NO.

17-2002/2003

In The

United States Court of Appeals For The Fourth Circuit

BRIAN C. DAVISON

Plaintiff - Appellant, v.

PHYLLIS RANDALL, in her individual and official capacity as Chair of the Board of Supervisors for Loudoun County, Virginia, AND LOUDOUN COUNTY BOARD OF SUPERVISORS

Defendants - Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA AT ALEXANDRIA

PLAINTIFF-APPELLANT BRIAN C. DAVISON'S INFORMAL REPLY BRIEF Brian Davison 43724 Stone Fence Ter Leesburg, VA 20176 703.348.7067 [email protected]

Counsel for Plaintiff-Appellant (Pro Se)

TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF THE ISSUES ................................................................. 1 STATEMENT OF THE CASE .................................................................... 1 SUMMARY OF ARGUMENT .................................................................... 3 ARGUMENT ................................................................................................ 5 I.

Response briefs from Randall and the Loudoun BOS do not contradict Davison’s cross-appeal arguments ............................ 5 A.

Randall’s Response ............................................................... 5 1.

Randall acted under color of state law. .......................... 7

2.

Prior restraint, even when constitutional, requires predeprivation due process ................................................ 10

B.

II.

Loudoun BOS Response ..................................................... 12 1.

The Loudoun BOS has taken no action to correct its policy that individual Supervisor Facebook pages are outside the scope of First Amendment protections. ..... 13

2.

The Loudoun BOS acknowledged Loudoun Supervisor Facebook pages could be official. ................................ 14

3.

The Loudoun BOS is the appropriate public body to sue in an official capacity for Counts V and VI. ................ 15

The trial court possessed jurisdiction for due process and official capacity claims ......................................................................... 16 A.

Standing warranted under federal law for declaratory relief. ............................................................................................. 16 i

B.

Standing is independently warranted under Virginia law... 19

C.

Declaratory relief in Counts V-VIII is integral to issues involved in proposed Count IX ........................................... 19

III.

Davison’s proposed Count IX remains a justiciable controversy that warrants declaratory relief prohibiting any government body from using Facebook as a limited public forum. ..................... 20

A.

Count IX is a completely separate issue from Count I. ...... 20

B.

Count IX involves all Facebook pages including the Loudoun Supervisors’ pages and county pages. ................................ 21

CONCLUSION ............................................................................................. 22 REQUEST FOR ORAL ARGUMENT ........................................................ 22 CERTIFICATE OF COMPLIANCE............................................................ 23 CERTIFICATE OF FILING AND SERVICE.................................................. 24

ii

TABLE OF AUTHORITIES CASES

Page

Alexander v United States, 509 U.S. 544 (1993) .......................................................................... 10 Bantum Books, Inc. v Sullivan, 372 U.S. 58 (1963) ............................................................................ 11 Board of Supervisors v Southland Corp., 224 Va. 514 (1982)............................................................................ 19 Carroll v Princess Anne, 393 U.S. 175 (1968) .......................................................................... 11 Centennial Life Ins. Co. v Poston, 88 F.3d 255 (4th Cir 1996) ................................................................ 16 Chase v City of Portsmouth, 428 F. Supp. 487 (2006) ...................................................................... 6 Cotton v District of Columbia, 421 F. Supp. 2d 83 (D.D.C. 2006) ...................................................... 6 Daniels v Williams, 451 U.S. 527 (1981) .......................................................................... 12 Elrod v Burns, 427 U.S. 347 (1976) .......................................................................... 11 Ex parte Virginia, 100 U.S. 339 (1879) .......................................................................... 10 Garcia v Montgomery Cnty, 145 F. Supp. 3d 492 (2015) .................................................... 16, 17, 20 Grandstaff v Borger, 767 F.2d 161 (5th Cir 1985) .............................................................. 14 iii

Kentucky v Graham, 473 U.S. 159 (1985) ............................................................................ 6 McRorie v Shimoda, 1986 U.S. App. LEXIS 27475 .......................................................... 14 Monroe v Pape, 365 U.S. 167 (1961) ............................................................................ 9 Near v Minnesota, 283 U.S. 697 (1931) .......................................................................... 11 Nebraska Press Ass’n v Stuart, 427 U.S. 539 (1976) ..................................................................... 10-11 New York Times v United States, 403 U.S. 713 (1971) .......................................................................... 11 Revene v Charles County Comm’rs, 882 F. 2d 870 (4th Cir. 1989) .............................................................. 9 Rossignol v Voorhaar, 316 F. 3d 516 (2003) ......................................................................9, 11 Screws v United States, 325 U.S. 91 (1945) .............................................................................. 9 Steffel v Thompson, 415 U.S. 452 (1974) .......................................................................... 16 United Pub. Workers of Am. v Mitchell, 330 U.S. 75 (1947) ............................................................................ 18 Wilton v Seven Falls Co., 515 U.S. 277 (1995) .......................................................................... 17

iv

CONSTITUTIONAL PROVISIONS U.S. Constitutional Amendment I .......................................................... passim U.S. Constitutional Amendment XIV .................................................... passim STATUTES 28 U.S.C. § 1983.................................................................................... 1, 9, 12 TRIAL DOCUMENTS Transcript [Dk. 128] (“Tr.”) ................................................................... 12, 14 TRIAL COURT OPINIONS/DECISIONS Memorandum Opinion, May 10, 2017 (Dkt 116) .....................................3, 16 Memorandum of Decision, July 25, 2017 (Dkt 132) ............................ 3, 8, 15

v

STATEMENT OF THE ISSUES 1. Whether the declaratory judgment on the First Amendment speech claims in Counts V and VII should have been issued against Defendant Randall in her official capacity, and thus the Loudoun BOS? 2. Whether a declaratory judgment on the procedural Due Process claims in Counts VI and VIII should have been issued against Defendant Randall in her personal and official capacities, and thus against the Loudoun BOS? 3. Whether Davison’s motion to amend to add Count IX regarding First Amendment claims on the Loudoun BOS Facebook page should have been denied? STATEMENT OF THE CASE Davison incorporates his statement of the case from his cross-appeal opening brief and the trial court’s July 25, 2017 opinion. To recap, in July 2017, Davison’s comments were deleted from the “Loudoun County Government” (LCG) Facebook page shortly after being posted. In litigating the cause of the comment deletions, Defendants Randall and the Loudoun Board of Supervisors (BOS) argued neither Loudoun County Facebook pages nor Loudoun Supervisor pages represented government forums. In their first motion to dismiss, Defendants independently raised the issue of Randall banning Davison from her “Chair Phyllis J. Randall” (CPJR) Facebook page in February 2016 and argued Randall was free to continue discriminating on the CPJR page for any reason whatsoever.1 Davison subsequently 1

At the time, Davison also maintained § 1983 lawsuits against two other Loudoun County defendants who had deleted comments and/or banned him from his page. In Davison v Plowman, the same trial court found Loudoun County

1

added First and Fourteenth Amendment claims given the past violation by Randall on her CPJR Facebook page and the high likelihood that his free speech and due process rights would again be infringed. In responding to Davison’s subpoena, Facebook acknowledged that its internal algorithms had caused Davison’s comments to be deleted from the LCG Facebook page. Facebook also indicated that the algorithms had been modified so that such deletions would not occur in the future. As a result, Davison dropped Counts I and II in responding to Defendants’ motion for summary judgment in April 2017. However, during his investigation prior to discovery, Davison learned that he was barred from commenting in some threaded conversations on both Loudoun County and individual Loudoun Supervisor Facebook pages. 2 Davison moved the court three (3) separate times from September 2016 to April 2017 to add a free speech claim described in this appeal as proposed Count IX. After all three motions were denied, Davison appealed the magistrate judge’s denial of leave to amend to the trial court. In its memorandum opinion of May 10, 2017, the trial court denied

Commonwealth Attorney Plowman was protected by sovereign immunity on Davison’s official capacity claims and had effectively mooted the case by adhering to an updated Loudoun County social media policy, revised in November 2016 during this litigation, with speech and due process protections. To this day, Defendants refuse to apply the new Loudoun County social media policy to Loudoun Supervisor Facebook pages. Davison remains banned from multiple Loudoun County School Board member Facebook pages. Davison v Rose, a lawsuit involving free speech claims on Facebook against Loudoun school board members, is under appeal to the Fourth Circuit. 2 The restriction on Davison’s speech continues to this day on both Loudoun County Facebook pages and Loudoun Supervisor Facebook pages including the CPJR Facebook page. In various threads on these pages, Davison can neither view nor participate in the discussions.

2

Davison leave to amend to add his proposed Count IX.3 Dkt. 116. In its July 26, 2017, decision, the trial court issued a declaratory judgment in Davison’s favor on the free speech claims against Randall in her personal capacity (Counts V and VII) but denied Davison’s due process claims (Counts VI and VIII) and his official capacity free speech claim (Counts V and VII). Dkt. 132. Defendant Randall appealed the declaratory judgment against her on the individual capacity free speech claim. Davison cross-appealed the trial court’s denial of judgment on the due process claims, the official capacity free speech claim, and its denial of leave to amend to add Davison’s proposed Count IX.

SUMMARY OF ARGUMENT Defendant Phyllis Randall continues to operate the CPJR Facebook page shrouded in the trappings of her position as chair of the Loudoun County BOS. Defendants continue to assert that Randall, or any Loudoun Supervisor, may censor citizen speech on such Facebook pages for any reason whatsoever, including viewpoint discrimination. Defendants have not disputed that Loudoun Supervisors are authorized to operate official government Facebook pages but rest much of their

3

The trial court ruled Davison’s proposed Count IX was futile, a legal conclusion. The trial court also denied Davison leave to amend given the late stage of the proceedings but failed to explain why the added Count would prejudice Defendants given there were no disputed facts and Davison had raised the issue as far back as September 2016.

3

entire argument on the fact that a Loudoun Public Information Office (PIO) employee did not actually create the CPJR page. Given that nearly all Loudoun Supervisors operate a similar Facebook page and the BOS continues to assert that none are subject to First or Fourteenth Amendment protections, the Loudoun BOS should be equally subject to a declaratory judgment in an official capacity on Davison’s free speech claims, Counts V and VII. Any prior restraint of speech by a government actor is presumed to be unconstitutional and results in an “irreparable injury” regardless of the duration of the restraint. Pre-deprivation notice and a hearing is generally required before any liberty interest is infringed but particularly when it involves speech since any postdeprivation remedy is “insufficient”. Given (i) the Loudoun County’s revised social media policy requires due process prior to any censorship, (ii) its “Use of Social Media” policy warns officials and employees against using personal social media accounts to discuss official business, and (iii) the fact that nearly every Loudoun Supervisor maintains a Supervisor Facebook page, Randall’s unconstitutional restraint of speech on the CPJR page was clearly foreseeable. Defendants are required and capable of practically providing due process before infringing on citizens’ free speech rights. Defendants should be subject to a declaratory judgment, in both an individual and official capacity, on Davison’s due process claims, Counts 4

VI and VIII. When a Facebook user blocks Davison as a result of viewpoint discrimination, Davison can neither view nor participate in the blocking user’s threaded discussions regardless of the Facebook page on which the discussion occurs. As a result, to this day, Davison may not participate in some threaded discussions on both Loudoun County Facebook pages and individual Loudoun Supervisor Facebook pages including Supervisor Koran Saines Facebook page and the CPJR Facebook page. It is unconstitutional for Defendants to operate limited public forums opened for general public comment in which they acquiesce to viewpoint discrimination even by private actors. Davison’s proposed Count IX seeking declaratory and injunctive relief against Defendants operating Facebook pages should be added to his complaint and litigated in the trial court.

ARGUMENT I. Response briefs from Randall and the Loudoun BOS do not contradict Davison’s cross-appeal arguments. A. Randall Response Randall understands that the official capacity claims addressed in Davison’s cross-appeal are directed at the Loudoun BOS which is now represented by separate 5

counsel. (See Randall’s Response to Davison Cross-Appeal at 1) Randall notes that claims against individuals in an official capacity are merely claims against the public body. (Randall’s Response to Davison Cross-Appeal at 5 citing Kentucky v Graham, 473 U.S. 159, 167 n. 14 (1985)) Randall then suggests that Davison’s claims against Randall in her official capacity in Counts V and VII are “duplicative and redundant” and subject to dismissal.4 (Randall’s Response to Davison Cross-Appeal at 5-6 citing Cotton v District of Columbia, 421 F. Supp. 2d 83, 86 (D.D.C. 2006)) However, Davison did not name the Loudoun BOS in Counts V-VIII separate and apart from Randall in her official capacity. 5 Courts have ruled that it is often appropriate to name officials in their official capacity so that they be held accountable, or conversely, can seek vindication. Chase v City of Portsmouth, 428 F. Supp. 487, 489-90 (2006) Now that Randall has separate counsel from the Loudoun BOS, Randall may offer distinct arguments but ultimately it is the Loudoun BOS who must defend against the official capacity claims on this cross-appeal. In Counts V-VIII, duplicative claims or parties simply do not exist.

4 An official in their official capacity is not in privity with the same official in their personal capacity. Thus, the personal capacity claims against Randall are completely independent, with respect to the party involved, of the official capacity claims against Randall. 5 Randall may be confusing the claim against the Loudoun BOS in Counts I and II involving deleted comments on the “Loudoun County Government” Facebook page with the claim against Randall in her official capacity in Counts VVIII involving the “Chair Phyllis J. Randall” Facebook page. The Loudoun BOS was not named in Counts V-VII, only Randall in her official capacity. While the official capacity claim against Randall effectively functions as a claim against the Loudoun BOS for relief purposes, there are no duplicative claims in Counts V-VIII.

6

1. Randall acted under color of state law. The only remaining issue in this cross-appeal directly related to Randall’s individual capacity is the due process claim in Counts VI and VIII. Randall’s response brief doesn’t appear to substantively address the due process arguments Davison raised. Rather, Randall reiterates the arguments raised in her own appeal that (i) Davison does not possess standing to seek a declaratory judgment 6 and (ii) the CPJR page cannot be deemed an official page under color of state law, thus no constitutional violation could have occurred. Assuming that This Court rejects both of those arguments, Randall also references the trial court’s basis for dismissing Davison’s due process claims without offering any further analysis of her own. Randall’s assertion that the CPJR page cannot be official under color of state law is undermined by her own admission. After initially asserting that even countycontrolled Facebook pages were private, Defendants eventually acknowledged during the course of the litigation that county-controlled Facebook pages were limited public forums. (See Davison’s Resposne Brief to Randall’s Appeal at p13, footnote 7; Dkt. 97, p15) In their motion for summary judgment, Defendants also acknowledged that “official” Loudoun Supervisor Facebook pages could exist and be administered by Loudoun Supervisors. (Davison’s Opening Cross-Appeal Brief

6

The standing argument is refuted in Section II of this Reply brief.

7

at 22; Dkt. 107-1, p2(c), p4(A,B); Dkt. 107-2, p2(A)(2)) Thus, Defendants are apparently seeking to claim that the CPJR Facebook page is not official simply because Loudoun Public Information Office (PIO) staff didn’t physically create the CPJR Facebook page. Yet, other Loudoun officers can maintain official Loudoun Facebook pages without any assistance from the PIO office.7 Randall simply ignores these admissions in her response brief and offers no argument as to why a page created by her chief-of-staff is not an official page. Likewise, Randall ignores the fact that it is illegal for Loudoun Supervisors to use government assets, including county-paid staff, to support a “personal” endeavor. (See Davison’s Opening Cross-Appeal Brief at 14-15) The trial court noted as a finding of fact that Randall used government staff in administering her CPJR page. Dkt. 132, p3-5, Findings of Fact #6, 10, 11, 15; p19-20. Davison also showed that the links at the bottom of Randall’s admittedly official newsletters which point to the CPJR Facebook page must have been created by county staff as well. Dkt. 132, p20 n.2. For Randall’s CPJR page to be personal, she would have to admit violating the law in using county employees for personal purposes. The CPJR page was shrouded in the trappings of Randall’s position as chair of the

7

The Loudoun Government “Use of Social Media” policy does not require any social media creator to get the assistance of the PIO staff to create an official page. The policy merely notes that department heads or constitutional officers may request PIO assistance. Dkt. 107-1, p2(c), p4(A,B); Dkt. 107-2, p2(A)(2).

8

Loudoun BOS, was administered by county-paid employees, and constituted an official governmental communication forum under state law. Even if it were true that Loudoun Supervisors were not authorized to use government resources to communicate with their constituents as Randall did on her CPJR Facebook page, the courts have ruled that it is the nature of the act and not whether the action was specifically authorized by state law that is controlling. Revene v Charles County Comm’rs, 882 F. 2d 870, 872-73 (4th Cir. 1989) citing Monroe v Pape, 365 U.S. 167, 171-87 (1961).

As the Supreme Court noted in

Screws v United States, “[i]f … the statute was designed to embrace only action which the State in fact authorized, the words ‘under color of any law’ were hardly apt words to express the idea.” 325 U.S. 91, 111 (1945) Just as This Court in Rossignol noted that “[s]heriffs who removed their uniforms and acted as members of the Klan were not immune from 1983”, neither Randall nor the Loudoun BOS should be immune from constitutional protections simply because they conveniently assert they acted in their private capacities. Rossignol v Voorhaar, 316 F. 3d 516, 527 (2003). See also Screws, 325 U.S. at 110 (‘it was immaterial that the state officer exceeded the limits of his authority. ". . . as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning. Then the State has clothed one of its 9

agents with power to annul or to evade it.’ quoting Ex parte Virginia, 100 U.S. 339, 347 (1879)) Randall clothed her CPJR Facebook page in the symbols of her office and thus acted under the color of state law. 2. Prior restraint, even when constitutional, requires pre-deprivation due process. In responding to the due process claims, Randall merely repeats the arguments of the trial court that Davison failed to bear his burden in demonstrating postdeprivation due process was unconstitutional. (See Randall’s Response Brief at 79) The courts have spoken loud and clear about the unconstitutionality of prior restraint. 8 The Supreme Court noted that prior restraint is the “most serious” and “least tolerable” infringement on the First Amendment precisely because the government cannot know what the speaker will say. Nebraska Press Ass’n v Stuart, 427 U.S. 539, 559 (1976). In contrast to a valid criminal statute against certain unlawful speech where the speaker has protections of appellate review that could still “chill” speech, prior restraint completely “freezes” speech at least for a period of time. Id. at 559. The Supreme Court also noted that the damage is “particularly great” when the restraint bars the “communication of news and commentary on

8

Randall implies her ban does not equate to a prior restraint. (See Randall Response Brief to Davison Cross-Appeal at 8 citing Alexander v United States, 509 U.S. 544, 550 (1993)) However, the issue in Alexander was whether the forfeiture of assets was equivalent to a prior restraint. No such forfeiture has occurred here; therefore, Randall's citation of Alexander is completely irrelevant to the legal issues on appeal. Randall’s ban prevented Davison from speaking on her CPJR Facebook page, a textbook example of prior restraint.

10

current events", precisely the speech in which Davison was engaged. Id. at 559. Courts have ruled that even “malicious, scandalous and defamatory” speech cannot be restricted beforehand. Id. at 556 citing Near v Minnesota, 283 U.S. 697, 703 (1931). The case law is clear. Courts have afforded “special protection” against any prior restraint of speech. Id. at 556. There is a “heavy presumption” against the constitutional validity of any prior restraint and the government bears the burden to justify such restraint. Id. at 558 citing Carroll v Princess Anne, 393 U.S. 175, 181 (1968) and Bantum Books, Inc. v Sullivan, 372 U.S. 58, 70 (1963). Even when the restraint applies to one of the exceptions to prior restraint such as national security, the burden on the government to demonstrate constitutionality is not reduced because the restraint is temporary in nature. Id. at 558-59 citing New York Times v United States, 403 U.S. 713 (1971). Further, while monetary remedies may be sufficient to cure erroneous deprivations of property, all such monetary relief is insufficient as a remedy for prior restraint. Rossignol v Voorhaar, 316 F. 3d 516, 522 (2003) citing Elrod v Burns, 427 U.S. 347, 373-74 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”) Defendants have the burden to demonstrate why their prior restraint is not 11

unconstitutional. Likewise, infringement of liberty interests requires due process prior to the deprivation.9 (See Davison’s Opening Cross-Appeal Brief at 18-19) Unlike infringement on property interests, which may be cured with post-deprivation compensation, infringement on speech is irreparable and thus incurable.

The

Defendants clearly understood how to provide pre-deprivation due process as seen by its revised social media policy. 10 (Defendant’s Exhibit 3B of their Motion for Summary Judgment, Dkt. 97-14) Both the Defendants and the trial court have failed to demonstrate why one of the narrow exceptions to prior due process for deprivation of liberty interests should apply. 11 (See Davison’s Opening Cross-Appeal brief at 18-19) This Court should grant Davison’s request for a declaratory judgment on the due process claims in Counts VI and VIII.

9

Contrary to both the trial court’s and Defendants’ assertions, Davison was quite clear in the relief he was seeking on the due process claims. In his response to Defendants motion for summary judgment, Davison requested the court enjoin the parties to provide pre-deprivation due process. Dkt. 107, p13-14. Given that the updated Loudoun County social media policy requires such due process before comments can be censored, Defendants are quite capable of complying with Davison’s requested relief on Loudoun Supervisor pages. 10 Defendants objected to and the trial court sustained the objection to Davison introducing Loudoun’s current revised social media policy during trial. Tr. 49-50. Neither the trial court nor the Defendants can credibly claim predeprivation process is not possible when Loudoun County has created just such a process for some of its Facebook pages. 11 Randall notes that Parratt v Taylor was partially overruled by Daniels v Williams to require a § 1983 litigant to appropriately assert a constitutional violation as opposed to mere negligence. 451 U.S. 527 (1981) It is unclear why Randall even addressed this issue other than to critique Davison's legal writing technique as a pro se litigant. Parratt could only help Randall since unforeseen, negligent, unconstitutional acts by individual state actors are an exception to prior due process. However, Davison argued that exceptions such as Parratt were not applicable precisely because Randall’s act was intentional and easily foreseen. Randall even fails to cite any relevant case law that suggest predeprivation due process is not required or that prior restraint does not bear the heavy burden of unconstitutionality. Randall appears to base her whole defense on the trial court's opinion without any independent discussion.

12

B. Loudoun BOS Response The Loudoun BOS response brief mainly repeats the arguments proffered by Randall in her Opening Appeal Brief with regard to the official capacity free speech claims against Randall in Counts V and VII. (See Loudoun BOS Response Brief at 5-9.) Davison incorporates his refutation of these arguments in his response and addresses specific issues below. (See Davison Response Brief at 3-24.) 1. The Loudoun BOS has taken no action to correct its policy that individual Supervisor Facebook pages are outside the scope of First Amendment protections. The trial court refused to allow Davison to subpoena or compel interrogatory answers from individual Loudoun Supervisors. Dkt. 116, p27; Dkt. 73; 73-1 through 73-8; 73-9; 73-10. Defendant Loudoun BOS argues in its response brief that the use of such individual Supervisor pages was not foreseeable. (See Loudoun BOS Response Brief at 8.) Yet, Davison included exhibits in his pleadings that demonstrated the majority of Loudoun Supervisors maintained Facebook pages nearly identical to the “CPJR” Facebook page. (See Davison’s Opening CrossAppeal Brief at 24; Dkt. 70-4; Dkt. 70-8; Dkt. 107-9) There is no evidence whatsoever to conclude that any of the Loudoun Supervisors were unaware of these Facebook pages. A public body cannot avoid accountability by acquiescing to an ongoing custom but avoiding discussion of an official policy, particularly when its governing members are actively engaged in that very custom. 13

During its motion of summary judgment, the Loudoun BOS acknowledged that its social media policy had been revised. 12 Yet throughout these proceedings, the Loudoun BOS has maintained that all Loudoun Supervisor Facebook pages are not subject to the original or revised social media policy. Failure to correct its policy that the Supervisor pages are outside First Amendment protections is sufficient to demonstrate liability by the Loudoun BOS. McRorie v Shimoda, 1986 U.S. App. LEXIS 27475 at 11 (citing Grandstaff v Borger, 767 F.2d 161, 171 (5th Cir 1985)) Certainly, the Loudoun BOS should be subject to a declaratory judgment that will control its future policies. The Loudoun BOS argues that it could not “possibly foresee” that the trial court would find a First Amendment violation. The Loudoun BOS appears to erroneously believe qualified immunity is available to official capacity defendants. Qualified immunity protects officials from individual liability if they could not have known their actions were unconstitutional. Such a defense is unavailable to a public body regardless if the law was not settled at the time. 2. The Loudoun BOS acknowledged Loudoun Supervisor Facebook pages could be official. As discussed above, the Loudoun BOS acknowledged that its Supervisors

12

Randall inexplicably claimed she was aware of all pleadings but then denied knowledge of the revised social media policy while under oath. Davison’s Opening Cross-Appeal Brief at 13; Dkt. 107-9, p2; Tr. 80.

14

could maintain official Facebook pages under state law. (See Infra. I(A)(1) at 7-9) Yet, the Loudoun BOS failed to discuss that acknowledgement in any way in its response brief. The trial court issued a finding of fact that Randall used her staff to maintain the CPJR Facebook page which is illegal under Loudoun County Ordinance 253.04. Dkt. 132, p3-5, Findings of Fact #6, 10, 11, 15; p19-20. Once again, the Loudoun BOS failed to discuss the trial court’s finding or its own prohibition against using county employees for personal purposes in its response brief. Based on its own acknowledgement and the trial court’s findings, it is clear that the CPJR Facebook page, just like the “Supervisor” Facebook pages of the majority of the Loudoun BOS, are official communication for a under state law. 3. The Loudoun BOS is the appropriate public body to sue in an official capacity for Counts V and VI. The trial court ruled that the CPJR Facebook page maintained a sufficiently close nexus with Randall in her official county position that it operated as an unauthorized, official page subject to First Amendment protections. 13 Davison argued in his opening brief that public bodies were appropriate parties to lawsuits seeking injunctive or declaratory relief when the body maintained influence or control over other county officials even if such officials were not under the direct supervision of the public body. (See Davison’s Opening Cross-Appeal Brief at 14-

13

The trial court noted that Randall used the CPJR page as a “tool of governance”. Dkt. 132 at 18.

15

17) It is not disputed that the Loudoun BOS maintains control over the staff budgets of its members. The Loudoun BOS failed to respond to this argument in any way. 14 II. The trial court possessed jurisdiction for due process and official capacity claims. In her response brief, Defendant Randall reiterates her argument against standing first provided in Randall’s Opening Appeal brief. (See Randall’s Response to Davison Cross-Appeal at 1) Defendant Loudoun BOS also incorporates Randall’s standing argument by reference. (See Loudoun BOS Response to Davison CrossAppeal at 3) Davison incorporates by reference his counter arguments. (See Davison Response Brief at 25-34.) Further explanation is provided below. A. Standing warranted under federal law for declaratory relief. The Declaratory Judgment Act was designed to provide a “milder” form of relief than a full injunction. Steffel v Thompson, 415 U.S. 452, 467, 471, 481 (1974). In Garcia v Montgomery Cnty,15 the court noted that declaratory judgments were discretionary tools appropriate when the “judgment will serve a useful purpose in clarifying and settling the legal relations” and prudent in light of “considerations of practicality”. 145 F. Supp. 3d 492, 512 (2015) quoting Centennial Life Ins. Co. v

14

Davison contends that the Loudoun BOS has control over its members. The BOS can investigate any county official, can restrict funding, and can pass ordinances and resolutions concerning Supervisor conduct. However, even if This Court deems such action to not be “control”, the BOS can certainly influence its member behavior via funding restrictions and investigations. 15 Referenced by the trial court in its July 25, 2017, memorandum of decision. Dkt. 132, p23.

16

Poston, 88 F.3d 255, 256 (4th Cir 1996) and Wilton v Seven Falls Co., 515 U.S. 277, 282 (1995). The Garcia court had already ruled that the Defendants were entitled to qualified immunity on the damage claims but noted a declaratory judgement could be useful in resolving Garcia’s injunction request via another claim. Id. at 511, 512. Davison has asserted (i) the BOS delegated final decision-making authority for content on Supervisor Facebook pages to each Supervisor and (ii) has shown indifference to the past and potential future constitutional infringements against Davison by not clarifying its revised social media policy applies to Supervisor Facebook pages. Either is sufficient to incur official capacity liability against the BOS. A retrospective declaratory judgment would assign accountability for the delegation of such final decision-making authority without applying the appropriate contours of a constitutional social media policy. 16 Davison did not seek monetary damages against the BOS. Davison did seek declaratory and injunctive relief against the BOS to protect his right of speech on Supervisor Facebook pages when opened as a governmental forum. Randall cites

16 Randall argues Davison suggested only prospective relief when he stated the "[c]ourt need not assign liability for Randall's past actions"; however, such statements were made in Davison’s cross-appeal in the context of the official capacity claims against the BOS. Declaratory relief provided by the trial court against Randall in her personal capacity acts both retrospectively and prospectively given it cannot be denied that Randall was aware of and implemented prior restraint based on Davison's actual viewpoint. Further, Davison’s request in “pray[ing] that the Court issue a declaratory judgment finding Randall’s blocking future Plaintiff comments … violated the Plaintiff’s First Amendment free speech rights” is consistent with both a retrospective and prospective declaratory judgment. A Facebook ban is the equivalent to blocking “future” comments – prior restraint – and had already occurred (“violated”) when Davison moved the trial court for leave to add Counts V-VIII.

17

United Pub. Workers of Am. v Mitchell in arguing Davison has no "concrete legal issue" to adjudicate. 330 U.S. 75, 89 (1947) Yet, Randall’s reference to Mitchell relates only to the federal employees whose speech had never been infringed by the Hatch Act. The Supreme Court ruled that without definite rights on the one side and definite prejudicial interference on the other, no federal court properly adjudicate the constitutionality of a law or policy as applied. However, the Supreme Court concurrently ruled in Mitchell that federal employees whose speech had been cited as a violation of the Hatch Act had standing for a declaratory judgment since the definite facts allowed such an adjudication. 17 Id. at 91-93. Here, the trial court had definite facts to adjudicate. Randall had exercised prior restraint, afforded Davison no notice or hearing, and both Randall and the BOS continued to assert their right to engage in the very same conduct if Davison again criticizes Loudoun officials.18 Davison acknowledges that Randall possesses the right to remove speech on her Supervisor Facebook page that is not legally protected. (E.g. speech that encourages violent unrest or is truly defamatory). However, Randall must provide Davison due process, notice and a right to appeal. 19 Further,

17

The Supreme Court ultimately found the Hatch Act to be constitutional in Mitchell; however, the final ruling does not affect the standing issue. 18 Randall has never indicated she would not remove comments that dealt with officials' spouses and associated conflicts of interest. 19 Davison does not take a position in this brief as to whether notice and a hearing are required prior to removing unprotected comments, such as defamatory speech or the encouragement of violence, on a governmental forum.

18

any prior restraint, even as a result of such unprotected speech, would certainly require notice and a hearing prior to the enactment of such restraint. Given Randall and the BOS' assertions that no notice or hearing is required regardless of the nature of the speech, it is even more likely that Davison's due process rights will be violated by such future censorship. B. Standing is independently warranted under Virginia law. Virginia law states that its declaratory judgment statutes are to be “liberally interpreted and administered with a view to making the courts more serviceable to the people”. Virginia Code § 8.01-191. Furthermore, declaratory judgments under Virginia law are remedial and do not require a party “so to invade the rights asserted by the other as to entitle him to maintain an ordinary action”. Id.; Board of Supervisors v Southland Corp., 224 Va. 514, 521 (1982). Given Davison sought a declaratory judgment under the Virginia law in Counts VI and VIII in addition to his federal claims in Counts V and VII, the trial court also has authority to issue its declaratory judgment on the issues raised in this cross appeal under Virginia law. C. Declaratory relief in Counts V-VIII is integral to issues involved in proposed Count IX. In his proposed Count IX, Davison seeks declaratory and injunctive relief against the Loudoun BOS for operating any Facebook page in an official capacity. This includes the CPJR Facebook page as well the Loudoun County and individual 19

Loudoun Supervisor Facebook pages. In order for the trial court to determine whether such relief is warranted against the individual Supervisor Facebook pages, it must necessarily determine the nature of those pages. It must also determine whether prior restraint as a result of viewpoint discrimination is constitutional. Those determinations are exactly what the trial court provided in its Memorandum of Decision on July 25, 2017. As noted in Garcia, such declaratory judgments are warranted when they prove useful in resolving other claims against the same or similar parties. Garcia, 145 F. Supp at 511-512. The viability of Count IX provides further justification for the trial court’s issuance of a declaratory judgment. III. Davison’s proposed Count IX remains a justiciable controversy that warrants declaratory relief prohibiting any government body from using Facebook as a limited public forum. A. Count IX is a completely separate issue from Count I. In arguing that the trial court properly dismissed Davison’s proposed Count IX, Defendant Loudoun BOS asserts that the “third party action complained of by Mr. Davison had already been resolved”. This is simply erroneous. Counts I and II involved the deletion of comments by Davison on the Loudoun County Government Facebook page. Facebook acknowledged that its own algorithms led to those deletions, most likely as a result of antagonistic Facebook users “reporting” Davison’s comments.

However, proposed Count IX deals with a completely 20

separate issue. Within both Loudoun County government Facebook pages and individual Loudoun Supervisor pages, Davison is restricted from participating in some threaded discussions when certain Facebook users initiate those discussions within the Loudoun Facebook pages.20 Once the trial court rules that the Facebook pages are governmental forums, viewpoint discrimination is unconstitutional.

Defendant

Loudoun BOS simply doesn’t address Davison’s arguments in his cross-appeal. (See Davison’s Opening Cross-Appeal Brief at 30-37) B. Count IX involves all Facebook pages including the Loudoun Supervisors’ pages and county pages. Davison’s proposed Count IX involved all Facebook pages controlled by Loudoun County and the Facebook pages purportedly representing the Loudoun Supervisors in a “Supervisor” capacity. Davison remains unable to comment on various threads on each of these pages even today. There can be no dispute that Davison possesses standing to litigate these claims as long as there is a legal basis for his First and Fourteenth Amendment claims.

20

The best example of how this works in Davison’s Exhibit 32 in his proposed Second Amended Complaint. Dkt. 708 (See Davison’s Opening Cross-Appeal Brief at 31, n13). Had Davison blocked any other Facebook user, that blocked user could not see nor comment in the discussion hosted on Supervisor Matt Letourneau’s Facebook page, one nearly identical in purpose as the CPJR page. Davison provided actual examples from both the Loudoun County Facebook pages and individual Supervisor Facebook pages where he was blocked from participating in certain discussion threads.

21

CONCLUSION For the foregoing reasons, Appellant Davison respectfully requests that This Court (1) reverse the trial court’s dismissal and issue a declaratory judgment on the Fourteenth Amendment procedural due process Counts VI and VIII against Defendant Randall in her individual and official capacities; (2) extend the declaratory judgment on the First Amendment free speech Counts V and VII to cover Defendant Randall in her official capacity, and thus the Loudoun BOS, and (3) reverse the trial court’s denial of Davison’s motion to add Davison’s proposed First Amendment free speech Count IX via amendment. Davison further requests This Court remand the case for further proceedings. REQUEST FOR ORAL ARGUMENT Appellant Davison requests oral argument.21 Respectfully Submitted,

_________/s/___________ Brian C. Davison

21

Randall's request for a formal briefing and oral argument only on her appeal, but not on Davison's cross-appeal, is self-evidently gratuitous. Davison believes oral arguments are warranted for both appeals but given all parties were provided adequate space to present their issues via the informal briefing process, formal briefings are neither necessary nor helpful.

22

CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P. 28.1(e)(2) or 32(a)(7)(B)(i) because: [ X ] this brief contains [5648] words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f), or

[ ] this brief uses a monospaced typeface and contains [state the number of] lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 32(f). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: [ X ] this brief has been prepared in a proportionally spaced typeface using [Microsoft Word 2016] in [14pt Times New Roman]; Or [ ] this brief has been prepared in a monospaced typeface using [state name and version of word processing program] with [state number of characters per inch and name of type style].

Date: ____27 November 2017___

__________/s/__________ Brian C Davison

23

CERTIFICATE OF FILING AND SERVICE Pursuant to Fed. R. App. P. 25(c), I certify that the foregoing was electronically filed with the Clerk of Court on November 3, 2017 using the CM/ECF system, which will send a notification to the attorneys of record in this matter who are registered with the Court’s CM/ECF system.

Date: ____27 November 2017___

__________/s/___________ Brian C Davison

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