By Vin Gurrieri

Law360 (October 20, 2020, 9:21 PM EDT) -- The Port Authority of Allegheny County, Pennsylvania, has pushed a federal judge to toss a union's suit claiming that its members' constitutional rights were violated by a ban on masks that say "Black Lives Matter" since the policy has already been jettisoned.

The Port Authority urged U.S. District Judge J. Nicholas Ranjan on Tuesday to dismiss a suit by Amalgamated Transit Union Local 85 and three of its members challenging a uniform policy that restricted messages or insignia supporting the BLM movement. The workers claimed that the policy trampled their rights under the First and 14th Amendments as well as under the Pennsylvania Constitution.

But since the policy being challenged was replaced in mid-September, about two weeks before the suit was filed, the Port Authority argued in Tuesday's motion that the plaintiffs no longer have standing to maintain their suit. The current policy allows only solid blue or black masks or masks whose only image is a Port Authority or union logo, according to the motion.

"The law is clear that this court lacks standing to issue declaratory and injunctive relief as to the constitutionality of a Port Authority policy that is no longer in effect," the Port Authority said.

The union sued the Port Authority — which operates buses, light rail and incline services in the Pittsburgh area — claiming a uniform policy adopted in mid-July cut against prior practice that allowed workers to wear masks with messages supportive of the BLM movement.

The updated policy said that "Buttons, stickers, jewelry and clothing (including masks or other face coverings) of a political or social protest nature are not permitted to be worn," according to the complaint.

The workers and their union also asserted that the July policy stood in contrast to the Port Authority's history of allowing messages to be displayed supporting other causes, such as LGBTQ Pride, Black History Month, women's rights, and support for the victims of gun violence.

Although employees who had previously been required to wear masks because of the COVID-19 pandemic weren't disciplined at first for flouting the updated policy, the plaintiffs said that changed in early August when named plaintiffs Sasha Craig and Monika Wheeler, who are "first level supervisor/instructors" for Port Authority, weren't allowed to keep working after they refused to take off their BLM masks, according to the suit.

Union steward James Hanna, another of the named plaintiffs, was wearing a similar mask when he entered Port Authority property on Aug. 13 to represent another employee in a disciplinary proceeding. After he refused an order by a Port Authority supervisor who was conducting the disciplinary hearing to take his mask off, Hanna was told that the remainder of the hearings were canceled and he was sent home pending a disciplinary hearing of his own, the suit said.

The union alleged that the policy illegally singled out Black Lives Matter and that it amounted both to "unlawful content-based regulation of high value speech" and "unconstitutional viewpoint discrimination" that is "racially tainted, and motivated by animus toward the BLM movement, and equal justice," according to the complaint.

But in Tuesday's motion, the Port Authority said it has banned workers since the early 1970s from wearing anything on their uniforms that include political messages or that are tied to "social protest."

While the Port Authority acknowledged that it was lenient in the early days of the pandemic with the types of face coverings workers could wear since it had a hard time procuring enough masks for them to use, it updated its policy after its uniform vendor supplied enough masks for everyday use.

The current policy, which the Port Authority said was adopted in mid-September, requires workers to wear an employer-issued black or blue mask that has only the Port Authority's logo, or an approved mask that has the union's logo on it. Workers can also wear masks and face shields they obtain on their own, including N95 respirators, as long as they are "solid white, black or blue," according to the motion.

"The current uniform policy was not a surprise to plaintiffs," the Port Authority said, adding that it advised the plaintiffs' lawyers more than a month before the suit was filed that the new policy was in the works and that neither the union nor its legal counsel expressed any major objection to the policy before it took effect.

"Disturbingly, nowhere in their 12–page complaint do plaintiffs advise the court that Port Authority enacted the current uniform policy," the Port Authority argued. "The reason for this failure is transparent: it is black letter law that plaintiffs cannot seek equitable relief … regarding a policy that is no longer in effect."

The Port Authority also noted that Local 85's president "has apparently admitted" in published statements that the current policy "is lawful," meaning that there is no dispute over the current policy being applied.

In a footnote, the Port Authority also pointed out that Hanna is the only one of the named plaintiffs who got hit with a verbal warning, and that no disciplinary action was taken against Craig or Wheeler after they were pulled from work "because a question existed as to whether they had knowledge of the uniform policy applicable to their first–level supervisory job unit."

Joseph J. Pass of Jubelirer Pass & Intrieri PC, counsel for the union and the workers named in the suit, told Law360 that the Port Authority's argument "missed the point" that the dispute isn't about the since-replaced policy itself but rather its prohibition against "public employees … making reasonable speech" that was carried over to the amended version.

"The issue isn't the old policy," Pass said. "It's the content of the policy in both the old and the new which did the same thing — prohibit employees from exercising their constitutional First Amendment right."

Pass noted that the plaintiffs are seeking to enjoin the Port Authority from barring workers from wearing masks with messages supportive of Black Lives Matter or "make other speech that is not disruptive to the organization," which he says is in line with the state of the law as outlined by the U.S. Supreme Court.

"They have to be speaking as citizens, which they are; they have to be talking about something of public concern, which it is; and it must be such that it wouldn't disturb an enterprise," he said. "We have had people wearing these masks for some time and there's not a single complaint that we're aware of by the riding public."

A representative of the Port Authority said it does not comment on active litigation. 

ATU Local 85 and the individual employees are represented by Joseph J. Pass and Patrick K. Lemon of Jubelirer Pass & Intrieri PC.

The Port Authority is represented by Brian P. Gabriel of Campbell Durrant PC and Gregory J. Krock of McGuireWoods LLP.

The case is Amalgamated Transit Union Local 85 et al. v. Port Authority of Allegheny County, case number 2:20-cv-01471, in the U.S. District Court for the Western District of Pennsylvania.

--Additional reporting by Matthew Santoni. Editing by Bruce Goldman.

Update: This story has been updated with comment from plaintiffs' counsel.

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