Jason Van Dyke. Courtesy photo

For nearly seven years, the U.S. Court of Appeals for the Fifth Circuit has managed to avoid answering a vital First Amendment question: Can Texas’ Anti-SLAPP statute be used to defeat defamation claims filed in federal courts?

The case that may force the Fifth Circuit to answer that question involves an attempt to use the statute to defeat a $100 million federal lawsuit filed by a Texas attorney claiming he was fired from a law firm because of internet postings accusing him of being a “Nazi” and a “white supremacist.”

Jason Van Dyke, a Denton attorney, filed the suit in a Denton County state district court seeking damages against Thomas Christopher Retzlaff, a critic who last year filed a complaint against Van Dyke with the State Bar of Texas. Retzlaff later removed the suit to federal court and moved to dismiss it under the Texas Citizen’s Participation Act (TCPA)—a law passed by the Texas Legislature in 2011 that allows judges to quickly dismiss cases that infringe on free speech rights, and forces a plaintiff to pay the defendant’s court costs.

Last month, U.S. District Judge Amos Mazzant of Sherman denied Retzlaff’s motion to dismiss, ruling that the Fifth Circuit has yet to address whether the TCPA applies in federal court. Specifically, Mazzant noted that the Fifth Circuit has yet to perform a so-called Erie analysis on the matter, which calls for an analysis of whether a state law is procedural or substantive. State procedural rules are not applied in federal court. If the law is held substantive, the court then determines whether it conflicts with federal law—and if it does, then federal law applies.

Retzlaff appealed Mazzant’s decision to the Fifth Circuit on July 30 and also filed a motion to stay proceedings before Mazzant while the matter pends before the Fifth Circuit. In his motion for a stay, Retzlaff argued to Mazzant that the judge overlooked a 2009 ruling by the Fifth Circuit in Henry v. Lake Charles American Press that held the Louisiana anti-SLAPP statue applies in federal court under an Erie analysis.

Mazzant granted a stay in the case in a July 31 opinion but took offense to Retzlaff’s argument that the Fifth Circuit has already ruled that a state anti-SLAPP statute applies in federal court under Erie.

“Defendant is incorrect. In fact, such a representation is not only misleading but also disrespectful,” Mazzant wrote, noting that the Fifth Circuit’s decision last year in Block v. Tannenhaus rejects the contention that applicability of state anti-SLAPP statues in federal court was well-settled law.

“Specifically, the Fifth Circuit stated that ‘the applicability of state anti-SLAPP statues in federal court is an important and unresolved issue in this circuit,’” Mazzant wrote. “Moreover, the Fifth Circuit cited to numerous opinions, which post-date Henry, that make clear that the issue remains an open question.”

Jeffrey Dorrell, a Houston attorney who represents Retzlaff, said 29 states have anti-SLAPP laws, and numerous federal circuits have addressed and are split over the issue of whether they can be applied in federal courts within their jurisdiction.

And Dorrell believes his client’s case will be the case that forces the Fifth Circuit to decide which side they fall on.

“I don’t see how they can avoid it. They’ve tried to avoid it for years,’’ Dorrell said. “In half a dozen cases, they have side-stepped deciding whether the Texas anti-SLAPP statute applies in federal court. They have decided it applies in Louisiana, but they have not decided whether that translates to Texas.’’

Dorrell also said that he regrets offending Mazzant by his argument that the TCPA should be applied in Texas federal courts.

“What appears to have offended him was in my motion for a stay, I went into a fairly detailed analysis of other courts and circuit courts and the Fifth Circuit’s decision in the Henry case that are at odds with his decision that the TCPA didn’t apply,” Dorrell said. “He didn’t like that. I just hate that he had that reaction to it, but I was not trying to stick my finger in his eye.”

Van Dyke, reached by email, said he agrees with Mazzant’s ruling that the TCPA doesn’t apply to his defamation case, but is eager for the Fifth Circuit to rule because of a split in the circuits on the issue.

“This is something that the Fifth Circuit should rule on,” Van Dyke wrote in his email. “It is especially important in light of the current jurisprudence from the Texas Supreme Court, which has applied the TCPA in a broad and sweeping manner that goes far beyond defamation claims and extends [to] claims for breach of contract, tortious interference with contract, theft of trade secrets, and even to employment law litigation.”

“If the issue is not finally decided, I think that it’s something that we are going to continue to see argument and disagreement on at the trial court level,” Van Dyke added.