United States Court of Appeals, District of Columbia Circuit
Dennis L. Montgomery, Appellant
James Risen, et al., Appellees
Submitted September 22, 2017
from the United States District Court for the District of
Columbia, No. 1:16-cv-00126
Klayman was on the briefs for appellant.
R. Handman and Lisa B. Zycherman were on the brief for
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.
PILLARD, CIRCUIT JUDGE.
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.
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.
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
A. The Challenged Chapter
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.
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 ...