USCA Case #11-7088 Document #1337116 Filed: 10/21/2011 Page 1 of 24 ORAL ARGUMENT NOT YET SCHEDULED No. 11-7088 United States Court of Appeals for the District of Columbia Circuit SHIRLEY SHERROD, Plaintiff-Appellee, v. ANDREW BREITBART, LARRY O’CONNOR, AND JOHN DOE, Defendants-Appellants. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CASE NO. 11-CV-00477-RJL, JUDGE RICHARD J. LEON PLAINTIFF-APPELLEE’S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY AFFIRMANCE Thomas D. Yannucci, P.C. Michael D. Jones Thomas A. Clare, P.C. KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Washington, D.C. 20005 Telephone: (202) 879-5000 Facsimile: (202) 879-5200 Counsel for Plaintiff-Appellee Shirley Sherrod October 21, 2011 USCA Case #11-7088 Document #1337116 Filed: 10/21/2011 Page 2 of 24 CERTIFICATE AS TO PARTIES Pursuant to this Court’s Circuit Rules 27(a)(4) and 28(a)(1)(A), Plaintiff- Appellee Shirley Sherrod states as follows concerning the parties to this case: (A) Parties and Amici Appellants: Defendants Andrew Breitbart and Larry O’Connor. Appellee: Plaintiff Shirley Sherrod. Intervenors: None. Amici: None. USCA Case #11-7088 Document #1337116 Filed: 10/21/2011 Page 3 of 24 Although Defendants-Appellants Andrew Breitbart and Larry O’Connor concede that this Court lacks jurisdiction to review the District Court’s interlocutory order denying their Rule 12(b)(6) motion to dismiss, they nonetheless contend that the collateral-order doctrine allows them to appeal anyway simply because they asserted the very same grounds for dismissal in a “special” Anti- SLAPP motion to dismiss. On this basis, Defendants informed the District Court that it had lost jurisdiction over all aspects of this case and refused to participate in ongoing discovery proceedings. Because Defendants are wrong on each of these scores, Plaintiff-Appellee Shirley Sherrod moves to dismiss this appeal for lack of jurisdiction so that this case—and discovery—can properly resume below. Like Rules 12(b) and 56 of the D.C. and Federal Rules of Civil Procedure, the D.C. Anti-SLAPP Act of 2010 provides a mechanism for pretrial dismissal in certain cases if the law and the facts of the case otherwise provide a basis to do so. In particular, the Act states that “[a] party may file a special motion to dismiss any claim arising from an act in furtherance of the right of advocacy on issues of public interest within 45 days after service of the claim.” D.C. Code § 16-5502(a). If the moving party “makes a prima facie showing that the claim at issue arises from an act” within the statute’s scope, then discovery is stayed and the burden shifts to the opposing party to “demonstrate[] that the claim is likely to succeed on the merits.” Id. § 16-5502(b). If the opposing party does not meet this standard, the claim is 1 USCA Case #11-7088 Document #1337116 Filed: 10/21/2011 Page 4 of 24 dismissed and the court may award the moving party “the costs of litigation, including reasonable attorney fees.” Id. § 16-5504(a). None of these “special” features provides an affirmative ground for dismissal (such as the “opinion” defense Defendants actually asserted in each of their motions as the sole basis for dismissal). None amounts to a true “right not to stand trial,” as required for immediate appeal under the collateral-order doctrine. Will v. Hallock, 546 U.S. 345, 351 (2006). And none justifies Defendants’ transparent effort to circumvent the Supreme Court’s repeated admonition that “the ‘small class’ of collaterally appealable orders” must be kept “narrow and selective in its membership.” Id. at 350. Although Defendants would like this Court to recognize a new, categorical right to immediate appellate review that would throw open the Court’s doors each and every time the District Court below denies an Anti-SLAPP motion, there is no basis to do so—and for good reason. The final- judgment rule would not be much of a rule at all if any and every supposed “advoca[te] on issues of public interest” could immediately appeal an otherwise unappealable ground for dismissal simply because he included a carbon copy of his argument in a “special” motion to dismiss. But that is precisely what Defendants hope to do here. Alternatively, what the Act’s “special” features do provide is a settled basis for summary affirmance if this Court ultimately concludes that it has jurisdiction. 2 USCA Case #11-7088 Document #1337116 Filed: 10/21/2011 Page 5 of 24 Defendants do not dispute that the Anti-SLAPP Act was not in effect when Plaintiff filed her Complaint, and they cannot reasonably dispute that its application would have substantive consequences (by heightening Plaintiff’s threshold burden and by allowing an award of fees and costs). Nevertheless, Defendants contend that the statute applies retroactively here. Defendants are wrong on this score, too. Because the Act does not clearly state that it is retroactive, it cannot apply to Plaintiff’s pending case as a matter of longstanding D.C. law. On this threshold basis alone, the District Court’s denial of Defendants’ Anti-SLAPP motion was entirely proper, and this Court should summarily affirm that decision if it does not otherwise dismiss this appeal for lack of jurisdiction.1 FACTUAL AND PROCEDURAL BACKGROUND This case arises out of Defendants’ publication of the blog post Video Proof: The NAACP Awards Racism–2010, in which they used deceptively edited video clips and false written statements to assert that Plaintiff racially discriminated against a white farmer in her position as a USDA official. Although the blog post purported to publish “video proof” of Plaintiff’s discrimination, the short video clips that Defendants embedded were, in truth, edited excerpts from a much longer speech by Plaintiff demonstrating exactly the opposite. Compl. ¶ 3 (Ex. 1). In 1 Although Plaintiff disputes that the Act can apply on its terms in federal court given the breadth of Rules 12 and 56, see Hanna v. Plumer, 380 U.S. 460, 473 (1965), she assumes for purposes of this motion that it does, as Defendants assert. 3 USCA Case #11-7088 Document #1337116 Filed: 10/21/2011 Page 6 of 24 particular, the unabridged speech described how Plaintiff, while working for a non- profit group in 1986, helped a white farmer who otherwise almost certainly would have lost his farm. Id. Defendants, however, drew false support from the edited video clips to assert (among other falsehoods) that they were “video evidence of racism coming from a federal appointee and NAACP award recipient” given that “Mrs. Sherrod admits that in her federally appointed position, overseeing over a billion dollars ... [s]he discriminates against people due to their race.” Id. ¶ 4. Because Defendants used the Internet to publish the edited video and false statements to a worldwide audience, news of the blog post spread quickly. Media outlets across the country immediately and repeatedly aired the misleading video clips and echoed Defendants’ defamatory claims. Within hours, Plaintiff’s supervisors at USDA demanded her resignation. Eventually, the NAACP published the full video of Plaintiff’s speech, leading to apologies from senior government officials and the news media. Defendants, however, have not apologized and instead stand by their false statements. Indeed, the blog post remains accessible on Mr. Breitbart’s website to this day. Defendants’ defamatory conduct has caused enduring damage to Plaintiff’s reputation, as well as emotional distress and financial damages from the loss of her employment at the USDA. On February 11, 2011, Plaintiff filed her Complaint in the Superior Court for the District of Columbia against Defendants and the unidentified individual (sued 4 USCA Case #11-7088 Document #1337116 Filed: 10/21/2011 Page 7 of 24 as JOHN DOE) who provided the video clips to them, alleging claims for defamation, false-light invasion of privacy, and intentional infliction of emotional distress. On March 4, 2011, Defendants removed the case to the District Court. On April 18, 2011, Defendants jointly filed two motions in response to the Complaint. First, they filed a Rule 12(b) motion to dismiss or, in the alternative, to transfer. See Defs.’ Rule 12(b) Mem. (Ex. 2). As relevant here, the Rule 12(b)(6) section of the motion argued that the textual statements in the blog post were “non- actionable opinion” and thus failed to state a claim. Id. at 28-44. The motion did not, however, challenge the defamatory nature of the deceptively edited video clips themselves, which independently defamed Plaintiff, cast her in a damaging false light, and intentionally inflicted emotional distress. Compl. ¶¶ 45, 93(a). Second, Defendants filed a motion to dismiss based on the Anti-SLAPP Act, even though the Act did not become effective until March 31, 2011—nearly two months after Mrs. Sherrod filed her complaint. See Defs.’ Anti-SLAPP Mem. (Ex. 3). Defendants asserted that the Act applied retroactively and that it applied in federal court under the Erie doctrine. They also asserted that Plaintiff’s claims were within the statute’s scope. But with respect to Plaintiff’s likelihood of success on the merits, Defendants simply “incorporate[d] the relevant sections of Defendants’ Rule 12(b)(6) Motion herein.” Id. at 7. They did not seek dismissal on any other ground. See id. at 2. 5 USCA Case #11-7088 Document #1337116 Filed: 10/21/2011 Page 8 of 24 Plaintiff opposed both motions. As to the Anti-SLAPP motion, Plaintiff explained that the Act did not retroactively apply to her pending claims because the Act contained substantive elements but not the corresponding clear language required to overcome the presumption against retroactivity as a matter of D.C.