Paul M. McDonough v. City of Portland; Non-Reserved Taxi Group, Inc.

United States Court of Appeals
For the First Circuit
No. 16-1959
PAUL M. MCDONOUGH,
Plaintiff, Appellant,
v.
CITY OF PORTLAND; NON-RESERVED TAXI GROUP, INC.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Thompson, Stahl, and Barron,
Circuit Judges.
John S. Whitman, with Heidi J. Hart and Richardson, Whitman,
Large & Badger, for appellant.
Edward R. Benjamin, Jr., with Adrianne E. Fouts and Drummond
Woodsum, for appellee City of Portland.
Sigmund D. Schutz, with Preti, Flaherty, Beliveau & Pachios,
LLP, for appellee Non-Reserved Taxi Group.
May 1, 2017

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BARRON, Circuit Judge. This case concerns a suit by
Paul M. McDonough, in which he challenges the system by which the
City of Portland ("Portland") distributes permits for taxis to
pick up passengers at the Portland International Jetport.
McDonough alleges that Portland, in violation of the federal
Constitution, denied him the opportunity to apply for a permit on
the basis of his race and national origin. The District Court
granted summary judgment to Portland, because it ruled that
McDonough did not have standing to bring his constitutional
challenge. We affirm.
McDonough filed his complaint in Maine Superior Court on
December 30, 2014. Portland removed the suit to the United States
District Court for the District of Maine on April 24, 2015. Non-
Reserved Taxi Group then intervened in the action. After some
discovery, all parties filed motions for summary judgment on March
21, 2016.
The summary judgment record shows that McDonough was
asked in his deposition whether he would be able and willing to
apply for the permit and to pay the $800 application fee if
Portland removed the cap on the number of permits, as McDonough
sought in his complaint. McDonough answered: "To spend the $800?
That's a very, very, very -- that's a very accurate thing. I
probably -- I probably wouldn't be -- I'd want to go there, but
it's all relative. I wouldn't be as inclined to go there now with

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the -- you're talking about if the same number of cabs were allowed
there or are we talking about when we used to go there for 12 cabs?
See, I don't know." The attorney taking his deposition clarified
that her question was about whether "everything is the same except
you can now apply for a permit." McDonough replied: "Geez, I don't
know. Well, the other thing that I got to keep in mind now, I'm
old and I don't know how much longer I'm going to be doing this.
. . . It's mostly principle. I know that's a foregone word these
days. Some people don't even know what I mean when I mention
that."
After the deposition, McDonough submitted, in a sworn
statement, an errata sheet that contained a series of corrections
to his deposition testimony, presumably pursuant to Rule 30(e) of
the Federal Rules of Civil Procedure. He corrected the above
statement to the following: "I am 71 years old, I've driven a cab
for 47 years, and I don't know how much longer I'm going to be
doing this. If I am physically able to continue working over 50
hours a week, and to change my hours to match when the planes
arrive, then I would definitely pay the $800 [fee] for a . . .
permit."
McDonough does not dispute that, to have standing to
bring this challenge, he must show that he is "able and ready" to
apply for a permit. Donahue v. City of Boston, 371 F.3d 7, 14
(1st Cir. 2014). He also does not dispute that, to meet his burden

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of showing that he is "able and ready" to apply for a permit, he
must show "a likelihood that he will compete for the governmental
benefit in question in the future." Cotter v. City of Boston, 323
F.3d 160, 167 (1st Cir. 2003).
Applying that "likelihood" standard, the District Court
accepted the errata sheet, notwithstanding the defendants'
objection that it should be disregarded under the "sham affidavit"
doctrine. But, the District Court concluded that, even crediting
McDonough's corrected statement from the errata sheet, McDonough
had not met his burden of demonstrating a genuine dispute of fact
regarding whether there was a likelihood that McDonough was ready
and able to apply for the permit. The District Court explained
that the corrected statement set forth in the errata sheet revealed
McDonough's own uncertainty regarding whether he would be
physically able to work fifty hours a week and to change his
working hours to match when planes arrive.
On appeal, McDonough contends that the District Court
erred because the statement from the errata sheet sufficed to
create a genuine issue of material fact regarding the likelihood
that he would seek the permit. But, after reviewing the District
Court's decision de novo, see Donahue, 371 F.3d at 13, we disagree.
The corrected statement in the errata sheet at most indicates that
there is a possibility -- not a likelihood -- that McDonough will
be able and ready to apply for the permit that he contends he is

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being unlawfully denied the opportunity to seek. Accordingly, we
see no basis for reversing the ruling of the District Court.
Nor do the precedents on which McDonough relies support
a different conclusion. In U.S. AirWaves, Inc. v. FCC, 232 F.3d
227 (D.C. Cir. 2000), the plaintiff was a bidder for a license,
and contended that the agency set unlawful rules for the auction.
In ruling that the plaintiff did have standing, the D.C. Circuit
explained that, to show that a prospective applicant is "ready,
willing, and able" to seek a benefit and has standing to challenge
an allegedly impermissible legal restriction on the opportunity to
seek it, the applicant does not need to show that it would
participate "regardless of the circumstances then prevailing."
Id. at 232 (citing Orange Park Florida T.V., Inc. v. FCC, 811 F.2d
664, 672 & n.18 (D.C. Cir. 1987)). But, the D.C. Circuit did not
suggest that a plaintiff could establish standing merely by showing
that it was possible that the plaintiff might seek the benefit
going forward, which is all that McDonough has shown. Rather, in
U.S. AirWaves, the plaintiff had submitted a bid in the first
auction, and affirmed in a sworn affidavit submitted by its chief
executive that it "intended" -- without qualification -- to bid in
a future auction and was able to raise the capital necessary to do
so. 232 F.3d at 232.
McDonough's reliance on Turner v. Fouche, 396 U.S. 346
(1970), Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978),

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Clements v. Fashing, 457 U.S. 957 (1982), and Ne. Fla. Chapter of
Associated Gen. Contractors of Am. v. City of Jacksonville, 508
U.S. 656 (1993), is equally misplaced. Those cases simply hold
that, when a plaintiff challenges a discriminatory process by which
some state benefit is distributed, the plaintiff need not prove
that he would actually be successful in obtaining that benefit if
he applied, whether that benefit is a public office, a seat in a
medical school, or a contract for work. See Ne. Fla. Chapter of
Associated Gen. Contractors of Am., 508 U.S. at 666. These cases
do not support the conclusion that a plaintiff can establish
standing merely by asserting that, while he might apply for the
benefit he contends he is being unlawfully barred from seeking, he
would do so only if he could make changes in his working conditions
that the summary judgment record provides no basis for concluding
that it is likely he would make.
Finally, McDonough states in his brief on appeal that he
was "mistaken" in stating in the errata sheet that he would apply
for a permit only if he was able to change his working hours. He
points out that the record shows that some of his current working
hours currently match some of the times that planes already land
at the airport. He contends in his brief that the record thus
shows that there is no need for him to change his hours in order
for him to apply for the permit.

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The record does show some level of overlap between his
current working hours and the landing times. The fact remains,
however, that McDonough's own statement in the errata sheet avers
that he would apply for a permit only if he could change his
working hours. And McDonough nowhere represents, either in that
errata sheet or elsewhere in the record, that he would not need to
change his working hours if there were the degree of overlap that
currently exists between his working hours and the landing times.
Thus, his attempt on appeal to in effect revise his already once-
revised statement regarding his intentions cannot suffice to
create the genuine issue of material fact that, on this record, is
missing.
The judgment of the District Court is affirmed.

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