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Montgomery v. Risen

United States Court of Appeals, District of Columbia Circuit

November 17, 2017

Dennis L. Montgomery, Appellant
v.
James Risen, et al., Appellees

          Submitted September 22, 2017

          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

          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.

         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 ...


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