Tenth Circuit Rejects Anti-SLAPP Appeals

In Coomer v. Make Your Life Epic LLC, the Tenth Circuit held that denials of anti-SLAPP motions under Colorado law are not immediately appealable via the collateral-order doctrine.

The court drew an interesting line between appeals involving primarily legal issues—which can warrant immediate appeal—and those involving primarily factual issues—which don’t. The court explained that fact-heavy appeals are difficult to separate from an action’s underlying merits. Those appeals also come with a risk of duplicative, piecemeal appellate review.

Anti-SLAPP appeals fell on the fact side of the line, as they require appellate courts to assess the potential merits of a plaintiff’s claim.

Anti-SLAPP Appeals

Several states have passed laws protecting defendants from suits brought with the purpose or effect of chilling speech and petition rights. These suits are often called “strategic lawsuits against public participation,” or “SLAPPs.” The laws protecting defendants from these suits are often called “anti-SLAPP laws.”

These laws can provide both procedural and substantive protections. On the procedure side, anti-SLAPP laws provide defendants with a special motion to dismiss that they can bring early in the litigation, staying all discovery until the district court resolves the motion. On the substance side, these motions can require the trial court to determine the potential merit of an action before allowing it to proceed.

These laws have raised several issues in federal court. One issue is whether these laws apply at all; some federal courts have applied state anti-SLAPP laws, while others have held that doing so violates the Erie doctrine. Anti-SLAPP laws can also raise potential Seventh Amendment issues, as these laws ask trial courts to assess the plaintiff’s likelihood of success on the merits.

Atop these is a question of appellate jurisdiction: Is the denial of an anti-SLAPP motion immediately appealable? The courts of appeals have split on this issue.

The Coomer Appeal

Simplifying only a little bit, Coomer involved Colorado’s anti-SLAPP law. The defendant had allegedly defamed the plaintiff by publishing claims that the plaintiff had rigged the 2020 presidential election. The defendant filed a special motion to dismiss, and the district court determined that the plaintiff was likely to succeed on his defamation claim. The district court accordingly denied the anti-SLAPP motion.

The defendant then appealed to the Tenth Circuit, arguing that the anti-SLAPP denial was immediately appealable via the collateral-order doctrine.

No Immediate Appeals for Colorado’s Anti-SLAPP Law

The Tenth Circuit dismissed the appeal. The decision focused on the collateral-order doctrine’s second requirement: that the appeal involve an issue that is completely separate from the merits. The Tenth Circuit concluded that insufficient separation existed because anti-SLAPP motions involve fact-related matters.

A Sidebar on Immunity

The defendant’s argument focused on a claimed immunity from suit. These immunities exist to shield litigants from the burdens and uncertainties of litigation. And immunities are often prime candidates for collateral-order appeals. According to the defendant, Colorado’s anti-SLAPP law provided an immunity from litigation that protected important First Amendment interests.

The Tenth Circuit was having none of it. As a preliminary matter, the court questioned whether Colorado’s anti-SLAPP law actually provides an immunity from litigation: “Colorado courts have consistently described Colorado’s anti-SLAPP statute as merely providing defendants with procedural expediency: the opportunity to have the court make an early assessment about the merits’ of the lawsuit.” The Tenth Circuit also pointed out that an immunity from suit does not automatically permit a collateral-order appeal.

The Factual Nature of Anti-SLAPP Appeals

Regardless of these preliminary points, the Tenth Circuit based its decision on the factual nature of anti-SLAPP motions. Looking to the Supreme Court’s decisions in Mitchell v. Forsyth and Johnson v. Jones, the Tenth Circuit drew a distinction between interlocutory appeals that involve purely legal issues and those that involve fact-related disputes:

The Supreme Court has instructed that, when, as here, the challenged order “resolved a fact-related dispute,” rather than a “purely legal issue,” the benefits of an immediate appeal are likely outweighed by the cost of disrupting the ordinary course of litigation—even if a substantial public interest is at stake.

(Quoting Johnson.) So “an interlocutory appeal concerning a factual issue is an unwise use of appellate courts time.”

When it comes to anti-SLAPP motions, “the underlying facts necessarily take center stage.” In Coomer, for example, the district court considered the evidence to determine whether the plaintiff was likely to succeed. The anti-SLAPP decision thus involves an assessment of the record. And “if what is at issue . . . is nothing more than whether the evidence could support a finding that particular conduct occurred, the question decided is not truly ‘separable’ from the plaintiff’s claim.” (Quoting Behrens v. Pelletier.)

The Tenth Circuit added that immediate review of anti-SLAPP denials would risk piecemeal appellate review. An immediate appeal would ask the Tenth Circuit to address the “potential merit” of the plaintiff’s claims. An appeal after a final judgment might ask the court to address the “actual merit” of those claims.

A Few Thoughts on Coomer & Anti-SLAPP Appeals

Coomer has given me several things to think about.

The Split on Anti-SLAPP Appeals

The first involves the long-simmering circuit split on anti-SLAPP appeals. The First, Fifth, and Ninth Circuits have all allowed appeals from anti-SLAPP denials under various states’ laws. (You can see some recent examples from old roundups here and here.) The Tenth Circuit joins the Second Circuit in rejecting these appeals. It’s also worth noting that the Ninth Circuit’s caselaw might be in some flux. Several Ninth Circuit judges have questioned their approach to this issue. (Again, see some recent examples from old roundups here, here, and here.) The Ninth Circuit was set to take this issue en banc last month. But argument has been stayed pending a settlement of the underlying dispute.

At one time, I thought that anti-SLAPP denials should be immediately appealable collateral orders. But I think I might be coming around to the no-appeal side of this split. To be sure, anti-SLAPP laws often provide some sort of immunity from litigation. But more and more, I don’t think immunities should be immediately appealable under the collateral-order doctrine. If immunities are to be immediately appealable, I think that should come from a statute or rulemaking.

The Law/Fact Distinction in Anti-SLAPP Appeals

Second is the fact/law distinction that Coomer draws. It comes from a distinction drawn in the qualified-immunity context. Denials of qualified immunity are immediately appealable. But when qualified immunity is denied at summary judgment, the scope of appeal is supposed to be limited. Courts of appeals normally cannot immediately review whether the record evidence supports the district court’s determination of what facts a reasonable jury could find. The appellate court must instead take those facts as given and determine whether they amount to a violation of clearly established law. In summary judgment’s terms, courts of appeals can address the materiality of any factual disputes but not their genuineness.

Coomer essentially holds that all anti-SLAPP appeals are too factual in nature to warrant an immediate appeal. This is different from qualified immunity, in which some denials are immediately appealable (or, to be more precise, some aspects of those denials are immediately appealable).

But Coomer is probably correct. Anti-SLAPP appeals do not involve a relatively abstract legal question like qualified-immunity appeals. Anti-SLAPP appeals instead instead involve an assessment of an action’s merits. That might involve some legal questions. But it’s going to be predominantly factual.

Further Action in the Tenth Circuit?

Finally, I wonder whether the Tenth Circuit might be interested in considering this matter en banc. In Farmland Partners, Inc. v. Fortunae—an unpublished opinion from 2021—the Tenth Circuit held that a without-prejudice dismissal of an anti-SLAPP motion is not immediately appealable. (See my discussion of that decision in an old weekly roundup.) Judge Briscoe concurred in that decision but said that “there are . . . good arguments to be made in support of our having collateral order jurisdiction over the category of order at issue here.” So there might be some support on the Tenth Circuit for allowing anti-SLAPP appeals.

Coomer v. Make Your Life Epic LLC, 2024 WL 1726411 (10th Cir. Apr. 23, 2024), available at the Tenth Circuit and Westlaw