# David McClure v. James Ports

> Court of Appeals for the Fourth Circuit · January 29, 2019 · 914 F.3d 866

URL: https://www.frixlaw.com/law-library/cases/4362797

## Case

- **Full name:** David MCCLURE; Amalgamated Transit Union Local 1300, Plaintiffs - Appellants, v. James PORTS; Earl Lewis ; Paul Comfort; Louis Jones ; Kevin Quinn, Defendants - Appellees.
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** January 29, 2019
- **Citations:** 914 F.3d 866
- **Precedential status:** Published
- **Opinion:** Opinion by Motz
- **Judges:** Motz, Agee, Richardson
- **Cited by:** 129 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4362797

## How later opinions describe it (automated extraction)

- rejecting plaintiff’s “contention that his Fourth Amendment rights were violated when police escorted him from MTA property” because “the police acted reasonably”

## Opinion text

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 18-1065

DAVID MCCLURE; AMALGAMATED TRANSIT UNION LOCAL 1300,

Plaintiffs - Appellants,

v.

JAMES PORTS; EARL LEWIS; PAUL COMFORT; LOUIS JONES; KEVIN
QUINN,

Defendants - Appellees.

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: December 13, 2018 Decided: January 29, 2019

Before MOTZ, AGEE, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Agee and
Judge Richardson joined.

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.
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.

2
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 gave

interviews to the media describing the alleged safety hazards.

During this time, McClure continued to perform his ordinary union duties. As part

of these duties (and pursuant to the collective bargaining agreement), McClure

represented Local 1300 members in their employment disputes with the MTA. On

September 15, 2016, McClure appeared at a disciplinary appeal hearing on behalf of a

3
union member. Vastina Holland-Brown, one of two hearing officers employed by the

MTA Office of Labor Employee Relations, presided.

Before the hearing began, McClure learned that the disciplined member had

retired from his job with the MTA, rendering the appeal moot. McClure sought to

withdraw the member’s grievance, but Holland-Brown refused the request. McClure

reacted by questioning her competence and stating that he would try to keep her from

presiding over future Local 1300 cases. Holland-Brown took offense and filed an

internal charge with the Maryland Department of Transportation’s Office of Diversity

and Equity (“ODE”), alleging that McClure verbally harassed her.

The ODE responded by contacting McClure’s superior within the Amalgamated

Transit Union International’s organizational structure, Lawrence Hanley. In a series of

letters, ODE Director Louis Jones described McClure’s behavior as “intimidating[] and

threatening,” and so requested assurances that McClure would “conduct himself in a

professional manner when engaging [in] union business on MTA property.” If not, the

MTA would have “no other choice but to require Mr. McClure to obtain permission

before entering any MTA offices” in accordance with the terms of the collective

bargaining agreement. Additionally, Jones announced that the MTA was suspending

McClure’s keycard access to its facilities.

McClure did not provide the requested assurances. In the months that followed,

he continued to appear at grievance hearings held on restricted MTA property, and he at

no point sought permission to do so. This caused the MTA to send another letter on

February 21, 2017, restating its permission policy. The letter also suggested that the

4
MTA could conduct hearings at an alternative location, allowing McClure to represent

Local 1300 members without involvement of the access restriction.

On March 31, 2017, McClure again tried to attend a grievance hearing in an MTA

conference room. When he arrived, Holland-Brown notified her supervisor, who directed

police to escort McClure from the premises. A similar situation played out on April 26,

2017: after McClure arrived on MTA property for a hearing, police escorted him out.

McClure showed up at two more hearings the next month. Although McClure did not ask

the MTA for permission to attend these last two hearings, Local 1300’s secretary did

notify the agency that he intended to be present. Finding this notification insufficient, the

MTA still denied McClure access.

This cat-and-mouse game concluded on June 1, 2017, when the MTA informed

McClure that he no longer needed permission to attend hearings at agency offices, as

Holland-Brown had retired. But the MTA did not reactivate McClure’s keycard. Rather,

the agency used the opportunity to review the keycard access of all union officers who

had taken leave. It then revoked any residual access the officers maintained from their

former MTA positions.

C.

Local 1300 and McClure filed this action against four Maryland transportation

officials on May 1, 2017, while the permission policy was still in place. 1

1
As plaintiffs note, the MTA’s voluntary cessation of the permission policy does
not render the claim moot. See Porter v. Clarke, 852 F.3d 358, 364 (4th Cir. 2017).

5
As relevant here, plaintiffs alleged three claims under 42 U.S.C. § 1983. They

asserted two First Amendment retaliation claims, challenging both the permission policy

applied to McClure and the general revocation of Local 1300 officers’ keycard access.

They alleged that both Local 1300’s advocacy campaign and McClure’s criticism of

Holland-Brown qualified as protected speech, and that the MTA unconstitutionally

limited their ability to enter government property as reprisal for that speech. McClure

also brought a Fourth Amendment claim, contending that police unlawfully seized him

when they escorted him off MTA property.

The MTA moved to dismiss, requesting summary judgment in the alternative and

supplementing the pleadings with more than a dozen exhibits. Plaintiffs objected and

moved for discovery pursuant to Fed. R. Civ. P. 56(d).

The district court granted summary judgment to the MTA. In doing so, the court

accepted that McClure’s criticism of Holland-Brown constituted protected speech and it

assumed that the MTA changed its access policies to retaliate against this speech. The

court nonetheless concluded that plaintiffs’ First Amendment retaliation claims failed

because the MTA’s access policies did not have an unconstitutionally adverse impact on

plaintiffs. As to the Fourth Amendment claim, the court held that no unlawful seizure

had occurred because the MTA had “reasonably deemed” McClure “to be a trespasser.”

Finally, the court denied plaintiffs’ Rule 56(d) discovery motion, concluding that the

MTA’s provisional concession as to retaliatory intent obviated any need for it.

6
II.

Plaintiffs initially and principally challenge the district court’s grant of summary

judgment on their First Amendment claims. We review that grant de novo, accepting

plaintiffs’ factual allegations as true and drawing all reasonable inferences in their favor.

Gordon v. CIGNA Corp., 890 F.3d 463, 470 (4th Cir. 2018).

As a general matter, public officials may not respond to “constitutionally protected

activity with conduct or speech that would chill or adversely affect [t]his protected

activity.” Balt. Sun Co. v. Ehrlich, 437 F.3d 410, 416 (4th Cir. 2006). That is so “even if

the act, when taken for different reasons, would have been proper.” ACLU of Md., Inc. v.

Wicomico Cty., 999 F.2d 780, 785 (4th Cir. 1993). To succeed on a First Amendment

retaliation claim, a plaintiff must show: “(1) [the] speech was protected, (2) the alleged

retaliatory action adversely affected [the] protected speech, and (3) a causal relationship

[existed] between the protected speech and the retaliation.” Raub v. Campbell, 785 F.3d

876, 885 (4th Cir. 2015) (internal quotation marks omitted).

Here, it is undisputed that plaintiffs engaged in activity protected by the First

Amendment. See Smith v. Ark. State Highway Emps., Local 1315, 441 U.S. 463, 464

(1979) (“The First Amendment . . . protects the right of associations to engage in

advocacy on behalf of their members.”). Moreover, for the purposes of the summary

judgment motion, the district court assumed that the MTA imposed the challenged

policies — namely, the permission requirement and the keycard suspension — to retaliate

against this protected activity. We will do the same. All that is left to consider then is

7
the second element: whether the MTA’s actions against Local 1300 amounted to

unconstitutionally adverse behavior.

Plaintiffs allege that the MTA’s access policies had multiple adverse effects. Most

obviously, the policies prevented McClure from entering restricted MTA property

without threat of removal. Plaintiffs also assert that the policies stigmatized McClure as

one who behaved inappropriately. They contend that these policies put McClure in a

bind where compliance would mean losing face with union members and resistance

would mean risking his ability to advocate on their behalf. Plaintiffs further argue that

the policies generally made it harder for Local 1300 officers to communicate with union

members.

To establish an adverse effect, plaintiffs need not “show that the action taken in

response to [their] exercise of constitutional rights independently deprives [them] of a

constitutional right.” Wicomico, 999 F.2d at 786 n.6. But “when a private citizen is the

speaker and a public official is the retaliator,” the “nature of the retaliatory acts impacts

whether those acts are actionable.” Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686

(4th Cir. 2000). In this context, retaliation “may be justified [i.e., not actionable] when

legitimate countervailing government interests are sufficiently strong” to override the

private interest in the challenged action. Bd. of Cty. Comm’rs v. Umbehr, 518 U.S. 668,

675 (1996).

Given the nature of the action and the competing interests at stake in this case, we

conclude that the challenged “government action[], due to [its] nature, [is] not

actionable.” Balt. Sun, 437 F.3d at 416. This is so because plaintiffs’ interest in

8
maintaining access to restricted MTA property is slight when compared to the

government’s interest in regulating such access.

Plaintiffs undoubtedly have an interest in accessing MTA property to interact with

and support union members. But as they conceded before the district court, Local 1300

officers have never been entitled to uninhibited access to MTA property. The collective

bargaining agreement states that Local 1300 “officers . . . shall comply with all MTA

regulations pertaining to entry into any part of the MTA’s premises.” 2 Thus, far from

having any right to access MTA property, union officers enjoyed only a temporary

privilege of special access. Further, it is important to note that the union’s access to MTA

property is wholly separate from its access to grievance hearings. Even though the

officers objected to the MTA’s access regulations, they remained free to schedule

hearings at “alternative location[s]” where they could fully represent their members.

In contrast, the MTA has “inherent” authority to regulate its restricted areas in any

way that is “compatible with the intended purpose of the property.” Perry Educ. Ass’n v.

Perry Local Educators’ Ass’n, 460 U.S. 37, 49 (1983). And it here has a plain and

weighty interest in maintaining control over restricted areas, like private offices and

garages with heavy machinery, which are used for purposes other than citizen speech.

See United States v. Kokinda, 497 U.S. 720, 725 (1990) (requiring balancing when the

2
Plaintiffs now suggest that the agreement goes beyond these terms, citing
Bonnell/Tredegar Indus., Inc. v. NLRB, 46 F.3d 339, 344 (4th Cir. 1995), for the
proposition that “past practice can become an implied term of a collective bargaining
agreement.” But plaintiffs waived that argument by failing to develop it in their opening
brief and taking only a “passing shot” in their reply brief. Grayson O Co. v. Agadir Int’l
LLC, 856 F.3d 307, 316 (4th Cir. 2017) (internal quotation marks omitted).

9
“governmental function operating is not the power to regulate or license, as lawmaker,

but, rather, as proprietor, to manage its internal operations” (internal quotation marks and

alterations omitted)). The MTA’s interest is thus “sufficiently strong,” Umbehr, 518 U.S.

at 675, to overcome plaintiffs’ interest in special access. 3

We held as much in Wicomico. There, an ACLU paralegal claimed that a prison

violated her First Amendment rights when it withdrew special privileges allowing her to

visit inmates in rooms reserved for attorneys and clergy. See Wicomico, 999 F.2d at 785–

86. The prison revoked the privileges after the ACLU filed a lawsuit using information

gleaned from these visits, creating “tension among prison employees and heighten[ing]

administrators’ concerns about staff and inmate contact with outsiders.” Id. at 782.

Accepting that the paralegal’s speech was protected and the prison’s action was

retaliatory, we nonetheless held that the withdrawal of a special access privilege “did not

chill, impair, or deny the[] exercise of First Amendment rights” because the ACLU

paralegal remained “free to visit with inmates in secure, non-contact meeting rooms . . .

which is all that [the prison] provides to any paralegal or other non-professional visitor.”

Id. at 786. We further explained that just because the prison deviated from its general

3
The district court, following our lead in earlier cases, concluded that plaintiffs’
First Amendment claims failed because the access policies posed only a “de minimis”
inconvenience to them. McClure v. Ports, No. MJG-17-1198, 2017 WL 6447185, at *8
(D. Md. Dec. 18, 2017); see, e.g., Constantine v. Rectors & Visitors of George Mason
Univ., 411 F.3d 474, 500 (4th Cir. 2005). Plaintiffs insist that the access policies
constituted more than a “de minimis” burden. This may be so in a colloquial sense. But
in the context of First Amendment retaliation claims, our “de minimis” label is shorthand
for cases where, as here, the government’s legitimate interests in managing its own
functions are so strong that they dwarf the opposing private interests.

10
policy to make a special accommodation did not mean it was “bound to continue the

practice.” Id.; see also Umbehr, 518 U.S. at 675 (“[T]he First Amendment does not

create property or tenure rights, and does not guarantee absolute freedom of speech.”).

So too here. MTA officials extended a courtesy to Local 1300 officers by

allowing them keycard access to spaces closed to the general public. This grant of access

was purely discretionary, with no process governing it. When McClure upset an MTA

employee by criticizing her work, the MTA revoked this discretionary courtesy and

further asked McClure to seek permission before attending hearings where that same

employee might be in attendance. Like the prison in Wicomico, the MTA has a critical

interest in managing a productive work environment for its employees and limiting

outside disruptions. And for their part, Local 1300 officers remain free to represent their

members at hearings off-site or obtain authorization to enter MTA offices for these

purposes. As such, the effect of the MTA’s access policies is not sufficiently adverse to

support a First Amendment retaliation action. 4

4
In an effort to save their claims, plaintiffs insist that we must apply strict scrutiny
here because the MTA exercised “unbridled discretion” by limiting their access to a type
of public forum. We doubt that forum analysis has any role in a retaliation inquiry, and
plaintiffs do not cite a single retaliation case to support this novel suggestion.
But even if plaintiffs could shoehorn forum analysis into the retaliation
framework, their argument would fail. The MTA would have needed to “intentionally
open[]” its garages, rail terminals, and office spaces for the purposes of “public
discourse” to convert these restricted spaces into limited public fora. Child Evangelism
Fellowship of MD, Inc. v. Montgomery County Pub. Sch., 457 F.3d 376, 382 (4th Cir.
2006) (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800
(1985)). The MTA did not go so far when it scheduled closed personnel hearings in its
conference rooms — particularly given that it offered to hold these hearings at reasonable
alternative locations.

11
III.

McClure’s contention that his Fourth Amendment rights were violated when

police escorted him from MTA property also fails. Like the district court, we conclude

that the police acted reasonably without reaching the question of whether the challenged

acts qualified as seizures.

The Fourth Amendment “guarantees the right to be free from unreasonable . . .

seizures.” Bailey v. United States, 568 U.S. 186, 189 (2013). An officer may arrest

someone without violating the Fourth Amendment if the officer “has probable cause to

believe that an individual has committed even a very minor criminal offense in his

presence.” Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).

Maryland law makes it a crime for a person to “refuse or fail to leave . . . a specific

part of a public building . . . during regular business hours if”:

(1) the surrounding circumstances would indicate to a reasonable person
that the person who refuses or fails to leave . . . has no apparent lawful
business to pursue at the public building . . . and
(2) an authorized employee of the government unit asks the person to leave.

Md. Code Ann., Crim. Law § 6-409(b). The Court of Special Appeals of Maryland,

construing the statutory precursor to § 6-409, has held that “lawful business” includes

“any constitutionally protected activity.” Kirstel v. State, 284 A.2d 12, 16 (Md. Ct. Spec.

App. 1971). But it also cautioned that a property’s “public character . . . does not grant to

individuals a license to engage in activities which disrupt the activities to which those

facilities are dedicated.” Id. (internal quotation marks omitted).

12
McClure sought entry to MTA property during regular business hours to attend

lawful meetings, but McClure’s lawful purpose did not give him carte blanche to access

restricted MTA offices. Moreover, the MTA had explicitly barred him from entering its

restricted property without permission. When McClure sought to enter the MTA building

without permission and refused to leave when asked to do so by an authorized person, a

reasonable person considering the totality of circumstances would conclude that there

was probable cause to believe McClure had violated § 6-409.

As such, there was no Fourth Amendment violation.

IV.

Finally, we turn to plaintiffs’ contention that the district court abused its discretion

by denying their discovery requests. When a party objects to summary judgment and

files a Rule 56(d) motion, a court “may” allow discovery to proceed if that party “shows

by affidavit or declaration that, for specified reasons, it cannot present facts essential to

justify its opposition.” Fed. R. Civ. P. 56(d). But if “the information sought would not

by itself create a genuine issue of material fact sufficient for the nonmovant to survive

summary judgment,” then a court may deny the motion. Pisano v. Strach, 743 F.3d 927,

931 (4th Cir. 2014). We review such a denial for abuse of discretion. Id.

The district court assumed that plaintiffs satisfied many of the elements of their

claims. Only two narrow issues remained in dispute: whether the MTA’s policies had an

actionable adverse impact and whether the police escorts of McClure from MTA property

were reasonable. Plaintiffs identified nine issues in their Rule 56(d) motion, seven of

13
which directly concerned the retaliatory intent element of the First Amendment claims.

This intent element was not in dispute, so the district court acted well within its discretion

to deny discovery on those seven issues. Only two requests require additional

consideration.

As to their First Amendment retaliation claim, plaintiffs sought “discovery as to

the past practice of the MTA in allowing the union officers to have access to MTA

property without permission and by use of card swipes, including evidence that defendant

officials were well aware of this practice and had no objection to it until the plaintiffs

began engaging in the protected speech.” Although past practice could be relevant to the

meaning of the collective bargaining agreement — as plaintiffs belatedly argue now —

they framed the issue below as one of intent. As a result, they conceded before the

district court that this request was unnecessary given the court’s assumption that the

MTA acted with retaliatory animus.

For their Fourth Amendment claim, plaintiffs requested information “as to actions

taken by Defendants to eject McClure from MTA property, including what eyewitnesses

saw.” This information could have relevance as to whether the actions of police escorts

qualified as seizures. But the district court properly resolved this claim solely on

reasonableness grounds, and so was within its discretion to deny discovery.

Finally, plaintiffs generally assert that the grant of summary judgment without

“normal discovery” prejudiced them. Of course, Rule 56(d) discovery requests are

“broadly favored and should be liberally granted,” McCray v. Md. Dep’t of Transp., 741

F.3d 480, 484 (4th Cir. 2014) (internal quotation marks omitted), but a court need not

14
allow discovery unless a plaintiff identifies material, disputed facts. Plaintiffs did not do

so here. 5 Because plaintiffs’ Rule 56(d) motion did not identify any factual issues that

were essential to their opposition, we find no reversible error.

V.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

5
Though plaintiffs claim that the district court’s reliance on the MTA officials’
affidavits prejudiced them, they have never challenged the substance of these affidavits.

15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4362797. Public record. Not legal advice.