Luis Jaime Castillo Butters v. National Academy of Sciences and Marcia McNutt

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 6, 2025 Decided May 22, 2026
No. 24-7068
LUIS JAIME CASTILLO BUTTERS,
APPELLANT
v.
NATIONAL ACADEMY OF SCIENCES AND MARCIA MCNUTT,
APPELLEES
Consolidated with 25-7001
Appeals from the United States District Court
for the District of Columbia
(No. 1:22-cv-03054)
Milton C. Johns argued the cause and filed the briefs for
appellant.
Karla Grossenbacher argued the cause and filed the brief
for appellees.
Before: HENDERSON and PAN, Circuit Judges, and
GINSBURG, Senior Circuit Judge.

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Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
Opinion concurring in part and dissenting in part filed by
Circuit Judge HENDERSON.
GINSBURG, Senior Circuit Judge: This consolidated appeal
involves claims of defamation, defamation by implication, and
false light invasion of privacy relating to the rescission of Luis
Jaime Castillo Butters’s membership in the National Academy
of Sciences. Castillo brought these claims against the NAS and
its president, Marcia McNutt, after they made statements
concerning Castillo’s ouster. The district court dismissed all
counts for failure to state a claim on which relief could be
granted. We affirm the judgment of the district court with
respect to the claim of defamation by implication. Because
Castillo has alleged a false statement actionable under a
defamation or a false light claim, however, we reverse the
judgment as to those claims and remand the case to the district
court for further proceedings.
I. Background
In reviewing the district court’s dismissal for failure to
state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6), we accept as true the facts alleged by Castillo and
view them in the light most favorable to him. Brown v. Whole
Foods Mkt. Grp., Inc., 789 F.3d 146, 150 (D.C. Cir. 2015).
A. Facts
Castillo is a professor of archaeology at the Pontifical
Catholic University of Peru. The NAS, a “private, nonprofit
organization of the United States’ leading researchers,” elected
Castillo to be an international member in 2012. First Am.
Compl. ¶¶ 4, 12. In the Spring of 2021, a former student of

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Castillo’s filed a complaint with the NAS. She publicly accused
Castillo of sexual harassment in Peru and asked the NAS to
expel him.
The NAS rescinded Castillo’s membership on October 9,
2021. On the 13th, President McNutt informed NAS members
by email that Castillo’s membership had been rescinded for a
Code of Conduct violation. That email mentioned a password-
protected website with further information for NAS members.
On October 15, the NAS made the news of Castillo’s ouster
publicly available on the organization’s website: “Luis Jaime
Castillo Butters; NAS Code of Conduct violation, Section 4;
membership rescinded.” First Am. Compl. ¶ 15, Ex. 1 at 1.
Section 4 not only requires members to treat others with respect
and collegiality but also broadly prohibits all forms of
discrimination, harassment, and bullying. See id. Ex. 2 at 1; see
also id. Ex. 2 at 2 n.iv (defining sexual harassment).
That same day, ScienceInsider published a story about the
revocation of Castillo’s NAS membership under the
subheading: “Sexual harassment investigation triggered
ejection of Luis Jaime Castillo Butters.” Sec. Am. Compl. Ex.
 Although the October 13 communication is not attached as an
exhibit to the First Amended Complaint, the defendants provided it
in their reply memorandum in support of their motion to dismiss the
original complaint, and Castillo confirmed the authenticity of the
communication in his surreply. We have held that “documents —
which were appended to [a] motion to dismiss and whose
authenticity is not disputed — may be considered here because they
are referred to in the complaint and are integral to [the] claim.”
Kaempe v. Myers, 367 F.3d 958, 965 (2004); see also W. Assocs. Ltd.
P’ship v. Mkt. Square Assocs., 235 F.3d 629, 634 (D.C. Cir. 2001)
(“[I]t is appropriate for the court to look beyond the amended
complaint to the record, which includes the original complaint”).
Accordingly, we will consider the October 13 communication in full.

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4 at 1. It further said this was the “third time in 5 months that
the prestigious academy has ejected a member for sexual
harassment.” Id. Ex. 4 at 3. McNutt, presumably contacted by
ScienceInsider to provide a comment, was quoted as saying
NAS “members need to be role models not only in what they
have achieved, but also in setting the highest standards for
professional conduct.” Id.
B. Procedural History
Pursuant to the defendants’ motions under Rule 12(b)(6),
the district court dismissed Castillo’s initial complaint against
the NAS and McNutt without prejudice, Castillo Butters v.
NAS (Castillo I), No. 22-cv-3054, 2023 WL 3736513 (D.D.C.
May 31, 2023), and then dismissed the defamation and false
light claims of his First Amended Complaint with prejudice,
Castillo Butters v. NAS (Castillo II), No. 22-cv-3054, 2024 WL
1328440 (D.D.C. Mar. 28, 2024). Specifically, the court held
that Castillo failed to allege either the October 13 or the
October 15 communication included a false statement:
Plaintiff disagrees that he violated [Section 4 of] the
Code of Conduct, but does not claim Defendants
made a false statement by explaining that the violation
was the reason for rescinding his membership. In fact,
Plaintiff acknowledges that Defendants expelled
Plaintiff from NAS on the grounds of sexual
harassment allegations, which Plaintiff also admits
would violate the Code of Conduct, if true.
Id. at *2 (cleaned up).
In Castillo II, the district court dismissed Castillo’s
defamation-by-implication claim without prejudice, giving the
plaintiff one more chance to plead additional facts. Id. at *4.
Ultimately, however, his Second Amended Complaint fared no

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better. See Castillo Butters v. NAS (Castillo III), No. 22-cv-
3054, 2024 WL 4957218 (D.D.C. Dec. 3, 2024). In Castillo III,
the court dismissed that claim for want of factual allegations
that “affirmatively suggest that Defendants intended or
endorsed a defamatory inference.” Id. at *2–3. The court also
rejected Castillo’s request, raised in his memorandum
opposing the defendants’ motion to dismiss, for further leave
to amend. Id. at *4. Castillo appealed the final dismissals in
Castillo II and Castillo III, and the appeals were consolidated.
II. Analysis
We review de novo the dismissal of a complaint for failure
to state a claim. Harris v. Ladner, 127 F.3d 1121, 1123 (D.C.
Cir. 1997). “To survive a 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) (cleaned up). Our review of the
district court’s denial of a motion for leave to amend is for
abuse of discretion. Jibril v. Mayorkas, 101 F.4th 857, 866
(D.C. Cir. 2024).
A. The Defamation and False Light Invasion of Privacy
Claims
Before the district court, the parties agreed that District of
Columbia law applies. In order to plead a defamation claim
under D.C. law, a plaintiff must allege:
(1) that the defendant made a false and defamatory
statement concerning the plaintiff; (2) that the
defendant published the statement without privilege to
a third party; (3) that the defendant’s fault in
publishing the statement amounted to at least
negligence; and (4) either that the statement was
actionable as a matter of law irrespective of special

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harm or that its publication caused the plaintiff special
harm.
Wright v. Eugene & Agnes E. Meyer Found., 68 F.4th 612, 624
(D.C. Cir. 2023) (quoting Beeton v. District of Columbia, 779
A.2d 918, 923 (D.C. 2001)).
As for the false light invasion of privacy claim, the D.C.
Court of Appeals has held that where a “plaintiff rests both his
defamation and false light claims on the same allegations, as
[the plaintiff] has done here, the claims will be analyzed in the
same manner.” Blodgett v. Univ. Club, 930 A.2d 210, 223
(D.C. 2007); see also Zimmerman v. Al Jazeera Am., LLC, 246
F. Supp. 3d 257, 273 (D.D.C. 2017) (quoting Blodgett, 930
A.2d at 223); cf. Smith v. Clinton, 886 F.3d 122, 129 (D.C. Cir.
2018) (“Because defamation and false light are so similar, a
plaintiff may plead them as alternatives and a reviewing court
must also satisfy itself that the statement does not arguably
place the plaintiff in a highly offensive false light in addition to
finding the statements are not capable of defamatory meaning”
(cleaned up)). The district court followed this approach,
Castillo II, at *1, as must we.
The defendants argue that Castillo failed to allege: (1) the
defendants made a false statement and (2) the defendants acted
with at least negligence. The district court did not reach the
negligence issue because it agreed with the defendants’ first
argument. Castillo II, at *2. In so doing, the court relied chiefly
upon Ruifang Hu v. K4 Solutions, Inc., No. 18-cv-1240, 2020
WL 1189297 (D.D.C. Mar. 12, 2020). In that case, the
plaintiff’s supervisor had said that the plaintiff was terminated
for sending “‘illegal’ emails.” Castillo II, at *2 (quoting
Ruifang Hu, at *11). The court held the plaintiff “failed to state
a defamation claim . . . because [illegal emails were] indeed the
reason for her termination, even though plaintiff disagreed that

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the emails she sent were ‘illegal’ or justified her termination.”
Id. (citing Ruifang Hu, at *2, *4, *11). Per the court, it was
“insufficient to allege only that the defendant made a statement
about a decision and the plaintiff disagrees with the underlying
substance of that decision.” Id.
Applying that principle to the case at hand, the district
court determined Castillo did not allege “that either of
Defendants’ statements were false.” Id. In the court’s view,
Castillo’s allegation that he did not violate the Code of Conduct
was insufficient. Instead, Castillo needed to allege that the
defendants rescinded Castillo’s membership for a reason
unrelated to a Code of Conduct violation.
Castillo argues that the district court misconstrued the
falsity element of a defamation claim: He pleaded a false
statement by alleging that he did not violate the Code of
Conduct, and the district court wrongfully considered that
allegation immaterial. Ruifang Hu too, per Castillo, was
wrongly decided because it conflated the “falsity of the
employer’s reason” with the “falsity of its statement
characterizing its employee’s conduct as illegal.”
Castillo is correct. Simply put, the district court did not
appreciate the nature of a two-layered statement. The Supreme
Court has explained:
[T]he issue of falsity relates to the defamatory facts
implied by a statement. For instance, the statement, “I
think Jones lied,” may be provable as false on two
levels. First, that the speaker really did not think Jones
had lied but said it anyway, and second that Jones
really had not lied. It is, of course, the second level of
falsity which would ordinarily serve as the basis for a
defamation action, though falsity at the first level may

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serve to establish malice where that is required for
recovery.
Milkovich v. Lorain J. Co., 497 U.S. 1, 20 n.7 (1990); see also
Benic v. Reuters Am., Inc., 357 F. Supp. 2d 216, 223–24
(D.D.C. 2004) (applying Milkovich to the statement “Benic
was fired from Reuters because he was a bad manager”).
The district court considered only the first level, that is
whether Castillo claimed the proffered reason for Castillo’s
membership rescission was false, which he did not. At the
underlying second level, however, the question is whether
Castillo violated the Code of Conduct. Because Castillo denied
that he violated the Code of Conduct, he has effectively as well
as expressly alleged that both the October 13 and October 15
statements were false.
 The October 13 email does not identify Castillo; it states only that
“an international NAS member’s membership has been rescinded for
violating the NAS Code of Conduct.” Nevertheless, Castillo alleges
McNutt did ultimately identify him as that international member.
First Am. Compl. ¶ 14. Castillo’s brief further explains that “[u]pon
accessing the password-protected website [mentioned in the October
13 email], more details were available, which Castillo does not have,
though upon information and belief, it tells NAS members that
Castillo violated Section [4] of the NAS Code of Conduct.” At this
stage it is sufficient for us to conclude that the October 13 email
plausibly referred to Castillo; it occurred four days after Castillo’s
membership rescission and two days before the public-facing
announcement of that rescission on the NAS’s website. See Florio v.
Gallaudet Univ., 119 F.4th 67, 73–74 (D.C. Cir. 2024) (“The referent
of a particular statement is a question of fact. So at this stage of the
litigation, we consider only whether [the plaintiff’s] reading of [the
defendant’s] statement is plausible” (cleaned up)). Put otherwise,
Castillo is entitled to discovery regarding the contents of the
password-protected website mentioned in the October 13 email.

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To be sure, not all false statements are actionable as
defamation. “An allegedly defamatory remark must be more
than unpleasant or offensive; [it] must make the plaintiff
appear odious, infamous, or ridiculous.” Weyrich v. New
Republic, Inc., 235 F.3d 617, 627 (D.C. Cir. 2001) (cleaned
up). In order for a defamation claim to proceed past a motion
to dismiss for failure to state a claim, the allegedly false
statement must be capable of a defamatory meaning: “It 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.” Id. (cleaned up).
It is not clear whether the district court held the October
13 or October 15 statements were capable of a defamatory
meaning. At one point, the court seemed to decide upon only
the false statement ground. See Castillo II, at *2 (“Because the
court concludes that Plaintiff failed to allege Defendants made
a false statement, the court need not consider Defendants’
arguments that Plaintiff failed to allege that Defendants acted
negligently”). Later, however, the district court observed that
some of the case law offered by the Plaintiff concerned
“whether the challenged statements were capable of
defamatory meaning — not whether plaintiffs pled that the
statements were false.” Id. After summarizing a D.C. Court of
Appeals decision that a certain statement was capable of a
defamatory meaning, the district court then wrote: “Here, by
contrast, Defendants stated only that they rescinded Plaintiff’s
membership because he violated the Code of Conduct, which
could have meant anything from harassment to bullying to
 For a false light claim, the analogous threshold question of law is
whether a “reasonable person could conclude that [the defendant’s]
statements put [the plaintiff] in a highly offensive false light.” Smith,
886 F.3d at 129 (cleaned up).

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discrimination to treating others with disrespect.” Id. (cleaned
up).
To the extent the district court held the October 13 and the
October 15 statements are not capable of a defamatory
meaning, we disagree. The October 15 statement that Castillo
violated Section 4 of the Code of Conduct is capable of a
defamatory meaning because Section 4 proscribes odious
conduct, to wit, sexual harassment. That Section 4
encompasses some less serious conduct — such as “treating
others with disrespect,” Castillo II, at *2 — does not defeat the
commonsense conclusion that the statement could be
“reasonably understood in [a] defamatory sense,” Weyrich, 235
F.3d at 627 (cleaned up). The October 13 statement may not
have specified which section of the Code of Conduct Castillo
supposedly violated, see First Am. Compl. ¶ 14, but
considering that other sections of the Code likewise proscribe
serious forms of ethical or scientific misconduct, that
distinction is inconsequential. Moreover, members of the
scientific community both inside and outside of the NAS would
also likely understand that the NAS would not expel a member
absent a serious transgression of the Code of Conduct. See
White v. Fraternal Ord. of Police, 909 F.2d 512, 518 (D.C. Cir.
1990) (“Generally, a publication may convey a defamatory
meaning if it tends to lower the plaintiff in the estimation of a
substantial, respectable group” (cleaned up)). We hold both
statements are capable of a defamatory meaning.
A final point on these claims: The parties briefed whether
Castillo adequately alleged the defendants were negligent in
publishing the allegedly defamatory statements. We do not
reach this issue because the district court did not pass upon it.
See, e.g., Lucas v. AFGE, 151 F.4th 370, 378 n.3 (D.C. Cir.
2025). On remand, the district court should determine in the

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first instance whether Castillo alleged facts that plausibly
suggest negligence.
B. The Defamation-by-Implication Claim
The district court also dismissed Castillo’s claim of
defamation by implication. Castillo alleged three impliedly
defamatory statements: McNutt’s October 13 communication
to NAS members, the October 15 NAS public website
announcement, and McNutt’s comment for the ScienceInsider
article. Castillo III, at *1. Having determined the first two
communications include allegedly false statements actionable
under a conventional defamation or false light claim, here we
need assess only whether McNutt’s comment to ScienceInsider
is actionable as defamation by implication. Because we agree
that Castillo failed to allege facts affirmatively suggesting the
defendants “intended or endorsed a defamatory inference,” id.
at *3, we affirm the district court’s dismissal of this claim.
1. The Plaintiff’s arguments
Defamation by implication is “an area fraught with subtle
complexities.” White, 909 F.2d at 518. Courts have required
“an especially rigorous showing where the expressed facts are
literally true.” Guilford Transp. Indus., Inc. v. Wilner, 760 A.2d
580, 596 (D.C. 2000) (cleaned up). This court has summarized
the analysis as follows:
[I]f 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 additional, affirmative
evidence suggesting that the defend-
ant intends or endorses the defamatory inference, the

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communication will be deemed capable of bearing
that meaning.
White, 909 F.2d at 520 (emphases deleted). For example, an
article that includes “suggestive juxtapositions, turns of phrase,
or incendiary headlines” may indicate the author intended or
endorsed a defamatory meaning. Id. at 526.
As to the particular language, recall that McNutt, in the
ScienceInsider article, is quoted as saying “members need to
be role models not only in what they have achieved, but also in
setting the highest standards for professional conduct.” Sec.
Am. Compl. Ex. 4 at 3. That statement alone provides no
indication that McNutt intended or endorsed a defamatory
implication. As the defendants argue, any possible defamatory
inference necessarily arises from other parts of the
ScienceInsider article, for which neither the NAS nor McNutt
is responsible.†
† The ScienceInsider article presents the quotation as follows: “NAS
President Marcia McNutt says the removals should convey that
‘[NAS] members need to be role models not only in what they have
achieved, but also in setting the highest standards for professional
conduct.’” Sec. Am. Compl. Ex. 4 at 3. The partial dissent (at pp. 5–
6) claims we ignore the beginning of the statement — “the removals
should convey that” — which is not a part of the direct quotation of
McNutt. Perhaps for that reason, those words appear nowhere in the
complaint, which repeatedly indicates it is only the direct quotation
of McNutt that Castillo alleges is impliedly defamatory. See Sec.
Am. Compl. ¶¶ 35, 59, 63. That is, the “complaint makes quite clear
which text [Castillo] regards as [defamatory] . . . and why he regards
it as [defamatory].” Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir.
2006). Particularly given the complexities presented when an
allegedly defamatory statement is embedded in a third-party
publication, we evaluate, “much as [we] did in Trudeau, . . . whether
Plaintiff’s specific theory of defamation is plausible.” Libre by Nexus

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Castillo’s claim of defamation by implication also lacks
any supporting factual allegations about “the particular
manner . . . in which the true facts [were] conveyed.” White,
909 F.2d at 520. The allegation that “McNutt encouraged and
fueled the production of the article by providing the statements
quoted” is conclusory; the allegation that the NAS and McNutt
failed to “correct the implication that [they] indeed revoked
Castillo’s membership due to sexual harassment” charges is a
negative inference, not affirmative evidence that they intended
or endorsed a defamatory inference. Sec. Am. Compl. ¶¶ 33,
62. In sum, the Second Amended Complaint contains no
allegation that, when viewed most favorably to Castillo,
renders plausible his claim of defamation by implication.
The cases Castillo offers to the contrary are not helpful to
his cause. In Fells v. Service Employees International Union,
the SEIU had launched an internal investigation in response to
accusations of sexual misconduct against its Executive Vice
President. 281 A.3d 572, 577–78 (D.C. 2022). After this
investigation and the EVP’s resignation, another high-ranking
SEIU official, Kendall Fells, “resigned, seemingly under threat
of termination” for reasons unrelated to sexual misconduct. Id.
“The SEIU statement at issue provided that Fells’ termination
was the culmination of this stage of the investigation, which
brought to light the serious problems related to abusive
behavior towards staff, predominantly female staff.” Id. at 586
(cleaned up). The core of Fells’s defamation claim was that the
statement, although not literally stating that Fells was forced to
resign for sexual misconduct, implied as much.
The D.C. Court of Appeals permitted Fells’s claim of
implied defamation to proceed past a motion to dismiss
v. Buzzfeed, Inc., 311 F. Supp. 3d 149, 156 (D.D.C. 2018); see also
id. (“Plaintiff advances a precise theory of defamation in its pleading.
It identifies only a single . . . defamatory statement in the Article”).

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because the SEIU statement included two problematic
juxtapositions. Id. at 586–87. Namely, SEIU’s specific mention
of behavior towards “predominantly female staff” and SEIU’s
“tethering [of Fells’s] departure to the same internal
investigation that led to [the EVP’s] ouster days earlier”
provided affirmative evidence such that a jury could find SEIU
intended or endorsed the inference that Fells was fired for
sexual misconduct. Id. at 586. Here, in contrast, McNutt’s
statement does not include a “problematic juxtaposition” or any
other contextual evidence suggesting that she intended or
endorsed a defamatory inference.
Nor do the statements at issue in Clampitt v. American
University resemble McNutt’s statement. 957 A.2d 23 (D.C.
2008). In that case, the university had fired the plaintiff, who
was the Executive Director and General Manager of WAMU,
a radio station owned by the university, after reports of
financial mismanagement at the station. Id. at 26–28. Upon the
plaintiff’s termination, a university spokesperson stated that
“Clampitt was relieved of her duties . . . after the Washington
Post exposed a financial deficit and morale problems,” and the
university president said the firing “was based on several
factors, including the continuing pattern of deficits.” Id. at 41.
The university president, however, “had specifically approved
Clampitt’s financial and budgetary recommendations and thus
knew or should have known that the allegations or implied
accusations of financial mismanagement were false and
without foundation.” Id. at 39. The D.C. Court of Appeals held
the statements were capable of defamatory meaning. Id. at 42.
Because the statements specifically mentioned WAMU’s
previously reported deficit in connection with Clampitt’s
firing, Clampitt raised a jury question regarding whether the
university defamed her by implying financial mismanagement
was partly the reason for her termination. See id. at 41.

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Here, however, the direct quotation of McNutt refers only
to NAS members as a group, and it makes no mention of sexual
harassment or any other particular conduct. Unlike in Clampitt
and in Fells, the degree of generality with which McNutt spoke
belies any notion she intended or endorsed a defamatory
implication. To plead a plausible claim of defamation by
implication under D.C. law, a plaintiff must “allege facts
showing that . . . ‘the particular manner or language in which
the true facts are conveyed’ supplies ‘additional, affirmative
evidence suggesting’” such intent or endorsement. Nunes v.
WP Co. LLC, No. 20-7121, 2022 WL 997826, at *3 (D.C. Cir.
Apr. 1, 2022) (quoting White, 909 F.2d at 520); see also Abbas
v. Foreign Pol’y Grp., 783 F.3d 1328, 1339 (D.C. Cir. 2015)
(Kavanaugh, J.) (“[T]o make out a defamation by implication
claim even in cases involving affirmative statements, D.C. law
requires an ‘especially rigorous showing’”) (quoting Guilford,
760 A.2d at 596). Because Castillo has not done so, the district
court’s dismissal of Castillo’s claim of defamation by
implication in the Second Amended Complaint must be
affirmed.
2. The partial dissent
Our partially dissenting colleague (at p. 1) would permit
Castillo’s claim of implied defamation to go forward on the
ground that McNutt’s statement must be viewed in context and
“the relevant ‘context’ . . . is the article itself.” To be sure, if a
defendant writes an article containing an allegedly defamatory
statement, then the entire article is the relevant context. See,
e.g., Clawson v. St. Louis Post-Dispatch, LLC, 906 A.2d 308,
314 (D.C. 2006). In this case, however, the author is
ScienceInsider, which is not a defendant, and the defendants
are not responsible for the content of the article beyond the
statements they made. See Guilford, 760 A.2d at 584 n.2 (“All
parties agree that Wilner did not select and is not responsible

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for the title of the article, which was apparently chosen by the
Journal of Commerce, which is not a defendant in this case”);
White, 909 F.2d at 520 (“We emphasize that the tortious
element is provided by the affirmative conduct of the author or
broadcaster”).
This is not to say a third-party statement may never be
relevant to the analysis of a defamation claim. Clampitt
acknowledged that a third-party news article may provide
relevant context insofar as, after its publication, a defendant
impliedly adopts the allegations in the article. In that case, the
employer terminated the employee “in the wake of” a
defamatory article concerning the employee, and the employer
subsequently made statements connecting the termination to
the content of that article. See 957 A.2d at 41–42; see also id.
at 27–28 (recounting timeline of events). That court’s theory of
implied adoption is inapplicable here, where the quotation of
McNutt appeared contemporaneously with and in the very
article that the partial dissent suggests (at pp. 1–2) she
impliedly adopted, and where there is no indication that
McNutt knew the rest of the content of the article when she
made her statement. To say that an individual who provides a
nondefamatory quotation for an article is at risk of impliedly
adopting the content of that article seems a dangerous
precedent and cannot be the law.
The partial dissent (at pp. 3–4) also treats a spokesperson
for the NAS having confirmed Castillo’s ejection as evidence
that the NAS adopted the allegations in the article. A statement
simply confirming the fact of Castillo’s ejection — and not the
reason for it — provides no affirmative evidence suggesting the
speaker intended or endorsed a defamatory meaning. Indeed,
D.C. law is clear that “the mere announcement of [a] firing
cannot support a claim of defamation by innuendo.” Howard v.
Fed. Express Corp., 316 F. Supp. 3d 234, 244 (D.D.C. 2018).

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This is because “[c]ourts in the District refuse, as a matter of
law, to find defamatory meaning where the claim of defamation
is based on the interpretation third parties place upon the
termination of an at-will employee.” LeFande v. District of
Columbia, 864 F. Supp. 2d 44, 52 (D.D.C. 2012) (citing
Clampitt, 957 A.2d at 40–41). We see no reason to treat a
statement confirming the rescission of Castillo’s membership
any differently.
Finally, contrary to the partial dissent (at p. 7 n.3), we are
not applying a heightened pleading standard to this claim; we
are simply assessing whether Castillo has plausibly alleged a
defamation-by-implication claim under D.C. law. We do not
read the Supreme Court’s recent decision in Berk v. Choy, 607
U.S. ___, 146 S. Ct. 546 (2026), as casting doubt on the notion
that “the plausibility standard operates in conjunction with the
substantive law of defamation,” which is inherently a matter of
local law. Shay v. Walters, 702 F.3d 76, 82 (1st Cir. 2012).††
C. Request for Leave to Amend
In his memorandum in opposition to the defendants’
motion to dismiss his Second Amended Complaint, Castillo
requested leave to amend his claim of defamation by
implication and to file a third amended complaint. Castillo
claimed to have “further facts, not alleged in his Second
Amended Complaint, that would strengthen his defamation by
implication argument, [so that] an effort to amend his
†† In any event, for “a panel to reconsider a prior decision of this court
in favor of a new Supreme Court precedent, the Court’s intervening
decision must effectively overrule, i.e., eviscerate, the law of our
circuit.” Bahlul v. United States, 77 F.4th 918, 925 (D.C. Cir. 2023)
(cleaned up). We do not think Berk eviscerated Nunes’s articulation
of what constitutes a plausible implied defamation claim under D.C.
law. See Nunes, at *3.

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18
complaint would not be futile.” The district court denied the
request, reasoning that “leave to amend is properly denied
when the plaintiff was aware of the information underlying the
proposed amendment long before moving for leave to amend
the complaint.” Castillo III, at *4 (quoting Onyewuchi v.
Gonzalez, 267 F.R.D. 417, 420 (D.D.C. 2010)).
Setting aside any question whether Castillo properly
moved for leave to amend, see United States ex rel. Williams v.
Martin-Baker Aircraft Co., Ltd., 389 F.3d 1251, 1259 (D.C.
Cir. 2004) (“[A] bare request in an opposition to a motion to
dismiss — without any indication of the particular grounds on
which amendment is sought — does not constitute a motion
within the contemplation of Rule 15(a)”), the district court
plainly did not abuse its discretion in denying the request.
Castillo had three opportunities to perfect his claim of
defamation by implication. He neither explains why his
claimed “further facts” were not included in an earlier pleading,
see Onyewuchi, 267 F.R.D. at 420, nor provides any detail as
to how those facts would strengthen his claim, see Martin-
Baker Aircraft Co., 389 F.3d at 1259. Even the permissive
standard for granting leave under Federal Rule of Civil
Procedure 15(a)(2), therefore, cannot save Castillo’s
defamation-by-implication claim.
III. Conclusion
For the foregoing reasons, we affirm the district court’s
dismissal of the claim of defamation by implication raised in
the Second Amended Complaint and reverse the district court’s
dismissal of the claims of defamation and false light invasion
of privacy raised in the First Amended Complaint. The case is
remanded to the district court for further proceedings.
So ordered.

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KAREN LEC RAFT HENDERSON, Circuit Judge, concurring
in part and dissenting in part: I join my colleagues in holding
that Castillo has stated a plausible defamation claim against the
National Academy of Sciences (NAS) and NAS President
Marcia McNutt based on their public statements that Castillo
was expelled from the organization for violating the NAS Code
of Conduct. But the majority is mistaken to hold that the
defendants’ separate statements in the ScienceInsider article do
not give rise to a claim of defamation by implication under
D.C. law.
“A defamation by implication stems not from what is
literally stated, but from what is implied.” White v. Fraternal
Ord. of Police, 909 F.2d 512, 518 (D.C. Cir. 1990). At the
motion-to-dismiss stage, we must ask whether it is plausible
that the defendant’s statements, “viewed in [their] entire
context,” “intend[ed] or endorse[d]” an inference about the
plaintiff, id. at 520, that is “capable of bearing a defamatory
meaning,” id. at 519. And because Castillo’s implied-
defamation claim arises from NAS’s and McNutt’s statements
in the ScienceInsider article, the relevant “context” for
evaluating those statements is the article itself.
The majority concludes that none of “the content of the
[ScienceInsider] article beyond the [defendants’] statements”
is relevant because the article was written by a third party. Maj.
Op. at 15. But the defamatory content of a third-party news
article is absolutely relevant in an implied defamation case to
the extent the defendant “impliedly adopt[s]” the “stigmatizing
allegations contained in [the] news[] article.” Clampitt v. Am.
Univ., 957 A.2d 23, 41 (D.C. 2008). In Clampitt, the defendant
“publicly appear[ed] to adopt the allegations of financial
mismanagement in . . . [a] Washington Post article” about the
plaintiff. Id. at 41. It did not matter that the Washington Post
was not a named defendant; the content of the article was
plainly relevant context. Id. at 40 (“[C]oncluding that the
[Washington Post] article . . . asserting that under Clampitt's

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2
watch, WAMU had been ‘awash’ with ‘large operating
deficits,’ . . . is capable of defamatory meaning.”).
My colleagues attempt to distinguish Clampitt on a most
parsimonious ground. They conclude the Clampitt Court’s
analysis of the news article is “inapplicable” here because the
defendant in Clampitt made its statements several days after the
article’s publication, whereas McNutt’s and NAS’s statements
“appeared contemporaneously with and in the very article”
Castillo reads as defamatory. Maj. Op. at 16. Respectfully,
that assertion makes little sense. The majority evidently reads
Clampitt to hold that a defamatory article is less relevant the
closer in time it is to the defendants’ statements—and not
relevant at all if the statements and the article are published
together. But that turns Clampitt’s reasoning on its head.
Clampitt concluded that commenting on an allegedly
defamatory article “in the immediate wake” of its release is
sufficient to make the article relevant. 957 A.2d at 40. In my
view, the principle applies with even greater force when a
defendant volunteers his comments in the article itself. That
NAS and McNutt willingly gave their statements to
ScienceInsider provides more reason, not less, to look to the
content of the offending article for necessary context.1
As for the article, ScienceInsider published its piece the
same day that NAS publicly announced it had expelled Castillo
for violating Section 4 of its Code of Conduct that prohibits,
among other things, sexual harassment. The ScienceInsider
article recounted at length the sexual harassment allegations
lodged against Castillo by his former student, Marcela Poirier,
1 The majority even suggests that applying Clampitt here would be
“dangerous.” Maj. Op. at 16. I do not see any danger in considering
the full content of the ScienceInsider article—an article that NAS
and McNutt willingly contributed to—in order to give their
statements context.

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3
the complaint Poirier lodged with NAS and the subsequent
“[s]exual harassment investigation [that] triggered [Castillo’s]
ejection” from NAS. J.A. 57. The article stated that Castillo’s
ouster from NAS “mark[ed] the third time in 5 months that the
prestigious academy has ejected a member for sexual
harassment.” Id. “The ejection,” the article continued, “was
confirmed by [an] NAS spokesperson.” Id. And after
summarizing the earlier sexual harassment cases—one
involving an astronomer and the other an evolutionary
biologist—the article quoted McNutt with the following
statement: “NAS President Marcia McNutt says the removals
should convey that ‘[NAS] members need to be role models
not only in what they have achieved, but also in setting the
highest standards for professional conduct.’” Id. at 58
(brackets in original).
The majority does not dispute that the ScienceInsider
article was “capable of defamatory meaning.” Clampitt, 957
A.2d at 39. “Its very title indicated” that NAS revoked
Castillo’s membership “because of sexual misconduct.” Fells
v. Serv. Emps. Int’l Union, 281 A.3d 572, 586 n.9 (D.C. 2022);
see J.A. 57 (“Leading Peruvian archaeologist ousted by U.S.
Academy of Sciences[:] Sexual harassment investigation
triggered ejection of Luis Jaime Castillo Butters.”). And the
body of the article made the connection explicit: Castillo’s
“ouster . . . marks the third time in 5 months that the [NAS] has
ejected a member for sexual harassment.” J.A. 57 (emphasis
added). The sole question, then, is whether it is plausible at
this stage to conclude that NAS’s and McNutt’s statements in
the article “intend[ed] or endorse[d]” that defamatory
inference. White, 909 F.2d at 520. With no difficulty, I
conclude that it is.
After it states that Castillo was “ejected . . . for sexual
harassment,” the article asserts in the next sentence that “[t]he

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4
ejection was confirmed by [an] NAS spokesperson.” J.A. 57.
A reader could easily infer that the NAS spokesperson had
“confirmed” not just the fact that NAS had expelled Castillo,
but also the article’s asserted reason for Castillo’s expulsion—
“for sexual harassment.” Id. The endorsement would be all the
plainer to readers because they also had access to NAS’s public
announcement, released the same day, that stated the official
ground for Castillo’s ejection was a violation of Section 4 of
the NAS Code of Conduct, which lists sexual harassment as a
basis for ejection. The spokesperson’s statement is therefore
actionable under the “adoption theory” of implied defamation
recognized in Clampitt. 957 A.2d at 41 (quoting Warren v.
Junction City, 176 F. Supp. 2d 1118, 1131 (D. Kan. 2001)). As
was the case in Clampitt, NAS “publicly appear[ed] to adopt
the [defamatory] allegations” in the ScienceInsider article, id.,
when it “confirmed” through its spokesperson that NAS had
removed Castillo “for sexual harassment,” J.A. 57.2
The inference is even stronger that NAS endorsed the
ScienceInsider article’s claim that Castillo was expelled for
sexual harassment because NAS was the all-but-certain source
of that information. Contrast with Clampitt, 957 A.2d at 39–
42 (no indication of collaboration between news organization
and defendant). It is hardly a coincidence that NAS announced
to the public that it had expelled Castillo the very same day
ScienceInsider published its detailed article linking the
decision to the sexual harassment allegations against Castillo.
2 My colleagues conclude that a reader would interpret the NAS
spokesperson’s statement as “simply confirming the fact of Castillo’s
ejection[,] . . . not the reasons for it.” Maj. Op. at 15. But “at this
stage of the litigation, we consider only whether the [broader]
reading of [McNutt’s] statement is plausible.” Florio v. Gallaudet
Univ., 119 F.4th 67, 73–74 (D.C. Cir. 2024). I have explained that it
is.

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5
The strategic timing strongly suggests NAS coordinated with
ScienceInsider in advance of the article’s release—an inference
all the more plausible because the article’s core claims that
Castillo was expelled (and that it was “for sexual harassment”)
were apparently not yet public knowledge. J.A. 57. Before the
article’s release, NAS had communicated Castillo’s departure
only to its membership base and the announcement did not
name Castillo, the Code of Conduct provision that he
purportedly violated or otherwise state that his ejection was
related to sexual misconduct. To write its article, in other
words, a reputable news organization like ScienceInsider
would have needed a direct source with insider knowledge of
the specific conduct that led to Castillo’s expulsion. The most
obvious source for that intel was NAS, the decisionmaker
behind Castillo’s removal.
And then there is McNutt’s statement in the article. After
summarizing Castillo’s ouster and other recent cases in which
NAS members were purportedly expelled for sexual
harassment, the article recites McNutt as “say[ing] the
removals” (plural) “should convey that ‘[NAS] members need
to be role models . . . in setting the highest standards for
professional conduct.’” J.A. 58. By grouping Castillo with the
members NAS had dismissed for sexual misconduct, McNutt’s
statement implied that Castillo had been ousted for the same
reason. Her statement thus invited the same type of
“problematic juxtaposition” held to be defamatory in Fells.
281 A.3d at 586 (defendant’s statement “tethering [Fells’s]
departure to the same internal investigation that led to [another
individual’s] ouster days earlier” implied “that [Fells], too, had
engaged in sexual misconduct”).
My colleagues do not dispute the defamatory import of
McNutt’s full statement. Rather, they conclude that in deciding
whether her statement was actionable only her “direct

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6
quotation” in the article is relevant—because that is the only
part of her statement that Castillo referenced in his complaint.
Maj. Op. at 12, 15. And it is only after stripping McNutt’s
statement down to her bare quote that “[NAS] members need
to be role models . . . in setting the highest standards for
professional conduct,” J.A. 58, that the majority concludes
“McNutt’s statement does not include a ‘problematic
juxtaposition’” at all, Maj. Op. at 13.
I believe the majority’s holding that McNutt’s full
statement cannot be considered as part of Castillo’s pleading is
flatly incorrect. “Federal Rule of Civil Procedure 10(c) permits
a plaintiff to attach an exhibit to the complaint, rendering the
exhibit ‘part of the pleading for all purposes.’” Banneker
Ventures, LLC v. Graham, 798 F.3d 1119, 1133 (D.C. Cir.
2015). In support of his implied defamation claim, Castillo
attached to the Second Amended Complaint the entire
ScienceInsider article, which included McNutt’s full statement.
The statement—not just the quoted part of it—is thus part of
Castillo’s pleading for the purpose of deciding whether he has
stated a claim for relief. Fed. R. Civ. P. 10(c); see Trudeau v.
FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (“[B]ecause
[Trudeau] has attached all of the relevant text to the complaint,
it is appropriate for a court to examine that material in ruling
under Rule 12(b)(6).”). The majority’s failure to consider
McNutt’s full statement is also inconsistent. It agrees we
should “consider the [NAS] October 13 communication in full”
to weigh Castillo’s express defamation claim, Maj. Op. at 3
n.1—although Castillo failed to attach the communication as
an exhibit to the operative complaint—but declines to consider
the McNutt statement “in full” even though Castillo did include
it as an exhibit to his complaint.
Nor does it matter that McNutt’s full statement did not
identify Castillo by name or explicitly “mention . . . sexual

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7
harassment.” Maj. Op. at 15. Implied defamation does not
require the defendant to “expressly state [the plaintiff] was
terminated for sexual misconduct.” Fells, 281 A.3d at 586.
Again, McNutt was commenting on “the removals” of Castillo
and other NAS members accused of professional misconduct
that was sexual in nature, J.A. 58, and the entire article, after
all, was about Castillo and how he had been expelled “for
sexual harassment,” id. at 57. “[V]iewed in its entire context,”
McNutt’s statement plainly referred to Castillo and the
circumstances of his removal. White, 909 F.2d at 520.3
Some implied-defamation cases are “fraught with subtle
complexities.” White, 909 F.2d at 518. This one is not. The
same day NAS and McNutt publicly announced the decision to
rescind Castillo’s membership for violating the section in
NAS’s Code of Conduct that prohibits sexual harassment,
ScienceInsider published NAS’s and McNutt’s statements
“confirm[ing]” the reason NAS expelled Castillo. J.A. 57.
Castillo has therefore stated a plausible claim of defamation by
implication and I believe the majority errs by not allowing it to
go forward.
3 My colleagues also suggest that Castillo’s implied defamation
claim is subject to an “especially rigorous” pleading standard under
D.C. case law because, in their view, McNutt’s statement “expressed
facts [that] are literally true.” Maj. Op. at 11 (quoting Guilford
Transp. Indus., Inc. v. Wilner, 760 A.2d 580, 596 (D.C. 2000)). But
we do not defer to D.C.’s procedural rules regarding “the information
a plaintiff must present about the merits of his claim at the outset of
litigation.” Berk v. Choy, 607 U.S. ----, 146 S. Ct. 546, 553 (2026).
And insofar as the majority adopts a heightened pleading standard of
its own, the Supreme Court has “consistently rejected” attempts “to
require more information for certain kinds of claims” that the Federal
Rules of Civil Procedure do not otherwise “single out . . . for special
treatment.” Id.; see, e.g., Fed. R. Civ. P. 9(b).

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