Petition for Writ of Certiorari — Aaron Abadi, Petitioner v. Anthony Stephen Fauci, et al.
Supreme Court briefSep 27, 2025
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No.
in the
Supreme Court of tlje ®niteb Stated
Aaron Abadi
Petitioner,
v.
Anthony Stephen Fauci et al
Respondents.
APPENDIX
TO PETITION FOR
WRIT OF CERTIORARI
To The United States Court of Appeals For
The Second Circuit
Filed by:
Aaron Abadi
Petitioner, pro se
82 Nassau Street Apt 140
New York, NY 10038
Tel: 516-639-4100
Email: abadi.rne@gmail.com
APPENDIX TABLE OF CONTENTS
Appendix A - Abadi v. American Airlines District
Court Decision with regards to Airline Defendants
(SDNY).............................................................................. la
Appendix B - Abadi v. American Airlines District
Court Decision with regards to Federal Defendants
(SDNY)........................................................................... 166a
Appendix C - Circuit Court Dismissal (2nd Circuit)
207a
Appendix D - Circuit Court Denial of Rehearing En
Banc.............................................................................. 222a
Appendix E - ACAA - 14 CFR 382 (Relevant
Sections)........................................................................223a
Doc. 346
UNITED STATES
DISTRICT COURT FOR
THE SOUTHERN
DISTRICT OF NEW YORK
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 3/29/2024
X
........
AARON ABADI
23-CV-4033
(LJL)
OPINION
AND ORDER
Plaintiff,
-vAMERICAN AIRLINES,
INC., et al.
Defendants.
LEWIS J. LIMAN, United States District Judge:
This Opinion and Order resolves three motions
pending before the Court: (1) the motion of
Defendants American Airlines, Inc, Delta Airlines,
Inc, JetBlue Airways Corp, Southwest Airlines Co,
United Airlines, Inc, (the “Domestic Airlines”), and
individual employees or agents of the Domestic
Airlines Robert Land, Roy Goldberg, Debbie
1a
Castleton, and Nathalie Simon (the “Domestic
Individuals”) to dismiss the Complaint for lack of
subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1) and for failure to state a claim for
relief under Rule 12(b)(6), Dkt. Nos. 121, 197; (2) the
motion of Defendant Silver Airways, LLC (“Silver,”
and, together with the Domestic Airlines and
Domestic Individuals, “Domestic Defendants”), to
dismiss the Complaint for failure to comply with
federal pleading standards under Federal Rule of
Civil Procedure 8 and for failure to state a claim for
relief pursuant to Rule 12(b)(6); (3) the motion of
Defendants Concesionaria Vuela Compania de
Aviacion, Royal Air Maroc, Aerovias de Mexico S.A. de
C.V., Transportes Aereos Portugueses, S.A., Spirit
Airlines, Inc., Avianca S.A., Singapore Airlines,
LATAM Airlines Group S.A., Iberia Lineas Aereas de
Espana, LOT Polish Airlines, S.A., British Airways
P.L.C. (the “Foreign Airlines”), and ndividual
employee Matthew Roberts (together with the Foreign
Airlines, the “Foreign Defendants,” and collectively,
with the Domestic Defendants and Silver, the
“Moving Defendants”)1 to dismiss the Complaint for,
inter alia, failure to state a claim for relief, Dkt. No.
179. For the following reasons, the motions are
granted.
1 Although Plaintiff alleges that Spirit Airlines is incorporated in
Delaware and headquartered in Florida, Compl. 39, because Spirit
joins the motion to dismiss of several foreign airlines, the Court
includes Spirit when it refers the motion to dismiss by the Foreign
Defendants for ease of reference.
2a
BACKGROUND
The well-pleaded allegations of Plaintiffs Complaint,
see Dkt. Nos. 3, 3-1, 3-2 (“Compl.”), are assumed to be
true for purposes of these motions. In light of
Plaintiffs pro se status, the Court construes the
Complaint liberally and broadly, and interprets it to
state the strongest claims it suggests. See, e.g.,
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
475 (2d Cir. 2006).
I.
The Relevant Parties
Plaintiff Aaron Abadi (“Plaintiff’ or “Abadi”),
proceeding pro se, is a resident and citizen of New
York. Compl.
1. He has a sensory processing
disorder that prevents him from wearing a mask. Id.
U 141. He “travels a whole lot,” id. 807, both for his
work and for pleasure, id. TH 174, 806-807. Plaintiff
works in the “waste management and energy
business” and is the owner and Chief Executive
Officer (“CEO”) of the National Environmental Group
(“NEG”), and “needs to travel for his income.” Id.
174, 813, 823. Plaintiff also “loves to travel for
pleasure.” Id. 174.
The Complaint names sixty-one defendants. The
defendants include forty-six airlines (“Airline
Defendants”), 2 several employees of airlines, two
attorneys who have represented airlines, two medical
2 On February 29, 2024, Plaintiff moved to drop his claims against
one airline, FAST Colombia S.A.S. doing business as Viva Air
Colombia, due to the airline’s bankruptcy proceedings. Dkt. No.
335. The Court granted Plaintiff’s request and dismissed
Plaintiff’s claims against that airline. Dkt. No. 336.
3a
advisory groups (MedAire, Inc., and the Center for
Emergency Medicine of Western Pennsylvania, doing
business as “STAT-MD”), and several “Government
Defendants,” including the National Institutes of
Health (“NIH”), the Centers for Disease Control and
Prevention (“CDC”), the United States Department of
Health & Human Services (“HHS”), certain federal
employees, and the President of the United States,3
(collectively, “Defendants”). Id.
2-62. As noted,
this Opinion addresses three motions to dismiss made
by twenty-five of the Defendants.
Domestic Defendants are five airlines and four
individuals, all based in the United States. American
Airlines, Inc. (“American”), Delta Airlines, Inc.
(“Delta”), JetBlue Airways Corp. (“JetBlue”),
Southwest Airlines Co. (“Southwest”), and United
Airlines, Inc. (“United”) are airlines based in the
United States that are alleged to fly through or have
operations in Texas, where the Complaint was first
filed. Id.
2, 15, 24, 38, 45. Roy Goldberg
(“Goldberg”) is an attorney who represents American.
Id. 49. Nathalie Simon (“Simon”) works in Delta’s
Customer Care Department. Id. 51. Robert Land
(“Land”) is the Senior Vice President Government
Affairs and Associate General Counsel of JetBlue. Id.
54.
Debbie Castleton (“Castleton”) works in
customer support for JetBlue. Id. 55.
Foreign Defendants are eleven airlines and one
individual.
Concesionaria Vuela Compania de
Aviacion, S.A.P.I. de C.V. (“Volaris”), Royal Air Maroc,
3 The Court dismissed Plaintiff’s claims against President Biden as
barred by absolute immunity. See Dkt. No. 17.
4a
Ltd. (“Maroc”), Aerovias de Mexico S.A. de C.V. doing
business as Aeromexico Airlines (“Aeromexico”),
Transportes Aereos Portugueses, S.A. (“TAP”),
Avianca S.A. (“Avianca”), Singapore Airlines (“SIA”),
LATAM Airlines Group S.A. (“Latam”), Iberia Lineas
Aereas de Espana, S.A. Operadora, Socieded
Unipoersonal (“Iberia Air”), Lot Polish Airlines, S.A.
(“LOT Air”), and British Airways P.L.C. (“British
Air”), are foreign airlines that fly to and from the
United States. Id.
4, 7, 12, 23, 28, 29, 34, 37, 43.
Spirit Airlines, Inc. (“Spirit”) is a U.S. based airline
but joins the motion to dismiss of the above,
39,
Matthew Roberts (“Roberts”), a British subject, is the
airport manager for British Air at the Washington
Dulles Airport and the Baltimore International
Airport, id. 48.
II. The Federal Government’s Travel Policies in
Response to COVID-19
“As the world well knows,” the COVID-19 pandemic
reached the United States in early 2020. Goldberg v.
Pace Univ., 88 F.4th 204, 208 (2d Cir. 2023). The virus
caused “most of the planet to get sick, and caused the
death [sic] of over 6 million people.” Compl. 92.
On January 21, 2021, the day after his inauguration,
President Biden issued Executive Order 13998,
Promoting COVID-19 Safety in Domestic and
International Travel, 86 Fed. Reg. 7205 (Jan. 21,
2021), in order to slow the spread of the COVID-19
virus. Compl. 95; see Dkt. No. 3-6, (the “Executive
Order”). The Executive Order expressed the following
policy of the United States:
5a
The Centers for Disease Control and Prevention
(CDC), the Surgeon General, and the National
Institutes of Health have concluded that mask
wearing, physical distancing,
appropriate
ventilation, and timely testing can mitigate the
risk of travelers
spreading
COVID-19.
Accordingly, to save lives and allow all Americans,
including the millions of people employed in the
transportation industry, to travel and work safely,
it is the policy of [the Biden] Administration to
implement these public health measures
consistent with CDC guidelines on public modes of
transportation and at ports of entry to the United
States. Executive Order § 1.
The Executive Order directs the Secretaries of Labor,
HHS, Transportation (including through the
Administrator
of
the
Federal
Aviation
Administration), Homeland Security (including
through the Administrator of the Transportation
Security Administration (“TSA”)), and the heads of
other executive departments and agencies to
“immediately take action, to the extent appropriate
and consistent with applicable law, to require masks
to be worn in compliance with CDC guidelines in or
on,” among other places, airports and commercial
aircrafts. Id. § 2(a).
Pursuant to the Executive Order, the CDC issued
rules regulating masking. On or about January 29,
2021, the CDC issued an order, Dkt. No. 3-7 (the “CDC
Order” or “Mask Mandate”) directing conveyance
operators, including airlines, to use best efforts to
ensure that any person on the conveyance wears a
6a
mask when boarding, disembarking, and for the
duration of travel. Compl. 99.
In pertinent part, the CDC Order states:
(1) Persons must wear masks over the mouth and
nose when traveling on conveyances into and
within the United States. Persons must also wear
masks at transportation hubs as defined in this
Order.
(2) A conveyance operator transporting persons
into and within the United States must require all
persons onboard to wear masks for the duration of
travel.
(3) A conveyance operators [sic] operating a
conveyance arriving at or departing from a U.S.
port of entry must require all persons on board to
wear masks for the duration of travel as a
condition of controlled free pratique.4
(4) Conveyance operators must use best efforts to
ensure that any person on the conveyance wears a
mask when boarding, disembarking, and for the
4 “Pratique” refers to the official permission granted by
authorities to allow a ship to have dealings with a port,
given after a showing of a clean bill of health, or, otherwise,
a period of quarantine. See, e.g., Pan Cargo Shipping Corp,
v. United States, 234 F. Supp. 623, 629 (S.D.N.Y. 1964),
aff’d, 373 F.2d 525 (2d Cir. 1967); see also Am. S.S. Owners
Mut. Prot. &Indem. Ass’n Inc. v. Lafarge N. Am., Inc., 2008
WL 449353, at *4 n.2 (S.D.N.Y. Sept. 29, 2008).
7a
duration of travel. CDC Order at 1—2; see also id.
at 9.
The CDC Order defines “conveyance as including,
among other means of transport, aircrafts, and
defines “conveyance operator” broadly to include any
“individual or organization causing or authorizing the
operation of a conveyance.” Id. at 2. Best efforts
include, among other measures:
• boarding only those persons who wear masks;
• instructing persons that Federal law requires
wearing a mask on the conveyance and failure to
comply constitutes a violation of Federal law;
• monitoring persons onboard the conveyance for
anyone who is not wearing a mask and seeking
compliance from such persons;
• at the earliest opportunity, disembarking any
person who refuses to comply; and
• providing persons with prominent and
adequate notice to facilitate awareness and
compliance of the requirement of this Order to
wear a mask; best practices may include, if
feasible, advance notification on digital platforms,
such as on apps, websites, or email; posted signage
in multiple languages with illustrations; printing
the requirement on transit tickets; or other
methods as appropriate. Id. at 1-2.
With respect to foreign air carriers, the CDC Order
provided:
8a
Conveyance operators must also require all
persons to wear masks while boarding and for the
duration of their travel on board conveyances
departing from the United States until the
conveyances arrives at the foreign destination, if
at any time any of the persons onboard
(passengers, crew, or conveyance operators) will
return to the United States while this Order
remains in effect. Id. at 9.
The CDC Order exempted several categories of
persons from its terms, including “a person with a
disability who cannot wear a mask, or cannot safely
wear a mask, because of the disability as defined by
the Americans with Disabilities Act.” Id. at 5; see
Compl. H 100. Footnote 8 of the CDC Order provided
as follows:
Operators of conveyances or transportation hubs
may impose requirements, or conditions for
carriage, on persons requesting an exemption
from the requirement to wear a mask, including
medical consultation by a third party, medical
documentation by a licensed medical provider,
and/or other information as determined by the
operator, as well as require evidence that the
person does not have COVID-19 such as a negative
result from a SARS-CoV-2 viral test or
documentation of recovery from COVID-19. CDC
definitions for SARS-CoV-2 viral test and
documentation of recovery are available in the
Frequently
Asked
Questions
as
https://www.cdc.gov/coronavirus/2019ncov/travelers/testinginternational-airtravelers.html.
Operators may also impose
9a
additional protective measures that improve the
ability of a person eligible for exemption to
maintain social distance (separation from others
by 6 feet), such as scheduling travel at less
crowded times or on less crowded conveyances, or
seating or otherwise situating the individual in a
less crowded section of the conveyance or
transportation hub.
Operators may further
require that persons seeking exemption from the
requirements to wear a mask request an
accommodation in advance. CDC Order at 4 n.8.
It also exempts children under the age of two years
and those “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.” Id. at 5. The CDC
Order further directs that the mask requirement shall
not apply under a number of circumstances, including
while eating, drinking, or taking medication, for brief
periods; when communicating with a person who is
hearing impaired and the ability to see the mouth is
essential for communication; and when necessary to
temporarily remove the mask to verify one’s identity.
Id. at 4.
Included in the Order is a declaration of intent from
the Director of the Division of Global Migration and
Quarantine of the CDC, stating that he had
determined that the Mask Mandate was “reasonably
necessary to prevent the further introduction,
transmission, or spread of COVID-19 into the United
States and among the states and territories.” Id. at 8.
The CDC Order recites that as of January 27, 2021,
there had been over ninety-nine million confirmed
10a
cases of COVID-19 globally, resulting in more than
two million deaths; that the virus spreads very easily
and sustainably between people who are in close
contact with one another mainly through respiratory
droplets; that air travel increases a person’s risk of
getting and spreading COVID-19; and that
appropriately worn masks reduce the spread of
COVID-19 especially from those persons who are presymptomatic or asymptomatic. Id. at 5—8.
These findings are disputed by Plaintiff, however, who
alleges that “all of the studies [and] Dr. Fauci’s own
public statements .. . confirm [] that masks are almost
useless in the protection against Covid-19.” Compl.
96; see also id. H 109-112, 116, 118, 122.
On February 5, 2021, the Office of Aviation Consumer
Protection (“OACP”), a subdivision of the Department
of Transportation (“DOT”), issued a Notice of
Enforcement Policy: Accommodation by Carriers of
Persons with Disabilities Who Are Unable to Wear
Masks While on Commercial Aircraft (“DOT
Enforcement Notice”), which clarified the CDC Order,
and reminded airlines of their obligations to
accommodate passengers with disabilities. The DOT
Enforcement Notice stated, inter alia, that,
To ensure that only qualified persons under the
exemption would be able to travel without a mask,
the CDC Order permits operators of
transportation conveyances, such as airlines, to
impose requirements, or conditions for carriage,
on persons requesting an exemption, including
requiring a person seeking an exemption to
request an accommodation in advance, submit to
medical consultation by a third party, provide
11a
medical documentation by a licensed medical
provider, and/or provide other information as
determined by the operator. The CDC Order also
permits operators to require protective measures,
such as a negative result from a SARS-CoV-2 viral
test or documentation of recovery from COVID-19
or seating or otherwise situating the individual in
a less crowded section of the conveyance, e.g.,
aircraft. Dkt. No. 3-20 at 3.5
Although the DOT Enforcement Notice expressly
included airlines, is also reiterated that:
The CDC Order permits airlines to impose
requirements or conditions for carriage on a
person requesting an exemption, including
requiring a person seeking an exemption to
request an accommodation in advance, submit to
medical consultation by a third party, provide
medical documentation by a licensed medical
provider, and/or provide other information as
determined by the airline. Id. at 3—4.
5 Although Plaintiff does not append the DOT Enforcement
Notice to his Complaint because Plaintiffs allegations are
based on the purported unlawfulness of the Airline
Defendants’ mask exemption policies, and many of the
communications between Plaintiff and the Airline
Defendants appended to the Complaint expressly reference
the DOT Enforcement Notice as giving them the power to
fashion mask-exemption policies, the Court deems that the
DOT Enforcement Notice is incorporated into the Complaint
by reference and thus properly considered on a motion to
dismiss. See, e.g., Goelv. Bunge, Ltd., 820 F.3d 554, 559 (2d
Cir. 2016),
12a
“In addition, airlines may impose protective
measures to reduce or prevent the risk to other
passengers. For example, airlines may require
protective measures, such as a negative SARSCoV-2 test, taken at the passenger’s own expense,
during the days immediately prior to the
scheduled flight.” Id. at 4.
Over one year later, on March 23, 2022, an
organization named Airlines for America wrote a
letter to President Biden, Dkt. No. 3-10 (the “Airlines
Letter”), advocating that the President lift the Mask
Mandate, Compl. TfTf 124-125, 128, 130. The Airlines
Letter, signed by the executives of several airlines,
including some airlines named as Defendants in this
suit, noted that the aviation industry had voluntarily
implemented mask mandates prior to the CDC Order
and had supported the CDC’s mandate and other
travel restrictions. Airlines Letter at 1-3. It asserted,
however, that “much ha[d] changed since these
measures were imposed,” and the Mask Mandate was
no longer needed in light of “[t]he high level of
immunity in the U.S., availability of high-quality
masks for those who wish to use them, hospital-grade
cabin air, widespread vaccine availability and newly
available therapeutics.” Id. at 1-2.6
6 Plaintiff frequently uses the Airlines Letter as proof that
“[t]here was no safety concern for the airline[s],” see, e.g.,
Compl. If 1260, but this muddles the timeline of events
giving rise to this litigation. When the government
promulgated the Mask Mandate, in January 2021, airlines
followed it. It was not until more than one year later—
March 2022—that the executives of some airlines
advocated for termination of the Mask Mandate, when
13a
On April 18, 2022, the United States District Court for
the Middle District of Florida issued an opinion
finding that the Mask Mandate exceeded the CDC’s
statutory authority and violated the procedures
required for agency rulemaking under the
Administrative Procedures Act, and accordingly
vacated the Mask Mandate. See Health Freedom Def.
Fund, Inc. v. Biden, 599 F Supp. 3d 1144 (M.D. Fla.
2022); Compl. 104.
The Mask Mandate expired on May 11, 2023, the date
that the HHS Secretary’s declaration of a public
health emergency expired.
See Expired Order:
Wearing of face masks while on conveyances and at
transportation hubs, CDC.gov (May 12, 2023),
https://www.cdc.gov/quarantine/masks/mask-travelguidance.html. The Eleventh Circuit thus vacated as
moot the Florida district court’s decision. See Health
Freedom Def. Fund, Inc. v. President of the United
States, 71 F.4th 888 (11th Cir. 2023).7
vaccines were widely available and infection rates were
down. In any case, nowhere in the Airlines Letter does it
state that the virus posed no safety concern—rather, the
rationale the signatories provided was that the risk of
transmission was substantially lower than it had been
earlier in the pandemic.
7 On a motion to dismiss, the Court may consider “matters
of which judicial notice may be taken, such as legislative
facts, and adjudicative facts, such as publicly filed
decisions of this and other courts.” J.L. v. E. Suffolk Boces,
113 F. Supp. 3d 634, 645 (E.D.N.Y. 2015) (internal
citations and quotation marks omitted); see also Kramer v.
Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991).
14a
III. Restrictions on Plaintiffs Travel
Plaintiff is a New York resident with a sensoryprocessing disorder that prevents him from wearing a
mask. Compl.
1, 141. When he wears anything on
his face, his “senses go into overload.” Id. 141.
Plaintiff carries a letter from his primary care
physician, see Dkt. No. 3-11 (“Doctor’s Note”),
attesting to the fact that he cannot wear a mask.
Compl.
141, 810. The Doctor’s Note recites, in full:
Mr. Aaron Abadi is suffering from extreme
sensitivity to touch, mostly in the area of his head.
For this reason he is unable to wear face mask or
face shield, and should not be required to do so.
He has already recovered from COVID, and is not
contagious. Doctor’s Note at 1.
The letter does not contain the doctor’s license
number, a wet signature, or indicate when Plaintiff
contracted and recovered from the virus, but is on
hospital letterhead.
Id.
Further, Plaintiffs
neurologist has stated, on a different form filed with
the Florida Commission on Human Rights, that his
disability is severe enough that it meets the basic and
typically accepted definition of disability under
federal and state law. Compl. Tf 142; Dkt. No. 3-13.
For purposes of either work or pleasure, Compl. TJ 174,
Plaintiff wanted to fly from Amarillo, Texas to many
other states and countries, but claims he was denied
the ability to do so because of the Mask Mandate. Id.
69. Plaintiff alleges that more than fifty airlines
“refused to allow [him] to fly normally.” Id.
178,
797. The airlines service virtually every area of the
15a
globe, from North America to South America, Europe,
Asia, Africa, and the Middle East.
Plaintiff states in his Complaint that he emailed all or
almost all of the Moving Defendants to ask whether
he could travel maskless while the Mask Mandate was
in effect. But Plaintiffs allegations in his Complaint
often omit the date that Plaintiff submitted his initial
inquiry to each airline.
And many of the
communications between Plaintiff and Moving
Defendants appended to the Complaint lack Plaintiffs
initial email seeking exemption from the Mask
Mandate, and even those documents that do include
Plaintiffs first inquiry often omit the date that
Plaintiff sent the communication.
It appears,
however, from the responses of many Moving
Defendants that Plaintiff submitted most of these
inquiries on September 1, 2, and 3 of 2021. From the
appended documents that do include Plaintiffs initial
inquiry, it appears that he used nearly identical
language in his communication with each airline,
stating that he had a disability, attaching his Doctor’s
Note, and asking whether he would be permitted to fly
maskless.
Plaintiff alleges that “[a] 11 the airline corporation
defendants, airline personnel defendants, and the
attorney defendants refused to allow Plaintiff to
access flights at all, and/or unless he fulfilled unlawful
requirements.” Id.
166. Some airlines required
medical forms to be filled out with a doctor’s approval
to file. Id. K 170. Others required negative COVID19 tests, even though passengers without disabilities
faced no such requirement. Id.
171. Although
Plaintiff booked several flights initially, he stopped
16a
doing so after he learned that the Mask Mandate
would be applied to him. Id. If 178. Very few airlines
allowed Plaintiff to fly on their planes, leaving
Plaintiff “mostly grounded for over two years.” Id.
175.
Plaintiff alleges that the two medical consulting
organizations determined on behalf of certain of the
airlines who could fly and who could not fly. Id. Tf^f
729-757. He names certain airline employees or
representatives who responded to his requests for an
exemption. Id. Tf| 758-783.
Although some airlines did allow Plaintiff to fly
maskless, such as Air France, id. If 818, Plaintiff
claims that he lost business opportunities because
other airlines denied him access to flights, missing out
on projects in Bangalore, India, Sweden, South
Sudan, the Dominican Republic, and Saudi Arabia, id.
If 816, 831. He claims that the guidance issued by the
Government Defendants was “politically driven and
untrue” and discriminatory. Id. Tf 167. Plaintiff
alleges it “would be the Plaintiff s dream come true, if
the CDC took that ruling with the humility it deserves
and packed up their mask mandates and hid them
deep in a basement closet, never to be seen again.
Unfortunately, that dream is nothing more than a
fantasy.” Id. 850.
Plaintiff recites his experience with each of the
airlines that is a Moving Defendant. Many of the
allegations are based on, and are limited to, what
appears from the Complaint to be a form letter that
Plaintiff sent the airlines on or about September 1,
2021, and the responses he received from the airlines.
17a
A. Defendants American and Goldberg
American is an airline based in the United States. Id.
2. American retains as counsel Roy Goldberg, an
attorney of Stinson LLP. Id. 49. Plaintiff alleges
that he was twice barred from boarding American
flights: once on January 24, 2021, 8 and again
November 8, 2021. Id.
180, 185. On the second
occasion, American sent Plaintiff a letter stating that
the documentation he submitted to obtain an
exemption from the Mask Mandate did not meet
American’s qualifications and thus his exemption
request was denied. Id. 185; Dkt. No. 3-18 at 4.
Plaintiff again sought a medical exemption to the
Mask Mandate from American in early 2022 for a
flight to Phoenix, Arizona. Compl. 186; Dkt. No. 319. On February 20, 2022, American wrote Plaintiff
stating that to receive a medical exemption, he was
required to submit an official, dated letter from a
licensed medical provider with the medical provider’s
license number, attesting that Plaintiff had a
medically diagnosed physical or mental disability
qualifying under the Americans with Disabilities Act
which prevented him from safely wearing a mask for
the duration of the flight and explaining why. Dkt.
No. 3-19 at 5—6. Approval of any such request was
conditioned upon proof, presented upon check-in at
the airport, of a negative COVID-19 test taken within
seventy-two hours of departure. Id. Upon receipt of
8 The DOT Investigation Summary Sheet associated with
the incident and attached to the Complaint states the
travel date as January 27, 2021. Dkt. No. 3-16. The
difference is immaterial to this motion.
18a
Plaintiffs documentation, American approved the
exemption but requested an updated doctor’s letterone dated within thirty days of the flight. Dkt. No. 319 at 1; Compl.
186. On March 1, 2022, Plaintiff
emailed American and its counsel, Defendant
Goldberg, accusing American of violating federal law
by requiring the negative test and updated medical
documentation. Dkt. No. 3-19 at 1. On March 4, 2022,
Goldberg responded that American’s requirements
that
Plaintiff
present
adequate
medical
documentation of his condition and a negative
COVID-19 test were authorized by the DOT
Enforcement Notice and consistent with CDC policy.
Dkt. No. 3-20 at 3-4. In further communication,
Plaintiff apparently again accused American and
Goldberg of unlawful discrimination and threatened
legal action. See id. at 1-2; Compl. 187. Plaintiff
also sent immaterial to this motion, Goldberg a copy
of the Airlines Letter urging President Biden to end
the Mask Mandate and noted that American’s
chairman had signed it. Dkt. No. 3-21.
Plaintiff filed a complaint with the DOT after the first
time he was denied access to an American flight in
January 2021, complaining that American failed to
make an exemption to its mask policy despite his
disability. Compl.
181; Dkt. No. 3-16. After
investigation, the DOT found that American had
violated the Air Carriers Access Act of 1986 (“ACAA”)
because its then-applicable mask policy did not allow
for medical exemptions and did not conduct an
individualized assessment of whether Plaintiff could
safely wear a mask due to his disability and, if he
could, whether a reasonable accommodation could be
19a
made. Dkt. No. 3-16 at 3—4. However, the DOT also
found that American had changed its policy effective
February 2, 2021, to begin to allow medical
exemptions, before the DOT Enforcement Notice
reminded air carriers of their obligations to
accommodate the needs of passengers with
disabilities.
Id.
The investigation summary
concluded that DOT would exercise its prosecutorial
discretion and not take action for the ACAA violations
that occurred before the DOT Enforcement Notice was
issued.
Id.
Plaintiff has appealed the DOT
determination. Compl. 183.
Plaintiff brings claims against both American and
Goldberg. Plaintiff alleges that he “frequently flew
with American and would have flown with American”
had the airline exempted him from the Mask
Mandate. Id.
704. Plaintiff alleges Goldberg
“advised [American] to discriminate against him,” id.
*|] 49; see also id.
698, and further that Goldberg
“participated in the discrimination by assisting,
advising, and instructing their clients” to engage in
discrimination, id. T[ 80; see also id. T[ 699.
B.
Defendant Aeromexico
Aeromexico “is a foreign airline with flights to and
from the United States.” Id. 4. Plaintiff alleges that
he provided Aeromexico a copy of his Doctor’s Note
attesting to his inability to wear a mask, but that the
airline emailed him on or about September 1, 2021
refusing to issue an exemption. Id. 201. In April
2022, Plaintiff again sent Aeromexico a copy of his
Doctor’s Note and asked for confirmation that he
would be able to fly without a mask. Dkt. No. 3-24 at
1-2. Aeromexico responded two weeks letter that,
20a
according to “local and international authorities,” the
use of a mask onboard Aeromexico flights was
mandatory absent an exemption. Id. at 1. To obtain
a medical exemption, passengers with health
conditions were required “to provide a medical
certificate proving their condition,” including “the
reason why a face mask cannot be worn during the
flight, as well as the physician’s signature, seal, and
Professional ID Number.”
Id.
The medical
documentation had to “be delivered to [Aeromexico’s]
staff directly at the airport.” Id. Plaintiff alleges,
without explanation, that the medical documentation
that Aeromexico required was “intended for people
who medical conditions [sic] that might not be able to
fly at all.” CompL 205.
Plaintiff does not allege that he ever purchased a
ticket on Aeromexico or was ever denied travel on that
airline. He nevertheless alleges that Aeromexico
discriminated against him by requesting the medical
documentation. Id. And he alleges that, given the
frequency with which he flies, he “would need a Doctor
on payroll” to handle the volume of medical
documentation required by airlines. Id.
205-207.
C.
Defendant Avianca
Avianca “is a foreign airline with flights to and from
the United States.” Id. | 7. Plaintiff emailed Avianca
on September 1, 2021, explaining his disability with
his Doctor’s Note attached to inquire as to whether he
could fly with the airline without a mask, and, when
he did not receive a response, followed up on October
14, 2021. Id.
235-36; Dkt. No. 3-30. Avianca did
not respond until October 3, 2022, Compl.
235-238;
21a
Dkt. No. 3-31,9 at which point it stated that the
Doctor’s Note was insufficient to comply with its mask
exemption policy as it did not include information
about Plaintiff s itinerary to confirm that there was no
local mask mandate regulation that did not exempt
individuals with disabilities. Compl. 239; Dkt. No.
331. Plaintiff does not allege that he ever purchased
a ticket on Avianca or was ever denied travel on that
airline.
D. Defendants British Air and Roberts
British Air is an “airline based in the United
Kingdom” with flights going “to and from the United
States.” Compl. 12. At all relevant times, British
9 Although Plaintiffs Complaint alleges that Avianca
“ignorfed] [his] emails . . . for about a month” by failing to
respond until “on or about October 3, 2021,” Compl. TJ 238
(emphasis added), Avianca’s letter response appended to
the Complaint reflects that it was sent on October 3, 2022,
Dkt. No. 3-31. It is well established that “[w]hile the Court
must accept the facts as alleged in the complaint, ‘when
any allegations contradict the evidence contained in the
documents . . . , the documents control.’” Trahan v. Lazar,
457 F. Supp. 3d 323, 341 (S.D.N.Y. 2020) (quoting Rozsa v.
May David Grp., Inc., 187 F. Supp. 2d 123, 128 (S.D.N.Y.
2002), aff’d sub nom., Rozsa v. SG Cowen Sec. Corp., 165 F.
App’x 892 (2d Cir. 2006) (summary order)); see Chapman
v. Mueller Water Prods., Inc., 466 F. Supp. 3d 382, 402
(S.D.N.Y. 2020); see also Koulkina v. City of New York, 559
F. Supp. 2d 300, 314 (S.D.N.Y. 2008) (explaining that a
court is under no obligation “to reconcile [a pro se]
plaintiffs own pleadings that are contradicted by other
matter asserted or relied upon or incorporated by reference
by a plaintiff in drafting the complaint”).
22a
Air employed individual Matthew Roberts, “the
Airport Manager for British Air at Washington Dulles
Airport and at the Baltimore International Airport.”
Id. H 48. Plaintiff wrote to British Air on December
13, 2020, asking whether he could fly on the airline
without a mask. Id. 294. He attached the Doctor’s
Note and stated that he had tested positive for
COVID-19 in October 2020 and was willing to provide
a recent negative COVID-19 test. Dkt. No. 3-36.
British Air responded the following day, stating that
while it was mandatory for all passengers to wear a
mask, it recognized that not everyone could do so, and
that Plaintiff should be prepared to present his
doctor’s letter at all times, since he would be
“challenged by [a]irport [personnel and [the] [c]abin
[c]rew.” Id.10 Plaintiff purchased a ticket on British
Air on or about January 17, 2021, to fly from New
York to Bangalore, India. Compl. ^[ 297. Plaintiff
ultimately appeared for flights out of New York on
British Air on three separate occasions: January 22,
2021, February 3, 2021, and February 5, 2021, and
was denied boarding each time. Id.
298-303. On
January 22, 2021, Plaintiff, with his Doctor’s Note and
previous correspondence with British Air in hand, was
initially informed by airline personnel that he could
not fly without a mask. Id. 299. Eventually, airline
staff told Plaintiff that he would be able to fly without
10 In his Complaint, Plaintiff states that British Air
emailed him and approved his request to fly without a
mask, and that the email indicated that he did not need
clearance. Compl. TH 295-296. The correspondence that
Plaintiff appended to the Complaint as an exhibit reflects
otherwise, and, as noted, supra note 9, controls.
23a
a mask, but that he nevertheless could not board the
flight because his Indian visa was invalid. Id.
Plaintiff returned home and confirmed with the
Indian Consulate and Bureau of Immigration of India
that his visa was valid. Id. 300. When he returned
to the airport on February 3 to try to board another
flight to India with his email correspondence with
Indian immigration authorities in hand, he had an
identical experience. Id.
301-302. Plaintiff had
the same experience the third time he attempted to fly
from New York to Bangalore on British Air on
February 5. Id. 303.
On or about February 9, 2021, Plaintiff attempted to
fly from Washington Dulles Airport, where he spoke
with Defendant Roberts, the Washington Dulles
Airport manager for British Air. Id. 305. After an
hour of research, Roberts informed Plaintiff that his
visa was valid, and told Plaintiff he would call him in
the coming days to confirm. Id. 306. On February
11, 2021, Plaintiff called Roberts to follow up and was
informed that, although his visa was valid, he would
not be permitted to travel without a mask. Id. 307.
Roberts reiterated this information via email, stating
that British Air had determined that it was “unable to
accept [Plaintiff] for travel according to TSA,
[Customs and Border Protection,] and CDC
regulations.” Dkt. No. 3-37.
After having been denied flights in early 2021,
Plaintiff sent another email to Defendant Roberts on
December 14, 2021, asking whether he could fly on
British Air without a mask, and was told that British
Air’s mask requirement had not changed. Compl. TJTf
310-11; Dkt. No. 3-38.
24a
E. Defendants Delta and Simon
Delta is “one of the major airlines of the United
States.” Compl. 15. At all relevant times, Nathalie
Simon was employed by Delta in their Customer Care
Department. Id.
51. Plaintiff contacted Delta
several times to inquire whether he could travel
without a mask and he was told that Delta determines
eligibility for a medical exemption at the airport on
the day of travel and does not provide advance
clearance. Compl.
335-336.; Dkt. No. 3-41 at 7-8.
Plaintiff wrote to Delta on January 24, 2021, stating
that he had a sensory processing disorder and thus
could not wear a mask, and asking whether he could
fly without a mask. Dkt. No. 3-41 at 8-9. Plaintiff
offered to send his Doctor’s Note and provide a recent
negative COVID-19 test. Id. The following day, Delta
responded that it was aligned with the best practice
guidelines from the CDC and that “[c]ustomers with
medical conditions who are unable to wear a mask
without compromising their personal safety w[ere]
required to complete a Clearance-to-Fly process prior
to departure at the airport,” a process that Delta
assured Plaintiff was conducted quickly and privately.
Id. at 6-7. It appears that Plaintiff received clearance
to fly from Delta, as he emailed Delta in April 2021,
noting that clearance process went “very smooth[ly],”
and thanking them for an “absolutely amazing” flight
from Paris to New York. Id. at 4-6.
Plaintiff later accused Delta of discrimination. On
February 22, 2022, Plaintiff informed Delta that he
had an upcoming flight on April 13, 2022, and, with
his Doctor’s Note attached, requested advance
permission to fly maskless, stating that having to
25a
obtain a mask exemption at the airport on the day of
his flight “creat[ed] a lot of anxiety” and constituted “a
form of discrimination.” Id. at 1-3. Delta responded
that while it “would like to offer special consideration
in [Plaintiffs] case, [it] must have the same process
for all passengers with disabilities that prevent them
from wearing masks,” and the airline’s “Fly Clear
process can only be done at the airport on the day of
departure.” Id. at 1; Compl. *[[ 337. Plaintiffs next
scheduled Delta flight was the Paris to New York leg
of a trip from Bangalore to New York on March 31,
2022. Compl. T[ 338. When Plaintiff arrived in Paris,
however, having completed the Bangalore to Paris leg
of his trip with Air France with “anxiety and fear”
about the Delta clearance process, Delta refused to
allow Plaintiff to travel without a mask. Id.
339343. Ultimately, Plaintiff had to take an Air France
flight to New York. Id. T[ 351.
Plaintiff complained about his experience to both
Delta and the DOT shortly thereafter. Id.
354355; Dkt. No. 3-42. On April 11, Defendant Simon, a
Delta customer care representative, responded that
Plaintiff had been declined a mask waiver because the
third-party provider that oversaw the airline’s
Clearance to Fly program, Stat-MD,11 had concluded
that
Plaintiffs
condition—sensory
processing
disorder—was not a qualifying justification to obtain
a mask waiver. Compl. ^[ 355; Dkt. No. 3-42 at 1—2.
And on April 13, 2022, after being instructed by DOT
to respond to Plaintiffs DOT complaint, Delta wrote
11 Plaintiffs claims against Stat-MD’s agent, the Center for
Emergency Medicine of Western Pennsylvania, Inc.,
Compl. U 53, are not addressed in this Opinion.
26a
Plaintiff again and acknowledged that Plaintiff must
have been upset that he was not able to travel as
planned “because STAT-MD would not approve a
mask exemption for his medical condition,” and
apologized for any inconvenience. Dkt. No. 3-42 at 1.
Plaintiff alleges that Delta discriminated against him
by denying his exemption request. CompL
361,
724. Plaintiff also alleges that Simon, an employee of
Delta in their Customer Care Department,
participated in the alleged discrimination on Delta’s
behalf. Id. 51; see also id. 725 (alleging that Simon
was “complicit in [Delta’s] violations of the law” and
can be sued because “[i]f a person works for a company
that violates the law, they must leave, and/or report
them,” and Simon’s failure to do so “makes her equally
responsible”).
F.
Defendant Iberia Air
Iberia Air “is a flagship airline based in Spain with
flights to and from the United States.” Id. Tf 23.
Plaintiff “notified” Iberia Air of his medical disability
with a copy of the doctor’s letter attesting to his
inability to wear a mask. Id. 428. In its September
3, 2021 response, Iberia Air explained that to be
exempt from the mask requirement, Plaintiff had to
complete an attached medical form, have it signed by
his doctor, and submit the form for approval at least
three days before departure. Id. 431; Dkt. No. 3-53.
Plaintiff alleges that the form “is for people that have
medical issues that need a Doctor’s [sic] approval to
fly,” and that his sensory processing disorder “is a
sensory issue, not a medical issue that would affect
[his] ability to fly.” CompL 432. Plaintiff alleges
27a
that Iberia Air uses the form to obstruct his flying. Id.
H 432, 436.
G. Defendants JetBlue, Land, and Castleton
JetBlue “is a mostly domestic airline that flies
throughout the United States” and internationally.
Id. | 24. Robert Land is employed by JetBlue as their
“Senior Vice President of Government Affairs and
Associate General Counsel.” Id.
54.
Debbie
Castleton is employed by JetBlue in their customer
support department. Id. 55.
Plaintiff alleges that he had a flight booked with
JetBlue for December 10, 2020. Id.
439. At the
airport, he presented the JetBlue check-in staff with
his Doctor’s Note, but JetBlue did not permit him to
board the plane without a mask. Id. 440. Plaintiff
ultimately wore a mask during the flight, but alleges
that it was “very painful.” Id. 442. Plaintiff “never
wore a mask on a flight after that experience.” Id.
Plaintiff complained to the DOT. See Dkt. No. 3-16 at
5-8. On January 27, 2021, JetBlue, and specifically
Defendant Land, responded to the complaint, stating
that JetBlue “allow [ed] no exceptions to the face
covering requirement” and “deny[ing] that [the
airline’s] actions were in violation of DOT
regulations.” Dkt. No. 3-55 at 1.
It appears, however, that JetBlue changed its policy
and began accommodating individuals with
disabilities almost immediately thereafter.
On
February 9, 2021, four days after the DOT
Enforcement Notice was issued clarifying that
airlines may exempt from the Mask Mandate those
whose disabilities prevented them from wearing
28a
masks, a JetBlue customer support agent, Defendant
Castleton, responded to Plaintiffs complaint to
JetBlue’s executive office. Dkt. No. 3-54 at 1-2. The
email responding to Plaintiffs complaint stated, in
pertinent part:
Customers with disabilities who cannot wear a
mask, or cannot safely wear a mask because of a
permanent disability as defined by the Americans
with Disabilities Act may contact us via phone or
chat to apply for an exemption from this
requirement. Exemptions will be limited on board
each flight and will require specific documentation
submitted in advance as well as testing and a face
shield worn at all times. Id. at 1; Compl. K 771.
In addition to his claims against JetBlue, Plaintiff
brings claims against Land and Castleton as the
individuals who responded to Plaintiffs inquiries and
complaints. Compl.
54-55. More specifically,
Plaintiff alleges that Land “conspired with others at
JetBlue, other airlines, and others to violate Plaintiffs
civil rights, and did not intervene to prevent these
discriminations [sic], even though he [had] the power
to do [so].” Id. T[ 764. As to Castleton, Plaintiff,
referencing the language in Castleton’s email stating
that JetBlue required individuals exempt from the
Mask Mandate to wear a face shield, asserts that
Castleton made “very clear” that JetBlue would not
accommodate Plaintiff and has “not reach [ed] out to
the Plaintiff since then to correct” that information.
Id. TH 770—772. Like his allegations as to Land,
Plaintiff contends that Castleton “conspired with
others at JetBlue and other airlines to violate
Plaintiffs civil rights, and did not intervene to prevent
29a
these discriminations, even though she [had] the
power to do [so].” Id. 774.
H. Defendant Latam
Latam “is an airline holding company headquartered
in Santiago, Chile.” Id. 28. As he did with numerous
other airlines, Plaintiff notified Latam of his disability
with the Doctor’s Note and inquired as to whether he
could travel maskless. Id. Tf 476. Latam responded
on September 3, 2021. Id. ^[ 477; Dkt. No. 3-59 at 1.
It stated that to obtain a mask exemption, Plaintiffs
“doctor must complete the attached form,” at which
point “the Latam doctors will study it and give you an
answer.” Compl. 479; Dkt. No. 3-59 at 1. Latam
cautioned however, that because the mask mandate
was “an ordinance of the health authorities,” airport
personnel would have the final say as to whether
Plaintiff could fly maskless. Compl. 479; Dkt. No. 359 at 1.
Plaintiff filed a complaint with DOT on the basis of
Latam’s response, Compl. ^[ 492, alleging that Latam
had discriminated against him on the basis of his
disability and told him that he would not be permitted
to fly, see Dkt. No. 3-60 at 2. Latam responded to
Plaintiffs complaint by letter dated November 11,
2021. Compl. T[ 492; Dkt. No. 3-60 at 1. The letter
challenged Plaintiffs discrimination claims, and
stated that “[u]pon a confirmed reservation, persons
with a disability or medical condition who cannot
wear a face mask or cannot wear it safely due to a
disability or medical condition must send a medical
certificate” to Latam’s help center at least forty-eight
hours before a scheduled flight, at which point Latam
30a
would inform the passenger whether he or she could
travel without a mask. Dkt. No. 3-60 at 1.
I. Defendant LOT Air
LOT Air “is a foreign airline based in Poland with
flights to and from and the United States.” Compl.
29. Plaintiff inquired as to whether he would be
permitted to fly maskless with LOT Air, and was
informed on September 8, 2021, that to obtain an
exemption from the mask mandate, Plaintiff had to
submit medical documentation. Dkt. No. 3-61 at 9.
Plaintiff responded approximately one month later, on
October 12, 2021, with a copy of his Doctor’s Note, and
asked for confirmation that he would be permitted to
fly without a mask. Id. at 3; Compl. 497. LOT Air
responded to Plaintiff that same day, stating that “it
was possible” for Plaintiff to fly without a mask, but
that the final decision was left to gate personnel at
the airport. Compl. 498; Dkt. No. 3-61 at 1. Plaintiff
complains that he could not book a flight with LOT Air
to fly to Poland, because if he succeeded in being
permitted to fly maskless to Poland, he might be
unable to leave the country if gate personnel in Poland
would not let him board without a mask. Compl.
500.
J. Defendant Maroc
Maroc “is a foreign airline with flights to and from the
United States.” Id.
34. Plaintiff asked Maroc
multiple times whether he would be permitted to fly
without a mask beginning September 2, 2021. Id.
544—545. Although Maroc acknowledged receipt of
Plaintiffs inquiries through automated emails, Maroc
31a
did not substantively respond to his inquiries. Id. TH
545-46; see Dkt. No. 3-66.
K. Defendant Silver
Silver is a “regional airline” based in the United
States. Compl.
36. Plaintiff emailed Silver on
September 2, 2021, stating that he had “a sensory
integration disorder” that rendered him unable to
wear a mask, and asking whether he would be
permitted to fly without a mask with a copy of his
Doctor’s Note attached. Dkt. No. 3-68 at 1. Silver
responded with an email approximately one week
later, on September 10, 2021. Id.', Compl. U 564. It
stated that a “[l]etter from CDC authorizing will be
needed for domestic and international flights,” and
additionally, for international flights, both “CDC
authorization and approval from the health
department of that specific country,” and, seemingly
for all flights, a “[n]otice letter to TSA,” to consider
Plaintiffs request. Dkt. No. 3-68 at 1; see Compl.
565—566. Plaintiff complains that the CDC does not
provide letters authorizing anyone to fly. Compl.
565.
He alleges that since the demands are
“practically impossible” to meet, Silver has prevented
him from flying on the basis of his disability. Id.
567-568.
L. Defendant SIA
SIA “is the flag carrier airline of Singapore.” Id. 37.
Plaintiff emailed SIA on September 3, 2021, informing
them of his “sensory integration disorder” with his
Doctor’s Note attached and inquiring whether he
could travel on the airline without a mask. Id. 574;
Dkt. No. 3-69. SIA responded on September 6, asking
32a
for Plaintiffs booking information. Dkt. No. 3-69 at
2— 3. Plaintiff responded that he had not yet booked a
flight as he was awaiting an answer from the airline
as to whether he could fly maskless. Id. at 1-2. On
September 8, SIA responded that Plaintiffs Doctor’s
Note did not qualify him for an exemption. Id. at 1;
Compl. H 575-576.
M. Defendant Southwest
Southwest is a U.S.-based airline “that flies
throughout the United States, with several routes to
international destinations.” Compl.
38. Plaintiff
wrote to Southwest asking whether he would be
permitted to fly without a mask. Id. U 582. Southwest
responded on May 24, 2021, describing requisite
documentation needed to obtain a mask exemption: a
form requesting an exemption, a signed letter from a
physician at least seven days prior to travel, and a
negative COVID-19 test within three days of the
departure date. Id.
585; Dkt. No. 3-70 at 1, 3.
Because Plaintiff had not completed the requisite
form, his exemption request was denied. Dkt. No. 370 at 7.
Plaintiff filed a complaint with DOT against
Southwest, alleging discrimination. Compl. 582; see
Dkt. No. 3-70 at 7. Southwest responded, citing the
CDC Order and denying any discrimination. Dkt. No.
3- 70 at 6-7. Southwest invited Plaintiff to reapply for
an exemption with the requisite materials.
Id.
Plaintiff then forwarded Southwest’s response to an
individual at DOT insisting that Southwest was
discriminating against him on the basis of his
disability and requesting that DOT “clarify the laws
33a
and correct these misinterpretations as soon as
possible.” Id. at 5.
Plaintiff alleges that “Southwest runs routes in many
areas where [he] chooses to fly and needs to fly, and
[he] would have flown with Southwest if not for these
discriminations.” Compl. ^[ 591.
N. Defendant Spirit
Spirit is an airline based in the United States. Id. 1]
39.12 Plaintiff wrote to Spirit asking whether he
would be permitted to fly without a mask. Id. 595.
Spirit responded on September 3, 2021 with details
regarding the airline’s requirements to obtain an
exemption to the mask mandate: that the passenger
inform the airline that he would seek a mask
exemption forty-eight hours before his flight, arrive at
the airport three hours before their scheduled
departure time to allow for possible screening by
medical experts, present a negative COVID-19 test
taken within twenty-four hours of the flight’s
departure time, and submit either Spirit’s medical
exemption form completed by a medical professional
or a doctor’s note on the doctor’s official letterhead
acknowledging the passenger’s disability and listing
the doctor’s license number and phone number. Id.
596, 599-602; Dkt. No. 3-71 at 1-2.
12 Although Plaintiff has included in his Complaint claims
against Spirit’s outside counsel, Miguel Morel, Compl. |
50, Morel did not join the Foreign Defendants’ motion to
dismiss with Spirit and has filed his own motion to dismiss,
Dkt. No. 261, which the Court does not address in this
Opinion.
34a
O. Defendant TAP
TAP is “the airline of Portugal” that services “flights
to and from the United States.” Compl. | 43. Plaintiff
reached out to TAP inquiring whether he would be
permitted to travel without a mask multiple times
starting on September 2, 2021.13 Compl. | 638; Dkt.
No. 3-75. Plaintiff followed up on October 12 and
November 11. Dkt. No. 3-75 at 2, 6-7. On November
11, TAP responded, requesting Plaintiffs booking
reference, to which Plaintiff responded that he had
not booked a flight with TAP as he was awaiting an
answer as to whether he could fly maskless. Id. at 5.
On November 12, TAP reiterated that it needed
Plaintiffs booking information, but added that “to
request to be excused for [sic] the use of a face mask
for short periods of time,” Plaintiff had to submit a
Medical Information Form (“MEDIF”) within
seventytwo hours of departure and a negative COVID19 test within forty-eight hours of departure. Id. at 4;
Compl.
639-640. Plaintiff responded that same
day, accusing TAP of disability discrimination in
violation of the ACAA. Dkt. No. 3-75 at 4. TAP
responded on January 11, 2022, stating that
passengers with disabilities requesting a mask
exemption were “required to fill out [the airline’s]
form,” and clarifying that its testing requirement was
not due to Plaintiffs disability but instead
13 Plaintiffs Complaint alleges that he initially wrote to
TAP on September 3, 2021, but Plaintiffs email
correspondence with TAP appended to the Complaint and
incorporated by reference therein reflect that Plaintiff
emailed TAP on September 2, 2021. Dkt. No. 3-75 at 1. As
noted supra note 9, the official documentation controls.
35a
government policy for “[a]ll passengers travelling
to/from Europe.” Id. at 3.
Plaintiff alleges that because any exemption would be
for “short periods of time,” he would not be able to
obtain a mask exemption for the duration of a flight to
or from Portugal. CompL ^[ 639. He also reiterates
that MEDIFs are “used primarily for people that have
medical issues that need a Doctor’s approval to fly,”
and, as Plaintiff has sensory process disorder, which
“is a sensory issue, not a medical issue that would
affect [his] ability to fly,” TAP’s requirement was
discriminatory. Id. 641.
P. Defendant United
United is a U.S.-based airline that services flights
both domestically and abroad. Id. U 45. Plaintiff
alleges that he was denied access to fly by the airline
on or about December 18, 2020 due to his inability to
wear a mask after providing United with a copy of his
Doctor’s Note. Id.
659-660. On December 17,
United stated that it had determined, “based on a
review of current medical knowledge and CDC
guidance,” that “the possibility of asymptomatic
transmission of Covid-19” constituted “a direct threat
to the health and safety of [its] passengers,” a threat
which could only be mitigated if each passengers wore
a face mask. Dkt. No. 3-77 at 2. In response, Plaintiff
informed United that he would file a complaint
against it for disability discrimination. Id. United
replied, reiterating its policy and denying that it had
violated any federal disability laws. Id. at 1; Compl.
If 661.
36a
Plaintiff then filed his complaint with DOT. When
United received notice of the complaint, it emailed
Plaintiff stating that it was adhering to the directives
of the CDC and reiterating that it had not violated
federal disability law. Dkt. No. 3-78.
Plaintiff alleges that he “frequently flew with United,
and would have flown with United” had they
exempted him from the mask requirement. Compl.
667. Plaintiff further alleges that until the Mask
Mandate was lifted, “United continued to refuse
Plaintiff access to fly,” depriving him of business
opportunities. Id. 662.
Q. Defendant Volaris
Volaris “is a Mexican low-cost airline based in Santa
Fe, Alvaro Obregon, Mexico City.” Id. | 47. Plaintiff
notified Volaris of his inability to wear a mask with a
copy of his Doctor’s Note. Id.
678. In its initial
response on October 1, 2021, Volaris informed
Plaintiff that he would be required to wear a mask
during the flight. Id.
679-680; Dkt. No. 3-80 at 1.
However, and although Plaintiff does not mention this
in his Complaint, his correspondence with Volaris
appended to the Complaint reveals that Volaris
changed its policy in the following month.
On
November 9, 2021, Volaris informed Plaintiff that he
could request a mask exemption by submitting a
signed doctor’s letter attesting to Plaintiffs condition
and the “[d]ates of incapacity” on official letterhead.
Dkt. No. 3-80 at 3-4.
IV. Plaintiffs Injuries
As noted above, Plaintiff flies frequently. Compl. Tf
803; see Dkt. No. 3-83 (Plaintiffs flight itineraries for
37a
January through March of 2020). Plaintiff alleges
that each of Defendants, individually and as a group,
denied Plaintiff his right to travel on the basis of his
disability.14 Compl. 810. More specifically, Plaintiff
alleges that he “was banned from traveling, and/or the
process to get permission to travel was so complicated
and/or expensive that it was not an option for
Plaintiff.” Id. If 811.
Plaintiff asserts that he suffered several forms of
injury from Defendants’ alleged conduct.
“Not
allowing [Plaintiffs] business-related travel caused
him severe financial damages” amounting to “billions
of [d]ollars” of losses, due to both Plaintiffs inability
to work due to his inability to travel, and lost lucrative
prospective business opportunities. Id. Ulf 813-814,
825-827.15 He also alleges that his business prospects
14 And, “for the little traveling that he did do,” Plaintiff
“was forced to . . . [spend] thousands of dollars more,” a
total loss amounting in over $10,000. Compl. H 809.
15 Plaintiff appends to his Complaint an unsigned, unsworn
affidavit by the Chief Operating Officer (“COO”) of his
company, Dkt. No. 3-85, which Plaintiff says “attests to the
losses that NEG projects sustained due to [his] inability to
travel,” Compl. 823. Even if the Court were to consider
this affidavit, see, e.g., Meimaris v. Royce, 2018 WL
9960113, at *2 (S.D.N.Y. Nov. 5, 2018) (stating that “[t]he
Court cannot rely on the contents of an unsigned and
unsworn affidavit” and collecting cases to that effect), the
COO’s affidavit does not state that Plaintiff lost out on
billions of dollars due to Defendants’ conduct. The COO
merely avers that while the Mask Mandate was in effect,
Plaintiff entered into a contract with a member of the royal
family of the United Arab Emirates (“UAE”) to provide gasfired turbine generators, but the other party reneged on the
38a
required him to fly domestically to California, Florida,
Texas, and Illinois, and internationally to England,
Switzerland, Israel, India, Saudi Arabia, and the
UAE, as well as many other destinations. Id. 838.
As a result, Plaintiff alleges that he “ran out of money
for basic life expenses.” Id.
833. Plaintiff also
alleges nonmonetary harm from Defendants’ alleged
conduct: Plaintiff contends that “[n]ot allowing him
his leisure travel is a violation of his rights and
discrimination, [sic] and can cause serious anxiety,
depression, and/or mental illness.”
Id.
808.
Moreover, in his pursuit to fly maskless, Plaintiff was
often “shamed publicly, and his personal information
became public.” Id. 812.
Plaintiff asserts that this harm is continuing, id. ^[
814, despite the fact that the Mask Mandate has
terminated. In addition to injunctive and declaratory
deal and Plaintiff was unable to save it because he could
not fly to the UAE to speak with the individual in person.
Dkt. No. 3-85 TH 5, 8—9. The COO states that Middle
Eastern royalty is generally distrustful of video
conferencing technology, and thus Plaintiff had to travel to
the UAE in person, id. U 10; if he had, the COO “is very
confident” that “the outcome would be very different” and
the deal could have been completed as agreed, id. ^[ 9, 11.
Plaintiff sued for breach of contract in federal court in
Connecticut and received a judgment in the amount of
$140 million. Id. T[ 14. The COO also avers that the owners
of other companies that Plaintiff had contracted with also
reneged on their contractual obligations when they did not
“see [Plaintiff] in Saudi Arabia in person,” and Plaintiff
seeks to sue those individuals for breach of contract as well.
Id. H 15, 17.
39a
relief, he seeks actual, nominal, and punitive damages
for the alleged discrimination he suffered.
See
generally id.
PROCEDURAL HISTORY
Plaintiff filed this Complaint on May 1, 2023, in the
United States District Court for the Northern District
of Texas. Dkt. No. 3. By order of May 8, 2023, the
District Court for the Northern District of Texas sua
sponte transferred the case to this Court. Dkt. No. 10.
Plaintiff brings thirty-eight claims. Several counts
concern only the Government Defendants or other
non-moving Defendants, and thus are not addressed
here. Counts One, Compl. TH 867-880, Two, id. TH
881-887, and Three, id. TH 888-896 allege various
violations of the Administrative Procedure Act, 5
U.S.C. §§ 551 et seq. against the CDC and HHS;
Counts Four, id. TH 897-903, and Five, id.
904910, allege unconstitutional delegation of legislative
power in violation of Article I of the United States
Constitution against the CDC and HHS and against
the President of the United States in connection with
the Executive Order; and Count Six, id. Ulf 911-917,
alleges violation of the separation of powers doctrine
and the Tenth Amendment in connection with the
President’s Executive Order. Count Thirty-Eight
alleges violations of the non-delegation doctrine
against the Government Defendants. Id.
13491363. One count, Count Thirty-Five, id.
13101318, asserts medical malpractice by what Plaintiff
calls the
“medical defendants”—the private
40a
companies that some airlines contracted with to
administer their mask exemption policies.
This Opinion is addressed to the remaining claims—
asserted under both federal and state law—insofar as
they are brought against the Moving Defendants.16
Count Seven, id.
918- 931, alleges violations of 42
U.S.C. § 1983; Count Eight, id.
932—998, alleges
violations of 42 U.S.C. § 1985; and Count Nine, id.
986-1002, alleges violations of 42 U.S.C. § 1986.
Counts Ten through Eighteen allege violations of
various provisions of the ACAA, see id.
1003— 1124,
and Count Nineteen, id.
1125-1150, alleges
violations of the Rehabilitation Act, 29 U.S.C. §§ 720
et seq. Counts Twenty through Twenty-Six allege
violations of various state and city anti-discrimination
laws. Id. TH 1151-1227. Counts Twenty-Seven
through Twenty-Nine, id.
1228-1248, and Counts
Thirty-Three, id.
1285-1295, and Thirty-Six, id.
1319-1328, allege various torts each arising from the
laws of four different states: New York, New Jersey,
California, and Texas. 17 Counts Thirty through
16 In many instances, Plaintiff does not specify which
Defendants he asserts various claims against. The Court
construes the Complaint broadly to allege discrimination
by all Defendants unless otherwise pled, but in this
Opinion only addresses the validity of each claim as to the
Moving Defendants.
17 It is clear that the conduct of each of the Moving
Defendants does not fall within the reach of all four states
whose law Plaintiff invokes. Nor is it clear which state law
would address the conduct of which of the Moving
Defendants. In this Opinion, for purposes of simplicity,
and because Plaintiffs claims against each Moving
41a
Thirty-Two allege contract or quasi-contract claims
arising from the laws of those same four states. Id.
1249—1284. Count Thirty-Four alleges violation of
Plaintiffs right to privacy under the United States
Constitution, the constitutions of various states, and
state law. Id.
1296—1309. Finally, Count ThirtySeven
alleges
infringement
of
Plaintiffs
constitutional right to travel. Id.
1329-1348.
In late 2023, Moving Defendants filed their motions to
dismiss. The Domestic Defendants filed their motion
to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6), along with a
memorandum of law in support on October 30. Dkt.
Nos. 121- 22.18 Plaintiff filed his opposition to the
motion to dismiss on November 16. Dkt. No. 172. The
Domestic Defendants filed a reply brief in further
support of their motion on November 28. Dkt. No.
199.
Silver moved to dismiss the Complaint for failure to
comport with Rule 8 and for failure to state a claim
Defendant fail under the law of all four states, the Court
assumes without deciding that the law of each of the four
states applies to each Moving Defendant. However, the
Court has not concluded that the conduct of any of the
Moving Defendants can be reached by the law of any
particular state.
18 In their opening motion to dismiss, Domestic Defendants
did not address Plaintiffs Section 1983 claims. They
instead filed another motion to dismiss and accompanying
memorandum of law specifically seeking dismissal of the
1983 claims on November 28, 2023. Dkt. No. 197. Plaintiff
filed his response on December 24, 2023. Dkt. No. 240.
42a
under Rule 12(b)(6) on November 1, 2023, along with
a memorandum of law in support of its motion. Dkt.
Nos. 130, 132. But in its briefing, Silver did not make
any arguments regarding Plaintiffs failure to state
claims, contending only that the Complaint failed to
comport with Rule 8’s requirements as to form. Dkt.
No. 132. Instead, it sought to join the Domestic
Airlines’
and Domestic Individuals’
12(b)(6)
arguments. Dkt. No. 220. The Court accordingly
treats Silver as having joined the Domestic
Defendants’ motion to dismiss. Plaintiff filed his
opposition to Silver’s motion on November 16. Dkt.
No. 170. Silver filed a reply in support of dismissal on
November 27. Dkt. No. 189.
The Foreign Defendants moved to dismiss the
Complaint for failure to state a claim under Rule
12(b)(6) and, as to Defendant Roberts, lack of personal
jurisdiction under Rule 12(b)(2) on November 20. Dkt.
Nos. 179-180.
Plaintiff opposed the motion on
November 22. Dkt No. 194. The Foreign Defendants
filed a reply memorandum on December 12. Dkt. No.
228.
LEGAL STANDARD
Moving Defendants challenge every cause of action
Plaintiff levels against them principally on grounds
that the Complaint fails to state a claim for relief
under Rule 12(b)(6). One Defendant argues that the
Complaint fails to comport with the form
43a
requirements of Rule 8.19 In addition, Domestic
Defendants challenge Plaintiffs standing.20
19 Silver argues that the Complaint should be dismissed for
failure to follow the requirement of Federal Rule of Civil
Procedure 8(a)(2) that the complaint contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). “When a
complaint does not comply with the requirement that it be
short and plain, the court has the power, on its own
initiative or in response to a motion by the defendant, to
strike any portions that are redundant or immaterial, see
Fed.R.Civ.P. 12(f), or to dismiss the complaint. Dismissal,
however, is usually reserved for those cases in which the
complaint is so confused, ambiguous, vague, or otherwise
unintelligible that its true substance, if any, is well
disguised.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.
1988); Harnage v. Lightner, 916 F.3d 138, 141 (2d Cir.
2019); Collins v. Pearson Educ., Inc., 2024 WL 895316, at
*5 (S.D.N.Y. Mar. 1, 2024). If the court dismisses a
complaint under Rule 8, “it should generally give the
plaintiff leave to amend.” Simmons v. Abruzzo, 49 F.3d 83,
87 (2d Cir. 1995). The length of Plaintiffs complaint is, in
part, a function of the number of defendants he has sued.
5 Charles A. Wright & Arthur R. Miller, Federal Practice
6 Procedure § 1217 (4th ed.) (“[I]n the context of a
multiparty, multiclaim complaint each claim should be
stated as succinctly and plainly as possible even though the
entire pleading may prove to be long and complicated by
virtue of the number of parties and claims.”). The
complaint here is not so confused, ambiguous, vague or
unintelligible to require dismissal.
20 Domestic Defendants halfheartedly argue that Plaintiff
lacks standing to bring their claims against him, see Dkt.
No. 122 at 41-43, and that the claims are moot, id. at 4346. Foreign Defendants do not share this view. See Dkt.
44a
No. 180. To establish standing, a plaintiff must allege (1)
an injury in fact that is actual or imminent, not conjectural
or hypothetical; (2) that is fairly traceable to the conduct of
the defendant; and (3) that is likely to be redressed by a
favorable decision. See Lujan v. Defs. of Wildlife, 504 U.S.
555, 560-61 (1992). At the pleading stage, “general factual
allegations of injury resulting from defendant’s conduct
may suffice” to establish standing. Id. Plaintiff here has
alleged sufficient facts against at least some of the Moving
Defendants to establish standing by claiming (1) that he
was denied access to their flights, see, e.g., Compl.
ISO85, 343, 493, 660; (2) that he suffered injuries that were
actual and fairly traceable to the conduct of the airlines,
e.g., id. U 442 (alleging pain and suffering from flight on
JetBlue); id. 662 (alleging that he needed to fly on United
for his business but was denied access); and (3) that he
suffered injury in the form of increased travel spending for
alternate travel and lost business opportunities, id.
809,
814, that can be remediated by an award of money
damages. Moreover, the allegations against each of the
Moving Defendants are nearly identical. Accordingly, at
this stage, the Court is seized with jurisdiction and need
not make an individualized review as to whether, with
respect to each of the Moving Defendants, Plaintiff has
made sufficient allegations of standing. See Massachusetts
v. EPA, 549 U.S. 497,
518 (2007) (only one petitioner needs to have standing for
court to have Article III jurisdiction); Rumsfeld v. F. for
Acad. & Institutional Rights, Inc., 547 U.S. 47, 53 n.2
(2006) (“[T]he presence of one party with standing is
sufficient to satisfy Article Ill’s case-or-controversy
requirement.”); Kachalsky v. County of Westchester, 701
F.3d 81, 84 n.2 (2d Cir. 2012), cert, denied, 569 U.S. 918
(2013), abrogated on other grounds by N.Y. State Rifle &
Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) (holding that where
45a
In considering a motion to dismiss pursuant to Rule
12(b)(6), a “court must accept the material facts as
alleged in the complaint as true and construe all
reasonable inferences in the plaintiffs favor.” Phelps
v. Kapnolas, 308 F.3d 180, 184 (2d Cir. 2002) (quoting
Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.),
cert, denied, 513 U.S. 836 (1994)). However, “[t]o
survive a 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 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
complaint must offer more than “labels and
conclusions,” “a formulaic recitation of the elements of
a cause of action,” or “naked assertion[s]” devoid of
“further factual enhancement” in order to survive
dismissal. Twombly, 550 U.S. at 555, 557. The
ultimate question is whether “[a] claim has facial
plausibility, [i.e.,] the plaintiff pleads factual content
that allows the court to draw the reasonable inference
“at least one plaintiff has standing, jurisdiction is secure
and we can adjudicate the case whether the additional
plaintiff has standing or not” and declining to address issue
of whether an additional defendant was a proper party to
the case).
Because Plaintiff has asserted a claim for
damages, including nominal damages, his claims against
the Moving Defendants are not moot. See, e.g., Van Wie v.
Pataki, 267 F.3d 109, 115 n.4 (2d Cir. 2001) (noting that a
claim for damages, even nominal in nature, prevents a case
from becoming moot even if the allegedly unlawful conduct
has ceased); see also Marin v. Town of Southeast, 136 F:
Supp. 3d 548, 562-63 (S.D.N.Y. 2015).
46a
that the defendant is liable for the misconduct
alleged.”
Iqbal, 556 U.S. at 678. “Determining
whether a complaint states a plausible claim for relief
will ... be a contextspecific task that requires the
reviewing court to draw on its judicial experience and
common sense.” Id. at 679. Put another way, the
plausibility requirement “calls for enough fact to raise
a reasonable expectation that discovery will reveal
evidence [supporting the claim].” Twombly, 550 U.S.
at 556; see also Matrixx Initiatives, Inc. v. Siracusano,
563 U.S. 27, 46 (2011).
When adjudicating a motion to dismiss under Rule
12(b)(6), the court considers not only the well-pleaded
allegations of the complaint but documents
incorporated by reference and “matters of which
judicial notice may be taken.” Chambers v. Time
Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); see
Gray v. Wesco Aircraft Holdings, Inc., 454 F. Supp. 3d
366, 382-83 (S.D.N.Y. 2020), aff’d, 847 F. App’x 35 (2d
Cir. 2021) (summary order).
The Court ordinarily construes pro se pleadings
broadly and liberally, interpreting them so as to raise
the strongest arguments they suggest. See McLeod v.
Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir.
2017) (per curiam); Abbas v. Dixon, 480 F.3d 636, 639
(2d Cir. 2007); Cruz u. Gomez, 202 F.3d 593, 597 (2d
Cir. 2000). And this obligation rings “especially true
when dealing with pro se complaints alleging civil
rights violations.” Weixel v. Bd. of Educ. of City of
N.Y., 287 F.3d 138, 146 (2d Cir. 2002); see also
Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001)
(same). However, while the Court construes pro se
47a
pleadings liberally, pro se plaintiffs are not relieved of
the requirement that they plead facts that raise a
right to relief above a speculative level. See Saidin v.
N.Y.C. Dep’t of Educ., 498 F. Supp. 2d 683, 687
(S.D.N.Y. 2007) (“[P]ro se status does not relieve a
plaintiff of the pleading standards otherwise
prescribed by the Federal Rules of Civil Procedure.”).
And, in this case, Plaintiff is entitled to somewhat
lesser solicitude because of his extensive experience
with and schooling in the law as it applied to motions
to dismiss and mask mandates and other public
health measures taken to slow the spread of COVID19. See Sledge v. Kooi, 564 F.3d 105, 109-110 (2d Cir.
2009) (discussing circumstances where frequent pro se
litigant may be charged with knowledge of particular
legal requirements); Tracy v. Freshwater, 623 F.3d 90
(2d Cir. 2010).21
21 Plaintiff has brought numerous actions challenging
mask mandates and other COVID-19related restrictions
under federal and state disability law. These claims have
almost uniformly been rejected. See, e.g., Abadi v. New
York, 2022 WL 347632 (S.D.N.Y. Feb. 4, 2022), aff’d sub
nom., Abadi v. City of New York, 2023 WL 3295949 (2d Cir.
May 8, 2023) (summary order), cert, denied, 144 S. Ct. 260
(2023) (denying Plaintiff injunctive relief enjoining
enforcement of some of New York City’s COVID-19-related
restrictions, including the requirement that individuals be
vaccinated against the virus to enter indoor dining,
entertainment, recreation, and fitness venues, and the
requirement that employees of the City and City
contractors be vaccinated or take weekly COVID-19 tests);
Abadi v. Target Corp., 2023 WL 4045373, at *1 (3d Cir.
June 16, 2023) (per curiam), cert, denied, 144 S. Ct. 235
48a
(2023) (rejecting Plaintiff s federal claims of discrimination
on the basis of disability against Target and unnamed
Target employees on the basis of the store’s mask policy for
lack of subject matter jurisdiction and failure to state a
claim); Abadi v. Target Corp., 2023 WL 6796558 (E.D. Pa.
Oct. 13, 2023) (dismissing Plaintiffs state law claim
against Target for lack of jurisdiction and failure to state a
claim); Abadi v. Walmart, Inc., 2022 WL 9822322 (D. Me.
Oct. 17, 2022), report and recommendation adopted, 2022
WL 16552955 (D. Me. Oct. 31, 2022), aff’d, see CM-ECF 22cv-00228-GZS, Dkt. No. 17 (D. Me. Sept. 29, 2023)
(dismissing Plaintiffs claims of disability discrimination
due to masking requirement under the Americans with
Disabilities Act, Rehabilitation Act, Supremacy Clause, 42
U.S.C. §§ 1983, 1985, 1986, and state law for failure to
state a claim); Abadi v. Quick Check Corp., 2023 WL
3983879 (D.N.J. June 13, 2023) (denying Plaintiffs motion
for leave to amend his complaint alleging disability
discrimination claims under the Americans with
Disabilities Act and the Rehabilitation Act complaint to (1)
name as defendants seven individuals employed by the
convenience store, which the district court denied; and (2)
to bring a state law discrimination claim against the
convenience store, which the court granted); see also CMECF 3:21-cv-20272MAS-RLS, Dkt. No. 44 (D.N.J. Jan. 4,
2024), appealed to Third Circuit, CM-ECF 3:21-cv20272MAS-RLS, Dkt. No. 46 (D.N.J. Jan. 26, 2024) (denying
Plaintiff s motion for reconsideration of the court’s decision
on his motion to amend). Plaintiff also brought challenges
to DOT decisions regarding his allegations of disability
discrimination against various airlines in two different
circuit courts, but was rejected in both, with the Supreme
Court again declining to grant certiorari in both actions.
See In re Abadi, 2022 WL 2541249, at *1 (D.C. Cir. Apr. 14,
2022) (per curiam), cert, denied sub nom. Abadi v. Dep’t of
49a
DISCUSSION
Plaintiff brings a series of claims under both federal
and state law. Moving Defendants contend that the
Plaintiff fails to state a claim for each. Dkt. Nos. 122,
180, 197. Moving Defendants also contend that the
state law claims are preempted by several federal
laws. The Court addresses each of Plaintiffs claims in
seriatim, breaking briefly between the federal and state
law claims to discuss general preemption principles.
I.
42 U.S.C. § 1983 Claim
Count Seven of the Complaint22 alleges that the
Airline Defendants and their employees, among
others,23 violated 42 U.S.C. § 1983 by discriminating
against him on the basis of his disability. CompL
918-931. Section 1983 “provides a mechanism for
enforcing individual rights ‘secured’ elsewhere, i.e.,
rights independently ‘secured by the Constitution and
laws’ of the United States.” Gonzaga Univ. v. Doe, 536
Transp., 143 S. Ct. 220 (2022) (denying Plaintiffs appeal of
DOT’s order); Abadi v. Dep’t of Transp., 2021 WL 7500325,
at *1 (2d Cir. Dec. 29, 2021), cert, denied, 142 S. Ct. 1694
(2022) (same).
22 As noted, Counts One through Six allege claims against
the Federal Defendants, and thus are not addressed in this
Opinion.
23 In many instances, Plaintiff does not specify which
Defendants he asserts various claims against. The Court
construes the Complaint broadly to allege discrimination
by all Defendants unless otherwise pled, but in this
Opinion only addresses the merits as to the Moving
Defendants.
50a
U.S. 273, 285 (2002). It was enacted “to deter state
actors from using the badge of their authority to
deprive individuals of their federally guaranteed
rights and to provide relief to victims if such
deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161
(1992). Plaintiff claims that the Airline Defendants
acted under color of law, Compl.
922-924, because
they were recruited by the Government to enforce the
Mask Mandate, id. *|| 924, and because flight crews
utilized “quasi police power,” protected by federal
statutory law, while on the plane, id.
925-926.
Moving Defendants contend that Plaintiffs claim fails
as a matter of law because he has not demonstrated
state action sufficient to trigger 1983, see Dkt. Nos.
180, 198.
Section 1983 provides that an action may be
maintained against a “person” who has deprived
another of rights independently secured by the
“Constitution and laws.” 42 U.S.C. § 1983. To
successfully plead a § 1983 claim, a plaintiff must
allege two elements. First, “the conduct complained
of must have been committed by a person acting under
color of state law.” Pitchell v. Callan, 13 F.3d 545, 547
(2d Cir. 1994). Second, “the conduct complained of
must have deprived a person of rights, privileges or
immunities secured by the Constitution or laws of the
United States.” Id. It is well established that airlines
and their staff “are private, not state, actors.” Blythe
v. Southwest Airlines Co., 383 F. App’x 766 (10th Cir.
2010); see Sanchez-Naek v. Tap Port., Inc., 260 F.
Supp. 3d 185, 192 n.l (D. Conn. 2017); see also Berlin
v. JetBlue Airways Corp., 436 F. Supp. 3d 550, 563-64
(E.D.N.Y. 2020); Mapp-Leslie v. Norwegian Airlines,
51a
2020 WL 264919, at *2 (E.D.N.Y. Jan. 17, 2020).
Accordingly, Plaintiff must thus show that the
defendants were nonetheless acting “under color of
state law,” and thus are subject to liability under §
1983. Importantly, “a private entity does not become
a state actor for purposes of § 1983 merely on the basis
of ‘the private entity’s creation, funding, licensing, or
regulation by the government.’” Fabrikant v. French,
691 F.3d 193 (2d Cir. 2012) (quoting Cranley v. Nat’l
Life Ins. Co. of Vt., 318 F.3d 105, 112 (2d Cir. 2003)).
“Rather, ‘there must be such a close nexus between
the state and the challenged action’ that the state is
‘responsible for the specific conduct of which the
plaintiff complains.’” Id. (quoting Cranley, 318 F.3d
at 111).
As the Second Circuit has explained,
Hollander v. Copacabana Nightclub, 624 F.3d 30, 34
(2d Cir. 2010) (per curiam), the actions of nominally
private entities are attributable to the state when
those actions meet one of three tests:
(l)the entity acts pursuant to the “coercive power”
of the state or is “controlled” by the state (“the
compulsion test”); (2) when the state provides
“significant encouragement” to the entity, the
entity is a “willful participant in joint activity with
the [s]tate,” or the entity’s functions are
“entwined” with state policies (“the joint action
test” or “close nexus test”); or (3) when the entity
“has been delegated a public function by the
[s]tate,” (“the public function test”). Sybalski v.
Indep. Grp. Home Living Program, Inc., 546 F.3d
255, 257 (2d Cir. 2008) (alterations in original)
(quoting Brentwood Acad. v. Tenn. Secondary Sch.
Ath. Ass’n, 531 U.S. 288, 296 (2001)).
52a
“The fundamental question under each test is whether
the private entity’s challenged actions are ‘fairly
attributable’ to the state.” McGugan v. AldanaBernier, 752 F.3d 224, 229 (2d Cir. 2014). The Court
“begin [s] the fair attribution inquiry by identifying
‘the specific conduct of which the plaintiff complains,
rather than the general characteristics of the entity.’”
Grogan v. Blooming Grove Volunteer Ambulance
Corps, 768 F.3d 259, 264 (2d Cir. 2014) (quoting
Fabrikant, 691 F.3d at 207). Importantly, “even
extensive regulation by the government does not
transform the actions of the regulated entity into
those of the government.” S.F. Arts & Athletics, Inc.
v. U.S. Olympic Comm., 483 U.S. 522, 542 (1987).
Here, Plaintiff alleges that the airlines discriminated
against him by not permitting him to fly maskless
upon presentation of his Doctor’s Note, in violation of
his constitutional rights and federal law. Thus, the
ultimate issue that the Court addresses is whether
the decisions of Moving Defendants to require him to
wear a mask or otherwise comply with their policies is
fairly attributable to the state so as to subject Moving
Defendants to the strictures of the Constitution.
The Complaint fails to satisfy any of the three tests.
To satisfy the compulsion test, “plaintiff must allege
‘actual coercion’ by a state actor that impacts upon the
private actor's decision-making.” OBrien v. Carrier
Coach, Inc., 2006 WL 692409, at *3 (W.D.N.Y. Mar. 6,
2006) (collecting cases) (rejecting a Section 1983 claim
even though the plaintiff alleged that the defendant’s
business “depend [s] upon a certain amount of
governmental aid,” and is “conducted according to
policies which ‘are greatly influenced and/or shaped
53a
by state and/or federal statutes and regulations.’”
(citations omitted)). “A private entity ... is not a state
actor where its conduct is not compelled by the state
but is merely permitted by . . . law.” Dawkins v.
Biondi Educ. Ctr., 164 F. Supp. 3d 518, 526 (S.D.N.Y.
2016). “[T]he state must be involved . . . with the
activity that caused the injury. Putting the point
another way, the state action, not the private action
must be the subject of the complaint.” Powe v. Miles,
407 F.2d 73, 81 (1968).
The state must have
“exercised coercive power or . . . provided such
significant encouragement, either overt or covert, that
the choice must in law be deemed to be that of the
State.” Hernandez v. City of New York, 2022 WL
316938, at *5 (S.D.N.Y. Feb. 2, 2022) (quoting Doe v.
Rosenberg, 996 F. Supp. 343, 348-49 (S.D.N.Y. 1998)).
Even if a private entity is funded by the state and
subject to extensive state regulation, its decision does
not become state action. See, e.g., Jackson v. Metro.
Edison Co., 419 U.S. 345, 350 (1974); McGugan, 752
F.3d at 229-31. This rule has been applied to airlines
specifically. See Anderson v. USAir, Inc., 812 F.2d 49,
56 (D.C. Cir. 1987) (“USAir is not transformed into a
government actor by regulation.”).
Plaintiff does not allege compulsion here. Plaintiff
does not allege that the state had any involvement in
the decision of any of the Moving Defendants to apply
their mask policies to him or provided any
encouragement to the Moving Defendants to do so.
From the Complaint and appended documents, each
airline’s unique mask exemption policy was a function
of its individual interpretation of the CDC Order and
the DOT Enforcement Order and generalized
54a
decision-making. Each of the Moving Defendants
acted autonomously with respect to his requests,
setting forth their own requirements and policies for
exemptions to the Mask Mandate. Cf. McGugan, 752
F.3d at 239; Doe v. Harrison, 254 F. Supp. 2d 338, 342
(S.D.N.Y. 2003).24
Plaintiff also does not allege the type of “pervasive
entanglement” necessary to satisfy the joint action or
close nexus test.25 To “assure that constitutional
24 Indeed, Plaintiff alleges that the DOT on occasion found
that the Moving Defendants had violated federal law in
their application of the Mask Mandate to him. See, e.g.,
Compl. HU 155, 182, 215. Those allegations undermine,
rather than support, any claim of state compulsion.
25 Over sixty years ago, in Burton, v. Wilmington Parking
Authority, 365 U.S. 715 (1961), the Supreme Court
fashioned a “symbiotic relationship” test—a concept
“closely related to the [entwinement] concept,” Forbes v.
City of New York, 2008 WL 3539936, at *7 (Aug. 12, 2008),
but slightly broader—to determine whether a private
entity acted under color of law. In Burton, the Supreme
Court considered whether the state “has so far insinuated
itself into a position of interdependence with [the private
entity] that it must be recognized as a joint participant in
the challenged activity.” 365 U.S. at 725. “Thus, in
contrast to the nexus inquiry, this avenue of approach
ousts the challenged conduct from center stage and
concentrates instead on the nature of the overall
relationship between the State and the private entity.”
Perkins v. Londonderry Basketball Club, 196 F.3d 13, 21
(1st Cir. 1999). Under the symbiotic relationship test,
courts considered the extent to which the private entity
was independent in the conduct of its day-to-day affairs
and whether the state knowingly shared in the profits
55a
standards are invoked only when it can be said that
the [s]tate is responsible for specific conduct of which
the plaintiff complains,” see, e.g., Blum v. Yaretsky,
457 U.S. 991, 1004 (1982), “[i]t is not enough . . . for a
accrued from complained of conduct of the private entities.
To the extent this test remains good law, and even
applicable here, see, e.g., Island Online, Inc. v. Network
Sols., Inc., 119 F. Supp. 2d 289, 306-07 (E.D.N.Y. 2000)
(noting that the symbiotic relationship test is “limited to
cases involving leases of public property” and “cases where
the State benefits financially from a private entity’s
discriminatory conduct”), the allegations fail that test as
well. The airlines are independent in conducting their dayto-day affairs, and Plaintiff does not plead otherwise. Nor
did the state knowingly share in any profits accrued from
the allegedly discriminatory conduct—a key element to
finding a symbiotic relationship. See Rendell-Baker v.
Kohn, 457 U.S. 830, 843 (1982); Hadges v. Yonkers Racing
Corp., 918 F.2d 1079 (2d Cir. 1990). Plaintiff does not
allege that the government, or, for that matter, the Moving
Defendants, financially profited at all from the
discrimination. See, e.g., Barrios-Velazquez v. Asociacion
de Empleados del Estado Libre Asociado de Puerto Rico, 84
F.3d 487, 494 (1st Cir. 1996) (finding no symbiotic
relationship where the plaintiff failed “to link the alleged
[legal violation] to some financial gain to the government”).
In fact, Plaintiff himself indicates that the airlines lost
money by allegedly discriminating against individuals
with disabilities and not permitting them to fly. For
example, Plaintiff did not book flights with several airlines,
including SIA, see Dkt. No. 3-69 at 1-2, and TAP Air, see
Dkt. No. 3-75 at 2, 5-7, because he was awaiting a
determination as to whether he could fly maskless.
56a
plaintiff to plead state involvement in ‘some activity of
the institution alleged to have inflicted injury upon a
plaintiff,... [r]ather, the plaintiff must allege that the
state was involved ‘with the activity that caused the
injury’ giving rise to the action,” Sybalski, 546 F.3d at
257-58 (emphasis in original) (quoting Schlein v.
Milford Hosp., Inc., 561 F.2d 427, 428 (2d Cir. 1977)). “A
private actor can only be a willful participant in joint
activity with the [s]tate or its agents if the two share
some common goal to violate the plaintiffs rights.”
Betts v. Shearman, 751 F.3d 78, 85 (2d Cir. 2014)
(internal quotation marks omitted). “The touchstone
of joint action is often a ‘plan, prearrangement,
conspiracy, custom, or policy’ shared by the private
actor and the [state].” Forbes, 2008 WL 3539936, at
*5(quoting Ginsberg v. Healey Car & Truck Leasing, Inc.,
189 F.3d 268, 272 (2d Cir. 1999)). The existence of
governmental regulations, standing alone, does not
create the requisite entwinement. See, e.g., Blum, 457
U.S. at 1004. Similarly, the fact that a private entity
contracts with the government or receives
governmental funds or other kinds of governmental
assistance does not automatically transform the
conduct of that entity into state action. Rendell-Baker,
457 U.S. at 840—42; see S.F. Arts & Athletics, 483 U.S. at
544 (“The Government may subsidize private entities
without assuming constitutional responsibility for
their actions.”); Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d
Cir. 2009); Fabrikant v. French, 691 F.3d at 207 (“[A]
private entity does not become a state actor ... merely
on the basis of the private entity’s creation, funding,
licensing, or regulation by the overnment.”). Nor is a
private entity’s “undertaking] to perform a service for
57a
the government” sufficient. Andersonv. USAir, 818 F.2d
49, 56 (D.C. Cir. 1987).
Here, not only is there no allegation that the Airline
Defendants contracted with the government, Plaintiff
alleges no facts that could support a finding of largely
overlapping identity between the state and the
defendant entities that Plaintiff contends acted under
color of law. Plaintiffs allegations that flight crews
exercise a “quasi police power,” Compl. ^[ 925, fail
because courts have consistently held that “[t]he
provision of information to or summoning of police
officers, even if that information . . . results in the
officers taking affirmative action, is not sufficient to
constitute joint action with state actors for purposes
of § 1983,” Young v. Suffolk County, 705 F.2d 183, 196
(E.D.N.Y. 2010) (Bianco, J.); see also Ginsberg, 189
F.3d at 272; Butler v. Goldblatt Bros., Inc., 589 F.2d
323, 325-26 (7th Cir. 1978), cert, denied, 444 U.S. 841
(1979).
Finally, Plaintiff does not satisfy the public function
test.
To satisfy the public function test, “the
government must have traditionally and exclusively
performed the function.” Manhattan Cmty. Access
Corp. v. Halleck, 587 U.S. 802, 809 (2019); see
Jacobson v. Kings Cnty. Democratic Cnty. Comm., 788
F. App’x 770 (2d Cir. 2019) (summary order);
SteeleWarrick v. Microgenics Corp., 2023 WL
3959100, at *5 (E.D.N.Y. June 12, 2023). “The fact
‘[t]hat a private entity performs a function which
serves the public does not make its acts
[governmental] action.’” S.F. Arts & Athletics, 483
U.S. at 545 (quoting Rendell-Baker, 457 U.S. at 842).
“[A] private entity may be considered a state court
58a
[only] when it exercises a function ‘traditionally
exclusively reserved to the State.’” Manhattan, Crnty.
Access Corp., 587 U.S. at 804 (quoting Jackson, 419
U.S. at 352). “It is not enough that the federal, state,
or local government exercised the function in the past,
or still does. And it is not enough that the function
serves the public good or the public interest in some
way.” Id. at 810. The Plaintiff does not allege, nor
could he, that the operation of airlines in the United
States has been traditionally and exclusively reserved
to the government.26
Plaintiff alleges that “flight crew[s] believe that they
have ... a quasi police power while on the plane,” and
that, if violations of airline policy occur on a flight,
“[t]he people enforcing the law until the police [arrive]
and the ones calling the police [] are the flight
attendants and the pilots. Compl.
925, 928.
However, “the mere fact that a private actor
[requested and] received police assistance is not
sufficient to transform that private actor’s conduct
into state action for § 1983 purposes.” See, e.g.,
Meadows v. United Servs., Inc., 963 F.3d 240, 243 (2d
Cir. 2020) (citing Ginsberg, 189 F.3d at 272); see also
Anderson, 818 F.2d at 190 (airline not transformed
into government actor by intervention of Federal
26 Plaintiff alleges that he “experience multiple situations
during Covid-19, where the flight attendants barked
commands, expecting Plaintiff to follow orders, or else.”
Compl. If 930. That conclusory allegation does not support
a claim that the airlines acted with the power of the state
and, in doing so, deprived Plaintiff of his constitutional
rights.
59a
Aviation Administration police to remove party from
plane). Insofar as Plaintiff alleges that flight crews
themselves act as police, see Compl.
925-929,
“courts have consistently held that the mere fact that
an individual’s job involves the investigation of crime
does not transform him into a government actor,”
Gallagher v. Neil Young Freedom Concert, 49 F.3d
1442, 1457 (10th Cir. 1995) (quoting United States v.
Garlock, 19 F.3d 441, 443—44 (8th Cir. 1994)); see also
Ginsberg, 189 F.3d at 272. “This is true even when
the government requires that certain security
measures be taken.” Gallagher, 49 F.3d at 1457.
Plaintiff also implies that the flight crews had
discriminatory motive, Compl.
924, but “one’s
motivation is irrelevant to the determination of
whether one is a state actor,” Young v. Suffolk County,
705 F. Supp. 2d 183, 196 (E.D.N.Y. 2010) (citing Kash
v. Honey, 38 F. App’x 73, 75-76 (2d Cir. 2002)
(summary order)).
In conclusion, the Court finds that Plaintiff has failed
to plausibly allege that Moving Defendants are state
actors, and thus his 1983 claim fails as a matter of
law. See, e.g., Lugar v. Edmondson Oil Co., Inc., 457
U.S. 922, 939 (1982) (“Action by a private party
pursuant to [1983], without something more, was not
sufficient to justify a characterization of that party as
a ‘state actor.’”). The Court thus need not consider
whether Plaintiff adequately pled a deprivation of
rights, the second element necessary to plead a 1983
claim.
60a
II. 42 U.S.C. § 1985 Claim
In Count Eight, Plaintiff alleges that all Defendants
engaged in a conspiracy with one another to interfere
with his civil rights by depriving him of his right to fly
in violation of 42 U.S.C. § 1985. Compl.
932-985.
In particular, Plaintiff alleges he was discriminated
against based on his membership in the class of “those
with disabilities towards masks,” id. 940; see also id.
If 945, analogizing to “[m]entally disabled people, a
sub-category of disabled people,” id. 939, a group he
alleges constitutes a protected class. He claims that
he “expect [s] to prove through discovery that the
Airline Defendants conspired—with each other, other
air carriers, and within their own companies—to ban
disabled flyers because of a discriminatory motive.”
Id. T] 961. He also claims that the conspiracy involved
“the constitutional right to travel.” Id.
969. He
alleges that the parties all “had a clear understanding
between all of them that they will together not allow
passengers to fly without a mask, even though they
are disabled and cannot wear a mask.” Id. 971.
Section 1985(3) provides, in pertinent part, as follows:
If two or more persons in any State or Territory
conspire or go in disguise on the highway or on the
premises of another, for the purpose of depriving,
either directly or indirectly, any person or class of
persons of the equal protection of the laws, or of
equal privileges and immunities under the laws
[those persons shall be liable for damages to a
person who is] injured in his person or property, or
deprived of having and exercising any right or
privilege of a citizen of the United States. 42
U.S.C. § 1985(3).
61a
To make out a claim under Section 1985(3), the
plaintiff must adequately allege “(1) a conspiracy; (2)
for the purpose of depriving, either directly or
indirectly, any person or class of persons of equal
protection of the laws, or of equal privileges and
immunities under the laws; (3) an act in furtherance
of the conspiracy; (4) whereby a person is either
injured in his person or property or deprived of any
right of a citizen of the United States.” Mian v.
Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085,
1087 (2d Cir. 1993) (per curiam). In adopting the
predecessor to Section 1985(3), Congress’s “central
concern” was to “combat[] the violent and other efforts
of the [Ku Klux] Klan and its allies to resist and to
frustrate the intended affects of the Thirteenth,
Fourteenth, and Fifteenth Amendments.” United
Bhd. of Carpenters & Joiners of Am., Loe. 610 v. Scott,
463 U.S. 825, 837 (1983). The statutory “language
requiring intent to deprive of equal protection, or
equal privileges and immunities, means that there
must be some racial, or perhaps otherwise class
based, invidiously discriminatory animus behind the
conspirators’ action.” Griffin v. Breckenridge, 403
U.S. 88, 102 (1971). Thus, the conspiracy must “be
motivated by ‘some racial or ... [other] discriminatory
animus.’” Mian, 7 F.3d at 1087—88 (quoting Scott, 463
U.S. at 829); see also Mira v. Kingston, 715 F. App’x
28, 30 (2d Cir. 2017) (summary order), cert, denied,
139 S. Ct. 126 (2018); Grillo u. N.Y.C. Transit Auth.,
291 F.3d 231, 234 (2d Cir. 2002) (Section 1985(3)
requires evidence “that the actions of the individual
[defendants] were motivated by racial animus or illwill”); Thomas v. DeCastro, 2019 WL 1428365, at *7
(S.D.N.Y. Mar. 29, 2019) (“Under [Section 1985], [a
62a
p]laintiff must make ‘a showing of class-based
invidiously discriminatory animus’ on the part of the
conspiring parties, as well as provide ‘some factual
basis supporting a meeting of the minds, such that
[the] defendants entered into an agreement, express
or tacit, to achieve the unlawful end.’” (citations
omitted)); Gong v. Sarnoff, 2023 WL 4561800, at *10
(S.D.N.Y. July 17, 2023). In order to allege a claim
under Section 1985(3), plaintiff must allege the
existence of a qualifying class and that the alleged co
conspirators were animated by a “class-based,
invidiously discriminatory animus,” i.e., that the co
conspirators committed to their course of conduct “at
least in part ‘because of,’ not merely ‘in spite of,’ its
adverse effects upon an identifiable group.” Bray v.
Alexandria Women’s Health Clinic, 506 U.S. 263, 272
(1993) (quoting Pers. Adm’r of Mass. v. Feeney, 442
U.S. 256, 279 (1979)). The plaintiff must also allege
“that the conspiracy ‘aimed at inferring with rights’
that are ‘protected against private, as well as official,
encroachment,”’ id. (quoting Scott, 463 U.S. at 833),
i.e., the right must be “consciously targeted and not
just incidentally affected,” Spencer v. Casavilla, 44
F.3d 74, 78 (2d Cir. 1994); see also id. at 79
(impairment of the right must be the conscious
objective of the conspiracy).
At the outset, Domestic Defendants argue that
Plaintiff cannot plead a claim under Section 1985(3)
because “disability discrimination claims by disabled
airline passengers are exclusively governed” by a
separate federal statute, the ACAA. Dkt. No. 122 at
8. In Great American Federal Savings & Loan Ass’n
v. Novotny, 442 U.S. 366 (1979), the Supreme Court
63a
held that Section 1985(3) could not be used to enforce
rights created solely by Title VII of the Civil Rights
Act of 1964. Id. at 378. The Court observed that
recognition of a plaintiffs ability to enforce through
Section 1985(3) a right created by Title VII would
permit a plaintiff to circumvent the “detailed
administrative and judicial process designed to prove
an opportunity for nonjudicial and nonadversary
resolution of claims.” Id. at 372-73; see id. at 375-76
(“If a violation of Title VII could be asserted through §
1985(3), a complainant could avoid most if not all of
these detailed and specific provisions of the law.”). In
Sherlock v. Montefiore Medical Center, 84 F.3d 522 (2d
Cir. 1996), the Second Circuit extended Novotny to
claims brought under the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Id.
at 527. The court stated that the existence of a
“similar mechanism for enforcement and conciliation
of claims under the ADEA [as under Title VII]
persuades us that a violation of the ADEA likewise
cannot be the basis for a claim under § 1985(3).” Id.-,
see also Sauter v. Nevada, 142 F.3d 445 (9th Cir. 1998)
(deeming Section 1985(3) unavailable to enforce
statutory rights under ADA and ADEA “when the
statute in question has its own remedial structure”).
Defendants’ argument is not persuasive.27 The Court
did not base its decision in Novotny solely on the fact
that an alternative administrative remedy was
available for the complainant. It based its decision on
27 The Court recognizes that the United States District
Court for the District of Massachusetts reached a contrary
conclusion. See Seklecki v. Ctr. for Disease Control &
Prevention, 635 F. Supp. 3d 15, 22 (D. Mass. 2022).
64a
the fact that the right asserted to be enforced through
Section 1985(3) did not exist independently of Title
VII. 442 U.S. at 378; see also id. at 376 (“The right
[the plaintiff] claims under § 704(a) did not even
arguably exist before the passage of Title VII.”). Thus,
the case did not involve any claim of “implied repeal.”
Id. at 377. In effect, the right created by Title VII was
part-and-parcel of the remedial regime Congress
created to enforce it. A plaintiff could not assert that
congressionally created right without following the
congressionally created process for enforcing it.
In this case, however, Plaintiff does not rest his
Section 1985(3) claim solely on a congressionallycreated right to be free from discrimination in airline
travel. He asserts a constitutionally-protected right
to be able to travel interstate, a right that the
Supreme Court has stated is “secured against
interference from any source whatever, whether
governmental or private.” United States v. Guest, 383
U.S. 745, 759 n.17 (1966); see Saenz v. Roe, 526 U.S.
489, 498 (1999) (the right to interstate travel “is so
important that it is ‘assertable against private
interference as well as governmental action ... a
virtually unconditional personal right, guaranteed by
the Constitution to us all’” (quoting Shapiro v.
Thompson, 394 U.S. 618, 643 (1969) (Stewart, J.,
concurring))).28 His claim is thus analogous to those
28 This is not to say that Plaintiff has asserted a wellfounded claim for infringement of his right to travel. As
discussed below, see infra, the right to interstate travel is
not “virtually unqualified,” rather it is subject to
“reasonable government regulation.” Aptheker v. Sec’y of
State, 378 U.S. 500, 508 (1964).
65a
where courts have held that a plaintiff can bring
independently a claim under Section 1985(3) for a
right protected by the Constitution.
See, e.g.,
Stevenson v. N.Y. State Dep’t of Corr. & Cmty.
Supervision, 2022 WL 179768, at *15 (W.D.N.Y. Jan.
20, 2022) (citing cases). It may be that Congress
created an administrative process for Plaintiff to
enforce his rights under the ACAA. There is no
indication that, in passing the ACAA, Congress
intended to foreclose a plaintiff from asserting an
independent claim for conspiracy to violate his right
to interstate travel because of his membership in a
protected class. Cf. Gardner-Alfred v. Fed. Rsrv. Bank
of N.Y., 651 F. Supp. 3d 695, 706-07 (S.D.N.Y. 2023)
(holding that a plaintiff may pursue remedies under
RFRA and Title VII simultaneously).29
Plaintiffs claim under Section 1985(3) fails for a
different reason—because he is unable to plead the
29 The Seventh Circuit’s decision in D’Amato v. Wis. Gas
Co., 760 F.2d 1474 (7th Cir. 1985), is not to the contrary.
There, the Seventh Circuit affirmed the dismissal of
Plaintiffs claim that the defendants had violated Section
1985(3) by terminating his employment on the basis of his
disability. In part, the court reasoned that allowing the
plaintiff to pursue his claim for employment discrimination
“through the mechanism of Section 1985(3) would
impermissibly intrude on the statutory scheme of both [the
Rehabilitation Act] and 1985(3).” Id. at 1487. But, as the
court observed, “the right to employment that [the
plaintiff] claims did not exist prior to the enactment of
Section 503.” Id. Thus, as with Title VII, the right did not
exist independent of the remedial regime Congress created
to enforce it.
66a
On the other hand, the Third Circuit has held that
individuals with mental disabilities are a qualifying
class under Section 1985(3), see Farber v. City of
Paterson, 440 F.3d 131, 137 (3d Cir. 2006); Lake v.
Arnold, 112 F.3d 682, 686 (3d Cir. 1997), and the
Eighth Circuit has stated that “§ 1985(3)’s protection
extends to the handicapped as a class as well as to
females,” Larson by Larson v. Miller, 55 F.3d 1343,
1352 (8th Cir.), reh’g granted, judgment vacated sub
nom. Larson v. Miller, 67 F.3d 148 (8th Cir. 1995), and
on reh’g, 76 F.3d 1446 (8th Cir. 1996).
The Second Circuit stated in 1982 that the claim that
the “mentally retarded”30 were a class protected by
section 1985(3) was “colorable.” See People by Abrams
v. 11 Cornwell Co., 695 F.2d 34, 42 (2d Cir. 1982),
vacated on other grounds sub nom. People of State of
N.Y. by Abrams v. 11 Cornwell Co., 718 F.2d 22 (2d
Cir. 1983). The decision has never been overruled or
questioned by the Second Circuit. A number of
district courts in this Circuit subsequently held that
disabled individuals are a class falling within the
protection of Section 1985(3). See Lalonde v. City of
Ogdensburg, 2023 WL 2537626, at *16 (N.D.N.Y. Mar.
16, 2023); Doe v. Yorkville Plaza Assocs., 1994 WL
509903, at *9 (S.D.N.Y. Sept. 19, 1994); Trautz v.
Weisman, 819 F. Supp. 282, 290 (S.D.N.Y. 1993); cf.
B.D.S. v. Southold Union Free Sch. Dist., 2009 WL
30 The Court notes that the medical community no longer
uses the term “mentally retarded.”
Change in
Terminology: “Mental Retardation” to “Intellectual
Disability,” 78 Fed. Reg. 46,499 (Aug. 1, 2013). By quoting
the Second Circuit, the Court does not mean to endorse the
continued use of this language.
68a
1875942, at *20 n.8 (E.D.N.Y. June 24, 2009) (stating
in dicta that “the Second Circuit has recognized
mental disability as a class protected by Section 1985,
and, thus, it logically follows that persons with other
types of disabilities, i.e., learning and developmental
disabilities, would also be part of a class protected by
Section 1985”) (internal citations omitted). However,
other circuits have disagreed. See, e.g., Fitzpatrick v.
Town of Falmouth, 321 F. Supp. 2d 119, 124 (D. Me.
2004) (stating that there is a disagreement among the
Circuits whether Section 1985 covers disability
discrimination and holding that it does).
The Second Circuit has resisted an interpretation of
Section 1985(3) that would limit it to “protecting only
[African-Americans] and other analogously oppressed
minorities [as] untenable in light of the history of the
Act.” Dolan v. Connolly, 794 F.3d 290, 296 (2d Cir.
2015) (quoting Keating v. Carey, 706 F.2d 377, 387 (2d
Cir. 1983)). At the same time, it has held that a class
must possess “inherited or immutable characteristics”
for it to be “sufficient to satisfy the classbased animus
requirement.” Id.
The Court need not decide in this case whether the
disabled are a qualifying class under Section 1985(3).
See, e.g., Griffin, 403 U.S. at 103 n.9; Andreadakis,
2022 WL 2674194, at *8. The Complaint contains no
well-pleaded allegations to support the conclusion of
conspiracy, or an agreement to violate a federal right,
or invidious discrimination. “A conspiracy is an
agreement between two or more individuals where
one acts in further of the objection of the conspiracy
and each member has knowledge of the nature and
scope of
69a
the agreement.” Morpurgo v. Incorporated Village of
Sag Harbor, 697 F. Supp. 2d 309, 339 (E.D.N.Y. 2010),
aff’d, 417 F. App’x 96 (2d Cir. 2011) (summary order).
“In order to maintain an action under Section 1985, a
plaintiff ‘must provide some factual basis supporting
a meeting of the minds, such that defendants entered
into an agreement, express or tacit, to achieve the
unlawful end.’” Webb v. Goord, 340 F.3d 105, 110-11
(2d Cir. 2003), cert, denied, 54 U.S. 1110 (2004)
(quoting Romer v. Morgenthau, 119 F. Supp. 2d 346,
363 (S.D.N.Y. 2000)); see Ziglar v. Abbasi, 582 U.S.
120, 154 (2017) (“To state a claim under § 1985(3), a
plaintiff must first show that the defendants
conspired—that is, reached an agreement—with one
another”). A plaintiff must allege “specific facts
relating to the purported conspiracies.” K.D. ex rel.
Duncan v. White Plains Sch. Dist., 921 F. Supp. 2d
197, 308 (S.D.N.Y. 2013). “It is well settled that
claims of conspiracy ‘containing only conclusory,
vague, or general allegations of conspiracy to deprive
a person of constitutional rights cannot withstand a
motion to dismiss.’” Gallop v. Cheney, 642 F.3d 364,
369 (2d Cir. 2011) (quoting Leon v. Murphy, 988 F.2d
303, 311 (2d Cir. 1993)); see San Filippo v. U.S. Tr. Co.
of N.Y., Inc., 737 F.2d 246, 256 (2d Cir. 1984), cert,
denied, 470 U.S. 1035 (1985) (“[C]onclusory
allegations of conspiracy are insufficient to survive . .
. a 12(b)(6) motion for dismissal.”); see also Taranto v.
Putnam County, 2023 WL 6318280, at *12 (S.D.N.Y.
Sept. 28, 2023) (dismissing complaint for failure to
sufficiently plead conspiracy); Gropper v. Fine Arts
Hous., Inc., 12 F. Supp. 3d 664, 671-72 (S.D.N.Y.
2014) (same); Brooks v. County of Nassau, 54 F. Supp.
3d 254, 259 (E.D.N.Y. 2014) (same); Roffman v. City
70a
of New York, 2002 WL 31760245, at *5-6 (S.D.N.Y.
Dec. 10, 2002) (same); ArroyoHorne v. City of New
York, 2019 WL 3428577, at *5 (E.D.N.Y. July 30,
2019), aff’d, 831 F. App’x 536 (2d Cir. 2020) (summary
order) (dismissing 1985 conspiracy claim where the
complaint did “not provide any allegations or include
any facts from which the Court could conclude that
any individual(s) conspired to deprive Plaintiff of
equal protection of the laws or equal privileges and
immunities under the laws”); Friends of Falun Gong
v. Pac. Cultural Enter., Inc., 288 F. Supp. 2d 273, 279
(E.D.N.Y. 2003), aff’d sub nom., Friends of Gong v.
Pac. Culture, 109 F. App’x 442 (2d Cir. 2004)
(summary order) (finding that the plaintiff failed to
adequately plead a 1985(3) claim because “the
complaint [did] not include any facts that could
support an inference of a conspiracy among the
various defendants” and because the plaintiff “cite[d]
no facts from which a meeting of the minds could be
inferred”).
Plaintiff alleges that “the Airline Defendants
conspired—with each other, other carriers, and within
their own companies—to ban disabled flyers because
of a discriminatory motive.” Compl. 961. He further
alleges that “[t]he airline defendants that
discriminated against Plaintiff, the federal agencies
and lawyers, that encouraged, instigated, and/or
aided and abetted and the others were all conspiring
with others to deprive this Plaintiff of his civil rights,
in violation of his section.” Id. If 966. But as these
assertions lack any factual foundation, they are
merely conclusory allegations “masquerading as
factual conclusions.” Kirch v. Liberty Media Corp.,
71a
449 F.3d 388, 398 (2d Cir. 2006) (quoting Smith v. Loc.
819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir.
2002)); see also O’Handley v. Padilla, 579 F. Supp. 3d
1163,1184 (N.D. Cal. 2022), aff’d sub nom., O’Handley
v. Weber, 62 F.4th 1145 (9th Cir. 2023) (finding that
“generalized statements about [a private entity and
the government] working together ... do not support
an inference of an illegal conspiracy”). “Although
Plaintiff makes some allegations of relationships
between the alleged co-conspirators, [he] has done so
by way of freewheeling and speculative allegations
which fail to raise a reasonable inference of a
conspiracy.” Morpurgo, 697 F. Supp. 2d at 340. There
are forty-six Airline Defendants, domestic and
foreign, covering virtually every flight route in the
world. It is implausible that each of them conspired
with the other.
There are “no specific factual
allegations respecting a meeting of the minds, specific
communications between the [alleged conspirators],
or even concerted activities or coordinated efforts
between them.” Johnson v. City of New York, 669 F.
Supp. 2d 444, 451 (S.D.N.Y. 2009).
Construing the complaint liberally, as the Court must
do for a pro se litigant, the most that Plaintiff is able
to plead is that all, or virtually all, of the Airline
Defendants applied their Mask Mandate policies to
him at approximately the same time.
But the
Supreme Court has instructed that parallel conduct
alone, “without some further factual enhancement,” is
insufficient to establish a meeting of the minds or to
state a claim for conspiracy. Twombly, 550 U.S. at
556; Seklecki, 635 F. Supp. 3d at 23; Adreadakis, 2022
WL 2674194, at *9. “[L]awful parallel conduct fails to
72a
bespeak unlawful agreement.” Twombly, 550 U.S. at
556. And here, it would have been “natural” and
“rational” for each of the airlines, acting alone, to
adopt the policies each of them adopted. Id. at 566.
The President of the United States had issued an
Executive Order advising that masking while
traveling could mitigate the spread of COVID-19, Dkt.
No. 3-6 § 1, and the CDC had adopted the Mask
Mandate, applicable to each of the airlines—foreign
and domestic—requiring them to use their “best
efforts to ensure” that any person on their flights wear
a mask when boarding, disembarking, and for the
duration of travel. Compl.
99; CDC Order at 9.
Although the Mask Mandate exempted individuals
with disabilities, CDC Order at 5, it also permitted
airlines to take other measures to ensure passenger
safety, including requiring the person requesting an
exemption to obtain a negative COVID-19 test, to
obtain medical documentation by a licensed medical
provider, and to request an accommodation in
advance, CDC Order at 4 n.8. In those circumstances,
it would be surprising if any individual airline did not
impose the requirements that the Airline Defendants
imposed on any person requesting an exemption.
There also is nothing suspicious, or supportive of
conspiracy, in that many of the Airline Defendants
responded to Plaintiff approximately around the same
date.
From the Complaint and the documents
appended thereto, it appears that Plaintiff sent
requests for mask exemptions to most of the Airline
Defendants on or around September 1, 2021. The
timing of the responses he received were a function of
the timing of his requests, and not a function of any
pre-existing agreement among the Defendants, or a
73a
reflection of the time each airline formulated its
specific policy. Indeed, the Complaint’s allegations
strongly suggest independent action.
Although
certain of the airlines followed the same policies,
many did not. Compare Delta Mask Exemption
Policy, Compl. TH 335-337 (requiring same-day
clearance determined at the airport); with Spirit Mask
Exemption Policy, id.
595-602 (requiring
fortyeight-hour notice before flight of intent to request
mask exemption before arriving at airport for
screening). The Complaint therefore does not allege a
conspiracy.31
Next, even if Plaintiff sufficiently pleaded the
existence of a conspiracy, he has failed to allege that
the conspiracy was “motivated by some . . . invidious
discriminatory motive.” Cine SK8, Inc. v. Town of
Henrietta, 507 F.3d 778, 791 (2d Cir. 2007) (quoting
Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999)).
Plaintiff states that “[t]here is no doubt that
conspiring to prevent all disabled passengers from
flying who medically can’t safely wear a mask,
constitutes an invidious discrimination against a
protected minority.” Compl. 970. “Discriminatory
31 The only allegation of concerted action made by Plaintiff
is that in March 2022, certain of the airlines agreed
amongst themselves, through an organization named
Airlines for America, to urge the federal government to
drop the Mask Mandate. See generally Airlines Letter.
But that some of the airlines agreed amongst themselves
that the Mask Mandate should be relaxed— which would
serve their economic interests—hardly suggests that all of
the airlines agreed to discriminate against persons with
disabilities a year earlier.
74a
purpose . . . implies more than intent as volition or
intent as awareness of consequences. It implies that
the decisionmaker . . . selected or reaffirmed a
particular course of action at least in part ‘because of
not merely ‘in spite of,’ its adverse effects upon an
identifiable group.” Bray, 506 U.S. at 271-72. But
Plaintiff offers no “proof that the defendants’ impetus”
in creating and enforcing mask exemption policies
was motivated by animus against the disabled. See
LeBlanc Sternberg v. Fletcher, 67 F.3d 412, 427 (2d
Cir. 1995). To the contrary, the natural inference
from the facts that Plaintiff alleges are that each
airline adopted its policies as a reasoned response to
government regulations during a deadly global
pandemic. The airlines were not motivated by animus
to those who for medical reasons could not wear a
mask. They adopted the policies for medical reasons,
notwithstanding that the policies might have some
incidental effect on those who, for medical reasons,
might have challenges in wearing a mask.
Finally, Plaintiff fails to allege that the conspiracy
violated a federal right.
Plaintiff alleges that
Defendants’ actions deprived Plaintiff of his
constitutional right to interstate travel. “Because
‘Section 1985(3) provides no substantive rights itself,’
a deprivation of a constitutional right is a required
object of a conspiracy under 1985(3).” Ochoa v.
Bratton, 2017 WL 5900552, at *9 (S.D.N.Y. Nov. 28,
2017) (quoting Novotny, 442 U.S. at 372). To implicate
the right to interstate travel, a § 1985(3) conspiracy
must have as its “predominant purpose ... to impede
or prevent the exercise of the right of interstate travel,
or to oppress a person because of his exercise of that
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right.” Bray, 506 U.S. at 275 (quoting Guest, 383 U.S.
at 760). In this case, the right to travel was affected
only incidentally. “A conspiracy is not ‘for the
purpose’ of denying equal protection simply because it
has an effect upon a protected right.” Id. Rather,
“[t]he right must be aimed at; its impairment must be
a conscious objective of the enterprise.” Id. (internal
alterations, citations, and quotation marks omitted).
Here, although Plaintiff claims that the goal of the
conspiracy was to prevent individuals with
disabilities from flying, Plaintiff alleges no facts to
support that conclusion, even on the most generous
reading of the Complaint. The policies were enacted
in the midst of a global pandemic where masks—
whether or not Plaintiff believes in their efficacy—
were thought to reduce the spread of the virus. The
fact that the pandemic was the predominant purpose
behind Defendants’ masking policies is reflected by
the date they were put in place—during the pandemic
and in the aftermath of the President’s Executive
Order. And, as health conditions improved years
later, as Plaintiff repeatedly reminds the Court, the
executives of several airlines signed onto a letter
stating that the Mask Mandate was no longer needed.
The facts that Plaintiff alleges thus undercut the
inference he would have the Court draw. The policies
were not adopted because they would impede travel
but notwithstanding that they would impact travel.
III. 42 U.S.C. § 1986 Claim
Plaintiff next alleges that Moving Defendants, among
others, violated 42 U.S.C. § 1986 because they “were
aware of the conspiracy to interfere with the civil
76a
rights of the disabled by banning Plaintiff and
similarly disabled from flights, or requiring unlawful
and discriminatory demands, but did nothing to stop
it.” Compl. 988. Plaintiff alleges “[i]f each airline
defendant would have conveyed to each other that this
is illegal, immoral, and wrong, then the conspiracy
would have ended.” Id. 1001.
Section 1986 of Title 42 provides:
Every person who, having knowledge that any of
the wrongs conspired to be done, and mentioned in
section 1985 of this title, are about to be
committed, and having power to prevent or aid in
preventing the commission of the same, neglects
or refuses so to do, if such wrongful act be
committed, shall be liable to the party injured, or
his legal representatives, for all damages caused
by such wrongful act, which such person by
reasonable diligence could have prevented; and
such damages may be recovered in an action on
the case; and any number of persons guilty of such
wrongful neglect or refusal may be joined as
defendants in the action. 42 U.S.C. § 1986.
In short, it “provides a cause of action against anyone
who having knowledge that any of the wrongs
conspired to be done and mentioned in section 1985
are about to be committed and having power to
prevent or aid, neglects to do so.” Mian, 7 F.3d at 1088
(internal quotation marks omitted).
Moving Defendants argue that Plaintiffs Section 1986
claim should be dismissed because: (1) he fails to
allege a viable claim under Section 1985; and (2) the
claim is time-barred because it was filed more than
77a
one year after the challenged conduct. Dkt. No. 122
at 12-13; Dkt. No. 199 at 3-4.
Section 1986 provides “a remedy against individuals
who share responsibility for conspiratorial wrongs
under § 1985 by failing to make reasonable use of their
power to prevent the perpetration of such wrongs.”
Adickes v. S.H. Kress & Co., 398 U.S. 144, 222 n.28
(1970) (Brennan, J., concurring). “A § 1986 claim
must be predicated upon a valid § 1985 claim.” Mian,
1 F.3d at 1088; see Thomas, 165 F.3d at 147
(dismissing 1986 claim where 1985 claim failed
because 1986 claims are “predicated upon a valid §
1983 claim”); Brown v. City of Oneonta, N.Y., Police
Dep’t, 106 F.3d 1125, 1133 (2d Cir. 1997), abrogated
on other grounds by Gonzaga Univ., 536 U.S. 273
(same); Schlosser v. Droughn, 2021 WL 4263374, at *7
(D. Conn. Sept. 20, 2021). Because Plaintiff has failed
to allege a valid Section 1985 claim, Plaintiff also has
failed to allege a claim under Section 1986.
Independent of the failure as a matter of law,
Plaintiffs Section 1986 claim also fails because it is
time-barred. An action under Section 1986 must be
“commenced within one year after the cause of action
has accrued.” 42 U.S.C. § 1986; see Paige v. Police
Dep’t of City of Schenectady, 264 F.3d 197, 199 n.2 (2d
Cir. 2001); Farmer v. County of Westchester, 2022 WL
3902729, at *4 (S.D.N.Y. Aug. 30, 2022), appeal
dismissed, 2023 WL 2563753 (2d Cir. Mar. 16, 2023).
“Under federal law, the claim accrues when the
plaintiff knows or has reason to know of the harm or
injury that is the basis of his action.” Farmer, 2022
WL 3902729, at *4; see Rozz v. Town of Hempstead,
2023 WL 2731691, at *4 (E.D.N.Y. Mar. 31, 2023);
78a
Rich v. New York, 2022 WL 992885, at *9 (S.D.N.Y.
Mar. 31, 2022); Young v. Lord & Taylor, LLC, 937 F.
Supp. 2d 346, 354 (E.D.N.Y. 2013). Plaintiffs claims
against the Airline Defendants all accrued no later
than April 18, 2022, the date that the United States
District Court for the Middle District of Florida
vacated the Mask Mandate. See Health Freedom Def.
Fund, Inc., 599 F. Supp. 3d 1144; Compl. | 104. But,
the Complaint was filed more than one year later, on
May 1, 2023. See generally Compl. Plaintiffs Section
1986 claims are therefore untimely.
A. Constitutional Claims as to Defendant
Lawyers
Domestic Defendants correctly argue that the claims
against Land and Goldberg under Sections 1985(3)
and 1986 should be dismissed for the additional and
independent reason that those statutes may not be
used to sue an airline attorney for his or her work in
providing legal services to an airline client. Dkt. No.
122 at 14—15; Dkt. No. 199 at 4—5.
Construing Plaintiffs allegations broadly “to raise the
strongest arguments that they suggest,” Cruz, 202
F.3d at 597 (quoting Graham v. Henderson, 89 F.3d
75, 79 (2d Cir. 1996)), the Complaint could be read to
allege 1985(2) claims against Land and Goldberg. Cf.
Levy v. City of New York, 726 F. Supp. 1446, 1453
(S.D.N.Y. 1989). The first clause of that statute
makes it unlawful for “two or more persons ... to
deter, by force, intimidation, or threat, any party or
witness in any court of the United States from
attending such court, or from testifying to any matter
pending therein.” 42 U.S.C. § 1985(2).
79a
“The gist of the wrong at which § 1985(2) is directed is
. . . intimidation or retaliation against witnesses in
federal-court proceedings.” Haddle v. Garrison, 525
U.S. 121, 125 (1998). Congress did not “impose a
requirement of class-based animus on persons seeking
to prove a violation of their rights under the first
clause of § 1985(2).” Kush v. Rutledge, 460 U.S. 719,
726 (1983). The Second Circuit appears never to have
addressed the question whether the first clause of
Section 1985(2) applies to “a conspiracy to deter a
party from filing a suit in federal court.” Keating, 706
F.2d at 386 n.13.32 However, the weight of authority
holds that only witnesses and parties to a pending
matter in federal court can bring suit under Section
1985(2). See Bell v. N.Y. State Dep’t of Corr. & Cmty.
Supervision, 2019 WL 1305809, at *11 (N.D.N.Y. Mar.
22, 2019); Ruggiero v. City of Cortland, 2018 WL
5983505, at *9 n.6 (N.D.N.Y. Nov. 14, 2018); Empire
Merchs., LLC v. Reliable Churchill LLP, 2017 WL
7512900, at *10-12 (E.D.N.Y. Jan. 30, 2017)
(collecting cases). While the Complaint on its face
does not make reference to the language used by
Goldberg in responding to Plaintiffs grievances,
correspondence between Plaintiff and Goldberg
appended to the Complaint indicates that after
32 After Keating, the Second Circuit held that “[t]he
essential allegations of a § 1985(2) claim of witness
intimidation are (1) a conspiracy between two or more
persons, (2) to deter a witness by force, intimidation, or
threat from attending court or testifying freely in any
pending matter, which (3) results in injury to the plaintiff.”
Chahal v. Paine Webber Inc., 725 F.2d 20, 23 (2d Cir. 1984)
(emphasis added).
80a
Goldberg, outside counsel for American, Compl. 49,
refuted Plaintiffs accusation that his client had
violated the law, he stated that Plaintiff did “not have
the right to threaten and pursue baseless claims,” and
“advised that there will be a significant financial cost
for doing so,” based on a fee-shifting provision and
Federal Rule of Civil Procedure 11, Dkt. No. 3-20 at 1.
Plaintiff alleges that Land, an executive and associate
general counsel of JetBlue, conspired with JetBlue “to
violate Plaintiff s civil rights, and did not intervene to
prevent these discriminations, even though he did
have the power to do that.” Compl. 764.
The most that Plaintiffs allegations support is that
each of Goldberg and Land conspired with the
corporation by which they were employed and on
behalf of which they acted as agent. As Plaintiff has
been made aware by the Third Circuit in a decision
rejecting his 1985 claims against a private company’s
mask policy, see Abadi v. Target Corp., 2023 WL
4045373, at *1 (3d Cir. June 16, 2023) (per curiam),
cert, denied, 144 S. Ct. 235 (2023), under the
intracorporate conspiracy doctrine, “the officers,
employees, and agents of the same corporate entity
acting within their scope of employment,” including
outside counsel, “along with the corporate entity itself,
are considered a single entity and are legally
incapable of conspiring with each other,” Savarese v.
City of New York, 547 F. Supp. 3d 305, 343-44
(S.D.N.Y. 2021) (quoting Biswas v. City of New York,
973 F. Supp. 2d 504, 534 (S.D.N.Y. 2013)); see also
Hartline v. Gallo, 546 F.3d 95, 99 n.3 (2d Cir. 2008),
abrogation on other grounds recognized by Murphy v.
Hughson, 82 F.4th 177 (2d Cir. 2023). That doctrine
81a
applies to cases under Section 1985.
See, e.g.,
Herrmann v. Moore, 576 F.2d 453 (2d Cir. 1978); see
also Chance v. Cook, 50 F.4th 48, 52 (11th Cir. 2022);
Heffernan v. Hunter, 189 F.3d 405, 413-14 (3d Cir.
1999); Frierson-Harris v. Hough, 2006 WL 298658, at
*5 (S.D.N.Y. Feb. 7, 2006), aff’d, 328 F. App’x 753 (2d
Cir. 2009) (summary order). There is an exception to
the intracorporate conspiracy doctrine where
individuals within a single entity could be found liable
if they were pursuing personal interests wholly
separate and apart from the entity. See, e.g., Girard
v. 94th St. & Fifth Ave. Corp., 530 F.2d 66, 71—72 (2d
Cir.), cert, denied, 425 U.S. 974 (1976). But that
exception does not apply here. By communicating
their respective employer’s policies to Plaintiff,
Goldberg, as American’s counsel, and Land, as a
JetBlue executive and general counsel, were acting
within the scope of their responsibilities in their
correspondence with Plaintiff, rather than pursuing
any independent goal of discrimination, and thus
Plaintiffs claims fail. See, e.g., Farese v. Scherer, 342
F.3d 1223, 1231 (11th Cir. 2003); Johnson v. Nyack
Hosp., 954 F. Supp. 717, 723 (S.D.N.Y. 1997).
IV. Air Carrier Access Act
In Counts Ten through Eighteen, Plaintiff recites
causes of action under the ACAA and its
implementing regulations. The ACAA prohibits both
domestic and foreign air carriers from discriminating
against individuals with disabilities. 49 U.S.C. §
41705(a)(1). Count Ten alleges that all Defendants
violated the general nondiscrimination requirements
of the ACAA, as clarified by 14 C.F.R. § 382.11, by
82a
discriminating against him due to his disability in
their provision of air transportation. Compl.
10031057. In Count Eleven, id.
1058-1065, Plaintiff
alleges that the Airline Defendants violated the
regulation under the ACAA that requires air carriers
to have and update their policies to ensure
nondiscrimination, 14 C.F.R. § 382.13, by not
modifying their mask policies “to properly
accommodate Plaintiff and his disability,” Compl.
1062. Count Twelve, Compl.
1066-1073, alleges
that Airline Defendants violated the ACAA, and
specifically 14 C.F.R. § 382.15, “by not making sure
that their contractors were aware of the requirements
to properly accommodate Plaintiff and his disability,”
Compl.
1070. Count Thirteen, Compl.
10741082, alleges that “many of the Airline Defendants,”
and specifically JetBlue, violated the ACAA and 14
C.F.R. § 382.17 by limiting the number of persons who
were disabled on each flight, Compl. U 1078. Count
Fourteen, id.
1083-1092, alleges that the Airline
Defendants violated the ACAA and 14 C.F.R. § 382.19
by refusing to provide transportation on the basis of
his disability, Compl.
1087, and “[a]ll other
defendants assisted, aided and abetted, and
facilitated those violations,” id. U 1090.
Count
Fifteen, id.
1093-1100, alleges that the Airline
Defendants violated the ACAA and 14 C.F.R. § 382.21
by limiting access to transportation on the grounds of
his disability or on the grounds that he may have a
communicable disease, and the other defendants
assisted or facilitated these violations, Compl.
1097-1098. Count Sixteen, id.
1101-1108, alleges
that certain of the Airline Defendants violated the
ACAA and 14 C.F.R. § 382.23 by requiring him to
83a
produce a medical certificate, and some of the other
defendants “assisted, aided and abetted, and
facilitated” the discrimination, Compl.
1105-1106.
Count Seventeen, id.
1109-1116, alleges that the
Airline Defendants violated the ACAA and 14 C.F.R.
§ 382.25 by requiring him, as a disabled person, to
provide advance notice that he was traveling on a
flight, and that the remaining defendants assisted or
facilitated those violations, Compl.
1113-1114.
Count Eighteen, id.
1117-1124, alleges that the
Airline Defendants violated the ACAA and 14 C.F.R.
382.33 by imposing restrictions on him as a disabled
person that were not imposed on other passengers and
that all other defendants assisted or facilitated those
violations, Compl.
1121-1122.
Both Domestic and Foreign Defendants respond that
each of these claims fail because the ACAA does not,
expressly or impliedly, confer a private right of action
permitting enforcement by aggrieved individuals.
Dkt. No. 122 at 16-17; Dkt. No. 180 at 17-18.
The ACAA was passed by Congress in direct response
to the Supreme Court’s decision in U.S. Department of
Transportation v. Paralyzed Veterans of America, 477
U.S. 597, 605 (1986), which held that commercial
airlines were not subject to the nondiscrimination
provisions of the Rehabilitation Act by virtue of their
receipt of federal financial assistance. See S. Rep. No.
99-400 (1986), as reprinted in 1986 U.S.C.C.A.N.
2398, 2329.
Subsection 41705(a) of the ACAA
provides that an air carrier “[m]ay not discriminate
against an otherwise qualified individual on the
following grounds: (1) the individual has a physical or
mental impairment that substantially limits one or
84a
more major life activities; (2) the individual has a
record of such an impairment; (3) the individual is
regarded as having such an impairment.” 49 U.S.C. §
41705(a). A separate violation occurs “for each
individual act of discrimination prohibited by
subsection (a).”
Id. § 41705(b).
An aggrieved
passenger may file a written complaint alleging a
violation of federal statutes regulating air travel, see
id. §§ 40101—46507, including the ACAA, id. §
46101(a)(1). Under subsection 41705(c) of the ACAA,
the Secretary of Transportation is required to
investigate each complaint of discrimination made to
it under the ACAA, publish disability-related
complaint data in a manner comparable to other
consumer complaint data, and regularly review all
complaints received by air carriers alleging disability
discrimination, and report annually to Congress on
the results of such review. Id. § 41705(c)(1), (2), (3).
The ACAA also provides a limited right of access to
the federal courts by permitting an individual with a
“substantial interest” in an administrative decision of
the DOT to file a petition for review in a federal
appellate court, but provides that, in that proceeding,
DOT’s factual findings, “if supported by substantial
evidence, are conclusive.” Id. § 46110(a), (c).
In the first fifteen years after the ACAA’s enactment,
courts held that the law implied a private right of
action for injured passengers to seek damages against
the commercial airlines that discriminated against
them. See, e.g., Shinault v. Am. Airlines, Inc., 936
F.2d 796 (5th Cir. 1991), abrogation recognized by
Stokes v. Sw. Airlines, 887 F.3d 199 (5th Cir. 2018);
Tallarico v. Trans World Airlines, Inc., 881 F.2d 566,
85a
568-69 (8th Cir. 1989). But following the Supreme
Court’s 2001 decision in Alexander v. Sandoval, 532
U.S. 275 (2001), which held that a private right of
action could be found in a statute only when “the text
and structure” of the law required it, id. at 288, courts
shifted course. As the Second Circuit explained in
Lopez v. Jet Blue Airways, 662 F.3d 593 (2d Cir. 2011),
Sandoval required that “a review of the text and
structure of a statute yield a clear manifestation of
congressional intent to create a private cause of
action.” Id. at 596. After undertaking the analysis
required by Sandoval, the Second Circuit held that
that the ACAA did not create an implied private right
of action for passengers injured by the discriminatory
acts of a commercial airline. Id. at 597-98; see also
Boswell v. Skywest Airlines, Inc., 361 F.3d 1263,
1269—71 (10th Cir. 2004) (same); Love v. Delta
Airlines, Inc., 310 F.3d 1347, 1354-60 (11th Cir. 2002)
(same); Ruta v. Delta Airlines, Inc., 322 F. Supp. 2d
391 (S.D.N.Y. 2004) (same). The Second Circuit
determined that “although the ACAA is intended to
protect the passengers of air carriers against
discrimination on the basis of disability, the text and
structure of the statute show that Congress chose to
accomplish this goal through means other than
private enforcement actions in the district courts.”
Lopez, 662 F.3d at 598. The court concluded that
“[t]he statute does not expressly provide a right to sue
the air carrier, and that right should not be implied
because the statute provides an administrative
enforcement scheme designed to vindicate fully the
rights of disabled passengers.” Id.
86a
Plaintiff acknowledges that the Second Circuit has
held that there is no private right of action under the
ACAA. Compl. H 1012, 1016-1017, 1023, 1035. But
he argues that the Court should not follow Lopez and
should imply a private cause of action because “DOT
is not enforcing the ACAA, but rather ignoring
everything,” and in fact is itself “participating directly
in the violations of the laws.” Id. 1027; see also id.
H 1044 (“Considering these facts, being that there is
no real DOT enforcement, and certainly not robust nor
comprehensive nor elaborate, but Congress certainly
wanted them to be enforced. That means that the
Courts all need to acknowledge and correct their
mistakes. The Courts need to allow for a private right
of action, as is certainly the will of Congress when it
wrote these laws.”). Plaintiff asserts “in this case
where the Department of Transportation (‘DOT’)
completely refuses to act, and on the contrary, they
encourage the airlines to violate the laws, . . . there
must therefore be an implied private right of action.”
Id.
1009; see also Dkt. No. 172 at 12 (“The Circuit
Court cannot say that they cannot require the DOT to
enforce the law and simultaneously say that there is
a robust enforcement scheme”). However, the Second
Circuit has held that the ACAA’s administrative
enforcement scheme is “designed to vindicate fully the
rights of disabled passengers” and contains “no
implied private right of action.” Lopez, 662 F.3d at
597, 600. Contrary to Plaintiffs contentions, Dkt. No.
172 at 11—12, Dkt. No. 194 at 28-29, this Court is
bound by Second Circuit precedent “unless and until
it is overruled ... by the Second Circuit itself or unless
a subsequent decision of the Supreme Court so
undermines it that it will almost inevitably be
87a
overruled by the Second Circuit,” Grytsyk v. Morales,
527 F. Supp. 3d 639, 653 (S.D.N.Y. 2021) (quoting
United States v. Diaz, 122 F. Supp. 3d 165, 179
(S.D.N.Y. 2015), aff’d, 854 F.3d 197 (2d Cir. 2017));
Jones v. Coughlin, 45 F.3d 677, 679 (2d Cir. 1995) (per
curiam) (“A decision of a panel of [the Second Circuit]
is binding unless and until it is overruled by the
[Circuit sitting] en banc or by the Supreme Court.”);
see also In re Arab Bank, PLC Alien Tort Stat. Litig.,
808 F.3d 144,154 (2d Cir. 2015), aff’d sub nom., Jesner
v. Arab Bank, PLC, 584 U.S. 241 (2018); Cartica
Mgmt., LLC v. Corpbanca, S.A., 50 F. Supp. 3d 477,
486 (S.D.N.Y. 2014) (“[District courts and other
inferior courts are bound by decisions of the Court of
Appeals in the appropriate circuit unless overruled by
an intervening Supreme Court decision or other
change in law.” (quoting United States v. Moreno,
2000 WL 1843232, at *5 (S.D.N.Y. Dec. 14, 2000)
(Sotomayor, J.))).
Plaintiffs discontent with the DOT’s enforcement
decisions following his complaints to the agency does
not mean that this Court must or can create an
alternative remedy for him any more than it did for
the plaintiff in Lopez, who also did not prevail at the
administrative stage. See 662 F.3d at 595; see also
Marcus v. Ctrs. for Disease Control & Prevention, 2023
WL 3044614, at *9 (C.D. Cal. Feb. 21, 2023) (declining
the plaintiffs’ request to imply a private right of action
from a federal statute on the grounds that “the Court
is not at liberty to rewrite statutes or create rights of
action where none exist”). Plaintiff asserts that he
pursued administrative claims against airlines under
the ACAA and that he “won against many airlines at
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the DOT disability complaint division.” Dkt. No. 172
at 7; see also Compl.
182 (DOT found American
violated the law); 1028 (discussing DOT complaints
against JetBlue and American Airlines). To the
extent Plaintiff had a complaint with DOT’s
administration of the ACAA, his remedy lay with a
petition to review to the United States Court of
Appeals pursuant to 49 U.S.C. § 46110(a), and not
with an independent action under the ACAA in this
Court. Plaintiff in fact recognized this, explaining
that he sought review of DOT’s enforcement decisions
in two circuit courts.
Compl.
1029, 1033.
Plaintiffs petition to the United States Court of
Appeals for the District of Columbia Circuit was
dismissed for lack of jurisdiction on the grounds that
Plaintiff had not identified any legally required act
that DOT was required to take as required by the
Administrative Procedure Act. In re Abadi, 2022 WL
2541249, at *1 (D.C. Cir. Apr. 14, 2022) (per curiam),
cert, denied sub nom. Abadi v. Dep’t of Transp., 143 S.
Ct. 220 (2022). The Second Circuit also denied relief
to Plaintiff. Abadi v. Dep’t of Transp., 2021 WL
7500325, at *1 (2d Cir. Dec. 29, 2021), cert, denied, 142
S. Ct. 1694 (2022). 33 “Like the administrative-
33 Contrary to Plaintiffs contention, the circuit courts did
not hold that they could not “require the DOT to enforce
the ACAA laws,” Compl. 1036, they stated that the ACAA
does not require DOT to enforce the law in the way that
Plaintiff has decided is proper. See, e.g., In re Abadi, 2022
WL 2541249, at *1 (“A claim under the Administrative
Procedure Act for [an agency’s] failure to act ‘can proceed
only where a plaintiff asserts that an agency failed to take
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enforcement scheme, this limited right of [judicial]
review of an administrative decision suggests that
Congress did not intend to otherwise allow access to
federal courts under the statute.” Lopez, 662 F.2d at
597-98. Accordingly, all of Plaintiffs claims arising
out of the ACAA fail as a matter of law.
V. Rehabilitation Act
In Count Nineteen, Plaintiff alleges that the Airline
Defendants based in the United States violated
Section 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 701 et seq., by discriminating against him on
the basis of his disability, and that some of the other
Defendants, including the U.S. airlines’ employees
and counsel, facilitated this discrimination. Compl.
H 1125-1150.
As a threshold matter, because “the Rehabilitation
Act does not provide for individual liability,” Goe v.
Zucker, 43 F.4th 19, 35 (2d Cir. 2022), Plaintiffs
Rehabilitation Act claims against any individuals fail
as a matter of law. Plaintiffs claims against the
Airline Defendants require further analysis.
The
Rehabilitation Act
of
1973
prohibits
discrimination against handicapped or disabled
persons in any program or activity receiving Federal
financial assistance. Section 504 of the Rehabilitation
Act provides in pertinent part:
No otherwise qualified individual with a disability
in the United States, as defined in section 705(2)
of this Title, shall, solely by reason of her or his
a discrete agency action that it is required to take.” (quoting
Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004))).
90a
disability, be excluded from the participation in,
be denied the benefits of, or be subjected to
discrimination under any program or activity
receiving Federal financial assistance. 29 U.S.C. §
794(a).
“To establish a prima facie case under the
Rehabilitation Act, a plaintiff must allege: [1] that he
or she is a person with disabilities under the
Rehabilitation Act, [2] who has been denied benefits
of or excluded from participating in a federally funded
program or [activity], [3] solely because of his or her
disability.” Bryant v. N.Y. State Educ. Dep’t, 692 F.3d
202, 216 (2d Cir. 2012), cert, denied, 569 U.S. 958
(2013); see Hogan u. Mahabir, 2023 WL 3628554, at
*4 (E.D.N.Y. May 24, 2023). There is no dispute that
Plaintiff has a disability as defined by the
Rehabilitation Act. Moving Defendants do, however,
dispute whether the second and third elements are
satisfied.
A. Denial of Benefits or Exclusion from
Participation in a Federally Funded
Program or Activity
Plaintiff alleges that he has sufficiently alleged
discrimination in a program or activity receiving
federal financial assistance because the U.S.-based
Airline Defendants “banned ... all passengers with
disabilities that cause them not to be able to wear a
mask” while receiving “federal contracts and/or
funding,” and accepting “federal financial assistance
during the COVID-19 pandemic,” and thus were
subject to the Rehabilitation Act. Compl. ^T[ 1129,
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1133. Plaintiffs claim is premised specifically on the
funding disbursed through the Payroll Support
Program (“PSP”) authorized under the Coronavirus
Aid, Relief, and Economic Security Act (“CARES Act”),
Pub. L. 116-136, 134 Stat. 281 (2020). Compl. 1147.
The U.S.-based airlines do not contest that Plaintiff is
disabled within the meaning of the Act, but dispute
whether, by denying him access to their flights, they
excluded him from a “program or activity receiving
Federal financial assistance” within the meaning of
the Rehabilitation Act, and even if they did, whether
Plaintiff was excluded on the basis of his disability.
See Dkt. No. 122 at 17- 21; Dkt. No. 180 at 18-22.
The question thus is whether carriage on the airlines
became a “program or activity” receiving federal
financial assistance by virtue of the PSP funding. The
phrase “program or activity” is defined by the
Rehabilitation Act to mean, inter alia, all of the
operations of an entire corporation “(i) if assistance is
extended to such corporation ... as a whole; or (ii)
which is principally engaged in the business of
providing education, health care, housing, social
services^ or parks and recreation.” 29 U.S.C. §
794(b)(3)(A).
Plaintiff has not alleged that the COVID-19-related
assistance funded the corporation as a whole within
the meaning of Section 504, nor could he. The airline
recipients were not “engaged in the business of
providing education, health care, housing, social
services, or parks and recreation.” The funding also
was not appropriated to each airline “as a whole.”
Rather, it was designated for the particular purpose
of “the continuation of payment of Wages, Salaries,
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and Benefits to the Employees of the Recipient,
including the payment of lost wages, Salaries, and
Benefits to Returning Employees.” OMB 1505-0263
at 5. As other courts have explained, “the phrase ‘as
a whole’ means that federal assistance is extended to
the organization otherwise than for some specific
purpose—put differently, that the recipient of federal
funds received those funds as general assistance.”
Collins v. Giving Back Fund, 2019 WL 3564578, at
*11 (S.D.N.Y. Aug. 6, 2019) (citing S. Rep. No. 100-64,
at 17 (1987), as reprinted in 1988 U.S.C.C.A.N. 3, 19).
The legislative history of Section 504 reveals that
money distributed to an entity “‘as a whole’ refers to
situations where the corporation receives general
assistance that is not designated for a particular
purpose.” S. Rep. No. 100-64 (1987). For example,
federal financial assistance to a company “for the
purpose of preventing the company from going
bankrupt” constitutes “assistance to a corporation ‘as
a whole,”’ whereas aid “which is limited in purpose,”
such as funding for job training, “is not considered aid
to the corporation as a whole, even if it is used at
several facilities and the corporation has the
discretion to determine which of its facilities
participate in the program.” Id. Similarly, aid to
support “one among a number of activities” of an
entity would “not be assistance ... as a whole.” Id.
Here, the program limited the purposes for which
recipients could use payments. The CARES Act was
“aimed at helping businesses make payroll and pay
operating expenses in order to keep people employed
through the economic downturn.” Lucius v. Fort Taco,
LLC, 2022 WL 335491, at *2 (S.D. Fla. Jan. 5, 2022)
(quoting In re Gateway Radiology Consultants, P.A.,
93a
983 F.3d 1239, 1247 (11th Cir. 2020)). The PSP
agreements were a means through which the CARES
Act met that end.
Plaintiff recognizes that many courts have held that
the funds that the Airline Defendants received did not
constitute a subsidy or federal financial assistance
sufficient to bring them generally within the coverage
of the Rehabilitation Act. Compl. 1147. He argues,
however, that those decisions are mistaken because
each U.S.-based Airline Defendant, in connection with
the receipt of CARES Act funds, signed the “Payroll
Support Program 3 Agreement and Extension” with
the government, agreeing that they would comply
with Section 504 of the Rehabilitation Act. Id.
1130, 1147-1150.
The PSP agreements that the U.S.-based Airline
Defendants signed do not give rise to a claim by
Plaintiff under Section 504. The agreements do not
suggest that funding is being extended to each of the
U.S.-based Airline Defendants as whole entities.
Rather, the agreements extend funding for a limited
purpose and, at most, obligate the airlines to comply
with Section 504 in connection with that limited
purpose or program or activity. They do not and
cannot expand the scope of Section 504. See, e.g.,
Ladzinski v. Sperling S.S. & Trading Corp., 300
F.Supp. 947, 954 (S.D.N.Y. 1969) (parties cannot by
agreement expand the scope of law passed by
Congress).
The PSP agreements are made in
connection with the provision of financial assistance
for the payment of employees. To the extent that the
federal government extended funding in connection
with a program or activity, it may follow then that the
94a
airlines are obliged to comply with Section 504 with
respect to that program or activity. It does not follow
that the airlines are required to comply with Section
504 in connection with all of their activities. 34 Cf.
Ruiz v. City of Rockland, 609 F.3d 486, 491 (2d Cir.
2010) (allegations of employment discrimination
under the Rehabilitation Act are treated differently
from other allegations of discrimination).
The Complaint may also be read to suggest that the
Court should recognize a right that Plaintiff has
under the PSP contracts directly, in breach of
contract. But that theory also does not help Plaintiff.
Plaintiff is not a party to the PSP contracts and
therefore has no right to enforce them, even if it could
be said that the U.S.-based Airline Defendants
breached them. See, e.g., England u. United Airlines,
Inc., 627 F. Supp. 3d 963, 968 (N.D. Ill. 2022); see
Suffolk County v. Long Island Lighting Co., 728 F.2d
52, 63 (2d Cir. 1984) (“[A]bsent a contractual
relationship there can be no contractual remedy.”).
Plaintiff does not allege that he is a third-party
beneficiary to the contract, nor could he. See, e.g.,
34 Plaintiff relies heavily on these contracts to make his
Rehabilitation Act claims, and quotes selectively from the
contracts, see Compl.
1149, but does not append the
complete, executed contracts to his Complaint. However,
the Court finds that these public documents are
incorporated by reference into the Complaint because the
Complaint makes “a clear, definite and substantial
reference to the documents.” Helprin v. Harcourt, Inc., 277
F. Supp. 2d 327, 330-31 (S.D.N.Y. 2003); see also Lateral
Recovery, LLC v. Cap. Merch. Servs., LLC, 632 F. Supp. 3d
402, 436 (S.D.N.Y. 2022).
95a
Thomas v. UBS AG, 7QQ F.3d 846, 852 (7th Cir. 2013)
(“[A] government contract that involves no negotiable
terms but merely brings the other party to the
contract under a statute (or, we can assume, a
regulation) does not confer thirdparty beneficiary
status on anyone.”); see also Caires v. JP Morgan
Chase Bank, N.A., 880 F. Supp. 2d 288, 302 (D. Conn.
2012) ([C]ourts have rejected the contention that a
member of the public can be considered a third party
beneficiary of a government contract on the sole basis
that [the] contract was intended to benefit the public
absent clear intent indicating the public’s right to
enforce the contract as a third party beneficiary.”). At
the very most, Plaintiff is an incidental, rather than
an intended third-party beneficiary. Grand Manor
Health Related Facility, Inc. v. Hamilton Equities Inc.,
941 F. Supp. 2d 406, 418 (S.D.N.Y. 2013). But under
federal common law, which governs a court’s
interpretation of federal government contracts,
Hillside Metro Assocs., LLC v. JPMorgan Chase Bank,
Nat. Assn, 747 F.3d 44, 49 (2d Cir. 2014), “a third
party must be an intended, rather than incidental,
beneficiary in order to enforce a contract,” Kinek v.
Gulf& W., Inc., 720 F. Supp. 275, 280 (S.D.N.Y. 1989),
aff’d sub nom., Kinek v. Paramount Commc’ns, Inc.,
22 F.3d 503 (2d Cir. 1994).35 In general, “the contract
35 Federal common law directs courts, in interpreting
federal government contracts, to look to “general principles
of contract law,” Dobson v. Hartford Fin. Servs. Grp., Inc.,
389 F.3d 386, 399 (2d Cir. 2004), and, with respect to
whether a third-party beneficiary may sue to enforce a
contract, “look[] to the same considerations as does the
Restatement of Contracts,” Grand Manor Health Related
96a
terms [must] ‘clearly evidence an intent to permit
enforcement by the third party in question.’” Hillside
Metro, 747 F.3d at 49 (quoting Premium Mortg. Corp,
v. Equifax, 583 F.3d 103, 108 (2d Cir. 2009)); see also
McNeill v. N.Y.C. Hous. Auth., 719 F. Supp. 233, 24849 (S.D.N.Y. 1989) (Walker, J.) (“Under . . . federal
common law . . . , a third party may have enforceable
rights under a contract if the contract was made for
her direct benefit.”). Moreover, to the extent that
Circuit precedent directs the Court to follow the
Restatement’s rule as to whether a third-party
beneficiary may sue to enforce a contract, see Hillside
Metro, 747 F.3d at 49, “[t]he Restatement sets forth a
heightened standard for evaluating intended third
party beneficiary status where a government agency
is a party to the contract,” Fero v. Excellus Health
Plan, Inc., 236 F. Supp. 3d 735, 767 (W.D.N.Y. 2017);
see also Granite Partners, L.P. v. Bear, Stearns & Co.
Inc., 58 F. Supp. 2d 228 (S.D.N.Y. 1999). “In the case
of government contracts, ‘individual members of the
public are treated as incidental beneficiaries unless a
different intention is manifested.’” Fero, 236 F. Supp.
3d at 767 (quoting Restatement (Second) of Contracts
§ 313 cmt. a (1981)).
The PSP agreements do not clearly manifest an intent
to benefit or permit enforcement by any private party,
nor does Plaintiff so allege. See, e.g., Abu Dhabi Com.
Bank v. Morgan Stanley & Co., Inc., 651 F. Supp. 2d
155, 185 (S.D.N.Y. 2009) (dismissing claim by alleged
third-party beneficiary where the plaintiffs “failed to
Facility, 941 F. Supp. 2d at 418 (quoting Rivera v. Bank of
Am. Home Loans, 2011 WL 1533474, at *4 (E.D.N.Y. Apr.
21, 2011)).
97a
allege contract language or other facts sufficient to
give rise to a plausible inference that any of these
contracts clearly evidence an intent to permit
enforcement by [the] plaintiffs” (internal quotation
marks omitted)); see also England, 627 F. Supp. 3d at
971-72.
B. Exclusion on the Basis of Disability
Finally, even if Plaintiff did sufficiently allege that the
U.S.-based Airline Defendants received funds that
sufficed to subject them to the Rehabilitation Act, he
has not satisfied the third element necessary to state
a claim: exclusion on the basis of\ds disability. “The
third element is satisfied if a plaintiff plausibly pleads
that defendants failed to ‘mak[e] reasonable
accommodations to the known physical or mental
limitations of an ... individual with a disability.’” Doe
v. U.S. Sec’y of Transp., 2018 WL 6411277, at *7
(S.D.N.Y. Dec. 4, 2018) (alterations in original)
(quoting 42 U.S.C. § 12112(b)(5)(A)). Each airline, as
permitted by federal law, instituted their own mask
exemption policies for individuals who could not safely
wear a mask due to their disabilities. That Plaintiff
himself believes these exemption policies to be
unreasonable does not make them so. The airlines’
decisions to deny Plaintiff air transport was “not
based upon [Plaintiffs] classification” as an individual
with a disability, “but rather upon the type of
modification that he requested.” Flight v. Gloeckler,
68 F.3d 61, 64 (2d Cir. 1995) (per curiam). Merely
failing to accept Plaintiffs three-line Doctor’s Note as
a basis for establishing Plaintiffs disability does not
constitute discrimination, because, “[although a
public
entity
must
make
‘reasonable
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accommodations,’ it does not have to provide a
disabled individual with every accommodation he
requests or the accommodation of his choice.”
McElwee v. County of Orange, 700 F.3d 635, 641 (2d
Cir. 2012) (citing Fink u. N.Y.C. Dep’t of
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