Federal judge denies Port Authority request for stay pending appeal on Black Lives Matter masks

A federal judge on Wednesday denied a request by Port Authority of Allegheny County to stay his decision allowing employees there to wear Black Lives Matter masks at work.

U.S. District Judge J. Nicholas Ranjan ruled in January that a policy implemented last summer by the authority banning political speech by employees on duty was “arbitrary and over broad.”

Attorneys for the Port Authority have filed an appeal with the 3rd U.S. Circuit Court of Appeals and asked Ranjan to stay his order — which enjoined the agency from disciplining employees who wear such masks — while the appeal is pending.

A stay would have prevented employees from wearing Black Lives Matter masks pending the outcome of the appeal.

On Wednesday, Ranjan said in a 15-page opinion that granting a stay would be “an unacceptable dereliction of [his] judicial duty, and cause substantial harm to individual employees’ First Amendment rights.”

Following the death of George Floyd at the hands of the police in Minneapolis last May, protests erupted nationwide. In Pittsburgh, many of Port Authority’s 1,700 drivers and other employees began wearing Black Lives Matter masks.

However, in July, an employee complained, asking what would happen if he wore a “White Lives Matter” mask.

Port Authority, at first, implemented a policy prohibiting buttons, stickers, clothing or masks that had a “political or social protest nature.”

Several weeks later, following protests of the authority, it implemented a more restrictive policy, limiting employees to only four types of approved masks — one with the authority logo; the union logo; solid blue or black; or a surgical N-95 mask.

The Amalgamated Transit Union Local 85 filed a federal lawsuit against Port Authority in September.

Ranjan had a hearing on the issue, and in January found that the ban on masks violated the employees’ free speech and equal protection rights.

Following that decision, Port Authority sought a stay of Ranjan’s decision, which the judge refused to do.

The judge’s reasoning

Ranjan said in his opinion on Wednesday that Port Authority did not meet any of the four criteria required for a stay, which include showing: a strong likelihood of success on the merits; irreparable harm without a stay; that a stay would harm the authority more than the union employees; and that a stay would serve the public interest.

Ranjan wrote that both public interest and relative harm weigh heavily against granting a stay.

A stay, he said, would allow Port Authority to prohibit speech of “public importance that is protected by the First Amendment.”

The Port Authority argued that there was a potential for disruption if employees wear Black Lives Matter masks, but Ranjan said they failed to prevent any evidence of that.

“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,” he wrote. “There was no evidence of even a single complaint received from the bus-riding public about a driver wearing a mask or other uniform adornment.”

Further, he continued, “there is also a more practical harm that would result from a stay here.”

Ranjan said that appeals to the Third Circuit take almost 10 months on average to be decided, and that as covid-19 vaccines become more widely available and herd immunity becomes possible, it is likely that mask mandates will go away.

“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.”

Adam Brandolph, a Port Authority spokesman, said he could not comment on the decision as the case is still pending.