In a new filing (PDF) this afternoon, U.S. District Judge Richard Leon expressed his displeasure with a decision by defendants in a defamation lawsuit to appeal his denial of their motion to dismiss.
At issue is former U.S. Department of Agriculture official Shirley Sherrod's defamation lawsuit against blogger Andrew Breitbart and one of his colleagues, Larry O'Connor. Sherrod sued both men in Washington federal court in Feb. 2011, claiming they posted a deceptively edited clip of Sherrod online that eventually got her fired.
Breitbart and O’Connor moved to dismiss the case under a District of Columbia law barring strategic lawsuits against public participation, or SLAPPs. The anti-SLAPP law is designed to stop litigation aimed at chilling protected speech. Leon denied the motion in July in two-sentence minute orders. After the defendants’ appealed, the U.S. Court of Appeals for the D.C. Circuit asked Leon on Feb. 7 to explain his decision.
In the statement of reasons filed today, Leon said he denied the motion because the law, which went into effect last March, couldn’t be applied retroactively to Sherrod’s case, which was filed the month before. Even if the law could be applied retroactively, Leon wrote that the defendants missed their time window to file the motion.
“Regrettably,” Leon wrote, “it appears that the defendants will not be satisfied with this Court’s ruling until a considerable amount of additional judicial and litigant resources are expended on its ‘novel,’ if not overreaching, motion.”
Breitbart’s lead counsel, Eric Kuwana of Washington’s Katten Muchin Rosenman, declined to comment, as did a lead counsel for Sherrod, Thomas Clare of Kirkland & Ellis. A lead counsel for O’Connor, Bruce Sanford of Baker & Hostetler, could not immediately be reached.
Breitbart’s anti-SLAPP motion represents an early test of the relatively new law in federal court. Leon wrote that in cases where the court is sitting in diversity, only procedural laws can be applied retroactively. Leon found that the anti-SLAPP law is substantive because it creates new rights for defendants.
Assuming Leon bought the defendants’ argument that the law is procedural, however, he wrote that it still wouldn’t work because the court applies federal procedural laws and state substantive laws in these types of cases. A state procedural law wouldn’t apply, he wrote.
Under Leon’s analysis, the law could be used in cases filed after it went into effect, although he didn’t address that question directly. However, Leon’s colleague, U.S. District Judge Robert Wilkins, issued a 55-page opinion on Feb. 2 explaining why the law could not be used in federal court cases where the judge is sitting in diversity.
In today’s filing, Leon explained in a footnote why he did not include an opinion with his original orders. Citing a lengthy and complicated trial already pending on his docket, Leon wrote that, “unfortunately, drafting a memorandum opinion at that time…was not a realistic option.” He noted that the Federal Rules of Civil Procedure don’t require a written opinion for that type of ruling.
Leon then added, “Undaunted, defendants predictably filed an ‘interlocutory appeal’ of this Court’s order on August 19, 2011, hoping to convince our Court of Appeals…to somehow apply the Anti-SLAPP statute retroactively.”