          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
             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


                                    - 4 -
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),


                               - 5 -
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.




                              - 6 -
            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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