Amalgamated Transit Union Local 85 v. Port Auth.

AMALGAMATED TRANSIT UNION LOCAL 85, et al., Plaintiffs, v. PORT AUTHORITY OF ALLEGHENY COUNTY, Defendant.

2:20-cv-1471-NR

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

February 24, 2021

MEMORANDUM OPINION

J. Nicholas Ranjan, United States District Judge

On January 19, 2021, the Court granted the Union's preliminary-injunction motion, enjoining the Port Authority from enforcing its facemask policy to ban employees' from wearing "Black Lives Matter" facemasks. ECF 44. The Port Authority appealed that decision to the Third Circuit, and now asks this Court to stay its injunction order pending that appeal. ECF 50, ECF 51, ECF 53. Applying the familiar four-part test for stays pending appeal,¹ the Court will deny the Port Authority's motion, for the reasons that follow. The Court will, however, address the factors for a stay in reverse order, because of serious concerns that the Court has with respect to a stay's impact on the public interest and relative harms of the interested parties including, specifically, the Port Authority's employees.

DISCUSSION & ANALYSIS

I. Public Interest & Relative Harm.

Initially, a stay would not be in the public interest, and would cause substantial harm to the Union and its members.

Granting a stay would have the effect of allowing the Port Authority to enjoin speech of public importance that is protected by the First Amendment. That would be contrary to the public interest and cause harm to those employees who seek to exercise their First Amendment rights. See B.H. ex rel. Hawk v. Easton Sch. Dist., 725 F.3d 293, 323 (3d Cir. 2013) ("The ban prevents B.H. and K.M. from exercising their right to freedom of speech, which unquestionably constitutes irreparable injury."); Elrod v. Burns, 427 U.S. 347, 373 (1976) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."); Am. Freedom Def. Initiative v. Se. Pa. Transp. Auth., 92 F. Supp. 3d 314, 330 (E.D. Pa. 2015) ("[T]here is a significant public interest in upholding First Amendment principles."); ACLU v. Ashcroft, 322 F.3d 240, 251 n. 11 (3d Cir. 2003) ("Neither the Government nor the public generally can claim an interest in the enforcement of an unconstitutional law.").

Further, there is also a more practical harm that would result from a stay here. That is, granting a stay could effectively moot the entire lawsuit, handing the Port Authority a complete or near-complete victory by virtue of litigation delay alone.

Appeals in the Third Circuit, on average, take almost 10 months to decide from the date a notice of appeal is filed.² At the same time, while very much uncertain, the increasing availability of COVID-19 vaccines, and potential for herd immunity in the not-so-distant future, suggests at least the possibility that mask mandates couldbecome unnecessary within that timeframe. Thus, if this Court were to grant a stay, the Union members could be subjected to an unconstitutional policy for its remaining duration, without ever having a meaningful opportunity to obtain recourse from the courts.

Under these circumstances, granting a stay would, in the Court's view, be an unacceptable dereliction of its judicial duty, and cause substantial harm to individual employees' First Amendment rights. Cf. Wtulich v. Filipkowska, No. 16-2941, 2019 WL 2869056, at *6 (E.D.N.Y. July 3, 2019) ("Granting a stay during the pendency of this appeal would effectively nullify the Convention by allowing one party to moot its remedial scheme by litigating a case until a wrongfully retained child reaches maturity."); Sierra Club v. Trump, No. 19-892, 2019 WL 2305341, at *1 (N.D. Cal. May 30, 2019) ("Defendants' request to proceed immediately with the enjoined construction would not preserve the status quo pending resolution of the merits of Plaintiffs' claims, and would instead effectively moot those claims.").

Given these considerations, the Court finds that the "public interest" and "relative harm" factors both weigh heavily against granting a stay pending appeal.

II. Irreparable Harm.

The Port Authority has also failed to establish that it will suffer irreparable harm in the absence of a stay.

In arguing that it will suffer such harm, the Port Authority relies on the same generalized fear of "potential disputes and disruption" that the Court rejected as unsupported in its decision. ECF 51, pp. 18-19; ECF 44, pp. 28-43. To begin with, as the Court found on a comprehensive evidentiary record after two days of testimony, no actual disruption occurred during either the few months in which Port Authority drivers freely wore "Black Lives Matter" masks, or the many years in which the Port Authority tolerated its drivers wearing buttons and other uniform adornments with equivalent "political or social protest" messages. See ECF 44, pp. 28-43.

Significantly, the Port Authority has not identified any new incidents or examples of disruption in the month since the Court issued its decision. Instead, as purported evidence of the disruptive potential of "Black Lives Matter" masks, the Port Authority points only to the January 6, 2021, insurrection at the United States Capitol (which did not involve the "Black Lives Matter" movement at all) and a local media report about someone vandalizing four Biden/Harris and two "Black Lives Matter" signs in Greensburg, Pennsylvania (Westmoreland County) around the time of the presidential inauguration. ECF 51, pp. 18-19.³ The Court fails to see the relevance of these unrelated events—neither of which occurred in Allegheny County, nor concern facemasks or the Port Authority's operations.

This lack of any actual or imminent disruption, coupled with the Port Authority's continued failure to present other evidence that such disruption is likely to occur in the future, demonstrates that there is no basis for the Port Authority's contention that it will experience meaningful disruption if the Court's injunction is not stayed. Indeed, as the Court addressed in its prior opinion, conversations between, and statements by, employees on matters of public concern "routinely tak[e] place at all levels in the workplace," and the risk that such speech "will lower morale, disrupt the work force, or otherwise undermine the mission of the office borders on the fanciful." Rankin v. McPherson, 483 U.S. 378, 393 (1987) (Powell, J. concurring). The peaceful, passive speech at issue here is no exception.

For these reasons, the Port Authority has not shown that it will suffer irreparable harm if the Court declines to stay its injunction. The absence of anyirreparable harm alone compels the denial of the Port Authority's motion. Cf. In re Arthur Treacher's Franchisee Litig., 689 F.2d 1137, 1143 (3d Cir. 1982) ("[A] failure by the moving party to satisfy these prerequisites: that is, a failure to show a likelihood of success or a failure to demonstrate irreparable injury, must necessarily result in the denial of a preliminary injunction."); Exec. Home Care Franchising LLC v. Marshall Health Corp., 642 F. App'x 181, 183 (3d Cir. 2016) ("We conclude that the District Court properly disposed of Executive Care's motion for a preliminary injunction on the basis of the irreparable harm' requirement."); B.P.C. v. Temple Univ., No. 13-7595, 2014 WL 4632462, at *5 (E.D. Pa. Sept. 16, 2014) ("Because of the failure to establish irreparable harm, the other factors (likelihood of success, balance of harms and public interest) need not be addressed.").

III. Likelihood of Success.

Finally, the Port Authority is not likely to succeed on the merits of its appeal. The Port Authority raises several specific arguments, which the Court addresses below. But before it does so, there are three important broader considerations here that suggest that the Port Authority is unlikely to prevail in its appeal.

First, the Court's prior decision was expressly narrow and tethered to the facts—compelled largely by the rather unique circumstances of this case and the particular evidentiary record. Thus, for the Port Authority to prevail on appeal, the Third Circuit would essentially need to disagree with how the Court weighed the evidence and the credibility of certain witnesses—which often tends to be a more difficult path to prevail on appeal.

Specifically, the Court found as follows:

[T]he Court's analysis here is guided by the specific facts of this case, and the evidence presented to it at the preliminary-injunction hearing. This evidence included speech of indisputably great public concern. It included a facially neutral policy, but one that quite obviously was directed to target "Black Lives Matter," as well as any potentially competing facemask messages, using the bluntest possible instrument—a categorical, prior restraint aimed at core political speech and reflecting no attempt at tailoring based on context or non-speech considerations. It included a long history of Port Authority employees using uniform adornments and accessories to express political and social-protest speech, notwithstanding the Port Authority's on-the-books policy, without any evidence of resultant disruption. It included an evidentiary record that allowed the Court to assess any actual disruption caused by the specific speech at issue over a several-month period, during a time when racial tensions across the country were at their peak. And it included the narrow issue of specific facemasks to be worn by transit employees for hopefully only a short time longer due to a global health pandemic. This confluence of factors compels the outcome here.

ECF 44, pp. 42-43.

Second, the Port Authority's arguments for a stay largely skirt the central issue in this case—whether it has established actual or likely disruption associated with employees wearing "Black Lives Matter" masks. Instead, the Port Authority cobbles together arguments based on several, unrelated First Amendment concepts from outside the public employment context (e.g.,...