LEUTHY et al v. LEPAGE

Filing 29

ORDER ON MOTION TO CERTIFY ORDER FOR INTERLOCUTORY APPEAL AND MOTION TO STAY denying 21 Motion to Certify; dismissing as moot 21 Motion to Stay By JUDGE JOHN A. WOODCOCK, JR. (CCS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
KARIN LEUTHY and KELLI
WHITLOCK BURTON
Plaintiffs,
v.
PAUL R. LePAGE, in his individual
and official capacity as Governor of
Maine,
Defendant.

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1:17-cv-00296-JAW

ORDER ON MOTION TO CERTIFY ORDER FOR
INTERLOCUTORY APPEAL AND MOTION TO STAY
Having ruled against the Governor’s motion to dismiss a lawsuit, which claims
he violated First Amendment rights by exercising viewpoint discrimination against
citizens when he deleted their comments on a social media page, the Court declines
the Governor’s request to certify the issue for interlocutory appeal to the Court of
Appeals for the First Circuit and dismisses as moot the Governor’s motion to stay the
case.
I.

BACKGROUND
Karin Leuthy and Kelli Whitlock Burton filed a Complaint pursuant to 42

U.S.C. § 1983 against Governor Paul R. LePage, in both his individual and official
capacities, alleging that by blocking their access to and by deleting their comments
on a social media page they claim is his official website, the Governor violated their

right to free speech and to petition the government for a redress of grievances
guaranteed by both the United States and Maine constitutions. Compl. (ECF No. 1).
On October 13, 2017, Governor LePage filed a motion to dismiss the Complaint
for failure to state a claim. Def.’s Mot. to Dismiss (ECF No. 9). The Plaintiffs
responded on November 3, 2017. Pls.’ Mem. of Law in Opp’n to Def.’s Mot. to Dismiss
(ECF No. 11). The Governor replied to the Plaintiffs’ response on November 17, 2017.
Def.’s Reply in Supp. of Mot. to Dismiss (ECF No. 12). On August 29, 2018, the Court
denied the Governor’s motion to dismiss because it was required on a motion to
dismiss to assume the truth of the well-pleaded facts and inferences in the Complaint.
Order on Mot. to Dismiss (ECF No. 17).
The Governor filed two motions: first, for certification of an interlocutory
appeal of the Court’s Order on the Governor’s motion to dismiss, and second, to stay
further proceedings pending resolution of that appeal. Def.’s Mot. to Certify August
29, 2018 Order for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) (ECF No. 21)
(Def.’s Mot.). On September 17, 2018, Plaintiffs filed their response to the Governor’s
motion to certify, and on September 20, 2018, the Governor filed his reply. Pls.’ Resp.
to Mot. to Certify August 29, 2018 Order for Interlocutory Appeal Pursuant to 28
U.S.C. § 1292(b) (ECF No. 23) (Pls.’ Opp’n); Def.’s Reply to Pls.’ Resp. to Mot. to Certify
August 29, 2018 Order for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) (ECF
No. 24) (Def.’s Reply).
II.

THE POSITIONS OF THE PARTIES
A.

The Governor’s Motion for Certification

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In his motion, the Governor claims that he accepts the truth of the allegations
in the Plaintiffs’ Complaint and nevertheless, should prevail as a matter of law. Def.’s
Mot. at 1 n.1. 1 He says that the “so-called ‘interactive portion’ of a social media page”
cannot be a “‘public forum’ in which the First Amendment limits the editorial
discretion of the page’s owner.” Id. The Governor maintains that “Plaintiffs’ theory
would infringe his own First Amendment rights by diluting the message he seeks to
convey and forcing him to associate with views with which he disagrees.” Id. at 3
(emphasis in original). In other words, the Governor says, “the question presented is
whether a government official acts as a speaker or instead as a regulator when he or
she exercises editorial discretion over the content on a social media page.”

Id.

(emphasis in original). The Governor concedes that the issue is “novel within this
Circuit, has generated conflicting decisions in other jurisdictions, and is of significant
and increasing importance.” Id. If the Court certifies its order to the First Circuit
under 28 U.S.C. § 1292(b), the Governor urges the Court to stay the proceedings. Id.
The essence of the Governor’s argument is that by curating his Facebook page,
the Governor is engaging in speech, which is entitled to protection under the First
Amendment. Id. at 6-7. Citing Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, 515 U.S. 557 (1995), the Governor contends that his right to “choose
the content of his own message” includes the right to “exclude a message [he does]

The pagination of the Governor’s motion differs from the ECF pagination because page one of
the Governor’s motion is entirely the caption so his argument begins on his page one, which is ECF
page two. The Court has used the ECF pagination.
1

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not like from the communication [he chooses] to make.” Id. at 7 (quoting Hurley, 515
U.S. at 573-74).
The Governor states that he would “also argue on appeal that the confusing
and difficult-to-apply ‘forum’ doctrine—which was developed in the very different
context of access to physical spaces such as public parks—should not be extended to
government speech on social media platforms.” Id. at 7 (emphasis in original). The
Governor says that a ruling in his favor “would effectively terminate this action” and
he wishes to present a legal issue that is “controlling.” Id. at 8. He also maintains
that there is a “substantial ground for difference of opinion,” since the issue involves
“one or more difficult and pivotal questions of law not settled by controlling
authority.” Id. at 9 (quoting Philip Morris Inc. v. Harshbarger, 957 F. Supp. 327, 330
(D. Mass. 1997)). Citing two district court decisions, the Governor argues that there
is “confusion and disagreement” among the district courts that have considered this
issue. Id. at 10 (citing Natale v. Pfizer, Inc., 379 F. Supp. 2d 161, 182 (D. Mass. 2005);
Morgan v. Bevin, 298 F. Supp. 3d 1003 (E.D. Ky. 2018)). The Governor says that this
issue is “of significant (and rapidly increasing) importance.” Id. He urges the Court
to stay the proceedings while the matter is resolved by the First Circuit, noting that
the discovery in this case would “involve an extraordinarily burdensome (and
constitutionally dubious) inquiry into the expressive and associational activities of
the Governor of Maine.” Id. at 11.
B.

The Plaintiffs’ Opposition

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The Plaintiffs oppose the Governor’s motion for certification. First, they point
out that the First Circuit typically does not “grant interlocutory appeals from a denial
of a motion to dismiss.” Pls.’ Opp’n at 1 (quoting Millay v. Me. Dep’t of Labor, 11-cv00438-NT, 2013 WL 105174, 2013 U.S. Dist. LEXIS 2502, at *3 (D. Me. Jan. 8, 2013)
(quoting Caraballo-Seda v. Municipality of Hormiqueros, 395 F.3d 7, 9 (1st Cir. 2005)
(quoting McGillicuddy v. Clements, 746 F.2d 76, 76 n.1 (1st Cir. 1984))).

The

Plaintiffs note that interlocutory appeals are disfavored and are to be used “only in
exceptional circumstances.” Id. at 2 (quoting Caraballo-Seda, 395 F.3d at 9 (quoting
Palandjian v. Pahlavi, 782 F.2d 313, 314 (1st Cir. 1986)). They cite the First Circuit’s
wish to avoid “piecemeal litigation” and they mention concerns about “mootness,
ripeness, and lengthy appellate proceedings.” Id. (quoting Caraballo-Seda, 395 F.3d
at 9).
The Plaintiffs argue that “[n]o exceptional circumstances exist here.” Id. at 2.
As for the Governor’s contention that he has accepted all the facts in the Plaintiffs’
Complaint, they disagree, observing that the Complaint alleges not that the Governor
exercised “editorial discretion”, but that he “censored Plaintiffs’ comments based on
viewpoint.” Id. at 3. The Plaintiffs contend that the Court correctly analyzed the
public forum issues but also maintain that the public forum question is not
determinative, because “viewpoint-based censorship . . . is prohibited in all types of
forum, whether public or not.” Id.
Next, the Plaintiffs posit that the Governor failed to address the three criteria
for § 1292(b) certification: that the order (1) “involv[es] a controlling question of law,”

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(2) “as to which there is substantial ground for difference of opinion,” and (3) for which
“an immediate appeal from the order may materially advance the ultimate
termination of the litigation.” Id. at 3 (quoting § 1292(b)). The Plaintiffs contend
that even if the Governor has presented a “controlling question of law,” the same can
be said for every motion to dismiss. Id. at 4. As for “substantial ground for difference
of opinion,” the Plaintiffs argue that “Governor LePage cites no contrary decision
within this circuit.” Id. As for the third factor, the Plaintiffs say that “there is nothing
exceptional about this filing that merits an interlocutory appeal.” Id. The Plaintiffs
worry that if the Court granted the interlocutory appeal, it would “entail lengthy
proceedings before the First Circuit with no guarantee that the appeals court would
ultimately consider the issue.” Id. at 4-5. Furthermore, the Plaintiffs argue against
the granting of a stay. Id. at 5.
C.

The Governor’s Reply

In reply, the Governor reiterates his view that “[a]n immediate appeal under §
1292(b) would both facilitate a prompt resolution of this case and promote the orderly
development of the law in a critical area of First Amendment doctrine.” Def.’s Reply
at 1.

The Governor emphasizes that despite the rule disfavoring interlocutory

appeals, the First Circuit has “routinely accepted interlocutory appeals under §
1292(b) when the relevant criteria are satisfied—even if the order involved denial of
a motion to dismiss.” Id. at 1-2 (citing SEC v. Rocklage, 470 F.3d 1, 3 (1st Cir. 2006);
Torrens v. Lockheed Martin Servs. Group, Inc., 396 F.3d 468, 471 (1st Cir. 2005);
Schafer v. Am. Cyanamid Co., 20 F.3d 1, 3 (1st Cir. 1994); Barnard v. Zapata Haynie

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Corp., 975 F.2d 919 (1st Cir. 1992); Donatelli v. Nat’l Hockey League, 893 F.2d 459,
461 (1st Cir. 1990); Miller v. New Am. High Income Fund, 755 F. Supp. 1099, 1110
(D. Mass. 1991)).
The Governor disagrees with the Plaintiffs that he is disputing the factual
allegations in the Complaint. Id. at 2. He stresses that he accepts as true “the core
factual premise of the complaint, which is that certain comments critical of LePage
were deleted from the Facebook page at issue and that he is responsible, in his official
capacity, for moderating those comments.” Id. (emphasis in original). He says that
the Plaintiffs have “nicely summarized” his argument on appeal: “whether the
deletion of comments or replies on a social media page involves government speech
(i.e. editorial discretion) or government regulation (i.e. ‘censorship’).”
(emphasis in original).

Id. at 2-3

Even if the Supreme Court and the First Circuit have

provided “general guidance” about the First Amendment forum doctrine, the
Governor continues to argue that the guidance is “confusing and difficult to apply.”
Id. at 3 (citing Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 693-94
(1992) (Kennedy, J., concurring in the judgments); Del Gallo v. Parent, 557 F.3d 58,
69 n.6 (1st Cir. 2009) (emphasis in reply)). The Governor argues that neither the
Supreme Court nor the First Circuit has provided “any meaningful guidance about
the significant and increasingly important question presented here: whether and to
what extent the forum doctrine constrains government officials’ moderation of
‘comments’ or ‘replies’ on a third-party social media site.” Id. (emphasis in reply).
The Governor is critical of the Plaintiffs for failing to cite or distinguish “contrary

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authority that this Court has expressly declined to follow.” Id. at 4 (citing Morgan,
298 F. Supp. 3d at 1003). Again, the Governor urges the Court to grant a stay, if it
grants the certification motion. Id. at 4-5.
III.

LEGAL STANDARD
Federal statutory law provides for interlocutory appeals from decisions of district

courts to circuit courts of appeal. 28 U.S.C. § 1292(a)(1). The statute imposes
significant hurdles before a district court may certify an interlocutory appeal to the
circuit court:
When a district judge, in making in a civil action an order not otherwise
appealable under this section, shall be of the opinion that such order
involves a controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the litigation,
he shall so state in writing in such order. The Court of Appeals which
would have jurisdiction of an appeal of such action may thereupon, in
its discretion, permit an appeal to be taken from such order, if
application is made to it within ten days after the entry of the order:
Provided, however, That application for an appeal hereunder shall not
stay proceedings in the district court unless the district judge or the
Court of Appeals or a judge thereof shall so order.
§ 1292(b) (emphasis in original).
The First Circuit has interpreted § 1292(b) as imposing three requirements for an
order: (1) it must involve “a controlling question of law;” (2) “as to which there is
substantial ground for difference of opinion;” and (3) for which “an immediate appeal
from the order may materially advance the ultimate termination of the litigation.”
Caraballo-Seda, 395 F.3d at 9 (quoting § 1292(b)). “Certifications under § 1292(b)
are not looked upon with favor by the First Circuit.” Lawson v. FMR LLC, 724 F.
Supp. 2d 167, 168 (D. Mass. 2010). In fact, the First Circuit has described appeals
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under § 1292(b) as “hens’ teeth rare.” Camacho v. P.R. Ports Auth., 369 F.3d 570, 573
(1st Cir. 2004).
The First Circuit has “repeatedly emphasized that ‘interlocutory certification
under § 1292(b) should be used sparingly and only in exceptional circumstances, and
where the proposed intermediate appeal presents one or more difficult and pivotal
questions of law not settled by controlling authority.’” Caraballo-Seda. 395 F.3d at 9
(quoting Palandjian, 782 F.2d at 314) (quoting McGillicuddy, 746 F.2d at 76 n.1)).
“As a general rule,” the First Circuit does not grant interlocutory appeals from a
denial of a motion to dismiss. Id. (quoting McGillicuddy, 746 F.2d at 76 n.1). This
reflects the First Circuit preference “against piecemeal litigation as well as
prudential concerns about mootness, ripeness, and lengthy appellate proceedings.”
Id. Even if, as the Governor states, the First Circuit has on rare occasion accepted
an interlocutory appeal of a ruling on a motion to dismiss, generally it will not do so.
IV.

DISCUSSION
Although the Court understands Governor LePage’s desire for a speedy and

final resolution of this case, the Court cannot conclude that this matter is appropriate
for interlocutory appeal. The problem continues to be that the parties do not agree
on the nature of the webpage at the center of this dispute. The Complaint repeatedly
describes the webpage as Governor LePage’s “official ‘Paul LePage, Maine’s Governor’
Facebook page.” Compl. ¶¶ 1, 3 (“Governor LePage’s official Facebook page”); 5 (“The
Governor’s Facebook page”). Although in his motion the Governor asserts that his
“arguments assume the truth of all allegations in the complaint,” Def.’s Mot. at 1 n.1,

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the Governor challenges the Plaintiffs’ description of the webpage, stating that it is
“a third-party social media site.” Def.’s Reply at 3 (“In all events, Plaintiffs do not—
and cannot—dispute that neither the Supreme Court nor the First Circuit has
provided any meaningful guidance about the significant and increasingly important
question presented here: whether and to what extent the forum doctrine constrains
government officials’ moderation of ‘comments’ or ‘replies’ on a third-party social
media site”) (italics in reply; underline supplied). The Plaintiffs and the Governor
therefore disagree on a central fact: whether the webpage is the Governor’s official
webpage or a third-party webpage on which the Governor posts comments and
exercises some control.
If the webpage is a third-party social media site, a different legal analysis
results since the decision to include or exclude comments might not be a function of
government but of a third-party operator, and the nature of the forum would be
different. If the webpage is the Governor’s official website, the Governor’s decision to
allow and exclude comments may have constitutional ramifications. To posit one
question, it is unclear whether a social media platform like this website is the same
as a campaign rally by an incumbent, where protesters can “easily interfere with and
even halt the elected official’s speech.” Order on Mot. to Dismiss at 27 (ECF No. 17).
If the website were inundated with comments from political foes of the Governor,
would the Governor be effectively unable to exercise his right to speak? See Johanns
v. Livestock Mktg. Ass’n, 544 U.S. 550, 574-75 (2005) (Souter, J., dissenting)
(discussing the so-called Heckler’s Veto Doctrine).

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Based on the allegations of the Complaint alone, neither this Court nor the
First Circuit can answer such critical facts and, unlike the cases the Governor cited
where the First Circuit accepted interlocutory appeals of the denial of a motion to
dismiss, critical issues in this case require a factual predicate beyond the allegations
in the Complaint. In other words, at its crux, the central issues in this case are
factual, and questions on the appropriate legal analytical framework can only be
resolved once the underlying facts have been clarified. As a result, this matter is not
appropriate for interlocutory appeal.
The Court is sensitive to the Governor’s point about the burdens of discovery
on the Governor of the state of Maine, who is elected to exercise “[t]he supreme
executive power of this State.” ME. CONST. art. V, § 1. “The need for limited access
to high government officials through the discovery process is well established.” Bogan
v. City of Boston, 489 F.3d 417, 423 (1st Cir. 2007). In Bogan, the First Circuit quoted
the Eleventh Circuit that “[h]igh ranking government officials have greater duties
and time constraints than other witnesses.” Id. (quoting In re United States (Kessler),
985 F.2d 510, 512 (11th Cir. 1993)).

The First Circuit added that “without

appropriate limitations, such officials will spend an inordinate amount of time
tending to pending litigation.” Id. This has become an increasing concern over the
last decade where opponents of whichever party is in power have more frequently
resorted to litigation to achieve what they did not at the ballot box. In this case, the
potential constitutional tension between the executive and judicial branches of
government is compounded by issues of federalism.

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The Magistrate Judge recently issued a procedural order, which (among other
things) addresses possible stipulations and topic areas for proposed stipulations; it
seems clear that the Magistrate Judge intends to closely monitor discovery issues and
will act decisively to resolve disputes. Procedural Order (ECF No. 26). Though the
discovery issue raised by the Governor is admittedly a particular concern, it does not
justify the certification of an interlocutory appeal and can be addressed in the
ordinary course.
V.

CONCLUSION
The Court DENIES Defendant’s Motion to Certify August 29, 2018 Order for

Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b) (ECF No. 21) and the Court
DISMISSES as moot Defendant’s Motion to Stay (ECF No. 21).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 12th day of October, 2018

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