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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 “AntiSLAPP 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, highlevel 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 

 

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

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. AntiSLAPP 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-todismiss 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 attorneyfee-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 specialmotion-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-todismiss 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 AntiSLAPP 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 antiSLAPP 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 antiSLAPP 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 antiSLAPP 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. AntiSLAPP 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 negligence31 — 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. 

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

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 burdenshifting 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 expeditedhearing 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 expeditedhearing 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 intent34 (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-feeshifting 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 official36 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 commonlaw 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 titles40 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 malice44 — 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. AntiSLAPP 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 publicofficial 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 Report50 

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.