Sherrod v. Breitbart

• Decision Date: 25 June 2013
• Docket Number: No. 11–7088.,11–7088.
• Citation: 720 F.3d 932
• Parties: Shirley SHERROD, Appellee v. Andrew BREITBART and Larry O'Connor, Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

720 F.3d 932

Shirley SHERROD, Appellee

v.Andrew BREITBART and Larry O'Connor, Appellants.

No. 11–7088.

United States Court of Appeals,District of Columbia Circuit.

Argued March 15, 2013.

Decided June 25, 2013.

Appeal from the United States District Court for the District of Columbia (No. 1:11–cv–00477).

Bruce D. Brown argued the cause for appellant Larry O'Connor. With him on the briefs were Bruce W. Sanford and Mark I. Bailen. Eric Kuwana entered an appearance.

Laura R. Handman, Micah J. Ratner, Jonathan R. Donnellan, Kristina E. Findikyan, David E. McCraw, Kurt Wimmer, Gregg P. Leslie, and Eric N. Lieberman were on the brief for amici curiae Media Organizations, et al. in support of appellants.

Ariel B. Levinson–Waldman, Senior Counsel to the Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for amicus curiae District of Columbia. With him on the brief were Irvin B. Nathan, Attorney General, and Todd S. Kim, Solicitor General.

Thomas D. Yannucci argued the cause for appellee. With him on the brief were Michael D. Jones and Thomas A. Clare. Peter A. Farrell and Beth A. Williams entered appearances.

Julie A. Murray, Paul Alan Levy, and Arthur B. Spitzer were on the brief for amici curiae Public Citizen, Inc., et al. in support of neither party.

Before: BROWN and GRIFFITH, Circuit Judges, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge RANDOLPH.

Concurring opinion filed by Circuit Judge GRIFFITH.

RANDOLPH, Senior Circuit Judge:

This is an appeal from an order of the district court denying defendants' motion to dismiss under the District of Columbia's Anti–SLAPP Act of 2010. D.C.Code § 16–5501 et seq. The district court's jurisdiction rested on diversity of citizenship. 28 U.S.C. § 1332. The court gave three reasons for its order: the D.C. statute is inapplicable in federal court under the Erie doctrine, see Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); the D.C. statute was not effective at the time the complaint was filed and was not retroactive; and defendants' motion under the statute was untimely. Sherrod v. Breitbart, 843 F.Supp.2d 83 (D.D.C.2012).

SLAPP stands for “strategic lawsuits against public participation” and refers to suits “aimed to punish or prevent the expression of opposing points of view.” Comm. on Pub. Safety & the Judiciary, Rep. on B. 18–893, at 1 (D.C. 2010). The D.C. anti-SLAPP Act, which became effective March 31, 2011, was intended to “allow a defendant to more expeditiously, and more equitably, dispense” with such a suit. Id. It provides that a moving party is entitled to dismissal of the complaint upon a prima facie showing that the claim arises from conduct protected by the statute, unless the responding party demonstrates a likelihood of success on the merits. D.C.Code §§ 16–5501, 16–5502.

The first question is whether we have appellate jurisdiction. The question presented itself because the district court's order was not a final judgment ending the action. See28 U.S.C. § 1291. Defendant O'Connor invokes the collateral order doctrine.¹See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). This confers appellate jurisdiction over “district court decisions that are conclusive, that resolve important questions completely separate from the merits, and that would render such important questions effectively unreviewable on appeal from final judgment in the underlying action.” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994).

Other courts of appeals have considered whether the collateral order doctrine permits review of interlocutory appeals from denials of motions to dismiss under state anti-SLAPP statutes. In Batzel v. Smith, 333 F.3d 1018 (9th Cir.2003), the Ninth Circuit held that “[b]ecause California law recognizes the protection of the anti-SLAPP statute as a substantive immunity from suit, this Court, sitting in diversity, will do so as well.” Id. at 1025–26. It then concluded that it had jurisdiction over the appeal because “[a] district court's denial of a claim of immunity, to the extent that it turns on an issue of law, is an appealable final decision within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Id. at 1026;see also DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1013–16 (9th Cir.2013); Hilton v. Hallmark Cards, 599 F.3d 894, 900 (9th Cir.2010).

But the Ninth Circuit also held that district court orders denying motions to dismiss under Nevada's and Oregon's anti-SLAPP statutes were not final orders and were not appealable under the collateral order doctrine. See Metabolic Research, Inc. v. Ferrell, 693 F.3d 795, 800–02 (9th Cir.2012); Englert v. MacDonell, 551 F.3d 1099, 1105–07 (9th Cir.2009). The Englert court concluded that Oregon's statute “was not intended to provide a right not to be tried, as distinguished from a right to have the legal sufficiency of the evidence underlying the complaint reviewed by a nisi prius judge before a defendant is required to undergo the burden and expense of a trial.” Englert, 551 F.3d at 1105. The court's conclusion was “based on the failure of the Oregon anti-SLAPP statute to provide for an appeal from an order denying a special motion to strike.” ²Id. The Ninth Circuit used the same reasoning in Metabolic Research, holding that “Nevada's anti-SLAPP statute is more like Oregon's at the time we decided Englert ” because “unlike California's, it does not furnish its citizens with immunity from trial,” 693 F.3d at 801, and “[a] legislatively approved immunity from trial, as opposed to a mere claim of a right not to be tried, is imbued with a significant public interest,” id. at 800.

The First Circuit determined it had jurisdiction under the collateral order doctrine over “an order that a state anti-SLAPP statute does not apply at all to federal court proceedings due to [a direct conflict with] Federal Rules 12 and 56.” Godin v. Schencks, 629 F.3d 79, 84 (1st Cir.2010). The court found that “[i]t is relevant, but not conclusive” that Maine's anti-SLAPP statute, as interpreted by the state supreme court, permits interlocutory appeals of orders denying special motions to dismiss, because it demonstrates that Maine's legislature “wanted to protect speakers from the trial itself rather than merely from liability.” Id. at 85 (quoting Batzel, 333 F.3d at 1025). The court used this determination to reach its ultimate conclusion that “the order at issue here involves ‘an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.’ ” Id. (quoting Lauro Lines s.r.l. v. Chasser, 490 U.S. 495, 499, 109 S.Ct. 1976, 104 L.Ed.2d 548 (1989)).

The Fifth Circuit also decided that an order denying a motion to dismiss under Louisiana's anti-SLAPP statute is immediately appealable under the collateral order doctrine, in part because the statute “provides a right not to stand trial, as avoiding the costs of trial is the very purpose of the statute.” Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 178 (5th Cir.2009). The court recognized that “[l]ike Oregon's anti-SLAPP statute, Article 971 does not include a provision expressly authorizing immediate appeal.” Id. at n. *. It attempted to harmonize this apparent departure from the Ninth Circuit's reasoning by noting that Louisiana's courts “allow immediate appeals through writs of supervision.” Id.

With respect to the D.C. anti-SLAPP Act, the statute's text contains no provision for interlocutory appeals. The D.C. Council's Committee on Public Safety and the Judiciary explained in its legislative report that it had removed such a provision, included in the original bill, because of a decision of the D.C. Court of Appeals that the Council could not expand the appellate jurisdiction of the District's courts over appeals of non-final orders. Comm. on Pub. Safety & the Judiciary, Rep. on B. 18–893, at 7 (citing Stuart v. Walker, 6 A.3d 1215, 1218–19 (D.C.2010)). The committee expressed its strong support for the excised provision, which “would have provided an immediate appeal over a non-final order (a special motion to dismiss),” and for the view of the dissenting opinion in Stuart that the Council had the authority denied by the majority. Id.

Stuart held that “[w]hen read in conjunction with the definition of our jurisdiction in D.C.Code § 11–721(a)(1) as being over ‘final orders,’ a plain reading of § 602(a)(4) of the Home Rule Act is that the D.C. Council cannot enact any legislation affecting the finality of orders for purposes of appealability to this court, or attempt to modify this court's jurisdiction in any other way.” Stuart, 6 A.3d at 1217 n. 3. The D.C. Court of Appeals vacated the decision and granted a petition for rehearing en banc. Stuart v. Walker, 30 A.3d 783 (D.C.2011). The en banc court issued an unpublished judgment stating that “as the en banc court is equally divided regarding the issue of jurisdiction ... the trial court's order directing the parties to proceed with arbitration remains in full force and effect.” Stuart v. Walker, No. 09–CV–900 (D.C. Feb. 16, 2012) (unpublished judgment).

The D.C. Court of Appeals issued an order in another case dismissing an interlocutory appeal under the anti-SLAPP Act because “[t]he subject order is not appealable under the collateral order doctrine, see Cohen v. Beneficial Loan Corp., 3[3]7 U.S. 541, 546 [69 S.Ct. 1221, 93 L.Ed. 1528] (1947), and the District's anti-SLAPP statute does not provide for interlocutory review. See, e.g., Englert v. MacDonell, 551 F.3d 1099 (9th Cir.2009).” Newmyer v. Sidwell Friends Sch., No. 12–CV–847 (D.C. Dec. 5, 2012) (unpublished order). The significance of this terse, unpublished order is unclear.

Rather than resolving the issues relating to application of the collateral order doctrine, we shall assume...