by Paul Alan Levy
In a relatively
brief opinion issued this morning, the DC Circuit has affirmed the trial court's refusal to strike Shirley Sherrod's libel action against bloggers Breitbart nd O'Connor, but on the narrowest possible ground that should not have any adverse long-term impact on future anti-SLAPP motions.
After canvassing the way in which various other courts of appeals have treated the appealability of antiSLAPP denials under the collateral order doctrine, the court punted that issue on the ground that the jurisdictonal issue was sufficiently difficult, and the merits were so easily decided, that the ruling below should be affirmed on that ground. The court then held that the anti-SLAPP motion had been filed untimely, in that the DC anti-ASLAPP law sets a firm deadline for filing such motions and that, under D.C. Circuit precedent, statutory deadlines cannot be extended under Federal Rule 6(b) and therefore the district court's granting of a consent motion to extend the time to answer did not effectively defer the statutory deadline. The court therefore did not have occasion to decide whether the DC Anti-SLAPP law applies in federal courts under the Erie doctrine.
Public Citizen had filed an amicus brief, authored by Julie Murray, arguing that the court had appellate jurisdiction under the collateral order doctrine, and that the anti-SLAPP law applies under Erie.