IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
DEVIN G. NUNES

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Appellant,
v.
RYAN LIZZA
et al
Appellees.

Appeal No. 20-2710

DESIGNATION AND STATEMENT OF THE ISSUES
 

Appellant, Devin G. Nunes (“Nunes”), by counsel, intends to present the

following issues on this Appeal:
1.
Did the District Court follow the proper standard in evaluating Nunes’s
amended complaint or did the District Court view the amended complaint in a light
most favorable to the Defendants?
2.
Is New York Times v. Sullivan, 376 U.S. 254 (1964) good law? Does
the United States Constitution require public figures to satisfy an actual-malice
standard in state-law defamation suits? Should Sullivan be reconsidered and
overturned?
3.

Did the District Court err in applying Sullivan in this case?

4.
Did Nunes plausibly allege that the Defendants published the Article
with actual malice?

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 5.
Properly construing the Defendants’ statements “as a whole”, in context
and in light of the surrounding circumstances, see, e.g., Lundell Mfg. Co., Inc. v.
American Broadcasting Companies, Inc., 98 F.3d 351, 359 (8th Cir. 1996) (quoting
Kiner v. Reliance Ins. Co., 463 N.W.2d 9, 14 (1990)) and Toney v. WCCO
Television, Midwest Cable and Satellite, Inc., 85 F.3d 383, 396 (8th Cir. 1996), does
the Article contain actionable statements of and concerning Nunes? Does the Article
impute to Nunes acts that are dishonest and unethical and that prejudice him in his
profession as a United States Congressman?
6.
Do the Defendants’ rhetorical questions in the Article imply the
existence of defamatory facts?
7.
Where, as here, a defendant’s words are fairly capable of two meanings
– one harmless and the other defamatory – is it a question for the jury whether the
words convey the defamatory meaning? Did the District Court err in deciding the
issue as a matter of law?
8.
Could a reasonable reader draw from the Article the defamatory
implications alleged by Nunes?
9.
Does the Article negate the implication that Nunes conspired with his
family and Rep. Steve King to conceal a “Politically Explosive Secret”; to wit, that
NuStar “runs[] on undocumented labor”?
10. Considering all the facts and circumstances attending publication of the
Article on September 30, 2018, did the District Court err when it determined that the
Article was not capable of the defamatory meaning alleged by Nunes?
11. Does the First Amendment require proof in a public-figure defamation
case that the defendant subjectively intended to convey or endorsed the defamatory
implication?
12. Did Nunes plausibly allege that the Defendants subjectively intended
to convey or endorsed the defamatory implication in the Article?
13. Is Defendants’ subjective intent an issue that can be resolved on a
motion to dismiss under Rule 12(b)(6)?

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 14. Because Nunes plausibly alleges a claim of defamation, did the District
Court err in dismissing his conspiracy claim?

DATED:

August 31, 2020

DEVIN G. NUNES

By:

/s/ Steven S. Biss
Steven S. Biss (VSB # 32972)
300 West Main Street, Suite 102
Charlottesville, Virginia 22903
Telephone: (804) 501-8272
Facsimile: (202) 318-4098
Email:
stevenbiss@earthlink.net
(Admitted Pro Hac Vice)
Joseph M. Feller, Esquire
(Iowa State Bar No. AT0002512)
Koopman, Kennedy & Feller
823 3rd Avenue
Sibley, Iowa 51249
Telephone: (712) 754-4654
Facsimile: (712) 754-2507
jfeller@kkfellerlaw.com
Counsel for Appellant

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Date Filed: 08/31/2020 Entry ID: 4951177

 CERTIFICATE OF SERVICE
I hereby certify that on August 31, 2020 a copy of the foregoing was filed
electronically using the Court’s CM/ECF system, which will send notice of
electronic filing to counsel for the Defendants and all interested parties receiving
notices via CM/ECF.

By:

/s/ Steven S. Biss
Steven S. Biss (VSB # 32972)
300 West Main Street, Suite 102
Charlottesville, Virginia 22903
Telephone: (804) 501-8272
Facsimile: (202) 318-4098
Email:
stevenbiss@earthlink.net
(Admitted Pro Hac Vice)
Joseph M. Feller, Esquire
(Iowa State Bar No. AT0002512)
Koopman, Kennedy & Feller
823 3rd Avenue
Sibley, Iowa 51249
Telephone: (712) 754-4654
Facsimile: (712) 754-2507
jfeller@kkfellerlaw.com
Counsel for Appellant

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Date Filed: 08/31/2020 Entry ID: 4951177