. 14, 1995) (J.A. at
121). Instead, he focuses on the first sentence, and argues
that it is false because the bill in question, which all agree
was H.R. 2491 of the 104th Congress, did not and could not
actually balance the budget in fiscal year 1996. Taylor does
not dispute that the bill included a plan for 1996 through 2002
that, if followed, would have balanced the budget by fiscal
year 2002. But Taylor argues (without disagreement from
the RNC) that the bill did not even purport to balance the
budget completely in 1996. See Congressional Budget Of-
fice, The Economic and Budget Outlook: December 1995
Update at 10 ("Under the policies of the Balanced Budget
Act, the deficit would decline to $151 billion in 1996"). As a
consequence, Taylor concludes, it is false to describe the bill
as a "balanced budget bill."
There are two problems with Taylor's reading of this
sentence. First, the sentence does not appear to represent
an independent assertion, but instead serves merely as a
referent for the assertion (and challenge) contained in the
second sentence, which declares: "It increases total federal
spending on Medicare...." That is, the first sentence sim-
ply makes clear that the "it" in the second sentence is the
"balanced budget bill." This conclusion is confirmed by the
fact that, other than the words "a balanced budget bill" in the
first sentence, there is no mention anywhere in the advertise-
ment of a claim that Republicans are balancing (or have
balanced) the budget. By contrast, the point of the ad,
repeated in virtually every section and in bold letters, is
plainly its assertion that "Republicans are increasing Medi-
care spending."
Nor is "a balanced budget bill" an obscure or surprising
way to refer to the bill in question, since the first sentence of
H.R. 2491 states: "This Act may be cited as the 'Balanced
Budget Act of 1995.' " H.R. Conf. Rep. No. 104-350, at 1
(1995). And Taylor does not dispute that H.R. 2491 was
commonly referred to as the "balanced budget bill." None-
theless, he argues that the Challenge Statement "should have
read 'the balanced budget bill,' " rather than "a balanced
budget bill," "if the RNC had wanted to indicate that it was
referring to H.R. 2491 specifically and not the task of balanc-
ing the budget." Taylor Br. at 25. This seems to us,
however, to put too much weight on the substitution of the
indefinite for the definite article, and is insufficient to create
ambiguity as to the meaning of the advertisement.
Second, even if we were to read the first sentence of the
Challenge Statement as making an affirmative claim that the
bill would balance the budget rather than merely increase
Medicare spending, we cannot read it as claiming to do so in a
single year. Again, almost every section of the advertisement
refers to the Republicans' plan for spending over seven years,
culminating in 2002. Indeed, the second sentence of the
Challenge Statement itself refers to spending "from 1995 to
2002." Thus, we find no ambiguity with respect to this claim,
and conclude that the Challenge Statement does not falsely
allege that the Republicans' plan would balance the federal
budget in a single year.
B
Charles Resor's claim focuses on the second sentence of the
Challenge Statement: the assertion that H.R. 2491 "increases
total federal spending on Medicare." Resor does not dispute
that the bill, if passed, would have increased Medicare spend-
ing. See Resor Br. at 8-9. But he contends that the
assertion that the bill "increases" spending is false because
the President vetoed the bill and Congress never overrode
the veto.5 As Resor explains, "only 'laws,' not 'bills,' can
increase federal spending." Resor Br. at 16 (citing U.S.
Const. art. I, s 7, cl. 2).
The flaw in Resor's argument is that the present tense,
"increases," is both commonly and grammatically used to
indicate future action. See American Heritage Book of
English Usage s 68 (1996). A search of Westlaw's "AllNews"
and "Congressional Record" databases, for example, discloses
hundreds of instances in which journalists and members of
Congress describe the effect of unenacted legislation with
variants of the phrase, "This bill increases ... ," by which the
speaker means that the bill will do so if and when it becomes
law.6 Nor could a reader of the advertisement have been
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5 H.R. 2491 was passed by both houses of Congress in Novem-
ber 1995, was presented to the President on November 30, 1995,
and was vetoed on December 6, 1995. See District Court Decision,
slip op. at 10-11; CCH Inc., Congressional Index, 104th Congress
at 35,055 (1996). The advertisement appeared in USA Today on
December 12, 1996, and in Roll Call at approximately the same
time.
6 See, e.g., For the Record, Wash. Post, Dec. 20, 2001, at T17
("The bill increases spending for the National Missile Defense by 60
percent.... "); Education Bill Passes, N.Y. Times, June 17, 2001,
s 4, at 2 ("The bill increases the role of the federal government in
local schools...."); 148 Cong. Rec. H5246 (daily ed. July 23, 2002)
(statement of Rep. Chambliss) ("[T]his bill increases funding for
this important facility...."); 148 Cong. Rec. S4044 (daily ed. May
misled into thinking that the RNC's claim was that the bill
was already enacted, or that it would have force before it was
enacted. As Resor himself notes, the Constitution distin-
guishes between a "bill" and a "law,"7 and the Challenge
Statement correctly refers to H.R. 2491 as a "bill" passed by
"the U.S. House and Senate." Indeed, the advertisement
expressly refers to its spending projections as a "plan."
In his letter to the RNC, Resor wrote: "Your statement,
perhaps, would have been correct if it had used the words
'would have increased' instead of 'increases,' " thus "acknow-
ledg[ing] the hypothetical nature of the statement." Letter
from Resor to Barbour 1 (Dec. 12, 1995) (J.A. at 64) (empha-
sis added). Yet, in fact the advertisement does use almost
the precise formulation suggested by Resor. Immediately to
the left of the box containing the Challenge Statement, the ad
states: "[U]nder our plan, the government would spend $289
billion on Medicare" (emphasis added). It thus provides the
very indication of conditionality that Resor says was required
to make the assertion true. And while Resor insisted at oral
argument that this court is not permitted to look outside the
(framed) box to determine the meaning of the Challenge
Statement, District of Columbia law is to the contrary.8 We
__________
8, 2002) (statement of Sen. Kerry) ("This bill increases spending for
land and water conservation programs...."); see also United
States v. Dotterweich, 320 U.S. 277, 283 n.2 (1943) ("[T]he Bill
'increases substantially the criminal penalties....' " (quoting H.R.
Rep. No. 75-2139, at 4 (1937))); United States ex rel. Springfield
Terminal Ry. Co. v. Quinn, 14 F.3d 645, 651 (D.C. Cir. 1994)
(" '[T]he Senate bill increases incentives, financial and otherwise, for
private individuals to bring suits....' " (quoting S. Rep. No. 99-345,
at 1-2 (1986))).
7 U.S. Const. art. I, s 7, cl. 2 ("Every Bill which shall have
passed the House of Representatives and the Senate, shall, before it
become a Law, be presented to the President of the United
States....").
8 See Dodek, 537 A.2d at 1096 (noting that the "general rule is
that contracts will be read as a whole, and every part will be
interpreted with reference to the whole"); Davis v. Davis, 471 A.2d
1008, 1009 (D.C. 1984) (indicating that "to find a writer's intent," a
therefore find no ambiguity with respect to Resor's claim, and
conclude that the Challenge Statement's assertion that H.R.
2491 "increases total federal spending" is not rendered false
by the fact that the President ultimately vetoed the bill.
IV
For the foregoing reasons, we conclude that the RNC's
Challenge Statement is not ambiguous with respect to the
two claims at issue on this appeal, and that, as a matter of
law, the Statement is not false with respect to either claim.
Accordingly, the judgment of the district court is
Affirmed.
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court should "construe[ ] the document as a whole"); cf. United
States v. Insurance Co. of N. Am., 83 F.3d 1507, 1511 (D.C. Cir.
1996) (noting the "cardinal principle of contract construction: that a
document should be read to give effect to all its provisions" (quoting
Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 63
(1995))).
[Ad not available electronically.]