A government contract consultant claims allegations of false statements by a government contractor to a federal agency about the company’s failure to pay their workers were covered up by Anti-Slapp law.
It is also why that consultant, Terrance Walker, claims he took his challenge to the Supreme Court on December 2, 2021, filing a Petition for a writ of Certiorari (Case 21-832 see court docket)
Walker is challenging state Anti-Slapp law and its use in federal court. SLAPP refers to “Strategic Lawsuit Against Public Participation.” It refers to a lawsuit brought in an effort to intimidate a person or business like a news outlet from reporting on corporate misconduct or government malfeasance. In order to protect said persons and organizations, states like California began enacting Anti-SLAPP laws in the 1990’s. Nevada has similar language to California’s law. See Shapiro v. Welt, 389 P.3d 262, 268 (Nev. 2017)
“Based on its legislative history, the original intent of the anti-SLAPP motion was to encourage public participation. The anti-SLAPP motion to dismiss was designed to allow people to speak out against wrongdoings without being afraid that the defendant would engage in expensive legal maneuvers and machinations, solely for the purpose of wearing down (and possibly bankrupting) the plaintiff.” Nina Golden, SLAPP Down: The Use (and Abuse) of Anti-SLAPP Motions to Strike, 12 Rutgers J. L. & Pub. Pol’y 426, 427 (2015)Walker claims the application of Anti-SLAPP statutes in federal courts is becoming murkier with each coming new appellate opinion. “Corporations and the Courts have flipped the original intent of the statute in allowing big corporations to use them against news organizations and average people in various types of suits in which those corporations were supposed to face trial for misconduct or owing people money”, he says. In fact, as recently in 2019, a Court had to consider the “the statute’s application to employment discrimination and retaliation claims” Wilson v. Cable News Network, Inc., 7 Cal.5th 871, 881 (Cal. 2019)
A key question Walker is asking is,
“How did SLAPP cases metamorphose from suits where large corporations were trying to silence the public, whether or not their cases had merit, to large corporations using the anti-SLAPP motion to silence the public?” SLAPP DOWN: THE USE (AND ABUSE) OF ANTI-SLAPP MOTIONS TO STRIKE Assoc. Professor Nina Golden Summer 2015 Rutgers Journal of Law & Public Policy Vol 12:4 pg 35 Walker claims this is what happened in his case. Walker v. Intelli-heart Servs., Inc., Case No. 3:18-cv-00132-MMD-CLC in the U.S. District Court of Nevada.
The District Court of Nevada first described Walker’s lawsuit as being about money,
“According to Walker, Intelli-Heart was routinely late in paying Winters his commission payments on the VA contracts he helped Winters secure. As a result, Winters was late paying Walker. (ECF No. 4, ¶ 39-53). By November 2017, the payments to Winters were approximately 120 days late. (Id.) Due to the late payments******“Intelli-Heart cancelled its contract with Winters. Walker claims Intelli-Heart improperly cancelled its contract with Winters, which resulted in the breach of the agreement between himself and Winters.” Walker v. Intelli-Heart Servs., Inc., 3:18-cv-00132-MMD-CBC, 2 (D. Nev. Apr. 9, 2019)
Yet, after the government contractor and their co-Defendants filed Anti-Slapp motions, the U.S. District Court judge Miranda Du subsequently held,
“Plaintiff’s Complaint is based entirely on Defendants’ good faith communications in furtherance of their right to petition or free speech in connection with an issue of public concern” Walker v. Intelli-heart Servs., Inc., Case No. 3:18-cv-00132-MMD-CLC, *6 (D. Nev. Mar. 4, 2020).
According to Walker, the District Court — without granting Walker an opportunity to discover any evidence on these “good faith communications” — entered a judgment. Yet, it acknowledged,
“ the Court is required to consider evidence in making a determination under these paragraphs. See NRS § 41.660(3)(d)” Walker v. Intelli-heart Servs., Inc., Case No. 3:18-cv-00132-MMD-CLC, *6 (D. Nev. Mar. 4, 2020).
Walker (in his brief in Ninth Circuit case 20-15688) and another party in a different U.S. Ninth Circuit Court of Appeals case (Doug FENNELL v. Rob Bonta 20-16487) addressed these failings,
“ anti-SLAPP laws in general are depriving Plaintiffs access to courts and trial by jury as judges are making decisions before discovery or evidence is submitted.”. Doug FENNELL v. Rob Bonta 20-16487, (9th Cir. 2021)(Dkt 18, pg 5)
As one lawyer noted,
“Time and time again, opinions have restated the principle that ‘[t]he court does not weigh evidence or resolve conflicting factual claims’ in prong two. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.) As it turns out, however, if the courts don’t exactly weigh evidence, they seem to engage in a process very much like weighing evidence or resolving conflicts in the evidence all the time in the anti-SLAPP context.’ ” https://www.advocatemagazine.com/article/2020-may/the-anti-slapp-statute-in-2020
The District Court judge in Walker’s case considered “evidence” but in the Ninth Circuit appeal, Walker v. Intelli-Heart Services., 20-15688, (9th Cir. Sep. 23, 2021), the Circuit panel called what the District Court did, weighing “legal deficiencies”.
Walker claimed Intelli-heart was using Anti-Slapp law to shield itself of a “potential” federal crime , citing U.S. v. Bazantes 978 F.3d 1227 (11th Cir 2020)(Affirming conviction of a federal contractor under the False Statements Act of person(s) who “submitted to the agency certified payroll forms containing false, fictitious, and fraudulent statements” Title 18 § 1001(a)(3)). Walker alluded to another complaint by Intelli-heart Services worker Dexter Devera that alleged the Intelli-heart had long been making late payments and bouncing checks as a matter of policy. Walker claimed, thus, that Intelli-heart’s statements to the VA that it was making timely payments could not have been good faith.
Even though the District Court found it critical to its “good faith communications” analysis that “Defendants’ communications were at least made without knowledge they contained any false statements“, the Ninth Circuit did an another about-face. After Dexter Devera’s revelations (showing that IHS knew it was making late payments but stating otherwise), the Ninth Circuit charted a different course claiming,
“Walker’s assertion that Defendants made false statements to the VA about the timeliness of their payments to non-party James Winters is beside the point;” Walker v. Intelli-Heart Servs., 20-15688, (9th Cir. Sep. 23, 2021)
Walker filed a Rehearing Petition on Sept 24, 2021 in the Ninth Circuit addressing these issues, but rehearing was denied on Oct. 27, 2021. “Not suprising”, says Walker who has been writing legal briefs for himself and lawyers for almost 30 years, as well as hosting a public access show segment on judicial corruption. “I knew the fix was in as soon as discovery was stayed by the Magistrate, out-of-the blue, which has no legal support. This was done before the Anti-Slapp motions were filed, indicating to me that Nevada must have a shadow docket of its own. Then, the District Court judge ignored every argument in my 40 page opposition claiming she couldn’t understand it or it was over 24 pages, when she is the one that agreed I could file a 40 page opposition. She chose to ignore the record and contracts, as well. She is another Duck Dodgers — a phrase I coined a decade ago on my show in response to judicial officers who duck issues to get to their desired result. Lots of lawyers secretly confide to me that judges do this and more– much more will come out soon. Duck Dodgers is also a reference to the arrogant and bumbling Warner brothers character.”
©1953, 2003 Warner Bros.
Walker continues, “The District Court judge was obviously channelling former Chief Justice Roger Taney of ‘you have no rights [we’re] bound to respect‘ fame. It seems old attitudes die hard in this legal system.”
former Chief Justice Roger Taney
Walker claims that what the Ninth Circuit panel did, next, was similar to what a justice said happened in another case, “work backwards to rationalize……. through a series of inaccurate and internally inconsistent statements” Vega-Anguiano v. Barr, 982 F.3d 542, 557 (9th Cir. 2019)
Walker claimed the Ninth Circuit ignored his allegations of being owed payments and the denial of discovery. He claims the Ninth Circuit inappropriately excused the District Court’s failure to rule on Walker’s “federal regulation” violations by calling them “legal conclusions”. Walker asserts the lower courts changed his allegations, using Anti-Slapp law, from being a second-tier subcontractor under F.A.R. 52.232-40 to a “[direct] subcontractor” under Intelli-heart Services –the latter claim was no where in his complaint. He claimed this was a “straw man argument” used to defeat his claim. Most importantly, Walker alleges the Ninth Circuit side-stepped his claim that federal courts should not employ state Anti-Slapp procedure which he unmistakably argued.
Walker, thus, filed his Petition for a writ of Certiorari in the Supreme Court. Walker relies on five of six federal circuit court of appeals which hold that anti-SLAPP statutes (and state procedural rules) do not apply in federal courts, citing Supreme Court precedent, Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393 (2010))
Citing Shady Grove, La Liberte v. Reid 966 F.3d 79, 86 (2nd 2020) held the Anti-Slapp law of California inapplicable in Federal Court and noted the,
“circuits split on whether federal courts may entertain the various state iterations of the anti-SLAPP special motion. The Fifth, Eleventh, and D.C. Circuits hold that they are inapplicable in federal court on the ground that they conflict with Federal Rules of Civil Procedure 12 and 56. See Klocke v. Watson, 936 F.3d 240, 242 (5th Cir. 2019) (Texas); Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1350 (11th Cir. 2018) (Georgia); Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1335 (D.C. Cir. 2015) (D.C.)”
As one Law Journal Article noted a few years ago,
“This circuit split will have to be settled in one of two ways: either the Supreme Court will have to decide the applicability of state anti-SLAPP laws in federal diversity cases, or Congress can pass its own federal version of an anti-SLAPP law” Freeman, Aaron, “The Future of Anti-SLAPP Laws” (2018). SLU Law Journal Online. 26 *5 . appearing at: https://scholarship.law.slu.edu/lawjournalonline/26
Walker has put the issue squarely before the high Court in his Petition filed December 2, 2021 in which he claims that Anti-Slapp law “turned federal court pleading and discovery into a farcical guessing game”
Terrance Walker can be reached at 775-971-8679
Press release by Harry Walker, the author or Red Snapper REMF’s, (Rear Echelon M.F.’s), a spirited story of misadventures of Black U. S. Army Truck Drivers during the VietNam War. Available online Click here
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