Sherrod’s Advances Suit Against Breitbart & Co.

     (CN) – Former U.S. Department of Agriculture official Shirley Sherrod can pursue claims that the late right-wing blogger Andrew Breitbart defamed her, the D.C. Circuit ruled.
     Sherrod had sued Breitbart and Larry O’Connor, a Breitbart.com editor, over a video that Breitbart had edited heavily to allegedly suggest that she was racist against whites.
     Days after Breitbart’s clip went viral in July 2010, Sherrod allegedly had to pull her car over at the behest of the White House to send an email on her BlackBerry giving her resignation from the post of Georgia rural development director for the U.S. Department of Agriculture.
     In the video, taken from footage of a recent banquet hosted by the National Association for the Advancement of Colored People, Sherrod discusses how she felt about helping a poor white farmer in her capacity as Georgia Field Director of the Federation of Southern Cooperatives some 24 years earlier.
     The White House later apologized for seeking her resignation, and offered Sherrod a new position at the Department, which she declined.
     Breitbart and O’Connor sought to dismiss the suit under D.C.’s anti-SLAPP (strategic lawsuits against public participation) statute.
     They argued that Breitbart’s post was part of a “months-long and very loud public clash between Tea Party conservatives and the NAACP and its allies in Congress.”
     A federal judge denied the motion in February 2012, finding the statute inapplicable and the motion untimely.
     Breitbart died weeks later of heart failure, and O’Connor failed Tuesday to have a three-judge panel of the D.C. Circuit reverse the denied dismissal.
     Though Breitbart and O’Connor had requested an extension to answer the complaint, that maneuver did not also delay the time restrictions they faced to seek dismissal via the anti-SLAPP law.
     “Every court to have considered this question has held that Rule 6(b) may be used only to extend time limits imposed by the court itself or by other Federal Rules, but not by statute,” Judge Raymond Randolph wrote for the court.
     “It follows that the district court’s granting of the ‘Consent Motion’ to extend time pursuant to Rule 6(b) could not have extended the D.C. statute’s 45-day limit,” he added. “The district court therefore properly denied as untimely defendants’ motion to dismiss under the District of Columbia’s anti-SLAPP Act.”
     Judge Thomas Griffith clarified the court’s jurisdictional position in a concurring opinion, saying he wanted to “emphasize the limits of our power on this occasion.”
     “I join the court’s conclusion only because O’Connor failed to make any argument for why his case is legally distinguishable from Argentine Republic [v. Nat’l Grid Plc],” Griffith wrote. “We said enough about the meaning of Rule 6(b) in Argentine Republic that we may settle this case without ‘pronounc[ing] upon the meaning’ further.”

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