Davison v. Plowman

Filing 14

MEMORANDUM OPINION re: Deft's Motion to Dismiss for Lack of Subject Matter Jurisdiction. Signed by District Judge James C. Cacheris on 06/06/16. (pmil, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
BRIAN DAVISON,

)
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Plaintiff,
v.
JAMES PLOWMAN,
Defendant.

M E M O R A N D U M

Case No. 1:16-cv-0180

O P I N I O N

Plaintiff Brian Davison (“Davison”) alleges that the
Commonwealth’s Attorney for Loudoun County, Virginia violated
his First Amendment rights by deleting his comment from a local
government Facebook page and blocking him from posting
additional comments.

Davison seeks injunctive relief undeleting

his comment, restoring his ability to post new comments, and
enjoining Defendant from banning Davison in the future.
Defendant moves to dismiss this case as moot because he has
voluntarily provided the relief Davison seeks.

For the

following reasons, the Court will deny the motion to dismiss.
I.

Background

Defendant James Plowman (“Plowman”) is the
Commonwealth’s Attorney for Loudoun County, Virginia.
¶ 3.)

(Compl.

Part of Plowman’s job is to supervise public relations
1

regarding the Commonwealth’s Attorney Office (the “CA”),
including overseeing a profile page about the CA on the social
networking website Facebook.1

(Compl. ¶¶ 3-4.)

The CA’s

Facebook page falls under the umbrella of Loudoun County
government websites intended to “present matters of public
interest in Loudoun County.”
[Dkt. 1-1].)

(Compl. ¶ 4; Social Media Policy

Loudoun County’s Social Media Policy encourages

public participation on government websites, but imposes some
rules on the scope of that participation.
Policy.)

(Social Media

The Policy notes that online comments are moderated

and permits Loudoun officials to delete comments that are
“clearly off topic,” “contain vulgar language, personal attacks
of any kind, or offensive comments that target or disparage any
ethnic, racial or religious group,” and other prohibited
comments.2
On December 2, 2015, the CA began a media initiative
on its Facebook page called “Understanding the Law.”

1

(Compl.

“Facebook is an online social network where members
develop personalized web profiles to interact and share
information with other members.” Bland v. Roberts, 730 F.3d
368, 385 (4th Cir. 2013).
2
The Policy also reserves the right to delete comments
that “are spam or include links to other sites; are clearly off
topic; advocate illegal activity; promote particular services,
products, or political candidates or organizations; infringe on
copyrights or trademarks; or may tend to compromise the safety
or security of the public or public systems.” (Social Media
Policy.)
2

¶¶ 5, 8; December 2 Post [Dkt. 1-2] at 1.)

The goal of the

initiative was to “increase the public’s understanding of the
criminal justice process” by posting published articles online,
beginning with an article about special prosecutors.
2 Post.)

(December

About two weeks later, Davison posted a comment on the

CA’s Facebook page describing a legal altercation he had with
members of Loudoun County Public Schools (“LCPS”).
¶ 9.)

(Compl.

Davison wrote that LCPS failed to respond to his Freedom

of Information Act request and then LCPS “committed perjury by
claiming under oath” that it did respond.

(December 2 Post.)

Davison wrote that there was “documented proof that perjury
occurred” and asked why Plowman had not assigned a special
prosecutor to investigate.

(Id.)

Davison criticized Plowman’s

decision not to assign a special prosecutor by writing, “I guess
that’s the benefit of being elected.

You really don’t have to

answer to anyone between elections, now do you.”

(Id.)

also included this parting shot:
But hey, I’ve got an idea for you CA.
Why
don’t you delete/censor this post, and then
we can all go before a federal judge in a 42
USC 1983 claim about free speech.
What do
you say?
I’m sure the Virginia Coalition
for Open Government, ACLU of Virginia, FOIA
Resource Center and Virginia Bar might be
interested in this issue too.
(Id. at 2.)

3

Davison

On December 28, 2015—ten days after Davison posted
this comment—the CA did just that; it deleted Davison’s comment
and notified Davison he was “banned or blocked from posting any
further comments on the Social Media Page.”

(Compl. ¶¶ 10-11.)

Davison contacted the CA on multiple occasions in an
effort to restore his deleted comment and his ability to post
new comments.

(Compl. ¶¶ 12-13.)

Davison’s attorney similarly

attempted to convince Plowman to cease censoring Davison.
(Attorney Letter [Dkt. 9-1].)

Despite those efforts, Plowman

continued to block Davison’s ability to post and refused to
restore the deleted comment.

(Compl. ¶ 14.)

On February 22, 2016—almost two months after Plowman
deleted the comment—Davison filed the present Complaint,
alleging that blocking his access and deleting his comment from
a government website violated his First Amendment right to free
speech.

(Compl. ¶ 16.)

The Complaint named Plowman in his

individual capacity and in his official capacity as
Commonwealth’s Attorney for Loudoun County, Virginia.

Davison

alleges that Plowman either personally made the decision to take
the above actions against him or “when made aware of those acts
as head of the office, personally adopted and ratified those
acts by refusing to remediate the constitutional violation.”
(Compl. ¶ 16.)

The Complaint seeks injunctive relief and
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attorney’s fees, but does not seek damages or declaratory
relief.3
About ten weeks after Davison filed this lawsuit—and
about eighteen weeks after the comment was deleted—Plowman
voluntarily restored Davison’s ability to comment on the CA’s
Facebook page and undeleted the December 18, 2015 comment.
(Def.’s Mem. in Supp. [Dkt. 6] at 2.)

Davison has since

liberally exercised his restored access by posting at least
eleven new comments between May 3 and May 25, 2016.
[Dkt. 12].)

(See Ex. 1

Many of Davison’s comments are critical of Plowman

and reference this lawsuit.4

Plowman has not deleted any of

Davison’s May comments.
On May 10, 2016, Plowman moved to dismiss this case as
moot.

3

That motion was fully briefed and argued orally, and is

On June 2, 2016, the Court granted Davison’s motion to
amend his Complaint as to remedies sought. This Memorandum
Opinion does not alter or affect that ruling.
4
For example, Davison’s comments include the following
statements: “Plowman simply believes he is above the law” (Ex. 1
at 1); “When we have corrupt politicians like Plowman
responsible for prosecuting criminals like these, nobody can be
assured of justice in this country” (Ex. 1 at 1-2); “Plowman is
a congenital liar” (Ex. 1 at 4); “There WILL BE a court signed
document with enforceable terms and an admission by Plowman (or
a verdict of the court) that he violated the US Constitution as
a constitutional officer in Virginia” (Ex. 1 at 5); “It is clear
he has no intention of following the law outside being forced to
by the federal courts. That day will come soon!” (Ex. 1 at 9).
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now ripe for disposition.

As described below, the Court will

deny the motion.
II.

Legal Standard

Federal Rule of Civil Procedure 12(b)(1) permits a
party to move to dismiss a complaint for lack of subject matter
jurisdiction.

Fed. R. Civ. P. 12(b)(1).

“[I]n passing on a

motion to dismiss, whether on the ground of lack of jurisdiction
over the subject matter or for failure to state a cause of
action, the allegations of the complaint should be construed
favorably to the pleader.”

Scheuer v. Rhodes, 416 U.S. 232, 236

(1974), abrogated on other grounds by Harlow v. Fitzgerald, 457
U.S. 800 (1982).

Article III of the United States Constitution

limits federal courts’ jurisdiction to “Cases” or
“Controversies.”

U.S. Const., art. III.

A “case becomes moot—

and therefore no longer a ‘Case’ or ‘Controversy’ for purposes
of Article III—when the issues presented are no longer ‘live’ or
the parties lack a legally cognizable interest in the outcome.”
Already, LLC v. Nike, Inc., 133 S. Ct. 721, 727 (2013) (internal
quotation and citation omitted).
It is well-recognized, “however, that a defendant
cannot automatically moot a case simply by ending its unlawful
conduct once sued.”

Id.

If voluntary cessation of that kind

rendered a case moot, “a defendant could engage in unlawful
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conduct, stop when sued to have the case declared moot, then
pick up where he left off, repeating this cycle until he
achieves all his unlawful ends.”

Id.

To prevent that

undesirable outcome, a defendant arguing that his voluntary
cessation renders a case moot bears “the heavy burden of
persua[ding] the court that the challenged conduct cannot
reasonably be expected to start up again.”

Wall v. Wade, 741

F.3d 492, 498 (4th Cir. 2014) (quoting Friends of the Earth,
Inc. v. Laidlaw Env’t Servs., Inc., 528 U.S. 167, 189 (2000)).
Stated another way, “a defendant’s ‘voluntary cessation of a
challenged practice’ moots an action only if ‘subsequent events
made it absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur.’”
Laidlaw, 528 U.S. at 189).

Id. (quoting

This standard is “stringent” and the

defendant’s burden is “formidable.”
III.

Laidlaw, 528 U.S. at 190.

Analysis

Plowman argues that Davison’s claims for injunctive
relief are moot because, after Davison filed this lawsuit,
Plowman restored Davison’s ability to post new comments and
undeleted the December 18, 2015 comment.

The Court finds that

Plowman’s voluntary cessation does not moot this case because
there is a reasonable expectation Plowman will again delete

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Davison’s comment or ban Davison due to that comment.
Accordingly, the Court will deny the motion to dismiss.
Davison seeks two forms of relief: (1) “an Order
enjoining Defendant to restore the deleted comments”; and (2) an
order “restraining Defendant, or any acting for him, from
blocking Plaintiff from participation in the public forum, now
or in the future.”

The Court will consider each form of relief

in turn.
First, the Court finds that Plowman did not moot
Davison’s claim for restoration of the December 18, 2015 comment
by undeleting that comment after this litigation began.

As an

initial matter, it remains factually disputed whether Plowman
has fully restored the December 18, 2015 comment.

At the

hearing on this motion, Davison asserted that Plowman merely
made the comment visible to Facebook visitors who are logged-in
to a Facebook account.

The comment, however, remains “hidden”

to any visitor of the CA’s Facebook page that is not logged in,
such as a passive viewer reaching the page through a search
engine.

Plowman has not presented any rebuttal to rebut this

assertion.

Thus, the issue of the full restoration of the

December 18, 2015 comment “continue[s] to be live and the
parties continue to have a legally cognizable interest in the
outcome.”

Id.
8

Even if Plowman did fully restore the December 18,
2015 comment, that act did not moot Davison’s claim for
injunctive relief.

As described above, Plowman bears the

formidable burden of persuading the Court that he cannot be
reasonably expected to censor the December 18, 2015 comment
again if this case is dismissed.

See Wall, 741 F.3d at 498.

Courts considering whether voluntary cessation moots a claim
often look for a change in official policy or law, or some other
external constraint on the defendant’s action, such as a
collateral court order.

See Am. Freedom Defense Initiative v.

Metro. Transp. Auth., 815 F.3d 105, 110 (2d Cir. 2016); McLean
v. City of Alexandria, 86 F. Supp. 3d 475, 478 (E.D. Va. 2015).
In the absence of such a constraint, “when a defendant retains
the authority and capacity to repeat an alleged harm, a
plaintiff’s claim should not be dismissed as moot.”
Wade, 741 F.3d 492, 497 (4th Cir. 2014).

Wall v.

“Unsubstantiated

assurances” in legal briefing and “bald assertions of a
defendant . . . that it will not resume a challenged policy fail
to satisfy any burden of showing that a claim is moot.”
741 F.3d at 497-98.

Wall,

Furthermore, a defendant’s persistence in

his belief that his challenged actions were legal indicates a
risk the defendant will repeat those actions.

See Knox v. Serv.

Emps. Int’l Union, Local 1000, 132 S. Ct. 2277, 2287 (2012);
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Lyons P’ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 800
(4th Cir. 2001).
Under the standard described above, Plowman does not
carry his heavy burden of demonstrating that this case is moot.
Plowman does not put forward any change in official policy or
other restraint on his ability to again delete Davison’s
December 18, 2015 comment.

Furthermore, Plowman has not

unambiguously disclaimed his ability to delete that comment.

In

his legal memorandum, Plowman noted that “it is far from clear
whether Mr. Davison’s December 18 post complied with the
Policy,” referring to Loudoun’s Social Media Policy.
Reply at 2.)

(Def.’s

From this comment and the absence of any other

assurance from Plowman, the Court has no difficulty concluding
it is not “absolutely clear” the December 18, 2015 comment will
remain uncensored.

Accordingly, injunctive relief remains an

effectual remedy and this claim is not moot.
Second, the Court concludes that the restoration of
Davison’s ability to post on the Facebook page did not moot his
claim for an injunction against being banned.

Plowman provides

only minimal assurances that he will not again ban Plowman for
the December 18, 2015 comment.

At oral argument, Plowman’s

attorney affirmed that Plowman no longer maintains he has the
authority to ban Davison for that comment.
10

This recent change-

of-heart, however, is not buttressed by any change in official
policy or even a signed affidavit from Plowman regarding his
perception of his ability to ban Facebook participants.
Accordingly, Plowman’s statement falls into the category of
“unsubstantiated assurances” and “bald assertions” that do not
moot a claim under the voluntary cessation standard.

Wall, 741

F.3d at 497-98; Lyons P’ship, 243 F.3d at 800.
It is no assurance that Plowman believes the U.S.
Constitution limits his discretion to ban a Facebook
participant.

Plowman does not argue that the scope of the First

Amendment is in any way different now than when Plowman banned
Davison in December 2015.

Instead, the only factor that has

arguably changed since December 2015 is Plowman’s own
interpretation of the First Amendment.5

The Court finds no clear

assurance that his interpretation will not change again if this
case is dismissed.
Lastly, the circumstances giving rise to this lawsuit
have not abated, as Davison continues to post critical comments
on the CA’s Facebook page.

(Ex. 1 [Dkt. 12].)

Even Plowman

notes “he is concerned that the parties will be back before this
Court given Mr. Davison’s recent posts on the Commonwealth

5

In Plowman’s Answer to the Complaint, he denies that
his censorship violated Davison’s First Amendment rights. (See
Answer [Dkt. 7] ¶¶ 15, 16.)
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Attorney’s Facebook page.”

(Def.’s Reply at 10.)

Because there

is some reasonable expectation that Plowman will again ban
Davison for the December 18, 2015 comment, this Court may issue
effectual injunctive relief and this case is not moot.
Before concluding, the Court must note the limited
nature of this proceeding.

As alleged, this Complaint relates

only to Plowman’s censorship of the December 18, 2015 comment.
Accordingly, if Davison prevails on the merits of his claim—
something the Court does not address in this Memorandum Opinion—
injunctive relief could only issue relating to the December 18,
2015 comment and any ban resulting from that comment.

It is

beyond the allegations in this Complaint and this Court’s
jurisdiction to issue injunctive relief as to comments not yet
made or brought before this Court.

See St. John’s United Church

of Christ v. City of Chicago, 502 F.3d 616, 627 (7th Cir. 2007).
IV.

Conclusion

For the foregoing reasons, the Court will deny
Defendant Plowman’s motion to dismiss for lack of subject matter
jurisdiction.
An appropriate order will follow.

June 6, 2016
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
12