Petition for Writ of Certiorari — Bahig Saliba, Petitioner v. Allied Pilots Association

30a

UNITED STATES COURT OF APPEALS APR 30 2024

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT

U.S. COURT OF APPEALS

BAHIG SALIBA, Plaintiff-Appellant,

v.

ALLIED PILOTS ASSOCIATION, Defendant-Appellee.

No. 23-15631

D.C. No. 2:22-cv-01025-DLR

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Douglas L. Rayes, District Judge, Presiding

Submitted April 22, 2024**

Before: CALLAHAN, LEE, and FORREST, Circuit

Judges.

Bahig Saliba appeals pro se from the district court’s

judgment dismissing his federal action challenging

Allied Pilots Association’sCOVID-19 policies and conduct

during Saliba’s workplace disciplinary process. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo

a dismissal under Federal Rule of

* This disposition is not appropriate for publication and

is not precedent except as provided by Ninth Circuit

Rule 36-3.

APPENDIX A

31a

** The panel unanimously concludes this case is suitable

for decision without oral argument. See Fed. R. App. P.

34(a)(2). Saliba’s request for oral argument, set forth in

the reply brief, is denied.

Civil Procedure 12(b)(6). Puri v. Khalsa, 844 F.3dll52,

1157 (9th Cir. 2017). We affirm.

The district court properly dismissed Saliba’s claims

alleging that Allied Pilots Association violated its duty of

fair representation because Saliba failed to allege facts

sufficient to show that it acted arbitrarily,

discriminatorily, or in bad faith. See Demetris v. Transp.

Workers Union of Am., AFL-CIO, 862 F.3d 799, 804-05

(9th Cir. 2017) (explaining that a union breaches its duty

of fair representation when its conduct is arbitrary,

discriminatory, or in bad faith; and that a union’s

conduct will only be deemed arbitrary if “so far outside”

a “wide range of reasonableness” that it is “wholly

irrational” (citations and internal quotation marks

omitted)).

The district court properly dismissed Saliba’s remaining

claims because Saliba failed to allege facts sufficient to

state any plausible claim. See Pasadena Republican

Club v. W. Justice Ctr., 985 F.3dll61, 1166-67 (9th Cir.

2021) (explaining that 42 U.S.C. § 1983 liability requires

a defendant to act under color of state law, which is

analyzed by “whether the defendant has exercised power

possessed by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of

State law” (citation and internal quotation marks

omitted)); Allen v. Gold Country Casino, 464 F.3dl044,

1048(9th Cir. 2006) (explaining that 18 U.S.C. § 242 does

not give rise to private civil liability); G.S.

2 23-15631

(4 of 4)

32a

Case: 23-15631, 04/30/2024, ID: 12881475, Dkt Entry:

13-1, Page 3 of 3

Rasmussen & Assocs., Inc. v. Kalitta Flying Serv., Inc.,

958 F.2d 896, 902 (9th Cir. 1992) (explaining that there

is no private right of action under the Federal Aviation

Act, “particularly where plaintiffs claim is grounded in

the regulations rather than the statute itself’).

The district court did not abuse its discretion in denying

reconsideration because Saliba failed to establish a basis

for such relief. See Sch. Dist. No. 1J, Multnomah

County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63(9th

Cir. 1993) (setting forth standard of review and grounds

for reconsideration).

AFFIRMED.

3 23-15631

33a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Bahig Saliba,

Plaintiff,

v.

Allied Pilots Association,

Defendant.

No. CV-22-01025-PHX-DLR

ORDER

The Court dismissed this action on March 27, 2023. (Doc.

17.) Plaintiff seeks reconsideration of that order. (Doc.

18.)

Motions for reconsideration should be granted only in

rare circumstances. Defenders of Wildlife v. Browner,

909 F. Supp. 1342, 1351 (D. Ariz. 1995). Mere

disagreement with a previous order is an insufficient

basis for reconsideration. See Leong v. Hilton Hotels

Corp., 689 F. Supp. 1572, 1573 (D. Haw. 1988).

“Reconsideration is appropriate if the district court (1) is

presented with newly discovered evidence, (2) committed

clear error or the initial decision was manifestly unjust,

or (3) if there is an intervening change in controlling

law.” School Dist. No. 1J, Multnomah Cnty. v. ACandS,

Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

APPENDIX B

34a

Such motions should not be used for the purpose of

asking a court ‘“to rethink what the court had already

thought through—rightly or wrongly.’” Defenders of

Wildlife, 909 F. Supp.

at 1351 (quoting Above the Belt, Inc. v. Mel Bohannon

Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)).

The Court has reviewed Plaintiffs motion and finds

reconsideration is not warranted. Plaintiff does not

identify any intervening change in controlling law, nor

does he present any material information or argument

that could not have been presented earlier with

reasonable diligence. Instead, Plaintiff quarrels with the

correctness of the Court’s order and essentially asks that

the Court re-think what it has already thought through.

That is not the purpose of a motion for reconsideration.

IT IS ORDERED that Plaintiff s motion for

reconsideration (Doc. 18) is DENIED.

Dated this 20th day of April, 2023.

Douglas L. Rayes

United States District Judge

35a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Bahig Saliba,

Plaintiff,

v.

Allied Pilots Association,

Defendant.

No. CV-22-01025-PHX-DLR

ORDER

At issue is Defendant Allied Pilots Association’s (“APA”)

motion to dismiss Plaintiff Bahig Saliba’s complaint

(Doc. 9), which is fully briefed (Docs. 12, 15). For reasons

explained below, APA’s motion is granted, and this case

is dismissed.

I.

Background9

Saliba is a pilot employed by American Airlines

(“American”). APA is the union that represents

American’s pilots. Though Saliba is not a member of the

union, he is in a bargaining unit represented by APA.

9 The following background is based on the allegations in Saliba’s

complaint (Doc. 1) along with documents properly subject to judicial

notice.

APPENDIX C

36a

During the COVID-19 pandemic, American

adopted a policy requiring passengers to wear masks

during flights and requiring employees to wear masks

while at work. Pilots were required to wear masks while

facing passengers but were not required to wear a mask

in the flight deck. APA supported American’s mask

policy and encouraged its pilots to comply.

American’s internal mask policy was only one of many

mask mandates that applied to air travelers during the

pandemic. For example, Executive Order 13998 imposed

a federal mask mandate for air travel. And the Federal

Aviation Administration (“FAA”) issued guidance

mirroring the executive order.

On December 6, 2021, Saliba approached a

Transportation Security Administration (“TSA”)

checkpoint without a mask. The TSA officer asked him

to wear one, but he refused. The TSA officer contacted

airport police, and Saliba told the officers that he was

exempt from the mask mandate because, in his personal

judgment, wearing a mask could compromise his fitness

for duty. After a brief detention, Saliba was released,

still not wearing a mask.

Airport police reported the incident to American,

after which Saliba was removed from active flying duty

and placed on administrative leave pending disciplinary

action. On December 9, 2021, American informed Saliba

that it was proposing disciplinary action against him. A

hearing on that proposal was held on January 6, 2022.

And in the month leading up to hearing, Saliba

exchanged numerous emails with APA’s in-house lawyer,

Rupa Baskaran. Saliba insisted that APA both represent

him at the hearing and argue his preferred defense,

which was that Federal Aviation Regulation (“FAR”) §

61.53 gave him unilateral authority to determine

37a

whether to wear a mask. Ms. Baskaran explained to

Saliba that APA will represent him at the hearing, if he

so chooses, but APA would not advance Saliba’s

preferred defense because APA agreed with American’s

mask policy and disagreed with Saliba’s idiosyncratic

reading of FAR § 61.53. Ms. Baskaran also explained to

Saliba that, if he does not affirmatively elect APA

representation, he may represent himself at the hearing

and advance whatever arguments he would like. Saliba

never affirmatively elected APA representation

During the disciplinary hearing, Saliba was given

an opportunity to, and in fact did, argue his FAR § 61.53

defense. He also acknowledged that, on December 6,

2021, he was not wearing a mask at the TSA checkpoint.

Ultimately, a written advisory was placed into Saliba’s

personnel file regarding his failure to comply with

American’s mask policy. With

APA’s assistance, Saliba filed a grievance challenging

American’s decision to issue a written advisory. Those

administrative proceedings remain ongoing.

In the meantime, Saliba filed this action against

APA, accusing it of violating its statutory duty of fair

representation by not opposing American’s mask policy

and not advancing Saliba’s preferred defense at this

disciplinary hearing. Saliba also accuses APA of

violating 18 U.S.C. § 242, which criminalizes certain

deprivation of constitutional rights under color of state

law, 42 U.S.C. § 1983, which provides civil remedies for

the same, and 14 C.F.R. § 91.11, an FAA regulation that

prohibits interference with an airplane crew member’s

performance of their duties. APA has moved to dismiss

all claims.

II.

Legal Standard

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When analyzing a complaint for failure to state a

claim to relief under Federal Rule of Civil Procedure

12(b)(6), the well-pled factual allegations are taken as

true and construed in the light most favorable to the

nonmoving party. Cousins v. Lockyer, 568 F.3d 1063,

1067 (9th Cir. 2009). Legal conclusions couched as

factual allegations are not entitled to the assumption of

truth, Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), and

therefore are insufficient to defeat a motion to dismiss

for failure to state a claim, In re Cutera Sec. Litig., 610

F.3d 1103, 1108 (9th Cir. 2010). Nor is the Court

required to accept as true “allegations that contradict

matters properly subject to judicial notice,” or that

merely are “unwarranted deductions of fact, or

unreasonable inferences.” Sprewell v. Golden State

Warriors, 266 F.3d 979, 988 (9th Cir. 2001). To avoid

dismissal, the complaint must plead sufficient facts to

state a claim to relief that is plausible on its face. Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This

plausibility standard “is not akin to a ‘probability

requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Iqbal,

556 U.S. at 678 (quoting Twombly, 550 U.S. at 556).

“Where a complaint pleads facts that are ‘merely

consistent with’ a defendant’s liability, it ‘stops short of

the line between possibility and plausibility of

entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at

557).

III.

Analysis

Saliba’s claims under §§ 242, 1983, and 91.11 fail as a

matter of law. Section 242 is a criminal statute that does

not provide a private civil right of action. See Allen v.

Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir.

2006). Section 1983 provides a civil right of action, but

39a

only against those acting under color of state law. APA is

a union, and generally “[u]nions are not state actors;

they are private actors.” Hallinan v. Fraternal Order of

Police of Chicago Lodge No. 7, 570 F.3d 811, 815 (7th

Cir. 2009). Although there are some limited

circumstances under which the conduct of an otherwise

private actor may be deemed state action, see Kirtley v.

Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003), none of

those limited circumstances are present here. And the

Ninth Circuit has held that the FAA does not create an

implied right of action. G.S. Rasmussen & Associates,

Inc. v. Kalitta Flying Service, Inc., 958 F.2d 896, 902

(9th Cir. 1992) (“[W]e have previously held that there is

no implied private right of action under the Federal

Aviation Act. We reach the same conclusion . . . where

plaintiffs claim is grounded in the regulations rather

than the statute itself.” (citation omitted)).

This leaves Saliba’s duty-of-fair-representation

claim. A union has a duty to fairly represent all

employees within the bargaining unit. Demetris v. TWU,

862 F.3d 799, 804-05 (9th Cir. 2017). A union breaches

this duty when it acts arbitrarily, discriminatorily, or in

bad faith. Id. at 805. This standard is highly deferential

to the union, especially when the challenged conduct

involves a union’s judgment. Id. This is so because

unions must balance the interests of individuals and of

the group as whole but pursuing every individual’s goals

would make it impossible to effectively pursue the

broader goals of the entire group. Therefore, absent

discrimination or bad faith, courts defer to a union’s

judgment because “[a union] must be able to focus on the

needs of its whole membership without undue fear of

lawsuits from individual members.” Herring v. Delta Air

Lines, Inc., 894 F.2d 1020, 1023 (9th Cir. 1990).

40a

Here, it is implausible that APA acted arbitrarily,

discriminatorily, or in bad faith when it refused to

opposed American’s mask policy or to advance Saliba’s

idiosyncratic view of FAA regulations. American’s mask

policy was generally consistent with those adopted by

the federal government, as well as many state and local

governments. It also was based on a scientific consensus

that wearing masks helps reduce the transmission of

COVTD-19. Saliba might disagree with the science, but

his disagreement does not make APA’s endorsement of

American’s mask policy arbitrary, discriminatory, or in

bad faith.

Likewise, it is implausible that APA’s refusal to

advance Saliba’s preferred defense at his disciplinary

hearing was arbitrary, discriminatory, or in bad faith.

The two merely had a disagreement over the proper

reading of the relevant FAA regulations. These types of

differences of opinion are insufficient to support a breach

of the duty of fair representation claims. See Conkle v.

Jeong, 73 F.3d 909, 915-16 (9th Cir. 1995). This is

especially true here, where Saliba’s interpretation of

FAR § 61.53 is idiosyncratic and almost certainly

incorrect. That regulation provides, in relevant part:

[N]o person who holds a medical certificate

issued under part 67 of this chapter may act as

pilot in command, or in any other capacity as a

required pilot flight crewmember, while that

person:

(1) Knows or has reason to know of any medical

condition that would make the person unable to

meet the requirements for the medical certificate

necessary for the pilot operation; or

(2) Is taking medication or receiving other

treatment for a medical condition that results in

the person being unable to meet the

41a

requirements for the medical certificate

necessary for the pilot operation.

14 C.F.R. § 61.53. Nothing in this section even arguably

gives Saliba the unilateral authority to decide whether

to comply with a mask mandate policy, especially when

that policy did not require him to wear a mask while

actually piloting the airplane from the flight deck.

Ill

III

III

For these reasons,

IT IS ORDERED that APA’s motion to dismiss (Doc. 9) is

GRANTED. The Clerk is directed to terminate this

action.

Dated this 27th day of March, 2023.

Douglas L. Rayes

United States District Judge

42a

PUBLIC LAW 85-726-AUG. 23, 1958

AN ACT

To continue the Civil Aeronautics Board as an agency of

the United States, to create a Federal Aviation Agency, to

provide for the regulation and promotion of civil aviation

in such manner as to best foster its development and

safety, and to provide for the safe and efficient use of the

airspace by both civil and military aircraft, and for other

purposes.

Be it enacted by the Senate and House of

Representatives of the United States of America in

Congress assembled, that this Act, divided into titles and

sections according to the following table of contents, may

be cited as the “Federal Aviation Act of 1958”

Title IV, Sec. 401 K

COMPLIANCE WITH LABOR LEGISTLATION

(K) (1) Every air carrier shall maintain rates of

compensation, maximum hours, and other working

conditions and relations of all of its pilots and copilots who

are engaged in interstate air transportation withing the

continental United States (not including Alaska) so as to

conform with decision numbers 83 made by the National

Labor Board on May 10, 1934, notwithstanding any

limitation therein as to the period of its effectiveness.

(2) Every air carrier shall maintain rates of compensation

for all of its pilots and copilots who are engaged in

overseas or foreign air transportation or air

APPENDDIX D

43a

transportation wholly within a Territory or possession of

the United States, the minimum of which shall be not less,

upon an annual basis, than the compensation required to

be paid under said decision 83 for comparable service to

pilots and copilots engaged in interstate air

transportation within the continental United States (not

including Alaska).

(3) Noting herein contained shall be construed as

restricting the right of any such pilots or copilots, or other

employees, of any such air carrier to obtain by collective

bargaining higher rates of compensation or more

favorable working conditions or relations.

(4) It shall be a condition upon the holding of a certificate

by any air carrier that such carrier shall comply with title

II of the Railway Labor Act, as amended.

(5) The term “pilot” as used in this subsection shall mean

an employee who is responsible for the m anipulation of or

who manipulates the flight controls of an aircraft while

under way including take-off and landing of such aircraft,

and the term “copilot” as use in this subsection shall mean

an employee any part of whose duty is to assist or relieve

the pilot in such manipulation, and who is properly

qualified to serve as, and hold a currently effective airman

certificate authorizing him to serve as such pilot or

copilot.

44a

RAILWAY LABOR ACT

AN ACT to provide for the prompt disposition of disputes

between carriers and their employees and for other

purposes

SEC. 2. The purposes of the Act are:

(1) To avoid any interruption to commerce or to the

operation of any carrier engaged therein.

(2) to forbid any limitation upon freedom of association

among employees or any denial, as a condition of

employment or otherwise, of the right of employees to join

a labor organization.

(3) to provide for the complete independence of carriers and

of employees in the matter of self-organization to carry out

the purposes of this Act.

(4) to provide for the prompt and orderly settlement of all

disputes concerning rates of pay, rules, or working

conditions.

(5) to provide for the prompt and orderly settlement of all

disputes growing out of grievances or out of the

interpretation or application of agreements covering rates

of pay, rules, or working conditions.

APPENDIX E

45a

SD1542-21-02 and SD1544-21-02

§F.

This SD exempts the following categories of persons from

wearing masks:

1. Children under the age of 2.

2. People with disabilities who cannot wear a mask,

or cannot safely wear a mask, because of the

disability as defined by the Americans with

Disabilities Act (42 U.S.C. 12101 et seq.). 7

3. People for whom wearing a mask would create a

risk to workplace health, safety, or job duty as

determined by the relevant workplace safety

guidelines or federal regulations.

APPENDIX F

FEDERAL AVAITION REGUALTIONS

§1.1 General definitions

Administrator.

means the Federal Aviation

Administrator or any person to whom he has delegated

his authority in the matter concerned.

§61.1 Applicability and definitions.

(a)(1) The requirements for issuing pilot, flight

instructor, and ground instructor certificates and

ratings; the conditions under which those certificates

and rating are necessary; and the privileges and

limitation of those certificates and ratings.

§67.1 Applicability.

46a

This part prescribes the medical standards and

certification procedures for issuing medical certificates

for airmen and for remaining eligible for a medical

certificate.

§91.1 Applicability.

(a) Except as provided in paragraphs (b), (c), (e), and

(f) of this section and §§91.701 and 91.703, this part

prescribes rules governing the operation of aircraft

within the United States, including the waters within

3 nautical miles of the U.S. coast.

§117.1 Applicability.

This part prescribes flight and duty limitations and

rest requirements for all flightcrew members and

certificate holders conducting passenger operations

under part 121 of this chapter.

§121.1 Applicability.

This part prescribes rules governing

The domestic, flag, and supplemental operations of

each person who holds or is required to hold an Air

Carrier Certificate or Operating Certificate under part

119 of this chapter.

(b) Each person employed or used by a certificate

holder conducting operations under this part including

maintenance, preventive maintenance, and alteration

of aircraft.

(c) Each person who applies for provisional approval of

an Advanced Qualification Program curriculum,

curriculum segment, or portion of a curriculum

segment under subpart Y of this part, and each person

employed or used by an air carrier or commercial

operator under this part to perform training,

qualification, or evaluation functions under an

47a

Advanced Qualification Program under subpart Y of

this part.

(d) Nonstop Commercial Air Tours conducted for

compensation or hire in accordance with § 119.1(e)(2)

of this chapter must comply with drug and alcohol

requirements

in §§

121,455. 121,457. 121,458 and 121.459. and with the

provisions of part 136. subpart A of this chapter by

September 11, 2007. An operator who does not hold an

air carrier certificate or an operating certificate is

permitted to use a person who is otherwise authorized

to perform aircraft maintenance or preventive

maintenance duties and who is not subject to anti-drug

and alcohol misuse prevention programs to perform—

(1) Aircraft maintenance or preventive maintenance

on the operator's aircraft if the operator would

otherwise be required to transport the aircraft more

than 50 nautical miles further than the repair point

closest to the operator's principal base of operations to

obtain these services; or

(2) Emergency repairs on the operator's aircraft if the

aircraft cannot be safely operated to a location where

an employee subject to FAA-approved programs can

perform the repairs.

(e) Each person who is on board an aircraft being

operated under this part.

(f) Each person who is an applicant for an Air Carrier

Certificate or an Operating Certificate under part 119

of this chapter, when conducting proving tests.

(g) This part also establishes requirements for

operators to take actions to support the continued

airworthiness of each aircraft.

APPENDIX G

48a

18 U.S. Code § 1001 - Statements or entries

generally

(a)Except as otherwise provided in this section, whoever,

in any matter within the jurisdiction of the executive,

legislative, or judicial branch of the Government of the

United States, knowingly and willfully—

(1)

falsifies, conceals, or covers up by any trick, scheme, or

device a material fact;

(2)

makes any materially false, fictitious, or fraudulent

statement or representation; or

(3)

makes or uses any false writing or document knowing

the same to contain any materially false, fictitious, or

fraudulent statement or entry;

shall be fined under this title, imprisoned not more than

5 years or, if the offense involves international or

domestic terrorism (as defined in section 23311.

imprisoned not more than 8 years, or both. If the matter

relates to an offense under chapter 109A, 109B, 110, or

117, or section 1591, then the term of imprisonment

imposed under this section shall be not more than 8

years.

APPENDIX H

49a

49 U.S.C. § 42112 - U.S. Code - Unannotated Title

49. Transportation § 42112. Labor requirements of

air carriers

(a) Definitions.--In this section-(1) “copilot” means an employee whose duties include

assisting or relieving the pilot in manipulating

anaircraft and who is qualified to serve as, and has in

effect an airman certificate authorizing the employee to

serve as, a copilot.

(2) “pilot.” means an employee who i,s~

(A) responsible for manipulating or who manipulates the

flight controls of an aircraft when under way, including

the landing and takeoff of an aircraft; and

(B) qualified to serve as, and has in effect an airman

certificate authorizing the employee to serve as, a pilot.

(b) Duties of air carriers.--An air carrier shall

(1) maintain rates of compensation, maximum hours,

and other working conditions and relations for its pilots

and copilots who are providing interstate air

transportation in the 48 contiguous States and the

District of Columbia to conform with decision number

83, May 10, 1934, National Labor Board,

notwithstanding any limitation in that decision on the

period of its effectiveness;

(2) maintain rates of compensation for its pilots and

copilots who are providing foreign air transportation or

air transportation only in one territory or possession of

the United States; and

50a

(3) comply with title II of the Railway Labor Act (45

U.S.C. 181 et sea.) as long as it holds its certificate.

(c) Minimum annual rate of compensation.--A

minimum annual rate under subsection (b)(2) of this

section may not be less than the annual rate required to

be paid for comparable service to a pilot or copilot under

subsection (b)(1) of this section.

(d) Collective bargaining.-This section does not

prevent pilots or copilots of an air carrier from obtaining

by collective bargaining higher rates of compensation or

more favorable working conditions or relations.

APPENDIX I

49 U.S.Code 114 (g)(2)

(g)National Emergency Responsibilities.—

(1)ln general.—Subject to the direction and control of

the Secretary of Homeland Security,

theAdministrator, during a national emergency, shall

have the following responsibilities:

(A)

To coordinate domestic transportation, including

aviation, rail, and other surface transportation, and

maritime transportation (including port security).

(B)

To coordinate and oversee the transportation-related

responsibilities of other departments and agencies of

51a

the Federal Government other than the Department of

Defense and the military departments.

(C)

To coordinate and provide notice to other departments

and agencies of the Federal Government, and

appropriate agencies of State and local governments,

including departments and agencies for transportation,

law enforcement, and border control, about threats to

transportation.

(D)

To carry out such other duties, and exercise such other

powers, relating to transportation during a national

emergency as the Secretary of Homeland Security shall

prescribe.

(2)Authority of other departments and agencies.—

The authority of the Administrator under this subsection

shall not supersede the authority of any other

department or agency of the Federal Government under

law with respect to transportation or transportationrelated matters, whether or not during a national

emergency.

APPENDIX J