D.C. Court of Appeals Agrees To Hear Merits of Anti-SLAPP Appeal In Michael Mann's Defamation Case

In our last episode of the saga of Michael Mann's defamation suit against National Review, Mark Steyn, the Competitive Enterprise Institute, and Rand Simberg, I explained that the matter was wrapped in a dry, but crucial, procedural issue: the District of Columbia Court of Appeal was faced with whether a defendant who loses a motion under D.C.'s anti-SLAPP law may appeal immediately, or must wait until the end of the case.

As I argued, the strategic implications are dire for defamation plaintiffs and defendants: if anti-SLAPP denials are not immediately appealable than much of the value of the statute is lost to defendants, but if they are immediately appealable then defendants may often delay defamation cases for years.

On Wednesday1 the D.C. Court of Appeal decided to decide, probably. That is, they issued an order denying Mann's motion to dismiss the appeal, and accepting all of the amicus briefs on the issue, and directing the parties to brief the issue of appealability along with the merits of the anti-SLAPP issue. On the one hand, this signifies that the Court didn't think that the procedural issue was completely obvious, and therefore didn't dismiss the appeal or accept it without reservation. On the other hand, the Court still wants to hear more arguments about whether it should be hearing more arguments. The Court also ordered that the appeal be expedited, which means something somewhat different than you or I mean when we say "expedited."

The upshot: the defendants (save for Mr. Steyn, who apparently is not joining this appeal) will get to brief their arguments that Mann's lawsuit should have been dismissed under D.C.'s anti-SLAPP statute. Mann will get to re-make his argument that the appeal should be dismissed because the defendants shouldn't be able to appeal until the end of the case. The Court will then either punt by dismissing the appeal as premature, or agree that D.C. anti-SLAPPs are immediately appealable and address the anti-SLAPP merits.

Stay tuned. The First Amendment and anti-SLAPP issues in the case are very important, and I hope the Court reaches them.

  1. It happened on Wednesday, but you did not hear it on Wednesday, or Thursday, because the D.C. Court of Appeals does not have online dockets or email notifications. The D.C. Court of Appeals is strictly an 8-track tape kind of institution.  

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  1. Zach says

    You say, "The Court also ordered that the appeal be expedited, which means something somewhat different than you or I mean when we say 'expedited.'" Could you elaborate on this? I am curious.

  2. ketchup says

    The D.C. Court of Appeals is strictly an 8-track tape kind of institution.

    I have been looking for some new listening material for my 8-track player. How can I request a copy of the D.C. Court's notifications? Is there a web form I can fill out, or must I send my request via a rider on the *expletive deleted* Express?

  3. Pouncer says

    I would presume Steyn and his new team of first amendment advocates would file an amicus brief in favor of strengthening anti-SLAPP processes.

    It is also bad form, in my conservative opinion, for jurists to legislate. But I wish the legislators would reconsider the law to build in expedition. The lower court ruling on the anti-SLAPP question seemed to be based (to the extent it targeted the correct defendents) on a presumption that the plaintiff's accusations could and would be proven true. Seems to me that vitiates anti-SLAPP right there. I pick my political opponent's annoying speech, I accuse that his annoying phrase is defamation per se , and the judge, apparently, must assume my accusation — for the SLAPP question — to be valid.

    It's not at all clear to me how the balance of burden of proof should be apportioned for this purpose, but it does seem clear that the existing presumption as applied by the bench of first impression on this case hasn't simplified the dispute in the manner the legislators hoped.

  4. Dion starfire says

    So, the appeals court is hearing arguments about whether or not it should hear arguments now, or wait until later?

    This is right up there with "the debt's not valid the money he gave me was for a drug deal" in the lists of dumbest things said in court.

    btw, good job on balancing the "are you shitting me?" nature of the case with the factual details behind it.

    I hope the judges have asked themselves that question at least once. Sort of an "in our defense we really do know we're idiots" kind of thing.

  5. David C says

    @Dion: It makes very little sense for this case – they could probably just hear the appeal instead of this sideline in about the same amount of time – but it makes sense in the long run. They do need to straighten out whether it's appropriate to hear the appeal now or not, because this issue is going to come up in every single case where SLAPP is appealed in that district.

  6. wolfefan says

    In clicking through various links I saw that the Sherrod lawsuit against Bretibart and the Big Government site was likely to come up for review on this issue. I didn't see any more about it – did that suit end with Bretibart's death or is it continued on to those who are still running his various sites?

  7. says

    The Sherrod vs. Breitbart is in US Federal Court (the Federal Court for the Federal District), the Mann vs. Steyn, et al, is in US District Court (the Federal Court for the District of Columbia). Eli enjoyed that muchly, many thanks.

    However the difference is real, and the cases are effectively in different court systems.

  8. says

    If Eli were a betting bunny, which he is not, he would bet that the DC Court of Appeals rules against the defendants if only to avoid the contradictions that would ensue from its earlier ruling on the powers of the DC Council. To hold for the defendants and reach the merits would involve conjuring up a right that the court specifically denied the council or making up the law themselves.

    Sorry about that

  9. Castaigne says

    Good. I am glad that the court decided to get this issue taken care of. Clear procedure is necessary for law to proceed as it should.

  10. cpast says


    No, this case is in the DC court system. There are federal courts for the District of Columbia, which are run by the federal government, but there are also courts run by the DC government, and this case is in the latter (DC Superior Court and DC Court of Appeals). They aren't part of the US federal court system. The Sherrod case *is* in federal court: the US District Court for the District of Columbia/the US Court of Appeals for the DC Circuit. There is no "Federal District" court; there's a federal *circuit*, but they handle specialized cases, and aren't geographical in scope.

    Tl;dr: There are too many courts in DC.

  11. says

    cpast – all courts in DC are federal and all judges are appointed by the President and confirmed by the Senate. The Mann case is in the Superior Court, which is the local one and the appeal is in the DC Court of Appeals. The Sherrod case is in the Federal District Court and appeals would go to the Court of Appeals for the Federal Circuit.

    BTW there is an interesting question as to whether the DC Anti-SLAPP law applied in the Federal District Court.


    Why Mann filed in the Superior Court is an interesting question.

  12. cpast says

    Why would Sherrod go to the Federal Circuit, not the DC Circuit?

    Also, looks like I was wrong about the DC courts being run by the DC government – you're correct that the judges are appointed by the President and confirmed by the Senate.

  13. Joe Blow says

    The first amendment aspects of this are interesting, but what really matters is oh boy, are some lawyers going to rack up some billable hours on this bit of Torture-by-Litigation. Wouldn't mind having a piece of that action…

  14. says

    Sherrod was a federal government employee and the case had national coverage and implications. Also, whether the DC anti-SLAPP law applies in the Federal Court is a matter of hot dispute these days, so they may have thought that they could more easily avoid an anti-SLAPP motion.

    Anyhow, that kind of venue shopping is what lawyers do for you.

  15. MJW says

    Eli Rabett : Sherrod was a federal government employee and the case had national coverage and implications. Also, whether the DC anti-SLAPP law applies in the Federal Court is a matter of hot dispute these days, so they may have thought that they could more easily avoid an anti-SLAPP motion.

    I don't think that's correct. I think the case was originally filed in DC Superior Court and "removed" to federal court by the defendant. As I understand it, if none of the defendants in a case reside in the same state as any of the plaintiffs (which is referred to as "complete diversity"), and the amount in controversy is sufficiently large, the defendants can remove a state (or DC) civil case to federal court. The purpose is to reduce the home-field advantage a plaintiff might get by suing an out-of-state defendant in the plaintiff's home state. (I don't know why Mann's lawsuit wasn't removed to federal court.)

  16. cpast says

    Eli: The Federal Circuit and the DC circuit are separate. If Sherrod was suing the United States, that goes to the Federal Circuit. Patent cases go to the federal circuit. But "national implications" don't imply Federal Circuit; appeals from the DC federal district court almost always go to the DC Circuit, not the Federal Circuit. They're different courts, with zero overlap in judges (see above, "DC has too many courts")

  17. says

    One interesting wrinkle: residents of DC are not residents of any "state" for diversity purposes. Hepburn v. Ellzey, 6 US 445 (1805).

  18. MJW says

    I believe Congress has since included DC residents under the diversity umbrella, and its power to do so was upheld in National Ins. Co. v. Tidewater Co., 337 US 582 (1949).

  19. MJW says

    Though this is a rather dead thread, I thought I'd note that D.C. Anti-SLAPP Law blog has a May 30 article on a DC Court of Appeals' decision that a special motion to quash under the anti-SLAPP is immediately appealable, and the motion to quash should have been granted in Burke v. Doe. The issue here is different from the issue of whether a denial of dismissal should be immediately appealable. The question in Burke v. Doe was whether the defendant could remain anonymous. Nevertheless, as Les Machado observes, some of the reasoning that led the court to its conclusion would seem to also apply to the denial issue.

  20. MJW says

    Adding to my previous comment.

    Though the DC Court of Appeals' decision is probably good news for the defendants in Mann's suit, the issue in Burke was more clear cut. Revealing the identity of a speaker who wishes to remain anonymous is the quintessential example of a matter that can't be cured by an appeal following the trial. I believe that the evil the anti-SLAPP law is designed to prevent — punishment through the discovery and trial processes rather than the ultimate result of the trial — is likewise an issue that can't be cured by a post-trial appeal, but it isn't as obviously so.

  21. MJW says

    Interesting footnote in the opinion:

    Citing Englert v. MacDonell, 551 F.3d 1099, 1105 (9th Cir. 2009), Ms. Burke argues that because the District‟s Anti-SLAPP statute does not explicitly provide for the immediate appeal of the denial of a special motion to quash, the Council must not have believed that anonymity was an important value worthy of such protection. But because of the limitations placed on the D.C. Council under the Home Rule Act, we conclude that the D.C. Council‟s failure to codify an immediate appeal provision for the denial of a special motion to quash cannot reasonably be analogized to the Oregon legislature‟s failure to create an immediate appeal in Englert. Congress created the current District of Columbia Courts system, defined the jurisdiction of the District‟s courts, and prohibited the Council from legislating to expand (or contract) their jurisdiction. Although what constitutes an improper expansion of jurisdiction has been the subject of some dispute in this court, it is clear that this court possesses the sole power to interpret D.C. Code § 11-721, our jurisdiction-conferring statute. It was for these reasons that the Council, which originally sought to create a right of immediate appeal for special motions to dismiss, see Comm. Report at 7, deleted this provision. We therefore read little into the absence of a provision that the Council may not have been empowered to include in the first place.