Petition for Writ of Certiorari — Bahig Saliba, Petitioner v. American Airlines, Inc., et al.

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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.

No. 23-15249

D.C. No. 2:22-cv-00738-SPL

v.

MEMORANDUM*

AMERICAN AIRLINES, INC.; CHIP

LONG, Sr., VP of Flight; TIMOTHY

RAYNOR, Director of Flight; ALISON

DEVEREUX-NAUMANN, Chief Pilot,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

Steven Paul Logan, 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 action alleging various

federal and state law claims arising from his

employment. We have jurisdiction under 28 U.S.C. §

1291. We review de novo a dismissal

APPENDIX A

V

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* This disposition is not appropriate for publication and

is not precedent except as provided by Ninth Circuit

Rule 36-3.

** The panel unanimously concludes this case is suitable

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

under Federal Rule of 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 challenging American Airlines’ COVID-19

masking and vaccination policies because Saliba failed to

allege facts sufficient to show that American Airlines

violated a contractual obligation, acted under color of

state law, or violated any federal aviation law

enforceable by a private right of action. See Pasadena

Republican Club v. W. Justice Ctr., 985 F.3d 1161, 116667 (9thCir. 2021) (explaining that 42 U.S.C.

§19831iability 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)); G.S. 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’); Graham v. Asbury, 540

P.2d656, 657 (Ariz. 1975) (setting forth elements of

contract claim under Arizona law).

The district court properly dismissed Saliba’s

claim alleging a hostile work environment because

Saliba failed to allege facts sufficient to show that

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defendants took any action against him on the basis of

his national origin. See Kang v. U. Lim

Am., Inc., 296 F.3d 810, 817 (9th Cir. 2002) (setting forth

elements of hostile work environment claim based on

national origin).

We do not consider matters not specifically and

distinctly raised and argued in the opening brief, or

arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th

Cir. 2009).

AFFIRMED.

3 23-15249

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Bahig Saliba,

Plaintiff,

vs.

American Airlines Incorporated, et al.,

Defendants.

No. CV-22-00738-PHX-SPL

ORDER

Before the Court is Defendants’ Motion to Dismiss

(Doc. 43), in which they seek dismissal for lack of subject

matter jurisdiction, lack of personal jurisdiction, and

failure to state a claim. For the following reasons, the

Motion will be granted.

I. BACKGROUND

On May 2, 2022, pro se Plaintiff Bahig Saliba, a pilot for

Defendant American Airlines (“American”) since 1997,

initiated this action alleging various claims arising out of

American’s company mask policy. (Doc. 1). The

Complaint alleged claims against American; Chip Long,

American’s Senior Vice President of Flight; and Timothy

Raynor, American’s Director of Flight. (Doc. 1 at 1).

On September 12, 2022, the Court granted

Defendants’ Motion to Dismiss the Complaint. (Doc. 32).

The Court dismissed Plaintiffs claims against Defendant

APPENDIX B

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Long without prejudice for lack of personal jurisdiction;

dismissed Plaintiff s claims for violations of aviation law

and breach of the Joint Collective Bargaining Agreement

without prejudice and without leave to amend for lack of

subject matter jurisdiction; and dismissed Plaintiffs

hostile work environment, defamation, and § 1983

claims with leave to amend for failure to state a claim.

(Doc. 32 at 12). On September 30, 2022, the Court denied

Plaintiffs Motion for Reconsideration. (Doc. 34).

On October 10, 2022, Plaintiff filed his First

Amended Complaint, which purported to “preserve [ ] the

remaining claims in the original complaint.” (Doc. 35 at

1). On October 11, 2022, the Court issued an Order

advising that an amended complaint supersedes the

original complaint and setting a deadline if Plaintiff

elected to file another amended complaint. (Doc. 36). On

October 17, 2022, Plaintiff filed a Motion to Add New

Defendant (Doc. 37)—specifically, Alison DevereuxNaumann, American’s chief pilot for the Phoenix pilot

base—followed two days later by a Second Amended

Complaint that did not name Ms. Devereux-Naumann as

a defendant. (Doc. 38). On October 20, 2022, the Court

therefore denied the Motion to Add Defendant as moot

and set a deadline for Plaintiff to file another amended

complaint if he wished to do so. (Doc. 39).

On October 25, 2022, Plaintiff filed the operative

Third Amended Complaint (“TAC”) against Defendants

American, Long, Raynor, and Devereux-Naumann. (Doc.

40). Plaintiffs claims arise from his objections to two

American policies related to the COVID-19 pandemic.

First was a vaccination policy that was instituted

pursuant to a March 25, 2021 Letter of Agreement

between American and the Allied Pilots Association,

which is the union that represents American’s pilots.

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(Doc. 40 at 7). Plaintiff asserts that COVID-19

vaccinations “were incentivized by American and the

Plaintiff was coerced, under threat of termination, into

accepting medical treatment in violation of his

Contract.” (Doc. 40 at 7). Second was American’s face

mask policy. (Doc. 40 at 9). He asserts that “[f]acial

masking is a procedure that interferes with the

standards of issuance of [a Federal Aviation

Administration (“FAA”)] medical certificate,” which is

required by federal regulations for a pilot to fly. (Doc. 40

at 4, 9). Plaintiff refused to abide by the policy, and that

disagreement came to a head on December 6, 2021. (Doc.

40 at 9). Plaintiff arrived at the Spokane International

Airport for a flight to Dallas Fort

Worth, and police at the airport attempted to enforce the

then-existing federal mask mandate against Plaintiff.

(Doc. 40 at 18). The police reported the incident to

American, which initiated disciplinary proceedings

against Plaintiff. (Doc. 40 at 18-19).

On January 6, 2022, Defendant Raynor conducted

a disciplinary hearing and threatened Plaintiff with

consequences up to and including termination. (Doc. 40

at 11). On March 30, 2022, Defendant Long conducted an

appear hearing via videoconference. (Doc. 40 at 14-15).

Thereafter, Plaintiff expressed that he felt he was being

discriminated against. (Doc. 40 at 12). Later, Defendant

Devereux-Naumann demanded that Plaintiff undergo a

fitness-for-duty examination with a forensic psychiatrist

under threat of termination, without providing Plaintiff

a reason for the assessment. (Doc. 40 at 12-13). The

examination was rescheduled several times, and

Plaintiff reported sick on August 19, 2022, the day on

which it was ultimately set. (Doc. 40 at 13). Defendant

Devereux-Naumann issued an investigation letter for

Plaintiffs failure to appear for the appointment and

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placed him on unpaid leave. (Doc. 40 at 13). On

September 1, 2022, Plaintiff obtained a new FAA-issued

medical certificate. (Doc. 40 at 13). Plaintiff has been

removed from flight status since December 6, 2021 (Doc.

40 at 25).

The TAC alleges four causes of action: (1) breach

of contract; (2) hostile work environment; (3) violation of

§ 1983; and (4) violation of aviation law and related

regulations. (Doc. 40 at 2). On November 8, 2022,

Defendants filed the pending Motion to Dismiss, which

has been fully briefed. (Docs. 43, 45, 46).

II. LEGAL STANDARDS

a. Personal Jurisdiction

Federal Rule of Civil Procedure (“Rule”) 12(b)(2)

authorizes dismissal for lack of personal jurisdiction.

When a defendant moves to dismiss for lack of personal

jurisdiction, “the plaintiff bears the burden of

demonstrating that jurisdiction is appropriate.”

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797,

800 (9th Cir. 2004). When the motion is based on written

materials rather than an evidentiary hearing, as here,

the Court must determine “whether the plaintiffs

pleadings and affidavits make a prima facie showing of

personal jurisdiction.” Id. (internal quotation marks

omitted). Plaintiffs “cannot simply rest on the bare

allegations of [their] complaint,” but “uncontroverted

allegations in the complaint must be taken as true.” Id.

(internal quotation marks and citation omitted).

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b. Subject Matter Jurisdiction

Rule 12(b)(1) “allows litigants to seek the

dismissal of an action from federal court for lack of

subject matter jurisdiction.” Kinlichee v. United States,

929 F. Supp. 2d 951, 954 (D. Ariz. 2013) (internal

quotation marks omitted).

“A motion to dismiss for lack of subject matter

jurisdiction under Rule 12(b)(1) may attack either the

allegations of the complaint as insufficient to confer

upon the court subject matter jurisdiction, or the

existence of subject matter jurisdiction in fact.” Renteria

v. United States, 452 F. Supp. 2d 910, 919 (D. Ariz.

2006); see also Edison v. United States, 822 F.3d 510,

517 (9th Cir. 2016). “When the motion to dismiss attacks

the allegations of the complaint as insufficient to confer

subject matter jurisdiction, all allegations of material

fact are taken as true and construed in the light most

favorable to the nonmoving party.” Renteria, 452 F.

Supp. 2d at 919. “When the motion to dismiss is a factual

attack on subject matter jurisdiction, however, no

presumptive truthfulness attaches to the plaintiffs

allegations, and the existence of disputed material facts

will not preclude the trial court from evaluating for itself

the existence of subject matter jurisdiction in fact.” Id.

“A plaintiff has the burden of proving that jurisdiction

does in fact exist.” Id.

c. Failure to State a Claim

To survive a Rule 12(b)(6) motion to dismiss, “a

complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009) (internal quotation marks omitted). A claim is

facially plausible when it contains “factual content that

allows the court to draw the reasonable inference” that

the moving party is liable. Id. Factual allegations in the

complaint should be assumed true, and a court should

then “determine whether they plausibly give rise to an

entitlement to relief.” Id. at 679. Facts should be viewed

“in the

light most favorable to the non-moving party.” Faulkner

v. ADT Sec. Servs., Inc., 706 F.3d 1017, 1019 (9th Cir.

2013).

A pro se complaint must be “liberally construed” and

“held to less stringent standards than formal pleadings

drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94

(2007) (internal quotation marks omitted).

II. DISCUSSION

Plaintiffs TAC alleges four causes of action: (1)

breach of employment contract; (2) hostile work

environment; (3) violation of 42 U.S.C. § 1983 by

violating Plaintiffs Fourteenth Amendment rights; and

(4) violation of aviation law and regulations. (Doc. 40 at

2). Defendants argue that Plaintiff has failed to meet the

pleading standard for any of his claims, and Defendant

Long argues that the Court lacks personal jurisdiction

over him. The Court will begin by addressing personal

jurisdiction, then will address each claim in turn.

a. Personal Jurisdiction as to Defendant Long

When no federal statute is applicable to govern

personal jurisdiction, as is the case here, “the district

court applies the law of the state in which the district

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court sits.” Id. at 800. “Arizona’s long-arm jurisdictional

statute is co-extensive with federal due process

requirements; therefore, the analysis of personal

jurisdiction under Arizona law and federal due process is

the same.” Biliack v. Paul Revere Life Ins. Co., 265 F.

Supp. 3d 1003, 1007 (D. Ariz. 2017).

For a court to exercise personal jurisdiction, federal due

process requires that a defendant have “certain

minimum contacts” with the forum state “such that

maintenance of the suit does not offend traditional

notions of fair play and substantial justice.” Int’l Shoe

Co. v. Washington, 326 U.S. 310 (1945). Personal

jurisdiction can be general or specific. Biliack, 265 F.

Supp. 3d at 1007. A court may exercise general

jurisdiction “only when a defendant is essentially at

home in the State.” Ford Motor Co. v. Mont. Eighth Jud.

Dist. Ct., 141 S. Ct. 1017, 1024 (2021) (internal

quotation marks omitted). That is plainly inapplicable

here, where Defendant Long is alleged only to have

responded to an email from and conducted a

videoconference disciplinary appeal hearing for Plaintiff,

who was located in Arizona.

The Ninth Circuit applies a three-prong test for specific

personal jurisdiction:

(1) The non-resident defendant must

purposefully direct his activities or consummate

some transaction with the forum or resident

thereof; or perform some act by which he

purposefully avails himself of the privilege of

conducting activities in the forum, thereby

invoking the benefits and protections of its laws;

(2) the claim must be one which arises out of or

relates to the defendant’s forum-related

activities; and

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(3) the exercise of jurisdiction must comport with

fair play and substantial justice, i.e. it must be

reasonable.

Schwarzenegger, 374 F.3d at 802. Plaintiff bears the

burden of establishing the first two prongs. Id. If

Plaintiff satisfies them, the burden shifts to Defendant

“to present a compelling case that the exercise of

jurisdiction would not be reasonable.” Id. (internal

quotation marks omitted).

Regarding the first prong, Plaintiff argues that

Defendant Long purposefully directed his activity at

Arizona. “Purposeful direction requires that the

defendant have (1) committed an intentional act, (2)

expressly aimed at the forum state, (3) causing harm

that the defendant knows is likely to be suffered in the

forum state.” Morrill v. Scott Fin. Corp., 873 F.3d 1136,

1142 (9th Cir. 2017) (internal quotation marks and

alteration omitted). “An intentional act is one denoting

an external manifestation of the actor’s will[,] not

including any of its results, even the most direct,

immediate, and intended.” Id. (internal quotation marks

and alterations omitted). When considering whether a

defendant’s conduct is expressly aimed at the forum

state, the Court must look at “contacts that the

defendant himself creates with the forum” and “the

defendant’s contacts with the forum State itself, not the

defendant’s contacts with persons who reside there.” Id.

at 1143 (internal quotation marks omitted). “[Rjandom,

fortuitous, or attenuated contacts are insufficient to

create the requisite connection with the forum.” Id. at

1142 (internal quotation marks omitted).

As noted, the only allegations regarding

Defendant Long’s contacts with Arizona are that (1) he

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responded to an email from Plaintiff, and (2) he held an

appeal hearing for Plaintiff using videoconference. (Doc.

40 at 14-16). A defendant’s injurious communications

with a plaintiff known to reside in the forum state give

rise to personal jurisdiction even if the defendant himself

was out of state. For example, in Atkins v. Calypso

Systems, Inc., the plaintiff alleged that a defendant

“intentionally called and emailed a person in Arizona,

and those communications caused injury.” No. CV-1402706-PHX-NVW, 2015 WL 5856881, at *7 (D. Ariz. Oct.

8, 2015). The Court found those allegations sufficient for

specific personal

jurisdiction. Likewise, here, Plaintiff alleges that

Defendant Long intentionally emailed and held a

videoconference with Plaintiff, a known Arizona

resident, and that those communications caused injury.

Plaintiff has therefore satisfied the first two prongs of

the personal jurisdiction test, and Defendant Long

makes no argument that the exercise of jurisdiction

would be unreasonable. Accordingly, the Court has

personal jurisdiction over Defendant Long.

b. Breach of Contract Claim

Plaintiffs breach of contract claim alleges that

“Defendants created and implemented a mandatory

health-related company policy . . . that directly violated

the employment Contract between Plaintiff and

Defendant American that the Plaintiff rejected.” (Doc. 40

at 2). To state a breach of contract claim under Arizona

law, “a plaintiff must allege that (1) a contract existed,

(2) it was breached, and (3) the breach resulted in

damages.” Steinberger v. McVey ex rel. County of

Maricopa, 318 P.3d 419, 435 (Ariz. Ct. App. 2014).

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Defendants argue that Plaintiff has failed to plead either

of the first two elements.

The TAC alleges that Plaintiff has an employment

contract with American, pointing to certain documents

attached as Exhibit A “in support of Plaintiffs

employment contract.” (Doc. 40 at 3). Those documents

include Plaintiff s employment application, a pre­

employment notification, notes from his job interview,

and excerpts of an employee handbook and flight

operations manuals. (Doc. 40-2). Pre-hiring documents

certainly do not establish the existence of an

employment contract, but employee handbooks or

manuals can create contractual promises, depending on

the circumstances.

See Bollfrass v. City of Phoenix, — F. Supp. 3d —, 2022

WL 4290591, at *8-9 (D. Ariz. Sept. 16, 2022). The Court

assumes without deciding that Plaintiff has sufficiently

alleged that the attached employee handbook and flight

operations manuals are contractual, because Plaintiffs

failure to allege a breach of any of the terms contained

therein—or elsewhere—is dispositive.

The TAC alleges that American’s mask policy

breached terms in the flight operations manual

requiring pilots “to maintain a current medical

certificate appropriate for the crew position he/she

currently holds” and to “bar themselves from flight duty

and advise the Chief Pilot’s office immediately . . . any

time they know themselves to be unable to meet the

medical or physical standards required by regulation or

common sense for their crew position.” (Doc. 40-2 at 11;

Doc. 40 at 3). These terms plainly impose obligations on

Plaintiff, not Defendants. American’s implementation of

a mask policy simply does not violate these terms.

Plaintiffs arguments to the contrary are

unavailing. He argues that “[a]ny imposition by

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American of any medical procedure is ... a violation of

the very term of the employment contract.” (Doc. 45 at

7). This argument is utterly baseless. The terms at issue

merely bar Plaintiff from flying if he lacks the

appropriate certification or is not in the requisite

condition to do so. They do not prevent American from

imposing a policy that Plaintiff personally believes

affects his certification or ability to meet the medical or

physical standards. Plaintiff also misses the point with

his argument that his “pilot and medical certificates are

contractual terms of the employment contract benefiting

American, without either one there is no contract to

provide air transportation.” (Doc. 45 at 8). Of course,

Plaintiff cannot fly without the proper certificates,

pursuant to both American policies and federal

regulations. But Plaintiff has not established any

contractual term that would prevent American from

imposing additional requirements, such as its mask and

vaccination policies, even if Plaintiff believed those

requirements would affect his certificates. Thus, the

TAG fails to allege any breach of contract.

Ill

c. Hostile Work Environment Claim

Plaintiffs hostile work environment claim alleges

that “Defendants created and continue to create a hostile

work environment and wrongfully invoked a disciplinary

process reserved for disputes rooted in terms and

conditions agreed to in Collective Bargaining

Agreements.”4 (Doc. 40 at 2). Title VII prohibits

4 To the extent Plaintiff attempts to state a claim for

breach of the Joint Collective Bargaining Agreement,

that claim was already dismissed without leave to

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discrimination “against any individual with respect to

his compensation, terms, conditions or privileges of

employment because of his race, color, religion, sex, or

national origin.” Vasquez v. County of Los Angeles, 349

F.3d 634, 642 (9th Cir. 2003). To state a hostile work

environment claim based on national origin, a plaintiff

must allege that “(1) [he] was subjected to verbal or

physical conduct of a harassing nature that was based on

[his] national origin . . . , (2) the conduct was unwelcome,

and (3) the conduct was sufficiently severe or pervasive

to alter the conditions of the plaintiffs employment and

create an abusive working environment,” Nagar v.

Found. Health Sys., Inc., 57 F. App’x 304, 306 (9th Cir.

2003). Moreover, to establish subject matter jurisdiction

over a Title VII claim, however, a plaintiff must exhaust

his administrative remedies “by filing a timely charge

with the [Equal Employment Opportunity Commission

(“EEOC”)], or the appropriate state agency.” B.K.B. v.

Maui Police Dep’t, 276 F.3d 1091, 1099 (9th Cir. 2002)

(citing 42 U.S.C. § 2000e-5(b)). Defendants argue that

Plaintiffs hostile work environment must be dismissed

both because he failed to exhaust his administrative

remedies and he fails to state a claim,

d. Section 1983 Claim e. Aviation Law Claim

First, it is true that the TAC does not plead

exhaustion, as it makes no mention of an EEOC charge.

This is despite the fact that the Court previously

dismissed the hostile work environment claim in

Plaintiffs Complaint based on the exhaustion

amend for lack of subject matter jurisdiction due to

preemption by the Railway Labor Act. (Doc. 32 at 9-10).

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requirement. (Doc. 32 at 8). Still, “[t]he Supreme Court

has held that failure to exhaust is an affirmative defense

that does not require a Plaintiff to specifically plead or

demonstrate

exhaustion in the complaint.” Cabrera v. Serv. Emps.

Int’l Union, No. 2:18-cv-00304-RFB-DJA, 2020 WL

2559385, at *5 (D. Nev. May 19, 2020) (citing Jones v.

Bock, 549 U.S. 199, 216 (2007)). Attached to Plaintiffs

Response to the Motion to Dismiss is a Notice of Right to

Sue letter issued by the EEOC to Plaintiff on November

30, 2022, so the Court will not dismiss the hostile work

environment claim for failure to exhaust. (Doc. 45-3).

Moving to the merits, Plaintiff fails to state a

claim because he does not allege that he experienced

harassing conduct based on his national origin. In fact,

the only reference to Plaintiff s national origin in the

TAC is the allegation that “the police report that was

offered to [American] by the Spokane Airport police . . .

referenced the plaintiff as a Middle Eastern individual

under race and Plaintiff contends that racial profiling by

the police was passed on to [American].” (Doc. 40 at 19).

But there is no basis on which to infer that any

Defendant took any action against Plaintiff because of

his national origin. Although Plaintiff alleges that he

“felt he was being discriminated against,” he provides no

basis for that belief, and belief alone is insufficient to

state a plausible claim for relief. (Doc. 40 at 12); see

Ashcroft, 556 U.S. at 678 (stating that a complaint must

plead “factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged,” not “naked assertions devoid of

further factual enhancement” (internal quotation marks

omitted)).

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Instead, in the “hostile work environment” section

of the TAC, Plaintiff specifically alleges that he “feels he

is being targeted for refusing to accept an amendment to

his employment contract.” (Doc. 40 at 10; see also Doc.

40 at 14 (“Plaintiff is being targeted by the Defendants

and he can only conclude that every one of the

Defendants[’] actions is calculated to exert maximum

pressure to force the plaintiff into submission and

surrendering his authority over his medical

Certificate.”)). The facts alleged in the TAC support an

inference that Plaintiff was disciplined due to his refusal

to comply with American’s mask policy, which is not, of

course, a protected characteristic under Title VII. This

further detracts from Plaintiffs bare assertion of

national-origin discrimination. See Starr v. Baca, 652

F.3d 1202, 1216 (9th Cir. 2011) (“If there are two

alternative explanations . . . [p]laintiffs complaint may

be dismissed only when defendant’s plausible alternative

explanation is so convincing that plaintiffs explanation

is implausible.”). Given the lack of facts suggesting

national origin discrimination and Plaintiff s own

allegations about why he was disciplined, Plaintiff has

failed to plead a plausible hostile work environment

claim.

d. Section 1983 Claim

Plaintiffs § 1983 claim alleges that “Defendants

became State actors by their actions following the event

of December 6, 2021, violating Plaintiffs constitutional

rights, namely his Fourteenth Amendment rights.” (Doc.

40 at 2). “To state a claim under § 1983, a plaintiff must

allege two essential elements: (1) that a right secured by

the Constitution or laws of the United States was

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violated, and (2) that the alleged violation was

committed by a person acting under the color of State

law.” Long v. County of Los Angeles, 442 F.3d 1178, 1185

(9th Cir. 2006). Defendants argue that this claim must

be dismissed because they are not state actors. Indeed,

the “defendants as state actors” section of the TAC is

largely taken word-for-word from Plaintiffs Response to

Defendants’ first Motion to Dismiss. (Compare Doc. 40 at

18-20 with Doc. 30 at 9-11). The Court has already

rejected those arguments in its September 12, 2022

Order, but because there are at least some additional

allegations in the TAC, the Court will address them

anew. (Doc. 32 at 10-12).

Plaintiff alleges that “[o]n December 6, 2021, the

Defendants^] interests and that of the police officers at

the Spokane International Airport aligned, that is

enforce the facial masking on Plaintiff at any cost and

protect the travel service provided by the airline” and

that “the police were in violation of the Plaintiff]”s]

Fourteenth Amendment rights and . . . the violation

continued by the Defendants.” (Doc. 40 at 18-19). Courts

use four tests to identify state action: “(1) public

function; (2) joint action; (3) governmental compulsion or

coercion; and (4) governmental nexus.” Kirtley v. Rainey,

326 F.3d 1088, 1092 (9th Cir. 2003) (internal quotation

marks omitted).

First, the public function test applies only when a

private entity is “endowed by the State with powers or

functions” that are “both traditionally and exclusively

governmental.” Id. at 1093 (internal quotation marks

omitted). The TAC alleges that “police power was

delegated to the defendants and only the defendants

could have continued targeted police action against the

plaintiff on [American] property.” (Doc. 40). But Plaintiff

does not allege any specific government power that was

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delegated; rather, the allegations make clear that

American was enforcing its own mask policy using its

own disciplinary procedures. As the Court stated in its

previous Order, “[a] private employer’s disciplinary

proceedings against its employee are certainly not a

traditional and exclusive government function.” (Doc. 32

at 11).

Second, the joint action test applies “when the

state knowingly accepts the benefits derived from

unconstitutional behavior.” Kirtley, 326 F.3d at 1093

(internal quotation marks omitted). The TAC alleges

that “the Defendants jointly with the Spokane police

carried on what the police had started, a benefit the

police were intending on receiving, lawfully or

unlawfully is immaterial here, they intended on forcing

the Plaintiff to use facial masking.” (Doc. 40 at 19). In

short, Plaintiff argues that the joint action test applies

because American’s actions were designed to make

Plaintiff wear a mask-—which, at the time, was required

by federal law (see Doc. 40 at 17)—and the Spokane

Police accepted that benefit. But the TAC makes no

effort to explain how American’s efforts use of its

disciplinary process in response to Plaintiffs

noncompliance with company policy and federal law

amounted to unconstitutional behavior with benefits

knowingly accepted by the Spokane Police.

Third, “[t]he compulsion test considers whether

the coercive influence or ‘significant encouragement’ of

the state effectively converts a private action into a

government action.” Id. at 1094. The TAC alleges that

“[t]he Police compelled the Defendants to pursue the

Plaintiff’ by notifying American of their encounter on

December 6, 2021 and following up with a manager.

, (Doc. 40 at 19), Specifically, Plaintiff cites to the police

report and an email from a police officer providing

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information about how to request public records and

body camera footage “if investigated” and offering to

provide additional information. (Doc. 40-8). The Court

finds no authority suggesting that the mere provision of

factual information—or any other contact alleged

between the police and American in the TAC—amounts

to coercion or significant encouragement. Nothing in the

TAC leads to an inference that American’s decision to

pursue disciplinary proceedings against Plaintiff was

influenced by the government rather than by

independent, internal decision-making.

Closely related is the nexus test, which “asks

whether there is such a close nexus between the State

and the challenged action that the seemingly private

behavior may be fairly treated as that of the State itself.”

Kirtley, 326 F.3d at 1094-95 (internal quotation marks

omitted). Again, given the relatively minimal contact

between the airport police and American, there is no

such nexus. Because Plaintiff has failed to plead that

Defendants were acting under color of state law, his §

1983 claim must be dismissed.

e. Aviation Law Claim

Finally, the TAC alleges that Defendants violated

aviation law and regulations. The Court previously

dismissed this claim without leave to amend, finding

that there is no private right of action under the Federal

Aviation Act or its associated regulations. (Doc. 32 at 7—

8). The Court reaffirmed that finding in its Order

denying reconsideration. (Doc. 34 at 4-5). There is no

need for the Court to repeat itself a third time; Plaintiffs

aviation law claims must be dismissed.

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III. CONCLUSION

“A district court should not dismiss a pro se complaint

without leave to amend unless it is absolutely clear that

the deficiencies of the complaint could not be cured by

amendment.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th

Cir. 2012) (internal quotation marks omitted). Here,

Plaintiff has had ample opportunity to amend his

complaint and has repeatedly failed to state a plausible

claim for the same or similar reasons. Thus, the Court

finds that the deficiencies of the TAC cannot be cured,

and this case will be dismissed with prejudice. See DCD

Programs, Ltd. v. Leighton, 833 F.2d 183, 186 n.3

(9th Cir. 1987).

IT IS THEREFORE ORDERED that Defendants’

Motion to Dismiss (Doc. 43) is granted and this case is

dismissed with prejudice.

IT IS FURTHER ORDERED that the Clerk of

Court shall enter judgment accordingly and terminate

this action.

Dated this 27th day of January, 2023.

Honorable Steven P. Logan

United States District Judge

49a

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

transportation wholly within a Territory or possession of

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

APENDIX C

50a

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 manipulation 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.

51a

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 D

52a

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.).^

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 E

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.

53a

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

54a

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

inH

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 F

55a

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 2331),

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 G

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 an

56a

aircraft 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 is-(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 earriers.-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

(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

57a

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 H

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

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,

f

58a

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 I