Vincent Forras & Larry Klayman have asked the DC Circuit to remand the case to the District Court because the lower court granted a special motion to dismiss under the DC anti-SLAPP statute, which the DC Circuit has now held is inapplicable in federal court.
The motion presents an interesting question for the DC Circuit. At the District Court, the defendants, in addition to filing a special motion to dismiss, also moved to dismiss the complaint under Rule 12(b)(6); the lower court did not reach this question because it granted the anti-SLAPP motion.
Because the District Court’s conclusion that the Complaint was barred by the statute of limitations, and that it failed to state a claim, would be equally applicable under Rule 12(b)(6), the DC Circuit could simply retain the appeal and review it through that procedural lens.
On the other hand, it seems odd that the Circuit would review an appeal when it has rejected the procedural basis for the lower court’s decision. Given that, I suspect that the DC Circuit will remand the case to the District Court so that it can first decide whether dismissal is appropriate under Rule 12(b)(6). (BTW: the remand motion asks the DC Circuit to “order that Appellants’ case proceed” – that is not going to happen!!). While a remand might appear to be a waste of time and resources, given that the District Court is likely to hold that dismissal is still appropriate, albeit under Rule 12(b)(6), I suspect the appellate court would prefer to have the lower court first decide the motion, and then review that decision, if necessary.