Case 1:22-cv-04548-VMC Document 9-1 Filed 01/30/23 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

PATTY DURAND, )
)
Plaintiff, )
v. ) Civil Action No.:
) 1:22-cv-04548-VMC
COMMISSIONER TIM G. ECHOLS, )
in his individual and official capacities )
as a Commissioner of the Georgia )
Public Service Commission, )
)
Defendant. )
___________________________________ )

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S

MOTION TO DISMISS PLAINTIFF’S COMPLAINT

Defendant Tim G. Echols, by and through the undersigned counsel, files this

brief in support of his motion to dismiss, respectfully showing this Court the

following:

I. STATEMENT OF FACTS

For the purpose of this motion, the allegations in the complaint are accepted

as true. Those allegations show the following:

Defendant Tim G. Echols is a Commissioner for the Georgia Public Service

Commission (“PSC”). Doc. 1 at ¶ 8. He operates a Twitter account (@timechols)

that has approximately 13,300 “followers.” Id. at ¶¶ 8, 10. He also operates a

Facebook account (“Tim G. Echols (Commissioner Tim Echols”)) that has

approximately 4,994 “followers.” Id. at ¶¶ 41, 43. Both of Echols’ accounts

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contain a mixture of personal and job-related content. For example, in 2022,

Echols posted or tweeted (or, in some cases, re-tweeted) about: his daughter’s

wedding, SEC football, links to job-related interviews and op-eds, historical

information about several Georgia counties, his attendance at Dragoncon with one

of his daughters, articles about nuclear energy and clean energy, photos from his

various job-related speaking engagements, pictures of his grandchildren, and

remembrances of 9/11. See https://twitter.com/timechols?s;

https://www.facebook.com/timgechols.1

In July 2021, Plaintiff Patty Durand decided to run against Echols for his

seat on the PSC. Id. at ¶ 1. The election was scheduled to take place in November

2022 but was cancelled as the result of pending Voting Rights Act litigation. Id.

In 2021 and 2022, Durand interacted with Echols through Twitter and Facebook on

multiple occasions “by viewing tweets and replying to [his] Twitter posts, and

‘tagging’ or ‘tweeting at’ [him] by including a link to his account in her own

Twitter posts.” Id. at ¶ 22. For example:

 On September 8, 2021, Echols tweeted: “Georgia’s electric rates are 15%

below the national average. My job is to keep cost and reliability front and

center. See more here,” and appended a campaign video. Durand replied:

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This Court may consider all of the content on Echols’ Twitter and Facebook
accounts without converting this motion to a motion for summary judgment
because Durand included links to both accounts in her complaint. See Doc. 1 at ¶¶
8, 41.
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“Not true. Georgia’s electric rates are average — not below,” and attached a

link to an article in the Atlanta Journal-Constitution titled “Georgians pay

some of the highest energy bills in the country, report finds.” Id. at ¶ 26.

 On March 8, 2022, Defendant Echols tweeted: “Qualified to run for my third

term this morning. A special thanks to so many out there who have helped

me learn this job over the last 11 years. Let’s keep moving Georgia

forward.” Durand replied: “You mean your friends at Ga Power? And the

business lobby buddies? Because you sure haven’t listened to consumer

advocates or environmental advocates or Ga PSC Public Interest staff.” Id.

at ¶ 27.

 On May 25, 2022, Echols tweeted: “Granted I was unopposed, but humbled

to receive more votes than any candidate for any office that appeared on any

ballot yesterday [in the primary election]. Thank you for your confidence.”

Durand replied: “Are you all looking forward to paying the highest power

bills in the nation too? Vogtle is a slow motion disaster silently streaming

towards Georgia’s bills just like the Titanic steamed towards the unseen

iceberg. We’re at #8 in high bills now with no protection thanks to Echols.”

Id. at ¶ 28.

 On July 21, 2022, Durand tweeted: “@timechols: if you really want to pass

motions that help customers you lobby colleagues behind the scenes and line

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up votes. You work to help customers all 12 years in office. This fake effort

won’t work. People know the truth.” Id. at ¶ 29.

Sometime after this last tweet, Echols blocked Durand from his Twitter account,

with the result that she could no longer view, comment on, or reply to Echols’

tweets; send Echols direct messages; or view Echols’ followers, likes, or lists. Id.

at ¶¶ 17, 30. Echols also blocked Durand from “viewing, commenting, or

otherwise responding to Posts on [his] Facebook Page” on November 7, 2022,

allegedly due to “critical viewpoints previously espoused on [that] Page.” Id. at ¶

52.

On or about January 5, 2023, Echols unblocked Durand from his Twitter and

Facebook accounts. Declaration of Tim Echols, attached hereto as Exhibit 1, at ¶

7. He also unblocked all other individuals that he had previously blocked from

those accounts. Id. He has sworn under oath that he will not re-block Durand

from either account or delete any of Durand’s comments in the future. Id. at ¶ 8.

Since the unblocking, Durand has “tweeted at” or about Echols or replied to

one of Echols’ tweets approximately 11 times. See Durand’s Twitter Account,

https://twitter.com/PattyforGaPSC?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp

%7Ctwgr%5Eauthor. All of those tweets and replies are critical of Echols and his

job performance as a Commissioner with the PSC. Id. Echols did not re-block

Durand after she made those tweets; instead, Echols has remained committed to

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keeping Durand unblocked and providing her full access to his social media

accounts. Echols Decl., ¶¶ 9, 10.

II. PROCEDURAL HISTORY

On November 15, 2022, Durand sued Echols under 42 U.S.C. § 1983 for

allegedly retaliating against her and allegedly violating her free speech rights under

the First and Fourteenth Amendments. Doc. 1 at Counts I-II. She seeks monetary

damages, as well as declaratory and injunctive relief. Specifically, she seeks an

injunction that would: “(1) Enjoin the unlawful practice of blocking and censoring

[her] comments on [Echols’] Twitter Account and [Echols’] Facebook Page due to

her viewpoint (2) Enjoin the current unconstitutional and standard-less practice of

blocking posters; (3) restore [her] posting privileges that were blocked and afford

[her] full access afforded any other citizen to [Echols’] Twitter Account and

[Echols’] Facebook Page.” Id. at ¶ 74.

After filing her complaint, Durand also moved for a preliminary injunction.

Doc. 2. She later withdrew the motion on January 9, 2023, because Echols

represented to her that he had “unblocked and restored access to [Durand] and

others on [his] Facebook Page and Twitter Account … [and] has committed to not

delete any comments on Facebook Page and Twitter Account based on the

viewpoint(s) expressed.” Doc. 8.

Echols now moves to dismiss this case for two reasons. First, Durand’s

claims for monetary damages are barred by qualified immunity because the law is
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not “clearly established” that Echols’ conduct is unconstitutional. Second,

Durand’s claims for injunctive and declaratory relief are moot because Echols has

unblocked her and has no intention of—and, indeed, will not—block her in the

future.

III. LEGAL ARGUMENT AND CITATION OF AUTHORITY

A. Qualified immunity bars Durand’s claims for monetary damages.

The defense of qualified immunity “completely protects” “government

officials performing discretionary functions from suit in their individual capacities

unless their conduct violates clearly established statutory or constitutional rights of

which a reasonable person would have known.” Caldwell v. Warden, FCI

Talladega, 748 F.3d 1090, 1099 (11th Cir. 2014). To overcome qualified

immunity, plaintiffs must satisfy a two-prong inquiry. Id. at 1099. First, they

must establish the existence of a constitutional violation. Id. Second, they must

show that, at the time the conduct occurred, the existing law “clearly established”

that the conduct was unconstitutional. Id. These two prongs can, however, be

decided in any order. Melton v. Abston, 841 F.3d 1207, 1221 (11th Cir. 2016).

Thus, courts may skip the first inquiry and “instead proceed directly to analyzing

whether the right was clearly established.” T.R. v. Lamar County Bd. of Educ., 25

F.4th 877, 883 (11th Cir. 2022) (internal quotations omitted).

That is what the Court should do here. Pretermitting whether any First

Amendment violation actually occurred, Durand’s claim fails because she cannot
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satisfy the second “clearly established” prong. Under that prong, the question is

whether the law gave the government official “fair warning that his conduct was

unconstitutional.” Wade v. United States, 13 F.4th 1217 (11th Cir. 2021). “[T]he

contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Corbitt v. Vickers, 929 F.3d

1304, 1311 (11th Cir. 2019). As the Supreme Court has “repeatedly emphasized,”

“the clearly established law standard is a demanding one.” Cantu v. City of

Dothan, 974 F.3d 1217 (11th Cir. 2020) (citing District of Columbia v. Wesby, 138

S. Ct. 577, 589-90 (2018); City & Cty. of San Francisco. v. Sheehan, 575 U.S. 600

(2015)).

To defeat qualified immunity, the plaintiff bears the burden of “identify[ing] a

case where [a defendant] acting under similar circumstances … was held to have

violated the [Constitution].” White v. Pauly, 580 U.S. 73 (2017). And the case

must be from the Supreme Court, the Eleventh Circuit, or the Supreme Court of

Georgia. Sebastian v. Ortiz, 918 F.3d 1301 (11th Cir. 2019). While the case need

not be directly on point, “it must be close enough to have put the statutory or

constitutional question beyond debate.” White, 580 U.S. at 79. Stated differently,

the preexisting law must “dictate[], that is, truly compel[], the conclusion for all

reasonable, similarly situated public officials that what Defendant was doing

violated Plaintiffs’ federal rights.” Evans v. Stephens, 407 F.3d 1272, 1282 (11th

Cir. 2005) (en banc).

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If the caselaw has not “staked out a bright line,” then qualified immunity

“almost always protects the defendant.” Gaines, 871 F.3d at 1210. This is

particularly true in the First Amendment context, where qualified immunity is

“difficult to overcome.” Id.; see also Maggio v. Sipple, 211 F.3d 1346, 1354 (11th

Cir. 2000) (“a defendant in a First Amendment suit will only rarely be on notice

that his actions are unlawful”); Hansen v. Soldenwagner, 19 F.3d 573, 576 (11th

Cir. 1994) (stating that decisions in the First Amendment context “tilt strongly in

favor of immunity”); Dartland v. Metropolitan Dade Cty., 866 F.2d 1321, 1323

(11th Cir. 1989) (noting that only “the extraordinary case” will survive qualified

immunity in the First Amendment context).

Durand cannot meet this high burden. There are no cases from the Supreme

Court, Eleventh Circuit, or Georgia Supreme Court where a state government

employee “acting under similar circumstances as [Echols] was held to have

violated the [First] Amendment.” White, 580 U.S. at 79. As a result, the law is not

“clearly established” that Echols’ conduct of blocking Durand from his Twitter and

Facebook accounts was unconstitutional, and so qualified immunity applies.

This Court’s opinion in Biedermann v. Ehrhart, 2022 U.S. Dist. LEXIS 44898

(N.D. Ga. 2022), is directly on point. There, a State Representative deleted several

comments that the plaintiff posted on her Facebook page that criticized the

representative’s political views. Id. at *2–3. The representative also blocked the

plaintiff from her Facebook page. Id. at *3. As a result, the plaintiff sued the
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representative for retaliation and alleged violations of her First and Fourteenth

Amendment right to free speech. Id. The representative moved to dismiss the

claims based on, inter alia, qualified immunity, and this Court granted the motion.

This Court noted that “the law in this area—the intersection of First Amendment

rights and engagement with government officials’ social media pages—is unsettled

and continues to evolve.” Id. at *16. Consequently, the Court concluded that the

law was not “sufficiently clear on the constitutionality of blocking a citizen from a

government official's social media,” with the result that qualified immunity

applied. Id. at *17.

This Court should reach the same result here. Indeed, courts from other

circuits are in accord. See, e.g., Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 1184

(4th Cir. 2022) (explaining that, “[g]iven the novelty of applying the First

Amendment and state action doctrines … to the burgeoning public fora of social

media, we cannot say that reasonable officials in the [defendants’] position were on

notice that blocking the [plaintiffs] from individual government officials’ public

social media pages could violate the First Amendment”); Novak v. City of Parma,

932 F.3d 421 (6th Cir. 2019) (concluding that “any right Novak or the commenters

may have to post or receive comments [on social media] was not ‘beyond debate,’”

with the result that qualified immunity applied); Swanson v. Griffin, 2022 U.S.

App. LEXIS 5179 (10th Cir. 2022) (applying qualified immunity when a county

commissioner blocked the plaintiff from his social media page for posting
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comments critical of his service because the plaintiff “has not identified a Supreme

Court or Tenth Circuit case addressing a set of facts sufficiently similar to those [at

issue here]”).

For these reasons, qualified immunity bars Durand’s claims for monetary

damages under the First and Fourteenth Amendments, and this Court should

dismiss them.

B. Durand’s claims for equitable relief are moot.

Under Article III of the United States Constitution, “federal courts may

adjudicate only actual, ongoing cases or controversies.” U.S. Const. art. III, § 2;

Brooks v. Ga. State Bd. of Elections, 59 F.3d 1114, 1118 (11th Cir. 1995). An

action that is moot “cannot be characterized as an active case or controversy.”

BankWest, Inc. v. Baker, 446 F.3d 1358, 1363 (11th Cir. 2006). “[A] case is moot

when the issues presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496

(1969). “[P]ut another way, a case is moot when it no longer presents a live

controversy with respect to which the court can give meaningful relief.” Florida

Ass’n of Rehab. Facilities, Inc. v. Florida Dep’t of Health and Rehab. Servs., 225

F.3d 1208, 1216–17 (11th Cir. 2000).

Thus, when events occur after the commencement of a lawsuit that deprive a

federal court of its ability to give the plaintiff meaningful relief, the case (or claim)

is moot and must be dismissed. See, e.g., Jews for Jesus v. Hillsborough County
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Aviation Auth., 162 F.3d 627 (11th Cir. 1998); Florida Ass’n of Rehab. Facilities,

225 F.3d at 1217 (explaining that if the court “can no longer redress the injuries

claimed by the parties, the case is moot and should be dismissed”). Dismissal of a

moot case (or claim) is required because “mootness is jurisdictional.” See Florida

Ass’n of Rehab. Facilities, 225 F.3d at 1227 n.14 (citing North Carolina v. Rice,

404 U.S. 244, 246 (1971) (“The question of mootness is . . . one which a federal

court must resolve before it assumes jurisdiction”)).

Here, Durand’s requests for equitable relief are moot because Echols has

provided her with the exact relief she seeks—i.e., he has unblocked her from his

Twitter and Facebook accounts.2 Consequently, there is no meaningful equitable

relief left for this Court to give. Although the “voluntary cessation of allegedly

illegal conduct does not moot a case,” United States v. Concentrated Phosphate

Export Ass’n, 393 U.S. 199, 203 (1968), “there is an important exception to this

important exception, when there is no reasonable expectation that the voluntarily

ceased activity will, in fact, actually recur,” United States v. W.T. Grant Co., 345

U.S. 629, 633 (1953). And where, as here, the defendant is not a private citizen but

a government actor, there is a rebuttable presumption that the objectionable

behavior will not recur. See Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d

2
Durand also seeks the unblocking of other individuals who are not plaintiffs in
this case. Doc. 1 at ¶ 74. Durand lacks standing to obtain injunctive relief on
behalf of those non-parties. Nevertheless, Echols has unblocked all people he has
previously blocked on his Twitter and Facebook profiles and has agreed not to
block any person in the future. Echols Aff., ¶ 6.
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1320, 1328-29 (11th Cir. 2004) (“Governmental entities and officials have been

given considerably more leeway than private parties in the presumption that they

are unlikely to resume illegal activities”); Troiano v. Supervisor of Elections, 382

F.3d 1276 (11th Cir. 2004) (explaining that courts are “more likely to trust public

defendants to honor a professed commitment to changed ways”).

A presumption therefore exists in this case that Echols’ purported violations

of Durand’s constitutional rights will not recur. Echols has unambiguously

terminated any constitutional violation by unblocking Durand and giving her full

access to his Twitter and Facebook accounts. Echols Decl. at ¶ 7. He has also

sworn under oath that he has no intention to—and will not—block Durand in the

future or delete any of her comments from his Twitter and Facebook accounts. Id.

at ¶ 8. Most significantly, he has consistently demonstrated that he will adhere to

his policy of giving Durand full access to his social media accounts. Since the

unblocking, Durand has “tweeted” at or about Echols (or replied to one of his

tweets) approximately 11 times, and despite the critical nature of those

tweets/comments, Echols has not deleted them and has continued to give Durand

access to his accounts. Id. at ¶¶ 9, 10. For these reasons, Durand cannot overcome

the presumption that Echols’ conduct will not recur. Her requests for injunctive

and declaratory relief are therefore moot and should be dismissed. See, e.g.,

Wagschal v. Skoufis, 857 Fed. App’x 18 (2d Cir. 2021) (affirming the dismissal of

the plaintiff’s requests for injunctive and declaratory relief as moot because the
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government official unblocked the plaintiff, stated in two declarations that he

would not block the plaintiff in the future, and “has consistently and voluntarily

refrained from blocking or otherwise restricting [the plaintiff’s] access”);

McKercher v. Morrison, 2019 U.S. Dist. LEXIS 37848 (S.D. Ca. 2019)

(concluding that the plaintiff’s requests for injunctive and declaratory relief were

moot because “he obtained the relief requested - the ability to access and comment

on [the defendant’s] Facebook page”).

IV. CONCLUSION

For the foregoing reasons, Echols respectfully asks the Court to grant this

motion and dismiss Durand’s case in its entirety.

Respectfully submitted,

CHRISTOPHER M. CARR 112505

Attorney General

LORETTA L. PINKSTON-POPE 580385

Deputy Attorney General

SUSAN E. TEASTER 701415

Senior Assistant Attorney General

/s/ Ellen Cusimano ______

ELLEN CUSIMANO 844964
Assistant Attorney General

Please address all communications to:

Ellen Cusimano
Assistant Attorney General
State Law Department

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40 Capitol Square SW
Atlanta, GA 30334
Tel: (404) 458-3597
Email: ecusimano@law.ga.gov

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CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing document has been prepared in Times

New Roman (14 point) and fully complies with the font and point selection

requirements of LR 5.1(B), N.D. Ga.

/s/ Ellen Cusimano

Ellen Cusimano

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CERTIFICATE OF SERVICE

I hereby certify that on this date I have electronically filed the foregoing

brief using the CM/ECF system, which will automatically send electronic mail

notification of such filing to all counsel of record.

This 30th day of January, 2023.

/s/ Ellen Cusimano

Ellen Cusimano

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