May 13, 2015
Abbas, anti-SLAPP Statutes, and Dicta
In Abbas v. Foreign Policy Group, LLC, the United States Court of Appeals for the District of Columbia Circuit purports to have held that state anti-SLAPP statutes do not apply in federal court, because the former are procedural and, therefore, are displaced by the Federal Rules of Civil Procedure. But did the court really do so? I don’t think it did.
On appeal, both the anti-SLAPP statute and federal procedure were invoked as bases for upholding the district court’s order of dismissal, and dismissal had been sought on both of these bases in the district court below. The court of appeals ultimately agreed that the district court’s order of dismissal was proper as a matter of federal procedure, and it affirmed the district court’s judgment on this basis. Thus, it was unnecessary for the court of appeals to consider whether the anti-SLAPP statute applied in federal court. Doesn’t that render its on the applicability of the anti-SLAPP statute dicta? It does.
The only way in which the court of appeals’ analysis regarding the anti-SLAPP statute could be anything other than dicta is if that analysis somehow were necessary to the court of appeals’ decision. In footnote 5 of its opinion, the court of appeals identifies one scenario that would render an analysis of the anti-SLAPP statute necessary—an award of attorneys’ fees. As the court explains, attorneys’ fees are recoverable under the anti-SLAPP statute but not under federal procedure (in these circumstances).
But in this particular case, the district court had not yet awarded attorneys’ fees under the anti-SLAPP statute. The court of appeals’ opinion does not explicitly say so, but this fact is implicit in its decision—it could not have affirmed the district court’s judgment without qualification if it were simultaneously disapproving of a fee award. And defense counsel in the case has explicitly noted that fees had not yet been awarded below.So why did the court of appeals write a fairly lengthy analysis regarding the anti-SLAPP statute? Did it simply not notice that it was penning dicta? I suspect efficiency is the answer. Defense counsel’s recitation of the proceedings states that the district court was deferring ruling on a request for fees until after the appeal had been decided. So the court of appeals decided the issue on the first pass, rather than waiting until an actual award of attorneys’ fees was before it. But that seems little different than an advisory opinion.
Am I mistaken? Can an appellate court address an issue that seems likely (perhaps certain) to arise, but has not yet arisen in the case, without it being dicta?