A major legal test for the District’s young anti-SLAPP act is underway: A U.S. Court of Appeals panel heard arguments Friday morning on whether the law aimed at combating “strategic lawsuits against public participation” applies in the federal courts.
The case at issue is the defamation suit filed in 2011 by former federal agriculture official Shirley Sherrod against now-deceased conservative newsman Andrew Breitbart. Lawyers for Breitbart filed a motion last year to have the case dismissed pursuant to the anti-SLAPP act, which allows defendants to kill a case before the costly discovery phase of litigation and potentially recover costs and attorney fees.
The Sherrod case, along with a number of other cases under litigation, have raised the issue of whether the local law can apply in the federal courts here — a crucial test for the D.C. law, which has been invoked in numerous cases involving, among others, Redskins owner Dan Snyder, D.C. Chief Financial Officer Natwar M. Gandhi and Esquire Magazine. Federal applicability was among the issues raised by Sherrod’s lawyers in their response to the Breitbart motion to dismiss. (The Washington Post has joined friend-of-the-court briefs in related cases seeking to preserve the law in federal court.)
But the judges made it clear Friday that more superficial matters complicate Breitbart’s appeal, making it possible that the court could deny the appeal without ruling on whether the anti-SLAPP act is viable in federal court. Among those issues: Sherrod filed her lawsuit before the anti-SLAPP law even went into effect, raising the question of whether it can apply to cases already in litigation. There is also a dispute over whether Breitbart filed the motion within the 45-day window set out out in the D.C. law.
Bruce D. Brown, who argued the appeal for Breitbart, said that the trial judge granted extensions to that deadline. But Judge A. Raymond Randolph, in particular, wasn’t buying that line of argument, telling Brown that judges may not extend statutory deadlines, only procedural ones. “You didn’t file within the 45 days, and you don’t have an extension,” Randolph said flatly.
Another judge on the panel of three, Thomas B. Griffith, offered Brown a lifeline, suggesting that the deadline should be counted from the date when the case was refiled in federal court rather than the date of the original filing in Superior Court — putting the filing within the 45-day window: “You want to try that one again?” he asked.
A lively discussion ensued over whether the anti-SLAPP law conflicts with the federal rules of civil procedure — an argument pressed vigorously by Sherrod lawyer Thomas Yannucci — though that discussion was more analytic in tone than Randolph’s skeptical treatment of Brown’s timeliness arguments. The judges also heard arguments in defense of the anti-SLAPP act’s applicability in federal court from Ariel Levinson-Waldman, senior counsel in the D.C. Office of the Attorney General, and, by and large, did not challenge them during questioning.