Banks v. Hoffman

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 20-CV-0318

MORGAN BANKS, et al., APPELLANTS,

V.

DAVID H. HOFFMAN, et al., APPELLEES.

Appeal from the Superior Court

of the District of Columbia

(2017-CA-005989-B)

(Hon. Hiram E. Puig-Lugo, Motions Judge)

(Argued April 20, 2022 Decided September 7, 2023)

Bonny J. Forrest, of the bars of the States of New York and California, pro

hac vice, by special leave of the court, with whom Kirk Jenkins and John B.

Williams were on the brief, for appellants L. Morgan Banks, III, Debra L. Dunivin,

and Larry C. James.

James C. McKay, Jr., Senior Assistant Attorney General, for appellee

District of Columbia. Karl A. Racine, Attorney General for the District of

Columbia at the time, Loren L. AliKhan, Solicitor General at the time, Caroline S.

Van Zile, Principal Deputy Solicitor General at the time, Carl J. Schifferle, Deputy

Solicitor General, and Mark S. Wigley, Assistant Attorney General, were on the

brief for appellee District of Columbia.

Barbara S. Wahl, with whom Randall A. Brater and Michael F. Dearington

were on the brief, for appellee American Psychological Association.

Thomas G. Hentoff, with whom John K. Villa, Stephen J. Fuzesi, Krystal C.

Durham and Matthew J. Greer were on the brief, for appellees David H. Hoffman,

Sidley Austin, LLP, and Sidley Austin (DC), LLP.

2

Before BLACKBURNE-RIGSBY, Chief Judge, HOWARD, Associate Judge, and

THOMPSON, Senior Judge.

THOMPSON, Senior Judge: This matter is an appeal from the Superior

Court’s dismissal of a defamation action pursuant to the special-motion-to-dismiss

provisions of the District of Columbia Anti-SLAPP Act. 1 In challenging the

dismissal, plaintiffs/appellants argue inter alia that the D.C. Anti-SLAPP Act is

invalid because its enactment violated the District of Columbia Home Rule Act

(the “Home Rule Act”). 2 For the reasons set out below, we agree that the Home

Rule Act, and in particular its preservation of Title 11 of the D.C. Code, precluded

the Superior Court from giving effect to the discovery-limiting aspects of the D.C.

Anti-SLAPP Act’s special-motion-to-dismiss provisions. Accordingly, we reverse

the judgment of dismissal and remand for further proceedings consistent with this

opinion. In light of the discovery limitations the Superior Court implemented, we

1

Formally, the District of Columbia Anti-Strategic Lawsuits Against Public

Participation Act (hereafter referred to as the “D.C. Anti-SLAPP Act,” the “Anti-

SLAPP Act,” or the “Act”), D.C. Code §§ 16-5501–16-5505.

2

District of Columbia Self Government and Governmental Reorganization

Act, Pub. L. No. 93-198, 87 Stat. 774 (1973), codified at D.C. Code §§ 1-201.01-1-

207.71.

3

also vacate the court’s rulings on the “public official” and “republication” issues

discussed below and remand as to those issues as well.

I. Introduction

A. Procedural Background

Plaintiffs/appellants are Col. (Ret.) L. Morgan Banks, III, Col. (Ret.) Debra

L. Dunivin, and Col. (Ret.) Larry C. James. All three are retired military

psychologists who were mentioned prominently in a report (“the Report”),

published in 2015 on the American Psychological Association (“APA”) website,

concluding that certain APA officials colluded with the U.S. Department of

Defense (“DoD”) “to support the implementation by DoD of the interrogation

techniques [directed at persons detained following the events of September 11,

2001] that DoD wanted to implement without substantial constraints from APA”

ethical guidelines. The Report identifies each of the appellants by name as a key

participant in the alleged collusion. Appellants filed the underlying action for

defamation per se, defamation by implication, and false light invasion of privacy in

2017, naming as defendants the APA, which authorized and financed the Report;

David H. Hoffman, the lead of a team of lawyers who conducted the underlying

4

investigation and prepared the Report; and the law firm in which Hoffman is a

partner, Sidley Austin LLP, and its affiliated entity Sidley Austin (DC) LLP

(together, “Sidley”). 3

The APA, Hoffman, and Sidley filed special motions to dismiss the lawsuit

pursuant to the D.C. Anti-SLAPP Act. See D.C. Code § 16-5502(a). In response,

appellants moved to declare the Anti-SLAPP Act void as in contravention of the

Home Rule Act, and as unconstitutional under the First Amendment right to

petition for redress of grievances. The District of Columbia intervened to defend

the Anti-SLAPP Act legislation. In two separate orders, the Superior Court first

denied appellants’ motion to declare the Anti-SLAPP Act violative of the Home

Rule Act and unconstitutional, and then granted appellees’ special motions to

dismiss, finding that appellants had failed to show that they were likely to succeed

on the merits of their defamation and related claims.

Appellants now seek reversal of the Superior Court’s orders on five grounds:

(1) enactment of the D.C. Anti-SLAPP Act violated the Home Rule Act because it

3

Originally, five plaintiffs filed suit, but two of them were referred to

arbitration pursuant to their employment contracts with the APA. Those former

plaintiffs are Dr. Stephen Behnke and Dr. Russell Newman.

5

is a legislative enactment with respect to Title 11 of the D.C. Code, which is

beyond the authority the Home Rule Act conferred on the Council of the District of

Columbia (the “Council”), and because the Act’s special-motion-to-dismiss

procedure squarely conflicts with the mandate Congress set out in section 946 of

Title 11 (D.C. Code § 11-946); (2) the D.C. Anti-SLAPP Act is unconstitutional

because it impairs exercise of the First Amendment right to petition for redress of

grievances; (3) the Superior Court reached its determination that appellants were

not likely to succeed on the merits of their claims by erroneously treating

appellants as “public officials,” who can prevail on a claim of defamation only by

showing that the defendants acted with actual malice; (4) even if the actual-malice

standard applies, appellants came forward with evidence sufficient to permit a

reasonable jury to find, by clear and convincing evidence, that appellees acted with

actual malice in publishing the statements in issue; and (5) the Superior Court erred

in ruling that the APA did not “republish” the Report in August 2018.

B. The D.C. Anti-SLAPP Act

The legislative history of the D.C. Anti-SLAPP Act describes a SLAPP — a

strategic lawsuit against public participation — as an action “‘filed by one side of a

political or public policy debate aimed to punish or prevent the expression of

6

opposing points of view.’” Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1226

(D.C. 2016) (quoting Council of the District of Columbia, Report of Comm. on

Pub. Safety and the Judiciary on Bill 18-893, at 1 (Nov. 18, 2010) (hereinafter, the

“Report on Bill 18-893”)). In enacting the D.C. Anti-SLAPP Act in 2010, the

Council joined nearly 40 other jurisdictions that had already adopted or were

considering the adoption of anti-SLAPP legislation. Report on Bill 18-893 at 3. In

the words of the Committee on Public Safety, the Act “incorporates substantive

rights with regard to a defendant’s ability to fend off” SLAPPs, so as to “allow a

defendant to more expeditiously, and more equitably, disp[ose] of a SLAPP.” Id.

at 1, 3.

The Anti-SLAPP Act’s provisions at issue in this case are codified at D.C.

Code §§ 16-5502 and 16-5504(a). Section 16-5502 provides that:

(a) 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.

(b) If a party filing a special motion to dismiss

under this section makes a prima facie showing that the

claim at issue arises from an act in furtherance of the

right of advocacy on issues of public interest, then the

motion shall be granted unless the responding party

demonstrates that the claim is likely to succeed on the

merits, in which case the motion shall be denied.

(c)

7

(1) Except as provided in paragraph (2) of this

subsection, upon the filing of a special motion to dismiss,

discovery proceedings on the claim shall be stayed until

the motion has been disposed of.

(2) When it appears likely that targeted discovery

will enable the plaintiff to defeat the motion and that the

discovery will not be unduly burdensome, the court may

order that specified discovery be conducted. Such an

order may be conditioned upon the plaintiff paying any

expenses incurred by the defendant in responding to such

discovery.

(d) The court shall hold an expedited hearing on

the special motion to dismiss, and issue a ruling as soon

as practicable after the hearing. If the special motion to

dismiss is granted, dismissal shall be with prejudice.

D.C. Code § 16-5502(a)-(d).

Construing the “likely to succeed on the merits” standard of § 16-5502(b),

this court has held that it is “substantively the same” as the summary judgment

standard under Rule 56 of the Federal Rules of Civil Procedure. Mann, 150 A.3d

at 1238 n.32 (stating that the “likelihood of success standard . . . simply mirror[s]

the standards imposed by Federal Rule 56” (internal quotation marks and citation

omitted)). 4 At the same time, “the special motion to dismiss is different from

4

“[T]he standard to be employed by the court in evaluating whether a claim

is likely to succeed may result in dismissal only if the court can conclude that the

claimant could not prevail as a matter of law, that is, after allowing for the

8

[Rule 56] summary judgment in that it imposes the burden on plaintiffs and

requires the court to consider the legal sufficiency of the evidence presented before

discovery is completed,” id., and because, under § 16-5502(c), “the decision to

grant or deny targeted discovery rests within the trial court’s broad discretion,”

Fridman v. Orbis Bus. Intel. Ltd., 229 A.3d 494, 513 (D.C. 2020). In addition, the

Anti-SLAPP Act’s “reversal of the allocation of burdens for dismissal” relieves the

special-motion-to-dismiss movant from “shoulder[ing] the initial burden of

showing that there are no material facts genuinely in dispute and that the movant is

entitled to judgment as a matter of law on the undisputed facts.” Mann, 150 A.3d

at 1237.

D.C. Code § 16-5504(a) provides in relevant part that “[t]he court may

award a moving party who prevails, in whole or in part, on a motion brought under

§ 16-5502 . . . the costs of litigation, including reasonable attorney fees.”

Interpreting this provision, this court has recognized that “the Act imposes no

requirement on a successful movant under § 16-5504(a) to show either . . .

improper motive (bad faith) or total lack of merit in the underlying suit . . . before

weighing of evidence and permissible inferences by the jury.” Mann, 150 A.3d at

1236 (emphasis in the original).

9

reasonable attorney’s fees may be awarded.” Doe v. Burke, 133 A.3d 569, 575

(D.C. 2016).

C. Factual Background

In late 2004, the New York Times and other media outlets published articles

about the abuse of detainees captured by the United States as part of its global war

on terror. These articles, and the reports underlying them, directly implicated

psychologists as assisting in the carrying out of abusive interrogations of detainees.

Amidst growing public scrutiny, the APA — a professional organization of over

117,500 members across the United States — convened a task force, known as the

Psychological Ethics and National Security Task Force (the “PENS Task Force” or

the “Task Force”) to “explore the ethical dimensions of psychology’s involvement

and the use of psychology in national security-related investigations.” Appellants

Banks and James were among the ten individuals selected to be on the Task Force,

and they were two of the Task Force’s three members who were military officers at

the time. Appellant Dunivin, who was also a military officer at the time, was not a

member of the Task Force, but she proposed members for it (and, according to the

Report, influenced its composition).

10

The PENS Task Force met for three days in June 2005 and, at the conclusion

of the meetings, issued a set of guidelines with commentary, known as the PENS

Guidelines, “about the ethical obligations of the APA members” involved in

national-security-related work. The PENS Guidelines stated that psychologists

“may serve in various national security-related roles, such as a consultant to an

interrogation,” but that psychologists should “strive to ensure that they rely on

methods that are effective, in addition to being safe, legal, and ethical.” The APA

Board adopted the PENS Guidelines as official policy in July 2005.

In the years that followed issuance of the PENS guidelines, the APA was

publicly criticized for allowing psychologists to consult on national security

interrogations. In 2014, nine years after the issuance of the PENS Guidelines, New

York Times Reporter James Risen published a book entitled Pay Any Price: Greed,

Power and Endless War, which charged that the APA had colluded with the U.S.

government to support torture. In response, the APA commissioned Sidley to

conduct “an independent review” to determine “whether APA officials [had]

colluded with DoD, CIA, or other government officials to ‘support torture.’” The

review culminated in the 541-page Report, entitled “Independent Review Relating

11

to APA Ethics Guidelines, National Security Interrogations, and Torture.” 5 The

APA published the Report on its website in July 2015.

Under a section of the Report entitled “Summary of the Investigation’s

Conclusions,” the Report notes that its “principal findings relate to the 2005

[PENS] [T]ask [F]orce.” The first of the “principal findings” is that “key APA

officials . . . colluded with important DoD officials to have APA issue loose, high-

level ethical guidelines that did not constrain DoD in any greater fashion than

existing DoD interrogation guidelines.” 6 The Report identified appellant Banks as

“the key DoD official” with whom the APA partnered and appellant Dunivin as

“the other DoD official who was significantly involved in the confidential

coordination effort.” The Report states as its next “principal finding” that “in the

three years following the adoption of the 2005 PENS Task Force report as APA

policy, appellants and APA officials engaged in a pattern of secret collaboration

with DoD officials to defeat efforts by the APA Council of Representatives to

5

A link to the report is contained on the APA website at

https://www.apa.org/news/press/statements/interrogations; https://perma.cc/HRN5-

PEN8. According to Sidley’s brief, the Report was based on the law firm’s having

“interviewed roughly 150 witnesses, conducted over fifty follow-up interviews of

witnesses, and reviewed over 50,000 documents” over an eight-month period.

6

The Complaint asserts that this statement is the Report’s “most prominent

false conclusion.”

12

introduce and pass resolutions that would have definitively prohibited

psychologists from participating in interrogations at Guantanamo Bay and other

U.S. detention centers abroad.” In an additional “principal finding,” the Report

states that “ethics complaints against prominent national security psychologists

w[ere] handled in an improper fashion, in an attempt to protect these psychologists

from censure.” Appellant James is one of the psychologists who allegedly was

“shielded” from censure.

D. The Particulars of the Complaint and

the Superior Court’s Rulings

Appellants’ August 2017 Complaint and February 2019 Supplemental

Complaint allege that the Report had “an overarching false and defamatory

narrative: [that] from 2005 to 2014, [p]laintiffs and others ‘colluded’ to block the

APA from taking any effective steps to prevent psychologists’ involvement in

abusive interrogations.” 7 The complaint alleges that each of the Report’s “three

primary conclusions . . . is false” and that the Report damaged appellants’

reputations and careers. As to Mr. Hoffman and Sidley, appellants assert that these

appellees made defamatory statements in the Report that they knew were false or

7

Hereafter, references to the “complaint” are to the Supplemental Complaint

unless otherwise indicated.

13

with reckless disregard for their truth or falsity; purposely avoided information that

they knew would contradict their preconceived narrative; relied on sources they

knew were biased or unreliable; failed to adhere to proper investigative practices;

and refused to correct or retract defamatory statements despite receiving additional

evidence of their falsity. As to the APA, appellants assert that the APA Board

hastily reviewed the Report and published it despite knowledge of its errors. The

complaint alleges in addition that an APA email referencing the Report and

changes made to the APA’s website in August 2018 constituted a republication of

the Report. An Exhibit to the complaint identifies 219 (allegedly) defamatory

statements made in the Report. 8

8

Appellees argued in their special motions to dismiss that appellants’

allegations did not “come close to establishing” that the Report contained

statements that appellees knew were false or about whose truth they entertained

doubts, and further that the allegations of the complaint were insufficient to

establish actual malice. Mr. Hoffman and Sidley asserted in addition that they

believe the Report’s interpretation of the events it discusses is correct. The APA

asserted that it was entitled to rely on the statements in the Report and had no

obligation to investigate the Report before releasing it to the public. In their briefs

in this appeal, appellees argue that appellants cannot show, by clear and

convincing evidence, that appellees published false statements about them with

actual malice. The Sidley brief argues in addition that appellants “rely on

inaccurate and generalized second-hand characterizations of [the] Report or their

own paraphrasing,” thereby complaining about alleged statements that the Report

“never said.”

14

In a January 23, 2020, order, the Superior Court rejected appellants’

argument that the Anti-SLAPP Act is invalid, and the court granted appellees’

special motions to dismiss in a March 12, 2020, order. In the latter order, the

Superior Court determined that appellees had made a prima facie showing that

appellants’ claims “ar[ose] from an act in furtherance of the right of advocacy on

issues of public interest” within the meaning of the Anti-SLAPP Act (a

determination that appellants do not challenge in this appeal) and thus that, under

§ 16-5502(b), the burden shifted to appellants to show that they were likely to

succeed on the merits. The court determined that each appellant is a “public

official” for purposes of defamation law and therefore could prevail only by

presenting evidence that would permit a jury to find by clear and convincing

evidence that appellees acted with actual malice, i.e., with knowledge that the

statements in dispute were false or with reckless disregard of whether they were

false. The court then found that appellants had failed to make the requisite

showing despite having had the opportunity to conduct some targeted discovery

pursuant to § 16-5502(c)(2). 9 The court also determined as a matter of law that

The court reasoned, for example, that affidavits appellants submitted in

9

support of their opposition to the special motions to dismiss did not support a

finding of actual malice because, notwithstanding the affiants’ impression that

Sidley had a “preconceived narrative” at the time Sidley investigators interviewed

the affiants, the affiants’ statements shed no light on “where along the investigative

process . . . [the] interviews [of the affiants] took place, and what information

15

APA did not republish the Report in August 2018. This appeal followed.

Appellants seek a remand for full discovery and trial.

II. Analysis

A. The Validity of the Anti-SLAPP Act’s Provisions

1. Whether the Anti-SLAPP Act’s Special-Motion-to-Dismiss

Procedure Contravenes the Home Rule Act

We turn first to appellants’ contention that the D.C. Anti-SLAPP Act is void

under the Home Rule Act. We note that the issue of the validity of the D.C. Anti-

SLAPP Act in light of D.C. Code § 11-946 was before this court earlier in Khan v.

Orbis Business Intelligence Ltd., 292 A.3d 244 (D.C. 2023), but the issue had not

been raised in the trial court, and we therefore declined to address it on appeal. See

id. at 260. In the instant case, the issue of whether the Act’s special-motion-to-

dismiss procedure contravenes the Home Rule Act has been preserved and timely

raised, and so we address it as a matter of first impression.

investigators had received prior to the interviews leading them to focus their

inquiry.”

16

Appellants’ claim is based on the Home Rule Act provision that states, in

relevant part, that “[t]he Council shall have no authority to . . . [e]nact any act,

resolution, or rule with respect to any provision of Title 11 (relating to organization

and jurisdiction of the District of Columbia Courts).” D.C. Code § 1-

206.02(a)(4). 10 Title 11 was enacted by Congress in 1970 as part of the so-called

Court Reorganization Act. 11 It “address[es] a wide range of topics,” 12 and

specifies, among other things, that “[t]he Superior Court shall conduct its business

10

Section 1-206.02(a)(4) (formerly codified as § 1-147(a)(4), see Coleman

v. District of Columbia, 80 A.3d 1028, 1035 n.9 (D.C. 2013)) is one of several

provisions of Title VI of the Home Rule Act (“Reservation of Congressional

Authority”) through which Congress explicitly reserved legislative authority in

certain areas. Section 602 of the Home Rule Act, codified as D.C. Code § 1-

206.02, is titled “Limitations on the Council.” 87 Stat. at 813.

11

This is a shorthand reference to the District of Columbia Court Reform

and Criminal Procedure Act of 1970, Pub. L. No. 91-358, 84 Stat. 473. In enacting

the Home Rule Act, Congress mandated that the District of Columbia court system

“shall continue as provided under the . . . Court Reorganization Act,” “subject

to . . . [D.C. Code] § 1-206.02(a)(4).” D.C. Code § 1-207.18(a); see also Parker v.

K&L Gates, LLP, 76 A.3d 859, 880 (D.C. 2013) (McLeese, J., concurring) (noting

that in enacting the Court Reorganization Act, Congress “likely intended” to

“maintain[] uniformity between the law of this jurisdiction and federal law”). As

one commentator has observed, “there was no question that the Court

Reorganization Act was not promoted by its sponsors as a home rule

measure . . . .” Steven M. Schneebaum, The Legal and Constitutional Foundations

for the District of Columbia Judicial Branch, 11 UDC/DCSL L. REV. 13, 17

(2008) (quoted in Johnson v. District of Columbia, 584 F. Supp. 2d 83, 88 (D.D.C.

2008)).

12

Woodroof v. Cunningham, 147 A.3d 777, 783 (D.C. 2016).

17

according to the Federal Rules of Civil Procedure . . . unless it prescribes or adopts

rules which modify those Rules.” D.C. Code § 11-946. It instructs that any such

Superior-Court-adopted rules “shall be submitted for the approval of the District of

Columbia Court of Appeals, and they shall not take effect until approved by that

court.” Id.

Appellants argue that the Anti-SLAPP Act violates the Home Rule Act

because it is legislation “with respect to [a] provision of Title 11,” which in

particular “intrudes . . . on [Title 11, § 946] by imposing rules on the Superior

Court that modify the Federal Rules but have not been approved by the D.C. Court

of Appeals.” Appellants assert that the intrusion entails “erecting an entirely

separate procedural mechanism” that “blocks most if not all discovery,” that

“requires a court to consider the legal sufficiency of the evidence presented before

discovery,” and that “permits a quick dismissal unavailable under the [Federal

Rules of Civil Procedure (“FRCP”)].” 13

13

Appellants also assert that the Act potentially and impermissibly “shifts

the burden of defendants’ attorneys’ fees to plaintiffs.” However, this court has

already ruled that the D.C. Anti-SLAPP Act provision authorizing that attorney-

fee-shifting does not violate the Home Rule Act because neither the Federal Rules

of Civil Procedure nor any provision of Title 11 dictates that parties are to bear

their own attorney’s fees. See Khan, 292 A.3d at 260-61.

18

The District of Columbia argues that the Home Rule Act limitation on the

Council’s authority set out in § 1-206.02(a)(4) — again, the proscription against

the Council’s enacting “any act, resolution, or rule with respect to any provision of

Title 11 (relating to organization and jurisdiction of the District of Columbia

Courts)” — pertains only to the Council’s ability to pass laws “that run directly

contrary to the ‘organization’ or ‘jurisdiction’ of [District of Columbia] courts” and

does not pertain to “rules of procedure.” 14 And, the District asserts, even if the

limitation on the Council’s authority does apply to court rules of procedure, the

limitation does not render the D.C. Anti-SLAPP Act void because the Act creates

“substantive” rights, and its special-motion-to-dismiss provisions are “substantive

law” that “does not impermissibly conflict with Title 11 or the Superior Court’s

procedural rules [that are analogues of the FRCP].” The District emphasizes this

court’s statements that the Act was intended by the Council to extend “substantive

rights” to SLAPP defendants, Doe, 133 A.3d at 575-76, and that the “Act’s

purpose [was] to create a substantive right not to stand trial and to avoid the

burdens and costs of pre-trial procedures” when defendants face legally

insufficient claims that arise from protected activity, Mann, 150 A.3d at 1231

(emphasis added); see also Fridman, 229 A.3d at 502 (citing the explanation in the

Report on Bill 18-893 that the Act’s purpose was “[t]o mitigate ‘the amount of

14

Appellants’ March 8, 2022, motion to strike the District’s brief is denied.

19

money, time, and legal resources’ that defendants named in [SLAPP] lawsuits must

expend” by “creat[ing] substantive rights which accelerate the often lengthy

processes of civil litigation”).

The foregoing statements about the Council’s intent notwithstanding, our

case law forecloses the notion that the Act’s special-motion-to-dismiss provisions

are not rules of procedure. We have observed that the Act’s special motion to

dismiss is in essence an expedited summary judgment motion, “albeit with

procedural differences.” Am. Stud. Ass’n v. Bronner, 259 A.3d 728, 740-41 (D.C.

2021). 15 We have further acknowledged that the Act “creates a distinct procedural

tool to be used to combat certain lawsuits,” Saudi Am. Pub. Rels. Affs. Comm. v.

Inst. for Gulf Affs., 242 A.3d 602, 609 (D.C. 2020) (emphasis added), and provides

SLAPP defendants “with procedural tools to protect themselves from ‘meritless’

litigation,” Close It! Title Servs., Inc. v. Nadel, 248 A.3d 132, 142 (D.C. 2021). Of

particular note is the Act’s provision (in § 16-5502(c)(1)) that “discovery

proceedings . . . shall be stayed” upon the filing of a special motion to dismiss.

15

See also Abbas v. Foreign Pol’y Grp., LLC, 783 F.3d 1328, 1337 (D.C.

Cir. 2015) (observing that “rules governing motions for summary judgment are

procedural” (citing Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559

U.S. 393, 404 (2010))).

16

Woodroof, 147 A.3d at 783.

20

That discovery-limiting provision, like other “rules governing pretrial discovery,”

is a rule “‘addressed to procedure.’” Passmore v. Baylor Health Care Sys., 823

F.3d 292, 299 (5th Cir. 2016) (quoting Shady Grove, 559 U.S. at 404 (making that

observation about both “rules governing summary judgment” and rules governing

“pretrial discovery”)). That the D.C. Anti-SLAPP Act’s discovery-limiting

provisions were intended to provide substantive protections does not diminish their

procedural nature because “most procedural rules do” “affect[] a litigant’s

substantive rights.” Shady Grove, 559 U.S. at 407.

As to the District’s argument that the parenthetical in § 1-206.02(a)(4)

signifies that this Home Rule Act limitation on the Council’s authority precludes

only Council action affecting the organization or jurisdiction of the D.C. Courts,

we reject the argument for a number of reasons. First, the phrase in the

parenthetical — “organization and jurisdiction of the District of Columbia Courts”

— merely repeats the title of Title 11, which is “Organization and Jurisdiction of

the Courts,” and is not reasonably read as specifying that only a subset of the

“wide range of topics” 16 covered by Title 11 is off-the-table for Council action. 17

16

Woodroof, 147 A.3d at 783.

17

See, e.g., Oppedisano v. Holder, 769 F.3d 147, 150 (2d Cir. 2014)

(explaining that “relating to” parentheticals are an “aid to identification only” and

“alert readers to the nature of the otherwise anonymous section numbers”); United

States v. Abdur-Rahman, 708 F.3d 98, 100 (2d Cir. 2013) (reasoning that the

21

In addition, § 1-206.02(a)(4) states that “[t]he Council shall have no authority

to . . . [e]nact any act, resolution, or rule with respect to any provision of Title 11”

(italics added), denoting that the limitation on the Council’s authority reaches

beyond provisions that establish the organization and jurisdiction of the D.C.

Courts. 18 By its plain meaning, this language precludes Council action that

contravenes the Title 11 procedural provision designated as § 11-946, which,

again, mandates that the Superior Court is to conduct its business according to the

parenthetical “(relating to mail, bank, and wire fraud)” “serves only an explanatory

or descriptive purpose and does not expressly limit the definition of felony

violation to only those offenses identified in the parenthetical”); United States v.

Harrell, 637 F.3d 1008, 1012 (9th Cir. 2011) (parentheticals aid a section’s

identification rather than limiting its application); Garrido-Morato v. Gonzales,

485 F.3d 319, 322 n.1 (5th Cir. 2007) (“[P]arenthetical ‘related to alien

smuggling’ . . . is descriptive and not limiting.”); Mapp v. District of Columbia,

993 F. Supp. 2d 26, 29 (D.D.C. 2014) (“‘[R]elating to’ parentheticals are

‘descriptive and not limiting.’” (quoting Garrido-Morato, 485 F.3d at 322 n.1)).

18

In looking to the plain meaning of § 1-206.02(a)(4), we are adhering to the

principle that “[i]n endeavoring to discern the meaning of any particular statute,

‘[t]he primary and general rule of statutory construction is that the intent of the

lawmaker is to be found in the language that he or she used.’” Thomas v. United

States, 171 A.3d 151, 153 (D.C. 2017) (quoting Clark Constr. Grp., Inc. v. D.C.

Dep’t of Emp. Servs., 123 A.3d 199, 202-03 (D.C. 2015)).

The District implies that the Anti-SLAPP Act does not contravene the Home

Rule Act because it does not amend Title 11 itself, but the Act’s discovery-limiting

provisions do just that: they effectively amend and modify § 11-946 to mandate

that the Superior Court “shall conduct its business according to the Federal Rules

of Civil Procedure . . . except upon the filing of an Anti-SLAPP Act special motion

to dismiss or unless it prescribes or adopts rules which modify those Rules . . . .”

22

Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure

unless the Superior Court “prescribes or adopts rules which modify those Rules.”

D.C. Code § 11-946. 19

Further, it cannot reasonably be thought inadvertent that the limitation on the

Council’s authority extends to every provision of Title 11. As we described in

Woodroof, “a draft version of the [Home Rule] statute permitted the Council to

‘pass acts affecting all aspects of [the District of Columbia] courts’ after an

‘eighteen-month period following . . . the date of enactment of [the Home Rule]

Act.’” Woodroof, 147 A.3d at 783 (emphasis and second alteration supplied in

Woodroof) (quoting H. Comm. on the District of Columbia, 93d Cong., 2d Sess.,

Home Rule for the District of Columbia 942 (Comm. Print 1974) (“Home Rule

Print”)). But the proposal raised concerns among the bench and bar that the

legislation could “completely alter” the District’s new court system, which had

only recently been established through the 1970 Court Reorganization Act, before

19

This was the concern registered preliminarily by then Attorney-General

for the District of Columbia Peter J. Nickles in his September 17, 2010, letter to

the then-Chair of the Council Committee on Public Safety & the Judiciary.

Attorney General Nickles warned that the proposed Anti-SLAPP Act’s special-

motion-to-dismiss procedure “may run afoul of section 602(a)(4) of the Home Rule

Act [§ 1-206.02(a)(4)],” which, he observed, “preserves the D.C. Courts’ authority

to adopt rules of procedure free from interference by the Council.” Report on Bill

18-893 at 23.

23

it had time to mature and gain experience and also could threaten the independence

of the judiciary. See id.; Hessey v. Burden, 584 A.2d 1, 7 (D.C. 1990). And of

particular note, the judiciary expressed the concern that it was “unclear whether

and the extent to which provisions [of the Court Reorganization Act] relating to . . .

[the courts’] authority to adopt court rules . . . would survive the enactment of [the

draft Home Rule legislation, H.R. 9056].” Home Rule Print at 1422.

Congress went on to reject H.R. 9056 as well as a “proposed amendment,”

id., that would have provided that “[e]xcept as otherwise provided in this Act, the

organization and jurisdiction of the District of Columbia courts shall be governed

by [T]itle 11.” Id. at 1423-24 (italics added). Congress determined to “freez[e] . . .

current law,” id. at 1425, mandating that the District of Columbia court system

“shall continue as provided under the . . . Court Reorganization Act,” “subject

to . . . [D.C. Code] § 1-206.02(a)(4).” D.C. Code § 1-207.18(a). Thus, the

language of § 1-206.02(a)(4) was specifically intended to continue in effect all of

the provisions adopted through the Court Reorganization Act. See id.; Woodroof,

147 A.3d at 783; see also Varela v. Hi-Lo Powered Stirrups, Inc., 424 A.2d 61, 64

(D.C. 1980) (“The legislative history of § 11-946 reflects the congressional intent

that the local courts were to be governed by the federal rules . . . .”); Home Rule

Print at 1098 (transcript of Mark-up by Full Committee of H.R. 9056 (July 24,

24

1973)) (explaining that amendments to the proposed Home Rule legislation

provided that “Title 11 of the District of Columbia Code shall remain in effect, that

it shall be, not subject to change by the Council, and it shall not be a Charter

change; and in effect, leaves the jurisdiction to this [congressional] Committee of

how Title 11 may be changed in the future”).

It is true, as the District reminds us, that this court has repeatedly said that

our interpretation of § 1-206.02(a)(4) must not “thwart the paramount purpose of

the [Home Rule Act], namely, to grant the inhabitants of the District of Columbia

powers of local self-government.” Woodroof, 147 A.3d at 784 (quoting Andrew v.

Am. Import Ctr., 110 A.3d 626, 629 (D.C. 2015)); see also Bergman v. District of

Columbia, 986 A.2d 1208, 1226 (D.C. 2010) (noting that this court has

“consistently held . . . that restrictions on the legislative authority of the Council in

§ 1-206.02(a)(4) must be narrowly construed, so as not to thwart th[at] paramount

purpose” of the Home Rule Act). 20 We have emphasized that “[t]he literal

wording of the statute is a primary index but not the sole index to legislative

20

See also id. at 1225-26 (rejecting the argument that the Title 11 provision

stating that this court “shall make such rules as it deems proper respecting the

examination, qualification, and admission of persons to membership in its bar, and

their censure, suspension, and exclusion” conferred upon this court “the exclusive

authority to take any action which would restrict in any way the conduct of

attorneys in the practice of law”) (emphasis in the original).

25

intent” and “cannot prevail over strong contrary indications in the legislative

history or so as to command an absurd result.” Citizens Ass’n of Georgetown v.

Zoning Comm’n of D.C., 392 A.2d 1027, 1033 (D.C. 1978) (quoting Lange v.

United States, 443 F.2d 720, 722-23 (D.C. Cir. 1971)). We therefore “have not

construed D.C. Code § 1-206.02(a)(4) as rigidly as its language might permit.”

Woodroof, 147 A.3d at 785. Instead, “[w]hen the Council’s actions do not run

directly contrary to the terms of Title 11, . . . our past decisions have chosen not to

interpret [the language of § 1-206.02(a)(4)] rigidly, but rather to construe this

limitation on the Council’s power in a flexible, practical manner.” Id. at 784

(brackets and emphasis added).

The District argues that in employing that flexibility, this court has

“construed [s]ection 1-206.02(a)(4) to prohibit the Council only from passing laws

that directly conflict with or amend the jurisdiction or structure of the District’s

courts.” What the District’s argument reflects is that the vast majority of this

court’s previous decisions involving § 1-206.02(a)(4) have considered challenges

to Council actions that arguably expanded or contracted this court’s appellate

jurisdiction as described in § 721 or § 722 of Title 11 (D.C. Code §§ 11-721, 11-

722). We have not previously had occasion to consider a challenge premised on a

claim that Council legislation is violative of the Home Rule Act because what the

26

legislation requires conflicts with the mandate of § 946 of Title 11 (D.C. Code

§ 11-946). Our previous decisions neither compel nor persuade us to reject

appellants’ Home Rule Act claim.

Moreover, we are not presented here with a possibility, similar to ones we

have been presented with in some of our earlier cases, of adopting a broad or fluid

interpretation of a term or phrase used in Title 11 or in the Home Rule Act in a

way that enables us to give deference to the Council’s intent. Cf. Woodroof, 147

A.3d at 780, 785, 787 (holding that a provision of the Revised Uniform Arbitration

Act allowing immediate appeal to this court of an order granting a motion to

compel arbitration did not violate § 1-206.02(a)(4)’s restriction on the Council’s

authority to enact legislation “with respect to” the jurisdiction of the courts;

reasoning that § 11-721(a), which gives this court jurisdiction over “appeals

from . . . all final orders and judgments,” contains “no statutory definition of a

‘final order,’” and that “categorizing orders as ‘final’ or ‘interlocutory’ can be a

fluid concept”); see also, e.g., Price v. D.C. Bd. of Ethics & Gov’t Accountability,

212 A.3d 841, 845 (D.C. 2019) (upholding Council-enacted law that vested the

Superior Court rather than this court with initial-review jurisdiction over Board of

Ethics decisions on the ground that the Home Rule Act established this court’s

primary jurisdiction as extending to review of agency orders and decisions, “but

27

only ‘to the extent provided by law,’” D.C. Code § 1-204.31(a) (quoting District of

Columbia v. Sullivan, 436 A.2d 364, 368 (D.C. 1981))). Neither the parties nor we

have identified any “fluid” language in § 11-946 or in the Home Rule Act, or any

narrow construction of the § 1-206.02(a)(4) restriction on the Council’s legislative

authority, that enables us to harmonize the conflict (described more fully in the

paragraphs that follow) between the discovery-limiting aspects of the Anti-SLAPP

Act’s special-motion-to-dismiss procedure and Title 11 § 946 (which mandates

adherence to the Federal Rules of Civil Procedure, absent modifications adopted

through Superior Court rulemaking).

To be sure, we have said that Council legislation that has a mere “incidental”

impact on the Superior Court’s exercise of its jurisdiction under Title 11 does not

contravene the Home Rule Act § 1-206.02(a)(4) limitation on the Council’s

authority to enact legislation with respect to any provision of Title 11. For

example, we agreed in Coleman that “[a]lthough the foreclosure of a cause of

action can certainly be said to affect the jurisdiction of the courts in a sense,” such

“incidental byproduct[s]” of changes in the substantive law “do[] not amount to an

alteration of . . . jurisdiction” in violation of the Home Rule Act.” 80 A.3d at 1035

n.9 (internal quotation marks and brackets omitted) (quoting Dimond v. District of

Columbia, 792 F.2d 179, 189-90 (D.C. Cir. 1986); see also Umana v. Swidler &

28

Berlin, Chartered, 669 A.2d 717, 724 n.15 (D.C. 1995) (explaining that the

provision now codified as § 1-206.02 (a)(4) “does not . . . limit the Council’s

authority to enact or to alter the substantive law to be applied by the courts”). We

have also upheld Council legislation that had an impact on the Superior Court’s

exercise of its jurisdiction under Title 11 where a separate provision of the Home

Rule Act specifically gave the Council authority to “classify an act as a crime, or to

decriminalize certain behavior.” Sullivan, 436 A.2d at 366 (pertaining to

legislation that decriminalized certain traffic offenses, thereby eliminating the

Superior Court’s original jurisdiction over those offenses). In the instant case, by

contrast, we discern no such bases for a narrow construction of 1-206.02(a)(4)’s

limitation on the Council’s legislative authority. The Anti-SLAPP Act’s

discovery-limiting provisions are not a mere incidental byproduct of changes in the

substantive tort law to be applied by the courts, and they do not have a mere

“incidental” impact on the Superior Court’s application of its counterparts to the

federal rules of procedure governing pre-trial disposition of cases. Rather, the

discovery-limiting provisions are a frontal and intentional feature of the Act and

the main procedural tool to achieve the expedited and less costly disposition the

Council had in mind. And while the District is correct that the Council has “broad

authority to legislate,” Andrew, 110 A.3d at 628 (citing D.C. Code § 1-203.02), the

Council cannot curtail the pre-trial civil discovery provided for in the Federal

29

Rules of Civil Procedure “without running headlong into [one of the] limitation[s]”

of § 1-206.02(a). In re Crawley, 978 A.2d 608, 618 (D.C. 2009).

We think it important to note that recognizing the § 11-946 limitation on the

Council’s authority to legislate with respect to Superior Court procedure does not

thwart the Home Rule Act’s purpose of granting powers of local self-government,

because § 11-946 already specifically prescribes how the local judiciary is

empowered to modify court rules in a manner that departs from the Federal Rules

of Civil and Criminal Procedure. To repeat, § 11-946 states that the Superior

Court is to conduct its business according to the FRCP “unless it prescribes or

adopts rules which modify those Rules” by submitting them for approval of this

court, and further that the Superior Court “may adopt and enforce other rules as it

may deem necessary without the approval of [this court] if such rules do not

modify the Federal Rules.” 21 D.C. Code § 11-946. This distinguishes § 11-946

21

Unlike Council legislation, the Superior Court’s modification to the

Federal Rules for use in Superior Court and this court’s approval of such

modifications are not subject to a congressional-review waiting period or

congressional veto.

30

from other provisions of Title 11 wherein Congress made no allowance for how the

requirements could be modified without congressional action. 22

In any event, as we said in Woodroof, it is only “[w]hen the Council’s

actions do not run directly contrary to the terms of Title 11” that we have construed

section Title 11 in a flexible manner. 147 A.3d at 784. That is not the situation

here. As we elaborate below, the Act’s discovery-limiting special-motion-to-

dismiss procedure is directly contrary to § 11-946’s prescription that the Superior

22

Also noteworthy is that the D.C. Courts have utilized their authority under

§ 11-946 to amend the rules to accommodate or accomplish the intent of Council

legislation. In 2021 and 2022, the Council enacted amendments to the debt

collection statute, D.C. Code § 28-3814, to provide inter alia that “[i]n a cause of

action initiated by a debt collector to collect a consumer debt, the debt collector

shall attach to the complaint or statement of claim a copy of the signed contract,

signed application, or other documents that provide evidence of the consumer’s

liability and the terms thereof, and shall allege or state [specified] information in

the complaint or statement of claim.” In April 2022, the Superior Court adopted,

after this court’s approval, an amendment to Rule 56, entitled “Consumer Debt

Collection Actions,” providing that “[i]n an action initiated by a debt collector to

collect a consumer debt as defined in D.C. Code § 28-3814, the plaintiff must

provide all documentation and information required by D.C. Code § 28-3814 prior

to entry of summary judgment.” Super. Ct. Civ. R. 56(a)(2); see Promulgation

Order 22-06 (D.C. Super. Ct. 2022). At least arguably, this rule amendment

averted a conflict between § 28-3814 and Super. Ct. Civ. R. 8(a), which “mirrors”

FRCP 8(a) in requiring a pleading to contain only a “short and plain statement of

the claim showing that the pleader is entitled to relief.” Potomac Dev. Corp. v.

District of Columbia, 28 A.3d 531, 543 (D.C. 2011). The courts have made no

such rule amendment to accommodate the discovery-limiting aspects of the Anti-

SLAPP Act’s special-motion-to-dismiss procedure.

31

Court is to conduct its business according to the FRCP “unless it prescribes or

adopts rules which modify those Rules” by submitting them for approval of this

court. The Act thus runs up against “a limitation expressed by title 11 itself.”

Hessey, 584 A.2d at 7. 23

Federal Rule of Civil Procedure 56 (like its Superior Court analogue)

provides that

[i]f a nonmovant shows by affidavit or declaration that,

for specified reasons, it cannot present facts essential to

justify its opposition [to a motion for summary

judgment], the court may: (1) defer considering the

motion or deny it; (2) allow time to obtain affidavits or

declarations or to take discovery; or (3) issue any other

appropriate order.

Fed. R. Civ. P. 56(d); see also Super. Ct. Civ. R. 56(d)(2). As the United States

Court of Appeals for the Ninth Circuit has observed, while Rule 56 “facially gives

judges the discretion to disallow discovery when the non-moving party cannot yet

23

This conflict with a limitation expressed in Title 11 makes the issue in this

case analogous to the one we considered in Capitol Hill Restoration Society, Inc. v.

Moore, 410 A.2d 184, 186-88 (D.C. 1979) (explaining that Title 11 would preclude

the Council from expanding this court’s jurisdiction to include direct review of a

determination by the District’s State Historic Preservation Officer, because D.C.

Code § 11-722 limits this court’s authority to conduct direct reviews of agency

action to review “in accordance with the . . . Administrative Procedure Act,” which

“in turn limits our review to ‘contested cases’”).

32

submit evidence supporting its opposition, the Supreme Court has restated the rule

as requiring, rather than merely permitting, discovery ‘where the nonmoving party

has not had the opportunity to discover information that is essential to its

opposition.’” Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986)).

As noted above, this court recognized in Mann that the D.C. Anti-SLAPP

Act special-motion-to-dismiss provision effectively functions as a Rule 56 motion

for summary judgment. Mann, 150 A.3d at 1238 n.32. But unlike FRCP 56, the

Act’s special-motion-to-dismiss provision mandates generally that “upon the filing

of a special motion to dismiss, discovery proceedings on the claim shall be stayed

until the motion has been disposed of.” D.C. Code § 16-5502(c)(1). That general

rule is subject to the exception that “[w]hen it appears likely that targeted

discovery will enable the plaintiff to defeat the motion and that the discovery will

not be unduly burdensome, the court may order that specified discovery be

conducted.” Id. § 16-5502(c)(2). Under this provision, “discovery normally will

not be allowed,” as a plaintiff must show “more than ‘good cause’” for discovery,

such that it is “difficult” for a plaintiff to meet the § 16-5502 discovery standard.

Fridman, 229 A.3d at 512. And, to refer again to our observation in Mann, “the

special motion to dismiss is different from [Rule 56] summary judgment in that it

33

imposes the burden on plaintiffs and requires the court to consider the legal

sufficiency of the evidence presented before discovery is completed.” 150 A.3d at

1238 n.32 (emphasis added).

In short, because of the discovery-limiting aspects of § 16-5502(c), the Act

does not simply mirror Federal Rule of Civil Procedure 56. For that reason, the

D.C. Circuit “stated [in its 2015 decision in Abbas v. Foreign Policy Group, LLC,

783 F.3d 1328,] that the special motion to dismiss created by D.C. Code § 16-5502

does not apply in federal court because it answers the same question as the Federal

Rules of Civil Procedure — when a court must dismiss a case before trial — in a

different way.” Id. (citing Abbas, 783 F.3d at 1336); see also Tah v. Glob. Witness

Publ’g, Inc., 991 F.3d 231, 238-39 (D.C. Cir. 2021) (continuing to apply Abbas

after this court’s decision in Mann, explaining that under Federal Rule 56, “full

discovery is the norm, not the exception,” such that “summary judgment is

typically premature unless all parties have had a full opportunity to conduct

discovery,” while under the D.C. Anti-SLAPP Act, “discovery normally will not

be allowed” (internal quotation marks omitted)); id. (“Although Mann may

undermine some of Abbas’s reasoning, the bottom line remains: the federal rules

and the anti-SLAPP law answer the same question about the circumstances under

which a court must dismiss a case before trial . . . differently, and the anti-SLAPP

34

law still conflicts with the Federal Rules by setting up an additional hurdle a

plaintiff must jump over to get to trial.” (internal quotation marks omitted));

Abbas, 783 F.3d at 1334, 1335, 1336 (noting that the D.C. Anti-SLAPP Act

establishes a procedural mechanism that “differs from” the Federal Rules and

“disrupt[s] the comprehensive scheme embodied in the Federal Rules” (quoting

Makaeff v. Trump Univ., LLC, 715 F.3d 254, 275 (9th Cir. 2013) (Kozinski, C.J.,

concurring))).

Most of the other federal courts of appeals that have ruled on the issue have

similarly held that State anti-SLAPP statutes will not be applied fully (if at all) in

the federal courts in their circuits because of the conflict between those anti-

SLAPP statutes’ procedural mechanisms and the Federal Rules of Civil

Procedure. 24 Godin v. Schencks, 629 F.3d 79 (1st Cir. 2010), is a notable

24

See, e.g., La Liberte v. Reid, 966 F.3d 79, 88 (2d Cir. 2020) (rejecting the

argument that the California anti-SLAPP statute “supplements rather than conflicts

with the Federal Rules” and holding that “federal courts must apply Rules 12 and

56 instead of California’s special motion to strike”) (internal quotation marks

omitted); Klocke v. Watson, 936 F.3d 240, 246 (5th Cir. 2019) (holding that the

Texas anti-SLAPP statute conflicts with the federal rules because it “operates

largely without pre-decisional discovery”); Carbone v. CNN, Inc., 910 F.3d 1345,

1353-54 (11th Cir. 2018) (holding that the Georgia anti-SLAPP statute “abrogates

the entitlements conferred” by the federal rules by requiring the plaintiff to rely

exclusively on evidence he was able to obtain without discovery); Planned

Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 833-34

(9th Cir. 2018) (reviewing California’s anti-SLAPP statute and reasoning that

35

exception, but in that case the First Circuit applied the Maine anti-SLAPP statute

in a diversity action on the rationale that “[i]f a federal court would

allow discovery under Fed. R. Civ. P. 56(d) then, in our view, that would constitute

“[r]equiring a presentation of evidence without accompanying discovery would

improperly transform the motion to strike under the anti-SLAPP law into a motion

for summary judgment without providing any of the procedural safeguards that

have been firmly established by the Federal Rules of Civil Procedure,” a result the

court “could not properly allow” because it “would effectively allow the state anti-

SLAPP rules to usurp the federal rules.”); Los Lobos Renewable Power, LLC v.

AmeriCulture, Inc., 885 F.3d 659, 661 (10th Cir. 2018) (affirming district court

holding that the New Mexico anti-SLAPP statute’s procedural mechanisms are

inapplicable in federal court); Metabolife, 264 F.3d at 845, 846 (holding that the

“discovery-limiting aspects” of California’s anti-SLAPP statute “directly collide”

with the “discovery-allowing aspects” of FRCP 56); Z.F. v. Ripon Unified Sch.

Dist., 482 F. App’x 239, 240 (9th Cir. 2012) (holding that if an anti-SLAPP motion

to dismiss is based on a factual challenge rather than a purely legal challenge, it

must be treated as a motion for summary judgment and “discovery must be

permitted”); Intercon Sols., Inc. v. Basel Action Network, 969 F. Supp. 2d 1026,

1042, 1048 (N.D. Ill. 2013) (observing that “it is clear from the Advisory

Committee Notes . . . that Rules 12 and 56 were intended to provide the exclusive

means for federal courts to use to rule upon a pretrial motion to adjudicate a case

on the merits based on matters outside the complaint,” and concluding that the

Washington anti-SLAPP statute could not be applied by a federal court sitting in

diversity because it “plac[ed] a higher procedural burden on the plaintiff than is

required to survive a motion for summary judgment under [federal] Rule 56), aff’d,

791 F.3d 729 (7th Cir. 2015). But see, e.g., Henry v. Lake Charles Am. Press LLC,

566 F.3d 164, 182 (5th Cir. 2009) (applying Louisiana’s anti-SLAPP statute in

case where the plaintiff “fail[ed] to request” discovery). The Fifth Circuit panel in

Klocke concluded that Henry’s conclusion about the applicability of the Louisiana

anti-SLAPP statute was not binding because the opinion there gave “no indication

. . . that the court considered the potential overlap or conflict between the Louisiana

anti-SLAPP provision and the Federal Rules” and because “the Henry panel did

not have the benefit of the Supreme Court’s compelling decision in Shady Grove.”

Klocke, 936 F.3d at 248-49.

36

good cause [to allow discovery] under the Maine statute,” id. at 91, 25 and on the

additional rationale that the Maine anti-SLAPP statute “provides substantive legal

defenses to defendants and alters what plaintiffs must prove to prevail,” neither of

which is the “province of . . . Rule 56,” id. at 89 (noting that the Maine anti-

SLAPP statute “substantively alters the type of harm actionable” by requiring the

plaintiff to “show the defendant’s conduct resulted in actual injury to the plaintiff”

and further requires the plaintiff “to demonstrate that the defendant’s activity (1)

was without reasonable factual support, and (2) was without an arguable basis in

law” (quoting Me. Rev. Stat. tit. 14, § 556 (internal quotation marks omitted))).

The D.C. Anti-SLAPP Act is quite different from the Maine statute as that statute

has been interpreted by the First Circuit: as discussed above, under the D.C. Anti-

SLAPP Act’s special-motion-to-dismiss provision, “discovery normally will not be

allowed,” Fridman, 229 A.3d at 512. Moreover, nothing in the Act provides

substantive legal defenses to defendants or alters the elements plaintiffs must prove

to prevail on their claims.

25

But see Gaudette v. Davis, 160 A.3d 1190, 1199 (Me. 2017) (explaining

that under the Maine anti-SLAPP statute, “the trial court must strictly limit the

scope of . . . discovery”), overruled in part on other grounds, Thurlow v. Nelson,

263 A.3d 494, 502 (Me. 2021)).

37

In sum, the discovery-limiting aspects of the D.C. Anti-SLAPP Act’s

special-motion-to-dismiss procedure conflict with FRCP 56. 26 That means that the

Anti-SLAPP Act’s mandate that the Superior Court apply those discovery-limiting

aspects of the Council-created procedure when a party invokes the protection of

the Act — instead of applying the rules prescribed by (or adopted by the court

pursuant to) Title 11 § 946 — violates the Home Rule Act. 27

26

By contrast, the Anti-SLAPP Act’s attorney fee-shifting provision (§ 16-

5504) addresses a matter not addressed by the Federal Rules, and thus does not

conflict with the Federal Rules, with § 11-946, or with the Home Rule Act. See

Khan, 292 A.3d at 260-61 (“[T]he fee-shifting provision of the Anti-SLAPP Act

plainly does nothing to modify the procedure set forth in the Federal Rules of Civil

Procedure for requesting and obtaining a statutorily authorized award of litigation

costs.”).

27

To be clear, our analysis in this opinion governs when, as occurred in the

instant case, the Superior Court considers materials outside the complaint when

deciding an Anti-SLAPP Act special motion to dismiss (i.e., when in essence the

court considers whether to grant summary judgment). We do not address in this

opinion application of the Anti-SLAPP Act when the Superior Court resolves an

Anti-SLAPP Act special motion to dismiss on the ground that the complaint failed

to state a claim (i.e., when discovery is not an issue). But see Am. Stud. Ass’n, 259

A.3d at 750 (“A determination by the court pursuant to Rule 12(b)(6) that the

responding party has failed to state a claim on which relief can be granted suffices

to establish that the claim is not ‘likely to succeed on the merits.’ The court should

rule on the special motion to dismiss with respect to each claim, even if it grants a

12(b)(6) motion to dismiss that claim.”). We note that the Ninth Circuit, though

declining to apply the discovery-limiting provisions of the California anti-SLAPP

statute, has given effect to the California statute’s attorney-fee-shifting provision

where a defendant invoking the anti-SLAPP special-motion procedure contends

that the complaint is deficient. See Planned Parenthood, 890 F.3d at 834 (agreeing

that “[i]f a defendant makes a special motion to strike based on alleged deficiencies

in the plaintiff’s complaint, the motion must be treated in the same manner as a

38

Here, in seeking to persuade the Superior Court to allow them an

opportunity for discovery, appellants filed declarations detailing the targeted

discovery they sought. The Superior Court granted them answers to four

interrogatories and a physical copy of a computer hard drive. But of the 148

witness-interview notes appellants requested, they were granted interview notes for

only 18 individuals (excluding their own interview statements). In addition, while

the Superior Court initially said it would allow appellants to take three depositions,

the court subsequently sua sponte denied appellants an opportunity to take any

depositions. Thus, while the Superior Court observed that appellants “received

voluminous discovery under the limited discovery provision” of the Act, they

received considerably less discovery than they sought. 28

motion under Rule 12(b)(6) except that the attorney’s fee provision of [the

California anti-SLAPP statute] applies”); see also Sydney Buckley, Comment,

Getting SLAPP Happy: Why the U.S. District Court for the District of Kansas

Should Adopt the Ninth Circuit’s Approach when Applying the Kansas Anti-SLAPP

Law, 68 U. KAN. L. REV. 791, 821 (2020) (advocating application of the Ninth

Circuit approach, such that the fee-shifting provisions of anti-SLAPP statutes

would be applicable in federal courts in such circumstances).

28

Sidley states that it produced roughly 31,000 pages of documents and

former plaintiff Behnke’s work hard drive. The APA answered four

interrogatories, produced more than 22,000 pages of documents from the hard

drive, and made 7,600 pages of Report exhibits publicly available. Appellants

state that they received “very limited discovery.”

39

Appellants seek a remand “for full discovery,” arguing that “[d]efamation

plaintiffs inevitably need substantial discovery from third parties about what

defendants should have known, as well as from defendants themselves about

[what] they knew,” what they avoided learning, “and what documents they had

when they published the challenged statements.” Appellants emphasize that, in

giving effect to the Act’s special-motion-to-dismiss provision, the Superior Court

“severely limit[ed] discovery in a case where evidence in [d]efendants’ possession

was critical to address issues of malice” and “a crucial step in demonstrating actual

malice.” 29 Appellants assert that they “cannot adequately rebut [the Report’s]

claims without access to” witness statements, interview notes, and other documents

that appellees have withheld.

As we noted in the introductory pages of this opinion and as we discuss

further infra, appellants dispute that they are public officials whose defamation

claims are entirely subject to the actual-malice fault standard. It appears, however,

that since appellants seek an award of punitive damages, the parties and their

29

See Standridge v. Ramey, 733 A.2d 1197, 1203 (N.J. Super. Ct. App. Div.

1999) (“[T]here is an especially strong need for full discovery in a defamation

action brought by a plaintiff who is classified as a ‘public official.’”).

40

discovery efforts must focus on the question of actual malice even if appellants are

not public officials. 30 See infra note 38. We are persuaded that regardless of

which standard applies — actual malice or negligence 31 — appellants were entitled

to discovery under the Superior Court counterparts to the Federal Rules of Civil

Procedure before the Superior Court ruled on what was in effect appellees’ motion

for summary judgment. But, giving effect to the Act’s limited-discovery

provision, the Superior Court denied appellants the opportunity for full discovery.

We therefore reverse the judgment of dismissal and remand for further

proceedings.

2. Appellants’ Constitutional Claims

Appellants contend that the D.C. Anti-SLAPP Act is invalid on the

additional ground that it unconstitutionally burdens their First Amendment right to

petition the government to seek redress for harm to their reputations and

30

Appellants acknowledged as much in their briefs filed in the Superior

Court.

For plaintiffs who are not public officials or public figures, establishing

31

defamation requires proof of at least negligence on the defendant’s part. See Moss

v. Stockard, 580 A.2d 1011, 1022 n.23 (D.C. 1990) (explaining that this is so

regardless of whether the source of the alleged defamatory statements is a media or

non-media source).

41

livelihoods. In the context of this claim, too, appellants emphasize the Act’s

impairment of their right to discovery, an impediment they particularly decry since

it applies even without proof that they filed suit with an abusive purpose. They

complain that the possibility that they may be “saddled with the defendants’

attorneys’ fees” likewise burdens their right to petition.

We need not pause long over these claims. Because we have agreed that

imposition of the discovery-limiting aspects of the Act’s special-motion-to-dismiss

procedure exceeded the Council’s authority under the Home Rule Act and directly

conflicts with § 946 of Title 11, and in light of our remand on that basis for full

discovery, we need not address appellants’ constitutional claim as it relates to the

Act’s severe limits on the opportunity for discovery to avoid pre-trial dismissal. In

addition, our recent decision in Khan has already resolved any claim that the Act’s

attorney-fee-shifting provision, § 16-5504(a), unconstitutionally burdens the

constitutional right to petition for redress of grievances. See Khan, 292 A.3d at

259 (“[W]e readily conclude that § 16-5504(a) imposes no undue burden on the

First Amendment right to petition for redress of grievances.”). 32

32

See also id. at 257-58 (“But even if a fee-shifting provision can be said to

‘burden’ the exercise of the right to petition by discouraging plaintiffs from

asserting claims of questionable merit, that does not mean the burden is undue or

so interferes with exercise of the right as to be unconstitutional. . . . [S]ome

42

Appellants also deride the Act’s “reverse burden on the non-moving party.”

This is a reference to what we have called the Act’s “reversal of the allocation of

burdens . . . for summary judgment[.]” Mann, 150 A.3d at 1237. We cannot agree

that the Act’s burden-shifting provision infringes on appellants’ constitutional right

to petition. The Supreme Court has explained that “the right [of access to the

courts] is ancillary to the underlying claim, without which a plaintiff cannot have

suffered injury by being shut out of court.” Christopher v. Harbury, 536 U.S. 403,

415 (2002); see also McDonald v. Smith, 472 U.S. 479, 484 (1985) (“‘[B]aseless

litigation is not immunized by the First Amendment right to petition.’” (quoting

Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983)). The burden-

shifting provision imposes on SLAPP plaintiffs the burden of showing that the

complaint rests on more than “unsupported claims that do not meet established

legal standards,” Mann, 150 A.3d at 1239, and of successfully rebutting any

encroachment on the right to petition – particularly when regulations do not

directly impair the right to access the court – is permissible if it effectuates

important interests of the government. . . . The Council unquestionably had

significant reasons for enacting the Anti-SLAPP Act's fee-shifting provision . . .

[including] [d]iscouraging the filing of meritless lawsuits, and . . . protecting the

right to free speech guaranteed by the First Amendment . . . by shielding

defendants from meritless litigation that might chill advocacy on issues of public

interest.” (internal quotation marks and citations omitted)); Premier Elec. Constr.

Co. v. Nat’l Elec. Contractors Ass’n, 814 F.2d 358, 373 (7th Cir. 1987) (“[T]he

proposition that the first amendment, or any other part of the Constitution,

prohibits or even has anything to say about fee-shifting statutes in litigation seems

too farfetched to require extended analysis.” (footnote omitted)).

43

argument that the plaintiff “could not prevail as a matter of law, . . . after allowing

for the weighing of evidence and permissible inferences by the jury,” id. at 1236

(emphasis omitted). A plaintiff who is shut out of court because it cannot meet

that burden has not been denied its constitutional right to petition the courts.

What remains of appellants’ constitutional argument is the claim that the Act

impermissibly burdens the First Amendment right to petition for redress by

deterring plaintiffs whose lawsuits are not grounded on the types of abusive

motives — the intent to punish or prevent expression — the Act was intended to

stem. Appellants rely on cases from other jurisdictions in which courts have held

that there must be a required showing of such an abusive motive if application of

an anti-SLAPP statute is to pass constitutional muster. They contend that the Act’s

application to “well-founded suits to redress real harm . . . filed by individuals with

limited resources against well-funded defendants [such as appellees here]”

demonstrates its overbreadth. But here, as was the case in Equilon Enterprises v.

Consumer Cause, Inc., 52 P.3d 685 (Cal. 2002), appellants have “failed to identify

any support for the proposition that the constitutionality of [the anti-SLAPP law]

provisions depends upon their requiring proof of subjective intent.” Id. at 692.

For the foregoing reasons, we reject appellants’ constitutional claims.

44

***

Appellants ask us to strike down the Act in its entirety. But in light of all the

foregoing discussion, we see no basis for doing so in the absence of any argument

by appellants that the discovery-limiting provisions of the Act are not severable.

See Hooks v. United States, 191 A.3d 1141, 1145 (D.C. 2018) (“Even without a

severability provision, there is always a presumption of severability whenever the

remaining provisions, standing alone, are fully operative as a law.” (internal

quotation marks and citation omitted)). Our decision today precludes the Superior

Court from giving effect to D.C. Code § 16-5502(c) (as well as the expedited-

hearing sentence of § 16-5502(d) to the extent it would curtail discovery) unless

and until the Superior Court rules are amended to authorize the discovery-limiting

departure from the Federal Rules that the Act purported to mandate. 33 But, giving

33

To state the point differently, § 16-5502(c) (as well as the expedited-

hearing sentence of § 16-5502(d) to the extent it would curtail discovery) is to be

disregarded unless and until there are such rule amendments. Cf. Barr v. Am.

Ass’n of Political Consultants, 140 S. Ct. 2335, 2350 (2020) (“[I]f any part of an

Act is unconstitutional, the provisions of that part may be disregarded while full

effect will be given to such as are not repugnant to the constitution of the United

45

deference to the Council’s legislative intent 34 (and authority) to create substantive

rights for SLAPP defendants, including “financial levies to deter a SLAPP

plaintiff,” Mann, 150 A.3d at 1238, we decline to strike the Act’s attorney-fee-

shifting provision (§ 16-5504(a)), and we likewise decline to strike § 16-5502(a) or

§ 16-5502(b) (including its burden-shifting provision). 35

B. The “Public Official” Issue

“To succeed on a claim for defamation, a plaintiff must prove: ‘(1) that the

defendant made a false and defamatory statement concerning the plaintiff; (2) that

States.” (internal quotation marks omitted)). Our holding is that § 16-5502(c) (as

well as § 16-5502(d) to the extent it would curtail discovery) is “inoperative or

unenforceable” until such time as any that the Superior Court rules are amended to

adopt the provisions’ discovery limitations, “but not void in the sense [of being]

repealed or abolished.” Jawish v. Morlet, 86 A.2d 96, 97 (D.C. 1952).

34

See Woodroof, 147 A.3d at 787.

35

As the First Circuit has observed, “[n]either Fed. R. Civ. P. 12(b)(6) nor

Fed. R. Civ. P. 56 determines which party bears the burden of proof on a state-law

created cause of action.” Godin, 629 F.3d at 89. Moreover, “the burden of proof

[is] a ‘substantive’ aspect of a claim[,]” Raleigh v. Ill. Dep’t of Revenue, 530 U.S.

15, 20-21 (2000), and we thus regard the Council’s allocation of the burden of

proof to SLAPP plaintiffs as a substantive enactment that does not implicate the

Federal Rules. See also Godin, 629 F.3d at 89 ([“[I]t is long settled that the

allocation of burden of proof is substantive in nature and controlled by state law.”)

(citing Palmer v. Hoffman, 318 U.S. 109, 117 (1943)).

46

the defendant published the statement without privilege to a third party; (3) that the

defendant’s fault in publishing the statement met the requisite standard; and (4)

either that the statement was actionable as a matter of law irrespective of special

harm or that its publication caused the plaintiff special harm.’” Mann, 150 A.3d at

1240 (brackets and footnote omitted) (quoting Oparaugo v. Watts, 884 A.2d 63, 76

(D.C. 2005)). As to the third element, the requisite showing of fault depends on

whether the plaintiff is a public official 36 or public figure, 37 both of whom are

subject to the heightened proof requirement of actual malice, or is instead a private

individual, who need prove only negligence. 38 Id. at 1240 n.33. To establish

36

We note, with reference to appellants’ status as now-retired military

officers, that “[e]ven though a person is no longer publicly employed, . . . he or she

will ordinarily be treated as a public official with respect to comments about his or

her past performance in that role.” 1 ROBERT D. SACK, SACK ON DEFAMATION §

5:2.1, at 5-9 (5th ed. 2017) (hereafter, “SACK”) (citing cases); see Rosenblatt v.

Baer, 383 U.S. 75, 87 n.14 (1966) (acknowledging that “there may be cases where

a person is so far removed from a former position of authority that comment on the

manner in which he performed his responsibilities no longer has the interest

necessary to justify the [rule in New York Times Co. v. Sullivan, 376 U.S. 254

(1964)]”).

37

See supra note 31. Appellees do not contend (or no longer contend) in

this case that appellants are limited-purpose public figures.

38

However, a private plaintiff seeking punitive damages for alleged

defamation must prove actual malice to recover such damages, at least when the

defamatory statements involve matters of public concern. See Gertz v. Robert

Welch, Inc., 418 U.S. 323, 348-50 (1974) (acknowledging that there is a “strong

and legitimate state interest in compensating private individuals for injury to

reputation,” but holding “that the States may not permit recovery of presumed or

47

actual malice, a plaintiff must show “that the defendant either (1) had ‘subjective

knowledge of the statement’s falsity,’ or (2) acted with ‘reckless disregard for

whether or not the statement was false.’” Id. at 1252 (quoting Doe No. 1 v. Burke,

91 A.3d 1031, 1044 (D.C. 2014)); see N.Y. Times Co. v. Sullivan, 376 U.S. 254,

279-80 (1964). 39 “[W]here the plaintiff rests both his defamation and false light

claims on the same allegations . . . the claims will be analyzed in the same

manner.” Close It! Title Servs., 248 A.3d at 140 (quoting Blodgett v. Univ. Club,

punitive damages, at least when liability is not based on a showing of knowledge

of falsity or reckless disregard for the truth”; “the private defamation plaintiff who

establishes liability under a less demanding standard than that stated by New York

Times may recover only such damages as are sufficient to compensate him for

actual injury”); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749,

763 (1985) (“We conclude that permitting recovery of presumed and punitive

damages in defamation cases absent a showing of ‘actual malice’ does not violate

the First Amendment when the defamatory statements do not involve matters of

public concern.”); Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 90 (D.C.

1980) (affirming grant of summary judgment against plaintiff on a claim for

presumed or punitive damages because plaintiff had failed to produce evidence of

defendant’s “knowing or reckless false publication” under the “constitutionally

mandated Times malice standard); Davis v. Schuchat, 510 F.2d 731, 737 n.5 (D.C.

Cir. 1975) (applying the foregoing statement in Gertz in the case of a non-media

defendant).

39

The New York Times actual malice standard is sometimes called

“constitutional actual malice” to distinguish it from “actual malice in the common-

law sense of spite or ill will.” See SACK, § 1:3.1 at 1-34; Moss, 580 A.2d at 1026

n.29. But see Harte-Hanks Commnc’ns v. Connaughton, 491 U.S. 657, 668 (1989)

(noting that “it cannot be said that evidence concerning motive or care never bears

any relation to the actual malice inquiry” and explaining that evidence of motive

can be “supportive” of a conclusion about reckless disregard as to truth or falsity of

allegations).

48

930 A.2d 210, 222-23 (D.C. 2007)). “[A] plaintiff may not avoid the strictures of

the burdens of proof associated with defamation by resorting to a claim of false

light invasion.” Klayman v. Segal, 783 A.2d 607, 619 (D.C. 2001) (quoting

Moldea v. N.Y. Times Co., 22 F.3d 310, 319 (D.C. Cir. 1994)).

Appellants argue that the Superior Court erred in determining that they were

public officials and in scrutinizing their evidence and likelihood of prevailing with

an actual-malice lens. In their complaint and accompanying affidavits, appellants

characterize themselves as “mid-level employee[s]” who were not in a position to

formulate DoD or military policy. They contend that their role was to execute the

policy directives of their superiors and emphasize that they did not have authority

to speak on behalf of DoD. The Superior Court reasoned that the Report “clearly

addresses [appellants’] performance of their official duties,” but appellants assert

that they did their work on the PENS Task Force during their free time as

volunteers and private individuals who were members of the APA’s military

psychologists division, not in their capacity as military officers. In asserting in

their special motions to dismiss that appellants are public officials, appellees relied

49

in large part on appellants’ ranks and titles 40 as well as on excerpts from

appellants’ descriptions (in the complaint) of their positions and responsibilities.

The Supreme Court has not precisely defined the term “public official,” and

the case law reflects difficult-to-reconcile determinations about particular public

employees who have been determined to be, or not to be, public officials. See

generally SACK, § 5:2.1 at 5-7 and 5-10 to 5-20 (collecting cases). The term

“eludes precise definition.” Mandel v. Bos. Phoenix, Inc., 456 F.3d 198, 202 (1st

Cir. 2006). The Supreme Court has instructed, however, that not every public

employee is a public official for libel-law purposes. See Hutchinson v. Proxmire,

443 U.S. 111, 119 n.8 (1979). The term “applies at the very least to those among

the hierarchy of government employees who have, or appear to the public to have,

substantial responsibility for or control over the conduct of governmental affairs.”

Rosenblatt, 383 U.S. at 85. But “[t]he employee’s position must be one which

would invite public scrutiny and discussion of the person holding it, entirely apart

from the scrutiny and discussion occasioned by the particular charges in

40

Appellant Banks was Director of Psychological Applications for the

United States Army’s Special Operations Command. Appellant James was the

Chief of the Department of Psychology at Walter Reed Army Medical Center and

Tripler Army Medical Center, and Director of Behavioral Science at Guantanamo

and Iraq. Appellant Dunivin was Chief of the Departments of Psychology at

Walter Reed Medical Center and Walter Reed National Military Medical Center.

50

controversy.” Id. at 86 n.13. 41 A public-official position is one with “such

apparent importance that the public has an independent interest in the

qualifications and performance of the person who holds it, beyond the general

public interest in the qualifications and performance of all government

employees[.]” Id. at 86. 42

This court’s case law establishes that a government employee’s position may

be of “apparent importance” by virtue of, for example, control over policy, direct

interaction with the public, or supervisory authority over other employees. Beeton

v. District of Columbia, 779 A.2d 918, 921, 924 (D.C. 2001) (corrections officer

was public official); Thompson v. Armstrong, 134 A.3d 305, 308, 312 (D.C. 2016)

(special agent with Treasury Inspector General was public official). In considering

41

See also Moss, 580 A.2d at 1029 (“[T]he position occupied by the official

must be distinguished from the controversy in which he has become embroiled, for

it is the former that must inherently invite public scrutiny.”); O’Connor v.

Burningham, 165 P.3d 1214, 1220 (Utah 2007) (“Public officials owe their status

to the duties demanded by their official positions, not to the vagaries of events that

may occur while they occupy these positions.”).

42

“Law enforcement officers at virtually every level have been held to be

public officials,” SACK, § 5:2.1 at 5-12 (footnote omitted), a result that seems to

follow from their wielding substantial and direct authority in enforcing the law

against the public. The Sack treatise suggests that all elected officials are public

because “they place their character and behavior before the public for

consideration” by running for office, while “[o]nly some nonelected officials are

subject to the [actual-malice] standard.” Id. at 5-8 (citing Garrison v. Louisiana,

379 U.S. 64 (1964)).

51

a plaintiff’s public-official status, we have echoed the Supreme Court’s reasoning

that “public officials, with superior access to the media, usually are better able than

ordinary individuals to affect the outcome of those issues and to counteract the

effects of negative publicity.” Moss, 580 A.2d at 1029 (citing Rosenblatt, 383 U.S.

at 85-86); see also Gertz, 418 U.S. at 344 (“Public officials and public figures

usually enjoy significantly greater access to the channels of effective

communication and hence have a more realistic opportunity to counteract false

statements than private individuals normally enjoy.”). See generally 1 RODNEY A.

SMOLLA, LAW OF DEFAMATION § 2:108 (2d ed. 2023) (“[C]ourts have begun to

emphasize the degree of policy-making authority wielded by the plaintiff in his or

her official position, as well as the plaintiff’s level of access to the media, as

factors to be weighed in making the public official determination.”).

In determining that appellants are public officials, the Superior Court relied

in part on appellants’ positions, which it found “comfortably fit within the

hierarchy of public officials as provided in Rosenblatt.” The court also relied on

appellants’ allegations in the complaint that they drafted, created, implemented,

and helped put in place policies, procedures, and training relating to interrogations

and interview techniques; investigated interrogation abuses; and, in the case of

appellant Banks, provided technical oversight of Army Special Operations

52

psychologists and became an author of an Army Inspector General Report on

detainee operations. The court did not give explicit consideration to appellants’

access vel non to the media. Appellants contend that this was error and argue that

appellees failed to present evidence that would have supported a legal

determination that each of the appellants is a public official.

Appellants argue in particular that the issue of their status as public officials

is one that appellees raised as an affirmative defense and for which appellees

accordingly bore — but failed to meet — the burden of proof. They cite the

precedent of courts in California, 43 which have held that when an anti-SLAPP

defendant asserts, in an anti-SLAPP special motion to dismiss, the affirmative

defense of conditional privilege — which includes the defense that an alleged

defamatory statement concerned a public official and thus is protected unless made

43

The California anti-SLAPP statute was on the Council’s radar when it

enacted the D.C. Anti-SLAPP Act, see Report on Bill 18-893 at 3, and California

“has a well-developed body of anti-SLAPP jurisprudence.” Boley v. Atl. Monthly

Grp., 950 F. Supp. 2d 249, 255 (D.D.C. 2013). However, this court does not

invariably hew to the precedent of other jurisdictions, including California, in

interpreting their anti-SLAPP statutes. See Saudi Am. Pub. Rels. Affs. Comm., 242

A.3d at 611 (declining to “selectively follow other state court decisions” in

interpreting the D.C. Anti-SLAPP Act).

53

with actual malice 44 — the defendant bears the initial burden of proof of

establishing the facts necessary to support that affirmative defense. 45 However,

this court explained in Mann that “[t]he standards against which the court must

assess the legal sufficiency of the [plaintiff’s] evidence [in addressing a D.C. Anti-

SLAPP Act special motion to dismiss] are the substantive evidentiary standards

that apply to the underlying claim and related defenses and privileges.” 150 A.3d

at 1236 (emphasis added). That statement seems to envision that under the D.C.

Anti-SLAPP Act, it was appellants who bore the burden of coming forward with

evidence to support a determination that they are not public officials. We think an

interpretation that assigns this burden to defamation plaintiffs, like appellants, even

as to defendants’ asserted affirmative defense is necessary to give meaning to the

44

See N.Y. Times, 376 U.S. at 298 (Goldberg, J., concurring) (stating that the

Constitution affords “a ‘conditional privilege’ immunizing nonmalicious

misstatements of fact regarding the official conduct of a government officer”).

45

See, e.g., Davis v. Elec. Arts, Inc., 775 F.3d 1172, 1177 (9th Cir. 2015)

(citing Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, 35

Cal. Rptr. 3d 31, 44 676 (Ct. App. 2005) (explaining that although the California

anti-SLAPP statute “places on the plaintiff the burden of substantiating its claims,

a defendant that advances an affirmative defense to such claims properly bears the

burden of proof on the defense”)); see also Bently Reserve LP v. Papaliolios, 160

Cal. Rptr. 3d 423, 435 (Ct. App. 2013) (“When evaluating an affirmative defense

in connection with . . . an anti-SLAPP motion, the court . . . should consider

whether the defendant’s evidence in support of an affirmative defense is sufficient,

and if so, whether the plaintiff has introduced contrary evidence, which, if

accepted, would negate the defense.”).

54

Act’s burden-shifting provision; after all, in the summary judgment context even

outside the context of an Anti-SLAPP Act motion, a non-moving party (here,

appellants) always has the burden of “mak[ing] a sufficient showing on an

essential element of [its own] case with respect to which [it will bear the burden of

proof at trial].” 46 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also id.

at 325 (rejecting the notion “that the burden is on the party moving for summary

judgment to produce evidence showing the absence of a genuine issue of material

fact, even with respect to an issue on which the nonmoving party bears the burden

of proof”). But even if the quoted language from Mann means no more than that

the burden is on appellants to demonstrate that appellees cannot shoulder their

burden of proving their claims that appellants are public officials, appellants still

must bear some of the burden on this issue.

And, in any event, as regards questions of law such as whether a defamation

plaintiff is a public official, see Thompson, 134 A.3d at 312, “burdens of proof

have no place,” Rogers v. Home Shopping Network, Inc., 57 F. Supp. 2d 973, 983

& n.5 (C.D. Cal. 1999) (explaining that “[b]urdens are relevant when evidence is

46

In a defamation case such as this one, the essential elements to be proven

include that the allegedly defamatory statement was made “without privilege.”

Mann, 150 A.3d at 1240.

55

ambiguous or evenly balanced,” but that “the issue of who bears the ‘burden of

proof’ . . . cannot affect the legal question”). See Marinelarena v. Barr, 930 F.3d

1039, 1049 (9th Cir. 2019) (“[A] pure question of law . . . is unaffected by

statutory burdens of proof.”).

We conclude that we should remand the issue of appellants’ public-official

status for the Superior Court to make the determination in the first instance, based

on applying all of the relevant considerations and on a more fully developed

record. Appellants emphasized at oral argument that some facts bearing on their

status as public officials vel non is not in the record. They also suggest that the

truth or falsity of some of the Report’s content (such as insinuations that

appellants’ “private deliberations about APA policies . . . had [an] effect on

governmental policies”) is relevant to resolution of the public-official issue.

Further, the present record affords us no insight into matters such as whether

appellants’ policy-drafting efforts were types of tasks inherent in their roles as

military officers, or whether they were assigned or undertook their efforts, alleged

in the complaint or discussed in the Report, based on their “particular proclivities.”

Mandel, 456 F.3d at 205-06 (explaining how “the factual record, at the summary

judgment stage, was too uncertain to warrant a legal conclusion either way” about

56

the public-official status of the plaintiff assistant state’s attorney). No discovery

was conducted to assist in resolution of whether any or all of the appellants had

“substantial responsibility for or control over the conduct of governmental affairs”

by virtue of their positions (or whether, as they assert, they merely “executed the

policy decisions of their superiors”); or whether appellants had access to the media

to defend their reputations. 47 We have not overlooked that appellants’ request for

discovery does not appear to have been directed at obtaining information relevant

to the public-official issue, but we are also mindful that appellants were describing

the targeted discovery they wanted the court to permit, and they understandably

focused on materials they thought would enable them to prove actual malice.

We acknowledge that an early resolution of the public-official issue is

preferable so that the parties “will know what case they are preparing and may be

expected to try” and to enable them to avoid “unnecessary time, effort, and

expense of preparing two cases.” SACK, § 5:4.2 at 5-84 (advocating for resolution

of the public-figure issue “at the earliest opportunity that the state of the record

47

To be sure, the record does contain some relevant evidence on this point.

It discloses that in 2008, appellant James published a memoir (Fixing Hell: An

Army Psychologist Confronts Abu Ghraib) that discussed the work of the PENS

Task Force. This may have some bearing on the access-to-the-media issue, at least

as to appellant James. This underscores, too, that the conclusion as to public-

official status may not be the same for each of the appellants.

57

will permit”); see also Miller v. Transam. Press, Inc., 621 F.2d 721, 724 (5th Cir.

1980) (advising that the question of public-figure status should “be answered as

soon as possible”). “It does not follow, however, that the issue should always be

decided as a preliminary matter,” because “[t]here are cases in which the pretrial

record is simply inadequate for proper determination of the issue.” SACK, § 5:4.2

at 5-84; see also Mandel, 456 F.3d at 204 (“[T]here are cases in which it may not

be possible to resolve the [public-official or public-figure] issue until trial.”

(internal quotation marks and citation omitted)). We think this is such a case.

In sum, as to the public-official issue, we conclude, again, that appellants

were entitled to discovery in an effort to meet their evidentiary burden to show a

likelihood of prevailing against appellees’ asserted defenses and privileges. We

therefore decline to resolve the issue of their public-official status in this appeal.

Instead, “we authorize the . . . [p]arties, if they wish, to seek further consideration

of [the public-official] issue on remand.” Saudi Am. Pub. Rels. Affairs Comm., 242

A.3d at 612 n.13.

58

C. Republication

Appellants’ republication claim (Count 11 of the Supplemental Complaint)

alleges that on August 21, 2018, the APA’s General Counsel sent an email to the

APA Council of Representatives listserv, which includes persons who are not APA

Council members, containing a link to an online APA Timeline page that in turn

contains a link to the Report (as well as over 170 links to other documents,

including some documents critical of the Report). Appellants assert that the email

“constituted a separate communication of the defamatory Report to both the same

persons and new persons” 48 and, along with some changes the APA made to its

website, constituted a republication by all of the appellees (including Sidley and

Hoffman, based on the claimed “foreseeab[ility]” of the putative republication).

48

Appellants point to statements in two affidavits averring that as a result of

the email, the Report reached some “new and different readers.” See Affidavit of

Sally Harvey in Support of Plaintiffs’ Memorandum in Opposition to Defendants’

Second Set of Special Motion to Dismiss Under D.C. Anti-SLAPP Act, ¶ 6

(“Because the email announcement of the republished Report was posted to the

Council listserv, which included recipients who are not Council members as well

as Council members who were different from those Council members receiving the

Report in 2015, the Report reached new and different readers.”); Affidavit of

Russell Newman in Support of Plaintiffs’ Memorandum in Opposition to

Defendant’s Second Set of Special Motion to Dismiss Under D.C. Anti-SLAPP

Act (same averment).

59

The Superior Court concluded as a matter of law that there was no

republication on August 21, 2018. 49 The court relied on the record evidence that

the APA General Counsel’s email did not contain a direct link to the Report 50

Further, the court reasoned that “there is no evidence that Defendant APA intended

49

The Superior Court summarized the relevant law as follows:

Whether the publisher of a defamatory statement may be

liable for republication depends on whether the publisher

“edits and retransmits the defamatory material or

redistributes the material with the goal of reaching a new

audience.” See Eramo v. Rolling Stone, LLC, 209 F.

Supp. 3d 862, 880 (W.D. Va. 2016) (internal citations

omitted). “In the context of internet articles . . . courts

have held that ‘a statement on a website is not

republished unless the statement itself is substantively

altered or added to, or the website is directed to a new

audience.’” Id. (internal citations omitted) (emphasis

added). Thus, the relevant inquiry focuses on whether

there has been a change in the content of the defamatory

statement or whether the publisher actively sought a new

audience.

March 12, 2020, Order at 11.

50

The court’s emphasis on the use of a hyperlink was consistent with the

holdings of other courts regarding the posting of hyperlinks. See, e.g., Lokhova v.

Halper, 995 F.3d 134, 142 (4th Cir. 2021) (quoting the district court’s observation

that “although creating hypertext links to previously published statements may

technically direct audiences’ attention to the prior dissemination of those

statements, such links do not constitute republication.” (internal quotation marks

and citation omitted)); id. at 143 (noting that “courts have consistently agreed that

‘[m]erely linking to an article should not amount to republication’”); In re Phila.

Newspapers, LLC, 690 F.3d 161, 175 (3d Cir. 2012) (“[T]hough a link and

reference may bring readers’ attention to the existence of an article, they do not

republish the article”).

60

to, or actually did, reach a new audience” and remarked that appellants’ contention

that the APA sought a new audience by sending the email “exaggerates the

available evidence.”

This court — which, at least for statute-of-limitations purposes, has adopted

the so-called “‘single publication’ rule,” i.e., the rule that “a book, magazine, or

newspaper has one publication date, the date on which it is first generally available

to the public,” Mullin v. Wash. Free Weekly, Inc., 785 A.2d 296, 298 n.2 (D.C.

2001) — has not previously decided whether defamatory material is republished

when a hyperlink directing the reader to it is posted on a website. We decline to

decide the issue on the present record. We conclude that, just as with respect to the

actual-malice and public-official issues, the republication issue is one as to which

appellants should be given an opportunity for discovery. The Superior Court’s

remarks — about there being “no evidence that [d]efendant APA intended to, or

actually did, reach a new audience” and about appellants’ “exaggerat[ion of] the

available evidence” — raise the question whether the available evidence on these

points might be expanded through discovery. 51 We also think it possible that a

51

Regarding whether the General Counsel’s email actually might have

reached new readers, it does seem clear that appellants’ affiants were not

themselves part of any new audience because the record indicates that they were

well aware of the 2015 publication before 2018: the record shows that affiant

61

more fully developed record could illuminate factors that conceivably would affect

our decision whether to recognize republication, for example, whether a website is

managed statically or dynamically, the context of a particular hyperlink, and the

degree of removal (if any) of the hyperlink from the defamatory content (i.e.,

whether and how many additional steps are necessary to reach the defamatory

content from the hyperlink in question).

III. Conclusion

For the reasons discussed above, we reverse the judgment of the Superior

Court dismissing appellants’ complaint and remand for further proceedings

consistent with this opinion.

So ordered.

Harvey (see supra note 48) led a “careful examination” of the Report and

“provided a detailed response” in November 2015, and affiant Newman was a

plaintiff in the case when it was filed in 2017.