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McClure v. Ports

United States Court of Appeals, Fourth Circuit

January 29, 2019

DAVID MCCLURE; AMALGAMATED TRANSIT UNION LOCAL 1300, Plaintiffs - Appellants,
v.
JAMES PORTS; EARL LEWIS; PAUL COMFORT; LOUIS JONES; KEVIN QUINN, Defendants - Appellees.

          Argued: December 13, 2018

          Appeal from the United States District Court for the District of Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge. (1:17-cv-01198-MJG)

         ARGUED:

          Thomas Geoghegan, DESPRES SCHWARTZ & GEOGHEGAN LTD., Chicago, Illinois, for Appellants.

          Eric Scott Hartwig, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees.

         ON BRIEF:

          Daniel B. Smith, AMALGAMATED TRANSIT UNION, Silver Spring, Maryland, for Appellants.

          Brian E. Frosh, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees.

          Before MOTZ, AGEE, and RICHARDSON, Circuit Judges.

          DIANA GRIBBON MOTZ, Circuit Judge.

         David McClure and the public-sector union he represents, Amalgamated Transit Union Local 1300 ("Local 1300"), brought this 42 U.S.C. § 1983 action asserting First and Fourteenth Amendment claims. They seek to reinstate privileges that granted them special access to restricted Maryland Transit Administration ("MTA") property. They claim that Maryland Department of Transportation officials unconstitutionally limited those privileges in retaliation for McClure's criticism of the MTA. McClure separately contends that the officials violated his constitutional rights by ejecting him from MTA property. The district court granted summary judgment to the transportation officials. McClure and Local 1300 appeal. For the reasons that follow, we affirm.

         I.

         A.

         The MTA employs bus drivers and operations workers represented by Local 1300. MTA employees, on leave of absence to perform union duties full-time, make up Local 1300's executive staff. The collective bargaining agreement between Local 1300 and the MTA governs this arrangement. Article V of that agreement, titled "Union Activity on MTA Premises," provides:

UNION business shall not be conducted on MTA property, or on MTA's paid time without the permission of a department head or a representative authorized by him/her. However, it is understood that every effort shall be made to cooperate with such UNION representative when and if such permission is sought for the purpose of legitimate UNION business.

         The agreement also specifies that Local 1300 "officers, while on leave of absence, shall comply with all MTA regulations pertaining to entry into any part of the MTA's premises, vehicles or other MTA property."

         Although the MTA contractually reserved the right to regulate access to its premises, the agency had allowed some Local 1300 officers to maintain access to restricted government property through electronic keycards. One of these officers is Local 1300 President David McClure, who had received broad keycard access to property - like garages and rail terminals - where union members worked.

         Two other officers had also retained residual access to MTA property, consistent with their former positions and more limited in scope. For example, Local 1300's vice president previously operated subway trains, so his keycard had remained programmed to access an MTA subway facility. Although the MTA's standard practice is to suspend an employee's access upon leave, it had not done so for these individuals.

         B.

         On July 8, 2016, Local 1300 launched an advocacy campaign warning against assertedly unsafe MTA policies and operations. In the weeks that followed, Local 1300 issued critical reports, circulated petitions, and hosted town halls; McClure also ...


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