United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted September 22, 2017 Decided November 17, 2017
No. 16-7096
DENNIS L. MONTGOMERY,
APPELLANT
v.
JAMES RISEN, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-00126)
Larry Klayman was on the briefs for appellant.
Laura R. Handman and Lisa B. Zycherman were on the
brief for appellees.
Bruce D. Brown and Gregg P. Leslie were on the brief for
amici curiae The Reporters Committee for Freedom of the
Press and 35 Media Organizations in support of defendants-
appellees.
Before: GRIFFITH and PILLARD, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge PILLARD.
2
PILLARD, Circuit Judge: Software developer Dennis
Montgomery appeals from summary judgment in his
defamation action. Montgomery claimed that author James
Risen, together with publishers Houghton Mifflin Harcourt
Publishing Company and Houghton Mifflin Harcourt
Company (collectively, Defendants or Risen), made false and
damaging statements about Montgomery in the book Pay Any
Price: Greed, Power, and Endless War (2014). A chapter of
the book focuses on software that Montgomery pitched to the
United States as a counterterrorism tool, but that ultimately was
widely seen as a “hoax.” Id. at 33. Risen describes
Montgomery and his phantom software as “the perfect case
study to explain how during the war on terror greed and
ambition have been married to unlimited rivers of cash to create
a climate in which someone who has been accused of being a
con artist was able to create a rogue intelligence operation with
little or no adult supervision.” Id. at 31-32.
This is Montgomery’s defamation case—he chose to bring
it. To sustain it against a motion for summary judgment, he
would have had to marshal sufficient evidence to create a
triable issue for a jury as to each element of his claim. The
district court held that he failed to take the basic steps necessary
to do so. Critically, he produced virtually no evidence of the
software’s functionality to factually rebut Risen’s statements
that it never worked as Montgomery said it did.
Risen’s reporting is, at its core, about how authorities at
the highest levels of government fell for a “ruse,” id. at 32:
software that could never be verified. This lawsuit, too, has
been defined by the software’s persistent absence. That lacuna
in the record dooms Montgomery’s case. We affirm the district
court’s well-reasoned grant of summary judgment in favor of
Defendants.
3
Background
A. The Challenged Chapter
Risen’s book, Pay Any Price, argues that a post-9/11
scramble to strengthen national security led the U.S.
government and its contractors to “throw cash at
counterterrorism” and hastily create a “homeland security-
industrial complex” that was both wasteful and ineffective. Id.
at xiii-xvi, 32. Montgomery’s software was the subject of one
chapter titled “The Emperor of the War on Terror” (Chapter).
See id. at 31-53.
The Chapter chronicles Montgomery’s marketing of
software he invented that, he claimed, had revolutionary
capabilities to detect layers of data embedded in video and to
perceive granular detail in video images taken at great
distances. Montgomery first unsuccessfully pitched his
software to Hollywood, the Chapter details, as a new way to
more precisely colorize film from old black-and-white movies,
and then to casinos in Las Vegas to scope out cheaters on
surveillance tapes. Having struck out twice, he turned to
Washington, D.C. Risen’s Chapter focuses on how
Montgomery sold his wares to the federal government. He
persuaded Pentagon officials that the software could improve
the accuracy of its predator drone program. And he convinced
the Central Intelligence Agency (CIA) that it could detect
hidden messages in television broadcasts.
The Chapter describes how the CIA came to believe that
the software uncovered “hidden letters and numbers
embedded” in Al Jazeera tapes—combinations like “AA” and
“UA,” followed by two or three digits. Id. at 41. According to
Risen, the CIA connected the dots, concluding that those codes
represented flights that would soon be the targets of impending
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al Qaeda attacks. The software’s influence culminated in
December 2003: Then-CIA Director George Tenet “rushed
directly to President [George W.] Bush when information
provided by Montgomery and his software purported to show
that a series of flights from France, Britain, and Mexico to the
United States around Christmas were being targeted by al
Qaeda.” Id. at 42. Based on that data, the Chapter recounts,
President Bush ordered that a series of flights be grounded.
Information ostensibly mined from the broadcasts also caused
the Bush administration to discuss directing fighter jets to shoot
down a commercial flight filled with passengers over the
Atlantic.
Once the “fever” of that post-9/11 period broke, Risen
reports, government officials saw the software for what it was:
an “illusion.” Id. at 32.
B. Procedural History
Incensed by the allegations in the Chapter, Montgomery
sued Risen and his publisher in February, 2015. The Southern
District of Florida, where Montgomery initially filed,
transferred the case to the District of Columbia, where a
substantial part of the relevant events and research into them
occurred and for the convenience of the parties and witnesses.
On July 15, 2016, the district court here issued an opinion
resolving twelve outstanding motions or objections and
granting Risen’s motion for summary judgment. See
Montgomery v. Risen, 197 F. Supp. 3d 219 (D.D.C. 2016).
The district court had directed Montgomery to produce the
subject software. Id. at 238-45. It specifically rejected
Montgomery’s arguments that the software is either not
relevant to the case or not capable of production. Id. at 239-42.
The court was “substantially troubled by Montgomery’s and
his counsel’s conduct in this case,” specifically, their
5
representations about the software and failure to produce it in
violation of a court order. Id. at 246. The court considered
imposing case-ending spoliation sanctions, but deemed them
unnecessary because the case was readily subject to judgment
on its merits. Id.
It is worth remarking that this case is not the first in which
Montgomery has balked at producing or otherwise
demonstrating the capabilities of his obscure software. In his
suit against his ex-employer in Nevada, he similarly refused in
contravention of a court order to produce the software. J.A.
826-39. The court imposed monetary sanctions of $2,500 per
day for continued failure to comply. J.A. 844. Montgomery
settled that suit without producing his software. See J.A. 847-
73.
The district court held that production of Montgomery’s
software or other evidence corroborating Montgomery’s
claims about its capabilities was critical to his case. Where a
defamation plaintiff challenges statements on matters of public
concern, it is his burden to prove the falsity of the statements.
See Montgomery, 197 F. Supp. 3d at 239, 251-54. Risen was
entitled to summary judgment because Montgomery failed to
marshal evidence from which a reasonable jury could conclude
that Risen’s reporting about the software was untrue. Id. at
251-54.
The district court also held that Montgomery is a limited-
purpose public figure, meaning that he could recover for
defamation only if he further established that Risen published
the falsehoods with “actual malice.” Id. at 258. Montgomery
failed to make any showing of actual malice on Risen or the
publishers’ part. Id. at 266. Because “a plaintiff may not use
related causes of action to avoid the constitutional requisites of
a defamation claim,” the court also granted Defendants
6
summary judgment on Montgomery’s claims of intentional
infliction of emotional distress, tortious interference with
prospective advantage, and common law assault. Id. at 267
(quoting Moldea v. N.Y. Times Co., 22 F.3d 310, 319-20 (D.C.
Cir. 1994)). This appeal followed.
C. Standard of Review
This court reviews de novo the district court’s grant of
summary judgment. See Baylor v. Mitchell Rubenstein &
Assocs., P.C., 857 F.3d 939, 944 (D.C. Cir. 2017). We review
evidentiary and discovery rulings for abuse of discretion. See
Jankovic v. Int’l Crisis Grp., 822 F.3d 576, 584 (D.C. Cir.
2016). Summary judgment is appropriate if the “movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A fact is “material” if it may affect the outcome of
the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute is “genuine” if a reasonable jury
could find for the non-moving party. See Ricci v. DeStefano,
557 U.S. 557, 586 (2009). The movant bears the initial burden
of demonstrating that there is no genuine issue of material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In
response, the non-movant must identify specific facts in the
record to demonstrate the existence of a genuine issue. Id. at
324. A non-movant’s own assertions about facts within her or
his personal knowledge can be competent evidence to create a
material factual dispute, Johnson v. Perez, 823 F.3d 701, 710
(D.C. Cir. 2016), but party assertions “so conclusory” as to put
a jury in “no position to assess” whether they are based in fact
will not suffice, Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir.
1999).
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Discussion
As the district court correctly recognized, where a person
claims to have been defamed by statements about matters of
public concern, the First Amendment protects robust debate by
preventing either “pure opinion[s]” or truthful statements from
serving as grounds for liability. See Milkovich v. Lorain
Journal Co., 497 U.S. 1, 20 (1990); Phila. Newspapers Inc. v.
Hepps, 475 U.S. 767, 775-76 (1986). A plaintiff thus must
make a showing of falsity as an element of his affirmative case.
Id. The Supreme Court has acknowledged that “requiring the
plaintiff to show falsity will insulate from liability some speech
that is false, but unprovably so.” Hepps, 475 U.S. at 777. If a
subject of allegedly defamatory statements is a limited-purpose
public figure, he must further demonstrate that those statements
were made with actual malice. See Gertz v. Robert Welch, Inc.,
418 U.S. 323, 351 (1974); Clyburn v. News World Commc’ns,
Inc., 903 F.2d 29, 31 (D.C. Cir. 1990).
It is undisputed that Risen’s challenged statements involve
matters of public concern. The Chapter in question recounts
the peddling of dysfunctional software to the federal
government and its use in high-level national security
operations. Indeed, Montgomery was the subject of major
national news coverage, even before Risen published the book,
due to the national interest in the dozens of cancelled flights
during the 2003 holiday season based on a terrorist threat
ostensibly discovered by the software. See, e.g., Lisa Myer et
al., Bogus Analysis Led to Terror Alert in Dec. 2003: CIA
Experts Saw a Secret Code on Al-Jazeera That Wasn’t There,
NBC News, June 27, 2005, available at
www.nbcnews.com/id/8380365/ns/nbc_nightly_news_with_b
rian_williams-nbc_news_investigates/t/bogus-analysis-led-
terror-alert-dec/#.Wfc_9-SotQs.
8
Risen’s allegedly defamatory statements fall into two
categories. Some are “loose, figurative, or hyperbolic”
commentary—such as Risen’s characterization of
Montgomery as a “maestro” and the software as an “elaborate
and dangerous hoax[ ],” see Chapter at 32—which may not
serve as a basis for liability. See Milkovich, 497 U.S. at 21; see
also Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d 724,
728 (1st Cir. 1992) (finding characterizations of plaintiff’s
production as “a rip-off, a fraud, a scandal, [and] a snake-oil
job” to be merely “figurative and hyperbolic” and thus
protected). Other statements include facts about
Montgomery’s software’s nonexistence or dysfunction. To
avoid summary judgment as to his challenges to Risen’s factual
statements, Montgomery would have had to show that the
statements were false. Hepps, 475 U.S. at 777.
In opposing summary judgment, Montgomery provided
virtually no evidence that any of Risen’s factual statements
were untrue. Faced with a court order directing Montgomery
to provide the Federal Bureau of Investigations (FBI) with
instructions on how to pinpoint the relevant software among
the volumes of software in its possession, and requiring that he
turn over the software to Risen within a ten-day period,
Montgomery failed to comply. See Montgomery, 197 F. Supp.
3d at 237-39. And his own testimony—that the “software and
technology did work, does work, and is still being used
successfully by the U.S. Government,” and that the “data
detected by my software and technology did predict actual
terrorist incidents,” see J.A. 2007-08—is so conclusory that it
would put a jury “in no position to assess” the truthfulness of
his statements. See Greene, 164 F.3d at 675. Montgomery’s
argument that the software is irrelevant, see Appellant’s Br. 9,
is therefore unavailing under Hepps, and his refusal to proffer
evidence about it is fatal.
9
Montgomery intimates that, if the court deems the
software to be material, he should not be held to his burden
because the software is classified and so he cannot produce it.
See Appellant’s Br. 48-49. As an initial matter, there is reason
to doubt that the software is, in fact, classified. See
Montgomery, 197 F. Supp. 3d at 243-44; see also J.A. 806
(excluding the software from a motion for a protective order
filed by the United States in litigation in federal court in
Nevada between Montgomery and his former employer). Even
if the software is or was classified, Montgomery failed to take
any steps to join issue on whether classification impermissibly
obstructed his ability to satisfy his burden. Analysis of what
record evidence suffices to avoid summary judgment is
context-dependent, and we need not decide here what might
have been enough. But it is clear that there were multiple
avenues open to Montgomery to try to make the required
showing, either directly or indirectly. He pursued none.
First, Montgomery could have facilitated production of the
software, even if it is or was partially or completely classified.
The FBI, for example, offered to “facilitate . . . reasonable
access” to any material that Montgomery believed to be in its
possession. Montgomery v. Risen, No. 16-cv-0126 (D.D.C.),
Dkt. No. 126 at 3. The FBI explained that, given the masses of
electronic information in its possession, it needed “specific
instructions” from Montgomery about what he wanted. Id. at
4. Montgomery never provided those instructions. Id. Dkt. No.
158-1 ¶ 1; id. Dkt. No. 196-1 at 2; J.A. 1163. Montgomery also
refused to turn over material that he, at some points,
represented was in his possession or control, or to which he
claimed to have a right of access. Id. Dkt. No. 107 ¶ 6. And
he failed to take any steps to work with the court to
accommodate its review of potentially classified or sensitive
information. See, e.g., Hayden v. Nat’l Sec. Agency/Cent. Sec.
10
Serv., 608 F.2d 1381, 1384 (D.C. Cir. 1979) (discussing in
camera review procedures for classified documents).
Second, it is possible that Montgomery might have used
other forms of evidence, in lieu of the software itself, to put the
functionality of the software in dispute. He might have, for
example, provided his own detailed affidavit about the
software’s specifics. See Johnson, 823 F.3d at 709-10.
Instead, as discussed above, his record testimony makes only
bare and conclusory statements reaffirming the existence and
functionality of the software. Montgomery also has made only
vague references to witnesses who, he asserts, could
corroborate his claims at trial, but he failed to put any such
testimony into the record. See J.A. 2018. Because
Montgomery failed to use any of the available means to show
that his software was capable of functioning as he claimed it
did, he has not carried his burden under Hepps to make a
showing of falsity. We therefore affirm the district court’s
grant of summary judgment in Risen’s favor.
We need not reach the additional questions whether
Montgomery is a limited-purpose public figure or, if he is,
whether Risen made the challenged statements with actual
malice. See Hepps, 475 U.S. at 776. Summary judgment on
the attendant tort claims is fully supported given the opinion or
hyperbolic character of some statements and Montgomery’s
failure to put the remaining statements’ falsity at issue. Finally,
we review for abuse of discretion and sustain the district court’s
evidentiary and discovery holdings. With the able assistance
of a magistrate judge, the district court appropriately
determined that the software was unquestionably relevant and
thus subject to production. It validly held that Risen did not
forfeit his right to ask for it. The court soundly exercised its
discretion to direct that Montgomery produce the software on
specified terms. Montgomery’s own failure to take steps to
11
provide it or otherwise to demonstrate that the software worked
is what accounts for the failure of proof on the critical issue of
the truth or falsity of the statements he challenges as
defamatory. See Appellant’s Br. 46-48.
Conclusion
By choosing to sue for defamation, Montgomery asked the
district court and now our court to pass upon the merits of his
claims. But Montgomery has failed to put into the record any
evidence that would permit a factfinder to evaluate the
legitimacy of his bare assertions. We need not hypothesize
about what evidence of the software’s functionality might have
been enough to defeat the motion for summary judgment,
because Montgomery gives us virtually nothing to work with.
We therefore affirm the district court’s grant of summary
judgment for Defendants James Risen, Houghton Mifflin
Harcourt Publishing Company, and Houghton Mifflin Harcourt
Company.
So ordered.